source: Caselaw Access Project

author: LAMM, P. J.

license: Public Domain

text:
    ANNA MARIE LOUISA KNOST, Appellant, v. LOUISA KNOST et al.
    Division One,
    June 14, 1910.
    1. WILL: Restraint on Marriage. A provision in a will in total restraint of marriage and cutting down a devise to a daughter, if she should ever marry, to an estate equal to that given to testator’s other children, is void.
    2. -: -: Freedom: Vested Estates. Courts often struggle with perplexities to maintain a free right to testamentary disposition, and the.right to freely marry subject to reasonable regulations. Blit conditions subsequent in testamentary devises of real estate, providing for, or obviously and intentionally tending to, a total restraint of marriage by a daughter are odious, tend to encourage immorality and are against the liberty of the law; and where an estate was by the will first vested in testator’s daughter by unequivocal provisions," and the provision against her marriage is plainly a condition subsequent, and cuts down her vested estate, the condition is void, and the estate absolute.
    Appeal from St. Louis City Circuit Court. — Don. Daniel D. Fisher, Judge.
    Reversed (with directions).

      Wm. Dilkerbaumer for appellant.
    (1) The provision of the will is a condition subsequent, upon the happening of which plaintiff’s estate is forfeited, that is, diminished from a sole ownership to that of a one-sixth interest; and being in general restraint of marriage, against public policy, and void, the estate vests in plaintiff free from the condition. Walsh v. Mathews, 11 Mo. 131; Williams v. Cowden, 13 Mo. 211; Dumey v. Schaefer, 24 Mo. 170; Wither-spoon v. Brokau, 85 Mo. App. 169; Bellairs v. Bellairs, 18 L. R. Eq. 510; Smythe v. Smythe, 90 Ya. 639; Randal v. Marble, 69 Me. 311; Jenkins v. Merritt, 17 Fla. 304; Kennedy v. Alexander, 21 App.. Cas. (D. C.) 424; Barksdall v. Elam, 30' Miss. 694; In re Hamilton, 1 Ont. L. R. 10; Perrin v. Lyon, 9 East 170; Water v. Tazewell, 9 Md. 291; Maddox v. Maddox, 11 Grat. (Ya.) 804; Phillips v. Fergnson, 85 Ya. 511; 2 Jarman, Wills (16 Ed.), p. 893; Chalfaut v. Payton, 91 Ind. 202; Sterling v. Sinneekson, '5 N. J. L. 756; In re Alexander 85 Pac. (Cal.), 308; In re Haight Will, 64 N. Y. S. 1029, 51 App. Div. 310. (2) It is proper in this proceeding to enter a decree declaring the clause in the will to he against public policy and void, and that the defendants have no estate, vested or contingent, therein. Clark v. Ins. Co., 52 Mo. 272; Bank v. Evans, 51 Mo. 335; Foote v. Sanders, 72 Mo. 616; Walsh v. Mathews, 11 Mo. 131; Dumey v. Schaeffer, 24 Mo. 170; 30 Am. and Eng. Ency. Law (2 Ed.), p. 805; R. S. 1899; secs. 650, 651, 652; Ball v. Woolfolk, 175 Mo. 278; Graton v. Lumber Co., 189 Mo. 322; Htter v. Sidman, 170 Mo. 284; Mueller v, Buenger, 184 Mo. 458; Spore v. Land Co., 186 Mo. 656; Burkham v. Manewall,-195 Mo. 500.
   LAMM, P. J.

— Suit in equity to free a devise in a will from a condition in restraint of marriage. Defendants, summoned, defaulted and the bill was taken as confessed. Non obstante, on the merits, the decree went against plaintiff and the cause comes up on appeal. /’ ' V

The facts follow: Anton F. Knost died testate, a resident of St. Louis, leaving a widow, Louisa, six children (parties hereto, all adults) and seized of an estate real and personal.

By item one of the will he devised his residence and certain personal property to his wife Louisa for life with remainder over to plaintiff, Anna Marie Louisa, his eldest daughter.

By item two certain lots in Shrewsbury park in the county of St. Louis were devised to Anna Marie Louisa.

By item three he gave each o£ his six children a heqnest of $2000, with certain directions as to time of payment, investment, etc.

By item four the testator made directions about repairs and taxes on the residence devised to his wife. It was- also provided that she, in lieu of dower, should receive for life one-half the income of his whole estate after paying taxes and repairs on his residence and the bequests to his children. Anna Marie Louisa was then made residuary legatee, executrix without bond, and donated power to sell personal assets in accordance with her judgment. One Tontrup is mad'e executor, if Anna Marie Louisa should die before final settlement.

a The clause on which the case hinges then follows, vi&t ‘ In the event of the marriage of my said daughter Anna Marie Louisa, she is to receive 'only the same proportion of my estate as each of the other children, and in that event, the income and revenue of my entire estate, after payment of taxes, repairs and insurance on said property, after setting aside the two thousand dollars bequeathed to each of my children, shall be paid to my said wife Louisa, during her lifetime, and the remainder of my estate shall be equally divided among my said children, share and share alike.”

Plaintiff served as executrix, made final settlement, and has not married. The total value of testator’s-estate is not shown, but it does appear that the estate of Anna Marie Louisa is cut down appreciably by the provision relating to marriage — i. e., if she does not marry she gets a larger estate than if she does marry.

The point in judgment is single and narrow. We all agree the provision is void. This, because:

(a). While marriage is considered by our statute law a civil contract (R. S. 1899, sec. 4311) yet (in a comprehensive sense) it is something more, vis., it creates a status in which the State has a vital interest both in its creation and dissolution. Matrimony is a status so vital to the welfare of the State and' society that, in the laws of some civilized nations, and in the opinion of many people of refined sensibilities in all civilized nations, it is a holy sacrament and draws tenderness, beauty, health and vigor from the solemn sanctions of religion itself. This is shadowed forth by our statute permitting marriage to be solemnized by ministers of the Gospel. [E. S. 1899, sec. 4314.] Doubtless even those who stickle for the view that marriage is a mere civil contract, and not a whit more, would héstitate to strip it of the sentimental significance of grounding it on, or, more accurately speaking, solemnizing it by, religious rites as our present statute allows. It was said of an old Greek, whose name I have forgotten, that, being shipwrecked, and swimming to an unknown shore, he presently discovered geometrical figures sketched upon the sand whereat he fell upon his knees and thanked his gods that in his extremity of fortune he had reached a land inhabited by Greeks. If such reasoning castaway had reached a land where there was no regulation of marriage by manners, maxims, customs, ordinances and laws, he would have known by that token he had come to one of stark savagery or barbarism.

