*1 LoaN Co. v. Holland. Holland LaNd 1927] whose, paid supra, by party should be County ease, “benefits ’’ by duty keep up public improvement, then analogy is to foregoing principle application of announced by the Andrew question at the benefit County bar, assessments in case case treasury township and township should be out of the funds by Township, duty defendant, is, Avhose Trail Creek under the cited statutes, keep up, repair public and maintain drag, roads and if highways little, any, There can be situate therein. doubt that the improvements plan drainage question reclamation here have public highways been benefit situate roads within de- township, fendant or expense that the cost maintenance and re- pairs highways to such public roads and has been decreased to some ex- tent, drainage improvements. at least, reason of such works 1919) Drainage (Sec. 4390, contemplates Circuit Court Law R. S'. ‘‘ against public highways according the benefits assessed shall be physical the increased maintenance cost efficiency and decreased roadways by pro- protection reason of the to be derived from the posed necessarily improvements,’’ presumption works and physical efficiency public arises that the highways roads and corporate within Township in- limits of Trail Creek has been creased, and the cost of maintenance thereof has been decreased to the drainage extent or amount of the assessed benefits reason of the improvements. works and sustaining
It follows that learned circuit court erred de- petition dismissing pe- plaintiff’s fendant’s demurrer to tition plaintiff’s at The petition costs. must be reinstated township circuit given court and leave to answer. judgment msi must and the cause re- therefore be reversed
manded to proceedings in accordance circuit court for further with our views It so ordered. and conclusions herein announced. ' Lindsay, G., concurs; 0., sitting. Ellison, not PER opinion adopted foregoing by Seddon, C., is CURIAM: The anil, opinion concur, except as the judges the court. All tí J., sitting. not Company, Appellant, Bertonia A. Hol
Holland Land and Loan land. 298 S. 39.W. July 30, One,
Division 1927. Subsequent 1. CONTRACT: Variance Extrinsic Evidence: Acts contract, by principal Parties. Where owner the reservation in the party, stock of entire bank sold it the other was the bank’s Supreme [April Term, OK Missouri, CouRT Vol. lots, the extrinsic further considered for evidence should purpose showing- part Acts the done whole was reserved. tending inter- a contract after its to show pretation by them, them, plain written one of variance with its terms, control, written. And will not the contract is to be construed as long- so, particularly party now where the was in favor of the reservation *2 deceased, party is contention that either misled the other to and there no disadvantage, the contract made for bank ratified his themselves. Equitable Principles. at MONEY HAD AND RECEIVED: Action Law: 2. law, governed money received is at is for had and one An action equitable action, levying principles. is a flexible form of tribute It strictly legal equitable as well as doctrines. 549, 517, Contracts, J., p. Juris-Cyc. Section Corpus 13 C. References: Received, Money 1267, 1684, p. 41 Evidence, J., n. 59. 22 Section C. 58. n. 70, 5; 7; p. 29, p. J., p. 98. n. Section n. n. Section C. Springfield Appeals. of Court Transferred AFFIRMED. appellant. Sturgis
John T.
for
equitable answer
case triable
(1) The
made tbis
defendant’s
novo,
equity
evidence, de
as well
and this court will review the
377;
272
v.
questions
Barnes,
Claybrook
v.
Mo.
Sauls-
of law. Lewis
damages
(2)
for
as for
berry,
Pitts v.
court
a deed
exe-
supra, the
said: “Where
has been
acknowledged
possession
grantee
pre-
cuted and
of it
is
the
sumptive
delivery.”
(e)
evidence of its
The contract between
bank
August, 1911,
Holland and W. B. Sanford
sale of
stock
for
specifically recognizes
(one-
ownership
bank’s
an
interest
third)
only
in
came
property.
this
And that
interest
Olive Street
(5)
through
delivery
G. Holland deed.
the execution and
of the
and W. B.
August
The contract
T. B. Holland
19, 1911,
between
covering
if
relating
stock,
Sanford as
individuals
to sale
even
divest-
the land in
which
the effect of
dispute,
deny,
we
cannot have
Holland, though
ing
B.T.
conveying
the title of
same to
large
of the
majority
thereby
of the
became the owner
corporation
A
of directors
by authority
stock.
acts
of its board
through
duly
No stock-
acting
its officers
as such when
authorized.
cor-
holder,
holdings
bind the
large
may be,
however
can act for or
R,
especially
to its
poration
530, 623,
7
his contract.
C. L.
642;
71;
Coal
land-, p.
Hill v. Rich
Jones v.
139
Hill
Williams, Mo.
Realty
Co.,
Co., 254
29;
119
Guaranty Mortgage
Mo.
v. Delmar
Co.
to
100;
S'. W.
14
the stockholders
A,
A
between
C. J. 361.
contract
to
corporation
sell stock
cannot
to
a contract
be construed
Zinc Co. v.
Lead corpoi*ation
sell its land unless the
ratifies same.
for sale of
Co.,
Land
contract
Mann
Tablow
received,
(1)
money
hence,
an ac-
This is
action for
had and
general finding,
here, in
equity,
tion at law and not in
and a
favor
respondent,
tending
support
if there is
evidence
finding
Dunham,
S'.
is
209 W.
conclusive on this court. Brewer
procedure is con-
Although
law,
is
far as
it
an action at
so
equity,
rather,
is
cerned, as
substantive law it
an action
for
reason
governed by equitable principles,
is controlled
order
many
that it has
times
this State
been
decided
action, it is not sufficient
to recover in such an
addition there-
legal
required
show in
title,
show a
but he is
mere
good
equity
to,
money
that the
defendant has received
showing
ab-
conscience,
ought
plaintiff.
pay
Such
she
*4
Moffett-
solutely
recovery.
v.
right
to
Richardson
necessary
the
of
Banking
Donovan
Drug Co.,
App. 515;
92
Co. v.
