author: VALLIANT, P. J.

text:
    CURTIS, Appellant, v. SEXTON.
    Division One,
    February 22, 1907.
    1. CONTRACT: Purchase of Land: Agreement to Repurchase: Partners: No Deed: Fault of Sellers: Pleading: Cause of Action. Where defendant’s partner in trade, dealing in real estate, entered into contract with plaintiff by which plaintiff agreed to purchase land from the partner, and by a separate contract of even date written by defendant and signed by him in the firm name the partners agreed to repurchase the land on a certain date for the agreed purchase price and ten per cent interest, and plaintiff made the payments according to the contract, defendant, when sued for a return of the money and interest, cannot defeat the suit by a showing that no deed was ever given to plaintiff, for if none wa§, it was the fault of defendant and his partner. Nor does the petition, which sets out the contracts in haec verba, fail to state a cause of action because it does not show that a deed of the Mnd called for by the contract was given to plaintiff.
    2. -:--: -: Performance: Failure to Pay Last Installment. Where the seller agreed to repurchase at a named price on the day the last installment of the purchase price the buyer agreed to pay was due, a failure by the buyer, who had already demanded a repurchase by the seller, to pay that installment, will not defeat his right to recover for a breach of the contract.
    3. -: -: -: -: Payment of Mortgage. By the contract of purchase five installments of the purchase money were to be applied to the payment of an existing incumbrance, under which the land was subsequently sold. EeU, that it was no fault of plaintiff, who paid the installments to the .defendant seller, in a suit for damages for a breach of his contract to repurchase, that the installments were not applied on the incumbrance.
    4. -: -: -: Inability to Reconvey. Where, in plaintiff’s suit for damages for a breach of a contract to repurchase land sold him by defendant, plaintiff’s inability to reeonvey, because of a foreclosure of an incumbrance existing on the land at the time of the purchase, made by defendant and his associates, is the fault of defendant, plaintiff cannot be defeated because of his inability to reconvey.

      5. -: -: --: Limitations: Ten Years. Where plaintiff’s suit is founded on a breach of an express written agreement to pay to him the amounts he paid on account of his purchase of land and interest thereon, and the only necessity for going beyond the writing to make out his case is, to show the performance of the contract to purchase on his part and defendant’s breach of the contract to repurchase, the action is not barred by the five-year Statute of Limitation, but only the ten-year section of the statute applies.
    Appeal from Jackson Circuit Court. — Row. W. B. Teasdale, Judge.
    Reversed and remanded.

      R. F. Porter for appellant.
    (1) Plaintiff entered into a binding valid contract with Bracking wbo was acting for and on behalf of the firm of Sexton & Bracking in signing said contract, the firm of Sexton & Bracking being the real parties in interest, and showed his final acceptance of said contract by making the cash payment provided in said contract when satisfied with title, etc., and this was a purchase of the property in compliance with the requirements in that respect of the contract sued on. Meyers v. Schuchmann, 182 Mo. 159; Greff et v. Will man, 114 Mo. 106; Gwinnup v. Sibert, 106 Mo. App. 709; Perrin v. Kimberlin, 110 Mo. App. 66; Hayden v. Grillo, 35 Mo. App. 647; Love v. Owens, 31 Mo. App: 501; Christianson v. Wooley, 41 Mo. App. 53; Strude v. Schaff, 36 Mo. App. 15; Lumber Co. v. Clark, 172 M'o. 588; Rice v. Mayo, 107 Mass. 552; Ward v. Cobb, 148 Mass. 518; Roche v. Smith, 176 Mass. 595; Knapp v. Wallace, 41 N. Y. 477; Dayton v. Nell, 43 Minn. 246; Eaton v. Richeri, 83 Cal. 185; Bradish v. Yocum, 130 111. 386; Brewer v. Herbert, 30 Md. 301; Loomis v. Davenport, 17 Fed. 301; Brisco v. Minah, 82 Fed. 952; Railroad v. Branch, 59 Ala. 152; Lunley v. Robinson, 26 Mo. 364; Harvey v. Morris, 63 Mo. 475; Brown v. Barrett, 75 Mo'. 275; Wilson v. Masón, 158 111. 304; Springer v. Orr, 82 111. App. 558; Burns v. Clipliant, 78 Iowa 456; Potvin v. Curran, 13 Neb. 306; Conlding v. Krakner, 70 Texas 735; Dunn v. Yadish, 10 Okla. 388; Hippie v. Land, 189 Pa. St. 472. (2) Tbe contract of sale, being signed by Bracking for tbe firm, they being tbe real parties in interest, inured to tbeir benefit and was sufficient consideration for tbe contract of the firm. Besides, that contract was under seal and imports a consideration. Randolph v. Wheeler, 182 Mo. 145. (3) Even though it be held that the purchase was not made until a deed was made, the deed made to plaintiff conveying him a one-eighth interest would satisfy this requirement, as the conveyance of a greater interest includes the less, and the re-conveyance of the one-sixteenth to their wives subject to incumbrances left the title to the one-sixteenth in him and accomplished practically the same results as far as the title was concerned as if a straight conveyance of one-sixteenth the interest had been made, and the court will look through the shadow to the substance and construe it as a conveyance of a one-sixteenth interest. Besides, Sexton and Bracking were charged with making the conveyance to carry out .the contract, and they will not be allowed to take advantage of their own wrong to defeat the contract. Brown v. Barrett, 75 Mo. 275; Yiaux v. Old South Church, 133 Mass. 1. (4) The dissolution of the partnership did not affect existing obligations, and notice, tender or demand on one member of the firm would be binding on both, and Bracking’s letters in reference to such in connection with this contract are competent evidence against Sexton, the other partner. Abbott, Trial Practice, p. 272; I Bates on Partnership, sec. 707; Cady v. Shepherd, II Pick. 400; Bank v. Rilly, 52 Mo. 207; Bank v. Atherman, 91 Mo. 191; Coudrey v. G-ilham,, 60 Mo. 92; White v. Kemey, 2 La. Ann. 639; Hubbard v. Matthews, 54 N. Y, 43; Coster v. Thomason, 19 Ala. 717; Mann v. Locke, 11 N. H. 246. (5) The covenants contained in the- contracts were independent and not dependent, and even if it should be held that defendant did not make the last payment called for in his contract in compliance with its terms this would not prevent his recovery, as they had their action to enforce it or could set it up as .a counterclaim. Overton v. Curd, 8 Mo. 420; Thompson v. Crutcher, 26 Mo. 319; Turner v. Melber, 59 Mo. 536; Mockwood v. Railroad, 65 Mo. 233; Smith v, Crews, 2 Mo. App. 269; Pfeninghausen v. Sherer, 65 Mo. App. 348; Burris v. Shrewsberry, 55 Mo. App. 381; Seed Co. v. Walt, 94 Mo. App. 76. (6) Time is not the essence of a contract for real estate in the absence of any express provision, as is the case in this contract, and a tender or offer to convey within a reasonable time is sufficient. Bales v. Roberts, 189 Mo. 49; Marshall v. Waas, 8 Fed. 854. (7) Where it is obvious from the statements of the other party that he will not fulfill his contract, as in this case, there is no necessity for a tender, although a tender was made in this case. Mastin v. Crimes, 88 Mo. 478 ; Walker v. Cooper, 97 Mo. App. 441.

