author: GRAVES, J.

text:
    ST. FRANCIS MILL COMPANY et al., Appellants, v. SUGG et al.
    In Banc,
    July 13, 1907.
    1. MOTION FOR NEW TRIAL: Dormant For Fifteen Years: Abandonment. The decision of this court in St. Francis Mill Co. v. Sugg, 142 Mo. 364, holding that permitting a motion for new trial to lie dormant for fifteen years was not an abandonment of the motion, is questioned in this case; but that decision is the law in a subsequent appeal in the same case, and for that reason alone that holding is recognized in the disposition of the issues involved on this appeal.
    2. FRAUDULENT CONVEYANCES: Presumption of Payment: Lapse of Time. There is no presumption, owing to great lapse of time, that judgments rendered in 1875, upon which unsuc-' cessful executions were timely issued, were paid at the time this case, to have certain conveyances made by the judgment debtor to his brother set aside as being fraudulent as to his creditor, was tried in 1903, the suit having been instituted and first tried in 1880, and, a motion for new trial having been filed and allowed to lie dormant for fifteen years, the cause was, after two appeals on other points, tried again. When the case went back for a retrial after that motion had been sustained, it was to be tried on the condition of things as they existed at the Institution of the suit in 1880. Besides, the evidence shows that the judgments were not paid.
    8. EVIDENCE: Lapse of Time. There are cases in the proper disposition of which the rules of evidence must be relaxed. Owing to the great lapse of time from the institution of a suit to its final retrial twenty-three years afterwards, the principal (participants being dead, and allowance being made for failing memory, the .court, in determining whether certain conveyances grew out of an attempt to defraud creditors, will indulge its own experiences and draw all reasonable inferences from what evidence is before it.
    4. FRAUD: Characteristics. Fraud is never proclaimed from the house top. It is fathered by a desire to do wrong, and has its birth in darkness. Often it is clothed with the adornments of honesty, beneath which, nevertheless, will be found unconscious blazings which mark the pathway the parties followed.
    5. FRAUDULENT CONVEYANCE: Evidence. The evidence in this case is reviewed at length and the conclusion of fact reached therefrom is that the deceased grantor in deeds conveying twenty thousand acres of overflow land to his brother was at the time hopelessly insolvent and that his purpose in conveying the lands was to delay his creditors and stay off 'executions on judgments about to be rendered against him until -he could pay them by forcing his creditors to take a part of them at exorbitant prices in settlement of their claims, and to hold the balance for himself, and that his brother, the grantee, shared in the purpose and intention of the conveyances, and that they were without consideration, and these being the facts the conclusion of law necessarily follows that they were fraudulent as to such creditors.
    6. — : Estoppel: Ultimate Justice. Nevertheless, there being evidence in the case that, after the judgment rendered in 1880 setting aside the deeds as fraudulent and after a motion for a new trial was filed, both sides agreed that the judgments might stand if two thousand acres embraced in the deeds were exempt from execution, and that some of those lands have been since sold, the deeds, on a retrial of the same cause in 1903, will not be set aside as to those lands.
    Appeal from Jefferson Circuit Court. —Hon, E. M. Dewing, Judge.
    Reversed aed remanded (with directions.) ■

      W. M. Williams, M. L. Glardy, Jno. M. Wood, Jos. 'A. Wright, B. T. Bailey, Wm. H. Glopton, G. P. Hawkins, Ely & Kelso and Walker & Cox for appellants.

      Wilson Cramer and B. B. Oliver for respondents.
   GRAVES, J.

This is an action originally instituted m the circuit court of Dunklin county, April 2,1875. It is a suit in equity in the nature of a creditor’s bill to set aside for fraud a deed from Wm. S. Sugg to Wylie P. Sugg, of date May 24, 1871, but acknowledged,1 on May 27,1871, and therefore not delivered until said last-named date. The name of the grantee in this deed appears in the record and briefs in different ways. In some places it is Willie P. Sugg, in others Wylie P. Sugg and further as W. P. Sugg. This is a mere matter of detail however. This deed covers something like twenty thousand acres of land in Dunklin county, formerly overflowed or swamp lands, the title to which was at one time in said county. The plaintiffs are and were judgment creditors of Wm. S. Sugg, lawyer, merchant and navigation contractor, as appears from the evidence, but not especially successful, along legitimate lines, in either avocation. The defendants are the heirs at law of Wylie P. Sugg, deceased. The case has a checkered career and some of the prior history, as traced from the record, will not be inapropos.

Wm. S. Sugg, then a merchant and lawyer in southeast Missouri, sometime prior to May 16, 1870, conceived the idea that he was engineer enough to make Varner river navigable from its head to its mouth and the St. Francis river from the mouth of Varner river to the southern line of Missouri. Accordingly, he entered into a contract-to that effect with Dunklin county and for this feat of engineering was to receive from Dunklin county forty thousand acres of swamp land, to be. selected by said Sugg. June 22, 1870, he obtained patents to something less than one-half of the lands called for in this contract. The title thus conveyed he held until May 27, 1871, at which time he conveyed or attempted to convey the same to his brother, Wylie P. Sugg, for the expressed consideration of $1380, and the assump>tion and performance of the contract with Dunklin county as to these two rivers/ This deed was acknowledged on May 27, 1871, and on May 29, the following Monday, the regular May term of the circuit court of Dunklin county was to and did begin. A number of the creditors, including several of the plaintiffs in this action, had previously instituted their suits in said court to recover judgments against Ym. S. Sugg, merchant, for goods, sold, delivered and used, but not paid for, and these suits were about to culminate into judgments, and did, in due course of time and at said May-term, result in judgments. After unsuccessful executions, these judgment creditors, at the date aforesaid, instituted this suit. . On August 20, 1880, this suit finally- reached a judgment in the circuit court of Dunklin county, the effect of which judgment is to find this deed in controversy^ fraudulent except as to two thousand acres of the land conveyed. The defendants therein,, the then heirs at law of Wylie P. Sugg, deceased, duly lodged their motion for new trial, which motion was permitted to lie dormant, until January, 1895, at which time a motion was filed in, said circuit court for a nunc pro tuno entry showing the overruling of said motion for new trial, which motion for a mmc pro time entry was overruled by the trial court, and the judgment overruling the same was sustained by this court. [St. Francis Mill Co. v. Sugg, 142 Mo. 358]. At the same term of said circuit court the trial court overruled the motion for a new trial in the language of the judge, “for the reason that the court deems the said motion to have been abandoned and to be not now pending in said cause.” This judgment was reversed by this court. [142 Mo. 364.] Following the ruling of this court, the trial court sustained the motion for new trial and the cause was opened up for a trial de novo. It might be well to remark here that the judge before whom the cause was tried had been succeeded by another. This furnished the reason for the sustaining •of the motion. The cause was retried and at such trial all the issues were found for the plaintiffs, but the trial court after finding all the issues as to fraud in favor of the plaintiffs, dismissed plaintiffs’ bill for the reason that the title to the land was yet in Dunklin county. Upon motion for new trial, the trial court set aside its judgment dismissing plaintiffs ’ bill, and from this order the defendants appealed, but the action of the trial court was sustained by this court. [169 Me. 130.] The-cause was thus again left pending in Dunklin county for trial ele novo. Defendants, evidently having in view the opinion of the trial judge upon the question of fraud, discovered prejudice in the mind of said judge, and made application for a change of venue, which application was sustained and the cause sent to the circuit court of Jefferson county, where it was tried again with the result that the deed from W. S. Sugg to Wylie-P. Sugg was sustained and plaintiffs’ bill dismissed, and judgment to this effect entered, as also- judgment against plaintiffs for costs. Prom this judgment the-plaintiffs duly perfected their appeal, and it is this record before us now for review. This is the court history of this case, save and except in going through our reports, we find that at an early day we were charged with the duty of investigating a side issue growing out of this case. [St. Francis Mill Co. v. Sugg, 83 Mo. 476.] This court had the cause and expressed opinion thereon as above indicated. This was at a time when the memory had not been dimmed by time, and the facts then and there involved will not be amiss here. Prom our opinion in 83 Mo. 476, it appears that the plaintiffs under the decree of 1880 had an execution for costs issued. This execution was levied upon the two thousand acres of land which was given to defendants by this decree of 1880. Defendants filed motion to quash the-execution, assigning among other things, that the costs for which said execution was issued had been fully paid.' There was a trial upon this motion before Hon. E. P. Owen, the same judge who had shortly prior thereto entered the original decree of 1880. This motion to-quash was sustained by Judge Owen and his judgment, thereon affirmed by this court. [83 Mo. 476.] With this we have the complete court history of the case entitled,. The St. Francis Mill Co. v. Sugg, except the chapter which we now proceed to write.