The old Eoman maxim was that marriage ought to be free. Matrimonia debent esse libera. [2 Kent Com. 102.] The Eoman idea was broad enough to include voluntary divorces, with the voluntary right, following the voluntary divorce, to take another wife— a loose application of the maxim utterly abhorrent to modern civilization as a whole — one now entertained only by those whimsical and inconsequent dreamers who, amusing themselves with theories beyond the boundary of common sense, like Dr. Holmes’s silly hen that often cackled when she laid no egg, cackle when they revamp some out-worn and exploded notion, and dub it reform, progress or what not.

But the Roman maxim involved the idea of freedom on'another side, vis., the right'to freely marry,' subject to reasonable regulations, and this wise view of it has come down to us as a settled and cherished doctrine.

Says Montesquieu (Montesquieu’s Spirit of Laws, Nugent’s Translation, vol. 2, book 23, chap. 21): “By the ancient institutions, the natural right which every one had to marry, and beget children, could not be taken away. Thus when they received a legacy, on condition of not marrying, or when a patron made his freed-man swear, that he would neither marry nor beget children, the Papian law annulled both the condition and the oath. The clauses, ‘on continuing in widowhood,’ established amongst us, contradict the ancient law, and descend from the constitutions of the emperors, founded on ideas of perfection.” The learned author naively adds (by way of philosophical reflection): “God forbid, that I should here speak against celibacy, as adopted by religion; but who can be silent, when it is built on libertinism; when the two sexes corrupting each other, even by the natural sensations themselves, fly from a union which ought to make them better, to live in that which always renders them worse? It is a rule drawn from nature, that the more the number of marriages is diminished, the more corrupt are those who have entered into that state; the fewer married men, the less fidelity is there in marriage ; as when there are more thieves, more thefts are committed. ’ ’

I find the real philosophy of the matter nowhere formulated in a sounder, or more scholarly disquisition than in note “q” to sec. 10, book 1, Ponbl. Eq. (4 Am. Ed', by Laussat), p. 196, vis.: “It may be laid down' as a fundamental proposition, that marriage ought to be free; by which is intended, that as the parties contracting are principally interested in the contract, they ought to possess all those faculties which are requisite to the validity of every other species of contract, which Puffendorff defines to be 1st. A physical power; 2d, A moral power of consenting; 3d, A serious and free use of them; the rather, as the contract of marriage is connected with more important consequences than any other species of contract, insomuch as it is less easily dissolved; and though dissolved, if there be children, many of its consequent ties remain. But though it be true, that freedom from restraint, as it encourages this species of contract, is of importance to the State, it must not be considered as a principle to be pursued to its whole extent, and at every hazard; for if it were, it would be found that this principle, the well-regulated and bounded influence of which is capable of inducing real benefit to society, is, in its excess or abuse, like other good principles, destructive of the very interests which it professes to consult. The claims of parental authority, controlled as they are by the law of England, merit considerable respect; nor has the right which individuals have of qualifying their bounty been disregarded. The only restrictions which the law of England imposes, are such as are dictated by the soundest policy, and approved by the purest morality; — that a parent professing to be affectionate shall not be u/njust; that professing to assert his own claim, he shall not disappoint or control the claims of nature, nor obstruct the interests of the community; that what purports to be an act of generosity, shall not be allowed to operate as a temptation to that which militates against nature, morality, or so%md policy, or to refrain from doing that which would serve and promote the essential interests of society; are rules which cannot reasonably be reprobated as harsh infringements of private liberty, or even reproached as unnecessary restraints on its free exercise. See Puff., Law of Nature and Nations, b. 6, c. 2, s. 14. On these considerations are founded those distinctions which have, from timé to time, been recognized in our courts of equity, respecting testamentary conditions, •with reference to marriage.”

In applying such general propositions, courts meet with many perplexities in struggling to maintain the free right to testamentary disposition while at one and the same time preserving the free right to marry. There have been in some cases introduced subtleties and refinements in distinguishing between' conditions precedent and conditions subsequent, between conditions and limitations, between devises of real estate and bequests of personal property and “gifts over,” so that the line of demarkation between void conditions and reasonable limitations does not always run plain and true in case-made law.

Speaking to the point, by way of summary, Pomeroy well deduces from the cases the following propositions as live verities of modern law (2 Pom. Eq. Juris. [3 Ed.], sec. 933): “1. It is ordinarily said that all conditions annexed to gifts which prohibit marriage generally and absolutely are void and inoperative. This, however, is a very inaccurate mode of statement, since a condition precedent annexed to a devise of land, even if in complete restraint, will, if broken, be operative and prevent the devise from taking effect. "With this limitation all conditions in general restraint are void. Also, if a condition is not in absolute restraint, but is of such form that it will probably operate as a general prohibition, it is, under the same limitation, void. 2. On the other hand, conditions annexed to testamentary or other gifts, in partial and reasonable restraint of marriage, are valid and operative; such, for example, as that a devisee or legatee shouldnotmar•ry under age, or should not marry without the consent of parents, guardians, or trustees, or should not marry a particular person, or a person belonging to' a particular religious communion. In the application of these two propositions, certain special rules have been settled with more or less certainty, depending upon the facts of the condition being precedent or subsequent, of there being, or not, a gift over upon its breach, and of the original gift to which the condition is annexed being one of real or of personal estate. The system which has been developed is a partial compromise between the technical common-law rules concerning conditions, and the doctrines of the Roman law, which made void all attempts to restrict the perfect freedom of marriage; and, like most compromises, it has some incongruous features. Iff a condition is precedent and annexed to a gifja of land, it operates as at the common law; when broken, it prevents the estate from vesting, whatevei be its nature; when annexed to a gift of personal property, if general or unreasonable, it is wholly void, and the gift takes effect; if partial and reasonable, it. is' operative. When a condition is subsequent and annexed to a gift of land, if general, it is void, and although broken, the estate of the donee continues; if partial and reasonable, it is operative, and on its breach the estate of the donee is defeated. When a subsequent condition is annexed to a gift of personal property, if general, it is void; if partial and reasonable; and there is a gift over, it is operative, and upon its breach the interest of the first donee ceases, and the gift over takes effect; but if there is no gift over, then the condition is said to be in terrorem merely, and is inoperative. ”