      A. F. Evcms for respondent.
    (1) The petition does not state a cause of action. It does not allege that plaintiff ever, at any time, had any title to the land. Davis v. Watson, 89' Mo. App. 15; Birge v. Bock, 24 Mo. App. 330. (2) It appears on the face of the petition that plaintiff did not have title to any interest in the land, and that he proposed to convey it as of October 6, 1890, by special warranty deed. The contract between Bracking and plaintiff stipulated: “If, upon examination, it is found that the seller has a good title, in fee, to said property, he is to execute and deliver to the buyer, or his order, a general warranty deed thereto, properly executed.” The contract did not pass the title to Curtis and the petition does not allege that the deed was ever delivered to Curtis. Birge v. Bock, 44 Mo. App. 69; Herryford v. Turner, 67 Mo. 296; Davis v. Watson, 89 Mo. App. 15; Carter v. Alexander, 71 Mo. 585. Curtis’s failure to pay the encumbrance which he assumed was in legal effect the same as if he had placed the encumbrance on the land, and then offered to convey subject to it, instead of satisfying it. Davis v. Watson, supra. (3) It appeared on the face of the petition that plaintiff’s remedy, if any he had, was by suit in equity for specific performance of the contracts, and it clearly appeared on the face of the petition, and from the evidence, that he was not entitled to a decree for specific performance. Tenney v. Turner, 111 Mo. App. 597; Maloney v. Eeal Estate B. & L. Assn., 57 Mo. App. 384. (4) It appeared on the face of the petition, and was shown conclusively by the evidence, that plaintiff had not performed the contract on his part, and that he committed several breaches of it before his right matured to ask defendant to perform. He assumed and agreed to pay one-sixteenth of the indebtedness secured by the deeds of trust on Madison Square, whereby those debts became his; he, the principal debtor, and his vendor his surety. Bank v. Pettit, 85 Mo. App. 499; Heim v. Vogel, 69 Mo. 529; Fitzgerald v. Barker, 85 Mo. 13; Winn v. Inv. Co., 125 Mo. 528. He failed to pay those debts, and because of such failure, had lost all title to the land. MacLeod v. Snider, 110 Mo. 298; Wellman, Admr., v. Dismukes, 42.Mo. 101; Meyer v. Christopher, 176 Mo. 580; Sick v. Life Ins. Co., 79 Mo. App. 609; Billups v. Daggs, 38 Mo. App. 367; Craycroft v. Walker & Co., 26 Mo. App. 469; Cress v. Blodgett, 64 Mo. 449. (5) Time is always the essence of a unilateral contract. It was conclusively shown by the evidence that Curtis had not performed, or offered to perform, on October 6,1890, the day fixed by the contract signed by Sexton & Bracking, for its performance, and by reason thereof lost the right to thereafter claim the benefit of it. Glass v. Rowe, 103 Mo. 513; Hollmann v. Conlon, 143 Mo. 369; Cockrell v. Bopp, 106 • Mo. App. 555. Under the express provisions of the deed of trust under which Curtis permitted the land to be sold, he had the right to demand and receive a release of his one-sixteenth interest, and to select the lots so to be released, by paying $1,000 on account of the encumbrance. If he had complied with his contract, he could have had no diffiuclty in making out a good title October 6, 1890. To permit him to recover in this case would be to allow him to profit by his own wrong. (6) It clearly appeared that the contracts sued on do not constitute a writing for the payment of money or property, within the meaning of section 4272, Revised Statutes 1899; that plaintiff’s cause of action, if any he had, accrued October 6, 1890, and was barred by the five-year Statute of Limitations. R. S. 1889', sec. 4273; Finney v. Brant, 19 Mo. 42; Whisler v. Bragg, 31 Mo. 124; Kau’z v. Great Council of I. O. of R. M., 13 Mo. App. 341; Garesehe v. Chouteau, 37 Mo. 413; Brady v. St. Joseph, 84 Mo. App. 399; Menefee v. Arnold, 51 Mo. 536.
   VALLIANT, P. J.

