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cause there is a defect of parties plaintiff, in this: that the petition shows that a deed of trust was executed conveying said land to a trustee, but said trustee is not made a party to this suit."

J. B. Ormsby, H. J. Akley, and C. W. Bolster, for appellants. Ira B. Hyde and H. G. Orton, for respondents.

BARCLAY, J. (after stating the facts). This case went off in the circuit court upon a demurrer to the petition. Those pleadings the reporter will please copy at length, as an introduction to the report of the case in this court. The only question here is whether or not the ruling sustaining the demurrer shall be affirmed.

1. The object of this action is to set aside a deed of trust to land on the alleged ground of fraud in its procurement. Such a suit involves title to real estate, within the meaning of the constitution, defining the jurisdiction of this court, as heretofore interpreted. Nearen v. Bakewell (1892) 110 Mo. 645, 19 S. W. 988.

2. A pleading is, no doubt, to be liberally construed, in determining its effect, in accordance with the command of the Code of Practice. Rev. St. 1889, § 2074. But that command has not been construed, nor was it ever intended, to dispense with the necessity of stating, directly or inferentially, the facts on which the pleader depends to secure the object of his pleading.

3. The petition is defective, for the reason assigned in the second ground of demurrer, if for no other reason. The Overton parties plaintiff are alleged to be heirs at law of the deceased, Moses Overton, whose deed is attacked, but it is also alleged that he left a last will, which has been duly probated. The terms of the will are not given, nor is its effect stated in respect of its disposition of the land which was the subject-matter of

the deed. Nor is it stated that the Overton plaintiffs have any interest in any real estate of his under the will. Where the fact of a will appears, the law does not then infer an intestacy as to any part of the property of the deceased. Webb v. Archibald (1895) 128 Mo. 299, 34 S. W. 54. The parties who, under the will of Mr. Overton, deceased, are entitled to the real property referred to in the deed sought to be conceled in this suit, are the proper parties to maintain the action, on the facts as they appear in the petition under review. If the deceased made no disposition by will of the land in controversy, that fact should appear to entitle those relying thereon to maintain the action as representatives of the title of the deceased. If a party who is united in interest with those who wish to bring such an action refuses his consent thereto, he may be made a defendant, in accordance with the Code provision to that effect. Rev. St. 1889, § 1995. But that provision does not relieve plaintiffs who bring a suit thereunder from showing

an interest in the subject of the action necessary to its maintenance. We think the ruling of the learned circuit judge sustaining the demurrer was correct. The judgment is affirmed.

BRACE, C. J., and MACFARLANE and ROBINSON, JJ., concur.

STATE ex rel. RUTLEDGE et al. v. ST. LOUIS SCHOOL BOARD et al. (Supreme Court of Missouri. Dec. 10, 1895.) ST. LOUIS SCHOOL BOARD-POWER TO CONDUCT ELECTIONS-MANDAMUS TO COMPEL ELECTION.

1. If a school board is under a clear statutory duty to order an election, mandamus will lie to compel the performance of that duty.

2. Citizens who are entitled to have the locality in which they live represented on the school board may maintain mandamus to compel the school board to order an election, as required by statute.

3. Laws 1887, p. 272, fixing the terms of members of the St. Louis school board, modified Laws 1833, p. 37, vesting the board with power to prescribe the time and manner of conducting elections, to the extent of requiring elections to be held at some reasonable time near the close of the terms of office which the former act defined.

4. The election act of 1895 (Laws 1895 [Sp. Sess.] p. 5) did not deprive the St. Louis school board of the power to conduct elections of members of said board; and it was not excused, by reason of the registration provisions of said law, from holding the November, 1895, election to fill the places of those members whose terms, as fixed by Laws 1887, p. 272, expired at that time, it appearing that the board could obtain the registry lists as they existed and were in effect in August, 1895.

