author: POX, J.

text:
    IDA CHAMBERLAIN et al. v. WAPLES et al.; McEVOY, Appellant.
    Division Two,
    January 31, 1906.
    1. PARTITION: Right to Possession. To maintain the action of partition the parties seeking such partition must have either actual or constructive possession. It is not a suit to try the title or to settle the right to a disputed possession. If parties joined as defendants are in actual possession, claiming the entire estate adversely to plaintiffs, partition to determine the title can not be maintained. And if that is the real purpose of the suit, the contention, in a suit which is clearly one for partition, that the prayer for a partition is a mere incident of the suit to ascertain and determine the titles and interests of the parties, is untenable.
    2. -: --: Decree. A decree in partition can not award a writ of ouster against one of the defendants in actual possession who claims adversely to the coparceners, and for that reason partition is not maintainable where there is adverse possession.

      Appeal from Jackson Circuit Court. — Hon. James Gibson, Judge.
    Reversed and remanded.

      Jolm F. Glennon and Boland Hughes for appellant.
    (1) This is a partition suit and McEvoy being in the undisputed ppssession of that part of the land described in his answer, claiming the same adversely to all the other parties to the suit, the question of his title could not be tried in this case. Lambert v. Bloomer, 26 Mo. 471; Shaw v. Gregoire, 41 Mo. 407; Holloway v. Holloway, 97 Mo. 628; Estes v. Nell, 140 Mo. 639; Houston v. Houston, 139 Mo. 229; Colvin v. Hauenstein, 110 Mo. 575; Snyder v. Arn, 86 S. W. 197; Coberly v. Coberly, 87 S. W. 960. (2) The two actions, for possession and to try title, were improperly joined in one count of the petition.

      Scarritt, Griffith & Jones for respondents.
    (1) Appellant will not question the right of plaintiffs to bring an action against him under section 650, for the purpose of having the court ascertain and determine appellant’s right and title, if any, to the land in question. That statute has been often construed and the rights of parties thereunder are well settled. Meriwether v. Love, 167 Mo. 514; Garrison v. Frazier, 165 Mo. 40; Huff v. Imp. Co., 157 Mo. 65. (2) Plaintiffs’ petition unquestionably states a perfect and complete cause of action under section 650, Revised Statutes 1899. The prayer of the petition is in the very language of the statute. Spore v. Land Co., 186 Mo-. 659; Meriwether v. Love, 167 Mo. 514; Garrison v. Frazier, 165 Mo. 40; Huff v. Imp. Co., 157 Mo. 165; Holloway v. Holloway, 97 Mo. 640. (3) “Whether or not partition is decreed in this case, among the owners of the land, is a matter that does not concern appellant McEvoy. The court has found and decreed that McEvoy has no right, title or interest whatever in this land. Consequently, in the partition thereof McEvoy has no interest or voice. The appellate court will not inquire into that part of the decree of the lower court which concerns partition of the land, until complaint is made by some one who has an interest in the land and a right to complain. None of the parties interested is appealing from the decree as to partition. Whether or not partition was rightly prayed and decreed in this case is, therefore, merely a moot question. This court does not sit to determine merely moot questions. Wirt v. Dinan, 41 Mo. App. 236. Appellant will not be permitted to obtain a reversal of the case upon a point that does not affect him. Kansas City v. Smart, 128 Mo. 272; St. Louis v. Lanigan, 97 Mo. 175. (4) In his brief in this court, defendant McEvoy for the first time raises the point that a prayer for an adjudication as to the title of the respective parties and the prayer for petition were improperly joined in the single count of the petition. This point was not raised by motion, demurrer or otherwise in the lower court, nor was it called to the court’s attention in the motion for new trial. This objection has therefore been waived. Bank v. Dillon, 75 Mo. 380'; Baker v. Raley, 18 Mo. App. 567; Kern v. Pfaff, 44 Mo. App. 29.
   POX, J.

— This cause is here by appeal on the part of Patrick J. McEvoy, from a decree and judgment of the circuit court of Jackson county, Missouri. The record discloses that the most vital legal proposition involved in this cause rests upon the nature and character of this proceeding; hence, it is essential to- here reproduce the pleadings of the parties to the controversy. The petition upon which the judgment and decree rests is as follows, omitting title of the cause:

‘ ‘ Plaintiffs for their cause of action against the defendants state that the plaintiff, The American National Bank, is a corporation organized and existing under and-by virtue of the national bank laws of the United States, and is engaged in the banking business at Kansas City, Missouri. That plaintiffs and defendants are the owners of the rights and titles hereinafter particularly stated in and to the following described lands situate in Jackson county, Missouri, to-wit: That part of the west half of the west half of section twenty-three, township fifty, range thirty-three, which is bounded on the north by the Missouri river; on the east by the east line of the west half of the west half of said section twenty-three; on the south by the north line of the southwest quarter of the southwest quarter of section twenty-three, and on the west by the west line of said section twenty-three.
“That the plaintiff Ida Chamberlain owns and holds a f ee-simple title to an undivided ten thirty-sixths of said real property; thatplaintiff William N. Marshall is the owner and holder of the promissory note described in and secured by a certain deed of trust dated June 20, 1891, recorded in book B — 474, page 342, in the office of the recorder of deeds in Jackson county, made by Norman H. Chamberlain to E. C. Mapledorum, trustee for Harvey L. Daugherty, and as the owner and holder of said note and deed of trust securing the same has a lien for the amount of the said indebtedness now unpaid upon the undivided ten thirty-sixths of said real property now owned and held by plaintiff Ida Chamberlain; that plaintiff Oliver M. Spencer owns and holds a fee-simple title to an undivided four thirty-sixths of said real property; and that the plaintiff, The American National Bank of Kansas City, owns and holds a fee-simple title to an undivided twelve thirty-sixths of said real property; that defendants Frederick Funke and Alice Funke each own and hold a fee-simple title to an undivided four thirty-sixths of said real property; that defendant Charles I. Waples owns and holds a fee-simple title to- an undivided two thirty-sixths of °said real property.
“Plaintiffs state that defendants Patrick J. McEvoy and Elizabeth A. McEvoy are husband and wife, and that defendants Patrick J. McEvoy and Richard Roe are in possession of a part of said real estate and claim some right or title to some interests in said real estate", but plaintiffs state that the share or quantity of the interest of defendants Patrick J. McEvoy, Elizabeth A. McEvoy and Richard Roe in and to said real property, is unknown to plaintiffs.
“Plaintiffs state that defendants Charles I. Waples, Frederick Funke and Alice Funke are non-residents of the State of Missouri and cannot be served with process in this State in the manner prescribed in article 4, chapter 8, of the Revised Statutes of Missouri of 1899.
“Wherefore, plaintiffs pray that in accordance with the law in such case made and provided, the court ascertain, determine and declare the rights, titles and interests of the respective parties to this suit in and to the land and premises hereinbefore described, and define and adjudge the title, estate and interest of the parties severally in and to the said real property, and give judgment that partition be made between such of said parties as shall have any right therein according to their rights as the same may be determined and adjudged by the court, and that commissioners be appointed as provided by law to make partition of said lands; that if it shall appear to the court that partition of said premises without gi'eat prejudice to the owners cannot be had, that the court order the sale of said real estate without the appointment of commissioners for the partition thereof in kind, and that the court in such case appoint a special commissioner to make the sale or sales of such real estate under the direction, of this court, and divide the proceeds of said sale between the parties hereto, as ordered by the court; and for such other and further orders and decrees in the premises as to the court may seem proper and right. ’ ’

The abstract of record does not disclose any answer by any of the defendants except the appellant Patrick J. McEvoy, which answer was as follows:

“Now at this day comes the defendant Patrick J. McEvoy and for separate answer to the plaintiffs’ petition, denies each and every allegation therein contained not herein expressly admitted.
‘£ The said defendant for further answer says, that he is now in the absolute, exclusive and undisputed possession of all that part of the real estate described in the petition which lies north of a line drawn from a point on the east line of the west one-half of the northwest quarter of section twenty-three, township fifty, range thirty-three, twelve hundred feet north of the northeast comer of the southwest quarter of the northwest quarter of said section to a point on the west line of said section, nine hundred and eighty-seven feet north of the northwest corner of the southwest quarter of the northwest quarter of said section.
“That said defendant is the absolute owner in fee of an indefeasible estate of all the land described in the petition, lying north of the line aforesaid; and that the plaintiffs and the other defendants herein, have no interest or estate therein whatever, except the wife of this defendant, Elizabeth A. McEvoy, whose interest herein is such as arises out of her marital relations to this defendant.
“Said defendant further says that he has been in the exclusive1, open, notorious, undisputed possession of all of the land mentioned in the petition lying north of the line aforesaid, claiming title thereof for more than twenty years prior to the institution of this suit. Wherefore, he asks judgment and that he may he discharged with his costs. ’ ’

Plaintiffs filed their reply, which was a general denial of the allegations contained in the answer.

This cause was tried hy the court without the aid of a jury. Upon the trial it was admitted that the petitioners had a perfect record title from the United States hy mesne conveyances to themselves to all that part of west half of the northwest quarter of section 23, which is south of the Missouri river, as it existed November 9, 1887, together with all accretions to said land since said date. Plaintiffs introduced a quit-claim deed from J. R. Lynn, John M. Lynn, Patrick McEvoy, and others, to Hadley, Funke and Perrin, dated November 9', 1887, conveying the land, “it being the intention to convey all the land in the north half of the west half of fractional section 23, township 50, range 33, south of the Missouri river, except the south forty acres thereof, containing 73.16 acres more or less. ’ ’ It was admitted that the parties petitioning obtained title from Hadley, Funke and Perrin.

