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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., concur.

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

STATE ex rel. JONES V. JONES et al. (Supreme Court of Missouri, Division No. 1.

Nov. 26, 1895.) EXECUTORS-PURCHASE FROM LEGATEE-FRAUDACTION 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.

Action by the state, on the relation of P. H. Jones, against Joseph L. Jones and oth

From a a judgment for defendants, plaintiff appealed to the court of appeals, where judgment was reversed, and the case is now certified to the supreme court. Court of appeals ordered to affirm judgment of trial court.

Knapp & Harris, for appellant. Johnson, Smith & Drunert, for respondents.

ers.

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 Jones, of the city of Galveston, in the state liis distributive share; and prays for judg- of Texas, have this day, in consideration of ment of the penalty of the bond, and execu- the sum of two hundred dollars ($200.00), to tion for the sum of $397.47, with interest. him paid by J. L. Jones, of Montgomery The answer was that the relator had, prior county, Missouri, bargained, sold, assigned, to the settlement of the executor and the and transferred, and by these presents do order of distribution by the probate court, bargain, sell, transfer, and assign, unto the sold his interest in said estate to Juliet A. said J. L. Jones, all my right, title, interest, Jones, and had, for value received, in writ- and claim in and to the estate of my aunt, ing duly executed, assigned and transferred the late Julia A. Dearing, of Jonesburg, through her agent, J. L. Jones, his interest Montgomery county, Missouri, which said in said estate to said Juliet A. Jones, and estate is now in process of administration that the executor, having due notice thereof, in the probate court of Montgomery county, paid the sum of $397.46 so found as the in- Mo. The said interest hereby and herein terest of said relator in said estate to Juliet bargained, sold, and transferred to said J. A. Jones, and took her receipt therefor, to- L. Jones to include all my right, title, claim, gether with the other legatees and distribu- and interest in and to all the property of tees of said estate, and deposited the same any kind and description whatsoever bewith the papers of said estate, with the fil- longing to said estate, and do hereby guaring of the probate court duly indorsed there- anty the title to the claim hereby assigned on, and that, having paid same to relator's and transferred to be free and clear of any assignee, nothing is now due him from said incumbrance, liens, or debts by me made, estate. Relator then filed his reply, admit- and that the same is free and clear of any ting “that there was a certain transaction claims, liens, or incumbrances. Witness my between him and defendant J. L. Jones prior hand and seal this 28th day of August, 1836. to said final settlement, as is alleged in the Galveston, Texas, 9th/7th/'86. P. H. Jones. answer herein, and that the assignment [Seal.]" Thereafter the foregoing assignwhich defendants claim was made was the ment was indorsed as follows: "This claim result of the transaction; but plaintiff al- having been purchased by me for Juliet A. leges that after said transaction between Jones, as her agent and with her money, the him and defendant J. L. Jones, and on the same is hereby formally transferred to her. final settlement of said estate by the pro- J. L. Jones." And also, to wit: “$395.4613. bate court of Montgomery county, the said Recd. of J. L. Jones, executor of the estate distributive share of the relator, as is al- of Julia A. Dearing, deceased, the sum of leged in the petition herein, was found by three hundred ninety-seven & 4613 ($397.4643) the probate court to be due and owing to dollars, in full of the amount of the interest relator, and was thereupon ordered by the of P. H. Jones in said estate, as legatee unprobate court to be paid to relator, and der the will of said deceased, as appears by asks judgment in accordance with the the final settlement of said estate by said prayer of the petition herein. And fur- executor; the interest of said P. H. Tones ther replying, says that the assignment having been transferred to me this March was made to J. L. Jones in his own right, 11th, 1890. Juliet A. Jones.” The assignwhile he was acting as executor, and not ment of relator was made to the executor as agent of Juliet A. Jones, and that same after some correspondence between them. was obtained from relator by false and The letters were not produced at the trial. fraudulent representations and false and Relator, in substance, testified that he was fraudulent concealment concerning the con- notified that he was one of the fifteen legadition and value of the assets of said estate, tees under the will of Julia A. Dearing; that and that same was unknown to relator, and the executor, J. L. Jones, wrote to relator that relator relied on the statement and rep- that the estate in his hands consisted of a resentation of defendant J. L. Jones on the note for $5,000, with interest, which would making of said assignment; and prays the not be due until 1890, and a few personal court to grant him such relief as he would effects, of small value, and inclosing an adbe entitled to had said assignment not been vertisement of sale of the latter; that remade, and for such other relief as may be lator thereupon offered to sell his share in just and proper.” Jury being waived, the the estate to the executor for $275; that the case was tried by the court, resulting in a executor replied, "There were so many bills finding and judgment for defendant. There being probated against the estate, that, if was but little conflict in the testimony at the any of the heirs wanted a settlement immetrial of the case, and we have given the diately, he would have to put up the $5,000 statement of the facts, so far as they are note at auction, and sell it to the highest not admitted in the pleadings, as same is bidder, and, not knowing what it would found in the opinion of the St. Louis court bring, he would risk $200 for my interest." of appeals when case was in that court for Relator states that, believing these statedetermination.

