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of the revenue at the time he commenced John C. Anderson, for appellant. 0. S. Calthe suit to subject the land to the pay- liban, for respondent. ment of the taxes, at the time he obtained the judgment, at the time he purchased, and GANTT, P. J. (after stating the facts). 1. at the time of the execution of the sheriff's The learned counsel for plaintiffs urges, with deed to him, could not, and did not, ac- great earnestness, that the tax deed by the quire legal title to said land; that the deed sheriff to the tax collector, Million, is void executed to him by the sheriff is null and because it is against public policy to permit void, and therefore defendant took no title a tax collector to purchase at an execution by Million's quitclaim deed to him as against sale under a judgment obtained by him for these plaintiffs. They asked the following taxes. Counsel correctly assumes that a pubinstructions: "(1) On the pleadings and evi- lie officer charged with the duty of selling dence in this cause, the verdict should be property for the best price cannot himself befor the plaintiffs. (2) The deed read in evi- come the purchaser, and that a sale made by dence from William C. Fletcher, sheriff of an agent or trustee to himself will not be Clark county, Missouri, to Joseph H. Mil- sustained by the courts. These salutary and lion, dated October 26, 1888, is void upon fundamental principles are not controverted its face, and did not convey to said Joseph by counsel for defendant, but he insists that H. Million the legal title to the lands therein both reason and the authorities distinguish mentioned and described. (3) It is admitted between a sale by a tax collector to himself that Joseph H. Million was, in the year and a sale to him by a sheriff made under a 1888, collector of the revenue of Clark coun- judgment and execution of the circuit court; ty; he commenced an action in the circuit that, after the execution came to the hands court of said county of Clark, in the name of of the sheriff, the sheriff, and not the collectthe state of Missouri, at the relation of and or, was charged with its execution and the to the use of said Million, against the follow- responsibility attending the sale. It will be ing named persons: Peter H. Weaver, George observed that counsel present the naked F. Weaver, Ora and William Gill, Cora B., proposition that a purchase by the collector Martha E., and Edith J. Clark, Elijah and at the sheriff's sale is void. No collusion or Elisha Church, and Abraham Clark,-to en- conspiracy is charged, no suggestion is made force the payment of taxes charged agaiust of unfairness or irregularity in the time or the land described in the plaintiff's petition, manner of sale, or inadequacy of the bid. A viz. 13 and 33-100 acres off of the west side careful examination of each and every case of the southeast fourth of the northwest cited by plaintiffs discloses that in every inquarter of section 27, township 63, range 6 stance in which the sale was held void or west, in Clark county, Missouri; that judg. voidable it was under a tax law in which the ment was rendered on said suit; that an collector himself made the sale, and either by execution was issued on said judgment at himself or deputy purchased the land, or, if the instance of said Million, and levied on sold by a sheriff or constable, he purchased said land by the sheriff of said county, Wil- at his own sale. The great underlying prinliam C. Fletcher; that said land was by said ciple in all these cases is that the duty of sheriff, on the 26th day of Oetober, 1888, dur- the seller is inconsistent with the interest of ing the setting of the circuit court of said the purchaser, and when there is such a concounty, sold, and the said Joseph H. Million, flict the temptation is too great to subordiwhile still collector of the revenue of said nate the former to the latter, and public polcounty, became the purchaser of, said land, icy forbids the transaction; but under the at said sale, for the price and sum of ninety- tax law of 1877, and subsequent amend. seven dollars; that thereupon the said Wil- ments, sales of lands for taxes in Missouri liam C. Fletcher, the sheriff of said county, are made under judgments of the circuit executed and delivered to said Million the courts, and executions issued thereon to the deed therefor, which was read in evidence; sheriffs as under other judgments. The sherthat, while still collector of the revenue as iff, and not the collector, is charged by law aforesaid, to wit, on the 14th day of Decem- with the execution of the process. He adber, 1888, the said Million conveyed said vertises and conducts the sale, and the colland to defendant Hand, by deed of quit- lector has no control of the process, other claim. Now, the court declares the law to than to stop the sale if the owner shall pay be that said deed of said sheriff, William C. the taxes and costs. The cases cited from Fletcher, of date October 26, 1888, to said other jurisdictions whose proceedings were Million, is null and void, and conveyed no wholly unlike ours throw no light upon the title to the lands therein described to said subject further than to illustrate the general Million, and therefore the quitclaim deed principle that an agent cannot be both seller from said Million to said Hand, of date De- and buyer. The law of this state no longer cember 14, 1888, conveyed no title to said imposes upon the collector the duty of makHand, and therefore the verdict should be for ing the sale. The state, at his relation, obthe plaintiff.” The court refused all of said tains the judgment, and after that the colinstructions, and in due time plaintiffs ex- lection of the tax is intrusted to the clerk cepted, and filled their motion for new trial, and sheriff. Many cases hold that public ofwhich was overruled, and they appealed. ficers other than the one who makes the tax sale may purchase at such sales, and that officer. On the death of one of them, his adsuch purchases are not opposed by public pol