Defendant McEvoy offered evidence tending to prove the following facts:

That at the time of the execution of the deed above referred to, the south bank of the Missouri river was some distance south of the line mentioned in the answer as the south line of the land owned by defendant Mc-Evoy. That at the time there was an island in the river some distance from the south bank of the river where it marked the north boundary of the land conveyed by said deed. That at that time and for some years afterwards a part of the current of the river ran on the south of the island, between it and the north bank of the river. That when the bridge was built by the C. M. & St. P. Ry. Co., across the river in 1886, just west of the west end of the island, a pier of the bridge was set in the edge of the river, which deflected the portion of the current which then ran on the south of the island, to the north of the island, and then the channel between the island and south bank of the river began to fill up by accretions gradually forming along the south bank of the river and the south margin of the island, until the channel between the island and river bank was obliterated and filled np. That defendant McEvoy took possession of the island in 1876, and has continued in possession ever since, of the land which was then the island and all aeretions forming thereto, to the line marked by the meeting of the accretions forming to the island and the bank of the river, as it existed in 1887, when the deed was made. That when the accretions thus forming filled up the channel between the island and main bank of the river in the year 1890, defendant McEvoy built a fence along the line marked by the meeting of the accretions, forming on the island and the bank of the river, and has maintained it from that time to the present; and defendant McEvoy claims that particular piece of land so fenced. That his possession has been continuous, undisturbed, exclusive, adverse and notorious under a claim of right and title to the land thus marked.

It is unnecessary to detail the evidence offered by plaintiffs in rebuttal of the testimony offered by defendant McEvoy and wife upon the issues presented in the answer, but it is sufficient to dispose of the legal propositions involved to say that numerous witnesses were introduced whose testimony tended to disprove the claim of the defendant upon the issues as is presented in their answer.

At the close of the evidence defendant Patrick J. McEvoy requested the court to give the following instructions :

“1. The court declares the law to be that if the court finds from the evidence that defendant Patrick J. McEvoy is in possession of the land described in his answer, asserting an exclusive ownership, then the finding and judgment must be for the defendant Patrick J. McEvoy in this action.
‘ ‘ 2. The court declares the law to be that if defend- . ant Patrick J. McEvoy entered upon the land described in his answer, about 1886, and erected a building thereon, and about the year 1890 inclosed the same with a fence, and has since said time maintained such fence and has cultivated the land or parts of it, and occupied the same either by himself or by his tenant, and denied the right of the plaintiffs to the posession of the same, then his possession has been hostile and adverse to plaintiffs, and the finding and judgment must be for defendants.
£ ‘ 3. If the court finds from the evidence that at tlie time McEvoy made the deed to Chamberlain read in evidence by plaintiffs, there was a part of -the current of the water in the river which flowed along where the defendant McEvoy built his fence, and that McEvoy took possession of the land now claimed by him, or had possession thereof, by building thereon a small house and has been in possesion since said time by tenant or otherwise, claiming title thereto, then the finding and judgment must be for defendant McEvoy in this case. ’ ’

These instructions as requested by defendant were refused by the court, to which action of the court objections and exceptions were duly preserved. The cause was then submitted and the court rendered and entered of record the following decree:

£ £ On this day come the plaintiffs Ida Chamberlain, William N. Marshall, Oliver M. Spencer and the American National Bank of Kansas City and file proof of publication herein, showing that defendants Charles I. Waples, Fredrick Funke and Alice Funke (non-residents) were duly notified by publication, and this cause coming on regularly to be heard and plaintiffs appearing by their attorneys, Scarritt, Griffith & Jones, and defendant Patrick J. McEvoy having heretofore answered and now appearing in person and by his attorney, Roland Hughes, Esq., and it appearing to the court that defendants Elizabeth McEvoy and Richard Roe were duly and personally served with process herein, and that defendants Charles I. Waples, Fredrick Funke and Alice Funke are non-residents of the State of Missouri and have been duly notified by publication and that all of said defendants except Patrick J. McEvoy, though, duly called, come not hut made default.
“Wherefore, on motion of the plaintiffs by their attorneys, it is ordered that judgment be taken against all of the defendants except said Patrick J. McEvoy, by default, and this cause being taken up and submitted to the court upon the pleadings and the evidence adduced by plaintiffs and said defendant Patrick J. McEvoy, and the court being fully advised in the premises doth find: that the allegations of the plaintiffs ’ petition are true; that in 1891 Fredrick Funke died testate in Jackson county, Missouri, leaving a wife, the defendant Alice Funke, and a son, the defendant Fredrick Funke, who are the sole heirs of Frederick Funke, deceased, and the court doth find that the estate of Fredrick Funke deceased has been finally and fully settled in the probate court of Jackson county; that the plaintiffs Ida Chamberlain, Oliver N. Spencer and the American National Bank of Kansas City, and defendants Charles I. Waples, Frederick Funke and Alice Funke are the sole owners of the real estate described as follows, to-wit: That part of the west half of the west half of section twenty-three, township fifty, range thirty-three, in Jackson county, Missouri, which is bounded on the north by the Missouri river, on the east by the east line of the west half of said section twenty-three, on the south by the north line of the south half of the northwest quarter of the southwest quarter of said section twenty-three, and the court doth define, adjudge and decree the title, estate and interest of the respective parties, plaintiffs and defendants, in and to said real estate to be as follows, to-wit: That Ida Chamberlain owns and is entitled to an undivided ten thirty-sixths interest and estate in and to said real estate, subject to a deed of trust dated June 20,1891, and recorded in Book B — 474, page 342, in the office of the recorder of deeds in and for Jackson county, at Kansas City, made by said Ida Chamberlain and Norman H. Chamberlain, her husband, to E. C. Mapledorum trustee for Harvey L. Daugherty, which said deed of trust and the note secured by the same is now owned and held by William N. Marshall; that plaintiff, Oliver M. Spencer, owns and is entitled to an undivided four thirty-sixths interest and estate in and to said real property; that plaintiff, the American National Bank of Kansas City, owns and is entitled to an undivided twelve thirty-sixths interest and estate in and to said real property; that defendants Frederick Funke and Alice Funke each owns and is entitled to an undivided four thirty-sixths interest and estate in and to said property; that defendant Charles I. Waples owns and is entitled to an undivided two thirty-sixths interest and estate in and to said real property; that defendants Patrick J. McEvoy, Elizabeth A. McEvoy and Richard Roe do not own and are not entitled to any title, estate or interest whatever in or to said real estate or any part thereof.
“Wherefore it is further considered, adjudged and decreed by the court that partition of the land herein-before described be made herein amongst the parties hereto according to their respective estate and interests as hereinbefore defined and adjudged and set forth, and that ten thirty-sixths of the whole thereof be set off to Ida Chamberlain subject to the lien of the said deed of trust held by William N. Marshall; and that four thirty-sixths of the whole thereof be set off to Oliver M. Spencer, and that twelve thirty-sixths of the whole thereof be set off to plaintiff the American National Bank of Kansas City; that four thirty-sixths of the whole thereof be set off to defendant Fredrick Funke and that four thirty-sixths of the whole thereof be set off to defendant Alice Funke; that two thirty-sixths of the whole thereof be set off to defendant Charles I. Waples; and for the purpose of making said partition and divisions of said land the court doth hereby appoint William S. Woods, C. II. Whitehead and Daniel W. Pike, three competent persons and residents of the county of Jackson, to be commissioners to make said partition as herein defined and adjudged and that said commissioners make report of their proceedings herein according to law.”

Motions for new trial and in arrest of judgment were duly filed and by the court overruled. Defendant Patrick J. McEvoy, in due time and proper form, from the judgment and decree in this cause, prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

It is apparent from the record before us that the only legal proposition involved is the correctness and sufficiency of the decree and judgment rendered in this cause. At the very inception of the consideration of the question disclosed by the record, it is essential to first determine the nature and character of the proceeding. In fact, that is about the only question to be determined and is the only one to which our attention is directed by counsel for both respondent and appellant. It is insisted by appellant that this action is simply one for partition of real estate as provided by the statute. That being the nature of the action, the defendant McEvoy being in possession of a part of the land sought to be partitioned, claiming it adversely to the plaintiffs and his co-defendants, who it is alleged are owners of certain undivided interests in said land, it is also insisted that the defendant’s claim or title to the land of which he is in possession cannot be litigated in this proceeding. On the other hand, it is insisted by respondents that this is a proceeding predicated upon section 650, Revised Statutes 1899, to ascertain, determine and declare the rights, title and interests of the respective parties to this suit in and to the land in dispute, and that the prayer for partition is a mere incident to the main-proceeding under section 650.

We have carefully scrutinized the petition in this ease and it is manifest that this is not a proceeding based upon section 650, Revised Statutes 1899, and it is equally clear that the petition was not filed upon that theory. It is simply a plain action in partition, which is fully provided for by the statute of this State. The pleading was named a “petition for partition,” and while the allegations in the petition must determine the nature and character of the proceeding, yet this fact at least indicates that the pleader had in mind an ordinary partition suit. The allegations in the petition are in perfect harmony with the name of the petition — that is, one for partition. The interests of plaintiffs are alleged and the interest of defendants Fredrick and Alice Funke and Charles I. Waples are clearly set forth. It is then alleged ‘ that defendants Patrick J. McEvoy and Elizabeth A. McEvoy are husband and wife, and that defendants Patrick J. McEvoy and Richard Roe are in possession of a part of said real estate and claim some right or title to some interests in said real estate, but plaintiffs state that the share or quantity of the interest of defendants Patrick J. McEvoy and Richard Roe in and to said real property, is unknown to plaintiffs. ’ ’ Then follows the prayer for judgment for partition and the appointment of commissioners to make the same in kind, provided it can be done.

It is suggested by respondent that the prayer of the petition is in exact accord with the provisions of section 650, asking the court to ascertain and determine the title and interests of the respective parties to the land in suit, etc. That is true, but is not such prayer appropriate and in harmony with good pleading in a plain, ordinary partition suit1? The essential requisites of a proper judgment in a partition proceeding are that the court shall ascertain and define the interests of the parties among whom the land is to be partitioned, and it is ■ equally essential that the judgment predicated upon a proceeding based upon section 650 should ascertain and define the title and interest of the parties to the land in dispute between the parties to the suit.