We question the views of this court as expressed in 142 Mo. 364. We are of opinion that the trial court was right in holding that there had been an abandonment of the old motion for new trial and for that reason there was no motion really pending, and that this court was in error in reversing that judgment. However, we did reverse it, and that opinion is the law of this case; the parties have acted upon it, and for that reason alone we shall recognize it in the disposition of the present issues. If it were an original proposition in another case, we would not feel bound by the views expressed in 142 Mo. 364.

To our mind, notwithstanding the voluminous record and great number of briefs in the case, the issues are few and simple. They are (1), Was this deed made by W. S. Sugg with the intent to hinder, delay or defraud his creditors ? (2), Did Wylie P. Sugg know of and participate in said fraudulent intent? And (3), If the deed is found to be fraudulent are there any equities to be invoked in favor of the defendants as to all or any portion of the lands covered by said deed? In our judgment, answers to these questions solve the problems of this case. We will discuss the evidence in the course of the opinion.

I.

One contention made by the defendants is that these judgments of the plaintiffs are presumed to be paid owing to the lapse of time. These judgments constitute the foundation of the present action. They were such at its institution in 1875 and continue as such throughout. When this court reopened this case for trial, de novo, by our judgment in St. Francis Mill Co. v. Sugg, 142 Mo. 364, the case went back for this retrial on the condition of things as they existed at the institution of this suit. The case was opened up1 for new trial by the judgment of this court, the propriety of which we question, as hereinabove indicated. At any rate, it would be inequitable and unjust to require a trial upon a state of facts'other and different from those existing at the institution of the suit, especially when such new state of facts was not brought about by plaintiffs. The evidence abundantly shows the conditions then, and that there had been no change therein since the institution of the suit, save and except the division between some of the claimants of about six hundred dollars arising from the sale of these lands, the two thousand acres being excluded, as lands of the W. S. Sugg estate, under order of the court having probate jurisdiction. This was a mere pittance and only paid pro rata to a part of the judgment creditors. The effect of our judgment directing that the motion for new trial be sustained, was to simply leave the case where it was prior to the judgment and decree of 1880. There is where it should stand, and under such circumstances, we hardly thinik that either limitations or presumption of payment have any place in this case, in so far as these judgments are concerned. [St. Francis Mill Co. v. Sugg, 169 Mo. 136.] This contention is ruled against the defendants, and we shall undertake to consider the case upon its merits, along the lines hereinabove indicated.

n.

1. Owing to the great lapse of time from the institution of this suit to its final retrial the evidence is not as satisfactory as it might have been at an earlier day. For that reason we will indulge our experiences and draw any and all reasonable inferences from what we have. We fully realize what was said by the learned jurist writing the opinion in the case of Richards v. Elwell, 12 Wright (Pa.) l. c. 367: “There is a time when the rules of evidence must be relaxed. We cannot summon witnesses from the grave, rake memory from its ashes, or give freshness and vigour to the dull and torpid brain.” Nothing is more applicable to this case. The basis of the action is fraud. The principal actors are long since dead, and were, at each and all of the divers trials. Many others, whose testimony might have enlightened the court, are and were likewise gone. The remaining ones are not altogether clear in their recollections. But fraud usually leaves earmarks by which it can be traced. We do not agree with the learned trial judge in his conclusion that this deed was not fraudulently executed by W. S. Sugg, and that W. P. Sugg had no knowledge of, or participated in such fraud. Fraud is never proclaimed from the house tops, nor are fraudulent intentions reduced to writing and given to the public press. Fraudulent intents and fraudulent acts have their birth and origin in darkness, and are fathered by a desire to wrong. Ofttimes the parties attempt to dress them with the adornments of honesty, but beneath it all will be found unconscious blazings which will mark the real pathway followed by the parties. And X-Rays are not always required to follow the unconsciously blazed pathway. • As said by Sherwood, J., in Massey v. Young, 73 Mo. l. c. 273-4:

“Fraud is rarely ever susceptible of positive proof, for the obvious reason that it does not cry aloud in the streets, nor proclaim its iniquitous purposes from the house tops. Its vermiculations are chiefly traceable by < covered tracks and studious concealments/ [Cooley on Torts, 475; Hopkins to use v. Sievert, 58 Mo. 201; Burgert v. Borchert, 59 Mo. 80.] And though fraud is not to be presumed, yet it is as legitimate to infer its existence from surrounding circumstances pointing unmistakably to a wrongful purpose, as it is to thus infer under similar circumstances the commission of a crime; and this is done daily. Anything, therefore, which satisfies the mind and conscience of the existence of fraud is sufficient. [Cooley on Torts, 476, and cases cited.] ’*

Let us take the evidence in the case at bar. In the fall of 1870, W. S'. Sugg was in the mercantile business. Accounts and claims were being sent by creditors to attorneys and their collection being pressed. The contract with the county had been made and something less than twenty thousand acres of land had been patented to Sugg, but this was not money, Overflow lands were not then valuable, but in the mind of Sugg, no doubt, they were to become valuable. Subsequent history has demonstrated that his ideas were not ill-founded. We find him asking his creditors, through their attorneys, not to press him, because suits would ruin his credit as a merchant. We find him agreeing to confess judgment later, if the claims were not satisfied. The May term, 1871, of the circuit court was approaching. Many impatient creditors, tired of promises and delays, had brought suit. Nothing had been done toward satisfying creditors. That he was unable to meet his demands in the ordinary course of business, stands out in bold relief in this record. Shortly before, in his business, in closing up the co-partnership, he had taken, over assets, some of questionable value, to the extent of a little over nine thousand dollars and assumed liabilities of the firm of something like six thousand and five hundred dollars, as detailed by one of his co-partners. This did not include individual and personal liabilities. After his death, which occurred two or three years later, judgments and claims aggregating ten thousand dollars appeared. All of which evidently existed at the date of this deed. In this situation, he goes across, the Mississippi river a short distance to his brother’s,, at Dyersburg, Tennessee, who was likewise in the mercantile business, and who likewise had evidently been recently harassed by Ms creditors, although his co-partnership was a going concern. If Ms creditors were not pushing him at the time, they were shortly afterward. What occurred between these two brothers we can only reach by inference. Had each been alive and well at the trial the probabilities are that we would still have the privilege of reaching the real transaction by inference. Parties do not usually enter into a scheme to hinder, delay or defraud creditors, and later when called into court to explain their transaction, openly admit the facts. Such has not been the experience of either the bench or bar. So that, after all, in these cases we are forced to take the facts and circumstances as they appear, and from them undertake to draw rational and reasonable inferences and conclusions. When we have done that we have met the full measure in cases involving the question of fraud.

