author: FEEEISS, J.

text:
    J. B. WHITE v. HIMMELBERGER-HARRISON LUMBER COMPANY, Appellant.
    Division Two,
    February 6, 1912.

    1. TAX SUIT: Against Record Owner. In the absence of actual knowledge of the real owner, a judgment in a suit for taxes against the record owner, with notice by publication to such record owner, is good against the holder of an unrecorded deed, and a sale under execution thereunder conveys the title as against the holder of such unrecorded deed.
    2. -: -Where Name of Grantee Has Been Incorrectly Copied in Record. And this rule applies where the name of the grantee in the deed has by mistake of the recorder been incorrectly recorded, so that the record owner appears to be other than the true owner. In such case, where the suit for taxes is brought against the record owner on notice by publication to such record owner, the purchaser at the tax sale is protected in his title. Where the statute (Sec. 2810, R. S. 1D09) says the filing of the deed for record imparts notice of its contents from and after the time of filing, it means that the deed itself imparts notice until copied into the record, and after it is so copied the record and the record only imparts notice. So that where the grantee was O. H. P. Williams and the recorder, in copying the deed, by mistake wrote the initials O. N. P., changing the middle initial from H to N, and the deed was returned to; the grantee, and thereafter suit for delinquent taxes upon notice by publication to O. N. P. Williams was brought against- O. N. P. Williams, the purchaser at the execution sale took the title as against O. H. P. Williams. [Following Yance v. Corrigan, 78 Mo. 94, and Terrell v. Andrew County, 44 Mo. 1. c. 312, and refusing to adopt the limitations placed thereon by Troyer v. Wood, 96 Mo. 478.]
    8. -: -: -: Estoppel. . The rule that “wherever one of two innocent parties must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it,” applies, not to the grantor in a deed, to whom there is to be imputed no negligence in failing to see that the deed is properly recorded by the recorder, but to the grantee who files the deed for record and upon whom is the duty to see that it is susceptible of a fair copy. So that, by the rule of estoppel, where the grantee was O. H. P. Williams and the recorder made the record read O. N. P. Williams, and the H in the initials in the original deed might easily be mistaken for an N, the grantee, or true owner, O. H. P. Williams, should suffer the loss, as against the purchaser under a judgment in a suit for taxes brought against O. N. P. Williams on notice by publication.
    4. -: -: -: Sufficiency of Notice by Publication: Immateriality of Middle Initial. The deed described the grantee as O. H. P. Williams, and the recorder, by mistake, made the record show O. N. P. Williams to be the grantee. Held, first, that, inasmuch as the owner, Williams, took the deed by his initials, the rule that a mistake in the middle initial is immaterial applies; and, second, that the published notice addressed to O. N. P. Williams, stating that suit had been filed to enforce the State’s lien for delinquent taxes on land owned by O. N. P. Williams, such notice properly describing the land, was a sufficient notice to O. H. P. Williams of his identity with the defendant in the suit.
    5. DEED: Record of Unrequired Matter as Notice. One who examines the records of deeds is not required, as a matter of law, to read what is not required to be recorded. The deed was drawn on a Pennsylvania form, and named O. H. P. Williams as grantee, and the recorder in recording the deed by mistake made the record read O. N. P. Williams as the grantee. In the left-hand corner' of the deed, opposite the certificate of the notary, was a blank filled in and signed by the grantor, reciting that he had received from the grantee, O. H. P. Williams, the consideration. Held, that the record of this receipt did not put a purchaser at a tax sale in a suit brought upon notice by publication to O. N. P. Williams upon notice of the mistake in the name in the body of the deed as recorded, in the absence of actual knowledge on his part that the name had not been correctly copied or such knowledge as would put him on inquiry, since the receipt was no part of the deed and was not by law required to be recorded.
    Appeal from Stoddard Circuit Court.— Eon. ,7. L. Fort, Judge.
    Reversed.

      Oliver & Oliver, Ralph Wammack, G. D. Corum and Martin L. Clardy for appellant.
    (1) The tax collector in instituting suits, for the enforcement of the lien for delinquent taxes, in the absence of notice to the contrary, may look to and rely upon the record of deeds to see who the owner of the property is, and the purchaser under the judgment in such suits will be protected in his purchase against the holder of an unrecorded deed. Vanee v. Corrigan, 78 Mo. 97; Hunt v. Sack, 79 Mo. 663; Payne v. Lott, 90 Mo. 680; Evans v. Robertson, 92 Mo. 200; Allen v. Ray, 96 Mo. 546; Nolan v. Taylor, 131 Mo. 227; Weir v. Lumber Co., 186 Mo. 395; Schnitger v. Rankin, 192 Mo. 42; Evarts v. Lumber Co., 193 Mo. 444; Wood v. Smith, 193 Mo. 484; Stuart v. Ramsey, 196 Mo. 414; McDermott v. Cray, 198 Mo. 286; Harrison v.- Bowers, 200 Mo. 232’; Land & Lumber Co. v. Bippus, 200 Mo. 688. (2) Proceedings to enforce tax liens, while they are not strictly in rem, are to be proceeded with as ordinary actions against real estate. The court is only authorized to render special judgment against the land to enforce the lien of the State, and even though personal service be had on the owner there can be no personal judgment. The land stands for the taxes and the judgment is ag’ainst the land, not against the owner. The ownership of the land is but a mere incident of the prosecution of the action. Eitchell v. Kreider, 84 Mo. 472; Milner v. Shipley, 94 Mo. 106; Stewart v. Allison, 150 Mo. 343. (3) The owner of land is presumed to know under what name he holds title of record. The same record that notifies the collector who the owner of the land is, for the purpose of enforcing the State’s lien for taxes, likewise notifies the owner how he holds title of record. Bishop v. Schneider, 46 Mo. 477; Terrell v. Andrew Co., 44 Mo. 309; Hilton v. Smith, 134 Mo. 509; Schnitger v. Rankin, 192 Mo. 42. (4) This judgment places the burden and duty on the public to make inquiry dfíhors the record, and of acquiring actual knowledge from private sources of information, that each man’s deed has been correctly recorded. This duty under the law rests upon the recorder and the grantee in the deed or instrument recorded. If the former fails to do his duty lie is liable on his bond, to the grantee in the deed, if the latter fails to do his duty, he ought to be made to submit to any loss, incpnvenience or burden that may flow, from his neglect. No purchaser can safely rely on judicial sales and. the public records of the State if this 'judgment of the trial court stands. B. S. 1899, secs. 923, 924, 9062, 9068, 9057, 9075; Ritchie v. Griffith, 12 L. B. A. 384. (5) Williams took this deed from Burns by initial letters. The deed does not disclose what the initial letters represent. The commonwealth or State could only know Williams’s name by an examination of the land records when it sought to compel him to pay the taxes due the State. B. S. 1899, sec. 923, 924. When, therefore, he reads a published notice addressed to him by the same initials he has advised the public to be his initials, describing the land and informing him that the taxes' thereon are delinquent, his identity is sufficiently indicated to require him to plead to the action, or be estopped to question the validity of a judgment thereon, when raised collaterally. Elting v. Gould, 96 Mo. 535; Mosely v. Riley, 126 Mo. 129 ; Nolan v. Taylor, 131 Mo. 227; Iiilton v. Smith, 134 Mo. 508; Turner v. Gregory, 151 Mo. 105; Vincent v. Means, 184 Mo. 344; Schnitger v. Rankin, 192 Mo. 43. (6) The middle letter is no part of the name. Its absence or misrecital does not affect the question of identity one way or the other. Orme v. Shephard, 7 Mo. 606; State v. Martin, 10' Mo. 391; Phillips v. Evans, 64 Mo. 23; Beckner v, McLain, 107 Mo. 288; Lucas v. Land Co., 186 Mo. 453; Ploward v. Brown, 197 Mo. 46.

