of the revenue at the time he commenced the suit to subject the land to the payment of the taxes, at the time he obtained the judgment, at the time he purchased, and at the time of the execution of the sheriff's deed to him, could not, and did not, acquire legal title to said land; that the deed executed to him by the sheriff is null and void, and therefore defendant took no title by Million's quitclaim deed to him as against these plaintiffs They asked the following instructions: "(1) On the pleadings and evi dence in this cause, the verdict should be for the plaintiffs. (2) The deed read in evidence from William C. Fletcher, sheriff of Clark county, Missouri, to Joseph H. Million, dated October 26, 1888, is void upon its face, and did not convey to said Joseph H. Million the legal title to the lands therein mentioned and described. (3) It is admitted that Joseph H. Million was, in the year 1888, collector of the revenue of Clark county; he commenced an action in the circuit court of said county of Clark, in the name of the state of Missouri, at the relation of and to the use of said Million, against the following named persons: Peter H. Weaver, George F. Weaver, Ora and William Gill, Cora B., Martha E., and Edith J. Clark. Elijah and Elisha Church, and Abraham Clark,-to enforce the payment of taxes charged against the land described in the plaintiff's petition, viz. 13 and 33-100 acres off of the west side of the southeast fourth of the northwest quarter of section 27, township 65, range 6 west, in Clark county, Missouri; that judg ment was rendered on said suit; that an execution was issued on said judgment at the instance of said Million, and levied on said land by the sheriff of said county, William C. Fletcher; that said land was by said sheriff, on the 26th day of October, 1888, during the setting of the circuit court of said county, sold, and the said Joseph H. Million, while still collector of the revenue of said county, became the purchaser of, said land, at said sale, for the price and sum of ninetyseven dollars; that thereupon the said William C. Fletcher, the sheriff of said county, executed and delivered to said Million the deed therefor, which was read in evidence; that, while still collector of the revenue as aforesaid, to wit, on the 14th day of December, 1888, the said Million conveyed said land to defendant Hand, by deed of quitclaim. Now, the court declares the law to be that said deed of said sheriff, William C. Fletcher, of date October 26, 1888, to said Million, is null and void, and conveyed no title to the lands therein described to said Million, and therefore the quitclaim deed from said Million to said Hand, of date December 14, 1888, conveyed no title to said Hand, and therefore the verdict should be for the plaintiff." The court refused all of said instructions, and in due time plaintiffs excepted, and filed their motion for new trial, which was overruled, and they appealed.

John C. Anderson, for appellant. O. S. Callihan, for respondent.

GANTT, P. J. (after stating the facts). 1. The learned counsel for plaintiffs urges, with great earnestness, that the tax deed by the sheriff to the tax collector, Million, is void because it is against public policy to permit a tax collector to purchase at an execution sale under a judgment obtained by him for taxes. Counsel correctly assumes that a publie officer charged with the duty of selling property for the best price cannot himself become the purchaser, and that a sale made by an agent or trustee to himself will not be sustained by the courts. These salutary and fundamental principles are not controverted by counsel for defendant, but he insists that both reason and the authorities distinguish between a sale by a tax collector to himself and a sale to him by a sheriff made under a judgment and execution of the circuit court; that, after the execution came to the hands of the sheriff, the sheriff, and not the collector, was charged with its execution and the responsibility attending the sale. It will be observed that counsel present the naked proposition that a purchase by the collector at the sheriff's sale is void. No collusion or conspiracy is charged, no suggestion is made of unfairness or irregularity in the time or manner of sale, or inadequacy of the bid. A careful examination of each and every case cited by plaintiffs discloses that in every instance in which the sale was held void or voidable it was under a tax law in which the collector himself made the sale, and either by himself or deputy purchased the land, or, if sold by a sheriff or constable, he purchased at his own sale. The great underlying principle in all these cases is that the duty of the seller is inconsistent with the interest of the purchaser, and when there is such a conflict the temptation is too great to subordinate the former to the latter, and public policy forbids the transaction; but under the tax law of 1877, and subsequent amendments, sales of lands for taxes in Missouri are made under judgments of the circuit courts, and executions issued thereon to the sheriffs as under other judgments. The sheriff, and not the collector, is charged by law with the execution of the process. He advertises and conducts the sale, and the collector has no control of the process, other than to stop the sale if the owner shall pay the taxes and costs. The cases cited from other jurisdictions whose proceedings were wholly unlike ours throw no light upon the subject further than to illustrate the general principle that an agent cannot be both seller and buyer. The law of this state no longer imposes upon the collector the duty of making the sale. The state, at his relation, obtains the judgment, and after that the collection of the tax is intrusted to the clerk and sheriff. Many cases hold that public officers other than the one who makes the tax

