text:
    Davis, Respondent, v. Slagle, Appellant.
    1. A petition, in an action for breach of promise of marriage, alleging that about a certain specified date, “ the defendant — in consideration that the plaintiff, then being sole and unmarried, at the request of the defendant, faithfully promised to marry the defendant — did then and there undertake and faithfully promise to marry the plaintiff; that, confiding in the said promise and undertaking of said defendant, plaintiff has remained and continued and still is sole and unmarried, and has always been and still is ready and willing to marry the defendant; that though a reasonable time has elapsed since said promise and undertaking for the defendant to marry plaintiff; and although requested so to do, he has wholly neglected and refused, and still does neglect and refuse,” &e., is good after verdict on motion in arrest of judgment.
    2. Where a defendant, in an action for breach, of promise of marriage, attempts in his answer to justify his noncompliance with his contract by charging that the character of the plaintiff for virtue is bad, the fact that this imputation is unwarrantably made is a circumstance that aggravates the damages,- and the jury may take the same into consideration in estimating the damages.

      Appeal from Livingston Circuit Court.

    The following are the instructions referred to in the opinion of the court: “1. That if the jury believe from the evi-. dence that plaintiff and defendant contracted to marry each other and that defendant failed and refused to marry plaintiff, they must find for the plaintiff. 2. That the pleadings in this case admit that defendant refused and failed to marry plaintiff. 8. That in this case if the jury believe there was a contract between plaintiff and defendant to intermarry, they must find for plaintiff. 5. That in assessing the damages the jury are not limited to the mere pecuniary damage which the plaintiff may have sustained, but may take into consideration the injury to her feelings, character and reputation, and may in this case find for the plaintiff such amount, not exceeding five thousand dollars, as they may believe from the facts and circumstances the case requires.”

      Harris, for appellant.
    I. The petition does not state facts sufficient to constitute a cause of action. An offer to perform the contract must be averred. That plaintiff was ready and willing and requested defendant to marry her, is not sufficient. (2 Bibb, 341; 13 B. Mon. 465 ; 2 Saund. on Plead. & Ev. 348; Green v. Spencer, 3 Mo.-.) The failure to aver and offer by plaintiff and an appointment of time and place is not cured by the. verdict, but may be taken advantage of by motion in arrest, or an error or appeal. (Eible v. Caplinger, 13 B. Mon. 485; Mooney v. Kennett, 19 Mo. -; 7 Barb. 581; 19 Barb. 186; 8 Seld. 464; 4 How. 155.) The first, second and third instructions are erroneous. The fifth instruction is erroneous. Injury to character is not a subject of damages in an action'; for breach of promise of marriage. Character is not involved in such an action. (Leckey v. Blosey, 24 Penn. 401.) If such damages can be recovered under any circumstances, it could only be when they are specially charged in the petition. (Bedell v. Powell, 13 Barr, 183.)

      Davis, for respondent.
    I. The character of the plaintiff was directly in issue on the trial. The instructions to take into consideration her character and reputation were properly given. (1 Greenl. Ev. § 54; 1 Cow. & Hill’s notes, 456 ; Chitty on Contr. 475 ; 6 Cow. 254; 13 Mo. 16.)
   Richardson, Judge,

delivered the opinion of the court.

This was an action to recover damages for a breach of promise of marriage. The petition averred that about the 15th December, 1857, “ the defendant, in consideration that the plaintiff, then being sole and unmarried, at the request of the defendant, faithfully promised to marry the defendant, did then and there undertake and faithfully promise to marry the plaintiff; that, confiding in the said promise and undertaking of said defendant, plaintiff has remained and continued and still is sole and unmarried, and has always been and still is ready and willing to marry the defendant; that, though a reasonable time has elapsed since said promise and undertaking for the defendant to marry plaintiff, and although requested so to do, he has wholly neglected and refused and still does neglect and refuse,” &c. There was no demurrer, and the first question arises as to the sufficiency of the petition on the motion in arrest of judgment.

It is objected that the petition is fatally defective in omitting the averment of a special request or an offer by the plaintiff to perform the contract on her part. It is a general rule that in contracts requiring mutual and concurrent acts to be performed at the same time, neither party can maintain an action against the other without showing that he has performed or offered to perform his part of the agreement; but in actions of this kind a declaration like the one in this case has been held after verdict to be good. In Seymour v. Gartside, 2 Dow. & Ry. 55, the declaration was substantially like this petition, which averred that plaintiff, confiding in the promise, had always remained unmarried, and was still ready and willing to marry the defendant; and that although a reasonable time for the defendant to marry the plaintiff had elapsed, yet the defendant, not regarding his promise, did not nor would within such reasonable time marry the plaintiff, but had hitherto wholly neglected and refused so to do.” It was held by the court of king’s bench that the declaration after verdict was sufficient, without averring that the defendant had any notice of the plaintiff’s readiness, or averring any request made to the defendant to marry the plaintiff, or any averment of a special refusal. (2 Saund. Pl. & Ev. 347.)

There was no error in giving the first, second and third instructions, because it was admitted in the answer that the defendant had refused to marry the plaintiff, and the allegation in the petition that a reasonable time had elapsed for the defendant to marry the plaintiff was not denied in the answer.

The defendant attempted in his answer to excuse his abandonment of the plaintiff by stating on the record that her character for virtue was bad. The plaintiff was allowed without objection to repel by proof this assault on her reputation, and as the defendant entirely failed'to show any thing against it, the imputation on her virtue, deliberately made and sworn to, was a circumstance that aggravated the damages. (Southard v. Rexford, 6 Cow. 254.) A nominal verdict would have endorsed the slander and ruined her reputation, and the jury under the circumstances of this case were properly told in the fifth instruction to take into consideration, in estimating the damages, the injury to the plaintiff’s character. With the concurrence of Judge Scott, the judgment will be affirmed.

Judge Napton absent.


source: Caselaw Access Project

author: ROY, C. PER CURIAM:

license: Public Domain

text:
    JOHN ARTHUR FLOURNOY et al., Appellants, v. JOSEPHINE KIRKMAN et al.
    Division Two,
    February 2, 1917.
    PARTITION: Subject to Life Estate: Agreement Not to Divide. Where three daughters to whom a mother conveyed land subject to a life estate reserved for herself, at her request, entered into a written agreement not to “ask for a division or partition,” the agreement “to continue in force and be binding on each party hereto while they live,” the heirs of one of the daughters who has died are , entitled to have partition, subject to the life estate of the mother. The agreement should not, without good reason, be construed to bind the survivors to continue the cotenancy with the heirs of the . deceased.
    Appeal from Buchanan Circuit Court. — Eon. Wm. D. Rusk, Judge.
    Reversed and remanded.

      Randolph & Randolph and W. B. Norris for appellants.
    (1) The writing in question, if otherwise valid, would be an unreasonable restraint upon the alienation as well as the enjoyment of the property. Hauessler y. Iron Co., 110 Mo. 188. It is an unreasonable restraint on alienation because purchasers are less liable to purchase an undivided interest in a' tract' of land than they are to purchase the entire interest in even a smaller tract. It is a restraint upon enjoyment because unfriendly co-tenants never get the best results out of their common property. (2) The writing in question is not a covenant running with the land. It can under no construction be anything more than a personal and. collateral covenant. Sturgeon v. Schaumbury, 40 Mo. 486.

      O. D. McDaniel for respondents.
   ROY, C.

— This is a suit to partition 216J7 acres of land near St. Joseph. There was a finding and judgment for the defendants, and the plaintiffs have appealed.

On August 25, 1902, Martha A. Gann, one of the defendants, owned the land in fee simple. On that day, by a general warranty deed in which she reserved to herself a life estate in the land, she conveyed the remainder subject to such life estate to her three daughters, Josephine Gann, Victoria Crumpley and Julia M. Flournoy, then the wife of the plaintiff John A. Flournoy.

At the time of the execution of that deed the three daughters and John A. Flournoy entered into a mutual contract in writing, which, except the signatures, is as follows:

“Ve, Josephine Gann and Victoria Crumpley and Julia Flournoy and John A. Flournoy hereby agree on the request of Martha A. Gann that they will not ask for a division or partition of the lands deeded to Josephine Gann and Victoria Crumpley and Julia Flournoy by Martha A. Gann on August 25,1902, it being the old home place at Matney Station. And this • agreement is to continue in force and to be binding on each party hereto while they live, but any party has the right to go and live in the rooms reserved in the old homestead at Matney Station. This agreement is made and signed as being the will of Martha A. Gann and each undersigned herein binds themselves to live up to it. But each party is to receive an equal part of all rents collected and pay an equal part of all expenses incurred and improvements made and the girls herein are to pay an equal part of Martha A. Gann’s funeral expenses.”

Julia M. Flourney died October 6, 1906, leaving three children born of her marriage with John A. Flournev, viz., Martha V., Midia Josephine, and Samuel G. The last named died on June 8,1910, without having been married. Midia J. was born August 22, 1898, and was a minor at the institution -of this suit.

After the death of his first wife John A. Flournoy married her sister, Victoria Crumpley. Josephine Gann married one Kirkman. The- petition makes Mrs. Kirk-man and Mrs. Gann defendants. All the other parties in interest are made plaintiffs. The interests of the various parties are correctly stated, it being alleged that Mrs. Gann owns a life estate in the land, that defendant Mrs. Kirkman and plaintiff Mrs. Flournoy each own a third subject to such life estate, and that the other plaintiffs own a third subject to said life estate, their respective several interests in that third being stated in the petition.

