author: GRAVES, J.

text:
    LORA L. MOSS, Appellant, v. WILLIAM M. FITCH et al.
    Division One,
    May 30, 1908.
    1. JURISDICTION: Resident of Another State: Personal Service: Alimony. No process issued by a court of tbis State, and personally served on a defendant in another State, can be the basis of a personal judgment. So that where plaintiff brought ¡suit for divorce against her husband who was at the time in Wyoming and he was personally served with summons in that' State, but not in this State, and did not enter his appearance, the court had jurisdiction to enter a decree granting plaintiff a divorce, hut no jurisdiction to award her a general judgment for alimony, even though he had property in this State. The substituted service provided for by Sec. 582, E. S. 1899, is of no broader legal scope than service by publication provided for by section 575, and service in either mode only gives the court jurisdiction over the res, which in a suit for divorce, without asking for a special judgment against specifically described property, is the divorce, the marital relation, the status of the plaintiff in relation to the defendant. [Disapproving certain observations on this point in Hamill v. Talbott, 72 Mo. App. 22, and 81 Mo. App. 210.]
    2. -: -: -: -: Citizen of this State. And this is the ruling, whether the defendant, personally served with process in another State, is in fact a citizen of this State or of the other State. Whenever process of a State court crosses the State line it loses its validity as an instrument upon which a general personal judgment can be entered.
    3. DEED OF TRUST: Redemption: Not Pleaded1 Except in Reply: Dower. Where the petition was a bill in equity to cancel two conveyances on the ground that they were fraudulent and on the further ground that one of them, a deed of trust, had been paid, and there was no allegation in the petition tending to indicate a purpose to redeem, the court cannot permit plaintiff, who had been divorced for the fault of her husband and had left her inchoate right of dower, to redeem the property from a deed of trust made by her and him. No cause of action to redeem is stated in such a petition. And the right to redeem being stated for the first time in the reply, it is inconsistent with the petition, and must be regarded as surplus matter. Plaintiff must recover on the cause of action stated in the petition or not at all.
    4. -: Fraudulent Foreclosure. Mills owned two tracts of land, one of which was a homestead, and he and his wife executed a valid deed of trust thereon. Thereupon plaintiff, the wife, secured a divorce and about that time Mills conveyed the lands by quitclaim deed to Ekin, to whom Mills was indebted, and who was about to attach his lands. Landis bought the deed of trust notes, paying his own money therefor, hut bought for Lahrman, who soon repaid Landis. Then the deed of trust was foreclosed and Landis bought in the land for Ekin, who was a client of Landis, but Lahrman knew nothing of Mills and Ekin. Held, that no fraud upon the rights of plaintiff was shown, and the foreclosure sale cannot be set aside.
    Appeal from DeKalb Circuit Court. — Now. A. D. Burnes, Judge.

      Affirmed.

      Hewitt & Hewitt and James T. Blair for appellant.
    (1) Plaintiff had an interest in all the lands in question, notwithstanding the fact that she had been granted a divorce from the defendant, Oliver Gr. Mills. The decree of divorce did not bar her dower. R. S. 1899, see. 2947; White v. Ingraham, 110 Mo. 483; Blandy v. Asher, 72 Mo-. 27; Turner v. Bennett, 70 111. 263. (2) The deed from Mills to Eldn was absolutely void, under section 3616, Revised Statutes 1899'. The unlawful design cannot be confined to one particular parcel of property; entire honesty and good faith are necessary to render the instrument valid. The taint as to part makes the whole void. Bump on Fraud. Conv. (3 Ed.), pp. 486, 487, 488; Bank v. Fry, 168 Mo. 520; State ex rel. v. Hope, 102 Mo. 410; Newberry v. Harper, 97 N. W. 438; 14 Am. and Eng. Ency. Law (2 Ed.), 252. (3) Courts of equity will set aside a sale under a deed of trust where the trustee has been guilty of fraud, partiality or misconduct. The trustee in this ease was antagonistic to- the plaintiff and owner of the equity of redemption, viz.: He was the attorney for the holder of the debt; he was advising and consulting against the plaintiff’s interest; he refused to collect any part of the $2,000 bid for the land; he refused to collect or hold the surplus over and above the amount of defendant Lahrman’s debt, which surplus amounted to more than $700; he refused to accept the amount of the debt, interest and cost before the sale, or even knock the land down to the holder of the equity of redemption at her bid, amounting to the entire debt, interest and cost of sale, including commission. Dunn v. McCoy, 150 Mo. 548; Pollihan v. Perclay, 181 Mo. 622; Howell Co. v. Burroughs, 180 Mo. 642; ICelsay v. Bank, 166 Mo. 173. (4) A trustee in exercising his duties and powers under a trust deed is trustee for the debtor, and he is hound to act in good faith; it is the duty of the trustee to pursue the course which will inure most to the benefit of the debtor. Good v. Comfort, 39 Mo. 325; Chelsea v. Chelsea, 491 Mo. 542; Tatum v. Holliday, 59 Mo. -428; Kelsay v. Bank, 166 Mo. 173. (5) The allegations of the plaintiff’s hill stand as confessed by defendant Mills, under the judgment by default. There can he no valid distinction between a judgment confessed and one tried and determined. A judgment by default is as conclusive as one upon verdict. "Williams v. Iron Co>., 30 Mo. App. 665; judgment by default, 24 Cent. Law J. 27; Yates v. Preston, 41 N. Y. 113; Phillips on Evidence, p. 270, note. (6) The petition distinctly charges conspiracy and fraud upon defendant Ekin, and notwithstanding the fact that he filed an answer denying said charges, he failed to appear and testify in said cause, or give his deposition in the cause, and failed to disclose his whereabouts to the plaintiff so that she might take his deposition, and the evidence shows that there was a studied effort on the part of defendant Landis and Ekins, attorney and representative, from the time of the quitclaim deed, purporting to have been made by Mills to Ekin, to withhold such knowledge, down to the trial of said cause. This must he regarded as a strong circumstance against both Ekin and defendant Landis. Mabary v. McCIurg, 74 Mo. 575; Ins. Co. v. Smith, 117 Mo. 261; Baldwin v. Whitcomb, 71 Mo. 658; Bent v. Lewis, 88 Mo. 462. (7) Defendants undertake to question the validity of the judgment for alimony, and in doing so, inject a constitutional question, and assail the statute, section 582, Revised Statutes 1899', which declares that judgment rendered against defendant upon ‘ ‘ service of process in conformity with said section shall he as effectual within the limits of this State, as personal service within this State, and judgments rendered against defendants thus served shall have the same effect and force within the limits of this State as judgments rendered against defendants personally served with summons in this State.” Defendants cannot be heard to question the constitutionality of this statute, unless they show that some right of theirs is impaired, or prejudiced thereby, for only those whose rights will be prejudiced by the enforcement of an unconstitutional act will be heard to question its validity. 6 Am. and Eng. Ency. Law (2 Ed.), 1090; State v. Seebold, 192 Mo. 730; State ex rel. v. McIntosh, 205 Mo. 602. (8) Defendant Ekin’s quitclaim deed from Mills being absolutely void, he has no right in the lands in question which may be impaired or prejudiced by the plaintiff’s judgment, and therefore has no right to complain. (9') Mills, the principal defendant in this case and the prime instigator and mover in all these fraudulent transactions charged in the bill, confesses the truth of the allegations. He also confessed the allegations of the petition for divorce in evidence, upon which service was had of the petition and summons issued upon an affidavit alleging that he had absented himself from his usual place of abode in this State so that the ordinary process of law could not be served upon him. There is no- evidence that Mills was not a resident of this State at the time of the service had upon him, and he would not be in a position to take advantage of the judgment for álimony and the execution and sale of the land under said judgment, himself. -The distinction which we desire to make aris’es from the citizenship of the party sought to be charged by the judgment. If he was a citizen of this State at the time of the service, he was amenable to the laws of this State. The fact of his being temporarily absent in another State at the time of the service would give him no right to assail the statute. He being a citizen of Missouri, this State had a right to prescribe by law how its citizens shall be brought into court. It would be otherwise, however, if he w'ere a citizen , in a foreign State. Hunt v. Baker, 33 Hun 578; Beard, v. Beard, 21 Ind. 321; Cassidy v. Leitch, 2 Abb. N. C. 315; Cillispe v. Ins. Co., 12 Cray 201; Black on Judgments, sec. 907.