Plaintiff sues to recover money which he claims to be due him under a written contract between himself and a firm of which the defendant was a member. Plaintiff does not plead the contract by its legal effect but sets it out in haec verba and alleges that defendant has broken it.

From the documents copied into the petition we gather that the contract which plaintiff attempted to plead is this: January 5, 1888, plaintiff entered into a written contract with one Bracking whereby he agreed to purchase from Bracking an undivided one-sixteenth interest in a certain tract of land called Madison Square in Kansas City, for the sum of $2,727.35, to be paid $100 down, $900 when the deed was delivered, and $1,727.35 in five installments on dates specified, the latter to be applied to the payment of one-sixteenth of an existing incumbrance on the whole tract. There were other details specified in the contract which for the purpose of this appeal are not necessary to mention. It was specified in the contract that it was made subject to a written contract of even date therewith between the plaintiff and the firm of Sexton & Bracking, which firm was composed of the defendant and the Bracking first above named. By that contract which is also copied into the petition, Sexton and Bracking agreed, in consideration of the plaintiff having made the purchase of the one-sixteenth interest in the land from them, that they would purchase it back from him October 6, 1890, if he should so desire and request, at the price he paid for the same, together with interest at ten per cent per annum from the date of the purchase.

The. petition avers that plaintiff performed his part of the contract, made all the payments required, amounting to $2,878.35, plus $131.28 paid for taxes; that these payments were made to Sexton & Bracking; that prior to his contract of purchase of the one-sixteenth interest there was an incumbrance on the whole tract in the shape of a deed of trust to secure an indebtedness of Sexton & Bracking and plaintiff assumed to pay one-sixteenth of that debt and did pay the money for that purpose to Sexton & Bracking to be by them so applied ; that prior to October 6, 1890', plaintiff notified Sexton & Bracking that he desired them to repurchase the interest in the land and on October 6, 1890, and several times thereafter, he requested them to repurchase the land as they agreed to do and offered to make them a deed, but they refused to purchase and refused to pay the plaintiff the money he had paid and interest as per agreement, or any part thereof; that afterwards,- on January 6, 1891, the ahove-mentioned deed of trust was foreclosed and plaintiff’s interest in the land was sold with the rest of it and passed to a stranger at the trustee’s sale.

The prayer of the petition is for judgment for the amount of the payments made which, with interest thereon as stipulated in the contract, amounted to over $4,500.

Defendant filed an answer containing, first, a plea of the five-year Statute of Limitations; second, a general denial; third, that the purchase of the land by plaintiff from Bracking was a matter entirely between those two with which defendant Sexton had nothing to do, that defendant’s attitude was that of guarantor, that the contract of purchase between plaintiff and Bracking on which defendant’s contract of guaranty' was founded, was another contract between those parties, not the one set out in the petition, and it was never consummated, and, fourth, that defendant has fully complied with his contract.

The reply reiterated that defendant was interested in the land which Bracking agreed to sell to plaintiff and the transaction was in behalf of the firm of Sexton & Bracking and plaintiff was induced to make the purchase by the agreement to repurchase.

"When the trial began the defendant objected to any evidence being received on the part of the plaintiff for several reasons, which, taken together, amounted to the assertion that the petition showed on its face that the plaintiff had no cause of action. The objection was overruled and exception reserved.

The testimony in behalf of plaintiff was to the. effect as follows:

Defendant Sexton, and Bracking, were partners in trade dealing in real estate in Kansas City; the plaintiff resided in Cincinnati. He had had other business transactions with this firm and trusted the management of this transaction to them. The deeds in evidence showed the title to the tract called Madison Square as follows: October 6,1887, one Rhodes and wife by deed conveyed the land to Ophelia Spofford, Samuel E. Sexton, the defendant, and Frank B. Bracking, in the proportion of an undivided half to Spofford, an undivided fourth to Sexton, and an undivided fourth to Bracking. On the same day those three executed a deed of trust on the land to secure their three notes for $5,439 each, due in one, two and three years.

November 3, 1887, Sexton conveyed a one-fourth interest to one Chapman. March 19, 18-88, Bracking conveyed a one-eighth interest to one Speasmaker. August 12, 1888, Bracking conveyed a one-eighth interest to plaintiff Curtis. June 13, 1889, Curtis conveyed a one thirty-second interest to Sexton’s wife, and on same day a one thirty-second interest to Bracking ’s wife, leaving one-sixteenth in himself.

January 6, 1891, the whole tract was sold under the deed of trust to a stranger.

In the deed from Bracking to plaintiff conveying the one-eighth interest there was a clause to the effect that the grantee assumed the payment of one-eighth of the incumbrance. The plaintiff testified that he knew nothing of that deed until several months after it had been made and put on the record, that it was never delivered to him and the first he knew of it was when Sexton told him about it several months after, it had been recorded, that he then asked Sexton why it was done; Sexton told him that Bracking would explain it, and when he went to Bracking for explanation the latter told him they did it for the purpose of having plaintiff convey a one thirty-second interest to the wife of each of them, and that he did so.

Plaintiff made all the payments called for by his contract of purchase except the last installment due October 6,1890, which was the date on which Sexton & Bracking had agreed to repurchase the one-sixteenth interest, and as plaintiff had previous to that date and on that date notified them that he desired them to so repurchase and requested them to do so and they refused, he just credited that payment against the amount he estimated to he due him from them.