sale may purchase at such sales, and that such purchases are not opposed by public policy. The cases in this state which furnish the strongest analogy to this in principle are the cases of Dillinger v. Kelley, 84 Mo. 565, and Briant v. Jackson, 99 Mo. 585, 13 S. W. 91, in which it was held that, although our statutes forbid administrators to purchase the lands of their intestates, that prohibition only extended to probate sales made by themselves, and they are not denied the right to purchase such lands at sales made by sheriffs under the judgments of the circuit courts. In Briant v. Jackson, Ray, C. J., says: "Having as said administrator recovered said judgment, it was his privilege and duty to direct the clerk to issue the execution, and this, we suppose, was done by the administrator in this case, or his attorney; but, after the execution came to the hands of the sheriff, the sheriff, and not the administrator, was charged by law with the execution of the process, with the return and application of the purchase money, with the due execution of proper deeds to the purchasers, and, in short, with the entire responsibilities of the sale." The collector of taxes cannot stand in a closer trust relation than an administrator, and, if the law does not forbid a purchase by an administrator when a sheriff sells under judgment and execution, no good reason can be given why it should forbid the collector the same privilege, in the absence of fraud, conspiracy, or collusion. Our conclusion is that the mere fact that the collector bought the land at the sheriff's sale will not render his deed void, and the court committed no error in so holding.

2. But as the evidence was uncontradicted that Henry Church died seised of the land, and that Mrs. Walcott was one of his children and heirs at law, and entitled to an undivided one-sixth of said lands, and was not made a defendant in said tax suit, it is clear that said tax proceedings did not divest her interest, and, while she was not entitled to all of said lands, we think the court, upon the showing made, erred in not giving her judgment for her aliquot part thereof; and, for this cause, the judgment is reversed, and the cause remanded for new trial in accordance with this opinion.

officer. On the death of one of them, his administrator was elected a director in his place. Afterwards the directors passed a resolution to increase the capital stock to $500,000, and that disposition of the increase be made as follows: $50,000 to each of the surviving incorporators, $50,000 to the estate of the deceased incorporator, and $50,000 "to be placed to the credit of the old firm to be disposed of as thought proper by the present directors of the company," the disposition to be specially noted in the proceedings at the next meeting of the directors. The increased stock was credited accordingly. Held, that the stock placed to the credit of the firm was not a gift but was in trust, and that it took no beneficial interest therein.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Charles W. Knapp, administrator of the copartnership estate of George Knapp & Co., against Publishers, George Knapp & Co., a corporation, to recover dividends on certain stock of defendant. From a judgment for plaintiff, defendant appeals. Reversed.

Seddon & Blair and Boyle & Adams, for appellant. Pollard & Werner, for respondent.