The vital and essential difference between an action in partition and one under section 650 is that in the former the action proceeds npon the theory that the parties are joint tenants, tenants in common or coparceners; in the latter, the proceeding is to ascertain and define the title of adverse claimants to the property. It is fundamental that to maintain the action of partition, the parties seeking such partition of real estate must have either the actual or constructive possession of the land sought to be partitioned. The- law upon this proposition is well stated in 21 Am. and Eng. Ency. Law (2 Ed.), 1147 and 1148. It is there said: “At common law neither the title nor the right to possession of land can be determined in an action for partition. It follows that the plaintiff in partition, in the absence of a statute authorizing the trial of questions of disputed title, must have a clear and undisputed title to an undivided share of the land of which partition is sought. If the applicant is not in the actual or constructive possession of the premises to be partitioned, and they are held adversely, and his title is disputed, he cannot maintain the action. In most jurisdictions this rule has been adopted irrespective of whether the remedy is sought by petition or by a bill in equity. Partition contemplates not the recovery of the possession of premises which are held adversely to the petitioner, but the division of lands in the possession of the petitioner. The right to have the estate divided presupposes an acknowledged right to the possession of the moiety claimed. A party out of possession cannot try his title in that form of action. ’ ’

Partition of lands in this State is regulated by statute. Section 4373, Revised Statutes 1899, provides: “In all cases where lands, tenements or hereditaments are held in joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years, tenancy by tbe curtesy and in dower, it shall be lawful for any one or more of the parties interested therein, whether adults or minors, to file a petition in the circuit court of the proper county, ashing for the admeasurement and setting off of any dower interest therein, if any, and for the partition of the remainder,” etc.

It is manifest from this provision that the statute proceeds upon the theory that the’ applicants for such partition are either in actual or constructive possession of the premises and are either joint tenants, tenants in common or coparceners. It will be observed that the petition in this cause alleges that McEvoy and Roe are in possession of a part of the land sought to be partitioned, and in view of the allegations in the answer and the proof adduced upon the trial, it will certainly not be contended that the defendant McEvoy was not claiming the land of which he was in possession adversely to the plaintiffs and co-defendants, whose interests are set out in the petition. In fact there can be no dispute from this record that McEvoy was claiming such land adversely to the plaintiffs and co-defendant, whose interests are set out in the petition, and having been made a party to this partition proceeding, the court, under the well-settled rules of law, repeatedly announced by this court, could not undertake to try the title or the right of possession of McEvoy to such land and enter a decree of partition of it. [Lambert v. Blumenthal, 26 Mo. 471; Shaw v. Gregoire, 41 Mo. 407; Holloway v. Holloway, 97 Mo. 628; Estes v. Nell, 140 Mo. 639; Hutson v. Hutson, 139 Mo. 229; Colvin v. Hauenstein, 110 Mo. 575; Snyder v. Arn, 187 Mo. 165; Coberly v. Coberly, 189 Mo. l. c. 16.]

Learned counsel for respondent suggest in their brief that the decree of the lower court does not undertake to award a writ of ouster against defendant Mc-Evoy, and states that the question of McEvoy’s right to possession could be determined by ejectment or other appropriate action. This suggestion emphasizes the correctness of the conclusion that a decree of partition cannot he rendered in a cause where one of the parties to the suit is claiming the land adversely to all those who seek its partition, for the reason that the commissioners appointed by the court to make partition of it, until the right of possession by an apropriate action in ejectment had been determined, could not proceed to the discharge of their duties in the division of the land while the defendant remains in the adverse possession of the premises. Take this case, and it is conceded that McEvoy is in possession, and the record discloses that he is claiming adversely to all the parties who claim an interest in this particular piece of land; how are the commissioners to enter upon these premises in the adverse possession of McEvoy to partition it among those whom the court has found are the owners of it? It simply cannot be done; hence, follows the well-settled rule heretofore announced, that the title and the right of possession must first be settled before there can be a decree of partition between the joint tenants, tenants in common or coparceners.

Again it is clear that this proceeding is not one under ^ section 650, to ascertain and define the title of the defendant McEvoy to the land in dispute, for if such was the case, we are unable to understand why Frederick and Alice Funke and Charles I. Waples, whose interests in this land were known and alleged in the petition, should be made defendants in this proceeding. If such was the proceeding those defendants should properly be made plaintiffs, for their interests in the land are known and are clearly alleged in the petition. It appearing from the allegations in the petition that the defendant McEvoy is in possession of a certain part of the land sought to be partitioned, and it being clearly disclosed by the record that such possession is adverse to all the parties claiming any interest in such land, and he being made a party to this proceeding, there was only one course for the trial court to pursue in this cause and that was to defer the rendition of a decree in partition until the title and right of possession as between the parties whose interests are alleged in the land, and defendant McEvoy who is in adverse possession, is settled in an appropriate action for the recovery of the possession of snch land.

Onr attention is directed by counsel for respondent to the case of Holloway v. Holloway, 97 Mo. 628, in support of the contention that defendant McEvoy’s title may be litigated in this proceeding. In that case it will be observed that the defendant did not claim to be holding the premises adversely to the plaintiffs, but was simply claiming that by warranty deed he was the owner of the undivided one-half, and the court, under the provisions of section 4389, Revised Statutes 1899, clearly had the right to determine the adverse claims of the tenants in common to certain undivided portions of the land. Manifestly that is not this case. Here the defendant McEvoy, as to the land described in his answer, asserts absolute title as against all the parties to this proceeding, and the petition of the plaintiffs recognizes that he is in possession of such tract of land which is definitely described, and this land, according to the testimony, was inclosed by a fence by the appellant. That appellant is in possession of this land and claiming it adversely to all the parties who claim any interest in the land sought to be partitioned, is made, by the record, too clear for discussion, and we again repeat that, the defendant- McEvoy having been made a party to this proceeding, before any judgment or decree of partition can be made of the definitely described premises, of which he has possession and claiming the same adversely to all the other parties to this suit, there must be, by an appropriate action in ejectment, the determination of his right of possession, and so long, as he is in the. actual, adverse possession of such land, we are unable to see how the commissioners appointed by the court are to enter upon it for the purpose of dividing it between the parties who claim an interest in it.

We have thus indicated our views upon the legal propositions presented by the record in this cause, which results in the conclusion that the judgment should be reversed and the cause remanded to be proceeded with in accordance with the views herein expressed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    SICHER et al. v. RAMBOUSEK, Appellant.
    Division Two,
    January 31, 1906.
    1. APPEAL: No Exceptions: Equity Case: Competency of Witnesses. Whether the case he one at law or in equity, if no exceptions were taken to the overruling of the motion for a new trial, there is nothing before the appellate court for review . except the record proper. If no exceptions were saved to the court’s action in overruling the motion for new trial, the objections that certain witnesses were incompetent and that certain other evidence was improperly admitted, can not be considered. In such case the appellate court is precluded from inquiring into the weight of the evidence, although the suit is one in equity.
    2. REFORMING CONTRACT: Parties and Privies. Courts of equity reform written instruments concerning lands so as to make them express the real agreements made between the parties thereto where, because of the mistake or misprision of the scrivener, the writing fails to do so. And in such case the instrument will he reformed, not only as between the parties thereto, but as between some of them and the privies of the others, such as their personal representatives or heirs, or judgment creditors, or assigns, grantees or purchasers with notice.
    3. -: Purchaser With Notice: Inquiry. One who has notice-of a fact which ought to have put him on inquiry, and which he might have discovered by using due diligence, can not claim to be a purchaser without notice.
    4. -: Laches. Mere lapse of time does not act as a bar in cases of purely equitable jurisdiction. The fact that parties to a contract made in 1864, concerning an easement or passageway along the rqar of their three adjoining stores, made no effort to have the contract reformed until 1901, does not alone make the plea of laches available.

      Appeal form St. Louis City Circuit Court. — Row. Franklin Ferriss, Judge.
    Affirmed.

      John J. O’Connor for appellant.
    (1) Plaintiffs are estopped from maintaining this action or of haviug “agreement” reformed or enforced in any shape against defendant, hy reason of their deed to Solomon Emanuel and his deed to Isadore Simon, both of which deeds convey lot 30 free of the agreement and one of said deeds was executed prior to the recording of the “agreement.” And Simon, being a stranger, bought without notice or knowledge of the said agreement, and plaintiffs cannot recover the use of any part of lot 30 in the face of their own deeds. Steele v. Culver, 158 Mo. 136; Cadematori v. Gauger, 160 Mo. 352; Whyte v. St. Louis, 153 Mo. 80; State ex rel. v. Branch, 151 Mo. 622. (2) The wholesome maxim intended to insure the peace and repose of society, “vigilantibus, non dormientibus, subvenient leges,” closes the doors of a court of equity to the plaintiffs’ claim. Stale demands will not be aided where a party has slept upon his rights and acquiesced for a great length of time; as was done by plaintiffs in this case. Davidson v. Mayhew, 169 Mo. 267; Becht v. Becht, 168 Mo. 525; Jones v. Rush, 156 Mo. 364; Kroening v. Goehri, 112 Mo. 648; Loomis v. Railroad, 165 Mo. 470. (3) Equity will not write into a deed of long standing, by way of reformation, a condition giving one of the parties thereto an advantage over the other party unless the error sought to be overcome by the reformation is an error mutual between the parties to the deed, and patent on the face of the instrument sought'to be reformed; the error cannot be raised by parol evidence. Bartlett v. Brown. 121 Mo'. 353; Sweet v. Owens, 109 Mo. 7. (4) The trial court erred in-permitting Sicher, over defendant’s objection, to testify in Ms own favor. See. 4652, R. S. 1899; Kersey v. O’Day, 173 Mo. 570'; Curd v. Brown, 148 Mo. 95.

