author: FARIS, J.

text:
    C. L. KEATON, Appellant, v. EMMA JORNDT et al.
    Division Two,
    June 23, 1914.
    1. SECOND APPEAL: Judicial Notice of Former Record. The Supreme Court, upon a second appeal in the same case, will judicially notice the record appearing on its files of a former appeal — so far as to notice the existence of the earlier proceeding and what was done in the premises, the legal relations of the parties at different times and their good faith, the identity of the subject-matter and such like matter, but not the evidence adduced at the trial from which the former appeal was taken.
    2. REVERSAL WITH DIRECTIONS: Matters for Consideration on Retrial. Where upon a former appeal in the same case the judgment was reversed and the cause remanded with directions to the trial court to enter up judgment for defendants, vesting in them the title to the interests of certain defendants in the lands in suit acquired by them by virtue of a certain sale for taxes, and to enter a further decree in favor of plaintiff for whatever interests of other defendants he may have acquired by certain deeds of conveyance, the decision further reciting that the “said several interests was not determined by the circuit court and we are not sufficiently advised to determine the same,” the duty of the trial court was to determine those interests and to consider no other question.
    3. TAX SUIT: Proper Defendant. The suit for taxes should be brought against the owner of the land; and if the collector does not know who the real owner is, he may look to the records of title and bring the suit against the person who by them appears to be the owner, and though such apparent owner is not in fact the true owner (for instance, if such apparent owner has conveyed by an unrecorded deed), the title of the true owner will pass by a sale bottomed upon such suit. But that rule is adopted for the protection of the collector, and it does not apply where he knows the true owner. If the collector knows the apparent record owner is not the true owner, or if the purchaser at the tax sale knows that the defendant in the tax suit is not the true owner, no title passes to the purchaser at the sheriffs sale.
    4. -: -: Against Deceased Apparent Record Owner. But under the statutes as they were prior to the amendment of 1909 to Sec. 11498, R. S. 1909, a suit against the apparent record owner who was dead at the time the suit was brought would have been utterly void. Where the apparent record owner is dead the suit can be brought only against the real owner.
    5. TAXES: Life Tenancy and Remainder: Duty Inter Sese. As between the life tenant and remainderman the life tenant is bound to pay the taxes. But that is an obligation inter sese. and one with which the State, when it proceeds to collect the tax, has nothing to do. When the life tenant fails to pay the taxes and both he and the remainderman are sued and the land sold, the State’s lien upon the fee is foreclosed.
    6. ERRONEOUS DECREE AGAINST RESPONDENTS. An erroneous decree against defendants who do not appeal, which gives them less than the evidence shows them to be entitled to, will not be reversed.
    7. TAX SUIT: Foreign Unrecorded Will: Interest Covered By Sale. Where the will of the nonresident record owner devised the land to his wife for life with remainder to his three daughters, and said will is not recorded in the county where the land lies, the' suit for taxes, in the absence of knowledge by the collector of its contents, should be brought against testator’s widow and heifs at law, as if he died intestate; and if so brought, and the land is sold, the purchasers, who do not have either actual or constructive knowledge of the will or its contents, take whatever interest the defendants in the suit have as devisees, though they were sued as heirs.

      8. -: Life Tenant With Power of Sale: Exercised After Tax Suit: Relation. Where the will gave the land to testator’s widow for life, with remainder to his three daughters, with power in her to sell and convey the fee at any time, and a tax suit was brought against all the devisees, and failed as to two of the daughters because they were improperly named therein, an election by the widow to sell, after the sheriff had attempted to sell the whole, did not relate bach to the probate of the will prior to the tax sale, and did not prevent the sheriffs deed from conveying the fee of the one remaining daughter; and therefore the wife’s subsequent deed conveyed only the tentative interests of the two daughters not named in the tax suit. Neither the sale for taxes, nor anything other than the voluntary exercise of her power to sell by the wife, prior to the tax sale, would serve to execute the power and cut out the remaindermen.
    9. -: Actual Owner in Possession: Notice. If the real owner, though not the apparent record owner, is in actual possession of the land, then notice of the actual condition of his title is imputed to the collector at the time the suit is brought, and to the purchaser at the time the sale is made.
    Appeal from Butler Circuit Court. — Ron. W. 8. G. Walker, Judge.
    Affirmed.

