text:
    WESTERN ASSURANCE COMPANY v. JAMES T. WALDEN et al., Appellants.
    Division One,
    November 29, 1911.
    1. EVIDENCE: Parol: Fact Established by Documentary. Where the facts which defendant offered to prove by parol testimony had already been indisputably established by competent documentary evidence offered by plaintiff, it was not error to exclude the parol proof, even though it were competent. Where the transcript of the proceedings in garnishment of a foreign court affirmatively shows that defendants at bar were nonresidents of the foreign State and that thereupon an order of publication was obtained and published, it is not error to refuse to permit defendants to show by parol testimony that they were not personally served in that garnishment proceedings.
    2. -: Judgment of Foreign Court: Full Faith and Credit. The transcript of the judgment and proceedings of a court of a foreign State, in favor of another plaintiff against the defendants at bar, showing that the court in which the cause was tried was a court of record, had a judge, a clerk and a seal, and duly authenticated according to the act of Congress governing such matters, is properly admitted in evidence, and from such a showing the law presumes that the foreign court was a court of general jurisdiction and had jurisdiction of the subject-matter and - of the parties, and in the absence of proof to the contrary such presumption is conclusive. But the legal effect of such a judgment upon the matter in suit, like the legal effect of other competent evidence, is’ a question for adjudication.
    3. -: -: Attachment: Obtained by Publication: Personal Service on Garnishee: Full Faith and Credit. A judgment in personam against a resident of this State rendered by a circuit court of Illinois, upon a mere publication, without service of process or entry of appearance, is absolutely void; but a judgment rendered upon such a service, where property is attached in the hands of persons within the jurisdiction of the court, who have been personally served, is valid and binding against the non-resident defendant served only by publication, to the extent of the property attached, or money and effects garnished in the hands of such personally served garnishee. Where defendants, residents of this State, were duly sued in attachment by publication by their creditor in Illinois, in which suit the plaintiff at bar, an insurance company, was summoned as garnishee; by personal service, to answer for the money it owed defendants on an' insurance policy,- which had been adjusted but not paid before that suit was instituted, a judgment there rendered against said insurance company was valid and binding upon defendants, to the extent of the money garnished in the hands of the insurance company; and that judgment is entitled to full faith and credit in the courts of this State, when a transcript thereof, duly authenticated according to the act of Congress, is introduced in evidence in the suit, by the insurance company against defendants, on an indemnifying bond.
    4. BOND: Consideration: Insurance Company: Garnishee. A bond •given to indemnify plaintiff against loss showing that plaintiff, an insurance company, in consideration of the execution of the bond. by defendants, paid an insurance policy to them, expresses a consideration; and where plaintiff paid the face value of the policy to defendants (the insured) and, as garnishee; also, to their attaching creditors, it is entitled to recover by suit on the bond.
    Appeal from Jasper Circuit Court. — Ron. Roiuard Gray, Judge.
    Affirmed.

      R. W. Gurrey for appellants.
    (1) “Judgment or decree of a sister State against nonresident rendered in a suit in which the defendant did not appear and upon whom there was no personal service of process cannot he used as evidence for any purpose outside of the State in which the suit was brought.” 7 Ency. Ev., p. 840. (2) “The full faith and credit clause of the Constitution of the United States does not apply to judgment in rem.” Reno on Nonresidents, secs. 188, 197, 200’, 201; McCormick v. Elliott, 43 ’Fed. 469-473; Freeman v. Alderson, 119 U. S. 185; Elliott v. McCormick, 10 N. E. 709; Need-ham v. Thayer, 18 N. E. 429; Cole v. Cunningham, 133' U. S. 107; St. Clair ■ v. Cox, 106 U. S. 350; G-reenleaf on Evidence (18 Ed.), sec. 540; Smith v. McCutcheon, 38 Mo. 415; Abbott v. Shepherd, 44 Mo. 273; C'rimm v. Crimm, 162 Mo. 544; "Wilson v. Railroad, 108 Mo. 599. (3) The Arkansas Mining Company, plaintiff in this Illinois proceeding, Walden & Tarr, defendant in that proceeding, and the plaintiff in this case were all nonresidents of the State of Illinois; and there was no service on these defendants or any one of them. In snch case the Illinois proceeding is null and void and should not have been received in evidence. The proceeding did not garnish the debt, which prior to that date had been paid to the creditor of the plaintiff company. Reimur v. Mfg. Co., 70 Fed. 573; Bullard & Hoagland v. Chaffie, 51 L. R. A. (Neb.) 715; Louisville, etc. Co. v. Nash, 41 L. R. A. (Ala.) 331. (4) The plaintiff being a Toronto, Canada, corporation, the debt which it, by virtue of its license to do business in this State, owed to citizens of this State could not be by it owing in Illinois, where, so far as the record shows, it was not licensed to do business. Swedish, Etc. Co. v. Bleecker, 72 Minn. 383; Torrille v. Railroad, 148 Mo. 621. (5) The court refused to permit the defendants, Walden & Tarr, the principals in the bond, to show they owed the plaintiff nothing. It was the garnishee’s duty to make this defense for its own protection. This error ought to reverse the case. Con-nor v. Reaver, 103 N. Y. 527; Railroad v. News Co., 151 Mo. 390. (6) The sureties are favorites of the law. The condition in the bond, to “defend, keep harmless,” etc., does not bind the sureties to either defend or keep harmless from proceedings in courts outside the State of Missouri, nor any suit not intended to enforce a then existing right to said insurance fund. (7) The plaintiff had paid its debt to the defendants, Walden & Tarr, before the beginning of this attachment in that State. This was a perfect defense, which it was the plaintiff’s duty to plead and prove. Mercantile Co. v. Betties, 58 N. A. 384; Smith v. McCutchen, 38 Mo. 416; Drake on Attachments, sec. 695; Railroad v. Lake, 32 N. E. 590’; Railroad v. Parish, 33 N. E. 122; Railroad v. Creamer, 33 N. E. 238; Hendrix v. Hendrix, 103 Mo. App. 40. (8) Notice of garnishment served on plaintiff in Illinois is not judicial process. Todd v. Railroad, 33 Mo. App. 110; Wile v. Cohn, 631 Fed. 7591. And copy of the notice and return appearing in the Illinois record does not prove that any funds were attached in plaintiff’s hands. (9). The plaintiff’s petition states no cause of action on the bond sued on against the defendants, for the reason that it appears from the face of the petition that there was no consideration for the giving of the bond by the defendants to the plaintiff. A contract entered into with a party to induce him to do what he had previously agreed to do, or to pay money which was admitted to be due, is without consideration. Ling-fielder v. Wainwright Brewery C'o., 103 Mo. 578; Wear Bros. v. Smeltzer, 92 Mo. App. 314; Wideman v. Brown, 33 Mich. 241; Railroad v. Morley, 45 Mo. App’. 304; Swaggard v. Hancock, 25 Mo. App. 597. (10') The assumption of threatened danger or liability, which has no foundation in law or in fact, is not sufficient consideration for a promise upon which an action can be maintained. Cabot v. Haskins, 3 Pick. (Mass.) 83.