West
Clifford
Mo.
Bank,
v. Central
Co.,
239;
Comm.
Mo.
Co.
195
Johnson-Brinkman
168;
v.
116
AY.
Stockman
558;
Wilson,
Mo.
v.
197 S.
Whitecotton
T. B.
between
Allen,
App.
(2)
160
contract
Mo.
229.
The written
of
the
being
the time
owners
Sanford, they
Holland and W. B.
which Holland
Banking Company,
all the stock of the Holland
of the
estate
real
sold to
and all the
Sanford
stock
bank
the
jointly
disposed
thereby
Holland and
partly
of
to
against the
conclusive
partly
individually,
T. B.
is
to
property
gives the
right
appellant
the
contract
of
as this
reftover,
to
equitable dispute
the
Holland,
convey
to
is
to
sufficient
legal title
convey the
though
to
interest,
beneficial
sufficient
even
not
contrary
plaintiff,
to
property
recovery
the
the
prevents the
195,7]
955
Loan
Holland Land &
v. Holdand.
Co.
money
pro-
in an action for
to-tbe contract
and received for the
supra.
property
so,
of such
under the authorities
This is
ceeds
even
though
technically
the contract did not
bind the
the reason
objection.
that
the bank
could
The bank
no one but
itself
raise the
objection,
made no such
recognized,
ratified
confirmed the
any
contract and
made
property
never afterwards
claim to the
general
the
reason
a
a
that,
corporation
further
while as
rule
is
separate
legal
a
from
stockholders,
fiction,
this is a mere
entity
equity
and courts
beyond,
equity
of
will look
requires it,
and when
entity
will consider such
as identical with the constituent members
compose
that
it. United
v.
234 Fed.
Co.,
States United States Shoe
141;
689;
Smith
216
v.
United
Moore,
States,
Fed.
McCaskle v.
U.
405;
S.
967;
Adams,
Cardo v.
231 Fed.
v.
Sebree
Cassville Railroad
Co., 212
very
may
S.
generally
W.
It has
held
be
been
that there
a division
corporation among
with-
of the
of a
stockholders
formality
declaring
out the
of a
of
resolution
the board of directors
a
Spencer
dividend.
Co. v.
961;
v.
Fed.
Southwestern
Lowe,
Martin,
355;
Georgia
57 Ark.
Central of
Railroad v.
Trust
Central
.Co.,135
472;
Company
Ratley
Ga.
Calvert,
569;
Grats &
v.
Pac.
v. Clendenan,
61;
(3)
232 Fed.
Moore,
Smith v.
est'in the good description deed, in a but would not be a property” ford description conflicted there- prevail particular would over- description 115 Mo. The Thompson Thompson, with. Mr. with the custom that Holland followed is in accordance contract testimony his will and the designating as shown terms, general “spoke of Mr. McDavid that he of McGregor-Noe ITeer Wool- Building, Building, such as the College Street, Building on the Morrison Building, a certain worth ’’ Building. reassigned, which has been LINDSAY, case is one C. This sale, defendant, upon a money and received is a suit for had own. plaintiff estate which claimed her of certain real made jury. No of court, without a declarations The trial was before given. law were asked or defendant, plaintiff's gave judgment in favor of the court Appeals, and was heard
appeal Springfield went Court of upon court transferred to this that court. The case has been request Appeals, who of the judges Court of one of the of the judg- of the holding in affirmance opinion majority, that the court. facts decisions ment, was in conflict with certain length opinions, of ma- issues are treated at made rehearing, and also in the jority original upon the hearing, majority opinion the issues dissenting opinion epitomizes filed. The (274 developed, as follows pleadings, and the facts made states 951) S. W. : is based corporation “Plaintiff and its cause of action - 1921, day February,
alleged facts that on the equitable been the legal long prior thereto had owner and for a time south line of beginning on the owner of a in a lot one-third interest of Lot Block Street, 123 corner Olive feet east of the northwest northeast, Original corner Springfield, Missouri, at the Plat of Company: by McGregor-Noe Hardware occupied lot owned and 50 feet to feet; west feet; thence thence east thence south 117% beginning; McGregor-Noe lot; north the east line of said thence west otherwise described an undivided one-third feet, Original Plat Block Lot the east 65% formerly been Springfield, to this land Missouri. That the title Banking Com- in B. him to the passed C. from 13, 1900. That the pany by quitclaim deed December him, bank was the deed March 1921. That not of that deed 2, 1921, until reason recorded March. the one- being title to record, defendant, had asserted who an innocent it to by plaintiff, third sold interest in owned *6 HOLLAND LAND & LOAN Co. V. HOLLAND. 957 1927] plaintiff thereby property. lost the purchaser, and suit re- to what she for property. cover defendant received There asking a an accounting is also count for as to rents received de- fendant. plaintiff’s
“Defendant denies title and in up asserts title herself it, pleads estoppel to the time that she sold laches and as a bar plaintiff’s pleads action. As to rents received defendant she five-year part Statute of Limitations as to the account. Plain- nearly tiff all answer, moved to strike out its motion was overruled, and proceeded the cause then to trial.
“At trial, it was admitted C. Holland was the common source title to in in the one-third interest described plaintiff’s petition, acquired through and that he title the foreclosure of a deed of trust A. executed B. Crawford. It was also conceded that the Townsend heirs in owned the other two-thirds interest plaintiff same land. quitclaim then in offered evidence a from C. B. bank, 13, 1900, Holland to the dated December recorded 2, March 1921, controversy land in here and sev- eral other tracts of land. It a quitclaim next offered deed from the plaintiff controversy, 5, 1921', for in the land dated March 7, warranty recorded March 1921. It a offered deed from then George defendant land, February H. Townsend for the same dated 25, 1921, 7, and recorded March 1921. This deed recites that grantor (defendant herein) ‘residuary legatee is the of T. B. Holland.’ It receipt also recites the $1200 as the consideration the trans- fer.
