[1] The real issues in the divorce case were not tied up with the question of alimony, either temporary or permanent. Alimony is largely incidental to the case, and, because the trial court incidentally investigated the property holdings of each party in order to be enlightened upon the question as to what allowance should be made in the way of alimony, it should not be said that the court's conclusion as to who owns or claims a certain tract of land should be con sidered as res adjudicata in a proceeding where that question is one of vital importance and one going to the very merit of the controversy. So that we say that, although it be conceded (a question we do not at this point decide) that under proper issues a decided question of fact may be res adjudicata as to the fact found, yet such rule would have no application in the case at bar. A fact found to be conclusive upon the parties must be a fact "directly in issue" in the case decided, and one within the purview of the issues made in such case. 24 Am. & Eng. Ency. of Law (2d Ed.) p. 765. It is clear from the issues stated in the divorce proceedings that the parties were not seriously and forever attempting to settle the fact as to who had paid for the 100 acres of land incidentally mentioned. As we are impressed, there is nothing in the question of res adjudicata, and that point is therefore ruled against the plaintiff. 2. Reverting now to the fact as to whose money went into this land. Upon this question the evidence is in hopeless conflict as to a part of the money. As to the major part there is but little dispute that it was Mrs. Blair's money. Mr. Blair admits this, but says that his wife agreed to let him have this money because he had paid for the home place which was deeded to her. This Mrs. Blair denies. Mrs. Blair received in all some $8,000 from several estates of deceased relatives. Most of it came to her hands prior to the purchase of this land. The trial court was amply justified in finding that all the money came from Mrs. Blair, and we are impressed that the weight of the evidence so shows. dered may have execution in conformity therewith, and section 2279, authorizing the execution on judgments in partition for the costs against each party, and sections 2609 and 2578, authorizing allowances in favor of attorneys and commissioners in partition and declaring that the same shall be taxed and collected as other costs, costs and allowances in partition may be collected by execution. [Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 440-449; Dec. Dig. 114.*] 2. EXECUTION (§ 84*)-CONFORMITY TO JUDG MENT. the judgment on which it is based. An execution to be valid must conform to [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 177, 180, 204; Dec. Dig. § 84.*] 3. PARTITION (§ 114*) — JUDGMENT — EXECU TION. -- Where a judgment in partition taxed costs and allowances against each allottee, and thereafter a party paid the sums adjudged against her, and another party paid his part of the attorney's fees as adjudged against him and another party paid nothing, an execution against the latter two for the amount due from them, respectively, conformed to the judgment, though it made no reference to the party who had paid the entire sum adjudged against her. Cent. Dig. §§ 440-449; Dec. Dig. § 114.*] [Ed. Note.-For other cases, see Partition, Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge. Action by Thomas Ward McManus against Camilla S. W. Burrows and others. From an order overruling a motion to recall and quash an execution, plaintiff appeals. firmed. Af T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, all of St. Louis, for appellant. Sim T. Price and R. M. Nichols, both of St. Louis, for respondents. BLAIR, C. This is an appeal from an order of the circuit court of the city of St. Louis overruling a motion to recall and quash an execution issued on a judgment partitioning certain property in kind and awarding costs and attorneys' fees. On the coming in of the report of the commissioners the plaintiff, the present appellant, moved for confirmation of the report, and the court took up at the same time with plaintiff's motion the petition or motion for the allowance of attorneys' and commissioners' fees and [2] At least the trial court had the benefit thereupon rendered judgment confirming the of seeing and hearing both the parties upon report of the commissioners, making certain this vital point, and we will yield to his allowances to the commissioners and to the judgment upon the question of credibility.attorneys in the case and allowing certain If Mrs. Blair paid the money, her title should not be disturbed, and other questions suggested in the brief can well be omitted. Let the judgment be affirmed. All concur. other items of expense and costs. The whole amount of all these allowances was by the judgment taxed as costs and adjudged against the several parties in proportion to their interests in the lands partitioned, i. e., one-half against appellant, one-third against Park, trustee, and one-sixth against Camilla S. W. Burrows. At the next term of court (Supreme Court of Missouri, Division No. 2. the attorneys and commissioners moved for MCMANUS v. BURROWS et al. Dec. 10, 1912.) execution on this judgment, the motion reciting the several allowances made by the court, and further stating that Camilla S. W. Burrows had paid all sums adjudged against her, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes that appellant had paid one-half of the allowance for attorneys' fees and Park had paid nothing, and prayed execution against appellant and Park