(232 S.W.) "If you find from a preponderance of the evi- Defendant's instruction above set forth, as dence in this case that the note sued on was well as instruction numbered 2, given at his executed by defendant to procure money with instance, are similar in purport. They deal which to purchase the north half of section with the question of the contract or agree-. 8, township 4 north, of range 7 east in Critten-ment made between the defendant, on the one den county, Ark., for the Pemiscot Lumberment made between the defendant, on the one Company, and that thereafter defendant drew a hand, and the trustees as agents of the bank, draft on said bank in favor of the owner for on the other, in which defendant contends $4,901.67, the balance of the purchase money that he agreed to and did surrender his claim due him, and that defendant honestly and in of $6,000 against the lumber company in good faith believed that the proceeds of his consideration of a release by the bank of the note was used by said bank to pay said draft note sued on. It is the contention of the and reimburse A. C. Tindle for $1,000 pre- plaintiff that, although the making of this viously sent by him to defendant to pay on said purchase price, and if you further find agreement be conceded, the parties with from the evidence that said bank failed, and whom it was made, namely, the trustees, its property was turned over to the State were appointed by the court, and were simply Banking Commissioner, and by him to S. P. its agents, with no power to act except in Reynolds, as state special agent, and that in pursuance of its order, and hence that they assembling the assets of said bank said J. A. were not authorized to compromise or settle a Cunningham, the president, secured all the capi- claim due the bank for less than its face valtal stock of said Pemiscot Lumber Company, ue without the permission of the court. The as trustee for said bank, and that said Cunning- correctness of this rule under a state of facts ham, as trustee, and Reynolds, as state agent, discovered that the title to a large body of supporting same cannot be gainsaid; but, if land belonging to said lumber company had the defendant's testimony is to be believed been conveyed to W. E. Elder, the secretary and his right to have it submitted to the of said company, and that said Reynolds, as jury cannot be questioned, then the trustees special agent, and Cunningham, as president did not in this settlement sacrifice any legitof said bank, sought the services of defendant imate claim due the bank. If as agents of to divest the title to said land out of said Elder the bank in collecting its assets the trustees and vest it in said lumber company, and that acquired the capital stock of the Pemiscot thereupon said defendant informed said Rey- Lumber Company, then that stock became a nolds and Cunningham that if they, as the representatives of said bank, insisted that he was part of the bank's assets, charged, however, liable to said bank upon the notes sued on that he (defendant) would undertake to subject said north half of section 8, township 4 north, range 7 east to the payment of same; and if you further find from the evidence that it was agreed between the parties that, if defendant did release his claim to said land and recover said land for said lumber company, said bank would release defendant from liability on said note, or if you believe from the evidence that said Reynolds and Cunningham, as the agents of said bank, by their acts, words, or conduct led defendant to believe that, if he did release his claims to said land and recover the same for said lumber company, the Pemiscot County Bank would release defendant on said note, and said defendant, relying thereon, released his claim against said land and lumber company and recovered said land for said lumber company, then your verdict should be for the defendant." It is to the italicized portion of this instruction to which particular objection is made. with the indebtedness of the lumber company, and, if the latter was solvent and owed the defendant $6,000, and the defendant owed the bank a like amount, and the bank owed the lumber company, the situation presented was, as the defendant states the trustees declared it to be, viz. "as broad as it was long," in that, if defendant paid the trustees, they in turn would have to pay him a like sum, This being true, there was, so far as this record discloses, neither a cancellation, compromise, nor settlement of an indebtedness to the bank for less than the face value of same, and hence the rule invoked as to the limitation of the power of the representatives of the bank can have no application here. with their officers to take notice of the limi[4] While courts require those who deal tation which the law places upon their powers, this does not preclude such officers from pursuing such a course as should characterize every business transaction, whether performed individually or in a representative An instruction was given at the request of capacity. If the facts are as the defendant the plaintiff submitting the issue of the declares them to be, judicial sanction should agreement embodied in the foregoing instruc- not be given to the course pursued by the tion of defendant. Plaintiff's instruction, representatives