      Spencer & Landis and Wm. M. Fitch for respondents.
    (1) It is incumbent upon the party alleging fraud to prove the same; it is never presumed. The failure of Ekin t0' testify does not change this rule. Hoeller v. Haffner, 155 Mo. 589. (2) Plaintiff cannot abandon his petition by setting up a reply containing, a new or different cause of action from that contained in the petition. Therefore, the trial court properly held the question of plaintiff’s right to redeem was not in issue under the pleadings. Stepp v. Livingston, 72 Mo. App. 179 ; Jackson v. Powell, 110 Mo. App. 252; Haynor v. Excelsior Springs, 108 S. W. 580. (3) Personal service executed beyond the borders of this State has the force and effect of service by publication only, consequently a personal judgment for alimony with such a service is void, as the court was without' jurisdiction to render the same. Hedrix v. Hedrix, 103 Mo. App. 40; Murdock v. Hillyar, 45 Mo. App. 287; Could v. Crow, 57 Mo. 575; Russell v. Crant, 132 Mo. 161. And there is no law supporting the attempted distinction made by appellant as to whether defendant Mills in the divorce proceeding was in fact a resident or a nonresident. (4) The court found that the proceeds from the notes at the bank, when paid, were promptly applied on the $1,600 indebtedness. The testimony of Mr. Jones, the banker where they were deposited, was that these notes were placed as collateral to secure the $1,600 note; hence, the proceeds conld not have been properly applied elsewhere. In addition to that, if there was no agreement as to where it should be applied, the party taking it as security would have the right to apply it to his own advantage. McMillan v. Grayston, 83 Mo. App. 425; Thorn v. Hunkins Lime & Cement Co., 158 Mo. 272. (5) A suit to redeem from a foreclosure sale can only be brought in case the mortgagor has complied with the provisions of the statute with reference to the giving of security. Sturgeon v. Mudd, 190 Mo. 209. (a) Nothing short of the tender of the debt and costs before sale would be sufficient to stop the foreclosure sale. Snow v. Bass, 174 Mo. 149. (b) And in order to defeat a sale, this tender must be kept good. Hudson Bros. Com. Co. v. Glencoe Sand & Gravel Co., 140' Mo. 103.
   GRAVES, J.

— Action for injunction and for the cancellation of a certain quitclaim deed and a certain deed of trust.

From December 2, 1900; to October 23, 1902, the plaintiff was the wife of defendant Oliver Grant Mills, by whom she had one child. At this latter named date she was divorced from Mills and had judgment for alimony in gross in the sum of $2387.50, and for custody of the child. Judgment was by default. In this divorce proceeding the defendant Mills was not served with process in this State, but was personally served with summons in the State of Wyoming, under our statute providing for such a service. Prior to the marriage Mills was the owner of seventy-five acres of land in DeKalb county. After the marriage he purchased from Sarah R. Ross et al. for a home for himself and wife a ten-acre tract of land, for $2,000; upon which there was an incumbrance of $400 due to James Ewart from Ross. In order to pay for this- ten-acre tract Mills borrowed $1,600 from the said Ewart. To secure this last-named sum Mills and plaintiff, his then wife, executed a note and deed of trust, which covered both tracts of land. A. B. Chrisman was the trustee in this deed. Later Mills, by quitclaim deed, prior to the divorce, but about the time thereof, conveyed all the property to defendant Ekin. This deed was acknowledged before a notary public in Wyoming. Defendant William M. Pitch was the successor in trust of Chrisman. After the judgment for alimony was entered plaintiff caused execution to be issued and all the land sold and the same was bought in by her.prior to the.institution of this suit.

The petition sets out most of the facts herein above stated. It then charges a conspiracy to defraud her and other creditors of Mills as having been entered into between Mills and Ekin, a resident of Wyoming, when the quitclaim deed was made, and charges said transaction as a fraud, and that Ekin really held the property for Mills. The remainder of the petition and the prayer thereof is as follows:

“That thereafter, to-wit, on the — day of March, A. D. 1903, the trust deed hereinbefore mentioned, as having been executed by defendant Mills and this plaintiff to A. D. Chrisman for use of James Ewart, being still outstanding and in the hands of said Ewart and being then and there a legal debt and liability in the sum of twelve hundred and thirty-five dollars, and no more, of and against said Oliver G-. Mills, defendant; that said Mills in the further prosecution of his fraud against this plaintiff and toward the consummation of his wicked, wrongful and fraudulent design against the lawful right of this plaintiff, conspired with the defendant Lahrman and Landis to aid and assist him, the said Mills, whereby the said Lahrman and Landis, for a consideration to be paid by said Mills to said Lahrman and Landis, agreed to take the money which said Mills then and there promised to furnish suffieient to discharge the trust deed and debt hereinbefore mentioned, due and owing to said James Ewart as aforesaid, and purchase said debt and security from said Ewart, and take a pretended assignment thereof in the name of said Lahrman, and foreclose said trust deed and turn the proceeds from said sale over to said Mills and then and thereby defeat the lawful rights of plaintiff and defraud her of the title to said lands.

“Plaintiff says that in pursuance of and toward the fulfillment of said agreement and consummation of said fraud, said Landis paid said money to said Ewart and took said security in the name of said Lahrman, and the said Lahrman, toward the fulfillment of his unlawful, wicked and fraudulent agreement, is now pretending to be the lawful owner of said debt and security aforesaid; and in the further prosecution of said wicked and fraudulent and unlawful agreement so entered into as aforesaid between said Lahrman, Mills and Landis, said Lahrman, under and by virtue of the authority vested in the trustee, and his successors in trust mentioned in said trust deed, has appointed one William M. Pitch as successor in trust to said Chrisman, and said Pitch as said trustee is, at the instance and request of said Lahrman, the pretended owner of said debt and security, threatening to sell all of said lands under said trust deed, and is now advertising said lands for sale in the DeKalb County Democrat, a newspaper printed and published in the city of Maysville, DeKalb county, Missouri, as will more fully appear by.a copy of said advertisement hereto attached, marked ‘Exhibit B’ and made a part hereof, and will, if not restrained from so doing, sell said lands on the 31st day of August, A. D. 1903, and then and there and thereby cast a cloud upon the title of this plaintiff’s said lands, and irreparable injury and damage would thereby result to this plaintiff. That she is without adequate and efficient remedy at law.

“Wherefore, plaintiff prays that a restraining order and injunction he issued directed against said Wm. M. Fitch, trustee as aforesaid, and defendant Lahrman and each of them and that they and each of them, their agents and representatives be enjoined and restrained from making said sale, or selling, assigning or disposing of said debt and security or in doing anything further in the premises toward the consummation of their fraudulent acts, until this cause can he heard upon its merits, and that upon a hearing of said cause, said injunction and restraining order may he made perpetual and the aforesaid quitclaim deed he declared null' and void, held for naught, and that said debt mentioned and described in the trust deed he declared paid off and discharged and the lien of said, trust he declared discharged and satisfied and held for naught and for all such other orders, judgments and decrees granting relief as shall be meet and proper in the premises.”

Defendants Fitch, Lahrman, Ekin and Landis file answer in which they say:

1. They admit the marriage of plaintiff and Mills on the date alleged.

2. They deny that there has been a legal dissolution of the marriage, because of certain defects in the proceedings not necessary to mention at this point.

3. They aver, the judgment for alimony to he void.

4. They admit that Mills at one time had title to all the property described.

5. They admit the execution of the deed of trust as pleaded, and aver that it is a subsisting lien upon the land, and in this connection further say: “These defendants further answering expressly deny that said Lahrman and Landis, or either of them, assisted the said Oliver O. Mills, directly or indirectly, to pay off the said note secured by said trust deed; but that defendant Landis himself purchased the said note from James Ewart, for value received, out of his own funds; that afterwards he assigned the said note to said Lahrman, for value received, and that the said Lahrman then became the absolute owner thereof, and that neither the said Mills nor the said EMn had any interest in the said note whatever.”