      M. Hartmann and WaWher S Muench for respondents.
    (1) No exception having been taken to the action of the trial court in overruling the motion for a new trial, there is nothing before this court for review except the record proper. Jackson v. Railroad, 80 Mo. 147; Cowan v. Railroad, 80 Mo. 423; State v. Harvey, 105 Mo. 316; Danforth v. Railroad, 123 Mo. 196; Pieper v. Neumeister, 63 Mo. App. 362; State ex rel. v. Burckhardt, 83 Mo. 430. (2) Courts of equity will correct mistakes in deeds as between the original parties, or those claiming under them in privity, such as personal representatives, heirs, assigns, grantees, judgment creditors or purchasers from them with notice of the facts. Sieberling v. Tipton, 113 Mo. 380; Hagman v. Shaffner, 88 Mo. 28; Martin v. Nixon, 92 Mo. 35. (3) One who has notice of a fact which ought to have put him on inquiry, and which he might have discovered by using diligence, cannot claim as a purchaser without notice. Kerr on Fraud and Mistake, p. 316. (4) Mere lapse of time does not act as a bar in cases of purely equitable jurisdiction. Bollinger v. Chouteau, 20 Mo. 95; Epperson v. Epperson, 161 Mo. 577; 18 Am. and Eng. Ency Law (2 Ed.), 97; Wheeling v. Reyman, 61 U. S. A. 541. (5) Defendant took the property subject to all existing easements, whether originally created by grant or not, for the deed through which she acquired. title recites that the conveyance is subject to “existing agreements and easements.” Smith v. Musgrove, 32 Mo. App. 241; House v. Montgomery, 19 Mo.,App. 170; Jones on Easements, sec. 184. (6) In construing an instrument of writing, the court should adopt a construction which can be given practicable effect. Me-Cormack v. Crow, 15 S. W. 181; McConnell v. Ratliburn, 46 Mich. 303.

      John J. O’Connor for appellant in reply.
    An equity case is reviewable by the appellate court as upon its first hearing, and as though it had originated in the appellate court. And where the evidence is preserved in the bill of exceptions, and brought up on a full transcript, the appellate court will, regardless of the rulings or conduct of the trial court, review the evidence and render such judgment as, on the law and the evidence, should have been rendered by the trial court. Sheridan v. Nation, 159 Mo. 27-; Robertson v. Shepherd, 165 Mo. 360; Hoeller v. ITaffner, 155 Mo. 589; Rice v. Shipley, 159 Mo. 399; Halstead v. Mustion, 166 Mo. 488; Bank v. Slattery, 166 Mo. 620; Fitzpatrick v. "Weber, 168 Mo. 562; Railroad v. Brandon, 81 Mo. App-, 1. On examination, it will be seen that the cases cited under this head by respondent fail to show that the rule is applicable to the facts in this cause. The cases he relies on are either actions at law, or involve the specific performance of a contract, where one of the parties, having secured the benefit, seeks to avoid the contract for some inaccuracy of description, as, for instance, the case of Seiberling v. Tipton, 113 Mo.- 380, where the defendant sought to avoid the force of a deed because it omitted to give the number of the block in which the lot was situated.

      M. Hartmann and Walther & Muench for respondents in reply.
    The rule, that in the absence of an exception to the action of the trial court in overruling a motion for a new trial, there is nothing before the appellate court for review except the record proper, applies to equity cases. Lilly v. Menke, 92 Mo. App. 357; Ryan v. Growney, 125 Mo. 481; Hill v. Taylor, 99 Mo. App. 527; State ex reí. v. St. Louis Cir. Ct., 41 Mo. 579; Madden’s Heirs v. Madden’s Admr., 27 Mo. 544.
   GANTT, J.

— Plaintiffs, in their amended petition, allege that on July 18,1864, one Joseph Emanuel, Jacob Emanuel, and thé plaintiff William Sicher, were the owners of three adjacent lots of ground, each having a front of twenty-five feet on the north line of Park avenue, in the city of St. Louis, by a depth of one hundred and eight feet to an east and west alley, said Joseph Emanuel being the owner of lot number 28, Jacob Emanuel of lot number 30, and plaintiff Sicher of the intervening lot number 29 ; that being desirous of creating certain easements appurtenant to said lots-for the use and benefit of the said several owners, as well as the building then about to he erected upon said lots, the said three parties, on July 18,1864, entered into an agreement, which was reduced to writing and recorded in the recorder’s office of the city of St. Louis; that by said agreement the said parties' intended to covenant that the three houses about to he erected, one by each of said parties, should occupy the center seventy feet of said aggregate front or seventy-five feet, giving each owner one-third of seventy feet, and to forever leave vacant as a private passageway or alley the two and one-half feet, respectively, at each end of said entire tract of seventy-five feet, for the use of all the owners of said three houses, their assigns, heirs, legal representatives and tenants; that the agreement so entered into properly recites the agreement of said parties with reference to the erection of said three buildings upon the central seventy feet of said entire tract, awarded to each owner a frontage of twenty-three and one-third feet along the north line of Park avenue, and in and by said agreement the said parties did also mutually quitclaim to each other, but by inaccurate description, so much of the lot of each as might be occupied in part by the building of one of the others, respectively, as wel] as a proportionate interest in the private alleys sought to he created by this instrument, and by said writing the parties thereto did also covenant and agree that the well situated upon the rear of lot number 29, owned by plaintiff Sicher, should be used by the owners of all said three houses and their tenants, in common, and that the said well, as well as said private alley, should be kept forever in good order and free from any nuisance, by all parties using the same, and that all the parcels in which interests were by said instrument conveyed or created should be held to the several donees thereof, their heirs and assigns forever. That the parties to said agreement did thereupon proceed to execute the same and give full effect thereto by erecting three houses upon said seventy feet of ground in accordance with the true intent and meaning of said agreement, and by creating and leaving alleyways of two and one-half feet each along the eastern and western sides of said entire tract of • seventy-five feet. That by an error of the scrivener in drafting said agreement, and by mutual mistake and oversight of the parties thereto, the said alleyways were therein described as being “a space of two and one-half feet off of the west line of lot 28, and also a like two and one-half feet of the east side of lot 30,” contrary to the true intention of said parties, as the same was then and there conceived and executed by them, and the property quitclaimed was erroneously described and the grantors respectively erroneously set out in said contract as follows: The plaintiff Sicher was therein recited as conveying to Joseph Emanuel “two-thirds of a foot off of the west side of lot number 29, . . . and on which Joseph Emanuel’s wall stands;” and as having conveyed to Jacob Emanuel “two-thirds of a foot of the east side of lot number 29.” Said Jacob Emanuel was by-said contract recited as quitclaiming to William Sicher and Joseph Emanuel “ an undivided two-thirds of the two and one-half feet of grouncl off of the east side of lot number 30,” and Joseph Emanuel was recited as quitclaiming unto Jacob Emanuel and William Sicher “an undivided two-thirds of said two and one-half feet of ground off of the west side of lot number 28,” all contrary to the true intention of all said parties, as the same was then and there conceived and executed by them. That it was the intention of said parties to place said passageways along the west side of lot number 30, and the east side of lot number 28, and same should have been so described in said writing. That said Joseph Emanuel died testate, devising his property to the plaintiff, Julia Emanuel, his widow; that plaintiff William Sicher has retained his ownership in said property ever since the date of said agreement; that lot number 30, or so much thereof as is occupied by the building erected pursuant to said agreement, and subject to the existence of said easements under the terms of said contract, has, by mesne conveyances, vested in the defendant Anna Rambousek, who acquired the same by deed of Lowag dated December 22, 1898, with full notice and acceptance of said agreements and easements; that plaintiffs have heretofore and until the commision of the wrongs hereinafter complained of, as have also their .agents and tenants, ever since the execution of said agreement, continually and fully used and enjoyed the said easement, consisting of two private alleys, and that while the rear portion of the premises occupied by the said three several owners and their respective tenants, were separated by fences, yet said rear yards were connected by gates, permitting free and uninterrupted use and access for going and coming by and through private alley, from and into the rear of each of said premises, it having been intended by said agreement and being necessary especially for the use of the plaintiff Sicher and his tenants, to pass through the rear yard of the defendant by means of the gate between the property of plaintiff Sicher and defendant, and along said private alley and passageway. That notwithstanding the existence of said easements, and in violation of the same, as well as the agreement hereinbefore set ont, the defendant, on July 1, 1901, did wrongfully and unlawfully barricade, bolt and obstruct the gate leading from plaintiff Sicher ’s premises through the rear yard and into said passageway on the west of said seventy-five feet of ground, thereby preventing plaintiffs, their agents, tenants and servants from passing through, or in any way using or enjoying the said easement; that although defendant has been frequently requested to remove said obstruction, and to permit the continued use of said passageway and gate, for the benefit of all said owners, the defendant has hitherto wrongfully refused so to remove the same, but continues to barricade and obstruct said gate and passageway. The prayer was for a reformation of the said writing so as to conform to the true intention of the parties, and an order compelling defendant to remove all obstructions placed by her upon or across said gate or passageway, and forever restraining her, her agents and servants, from erecting or maintaining any obstruction of any kind interfering with the free and unlimited enjoyment of all rights and easements in and by said agreement created, and for general relief.

The answer, after admitting defendant’s ownership of lot number 30, and denying generally every other allegation of plaintiffs’ petition, set up-, that the agreement referred to in the petition was not placed on record until October 27, 1884, and that at said time Jacob Emanuel, one of the parties to said agreement, was dead; that on October 6, 1884, plaintiff Sicher, David Emanuel and Aaron Emanuel, all heirs of Jacob Emanuel, deceased, conveyed by warranty deed title to an undivided three-fifths of said lot 30 to Solomon Emanuel, who was at that time, as an heir of said Jacob Emanuel, the owner of an undivided one-fifth of said lot, and that by another deed of the same date said Solomon Emanuel acquired the remaining undivided one-fifth from his brother, Joseph Emanuel, thus becoming the owner of the whole of said lot, all of said deeds being placed on record; that by warranty deed dated September 1, 1888, said Solomon Emanuel conveyed all of said lot 30, free of said agreement referred to in the petition, to Isadore Simon; that at the time of purchasing said lot said Simon had no knowledge- of said agreement; that even if said agreement was executed, and it was the real intention of the parties thereto to create for their joint use a passageway at the west side of said lot 30, as alleged in the petition, still the plaintiffs Sicher and Julia Emanuel (wife of Joseph, who inherited an undivided one-fifth of said lot from Jacob Emanuel, deceased), by their deeds divested themselves of all and any right given them by said agreement to the use of any part of defendant’s lot number 30 and are therefore not entitled to receive the relief prayed for in the petition. The answer further avers that if said agreement was executed it has long since been abandoned, and never put in force, and that for more than thirty years there has never been any space left on the east side of defendant’s lot for a passageway; that it is not true, as alleged in the petition, that the parties to said agreement meant to have and did have a passageway two and one-half feet wide on the west side of lot number 30 for their joint use, instead of on the east side, as erroneously mentioned in said agreement, hut that, in truth and in fact, the passageway, left upon on the west side of lot 30, by Jacob Emanuel, at the time of erecting the said houses now standing on said lot, is only twenty inches wide; that even if said agreement was executed, as alleged in the petition, and the passage ways therein sought to he created were by mistake of the scrivener erroneously located, still plaintiffs have for more than eighteen years prior to the commencement of this action, knowingly permitted said agreement to remain of record without warning this defendant or her grantors that it contained an error in relation to the location of said passageways, well knowing that said lot 30 had been sold and resold and that innocent purchasers were liable to be injured in their title to said lot by plaintiffs ’ long silence regarding said alleged errors; that at the time defendant purchased said lot 30 she had no knowledge that planitiffs claimed any right under said agreement to use any part of her said lot, nor did she have any knowledge that said agreement' contained any error regarding the location of the passageways sought to be created; that plaintiffs, even if they had not divested themselves by deed of all rights in and to the use of the defendant’s lot, alleged to have accrued to them under said agreement, have been guilty of such gross laches as would preclude them from the relief prayed in the petition. That defendant and her grantors have, under color of title, for the space of ten whole years and more next before the commencement of this action, been in open and continuous adverse possession towards plaintiffs of all of said lot 30, and that during said ten years plaintiffs have not been permitted by defendant or her grantors to enter upon or use any part of said lot 30, and therefore defendant pleads the Statute of Limitations.