of the bank in this matter. however, does not embrace the defense of es- We do not desire to, nor will we, draw any toppel, which is submitted in the italicized invidious distinctions between the testimony portion of defendant's instruction. There of the respective parties hereto, further than is no rule of law or equity which precludes our rules of procedure require, in that we the right of the defendant to thus interpose will recognize the superior probative force this defense in the manner in which it is of any substantial testimony, the verity of made under the facts at bar, and, so far as which has been approved by the jury. The this objection to the instruction goes, it must jury, well within their province, have deterbe held to be without merit. mined to give credence to the testimony of the defendant rather than that of the rep- [accepted and received the property and reresentatives of the bank. A summary of the tained it, then the debt sued on had been defendant's testimony, corroborated by that paid. of the witness Tindle is that, by reason of the representations of the trustees, defendant was caused to lose his right to secure from the assets of the lumber company the amount it owed him equal to that of the face of his note given to the bank; that the course pursued by the trustees prevented defendant from enforcing an equitable lien upon the half section of land then owned by the lumber company. While this course of conduct was, no doubt, pursued in an effort to enlarge the bank's assets and with no desire to limit the rights of the defendant, it nevertheless had this effect, and in the face of the record this course does not meet with our approval. The giving of instruction numbered 4 at the instance of the defendant is assigned as error. It is as follows: [5, 6] Ordinarily a conveyance by a mortgagor to a mortgagee of the fee in mortgaged lands results in a merger of the legal and equitable titles and in the resultant satisfaction of the entire debt secured by the mortgage. 27 Cyc. pp. 1378, 1379, and cases cited. This result it may be conceded is dependent in many cases upon the evidence as to intention of the parties at the time the equity is conveyed. The jury in believing Tindle evidently found that, when he executed the deed to the representatives of the bank, he had an equity or interest in the property to the extent of $8,000, and that he surrendered this interest in consideration of a complete settlement and satisfaction of his direct and indirect indebtedness to the bank, including, as he stated, the note sued There was, to say the least, substantial evidence upon which to base such a finding, and hence the instruction was not error. The defendant's right to a verdict, however, in view of his other defenses, pleaded and proved, need not be made to depend on this instruction; and its discussion is pertinent if for nothing more than to show that its giving did not constitute error authorizing "The court instructs the jury that, if you find and believe from the evidence in this case that the said A. C. Tindle and wife executed a deed of trust to and in favor of J. A. Cunningham as trustee for the Pemiscot County Bank upon all of the property which the said A. C. Tindle owned, reserving the right to use said property and collect the rents and profits for a period of a year, and if you find and believe from the evidence in this case that subse- a reversal. quently said A. C. Tindle conveyed his entire interest, including the rent in said land, for the consideration of the release, settlement, and satisfaction of all indebtedness which the said A. C. Tindle owed said bank either directly or indirectly, and if you further find and believe from the evidence that the indebtedness sued on herein was included in said release, settlement, and satisfaction, and that said bank accepted and received said property and retained same, then you are instructed that said debt has been paid, and that the plaintiff can not recover in this case." This instruction is based on the testimony of Tindle, who stated that the rents and profits of his mortgaged property was of the value of $10,000 per year, and at the time of his release of the equity of redemption he was entitled to collect rents and profits for ten months, amounting to about $8,000, which he surrendered when he entered in to the release, settlement, and satisfaction of all of his indebtedness to the bank directly or indirectly, as shown in a written instrument signed by Tindle and Cunningham, one of the trustees, on July 12, 1913. The witnesses for the plaintiff denied the truth of this statement, but the jury gave credence to the testimony of Tindle. It was upon this testimony that the above instruction was given. It simply told the jury that, if Tindle released his equity in consideration of the settlement and satisfaction of his indebtedness to the bank directly or indirectly, and that the indebtedness sued on was included in that settlement, and the bank [7] IV. It is contended that the testimony was not sufficient to authorize the submission of the defense of estoppel to the jury. Tindle, the former cashier of the bank, testified that at the time the defendant's note to the bank was discounted he explained to the president and one of the directors, who are the trustees