The

privilege claimed under a federal statute, as, the court would be asked to allow plaintiffs in determinative of the question of jurisdiction. those cases the improvements, as under sections We cannot assent to that reasoning. mentioned court could properly award relief provided by sections 2401-2405 as to compensapower of ultimate review of the construction tion for improvements; section 2100, providand interpretation of federal statutes reserv-ing that damages shall not exceed amount claimed to the Supreme Court of the United States ed, being inapplicable. has nothing to do with the appellate procedure prescribed by the Constitution of this state distinguishing the classes of appeals or writs of error to this court from those to be taken to the Courts of Appeals, which is clearly a matter of state regulation.

It follows that this cause must be retransferred to the Springfield Court of Appeals. It is so ordered. All concur.

TALBERT et al. v. GRIST. (No. 12680.) (Kansas City Court of Appeals. Missouri. Jan. 28, 1918.)

1. COVENANTS 80-PARTIES ENTITLED TO SUE-SUBSEQUENT GRANTEE "GRANT, BARGAIN, AND SELL."

5. STATUTES 236- REMEDIAL STATUTES – CONSTRUCTION.

Rev. St. 1909, § 2535, providing that in suits to determine title the court may hear and finally determine all rights of the parties, is remedial and beneficial and should be liberally

construed.

6. COVENANTS 121(3)-SUITS ON WARBANTY-ESTOPPEL.

In a suit against defendant on warranty in his deed by plaintiffs who had defended title after notice to defendant, defendant could not complain of the action of the court in awarding improvements to defendants in such suits to quiet title; such decision being to defendant's advantage.

7. INFANTS 105-JUDGMENT.

In suits to try title under Rev. St. 1909, §§ 2535, 2536, 2401-2405, the court could, although one of the parties was a minor represented by a guardian, order that the defendants take the the owners, including the minor; the court's land and pay the ascertained value thereof to

terest.

That deed from defendant's grantee to an unincorporated company and from it to plaintiff's grantor were void would not deprive plain-powers as to minor not being limited to adtiff of the right to sue on the covenant of in- judging him to be owner of an undivided indefeasible seisin contained in defendant's deed, where in a suit by heirs of defendant's grantee 8. EVIDENCE against the company and plaintiff's grantor a final decree was rendered that the land was owned by plaintiff's grantor, the words "grant, bargain, and sell" used in a warranty deed being under Rev. St. 1909, § 2793, covenants of warranty and for quiet enjoyment and against incumbrances, as well as seisin running with the land and available to any subsequent grantee sustaining loss by failure of or defect in the title.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Grant, Bargain, and Sell.]

2. CORPORATIONS 34(3)-ESTOPPEL TO DENY EXISTENCE.

The rule that one who has dealt with another as a corporation is estopped to deny corporation's existence in proceedings wherein such dealings are an issue does not extend to a case where no charter has been received and there has never been an intention to obtain one.

3. COVENANTS 121(3) FAILURE TO DEFEND TITLE-ESTOPPEL.

460(3) — PAROL EVIDENCE IDENTITY OF LAND CONVEYED. The identity of a tract of land described in a deed and a tract involved in a suit to determine title may be shown by parol. 9. EVIDENCE 419(2) -PAROL EVIDENCECONSIDERATION IN DEED.

In suit on warranty in deed, the amount paid by the grantees being a proper issue, testimony as to the actual consideration in deeds offered in evidence was admissible, as consideration could be shown to be other than that named in deeds.

Appeal from Circuit Court, Schuyler County; N. M. Pettingill, Judge.

Suit by Luther Talbert and others against George Grist. Judgment for plaintiffs, and defendant appeals. Affirmed..

E. R. McKee, of Memphis, and Fogle & Fogle, of Lancaster, for appellant. Campbell & Ellison, of Kirksville, and Rolston & Rolston, of Queen City, for respondents.