ministrator was elected a director in his place. icy. The cases in this state which furnish

Afterwards the directors passed a resolution to

increase the capital stock to $500,000, and that the strongest analogy to this in principle are disposition of the increase be made as follows: the cases of Dillinger v. Kelley, 84 Mo. 565, $50,000 to each of the surviving incorporators, and Briant v. Jackson, 99 Mo. 585, 13 S. W.

$50,000 to the estate of the deceased incorpo 91, in which it was held that, although our

rator, and $50,000 "to be placed to the credit

of the old firm to be disposed of as thought prop statutes forbid administrators to purchase er by the present directors of the company,' the lands of their intestates, that prohibition the disposition to be specially noted in the proonly extended to probate sales made by

ceedings at the next meeting of the directors.

The increased stock was credited accordingly. themselves, and they are not denied the right | Held, that the stock placed to the credit of the to purchase such lands at sales made by firm was not a gift but was in trust, and that sheriffs under the judgments of the circuit

it took no beneficial interest therein. courts. In Briant v.Jackson, Ray, C.J., says: Appeal from St. Louis circuit court; D. D. "Having as said administrator recovered said Fisher, Judge. judgment, it was his privilege and duty to Action by Charles W. Knapp, administradirect the clerk to issue the execution, and tor of the copartnership estate of George this, we suppose, was done by the adminis- Knapp & Co., against Publishers, George trator in this case, or his attorney; but, aft- Knapp & Co., a corporation, to recover divier the execution came to the hands of the dends on certain stock of defendant. From sheriff, the sheriff, and not the administra- a judgment for plaintiff, defendant appeals. tor, was charged by law with the execution Reversed. of the process, with the return and applica- Seddon & Blair and Boyle & Adams, for tion of the purchase money, with the due

appellant. Pollard & Werner, for respondexecution of proper deeds to the purchasers,

ent. and, in short, with the entire responsibilities of the sale." The collector of taxes cannot BURGESS, J. From a judgment in favor stand in a closer trust relation than an ad- of plaintiff against defendant in the sum of ministrator, and, if the law does not forbid $4,425.25, for dividends on stock in defenda purchase by an administrator when a sher- ant's corporation, defendant appeals. The ift sells under judgment and execution, no petition, in substance, alleges that John good reason can be given why it should for- Knapp died in November, 1888, while adminbid the collector the same privilege, in the istrator, as surviving partner, of the partnerabsence of fraud, conspiracy, or collusion. ship estate of George Knapp & Co., and that Our conclusion is that the mere fact that the plaintiff is his administrator, and as such collector bought the land at the sheriff's sale owns 300 shares of stock in the defendant's will not render his deed void, and the court corporation, on which, since January 1, 1889, committed no error in so holding.