It appeared in the evidence from a part of the deposition of defendant that plaintiff read in evidence, that in January, 1888, shortly after the execution of the two contracts above named, the partnership was dissolved, Sexton went into the building business, and Bracking continued in the real estate business, but plaintiff testified that if there was ever any dissolution of. the firm of Sexton & Bracking he had no notice of it and did not know it, although he did know that Sexton was engaged in the building business.

All the payments made by plaintiff, the $100', the $900, and the installments applicable to the incumbrance, were by check payable to Sexton & Bracking and were collected by Sexton, except the one paid October fi, 1889, in reference to which the plaintiff testified that he paid it to Bracking at the request of Sexton, and that Bracking instead of applying it on the incumbrance converted it to his own use. There was a clause in the deed of trust under which plaintiff could have paid one-sixteenth of the incumbrance and obtained a release of his interest, but instead of doing so in person he sent the money to Sexton & Bracking to be so applied, and if it was diverted they did it.

Plaintiff testified that defendant told him that the interest held by Bracking was so held in common for both, that their interests were identical.

At the close of plaintiff’s evidence the court at the request of the defendant gave an instruction to the effect that the plaintiff was not entitled to recover, whereupon plaintiff took a nonsuit with leave, and his motion to set the same aside having been overruled, he brings the cause here for review.

Defendant contends that the petition does not state a cause of action.

The supposed defects in the petition are that it does not show that plaintiff had acquired the title to the land which his contract with Bracking called for, no deed for that interest having been given him, and that it shows that he had not performed his part of the contract.

The petition does state, and the evidence tends to prove, that the title to this one-sixteenth interest vested in Bracking and was held by him for the benefit of himself and the defendant, that it was therefore under the control of defendant and his partner, that plaintiff paid the firm the price he agreed to pay and therefore if the title that ought to have been conveyed to plaintiff was not conveyed to him, defendant and his partner were responsible for the failure. The contract to repurchase was written and signed by defendant himself in the firm name; it starts out by referring to the contract of even date whereby plaintiff agreed to purchase from Bracking the one-sixteenth interest in question in these words: “In consideration of W. Espy Curtis purchasing from us one-sixteenth interest in Madison Square,’’ etc. “We guarantee and promise to purchase it back from him Oct. 6th, 1890,” etc. It is as express an acknowledgment that the transaction both ways was a firm transaction as could be. If after plaintiff had made the payments he agreed to make, the title was withheld by one of the firm, the defendant was in no condition to complain of that fact; if there was anything wrong it was his own and his partner’s wrong. The evidence shows that instead of making a deed to the plaintiff for one-sixteenth, Sexton and Bracking for their purpose and without the knowledge or consent of the plaintiff caused the deed to be made for one-eighth and so recorded, their purpose being to use the plaintiff as a medium for the transfer of title to their wives, and when this purpose was afterwards disclosed to the plaintiff he readily complied with their request and made the transfers without consideration. Defendant is in no condition, either in a court of law or a court of equity, to take any advantage of that variation in the contract. The transaction also bears out the claim of the plaintiff that his relations with the firm were such that he had implicit confidence in them.

As to the alleged failure of plaintiff to perform the contract on his part, the only payment he failed to make was the one due on the day the defendant’s obligation to repurchase was due, which obligation defendant had refused to perform. If defendant had been willing and able to perform his part of the obligation and if the last installment due that day had been paid to him he would have immediately returned it to the plaintiff with the other amounts and interests as agreed. There is therefore nothing in that point.

It is also contended that it appears on the face of the petition that the plaintiff failed to pay his part of the incumbrance on the land. The petition does show that in January, 1891, after defendant had refused to repurchase, the land was sold under the deed of trust, but it also shows that plaintiff had paid to defendant and his partner the several installments he agreed to pay for his part of the incumbrance; if therefore it was not so paid it was defendant’s fault. All of these installments except one were paid to Sexton himself and that one was paid to Bracking at Sexton’s request. How can defendant say that it was the plaintiff’s fault if those payments were not properly applied?

It is also said that the plaintiff’s remedy, if any, was in equity for a specific performance and that from the evidence he was not entitled to a specific performance. The proposition is that since the plaintiff' cannot now make a valid conveyance he is in no position to perform his part of the contract and therefore not entitled to demand performance on the part of defendant. But if the plaintiff’s testimony is true his inability to convey a valid title is the fault of defendant. The debt which the deed of trust was given to secure was the personal debt of defendant and his partner and Spofford, and whilst it is true plaintiff assumed to pay his one-sixteenth of the debt (less the interest), it is also true that he gave the money to defendant and his partner with which to make that payment. Before and on October 6, 1890, plaintiff asked defendant to prepare such a deed as he desired and offered to execute it, but defendant declined to do so, and afterwards before the sale plaintiff made a deed and tendered it to the defendant and his partner but they declined to receive it. The point is made that the deed tendered was one of special, not general, warranty. It was a warranty of the title against the claims of all persons claiming under or through the plaintiff and it amounted to the plaintiff’s giving back to the defendant and his partner the same title they had given him and which they had agreed to repurchase; if there was any diminution or depreciation of the same, it was the fault of defendant himself and his partner.

It is insisted that the evidence shows that the partnership of Sexton & Bracking was dissolved in January, 1888. There was evidence to that effect, but there was also evidence to the effect that plaintiff had no notice of the dissolution, and the evidence showed that all the payments which plaintiff made after January, 1888, were by check payable to Sexton & Bracking, were endorsed with the firm name by Sexton, and collected by him, except the one paid October 6th, 1889, and that was paid to Bracking at the request of Sexton. If that testimony is true it is no defense to the plaintiff’s suit for Sexton to say that the partnership was dissolved in January, 1888.