6. They aver that A. B. Chrisman refused to act as trustee and that under the-power granted by the deed of trust Lahrman appointed defendant Pitch as trustee, who advertised and sold the premises, and that defendant EMn, being the highest and best bidder, became the purchaser at the sale.

7. They admit that the execution sale was made and that deed was made to plaintiff, but aver that the judgment execution and all proceedings thereunder were void and that plaintiff in trying to enforce said judgment is doing so in violation of section 1, of article 14, of the United States Constitution and of the Constitution of Missouri, and the laws of this State.

8. They admit the record of plaintiff’s deed and aver it casts a cloud on the title of defendant EMn.

9. Defendant EMn expressly denies that the quitclaim deed was fraudulent, or voluntary or without consideration, or was made in pursuance of a conspiracy to injure or defraud plaintiff, but avers that it was made in good faith and for a valuable consideration.

10. All things not expressly admitted were expressly denied by all the defendants.

The prayer of the answer is as follows:

‘ ‘ Wlierefore, these defendants pray this honorable court to set aside and for naught hold the judgment rendered against defendant Mills and in favor of plaintiff, which is alleged in plaintiff’s bill and in this answer, and that the deed from William Dnncan as sheriff herein and in the said hill referred to, he cancelled and for naught held, and that the quitclaim deed from Mills and Ekin, herein and in said hill referred to, he held good, and that the said trust deed, and the foreclosure sale thereunder and trustee’s deed executed thereon, he confirmed and made valid and binding on all concerned; and that plaintiff’s said bill be dismissed and for naught held, and for their costs herein laid out and expended, and for all other relief, orders and decrees meet and proper in the premises.”

There was a motion to strike out a part of the answer, but nothing seems to have been done with it, and plaintiff filed reply, the substance of which was:

1. General denial of all allegations of new matter and a prayer for judgment as in the petition prayed.

2. That if the allegation in the answer be true, that Lahrman purchased the note secured by the deed of trust, and that neither Mills nor Ekin had any interest therein, “the said Lahrman was an inter-meddler and not therefore entitled to the relief prayed, nor for any relief, and it would he inequitable and unjust to permit said defendant Lahrman to retain title obtained by the foreclosure of the deed of trust,” and then the plaintiff asks to be permitted to redeem upon the payment of the note, interest, and costs, including expenses of foreclosure, and that she have reasonable time in which so to do, and for all proper relief.

It should be stated here that no temporary injunction was granted because plaintiff failed to give a $600 bond therefor as required by the court and the sale under deed of trust took place prior to the trial.

The court nisi at request of plaintiff made a finding of facts in these words:

“The court finds that on the — day of---Oliver Grant Mills was the owner of and had the fee-simple record title to the property in question, and that on the 18th day of July, 1901, he executed a deed of trust on said property to one A. B. Chrisman as trustee for James Ewart for the sum of $1,600, executing his note therefor, and that his wife, Lora Mills, joined with her husband in the execution of the said deed of trust, also the note given in the sum of $1,600.

“That on the 18th day of July, 1901, the said Oliver Grant Mills and wife, Lora L. Mills, executed a deed of trust to one James Ewart upon the following described real estate, being all the real estate in suit in ‘Exhibit A;’ and that the said Oliver Grant Mills by himself and without his wife Lora Mills joining with him in the deed, executed a quitclaim deed to James K. Ekin on the 24th day of March, 1902, upon the following described lands, being all the lands in suit. The court finds from the facts and from the record in this case that the said Oliver Grant Mills executed a quitclaim deed to James K. Ekin fraudulently and for the express purpose of cheating and defrauding this plaintiff, and his creditors; the court does not find from the evidence that said James K. Ekin, or any of the other defendants herein, joined in or participated in said fraud, but finds the other parties connected with this transaction were not guilty of any fraud in regard to the transfer of the said real estate. The court further finds that the aforesaid deeds of trust were executed regularly and in a legal way and that there was no fraud in the transaction. The court further finds that, at the sale of the said real estate the plaintiff herein, through her attorneys and agents, offered to redeem said property by paying the debt and interest as set up in plaintiff’s reply, but the court determines that the plaintiff cannot ask for that relief in a reply. The court finds that in all other respects the sale of the said real estate was conducted in a legal way. The court further finds that this plaintiff. was ■ divorced, from her first husband, Oliver Grant Mills, in this court on the 23d day of October, 1902, and that the service in said case was personal service upon defendant in the State of Wyoming, and that judgment was rendered in said case for alimony in the amount of $2,387.50.

The court further finds that the court was without jurisdiction to enter up judgment for alimony in said divorce case. The court further finds that upon the judgment rendered in said divorce case an execution was issued out of this court and levied upon the lands in question and sold under said levy, and that the purchasers at said sale who purchased the lands under the judgment for alimony in said case acquired no title, as the court was without jurisdiction to enter alimony in said case.”

. Judgment was entered dismissing the plaintiff’s bill and adjudging the costs against her, from which, after unsuccessful motion for new trial, plaintiff has appealed.

I. To determine just where the plaintiff stands in this case we take up two preliminary questions. First, what is the status of the judgment for alimony-under which the plaintiff, on execution sale, purchased the property? To our mind, whatever may be the rule in other States, the rule is firmly established in this State that no personal judgment can be had on process of this State, executed outside of the State, or upon service by publication. The service provided for by section 582, Revised Statutes 1899, is a substituted service for that of the service provided for in sections 575 et seq., which last sections provide for orders of publication. To our mind the Legislature had no intent of giving the service in section 582 a broader scope than that of publication, but was simply providing another method of accomplishing the same thing, i. e., giving some kind of a notice that the court had seized the res, whether that res was property or the marriage status, and would proceed to determine the rights of the parties in and to the res, which was within the jurisdiction of the court. There is no purpose in either service to acquire jurisdiction of the person so as to enter a personal judgment.

In the early case of Smith v. McCutchen, 38 Mo. l. c. 417, this court said: “No sovereignty can extend its powers beyond its own territorial limits to subject either persons or property to its judicial decisions. Jurisdiction must be founded either upon the person of the defendant being within the territory of the sovereign where the court sits, or his property being within such territory; for otherwise there can be no sovereignty exerted, upon the known maxim, Extra territorium jus dicenti impune non paretur. Even, therefore, should a Legislature of a State expressly grant such jurisdiction to its courts over persons or property not within its territory, such grant would be treated elsewhere as a mere attempt at usurpation, and all judicial proceedings in virtue of it held utterly void for every purpose. [Story, Confl. L., sec. 539.] A judgment obtained against a party who has no notice is void. U is unnecessary to cite adjudged cases in support of principles so well settled as these. ’ ’

Following this is the case Latimer v. Railroad, 43 Mo. l. c. 109, where Wagner, J., said: “The well-established and settled principle is, that to give a court jurisdiction, a real defendant, against whom the plaintiff is entitled to a judgment, must be found and served with process within the limits of the jurisdiction; or some property or chose in action of his must be found there upon which the court can proceed in rem. Every attempt on the part of one nation or State, by its Legislature, to grant jurisdiction to its courts over persons or property not within the territory, is regarded elsewhere as mere usurpation; and all judicial proceedings in virtue thereof are held utterly void. This proceeds upon the known maxim, ‘Extra territorium jus dicenti impune non paretur.’ [Story Confl. Laws, sec. 539.]”

Again, in a case very much like the one at bar, the case of Ellison v. Martin, 53 Mo. l. c. 578: “A judgment on order of publication can only be given in proceedings in rem.' A divorce suit is a proceeding in rem-, and the res is the status of the plaintiff in relation to the defendant, to be acted on by the court. This relation being before the court in the person of the plaintiff, the court acts on it, and dissolves it by a judgment of divorce. But there was nothing before the court to act on in regard to alimony in this case. Whether property can be brought before the court by describing it in the petition, and demanding a judgment in rem for alimony, is a question we aré not now called upon to decide. This judgment was a general judgment in personam, and such judgments cannot be rendered in this State merely on publication of notice.” In this case Parmelia Martin had sued her husband, French Martin, for divorce and alimony. The service was by publication. Judgment went for divorce and alimony and under the judgment for alimony an execution was issued and the land sold to Ellison. This court declared both the judgment and deed void.