Subject to the modifications thus suggested, it may be said that contracts in restraint of marriage are in; the teeth of reason and public policy, tend to immoral- : ity by subverting nature, and are void; that conditions subsequent in deeds and testamentary devises of real estate providing for, or obviously and intentionally tending to, a total restraint of marriage are odious and held to the utmost rigor and strictness; that conditions precedent are sustained because they prevent the estate from vesting, which is in accord with the free right of testamentary disposition; and that on the nice points of learning which arise in the application of the law to concrete cases, the courts lie under a bounden duty to feel for the intent of the testator to see if it contravenes public policy.

There is only one main qualification to the rule against total restraint of marriage and that is an exception touching widows. (See the excerpt from Montesquieu’s Spirit of Laws, supra.) It seems settled law that men have a sort of mournful property right, so to speak, in the viduity of their wives and that a grant or devise to them may be defeated by the violation of a condition subsequent providing for the grant or devise becoming inoperative or reverting in case of remarriage. The exception has been put on sundry grounds, and courts have not always been able to find common reasons to sustain it. But it has been long established and is almost universally followed. It is the rule in this State. [Walsh v. Mathews, 11 Mo. 131; Dumey v. Schoeffler, 24 Mo. 170; Gaven v. Allen, 100 Mo. 293; Chrisman v. Linderman, 202 Mo. l. c. 623 et seq.]

It is a curiosity in the law that when the boot is on the other foot and a wife makes a grant, which by condition subsequent is to be defeated on the remarriage of her husband, the general doctrine that conditions in restraint of marriage are void as contra bonos mores has been applied with vigor (see, for example, Waters v. Tazewell, 9 Md. 291), though the English rule seems to be the other way (2 Jarman on Wills [6 Ed.], 886), and there are later decisions following the English rule. [2 Pom. Eq. 933, supra.] Solid ground for any distinction between husband and wife in this regard is hard to make out. It was once tartly but jshrewdly remarked by a pundit of the bar that the distinction now up may have its root in the fact that 'men both make and construe the law and women stand voiceless in that behalf. Whether this be so or not may be left to the decision of some cases involving the point. We need not meddle with it, for no exception or incongruity militates against the general rule.

(b). Applying the general doctrine of paragraph a, it is apparent at once that an estate first vested in Anna Marie Louisa by unequivocal provisions of the will; that the provision against marrying is plainly a condition subsequent; that it cut down her vested estate and, being void (as obviously and of set purpose in restraint of her marriage) it must be brushed to one side, leaving the undiminished estate standing. Says Sheppard (1 Sheppard’s Touchstone, Hilliard’s Am. Ed., *132): “And hence also it is that such conditions as. are against the liberty, of law, as that a man shall not marry or the like, are void. . . . And in all these cases if the condition be subsequent to the estate, the condition only is void, and the estate good and absolute; if the condition be precedent (this, as frequently observed, is a limitation, not a condition), the condition and estate both are void for an estate can neither commence nor increase upon an unlawful condition.” To this we may add that neither may a vested estate decrease on an unlawful condition subsequent. These conclusions determine the case.

The learned chancellor held the will produced equality among the children of testator if the condition be enforced in case of the marriage of Anna Marie Louisa. Therefore, the condition was not void. But we cannot allow that conclusion. The equitable maxim, Equality is equity, if applied to wills with unaccommodating strictness in all cases, would subvert most of them. A will may not be condemned because it suggests inequality, at first blush, on the face of the instrument; nor may a condition, made void by the policy of the law, be sustained in equity because it may at first blush result in equality. The very object of any testamentary disposition of property whatever is that inequality, that is, an unequal division of testator’s estate, may spring,- for this apparent inequality is hut the result of domestic equities known to the testator, which he may enforce by giving to one child one amount and) to another a different one. [Conner v. Skaggs, 213 Mo. l. c. 348-9.]

In the will in question the restraint on marriage was total. It was not leveled at marriage to a given person or to a communicant of a given church, or limited to a certain age or to a reasonable time. Any marriage whatever, however appropriate, at any time however reasonable, to any person however suitable, took from Anna Marie Louisa a part of the estate vested in her by the will. Testator had no right to coerce the daughter in that way against nature. It was clearly in terrorem and therefore abhorrent to the law.

Learned counsel has diligently marshaled an array of cases sustaining that view of it. Wé will not quote from them. They but apply the general doctrine, already set forth, to the varying facts of particular cases — some of- them running on all-fours with this. See Williams v. Cowden, 13 Mo. 211, which early put this court in line with that general doctrine.

. The judgment is reversed with directions to enter a decree granting plaintiff the relief prayed by her bill.

All concur.


author: YALLIANT, J.

text:
    CITY OF ST. LOUIS, Appellant, v. WILLIAM M. ANDERSON et al.
    Division One,
    June 14, 1910.
    CONTRACT TO CONSTRUCT SEWER: Suit on Bond by City. The city cannot maintain a suit on the guaranty bond of a contractor for a sewer which was to be paid for in special taxbills, for the excess which the property-owners have been compelled to pay because the contractor failed to construct the sewer and the city was compelled to relet the work at a higher price. The damage was to the property-owners, and the city, either as ■trustee for them or on its own account, cannot maintain suit for that damage.
    Appeal from St. Louis City Circuit Court. — Eon. Bobt. M. Foster, Judge.
    Affirmed.

