on railroad property, to extend the same on a separate tax book, to be known as the "Railroad Tax Book," in which he shall place a description of each tract of land, town lot, or other real estate, etc. By section 7737, all the property of the railroad in the county is made liable for all taxes assessed against such company in said county, and a lien is reserved to the state to enforce the payment thereof.

It will be observed that while by section 7728, supra, it is expressly provided that all taxes on railroad property shall be levied and collected according to the provisions of that article, no provision is made thereby for issuing tax bills, as in section 7682, art. 6, c. 138, Rev. St., concerning the collection of back taxes on real estate, authorized by it. By this section it is provided that all taxes sued for shall be set forth in a tax bill of said back taxes, duly authenticated by the certificate of the collector, and filed with the petition; and said tax bill or bills, so certified, are made prima facie evidence that the amount claimed in the suit is just and correct. Only by this provision of the section last referred to is such evidence admissible, which is clearly confined to the collection of other revenues than taxes against railroad companies. The legislature, by article 8, supra, has seen proper to provide different modes for the assessment and collection of taxes against the property of railroad companies from that of other corporations and individuals, and the mode thus indicated should be substantially pursued in order to collect them if payment is refused, or such taxes are not paid when they become due. This is plainly shown by the sections of the statute before set out, which nowhere make a tax bill evidence. Although not decided, it is plainly intimated, in State v. Hannibal & St. J. Ry. Co., 113 Mo. 297, 21 S. W. 14, which was a suit for back taxes against the defendant therein, that a tax bill like the one under consideration should not have been admitted in evidence. We do not think a compliance with section 7734 (which makes it the duty of the county clerk, as soon as the back tax book is completed, to make out and certify to the secretary or chief managing officer in this state, of the proper railroad company, a statement of taxes levied on the property of such railroad company in his county, including its total valuation, as shown by the returns of local assessors, including lands, etc.) a condition precedent to the collection of taxes by the proper collector, or the institution of suit therefor by the proper authority, as it is only directory, being for the convenience and information of the officers of railroad companies. The right to collect the taxes as provided by law in no way depends upon its provisions, and a noncompliance with them is no legal excuse or justification for the nonpayment of taxes by railroad companies. We will not, however, undertake to pass upon the sufficiency of the petition on this appeal. For error in overruling defendants' objection

to the introduction of the tax bill in evidence, as well also as in refusing the instruction in the nature of a demurrer interposed by them to plaintiff's evidence, the judgment is reversed, and cause is remanded.

GANTT, P. J., and SHERWOOD, J., con

cur.

STATE ex rel. JONES v. JONES et al. (Supreme Court of Missouri, Division No. 1. Nov. 26, 1895.)

EXECUTORS-PURCHASE FROM LEGATEE-FRAUD-
ACTION ON EXECUTOR'S BOND-FINDING
OF PROBATE COURT.

1. An action on an executor's bond, for a money judgment for plaintiff's distributive share, is an action at law, notwithstanding the allegations of the reply that an assignment from plaintiff was obtained by fraud, and a prayer therein for equitable relief.

2. A purchase by an executor from a legatee of his interest in the estate is not void; the trust relation merely putting on the executor the burden of proof, where the contract is, in a proper action, attacked for fraud.

3. In an action at law on an executor's bond by a legatee, to recover his distributive share, an assignment by plaintiff to the executor of his interest cannot be attacked on the ground of fraud of the executor, by false representations and concealment as to the value and condition of the estate.

4. The finding of the probate court, on final settlement of an executor, that a certain person was entitled to a certain sum as his distributive share of the estate, and its order that the same be paid him, as such share, do not prevent the executor interposing as a defense to an action therefor an assignment by such person of his interest to the executor before the final settlement.

Brace, C. J., dissenting.

Appeal from circuit court, Warren county; W. W. Edwards, Judge.

ROBINSON, J. This is an action upon the official bond of J. L. Jones, as executor of Julia A. Dearing, deceased, and his sureties therein, for $397.46, the alleged distributive share of the relator, P. H. Jones, in the estate, as legatee under the will of said deceased, as found on final settlement of said executor to be due and owing to relator, and ordered by the probate judge to be paid him. The petition is in the usual form, charging the execution and delivery of the bond; its condition; the executorship of defendant, and that by the will P. H. Jones, the plaintiff, was entitled to one-fifteenth of the estate of Julia A. Dearing, deceased; the final settlement of defendant, and the order of