“Plaintiff in then offered the files a suit tried and record County Greene May term, 1923, plain- Circuit Court at this against try tiff George II. to this title Townsend land. This record the suit heard, shows that the evidence ease, then A. Hol- dismissed as to the defendant this Bertonia land, judgment against plaintiff'in was then rendered favor of George H. Townsend. The held that case Townsend court any purchaser was an innocent of the land for value and without knowledge B. Holland to the unrecorded deed from C. pass questions
and refused to that suit. The on other then x*ested. Holland,
“The dated June defendant then offered the will of C. 21, all 1895, probated 1901, in which he 25, March devised general terms, par- without son, Holland, to his ticularly describing any property. next offered the will Defendant August 9, Holland, probated 1913. dated June was devised to This will contains clauses in which real estate several persons, disposed different each tract of these clauses defendant, widow, seven described. He devised to Supreme 5)58 [April Tenn, Von. oe COURT MissouRi, tract; Mrs. daugbter-in-law, diaries tracts. To tracts; son, Jarrett, two a daughter, Charles MJrs. Taney County. Springfield and some land in One oí tracts five adjoins controversy Jarrett to Mrs. the land tracts devised these ‘Beginning is described as side, and follows: on the east here 14 in northwest corner of Lot Block point 178 feet east of the feet, east Original Springfield, feet, Plat of thence south 117% beginning, being feet, north to feet Lot feet west Springfield, Missouri, Street, 14 in Block situated Olive of Lot Church, reserving Presbyterian off said tract of Cumberland west adjoining and run- alley Townsend twenty *7 length north and of tract.’ ning south the above-described the full daughter, Grady a tracts. To Holland San- Simmons, To three Bertha gives will one tract. eleventh clause ford, grandson, kind and wherever sit- residue of his estate whatever the rest and Holland, Bertonia A. the defendant this case. wife, to his uated B. deeds, by T. Holland, then offered several executed from C. B. Hol- parties for land described the deed various bank, T. show that B. Holland these lands land to the father, Holland, after O. B. but did not as his own the death of fifty this suit. feet involved convey warranty B. Holland from T. “Defendant then offered deed McGregor, April 8, for nine- to Arch dated the-Townsend heirs controversy ty-four adjoining fifty-foot lot in on Street Olive McGregor quitclaim from Arch to T. east, on also May 24, 1905. The latter deed was land, for this dated Holland same objection plaintiff, later offered excluded on and admitted. B.T. Holland
“Defendant a written contract between then offered August W. as follows: Sanford, 26, 1911, dated “ W. B. ‘Whereas, I, day T. B. have this executed option buy thirty days from date íá'anford from me within Banking Company capital stock shares of stock of per price share, Springfield, Missouri, $200 and sum for the $188,000 or a total cash. “ agreed both ‘Now, is and understood therefore, speci- price paid within time purchase in the is hereto that event said banking will of said good with it the fied, carry said sale is to is corporate name, and business, and is to also include the use profits, surplus, undivided purchase price capital, full to be every kind and profit account, all assets and loss same to include (Italics estate. are except real belonging to nature said ours.) “ be is to sold said said ‘All of real estate at which it $1738.30, the sum sum said bank jointly 95!) HollANd Land & LoaN Co. v. Holland. 1927}. purchase price, now carried on said bank one-half is books parties. paid by be each of said “ agreed ‘It also and understood that the said Holland is to president remain a director and of said bank without further re- may agreed salary mutually upon. for such time as muneration And after said Holland retires he is not to use or allow name to any Springfield, be used connection with other bank in Missouri. “ ‘(Signed) ‘W. B. Sanford. “ ‘The said Holland reserves to himself and for his own- use bank’s (cid:127)the entire interest Street the Olive known Townsend property. and Crawford “ Phelps ‘Also the known Avenue as the Baxter purchased bankruptcy Matilda J. sale, Weaver occupied present at the Minta Lair it,being time and additional parties. house other Said as a whole fronts 108 feet more or less on Phelps Avenue, and is about 140 or 150 feet on Grant Street. “ ‘(Signed) W. B. Sanford.’ contract,
“The transfer provided of stock was made as $1738.30 deed to land was made but no the bank to Holland and Sanford.