In banc. Petition for mandamus by the state of Missouri, upon the relation of Rutledge and others, against the St. Louis school board and the individual members thereof, to compel said board to cause an election for members of said board to be held in that city. Peremptory mandamus awarded.

Rowell & Ferriss, for relators. Chas. B. Stark, for respondents.

BARCLAY, J. This is an original proceeding to obtain a mandamus against the St. Louis school board, the official title of which is the "Board of President and Directors of the St. Louis Public Schools." The members of the board are joined as de

fendants. The relators are certain citizens

and taxpayers of St. Louis. The object or the desired writ is to require defendant to cause an election for members of the said board to be held in that city. An alternative writ was issued on representations of the relators. A return thereto has been made by defendants, and a demurrer to the return has been argued and submitted. The controlling facts are admitted, and the issue is one of law.

The St. Louis school board is a corporation for the purposes of public education. It is invested with the control and management

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of the interests of the public schools in the city of St. Louis. It was incorporated in 1833 by a special act. Laws 1833, p. 37 (2❘ Terr. Laws, p. 399; Rev. St. 1889, p. 2170, § 1). But various amendments to the original charter have been made from time to time, the effect of some of which it will be necessary to consider. The board at the present time is entitled to an official membership of twenty-one. Seven members are elected from the city at large, and fourteen from separate districts, each choosing one member. This is ordained by the act of 1887, popularly known as the "Drabelle Law." Laws 1887, p. 272 (Rev. St. 1889, § 8113, and following). That act was held to be a constitutional measure, first, by the general term of the circuit court, city of St. Louis, and afterwards by the supreme court in State v. Miller (1890) 100 Mo. 439, 13 S. W. 677. The act, among other things, declares that the board first elected thereunder shall divide itself by lot into two groups of 11 and 10 members respectively. The term of the first group is fixed at four years, and of the second group at two years, at the outset of the new arrangement; but thereafter the full term of the office of director is to be four years, excepting only where vacancies are filled, or a holding over is necessary until the qualification of a new member. Rev. St. 1889, § 8115, as amended; Laws 1893, p. 249, § 8115. In accordance with the terms of the law of 1887, an election was held in November, 1891, at which 11 of the present board were chosen. One of the other group of members (elected in November, 1893) resigned in the early part of 1895, so that the vacancy thereby occasioned is to be filled at the next general school election. Id. The power originally given to the board "to prescribe the time, place, and manner of conducting the elections of members" has not been wholly repealed, though modified by subsequent amendments. The Drabelle law, however, undoubtedly limited and modified that power in one respect, important to notice. It fixed the full term of membership at four years, after the short terms expired of those drawn by lot for two years at the beginning of the plan of selection established by that law.

The board recognized the force of this change by the rules it adopted for its own government, the first of which, concerning "Elections," is as follows:

"Rule 1: Elections-When to be Held. Elections for directors of the board of president and directors of the St. Louis public schools shall be held biennially in the city at large, and in the respective districts, on the first Tuesday in the month of November. Such elections shall be managed and governed according to the provisions of rule 2."

In September, 1895, however, the board, or a majority thereof, after due consideration, decided to hold no election on the first Tuesday of November in 1895. No election was

in fact held at that time, and no election has yet been called for 1895. These facts appear from defendants' return, filed in this case after the date appointed for the election in 1895, by the rule above quoted. The ground on which the board has concluded to hold no election at the usual time in 1895 is, to state its substance shortly, that the board is of opinion that it cannot obtain complete registration lists for use at such election, on account of the change of law governing the registration of voters in large cities. Laws

1895 (Sp. Sess.) pp. 5–43. 1895 (Sp. Sess.) pp. 543. It is conceded that the board can obtain the lists as they existed near the close of the month of August, 1895; but the claim is made that, as those lists may be imperfect by reason of omissions of names of voters entitled to registry since that time, no proper election can be held based upon such registration lists as can now be obtained. In this state of the case relators insist that the board should be required to order an election.

