save his marital rights as her husband. But giving to these inoperative deeds the full effect to which they are entitled,--that they show or tend to show to whom the parcels were allotted,-the fact that defendant was inserted as a grantee did not vest any title in him. This was determined in Whitsett v. Wamack, 159 Mo. 14, 59 S. W. 961, 81 Am. St. Rep. 339, in which division No. 1 unanimously ruled, after an examination of all the authorities in other states and the textwriters on this subject, that a deed of release or quitclaim by two coparceners to a third and her husband, in an effort at voluntary partition of their jointly inherited estate, conveyed no title to the husband. The same doctrine was again announced in Palmer v. Alexander, 162 Mo. 127, 62 S. W. 691. But we are asked to reconsider those decisions, and to hold that the deed in such a case passes a title to the husband as a tenant by the entirety. A careful consideration of the reasoning employed in Whitsett v. Wamack, supra, leads us to the same conclusion which was reached in that case. When coparceners mutually agree to, and do voluntarily, divide an estate held by them in common, and assign to each his or her share therein, it is obvious that they convey nothing of their own to such coparcener, but merely designate the boundaries in severalty to that which was already his or her own by virtue of the joint deed, or by descent from the common ancestor. Until the partition the several coparceners own their undivided pro rata share in the whole, but when they partition the lines of each share are then designated; but neither of the other coparceners conveys any portion of his share to another, but receives his own and all of his share by designated metes and bounds. This is made so clear by the extracts from the decisions quoted in Whitsett v. Wamack, by the supreme court of North Carolina in Harrison v. Ray, 108 N. C. 215, 12 S. E. 993, 11 L. R. A. 722, 23 Am. St. Rep. 57, and the numerous other cases cited, that we deem it unnecessary to repeat what has been already so well said. Those cases have been supplemented by two decisions of the court of appeals of Virginia, to wit, Yancey v. Radford, 86 Va. 638, 10 S. E. 972, and Dooley v. Baynes, 86 Va. 644, 10 S. E. 974. In the Yancey Case the court says: "It has often been said that partition between coparceners neither amounts to nor requires an actual conveyance. It is less than a grant. Its operation is not to pass the land by a fresh investiture of the seisin, for coparceners are supposed to be already in possession of the whole lands. Partition therefore makes no degree. It only adjusts the different rights of the parties to the possession." Alln. Part. 124-128; 1 Lomax, Dig. (2d Ed.) 634; 2 Minor, Inst. (2d Ed.) 439. See, also, the recent decision of the supreme court of Tennessee in Cottrell v. Griffitts, 57 L. R. A. 332, note (s. c. 65 S. W. 397).

Mrs. Elliott did not purchase the land in suit. It was hers by descent from her father. It is true, its metes and bounds were not definitely fixed, and her share segregated, until the amicable partition, but when that was done it only confirmed to her in severalty that which until then she owned and held in common with her brothers and sisters. Her title to it could only be extinguished by her deed executed and acknowledged according to law, and this was not done by her during her life.

But it was asked on the argument if it was not entirely competent to sell the undivided share of a tenant in common under execution. Unquestionably it is, and the owner of an undivided share can convey it by voluntary deed, but it must be obvious that a partition is wholly unlike the sale by the owner of the undivided share. For example, no lawyer will for a moment question that Mrs. Elliott, in her lifetime, and prior to the partition, could have conveyed her undivided one-sixth of these lands to one of her co-tenants in common, in the manner prescribed by our laws, and such co-tenant would have become the owner of two-sixths; but when each coparcener released and quitclaimed or set off, as in this case, without a valid deed, to the others, their shares, and they in turn released to her her share, they each had no more after the transaction than they previously had, and neither had any less. So that neither passed any title to the other, but they all simply confirmed to each other, by distinct boundaries, that which they already had before, but in one common tract. So that it must be ruled that defendant by this partition did not become a tenant by the entirety with his wife, Mrs. Armelda Elliott, and when she died without children or other descendants the title to the land in suit vested by operation of law in her brother and sisters, and in the descendants of those who had died; and plaintiffs are admitted to be a portion of these heirs at law.