There is a prayer for partition in' kind without requesting that it he made subject to the life estate of Mrs. Gann.

The answer admits that the intérests of the parties are correctly stated in the petition. It then alleged the making of said contract, and pleads that the plaintiffs are thereby estopped to have partition.

The reply denies that there is such an estoppel.

In Haeussler v. Missouri Iron Co., 110 Mo. 188, this court cited the following from the civil law: “It is always free for every one of those who have anything in common among them to divide it; and, although they may agree to put off the partition to a certain time, yet they can make no such agreement as never to come to a partition. For it would he contrary to good manners that the proprietors be forced to have always an occasion of falling out, by reason of the undivided possession of a common thing. ’ ’

It was also said in that cas.e: “The right of partition is an absolute right which yields to no consideration of hardship or inconvenience. [Freeman on Cotenancy &. Partition, sec. 443.] Anything that militates against this right is repugnant to the essential characteristics of cotenancy. [Mitchell v. Starbuck, 10 Mass. 11.] And the tendency of our times is to greater freedom of sale and transfer of property unfettered by conditions or limitation of the right of alienation.”

The contract read in evidence assumed that the daughters would all survive the mother. The provisions that they shall share equally in the rents, and that any party can live in the rooms of the old homestead, clearly refer to the time after their mother’s death, for the mother alone is entitled to the possession and rents during her life. That contract provides that the girls are to.pay an equal part of the mother’s funeral expenses. It says: “And this agreement is to continue in force, and to be binding on each party hereto while they live.” We look in vain for any indication in that contract of an intention that it shall bind .the interests of the parties after their respective deaths.

The authorities above cited show that it is not the policy of the law to keep uncongenial eotenants yoked together. It may very well be that three sisters, cotenants, may bind themselves not to partition while they all live. It may be that they can agree that there shall be no partition while any one of them lives. We are not now deciding those points. We simply hold that' where the cotenants agree, as here, to take each other “for better, for worse” as cotenants, that agreement should not, without good reason therefor, be construed to go further and bind the survivors to continue such relation with the heirs of the deceased, and we hold that no such good reason exists in this case.

We feel constrained to say that there does not appear any reason why the defendant Martha A. Gann should be made a party defendant herein; She is not a cotenant with the other parties. They are permitted to make partition, but it must be subject to her life estate. [Hayes v. McReynolds, 144 Mo. 348.]

The judgment is reversed and the cause remanded.

White, C., not sitting.

PER CURIAM:

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

All of the judges concur.


author: WILLIAMS, J.

text:
    EDWIN S. MARSTON, Appellant, v. JOHN M. CATTERLIN et al; JOSEPH HODNETT, Appellant.
    Division Two,
    February 2, 1917.
    1. PRAYER AND RELIEF: Land on an Accounting. A supplemental bill whereby plaintiff seeks to have vested in him the title of certain land, which has been conveyed since suit was begun, and in which he prays that, if the court should find that the present record owner is a purchaser in good faith and for value, so that the plaintiff shall have no right of redemption against him, the original defendant shall be decreed to account for and pay over to plaintiff the proceeds of the property so conveyed by , him since the filing of the original petition, is sufficient to entitle plaintiff to an accounting for the proceeds in the event the court • could not, give him the land.
    2. OUTSTANDNG EQUITIES: Notice: Payment of Existing Mortgages. The .payment in full by the subsequent grantee of existing mortgages held by his grantor is convincing proof that the grantee did not have actual notice of a prior outstanding claim in favor of plaintiff brought about by said grantor;
    3. -: Constructive Notice: Special Warranty Deed. A purchaser by general warranty, in whose chain of title is a remote recorded deed which in effect is nothing more than a quit-claim with a special warranty covenanting against any one who might claim under the grantor therein, is not thereby, being without actual notice, chargeable with constructive knowledge of outstanding equities existing at the time the special warranty was made.
    4. -: -: -: Grantee Under Quit-Claim. A subsequent grantee in a general warranty deed is not prevented from occupying the position of a bona-fide purchaser, without notice, merely because some prior conveyance in his chain of title is a quit-claim or special warranty deed. In such case the general rule applicable to the grantee in a quit-claim deed, should not be applied to a grantee in a subsequent warranty deed. [Distinguishing Mason v. Black, 87 Mo. 329, and Freeman v. Moffitt, 119 Mo. 280.]
    Appeal from Bates Circuit Court. — Eon. G. A. Calvird, Judge.
    Reversed and remanded (with directions.)

      Thomas J. Smith, Bowersock, Hall & Hook and Robert B. Fizzell for appellant Marston.
    (1) When, the defendant Catterlin acquired the Bates County land by purchase under the foreclosure of the Kerns deed of trust, he became a constructive trustee thereof and held the property for the plaintiff. Marston v. Catterlin, 239 Mo. 390; Eoff v. Irvine, 108 Mo. 383; Cameron v. Lewis, 56 Miss. 82; Winn v. Dillon, 27 Miss. 496; Olson v. Lamb, 56 Neb. 104; Galbraith v. Elder, 8 Watts (Pa.), 81; Henry v. Baiman, 25 Pa. St., 354; Smith v. Brotherline, 62 Pa. St. 461; Ainsworth v. Harding, 22 Idaho, 645; Davis v. Smith, 43 Vt. 269; 39 Cyc. 172. (2) When the defendant Catterlin disposed of the Bates County land, he became liable to account to the plaintiff for all of the proceeds of the transaction received by him. 4 Sedgwick on Damages (9 Ed.), sec. 1256k; Perry on Trusts and Trustees (6 Ed.), secs. 429, 430, 844; Pettit v. Carpenter, 86 Mo. App.- 452; Whittle v. Vanderbilt M. & M. Co., 83 Fed. 48; Linnell v. Lyford, 72 Me. 280; Cheshire v. Cheshire, 37 N. C. 569. There is no distinction between express and constructive trustees in this regard. Cheshire v. Cheshire, 37 N. C. 569; Clapp v. Vatcker, 9 Cal. App. 462; Pettit v. Carpenter, 86 Mo. App. 452. (3) The right of the plaintiff to compel the defendant Catterlin to account' for the proceeds of his sale of the Bates- County land does not depend upon whether or not the defendant Hodnett purchased the land with notice of the present litigation. The plaintiff may elect to hold the defendant Catterlin to account. Oliver v. Pratt, 3 How. (U. S.) 401; Parker v. Straat, 39 Mo. App. 626. (4) No notice of Us pendens having been filed before the defendant Hodnett purchased the Bates County land from the record owner, Hodnett did not have constructive notice of this litigation. Sec. 8211, B. S. 1909; Steele v. Bobertson, 75 Ark. 228; Pennington v. Martin, 146 Ind. 635; Trapp v. Bailey, 152 Ky. 369; Perkins v. Ogilvie, 140 Ky. 412; White v. Manning, 26 Ky. L. Bep. 887; St. By. Co. v. Detroit, 124 Mich. 449; McKenzie v. Fellows, 97 Miss. 31; Gilman v. Carpenter, 22 S. D. 23; Easley v. Barksdale, 75 Va. 274; DeCamp v. Carnahan, 26 W. Ya. 839; Smith v. Gale, 144 IT. S. 509; Glass v. Stark, 156 Wis. 21.

      C. A. Denton for appellant Hodnett,
    (1) The record title that defendant Hodnett purchased under was a complete chain, each link of which was in effect a warranty deed. The deed from Catterlin to Lyons dated September 3, Í904, and recorded the same day, as shown by the record, contained in the granting clause the words “ grant, bargain and sell, convey and confirm.” There were no words in the habendum clause specifically limiting the said words in the granting clause. Therefore it was a warranty deed and imparted no notice of any equitable defects not of record, that might be against the title to the land involved in this suit. Sec, 2793, R. S. 1909; Tracy v. Greffett, 54 Mo. App. 564; Alexander v. Schreiber, 10 Mo. 460; Collider v. Gambles, 10 Mo. 471; Miller y: Bayless, 101 Mo. App. 487, 194 Mo. 630. (2) Defendant Hodnett had a right to rely upon the covenants of general warranty in the deed from Catterlin to Lyons, as 'shown by the record in the office of the Recorder of Deeds. Therefore, although the words “grant, bargain and sell, convey and confirm” in the said deed as copied were not in the original deed, having been by mistake so copied on the records, Hodnett had the right to rely upon the records regardless of whether it was a true copy of the original. Terrell v. Andrew County, 44 Mo. 312; White v. Lumber Co., 240 Mo. 13; Ritchie v. Griffith, 12 L. R. A. 384, 22 Am. St. 155; Troyer v. Wood, 96 Mo. 478. (3)- The only equitable rights that existed in favor of the plaintiff as found by this court when this case was here before that estopped Catterlin from holding the title to the land in question arose out of Catterlin’s acts. In the so called special warranty deed of Catterlin to Lyons, even though it should be held that defendant Hodnett took his title under the conditions of the said deed-regardless of the copy as recorded, Catterlin covenanted and warranted against his acts, as will be noted on an examination of the habendum clause. Duffy v. Sharp, 73 Mo. App. 316; 11 Cyc. 1070; Oak Dale v. Fagen, 63 N. W. 456; Jenks v. Ward, 45 Mass. 404; Mitchell v. Warner, 5 Conn. 527.

