author: WOODSON, J.

text:
    E. R. DARLINGTON LUMBER COMPANY, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY.
    Division One,
    May 31, 1912.
    1. RAILROAD SWITCHING CHARGES: Long-and-Short Haul Statute.: Different Companies. The Long-and-Short Haul Railroad statute (Sec. 3173, R. S. 1909) applies only where the long and short hauls are made over the same road. If the short connecting track belongs to a different company, the statute does not prohibit a separate charge for the haul over that track. And a company duly organized and incorporated under the laws of the State is a different company, though its officers are made up of officers of the other two companies which mainly or solely use its short track.
    2. -: -: -: — : Taylor City Belt Line: World’s Fair. The Taylor- City Belt Railroad Company was duly organized and incorporated under the laws of Missouri, and its of- . ficers were the officers of the Missouri Pacific Railway and the St. Louis & San Francisco Railroad companies. It constructed a track something over a mile long, running north and south, and connecting between the two lines of railway, and used by each of those companies for delivering cars to the World’s Fair grounds. Held, that it was a separate road, and that its track could not be considered a switch of the Missouri Pacific Railway Company, rior does the Long-and-Short Haul statute compel the Missouri Pacific to refund to a shipper all sums in excess of three dollars per car charged for shipping cars over this short track to the World’s Fair grounds.
    3. -: -: Complaint by Another: Insufficient. The Long-and-Short Haul Railroad statute prescribes heavy penalties against all railroad companies violating it, and is highly penal, and must he strictly pursued; and a complaint, made before the Board of Railroad and Warehouse Commissioners, that a railroad company has violated its provisions in reference to switching charges, is to be determined upon evidence heard, and one shipper cannot make the complaint for another shipper. A complaint made by the St. Louis Lumberman’s Association (a voluntary association) of excessive charges by a railroad company on lumber shipped by lumbermen, including the E. R. Darlington Lumber Company, furnishes no proper basis for an order by the Board of Railroad and Warehouse Commissioners fixing a switching rate; and such an order, on such a complaint, gives to said E. R. Darlington Lumber Company no legal standing in the court in a suit for the recovery of the money which said order directed the railroad company to refund to the members of said association as an excessive charge.
    4. POWER TO SUE: Voluntary Association. A voluntary unincorporated association of lumber companies has no power to sue, either in its own behalf, or for the use and benefit of its members.
    5. PRACTICE: Prima Facie Case for Plaintiff: Peremptory Instruction for Defendant. Ordinarily where plaintiff makes out a prima facie case, it is error to give a peremptory instruction declaring he cannot recover. But if the evidence in rebuttal to his case is in writing, or matter of record,, and stands undisputed, and completely overcomes and destroys the prima facie case made for plaintiff, then it is perfectly proper for the court to declare the legal effect of said writing or record, by declaring, as a matter of law, that plaintiff is not entitled to recover, notwithstanding the prima facie case previously made by his evidence.
    6. RAILROAD SWITCHING CHARGE: Long-and-Short Haul Statute: Reasonable Charge: No Legal Complaint. The circuit court cannot declare what is a reasonable and proper switching charge, if the proceeding before the Board of Railroad and Warehouse Commissioners which undertook to establish a proper'charge, was not instituted upon a legal" complaint by plaintiff.
    Appeal from St. Louis City Circuit Court. — How. Daniel G. Taylor, Judge.
    Affirmed.

      George V. Reynolds and J. J. Howard for appellant.
    The court erred in giving defendant’s instruction, which was in the nature of a demurrer, at the close of all the evidence, and after arguments and submission of briefs and the taking of them under advisement by the court, for the following reasons: (1) The testimony of the plaintiff, together with the finding and order of the Board of Railroad and "Warehouse Commissioners, made a case of an unlawful, unreasonable and unjust charge for switching, which was made and collected by the defendant, which was not overcome by the defendant’s testimony. Sec. 1126, R. S. 1899; sec. 3173, R. S. 1909. (2) The introduction by the plaintiff in evidence of the order of the Board of Railroad and Warehouse Commissioners made a prima facie case for plaintiff, which.was not overcome by defendant. Sec. 1152, R. S. 1899; sec. 3203, R. S. 1909; Ross v. Railroad, 111 Mo. 18. (3) Even though the court might have found (although this does not appear in and by the judgment of the court) that the three dollar rate established by the finding’ and order of the .Board of Railroad and Warehouse Commissioners was not a proper rate, nevertheless it was error for the court to decide that plaintiff could not recover. The court should have declared what would be a proper rate. Sec. 1150, R. S. 1899; sec. 3201, R. S. 1909; sec. 1151, R. S. 1899'; sec. 3202, R. S. 1909. (4) The court erred in permitting defendant’s witnesses to testify, over the objection of plaintiff, as to the cost of construction, profit or loss of the operation of the Taylor City Belt Railroad, and as to the so-called rush nature of the World’s Fair shipments. Under Sec. 1126, R. S. 1899, now Sec. 3173, R. S. 1909, these matters were all immaterial and irrelevant. McGrew v. Railroad, 177 Mo. 533. (5) The plaintiff’s evidence showed a clear case of willful disobedience to the order and finding of the Board of Railroad and Warehouse Commissioners by the defendant, and the court should have found for the plaintiff. Sec. 1150, R. S. 1899; sec. 3201, R. S. 1909; sec. 1140, R. S. 1899; sec. 3191, R. S. 1909.

      R. T. Railey and J. F. Green for respondent.
    (1) Where a trial is had before the court, an appellate tribunal will not weigh the evidence, but will defer to the trial court’s finding. Plamilton v. Boggess, 63 Mo. 251; Bond Co. v. Houck, 213 Mo. 426; Assn. v. Grocer Co., 129 Mo. App. 135; Glade v. Ford, 131 Mo. App. 169; Jordan v. Davis, 172 Mo. 608. (2) Even in equity cases, it is the duty of appellant to present the entire evidence to this court, where it desires a review of the court’s finding and judgment. State ex rel. v. Jarrott, 183 Mo. 217; Guinan v. Donnell, 201 Mo. 209. (3) The judgment of the circuit court was correct on the evidence submitted. Coal Co. v. Mining Co., 161 Mo. 305; Pullman Co. v. Railroad, 115 U. S. 596; State ex rel. v. Railroad, 141 S. W. 643; Ailing v. Railroad, 99 U. S. 479; Smyth v. Railroad, 169 U. S. 546.' (4) The judgment being for the right party, it is immaterial on which theory the decision was made. Sloop v. Railroad, 200 Mo. 198; Gardner v. Robertson, 208 Mo. 605; Broderick v. Andrews, 135 Mo. App. 63; Vandiver v. Robertson, 125 Mo. App. 314. (5) The time originally granted for filing the bill of exceptions having expired when the order of December 23, 1907, was made, such order extending the time was invalid even by consent. Dorman v. Coon, 119 Mo. 68; State v. Stanley,. 221 Mo. 547; State v. Paul, 203 Mo. 686; State v. Culbreth, 203 Mo. 579; Fulkerson v. Murdock, 123 Mo. 298; Powell v. Sherwood, 162 Mo. 611; Doolittle v. Ward, 135 Mo. App. 616.
   WOODSON, J.