Neither are they barred by any statute of limitations. The statute did not begin to run in defendant's favor until the death of his wife, since these plaintiffs did not have any title to her lands until she died without descendants, and her death occurred January 1, 1888, and this suit was brought, as the record shows, in November, 1897, and before 10 years had elapsed after her death.

Equally unfounded is the plea of estoppel. Certainly there was none by the deed, which was merely a quitclaim, even if it had been properly acknowledged before an officer authorized to take and certify the acknowledgment. Moreover, during the lifetime of Mrs. Elliott these plaintiffs had no title or interest in the land in suit. It was hers, and she could improve it in any way she saw fit; and if defendant, as her husband, saw fit to expend his means in improving it, no action thereby accrued to him against her. In no

way could he be said to have done these things because of the conduct of these plaintiffs, who had no right to challenge anything he or his wife did on said premises.

Only one point remains to be noticed. In the defendant's answer he alleged that Martin D. Snyder is the common source of title. In their reply, plaintiffs admit that Joel D. Campbell was formerly the owner of the lands in controversy, and that he conveyed the same to Martin D. Snyder for value received, and that said Martin D. Snyder on or about the 7th day of January, 1858, by his will, conveyed the same to Sarah W. Snyder, and thereby she became the owner in fee simple of said real estate, and that said Martin D. Snyder and Sarah W. Snyder are therefore the common source of title; that plaintiffs claim through said Sarah W. Snyder, and admit the heirs as named in the answer. It is now contended by defendant that, as Sarah W. Snyder only took an estate for life under said will, plaintiffs took no title from her, and therefore cannot recover as the heirs of their sister and aunt, Mrs. Elliott. The petition alleges that plaintiffs were entitled to the possession of the lands sued for on the 1st day of January, 1888.

The proofs, without objection, showed that Mrs. Elliott died January 1, 1888, and left no children or other descendants, and that plaintiffs were her brother and sisters, and the children and heirs at law of her deceased sisters. Defendant, in his answer, admitted his possession, and set up an equitable defense by virtue of alleged deeds from these plaintiffs, and prayed for affirmative relief. The admissions in the reply were obviously made to obviate proof of title back of Martin D. Snyder. The plaintiffs were shown to be the heirs of both Martin and Sarah Snyder and Armelda Elliott. The uncontradicted evidence and the answer, on its face, disclosed that plaintiffs were entitled to the land as the heirs of Mrs. Elliott, but proceeded to set forth his claim in equity, based upon the alleged voluntary partition, and prayer to have the title decreed in himself. Having by his own pleading shown the legal title in plaintiff, it became wholly unnecessary for plaintiffs to prove their title. The only issue to be tried was that presented by the equitable defense, and the reply denying that, and this being determined against defendant, the immaterial and unnecessary allegation as to the devolution of the title prior to its vesting in Mrs. Elliott did not and does not change the real issue submitted and tried. Schuster v. Schuster, 93 Mo. 438, 6 S. W. 259. The whole record and the evidence preserved establish beyond a doubt that plaintiffs claimed on the trial, and still assert, their right of possession as the heirs at law of Mrs. Elliott, and not otherwise, and the equitable defense was urged to defeat their claim as such; and the allegation of claim through their mother will be disregarded, as

in no manner affecting the rights of either party.

The judgment is affirmed.

BURGESS and FOX, JJ., concur.

STATE ex rel. ST. LOUIS, K. C. & C. R. CO. v. COOK, Secretary of State. (Supreme Court of Missouri. Jan. 6, 1903.)

FOREIGN CORPORATIONS STATUTORY FEESPOWERS-MANDAMUS - DEMURRER TO PETITION-HEARING ON CONSENT OF PARTIES.

