Cummings v. Parker. were before. [Abbot v. American Hard Rubber Co., 33 Barb. 578.] And sometimes, when the plaintiff is prompt, the court will enjoin the sale. [Zabriskie v. Railroad, 18 N. J. Eq. 178.]" The Tanner case has been followed. It was on its authority that a late case, Johnson v. United Railways, 227 Mo. 423, was ruled. Sale to Self. (e) In the case at bar there was no fraud, as already held. Neither are creditors complaining. Neither did the directors convey the club Corporation: house and grounds without authority from the stockholders; nor did they sell it to themselves and thereby subject themselves to an action on behalf of the corporation at the instance of a non-consenting stockholder, for secret profits. The case is one where the selling corporation, having practically the same directors and shareholders as the buying corporation, conveyed to the latter. As pointed out in paragraph a appellant insists this unity of interest and personnel makes it a case of a person with authority to sell, and charged with a fiduciary relation, selling to himself, hence the transaction is void as to a non-consenting stockholder, fraud or no fraud. It must be admitted the case is close, at first blush and on the surface, to that of such person selling to himself. But up to this time in jurisprudence some controlling significance has been allowed to the fiction that one corporation is a separate entity from every other, a separate juristic person from every other. Hence, in a juristic sense, when Fish Cub by authority of its stockholders sold to Shooting Club, it was not a person selling to himself within the rule discussed in paragraph a. Conceding that the situation bespeaks a close and scrutinizing eye by a court to spy out covin and covert fraud, yet in this jurisdiction, absent fraud, it has not been the rule to avoid a fair transaction between two corporations solely on the ground of unity of person Vantine v. Butler. nel in directors, or unity of voting power in stockholders, or because of interlocked directorates. Defendants' learned counsel have collated a line of cases whose doctrines run agreeably to the foregoing pronouncement. They will appear in the headnotes of our reporter and some of them are cited supra. We will not lengthen this opinion by quoting from them or citing them here. The auxiliary relief of a receivership falls with the principal relief, to-wit, rescission, and hence needs no attention if the latter be denied. On the whole case, in view of the premises, the decree is affirmed. It is so ordered. All concur. LIZZIE VANTINE v. MARY BUTLER et al., Appellants. Division One, May 31, 1913. 1. PARTITION: Right of Plaintiff to Maintain: Former Judgment Establishing Heirship. A final judgment of the circuit court decreeing plaintiff to be a pretermitted heir of testator, and appealed from by defendants without bond and still pending and unaffirmed in the appellate court, is competent evidence to establish the fact that plaintiff has an interest in the land to be partitioned. Such judgment was conclusive upon the parties until reversed, and defendants cannot question its conclusiveness in the subsequent partition proceeding, where they do not seek to postpone that proceeding until the determination of the former suit by the appellate court. 2. -- : Present Right to Maintain: Pretermitted Heir. A pretermitted heir has a present right to prosecute her suit for a partition of testator's real estate, and therein to set up her right as his child, independently of any prior suit to establish her heirship and title to her share in his entire estate. 3. ———: Suit Contesting Will Pending. The fact that some of the devisees under the will, after plaintiff. pretermitted by the will, brought her present suit in partition, instituted an action against the other devisees to set aside the Vantine v. Butler. will, does not constitute a defense to her suit. The plaintiff does not claim under the will, and whether it be established or annulled in the suit by the devisees inter sese she is not affected as to the extent of her rights in decedent's estate under the statute which entitles the child of the deceased not mentioned in the will "to such proportion of the estate of the testator, real and personal, as if he had died intestate." Appeal from Boone Circuit Court.-Hon. N. D. Thurmond, Judge. AFFIRMED. Whitecotton & Wight and Harris & Finley for ap pellants. (1) There was no competent testimony tending to prove that the respondent had any right or interest in the land asked to be partitioned, and especially no right to the present possession of her share in severalty, which is necessary for the party to have before they can maintain partition. 