      Louis F. Dinning and Keaton & Keaton for respondent.
    (1) Appellant’s first point has no application whatever to the case. All of his citations are applicable only to purchasers and owners of land who have put their deeds to record and afterwards sold them to another purchaser who failed to put his deed to record; that is not this cáse. Troyer v. Wood, 96 Mo. 478; Chamberlain v. Blodgett, 96 Mo. 482; Williams v. Butterfield, 214 Mo. 414. While it is true no personal judgment can be rendered in a tax suit and that the suit is authorized against the record owner, yet the purchaser only gets the title of the party made defendant, and if he has no title, the purchaser gets none. Moore v. Woodruff, 146 Mo. 601; Land & Lumber Co. v. Tie Co., 87 Mo. 176; Harrison v. Bowers, 200 Mo. 219. It is not true that the owner of land is presumed to know of errors or mistakes or misprision of the recorder in recording his deeds, when the certificate of record shows it has been duly and correctly recorded. See. 924, E. S. 1899. When the grantee of a deed properly acknowledged files the same with the recorder for record and pays the fees therefor he has complied with the law and done all required of him to be done to protect a subsequent purchaser. 20 Am. & Eng. Ency. Law (2 Ed.), sec. 162; Webb on Eecord Title, sec. 16; Polk v. Cosgure, 4 Biss. (U. S.) 445; Ponche v. Swaim, 80 Ala. 153; Case v. Hargadine, 43 Ark. 144; Meherin v. Oaks, 67 Cal. 57; Lewis v. Hinman, 56 Conn. 55; Kizer v. Heuston, 138 111. 252; Chandler v. Scott, 127 Inch 226; Lee v. Bermingham, 30 Kan. 312; Gillispie v. Eodgers, 146 Mass. 610;'People v. Bristol, 35 Mich. 28; Mangold v. Barlow, 61 Miss. 593; Clader v. Thomas, 89 Pa. St. 343; Williams v. Butterfield, 214 Mo. 424. (2) For the sake of argument alone, we may admit that it was the duty of O1. H. P. Williams, the grantee, to see that the recorder did his full duty, and recorded the deed correctly. That would avail this appellant nothing, for it is not an innocent purchaser. There is no pretense of claim on the part of the appellant or any one else in this record, that the recorder made but one mistake in recording this deed, and that was in the grantee’s name in the granting clause thereof. The letter “H” was written an “N.” This deed written on a Pennsylvania form, which has a receipt on the face of the deed and is a part thereof, not merely a receipt in the body of the deed, which is merely formal, and it says: “Received, the day and date of the above indenture, of the above named O. H. P. Williams the sum of fifty-seven hundred and sixty dollars, lawful money of the United States being the consideration money above mentioned, in full.” In this receipt the name O. H. P. Williams is recorded correctly by the recorder. This receipt is written upon the face of said deed and above the acknowledgment thereof by the notary public. Anyone examining the title to the land in question and found the record to this deed with the above receipt written thereon would be furnished notice to put any reasonable persons on inquiry as to the correct status of this deed. Por this receipt furnishes information to the inquirer that the grantee in said deed was O. H. P. Williams, and that he paid the consideration therefor in cash and the payment thereof was witnessed by the notary public, who took the acknowledgment to said deed, as part of one and the same instrument and contract, and shows beyond a doubt that O. H. P. Williams bought the land and paid for it, and is the person named in the granting clause of said deed. Williams v. Butterfield, 214 Mo. 412. (3) It is true Williams took his deed by the initials of his name, but when he is sued by his initals of his Christian name, he must be sued by his correct initials in the deed by which he took the land, not by what the recorder placed , on the record, if sued by publication. Turner v. Gregory, 151 Mo. 105; Spore v. Land Co., 186 Mo. 659; Howard v. Brown, 197 Mo. 46; Vincent v. Means, 184 Mo. 344; Burkham v. Manewal, 195 Mo. 506; Parker v. Parker, 146 Mass. 321; State v. Higgins, 601 Minn. 1; Massillon Engine Co. y. Hold-ridge, 68 Minn. 394; Price v. State, 19- Ohio 424.

      Note. — Decided May 23, 1911. Motion for rehearing filed/ Motion overruled July 1, 1911. Motion to transfer to Court in Bane filed. Last motion overruled February 6, 1912.

   FEEEISS, J.

Suit to quiet title. Williams Burns, the common source of title, on November 19, 1869, deeded the property in controversy to Oliver Hazard Perry Williams, giving the initials only of his first names, so that in the body of the deed the granting clause was to O. H. P. Williams. This deed was written upon a Pennsylvania form, the grantors living in Pittsburg, and upon this form, in the lower left-hand corner, opposite the certificate of the notary, is a blank which was filled in and signed by the grantor, Burns, reciting that he had received from the grantee, O. H. P. Williams, the consideration mentioned in the deed. The deed was filed by Williams with the recorder on May 7, 1870. In due time he received back the deed from the recorder, with the usual certificate stating that the deed had been duly recorded in Book M, giving the pages. This deed was copied by the recorder into the records, but in place of the initials O. H. P. in the body of the deed, the recorder by mistake wrote the initials O. N. P., changing the middle initial from H. to N. The recorder also copied the receipt above mentioned, which was included in the form of the deed, and in copying that receipt he correctly copied the initials as O. H. P. The property becoming delinquent for taxes, the collector of the county brought suit against the record owner, O. N. P: Williams, and service was had by publication by such initials. The suit resulted in a judgment against O. N. P. Williams, sale under the execution and purchase at such sale by defendant’s grantor, who received the sheriff’s deed dated March 8,1881, and who had no notice of the mistake in the record. Subsequently, and before the institution of this suit, the heirs of O. H. P. Williams conveyed the- property to plaintiff, who filed this suit. Judgment was rendered for the plaintiff, the court rejecting the sheriff’s deed and the subsequent deeds to the defendant on the ground that the judgment against O'. N. P. Williams was void as against the heirs and grantees of the true owner, O. H. P. Williams. Defendant also pleaded title by adverse possession. The defendant’s offer of proof under the defense of adverse possession was objected to as being insufficient, and the objection was sustained by the court.

Urging the reversal of this judgment, the defendant asserts (1) that the sheriff’s deed to its grantor conveyed a good title, because the judgment in the suit for taxes was against the record owner, O. N. P. Williams, and was binding on the true owner notwithstanding the mistake made by the recorder; (2) that the mistake in the middle initial was unimportant, and the judgment upon notice by publication against O. N. P. Williams was good as against O. H. P. Williams; (3) that the offer of proof to sustain title by adverse possession should have been admitted by the court.

On the other hand, plaintiff contends that the mistake in the middle initial was fatal; also that the record was not controlling as against the true owner because of the mistake made by the recorder in changing the letter H to N. Plaintiff also contends that as the record showed the initials to be O. H. P. in the receipt attached to the deed and copied correctly into the record, the subsequent purchaser was put upon notice of the mistake in copying the initials in the body of the deed into the record.

In addition to the above, it may be necessary to advert to other facts in the course of the opinion.

I. (a) Numerous decisions of this court hold that a judgment in a suit for taxes against the record owner, with notice by publication to such record owner, is good against the holder of an unrecorded deed. The leading case is Vance v. Corrigan, 78 Mo. 94, in which this court said: “We are of opinion that the provision ■of the charter requiring the suit to be brought against the owner of the land, does not mean that it must, in order to render tlie judgment valid, be brought against the real owner, although holding by an unrecorded conveyance, but it means that suit must be brought against the person appearing by the registry of deeds to be the owner, in the absence of notice to the contrary. The proceeding is really against the land, although a personal defendant is necessary to the validity of the proceeding, but no personal judgment can be rendered in the suit, and it is sufficient to proceed against the record title when the true owner is unknown. We are also of opinion that a purchaser at a regular execution sale under a judgment duly rendered in such suit, will acquire the same rights which he would acquire by purchase from the execution defendant. If Corrigan had notice of the Vance title, the burden was on plaintiffs to show it.”

The foregoing decision is cited with approval in many subsequent cases, down to and including Land and Lumber Company v. Bippus, 200 Mo. 688, where Pox, J., speaking for the court says: “It is no longer an open question in this State that the officers in suits wherein it is sought to enforce the lien of the State for taxes, in the absence of notice to the contrary, may look to the record of deeds to see who the owner of the property is, and a purchaser under the judgment in such suits against the record owner, in the absence of notice that such person against whom the suit was brought was not the true owner, would be protected in his purchase against the holder of an unrecorded deed from such apparent record owner.”

The doctrine of these cases agrees with the common understanding of the people, and has become a fixed rule of property.

We are now called upon to decide whether this rule applies where the name -of the grantee in the deed has been by mistake of the officer incorrectly recorded, so that the record owner appears to be other than the true owner. In such case is the purchaser at the tax sale protected in his title, the suit being against the record owner on notice by publication to such record owner? It is claimed by the defendant that if we would protect the integrity of our registry system we must answer this question in the affirmative. The defendant contends that the recorder acts as the agent of the person who files his deed for record. The plaintiff claims that when the holder of the deed files the instrument with the recorder and pays the filing fee, his duty is done, and he is under no obligation to see that the recorder performs his duty, and that a failure by the recorder to perform his duty will not endanger his title.

'With reference to the filing and recording of deeds and other instruments in writing, section 2810, Revised Statutes 1909, provides as follows:

“Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof, and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice.”

This section does no more than say that notice is imparted by the record back to the date of filing; so that during the interval between the filing and the copying into the record the deed itself will impart notice. After the deed has been copied into the record subsequent purchasers must look to the record alone, the deed itself having been returned presumably to the owner. If the officer should return the deed to the owner, certifying that it has been recorded, but should fail to make any record thereof, it could hardly be claimed that a subsequent purchaser would be bound to take notice of the filing of the deed and of its contents.