      J. L. Fort, W. C. Keaton and •Phillips, Lents & Phillips for appellant.
    (1) The first question that presents itself on this appeal is, whether the former decision of this court is res adjudicata, and therefore binding upon the court in the present appeal, as contended by the defendants. The rule of law is that questions of law determined on a former appeal are concluded only when considered thereafter with reference to the same state of facts. If the essential evidence is thereafter supplied upon a new trial, and a new state of facts appear, the prior ruling is by no means conclusive. Rutledge v. Railroad, 123 Mo. 131; Parker-Washington Co. v. Transit Co., 147 S. W. 191; Williams v. Butterfield, 214 Mo. 427; May v. Crawford, 150 Mo. 525; Bird v. Sellers, 123 Mo. 32; Crispen v. Hannovan, 86 Mo. 187; Timber Co. v. Railroad, 145 S. W. 195; Strottman v. Railroad, 128 S. W. 195; Finnigan v. Railroad, 149 S. W. 628; Smith v. Adams, 130 U.'S. 167; Gardner v. Railroad, 150 U. S. 349; Bucher v. Railroad, 125 U. S. 555; Coal Co. v. Patting, 210 111. 344; Railroad v. Bentz, 108 Term. 670'. If the judgment and opinion of this court in the former appeal is conclusive of the rights of the party it must be on the principle of res adjudicaba. A judgment of an appellate court, which reverséd the judgment of the court of original jurisdiction and remanded the cause to this court for further proceedings, is not a final judgment. A judgment of reversal is only final when it also enters or directs the entry of a judgment which disposes of the case. Smith v. Adams, 130' S. W. 167; Gardner v. Railroad, 150' U. S. 349; Bucher v. Railroad, 125 U. S. 555; Coal Co. v. Patting, 210 111. 342; Paving Co. v. Field, 132 Mo. App. 636; Railroad v. Bentz, 108 Tenn. 670; Garrett v. Greenwell, 92 Mo. 120. In the former opinion in this case, the court neither entered a judgment, nor directed the trial court to enter a judgment, which disposed of the case. On the contrary, it expressly directs the trial court to ascertain what the interests of the several parties in the land are. This is one of the vital issues in the case at bar, both when the case was in this court on appeal, and the.circuit court. The circuit court is required to find what interest the several parties had in and to the- land in controversy. This can only be done by a retrial of the case. The will of Nathan T. Thurber was before the court and the construction to be placed upon that will was one of the vital issues in the case as presented, on the former appeal. Yet the court failed entirely to give a construction of that will or to in any manner declare what the effect of that will was. Consequently, the question of the effect of that will upon the title to the land in controversy, was not passed upon by this court, and the whole question is still open for review. (2) The will of Nathan T. Thurber gives to Carrie E. Thurber a life estate, with the added power to sell and dispose of the fee at any time during her natural life. She did exercise the power, and sold the entire estate, her life estate as well as the fee, to Campbell. The deeds to Campbell conveyed to him the estate in fee, and effectually cut off and extinguished the estate in remainder. So that whenever she saw fit to and did exercise the power given to her by the will, whether before or after the tax judgment sale, it extinguished the estate in remainder whether held by the children of Nathan T. Thurber, or by the grantees in the tax deed. 24 Am. & Eng. Ency. Law (2 Ed.), 449; Grace v. Perry, 197 Mo. '562; St. Louis L. & B. Ass’n v. Puller, 182 Mo. 104; Garland v. Smith, 164 Mo. 15; Evans v. Polk, 135 Mo. 403; Greffet v. Williams, 114 Mo. 120; Lewis v. Pittman, 101 Mo. 291; Harbison v. James, 90 Mo. 425; Russell v. Eubanks, 84 Mo. 86; Reinders v. Cappleman, 68 Mo. 490; Rube v. Barnett, 12 Mo. 6. (3) The sale and deed made in pursuance of the tax judgment did not, and could not, give to the purchaser any further or greater interest than the children of Nathan T. Thurber had in and to the land. The purchaser, even if the sale had been valid, stepped into the shoes of the defendants and took just what interest they had in the land, which was an estate in remainder, which was liable to be defeated if the holder of the life estate saw fit to exercise the power of sale given to her by the terms of the will. Watt v. Donnell, 80 Mo. 197; Powell v. Grantstreet, 95 Mo. 15; Allen v: Ray, 96 Mo. 415; Machine Co. v. Bowers, 200 Mo. 230. (4) The judgment of the court disregarded the will. There was no evidence to sustain the finding of the court, which must have been that Nathan T. Thurber died intestate. This will, when-probated, passed the title to the devisees from the date of the death of Thurber. Rodeny v. Landon, 104 Mo. 646; Drake v. Curtis, 8 Mo. 646; Broadstreet v. Kinsola, 76 Mo. 66; Haile v. Hill, 13 Mo. 618; Bright v. White, 8 Mo. 426. And this is so whether the will was recorded in the State or not.

      WammacJc & Welborn for respondents..
    (1) The taxes for which this land was sold became delinquent during the lifetime of Nathan T. Thurber, the common .source of title. It is true he left a will, but that will was not recorded in Stoddard county, until six years after this tax judgment had been obtained. The officers of the county, charged with the enforcement of this tax lien, cannot be held to have any knowledge of this will in the absence of it being recorded in Stoddard county. They had no notice that there was a will, and therefore sued the widow and the heirs of Nathan T. Thurber. B». S'. 1909, secs. 567, 568. Before a foreign will can be admitted in evidence or become a muniment of title, a certified copy of said will and the probate thereof, must be recorded in this State in accordance with the law governing domestic wills. Stevens v. Oliver, 200' Mo. 513; Keith v. Keith, 97 Mo. 228; Yansykel v. Bean, 110 Mo. 593; Fenderson v. Tie & Timber Co., 104 Mo. App. 290'; Graves v. Ewart, 99 Mo. 17. (2) Where special directions have been given to the lower court by the appellate court upon remanding a cause, it is out of the power of the lower court to open the cause for a new trial. Allen v. Chouteau, 74 Mo. 56; Bridge Co. v. Stone, 194 Mo. 175; Spratt v. Early, 199 Mo. 491; Smith v. Kiene, 231 Mo. 215. (3) When the tax proceeding was brought, and the land sold to satisfy the judgment, so far as the land records of Stoddard county show, Nathan T. Thurber had died intestate, the title to the property then undoubtedly rested in Carrie E. Thurber as the widow and her three daughters as tenants in common. The officer who brought the tax suit, and the purchaser at the tax sale, cannot be charged with constructive notice of a will which had only been recorded in Michigan. Then whatever title these various parties had to the land under the law in 1897 passed by the tax suit, if they were properly brought before the trial court. Carrie E. Thurber and Katie A. Yiger were properly brought before the court, and their interests passed by the tax deed; the other parties were not before the court, according to the opinion of the Supreme Court, and their interests did not pass. Now then, what interest did pass? Minus the will, Carrie E. Thurber had the widow’s dower,- and Katie A. Yiger an undivided onewthird interest in fee, and that is what the trial court has found the defendants entitled to in- this case. The revenue laws require the collector .to sue the owner of land for the enforcement of the tax lien, and the courts have uniformly held that the purpose of this statute is satisfied by a suit against the apparent record owner. Where a non-resident land owner dies and no will is recorded in this State, then presumptively his heirs, according to the laws of this State, are the record owners of his property lying within this State, and they are the parties to be sued for the enforcement of the State’s lien for taxes.
   FARIS, J.