ments, he agreed to take $200 for his share, Relator, on the day and place therein nam- and influenced his sisters to do the same; ed, executed this assignment: “Know all that the executor sent his private check for men by these presents, that I, Patrick H. / $200, less discount, on a Missouri bank, to relator; that at the time he did not know | 961.95, wherein the amount adjudged relator the executor was one of the makers of the was $397.46, and a similar amount adjudged note, but was under the impression that the to the other legatees on March 10, 1890, and a executor's father was a maker, who then motion to set the same aside filed by the was dead and his estate unsettled; nor did executor, which motion was overruled. he know what interest was due on the note, The relator and appellant at the close of or how old it was; that he would not have the testimony requested the following instrucsold if he had known he could have gotten tions, which show clearly the theory upon the cash in full for his interest in the note; which he tried the case, and upon which he that he sold because the executor had stat- expected a judgment: "(1) The court, sitting ed that "he would have to sell the note, if as a jury, declares the law to be that the any of the heirs wanted settlement before assignment to J. L. Jones, the executor of it became due, and did not know what it Julia A. Dearing, deceased, was in violation would bring." The executor testified that of law, against public policy, and is prohibithe wrote relator "there was not money ed by the rules of equity, and conferred no enough on hand to pay the bills”; that he rights upon him, as against the plaintiff in did not write that, “so many bills were com- this action, and that J. L. Jones was equally ing in, that there would not be enough to disabled by law from acquiring any rights pay them, unless the note was sold"; that under said assignment for any third person, he mailed a copy of the inventory to all the as agent of such third person, and no evidence nonresident heirs, and gave them all the in- in support of said assignment, or for the formation in his possession as to the condi- purpose of proving such agency, can be contion and value of the estate; that relator sidered. (2) The court declares the law to wrote back a proposition to sell; that he be that the assignment offered in evidence did not sell the note, because a majority of being to J. L. Jones, in his own name and the heirs objected; that he took the assign- for his own behalf, and under seal, no eviment in his own name because he was doing dence for the purpose of showing that said all his mother's business (the transferee), assignment was for the benefit of a third perand often made contracts for her in his son, not named therein, and that said J. L. name; he asked his attorney to draw up the Jones was agent of such third person in obform of the assignment; did not instruct taining such assignment, can be considered. him to make it out in witness' name; sup- (3) The court declares the law to be that the posed he did so because he had been in the assignment offered in evidence having been habit of drawing other contracts in witness' made before the final settlement in the proname; that he submitted relator's proposi- bate court, and judgment and order of distrition to sell to his mother, who, after con- | bution thereon, the rights, if any, of any assultation, decided to accept it, and give wit- signee thereunder, are merged and extinness the money; that his connection with guished in said judgment, and failure of the the matter was simply as agent of his moth- defendant J. L. Jones to pay to the relator, the er, which he disclosed to relator,