      Mclntire & Scott and Fyke & Snider for respondent.
   WOODSON, J.

The plaintiff, the Western Assurance Company, was duly incorporated under the laws of Toronto, Canada, and at all the times hereinafter mentioned was lawfully engaged in the business of fire insurance in the State of Missouri and elsewhere.

The defendant Webb City Lumber Company was duly incorporated under the laws of this State, and engaged in the lumber business.

The defendant Webb City Iron Works was duly incorporated under the laws of this State, and engaged in the manufacture and sale of iron and the products ■thereof.

The -defendants Walden and Tarr were a copartnership engaged in the contracting business at Webb City, Missouri.

On the 17th day of January, 1900', the plaintiff ■issued to the defendants Walden & Tarr, its policy of insurance, securing certain buildings and machinery erected by them for the Arkansas Mining Company, .near Webb City, Missouri, against loss by fire in the sum of $1000 for a period of one year. Shortly before March 22, 1900, the property so insured burned down; and on or about that date the loss was adjusted at -$1000.

Shortly before the adjustment, the Arkansas Mining Company and one S. P. Danglade notified the plaintiff, the insurance company, that they had some kind of a claim or lien on the insurance money, and for it not to pay the same to Walden & Tarr, but the nature of said claim or lien was not stated. Thereupon, the insurance company declined to pay the money to Walden & Tarr unless they would indemnify it against all claims which have or may be hereafter made against it, in connection with said policy or the moneys payable thereunder, by said Arkansas Mining Company or Langlade, or by any other person, etc.

On said 22nd day of March, 1900, the bond sued on was signed and transmitted to the adjuster of the insurance company at St. Louis. At that time such a bond required a revenue stamp, and upon its receipt the adjuster noticed its absence and returned it to the attorneys of the obligors to be stamped, which was done on March 27, 1900, and remailed by them to said adjuster in St. Louis.

Said bond (formal parts omitted) was as follows :

“Know All Men by These Presents, That we James T. Walden and Thomas Tarr, both of Webb City in Jasper county in the State of Missouri, manufacturers, as principals, and J. A. Bowman, Webb City Lumber Co.-, by J. A. Bowman, Mgr., Webb City Iron Works by Geo. W. Wright, Mgr., and George W. Wright, of 'Webb City, in the county of Jasper, State of Missouri, as sureties, are jointly and severally held and firmly bound to the Western Assurance Company of Toronto, Canada, in the sum of fifteen hundred dollars to be paid to the said Western Assurance- Company or to their successors or assigns, for which payment well and truly to be made we bind ourselves, us and each of us, our- and each of our heirs, executors and administrators, firmly by these presents.
“Signed with our seals and dated this 22nd day of March, 1900.
“Whereas the Western Assurance Company of Toronto, through its agency at the said Webb City, did issue to the said Walden & Tarr, their policy of insurance number 1,659,483, on the 17th day of January, 1900, for the sum of one thousand dollars covering the property in the said policy mentioned against loss by fire.
“And whereas, a loss has occurred under the said policy, which loss has been adjusted between the assured and the company at the sum of one thousand dollars, and the said The Western Assurance Company is about to pay to the said Walden & Tarr the said sum in full satisfaction of the claim under the said policy.
“And whereas, certain persons and corporations claim to be the creditors of the said Walden & Tarr and whereas the Arkansas Mining Company and P. EL Danglade jointly and singly have served notice on the said Western Assurance Company not to pay the amount of the said loss to the said Walden & Tarr and have served notice that the said Arkansas Mining-Company and P. EL Danglade jointly or severally claim to have some right or lien in. or on tire said insurance money payable to the said Walden & Tarr,
“And whereas, the said Western Assurance Company has this day paid to the said Walden & Tarr the said sum of one thousand dollars in full satisfaction and discharge of all claims under or by virtue of the said policy.
“Now, Therefore the condition of this obligation is such that if the above bounded obligors or any of them or their heirs, executors or administrators or any of them do'and shall from time to time and at all times hereafter save, defend, keep harmless and indemnify the said The Western Assurance Company, their successors or assigns from' and against all or any claim or claims which has, have or may be hereafter made against the said Western Assurance Company under or in connection with the said policy or any of the moneys payable thereunder by the said Arkansas Mining Company or either of them or any other person or persons whomsoever and from any claim which has or may be made in favor of any person or corporation under or by reason of the Bankrupt Law in connection with the payment of the said sum to the said Walden & Tarr and from all costs, charges,, damages and expenses that shall or may happen or arise from any such claim or claims made or to be made in connection with the said policy and the money payable and paid thereunder, then this obligation shall be void, but otherwise shall be and remain in full force,, virtue and effect.”

Then follow the signatures of the principals and their sureties.

On March 28, 1900, the day after the bond had been remailed to the adjuster in St. Louis, an attachment suit was brought in the circuit court of Cook county, Illinois, a court of record, by the Arkansas Mining Company against Walden & Tarr to recover $2500. They were duly served by publication, and on the same day a writ of garnishment was served on the insurance company, which • was doing business there. In due time the garnishee filed answer.' Subsequently a trial was had which resulted in a judgment in favor of the Arkansas Mining Company for the sum of $1000 against the insurance company on account of the moneys alleged to be due "Walden & Tarr, arising out of said policy of insurance. The insurance company was compelled to pay and did pay that judgment.