This suit was instituted by the plaintiff against, the defendant on account of the latter’s failure to obey an alleged order of the Board of Railroad and Warehouse Commissioners, ,to compel the defendant to refund to the plaintiff the sum of $1030.43, and for treble that sum for the failure of the railroad to pay said sum.

The petition in substance states that:

On or about February 16,1904, the St. Louis Lumbermen’s Association (a voluntary association) made complaint against the defendant to the Board of Railroad and Warehouse Commissioners regarding switching charges alleged to have been excessive, made and collected by the defendant and other railroad companies, on lumber consigned by shippers to consignees, the plaintiff included, within the enclosure of the Louisiana Purchase Exposition Company, at and near the city of St. Louis.

That said complaint was made by the St. Louis Lumberman’s Association, at the instigation of and on behalf of the plaintiff, and that the decision of said board, presently to be copied, was made for and on it behalf.

That the excessive charges made against the plaintiff, were charges of ten dollars per car, which were made and collected in addition to the' regular freight charges made and collected by the defendant on each car of lumber so shipped. That said board found that said ten dollars charge as a switching fee was “unfair, excessive, unjust, unreasonable and unlawful.”

That the road of the Taylor City Belt Railroad Company, which will be more particularly noticed later, was built and owned by the defendant and the St. Louis & San Francisc© Railroad companies; and that it was operated in severalty by each of said com: panies so that freight delivered to it through either of them was carried over it by that one of them which handled it in St. Louis, by means of that particular road’s own servants, employees, train crews, as well as by that particular road’s engines and cars, or by the engines and cars under its control. That in truth and in fact, the Taylor City Belt Line was nothing but a switch constructed and operated in order to enable those two roads to reach the grounds' of the World’s Pair. That the defendant advertised that it connected with the World’s Pair Grounds, and that plaintiff acted and relied upon such .representations and shipped its goods by defendant’s line. That said Taylor City Belt line was managed and controlled by the officers of the Missouri Pacific and the St. Louis & San Francisco Railroad companies. That the Taylor City Company owned no rolling stock of its own.

The defendant was duly served with notice of said complaint and was by said board notified of the time and place of hearing the same. The defendant appeared, was represented by counsel and introduced evidence at the hearing. .

The Board of Railroad and Warehouse Commissioners, having heard the testimony produced by the respective parties, as well as arguments by counsel, ■ took the matter of the complaint under advisement, and, after having duly considered it, on the 13th of January rendered the following decision, and duly served copies of it on the respective parties:

State of Missouri.

Railroad and Warehouse Department.

City of Jefferson, January 13, 1905.

In the Matter of the Complaint of the St. Louis Lumberman’s Association Against the Missouri Pacific Railway Company, Alleging Excessive and Unreasonable Switching Charges on Shipments of Lumber to the World’s Fair Grounds.

Formal hearing was held at the Commissioners’ St. Louis office, in the Equitable Building.

This Commission holds, and its contention is sustained by a written opinion of Attorney-General Hadley, that the Taylor City Belt Line is a property owned by The Missouri Pacific Railway Company and the St. Louis and San Francisco Railroad Company, and that said companies should not have made a separate charge in delivering shipments to the World’s Fair Grounds for the Taylor City Belt Line; that only one switching charge should be made through and to the grounds, and it is held by this Commission that a reasonable charge for the service performed in switching to the World’s Fair Grounds is three dollars; and The Missouri Pacific Railway Company is hereby ordered to make refund to the complainants on the basis of a three-dollar charge for switching to the World’s Fair Grounds.

By order of the Board of Railroad and Warehouse Commissioners.

(Seal) Joe P. Rice,

Chairman.

Attest:

T. M. Bradbury, Secretary.

„ The switching charge of ten dollars a car, which was declared to be unlawful by the Railroad and Warehouse Commissioners, was made and collected from the complainant by the defendant on 147 cars handled by it, over its road in the city of St. Louis and the Taylor City Belt railroad. An itemized list of these cars is contained in complainant’s “Exhibit B.”

On or about the 30th of January, 1906, the complainant made demand upon The Missouri Pacific Railway Company that it comply with the order and finding of the Board of Railroad and Warehouse Commissioners, and that it refund to complainant seven dollars a car on each and every car on which the unlawful switching charge of ten dollars had been made and collected by the defendant, which was on each of the 147 cars enumerated in Exhibit B. aforesaid.

The defendant, The Missouri Pacific Railway Company, failed to obey the finding and order of the Board of Railroad and Warehouse Commissioners and failed and refused to refund to complainant seven dollars a car or any part thereof, on all or any of the cars above enumerated.

Whereupon plaintiff instituted this proceeding in the circuit court of the city of St. Louis'for the purpose of compelling the defendant to comply with the order of the Board of Railroad and Warehouse Commissioners, and to refund to the complainant seven dollars a car on each and every one of the cars on which The Missouri Pacific Railway Company had collected the switching charge of ten dollars.

The testimony disclosed that the Taylor City Belt Line was about 5072 feet in length; that it ran in a north-and-south direction, and intersected the main track of the Missouri Pacific Railway Company on the south and the southern boundary of the Louisiana Purchase Exposition Company’s grounds on the north.

The evidence for the plaintiff showed that the free western switching limits in the city of St. Louis was a station on the Missouri Pacific Railway Company’s lines known as Cheltenham. ' That the distance from Cheltenham west to the intersection of the Missouri Pacific Railway Company’s line, by the Taylor City Belt, was about a mile; that the distance from Cheltenham to the Scullin-G-allager Iron Works was about one mile and a quarter.

The testimony developed that the switching charge ordinarily made on shipments of freight to the Scullin-G-allagher Iron Company was two dollars per car.

The testimony showed that the distance which the freight in the cars in question was hauled; namely, from Cheltenham to the World’s Fair boundary, was almost the same as from Cheltenham to the' ScullinGallagher Iron Works.

The testimony disclosed that neither the Missouri Pacific nor the Frisco reached the Louisiana Purchase Exposition grounds, and that the construction of the Taylor City Belt road was only for the purpose of enabling them so to do.

The testimony disclosed that as soon as these cars arrived the Missouri Pacific notified the complainant, the Darlington Lumber Company, that they were held subject to. the payment of switching and freight charges and that before these cars would be handled by the defendant the switching and freight charges had to be paid by the complainant.

The plaintiff’s testimony disclosed that of the ten dollar switching charge collected by the Missouri Pacific Railway Company from the complainant four dollars was paid to the Louisiana Purchase Exposition Company, and six dollars was retained by the Taylor City Belt Railroad and the Missouri Pacific Railway. That of this the Taylor City Belt received three dollars and the Missouri Pacific Railroad received three dollars.

The defendant railway company filed its answer in .due time and was as follows:

“Now comes the Missouri Pacific Railway Company, defendant in the above-entitled cause, and for answer to the petition filed herein, says that it admits that it is a railroad corporation organized and existing and operating a railroad in the State of Missouri; and is a common carrier of goods and lumber for hire in said State, and that its line enters and runs from the city of St. Louis, Missouri; but it denies that'its line of railway enters or did at any 5f the times mentioned in said petition, connect with, or run within a mile of the Louisiana Purchase Exposition Company’s site in said city and county of St. Louis.