the probate court to pay relator $397.47, as his distributive share; and prays for judgment of the penalty of the bond, and execution for the sum of $397.47, with interest. The answer was that the relator had, prior to the settlement of the executor and the order of distribution by the probate court, sold his interest in said estate to Juliet A. Jones, and had, for value received, in writing duly executed, assigned and transferred through her agent, J. L. Jones, his interest in said estate to said Juliet A. Jones, and that the executor, having due notice thereof, paid the sum of $397.46 so found as the interest of said relator in said estate to Juliet A. Jones, and took her receipt therefor, together with the other legatees and distributees of said estate, and deposited the same with the papers of said estate, with the filing of the probate court duly indorsed thereon, and that, having paid same to relator's assignee, nothing is now due him from said estate. Relator then filed his reply, admitting "that there was a certain transaction between him and defendant J. L. Jones prior to said final settlement, as is alleged in the answer herein, and that the assignment which defendants claim was made was the result of the transaction; but plaintiff alleges that after said transaction between him and defendant J. L. Jones, and on the final settlement of said estate by the probate court of Montgomery county, the said distributive share of the relator, as is alleged in the petition herein, was found by the probate court to be due and owing to relator, and was thereupon ordered by the probate court to be paid to relator, and asks judgment in accordance with the prayer of the petition herein. And, further replying, says that the assignment was made to J. L. Jones in his own right, while he was acting as executor, and not as agent of Juliet A. Jones, and that same was obtained from relator by false and fraudulent representations and false and fraudulent concealment concerning the condition and value of the assets of said estate, and that same was unknown to relator, and that relator relied on the statement and representation of defendant J. L. Jones on the making of said assignment; and prays the court to grant him such relief as he would be entitled to had said assignment not been made, and for such other relief as may be just and proper." Jury being waived, the case was tried by the court, resulting in a finding and judgment for defendant. There was but little conflict in the testimony at the trial of the case, and we have given the statement of the facts, so far as they are not admitted in the pleadings, as same is found in the opinion of the St. Louis court of appeals when case was in that court for determination.

Relator, on the day and place therein named, executed this assignment: "Know all men by these presents, that I, Patrick H.

Jones, of the city of Galveston, in the state of Texas, have this day, in consideration of the sum of two hundred dollars ($200.00), to him paid by J. L. Jones, of Montgomery county, Missouri, bargained, sold, assigned, and transferred, and by these presents do bargain, sell, transfer, and assign, unto the said J. L. Jones, all my right, title, interest, and claim in and to the estate of my aunt, the late Julia A. Dearing, of Jonesburg, Montgomery county, Missouri, which said estate is now in process of administration in the probate court of Montgomery county, Mo. The said interest hereby and herein bargained, sold, and transferred to said J. L. Jones to include all my right, title, claim, and interest in and to all the property of any kind and description whatsoever belonging to said estate, and do hereby guaranty the title to the claim hereby assigned and transferred to be free and clear of any incumbrance, liens, or debts by me made, and that the same is free and clear of any claims, liens, or incumbrances. Witness my hand and seal this 28th day of August, 1886. Galveston, Texas, 9th/7th/'86. P. H. Jones. [Seal.]" Thereafter the foregoing assignment was indorsed as follows: "This claim having been purchased by me for Juliet A. Jones, as her agent and with her money, the same is hereby formally transferred to her. J. L. Jones." And also, to wit: "$395.46%. Recd. of J. L. Jones, executor of the estate of Julia A. Dearing, deceased, the sum of three hundred ninety-seven & 46% ($397.46%) dollars, in full of the amount of the interest of P. H. Jones in said estate, as legatee under the will of said deceased, as appears by the final settlement of said estate by said executor; the interest of said P. H. Jones having been transferred to me this March 11th, 1890. Juliet A. Jones." The assignment of relator was made to the executor after some correspondence between them. The letters were not produced at the trial. Relator, in substance, testified that he was notified that he was one of the fifteen legatees under the will of Julia A. Dearing; that the executor, J. L. Jones, wrote to relator that the estate in his hands consisted of a note for $5,000, with interest, which would not be due until 1890, and a few personal effects, of small value, and inclosing an advertisement of sale of the latter; that relator thereupon offered to sell his share in the estate to the executor for $275; that the executor replied, "There were so many bills being probated against the estate, that, if any of the heirs wanted a settlement immediately, he would have to put up the $5,000 note at auction, and sell it to the highest bidder, and, not knowing what it would bring, he would risk $200 for my interest." Relator states that, believing these statements, he agreed to take $200 for his share, and influenced his sisters to do the same; that the executor sent his private check for $200, less discount, on a Missouri bank, to