Notwithstanding the pendency of *said attachment-suit, counsel for Walden & Tarr insisted that the insurance company pay to their clients the $1000' due under the policy, assuring it all the while that the garnishment proceedings could not be successfully maintained, and promised the insurance company that they would deal fairly with it.

On April 12th, prior to the rendition and payment of the Illinois judgment, the insurance company paid Walden & Tarr the $1000'. Upon demand by the insurance company upon Walden & Tarr to reimburse it for the sum paid under the Illinois judgment, they refused; and thereupon it brought this suit. A trial was had and the plaintiff recovered judgment against the defendants on said bond for the sum of $1283.25. From, that judgment the defendants appealed to this court.

Counsel for appellants assign the following errors :

The court erred:

“1st. In the admission of improper .and irrelevant evidence.
“2nd. In overruling defendant’s objection to the introduction of the Illinois record.
“3rd. In refusing to give plaintiff’s peremptory declaration of law and instruction to find for the defendant.
“4th. In refusing, to give instructions 1, 2, 3, 4, 5, 6 and 7 and also instruction 1 asked by the defendant.
“5th. In holding that the Illinois proceedings are entitled to full faith and credit.”

The instructions asked by counsel for appellants and refused by the court were as follows:

“1. The court declares the law to be that under the pleadings and evidence in this case the finding and judgment should be in favor of the defendants.
“2. The court declares the law to be that if the court, sitting as a jury, finds from the evidence that the Arkansas Mining Company was a corporation organized under the laws of Missouri and that the iia.bility of the insurance policy described in plaintiff’s petition and in the sum sued on was payable in the State of Missouri, and should further find that the defendants, Walden & Tarr, were, at the time of the Illinois garnishment proceeding, citizens and residents of the State of Missouri, and that neither said Walden nor said Tarr were personally served in said garnishment proceedings, then, and in such event, the finding must be for the defendants and against the plaintiff.
“3. The court declares the law to be that plaintiff company being a corporation of Canada, if the court shall find that the Arkansas Mining Company, plaintiff in the Illinois proceedings, was a corporation of Missouri, and that defendants Walden & Tarr were, at the time of said garnishment proceedings, citizens and residents of Missouri and were not personally served in said Illinois proceedings, and that the obligation arising to said Walden and Tarr on the insurance policy described in the bond sued on, was a contract entered into in the State of Missouri and payable in the State of Missouri, then plaintiff was not subject to garnishment in the State of Illinois, on said proceedings, said obligation is void and plaintiff cannot recover in said action.
“4. The court declares the law to be that if de-. fendants Walden and Tarr were not served in the Illinois proceedings and did not appear in said action and were, at the time of said garnishment proceedings, citizens and residents of Missouri, and'if the obligation of plaintiff company on the insurance policy described in the bond sued on, evidenced a contract of insurance entered into in the State of Missouri and that the obligation of the plaintiff to said Walden and Tarr on said insurance policy did not arise out of any contract entered into in the State of Illinois, then the finding must be for the defendants and against the plaintiff.
“5. The court declares the law to be that by the terms of the bond sued on in this case the obligor agreed to indemnify the plaintiff company against loss by reason of any claim which should be made to the money due the defendants Walden and Tarr, on the contract of insurance evidenced by the policy of insurance issued by the plaintiff corporation to the said defendants, Walden and Tarr, and that said contract of indemnity so evidenced by the said bond does not obligate the said defendants, Walden and Tarr, to indemnify the said insurance company against loss by reason of any suit which might be brought against the said insurance company by the Arkansas Mining Company, unless 'such suit was for the purpose of enforcing a specific lien on the money due the defendants, Walden and Tarr, from the said plaintiff company, and, if the court finds from the evidence in this case that the garnishment proceedings brought in the State of Illinois, the record of which has been introduced in evidence in this case, was not a proceeding to enforce any specific lien, but was an action of debt, and should further find that no proceeding was brought in the State of Illinois to enforce any lien on the said fund claimed by the Arkansas Mining Company, then, and in such event, the finding must be for the defendants and against the plaintiff.
“6. The court further declares the law to be that the judgment in the case of the Arkansas Mining Company, plaintiff, vs. Walden and Tarr, defendants, in the circuit court of Cook county, Illinois, shown by the transcript offered in evidence by the plaintiff in this case, is void for want of jurisdiction of said court over the parties thereto and for want of jurisdiction over the subject-matter of said suit, and the said pretended judgment shown by said suit, and the said pretended judgment shown by said transcript rendered in said court against the plaintiff herein as garnishee in said cause is also void for want of jurisdiction of said court over the parties thereto and for want of jurisdiction of said court over the debt therein sought to be impounded in said cause, and the said pretended judgment was rendered without due process of law and in violation of article 4 of the amendments to the Constitution of the United States and in violation of section 30 of article 2 of the Constitution of the State of Missouri, and that to enforce the said judgment would be depriving the defendants of their property without due process of law.
“7. The court further declares the law to be that if it finds from the evidence that Arkansas Mining-Company and the defendants, Walden and Tarr, were nonresidents of the State of Illinois, and that the said Walden and Tarr were not personally served with process in the State of Illinois and did not appear to the action in said court; and if the court further finds that the plaintiff herein, garnishee in said proceedings in said Cook County Circuit Court, was organized and existing under the laws of the Dominion of Canada and was not a citizen or resident of the State of Illinois, but that the said company kept an office in said Cook county, Illinois, for the transaction of business, then the debt sought to be impounded in said proceedings had its situs in the residence and domicile of the corporation in Canada and not in C'ook county, Illinois, and the pretended service of garnishment shown in the transcript offered in evidence by the plaintiff did not seize or attach any property of the defendants,. Walden and Tarr, and the court acquired no jurisdiction to impound said debt and no jurisdiction of the garnishee therein, and the payment by the plaintiff of the pretended judgment in said proceedings was voluntary on its part, and the finding and judgment should be for the defendants.”

I. Counsel for appellants first complain of the action of the circuit court in refusing to permit them to prove by parol testimony that Walden and Tarr had never been served with personal process in the attachment suit brought by the Arkansas Mining Company against them, in the circuit court of Cook county, Illinois, where the respondent, the Western Assurance Company, was garnished.'

