author: LAMM, J.

text:
    WILLIAM R. DUDLEY et al., Appellants, v. S. MARGARETHA R. CLARK.
    Division One,
    March 3, 1914.
    1. LIMITATIONS: Pleading. A general denial is sufficient to invoke any special or general statute of limitations as a defense in ejectment; and a plea of the thirty-year statute will not amount to a waiver of the ten-year statute where there is a general denial.

      2. --: Against Church Trustees. Sec. 1886, R. S. 1909, declaring that “nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to the State,” was intended, among other things, to preserve lands given, granted, sequestered or appropriated to a charitable use to that use; it was not intended to be a weapon in the hands of heirs or others to prevent the acquisition of land for a pious or charitable use by adverse possession and limitation. It is not available, as against the purchasers from the trustees of a church, to persons who sue in their own individual right on a bare legal title which they claim was cast upon them by descent as heirs of their ancestors, who, they claim, bought it with their own money, though they were themselves trustees at the time the property was purchased for church uses and deeded to them. The statute is meant to aid a church or other pious use to hold its lands in spite of other statutes of limitations; not to forbid it gaining title by limitations.
    3. -: ———; Suing as Individuals: Recovering as Trustees. Plaintiffs cannot ask for possession of land as heirs in their individual right, and get possession as trustees; and hence, they cannot invoke the doctrine that, as to an express trust, the Statute of Limitations, as between cestui que trust and trustee, does not run in favor of either (as against the other), for it is wholly inapplicable where plaintiffs do not sue as trustees and never were such.
    4. -: In Favor of Church Trustees. Continuous, open and adverse possession of church property by trustees appointed by the church according to its uses, for the statutory period, established title in them by limitations. Nor does the fact that members of the church society shared permissively in the possession, as contemplated by the trust, militate against the possession of the trustees or operate in favor of those who claim through a paper title. Nor is it any of the concern of such claimants that there were irregularities in the appointment of the trustees, who accepted their appointment and were recognized as such by the society electing them, and by their authority and direction sold the property to defendant.
    Appeal from Audrain Circuit Court — Hon. James D. Barnett, Judge. *
    Arrirmed.

      Robertson & Robertson for appellant.
    (1) Under and by virtue of the terms of the deed from Barnett to plaintiff’s ancestors, and from the fact that the grantees in said deed furnished the purchase price for the land, the grantees took a title in fee simple to said lands. Draper v. Minor, 36 Mo. 290. Independent of the fact that plaintiffs’ ancestors paid for the land with their own funds and were never repaid by the church, the title to the lands, upon the death of the trustees named in the deed passed to the plaintiffs as heirs of the said.trustees. Ewing v. Shannahan, 113 Mo. 188; Hook v. Dyer, 47 Mo. 214; Newman v. Newman, 152 Mo. 409; Underhill on Trusts and Trustees., 383; Hill on Trustees (Am. Notes), 442; Schenck v. Schenck, 16 N. J. Eq. 174; Perry on Trusts (5 Ed.), sec. 341. (2) Under the terms of the deed from Barnett to Pearson, Dudley and Ward, the property was devoted to religious worship, for the Davis Fork Baptist Church. That means, as a matter of course, so long as that, church organization should use the property for that purpose and so long as the property should be used for church purposes. During the time that the property was used for church purposes, it was sequestered or appropriated to public, pious and charitable use and under the terms of section 1886, the Statute of Limitations would have no operation. Strother v. Barrow, 246 Mo. 241. “It is well settled that a subsisting recognized and acknowledged trust, as between the trustee and cestui que trust is not within the operation of the Statute of Limitations.” Wood on Limitations (3 Ed.), sec. 200. The common source of title in this case is Thomas Barnett, He conveyed the land to certain persons, to be used for a church house. This voluntary society or church congregation used this property with the consent 'of the grantees. It is fundamental that as between the trustee and the beneficiary, the Statute of Limitations does not apply. Perry on Trusts,, secs. 863-864; Wood on Limitations (3 Ed.), sec. 203; Bnren v. Burén, 79 Mo. 538. The use of the property by the congregation was not adverse to the grantees or their heirs, but was held by and with their consent and for the purposes named in the deed, and it was in no sense an adverse holding. The church organization or congregation not being incorporated had no legal entity. It could not sue or be sued and of course it could not gain rights which it could assert against the owners of the property by limitation or otherwise. Riffe v. Proctor, 99 Mo. App. 607.

      Faunileroy, Cullen & Say and Barclay & Orthwein.

    The testimony in this case shows that A. F. Dudley died in 1875, that Pearson died in 1880, and that Ward went to California prior to 1880 and ceased to be a trustee in October, 1880, and died in 1883. It is therefore clear that their heirs are barred by limitation. Other trustees were appointed and they had the actual possession of the property, claimed it as their own, and the congregation also claimed it, and for thirty years the rights of these plaintiffs were openly defied. These plaintiffs never acted as trustees, never claimed to act as trustees, and the relation of trustee and beneficiary never existed between them and the congregation, and even now they do not sue as trustees. The title to the land in controversy in this case was claimed by the succeeding trustees and by the congregation for more than thirty years, and in such case adverse possession confers title. Baptist Church v. Harper, 77 N. E. 778; Church v. Schoolcraft, 65 N. Y. 145-; University v. Church, 65 Atl. 398'; Perry v. Coal Co., 138 Fed. 769; 2 Devlin on Real Estate, p. 1414; Phelan v. Brady, 119 N. Y. 587, 8 L. R. A. 211; Randolph v. Meeks, Mart. & Y. 58; Macon v. Sheppard, 2 Humph. 335; School District v. Taylor, 19 Kan. 287;. Everts y. Rose G-rove, 77 Iowa, 37, 14 Am. St. 264.
   LAMM, J.

Plaintiffs (as heirs of a group of church trustees, as presently appears) sue in the Au-drain Circuit Court in two counts, one in ejectment and one under former section 650 to quiet title — the property in dispute being lot one of block eighteen in the town of Mexico in Audrain county. There were two defendants, one was dismissed and the answer of the other, S. Margaretha R. Clark, is first a general denial, then she pleads her own title and follows that by a plea of the thirty-year Statute of Limitation, and title by limitation under the “general laws” of Missouri, averring, among other things, that ‘ she and those under whom she claims have been in the open, notorious, exclusive, actual and adverse possession of said land for forty years.” The prayer of her answer was that the court “adjudge and decree that she has the title to said land and that the defendants (sic) have no interest in said land, and are not entitled to the possession thereof.” (N. B.: Evidently “defendants” is a misprint for plaintiffs.)

The reply put at issue new matter.

On a trial to the court without a jury “all the issues” were found in favor of defendants (the clerk failing to note that one of the defendants had been dismissed) and the following judgment was rendered on that finding:

“It is therefore considered, ordered and adjudged by the court t' ^ Uaintiffs take nothing by their writ, and that defendants go hence without day, and have and recover of ,and from the plaintiffs, as well as George Pearson, surety on cost bond, the costs herein laid out and expended, and that execution issue therefor.”

It will be obsprved that though such finding would have supported a decree of title as prayed in defendant’s answer and in the second count of plaintiffs’ petition, yet the court stopped at the bare general finding and entered no affirmative decree ascertaining and determining the estate or interest of the respective parties to the suit in the real estate as is contemplated by Section 650, Revised Statutes 1899. That is, it ignored the requirements of that section. [Armor v. Frey, 226 Mo. l. c. 663 et seq.] Respondent filed no motion for a new trial. Resting content with that judgment, she took no appeal and in her brief here her counsel contend that the second count of the petition was practically abandoned by plaintiffs. Plaintiffs in turn in their brief in reply do not take issue on that contention but, as we grasp it, present questions here, as they did below, in such a way as to lend color to that view of it. Hence, without deciding the particular point of abandonment, we think on the premises stated that the appeal may be well ruled as if the second count of the petition fell out of the case, and that the count on ejectment stood alone to be reckoned with. Accordingly, for appellate purposes, the cause may proceed as if that were so.

Defendant asked no instructions. Plaintiffs asked two which were refused. If the facts entitled plaintiffs to recover then these instructions should have been given. Otherwise, otherwise. In that view of it the instructions need no further attention and will not be reproduced.

