author: BROWN, J.

text:
    DORA E. EVANS et al. v. MARGARET A. MORRIS et al., Appellants.
    Division Two,
    April 11, 1911.
    1. EQUITABLE ESTATE; Deed to Wife. A deed from a husband to a wife in 1879 vested a separate equitable estate in her, which upon her death ripened into a' legal estate in her children, subject to the curtesy right of her husband.
    2. WIFE'S DEED: Acknowledgment: Not Apart from Husband. An acknowledgment to a deed by a wife executed in 1882, which did not recite that she was made acquainted with its contents, and that upon an examination separate and apart from her husband she acknowledged that it was executed freely and without compulsion or undue influence on his part, was not a legal acknowledgment, and her deed without such acknowledgment conveyed no 'title. And the reason for a separate examination is all the stronger where her husband is the grantee.
    3. CURATOR: Order Appointing: Minors Not Named. An order of the probate court appointing a curator of minor children is not void because said order fails to specifically name said minors.
    4. HUSBAND NOT JOINING. A deed by' á married woman eighteen years of age, made in 1901, is valid without her husband joining therein.
    5. -• Contract to Convey: Husband Not Joining. Likewise a contract to convey land, executed in 1900 by a married woman eighteen years old, is not invalid simply because her husband did not join her in the execution of the contract.
    6. -: -: Specifically Enforced Against Heirs. A contract on the part of a married woman to sell and convey land, executed in 1900, in consideration of money actually received, may be specifically enforced against her children after her death.
    7. CURTESY: Resulting Trust: Adverse Possession. Where the only right the deceased wife had was the right to establish a resulting trust in the land bought with her money and conveyed to her curator in his own name as sole grantee, and such grantee was at the time of her death in adverse possession under said deed, her husband upon her death, leaving children, prior -to the establishment of the resulting trust, cannot have curtesy. She never had such seizin as would vest him with curtesy.

      8. -: Reinvestment of Estate. Where a father, entitled to curtesy in lands, sells both his own interest, and as curator of his minor children their interests also, and invests the proceeds in other lands, taking title in his own name as sole grantee, and then dies leaving children by a second, wife, and suit is brought by the children of the first wife to establish a resulting trust, the value of his curtesy in the first tract which went to purchase the last tract, should be deducted from the amount for which the first tract was sold; and the value of his curtesy can be ascertained by the usual method of computing life estates.
    9. HOMESTEAD: In Lands in Which Others Have Resulting Trust. Where' a father used the money of his children by his first wife to buy land and took the title in his own name, and then married again and died leaving children by the second wife, neither she nor they have any homestead in so much of the land as the children.by the first wife are entitled to establish a resulting trust in.
    Appeal from Linn Circuit Court. — Hon. John P. Butter, Judge.
    Reversed and remanded.

      A. W. Mullins and Bailey & Hart for appellants.
    (1) The court erred in refusing to admit in evidence the deed from Nancy J. Morris to her husband, George M. Morris, conveying the land which George M. Morris sold as curator, the proceeds of which sale were invested in the land which the trial court found was held by George M. Morris as trustee for his children. A deed from the wife to the husband is good and will convey the legal title to the husband. Glascock v. Glascock, 217 Mo. 362; Rice-Stix v. Sully, 176 Mo. 107; Grimes v. Reynolds, 184 Mo. 692; O’Day v. Meadows, 194 Mo. 614; Bower v. Daniel, 198 Mo. 320. (2) The court erred in refusing to admit in evidence the deed from Eliza E. Shifflett, Sarah J. Morris and Dora E. Evans, heirs at law of Nancy Morris, conveying the land which the decree finds was held by George M. Morris as trustee, to the said George M. Morris, dated October 1, 1901. This deed was ex-eluded by tbe trial court for tbe reason that these grantors were married women at the time the deed was made and their husbands did not join in the deed. These deeds conveyed the interest of these respondents without their husbands joining. Farmers’ Bank v. Hageluken, 165 Mo. 443; Kirkpatrick v. Pease, 202 Mo. 491; O’Day v. Meadows, 194 Mo. 614; Glascock v. Glascock, 217 Mo. 362. (3) The court erred in refusing to admit in evidence the contract entered into November 3, 1900, between Isabella Francis Gasü, who was a daughter of Nancy Morris, and her father, George M. Morris, which released all her interest in the land which the court found George M. Morris held in trust, to the said George M. Morris. This contract was executed November 3, 1900, and the fact that she was then a married woman did not affect her right to make this contract. Farmers’ Bank v. Hageluken, supra; Kirkpatrick v. Pease, 202 Mo. 491; Glascock v. Glascock, 217 Mo. 362. (4) The decree rendered by the trial court fails to follow the evidence, and is unsupported by the evidence in several particulars. The evidence discloses, and the court found, that George M. Morris in his lifetime had .acquired by purchase the interest of his daughter, Sarah J. Gash, in the land, and had inherited an undivided one twenty-fifth interest therein from his infant daughter, and that he died seized thereof. That he left surviving him the defendants, his widow and five minor children, and that they lived on this land as their home. Under this finding the defendants are clearly entitled to a homestead in that part of the land of which George M. Morris died seized. This the trial court failed to give them. The defendant Margaret A. Morris was also entitled to dower in that part of the land of which her husband, George M. Morris, died seized. This the court failed to allow her, but in lieu thereof gave her a judgment for $100 to be paid out of the shares in the land which the court found belonged to Ella Elsie and Oliver Mate Gash, which shares the court found were also subject to the curtesy of plaintiff, Edward G'ash, but the court failed to determine which, said dower or said curtesy, has the priority. The court also in its judgment seems to ignore the plaintiff, Ella Elsie Gash, by failing to give her anything.