“Denies that plaintiff, on the 16th day of February, 1904, or at any other time, made a complaint to the Board of Railroad and Warehouse Commissioners in the State of Missouri about excessive switching charges made and collected by this defendant on lumber consigned to plaintiff for the delivery inside of the Louisiana Purchase Exposition Company’s grounds at or adjacent to the city of St. Louis.

“Denies that it and the St. Louis and San Francisco Railroad built and owned the Taylor City Belt Line, or that either of said companies operated said line of railway, or that its officers, or those of the St. Louis & San Francisco Railway Company, managed said Taylor City Belt Line; on the contrary, defendant avers that said so-called Taylor City Belt Line' was built, owned and operated by a railroad company known as the Taylor City Belt Railway Company, which was duly incorporated and organized under and in accordance with the laws of the State of Missouri for. the purpose of transacting the business of a common carrier of passengers and freight for hire, between a point near the Scullin-G-allagher Company’s plant on the defendant’s railway and the World’s Fair site of the Louisiana Purchase Exposition Company in said city, a distance of about two miles.

“Denies that this defendant was duly, or in any manner, served with notice of any complaint filed by plaintiff with the Board of Railroad and Warehouse Commissioners of the State of Missouri of a hearing to be held by it on the complaint of the plaintiff.

“Denies that defendant ever appeared at any such hearing, or was represented thereat by counsel, or that any hearing was had by said Board of Railroad and Warehouse Commissioners of any such complaint.

“Denies that said Board of Railroad and Warehouse Commissioners, on the 13th day of January, 1906, or at any time, rendered any decision against this defendant wherein it was required to refund to plaintiff any switching charges paid by it to defendant for switching or hauling of cars consigned to it to the World’s Pair Grounds on the basis of a three dollar charge, or otherwise.

“Denies that said Board of Railroad and Warehouse Commissioners ever made any lawful order or requirement on this defendant to refund or pay to plaintiff any switching or other charges unlawfully exacted of plaintiff by it for hauling lumber to the World’s Pair site.

“Defendant admits that the Board of Railroad and Warehouse Commissioners of Missouri made the order quoted in the petition filed in this case, but denies that said order required this defendant to refund or pay to plaintiff any moneys received from it; on the contrary, said order was issued, ‘in the matter of the complaint of the St. Louis Lumbermen’s Association,’ and the order specifically requires a refund of an unascertained and unspecified overcharge to the complainant, the St. Louis Lumbermen’s Association.

“Defendant avers that no lumber was ever carried by it for said St. Louis Lumbermen’s Association, nor moneys received from it for the switching or transportation of any lumber to the World’s Pair Grounds, and no evidence was offered before said commissioners of any such bills or service, and that said order is therefore absolutely void and of no force and effect.

“Defendant further avers that no complaint has ever been made by plaintiff to the Board of Railroad and Warehouse Commissioners of the State of Missouri of any excessive or illegal charges made by defendant, or collected from plaintiff for switching cars to the World’s Pair Grounds; and that until such complaint is filed, or made against this defendant, said commission can have no jurisdiction of this defendant, or of any moneys paid to it for switching charges or otherwise,- and that this court cannot have, and has no, jurisdiction of the freight rates or charges made by defendant, or collected from plaintiff, because said Board of Railroad and Warehouse Commissioners in the State of Missouri has sole and exclusive jurisdiction- to determine the reasonableness of freight charges made by common carriers on freight hauled solely within the State of Missouri..

“Defendant denies that any complaint was ever made by plaintiff to the Board of Railroad and Warehouse Commissioners of the State of Missouri of the alleged overcharge on the specific carloads of lumber specified in its petition in this case, and that this court, therefore, has no jurisdiction thereover.

“Defendant admits that plaintiff paid to it ten dollars on each of the cars mentioned in its petition in this case, except the following, viz., 25833, 16727, 22408. Three dollars of which was paid to defendant for its services in switching or hauling the lumber contained in each of said cars from its connection with the carrier bringing said cars respectively into the city of St. Louis, in accordance with the regular published tariff of this defendant, which had been theretofore issued, filed with the Board of Railroad and Warehouse Commissioners of Missouri, and promulgated, as required by law, and was well known to plaintiff.

“That three dollars per car of said ten dollars was paid by plaintiff to defendant, as its agent, for the purpose of paying the freight charges that would be assessed on the lumber hauled by the Taylor City Belt Railway Company, from the junction of its railway with this defendant to the World’s Fair site, in accordance with its regular published tariff which had been theretofore issued, filed with the Railroad and Warehouse Commissioners of Missouri and promulgated, as'required by law, and was well known to plaintiff; and was paid by defendant to said Taylor .City Belt Railway Company, in accordance with plaintiff’s instructions.

‘ ‘ That four dollars per car of said ten dollars was paid by plaintiff to defendant, as its agent, for the purpose of paying a charge exacted by the Louisiana Purchase Exposition Company for the admission and handling within the grounds of said company of carload shipments of freight, in accordance with an order or rule which had theretofore been issued and promulgated by said Louisiana Purchase Exposition Company, and which was well known to plaintiff at the time all the shipments in controversy in this case moved; and that defendant, in pursuance of the instructions of plaintiff, paid said four dollars per car i each of the cars aforesaid to the Taylor City Belt Railway Company, with instructions to pay the same to the Louisiana Purchase Exposition Company, which was done by said Taylor City Belt Railway Company.

“For further answer and defense herein, defendant denies that the three dollar charge made by and paid to it by plaintiff for hauling the lumber contained in the cars mentioned - in plaintiff’s petition, which it herein admits to have received, were either unfair, excessive, unjust or unreasonable, but, on the contrary, avers that such charges were wholly inadequate to compensate defendant for the service rendered by it to plaintiff in hauling its lumber to the connection with the Taylor City Belt Railway aforesaid.

“Defendant also denies that the three dollar charge paid to it by plaintiff for delivery to the Taylor City Belt Railway for hauling the lumber contained in said cars from its junction with the Missouri Pacific Railway to the World’s Fair Grounds were either unfair, excessive or unreasonable, but, on the contrary, avers that said charges were wholly inadequate to compensate said Taylor City Belt Bailway Company for the services rendered hy it in hauling plaintiff’s lumber from its connection with the Missouri Pacific Bailway to the World’s Fair site.

“Defendant further says that said charge of six dollars per car made by the defendant and the Taylor City Belt Bailway Company for transporting the lumber in said cars from the point where it was received by the defendant to the World’s Fair site, was the same charge which was then, and for a long time prior thereto, had been made by the Wabash Bailroad Company and the St. Louis, Kansas City & Colorado Bail-way Company (the only two lines whose rails ran within the immediate vicinity of the World’s Fair site) for the transportation of lumber and other commodities from their connections in the city of St. Louis to points on their line in the immediate vicinity of the World’s Fair site, and requiring a haul of equal or lesser distance than that made by defendant aforesaid in the regular course of their business, and that all the lumber and other freight hauled by said railway companies into the World’s Fair Grounds were charged the same rate that this defendant received from plaintiff for hauling its lumber aforesaid; and that said charges of said Wabash Bailroad Company and St. Louis, Kansas City & Colorado Bailway Company were its regular published tariff rates for hauling lumber and other freight into the World’s Fair site and adjacent stations on its line during all of the World’s Fair period and for years prior thereto.