BURGESS, J. From a judgment in favor of plaintiff against defendant in the sum of $4,425.25, for dividends on stock in defendant's corporation, defendant appeals. The petition, in substance, alleges that John Knapp died in November, 1888, while administrator, as surviving partner, of the partnership estate of George Knapp & Co., and that plaintiff is his administrator, and as such owns 300 shares of stock in the defendant's corporation, on which, since January 1, 1889, dividends have been declared by defendant aggregating $5,400, for which he asks judgment. Defendant, in its answer, admits its incorporation, with a capital stock of $500,000, divided into 5,000 shares of $100 each, but denies all other allegations in the petition. The parties stipulated as follows: "For the purposes of this case only, it is hereby stipulated and agreed by and between the parties to the above-entitled suit that if the firm of George Knapp & Co. shall be found to have been the beneficial owner, and if the plaintiff, as administrator of the estate of said firm, still has such ownership, of all and any of the three hundred shares of stock mentioned in the petition, judgment shall be rendered for the plaintiff, as such administrator, for $18 a share as dividends, together with such interest thereon, if any, to which plaintiff may show he is entitled, on as many shares as it shall be found that said firm so owned, and he, as such administrator owns. If, however, the plaintiff shall not prove that said firm beneficially owned, and that he, as such administrator, owns, and is entitled to, any of said three hundred shares, judg ment shall go for this defendant."

By consent, the case was referred to Arba N. Crane, to try all the issues, whose statement of facts we adopt. They are stated by the referee to be as follows:

"It appears that, in and prior to 1864, George Knapp, Nathaniel Paschall, and John Knapp were equal copartners, under the firm name of George Knapp & Co., engaged in the business of newspaper, book, and job printing, and well known as publishers of the Missouri Republican, in St. Louis; that, in April of that year, these members of said firm, in conformity with the provisions of the Missouri act of February 15, 1864, for organizing business companies, formed a corporation, in the firm name of George Knapp & Co., to engage in substantially the same business as the firm had conducted. The capital stock of the corporation was fixed at $300,000, with the privilege of increasing it up to $500,000, divided into shares of $100 each, the business to be managed by a board of directors, who, for the first year, were to consist of the three incorporators. The by-laws of this corporation provided for a president, an editor, a secretary, and a treasurer, and on the 15th of April, 1864, the board elected to those offices George Knapp, president, Nathaniel Paschall, editor, and John Knapp, secretary and treasurer. On the same day, the corporation, then organized, purchased of said firm of George Knapp & Co., and the latter transferred to the corporation, the Misouri Republican newspaper and job office and book bindery, and the Republican building and grounds on Chestnut street, 'and all the stock and fixtures, together with the debts due George Knapp & Co. now on the books of said firm of George Knapp & Co., except what is known as stocks, Charlevoix property, and real estate, independent of the Republican building mentioned above.' For this property, the corporation agreed to pay all the debts of the firm, and also the sum of $358,267.44. Of this purchase price, $300,000 was presently paid in the capital stock of the corporation, as follows: $100,000 to George Knapp; $100,000 to Nathaniel Paschall; and $100,000 to John Knapp,-and these members of the firm gave the corporation their several receipts as for so much money on account of their interest in the Republican establishment, and were credited with capital stock to that amcunt on the books of the corporation, but no certificates were issued of the stock at this time. The balance, of $58,267.44, of the purchase price was passed to the credit of the members or the firm on the books of the corporation, to be paid as they might desire, as follows: To George Knapp, $6,413.35; to Nathaniel Paschall, $22,254.11; and to John Knapp, $29,599.98. Notwithstanding these transactions, the copartnership of George Knapp & Co. was not now dissolved, but was continued, on account of its interests outside of the interests of its members in the corporation, and its business was afterwards transacted by the same management and clerical force' as conducted the corporation, and practically its transactions were carried into the corporation, as a depositary or agent to receive and pay out the