And later, Sherwood, J., in the case of Wilson v. Railroad, 108 Mo. 588, reviews all the authorities. There the process, for such Judge Sherwood holds it to be, was a notice and motion which was personally served in New York, in a proceeding in Missouri. In that case the learned judge said: “It will not be intended that the statute authorizes such a method of service as that on which plaintiff relies; hut if the statute did, in terms, require the personal service of such notice outside of the State on a non-resident in order to the rendition of a personal judgment, or its equivalent, on a money demand, such statute would be wholly void as to such extra-territorial service. It scarcely requires to be stated that this position is sustained by abundant authority; indeed, it seems to be questioned by none.” On page 600, he further says: “But, for reasons already given, such service, though personal, was valueless, because made outside of our jurisdiction.” And further on in the opinion, he says: “Any process, whether notice, writ or motion, which when served upon a party will have the effect to authorize an order or judgment in personam against him, upon the rendition of which a general execution may issue, leviable upon all the property in the State of which he may be possessed, cannot be regarded in any other light, so far as that party is concerned, than as an independent proceeding. '"Were such a party sued in another form of action, no doubt could be entertained of the necessity for notice, proper in form and substance, and served within the proper jurisdiction in order to its validity. ’ ’

The St. Louis Court of Appeals, in a case like the one at bar, Hedrix v. Hedrix, 103 Mo. App. l. c. 46, says: “In the opinion of this court a true and correct interpretation of section 582 of the statutes does not contemplate -nor attempt to authorize, nor does it purpose a personal judgment based upon service of process on defendant beyond the boundaries of the State of Missouri. Whatever views at times may have prevailed in other states (2 Freeman, Judgments (4 Ed.), sec. 567), the courts of Missouri early recognized the principle that the authority of a judicial tribunal was confined to the territorial limits of the State establishing it, and the line of decisions in this State recognizing that involuntary jurisdiction could he acquired of the person of the defendant only by service of process upon him within the limits of the State, is unbroken. [Smith v. McCutchen, 38 Mo. 415; Wilson v. Railroad, 108 Mo. 588; Latimer v. Railroad, 43 Mo. 105; Ellison v. Martin, 53 Mo. 575.] The case of Ellison v. Martin, 53 Mo. 575, differed from the case at bar, only in the respect that service was had upon the defendant by publication in lieu of the method of personal service now substituted by statute, and resorted to herein. The judgment for alimony therein was held void, as was the title obtained by execution sale thereunder, and the court in turn holds that the Legislature never contemplated that general judgments might be rendered merely on publication of notice without appearance of defendant. Alike on principle and authority the judgment for alimony in the divorce proceeding was void, the garnishment writ was rightly quashed, and the judgment of the lower court is affirmed.”

So that we repeat that whatever may be the holdings elsewhere, our court places the acquisition of jurisdiction upon which a personal judgment can be rendered, upon the fact of personal service of the party with process in this State. In other words, no process issued by the courts of this State and served upon the party defendant in another State can be the basis of a personal judgment. And this is true whether the party in fact is a citizen of this State or of another State. To be more explicit, when our process crosses the State line it loses its vitality as an instrument upon which a personal judgment can be entered. We are cited to the case of Hamill v. Talbott, 72 Mo. App. 22, and the same case, 81 Mo. App. 210, from the Kansas City Court of Appeals. There are some observations in these two opinions which are at variance with the views heretofore announced by this court and the St. Louis Court of Appeals, supra. To the extent that they announce a different view, they are and should be overruled. In the case at bar there is no sufficient evidence to show that Mills entered appearance or otherwise submitted to the jurisdiction of this court.

From this it follows that plaintiff’s judgment for alimony and all proceedings thereafter as to the execution and sale were absolutely void and she acquired no title to the land by reason thereof.

. II. But it is urged that although the deed under the execution conveyed no title, yet plaintiff having been divorced for the fault of the husband, she had left her inchoate right of dower and that this status gave her the right to redeem. The trial court without passing upon this particular question held that plaintiff’s right to redeem was not an issue under the pleadings. In this we think the court was correct. The second paragraph of the replication attempted to state a cause of action to redeem from a mortgage. The petition was for the cancellation of two instruments on the ground of fraud, and the further ground that the mortgage had been fully paid. There were no allegations in the petition tending to indicate a purpose to redeem from a deed of trust sale. No such cause of action was stated therein.

Under the codes the nature of replies are thus stated in 18 Ency. Plead. & Prac., 690: “The office of a reply is to deny the facts alleged as defenses or to allege facts in avoidance of such defenses, and, while not abandoning the cause of action as originally pleaded, to fortify it by the new facts rendered necessary by the allegations of the answer.” At page 707, the same authority says: • “ The plaintiff cannot introduce in his reply a cause of action different from that which he states in his complaint or petition; in other words, he cannot, after answer is made, abandon the cause of action set up in the complaint and make an entirely new cause of action in the reply. Where the complaint is defective or does not contain facts sufficient to constitute a cause of action, a reply cannot cure it by supplying the necessary allegations, nor can it in any manner enlarge, in ordinary cases, the claim for relief alleged in the complaint.”

And if the reply contain matter inconsistent with the complaint it will be taken as surplusage. At page 708 of the same authority, the rule is stated thus: “Where, in addition to new matter avoiding the answer and supporting the complaint, the reply contains surplus averments inconsistent with the complaint, the surplusage will be disregarded and is liable to be stricken out on motion. ’ ’

These rules are supported by abundant authority.

In Crawford v. Spencer, 36 Mo. App. l. c. 82, Judge Thompson said: “A party must, under our system of pleading, recover upon the cause of action stated in his petition, and he cannot recover upon a cause of action stated in his reply. The provision of the statute above quoted was not, we think, intended to change the office of a reply, which is that of a denial or a confession and avoidance of matter set up in the answer.”

Smith, P. J., in Stepp v. Livingston, 72 Mo. App. l. c. 179, said: “If it were disclosed by the record that the plaintiff recovered on a cause of action stated in his reply, but not in his petition, it would be our duty to reverse the judgment.”

And to the same effect is the language of Johnson, J. , in Jackson v. Powell, 110 Mo. App. l. c. 252, wherein it is said: “We agree with appellant that a plaintiff must recover upon the allegations of his petition, not upon a cause of action pleaded for the first time in his reply. ’ ’

This court, in Hill v. Mining Co., 119 Mo. l. c. 30, uses this language: “But, further, as to the alleged contract made in New York. Plaintiff based Ms right to relief upon it, bnt yet took a departure from it in his reply, set up an alleged estoppel, and was permitted, as shown by paragraph 9 of the decree, to recover thereon. But, of course, this was erroneous. The plaintiff had a right to relief, if at all, on his alleged contract in writing. Failing in that, he had no standing in court, because of the provisions of the Statute of Frauds. [Ringer v. Holtzclaw, 112 Mo. 519.] See, also, Lanitz v. King, 93 Mo. 513, and Mohney v. Reed, 40 Mo. App. 99, as to introducing matter in reply which belongs to the petition.”

The trial court did not err in refusing to consider the question of redemption. It was a question raised for the first time in the reply, and is inconsistent with 'the allegations and prayer of the petition.

III. With these two questions eliminated from the record, but one question further need be mentioned, and that is the alleged fraud in the deed of trust and the foreclosure sale. The matter of the quitclaim deed can be entirely omitted, except in so far as it may have been a link in the circumstances leading up to the foreclosure sale. By this we mean that we need not discuss the validity of this deed on the ground urged that it cannot stand, because it conveyed with other lands the homestead, and the wife did not join therein. It would serve no’ good purpose to review all the testimony in detail as to this deed of trust. That there was no fraud in the execution of the deed of trust stands practically admitted. That there was a right to foreclose is not denied. The evidence shows that Landis bought these notes for Lahrman, paying for them at the time himself, but shortly thereafter was repaid by Lahrman. Lahrman knew nothing of Mills and Ekin. It appears that Ekin held notes of Mills to the extent of $1,500, and was about to attach the Mills’s lands, when Mills made the quitclaim deed in question. Landis bought the land in for Ekin, tlnnking that be would save Ms client some money. Ekin was a client of Landis. Without going further into the evidence, which we have examined thorougMy, we are satisfied that the finding of the court nisi upon this question is well sustained. It is the duty of a party alleging fraud to show it. These conclusions make it unnecessary to discuss other questions in the briefs.