“Defendant then quitclaim offered a deed from the Holland Land Company, .28, Loan dated December *8 deed large covered a amount of two contained lots that were included in to the deed from C. Holland and not controversy did include the land in We a statement here. find in the record & here that shows that the Holland Land the evidence Company organized taking Loan purpose ivas 1912 for in over -the owning land Holland Sanford, and each one-half -them capital stock, belonging and that the land the bank was then con- to veyed Bigbee to it. Defendant then L. offered Lemuel C. Holland, 14, to May 4, conveying dated all of 1869, Lots and Block Original .Plat Springfield, and deed from Holland to B. Crawford, A. Townsend, W. M. W. N. dated March and Townsend, 15, 1887, conveying 150 feet Street in on the south side of'Olive Springfield, Missouri, controversy which in and other covers the land land adjoining it on the east. Defendant then offered deed of trust Crawford on a one-third in land and its foreclosure interest b3^ purchase by show O. B. Holland. These deeds were offered to what the in Townsend-Crawford was as mentioned the con- tract between T. Sanford, B. Holland and W. B. wherein it re- cited that Mr. Holland known reserves himself by Townsend and property. Crawford All of deeds offered these objected they defendant by plaintiff ground did were SupReme Term, [April Vol. 317. CouRT Missouri, oe convey controversy, and were immaterial to issue the land objection overruled, think, and, was we in this case. involved correctly so. private by Bank bank owned C. B. Holland Holland was
“The prior incorporated 1896. It then T. B. Holland was son sixty except shares, presumably of $100,000, for and all of the stock $6,000, sixty par by value of was owned the two Hollands. B. Holland died then W. B. Sanford. C. shares were owned T. B. Holland. T. B. Holland and his went to his son stock shares, two shares, to- then owned ~W. gether owning all This seems to have continued stock the bank. stock, 940 shares of purchased until Holland’s 1911, when Sanford long thereby stock. How he retained of all the became the owner clearly appear. it does not paid the land in
“It admitted that the taxes on controversy year until she sold to each thereafter McGregor-Noe Hard- Stanley Booth, Mr. Townsend. C. treasurer controversy has a ware- Company, ware testified it, company barn Prior to the death house or on which their rented. July, of T. B. him. died paid rent was He Holland, the Bank. From that August, 1913, paid Holland For the rent was of the rent they until two-thirds time moved December out, rent was paid Holland. The Townsend, and one-third to Mrs. that at the per monthly. month, $33.33 It was admitted Com- Holland Land Loan death of T. B. stock in the Sanford, ~W.B. pany equal parts T. B. Holland owned qualify except he held order McDavid, one share to Mr. will T. B. Holland him to directors. serve on the board of death and, Holland’s Grady Sanford, after transferred his shares to except was held stock, share, trial, 1913 to the time Grady "W. Sanford. B. Sanford and his son Mrs. “George bought land from H. Townsend testified that he attorney, an it examined title, had an abstract of and had paid Mrs. He any outstanding or claim. no title notice $1,200. offi- consulted he was attorney, “Mr. testified that Cowdenj plaintiff. deed to made the cer of Bank the Holland before prop- had no This officer of him told *9 quit- make a bank erty, but Mr. had asked that "W. Cowclentold Company. Loan Mr. to the Holland Land & claim deed it would be party that if had no interest was deed then right requested. quitclaim all The to deed make executed.
1927} & v. Holland. Land Loan Co. HolláNd testified defendant, nothing that knew she
“Mrs. C. B. Holland to unrecorded from the bank until it was Defendant, 5, March filed for record then rested. testimony plaintiff then “The offered follows: “Harry Nelson testified that had been he connected with the Holland years. twenty-seven private Bank for It was first bank under the of C. B. & incorporated. name S’on, was afterward "Waswith Holland Bank when B. Holland sold his to stock W. money Sanford. Was note teller. The that was collected through passed ‘I
bank his hands. remember about payment McGregor-Noe rent on this building brick next to the Hardware store partly by owned the Townsend heirs. I used to receive the check company. account, bank kept that no rent but I have the just book in which the endorsements were It was made. entered as paid rent along month earnings once a with other items of of the usually day bank. It was paid month, the last one-third to the bank, and two-thirds to the Townsends. The per $33.33 amount October, month. In 1911, one-third of it went bank, to the two- thirds along to Townsend. I have several months there. The last item is gone December, appears and that is the last that to have money to the bank. to being the bank before divided. It was then divided I as I have stated. do not know far back how that extended, way but was handled that for considerable time. My records January, 1912, show the same amount for but both deposited. go through my amounts were It department, would not ' longer coming My because it was no bank. is, recollection that, deposited after one-third was Holland Land & Loan Com- pany, and two-thirds still went Townsend. The bank books show December, this rent never went the credit of the bank after 1911. At the time T. W. B. San- B. Holland sold his stock to ford, president, he was became Sanford cashier. Sanford then president, and Mr. continued until the con- Mitchell cashier. That Savings Ferguson solidation with the Bank, and then Mr. be- State president. years came Sanford went out of the three or four ago. bank, rent, deposited $11.11, one-third the earnings went anything into its After- the same as interest else.’ ward, recalled, up, had looked the matter he stated that he bank; one-third the rent 1911 went to the went Hol- Sanford; January, went Holland Land Loan Company.
“Guy S. with Mitchell ‘I connected the Holland testified: have been 1891; Bank since bank. am with books of the Have familiar traced this rent account find for the rent went to one-third part earnings, the credit of of its two-thirds Townsend. to Holland and Sanford. the one-third went Sup. 317 Mo. —61. *10 [April Term, You. 317. Süpbeme Missourx, COURT OK began business Company ivas formed and Holland Land Loan
Tbe of Holland and Sanford 1913. Tbe account January 1, about and one- Land & Loan Company, to tbe Holland then transferred T. January paid 1, 1913, until tbe death tbird the rent to it taxes for July, payment B. 1913. I after Holland in looked tbe first listed and also for T. Holland. This This for taxes as a in 342 feet Olive Street. one-third interest on controversy included land in and thé vacant next Presbyterian taxation purposes Church. It divided fifty feet. paid December 1905. The bank then the taxes on part paid and he on it. The east was transferred to known December, Olive Street lot was This continued to 1912. This (C. B.) got his lot, as the Townsend-Crawford but General through two-thirds was title Tbe other foreclosure Crawford. an account the bank. owned Townsend. T. B. Holland carried being objection rents credited I never knew of his to these He was partnership private account. account instead fairly I first list made of active the bank 1912. The on all paid for taxes was 1903. From then until property. divided, the Olive Street It was then part. fifty the other up on the west and T. B. Holland on kept watch on very man, Mr. Holland was a close close business This witness then paying his taxes.’ rents. He was careful about I, H and are deposit slips. these, Exhibits identified Two several H dated December handwriting Exhibit in the T. B. Holland. 30th, year follows: given. items are as but the is not follows:.$383.33
“Checks as 33.33 “Barn. $350.00 “McGregor-Noe December rent
“Deposited “(Signed) T. B. Holland. has the year given, and April 30th, but “Exhibit I is dated following: follows:.$383.33
“Checks as 33.33 “Barn. $350.00 “McGregor-Noe
“Deposited “(Signed) HOLLAND. other stamped it. Three April 30, 1912, “This has the date 30, 1912, shows slips offered; April deposit these, dated were one of ‘Barn Rent.’ and marked deposited by $11.11 Sanford, Holland and 1927] & Loan v. Holland. Holland Land Co. handwriting May of T. B. Holland. Another dated is not deposited by T. but is not in his shows to be following: has the
handwriting, and follows: .$383.33
“Checks 33.33 *11 ss “Le $350.00 ‘‘McGregor-Noe following: May 31, 1912, of has the “Another .$33.33
“Checks as follows: 22.22
“V. B. Townsend . $11.11 1!MeGregor-Noe “Deposited by Holland Sanford.