Attending to the facts, the ease is this: Many years ago in the first half of the last century the members of that great denomination in the United States looking to Roger Williams as its mentor and founder were much agitated by theological dogmas relating to the doctrines of election and predestination, some taking such an ultra-conservative view of those questions as precluded the wisdom of Sunday schools, missions, etc. They were known as Primitive Baptists. In some way they got the name of “Hardshells” which (given at the outset facetiously to indicate lack of expansiveness) has become, as not infrequently happens, an allowable historical name. [Vide tit., “Baptist,” Web. New Internat. Diet.] That agitation caused a schism in the Baptist family in Audrain county as elsewhere. At some time before 1853 the Hardshell or Primitive Baptists, as distinguished from the main body, to-wit,' the Missionary Baptists, organized a society known as the Davis Fork Regular Baptist Church and, in the name of certain trustees, to-wit, Pearson, Ward and Poage, took title from one Harrison and wife Rebecca to lot eight, in block sixteen, in the town of Mexico —the habendum of that conveyance reading: “To have and to hold the above designated lot of land for the uses- and benefits of the said Davis Fork Church and meeting house so long as the church continues to hold the doctrine of election and predestination, and the said James and Rebecca Harrison do forever warrant and forever defend the right and title to the aforesaid lot of ground to the aforesaid trustees or their successors in office for the use and benefit of the said Davis Fork Church against the lawful claim or claims of all and every person whatsoever.”

In 1873, preparatory to a sale, and the acquisition of a new situs and building another meeting house, the grantor in the foregoing deed made a quitclaim of the lot to the same trustees in which the above conditions were referred to and the grantor formally by apt narration released the grantees- as trustees from them for an expressed nominal money consideration. Whether trustee Poage died, was removed or what became of him we do not know, but on a certain day in March, 1873, trustees Pearson and Ward, on behalf of the church, and one Dudley (who also executes as a trustee -of the Davis Fork Baptist Church) made a deed with general clauses of warranty to one Evans of part of lot eight, in block sixteen, in the town of Mexico. It is not clear what form of deed was made to the other part of the lot, but evidently it was sold and conveyed by the same trustees (leaving out Poage and including Dudley) at about the same time. As we make out, the son of Pearson, trustee, purchased it and trustee Pearson went his security for the payment. We think so because of the testimony from one of plaintiffs’ witnesses, Pearson (another son of the trustee by that name), to-wit:

“I remember the property was sold down there about the time they built the new church. My brother bought part of it and my father paid for it. It was sold on credit. My brother bought some of it and I think my father went his security. I don’t think my father bought any, I am not sure; he might. If he bought any of the first tract from the trustees I do not know it, I don’t remember it at all. John Y. Pearson bought some of it and John A., my father, if he bought any I don’t know.
‘ ‘ The old church split up over the missionary cause, when they were worshipping at Hopewell, and my father and several others withdrew from that church and browsed around the best they could until they got able to build another one.”

So, too, we find that in August of that year, 1873, a report spread on the church record is made by a committee “appointed to sell the old meeting house and grounds and erect a new one,” which committee, on the coming in of that report, was discharged. That report shows the amount realized on the old house and lot (the whole lot) was $1,056.40. We will recur to this report again. Going back a little: Prior to that time, in March of that same year, one Barnett sold and conveyed to Pearson, Dudley and Ward, trustees for the Davis Pork Baptist Church, in consideration •of $300 paid, lot one in block eighteen of the town of Mexico (the land in dispute). This conveyance was in the form of a quitclaim deed. It had no condition precedent or subsequent, no clause of reverter, and its habendum ran to “said parties of the second part” (to-wit, Pearson, Dudley and Ward as trustees for the Davis Fork Baptist Church) “and their successors forever.” The transfer by the same trustees of part of the old lot to Evans seems to be simultaneous with the acquisition of the new lot from Barnett.

As it is contended by appellants' that trustees Dudley, Ward and Pearson paid the consideration for the Barnett conveyance out of their own pockets and that it was never repaid to them, let us look to that. The testimony relied on to establish that ancient fact we will not reproduce for it is anything but certain, definite or cogent. Much of it is in the nature of hearsay, or inferences or conclusions. There is no attempt to show the whole transaction in its details. No records or books of account were introduced tending to show such fact. No witness who participated in the transaction as an actor testified to it as of his, personal' knowledge. The only bit of substantial evidence tending to show the payment fell from the lips of one of the sons of the original trustees named in the Barnett deed, Pearson, who saw his father count out $125 to pay for the lot and who testified that the lot was paid for sometime before the church had disposed of its old meeting house and grounds. He had seen, he says, an old contract in his father’s hands (which his father threw away as worthless) relating to such purchase, but we think the testimony conclusively shows that either at that time or shortly thereafter the Barnett lot was paid for out of the sale of the old grounds or subscriptions. We say so because in August, 1873-, at the time the sale and building committee was discharged, several significant things happened as shown by the church records, to-wit: Mr. Pearson, the very trustee whose son testified his father had paid $125 on the lot and who seems to have been chairman of the building committee and the chief manager, made a report to the congregation which purported to cover the whole matter of acquiring the new lot and building the new church and of disposing of the old church and lot. In that report he states that the old house and lot sold for $1056.40; that the amount realized to date on subscriptions was $1419.56; that the entire cost of the (new) house, fixtures, lot, fencing, painting, etc. was $2769. 09; that deducting therefrom cash realized from the old house and lot, and that collected on subscriptions left a balance of $346.14; that the cash on hand was $26.50 and the balance due on the transaction was $319.64. Now at that same church meeting, when the committee was discharged, trustee Pearson was authorized to “borrow” money to pay the balance “due for house,” i. e., the new house, and execute his note “on behalf of the church” for the same, and furthermore a Mr. Rothwell was appointed “to collect balance due on subscription list and when collected to hand it over to John A. Pearson for payment due on the house.” There the story from the church record ends in 1873. Whether Pearson executed that note for borrowed money to pay the balance due on the house and whether Rothwell collected enough on subscriptions to pay that balance we do not know, but it is apparent enough that Pearson, trustee, in his report makes no claim of indebtedness to himself personally for having paid for the church lot at some prior time. He seems to have handled the cash realized from building subscriptions and from the sale of the old property. He seems to have been security for his son for the purchase price of part- of the old lot and had full opportunity to recoup any advancements made by him and his cotrustees on the purchase of the lot. It is clear, also, that no claim thereafter was made on that behalf by anyone at any time and the presumption is, we think, that such debt, if existing, was satisfied through opportunities, ways . and means this record shows then existed. If anything is lacking to justify that conclusion it is supplied by the testimony of appellants’ chief, witness as follows, speaking of the three trustees who took title to the lot now in dispute, vis.: “Those three men took their own money and paid the $300 for this property, with the expectation of getting it back when the property was sold — the old church property.” "Where there is a will there is usually a way. Where opportunity and disposition meet results are bred. With that “expectation” and with the means of realizing it potentially' in their hands and with the subsequent silence of many lustrums we can not decide this case on the theory that the facts show that those trustees, Ward, Dudley and Pearson, paid for the lot out of personal means and were never reimbursed.

Coming to another phase of the case, the record shows that trustee Dudley died in 1875 while on the road to California to make a new home; that trustee Ward died in California in 1883, having become a resident of that State and that his estate was settled there. It shows furthermore that in 1880 he took a letter of “dismission” from the Davis Fork Baptist Church. Trustee Pearson died in 1880 while a member and trustee of the church.

Plaintiffs are the heirs and descendants of Dudley, Ward and Pearson, those trustees. They claim title by descent cast, as individuals and not as trustees.

As bearing further on Baptist church usages and customs, it is shown that in 1880 one McGee at a congregational meeting was dismissed as trustee and one Conger appointed; that in 1893 one Price was appointed at a like meeting to fill a vacancy in the trustees; that in 1898 by a like meeting one Palmer was elected trustee to fill a vacancy; that in 1899 one Huff was elected trustee in the same way to fill a vacancy; that in 1901 one McCully was elected in the same way to fill a vacancy caused by the resignation of Price, trustee; so in 1903 one Bradley was elected to fill a vacancy caused by the removal of Palmer and one Clark was chosen to fill a vacancy caused by the removal of Huff.