      L. E. Walther and B. E. Charles for appellant.
    (1) The taking of the bond is a requirement of the law. Charter of St. Louis, art. 6, sec. 27; 2 E. S'. 1899, p. 2514, and see. 6761. And the purpose of the requirement is to insure to the public the performance of the work contracted for. (2) • Where the condition is for faithful performance, the purpose of such a condition is “to secure the performance of the work in a satisfactory manner.” ' 1 Abbott on Mun. Corp., p. 665; Ft. Madison v. Moore, 109 la. 476. To the same general effect see the language used in Bank v. Woesten, 147 Mo. 479. (3) The theory of the court below was that as the contract was not made for the benefit of the property-owners in the sewer district, the plaintiff could not recover as trustee for them; and also that because it did not appear that plaintiff sued as trustee for them, he was not entitled to recover as trustee for them. That this was the theory is shown by the only declarations of law given by him; and this directly in the teeth of the fact that the petition was a straight suit on a bond in the name of the city of St. Louis, without any claim or demand whatever for a recovery as trustee for the property-owners. In the Wright Contracting Co. cases (202 Mo. 451; 210 Mo. 491) the question decided was as to parties. No question of parties arises in this case. (4) The city sues as the obligee in the bond. It sues for the public, whom it represents. St. Louis v. Wright, 202 Mo. 451. (a.) It is immaterial how payment is to be made for the work called for in the contract, whether by taxing the property of the whole city, or only that portion of it within a designated taxing district. St. Louis v.. Wright, 202 Mo. 463. (b.) In executing a bond running to the city for work which is done in the interest of the public, the defendants expressly recognize the city as acting in its own behalf for the public. It was because it was not so acting in the first Wright case that the decision there was against the city (202 Mo. 471). (5) Bonds of this character have always been conditioned for the faithful performance of the contract. It is only in late years that they have also been conditioned for the payment of laborers and material-men. This new condition does not weaken the prior condition. Even if the second condition had been void the first would have remained intact. State v. Babb, 39 Mo. App. 543; State v. Lewis, 61 Mo. App>. 633; Allen v. Brewing Co., 196 Mo. 435; State v. Crowley, 60 Me. 107; State v. Edgerton, 12 B. I. 104; State v. Adams, 3 Head (Tenn.) 259. A fortiori, when the courts have held the new condition to be valid. (6) What disposition the plaintiff might make of the amount to be recovered is no concern of the defendants or either of them. Green County v. Thomas, 211 U. S. 598.

      Kortjohn & Kortjohn for respondent Anderson; John M. Wood for respondent Fidelity and Guaranty Company.
    (1) The cause having been tried by both parties and submitted to the court upon the theory that plaintiff was suing to recover damages as trustee for the lotowners, who had paid the special taxbills, this court will not try the cause upon the theory that plaintiff is suing to recover damages in its corporate capacity. St. Louis v. Wright, 210 Mo. 491; Meyer Bros, v. Bybee, 179 Mo. 354; Dice v. Hamburg, 178 Mo. 81; Donnell v. B. & L. Assn., 175 Mo. 250 ; Black v. Railroad, 172 Mo. 177; B. & L. Assn. v. Obert, 169 Mo. 507; Minton v. Steele, 125 Mo. 181; Mitchell v. Railroad, 125 Mo. App'. 1; Tomlinson v. Ellison, 104 Mo. 105; Teherton v. Railroad, 98 Mo. 85 ; Whitmore v. Supreme Lodge, 100 Mo. 47. (2) Plaintiff cannot maintain this action as trustee for the lotowners of the sewer district, who paid the special taxbills for the construction of the district sewer. St. Louis v. Wright, 202 Mo. 451; St. Louis v. Wright, 210 Mo. 491. (3) There being no evidence to show that the plaintiff in its corporate capacity had been damaged by the breach of the contract on the part of Anderson Bros., it cannot in that capacity recover in this action.
   YALLIANT, J.

— This is a suit on a bond, in the penalty of $10,000, given to secure the faithful performance of a contract whereby the defendants William M. and Andrew Anderson contracted with the city to construct a certain sewer in accordance with certain specifications, and in which the defendant the United States Fidelity & Guaranty Company was surety for the contractors. The contract was that the Andersons were to construct the sewer for prices that made the total sum of $96,620.07; but after entering into the contract and giving the bond, they abandoned it, and the city was. compelled to let the contract to another party, Hill and Abbot, which it did, at prices that made the total amount $108,438.75, being $11,-818.68 more than the amount for which the Andersons agreed to do the work. The work, according to each contract, was to be paid for in special taxbills against the lots of land in that sewer district. The work was done under the Hill-and-Abbot contract, and special taxbills were duly issued in payment for the same. The result of the failure of the Andersons to perform their contract was that the property in the district was taxed $11,818.68 more than it would have been if they had performed it.

The conditions of the bond were that if the Andersons should faithfully perform their contract according to its terms, and pay to the proper parties all amounts for labor and material employed and used in the performance of the contract, the obligation was to become void; otherwise to remain in full force.

The petition states that because of the failure of the Andersons to perform their contract the city was compelled to pay Hill and Abbot $108,438.75 instead of $96,620.07, the price under the Anderson contract, therefore the city has suffered damage to the amount of $11,818.68, which is in excess of the penalty of the bond, $10,000, for which the city prays judgment.

At the trial the death of ¥m. M. Anderson was suggested and the plaintiff dismissed as to him; the trial went on as to Andrew Anderson and the surety company and resulted in a judgment for the defendants, from which the plaintiff appealed.

Although the petition states that the city was compelled to pay Hill and Abbot the amount named and that thereby it was damaged in the sum of the excess over the Anderson contract, yet that was not the literal fact, nor was it intended to be so understood, because the petition on its face shows that the work was paid for in special taxbills.