The reply was a general denial of the new matter contained in the answer.

The evidence showed that plaintiff William Sicher, his father-in-law Joseph Emanuel, and brother-in-law. Jacob Emanuel, owned the three adjacent lots described in the petition, and, desiring to improve the same, they entered into the agreement referred to and filed with the petition as an exhibit. This agreement is as follows :

“This agreement, made and entered into this eight day of July, A. D. eighteen hundred and sixty-four, between Joseph Emanuel, Jacob Emanuel and William Sicher, witnesseth: that whereas said Joseph Emanuel is the owner of lot number twenty-eight; said William Sicher is the owner of lot number twenty-nine; said Jacob Emanuel is the owner of lot number thirty, all in block number four of Page’s Southern addition to the city of St. Louis, each of said lots fronting twenty-five feet on the north side of Park avenue and running back one hundred and eight feet to an alley, on which said three lots said parties have jointly contracted to and are now building three houses on the center seventy feet of said lots, leaving (a space of two and one-half feet off of the west side of lot twenty-eight and also a like two and one-half feet off the eastside of lot thirty vacant) and making each of said houses standing on twenty-three and one-third feet of ground, and making the east and west houses stand on the lot of said Sicher, number 29, (and said parties hereto have mutually agreed and do hereby mutually agree1, one with the other, that the said parcels of two and one-half feet off of the west side of lot number twenty-eight and the east side of lot number thirty shall be used by them, said parties hereto or the owners of said houses and lots as tenants in common), their lots by this arrangement each being twenty-three and one-third feet front instead of twenty-five feet as before, and said parties have also agreed and do hereby agree that the well which is situated on the rear lot number twenty-nine (Sicher’s lot) shall be used by the owners of the three houses and their tenants in common, and to more fully effect said arrangement, said William Sicher hereby, in consideration of the sum of five dollars to him in hand paid by Joseph Emanuel and Jacob Emanuel, the receipt of which is hereby acknowledged, does by these presents remise, release and forever quitclaim unto the said Joseph Emanuel two-thirds of a foot off the west side of lot number twenty-nine, hereinbefore more fully described, fronting two-thirds of a foot on the north side of Park avenue by one hundred and eight feet deep to an alley and on which Joseph Emanuel’s well stands, and unto the said Jacob Emanuel two-thirds of a foot off of the east side of lot twenty-nine aforesaid, fronting two-thirds of a foot on the north side of Park avenue by one hundred and eight feet deep to an alley and on which the west wall of the house of said Jacob Emanuel now stands. And said Jacob Emanuel does hereby, in consideration of the sum of five dollars to him in hand paid by William Sicher and Joseph Emanuel, the receipt of which is hereby acknowledged, by these presents remise, release and forever quitclaim unto the said Sicher and Emanuel the undivided two-thirds of the two and one-half feet of ground off of the east of lot number thirty, hereinbefore described, running south the same width one hundred and eight feet to an alley. And the said Joseph Emanuel does hereby, in consideration of the sum of five dollars to him in hand paid by Jacob Emanuel and William Sicher, the receipt of which is hereby acknowledged, by these presents remise, release and forever quitclaim unto the said Jacob Emanuel and William Sicher the undivided two-thirds of the said two and one-half feet of ground off of the west side of lot number twenty-eight, hereinbefore described, running south one hundred and eight feet to an alley. To have and to hold the said several parcels to said parties as hereinbefore express- - ed, and to the heirs and assigns of said respective parties forever. Said alleys (private) and said well to be kept in good order and free from any nuisance or nuisances by such parties using the same. In witness whereof the said parties have set their hands and seals to three parts hereof, the day and date hereinbefore written.

“Joseph Emanuel, (Seal)
“Jacob Emanuel, (Seal)
“William Sicher, (Seal)
“Attest: A. A. Haeussler.
“State of Missouri, county of St. Louis.
“Be it remembered that, on this 18th day of July, A. D. eighteen hundred and sixty-four, before the undersigned, a notary public within and for the county and state aforesaid, came Joseph Emanuel, Jacob Emanuel, and on the 30th day of July, A. D. 1864, came William Sieher, who are all three personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing as parties thereto, and they severally acknowledge the same to be their act and deed for the use and purpose therein expressed.
“In testimony whereof, I have hereunto set my hand and affixed my notarial seal the day and year last above written.
“Herman A. IIaeussler, Notary Public.
St. Louis Co., Mo.
(Copy of seal): “Herman A. IIaeussler, Notary Public, St. Louis, Mo. ,
“Piled and recorded October 27,1884, at 9:35 a. m.
“Trios. F. Farrelly, Recorder.”

Jacob Emanuel and Joseph Emanuel both died before the commencement of this suit, Joseph left surviving him his widow, Julia, .who is one of the plaintiffs in this case. Jacob died in 1882, leaving the following children: Joseph, Solomon, David, Aaron, and Johanna, the wife of William Sieher. By his will Jacob Emanuel devised all his property, including his lot known as lot 30 and his house thereon, to Joseph, Solomon, David, Lena the wife of his son Aaron, and Johanna his daughter, the wife of William Sieher. On the 6th of October, 1884, Joseph Emajruel conveyed his one-fifth interest in said lot to his brother Solomon, and on the 25th of October, 1884, David and his wife, and Johanna, and her husband Sieher, and Lena conveyed by deed their three undivided one-fifths of said lot to Solomon Emanuel. Afterwards on the first day of September, 1888, Solomon and his wife conveyed the whole of said lot by deed to Isadore Simon. On the 21st of November, 1891, Simon conveyed by deed said lot to David Rosentreter. On the 5th day of January, 1892, Rosentreter conveyed by deed to Thresa Lowag, and on the 22nd of December, 1898, Thresa Lowag conveyed by deed the said lot to the defendant, Mrs. Rambousek.

In the deed from Joseph Emanuel and Solomon Emanuel, of October 11,1884, acknowledged October 24, 1884, and recorded October 25, 1884, the warranty excepts “all claims .which said Joseph Emanuel and William Sicher, their heirs and assigns, may have to the right of way through said lot 30, and to the use of the well thereon.” The deed from David Emanuel, Johanna Sicher and Lena Emanuel to Solomon Emanuel, acknowledged October 15, 1884, and recorded October 25, 1884, recited that the said grantors acquired their interest in said lot by devise from Jacob Emanuel. Thereafter on the 27th of October, 1884, the agreement reserving the passageway was duly recorded. The deed from David Rosentreter to Thresa Lowag on January 5,1892, recites that it “is subject to an agreement dated July 18,1864, and recorded in book 333, page 336, ” and in the wárranty covenant the agreement is again excepted. The deed from Thresa Lowag to defendant, dated December 22, 1898, described the property as being the same acquired by the grantor from David Rosentreter by the deed last mentioned above, giving the book and page of record, and in the warranty clause excepts “existing agreements and easements.”

In 1864, the three owners, Sicher and Jacob and Joseph Emanuel, erected on' the three lots three dwelling-houses. The houses are united and present a solid front, unbroken save by the front door and windows in each. There is an ell extending from the rear of each and at the end on the west of the most westwardly house, which was owned by Jacob, there was left a strip of Jacob’s lot, two feet and ten and one-fourth inches, uncovered by the house, for a passageway, which leads from Park avenue, the street in front of said houses, to the yards in the rear of the houses. There was a like passageway on the east side of lot 30, the most eastwardly of said houses, of over two feet. The yard in the rear of each house was fenced off, and were each twenty-five feet wide, by an equal length, to a public alley. An examination of the houses with reference to the three lots, discloses that the east and west walls of the main part of Sicher’s house were nine-inch walls, and the end of the joists underlying the floors of the two houses to the east and west of his house extended into and are supported by said walls, and it is apparent that the said joists are rested on Sicher’s lot. The evidence also tended to show that the passageways on the east and west of the said three buildings had been continuously used in common by the owners of the said three houses from the time the buildings were erected until the defendant, a short time prior to the bringing of this suit, barred the gateway leading from Sicher’s yard into hers. There was evidence, also, showing that the defendant was familar with the property before she purchased it, having frequently visited her grantor, Mrs. Lowag, when the latter occupied it. A plat of the property in question was offered by the defendant, which shows that the alleyway on the east is two feet and ten and one-fourth inches in width, and the one on the west, two feet and three-eighth inches, and that the three houses, including the exterior walls, occupy an aggregate frontage of seventy-one feet and three-eighth inches, and that the two outside houses extend over plaintiff’s middle lot a few inches.