      Bresnehen é West for respondents.
    (1) The deed purporting to have been executed by Nancy J. Morris and purporting to convey her 60 acres of land to George M. Morris, her husband, dated December 9, 1882, is void, (a) Because the deed of a married woman wherein she is not joined by her husband made prior to the amendment of the Married Woman’s Act in 1889 is void. Huff v. Price, 50 Mo. 228; Shroyer v. Nickell, 55 Mo. 264; McReynolds v. Grubb, 150 Mo. 352. Because said deed was not acknowledged in accordance with the requirements of the statute then in force. R. S. 1879', sec. 681; Bagby v. Emberson, 79 Mo. 139; Goff v. Roberts, 72 Mo. 570; Bartlett v. O’Donoghue, 72 Mo. 563; Wannall v. Kern, 51 Mo. 150. (c) Because said deed purports to have been made by the wife direct to' the husband, and in such case the burden is on the husband to show that the deed was the result of her free will and consent after a full disclosure of all the facts and circumstances attending the transactions. Ilgenfritz v. Ilgenfritz, 116 Mo. 429. (d) Because, the acknowledgment not being according to law, there is no proof of the execution of said deed. (2) Regardless of the alleged deed from Nancy J. Morris to George M. Morris, her husband, said George M. Morris, by his action in making the sale of the land described in said deed as curate* of his children’s estate, has estopped himself and those claiming under him from denying that they were the owners of said land. (3) By the action of George M. Morris in reporting to the probate court in his settlement as curator of the estate of his, children that he had invested their money in the land in controversy, he has estopped himself and those claiming under him from denying the title thus acquired by them. (4) The evidence does not show whether Louisa (Eliza) E. Shifflett and Dtora E. Evans were married or single at the,date of the amendment of the Married Woman’s Act in 1889, but if married at that time, having acquired the land in controversy prior to that, then they could only, convey said land by deed wherein their respective husbands joined. Leet v. Bank, 115 Mo’ 184; Farmers’ Bank v. Hageluken, 165' Mo. 443. (5) Even if the deed executed by Louisa (Eliza) E. Shifflett and Dora E. Evans was effective to convey their title their husbands did not join in the deed, and they would have a curtesy interest in the land. (6') The contract alleged to have been made between Isabella Frances Gash and her father, George M. Morris, does not purport to convey her interest in the land in controversy to him. (7) Counsel for appellants are right in their contention that the defendants are entitled to homestead in whatever interest George M.. Morris owned in the land in controversy at the time of his death; and that portion of the decree setting out the interests of the respective parties should be so modified as to set out the interest of Ella Elsie Gash.
   BROWN, J.

— This is .an action in equity to establish a resulting trust in 86 acres of land in Linn county, Missouri.

One George M. Morris, late of Linn county, was twice married. Plaintiffs are his children and grandchildren through his marriage with Nancy Morris, his first wife. The defendants are his widow and children, by his second marriage, except defendant Sarah J. Gash, who is a daughter by his first marriage.

Plaintiffs were partially snceessfnl at the trial below, the court decreeing the title as follows: To plaintiff Evans, ifif, to plaintiff Shifflett, Iff, to plaintiff Oliver Mate Gash, AV) to defendant Sarah J. Gash, -AA, to the defendants Marion Morris, Edward Morris, Lola Morris, Ivy Morris and Alpha Morris (the last named five being children of the second marriage), -AV each; and to Margaret Morris, widow of George M. Morris, a lien of $100' upon the interests of Ella Elsie Gash and Oliver Mate Gash. There was a finding in favor of plaintiff Ella Elsie Gash, but no interest awarded to her. From this decree, defendants appeal.