      Silvers & Silvers for respondent.
    (1) Plaintiff Marston sued for the land; and cannot recover its value, or the proceeds thereof. 15 Cyc. 262; McMurray v. St. Louis, 138 Mo. 618; Nanson v. Jacob, 93 Mo. 346; Donnelly v. Trust Co., 339 Mo. 370; Hector v. Mann, 225 Mo. 248. (2) Where, as in this case, plaintiff could elect as to remedies, and sue either, (a) for the land, (b) for its value, or (c) for the proceeds arising from its sale, he is bound by his election when he sued for the land itself. Nanson v. Jacobs, 93 Mo. 346. (3) Plaintiff having sued for the land and recovered judgment therefor, has no just cause for appeal. He Only asked for the value of the land, in case the court found that it has been placed beyond his reach. (4) Hodnett is in privity with Catterlin as to the land in controversy, claiming through him, and is bound by the judgment of this court which fixed Catterlin’s interest in this land. Cooley v. Warren, 53 Mo. 169; Perkins v. G-oddin, 11 Mo. App. 443; Henry, v. Woods, 77 Mo. 277; Carthage v. Wesner, 116 Mo. App. 121; Mason v. Summers, 124 Mo. App. 174; Litchfield v. Goodnow, 123 U. S. 549; 24 Am. & Eng. Ency. Law, p. 746; Greenleaf, Ev., 523. (5) Catterlin having only a part interest in the land in controversy, he could convey only what he had, and Hodnett could and did get through mesne conveyances from Catterlin only this part interest: Ridgeway v. Holliday, 59 Mo. 455; Bogy v. Shoab, 13 Mo. 380; Craig, v. Zimmerman, 87 Mo. 475. (6) The deed from Catterlin'to Lyons, was a special warranty, and equivalent to a quitclaim deed only. Mann v. Best,\ 62 Mo. 497; Oliver v. Pyatt, 3 How. 333; Brown v. Jackson, 3-How. 449; Freeman v. Moffitt, 119 Mo. 306. (7) Hodnett is charged with notice of everything recited in the deeds in his chain of title. Freeman v. Moffitt, 119 Mo. 280. (8) Hodnett who claims under or through quit claim deeds held his interest subject to the equities in favor of Marston, Marston’s equities in the land not being subject to registration under our law pertaining to the registration of conveyances. Hendrick v. Calloway, 211 Mo. 563. (9) Hodnett having bought property in litigation at the time of his purchase, takes subject to the result of such litigation. 25 Cyc. 1450; Tice v. Hamilton, 188 Mo. 302; Carr v. Gates, 96 Mo. 274; Parker-Washington Co. v. Clinton, 155 Mo. App. 386. (10) There appeared also in the record of title a recitation that the trust deed given to the New England Loan & Trust Company was a first lien on the property. This was notice to Hodnett, and taken with the circumstance thal this $1950 trust deed had been foreclosed and the land sold to Marston was sufficient notice to Hodnett to put him on enquiry. Hodnett who traded for the-Catterlin interest, had an abstract disclosing to him the seven quitel aim deeds in his chain of title, and the special warranty deed shown on the abstract. This last deed was sufficient to put a reasonable man on guard. And more especially an attorney who knows the significance of such an instrument.
   WILLIAMS, J.

— This is a proceeding by a supplemental bill to have the title to certain land decreed to be in the plaintiff or, if the land should be found to be beyond the reach of the court, then to have the defendant Catterlin account to the plaintiff for the proceeds of the sale of said land. This is the second appeal in the case. The first appeal is reported in the 239th Missouri Eeport, at page 390. The opinion in that case should be read in connection with this opinion in order to have a correct understanding of the facts. Upon the first appeal, this court reversed the judgment of the trial court and held that the plaintiff should be vested with the title to the real estate in question. Defendant Hodnett was not a party to the original suit. Before final judgment was had upon the first trial, in the trial court, defendant Catterlin conveyed the land in suit, and when the mandate was returned to the trial court this supplemental bill was filed by plaintiff which brought in Joseph Hodnett as an additional defendant. Hodnett was the record owner of the land.

Trial was had in the circuit court of Bates County. The trial court denied plaintiff’s right to recover from Catterlin the proceeds of the sale of said land by him, but found that plaintiff was entitled to recover the land from defendant Hodnett, upon the payment to said Hodnett of the sum of $348.10. Prom this judgment both the plaintiff and defendant Hodnett duly perfected an appeal to this court.

The supplemental petition, after stating the facts embraced in the first appeal, alleges that after the filing of the original petition and on the third day of September, 1904, defendant Catterlin conveyed the land to Lyman Lyons and that on the same day said Lyons conveyed the premises to Ray Wolfe; that on November 18, 1904, said Wolfe conveyed said premis'es to Ralph Earhart; that on January 23,1906, said Earhart conveyed said premises to defendant Joseph Hodnett; that all of said conveyances were without consideration and did not represent bonafide transactions between the parties, and that the grantees purchased with full notice of the claim of plaintiff, as set up in his original petition in this action. The prayer of the petition asks that all of the said conveyances be canceled and that the title to said real estate be vested and quieted in the plaintiff. The following was also a part of the prayer; “That if upon final hearing of the cause, the court shall find that the defendant Hodnett is a purchaser in good faith and for value of said property so that the said plaintiff shall have no right of redemption against him, said defendant Catterlin shall be decreed to account for and pay over to the plaintiff the proceeds of the said property so conveyed by him since the filing off the original petition herein, in addition to the rents and profits from said property.” This was followed by a plea for general relief.

The separate answer of defendant Hodnett stated that he purchased the property in January, 1905, for a valuable consideration, from one Earhart, the record owner thereof. Said separate answer also contained a general denial of the allegations of the supplemental bill.

The separate answer of defendant Catterlin pleads the judgment of the Supreme Court on the former appeal in this case, wherein it was held that plaintiff was entitled to the land upon paying said Catterlin said redemption money. The separate answer further alleges that Catterlin has sold all his right, title and interest in said land and now has no further interest therein except certain deed of trust liens thereon given him by purchasers of the land. He prays that the .court ascertain the' amount of money which the plaintiff ought to pay under the former ruling of the Supreme Court and asks that he have judgment for that amount against the plaintiff.

The evidence tends to show that on September 3,1904, and while this suit was pending on the original petition, in the circuit court of Bates County, the defendant Catterlin conveyed the land in suit, by special warranty deed, to one Lyons. However, this deed from Catterlin to Lyons, as recorded by the Eecorder of Deeds, appears upon the records in the Eecorder’s office, in effect at least, as a general warranty deed! Thereafter, and on the same day, said Lyons executed a deed of trust on said land to secure a note for twelve hundred dollars, payable to said Catterlin, and, thereafter, and on the same day, by warranty deed, conveyed the property to one Wolfe. It appears that neither Lyons nor Wolfe paid anything for this proprty, but acted merely as accomodation holders of the title for said Catterlin. On November 18, 1904, said Wolfe, by warranty deed, conveyed the land to one Earhart, subject to this deed of trust' for twelve hundred dollars. On November 25, 1904, said Earhart executed a second deed of trust on said land to secure a note for $250, payable to said Catterlin. There was some evidence tending to show that the deal with-Earhart was between defendant Catterlin and Earhart and that in exchange for the land involved in this suit, which was then owned by Catterlin, Earhart, through mesne conveyances, conveyed to defendant Catterlin, three and one-half acres of land in Jackson County, Missouri, which was then subject to a deed of trust for $1670.' On January 23, 1905, said Earhart conveyed, by warranty'deed, the land involved in this suit to defendant Hodnett, who was then an attorney of Illinois and who had gone to Kansas City for the purpose of selling some oil stock then owned by him.; The trade between Hodnett and Earhart was negotiated by Mr. C. B. Ehodes, a real estate dealer of Kansas City. Defendant Hodnett gave one hundred dollars in cash and seven thousand shares of the Hudson Oil and Gras Company stock for the land. There is some evidence that the oil stock proved, afterwards, to he valueless. Defendant Hodnett testified that the oil stock was then worth about thirty cents a share and he considered that he was paying about four thousand dollars for the land involved in this suit. Defendant Hodnett admitted that he examined an abstract of title to this land. On the abstract sheet showing the deed from Catterlin to. Lyons the words “special warranty deed” were written. No other or further words describing or defining the deed were used in the abstract. It also appears from the evidence that defendant Hodnett, before he purchased the land from Earhart, talked with defendant Catterlin over a long-distance telephone line from Kansas City to Butler. The witnesses disagree as to what was said in this talk over the telephone. Defendant Catterlin testified that Hodnett asked him why he gave a special warranty deed, and that he replied that the land was in litigation and that the sale under the deed of trust was being questioned. Hodnett testified that he talked to Catterlin to inquire about the character of the land- and about the title in general and that Catterlin told him over the ’phone that the title was good. Defendant Hodnett testified that he had no infor-r mation concerning this litigation at the time that he bought the land. After buying the land he paid to defendant Catterlin the sum of $1920.80. This was the amount of the two mortgages against the property plus interest. This was not all paid at one time, but was paid at several different times until both mortgages were finally paid. It is admitted that no notice of Us pendens was ever filed in the cause until 1912, which'was long after these convey-' anees were made. Defendant Catterlin offered evidence showing that the present value of the land was between three and eight dollars an acre; and that the land was less valuable now than when this litigation was' first started, due to drainage conditions and overflows on the land.