That W. S. Sugg was insolvent, in the ordinary undestanding of such term, at the time this deed was made, there seems to be but little question. The judgment of Judge Owen, in 1880, voices this view; the later judgment of Judge Fort is along the same line; and further the findings of Judge Dearing from which this appeal is taken, are not opposed to this view. Upon this proposition, the record evidence of judgments and futile executions, and other evidence in the record is too conclusive to require further discussion of the point. The only serious contention of the defendants is that patents were issued to the remaining twenty thousand acres of land under the contract, and that after the deed to W. P. Sugg, there was still this prop>erty in the hands of W. S. Sugg, and therefore he was not insolvent. In our judgment the great weight of the testimony refutes the contention of defendants in this regard. An attempt was made to inventory these lands, the second twenty thousand acres, as a part of the W. S. Sugg estate. Tbe county court, then having probate jurisdiction, refused to allow such an inventory. In one capacity, they dealt with public lands, in the other they dealt with estates. Evidently the court while acting upon the probate side of its jurisdiction was not willing to blind itself to the knowledge it possessed by reason of its familiarity of its record' on the other side of its jurisdiction. It did not so blind itself and as a result it would not permit the second twenty thousand acres of land to be invoiced as a part of the W. S. Sugg estate. One Brewer was register of Dunklin county, when the first lands were patented to Sugg in 1870. He had in his possession a book now called' “Patent Record No. 2” and in this book is found the lands first selected by Sugg, and patented to him in 1870. In April, 1872, the court house' of the county and practically all public records were destroyed by fire. This book seems to have survived. Judge Brewer accounts for its survival by the fact that it was at Ms house at the time of the fire. That he kept it sometime after he had any use for it, and that he finally turned it over. It seems that even after the law creating the office of register had been repealed, one B. T. Walker was acting as register of the county. The office was abolished in I860. TMs party was the former partner of W. S. Sugg in the mercantile business, his brother-in-law and later Ms administrator. He has given two depositions in the case, one in 1878, which shows fraud conclusively, and later, another in which by adroit answers, for one in his then apparent condition, he seeks to parry the force and effect of the first deposition. Prom this book, “Patent Land Record No. 2,” there appear certificates of purchase, authorizing patents, for this last twenty thousand acres of land, signed by “B. T. Walker, Register.” Just how these entries could have been made in the book by Walker, when Brewer had the book, does not satisfactorily appear. These certificates are of date May 15,1871, at a time when tMs book was presumably in the possession of Judge Brewer. On these certificates' of Walker, as register, Walker, as administrator, sought to have these lands inventoried as assets of the Sugg estate. It is claimed that patents were in fact issued, and by Walter it is shown that they were in the court house for record and probably recorded when the building burned. A thorough reading of the record does not satisfy us that any such patents were issued. Walter said nothing about them in his deposition of 1878, but is the chief witness now. But on the contrary, we think the weight of the evidence shows otherwise. One of the judges of the county court at that time was yet living and he says patents were not issued, and much other testimony has a similar tendency. Subsequent actions show that there was no substantial claim to patents to the last twenty thousand acres. Officers charged with the collection of executions could not find them; attorneys diligently pushing claims did not find them; heirs of W. S. Sugg did not and have not found them, so far as the record shows, and Walker, former partner, brother-in-law, register and later administrator, has not brought them1 into the estate. These facts speak louder than a little public rumor, doubtless created by Walker, administrator, when he thought there was a chance to get this additional slice of the county for the estate of W. S. Sugg, and could use Walker, register, as a witness for that purpose. But enough upon this question. To our mind, the whole contract with the county is a huge joke, and was discovered and fully realized, after the county had parted, with the title to the first lands, but before the court did part with the title to the other lands, and for that reason they did not part with title to the last twenty thousand acres. No doubt, W. S. Sugg could get certificates from Walker, register, and perhaps did get such, and the county court in later years, finding some innocent purchasers of these certificates, parties who had expended money on the lands in the way of improvements, may have recognized them and’issued patents to such parties. These patents, so issued, appear as original patents, and not as patents issued in lieu of lost or destroyed patents, thus negativing the idea that previous patents had been issued. One of them, the one to Thornton A. Slicer, recites that he, Slicer, had paid the money. It may be that as to Slicer, no improvements had been made. We all know how such things might happen with a county court. We conclude that the evidence conclusively shows the insolvency of W. S. Sugg at the making of this deed. This, however, is but one step. Did he intend thereby' to hinder, delay or defraud his creditors and did W. P. Sugg know of and participate in such intent? This is the question next presented. It requires no stretch of imagination to reach a conclusion as to the intent of W. S. Sugg. He goes to Tennessee, gets his brother and brings him to Missouri; and upon the Saturday beifore circuit court was to begin Monday, this deed was acknowledged. He knew that these judgments would be taken in a few days at most. No sane person would doubt for a moment his intent and purpose. Charity might induce one to say that it was merely to hinder and delay, with' the ultimate purpose of paying when he could realize from his property, but this is as far as one could go under the undisputed facts in this record. This is far enough, although subsequent matters in the record would justify a judgment broader. Under the evidence we conclude that there was upon the part of W. S'. Sugg the purpose and intent of hindering, delaying and defrauding his creditors, these plaintiffs.

2. Did W. P. Sugg know of and participate in the fraudulent intent of W. S. Sugg? This is the real question in the case. It is fair to presume that the two brothers knew and discussed the financial situation of W. S. Sugg. To say that W. S. Sugg had not disclosed this condition to W. P. Sugg would be to brand him as a villain of a grosser character than we are willing to attribute to Mm. There may be some brothers who would do such a thing but they are the exception and not the rule. The natural course would have been for W. S. Sugg to have told Ms brother the real situation and this we think he did. That W. S. Sugg was hopelessly in debt and being crowded by his creditors is so apparent from the record that it is useless to discuss it, and he did not undertake to have his brother assume any serious obligations by taking a deed under such circumstances, at least without apprising Mm of the facts. .That the brother knew the facts, we think apparent from his subsequent actions. On May 5,1873, just before Ms death, W. S. Sugg executed a power of attorney to B. T. Walker, authorizing him to sell all of the. real estate of which he was seized and possessed. Eeferring to this, Walker in his first deposition says:

“Q. State if Willie P. Sugg knew of this arrangement and tMs power of attorney? A. I don’t know whether he knew of the power of attorney or not till •after William S. Sugg’s death, then I told him. I know that he did convey back one section of the land ■that had' been sold. •

“Q. Why was this power of attorney given you? State what Willie P. Sugg said to you when you told Mm of your power of attorney? A. He told me he had been corresponding with a view of settling their claims with these same lands. He said he could not .get any of the creditors to take the land at Ms price; he said he wanted ten dollars per acre.

“Q. State if. you had any conversation with William S. Sugg about tMs conveyance to Willie P. Sugg, of these lands before it was executed? A. I •don’t remember, I did have some conversation with Mm, but don’t know whether it was before or after. I think it was after. He said he, W. S. Sugg, was not broke and busted as a great many of his enemies thought, but if his health permitted, and he could trade his lands, he could pay out and have enough left to be rich.

“Q. State what conversation, if any, you ever had with Willie P. Sugg about this conveyance of these lands ? A. I had a good many conversations with him —I had the first conversation with him in the fall after W. S. Sugg’s death. He, Willie Sugg, asked my opinion in regard to Sugg’s estate, and to the titles to these lands in question. I told him the titles were shaky. He said if I could settle the matter satisfactory, he would be willing to give or place at my disposal several thousand aeres of land. I told him I thought the creditors would try to break up his title to the lands. Then he made me this proposition I mentioned, that he would be willing to give six thousand acres of land to settle the matter. I told him, to my recollection, some of the judgments against W. S. Sugg were rendered before 'any conveyance was made to him.

‘ ‘ Q. What further conversation did you have with him? A. I had conversations with him repeatedly. He said he was willing to pay W. S. Sugg’s debts on a fair basis. He told me repeatedly that he was willing to pay W. S. Sugg’s debts with lands — these same lands.”

It should be remembered here, that by the alleged contract W. P. Sugg was doing the work for which W. S. Sugg was to have received forty thousand acres of land, for just half of the land, and paying $1,380 for the privilege, and yet was willing to settle the debts of W. S. Sugg out of the twenty thousand acres to him granted by this alleged bona-fide deed.

As to whether the $1,380 mentioned in the deed was paid, the same witness says:

“Q. State if you know whether Willie P. Sugg paid William S. Sugg thirteen hundred dollars or any other sum for the conveyance of these lands? A. I do not know of W. S. Sugg receiving any money for the conveyance.

“ Q. If he had wonld you have been likely to have known it? A. I believe I would have been likely to have known it. I had his other affairs in hand and paid him over money from time to time. I never saw him with any thirteen hundred dollars of his, or any large sum of money about the time of the conveyance, and I was in the office with him, I kept his accounts and his safe.

