author: GRAVES, J.

text:
    THE STATE ex rel. SCHOOL DISTRICT NUMBER ONE, TOWNSHIP 45, RANGE 3 EAST, Plaintiff in Error, v. J. WILL ANDRAE, CHARLES A. CUNNINGHAM, JOHN P. OSSENFORT, JOHN D. RIPLEY and JOHN ZIMMERMAN.
    Division One,
    February 25, 1909.
    1. JUDICIAL MATTER: Constitutional Inclusion. The Constitution, investing “the judicial powers of the State as to matters of law and equity, in a supreme court, circuit courts,” etc., meant such powers as courts and judges exercise; such as are exercised in the ordinary forms of a court of justice, in a suit between parties, with process. It does not include every authority judicial in its nature, which requires the exercise of judgment or discretion.
    2. -: -: School District: Arbitration Board. The statute (Sec. 9742, R. S. 1899), providing that if an attempt is made to change the boundary lines between school districts, and the districts do not agree, a hoard of arbitration, appointed by the County Superintendent, shall determine the matter, does not create a court, and is not unconstitutional for that it gives said board the power to determine the necessity for the proposed change and to render a decision thereon. The board is a legal and constitutional body possessing the powers which were conferred upon it by said section, and the Constitution expressly gives the General Assembly power to provide for the establishment of school districts.
    3. SCHOOL DISTRICT: Change of Boundary: Appeal: Showing. The petition addressed to the County Superintendent to settle the dispute over the change of boundary in the two or more districts, should show authority in him and the arbitrators to act; and if it shows that there has been a valid election held in the interested districts upon the question submitted, that some of the • districts voted against the proposition and others for it, and that an appeal was taken within five days, he acquires jurisdiction of the matter, and can act.
    4. -: -: Notice. Where the petition for the appeal recites that the clerk of one of the school districts caused five notices containing a copy of the petition for the proposed change in the boundary line “to be posted up in said district in as many public places,” but does not recite that notices were posted in the other district, but does recite that the petition was presented to the clerk of said other district, it will be presumed that the clerk did his duty and caused the notices to be posted. And this presumption is strengthened by the fact that the proposition was voted upon by the legal voters of said other district at the annual school meeting.
    5. --: -: Appeal: Within Five Days. The County Superintendent is not required to keep any records of his proceedings in the case of an^ appeal to him of the question of changing the boundary lines of two or more school districts; and that being the ease, the absence from the record of any recital showing when the petition for the appeal was filed with him is not fatal, but he is presumed to have followed the law, and would not have proceeded with the case unless such petition had been filed within the time.
    Error to St. Louis County Circuit Court. — Hon. Jno. W. McEVhinney, Judge.
    AFFIRMED'.

      J. C. Kislcaddon for plaintiff in error.
    (1) The statutes in question in this case from the first enactment are as follows: Laws 1874, p: 151; R. S. 1879, sec. 7023; Laws 1887, p. 259; R. S. 1889, see. 7972; R. S. 1899', sec. 9742. (2) Certiorari is a direct attack and will reacli defects which could not be reached in any collateral proceeding. State v. County Court, 66 Mo. App: 1001; State v. Neosho', 57 Mo. App. 198; Railroad v. Young, 96 Mo. 43. (3) And the writ brings up only the record of the inferior tribunal and reaches the defects and irregularities which are apparent of the record, and which are jurisdictional in their nature. State v. Smith, 101 Mo. 174; State v. "Woodson, 161 Mo. 452; Hamilton v. Harwood, 113 111. 154; Whiting v. Board, 14 Cal. 456; Starr v. Trustees, 6 Wend. (N. Y.) 564. (4) And the facts necessary to confer jurisdiction on the inferior tribunal must affirmatively appear on the face of its record. In such case jurisdiction can not be presumed. The facts essential to the existence of the inferior tribunal must appear. School Dist. v. Burris, 84 Mo. App. 666; State ex rel. v. Denny, 94 Mo. App. 565; School Dist. v. Smith, 90 Mo. App. 224; School Dist. v. Neal, 74 Mo. App. 553; Cunningham v. Railroad, 61 Mo. 35; Williams v. Kirby, 169 Mo. 628; Anderson v. Pemberton, 89 Mo. 65; Whitely v. Platte Co., 73 Mo. 30; Jefferson Co. v. Cowan, 5 Mo. 234; Zimmerman v. Snowden, 88 Mo. 218; Spurlock v. Dornan, 182 Mo. 250; Railroad v. Young, 96 Mo. 41; Backenstoe v. Railroad, 96 Mo. 492; Fisher v. Davis, 27 Mo. App. 326; State v. County Court, 66 Mo. App. 100; Rousey v. Wood, 57 Mo. App. 651; State v. Neosho, 57 Mo. App. 198; McQuoid v. Lamp, 19 Mo. App. 156; School Dist. v. School Dist., 94 Mo. 612; People v. Goodwin, 1 Seld. (N. Y.) 568. (5) The statement of the jurisdictional facts in the petition filed before the inferior tribunal does not supply defects in the finding of the inferior tribunal. Such facts must have been proved before the inferior tribunal to exist, and such tribunal must have found them to exist, and put such finding in its record. Backenstoe v. Railroad, 86 Mo. 494. (6) The record in this case raises a constitutional question, and therefore the case is in this court. Plaintiff in error contends that the statute under which defendants in error assumed to act is unconstitutional. (7) The provisions of the Constitution to which reference is especially made are the following: Const., art. 6, sec. 1; Const., art 3. (8) The rule expressio unius, exclusio alterius is rigidly applied to the construction of constitutional powers. Ex parte Snyder, 64 Mo. 61; Ex parte Arnold, 128 Mo. 264; Heidelberg v. St. Francois Co., 100 Mo. 74; Bank v. Graham, 147 Mo. 257; State v. Bangsch, 170 Mo. 114. (9) A court is a body in the government to which the public administration of justice is delegated. It is a place where justice is judicially administered. State v. Woodson, 161 Mo. 453; Hobart v. Hobart, 45 Iowa 501; Co. Litt., 58a; 3 Black. Com., 23. (10) The Legislature is empowered by the Constitution to delegate certain executive, ministerial and legislative functions to certain, officials and municipal and quasi-municipal corporations, and when it has that power it can so delegate such functions. But there are executive functions which it cannot assume because they are expressly executive, and there is no grant of power to the Legislature to assume them. A fortiori, the Legislature can-hot delegate judicial functions unless expressly or by necessary implication empowered so to do. State v. Sloss, 25 Mo. 291; State v. Grant, 79' Mo. 128; State v. Washburn, 167 Mo. 691. (11) Is the board of arbitration provided by the statute in question an executive or administrative body? It is clearly not legislative. What, does the statute say it must decide? Although the statute does not expressly say so, yet it must be incumbent on the board to decide that all the necessary preliminary steps have been taken to warrant its own existence. The statute does expressly say it must decide “the necessity for such proposed change,” and, incidental thereto, it must decide that the change will not leave “by actual count, less than twenty pupils of school age” in either district, and, further, “that in changing the boundary line . . . shall not encroach-upon the other simply for the acquisition of territory.” It has been held that these boards act in a judicial and not in a ministerial capacity. School Dist. v. Burris, 84 Mo. App. 666; State ex rel. v. Denny, 94 Mo. App. 565. (12) There can be no involuntary arbitration. Arbitration is a matter of contract. 1 Am. and Eng. Ency. Law (1 Ed.), 647. (13) It may be contended that this manner of proceeding has been so long acquiesced in for many years that it would be improper to now hold the statute unconstitutional. No length of usage can enlarge legislative power, and a constitutional provision should not be broken down because of frequent violations or long acquiescence in such violations. St. Louis v. Dorr, 145 Mo. 485. (14) Nor can it be said that either of the parties are remediless. There is no question in controversy involving the exercise of judicial functions which cannot by statute be referred to some constitutional court of the State. Wonderly v. Lafayette Co., 1501 Mo. 654.