This is an action to determine interest under the provisions of section 650, Revised Statutes 1899 (now section 2535, Revised Statutes 1909), in the following described land situated in Stoddard county, Missouri, to-wit: The northeast quarter, the east half of the southeast quarter, the east half of the northwest quarter, and the east half of the southwest quarter of the southeast quarter, of section 4, in township 23, range 12 east.

This is the second appeal to' this court in this case. A full report of all the facts, so far as it is necessary to consider them here, will be found in 220 Mo. 117, to which reference for snch facts as are not herein set forth may be made.

In the former appeal the judgment below was for plaintiff, finding him to be the owner in fee of the whole of the land embraced in that action and described above herein. Upon a hearing had in Division Two of this court the judgment of the court nisi was reversed with directions, in the following language:

“The judgment of the circuit court, so far as it affects the title to the interests acquired by the purchaser of the interests and estates of Carrie E. Thurber and Katie A. Yiger, is reversed, with directions to the circuit court to enter up a judgment for defendants vesting in them the title to the interests and shares of Carrie E. Thurber and Katie A. Yiger in said lands acquired by them by virtue of said sheriff's deed under said tax judgment, and to enter a further decree in favor of plaintiff for whatever interest he may have acquired by deeds of conveyance in the shares or interests of Mary A. Lemen and Hattie E. Stone. As to what said several interests in said lands are was not determined by the circuit court, and we are not sufficiently advised to determine the same, and hence, express no opinion at this time.”

Prom the trial of the case anew below for the most part and from the facts gleaned from the former case, the record discloses the facts to be about, as follows:

The land in suit and described in plaintiff’s petition was the property of Nathan T. Thurber, a nonresident of Missouri, and in his lifetime a resident of the State of Michigan. Through said Thurber as a common source both plaintiff and defendants claim title. Thurber died at Detroit, Michigan, March 19, 1896, testate, leaving as his sole heirs at law and likewise the sole legatees under his will, Carrie E. Thur-. her, his widow, and Mary A. Lemen, intermarried with one Austin H. Lemen; Katie Yiger, intermarried with one E. R. Vigor, and Hattie E. Stone, intermarried with one Harry L. Stone., The will of said Thurber was duly probated in Wayne county, Michigan, on April 26, 1896. By the terms of this will, after certain minor provisions not here pertinent, he gave all the residue of his estate both real and personal to his widow, Carrie - E>. Thurber, for and during the term of her natural life, but with full power to sell and convey and dispose of the same absolutely at her volition. A copy of this will with the probate thereof duly authenticated, was filed and recorded in Stoddard county, Missouri, on the 3d day of January, 1903. Carrie E. Thurber and others on March 27, 1902, conveyed an undivided one-half interest in the land here in controversy to one Samuel F. Campbell, and on October 13, 1903, Carrie E. Thurber, by a quitclaim deed conveyed the remaining one-half interest in said land to said Campbell. On February 25-, 1904, said Campbell and wife conveyed the land in dispute to plaintiff Keaton, and this is plaintiff’s chain of title, no link of which, but only the effect of which, is disputed.

The defendants claim title through a sheriff’s deed based on a judgment for delinquent taxes for the years 1894 and 1895, which judgment was rendered on the 23rd day of November, 1897, and the land was sold under said judgment on the 9th of March, 1898-, and passed from the purchaser at said sale by mesne conveyances to defendants, or to their ancestor. The tax proceedings, culminating in the tax sale aforesaid,' were against Carrie E. Thurber, Mollie H. Lemen, Austin H. Lemen, Katie A. Vigar, Edward R. Viger, Birdie E. Stone, and Harry L. Stone, as heirs at law of Nathan T. Thurber, deceased. Their sheriff’s deed in its averments followed these descriptions of these persons.

Since the case was here before, defendant Albert A. Jorndt has departed this life, but his proper heirs at law have been made parties in his stead and they with the other defendants now own whatever title passed at said tax sale. Further details of the facts herein may be seen in Keaton v. Jorndt, 220 Mo. 117.

When the case was last tried and the instant record made, at the close of the case the learned trial court found and adjudged the .title, estate and interests of the said parties both plaintiff and defendants, in said land, as set out in the below excerpt from the judgment, viz:

“That at the date of the sheriff’s sale mentioned in the said decision and judgment of the Supreme Court, the said Carrie E. Thurber was the owner of a life estate in an undivided one-third interest in said lands and that the said Katie A. Viger was the owner of an undivided one-third interest in the fee in said lands subject to the life estate of the said Carrie E. Thurber, and at the date of the said sheriff’s sale the said Mary E. Lemen and Hattie E. Stone were each the owner of an undivided one-third interest in the fee in said lands subject to the said life estate of the said Carrie E. Thurber. Pursuant to said judgment and mandate of the Supreme Court it is therefore considered, ordered and adjudged that the said plaintiff, C. L. Keaton, is the owner of an undivided two-thirds interest in and to said lands subject to the said life estate in an undivided one-third interest thereof.”

From this finding and judgment the appellant, after the usual motion for a new trial, has appealed.

Upon the trial of the instant case the learned court nisi took the view that upon the judgment and mandate of this court the only issue left to be determined by him was the nature and extent of the several interests which.these parties, plaintiff and defendants, had acquired and held in this land by the will of Nathan T. Thurber, and what portion of this interest passed by the sale for taxes in 1898.

I. This case, as the statement of facts discloses, has been here before, and touching the legal effect and conclusiveness of the judgment rendered herein upon such former appeal strenuous contentions are made by the appellant. He states for us his position on this point clearly, thus:

“The circuit court is required to find what interest the several parties had in and to the land in controversy. This can only be done by a retrial of the case, and as there is no limit placed upon the trial court as to the scope of the investigations, it necessarily follows that the trial court must retry the case upon all of the issues presented.”