“Q. "What was William S. Sugg’s condition, so far as money matters were concerned, after the execution, of this conveyance? A. Generally he had no large sum of money.”

And again speaking of using the lands conveyed to W. P. Sugg to pay the debts of W. S. Sugg, the witness says:

“Q. Did you ever hear any conversation between William S. Sugg and Willie P. Sugg about this conveyance of these lands? A. I remember once, while both W. S. and W. P. Sugg were living,' a letter came from some men in Cincinnati addressed to W. S. Sugg, containing a proposition to buy some lands from him, W. P. Sugg. William and William P. were not immediately together at that time. Willie broke, open the letter and read it; he said, ‘All right;’ he said a good deal about selling lands at that time; I don’t remember exactly what he did say; the gist of his conversation, however, was that if those men were willing to pay so much per acre for the lands they — I believe he said, ‘We will sell them to them. ’ William S. Sugg, in conversation with me, always spoke of these lands as his.”

Geo. Crumb, an attorney for some of the creditors, says:

‘ ‘ Q. What conversations did you have with Wiley P. Sugg in relation to these claims? A. (No' answer).

“Q. Go on and tell, please? A. I had been trying to make some effort to collect the claim.' through Ben Walker, who was administrator of the estate of W. S. Sugg.

“Q. Well, what passed between you and Wiley P. in reference to this matter? A.' He introduced me to Wiley P. Sugg, is my recollection.

“Q. Now go on, and tell what passed? A. Mr. Sugg talked but very little, but he said that if he was given time that those claims would all be paid, he was satisfied.

“Q. That is, Wiley P. told you that? A. Yes, sir. Every honest claim he intended should be paid that his brother had contracted in these matters.

££Q. Did he tell you how he expected to pay those claims? A. I can’t say that he stated how it would be paid, but he went on to say that he expected to see them all paid, that he had transactions with his brother and that it was his intention to pay them all off, out of the proceeds of the land which he had obtained from his brother.”

H. H. Bedford, another attorney with claims, says, on th© same subject:

“Q. State if you know Wiley P. Sugg? A. I knew him when I met him. I never had any dealings with Wiley P. Sugg of consequence; met him and had a little talk with him, but never had any acquaintance with him.

‘ ‘ Q. What was the occasion of your going to Wiley P. Sugg? A. I went to see Wiley P. Sugg, because I was assured that he would assist in the payment of the claims.

££Q.. Who gave you that assurance? A. My recollection is that I received that assurance from Wm. S. Sugg and Benjamin Walker.

££Q. (Col. Clopton:) How long after that conversation with Wm. S. Sugg was it before you saw Wiley P. Sugg? A. Well, I don’t know. My recollection about that is that Wiley P. Sugg went with me — that William S. Sugg went with me to Wiley P. Sugg and we three talked the matter over.

“Q. Now please state to the court as fully as you can, Major, what was said by the two Suggs and what was said by yon concerning the payment of the claims which yon held against William S. Sugg?

“Q. Go on, and answer, please? A. I couldn’t undertake to say that I could make anything like a succinct statement of what was said, but the object of my meeting, or going there, was to see if I could make an arrangement with him by which the claims could be paid and Win. S. Sugg told me that his brother would assist him in making any arrangement which could be made by which the debts could be paid.

“Q. What did Wiley P. Sugg say, give the substance of his remarks if you can, .Major? A. The only statement I can make with reference to that was that I understood from Wiley P. Sugg that the position he occupied toward his brother was he would assist him in paying off any debts that could be paid with land.

“Q. What lands were mentioned, please sir? A. Well, I don’t know that any specific lands were mentioned, but it was understood between us at that time that it was the lands that had been conveyed by the county to Wm. S. Sugg, and part of which had subsequently been conveyed to Wiley P. Sugg.

“Q. Did you at any subsequent time meet Wiley P. Sugg with reference to receiving any part of those lands in satisfaction of your claims? A. I don’t think I ever had any conversation with Wiley P. Sugg about making any specific arrangements except the fact that at the time he and I had a conversation first, he said if he could make sale of the lands and spoke to me about it and asked me if I would be instrumental or asked me to assist him in making sale of the lands and said if that could be accomplished he was ready to pay the claims at any time, and I think at different times he and I talked about the prospect of getting money to pay these claims out of the lands.

“Q. Was anything said at any of these interviews about your clients taking lands in payment? A. Where the idea originated I don’t know now that I can state, but it was understood between me and William S. Sugg before his death and Wiley P. Sugg, too, that if the claimants would be willing to take the lands they would convey the lands in payment, an amount sufficient to pay the debts at a fair price.

“Q. Do you remember what price was demanded for those lands? A. As to any specific lands I don’t know that I could state, but there was a statement to the effect that if they would pay as much as ten dollars an acre for the good lands they would pay the debts in lands at that price, and the claimants I had anything to do with thought it an exorbitant price and wouldn’t agree to pay it.

“ Q. About how long after the conveyance of Wm. S. Sugg to Wiley P. Sugg of this land were these conversations held? A. To be anything like precise, I can’t do that, but it was not a great while after the conveyance. It was only a few years, for I never knew Wiley P. Sugg but perhaps from a year to eighteen months — that is about the space of time I knew Wiley P. Sugg as a man to be here.”

And the same witness further says:

“Q. And you think it was about six months before Wm. S. Sugg’s death? A. That the interview between Wiley Sugg and Wm. Sugg and myself took place?

‘£ Q. Yes, sir. A. I think it was; I say six months ■— it was several months before his death.

“Q. Did Wiley P. Sugg, Major, on that occasion refer to the lands he had acquired from his brother, "Win. S. Sugg? A. He referred to them in this way. The conveyance that was made to him intended to assist him in making an arrangement to settle these debts.

“Q. How is that? A. No special agreement about it at all. He said that the arrangement that had been made by the transfer of the lands from William to him was to enable William to pay his debts.”

There are some other excerpts from testimony hearing upon this question, but these are sufficient. In our judgment this whole transaction was one gotten up between the two brothers to save this land from execution sales of the creditors and eventually force the creditors to take land at a then exorbitant price in settlement of their claims, i. e., ten dollars per acre. The remainder would then be saved to them. In other words, there was a distinct understanding between them to hinder and delay creditors, and to the extent of forcing them to take lands at an exorbitant price to defraud creditors. We are also impressed with the idea that W. P. Sugg was simply holding these lands for the ultimate use of himself and his brother W. S. Sugg. Under all the circumstances of this case, it is hardly reasonable that W. P. Sugg would be assuming the entire contract for just one-half of the agreed contract price, and pay $1,380 for the privilege. The amount $1,380 is significant. Why the odd eighty dollars in a big deal? W. S. Sugg was a lawyer and some lawyers imagine that odd dollars or cents give an honest coloring to a fraudulent transaction. The evidence tends to controvert the idea that $1,380 was actually paid. Certain it is that no part of it went to pay the debts of W. S. Sugg. By one witness it is shown that W. S. Sugg said that he was going to work upon the rivers until such time as he got patents to the land and then he would throw it up as he had a bad contract. This, it' is true, was bar room talk, hut the conduct of the parties afterward indicates that such might have been the purpose. The evidence is overwhelming that W. P. Sugg, whilst ostensibly working for several years, did but little work, and intended to do but little. The boat he purchased for the work cost him $55, and was something like ten by fourteen feet in dimensions, drawing one and one-half feet of water. He cleared out some smart weeds, cut out a few logs and brush, and according to some evidence, notched a few trees, in order that his own narrow boat might pass through. He couldn’t have spent much money in the work, according to all the testimony. To bur minds his evident purpose was to assist his brother in holding the lands already patented, so that the creditors would not get them, and perhaps at the same time, through a friendly court, get. patents to the other lands, and then, after the clouds had passed, there would be a division of the spoils. The volume of evidence is great and much of it irrelevant and immaterial, but when boiled down, to our mind no other conclusion can be reasonably reached than that this deed was the outgrowth of an'agreement between these two brothers to place this property beyond the reach of creditors at that time.