moneys of the firm, and the amount of the business of the firm, including occasional entries of undivided profits of the corporate business, was kept on the books of the corporation in the name of the 'Old Firm,' that being the name by which the firm of George Knapp & Co. was known in its dealings with the corporation. The business of the corporation itself was conducted as first organized, without change of officers or directors, until the death of Nathaniel Paschall, in December, 1866; whereupon, at a meeting of the board held January 7th, Henry G. Paschall, who was administrator of the estate of his father, said Nathaniel, was elected a director in his place. Subsequently, on the 4th day of February, 1867, the office of editor was abolished, and Henry G. Paschall was elected as secretary in the place of John Knapp, who resigned that office. At a meeting of the board as last constituted, held January 6, 1868, the following resolutions were adopted: 'Whereas, it is considered necessary, in order to secure the services of new parties in the working department of the corporation of George Knapp & Co., to increase the capital stock of the company from three hundred thousand dollars to five hundred thousand dollars: Therefore, be it resolved that the capital stock of George Knapp & Co. be increased to five hundred thousand dollars, and that disposition of said increase be made as follows: Fifty thousand dollars to George Knapp; fifty thousand dollars to estate of Nath. Paschall; fifty thousand dollars to John Knapp; and fifty thousand dollars to be placed to the credit of the old firm, to be disposed of as thought proper by the present directors of the company, and, when disposition is made of any portion of said stock, the same to be specially noted in the records of the proceedings at the next meeting of the board of directors.' This increase was based on the original property of the corporation and its increased value up to this time, and, in the proportions and amounts stated in these resolutions, was credited to the several parties therein mentioned, in their accounts with the corporation kept on the ledger, and also in the book containing the records of the meetings of the board of directors; and the evidence tends to show that these credits were entered at the time the stock was increased. Following out the purpose indicated in the resolutions to secure the services of new parties in the working department of the company, the board of directors now arranged with William Hyde for the transfer to him of two hundred shares of this increase of capital stock that had been credited to the old firm. The transaction is set out in the record of the meeting of the board held February 3, 1868, as follows: 'In accordance with the authority conferred by resolutions adopted January 6, 1868, the undersigned directors have disposed of two hundred shares of the stock of George Knapp & Company to William Hyde, upon the fol

lowing terms and conditions, which are to be transferred to him when the stock is fully paid up, according to the terms and conditions, as follows: When the dividends on the two hundred shares, and the semiannual credits, seven hundred and fifty dollars, and such other sums as he may from time to time pay, shall amount to ten thousand dol lars, in addition to the interest at the rate of six per cent. per annum on ten thousand dollars of said stock, then two hundred shares, being twenty thousand dollars of the stock of said company, shall be transferred to him. It is understood that ten thousand dollars of said stock is presented to said William Hyde in consideration and as an inducement that he will give his undivided personal attention to the interest of the establishment, independent of the consideration of his salary. George Knapp. John Knapp. Henry G. Paschall.' As this was the only instance in which the stock of the old firm was disposed of for the purpose mentioned in the resolutions of January 6, 1868, it is proper to notice the way it is carried out. An account was opened with Mr. Hyde, in which he was debited with $10,000 for the two hundred shares. This account was ultimately closed in the manner agreed upon, and a certificate issued for stock. By an entry in the ledger of the corporation, under date of February 1, 1868, the old firm is credited, 'By Wm. Hyde, $10,000; and by a subsequent entry under date of July 1, 1868, the old firm is credited, 'By contingent, $10,000.' The evidence tends to show that these entries were payments by the corporation to the old firm for the aforesaid two hundred shares transferred to William Hyde.

