249 Mo. 474 | Mo. | 1913
Lead Opinion
The original petition in this case was filed in 1901. [Davidson v. Davidson, 226 Mo. l. c. 13.] The exact character of this petition is not. material and we only mention it in passing. In January, 1902, all the heirs at law of I. M. Davidson except Rose Belle Finley filed their amended petition in this cause, in which petition they asked, first, for a construction of the last will of the said I. M. Davidson, deceased, and in that connection asked that a trust attempted to he created by such will be declared void for uncertainty and other things; and, secondly, this amended petition prayed for the partition of the lands, and in connection with such claim urged that such lands should be sold and the proceeds divided. The defendants named in that suit were Rose Belle Finley, one of the Davidson girls, James L. Dalton, and some other parties who held liens against the Davidson estate. Issues were duly formed by appropriate pleadings, and the circuit court of Butler county entered an interlocutory' decree of partition June 19, 1903. Under this interlocutory decree an attempted sale was had and the I. M. Davidson Real Estate and Investment Company was reported as the purchaser of all the landed interest of that estate, reasonably
Taking a cne from onr opinion in the Lanra Davidson case, an amended petition was filed in this case in the Butler Circuit Court on April 4, 1910. New plaintiffs were substituted and added and new defendants added, if we take as the starting point of this long drawn-out lawsuit the petition of 1902 as the basis. This petition, if the description of the real estate is omitted, is not long, and had best be set out. Leaving out the long list of property involved therein, it reads:
“Now at this time come the plaintiffs in the above entitled cause and by leave of court file this, their amended petition in said cause, and for such amended petition state:
‘ ‘ That the plaintiffs are seized, as tenants in common, of the following described lands, to-wit: . . .
“And that a majority of the owners thereof reside in said county of Butler.
“Plaintiffs further state that the plaintiffs are the owners and entitled to the following shares of said lands:
“Jay Davidson and Ida M. Rhodes, each an undivided one-ninth.
“Mary J. Davidson, Ira M. Davidson, Rose Belle Davidson, Laura C. Davidson, G-rant Davidson, May Davidson and Nina Davidson, each an undivided one-eighteenth.
“Louis P. Dinning and John M. Atkinson, each an undivided 7-72.
“David W. Hill an undivided 7-36 of the lands above described; and the defendant James L. Dalton claims a debt against said lands in the approximate sum of twenty-six thousand dollars, mentioned in the interlocutory decree heretofore rendered in this cause; that the defendants, William Ferguson and I. M. Davidson Real Estate & Investment Company claim the*480 share of said lands belonging to Jay Davidson; that the defendants Isaac H. Barnhill and I. M. Davidson Real Estate & Investment Company claim the share of lands belonging to Ida M. Rhodes; that the plaintiff Chris L. Rhodes is the hnsband of Ida M. Rhodes; that the plaintiff Nina Davidson is a minor, nnder the age of eighteen years, and that W. W. Turner is the duly appointed, qualified and acting curator of her estate; and that the defendant I. M. Davidson Real Estate & Investment Company is a corporation organized and existing under and by virtue of the laws of the State of Missouri.
“Plaintiffs further state that whatever right, title or interest the defendants William Ferguson and Isaac H. Barnhill held, or claim to hold, in the above described lands are held by them in trust for the I. M. Davidson Real Estate & Investment Company, which corporation has since the 12th day of October, 1903, been wrongfully in the possession of all the lands above described, and has wrongfully collected and appropriated, to its own use, the rents and profits for such time, to the extent of $100,000', and for which rents and profits the owners of said property are entitled to an accounting.
“Plaintiffs further state that the plaintiffs hold title to the above described real estate by virtue of the last will and testament of Isaac M. Davidson, deceased, a certified copy of which was, on the 11th day of November, 1897, recorded in book 51 at page 36 of the deed records of Butler county, Missouri, and by virtue of a decree of the circuit court of Mississippi county, Missouri, rendered on the 11th day of April, A. D. 1908, a certified copy of which was, on the 22nd day of March, A. D. 1910, recorded in book 90 at page 502 of the deed record of Butler county, Missouri, and by virtue of a quit-claim deed recorded March 21, A. D. 1910, in book 87, at page 500 of the deed records of Butler county, Missouri, and a quit-claim deed from*481 Louis F. Dinning to John. M. Atkinson on the second day of April, A. D. 1910.
