source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. RICHARD B. STACK v. J. HUGO GRIMM, Judge.
    In Banc,
    January 27, 1912.
    1. HABEAS CORPUS: Issued in Vacation: Writ to Be Signed by Judge. Under the statute (Sec. 2447, R. S. 1909) a writ of ■ habeas corpus issued in vacation of court must be signed by the judge. It is not sufficient if signed by the clerk alone. Said statute is mandatory. A writ issued in vacation if not signed by the judge is void, and should be quashed upon motion.
    2. - — : Divorce: Child: Award to Mother by Court of Another State: Pleading: No allegation of Jurisdiction. The jurisdiction of a court over divorce cases is purely statutory, and there is no presumption that a superior court of another State, which in a divorce suit awarded the custody of a child to its mother, had jurisdiction over the case; hence, where the mother, by her writ of habeas corpus issued in this State, undertakes -to recover the child out of the possession of its father, basing her right thereto upon such decree, allegations in her petition for the writ that the said court granted her a decree of divorce from the child’s father,, and in said decree awarded to her the absolute control and custody of the child, and that she brought the child to Missouri and subsequently the child’s father appeared and enticed, decoyed and kidnapped the child from her, with no allegations in her petition that the court which granted the decree had jurisdiction over the subject-matter and parties to the suit, or that the judgment was “duly given or made,” as the statute (Sec. 1835, R. S. 1909) requires, are not sufficient to authorize the issuance of the writ; and if issued, it should be quashed on the motion of the husband, appearing for that purpose alone. A court of another state exercising jurisdiction in a divorce case is taken and held to be an inferior court of limited jurisdiction, unless there is an averment in appropriate language in the proper pleading that it had jurisdiction in such case.

      3. -: -: -: -: Kidnapped by Father. The father is the natural guardian of a minor child, and entitled to its custody until awarded by a court having jurisdiction to its mother or some other. So that where the court of another State, which granted a divorce to the mother and awarded to her the custody and control of the child, had no jurisdiction to render such a judgment or decree, it is not a crime or wrong for the father to take the child from the mother and carry him beyond the boundaries of the State.
    Prohibition.
    Peremptory writ awarded.

      Ryan & Thompson and Thos. R. Harvey for relator.
    (1) The allegations of the application for the writ of habeas corpus were insufficient to confer jurisdiction upon the court to issue said writ; for the reason that it is not alleged that the court of the State of Washington had jurisdiction to grant, or did duly grant, a decree of divorce and award to the mother the custody of the child which is alleged to be unlawfully detained from her by this relator, its father. The granting of a decree of divorce and the award of custody of a child in said decree, being a matter of statutory jurisdiction solely, and not being in accordance with the course of the common law, the jurisdiction of the court granting such decree will not be presumed, and such court is regarded as one of limited or inferior jurisdiction in such causes. 2 Bishop, Mar. Div. & Sep., sec. 1162. But an attempt is made in the application for the writ of habeas corpus to allege that the father had been divested of said right of custody and guardianship, and that the same was invested in the petitioner in the habeas corpus, the mother of said child. Said attempt, however, wholly failed to disclose a prima facie showing of her superior right; and the legal effect of said application is the same as if the allegations were simply that she had the child in her custody, and that the father had taken it from her into his custody. (2) At common law the jurisdiction of divorce rested entirely with the ecclesiastical courts, and in the States of the Union the jurisdiction is, therefore, purely statutory. ' 2 Bishop, Mar., Div. & Sep., secs. 801 and 1185; 1 Bishop, Mar., Div. & Sep., sec. 128. Steele v. Steele, 35 Conn. 48; Hatfield v. Hatfield, 6 D. C. 80-; McGee v. McGee, 10 Ga. 477; Robbins v. Robbins, 140 Mass. 528; Spar-hawk v. Sparhawk, 116 Mass. 315; Higgins v. Sharp, 164 N. Y. 4; Erkenbraeh v. Erkenbrach, 96 N. Y. 456; Brinkley v. Brinkley, 50 N. Y. 184; Olin v. Hungerford, 10 Oh. 268; Northcut v. Lemery, 8 Ore 316; Cast v. Cast, 1 Utah, 112; Le Barron v. Le Barron, 35 Vt. 365. The power to grant a decree of divorce being a statutory and not a common-law power, no presumption of jurisdiction obtains in such a proceeding in any court of any State in the Union; and all courts in exercising jurisdiction in this class of cases are deemed courts of inferior or limited jurisdiction, and, in pleading the judgment of such court, it is absolutely neces'sary to aver its jurisdiction, or, in the language of our. statute, section 1836, R. S. 1909, to allege that the judgment was “duly given or made.” 1 Black on Judgments (2 Ed.), sec. 2; 1 Bailey on Juris., sec. 112; 2 Freeman on Judg., sec. 454; 11 Ency. PI. & Pr. 1138; Hunt v. Dutcher, 13 How. Pr. 538; Harmon v. Com-stock Horse, etc., 9 Mont. 243; Weaver v. English, 11 Mont. 84; Boyce v. Brown, 7 Barb. (N. Y.) 84; 2 Black on Judgments, sec. 875; Kelley v. Kelley, 161 Mass. Ill; Hardin v. Hardin, 168 Ind. 352; Bailey v. Martin, 119 Ind. 103<; American, etc., Life Ins. Co. v. Mason, 159 Ind. 15; Gates v. Newman, 18 Ind. App. 392; Ashley y. Laird, 14 Ind. 222, 77 Am. Dec. 67. State ex rel. v. Dobson, 135 Mo. 1, is conclusive upon the proposition that the application in the case at bar for the writ of habeas corpus was insufficient to confer jurisdiction on the circuit court of the city of St. Louis to issue said writ. (3) The alleged writ of habeas corpus was not signed by the official designated by the statute and was therefore nugatory and its service on the relator herein conferred no jurisdiction. Secs. 2442 and 2447, E. S. 1909; 32 Cyc. 440; Ex parte Bethurum, 66 Mo. 553. This requirement that the judge should sign was a departure from the general rule that the clerk should sign the writs instituting actions. Ex parte Joffee, 46 Mo. App. 365; Sutherland on Stat. Const., sec. 140; Wells v. Supervisors, 102 TJ. S. 635; Chandler v. Hann, 83 Ala. 390. “Where the writ is not signed by the officer issuing it, it is void.” 1 Wade on Attachment, sec. 121; Hernandez v. Drake, 81 111. 34; King v. Thompson, 59 Ga. 380; Lindsay v. Kearney County, 56 Kan. 630; Smith & Co. v. Hackley, 44 Mo. App. 614; Hardin v. Lee, 51 Mo. 241; Hargadine v. Van Horn, 72 Mo. 370. The writ of habeas corpus is practically the same as the common-law writ de homine replegianclo or writ of personal replevin. 3 Blackstone, Com. 129; Gurney v. Tufts, 37 Me. 130; State ex rel. v. Barnes, 17 Minn. 340. The method designated by the statute for issuing and serving process must be strictly followed. Smoot v. Judd, 161 Mo. 673; Gage v. Trust Co., 156 Fed. 1002; Westmeyer v. Gallenkamp, 154 Mo. 28; Miners Bank v. Kingston, 204 Mo. 700; 19 ■ Ency. PL & Pr. 614. (4f The relator herein was immune from service of civil process upon him because, at the time of the service of the writ of habeas corpus upon him, he was in the city of St. Louis to answer to an indictment for felony and was actually on trial at the time under said indictment; and relator was not then, and had never been, a resident of the State of Missouri. In re Jewett, 69 Kan. 830; Barranger v. Baum, 103 Ga. 465; State v. Wliitcher, 117 Wis. 668; Kurtz v. Moffitt, 115 H. S. 487; Ex parte Tom Tong, 108 H. S. 556; Ex parte Milligan, 2 Wall. 2; Holmes v. Jennison, 14 Pet. 386; Kline v. Kline, 57 la. 386; State v. Newell, 13 Mont. 302'; Byler v. Jones, 79 Mo. 261.

      B. P. & G. B. Williams for respondent.
    (1) It is insisted that the allegations in the petition for the writ of habeas corp%hs are insufficient to confer jurisdiction upon the court below, because the petition does not set out that the court of Washington had jurisdiction to grant the decree of divorce and the custody of the. child to the petitioner in the court below. .Many _ authorities are cited to establish the point that the jurisdiction of courts in divorce matters is entirely statutory. The power' of a court to award custody of children is not dependent on statute. In re Morgan, 117 Mo. 254. In the first place we insist the judgment or decree of the Washington court is properly • pleaded. Sec. 1836, R. S. 1909; Etz. v. Wheeler, 23 Mo. App. 449; State ex rel. v. Johnson, 78 Mo. App. 573. But aside from this, if the judgment of the Washington court is inartificially pleaded, this would not affect the jurisdiction of the subject-matter of the court below. There is no question but that the court below has jurisdiction of the subject-matter of this litigation. And if the pleadings are defective, or there is a defect in any allegation of the pleadings, any want of proper allegation or otherwise, it is a question that can be determined and should be determined by the court below.' The relator herein did obtain judgment of the court below by filing a motion and plea which tested the sufficiency of the allegations of the petition, and all the other questions raised in the petition herein. We insist that where the petition for a wilt of -habeas corpus shows that the petitioner is properly entitled to the writ, that the sufficiency of the allegations of the petition cannot be inquired into after the writ has been issued, for the obvious reason that the answer of the relator to the return of the respondent may set up any facts which, would tend to show her right to the writ. Of course, if the petition itself showed upon its face that the granting of the writ would result in remanding the party to the custody of respondent, then the court would deny the writ, as was done in the case of Ex parte Roberts, 166 Mo. 207. This court held, in the case of Ex parte Brockman, that the relator could set up any facts in answer to the return additional to those set up in the petition which would justify the issuance of the writ, and such seems to be the holding of the courts generally. We insist that the court having issued the writ, the sufficiency of the petition cannot now be questioned in this case, and that the respondent is in contempt of the court as long as he declines to obey the writ issued by the court. Nebraska Children’s Home v. State, 57 Neb. 765; Simmons v. Coal Co., 61 L. R. A. 736. (2) It is next insisted that the writ was void because it was not signed by the judge who ordered it issued. This claim is predicated upon R. S. ISOS', sec. 2447. The words “out of court” used in this section of the statute mean away-from the court; that is, separation of the judge from the clerk. The authority being lodged in the clerk generally to issue writs, the power given the judg’e here is to be exercised by him at his discretion, and to cover cases where he cannot immediately get in communication with the clerk. This is apparent when we consider the authority of the judge or the court in the issuance of a writ of habeas corpus. Secs. 2442 and 2444, R. S. 1909. If the statute meant that all writs issued in vacation should be signed by the judge himself, then instead of using the words “out of court” the Legislature would have used the same language where it authorizes the judge to issue the writ “in vacation.” It is obvious that the Legislature did not intend that the' judge should sign the writ himself if the clerk was convenient who could attach the seal of the court to the writ. People v. Sanitary District, 56 N. E. 756; Custer County v. Yellowstone County, 9 Pac. 593. (3) It is next insisted that the service is invalid and did not give the court jurisdiction over the person of the relator herein, because at the time of the service he was in the city of St. Louis to answer an indictment for felony and was actually on trial at the time, under such indictment. This contention is without merit. Sec. 2454, R. S. 1909; Christian v. Williams, 111 Mo. 429 ; Baisley v. Baisley, 113 Mo. 544. The respondent in this case below, relator here, being in attendance upon the court for the purpose of answering a criminal charge, cannot invoke the rule because there is no public policy involved. Being compelled to be in the State for the purpose of attending his trial here, he had no option whether to remain away or to be in the State, and whatever may be said as to the rule where the party voluntarily comes into the State, under the authorities, it does not apply where he involuntarily comes into the State to defend himself against a criminal charge. Nitrograph Co. v. Scrugham, 197 N. Y. 377; Byler v. Jones, 22 Mo. App. 623; Williams v. Bacon, 10 Wend. 636; Commonwealth v. Daniel, 4 Clark (Pa.) 49; Moore v. Green, 73 N. C. 392; Adrience v. Legrone, 59 N. Y. 110; White v. Underwood, 125' N. C. 25.
   WOODSON, J.