In our view of the case appellants’s position on the effect of the former judgment herein is not tenable. The mandate of this court, as well as the opinion filed in the case, was offered as evidence upon the trial nisi. We need not stop to consider whether this was necessary or not, or whether the trial court took judicial notice of the judgment rendered here, or not. We notice it ourselves, because it is a part of the record in the ease, a point, we take it, which appellant has tacitly conceded, since though the mandate was offered below, he has not seen fit to carry it forward into the record before us. Be this as it may, this court will judicially notice “the record appearing on its files of a former appeal in the same case— so far as to notice the existence of the earlier proceeding and what was done in the premises, the legal relation of the parties at different times and their good faith, the identity of the subject-matter, and the like,” but not the evidence adduced upon the former appeal. [1 Chamberlayne, Ev., sec. 683; State v. Jackson, 106 Mo. 174; State v. Ulrich, 110 Mo. l. c. 355; Dawson v. Dawson, 29 Mo. App. 521.]

Turning our attention then to the opinion in this case, we note (220 Mo. l. c. 118), that it was “reversed with directions.” Looking to the judgment we see that for details and to ascertain what was done, we must turn to the opinion. The judgment so directs us when it-is content with saying that the judgment below is in all things “reversed, annulled and for naught held . . . and the said cause ... remanded to the said Stoddard County Circuit Court for further proceedings to be had therein in conformity with the opinion of this court herein delivered.” Turning back then as directed by the judgment, to the opinion and analyzing it fairly, it is pretty plain that it falls within the rule of those cases which are “reversed and remanded with directions,” wherein it becomes the duty of the trial court to do those things, and those only which it is directed to do by the mandate contained in the judgment. [Atkison v. Dixon, 96 Mo. 577; Taussig v. Railroad, 186 Mo. 269; Scullin v. Wabash Railroad Co., 192 Mo. 1; Wise Coal Co. v. Zinc & Lead Co., 143 Mo. App. 587; Chouteau v. Allen, 74 Mo. 56; Stump v. Hornback, 109 Mo. 272; Fanning v. Doan, 146 Mo. 98; Hastings v. Foxworthy, 34 L. R. A. 321, and cases cited.] In the case of Chouteau v. Allen, supra, at page 59, it was said:

“When this cause was here before, we affirmed the judgment in some particulars, and reversed it in others, and remanded the cause with specific directions to govern the further steps of the trial court. Those directions have not been followed, nor bur mandate obeyed. That mandate was in the nature of a special power of attorney. By it, so far as the parties to the record were concerned, authority and jurisdiction was granted to the lower court to take such steps as were ordered, and such incidental steps as were necessary to carry our mandate into execution. Beyond this, nothing. The action of the lower court in permitting Allen to amend his answer and in opening the cause for rehearing and for the trial of new issues never raised before — issues directly at variance with and repugnant to his former issues — was altogether coram non judice, and, of consequence, void.”

We think that a fair comparison of the judgment in this case upon the former appeal with those shown in Chouteau v. Allen, 70 Mo. 290, and Chouteau v. Allen, 74 Mo. 56; Shroyer v. Nickell, 67 Mo. 589, and Shroyer v. Nickell, 55 Mo. 264, will disclose clearly that all the trial court could do was to try the issue left untried and left undecided here for lack of evidence and data, as it was stated.

Upon the former appeal the directions were “to enter up a judgment for defendants vesting in them the title to the interests and shares of said Carrie E. Thurber and Katie A. Yiger in said lands acquired by them [defendants] by virtue of said sheriff’s deed under said tax judgment, and to enter a further decree in favor of plaintiff for whatever interests he may have acquired by deeds of conveyance in the shares or interests of Mary A. Lemen and Hattie E. Stone.”

In the first trial, on which said former appeal was based, the Stoddard Circuit Court did not determine the respective interests of the widow and heirs of Nathan T. Thurber, because it had no occasion to do so, since it found that the deeds of Carrie E. Thurber to Campbell of March 27, 1902, and September, 1903, conveyed to said Campbell, and by mesne conveyances to plaintiff Keaton, the whole estate in all the land here in controversy. This court did not determine these interests on the former appeal for the reason that the nature and extent of the interests of Carrie E. Thurber and Katie A. Yiger were not determined in the circuit court. So it is but academic to discuss whether there was or not in fact sufficient data in proof from which to determine these interests; the fact remains that this court' did not determine them.

The proof in the record before us shows and we find that said Thurber died testate on March 19, 1896, leaving a widow, Carrie E., and three married daughters as his only heirs at law, viz., Hattie E. Stone, Mary A. Lemen and Katie A. Yiger. It is manifest that upon the former appeal this court duly considered the tax suit and its details and the sheriff’s deed bottomed thereon and its effect, and the extent of its effect on conveying title. We considered and adjudged that all title in the lands of Carrie E. Thurber and Katie A. Yiger passed out of them and into defendants by virtue of such tax deed, but that such deed did not affect or pass the title of Hattie Stone or Mary Lemen. We did not undertake to say what the nature or extent of these several persons’ interest so passed from them or left in them, was. That question alone we remanded back to the circuit court to be by it determined. There are at least three views to take of the nature and extent of these interests. Two of these are urged on us by the contending parties here, respectively, another one inevitably intrudes itself into the case.

We have seen that in the instant appeal, the learned court nisi decreed that Carrie E. Thurber’s interest was a life estate in an undivided one-third of the land in controversy, and that Katie Yiger had a remainder in fee in an undivided one-third thereof, subject to said life estate of Carrie E. Thurber, and that these interests passed to defendants, and that plaintiff by his mesne conveyance through Carrie E. Thurber took the undivided two-thirds of the land in fee. This is one of the views to be taken of the case, and the one taken, we think erroneously, by defendants, since they do not appeal.