It follows "that-the judgment should be and is affirmed.

All concur, except Vallicmt, P. J., absent.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    MISSOURI PACIFIC RAILWAY COMPANY v. CONTINENTAL NATIONAL BANK and NATIONAL BANK OF COMMERCE, Appellants.
    Division One,
    May 30, 1908.
    1. PLEADING: Amendment: Departure: No Exceptions: Review. Where no exception was saved to the filing oí an amended petition filed after the evidence was in, and no motion was made to strike out on the ground of departure, the original petition, which was not introduced in evidence and was not preserved in the bill of exceptions, became functus officio, and though printed and brought to the Supreme Court by the appealing defendants, it will not be considered in aid of defendants’ point that plaintiff by its amended petition abandoned its original theory.
    2. -: Bank Deposit. A petition that avers a bank doing a general banking business and a fund coming into its possession belonging to a corporation in effect standing in the relation of depositor, that is, a fund payable to the corporation’s order and credited to it on the bank books, pleads all the constitutive- elements of a bank deposit.
    3. -: -: Upon Condition. The mere fact that payment by the bank to the corporation was at the outset -subject to a condition, if there came a time when the condition precedent to payment was performed and was out of the way, should not be held conclusive that the relation of banker and depositor did not exist. Especially should that be the holding if, after-the condition was performed, the bank recognized that it held the fund subject to check and honored checks drawn against it by its owner as a depositor in the due course of banking.

      4'. -: -: Bookkeeping. Justice is not to be entangled and strangled by the refinements .of bookkeeping — especially ° refinements adopted by a bank in reference to a fund without consulting the owners of the fund. The thing to be got at is the legal effect of the thing done.
    5. -: -: Trust Fund: Wrong Theory. Where the evidence establishes the facts that the bank assumed the relation of banker, thait plaintiff’s predecessor assumed the relation of depositor, and that the fund assumed the form of a deposit payable on the order of the depositor or its succeeding owner, and the petition is broad enough to admit that proof, the judgment will be affirmed on the theory that the relation of banker and depositor existed, although appellants contend the trial court put its finding alone on the theory that the bank was a trustee and the fund a trust fund. The reason for the decision below is of no consequence if the judgment is within the pleadings and is supported by the proof.
    G. LIMITATIONS: Bank Deposit: Demand. The Statute of Limitations does not begin to run in favor of a banker as against his depositor before demand of payment by, and a refusal to pay on, the depositor’s order. The deposit is not due until demand is made; hence, the demand and a refusal to pay set. the statute to running.
    7. CREDIBILITY OF WITNESSES: Questions for Trial Court. Where it is sought to draw unfavorable inferences from the destruction and spoliation of the bank books in which the account of the depositor was kept, and from facts showing that the chief witness against the bank had a contractual pecuniary interest in the suit, it will be held that these questions go to the credibility of the witnesses or affect the weight and quality of the proof, and were for the trial court and not for the appellate court.
    Appeal from St. Louis City Circuit Court — Ho». Warwick Hough, Judge.
    Affirmed.

      8. N. & 8. C. Taylor for appellants.
    (1) The agreement by the hank to pay $24,406.50 when the Pacific Railroad had laid its tracks to Concordia; and to pay $24,406.50 when the tracks were laid to Lexington, was not in writing, and, therefore, was affected by the five-year Statute of Limitations. R. S. 1899, sec. 4273; State ex rel. v. Grigsby, 92 Mo. 419; Landis v. Saxton, 105 Mo. 486; Shelby County v. Bragg, 135 Mo. 295; Menefee v. Arnold, 51 Mo. 536; Reyburn v. Casey, 29 Mo. 129; Moorman v. Sharp, 35 Mo-. 283; Curtis v. Sexton, 201 Mo. 230; Stark v. Zehnder, 204 Mo. 443. If, however, this court should hold that the written entry in the ledger of the bank constituted a contract in writing, then the ten-year Statute of Limitations would apply and bar recovery. (2) When an obligation to pay is complete, the cause of action has matured, and formal demand is unnecessary as a condition precedent to bringing suit, and the statute then begins to run. Clarke v. Sinks, 144 Mo. 453; Landis v. Saxton, 105 Mo. 490'; State ex rel. v. Grigsby, 92 Mo. 419; State ex rel. v. Shires, 39 Mo. App. 567; Easton v. McAllister, 1 Mo. 662. (3) The election of one to perfect a demand must be exercised within a reasonable time. It cannot be extended beyond the period of the Statute of Limitations. Landis v. Saxton, 105 Mo. 490; Jameson v. Jameson, 72 Mo. 642; O’Fallon v. Kerr, 10 Mo. 554; Easton v. McAllister, 1 Mo. 662; Kraft v. Thomas, 123 Ind. 513; Railroad v. Township, 36 Kan. 628; Palmer v. Palmer, 36 Mich. 488. (4) If, for argument, we assume that a demand was necessary, before an action could have been maintained for the $5,406.50, still that would not stay the running of the statute, because where a demand is a condition precedent to a right to sue, such demand must be made within the period of limitation, else the action is barred. Landis v. Saxton, 105 Mo. 491; Easton v. McAllister, 1 Mo. 662; Kraft v. Thomas, 123 Ind. 513; Newsom v. Board of Education, 103 Ind. 526; High v. Board, 92 Ind. 580; Codman v. Rogers, 10 Pick. 112; Morrison v. Mullin, 34 Pa. St. 12; Railroad v. Burlingame, 36 Kan. 628; Palmer v. Palmer, 36 Mich. 488; Ball v. Railroad, 62 Iowa 753; Sanford v. Lancaster, 81 Me. 434; Wood on Limitations (3 Ed.), sec. 125. (5) The statute begins to run against “a promissory note payable on demand” the day of its date, and the action will be barred in ten years after its date. Jameson v. Jameson, 72 Mo. 642; O’Fallon v. Kerr, 10 Mo*. 554; Easton v. McAllister, 1 Mo. 662; Palmer v. Palmer, 36 Mich. 487; Hall v. Litts, 21 Iowa 596; "Ware v. Hewev, 57 Me. 391; Kraft v. Thomas, 123 Ind. 513. Turner v. Mining Co., 74 Wis. 358, holds: “The law is well settled that a promissory note payable on demand, whether with or without interest, is due forthwith, and an action thereon against the maker is barred by the Statute of Limitations if not brought within the time prescribed by statute after its date.” ■Wheeler v. Warner, 47 N. Y. 5191; Howland v. Edmonds, 24 N. Y. 307; Burnham v. Allen, 1 Gray 496; Sylvester v. Crapo, 14 Pick. 92; Taylor’s Adrn’rs v. Whitman’s Adm’rs., 3 Grant’s Cas. 138; Larason v. Lambert, 12 N. J. Law, 247; Curran v. Witter, 68 Wis. 16; Schriber v. Richmond, 73 Wis. 12; Mitchell v. Easton, 37 Minn. 335; Hill v. Henry, 17 Ohio 9; Caldwell v. Rodman, 5 Jones, L. 139; Wilks v. Robinson, 3 Rich. Law 182. (6) An action for money had and received is barred by the five years’ limitation, and plaintiff’s ignorance of his cause of action will not affect the running of the statute in the absence of concealment, etc. Shortridge v. Harding, 34 Mo. App. 354; Garrett v. Conklin, 52 Mo. App. 654; Bueckner v. Patterson, 16 Ky. 234; Webster v. Bible Soc., 50 Ohio St. 1; Douglas v. Corry, 46 Ohio St. 349. Where a debt is payable on demand, the statute begins to run immediately after the debt is incurred, for the courts generally hold that a debt payable on demand is due immediately, so that an action can be brought at any time without any other demand than the suit, and the statute begins to run at once. Collins v. Trotter, 81 Mo*. 275; O’Neil v. Magner, 81 Cal. 631; Seward v. Hayden, 15*0 Mass. 15*8; Citizens’ Savings Bank v. Yaughan, 115' Mich. 156; 7 Ency. Law & Pro., 848; Wood, Limitations of Actions' (3 Ed.), see. 124; 2 Dan. Negó. Instr. (5 Ed.), 1698; Fenno v. Gay, 146' Mass. 118; Hitching v. Edmonds, 132 Mass. 338; Cousins v. Partridge, 791 Cal. 224; Henry v. Roe, 83 Tex. 446; Swift v. Trotti, 52 Tex. 498; Bartholomew v. Seaman, 25 Hun 619’; Erwin v. Brooks, 111 N. C. 358. (7) The statute does not run against technical, continuing express trusts, such as fall within the peculiar and exclusive jurisdiction of courts of equity. Every trust which admits of an action at law for its enforcement is subject to the statute. Keeton’s Heirs v. Keeton’s Admr., 20 Mo. 538; Johnson v. Smith’s Admr., 27 Mo. 592; Hunter v. Hunter, 50 Mo. 450; Ricord’s Adm’x v. Watkins, 56 Mo. 554; Landis v. Saxton, 105 Mo. 489; Shelby County v. Bragg, 135 Mo. 296; Dexter v. McDonald, 196 Mo. 389; Garrett v. Conklin, 52 Mo. App. 659 ; Zacharias v. Zacharias, 23 Pa. St. 452; Hostetter v. Hallinger, 117 Pa. St. 606; Railroad v. Bridges, 46 Am. Dec. 528; Hayward, v. Gunn, 82 111. 385; Governor, Etc. v. Wood-worth, 63 111. 254; People v. Ocheltree, 48 111. App. 220; Jewells v. Jewells’ Est., 139 Mich. 586; Harlow v. Dehon, 111 Mass. 195; Farnam v. Brookes, 9 Pick. 243; Parks v. Satterthwaite, Admr., 132 Ind. 411; Butler v. DeBaum, 116 Wis. 326; Kennedy v. Baker, 59 Tex. 150; Wingate v. Wingate, 11 Tex. 434; Tinner v.. Mehane, 10 Tex. 252; Hightower v. Hester, 4 Tex. Civ. App. 57; Mills v. Mills, 115 N. T. 80; Dunn v. Dunn, 137 N. C. 533. (8) Statutes of limitation are favored in the law, and cannot he avoided, unless the party seeking to do so brings himself strictly within some exception. Shelby Co. v. Bragg, 135 Mo. 300; Rogers v. Brown, 61 Mo. 187; State ex rel. v. Willi, 46 Mo. 236; Garrett v. Conklin, 52 Mo. App. 654; Shortridge v. Harding, 34 Mo. App. 354; Wood v. Carpenter, 101 U. S. 141; Buckner v. Calcóte, 28 Miss. 432; Nudd v. Hamblin, 8 Allen 130. (9) The error of the trial court consisted in holding that the transaction constituted a direct express trust, and, therefore, could not be affected by the Statute of Limitations. Call it, if you will, a direct express trust — the name is not significant — the undisputed facts must control, and such facts undeniably show that the transaction does not possess the characteristics of the “technical, continuing express trusts, such as fall within the peculiar and exclusive jurisdiction of courts of equity.” The authorities we have cited at point 7 demonstrate the error of the trial court’s conclusion.