1. Though the regular course of procedure in mandamus proceedings consists, on the filing of the petition, in the issuance of an alternative writ, and a hearing of the questions arising on its face by a motion to quash, yet when the parties agree to waive the issuance of the alternative writ, and consent to present the issue by a demurrer to the petition, the court will hear the matter in such form.

2. Rev. St. 1899, § 1025 (Laws 1891, p. 75), provides that foreign corporations shall not be permitted to do or continue business in the state without paying, on the proportion of the capital stock represented by their property or business in the state, incorporation taxes or fees equal to those required from similar domestic corporations, except that this shall not apply to railroad companies "which have heretofore built their lines of railway into or through the state." Held, that a foreign railroad corporation, which had prior to 1891 merely constructed a part of its proposed road within the state, was liable for the fee imposed by the statute.

3. Const. art. 10, § 21, provides that domestic business corporations shall pay $50 for the first $50,000 or less of capital stock, and a further sum of $5 for every additional $10,000 of stock. Rev. St. 1879, § 764, provides that the capital stock of domestic railroad corporations shall not be less than $10,000 for every mile of standard gauge proposed to be constructed. Section 790 authorizes foreign corporations to construct and operate railroads within the state. Rev. St. 1899, § 1025 (Laws 1891, p. 75), provides that foreign corporations shall not be permitted to do or continue business in the state without paying on the proportion of the capital stock represented by their property or business in the state incorporation taxes or fees equal to those required from similar domestic corporations. Held, that a foreign railroad corporation, which had prior to 1891 merely constructed a part of its proposed road within the state, was liable to the payment of the incorporation fee on that part of its capital stock employed in the state calculated on a basis of $10,000 for each mile of road proposed by its charter to be constructed in the state, less the sum expended in the construction of that part of its road which was constructed before the enactment of Rev. St. 1899, § 1025.

4. A foreign corporation admitted to do business in the state either by comity or by express statutory provisions can transact only the business which a domestic corporation of like character is authorized to transact.

In banc. Mandamus by the state, on the relation of the St. Louis, Kansas City & Colorado Railroad Company, against Sam B. Cook, secretary of state, to compel respondent to issue to relator a license authorizing it, as a foreign corporation, to do business in the state. Denied.

Jno. H. Overall, for relator. The Attorney General and Sam B. Jeffries, for respondent.

4. See Corporations, vol. 12, Cent. Dig. § 2530.

VALLIANT, J. The relator is a railroad company incorporated under the laws of Kansas. It has applied to the defendant, the secretary of state, for a certificate to authorize it to do business as a foreign corporation in this state, as provided by section 1025, Rev. St. 1899; but the application has been denied on the ground, among others, that the relator has not paid incorporating taxes and fees equal to those required of similar corporations organized under the laws of this state, as the statute requires, and this suit is brought to obtain a writ of mandamus to require the secretary of state to issue the license. The petition shows the following facts: That the relator was incorporated in Kansas in 1884, to construct and operate a standard-gauge railroad from a point in the western line of Seward county, Kan., through certain counties named in Kansas and Missouri to the Union Depot at Kansas City; thence through certain other counties in Missouri to the city of St. Louis. In 1887 the charter was amended, increasing the number of directors and changing the line of the proposed road, beginning in the city of St. Louis, and running through certain counties specified to Kansas City, with several other routes branching off from that and other branches,-one of which was aimed to reach Ft. Scott, Kan.; another, Ottawa, Kan.; and another, Girard, Kan. Prior to April 21, 1891 (the date of the act prescribing the terms on which a foreign corporation is entitled to a license to do business in this state), relator "had built its line of railway into this state, having theretofore built its line of railway in this state from the city of St. Louis to the town of Union, in Franklin county"; and the proportion of its capital stock represented by its property located and its business transacted in this state was $1,600,000, and on the 11th of February, 1902, the date of the application to the secretary of state for a license, that proportion had increased by expenditures extending the road to $1,939,000. That, having thus built its road into this state, relator is entitled to the certificate and license upon paying the fee of $1.50 prescribed by law for issuing the same, without paying any sum as for the quasi incorporating tax under the proviso to section 1025, which is "that the requirements of this article to pay incorporation tax or fee shall not apply to railroad companies which have heretofore built their lines of railway into or through this state." That relator had duly tendered to the secretary of state copies of its charter, and the amendment thereto, together with the affidavits of its president showing its place of business in this state, the proportion of its capital stock, as above specified, employed here, and that it was not in any pool or trust, etc. And at the same time relator tendered to the secretary of state the legal fee of $1.50 for issuing the certificate, and tendered for payment into the state treasury $825 as for the incorporat