There were a written constitution and by-laws of the Davis Fork Baptist Church offered in evidence, but they have not been abstracted. Whether theyprescribed rules for holding and conveying church property we do not know. But historically we know and the record in this case shows that Baptist churches are strictly democratic bodies. The oral testimony shows that “they recognize no authority on earth above the individual church. Each church is supreme in itself” and has what is “known as the congregational method of organization. ’ ’

In 1905' the question of selling the property in dispute and buying another lot to build on was considered in a church meeting and a committee was appointed to investigate and report, but the matter seems to have ■fallen through and was not pursued at that time. In the course of time the church building, which was of brick and built in 1873, was out of repair and was, we infer, of little or no value. The lot, however, had become valuable for business purposes and the town was putting expenses upon the property for sidewalks, street pavements, etc. The membership of the church had dwindled by death, removals and dismissions, services were never abandoned but in- late years were sporadic and the society .as a factor in the moral amelioration of the town of Mexico had become a vanishing equation. So hard put to was the congregation that it became necessary in 1907 to borrow, by a deed of trust on the property, several hundred dollars to pay for paving the street in front of the lot. This trust deed was executed, as other church conveyances had been, by the then acting trustees on the vote of the members at a meeting of the society. Finally in March, 1909, at a meeting' of all the remaining members, resolutions were adopted, and spread of record, to the effect that the then trustees as successors of the original ones sell the property. Presently by a deed narrating those resolutions and pursuant thereto the property was conveyed to defendant for a cash consideration of $2900, subject to said deed of trust. The terms of these resolutions and of the pursuant deed will not become material until, if ever, we get by the question of plaintiffs’ title and reach that of defendant’s, hence are omitted for the present.

Over the objection of defendant, who had no part or parcel in the transaction, plaintiffs were allowed to show that the present members of the society known as the Davis Pork Regular Baptist Church divided the purchase price share and share alike among themselves. Defendant was. put in possession under her deed and on December 1,1909', the heirs of the trustees who originally took title instituted this suit with the result hitherto noted.

The whole trend of the testimony is to the effect that the trustees, as reorganized from time to time by filling vacancies by the vote of the meetings of the society, had continuous control of the church building and grounds, claimed title and held possession openly and adversely as of right for church purposes at all times since the original trustees severed their connection with the society by death or removal. It further tends to show that the plaintiffs or none of 'them at any time after the death or removal of their respective ancestors claimed any right of possession or title or exercised any acts of ownership' over the property until they brought this suit nearly thirty years after the last of the original trustees died. Plaintiffs made no attempt to show that anything in the usages, customs, constitution or by-laws of the Davis Pork Regular Baptist Church or any other Baptist congregation militated against appointing successors to trustees in case of death or removal, or against such acting trustees conveying on the vote authority and demand of the congregation interested. In this case, so far as the history of the title to any real estate of the Davis Pork Regular Baptist Church is concerned, that course had been adopted from time to time, as of course, without a murmur of dissent, and until this case was brought has always been acquiesced in by all concerned.

In view of such record we are of opinion that the judgment below must be affirmed. Because,:

I. Of adverse possession and limitations.

(a) It is contended for respondent that adverse possession and limitations are a complete defense-; contra for appellants that respondent having pleaded the thirty-year and not the ten-year statute, the facts do not bring the case within that of thirty years, hence that of ten years can not be invoked. Is there substance in that view? We think not, because:

Granted that respondent pleads the thirty-year statute of limitations and granted that the facts do not bring the case strictly within the purview of that statute, but looking further we find the answer also pleads title by limitations under the “general laws.” In that view of it if a plea were necessary the plea, scant as it is, is present. However, no- plea of the general (or any special) statute of limitations was necessary to invoke its aid in ejectment. Defendant may raise such defense under a general denial when such denial is present in the answer, as here. [Nelson v. Brodhack, 44 Mo. l. c. 600 et seq.; Coleman v. Drane, 116 Mo. 387; Stevenson v. Smith, 189 Mo. l. c. 466; Bird v. Sellers, 113 Mo. l. c. 587 et seq.; Collins v. Pease, 146 Mo. l. c. 139.]

If it were to be conceded to counsel that there was a plea of the thirty-year statute and none of any other, yet such concession would not avail them as a waiver of the ten-year statute in the face of the general denial, which raises the issue of itself in ejectment.

(b) There is a statute, section 1886, Revised Statutes 1909 (apparently borrowed from Vermont), which took effect August 1, 1866, reading:

“Nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this State.”

It is argued for appellants that a proper construction of that statute precludes the defense of adverse possession. Is there substance in that view of it? We think not, because:

In ejectment a plaintiff must recover, if at all, on the strength of his own title, hence plaintiffs- must show a legal title in them or be east. Hence the question at this- stage is narrow, to-wit, whether appellants, if they ever had legal title, lost it by adverse possession and by the Statute of Limitations? Respondent’s counsel say if appellants ever had the bare legal title by descent cast from their ancestors, the original trustees (which they deny), they lost it to respondent’s grantors by adverse possession. Appellants in reply point to the foregoing statute and say it shuts out the contention. As to that we say: If actual trustees were suing to preserve a pious- or charitable use another question would be here. If appellants were suing and contending that as mere heirs of the original trustees a legal title was east upon them so that they stood charged in equity with a pious or charitable use for the members of the Davis- Fork Baptist Church as beneficiaries, then that feature would have to be considered in connection with the question of the form of the action and the other question whether they or the trustees appointed by the Davis Fork Baptist Church congregation were the “successors” of the original trustees and entitled to possession. But these appellants are not in court on any such theory or capacity. They sue in their own individual right on a bare legal title which they claim was cast upon them in their own individual right by descent as heirs of their ancestors. They ask no possession on behalf of the members of Davis Fork Baptist Church as beneficiaries. They lay no claim to the right to represent the church or its members. The position of their learned counsel is that the pious use has been diverted, abandoned, and consequently that they, as heirs, have title and the right of possession to the property as their own. On that contention we observe: The statute they invoke was intended, inter alia, to preserve lands given, granted, sequestered or appropriated to a pious or charitable use to that use. It was not intended to be a weapon in the hands of heirs or others to prevent the acquisition of land for a pious or charitable use by adverse possession and by limitation. A close and discriminating reading of it makes it clear that it was not leveled at that angle of the matter, and the reason of the thing, as well as the history of the statute and the mischiefs to be prevented thereby, conclusively corroborate that view of it. Prior to that statute this State had through its. statutes adopted the public policy of allowing the limitations to run agains the State and municipalities. It was found to be a ruinous public policy; for under it school lands, roads, parks, streets, etc., were lost to the State and public through the laches or ignorance of the public or of officials representing it. Is it not learned at the fireside, that what is everybody’s business is nobody’s business? To put a stop to that mischief was. one of the main objects of that statute. "While about it, however, the lawmaker included in' his law lands granted, sequestered or appropriated (not only) to any public, (but to any) pious or charitable use as well as lands belonging to the State, because such lands were peculiarly subject to mischiefs’arising from the invasions of those who itched for them and got footholds upon them by inching over on them by stealth, or appropriating them by covin or other form of wrong and finally ripening a title by effluxion of time. It is common learning that the law favors pious and charitable uses as well as public uses, and it is clear that the statute was passed in furtherance of that idea and not for the protection of those standing in the position of these appellants who, as said, sue in their individual right for themselves and not on behalf of the use. Take a case: Property used by a railroad company as a right of way or for depots is devoted to a public use and is protected by’the statute. [Kansas City & N. C. R. R. Co. v. Baker, 183 Mo. l. c. 324 et seq.] Would it not be a startling proposition to hold that because of that statute directed against losing land by limitation such railroad company could not acquire title by limitation? Or that the trustees of a church, school or hospital could not acquire title by limitation because of the same statute? Bespondent’s counsel cite us to cases holding that title may be acquired by prescription for charitable, pious, and public purposes. But as appellants cite us to none contra, we shall not quote from respondent’s, but put our ruling on the intent of the lawmaker as gathered from the language of his statute, and the reasons for its enactment.

That the spirit of the law is the main tiling in good exposition, that the intent of the law is the life of the law, its soul, and that if courts do not seek that intent out.and enforce it they miss their prime and most august function are good doctrines. [Keeney v. McVoy, 206 Mo. l. c. 65 et seq.; Perry v. Strawbridge, 209 Mo. 621; State ex rel. Waller v. Trustees of William Jewell Colege, 234 Mo. l. c. 313 et seq.]

It was once the fashion in court and out to refer to statutes of limitations much the same way that polite folks now refer to their bowels, to-wit, only by way of derogation and complaint, but that day is long since over and gone and those statutes are now justly esteemed as highly salutary. [Wetmore v. Crouch, 188 Mo. l. c. 652 et seq.] To deny their aid in the acquisition of title by church organizations unless inexorably driven to .that conclusion by a statute directed to that end (and leaving no loophole of escape) would he as invidious as .unnecessary. The statute is directed to a charitable use holding its lands in spite of limitation, not to forbidding it gaining title by limitation.