      E. G. Serb el and Brownrigg, O’Brien & Mason for respondent.
    (1) There has been no change of theory on the part of plaintiff in this case, but if there had been, inasmuch as the original petition in the case was not preserved in the record by exception, appellants would not be entitled in this court to complain of any alleged change of theory on the part of the plaintiff in the trial court. (2) Against a bank deposit or an account or credit with a bank payable at the bank on demand and subject to draft or check, the Statute of Limitations does not run until after a demand,by the customer of the bank for payment and the refusal thereof by the bank. Koelzer v. First Nat’1. Bank of Whitewater (Wis.), 104 N. W. 838; 3 Am. and Eng. Ency. Law (2 Ed.), 838; Branch v. Dawson, 33 Minn. 400; Goodell v. Brandon Nat’l Bank, 63 Vt. 305; Girard Bank v. Bank of Penn Township, 39 Pa. St. 98; Bolles on Banks and Their Depositors, sec. 360; Morse on Banks and Banking (4 Ed.), secs. 186, 322; Landis v. Saxton, 105 Mo. 491; Newark on Bank Depositors, sec. 11. (3) Where money is held by one party in trust for another, and the trust arises, not by implication of law or as a result of mistake or fraud, but by virtue of an express agreement that the money is to be held and used by the trustee for a certain purpose for the benefit of the cestui que trust, the Statute of Limitations does not begin to run in favor of the trustee until there has been a repudiation of the trust clearly and unequivocally brought home to the knowledge of the cestui que trust. Zeidman v. Molasky, 118 Mo, App. 119; Prewitt v. Prewitt, 188 Mo. 675; Frank v. Morley, 106 Miqh. 635; Walden v. Karr, 88 111. 49; Davis v. Davis, 86 Hun 400; Post v. Benchley, 48 Hun 83; Purdy v. Sistare, 2 Hun 126; Heil v. Heil, 184 Mo. 665; Hillman v. Allen, 145 Mo. 638; Foster v. Friede, 37 Mo. 36; G-oodwin v. Goodwin, 69 Mo. 617; Ruby v. Barnett, 12 Mo. 3; Dillon’s Admr. v. Bates, 39 Mo. 292; Fox v. Cash, 11 Pa. St. 207; Marshall’s Estate, 138 Pa. St. 285; Pepper v. Robinson (Pa.), 32 W. N. C. 203; J ones ’ Executor v. Henderson, 149 Ind. 458; Stanley’s Estate v. Pence, 160 Ind., 636 ; Jones v. Home Savings Bank, 118 Mich. 155; Seymour v. Freer, 8 Wall. (75 IT. S.) 202; Perry on Trusts, sec. 283.
   LAMM, J.

— In 1897 plaintiff brought suit against the Continental National Bank to recover $5,406.50, with interest from the date of demand and refusal to pay, to-wit, July 2, 1894. Subsequently, said bank was absorbed by its co-defendant, the National Bank of Commerce, and the latter was made a party.

At the trial after the evidence was in, an amended petition was filed to conform to the legal effect of the facts proved. The answer was a general denial and a plea that the cause of action “did not accrue within five, nor within ten years, before the commencement of this action.”

Plaintiff recovered $9,091 below, and defendants appeal.

The amended petition was broad enough to make competent the testimony put in on both sides. It substantially appears therefrom that in June, 1871, the National Loan Bank was a banking corporation doing a general banking business- in the city of St. Louis. That in that year it bought certain bonds issued by certain counties in aid of a railroad from Sedalia to Lexington, then building as a branch of the Pacific Railroad, the particulars of which will more fully appear when the evidence is reached. That said bank by an agreement between the parties in interest (the vendors, the bank and the Pacific Railroad) agreed to hold and did hold $48,813 of the proceeds for the benefit of the Pacific Railroad, payable to its order when certain conditions as to track laying were complied with, and thereupon entered a credit upon its books in said sum in favor of said Pacific Railroad, reciting the conditions precedent to payment. That thereafter, on part compliance, it paid to the Pacific Railroad one-half said sum and held the remainder. That thereafter, on full compliance with the conditions, it paid $19,000 of said remainder to the Pacific Railroad on its order, and thereafter it and its successors have held the balance of $5,406.50, subject to the order of its owner. That in 1873 said bank changed its name to the Continental Bank, the latter taking over the funds and business of the former, burdened with all its liabilities. That in 18891 defendant, the Continental National Bank, was organized under the National Banking Act, becoming the successor to the Continental Bank as owner of its assets, burdened with all its liabilities, and thereafter continued said general banking business until 1902. That in 1902 defendant, the National Bank of Commerce, then doing a general banking business, absorbed the Continental National Bank, coming into possession of all its assets burdened with all its liabilities. That in 1849 there was organized a domestic railroad corporation, known as the Pacific Railroad (spoken of in commercial circles colloquially for business ends, while a going concern, as the “Missouri Pacific,” possibly -to distinguish it from other Pacific Railroads), said Pacific Railroad, as a matter of history, owning and operating a road from St. Louis to Kansas City through Sedalia. Afterwards in 1876 and at subsequent dates, because of sundry acts of incorporation, consolidation, reorganization, leasing, foreclosure and succession, the plaintiff corporation, springing into existence in 1880, became owner of all the properties, assets and franchises of said railroad corporations, including the fund in dispute. We purposely omit details going to the chains of title aforesaid (as pleaded in sundry incidents of corporate swallowing and digestion) because the case is submitted to us on the theory that not only the deposit or fund in dispute, but that said several successor ships, etc., existed and that the only substantial defense is limitation, not title.