BLAND, J. On October 13, 1894, Sarah E. Wales purchased and owned in fee-simple the title to the south half of block 14, Colorado City, otherwise described as lots 4, 5, 6,

Where defendant who conveyed land by warranty deed to plaintiff's predecessor did not appear after notice of suit to determine title, he is estopped in a suit by plaintiff on warranty in his deed to say that case was not properly tried, and is bound by judgment awarding the improvements to defendants therein in view of Rev. St. 1909, § 2535, providing that upon trial of such case, if the same be asked for in the 7, 8, and 9, in Colorado City, Schuyler counpleadings by either party, the court may hear and finally determine any and all rights; the case being tried upon the theory that the relief granted was requested, although there was nothing in the pleadings asking for an allowance for improvements, and defendant being in duty bound to defend suit.

4. COVENANTS89-FAILURE TO DEFEND

TITLE-NOTICE ESTOPPEL.

Where the notice to defendant who conveyed land by warranty deed to plaintiff's predecessor was that suits had been commenced to try title to the land, that is, suits as provided by Rev. St. §§ 2535, 2536, defendant cannot complain in suit by plaintiff on warranty in defendant's deed that the notices did not state that

ty, Mo. The property was afterwards taken into the village of Greentop. Sarah E. Wales died intestate owning this property, leaving her husband, George W. Wales, her sons, John P. Wales and Harry Wales, and a grandson, Virgil Fowler, as her sole and only heirs. George W. Wales moved to Iowa and took with him his sons. The taxes upon the land became delinquent, the property was afterwards sold for the same, and a sheriff's deed was made on May 11, 1903, conveying the property to defendant, George Grist. This tax deed was void and convey

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ed no title to said Grist. George Grist con- was served with notices signed by these veyed these lots by a warranty deed, regu- plaintiffs, Greentop Telephone Exchange, lar in form, dated May 18, 1903, to Wallace and Buchanan and Farrington, notifying Wilson, who took possession of the premises under such deed, claiming in good faith the title thereto. By a warranty deed regular in form, dated June 29, 1908, Wallace Wilson and his wife conveyed the property to the Greentop Telephone Exchange and its successors. This company was an unincorporated company, and there was no evidence that it was intended that it should become a corporation. Said company likewise went into the possession of the property and claimed in good faith the title thereto under said deed. By a warranty deed, regular in form, dated February 12, 1913, the Greentop Telephone Exchange by Luther Talbert, James Young, and R. W. Hart, directors, conveyed the property to Harry A. Buchanan and Frank B. Farrington, who went into possession thereof claiming in good faith the title thereto, and on February 16, 1915, Buchanan and Farrington and their wives conveyed to plaintiffs lots 4, 5, 6, 7, and a portion of lot 8, being in the south half of block 14, of Colorado City; the latter likewise went into possession thereof claiming, in good faith, the title thereto.

On February 16, 1915, the heirs of Wallace Wilson, claiming through him, brought a suit against the Greentop Telephone Exchange and Talbert, Young, and Hart, its directors, and Buchanan and Farrington, to try the title to said property. The answer in said suit set up that the Greentop Telephone Exchange purchased the property from Wallace Wilson and wife, who, by their warranty deed and in consideration of $650, conveyed said premises to the Greentop Telephone Exchange and its successors, and that said Greentop Telephone Exchange by its directors, Talbert, Young, and Hart, by a warranty deed, and in consideration of $600, thereafter conveyed the property to Buchanan and Farrington. The court by its judgment in said suit, apparently rendered on the same day that the suit was filed, found the title to the property to be in said Buchanan and Farrington.

this defendant that said suits had been brought and requesting that this defendant come in and defend the title as he was required to do by virtue of the covenant and warranty contained in his said deed to Wallace Wilson, dated May 18, 1903. This de-. fendant failed to appear or defend these suits, but the defendants therein filed their answers and on a trial judgments were rendered therein that the plaintiffs and defendant, Virgil Fowler, were entitled to the property subject to the improvements, and that "certain improvements were put on said lots by said defendants, in good faith, and without any knowledge on their part of any title or claim to said lots on the part of said plaintiffs and Virgil Fowler, and while said defendants were holding and claiming the said lots, adversely to said plaintiffs and Virgil Fowler;" that the value of said lots, without such improvements, including rents accrued was $975; and that the value of said lots, including said improvements was $4,875. The court then ordered that upon the payment of $975 to plaintiffs and Fowler defendants should have and hold the fee-simple title to said lots, and said payment was so made.