The decree below is erroneous in many particulars — both as to form and substance; While it is our custom in suits of this character to retry the cause and direct the lower court to enter such judgment as it should have given,' it is impossible for us to do so in this case, on account of the indefinite and unsatisfactory nature of the evidence.

Some of the errors in the decree entered below arise from an erroneous construction of deeds offered in evidence; and we will construe these deeds so that proper effect may be given to them upon a retrial.

The interests of the plaintiffs in the 86 acres in controversy result from the investment therein of the proceeds of a sixty-acre tract in which they held part of the title. Consequently, to determine plaintiffs’ rights in the eighty-six acres now in dispute, we must first ascertain what interest they held in the sixty acres.

The title of plaintiffs in the sixty-acre tract was vested in the following manner:

First, a deed from George M. Morris to 'Nancy Morris, his wife, dated December 25, 1879. This conveyance vested in Nancy Morris (the ancestor of plaintiffs) a separate equitable estate, which upon her death ripened into a legal estate in her children, subject to the curtesy right therein of her husband, unless the next conveyance hereinafter mentioned transferred the title hack to her husband. [Pitte v. Sheriff, 108 Mo. 110; Stark v. Kirchgraber, 186 Mo. 633, l. c. 641, 642 and 643; Miller v. Quick, 158 Mo. 495.]

On December 9, 1882, said Nancy Morris made a conveyance of the above mentioned sixty acres to her said husband, George M. Morris. The validity of this deed is challenged, first, on the ground -¿hat Mrs. Morris could not convey her interest in this land without her husband joining her; and second, that the acknowledgment does not recite that she was examined apart from her husband. The acknowledgment is as follows:

State of Missouri, County of Linn: S. S. Be it remembered that on the 9th day of December, A. D., 1882, before the undersigned, a justice of the peace, within and for the county of Linn, aforesaid, personally came Nancy Morris, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing as the party thereto, and acknowledged the same to be her act and deed for the purposes therein mentioned. In testimony whereof I have- hereunto, etc. (Signature omitted).

It is unnecessary to determine whether or not Mrs. Morris possessed the power to make this deed without her husband joining her as a grantor therein. The law in force when it was executed prescribed that her acknowledgment thereto should recite that she was made acquainted with its contents, and that upon an examination apart from her husband, she acknowledged that it was executed freely and without compulsion or undue influence on his part. It will be seen that this acknowledgment contains no such recitals; and for aught that appears, the husband may have been personally present at the very time the officer took and certified the same. The husband being the grantee in this deed, the reason of the law which then required a separate examination applied with more force than if the deed had been made to a stranger. The execution of this deed not being proven and certified, as required by law, it conveyed no title, and the trial court did not err in excluding it. [R. S. 1879, sec. 681; Goff v. Roberts, 72 Mo. 570 l. c. 572; Bagby v. Emberson, 79 Mo. 139.] The law which dispensed with separate examinations of married women in taking their acknowledgments, was first enacted in the year 1883, and took effect July 1st of that year. [Laws 1883, page 20.]

Nancy Morris retained the title to this sixty-acre tract until December 22, 1882, when she died intestate and was survived by her husband and five daughters, to-wit: Dora E., Isabella E., Sarah J., Eliza E. and an infant (name not given). This infant survived its mother only three months. The plaintiffs in this case are children and grandchildren of said Nancy Morris, as follows: Dora E., who intermarried with one Evans; Eliza E., intermarried with one Shifflett; Ella Elsie Gash and Oliver Mate Gash, children of Isabella E., who intermarried with one Edward Gash, and died before the institution of this suit. Edward Gash also asserts a claim of curtesy through his deceased wife, Isabella.

Sarah J. Gash, the remaining* daughter of Nancy Morris, was made a party defendant herein, for reasons which will hereafter appear.

It will thus be seen that upon the death of the infant child of Nancy Morris, the title to the sixty acres became vested as follows: a life estate by the curtesy in the husband George M. Morris; remainder -2V in each of the four surviving daughters hereinbefore named, and the remaining ~h 'in the husband, by inheritance through his deceased infant child.

In'the year 1885 while the title stood in this condition, George M. Morris was appointed curator of the estates of his four daughters, Isabella E., Sarah J., Eliza E., and Dora E. (all minors), and through the usual proceedings in the probate court, sold their interests in the sixty acres. The validity of this sale is not called in question except by an objection tósthe order appointing Morris as curator, on the ground that said order did not recite the names of the. minors for whom he was appointed. This' objection was properly overruled by the court. [Reppstein v. Insurance Company, 51 Mo. 481.]