— The relator applied to this court for a writ of prohibition, to prohibit J. PI. Grimm, one of the judges of the circuit court of the city of St. Louis, from further proceeding with the hearing of a writ of habeas corpus, issued by him in vacation, commanding the relator to produce the body of his son, John King Stack, before him in chambers on the 3.1st day of March, 1911. A preliminary rule was issued, and in response thereto the respondent in due time filed his return.

Briefly, the material facts of the case are substantially as follows, as appear from the pleadings in the case, viz.:

Richard B. Stack, a resident of Michigan, ánd Orion Allen Burbank, on and prior to August 13, 1908, were husband and wife, and said John King Stack was their son.

On said 19th day of August, said Orion was divorced from Richard B. Stack, and she was awarded the care and custody of the son; and thereafter she married one Burbank.

The allegations of her petition for the writ of habeas corpus state that matter in this language: “That on said Í3th day of August, 1908, petitioner was granted a decree of divorce from said Richard B. Stack, by the superior court of the State of Washington, in and for the county of Spokane, in the city of Spokane, State of Washington, and in said decree petitioner was given the absolute control and custody of said child.”

Then follow allegations that she brought the son to St. Louis, and that subsequently Richard B. Stack appeared there and enticed, decoyed and kidnaped the son from her.

Previous to the service' of the writ of habeas corpus, the grand jury of the city of St. Louis had indicted said Stack, to which charge he appeared and gave bond for his appearance to answer said indictment.

While in attendance upon the court in answering said charge of kidnaping, a copy of the writ of habeas corpus was served upon him, which was signed by the clerk of the court, and not by the judge who issued the same.

Upon that state of the record, Stack, the relator, appeared specially and filed a motion to quash the writ of habeas corpus, which is in words substantially as follows:

“Now comes the respondent in the above entitled matter, Richard B. Stack, and enters his appearance herein solely for the purposes of this motion, and for no other purpose whatever; and said respondent states that the court is without jurisdiction herein, and should quash the writ issued herein and abate this cause for the following reasons, to-wit:
“1. Because said writ was not served upon this respondent in the manner required by law, and was not served upon this respondent at all, but the only paper that was served upon this respondent was the one hereto attached, and herewith filed and made a part hereof .by reference thereto, and marked ‘Exhibit A,’ which may be a copy of the writ issued by the court herein, but which is not and does not purport to be the writ itself.
“2. The writ issued herein discloses upon its face that it is insufficient and does not conform to the requirements of law in that it fails to command the respondent to have the body of John King Stack, mentioned in said writ, before this honorable court ‘ without delay, ’ but on the contrary said writ, which on its face purports to have been issued by this court on the 28th day of March, 1911, commands the respondent to have the body of said John King Stack before this honorable court on the 31st day of March, 1911, at 10 o’clock a. m.
“3. The said writ issued herein discloses upon its face that it is insufficient in that said writ commands respondent to have the body of said John King Stack before this honorable court upon the 31st day of March, 1911; whereas said writ should have commanded respondent to have the body of the said John King Stack before this honorable court ‘without delay,’ or within twenty-four hours after the service of the said writ upon respondent, in the event that said respondent should be served with said writ within twenty miles of this court.
“4. Because, without any warrant or authority of law, this honorable court on the 31st day of March, 1911, at 10 o’clock a. m., and upon the motion of counsel for the petitioner, made an order herein that the time for respondent .to make return to the writ ■ herein would be and was extended until Saturday-morning, April 1st, 1911, at 10 o’clock.
“5. Because the writ issued herein was issued by the Honorable J. Hugo Grimm, one of the judges of this court, out of court, at chambers, and in vacation, and said writ was not signed by said judge, as is required by section 2447, Revised Statutes 1909.”

Relator states that on, to-wit, the 25th day of April, 1911, respondent overruled the aforesaid motions to quash, and each of them, and made an order that this relator file a return to said writ of habeas corpus on or before April 28-, 1911.

Further, relator says that the only writ ever issued in the aforesaid matter was the one aforesaid signed by the clerk of said court and issued under the seal of said court; that no writ in said matter was signed by the respondent, J. Hugo Grimm. That the aforesaid writ, issued as aforesaid, was not served upon this relator, but only the copy thereof as aforesaid.

Further, relator states that the aforesaid petition of Mrs. Orion Allen Burbank is fatally defective, and is insufficient to warrant the issuance thereupon of the writ of habeas corpus, in that said petition fails to set forth the facts constituting the alleged -wrongful and unlawful restraint of the child, John King Stack, therein referred to, and fails to set forth the facts disclosing the jurisdiction of the superior court of the State of Washington in and for the county of Spokane, in the city of Spokane, State of Washington, and fails to set forth the facts disclosing, or to allege at all, the said superior court of the State of Washington was a court having jurisdiction to decree to petitioner the absolute control and custody of said child, John King Stack, and fails to allege that said superior court had jurisdiction of the res or of the parties: that said deficiencies in said petition, and the matters and things, hereinbefore alleged, prevented the jurisdiction of the circuit court of the city of St. Louis, or of the respondent, from attaching, so that upon said petition the writ of habeas corpus could be lawfully issued.

Relator states that in consequence of the premises, the said circuit court of the city of St. Louis, and the respondent, the Honorable J. Hugo Grimm, are without jurisdiction to continue with this cause; but that respondent is about to proceed with this cause, and compel relator to make.a return, and undertake to make orders therein, and to adjudicate as to the custody of said child, and will do so unless restrained by this honorable court.

Wherefore, your relator prays this honorable court that a writ of prohibition be issued directed to said respondent, J. Hugo Grimm, judge of the circuit court of the city of St. Louis, State of Missouri, prohibiting him from taking any further cognizance of said habeas corpus proceeding now pending as aforesaid before him in Division No. 1 of said circuit court, and for such further relief as to this honorable court may seem proper in the premises.

And accompanying and filed with the aforesaid petition was an affidavit which, omitting formal parts, is as follows:

“Thomas B. Harvey, of lawful age, being duly sworn, upon his oath says that he was of counsel for defendant in the case of the State of Missouri, plaintiff, versus Richard B. Stack, defendant, in an indictment filed by the grand jury for the city of St. Louis, at the February term of court, 1910, and charging the said defendant with the felony of having in January, 1910, kidnapped his minor son, John King Stack, in the city of St. Louis, and having forcibly taken said child, from said city and the State of Missouri, into the State of Illinois, and other States and countries unknown to the grand jurors.
“That said defendant was required to appear at the city of St. Louis, and did so appear, and gave bail bond in the sum of twenty-five hundred dollars to answer said charge, said defendant residing in and being a citizen of the State of Michigan.
“That thereafter, to-wit, on the 27th day of March, 1911, said charge came on for trial in the circuit court of the city of St. Louis, Division No. 12 thereof for criminal causes, and upon the issue being-joined as to whether said defendant had kidnaped the aforesaid child, it was found by the verdict of the jury and by the judgment of the court thereon, to-wit, on the 31st day of March, 1911, that said defendant was not guilty of said charge, and he was thereupon discharged hence without day.
“Affiant further states that he is reliably informed and believes, and upon said information and belief states the fact to be, that the aforesaid child, John King Stack, has not been within the State of Missouri since the 14th day of January* 1910, the date of the aforesaid alleged kidnaping, as charged in the aforesaid indictment, and that the said child, John King Stack, was not within the State of Missouri during- the trial of the aforesaid criminal case against the said Richard B. Stack, nor was he in the State of Missouri at the time of the service of the writ of habeas corpus upon the said Richard B. Stack, as set forth in the petition for a writ of prohibition this day filed before the Supreme Court of Missouri, nor has he been in said State at any time since the aforesaid alleged kidnaping of him by his aforesaid father.”

The respondents return is as follows:

“To the Honorable Judges of the Supreme Court of Missouri:
“Now comes J. Hugo Grimin, Judge of the Circuit Court, City of St. Louis, Missouri, presiding in Division No. 1 thereof, and making return to the writ of prohibition herein, shows unto the court here that in the matter concerning which he has been cited to appear before this court, he proceeded with.and was proceeding in the proper exercise of the jurisdiction in such matters conferred upon him by law, and that there is no valid reason in law why the rule heretofore made upon him should be made absolute.
‘ ‘ Wherefore he prays that the said rule may be discharged. ’ ’

I. By reading the motion to quash the writ of habeas corpus issued in this cause by the respondent, it will be seen that its validity is questioned for a number of reasons, but from the view we take of the ease, it will be necessary for us to consider but two of them, namely-. First, is section 2M7, Revised Statutes 1909, requiring the judge, in vacation, to sign the writ, directory or mandatory? and, second, is the decree of the superior court of Spokane county, Washington, as pleaded, sufficient to divest the care,- custody and control of John King Stack, from the father, the natural guardian, and give it to the mother, the secondary guardian of the said son?