for the sums adjudged against them and yet unpaid. The court, over appellant's exception, sustained the motion and ordered that execution issue. The execution issued pursuant to this order clearly identified the judgment upon which it rested, recited the several allowances made, stated the interests of the several partitioners in the property partitioned and the proportions of all the allowances and costs adjudged against the respective partitioners, set forth the payment by Camilla S. W. Burrows of the whole amount adjudged against her and the payment by appellant of that part of the allowance for attorneys' fees adjudged against him, and commanded that there be made from the property of appellant one-half of each allowance except that for attorneys' fees, and that there be made from the property in Park's hands as trustee one-third of each allowance made in the judgment. In view of the questions presented by appellant's counsel in this court, this is a sufficient statement of the substance of the execution issued. Appellant's motion to recall and quash the execution was overruled, and he appealed. Other facts pertinent to the questions presented will be stated in the course of the opinion. A reversal is sought on the grounds that: (1) The judgment does not authorize the issuance of execution; (2) the attorneys and commissioners had no right to have execution issued; and (3) the execution does not conform to the judgment. [1] I. The judgment in partition was not appealed from and became final with the lapse of the term. Appellant took and is in possession of the parcels of realty set off to him in the commissioners' report as confirmed by the court. The statute (section 2279, R. S. 1909) authorized judgment for his proportionate share of the costs against each party to the partition proceedings and the issuance of execution on such judgment, the levy of such execution on the property of the respective partitioners, and the sale, under that execution, of enough of the property of each to pay the amount adjudged against him, and no more. 1. Under the general statute (section 2172, R. S. 1909), "the party in whose favor any judgment, order or decree is rendered, may have execution in conformity therewith," and section 2279, supra, specifically warrants the issuance of execution on judgments of this kind in suits in partition. Even at common law it was not necessary that the judgment formally award execution. 1 Freeman on Executions, § 16. 2. It is insisted, however, that the sections of the statute (sections 2609 and 2578, R. S. 1909) which authorize allowances in favor of attorneys and commissioners in suits in partition provide that these shall be taxed and collected as costs, and, it is argued, that collection thereof must be made by fee bill, not by execution. The argument is principally based on the idea that the judgment is merely for costs, in the ordinary sense, and that those in whose favor allowances are made are not "parties" entitled to execu tion. There was a time when the statute (Gen. Stat. 1865, p. 689, § 22) provided that in suits in partition the petitioner or petitioners should, in the first instance, pay all costs, be then entitled to judgment against the other parties in proportion to their respective interests, and, in case there was partition in kind, a fee bill should issue for the collection of the costs so adjudged, for the reimbursement of such petitioners. In 1879 (section 1006, R. S. 1879; section 2279, R. S. 1909) this section was amended, and the provision as to payment of all costs by petitioners was eliminated, as was that respecting collection by fee bill, and the present statute enacted authorizing judgment against each allottee for his due proportion of all costs, the issuance of execution therefor, and the levy and sale thereunder if necessary. In view of this significant amendment we think there can be no doubt the Legislature intended to substitute execution for fee bill in collecting costs and allowances in suits in partition, and that the statute authorized the issuance of the execution in this case. The fact the sections of the statute referred to (sections 2578, 2609, R. S. 1909) direct the taxation and collection of attorneys' and commissioners' allowances "as other costs" and "as other costs in the case" must be considered in the light of the amendment mentioned, and interpreted to mean, as it clearly does mean, "as other costs in the case" in partition before the court, and such costs are to be collected under the special provisions (section 2279, supra) relating to costs in suits in partition. The phrases “as other costs" and "as other costs in the case" refer to the special statute (section 2279), and not to the general statute relative to the collection of costs in cases of other kinds. The cases cited (Hoovver v. Railway, 115 Mo. 77, 21 S. W. 1076; Davis v. McCann, 143 Mo. 172, 44 S. W. 795; State ex rel. v. Renick, 157 Mo. 292, 57 S. W. 713; Beedle v. Mead, 81 Mo. 306) arose under the general provision relating to the taxation and collection of costs and are not in point. The judgment is against the partitioners and in favor of those to whom allowances are made, and the statute leaves no room for doubt that execution may issue. Those in whose favor these allowances or costs are adjudged in cases of this kind are, under the special statute, entitled to control the judgment therefor in their favor and, for that matter, would seem to be as much "parties" to the judgment in their favor as any other who secures money judgment. Their relation to the judg a [2, 3] II. It is finally insisted