Defendant also contends that the cause of action falls within the five-year Statute of Limitations and is therefore barred. The argument is that when evidence beyond the written document must be resorted to in order to make out the case it is not an action upon “a writing . . , for the payment of money or property” within the meaning of section 4272, Revised Statutes 1899 (which is the ten-year limitation), and several cases are cited as supporting that argument, among them Menefee v. Arnold, 51 Mo. 536, Brady v. St. Joseph, 84 Mo. App. 399, and others. But that is a misconception of those cases; they only mean to say that where the promise or agreement to pay on which the action is based is not found in express terms or by fair implication in the writing, but the cause of action arises out of facts collateral to the instrument, it does not fall within the provision of that section of the Statute of Limitations.

In the case at bar there is an express agreement to pay the amounts the plaintiff paid on account of his purchase and interest thereon, the only necessity for going beyond the paper writing to make out the case is to show the performance of the contract on the part of the plaintiff and the breach on the part of the defendant. The action is founded on the written contract and falls within the ten-year section of the Statute of Limitations.

The court erred in giving the instruction in the nature of a demurrer to the evidence. The judgment is reversed and the cause remanded for a new trial.

All concur, except Woodson, J., not sitting.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    ACKERMAN, Administrator, v. GREEN, Appellant.
    Division One’
    February 22, 1907.
    1. ORDER TO REVEAL ASSETS: Referee: Notice. An order of the circuit court to a judgment debtor to appear before a referee and undergo an examination, under oath, touching his means and ability to satisfy the judgment, is not invalid because no prior notice was given to the judgment debtor that an application for such order would be made. The statute (secs. 3227 to 3232, E. S. 1899) does not require notice. The purpose of the order is to compel the debtor to uncover property subject to execution under the judgment already rendered.
    2. -: -: -: Statutes Constitutional. The fact that the' order of the court appointing a referee to examine the judgment debtor touching his property subject to execution, was ex parte and without notice, and the fact that said statutes make no provision for notice and contemplate an ex parte proceeding at the making of the order, do not render such statutes unconstitutional. The judgment debtor is not thereby deprived of his property or liberty without due process of law, or denied the equal protection of the laws, contrary to either the State or Federal constitution. He cannot be deprived of his, property by such order or proceeding. None of his property can he taken as a result thereof which was not already subject to execution.
    3. -: Sufficiency of Application. The application for an order on a judgment debtor to appear and submit to an examination touching his property subject to execution, need not state the grounds thereof with the particularity required in a bill in equity or a petition in an action at law. General statements that the judgment debtor has such property, that he has conveyed it for the purpose of defeating his creditors or to conceal it from execution, and pertinent reasons therefor, are sufficient.
    4. -: Affidavit. The affidavit of an administrator, made by him as such, stating that the things set forth in the application for the order are true according to his best knowledge and belief, is sufficient. 'It would not be sufficient if it stated upon his “information and belief.” The. statute uses the words “knowledge and belief.”
    6. -: Appeal. No appeal lies from the order of a circuit court directing a judgment debtor to appear and submit to an examination before a referee, touching his property subject to execution. The statute requires the proceeding to be summary, the proceeding does not affect his property rights, and the statute in reference to the proceeding is complete within itself and does not provide for an appeal.
    Appeal from St. Louis City Circuit Court. — Sow. Wariviclc Hough, Judge.
    Appeal dismissed.

      Klein & Hough and Kinealy <$> Kinealy for appellant.
    The statute authorizing this examination is unconstitutional because: (1) The defendant was entitled to be consulted on the appointment of a referee, and this was not done. State v. Barclay, 86 Mo. 58 ; R. S. 1899, secs. 699-705. Hence a denial to the defendant of right to be consulted on the appointment of a referee which is accorded to every other defendant in a case of reference, discriminates against the defendant debt- or and deprives him of the equal protection of the laws. (2) This is an ex parte proceeding before the referee. The referee may examine both parties, plaintiff and defendant, under the statute, merely opening with defendant. And counsel is not allowed to defendant nor can he examine witnesses in his own behalf. In this the act also discriminates against him. Carnishment proceedings may be instituted on the evidence heard before the referee, though it is based only on the testimony of the plaintiff in execution and this may be followed by imprisonment of the defendant, irrespective of any testimony given by him. In re Knapp, 144 Mo. 653. Hence, the law is unconstitutional. Bryant v. Bank, 6 Pac. 644. On the petition and affidavits filed, and in the absence of other proof, the order should not have been made. There was no jurisdiction to make it, because: (3) The affidavits and petition in absence of other proofs on the hearing are insufficient in this case to give the court jurisdiction to make the order for the examination of the debtor. Ackerman v. Oreen, 107 Mo. App. 349; In re Parrish, 28 App. Div. 24; In re Remington, 7 Wis. 643; Sackett v. Newton, 10 How. Pr. 560. (4) The petition and affidavits filed are insufficient to show that an execution was issued in good faith, and that the officer could not find any property out of which to justify it. Both these facts should appear. In re Remington, 7 Wis. 643; Hackney v. Arlington, 99' N. C. 112; State Bank of Ohio v. Oliver, 1 Disney 159. (5) The petition and affidavits are unsupported by other evidence and fail to show reasonable ground for belief that the debtor has property subject to execution. It states mere conclusions and belief without showing grounds of belief. This is. insufficient. Ackerman v. Oreen, 107 Mo. App. 341; Bank v. Clark, 52 App. Div. 601; Bank v. Wilson, 13 Hun 232; McKinley v. Snider, 116 Ind. 161; 21 Ency. PI. and Pr. 117 note 2, par. 2. (6) The affidavit should show reasonable ground of belief in the existence of property, choses in action, things of value unaffected by lien and incapable of levy, in order that the aid of the court “'may not be invoked for an idle purpose.” Hinsdale v. Sinclair, 83 N. C. 338. (7) The petition and proofs should have shown that defendant was a resident of the city of St. Louis.