As to the first proposition presented, we have no hesitancy whatever in saying that the statute mentioned is mandatory, and must be strictly obeyed. It would be just as logical to say that the clerk of the court could legally sign the return of service.upon the writ made by the sheriff, as to say that he can legally issue and sign the writ,'while in express terms of the statute that duty is imposed upon the judge, and not upon the clerk. In the absence of such a statute, the power to sign such a writ would unquestionably devolve upon the clerk of the court, under his general powers and duties, but clearly, under the inhibition of this plain and unambiguous statute, that authority is withdrawn from the clerk, and, as before stated, is imposed upon the judge who issues the writ in vacation.

Presumably that is true, for the reason that in vacation there is no record proper to be made by the clerk in any case, and in order to have full and complete files in such a case, the Legislature deemed it wise and proper to impose all the authority and duties regarding such cases upon the judge, who issues the writ, and tries the case, and not upon the clerk of the court.

But be that as it may, the fact still remains, that the statutes in unambiguous terms have said that such a writ shall be signed by the judge, and we have no authority to interpolate into it, the words," or by the clerk of the court. Such a construction would be judicial legislation, and not an interpretation of the statute, as enacted by the lawmakers.

We are therefore of the opinion that the writ as issued is void and should have been quashed by the respondent.

II. Attending to the second proposition presented, we have this to say: That the allegations of the petition for the writ of habeas corpus were not sufficient to show that the superior court of Spokane county, Washington, had the jurisdiction or authority to divest Richard B. Stack, the father, the natural and legal guardian and custodian of his said son, John King Stack, and give that custody and control to his mother..

It is historical and elementary, that under the common-law rule the jurisdiction over divorce cases rested entirely with the ecclesiastical courts of the realm, but in the several States of the Union that jurisdiction is purely statutory, and rests alone with those courts upon which it has been expressly conferred by legislative enactments. [2 Bishop on Marriage & Divorce, secs. 801 and 1185; 1 Bishop on Marriage & Divorce, sec. 128; Steele v. Steele, 35 Conn. 48; Hatfield v. Hatfield, 6 D. C. 80; McGee v. McGee, 10 Ga. 477; Robbins v. Robbins, 140 Mass. 528; Sparhawk v. Sparhawk, 116 Mass. 315; Higgins v. Sharp, 164 N. Y. 4; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Olin v. Hungerford, 10 Ohio, 268; Northcut v. Lemery, 8 Ore. 316; Cast v. Cast, 1 Utah, 112; Le Barron v. Le Barron, 35 Vt. 365.]

That being true, no presumption of jurisdiction obtains in such proceeding in any court of any of the States of the Union; and all courts exercising jurisdiction in any such case must be taken and held to be courts of inferior or limited jurisdiction, and in pleading here such a judgment of a court of another State, it is absolutely necessary to aver in appropiiate language its jurisdiction over the parties and the subject-matter of the suit, or to allege in the language of our statute, section 1835', Revised Statutes 1909, that the judgment thereof was “duly given or made.” Neither of those averments appear in the petition for the writ of habeas corpus filed with the respondent here.

Mr. Black, in his excellent work on Judgments (2 Ed.), vol. 1, section 279, in treating this subject, says: “So far, we have confined our attention to the presumptions of jurisdiction in the case of a superior court, exercising its ordinary common law powers. It remains to speak of the exercise of peculiar statutory powers, and then of the judgments of inferior tribunals. And first, it is an established rule that when a court of general jurisdiction has special and statutory powers conferred upon it, which are wholly derived from statute, and not exercised according to the course of the common law, or are not part of its general jurisdiction, it is to be regarded as quoad hoc an inferior or limited court, and its judgments to be treated accordingly, that is, its jurisdiction must appear on the record and cannot be presumed.” See numerous authorities, both State and Federal, cited by him in support of the text; also 1 Bailey on Jurisdiction, section 112.

Also Mr. Freeman, in his able work on Judgments, yol. 2, section 454, in treating the failure of the pleader to aver what is required by statutes similar to ours, as previously mentioned, uses this language: ‘ Many of the States have passed statutes in which it is provided that in pleading the judgment or determination of a court of special jurisdiction, the facts concerning jurisdiction need not be stated; but that the ‘averment that the judgment or determination was duly given or made shall be sufficient. ’ This statute is not complied with by alleging that ‘ a judgment was entered in said action.’ Though it probably is not essential that the precise words of the statute be employed, they can not be substituted by words not having the same effect. The word ‘duly’ has been held to be indispensable-.”

Kelly v. Kelly, 161 Mass. 111, was a suit instituted in Massachusetts upon a judgment for alimony rendered in a divorce proceeding in the State of New York; and the court held that the proceeding in New York was not “according to the course of common law,” but was necessarily based upon the statutes of New York, and that it was necessary to allege and prove that the court rendering the judgment in New York had statutory jurisdiction to render the judgment.

Volume 11, page 1138, of Ency. Plead. & Prac., states the rule as follows: “Where the statutory mode of declaring is adopted, either the words of the statute or words of exactly similar import must be used. Hence an allegation that plaintiff ‘recovered a judgment,’ or that a judgment was entered ‘in said action’ without averring that it was.‘duly’ 'entered, is not sufficient.” Citing Hunt v. Dutcher, 13 How. Prac. 538; Harmon v. Comstock Horse, etc. Co., 9 Mont. 243; Weaver v. English, 11 Mont. 84; Boyce v. Brown, 7 Barb. (N. Y.) 84.

Black on Judgments, vol. 2, section 875', states the same rule in these words: “And it is further to be observed that if the court rendering the judgment was one of limited, inferior or statutory jurisdiction, or if the proceedings were in derogation of common law, jurisdiction will not be presumed, but must be affirmatively shown by the face of the record or fully and distinctly pleaded and proved.”

The precise question now under consideration was presented to the Supreme Court of Indiana, in the case of Hardin v. Hardin, 168 Ind. 352. That was a petition for a writ of habeas corpus to obtain the care and custody of a minor child bottomed on a decree of divorce, rendered in Kentucky, but there, as here, the petition for the writ filed in the Indiana court contained no charges that the Kentucky court which rendered the decree had jurisdiction over the parties and the subject-matter of the suit. In disposing of that question the court, on pages 357 and 358, said: “The infirmity, however, of appellant’s complaint, in one respect at least, is that there is an entire absence therein of any averments to show that the McLean Circuit Court had jurisdiction over the subject-matter and the parties in the proceeding wherein the decree of divorce to appellee was awarded, and whereby the custody of the infant child in question was determined and fixed as alleged in the .complaint. There are no allegations in the pleading to show that the McLean Circuit Court was, under the laws of Kentucky, a court of general jurisdiction. This at least was necessary in order to disclose that the decree upon which appellant predicates his right to have the custody of the child was rendered by a court which was invested with the necessary jurisdiction in divorce proceedings. ’ ’ To the same effect are, Bailey v. Martin, 119 Ind. 103; American, etc. Life Ins. Co. v. Mason, 159 Ind. 15; Gates v. Newman, 18 Ind. App. 392; Ashley v. Laird, 14 Ind. 222, 77 Am. Dec. 67.

We are, therefore, clearly of the opinion that the petition for the writ was insufficient to have authorized its issuance.

Having reached the conclusion that the application for the writ of habeas corpus was insufficient to au: thorize its issuance, in our opinion, under the authority of State ex rel. v. Dobson, 135 Mo. 1, nothing remained to be done in the case, by the respondent, but to quash the writ as prayed by the motion. In that case the writ had been issued by the circuit court of Jackson county, and its jurisdiction in that regard was challenged, by means of a writ of certiorari at. the instance of the Attorney-General, on the grounds that the averments of the application were insufficient to invest that court with jurisdiction to issue the writ, and after a most exhaustive and careful consideration, in an opinion delivered by this court, the writ was quashed. On page 10 the court used this language: “Now all the authorities hold that a petition asking the relief the petitioners seek, must on its face show ‘probable cause,’ and when it appears from the party’s own showing that there is no ground prima facie for his discharge, the court will not issue the writ. In short, the writ of habeas corpus is a writ of right, but not a writ of course. . . . The issuance of the writ is not a mere perfunctory operation. . It is not to be ‘had for the asking.’ . . . Judicial discretion is as necessary in the issuance of the writ as in the issuance of any other writ whatsoever. It can only properly issue to the one entitled to it, either under the common law or under the statute. Were this otherwise, the writ would descend from its high plane, and its issuance become a mere ministerial act which could be performed by the clerk of the court as well as by the judge. ’ ’

And further along in the opinion, on page 17, the court says: “Besides, granting the existence of a general jurisdiction in respondent to issue writs of habeas corpus, still that jurisdiction never attached in this particular case; was not put in motion by reason of the fact that such allegations as the statute requires to be made in the petition as the basis for the issuance of the writ in sections 5346 and 5347, were not made; the rule being that when ‘the law conferring’ the power on the court to act in the matter requires the allegation of a particular fact to exist as a condition to its exercising its power, such fact must be averred, for this refers to and circumscribes the power of the court to act except upon the existence of such fact.’ [Brown, Jurisdict., sec. 1.] ”

If it be true, as before stated, and under the authorities cited we think there can be no doubt but what it is, that the Washington court had no jurisdiction or authority to take the care and custody of the son from the father and give it to the mother, then there was no crime or wrong in the father in taking him from the mother and carrying him beyond the bounds of the State. By so doing he was but exercising his lawful rights and legal duties.

While as before stated, there are a number of other grounds assigned for quashing the writ, but in view of the conclusions previously announced herein, it will not be necéssary to notice them.

The premises considered, we are of the opinion, that the respondent had no jurisdiction to issue the writ of habeas corpus, or to try the cause; and we, therefore, order the peremptory writ of prohibition to issue, as prayed.