"In the course of the business of the corporation, dividends were from time to time passed to the credit of the stockholders. These dividends, in two or three instances, were declared and recorded at regular meetIngs of the board of directors, but, down to 1884, were usually determined upon at informal consultations of the directors, from an inspection of the semiannual balance sheets of the business. This was done under the immediate direction of John Knapp, the business manager of the corporation. With respect of the dividends after the increase of the capital stock, the old firm was treated as a stockholder, and credited with dividends proportional to the shares of stock standing to its credit on the books of the corporation, amounting, after the sale fee to Hyde, to three hundred shares. It is observable, however, that the old firm is in no instance mentioned as a stockholder to receive dividends, when declared at meetings of the board of directors, when the usual form was to fix the per cent., and direct the payment at that rate to the three stockholders, George Knapp, John Knapp, and the estate of Nathaniel Paschall. But, as already stated, the old firm was always credited, in its account with the corporation on the corporation book, with

these dividends. Thus, it stands credited with dividends as follows: June 25, 1868, $3,000; December 31, 1868, $1,500; May 31, 1869, $1,500; December 31, 1870, $1,500; June 24, 1871, $1,800; December 31, 1871, $1,500; June 30, 1880, $4,200; June 30, 1882, $1,800; March 15, 1883, $900; March 15, 1884, $1,900. A dividend of 4 per cent., or $1,200, on the shares of the old firm, was declared June 30, 1883, but, instead of being credited like the others of the old firm, was distributed directly among the representatives of the old firm. On May 24, 1870, the Republican building was destroyed by fire, and between 1871 and 1880 no dividends were declared. In January, 1870, a call of 10 per cent. on the capital stock was made by the directors of the corporation, and the old firm paid that call on the 300 shares standing to its credit. It amounted to $3,000. In November, 1879, a stockholders' meeting was had to vote on a proposition to change the name of the corporation, which resulted in adopting the name of 'Publishers, George Knapp & Co.,' by which the corporation is now known. At this meeting, John Knapp voted the three . hundred shares of the old firm. This seems to have been the first vote by the stockholders after the stock was increased. In September, 1883, George Knapp died, and, in the following October, Girard B. Allen was elected a director, and John Knapp president in his place. At a stockholders' meeting held April 14, 1884, John Knapp, Girard B. Allen, and Samuel C. Clubb were elected directors, being the first election of directors since the organization of the corporation, in April, 1864. At this meeting the old firm shares were again voted. This board or ganized by electing Allen president, Clubb vice president, and continuing Henry G. Paschall as secretary.

"The evidence is not very full on the matter of changes in holdings of capital stock up to this time. There had been transfers of shares to no stockholders besides Hyde, but I infer that, up to about the time of the death of George Knapp, the new parties had been entirely brought in from the families of the original incorporators. Transfers to some of these had been made as early as 1872; but whether any certificates of stock had been issued prior to 1878 is doubtful. None were issued until after Henry G. Paschall became secretary, and he at first fixed upon 1878 as the date of the first issues, but finally confessed a doubt when he filled them out, except that it was in 1868 or 1878, or some time between those years. It is quite certain that no certificate ever issued for the three hundred shares standing to the credit of the old firm. Mr. Paschall, testifying here, says that the reason no certificate was issued was that they all along anticipated using more of those shares, as was done with Hyde, and it was more convenient for that purpose to have them stand as they were. At a meeting of the directors held June 2, 1885, Samuel