representing the receiver in this suit, the purpose for which the note was given and the reason he desired it discounted; that the defendant was not then nor had he ever been a patron of the bank; that he (Tindle) told these officials that the money was to be used in the purchase of the half section of Arkansas land for the Pemiscot Lumber Company, and that the note was discounted by them for the bank with full knowledge at the time of all of these facts; that they knew that the defendant was not the beneficiary in the transaction, and that the lumber company was to pay the note when it became due. These facts are denied by the trustees, but the jury believed, as they had a right to do, Tindle's testimony. Aside from our duty to accept the finding by the jury of the facts when supported by any substantial evidence, we clined, when we take into consideration the entire atmosphere of this case, to question the correctness of the jury's finding in this regard. If, therefore, Tindle's testimony be true, then the bank could not at law have enforced the payment of this note by the defendant, and the plaintiff by reason of its appointment and authority as receiver could (232 S.W.) not acquire any greater rights or power to assemble or collect the assets of the bank than that possessed by its directors. This is elementary, and the citation of authorities is unnecessary to sustain this conclusion. V. Error is assigned in the refusal of certain instructions asked by the plaintiff. Instruction numbered 5 was properly refused because it omitted, in hypothesizing the facts, any reference to the specific purpose for which the defendant gave the note sued on. [8] Instruction numbered 7 told the jury that, if the draft issued by the defendant in favor of the party who held the title to the half section of Arkansas land in payment of the purchase price of same was paid out of funds of the bank and not derived from the proceeds of the defendant's note, then the defendant had no such interest in the land as would give him a lien thereon. Thus framed, the instruction was incorrect, in that it eliminated from the consideration of the jury the question as to whether or not the proceeds of the defendant's note had been diverted from the purpose for which it had been made. There was certainly no authority for the giving of this instruction in the face of the fact that the defendant had not directed any other disposition of the proceeds of the note, except in payment of the purchase price of the land. [9] Instruction numbered 71⁄2 told the jury that, if the directors of the bank had no knowledge that defendant's note was held by the bank, then they were not required to notify him that it had not been paid, and that plaintiff is not estopped by reason of this failure of notice. This instruction stated no contested issue and was based upon no contention made during the trial. The only possible relevancy of any statement in regard to a lack of notice which appears in the record was a circumstance incidentally to show that the note was not regarded as an obligation of the defendant due the bank. The fact that it was thus shown constituted no issue authorizing the requested instruction. Instructions numbered 8 and 9, refused, did not involve any issues presented by the testimony, and hence need not be considered. [10] Instruction numbered 10, requested by the plaintiff, was as follows: else of their obligations to said bank, and you cannot find for the defendant by reason of such contract, even should you believe such contract was made and entered into between the parties." This instruction ignores material facts upon which the defendant based his defense, and hence was properly refused. The conclusion of the law arising from this statement of facts is incorrect as applied to the instant case. There was no evidence that the representatives of the bank relieved the defendant or any one else of their obligations due the bank. In their settlement with defendant they received full consideration or payment of his note in causing him to release to the bank the obligation of the Pemiscot Lumber Company. In view of all of which we are of the opinion that the plaintiff has suffered no substantial injury in the refusal of the instructions above referred to. A careful review of the entire record discloses no rulings in regard to the admission or exclusion of testimony which materially affected the rights of the plaintiff. [11] VI. In this case, as in Young v. Glascock, 79 Mo. 574, leave was given the defendant to amend so as to admit proof of payment. The amendment was not made at the time in either case. In the Young-Glascock Case the court subsequently refused to permit the amendment on the ground that it was unnecessary, and there, as here, proof was offered as if the amendment had been made. In the instant case the amendment was not later made, but the court in its instructions proceeded as though it had been. The amendment proposed was material and the proof offered was relevant. In the Young-Glascock Case we held in furtherance of justice that we would treat the case as though the amendment had actually been made, instead of refused by the trial court. We see no reason why the same rule should not apply in the case at bar, although the amendment was probably inadvertently