author: BROWN, P. J.

text:
    A. M. GRAY v. BERTHA GURLEY, Appellant.
    Division Two,
    October 14, 1913.
    1. EJECTMENT: By Vendor: Failure to Pay Purchase Money: Dismissal: Costs. If tie vendor of land, sold under a written contract to defendant, tie payments to be made by monthly installments, iad been tendered all tiat was due iim at a time wien he did not possess tie right to forfeit tie contract and retake possession, then his suit in ejectment, brought under those circumstances, was premature, and upon its dismissal he was responsible for the costs therein.
    2. -; — : -: -: Oral Agreement as to Costs: No Consideration.- And an oral agreement between the parties regarding the dismissal, being without consideration, did not relieve the vendor of the obligation to pay the costs of such premature suit.
    3. -: -: -: Waiver. A letter written by the vendor to the vendee, at a time when installments on the purchase price of land were due, in which-he stated to the vendee, “Pay when you can and it will be all right,” was an unconditional waiver of his right to forfeit the written contract of purchase, both as to the payments then due and those that might thereafter accrue, except upon a notice from him revoking his waiver and setting some other date for forfeiture,

      4.' -: -: -: Sudden Revocation of Waiver: Prior Tender. Where an unconditional waiver of default in the payments due on the purchase of land has been made, the vendor cannot suddenly withdraw it and unconditionally declare the contract has already been forfeited; and a tender of the payments and interest then due, promptly made after such declaration, will defeat a forfeiture. The vendee having once been notified to pay when he could and it would be all right, the vendor should thereafter fix some definite time when he will declare a forfeiture unless payments are made.
    5. -: -: -: Effect of Tender at Revocation of Waiver. A tender of the balance due by the vendee when he is notified that a prior waiver is revoked, or'promptly thereafter, does not pay the debt, but it relieves the vendee of the duty of making .any further tender out of court, and from the payment of subsequent interest.
    6. FORFEITURE: Ignorant and Impecunious V.endee. In forfeiting contracts for nonperformance, the facts that the vendee is ignorant, impecunious and sick should not be entirely ignored, though they alone will not prevent a forfeiture; but when the vendor has once unconditionally waived default, those things increase his duty to fix a new date within which payment may be made.
    Appeal from Greene Circuit Court —Eon. James T. Neville, Judge.
    Reveesed (wnth directions).

      Moon & Moon for appellant.
    (1) Under the pleadings, law and evidence, judgment should have been for appellant, for the reason respondent failed to prove that he was entitled to the possession of the premises at the institution of this shit. Tarlotting v. Boken, 95 Mo. 544; Sec. 2382, R. S. 1909. (2) Under the present contract respondent is required to take two steps in order to terminate the tenancy: First, he must declare the contract forfeited and apply the payments as rent; second, he must then demand peaceable possession at some definite time. 1 Cyc. 56-G. (3) The contract makes seven per cent interest on all deferred payments the penalty for not making payments promptly, not forfeiture. (4) Equity will not consider time as of the essence of a contract. And this is especially so where the parties themselves have not so construed the contract. Tetley v. McEl-murry, 201 Mo. 393; Moberly v. Trenton, 181' Mo. 646; Sease v. Foundry Co., 141 Mo. 496; Watson v. Cross, 112 Mo. App. 620; 36 Cyc. 707, 717, 734. (5) Where time is of the essence of a contract it may he waived. Melton v. Smith, 65 Mo. 322; Scannell v. Soda Fountain Co., 161 Mo. 62; Mastín v. Crimes, 88 Mo. 485; 36 Cyc. 717, 734. (6) “If vendor objects to the tender at the time it is made on specific ground he waives possible objections to it on other grounds.” 36 Cyc. 704-F. (7) No consideration is necessary to support a waiver. May also he waiver by conduct. Griffith v. Cillum, 31 Mo. App. 41; Tetley v. MeElmurry, 201 Mo. 394; Polk v. Assurance Co., 114 Mo. App. 519; McCollum v. Fire Ins. Co., 61 Mo. App. 354; 36 Cyc. 717. (8) Equity abhors forfeitures, never aids forfeitures, and grants relief from them in all cases, except where it would he inequitable to do so. Tetley v. MeElmurry, 201 Mo. 394. (9) ’ Appellant having paid more than one-half the purchase price, and having tendered the balance with interest, and the respondent having failed to enforce a forfeiture according to the terms of the grant, justice, equity and good conscience demand that he accept the' tender and execute a deed. O’Fallon v. Kennedy, 45 Mo. 127. (10) Assignee of vendee may enforce assignor’s right to specific performance. Melton v. Smith, 65 Mo. 320; Majors v. Maxwell, 120 Mo. App. 281; 36 Cyc. 758.

      Hamlin & Seawell for respondent.
    If this court should consider the evidence is properly before it, we are satisfied that after examining the same the court will find that the trial court was right in its finding; and as the law in the case is well fixed, we will simply call the court’s attention to the case of Avery v. Railroad, 113 Mo. 561, on the point that ejectment is the proper remedy, and that the contract being forfeited by nonpayment of the payments, this is the proper action, and that under the facts in the case and the law, no demand is necessary before the bringing of the action. Brooks v. Gaffin, 192 Mo. 253.
   BROWN, P. J.

Ejectment for town lot; equitable answer; judgment for plaintiff; and defendant appeals.

Plaintiff vigorously assails appellant’s printed abstract of the record, hut, upon examination, we find that it contains all the pleadings, record entries, and a complete copy of the oral evidence. While the abstract is not as complete in some respects as it ought to he, we do not deem it so defective as to preclude a review of the case upon the merits.