“Plaintiffs further state that the estate from which said lands descended has been finally settled and all claims against the same have been fully discharged.
“Plaintiffs state that the interlocutory decree rendered in this cause on the 16th day of June, 1903, and entered in book S at page 352 of the circuit court records of Butler county, Missouri, is erroneous and does not correctly adjudg'e and define the true interests of the owners of the above described real estate;- that some of the interests in said real estate, since the rendition of the interlocutory decree, have changed or merged and that said interlocutory decree ought to be set aside and for naught held.
“Plaintiffs further state that on account of the nature and character of the lands sought to be divided, and the number of the owners thereof, partition in kind cannot be made without great prejudice to the owners and that said lands ought to be sold and the proceeds partitioned among the several owners.
“Plaintiffs further state that the above described real estate consists very largely of houses and improved farms, yielding annually about twelve thousand dollars rent; that said property (except some of the apartments of the Davidson Flats) is now in the possession of N. C. Whaley, receiver appointed by the circuit court of Mississippi county, Missouri, which receivership has not yet terminated and that it is necessary that a receiver should be constantly in charge of said property to preserve the same and collect the rent.
“Wherefore plaintiffs pray the, court to appoint, as soon as said Mississippi Circuit Court receivership be terminated, a receiver to collect the rents and to care for and preserve the said real estate while this property is in litigation in this court; that said inter-*482 loeutory decree of partition heretofore entered herein be set aside and for naught held; that partition of said lands may be made among the owners thereof according to their respective interests therein; that said lands be ordered sold and the proceeds divided among the said owners in proportion to their respective interests ; that the I. M. Davidson Real Estate & Investment Company, and William Ferguson and I. H. Barnhill, its officers, account to the owners of said property for the rents and profits thereof from the 12th day of October, 1903, aggregating one hundred thousand dollars; and for such other and further orders, decrees and relief in the premises as may seem just and proper to the court, plaintiffs will ever pray.”
Each defendant filed a separate answer, to which plaintiffs replied. The pleadings are verbose, covering nearly 100 pages of this voluminous record. The circuit court, after trial, modified in some respects the original interlocutory decree, and from this modified interlocutory decree the plaintiffs have appealed, as also have the defendants Barnhill and the I. M. Davidson Real Estate & Investment Company. The contentions of the several parties will have to be stated separately, to the end that a fair understanding of the present record may be had from any reasonably short statement of the case. To that end we will note that portion of the interlocutory decree and the pleadings and proof in connection with the contentions and counter-contentions with reference to each party. Reference will also be made to our former opinion in Davidson v. Davidson Real Estate & Investment Co., 226 Mo. 1, which opinion should be read in conjunction with this opinion for a fuller statement of some of the pertinent issues and facts. This gives a general outline of the case now here.
“With reference to the defendant James Lavin, plaintiff’s position is simply this — the decree of the circuit court of Mississippi county is conclusive as to his claims (whether they exist in the form of assignments or merge in the notes read in evidence) here*484 asserted. That was a suit, among other things, to determine and qniet the title — he was made a party defendant, was duly summoned, filed two answers, judgment was rendered against him, determining the title to be in the nine devisees in equal shares and barring whatever claims he might have, whereby he is precluded and estopped from asserting his claims in this proceeding, which he owned and held at the time of the proceeding, ■ as he so testified in this case. He toot no appeal. The trial court erred in not sustaining plaintiffs’ plea of res adjudicata as to his claims.
Lavin was the holder of these two notes and deeds of trust from the Real Estate & Investment Company at the date of the Laura Davidson suit in Mississippi county. By evidence in this record he shows that the answer filed for him in the Laura Davidson case was filed without authority; that he had always held unassigned and uncancelled these two claims and only took the notes and mortgage as additional security; that the claims have never been paid. The validity of the original Ferguson and Wheeler claim does not bear denial. It'was reduced to judgment in the circuit court of Carter county first, then probated in the probate court of Butler county against the estate of I. M. Davidson, and later in the interlocutory decree of 1903 was directed to be paid out of the proceeds of the sale prior to partition of such proceeds. The Phillips claim was duly allowed as costs and directed to be paid -in the same way. It is evident that these were just demands against the Davidson estate and should now be paid out of the proceeds of that estate, unless Lavin has in some way lost his rights. This plaintiffs say was done by the judgment in the Laura Davidson case. In the petition of plaintiff in that case, the only place therein where Lavin’s name is mentioned is in this clause: “ That said corporation, by virtue of said partition proceeding only, is in possession of all the above described real estate, and has executed mortgages and
II. The modified interlocutory decree, in so far as it affects the defendant James L. Dalton, is vigorously attacked by the plaintiffs. The amended petition of the plaintiffs we have duly set out in our state
(1) Did the decree of the Mississippi Circuit Court divest Dalton of these two shares, if in fact he ever owned them?