(c) To defeat the force of the Statute of Limitations, appellants also invoke the doctrine that the statute, as between cestui que trust and trustee, does not run in favor of either (as against the other) in an express trust. But before that doctrine could be applied in their aid we would have to hold the relation existed and that appellants in the eye of the law were trustees of an express trust. That we are not willing to do on this record — nay more (as we have held) they do not sue in that capacity or right. Ever since the old case of Esau v. Jacob it has been allowed as just that the asking voice should really belong to the getting hand. Are we to hold they may ask possession as heirs in their individual right, and get possession as trustees¶ If so are they trustees by inheritance, trustees de facto, or de jure, trustees by Baptist usage or custom, trustees by contract, by implication, or by election (or predestination) or how? It would be to reject substance and deal with shadows to reason out a trusteeship for appellants on the facts before us. So, scattered to the four winds, they never met as trustees, or for one moment acted as such or in one instance claimed the right to do so. For nigh thirty years they, without lifting a finger of protest, saw others chosen to that function and filling it acceptably to the beneficiaries of the trust. In the face of such implied repudiation of the duties of trustees it is idle for them to masquerade in that name in suing for real estate they claim in their own right by inheritance as heirs. No respectable authority can be found for that position and I think none ever will be found so long as the law lays stress on reason, or runs on all-fours with good sense and fair dealing between man and man.

So that if the facts show that appellants, by limitation lost their naked legal title, if any they had, to the actual trustees of the Davis Fork Regular Baptist Church (which question we take next) there is nothing in the pleadings, nothing in the foregoing statute or in the relation of trustee to cestui que trust in the way of the affirmance of the judgment.

(d) The record conclusively shows that the trustees selected from time to time by the members of the Davis Fork Regular Baptist Church were in possession of the real estate since 1880 when Pearson, the last resident original trustee, died. That the members of that church society shared permissively in the possession, as contemplated by the trust, in no way milir tates against the possession of the trustees or operates in favor of appellants. It was res inter alios acta as to them. That the possession of sudh trustees was continuous, open and adverse as to these appellants and the whole world save the church members, can not be gainsaid under the proof. They did not take or hold by appellants’ permission or in subordination to their rights. That it was peaceable and under a claim of right is plain enough.

Under the Constitution of 1865, art. 1, sec. 13, trustees for a religious society or congregation, though unincorporated, could hold title to church property. [Boyce v. Christian, 69 Mo. 492.] The case is a typical one for the application of the Statute of Limitations as against appellants and in favor of respondent’s grantors and we so rule. If,' then, appellants ever held a legal title it was lost to them.

It is not clear how the regularity of the several appointments of the successors to the original trustees is any concern of appellants who are nonmembers of the church or has anything to do with this phase of the case as suggested by them. But, if open to investigation, it would have to he held under this record, absent proof to the contrary as here, that prima-facie •and presumptively their several appointments were regular and in accordance with Baptist usages. Individuals and officials are presumed to perform their duties and engagements, act regularly and lawfully until such time as those who deny the fact overthrow such presumption by proof. [McCallister v. Ross, 155 Mo. l. c. 94; Hartwell v. Parks, 240 Mo. l. c. 544 et seq.]

There are cases cited by respondent’s counsel from this court dealing with Baptist usages and the right of trustees to possession, holding reasoning and announcing conclusions supporting those reached in this paragraph. [Fulbright v. Higginbotham, 133 Mo. 668; Turpin v. Bagby, 138 Mo. 7.] And the curious may consult other cases cited by counsel buttressing the conclusions announced. [Christian Church of Sand Creek v. Church of Christ of Sand Creek, 219 Ill. 503; First Baptist Church of Sharon v. Harper, 191 Mass. 196.]

II. Of other questions raised.

There are nice questions discussed in briefs that will not be reached or ruled by us. For instance, it is suggested on one side and denied on the other:

(1) That the original trustees were trustees of a mere dry trust which was automatically executed by the statute of uses in favor of the church members, the beneficiaries, and that the legal and equitable title united in such beneficiaries in 1873' at the date of the Barnett deed.

(2) That the trustees paid their own funds to Barnett for the lot and were never reimbursed, hence the case of Draper v. Minor, 36 Mo. 290, controls the title and the right of succession. (Note: That phase of the matter has been considered in the opinion. The Draper case has never been cited as an authority from that day to this and we must not be considered as approving or disapproving it.)

(3) That respondent has no title because (it is claimed) her deed is void as a conversion of property devoted to a charitable use, because the conveying trustees were not duly appointed and because the title was in appellants.

(4) That the original trustees took a life estate only.

(5) That trustees as such can have no heirs.

The case having broken on the Statute of Limitations, and appellants having lost any legal title they ever had, it is not necessary for us to say whether they really had any by descent cast as heirs, or pass on the strength of respondent’s title or on any other question outlined above. They are reserved for decision in some case riding off on them; for, as put in the opera, like “The flowers that bloom in the spring,” they “have nothing to do with the case,” as presented in this record and disclosed by the form of the judgment.

Let the judgment be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    CHARLES P. SENTER v. WISCONSIN LUMBER COMPANY, Appellant.
    Division One,
    March 3, 1914.
    1. QUIETING TITLE: No Prima-Facie Title in Plaintiff. , The plaintiff cannot call defendant into court by bis suit to ascertain and determine the title to land,'under old section 650, and have the court declare the alleged claim of defendant invalid, unless he himself have a prima-facie title. If his own title is invalid, it is no concern of his whether or not defendant’s claim is invalid.
    2. SWAMP LAND: General Judgment Against County: Sale by Sheriff. A sheriff’s deed made in 1860, purporting to convey title to swamp lands through a sale under a general judgment against the county, is void upon its face. Such lands were not subject to sale in that way. They were held by the county in trust for specified purposes, and could not be subjected to the payment of a general county indebtedness by execution sale.
    S. -: -: -: After-Acquired Title. After-acquired title does not inure to the benefit of a grantee in a sheriff’s deed. Such a deed conveys to the grantee only the mere ' “right, title and interest” of the execution debtor. So that, though it be conceded that subsequent acts of the Legislature gave to the county a title different from the one held by it at the date of the sheriff’s deed in a sale of swamp lands under a general judgment for debt against the county made in 1860, that fact would not avail the grantee in said deed anything.
    4. -: -: ■ ■ ■ : Estoppel in Pais: Levying and Collecting Taxes. The fact that after the swamp lands were sold by the sheriff under a general judgment against the county for debt, the county, through its officers, for many years, assessed the land for taxes against the grantee in the deed, and collected from him the taxes so assessed and levied, does not avail to render valid the deed void on its face, nor do those things amount to an estoppel in pais as a basis for title in such grantee.
    Appeal from Dunklin Circuit Court — No». J. L. Fort, Judge.
    Reversed and remanded (with directions).

      Arthur L. Oliver and Victor A. Ferny for appellant; Edgar A. Bancroft of counsel.
    (1) Respondent’s source of title is an inoperative and void sheriff’s deed. The burden was on respondent to prove a prima-facie title. Wheeler v. Land Co., 193 Mo. 291. Respondent’s source of title is the sheriff’s deed of November 15, 1860, purporting to sell these swamp lands under an execution. The nature of the judgment on which the execution was issued does not appear and the presumption is that it was based on an ordinary county indebtedness. State v. Crumb, 157 Mo. 561; Hall v. Klepzig, 99 Mo. 88. The sheriff’s deed is absolutely inoperative and void because : (a) At the time of its execution Dunklin county had no title to the lands described in the deed. Bay-less v. Gibbs, 251 Mo. 492. Therefore, no title passed under the execution sale. Tate v. Sanders, 245 Mo.* 210. That Dunklin county later obtained title is immaterial, for an after-acquired title does not inure to the benefit of a grantee under a sheriff’s deed. Gibson v. Chouteau, 39 Mo. 566'; Emerson v. Sansome, 41 Cal. 555'. (b) Even if Dunklin county had title, the levy and sale are void; these lands being held for a public purpose cannot be sold under execution. State v. Tiedemann, 69 Mo. 307; Hart v. Klein, 98 U. S. 151; Meriwether v. Garrett, 102 U. S. 501; New Orleans v. Morris, 105 U. S. 604; New Orleans v. Construction Co., 140 U. S. 664; Ellis v. Pratt City, 111 Ala. 631. Swamp lands are held by the counties for public purposes. Laws 1852-1854, p. 108; Laws 1850-1851, p. 238; Bayless v. Gibbs, 251 Mo. 492; Wheeler v. Land Co., 193 Mo. 279; Railroad v. Hatton, 102 Mo. 55; Railroad v. Wayne County, 125 Mo. 357; Sturgeon v, Hampton, 88 Mo. 213; Hooke v. Chitwood, 127 Mo. 376; Moss v. Kauffman, 131 Mo. 427. Hence they are exempt from sale under execution. State ex rel. v. County Court, 51 Mo. 85; State v. Crumb, 157 Mo. 561; Simpson v. Stoddard County, 173 Mo. 445. (2) Respondent has acquired no .title by laches or estoppel. Since the sheriff’s deed is absolutely void the county would not be barred by laches. Cook v. Lasher, 70 Fed. 707. Nor could such a deed create an estoppel. MacFarland v. Heim, 127 Mo. 334; Edwards v. Kirk-wood, 147 Mo. App. 615; McCracken v. San Francisco, 16 Cal. 624. Neither respondent nor his grantors ever had possession of the lands. Mere payment of taxes does not constitute possession. Stone v. Perkins, 217 Mo. 602; Carter v. Hombeck, 139 Mo. 245. The assessment and collection of taxes could not estop the county. Hooke v. Chitwood, 127 Mo. 376. None of the elements of estoppel as defined in Hequembourg v. Edwards, 155 Mo. 522, are present here. But even were the county estopped, the appellant, a bona-fide purchaser for value and without notice, is not estopped. Thistle v. Buford, 50 Mo. 281; Ruta v. ICehr, 25 N. E. (111.) 957. There is no evidence that appellant had actual notice either of the sheriff’s deed or of the assessment and collection of taxes by the county. Since the county had no title until long after the execution of the sheriff’s deed, appellant is not chargeable with constructive notice of that instrument. Ford v. United Church, 120 Mo. 498, 514. Nor is it charged with constructive notice of the assessment and collection of taxes, for they were not on the land records of the county recorder. R. S. 1909, secs. 2809. 2810; Roussain v. Norton, 53 Minn. 560.