We therefore hold such deed to be fraudulent and void as to these plaintiffs, the creditors of W. S. Sugg. The case is one not so much of law as it is one of fact. When the facts are settled, the law is undisputed and of easy application. We have thus far tried to consider the case as if it were being tried in 1880, when the original judgment was rendered. In other words, upon the facts and conditions existing as of the date the petition was filed. Subsequent matters we take next.

ni.

The decree of 1880 does not impress us as it seems to have impressed the able and distinguished counsel for the defendants. W. P. Sugg died after the institution of the suit and after answer’ was filed. Hacher & Davis, shown to be reputable attorneys, filed his answer. Mr. Hacher, it seems, served for awhile in, Congress. Mr. Davis was appointed guardian ad litem of the heirs of W. P. Sugg, minors at the time, since reaching their majority, and having in this record their own answer. Mr. D'avis filed the usual answer for a guardian ad litem. Motion was made to quash the deposition of B. T. Walker taken in 1878. This motion was sustained one day by the court, and the next day by agreement the order sustaining the motion was set aside. Upon this act is predicated the alleged fraud in the decree of 1880. Walker had signed this deposition, although there may have been irregularity in the taking thereof. He was the brother-in-law of W. S. Sugg and the administrator of his estate. Mr. Davis could have reasonably and honestly concluded that the deposition as given was as favorable as he could expect, even upon i a retaking of the same. This is perhaps what he did conclude. He was, to say the least, an appointee of the court, and the court was in the county where all the facts were known. No court would permit a grevious wrong to be perpetrated upon minors, and we are not of opinion that Judge Owen sat by and permitted such. The representative of the W. P. Sugg estate in Tennes-. see was unable to reach the trial and trial was had with the result indicated in what we have heretofore said of this decree of 1880. Counsel claim that it was a compromise decree, and such it may have been, but the time of the compromise does not strike us as it does counsel. They contend that there was no trial in fact but that the decree was agreed upon before hand. To our mind there are two things which conclusively refute this contention. First, if there was an agreed decree to be entered, there was no reason for reinstating the deposition of Walker. Second, the motion for new trial filed at the time, shows that evidence was heard, as does also the judgment. To our mind, the matter occurred thus: Counsel for the defendants concluded that they had nothing to gain by the retaking of Walker’s deposition; the trial was had and the court indicated a judgment for plaintiffs; thereupon this motion for new trial was filed, no doubt accompanied with threats of an appeal. Then it was, in our judgment, that the agreement between counsel to'exempt the two thousand acres occurred, and then came the decree which was written up and entered. This will account for the fact that the motion was permitted to lie dormant so long. If there was an agreed decree prior to this motion, no motion would have been filed. Had Mr. Davis agreed that plaintiffs might even make formal proof and take their decree, provided they would exempt two thousand acres, there would have been no motion for new trial. We feel satisfied that the agreement was reached after the motion was filed and the announced judgment of Judge Owen was modified into the decree as entered. This was evidently the understanding the clerk had when, in making up the docket for the next term, he marked this case as it appeared upon the May docket as “Off.” [See 142 Mo. 358.] So the letter of Mr. Davis to his clients notifying them of the result, would indicate as ■ much. We believe this matter was in good faith and that the guardian ad litem, so far as indicated in the record, should not be charged with fraud.

We have gone through this matter for a purpose, other than that of exonerating Mr. Davis. He is long since dead and what we may say can neither add to nor take from whatever reputation he left with his people. These plaintiffs were there at that time, of full age and represented by counsel. They permitted the decree to be thus entered. By their agreement, it was thus entered. Under the record in this cáse, the heirs of W. P. Sugg have sold at least seven hundred acres of this exempted land. Other portions may have been sold and passed into the hands óf innocent persons upon the faith of this decree, entered by the consent and agreement of these plaintiffs. If the defendants have sold this two thousand acres, they are estopped, and by the actions of the plaintiffs, in agreeing to this decree, they should not be permitted to reap the benefits, especially as against innocent purchasers, if such there be, and seven hundred acres at least have been sold. ,To give plaintiffs this two thousand acres would be inequitable. To disturb these titles at this date would work a hardship. The other titles under this same decree of 1880 have passed as if no deed had been made. For the reasons heretofore given this case should be and is reversed, but it being one in equity we will direct a judgment in conformity with our views of the equities of the case, and one which will in no wise disturb the titles. We have the whole case before us, and in our judgment equity and justice will be reached by directing a decree in conformity with the decree of 1880.

The judgment of the trial court is therefore reversed, and the cause remanded with directions that judgment be entered for plaintiffs, setting aside the deed from W. S. Sugg to W. P. Sugg, except as to the following lands, therein described, to-wit:

“All of section 30, east half of section 28, all of township 14, southeast quarter of section 24, all in township 17 north, in range 8 east, and lots 1, 2, and 3, in section 15, and lots 1, 2, 3, 4, 6, 7 and 8, in section 28, all in township 17 north, range 7 east.”

As to such lands said deed to be valid and binding, and that plaintiffs have judgment for costs in this court, as well as in the circuit court.

All concur, except Fox, J., who dissents, and Burgess, J., who was not present at the argument and does not sit.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    HEMAN CONSTRUCTION COMPANY, Appellant, v. WABASH RAILROAD COMPANY et al.
    In Banc,
    July 13, 1907.
    1. BENEFIT ASSESSMENT: Railroad Property. Under the charter of St. Louis expressly providing that “all property” in the defined benefit district shall be subject to special taxes for the improvement of the streets, railroad rights of way, being private real property, are subject to an assessment for local street improvements. [Disapproving Sweaney v. Railroad, 54 Mo. App. 265.]
    2. -: -: Public Highway. Nor is the right of way of a railroad company exempt from local improvements for benefits on the ground that both by the Constitution and statutes railways are declared to be public highways. A railroad is not a public highway within the meaning of these words used in the Constitution exempting “public highways” from taxation.
    3. -: -: Lien. Nor will the lien of the special tax-bill be held to be invalid because the roadbed or, right of way of the railroad company, or a part thereof, cannot be sold under execution to satisfy a judgment that may be rendered on the taxbill against the company. It is sufficient to hold that the taxbill is a lien. The matter of its enforcement will be determined when that'question arises. But as a general rule “where there is a right there is a remedy.”
    Appeal from St. Louis City Circuit Court. — Hon* Daniel G. Taylor, Judge.
    Reversed and remanded.

      Hamilton Grover, Hickman P. Rodgers and Charles W. Bates for appellant.
    (1) One claiming exemption from taxation sustains the burden of proving specifically the authority by which the exemption is made. The charter of St. Louis, by authority of which this tax was levied and assessed, provides that “the remaining three-fourths of the cost so ascertained shall be levied and assessed as a special tax upon all the property in the district to be defined and bounded as hereinafter provided.” There is no exemption of railroad property or railroad right of way in the charter. Charter, art. 6, sec. 14. (2) While the Constitution of Missouri (art. 12, sect 14) provides that “railways” are “public highways,” such declaration has reference only to the objects and purposes mentioned in that section of the Constitution. A railway is not a “public highway” within any meaning of that word which would exempt it from taxation, either general or special. Constitution, art. 12, sec. 14; Nevada v. Eddy, .123 Mo. 546. (3) Land owned by a railroad company upon which is constructed its main line of tracks, constituting what is commonly called its “right of way,” is subject to special assessment for local improvements. While this is an open question so far as the Supreme Court of Missouri is concerned, the weight of authority in other jurisdictions is overwhelmingly in favor of the liability of such property for special assessment and against its exemption therefrom. Nevada v. Eddy, 123 Mo. 546; Railroad v. People, 170 HI. 228; Railroad v. Elmhurst, 165 HI. 148; Rich v. Chicago, 152 111. 18; Railroad v. Joliet, 153 111. 649; Railroad v. Kankakee, 164 HI. 604; Railroad v. Hays, 17 Ind. App. 265; Railroad v. Haum, 68 Ind. 567; Railroad v. Paving Co., 24 Ind. App. 114; Railroad v. Peterson, 5 Kan. App. 108; Railroad v. Connelly, 10 Ohio St. 159; Railroad v. Mt. Pleasant, 12 Iowa 112; In re Railroad, 32 Cal.- 499; Ludlow v. Railroad, 78 Ky. 357; Railroad v. Jersey City, 42 N. J. 97; Railroad v. Barber Asphalt Pav. Co., 197 IT. S. 430 (49 Law Ed. 819).