The following is a brief history of the transaction out of which this litigation arose:

In March, 1905, plaintiff sold to .defendant lot 12 in Forest Home Addition to Springfield, Missouri, for $225, to he paid in monthly installments.

Between the date of said sale and June 15, 1906, • defendant paid all of the purchase money for the above described lot except $146.35.

On said last named date the contract of purchase between plaintiff and defendant was voluntarily rescinded by mutual agreement, and plaintiff thereupon entered into the following written agreement to sell the lot to one Bertie Ritter, a sister of defendant, who was then living on the property with defendant:

Springfield, Mo., June 15, 1906.
This Agreement, Witnessed: That A. M. Gray has this day contracted with Bertie S. Ritter to sell to her Lot 12, in Forest Home Addition to the City of Springfield, Mo., on the following terms and conditions': Ten dollars cash, the receipt of which is hereby acknowledged, and $136.45, to be paid in monthly payments of five dollars on or before the 15th day of each succeeding month, together with seven per cent interest, to be paid annually, on all deferred payments. It is hereby agreed that when payments amounting to one-half the amount of this contract shall have been made, and in accordance thereto, then A. M. Gray, his heirs, assigns or executors, shall -furnish an abstract showing a good title, together with a warranty deed, to said Lot 12, and take in lieu thereof notes for the portion, as per terms herein 'stated, secured by a deed of trust on the said Lot 12, Bertie S. Ritter hereby agreeing to pay all taxes for the year 1906 and thereafter. It is fully understood by both parties hereto that should the payments at any time prior to the execution of deed and deed of trust he not paid as per terms herein named, then all moneys paid shall he considered as rentals for said premises, and Bertie S. Ritter agrees to give peaceable possession thereto on demand of A. M. Gray, his heirs, assigns or executor.
Witness our- hands and seals, the day above written.
A. M. Guay,
Bertie S. Ritter.
Witness to signatures: J. B. Easley.

It will be observed tbat by tbe foregoing contract Miss Ritter was given tbe right to acquire tbe lot in controversy by paying tbe balance of tbe purchase price which defendant originally contracted to pay.

Miss Ritter made her payments on tbe lot regularly until February, 1907, paying to plaintiff altogether $47.62, when she became sick and defaulted in her payments.

On March 23, 1907, in response to a letter from Miss Ritter announcing her sickness and inability to make® her payments on tbe lot as they fell due, plaintiff wrote, her as follows: .

Miss Bertie Ritter:
Yours rec. Pay when you can & it will be all right.
A. M. Gray.

On June 17, 1907, plaintiff sent Miss Ritter tbe following statement:

Yours of 12 inst. rec.
June 16 — there is 6 payments due .$25.00
” ’’ —interest on deferred payments due . 7.40
Yours truly,
$32.40
A. M. Gray.

Plaintiff testified that in June, 1907, he called on Miss Eitter and told her in the presence of defendant that she must make the payments or he would have to break the contract. He further testified as follows:

“Q. Then she and her father came to your store to see you about making payments ? A. To see about making the payments.
“Q. Didn’t they come there to talk about paying it all up and didn’t they tell you they had the money for you1? A. She came to the store the first time—
“Q. I say when she and her father came? A. No, sir.
“Q. They did not come to pay the money? A. They came there and said they would get the money after I had told them that I was not going to wait any longer; that I wanted the property.
“Q. They told you they would get the balance of the money and pay you, didn’t they? A. Yes, sir.
“Q. You told them then you would not take it? A. I wouldn’t take it.
“Q. And then in a few days, perhaps the same day, I came to your store with the money and the deed to the place? A. Yes.
“Q. And offered you the balance due? A. Yes, sir.
“Q. And you refused to take it? A. Yes, sir.”

The exact date when the attorney for Miss Eitter offered to pay plaintiff the balance due on the lot is not made clear by the evidence. Miss Eitter was dead at the time of the trial. Her father testified that it was in the month of July, 1907, probably near the first of that month.

After refusing to accept the balance of the purchase money due on the lot in controversy, plaintiff instituted a suit in the circuit court to recover possession of the lot, but that suit was dismissed for reasons explained by plaintiff, as follows:

“Q. Then after tliat you instituted this suit that was dismissed in the circuit court here? A. Yes, sir.
“Q. Now, that case that was dissmissed in the circuit court, it was understood and agreed that yon were to make a deed is the reason that case was dismissed? A. The reason that case was dismissed was upon-advice of my counsel and yourself that morally I was under obligation—
“Q. That was the understanding, that you was to make a deed? A. Yes, sir.”

Plaintiff’s evidence further shows that about ten days after the suit was dismissed the defendant, through her attorney, tendered to plaintiff the balance due on the lot and plaintiff refused the same, and refused to malee her.a deed for the following reasons: (1) The costs of the suit had not been paid. (2) The tender was not made the day the suit was dismissed, or the day thereafter, • which plaintiff contended was the time given defendant to make the payment. (3) Because plaintiff was under a contract to convey the lot to Miss Bitter and not to defendant. Plaintiff’s evidence tends to prove that the defendant agreed to pay the costs of the suit that was dismissed, and that she failed to pay said costs.

In December, 1907, Miss Bitter conveyed to defendant all her interest in the lot in controversy. About one month thereafter she died.

