author: GRAVES, P. J.

text:
    JAMES H. YORE et al., Appellants, v. AUGUSTUS P. YORE.
    Division One,
    February 29, 1912.
    1. CONTRIBUTION: No Payment: Not Enforceable. The right of contribution is not complete and therefore not enforceable until the plaintiffs have paid the amount that their joint obligor should have paid. Even though all the obligors sustain such a relation to each other as would entitle some of them to compel contribution from the others in case they pay the debt or restore the fund, the right remains inchoate and not complete until payment or restoration is made.

      2. -: Compulsory Payment. Contribution rests upon compulsory payment, and the word compulsory, is used in the sense that there must be a legal obligation to pay. But no one who is not legally bound to' pay can by voluntary payment compel contribution.
    g. -: Several Right. The right of contribution is individual and personal, not joint. Each one paying is entitled to recover from the others jointly bound the amount he has paid in excess of his own proportionate part.
    4. -: -: Implied Contract. The right of contribution rests upon an implied contract to repay, which contract the law itself implies from the relationship of the parties, and that implied contract is several, not joint. 5. -: Advancements out of Estate: Life Tenants: Remaindermen: Misjoinder of Causes and Parties. A will gave the estate to four children for life, to go at their deaths to their children respectively, and if any should die without descendants then his share was to go to the children of the others, and one died without descendants and unmarried. The estate was placed in the hands of a trustee and large advancements were made to the four children or life tenants before partition, and ■ after partition and the sale of the property these were paid back to the trustee out of the proceeds, and two of the life tenants and their children sue the remaining life tenant to compel him to restore to' the corpus of the estate one-third of the advancements made to the deceased life tenant, alleging that they were paid to the trustee out of the distributive share of plaintiff remaindermen. Held, first, that there has been no payment; second, the two life tenants have no interest in the corpus of the estate, and are under no legal obligation to restore the amount advanced to their deceased brother, and any payment by them would be voluntary, and therefore they cannot maintain the suit; and, third, the plaintiffs allege a joint obligation of defendant to them, and the proof shows no such obligation, but shows only an inchoate several obligation.
    6. -: -: Former adjudication. Where the right of plaintiffs to compel contribution from defendant for advancements made by the trustee to the deceased life tenant was adjudicated by the judgment in the partition suit, that judgment became a complete bar to a further separate suit for contribution.

      7J. - — : -: -: Matters Adjudicated: How Shown: Pleadings as Evidence. Under a general denial to plaintiffs’ petition alleging that a judgment in partition showed payment and restoration to the corpus of the estate by them of advancements to a deceased life tenant and established their right to compel contribution from defendant, be bad tbe right to introduce tbe pleadings in that ease, as evidence, tending to show that in fact tbe judgment was not in fact a payment of tbe money so as to give the right of contribution.
    Appeal from St. Louis City Circuit Court. — Hon. G. H. Williams, Judge.
    Aefiemed.

      B. P. & C. B. Williams and F. M. Estes for appellants.
    (1) The matters and things set up in plaintiffs’ petition are not res adjudícala. McMahan v. Geiger, 73 Mo. 145; Comstock v. Keating, 115 Mo. App. 378;. State Bank v. Bartel, 114 Mo. 276 ; Koekch v. Mixer, 52 O. St. 207. (2) In an action by one obligor on a bond or other obligation against his co-obligor for contribution, parol evidence is admissible to show for what proportion of the liability each one is bound. Mechanics Bank v. Wright, 53 Mo. 153; 9 Cyc. 904; 7 Am. & Eng. Ency. Law, 339; Mansfield v. Edwards, 136 Mass. 75; Newcomb v. Scrogan, 147 Mass. 398. (3) Sureties may by special contract vary their liability implied from their relation to the original debt and such special contract or any facts affecting or negativing the equities between the parties may be proved by parol evidence. 7 Am. & Eng. Ency. Law, 339; Robertson v. Eathrage, 82 111. 511; Knopf v. Morrell, 111 Ind. 507; Whitehouse v. Hanson, 42 N. H. 19. (4) So far as the right to contribution is concerned, payment of the indebtedness of Charles J. Yore in the manner in which the same was paid by the decree of May 27,1902, was in legal effect the same as if the parties had paid the same in actual money. 6 Pomeroy’s Eq. Jurisprudence, sec. 917. (5) Bes adjudícala is an affirmative defense and must be pleaded in order to be available. Beattie Mfg. Co. v. Gerardi, 166 Mo. 142; Kelly v. Hurt, 61 Mo. 463.

      Barclay, Fauntleroy $ Cullen for respondent.
    (1) The petition does not allege that plaintiffs James H. Tore and Margaret Tore McCord have paid the indebtedness of Charles J. Tore; on the contrary the petition alleges that the children of these two plaintiffs have paid the debt. A surety cannot claim contribution until he has paid the debt. When a party not bound pays a debt he is a mere volunteer and cannot recover the mo.ney back, and the debt is discharged. Burkham v. Manewal, 195 Mo. 509. Hence there can be no claim on sureties for that debt. (2) The only agreement plaintiffs endeavored to prove was that Margaret Tore McCord, James H. Tore and defendant were sureties for Charles J. Tore’s indebtedness. The only proof touching payment of this sum is the final decree in the partition suit, where it is charged against the children of James H. Tore and Margaret Tore McCord. A surety cannot claim contribution for moneys not paid out. This evidence shows that some party other than the surety has paid the debt; in no event Gould the debt be collected from the sureties. (3) The partition suit proceedings conclusively establish that defendant did not assume any of Charles J. Tore’s indebtedness, but it was assumed by plaintiffs herein (except James H. Tore and Margaret Tore McCord). Bobb v. Graham, 89 Mo. 200. The liability of the signers of the mortgages for this indebtedness was one of the points litigated in the partition suit, as the court was asked to charge against those signing the mortgages the amounts advanced. The court acted on this prayer and charged these amounts to these parties; the decision is conclusive that the amounts are correctly charged. Spratt v. Early, 199 Mo. 501; Buchanan v. Smith, 75 Mo. 463; Garton v. Botts, 73 Mo. 274. Where the question of liability has been litigated, the judgment is conclusive in its findings and the issue cannot be reopened. Hoyt v. Greene, 33 Mo. App. 240; Harmon v. Auditor, 123 111. 122; Goldschmidt v. County, 37 Minn. 49. (4) Though parties may all he either plaintiffs or defendants a judgment fixing the liability inter sese is conclusive thereof, even if in subsequent suit where they are plaintiff and defendant. Wiggins v. St. Louis, 135 Mo. 569; Louis v. Township^ 109 U. S. 162; Eailroad v. Sargent, 72 N. H. 455; Baldwin v. Hanecy, 204 111. 287. (5) A former judgment need not be pleaded to make it an estoppel; when offered in evidence its force and conclusiveness are the same as when pleaded. McNair v. O’Fallon, 8 Mo. 205; Strong v. Insurance Co., 62 . Mo. 289; Garton v. Botts, 73 Mo. 274; Insurance Co. v. Smith, 117 Mo. 297. (6) And, under a general denial, a former judgment is admissible, and is conclusive of the rights of the parties. Garton v. Botts, 73 Mo. 274; George v. Gillespie, 1 Greene (la.), 421.
   GRAVES, P. J.

Action for contribution. Amount involved “the sum of $6112.29% with interest from May 27, 1902.” This suit was instituted in the circuit court of the city of St. Louis May 17, 1907, and upon trial in December, 1908, judgment was entered for defendant, from which plaintiffs have appealed.

For brevity of statement matters of pleading and evidence had best be commingled. From ,it all we gather these facts:

July 14, 1889, Patrick Tore departed this life in the city of St. Louis, leaving surviving him five children, viz.: James LI. Yore, Margaret Yore McCord, August P. Yore, Charles J. Yore and Sarah O. Walton. A son, William Yore, died prior to the father, leaving as his heirs three children. Charles J. Yore, one of the living children of Patrick Yore at the time of his death, departed this life in January, 1902, intestate, unmarried and without children. The plaintiffs in this suit are the said James H. Yore and Margaret Yore McCord, and their respective children. The defendant is the son August P. Yore, mentioned supra as one of the five children of Patrick Yore. It also appears that P'atrick left a widow, but her interest in his estate seems to have been fixed by an ante-nuptial contract, which is not questioned in the case at bar.

Patrick Yore was the owner of two valuable tracts of real estate in the city of St. Louis at the time of his death, which, however, do not appear to have been revenue producers. By his will the said Patrick made several minor bequests to be paid out of the personal estate or the rents of the real property. The children of the deceased son, William, were debarred from participating in the estate because, as averred in the will, said William had been liberally provided for in his lifetime. The daughter, Sarah O. Walton* was to receive sixty dollars per month as long as she lived. The will then further provided:

“Seventh: I direct that the taxes, insurance and repairs on my property shall be paid and made, that my property shall be kept well and fully insured and in good order and repair, and that in case of loss by fire the insurance money shall be expended and employed in repairing and rebuilding the property so damaged or destroyed.
“Eighth: The balance of the net income of my whole estate I will and bequeath to my sons, James, Augustus' and Charles, and to my daughter Maggie McCord, payable to them during their lives in equal parts of one-fourth each.
“Ninth: Upon the death of the said James, Augustus and Charles Yore or the said Maggie McCord, as the same shall respectively occur, his or their respective shares of the income of my estate so bequeathed by the eighth item of this will, shall be and become the property of and go to and be divided among the children or their descendants of such decedent. And in the event of the non-existence of such descendants, then to the right heirs of said James, Augustus and Charles Yore or Maggie McCord, respectively.
“Tenth: My real estate shall not be sold or partitioned bnt shall be kept together until the deaths of the said James, Augustus and Charles Yore and Maggie McCord, when I will, devise and bequeath all my property then remaining, real, personal o,r mixed and wherever situated, to the children and descendants or right heirs respectively of the said James, Augustus and Charles Yo,re and Maggie McCord, said children and descendants or heirs to take per stirpes and not per capita.
“Twelfth: I nominate, constitute and appoint my son James Yore, but in case he fails to qualify or after his death, my son Augustus Yore, the executor of my will, and request that neither of them be required to give bond in order to qualify as such.”