      Henry W. Blodgett for respondents.
    (1) The purposes for which countries and cities may levy and collect taxes, and the time and manner in which property may be assessed and taxed by municipal authority, are under the absolute and sole control of the Legislature. State ex rel. v. Railroad, 9 Mo. App. 532; Railroad v. Watson, 61 Mo. 57; State ex rel. v. Severance, 55 Mo. 378. ’(2) The taxbill in controversy has no life except as a lien on the specific property therein described. In no other respect is there liability in law or in equity, as there can be no personal judgment in this State. Sweany v. Railroad1, 54 Mo. App. 265. (3) No lien can exist or be enforced against a portion of the right of way of a railroad company. Sweany v. Railroad, 54 Mo. App. 265; Dunn v. Railroad, 24 Mo. 493; McPheeters v. Bridge Co., 28 Mo-. 467; Schulenburg v. Railroad, 67 Mo. 442; Knapp v. Railroad, 74 Mo. 374; Cranston v. Trust Co., 75 Mo. 29; Ireland v. Railroad, 79 Mo. 572; Skrainka v. Rohan, 18 Mo. App. 345; Dugan v. Railroad, 43 Mo. App. 675. (4) The court has no power to determine that the assessment on a part of the tract of land here in question is valid. State ex rel. v. Railroad, 114 Mo. 1. (5) The tract of land here in question is a part of a public highway, and as such is not subject to this assessment.
   BURGESS, J.

This is a suit on a special taxbill, for street improvement, issued by the city of St. Louis in favor of the plaintiff, against real property in said city owned in fee by the defendant railroad company, and upon which the other defendants in the case hold incumbrances by way of deeds of trust, part of which property is used by said defendant railroad company as part of its right of way over which it operates trains. The origin of the special taxbill was the enactment of an ordinance by the Municipal Assembly of the city of St. Louis, providing for the paving of Audubon avenue with vitrified brick, between Taylor and Euclid avenues, in said city.

The petition is in the usual form for the enforcement of a special taxbill issued by tbe city of St. Louis for proportionate cost of construction of a street adjacent to the property of tbe defendant railroad company. It alleges tbe incorporation of tbe various defendants, their interests in tbe property, wbicb is fully described, tbe particulars of tbe taxbill, notice of tbe issuance thereof, and concludes with prayer for judgment for tbe amount of tbe bill, with interest and costs, and that tbe same be declared a special lien against tbe real estate described.

Tbe amended answer of tbe defendant railroad company, and of all tbe other defendants answering, sets forth tbe defenses: First, general denial; second, that tbe pretended assessment violates tbe Constitution and laws of Missouri and of tbe United States; third, exemption from assessment; fourth, that tbe land assessed is exempt because a part of a right of way, and, therefore, a public highway; fifth, exemption from said assessment, and any lien claimed thereunder, as a right, privilege, title and immunity guaranteed under tbe Constitution and laws of Missouri and of tbe United States, and tbe charter of tbe city of St. Louis.

It was admitted by counsel that tbe special taxbill sued on, No. 19590, dated November 7, 1903, and wbicb was introduced in evidence without objection, was signed by tbe proper officers of tbe city of St. Louis, and that said taxbill remains unpaid; that notice of issuance of tbe said taxbill was duly given- to defendants by plaintiff, and that on tbe fifth day of April, 1904, defendant, tbe Wabash Railroad Company, was duly served with notice to tbe effect that owing to its failure to pay tbe first installment of said taxbill within tbe time provided by law, plaintiff, as bolder of said bill, bad exercised its option and declared tbe entire bill to be immediately due and collectible.

Tbe evidence shows that tbe main line of tbe Wabash railroad on wbicb its trains pass eastward and westward, run on and along the length of the strip of land in question, hut that a portion of same, fronting twenty-fiye feet on Euclid avenue and extending eastwardly between parallel lines, at least two hundred and fifty feet, had no tracks upon it at the time of the assessment and trial. Defendant offered evidence showing that it had paid certain special taxbills arising out of the same street improvements and1 which were assessed against its. ground fronting Euclid and Audubon avenues, laid off and platted as lots, and upon which no railroad tracks were laid, and which was not used for railroad purposes.

The cause was tried without a jury. At the conclusion of the evidence, plaintiff asked the court to declare the law as follows:

“The court, sitting as a jury, declares the law to be that the special taxbill offered and received in evidence makes a prima-facie case for plaintiff, and that it being admitted that defendants are the owners in fee of the property described in said taxbill, the mere fact that railroad tracks are laid on portions of said ground and constitute a part of the main line of the "Wabash railway company between St. Louis and Kansas City, is no defense to plaintiff’s cause of action;” which requested declaration of law the court refused to give, and1 plaintiff duly excepted.

At the instance of defendants, the court declared the law as follows: “The court gives, at the request of defendants, the instruction that, under the pleadings and all evidence, plaintiff is not entitled to recover,” to the giving of which declaration of law plaintiff duly excepted.

At the same term of court judgment was rendered against plaintiff and in favor of defendants for costs, from which judgment plaintiff, after filing an unsuccessful motion for a new trial, appealed toi this court.

Section 5, article 10, of the Constitution of Mis-, souri, provides: “All railroad corporations in this State, or doing business therein, shall be subject to taxation for State, county, school, municipal and other purposes, on the real and personal property owned or used by them, and on their gross earnings, their net earnings, their franchises and their capital stock.”

While a distinction is made between' local assessments and taxes levied for general revenue purposes, in that an assessment for a local improvement is not a tax within the meaning of the constitutional provision requiring uniformity of taxation, it is in a sense a tax, not, however, for the purpose of sustaining the government, but imposed upon individual property upon the theory that such property receives a special benefit different from the general .one which the owner enjoys in common with others; in other words, an assessment for benefits.

That portion of section 14, article 6, of the amended charter of the city of St. Louis, under which the assessment in this case was made, is as follows: ■

“Special taxes for the improvements of streets, avenues and public highways shall be levied and assessed as follows: The total cost of grading and preparing the roadbed for the superstructure, placing foundation, curbing, guttering, roadway paving and crosswalks for the street embraced in the improvement, including all intersections of streets and alleys, shall be ascertained and one-fourth thereof shall be levied and assessed upon all the property fronting upon or adjoining the improvements, in the proportion that the frontage of each lot so fronting or adjoining bears to the total aggregate of frontage of all lots or parcels of ground fronting upon or adjoining the improvement, and the remaining three-fourths of the cost so ascertained, shall be levied and assessed as a special tax upon all the property in the district to be defined and bounded as hereinafter provided, in the proportion that the area of each lot or parcel of ground or the part of snch parcel of ground lying within the district bears to the total area of the district, exclusive of streets and alleys.

“The districts herein referred to shall be established as follows: A line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district, except as hereinafter provided, namely: If the property adjoining the street to be improved is divided into lots, the district line shall be so drawn as to include the entire depth of all lots fronting on the street to be improved. If the line drawn midway as above described would divide any lot lengthwise or approximately lengthwise, and the average distance from the midway line so drawn to the nearer boundary line of the lot is less than twenty-five feet, the district line shall in such case diverge to and follow the said nearer boundary line. If there is no parallel or converging street on either side of the street to be improved, the district line shall be drawn three hundred feet from and parallel to the street to be improved; but if there be a parallel or converging street on one side of the street to be improved to fix and locate the district line, then the district line on the other side shall be drawn parallel to the street to be improved and at the average distance of the opposite district line so fixed and located. Provided, that if any property in a district established as herein provided is not liable to special assessment, the city shall pay the proportion of cost of the improvement which would have been assessed against such property. All of the property in the lots, blocks or tracts of land lying between the streets to be improved and the district lines established as above specified, shall constitute the district aforesaid.”