The defendant’s version of the interview between plaintiff and Miss Bitter when the plaintiff called at her home is as .follows:

“Q. While your sister was gone to Iowa you remained in possession of these premises? ,A. Yes, sir.
“Q. Do you remember when she returned? A. July 3d of last year.
“Q. Did you see Mr. Dr ay on that day? A. Yes, sir.
“Q. Where? A. He stopped at the house.
“Q. You and yonr sister were .there? A. Yes, sir. - ■
“Q. What conversation did he have there with yon folks in regard to the payment? A. He stopped there, and I- told my sister Mr. G-ray was ont there, and I says, ‘I expect he wants to see yon.’ She went to the door and so did I, and she stepped outside and so did I. We both stepped outside and he remained at the side of his buggy, and she told him she would get the money if she was able, but she said she was not able to work and did not know when she would be able. He says, ‘That is all right,’ and that is all that was said.
“Q. Hid he or not tell her then that he wanted the money on the place? A. He did say so.
“Q. -Did he tell her he did not want the money, but wanted the place? A. He says, ‘It is all right.’ She told him she would get the money if she could. She says, ‘I am not able to work and don’t know when I will be.’ He says, ‘You do look bad.’ She says, ‘I am sick,’ and he'says, ‘You’re looking bad.’ He says, ‘That is all right,’ and that is all he said.”

The plaintiff’s evidence indicates that after the dismissal of the first suit nothing further was done by him towards securing possession of the lot in controversy until April 9, 1908, when he instituted an action of unlawful detainer against defendant. That action, however, was dismissed by the justice on the alleged ground that plaintiff failed to prosecute same with diligence.

On April 20, 1908, the plaintiff instituted this action of ejectment against defendant for the possession of the lot in controversy. Defendant filed her answer setting up the purchase of the property by her sister, Miss Ritter, the tender of the purchase money to plaintiff by Miss Ritter’s attorney and plaintiff’s refusal to accept same; the conveyance from Miss Ritter to defendant, and again offered to pay the balance of the purchase money due defendant and prayed for equitable relief.

The court gave judgment for plaintiff for one cent damages and possession of the property, whereupon defendant appealed.

OPINION.

Prom the foregoing facts it is apparent that Miss Bitter, and also defendant as her grantee, failed to make the monthly payments on the lot in controversy according to the contract of June 15, 1906. the only issue in the case is: Did plaintiff waive his right to forfeit the contract and apply the payments already made as rents on the property, and if such waiver was made was it in force about July 1, 1907, when plaintiff admits that Miss Ritter’s attorney tendered him the balance due?

We think the alleged oral agreement to make a deed, entered into at the time the first suit was dismissed, may properly be left out of view altogether. If plaintiff had been tendered all that was due him, at a time when he did not possess the right to forfeit the contract and retake possession of the property, and had refused ■ to receive the balance of the purchase money under, those circumstances, then said first suit was improvidently brought and the plaintiff was responsible for the costs therein. An oral contract between the parties regarding its dismissal, for which ■there was no consideration, would not change their situation. There is no doubt but what plaintiff possessed the right to forfeit the contract when the February, 1907, installment of the purchase money became ■due; likewise when the.March installment became due, but instead of declaring the contract forfeited and demanding possession, when default was made in those payments lie wrote Miss Ritter: “Pay when yon can and it will be all right. ’ ’■ This was a strong unconditional waiver of his right to forfeit the contract, both as to the payments then due and also such as might thereafter accrue, except upon a notice from him setting some other date for forfeiture of the contract. In 39 Cyc., at page 1382, the law is announced as follows :

“While the vendor cannot rescind the contract of sale before default the right to rescind or forfeit the contract for default in performance by the purchaser must be exercised promptly or it will be deemed to be waived. ’ ’

The failure of the vendor to exercise his right of forfeiture when Miss Ritter defaulted in the first payment, or the second payment, did not deprive him of the right to forfeit the contract on account of the non- payment of any subsequent installment of the purchase money. But in view of his letter informing her that she could pay any time she was able, we think the circumstances of the case required him to revoke his waiver by fixing some other definite time when she would be required to make the payments for which she was in default before bringing suit for possession.

The case of Tetley v. McElmurry, 201 Mo. 382, was an action of the same nature as this, but upon facts somewhat different. In that case, at. page 394, our present Chief Justice announced the rule governing forfeitures in the following language:

“Forfeitures are abhorred, not favored, in equity. It has been said that courts of equity do not lend their aid to enforce them; at least, that courts of equity are slow to enforce forfeitures and will (if that construction be at all permissible) so construe a contract as to preserve rather than to disturb, a party’s rights; that good conscience is the beacon light which points the way out of a forfeiture; that while provisions for forfeitures should not be abrogated, yet they should be strictly construed, and never helped out by implication. ’ ’

There can be no reasonable doubt that the plaintiff’s letter telling Miss Ritter that she could pay when she could and it would be all right was a very broad waiver, such as to lead her to believe that she would not be dealt with harshly for failure to meet subsequent payments.

The plaintiff testified that he orally notified Miss Ritter when he called at her house in June, 1907, that “she,must make the payments up or he would have to break the contract.”

Defendant was present on that occasion and denies that plaintiff made any such statement at that time. The statement which plaintiff sent to Miss Rit-ter on June 17th tends to corroborate the defendant, for the reason that that statement was furnished in reply to an inquiry by Miss Ritter, and it merely states the amount due, without containing even a request that the same be paid. 'Not one word is said in that statement about a forfeiture. If, when that statement was sent, plaintiff had decided that he would not wait any longer for the payments then due it would have been very natural for him to have demanded that the amount due be paid without further delay.

The first -entirely satisfactory evidence we have of the plaintiff’s intention to forfeit the contract is when Miss Ritter and her father called on him at his store in July, 1907, at which time he did inform them that the contract was already forfeited, and that he would not take the money. In view of plaintiff’s prior waiver this pretended forfeiture was too sudden and unconditional. Plaintiff admits that following this interview at his store Miss Ritter, on the same day or a day or two thereafter, tendered him, through her attorney, all that was due on the contract.