At the institution of this suit the widow, Sophia A. Papin Yore, was dead, and her certain life interest in a part of the real estate created by the ante-nuptial agreement was at an end. The estate had been finally settled in the probate court. The circuit court of the city of St. Louis had appointed the St. Louis Union Trust Company of that city as trustee under- the will aforesaid. In the preservation of the estate and by way of advancements it had advanced a considerable sum of money. Tiring of the trust and desiring settlement, the parties sought another trustee. The Mississippi Valley Trust Company was importuned. In April, 1895, the above named life tenants, and such of their children as were of age, executed to the Mississippi Valley Trust Company, a trust deed covering the property of the trust estate, in which provision is made for the payment of the sum due -to the Union Trust Company, and also for certain other advancements to the life tenants. Among other things this trust deed recited: “As between said first parties to and with said second party joint and several obligation, and due to said second party from each and every one of said first parties single and alone, as well as from the whole of them collectively.”

In August, 1896, Clement Tore, a child of the said James PI. Tore, became of age, and a second trust deed, signed by those signing the first and the said Clement was made. This referred to and incorporated therein the matters and things mentioned in the first trust deed, and in addition secured further advances.

In June, 1900-, a third trust deed was made, being signed by the life tenants and all their children then of age, which secured all the matters and things mentioned in both the first and second trust deed aforesaid, and provided for further advances from the Mississippi Valley Trust Company.

Finding themselves embarrassed with the constantly accumulating advancements, the parties instituted a partition suit, asking for a sale of the property. Pending this action the said Charles J. Tore •died, and an amended petition was filed stating the facts. This case went to judgment and such judgment is pleaded in this action.

By that decree it was found that advancements had been made to the life tenants as follows: James H. Tore, $27,257.06; Margaret L. McCord, $25,128.00'; August P. Tore, $19,284.00'; Charles J. Tore, $18,351.-88; to the remainderman Clement Tore, son of James H. Tore, the sum of $960.41.

This suit involves the one-third of the $18,351.88 advanced to Charles J. Tore, who died pending the suit, without repaying to the corpus of the estate such advancement made to him, which was secured by the trust deeds aforesaid.

In the partition suit the property was sold. In proper action the Colonial Trust Company was substituted as trustee, and the debt of the Mississippi Valley Trust Company paid out of the proceeds of the sale. This sum was $97,344.32. Plaintiffs’ petition after detailing the fact as to the will, the administration of the estate, the giving’ of the several trust deeds, the partition proceeding and its decree, the substitution of the Colonial Trust Company as trustee, then thus proceeds:

“Plaintiff further avers that the said sum advanced to the said Charles J. Yore has been paid as hereinbefore shown, and under said decree of May 27, 1902, said sum was paid, one-half by the children of Margaret Yore McCord, by deducting such amount from the distributive share of such children under the said will, and the other half by the children of James H. Yore, by deducting such amount from the distributive share of such children of James H. Yore under said will.
“Plaintiffs further allege that the said Augustus P. Yore in and by the signing of said mortgages bound not only the life interest that he then owned in said estate, but expressly transferred and conveyed any additional or further interest or estate that he might subsequently acquire in the said property; that upon the death of said Charles J. Yore the said Augustus P. Yore acquired and became vested with an additional one-fifth of one-fourth interest in and to the income- and the corpus of said estate, and plaintiffs aver that* such additi onal interest acquired by the said Augustus-P. Yore became charged with, and the said Augustus P. Yore became jointly liable with, the other two surviving life tenants who signed said mortgages for one-third of the said amount advanced to the said Charles J. Yore, deceased.
“Plaintiffs further aver that they have repeatedly requested and demanded of the said, defendant, Augustus P. Yore, that he pay to them his one-third part of the said sum of $18,351.88, the amount advanced to said Charles J. Yore, and which said plaintiffs have paid as aforesaid, but the said defendant has failed and refused to pay said sum of money or any part thereof-.
“Wherefore, plaintiffs sue and demand judgment against said defendant for the sum of $6,112.29%, with interest from May 27th, 1902.”

The answer was a general denial. It should also be noted that the petition also charges that there was an agreement before the trust deeds were given, to the effect that in the event one of the life tenants should die, the surviving life tenants should assume and pay the advancements made to the deceased life tenants. It should be further noted that the decree in partition undertakes to restore the corpus of the estate by impounding in the hands of the trustee the income going to the surviving life tenants.

Plaintiffs claim that by reason of the trust deeds and this alleged agreement the defendant should have paid one-third of the money advanced to Charles J. Yore. They further claim that, by the terms of the partition decree, this third part, has been paid by the children of James H. Yore and Margaret Yore McCord. Hence this action for contribution. Other facts may become material in the discussion of the points made, but for the present this sufficiently states the case.

I. The gist of plaintiffs’ petition is that upon the death of Charles J. Yore, the three remaining life tenants became bound for the money advanced to him, and not repaid by him to the corpus of the estate at the time of his death. For the sake of the argument and a determination of this case, it might be admitted that the facts so show. Admitting* therefore that the three surviving life tenants were jointly obligated to pay the amount advanced to Charles J. Yore, how stands the case? The proof fails to show that the two life tenants (James H. Yore and Margaret Yore McCord) who are plaintiffs herein, have ever paid any portion of said debt.

In 3 Cyc., p. 798, the rule is thus stated: “The right to contribution is inchoate from the date of the creation of the relation between the parties, but is not complete, so as to be enforceable, until there has been an actual payment in whole or in part of the common obligation or until something is done equivalent to a discharge thereof.”

This right of contribution is one which belongs to one of two o.r more joint obligors. It is a right which grows out of the relation of the parties to the contract. It is a right given to protect one of the joint obligors in the event he has been compelled to discharge the whole debt, or more than his proportionate part of the whole debt.

A further rule is thus stated in 9 Cyc., pp. 798-9: “To entitle one to contribution the payment must be compulsory in the sense that the party paying was under legal obligation to pay, but' according to the weight of authority it is not necessary to make the payment involuntary that suit should have been instituted against the person seeking contribution or that a levy should have been made on his goods. It is necessary that the payment should have been made at the request of the co-obligor, but it may even be made against his protest, and a payment is not voluntary because it was made before the obligation matured. In the absence of agreement a premature payment does not, however, hasten the right, and contribution cannot be enforced until the debt falls due. It is not necessary that the entire debt should have been paid, but the payment must have been for more than the share of the person seeking contribution.”

From this it must be gathered that the payment must be made by one obligated to pay the whole as between himself and the payee, but only bound to pay a proportionate part as between himself and his co-obligors. From this it is clear that James H. Yore and Margaret Yore McCord were not entitled to recover, because they have made no payments. Had they made payment, and the right of contribution in fact existed, they could assign, that right, and the assignor could sue, but no one who is not bound to pay, can voluntarily pay, and thus give either Mr. Yore or Mrs. McCord a right of action. Nor would a right of contribution inure to the voluntary payor. The doctrine of contribution rests -upon compulsory payment. We use the word compulsory in the sense that there must be a legal obligation to pay. For the mere volunteer there is no legal obligation to pay and his payment is not compulsory in that legal sense in which the term is used in connection with the doctrine of contribution. Under no theory of the petition can James H. Yore and Margaret Yore McCord recover? If not, how stand the other plaintiffs? Where plaintiffs sue jointly, as in this case, they must all show a right to recover, or none can recover. ■ They must show an obligation upon the part of the defendant to them jointly and not to them individually, and this because they have pleaded an obligation to them jointly. Proof of an obligation to only one or more (but less than all), would be proof at variance with the obligation pleaded in the petition. If a plaintiff sue two or more defendants he may have a judgment against one or more of them according to the liability shown. But here the plaintiffs aver that they all have a joint interest in the subject-matter of tbe suit and aver that they are all entitled to recover. They plead a joint right of recovery against the one defendant. They aver that the obligation of defendant is one to them jointly and not severally. In such case if the suit fails as to one or more of the plaintiffs it must fail as to all. By this we mean that if the proof shows that the obligation from the defendant to the plaintiffs is not one to them jointly, but severally, then -there is a failure of proof under the petition. They -have pleaded one kind of an obligation and proven an - (.other. So in the case at bar we find that the petition -avers that the obligation of defendant to pay is one to all the plaintiffs jointly. The proof is that there is and could be no such obligation. Tbe proof shows that at least two of the plaintiffs have no right of contribution at all. The proof therefore fails to sustain a petition which charges an obligation from defendant to all the plaintiffs jointly.

But .further the right of contribution is an individual and personal .right. It grows out of what the individual himself does. It is a right which accrues to one or more individuals (out of the whole number bound) who pay the debt for which they are all bound. Each one paying is entitled to recover from the others the amount which he has paid in excess of his own proportionate part. His right to recover is dependent upon the excess which he himself pays. The recovery is due to him and to no one else. In other words, the act is individual and the right of contribution is individual. The right of contribution rests upon an implied contract to repay, which contract the law itself implies from the relationship of the parties. Such implied contract is several and not joint: Of course the act of a co-partnership would in this sense be individual. But this is by the way-side and only illustrative. It is sufficient for this case to say that plaintiffs have pleaded an obligation from defendant to them jointly, and the proof fails to show such an obligation.

Had they been suing upon a note and charged that defendant by his certain note promised to pay plaintiffs $6000, and in trying to prove their case, they only offered a note of such sum from defendant to two of the plaintiffs, the case would fall for want of proof. So in this case. A joint obligation is pleaded, but none such shown.