1. If the board is under a clear statutory duty to have an election, there can be no doubt that mandamus is an appropriate method of requiring the performance of that duty. State v. School Directors of Springfield (1881) 74 Mo. 21; State v. Brown (1882) 38 Ohio St. 344; State v. Ware (1886) 13 Or. 380, 10 Pac. 885.

2. The relators describe themselves as "citizens, taxpayers, and resident householders of the city of St. Louis," but it is insisted for defendants that private persons cannot set on foot a proceeding of this nature without, at least, the sanction of the official representatives of the state or of the locality affected by the application. ed by the application. On this point the precedents in other jurisdictions are not in accord. It is needless to review them, for in Missouri several cases have dealt with this subject, and the conclusion has been reached that where a public right is involved, and the object is to enforce a public duty, the people are regarded as the real moving party; and in such a case the relator in mandamus need not show any special or peculiar interest in the result if the performance of the general public duty obviously affects his rights as a citizen. affects his rights as a citizen. State v. Hannibal & St. J. R. Co. (1885) 85 Mo. 13; State v. Francis (1888) 95 Mo. 44, 8 S. W. 1. We see no reason to depart from that rule, nor do we see anything in the case at bar that prevents its application. The relators have the right, as citizens of the locality, to representation in the school board by members chosen in conformity to the law on the subject. We regard their interest as sufficient to sustain their position as relators, under the rulings above cited.

3. But it is next contended that the board has a discretion to prescribe the time and manner of conducting school elections, and that that discretion cannot be controlled by mandamus. The Drabelle law repeats, in substance, the oldest provisions of the char

ter of the board on that point (Laws 1833, p. 38, 4; 2 Terr. Laws, p. 400); but it adds this important modification, namely: "Subject to the provisions of this act" (Laws 1887, p. 273, § 4; Rev. St. 1889, § 8116). That act, in effect, fixed the term of the directors now in office, who were elected under it in 1891, at four years. The language of the act itself, as well as that of the amendments thereto in 1889 and 1893, plainly contemplates that there shall be a general school election in St. Louis every two years. Reading the act as an entirety, there can be no doubt that the legislature intended to limit the power of the board over the elections of is own members to the extent of requiring elections to be duly held to choose their successors, at some reasonable time near the close of the terms of office which that act defined. To that extent the discretion of the board as to the time of holding elections is limited, and mandamus may be used to keep that body within the limits of that discretion, just as the writ may be sometimes used to require judicial officers to render some judgment, even in circumstances where the writ cannot properly direct what particular judgment shall be pronounced. At the present time the terms of office of the directors in question have expired, according to the Drabelle law. It is hence the duty of the board, under that law, to call an election to choose their successors, unless the objection next discussed affords a reason for not doing so.

4. The principal ground of resistance to the calling of an election at present to fill the places of the members whose terms have expired is the contention that no sufficient lists of registered voters can be obtained for use at such election, owing to the provisions of the election law of 1895 for large cities. Laws 1895 (Sp. Sess.) p. 5, and following. The school board do not claim that the election commissioners should hold the school election. On the contrary, the former assert the power (under the particular terms of the laws governing the board) to prescribe the time, place, and manner of conducting such elections. That power was conferred by the charter of 1833, which is still operative, except so far as it is modified by later amendments. That provision of law, being special in its nature, should be held yet in force, notwithstanding the very large and comprehensive language of section 16 of the said election law of 1895. Laws 1895 (Sp. Sess.) p. 12. A special or local law on one topic is not to be held repealed by a later general law which touches the same topic, unless the intent to repeal the former is manifest. The question on that issue is one of intent, and the intent is to be gathered from the terms and circumstances of the acts themselves, interpreted according to the established canons of construction. In our opinion, the election act of 1895 was not intended to deprive the school board of the power to