This court has recently passed judgment on bonds of this kind, and has held that under facts like those above stated the city was not entitled to recover the excess it had been compelled to pay in special taxbills. [St. Louis v. Wright Contracting Co., 202 Mo. 451; St. Louis v. Wright Contracting Co., 210 Mo. 491.] In both those suits the city in its petition assumed to sue as trustee for the property-owners whose property had been burdened with the excess in special taxbills, but the court held that the city was not such trustee under the terms of the bond. In the case at bar the city in its petition does not style itself trustee, but seeks a judgment in its own name for the excess of the cost. Counsel for the city seek to distinguish this case from those above mentioned, by the fact that here the city does not, as it did in those cases, call itself a trustee. It makes no difference what name the city takes or what character it assumes, if it recovers it must recover on the facts of the case; if those facts constitute it a trustee then it is such, otherwise not. If under the facts of this case the Andersons became liable to the property-owners who had to pay the excess of tax caused by their failure, and if the conditions of this bond covered that liability, and if under those facts and those conditions the law would create or imply a trusteeship in the city for the use of those property-owners, then the city would be such whether called by that name in the bond or not. This court held in the Wright cases that those facts and conditions did not make the city a trustee for the property-owners, therefore the city could not recover for their loss or injury. There is no difference in principle between this case and the Wright cases.

This loss in this case fell not on the city, it was not paid out of the city treasury, nor was the city liable for the excess; the burden fell alone on the property-owners. The only theory on which the city could recover for the loss or injury that resulted to the property-owners, for the failure of the Andersons, would be that it was a trustee for their use, but such is not the fact in this case. The city cannot, in its own name and for its own benefit, recover for the loss sustained by the property-owners, and the facts not constituting it a trustee for their benefit it cannot recover for them.

It is argued that the condition of the bond calls for a faithful performance of the contract, and therefore it covers all loss resulting from failure to perform, and that is so. Under the facts of this case there has been a breach of the bond and the obligors are liable for whatever damage has resulted from the breach, but their liability to the city is for the damage the city has sustained, not that sustained by some one else. If the city had, in this instance, sued for damages it had sustained, it would on proof have been entitled to recover nominal damages without proof of specific loss, though of that we say nothing, but since the city has seen fit to sue only for the loss that resulted to the property-owners, it is not entitled to recover at all.

The judgment is affirmed.

All concur.


text:
    THE STATE ex rel. MINNESOTA MUTUAL LIFE INSURANCE COMPANY v. CHARLES A. DENTON, Judge, and HERMAN P. FARIS.
    In Banc,
    June 21, 1910.
    1. JURISDICTION: Accounting: Prohibition. It is within the scope of equity jurisdiction to cause an accounting to he made, under some circumstances, and to render judgment for the balance ascertained to he due. But the money judgment is to follow the accounting, and if the conditions are such as to put the accounting beyond the reach of the court, it has no jurisdiction to render a money judgment. If the accounting that must he had before the balance can be ascertained is of a character which the court had no power to make, and would involve destruction of rights which could not be restored, an appeal would he of little, if any, avail.
    2. -: -: -: Visitation: Foreign Insurance Company. If before it can be determined what balance, if any, is due plaintiff from a foreign insurance company, to which he paid premiums while it did business on the assessment plan and also since it became an old-line company, and which premiums he claims the company has applied to the payment of its old-line level premium policies and therefore misappropriated, there must be a complete visitation of the corporation, a thorough inquiry into all its affairs, and an ascertainment not only of the condition of the account with plaintiff, but of the account of all its members, who have or have ever had policies on the assessment plan, no matter how numerous they may be or through how many States they may be scattered, a court of equity in this State has no jurisdiction, at the suit of a policy-holder, to take the account. A court of equity having full jurisdiction of the corporation might take the account, but the jurisdiction of a court of equity of this State over a foreign corporation licensed to do business here is limited and qualified.
    3. -: -: -: -: Fraud. A demurrer does not admit an act characterized as fraudulent to he fraudulent. It simply admits the act. But aside from that, even though the act constitute fraud, it does not confer on a court of this State jurisdiction, in the exercise of its visitorial powers, authority to make a full examination into all the affairs of a foreign insurance company in order that it may enforce an accounting between it and individual policyholders.

      4. -: -: Bill of Discovery. A hill of discovery cannot confer jurisdiction on a court, where the discovery asked is only in aid of an accounting, and the court has no jurisdiction either to take or compel an accounting.
    5. -: -: Receiver: Foreign Insurance Company: Misappropriation. A request hy a policy-holder who holds three assessment policies of $2000 each in a foreign insurance company, none of which has matured and on which nothing is now due, for the appointment of a receiver to go to the foreign State and take possession of a guarantee fund of $600,000 which he claims is being misappropriated to the payment of old-line policies which the company is now issuing, and to preserve it for the claims of himself and of all others who will join him in the suit, cannot he entertained or granted hy a court of equity of this State, because the court cannot confer on a receiver visitorial powers to be exercised outside of this State, and no such receiver would or ought to he recognized at the home of the corporation.
    Prohibition.
    Writ awarded.
    ■ How, Butter & Mitchell and Rosenberger, Taylor S Reed for relator.
    The courts of one State will not exercise visitorial power over the internal management and control of a foreign corporation in a snit hy a member thereof who bases his rights upon his membership. 19 Cyc. 1236; Sidway v. Missouri Co., 101 Fed. 481; 13 Am. and Eng. Ency. Law, 849; Clark v. Association, 43 L. R. A. (Colo.) 390; Condon v. Association, 44 L. R. A. (Md.) 149; Taylor v. Association, 45 L. R. A. (Va.) 621; Howard v.. Association, 45 L. B>. A. (N. C.) 853; 14 Cyc. 308. Prohibition is the proper remedy under the circumstances disclosed by the record. State ex rel. v. Reynolds, 209 Mo. 177; Appo v. People, 20 N. T. 531; State ex rel. v. Williams, 221 Mo. 227; State ex rel. v. Elkins, 130 Mo. 105; State ex rel. v. Fort, 210 Mo. 525; State ex rel. v. Sale, 188 Mo. 497; State ex rel. v. Slover, 126 Mo. 655; State ex rel. y. Wood, 155 Mo. 425; Arnold v. Henley, 155' Mo. 49'; State ex rel. v. Withrow, 154 Mo. 397; State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Denton, 128 Mo. App. 314; State ex rel. v. Spencer, 166 Mo. 271; Carter v. Bolster, 122 Mo. App. 144; State- ex rel. v. Dillon, 96 Mo. 56; State ex rel. v. Dearing, 180 Mo. 69; State ex rel. v. Barnett, 111 Mo. App.- 558; Teasdale v. Jones, 40 Mo. App. 250; 1 L. R. A. (n. s.) 554, and note.