      J. L. Fort for respondent.
    (1) Appellant claims to be an “innocent purchaser.” The claim of “innocent purchaser” is in an answer an affirmative defense, and in a petition occupies a similar affirmative attitude, and the party pleading it must “come into a court of equity with absolutely clean hands. ’ ’ And not only must the affirmative claim or affirmative plea contain the elements aforesaid, but those elements must be appropriately amplified; thus: If a purchaser wishes to rest his claim on the fact of being an innocent bona-fide purchaser he must deny notice, though it be not charged; he must deny fully and in the most precise terms every circumstance from which notice could be inferred and inasmuch as the averment or defense of being an “innocent purchaser” is an affirmative allegation or plea, so must the evidence offered in its support be of the like nature; as the allegation must be affirmatively pleaded, so also must it affirmatively be proved; the onus lies on the pleader. Young v. Schofield, 132 Mo. 660. No issue of “innocent purchaser” was tendered by the pleadings in this case, and no testimony was introduced in the trial on that question, and therefore appellant stands on this record as one having notice and knowledge of the title under which respondent claims as well as notice and knowledge of the fact that respondent, and those under whom he claims had paid taxes on these lands, under claim of ownership thereof for twenty-nine years. In this view of the case it makes no difference whether the sheriff’s deed to Daniel B. Miller was constructive notice to appellant or not since appellant failed to show that it was an “innocent purchaser,” and therefore, stands on this record as a purchaser with notice, and such purchaser cannot complain of the want of constructive notice. (2) There are certain links in the chain of title to overflowed lands in Missouri of which every one purchasing such lands is charged with notice, viz: That the title in the beginning was in the United States; that the title passed by a public act of Congress to the State of Missouri; that it passed by a public act of the General Assembly to the several counties in which the lands were situated; that is to say, although at the date of the sale of the land in question the State still retained the legal title, yet the State had constituted the counties its agents authorized to sell on the terms and in the manner prescribed by law, the patent to be issued by the State' pursuant to a sale by the county. The officers entrusted with these sales in the several counties were required by law to keep a record of their acts. All these public laws the purchaser was bound to take notice of and he was bound to know what the books and files in the public offices where these sales were made would show. He was also'charged with notice of the fact that the land he was about to purchase was, at the date of the several public acts of the General Assembly, in a certain county and that the records of that county, the books and files in the offices of the several officers charged with the duty of making the sales, would show what, if anything, the county had done in the way of selling the land. Mosher v. Bacon, 229 Mo. 362. The Act of Congress was a legislative grant and required no formal conveyance to transfer the title to all these swamp lands to the several states. It was., as has been repeatedly ruled, a grant in praesenti, the selection ordered to be made by the Secretary of the Interior being merely for the purpose of subsequently identifying the land, and the patent when issued relating back to the passage of the act. After the title to tírese lands had thus been vested in the State of Missouri the State, through its General Assembly, by an act approved February 23rd, 1853, donated its swamp lands to Dunklin county upon the terms and provisions of the Act of 1851 which granted all of such lands to the counties in which they were situated. Subsequently, by an act of the Legislature approved November 4th, 1857, all the lands in the State selected under and by virtue of said Act of Congress was declared to vest in full title and belong to the counties in which they were situated. Simpson v. Stoddard Co., 173 Mo. 443; Laws 1857, Adj., p. 38. This act includes by its general terms, Dunklin county, and the Acts of 1868 and 1869 simply conform to the county the title which had been already granted to it by the Act of 1857 above. Simpson v. Stoddard County, 173 Mo. 445. (3) It is a general rule of law that notice to an agent during the existence of the agency, and in reference to business coming within the scope of the agent’s authority, is notice to the principal. Hayward v. Company, 52 Mo. 181; Meier v. Bloom, 80 Mo. 179; Dunham v. Hahn, 127 Mo. 439; Bank v. Lovitt, 114 Mo. 519; Traber v. Hicks, 131 Mo. 180; Smith v. Boyd, 162 Mo. 157. The agents of the county and State assessing, levying and collecting taxes on the lands in suit must have represented, and must have been the agents of the county and state, otherwise they were nobody’s agents. The eye of equity cannot see the county, or the State, in the transaction of assessing, levying and collecting these taxes without seeing these agents. Not only have the State and county officers assessed, levied and collected taxes on the lands in suit, hut the State Board of Education has had the authority, and has been charged with the duty of recovering such portions of the swamp lands of the different counties of the State as have been diverted from their proper channels, at least, since the year 1870, and has had the authority during all that time, in each Congressional district of the State, to employ an attorney to assist it in carrying out and performing the duty imposed upon it by law. Laws 1870, p. 159; Laws 1871, p. 79; R. S. 1879; secs. 7091-93; R, S. 1889, secs. 8040-42; R,. S. 1899, secs. 9815-17; R. S. 1909, secs. 10975-77; Phillips v. Butler County, 187 Mo. 698. If the lands in suit were diverted from their legitimate use, by the sale thereof to Daniel B. Miller in 1860, surely it was the duty of the State Board of Education since the year 1871, to prosecute a suit to recover the land, and its failure to do so since that time ought to es+op it from claiming the lands, in suit against respondent, or his predecessors in title. (4) The purpose of all estoppels is to prevent duplicity and inconsistency. Estoppel concludes the truth in order to prevent fraud and falsehood. The reason which governs estoppels, is that after a man has by his own deed or act m pais admitted a fact to be true he shall not be permitted to contradict it. Estoppels preclude the assertion of facts not law. Evidence of the falsity of the fact is excluded because the nonexistence of the fact is immaterial. “Whether the fact exists or not, the rights of the parties are the same in law. Mutual v.' Corey, 135 N. Y. 326; Coogler v. Rogers, 25 Fla. 853; Davis v. Collier, 13 Ga. 485; Gavin v. Gray-don. U Ind. 559: Reicl y. Benge, 119 T<"v. sir>; Gibson v. Gibson, 15 Mass. 106; Moore v. Willis, 9 N. C. 555; South v. Deaton, 113 Ky. 312; Davis v. O ’Farrall, 4 Greene (Io.), 358; Demarest v. Hopper, 22 N. J. L. 599; Bush v. Critchfield, 5 Ohio, 109. Estoppel is so called because a man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth. Coke Litt., 352a; Edmonson v. Montague, 14 Ala. 370; Chesser v. DePrater, 20 Fla. 691; McCabe v. Raney, 32 Ind. 309; Ridgeway v. Morrison, 28 Ind. 201; Martin v. Company, 83 Me. 100; Haynes v. Stevens, 11 N. H. 28; Frost v. Company, 49 Am. Dec. 234; Arm-field v. Moore, 44 N. C. 157; Ennel v. Levy, 46 Ohio St. 255; Water’s Appeal, 78 Am. Dec. 354; Stebbins v. Bruce, 80 Ya. 389; 16 Cyc. 749. A disclaimer of title to property seized or sold under judicial process es-stops the party from subsequently asserting title thereto. Barnhart v. Fulkerth, 90 Cal. 157; Kenner v. Mackey, 85 111. 96; Lick v. Munro, 8 Idaho, 510; Cur-yea v. Berry, 84 111. 600; Mateer v. Green, 31 111. App>. 467; Sebright v. Moore, 33 Mich. 92. It is well settled that the doctrine of laches and estoppel applies to a county or other municipal corporation as well as to individuals. Dillon on Municipal Corporations, sec. 548; Dunklin County v. Chouteau, 120 Mo. 594; State v. West, 58 Mo. 229; County v. Post, 93 U. S. 502; County v. Company, 93 U. S. 124; Huff v. Buchanan, 27 Fed. 328; Murphy v. Packer, 152 U. S. 398; Boone v. Company, 139 U. S. 684; Railroad v. Columbia, 132 IT. S. 1; Sanders v. Devereaux, 60 Fed. 311; Am. Stave Co. v. County, 93 Fed. 301; Rummel v. County, 93 Fed. 304; 16 Cyc. 749, 757-8; Palmer v. Jones, 188 Mo. 163. Municipal corporations, when acting in their proprietary as, contradistinguished from their governmental capacity, are subject to estoppel in pais to the same extent as private corporations. Herman on Estoppel, sec. 1222, p. 1363; 1 Dillon, Mun. Corp., sec. 237; Chicago v. Joliet, 79 111. 39; Martel v. St. Louis, 94 111. 69; Gregston v. Chicago, 145 111. 464; State v. Company, 32 L. R. A. 391; Cronin v. New York, 79 N. Y. 511; Knight v. Company, 70 Mo. 237; Railroad v. Tridelphia, 4 L. R. A. (N. S.) 321; Railroad v. County, 36 Mo. 294; Union Depot v. St. Lonis, 76 Mo. 393; Louisville v. Company, 224 U. S. 649; State v. Company, 246 Mo. 648.
   GRAVES, J.