It is claimed in effect by plaintiff that the filing of the deed imparts to subsequent purchasers notice of its contents, even if it be incorrectly recorded, and that the subsequent purchaser is bound to take notice of the contents of the instrument notwithstanding the imperfect,record. On this point Wagner, J., in Terrell v. Andrew County, 44 Mo. l. c. 312, says: “The statute says that when the deed is certified and recorded it shall impart notice of the contents from the time of filing. Certainly; but this is to be understood in the sense that the deed is rightly recorded, .and the contents correctly spread upon the record. It never was intended to impose upon the purchaser the burden of entering into a long and laborious search to find out whether the recorder had faithfully performed his duty. The obligation of giving the notice rests upon the party holding the title. If he fails in his duty, he must suffer the consequences. If his duty is but imperfectly performed, he cannot claim all the advantages and lay the fault at the door of an innocent purchaser.” In the above ease Andrew county loaned four hundred dollars to one Holt and took from him a mortgage for that amount and filed the same for record. By mistake of the recorder the record recital of the amount was two hundred dollars. The court held that as against a subsequent incumbrancer the county could claim only two hundred dollars, the amount shown by the record. The court says: “The county deposited the deed with the recorder, and paid him for recording it. Through his negligence and inattention he did his work inaccurately, so that it imparted notice for only half the consideration, and the county suffered loss and injury in consequence thereof. The privity springs and exists between the county and the recorder, and the county is the proper party to proceed against him to recover the loss.” In this case Judge Wagner clearly sustains the doctrine for which defendant contends.

In Troyer v. Wood, 96 Mo. 478, a deed to Daniel Troyer was recorded in the name of Daniel Tragar, and tax proceedings were had in such record name, with service by notice of publication, upon which there was a judgment and sale. The circuit court held the tax proceedings void upon the ground that the affidavit of non-residence was defective. Apparently no point was made either in the circuit court or in this court on the change of name. Sherwood, J., however, speaking for the court, ignored the question of the sufficiency of the affidavit, which was the question passed upon by the court below, and held the proceeding void as against the heirs of Troyer, on the ground that Troyer was not a party thereto, nor in privity with the record owner, Tragar. The decision refers to Terrell v. Andrew County, supra, and concedes the doctrine therein laid down, but holds that the notice of publication should be directed either to the true owner or to one in privity with the true owner. The limitations placed by this decision upon the doctrine so frequently announced by this court, that the subsequent purchaser may rely upon the record, cannot now be recognized.

The case of Williams v. Butterfield, 214 Mo. 412, also relied upon by plaintiff, is a case of spoliation of the record and not in point here.

In Whinnery v. Lumber & Mining Co., 231 Mo. 262, the doctrine of the Troyer case was not controverted by the parties, who stood upon the proposition that in point of-fact there had been no mistake in copying the deed into the record, and the court found the facts to be as claimed in this respect. The court was not called upon to pass upon the effect of a mistake in the record, nor upon the proposition involved in the Troyer case.

We think that the case of Terrell v. Andrew County and the case of Vance v. Corrigan, taken together, correctly expound the law, and that the doctrine of these cases has never been ovei’turned by any later decision of this court.

The authorities in other jurisdictions are in conflict on this question, but the cases holding to the contrary of the conclusion reached by us are based largely upon the statutory provision to the effect that the deed shall from the time of its filing impart notice of its contents. On this point, wé approve the doctrine announced by Wagner,, J., in Terrell v. Andrew County, as quoted above, and which, so far as we are advised, has not since been criticised by this court. Obviously one cannot be required to learn from the-record facts which are not in the record. When the statute says that the filing of the deed for record imparts notice of its contents from and after the time of filing, it must mean that the deed itself imparts notice until copied into the record, and that after it is so copied, the record and the record only imparts notice. In this we think we are in line with the greater-weight of authority. [See Ritchie v. Griffiths, 1 Wash. 429, and note thereto in 12 L. R. A. 384.]

(b). The doctrine of estoppel may also be invoked by the defendant. The rule respecting two innocent parties is thus expressed in 16 Cyc., p. 773: “Wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it.” This rule in its practical application usually, if not always, involves something of negligence or remissness on the part of the one who enables the third person to commit the wrong. It may be justly argued that there is not the slightest negligence on the part of the owner in failing-to see that a deed is not properly copied into the record by the official designated by law for that purpose. On the other hand, it must be conceded that one who files a deed for record is responsible for its contents and condition when it leaves his hands, and that the duty is upon him to see that the instrument is susceptible of a fair copy. In this case the original deed to O. H. P. Williams was submitted for our inspection. It was argued on behalf of the defendant that the middle initial therein shown is the letter N, and not H. The appearance of the initial in the body of the deed so strongly resembles an N that it could easily pass for that letter; and the writer does not hesitate to say that until he compared- the initial with the letter N in the words “November” and “Number”, in the same page, he agreed with defendant’s contention. The writer of this deed evidently wrote the letter IT in a form not now in frequent use. The letter used by him lacks the lower left-hand loop which was so familiar in copy books, and, as written, the letter could easily be taken for an N. The subsequent mistake by the recorder was due to the act of Williams in filing a deed with the said initial so written that such mistake could easily happen. Doubtless the recorder should, if in doubt as to the identity of a letter, make careful comparison with other parts of the deed. In this case, however, the recorder made a mistake which he probably would not have made had the grantee seen to it, as he should have done, that his name was so clearly written that no mistake by the copyist was likely to occur.

We hold, upon both grounds above stated, that the sheriff’s deed conveyed a good title to the purchaser at the tax sale.

II. In discussing the question whether suit with notice by publication against O. N. P. Williams will bind the owner, O. H. P. Williams, it will be proper to first notice some propositions which have been established by the decisions of this court: - .

(a) Where there are two given names in the record, service by the middle name alone by publication is bad. [Corrigan v. Schmidt, 126 Mo. 304; Turner v. Gregory, 151 Mo. 100.]

(b) IVhen the first name is correctly given in the suit and notice of publication, an omission of or mistake in the middle initial is unimportant. [Howard v. Brown, 197 Mo. l. c. 46, and cases cited; Nolan v. Taylor, 131 Mo. 229.]

(c) Suit and substituted service by tbe initials only of the first names, where the full first name appears in the record, is not good. [Shuck v. Moore, 232 Mo. 649, where the cases are cited by Lamm, J.].

(d) Where the record title shows the initials only of the given name, suit and notice by publication by such initials will bind the record owner, on the theory of estoppel. [Elting v. Gould, 96 Mo. 535; Ohlmann v. Sawmill Co., 222 Mo. l. c. 66.]

In the ease at bar we have a new question, viz.: When the grantee takes a deed by his initials, three in number, will a suit by substituted service against him be good, when a mistake is made in the middle initial? As applied to this case, the question is, will a judgment upon substituted service for taxes against O. N. P. Williams, be good against O. H. P. Williams, who is the true owner?

No man can be deprived of his property by suit without due notice. In regarding notice by publication as effective against the owner of the property, we must indulge the presumption that he sees such notice. We have then this situation: O. H. P. Williams, residing outside the State, sees a notice that suit has been brought against O. N. P. Williams for delinquent taxes, which he knows are delinquent, and upon property described in the notice which he knows belongs to him. He cannot object that the notice names him by his initials, as he took the deed by his initials and, under the doctrine above stated, he is estopped. Had the notice read “Oliver N. P. Williams,” clearly he could not object under another doctrine above set out. Can he object because in place of “Oliver,” his first name, his first name is given as “0” ? In other words, is the initial “0” to be regarded as a name? Oridinarily, fur purposes of notice by publication, as we have shown above, initial letters are not regarded as the equivalents for the names for which they stand. But if the owner of the name sees fit to adopt the initials as and for the names for which they stand, and is held bound by them to the same extent as if the names themselves were inserted in the deed, why should not the same reasoning’ apply to each initial letter? If it does, then the owner, Williams, has adopted the letter “0” as his first name, and he must be held to the rules that apply when the full Christian name is used. In such case the rule is that a mistake in the .middle initial is not important. In this case there are three initials, the first and third of which are correct. It is urg’ed by the plaintiff that the doctrine of immateriality of the middle initial does not apply where the owner’s name is set out by initials, even though he took the deed by his initials. No case is cited to support this proposition. The cases cited from other States are not in point. Massachusetts repudiates the Missouri doctrine, and holds that a mistake in the middle initial is fatal. In State v. Higgins, 60 Minn. 1, cited by plaintiff, a divided court held that under a charge of forgery the changing of the name “Marion F. Higgins” to “Marion J. Higgins” was material when it was a question of identity between two people. In Engine & Thresher Co. v. Holdridge, 68 Minn. 394, the court held that where “C. S. Holdridge” was sued on a contract, it was not competent to introduce as his a contract signed by “S. Holdridge” without proof of identity. The same principle controlled the decision in Price v. State, 19 Ohio (Griswold) 424.