II. Another theory of the case, and that- urged upon us by plaintiff, who is the appellant,' is that since Carrie E. Thurber took under the will a life estate with power to convert the same into an absolute estate in fee by a conveyance; and, since she did exercise this power to convey in March, 1902, and September, 1903 (four years after the sale for taxes), the title to the whole estate passed to and vested in appellant through a sort of saltatory exercise by means of which the title passed over or around the intervening tax sale. This theory we lay by for further discussion later.

Still another theory of the case is that since by .the provisions of the will Carrie E. Thnrber took a life estate in the whole of the land, and this was. the actual status of the title at the time of the tax suit and sale, and since her entire interest and that of Katie passed, the defendants take (subject to an appeal mayhap, which they failed to take herein) the life estate (of Carrie) in the whole of the land and an undivided one-third thereof in fee (Katie’s interest) subject to said life estate. It is fairly plain that one of these views should prevail. The itching question, which disposes when ruled, of the whole case, is: Which one?

There is scant 'doubt that the will conferred on Carrie E. Thnrber the power at her own volition to convert the life estate given her into a fee, and thus to cut off the remaindermen. But she had not exercised this power when the lands were sold for taxes in 1898, and did not do so for some five years thereafter. She could have exercised such power at any time after the death of her husband, but chose to withhold action therein till 1902, and in the meantime the land was sold for taxes.

When the land was sold for taxes the law simply required that the suit for taxes should be brought “against the owner of the property.” [Sec. 9303, R. S. 1899.] Who were the owners of this land when this tax suit was brought? Time and again we have held that this meant, in the absence of information to the contrary in the collector, or in the purchaser at the tax sale, he who appeared by the record to be the owner. [Schnitger v. Rankin, 192 Mo. 35; Rothenber ger v. Garrett, 224 Mo. 191; Ohlmann v. Sawmill Co., 222 Mo. 62; Payne v. Lott, 90 Mo. 676.]

This phase of the law is succinctly set out by Judge Gantt in the case of Rothenberger v. Garrett, supra, where at pages 197 and 198, it is said:

“By section 9303', Revised Statutes 1899', it is provided that all actions for bach taxes, commenced under. the provisions of that chapter ‘ shall be prosecuted in the name of the State of Missouri at the relation and to the use of the collector and against the owner of the property.’ It has been ruled that while these tax judgments are against the property and are not personal, still the tax is assessed against the owner, if known, and the law looks to him for payment of the tax and he is a necessary party to a suit to enforce the lien of the State. [Gitchell v. Kreidler, 84 Mo. 472.] It was ; also ruled in that case that the beneficiary in a deed of trust, who has not been made a party to such tax proceeding, is not foreclosed, but may redeem the land from the sale of the taxes. [Stafford v. Fizer, 82 Mo. 393.] Since the decision in Vance v. Corrigan, 78 Mo. 94, it has been deemed sufficient for the collector to bring the suit against the apparent or record owner of the land. [Harrison Machine Works v. Bowers, 200 Mo. l. c. 231-2; Land Co. v. Bippus, 200 Mo. l. c. 697 and cases therein cited; Manwaring v. Lumber Co., 200 Mo. l. c. 727.] The doctrine is deducible from these cases that a purchaser at a tax sale under a judgment for taxes under our Act of 1877, acquires a good title as against the holder of an unrecorded deed from such apparent owner (Allen v. Ray, 96 Mo. 542; Payne v. Lott, 90 Mo. 676; Crane v. Dameron, 98 Mo. 567), unless the evidence discloses that at the time the collector brought his suit to enforce the lien of the taxes, or at the time of their purchase the purchasers at such tax sale, know or have notice that the title has been transferred from such apparent record owner to some other person, who is not made a party to said tax proceedings. [Watt v. Donnell, 80 Mo. 195; Stuart v. Ramsey, 196 Mo. l. c. 415.] In Powell v. Greenstreet, 95 Mo. 13, it was held that it must be taken as settled law that purchasers at these sheriff’s sales made on execution in tax suits acquire only the right, title and interest' of the defendants in the tax suit. . The title acquired by such proceedings is derivative. [Blevins v. Smith, 104 Mo. 583.]”

Consonant with our holdings consistently adhered to since the case of Vance v. Corrigan, 78 Mo. 94, that the words of the statute “against the owner of the property,” .meant where required or necessary, “against the owner of the property as shown by the land records,” the Legislature in 1909 amended the statute (section 11498) so that it now reads just as we had long construed it. But this was not the statute when the tax suit here in question was brought. It is manifest, when we read and compare carefully the many holdings on this precise question, that the above rule of construction was established for the benefit and protection of the collector, and not for the benefit of the owner of the land or him who was obligated to pay the taxes. In the absence of other information,‘the collector was entitled to fasten and foreclose the lien of the State upon the land by suing him who appeared from the records to be the true owner. [Schnitger v. Rankin, 192 Mo. 35; Shuck v. Moore, 232 Mo. 649; Hilton v. Smith, 134 Mo. 499; Payne v. Lott, 90 Mo. 676; Simonson v. Dolan, 114 Mo. 176; Vance v. Corrigan, supra.] But if the collector knew the real owner and sued one who while by the record appearing to be the real owner, yet was not, and the collector knew he was not, or if the buyer at the tax sale knew the defendant in the tax suit was not the real owner, although so appearing by the records to be, no title passed to the purchaser at such a tax sale. [Stuart v. Ramsey, 196 Mo. 404; Zweigart v. Reed, 221 Mo. 33; Rothenberger v. Garrett, supra; Ohlmann v. Sawmill Co., 222 Mo. 62.] But where there is no record owner shown, the true owner must be sued. [Wood v. Smith, 193 Mo. 484.] The latter case makes it fairly clear that the rule of the sufficiency, ordinarily, of a suit against the record owner is a rule for the protection of the collector, and that this rule yields always to knowledge to the contrary, to knowledge of the true facts, and of course to the true facts themselves, when it says: “The plaintiff relies upon the doctrine that the collector in instituting a suit for taxes is only obliged to look to the record of deeds to see who the owner of the property is, and that a judgment for taxes against the apparent owner conveys a good title to the purchaser at the tax sale, as against the true owner, whose deed is not recorded at the date of the institution of the tax sale. That is the doctrine in this State. [Vance v. Corrigan, 78 Mo. 94; Watt v. Donnell, 80 Mo. 195; Payne v. Lott, 90 Mo. 676; Evans v. Robberson, 92 Mo. 192; Allen v. Ray, 96 Mo. 547; Simonson v. Dolan, 114 Mo. 176; Weir v. Cordz-Fisher Lumber Co., 186 Mo. 388.] And the same rule is recognized in Moore v. Woodruff, 146 Mo. 597.”