      B. H. Stevens and D. G. Taylor for defendants in error.
    As District No. 4 was and is directly interested in the result of the proceeding, it stands to reason that it should have been made a party defendant. School District v. Smith, 96 Mo. App. 225; State ex rel. v. Board of Education, 108 Mo. 241. Even if a statute contains no provision for or mention of notice, the law will imply that notice is requisite. Brown v. Weatherby, 71 Mo. 152; Wickham v. Page, 40 Mo. 526; Laughlin v. Fairbanks, 8 Mo. 370'. Chapter 154 of the Revised Statutes “is a code unto itself.” The courts “cannot write into the statutes any additional qualifications for a Board of Arbitration in such school district matters” is the language of this court, in State ex rel. v. McClain, 187 Mo. 4091. In the case at bar it does appear' from the affidavit of the arbitrators “appointed by the Superintendent of Public Schools of-St. Louis county, Missouri, as members of a Board of Arbitration,” etc., that said arbitrators were properly appointed, and that they possessed the necessary qualifications, to-wit: “Disinterested resident taxpayers of said county of St. Louis.” And from the written finding of the arbitrators, dated April 15, 1905, it does appear that they met with the Superintendent of Public Schools at the courthouse in Clayton, the county seat of said county of St. .Louis, at 10 a. m., on April 15, 1905, being within fifteen days after the annual school meeting, and after hearing all the evidence offered by both of said districts, both for and against the proposed change, “and after duly considering all of said evidence we find that a necessity does exist for the change as asked for,” etc. It also appears from the petition for appeal, or appeal, that the question submitted by the notices was' voted on in both of said districts, that a certain number of votes were cast for and a certain number were cast against the proposed change in each of said districts. The appeal, if filed in time, gave the Commissioner or School Superintendent power to act. He evidently found that it was filed within the required five days after the annual meeting. He therefore appointed the Board of Arbitrators, as appears by the affidavit returned, and he evidently found the other and necessary jurisdictional facts, though he made no record thereof, nor was he required to make any. State v. Gibson, 78 Mo. App. 170; Sch. Dist. v. Pace, 113 Mo. App. 141. It is true that the finding of the board does not affirmatively state that the change as made left a district “containing within its limits, by actual count, less than twenty pupils,” etc., nor need it so state. If the proposed change would have so reduced the school population of District No. «1 it had its remedy by injunction. The petition addressed to the Board of Directors and the notices as posted both stated the reason for the proposed change. The presumption is that the appeal was filed within the prescribed time. There was no record, nor none required by law to be made, of the date of the filing of the appeal. Nor was any record required to be made by either the Superintendent or the Board of Arbitrators. The statute under which they acted does not even direct that their finding be reduced to writing (though we concede that it should be reduced to writing and signed by the board), but only that they “consider the necessity for the proposed change and render a decision thereon, which decision shall be final. ” It is not made necessary for the board to disclose in what manner they obtained the evidence upon which they acted. They need have only informed themselves as to the necessity for the change. State ex rel. v. Denny, 94 Mo. App-. 559; State ex rel. v. Job, 205 Mo. 33; School Dist. v. Hodgin, 180 Mo. 79.
   GRAVES, J.

At the school meeting in April in the year 1905, an attempt (whether successful or unsuccessful remains to be determined) was made to change the boundary line between two adjoining school districts in St. Louis county. The relator is one of said two, and School District Number Pour in Township 45 North, Range 3 East, is the other. After the school election, one district having voted for said change of boundary and the other against it, the matter was taken before J. Will Andrae, the then Superintendent of Public Schools of said county for determination. He is one of the defendants in error herein. The other four defendants in error are the four men appointed by him as a Board of Arbitration under the provisions of section 9742, Revised Statutes 1899. This Board of Arbitration, in a written decision signed by the members thereof, found that a necessity existed for the change of the boundary line in question. The relator then made application to the circuit court of St. Louis county for a writ of certiorari, and was granted such writ. Returns were made to the writ, and after the filing of the returns, relator filed its objections thereto and moved for judgment. These both being overruled, final judgment was entered in favor of the respondents in that court, the defendants in error here. Relator filed motion for new trial which was overruled, and in proper time, to complete its record, filed its bill of exceptions. Thereafter, within one year, the pending writ of error was sued out in this court. J. Will Andrae having died before the hearing in this court, and proper suggestions of such death having been made, W. T. Bender, the successor in office of said Andrae, entered his appearance as defendant in error.

The numerous alleged weaknesses in the record of this inferior tribunal, the Board of Arbitrators, are thus set out by relator in its objection to return and motion for judgment:

“Now comes the relator and objects to the returns herein made by the several defendants, and alleges that it appears by said returns that the proceedings of defendants, as Superintendent of Public Schools of said county and alleged arbitrators, are void and that defendants had no jurisdiction to hear or determine or decide the matter in controversy as stated in the petition for writ of certiorari filed herein and which petition is made a part hereof, for the following reasons, to-wit:
“It does not appear by ány act, record, finding, order or judgment of said alleged board of arbitration:
“1. That said petition or appeal was filed with.or presented to said superintendent within five days after the annual meetings in said two districts.
“2. That said superintendent appointed four disinterested men, resident taxpayers of said county, to act with himself as a hoard of arbitration.
“3. That the other defendants alleged and claimed to be said board were or are disinterested or were or are resident taxpayers of said county.
“4. That said alleged board met said superintendent at any time or place in said county.
“5. That said alleged board met within fifteen days after said annual school meeting.
“6. That any notice of the time and place of said meeting, if any was held, was given to the relator herein.
“7. That a petition desiring any change of boundary between said districts was given or received by the clerks of either of said two districts fifteen days or more prior to the annual meeting in said districts.
“8. That any such alleged petition desiring a change of boundary was signed by at least ten qualified voters residing in both or either of said districts.
“9. That any such petition described the change of boundary desired.
“10. That both of the clerks of said districts posted or caused to be posted notices of said desired change in at least five public places in both of said districts at least fifteen days before said annual meetings.
“11. That any notices claimed to have been posted in said districts contained a description of said proposed change of boundary.
“12. That either or both of said districts voted on said proposed change of boundary.
“13. That any vote taken by said districts, or by either of them, did or did not favor said proposed change of boundary.
“14. That the decision of said alleged board of arbitration conforms to the proposition contained in any notice of the said proposed change of boundary.
“15. That the decision of said alleged board of arbitration conforms to the proposition voted on at the annual meeting of either or both of said districts.
“16. That the alleged decision of said board of arbitration defines, sets out or describes the proposed change of boundary between said districts, and that said decision is so vague and indefinite that the rights of the respective districts can not be determined therefrom.
“17. That the proposed change of boundary does not leave in any district, by actual count, less than twenty pupils of school age.
“18. That the proposed change of boundary between said districts is not made simply for the acquisition of territory one from the other.
“19. That any necessity exists for the proposed change or the facts upon which any such necessity is supposed to depend.
“And it further appears that said hoard of arbitration exceeded its jurisdiction in said controversy, and that said board had no jurisdiction whatever to decide said controversy for the following reasons:
“20. That the statute under which said alleged board was constituted and organized is contrary to and in violation of article VI of the Constitution of the State of Missouri and the amendments thereto.
“21. That said board as a court attempted to act under said statute and by said article of said Constitution the Legislature had and has no power or authority to constitute, authorize, organize or otherwise provide for any courts other than the courts in said article enumerated.
“Wherefore relator asks the court by its judgment and finding to declare and hold the proceedings of said alleged board null and void, and to vacate the same, and to render judgment for costs against said defendants. ’ ’

The case reaches this court owing to the fact that the constitutionality of section 9742, Revised Statutes 1899, is challenged. The portion of such section so challenged is the part which provides for the determination of appeals by the school commissioner and a board of arbitrators, and reads:

“ ... But if all the districts or parts of districts affected do not vote in favor of such change, the matter may be referred to the county commissioner; and upon such appeal being filed with him, in writing, within five days after the annual meeting, he shall appoint four disinterested men, resident taxpayers of the county, who, together with himself, shall constitute a board of arbitration, whose duty it shall be to consider the necessity for such proposed change and render a decision thereon, which decision shall be final. When there is an equal division the county commissioner shall give the casting vote. The commissioner shall at the time of the appointment of these members of this board of arbitration notify them to meet him at some convenient place in the county within fifteen days after annual school meeting where the deliberations of the board shall take place and its decision be rendered. But in making such change, the decision in all cases shall conform to the propositions contained in the notices and voted upon at the annual meeting; and the county commissioner shall, on or before the last day of April, transmit the decision to the clerks of the various districts interested, or to the clerk of the district divided, and said clerk or clerks shall enter the same upon the records of his or their respective district or districts.”

