tiff in this suit is one of the children, and the widow and the other children are made defendants, together with a corporate defendant and two individual defendants. Under the will, the widow, Mary J. Davidson, and a son Ira M., were made executors.

13 The purpose of the plaintiff's suit is well described in the prayer of her petition, thus:

"Wherefore, plaintiff prays the court to cancel, set aside and for naught hold the decree of partition aforesaid and the order of sale made thereunder, set aside and for naught hold the report of sale made by the special commissioner thereunder, set aside and for naught hold the order of this court ordering said special commissioner to make and execute the deeds aforesaid, and to cancel, set aside and for naught hold both of the special commissioner's deeds above. referred to as constituting a cloud upon the title of plaintiff, and to render judgment against the defendants, determining the title to said real estate, and quieting and confirming plaintiff's title to an undivided one-ninth interest in and to all the above-described real estate, and to enjoin the defendants, their officers, attorneys, agents, servants and employés from selling or disposing of said real estate, or otherwise dissipating or injuring the same, pending the final disposition of this cause; and that the court appoint some suitable person to take charge of said real estate as trustee or receiver, collect the rents and profits thereof, and pay the same over to this plaintiff and the other heirs of Isaac M. Davidson, deceased, as is provided by the terms of said will and for all other proper relief in the premises, plaintiff will ever pray."

The petition in this case charges that in September, 1901, a certain attorney filed a suit in the circuit court of Butler county asking for a construction of the will and a sale of the property; that in January, 1902, the petition was amended, the amended petition setting out the will, describing the real estate, and asking for a construction of the will and for a sale of the real estate. In that suit Mary J. Davidson, three adult children, and four minor children, through Mary J. Davidson, appeared as plaintiffs in the petition, and 14 Rosa Belle Finley, nee Davidson, and others were defendants. The court in that case determined and ended the trust created by clause two of the will, decreed partition of the property and ordered it sold, one-half of the purchase price to be paid in cash, and the balance in one and two years, to be secured by deed of trust, or all cash if the purchaser elected so to pay before approval of sale; that under this decree on October 12, 1903, the land was sold by the sheriff as a special commissioner and was bid in for $98,752 in the name of I. M. Davidson Real Estate and Investment Company; that report of sale was made by the commissioner and

deed immediately made to said company; that later a deed amendatory of the first was by said commissioner made and delivered; that the petition in said partition suit did not state a cause of action and that the judgment and all subsequent proceedings are void or voidable; that the order of partition violated the express terms of the will; that said judgment and subsequent proceedings were beyond the jurisdiction of the court making the same; that all this was without the consent of plaintiff, then a minor; that the report of sale was never confirmed by the court; that at the date of sale and at the time the property was bid off by an attorney for the corporate defendant herein, said corporation had not been organized and no title did or could pass; that at the date of sale neither the circuit court nor the county court of said county was then in session; that the judge of the circuit court was absent from the county; that the record of the circuit court showing the said judge present and court in session was false and untrue; that the probable bidders knew these facts and would not bid; that it was generally understood that no title would pass owing to the irregularities aforesaid; that $200,000 worth of real estate was sold at a sacrifice for the sum named above as the selling price; that $98,752 was a shockingly inadequate price for the

15

property sold; that only two attorneys bid at such sale, and parties who would have bid agreed with them not to bid and complied with the agreements; that said sale was not made in accordance with the order, viz., one-half cash and the balance in one and two years, which was prejudicial. The petition names the parties to the agreement not to bid at the sale and then further charges that the purpose of the pretended sale was to get the property out of responsible hands, those of a trustee previously appointed by the court, and place it in the hands of an irresponsible corporation, so that said estate might be dissipated and taken from the rightful owners; that the corporation defendant never had a dollar of its stock paid up; that said corporation has since been managing the property and trying to sell the same and denies that plaintiff has an interest therein.

All of the defendants except the corporation and Dalton and Lavin filed answers admitting the things charged in the petition.

The other defendants file lengthy and appropriate answers admitting some things in the petition, denying others and in addition plead certain matters of res adjudicata and estoppel. So far as necessary these will be mentioned and discussed in the course of the opinion. Replications in due form were filed.

The cause was taken by change of venue to Mississippi county where it was tried, a finding of facts made and a

judgment entered. By the judgment, the chancellor, nisi, said:

"Wherefore, it is considered, ordered, adjudged and decreed by the court that the attempted sale of the abovedescribed real property made on the twelfth day of October, 1903, and report of said sale made by the special commissioner thereunder, the two deeds made by the special commissioner to the I. M. Davidson Real Estate and Investment Company, the record of the circuit court of Butler county, Missouri, approving 16 said sale and ordering said deeds made, be set aside, canceled and for naught held.

"It is further considered, ordered, adjudged and decreed by the court that the devisees' title in fee simple to the property above described be, and the same is hereby confirmed, and forever quieted against the defendant corporation, I. M. Davidson Real Estate and Investment Company, James L. Dalton and James Lavin; that they and each of them be, and they are hereby and forever enjoined from claiming or asserting any claim, right or title to said real property adverse to said devisees.

"It is further considered, ordered and adjudged by the court that the defendants, I. M. Davidson Real Estate and Investment Company, James L. Dalton and James Lavin pay all the costs of this suit, and that execution issue."