On January 4, 1917, this suit was brought by plaintiffs for damages incurred by reason of said suits brought against these plaintiff's and Buchanan and Farrington (plaintiffs being the assignee of the latter's claim) for breach of this defendant's covenant and warranty as contained in his said deed to Wallace Wilson. The cause was tried before the court and judgment was rendered in favor of plaintiffs, and defendant has appealed.

[1, 2] Defendant's first point is that plaintiffs had no right to sue upon defendant's covenant and warranty contained in his deed to Wallace Wilson, for the reason that the Greentop Telephone Exchange was an unincorporated company and that the conveyances by Wilson to it and from it to Buchanan and Farrington were void. To support this contention defendant relies upon DoutOn August 23, 1915, the heirs of Sarah E. hitt v. Stinson, 63 Mo. 268; Reinhard v. Wales brought suit against Buchanan and Virginia Land & Mining Co., 107 Mo. 616, 18 Farrington and Virgil Fowler, the latter be- S. W. 17, 28 Am. St. Rep. 441, and White ing a minor heir of said Sarah E. Wales, Oak Grove Benevolent Society v. Murray, asking the court to determine the title to 145 Mo. 622, 47 S. W. 501. These cases susthe property claimed by the defendants tain defendant's contention that the deeds therein, as provided in section 2535, R. S. from Wilson to the Greentop Telephone Ex1909, and on August 31, 1915, said heirs of change and from the latter to Buchanan and Sarah E. Wales, deceased, brought a like Farrington were void. Nor can persons dealsuit against these plaintiffs, the Greentop ing with such a company be estopped to deTelephone Exchange, and other persons, ask ny its existence as a corporation. The ing the court to try the title to the property general rule is that, where a person has conconveyed by Buchanan and Farrington to tracted and dealt with another as a corporathese plaintiffs as aforesaid. Before these tion, he and his privies will be estopped, in suits were tried a guardian ad litem was ap- a proceeding wherein such dealings are an pointed for the minor defendant, Virgil issue, to deny the existence of the corpora

deeds from Wallace Wilson to the Greentop Telephone Exchange and from the latter to Buchanan and Farrington, but a suit upon covenants in the valid deed from the defendant to Wilson.

where no charter has been obtained from the secretary of state and there has never been an intention to obtain such a charter. Elliott v. Sullivan, 156 Mo. App. loc. cit. 507, 137 S. W. 287; Douthitt v. Stinson, supra; Reinhard v. Virginia Land & Mining Co., [3] Defendant urges that the plaintiffs supra; White Oak Grove Benevolent Society herein are not entitled to recover damages v. Murray, supra; Bradley v. Reppell, 133 in this suit for the reason that the court, in Mo. 545, 32 S. W. 645, 34 S. W. 841, 54 Am. the suits brought by the Wales heirs against St. Rep. 685; West Missouri Land Co. v. plaintiffs and Buchanan and Farrington, Railway Co., 161 Mo. 595, 61 S. W. 847. erred in considering the question of improveHowever, we do not believe that the fact that ments and allowing the same to the defendthose deeds were void deprives plaintiff in ants therein. The reason given for this this case of the right to sue on the covenant claim is that those suits were brought to deof indefeasible seisin contained in defend-termine the title to the property, and no reant's deed. As before stated, on February lief other than to ascertain and determine 16, 1915, the heirs of Wallace Wilson (Wallace Wilson was defendant's grantee in a deed the validity of which is not disputed) brought suit against the Greentop Telephone Exchange and Buchanan and Farrington. There was a final judgment rendered in that case which, in effect, determined that all the interest of Wallace Wilson or his heirs in the land was then owned by Buchanan and Farrington. This judgment was binding on the parties therein and their privies whether or not the court rendered the same on erroneous conclusions of law, and the parties thereto and their privies were not in a position to thereafter urge that the deeds from Wilson to the Greentop Telephone Exchange and from the latter to Buchanan and Farrington were void deeds. The loss having fallen upon these plaintiffs the covenant in defendant's deed inured to them. Dickson v. Desire's Adm'r, 23 Mo. 151, 66 Am. Dec. 661; Iowa Loan & Trust Co. v. Fullen, 114 Mo. App. loc. cit. 638, 91 S. W. 58.