relator; that at the time he did not know the executor was one of the makers of the note, but was under the impression that the executor's father was a maker, who then was dead and his estate unsettled; nor did he know what interest was due on the note, or how old it was; that he would not have sold if he had known he could have gotten the cash in full for his interest in the note; that he sold because the executor had stated that "he would have to sell the note, if any of the heirs wanted settlement before it became due, and did not know what it would bring." The executor testified that he wrote relator "there was not money enough on hand to pay the bills"; that he did not write that, "so many bills were coming in, that there would not be enough to pay them, unless the note was sold"; that he mailed a copy of the inventory to all the nonresident heirs, and gave them all the information in his possession as to the condition and value of the estate; that relator wrote back a proposition to sell; that he did not sell the note, because a majority of the heirs objected; that he took the assignment in his own name because he was doing all his mother's business (the transferee), and often made contracts for her in his name; he asked his attorney to draw up the form of the assignment; did not instruct him to make it out in witness' name; supposed he did so because he had been in the habit of drawing other contracts in witness' name; that he submitted relator's proposition to sell to his mother, who, after consultation, decided to accept it, and give witness the money; that his connection with the matter was simply as agent of his mother, which he disclosed to relator.

The parties agreed as to the following facts: That the inventory of the executor showed no real estate; certain personal effects, which brought in, on sale, $43.93; cash, $32.25; one note, $20, interest, $4.20; and note, $5,000, dated January 1, 1884, due January 1, 1890, at 5 per cent., simple interest; interest to date of inventory, $468.78. That on first annual settlement, June 7, 1887, the executor charged himself with costs and sale of personal effects, $47.18, and was allowed credits of $30.75, leaving balance, $16.43, in his hands, which was approved. That on second annual settlement he charged himself with said balance and notes and interest not charged in first annual settlement,-total, $5,487.95,-and was allowed credits of $22.35, leaving balance $5,482.03. That on final settlement (March 10, 1890) he charged himself with said balance, and amount of error in calculation of interest in previous settlement, $1,101.86, making total, $6,583.89, and was allowed credits, $621.94, leaving balance, $5,961.95, and that said last credits included all debts, to wit, $165.14, which had been allowed, and that the taxes paid were $105.01. That said final settlement was approved. There was an order of distribution of said balance, $5,

961.95, wherein the amount adjudged relator was $397.46, and a similar amount adjudged to the other legatees on March 10, 1890, and a motion to set the same aside filed by the executor, which motion was overruled.

The relator and appellant at the close of the testimony requested the following instructions, which show clearly the theory upon which he tried the case, and upon which he expected a judgment: "(1) The court, sitting as a jury, declares the law to be that the assignment to J. L. Jones, the executor of Julia A. Dearing, deceased, was in violation of law, against public policy, and is prohibited by the rules of equity, and conferred no rights upon him, as against the plaintiff in this action, and that J. L. Jones was equally disabled by law from acquiring any rights under said assignment for any third person, as agent of such third person, and no evidence in support of said assignment, or for the purpose of proving such agency, can be considered. (2) The court declares the law to be that the assignment offered in evidence being to J. L. Jones, in his own name and for his own behalf, and under seal, no evidence for the purpose of showing that said assignment was for the benefit of a third person, not named therein, and that said J. L. Jones was agent of such third person in obtaining such assignment, can be considered. (3) The court declares the law to be that the assignment offered in evidence having been made before the final settlement in the probate court, and judgment and order of distribution thereon, the rights, if any, of any assignee thereunder, are merged and extinguished in said judgment, and failure of the defendant J. L. Jones to pay to the relator, the distributee in such judgment, in accordance with the order of the probate court, is such a breach of the bond sued on as entitled plaintiff to recover." Which being refused, the court found the issues for defendants, and plaintiff prosecuted this his appeal for a reversal thereof to the St. Louis court of appeals, wherein the judgment of the circuit court was reversed (53 Mo. App. 207); and afterwards, on application of respondent, the case was ordered certified to this court, on the ground that the opinion filed therein seemed to be opposed to and in conflict with former rulings and opinions of this court.