“That the service rendered by the defendant in hauling plaintiff’s lumber from the points where it was delivered to it by connecting carriers to its junction with the Taylor City Belt Bailway, at or near the Scullin-Gallagher Iron & Steel Company, was unusual, extraordinary, special and exceptional, in that the defendant was required to haul and deliver said lumber with greater celerity than it was accustomed to do with its ordinary traffic, on account of said lumber being intended for structures then being erected on the World’s Fair site, and that said deliveries were hastened by defendant at the special instance and request of plaintiff.

“That said service was not performed in the orderly and usual course of defendant’s business, but under great stress, and required a large amount of additional motive power and other equipment to handle said business with expedition, as required by plaintiff.

‘ ‘ That the defendant was required to, and did, expend a large sum of money in providing a connection with the Taylor City Belt Railway to facilitate the delivery of such freight to said Taylor City Belt Railway Company, and was required to, and did, construct hold or storage tracks aggregating about five thousand feet, on which cars were placed awaiting delivery to the Taylor City Belt Railway Company, which would not accept from defendant, or haul over its line, more than about five cars at a time, owing to the sinuous course and steep grades of its railway, which was constructed largely on trestles, which were rendered necessary by the peculiar topography of the country through which it ran. That said expenditures having been made for a temporary purpose, to-wit, solely to accommodate the World’s Fair traffic, were a total loss to defendant, because of the close of said World’s Fair and the dismantling and abandonment of said Taylor City Belt Railway, and that the charges made by defendant to plaintiff for hauling his lumber were wholly inadequate to compensate it for said loss.

“That the defendant was also required to expend large sums of money in clerical hire and otherwise, in preparing way bills and making proper delivery of freight to said Taylor City Belt Railway Company at its junction with the defendant’s line. That the service of hauling plaintiff’s lumber from the connection with the Missouri Pacific Railway to the World’s Pair site by the Taylor City Belt Railway Company was also unusual, extraordinary, special and exceptional, and said charges were wholly inadequate to compensate said Taylor City Belt Railway Company for the services thus performed, owning to the fact that said Taylor City Belt Railway Company was incorporated for the sole and temporary purpose of transferring passengers and freight from the Missouri Pacific and St. Louis & San Francisco Railways to the World’s Fair site, and vice versa.

‘ That the building of said road was very expensive, for the reason that it had to be constructed for almost its entire length on trestles, and owing to the number of sharp curves and steep grades, its operation was very expensive, in that an engine could not haul more than from five to seven cars on one trip in either direction.

“That said railway has been wholly dismantled and abandoned since the close of the World’s Pair, and that the revenues derived by it from the transportation of freight and passengers thereover fell far short of the cost of operation and construction, and that the freight charges paid by plaintiff to said Taylor City Belt Railway Company for hauling its lumber, was, therefore, wholly inadequate to compensate said Taylor City Belt Railway Company for its said service which was rendered without profit and at a great loss'to it; that said charges ought to have been at least twice as high in order to have rendered them remunerative.

“Defendant further avers that it had nothing to do with the fixing of the four dollar charge made by the Louisiana Purchase Exposition Company for the admission and handling of carload freight to and on the World’s Pair Grounds; that that was a charge and exaction over which neither this defendant nor the Taylor City Belt Railway Coupany had any control, which plaintiff well knew, at the time said charges were paid to said Louisiana Purchase Exposition Company. That said Louisiana Purchase Exposition Company exacted the prepayment of said four dollar charge on each and every carload of freight which entered the World’s Pair Grounds, and that fact was well known to plaintiff and all other shippers who sent carload freight into said World’s Pair Grounds.

“Defendant further avers that plaintiff, at the time he paid said freight charges to it and the Taylor City Belt Railway Company and the Louisiana Purchase Exposition Company, did so voluntarily and without complaint or protest to either of said companies, or to the Missouri Railroad and Warehouse Commission, and that he is, therefore, now estopped from claiming that said charges were illegal or excessive.

“Defendant further says that to require it to refund or pay to plaintiff any of the moneys received by it for freight charges aforesaid will be to deprive it of its property without due process of law, and deny to it the equal protection of the laws in violation of the Fifth Amendment to the Constitution of the United States and of section 1 of the Fourteenth Amendment of the Constitution of the United States, and of section 30 of article 2 of the Constitution of the State of Missouri.

“Defendant denies each and every other allegation in plaintiff’s petition contained, not hereinbefore expressly and specifically admitted.”

Plaintiff filed a reply in the nature of a general denial.

The plaintiff offered but two witnesses, whose testimony was brief and bore upon- formal matters.

The defendant offered the testimony of seventeen witnesses, many of them being railroad men of intelligence and wide experience. This testimony covers more than one .hundred printed pages, and for that reason it would merely prolong this opinion to set out even the substance of it.

They corroborated the principal portion of the testimony offered by the plaintiff and established beyond a reasonable doubt the allegations of the answer, and showed in their opinions that the ten dollar switching charge was, under the circumstances, reasonable and proper.

At the close of all the evidence, introduced by the plaintiff and the defendant, the court, at the request of the defendant and over the objection of the plaintiff, ‘ ‘ declared the law to be, that under the pleadings and evidence in this case the plaintiff is not entitled to recover,” and thereupon found against the plainttiff and in favor of the defendant, and rendered judgment accordingly. Within proper time and in due form the plaintiff appealed the cause to this court.

Counsel for appellant has assigned in this court the following errors:

1. The judgment and finding of the court in finding against complainant’s right to recover was rendered in disregard of the uncontradicted evidence.

2. The finding of the court was contrary to the law.

3. The finding and judgment of the court should have been in favor of the plaintiff.

4. The court erred in excluding relevant, .competent and material testimony offered by the plaintiff.

5. The court erred in admitting irrelevant, incompetent, illegal and immaterial testimony offered by defendant, and to the hurt and prejudice of the plaintiff.

6. The court erred in giving the instruction asked by the defendant.

7. The finding of the court was contrary to the weight of the evidence.

8. The court erred in overruling the objection of the plaintiff to the admission of testimony offered and introduced by the defendant.

9. The court erred in sustaining the objection of the defendant to testimony offered by plaintiff.

I. The first insistence of counsel for appellant is stated in the following language:

“The testimony of the plaintiff, together with the finding and order of the Board of Railroad and Warehouse Commissioners, made a case of an unlawful, unreasonable and unjust charge for switching, which was not overcome by the defendant’s testimony.”

In support of that insistence we are cited to section 1126, Revised Statutes 1899, now section 3173, Revised Statutes 1909.

