*1 conclude grantor that never intended by this conveyance to give the property described in the grantees deed to the named there in, and hence, no title passed. Their refusal to return property to plaintiff on his demand under the circumstances in evidence equitable warranted intervention. [Wilkerson v. Wann, 16 S. W. (2d) 72, 76; Clarkson v. Greely, Mo. 114.] did the court fail to take into consideration payments that
defendants testified had made, for the record shows а finding as follows which supported is well by the evidence: “From the itemized receipts- payments produced on the prop- erty plaintiff defendant, payments and the for re- pairs and taxes necessary expenditures property, paid interest loan, considering the first plaintiff both what the paid has and also counting the defendant 'and a reasonable rent for the property use of the which occupied defendant has since September, 1922, per $25 the reasonable rent month, the ex- penditures by defendant are more than offset deduction fo.r amounts, occupancy property use of and the two both what owing for use defendant and returned to equal finds indebtedness are so near the court no property, excepted new is overruled way, either and the motion for a trial to:”' plaintiffs say error also the deed was exe-
Counsel wife, husband and and that estate of the wife to a cuted there is no evidence"of breach disturbed because should n is substantial evi on ^®1’ There Part. this plaintiff executed knew that when she deuce that an absolute thereby make intend did not he deed This contention her husband. her and property gift error. against plaintiffs ruled also ... judgment of the cause the trial error Finding no reversible the. All concur.
is affirmed. Surety York New American ex rel. The State Appeals. Judges Louis Court of St. George F. et аl., Haid 100. (2d) One, July 9, 1930. Division
Bryan, Williams & Gave for relator. *3 Early Lodge respondents.
Marion C. and Ivon *4 bringing of the St. ELLISON, up the record C. Certiorari Co. v. Louis Court of in Wellston Trust a cause entitled being Surety the York, American therein Co. of New the defendant Appeals opinion reported relator here. in The Court (2d) 23, for and reference is' made thereto statement a fuller question respondent presented facts. The the ultimate whether judges controlling of this court contravened the latest decisions holding affirming judgment County of St. Louis the Circuit Court indеmnifying the the relator liable on its insurance or bond Company against by robbery. Trust loss year For Company Peoples and a half had been a the Motorbus depositor in Trust it. Company, the period as call bank we shall hereafter During deposits'were Motorbus sometimes made Company at Company Wellston, house of the Trust and at other were Com- times received the office of the at Motorbus pany city by in the employees same cashiеr bank or other purpose. sent there The for the practice latter had obtained knowledge eighteen whole months aforesaid with all the active Company executive officers of bank, but was the the Motorbus only day Sep- customer whom this One service was extended. tember, 1926, employee bank cashier return- and another were ing such up mission $4500 were of about robbed just which had theretofore been turned over to them Motorbus Comрany. The judg- bank suit followed and the had aforementioned ment for the sum. whole usual course followed the bank and its customers when money deposited was that duplicate customer make out would deposit retaining slips, giving one and bank, one or, to the specifically, employee officer handling transaction. The bank, or such employee, would then credit enter.a customer’s pass book. In the case of done, Motorbus all this was deposit whether the received at the bus bank, at officeor *5 pass
the deposit form of slips book and employe^ súch as other were customers, generally, had and used. for funds received at .Credit the bus office was not enteréd the ledger bank money until after the
954 bank necessarily true, because infer, we (as the the hank reached receipt of bank). evidence of the But no
ledgers kept at the were entry Company than the other money given thе Motorbus to The fore- over. deposit was turned made when the pass in its book handling robbery in day of the going routine was followed on Company day Trust en- in next involved this case. The funds account of Motorbus ledger credit deposit its a to tered on Company for the thereof. amount provided: sued on