dividends have been declared by defendant 2. But as the evidence was uncontradicted aggregating $5,400, for which he asks judgthat Henry Church died seised of the land, ment. Defendant, in its answer, admits its and that Mrs. Walcott was one of his chil. incorporation, with a capital stock of $300,000, dren and heirs at law, and entitled to an un- divided into 5,000 shares of $100 each, but divided one-sixth of said lands, and was not denies all other allegations in the petition. made a defendant in said tax suit, it is clear The parties stipulated as follows: "For the that said tax proceedings did not divest her purposes of this case only, it is hereby stipuinterest, and, while she was not entitled to lated and agreed by and between the parties all of said lands, we think the court, upon to the above-entitled suit that if the firm of the showing made, erred in not giving her George Knapp & Co. shall be found to have judgment for her aliquot part thereof; and, been the beneficial owner, and if the plainfor this cause, the judgment is reversed, and tiff, as administrator of the estate of said the cause remanded for new trial in accord- firm, still has such ownership, of all and ance with this opinion.

any of the three hundred shares of stock

mentioned in the petition, judgment shall be BURGESS and SHERWOOD, JJ., concur. rendered for the plaintiff, as such adminis

trator, for $18 a share as dividends, together with such interest thereon, if any, to which

plaintiff may show he is entitled, on as many KNAPP v. PUBLISHERS, GEORGE shares as it shall be found that said firm so KNAPP & CO.

owned, and he, as such administrator owns. (Supreme Court of Missouri, Division No. 2. If, however, the plaintiff shall not prove that June 26, 1894.)

said firm beneficially owned, and that he, GIFT BY CORPORATION-RESOLUTION BY DIRECT

as such administrator, owns, and is entitled ORS-INTERPRETATION.

to, any of said three hundred shares, judg. Three partners incorporated, with ment shall go for this defendant." capital stock of $300,000, . divided equally By consent, the case was referred to Arba among them. The business and property of the N. Crane, to try all the issues, whose state firm was transferred to the corporation, but the firm, having outside interests, was not dis- ment of facts we adopt. They are stated by solved. Each incorporator was a director and the referee to be as follows:

a

"It appears that, in and prior to 1864, moneys of the firm, and the amount of the George Knapp, Nathaniel Paschall, and John business of the firm, including occasional enKnapp were equal copartners, under the firm tries of undivided profits of the corporate name of George Knapp & Co., engaged in business, was kept on the books of the corthe business of newspaper, book, and job poration in the name of the 'Old Firm,' that printing, and well known as publishers of being the name by which the firm of George the Missouri Republican, in St. Louis; that, Knapp & Co. was known in its dealings with in April of that year, these members of said the corporation. The business of the corpofirm, in conformity with the provisions of the ration itself was conducted as first organMissouri act of February 15, 1864, for organ- ized, without change of officers or directors, izing business companies, formed a corpora- until the death of Nathaniel Paschall, in Detion, in the firm name of George Knapp & cember, 1866; whereupon, at a meeting of Co., to engage in substantially the same busi- the board held January 7th, Henry G. Pasness as the firm had conducted. The capital chall, who was administrator of the estate of stock of the corporation was fixed at $300,- his father, said Nathaniel, was elected a di000, with the privilege of increasing it up to rector in his place. Subsequently, on the 4tb $500,000, divided into shares of $100 each, day of February, 1867, the office of editor the business to be managed by a board of was abolished, and Henry G. Paschall was directors, who, for the first year, were to con- elected as secretary in the place of John sist of the three incorporators. The by-laws Knapp, who resigned that office. At a meetof this corporation provided for a president, ing of the board as last constituted, held an editor, a secretary, and a treasurer, and January 6, 1868, the following resolutions on the 15th of April, 1861, the board elected were adopted: 'Whereas, it is considered to those offices George Knapp, president, Na- necessary, in order to secure the services of thaniel Paschall, editor, and John Kuapp, new parties in the working department of secretary and treasurer. On the same day, the corporation of George Knapp & Co., to the corporation, then organized, purchased increase the capital stock of the company of said firm of George Knapp & Co., and the from three hundred thousand dollars to five latter transferred to the corporation, the hundred thousand dollars: Therefore, be it Misouri Republican newspaper and job office