Attending to the facts, it will serve no good purpose to set forth the testimony in detail. Its outline is as follows:

(a) There is no discord in the testimony on the following facts: That in 1871 the counties of Pettis and Lafayette issued bonds in aid of the building of what was then commonly known as the Lexington Branch of the Pacific Railroad, running from Sedalia to Lexington. That in June, 1871, said National Loan Bank purchased those bonds. That, of the proceeds, $48,813 were held as a fund by said bank under the following tripartite agreement, set forth in its books between it, the Pacific Railroad and the vendors of said bonds, viz.: in effect that one-half of said sum should be paid by said bank to the Pacific Railroad when the track of said Lexington Branch was completed from Sedalia to the town of Concordia, and the other half when it'was completely laid from Sedalia to Lexington — Concordia being about equi-distant between Lexington and Sedalia. It appears that said, fund or deposit was entered on the bank’s hooks as a credit in favor of the Pacific Railroad, payable in accordance with the said deposit agreement. It appears that in December, 1871, the track was laid from Sedalia to Concordia, whereupon the bank ascertained and recognized its liability to pay in part and did pay one-half of said fund, to-wit, $24,406.50, to the Pacific Railroad on its demand in conformity 'with the agreement, and that an entry on its books was made taking credit in favor of the bank for that payment. That in January, 1872, said track was completely laid from Sedalia to Lexington, whereupon the liability to pay ripened in tbto, and the bank paid in the following March, $19,000 of said fund to the said Pacific Railroad on its demand, and an entry was made taking credit to the bank for that amount, leaving as a balance the principal sum sued for. It stands admitted that on the 2nd day of July, 1894, plaintiff drew its check or draft on the Continental National Bank for said balance, which said bank refused to honor and from that day to' this has uniformly denied liability. There is no dispute as to the amount due, if aught be due — that is, defendants do not claim that they or their predecessor, the Continental Bank, nor the predecessor of that bank, the National Loan Bank, ever paid that balance or any part of it or that the interest accruing after demand and refusal to pay is computed incorrectly. To the contrary, the uncontradicted testimony tends to show that by some twist in bookkeeping the Continental Bank absorbed that balance into an account pertaining to its bond transactions and thereby diverted and appropriated it to its own use. No consent, express or implied, is shown for this appropriation, nor is there any attempt to show that notice of it was ever brought home to the owner of the fund before the demand and refusal to pay in 1894. Neither is there any dispute over the fact that the transactions in question appeared on the books of the National Loan Bank and the Continental Bank. In fact defendants rely on the contents of those books (as shown by secondary evidence) and plaintiff relies on their contents (as shown by secondary evidence). It stands admitted the books in question came in due course into the keeping of defendant, the Continental National Bank, and were in its vaults after suit began. That plaintiff through counsel requested their careful preservation as evidence, but that the books thereafter were by inadvertence in part mutilated and in part destroyed.

(b) The record does not disclose whether the first payment of $24,406.50" was made by check drawn by the Pacific Eailroad or by other form of demand "and receipt given, or how the money passed out of the bank’s coffers. The testimony is not in accord on the showing made by the books as to how the $19,000'were paid. Plaintiff introduced secondary evidence tending to show that the books disclosed a payment by check as if on an account subject to check-, it put in other evidence from the former cashier and the former bookkeeper of the National Loan Bank and the Continental Bank tending to show that under the method of bookkeeping in vogue in those banks the fund stood in an account kept in such a way as to be subject to check in due course of banking when once the track was laid from Sedalia to Lexington. Much of the testimony related to the technique of bank bookkeeping, but since the method adopted by these banks appears to have been selected as a convenience to- themselves without consultation with the beneficial owner of the fund, the details of this testimony would seem immaterial — the ultimate question to be got at being its legal effect. Defendant introduced testimony tending to show that the account, deposit or fund, however designated, at no time was in a form subject to check and was never treated as a live, current account. It introduced tes•timony tending to show that the hooks did not disclose that any check had been drawn at any time against the account. The clear weight of the testimony indicates that the' account or fund appears to have been kept under the title of “Bills Payable,” and was carried on from day to day and from book to book as a balance earmarked as due the “Pacific Railroad” or “Missouri Pacific Railroad” until at a certain time it disappeared in that form, reappearing as absorbed in the bond account and not as a daily balance due. There was testimony tending to show there was a divergence of opinion between the officers of those banks as to .the method of bookkeeping adopted with relation to the fund in dispute. As we gather it, when the fact was recognized by the bank that the railroad was completed to Lexington and that the agreement under which the money was held was ready for full execution, the cashier was of opinion it should be transferred to a current account of the proper railroad company under an appropriate head but the president of the bank required it to be kept and carried as formerly. It is suggested by counsel that the Pacific Railroad about the time in hand passed into the hands of the Atlantic & Pacific and that in the transfer of properties between the railroad companies, with the corporate deaths and changes of officers disclosed, the fund was lost to railroad sight and memory for some time.

On this record, counsel for plaintiff contend the judgment should be affirmed on either of two allowable theories, first, that plaintiff bore the relation of depositor in the Continental National Bank and subsequently in the Bank of Commerce, that if such relation is held to exist then the Statute of Limitations did not begin to run until demand was made by check or draft and payment was refused, that in this case demand was made in 1894 and suit was instituted in 1897. therefore, the statute is not a defense; second, they argue, that under the amended petition and the facts in proof there is another allowable theory, on which the judgment should be affirmed, viz., that the fund in question by virtue of the express agreement in evidence was held as a trust fund by the trustee for a certain purpose for the benefit of the cestui que trust and therefore the Statute of Limitations did not run until there was an explicit and palpable repudiation of the trust, unequivocally brought home to the cestui que trust, and such repudiation, they say, did not arise until demand of payment and refusal as aforesaid.

On the other hand, the appellants’ counsel contend that the trust created, if any, was merely an implied trust and hence under the facts of the record the Statute of Limitations is a bar; and, second, they argue, in substance, that there was no relation of depositor and banker, but that the bank was a mere debtor who owed a debt in the nature of a bill payable, and therefore any exception in favor of a bank depositor in applying the law of limitations does not apply in this case. They argue, too, that plaintiff by its amended petition abandoned the theory of depositor and depositary — that limitation is a full defense.

I. The record discloses no exception saved to the filing of the amended petition and no motion to strike out on the ground of departure. Neither was the original petition introduced in evidence and preserved in the bill of exceptions. In this condition of things, jt became functus officio, and though printed and brought here by defendants and though we are pressingly invited to look at it in aid of defendants’ point of abandonment of the theory of banker and depositor, yet to do so would be to go outside of the record, which we may not do;'hence, the amended petition must speak for itself without- aid of any interpreting side-light from abandoned petitions. Looking to it and construing its averments liberally, as we are bound to do (R. S. 1899, sec. 629), we find tbe constitutive elements of a bank deposit are pleaded, to-wit, a bank doing a general banking business and a fund coming into its possession belonging to a corporation in effect standing in tbe relation of a depositor — i. e., payable to tbe latter’s order and credited to it on tbe bank books. We cannot bold as a matter of law that this condition did not initiate and establish the relation of banker and depositor between the two as that relation is defined in the books. The mere fact that payment at the start was subject to a condition should not be held conclusive, we think. This is so, because there came a time when it stands conceded that the condition precedent to payment had been performed and was out of the way. There came a time, also, if plaintiff’s evidence controls, when the bank recognized that it held this very money subject to check and honored checks drawn against it by its owner as a depositor in due course of banking. In answer to the charge of abandonment of the theory of the existence of the relation of banker and depositor, plaintiff’s counsel point to the amended petition alleging and to the proof establishing that relation and they deny it is abandoned.