The cause was tried in the circuit court and the court found the issues for the plaintiffs, and decreed a reformation of the agreement so as to locate the passageways described in the writing on th'e west side of lot number 30, and on the east side of lot number 28, and directing defendant to remove all obstructions which she had placed across the gate in the fence separating, in the rear, lots 29 and 30, and restraining her from maintaining or erecting any obstruction interfering or tending to interfere with the right of plaintiffs, their heirs or assigns, to use the passageway located on the west side of lot 30, or from obstructing the gateway connecting the rear yards of lots 29 and 30.

During the trial the plaintiff William Sicher was offered as a witness to testify in his own behalf. The defendant objected on the ground that William Sicher was a party to the original contract, and as Jacob Emanuel, under whom defendant claims, was dead, William Sicher was incompetent to testify.

The foregoing is a sufficient statement of the facts necessary to an understanding of the case.

On this appeal the defendant urges that plaintiffs are estopped from having the agreement reformed and because plaintiffs have been guilty of laches. Error is also assigned in permitting Sicher, the plaintiff, to testify, and in admitting the statement made by defendant’s husband in her presence to Sicher.

I. At the very threshold, however, of an examination of the errors assigned, we are met with the fact that no exception was taken to the overruling of the motion for a new^ trial, and therefore this court is precluded from examining any exceptions taken by the plaintiff at the trial and which are now urged for grounds for reversal.

It has been firmly established that unless an exception be taken and preserved by bill of exceptions to the action of the circuit court in overruling a motion for a new trial, there is nothing before the Supreme Court for review, save and except the record proper. [State v. Marshall, 36 Mo. 400; Ross v. Railroad, 141 Mo. l. c. 395, and cases therein cited.] And this rule applies as well in cases in equity as in cases at law. [Madden’s Heirs v. Madden’s Heirs, 27 Mo. 544; Ryan v. Growney, 125 Mo. 474.] In view of the above rule, it is obvious that the objections now ur-ged to the competency of the evidence of William Sicher and Mrs. Schultz are not before us for review, as they were matters of exceptions arising on the trial.

As to the record proper, it is too clear for discussion that the bill on its face stated a good canse for relief in equity. Courts of equity have from time immemorial exercised power to reform written instruments so as to make them speak the real agreements made between the parties in cases in which by the mistake or misprision of the scrivener the writing fails to do so, and it will exercise this power not only as between the original parties but as to those claiming under them in privity, such as personal representatives, heirs, assigns, grantees, judgment creditors or purchasers from them with notice of the facts. [Sieberling v. Tipton, 113 Mo. 380; Hagman v. Shaffner, 88 Mo. 28; Martin v. Nixon, 92 Mo. 35.]

One who has notice of a fact which ought to have put him on inquiry, and which he might have discovered by using due diligence, cannot claim as a purchaser without notice.

As to the plea of laches upon which defendant relies, it is sufficient, to say that mere lapse of time does not act as a bar in cases of purely equitable jurisdiction. [Bollinger v. Chouteau, 20 Mo. 96; Epperson v. Epperson, 161 Mo. 577.]

Upon the case stated in the petition, it was one falling within the jurisdiction of the circuit court as a court of equity, and we discover nothing in the decree in excess of the jurisdiction of the court, and as we are precluded from inquiring into the weight of the evidence, the judgment must be and is affirmed.

Burgess, P. J., and Fox, J., concur.


author: BURGESS, P. J.

text:
    WRIGHT v. HINK et al., Appellants.
    Division Two
    January 31, 1906.
    1. NON-RESIDENTS: Process. In the absence of an allegation in the petition, and of an affidavit filed therewith or thereafter filed, that certain named defendants are non-residents, the court has no authority to issue a summons for them beyond its jurisdiction, and if issued and served it is a nullity.
    2. -: -: Minors: Guardian Ad Litem: Appearance. The appointment of a guardian ad litem for minor defendants who have not been served with process in the manner required by the statutes, whether residents or non-residents, and the filing of an answer for them by the guardian ad litem, gives the court no jurisdiction over them, and if they are necessary parties to the suit a judgment against them will be reversed, and the cause remanded, although both parties may ask the court to consider the case just as if all defendants had been properly served.
    Appeal from Cape Girardeau Circuit Court. — Hon. Henry C. Riley, Judge.
    Reversed and remanded.

      John A. Hope for appellants.
    There was no sufficient service of summons on Alex. Nunn. No affidavit, as required hy sections 582 and 575, . Revised Statutes 1899, was ever filed. Therefore, there was no authority for issuing the summons to the Illinois sheriff, and the service of the same on him, and all subsequent proceedings in the case, as to him, are nullities. He is a necessary party to this action, and even if the court did believe that plaintiff was entitled to the relief asked for in her petition, it could not properly grant such relief until after Alex. Nunn had been duly served with process and brought into the case. This error alone must result in reversal of the judgment. However, we are very anxious for this court to express its views on the merits of the controversy, believing that nnder the conceded facts and nnder the law applicable to the facts plaintiff has no valid claim to the land in question, and that appellants should be held to be the owners of the land free and clear of any lien or claim on the part of plaintiff arising out of the deed of trust executed by their father in 1885. While we think the case must necessarily be reversed on account of the failure to serve process on Alex. Nunn, we respectfully ask the court to indicate its views on the merits, in order that the title to the property may be settled as soon as possible.

      L. Caruthers for respondent.
    Several attempts to get service on Alex. Nunn, who is now of age, and was of the age of twenty-one when served, and who is one of the defendants in the case, were made before the sheriff of Union county, Illinois, made a sufficient return. The last was made on the 20th day of July, A. D. 1901, and the trial court held this to be a good service. However, we join in with appellants and ask this court to pass on the merits of the case. A reversal and retrial could in no way change the facts. Neither would a reversal give the appellants or their attorney any interest in this little piece of land.
   BURGESS, P. J.

— This is an action to cancel the satisfaction, entered of record, of a deed of trust, entered by the beneficiary on the deed records of Cape Girardeau county, and to vest in plaintiff and her heirs, title to a certain tract of land, described in the petition, lying and being in said county. There-was judgment for plaintiff, in accordance with the prayer of the petition, from which judgment defendants appeal.

The case is brought here under the provision of section 813, Revised Statutes 1899, by filing in this court a copy of the judgment in lieu of a. complete transcript. Appellants have also filed a printed abstract of the record, as provided by said section they might do.

While the judgment recites, and the record shows, that the defendants Alexander and Joel Nunn were minors at the time of the institution of the suit, and the court appointed a guardian ad litem for them, by whom they answered, it does not appear from the petition that they were minors, or, from the record that Joel Nunn was ever served with process, or, from any affidavit filed, that Alexander Nunn was a non-resident of this State, although several unsuccessful efforts were made by plaintiff to have him served with process in the State of Illinois. In the absence of an allegation in the petition, or an affidavit filed with it, or thereafter filed, that said Alexander Nunn was a non-resident of this State, there was no authority to issue a summons for him, beyond its limits, and the service of such summons, as to him. was a nullity. [Secs. 575, 582, R. S. 1899.] Until process was served upon Joel Nunn and Alexander Nunn, either personally, or constructively by publication, as provided by the statutes referred to, the court had no jurisdiction over them, and was without authority to appoint a guardian ad litem for them, and his appearance in the case, in this behalf, was of no binding force or effect upon them.

While we are requested by both parties to pass upon the case just as if all the defendants were properly and legally served with process, yet as Joel and Alexander Nunn are necessary parties to the suit, and as this court has no jurisdiction over them, whatever might be said as to them would be merely obiter, and we must decline to do so.

The judgment is reversed and the cause remanded, to be proceeded with in accordance with the views herein expressed.

All concur.


text:
    JOHN J. JOERGER et al. v. CHRISTINE JOERGER, Appellant.
    Division Two,
    January 31, 1906.
    1. ESTATE BY ENTIRETY. A deed to a husband and wife and the survivor of them creates an estate by the entirety.
    2. -: Divorce: Partition. A divorce of husband and wife destroys an estate by ,the entirety theretofore existing. between them, and, if in the decree the legal interst of the defendant is not awarded to the plaintiff, they are thereafter tenants in common. And being cotenants, either is entitled to partition, and if either dies then the devisees of the deceased one may maintain partition against the other, unless the other’s money paid for the property.
    ' 3. -: -: -: Resulting Trust: Character of Proof. In a partition suit brought by the husband against the wife, the burden is on her to show that property deeded to her and him and the survivor of them, which estate by the entirety was transmuted into a co-tenancy by a divorce in her favor, was paid for with her individual money; and unless the proof is clear and satisfactory on the point, he will be held to be the owner of an undivided half interest therein.
    Appeal from St. Louis City Circuit Court.— Eon. Warivick Eough, Judge.
    Affirmed.