distributee in such judgment, in accordance The parties agreed as to the following facts: with the order of the probate court, is such a That the inventory of the executor showed no breach of the bond sued on as entitled plainreal estate; certain personal effects, which tiff to recover." Which being refused, the brought in, on sale, $43.93; cash, $32.25; one court found the issues for defendants, and note, $20, interest, $4.20; and note, $5,000, dat- plaintiff prosecuted this his appeal for a reed January 1, 1884, due January 1, 1890, at 5 versal thereof to the St. Louis court of apper cent., simple interest; interest to date of peals, wherein the judgment of the circuit inventory, $468.78. That on first annual set- court was reversed (53 Mo. App. 207); and tlement, June 7, 1887, the executor charged afterwards, on application of respondent, the himself with costs and sale of personal ef- case was ordered certified to this court, on fects, $47.18, and was allowed credits of the ground that the opinion filed therein $30.75, leaving balance, $16.43, in his hands, seemed to be opposed to and in conflict with which was approved. That on second annual former rulings and opinions of this court. settlement he charged himself with said bal- Treating this case as an action at law ance and notes and interest not charged in against the executor and his bondsmen for first annual settlement,-total, $5,487.95,-and the recovery of a money judgment, which was allowed credits of $22.35, leaving bal- in fact it is, regardless of the reply filed ance $5,482.03. That on final settlement with its prayer for equitable relief, we think (March 10, 1890) he charged himself with said the judgment of the trial court was for the balance, and amount of error in calculation of right party, upon the pleadings and the adinterest in previous settlement, $1,101.86, mitted and undisputed facts, and for that making total, $6,583.89, and was allowed cred- reason no reversal will be ordered, no matits, $621.94, leaving balance, $5,961.95, and ter what error, if any, intervened upon the that said last credits included all debts, to trial of the case. The signature to the aswit, $165.14, which had been allowed, and signment by relator of his share of the esthat the taxes paid were $105.01. That said tate of Julia A. Dearing in the hands of J. final settlement was approved. There was L. Jones, executor, made under seal to said an order of distribution of said balance, $5,- | executor, being admitted, and proof undisputed being made of the transfer by the long as the settlement between relator and executor of the assignment to Juliet A. the defendant J. L. Jones, either for himself Jones, and her receipt for the money due or in behalf of his mother, remained intact to relator as legatee after final settlement, and undisturbed by the mutual agreement of constitute a defense in this action for the the contracting parties,-unannulled by juamount adjudged to be due relator in the dicial proceedings,-it was a complete barorder of distribution of said estate by the rier to relator's assertion of right against probate court, unless it was shown that some the executor and his bondsmen to the $397.46, fraud was used in procuring the signature the alleged distributive share of said relator of relator to the assignment, which relator in the estate of Julia A. Dearing, deseased, himself disavows, and states that he signed as legatee under the will. Clough v. Holden, the paper interposed as a defense to his ac- 115 Mo. 336, 21 S. W. 1071; Tracy y. Irontion for his interest in his aunt's estate, and Works Co., 104 Mo. 193, 16 S. W. 203; Jarhe wrote his sisters what he had done in re- rett v. Morton, 44 Mo. 275; 1 Bigelow, gard to his interest in the estate, and ad- Frauds, 74; 2 Chit. Cont. (11 Am. Ed.) 1089, vised them to do the same; his only claim note W; Kunne v. Webb, 49 Fed. 512. And being that he had been deceived as to the that, too, regardless of the findings of the true value of the estate by the executor, to probate court of Montgomery county (after whom he sold. In discussing the question the making of the assignment), on the final as to what evidence is admissible under the settlement of the executor, that the relator plea that a deed was obtained by fraud and was entitled to the above-named sum as his misrepresentation, the court, as early as 7 distributive share of said estate, and its orMo., in the case of Burrows v. Alter, speak- der that same be paid to relator, as one of the ing through Scott, J. (page 424), says: "Un- legatees under the will. Johnson v. Jones, der the plea that a deed was obtained by 47 Mo. App. 237; Knowlton v. Johnson, 46 fraud, covin, and misrepresentation, the only Mo. 489, evidence of fraud that can be received is Appellant's first assignment of error is the that in relation to the execution of the in- refusal of the trial court to give instruction strument, as that the party was illiterate No. 3 asked by him, to the effect that if the and the deed was misread to him, or that assignment offered in evidence had been obanother deed than that intended to be ex- tained before the final settlement in the proecuted was substituted. But fraud in the bate court, and the judgment and order of disconsideration, or a partial or total failure tribution thereon, the right, if any, of the of consideration, is no defense in an action assignee thereunder was merged and extinat law on a bond. The seal itself imports