In counties where school supervision has been adopted by vote the name superintendent is given rather than that of Commissioner, but they perform the same duties under this statute.

Defendants in error maintain (1) that the law is constitutional, (2) that District Number Four is vitally interested and should have been made a party to the action nisi, and (3) that the law does not compel either the Commissioner or the Board of Arbitration to keep a record, and that the papers and records set out in the returns are sufficient. Such are the contentions of the parties.

I. We are first met with a constitutional question, and for that reason the cause reaches this court. Hon. John W. McElhinney, the judge trying the cause nisi, filed a written opinion upon this branch of the case, in which opinion we concur. The opinion is full of research, and we shall appropriate it as and for our discussion of this phase of the case. His opinion reads:

“In this case arguments have been presented on the proposition that the provision of the school law referring to the question of the necessity for the proposed separation of the district or change of boundary lines to a Board of Arbitrators gives to a body other than a court the determination of a judicial matter, and is therefore in violation of section 1 of article 6 of the Missouri Constitution.
“The law as originally enacted in 1874 required that the matter be referred to the county commissioner for final decision, who shall ‘inform himself as to the necessity of the proposed change’, and his decision thereon shall be final. [R. S. 1879, sec. 7023.]
“Even if this did refer to the county commissioner the determination of a judicial matter, it was not in violation of the Constitution of 1865, then in force.
“By that Constitution it was provided as follows: “ ‘The judicial power, as to matters of law and equity, shall be vested in a Supreme Court, in district courts, in circuit courts, and in such inferior tribunals as the General Assembly may, from tiihe to time, establish.’ [Const. 1865, art. 6, sec. 1.]
“This would seem to authorize the General Assembly to refer to the county school commissioner, as an ‘inferior tribunal’ for this purpose, the authority to determine such questions as these.
“The provision of the school law, in this respect, continued in force after the change in the Constitution in 1875, and was changed by amendment to its present form in the revision of 1899. [R. S. 18991, sec. 9742.]
“Its validity must be considered in its present form, as governed by the Constitution of 1875. That constitutional requirement is as follows:
“ ‘The judicial powers of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, probate courts, county courts and municipal corporation courts.’ [Const. Mo. 1875, art. 6, sec. 1.]
“The Constitution also provides for appointment or election of justices of the peace and the continuation of other courts than those named or provided for in the Constitution, until the expiration of the terms of office of the several judges. [Id., secs. 37 and 42.]
“The ‘judicial powers’ referred to in the Constitution are those ‘ as to matters of law and equity.’ This means such powers and authority as courts and judges exercise; such as legitimately pertain to an officer in the department designated by the Constitution as judicial; such as are exercised in the ordinary forms of a court of justice, in a suit between parties, with process. It does not include every authority judicial in its nature which requires the exercise of judgment or discretion. [State v. Hathaway, 115 Mo. 36, 48, 49, and cases cited.]
“This body provided for in the school law is a mere board or commission, entrusted with the determination of a matter or matters in dispute like any other commission or board, but having no authority to take testimony, to swear or compel the attendance of witnesses, or to do any of the ordinary acts incident to the procedure of courts.
“Their qualifications are that they are to be ‘disinterested men, resident taxpayers of the county.’ They are not required to be sworn. [State ex inf. v. McClain, 187 Mo. 409.]
“They, with the School Commissioner, constitute a ‘board of arbitration, whose duty it shall be to consider the necessity for such proposed change and render a decision thereon. ’ They may consider this question in any way they think proper. There is no course mapped out for them. They may, and no doubt should, investigate for themselves, on their own observation and information, as well as by taking the statements of others who are considered to have better information — that is, they should inform themselves, as the commissioner was required by the previous law, to ‘inform himself.’ Such are the ordinary qualifications and such the course of procedure of ordinary boards and commissioners, and it does not appear from the law that they are to pursue' any other or different course or exercise any higher authority.
“It is argued that the school districts concerned are ‘bodies corporate,’ and as such are parties to a controversy, having their respective rights to be determined by the decision. This is true. But they are bodies corporate, possessing ‘the usual powers of a corporation for public purposes.’ [R. S. 1899, sec. 9739.]
“The Constitution requires that ‘the General Assembly shall establish and maintain free public schools.’ And, subject to a few restrictions, this power is left to that branch of the government. [Constitution, art. 10, sec. 1 and fol.]
“A division into districts is necessary, and the Constitution expressly recognizes this. How this division shall be made is left to the General-Assembly. There is no 'restriction except the general limitation as to legislative action. That body establishes districts, provides for boards of directors and county and city superintendents, and, under general laws, provides for local self-government in school matters. This is not deemed or considered, a prohibited delegation of legislative powers.
“The districts exist for public purposes, under authority of the State. It becomes necessary that boundaries should be changed and new districts should be formed. This is left in the first instance to the people themselves, speaking through their qualified voters. If they disagree, the matter is appealed to the highest school authority of the county, who under the former law informed himself as to the necessity of the proposed change and decided it officially as a school officer, and who under the present law acts officially and in that manner selects and calls to his assistance citizens of the county, resident taxpayers. but disinterested, wbo consider tbe matter with him and render a decision. They are local representatives of the State, qualified by their residence and property interests, and selected by an officer on account of their fitness, to discharge a public duty with reference to the determination of a public question in which public interests are concerned.
“No one would contend that the Legislature should itself act directly in defining and changing the boundaries of each district in the State, without delegating this to local authorities, or that, however necessary a change may. be, it can be made only by consent ol both districts concerned. "We must conclude that the method of appeal to the commissioner for his decision, or for his selection of commission of disinterested and qualified citizens to assist him in forming a decision, is eminently appropriate. And, unless there is some prohibition in the Constitution, it should be upheld.
“It is nothing unusual in the law to provide that such matters of public concern, and even when they affect private interests, should be .considered and determined by a board or by commissioners. The selection of county seats, the location of public and private roads and drainage districts, the valuation and assessment of homesteads and exemptions are instances. Others may be cited. All these require the exercise of judgment and discretion. But no one could contend that they must be done within and by a court.”

With this argument and this conclusion we agree. The board of arbitration mentioned in and provided for by section 9742, supra, is a legal and constitutional body possessing the powers granted to it by said section. This contention of relator is ruled against it.

II. As to the merits of this controversy, the record before us shows the following return made by J. Will Andrae, County Superintendent:

“Now comes J. Will Andrae, School Superintendent, and, in obedience to a writ of certiorari issued on the 29th day of April, 1905, by the circuit court of St. Louis county, Missouri, and to me directed, does hereby return: The finding of the board of arbitrators appointed by me and made on the 15th day of April, 1905, and with it a petition of the board of directors of the Orrville School Board asking for the appointment of the board of arbitrators, a copy of the petition of the citizens of the Orrville and Bonhomme school districts to the board of the Orrville and Bonhomme school districts filed April 8, 1905, and the affidavit of the board of arbitrators, all of which papers are a part of the report and finding of the said board of arbitrators.”