There does not seem to be any hard and fast rule as to what will justify a forfeiture of a contract of purchase. In 39 Cyc., at page 1370, the following rule is announced:

“So, although there is no stipulation of the parties that time shall he of the essence of the contract, nor anything in the mature or circumstances of the agreement to make it so, yet it may be made essential by the proper action of a party not in default and ready to perform, if the other party is in default. Thus, if the purchaser, without excuse, fails to pay at the stipulated time, the vendor, being in no default, and able and ready to perform all then required of him by the contract, may notify the purchaser to pay within a reasonable time, or he, the vendor, will treat the contract as rescinded. The notice,, however, to be effectual for the purpose must not be such as to work a surprise upon the opposite partyj but must give him a fair opportunity to protect himself and comply with it.”

The facts disclosed by plaintiff’s letters, and by his own evidence, show that after default was made in the payment of the monthly installments he failed to give Miss Ritter, the grantor of defendant, notice of any definite date when he would forfeit the contract if she failed to meet payments. According to his testimony he simply called on Miss Ritter and told her she would have to make the payments or he would break the contract, without fixing any definite date when the payments should be made.

The evidence in this case shows that plaintiff was a merchant in Springfield, and that Miss Ritter and defendant were poor and ignorant, earning the money with which they paid more than half the purchase price of this lot by washing and other menial labor. It is true that poor people must comply with their contracts the same as those who- are more fortunately situated; but in forfeiting contracts for nonperform-anee the situation of the parties and the degree of their intelligence should never be entirely ignored; and the peculiar facts in this case demanded that the plaintiff, before forfeiting the contract, should have fixed a new date for doing so, and have notified Miss Rit-ter of his intention, to forfeit the contract and treat the payments already made, as rents on the property. We are not unmindful of the fact that the plaintiff was exceedingly lenient with defendant and her sister and suffered the payments to lapse for a period of five months, but if he had notified them that he would forfeit the contract on a certain date, instead of informing Miss Ritter that she could have practically all the time she needed, she could doubtless have sold her equity in the property, and thereby have protected herself; or she could have borrowed the money to meet the deferred payments by giving a mortgage on the property. It stands-proven by the plaintiff’s own evidence that very soon after he notified her that he would not wait'any longer she made arrangements to meet all the deferred payments and caused the same to be tendered to plaintiff by her attorney. He had not at that time brought any suit, and simple equity demanded that he should have accepted the purchase money and interest when it was tendered, and given her a deed. It appears by the evidence that, after the ineffectual effort of Miss Ritter to close up the contract by tendering the balance of the purchase money about July 1, 1907, the plaintiff prosecuted two unsuccessful suits against her, but we are unable to see how that places her, or the defendant as her grantee, in any more unfavorable position than she was on the day the balance of the purchase money was tendered. Neither Miss Ritter nor the defendant were required to pursue the plaintiff from day to day with the purchase money in hand; but it was his duty at all times, after he refused to accept the balance due, to tender a deed and demand payment of the remainder dne before bringing suit for possession. In 39 Oyc. 1372, tbe following rule of law is announced:

“Where the vendor tenders a deed and demands payment when it is dne and payable, and the purchaser fails or refuses to pay the purchase money, the vendor may elect tó declare the sale rescinded.”

The mere tender of the balance of the purchase money by Miss Ritter through her attorney did not pay the debt, but we think it relieved her of the duty of making any further tender out of court, and also from the payment of interest. [Deichmann v. Deichmann, 49 Mo. 107; McGuire v. Brockman, 58 Mo. App. 307.; Ruppel v. Building Association, 158 Mo. 613.]

We find that-the ends of justice will be subserved by reversing the judgment of the trial court and directing it to enter a judgment divesting the plaintiff of title to the town lot in controversy, and investing said title in defendant; provided she shall, in pursuance of her tender heretofore made, deposit with the clerk of the circuit court of Greene county, Missouri, within twenty days after the filing of this mandate with said clerk, the amount of principal and interest which she owed plaintiff on July 1, 1907; said deposit when so made to be paid to the plaintiff on demand.. It is so ordered.

Faris and Walker, 'JJ., concur.


source: Caselaw Access Project

author: WILLIAMS, C. PER' CURIAM.

license: Public Domain

text:
    PRAIRIE SLOUCH FISHING & HUNTING CLUB v. WILLIAM P. and LENA KESSLER, Appellants.
    Division Two,
    October 14, 1913.
    1.CORPORATIONS: Powers: Express and Implied. When the organic or statutory law specifies the powers a corporation may exercise, or the property it may hold, such specification excludes by implication all other powers or rights, except such incidental or subordinate rights and powers as may be necessary to an exercise of the powers and rights expressly given.
    2. -: -: -: Fishing and Hunting Club: Title to Real Estate. A fishing and hunting club incorporated under Art. 11, Chap. 12, R. S. 1899 (now Art. 10, Chap. 33, R. S. 1909), authorizing incorporation for benevolent, religious, scientific or educational purposes only, has not the power to hold 426 acres of land, fit partly for agriculture and partly for hunting and fishing. And the fact that the club’s articles of agreement enumerated purposes other than benevolent, religious, scientific or educational could not operate to give the corporation power to acquire real estate for such additional purposes. [Sec. 1406, R. S. 1899, in so far as it enlarges upon the purposes designated by article 11, supra, has been declared unconstitutional and was omitted from the revision of 1909.]
    3. -: Ultra Vires: Attempt to Perfect Title to Land: Not Aided in Equity: Defense Available by Party. Where the trial court has divested the legal title to real estate out of the defendants and vested it in the corporation plaintiff, on the.theory that defendants held as trustees under a constructive trust for the plaintiff, and it appears upon appeal that for the plaintiff to hold such land would be a transgression of its corporate powers, it is held, that the case must be reversed and remanded. Equity will not lend its aid to cause a conveyance to a corporation of that which, under its charter, it is not permitted to hold and such defense is available to an interested individual (as here) as well as to the State.
    Appeal from Lincoln Circuit Court. — Eon. James D. Barnett, Judge.
    REVERSED AND REMANDED.