The or bond in consideration of Surety Company York, of New “The American agrees Company, Trust indemnify Wellston premium annual to any against loss sustained оf insured, the direct hereinafter called money pecuniary has a securities, both, in which insured or or bailee, agent, or and whether interest, or held the insured as trustee through robbery, larceny, theft, or or therefor, not the insured is liable holdup by money are whomsoever committed while or securities such twenty in in transit within of of the insured’s offices and miles ” custody-of any employees. its defining pur- powers Section Revised Statutes poses companies, proviso trust in contains added the reenactment our banking 1915, pp. providing in 103, 165, laws Laws company “no trust shall maintain in branch this state a trust com- deposits pany or pay except receive checks own provision A appears house.” similar 11737 respect banks. to The Court held these did not relieve statutes the relator or render void or voidable at its instance the transaction whereby the Trust deposit received the from the Motorbus Comрany at the latter’s office. ruling relator contends this con- travened certain decisions of this court, which we cite the succeed- ing paragraphs, giving gist also holding in each. Sprague v. 104 Rooney, Mo. 349, 360, where specific performance of a form lease in the aof contract for the sale of land was denied in view of Section 3816, Revised Statutes (Sec. 3547, R. S. 1919), forbidding leasing bawdy land for purposes house making such act misdemeanor. Strip Chеrokee Live Stock Assn. v. L. Cass & C. Co., Mo. 394, S. W. given suit on a note defendant under a lease which the latter took from an Indian tribe and sublet defendant. The lease was held void as a Federal statute providing: “No . . . lease . . . . . tribe of Indians, shall any validity be of law equity, unless the same be by treaty made or convention pursuant entered into to the Consti- tution.” First Natl. Bank of Kansas City v. Guardian Trust 119, L. R. A. 79. The defendant Trust Company claimed it executed the note only in suit as accommodation
955 for party; maker or indorser a third and that such act was outside powers, its own charter vires and ultra void. It was that Section true 1427, defining 1899, powers Revised Statutes companies of trust authority subject. conferred no such on opin- silent The ‘‘ quoting says, ion corporation from case: can itself another No bind hy prohibited expressly stockholders a contract its charter general or the quoting Pennsylvania law.” said, further But a ease: (ultra vires) “The law never sustains of a defense this nature regard out defendant; of for only imperative a it does an so where rule public policy requires of it.” held liable. The defendant was Highlands In Amusement v. Park Amus. Tri-State Co. Forest 192 404, 419, 511, Mo. 90 S. 4 A. W. 111 A. S. R. L. R. (N. S.) foreign 688, corporation, on plaintiff, an unlicensed sued performed a 1024, contract to be Stat- this State. Section Revised 1899, provided utes foreign corporation a “shall au- that before be ’’ permitted thorized or it shall main- trаnsact business in this state public legal may tain a upon here obtained office “where service be it,” required Secretary 1025 with State and Section to file it copy a 1026 violat- provided corporation of its etc. a charter, subject ing preceding fine of less to a the two sections should be right $1,000 a or action than upon and should be to maintain suit denied are These three sections demand in the courts of this State. opinion 1919. The 9793, 9792 Statutes 9790, Revised Sections validity of business first two sections mentioned struck at therewith, compliance or contracts entered into before transacted third absence of the would invalid even in the that such contracts be of suits imposing forbidding prosecution penalty section Mullett, Co. v. Parke, Another cited Davis & court. similar case 245 168, 461, 149 S. 462-3. 173, Mo. W. 246 196, 296 Francis, 169,
In Bank of Mo. National Commerce 43 67 L. S. W. U. S. Ed. certiorari denied Rep. money bank had Sup. Ct. sued to recover it certain, purchasing expended non-negotiable only payable out *7 406; 404, State 647,,274 W. S. Monckton, 641, 308 Mo. v. Bassen 930; Kusnet 927, W. 526, 275 S. 539, 310 Mo. v. Nelson, Nolen ex rel. sky All 50. three 47, 143, 155, Mo. Security Ins. 313 Co., v. Stat 13279, Revised 13276 Sections at cases are directed of these any person to for unlawful provide: shall be 1919, which “It utes fictitious name under a state engage in transact business in this ;” . . secretary state registering with the same without first The court said these misdemeanor. a violation of law a make implicаtion void a expressly by render