“Grady payments Sanford Mr. Mitchell as of corroborated rent on the in controversy, barn on the land and identified a detailed year of deposit $11.11 statement which shows the each month of the 1912 in Sanford, the bank to the credit of Holland and and $11.11 each of 1913 up including August month to and to the credit of the Company. Land Holland & Loan He also testified that taxes on the fifty for 1911 and 1912 bank. rvere
“F. attorney, M. a will for T. B. MeDavid, testified that he wrote February Holland 19,1913. dated It was written from date furnished general Mr. Holland, gave description who the name of each disposed of legal tract of. Mr. MeDavid secured the de- scription of tracts, these various and went them with Mr. over did not he mention other real estate. The real estate described grouped divisions, the list was into certain then Mr. Holland changes, went over them and made some carefully taking such as one tract an- putting out one division and into finally other. expressed He satisfied, himself was then will spoke drawn. Mr. given Jar- of the vacant lot to Mrs. rett, and giving mentioned a did not mention reason it to her. He fifty-foot lot with the barn on it. That will a residu- contained ary making residuary clause ,(cid:127) case, his wife the defendant in this legatee.
“'W. Tatlow, D. Mr. attorney, last will testified that he wrote the MeDavid, which was drawn prepared from the Mr. changes margin were made as on the indicated notations his former will.
“W. B. the collec- corroborated the other witnesses as to of rents; tion also stated that Holland to deed from C. B. kept of its existence bank, and he had known
the time of its by this witness execution. Plaintiff offered to show op Term, [April SupReme Missouri, Vol. Court acquired by Holland was in the name held the land
tliat belonged bank, but the title in fact banking business, in the shortly that, convenience, Holland for the name taken vesting purpose bank for the death, he made deeds before land was afterwards that when the bank, and legal in the title objection testimony to this got proceeds. sold, dead was sustained.” was now ground C. B. Holland majority observed foregoing, statement After given, because had been of the evidence that full details opinion given to the contract of the construction plaintiff’s insistence Sanford, as shown 1911, by T. B. and W. August 26, regarded ivas to be contract, of that acts done after the their the case was settling contract, and therefore meaning of that point. weight evidence on to be determined nature of the ac- discussion of the in the briefs no little There is equity, at law or pleadings, whether one tion, made here; passed upon weight is to be whether the of the evidence case, is the by counsel, decisive of the question, the real discussed *12 ambiguous. given contract, and whether meaning to be men- Street dispute in that at one time the Olive It is not was a spoken property, and tioned, Townsend Crawford dispute not in 144 It is tract extended east and west feet. regarded as two later, it was purposes either that of taxation, feet, other, and extending ninety-four the east one tracts, to west. extending feet, from east directly involved, fifty tract here T. B. will of ninety-four-foot The tract is the one mentioned claims given Jarrett, and defendant daughter Holland as to his Mil's. by her the re- fifty-foot passed tract one-third interest in the opinion siduary and the division of clause. The discussion of counsel wheth- question judges Appeals, turns of the Court of T. B. August 26, between er the contract of reservation fifty-foot tract con- S'anford, W. B. Holland and referred contends, referred feet; or, plaintiff or to the troversy, whole Passing questions for ninety-four-foot tract. those only to the incorporate herein certain other time, it further to seems desirable setting facts, opinion forth majority statements contained acts of the summarizing and various transactions and existing after the and before and concerned, the circumstances majority we take from of the contract mentioned. To that end opinion following: intimately with connected directly are
“The transactions involved all men who knew long ago, the two matters which occurred and so about B. Holland matter, to-wit, the whole C. case rested Plaintiff’s both tried.