The words "grant, bargain, and sell" used in a warranty deed are, under section 2793, R. S. 1909, covenants of warranty and for quiet enjoyment, and against incumbrances, as well as of seisin, which run with the land, and that they may be sued upon by any subsequent grantee who sustains a loss by failure of or defect in the title, has been settled by many decisions of our courts. Staed v. Rossier, 157 Mo. App. loc. cit. 308, 137 S. W. 901, and cases therein cited.

It is said in Allen v. Kennedy, 91 Mo. loc. cit. 329, 2 S. W. 143:

"As to the covenant of seisin of an indefeasible estate in fee-simple, the claim is, that this covenant, if broken at all, is always broken when made, and does not run with the land. Whatever may be the rule elsewhere, with us it is more than a covenant in the present tense. It is rather a covenant of indemnity, and it has often been held that it runs with the land to the extent that if the covenantee takes any estate, however defeasible, or if possession accompanies the deed, though no title pass, yet, in either event, this covenant runs with the land and inures to the subsequent grantee, upon whom the loss falls. Dixon v. Desire, 23 Mo. 151 [66 Am. Dec. 661]; Chambers v. Smith, 23 Mo. 174; Maguire v. Riggin, 44 Mo. 512; Jones v. Whitsitt, 79 Mo. 188."

It will be noted that this is not a suit upon a covenant in void deeds, that is, the

the title was mentioned in the pleadings, nor was defendant notified of the pendency of any other character of suits except those brought to determine the title. While the statute under which these suits were brought (section 2535, R. S. 1909) provides that "upon trial of such cause, if same be asked for in the pleadings by either party, the court may hear and finally determine any and all rights," etc., and there was nothing in the pleadings in those cases asking for an allowance for improvements, nevertheless, it is quite evident that those cases were tried upon the theory that such relief was requested as it was granted by the court in its judgments. Had the defendant been present and defended those suits, as he was in duty bound under his covenant and warranty, he might have made objection then as to the theory upon which the case was being tried. Not having been present he is now estopped from saying that the case was not properly tried, and he is bound by the judgments of the court in those cases awarding the improvements to the defendants therein. Leet v. Gratz, 92 Mo. App. 422.

[4, 5] We are also of the opinion that defendant cannot complain that the notices served upon him did not state that the court would be asked to allow plaintiffs in those cases the improvements. The notices served on the defendant notified him that suits had been commenced to try the title to the land; that is, suits as provided under sections 2535 and 2536, R. S. 1909. Under the provisions of these sections we think it apparent that the court may award the relief provided for under sections 2401, 2402, 2403, 2404, and 2405, R. S. 1909. This last section provides that in certain contingencies the defendant may take the land and pay plaintiff therefor. While the relief provided for in section 2401 et seq. cannot be granted in an ejectment suit, but must be obtained in a separate suit brought after judgment for plaintiff in the ejectment case (Dawkins v. Griffin, 195 Mo. loc. cit. 438, 94 S. W. 525; Jasper County v. Wadlow, 82 Mo. 172; McClannahan v. Smith, 76 Mo. 428), the suits by the Wales heirs were not suits in ejectment. Section 2535, R. S. 1909, under which these actions were brought provides that:

"The court may hear and finally determine, named suit, compromised the same for $500, any and all rights, claims, interests, liens and which was paid to the adult devisees and to demands whatsoever of the parties, or of any the curator of the minor devisees. The curaone of them, concerning or affecting said real property, and may award full and complete tor of the minors attempted to carry out said relief, whether legal or equitable." compromise agreement by conveying, under an order from the probate court, the interest of such minors to Leet. The circuit court then adjudged that the title be out of the minors and be in the defendant, Leet. The defendant in that case, Leet, then brought suit against Gratz on his covenant of seisin and warranty and the court held (Leet v. Gratz, supra) that Leet could not recover the amount he paid to the guardian of the minors as there was no power given by the law to any court to order the sale of land of

This statute is very broad in its terms, and as it is highly remedial and beneficial in its purposes it should be given a very liberal construction. Ball v. Woolfolk, 175 Mo. loc. cit. 285, 75 S. W. 410; Garrison v. Frazier, 165 Mo. loc. cit. 46, 65 S. W. 229. One of the objects of this statute is to give a right of action to any person claiming an estate in lands and to permit a defendant to set up any defense he may have and to ask for and have litigated any relief the law minors to compromise a litigated claim. gives him. We believe that these notices served upon the defendant fully covered suits wherein the value of the improvements was awarded to the defendants. Section 2100, R. S. 1909, has no application to notices of this kind.