ing tax on $1,600,000, if it should be held that relator was liable for such tax on the amount of its capital stock invested in the road from St. Louis to Union, and the sum of $995 if it should be held that it was liable for such tax on the amount of its investment in this state up to the date of the application. That the secretary of state refused these tenders, and refused to issue the license. The prayer is for a writ of mandamus to require him to do so. The de fendant, being informed of the filing of the suit, waived the issuance of an alternative writ, and demurred to the petition. The questions, therefore, for decision, are those arising out of the petition and demurrer.

1. The regular course of procedure would have been to let the alternative writ issue, and raise the questions arising on its face by a motion to quash; but as both sides have preferred to present the issues in this form, we will so consider them.

2. The main ground on which the demurrer is rested is that on the facts stated in the petition the relator is not entitled to the certificate or license demanded, because it has not paid into the state treasury the amount of the tax or fee that a railroad company asking to be incorporated under the laws of this state with the same or similar rights would be required to pay. Under section 21, art. 10, of our constitution, no corporation, unless formed solely for benevolent, religious, scientific, or educational purposes, can be created under the laws of this state until the persons seeking to be incorporated shall "pay into the state treasury fifty dollars for the first fifty thousand dollars or less of capital stock, and a further sum of five dollars for every additional ten thousand dollars of its capital stock. And no such corporation, company or association shall increase its capital stock without first paying into the treasury five dollars for every ten thousand dollars of increase." Section 764, Rev. St. 1879 (we quote from the revision of 1879 because that was the law when relator's rights accrued), prescribing the conditions upon which railroad companies may be incorporated, declares that the articles of association shall state, among other things, "the amount of the capital stock of the company, which shall not be less than ten thousand dollars for every mile of standard or broad gauge, nor less than five thousand dollars for every mile of narrow gauge road constructed or proposed to be constructed," etc. Section 782, Id., confers on such corporations the right of way through the unimproved lands of the state, and prescribes the mode of obtaining the right of way through the state's improved lands and lands belonging to cities and towns. Section 892, Id., and following, make provisions for the condemnation of private property for the use of the railroad company. In addition to the comity under which foreign corporations are admitted to this state, section 790 of the same revision enacts:

"Any railroad company duly incorporated and existing under the laws of any state of the United States, may extend, construct, maintain and operate its railroad into and through this state and for that purpose shall possess and exercise all the rights, powers and privileges conferred by the general laws of this state upon railroad corporations organized thereunder, and shall be subject to all the duties, liabilities and provisions of the laws of this state concerning railroad corporations as fully as if incorporated in this state." Under the generous invitation there extended, if a railroad company chartered under the laws of Kansas owning a railroad in that state directed towards our border desired to extend its road into or through the state, it was welcome to do so, the right of way through lands of the state was given, the power to condemn private property for railroad purposes was conferred, and all other rights and privileges afforded a domestic railroad corporation were given, for all which no incorporation tax or fee was required. Acting upon that invitation, a railroad company could have been incorporated under the laws of Kansas to build and operate a road from Ft. Scott to St. Louis, with such meanders or branch routes through this state as the company might desire, covering, as the relator does, a line or lines of more than 800 miles, for which a domestic corporation would have to pay an incorporation fee estimated at $5 for every $10,000 on a capital of $8,000,000. This would seem to be an unjust discrimination against a domestic corporation, but, as long as our legislature was satisfied with the law and its effect, no one else could be heard to object. Under that law, and before the amendments thereto presently noted, several railroad companies incorporated under the laws of other states had extended their roads across our borders and into and through this state. Such was the law when the relator came into this state with its Kansas charter, and constructed that part of its road which is now in operation from St. Louis to Union, and so the law continued to be until 1891, and so it is to-day, except as changed by the legislature in 1891 and 1895 by enactments which now constitute sections 1024, 1025, Rev. St. 1899. The object of those enactments was to prescribe certain conditions to be observed by foreign corporations before they would be permitted to come into the state to transact business, or continue their business if they were al ready here. Among those conditions are that the corporation shall file with the secretary of state a sworn statement showing "the proportion of the capital stock of said corporation which is represented by its property located and business transacted in the state of Missouri, and such corporation shall be required to pay into the treasury of this state upon the proportion of its capital stock represented by its property and business in Missouri incorporating taxes and fees equal to

those required of similar corporations formed within and under the laws of this state." But that section contains this proviso: "That the requirements of this article to pay incorporation tax or fee shall not apply to railroad companies which have heretofore built their lines of railway into or through this state." The relator takes the position that, having built its road from St. Louis to Union prior to 1891, it is exempt from the incorporation fee required by that section, and is entitled to the certificate or license mentioned therein upon payment of the fee of $1.50 for the issuing of the same. To that the secretary of state does not agree.

In order to understand the meaning of the clause in the act of 1891 exempting foreign railroad companies who, under the previous law, had built their roads into or through the state, we may call to our aid the situation of such roads at that date in this state. It is a fact of common knowledge, of which the court may take cognizance, that in 1891 there were several foreign railroad companies which had theretofore approached our borders with their roads, and, under the express leave of the statute above quoted, had extended their lines into this state, some crossing it from one side to the other, some penetrating it to St. Louis, some to Kansas City, and some to other points. Those roads, in 1891, were not in prospect merely, nor was the building of them just begun, but they were accomplished facts, and the respective railroad companies were transacting their business over them. Then, when the legislature came to pass the act requiring foreign corporations to pay into the state treasury "incorporating taxes and fees equal to those required of similar corporations formed within and under the laws of this state," calculated on a basis of the proportion of their capital stock represented by the business transacted here, it was confronted with the situation above described. Those companies had extended their lines into or through this state on express invitation, and in consideration of that fact the legislature deemed it but right to exempt them from the tax imposed in that act on other corporations. Besides that, there were other facts which, viewed from a revenue standpoint, justified the legislature in making a class of such railroad companies, and exempting them from that particular tax. Those roads, as we have seen, were accomplished facts. But suppose the act of 1891 found a railroad in course of construction, suppose the charter called for a road from Ft. Scott to St. Louis; with meanders or branches covering, as relator's charter does, more than 800 miles in this state, representing, according to our law, $8,000,000 capital stock, upon which a domestic corporation would have to pay an incorporating tax of $4,000; and suppose the construction starting at Ft. Scott had advanced to and across our state line to a point five