All concur.


author: BROWN, J.

text:
    THE STATE ex rel. MODERN WOODMEN OF AMERICA v. ELBRIDGE J. BROADDUS et al., Judges of Kansas City Court of Appeals et al.
    In Banc,
    January 27, 1912.
    1. ABSTRACT: Motion for New Trial: Abstract Showing Filing During Term. Appellate courts take judicial notice when the regular terms of circuit courts are held, and must judicially know that a regular term of the circuit court of Adair county was held on Monday, May 16, 1910. Hence,, where the abstract of the - record proper recites that the cause came on for trial on the 16th day of May, 1910, that a verdict was returned and a judgment entered on the 17th day of May, 1910, that appellant filed a motion for a new trial on May 18, 1910, that thereafter on the 1st day of June, 1910, said motion for a new trial was taken up, heard and overruled, and that an appeal was granted “at the same term” and on the same day, it will be presumed that the court met in regular session on May 16, 1910, and continued in regular session until and including June 1, 1910, and that the motion -for a new trial was filed during the same term at which the verdict was rendered. Besides, it is the duty of the appellate court to read into the printed abstract the certh fied copy of the judgment and order granting an appeal on file with its clerk, and if that copy shows that’the May term continued until June 1st, it should be held that the motion for a new trial filed on May 18th.was filed “at the same term” the verdict was returned.
    2. -: Request to File Supplemental Abstract. A mere request to file a supplemental or more complete abstract of the record after appellant’s original abstract has been challenged, does not justify the appellate court in refusing to consider the original abstract then on filé.
    3. -: Omission of Pleadings. Where the abstract contains the petition, answer and reply in haec verba, except the style of the case and the signatures of attorneys are omitted, the Court of Appeals is not justified in refusing to consider the case on the ground that the abstract does not show the pleadings upon which the cause was tried in the circuit court. c,
    4. -: Naming Term of Circuit Court: Judicial Knowledge. It is within the judicial knowledge of an appellate court that a regular term of the circuit court of Adair county was begun on Monday, May 16, 1910; and though the abstract does not recite the cause was tried at a term of the circuit court of that county, yet that defect, if it is one, since the abstract recites that the cause came on for trial in the circuit court on May 16, 1910, is supplied by the court’s judicial knowledge.

      5. -: Record Entry of Appeal Granted. Where appellant’s abstract under the. caption of “Record Entries” recites that at the same term of the court “said appeal was granted” to appellant, that is a showing of a record entry of the order granting .. the appeal.
    6. -: Bill of Exceptions: Order Granting Appeal: Not Mentioned in Bill. The record proper derives no force or validity from any recital in the bill of exceptions, and it is not necessary that the bill of exceptions contain a recital that the trial court extended the time for filing a bill of exceptions or a recital of the order granting an appeal, but a recital of those matters in the record proper is sufficient.
    7. -: Court of Appeals: Erroneous Refusal to Hear Case on Merits:- Mandamus. Where the judges of a court of appeals have adjudged, on clearly erroneous grounds, that appellant’s abstract was insufficient to authorize them to consider the errors assigned in appellant’s bill of exceptions, the Supreme Court will by mandamus compel them to reinstate the cause and determine it upon its merits. The fact that the court has adjudged the abstract insufficient, and in their return plead that they had jurisdiction to so determine and whether their adjudication was correct or not the ruling was one within their jurisdiction, will not avail to prevent the writ from issuing.
    8. -: -; — : -: -; Partial Jurisdiction. The .constitutional power of the Supreme Court to compel the judges of a court of appeals to exercise their jurisdiction in a case properly lodged with them on appeal, necessarily implies the power to compel them to exercise their whole jurisdiction, and to determine all issues presented by the appeal. The Supreme Court has power to compel them to consider the sufficiency of the abstract lodged with them; and it is not shorn of its power to compel them to consider assigned errors, simply because they have, on clearly erroneous grounds, adjudged the abstract insufficient to preserve such assignments for consideration.
    9. -: -: -: -: Directed also to Sheriff and Circuit Clerk. Where a Court of Appeals has refused, on erroneous grounds, to entertain appellant’s appeal and has af- * firmed the judgment and refused appellant a rehearing, and ordered its mandate sent down, and an execution has issued, the Supreme Court, having determined that said Court of Appeals must hear said appeal on its merits, will, by its separate writ of mandamus,, compel the circuit clerk to return to the Court of Appeals its mandate affirming the judgment, and the sheriff to return the execution, in order that the case may remain in statu quo until the appeal is fully and finally determined.

      Mandamus.
    Peremptory writ awarded.

      Benjamin D. Smith and G. K. Hart for relator.
    (1) The court will take judicial notice of the time the stated terms of court commence and the date when the motion was filed, that is, the eighteenth day of May,' 1910, excludes the idea that the court was in session at the next term after the judgment term, as the times fixed by statute for the terms of the circuit court of Adair county are the third Monday in May and the fourth Monday in October, hence the court could not on any date in May or June, 1910, have been in session at the October term of court. Ray County Savings Bank v. Hutton, 224 Mo. 51. (2) The certified copy of judgment and order granting an appeal which are on file in this court shows that the order granting an appeal was made at the same term of the court; and the certified copies of the judgment and order granting an appeal will be read into the abstract. Ray County Savings Bank v. Hutton, 224 Mo. 42; Coleman v. Roberts, 214 Mo. 634. (3) There can be no question but what this court would, on a proper showing issue a peremptory writ of mandamus to the Kansas City Court of Appeals in a case where that court had improperly dismissed an appeal. Can there be any good reason urged why this court should not have the same power in a case where the Kansas City Court of Appeals, ignoring the errors alleged, affirms the judgment on a record proper in which no error has ever been suggested? - This court in a long line of cases, including State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Smith, 172 Mo. 618 ; State ex rel. v. Phillips, 97 Mo. 331; State ex rel. v. Broaddus, 210 Mo. 1, has held that where the lower court has refused to exercise jurisdiction- and dismissed the appeal the peremptory writ may properly issue.

      Campbell <& Ellison and Weatherby & Frank for respondents.
   BROWN, J.

— Mandamus to compel respondents, as judges of the Kansas City Court of Appeals, to set aside an order made by them, as such judges, in March, 1911, affirming a judgment of the circuit court of Adair county, wherein one Nannie Floyd is respondent and the Modern Woodmen of America, a fraternal benefit society, is appellant.

The writ also seeks to compel respondents to set aside an order made by them in said cause denying said appellant a rehearing, and to compel said respondents to re-docket said cause and to hear and determine . same on the whole record presented by said appeal.

An examination of the writ and return of the respondents thereto discloses the following facts:

On May 17, 1910, Nannie Floyd, as plaintiff, obtained a judgment for $2000' against the Modern Woodmen of America, as defendant, in the circuit court of Adair county. Said defendant appealed from said judgment to the Kansas- City Court of Appeals, filing in said last named court a certified copy of the judgment and order granting the appeal, and also what was intended to be a printed abstract of the entire record.

In March, 1911, respondents heard said appeal, but believing that appellant’s printed abstract of the ' record proper was not sufficient to give them jurisdiction of the alleged errors- noted in the bill of exceptions, affirmed the judgment. They also denied appellant a rehearing of said appeal.

From the opinion filed by respondents in said case of Floyd, respondent, v. Modern Woodmen of America, hereinafter designated as appellant, we find that they refused to consider the alleged errors of the trial court noted in the hill of exceptions on the following grounds:

1. The record proper in said case of Floyd v. Modern Woodmen of America does not show that appellant’s motion for new trial was filed during the same term of the circuit court at which the verdict was rendered.

2. Said appellant requested permission of respondents to file in said cause a supplemental or more complete abstract of the record.

3. Said abstract does not show any of the pleadings upon which the cause was tried in the circuit court.

4. It does not recite that the cause was tried at a term of the circuit court of Adair county.

5. It shows that an appeal was granted, but does not recite any record entry to that effect.

6. The bill of exceptions does not refer to the first order made by the trial court extending the time for filing the exceptions, and the bill of exceptions likewise does not refer to the order of the trial court granting the appeal.

7. In their return to the alternative writ herein, respondents allege that the sufficiency of appellant’s printed abstract of the record was a matter within the jurisdiction of the respondents as judges of the Kansas City Court of Appeals, and if they committed error in adjudging said abstract insufficient, “it is error merely from which there is no appeal, and relator cannot by mandamus secure a rehearing in this or any other court. ’ ’

On pages 24 and 25 of appellant’s printed abstract, under the caption, “Record Entries,” appears the following:

On the 16th day of May, 1910, tne aoove entitled cause came on for trial before the Honorable Nat M. Shelton, Judge of the Circuit Court, and a jury.
On the 17th day of May, 1910, the Jury found a verdict for the plaintiff in the following form:
“We, the jury, find for the plaintiff in the sum of $2,000.
“W. P. Lindek, Foreman.”
Which said verdict was duly entered of record on said 17th day of May, 1910, the judgment was duly entered thereon on said date in due form (certified copy of judgment on file in Court of Appeals).
On May 18, 1910, the defendant filed its motion for a new trial herein, and thereafter, to-wit, on the first day of June, 1910, the said motion for a new trial was taken up by the court, heard, and considered, and overruled, to which action of the court defendant then and there objected and excepted.
Whereupon, on the first day of June, 1910, the defendant at the same term of court filed an application and affidavit for an appeal to the Kansas City Court of Appeals, which said appeal was granted on said date, and defendant was granted until on or before or during the October term 1910, of the court, within which to file its bill of exceptions.
Afterwards on the 14th day of June, 1910, within the time granted by the court, defendant filed its appeal bond, which said bond • was approved.
Afterwards, within the time granted by the court for the filing of the bill of exceptions by an order entered of record on the 10th day of October, 1910, during the October term of the circuit court of Adair county, Mo., the court for good cause shown, extended the time for the filing of the bill of exceptions until the first day of December, 1910.
And within the time granted for the filing of said bill of exceptions, to-wit, on the first day of October, 1910, comes the defendant and tenders to the Honorable Nat M. Shelton its bill of exceptions, which said bill of exceptions was thereupon, upon said date, allowed and signed by the said judge, Honorable Nat M. Shelton, and ordered filed, and said bill of exceptions was thereupon filed in the office of the clerk of the said circuit court of Adair county, Mo., on the 28th day of November, 1910.
On the 3d day of August, 1910, the appellant filed in the Kansas City Court of Appeals a certified copy of the judgment hereinbefore referred to and order granting an appeal in this cause.