It will be noted that this section expressly provides that ‘‘all the property” in the district to be defined and bounded as therein provided shall be subject to special taxes for the improvement of streets, avenues and public highways. It exempts no property from its operation, and if the defendant railway company is exempt from the taxes sued for, the burden rests upon it to show why it is so exempt.

Under the law of this State, as declared by the higher courts, it is well settled that special assessments for local improvements are a constitutional exercise of the taxing power (Garrett v. St. Louis, 25 Mo. 505; Heman v. Allen, 156 Mo. 534; Barber Asphalt Paving Co. v. French, 158 Mo. 534; S. C., 181 U. S. 324), and that “it is within the power of the Legislature of the State to create special taxing districts, and to charge the cost of local improvements, in whole or in part, upon the property in said district, either according to valuation or superficial area of frontage.” [Webster v. Fargo, 181 U. S. 394; Prior v. Construction Co., 170 Mo. 439; Asphalt Paving Co. v. French, supra; Spencer v. Merchant, 125 U. S. 345; Egyptian Levee Co. v. Hardin, 27 Mo. 495.] , It has also been ruled that the provisions of article 10 of the Constitution of Missouri, in regard to taxation, are applicable only to taxation in the ordinary acceptation of the term, and are inapplicable to these , special assessments (Farrar v. St. Louis, 80 Mo. 379, and cases cited), and the same rule is held as to sections 3, 4 and 11, as to the uniformity of taxation. [Farrar v. St. Louis, supra; St. Joseph to use v. Owen, 110 Mo. 445.]

It is insisted by defendant that the taxbill sued on has no life except as a lien upon the specific property described therein, and that unless the lien sought to be enforced can attach to the specific property described in the petition and taxbill there can be no recovery, be-' cause there can be no personal judgment.

In this State there is no personal liability of the property-owner for special assessments, hence special taxes therefor are a charge against the property only. Rnt it is contended that in the case at bar the lien would have to be enforced against a fractional, part of a railroad right of way, which would be against public policy, and could not be done unless authorized by the Legislature in language not to be doubted. Such is the doctrine announced in the case of Sweany v. Railroad, 54 Mo. App. 265, upon which defendant relies as sustaining its position. This decision is bottomed upon Dunn v. Railroad, 24 Mo. 493; Abercrombie v. Ely, 60 Mo. 23; Schulenburg v. Railroad, 67 Mo. 442; Knapp v. Railroad, 74 Mo. 378, and Skrainka v. Rohan, 18 Mo. App. 344, with respect to which it is said: “These were cases mainly for the enforcement of mechanics ’ liens against railroad bridges, depot buildings and the like, based on the general provisions of the mechanics’ lien law allowing such liens for labor and materials furnished for all buildings, erections, improvements, etc. It was admitted that the erections of the railroad might come under the terms buildings or improvements of the mechanics’ lien law, but yet it was said to be against the policy of the law to permit the enforcement of a lien against a detached portion of a railroad. The railroad is declared public in its nature; that if a portion of its right of way was thus allowed to be taken its capacity for serving the public would be destroyed; hence it was said, ‘that it is better to suffer a mischief which is peculiar to one than an inconvenience which may prejudice many.’ [Dunn v. Railroad, 24 Mo. 495.] ” Practically the same rule is announced in McCutcheon v. Railroad, 72 Mo. App. 271.

Where words of general description are used in reference to taxation, such as “all property,” they include everything of that kind not expressly, or by necessary implication, excepted. [State ex rel. v. Railroad, 153 Mo. 157.] So that there can be no doubt that the words “all property,” as used in the city charter, include all railroad property; and railroad rights of way being private real property, they are, unless specially exempted, subject to assessment for local improvements under the terms of section 14 of article VL of the amended charter of the city of St. Louis.

In the case of Railroad v. Connelly, 10 Ohio St. 159, the question was, whether lands which had been condemned for railroad purposes, before the making of a street improvement, upon which lands the railroad track was built after the improvement was completed, and which lands crossed the improved street at right angles, were liable to assessment for the improvement. It was held that the assessment was valid. The court, after stating that railroad tracks are liable for general taxes, said:

“If railroad tracks are taxable for general purposes, it is difficult to perceive why they should not be subject also to special taxes or assessments. The company, to advance its own interests, has seen fit to appropriate to its use ground within the corporate limits of the city of Toledo, and over which that city had the power of making assessments to defray the expenses of local improvements, and why should not the company be held to have taken it cum onere¶ A citizen would scarcely claim exemption because he had devoted his lot to uses which the improvement could not in any way advance, and we see no good reason why a railroad company should be permitted to do so. . . . But it is said that assessments, as distinguished from general taxation, rest solely upon the idea of equivalents, a compensation proportioned to the special benefits derived from the improvement, and that, in the case at bar, the railroad company is not, and! in the nature of things cannot be, benefited by the improvement. It is quite true that the right to impose such special taxes is based upon a presumed equivalent; but it by no means follows that there must be in fact such full equivalent in every instance, or that its absence will render the assessment invalid. ... No general rule, therefore, could be laid down which would do equal and exact justice to all. The Legislature have not attempted so vain a thing, but have prescribed two different modes in which the assessment may be made, and left the city authorities free to adopt either. The mode adopted by the council becomes the statutory equivalent for the benefits conferred, although in fact the burden imposed may greatly preponderate. In such case, if no fraud intervene, and the assessment does not substantially exhaust the owner’s interest in the land, his remedy would seem to be to procure, by a timely appeal to the city authorities, a reduction of the special assessment and its imposition, in whole or in part, upon the public at large.”

The same rule is announced in the case of Railroad v. Hanna, 68 Ind. 562.

In the case of Chicago v. Baer, 41 Ill. 306, it is held that a street railway was subject to assessment for the improvement of the street upon which it was located.

In Railroad v. Chicago, 90 Ill. 573, it was held that the right of way, right of occupancy, franchise and interest in a street railway company having a track in a street under a charter of the Legislature, and under a contract with the city council, is a property, and as such is liable to be assessed for benefits in the widening of the street upon which it runs its cars the same as any other property benefited by the proposed improvement. To the same effect is Railroad v. Chicago, 176 Ill. 501.

In Railroad v. Peterson, 51 Pac. 290, it is held that the right of way and switch yards of a railroad company are liable for an assessment to contribute to the expense of local improvements such as sewers and the like. The same rule is announced in Railroad v. East Lake Pork Drainage Commissioners, 129 Ill. 417; Railroad v. East Lake Pork Drainage Commissioners, 134 Ill. 389.

It was held in the case of Railroad v. Barber Asphalt Paving Co., 76 S. W. 1097, that the right of way of the railroad company is liable to assessment for a street improvement. See, also, Figg v. Railroad, 75 S. W. 269; Orth v. B. B. Park & Co., 79 S. W. 206 ; Commissioners of Chatham County v. Seaboard Air Line, 133 N. C. 216; Railroad v. Lindquist, 119 Iowa 144.

In City of Ludlow v. Trustees of the Cincinnati Southern Ry. Co., 78 Ky. 357, suit was brought by the contractor, J. W. Eich, against the appellant and the trustees of the Cincinnati Southern Eailway Co., to recover an assessment made by the city upon a lot belonging to the trustees, and abutting on the improved street. The trial court held that the lot was necessary for the operation and maintenance of the railway, and refused to subject it to the payment of the claim, and rendered judgment against the city. Upon appeal, the correctness of that ruling was questioned. The court said: “While assessments of this character, as distinguished from general taxation, rest upon the basis of benefits or presumable benefits to the property assessed, it is not essential to their validity that actual enhancement in value, or other benefit to the owner, shall be shown. The passage of the ordinances by the city council, under the power granted in the charter, is conclusive of the propriety of the improvement, and of the question of benefit to the owners of abutting property. [Railroad v. Connelly, 10 Ohio 164.] Absolute equality in the distribution of such burdens cannot be attained. An approximation to equality is all that is possible, but in reaching this point the present or prospective use of the property cannot enter into the calculation.” It was held by the court in that case that the city of Ludlow, having levied an assessment upon all real estate lying upon a certain street within its limits for the purpose of improving the street, a lot upon the street owned by the appellee, the Cincinnati Southern Railway Co., was subject to the assessment, and that the fact that the lot was the property of a railway company, and used for railroad purposes, furnished no more reason why it should be exempted from an assessment than if it belonged to a natural person.