      Geo. W. Lubke and Geo. W. Lubke, Jr., for appellant.
    (1) This being a suit for partition, and the answer of defendant having pleaded facts entitling her to equitable relief, this action is an equitable one and this court will review the whole record as if the suit had originated in this court. Sheridan v. Nation, 159 Mo. 27; Railroad v. Brandon, 81 Mo. App. 1; Robertson v. Shepherd, 165 Mo. 360; Caldwell v. Wright, 88 Mo. App. 604; Roth v. Wire Co., 94 Mo. App. 236. (2) The earnings of defendant and the profits of the business conducted by her after 1875 were her separate property and her husband could not acquire any interest therein unless she consented thereto in writing. R. S. 1899, sec. 4340; Rogers v. Bank, 69 Mo. 560; Broughton v. Brand, 94 Mo. 1691; Owings v. Wiggins, 133 Mo. 630; Alkire Grocer Co. v. Ballinger, 137 Mo. 369; Case v. Espenchied, 169' Mo. 215; Lilliard v. Wilson, 178 Mo. 145. And this is true notwithstanding the fact that the marriage between the parties was contracted prior to 1875. Winn v. Riley, 151 Mo. 61. (3) The purchase of real estate by plaintiff Anton Joerger, while the husband of defendant, with her earnings or the profits of her business, either in whole or in part, must be held to be a purchase for defendant in whole or pro tcmto notwithstanding she consented thereto, unless her consent be evidenced by a writing as required by the statute. Bowen v. Mc-Kean, 82 Mo. 594; Broughton v. Brand, 94 Mo. 169; McGuire v. Allen, 108 Mo. 403; Seay v. Hesse, 123 Mo. 450; Cooper v. Standley, 40 Mo. App. 38; McLeod v. Tenable, 163 Mo. 536. (4) In partition all the rights which the several co-tenants have against each other respecting the common property may be adjusted and one tenant credited with repairs and improvements and another charged with rents. Gunn v. Thurston, 130 Mo. 339; Holloway v. Holloway, 97 Mo. 629; Spitts v. Wells, 18 Mo. 468. (5) Even though the Natural Bridge road property was not the separate estate of defendant, she was entitled either to partition in kind so that the portion improved by her might be set out to her with the improvements and repairs, thereon, or she was entitled to contribution from plaintiff for the value of the improvements and repairs. Spitts v. Wells, 18 Mo. 468; Green v. Putnam, 1 Barb. 507; Hall v. Piddock, 21 N. J. Eq. 314; Brookfield v. Williams, 2 N. J. Eq. 341; Dougherty v. Crowell, 11 N. J. Eq. 203; Mahoney v. Mahoney, 65 111. 406; Martindale v.' Alexander, 26 Ind. 104; Freeman on Co-tenancy & Partition (2 Ed.), sec. 509. This is true in equity, though .not at law. McDearmon v. McClure, 31 Ark. 559; Williams v. Coombs, 88 Me. 183. But the repairs must be such as are absolutely necessary. Dech’s Appeal, 57 Pa. St. 472; Farrand v. Gleason, 56 Vt. 663; Fowler v. Fowler, 50 Conn. 256; Alexander v. Ellison, 79 Ky. 148; Denman v. Prince, 40 Barb. 217; Clark v. Plummer, 31 Wis. 442. (6) If plaintiffs were entitled to partition, there being no evidence that the property in question could not be partitioned in kind, but on the contrary that it was susceptible of such division, it was erroneous to order a sale of the property and division of the proceeds. Rhorer v. Brockhage, 15 Mo. App. 16; R. S. 1899, see. 4425.

      Bassieur, Sclmurmacher <& Bassieur and Henry Boemler for respondents.
   GANTT, J.

— This is a proceeding originally brought by Anton Joerger, Edward P. Luecking and H. J. Krembs against Mrs. Christine Joerger, for the partition of two pieces of real estate, to-wit: Lots ten and eleven of the subdivision by James B. Clay of lots one to five, in block 23 of Old Orchard tract and in block 4441 of the city of St. Louis, said lots having together a front of fifty feet, on the south side of Natural Bridge road, by a depth, to an alley southwardly, of one hundred and seventy-nine feet and six inches, and bounded west by lot nine, north by Natural Bridge road, east by lot thirteen of said block, and south by said alley, conveyed to said Joerger by deed dated the 18th day of September, 1879, recorded in book 617, page 215, in the recorder’s office in the city of St. Louis; and a tract of land situated in the county of Ste. Genevieve in the State of Missouri, all of the north half of the southwest quarter of section two, township thirty-eight, range six, east, and the north part of the south half of said southwest quarter of section two, township thirty-eight, range six, east, the last-described land containing about forty-five acres, and containing in the aggregate one hundred and twenty-five acres, more or less.

Judgment for partition and an order of sale of said land was rendered at the February term, 1903, of the circuit court of the city of St. Louis. The defendant filed her motions for new trial and in arrest of judgment, which were by the court overruled, and defendant was granted an appeal to this court.

During the pendency of this appeal in this court ■ and on the 8th day of May, 1904, Anton Joerger, the husband, departed this life testate, and by his last will and testament devised his interest in said estate to John A. Joerger, Paul Joerger, Elizabeth Joerger, Lena Benson and Christine Hammond, and suggestion of the death of the said Anton Joerger was duly made and scire facias ordered to said devisees to show cause why they should not be substituted as plaintiffs in the place and stead of said Anton Joerger, which said scire facias was duly issued and served upon the said devisees, in January and February, 1905, commanding them to appear in this court on the first day of the April term of this court for the year 1905. And no cause to the contrary having been shown, it was ordered that this cause stand revived in their names, together with the plaintiffs Luecking and Krembs.

The interest of the said Krembs results from the giving of a note by the said Anton. Joerger, on may 24, 1900, to the said Krembs, for the sum of $550, payable in one year thereafter, and the execution and delivery of a déed of trust to the plaintiff Edward P. Luecking as trustee on the undivided one-half interest of the said Anton Joerger in said real estate and lots on the Natural Bridge road as above described, tbe same not having been satisfied when this action was commenced nor at tbe date of tbe judgment. Tbe answer of Mrs. Christine Joerger admitted tbe marriage of Anton Joerger and herself and her divorce from tbe plaintiff on tbe 25th of January, 1900, and that tbe description of tbe property mentioned in the. petition was correctly set forth, and then denied all tbe other ¡allegations of tbe petition. Tbe answer then set up by way of cross-bill that all tbe real estate described in tbe petition was tbe sole and separate estate of tbe defendant Christine Joerger, purchased with her own money, and that she bad expended large sums of money, $1,000, improving, repairing and maintaining tbe same, and that whatever rights tbe plaintiffs, Edward P. Luecking and H. J. Krembs, bad acquired in tbe property, they bad obtained subsequently to tbe institution of this suit and tbe filing of tbe defendant’s answer herein, and with full knowledge of defendant’s rights in tbe premises, and prayed a decree that tbe property described should be adjudged tbe sole and separate estate of tbe defendánt Christine Joerger, and in tbe event tbe same should not be found to be her separate estate, that she should have a lien on tbe said property superior to tbe plaintiffs for tbe sums expended by her for improvements and repairs and such additional relief as she might merit. Tbe reply was a general denial of tbe new matter set up in the answer.

Tbe cause was referred by consent of parties, to George F. Beck, Esq., a member of tbe bar, to be tried, who beard tbe evidence and on May 9, 1901, filed bis report therein with a transcript of tbe evidence and testimony taken before him. Tbe evidence tended to prove without contradiction that Anton Joerger and Christine Joerger, tbe defendant, were married in Cincinnati, Ohio, in 1854.

Tbe plaintiff offered and read in evidence a deed from Pattie D. McCowan and B. H. McCowan, her bus-band, of Jefferson county, Kentucky, dated September 18, 1879, to Anton Joerger and Christine Joerger, recorded September 30, 1879, in book 617, page 215, of the St. Louis recorder’s office, which was an ordinary warranty deed and conveyed the property first described in the petition, located in the city of St. Louis, on the Natural Bridge road. The habendum clause of the deed is as follows: “To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances, immunities and improvements thereto belonging or in anywise appertaining unto the said parties of the second part, and to the survivor of them and to the heirs and assigns of such survivor.” Plaintiff also offered and read in evidence, a deed from August Kreiger to Anton Joerger and Catherine Joerger, husband and wife, dated August 28, 1890', recorded in book 45 at page 217 of the recorder’s office of Ste. Genevieve county, on August 30, 1890, conveying the property secondly described in the said petition and situated in said Ste. Genevieve county.. This deed is also a general warranty deed and the habendum clause is as follows: “To have and to hold the same, together with all the rights, immunities, privileges and appurtenances to the same belonging, or in anywise appertaining, unto the said parties of the second part and to the survivor of them and to their heirs and assigns forever.” Plaintiff also read in evidence a deed of trust made by Anton Joerger, March 24, 1900, and duly recorded in the city of St. Louis, conveying an undivided one-half interest in the property above described on the Natural Bridge road in the city of St. Louis, to the plaintiff Edward Luecking in trust to secure to the plaintiff H. J. Krembs, the payment of a principal note for $550, one year after date, and two interest notes each for $16.50 payable in six and twelve months after date, respectively. Plaintiff admitted that H. J. Krembs knew that this partition suit was pending when he loaned the money secured by the deed of trust offered’ in evidence. The evidence also disclosed that there were five children horn of the marriage between Anton and Christine Joerger.

The warranty deeds offered in evidence to Anton Joerger and Christine, his wife, created an estate in them by entireties, in both tracts of land sought to be partitioned in: this proceeding. By the divorce in 1900, the tenancy by entirety was destroyed, and after that date they became tenants in common in said real estate. [Russell v. Russell, 122 Mo. 235; Freeman on Cotenancy and Partition (Ed. 1874), sec. 444.]

Prima facie, then, plaintiff was entitled to a partition as prayed, and the burden rested on the defendant Mrs. Joerger to establish that she was the sole owner in equity of both the said tracts, by reason of having furnished the purchase money therefor. The property located on the Natural Bridge road was acquired in 1879 and the title remained as acquired up to the present time with the exception of the deed of trust placed upon it by Anton Joerger in favor of H. J. Krembs. No effort was made by the defendant, when she obtained the divorce from her husband, Anton Joerger, to have his legal interest in this property divested and awarded to her. In her petition for a divorce, among other allegations, the defendant alleged that her husband, Anton Joerger, was the owner of real and personal property of great value and prayed for an allowance for alimony, and was awarded one hundred dollars alimony. The evidence tends to show on the part of the plaintiff that the $550 borrowed from Krembs, was obtained for the purpose of paying the court costs, taxes, the one hundred dollars alimony, and tji© defendant’s attorney fees. The testimony in regard to the furnishing of the money with which the Natural Bridge road property was paid for was irreconcilably conflicting. It appears that Anton Joerger when he was married in 1854 was a charcoal peddler in Cincinnati, but quit that business sometime before he left that city; that he and his wife removed to St. Louis in 1857. He testified that he saved money selling charcoal in Cincinnati, that while he drank some he was never a hard drinker. In the fall of 186.1, he enlisted in the Federal army, and was discharged in 1862 on account of disabilities. He has received pensions, at the rate of $18 at first, and then $24, and it was finally increased until he received $72 per month. At one time he got $1,800 back pay.