      Dcmiel Dillon and B. L. Shackelford for respondent.
    (1) This statute has been in force many years in this State and its constitutionality has been recognized in many of the decisions of this court. In the two cases cited by appellant, viz., State ex rel. v. Barclay, 86 Mo. 55, and In re Frederick Knaup, 144 Mo. 653, this statute received very full consideration; but it did not occur to any one that it was unconstitutional. Similar statutes have existed for many years in nearly all the States, and no case is cited where any of them were held unconstitutional. (2) The second point made in appellant’s brief is that the petition and affidavits filed in this cause did not give the court jurisdiction to make the order of examination. This point was thoroughly discussed and passed upon in this very case by the St. Louis Court of Appeals, in Ackerman v. Green, 107 Mo. App. 341. There Mr. Green contended that the affidavit was insufficient, because made on information and belief instead of on knowledge and belief. The Court of Appeals held that our statute required that the affidavit be made to the best of the knowledge and belief of the affiant; and that an affidavit made to the best of information and belief of affiant was not sufficient. That court, however, did hold that the petition in this case was sufficient, if verified by affidavit made to the best knowledge and belief of affiant, and the case was remanded with leave. After the case had been returned to the circuit court, respondent made affidavit to the petition- in the form required by the statute and the decision of the Court of Appeals, and thereafter the circuit court made the order requiring defendant to undergo an examination, etc., as provided in the, statute. The petition and affidavit fully comply with the statute of this State. The petition not only states that the petitioner believes that the defendant has property subject to execution and that he has conveyed his property to defraud, hinder and delay his creditors, but states facts and circumstances calculated to make it appear to the court, and which did make it appear to the court, and which the St. Louis Court of Appeals said might convince the court that there was reasonable grounds to believe that defendant had property subject to execution or had conveyed his property with a design to defraud, hinder or delay his creditors. This is all our statute requires. (3) The whole purpose and scope of the statute shows that it was intended that the proceedings should he summary. There is nothing in the statute providing for an appeal, or that seems to contemplate an appeal. The statute is complete in itself, and as it makes no provision for an appeal, it is evident that the Legislature did not contemplate an appeal. Where a statute in relation to special proceedings is complete in itself and covers the entire subject, it is preclusive, and proceedings under it are governed solely by its provisions. Carter v. Lindell, 28 Mo. App. 316; Schwerer v. Christophel, 64 Mo. App. 81; Powell v. Camp, 60 Mo. 571.
   WOODSON, J.

This is an application which was filed by the respondent in the circuit court of the city of St. Louis, for an order thereof requiring appellant to undergo an examination, under oath, touching his ability and means to satisfy a judgment, which had theretofore been rendered against him in said court in favor of the respondent.

Prior to the filing of this application an execution had been issued on the judgment and had been returned nulla bona.

As the sufficiency of the application is questioned, as well as the affidavit thereto, it will be necessary for a correct understanding of the questions involved to set out both in full, which are as follows:

“Now comes Thomas F. Ackerman, administrator de bonis non of Alfred W. Fleming, deceased, and states to this court that on the 6th day of April, 1903, in the above-entitled cause of Thomas F. Ackerman, administrator de bonis non of Alfred W. Fleming, deceased, against Charles Green, he received a judgment against said Green for" the sum of $253,903.61 and costs of said cause; and that, on the 15th day of May, 1903, an execution was issued by the clerk of this court on said judgment against the property of said Green for said sum of $253,903.61 and costs, returnable to. the June term, 1903, of this court, and placed in the hands of the sheriff of the city of St. Louis, Missouri, for execution. And thereafter, viz., on June 1st, 1903, said sheriff returned said execution wholly unsatisfied.
“And your petitioner, Thos. F. Ackerman, further says that he believes that said Green has property subject to execution and that he has conveyed his property to defraud, hinder or delay his creditors. Tour petitioned further says that said Green a few years ago was the owner of a large amount of property, and had the reputation and standing of a very wealthy man. For a year or two last past, so far as petitioner knows or can ascertain, said Green had been engaged in no business, but he lives in a large, elegant and costly residence, to maintain which requires a large amount of money. And he seems to be well supplied with money, and in his dress, appearance and manner of living he appears and acts like a gentleman of large means. And your petitioner believes that said Green has property subject to execution and that he has conveyed his property to defraud, hinder or delay his creditors.
“Wherefore, your petitioner prays this court for an order requiring said Green to appear before this court or before a referee to be appointed by this court, at a time and place to be fixed by this court, to undergo an examination, under oath, touching his ability and means to satisfy said judgment.
‘ ‘ City of St. Louis, State of Missouri, ss.
“Thomas F. Ackerman, duly sworn, on his oath says that he has read the foregoing petition, and that the statements therein contained are true, according to the best information and belief of him, said Ackerman.
“Thomas F. Ackerman.
‘ ‘ Subscribed and sworn to before me this 28th day of October, 1903. My term of office expires December 12, 1904. Robert Shackelford,
“Notary Public, St. Louis County, Mo.”
Additional affidavit is as follows :
“City of St. Louis, State of Missouri, ss.
“Thomas P. Ackerman, being duly sworn, on his oath says that he has read the foregoing petition of Thomas P. Ackerman, administrator de bonis non of Alfred W. Fleming, deceased, filed in the circuit court of the city of St. Louis on the 9th day of November, 1903, and that the statements in said petition are true to the best of the knowledge and belief of said affiant, Thomas F. Ackerman.
“Thomas F. Ackerman.
“Subscribed and sworn to before me this 13th day of June, 1904.
“Wm. H. Hauschulte, Clerk.”