The seal itself imports guished in the order, and the failure to pay consideration. Relief must be sought in a to relator the amount named in said order, as court of equity.” In George v. Tait, 102 U. distributee, is such a breach of his official S. 564, the court there uses this language: bond as to entitle plaintiff to recover. "Proof of fraudulent representations by Mey- pellant's contention in this respect was corers & Green, beyond the recitals in the bond, rect, the question of fraud in the procurement to induce its execution by plaintiffs in error, of the assignment, or the relation of the conwas properly rejected. It is well settled that tracting parties one to the other, would be the only fraud permissible to be proven at eliminated from the consideration of this case. law, in these cases, is fraud touching the If the probate court of this state had the execution of the instrument, such as mis- power to pass upon the rights or claims of reading, the surreptitious substitution of one third persons against legatees or devisees of paper for another, or obtaining by some trick estates in the course of administration, or had or device an instrument which the party did power to substitute contending parties in the not intend to give. Hartshorn v. Day, 19 place of the legatees or distributees, there How. 211. The remedy is by direct proceed- might be some force in appellant's contention, ings to avoid the

the instrument." Plaintiff but such is not the law of this state. Courts signed the paper, fully understood its terms, of general jurisdiction alone, in this state, and agreed to all that it contained. The de- must determine the right and claim of all ception or fraud alleged and claimed by him third parties against legatees, devisees, or diswas not as to the making and signing of the tributees. Such rights must, if an adjudicacontract, but as to the condition and value tion becomes necessary, be tried in a court of of the estate contracted away, relief against general jurisdiction, unless such jurisdiction which cannot be had in a court of law, in a is expressly conferred by statutes on the prosuit of this character. The assignment is bate courts, which is not so in this state. fair upon its face. It is between parties com- Hence no right, claim, or interest of the aspetent to contract, and regarding a proper signee was or could be affected by the prosubject-matter of contract, and has been sign- bate court, and any order to that effect by ed by a competent person as and for an hon- that court, if such an order was made, would est contract, for a valuable consideration re- be without authority, would be a nullity, and ceived and acknowledged, and must stand of no binding force on any one; and it must as a binding contract in law, between the follow that if the assignment vested any right contracting parties, until annulled or set in Juliet A. Jones, as transferee thereof, she aside in a court of competent jurisdiction. As will be unaffected by the order of distribution