Both appellant Marston and appellant Hodnett contend that Hodnett purchased the property in good faith and without notice of the outstanding equity of the plaintiff and that therefore the court erred in decreeing the titie out of Hodnett and vesting it in the plaintiff subject to the payment of the redemption money.

Appellant Marston further contends that the court erred in not permitting him to have an accounting against Catterlin for the proceeds received by Catterlin from the sale of the land.

Respondent contends (1) that plaintiff, had he so elected in the first instance, might have recovered against him for the preceeds, yet since he sued to recover the land if such relief were within the power of the court, he thereby elected to pursue that remedy and cannot now complain of the court’s action in granting him relief for which he prayed; (2) that Hodnett purchased the property charged with notice of the plaintiff’s equity in the land by reason of the fact that Catterlin conveyed the property by special warranty deed.

I. We are of the opinion that plaintiff’s supplemental petition is sufficient to entitle him to an accounting for the proceeds in the event it should be found that the court eon^ 8’ive him the land. If, on the other hand, the facts should be found sufficient to justify the court’s action in vesting the title to the land in plaintiff, then plaintiff should not be now heard to complain, because it would be the exact relief for which his petition prays.

It, therefore, becomes important to first determine whether the court erred in divesting defendant Hodnett of the title.

We do not believe there is sufficient evidence to justify the conclusion that Hodnett had actual notice of plaintiff’s claim to this land at the time Hodnett made the purchase. It is- true Catterlin testified that he told Hodnett of the pending litigation, before Hodnett bought the land. This is denied by Hodnett. Hodnett’s subsequent action in paying Catterlin $1920 to satisfy the two deeds of trust held, by Catterlin against the property is convincing proof, we think, that Hodnett did not know of the plaintiff’s equity at the time of the purchase.

Should it be said that Hodnett is chargeable with constructive knowledge of the outstanding equities'? We think not.

It is admitted that statutory notice of lis pendens was ■not filed by plaintiff prior to Hodnett’s purchase of the land, so that it cannot be contended that he is chargeable with constructive notice from that source.

The only other source from which constructive notice might come would be from the character of the deed given by Catterlin to Lyons and which lies within Hodnett’s chain of title. This deed was in effect nothing more than a quit-claim deed with the special warranty covenanting against anyone who might claim under the grantor.

The general rule in this State is as follows: “A grantee in a recorded quit-claim deed for value who has no actual notice holds a good title against a prior unrecorded deed, subject to record, and holds a good title against any equity to which the recording act applies. . . . A quit-claim deed does not bar outstanding equities not the subject of record.” [Hendricks v. Calloway, 211 Mo. 536, l. c. 563-4, and cases therein cited.]

The same rule is also applicable to a special warranty deed which limits the covenants of warranty against persons claiming to hold under the grantor. ’[7 R. C. L. 1129; Mann v. Best, 62 Mo. 491, l. c. 497.]

'/ So far as we are aware the application of the rule in this State has been limited to cases wherein the grantee in the quit-claim deed was the person claiming to be the purchaser in good faith. In the case at bar defendant Hodnett holds under a general warranty deed and the two deeds in the chain of title immediately preceding defendant’s deed were also warranty deeds. The special warranty deed was therefore remote from the transaction by which Hodnett acquired title. Should'the general rule applicable to the grantee in a quit-claim deed be applied to a grantee in a subsequent warranty deed?

The great weight of authority upon what appears to us to be the sounder logic is to the effect that a subsequent grantee in a general warranty deed is not prevented from occupying the position of a bona-fide purchaser, without notice, merely because some prior conveyance in his chain of title is a quit-claim or special warranty deed.

The rule here applicable is correctly and tersely stated in 39 Cyc. 1696 as follows: “Even in those courts in which the rule prevails that one who takes under a quitclaim deed cannot be a bona-fide purchaser, it is limited to the grantee in such a deed, and not extended to those cases in which a quit-claim is only a prior conveyance in the chain of title.” To the same effect are the following authorities: Stanley v. Schwalby, 162 U. S. 255, l. c. 277; 23 Am. & Eng. Ency. Law, 512; Otis v. Kennedy, 107 Mich. 312; Rich v. Downs, 81 Kan. 43; Hannan v. Seidentopf, 113 Iowa, 658; Meikel v. Borders, 129 Ind. 529.

Nothing herein stated conflicts with the decision announced in the case of Mason v. Black, 87 Mo. 329, l. c. 342-4. The decision in that case turned upon the proposition that- the quit-claim deed, forming a prior link in the chain of title, contained a peculiar clause sufficient within •itself to put the subsequent purchaser under.a warranty deed upon inquiry. The case is therefore clearly distinguishable from the case at bar. Neither does our holding conflict wtih the ease of Freeman v. Moffitt, 119 Mo. 280, l. c. 302, cited by respondent. What was said in the Mof.fitt case refers merely to the prior special warranty as one fact to be considered with other circumstances tending to prove notice, and cannot be said to be in any manner an attempt to state a rule that subsequent purchasers could not be bona-fide purchasers merely because a prior quitclaim or special warranty deed appeared in the chain of title.

We do not feel that the facts are sufficiently developed in this record to justify us in attempting to settle the question' of accounting between plaintiff and defendant Catterlin, but are of the opinion that that question can be more accurately adjusted by the trial court upon a new trial.

The judgment, is reversed and the cause remanded with directions to the trial court to dismiss the bill as to defendant Hodnett, and to proceed with a new trial on the question of an accounting as between the plaintiff and defendant Catterlin. And to this end either party may, if he so desires, so amend the pleadings as to more clearly draw the issue upon that question. All concur.


author: WOODSON, J. BOND, J.

text:
    C. W. WHITE v. F. A. DELANO et al., Receivers of WABASH RAILROAD COMPANY, Appellants.
    In Banc,
    February 13, 1917.
    1. PENALTY PENDENTE LITE: Violation of Freight Law. The penalty of treble-damages imposed by the Maximum Freight Rate acts of 1905 for an overcharge by a railroad company for the carriage of commodities was suspended during the pendency of the injunction suit brought by the carrier to enjoin the enforcement of the acts on the ground that the maximum rates fixed by them were confiscatory.
    2. -: -: Constitutional Right. The constitutional right of any person whose property or liberty is affected by a statute to bring a suit to test its validity would be impaired and invaded if the penalties imposed by the statute for its violation could he inflicted upon him for violations of the statute during the pendency of a suit brought in good faith.
    3. -: -: Right to Sue: Due Process. The right to sue and defend in the courts is one of the highest and' most essential privileges of citizenship, and a statute which imposes on a citizen penalties for bringing a suit to establish his constitutional rights, or that imposes a penalty for its violation during suit pending, would deny to him due process of law, for'it would impair his constitutional right to “certain remedy for every injury to person, property, or character.”
    4. SUSPENSION OF STATUTE PENDENTE LITE: Overcharge of Freight Rates. The Maximum Freight-Rate statutes of 1905, held to be invalid by the circuit court, but to be valid’ upon appeal to the Supreme Court of the United States, were not, as to. the freight rates fixed by them nor as to overcharges, suspended during the pendency of the appeal.
    5. DAMNUM ABSQUE INJURIA: Overcharges for Freight Shipment: Result of Suit. Overcharges for shipments of freight, made by a railroad company in violation of a statute during the time a suit of injunction to test the validity of the statute was pending, wherein the circuit court held the statute invalid and the Supreme Court on appeal held it to be valid, are not damnum absque injuria, as flowing directly from the legitimate prosecution of the injunction; but such overcharges paid by the shippers belong to them, and may be recovered by them from the carrier.
    6. .OVERCHARGES: Charges Paid Connecting Carrier. Where the consignees of a freight shipment were not located on defendant’s railroad, and a connecting company transported the cars to the consignees, for a consideration charged to and paid by defendant, and by the defendant charged to and paid by the shipper, the defendant has no legal right to surcharge the shipper’s account with such connecting charges, but when sued for the overcharges should be required to respond in damages for whatever overcharges it made and collected in excess of the rates fixed by the statutes.
    Appeal from Montgomery Circuit Court. — Hon. James D. Barnett, Judge. ■
    Reversed and remanded (with directions).