II. But there is a further barrier to the right of recovery in this case. The plaintiffs' in their petition plead the judgment in the partition suit. All the parties in this case were parties to that case. That judgment was unappealed from by either these plaintiffs or any of the parties thereto. As to all it is a final adjudication. Plaintiffs say that through this judgment the children of James H. Tore and Margaret Tore McCord have paid the sum for which all ‘the plaintiffs now seek contribution. To show such alleged payment they introduce in evidence this decree. To show that such judgment was not in law or in fact a payment of the sum sought to be recovered in tin's case, but a final adjudication of this and all other contentions of the parties, the defendants introduced the pleadings in the case, so that they might be considered in connection with the judgment offered by plaintiffs. The plaintiffs were pleading and relying upon this judgment. Even under a general denial the defendants had the right to show from all the facts that the judgment was not in fact a payment of the money so as to give a right of contribution. It is not in the nature of res adjudicata, and hence the discussion of the necessity to plead res adjudicata is not really in the case. It is in the nature of evidence rebutting the claim of payment. The judgment and pleadings considered, it is apparent that the decree in partition was an adjudication of all the rights of the parties, and the evidence introduced (the judgment and pleadings) show that fact rather than the alleged fact of payment by and through the judgment. If the judgment (enlightened by the issues made as shown by the pleadings) fails to show payment, then of course the case fails as to all the plaintiffs.

When read in connection with the issues made by the pleadings the decree shows a final determination of all the rights of the parties thereto, including the money involved in this action. If that decree was wrong it should have been appealed from by the parties aggrieved. As it stands it shows a complete adjudication of all interests between the parties, and cannot be made the basis of an alleged payment so as' to authorize contribution.

These views preclude the discussion of several other points urged. It follows that the judgment should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: BOND, C.

license: Public Domain

text:
    HOOKER STEAM PUMP COMPANY, Plaintiff, Appellant, v. JOHN B. BUSS, Defendant, Appellant.
    Division One,
    February 29, 1912.
    1. CONTRACTS: Construction: Option. The plaintiff and the defendant contracted for the making and selling of pumps, and their contract placed certain drawings, etc., property of the plaintiff, in the custody of the defendant at an appraised value. Clause 17 of the contract provided that upon its discontinuance there should be a reappraisement of the plaintiff’s drawings, etc., the difference to be paid to the proper party, and reimbursement by the plaintiff to defendant for all machinery added for the purpose of manufacturing the pumps, as well as for all stock of pumps on hand. A proviso followed to the effect that if the plaintiff refused to take the property and stock off defendant’s hands, the latter should have the right to keep plaintiff’s property on specified terms. If, however, the plaintiff should fulfill the provisions as to purchase, the defendant agreed to cease manufacturing pumps. The contract has been ended and the rights of the parties under clause 17 are to be adjudicated. Held, that this contract, without recourse to extraneous evidence, afforded each party an option to buy or not to buy the 'property of the other.
    2. -: -: -: Exercise by Acts of One Party. And where the defendant did in fact keep the drawings, etc., lent him by the plaintiff and carry on the business after the termination of the contract, without paying either the royalty or the cash price specified therein, he is liable to the plaintiff for the agreed value of the property lent him.
    3. - — : -: -: -: Counterclaim. The defendant cannot recover upon a counterclaim against the plaintiff for bis (defendant’s) added machinery and Ms left over stock. The plaintiff cannot, under the terms of the contract, be forced in any way to buy this property.
    Appeal from St. Louis City Circuit Court. — lion. William M. Kinsey, Judge.
    Reversed and remanded.

      Christy M. Farrar, R. L. McLaran and Block & Sullivan for plaintiff appellant.
    (1) Where, by the terms of a contract, one of the contracting* parties is obligated to do one of two things in the alternative, he has the option to do either at his election; but if he fails or refuses to do either, then the election passes to the other .party to the contract. Coke, Litt. 145a; M’Nitt v. Clark, 7 Johns. (N. T.) 466; Collins v. Whigham, 58 Ala. 438; Muller v. Pels, 94 111. App. 354; Kramer v. Ewing, 61 Pac. (Ok.) 1065; Phillips v. Cornelius, 28 So. (Miss.) 871; 1 Page on Contracts (Ed. 19051), sec. 1391; Bishop on Contracts (2 Ed.), secs. 785, 786-, 1435. (2) The agreement to purchase was entire, and when the defendant had used or disposed of any portion of the property, the obligation to purchase was ended. Dersch v. Sander, 37 Mo. 106; McMannus v. Gregory, 94 Mo. 370; Hill v. Mining Co., 119 Mo. 27; Construction Co. v. Iron Works, 169 Mo. 157; Barrie v. Seidel, 30i Mo. App. 563’; Smith v. Coal Co., 36 Mo. App. 583; Morrison v. Leiser, 73 Mo. App. 98; Equitable, etc., Co. v. Engelke, 68 N. J. L, 570; Inland v. Cotton Mills, 116 Tenn. 147; Lumber Co. v. Ward, 36 W. Va. 581; Newell v. Canning Co., 119 Wis. 641. (3) The judgment on the plaintiff’s cause of action is independent of the judgment on the counterclaim, and the reversal of the latter should not disturb the former. Gamble v. Gibson, 83' Mo. 296; Mooney v. Kennett, 19 Mo. 554; Needles v. Burk, 96 Mo. 476; Donnell v. Wright, 199 Mo. 312; Hunt v. Railroad, 89 Mo. 609; Sparks v. Transfer Co., 104 Mo. 548; Reichenbach v. Benefit Assn.. 112 Mo. 23; Balch v. Myers, 65 Mo. App. 422; Hartman v. Lumber Co., 96 Mo. App. 294; Fitzpatrick v. Dooly, 112 Mo. App. 176; Blackmer, etc., Oo. v. Railroad, 137 Mo. App. 479.-

      Kinealy & Kinealy for defendant appellant.
    (1) There is no evidence that defendant, Mr. Buss, retained the patterns or drawings of plaintiff as his own property or accepted the option set forth in the second sentence of clause 17 of the contract, but there is ample evidence that he refused to do so. (2) The obligation of plaintiff to defendant on the termination of the contract is an independent obligation, and under it defendant was entitled to a recovery for every item included in the last sentence in clause 17, wholly independent of any other stipulation in the contract. (3) The third sentence of clause 17 of the contract was merely a provision for an option by which Mr. Buss might retain the old patterns as his own property if he thought fit to do so, but he never did so and hence no obligation of Mr. Buss under that sentence ever existed. (4) A mere retention or use of the property of another does not pass the title to the wrongdoer against his repudiation of ownership by him; that only happens when judgment is obtained for the conversion and paid. Mitchell v. Shaw, 53 Mo. App. 652, 28 Am. & Eng. Ency. Law (2 Ed.) 738. (5) Lastly, those patterns, if used at all, by Mr. Buss, after the contract expired, were used in getting out orders for pumps or repairs under an arrangement entered into by defendant with plaintiff at the solicitation of plaintiff, and plaintiff is estopped to claim that such use by defendant of those patterns for such a purpose constitutes a detention, of them by him as his own property. (6) The evidence shows that Mr. Buss never took or retained any of those patterns as his own property and of course unless it was shown that he did so retain them there could be no claim by plaintiff to payment for the Old patterns, under the third sentence of clause 17 of the contract.
   BOND, C.

Plaintiff, a manufacturer and seller of pumps, and defendant, a capitalist and owner of a plant for making and selling machinery and tools, entered into a contract on February 8, 1901, providing for the making and selling of the respective articles which each of them had previously sold. This contract set forth fully the rights and duties thereunder of the two parties, and, among other things, stipulated that certain articles belonging to plaintiff and defined as “patterns, core boxes, etc., and drawings” should be appraised and put in the custody of defendant for the purposes of the contract, but the title to remain in plaintiff. The contract then is, to-wit:

“15. This agreement shall be in force for four years from this date.
“16. Six months prior to the expiration of the term of this agreement, or of future renewals, if either party does not wish to. continue or renew this agreement, said party shall notify the other in writing of its decision; otherwise said agreement shall r,emain in force for an additional four years under the same condition as existed before.
“17. In event of the failure to renew or continue this agreement, an appraisement shall be made of the patterns, core boxes and drawings and if that appraisement is greater than the appraisement made under the said article 12 the difference shall be paid to the party of the second part; but if less, the difference shall be paid to the party of the first part. The party of the first part shall also reimburse the party of the second part for all machinery attachments, jigs, templets, etc. which the latter shall have added to its plant for the purpose of manufacturing the Hooker steam pumps, at the original cost price, reasonable allowance for wear and tear excepted, and also for all pump material parts and whole pumps in stock at cost price. If in event of such discontinuance of, or failure to renew or continue this agreement said party of the first part refuses to take said patterns, machinery and stock off the hands of the party of the second part, the latter shall have the right to retain all the patterns and drawings of said first party as its own property, and to continue the manufacture of the Hooker steam pumps for its sole account, either by paying the party of the first part a royalty of three per cent on its sales for four years, or the value of said patterns and drawings originally belonging to the Hooker Steam Pump Co., at which they were appraised when turned over to tbe party of the second part. If this agreement is not renewed or continued under the conditions aforesaid and the party of the first part thereupon fulfills the provisions as to the purchase of patterns, machinery and stock, tbe party of tbe second part agrees thereafter not to continue the manufacture of steam pumps, except that if the continuance or renewal of this agreement be not desired by party of the first part, the party of the second part may continue under its own name the business, theretofore done by it under this agreement.”

The following letters were exchanged between the parties.

Reliance Machine and Tool Works.

St. Louis, Mo., Aug. 4, 1904.

Mr. Wm. C. Farrar, Prest.,

Hooker Steam Pump Co.

Dear Sir:

I hereby notify you that the agreement entered into between your company and myself relating to the manufacture of Hooker steam pumps, on the 8th day of February, 1901, for a term of four years, expires on the 8th day of February, 1905, and that I will not continue or renew it.

Yours respectfully,

J. B. Buss.

Jan. 27, 1905.

Hooker Steam Pump Co.,

101 N. Third St, City.

Gentlemen: The amount of machine tools, pumps, etc. which you would have to huy from us, according to contract, is $26,173.81, as specified below: Machine tools, $3290.35; Other Tools, $944.29; New Patterns, $2217.22; New Drawings $1500.00; Finished Pumps on hand, $8249.61; Finished ?ump Parts on hand, $5991.13; Partly finished Pump Parts, $1028.00; Raw material on hand, $2953.21; Total, $26,173.81.