The decisions of this court, cited by plaintiff, throw no light upon this immediate question. They simply support the rule announced above, that where the record of the deed gives the full name suit with substituted service by initials is bad. The real question is, Does substituted service on O. N. P. Williams comply with the statute, and properly and fairly notify O. H. P. Williams of the suit? Upon the theory that such notices are rarely seen by the defendant, and are permitted only upon the ground of necessity, and result often in great hardship, it might be insisted that the statute should be rigidly eoustrued and followed. On this theory much might be said against allowing any departure from the true and complete name of the defendant. Yet this reasoning will apply with the same force, when the mistake is in the middle initial, whether the first name be given in full or by initial only. Upon the theory that the object of giving notice by publication is to fairly notify the owner, and identify him, it is proper to consider whether the notice by publication duly and fairly apprises the owner that the State is proceeding against his land for taxes. This court, by a recent decision, has adopted the latter theory. In Howard v. Brown, 197 Mo. 36, a tax suit was filed against Henry T. Brown, the owner, his real name being Henry P. P. Brown. This court, speaking through Valliant, J., pointed out the fact that both names, “Henry” and “Brown,” were usual names, and said that if there were two persons bearing the name “Henry Brown” in the same community, it would be going beyond our former decisions to hold that a publication of notice to Henry T. Brown would justify a judgment by default against Henry P. P. Brown. The court, however, held that inasmuch as defendant’s name was placed in a group composed of his mother’s, sisters ’ and other members ’ of his family, the publication was sufficient. It is obvious that the grouping of the names together bears only upon the question of identity, and cannot affect the question of rigid compliance with and construction of the statute. We must assume that O. H. P. Williams read this notice by publication. It advised him that suit for delinquent taxes had been filed against O. N. P. Williams, the lands, which were correctly described in the notice, belonging to him, O. H. P. Williams. He saw that the initials of his name, three in number, unusual in this respect, were correctly given except as to the middle initial. It is impossible to escape the conclusion that he knew that the notice was intended for him and that the suit was against him.

We are constrained to hold (1) that inasmuch as the owner, Williams, took the deed by his initials, the rule that a mistake in the middle initial is immaterial applies; (2) 'that the published notice addressed to O. N, P. Williams, stating that suit had been filed to enforce the State’s lien for taxes on land owned by O. N. P. Williams, such notice properly describing the land, was a sufficient notice to O. H. P. Williams of his identity with the defendant in the suit.

III. We cannot sustain the contention of plaintiff that the correct record of the initials “0. H. P.” in the receipt recorded with the deed put the subsequent purchaser upon notice of the mistake in the name in the body of the deed as recorded. This receipt was no part of the instrument, was not required by law to be recorded, and the examiner of titles was not bound to notice or read it. As a matter of fact, there is no proof that this receipt was brought to the attention of the subsequent purchaser. There is no proof that he had any knowledge that would put him upon inquiry as to whether or not the name was correctly copied in the record of the deed. One who examines the records is not required, as a matter of law, to read what is not required to be recorded.

IV. As the foregoing discussion finally disposes of the case, it is unnecessary to notice other points suggested by counsel.

In accordance with the views herein expressed, it becomes the duty of this court to reverse the judgment and direct the circuit court to enter up judgment vesting the title to the land in controversy in the defendr ant. It is so ordered.

Kennish, P. J., concurs; Broivn, J., not sitting.


source: Caselaw Access Project

author: YALLIANT, C. J.

license: Public Domain

text:
    In re FABIUS RIVER DRAINAGE DISTRICT v. JAMES A. SCOTT et al., Appellants.
    In Banc,
    February 9, 1912.
    1. DRAINAGE DISTRICT: Prayer for Incorporation: Not Contained in Articles. It is essential to the validity of the incorporation of a drainage district that there should be a prayer for incorporation when the matter is presented to the court, but it is not essential, under article 1 of chapter 41, Revised Statutes 1909, that the prayer should be embodied in the articles of incorporation. If the articles of association omit the prayer, but they are accompanied by a petition signed by the attorneys for the petitioners containing a prayer that “petitioners be declared a drainage district under and according to the provisions” of said article, and the articles and petition are filed together, the jurisdictional fact exists, and the requirements of the statute (Sec. 5496) are met, and an incorporation of a district in pursuance to such prayer is valid.
    2. -: -: Signed by Attorneys. The articles of association for a drainage district should be signed by the petitioners, but the petition accompanying them may be signed by their attorneys. A petition addressed to the court is properly signed by attorneys. An attorney at law represents his client in court and speahs for him.
    Appeal from Marion Circuit Court. — Hon. W. T. Ragland, Judge.
    Aeeirmed.

      Hays & Heather for appellants.
    (1) The articles of association cannot he aided hy the averments of the so-called petition. 16 Ency. PI. & Pr., 518; Alfter v. Hammitt, 54 Mo. App. 303; R. S. 1909; secs. 1756, 1854, 5496 to 5499; Rohland v. Railroad, 89 Mo. 182. (2) The articles of association should contain a prayer for incorporation. Payson v. People, 175 111. 267; Sanner v. Drainage Dist., 175 111. 575; Watkins v. Pickering, 92 Ind. 332; Crawford v. Ditching Assn., 44 Ind. 361; Smith v. Ditching Assn., '54 Ind. 235; Drainage Co. v. Nofsinger, 43 Ind. 566 ; R. S. 1909, secs. 5496 to 5499; R. S. 1909, sec. 1794; Lakey v. Hoopes, 80 Mo. App. 510. (3) The trial court had no jurisdiction of the subject-matter of the action or proceeding. Ellis v. Railroad, 51 Mo. 203;' Eaton v. County of St. Charles, 76 Mo. 492; Whitely v. Platte County, 73 Mo. 30 ; Railroad v. Young, 96 Mo. 42; Carter v. Arbuthnot, 62 Mo. 583; Rohland v. Railroad, 89 Mo. 182.

      Schofield & Plowman and F. L. Schofield for respondents.
    The articles of association filed herein, contain all the requirements of the statutes. R. S. 1909, sec. 5496; Laws 1911, p. 206; Land & Stock Co. v. Miller, 170 Mo. 240; Drainage Dist. v. Railroad, 139 S. W. 330.
   YALLIANT, C. J.

This is an appeal from a decree of the circuit court of Marion county incorporating the Fabius River Drainage District. The proceeding to organize the district is under article 1, chapter 41, Revised Statutes .1909. The articles of association were signed by a majority in interest of the owners of the land to be embraced in the district and they conformed in all respects to the requirements of ■section 5496 of the article above named, unless they were defective in one respect pointed out by appellants, that is, they did not contain a prayer for incorporation under that statute. The articles of association, however, were presented to the court, accompanied with a petition of the parties thereto, which referred to the articles of association as filed therewith and concluded as follows: “Wherefore your petitioners pray that they be declared a Drainage District under and according to the provisions of article 1, chapter 41, of the Revised Statutes of Missouri 1909,” signed, “Schofield and Plowman, attorneys for the above named petitioners.”

The articles of association and petition were filed together and at the same time.

The only point assigned as error by appellants is that the prayer for incorporation was not included in the articles of association, and this, appellants think, is a jurisdictional fact, which renders the whole proceedings null and void. The argument of appellants is that such a proceeding, being authorized only by statute and being an invasion of appellants’ common-law rights, cannot be made effective unless it conforms strictly to the statute. That argument invokes a sound principle of law, but that principle is not violated in this record. Section 5496, Revised Statutes 1909, does not literally require that the prayer for incorporation be included in the articles of association. The requirements specified are, the name of the district, the number of years it is to continue, its limits not less than 640 acres, names and places of residence of owners of the land in the district, description of the land owned by each, the owners unknown to be so stated, and that the petitioners are willing to pay the taxes to be assessed against their land to pay the expenses incident to the organization .and for the improvements necessary to effect the drainage and reclaim the land. Those are all the requirements specified, and all those the articles of association in this case contained. The statute then goes on to say: “And after said articles of association shall be signed, the same shall be filed in the office of the clerk of the circuit court of the county in which the drainage district is located, . . . praying that they may be declared a drainage district under this article. ’ ’ The syntax is not beyond criticism, but the meaning is discernible. The meaning is that after the parties desiring to be incorporated have signed the articles of association they shall file the same in the office of the clerk of. the circuit court “praying that they may- be declared a drainage district.” It is essential that there should be a prayer for incorporation, but it is not essential that the prayer should be embodied in the articles of association. A prayer for incorporation would be an unusual feature in articles of association, and is not ordinarily, if ever, required. Articles of association constitute one essential in the formation of a corporation and an application for the charter another. This distinction is observed in section 3432, Revised Statutes 1909, in relation to the formation of corporations under article 10 of chapter 41, wherein it is provided that the parties desiring to be incorporated shall submit to the court “the articles of association with the petition praying for a pro forma decree thereon.”

We do not say, in view of the somewhat uncertain form of expression used in this section 5496, that the prayer for incorporation should not be inserted in the articles of association, but we do say that it is sufficient if, as in this case, it is contained in a petition accompanying the articles of association and presente d to the court at the same time. .

It is objected that this petition is signed by the attorneys for the petitioners and not by their own hands. The petition which is addressed to the court is properly signed by the attorneys. An attorney at law represents his client in court and speaks for him. The articles of association are signed by the parties themselves and that is right, and that is all that the statute requires.

We find no error in the record. The judgment is affirmed.