In Railroad v. Barber Asphalt Paving Co., 197 U. S. l. c. 433, it is said:

“There is a look of logic when it is said that special assessments are founded on special benefits and that a law which makes it possible to assess beyond the amount of the special benefit attempts to rise above its source. But that mode of argument assumes an exactness in the premises which does not exist. The foundation of this familiar form of taxation is a question of theory. The amount of benefit which an improvement will confer upon particular land, indeed whether it is a benefit at all, is a matter of forecast and estimate. In its general aspects at least it is peculiarly a thing to be decided by those who make the law. The result of the supposed constitutional principle is simply to shift the burden to a somewhat large taxing district, the municipality, and to disguise, rather than to answer, the theoretic doubt. It is dangerous to tie down Legislatures too closely by judicial constructions not necessarily arising from the words of the Constitution. Particularly it is important for this court to avoid extracting from the very general language of the Fourteenth Amendment a system of delusive exactness in order to destroy methods of taxation, which were well known when the amendment was adopted, and which it is safe to say that no one then supposed would he disturbed. . . .

“That, apart from the specific use to which this land is devoted, land in a good sized city generally will get a benefit from having the streets about it paved, and that this benefit generally will be more than the cost, are propositions which, as we have already implied, a Legislature is warranted in adopting. But, if so, we are óf opinion that the Legislature is warranted in going one step further and saying that on the question of benefit or no benefit the land shall be considered simply in its general relations and apart from its particular use. On the question of benefits the present'use is simply a prognostic, and the plea a prophecy. If an occupant could not escape by professing his desire for solitude and silence', the Legislature may make a similar desire fortified by structures equally ineffective. It may say that it is enough that the land could be turned to purposes for which the paving would increase its value. Indeed, it is apparent that the prophecy in the answer cannot be regarded as absolute, even while the present use of the land continues — for no one can say that changes might not make a station desirable at this point; in which case the advantages of a paved street could not be denied. We are not called upon to say that we think the assessment fair. But we are compelled to declare that it does not go beyond the bounds set by the Fourteenth Amendment of the Constitution of the United States.”

Judge Elliot, in his work on Railroads, vol. 2, sec. 786, says: “There is a conflict in the adjudicated cases as to whether or not the right of way of a railroad company is subject to local assessment. The question has been discussed in a great number of instances, and different conclusions reached in apparently similar cases. The latest authorities on the subject, however, recognize what we believe to be the true rule, and that is, that where the right of way receives a benefit from the improvements for which the assessment is levied, and there is no statute exempting the railroad company from local assessments, in clear and unequivocal terms, it is subject to assessment.”

After discussing the adjudications which hold that the right of way of a railroad company may be assessed' for local improvements, Gray, in his work on Limitations of Taxing Power and Public Indebtedness, section 1913, says:“ On the other side are several respectable authorities. If they be closely examined, however, it will be found that the question was one of fact in the particular eases.” The author then cites City of Bridgeport v. Railroad, 36 Conn. 255; Railroad v. Grand Rapids, 106 Mich. 13; Philadelphia v. Railroad, 33 Pa. St. 43; Railroad v. Philadelphia, 88 Pa. St. 424; Borough of Mt. Pleasant v. Railroad, 138 Pa. St. 365; Allegheny City v. Railroad, 138 Pa. St. 375; Railroad v. Ottumwa, 112 Iowa 300; Railroad v. Milwaukee, 89 Wis. 506; Railroad v. City of Elizabeth, 37 N. J. L. 330; Railroad v. City of Passaic, 54 N. J. L. 340; Boston v. Railroad, 170 Mass. 95. In each of these cases the question was one of fact, that is, absence of benefit to the property against which the assessment was made.

Nor is the right of way of defendant exempt from local assessment for benefits upon the ground that by section 14, article 12, of the Constitution of Missouri, and sections 1127 and 1128, Revised Statutes 1899, railways are declared to be public highways. In passing upon this question in City to use v. Eddy, 123 Mo. l. c. 60, Gantt, P. J., speaking for the court, said:

“ ‘The declaration in the Constitution that railways in this State are ‘ ‘public highways ’’ in the connection in which it appears, obviously was not intended to throw them open as thoroughfares for pedestrians. Its object was to lay a foundation for certain' kinds of legislative regulation of railways, but not to change the nature of the railroad property, or to divert it from the general purpose for which it was designed.’ Nor is it in any sense a warrant to use the cars of a railway company without the payment of reasonable tolls and in defiance of the management and regulation of the. company. . . .

“Neither is the position of defendants true, that, because they are, by the Constitution, ‘public highways, ’ all of their property is exempt from special assessment, just as a public state or county road1 would be.

“The railroad of the company is not in this extreme sense the work of the State. The roadbed and the depot grounds are not public property managed by the company as an agent of the State. On the contrary, the company is a private corporation; its stock is the private property of its stockholders, who, as such, own its property. Because its function is to serve the public as a public carrier the State has invested it with the power of eminent domain and reserved to itself the power of visitation and regulation to protect the public so as to secure reasonable fares and tariffs and proper police regulation, but the stockholders, not the State, pay for its property and easements, and it becomes their property.

“The State taxes all of its property for general governmental purposes, so that, while for many beneficial purposes it is a ‘highway’, it is misleading to speak of it as a highway in the strict sense of exemption from taxation, because this power is reserved to the State, and is constantly exercised over all of its property. The courts have differed widely in their opinions on this subject, even as to taxing the right of way for local improvements, but the case in hand does' not call for an expression on the last proposition.’'’

If the right of way is taxable for general purposes, it is somewhat difficult to see why it may not be assessed for local improvements from which it is presumed to derive some special benefits not enjoyed by the general public.

If an improvement is to be made, tbe benefit of which is local, the property benefited thereby should, upon every principle of justice, bear the burden. While the few ought not to be taxed for the benefit of the whole, neither should the whole be taxed for the benefit of the few. General taxation for a mere local purpose is manifestly unjust. It imposes a burden upon those not benefited by the improvement. The ordinance having expressly imposed the burden upon “all property” in the district specially benefited by the improvement, without exempting any, the question is whether an exemption ought to be implied by the courts in favor of the railroad right of way. We think not.

Our conclusion is that, according to the decided weight of authority and the better reason, the right of way of the defendant was properly assessed for local improvements, and that the declaration of law asked by plaintiff should have been given, and the declaration of law given at the instance of defendant refused. It follows that in so far as the case of Sweany v. Railroad, 54 Mo. App. 265, is taken as authority for the contention that the right of way of the defendant company cannot be charged with the lien of the special taxbill sued on for street improvements made under the charter of the city of St. Louis, it is overruled.

As to the proposition urged against this lien, that-the roadbed or right of way of the defendant, or a part thereof, could not be sold under execution to satisfy any judgment which may be rendered in favor of plaintiff in this case, it is not necessary for us to express an opinion at this time. What we do hold is that, under the charter and ordinance, the taxbill sued on in this case is a lien against that part of the right of way of the defendant company described in the taxbill. We do not feel called upon to determine how such judgment can be enforced, but it is probable that counsel will be able, if necessary, to accomplish such result. As a general rule, “wbere there is a right, there is a remedy.” [2 Dillon’s Municipal Corporations (4 Ed.) sec. 822; McInery v. Reed, 23 Iowa 410; Lima v. Cem. Association, 42 Ohio St. 128; New York v. Colgate, 12 N. Y. 140.] And this case, we think, forms no exception to that rule. Our conclusion is that the judgment should he reversed and the cause remanded. It is so ordered.

Gantt, G. J., Valliant, Graves and Woodson, JJ., concur; Lamm and Fox, JJ., dissent.