omit- . ted. This being true, there is no conflict between this case and that of Young v. Glascock and cases to like effect. Underwood v. Bishop, 67 Mo. 374; Shantz v. Shriner, 167 Mo. App. 635, 150 S. W. 727; Locke v. Bowman, 168 Mo. App. 121, 151 S. W. 468. [12] While it is true, as a general rule, "The court instructs the jury that, if you be- that in an ordinary money demand the fact lieve and find from the evidence that the Pemis- of payment is in the nature of new matter cot County Bank had been placed in the hands and by our Code inadmissible under a simof the Bank Commissioner of the State of Mis- ple denial (Wilkerson v. Farnham, 82 Mo. souri prior to the time defendant alleges the 672, and later cases), this rule cannot be contract was entered into between defendant held applicable under the facts here in view and J. A. Cunningham and S. P. Reynolds by of its modification as approved in the Youngthe terms of which defendant was relieved from paying said note, then you are instructed Glascock Case. There is, therefore, no conthe said J. A. Cunningham and S. P. Reynolds flict between the case at bar and that of had no authority to make such contract on Wilkerson v. Farnham. We have elsewhere behalf of the Pemiscot County Bank, and had disposed of this question of conflict in holdno authority to relieve defendant or any one ing that there was no error in the giving of Original proceeding in prohibition by the State, on the relation of Frederick E. Mueller, administrator pendente lite of the estate of Francis P. Wilkinson, against G. A. Wurdeman, Judge of the Circuit Court of St. (Supreme Court of Missouri, en Banc. July 8, Louis County, and others. Preliminary rule 1921.) 1. Appeal and error 489-Property seized by receiver must, on appeal from order refusing to revoke order appointing him and giving of bond, be returned. Under Rev. St. 1919, §§ 1469, 1473, as to appeal from an order refusing to revoke order appointing a receiver, and as to stay of execution on giving the required bond, the giving of such appeal bond stays the execution of such order, and property seized by such receiver must be returned to the owner. 2. Prohibition 3 (2) - Generally refused, where appeal is adequate remedy. Generally the writ of prohibition will not be used to usurp the office of an appeal. 3. Prohibition 3 (5)-Appeal furnishes adequate remedy for refusal to revoke receiver's appointment. Under Rev. St. 1919, §§ 1469, 1473, the remedy by appeal from order refusing to revoke an order appointing a receiver affords an adequate remedy, so that prohibition does not lie as a matter of right, where the lower court is. claimed to have exceeded its jurisdiction by appointing a receiver to take charge of property which a prior order of the probate court had directed its administrator to take charge of. 4. Prohibition 16-Supreme Court, having issued preliminary writ, may retain case, though remedy by appeal adequate. Where relator had a complete, effective, and speedy remedy by appeal, so that the Supreme Court in the exercise of its discretionary powers in issuing writs of prohibition might well have refused to issue the preliminary writ, yet, having issued the preliminary writ, and the cause being before the court, the Supreme Court would proceed to dispose of the case on its merits. 5. Courts 478-Circuit court in specific performance suit authorized to appoint receiver, though property was part of a decedent's estate and probate court had appointed administrator. Where a proceeding under Rev. St. 1919, 168 et seq., to specifically enforce a contract made with a decedent, was begun in the probate court and thereafter transferred to the circuit court, the probate court thereafter had no right to make an order on the administrator issued, and, on respondent's filing his return, relator filed motion for judgment on the pleadings and to make the preliminary rule absolute. Motion denied, and preliminary rule vacated. Arthur V. Lashly, of Clayton, and Hans Wulff and Julian Laughlin, both of St. Louis, for relator. E. McD. Stevens and Roy Schooley, both of Clayton, for respondents. DAVID E. BLAIR, J. This is an original proceeding in prohibition. Preliminary rule issued. A copy of the petition was attached to and made a part of such preliminary rule. Respondent G. A. Wurdeman duly filed his return, and relator thereafter filed his motion for judgment on the pleadings and to make the preliminary rule absolute, for the reason that in his return respondent admits all of the facts alleged in relator's petition, and because the facts set up in said return in attempted avoidance of relator's right to our writ are insufficient to constitute any legal and valid reason why said preliminary rule should not be made absolute. It stands admitted that the case of Horst v. Mittelberg, a proceeding to require Arthur Mittelberg, as executor of the estate of Francis P. Wilkinson, deceased, to make a deed to said. Horst in specific performance of a contract with Francis P. Wilkinson and wife in their lifetime, was and is pending in said circuit court; that on June 28, 1920, the probate court of St. Louis county duly appointed relator as administrator pendente lite of the estate of Francis P. Wilkinson, deceased, during the pendency of a certain suit to contest the will of said Francis