conduct elections for members of that body. Under a statute of 1881 (Laws 1881, p. 207), the electors at a school election in St. Louis are those persons "who are, under the laws in force for the time being, qualified voters for city officers in the city." This definition would require that a person should be registered as a voter in order to participate in a school election, since that qualification (among others) is essential to the right to vote for city officers under the existing laws, enacted in obedience to a positive command of the constitution. Const. 1875, art. 8, § 5. It appears from the papers in this case that the school board has for many years followed the practice of obtaining lists of registered city voters from the registry officers. Those lists have been used at school elections by virtue of arrangements between the board and those officers. Under the act of 1895, governing the custody of the registry lists in St. Louis, the board of election commissioners has control of them as they stood when that act went into effect. By its terms, it is provided that the recorder of voters shall deliver the registry books, etc., to the new election board, and that "all the powers and duties now vested in and required of the recorder of voters shall hereafter (unless otherwise provided in this act) rest in and be required of said board of election commissioners." Laws 1895 (Sp. Sess.) p. 7, § 2. The old registration law, which the act of 1895 was designed to supplant, was certainly operative until the latter part of August, 1895. The registry lists were at that time the official exhibit of the names of the registered voters. Those lists (or copies), it appears, can be had, if desired by the school board, for the purpose of an election. The present case does not require us to express an opinion as to the powers and duties of the new election board touching the continuance of registration for the purposes of school or other elections held prior to the date at which the general registration contemplated by that act will begin. It is obviously better for us to refrain from determining in advance the legality of any proposed line of action that may be suggested for the holding of the school election. It is enough now to say that we do not regard the new election law of 1895, referred to, as constituting a sufficient legal obstacle to prevent an election under direction of the board, in the circumstances here disclosed. Although the terms of office of directors (and consequently the time for general school elections) are now determined by the Drabelle law, the mode and "manner of conducting" the elections are committed to the school board's discretion, within the restrictions marked by the law governing the board. We deem it inappropriate, in awarding this mandamus, to also direct the course of the board as to the manner of holding the election, although we conceive it our duty to direct the board to order an election. It

may possibly be that no question will be raised as to the validity of the course the board may adopt in conducting the election. Until such a question arises, it is unnecessary to consider its merits or the form it may possibly assume. Even if it is conceded (as defendants urge) that the effect of the new election law of 1895 is to preclude the entry of transfers or new registration of qualified voters for several months after the law became operative, and until after the school election, that state of the law would not prolong the term of office of any school director, or justify postponing for a year the election of his successor. It would merely indicate an omission on the part of the legislature to adequately provide for a complete and perfect registration that might be utilized for the purposes of school elections. If the registration law is, perchance, deficient in this particular, the consequence is not a prolongation of the statutory term of a director's office. It appears to us that the board is under the plain duty to proceed at once (as promptly as may be, following the usual course) to cause an election to be held to choose the successors to the 12 directors mentioned. The demurrer to the return is sustained, and a peremptory mandamus is awarded, conforming to this opinion.

BRACE, C. J., and GANTT, MACFARLANE, SHERWOOD, BURGESS, and ROBINSON, JJ., concur.

COCHRAN et al. v. THOMAS et al. (Supreme Court of Missouri, Division No. 1. Nov. 26, 1895.)

TRIAL BY COURT-FINDINGS-PARTITION-PARTIES -MARRIED WOMEN-JUDGMENT-INFANTS

-ESTOPPEL-COLLATERAL ATTACK.

1. Rev. St. 1889, § 2135, providing that the court, when requested by either party, "shall state in writing the conclusion of facts separately from the conclusions of law," requires the court to find and state in writing, not only every constitutive fact in issue to which his attention is directed, but also separately the conclusions of law thereon, so that exceptions may be taken thereto.

2. Under Gen. St. 1865, c. 152, which treats of the entire subject of partition, and which

makes no difference between an interested mar

ried woman and any other person in interest, it is not necessary that husbands of interested married women should be made parties to parti

tion suits.

3. Under the practice act (Gen. St. 1865, c. 161, § 8), providing that a married woman may sue and be sued alone in an action regarding her "separate property," and, when her husband cannot be joined with her, she may sue by next friend, a married woman, in a suit for the partition of land in which she is interested in the remainder after a life estate, properly sues or defends by next friend.