Yours respectfully, ■

Reliance Machine & Tool Works.

The Hooker Steam Pump Co.,

Office 101 N. Third St.

St. Louis, Feb. 1, 1905.

Mr. J. B. Buss, Propr.,

Reliance Machine and Tool Works, St. Louis, Mo.

Dear Sir:

We find that we cannot take your stock of pumps, machinery, etc. off your hands at the expiration of our contract on Feb. 8, ’05. Are you willing to continue the contract as it stands for six months-in order to give us further time to relieve you of said stock? We ourselves desire to renew the contract for another four years and think so doing would prove advantageous both to you and ourselves. If however you are unwilling either to renew, or extend the contract for six months, you are as you know entitled to continue the 'manufacture of the pumps by paying us the inventoried value of our patterns or a three per cent royalty for four years. Will you kindly let us know what you will elect to do in this matter? We also ask, supposing you continue to build pumps, what discount you will make to us from present prices on pumps? We desire to be informed at once on these matters, as we are constantly called on for prices, and it is to our mutual interest to be settled in regard to the future. We were in hopes of arriving at an understanding of the future situation before this>but of course desired first to be informed as to the value you placed on the stock, etc. Hoping to hear from you in a day or two, we are,

Very truly yours,

Hooker Steam Pump Co.,

W. C. Farrar, Prest.

Jennings, Mo., Feb. 4, ’05.

The Hooker Steam Pump Co.,

Mr. Wm. C. Farrar, Prest.

Dear Sir:

Yours of the first inst. came duly to hand. Having been sick at home for a number of days, I regret I could not answer before this. I see from it that you cannot take the stock of pumps, machinery, etc. from off my hands at the expiration of our contract, and as I do not think you will succeed to do so within six months, I cannot entertain the proposition to extend the contract for that length of time; as the business has been a disappointment to me, I would ¡rather have it from my hands. And for that reason X decline to pay for the patterns, the inventoried price. Under the circumstances, ¡having pumps, material and castings, etc. on hand, I am compelled to continue the sale and manufacture of pumps, at least for the present. I made you a proposition sometime ago in regard to the terms on which I would be willing to have you continue the sale of these pumps. You do not refer to that when you ask in your letter what discount I will make you now. I will say that that proposition holds good, or, if you prefer, I will give you five per cent on pumps made from your patterns, and ten per cent on pumps made from our patterns on regular list prices. Any order you may receive and be pleased to send to the Reliance Machine and Tool Works will be considered on either one of these two propositions. I "would have preferred to have gone over this verbally with you, but as I have been called away to go east suddenly, I write this in a hurry to let you know in time. Requesting your acknowledgment of receipt of this and your disposition in regard to it,

I remain, yours truly,

J. B. Buss.

The Hooker Steam Pump Co.

101 N. 3rd St.,

St. Louis, Feb. 8, 1905.

Reliance Machine and Tool Works,

Mr. J. B. Buss, Prop.,

St. Louis, Mo.

Dear Sir:

We received your favor of the 4th on the 6th, and as we do not understand from same what you mean to do in regard to our patterns, we beg you to inform us at once, especially as you told the writer in an interview about two months ago that you did not want to keep the patterns. You now say that you decline to pay for the patterns, at the inventoried price, but will continue the manufacture and sale of the pumps, “at least for the present.” Kindly advise us whetner you have elected to retain the patterns as your own property, by continuing the pump manufacture for four years and paying us during that period three per cent royalty on all sales. 'Our contract ends today and we certainly must know whether you wish to keep the patterns, and if so, in which of the two ways provided by the contract you elect to compensate us for same. Your proposition of several months back, made when we discussed a modified continuance of the contract, we felt we could not accept. Hoping to hear from you by return mail, we are,'

Yours very truly,

Hooker Steam Pump Co.,

W. C. Farrar, Pres’t.

The Hooker Steam Pump Co.,

Room 218 Granite Block, Market St.

St. Louis, Mar. 11, 1905.

Reliance Machine and Tool Works,

St. Louis, Mo.

Mr. J. B. Buss, Prop.

Dear Sir:

After careful consideration of your proposition for a year’s contract between us, we have finally decided that we cannot accept same, and that so far as concerns the compensation which we are to receive for our patterns, if you have decided to retain same, we will accept remuneration as provided in the contract which expired on Feb. 8th. Therefore in order to have the matter definitely settled, we will ask you to state whether you wish to keep the patterns, as was your privilege under the contract, and if so, will you pay us for same in cash, or do you elect to continue the pump manufacture and pay us for our patterns the three per cent royalty on all sales for four years. Our patterns are the only tangible asset left of our plant and if they are to be taken from us, in all fairness we should receive for them the compensation, in such event, provided in the .contract. Kindly give us an answer by return mail and oblige, Very truly yours,

Hooker Steam Pump Co.,

W. C. Farrar, Pres’t.

Reliance Machine and Tool Works,

St. Louis, Mar. 16, ’05.

Hooker Steam Pump Co.,

.Granite Building, City.

Gentlemen:

I am willing to give you a commission of seven per cent upon those orders out of the stock on hand or with pumps manufactured for the purpose, but will do so only with a distinct understanding and consent on your part-that I waive no rights which I now possess under the contract between you and myself, just now expired, and shall treat those orders as an assurance to me from you that ■none of my rights under that contract whether it be deemed in existence or terminated shall be in any manner impaired by filling them. When you notify your assent to this condition, I will proceed to fill the orders on the basis of - a commission of seven per cent.

Tours truly,

J. B. Buss.

P. S. Enclosed I hand you copy of a letter just received from my attorney for your consideration.

March 17, 1905.

Reliance Machine and Tool Works,

J. B. Buss, Prop.,

St. Louis, Mo.

Dear Sir:

Referring to your letter of March 16th in regard to our orders, will say in reply that as we do, not wish to disappoint our customers, we will consent to your' proposition, hut do so only with a distinct understanding and consent on your part that we waive no rights which we now possess under contract which we have with you and which expired in part on Feb. 6, 1905. Trusting that this will he satisfactory pending our decision, we are,

Yours very truly,

Hooker Steam Pump Co.

The Hooker Steam Pump Co.,

101 N. 3rd Street,

St. Louis, Mar. 17, 1905.

Reliance Machine and Tool Works,

Mr. John D. Buss, Prop.,

St. Louis, Mo.

Dear Sir:

We are in receipt of your favor of the 16th with inclosed opinion of your counsel. In reply we beg to state that we laid the matter before our attorneys, who went carefully over the whole ground, and as a result, we are utterly unable to agree with the view of your attorneys, and ask you again to elect whether you will compensate us for our patterns by paying us three per cent on all sales for four,, years, or the cash inventoried value of patterns; or if you do not care to keep the patterns, we will voluntarily agree to take them back. If you do not elect, we will be compelled to elect for ourselves. We feel that we are entitled to your immediate answer as over five weeks have elapsed since we first asked you to make known your decision in the matter. You will recall that in your recent interview with the writer you were free to admit our right to three per cent royalty contended for in lieu of the cash consideration, but limited in your view, said royalty to certain sales only. The same admission was restated by Mr. J. B. Buss, your Gen. Mgr. over the telephone, when he refused.to fill certain orders, on which you had agreed to pay us ten per cent commission, until you had settled the question of the extent of the application of the three per cent royalty. Your Mr. Saber also admitted its existence in g later conversation. We trust the matter may be settled amicably for the sake of both parties, but on one point we are settled in our opinion;’ That we cannot be deprived of our remaining interest in the Hooker Pump Plant, namely, our patterns, without compensation. We were' willing and wished to renew the contract; we were unable — did not in fact refuse — but asked for more time to take all pumps, machinery, etc. off your hands. This extension you declined to grant. The plain, fair and only equitable construction to be put on the clause of the contract upon which we rely is the purpose, in just such a contingency as has arisen, of affording you the means of continuing the business, and ourselves a satisfaction for our patterns. This contingency was in the contemplation in the very framing of the contract. The possibility of our failure to take your stock, etc. at the expiration of four years, was foreseen. Hence the provision giving you the opportunity of buying our patterns, to permit you to continue the manufacture of the Hooker pumps. Kindly give us your answer not later than tomorrow and oblige,

Yours very truly,

Hooker Steam Pump Co.,

W. C. Farrar, Pres’t.

March 20, 1905.

Hooker Steam Pump Co.,

Wm. C. Farrar,, Pres’t.

Bear Sir:

I received your letter of yesterday and have given it careful consideration. I will not 'discuss the relative value of the opinions of our respective attorneys alluded to therein, but would remind you as an additional matter for consideration that when I entered into the contract with your company, I was made to believe by you, that the Hooker steam pump was covered by subsisting patents which gave the right to manufacture it, that the patterns were complete for the full line of pumps, and that the amount of business you intimated to do would justify me to put up the additional machinery to the extent I'have done, which together formed the basis of that contract. This, however, was not grounded on the fact. The admissions you mention, if any such were made — which I do not concede — arose from a mistaken view of my legal rights under the contract and cannot now affect those rights in any manner. I never opposed a fair compromise but you have offered none, preferring apparently to stand on what you say are your rights. Under those circumstances, I can only follow the same course, so far as insisting on my rights under the contract goes, and therefore I demand that you immediately appoint an appraiser under the contract to act with one appointed by me to appraise the value of patterns, core boxes and drawings as provided in section seventeen. Should you fail or decline to appoint an appraiser, I will have appraisement made, give you credit for any sum you may be entitled to under these appraisements on the amount due me for the machinery, etc., which you agreed to pay for under clause seventeen, and then call on you to further comply with that contract by paying me the balance. When you do so, you can have all the patterns, machinery, etc. specified to be given you, on such payment by clause seventeen.

Reliance Machine and Tool Works,

St. Louis, Mo., April 22, 1905.