P. Wilkinson, deceased, pending and undetermined in division 1 of the circuit court of St. Louis county; that on the same date said probate court "purported to order and direct" relator to take charge of a tract of ground in St. Louis county containing about 77 acres of land, known as the Wilkinson farm, and that said land is all the real estate belonging to the estate of said Francis P. Wilkinson, de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) concerned, and that said administrator pendente lite could not take possession of or sell said real estate because of the pendency of the suit for specific performance before respondent. It appears from the abstract of the record that on June 28, 1920, the probate court ordered said administrator pendente lite, the relator here, to take charge and possession of said Wilkinson farm and to rent the same for one year for the purpose of paying off the debts of the estate. No appeal was taken from the order of respondent, made in his court, refusing to revoke his interlocutory order appointing a receiver and approving his bond, and directing him to take charge of the real estate in controversy. It is relator's contention in this case that ceased; that on February 26, 1920, the action [ pointed for the best interests of the parties of George Horst v. Arthur Mittelberg, executor, was transferred by writ of certiorari from said probate court to the circuit court of St. Louis county; that on July 6, 1920, respondent Wurdeman entered an order in said cause appointing Roy Schooley as receiver, approving his bond, and requiring such receiver to take possession of the said Wilkinson farm; that on July 14, 1920, by order of court, relator was permitted to intervene in said case for the sole purpose of moving to quash the order of July 6, 1920, appointing said receiver and approving his bond, and ordering him to take charge of said real estate, and that said motion to quash was overruled on September 20, 1920. Respondent denied all other allegations in relator's petition. The facts alleged in respondent's return, the circuit court, in the exercise of its equity which are admitted by the motion for judg-jurisdiction, has no power to appoint a rement to be true, are that the case of Horst v.ceiver to take charge of the real estate of Mittelberg, executor, came on for hearing the deceased and to collect the rents and profbefore respondent on April 2 and 3, 1920, and its thereof, in the face of a prior order of was taken under advisement by him until the probate court authorizing and directing April 8, 1920, at the request of counsel rep-relator as administrator pendente lite of that resenting relator in this proceeding, who were at that time representing certain devisees under the will of said Wilkinson, deceased; that before April 8, 1920, the date set by respondent for his decision in said case, Mary W. Elirich, by her counsel, instituted suit to contest the will of said Francis P. Wilkinson, deceased, necessitating the appointment of an administrator pendente lite in the probate court, and that the relator was appointed by said probate court as such administrator pendente lite; that thereafter, and on April 8, 1920, respondent read into the record in his court his findings of fact and conclusions of law in the case of Horst v. Mittelberg, to the effect that respondent found that said Wilkinson and his wife, both deceased, duly executed a contract for the sale of the Wilkinson farm to said Horst, and that Horst paid them $100 as earnest money, and subsequently duly made tender to them of performance on his part of the terms of said contract, and acceptance of such tender was by them refused; that the price was reasonable and fair, and that Wilkinson and his said wife had sufficient mental capacity to make such contract; that respondent did not enter formal judgment in said cause on account of the filing of said will [2] The sections of the statute referred to contest and the appointment of relator as provided an effective means to relator for administrator pendente lite by the probate testing the propriety of respondent's action court, and that respondent took the view that in refusing to revoke the appointment of his he could not render judgment in said case receiver. The general rule is that the writ until final determination of the will contest; of prohibition will not be used to usurp the that thereafter George Horst filed his appli- office of an appeal. In re Bowman, 67 Mo. cation for the appointment of a receiver to 146; State ex rel. v. Lewis, 76 Mo. 370; State take charge of said farm, and that there- ex rel. v. Klein, 116 Mo. 259, 22 S. W. 693; after respondent heard said application and Wand v. Ryan, 166 Mo. 646, 65 S. W. 1025. found that the allegations contained therein "Where an appeal lies from and is an adewere true, and that a receiver should be ap-quate remedy to prevent execution of an order court to do and perform the same acts. Re- * its docket." Section 1473, R. S. 1919, provides for a stay of execution on appellant giving the required bond. The giving of such appeal bond stays the execution of such order and property seized by such receiver must be returned to the owner. State ex rel. v. Hirzel, 137 Mo. 435, 37 S. W. 921, 38 S. W. 961; State ex rel. v. Klein, 137 Mo. 673, 39 S. W. 272. |