In other words, the statute says to the collector: Sue the “owner of the property.” [Sec. 9303, R. S. 1899.] We have said to the collector by our construction of this section: If, however, you do not know the true owner, you may sue the record owner and the title of the true owner will pass by a sale bottomed upon such suit. [Rothenberger v. Garrett, 224 Mo. 191, and cases cited, supra.]

While as between the life tenant and the remainderman the former is bound to pay the annual taxes (Bone v. Tyrrell, 113 Mo. l. c. 188; Bradley v. Goff, 243 Mo. l. c. 102; Hall v. French, 165 Mo. l. c. 438), yet with this obligation inter sese the State has nothing to do. [2 Cooley on Taxation, 818, and cases cited.] If the life tenant fails to fulfill this duty, and both the life tenant and the remainderman be properly sued and the land be sold, the- State’s lien is foreclosed npon the fee; for the lien of the State is upon the fee, and a fee passes by the sale and by the deed of the sheriff, other things being equal. [Sec. 11501, R. S. 1909; Hall v. French, supra; 2 Cooley on Taxation, 960.]

Here in the instant case, Nathan T. Thurber who appeared by the land records of Stoddard county to be the owner of the land, was dead when the tax suit was brought. The real, or true, owners at this time were Carrie E. Thurber, who in fact or as the facts then were, owned a life estate in the whole of the land, with remainder in fee in Katie A. Yiger, Hattie E. Stone and Mary E. Lemen. If the collector had then sued the apparent record owner, Nathan T. Thurber, since he was then dead, a fact evidently known to the collector at the time, we need cite no authority to prove that such suit against the dead man would have been utterly void.. Clearly then a suit against the record owner would have been futile. The whole trend of the cases shows that no valid action was tenable by-the collector to foreclose the lien of the State for taxes, except to sue the real owners. [Wood v. Smith, supra.] This he did, or attempted to do, falling so far short thereof as may be seen in Keaton v. Jorndt, 220 Mo. 117.

The defendants have not appealed. So, if we conclude that they are entitled to at least as much interest in these lands as they took by the judgment nisi, we need not as a matter of duty take the time to investigate and determine, and the space to write down, whether they are not entitled to take.more than the court below gave them. The will of Nathan T. Thurber was not recorded in Stoddard county until long after this sale for taxes, through which defendants claim. There is no proof of actual notice of the contents of this will either as to the collector or as to the purchasers of this land at the tax sale, and since the will was not recorded in Stoddard county at said time it was not constructive notice to these purchasers. [Graves v. Ewart, 99 Mo. l. c. 17; Stevens v. Oliver, 200 Mo. l. c. 513; Keith v. Keith, 97 Mo. l. c. 228.] It was the duty of the Thurbers to pay these taxes, and likewise their duty and privilege (Sec. 4633, R. S. 1899), and within their power alone, to have this will recorded in Stoddard county within six months from the date of its probate. In the absence of the performance of such duty to record the will and lacking actual notice on the part of the collector of its provisions, or of its existence, he had the right to assume, as he did, that Nathan T. Thurber had died intestate and to sue his widow and heirs as such for taxes. We will see later that the discussion involves not only the correctness of the collector’s acts, but also what title the purchaser took by reason of the tax sale which culminated from these acts.