Action under old section 650 to determine title to certain lands in Dunklin county. The petition is of the very shortest form under such section. The only clause in the petition outside of the ordinary averments that plaintiff owns the land and that defendant claims some title or interest therein, is the following clause :

“That said lands are swamp and not susceptible of cultivation, but plaintiff has been in possession thereof, paying taxes on the same, and exercising over them all the acts of ownership and possession of which the said lands are susceptible.”

The answer admits the corporate existence of defendant and that it is empowered to transact business in the State, and further admits that it does claim an interest in the lands in suit, and avers that interest to be a fee simple interest in all of such lands. The answer also denies that plaintiff has any interest therein, and prays that defendant be dismissed with, its costs. Defendant’s answer is a little out of the usual in that it does not pray that the court adjudicate and determine title, a prayer usually found in answers filed in suits under this section of the old statute. Reply was a general denial.

Upon the issues thus made- the trial court found for the plaintiff, and adjudged that the title to all of such lands was in the plaintiff. From this judgment the defendant has appealed.

It is conceded that the plaintiff is not entitled to a judgment for all the lands given him by the decree nisi, but with the view we take of the law of the case there is no necessity to go into the details of this question. It will suffice to say that both parties to this suit claim through Dunklin county as a common source of title, the plaintiff through a sheriff’s deed, and the defendant through some three or four patents. Plaintiff begins to deraign his title by sheriff’s deed made in 1860 and acknowledged in 1867. This deed, among other things, recites:

“Whereas, on the 16th day of May in the year of our Lord 1860, a judgment was rendered in the circuit court of the county of Dunklin, in favor of Daniel B. Miller, against Dunklin county, for the sum of fifteen hundred and eighty-one dollars and ninety-one cents for debt, upon which judgment an execution issued from the clerk’s office of said court, in favor of said Daniel B. Miller against the said Dunklin county, dated the 18th day of October, 1860, directed to the sheriff of the county of Dunklin, and the same was to me delivered on the 20th day of October, 1860, by virtue of which said execution, I, the said sheriff did on the 20th day of October, 1860, levy upon and seize all the right, title, interest and estate of said Dunklin county of, in and to the following described real estate situated in my said county, to wit:”

After describing a large quantity of land it then recites 'that all such land was sold to Daniel B. Miller on the 12th day of November, 1860, for the sum of $522.96, and then thus winds up:

“In Witness Whereof, I, Leander J. Taylor, Sheriff of the county of Dunklin have hereto set my hand, and affixed my seal this, the fifteenth day of November, 1860.
‘ ‘ Leander J. Taylor, (Seal)
Sheriff of Dunklin County, Mo.”
This deed has the following acknowledgment:
“State of Missouri, ) County of Dunklin, )
“Be it Remembered, that, on this 7th day of September, 1867, personally appeared in open court, Leander J. Taylor, whose name appears to the foregoing instrument of writing as a party thereto, and who was at the date of said deed sheriff of Dunklin county, Missouri, and he acknowledges the same to be his voluntary act and deed as such sheriff for the uses and purposes therein mentioned and expressed.
“Given under my hand and seal of the circuit court at office in Kennett, this 7th day of September, 1867.
“Leonard T. Bragg,
“By ¥m. G. Bragg, Clerk.
Deputy.”

It was- filed for record on the same day. All of plaintiff’s paper title, if any he has, comes through this deed. He offered a number of mesne conveyances, which we need not detail. In addition to this so-claimed paper title the record, so far as plaintiff’s title is concerned, then shows the following:

“The plaintiff then offered in evidence certain tax receipts of the collector of Dunklin county purporting to show that:
“Respondent and his grantors paid the said, county and special taxes on the fractional southwest quarter of section nine, township sixteen, range nine, for 1879 to 1886 inclusive, 1892, and 1891 to 1909' inclusive.
“Respondent and his grantors paid state and county taxes on the fractional southeast quarter of section nine, township sixteen, range nine, for 1893.
“Respondent and his grantors paid state, county and special taxes on the northwest quarter of section eleven, township sixteen, range nine, for 1880, 1883 to 1886 inclusive, and 1892 to 1909 inclusive.
“Respondent and his grantors paid taxes on the west half of section thirty, township seventeen, range ten, for 1879, 1882 to 1886 inclusive, and 1892 to 1909 inclusive.
“Respondent and his grantor paid taxes on the fractional south half of section twenty-eight, township eighteen, range ten, for 1880, 1882 to 1886 inclusive, and 1892 to 1909 inclusive.
“To the introduction of said tax receipts the defendant objected on the ground that they were incompetent, irrelevant and immaterial; and that the receipt of taxes by the officers of Dunklin county could not estop the county. The court reserved its ruling.
“The plaintiff offered in evidence tax records of Dunklin county, Missouri, to show that the lands were assessed to R. C. Allen in 1879, 1880, 1881, 1882, 1883, 1884 and 1885, and also to show that the lands were assessed to C. R. Allen during the years for which tax receipts have not been offered and that taxes were paid by R. C. Allen until the year 1889, when he died.
“Plaintiff, also offered said tax records to show that taxes were paid on those lands by the administrator of R. C. Allen and by the grantees of Wm. A. Allen and T. C. Allen, for 1889, 1890 and 1891.
“The defendant objected to the foregoing on the ground that no foundation had been laid by showing that the records were in existence.
“The Court: Subject to the objection. What is next? The plaintiff then rested.”

This suit was brought in 1909, March 9th, and we will not go into defendant’s answer at this time, further than to state, upon the question of taxes, that the record shows that it had also paid taxes upon these lands for five or six years prior to the date of the suit. For the present this sufficiently outlines the case.

I. Of first importance in this case is the validity of plaintiff’s paper title. He must make a prima-facie title before he can call the defendant into court, and have the court declare the alleged claim of the defendant invalid. In Wheeler v. Reynolds Land Co., 193 Mo. l. c. 291, Valliant, J., has well said:

“No one has a right to require another to come into court and show his title who can not himself show at least prima-facie title; and no plaintiff is entitled to a decree declaring the claim of another invalid until he has shown that he himself has a better claim; in equity, as at law, if one recovers at all it must be on the strength of Ms own title. Therefore, when the plaintiff calls this defendant into court to answer and show what title it has, he is not entitled to a decree declaring that the defendant’s claim of title is invalid until he first shows prima-facie a valid title in himself, even though the defendant offers no proof of Ms own title. If therefore the plMntiff’s proof goes no farther than to show that the defendant’s title is invalid, the plaintiff is not entitled to a decree. If the plaintiff has no valid title, it is no concern of his to know whether or not the defendant’s claim is valid.”