      B. L. Sutton and John B. Dempsey for appellants.
    ■ (1) Under the statute the plaintiff is empowered to acquire and hold such real estate and buildings only as may he necessary for assembly, library, laboratory and other rooms requisite for its purposes. Sec. 3443, R. S. 1909; Sec. 1405, R. S. 1899; Sec. 2833, R. S. 1889; Sec. 982, R. S. 1879. The enumeration of the hind and quantity of property which a corporation created under this statute may acquire, by all constructions of statutes, is an exclusion of the right to hold any other or for any other purpose. State ex rel. v. Trust Co., 144 Mo. 562; Railroad v. Clark, 53 Mo. 214; Carroll v. Campbell, 108 Mo. 559; St. Louis v. Russell, 9 Mo. 507; Kugglis v. Collin, 43 Mo. 353; State ex rel. v. Murphy, 130 Mo. 10; Bank y. Young, 37 Mo. 398; Doty v. Tel. & Tel. Co., 123 Tenn. 329. The incorporation of associations under the provisions of Art. 11, Chap. 12, R. S. 1899 (Art. 10, Chap. 33, R( S. 1909) is not authorized except for benevolent, religious, scientific or'educational purposes, and the right of such associations to acquire and hold large bodies of farm lands is not granted either by express words or by implication, but on the contrary such right is clearly excluded. Sec. 21, art. 10, Constitution; Secs. 3432, 3435, 3439, 3443, R. S. 1909; State ex rel. v. Lesueur, 99 M!o. 558; 5 Thomp. Private Corp., secu 5772; Railroad v. Seely, 45 Mo. 212¿ G-oodland v. Bank, 93 Mo. App. 195; St. Louis v. Railroad, 13 Mo. App. 530; Carondelet v. Pecot, 38 Mo. 128; St. Joseph v. Saville, 39 Mo. 460; Ruggles v. Collier, 43 Mo. 375; Dorton v. Hearn, 46 Mo. 301; Sec. 1406, R. S. 1899 (Sec. 2834, R. S. 1889), authorizing the incorporation of societies for the. promotion of boating, field sports, and other rational amusements, was held unconstitutional and void, and was omitted from the revision of 1909. State ex rel. v. Lesueur, 99 Mo. 558. It seems to be well settled in this State that a corporation created for one purpose or with authority to do a particular thing cannot go further than the purpose and power expressed in its charter or necessary to carry out such purpose and authority. Blair v. Ins. Co., 10 Mo. 559; Hoogland v. Railroad, 39 Mo. 451; Railroad v. Seely, 45 Mo.- 212; St. Louis v. Gaslight Co., 70 Mo. 69; Carondelet v. Pecot, 38 Mo. 128; Rug-gles v. Collier, 43 Mo. 375; Dorton v. Hearn, 67 Mo. 302; St. Joseph v. Saville, 39 Mo. 466; Ferry Co. v. Railroad, 128 Mo. 247; St. Louis v. Gas Light Co., 5 Mo. App. 530; Railroad v. Dameron, 4 Mo. App. 418 ; St. Louis y. Railroad, 13 Mo. App. 530; Goodland v. Bank, 74 Mo. App. 369; Chenowith v. Express Co., 93 Mo. App. 195.; Police Assn. v. Teerney, 116 Mo. App. 460; 5 Thompson on Private Corporation, sec. 5772. The defense of ultra vires may be made by a private individual in case of this character. It is only in ease of executed contract that such defense is not permissible. Land v. Coffman, 50 Mo. 243; Dairy Co. v. Mooney, 41 Mo. App. 673; Garrett v. Mining Co., 113 Mo. 339; Chenowith v. Express Co., 93 Mo. App. 195 ; 5 Thompson on Private Corporations, sec. 5800; 10 Cyc. 1135; Case v. Kelley, 133 U. S: 21.

      B. H. Norton and Charles W. Bates for respondent.
    (1) The club was properly incorporated for the purposes specified in its charter. Constitution, art. 10, sec. 21; R. S. 1909, sec. 3435; R. S. 1899, sec. 1397; State ex rel. v. Lesueur, 99 Mo. 552. (2) The club had lawful authority and power to acquire and hold the land for its corporate purposes. Constitution, art. 12, sec. 7; R. S. 1909, sec. 3443; R. S. 1909, sec. 2990, par. 4'; Club v. Finley, 53 Mo. App. 256. (3) Appellant will not be heard to question the right of the respondent, under its charter, to hold lands. “This question can be raised by the State alone.” Hall v. Bank. 145 Mp, 418; Summet v. Brokerage, 208 Mo. 501; Bank v. Mathews, 98 U. S. 621; Bank v. Poiteaux, 3 Rand. (Va.) 136; Martindale v. Railroad, 60 Mo. 580; Kinealy v. Railroad, 69 Mo. 658; Hovelman v. Railroad, 79 Mo; 632; State v. Trust Co., 157 Mo. App. 557; Benevolent Society v. Murray, 145 Mo. 622; Drug Co. v. Robinson, 81 Mo. 18. Appellant is estopped to deny the legal authority of the respondent to hold the lands in question. ' Yette v. deist, 155 Mo. 27.
   WILLIAMS, C.

In this suit plaintiff, proceeding on the theory of a constructive trust, seeks to have a court of equity declare a trust in favor of plaintiff with reference to approximately 426 acres of land situated in Lincoln county, Missouri, and hy its decree to divest the title thereto out of defendants (the holders of the legal title), and vest the same in the plaintiff corporation, upon plaintiff’s reimbursement to de--fendants of the amount paid by them for said land, and to compel defendants to account to plaintiff for the crops and rents received from said land.