(3) Is the interlocutory decree of Jüne 19, 1903, pleaded in bar by Dalton, final and conclusive, as to his rights?
(4) If such decree is not conclusive, then in what respect is the present interlocutory decree wrong in practically reaffirming the old interlocutory decree. The latter question will of necessity involve the discussion of several others, which can be outlined if we reach that point.
“Wherefore, plaintiff prays the court to cancel, set aside and for naught hold the decree of partition aforesaid and the order of sale made thereunder, set aside and for naught hold the report of sale made*488 by the special commissioner thereunder, set aside and for naught hold the order of this court ordering said special commissioner to make and execute the deeds aforesaid, and to cancel, set aside and for naught hold both of the special commissioner’s deeds above referred to as constituting a cloud upon the title of plaintiff, and to render judgment against the defendants, determining the title to said real estate, and quieting and confirming plaintiff’s title to an undivided one-ninth interest in and to all the above described real estate, and to enjoin the defendants, their officers, attorneys, agents, servants and employees from selling or disposing of said real estate, or otherwise dissipating or injuring the same, pending the final disposition of this cause; and that the court appoint some suitable person to take charge of said real estate as trustee or receiver, collect the rents and profits thereof, and pay the same over to this plaintiff and the other heirs of Isaac M. Davidson, deceased, as is provided by the terms of said will, and for all other proper relief in the premises plaintiff will ever pray. ’ ’
Dalton never claimed any interest in the share of Laura Carter Davidson, except in so far as the deed of trust given him by the corporation might affect her claims. The answers of the other devisees in that case prayed for no affirmative relief. Their answer simply admitted the facts pleaded by Laura Carter Davidson, and asked that, judgment be entered as by her prayed. This petition when fairly construed only asked for a determination of the title so far as Dalton is concerned on the ground that he was a mortgagee under a conveyance from the corporation. We think this decree, so far as Dalton is concerned, Qut up by the roots his mortgage lien, but as to him and Lavin went no further. If as a fact, Dalton owned two shares in this estate, we are not prepared to say that the Laura Davidson decree barred his rights. It is clear that he was only sued in that action as mortgagee,
G-oing now to the second question. Does the conduct of Dalton in the Laura Davidson case now preclude him from claiming these shares? In his answer he did defend the title of the corporation to all these lands. This he would naturally do in the protection of the deed of trust which he held from the corporation. There is no question that Dalton’s whole conduct in that case was to uphold the sale under partition, which sale, if valid, passed title to all the lands to the corporation. Does this conduct now estop him from now claiming the interests, if any he had, prior to the sale? His grantee did join in a request that the judgment in partition be set aside and for naught held. This Laura Davidson asked and in her request they joined. That request only affected the deed to the corporation and subsequent mortgages made by the corporation. At least it was only granted that far. Had the whole request been granted in the Laura Davidson suit, and both the final and interlocutory judgment been uprooted, how would Dalton’s conduct in that case have affected his grantees, if in fact they had actually parted with their title by deeds to Dalton? One cannot complain of the acts of another unless
Passing to the third question. Does the first interlocutory decree finally fix the rights of Dalton? In the trial resulting in the modified interlocutory decree, and from which this appeal is taken, he took that position in his answer. The question then is, what is the character of the interlocutory decree of June 19, 1903 ? Is it such a decree as finally fixes rights in the case at bar? Upon motion to modify our judgment in the Laura Davidson case (226 Mo. l. c. 39), we said this.concerning that interlocutory decree:
“It developed in-the evidence in the case at bar, that Dalton had been allowed in the partition suit $150 per month for his services. It was also proven that Dalton whilst acting as trustee had bought the interests of two of the devisees for $8000 and had sold them for $15,000, thus clearing $7000 on the deal. The plaintiff, in her motion, asks us to modify the interlocutory judgment in the partition suit so as to cut down Dalton’s allowance for services, and to charge him with this seven thousand dollars. Counsel misconceive the case we have before us. The case at bar is an action to set aside the judgment of the circuit court' of Butler county, because of fraud in the concoction of that judgment. The circuit court of Butler county construed the will, declared that no valid trust had been created thereby and entered first an interlocutory judgment of partition and order for sale. Afterward it approved the report of sale and entered its final judgment. This entire judgment was attacked for*491 fraud in the present case, which is a direct proceeding in equity to set the same aside. The trial court held that there was fraud in the proceeding occurring after the interlocutory judgment, hut that there was no fraud in the procurement of this interlocutory judgment. In these views of the trial court we concurred. There was no fraud in the proceedings thus far, hut the fraud began thereafter.