'John Schmidt testified that he had known Anton Joerger and his wife for twenty years, that sometimes about the year 1880, as well as he could recollect; he loaned Anton Joerger $400 and that Anton repaid it in a little over a year after that time; that he thinks Anton purchased improved property with the money he loaned him. Witness had a poultry stand at Biddle Market, and Mrs. Joerger had a stand at the same market, she sold flowers and things that they raised; he saw her husband on the market every week; he came in with the wagon; both he and his wife sold things at the market; he never saw Joerger drunk as long as he stayed on the market; after Mrs. Joérger left the market, she had a dry goods store on the Natural Bridge road. There was much testimony to the effect that Mrs. Joerger was an industrious and energetic business woman, she sold flowers and vegetables, but we agree with the referee, after a careful reading of this evidence, that the proof does n'ot establish that Mrs. Joerger carried on this business and earned all the profits arising from it by her own unaided efforts and was entitled to it as her sole and separate property. The evidence tends to show that prior to the war, at least, and for some time afterwards, she was assisted by her husband find their children. The evidence shows that Anton Joerger, in 1878, received $600 from a policy of fire insurance, which he had on certain premises leased by him, and this money was used in purchasing real estate which was afterwards sold to one Klockman, and this money, derived from the sale of the lots to Klockman, was used in 1879 to buy the lots on the Natural Bridge road. With respect to the farm in Ste. Genevieve county the testimony tends, to show that Anton paid all of the purchase money, except, perhaps, twenty-five dollars, and the evidence also preponderates that Anton furnished the means for making the improvements on the farm. With respect to the repairs made on the Natural Bridge road property the evidence does show that the defendant paid for some of these repairs out of her own property prior to the date of her divorce from the plaintiff, and without any request from him and without his assent.

As we have said, the testimony was very conflicting on this question as to the furnishing of the money. It was altogether oral. These witnesses testified before the referee, who saw them and had an opportunity to, notice their demeanor and manner of testifying and was in a much better position to judge of their credibility than we are. There are no circumstances of such overweening significance as to enable us to say that Mrs. Joerger and her witnesses should be credited and approved, and those of her husband should be disregarded and rejected. The testimony tends to show a very bitter feeling between the parties, but.we have been unable to find that clear and satisfactory proof which ought to exist to justify us in setting aside a legal title of over twenty years in the one instance, and ten years in the other. The burden was on the defendant to establish that the deeds made to her and her husband of these lands were in truth and in fact purchased entirely with her own means. We agree with the referee that she has not sustained this burden and the judgment of the circuit court on this branch of the case was unquestionably right.

As to whether partition in kind can be made without resorting to a sale of the premises, we think the character of the property is such that it is not susceptible of an equal division in kind, especially since the plaintiff Anton has died since the judgment was rendered in the circuit court and his interest has devolved upon his five- children, and this part of the decree is also affirmed.

It follows, of course, that the deed of trust in favor of Krembs is a good and valid lien on the undivided interest of Anton Joerger in the lands in suit, and as against the defendant Christine Joerger.

Our conclusion, then, is that the judgment and decree of the circuit court should be and is in all things affirmed.

Burgess, P. J., and Fox, J., concur.


text:
    HUNTER, Appellant, v. PINNELL.
    Division Two,
    January 31, 1906.
    1. LIMITATIONS: Swamp Land: Adverse Possession. The statute (see. 4270, R. S. 1899), passed in 1866 and providing that “nothing contained in. any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public or charitable use,” etc., does not apply to swamp lands patented by the State to the county prior to the date of its enactment, and does not suspend the ten-year Statute of Limitations as to such land, whether the record title remains in the county or not.
    2. -: -: -: Continuity. Temporary absence from land, after actual and open adverse possession taken and after the Statute of Limitation has begun to run, does not have the effect of breaking the continuity of the possession.
    Appeal from New Madrid Circuit Court. — Hon. Henry G. Riley, Judge.
    Affirmed.

      Geo. H. Traylor for appellant.
    (1) Defendant failed to show adverse possession for even ten years. R. S. 1899, see. 650; Wilson v. Purl, 133 Mo. 367; Ivy v. Yancy, 129 Mo. 501; Adkins v. Tomlinson, 121 Mo. 487. (2) The court erred in refusing to give plaintiff’s third instruction, asked. The land sued for was swamp and overflowed land of the county of New Madrid, and was as such a trust fund held for the benefit of the school fund of the State and county, and the Statute of Limitations did not and does not run against said land in favor of defendant or any squatter or occupant under whom defendant claims, nor can the doctrine of laches be invoked in defendant’s favor. State ex rel. v. Crumb, 157 Mo. 545. This case has been partially overruled, but not on any of the points raised in the case at bar. Himmelberger v. Stoddard County, 173 Mo. 421. The school children ought not to lose their interest in this fund just because the county court ' happens to sit idly by and allow squatters to take possession of the land that they are interested in without paying one cent therefor into the public school fund, which would be the case in the case at bar should the judgment of the circuit court be allowed to stand.

      Lawrence W. Fisher for respondent.
    (1) Section 4270, Revised Statutes 1899, exempting the Statute of Limitations from running against certain lands held for educational, charitable and public purposes did not become a law until August 1,1866, and where the right of entry accrued previous to that date, limitations ran against lands mentioned in said section. School Directors v. Groerges, 50 Mo. 194; McCartney v. Alderson, 54 Mo. 320; Ins. Co. v. St. Louis, 98 Mo. 422; Mississippi County v. Vowels, 101 Mo. 225; Hendrickson v. Grrable, 157 Mo. 42; Dice v. Hamilton, 178 Mo. 81; Palmer v. Jones, 85 S. W. 1114. (2) The question of adverse possession of the land involved in this suit was submitted to the court, and the court, as trier of the facts, found for the respondent. There was ample testimony to support the finding; in fact, there could have been no other finding made. The appellate courts will not disturb' the finding of the trial court on a question of fact, unless it appears that the finding was the result of prejudice, passion, etc. LeSieur v. Zimmerman, 88 Mo. App. 662; Kittredge v. L. & B. Association, 103 Mo. App. 361; Franks v. St. Louis, 110 Mo. 516; Gannon v. Laclede, 145 Mo. 502; Mathewson v. Kilburn, 183 Mo. 110. (3) The respondent and those under whom he claims had been in actual, open, adverse, hostile, exclusive and continuous possession of the eighty acres in controversy since 1859, under color of title. This gives them title by adverse possession to the entire eighty acres in the tract. Land Co. v. Hayes, 105 Mo. 143; Pharris v. Jones, 122 Mo. 125; Roecker v. Haperla, 138 Mo. 33; Heineman v. Bennett, 144 Mo. 113; McVey v. Carr, 159 Mo. 648. (4) The mere leaving the premises after the destruction of improvements, or on account of any public calamity, high water, etc., animo revertendi,*is not an abandonment. There must be an intention not to return before the possession will be broken. Fugate v. Price, 49 Mo. 441; Crispen v. Hannavan, 50 Mo. 537; Hamilton v. Boggess, 63 Mo. 231; Bartlett v. 0'’Donogkue, 72 Mo. •563; "Washburn on Real Estate, p. 341. (5) The swamp lands do not belong to the school fund until they are sold, then the net proceeds become a part of the school fund of the county in which same are located. Secs. 8195-8199, R. S. 1899. .It was only necessary, in order to show title by adverse possession to the land in controversy, to prove adverse possession for ten years next before the date of the filing this petition. Sec. 4262, R. S. 1899; Palmer v. Jones, 85 S. W. 1114.
   BURGESS, P. J.

— This is an action by plaintiff-appellant against the defendant, both of whom claim title to the tract of land described in the petition, to ascertain and determine the estate, title and interest of the parties, respectively, in such real estate. The suit is prosecuted under section 650, Bevised Statutes" 1899. Both parties claim title in fee to said real estate, the plaintiff by derivative title from the Government,' ánd the defendant by reason of the ten-year Statute of" Limitations, under color of title. The petition is in due form. The answer denies plaintiff’s title to the land,' pleads the Statute of Limitations, and prays that defendant may be decreed the owner of the land, and that all other claimants claiming under and by virtue of any patent from New Madrid county, Missouri, issued since' 1865, be declared forever barred from setting up or maintaining any claim in deed to said premises, etc.

The trial before the court resulted in a judgment’ and decree in favor of defendant, as prayed for in his. answer. Plaintiff appeals.

The land in question is what is known as swamp' land, and was patented to New Madrid county by the' State of Missouri, June 15, 1857, and ‘by New Madrid county to the plaintiff, Lee Hunter, on the 8th day of October, 1901. Defendant claims color of title to the-h*id, and title under the Statute of Limitations, and such color by reason of mesne conveyance from Albert Haynes and wife, who on August 15, 1856, conveyed, by warranty deed, said land to E. A. Lewis, and those claiming under him as follows: On the 28th day of October, 1856, said E. A. Lewis and wife conveyed said land, by warranty deed, to L. L. Phillips. .Said L. L^ Phillips and wife, on November 4, 1891, conveyéd the; same land, by warranty deed, to Parcillia Murphy, and she, on November 6, 1901, conveyed it, by quit-claim deed, to the defendant, W. W. Pinnell.

The evidence adduced by defendant showed'that, at the commencement of the suit, he was, and those under whom he claimed title were, in actual, open, notorious, continuous and adverse possession of the land, and claiming title thereto, for more than ten years.

Plaintiff concedes that section 4270, Bevised Statutes 1899, which provides that “nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated tq any public, pious or charitable use, or to any lands belonging to this State,” did not become a law until August 1, 1866, and where the right of entry accrued previous to that date the Statute of Limitations ran against lands mentioned in said section. The record shows that the land in question was patented to New Madrid county by the State of Missouri, June 15,1857, and that it has been in the actual, open, notorious, continuous, exclusive and adverse possession of defendant, and those under whom he claims title, ever since 1860. L. L. Phillips was then, through his tenants, in possession of the land at the time, if not before, and the Statute of. Limitations having begun to run in his favor, the possession of the land would not seem to have been abandoned by any of the persons under whom defendant claims title. Absence from the land temporarily, and without any intention of abandoning it for good, did not have the effect of breaking the continuity of possession. Moreover, this court has recently held that the statute quoted did not prevent section one, limiting actions to recover lands to ten years, from applying to swamp lands patented by the State to a county, while held and owned by such county when possession was taken before August 1, 1866. [Palmer v. Jones, 188 Mo. 163, and authorities cited.] It follows that plaintiff’s cause of action, if any he had, was clearly barred by the Statute of Limitation.

The judgment is for the right party, and should be affirmed. It is so ordered.

All concur.