The plaintiff is a corporation organized under the provisions of article 11, chapter 12, Revised Statutes 1899 (article 10, chapter 33, Revised Statutes 1909), hy pro forma decree of the circuit court of the city of St. Louis, on December 4, 1900. A short time after the corporation was organized it acquired a ten-year lease on the land in controversy, whereby the company and its members-were given the absolute and exclusive right and privilege to hunt and fish upon said land, and the right to erect a clubhouse, outbuildings and fences upon a two-acre portion thereof. At this time the land in controversy was owned by Fred Naxera and Edward H. Knight. The clubhouse was erected and the land leased was enjoyed by the corporation members as a place to hunt and fish. In 1906 defendant William P. Kessler was elected president of the plaintiff corporation, and served as such president until the latter part of 1908, During the time he was president of the club there was considerable discussion of the club’s future among the members thereof, and of the propriety of procuring a renewal of the lease or purchasing the land outright. No formal action with reference to the matter was taken at any of the meetings of the board of directors, but some of the members testified that they discussed the matter with the president, William P. Kessler, and that he assured them he would look after the matter for the club and would try to get an option on the land for the club with a view to its purchase by the corporation. Later the said defendant procured an option from the landowners, taking the option in his own name, and informed some of the members of the corporation that he had procured an option for the “club.” In October, 1907, defendant closed the deal for the purchase of the land, and had the owners of the land convey the same to himself and wife, his codefendant herein. The purchase price was $6500, defendants paying $500 in cash, and executing their note, secured by deed of trust on the land, for $6000, due ten years after date, also separate notes for interest at eight per cent on said sum.

The testimony on the part of the plaintiff is that its members were not aware of this transaction until some time in July, 1908, when, at a meeting of the members of the corporation, Kessler submitted a proposition to the club, through its secretary, to the effect that he would sell the land "to the club at a certain stipulated price, but that he would not renew the lease. A committee was appointed by plaintiff to investigate the matter, and upon investigation.it was learned that the price asked was approximately six dollars an acre in excess of that paid by defendant for the property. A short time thereafter this suit was instituted, resulting in a decree for plaintiff as prayed.

Further facts necessary to a fuller understanding of the case are set forth in the interlocutory decree of the circuit court, which decree, omitting formal parts, is as follows: ¿