4. The failure to sign a petition for partition by the parties or their attorneys, as required by statute, cannot be regarded as a matter of substance, and therefore does not render the judgment void.

5. Under Gen. St. 1865, c. 152, §§ 46, 49, providing that infants in partition suits should

be represented by their general guardian, or one appointed by the court, the failure to appoint a guardian ad litem to represent an infant plaintiff in such a suit, who sues by next friend, does not render the judgment void as to the infant.

6. When in partition proceedings the property is purchased by one of the parties under an agreement with others that the property shall be held for their joint benefit, a party to such agreement is estopped to attack the validity of the sale on the ground that the court had no jurisdiction of his person.

7. A judgment cannot be collaterally attacked by a party on the ground that the appearance of an attorney for him was unauthorized.

8. A statute requiring all persons having an interest in the premises to be made parties in an action for partition does not enable one of the parties to a judgment for partition to avoid it on the ground that others, who were not parties, had an interest in the premises.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Charles A. Cochran and others against Joel Thomas and others. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

This suit is ejectment, prosecuted by Charles A. Cochran, George Lester Cochran, A. L. Cummins, and W. J. Turner, as plaintiffs, the two last being the husbands, respectively, of Medora (Cochran) Turner and Anna (Cochran) Cummins, in whose right they claim. Plaintiffs claim title as heirs at law of Harriet Cochran, deceased. Defendant Thomas is the tenant of his codefendants, who claim title under a sheriff's deed in a certain partition proceeding, in which they claim to have acquired the title of plaintiffs. They also claim under a tax deed and the statute of limitations. The petition is in the usual form, except that it avers the prior ownership of Margaret Cummins, her death, and the inheritance of the land by plaintiffs as her heirs at law. The answer is, in substance, a general denial and a plea of the statute of limitations. The cause was tried to the court without a jury, “and, at the request of defendants, the court, in its findings, stated in writing the conclusions of fact found separate from its conclusions of law." The substance of the finding of facts was that James Cochran was first married to Hannah Moore in 1819, by whom he had four children, some of whom are still living. His first wife having died, he married Harriet Ritchie November 13, 1829. By this marriage Anna was born May, 1836, and married plaintiff A. L. Cummins October 11, 1858; plaintiff Charles A. was born October 4, 1839; Medora was born November 19, 1842, and was married to plaintiff Turner April 25, 1865; and plaintiff George L. was born March 7, 1855. Of this marriage was also born, August 27, 1846, Harriet, who died single and intestate, without issue, December, 1890, and Albert, born August, 1850, who died single, intestate, and without issue, in September, 1866. In February, 1831, the United States by patent conveyed to Gabriel Predom the S. W. 4 of section 32, township 50, range 33