      J. L. Minnis, N. S. Brown and H. W. Johnson for appellants.
    (1) The demurrer to the evidence should have been sustained, because, (a) The Maximum Freight Rate Act was suspended for the time being, by force of the injunctive decree of the Federal court. State ex inf. v. Railroad, 176 Mo. 687; Young v. Railroad, 33 Mo. 509; Coal Co. v. Railroad, 52 Fed. 716; State v. Railroad, 130 Minn. 144; "Wadley Southern Ry. v. Georgia, 235 U. S. 651; Coal & Coke Ry. v. Conley, 67 W. Va. 129, 230 U. S. 522. (b) The alleged damages resulting to plaintiff are damnum absque injuria, because they directly flow from the legitimate prosecution of the injunction suit. Meysenberg v. Schleiper, 48 Mo. 426; St. Louis v. Gaslight Co., 82 Mo. 349; State ex rel. v. Williamson, 221 Mo. 264; Albers Com. Co. v. Spencer, 236 Mo. 628; San Jose Co. v. Cutting, 133 Cal. 237; Clay Center v. Williamson, 79 Kan. 485; Russell v. Farley, 105 IT. S. 445; Meyers v. Block, 120 IT. S. 208; Tullock v. Mulvane, 184 IT. S. 497; Railroad v. Elliott, 184 IT. S. 530; .Houghton v. Cortelyou, 208 IT. S. 149; High on Inj. (4. Ed.), sec. 1663. (2) The court erred in giving judgment to plaintiff for treble damages, because, (a) During tbe time tbe shipments were made, defendants were in good faith proceeding to test the constitutionality of thé Maximum Freight Rate Act, and during such time the penalties- provided by said statute could not be constitutionally invoked. Cases under point one, first subdivision. (b) The Maximum. Freight Rate Act provided the exclusive penalty for its violation, and the penalty of treble damages provided for by section 3241 cannot be invoked. See Sec. 2, Laws 1907, p. 171. (c) Sec. 3248, R. S. 1909 was repealed by said section 2. See sec. 5, Laws 1907, p. 171. (3) The court’s finding of fact on each count of the petition is contrary to the law and the evidence, and the judgment based thereon is excessive, because the court erroneously failed to allow each of the two carriers hauling the shipments, its maximum charges as provided by the Maximum Freight Rate Act. (4) The so-called continuous mileage provision of Sec. 3241, R. S. 1909, is invalid, because: (a) It is in conflict with the preceding parts of the section fixing the reasonable rates to be charged, (b) As applied to the facts in this case, the provision requires one of two things, viz.: (1) That the last carrier shall haul the shipment for nothing; or (2) that the first carrier shall, out of its revenues, pay the reasonable charges of the last carrier, and thereby reduce the revenues of the first carrier below the reasonable rates fixed by the statute. Owens v. Railroad, 83 Mo. 454. (c) The provision fixes no basis,fcjr dividing the total charges between the carriersinvolved in the haul, and is so indefinite and uncertain as to be incapable of enforcement, and therefore, void for uncertainty.

      Ernest E. Watson, W. P. Alden, Henry L. McCune and Clifford B. Allen, Amici Curiae.

      James F. Ball and Claude R. Ball for respondent.
    (1) The suspension of the enforcement of the statute could only suspend the enforcement of the law between the parties to that case until the injunction was finally determined, and when the injunction was dissolved it left the parties just where they were when the suit was begun. (2) If the railroad insisted on retaining the excess so charged, as they do here, the penalty of the statute should be invoked. (3) The statute complained of by the defendants in this cause has been upheld by the appellate courts of this State for'a great many years. Burk-holder Case, 82 Mo. 572; McGrew v. Railroad, 230 Mo. 496; McGrew v. Railroad, 177 Mo. 533; Cohn v. Railroad, 181 Mo. 30. (4) The overcharge of rate paid by the plaintiff in this case to the defendants was his as much after the payment of the same to the defendants as it was before. (5) The fact that plaintiff did not institute this suit against the defendants during the time the injunction suit was pending is in no way to the disadvantage of these defendants. (6) Such a statute as this enacted under the Constitution for the control of common'carriers, or those operating such a system, should he construed in the most beneficial way which its language will permit, so as to prevent common carriers, and those operating the same, from infringing upon the rights of the citizen. McGrew v. Mo. Pac. Ry. Co., 177 Mo. 545; Gott v. Powell, 41 Mo. 417; St. Louis v. Gaslight Co., 70 Mo. 69, 82 Mo. 349. These cases all hold that parties must he restored to their rights at the time of the institution of the injunction. (7) The court’s finding of fact on each count of the petition gave credit to the defendants for the legal rate they were entitled to charge the plaintiff for these various shipments from the point of beginning to their destination in the city of St. Louis. The court gave the defendants credit on each shipment for the amount they paid on each shipment to its connecting line, and rendered, a judgment against them for the excess in each count.

      W. F. Evans, E. T. Miller, J. M. Bryson, J. W. Jamison, Edw. J. White, J. F. Green, Thos. T. Railey and Thomas R. Morrow, Amici Curiae.

   WOODSON, J.

— This suit was instituted in the circuit court of Montgomery County by the plaintiff against the defendants as receivers of the Wabash Railroad Company, to recover alleged overcharges in payment of freight collected by" them on shipments of live stock, made by plaintiff from Montgomery City, Jonesbnrg, New Florence and High Hill, Missouri, to the city of St. Louis, Missouri, and consigned to the St. Louis Stock Yards, the St. Louis Dressed Beef Company and the Independent Packing Company. There was a judgment for the plaintiff, and the defendants appealed to this court.

The issues and facts of the case are undisputed, and are as follows, as stated by counsel for defendants:

“The. petition is based upon the Maximum Freight Statute of 1907 (Secs. 3241-2, R. S. 1909), and contains one hundred and thirty-nine separate counts, each count covering a separate shipment between the points named. As the allegations in each count are identical, except as to the place of'shipment, the freight charges paid, and the amount of the alleged overcharge, it is deemed sufficient to refer to the allegations of the first count.
“The petition.charges that ‘the defendants are the duly appointed receivers of the Wabash Railroad Company, and were during all of the times mentioned in the petition, operating the line of the Wabash Railroad as a common carrier of live stock in carload lots, for hire, and for carrying of all other stock usually and customarily carried and transported by railroad companies of like nature. That during all of the times mentioned, the plaintiff was engaged in the business of shipping hogs, cattle, sheep and other live stock in carload lots from Montgomery City, Jonesburg, New Florence and High Hill to St. Louis, Missouri.
“ ‘And for his cause of action against defendants, states that on the 3rd day of January, 1912, plaintiff shipped two carloads of hogs from Montgomery City, Missouri, to St. Louis, Missouri, over said Wlahash Railroad Company, owned and operated as aforesaid by the defendants, to the Independent Packing Company. That the distance between Montgomery City, Missouri, and St. Louis, Missouri, is over 75 miles and under 100 miles, to-wit, 85 miles; that the rate of charges prescribed by law upon the carload of hogs so shipped as aforesaid is and was $15.40 per car, amounting to $15.40; but instead thereof, the defendants charged and plaintiff paid, the sum of $21.75, being in excess of the legal rates aforesaid in the sum of $6.35, for which amount plaintiff asks judgment, and he asks that the same be trebled according to the provisions of section 3248 of the Revised Statutes of this State, and for all other due and proper relief.’
“The answer of defendants consists: (1) of a.general denial; and (2) a special plea setting up the various proceedings had in a certain injunction suit instituted by the Wabash Railroad Company in the United States Circuit Court at Kansas City, Missouri, in the month of June, 1905, and the filing of its supplemental bill in June, 1907, to enjoin the enforcement of the rates fixed by the acts of the General Assembly of Missouri, approved April 15, 1905, and the act approved March 19, 1907, commonly known as the ‘Maximum Freight Rate Acts.’ The defendants in said suit were the then members of the Railroad and Warehouse Commission of Missouri, the Attorney-General, and certain individuals continually engaged in shipping over the line of the Wabash Railroad Company. Said individuals being sued as representing all of the shippers of the State as a class affected by the Maximum Freight Rate acts. With respect to this proceeding, the answer alleges the following facts:
“ (1) That upon the filing of said bill of complaint, there was entered by said court an order restraining the Railroad Commissioners from taking any steps to put in force and effect the maximum rates mentioned in the said statutes; and from requiring the Wabash Railroad Company to post or file at any time or place said maximum rates or a schedule thereof, from taking, making out, printing or delivering any schedule of rates containing said maximum rates, from instituting any investigation of any complaint that the rate was unreasonable, extortionate of unjust, because higher than the maximum rate fixed by said statute, from directing the Attorney-General of the State or any prosecuting attorney in each and all of the counties in said State to prosecute or assist in prosecuting complainant, directly or indirectly, for any failure to file a schedule adopting said maximum rates or for any failure to adopt or comply with the provisions of said statute. That all the defendants, as well as all shippers, affected by the proceeding be restrained from instituting any action or taking any steps to collect any penalties for the alleged violations of the provisions of said maximum .freight rate acts.
“(2) That said restraining order also provided for the filing of an injunction bond in the sum of ten thousand dollars, conditioned to pay in case of the injunction being dissolved, all damages ascertained in said cause in the said court of the United States, to have been sustained by the defendants or any of them, or by any person becoming a defendant therein. That the Wabash Railroad Company, pursuant to such order, duly filed its bond in the amount and conditioned as required by said order.
“(3) That said cause proceeded to trial and final decree, which decree was entered on or about April 17, 1909, adjudicating and decreeing as follows:
“ (a) The maximum freight rate laws of Missouri of 1905 and 1907, and the passenger rate law of 1907, to be confiscatory, and that none of the provisions thereof should, or could, be rightfully enforced against the complainant, its officers, agents or employees; (b) the Attorney-General and the Railroad Commissioners, their agents, employees and successors were enjoined from enforcing or attempting, directly or indirectly, by suit or in any other manner whatsoever, to enforce any of the provisions of or the penalties provided for in any of said rate acts; (c) the bills, to the extent only as they sought to present injunctive relief against the individual defendants sued as representatives of the class of shippers or passengers, should be and were dismissed without prejudice, provided, however, that if, at any future time, any of them should take, or threaten or attempt to take any action under said statutes, the court reserved the power to make such other order as justice required, and to bring into' the case, any person not expressly made subject to the decrees, who might attempt or threaten to take any action or institute any proceedings against complainant under either of said statutes; (d) no appeal should supersede the injunctive portions of the decree, but, pending any such appeal, complainant should be permitted to charge the rates previously permitted by law, the same as if the passenger rate act of 1907 had not been passed, and (e) that complainant, having been, by order herein of June 17,1907, at the request of défendants, required to temporarily adopt, as a test, the rate fixed by the passenger law of that year, .should be and was permitted, free from the interference of the parties to the suit and classes represented by them who were ordered not to interfere, to restore and put in force the rates so authorized by previous laws, subject to the reserved power and jurisdiction of the court from time to time to enforce, change or modify such requirement, as well as to protect complainant in being restored to the right of which said temporary order deprived it.
“(4) That the defendant state officers appealed from the said decree to the Supreme Court of the United States. That the individual defendants refused to join in said appeal, and as- to them there was a severance, and no appeal was taken by them.
“(5) That on or about June 16, 1913, the Supreme Court of the United States reversed the decree which had been entered in the circuit court at Kansas City, and directed the bill of complaint of the Wabash Railroad Company to he dismissed without prejudice.
“ (6) That on or about July 9, 1913, the mandate of the Supreme Court of the United States was filed with the clerk of the district court of the United States at Kansas City. That thereafter the present Attorney-General of the State, and the then members of the Public Service Commission, were substituted as defendants in said cause,for their predecessors in office; that said defendants then asked that the mandate of the Supreme Court be entered, and that a decree be' entered dismissing the said cause without prejudice, which was accordingly done.
“At the trial,, counsel for the, plaintiff admitted the facts pleaded with respect to the proceedings in the Federal Court.
“The case proceeded to trial before the court (jury being waived). At the close of all the evidence the defendants interposed their demurrer to the evidence, which was by the court overruled, and the court took- the case under advisement. And thereafter, on October 20, 1915, the court rendered judgment in favor of the plaintiff and against the. defendants on each count of the petition, in the aggregate sum of $890.91; and further found that defendants were liable to plaintiff as a penalty in the sum of $2672.73, and entered judgment accordingly.
“The materal facts with respect to the shipments set forth in the various counts of the petition were covered by a stipulation between the parties, which stipulation shows the date of the shipment, the number of the car in which the shipment was made, the length of the car in feet, and the amount of freight charged and collected.
“The testimony further showed that plaintiff consigned the various shipments either to the Independent 'Stock Yards, the Independent Packing Company, or the. St. Louis Dressed Beef Company, all located within the city limits of the city of St. Louis. That the Wabash Railroad was unable to make deliveries to these consignees, because its line of railroad- did not extend to their industrial plants. - Deliveries were made in the following manner: The Wabash hauled the shipments to its point of interchange, in the city of St. Louis, with the St. Louis Terminal Railroad Association, and there delivered the cars to the Terminal. The Terminal hauled the cars from the point of interchange to the industrial plants of the consignees, and effected the delivery; so that, as to each of the shipments, two carriers were involved in the transportation from point of shipment to point of destination.
“The testimony further showed that all of the shipments were made during the months from January, 1912, to June, 1913, both inclusive; that during said time the defendants charged and collected freight upon said shipments computed according to their tariff then in- effect, which fixed the rates at a certain number of cents per hundred pounds, instead of a per car basis as fixed by the Maximum Freight Rate statute.
“The evidence further showed that under said tariff of rates, the Wabash Railroad did itself pay the Terminal Railroad Association for the service of that company, in hauling the cars from the point of connection of its line with the Wabash to the final destination of the shipments. In the language of the freight men, the Wabash ‘absorbed’ the Terminal charges out of its freight rate. The charge made by the Terminal Railroad to the Wabash for its service was three dollars per car on all shipments consigned to the Independent Packing Company and the St. Louis Dressed Beef Company, -aiid $1.50 per car on all shipments consigned to the Independent Stock Yards. The haul of the Terminal on shipments consigned to the Independent Packing Company and St. Louis Dressed Beef Company was about one mile, and the haul on shipments consigned to the Independent Stock Yards was about the same distance. ' •
“It was conceded by the plaintiff that the defendants had the right to charge against the plaintiff whatever charges it was required to pay to the Terminal Company, to effect the deliveries; whereas, the defendants contended that if plaintiff was entitled to ship his stock at the rates prescribed by the Maximum Freight Rate Act of .1907, then the defendants were entitled to charge the full statutory scale of rates for the actual distance which they hauled the shipment over their line, and likewise, the Terminal Company was entitled to charge the full statutory scale of rates for the distance it hauled the shipments over its line.
“The defendants requested the court to declare the law that, under the facts disclosed, by the testimony, the plaintiff is not entitled to recover treble damages on either count of the petition, but the court refused to so declare the law, and defendants contend that such refusal is violative of the constitutional rights of the defendants under sections 10 and 30 of article 2 of the Constitution of 'this State, and contrary to the Fourteenth Amendment to the Constitution of the United States.
“These various legal propositions were preserved in defendants’ motion for a new trial and in arrest of judgment, both of which the court overruled, and defendants thereupon perfected their appeal to this court, on the ground that the decision in the case involved the construction of the said provisions of the Constitution.”