All concur.


author: BROWN, J. WOODSON, J.

text:
    THE STATE ex rel. ELLIOTT W. MAJOR, Attorney-General, v. MISSOURI PACIFIC RAILWAY COMPANY et al.
    In Banc,
    February 9, 1912.
    1. ABUSE OF FRANCHISE: Insufficient Under Statute Invoked: Sufficient at Common Law. A petition to recover a statutory penalty, though insufficient under the statute which the pleader seeks to invoke, may still be sufficient to authorize a recovery at common law.
    2. -: Pleading: Prayer. The prayer of the information may be disregarded in determining whether it states a cause of action. If a cause of action is stated under any statute, or under the common law, the information is good against demurrer, although its prayer would seem to preclude the idea that it was based upon a certain section applicable to the offense charged.
    3. -: Quo Warranto: Pleading: Statement of Facts. In • proceedings in the nature of quo warranto to revoke the franchise of a corporation duly chartered or licensed to transact business in this State, the pleadings must conform to the general Code of Civil Procedure. The information should contain a plain and concise statement of the facts constituting the cause of action.
    4. -: -: -: Railroads: Combination to Fix Rates. An information charging that sixteen railroads entered into an agreement for the purpose ■ of lessening and destroying free competition in the transportation of passengers and freight, and that by said agreement they have fixed and regulated the rates for the transportation of both passengers and freight, but which nowhere purports to designate any of the rates agreed upon and alleged to have been fixed or maintained by them, or the length of time said rates, if fixed, shall continue, and which wholly fails to set out or describe the substance of the alleged wrongful agreement, does not state a cause of action of misuser, abuse or perversion of corporate powers.
    5. -: -: -: -: -: Conclusion of Law. An allegation in an information in a proceeding in the nature of a quo warranto that the agreement or combination to fix railroad rates entered into by respondent railroad companies is an illegal usurpation and an abuse and perversion of their corporate powers is merely a conclusion or presumption of law on the part of the pleader, and if not predicated upon alleged facts does not supply the lack of such definite- facts as should be specifically pleaded. The law does not prohibit every kind of contract or traffic .arrangement between railroad companies concerning the carrying of passengers and freight; if so, such an allegation would be sufficient. But there are many kinds of contracts that railroad companies may enter into with each other without violating any statute, the common law or the public policy of the State. [Following State ex rel. v. Grimm, 220 Mo. 483, refusing to follow State ex inf. v. Missouri Pacific Railway Co., 206 Mo. 40, and distinguishing State ex inf. v. Standard Oil Co., 218 Mo. 1. c. 364.]

      Held, by WOODSON, J., that an information charging in general terms a conspiracy to do an unlawful thing is sufficient, and need not set out the terms of the conspiracy or the means employed; but where the information undertakes to charge an unlawful conspiracy to do a lawful thing the means employed and the terms of the agreement must be pleaded. It is not unlawful in this State to charge less passenger and freight rates than certain maximum rates fixed by statute; but an agreement between railroad companies to charge certain definite rates less than the maximum rates, tends to deprive the public of the benefit- of competition between those companies, and is unlawful. But an information which in general terms charges that certain railroad companies entered into an agreement and combination to fix freight and passenger rates, without alleging „ what those rates were or are, or the means employed for fixing and maintaining them, does not state a cause of action. [Distinguishing State ex inf. v. Standard Oil Co., 218 Mo. 1. c. 367, and holding that case is in harmony with these views.]
    6. FORMER DECISIONS: Precedents. The reasons or discussions of an appellate court in deciding a case are not precedents in other cases in which a different state of facts are at issue.
    7. -: Of Other States: On Questions of Pleading. Rules of pleading announced by appellate courts of other States are not a safe guide for measuring the sufficiency of pleadings in this State, for the obvious reason that every State has its own code, and that may be wholly unlike Missouri’s.
    Quo Warranto.
    Demurrer sustained.

      Elliott W. Major, Attorney-General, Charles G. Revelle and James T. Blair, Assistant Attorneys-General, for the State.
    (1) Section 17, article 2 of the Constitution, and Sec. 1062, R. S. 1899, are violated when competing railway companies enter into an agreement and combination for the purpose of fixing, regulating and maintaining freight rates or passenger fares to be charged between points located in this State. Such agreements restrain and prevent competition, and the chief purpose sought to be accomplished by the above sections is to preserve free and open competition between and among railway companies and prohibit any and all arrangements which defeat such competition. Railroad v. State, 72 Tex. 404; Security Co. v. United States, 193 U. S. 351; Pearsall v. Railroad, 161 U. S. 676; Morrill v. Railroad, 55 N. H. 537; Currier v. Railroad, 48 N. H. 325; Railroad v. "Wear, 135 Mo. 230. (2) Such agreements are also illegal at common law as being in restraint of trade and commerce, against public policy, and violative of the law of the corporation’s creation. State ex rel. v. Gas Co., 153 Ind. 488; Railroad v. Railroad, 38 Ind. App. 244; Railroad v. Railroad, 3 Robertson, 415; Railroad v. Closser, 126 Ind. 348; Anderson v. 'Jett, 89 Ky. 375; Stanton v. Allen, 5 Denio, 434, 49 Am. Dec. 282; Hooker v. Vandewater, 4 Denio, 349, 47 Am. Dec. 258; Railroad v. Railroad, 41 La. Ann. 970; People v. Sheldon, 139 N. T. 251; Railroad v. Interstate Com. Commission, 39 C. C. A. 422; Pratt v. Tapley, 3 Pugsley N. B. 171; Sanford v. Railroad, 24 Pa. St. 382; Cravens v. Rogers, 101 Mo. 247; Clemens v. Meadows, 29 Ky. L. Rep. 619; Mfg. Co. v. Watch & Clock Co., 14 C. C. A. 14; United States v. Freight Assn., 166 U. S. 290; Joint Traffic Assn. v. United States, 171 U. S. 505; State v, Stewart, 59 Vt. 286; Railroad v. Collins, 40 Ga. 582; United States v. Freight Assn., 7 C. C. A. 88; Railroad v. Mining Co., 68 111. 494; "Security Co. v. United States, 193 U. S. 351; Mobile'v. Kimbrell, 102 U. S. 691; Gloucester v. Pennsylvania, 114 U. S. 196; Gibbons v. Ogden, 9 Wheat. 215; People v. Raymond, 34 Cal. 497; United States v. Pipe & Steel Co., 54 U. S. App. 723¡; State ex rel. v. Ins. Co., 152 Mo. 42; State ex rel. v. Standard Oil Co., 218 Mo. 1; Gibbs v. Gas Co., 130 U. S. 408; Coal Co. v. Coal Co., 68 Pa. St. 173; Brewing Co. v. Belinder, 97 Mo. App. 71; Commonwealth v. Carlisle (N. P.), Brightley, 38; Bailey v. Master Plumbers, 103 Tenn. 118; State v. Glidden, 55 Conn. 75; State ex rel. v. Stock Exchange, 211 Mo. 193 ; Beach on Monopolies and Industrial Trusts, par. 149; Noyes on Intercorporate Relations, p. 372; Spelling on Trusts and Monopolies, par. 82; Greenhood on Public Policy, p. 2661, 2662 and 2663; 1 Hawkins, P. C., p. 470, sec. 2; Stewart v. Trans. Co., 17 Minn. 395; State v. Board of Trade, 107 Minn. 505 ; State ex rel. v. Packing Co., 173 Mo. 388. (3) The common law in respect to such unlawful agreements has not been abrogated by statutory provisions, but the same is in full force and effect in this State. Coal Co. v. People, 214 111. 421; Branden v. Carter, 119 Mo. 581; Evans.v. McFarland, 186 Mo, 723; State ex rel. v. Standard Oil Co., 218 Mo, 360; Humphreys, v. Davis, 100 Ind. 284; Laws 1907, sec. 8970, p. 379;. Currier v. Railroad, 48 N. PI. 329. (4) The Anti-Trust Act, found at page 377, Laws 1907, applies to and covers the transportation of freight by railway, and the agreement which the second count seeks to condemn violates its provisions. Laws 1907, secs. 8965, 8968; United States v. Freight Assn., 166 U. S. 324; State ex inf. v. Standard Oil Co., 218 Mo. 1; State ex rel. v. Packing Co.,' 173 Mo. 356; State ex rel. v. Ins. Co., 152 Mo. 1. (5) The information, whether measured by the requirements of the common, constitutional or statutory law, is amply sufficient to state an unlawful combination. Laws 1907, sec. 8977, p. 381; Coal Co. v. People, 214 111. 421; State v. Dreany, 69 Pac. 182; State v. Stewart, 59 Yt. 286; State v. Shaw, 42 N.*H. 393; United States v. Gardner, 42 Fed. 829; Hazen v. Commonwealth, 23. Pa. St. 363; State ex inf. v. Standard Oil Co., 218 Mo, 1; State ex rel. v. Insurance Co., 152 Mo. 40; Knight & Jilson Co. v. Miller, 87 N. E. 827; State ex rel. v. Railroad, 206 Mo. 28. (6) The charter of a private or public corporation will be forfeited for any willful misuser or abuse of its franchise which injures or menaces the interests or welfare of the State, or the community in which it transacts business, whether the misuser or abuse consists in the exercise of a franchise or power not conferred on the corporation by its charter, or in the violations of prohibitions in its charter, or in the violations of the common, statutory or constitutional laws to which it is subject, or in the violation of established principles based upon the ground of public policy. State ex inf. v. Standard Oil Co., 218 Mo. 1; State ex rel. v. Delmar Jockey Club, 200 Mo. 70; Railroad v. State ex rel., 155 Ind.' 456; 2 Spelling on Extra. Remedies, pr. 1820; Stockton v. Railroad, 50 N. J. Eq. (5 Dick) 52; Attorney-General v. Railroad, 12 C. E. Gr. 631. (7) Both domestic and foreign railway companies, while doing businéss within this State and transporting persons and property between cities and communities located wholly within this State, and in fixing and maintaining rates and fares applicable solely to traffic within this State, are subject to State jurisdiction and amenable to the State laws governing such matters. Railroad v. Kentucky, 161 U. S. 701; State ex inf. v. Standard Oil Co., 218 Mo. 376; Ins. Co. v. Daggs, 172 U. S. 566; Com. Co. v. Spencer, 205 Mo. 118; Gibbons v. O'gden, 9 Wheat: 195; Thorp v. R. & B. Co., 27 Yt. 142; Bridge Co. v. Kentucky, 154 U. S. 209; sec. 5, art. 12, Mo. , Constitution ; 'sec. 14, art. 12 Mo. Constitution; Tenth Amendment to U. S. Constitution; Packing Co. v. Ark., 212 U. S. 322.