This section of the statute governs what is known in railroad parlance as “the long-and-short haul,” and reads as follows:

“No railroad corporation organized or doing business in this State, under any act of incorporation or general law of this State, now in force or which may be hereafter enacted, shall directly or indirectly charge or collect, for the transportation of goods, merchandise or property on its said road for any distance, any larger or greater amount, as toll or compensation, than is charged or collected for the transportation of similar quantities of the same class of goods, merchandise or property over a greater distance upon the same road, nor shall such corporation charge different rates for receiving, handling or delivering freight at different points on its road or roads connected therewith, which it has a right to use, nor shall any such railroad corporation charge or collect, for the transportation of goods, merchandise or property over any portion of its road, a greater amount as toll or compensation than shall be charged or collected by it for the transportation of similar quantities of the same class of goods, merchandise or property over any other portion of its road of equal distance; and all such rules, regulations or by-laws of any railroad corporation, as fix, prescribe or establish any greater toll or compensation than is hereinbefore prescribed, are hereby declared to he void.”

• In our opinion this statute does not control this case, for several reasons.

(a) In the first place, this statute only applies where the long-and-short hauls are made over the same road; while in the ease at bar it stands undisputed that the two hauls mentioned in this record were made over different lines of road; namely, one was over the defendant’s road, the Missouri Pacific, and the other over the Taylor City Belt Line Railroad Company.

While it is true, the Board of Railroad and Warehouse Commissioners and some of the witnesses introduced for the appellant considered or treated the Taylor City Belt Line Railroad as a spur or switch to the Missouri Pacific and the St. Louis & San Francisco lines, nevertheless, all the competent evidence introduced shows beyond cavil that it is a separate and distinct company, duly organized and incorporated under the laws of the State of Missouri; and the mere fact that its officers are, or may be, officers in other railroad companies, does not in the least change the character of the Belt Line Company.

This was expressly so decided by this court in the case of Kansas & Texas Coal Ry. v. Northwestern Coal & Mining Co., 161 Mo. 288, l. c. 305. The same rule has been announced in the following cases: Pullman Co. v. Railroad, 115 U. S. 596; State ex rel. v. Missouri Pac. Ry. Co., 237 Mo. 338; State ex rel. v. Railroad, 241 Mo. 1; Railroad v. Alling, 99 U. S. 479; Smyth v. Ames, 169 U. S. 546.

We have been cited to no authority to the contrary, nor do we know of the existence of any such.

(b) In the next place, the record wholly fails to show that the appellant in this case made the complaint to the Board of Railroad and Warehouse Commissioners, challenging the reasonableness and legality of the ten dollar switching charge mentioned in the evidence, but upon the contrary, • the proceedings of the board and its decision filed in that case, show that said complaint was made by the St. Louis Lumbermen’s Association, and not by the appellant.

The statute requires all such complaints to be investigated and tried by the board, upon evidence introduced; also that its proceedings and decision shall be made of record and prescribes heavy penalties against all who violate the statute and disobey the decision of the board. Being highly penal, the statute must be strictly construed, and parol evidence should not be admitted to show that the complaint and proceedings made and had before the board in the name of the St. Louis Lumbermen’s Association was in truth and fact made for and on behalf of the appellant, which it nowhere appears from the face of the entire proceeding and decision rendered thereon, was a party thereto or had any interest therein whatever, either directly or indirectly.

That being true, the appellant had no legal standing in the circuit court, for the obvious reason that a legal finding and award by the board in favor of the appellant was a necessary prerequisite to the institution of this suit, which is predicated upon that finding and award; they being illegal, this suit must fail.

(c) Again the St. Louis Lumbermen’s Association, being a voluntary, unincorporated association, as such, has no legal authority to sue or be sued, in its own behalf, much less for the use and benefit of another, as it is claimed it attempted to do in this case, by making complaint before the Board of Railroad and Warehouse Commissioners, in behalf of the appellant.

Viewing the ease under the light of the foregoing observations, the trial court was fully justified in declaring, as a matter of law, that the plaintiff was not entitled to a recovery, notwithstanding the finding and decision of the Board of Railroad and Warehouse Commissioners being in its favor.

II. It is next insisted by counsel for appellant that the parol evidence introduced by it, together with the finding and decision of the Board of Railroad and Warehouse Commissioners, in its favor, made for it a prima facie case, and that thereafter the circuit court, in giving a peremptory instruction in the nature of a demurrer to the evidence, declaring that the plaintiff was not entitled to a recovery, was manifest error.

We will concede for the sake of the argument, without deciding the question, one way or the other, that the plaintiff’s evidence made out for it, as claimed, a prima facie case.

While the conclusions reached and announced, by us, in the former paragraph of this opinion, necessarily disposes of this insistence adversely to the contention of the appellant, nevertheless, it deserves some additional consideration.

Ordinarily it is true that where the plaintiff in a cause makes out a prima facie ease, it is error for the trial court, thereafter, to give a peremptory instruction declaring that he cannot recover therein. [Crossett v. Ferrill, 209 Mo. 704.] But this general rule of practice, like most others, has its exceptions and limitations; and among them is the following:

If the evidence in rebuttal is in writing, or a matter of record, and stands undisputed, and it completely overcomes and destroys the prima facie case made, then it is perfectly proper for the court to declare the legal effect of said writing or record, by declaring, as a matter of law, that the plaintiff is not entitled to a recovery, notwithstanding the prima facie case previously made by the evidence. This is elementary and the citation of authorities in support thereof is unnecessary.

We, therefore, decide this insistence against appellant.

III. Error is also assigned in the action of the circuit court in declaring that the plaintiff was not entitled to a recovery, even though it may have believed and found that the three dollar switching charge established by the decision of the Board of Railroad and Warehouse Commissioners, was unreasonable and void, but should have found and declared what would have been a reasonable and proper charge, and should have rendered judgment in favor of the appellant therefor, as provided for by sections 1150 and 1151, Revised Statutes 1899, now sections 3201 and 3202, Revised Statutes 1909.

There might have been some force and merit in this contention, if the proceeding which was instituted before the board, and in which said three dollar charge was established, had been legally instituted by and upon the complaint of the appellant as provided for by section 1141, Revised Statutes 1899, now section 3192, Revised Statutes 1909.

But that was not done, as we have shown in paragraph two of this opinion. For this reason we must decide this contention against the appellant.

IV. There' are two other questions presented and discussed, by counsel for appellant, in the briefs filed. One was a question of practice regarding the admission of testimony, and the other goes to the Wilful disobedience of the order of the board, by the respondent, which bears upon the right of the court to fine the latter.

It is evident, from the views we have expressed of this ease, that it is unnecessary to decide either of those two questions.

We are, therefore, of the opinion, that the judgment should he, and it is accordingly affirmed.