There was no pretense made at the trial of this case, that Walden and Tarr had been served with personal service in that case; but upon the contrary the transcript of the proceedings had in that cause was introduced in evidence by respondent and it affirmatively appears therefrom that Walden and Tarr were non-residents of the State of Illinois, and were not found therein. The transcript further shows, that when it was made known to that court that they were nonresidents of that State and could not be found therein, then an order of publication against them was duly obtained and published according to the statutes of that State.

Upon this state of the record, even though it be conceded' that the evidence offered was admissible, still we are unable to see in what possible manner the appellants were injured by its exclusion.

The facts they offered to prove thereby had already been indisputably established by documentary evidence introduced by counsel for respondent. Clearly there is no merit in this complaint of counsel for appellants.

II. It is nest insisted by counsel for appellants, that the transcript of the judgment and proceeding had in the case of the Arkansas Mining Company against Walden and Tarr, in the circuit court of Cook county, Illinois, was erroneously admitted in evidence, at the trial of this cause.

The record in this case discloses the facts that said judgment and transcript were duly authenticated according to the act of Congress governing such matters ; also shows that the circuit court of Cook county, Illinois, is a court of record, and has a judge presiding, a clerk attending upon the same, as well as a seal of court. Upon that state of facts the law presumes that such a court is a court of general jurisdiction and that it had jurisdiction of the subject-matter of the action pending therein, and of the parties thereto; and in the absence of proof to the contrary such presumption is conclusive. [Van Fleet on Collateral Attack, secs. 845 and 847; American Mut. Life Ins. Co. v. Mason, 159 Ind. 15; Bailey v. Martin, 119 Ind. 103; Old Wayne Assn. v. McDonough, 164 Ind. 321; Pringle v. Woolworth, 90 N. Y. 502; Stewart v. Stewart, 27 W. Va. 167; Woodworth v. McKee, 126 Iowa, 714; Williams v. Williams, 53 Mo. App. 617; Seymoure v. Newman, 77 Mo. App. 578; Wilson v. Jackson, 10 Mo. 329; National Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468.]

. Section I of article IV of the Constitution of the United States provides that “full faith and credit shall be given in every State to the public acts, records and judicial proceedings of every other State. ’ * Full faith and credit cannot be given to judgments and judicial proceedings of another State, by the courts of this, except where those matters are called to the court’s attention, and that can only be done in such a case by offering or introducing them in evidence. In the' case at bar, they were introduced, and in our opinion were properly so; but what is the legal effect of the judgment after it was introduced in evidence is quite a different proposition, which will receive consideration in a subsequent paragraph.

III. Counsel for appellant insist that the judgment of the circuit court of Cook county, Illinois, in the case of the Arkansas Mining Company v. Walden and Tarr, the appellants here, and the Western Assurance Company, the respondent, in so far as they are concerned, is void for the reason that they were only served by publication, not by personal service, and for that reason, the judgment is not binding upon them.

There can be no question but what a judgment in personam against a nonresident of the State where the judgment was rendered, upon a mere order of publication, without service of any process, or an entry of appearance by the defendant, is absolutely void; and for that reason it is not entitled to full faith and credit in the courts of this State, under section I of article TV of the Federal Constitution. This is no longer an open or debatable question. [Pennoyer v. Neff, 95 U. S. 714; Reno on Nonresidents, sec. 188, 197, 200 and 201; Freeman v. Alderson, 119 U. S. 185; Cole v. Cunningham, 133 U. S. 107; St. Clair v. Cox, 106 U. S. 350; Greenleaf on Evidence (18 Ed.), sec. 540; Smith v. McCutcheon, 38 Mo. 415; Abbott v. Sheppard, 44 Mo. 272; Crim v. Crim, 162 Mo. 544; Wilson v. Railroad, 108 Mo. 599.]

But it is equally well settled that a judgment rendered upon such a service where property is seized by attachment or garnished in the hands of persons within the jurisdiction of the court who have been personally served is valid and binding against the nonresident defendant, to the extent of the property attached, or money and effects garnished in the hands of the garnishee. [See cases last cited.] A debt due a citizen of this State by a citizen of another State or country, may be sued for in the courts of such State or country. [Wyeth Hardware & Manufacturing Co. v. Lang & Co., 127 Mo. 242; Howland v. Railroad, 134 Mo. 474; National Fire Insurance Co. v. Chambers, 53 N. J. Eq. 468; Harris v. Balk, 198 U. S. l. c. 225; Railroad v. Flannigan, 47 Ill. App. 322; Mooney v. Buford & George Mfg. Co., 18 C. C. A. 421.] All such judgments are entitled to full faith and credit under the provision of the Federal Constitution previously mentioned.

In the case at bar, while Walden & Tarr were nonresidents of the State of Illinois, nevertheless, they were duly served by publication to appear and defend the case of the Arkansas Mining Co. vs. themselves pending in the circuit court of Cook county, in which the Western Assurance Company, the respondent, was garnished, by personal service, for the $1000' it owed, the appellants under the policy of insurance before mentioned, and which had been adjusted but not paid .before the institution of that suit.

The judgment there rendered against the garnishee, the Assurance Company, was valid and binding upon it and upon Walden and Tarr, to the extent of the money garnished in the hands of said Assurance Company; and according to the authorities before cited, that judgment is entitled to full faith and credit in the courts of this State.

According to these views, we must hold that the trial court properly refused all of the instructions asked by counsel for appellants, declaring the law to be to the contrary.

IV. It is finally insisted by counsel for appellants that the petition does pot state a cause of action against the defendants, for the reason that it appears from the face thereof that there was no consideration for the execution of the bond.

This insistence is without merit. It shows that in consideration of the giving of the bond, the respondent paid the policy of insurance to the appellants, which it would not have done had it not been for the execution of the same; and had the respondent not voluntarily paid Walden and Tarr the amount due under the policy, it could never have been compelled to so do, for the reason that it could have successfully pleaded the Cook-county judgment rendered against it and its payment. That would have constituted a perfect bar against any suit they might have brought against it.

Had it pursued that course it would have paid the policy only once, but relying upon the bond they not only paid Walden and Tarr the amount due under the policy, but were also required to pay the same amount due under the policy, for them, to the Arkansas Mining Company, in obedience of the judgment of the circuit court of Cook county.