the execution does not conform to the judgment and by that fact is invalidated. It is not to be denied that conformity to the judgment on which it is based is essential to the validity of an execution. ment is very different from that of the court | and is ruled against appellant. The case of official entitled to fees accruing in connec- Zelle v. Bobb, 14 Mo. App. 267, is cited as tion with an ordinary action and whose supporting a contrary conclusion, but in that rights with respect to collecting his fees or case no payment had been made by any one, costs are defined by a wholly different stat- and the trial court had attempted to issue ute. separate executions against each defendant. In the case before us Camilla S. W. Burrows has eliminated herself by payment of all due from her. No sale of her property could be made under the judgment; no judgment against her remains unsatisfied. The case cited had to do with entirely different facts. The judgment conformed exactly to the Other cases cited (Maloney v. B. & L. Ass'n, provisions of section 2279, supra, in that the 57 Mo. App. 384; Coe v. Ritter, 86 Mo. 277; allowances and costs were taxed against Bain & Wyatt v. Chrisman & Porter, 27 Mo. each of the allottees in exact proportion to 293), so far as applicable, merely announce his ascertained interest in the property par- the general rule that an execution must contitioned, and judgment was rendered accord- form to the judgment upon which it is reningly "against each party for his or her dered. The execution varies from the statshare of such costs." Subsequently Camil- utory form (section 2173, R. S. 1909), but la S. W. Burrows paid all sums adjudged such variance is practically accounted for against her, appellant paid his proportion and authorized by the special statute (secof the attorneys' fees as adjudged against him, and Park paid nothing. The execution included only unpaid amounts, ran against appellant and Park for the proportionate amounts of the unpaid items adjudged against them, and ran in favor of those to whom these amounts were due. The statute (section 2279, supra) clearly contemplates a single judgment, against each allottee for his proportionate part of the allowances and tion 2279, supra) under which it was issued. In view of what has been said, we find no ground for reversal in the specific objections (above discussed) made to the execution, and none other appears or is called to our attention, and the judgment is affirmed. ROY, C., concurs. PER CURIAM. The foregoing opinion of BLAIR, C., is adopted as the opinion of the court. All the Judges concur. COMMON SENSE MIN. & MILL. CO. v. (Supreme Court of Missouri, Division No. 1. TOPPEL. costs, and also authorizes a single execution on the judgment, such execution to follow the judgment as to the several amounts adjudged against the several parties and specifically prohibits a sale thereunder of any property of any allottee save so far as necessary to realize sufficient funds to pay the portion adjudged against such allottee. There is but one judgment and one execution authorized (Zelle v. Bobb, 14 Mo. App. loc. cit. 1. CORPORATIONS (§ 426*)-CONTRACTS-ES269), but that judgment is severable to the extent that the fact Camilla S. W. Burrows had paid all sums adjudged against her warranted the court's refusal to include her in the execution further than by a recital of the fact her proportion had been adjudged against and paid by her. In fact, no other course was open to the court, since Camilla S. W. Burrows had complied fully with the judgment in so far as it affected her. It was also the duty of the court, in ordering the issuance of the execution, to give proper credit for the sums paid by appellant on the amount adjudged against him. This the court did by reciting in the execution the entire amount adjudged against appellant and the amount paid by him and awarding execution against him for the balance. 8 Ency. of Pl. & Pr. p. 428. The objection that the execution does not conform to the judgment, in that it does not run against Camilla S. W. Burrows, and that it does not run against appellant for the full amount originally adjudged against him, is not sound Where the purchaser notified the president of the corporation vendor that he thought he had certain third parties who would buy the property, and requested an extension of the time allowed him for closing his own purchase of the property, and such extension was granted him by the president by wire, and where the purchaser showed such third parties his original contract and the wire, and upon strength of same they purchased from him, took possession, paid certain of the corporation's debts as consideration, and made valuable improvements without any objection being made, the corporation was estopped, after five months' delay, to sue for recovery of the property and damages upon the ground that the extension granted by its president was unauthorized, especially where it made no offer to place defendants in statu quo. [Ed. Note.-For other cases, see Corporations, Cent. Dig. $§ 1596, 1702-1704, 1708, 1710-1716; Dec. Dig. § 426.*] 2. CORPORATIONS (§ 542*)-POWERS OF DIRECTORS-SALE OF PROPERTY. The directors of a mining corporation in failing circumstances could legally dispose of its assets to pay its debts. tions, Cent. Dig. §§ 2154-2160; Dec. Dig. § [Ed. Note.-For other cases, see Corpora542.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 3. CORPORATIONS (§ 432*)-CONTRACTS-VA- dicated by the answer and the reply. The LIDITY-PRESUMPTION. answer of Taylor, omitting from a contract pleaded the schedule of debts and machinery, is: A mining corporation's contract to sell property was presumptively duly authorized where it recited that it was fully authorized by its directors and was valid on its face. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1717, 1718. 1724, 17261737, 1743, 1762; Dec. Dig. § 432.*] 4. CORPORATIONS (§ 428*) CONTRACTS KNOWLEDGE OF OFFICERS. Taylor and for his separate amended an"Now on this day comes defendant H. L. swer to plaintiff's petition herein denies each and every allegation therein contained, exted. cept such as are hereinafter expressly admitdefendant says that on or about the 18th And for further separate answer this day of April, A. D. 1906, plaintiff was in possession, claiming to be the owner of a certain mining lease, granting to plaintiff the right to mine and use certain mining machinery belonging to the New York & St. Lou[Ed. Note.-For other cases, tions, Cent. Dig. 88 1748-1761; Dec. Dig. tract of land situate in the county of Jasper see Corpora- is Mining & Milling Company on a certain 428.*] Where the president of a mining corporation knew that the property sold by the corporation had in turn been sold by the purchaser to third parties who as consideration paid certain of the corporation's debts, and then took possession and made valuable improvements, the corporation in an action for possession of the property and damages was chargeable with the knowledge of its president. 5. CORPORATIONS (§ 426*)-CONTRACTS-RAT IFICATION. Where the president of a mining corporation granted to a purchaser of the corporation's property an extension of time for closing the trade, and the corporation knowingly acquiesced in such act for five months while third persons bought the property from the purchaser, and as consideration paid certain debts of the corporation and then took possession and made valuable improvements, such delay and acquiescence amounted to a ratification of the extension agreement. [Ed. Note.-For other cases, see Corporations, Cent. Dig. $$ 1596, 1702-1704, 1708, 1710-1716; Dec. Dig. § 426.*] lows, to wit: The east one-half of the forty and state of Missouri, and described as folacres known as the 'Royal Lease' more particularly described as follows: The east onehalf of the southwest quarter of the northeast quarter of section thirty-three, township twenty-eight, range thirty-two. being for a term ending January 1st, 1912, Said lease with an extension provided for a further term ending January 1st, 1916. And that ed to be the owner of certain other masaid plaintiff was in possession of and claimchinery, tools and supplies located on said lease and other accounts, credits and assets Appeal from Circuit Court, Jasper County; located in Jasper county, Missouri; that Hugh Dabbs, Judge. Action by the Common Sense Mining & Milling Company against H. L. Taylor and others. From a judgment for defendants, plaintiff appeals. Affirmed. Both pleadings and proof in this cause are voluminous in the extreme. Plaintiff, a Missouri corporation, by its petition sues for the possession of a certain mining property in Jasper county, Mo., which it formerly held and possessed under a mining lease from another company. Monthly rents and profits are alleged to be $2,400. Waste is also charged in the aggregate sum of $25,000. The petition concludes with the prayer: "Wherefore plaintiff prays judgment for the recovery of said premises and $40,000, damages for unlawfully withholding the same from plaintiff, and the waste and injury aforesaid, and the rents and profits down to the time of assessing the same, and $2,400 per month for monthly rents and profits from the rendition of judgment until possession is delivered to plaintiff, and costs," etc. In fact, there was nothing small about plaintiff's case but the result nisi, which was to the effect that plaintiff had no interest in the property and was entitled to no damages therefor. Not only so, but an affirmative decree that defendants Moore and Bushnell in good conscience were the owners of the property and were so decreed it. by accounts unpaid and debts contracted in plaintiff then and there being embarrassed running and operating said mining lease and machinery amounting to approximately $3,800.00, and having no money or means with which to pay the same, and being desirous then and there of having said indebtedness liquidated, as a and providing therefor, plaintiff agreed to means thereto sell, assign and transfer all of its property and assets in Jasper county, Missouri, to this defendant for and in consideration of the sum of one dollar and the assumption by this defendant of the aforesaid mentioned debts and indebtedness, and this defendant agreed to purchase the same on the terms and for the consideration aforesaid, and thereupon an agreement in writing was made and entered into by and between the plaintiff and this defendant herein, being in words and figures as follows, to wit: 'Know all men by these presents that the Common Sense Mining & Milling Company, a corporation of the state of Missouri, party of the first part, and H. L. Taylor, of Joplin, Missouri, party of the second part, witnesseth: said first party, for and in consideration of one dollar and the assumption and payment by the said second party of all debts of said first party amounting to about $3,800.00, a schedule whereof is hereto attached and made a part hereof. The said first party That the The case made and tried nisi is well in- hereby agrees to sell and assign to said sec*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes said F. W. Moore and J. W. Bushnell that they would give him in