      E. L. Scarritt, Geo. P. B. Jackson, O. M. Spencer, Gardiner Lathrop, Frank Hagerman, John H. Lucas, J. G. Trimble,'Samuel W. Moore, B. A. Brown, Sam West, W. F. Evans, J. L. Minnis, Martin L. Clardy and W. G. Marshall for respondents.
    (1) The information does not state facts sufficient to constitute a cause of action. The information states no facts whatever. It states mere conclusions of the pleader. Pier v. Heinrichoffen, 52 Mo. 336; Sid-way v. Land & Live Stock Co., 163 Mo. 372; Chemical Co. v. Nemnich, 169 Mo. 396; Vogeler v. Punch, 25 Mo. 576; State ex rel. v. Grimm, 220 Mo. 490’. (2) The information is framed upon the erroneous hypothesis that this is. a proceeding’' to oust defendants from franchises they never had a right to exercise; in which cases it is only necessary for the Attorney-General to inform the court that the defendants are claiming a right to a franchise never granted, and then it devolves upon the defendants to affirmatively show the grant of charter powers; whereas, in this case, the Attorney-General informs the court that the defendants have been legally and properly granted charters and franchises by the State, and seeks to take the same away from them, not because they were not originally legally granted, but because they have misused and abused such charter powers and franchises. In such cases it is not sufficient for the Attorney-General to inform the court in general terms, by legal conclusions of his own, that the defendants have abused or misused their charter powers and franchises,-but it is necessary to state specifically the facts relied upon by the Attorney-General to show such abuse or misuse, so that the defendants may “be informed of the nature and cause of the accusation” (Amendment 6 to U. S. Constitution, and sec. 22, art. 2, Constitution of Missouri), in order that they may take issue thereon and properly prepare their defense thereto. This is the distinction between informations to divest defendants of charter powers never legally granted, and to forfeit legally granted powers because of abuse or misuse thereof. State ex rel. v. Grimm, 220 Mo. 491. (3) The information in this case is not sufficient even when measured by the precedents furnished in State ex inf. v. Railroad, 206 Mo. 28, or in State ex inf. v. Standard Oil Co., 218 Mo. 1. In both of those cases the Attorney-General undertook to state with precision the specific facts relied upon to authorize a forfeiture of the charter powers and franchises of the defendants, because of their abuse or misuse thereof, and did not, as the Attorney-General does in this case, simply inform the court generally that the defendants had entered into an unlawful conspiracy to fix and regulate prices. (4) The information in the case at bar is wholly defective even under Sec. 8977, Act of March .19, 1907, Laws 1907, p. 381. This section only makes it unnecessary to allege or plead “the manner in which, or when or where” such pool was created. In these respects only has this act made any change in the law in respect to pleadings in such cases, and these changes in the law are not sufficient to make the information in the case át bar sufficient. The manner in which a conspiracy denounced by the anti-trust laws was made or effected, relates only to the form of the agreement, whether in writing or oral, and does not pertain to the substance of the agreement at all. The substance of the agreement or conspiracy may be shown by either direct or circumstantial evidence, or may be inferred from the conduct of the parties, whilst the manner, fashion, or form of the agreement or conspiracy, or the time when or where the conspiracy was concocted, would not appear from the acts of the parties in carrying out the conspiracy. The manner, fashion or form of the agreement is of no consequence, neither is the time when or the place where the conspiracy was concocted' of any moment. These are immaterial circumstances. The substantive fact necessary to be alleged and proved is the agreement which offends against the antitrust laws. (5) The particular cause of complaint in this case is, not that the defendants are charging-higher passenger or freight rates than the law permits, but that they are acting in concert in charging what is a legal rate under the laws of Missouri, and by so doing are stifling competition. In other words, that each of the defendants has a right to do for itself what they all are alleged to have agreed to do, and therefore competition is destroyed, because it is argued that whilst the law permits the rates exacted by the defendants to be charged nevertheless, if the defendants acted separately, competition might induce them, while acting separately, to accept less than the legal rate for passengers' and freights. His contention would be'necessarily and logically the same whether the defendants had agreed among themselves to charge two cents a mile, or one cent a mile, or even a fraction of a cent a mile, for in any event without such an understanding among themselves, he says, competition might induce the several defendants to charge less than the rate they had agreed among themselves to charge, such rate always being within the maximum legal rate. The anti-trust laws of this State were not intended to afford the basis for such a drastic proceeding. Those laws were only intended to strike at illegal acts, and not at the doing of things which the law expressly permits.
   BROWN, J.

Information in the nature of quo warranto filed in this court on May 4, 1909, whereby the' State of Missouri seeks to revoke the franchises heretofore granted by it to sixteen railroad companies, on the alleged grounds that said railroad companies' have abused and perverted their corporate powers, or_ to impose a fine on said respondents in lieu of said revocation.

After reciting that seven of the respondent railroad companies were chartered by the State of Missouri, and the remaining nine dnly licensed to transact business in this State as foreign corporations, the information charges:

‘ ‘ That respondents have formed and entered into an unlawful agreement, confederation, combination and conspiracy wherein and whereby they have agreed, confederated and combined and conspired among themselves and with each other, to fix, regulate and maintain passenger rates within this State, and to determine, regulate and fix the rates to be charged by the several competing lines for the transportation of passengers between the various cities, towns, points, centers and communities located in this State, and on and along the lines of railway owned and operated by respondents, and for the unlawful purpose of limiting and destroying competition in the transportation of passengers over their' several lines in this State, and. for the unlawful purpose of depriving the public and people of this State of the benefits of full and wholesome competition, and for .the unlawful purpose of destroying, limiting and restraining open and independent action on the part of each of the respondents in the matter of passenger rates to be charged the people of this State.
“That by means of the said unlawful agreement, confederation, combination and conspiracy, the trade, traffic and commerce in this State has been hindered, injured and retarded, and that full and free competition in the transportation of passengers and the traveling public in this State has been limited and restrained, to the great damage and detriment of the public.
“That by reason of the acts and things done by respondents, as hereinabove set out, said respondents have been guilty of a willful, wrongful, illegal and malicious perversion and abuse of the franchises, licenses and authority severally granted to them by the State of Missouri, and of illegal and unlawful usurpations of privileges, franchises and powers not granted them, all of which is to the great detriment of the public and in violation of the laws and Constitution of the State of Missouri.
“That respondents have formed and created, entered into and become members of and participated in an unlawful agreement, combination, confederation, understanding and conspiracy wherein and whereby they have agreed, confederated, combined and conspired among themselves and with each other to fix, regulate and'maintain freight rates within this State, and to determine, regulate and fix the rates to be charged by said several competing lines for the transportation of products, commodities, articles and other freight between the various cities, towns, points, centers and communities located on and along their said lines in this State, and with a view and for the unlawful purpose of limiting, lessening, and destroying full and free competition in the transportation of products, commodities, articles and other freight over and along their several lines in this State, and with a view and for the unlawful purpose of depriving the people of this State of the benefit of full, free and wholesome competition in such transportation, and with a view and for the unlawful purpose of destroying, restricting and limiting free, open and independent action on the part of each of the respondents in the matter of freight rates to be charged the people of this State.
That said, respondents by means of said unlawful agreement, confederation, combination and conspiracy have fixed, determined and regulated the rates now charged and the rates to be charged hereafter for the transportation of products, commodities, articles and other freight over and along their several lines in this State, and are now- unlawfully maintaining the rates so fixed and determined by the unlawful means aforesaid, and have limited and lessened and are now restraining full and free competition in the transportation of products,. commodities and other articles of freight, and are hindering, injuring and retarding the trade, traffic and commerce in this State, to the great damage and detriment of the people.
“That by reasons of the acts and things done by respondents, as hereinabove set out, said respondents have been guilty of a willful, wrongful, illegal and malicious perversion and abuse of the franchises, licenses and authority severally granted to them by the State of Missouri, and of illegal and unlawful usurpations of privileges, franchises and powers not granted them, all of which is to the great detriment of the public, and in violation of the laws and Constitution of Missouri. ’ ’

Concluding with the prayer: “That respondent corporations, each and all of them, severally, be excluded from all corporate rights, privileges and franchises enjoyed or exercised by them under the laws of the State of Missouri, and that their rights, authority, licenses, franchises and certificates to do business in the State of Missouri be declared forfeited, or in lieu thereof a fine be imposed upon them in punishment of the offense, as above set out.”