      J. II. Lucas and Fyke & Snider for respondents.
    (1) This court will issue its writ of prohibition only in ease the court below has no jurisdiction at all of the subject-matter of the litigation, or, having jurisdiction, has exceeded, or is threatening or about to exceed its jurisdiction. It is not a writ of right. State ex rel. v. Sale, 188 Mo. 496; State ex rel. v. Gates, 190 Mo. 540. It must clearly appear that the inferior tribunal is actually proceeding, or is about to proceed, in some matter over which it possesses no jurisdiction, and when such intention is not clearly shown the writ will be refused. 23 Am. and Eng. Ency. Law (2 Ed.), 206. It is fundamental that the writ of prohibition must not be permitted to assume the functions of appeal, writ of error, or certiorari. Wand v. Ryan, 166 Mo. 646.' (2) The circuit court is a court of general original jurisdiction, and as such has jurisdiction of all claims at law or in equity, except such as have been taken out of that jurisdiction by positive law. Strode v. Gilpin, 187 Mo. 391. If the complaint states a case belonging to a general class over which the authority of the court extends, there is jurisdiction, and the court has power to decide whether the pleading is good or bad. Winningham v. Trueblood, 149 Mo. 580; Railroad v. Lowder, 138 Mo. 536. In chancery it has been universally held that when the court obtained jurisdiction of a controversy, it would proceed to do complete justice therein though part of the remedy afforded might be of such a nature (for example the adjustment of damages) as ordinarily would require a hearing in a court of law. State ex rel. v. Rombauer, 105 Mo-. 108. By jurisdiction is meant, that the court has jurisdiction of causes of the general class to which the aetion belongs. Posthlewaite v. G-hiselin, 97 Mo. 424; Hagerman v. Sutton, 91 Mo. 531; Gates v. Lustin, 891 Mo. 13. The action is one of purely equitable cognizance; such actions are transitory in nature, and the process of the courts of equity therein operates in personam, and when such courts acquire jurisdiction of the person, they have jurisdiction of the subject-matter and may render a personal judgment. State ex rel. v. Zachritz, 166 Mo. 313; Olney v. Eaton, 66 Mo. 563; McNichol v. Mercantile Agency, 74 Mo. 475. The acts complained of affect plaintiff’s individual rights. Hie is not asking the court to exercise visitorial power over the corporation. He asks that his rights be protected. He does not ask for a receiver for defendant’s entire business. He asks that the particular fund which admittedly is being misappropriated be placed in the hands of a custodian to be disposed of according to his contract. He does not ask that defendant be enjoined from doing business at all. He asks that it be restrained from making excessive assessments and from declaring his policies forfeited for his failure to pay such excessive demands. He asks that defendant be required to disclose to him the amounts wrongfully extorted from him, knowledge of which is exclusively with defendant, and he asks that defendant be required to refund to him money which it has collected from him wrongfully and to which he is entitled. “Where the action proceeds in right of the individual shareholder who brings it, the relief will often take the form of restoring to them what they have lost.” 10 Cyc. 992. The distinction between the right of a shareholder to sue or defend for the corporation, and his right to sue for the redress of injuries which are personal to himself, whether committed by the corporation or through the malfeasance of its agents, is total and clear. 10 Cyc. 965-981. In granting injunctions the court operates in personam, and may exercise its jurisdiction quite independently of the locality of the act to be done. State ex rel. v. Dearing, 180 Mo. 63. Injunction will lie to prevent books of foreign corporations being removed. State ex rel. v. Dearing, 184 Mo. 647. Receiver appointed in foreign State recognized here. Neil v. Bank, 76 Mo. App. 34; Seymour v. Newman, 77 Mo. App. 578. If the circuit court should appoint a receiver for the fund referred to in the petition, and if 'such action should be erroneous, it could be corrected by appeal, or if the circumstances indicated that delay would be highly injurious, this court could then award its writ prohibiting the judge from enforcing the order appointing a receiver. State ex rel. v. Dearing, 184 Mo. 647. If the plaintiff knew the correct amount for which he should be assessed and which he should pay, knowledge of which is solely in the insurance company, he could tender to it that amount, and if it refused to receive it plaintiff could maintain an action as for breach of contract, to recover all moneys paid and such other damages as he might be entitled to recover. McKee v. Insurance Co., 28 Mo. 383; Smith v. Insurance Co., 64 Mo. 330; Suess v. Ins. Co., 64 Mo. App. 1; Slater v. Supreme Lodge, 76 Mo. App. 390; Dickey v. Insurance Co., 82 Mo. App. 376; Bestop v. Insurance Co., 85 Mo. App. 307.
   YALLIANT, J.

— Relator seeks a writ of prohibition to go against the judge of the circuit court of Henry county to prohibit him entertaining jurisdiction of a suit pending in that court wherein Herman P. Paris is plaintiff and this relator is defendant. The suit was begun by the filing of a petition in the name of the plaintiff for himself and all others similarly situated who might see fit to come in and share in the suit. The petition is in the nature of a bill in equity complaining of relator’s alleged mismanagement of its business as a life insurance company, seeking judicial investigation of its affairs and the appointment of a receiver to conduct its business. On return of the summons the insurance company filed a demurrer to the petition, assigning as one of the grounds therefor that the court had.no jurisdiction of the cause stated in the petition, which demurrer was considered by the court and overruled, whereupon the insurance company as relator filed this suit in this court. The question of the jurisdiction of the circuit court arises out of the statements in the petition which are substantially as follows:

The Minnesota Mutual Life Insurance Company is a corporation organized under the laws of Minnesota and domiciled at St. Paul in that State, engaged in the business of life insurance, extending into other states, Missouri among the others. The company was originally chartered to do the business of life insurance on the assessment plan, that is to say, on the death of one of its members an assessment was made on the surviving members and out of the proceeds of such assessment the insurance on the life of the deceased member was paid. On becoming a member every one paid into the treasury a sum equal in dollars to the number of years of his age, which went into what was called the guarantee fund to secure the payment of the assessments and to be used in ease of necessity in payment of death benefits. While the company was doing business on that plan the plaintiff became a member and took out three policies on his life for $2000 each, paid the fees and amount therefor at the time, and has ever since paid in due course all the assessments levied by the company. And so the company went on in its business for several years and accumulated in the guarantee fund $600,000. But afterwards in 1901 the company, whose original name wqs The Bankers Life Association of Minnesota, changed its name to the Minnesota Mutual Life Insurance Company of St. Paul, Minnesota, and changed its plan of doing business, ceased to issue policies on the assessment plan and conducted its business thereafter as an old-line life insurance company and issued policies only on a level premium plan. After such change the company endeavored to induce all its old members to surrender their policies and to take policies on the level premium plan, and did succeed in inducing many, how many plaintiff does not know but seeks a discovery thereof, to make such change. Still a considerable number of the assessment policy-holders, among them the plaintiff, have refused to go into the new scheme and have held on to their original policies and have continued to pay their assessments. But the ceasing to issue policies on the assessment plan and the inducing of a large number of holders of such policies to surrender theirs, has thrown a greater burden on those who have held their originals, in the way of increased assessments, that is' to say, not only has the number of members under the assessment plan not increased, but it has diminished, yet the company still levies assessments on the remaining original members not only to pay death benefits occurring in their number, butt to pay death benefits on the lives of those who sur-\ rendered their assessment policies ¿nd took out policies j on the level premium plan, although holders of the | latter kind were not assessed to pay the death benefits/ when holders of assessment policies died. It is charged in the petition that this action on the part of the insurance company was done for the fraudulent purpose of forcing the assessment policy-holders to lapse in their membership whereby the defendant would claim and keep the guarantee fund, whereas that fund could lawfully be used for no other purpose than paying or securing assessment plan policies, and in the original articles of association in force when plaintiff became a member it was expressly so stated and also that that provision should never be altered or amended without the written consent of every member of the association, which consent ha's not been given by a large number of members.

It is also charged that the company has failed to apply the guarantee fund to the payment of assessments occurring on the death of members holding assessment policies, and has fraudulently misappropriated and is continuing to misappropriate a large part of it and unless restrained will dissipate the whole fund. That by this unlawful conduct plaintiff has been compelled to pay increased and burdensome assessments. The prayer of the petition is that the defendant com- \ pany be required to disclose the amount of the guarantee fund at the date it ceased to do business on the assessment plan; the amount on hand now; the dispo- j sition it has made of that fund; how it is invested;/ how many members now living hold policies on thei assessment plan; their postoffice addresses; the aggre-l gate of the outstanding assessment plan policies; whatj amount of money has been received upon assessments;' collected from members since the change of name;! what part of such money has been paid on policies, on the old-line plan; to state an account with plaintiff! since he has been a member, showing how much money] collected from plaintiff has been appropriated to pay-: ment of death losses on old-line policies; that defend-! .ant be enjoined from appropriating any of the guarantee fund to payment of policies on the old-line plan, j &aA from making assessments to pay claims other than death losses on the assessment-plan policies; that a receiver be appointed to take charge of the guarantee fund and collect and receive all assessments hereafter made against assessment-plan members and see that, they are applied only to the payment of death losses on assessment policies; that defendants be adjudged to pay plaintiff and all other persons similarly situated who see fit to come in and participate in this litigation all sums collected heretofore and applied to the pay-, ment of death losses under policies on the level-premium plan, and for general relief.

The respondent’s return to the rule to show cause why a writ of prohibition should not issue admits the allegations of the petition of relator, but avers that the sole object of the petition in the case of Faris against the insurance company, as respondent construes it, is not to have the circuit court exercise a complete visitorial power over the business and affairs of the relator but on the contrary one of the purposes of the petition is to obtain a money judgment against relator on account of moneys received by it which it ought not to have received and ought not to retain, and that if respondent erred in overruling the demurrer or should hereafter err in any respect in the progress of that cause the relator has a complete remedy by appeal.

From this return it may be inferred that the learned judge in overruling the demurrer did not construe the petition as one aimed to bring about a visitation of the affairs of the relator, but only to obtain a money judgment for a balance found to be due plaintiff after such an accounting as a court of equity could cause to be made.

It is within the scope of equity jurisdiction to cause an accounting to be made under some circumstances and to render judgment for the balance ascertained. But the money judgment is to follow the accounting,] and if the conditions surrounding the case are such as j to put the accounting beyond the reach of the court: it has no jurisdiction to render a money judgment.,; Ordinarily an error committed in the rendering of a ■ money judgment may be corrected' on appeal, but if the accounting that must be had before the balance can be ascertained is of a character which the court has no power to make, and would involve- destruction of rights which could not he restored, an appeal would be of little if any avail. In this case before the balance, if any, that is due the plaintiff could be ascertained, there must be a complete visitation of the corporation, a thorough inquiring into all of its affairs and an ascertainment not only of the condition of the account of the corporation with this plaintiff, but of the ac-; counts of all its members who now have, or have ever ; had, policies on the assessment plan, no matter how numerous they may be, or through how many States > they may he scattered, because this is a mutual concern and the accounts of all are involved in the account ' of one. Such an accounting is not beyond the juris-i, diction of a court of equity that may have full jurisdiction of the corporation, but is beyond the jurisdic-J tion of a court of equity that has only the limited oh qualified jurisdiction over a foreign insurance corpora-; tion that is given by our laws to our courts. When license is granted a foreign insurance company to do business in this State one of the conditions on which the license is granted is that it name an agent on Whom service of process may be made, so that it may ■ be. called into court to answer a suit on a contract, and our courts have ample jurisdiction to compel performance of obligations by such companies. Nor are our citizens wholly without the right to have the internal affairs of such corporations examined and their methods of business and their ability to perform their obligations ascertained, and their abuses if any corrected, without going to another State for that purpose; but that power is lodged in the Superintendent of Insurance, who may, until he has been allowed to make the examination and is satisfied, refuse to grant a license, or, having granted, may for good cause revoke it. But beyond the power of the court to enforce the performance of a contract and beyond the power of the Superintendent of Insurance to correct the evil, if a citizen of this State wants further redress involving a judicial investigation into the affairs of the foreign corporation of which he is a member, he must go to a court in the state where the corporation is at home.