We are therefore of the opinion that the judgment should be affirmed and it is so ordered.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    GRANVILLE WEST, Appellant, v. JOHN T. SPENCER.
    Division One,
    November 29, 1911.
    DEEDS OF TRUST: Foreclosure: The Then Sheriff. A deed of trust providing that in case of the absence, death, refusal to act, or disability in any wise of the trustee, “the then acting sheriff” shall have power to sell the property, refers to the sheriff in office at the time the sale is made, and not to a sheriff who was in office at the time the note, by its terms, became due. The sheriff in office at the time of the foreclosure is the donee of the powers of sale and conveyance in deeds of trust in the usual form, where the trustee refuses to act.
    Appeal from Greene Circuit Court. — How. Jas. T. Neville, Judge.
    Affirmed.

      J. M. McPherson. for appellant.
    (1) The power of sale in the trust deed must be strictly followed. The power of sale contained in a deed of trust given to secure a debt must be strictly pursued. Schnakewerlc v. Hoberecht, 117 Mo. 22. (2) The title to the lands in question was vested in John Manlove, sheriff. The trustee in a deed of trust given upon land to secure the payment of debts takes the title, and when the title to the property once becomes vested in the trustee by default, it continues vested in him until divested by some disqualification on his part mentioned in the instrument, such as his absence or removal. McNutt v. Insurance Co., 181 Mo. 94. (3) The foreclosure sale by Conner, sheriff, was void. - Where a deed of trust provides that upon default and in' case of the absence of the trustee named in the deed of trust, the then acting sheriff shall succeed to his powers, the sheriff who is such at the time of the default and absence by removal of the trustee named, is the sheriff meant and not a subsequent sheriff who may happen to be such, at a subsequent time when the holder of the note may request a foreclosure. Mc-Nutt v. Insurance Co., 181 Mo. 94; Chase v. Davis, 88 Mo. 585'; Harwood v. Tracy, 118 Mo. 631.

      Charles L. Henson and John C. Turk for respondent.
    (1) Where in the deed of trust with power of sale, it is provided that in certain contingencies the then acting sheriff shall be substituted as trustee, it does not mean the sheriff at the time of the happening, of any such contingencies, or at the date of the deed of trust or the time of the default in the payment of the note, but it means the sheriff at the time of the foreclosure. Feller v. Lee, 225 Mo. 319; Betzler v. James, 227 Mo. 375. (2) When real estate is sold under power of sale contained in a deed of trust, by a sheriff acting as trustee, recitals in his deed concerning default, advertisement, sale or receipt of purchase money and other pertinent facts shall be received in all courts as prima-facie evidence of the truth thereof. R. S. 1909, sec. 2858; Hume v. Hopkins, 1401 Mo. 65'. (3) In an ejectment suit, although the trustee named in the deed of trust did not refuse to act, and the sheriff sold the land as acting trustee without knowledge of the trustee, that does not vitiate the sale so as to defeat defendant’s deed from the purchaser at the sale, where the defendant was such purchaser in good faith. Ádams v. Carpenter, 187 Mo. 613; Biffle v. Pullman, 125 Mo. 108.
   LAMM, J.

-Ejectment by West for twenty-five acres of land in the southwest corner of the southwest quarter of the northwest quarter of section 21, township 29, range 25, Lawrence county, describes by metes and bounds. Ouster is laid as of tbe--day of January, 1907. Cast below on a trial on the merits, plaintiff comes up by appeal.

As presently appearing, there is but a single question in tbe case, and that apart, from tbe pleadings. Hence, they may be put to one side.

Plaintiff is tbe common source of title. On May 2, 1896, be and bis wife conveyed tbe land to a Doctor Paris as trustee to secure a note for $97.40, due Spaulding and Miles, or order, maturing on December 1, 1898, with interest at eight per cent from mar turity. This deed of trust was subject to a prior one in favor of tbe Central Life Insurance Company, both duly spread of record. Doctor Paris was then a resident of Lawrence county and continued to be such resident until tbe note came due, and for some time thereafter, when be removedlo Polk and took up bis residence in tbe latter county. At tbe time of such removal and change of residence, John Manlove was sheriff of Lawrence and continued to bold that office for some time. At tbe expiration of bis term as sheriff be remained a resident of Lawrence county and lived there at tbe time said junior deed of trust was foreclosed. Sometime before tbe foreclosure, Jobn A. Con-nor became sheriff of Lawrence county and was acting as such at tbe time of such foreclosure. At a certain time after bis removal Doctor Paris refused in writing to- act in tbe capacity of trustee and execute tbe powers donated by tbe deed. Thereupon Connor, at tbe request of tbe legal owner of tbe secured note, made due advertisement and sale. At that sale in 1904 one Murray was tbe best and last bidder and tbe land was knocked down to him under tbe hammer and the deed of trust was thereby satisfied. Thereat Connor executed a trustee’s deed to Murray with apt narrations and in due form. This deed was spread of record in Lawrence county. Thereupon Murray conveyed by warranty deed, duly executed and put of record, to defendant Spencer, who in turn entered upon the land and has since that time enjoyed the possession and usufruct thereof, claiming to own it under said trustee’s deed and the conveyance from Murray. Some three years later, West brought the suit at bar.

Besides relying on a legal title, there are equities pleaded by Spencer arising from his payment of the first mortgage, taxes, etc., but these equities need no attention unless West is entitled to recover. He is not entitled to recover if Connor, as acting sheriff at the time of foreclosure, was authorized by the terms of the deed of trust to stand in the shoes of Paris as trustee and execute the power of sale therein created and donated. Whether he as “then acting sheriff,” or Manlove, sheriff at the time the note became due and Paris changed his residence, had power to foreclose and convey is the determinative question in the case.

The foreclosed deed of trust had the following provisions, inter alia-.

“. . . and the said party of the second part, or in case of his absence, death, refusal to act, or disability in any wise, the (then) acting sheriff of Lawrence county, Missouri, at the request of the legal holder of said note, may proceed to sell the property,” etc.

There are other narrations in the deed of trust but they are conventional and have no bearing on the case.

Plaintiff assigns error as follows:

First. That the power of sale in the trust deed must be strictly followed.

Second. That the title to the land became vested In John Manlove, sheriff.

Third. That the foreclosure sale by Connor, sheriff, is void.