neither nor statutes merely require but name, by party a fictitious entered into under It penalty for failure to do so. registration impose thereof party unregistered further one under an fictitious when dealing whom is another, name if the latter knows with he deals Many estopped complain. no fraud decisions results he will pointed practically all of are reviewed and the that in fact out is malum in se. The them transaction аttacked was itself concerning foreign distinguished ground corporations cases are on the artificial, legal 4, such protected entities are not Section II, Article of our State Constitution and could be excluded altogether, persons whereas natural individual have certain inalienable rights. State ex rel. v. Natl. First 297 Bank, 397, 414, Barrett Mo. 249 S. 30 918, A. L. R. aff. 263 640, U. S. 486, L. Ed. Sup. Rep. original Ct. 213, quo proceeding warranto instituted Attorney-General. The case holds a national bank engage cannot branch in this State, express view of the provisions of 11737, Section Revised Statutes 1919, counterpart of Section 31799 applying companies. to trust v. Rys. Moorshead Co., United 121, 261, Mo. 165, 96 S. W. 271. plaintiff The personal sued for injuries resulting from violent starting aof car on street which riding she passenger. as a The defendant liability disclaimed ground being that the car was operated by the St. Louis Company Transit to which all property its leased, had been leasing such being authorized Section 1187, Re- vised (Sec. Statutes 1899 1919). 10122, R. S. plaintiff replied against that it public would be policy to permit a carrier to lease its property thereby escape liability for torts thereafter committed operation in the of the road. This court said: very highest “The evidence of public State is statutory law;” held that since permitted the statute leasing and did provide operating against retention liabilities the lessor, cоuld not recover.
Harrington’s Admr.
Mo.
Crawford,
holds
indemnifying
against
a bond
omitting
an officer
loss for
to execute
process
final
public policy
recovery
and no
had
can be
thereon.
Perpetual
Blair v.
Ins.
10 Mo.
the last case cited. We shall discuss it opinion. later liberty inquire I. We are not into the at correctness of the Court construction Appeals’ Revised Statutes 1919-—(cid:127) holding void the statute did render the act of Wellston Trust
Company receiving dеposit People’s Motor- bus at province the latter’s office. Our sole previous to ascertain whether the conflicts with controlling decisions of this court. rel. Tum ex [State Cox, mons v. 282 W. The re 694.] precise question lator does not contend the has ever been passed only Supreme cited, on here. The Court so ease ever decided *8 bearing advised, part far ex as we on that is State are statute Bank, 619, 297 Mo. supra, 397, rel. v. Natl. Barrett First 11737, companion Section A. L. R. which holds that under 918, authority banks in this no maintain branch national banks have to thing. opinion the relator contends very different But State —a apposite general and announced in other cases principles contravenes rulings on similar facts. based by again going the cases cited not think over do so. Without We already fully is suf have reviewed them too the relator —for we —it say they prescribe which it incumbent no formula madе ficient to judges than did. respondent rule cause as to otherwise particular may a or granted, true, It and is that when be m'atter) (or a for corporation person, transaction of individual that by “expressly prohibited law,” is is void. Bank of Com it [National may Francis, supra, 196, v. 296 Mo. l. 246 S. l. c. merce c. It 333.] rendering granted further be that some statutes should be as construed illegal every specific particular any void and in the act done thereby though line of a course of business banned even this —and express effect; the statute no so, also, contains to declaration sometimes, imposes when penalty the statute no for a violation thereof. Highlands The case of v. Tri-State Amusement Co. Park Amus. Forest Co., supra, 192 Mo. 404, 90 S. W. A. A. S. R. L. R. S.) (N. is stressed point. the relator on this statutory against
But it prohibition is specified true that a course of business always conduct is a denunciation as tantamount void of every each and сorporate individual act at variance therewith. No better illustration of can that fact be found in Section than “no cor provides which Missouri Constitution XII, Article of the authorized expressly than that other engage in business