In the brief for relator we are referred to a decision of the Supreme Court of the United States holding that the transaction whereby this insurance company changed the character of its business from the assessment to the old-line plan was in conformity do a statute of Minnesota and was valid. [Wright v. Insurance Co., 193 U. S. 657.] But that question, there is such a question, is not in this case; we are now concerned only with the question of jurisdiction of our circuit courts over a cause like this.

In Condon v. Mutual Reserve Association, 89 Md. 99, the Supreme Court of Maryland considered a case very like this and held that the trial court had no '■jurisdiction. The Maryland court pointed out the dual capacity of a policy-holder in such a mutual company; he was an insured and, to a certain, extent, an insurer, a creditor and a member. The court said: “The mere fact that he is a member of the corporation does not preclude him from asserting against the corporation any right arising out of his contract; but the character of the remedy invoked may measure the limits of the jurisdiction of the tribunal appealed to, when the domicile of the corporation is considered. It is therefore entirely possible that a state of facts which would authorize a court, in the exercise of its visitorial power, to inquire into the validity of acts affecting the rights of a policy-holder, when done by a corporation located within the jurisdiction of the court, would, as respects a foreign corporation^ be wholly insufficient to confer upon the same court jurisdiction to act at all.” The complaint of the policy-holder in that case was very much like the complaint in the case at bar: it was charged that the assessments were illegal, excessive and fraudulent, and the prayer was • for an accounting, involving the same scope of inquiry as in this case and the appointment of a receiver, but the court said that because it was a New York corporation the complainant would have to take his complaint to a New York court. Respondent in his brief says that the petition charges fraud and that the demurrer admits it, but that is hardly so; the demurrer admits the fact pleaded, but not the characterization ' which is only a conclusion. ■ But even if the acts complained of were fraudulent they do not, in such case, affect the question of jurisdiction. We quote again from the Maryland court: “An act ; done with a fraudulent motive is, as an act, precisely! identical with the same act done without such a motive, ' in so far as it relates to this jurisdictional question; ■ because it is the quality or nature of the act, not the incentive that promoted it, or the effect that it produces, which determines whether it does pertain to the internal management of the corporation or not.”

That insurance company was assailed with a like suit in Virginia and also in North Carolina, and in both of those States it was held that the court had not jurisdiction. [Taylor v. Mutual Association, 97 Va. 60; Howard v. Mutual Association, 125 N. C. 49.]

A court of equity never does a vain act, it nevery decrees what it cannot compel to be performed. If this were a domestic corporation the court could decree such an accounting as prayed, appoint its commissioner to go to the office, of the corporation and overlook and examine all its books, appoint a receiver, if it-deemed proper, to take possession of all its assets and administer the same under the direction of the court pendente lite, and if the corporation or its officers should refuse to surrender its books or assets, there would be sufficient executive power forthcoming at the call of the court to enforce its decrees. But the commissioner or the receiver in such case is but the representative of the court; he is, while he keeps within Ms decree, pro hac vice the court; where he goes the court- goes and what he does the court does. Can the circrnt court in this case, in the person of its representative, go to Minnesota and take charge of the affairs of this corporation there? If the corporation shouM refuse to turn over its hooks to the commissioner or its money to the receiver what could the court do? A court has no right to put itself in a' position where its orders may be treated with contempt; the very fact that it could not force obedience sho*ws its lack of authority to render the judgment.

There are, according to the petition, a large num-' her of holders of policies like those held by plaintiff, scattered perhaps over many States, each of whom has as much right to bring a like suit in his State las the plaintiff has to bring this suit. Each of those-many policy-holders would have an interest in each of the many suits, because in a mutual concern the interest of one cannot be determined without determining the interest .of - all, or at least the basis on which the interest of all-must be calculated. It would be a strange system of law that would involve a concern in/ such confusion. If such were the law no insurance company would venture to do business outside its own State.

It would be impossible for the circuit court to render an intelligent judgment for the money which the plaintiff says he has been unlawfully compelled to pay in excess of legitimate assessments, without entering into the elaborate accounting above indicated, and since the court has no jurisdiction to make such an accounting it has no jurisdiction to render such a money judgment. Nor can the jurisdiction be sustained on the ground that the petition is in the nature of a bill for discovery, because the discovery asked is only in aid of the accounting; is in fact but a part of the accounting. “A bill for relief and discovery cannot be sustained solely for the sake of discovery; therefore where, in a hill for discovery and relief, the discovery sought is incidental to the relief sought, a demurrer Well taken to the relief holds good as to the discovery also.” [14 Cyc. 308,]

A receiver appointed by a court of competent jurisdiction in another State is recognized under certain conditions in this State. The law on this point is well stated in two cases cited in respondent’s brief, Weil v. Bank, 76 Mo. App. 34, opinion by Judge Ellison, jand Seymour v. Newman, 77 Mo. App. 578, opinion by Judge Bond. In each of those cases the corporation for which the receiver was appointed was domiciled in the jurisdiction of the court which made the appointment, presumably the bulk of the assets of the bank was in each case within that jurisdiction and a small asset was found here. A reading of those cases shows that the recognition of the foreign receiver is only a matter of comity and is not extended when the rights of a citizen would be injuriously affected. If a court in a foreign State should undertake to appoint a receiver for a Missouri corporation the bulk of whose assets were in this State, his authority would not be recognized here. In this case the plaintiff claims to hold three policies of $2000 each, not mature, nothing now due on them, yet he asks that to protect his interests a receiver be appointed to go to Minnesota and take possession of the $600,000 guarantee fund, to preserve it for the security of his claims and the like claims of all others who will join him in this suit. No such receiver would be or ought to be recognized at the home of the corporation.

The circuit court has no jurisdiction of the cause of action stated in the petition of Herman P. Faris v. The Minnesota Mutual Life Insurance Company, and no amendment of the petition could give the court jurisdiction of that cause; an amendment stating a cause of action within such jurisdiction would be an amendment stating a new or different cause of action; the demurrer should therefore have been sustained and the cause dismissed.

The writ of prohibition is awarded as prayed.

All concur, except Burgess, J., not sitting.