The finding of facts is very lengthy, but by omitting the formal findings as to the relationship of the parties, the making and probating of the will, the description of the property and rental value thereof, the more material portion thereof reads:

"The court further finds that on the fourth day of September, 1901, Messrs. Phillips & Phillips and Lambert E. Walther, Esq., attorneys at law, filed a suit in the circuit court of Butler county, Missouri, for the construction of said will, and for the partition and sale of the above-described real estate, in which cause, Mary J. Davidson and others appeared as plaintiffs, and James L. Dalton and others appeared as defendants; that afterwards, to wit, on the nineteenth day of June, 1903, the circuit court of Butler county, Missouri, entered of record an interlocutory decree of partition and order of sale of the above-described real estate; that by said interlocutory decree of partition and order of sale said court provided that the above-described real estate should be sold by special commissioner, one-half of the purchase price in cash, balance 17 in one and two years, deferred payments to bear six per cent interest and to be secured by deeds of trust upon property sold, or more or all cash, at option of the purchaser if he elects, before the approval of the sale. That said decree of partition and order of sale so rendered as aforesaid, are recorded in Book S, at page 352, of the circuit court records of Butler county, Missouri. That

thereafter, to wit, on the twelfth day of October, 1903, by virtue of said decree and order of sale, James R. Hogg, sheriff of Butler county, Missouri, acting as special commissioner, attempted to sell the above-described real estate at publie sale and the whole thereof was bid in at the price of $98,752, no part of which was ever paid to the sheriff; that the above described real estate was bid in in the name of I. M. Davidson Real Estate and Investment Company, and thereafter. to wit, on the twenty-second day of October, 1903, the said James R. Hogg filed a report of said attempted sale in the office of the clerk of the circuit court of Butler county, Missouri, and immediately made out, acknowledged and delivered to some one for the I. M. Davidson Real Estate and Investment Company, a deed purporting to convey to it the above-described real estate, which said deed was recorded December 1, 1903, in book 68, at page 525, and a deed amendatory thereof recorded March 25, 1905, in book 75, at page 201, of the deed records of Butler county, Missouri; that in said report and that in said deeds, it is falsely recited that the consideration for said real estate had been paid in cash, when in fact and in truth no cash or other valuable thing had been paid to the sheriff or any person for him for said real estate on the bids therefor; that the defendant I. M. Davidson Real Estate and Investment Company was not incorporated until the fourteenth day of October, 1903; that the statement made in the articles of incorporation 18 of the I. M. Davidson Real Estate and Investment Company that $45,000 had actually been paid up in lawful money of the United States, and was on the twelfth day of October, 1903, in the hands of its board of directors, is absolutely false, while in fact and in truth no part of the capital stock of said corporation was ever paid in money by any of the subscribers for the stock; that the recital in the certificates of stock issued by said corporation, to the effect that the full amount of the capital stock was fully paid, was likewise absolutely false, while in truth and in fact no part of the capital stock was ever paid by the subscribers thereof. "The court further finds that the defendant, I. M. Davidson Real Estate and Investment Company, without any authority of law or equity, issued stock to the extent of $90,000 in the name of the guardian of the minors for their interest in the real estate, and to the adults for their interest in the real estate; that said stock was absolutely worthless, having been issued by a corporation without assets and without any property whatever, and that the defendant I. M. Davidson Real Estate and Investment Company, and its officers, have, since the formation of said company, fraudulently and oppressively obtained a large majority of this stock from the adults and heirs at thirty cents on the dollar; that the defendant, Mary J. Davidson, was unduly influenced and

caused to enter into the corporation in her own right and as guardian for the minors by promise and agreement on the. part of Isaac H. Barnhill and William Ferguson, the managing officers of the corporation, that the corporation would immediately assume and pay a mortgage on her homestead aggregating some $2,600, which indebtedness has never been paid nor has the defendant, Mary J. Davidson, been released therefrom, but said indebtedness and mortgage on her homestead 19 has been used oppressively to unduly influence her in her relations with the defendant corporation; that the defendant corporation in purchasing its own stock, used the rents and profits of the above-described real estate to pay for said stock which has been issued to minors as well as adults.

"The court further finds that on the twelfth day of October, 1903, the date of the attempted sale of the abovedescribed property, the circuit court of Butler county, Missouri, was not in session, and the judge thereof was absent from said county while the attempted sale was being made, and that the county court of Butler county, Missouri, was not in session on the twelfth day of October, 1903, and that the recitals in the special commissioner's report of the sale and the deeds made thereunder, and all other proceedings of the court relative thereto, were false and fraudulent.

"The court further finds that the record entry of the circuit court of Butler county, Missouri, purporting to show that the circuit court of Butler county, Missouri, was in session on the twelfth day of October, 1903. is false and a fraud upon the rights of the devisees of Isaac M. Davidson.

"The court further finds that the price at which the abovedescribed real estate was bid in was shockingly inadequate and a fraud upon the rights of the devisees of Isaac M. Davidson, deceased. That the attempted sale was unjust and unfair to the devisees of Isaac M. Davidson, deceased, in this: that the property was not sold to its best advantage, there having been practically three or four bidders only.

"The court further finds that the officers of the I. M. Davidson Real Estate and Investment Company, for the purpose of disposing of and dissipating said estate advantageously to the officers of said corporation, took possession of the above-described real estate 20 under said deed, immediately after the attempted sale thereof, and ever since that time converted the rents and profits thereof to their own use; have failed to account therefor to the devisees of Isaac M. Davidson, deceased, and are selling and dissipating said real estate to great injury to the said devisees.

"The court further finds that the curator, W. W. Turner, was not in fact a curator for the minors, but a mere figurehead for the defendant corporation.