“Had there been an appeal from this interlocutory judgment, or from the final judgment, then we could review the matters urged in this motion, hut there was no such appeal, and in the case at bar, the only thing we can do as to this interlocutory judgment is to set it aside on the ground of fraud in its concoction, or in the absence of such fraud, permit it to stand. The latter we have done, so that the original partition suit stands in the circuit court of Butler county with an interlocutory judgment only. That case is not now before us and never has been before us. The case we have is simply one attacking the judgment in the partition case. It should be remembered that in the partition case after the affirmance of the judgment in this case, there is only an interlocutory decree and not a final decree. As to what powers the circuit court of Butler county has as to this simple interlocutory decree, it is not proper for us to say in this case. "We can only discuss that question, if the partition case ever reaches this court. For the present, the circuit court of Butler county will have to wrestle with all questions pertaining to its duties relative to the interlocutory decree. We can only say that there was no fraud in the concoction thereof, so far. as this record is concerned, and protect the interest of Dalton thereunder so long as it stands.”
It thus appears that we by no means attempted to affirm that decree, for the good reason that it was not before us upon the question of error or no error in its make-up. The case wherein it was entered was not
But before discussing the situation of an ordinary interlocutory judgment in partition there is a question peculiar to this case which should meet with disposition. In this case there were both an interlocutory judgment and a final judgment. No appeal was taken from either. Later both were attacked for fraud in the Laura Davidson case and the final judgment set aside for fraud as well as for other reasons. Does this situation make the interlocutory decree conclusive, although it be conceded that it would not be conclusive upon the parties until after final judgment in the ordinary case? We find no authority for such a .situation and must permit this question to ride off upon the reason of the thing. Fraud vitiates every
Reverting now to the previous question, what is the legal status of this interlocutory decree of 1903 as being conclusive upon the rights of the parties? In 1891 the statute relating to appeals was amended allowing an appeal from an interlocutory judgment in partition. That provision is carried forward to our present statute, Revised Statutes 1909, section 2038.
In Aull v. Day, 133 Mo. 337, all the authorities are reviewed upon the character and legal status of an interlocutory judgment in partition. Many of these authorities go hack of the Act of 1891, supra. At page 347 of that case Macfarlane, J., says:
“That the final judgment in partition proceedings is merely interlocutory has often been declared by this court, and is so well settled that a citation of the cases is deemed unnecessary. But see Murry v. Yates, 73 Mo. 15.”
“That such interlocutory judgments, made in the progress of a cause, are always under the control of the court until a final decision is reached, and may be modified at any time to meet the exigencies that may arise, is equally well settled. [Bobb v. Graham, 89 Mo. 207.]”
“The uniform holding of this court before the statute allowing an appeal, that an appeal, or writ of*494 error, for such interlocutory judgment, would not lie, rests npon the theory that such judgment continues under the control of the court and is subject to corrections and modifications. The right to correct and modify its own orders,‘ springs from the court’s power to control its own action in pending poceedings, so as to subserve the ends of justice. ’ [Bryant v. Russell, 127 Mo. 433.] Courts should not leave the matter of controversy ‘in such a condition that its final administra^ tion may be wholly inconsistent with equity and good conscience.’ [Shields v. Barrow, 17 How. (U. S.) 130. See, also, Hiles v. Rule, 121 Mo. 256.]
“Elliott says: ‘Until there is an ultimate judgment the case is not finally disposed of, inasmuch as the trial court may change its rulings, award a venire de novo, grant a new trial, or make some such order, notwithstanding the fact that in other rulings it may have clearly manifested a purpose to carry its rulings into the ultimate judgment or decree.’ [Elliott, App. Proc., sec. 83.]