miles within this state. Did the legislature intend that the company should be allowed thereafter to construct its 800 miles of road, and be exempt from paying the incorporating fee on the theory that it had already built its road into this state? Those companies which had already built their roads into this state were absolutely exempt from that tax. But can it be said of a company that it had already built its road when its charter designated particular routes measuring 800 miles of which it had constructed only 5, 10, or 50 miles? Is that what the statute means? If so, then the part already built must, for all the purposes of that statute, be taken as the whole road. The company cannot, for the purpose of relieving itself of the tax imposed by the statute, say this 50 miles constitutes its road, and then, for the purpose of obtaining the license authorized by the statute, say it constitutes only a small part of its road. If one of the foreign railroad companies owning railroads built prior to 1891 reaching from St. Louis to Kansas City should now seek to build a new line over a route not before occupied by it, it could do so only on the same terms that a domestic corporation could. And so a company found with an unfinished road, where the act of 1891 went into effect, if it was entitled to any exemption from the incorporating tax therein required, it was so only to the extent to which it had then built its road into the state, and as to its future building it must stand on a plane with domestic corporations, and with other foreign corporations who might now seek to build over new routes. The act of 1891 (section 1025, Rev. St. 1899) does not require the foreign corporation to pay the tax on all, but only on "the proportion of its capital stock represented by its property and business in Missouri." Relator construes this to mean that, if it is liable to pay any such tax at all, it is so only on that part of its capital stock represented by its property and business in Missouri, which, it says, is the cost of the construction and equipment of the road from St. Louis to Union; that is, $1,600,000. The statute requires the foreign corporation to file with the secretary of state a sworn statement showing the proportion of its capital stock represented by its property and business in this state, and the relator has filed a statement showing that amount to be $1,600,000, represented in the road built from St. Louis to Union. The statement is doubtless correct as an estimate on that basis, but that is not the proper basis on which to estimate the proposition of a railroad company's capital stock invested in this state. Section 1036, Rev. St. 1899, fixes the minimum of $10,000 a mile as the capital stock for standard-gauge roads, and, whilst the capital stock may go over, it cannot fall under, that sum. The relator's charter shows that its capital stock is $20.000,000, and the total length of its road 900 miles, of which

850 are in this state. Our statute will estimate at least $8,500,000 of that capital as appertaining to the relator's business in Missouri. In fact, if $1,600,000 is the proportion of relator's capital represented by its business in Missouri, then that sum has all been expended in the construction and equipment of the road from St. Louis to Union, the relator in such case is without any other capital stock available for use in this state, and its whole corporate capacity is absorbed in that 50 or 60 miles of road. The relator must elect to be confined to those limits, or else it must own to a capital stock of at least $10,000 for each mile of standard-gauge road it aspires to in this state. Railroad corporations are a class in themselves, having peculiar rights and corresponding liabilities, and they are often treated as a class by the lawmaking power. The act of 1891 covers (with the exceptions mentioned) foreign railroad corporations as well as foreign manufacturing corporations; but when the railroad company comes into the state, having complied with the requirements of that act, it becomes immediately clothed with powers and valuable rights, not possessed by corporations of any other kind. It may invade private property to survey and mark out its lines, make and file maps of its route, and thus mark as for its own lands to be taken by condemnation, the power for which is conferred. In this way, when it has surveyed its lines, located its route, and filed its maps and profiles, it acquires a right, over any other railroad company to condemn that land and build its road along that route. Thus a substantial right accrues to the corporation extending over all its surveyed and located lines in the state. The law does not undertake to put a separate value on that indefinite, inchoate right. It assumes that the railroad company which acquires it will, by use of it, build its road; and will not listen to the company, while holding that right, question its own ability or purpose to do so. It will conclusively presume against a railroad company demanding the right to build a standard-gauge road that its capital is not less than $10,000 a mile. This we will take to be the proportion of the capital stock of the relator represented by the business it purposes to transact within this state. Since, as we have concluded, the building of that part of relator's road which extends from St. Louis to Union is not sufficient to exempt the relator entirely from the tax or fee required by the act of 1891, and since the cost of that part of the road is not to be taken as the proportion of relator's capital stock employed in this state, it is not absolutely certain that relator is entitled to have any benefit in this suit of that $1,600,000. But, as before observed, the property and business of a railroad company differ from those of all other corporations, and we must consider that peculiarity in this instance. If a corporation of any other