To this was attached the following papers:

“Petition oe Appeal.
“Orrville, St. Louis County, Mo., April 6, 1905.
“To J. Will Andrae, Superintendent of the Public Schools of St. Louis county, Mo.
“Your petitioners, the undersigned Board of Directors of school district No. 4, township 45 north, range 3 east, in St. Louis county, Missouri, would respectfully represent and show that a petition signed by ten qualified voters of said district 4 and of school district No. 1, in said township and range, a copy of which is hereto attached, marked ‘Exhibit A’ was, on the 13th day of March, 1905, presented to the respective clerks of said school districts Nos. 1 and 4, asking that the question of changing the boundary line between said districts, as in said petition prayed for, be submitted • to the qualified voters of said respective districts at the annual meetings, to be held in said respective districts on Tuesday, April 4, 1905.
“That the district clerk of said district No. 4 'caused five notices to be posted up in said district, in as many public places, at least fifteen days before the 4th day of April, 1905. Which said notices contained a copy of said petition and notified the qualified voters of said district that the questipn of changing the district or dividing line between said district as prayed for in said petition would be submitted to the qualified voters of said respective districts at the annual meetings to be held in said respective districts on Tuesday, April 4, 1905.
“That at said annual meeting held in said district No. 4 upon the question of changing said boundary line twenty-four votes were cast in favor of the proposed change and one vote against said proposed change.
“That in said school district No. 1 no votes were cast for the proposed change and twenty-three votes were cast against said proposed change.
“Wherefore, the undersigned Board of Directors of said school district No. 4, township 45 north, of range 3 east, would respectfully appeal said proposition to you as Superintendent of the Public Schools of said county of St. Louis, Missouri, and pray that you inquire into and determine, as the law directs, the necessity of said proposed change in said boundary line, and that the same be granted as prayed for in said petition.”

(Signature omitted).

“Petition and Notice for Change of Boundary.
“St. Louis County, Mo., March 13, 1905.
“To the Clerk and Board of Directors of School District No. 1, in Township 45 North, of Range 3 East, in the County of St. Louis and State of Missouri:
“You are hereby notified that the petition hereto attached has been received by the clerk and Board of Directors of school district No. 4, in township 45 north, of range 3 east, in St. Louis county, State of Missouri, and is delivered to you by order of the Board of Directors of said district No. 4, a duplicate thereof remaining on file with me as clerk of said district No. 4. o Walters S. F'icke.
“Clerk of school district No. 4, township 45 north, of range three east, in St. Lonis county, Missouri.”
“Petition to Change Boundary Line Between Districts No. 1 and No. 4, Township No. 45 North, Range 3 East, in St. Louis County, State op Missouri.
“To the qualified voters of School District No. 4, Township No. 45 North, Range 3 East, and of School District No. 1, Township No. 45 North, of Range 3 East:
“The undersigned petitioners, qualified voters and taxpayers of district No. 4 and district No. 1, township No. 45 north, range 3 east, would respectfully pray that the boundary line between school district No. 1, township No. 45 north, range 3 east, and school district No. 4, township No. 45 north, range 3 east, all in St. Louis county, Missouri, be changed so that the following tracts of land be taken from said school district No. 1 and added to said school district No. 4, as follows, to-wit: [Description of the tracts of land, ten in number, the writer omits for brevity.]
“This change of boundary line as above prayed for is not asked for the mere ‘acquisition of territory’ or the ‘acquisition of revenue,’ but because the land in question belongs to the patrons of school district No. 4, and the diversion of their taxes to district No. 1 works a grievous hardship and injustice both to the patrons and children of district No. 4. It is also asked for the purpose of bringing into said district No. 4 certain children who now attend the school in district No. 4, because of the convenience thereto.
" Chas. Koeving” and eighteen others.
“Affidavit.
“We, the undersigned, having been appointed by the Superintendent of Public Schools of St. Louis County, Missouri, as members of a board of arbitration to consider the necessity for the change of the boundary line between school districts Nos. one and four in township forty-five north, of range three east, do solemnly swear that we are disinterested resident taxpayers of said county o’f St. Louis, and that we will do and perform the duties required of us as members of said board according to law and to the best of onr ability.” (Signatures and jurat omitted.)
" Arbitrators Decision.
" Clayton, Mo., April 15, 1905.
“We, the undersigned, Charles Cunningham, John P. Ossenfort, John D. Ripley and John Zimmerman, having been appointed by the Superintendent of Public Schools of St. Louis county, as members of a board of arbitration or appeals to consider the necessity for the change of the boundary line between school districts number one and four in township 45 north, of range 3 east, as prayed for in the petition hereto attached, and made a part of this report and finding, assembled at the courthouse in Clayton, the county-seat of said county,-at 10 a. m., Saturday, April 15, 1905,- and after being duly sworn, as shown by the affidavit hereto attached, together with the Superintendent of Public Schools of said county, heard all of the evidence offered 'by both of said school districts, both for and against said proposed change, and after duly considering all of said evidence, we find that a necessity does exist for the change as asked for by said petition, and do therefore find that said change should be made, according to said petition, and do therefore sustain the appeal.” (Signature omitted.)

These instruments constitute all the records in the office of the County Superintendent and the arbitrators had no records or papers whatever. The motion for judgment upon the returns challenged the sufficiency of these records, and such sufficiency is the question for our consideration. Relator says that there is a failure to show any authority in the superintendent and the arbitrators to act, and therefore their action is a nullity.

We cannot concur in the contention made by the relator. The petition for appeal is the document upon which the superintendent first acts. If this petition shows that there has been a valid election held in the two interested districts upon the question submitted, and that one district voted in favor of the proposition and the other against it, and this appeal is taken within five days, then the superintendent acquires jurisdiction of the matter and can act. Does this petition so show? We think so. It shows that the petition for the change of boundary line (which is good upon its face) was presented to the respective clerks on March 13,' 1905; it shows that the clerk of district' No. 4 posted up five notices, with the petition attached; that such act was done more than fifteen days prior to Aprii 4, 1905, the date of the annual school meeting; that at such meeting twenty-four votes were cast in favor of the proposition and one vote against it. Thus far, there is no question.

As to district No. 1, the petition only says: “That in said school district No. 1 no votes were cast for the proposed change and twenty-three votes were cast against said proposed change.”

It will be noticed that it does not aver that the notices were posted in this district, but it does aver that a vote was taken. It previously averred a proper delivery of the petition to the clerk of district No. 1, on March 13th. Under Revised Statutes 1899, section 9742, it was the duty of the clerk of district No. 1 to post these notices upon the receipt of the petition. It is presumed that this officer did his duty, and the fact that the proposition was voted upon lends color to the view that he did perform his duty. Whilst this averment is not just what it might he, yet we think when the whole context of the appeal paper is considered it is sufficient. These matters must he given a liberal construction. Upon this subject, Fox, P. J., in State ex rel. v. Job, 205 Mo. 1. c. 34, has well said: “While the statute controlling and regulating the public school system of this State and providing for the organization of school districts and the forming of new districts, and the change of boundary lines in other districts, should be substantially complied with in order to effect the purpose sought under the law, yet the proper and prompt administration of such law is of such paramount importance to the public, that the provisions of the statute providing for the settlement of disputes arising in the organization of school districts or the forming of new districts should receive at the hands of the court a reasonable and liberal construction. It is but common knowledge that matters pertaining to the interests of the public schools in nearly all the districts of this State rest with plain, honest, worthy citizens not specially learned in the law, and if we are to look at all times for a strict and technical compliance with the statute, then we confess that numerous districts in this Commonwealth would fail of their purpose, for the reason their organization did not meet such strict and technical requirements. Under our public school system and the law regulating it, new school districts are constantly being formed and old ones divided and changed; therefore, what was said by this court in State ex rel. v. Town of Westport, 116 Mo. 1. c. 595 (in which case it was sought to annul the incorporation of a municipality) may be very appropriately applied to the case at bar.”