At his first annual settlement, made in May, 1886, George M. Morris reported to the probate court that he had sold the interests of his wards in the sixty acres, to one A. 0. Baugher, for $650' and had invested $700 of the proceeds of such sale in other lands. The purchaser, A. O. Baugher, testified that he .received two deeds for the sixty acres, one of them being the individual deed of George M. Morris, and the other a curator’s deed, and that he paid only $650 as the full purchase price of the land. How George M. Morris, the ancestor of plaintiffs, was able to invest $700 as the proceeds of a $650 sale — in other words, how he came to have $700 of his wards’ money within a few months after making the sale and paying the costs thereof, and also why he failed to receive anything for his life estate by the curtesy, and remainder of -2LS- derived from his deceased child, is not disclosed by the evidence, and .may have to be ascertained by the circuit court on a retrial of the cause.

About the year 1886 George M. Morris purchased the eighty-six acres of land now in controversy, taking deeds therefor in his own name. This is probably the same purchase which he referred to in his report as curator to the probate court. Just how much he paid for the eighty-six acres is not clearly shown by the evidence. The plaintiffs allege in their 'petition that he invested in this eighty-six acre tract $504.46 of moneys derived from the sale of the interests of his minor children in the sixty-acre tract; and the trial court found this allegation to be true; but the evidence is too indefinite for us to understand how that conclusion was reached.

The trial court failed to make any finding as to the aggregate price paid by George M. Morris for the eighty-six acres in controversy ( but it did find that he was entitled to a- -h interest therein, through the interest which he inherited from his infant child in the sixty-acre tract sold to Baugher.

The court further found that George M. Morris during his lifetime acquired the equitable interest of Sarah J. Gash, one of his daughters by his first wife, to the land in controversy, by a deed dated October 10, 1901. This is the reason why his said daughter Sarah J. Gash did not assert any title to the property in controversy and was made a party defendant herein. However, this. deed and finding did not prevent the. court from awarding her 4y0 of the land; though no reason is apparent for its act in so doing.

In the trial of this case, defendants offered á deed dated October 10,1901, executed by the plaintiffs Eliza E. Shifflett and Dora Ev Evans, purporting to convey to their father, George M. Morris, all their interest in the land in controversy, except six acres. This deed was objected to and excluded on the ground that the said Eliza E. Shifflett and Dora E. Evans were then married .women, and incapable of making a deed without their husbands joining them. The trial court committed error in excluding this deed, because these ladies, if they had attained the age of eighteen, were competent to transfer by their deed whatever interest they owned in the land, without their husbands joining them. [R. S. 1899, sec. 4335; R. S. 1909, sec. 8304; Farmers’ Exchange Bank v. Hageluken, 165 Mo. 443; O’Day v. Meadows, 194 Mo. l. c. 614; Glascock v. Glascock, 217 Mo. 362.] This deed was also executed by the defendant Sarah J. Gash, and bars all three of these daughters from establishing a resulting trust in any part of the land in controversy, except the six-acre tract which appears to have been omitted from the deed.

In the further progress of the trial, defendants offered in evidence a contract executed on November 3, 1900, by Isabella Gash, the mother of plaintiffs Ella Elsie Gash and Oliver Mate Gash, by which contract it is alleged that said Isabella, in consideration of one hundred dollars, transferred all of her interest in the property in controversy to her father. This contract was. also objected to and excluded on the ground that said Isabella Gash was then a married woman, and incapable of contracting regarding her interest in the land, although her husband appears to have been personally present and gave his oral consent to the contract. It is contended by the plaintiffs that the contract only purported to convey from said Isabella to her father a right to use the land during his natural life. This contract is not set out in the record, and we cannot determine its legal effect, but if its execution was proven, the court committed error in excluding it. In regard to this document, we will say that if it amounted to a contract on the part of Isabella Gash to sell or convey her interest in the land to George M. Morris in consideration of the $100 which it appears she received at the time it was signed, then upon proper pleadings, it may be specifically enforced against her children, Ella Elsie Gash and Oliver Mate Gash. [Kirkpatrick v. Pease, 202 Mo. l. c. 492.]

It seems that the trial court, notwithstanding it excluded this contract, gave some effect to it by decreeing a lien of $100 in favor of defendant Margaret Morris against the interests of plaintiffs Ella Elsie Gash and Oliver Mate Gash. We do not condemn this part of the decree, not having any evidence before us as to the legal import of the contract. The lower court will see that this contract is properly construed. upon a retrial of this cause.