were dead before this case was title to following source primarily facts: The common & Loan Co. Holland. Holland Land 1927] to-wit, fifty of what is called involved, the west real estate Üie was B. Holland. C. C. Townsend the Crawford to this and other quitclaim deed a executed Holland Company, corporation, a on December Banking- 2, 1921. The bank executed March was recorded 1900. This deed 5, 1921. This deed re- plaintiff March quitclaim deed to a plaintiff’s chain of title This constituted March corded right to show its to recover Then the land involved. plaintiff warranty for, introduced amount sued defendant George purporting H. Townsend deed from defendant was followed $1200. consideration of convey land for a the same against and Town- brought suit defendant proof that heard, try land, and, after the evidence send to title to this Judgment against plaintiff went suit was as to defendant. dismissed that Townsend was an Townsend, the fact favor of based on without notice of the'unrecorded purchaser innocent for value case, not, did from B. the bank. The court C. Holland to pass upon any question. other partly by testimony offered, partly
“The other Banking following facts: Com- plaintiff, establishes the B. Hol- pany years ago private C. many started incorporated with son, it was and his T. B. Holland. capital $100,000. then C. Holland shareholders were sixty Mr. Sanford owned T. B. Holland and W. B. Sanford. son, B. Holland died 940 shares. C. shares, the two Hollands owned son, T. B. Holland. left all his will to W. B. stock, and Then T. B. Holland owned shares of August 26, 1911, when sixty until Sanford shares. This continued by then owned purchased W. B. 940 shares of stock of the bank. sole owner purchase became the about three shown that July, 1924, This case was and it was tried *13 State with the years prior Holland Bank consolidated thereto the note the bank. We Savings of Bank, and Mr. Sanford then went out always owned bank, incorporated, practically that was here this while until the death by B. Holland and controlled B. Holland and T. C. and after 1911, T. B. Holland until Holland, C. B. and then in 1921. The fact probably that B. until some time W. 1911 and years until all these that the Hollands controlled the bank kept in mind 192.1 should be then Sanford until controlled alone testimony. considering while other with the and the bank
“Looking dealings parties the of land following: tract property here, find involved we the a spoken originally and the Townsend Crawford city in the Street front of on the south side of Olive feet in- one-third an undivided Springfield, Missouri. Crawford owned SupReme [April Term, Missouri, Court of Yol. terest, and Townsend owned two-thirds the other interest. Crawford a executed of trust on one-third land to T. B. deed his interest the Holland, foreclosed, B. Holland. This trustee for C. deed of trust was and G. B. Holland became owner of one-third interest in the the Afterward, 1900, quitclaim land. C. B. Holland executed large estate, the for a real and all of this amount of Town- send and tract Crawford was included. deed was not recorded 3921, long until died, after both Hollands had and their interest passed the bank had parties. C. B. Holland died in other and left all T. B T. B. son, his Holland. his disposing then executed, various deeds to different times, bank, of the lands from C. described the deed B. Holland but whether claimed to will he hold title thereto under father’s or regarded because bank, he the owner then himself as he owning bank, 1,000 stock in he shares of whether and Sanford, owning and composing the two all stock of the bank its knowing board of acting consent, by common and directors, record T. title all the land withheld the was then B. permitted deed to B. the bank T. Holland to from the record execute directly appear. One of deeds for the does not joined by April 1905, in which was these deeds was he executed ninety-four feet of the heirs, conveyed Townsend the east frontage spoken 144-foot on Olive Springfield, Street McGregor. This Arch Townsend and Crawford deed was followed defendant, offered and its introduction Arch Mc- May offer of a defendant deed dated Gregor ninety-four feet same to T. plaintiff, this last deed McGregor. objection deed to On admitted. After excluded, later offered but B.T. Holland McGregor and his deed to the execution deed to feet, fifty of the Town- ninety-four west in 1905 the east feet and separately. There can be treated and Crawford were send ninety-four feet east question treated the no that T. Holland paid taxes his death. He from 3905 until of this tract as his own contention of it. The it, specifically and in last will devised on of one-third T. B. was also owner defendant here, under land involved tract, this fifty west feet of as re- passed Plolland, will of C. and that the same fifty in- feet Holland. siduary legatee under the will of was rented. it, volved barn wai’ehouse here had brick fifty feet was immediately ninety-four east of The other paid taxes the rent vacant. Prior to collected to re- continued 1911, on the tract. From 1905 to whole T. B. Holland fifty feet, on the pay ceive the rent and the taxes B. Hoi- August, ninety-four feet. taxes on the *14 1927] Co. v. & LoaN Holland Land Holland. sold interest the bank to W. B. Sanford written con- be presently paid
tract to discussed. The bank on the the taxes in 1912. The went to fifty feet rents Holland and during T, paid Part Holland, deposited this rent was to B. and he the to the credit of Holland parties and Sanford, the same August who the 26, 1911, purchase contract were to the real belonging estate -then to bank. Holland & the Land Loan Com- pany, the case, incorporated in 3912, began and January business 1, about to 1913. The rents went it in until death July, they the of T. B. and after that were col- residuary widow, legatee lected will, the under his in this case. and pay She continued to the rent collect the taxes until she sold ToAvnsendin 1921.” The effect of the contract between T. B. Holland "W. B. San- (cid:127) ford, particularly is the reservation made former the the major question subject in the that is most of ease. To devoted judges Appeals. attention of Court counsel of the parties contract, There is much the acts discussion of making. urged that that, after its Preliminary done is ambiguous; reservation therefore the clause the contract be acts of done must considered as- after meaning; finally, subsequent if certaining acts, these its along with his particularly of T. considered those acts, the reservation included prior conclusion is enforced summary we ninety-four-foot strip. For convenience use the prior and concerning acts of T. B. both of facts shown dissenting subsequent given in contract, as making of the announced opinion, forming conclusion therein the basis ninety-four-foot strip. that the included no more than the reservation “ McG-regor 24, when (1) May After The same is follows: two tracts— ninety-four feet, the T. Holland the east by Holland and fifty treated ninety-four feet—were feet and the ninety-four feet were tracts; (2) separate the taxes on paid T. the one-third Holland, and the taxes on 1905, the rents bank; (3) May fifty feet after were bank until fifty paid to the were on the interest in the one-third contract; (4) August the date of Holland-Sanford 26,. 