The collector sued those, then, whom he believed to be the record owners by descent cast, or by inheritance according to the Missouri statute of descents. In effect those whom he sued, and in the capacity in which he sued them, were the record owners — knowledge of the will being lacking and constructive notice by recording same being likewise absent. The collector in good faith sued all persons who had an interest in the land, in such wise as that, no errors in the service occurring, the title in fee would have passed to the purchasers at the tax sale. These purchasers believed they were buying the whole title, that is to say, a fee; likewise the collector was endeavoring to sell the fee. The devisees here holding such whole title happened to be identical in names and person with the heirs of Nathan T. Thurber who were actually sued, though they were sued as heirs in the belief in good faith that they were heirs and not devisees. In such case then, did the real title which they actually possessed at the time as devisees, pass, or did that title only pass which the collector assumed they had as heirs 1 Clear it is that but for the error in the order of publication as to the names of Mary A. Lemen and Hattie E. Stone* written therein as Mollie H. Lemen and Birdie E< Stone, respectively, the whole interest of all of the parties to the suit would have passed. This for the reason that the collector sued those who stood in the shoes of the record owner, in fact he sued the record ovmers by descent, if we may coin an apt, though, scarcely accurate, expression. Manifestly, then by the very strongest analogy, the title passed which Carrie E. Thurber and Katie A. Viger actually had, and not that which the collector and the purchaser had every good and legal reason to believe they had. [Port Townsend v. Trumbull, 40 Wash. 386.] This for the reason, that if A, who appears by the record to be the owner of a parcel of land, is sued for taxes after he has conveyed the land to B, who withholds his deed from record either willfully or by accident or inadvertence till after sale of the land for taxes, B will lose the title which he actually has, though the collector sue A, the record owner, as the actual owner, believing in good faith that A and not B is such actual owner; and likewise the purchaser who buys at this sale for taxes in the bona-fide belief that he is getting the title of A, and not the title of B, will yet take the 'title of B. We hold then that by the tax sale the life estate of Carrie E. Thurber in the whole of the land as it existed in 1898, when the sale for taxes was had, and prior to her exercise of the power given her by will to convert of her own volition her life estate into a fee by a conveyance, passed to the purchaser at the tax sale. Mach color, as we have seen, if not absolute certainty, is lent to this view by the express language of our statute (Sec. 9303, R. S. 1899), which was in force when the tax suit was brought and by the views expressed by a distinguished author as to who is the owner of land for the purposes of assessment and enforcing the State’s lien for taxes. [Black on Tax Titles, Sees. 106 and 173.] The learned court nisi held that only her dower in the undivided one-third which she would have taken as the widow of Nathan T. Thurber, if said decedent had died intestate, passed. In this we think he was in error, but since respondents are content and have not appealed, but have accepted this finding, we are not called on to reverse the case for an erroneous finding against respondents in which they so gracefully acquiesce.

III. Learned counsel for appellants raise other questions which we have considered, but which in our view will not aid them in any wise even should we further prolong this opinion by discussing them. Some of these contentions would, it seems to us, utterly deféat the whole title of appellant. For example, it is urged, as we have already stated the proposition in paragraph two, supra, that when Carrie E. Thurber, four years after the sale of the land for taxes, exercised'the power of election conferred upon her by will to convert her life estate into a fee in her grantee by a conveyance, and thus defeated the contingent remainder given by the will to Katie A. Vi'ger and others of the children of Nathan T. Thurber, such election by her had the effect of relating back to the date of the probate of the will and so converted the title conveyed to Campbell into a fee as of such date. We need not discuss whether such would or would not ordinarily occur; the question here is did it occur as against the State when a sale for taxes intervened? Could Carrie E. Thurber postpone and even defeat the foreclosure of the State’s lien for taxes indefinitely, or so long as she desired, or so long as she should live, by inaction, or by the exercise of an election, after the State had foreclosed the tax lien? It is but idle to say that a sale for taxes, a transfer of title in invitum, could serve to execute the power of conversion into a fee and cut out the remaindermen, or that ordinarily anything short of a voluntary exercise hy Carrie E. Thurber would suffice in this behalf. [Garland v. Smith, 164 Mo. l. c. 15.] It is equally as idle to contend that a tax suit could not reach the land and cast a lien upon it, while it stood prima facie as a life estate in Carrie E. Thurber. The absurd suggestion obtrudes itself that if the conveyance pi Carrie E. Thurber made in September, 1913, related back to the date of the will, it may be urged with equal force that by the same token it related back to the sheriff’s sale, and since it has been held herein that whatever interest she had passed by this sale (Keaton v. Jorndt, 220 Mo. l. c. 134), therefore the whole fee passed because of her subsequent exercise of the power given her, to convert her estate into a fee. Clearly this is not a consummation to be wished, devoutly or otherwise, by appellant, though he contends for just as illogical a theory. We think the bare statement of the proposition discloses the utter fallacy of it.

Likewise also as to the strenuous contention that she was in actual possession of the land, presumably when the tax suit was begun and when the sale for taxes was had, though the record we think falls short of showing possession as of such date. If for the sake of argument we grant her possession as of the date of such tax sale, or as of the date of bringing the suit for taxes, then notice of the actual condition of her title, is imputed to the collector and to the purchaser at the tax sale, as such ownership actually then existed and as shown by the unrecorded will, prior to election to carry out the power, and it also gave notice of the power of election to convert her life estate into a fee. [Edmunson v. Alexander, 32 Neb. 562.] In such case the life estate of Carrie E. Thurber in the whole land in dispute would pass because she was properly in court and whatever interest she had did pass by the tax sale, it has already been held. [Keaton v. Jorndt, 220 Mo. 117.] The first contingency we have seen existed for other reasons; the second super-added to appellant’s doctrine of relation hack as we have already seen it would likewise do for other reasons, would defeat utterly the whole estate of appellant.

It results from the conclusions reached that the case should be in all things affirmed. Let this be done.

Walker, P. J., concurs; Brown, J., not sitting.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    ELLA M. PICKEL, Appellant, v. WILLIAM PICKEL et al.
    Division Two,
    June 23, 1914.
    1. APPEAL: Order Functus Officio. It is useless to reverse or modify an order or judgment 'which has by its own terms expired.
    2. -: -: From Order Modifying Judgment: Ancillary Matter. Where plaintiff brought an equity suit to set aside a transfer of stock from one defendant to another, upon which execution had been levied to pay an existing judgment in her favor, and in aid of that suit asked for and obtained on injunction prohibiting a sale or transfer of the stock pending the equity suit, and having recovered judgment and defendants having appealed and given a sufficient bond, and the said judgment having been affirmed on appeal, an order of the circuit court, made after defendants had appealed and given bond, by which so much of the judgment as enjoined the sale and transfer of the stock was suspended during the appeal, is dead by its own terms, and hence an appeal from that order will be dismissed.
    Appeal from St. Louis City Circuit Court. — Son. Demiel D. Fisher, Judge.
    Appeal dismissed.

      Randolph Laughlin for appellant.

      Barclay, Fauntleroy, Cullen S Orthwein for respondents.
   BROWN, J.