For the purposes of the instant case the first proposition may be allowed to plaintiff without discussion. For whether the power must be “strictly followed,” that is, according to the very letter, without the aid of equitable considerations or implications, or whether substantial compliance will do, it is not necessary to decide, since in either event our conclusión must be that the two last propositions are unsound and must be disallowed. In deciding cases it is a very good rule not to decide to-day (in an instant case) what you might better decide tomorrow (in some other case). This rule has a tendency to exclude obiter, it points the distinction between a legal treatise on a general head of the law, and a judicial opinion on a concrete case, and it saves trouble to those judges who come after us and are called to decide the-question as vital and turning in some appeal.

Plaintiff leans on McNutt v. Insurance Co., 181 Mo. 94. But he leans on a broken staff. The phraseology of the McNutt deed of trust held in judgment in that case is not the same as the quoted provision from the deed in this case. There is general language in the McNutt case lending countenance to plaintiff’s view, but that general language must no longer be taken as announcing good doctrine. In Feller v. Lee, 225 Mo. 319, the authority of the McNutt case was much shaken, and the holding in the Feller case had the effect (if it did not 'overturn the case) to restrict the McNutt case as authority strictly to the case decided on the very deed there in question. In the McNutt case the language used in creating the trust and donating power was so peculiar, so restrictive and technical that it entangled the owner of the secured notes in-a net he may have woven for the other party. This language (with equities there present) led the court to the conclusion it announced in dealing out justice to those litigants. In Betzler and Clark v. James, 227 Mo. 375, the Feller case was followed. So, in a very late case, Miller v. New Madrid Bank, 236 Mo. 522, the Feller case was followed. The conclusions reached in the Feller, Betzler and Miller cases amount to overruling the McNutt case in so far as its general doctrines seem to apply to deeds of trust of the character of that at bar.

We shall not reopen the controversy set at rest by these decisions. They stand on their own reasoning and the up to date student in jurisprudence, prodded thereto by a prying mind, may consult those down to date cases for the philosophy of the now accepted doctrine, viz.: In deeds of trust in the usual form (like the one in hand) the legal title is not so vested in the sheriff in office at the time of default, or at the time the original trustee dies, removes, is disabled or refuses to serve, that he has call to execute the powers of sale in foreclosure at the request of the legal holder of the secured note. E converso, the sheriff in office at the time of the foreclosure is the donee of the powers of sale and conveyance in such case. He is the “then acting sheriff” within the purview of the contracting parties.

Accordingly we rule the second and third assignments of error against plaintiff. From that ruling it follows the judgment should be affirmed.

After disposing of the case as above, we find in the files a motion by defendant to dismiss the appeal on grounds striking at the sufficiency of the abstract. Even if that motion were found well taken we cannot very well both dismiss and affirm. That course would be a novel and wild exuberance of judicial power. As defendant asks two favors, the one reaching the same ultimate goal as the other (viz., leaving the judgment below stand) he must rest content with one. Affirmance is enough. The motion is functus officio and is overruled.

The judgment is affirmed.

.All concur.


author: GRAVES, P. J.

text:
    JOHN N. SPENCE et al. v. JACOB NEWTON SPENCE et al., Appellants.
    Division One,
    November 29, 1911.
    1. WITNESS: Competency: Limitations: Parties to Contract. The owner of land died intestate, leaving six children. William bought the interest of four of them, and the sixth, Newton, was sued by attachment and the lands were properly described in the judgment, return of levy and notice of sale, .but the sheriff’s deed to William did not properly describe them. After the death of both William and Newton, William’s children bring suit against those of Newton to quiet title. Held, that plaintiffs are not claiming under a contract with Newton, and they are competent to testify to facts tending to show that William held possession adversely to Newton.
    2. LIMITATIONS: Adverse Possession: Cotenants. Title by adverse possession may be acquired by one cotenant from another. Where the evidence is clear, pointed and convincing that for more than thirty years plaintiffs and their father were in possession, paid the taxes, put up lasting improvements, and during all that time claimed the entire title and held adversely to their cotenants, it establishes title in plaintiffs under the thirty-year Statute of Limitations.
    3. EQUITABLE TITLE: Wrong Description in Sheriff’s Deed: Color of Title. Where in the attachment suit, the special execution, the judgment and notice of the sale all correctly described the property, and the only error in the description was in the sheriff’s.deed which described the land as being in range 32 instead of range 31, the equitable title passed to the purchaser, who also had color of title when he took possession under the deed.
    Appeal from Jasper Circuit Court. — Hon. Hugh Dabbs, Judge.
    Affirmed.

      J. H. & W. E: Bailey for appellants.
    (1) The court erred in permitting the plaintiffs, the heirs at law of William David Spence, to testify. The witnesses S. M. Spence and William J. Spence, with the other co-plaintiffs, claimed title to the land in question by the adverse possession of their father and the plaintiffs depended solely upon their evidence to recover. Where it is sought to establish title in a tenant in common as heir of their deceased father against a claimant who is a co-tenant, plaintiffs are not competent witnesses in their own behalf where the facts are such that their father would have been incompetent to testify under the statute. Rice v. Shipley, 159 Mo. 399; Messimer v. McCray, 113 Mo. 382; Teats v. Flanders, 118 Mo. 660'; Tucker v. Gentry, 93 Mo. App. 655; Kirton v. Bull, 168 Mo. 622. (2). In order to constitute color of title the deed must include the land claimed and designate same clearly. The sheriff’s deed in this ease was no evidence of intention and was no notice of adverse holding. Hamilton v. Boggess, 63 Mo. 233; Dunnington v. Hudson, 217 Mo. 93; Hickman v. Link, 97 Mo. 488; Brewing Co. v. Payne, 197 Mo. 429; Allen v. Mansfield, 108 Mo. 348; Golden v. Tyer, 180' Mo. 202. (3) The court erred in its finding and decree, that under the evidence one tenant in common in possession could establish adverse possession against his co-tenant without an actual ouster or actual or constructive notice, and one who enters into possession of a tract of land having title to same enters in conformity thereto. Primafacie the entry of a tenant in common is not adverse to his eotenants, but in support of the common title. Warfield v. Lindell, 30 Mo. 272; Long v. McDow, 87 Mo. 197; Benoist v. Rothchild, 145 Mo. 408; Rodney v. McLaughlin, 97 Mo. 426; Chapmen v. Kullman, 191 Mo. 237; Golden v. Tyer, 180 Mo. 196. Payment of taxes is not sufficient to establish adverse possession. Chapman v. Templeton, 53 Mo. 463; C'ashmen v.,Gash-man, 123 Mo. 647. ,