Oh June 14, 1904, said petition and affidavits were presented, to the court, and the court thereupon made an order on defendant Charles Green that he should appear before Joseph H. Zumbalen, referee, on June 23, 1904, at 11 a. m. in the Rialto-Building, to undergo an examination, under oath, touching his ability to satisfy said judgment.

On June 17, 1904, said order was returned served on defendant Charles Green.

On June 21,1904, defendant filed his motion to vacate said order of June 17, 1904, with acknowledgment of plaintiff’s attorney of service thereof on him; which motion is as follows:

“Charles Green, defendant in the above-entitled cause, moves the court to vacate and set aside its order made June 14, 1904, in the above-entitled cause, commanding defendant to appear for examination before Joseph Zumbalen, Esq., a referee, appointed by it, under the provisions of the sections of the Revised Statutes of Missouri hereinafter set forth, and also for the specific purposes mentioned in said order, and which order was served on this defendant June 16, 1904; and for grounds of, and reasons for, this motion and why said order should be vacated aud set aside he assigns the following, viz:
“1. That no return has been made upon any execution issued upon the judgment in said order mentioned on which said order could be lawfully based.
“1 1-2. That this cause was appealed to the Supreme Court of Missouri on May 23, 1903, without a supersedeas bond, and the same is now pending in said Supreme Court, wherefore this court has no jurisdiction to make said order without previous notice to defendant.
“2. That no competent or relevant evidence was submitted to the court, sufficient to justify the issuance of said order or sustaining the allegations of said petition.
“3. That the petition filed in this court and on which said order was made does not state facts sufficient to constitute lawful grounds for making said order or giving jurisdiction to this court to make it.
“4. That said order was issued without any notice to him, said Charles Creen, of it, or the petitioner’s intention to apply for it, and without the knowledge of said Charles Creen, and without any opportunity having been given him to oppose it.
“5. Because the affidavit and the motion or petition on which the order is based are each and both informal, insufficient and uncertain. Neither of them shows such knowledge on the part of affiant of the facts mentioned therein as is required by law to justify such order, even if said law were constitutional.
“6. That neither the motion, petition nor affidavit filed to obtain said order alleges'that defendant has any property subject to execution, or out of which said judgment could be satisfied in whole or in part, or has conveyed or attempted to convey his property with adesign to defraud, hinder or delay his creditors or any of them, or that the affiant, Ackerman, has any such knowledge of any of those facts or of any of them, or of the matters to which he swears or makes affidavit of matters which would be received from his lips- as competent evidence on a trial, and that there is no proof before this court that the said affiant has any such knowledge and that the fact is he has no such knowledge.
“7. That the appointment of said referee was made ex parte and without notice to defendant and said Joseph H. Zumbalen, Esq., was appointed such referee without plaintiff endeavoring to agree with defendant on a person for referee, without hearing defendant or consultation with, or consent of, or knowledge of defendant and without seeking such consent, and only at the instance and suggestion of plaintiff, and thereby the defendant is, was, and is threatened to be deprived of his property -and liberty without due process of law, and was, and is, denied the equal protection of the law, all contrary to the provision of section 30' of article 2 of the Constitution of-Missouri, and of article 14 of the amendments to the Constitution of the United States, commonly known as the 14th amendment to the constitution last named.
‘ ‘ 8. That this court- claims to permit and order the examination by it of, by or before such referee, of the parties to the execution mentioned in the petition and affidavit of plaintiff, and to be empowered to make said order and to make it ex parte and without previous notice to, consent of, consultation with, or hearing' of defendant and to punish defendant for any failure to comply with said order, or any order resulting from such examination or based on any facts elicited under an examination made or had under the provisions of any of the sections of the Eevised Statutes hereinafter named, under or by virtue of sections 3227, 3228, 3229, 3230, 3231, and 3232, of the Eevised Statutes of Missouri of 1899, and only and by virtue of said sections and their provisions; and said sections and each of them and each and every part of them and each of them respectively and collectively deprive this plaintiff and all citizens similarly situated of the equal protection of the laws and of liberty and property without due process of law and respectively and collectively against and in violation of the provisions of section 30 of article 2 of the Constitution of Missouri, and of said article 14, amendment to the Constitution of the United States, commonly known as the 14th amendment to said last-mentioned constitution, so far as they attempt to confer any such power or authority on this court, or on such referee, and in all respects other than those above specifically stated.”

Tbe court overruled said motion to vacate, and appellant duly excepted, and has brought this case to this court on appeal.

I. The first assignment of error presented, by ap>pellant, for our consideration is the action of the court in making the order appointing a referee to examine the judgment debtor under oath, touching his ability and means to satisfy the judgment, without first giving him notice of the intended application.

This proceeding is authorized and governed by sections 3227 to 3232 of the Revised Statutes of 1899. A careful reading of those sections has failed to reveal a provision requiring notice to be given to the judgment debtor of the intended application.

In the absence of a statutory requirement, we are unable to see what legal rights of his have been violated or denied to him by that order. The proceeding is simply one to compel him to disclose the fraudulent disposition of his property or the hiding place thereof. That does not take from him any legal or moral right. The legal rights of the parties, both the judgment creditor and the judgment debtor, were fully determined by the solemn adjudication of the court, when it rendered the judgment against the appellant. All the property he owned at that time, or which he had subsequently acquired, was subject to seizure and sale under execution issued upon that judgment. If, as a matter of fact, he had fraudulently conveyed the property or had concealed it so that the ordinary process of law could not be served upon it, that fact in no wise militated against the judgment creditor’s right to seize and sell the property, if it could be found, nor did such conveyance or concealment augment the rights of the judgment debt- or. So it can be readily seen that the order requiring the judgment debtor to disclose the hiding place of the property, the judicial status of which had theretofore been established by the judgment of the court, in no manner whatever deprived him of any of his legal rights.