“Black, in his work on Judgments (sec. 308) says: ‘ Art interlocutory judgment or decree, made in the progress of a cause, is always under the control of the court until the final decision of the suit, and it may be modified or rescinded, upon sufficient grounds shown, at any time before final judgment, though it be after the term in which the interlocutory sentence was given.’ ” And in page 348 of what opinion he thus discusses the Act of 1891, which is in effect, if not in exact words, our present statute:
“But it is said that section 2246, Revised Statutes 1889, as amended by Laws of 1891 (page 70), makes . the judgment in partition, which determines the rights of the parties, final on that issue and is therefore beyond the control of the court after the term at which it was rendered.
“The only purpose of the statute is to give a right to appeal from such an interlocutory judgment. Noth*495 ing in the act discloses an intention to change, in any respect, the character of the judgment in form or effect. Indeed the statute denominates the judgment as ‘interlocutory,’ and provides that ‘a failure to app'eal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.’ The plain purpose of the law is to give a party the right of appeal from the order when made, hut all his rights to have the adverse ruling reviewed on appeal from the final judgment are reserved. [Ess v. Griffith, 128 Mo. 60.] If no direct appeal is taken the interlocutory judgment stands merely as a part of a pending proceeding and is under the control of the court.”
Of course if an appeal is taken hy either party from the interlocutory decree and the judgment of this court invoked, and that interlocutory decree is affirmed, then the rights of the parties become firmly and finally fixed, and such judgment of affirmance makes the interlocutory judgment conclusive, and one which could be pleaded in bar. This rule is well stated by Lamm, J., in Padgett v. Smith, 206 Mo. l. c. 312, in this language:
“It has been held that an interlocutory judgment in partition, unappealed from, remains interlocutory in character and within the supervision of the court until final judgment at a subsequent term. [Aull v. Day, 133 Mo. 337; Ess v. Griffith, 128 Mo. 50.] It was argued in the Anil case and the Ess case that the mere statutory right to an appeal from an interlocutory judgment, though unused, changed the interlocutory character of such judgment into a final one; but that argument was disallowed and it was held that the unexercised, naked right to appeal from such judgment left the judgment interlocutory in character. But the situation changes when an appeal from such order*496 is taken and the judgment is affirmed here. The judgment then, in effect, becomes the judgment of this court; and may a court, nisi, set aside our judgment, or'be held to commit error because it does not? To so hold reverses the logical order of things and opens the door to confusion.”
In the modified interlocutory decree it is said: »
‘ ‘ The court further finds the interests of the parties to the above described lands to be as follows; that James L. Dalton is entitled to an undivided two-ninths interest in and to all of said above described real estate as heretofore found by the interlocutory decree of June 19, 1903, and affirmed by the Supreme Court in the case of Laura Carter Davidson versus I. M. Davidson Real Estate & Investment Company, James L. Dalton and James Lavin, on March 1, 1910.”
We have italicized the objectionable recital so far as the present point is concerned. That interlocutory judgment was not affirmed in the Laura Davidson case and could not have been affirmed in that case. All we did say or could say in that case was that the record before us in that direct proceeding would not authorize us to vacate such judgment for fraud. The question of error or no error, mistake or no mistake, as to that judgment was not before us, and this is made plain in the opinion upon plaintiffs’ motion to modify our judgment in that case. [Davidson v. Real Estate and Investment Co., 226 Mo. l. c. 39.]
This concludes tbe Dalton end of this much mixed controversy.
III. Defendant Isaac H. Barnhill is in this shape upon tbe record. By tbe modified interlocutory decree tbe court found that be bad no title to any part of tbe Davidson estate lands, by reason of bis attempted purchase of an interest therein, nor did be have any title to lot 28, tbe Davidson Plats, a very valuable piece of property, and decreed title out of him. Tbe court also found that be was indebted to tbe estate in tbe sum of $794.68, but on tbe other band found that Barnhill bad advanced to Ida M. Rhodes $17,222.07 or her interest in tbe estate, and directed such sum to be paid out of her one-ninth interest in tbe net proceeds of tbe sale. Barnhill complains of tbe first three items above named and tbe plaintiffs of tbe latter.
Tbe pleadings may be of interest. Tbe petition we have in our short statement.