W. The lot sued for is part of this quarter section. The land claimed in this suit is a part of lot 184 in Kansas City. On February 14, 1859, John Campbell, by sufficient deed, for the expressed consideration of $1,600, conveyed to the said Harriet Cochran, the mother of plaintiffs, the whole of said lot 184, which deed was duly recorded in May, 1861. This lot fronted 60 feet on Wyandotte street, in Kansas City, and has been within the limits of the city since the date of the deed. The said Harriet Cochran died intestate August 25, 1861, her husband, the said James Cochran, and plaintiffs Charles A. and George L. Cochran, and the said wives of plaintiffs Turner and Cummins, surviving her. On March 14, 1867, a suit for the partition of said lot was commenced in the circuit court of Jackson county. The heirs of one Benjamin V. Glime, with the said. Harriet Cochran and plaintiff George L. Cochran, were named as plaintiffs, and the said Anna (Cochran) Cummins, Charles A. Cochran, Medora (Cochran) Turner, and James Cochran were named as defendants. Three of the plaintiffs sued by W. H. Phelps as their next friend. His name was written by himself in the caption as next friend, but the petition was not signed by him. The petition was signed by Douglass & Gage, as attorneys for plaintiffs, and was sworn to by William Douglass, as agent for plaintiffs. The answer was filed on the same day, March 14, 1867, was signed, "Charles A. Cochran, James Cochran, by Wm. Douglass, Their Attorney,' and was as follows: "Said Anna (Cochran) Cummins, by F. A. Mitchell, her next friend, Medora Turner, by F. A. Mitchell, her next friend, Charles A. Cochran, and James Cochran, answer and admit that all the allegations in the petition of plaintiffs are true, and they ask and consent that partition of the premises be made according to the prayer of the petition, and that a final decree herein be rendered at this present term of this court, and for all such orders and judgments as may be necessary." The name "F. A. Mitchell," where it occurs in the answer, was written by himself, he at the time being an attorney at law practicing at Kansas City. The petition charged that Harriet Cochran and Benjamin V. Glime purchased the lot of John Campbell, with the intention of holding the same as tenants in common, each paying $800 of the purchase price, and that the conveyance to Harriet Cochran of the entire interest was through a mistake. It then stated the rights and interests of the parties as heirs of the said Glime and the said Harriet Cochran, and prayed partition and sale of the lot. On the same day, the court being in session, a decree of partition and sale was entered. The findings and recital of the court were that the parties all appeared. Under this decree the lot was regularly sold by the sheriff to James Cochran, the surviving husband of Harriet Cochran, deceased, for $2,000. A deed was made to the purchaser

September 19, 1867, which on the same day was filed for record. By mesne conveyances from James Cochran, the title acquired by him was on June 17, 1868, vested in Howard M. Holden and Lyman Fullerton, as tenants in common by deed from George Wilson, containing full covenants of warranty of title. On June 11, 1864, a tax deed was made by the city register, which purported to convey to Daniel Burns said lot 184. On July 3, 1868, Burns, by quitclaim deed, in consideration of $600, conveyed said lot to said Holden and Fullerton. The court found that Holden and Fullerton purchased and paid for said lot$3,125 to Wilson, and $600 to Burns-in good faith, believing that this deed would secure to them a good and perfect title to the lot. Defendants claim under a regular chain of title from Holden and Fullerton. The court further found that in the year 1868 the said Holden and Fullerton took the actual possession of the lot, and the same has been held by them, and their grantees, openly, notoriously, exclusively, and adversely since that date. James Cochran, the surviving husband of the said Harriet, died January 12, 1881, and this suit was commenced January 9, 1891. The court concluded its finding as follows: "As matter and conclusion of law, on the foregoing special findings and conclusions of facts, the court finds for defendants." Plaintiffs offered evidence tending to prove that they did not authorize their appearance in the partition proceedings, and did not receive the proceeds of the sheriff's sale. Plaintiffs asked, and the court refused to give, declarations of law to the effect that, if the appearance of the parties to the partition suit was not authorized, the judgment would be void as to such parties. The judgment upon the facts found was for defendants. The grounds assigned for a new trial, on motion therefor, were the omission of the court to find, among others, the following material facts: Whether George L. Cochran, Charles A. Cochran, Medora Turner, or Anna C. Cummins, or any of them, authorized their appearance in the partition proceedings, or received the proceeds of the sheriff's sale; whether certain ordinances of the city of Kansas were in force at the time of the assessment and sale of the lot for taxes; and whether the lot was assessed in the name of J. Cochran for the taxes of 1861. The refusal of the court to give the declarations of law was also assigned as a ground for new trial. The motion was overruled, and plaintiffs appealed.

L. A. Laughlin, for appellants. Jefferson Brumback and C. O. Tichenor, for respondents.

MACFARLANE, J. (after stating the facts). 1. A preliminary question of practice is raised, which may be first settled. It is said that a general conclusion of law that "the court finds for the defendant" is insufficient to answer the requirements of the statute that the

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