But it is urged that the record fails to show the filing of the petition in appeal within five days, and for that reason there is a failure to show jurisdiction. So far as the record before us is concerned there is no file mark upon this paper, nor did the superintendent keep a record showing the date of the filing. The instrument itself shows the date of April 6, 1905, and the annual meeting was upon April 4, 1905. In abstracting the record, the relator has omitted the jurat to the oath of the arbitrators, the date of which might or might not tend to show the .date of the receipt of this petition in appeal. For instance, had the jurat shown the qualification of these arbitrators within five days from April 4th it would have been a strong circumstance, tending to show when the paper was received.- Of course they did not have to be appointed within that time, nor did they have to take an oath. [State ex inf. v. McClain, 187 Mo. 409.]

■ But it has been said that no extended record is required in cases of this kind. Thus in School District v. Hodgin, 180 Mo. 1. c. 79, this court said: £ £ The only evidence of the formation and creation of a new school district in this State, when it has been done, as in the case of plaintiff district, out of parts of two or more old contiguous districts, by the action of the county school commissioner and the board of arbitration called to his assistance, is that a decision to so form the new district is made and determined, and thereafter the commissioner, on or before the last,day of the following April of that year, transmits the decision to the clerks of the various school districts interested or affected by the formation of the new district, and that said clerks enter the same upon the records of their respective 'districts. This may be thought a rather vague and uncertain evidence of the corporate existence of so important a public body as a school district, but the statute has not provided nor required anything more definite or formal by way of an announcement of its formation and creation, or as a record evidence of its right to continued existence as a corporation, and as such the citizens and the courts must recognize it, until its life and authority have been assailed and overthrown by the State in a direct proceeding by quo warranto, to accomplish that purpose.

And in School District v. Pace, 113 Mo. App. 1. c. 140, the St. Louis Court of Appeals says: “It is contended by respondents that the certificate made by the board of arbitrators and transmitted to the clerks of the four districts affected constituted the entire record of the board of arbitrators. If this question was one •of first impression we would be inclined to hold that the record of these tribunals is composed of the petition or petitions presented to the clerk or clerks of the district or districts and the notices posted for the election, for the reason that upon these documents depends the jurisdiction of the arbitrators to hear the appeal and from them only can it be ascertained whether or not jurisdiction was conferred upon the arbitrators to act. The school statutes are silent as to what disposition shall be made of the documents; notwithstanding their importance the statutes make no provision for their custody or perpetuation. The only record the board of arbitration is required by the statutes to make is to reduce its decision to writing, sign it and hand it over to the commissioner, who is required to transmit it to the clerks of the districts affected.” The opinion cited and quotes from the Hodgin case, supra.

It is not necessary for the hoard to disclose by what means it arrived at the decision reached, nor from what, if any, evidence it was deduced. The statute says: “He shall appoint four disinterested men, resident taxpayers of the county, who, together with himself, shall constitute a board of arbitration, whose duty it shall be to consider the necessity for such proposed change and render a decision thereon, which decision shall he final.”

Of this statute, our courts have said that it only meant a mere informal investigation as to the propriety of such change of boundary lines. [State ex rel. v. Job, 205 Mo. 1. c. 33; State ex rel. v. Gribson, 78 Mo. App. 170; School District v. Pace, 113 Mo. App. 141.]

If, as appears to be the law, the superintendent is required to keep no records of his proceedings, then the absence of a record as to the filing of the petition for appeal within five days is not fatal, because this official is presumed to have followed the law, and would not have proceeded with the case unless such petition had been filed within time.

The written decision of the arbitrators, when taken in connection with the other document therein referred to and on file with the board of arbitrators, is valid upon its face and fully meets the requirements of the law. So that upon the merits the judgment, nisi, was correct, and as we have indicated in the preceding paragraph that such a board had a legal existence under the laws and our present Constitution, it follows that this judgment should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    LORA L. MOSS, Appellant, v. FRANK BRANT et al.
    Division One,
    February 25, 1909.
    1. PAYMENT: Application: Preponderance of Evidence. Where plaintiff and her then husband bought a ten-acre tract at the price of $2,000, on which there was a deed of trust for $400, and executed a second deed of trust on the same tract to the holder of the $400 note and a first deed of trust on another tract of seventy-five acres to secure the balance of $1,600, and in addition her husband put up $400 worth of notes as collateral security, on which $412 was collected and applied on the $1,600 note, and the trial court found that the collateral notes were 'given as a further security for the $1,600 note and not for the $400 note, and that finding is supported by the preponderance of the evidence, it will not be held that the $412 should have been applied on the $400 note secured by the first deed of trust and it declared thereby extinguished.
    2. DEED OF TRUST: Redemption: Wife. Where a wife joined her husband in the execution of a deed of trust on their then homestead, and she as the innocent party thereafter secured a divorce from him, there are ordinarily only two ways of protecting her married rights — one, by paying off the indebtedness before sale; the other, by substantially complying with Secs. 4343 and 4344, B. S. 1899, in an attempt to redeem.
    3. -: -: No Cause of Action. A petition which expressly charges that a deed of trust has been paid and fully discharged cannot be held to state a cause of action to redeem; nor can plaintiff be permitted, under such a petition, to redeem the property after a foreclosure of the deed of trust.
    Appeal from De Kalb Circuit Court. — Hon. A. D. Burnes, Judge.
    Affirmed.

      Heioitt & Héwitt for appellant.
    (1) Plaintiff bas an inchoate right of dower as well also as the homestead right in the ten acres in question; either of which would entitle her to the relief prayed, or such relief as would be just and proper in the premises necessary to protect either of these interests. R. S. 1899, secs. 2947, 3616; White v. Inghram, 110 Mo. 483; Hack v. Rollin, 158 Mo. 188; Blandy v. Asher, 72 Mo. 27. (2) Plaintiff, in addition to her dower right, and right of homestead, also acquired Oliver Gr. Mills’ equity of redemption under the trust deed securing the $1,600 note made by Mills and wife to Ewart, by virtue of the execution sale, and sheriff’s deed in evidence. Defendants at the time of the rendition of the judgment in favor of plaintiff had not acquired any interest in either of the notes secured by the trust deeds. The only right defendants acquired under the purchase of the $400 note was the right to have the payment of the debt and interest secured thereby, and these rights were acquired after the judgment and sale. Therefore, their right to collect the money was not impaired by the judgment, neither was their right prejudiced thereby. Both of these incumbrances, if valid, and existing, were prior to and superior to the judgment; and, therefore, defendants had no right to attack the validity of the judgment on account of the service had under the provisions of R. S. 1899, sec. 582. He had acquired no right to the equity of redemption in Mills. State v. Seebold, 192 Mo. 730; 6 Am. and Eng. Ency. Law (2 Ed.), 1090'; State ex rel. v. McIntosh, 205 Mo. 602. (3) The sale under the trust deed of Ross et ah, to Lahrman by trustee Brant was void, for the reason the land advertised for sale was located in township No. 59, instead of 60, as described in the trust deed and the trustee’s deed. (4) There is no evidence to support the finding that “the payments on said note were applied as directed by Oliver Gr. Mills.” Although a débtor makes no express designation of the debt to be paid, yet, if the circumstances attending the transaction are such as point out with a reasonable certainty his intention, it must be made accordingly. 2 Am. and Eng. Ency. Law (2 Ed.), 450, note 3. (5) The Ross note was the older debt; in fact the $1,600 debt had not been fully created at the time of the deposit of the $400 of collateral notes, and the Ross note was to become due two years after date, while the Mills $1,600 debt was to become due five years after the date thereof. Equity will require the application of the payment to the earlier of the two mortgages, especially as it becomes due more than three years before the $1,600 debt. Sanford v. Vanarsdale, 53 Hun 78; 2 Am. and Eng. Ency. Law (2 Ed.), 441, 447; Hessey v. Bennett, 28 Minn. 86; Bank v. Roosevelt, 9 Cow. (N. Y.) 409; Donnelly v. Wilson, 5 Leigh (Va.) 329. (6) A creditor cannot make an application that will be positively injurious to the debtor or even unreasonable or unjust. 2 Am. and Eng. Ency. Law (2 Ed.), 439; Clony v. Richardson, 34 Mo. 370; Murdock v. Clark, 88 Cal. 384; Bonnell v. Wilder, 67 111. 327; Frazier v. Lanham, 72 Md. 131; Heir v. Hawkins, 19 Vt. 26; Taylor v. Coleman, 20 Tex. 772. (7) And even though it be found that the debtor has made no express designation of the debt to be paid, yet if the circumstances attending the transaction are such as to point out with reasonable certainty his intention, it must be made accordingly. Draffen v. Boonville, 8 Mo. 395; 21 Cent. Law Jour.; p. 473; Robison v. Doolittle, 12 Vt. 346; Bank v. Benedict, 15 Conn. 438; Pierce v. Knight, 31 Vt. 701; Young v. Woodward, 44 N. H. 250; Gordon v. Hobart, 2 Story 264. (8) Where the payment is the same amount of the debt it may properly be inferred that it was intended that it should be applied to the former. Adams Ex. Co. v. Black, 66 Ind. 128; Seymour v. Van Slick, 8 Wend. (N. Y.) 493; 2 Am. and Eng. Ency. Law (2 Ed.), 451. (9) An application that will destroy the homestead should be avoided. Bank v. Hollingsworth, 78 Iowa 575. (10) A woman who has a right of dower subordinate to a mortgage on the premikes of which she is dowable, is entitled to redeem whether her dower right has become consummate by her husband’s death or is still inchoate. 10 Am. and Eng. Ency. Law (2 Ed.), 166; 11 Ibid. 223.