It is contended by the plaintiff Edward Gash that he has a curtesy interest in the whole eighty-six acres, in controversy, as the husband of Isabella Gash; but his claim must be wholly rejected for the reason that his wife never had such a seisin or title to this property as would bring the right of curtesy into existence. The only title Isabella Gash ever possessed during her lifetime was a right to establish by suit a resulting trust on account of the investment of her funds in this property, and as the property was in the adverse possession of the father under a deed which did not in terms create in her any legal or equitable estate, no right of curtesy became vested in her husband. [1 Tiffany on Real Property, sec. 205, 287; Dozier v. Toalson, 180 Mo. 546, l. c. 551; Ellis v. Kyger, 90 Mo. 600.] In Dozier v. Toalson, supra, a conveyance was made to the wife in which the grantor reserved the possession, use hnd income of the property during the life of the grantor. In that case the wife died during the lifetime of the grantor, and we held that she never acquired such seisin in the land as would create in her husband an estate by the curtesy; so that with stronger reason it may be said that a mere right to sue for the establishment of a resulting trust would be wholly insufficient to create such a seisin in Isabella Gash as would vest title by curtesy in her husband.

In order to correctly ascertain the interests of Dora E. Evans, Eliza E. Shiflett and Sarah J. Gash in the six acres which they did not convey to their father, and to further determine the interests of plaintiffs Ella Elsie Gash and Oliver Mate Gash (if it be found that these children of Isabella Gash have an interest), it will be necessary to ascertain what amount was paid by their father George M. Morris for the whole 86 acres in controversy, and to compute the value of his life estate in the proceeds of the sixty acres which was sold to raise funds with which to purchase this property. Prom the record it appears that the said George M. Morris died September 29, 1906, at the age of fifty-nine years, Therefore he was thirty-eight years old at the time he sold the sixty acres; and the value of his life estate at that time in the $650’, the proceeds of said sixty-acre tract, can be ascertained by the usual method of computing life estates. The value of his life estate by the curtesy in the sixty acres owned by his first wife, together with the value of the one twenty-fifth interest in .remainder therein which he inherited from his deceased child, should be subtracted from the $650 and the remainder will represent the .amount of funds belonging to the children of his first wife which he invested in the eighty-six acres in controversy ; and will form the basis for determining their right to establish a resulting trust in such of the land as they did not convey or contract to convey to their father during his lifetime.

The plaintiffs Evans and Shiflett are entitled to the same ratio of interest in the six acres that they would have held in the whole tract had they not conveyed eighty acres thereof to their father.

As hereinbefore stated, George M. Morris, after his purchase of the land in controversy, married the defendant Margaret Morris, of which marriage five children were born, to-wit, the defendants Marion Morris, Edward Morris, Lola Morris, Ivy Morris and Alpha Morris, all minors. The children by the second marriage are of course tenants in common with the plaintiffs as to such interests in'the land in controversy as plaintiffs cannot recover as a resulting trust; but neither the widow nor the children by such second marriage can have any homestead right in any interest or share in the property to which plaintiffs succeed in establishing a resulting trust. [White v. Drew, 42 Mo. 561; Miller v. Miller, 148 Mo. 113.]

The pleadings in this cause do not demand the setting off of dower or homestead rights, and we have not considered that point in the briefs filed herein.

For the numerous errors committed by the trial court, as hereinbefore announced, its judgment is reversed and the cause remanded for a new trial.

Kennish, P. Jand Perriss, J., concur.


source: Caselaw Access Project

author: FERRISS, J.

license: Public Domain

text:
    J. M. FIELDS, Appellant, v. H. A. BOLLINGER.
    Division Two,
    April 11, 1911.
    1. ERRONEOUS EVIDENCE: Admitted on Abandoned Issue. ■Where the only question presented to the appellate court for decision relates to the defense of the Statute of Limitation, objections to testimony on other points will not be considered.
    2. COLOR OF TITLE: Unrecorded Deed. Facts and circumstances showing sufficient notoriety of claim, and its nature and extent, will impart to an unrecorded deed color of title. Where the land was occupied and part of it in cultivation at the time plaintiff bought, and the testimony showing plaintiff’s possession under a deed not entitled to be recorded is practically undisputed, the recording of the deed was not essential to defendant’s claim under color of title.
    3. JUDGE: Disqualification: Formerly Counsel for One of Parties. While acting for counsel for Phelan and examining the records to ascertain the title of other lands a lawyer stated to Phelan that a sheriff’s deed conveying the lands in suit was void because the certificate of the circuit clerk of the sheriff’s ackowledgment was not indorsed thereon, and a year later Phelan received a deed from the person whose title the sheriff’s deed purported to convey, and thereafter Phelan conveyed to plaintiff. That lawyer subsequently became circuit judge. Held, that as it does not appear that he had been counsel for either party, or for anyone under whom they claim, in any matter concerning the land in suit, he was not disqualified to try the suit to quiet the ■ title.
    Appeal from Stoddard Circuit Court. — Hon. J. L. Fort, Judge.
    Affirmed.