Defendants rely on the following errors for a reversal of the judgment: •

“1. The trial court erred in overruling defendants’ demurrer to the evidence at the close of all the testimony.
“2. The trial court erred in giving judgment to plaintiff for treble damages.
“3. The trial court erred in giving plaintiff’s declarations of law numbered one, two and three.
“4.- The trial court erred in refusing to declare the law to be as requested in defendants’ declarations, of law numbered one, two, three and four.
“5. The . judgment is erroneous because excessive, and contrary to the law and the evidence. ”

I. While this suit is between plaintiff White and the receivers of the Wabash Railroad Company, yet eminent counsel for numerous other roads which have cases pending in the various courts of this State, involving similar questions to those here presented, asked and and were granted permission to file herein briefs amicus curiae; and while we have read and carefully considered all of them, yet we are not permitted to dispose of some of the questions therein discussed, because they are not involved in this case, and there are others discussed which are substantially the same as those presented and discussed by counsel in this case; consequently it would be a supererogation of labor to expressly notice and consider all of them separately in this opinion. Plowever, we will try to write the law as we understand it to be, as gathered from all of the briefs in the case, which show great learning and much industry in the presentation of the propositions involved.

Counsel for defendants ask that the judgment of the circuit court be reversed for numerous reasons assigned; the first of which is: that the Maximum Freight Rate Act of 1907, of this State, was suspended during the pendency of the injunction suit, mentioned in the answer, in the courts of the United States, and therefore the alleged damages suffered by the plaintiff are damnum absque -injuria, because they directly flowed from the legitimate prosecution of the injunction suit.

For the purpose of .clarity, this position of counsel should be considered and disposed of under three separate heads, namely: first, the intention of the Legislature regarding the penalty prescribed by said act for its violation during the pendency of the injunction suit mentioned in the answer, pending in the circuit court of the United States for the Western District of Missóuri; second, the alleged suspension of the Maximum Freight Eate Act, regarding plaintiff’s right to recover the excessive freight charges paid by him to the defendants; and, third, are the actual damages, the overcharges. paid by plaintiff, damnum absque injuria?

We will dispose of these three propositions in the order stated. Attending the first: Was said penalty clause of suspended during the pendency of said injunction , suit in said United States Circuit Court?

In support of the affirmative of this interrogatory, counsel have cited us to the following cases: State ex inf. v. Railroad, 176 Mo. 687; Young v. Railroad, 33 Mo. 509; Winsor Coal Co. v. Railroad, 52 Fed. 716; State v. Railroad, 130 Minn. 144; Wadley Southern Ry. v. Georgia, 235 U. S. 651; Coal & Coke Ry. Co. v. Conley, 67 W. Va. 129, affirmed 230 U. S. l. c. 522.

The first case cited has no application to the case at bar. That was a proceeding by quo ivarranto brought by the Attorney-General against the Atchison, Topeka & Sante Fe Ey. Co., to forfeit its charter for an alleged violation of the law, in charging shippers of grain to' Kansas City, a “reconsignment charge,” that is, a charge made by the defendant for transferring cars of grain from its. tracks to the tracks of other companies. Upon that state of facts the court held, and properly so, that said charges were not included in the statutes regulating freight rates, and that since the service was actually performed by the defendant, and the charges were reasonable, there was no violation of the statute or the common law of the State, and for that reason, among others, found the defendant not guilty.

The second case cited is an erroneous citation.

In the case of Winsor Coal Co. v. C. & A. R. R. Co., 52 Fed. 716, it was held by Judge Philips, District Judge, that the Triple-Damage Statute of 1887 did not apply where the carrier did not charge a rate in excess of the maximum rate established by the Railroad Commissioners, or the maximum rate permitted by the statute in the absence of any action thereon by the commissioners.' That ruling, in my opinion, was correct, but clearly it has no application to this case.

The case of State v. Chicago, M. & St. P. Ry. Co., 130 Minn. 144, was a criminal prosecution founded upon an indictment for the violation of the Minnesota statute fixing passenger rates, and prescribing a penalty for its violation. Prior to the institution of that prosecution an injuncton suit, similar to the one mentioned in the answer in the ease at bar, was brought, in the circuit court of the United States for theDistrict of Minnesota enjoining the enforcement of the Passenger-Rate statute. Under that state of facts the Minnesota court held that defendant could not bé convicted of a felony for violating the statute during the pendency of the injunction. That case, in my opinion, was properly decided, and clearly supports the proposition under consideration. To have held otherwise would have been a stroke at the very warp and woof of constitutional form of government, and if that clause of the statute had been sustained, the very rock-ribbed foundation of republican form of government would have been demolished. It not only violates the State and Federal constitutions, but, if valid, practically abolishes them. This is apparent to every one, for if such a penal statute should be upheld under the circumstances, then the penalty could be increased to such a degree that no one would dare challenge its constitutionality. In other words, if the penalty of such a statute should he held operative during the pendency of the injunction suit, then but few, perhaps, would be bold enough to test its validity, especially in doubtful case; but fortunately for the citizens of this country, both the State and the Federal constitutions provide that “courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character,” etc. [Sec. 10, art. 2, Constitution of Missouri, 1875.]