All concur.


source: Caselaw Access Project

author: GRAVES’, P. J.

license: Public Domain

text:
    LOUIS A. NALL et al. v. CHARLES NALL, Appellant.
    Division One,
    May 31, 1912.
    1 PARTITION: Interlocutory Decree: No Term Bill of Exceptions. Under the circumstances of this case, which was a suit for the partition of real estate under a will, which was not set out in the petition, but which did aver the land had been devised to their mother for life, with remainder to the two plaintiffs and defendant in equal portions, and pleaded certain incumbrances, to which defendant filed answer admitting the truth of the petition, and thereupon an interlocutory judgment was entered in accordance with the petition and ordering the land sold at the next term, it is held that the judgment of the court refusing, at the next term and before the land was sold, to permit defendant to amend his answer, so as to aver that neither the plaintiffs nor defendant had any interest in the land in dispute, but that the will converted the land into money, must be affirmed, because there is no bill of exceptions as to matters occurring prior to the interlocutory decree, and that decree recites that evidence was heard and argument of counsel made.
    2. WILL: Conversion of Real Estate Into Money: Reconversion by Parties: Mortgage. A will in legal effect may convert real estate into money, yet subsequent acts of the legatees may reconvert the subject-matter into land; and they may reconvert at any time before actual conversion takes place— the constructive conversion being the one made by the will, and the actual conversion, in the case of lands, being the one made by the sale. Where the land has never been sold under the provisions of the will, no actual conversion has taken place; but where, prior to a partition suit, each legatee has given a separate deed of trust upon his respective undivided aliquot interest, tliere was a clear election to reconvert and there was a reconversion. Likewise there was a clear reconversion by defendant when,, after the interlocutory decree and order of sale, he gave a deed of trust on his interest.
    3. -: -: -: By Petition and Answer. Legatees entitled to the proceeds of the land,-.by their petition and answer in the partition suit in which they claim the land rather than the proceeds, elect to-reconvert the subject-matter into land, although it was constructively by the will converted into money; and that they do by allegations in the petition that the land was left to their mother for life, with remainder in fee to plaintiffs and defendants, and pleading certain incumbrances in the land made by plaintiffs and by defendant, to which defendant answers admitting the allegations of the petition.
    Appeal from Clay Circuit Court . — Eon. F. E. Trimble, Judge.
    AnKIRMiED'.

      T. A. Witten, Chapman & Manger and Menry T. Ferriss for appellant.
    (1) To maintain partition the parties plaintiff and defendant must together have an actual estate in the lands sought to be partitioned. R. S. 1899', sec. 4373' (now sec. 2559', R. S. 1909); McCabe v. Hunter, 7 Mo. 365; Welsh v. Anderson, 28 Mo. 293; Donaldson v. Allen, 213 Mo. 293. (2) Where the law creates a life estate at the termination of which the land is directed to be sold, no title passes to the heirs, but the real estate is converted into money upon the death of the testator.' Compton v. McMahan, 19 Mo. App. 501; Morris v. Stevenson, 128 Mo. App. 338; Eneberg v. Garter, 98 Mo. 647; In re Obannon, 142 Mo. App. 268. (3) Where a will creates a life estate and directs that the same be sold at the death of the life tenant, and names the life tenant as executrix, then the land should be sold by an administrator, with the will annexed. R. S. 1899, sec. 137 (now sec. 141, R. S. 19091); Dilworth v. Rice, 48 Mo. 336; Francisco v, Wingfield, 161 Mo. 542. (4) Land cannot be partitioned in violation of the terms of a will. The will in the present ease directed the sale of the land, and partition would violate that provision. E. S. 1899,. sec. 4373 (E. S. 1909, sec. 2559), Cubbage v. Franklin, 62 Mo. 364; Stevens v. De La Vaulx, 166 Mo. 20; Sikemeyer v. Calvin, 124 Mo. 367; McDonald v. 0 ’Harra, 144 N. T. 566; Stewart v. Jones, 219 Mo. 614. (5) The averments of the petition and the findings in the interlocutory decree are not supported by the evidence, but are inconsistent therewith. The plaintiff cannot sue on one theory and recover on another. Kennedy v. Daniels, 20 Mo. 104; Utassy v. Giedinghagen, 132 Mo. 53, 60; E. E. Co. v.,Hotel Co., 202 Mo. 604; County v. Bank, 208 Mo. 225; Bank v. Eice, 143 Cal. 265; Mellen v. Mellen, 139 N. T. 221; "Wayne v. Fonts, 108 Tenn. 158; 22 Ency. PI. & Pr., p. 602. (6) The court committed error in receiving in evidence the deeds of trust offered by plaintiffs, also the transcript of judgments against defendant, and the affidavits of witnesses. The deeds of trust and judgments were immaterial and irrelevant for any purpose, and the affidavits were plainly incompetent.