      Andrew W. Hunt for appellant.

      N. A. Mozley for respondent.
   FERRISS, J.

— Action under section 650, Revised Statutes 1899, to ascertain, determine and quiet title to lot one and the east half of lot two of the northeast quarter of section one, township twenty-seven, range eleven, in Stoddard county, Missouri.

Defendant’s answer was (1) a general denial; (2) a plea of no consideration for the deed under which plaintiff claimed title; (3) a plea of the Statute of Limitations.

John E. Liles was the common source of title. Plaintiff, in support of his claim of title, offered in evidence a deed from John E. Liles, dated September 12, 1894, to Walter Phelan, conveying the land in controversy, and a deed from said Phelan, of date July 6, 1896, conveying said land to plaintiff; after which plaintiff rested.

Defendant rested his case largely upon his plea and proof of adverse possession of said land for more than ten years before the institution of this suit. He deraigns title by and through mesne conveyances from Ebenezer G-. Liles, whose title was based on a sheriff’s deed, dated December 2, 1871, purporting to convey the interest of John E. Liles in said land, upon which deed was not indorsed the certificate of the clerk of the • circuit court of its acknowledgment by the sheriff, and, therefore, was adjudged by the court to convey no title to said Ebenezer G. Liles. In 1895 George W. Miller and Thomas J. Miller came into possession of the land by virtue of a warranty deed from the widow and heirs of H. H. Myerdick, who claimed from and through Ebenezer G. Liles by successive warranty deeds, and the land was held adversely by successive occupants, defendant’s grantors, until conveyed to defendant by warranty deed, dated March 24, 1904, from O. R. Reynolds. The aforesaid deed to the Millers from the Myerdick heirs, executed and delivered in May, 1895, was not recorded until December 30, 1903.

The proof seems to be clear, and is practically undisputed, that the defendant and those under whom he claims had been in actual, open,. notorious, exclusive, continuous and adverse possession of said land, under color of title, exercising acts of dominion over it, making improvements thereon, receiving the profits and paying the taxes, for about twelve years prior to the institution of this suit; and the court so found.

There is no. evidence whatever that plaintiff, before instituting this proceeding, asserted any right in himself adverse to defendant’s claim, or questioned or disputed the same. It appears from the evidence that Walter Phelan, plaintiff’s grantor, received a deed to the land from John E. Liles in 1894, but that no money consideration passed. Phelan, it seems, made the discovery that the sheriff’s deed to Ebenezer O'. Liles was defective for lack of acknowledgment. He reported the matter to John E. Liles, whom he induced to make him a deed to this land, Liles thinking, as Phelan testified, that he still had some interest therein undisposed of. Phelan conveyed to plaintiff Fields in 1896, but admitted that no money passed. As to the consideration for the deed, Phelan testified as follows: “Mr. Fields had agreed to take his saloon to Ardeola, in this county, when I was running for county judge, and to use his whiskey and influence to have me elected, and I thought, if elected, it would be worth $1000' to me.” Question: “And in consideration for that service you made him this deed, in which you recited $1000' consideration?” Answer: “I don’t know that the whiskey was all of it. He was going up there, and have the whiskey on the ground, and I don’t know that he was going to use it for my benefit, but he was going to do his best for me; but I found out since that he never did anything.” Question: “There was no consideration at all for it?” Answer: “Well, I guess I had a contract with him.”

The corirt below held that the sheriff’s deed conveyed no title because of the defective acknowledgment, but gave defendant judgment on a finding that he and those under whom he claimed had held the land in open, notorious, exclusive, continuous, adverse possession for more than ten years.

The plaintiff, on appeal to this court, claims: 1. That the court erred in its rulings on the introduction of testimony, in that it admitted incompetent evidence and also permitted defendant to ash, improperly, leading questions. 2. That the court erred in refusing declarations of law offered by plaintiff. 3. That the deed under which defendant claims his color of title, made in 1895, was not recorded until December, 1903. 4. That the trial judge .was disqualified to try the case.

I. As the only question presented to this court concerns the defense of the Statute of Limitations, the objections to testimony on other points need not be considered. So far as this defense is concerned, we find no prejudicial error in the rulings on evidence.

II. The ruling of the court in refusing the instructions offered by plaintiff was correct in view of the finding on the defense of the Statute of Limitations.