consideration of his future management of said property a contingent one-third interest therein, and they to retain a two-third interest therein, but that this defendant should not have nor receive any dividends from said property until the said property should pay to the said F. W. Moore and J. W. Bushnell the moneys expended by them in the purchase of said property in paying off said claims as aforesaid, and that the moneys to be expended by them in the improvements and operation of said property, and until the property was put on a paying basis. ond party or to his assigns all the property | the obligations of the said plaintiff as aforeof said first party being situate in the coun- said, it became necessary for this defendant ty of Jasper, Missouri, to wit: Lease on 20 to and he did exhibit to them the aforesaid acres of mineral ground belonging to B. F. contract and acquaint them of the provisions Horton and Luck K. Smith, more particular- thereof, and promise and agree with them to ly described in the lease to one Coburn, of continue in control of and assume the active record in said Jasper county, and re-leased management of the mining property mentionto the New York & St. Louis Mining & Metaled in said contract, under an agreement with Co., and in lease executed by said Horton and Smith to the said first party dated the day of January, 1906, and recorded in Book- -, at page in the office of the recorder of deeds for said Jasper county, at Carthage, Mo., together with all machinery, tools and supplies at the mines, accounts and credits, an inventory whereof is hereto attached and made a part hereof. The said second party accepts said property with the understanding that this is full and complete payment and discharge of all claims or debts against or due by said first party contained in the schedule hereto attached or any other just and legitimate claim not scheduled, but inadvertently omitted therefrom. That the sale and assignment herein provided shall be concluded and fully executed within ten days from the date hereof and that in the meantime till such consummation said second party to have care and custody of said property, to be relinquished at the expiration hereof should this conveyance not be followed by deed as herein contemplated In witness whereof, the said parties have hereunto subscribed their names and affixed their seals. The said first party, its corporate seal affixed by authority of its board of directors and the said second party his scroll seal. This 19th day of April, 1906. Common Sense Mining & Milling Co., G. A. Sanderson, President. H. L. Taylor. [Seal.] Attest: J. A. Farquhar, Secretary.' (Schedule of debts and machinery omitted.) "That afterwards and on, to wit, the 27th day of April, 1906, it was agreed by and between the plaintiff and this defendant that said above-mentioned contract be, and the same was then and thereby extended for, a further period of 10 days. This defendant further states that, relying on the promises and agreements made by said plaintiff in said written contract and the extension thereof, he proceeded at much cost and expense to himself in both time and money to induce capital to invest in said property. That he did, within the time mentioned in said contract and the extension thereto, induce F. W. Moore and J. W. Bushnell of the city of East St. Louis, Ill., to purchase said property in said contract mentioned and to pay therefor a sum of money sufficient to pay off and discharge the obligations of said plaintiff in manner and form as provided in said contract and the extension thereof. That, in order to induce the said F. W. Moore and J. W. Bushnell to purchase said property aforesaid and to pay therefor the amount of money sufficient to discharge "This defendant further states that he complied in full with all the conditions of said contract of purchase to be by him performed and in the time and manner thereby provided, that he paid, assumed, and discharged all of the aforesaid debts in the manner provided in said contract, and that this defendant did in all things perform and fully comply with all the terms and conditions in said contract to him to be performed. That this defendant then and there notified plaintiff that he had secured parties to take over said property and pay the indebtedness of said plaintiff, and that he had fully complied with all the terms and conditions of said contract by him to be performed, and offered and tendered to plaintiff receipted bills for all of said indebtedness, and then and there requested plaintiff to execute and deliver to him good and sufficient conveyance of all its property aforesaid. That this defendant, relying on the promises and agreement of said plaintiff in said contract contained, and by virtue of said contract, and in compliance with the aforesaid agreement with the said F. W. Moore and J. W. Bushnell, did, on or about the 4th day of May, A. D. 1906, begin the operation of said mining lease and machinery and to mine thereon in good faith, and has continued to operate the same in good faith ever since, and has expended large sums of money thereon, to wit, the sum of approximately $16,012.54, in developing and improving said mining lease and mining property, and the further sum of approximately $4,375 in purchasing additional machinery and mining equipment for said property. "This defendant further states that plaintiff has wholly failed to comply with the agreements and conditions of said contract on its part to be kept and performed, and has failed and refused, and still fails and refuses, although many times so requested |