C. Clubb, John Knapp, and George A. Madill, successor of G. B. Allen, being present, John Knapp requested that a certificate issue for the three hundred shares standing to the credit of the old firm to him, as administrator of the firm. Action on the request was deferred to an adjourned meeting, held June 6, 1885, the same directors being present, when said request was disposed of by means of certain resolutions offered by Madill, reciting the resolutions of January 6, 1868, for the increase of capital stock, and the agreement of February 3, 1868, for the transfer of two hundred shares to Hyde, and continuing as follows: 'And whereas, the said two hundred shares of stock so sold to said William Hyde as aforesaid having been issued to said Hyde in pursuance of said statement of the record as aforesaid, of February 3, 1868; and whereas, the remaining $30,000, three hundred shares of said stock, so placed to the credit of George Knapp & Co., under the name of "Old Firm," by the said resolution adopted January 6, 1868, have never been disposed of in any way, and the purpose for which the same were placed to the credit of the old firm cannot be in any way advanced or effected by their so remaining to the credit of the old firm; and whereas, no certificate has ever been issued to said old firm or to any person for $30,000, three hundred shares of stock: Therefore, be it resolved that in so far as the said resolution of January 6, 1868, authorizing $30,000, three hundred shares of stock, so remaining unsold, to be placed to the credit of the old firm of George Knapp & Co., be, and the same is hereby repealed, and the secretary of this company is hereby authorized and directed to take said $30,000, three hundred shares of stock, so remaining unissued and unsold as aforesaid, from the credit of the old firm of George Knapp & Co., as aforesaid, by proper entries in the books of the company, and to place the same in the stock account of the company, as unsold stock of this company, where the said property belongs.' These resolutions were adopted by the votes of Ma dill and Clubb. John Knapp voted against them, and filed the following protest: 'I, John Knapp, protest against the passage of the above resolutions, and repeat my demand to have the certificate for three hundred shares of stock issued to me, as the surviving partner of the old firm of George Knapp & Co. John Knapp.' As a matter of fact, nothing was ever done under these resolutions; and John Knapp afterwards renewed his application for a certificate for said shares, in a written demand made by him to the board of directors, under date of May 11, 1888, as follows: To the Board of Directors of the Corporation Pub. George Knapp & Co.-Gentlemen: The partnership estate of George Knapp & Co., of which, as surviving partner, I am administrator, is the owner of three hundred shares of the capital stock of your corporation, credit for which v.27s.w.no.4-22

is given on your corporation books under the title of "Old Firm." I desire you to issue a certificate of said three hundred shares to me as such administrator, and I hereby make formal demand on you for the issue to me of said certificate. Yours, etc., John Knapp, Adm'r Part. Est. George Knapp & Co.' At a meeting of the board of directors held May 12, 1888, it was resolved that legal complication as to those 300 shares prevented the board from complying with this demand. In the meantime, at a previous meeting of the. board, held April 14, 1888, in pursuance of a plan to sell 25 per cent. of all the capital stock for the use of the corporation, it was ordered, with the consent of all persons interested in the old firm and in the said three hundred shares, that a certificate should issue for twenty-five of said latter shares, to be sold for the benefit of the corporation, but without prejudice to the rights of the old firm in the residue of said shares. This was done, and counsel on both sides here concede that the remaining two hundred and twenty-five shares, only, are in controversy in this case. I find that John Knapp, as surviving partner of the old firm or copartnership of Geo. Knapp & Co., entered upon the administration thereof, but died in Novem ber, 1888, pending his said administration. and that scon afterwards the plaintiff, Charles W. Knapp, became administrator of the estate of John Knapp, and, as such, took charge of and is administrating the said copartnership estate now. He sues here in that capacity. It is shown that, during and since the year 1889, the defendant has declared dividends on its capital stock as follows: 3 per cent. January 22, 1889; 3 per cent. July 9, 1889; 3 per cent. December 26, 1889; 3 per cent. June 6, 1890; 3 per cent. December 23, 1890; 3 per cent. March 10, 1891."

The referee found in favor of plaintiff, and that he was entitled to judgment, which was rendered accordingly. Defendant then filed exceptions to the report, which were overruled. Exceptions were duly saved, and an appeal taken to this court.

The vital question for our consideration is whether or not the firm of George Knapp & Co. was the beneficial owner of the 300 shares of stock, or any part thereof, as claimed by plaintiff, as administrator of that estate. The stock in controversy was created by increasing the original capital stock, which was $300,000, up to $500,000, which was authorized by the article of incorporation, and which was disposed of by resolution passed by the corporation on January 6, 1868. It will be observed that this resolution, after a preamble, stating that "it is considered necessary, in order to secure the services of new parties in the working department of the corporation of George Knapp & Co., to increase the capital stock from three hundred thousand dollars to five hundred thousand dollars." did so increase it, and then disposed of the in