III. In view of the evidence on the question of adverse possession, we hold that the recording of the deed from the Myerdiek heirs was not essential to the claim of color of title. As was said by this court in Ozark Plateau Land Co. v. Hays, 105 Mo. 143, color of title need not necessarily consist of recorded instruments. Facts and circumstances showing sufficient notoriety of claim, and of its nature and extent, may sometimes impart to an unrecorded document the effect of color.” This ruling was approved by Valliant, J., in Plaster v. Grabeel, 160 Mo. 669. In the present case the testimony showing defendant’s adverse possession is practically undisputed. The land was occupied and was in part cultivated. The plaintiff got his deed in 1896, but it does not appear that he made any claim to this land until he brought this suit.

• IV. It seems that the trial judge, the Hon. J. L. Fort, while practicing law in 1893, was counsel for Walter Phelan, the person to whom the original owner, John E. Liles, made a deed in 1894, in a matter concerning some other lands in the same county, and that while looking over -the records in relation to that matter, Jndge Fort observed that the sheriff’s deed to the land in controversy lacked a proper certificate of acknowledgment, and stated to Phelan that he considered the deed void. This was a year prior to the date of the deed from Liles to Phelan. It does not appear that Jndge Fort had been counsel for either party to this action. The remark attributed to him was not made in reference to the matter in which he was acting as counsel. The objection was properly overruled.

V. The evidence is ample to sustain the judgment, which is, therefore, affirmed.

Kennish, P. J., and Brown, J., concur.


author: KENNISH, P. J.

text:
    THE STATE ex rel. B. STONE, Collector, v. CHRISTIAN COUNTY BANK, Appellants.
    Division Two,
    April 11, 1911.
    1. ASSESSMENT: Increase by Board of Equalization. If the county board of equalization finds no inequality in the assessment of property as made by the assessor, but does find that all real and personal property in the county has been assessed ten per cent below its true value, the board may by one order Increase the assessor’s valuation of all property in the county by ten per cent.
    2. -: -: Judicial Act: Collateral Attack.' The statute authorizes the county board of equalization to so equalize the valuation and assessment of all property in the county “that each tract of land shall be entered on the tax book at its true value,” and “to raise the valuation of all such tracts or parcels of land and any personal property, such as in their opinions have been returned below tbeir real value, according to tbe rule prescribed by this chapter for such valuation.” The assessor made return of his tax book, and the county board made this order: “Ordered by the board that real and personal property situate in Christian county be raised ten per cent.” Hela, that the board had power to make this order and thereby raise the assessment upon all property in the county ten per cent. Held, also, that the board in making the order was acting in a judicial capacity, and its action is not subject to collateral attack, such as by an answer denying the validity of the order by a taxpayer who is being sued for his taxes and who tenders all the taxes due except the ten per cent increase.
    3. -: -: Notice. Notice, by publication in a newspaper, given by the board of equalization, that it would meet on the fourth Monday in April to heaj reasons, if any, why the increase of ten per cent in the valuation of all property in the county should not be made, is suffici mt notice to each individual taxpayer in the county, and an increase in the valuation of defendant’s property was not invalid because no.further notice was given.
    Appeal from Christian Circuit Court. — Hon. John T. Moore, Judge.
    Affirmed.

      Sullivan & Barrett for appellant-

      Jacob Hartley and Arthur Farrar for respondent.
   KENNISH, P. J.

— This suit was instituted by the collector of the revenue of Christian county against the Christian County Bank, appellant herein, to recover back taxes in the sum of three hundred and forty-two dollars and forty-seven cents, for the year 1905.

The petition is in the usual form.

The answer alleges, as a defense, that the defendant bank was duly assessed by the assessor.of the county and the valuation of the defendant’s property, as listed by the defendant, was placed upon the assessor’s books, without change. That the county board of equalization,' at its annual session in 1905', equalized the assessments, as shown by the assessor’s books, and made no change in the valuation of the defendant’s property' as given in said list and as shown in the assessor’s books, but that said board, before adjournment, made and caused to be spread upon the records, the following order, to-wit: “Ordered by the board that real and personal property situate in Christian county he raised ten per cent.”

It is further alleged that the tax books were adjusted and the taxes extended in conformity with said order and that by reason thereof the defendant’s property was placed upon the tax books and valued at the sum of nineteen thousand nine hundred and ninety-eight dollars, instead of eighteen thousand one hundred and eighty dollars, as shown by the said assessment list; that said order of the board of equalization is illegal and void; that the amount of taxes for which the defendant is legally liable for said year is two hundred and eighty-three dollars and four cents, which sum defendant tendered.to the collector and again tenders in court.

It is further alleged that no notice of the increased valuation of defendant’s property, so attempted to be made, was given to defendant, other than the publication of said order in the newspapers of said county, and that defendant is in no wise liable for the taxes levied on.the additional valuation extended on the collector’s books by virtue of said order.