Barnhill in a voluminous answer says: (1) that be denies all facts in tbe petition stated except those specifically admitted; (2) denies that Dinning, Atkinson and Hill are proper plaintiffs or have any interest in the subject of litigation; (3) denies that Ida M. Rhodes or Chris, her husband, bas any interest in tbe case, and avers that be bought tbe interest of tbe said Ida M. for $11,000 on the 12th of October, 1903; (4) that be is tbe owner of lot 28, having purchased after a foreclosure sale, and after detailing at great length just
So much for the pleadings in the Barnhill side of this controversy.
In 2 Black on Judgments (2 Ed.), sec. 583, p. 877, it is said: “ ‘Every member of a corporation is so far' privy in interest in a suit against the corporation that he is bound by a judgment against it.’ This doctrine has also the sanction óf the United States Supreme Court; and is approved and accepted in many' of the States, as well as in England.” That one does not have to be an actual party to the suit to be estopped by the judgment therein is shown by the following authorities: State to use v. Coste, 36 Mo. 272; Strong v. Insurance Co., 62 Mo. l. c. 296; Wood v. Ensel, 63 Mo. l. c. 194; Cooley v. Warren, 53 Mo. l. c. 169; Landis v. Hamilton, 77 Mo. l. c. 565.
In the case at bar all of the devisees in the Davidson estate, in the Laura Davidson case, either by petition or answer, were challenging the title of the corporation. This challenge went to the fee title to all the property involved in this case. In this respect the challenge was different from that to Dalton and Lávin discussed supra. Here the Davidson devisees all join in a protest against the alleged title of the corporation. Barnhill and Ferguson, although actively in charge of the case for the corporation, as officers of the corporation, at no time claimed any title in themselves for the two interests they now claim. Neither did they claim the interest of the widow. Under their directions thé corporate defendant claimed the title. They aided and abetted the corporate defendant in so claiming. They not only managed the case for the corporate defendant, but as witnesses testified for it, and all this
The foregoing are all of Barnhill’s contentions that we deem worthy of space in this opinion.
It seems to appear, however, that the trial court has allowed $6200 of these liens both to Barnhill and Dalton. As we gather it Dalton held two deeds of trust on the Ida M. Rhodes interest and that Barnhill claims to be the assignee of these items. They were allowed to Dalton as a lien, and if they are the same items the court upon a remanding of the cause should amend its decree so as to either take these items from Dalton or from Barnhill. To this end it might hear additional evidence. It strikes us that there has been a double charge here. This, however, can be determined fully by the trial court before modifying its
V. We come now to the contentions of the corporation. With this defendant the trial court took an accounting. It was painstakingly done. As stated before, the court opened up> the case for further evidence and himself interrogated about many items in the long accounts filed by this defendant with its answer. This evidence we have gone over carefully. The court charged the corporation with rents and other moneys received from the estate and gave credit for such items as went to keep up the estate or improve it substantially. Plaintiffs contend with much force that this defendant was a tortfeasor, and is chargeable not with what it actually received in rent, but with the reasonable rental value of the premises. Strictly speaking this may be true, but the evidence shows that the corporation was trying to get all the rents it could, and whilst it might not have collected the full amount of $1000 per month, which the evidence tends to show was the rental value of the estate during its holding, yet we do not feel justified in disturbing this finding for the slight difference it would make. The court upon this carefully scrutinized accounting found the corporation indebted to the estate in the sum of $5490.-09, and we are disposed to let that matter stand as found.
The judgment will, therefore, be reversed, and the cause remanded to the circuit court, with directions to modify its interlocutory decree so as to make it conform to the views herein expressed, and then proceed with the cause to a sale, distribution and final judgment. ' To that end evidence may be taken upon the questions suggested in this opinion, and amendments made to the pleadings as herein suggested.
Let the judgment be reversed and the cause remanded with the directions aforesaid, to the end that this cause may be brought to a speedy end. All concur.
Rehearing
UPON MOTION FOR REHEARING AND MOTION TO' MODIFY.
Defendant Dalton files motion for'rehearing. This we.have examined and are of opinion that it should be overruled. Plaintiffs file motion to modify our opinion and directions therein given. In the opinion it is held that Dalton has no title to the shares of Rose Belle Findley and Ira M. Davidson. It is further held, however, that he is entitled to a lien upon these shares for $4000 each, the purchase price paid by him and six per cent interest from the dates