Treating this case as an action at law against the executor and his bondsmen for the recovery of a money judgment, which in fact it is, regardless of the reply filed with its prayer for equitable relief, we think the judgment of the trial court was for the right party, upon the pleadings and the admitted and undisputed facts, and for that reason no reversal will be ordered, no matter what error, if any, intervened upon the trial of the case. The signature to the assignment by relator of his share of the estate of Julia A. Dearing in the hands of J. L. Jones, executor, made under seal to said executor, being admitted, and proof undis

puted being made of the transfer by the executor of the assignment to Juliet A. Jones, and her receipt for the money due to relator as legatee after final settlement, constitute a defense in this action for the amount adjudged to be due relator in the order of distribution of said estate by the probate court, unless it was shown that some fraud was used in procuring the signature of relator to the assignment, which relator himself disavows, and states that he signed the paper interposed as a defense to his action for his interest in his aunt's estate, and he wrote his sisters what he had done in regard to his interest in the estate, and advised them to do the same; his only claim being that he had been deceived as to the true value of the estate by the executor, to whom he sold. In discussing the question as to what evidence is admissible under the plea that a deed was obtained by fraud and misrepresentation, the court, as early as 7 Mo., in the case of Burrows v. Alter, speaking through Scott, J. (page 424), says: "Under the plea that a deed was obtained by fraud, covin, and misrepresentation, the only evidence of fraud that can be received is that in relation to the execution of the instrument, as that the party was illiterate and the deed was misread to him, or that another deed than that intended to be executed was substituted. But fraud in the consideration, or a partial or total failure of consideration, is no defense in an action at law on a bond. The seal itself imports consideration. Relief must be sought in a court of equity." In George v. Tait, 102 U. S. 564, the court there uses this language: "Proof of fraudulent representations by Meyers & Green, beyond the recitals in the bond, to induce its execution by plaintiffs in error, was properly rejected. It is well settled that the only fraud permissible to be proven at law, in these cases, is fraud touching the execution of the instrument, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some trick or device an instrument which the party did not intend to give. Hartshorn v. Day, 19 How. 211. The remedy is by direct proceedings to avoid the instrument." Plaintiff signed the paper, fully understood its terms, and agreed to all that it contained. The deception or fraud alleged and claimed by him was not as to the making and signing of the contract, but as to the condition and value of the estate contracted away, relief against which cannot be had in a court of law, in a suit of this character. The assignment is fair upon its face. It is between parties competent to contract, and regarding a proper subject-matter of contract, and has been signed by a competent person as and for an honest contract, for a valuable consideration received and acknowledged, and must stand as a binding contract in law, between the contracting parties, until annulled or set aside in a court of competent jurisdiction. As

long as the settlement between relator and the defendant J. L. Jones, either for himself or in behalf of his mother, remained intact and undisturbed by the mutual agreement of the contracting parties,-unannulled by judicial proceedings,-it was a complete barrier to relator's assertion of right against the executor and his bondsmen to the $397.46, the alleged distributive share of said relator in the estate of Julia A. Dearing, deseased, as legatee under the will. Clough v. Holden, 115 Mo. 336, 21 S. W. 1071; Tracy v. IronWorks Co., 104 Mo. 193, 16 S. W. 203; Jarrett v. Morton, 44 Mo. 275; 1 Bigelow, Frauds, 74; 2 Chit. Cont. (11 Am. Ed.) 1089, note W; Kunne v. Webb, 49 Fed. 512. And that, too, regardless of the findings of the probate court of Montgomery county (after the making of the assignment), on the final settlement of the executor, that the relator was entitled to the above-named sum as his distributive share of said estate, and its order that same be paid to relator, as one of the legatees under the will. Johnson v. Jones, 47 Mo. App. 237; Knowlton v. Johnson, 46 Mo. 489.

Appellant's first assignment of error is the refusal of the trial court to give instruction No. 3 asked by him, to the effect that if the assignment offered in evidence had been obtained before the final settlement in the probate court, and the judgment and order of distribution thereon, the right, if any, of the assignee thereunder was merged and extinguished in the order, and the failure to pay to relator the amount named in said order, as distributee, is such a breach of his official bond as to entitle plaintiff to recover. If appellant's contention in this respect was correct, the question of fraud in the procurement of the assignment, or the relation of the contracting parties one to the other, would be eliminated from the consideration of this case. If the probate court of this state had the power to pass upon the rights or claims of third persons against legatees or devisees of estates in the course of administration, or had power to substitute contending parties in the place of the legatees or distributees, there might be some force in appellant's contention, but such is not the law of this state. Courts of general jurisdiction alone, in this state, must determine the right and claim of all third parties against legatees, devisees, or distributees. Such rights must, if an adjudication becomes necessary, be tried in a court of general jurisdiction, unless such jurisdiction is expressly conferred by statutes on the probate courts, which is not so in this state. Hence no right, claim, or interest of the assignee was or could be affected by the probate court, and any order to that effect by that court, if such an order was made, would be without authority, would be a nullity, and of no binding force on any one; and it must follow that if the assignment vested any right in Juliet A. Jones, as transferee thereof, she will be unaffected by the order of distribution