Hooker Steam Pump Co.,

Granite Bldg., City,

Gentlemen:

Under date of Jan. 27, 1905, I sent you statement showing the net value of all the stock of pumps, material, special tools, etc., on hand, which according to an agreement between us dated Feb. 8, 1901, you were to take back after expiration of said agreement. On March 21st I requested you to appoint an appraiser for the purpose of appraising the patterns in order to ascertain the value of the patterns which you turned over to me on the date of the agreement, that the amount of depreciation, if any, might be deducted from said amount of stock, as above mentioned, and the balance be paid to me on turning over said stock to you. As you have ignored said request as expressed in my letter of March 21st, and after waiting a reasonable time, I have had said patterns appraised, according as I stated in said letter, and have also caused the patterns which I was compelled to furnish in course of time on account of the incompleteness of your line of patterns in order to present to the trade a full line of pumps mentioned in your catalogue, to be appraised. Enclosed I hand you a complete statement of what you owe me, after deducting from my bill the difference of the present valuation of your patterns from what they were appraised at four years ago, which difference amounts to $102.60, detailed statement of which signed by the appraiser I am ready to furnish if desired. I again request you to take the stock of pumps, material, etc. from my hands, on paying amount of bill due me and oblige,

Yours truly,

J. B. Buss.

The Hooker Steam Pump Co.,

406 Market St.

St. Louis, Mo., April 26, ’05.

Reliance Machine and Tool Works,

Mr. John B. Buss, Prop.,

St. Louis, Mo.

Dear Sir:

Will say in answer to yours of the 22d inst. that we fail to understand how you can consistently make the demand therein made. You declined last January to give, us further time to take pump plant off your hands and now at this date come at us with this demand. You apparently forget that your letter of Feb. 4th distinctly acquiesced that you proposed to continue manufacturing pumps. This and your acts since the expiration of contract are sufficient refutation of your right to make the demand in question were our rights not amply protected by a clause in our contract which you persistently ignore. Aside from the above conclusions, however, the contract by its very terms contemplated and provided for just the contingency which has arisen, namely, our failure to take off your hands stock of pumps, machinery, etc. In such contingency only were you given the right — of which you have availed yourself — to manufacture pumps and to retain our patterns as your own property by paying us for same in one of the two ways in the cpntract provided. You have declined or neglected to elect in which of the ways provided you would pay us, though we have repeatedly urged you to elect, and notified you that should you fail to elect we would ourselves make an election. Your refusal to allow us the three per cent royalty on sales as evidenced by your statement a few days ago and the unwarranted position assumed in your.letter of the 22d compels us to elect for ourselves. We therefore elect that you pay us the inventoried value of the patterns as provided in contract and ask you to kindly send us remittance for amount of same, sixty-two hundred and forty-nine ($6249.00) dollars. We trust you will appreciate our position which is simply due to a radical difference of opinion as to our respective rights. Awaiting your prompt answer, we are,

Yours very truly,

Hooker Steam Pump Co.,

W. F. Fajeras, Pres’t.

Reliance Machine and Tool Works,

St. Louis, Mo., May 2, 1905.

Mr. Wm. C. Farrar,

Granite Bldg., City.

Dear Sir:

I have just received your letter of the 26th inst. I cannot accept your interpretation of the contract, or acknowledge your claims, and must insist on the demand made in my last letter to you. Yours truly,

J. B. Buss,

Prop. Rel. Mac. & Tool Wks.

The Hooker Steam Pump Co.,

. 406.Market St.

St. Louis, June 6, 1905.

J. B. Buss, Esq.,

Prop., Reliance Machine & Tool Works,

St. Louis, Mo.

Dear Sir:

■We wrote you on the 26th April last making a formal demand in support of our legal rights, that you pay us the value of the patterns which you acquired from us, under the provisions of the contract, -which expired Feb. 8th, last. Your answer by letter dated May 2d, last, was entirely beside the mark, as you are aware that the question of taking over your machinery was settled months ago. There is no disputing the fact that the contract on which we base our claims was submitted before its execution to your present attorney, Mr. Kinealy, for our mutual benefit. Every clause was gone over and its meaning and purpose discussed.' The meaning of tbe clause on wbicb we now base our claim was at that time understood to mean just wbat it says, and wbat we claim. How it can be distorted to mean anything else is past our understanding and that of our attorneys. We are certainly entitled to this money and we trust upon further consideration you will pay us without bringing the matter into court. Will you kindly give us your final answer and oblige.

Yours very truly,

Hooker Steam Pump Co.,

W. C. Farrar, Pres’t.

St. Louis, Mo., June 6, 1905.

Me. Wm. C. Eaeeae, Care Hooker Steam Pump Co.,

Granite Bldg., City,

Dear Sir:

I acknowledge receipt of your letter and will say that I cannot agree with your views and your construction of the agreement, as stated to you before.

Yours very respectfully,

J. B. Buss.

On June 15, 1906, plaintiff brought this snit for $6249.60, the appraised value of its property. Defendant counterclaimed for the appraised value of the property added by him to the stock on hand at the expiration of the contract, and tendered said property, and asked judgment for $18,221.95. Issue was joined by reply. There was evidence tending to prove that defendant since the expiration of the contract has used the property loaned by plaintiff and his own additions to make and sell pumps on his own account, paying plaintiff the commission stipulated in the letters for sales made by it. • The case was submitted to the court, sitting as a jury. The court rendered judgment for plaintiff’s claim and for the counterclaim of defendant, and gave judgment for defendant for the balance of $17,544.84. Both parties appealed.

OPINION.

I. The rights of the parties grow out of a correct construction of section 17 of their contract and their action thereunder after the discontinuance of the contract. That clause of the contract contains the elements of its interpretation without recourse to extraneous evidence. It provides for a re-appraisement of the “patterns, core boxes and drawings” furnished by plaintiff, and the payment to the proper party of any increase or decrease in their value from the first appraisement. It then provides for the repayment to defendant of the cost of things added by him to carry out the contract, fixing this at the price paid by him less deduction for wear and tear, and for the further reimbursement to him of all pumps and parts of pumps on hand at cost price, with the proviso that if plaintiff “refuses to take said patterns, machinery and stock,” then defendant may retain the things loaned by plaintiff as his own property, and thereafter do business on his own account “by paying” plaintiff a royalty on all sales of Hooker steam pumps made by him for the next four years, or by paying plaintiff the original appraised value of the said loaned articles. The contract then provides that if plaintiff shall purchase the added appliances and the stock on hand, the defendant will not engage in the future manufacture of “steam pumps” except upon condition specified.

There is no uncertainty or ambiguity about the meaning of the language of this clause nor the oilier clauses of the contract.. It was discontinued according to its purview by a written notice sent to plaintiff six months before the lapse of four years after its formation. The relative rights and status of the parties on February 1, 1905 (the date the contract was ended) were therefore governed by its terms and provisions with reference to that contingency. These are clear, certain and specifically definitive of the mutual rights and duties of the parties after the cessation of their contract.

At the close of its contract, plaintiff could repay defendant for the added materials and the stock on hand and continue the pump business on its own account or defendant could buy for money or a royalty the reserved title of plaintiff on the things loaned, and continue the business on his own account. The terms of the contract demonstrate that plaintiff was not obligated, unconditionally to “reimburse” defendant for his additions in the way of material and his stock on hand. Such a construction would nullify the last paragraph of section 17, which provides that if this reimbursement is made, defendant shall go out of business, which necessarily involves the meaning that defendant could only continue in business if plaintiff refused to reimburse him by exercising its option to buy. This contract afforded each party the correlative and conditional option to buy or not to buy the property of the other in language leaving no room for construction.

II. The next consideration is the effect if any, of the letters of the parties altering or modifying the status in which they were left on the eessati on of their agreement. The first letter was by defendant of date January 27, 1905, offering to sell his interest to plaintiff, who replied that it was unable to purchase and asked a continuance of the agreement, which defendant refused to grant. There is nothing in any of the subsequent letters from plaintiff which indicates thht it at any time receded from its refusal to buy the articles tendered by defendant in his letter of January 27, 1905. All that can be gathered from these letters from plaintiff is the renewed demand thal defendant should indicate how he would pay for the articles put in his custody during the life of the contract and which were not surrendered at its termination. In none of the letters of defendant is there any direct answer to this question, other than a statement in one of them that he did not propose to pay the inventoried price. He was free to decline this purchase for he was not compelled to use plaintiff’s property. The terms of the contract compelled him only in case he desired to continue the business and to appropriate plaintiff’s property for that purpose, to pay either its inventoried price or a royalty of three per cent on sales. He did carry on the business for himself, and he and plaintiff did make a non-pre judicial agreement as to commissions to be paid plaintiff on future sales of the products of the business conducted by him; but he never paid plaintiff the royalty specified in the contract as one of the two ways in which he might acquire title to the loaned things, nor did he pay for them the cash price fixed by the contract.

Clearly, therefore, there was no error in the findings of the trial court against him for the price of these articles. For he kept and used them as his own and never tendered .them to plaintiff, and failed to state upon repeated demands how or in which manner he would pay for them. Our conclusion is that the verdict in plaintiff’s favor for the agreed value of this property should stand, and that judgment be entered on said verdict, as of the date of its finding.

III. The remaining question is, should the verdict for defendant stand? We do not perceive any theory of the facts upon which that verdict can be upheld. Under the terms of the contract plaintiff had a right to retake the custody of the articles loaned defendant and to buy from him his additional machinery and stock left over. Plaintiff had also the right to refuse to do this, in which event the defendant’s right accrued to carry on the business on his sole account, and to that end to take' as his own the loaned articles by paying for them in cash or on the basis of a rovaltv on sales. Defendant did not have the right under the contract to compel plaintiff to buy from him; nor did plaintiff have the right under the contract to compel defendant to buy of it; both parties might have abandoned the business altogether, each retaining that which belonged to them respectively. But the business could not be carried on after the end of the contract by either except in compliance with the stipulartions therein governing its future conduct. Defendant did carry on and still conducts (as far as this record shows) the business for which the contract was made as his own business, and has used plaintiff’s property in so doing. It necessarily follows that he has thereby obligated himself to plaintiff in the manner specified in their contract.