“Now at this day, at the March adjourned term of the circuit court of Lincoln county, Missouri, come again the parties to this suit, both plaintiff and defendants, by themselves and by their respective counsel, and all and singular the matters and things heretofore submitted to the court and taken under advisement, having been seen, heard and considered, the court doth find that the plaintiff, the Prairie Slough Pishing and Hunting Club, is a corporation organized under and by virtue of the provisions of article 11, chapter 12, Revised Statutes of Missouri, 1899; that the defendants, William P. Kessler and Lena Kessler, are husband and wife; that on the 1st day of August, 1900, a certain lease was. executed by Fred Naxera and Edward IT. Knight, and their respective wives, to one Adolph Vogler; that said lease covered the lands mentioned in plaintiff’s petition, and described as follows: [Here follows description of said real estate.] That said lease ran for a term of ten years, and until the 31st day of July, 1910, and that the yearly rental as fixed in said lease was the sum of fifty dollars per year. It is further found by the court that under and by virtue of the terms of said lease it was provided that a frame building for residence and clubhouse purposes, outbuildings and fences, should be erected on said premises by the lessee thereof, to cost at least one thousand dollars. That shortly after the execution of said lease said Vogler transferred and assigned all his right, title and interest in said lease to the plaintiff, the Prairie Slough Pishing and Hunting Club, and that said Vogler, when he secured said lease from said Knight and Naxera, was acting for and on behalf of the plaintiff in securing said lease, and the same was taken for and on behalf of said club by-said Vogler. The court further finds that the terms of said lease have in all respects been complied with by the plaintiff, and that the improvements have been erected by the plaintiff as provided for in the terms of said lease. The court further finds that the defendant, ¥m. P. Kessler, on the . . . day of ... , 1906, was a member of the board of directors of said Prairie Slough Fishing and Hunting Club, and at said time was duly elected the president of said'club, and was re-elected for the year 1907, and that he assumed the duties of said office as president, and occupied the said position during the .years 1906 and 1907, and at all times mentioned in plaintiff’s bill. The court further finds that said plaintiff, through its members, and that various members of such corporation, for themselves as such members and for said club, as early as the fall'of 1906, and at frequent times in the year 1907, informed said Kessler, while president of said club, that it was desirable on the part óf plaintiff and its members to acquire the property mentioned and described in said lease and on which the said corporation had erected its clubhouse and other substantial improvements, costing more than the sum of one thousánd dollars, and to purchase the same. That said Kessler, while acting as president, agreed with said members and promised them that he would purchase said property for the use and benefit‘of said club. That said defendant ¥m. P. Kessler, while acting as president of said club, negotiated for the purchase of said property from Knight and Naxera the owners thereof, and that on the . . . day of . . ., 1907, he procured the said-Knight and Naxera, owners of said land, to execute to him and his wife, his co-defendant, Lena Kessler, a warranty deed for all of said lands, at and for the price and sum of sixty-five hundred dollars. The court finds that the entire negotiations concerning the purchase of said lands were conducted by said ¥m. P. Kessler alone; that said negotiations and the transfer of said property were kept secret from plaintiff and from the members of said organization, and that said Lena Kessler, wife of Wm. P. Kessler, contributed nothing toward the purchase of said property, hut all moneys that were paid were paid out of the funds of Wm. P. Kess-ler alone. The court further finds that Wm. P. Kess-ler paid to said Knight and Naxera the sum of five hundred dollars in cash, and executed a note for the sum of six thousand dollars, dated October 18, 1907, p.ayable in ten years after date, with interest thereon from its maturity at the rate of eight per cent per annum, and also twenty semiannual interest notes, each for the sum of one hundred eighty dollars, the first maturing in six months after date, and the last maturing in one hundred twenty months after date, and that said defendants Wm. P. Kessler and Lena Kessler executed their deed of trust on said lands to said Naxera and Knight to secure the payment of said note's. That under and by virtue of the terms of said deed of trust the defendants were permitted to pay sums of $300 or multiple of said amount at any interest-paying period, that is, at the end of any six months, and to discharge the indebtedness, including the interest, to that extent. That said notes for six thousand dollars and said five hundred dollars cash constituted the whole and entire consideration for the purchase price of said lands, and that said five hundred dollars in cash and the execution of said principal note, with interest notes, constituted the entire consideration, and was all that was paid or given by said defendants for said lands. That since the execution of said deed,- the defendant, Wm. P. Kessler, has paid and discharged two .of said interest notes, amounting to the sum of one hundred eighty dollars each, and that he has expended in repairing the buildings and in making improvements on said lands the sum of two hundred seventy-six and 65-100 dollars; that the plaintiffs have paid one' installment of rent amounting to the sum of fifty-six dollars, and that same was received and appropriated by said defendant, Wm. P. Kessler, and that said defendants, Kess-ler and wife,, claim said property as their own by virtue of said purchase. All things considered, it is fonnd by the court that the defendant, Wm. P. Kessler, occupying the fiduciary relation of president of said Prairie Slough Pishing and Hunting Club, in acquiring the title to said property for himself and his wife, was not acting in good faith, but in fraud to said club and its members, and that in equity and good conscience it should be decreed that he and his codefendant, Lena Kessler, held the said property in trust for the plaintiff.
“It is therefore ordered, adjudged and decreed that the title to said property be divested from the defendants, Wm. P. Kessler and Lena Kessler, and vested in the plaintiff, the Prairie Slough Pishing and Hunting Club, on condition, however, that the said plaintiff, the Prairie Slough Pishing and Hunting Club, on or before the 18th day of October, 1909, reimburse said Wm. P. Kessler and repay to him the sum of five hundred dollars, paid by said Kessler on the purchase price of said lands, and repay to him the sum of two hundred seventy-six and 65-100 dollars, the amount expended by him in improvements on said lands, and also repay to him the sum of three hundred sixty dollars paid by said Kessler on said interest notes, less, however, the sum of fifty-six dollars received by said Kessler as rent on said property under the terms of said lease. It is further ordered by the court that all unpaid rents' accruing during the year 1909 and subsequent shall belong to the plaintiff. It is therefore ordered, adjudged and decreed by the court that the plaintiff, the Prairie Slough Pishing and Hunting Club, take up so as to release therefrom the defendants, Wm. P. Kessler and Lena Kessler, the said six thousand dollar note and the said interest notes executed by Kessler and wife to Naxera and Knight, so as to relieve and release said Wm. P. Kess-ler and Lena Kessler from all liability thereon, and that on compliance with said order by said plaintiff that the title to said lands vest in plaintiff as heretofore decreed by the court. And it is ordered by the court that plaintiff make due report as to its compliance with this order on the first day of the next regular term, to-wit, the October term, 1909. It is further ordered, adjudged and decreed by the court that all costs of this proceeding be taxed against the defendants, and that plaintiff have execution therefor on the payment and discharge by it of the principal note and the interest notes and the cash items here-inbefore set forth.”

The plaintiff showed compliance with the requirements of the interlocutory decree, and presented to the court the notes given in payment of the purchase price by defendants, said notes containing indorsements thereon to the effect that defendants were released from all further liability thereon, and further deposited in court, for the benefit of said William P. Kessler, as required by the interlocutory decree, the sum of $1080.65, and thereupon the interlocutory decree was made final and absolute, and the title to said land was divested out of defendants and vested in plaintiff. In due time defendants perfected an appeal to this court.

OPINION.

Appellants first contend that the plaintiff corporation has no right or power to acquire the land in question, and that therefore the court erred in divesting the title to said land out of defendants and vesting the same in' plaintiff. Respondent takes the position that it does have the right and power to acquire the said land, and furthermore, that the question cannot be raised by appellants, but by the State alone-in a proper proceeding. These two propositions will be treated in their order.

It is a well-settled rule that when the organic or statutory law specifies the powers a given corporation may exercise, or the property it may hold, such speci fication by implication excludes all other Powers or rights, except such incidental or subordinate rights and powers as may be necessary to an exercise of the powers and rights expressly given. [Blair v. Insurance Co., 10 Mo. 559; Pacific R. R. Co. v. Seely, 45 Mo. 212; State ex inf. v. Lincoln Trust Co., 144 Mo. 562; Carroll v. Campbell, 108 Mo. 559; State ex rel. v. Murphy, 130 Mo. 10; 1 Clark & Marshall on Private Corp., p. 380; 3 Thompson on Corp. (2 Ed.), sec. 2771; Case v. Kelly, 133 U. S. 21.]