      Sandusky & Sandusky for respondents.
    (1) The will in this case gave the widow a life estate in the ninety acres, and then says, “At her death to be sold and equally divided between my three sons, namely, William W., Charles P. and Lewis H. Nall, share and share alike.” No one is named to make the sale. Where was the fee in remainder? The legal title in fee in remainder was. in the three sons by descent; the equitable title in fee in remainder was in them under the will, as the absolute and exclusive owners of the proceeds, in the event óf sale. The three sons, therefore, owned this land, subject to their mother’s life estate, and subject to the power of sale. Eeed v. Underhill, 32 Barb. 113; Gest v. Flock, 2 N. J. Eq. 108; Eneberg v. Carter, 98 Mo. 647; Williams v. Lob-ban, 206 Mo. 390. (2) Under this will the equitable or constructive conversion occurred, if at all, at the widow’s death. Before actual conversion, by sale, the interest of the sons, and of each of them, was subject to judgment liens, or to mortgage, or to voluntary conveyance. If the title and interest of all were transferred, a reconversion would take place, arid the sale could be dispensed with: if only one conveyed, it would be an election binding on him, but subject to the power of sale, and his grantee, in the event of sale, would stand in his shoes and receive his share of the proceeds. Eneberg v. Carter, 98- Mo. 647; Simonds v. Harris, 92 Ind. 505; Koons v. Mellett, 121 Ind. 585; Sayles v. Bert, 140 N. Y. 376; Horst v. Dagne, 34 Ohio St. 371; G-est v. Flock, 2 N. J. Eq. 108 ; Bank v. Rice, 76 Pac. 1020; Reed v. Underhill, 12 Barb. 113; Mandlebaum v. McDonell, 29 Mich. 78; Brumfield v. Drook, 101 Ind. 196; Railroad v. Morgan, 162 Ind. 381; Huber v. Donahue, 49 N. J. Eq. 125; Prentice v. Jansen, 79 N. Y. 485; Bowen v. Swander, 121 Ind. 164; Barnard v. Keathly, 230 Mo. 209; Williams v. Lobban, 206 Mo. 399; Comer v. Light, 94 N. E. (Ind.) 325.. (3) In this case each of the three sons had executed a mortgage upon his “undivided one-third interest” in this land, and the mortgagees are parties to this suit, asking the enforcement of their liens. This was an election by all. Two sons sue in partition, alleging an ownership in themselves of two-thirds undivided, and in .appellant of one-third undivided, subject to their several mortgage debts due to the mortgagee defendants, and appellant files answer admitting these allegations, and upon these pleadings judgment is rendered for partition and no objection made or exception saved. This was again an election by all. These two elections are strengthened by the facts that appellant-had rented this land two years, that no application had been made for letters de bonis non, though the life tenant had been dead three years, and that, when this suit was filed, appellant employed attorneys to hold for him his interest in this land .as land, and to avoid a sale. (4) The words “grant, bargain and sell” in a mortgage carry the statutory covenants, one of which is “that the grantor was, at the time of the execution of such conveyance, seized of an indefeasible estate in fee simple in the real estate thereby granted,” and “for further assurances.” R. S. 1909', sec. 2793; Cockrell v. Bane, 94 Mo. 444; Boyd v. Iiaseltine, 110 Mo. 207; Joy v. Yancey, 129 Mo. 5091. And the mortgagor is precluded from saying he had no estate in the mortgaged land. Jones v. Reese, 65 Ala. .134; Clark v. Baker, 14 Cal. 612; Bailey v. Trustees, ,12 Mo. 174; Layson v. Cooper, 174 Mo. 221. (5) A sale by the parties, or in partition, is not in contravention of the will, but in harmony with it. Barnard v. Keathley, 230 Mo. 228; Spratt v. Lawson, 176 Mo. 182; Green v. Titman, 124 Mo. 372; Gest v. Flock, 2 N. J. Eq. 108; Prentice v. Jansen, 79 N. Y. 485; Mandlebaum v. Mc-Donell, 29 Mich. 78; Bank v. Rice, 76 Pac. 1020; Reed v. Underhill, 12 Barb. 113; Greenland v. Wadell, 116 N. Y. 246. (6) The motion to set aside the interlocutory judgment and permit appellant to amend his answer and make new issues was‘addressed to the discretion of the court, and the higher court “will not interfere unless it is manifest that the discretion has been arbitrarily and unjustly exercised.” Ensworth v. Rarton, 67 Mo. 622; Harrison v. Hastings, 28 Mo. 346; Mfg. Co v. Givens, 3¡5 Mo. App. 602; Greene v. Gallagher, 35 Mo. 226 ; Ferguson v. Railroad, 35 Mo. 452; Joyce v. Growney, 154 Mo. 263; Carter v. Dilley, 167 Mo. 571; Prehm v. Porter, 165' Mo. 115; Clark v. Transfer Co., 127 Mo. 269. (7) No term bill of exceptions was filed at the November term, 1908, when the interlocutory judgment was rendered; the record proper, including said interlocutory judgment, is regular, and, upon said record proper, the questions of conversion and reconversion do not arise; at the February term, 1909, the appellant sought, by filing his motion to set aside the interlocutory judgment and for leave to amend his answer, and by offering in evidence the will on said motion, to raise questions of evidence and pleading and law which should have been raised by answer and evidence at the November term, and should have then been saved by a term bill of exceptions. Reineman v. Larkin, 222 Mo. 156; Richardson v. Association, 156 Mo. 165; Blanchard v. Dorman, 236 Mo. 436; Simpson v. Scroggins, 182 Mo. 561. (8) The overruling of said motion to set. aside the interlocutory judgment and for leave to amend answer cuts out the question of. conversion and reconversion, and of the proper pleading in such case, as the evidence and exceptions saved at the February term on this motion cannot relate back to the November term, 1908, as if then saved; and upon the record proper these questions cannot and do not arise.
   GRAVES’, P. J.

Action in partition. In 1904 William H. Nall departed this life in Olay county, Missouri, seized and possessed of the land involved in this controversy. He left a will, the material portions of which are:

“3rd. I will and devise all my real estate to my wife during her natural life, and at her death to be sold and equally divided between my three sons, namely, William W.,. Charles P., and Lewis H. Nall, share and share alike.

“4th. My daughter Fannie, now intermarried with Edward Bowring, I have, by advancement given to her her full share of my estate, in real and personal property.”

Some dates and data become material to determine the ultimate question in the case. The widow, Ester A. Nall, was made executrix of the will, but died in September, 1905, intestate. In William H. Nall’s estate final settlement was made February 15, 1907, and final settlement in her estate was made October 30, 1907. May 23rd, 1908, this suit was filed, and in the petition it was alleged that the plaintiffs owned two-thirds of the land (one-third each) and the appellant, Charles P. Nall, the other third, all in fee. This petition did not set out the will of William H. Nall, but did aver that by such will the land was left to the mother for life, with remainder in fee in the plaintiffs and Charles P. Nall. It alleged the death of the widow, and pleaded certain incumbrances placed upon the lands by the plaintiffs and Charles P. Nall. It also alleged certain rents to be due from the said Charles P. Nall, and prayed for an accounting thereof and for the partition and sale of the lands involved. To this petition the appellant here, one of the defendants below, filed answer as follows:

Now comes defendant Charles P. Nall, and for his separate answer to the allegations in plaintiffs’ petition, admits the truth of the same, and aslts the court to protect his rights and interest in the real estate therein described. Simrall & Simp,all,

Attorneys for defendant Charles P. Nall.

November 11,1908, an interlocutory judgment was entered in accordance with the prayer of the petition. No exceptions were saved to anything done at the November term of court. Under this judgment the land was advertised to be sold at the February term of the court, or on March 22, 1909. March 12, 1909, at the February term aforesaid, appellant, by different counsel, filed his motion in the circuit court asking that he be permitted to amend his answer so as to aver that neither the plaintiffs nor this appellant had any interest in the land in dispute. He avers in the motion that the answer theretofore filed was by reason of a mutual misunderstanding of himself and his counsel as to his right and interest in the land. Upon this motion evidence was heard, and thereafter the same was overruled, and the land sold, deed made, and order of distribution made. The exceptions upon this hearing were preserved by bill and they are the only exceptions here for review. From the evidence introduced upon this motion, it appears that the appellant and his then counsel did in fact examine the will, but as they aver, only with the idea of determining whether the appellant here, defendant there, could have his interest in the land set out in hind. It was further shown that Charles P. Nall had mortgaged his “undivided one-third interest” in said land for $1500 on March 25,1907, more than a year prior to the partition suit. This deed was in force at the time the suit was filed and at the time of judgment. The plaintiffs had likewise encumbered their interest prior to the trial. These mortgages were all introduced in evidence on this motion. There was likewise introduced three other mortgages or deeds of trust made before the suit by appellant, in each of which he undertook to convey his undivided one-third interest in this land. These had been satisfied of record. There was also introduced in evidence a deed of trust for $702 executed by appellant after the interlocutory decree, in which said deed he undertook to convey his “undivided one-third interest’'’ in'this land. This sufficiently states the case.

I. There are two reasons for an affirmance of this judgment. The first goes to the condition of the record. There is no bill of exceptions as to matters occurring prior to the interlocutory decree. The petition avers that the respondents and appellant owned the land by virtue of the -will of their father. The terms of the will are not pleaded. What evidence there might have been introduced on the hearing of the case does not appear. The interlocutory decree recites that evidence was heard and argument of counsel made. If it be granted that the will, afterward preserved in the bill of exceptions on the motion, was in fact in evidence at the trial of the issues, and if it be further granted that under the terms of the will the land was converted into money upon the death of the testator (a debatable question under the terms of the will) yet there might have been ample evidence before the court to show that the parties at the proper time had elected to reconvert, and if so they would then in fact have held the land as land, but under and by virtue .of the will of their father. It is to be presumed that the trial court in the matter of this judgment proceeded by right and not by wrong, and in the absence of a bill of exceptions preserving the evidence, it will be presumed that the court had evidence upon which to base its findings and judgment. This is elementary. Now in this condition of things, we cannot say that the trial court abused its discretion in refusing to permit the appellant to amend his answer.