21 Am. & Eng. Ency. Law, 1151. (a). Partition may be maintained when the party is disseized who brings the suit, but even where that is the law, there must be a present right of entry. (b). While the appeal did not suspend the judgment entered in the suit brought to determine the heirship of the plaintiff, still, it does not give the respondent the right of present entry, having been appealed. State ex rel. v. Dillon, 96 Mo. 61. (2) The court entered judgment without any substantial testimoney upon which to base it. The answer is a general denial, followed by an affirmative defense in the nature of a plea in abatement. Except as to the question as to the value of the land, there is no testimony tending to prove the issue joined, except the judgment of the former suit offered in evidence, and the issue determined in that suit, being solely the question of the heirship of the respondent, said judgment was not competent for any other purpose than to prove the heinship of the respondent, if that, under all the facts Vantine v. Butler. shown. (3) There being no substantial testimony, tending to prove the substantive allegation of plaintiff's petition, the court should have given appellants' declaration directing judgment dismissing plaintiff's bill Gillespy & Conley for respondent. The record shows the proceedings in the case which establishes respondent's heirship and tenancy in common with defendants and defendants' interest in these particular lands. These records were not objected to, nor exceptions saved, and their competency cannot now be called in question. They establish her right to the present possession of her share in severalty. (a) Respondent has a right of entry. A widow's claim of dower or quarantine is not adverse to the claims of heirs. Thomas v. Black, 113 Mo. 70; Colvin v. Hauenstein, 110 Mo. 575. The defendants claim under the will of John Butler, and this will does not create estates inconsistent with plaintiff's claims and therefore adverse. Shepperd v. Fisher, 206 Mo. 249; O'Brien v. Ash, 169 Mo. 283; Collier v. Gault, 234 Mo. 457; Chapman v. Hullman, 191 Mo. 237; Breidenstein v. Bertram, 198 Mo. 328. (b) Appellants concede the appeal did not suspend the judgment but say the judgment although final and unsuspended did not give plaintiff a right of entry. The case they cite holds that a final judgment sustaining an injunction is not suspended by an appeal, and that if it is disobeyed contempt proceedings may be brought for disobeying it. While the case is hardly in point the logic of it sustains respondent's view that the judgment is final until reversed. Until reversed or set aside the prior decree is a final one, and where no appeal bond is given the judgment is not suspended nor is execution thereon prevented. Rodney v. Gibbs, 184 Mo. 11; Burgess v. O'Donoghue, 90 Mo. 299. When the decree was offered in evidence it was a valid subsisting Vantine v. Butler. decree unreversed and in full force and effect and in no way suspended by a supersedeas. Rodney v. Gibbs, 184 Mo. 11; Ritter v. Democratic Press Co., 68 Mo. 458. An appeal does not vacate the judgment below or prevent it from being pleaded or given in evidence as an estoppel upon issues that were tried and determined in the case. Edmonston v. Carter, 180 Mo. 515; Ranson v. City of Pierre, 41 C. C. A. 585, 101 Fed. 665; Freeman on Judgments (4 Ed.), sec. 328; 2 Black on Judgments (2 Ed.), secs. 510, 685. STATEMENT BY THE COURT. Plaintiff sues as the child and heir of John Butler, who died on the 28th of September, 1906, after having made a will devising his estate, consisting of land and personalty wherein she was neither mentioned nor provided for, for a partition of a portion of his real estate between herself and widow and devisees mentioned in said will, alleging that she is entitled to an undivided one-sixth interest in the fee of said land, subject to a dower interest of the widow therein, to whom said land had been devised during her natural life or widowhood with remainder at her death or remarriage to her codefendant, Loutetia Phelan, also a daughter of said John Butler, deceased. The petition then specifically sets out the respective interests of the parties, and alleges that the personal estate of the deceased, John Butler, is amply sufficient to pay off all his debts, and that the land in question being insusceptible of advantageous division should be sold for partition. The two defendants are the devisees under the will, to whom the particular land sought to be partitioned was devised, and answered (1) by a general denial; (2) by way of affirmative defense and plea in abatement that plaintiff prior to the institution of the present suit had instituted another action in said court against all the heirs of John Butler, deceased, seeking to establish her |