[6] Aside from this we do not believe that defendant in this case can complain of the action of the court in awarding the improvements to the defendants in those cases, for the reason that it was to the distinct advantage of the defendant herein that the defendants in those cases saved the value of the improvements instead of permitting plaintiff in those cases to recover the land and improvements. Defendant's contention that the defendants in those suits were not evicted because they retained the land and improvements after paying for the former is not well taken. Magwire v. Riggin, 44 Mo. 512; Leet v. Gratz, supra.

[7] In the suits brought by the Wales heirs against plaintiffs, Greentop Telephone Exchange, and Buchanan and Farrington, the court found and adjudged that the minor, Virgil Fowler, was the owner in fee of onefourth of the real estate and further found the value of his interest, and adjudged and decreed that he be divested of the title and that the defendants therein be vested with the same upon the payment of plaintiffs' (therein) attorney's fees and the amount found to be the value of their interest in the

land.

Defendant claims that the court had no power to do anything further than to adjudge said minor to be the owner of an undivided one-fourth interest in the property, and that the minor could be divested of such title (if at all) only by and through the probate court, citing Leet v. Gratz, supra. that case the devisees of one Martin J. Gannon had brought suit in ejectment against Leet (the plaintiff in the case of Leet v. Gratz), and the devisees had recovered possession of the land in said ejectment suit, thereafter Leet, the defendant in the last

In

However, we do not believe that that case (Leet v. Gratz, supra) is in point on the question before us in this case. In the suit by the Wales heirs there was no effort made to compromise with the guardian ad litem of the minor, Virgil Fowler, and to buy his title for a consideration. The court tried these suits under the provisions of sections 2535, 2536, and 2401 et seq., R. S. 1909. There is nothing in those sections providing that the court shall not exercise the powers conferred therein in cases where one of the parties to the suit is a minor. The minor, Virgil Fowler, was represented in those suits by his guardian ad litem, and there can be no doubt but what the court, exercising the powers conferred upon it by said sections of the statutes, had a right under section 2405, R. S. 1909, to order that the defendants in those suits take the land and pay the ascertained value thereof to the owners thereof.

[8] The deed from Grist to Wilson was for land in Colorado City, originally a town in Schuyler county, Mo. The suit of the Wales heirs involved the title to land in Colorado City, an addition to the original town, now the village of Greentop, in said county and state. Defendant urges that there was no evidence that the said tracts were identical, and that oral evidence introduced to show the identity of the two tracts was not admissible. These points are ruled against the defendant. The identity of the two tracts might be shown by parol. Hubbard v. Whitehead, 221 Mo. 672, 121 S. W. 69; Wilcox v. Sonka, 137 Mo. App. 54, 119 S. W. 445.

[9] The court properly permitted the witness Hart to testify as to the actual consideration in the deeds offered in evidence to show the value of the premises at various times. The amount paid by the grantees in these deeds was a proper issue in the case. and the consideration as named in the deeds might be shown to have been other than that named. Leet v. Gratz, supra; Allen v. Kennedy, supra, 91 Mo. loc. cit. 328, 2 S. W. 142. The judgment is affirmed. All concur.

favored, since the school law was designed as a method workable by citizens not learned in the law, and therefore is not to be strictly construed.

Appeal from Circuit Court, Clinton Coun

1. CERTIORARI 42(3)-PETITION-CONCLU-ty; A. D. Burnes, Judge.

8. SCHOOLS AND SCHOOL DISTRICTS 37(1)— CONSOLIDATED DISTRICT-ORGANIZATION. [2, 3] There is no doubt but that Anna L. Technical objections to proceedings to or- Sims, as county school superintendent, had ganize a consolidated school district are not authority to organize the consolidated dis

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