1911, Holland’s were, until August said interest rents on after plain- Sanford, and death, paid partnership in- two B. Holland (5) T. Company; tiff, Holland Land Loan the rent April collected stances, 30, 1912, personally and December handwriting feet, his own fifty on the one-third interest Sanford; (6) deposited the collection to the account of Holland and ole- specifically described when B. Holland his will made he Supreme op Missouri, Term, [Apiil *15 968 Yol. CouRT ninety-four feet, but did vised the not devise the one-third in interest fifty the feet.” plaintiff’s theory
The is founded the case that the reservation in the contract W. B. Sanford and between T. B. Holland had ref- ninety-four-foot only. erence to the tract After careful consideration of all the evidence, the contentions of counsel and the diverse views majority dissenting opinions, in the we have reached the con- may reasonably clusion applied be held that the reservation fifty-foot ninety-four-foot both the tract the tract, conjunc- tively, to the whole tract of feet. ¥e are driven this conclu- sion certain facts is dispute about which no in there the evidence. First, it is clear that the term “Townsend and property” Crawford was a term which to apply the were wont to the whole of the property; and corporate capacity nest that the in its at the time the contract was had made, an undivided one-third interest in the whole tract of 144 feet. The was reservation of the “bank’s entire interest in property” go the so If beyond known. we the contract itself, and existing made, the was circumstances the time it into subsequent all the evidence of in parties, conduct of the we are a field of conjectures, dependent upon decision the becomes inferences way. not made, conclusive either When contract was T. B. Hol- the land and AY.B. in dealing S'anford with tire estate were real their By they sole stock bank. capacity owners of the of the the contract segregation taking jointly made of all real it to themselves estate, $1,738.30, for sum the the sum at which it was carried on then the signed by books Mr. Next, Sanford, bank. the reservation Mr. Holland himself reserved his own use out this real estate, “The bank’s entire known interest the Olive Street property.” By and Crawford the terms of the Townsend they property all dealing contract itself with the. which the were reserving interest, and T. himself the entire “known” as the Town- interest of bank in the made, send At time the contract was property. and Crawford T. interest of the bank B. Holland had title to one-third no better ninety-four-foot tract, had in interest than the one-third he fifty-foot counsel of the tract. This much conceded plaintiff. question presented is one of identification description reserva- affected reservation. necessary to inquiry was be ambiguous merely tion because knowu given out the made, point evidence extrinsic be made and could property. identification the Townsend Such Dixon, v. 77; 130 Mo. Turner Henderson, shown. [Calloway make at the time Mo. to exist Did circumstances shown 416.] 1905, a why after a reason description equivocal? There was desirable. might taxes payment division for purpose 1927] Co. v. Holland. Land & LoaN year acquired bad Mr. Holland tlie two-thirds interest ninety-fonr-foot part Townsends of the whole tract, remaining fifty Townsends retained their two-thirds interest feet, and the bank’s interest in the remained as whole before. The fifty-foot strip ninety-fonr-foot property; rental improved, strip plaintiff’s theory, was vacant. Under bank had an interest- ninety-fonr-foot plaintiff tract, because claims that the interest in that tract then was the reserved fifty-foot tract, had an interest in the it is because the interest quitclaim that tract which the claims now under his testimony gone enough from the bank. "When the extrinsic has far always show that there was a tract of feet which was referred *16 to as the property; Townsend and Crawford that the bank had an un- divided in property, the whole of this and the reservation as interest, written was of the bank’s entire then we think the extrinsic testimony showing purpose should not be farther considered for the of part that in the reference reservation was to of the whole. the testimony explain. That tends as much to contradict as it does to Acts by making tending done the to a to show contract after its interpretation by an or at variance with by them them the plain control; in contract, terms written the will not but the contract Ry. Equipment to be construed as written. v. Standard [Meissner Co., 112; 211 Co., Mo. Const. Webb-Kunze Const. Co. v. Gilsonite 629; Laughlin 161; Mo. App. v. Bottom Produce Co. Joplin, Mo. Olsen, urged App. Mo. It is that conten- not here the 181.] disadvantage. party tion of either misled other to his the The bank T. B. Holland con- ratified the contract. The bank and veyed by except the real the Townsend estate affected the contract, and Crawford omission of the property, 1912. The December, was indicative Townsend Crawford from those deeds T. ratification, only by by W. B. Sanford not the B. Holland, expressed contract. Six- the reservation as the reservation, prop- teen months after the the date of the contract erty, other than the Townsend and Crawford
by by company. Mr. the bank and B. Holland T. testified he knew of the existence of the deed made C. Holland in the from the time of its execution. As result of contract made in all the stock of the he became the owner of was, conveyance effect, was no the bank itself. But there fifty-foot strip controversy, included which was bank; and, the old deed made C. B. Holland to the lying B. Holland in the T. unrecorded, there was no deed made capacity sub- If the matters sole devisee will. under father’s sequent minds, they much, as our the contract be looked at tend conjecture throw into of the reservation doubt and the construction SupReme [April Term, Missouri, Court oe Yol. up. Holland, during years It is true that T. B.