resolved that the capital stock of George and book bindery, and the Republican build- Knapp & Co. be increased to five hundred ing and grounds on Chestnut street, ‘and all thousand dollars, and that disposition of said the stock and fixtures, together with the increase be made as follows: Fifty thousand debts due George Knapp & Co. now on the dollars to George Knapp; fifty thousand dolbooks of said firm of George Knapp & Co., lars to estate of Nath. Paschall; fifty thousand except what is known as stocks, Charlevoix dollars to John Knapp; and fifty thousand dolproperty, and real estate, independent of the lars to be placed to the credit of the old firm, Republican building mentioned above.' For to be disposed of as thought proper by the this property, the corporation agreed to pay present directors of the company, and, when all the debts of the firm, and also the sum disposition is made of any portion of said of $358,267.44. Of this purchase price, $300,- stock, the same to be specially noted in the 000 was presently paid in the capital stock records of the proceedings at the next meetof the corporation, as follows: $100,000 to ing of the board of directors.' This increase George Knapp; $100,000 to Nathaniel Pas- was based on the original property of the corchall; and $100,000 to John Knapp,-and these poration and its increased value up to this members of the firm gave the corporation time, and, in the proportions and amounts their several receipts as for so much money stated in these resolutions, was credited to on account of their interest in the Republican the several parties therein mentioned, in their establishment, and were credited with cap- accounts with the corporation kept on the ital stock to that amcunt on the books of the ledger, and also in the book containing the corporation, but no certificates were issued records of the meetings of the board of diof the stock at this time. The balance, of rectors; and the evidence tends to show that $58,267.44, of the purchase price was passed these credits were entered at the time the to the credit of the members or the firm on stock was increased. Following out the purthe books of the corporation, to be paid as pose indicated in the resolutions to secure the they might desire, as follows: To George services of new parties in the working deKnapp, $6,413.35; to Nathaniel Paschall, $22,- | partment of the company, the board of di254.11; and to John Knapp, $29,599.98. Not- rectors now arranged with William Hyde for withstanding these transactions, the copart- the transfer to him of two hundred shares nership of George Knapp & Co. was not now of this increase of capital stock that had dissolved, but was continued, on account of been credited to the old firm. The transacits interests outside of the interests of its tion is set out in the record of the meeting of members in the corporation, and its business the board held February 3, 1868, as follows: was afterwards transacted by the same man- 'In accordance with the authority conferred agement and clerical force' as conducted the by resolutions adopted January 6, 1868, the corporation, and practically its transactions undersigned directors have disposed of two were carried into the corporation, as a de hundred shares of the stock of George Knapp positary or agent to receive and pay out the & Company to William Hyde, upon the foltowing terms and conditions, which are to these dividends. Thus, it stands credited be transferred to him when the stock is fully with dividends as follows: June 25, 1868, paid up, according to the terms and condi- $3,000; December 31, 1868, $1,500; May 31, tions, as follows: When the dividends on the 1869, $1,500; December 31, 1870, $1,500; June two hundred shares, and the semiannual 24, 1871, $1,800; December 31, 1871, $1,500; credits, seven hundred and fifty dollars, and June 39, 1880, $4,200; June 30, 1882, $1,800; such other sums as he may from time to March 15, 1883, $300; March 15, 1884, $1,900. time pay, shall amount to ten thousand dol. A dividend of 4 per cent., or $1,200, on the lars, in addition to the interest at the rate shares of the old firm, was declared June 30, of six per cent. per annum on ten thousand 1883, but, instead of being credited like tbe dollars of said stock, then two hundred others of the old firm, was distributed directshares, being twenty thousand dollars of the ly among the representatives of the old firm. stock of said company, shall be transferred On May 24, 1870, the Republican building to him. It is understood that ten thousand was destroyed by fire, and between 1871 and dollars of said stock is presented to said 1880 no dividends were declared. In JanuWilliam Hyde in consideration and as an in- ary, 1870, a call of 10 per cent on the capital ducement that he will give his undivided per- stock was made by the directors of the corsonal attention to the interest of the estab- poration, and the old firm paid that call on dishment, independent of the consideration the 300 shares standing to its credit. It of his salary. George Knapp. John Knapp. amounted to $3,000. In November, 1879, a Henry G. Paschall. As this was the only stockholders' meeting was had to vote on a instance in which the stock of the old firm proposition to change the name of the corwas disposed of for the purpose mentioned poration, which resulted in adopting the in the resolutions of January 6, 1868, it is