      E. W. Blair for respondents.
    (1) This case does not come within the contemplation of section 4652, Revised Statutes 18991, for the reason that no contract or cause of action such as that statute refers to, is involved in this case. That statute was enacted for the purpose of putting parties having contractual relations upon an equal footing and preventing one from giving his' version of an agreement when the other party was dead and could not confront him. No such situation is presented by the facts in this case. No contract is involved — the sheriff’s deed read in evidence was not between the two Spence brothers, but between the sheriff and William David Spence; further, that deed is pot involved here in the sense that any effort is made to reform it or change its legal effect. This is an action involving solely the question of the possession of certain land and the nature of that possession. Golden, v. Tyler, 180 Mo. 201; Swope v. Ward, 185 Mo. 327'. (2) (a) William David Spence, plaintiff’s ancestor, not only had color of title, but had the equitable title, by reason of the sheriff’s sale. Manning v. K. & T. Coal Co., 181 Mo. 359. (b) The attachment, sheriff’s levy and judgment and special execution, being public records of the county, imparted notice to Newton Spence that his land was attached and a lien against it existed and that it would be sold to satisfy the lien. The sheriff’s deed recited what the judgment was, when and where and in what action it had been rendered, and other details which carried with it, upon its being filed for record, notice to Newton Spence that William David Spence claimed the title to the tract in suit, (c) This' action is brought under the thirty-year Statute of Limitations and no constructive possession of any part of the land is claimed. Instead, plaintiffs claim, through William David Spence, to have been in the actual possession of the whole tract, hence no question of ' color of title can be raised. Quick v. Rnfe, 164 Mo. 412; Mather v. Walsh, 107 Mo. 121; 1 Cyc. 847. At the time William David Spence entered into possession after receiving the sheriff’s deed, he held under that deed the equitable title to one-sixth and by descent and purchase from his brothers and sisters the legal title to five-sixths, and he was claiming to own the entire title, hence he never was a cotenant of defendants ’ ancestor, Newton Spence. Collins v. Pease, 146 Mo. 139; Mansfield v. Pollock, 74 Mo. 188; Swope v. Ward, 185 Mo. 324; Hendricks v. Musgrove, 183 Mo. 3101. (3') Even if William David Spence had not acquired the equitable title at the sheriff's sale, and had entered into possession as a tenant in common with Newton J. Spence, there can be no merit in defendants’ position at this time. The rule of law as to adverse possession by one tenant in common against another is well settled. It is only in the application of the rule to particular facts that any discussion possibly can arise. Since Lapeyre v. Pail, 47 Mo. 586, it has been settled in this State that there need not be actual personal knowledge to the other tenants in common by one claiming adversely. Chapman v. Kullman, 191 Mo. 247; Penoist v. Rothschild, 15 Mo. 408; Rodney v. McLaughlin, 97 Mo. 431; Long v. McDow, 87 Mo. 197; Golden v. Tyer, 180 Mo. 196; Warfield v. Lindell, 30 Mo. 282; Huston v. Huston, 1391 Mo. 237. Under the thirty-year limitation statute when neither Newton Spence nor anyone claiming under him had been in possession or paid any taxes for a period of thirty years, he or anyone claiming under him was given only one year in which to bring his suit, and the statute provides that in case suit is not brought within one year the title to the land shall vest in the person in possession. De Hatre v. Edmonds, 200 Mo. 275; Crain v. Peterman, 200 Mo. 299.
   GRAVES, P. J.

Action under section 1884, Revised Statutes 1909 (formerly section 4268, Revised Statutes 1899), to quiet title to two hundred acres of land in Jasper county, Missouri.

Plaintiffs are the heirs at law of William David Spence, who died April 26, 1907. Defendants are the heirs at law of Newton Spence, a brother of William David Spence. The land in dispute was owned by Samuel Spence, grandfather of plaintiffs and defendants. Samuel .Spence died, intestate, in the year 1859, leaving surviving him his widow, Elizabeth Spence, and his children, William David Spence, Newton Spence, Louis Spence, Lazarus Spence, Millie Bunch and Sarah Hull. It is undisputed in the record that William David Spence had acquired the interests of the widow and all of the heirs, of Samuel Spence by deeds from them to him, except the interest of Newton Spence. This was done by two separate deeds made in the year 1867. The first deed in the record is from Lazarus Spence and Louis Spence and wife. The second is from Sarah Hull and Millie Bunch and their husbands, and the widow, Elizabeth Spence.

The interest of Newton Spence, it is claimed, was acquired.by William D. Spence through a sheriff’s sale in March, 1867. In 1865, Newton Spence seems to have been sued in the circuit court of Jasper county, and his interest in the land attached. Judgment was obtained against him for $1500’ and a special execution was issued against these lands, and the same were properly advertised and sold. The lands are properly described in the return of levy of the sheriff under the writ of attachment, in the judgment and in the notice of sale. An error appears in the deed. The lands are all in range 31, but in the deed they are described as being.in range 32. The execution we do not find in the record.

' The petition is in the usual form for the thirty year Statute of Limitations. Its allegations are full and complete. The answer, after certain admissions made therein, asserts that the defendants own one-sixth interest in the land through their father, Newton Spence, and avers that William David Spencer was a tenant in common with their father, and since his death with them. The answer then further proceeds and concludes in this language:

“Defendants further state that since the year 1884, the date of the death of their father, Newton Spence, who was the owner of the undivided one-sixth interest thereof, a part of the defendants herein have lived upon and been in the joint possession with the said William David Spence, living thereon and enjoying the uses and benefits derived therefrom and claiming the undivided one-sixth interest as their own.
“Defendants for further answer state that no notice of any claim of title or ownership either actual or constructive was ever made by the ■ said William David Spence in his lifetime, and that the defendants herein were never informed of any actual or constructive ouster by the said William David Spence, as to the interest in and to said land held by the defendants herein.
“Wherefore, defendants pray the court to ascertain, adjudge and determine the estate, title and interests of the defendants and plaintiffs in and to said real estate and to define and adjudge by its judgment ■or decree, the title, estate and interests of the parties severally in and to said land set out and described in plaintiff’s petition and for all other proper relief and for costs of suit.”