It is no answer to say that defendant was willing and now offers to sell the “additional machinery and left over stock” to plaintiff, even if he were in a position to make that tender good, which the record does not disclose. For plaintiff did not covenant unconditionally to buy the property. It only covenanted what price it would pay if it desired to purchase, and what price it would receive if defendant desired to purchase the property. Plaintiff never took any position repugnant to its declination to buy. Defendant did take a position inconsistent with the exercise of its option not to buy. For he retained and used plaintiff’s property' as his own up to the date of .trial, and neither in his pleadings nor on the trial ever made any offer to return it.

The sum of the case is, that defendant has the property of plaintiff for which he has not paid in either of the modes he might have done under the contract; and he has his own property, which he offered and still offers to sell to plaintiff, and which plaintiff refuses to purchase, as it had the contract right to do.

It follows that the verdict for defendant for his counterclaim was erroneous and must be set aside, and a finding made that he is not entitled to recover thereon, and judgment rendered accordingly. Tlie judgment is reversed and- the cause remanded to be disposed of in accordance with this opinion.

Brown, Gconcurs.

PER CURIAM. — The foregoing opinion of Bond, Ci, is adopted as the opinion of the court.


author: WOODSON, J.

text:
    CITY OF STOCKTON v. HANNAH C. BACON, Appellant.
    Division One,
    February 29, 1912.
    APPEAL: Condemnation: Untimely Appeal to Circuit Court: Appellate Jurisdiction. Where a city instituted a proceeding before the board of aldermen to have defendant’s land condemned for cemetery purposes, which resulted in a judgment establishing the cemetery and assessing damages and benefits, and ’defendant appealed to the circuit court, and there, upon motion, the appeal was dismissed because not timely taken, 'an appeal from that judgment of dismissal does not involve title to real estate, and the Supreme Court is without appellate jurisdiction.
    Appeal from Polk Circuit Court. — Hon. Argus Cox, ■ Judge.
    Transferred to the Kansas City Court of Appeals.

      G. H. Skinker for appellant.

      J. W. Collins for respondent.
   WOODSON, J.

The city of Stockton, a city of the fourth class, .instituted this suit, under section 5993, Revised Statutes 1899’, before the board of aider-men to condemn a tract of land, as an addition to and for cemetery purposes.

All the proceedings seem to have been regular, which resulted, on March 16, 1906, in a judgment and decision assessing damages and benefits. From that judgment, the defendant, on July 11, 1906, appealed to the circuit court of Cedar county and the case was upon change of venue taken to the circuit court of Polk county.

Prior, however, to the talcing the change the appellant filed in the circuit court of Cedar county a demurrer to the proceedings and asked the court to dismiss the cause.

Also the respondent filed a motion to dismiss the appeal and strike the case from the docket, because the appeal was not timely taken.

When the cause reached the circuit court of Polk county, the motion to dismiss the appeal was taken up and considered, and was by the court sustained.

Appellant saved her exceptions, and duly appealed the cause to the Kansas City Court of Appeals; and upon motion, the latter court transferred the cause to this court, for the reason stated, that the title to real estate was involved.

I. After a careful consideration of the case, we are satisfied that the title to real estate is not involved in this appeal.

If the circuit court of Polk county properly dismissed the appeal, because it was not taken in time, and should this court affirm that ruling, we would simply say as it said, the appeal was not timely taken and would .affirm the order of dismissal, and would no more pass upon the merits of the case, than did the circuit court.

And upon the other hand, should this court hold that the appeal was timely taken then, the order of dismissal would be set aside and the cause remanded to the circuit court to be tried upon its merits.

In neither, case would the merits be involved, and in the very nature of things the title to the real estate could not be involved in this appeal.

The cause is, therefore, remanded to the Kansas City Court of Appeals.

All concur.


text:
    RINGROSE J. CAPITAIN et al., Appellants, v. MISSISSIPPI VALLEY TRUST COMPANY et al.
    Division One,
    February 29, 1912.
    1. JURISDICTION: Venue: Suit to Annul Judgment: Cloud on Title. A suit whose primary purpose is to remove a cloud. • upon the title should he brought in the county where the land lies; but where the primary purpose of the suit is, by direct attack, to cancel a judgment, and the removal of the cloud upon the title is only incidental or ancillary thereto, the suit may be brought in the county where the judgment was rendered, though the land lies in another county. Sec. 2516, R. S. 1909, authorizes that course.
    2. JUDGMENT: Void on Face: Equity. A judgment which on its face recites due process upon defendants, and the appointment of a guardian ad, litem to act for the minor defendants and that he did act, is not void upon its face; but those recitals being false, and there being no service in the only method prescribed by law for service in such case, and the fact being that the guardian ad litem knew nothing of the proceeding, a suit in equity will lie to cancel and annul the judgment. [Following Priest v. Capitain, 236 Mo. 446.]
    3. -: Lack of Jurisdiction Over Parties. Failure to obtain jurisdiction over the persons of the minor defendants renders-the judgment invalid. No action of the guardian ad litem can confer jurisdiction over the non-resident minors if they had not been served and proper proof made of that service in the manner prescribed by statute.
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    Reversed and remanded.

      William F. McLaughlin, Robert & Robert and William L. BecMold for appellants.
    (1) This is a writ of error coram nobis and is the proper procedure to set aside a judgment for errors of fact and fraud. Smith v. Young, 136 Alo. App. 82; Cross v. Gould, 13<1 Mo. App. 600; Neenan v. St. Joseph, 126 Mo. 89; Craig v. Smith, 65 Mo. 536; Duggan v. Scott, 37 Mo. 663; Ex parte Tony, 11 Mo. 661; Fisher v. Fisher, 114 Mo. App. 627; Hadley v. Benero, 103 Mo. App. 549; State ex rel. v. Clarkson, 88 Mo. App. 553; State ex rel. v. White, 75 Mo. App. 257; Hirsch v. Weisberger, 44 Mo. App. 509. (2) No statute of limitations applies to a writ of error coram nobis. Powell y. Gott, 13 Mo. 458; Randalls v. Wilson, 24 Mo. 76; Latschaw v. McNees, 50 Mo. 381; Ex parte Gray, 77 Mo. 160; State v. Wallace, 209 Mo. 358; Hirsch v. Weisberger, 44 Mo. App. 506. (3) A suit cannot be further prosecuted against infant defendants after service of process until a guardian ad litem has been appointed. Any judgment rendered, without the appointment of a guardian ad litem, is void and can be set aside at a subsequent term on writ of error coram nobis. R. S. 1889, sec. 2005; R. S. 1899; sec. 558; Wells v. Wells, 144 Mo. 198; Neenan v. St. Joseph, 126 Mo. 89; Lehew v. Brummell, 103 Mo. 546; Cross v. Gould, 131 Mo. App. 600; State ex rel. v. Gawronski, 110 Mo. App. 414; Weiss v. Coudrey, 102 Mo. App. 68; Bishop v. Seal, 92 Mo. App. 170. (4) Written consent of person proposed as guardian shall be filed in the office of the clerk of the court before any answer by such infant shall be filed. R. S. 1889, sec. 2006; R. S. 1899, sec. 559; R. S. 1889, sec. 2007; R. S. 1899, sec. 560; Reineman v. Larkin, 222 Mo. 156; Kuhrts v. Isenstein, 123 Mo. App. 288; Creech v. Creech, 10 Mo. App. 586. (5) Where the officer serving the writ without the State of Missouri swears to it before anybody but the “clerk or judge of the court of which he is an officer” the return is void. R. S. 1889, sec. 2029; R. S. 1899, sec. 582; Russell v. Grant, 122 Mo. 179; Murdock v. Hillyer, 45 Mo. App. 287; Adams v. Hecksclier, 80 Fed. 742; Barber v. Morris, 37 Minn. 194; Harris v. Sargent, 37 Ore. 41; State v. Foreman, 121 Mo. App. 509. (6) Where a mode of securing jurisdiction differing from that of the common law is prescribed by the statute, nothing less than a rigid and exact compliance with the provisions of the statute will confer jurisdiction. Kelly v. Murdagh, 184 Mo. 377; Feurt v. Caster, 174 Mo. 289 ; Corrigan v. Schmidt, 126 Mo. 304; Harkness v. Cravens, 126 Mo. 233; Myers v. McRay, 114 Mo. 377; Charles v. Morrow, 991 Mo. 646; Quigley v. Bank, 80 Mo. 297; State ex rel. v. Staley, 76 Mo. 158; State ex reí. V: Horine, 63. Mo. App. 1; Tourville v. Wabash, 61 Mo. App. 533. (7) When service of process is not duly made on a minor, the court acquires no jurisdiction, cannot appoint a guardian ad litem for him, and a judgment rendered, against him is a nullity. Scott v. Royston, 223 Mo. 605; McMurtry v. Fairley, 194 Mo. 502; Wright v. Hink, 193 Mo. 130; Smoot v. Judd, 184 Mo. 555; Westmeyer v. Gallenkamp, 154 Mo. 28; Fischer v. Siekmann, 125 Mo. 165; Payne v. Masek, 114 Mo. 637. (8) The circuit court could acquire no jurisdiction by substituted service, even if the minors had been properly brought in. R. S. 1889, sec. 2029; E. S. 1899, sec. 582; R. S. 1889, sec. 2022; R. S. 1899, sec. 575. (9) The life tenant Sophia M. Capitain, being possessed of the legal title, the possession of the life tenant is not adverse to that of the remaindermen and such tenant cannot by her dealings with the estate make her or her grantees’ possession adverse to the remaindermen, so as to start the Statute of Limithtions against them during the life estate. Charles v. Pickens, 214 Mo. 212; McMurtry v. Fairley, 194 Mo. 502; Reed v. Lowe, 163 Mo. 519; Whitaker v. Whitaker, 157 Mo. 342; Fischer v. Siekman, 125 Mo. 165; Thomas v. Black, 113 Mo. 67; Null v. Howell, 111 Mo. 273; CoL yin y. Hauenstein, 110 Mo. 575; Hickman v. Link, 97 Mo. 482; Sutton v. Casseleggi, 61 Mo. 397; C:arr v. Dings, 54 Mo. 95. (10) Even though judgment he entirely void, the party against whom it exists has the right to have it vacated and thus clear away any cloud. 1 Black on Judgments (2 Ed.), sec. 318, p. 483; Irvine v. Leyh, 102 Mo. 204. (11) An order of the circuit court as a court of chancery made on an ex parte petition by a testamentary trustee, authorizing him to encumber the trust property to pay taxes due thereon, .is void as against the beneficiaries, as they were necessary parties to the proceeding. Sampson v. Mitchell, 125 Mo. 217. (12) It was the duty of the life tenant to keep up repairs, to pay annual taxes and to pay the interest on encumbrances. Bone v. Tyrrell, 113 Mo. 188; Reyburn v. Wallace, 93 Mo. 326; Hildenbrandt v. Wolff, 79 Mo. App. 333; Bobb v. Wolff, 54 Mo. App. 515. (13) It is a natural and the legal duty of a-father to support, maintain and educate his children. In re Scarritt, 76 Mo. 584; Perrin v. Wilson, 10 Mo. 451; Rankin v. Rankin, 83 Mo. App. 335. (14) Trustees have no power, in the absence of an express provision for the maintenance of infant beneficiaries, to devote any part of a trust fund to such purposes, so long as the father of the beneficiaries has sufficient ability to support them. Hughes v. Hughes, 1 Brown’s Ch. 387; Mundy v. How, 4 Brown’s Ch. 226; MeKnight v. Walsh, 23 N. J. Eq. 24; Ibid., 24 1ST. J. Eq. 498; National Bank v. Hancock, 100 Va. 107; Burker v. Turner, 85' N. C. 500; 28 Am. and Eng. Ency. Law, p. 1012; Edson v. Bowie, 2 Bland 606. (15) The rule: “One having the legal title to land and out of possession cannot invoke equitable jurisdiction to remove a cloud upon his title” does not apply where the plaintiff has only an equitable title and the legal title is in the defendant. Peters v. Berkemeier, 184 Mo. 399; Sneathen v. Sneathen, 104 Mo. 201; Graves v. Ewart, 99 Mo. 13; ’Mason v. Black, 87 Mo. 329. (16) One purchasing at a judicial sale does so at Ms peril and takes all the hazards of the bargain; the .rule of caveat emptor applies to execution sales, executors’ and administrators’ sales', sheriffs’ and commissioners’ sales. Palley v. Schlatitz, 180 Mo. 231; Plaster v. Grrabell, 160 Mo. 669; Throckmorton v. Pence, 121 Mo. 50; Estes v. Alexander, 90 Mo. 453 ; Cravens v. Cordon, 53 Mo. 287; Cashion v. Faina, 47 Mo. 133; Strouse v. Drennan, 41 Mo. 289; Foley v. Boulware, 86 Mo. App. 674; Wheeler v. Ball, 26 Mo.' App. 443.