name of "Publishers, George Knapp & Co.,' proper to notice the way it is carried out. by which the corporation is now known. At An account was opened with Mr. Hyde, in this meeting, John Knapp voted the three which he was debited with $10,000 for the hundred shares of the old firm. This seems two hundred shares. This account was ulti- to have been the first vote by the stockmately closed in the manner agreed upon,

holders after the stock was increased. In and a certificate issued for stock. By an September, 1883, George Knapp died, and, in entry in the ledger of the corporation, under the following October, Girard B. Allen was date of February 1, 1868, the old firm is

elected a director, and John Knapp president credited, “By Wm. Hyde, $10,000;' and by a in his place. At a stockholders' meeting subsequent entry under date of July 1, 1868, held April 14, 1884, John Knapp, Girard B. the old firm is credited, “By contingent, $10,- Allen, and Samuel C. Clubb were elected di000. The evidence tends to show that these rectors, being the first election of directors entries were payments by the corporation to

since the organization of the corporation, in the old firm for the aforesaid two hundred April, 1864. At this meeting the old firm shares transferred to William Hyde.

shares were again voted. This board or“In the course of the business of the cor- ganized by electing Allen president, Clubb poration, dividends were from time to time vice president, and continuing Henry G. Paspassed to the credit of the stockholders. chall as secretary. These dividends, in two or three instances, "The evidence is not very full on the matwere declared and recorded at regular meet- ter of changes in holdings of capital stock ings of the board of directors, but, down to up to this time. There had been transfers 1884, were usually determined upon at in- of shares to no stockholders besides Hyde, formal consultations of the directors, from but I infer that, up to about the time of the an inspection of the semiannual balance death of George Knapp, the new parties had sheets of the business. This was done under been entirely brought in from the families of the immediate direction of John Knapp, the the original incorporators. Transfers to some business manager of the corporation. With of these had been made as early as 1872; but respect of the dividends after the increase of whether any certificates of stock had been is. the capital stock, the old firm was treated as sued prior to 1878 is doubtful. None were is. a stockholder, and credited with dividends sued until after Henry G. Paschall became proportional to the shares of stock standing secretary, and he at first fixed upon 1878 to its credit on the books of the corporation, as the date of the first issues, but finally conamounting, after the sale fee to Hyde, to fessed a doubt when he filled them out, exthree hundred shares. It is observable, how- cept that it was in 1868 or 1878, or some time ever, that the old firm is in no instance men- between those years. It is quite certain that tioned as a stockholder to receive dividends, no certificate ever issued for the three hunwhen declared at meetings of the board of dred shares standing to the credit of the old directors, when the usual form was to fix the firm. Mr. Paschall, testifying here, says that per cent., and direct the payment at that rate the reason no certificate was issued was that to the three stockholders, George Knapp, they all along anticipated using more of John Knapp, and the estate of Nathaniel those shares, as was done with Hyde, and Paschall. But, as already stated, the old it was more convenient for that purpose to firm was always credited, in its account with have them stand as they were. At a meetthe corporation on the corporation book, with | ing of the directors held June 2, 1885, Samuel C. Clubb, John Knapp, and George A. Madill, is given on your corporation books under the successor of G. B. Allen, being present, John title of "Old Firm.” I desire you to issue a Knapp requested that a certificate issue for certificate of said three hundred shares to me the three hundred shares standing to the as such administrator, and I hereby make credit of the old firm to him, as adminis- formal demand on you for the issue to me of trator of the firm. Action on the request said certificate. Yours, etc., John Knapp, was deferred to an adjourned meeting, held Adm'r Part. Est. George Knapp & Co.' At June 6, 1885, the same directors being pres- a meeting of the board of directors held May ent, when said request was disposed of by 12, 1888, it was resolved that legal complimeans of certain resolutions offered by Ma- cation as to those 300 shares prevented the dill, reciting the resolutions of January 6, board from complying with this demand. In 1868, for the increase of capital stock, and the meantime, at a previous meeting of the . the agreement of February 3, 1868, for the board, held April 14, 1888, in pursuance of a transfer of two hundred shares to Hyde, and plan to sell 25 per cent. of all the capital continuing as follows: 'And whereas, the said stock for the use of the corporation, it was two hundred shares of stock so sold to said ordered, with the consent of all persons inWilliam Hyde as aforesaid having been is- terested in the old firm and in the said three sued to said Hyde in pursuance of said state- hundred shares, that a certificate should isment of the record as aforesaid, of February sue for twenty-five of said latter shares, to 3, 1868; and whereas, the remaining $30,000, be sold for the benefit of the corporation, three hundred shares of said stock, so placed but without prejudice to the rights of the to the credit of George Knapp & Co., under old firm in the residue of said shares. This the name of "Old Firm," by the said resolu- was done, and counsel on both sides here tion adopted January 6, 1868, have never concede that the remaining two hundred and been disposed of in any way, and the pur- twenty-five shares, only, are in controversy pose for which the same were placed to the in this case. I find that John Knapp, as surcredit of the old firm cannot be in any way viving partner of the old firm or copartneradvanced or effected by their so remaining ship of Geo. Knapp & Co., entered upon the to the credit of the old firm; and whereas, administration thereof, but died in Novem. no certificate has ever been issued to said old ber, 1888, pending his said administration. firm or to any person for $30,000, three hun. and that soon afterwards the plaintiff, dred shares of stock: Therefore, be it re. Charles W. Knapp, became administrator of solved that in so far as the said resolution of the estate of John Knapp, and, as such, took January 6, 1868, authorizing $30,000, three charge of and is administrating the said cohundred shares of stock, so remaining un partnership estate now. He sues here in sold, to be placed to the credit of the old firm that capacity. It is shown that, during and of George Knapp & Co., be, and the same is since the year 1889, the defendant has dehereby repealed, and the secretary of this clared dividends on its capital stock as folcompany is hereby authorized and directed lows: 3 per cent. January 22, 1889; 3 per to take said $30,000, three hundred shares of cent. July 9, 1889; 3 per cent. December 26, stock, so remaining unissued and unsold as 1889; 3 per cent. June 6, 1890; 3 per cent. aforesaid, from the credit of the old firm of December 23, 1890; 3 per cent. March 10, George Knapp & Co., as aforesaid, by proper 1891." entries in the books of the company, and to The referee found in favor of plaintiff, and place the same in the stock account of the that he was entitled to judgment, which was company, as unsold stock of this company, rendered accordingly. Defendant then filed where the said property belongs.' These exceptions to the report, which were overresolutions were adopted by the votes of Ma- ruled. Exceptions were duly saved, and an dill and Clubb. John Knapp voted against appeal taken to this court. them, and filed the following protest: ‘I, The vital question for our consideration is John Knapp, protest against the passage of whether or not the firm of George Knapp & the above resolutions, and repeat my de- Co. was the beneficial owner of the 300 shares mand to have the certificate for three hun- of stock, or any part thereof, as claimed by dred shares of stock issued to me, as the plaintiff, as administrator of that estate. The surviving partner of the old firm of George stock in controversy was created by increasKnapp & Co. John Knapp.' As a matter ing the original capital stock, which was of fact, nothing was ever done under these $300,000, up to $500,000, which was authorized resolutions; and John Knapp afterwards re- by the article of incorporation, and which was newed his application for a certificate for disposed of by resolution passed by the corsaid shares, in a written demand made by poration on January 6, 1868. It will be obhim to the board of directors, under date of served that this resolution, after a preamble, May 11, 1888, as follows: "To the Board of stating that “it is considered necessary, in Directors of the Corporation Pub. George order to secure the services of new parties Knapp & Co.-Gentlemen: The partnership in the working department of the corporation estate of George Knapp & Co., of which, as of George Knapp & Co., to increase the capisurviving partner, I am administrator, is the tal stock from three hundred thousand dolowner of three hundred shares of the capital | lars to five hundred thousand dollars," did stock of your corporation, credit for which so increase it, and then disposed of the in

v.27s.W.no.4-22

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