as to clear the two following over, contract, of his life turned permitted Sanford, over to Holland and to be turned one-third monthly fifty-foot it is tract, but also true W. B. rental of the with party knowledge Sanford, the other contract eight years following circumstances, protest, and without Holland, permitted death of T. B. to collect rent pay During deed of C. B. the taxes. time the Holland to knowledge, the bank of which he had remained unrecorded, long bank of which was for a took no owner, he time sole action. It specifically ninety-four-foot is true that T. B. Holland devised the Jarrett, fifty-foot specifically tract and did not Mrs. devise the twenty tract. to Mrs. reserved Jarrett, his devise he feet off the alley ninety-four-foot “adjoining,” side of tract as an he said, property” we which, it, “the Townsend understand referred fifty-foot strip in- which the Townsends had the two-thirds owning only ninety-four-foot regarded terest. If he himself tract, readily no why, reason is seen he should estab- will, have fifty-foot alley upon lished on that an abut. tract tract would alley If he himself, fixing reserved an interest in the whole to part readily specifically devised is more understood. evidence does not show what owned Holland was specifically devised. Upon question the vital of what was included the reservation contract, testimony, trial court had view all within *17 general. finding drew its own Coun- inferences as to facts. was sel question appeal discuss in action somewhat the whether the is to law, equity. be in considered one at The action for money governed had and received by equitable is one at but is law, principles. 42 Corpus page money Juris, 28: “The action for always law, and received in tend- has been one favored the ency scope levying is to being action, widen its a flexible form —it doctrines; on equitable, legal tribute strictly that, well as so it has become axiomatic that the has re- action lies where ‘the defendant money which, ceived or possession plaintiff, obtained of the the ” equity good conscience, ought pay plaintiff.’ over to the he to It is conveyed at claimed the time defendant to Townsend 1921, she knew of the existence of from C. B. the deed Holland bank, or knew "W.B. of the reservation in the contract made between Sanford and T. good B. Holland. faith in that does Her transaction not of itself a plaintiff constitute defense. claim of is derived from quitclaim the bank. At the time the bank made its deed of plaintiff, the title to the land Townsend as an inno- was vested purchaser. cent controversy part lands If the land in was a of the bank, contract, the carried the sum stated the books Land & Loan Co. v. Holland. 97.1 Holland 1927] by T. B. Holland included the interest then, the reservation whether part, received the consideration only in the whole or real estate. It was out this, in that in lieu of such stated contract W, was carved B. there as between T, for his and benefit. to B. Holland own use reservation question of whether deed by There is discussion counsel of Passing in 1900 was by B. Holland delivered. made to the bank C. may that any legal question, be observed discussion of conveyed a num- deed from C. B. Holland the bank considerable in the Townsend and land, ber of tracts of other than the interest under Crawford tract. T. B. Holland was the sole devisee the will years following, individually, C. B. Holland, and in the persons the deed made various a number of the tracts described C. B. Holland. that he knew of the existence W. B. S'anford testified executed, and it deed, time it was must the C. Holland presumed it; that T. B. Holland knew of when little more but, year stock, and signing than a of the contract of sale of the after the subject it,of were fresh when the conditions of that contract and the by T. bank or B. Hol- in their no either minds, made conveying any part Crawford tract. The of the Townsend and estate, contract carried on books recited that referred to real contained $1738.30, of the bank at but whether the books the sum description shown. of the several tracts was not theory Avholeof the Townsend On the that the interest bank, but that the tract assets of the Crawford was taken out of the ninety-four- reservation T. B. Holland referred made why fol- satisfactory explanation is made strip, foot no C. lowing contract, having first recorded the Sanford, or to deed, Holland and did not make a deed to strip; or, that, if not plaintiff conveying fifty-foot company, did not v’hy deed, being record, T. Holland such withheld from the strip. fifty-foot convey interest one-third right of plaintiff’s if claim be founded event, Townsend, the fifty-foot strip, before the sale made, years that sale eight fact before attaches that seven or joint- from Sanford bank had received the consideration and, property; ly appropriation them of the severance and W. B. Sanford agreed between out of the so severed it prop- a certain individuals, and T. B. *18 and benefit. his own use ertjr Holland for should held Scott, 13; v. Mo. (Patterson 25 Mo. Scott Camden, Cases cited given to evidence weight 300) to be others, and illustrations of the con- contract, have been a by parties of acts done after the ways. both inferences Upon in this ease sidered. that there are in- the one-third right a burden was show such op Term, [April Yol. 317. Missouri, Court SuRRemb i,crest, defendant, good fifty-foot strip, as that conscience If received her. justice plaintiff the sum and should pay Sanford and Holland received pursuant contract between they for themselves, the contract made consideration, and ratified say are unable to under all evidence and for the we present many unexplainable things inferences case—the finding erroneous, might the trial court’s be drawn —that concurs; Eeddon, G., Ellison, is affirmed. judgment and therefore the sitting. not J., by Linídsay, G., adopted is foregoing opinion
PER CURIAM: (cid:127)The concur, except Gañil, opinion judges as the of the court. All J., sitting. Company Manufacturing Bogie, Adminis v. Mord M.
Sandwich W. 56. Losee, Appellant. S. trator of Estate of Milton H. 298. One, July 30, 1927. Division Change against Amended Statement: 1. Demand Estate: LIMITATIONS: claim, filed in the circuit :a of Cause. If the amended statement of statutory filing against expiration period demands after the for court timely estate, shifting filed in the action a decedent’s probate cause of are is a of the cause of court, departure up different a new and and in fact and sets a limitations, departure action, and bal- and if such is barred raised, properly judgment the claimant cannot stand. in favor of Accounting: against Law Estate: ACCOUNT: Demand 2. ACTION ON relationship estate, against which states the Action. A between the claimant been decedent’s demand decedent, which show and sets forth facts the claimant and accounting accounting- has and states that no is entitled to an due, money judgment made, prays the amount found to be and for a for probate accounting. which contemplates A court demand filed business; that agent manager claimant’s that decedent was states claimant, moneys, sold such, accounts of notes and he handled the money sale, collected which claimant carried for the merchandise use, money sales, appropriated and was therefore own such indebted to claimant amount, prays in a named at the time of his death amount, common-law judgment statement of the old for said is^a law, account, under the common law action at both and is an action of side statutes, the law being at law is triable on an action under the court. The distinction between Action at Law: Referee. -: Triable prac- recognized the various equitable actions is still common-law greatly An acts, reduced. although actions has been the number of tice equi- distinguished legal account, are the items of action of court, by (a) the court without table, side of the tried on the law is to be (c) jury, circumstances, (b) a referee or jury, named under purely up long items of various made involves accounts the demand where legal in character.