      Spencer & Landis and Wm. M. Fitch for respondents.
    (1) It is incumbent upon the party alleging fraud to prove the same; it is never presumed. The failure of defendant Ekin to testify does not change this rulé. Hoeller v. Haffner, 155 Mo. 589. (2) The appellate court, while not bound by the finding of facts of the trial court in an equity suit, will defer to its finding where the evidence is conflicting. Steyermark v. Laudan, 121 Mo. App. 402; Tinker v. Kier, 195 Mo. 183. (3) Even had plaintiff been entitled to a homestead in the ten-acre tract, her failure to reside thereon after separation from her former husband, her immediate marriage after obtaining a divorce, and thereupon making her home upon the last husband’s property, together with the fact that after her decree for alimony she directed the sheriff to levy upon and sell his ten-acre tract, constitute an express waiver of her homestead rights. 21 Cyc. 614, sec. 4, note 97; Parsons v. Cooley, 60 Iowa 268; Wilson v. Daniels, 79 Iowa 132. (4) Plaintiff cannot abandon his petition by setting up a reply containing a new or different cause of action from that contained in the petition. Therefore, the trial court properly held the question of plaintiff’s l'ight to redeem was not in issue under the pleadings. Stepp v. Livingston, 72 Mo. App. 179; Jackson v. Powell, 110 Mo. App. 252; Haynor v. Excelsior Springs, 108 S. W. 580. No reply is shown to have been filed in this case, nor any prayer to redeem filed. (5) Plaintiff claimed a right to redeem, but even if she had been entitled to raise that question by proper allegations in her petition yet such right is a statutory one, and she would have had to comply with the statute giving her that right, which she failed to do. R. S. 1899, sec. 4343; Sturgeon v. Mudd, 190 Mo. 209; McMillan v. Grayston, 83 Mo. App. 425; Thorn & Hunkins Lime & Cement Co. v. Bank, 158 Mo. 272.
   WOODSON, J.

This is an injunction proceeding, instituted by plaintiff against the defendants in the circuit court of DeKalb county, to prevent the' sheriff from selling certain real estate, located in that county, under and by virtue of a certain deed of trust to satisfy a debt, described therein, for the alleged reason that the debt had been paid, and that the sheriff and the other defendants had conspired together for the purpose of defrauding her out of her interest therein by selling said real estate under said deed.

The petition upon which the case was tried is as follows:

“Plaintiff for her first amended petition and cause of action states that from the 2d day of December, A. D. 1899, until the 23d day of October, A. D. 1902, she was the lawful wife of the defendant, Oliver G. Mills; that on the last-named date she was duly divorced from the bonds of matrimony existing between her and the said Mills, she being the innocent and injured party; that since said divorcement plaintiff has intermarried with Charles F. Moss; that during the time the marital relation existed between plaintiff and defendant Mills, to-wit, on July 18, 1901, defendant, Oliver G. Mills, had title to the lands hereinafter mentioned and described, on said date receiving a deed from Ernest B. Ross et al., conveying said property to him, the said defendant Mills; that theretofore and on the 13th day of June, A. D. 1901, the said grantors to the said defendant Mills of the said land, and before conveying the same to Mills, had made and executed their certain deed of trust to one A. B. Chrisman, trustee for James Ewart, conveying or purporting to convey to the said trustee the said lands before mentioned as having been by the said Ernest B. Ross et al. sold and conveyed to defendant Mills, and'described as follows: The south half of the south half of the northeast quarter of the northwest quarter of section number twenty-six, township number sixty, range number thirty-one, all in DeKalb county, Missouri; that the said trust deed is recorded in the records of DeKalb county in Book 36 at page 288 thereof; that said lands are of the reasonable value of fifteen hundred dollars and were at all times thereafter occupied and claimed as plaintiff’s homestead; that on the 18th day of July, 1901, defendant Mills and this plaintiff, at that time his wife, executed to one A. B. Chrisman, trustee, a deed of trust to secure to one James Ewart the debt in said deed described, which said deed is recorded in Book No. 39 at page 132 thereof of the records of DeKalb county, Missouri, and which conveyed or purported to convey the south half of the south half of the northeast quarter of the northwest quarter of section 26, township 60, range 31, and other lands of defendant Mills, all of reasonable value of at least $4,000; that immediately after the execution of the said last-named deed of trust defendant Oliver GL Mills offered to this plaintiff, then his wife, such indignities as to render her condition intolerable; and his treatment of her was so inhuman and cruel that she was compelled to and did separate herself and infant from him and seek a divorce from him, and alimony for the support of herself and infant; that shortly after plaintiff left the defendant Oliver Gr. Mills, and about the time she commenced proceedings for a divorce, said defendant, with the purpose, design and intent to' defraud plaintiff and deprive her of the support to which she was legally entitled as his wife, conspired with the defendant, James K. Ekin, to defraud this plaintiff, and the said Ekin was to and attempted to and is now aiding and attempting to aid and assist said Mills in his wrongful, fraudulent and unlawful efforts to defraud this, plaintiff of her rights as aforesaid, and to deprive this plaintiff of obtaining support out of the property of the said Mills, and the said defendant Mills, in pursuance of the said conspiracy, agreement and fraudulent combination with the said EMn, defendant herein, did, by quitclaim deed, recorded at page 408 of Booh No. 25 of the boohs of the records of DeKálb county, Missouri, convey to the said Ehin all the lands hereinbefore in this petition described, as well also all the lands whatsoever in the State of Missouri of which said defendant Mills was at said time seized and possessed or in which he had any interest, that is to say, all the lands owned by said Mills in the jurisdiction of the said court, which said court is and was the only court with jurisdiction to hear and determine the above-mentioned suit of this plaintiff against the said Oliver Gr. Mills for divorce and for alimony, and for the support of plaintiff and her said infant child, the child also of the said defendant Mills, or in any wise aid plaintiff in obtaining her legal rights as the innocent and injured wife of the said defendant Mills; plaintiff further says that it was understood and agreed by and between the said defendants Mills and EMn that the title of said lands should be held by said EMn for the use of said Mills until such time as it could be disposed of and realized on, at which time the proceeds should go to the said Mills; and that said deed was voluntary and without consideration from the said Ehin to the said Mills and was executed to carry out and effectuate said defendant’s fraudulent scheme and conspiracy to cheat and defraud this plaintiff aforesaid.
■ “Plaintiff further states that thereafter, to-wit, on the — day of--, A. D., 1902, she filed in the circuit court of DeKalb county, Missouri, her petition for a divorce from the said Oliver Gr. Mills and prayed for alimony in gross; that at the October term, 1902, of said court, a decree of divorce was duly granted her, divorcing her from the said Oliver G-. Mills, and judgment and order allowing her alimony in the gross sum of $2,387.50 were made and entered, all of which will more fully appear from a copy of said judgment and order hereto attached and made a part hereof, marked ‘Exhibit A.’
“Plaintiff further states that thereafter and on the — day of---, 1902, execution duly issued out of the office of the clerk of the said circuit court of DeKalb county, Missouri, on said judgment, and was duly levied on all lands herein and in said quitclaim deed and in said trust deed described, the property of the said Oliver Gr. Mills, and was by the sheriff of this county duly and lawfully sold, at which said sale this plaintiff became the purchaser and is now the owner thereof; that thereafter and on the 3d day of May, 1903, the trust deed above mentioned as having been executed by Ernest B. Ross et al. to A. B. Ohrisman, trustee for James Ewart, being still outstanding and in the hands of said Ewart, and being then and there apparently á legal debt and liability for the sum of four hundred dollars against the said described tract of land in section 26, township 60, range 31, and against the said Oliver Gr. Mills, but which said apparent debt and liability had in fact been fully paid off and discharged, viz., on the — day of--, A. D. 1901, by the defendant Mills, then plaintiff’s husband, but by inadvertence and mistake on the part of the then legal holder of said debt, the payment of the sums of money in discharge of said debt was placed as a credit upon the note and debt of the said Mills, secured by the other trust deed herein mentioned instead of being credited upon the note secured by the Ross trust deed aforesaid; said Mills in the further prosecution of his said fraud against this plaintiff and toward the consummation of his wicked, wrongful and fraudulent design and conspiracy against the lawful rights of this plaintiff, conspired with the defendants Lahrman and Landis to aid and assist him, the said Mills, whereby the said Lahrman and Landis, for a consideration to be paid by the said Mills to said Lahrman and Landis, agreed to take the money which the said Mills then and there agreed to furnish sufficient to pay and discharge the debt against said last-mentioned lands, due and owing to the same James Ewart, as aforesaid, and purchase the said debt or pretend to purchase the same and take a pretended assignment of the same in the name of the defendant Lahrman, and foreclose said trust deed and either turn the proceeds over to said Mills or hold the said lands for his use and benefit, and thereby defeat the lawful rights of plaintiff and defraud plaintiff of her title to said lands.
“Plaintiff says that in pursuance of and toward the fulfillment of said agreement and consummation of said fraud, said Mills furnished said Landis with the money with which to buy said debt and security held as aforesaid by the said James Ewart, and that said Landis paid said money to said Ewart and took said security in the name of the said Lahrman, and the said Lahrman, toward the fulfillment of his unlawful, wicked and fraudulent agreement, is now pretending to be the lawful owner of said debt and security aforesaid; that in the prosecution of said wicked, wrongful and unlawful agreement and conspiracy so entered into as aforesaid between and by said Mills, Lahrman and Landis, said Lahrman has requested one Prank Brant, sheriff, now, of DeKalb county, Missouri, in whom the said trust deed vests authority to sell in case of the refusal, failure or inability of said Chrisman, trustee in said deed named, and the said Prank Brant, sheriff as aforesaid, successor to said Chrisman as aforesaid, is, at the instance and request of the said Lahrman, the pretended owner of said debt and security, threatening to sell said lands under said trust deed, and is now advertising said lands for sale in the DeKalb County Democrat, a newspaper printed and published in Maysville, DeKalb county, Missouri, as will more fully appear by a copy of said publication hereto attached and marked ‘Exhibit B’ and made a part hereof, and will, if not restrained from so doing, sell all said lands and then and there and thereby cast a cloud on the title of plaintiff to said lands and thereby irreparably damage and injure this plaintiff. Plaintiff further states that she is without adequate and efficient remedy at law.
“Wherefore plaintiff prays that an injunction and restraining order be issued, directed against said defendants, Frank Brant and E. H. Lahrman and each of them, and that they and each of them, their servants, agents and representatives be enjoined from selling, assigning or disposing of said debt and security and from doing anything further toward the consummation of their fraudulent conspiracy, and that said injunction be made perpetual and that the said quitclaim deed to said Ekin be cancelled, declared void and held for naught, and that said debt mentioned and described in said trust deed be declared discharged and held for naught and for all other relief meet and proper.”

There was a trial had before the court which re-suited in a judgment for the defendants, and the plaintiff duly appealed to this court.

The facts of the case are substantially as follows:

On December 2, 1899, the plaintiff was lawfully married to the defendant Mills, and they lived together as man and wife uhtil October 23, 1902, on which day she was granted a divorce from him on account of his cruel treatment of her. Sometime subsequent thereto she intermarried with Charles F. Moss. On July 18, 1901, while she was the wife of Mills, he purchased ten acres of land, the south half of the south half of the northeast quarter of the northwest quarter of section 26, township 60, range 31, DeKalb county, Missouri. At the time of the purchase of the ten acres there was a deed of trust, dated June 13, 1901, upon it securing a note for $400 due one James Ewart, which debt Mills assumed to pay. The property was improved and was worth about $2,000. In order to enable Mills to pay for the property he borrowed $1,600 from said Ewart, who also held the $400 note and deed of trust against the ten-acre tract. To secure the $1,600 Mills and plaintiff, his then wife, executed to Ewart their note for $1,600, secured by a deed of trust on another tract of seventy-five acres of land he owned in sections 29 and 30, township 59, range 30, same county, and also covering the ten acres. As an additional security for said loan Ewart demanded and received from Mills other promissory notes he owned for the face value of $400. Shortly after acquiring the ten-acre tract Mills and his wife moved upon it and made it their home until the — day of----, when they went to the State of Wyoming. Shortly after reaching Wyoming plaintiff left Mills because of his cruel treatment, and returned to DeKalb county, and has resided there ever since, but not upon any of the lands mentioned in this suit. Upon her marriage to Moss she went to and has resided at his home ever since.

Sometime prior to the institution of the divorce suit, Mills executed to James K. Eldn, one of the defendants, a quit-claim deed, conveying to him both the ten-acre and seventy-five-acre tracts of land, for the expressed consideration of $1,509.

In the divorce suit service was had upon Mills in the State of Wyoming by leaving with him the summons and a copy of the petition, as provided for by our code for serving non-residents, and the judgment was by default. Upon granting plaintiff her decree the court also allowed and rendered judgment for her for the sum of $2,387.50 alimony, and upon that judgment an execution was issued from the circuit court of DeKalb county and levied upon the ten-acre tract and sold thereunder, and plaintiff became the purchaser thereof.

On March 18, 1903, defendant Landis, one of Mills’s attorneys, who had knowledge of all the facts, took an assignment of the two notes for $400' and $1,600, respectively, secured by the deed of trust before mentioned, and paid the said Ewart the sum of $1,617.12 therefor, and on the 28th day of the same month Landis assigned the notes to defendant Lahrman.