OPINION

I. We are of the opinion that respondents -were in error in holding that the printed abstract of the record prepared by appellant did not recite that the mo.tion for new trial was filed at the same term of the circuit court at which the judgment was rendered.

As appellate courts take judicial notice when the regular terms of circuit courts are held, respondents must judicially know that a regular term of the circuit court of Adair county was held on Monday, the 16th day of May, 1910.

Appellant’s printed abstract of the record recites that the trial was begun on said 16th day of May, 1910, and completed on the 17th day of said month; and that the motion for new trial was filed on May 18th, 1910. The order granting the appeal was entered on June 1st, 1910, and recites that it was entered at the same term. Prom these entries we will indulge the presumption that the circuit court convened in regular session May 16, 1910, as required by section 4017, Revised Statutes 1909, and that it continued in such regular session until June 1st of that year. It is the duty of appellate courts to read into the printed abstract the certified copy of the judgment and the order granting the appeal when the printed abstract is not clear and definite. [Ray Co. Savings Bank v. Hutton, 224 Mo. 42, l. c. 51.] By that simple act, any doubt which clouded the minds of respondents as to whether the motion for new trial was filed at the same term the verdict was returned, would have been .removed, because said certified copy shows that the May term continued until June 1st, when the appeal was granted. Consequently, we must hold respondents were not, justified in refusing to consider the bill of exceptions on the ground that the record proper failed to show that the motion for new trial was filed in due time.

II. Respondents’ second ground for refusing to consider appellant’s bill of exceptions is that appellant requested permission to file a supplemental or more complete abstract of the record after his original abstract had been challenged. We do not think that the mere request for permission to file a supplemental-abstract justified respondents in refusing to consider the bill of exceptions. While it was probably appropriate to refuse the filing of a supplemental abstract, the mere request to file same, in the absence of a defect in the printed abstract, could be no excuse for refusing to consider the bill of exceptions. In other words, the printed abstract should have been judged by its contents rather than by the offer of appellant to file an additional or corrected abstract.

III. The opinion of respondents recites that they declined to grant the appellant a rehearing, on the ground that the abstract omits the pleadings upon which the cause was tried in the circuit court; but an inspection of the abstract shows that, commencing on page 1 and ending on page 23> it contains the petition, answer and reply in haec verba, except that the style of the case and signatures of attorneys are omitted. Hence, it is entirely clear that respondents were not justified in declining to grant a rehearing on this alleged ground.

IY. Respondents’ said opinion also recites that appellant’s abstract does not state that the cause was tried at a term of the circuit court of Adair county. It is only necessary to say that whatever defect there is in the abstract on this point is supplied by the judicial knowledge of the court, that a regular term of the circuit court of Adair county convened on the 16th day of May, 1910, which is the same day the trial was begun, as recited in the abstract. [State v. Broderick, 70 Mo. 622; Hadley v. Bernero, 97 Mo. App. 314.]

V. It is also alleged by respondents that appellant’s printed abstract shows no record entry of the granting of the appeal. Here again we think respondents were clearly mistaken, because the appellant’s abstract of “Record Entries” (page 24 of the abstract), recites that an appeal was granted on June 1, 1910. This purports to be an abstract of the record entry of the court, and can mean nothing else than that the appeal was granted by an order of the court duly entered of record.

VI. As a further ground for refusing to consider the bill of exceptions, respondents in their opinion recite that the bill itself does not mention the fact that the trial court extended the time for filing said bill, nor does it recite that the court made an order granting an appeal. Whether the appeal was properly granted and whether the bill of exceptions was filed in such timely manner as to give respondents jurisdiction of alleged errors noted in said bill’ must be determined by the record proper. The record proper derives no force or validity by any recital in the bill of exceptions, and as the record proper in this case shows that the bill of exceptions was filed within the time granted by the court, it was not at all necessary that the bill itself should refer to the order extending time nor the order granting the appeal. We have repeatedly held that copying into a bill of exceptions the order granting time to file same was insufficient to show that said order was entered of record, but that the order granting time must appear in the record proper. [Pennowfsky v. Coerver, 205 Mo. 135.]

As the order granting time to file bill of exceptions and the order granting the appeal were in the abstract of record proper in this case, it would have been a useless waste of time and space to have again recited or referred to them in the bill of exceptions.

VII. This brings us to the last matter of defense set up by respondents to prevent the issuance of the peremptory writ in this case; to-wit, that respondents were clothed with full jurisdiction to determine the sufficiency of the abstract of the record, and even though they may have erroneously adjudged the abstract insufficient, the writ of mandamus cannot be invoked to compel them to reverse their ruling.

The case of State ex rel. v. Broaddus, 207 Mo. 107, is cited by respondents to sustain their contention on this point.'

The majority opinion of this court in that case does sustain the contention of respondents on this point, but it is not the last and controlling opinion of this court on the point in controversy. In the case of State ex rel. v. Broaddus, 210 Mo. 1, the respondents had erroneously adjudged an affidavit of appeal insufficient, and thereupon dismissed the appeal; and we directed them to reinstate the case and hear said appeal. That case in legal effect was almost precisely like the case at bar. The preparation and filing of a proper affidavit for appeal in that case was only a necessary preliminary to obtain a review by appeal of the alleged errors of the trial court; and in the case at bar, the preparation, settling and filing of a proper bill of exceptions and the printing of a proper abstract of the record were only matters preliminary and necessary to secure a review by appeal of the alleged errors of the trial court noted in the bill of exceptions.

In the recent case of State ex rel. v. Grimm, 220 Mo. 483, the circuit court of the city of St. Louis struck from its files and refused to consider a demurrer to an information in the nature of quo warranto; and in a proceeding by mandamus, we held that it being the duty of the trial court to hear and determine the aforesaid demurrer, it could not be permitted to evade that duty by striking the demurrer from its files.

It is conceded by respondents that if they had improvidently dismissed the appeal, we would have had power to compel them to reinstate the cause and hear and determine same, but as they did in this case hear the appeal and exercise their jurisdiction by affirming the judgment of the lower court, we are powerless to compel further action on their part by the writ of .mandamus. In this view, we think respondents are clearly in error. If we have power under the Constitution to compel them "to exercise a part of their jurisdiction over an appeal, we undoubtedly have the power to compel them to hear all issues properly presented by such appeal, whether such issues be found in the record proper or in the bill of exceptions. Our constitutional power to compel respondents to exercise their jurisdiction in an appeal properly lodged with them, necessarily implies a power to require them to exercise their whole jurisdiction in such appeal, and to determine all issues presented therein.

Finding that it was the duty of respondents as such judges of the Kansas City Court of Appeals to consider the alleged errors noted in relator’s bill of exceptions, the peremptory writ will issue, as prayed.

Relator having also asked that the clerk of the circuit court of Adair county be required to return to the Kansas City Court of Appeals the mandate affirming the judgment of the circuit court, and that the sheriff of said county be also required to return an execution issued on said judgment and delivered to him, separate writs will issue to said clerk and sheriff, as prayed, to the end that the judgment against relator shall remain in statu quo until the appeal is fully and finally disposed of.

Valliant, G. J., and Kennish, Graves and Lamm, JJ., concur; Ferriss and Woodson, JJ., dissent.


author: FERRISS, J.

text:
    JOHN C. DONNELLY, Appellant, v. MISSOURI-LINCOLN TRUST COMPANY, Appellant.
    Division Two,
    February 6, 1912.
    1. REFERENCE: No Complaint of Rulings on Exceptions: Waiver. Unless the motion for a new trial complains of the court’s rulings on the exceptions to the referee’s report, any objection to those rulings is waived, and cannot be considered on appeal. A complaint in the motion of the finding of the ¡referee, and of the decree, is not enough.
    2. DECREE: Inconsistent: Rescission of Contract and Claim Thereunder: Purchase of Bonds. A plaintiff cannot both repudiate a contract and claim under that contract. He cannot repudiate a subscription contract for the purchase of bonds and have a lien on the properties which secure the payment of those bonds for money paid by him for bonds that were never delivered. A decree rescinding the contract and granting him a pro rata lien on the properties covered by the bond mortgage is inconsistent.
    3. -: Power of Pledgor to Sell Bonds: Decree for Purchaser Against Trustee. By the terms of a contract a trust company was to advance a large sum of money to 'a Baryta Company to purchase 3d,000 acres of mineral lands and other properties, which were to be conveyed to the Trust Company as security for moneys advanced, and that was done. The Baryta Company was also authorized to issue bonds, with the Trust Company as trustee, secured by a first mortgage on the properties, and the Trust Company was to hold them as security for money advanced'by it, but the Baryta Company was authorized to sell the bonds, but all proceeds derived therefrom were to be “applied to the payment of said loan and interest thereon.” Thereafter the promoter of the Baryta Company entered into a written subscription contract with plaintiff by which plaintiff agreed to buy $30,000 of said bonds, “payments to be made to said Trust Company.” The Baryta Company received the $30,000 from plaintiff, and did not turn it over to the Trust. Company, which knew nothing of the subscription contract and never authorized it. The bonds were never issued. Held, that there is no basis for a personal judgment against the Trust Company, and it is not compelled to share with plaintiff in the proceeds of the sale of the properties covered by the mortgage, but plaintiff has a lien on those properties subject to the lien of the Trust Company.

      4. -: -: -: Failure to Read Contract. The fact that plaintiff did not read the clause in the contract declaring that the money paid by him for the bonds was to be paid to the Trust Company (trustee) instead of the company issuing them does not authorize the court to disregard that provision in the contract. Having had an opportunity to read it and having signed it, knowledge of that provision in the contract is by the law imputed to him. Nor does the fact that he had implicit confidence in the promoter of the company issuing the bonds, and had had for years, and that said promoter pretended to read said contract to him before he signed it, omitting to read that provision, give him any right to a judgment against the Trust Company or a lien on the properties conveyed to it as security for the payment of moneys advanced by it, for moneys he paid to said promoter, since said promoter did not represent the trustee, was not acting for it, and could not waive any right it had.
    Appeal from St. Louis City Circuit Court. — Eon. George E. Shields, Judge.
    Reversed and remanded (with directions).