poration shall any period for estate hold real it . . nor shall its charter proper may necessary be as except such longer years, six than long settled been the has It legitimate business.” carrying on its law fundamental our рrovision of even this this State that doctrine in nullify particular suitor, not, private instance of does at the holding real carrying on business corporation of a transactions fully executed, they have been of the section after estate in violation Poultry Brewing v. Mo. Co. party. other executed [Schlitz 815; & Farmers’ 229 S. W. 287 Mo. & Game 758; (2d) 755, 12 W. 321 Mo. Harrison, Traders’ Bank (2d) Guaranty Co. v. Sessinghaus, Title Trust 1001.] be others of like tenor just cited
Neither can decisions provision distinguished ground that the constitutional forbids the specifically mentions general, whereas company except own reception deposits at its a trust hold- provision with reference to house. For Constitution Brewing case, ing Schlitz real as is said in the specific, estate many our (and these in quoting decision, from a Texas “in cases authoritative) specific but the statute has a most when estoppel implied application, at the same against the doctrine time changed.” In beneficiary of an executed contract though words, legislation explicit other in its reference to things yet law whole no fair forbidden if on a construction of as a implication arises that shall be void— acts done violation thereof put or, implications way, parts it another if from other equalize might statute or overcome whatever inferences otherwise be shall be void— n drawn individual act proscribed of the clаss then such void, acts will party not be held performed who has his side of the transaction. *9 One of the quoted Brewing authorities cited and from in Schlitz the
case, supra, and the Texas case referred to therein, is National Bank v. Matthews, 98 U. S. 621, 188, L. Ed. where a national bank made a loan security on real estate in violation of a Federal statute which by admittedly implication clear forbid of that identical transactions sort. It was held the loan was not void. said, quoting from court an earlier decision of U. Supreme the S. Court: “The statute must be examined as a whole, to find out whether the makers meant that a in contravention of it was to so void, be as not be to enforced justice.” in a court of Examination will show that usually the decisions of this court have been by influenced certain considerations, extraneous such as the un- derlying purpose spirit of the gathered statutes involved as from the whole text the facts; by attendant the nature of the classes of acts forbidden—whether malum in way se or in some detri- Security Kusnetsky Ins. in v. public welfare. Thus mental to the out that 155, pointed 281 W. l. c. it is 50, l. c. S. supra, 313 Mo. gambling contracts, aimed the statutes were at in number of cases bawdy dealing public enemy, with labor house, of a the keeping like; leasing of and the one of Sunday, lands, 'Indian on in State ex rel. Conn. of Motor Act reviewed purposes Yehicle 537, prevent 268 S. to thefts. Cox, 87, Cо. v. Mo. Ins. Fire foreign corporations in regards it is said unlicensed And object place them the law is to on an Tri-State Amusement of case corporations make them accessible to equality with domestic and to rights going may our citizens their without suit this State so enforce foreign commenting forbidding jurisdiction. to a In statutes business under a fictitious court has transaction of name the said transactions, nullify particular though specific the law did not intrinsically aсt, of the if were innocent from violative and free right engage fraud, because the traffic in- to business herent, right belonging persons natural to individual and the statutes they attempted would be if unconstitutional forbid it. to Garanflo, So in Hunter Mo. 741,W. case not by relator, corporation cited it pledging the act of a property given its purchase to secure a note for the capital own stock void, was ultra vires and because it amounted to a reduction capital of the assets in violation of Section Revised Statutes Constitution, purpose and the spirit being of these to preserve corporate capital intact the benefit of creditors and stockholders. continuing