      Joseph 8. Laurie and Albert Blair for respondent.
    (1) Assuming that plaintiffs have the right to maintain this action, in order to become entitled to the relief sought, plaintiffs must show that said judgment was absolutely void; either because the court acquired no jurisdiction over them as defendants in that action, or because the appointment of a guardian ad litem for them as infant defendants, without his knowledge or consent, rendered the judgment void; or because the court had no jurisdiction over the subject-matter, and was consequently powerless to enter said judgment. The petition herein alleges that the court acquired no jurisdiction over defendants in the original action for the reason that the affidavit by the officer of the service of the writs, instead of being made before the clerk of the court of which he was an officer, as required by our .statute (sec. 582), was made before the deputy clerk of said court, and that the certificate of the official character of said officer, instead of being signed by the clerk of said court, with the seal attached, was signed in the name of the clerk by said deputy clerk with the seal of the court attached. When the action herein was brought assailing, among other things, the alleged defect in such return, an application, in behalf of said deputy sheriff, was made to the court wherein the original cause was pending, to amend such return so that the same should conform literally to the statute. Said motion, together with the amended return was submitted to the court, plaintiffs’ counsel being present, and the court, after having considered the same, made an order allowing the motion to be amended as prayed. Thereupon said defendant (plaintiffs herein) took an appeal from the order of the court allowing said amendment, which appeal is now pending in this court, and by order of this court is to be argued and submitted in connection with this case. We have already filed a brief in said case, and do not, therefore, deem it necessary or proper to re-argue in this case the question as to the sufficiency of such return, or the power of the circuit court to allow the amendment. We will say, however, that defendants herein never have admitted or conceded that the original return was void; or that an amendment was essential. Said amendment was made merely as a matter of precaution. (2) It is claimed that Sellers was ap- * pointed guardian ad litem for defendants without his knowledge or consent, and that the attorney who had filed an answer in behalf of said guardian ad litem, acted without' his authority, and therefore that the judgment was rendered void, even though the court had acquired jurisdiction over the defendants by due service of the writ. Conceding, for the sake of the argument, that the facts as to the appointment of the guardian ad litem and the answer of the attorney are as claimed, still this was at most only an error which rendered the judgment liable to be reversed upon appeal or writ of error, but did not affect the jurisdiction of the court over such defendants, and consequently the purchasers under such judgment ape entitled to protection. 22 Cyc. 641; Black on Judg., see. 193; 10 Ency. PI. & Pr., 630 ; Rineman v. Larkin, 222 Mo. 171; Field on Infants, secs. 34,165, 166; Freeman on Judgments, see. 487; Townsend v. Cos, 45 Mo. 401; Charley v. Kelley, 120 Mo. 134; Cochrane v. Thomas, 131 Mo. 258; Weiss v. Coudrey, 102 Mo. App. 65. (3) A court of equity has inherent jurisdiction to authorize the sale even of the legal estates of minors in real estate, whether in possession or remainder, for the payment of debts and the maintenance of the infants; and as to the equitable estates of infants, it is settled that a court of equity has inherent jurisdiction to direct a sale thereof whenever it becomes necessary, either for the preservation of property, the maintenance and education of the infant, or for the purpose of reinvestment.' 10 Ency. PI. & Pr. 1033-7; 22 Ency. of PI. & Pr. 72, 75>, 87, 733, 743; Pitcher v. Carter, 4 Sandf. Ch. (N. Y. L.); Anderson v. Mather, 44 N. Y. 249 ; Greenlaw v. Greenlaw, 16 Lea (Tenn.) 435; Gassenheimer v. Gassenheimer, 108 Ala. 651; Gavin v. Cur-tin, 171 111. 640; Gorman v: Mullins, 172 111. 349; Kearney v. Vaughan, 50 Mo. 284; Hamer v. Cook, 118 Mo. 476; Sampson v. Mitchell, 125 Mo. 217; Stevens v. De La Vaulx, 166 Mo. 28; Heady v. Crouse, 203 Mo. 100.
   GRAVES, P. J.

This case has for its companion the case of John G. Priest, Trustee, et al. v. Ringrose J. Capitain et ah, 236 Mo. 446, decided at the last term of this court, and reference should be had to the opinion in the Priest case for some of the details in the case at bar. As will be seen the Priest case was one in which John G. Priest, as trustee under a deed made by Ringrose J. Watson, applied to the circuit court of the city of St. Louis for an order to sell the real estate. An attempt was made to bring the present plaintiffs into court by service of process upon them in the State of California. In this Priest case we held that the circuit^court did not acquire jurisdiction over the plaintiffs in this case because there was no valid proof of the service of the writ of summons upon them in the State of California. In the original Priest case the lands were ordered sold and were sold in accordance with such order of the circuit court. These plaintiffs were infants.

In the ease at bar the plaintiffs seek to have the judgment and decree rendered by the circuit court of the city of St. Louis in the original Priest case declared null and void and the deeds made in pursuance of said sale under such order and decree declared null and void, and for other and further relief as called for in the prayer. The petition is exceedingly verbose and sets out in full the matter discussed by this court at the last term in said Priest case supra. The petition omitting these details reads:

“Now come the plaintiffs in the above entitled cause, Eingrose J. Capitain, Chouteau Capitain and Isabella Capitain Williams, and by leave of court, file tins their amended petition, and for their cause of action state that the defendant Sophia M. Capitain was the daughter of Eingrose J. Watson and intermarried with Prank J. Capitain; that the plaintiffs Eingrose J. Capitain and Chouteau Capitain were the only, sons born of said marriage, and are still living; that the. plaintiff Isabella Capitain Williams, now the wife of -----Williams, and the defendant Manette PIowenstein, the wife of---Howenstein, now a widow, were the only daughters born of said marriage.
“That on the 6th day of October, 1869, Eingrose J. Watson was the owner in fee of the following described property:
“Lot number three of the subdivision of the estate of Eingrose D. Watson, deceased, containing thirty-three and thirty-two hundredths (33.32) acres, being lot number three of subdivision of a tract of one hundred and five (105) arpents conveyed to E. D. Watson by John Mackey, in United States Survey Number 2033, in the county of St. Louis, State of Missouri.
“That on said day said Eingrose J. Watson conveyed to Joseph Bogy and Edward T. Parish, by deed record in Book 394, page 527, of the office of the Becorder of Deeds of the city, then county, of St. Louis, said real estate and other real estate therein described. That said conveyance was made to said Bogy and Farish in trust for the sole and separate use of Sophie M. Capitain, the daughter of the said Watson (said Sophie then being a feme sole named Sophie M. Watson), for and during her life, free from the control of her husband should she marry, and after her death in trust for the heirs of the body of the said Sophie M. Capitain (formerly Watson) in fee; provided that so soon after the death of the said Sophie M. Capitain (formerly Watson) as any surviving child of the said Sophia shall have attained the age of twenty-one years, such child shall hold its interest in said property wholly discharged of the trust; and also providing for further disposition of the property in case the said Sophia M. Capitain (formerly Watson) died leaving no children. .A copy of said trust deed is hereto attached and marked ‘Exhibit A’ and made a part hereof.” •