Justice is not to be entangled and strangled in and by the refinements of bookkeeping — refinements, in this instance, adopted by the banks without consulting the owner of the fund. The thing to be got at is the legal effect of what was done. The thing dune, according to plaintiff’s evidence, was that the bank assumed the relation of banker; that plaintiff’s predecessor assumed the relation of depositor; and that the fund assumed the form of a deposit payable on the order of the depositor. There being evidence that the thing done established the relation of banker and depositor, and the petition being broad enough to admit that proof, the point is ruled against defendants — this, in spite of the contention made by counsel that the trial court put its finding on the trust theory alone. If this were so, the raido decidendi below is of no consequence on appeal so long as the judgment is within the plead1 ings and is supported by the proof. We hold there was no abandonment of the theory of the existence of the relation of banker and depositor, and that there was substantial testimony sustaining that theory.

II. We now come to consider the question of limitation from the standpoint of banker and depositor.

To avoid misinterpreting what is said on the point of limitation, it is well to announce at the outset that whatever is said must be construed as strictly confined to the particular facts held in judgment. This is not a case where a bank owes a bill payable — an I O U, a note or due bill; nor is it a case of a certificate of time deposit not subject to check; nor is it a case where a bank comes into possession of a fund as a mere collecting agent and nothing more; nor is it a case (which we cite without approving or disapproving) like Qutrochi Bros. v. Bank, 89 Mo. App. 500, where a pass book was balanced, a credit item wrongfully altered and a cause of action apparently predicated of the wrongful alteration of the pass book. The law of limitations of actions applied to such or like cases or to cases where pass books are balanced, accounts rendered and (after notice) acquiesced in, or where questions of estoppel might arise, does not concern us.

The naked question here is: Does the Statute of Limitations run in favor of a banker as against his depositor before demand of payment by, and a refusal to pay on, the depositor’s order?

Neither diligence of counsel nor our own has discovered a case directly in point in the appellate courts of this State. The question, then, is res integra and must be decided on the inherent reason of the thing and the persuasive authority of precedents in other jurisdictions establishing the general law.

Courts are fond of saying that the relation between depositor and hanker is merely that of debtor and creditor. [Henry County v. Salmon, 201 Mo. l. c. 163.] If that formula precisely expressed all there was of the truth then the Statute of Limitations would he applied to the relation of depositor and hanker precisely as it is between debtor and creditor. But the formula may be said to he somewhat of a fiction of the law — a formula used for want of a better, and springing from the poverty of our language in expressing nice shades of thought. It is the truth hut not all there is of it. [Clifford Banking Co. v. Donovan Com. Co., 195 Mo. l. c. 287.] For example, a hank is sometimes viewed as a mere custodian of the depositor’s fund (Girard Bank v. Bank, infra); so, it is trite learning that a bank is under no obligation to pay until demand made. It need not, like a common debtor, run about and hunt up its creditor and pay him whenever and wherever found. To the contrary (Mahomet going to the mountain) it pays only over its counter (see authorities, infra). The deposit, then, not being due till demand is made, the demand and refusal to pay set the statute running.

The root and philosophy of the relation is suggested by Sherwood, J., in Landis v. Saxton, 105 Mo. l. c. 491, where, speaking of deposits in hanks, he says: “The very purpose of the bailment is safe keeping, and the duration of the bailment is necessarily indefinite. There, some action is requisite in order to determine the bailment, and to put the bailee in the wrong, in case he may refuse to accede to the demand for the deposit made.”

When A puts his money with B, a hanker, he does it with the purpose of leaving it there for a day, a year, or many years. It may be it is not put where moth and rust do not corrupt and thieves do not break through and steal, but A feels safe, as things run in this world. He may go into a far country, up and down and to and fro, resting on the assurance that his money will be his on his return — B having the use, the interest, of it as his in the absence of a special agreement. Was it not shrewdly said in very olden time: “Wherefore then gavest not thou my money into the bank, that at my coming I might have required mine own,” etc.? [Luke XIX, 23 q. v.] But would it not be a startling and’ far-reaching proposition to announce that B, the banker, has not only the usufruct of, but by the mere flux of time has absorbed, the very corpus of A’s deposit — thus bringing B within the description of the austere man, of whom it was said, in the authority, supra: “Thou takest up that thou layedst not down and reapest that thou didst not sow.”

The fact that no case involving that proposition is in our reports may well be due to the consensus of opinion in the business world that the proposition runs counter to good banking and the good sense of the thing. Referring to the contract between banker and depositor, Morse on Banks and Banking (4 Ed.), vol. 1, sec. 322, says: “We have already seen that it is a contract specially modified by the clear legal understanding that the money shall be forthcoming to meet the order of the creditor whenever that order shall be properly presented for payment. It follows, therefore, that this demand for payment is an integral and essential part of the undertaking, and, it may be said, even of the debt itself. In short, the agreement of the bank with the depositor, as distinct and valid as if written and executed under the seal of each of the parties, is only to pay upon demand; accordingly, until there has been such demand, and a refusal thereto, or until some act of the depositor, or some act of the bank made known to the depositor, has dispensed with snch demand and refusal, the statute ought not to begin to run, nor should any presumption of payment be allowed to arise.”

Mr. Bolles, in his work on Banks and Their Depositors, see. 360, adopts the rule announced by Strong. J., in Girard Bank v. Bank of Penn Township, 39 Pa. St. l. c. 98, and the reasons supporting it, as stating the generally accepted doctrine, viz.: “The engagement of a bank with its depositor is not to pay absolutely and immediately, but when payment shall be required at the banking-house. It becomes a mere custodian, and is not in default or liable to respond in damages until demand has been made and payment refused. Such are the terms of the contract implied in the transaction of receiving money on deposit, terms necessary alike to the depositor and the banker. And it is only because such is the contract, that the bank is not under the obligation of a common debtor to go after its customer and return the deposit wherever he may be found. Plence, it follows that no right of action exists, and the Statute of Limitations does not begin to run until the demand stipulated for in the contract has been duly made. For this, authorities are hardly necessary.”

The great weight of authority runs the same way. [Munnerlyn v. Bank, 88 Ga. 333; Koelzer v. Bank of Whitewater (Wis.), 104 N. W. 838; and see cases collected from Arizona, Louisiana, Maryland, Massachusetts, Minnesota, Nebraska, New York, South Dakota, Texas and Vermont by the learned editor in 25 Cyc., note 32, p. 1098.]

It results that having already held that under the pleadings and proofs the relation of depositor and banker might well exist in this case, we now go further and hold that, under the facts uncovered and established, the Statute of Limitations did not run. Broad justice and public policy lie with that view. So, the doctrine of well-reasoned cases lies the same way.

III. Subsidiary questions are discussed by counsel, viz.: (1) On plaintiff’s behalf, by force of the maxim, Omnia praesumuntur contra spoliatorem, it is sought to draw unfavorable inferences from the destruction and spoliation of the bank books; and (2) on defendants’ behalf it is argued that the facts show the chief witness for plaintiff had a contractual pecuniary interest in the result of the suit. But it must be at once apparent that both these questions either go to the credibility of the witnesses, or affect the weight and quality of the proofs and therefore were for the trial and not the appellate court. The evidence showed some lack of care in preserving the bank books on the part of the Continental National Bank. Their loss and spoliation, however, were explained in a way which, if believed, relieved its officers from any sinister motive. The office of this evidence in the first instance, at least, was to pave the way to admit secondary evidence of the contents of those books. Both parties availed themselves of that right. If a witness has a pecuniary interest in the resrüt of a suit, a mote in his eye, that interest touches and affects his credibility alone. It raises the question whether “the jingle of the guineas” of anticipated gain drowns the still, small voice of conscience — whether he is the excellent witness of the Psalmist, “He that sweareth to his own hurt and changeth not” — and is essentially one for the trial court in weighing testimony.

IV. The conclusions already reached determine the ease.

There are facts tending to show that the fund in dispute was a trust fund held under a trust created by express agreement as distinguished from an implied or resulting trust. It is insisted by plaintiff’s counsel that the judgment might well be sustained on those facts on the theory that the Statute of Limitations does not run against an express trust. This view of the facts and the law is thoroughly threshed out by counsel pro and con, but it would seem to be unnecessary to discuss or develop that question or put affirmance on that ground. Let the judgment be affirmed.

It is so ordered.

All concur, except Vállicmt, P. J absent.