Without this abstract discussion further our conclusion presence that the mere statute, in the Revised Stat- forbidding proviso utes a trust company from maintain- ing a receiving branch deposits trust officeand except at its own banking house, did particular itself render void the transaction complained of by any general reason this principle or fixed ease of statutory construction controlling announced decisions of court; many this things beside the mere letter may of a statute enter into its varying construction, these legisla- considered, tion and that no decision cited the relator can be said to be based on presented facts so similar thosе this record as to respondents’ make opinion conflict therewith. II. The relator stresses also the of Moorshead v. Rys. case United Co., supra, 203 l. Mo. c. S. W. l. c. where it is said: “The very highest evidence of public policy state statutory is its argument law.” Relator’s from this decision seems tiiat wlienever a statute is public violated violated, and that the St. Louis ought Court of Appeals *10 quashed to be because it to failed hold the act of the Wellston Trust was void here involved deposit particular receiving the Company in What question. that go into not shall against public policy. iBut we as by the covered acts to with reference of public policy the
the State (In e statute of the construction from a determined statute, must b 883); R. 51 A. L. 492, 499, 316 Mo. Rahn, re of Court Louis St. question the already held, was a have and that we : was determine. Appeals free to Court the of urges opinion that particularly III. The relator Ins. Perpetual Appeals Blair v. conflicts closely parallel insisted, were facts Am. where, Dec. it is e company insurance In cas that found here. those surety of one signer bond personal sued a in that the was The defense- agents defaulted. who had vio banking business a conducted company had surance agent was statute, and that express charter and an lation of its This court defense assigned service. sustained to that engage in authоrity to company -no ground had the insurance strictly con surety to be undertaking of the was and the strued. In point reasons. the first
We do not consider the two case mere place policy, involved here is an insurance the contract strongly obligation most personal surety, and was to be construed Deposit (Mo. [Fidelity & & Div. insurer. Co. v. Gill Sons place policy S. W. In second insured 2), 705.] Company “against Wellston Trust money loss ... direct pecuniary interest, ... in which the hаs Insured agent, collateral, the Insured as or as bailee, trustee or whether through or not Insured is liable therefor . . . rob- bery, . . . hoid-up Property . . . theft while the twenty transit within miles of of the Insured’s covered offices provisions hereunder . .” In argument view of these no needed Appeals to demonstrate the regard Court of bound to Perpetual controlling Insurance especially case authority, when it is respondents (as remembered ruled we have said wеre do) free reception that the deposit by the Trust binding as between it and the Company. Motorbus IV. Finally the relator asserts the Court of should quashed singled because it part out ruling based its thereon, ignoring pertinent provisions other to the
contrary thereby violating the rule contracts be construed in their En entirety, should as declared in right (Mo. v. Schaden en Banc), many cases. This assignment, it, other simply as we see in effect asks us to construe independently thе whole and to declare the
961. Court of erred in its construction —for it contended is-not this court passed has ever on a policy. similar This we cannot do ' proceeding. certiorari quashed. Writ Lindsay Seddo.n, GO., concur. foregoing opinion CURIAM:—The PER Ellison, C., adopted
as the All of the court. judges concur. Henry A. Trustee of Estate Renard, Lan Charles As Vest Appellant, Edward L. Butler Bankrupt, et al. caster, (2d) 608. One, July 9, Division 1930. appellant. & Grant
Grant notes designated fund, theory nо collateral that it had trust authority quot- of paper. said, charter to deal kind court that This ‘‘ ing an from earlier case: ultra The defense of admissible vires fully side, where the contract has been executed oh one unless it prohibited expressly law;” and ruled the bank for and other that reasons. State rel. Conn. Fire Ins. Co. v. Cox, ex proceeding quashing a certiorari Springfield Court reported Mo. App. 386, as in 215 178. These Act, cases deal with Motor (1st Sess.) Vehicle pp. Laws Ex. (e) 76, 90. Section provides, thereof substantially, shall “it any person buy unlawful or sell” motor vehicle without assignment ownership the certificate of specified, in the act Su- void.” fraudulent every such sale “shall be statute violation made in opinion held a Court sale preme analogy ruling being based title, no passed void and particularly statutes, dealing other in cases reached conclusions mentioned. concerning foreign corporations, heretofore those