. Here follow the allegations as to how Priest became trustee and the court proceedings begun by him to procure the sale, and allegations as to the sale itself and the deed made thereunder. The details of these matters are found in the opinion in the Priest case, supra. The petition in the present case thus concludes :

“That under said decree the land herein described was ordered sold and said John Gr. Priest, as trustee and commissioner, sold said land to A. K. Stewart, and on October 28, 1892, aclmowledged a deed conveying said land to said A. K. Stewart.
“That on the second day of January, 1892, defendant, the Mississippi Valley Trust Company, was duly appointed trustee under said deed in the place and stead of said John Cr. Priest.
“That the defendants Sophie M. Capitain and Manette Howenstein are non-residents of this State. That Sophia M. Capitain is now sui juris and is a resident of the city and county of Los Angeles, State of California; that the whereabouts of Manette Howenstein are unknown, and that the ordinary process of law cannot be served upon the said Sophie M. Capitain and the said Manette Howenstein. That the plaintiffs are the only surviving children of the said Sophie M. Capitain except Manette Howenstein (formerly Capitain), who is also a child of the said Sophie M. Capitain, and a widow. That Prank J. Capitain was the husband of Sophie M. Capitain and is now dead. That no children born to the said Sophia M. Capitain have died leaving children. That Ringrose J. Capitain was born October 291, 1875; that Isabella Capitain Williams was born May 1, 18791; and Chouteau Capitain was born February 15,1882.
“Plaintiffs further state that said order of court, said sale and conveyance to said Stewart, and said decree and the amendments thereof, were void, for the reason that this court was without jurisdiction to render said decree or make said orders, for the reason that it acquired no jurisdiction over the infants, they having not been served according to the requirements of the statutes of the State of Missouri, and the officer pretending to have served them with copies of the alias writ and petition and amended petition not having made return to such service in accordance with the statutes of Missouri. And for the further reason that the court had no jurisdiction of the subject-matter of the action, and that the court had no power to sell the remainders vested in these plaintiffs for the benefit of the life tenant, and that it was the duty of the life tenant to pay the taxes and mortgage on said land, and that the remainders of these plaintiffs could not be sold by the court because of such default on the part of said life tenant, and that these plaintiffs had no interest in the income from said property during the life of said life tenant, and that at the time the father of the plaintiffs, the said Plank J. Capitain, was then living and was supporting- these plaintiffs, as he was bound in law to do.
“That said decree, order of sale, alleged sale and conveyance were void, for the further reason that the appointment of said John M. Sellers was without the knowledge or consent of said Sellers; that his answer was filed therein at the instance and behalf of the plaintiff and was fraudulent as to these plaintiffs, and that said plaintiffs were not represented in said suit.
“That said proceedings, the decree rendered therein, and the amendments thereof, constitute a cloud upon the title to the remainders vested in these plaintiffs under said deed referred to herein as Exhibit A, and render the same unsalable.
“That the Mississippi Valley Trust Company, a corporation; the Continental Realty Company, a corporation; Edward B. Pryor, John C. Weber and E. L. Dozenbach, claim an interest in said land.
“Plaintiffs further state that they are without any remedy or any adequate remedy at law.
“That by reason of the premises said decree and the amendments thereof and said sale and conveyance were, as to these plaintiffs, null, fraudulent and void.
“Wherefore, plaintiffs pray that said decree rendered in said cause number 87948, and the amendments thereof, and said conveyance, be cancelled, set aside and for naught held, as to these plaintiffs, and for such other and further relief as to the court shall seem meet and proper.”

The answer is a general denial and several special defenses, which can best be noted as required. This sufficiently states the condition of the pleading. Upon trial the court dismissed plaintiffs’ bill for reason stated in a written opinion filed, but which reasons we deem immaterial here.

It will be observed that the plaintiffs are remaindermen with the life tenant yet living. It must be further observed that the gist of their action is to cancel this judgment and decree and the deed made under the sale directed by such judgment and decree for the alleged reason that such instruments constitute a cloud upon their title. The land specified in the petition is situated in St. Louis county and not in the city of St. Louis. The foregoing will suffice for a statement of the case.

I. At first blush the jurisdiction of the St. Louis Circuit Court might rest in doubt. The evident ultimate purpose of the bill is to remove a cloud from the alleged title of plaintiffs to land in St. Louis county, and not to lands within the territorial jurisdiction of the circuit court of the city of St. Louis. Plaintiffs so declare in their bill. They say this judgment clouds their title and renders their interest as remaindermen unsalable. Suits to remove cloud from title should be brought in the county where the land is situated. But the petition in this case may well be given another construction. It may be well classed as a direct action in equity to cancel a judgment, and as such action the suit was properly brought in the circuit court of the city of St. Louis.

We have a statute, section 2516, Revised Statutes 1909, which reads: “Proceedings on an injunction to stay a suit or judgment shall be had in the county where the judgment was rendered or the suit is pending, and the summons may he directed and served as summons in ordinary cases.”

This statute has been upon the books in the same . language for years. We -have held that such statute applies to cases where the purpose of the action is to annul a judgment.

In Davison v. Hough, 165 Mo. l. c. 578, Valliant, J., for the court said:

“We are satisfied that section 3631 (R1. S. 1899) was intended to apply to suits coming within that class in equity jurisdiction above referred to which have for their main purpose the annulling of a judgment or enjoining a proceeding at law, and was not intended to apply to a suit in which the jurisdiction in equity exists upon other grounds than that of affording relief by injunction, and when that relief is merely ancillary to the main object of the suit. This is the construction which courts of other States have put on their statutes of similar purport.”

Taldng the view therefore that the real gist of the action is to annul the judgment in the Priest case, and that the removal of the alleged cloud upon the title to lands is only an incidental matter, the circuit court of the city of St. Louis had jurisdiction perforce of the construction which we have given the statute, supra,

II. The judgment in the Priest case upon its face recited due service of process upon these plaintiffs as parties to that suit. It also recited the appointment of a guardian ad litem to act for them and that he did act, when under the evidence the guardian ad litem knew nothing of the proceeding. The judgment was not necessarily void upon its face. It required proof other than its own recitals to show that it was void. Under such conditions an action in equity will lie to cancel and annul such a decree, when brought by the proper parties, and there is no question in this case as to the present plaintiffs being proper parties to such suit. The amended judgment recites: “That due service of process has been had upon all of the said defendants, Sophia M. Capitain, Ringrose J. Capitain, Isabella Capitain and Chouteau Capitain, by the delivery to each of them at Los Angeles, in the State of California, more than twenty days before the beginning of the June term, 1892, by an officer of said State of California authorized to serve process within said State, a copy of the amended petition, and of the writ of summons for' said defendants heretofore issued herein; also that said defendant Sophia M. Capitain is an insane person and the other defendants minors and children of said Sophia; that an answer has been duly made and filed herein for said insane person and said minors by John M. Sellers, their guardian ad litem”

Prom this recital it appears that the court in the P'riest case had proof of due service of the process upon the present plaintiffs. Upon the trial of this cause, however, the evidence shows that there was no legal proof of the service of this process. The record in the case at bar upon this' point is the same as the record in the case of Priest v. Capitain, supra. In the later case we discussed the question involved in this ease, not because it was necessary to a disposition of that case proper, but because it was thoroughly briefed upon both sides, and seemed to have been taken by counsel as a necessary question in that case. We could have finally disposed of that case'by the simple holding that the trial court erred in allowing the proof of service to be amended or changed after judgment. However, we went further for the reasons above stated, and for the reasons stated in that opinion. A re-examination of the law in this case has not changed our views. We said then and say now: “The statute under consideration prescribes a single method of proof. It does not leave it open to other methods of proof.” There was an attempt to make the statutory proof of service, but it was utterly defective and therefore unavailing to confer jurisdiction upon the court. As the statute permits but one method of proof and as the evidence in this case conclusively shows that the statutory proof of service was not before the circuit court in the Priest case, it follows that the recitals in this judgment now attacked is erroneous and false. It also follows that the court had no jurisdiction over these plaintiffs in that P'riest case, and as to them that judgment and decree would be declared void, if they are not debarred by other matters.

III. We indicated above that the trial court filed a memoranda opinion in the cause. This gives us the theory of the trial court. Among other things the trial court held that this amended proof of service was proper, and through such amended proof the court had jurisdiction in the original Priest case. That the amendment related hack and made the service of process good. The court then proceeded to discuss the question of the trial court’s jurisdiction of the subject-matter in the Priest case, and held that there was jurisdiction of the subject-matter. The trial court also discussed the Statute of Limitations and held that these plaintiffs were not barred thereby. Of this last holding plaintiffs can not and do not complain here, but respondents urge it.

We need not discuss the jurisdiction of the subject-matter owing to the views which we have expressed as to the jurisdiction of the court over the person of the plaintiffs in the Priest ease. The failure of jurisdiction over the person rendered the judgment bad. No action of the guardian ad litem could confer jurisdiction if the minors had not been served and proper proof of that service made. [Scott v. Royston, 223 Mo. 568.]

What view the trial court might have taken of this case under the views which we have expressed as to this amended proof of service, and the judgment of the circuit court in the original Priest case on the original proof of service, is not exactly clear. The court erred in holding the original judgment valid and binding, and for that error its judgment must be reversed and cause remanded. With that original decree held to he good, there was nothing of substance left in plaintiffs’ bill. With that judgment and decree held to be bad, as we have indicated should be held, it would of necessity force a fuller consideration of other matters pleaded in the answer. The petition we think states a good cause of action, but we will leave the matters of defense open to a more thorough consideration upon a retrial of the canse, in the light of the views expressed in this opinion, as well as those expressed in the opinion in the original Priest case. These questions were, on the former trial, overshadowed by the greater question of the validity of the original judgment. With these views we reverse and remand the cause.

All concur.