The above rule seems also to have found lodgment in our statutory law with reference to the real estate corporations may hold. Section 2990, Eevised Statutes 1909, defining and enumerating corporate powers' generally, provides in the fourth subdivisión thereof that corporations may hold such real estate as the purposes of the corporation shall require, “not exceeding the. amount limited in its charter or the law creating it.” The respondent corporation was organized under and by virtue of article 11, chapter 12, Eevised Statutes 1899 (now article 10', chapter 33, Eevised Statutes 1909). Incorporation under that statute is not authorized except for purposes be-A x nevolent, religious, scientific or educational. By section 3433 of said article 10 (E. S. 1909), it is provided that any such corporation, when organized for the above purposes, “may acquire and hold in its own name such real estate and buildings as may be necessary for assembly, library, laboratory and other rooms requisite for its purposes, and may receive income from such other’ rooms as may be requisite to the completeness of such buildings.” The quoted portion was added to said section by an act approved March 30, 18g7_ [Lawg 1887> p> 115>] prior to that amendment such corporations were only permitted to acquire and bold shares of stock in a corporation incorporated pursuant to law for the “sole purpose of erecting or purchasing a hall or building for the use and benefit of any one or more of such corporations.”

Respondent’s articles of agreement set forth the purposes of its incorporation as follows:

“The purposes of this corporation are benevolent, scientific and educational'; they are to promote fish culture, to promote and facilitate fishing and hunting, boating, field sports and other rational amusements, and to promote and provide for intellectual recreation for its members and guests, and to' acquire or leage such lakes and lands and other property as are necessary for such purposes.”

The articles of agreement apparently intended to also embrace the purposes enumerated in section 1406, Revised Statutes 1899; but said section, in so far it enlarges upon the purposes designated as benevolent, religious, scientific or educational, was declared unconstitutional in State ex rel. v. Lesueur, 99 Mo. 1. c. 558, and it was omitted from the revision of 1909. The fact that respondent’s articles of agreement enumerated purposes other than benevolent, religious, scientific or educational, could in no way operate to give it power to acquire real estate for such additional purposes. The reason why the Legislature thus limits the power of such corporations to acquire real estate becomes apparent when it is recalled that associations incorporating under this article are permitted to do so without making payment of the incorporation fees or taxes exacted of manufacturing and business corporations. If such corporations were given the power to acquire real estate without restriction, it might lead to many abuses, and many such corporations might become holders of large tracts of land, and operate for pecuniary benefit — a thing' which the Legislature doubtless foresaw and undértook to prevent.

The large tract of land in controversy here consists of portions fit for hunting and fishing purposes, and other portions suitable for agricultural purposes, and it was clearly not necessary that the corporation acquire the same for assembly, library, laboratory, etc., uses in connection with any benevolent, religious, scien • tifie or educational purpose which it might have, and it was not therefore such as the respondent was empowered to acquire and hold. But respondent insists that this point can be taken advantage of by the State alone in an appropriate proceeding, and that such defense cannot be invoked by appellants. It is true that an unwarranted exercise of corporate power ordinarily cannot be questioned in a collateral or indirect way by an individual. A careful review of the authorities, however, discloses that this rule is applied to situations quite different from the present one. After the corporation has transgressed its powers and acquired the property, then the general rule above referred to prevails, but where, as here, the corporation has not yet acquired the property, a court of equity will not lend its aid and power to cause to be conveyed to the corporation that which by its charter law it is not permitted to hold, and such a defense is available to an interested individual. [Pacific R. R. Co. v. Seely, 45 Mo. 212; Land v. Coffman, 50 Mo. 243; Garrett v. Kansas City Coal Mining Co., 113 Mo. 1. c. 339; 10 Cyc., 1135; Case v. Kelly, 113 U. S. 21; South, Etc., R. R. Co. v. Railroad, 119 Ala. 105; 4 Clark & Marshall, Private Corp., sec. 230, p. 254; 3 Thompson on Corporations (2 Ed.), sec. 2393.]

In the case of Garrett v. Kansas City Coal Mining Co., supra, the court, discussing an analogous situation, says:

“Neither are we embarrassed in this case with questions of estoppel which might arise were we dealing with an unauthorized and ultra vires contract which had already been executed by the corporation and stockholders. Here we are asked to require the corporation to perform an executory contract between others which it would have no authority itself to make. This we cannot do.”

In Case v. Kelly, supra, the receiver of a railroad company by suit similar to this, sought to recover from the defendants certain lands which they, as officials of the company, had received from divers persons as donations for the company, title having been taken in their individual names. The court, in denying relief, says:

“It is objected to the principle adopted by the court that the limitation upon the power of the corporation to receive land is one which concerns the State alone, and the title to such lands in a corporation can only be defeated by a proceeding in the nature of a quo warranto on behalf of the State. . . . The railroad company is plaintiff in this action, and is seeking to obtain the title to such lands. It has no authority by the statute to receive such title and to own such lands, and the question here is, not whether the courts would deprive it of such lands if they had been conveyed to it, but whether they will aid it to violate the law and obtain a title which it has no power to hold. We think the questions are very different ones, and that while a court might hesitate to declare the title to lands received already, and in the possession and ownership of the company, void on the principle that they had no authority to take such lands, it is very clear that it will not make itself the active agent in behalf of the company in violating the law and enabling the company to do that which the law forbids.” (L. c. 28.)

The rule is stated by Mr. Thompson as follows:

“A corporation cannot compel the specific performance of a contract to convey land to it where it has no power to take real estate for the purpose stated in the contract; and in such case the owner of the land, or his heirs, may defend on the ground of the incapacity of the corporation. Generally where the corporation seeks the necessary aid of a court to perfect its title, then an interested individual may question the corporation’s power to take the real estate. ... A court of equity will not aid a corporation to acquire land where it is éxpressly or impliedly forbidden so to do either by law or by its charter.” [3 Thompson on Corporations (2 Ed.), sec. 2393.]

By reason of the views above expressed it becomes unnecessary to discuss appellants’ other assignments of error.

The judgment is reversed and the cause remanded.

Boy, G., concurs.

PER' CURIAM.

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All of the judges concur. ■