It is contended by the defendant that the sheriff’s deed to Miller was and is void upon its face. In other words, that it purports to convey title to swamp land through a sale under a general judgment against the county, and that such lands are not and were not subject to sale in that way. TMs contention we think well taken. Swamp: lands could not be sold under a judgment of the kind and character indicated by the sheriff’s deed in tlais ease. These swamp lands were held by the counties in trust for specified purposes, and were not such as could be subjected to the payment of the general county indebtedness by execution sale. When we say the lands were held in trust by the counties, we do not mean that there was a trust which ran with the land and affected the title thereto, if sold in an attempted exercise of the power of sale given the county, butwe mean that the funds obtained from such a sale were impressed with a trust as. indicated by the purpose expressed in the act transferring, the title from the Federal Government to the State. This is the doctrine of Simpson v. Stoddard County, 173 Mo. 421. It may be urged that the doctrine of the Simpson case was thwarted in Bayless v. Gibbs, 251 Mo. 492, and in the opinion in that case there are some strictures, upon the Simpson case, and in fact the reasoning in the Bayless case follows the line of thought and authorities in the dissenting opinion of the Simpson case, but it will be observed that a majority of this division did not concur in the reasoning of the opinion in the Bayless ease. Further the Simpson case is one thoroughly threshed out by the Court in Banc, and when it is overruled the opinion so doing should come from that court, and not from one of our divisions. This much, because the Bayless case in its fullness, is urged here. Personally, I think the law well declared in the Simpson case, upon all the vital questions therein contained, and I concurred in the Bayless case on the sole ground that the invalidity of the patent was apparent from the face thereof, a doctrine recognized in the Simpson case. [173 Mo. l. c. 458-9.]

But we need not go to either of these cases for authority in the case at bar upon the question now before us.. That question is, can land, held by the county, to be sold by the county and the proceeds of the sale applied to a given specific purpose, be sold under execution upon a general judgment against the county? To this question we answer no, and if the writing purporting to pass the title has impressed upon its face the evidence of that kind of a sale, then such deed or writing is void and absolutely worthless as a muniment of title. This court held such an execution sale and deed thereunder void, in the early case of State ex rel. Robbins v. County Court, 51 Mo. l. c. 85, whereat Judge Bliss said:

“Are, then, the swamp lands within the several counties subject to sale upon execution against the counties ? The affirmative of this question is urged by counsel for the original respondents, for the reason that by the act of March 10, 1869 (Laws 1869, p. 66], a conveyance to the several counties of all the title and interest of the State in and to the swamp and overflowed ]ands was provided for. But this act does not specify the nse for which the counties shall hold these lands, nor repeal any provision theretofore creating a use. It is perfectly consistent with any obligation that may have been or may be imposed upon the counties in regard to the disposition of the proceeds of the sale of these lands. It is true, if no disposition is provided for, they might belong to the general revenue and be used for any lawful purpose; and in that case they might or might not be directly liable to seizure for general debts of the county. Of this it is not necessary for us to speak, and for the reason that before the passage of the above mentioned act a specific use had been designated to which their proceeds should be devoted. The legislative intention in this matter is clear and unequivocal. The above act is not the one upon which the counties rely for title; it only specifies the mode of conveying the same. But the previous act of March 27, 1868 (Laws 1868, p. 68, sec. 1), expressly donates, the swamp lands to the counties in which they may be respectively situated,’ and says that they ‘shall be the absolute property of such counties for the purpose hereinafter designated.’ This purpose is designated in section 8, which provides that the ‘net proceeds of the sales, of all such lands, after defraying the expenses of draining, reclaiming, surveying and selling the same, as herein provided, shall be paid into the county treasury and become a part of the public school fund of the county.’ .The same use had been before established as to most of the counties by the act of March 3, 1851, page 238.; so that the several counties, instead of holding these lands for general purposes, have received. them from the State in trust, with power of disposition, and hold them for the use of the 'public schools. So, then, they must beheld as declared by the statute, and entirely exempt from any liability for ordinary county indebtedness.”

It should be remembered that the execution sale in this case was in 1860, long prior to the Act of 1869. We are not saying that this would make- a difference, but such fact obviates some of the discussion by Judge Bliss in his case. This opinion in 51 Mo. is cited with approval in Simpson’s, case, 173 Mo. l. c. 447, and its doctrine likewise recognized in State ex rel. v. Crumb, 157 Mo. l. c. 561. So upon this question the divers members of this court seem to have agreed, however much there may have been disagreements upon other questions. These lands were improperly sold under the execution in favor of Miller, and the deed to him was void upon its face.

II. And if we were to grant that acts of the Legislature after this sale in 1860 had given to the county a title different from the one held at the date of the sale, yet this would not avail the plaintiff. Title acquired afterward wjp not inure to the benefit of a grantee in a sheriff’s deed. [Gibson v. Chouteau, 39 Mo. l. c. 566.] Such a deed only conveys to the grantee the mere “right, title and interest” of the execution debt- or. No covenants of seizure or possession are found in such deeds. After-acquired titles do not pass by such instruments. So that it appears that the very basis of plaintiff’s paper title falls from under him, and upon that theory of the case he was not entitled to the decree granted to him.

III. The doctrine of estoppel in pais is. next invoked as the basis of plaintiff’s title. These lands are and were wild lands. We borrow from prigf 0f plaintiff’s able counsel a state- ¿ ment of the facts relied upon as. an estoppel in pais as between plaintiff and Dunklin county. Counsel says g

“In this case the evidence shows without contradiction that Dunklin county was indebted to Daniel B. Miller in the sum of $1581.91, and that said Miller and those claiming under him down to and including' respondent have paid the taxes on the lands in suit for the years 1880, 1882, 1883, 1884, 1885, 1886, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908 and 1909, a period of twenty-nine years. For these lands, worth not to exceed $1.25. per acre in the year 1860, Dunklin county has received $1581.91, and the county and the State has. received taxes thereon for twenty-nine years. The question is, shall the county be permitted to retain these lands, or to assert title to them as against respondent, and also retain the taxes assessed, levied and collected upon them for twenty-nine years and refuse to pay the judgment for $1581.91 ? It is well settled that the doctrine of laches and estoppel applies to a county or other municipal corporation as well as to individuals. ’ ’

This statement is somewhat broader than the facts. The record does not show that the county received $1,581.91, or any substantial part thereof, for the lands involved in this suit. But we need not go into the details of this matter.' Nor need we discuss the further question as to whether defendant would be estopped, even if it be granted that the facts worked an estoppel in pais as against the county. This, because in our judgment the facts relied upon did not preclude the county from selling and patenting the land, as it did to defendant’s grantors. Let us reiterate the facts. First, we have a void sheriff’s sale, as evidenced by recitals in the deed made thereunder. Secondly, we have the county officers assessing the lands to the grantee in this void deed, and the county officers receiving from such grantee the taxes as assessed. These are the facts relied upon by plaintiff as and for an estoppel in pais. We recognize that a county can be estopped under some facts. That doctrine seems to be generally recognized. But we do not agree to the proposition that the mere assessment of land by county officers, and the collection of taxes levied under such assessments, by other county officers, will estop a county from asserting title to land, to which it has either the legal or equitable title. The Simpson case, supra, deals with the doctrine of estoppel in pais as to counties, but what is there said does not make out a case for this plaintiff. The facts held in solution there are not the facts here. We know of no court which has gone to the length that plaintiff would have us go in this case. The only matter of substance urged as an estoppel is this void sale, this sheriff’s deed, void upon its face, and the fact that the lands were assessed and the taxes collected for a period of years. These things are insufficient. In the case of Hooke v. Chitwood, 127 Mo. l. c. 376, Macfarlane, J., said:

‘ ‘ The lands belonging to the county could only be sold and conveyed in the manner, pointed out by the 'statute. For the purpose of managing and selling swamp land the county court is not the general agent of the county. The statutes constitute the warrant of authority. [Sturgeon v. Hampton, 88 Mo. 213.] Much less could the county he estopped to assert title hy the fact that the county court had levied, and the collector had collected, taxes upon the lands over which the court is given control

The italics are ours. So too in the early case of City of St. Louis v. Gorman, 29 Mo. l. c. 599, Scott, J., said:

“The city being the owner of the land assessed and sold for taxes to the defendant through the instrumentality of her officers, it is maintained by him that she is estopped to deny the regularity of the proceedings by which he claims title.
“The city is a body corporate, clothed with extensive powers for the management of her municipal affairs. She can only act through her officers and agents; and if those officers, in violation of her ordinances, do unauthorized acts to her prejudice, it would be hard that she could be bound by them. This surely is not the law in relation to natural persons who act through their agents. If the agent exceeds his authority, his constituent is not bound. Those dealing with agents must look to the extent of their power. Agencies are indispensable in the transaction of the business of men; and, if those who employ them are estopped to deny the validity of the acts performed by them, commerce must be restrained within very inconvenient, if not ruinous, bounds. The State of Missouri owns a tobacco warehouse in St. Louis; if the state officers should assess that property in the name of an individual, and sell it for. the taxes, would any one maintain that she was estopped to deny the validity of a title claimed under such a sale? The State has delegated to St. Louis the powers necessary for her municipal government, thus imposing on her an obligation that would otherwise devolve on the State. The city, in the discharge of this duty, is compelled to act by officers. Now, if the State, acting through her officers, is not bound by their unauthorized acts, we can see no reason why the city, in the exercise of functions pertaining to the State and for the performance of which she is substituted in the place of the State, should not stand, in relation to the agents she may employ, on the same ground that the State would to her officers..
“We must all see the numberless frauds, the sanctioning of the principle insisted on would produce. The argument confounds the city with her officers and assumes that they are the city. If an officer of the city, in violation of her ordinances, makes, a contract with an individual, is the city bound by such a contract? Must not those who contracted with the officers employed by the city see that the officers, with whom they are contracting, conduct themselves in pursuance to law? The defendant, claiming that he has obtained the title of the city to a portion of her commons through her officers, is compelled to show that these officers, in assuming to pass a title, acted in pursuance to the ordinances prescribed for the regulation of their conduct on such occasions. This is a well established rule in regard to all those deriving title to land by means of a sale for the taxes. The hare statement of the law in relation to estoppels in pais is sufficient to shoio that it can not apply to transactions where there is the interposition o'f third persons as agents acting in violation of their authority.” Italics are ours. The Supreme Court of Nebraska in the recent case of State v. Ball, 90 Neb. 307, l. c. 315, thus puts it:
“The taxing officers are not vested with, discretion to tax or refrain from taxing property within their respective jurisdictions. If they fail to levy taxes upon land subject to taxation, the levy may subsequently be made; if they levy taxes upon land not subject to taxation, the levy is void. They are not vested by law with power to perform any act which will estop the State from asserting title to the school lands, which it holds in trust for the benefit of all of the school ■children within its boundaries.”

In the early Michigan case of Crane v. Reeder, 25 Mich. l. c. 320, Cooley, J., said:

“It is further insisted, on behalf of- the defend-nuts, that the verdict should be suffered to stand notwithstanding any errors, because the State, by causing the lands to be assessed for taxation, and selling the same for delinquent taxes, waived its right to insist upon an escheat, and estopped itself from after-wards claiming the land. The doctrine, that the State would waive its rights to its lands, or estop itself from claiming them, by taxing them to an occupier, and taking proceedings to enforce payment of the taxes, would be rather startling to the officers having charge of the public domain, and would indicate an easy mode in which trespassers might convert their trespass into a complete ownership.”

The Iowa court in Howard County v. Bullis, 49 Iowa, l. c. 521, saya:

“The conclusion that the county is not estopped to set up its title'to the lands by the unauthorized act of its officers in assessing and selling them, is in accord with our decision in Buena Vista County v. The Iowa Falls & Sioux City R. R. Co., 16 Iowa, 226; Bixby v. Adams County, 19 Iowa, 507. [See, also, St. Louis v. Gorman, 29 Mo. 593; Rossire v. Boston, 1 Allen, 57; McFarlane v. Kerr, 10 Bosw. 219.] ”

The Indiana court in Reid v. State ex rel., 71 Ind. l. c. 258, puts the rule thus strong:

“Lastly, the appellants ardently insist that the evidence proves a state of facts which shows that the State is estopped in pais by her own acts, from claiming the land against the appellees.
“It may be conceded that the evidence fairly proves the following facts: That,'upon the death of Joseph Emisberger, January 10, 1850, the land at once escheated to the State; upon that day the right of the State to the land became complete. The land was sold in February, 1862, to pay the taxes delinquent upon it for the years 1859, 1860 and 1861; that Nathaniel "West was the purchaser of the land at the sale for taxes, and received the regular certificates of purchase therefor from the auditor; that he assigned these certificates to John S. Reid, who, in February, 1864, received the auditor’s deed for the land; that, in December, 1869, John S. Reid conveyed the land to Lafayette McCulloch, in trust for the benefit of Nancy J. Reid, in pursuance of which McCulloch, in 1872, conveyed the lands to Nancy J. Reid; that, ini 1873, John S. and Nancy J. Reid sold and conveyed the land to Christian F. Smith, who has ever since been in possession thereof and claiming title thereto. All of these deeds of conveyance were duly recorded. Lasting and valuable improvements have been made upon the land since its sale for taxes. It may be conceded, too, that these facts show that the State, through her officers, sold the land for delinquent taxes, which partly accrued after she became the owner of the land; that the proper public officer made a deed of conveyance of the land two years after its sale for taxes, at a time when the State owned the land, and that the State made no claim to the land until twelve years after the sale for taxes — and it may be presumed that she collected her taxes from it during all this time — while it was held and claimed adversely, under the sale.
“But all these things conceded, it does not follow, in our judgment, that a case of estoppel in pais is made out against the State from asserting her title to the land by virtue of the escheat. In the absence of misrepresentation op fraud, of which there is no pretense, it is of the essence of an estoppel in pais that the party claiming the benefit of the estoppel shall have acted in ignorance of material and relevant facts within the knowledge of the other party, or which the other party ought, under the circumstances, to have known and communicated. No just claim can be made that the purchaser at the tax sale in question, and the successive grantee under the tax deed, were not as well acquainted with the facts, and as able to learn them by inquiry, as the State or her officers who had any part in making the sale and conveyance. To say the least, the'parties had equal opportunity to know the facts, and were alike bound to know the law, and if there is any estoppel in the case, it is. not in pais, but by deed. But it will hardly be contended that an auditor’s deed, made in consummation of a sale for taxes, can bar the assertion by the State of any claim or right to the land sold. Neither by express words nor by implication of law does such a deed contain a covenant either of seizin or warranty. It does not purport to convey any right, title or interest of the State in the land other than its lien for the taxes assessed; and none of the parties to the sale in question could have supposed that a transfer of the title held by escheat was intended.”

And in the later case of The State v. The Portsmouth Savings Bank, 106 Ind. l. c. 458, the same court said:

“Did the assessment of taxes upon the lands in dispute, the collection of the same, and appropriation of the amount collected to public uses, estop the State to assert its title to the land? Bright and his grantees were claiming to own the land, and the taxes were assessed, doubtless, under the mistaken notion on the part of the officers, that the claim was well founded. Those officers, however, were ministerial officers, whose powers and duties were defined by statute. They had no power to bind the State, except when acting within the scope of their authority. The title being in the State, the lands were not taxable. The unauthorized acts of the ministerial officers in assessing taxes upon it, and collecting the amount from those claiming the land, will not estop the State to assert its title, even though the amount so collected by the officers had by them been appropriated to public uses. [Reid v. State ex rel., 74 Ind. 252, and cases there cited; McCaslin v. State ex rel., 99 Ind. 428; Union School Tp. v. First Nat’l Bank, 102 Ind. 464; State ex rel. v. Jones, 95 Ind. 175; Pettis v. Johnson, 56 Ind. 139; Mattox v. Hightshue, 39 Ind. 95; County of Buena Vista v. Iowa Falls, etc., R. R. Co., 46 Iowa, 226; Crane v. Reeder, 25 Mich. 303; City of St. Louis v. Gorman, 29 Mo. 593; United States v. Maxwell Land-Grant Co., 21 Fed. 19.] ”

It will be noticed that this court like the Iowa court, cites with approval the opinion of Scott, J., in 29 Mo. 593 cited by us’ supra.

In the case at bar the county of Dunklin has done nothing to estop< it from claiming title to the land. Before selling to defendant’s grantors, it had not sold the land. It is true that Miller attempted to sell it and take the title, if any, the county had, but this was no act of the county. Miller’s attempt was futile and resulted in a void deed. The title of the county was unaffected, and the property was not subject to taxation. The acts of assessing taxes against this public property, as held by the authorities, were void acts, and can not constitute the basis for an estoppel in pais. The plaintiff, therefore, made no prima-facie case of title, and his petition should have been dismissed and judgment entered accordingly.

The judgment is reversed and the cause remanded to the circuit court with directions to dismiss the petition of the plaintiff and enter judgment for the defendant for its costs.

All concur: Woodson, P. J., and Bond, J., in result only.