If ap

made by the probate court, adjudging the leg- the doctrine interdicting dealing on part of acy of $397.46 in favor of relator, and defend- trustees with trust estates. In Ex parte Laant in this suit will be protected to the ex- cey, 6 Ves. 625, Lord Eldon says, “The rule is tent of his payment of the legatee's share to not that a trustee cannot buy from his cestui said Juliet A. Jones, as such assignee, provid- que trust, but that he shall not buy from himed the position taken by appellant, as indi- self.” The rule which imposes upon the truscated by the propositions announced in the tee incapacity to deal with and buy from his first and second instructions asked, to the cestui que trust applies only where the truseffect that an executor cannot purchase, either tee attempts to purchase from or sell to himfor himself or as agent for another, the right, self. The rule at no time ever reached to claim, and interest of the legatee of the es- the point that the trustee cannot deal with his tate in his hands for distribution, is not ten- cestui que trust. He is not allowed to specuable. The appellant insists that the transac- late or make profit out of the trust funds in tion, as between the relator and executor, be his hands, and, if he does, then the profit so cause of the trust or fiduciary relation exist- made goes to the trust fund. Nor can he pering between them, is void; and the St. Louis form the double functions of seller and buyer court of appeals, when the case came up for at the same time. The fund in this case, it review before it, conceded the fairness of the is true, was in the hands of the executor, or transaction, but took practically the same would be there during the course of the adview, and reversed the judgment of the cir- | ministration of the estate, in trust for the use cuit court, and disposed of that branch of the of the relator, but the executor undertook no case in a few words, as follows: “This nar- disposition of it whatever that would impair rows the question to a single inquiry: Can or affect its value in his hand as a trust fund. an executor, on his own behalf or as agent of He did nothing to diminish the value of the another, purchase the interest of a legatee in fund, or to divert it from the channel into the estate, for a sum which turns out to be which it was by law to flow. It went unimabout half of its actual value, even if it be con- paired and undiminished, by fraud or otherceded that there was no actual fraud in the wise, into the hands of the assignee of the purchase? As to the first alternative, i. e. legatees under the will which empowered the the purchase for himself, the question has executor to act in the management of the been so often answered in the negative that it fund. The legatee who by the will was enwill not bear further discussion;" citing titled to the fund disposed of it, not the exThornton v. Irwin, 43 Mo. 153, and numerous ecutor. If the executor should have disposed other authorities, and then closes the para- of the fund by sale, use, or otherwise, the law graph with these words: "That person might would say to him that it was done for the be wholly unable to show actual fraud on part use and benefit of the beneficiary of the fund, of his trustee. He is not required to do it.” and the beneficiary would have been entitled In other words, the proof of, or an admission to whatever of profit was made out of the use of, the relationship of legatee and executor, as or sale of same. Not so, however, when the charged in the petition of plaintiff, rendered beneficiary himself uses, sells, or disposes of unavailing and ineffective as a defense the that which belongs to himself. No claim is payment by the executor, to the assignee of made but that the legatee was competent to the contract of assignment, of relator's inter- make the sale and disposition of his disest in the estate in his hands for distribution. tributive share in his aunt's estate, and that, Stated in other words, the proposition is that if made to any one else than the executor, it the contract of assignment in this action is to would have passed title thereto; but, says apbe treated as if it were not, and under no pellant, being made to the executor, it is void, condition is a bar to a second recovery of the and should be so held and treated in a court money procured thereunder by the legatee, in of law, when the evidence of the sale and asa suit by him against the executor. We have signment thereof is interposed to prevent a the anomaly of an executed contract, where judgment for the second payment of the same a valuable consideration has passed between fund (a proposition most shocking to all sense the contracting parties therefor, made by par- of fairness, and most abhorrent to all princities of full age, discretion, and mental ca- ciples of law). While the law exacts of a pacity, admitted to have been made, signed, trustee the utmost good faith in all his dealand delivered in the exact condition as when ings with the beneficiary regarding the trust presented at the trial, regarding a proper sub- funds in his hands, and commands him, on ject-matter of contract, not immoral or pro account of the fiduciary relation, to make full, hibited by statute, nor against public policy, fair, and open disclosures of all facts in his declared in a court of law to be worthless possession, it has never yet been announced and unavailing to its possessor, in a contest at as a doctrine that all dealings in regard to law for the identical subject-matter settled the trust fund are void and to be held for and adjusted by the contract,-a proposition naught, in a court of law, at the mere sugwe think not supported by authority in this gestion of the relationship of the parties by state, ungrounded in equity, unbottomed on the beneficiary. The office of trustee is no mere principle, unauthorized and unwarranted by pitfall, into which any scheming, exacting, or the dictates of public policy. We do not think traitorous beneficiary may throw the trustee the principles involved in this case are within / at pleasure. There is no difference in the

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