To the foregoing information respondents filed separate demurrers,' the substance of which is covered by one which reads as follows:

“The information does not state facts sufficient to constitute a cause of action against this respondent.
“An agreement between railroad companies, such as is charged in the information, is not an unlawful agreement.
“The information does not state facts which show that respondent has committed any acts which are not authorized by its charter; or that it has violated the Constitution, the laws or the public policy of the State of Missouri, but such information affirmatively shows that respondent has exercised only such powers as it might lawfully exercise under the laws of this State.
“The information shows on its face that respondent has not been guilty of any abuse, misuse or perversion of its franchises granted to it by the State of Missouri, or of any illegal or unlawful usurpations .of privileges, franchises and powers granted it.”

It will be observed that-the alleged wrongful acts of respondents are charged to-be “in. violation of the laws and Constitution of Missouri ;”• but the learned ■Attorney-General contends that if the information states a cause of action against the respondents under either the Constitution, statutes or.- common law in force in this State, the demurrers must be overruled.

In this contention he is correct. A petition to recover a statutory penalty, though insufficient under the statute which the pleader seeks to invoke, may still be sufficient to authorize a recovery at common law. [Tackett v. Huesman, 19 Mo. 525; Mishler Lumber Co. v. Craig, 112 Mo. App. 454.]

The Attorney-General asserts that the alleged wrongful acts of the respondents are prohibited by section 17, article 12, Constitution of Missouri, as follows:

“No railroad or- other corporation, or the lessees, purchasers or managers of any. railroad corporation, shall consolidate the stock, property or franchises of such corporation with, or lease or purchase the works or franchises of, or in any way control, any railroad corporation owning or having under its control a parallel or competing line;.nor shall any officer of such railroad corporation act as an officer of any other railroad corporation owning or having the control of a parallel or competing line. The question whether railroads are parallel or competing-lines shall, when demanded, be decided by a.jury, as in other civil issues.”

In his brief the Attorney-General further contends that his information herein states a cause of action ag’ainst respondents under sections 10298 and 10301, Revised Statutes 1909, prohibiting persons and corporations from “creating or entering into combinations in restraint of trade or competition in the importation or transportation of any product or commodity in this State or any article or thing bought or sold whatsoever,” and declaring all such combinations ■criminal conspiracies in restraint of trade. He further asserts that his information states a cause of action against respondents under section 3081, Revised Statutes 1909, which reads as follows:

“It shall be unlawful for any railroad company, corporation or individual owning, operating or managing any railroad in the State of Missouri, to enter .into any contract, combination or association, or by any manner of means whatever consolidate the stock, property or franchises of such company, corporation or individual, or to lease or purchase the works or franchises of, or in any way whatever, to any degree exercise control over, any railroad company, corporation or individual owning or having under Ms or their control or management a parallel or competing line in this State, but each and every such railroad, whether owned, operated or managed by a company, corporation or individual, shall be run, operated and managed separately by its own officers and agents, and be dependent for its support on its own earnings from its local and through business in connection with other roads, and the facilities and accommodations it shall afford the public for travel and transportation under fair and open competition.”

For violating, the section last above quoted, the .law (Sec. 3085, R. S. 1909) prescribes a penalty of from $1000 to $5000 for the first offense; for the second offense, $5000 to $10,000, and for conviction of the third offense, a forfeiture of franchise. So that as the State prays a forfeiture of franchises in this action and does not charge a former offense or a former conviction, it would appear that the information was not based on said section 3081, Revised Statutes 1909.

However, as the prayer of the information may be disregarded in determining whether it states a cause of action [Smith v. Sims, 77 Mo. l. c. 275), if a cause of action is stated under any of the laws above noted, or under the common law, the information is good against the demurrers interposed by respondents.

Since the well considered decision of this court in the case of State ex rel. v. Grimm, 220 Mo. 483, it has become the settled law of Missouri that in proceedings in. the nature of quo warranto to revoke the franchise, of a corporation duly chartered or licensed to transact business in this State, the pleadings shall conform to our general Code of Civil Procedure.

In the Grimm case, supra, this court, in Banc, speaking through Gantt, J., said: “The decisions of this court have recognized the right of a defendant or respondent to demur to the information in the nature of quo warranto, and this doctrine is the prevalent one in other States, and is approved by the text-writers on the ground that it brings the pleadings and practice in these quo warranto cases in harmony with the practice in other civil cases. . . . Whenever the information in quo warranto avers that the- respondent has a corporate existence and the evident purpose of the proceedings is to have its charter forfeited for non-user, misuser or usurpation of powers, then the pleader must plead specifically the acts of the non-user, the acts of misuser or of usurpation relied upon for grounds of forfeiture, so that the corporation may know what it is called upon to meet and defend.”

Our Code of Civil Procedure simply requires that all petitions shall contain “a plain and concise statement of the facts constituting a cause of action.” [Sec. 1794, R. S. 1909.]

In addition to these general rules, we have the following section which throws some additional light upon what is required in a pleading of the character now under consideration:

“In any suit that is now pending, or which may hereafter be brought, in which it is charged that any person, corporation, partnership or association of persons has created, entered into, become a member of or participated in any pool, trust, agreement, combination, confederation or understanding in restraint of trade or competition with any other person, corporation, partnership or association of persons, it shall not be necessary to allege or plead the manner in which, or when or where such pool, trust, agreement, combination, confederation or understanding was made or effected.” [Sec. 10310, R. S. 1909.]

Under the foregoing rules, is the information filed by our Attorney-G-eneral sufficient to state a misuser, abuse or perversion of corporate powers by respondents? Upon diligent consideration of the facts stated in the information, we find that it is not.

It charg’es the creation and entering into by respondents of an agreement for the purpose of lessening and destroying free competition in the transportation of passengers, freight, etc.; that by said agreement respondents have fixed and regulated the rates for the transportation of both passengers and freight; but the information nowhere purports to designate any of the rates agreed upon by respondents, and alleged to have been fixed or maintained, or the length of time which said rates, if fixed, shall continue. The information also wholly fails to set out or describe the substance of the alleged wrongful agreement entered into between respondents. [Sidway v. Live Stock Company, 163 Mo. 342; Shohoney v. Railroad, 223 Mo. 649; Lackawanna Coal and Iron Co. v. Long. 231 Mo. 605; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388.]

In. Shohoney v. Railroad, supra, Valliant, C. J., in construing the law of pleading, l. c. 671, said: “It is the duty of a plaintiff to state his case with such clearness and definiteness that his adversary may know exactly what the complaint against him is. Our statute, says the petition must contain ‘a plain and concise statement of the facts constituting a cause of ac.tion, .without unnecessary repetition’ [Sec. 592, R. S. 1899; Ann. Stat. 1906, p. 612.] That duty devolves the plaintiff, and it is one that appeals to our,sense of justice and fair play. There are no words in the Code of Civil Procedure more significant of the spirit which actuated its.authors than the words just quoted. The requirement is that the facts be stated, not mere conclusions of law.”

The allegation by the Attorney-G-eneral that the agreement or combination entered into by respondents is an illegal usurpation and an abuse and perversion' l of corporate power, is merely a conclusion or presumption of law on the part of the pleader, and. not being predicated upon facts set forth in the informa- ■ tion, does not supply the lack of such definite facts . as should have been specifically pleaded. [Schiffman v. Schmidt, 154 Mo. 204; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388; Gribson v. Railroad, 225 Mo. 478; Lackawanna Coal & Iron Co. v. Long, 231 Mo. 605.]

If the law prohibited ev.ery kind of contract or traffic arrangements between respondents concerning . the carrying of passengers or transportation . of ■freight, then the information would be sufficient to charge a conspiracy in restraint of trade; but as a . matter of fact the respondents may enter in .many .-kinds, of contracts, with each other without violating any statute, the common law or public policy of this State.

Our laws fully recognize the power and right of railroad companies to contract with each other concerning the transportation of passengers and freight.. By •sections 3083 and 3084, Revised Statutes 1909', it is made the duty of the officers of said companies to furnish the railroad and warehouse commissioners. true copies of all contracts made by them with other railroad companies; and under those sections the railroad and warehouse commissioners are required to deliver those copies to the Attorney-General, who, upon inspection thereof may, if he finds that they contravene the law, proceed against such companies for the penalties prescribed in section 3085, Revised Statutes 1909.

The Attorney-General is not confined to the information which he may receive under the provisions of said sections 3083 and 3084, Revised Statutes 1909, but may proceed against any transportation company on information obtained from any other source.

Article 4, chapter 98, Revised Statutes 1909, empowers the Attorney-General to take testimony without bringing suit to ascertain whether any corporation in this State has exceeded or perverted its corporate powers or entered into any kind of trust or other illegal combination.