Section 2 of. Article 4 of the Constitution of the United States, and section 1 of the Fourteenth Amendment thereof, extend the rights guaranteed by the Missouri constitutional provision mentionéd, to all citizens of the United States. [Chambers v. Railway, 207 U. S. 142-148; International Textbook Co. v. Pigg, 217 U. S. 91.]

The same ruling has been announced by this court in the cases of International Textbook Co. v. Gillespie, 229 Mo. 397; British-American Portland Cement Co. v. Citizens Gas Co., 255 Mo. 1; Gold Issue Mining & Milling Co. v. Pennsylvania Fire Ins. Co., 267 Mo. 524.

The Supreme Court of the United States in the case of International Textbook Co. v. Pigg, supra, held that a statute of Kansas denying the right of a foreign corporation to sue in the courts of that State without first taking out a license to do business therein, was unconstitutional, null and void, and in so doing, used this language: “ ‘The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and the most essential privileges of citizenship, and must he alloived hy each State to the citizens of all other States to the precise extent that it is allowed to its oivn citizens. Equality of treatment in this respect is not left to depend-upon comity hetiveen the States, hut is granted and protected hy the Federal Constitution.’ ”

In the discussion of similar statutes this court in the cases cited, followed the rule just announced; and that being the law, it brushes aside all statutes making it necessary for citizens of this State and of the United States to first procure a license in order to exercise their constitutional right to sue and he heard in the courts of the country; then how much stronger is the reason for holding a statute unconstitutional which makes it a felony for a person to challenge the constitutionality of a statute, which it is claimed, if enforced, would confiscate the property of the contestant or take it without due process of law, as was claimed in the injunction suit mentioned, also in the Minnesota injunction suit? To deter a person from asserting his constitutional rights in a court of justice by prescribing excessive penalties, physical force or mental restraint, is for all practical purposes a denial to him of due process of law; he can only have the benefit of the due process-clause of the Constitution, by going into'court, being given a hearing and having'judgment pronounced according to the law of the sovereignty; and if for any good reason he is denied that right, then he has not had his.day in court, within the meaning of the State and Federal constitutions. In other words, the courts of this country will no more permit a partial closing of the doors of courts of justice to litigants, than they will tolerate- a complete closing — the fundamental law of the land established the courts, and by providing that they should be opened to all, means that they have no doors to close in the face of a bona-fide litigant; consequently any statute which denies or trammels the right.of a person to freely present his lawful rights to a court of justice for determination, must yield to the superior mandate of the Constitution.

A case perhaps more in point than those cited, is that of State ex rel. v. Johnston, 234 Mo. 338, following the rule announced in the case of Herndon v. Chicago, Rock Island & Pacific Ry. Co., 218 U. S. 135. In that case the Northern Arkansas Railway Company, a foreign corporation, duly licensed to do business in this State, was sued by a citizen of Missouri, in the circuit court of Newton County. In proper time and in due form, the company filed a petition in that court to' remove the cause to the circuit court of the United States for the Western-District of Missouri, on the ground of diversity of citizenship. Thereupon proceedings were instituted under the Act of March 13, 1907, to forfeit the license of said company to do business in this State, which in effect provided that if any foreign corporation licensed to do business, in this State should apply for a removal of a suit brought in any court of this State against it, etc., by a citizen of Missouri, it should thereby forfeit its right to do business herein. Thereupon the State, at the relation of said railroad company, applied to this court for a writ of prohibition to prohibit the-circuit court of Newton County and the Secretary of State from proceeding further in the proceedings brought to forfeit the licensé of said company. A temporary writ was issued, and upon the return c9ming in, the cause was heard upon its merits, and following the cases of Western Union Tel. Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56; Ludwig v. Western Union Tel. Co., 216 U. S. 146; Southern Railway Co. v. Greene, 216 U. S. 400, and Herndon v. Chicago, Rock Island & Pacific Ry. Co., supra, held said Act of March 13, 1907, unconstitutional, null and void. The real ground of that decision was that the Legislature of this State had no power, directly or indirectly, to prohibit the railroad company from exercising its right, under the Constitution of the United States, to remove said cause from the circuit court of Newton County to the circuit court of the United States.

If, therefore, the company had the constitutional right to remove said'cause to the United States court, as all of said cases hold, then-that right could not be abridged or prohibited by a statute of this State by imposing a penalty upon it for attempting a removal.

The case of Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, was a case where a statute of the State of Georgia empowered the Bailroad Commission, after a hearing, to make an order prohibiting railroad companies from demanding freight payment in advance on merchandise received from one carrier, while it accepts merchandise'of the same character at the same point from another carrier without such payment. In that case the court held that the order was not so arbitrary and unreasonable as to be violative of the due process clause of the Fourteenth Amendment. It also- held that a State has power to impose penalties sufficiently heavy to secure obedience to orders of public utility commissions after they have been found lawful or after the parties affected have had ample opportunity to test the validity of administrative orders and fail so to do; and that a party affected by a statute passed without his having an opportunity to be heard is entitled to a safe and adequate judicial review of the legality thereof. It is a denial of due process of law if such review can be effected by appeal to the courts only at the risk of having to pay penalties so great that it is better to yield to orders of uncertain legality than to ask the protection of the law.

In the case of Railroad v. Conley, 67 W. Va. 129, the court in discussing a similar rate statute held it invalid, as indicated by the 21, 22 and 23 paragraphs of the syllabus, which are as follows:

“21. Constitutional Law — Due Process of Law-Railroad' Rates. Legislative reduction of such charges so as to prevent the earning of such remuneration, amounts to a taking of private property for public use, without compensation to the owner thereof, and a rate-regulating statute, so operating, is void, in so far as it has such effect, being in conflict with section 10. of article .3 of the Constitution of this State and the Fourteenth Amendment to the Constitution of United States, inhibiting deprivation of property without due process of law, and also .with the equality clause of said amendment.
“22. Corporations — Public Service Corporations— Rate Regulating Statute. A public service corporation is éntitled to a judicial inquiry as to whether, in point of fact, a rate-regulating statute is confiscatory, and, if the Legislature has failed to prescribe or designate a mode of determining such question, the party aggrieved may invoke any appropriate remedy therefor in law or equity.
“23. Statutes — Partial Inability — Effect. If penalties are prescribed in such a statute as a sanction for due enforcement thereof, and the persons and corporations affected thereby are not expressly or impliedly excepted from- the operation of the penal clause, pending such judicial inquiry, and the penalties are so heavy and severe as to expose such persons and corporations to great risk of loss in prosecuting such inquiry, the entire statute is void on its face in so far as it so interferes, unless the penal clause is separable from the rate prescribing clause, in which case the former only is void to the extent aforesaid.”

The latter case was taken to the Supreme Court of the United States, and was affirmed by that court. The opinion is reported in 230 U. S. 513.

By a careful reading it will be seen that all of the cases cited by counsel for defendants that are in point, fully support the contention that the penalty clause of such a statute is suspended during the pendency of a suit to test the constitutionality of the statute which the penalty is designed to enforce.

But upon principle it seems to me that where a person is in good faith challenging the validity of a statute, the penal clause thereof, whether severe or lenient, should be suspended pending the litigation brought for that purpose. In my opinion, it was never the intention of the Legislature to have the penalty enforced during the pendency of the suit; but concede that such was its design, then, in my opinion, such clause would nevertheless, under the constitutional provisions mentioned, be suspended during that period.

I am therefore of the opinion, based upon both principle and authority, that the penal' section of the rate-statute was suspended during the pendency of the injunction suit testing the constitutionality of said act.

Regarding the second proposition previously mentioned, namely, was the rate act itself suspended during the pendency of the injunction suit testing the constitutionality of the act proper? ,

The cases heretofore cited and considered are relied úpon by counsel for defendants in support of their insistence that it was suspended, and therefore they contend that there was no overcharge made against or collected from plaintiff in any of the shipments mentioned in the petition.

After a careful consideration of those cases we are clearly of the opinion that they are not authority for counsel’s position. They were leveled at the penalty statute, and not at statutes fixing the rates of freight and passenger charges to be made and collected for the transportation of freight and passengers. '

In fact, no good reason has been assigned, or authority cited, in support of that contention. The act having been held valid by the Supreme Court of the United States, in the injunction suit mentioned in the answer, that seems to be an end of that question. I know of but two ways to suspend or repeal a statute duly enacted, and the first is by an act of the Legislature expressed or implied in the same or in a subsequently enacted statute, and second, by the courts of the State, in declaring a statute invalid in the exercise of their judicial authority.

The statutes now under consideration have never been suspended or repealed by any act of the Legislature, nor declared by any court to have been inoperative for any length of time, except the circuit court of the United States for the Western District of Missouri, which held the entire act unconstitutional; but that ruling was overruled by the Supreme Court of the United States when the ease reached there on a writ of error, thereby abrogating the judgment of the lower court ab initio.