The evidence heard at the trial and within the knowledge of the trial court might .have been such that it would be a strain of his discretion to have permitted the amendment as suggested in appellant’s motion for leave to amend. The exact condition the trial court knew, and we are precluded from knowing, because of the absence of a term bill of exceptions preserving the evidence.

But we need not rest the case here, and will take up the merits as now alleged by appellant.

II. Appellant urges that under the will of the father neither the respondents nor the appellant had any interest in the lands in controversy, and for that reason the motion to set aside the interlocutory judgment should have been sustained, and the final judgment is erroneous. This contention proceeds upon the theory that the father’s will had the effect of converting this land into money so far .as the respondents and appellant are concerned. To our minds we need not discuss the somewhat involved question- as to whether or not this will operated as appellant contends. We may for the disposition of this case concede that the effect of the will, so far as respondents and appellant are concerned, was to convert this land into money at the date of the testators death, yet it might have been real estate as to the same parties at the date of the institution of this suit. Under the facts shown and the governing law we think the respondents and appellant owned this property as land and not as money when this suit was brought and when it was tried. The doctrine of reconversion is as thoroughly grounded in the law as is the doctrine of conversion. In other words that whilst the terms of a will may in legal effect convert land into money, yet subsequent acts of the beneficiaries may reconvert the subject-matter into land.4 The doctrine of reconversion seems to be conceded in a way by appellant’s counsel, but they say that the facts shown upon this motion do not show a re-conversion, and this is the one vital question upon this branch of the ease.

To our minds it is immaterial for what we have to say under this point whether the equitable conversion of the land into money is held to have occurred at the death of the testator and thereby upon the incoming of the will, or at the' death of the life tenant. It is clear no actual conversion could have taken place until the falling-in of the life estate. Up to the actual sale we have only a constructive conversion.

In 9 Cyc., p. 853, we have a concise definition of the term reconversion, thus: “Reconversion is that imaginary process by which a prior constructive conversion is annulled and the converted property restored in contemplation of law to its^original state.”

' This imaginary process is one which takes place upon the election of the beneficiary under the instrument creating the constructive or equitable conversion. This doctrine of election is concisely stated by the same authority and on the same page above named, in this language: “In the application of the doctrine of equitable conversion, it is a well-settled rule that .if money is directed by a will or other instrument to be laid out in land, or land is directed to be turned into money, the party entitled to the beneficial interest may in either ease, if he elects so to do, cause a reconversion of such property and take it in its original state.”

Both the doctrine of “equitable conversion” and the doctrine of “reconversion by election” being thoroughly recognized in the law, the only questions left in this case are, (1) When should the election to reconvert take place, and (2) What evidence is sufficient to show such election to reconvert.

The rule as to the time of the election to reconvert is given in 9 Cyc., p. 857 in this language: 11 The right of election must be exercised before the property is actually converted, and until it be actually exercised the property bears the same character and remains subject to the same rules of transmission to representatives as if conversion were actually made.”

It will be seen that under this rule the beneficiaries may elect to reconvert, at any time, before the actual conversion takes place. The word “actual” is used to distinguish it from a mere constructive conversion. The constructive conversion is the one made by the written instrument; the actual conversion, in the case of lands, is the one made by the sale. Under the rule, therefore, the beneficiaries may elect to hold the land rather than the proceeds of the land, at any time before the sale, or actual conversion. And this would be true whether we fix the date of the constructive conversion at the day of the testator’s death or at the date of the life tenant’s death. The exact date of the constructive conversion is not material to the determination of this case.

Upon the evidence adduced upon this motion-no actual conversion had ever taken place. In other words the land had never been sold under the provisions of the will. Was there evidence of an election to reconvert? We think so. Prior to the suit each beneficiary under the will had given a deed of trust upon his respective “undivided one-third interest” in this land. The giving of these instruments prior to the actual conversion was a clear election to reconvert. “So the giving of a mortgage by a person entitled to the proceeds of the sale of land is a clear election upon his part to take land.” [9 Cyc. 855.]

In Gest v. Flock et al., 2 N. J. Eq. 115, the learned chancellor said: “There is another view of this case equally fatal to the complainant’s contentions. Where a sale is directed to be made of lands, and the same person is entitled to take the lands that would take the money in case of a sale, and the party elects to take lands, a court of equity will not disturb that election, or compel a sale. [Osgood v. Franklin, 2 John. Ch. Rep. 21; Amler v. Amler, 3 Vesey, 583.] The giving of the mortgage by Albert, was a clear election on his part to take land, and upon no principle can that election be now disturbed.”

In that case the widow held a life estate provided she did not marry. The son Albert was one of the beneficiaries under the will of the father, which will directed the sale of the land by the administrators. No sale was made, and after Albert, the son, became of age, he and his mother executed a mortgage to the defendant Flock. Some years after this the said Albert made an assignment by deed to the plaintiff Gest, “of all that part, share, proportion and dividend of the personal and real estate of the said Hendrick Schenck, which theretofore became due, or which might thereafter descend or become due and payable to the said Albert.” Flock foreclosed his mortgage. Plaintiff’s bill sought to compel the executors to sell the land and to pay Albert’s share to complainant. The -will is much like the will at bar. It was under these facts that the New Jersey court spoke as above indicated.

But in the case at bar we find that the appellant gave not only one, but several deeds of trust on his interest in this land prior to the suit for partition. The respondents had likewise elected to reconvert by giving mortgages or deeds of trust on their parts. So all of the beneficiaries had elected to reconvert before the filing of the suit. Not only so, but the appellant here gave a further mortgage on his part even after the interlocutory decree.

But góing a step further. By the petition and answer in this case there was an election by all the beneficiaries to reconvert. By the petition two of the beneficiaries under the will, entitled to the proceeds of the land, claimed the land rather than the proceeds. This was a solemn election upon their part. In answer to that petition this appellant made his election just as solemn. The petition pleaded the appellant’s prior election by the deed of trust alleged to have been given by appellant. This deed of trust appellant did not deny. From it all it must be held' that all the beneficiaries under the will had elected to reconvert, and that at the institution of the suit and by the institution of the partition suit, the parties held this land as land, and not as money. Not only so, but upon the face of the pleadings there appeared to the trial court the evidence of reconversion.

Other intricate and interesting questions need not be discussed. If there is any substance in the doctrine of reconversion, the judgment nisi is correct. Without intervening matters which we may preclude, the right to elect to reconvert exists to the date of an actual conversion by sale. Under the facts of this case there was a reconversion, and the beneficiaries under the will held the property as land, and not as money. The trial court committed no error in refusing to further open up the case upon the motion of appellant, and its judgment on the merits was right. Let the judgment nisi stand affirmed.

All concur.