A general demurrer to the answer was filed and sustained. The defendant refused to plead further and final judgment was rendered against it as prayed in the petition. From that judgment the- defendant appealed to this court.

No brief has been filed nor appearance entered by respondent in this court.

It appears from appellant’s brief that the pleadings in the trial court were agreed upon and that a case was made to determine the validity of the order of the county board of equalization assailed in defendant’s answer. No point is made as to proper parties to the suit or as to the validity of the assessment. Appellant states in its brief that, “The sole question to be determined is the validity of the order of the county board of equalization made on the 7th day of April as its last act before final adjournment and which is as follows: ‘ Ordered by the board that real and personal property situate in Christian county be raised ten per cent.’ ”

In making the order raising the valuation of the property for taxation in Christian county for the year 1905, the county board of equalization was acting in a judicial capacity, and, under the well settled rule of law applicable to judgments, its action was not subject to collateral attack. [Black v. McGonigle, 103 Mo. 192; State ex rel. v. Vaile, 122 Mo. 33; State ex rel. v. Western Union Tel. Co., 165 Mo. 502; State ex rel. v. Lumber Co., 198 Mo. 430.]

In the case of State ex rel. v. Western Union Tel. Co., supra, l. c. 517, the court said: “The defendant cannot avail itself of these cases, for the reasons, first, that it seeks to raise the question of discrimination by- a defense to an action at law to collect the taxes, and thereby collaterally attacks the judgment of the board of equalization; second, that such question can only be raised by a direct attack, in equity, and then only upon the condition precedent that it pays or tenders the amount justly due and only asks- to have the collection of the excess restrained.”

And in State ex rel. v. Lumber Co., supra, discussing the same subject, l. c. 439, the court said: “The act of the board in raising the assessment being judicial in its character is not subject to attack in this collateral way.”

Section 11403, Revised Statutes of 1909, confers power upon the county board of equalization, and makes it the duty of the board “to equalize the valuation and assessment of all such property, both real and personal, within their counties respectively, so that each tract of land shall be entered on the tax book at its true value.” And in the next succeeding section it is made the duty of the board to “raise the valuation of all such tracts or parcels of land and any personal property, such as in their opinion have been returned below their real value, according to the rule prescribed by'this chapter for such valuation.”

'Discussing this power of the board in the case of Black v. McGonigle, supra, l. c. 198, this court said: “The law, however, clearly contemplates that all property shall be.assessed at its true value (Sec. 6711), and if, in the opinion of the board, this has not been done, then the assessment may be increased so as to comply with the spirit and intention of the law. "Where the lands in one township have.been assessed at their true value, and those in another township have been assessed at a uniform lower rate, then the assessed value of the lands in the latter may be brought up to the standard of the former, and that is what appears to have been done in the present case. In such case it is not necessary to specify each parcel- of land thus increased. It is sufficient to increase the assessed value of all the lands in the particular township by one-order; and this increase may be made on a percentum basis. Says Cooley: In raising or reducing the assessment of a particular district, it is sufficient for the board to designate a percentage of increase or decrease.’ [Cooley on Taxation (2 Ed.), 122.]”

Under the foregoing provisions of the statutes it is made the duty of the board of equalization not only to equalize the valuation and assessment of all the property in the county, but to equalize it “so that each tract of land shall bo entered on the tax book at its true value,” and it shall “raise the valuation of all such tracts or parcels of land and any personal property, sucli as in their opinion have been returned below their real value, according to the rule prescribed by this chapter for such valuation.” The only limitation upon the power of the board in thus fixing the value of the taxable property is that it “shall not reduce the valuation of the real or personal property of the county below the value thereof as fixed by the said state board of equalization.”

This court held in the McGonigle case, supra, that it was within the power of the board to raise the valuation of the real estate of the county by townships, upon a percentage basis, and if the board finds no inequality in the assessment, but finds that both real and personal property have been assessed ten per cent below its “true value,” no valid reason appears why the board may not properly increase the value by one order as was done in this case.

The notice given by the board of equalization that it would meet on the fourth Monday of April to hear reasons, if any, why the increase in the valuation should not be made, was in accordance with the requirements of section 11404, Revised Statutes of 1909, and was sufficient.

The board of equalization was undoubtedly possessed of jurisdiction to increase the valuation of defendant’s property listed for taxation, and its action, under the facts of this case, is not open to collateral attack in the defense of a suit for the collection of the-taxes.

The demurrer to the answer was. properly sustained and the judgment is accordingly affirmed.

Ferriss, and Brown, JJ., concur.