. W e, therefore, hold that the act under consideration was not suspended during the pendency of the injunction mentioned, except as to the roads excepted by the judgment of the Supreme Court of the United States in said cause.

The third position mentioned by counsel for defendant is untenable; the contention being that “the damages (the overcharges made and collected from plainfrff) resulting to plaintiff are damnum absque injuria, because they directly flow from the legitimate prosecution of the injunction suit.’?

In ..support of that contention we are cited to the following authorities: Meysenburg v. Schlieper, 48 Mo. 426; City of St. Louis v. Gaslight Co., 82 Mo. 349; State ex rel. v. Williams, 221 Mo. 227, l. c. 264-5; Albers Comm. Co. v. Spencer, 236 Mo. l. c. 628; Fruit Packing Co. v. Cutting, 133 Cal. 237; Clay Center v. Williamson, 79 Kan. 485; Russell v. Farley, 105 U. S. l. c. 445; Meyers v. Block, 120 U. S. 206, l. c. 208; Tullock v. Mulvane, 184 U. S. 497; Railroad v. Elliott, 184 U. S. 530; Houghton v. Meyer, 208 U. S. 149; High on Injunction (4 Ed.), sec. 1663.

We havé read and carefully considered these cases and after due deliberation are of the opinion that none of them are in point.

The case of the City of St. Louis v. Gaslight Co., supra, is a fair sample of the rule announced in all of said cases. In that case the facts were these:

‘ ‘ The city of St. Louis instituted a suit in the circuit court, the object of which was to compel the St. Louis Gaslight Company to convey all its works to the plaintiff, to obtain an accounting of the rents and profits of the works and property subsequent to January 1, 1870, with decree of payment of the net balance thereof over expenses, and an order enjoining the company from any further prosecution of its business and for the appointment of a receiver to take charge of the works and carry on the business until the further order -of the court. No temporary injunction was asked or granted, and for that reason no injunction bond or stipulation by the plaintiff to pay damages consequent upon a dissolution of the injunction appear in the case.
“After a final hearing of the case upon its merits, the remedy as prayed for by plaintiff was granted, and the property was taken from the control of the company, and all further prosecution of its business enjoined. Upon appeal to the St. Louis Court of Appeals, this decree was affirmed, from which action of said court the company appealed to the Supreme Court. In this court the judgments of the lower courts were reversed and the cause was remanded, with directions to the circuit court to enter a rule requiring the receiver to restore to the company all the gasworks and property held by him in virtue of the decree, together with the profits derived therefrom, and to report his action thereon to the court; and upon approval of said report to dismiss the bill. [City of St. Louis v. St. Louis Gaslight Co., 70 Mo. 69.] After the ma.nda.tfv of this reversal was received by the circuit court, the defendant filed a motion with the view of having it carried out. In this motion the court was asked to ascertain and assess damages suffered by defendant by reason of the injunction before dismissing the bill. The damages claimed were stated in the bill of particulars as resulting from the reduction in the price of gas during the litigation, from reduction in the cost of lighting, extinguishing and cleaning public lamps, from expenditures incurred by the receiver and from attorney’s fees, aggregating in all the sum of $549,475.23. Soon after the filing of this motion the court entered a final decree dissolving the injunction and dismissing the cause without taking any notice of. that part of the motion which asked for an assessment of damages.”

The chief differentiation of that case from the case at bar is this: There, every cent the city collected, through its receivers, from the patrons of the Gaslight Company, during the time the injunction was in force, was properly accounted for to it, upon the dissolution of the injunction, and the city did not retain a penny of the company’s money; whereas in the case at bar, the defendants, upon the dissolution of the injunction, issued by the circuit court of the United States, have not refunded to plaintiff any of the money it collected from him during the pendency of the injunction, which was in violation of the rate act mentioned. The other damages the Gaslight Company complained of were of the character that naturally flow from the institution and prosecution of any ordinary suit, which cannot be recovered except as may be expressly provided for by law, or in a suit for malicious prosecution, where it is shown the suit was not brought in good faith. Clearly that case has no application to the case at bar; nor are any of the others cited applicable.

The only case cited, or that we have been able to find, which is directly in point, is thát of Love v. North American Company, 229 Fed. 103, decided by the United States Circuit Court of Appeals from the Eighth Circuit. In that case the Corporation Commission, under an Arkansas statute, fixed certain freight rates to be charged by railroads for the transportation of freight in that State; from the order fixing said rates the Frisco. Eailway Company appealed to the Supreme Court, and gave the supersedeas bond conditioned for the refunding of all charges collected above the rate so fixed, pending the appeal, if affirmed by the Supreme Court. For the purposes of this case the order of the commission was affirmed, and the railroad company collected freight charges in excess of the rates fixed by said order. In the meantime the road had gone into -the hands of receivers appointed by the United States Circuit Court for the District of Arkansas. In due time, the shippers of freight over that road, during the pendency of said appeal, the period the excessive rates had been charged and collected, presented their claims to the' receivers for allowance as preferred claims against the road. “Without stopping to notice the ruling of the circuit court, the Court of Appeals, in ruling in favor of the shippers, used this language:

“The question now might be properly asked to whom do the excessive charges received by the Frisco Company .for the transportation of freight belong? They certainly do not belong to the general creditors of the Frisco Company, nor to the bondholders, nor to' the Frisco Company itself. Without question they belong to the shippers. We must not be deceived as to the true status of this claim, nor allo.w the bond, or the fact .that the claim is presented by the corporation commission to blind us to the fact that the claim is one due to the shippers for excessive charges paid by them to the Frisco Company for transportation of freight. The shippers not only paid the lawful charge, but they did more — they paid an excessive charge. That payment was an illegal exaction, and as against the railroad company and volunteers like the receivers the money belonged to the shippers after the payment the same as before.”

, After a careful consideration of that case, we are satisfied with the reasoning and the conclusions reached by the court.

The rate statutes here under consideration are valid, as held by the Supreme Court of the United States, and therefore, the excessive charges collected from plaintiff were unlawfully collected. So the question naturally arises, as asked by said Circuit Court of Appeals, to whom do the excessive charges collected by the Wabash Company from the plaintiff for the transportation of his freight belong? They do not belong to the general creditors of the Wabash Company, nor to the bondholders nor to the Wabash Company, itself. Unquestionably they belong to the plaintiff in this case.

It must therefore follow that the judgment of the circuit court in so far as those collections are concerned, is correct, without it is reversed for some other reason assigned by counsel for defendants.

II. Counsel for defendants finally insist that the judgment of the circuit court must' be reversed for the following reason: “The Court’s finding of fact in each count of the petition is contrary to the law and'the evidence, and the judgment based thereon is excessive, because the court erroneously failed to allow each of the two carriers (the defendant company and the Terminal Railway Compnay, to which defendant delivered the cars, of freight for transportation and delivery to the consignees) hauling the shipments, its maximum charges, as provided by the Maximum Freight Rate Act.

It should be remembered that the consignees of the live stock shipped by plaintiff were not located upon the line of the defendants’ road, but about a mile and a half beyond its terminus, on the line of the St. Louis Terminal Railway Company, and that the latter company transported said stock to the various consignees, for a, consideration charged to and paid by the defendant company, and by the latter charged to and Collected from the plaintiff.

Under that state of facts this insistence of counsel is a moot question, for the reason that the Terminal Company never made nor collected of the defendants the charges now made for it by them. It charged three dollars per car for the services it performed for the plaintiff, and he has fully paid those charges, and the defendants have no legal right at this late day to surcharge plaintiff’s account with the items now claimed by them.

This view of the case also relieves us of the duty of deciding whether or not under the facts of this case the continuous mileage provision of section 3241, Revised Statutes 1909, is in conflict with the preceding parts of the section fixing reasonable rates to be charged, as contended for by counsel for defendants.

For the .reasons stated, the judgment is reversed and the cause remanded with directions to the circuit court, to enter judgment for the plaintiff for the actual excessive charges made and collected from plaintiff, less the sum the defendants paid the Terminal Company for delivering the ears to the consignees of the live stock shipped.

All concur; Bond, J., concurs in separate opinion.

BOND, J.

(concurring) — I concur only in the result reached in the majority opinion. The reasons for my concurrence are that when the suit of the State against the Chicago & Alton Railroad was held, by a divided court, not to be maintainable (265 Mo. 646), the points were pressed in argument that no recovery could be had by any shipper for charges exceeding the maximum rate fixed by the statute for the carriage of freight, pending an injunction suit brought in the Federal court to restrain the enforcement of that statute, and that in any event the amount fixed in the injunction bond given in the Federal court was the limit of liability on the part of the carriers. I dissented to the conclusion reached in the majority opinion in that case and in the course of my dissenting opinion I discussed, in extenso, the law applicable to those two questions. [265 Mo. l. c. 705, paragraph III of my dissenting opinion.] "What was said at the beginning of that paragraph and ending on page 709, expresses fully the legal. reasons why the State or any other shipper might recover the excessive rates charged by a carrier disobeying the statute during the pendency of a Federal injunction, and why such recovery could, neither in law nor 'logic, be limited to the amount of the bond given for the obtention of the injunction. It is unnecessary to republish what is there said. But for the reasons there given I concur in so much of the conclusion of the present majority opinion as affirms the right of the shipper to recover any overcharge exacted from him by a carrier during the temporary existence of the Federal injunction.