      Willis Baldwin, E. 0. Grosvenor and Eliot, Chaplin, Blayney & Bedal for plaintiff appellant.
    (1) The contract of June 15 was fraudulent as to prospective purchasers. This contract contemplated turning over property to the corporation hy the promoters, at a sum of two or three times its actual cost, without disclosing its real cost to the purchasers of bonds and stock. Cook on Corp. (4 Ed.), sec. 651; Line Co. y. Case, 104 Mo. 572; Melendy v. Keen, 89 111. 395; Zang v. Adams, 23 Col. 408; Tyler v. Savage, 143 IJ. S. 79; Vreeland v. Stove Co., 29 N. J. Eq. 195; Ramsey v. Manufacturing Co., 116 Mo 330; Hornblower v. Crandall, 78 Mo. 581. (2) The Baryta Company was the agent of the Trust Company in selling plaintiff his bonds; and the Trust Company is personally liable for the false statements of its agents. Cook on Corp. (5 Ed.), sec. 143; Phipps v. Commission Co., 105 Mo. App. 67; Railroad v. Mathews, 77 Ala. 365; Dunn v. White, 63 Mo. 185; Clinkerbaum v. Weatherman, 157 Mo. 112. (3) Plaintiff’s subscription contract constituted an equitable mortgage in his favor. Both the contracts of June 15*, between Robinson and the Trust Company, and the subscription contract of June 17, were contracts to give a mortgage in the future to secure present payments. An agreement to give a mortgage in the future is given effect in a court of equity as an equitable mortgage. Canal Co. v. Yallette, 21 Howe, 422; Elevator Co. v. Meader, 72 Fed. 115; Ploward v. Delgardo & Co., 121 Fed. 26 ; Hackett v. Watts, 138 Mo. 592; Carter v. Holman, 60' Mo. 498; Blackburn v. Twee-die, 60 Mo. 505; Martin v. Nixon, 92 Mo. 26; Sprague v. Cochrane, 114 N. Y. 104; Walker v. Brown, 165* U, S. 606; Carter v. Hollman, 60 Mo. 498; McQuie v. Peap, 58 Mo. 58. (4) The Trust Company is not entitled to participate in the equitable mortgage for two reasons: 1. Because it should be held personally liable, as pointed out in point two; 2. Because it has voluntarily released any rights it may have had in an equitable mortgage by taking a different mortgage than the one contracted to be given. Coyle v. Dairs, 20 Wis. 564; Campbell v. Carter, 14 111. 289'; Dingman v. Randall, 13 Cal. 512.
    Carter, Collins, Jones & Barker and M. P. Murray for defendant appellant.
    (1) A decree or judgment in a cause must be within the scope of the pleadings and the issues raised by them. Tanner v. Railroad, 180 Mo. 26; Waldheier v. Railroad, 71 Mo. 516; Spoors v. Coen, 44 Oh. St. 497; Phillips, Code Pleading, sec. 466; Munday v: Yail, 34 N. J. L. 418; Smith v. Fordyce, 190 Mo. 16. (2) An action to foreclose a mortgage, or whereby the title to real estate is sought to be affected must be brought in the county within which such real estate or some part thereof is situate. B. S. 1909, sees. 1753, 2809; Ensworth v. Holly, 33 Mo. 370; Trnesdale v. Brennan, 153 Mo. 600. (3) Equity will affix an equitable mortgage only on property at the time owned by the contractor or thereafter acquired by him, and it is en-forcible only against the owner and his heirs and representatives and purchasers or encumbrancers with notice. 19 Am. & Eng. Ency. Law, p. L5; 25. Cyc., p. 665. (4) A written contract is the highest evidence of the terms of an agreement between the parties and one who signs such is bound by its provisions although he failed to read it or inform himself of its provisions. 9 Cyc., p. 388; Gwin v. Wagner, 93 Mo. 327; McNealy v. Baldridge, 106 Mo. App. 18; Paris ■ & Co. v. Carle, 116 Mo. App. 581; International Text Book Co. v. Lewis, 130 Mo. App. 158. ‘(5) The adoption of one of two or more inconsistent remedies amounts to an election and is conclusive and a bar to the resort to an alternative remedy. 7 Ency. PI., p. 364; Com. Co. v. Bailroad, 52 Mo. App. 408; Frowein v. Heysler, "87 Mo. App. 315'.
   FERRISS, J.

— Cross appeals. In 1901 several promoters, represented by one O. E. Bobinson in the transactions hereinafter detailed, formulated a plan to organize a corporation to acquire and operate properties described in the contract set out below, on all of which properties Bobinson claimed to hold options. The mineral lands had been examined by experts, who reported favorably and endorsed a prospectus issued by the promoters which showed the properties to have sufficient actual and potential value to justify the enterprise and the proposed capitalization of the company. Mr. Bobinson interested the Missouri Trust .Company (whose name was subsequently changed to Missouri-Lincoln Trust Company, and which will be spoken of herein as the Trust Company) to advance money by way of loan to acquire the properties for the corporation to be created, and also to act as trustee in a mortgage to be given to secure a proposed bond issue. On June 15, 1901, a written agreement was entered into between the Trust Company and Robinson, as follows:

Memoranda of agreement between Orlando E. Robinson, of Baltimore, Maryland, and the Missouri Trust Company of St. Louis, Missouri,
Witnesseth: The said Robinson owns and has contracts to purchase approximately thirty-three thousand (33,000) acres of land in Washington county, Missouri, consisting of the Baryta, Lead, Zink, Iron and Timber lands known as the “McArthur,” “Shibboleth,” “White” and “Old Mines,” and other properties, including stores, smelters, residences, town lots and buildings in and -near Potosi, Cadet, Mineral Point and Old Mines, Missouri. Said Robinson also holds a contract to purchase a manufacturing plant at St. Louis, Missouri, the G-ilman property, at Kansas City, Kansas, consisting of a brick building containing a complete Baryta grinding and pulverizing plant and six town lots; one thousand acres of Baryta land, in Miller county, Missouri; all the property and assets of the National Mining and Milling Company, of Baltimore, Maryland, and a branch manufactory at Highlands, New York; Baryta lands in North and South Carolina, including also all the patents and applications for patents which said National Mining and Milling Company is now using in the production of a pigment for paint manufacturers and by-products. Titles to all of said property to be made satisfactory to said Missouri Trust Company of St. Louis.
Said Trust Company has agreed to loan said Robinson several sums of money in the aggregate, if desired by said Robinson, but not to exceed the sum of $500,000, for the purpose of purchasing said properties as preliminary to the acquisition of said properties by the American Lead & Baryta Company, a corporation hereafter to be formed.
Said moneys are to be advanced from time to time as needed, not, however, more rapidly or in greater amounts than as follows:
One hundred thousand dollars at the date of this memorandum;
..................Dollars on or about..................1901.
..................Dollars on or about..................1901.
..................Dollars on or about..................1901.
Each amount to bear interest from the date of advancement at the rate of five per cent per annum.
Said O. E. Robinson to give his promissory notes for all sums advanced, each note to be accompanied by collateral security satisfactory to the Trust Company to at least the face value of the note.
All the said properties are .to be conveyed to the said Missouri Trust Company of St. Louis as additional security, and are to be hereafter conveyed by the said Missouri Trust Company to the said American Lead & Baryta Company, or to some one for it.
Bonds of the said American Lead & Baryta Company, to the amount of the par value thereof of one million, five hundred thousand dollars, secured by a first mortgage upon the above properties and such other properties as said company may acquire before the execution of such mortgage, and to be a first lien thereon, are to be issued.
The capital stock of said Company to be ten million dollars. The Missouri Trust Company of St. Louis to be the trustee in the mortgage securing said bonds.
Of said bonds, one million, two hundred and fifty thousand dollars, and an equal amount of said stock, are to be delivered to the said Missouri Trust Company of St. Louis in lieu of said properties, and simultaneously therewith said properties are to be conveyed to the said American Lead & Baryta Company.
Bonds to the amount of two hundred and fifty thousand dollars to be reserved by the said Robinson to be used as part of the consideration to be paid Robinson to be used as part of the consideration to be paid in the purchase of certain of the properties above mentioned; but said bonds to be held by said Missouri Trust Company of St. Louis, until paid out by it for such purpose and are during the continuance of this loan not to be used for any other purpose, and unless and until needed for such purpose to be held by said Trust Company as additional security in the same manner as the remainder of said bonds are held. Said bonds and stock shall be held by the said Missouri Trust Company as additional security for the payment of said loans in the same manner as said properties were held until said loans are paid. Said bonds may be sold by said American Lead & Baryta Company from time to time for not less than par, but all proceeds derived therefrom shall be applied to the payment of said loan and interest thereon and proper fees and charges.
After the payment of said loans and interest, the balance-of said bonds and stock, less the commission and charges to be paid said Trust Company, are to be delivered by the said Trust Company to said Robinson.
The incorporation and organization of said Company and the transfer of said properties to it and the preparation of said bonds and mortgage, and all steps and proceedings connected therewith or leading up thereto, to be done and taken under tlie advice and subject to the approval of counsel to be selected by the said Missouri Trust Company of St. Louis, but all fees therefor to be paid by said Robinson or said American Lead & Baryta Company.
In Witness Whereof, this memorandum is executed by the said parties this 15th day of June, 1901.
Oblando E. Robinson,
Missouri Trust Company, of St. Louis,
By J. W. VanCleave,
Vice-President.

In this matter Robinson, as stated above, acted for the proposed corporation. It may be stated here that in all transactions mentioned herein Robinson, although acting in form individually, was in reality acting as" representative of the corporation and associates, and with their authority and approval.

On August 1, 1901, the promoters organized, under the laws of Delaware, the American Lead and Baryta Company (hereinafter spoken of as the Baryta Company) with a capital stock of $10,000',000'. On that day the stockholders of the Baryta Company resolved to take over the properties upon which Robinson and his associates held options, placing a value on them of $10,000,000'; to issue to Robinson therefor $10,000,000 in capital stock; to assume Robinson’s obligations to the Trust Company under the aforesaid contract of June 15th, and also to issue $1,500,000 of bonds secured by mortgage on all its said properties. Subsequently, on August 25th, 1901, the Trust Company agreed in writing with the Baryta Company and Robinson to transfer the properties purchased by the Baryta Company from Robinson to the Baryta Company, in consideration of the issue to Robinson of the $10,000,000' capital stock, as provided in the said resolution of the stockholders of the Baryta Company; this agreement, however, to be subject to the rights and lien of the Trust Company in such properties given by the foregoing contract of June 15th.