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

The trial court found for the plaintiffs and decreed title in them and debarred defendants of all claim to said land. From this judgment, defendants appealed to this court. Further matters in evidence will be reverted to in the course of the opinion.

I. S. M. Spence and William J. Spence, two of the plaintiffs, testified as witnesses in the case. Their testimony tended to show the adverse possession of their father of the land in question from 1867. The defendants challenged the competency of these witnesses and now urge that they were not competent to testify.

The statute relied upon by defendants is section 65-2, Revised Statutes 1899, now section 6354, Revised Statutes 1909. The contention by the plaintiffs 'that they have title by adverse possession does not involve a contract between the parents of these respective parties. On this idea of the case, plaintiffs are not claiming under a contract from the deceased, Newton-Spence. There never was, in fact, a contract of conveyance or a conveyance from Newton Spence, the ancestor on the one side, and William David Spence, the-ancestor on the other side. The only things we have-in this case are an inheritance cast by law upon Newton Spence by the death of his father, Samuel Spence,, and the sale of that inheritance by the sheriff to William David Spence. The only instrument which could be called a contract is the attempted deed from the sheriff to the said William David Spence. To that instrument, Newton Spence was not a party. This evidence was not given concerning this deed. The sufficiency of this deed, it is true, is attacked, but only for legal reasons appearing upon the face thereof, and not otherwise. We are of opinion that these witnesses were competent.

This case falls within the facts and law of the case of Golden v. Tyer, 180 Mo. 196. In that case, Nancy M. Golden sued in ejectment for some lands. Tyer claimed title by a deed from Sam Payton,' a brother of Mrs. Golden. Sam Payton had a deed from the Payton heirs, but such deed did not convey the title of Mrs. Golden, one of the Payton heirs. The answer in that case was a general denial and. the Statute of Limitations. For plaintiff it was contended that she and Sam Payton, who was then dead, were co-tenants, and for that reason the Statute of Limitations did not run. According to the report of her evidence, Mrs. Golden’s testimony is thus summarized: “Nancy M. Golden, plaintiff, testified-in the cause. Her testimony tends to show that she resided on the premises for .a number of years; that she paid part of the taxes; that her brother, Sam Payton, under whom defendant claims title, paid her rent in accordance with her interest in the land; that she always claimed to be a tenant in common with her brother, Sam Payton.” The competency of Mrs. Golden as a witness was challenged, and this court then said:

“We cannot agree with learned counsel for appellant that she is an incompetent witness.
“It is true at the time this cause was tried, the record discloses that Sam Payton was dead, and it is also conceded that he is the appellant’s grantor; but it does not follow from his death that the plaintiff is rendered incompetent to testify.
‘ ‘ Sam Payton is not a party to this action, nor is or was he a party to the contract which is involved in this suit. The quitclaim deed offered by defendant is not in question; there is no dispute about that deed; this action is not to set aside or change, in any manner, the legal effect of that instrument. It speaks for itself, and its contents must determine its legal effect.
“There is a dispute as to the right of possession between parties, both of whom are living. Sam Pay-ton is not a party, nor is he a necessary party to the determination of this cause, and so far as this action is concerned, has no legal interest in it. He may be interested in it by reason of his covenants in his deed; this is not contemplated by the statute and cannot be made the basis of excluding the plaintiff as a witness. An examination of the cases cited by appellant in support of this, contention, will demonstrate their dissimilarity to the proposition before us. In those cases, it -will be observed that a contract between a dead and living party was involved. Hence, they came directly within the terms of the statute which rendered the living witness incompetent. The plaintiff in this case is not assailing any contract with her deceased brother, nor is she claiming title under him.”'

This Golden case determines the objection raised in this case, and determines it against the contention of the defendants. We hold that these witnesses were competent.

II. Much is said as to the sheriff’s deed in this case, but the case can be fully disposed of without consideration of that deed. We understand that without that deed William D. and Newton Spence were tenants in common of the land in question in the early days of 1867. Title by adverse possession may be acquired even by a cotenant under given conditions. [Nickey v. Leader, 235 Mo. 30, and cases therein cited.] In such cases the evidence as to the adverse holding must be clear, pointed and convincing, but if the evidence measures up to this standard, title by adverse possession may be obtained.

In the case at bar, the overwhelming testimony tends to show an adverse holding by William David Spence and his heirs. Such adverse holding is shown to be open and notorious. Upon this point the trial court was right. By his judgment and finding the trial court said as to these plaintiffs and their father, that for more than thirty years they were holding the possession of these lands, and paying the taxes thereon and putting lasting and permanent improvements thereon, and during all such time were ‘ claiming the entire title and holding adversely to the defendants and their ancestor, Newton J. Spence.”

Under the evidence we could not well hold to the contrary, even if we disregard the predisposition of this court to yield to the judgment of the trial court on questions of fact. To our minds the evid'ence in this record conclusively shows an adverse holding of these lands for more than thirty years, and the trial court could not have very well held otherwise.

This practically disposes of the case, but we will discuss the effect of this sheriff’s deed. That question we take next.

III. In this case, William David Spence not only entered into the possession under color of title, as to the interest of Newton Spence, but he actually had the equitable title. As before stated, the lands were properly described throughout the whole proceedings, except in the deed. The levy was light. The judgment was right. The notice of sale was right. The only mistake lies in the description in the deed where the range is said to be thirty-two when it should have been thirty-one. We have had just such a situation before this court and held that the equitable title passed to the purchaser at the execution sale. In Manning v. Coal Co., 181 Mo. l. c. 369, we disposed of the question in this language: “The record in said cause shows that the right land was attached and sold under execution, but the sheriff’s deed misdescribes the land as in section two, instead of section twenty-six. This was evidently a mistake of the sheriff in the description, as the records in the case show that the right land was attached, advertised, sold and bid in by Stephen Gipson, who paid the purchase price, and he acquired at least an equitable interest in the land sold. ”

It thus appears that under more than one theory of' the case the judgment, nisi, was right, and it is therefore affirmed.

-All concur.