This statute does not even go so far as to require or authorize the court in this kind of a proceeding to order the debtor to turn the property over to the officer. [State ex rel. v. Barclay, 86 Mo. 58; In re Frederick Knaup, 144 Mo. 661.]

After the property has been laid bare by the foregoing procedure, then the proper officer may levy the execution upon it and sell it for the payment of the judgment; but if it is not susceptible of being levied upon, then the appropriate equitable remedy or legal proceeding should be resorted to, in order to subject the property to the satisfaction of the judgment. [In re Frederick Knaup, 144 Mo. 658; Bryant v. Bank of California, 8 Pac. 644.]

It must, therefore, follow from what has been said that appellant was nbt entitled to notice that the order was to be applied for.

II. The appellant next assails the constitutionality of the foregoing sections of the statutes under which this proceeding was instituted, because the order of the court appointing the referee to- examine the judgment debtor was ex parte and without notice to him, and because said sections make no provision for such notice, and that because thereof he was and is threatened to be deprived of his property and liberty without due process of law, and was and is deprived of the equal protection of the law, contrary to the provisions of article 2, section 30 of the Constitution of Missouri, and of article 14 of the amendments of the Constitution of the United States, known as the 14th amendment.

If we are right in the conclusions reached in paragraph one of this opinion, which are substantially to the effect that appellant has not been and cannot be deprived of his liberty or property in this proceeding, then it is difficult for us to see why the statute should be declared unconstitutional and void, because it does not provide for notice to be given to him when such an order is applied for. We are clearly of the opinion that the judgment debtor is not entitled to notice in such a procedure, and, for that reason, hold that the statute is obnoxious to neither the Constitution of the State nor that of the United States.

Nearly every State in the Union has similar statutes, and many of them have been in force for years, yet we have been unable to find a single case where the constitutionality of one of them has ever been questioned.

The conclusion'here reached is so clearly correct, it seems to us, that it requires the citation of no authorities to sustain it.

III. Appellant assails the sufficiency of the application filed, and contends that the allegations thereof and the affidavits therewith filed are insufficient to give the court jurisdiction to make the order for examination of the debtor.

In so far as the allegations of the application are concerned, we concur with what the Court of Appeals said upon that question when this case was before that court. [Ackerman v. Green, 107 Mo. App. 341.]

In this class of proceedings it is impossible to allege all the facts which would be necessary to constitute a good cause of action, if filed as a bill in equity or a petition in an action at law, because the facts are not known to the creditor, and the sole object sought to be obtained is to ascertain the facts, the whereabouts of the debtor’s property in order that it might be seized, or such facts as would enable the creditor to make the proper allegations in case legal or equitable proceedings were necessary to be instituted in order to reach the property of the debtor. If the creditor knew those facts, then what would be the use or sense of enacting such a statute?

And since the affidavit to the application has been amended in accordance with the suggestions of the Court of Appeals, we are of the opinion that it constituted sufficient evidence upon which to justify the court’s action in making the order appointing'the referee. [R. S. 1899, sec. 3228; Ackerman v. Green, 107 Mo. App. 341, and cases cited.]

IV. The respondent contends that an appeal will not lie from such an order made by the circuit court' in this class of cases.

While the circuit court and the Court of Appeals have held to the contrary, we are constrained to disagree with the conclusions they have reached.

The statute makes no provision for an appeal. It is complete within itself, and the nature of proceeding and the object to be sought thereby are contradictory to the right of appeal. The proceeding is summary in its nature, and intended to disclose fraudulently concealed property, in order that it may rightfully be subjected to the payment of a just debt. Why, then, should the law provide for a summary hearing for that purpose, and, in the nest breath, allow an appeal from the order granting the relief which would delay the investigation for years ? And of that this case is a striking example. Especially does this seem to us to be true when the investigation in no manner affects the debtor’s property rights. If the property discovered belongs to the debtor, then he has no right to conceal it, nor legal right to object to levy upon and sale thereof; and if it belongs to third parties, then the inquiry does not concern him nor does the inquisition in any manner affect the right of third parties, because they are not parties to the proceedings and are not precluded thereby, but are entitled to their day in court whenever their property is sought to be taken to pay the debts of another. [In re Frederick Knaup, 144 Mo. 653; Bryant v. Bank of California, 8 Pac. 644.]

So you may look at the case from any standpoint, and we are unable to see how any right whatever of the judgment debtor is involved in such a procedure, except, perhaps, those rights which belong to any and all witnesses. But a witness as such, whether he be the judgment debtor or any other witness in the case, who has no property rights in the proceeding, cannot appeal" from the ruling of the court which requires him to answer questions regarding property which has been fraudulently conveyed or- concealed. The mere statement of the proposition carries with it its own refutation.

In addition to what has been said above, where a statute in relation to special proceedings is complete in itself and covers the entire subject, it is exclusive, and the proceedings under it are governed solely by its pro- . visions. [Baker v. Railroad, 36 Mo. 543; Carter v. Tindall, 28 Mo. App. 319; Schwoerer v. Christophel, 64 Mo. App. 81.]

The conclusions above reached must result in the dismissal of the appeal, which is accordingly Gone.

All concur, except Graves, J., who dissents.