It resulted from the foregoing contracts that the Trust Company was under obligation to advance for tbe Baryta Company $500',000 to be used in purchasing properties for the company; the Trust Company to take the titles to the properties and hold same as security for its advances until the bonds and mortgage should be substituted therefor, at which time the properties should be deeded to the Baryta Company, and the bonds secured by mortgage to be thereafter held by the Trust Company as security. Pursuant to the foregoing, the Trust Company advanced from time to time, from June 15, 1901, to October 1, 1904, cash in varying amounts which aggregated, with interest, about $642,000. These advances were made prior to March, 1903, excepting three items aggregating about $140,000 advanced after March, 1903, to pay off underlying liens on properties purchased. The significance of these dates will appear later on. Shortly after the contract of June 15', 1901, set out above, Robinson had an interview in Philadelphia with the plaintiff, Donnelly, and procured his signature to the following subscription agreement:

St. Louis, Mo., June' 17, 1901.
This contract by and between John Morton and O. E. Robinson, parties of the first part, and sundry persons, firms or corporations, whose names are hereunto subscribed, parties of the second part,
Witnesseth: Said first parties own or have contracts to purchase approximately 33,000 acres of land in Washington county, Missouri. . [Here follows a description of the properties mentioned in the aforesaid contract of June 15th; and the contract then proceeds:]
The aforesaid properties are at present earning one hundred and sixty thousand dollars per annum.
Said first parties propose and agree to organize a corporation under the laws of Delaware, to be styled “The American Lead and Baryta Company,” hereinafter called the “Baryta Company,” with a capital stock of ten million dollars, which said capital stock shall be represented by the buildings and contracts of the first parties, as above set forth.
Said first parties further propose and agree to cause said “Bar.yta Company” to issue first mortgage five per cent ten-twenties gold bonds, aggregating one and one-half million dollars, secured by a first deed of trust on all the assets of said company. The trustee to be the Missouri Trust Company of St. Louis, Missouri.
Said bonds, or the proceeds of sale of same, to be used as follows:
To pay balance due on properties, besides stock....$ 750,0.00.00
To cancel National Mining and Milling Company bonds ...................................... 100,000.00
For treasury of “Baryta Company,” cash.......... 250,000.00
For treasury of “Baryta Company,” bonds. .■........ 400,000.00
Total .......................................$1,500,000.00
There is also to be placed in the treasury of said Baryta Company one million dollars of the stock of said Company.
Said treasury stock and bonds may be sold if, as when the' directors may determine and at such prices as they may fix, but under no circumstances shall either stock or bonds be sold at less than par, and treasury bonds shall be sold only for such purposes as shall add to the value equal to the amount of bonds sold.
TREASURY,
Cash ____:...........$ 250,000.00
Bonds ............... 400,000.00
Stock ............... 1,000,000.00
$1,650,000.00
Said second parties hereby subscribe for and agree to purchase at par the amount of said' bonds set opposite their respective names, upon the condition that they, the second parties, shall receive a bonus of stock of said “Baryta Company” of the par value of the amount of bonds subscribed for by them. Payments to be made by the said second parties to said Trust Company as and when called for by them, said second parties agreeing to accept from said Trust Company interim receipts for said bonds and stock until the same shall be ready for delivery by said Trust Company.
All stock to be pooled subject to terms to be agreed upon.
The original hereof shall be signed by said first parties, and counterparts may be subscribed by said second parties, but all together shall be taken and deemed one orginal instrument.
J. C. Donnelly, $25,000.00.

Donnelly was induced by Robinson to subscribe for the stock by means of Robinson’s representations, ■which in some material respects were false. Donnelly and Robinson were business friends. The former had implicit confidence in Robinson; so much so that he signed the subscription paper without reading it. Robinson took the paper from his pocket, read it partially to Donnelly, and after it was signed replaced it in his pocket, giving no copy at that time to Donnelly. He did not read the 'clause providing for payment to the Trust Company. Donnelly paid Robinson in September following $30',000, having increased the amount subscribed by $5,000, and subsequently received Robinson’s personal receipt therefor. Not satisfied with this, he demanded and received receipts from the Baryta Company, dated February 28, 1902, for the $30,000. He also'received the agreed .bonus of 300 shares of the capital stock of the Baryta Company from Robinson. From time to time thereafter Donnelly demanded the bonds, but was put off by various excuses by Robinson. On March 30, 1903, W. C. Gross, attorney for Donnelly, wrote the following letter to the Trust Company:

Philadelphia, March 30, 1903.
President Missouri Trust Co.,
St. Louis, Mo.
Dear Sir: —
In the month of September, 1901, my client J. C. Donnelly, of this city, purchased from the American Lead & Baryta Company, offices 205-9 Wainwright Bldg.; your city, $25,000 of the bonds of said Company, which he subsequently increased to $30,000, and for which he was to receive your Company’s receipt as trustee for the said American Lead & Baryta Co.
My client is anxious to know why he has not yet received your receipt or the bonds? Will you kindly let me hear from you at your earliest opportunity, and oblige,
Yours truly,
W. C. Gross.

The Trust Company made this reply:

St. Louis, Mo., April 4, 1903.
Mr. W. C. Gross,
Sibley Building, Philadelphia, Pa.
Dear Sir:—
In reply to your favor respecting the purchase by you from the American Lead & Baryta Company of this city of $25,000 of bonds of said Company, which you subsequently increased to $30,000, we have to advise that the bonds of said company have not yet been issued, and so have not been received by this Company.
My present advice is that they will be ready in a few weeks. Very truly yours,
Aug. Schlavy,
President.

The receipt of this letter from Cross was the first intimation to the Trust Company of the purchase by Donnelly. At that time, as stated above, the Trust Company had advanced to the Baryta Company the money for the purchase of the properties, excepting the amounts paid to remove underlying- liens. The $30,000 paid by Donnelly was used for the benefit of the Baryta Company. No part of it was paid to the Trust Company.

In November, 1903, Donnelly visited St. Louis, and, after investigation, filed this suit against the Baryta Company, Robinson, Morton (one of the original promoters), and the Trust Company. In the meantime, the properties as they were purchased were conveyed to the Trust Company. The bonds provided for in the contract of June 15, 1901, were never issued. In September, 1904, the Baryta Company was reorganized, its capital stock reduced to $3,500',000, and an issue of bonds to the extent of $900',000 authorized by its stockholders. On October 1, 1904, the properties held by the Trust Company were conveyed to the Baryta Company, and on the same day a first mortgage on all the properties was executed by the Baryta Company to secure an issue of $640,000 bonds, and such bonds and mortgage delivered to tbe Trust Company as security for the moneys theretofore advanced by the Trust Company. This indebtedness' to the Trust Company was subsequently, in March, 1905, put into the shape of notes made by the Baryta Company. The Trust Company now holds these notes, and as security for same holds the bonds and mortgage. Some payments were subsequently applied on this indebtedness.

The referee finds that there is due the Trust Company from the Baryta Company $580,008.09, with interest at 6 per cent from April 5, 1905'. The enterprise proved to be a failure. There are many other facts developed in the evidence and covered by the finding of the referee, but which, in the view we take of the case, are not material to the conclusions reached.

The foregoing statement is adopted, in the main, from the findings of the referee.

The amended petition on which the case was tried alleges a conspiracy between the defendants Robinson and Morton to organize a sham corporation for the purpose of fraud on purchasers of bonds; that the defendants (whether the Trust Company is included in this term it is hard to determine) by false representations, detailed at length in the petition, induced the plaintiff to subscribe $30,000' of bonds of a proposed issue of $1,500,000; that the- written contract referred to in the above statement of facts were fraudulent; that Robinson was the authorized agent of all the defendants to sell the bonds and collect therefor; that the conveyance by the Trust Company to the Baryta Company was fraudulent; that the bond issues of October, 1904, and transfer thereof to the Trust Company, were in fraud of plaintiff’s rights; that plaintiff was beguiled and delayed in asserting his rights by the false promises and excuses of defendants; that false statements were made by the officers of the Baryta Company in getting a license to do business in Missouri; that the $30,000 paid hy the plaintiff was used by the company in paying interest and taxes and in purchasing the properties of the company; that the conveyance to the Trust Company of the properties was as security for advances; that these properties are worth in excess of the debt to the Trust Company; that the defendants (evidently defendants other than the Trust Company) have a large equity in these properties; that Morton and Robinson are insolvent; that Robinson is a non-resident; that plaintiff has received no consideration for his $30,000; that the stock delivered to him is worthless, and that the bonds purchased by him have never been issued. Plaintiff alleges that he has elected to rescind the contract for the purchase of the bonds, demands repayment of his money and tenders in open court to said defendants the certificates of stock in the Baryta Company which had been delivered to him. He further alleges that the Trust Company is indebted to Robinson and Morton in the sum of $50,000.

The petition prays, first, that the subscription agreement under which plaintiff purchased" the bonds be declared fraudulent and void; second, that the conveyances of the properties to the Trust Company be declared mortgages for the security of the valid obligations owing by defendants to the Trust Company, and that the court ascertain the amount of such indebtedness; third, that Robinson and Morton.be enjoined from conveying or mortgaging any interest they may have in the properties conveyed to the Trust Company, or their equity therein; fourth, that the Trust Company be enjoined from conveying any of said properties; fifth, that upon final hearing, a decree be entered for plaintiff against defendants Robinson and Morton for $30,000 and interest, and that same be declared a lien upon all the right, title and interest of said defendants next in right and claim to the Trust Company, if it should be found that the Trust Company has a valid claim, otherwise to be declared a lien in advance of the claim of the Trust Company; sixth, that any conveyances of properties by the Trust Company to the Baryta Company be declared void as against plaintiff; seventh, that the judgment against Eobinson and Morton be declared a lien upon any amount that may be found owing by the Trust Company to defendants Eobinson and Morton; eighth, for other and further relief.