With these facilities at hand, there is no call for the Attorney-General to inform against any corporation until he is possessed of the necessary information to prefer a correct and specific charge.

By section 1831, Revised Statutes 1909, we are required to construe the laws of pleading liberally so as to promote the substantial justice between the parties; but we do not think the ends of justice will be.promoted by permitting the State or any other litigant to call a defendant into court to answer for alleged wrongdoing without specifically, charging and informing him of the matters and things against which he must defend.

Informations charging conspiracies, frauds and similar offenses always call for a wide range of evidence, and in that class of cases courts should for their own protection compel litigants to present the issues upon which they rely in a clear, definite and concise manner, to the end that the courts may not be overwhelmed with irrelevant testimony. [20 Cyc., p. 97.]

In the instant case, no doubt a large number of contracts exist and are in force between respondents affecting and regulating the transportation of freight and passengers; and if we were to appoint a commissioner to take testimony under the information as filed, it would necessitate the investigation of all contracts which the sixteen respondents have entered into between themselves, and the taking of testimony concerning all such contracts as the Attorney-General may believe contravene the laws regarding trusts and conspiracies. Such an undertaking would probably consume years of time; and the redress which the State is entitled to if the respondents have violated the law, would thereby be delayed indefinitely.

We have examined all the cases cited by the learned Attorney-General in support of the sufficiency of his information. He cites the language used by this court in the case of State ex inf. v. Standard Oil Company, 218 Mo. l. c. 364, wherein we said: “It is also contended by counsel fof respondents that the allegations of the information of the existence of the combination complained of are not sufficient to constitute a cause of action against them. If we correctly understand counsel, their contention is that the information in this case should be drawn with the same rules of strictness which are applicable to criminal indictments and informations. In other words, they contend that the information should state the facts which constitute the pool, trust or combination, and not make the charge in general terms. It is the formation of and entering into the pool, trust or combination that constitutes the usurpation of corporate powers; and in such eases, according to the text-writers and adjudications, all that is necessary to be stated in the information is a general allegation of the facts constituting the misuser, non-user, or usurpation.”

Upon examining the information in the Standard Oil case, supra, we find that it contains allegations specifically reciting the substance of a contract between the Standard Oil and two other companies whereby they conspired to monopolize the business of selling oils in Missouri by dividing the territory between two- of the conspirators so as to prevent competition, and by acting through a third party which pretended to be independent of the other two, but which in fact was working with them,, to destroy the trade of all competitors in the sale of oils.

The language used in the Standard Oil case, supra, might upon first impression convey' the idea that an information of this nature need not point out any of the terms of the alleged illegal contract or combination; but what was there said applied to the facts in that case, and furnishes no ground for upholding, an insufficient information in this case.

It is a well-settled rule of law that the reasons or discussions of an appellate court in deciding a case are not precedents in other cases in which a different state of facts is at issue. [Koerner v. St. Louis Car Co., 209 Mo. 141.]

The case of State v. Dreany, 65 Kan. 292, 69 Pac. 182, is not in point here, because in that case the information recited the terms of the unlawful contract or combination, to-wit, a division of the net earnings between the conspirators.

Neither is the case of State v. Straw, 42 N. H. 393, in any wise like the one at bar, for in the Straw case, the information pointed out the unlawful acts which the conspirators agreed to perform, to-wit, “to put up and maintain flash boards on a dam,” so as to cause the overflow of complainant’s lands.

The case of United States v. Gardner, 42 Fed. 829, is not in point, because there the alleged conspiracy was to commit a theft, which was a crime malum in se, and not a crime malum prohibitum, as in the case at bar.

The same is true of the case of Hazen v. Commonwealth, 23 Penn. 355, cited and relied on by the State.

The State also cites the case of State ex inf. v. Missouri Pacific Railway Company, 206 Mo. 40, wherein the doctrine was announced that in actions in the nature of quo warranto the pleadings are not governed by our general Code of Civil Procedure; but that doctrine is expressly repudiated in the more recent, case of State ex rel. v. Grimm, 220 Mo. 483, l. c. 493 and 494. We think the Grimm case is fully sustained by authority and sound reason. It was concurred in by all the judges who participated in the opinion found at 206 Mo. 40, except the chief justice_, who was then absent; and the Grimm case should be allowed to stand as the law of this State.

The case of Eel River Railroad Company v. State, 155 Ind. 433, likewise fails to support the contention of the State, for there the particular act of non-user, to-wit, the execution of a ninety-nine year lease with the right of perpetual renewal, was expressly charged in the information. [155 Ind. 1. c. 457.]

The case of Chicago, Wilmington and Vermilion Coal Company v. The People, 214 Ill. 421, appears on its face to fully and directly support the sufficiency of the information now under consideration. In that case the charge of conspiracy was couched in the same general terms as in the ease at bar, with no effort to set out the substance or particulars of the unlawful combination. However, the pleading in that case was an indictment by a grand jury for violating a criminal statute of Illinois, and the laws of that State then in force, Revised Statutes of Illinois 1908, page 783. contained the following provisions:

“Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense.”

It will thus be seen that the sufficiency of the indictment in the case last cited was measured by an entirely different rule of law than the one which governs pleadings in quo ivarranto in this State.

Rules of pleading announced by the appellate courts of other States are not a safe guide for measuring the sufficiency of pleadings in this State, for the obvious reason that every State has its own code which may be wholly unlike our own.

Prom what has been said it follows that the demurrers interposed by respondents to the information of the Attorney General in this case, must be sustained. It is so ordered.

Valliant, G. J., and Ferriss, Graves and Lamm, JJ., concur; Kennish, J., concurs in result only; Woodson, J., in separate opinion also concurs in result.

CONCURRING OPINION.

WOODSON, J.

I concur in the result reached in the .majority opinion delivered herein, but not for the reasons therein stated.

Strictly speaking, in passing upon a demurrer to an information or indictment charging a conspiracy, the court should look solely to the information; or indictment, as the case might be, and the demurrer thereto; but where, as here, the entire argument, and I might add, where counsel for all the parties practically admit in open court, that the real crime committed and intended to be charged in the information was not a conspiracy to do an unlawful thing, as charged by the letter of the information, but the intention was to charge an unlawful conspiracy to do a lawful thing, then it would be idle to treat the information as though it charged a conspiracy to do an unlawful thing, whereas the fact is, as above stated, the intention was to charge an unlawful conspiracy to do a lawful thing. Consequently I am going to treat the information in the sense that it charges an unlawful conspiracy to do a lawful thing, to-wit: That the respondents entered into and formed an unlawful conspiracy to fix certain rates for the transportation of passengers in this State, not to exceed three cents per mile, which under the statutes of this State, as held by the Federal courts, are lawful rates.

In the light of these preliminary observations, I concur only, as previously stated, in the result reached by the majority opinion, but not for the reason therein assigned, namely, that an information charging a conspiracy to do an unlawful thing, in order to be good, must set forth the terms or means by which the unlawful end is to be accomplished.

In my opinion good pleading only requires that such a conspiracy should be charged in general terms. The authorities seem to be uniform in holding that when a conspiracy is formed and entered into by two or more parties, for the purpose of doing an unlawful thing, then it is unnecessary to set out in the information or indictment the terms of the conspiracy, or the means employed by which the end is to be accomplished. But if the end in view is a lawful purpose, and the conspiracy only becomes criminal by reason of the unlawful means whereby it is to be accomplished, then it becomes necessary to show such criminality by setting out such unlawful means-. [State ex rel. v. Standard Oil Co., 218 Mo. l. c. 367, and cases cited.]

In the case at bar, the conspiracy entered into by and between the respondents was to do a lawful thing, by unlawful means, namely, to fix passenger rates not in excess of those authorized to be charged by the laws of the State.

If each and all of the respondents were authorized by law to charge as high or higher rates than those fixed by the conspiracy, then clearly those rates are legal; but the crime involved in the conspiracy consists, not of the rates fixed, but in the unlawful agreement by which those lawful rates were fixed and agreed to.

That argument destroyed competition between the common carriers of the State, and prevents one company from charging a lesser rate for the saíne service than another might be willing to charge, were it not for the existence of such agreement.

Clearly the traveling public is entitled to that competition, and the companies have no right to deprive it of that right by any kind of an agreement among themselves. It is true, that each and all of them could lawfully, for itself, fix rates at three cents a mile, and no one would have any right to complain, but they cannot lawfully do so collectively.

Under those facts, according to the rules of pleadings previously stated, the terms of the unlawful agreement fixing lawful rates by means of the unlawful conspiracy should have been charged in the information.

My learned associate who wrote the majority opinion in this case misconceives the facts of the Standard Oil case, supra, and for that reason errs in his conclusion as to the ruling there made. There the respondents were charged in the information with entering into a conspiracy to do a number of unlawful things and not, as here, to do a lawful thing by unlawful means.

According to the rule before announced, and according to the ruling in the Standard Oil case, it was not necessary in that case to set out the terms or character of the conspiracy, but in the case at bar the nature and terms of the conspiracy should be stated.