Defendant Brant, sheriff, at request of Lahrman, advertised the ten-acre tract for sale under the deed of trust. At this time the deed securing the $1,600 note had been foreclosed. At this juncture this suit was filed, seeking to enjoin the sale of the ten-acre tract; but failing to give an injunction bond as required by the court, the temporary injunction was refused.

The plaintiff at the trial offered testimony to prove that Mills and the other defendants had entered into a fraudulent • conspiracy to defraud her out of her interest in and to the two pieces of land mentioned, and that he furnished all the money which passed and was paid over in all of the assignments of notes and transfers of the property above mentioned; and that they were made for the purpose of putting said property out of his hands and thereby shield and protect it from seizure and sale in satisfaction of her said judgment for alimony, and to exclude her from recovering her marital rights of dower and homestead therein. Plaintiff also introduced testimony tending to prove that Ewart collected the four hundred dollars’ worth of notes placed in his hands by Mills as additional security when he purchased the ten-acre tract, and applied the proceeds thereof, to-wit, $412, upon the $1,600, when it was the under-, standing and intention of the parties that it should be applied upon the $400 note, secured by deed of trust upon the ten-acre tract.

The defendants upon the other hand introduced testimony tending to prove that all of said assignments and transfers were made in good faith and for full and adequate consideration paid in each and all of said transactions; also that the said four hundred dollars ’ worth of collateral notes were placed in Ewart’s hands as additional security for the $1,600 note, and that when collected the proceeds were applied upon the $1,600 note in pursuance to the agreement of the parties.

As before stated, the trial court found the facts-for the defendants and rendered judgment accordingly in their favor, from which plaintiff appealed.

I. The record discloses the fact that plaintiff brought two suits in the circuit court of DeKalb county, looking toward the preservation and reclamation of her interests in the two pieces of real estate mentioned in this case. This one regards the ten-acre tract, and the other involved the seventy-five-acre tract. That case'only involved the validity of the sale of that piece of property under the judgment for alimony. The judgment in that case was also against plaintiff and she appealed to this court, which was affirmed by this court. [Moss v. Fitch, 212 Mo. 484.]

In that case this court held that the judgment for alimony rendered against Mills was absolutely null and void because the trial court acquired no jurisdiction of his person by the service of the summons upon him in the State of Wyoming, and, consequently, the sheriff’s sale of the seventy-five-acre tract under the execution based thereon was likewise null and void.

That case fully covers and finally disposes of the judgment for alimony and her claim of title to both pieces of property by virtue of her purchase at the execution sale under the judgment for alimony; and thereby leaves in this ease only her claims regarding her marital rights of dower and homestead in the ten-acre tract.

II. If I correctly understand the position of counsel for appellant, it is this, that the evidence shows that the four hundred dollars’ worth of notes put up by Mills with Ewart were by the agreement of the parties to be taken and held by him as collateral security for the $400 note, secured by deed of trust upon the ten-acre tract of land, and not as additional security for the $1,600 loan; that when he collected those collateral notes, under the agreement, he should have applied the proceeds thereof upon the $400 note, and thereby have extinguished that debt, and not have applied the same upon the $1,600 note, as the evidence shows he did; that notwithstanding that application of payment, a court of equity will in this ■case apply the maxim of, “Equity looks on that as done which ought to have been done, ’ ’ and by so doing the $400 debt and deed of trust securing the same should in good conscience and are in equity paid and discharged, which leaves the ten-acre tract free of. all incumbrances except as to the deed of trust securing the $1,600 note; that the eviden.ce shows that the $1,617.12 which Landis paid Ewart for the $1,600 and $400 notes was furnished by Mills, and was, in fact, his money, and that when so paid by him such payment extinguished all liens and incumbrances against both pieces of real estate, and left her dower and homestead rights therein in full force and effect, and unincumbered; and that all subsequent assignments of the notes and conveyances of the property were fraudulent and void, because conceived and executed in pursuance to the fraudulent conspiracy before mentioned. '

The difficulty we are confronted with in lending our concurrence to that contention is the fact that the trial court found all the facts before stated and contended for by counsel for appellant against her and in favor of the respondents. Counsel concede the findings of the court are against their client, but they excepted to those findings and earnestly contend that the evidence disclosed by this record does not sustain or warrant such findings, and since this is a chancery case this court has the right to review the testimony and mate such findings as the evidence should require; and that by so doing the findings of this court would be contrary to those of the trial court, and in favor of appellant.

We have carefully read all the evidence of the case, and while we find some evidence which tends to prove appellant’s position, yet we are not in a position to hold that the findings of the trial court were without evidence to support them, or that they were against the weight of the evidence; but upon the other hand, we are of the opinion that the weight preponderates in favor of the conclusions reached by the circuit court.

The witness Jones, who represented Ewart in making the loan, testified unequivocally that the four hundred dollars’ worth of notes were placed in his hands as additional collateral security for the $1,600 note and not as security for the $400 note, and that when the notes matured he collected them and applied the proceeds thereof upon the $1,600 note according to the agreement.

This testimony is corroborated by the allegation of plaintiff’s petition that the ten-acre tract was worth $2,000 and that the $400 note was secured by a first mortgage thereon, which was ample security therefor, and no reason is assigned or shown by the evidence why he would want additional security for a note so well secured; hut, upon the other hand, Mr. Jones testified that why he wanted the additional security for the $1,660 loan was that there was a first mortgage against the ten-acre tract for $400 and that he did not think that the seventy-five-acre tract and the ten-acre tract with the mortgage against it was sufficient security for the $1,600 loan, and he therefore demanded and received the notes mentioned as additional security for the $1,600 note.

And as regards the conspiracy alleged to have been entered into between the respondents for the purpose of defrauding appellant out of her property, we wish to state that if the record contains any evidence of its existence it is so weak and unpersuasive that no court would be justified in so holding, even in the absence of respondents’ evidence, and when we weigh and consider it along and with that of appellant’s, we are free to state that in our opinion the trial court could have found no other way, and that its conclusions were clearly and unquestionably correct.

Having reached the conclusions above stated, we must therefore hold that the ten-acre tract, the one involved in this case, was subject to the $1,600 deed of trust at the time of the institution of this suit; and she having joined her husband in its execution, there were but two ways open to her for protecting her marital rights — one was by paying off the indebtedness before the sale, or by redeeming the property after the sale, as is provided for by sections 4343 and 4344, Revised Statutes 1899. And it is conceded that she did neither, nor did she offer to do either. [Snow v. Bass, 174 Mo. 149.]

This court has uniformly held that the provisions of those sections must be substantially complied with before a court of equity will permit her to redeem. [Sturgeon v. Mudd, 190 Mo. 200.]

III. There is another reason why appellant cannot prevail in her claim of her right of redemption, and that is, no such cause of action is stated in the petition. Obviously it is drawn on the theory that the judgment for alimony was valid and binding upon defendant Mills, and that her purchase of the property at the execution sale under that judgment vested the legal title to the same in her, and that all transfers made hy him were for the purpose of defrauding her out of her rights therein; and the clear object of this suit was to prevent further transfers and to remove the alleged fraudulent deeds as clouds from her title.

There are no allegations in the petition which charge that the property is incumbered by the deed of trust mentioned in the evidence and that she was willing to and had offered to redeem same, as provided by statute, but, upon the contrary, the petition expressly charges that the said deed of trust had been fully paid and should be released of record, because it constitutes a cloud upon her title.

The law is too well settled in this State to require citations of authority in support thereof, that one cause of action cannot be stated in the petition and a recovery he had upon another and different cause.

There are several other questions discussed by counsel for the respective parties, in their briefs, but since the foregoing observations fully dispose of the case, it is useless to prolong this opinion by discussing them.

We are, therefore, of the opinion that the judgment is for the right parties and that it should be affirmed.

It is so ordered.

All concur.