The petition is lengthy, and contains a great deal of redundant matter. The use of the expression ‘ ‘ defendants” is obscure and confusing. It is difficult to tell when it includes the Trust Company, and whether it is intended to charge the Trust Company as a ' party to the fraud. This much is clear: The plaintiff charges that his contract to purchase bonds was fraudulent on the part of defendants; that he rescinds and repudiates it, and demands a judgment for his money against Eobinson and Morton; his theory being that the Baryta Company was a sham, and that the two individuals mentioned were the real parties with whom he dealt, and he seeks to fasten a personal judgment against them as a lien upon their interest in the lands, subject to the valid claims of the Trust Company, and a lien upon any money owing them by- the Trust Com-' pany.

The cause, with the consent of the parties, was referred to Mr. James C. Jones to try all the issues. A large volume of evidence was introduced. The report of the referee is voluminous, and finds the facts in detail. His findings of fact are in the main accepted as accurate by the parties. They complain of his legal conclusions.

The referee finds as a matter of law, from the facts found, as appears from his opinion and recommendations to the court, that Donnelly was entitled to rescind the contract of subscription, and recover the amount paid by him; that the contract of June 15, 1901, gave to the Baryta Company the right to sell the bonds; that the subscription contract created an equitable mortgage in favor of Donnelly on the properties held by the Trust Company, equal in dignity with that of the company, and that, consequently, Donnelly is entitled to share in this mortgage pro rata with the Trust Company. Judgment was recommended-by the referee (1) against the defendants, exclusive of the Trust Company, for $30,000* and interest; (2) that if this judgment is not.paid within a fixed period, the plaintiff and the Trust Company be decreed to have a joint first lien on the properties mentioned in lieu of the first mortgage given' by the Baryta Company on October 1, 1904, and that a sale' be had thereunder; (3) that the proceeds be divided between plaintiff and the Trust Company pro rata, according to the respective amounts of their claims and to the-extent of such claims.

Exceptions were filed by both plaintiff and the Trust Company to the report of the referee, which were overruled, and judgment entered by the court-in accordance with the above recommendations. Motions for new trial filed by both the above parties were overruled, and both appeal. No exceptions were filed by either of the defendants Robinson, Morton and the Baryta Company.

The motion for a new trial filed by plaintiff fails to complain of the ruling of the court upon the exceptions to the referee’s report. The motion complains of the finding of the referee, and of the decree, but this is not enough. The purpose of the motion for new trial in this case is to call the attention of the court to its alleged erroneous ruling on the exceptions, so that the court may, if convinced of error, correct its rulings thereon. Failing, in the motion for new trial, to call the attention of the court to its action upon the exceptions, the error, if any in the ruling of the court upon, the exceptions, is waived. We have recently ruled upon this question in State ex rel. Wayne County v. Woods, 234 Mo. 16; Maplegreen Realty Co. v. Mississippi Valley Trust Co., 237 Mo. 365. It follows from the foregoing that the rulings of the trial court upon plaintiff’s exceptions are not before us for review, and the judgment on plaintiff’s appeal must be affirmed. Our rulings, however, on defendant’s appeal practically dispose of the points sought to be made by plaintiff’s appeal, with the same effect as if the motion for new trial were in proper form.

Addressing ourselves to defendant’s appeal: The appellant Trust Company complains of the decree upon two grounds. First, that it is not supported by the pleadings; and, second, that it permits the plaintiff to share in the securities held by the Trust Company, such relief not being justified by either the pleadings or the proof.

The referee virtually conceded that his finding went beyond the prayer of the bill; but he based his ruling upon the proposition that the plaintiff in a bill in equity is entitled to any relief authorized by the facts pleaded and proven. This proposition, however, does not quite meet the objection of the appellant. The objection is that the decree permits the plaintiff to repudiate and rescind the subscription contract, and at the same time grants him relief upon the theory that he retains the interest acquired by the contract. Plaintiff rescinds the contract, and demands his money back from the man who deceived him into making the contract, on the theory that a fraudulent contract is no contract. The finding of the referee and the decree of the court are in his favor. They permit him to rescind, and give him a money judgment against the defendants other than the Trust Company; but the decree also gives him (what he does not ask for in his petition) a lien, equal in dignity to that of the Trust Company, upon the securities in the hands of the Trust Company. This could only be on the theory that he owns, by reason of his subscription contract, a portion of the debt covered by these securities. In other words, by demanding and obtaining a lien against these securities, on a par with the Trust Company, he necessarily affirms the subscription contract. Obviously, he cannot in the same breath both repudiate and claim under the same contract. The decree is therefore inconsistent in this regard. [Hector v. Mann, 225 Mo. 228; Nanson v. Jacob, 93 Mo. 331.]

Upon the merits of the case, there is nothing in the evidence to impugn the good faith and fair dealing of the Trust Company. There is no basis for a personal judgment against that company. No such judgment is recommended by the referee nor decreed by the court. The only substantial question presented is, whether the plaintiff, by his subscription contract, obtained a pro rata share in the equitable mortgage given to the Trust Company by the contract of June 15, 1901.

The able and exhaustive report filed by the referee finds that the said contract of June 15th authorized the Baryta Company, acting through Robinson, to contract with Donnelly for the sale of $30,000' of bonds, and to receive the purchase price, and. that by such contract Donnelly acquired a right pro rata with the Trust Company in the equitable mortgage held by the Trust Company. This is the crucial question in the case so far as concerns the appeal. We think this conclusion of the referee was erroneous. The clause in the contract of June 35th on which it is based reads: “Said bonds may be sold by said American Lead and Baryta Company from time to time for not less than par, but all proceeds derived therefrom shall be applied to the payment of said loan and interest thereon, and proper fees and charges.” This clause must be construed in the light of the circumstances under which it was made, in connection with the entire contract, and in the light of common practice. There is nothing in the contract which contemplates subscription contracts for these bonds. They are to be issued, and the entire issue is to be delivered to the Trust Company. The provision for sale to the Baryta Company refers to bonds, not subscription for bonds, and plainly contemplates what is a matter of common practice, namely, that the bonds to be held by the Trust Company as security may, after they have come into its possession, be taken down by the pledgor and sold, upon paying their proceeds to the Trust Company to be applied upon the debt, thus reducing the debt and the security pro rata. The pledgor needed no provision in the contract to enable him to sell the property pledged, subject to the pledge. This clause in the contract empowered him to demand from the Trust Company the bonds themselves, upon paying their proceeds to the company.

It is urged that the power given to the Baryta Company to sell is unrestricted, and that the Trust Company trusted the Baryta Company to turn in the proceeds. The contract cannot fairly be so construed; certainly not to the extent of permitting the Baryta Company to make subscription contracts and collect the agreed price in advance of the delivery of the bonds. Such a construction would enable the Barytá Company, if it saw fit, to convert the entire security to its own use. Evidently the parties did not so construe the contract. The subscription contract itself, which the Baryta Company undertook to make with Donnelly, contains this provision: “Payments to be made by the said second parties [subscribers] to the said Trust Co. as and when called for by them, said second parties agreeing to accept from said Trust Company interim receipts for said bonds and stock until the same shall be ready for delivery by said Trust Company.” Donnelly, negligently and without legal excuse, signed this subscription contract without reading it or having this clause read to him. Having the opportunity to read it, and failing to do so, he is to be treated as if he had read it. Knowledge of it is imputed to hijn by the law. Here was notice to him that the bonds were to be delivered by the Trust Company, and that the purchase price was to be paid to that company. Disregarding this provision, Donnelly paid his money to one who had no right, as Donnelly must be held to have known, to collect it,- and to one who converted it to his own use. Donnelly acted in good faith, relying implicitly on his friend, Robinson, but he so acted at his peril. It is urged, further, that it mattered not that the money was paid to Robinson, and that if it had been paid to the Trust Company that company would have placed it to Robinson’s credit, and he would have thus controlled it. This reasoning is obviously wrong. If this, money had been paid to the Trust Company, it would have been necessarily credited to the debt owing by the Baryta Company, and thus all parties would have been protected.

But it is said the Trust Company was not a party to this trust agreement, and that the provision for payment to it was inserted by the Baryta Company, and could be waived by the party who created it. The Baryta Company could not waive the rights of the Trust Company after notifying Donnelly of such rights. The subscription contract plainly notified Donnelly that the Trust Company alone had the right to collect this money, and had control of and would deliver the bonds. No waiver by the Baryla Company could negative this notice. Nearly two years later, Donnelly, having learned of this provision for payment to the Trust Company, writes through his attorney to the Trust Company and demands the interim receipts, thus recognizing, after the Trust Company had made its advances, the force of this provision, and seeking too late to avail himself of its protection.

Recognizing that it was his duty to read the contract, and that he is hound by its contents as if he had read it, plaintiff attempts to establish the proposition that Robinson was the authorized agent of the Trust Company to make this subscription contract, and that therefore the Trust Company is bound by everything Robinson did, even to the extent of the false representations. To support this proposition plaintiff relies solely upon the clause in the contract of June 15th, set out above, providing that the Baryta Company might sell the bonds. "We have above ruled this proposition against the plaintiff, and nothing further need be said upon it. The Trust Company first knew of the subscription by Donnelly in March, 1903, when it received the Gross letter. At that time, under the agreement of June 15', 1901, it had advanced the money to buy the properties.

The proceedings subsequent to March, 1903, do not impair whatever rights Donnelly acquired by virtue of the subscription. The first lien of the Trust Company has never been surrendered or impaired. This appellant is not contesting the right of Donnelly to establish a lien next to that' of the Trust Company. The changes made in 1901 in the stock and bond issues do not affect Donnelly’s rights in this regard. Furthermore, as Donnelly now rescinds and repudiates the subscription contract, he is claiming no rights as a bondholder or subscriber for bonds, and, hence, is in no position to complain of changes in bond issues which do not affect his right to a lien next to that of the Trust Company. This ruling simply relegates plaintiff to the position taken by him in his petition, namely, claiming a right to a lien upon whatever interest Robinson, Morton or the Baryta Company has in these properties, subject to tlie lien of the Trust Company.

The judgment is reversed and the cause rémanded with directions to the circuit court to enter judgment for defendant Trust Company for costs, and to otherwise modify its decree in accordance with the views herein expressed.

Kennish, P. J., and Broten, J., concur.