This appeal relates to a cause which has twice been before ns. [Pickel v. Pickel et al., 243 Mo. 641 and 251 Mo. 197.] The particular appeal now under consideration was granted to the St. Louis Court of Appeals, and by that court transferred here on the ground that it involved an amount in excess of $7500.

Plaintiff (appellant) is the wife of defendant Frederick J. Pickel, and said Frederick J. Pickel is the son of his co-defendant William Pickel. During the year 1910 plaintiff obtained a judgment in the circuit court of St. Louis City against her husband, Frederick J. Pickel, for maintenance. In the same year she also obtained a judgment against said last-named defendant for legal expenditures incurred in defending an unsuccessful divorce suit. To collect the judgments thus obtained she sued out executions and caused the same to be levied upon certain corporate stock supposed by her to belong to defendant Frederick J. Pickel. Defendant William Pickel having filed with the sheriff a claim to said corporate stock, as provided by statute, plaintiff, on March 16, 1911, instituted in the circuit court of St. Louis City an action in equity to set aside as fraudulent the transfers of corporate stock from defendant Frederick J. Pickel to his co-defendant William Pickel. By a stipulation filed in the equity suit the trial court was given jurisdiction to determine in that action .the status and title of the corporate stock upon which plaintiff had caused executions to be levied.

In the equity suit before mentioned the plaintiff had judgment, which decree enjoined the sale of the corporate stock found by the court to have been fraudulently transferred to William Pickel. From that judgment defendants appealed to this court and tendered an appeal bond in tbe sum of $20,000. Upon tbe filing of that bond the trial court, in addition to approving the bond and granting the appeal prayed for, modified its judgment so as to suspend the injunction prohibiting the sale of the corporate stock in controversy, and also enjoined plaintiff from suing out executions upon her judgments for maintenance and attorney’s fees pending the aforesaid appeal.

The plaintiff then appealed from that part of the order granting the aforesaid appeal which suspended her injunction against the sale of the corporate stock so fraudulently transferred, as well as that part of 'said order which restrained her from suing out executions upon her judgments for maintenance and attorney’s fees. The particular part of the said order from which the instant appeal is prosecuted reads 'as follows:

“And it appearing to the court that said appeal bond is sufficient to fully protect the rights of the plaintiff it is ordered, adjudged and decreed that that part of the decree entered herein on the 24th day of July, 1911, enjoining the defendants, and each of them, from transferring or assigning and from attempting to transfer or assign, and from delivering, hypothecating, mortgaging, pledging, or encumbering said stock or any portion thereof, or any certificate or certificates, thereof, and from.setting up any claim thereto, or to any part thereof, of any kind, or character, against any execution which plaintiff may cause to be issued on said orders and judgments mentioned in paragraph one of the decree, or either of them, and levied upon the same, or upon any part thereof, and from obstructing or delaying, and from attempting to obstruct or to delay, by the filing of any notice, third-party claim, bonds, or other paper, or in any other manner or form whatsoever, any sale under any such execution which the plaintiff may cause to be levied on said stock, or on any part thereof, be arid the same is hereby suspended pending the appeal herein, and that pending this appeal, the plaintiff, her agents or httomeys, are hereby enjoined and restrained from levying any execution upon the property mentioned and described in the decree, heretofore entered, or upon any income or increase of said property, or from causing any execution to issue against the defendants in this case, and from causing any execution, fee bill, or' other process based on the judgment, or orders, in favor of plaintiff and against defendant, Frederick J. Pickel, as mentioned in said decree and plaintiff’s amended bill, to be levied upon any of the property mentioned and described in the decree, and from selling the same so long as this cause is pending in any appellate court.”

I. We are convinced that whatever merit (if any) this appeal may have possessed when taken there is now no cause for its consideration.

The order appealed from shows on its face that it was only to remain in force during the pendency of the appeal in the equity suit in which the aforesaid appeal bond was filed. If any injury resulted to plaintiff by the order appealed from, that injury is now at an end, because the appeal in the equity suit (during the pendency of which the order was to have force and effect) was disposed of on June 1, 1912, 243 Mo. 641, which renders the present appeal functus officio.

It is useless to consider and reverse or modify an order or judgment which has expired, and is dead by its own terms. We have quite too many live matters pressing upon us for consideration to warrant the “wasting of ammunition in shooting dead ducks.” In State ex rel. Ashton v. Imel, 243 Mo. 174, it was held that a final judgment of this court sustaining the validity of a will renders nugatory all appeals from orders of the probate court pertaining to the appointment and duties of an administrator pendente lite.

In Wells v. Green, 159 U. S. 651, l. c. 653, it was said: “The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.”

The same rule of law is recognized in Kalbfell v. Wood, 193 Mo. 675, and in Cape Girardeau & Thebes Bridge Terminal Railroad Co. v. Bridge Co., 215 Mo. 286.

It is asserted by respondents, and not denied by appellant, that since the judgment obtained by plaintiff in the equity suit before mentioned was affirmed by this court said judgment has been complied with by the payment of the indebtedness which that suit was instituted to collect. The original judgment in this case (which appellant urged us to affirm, and which we did affirm) found and adjudged that defendant Frederick J. Pickel had fraudulently transferred to his father William Picked corporate stock aggregating in value about $10,000, for the purpose of defrauding plaintiff, his wife, of her claim for maintenance and attorney’s fees. Said judgment also decreed that defendant William Pickel be permitted to retain the corporate stock so fraudulently transferred to him upon the execution of a bond in the sum of $10,000 whereby he would become obligated to plaintiff to pay her all moneys that may hereafter become due on said judgment against said Frederick J. Pickel for maintenance, and “under such modification thereof of orders supplemental thereto as may be made from time to time by the court having jurisdiction of the cause wherein the same is entered.”

Upon the affirmance of said original judgment in the equity suit William Pickel did execute the aforesaid $10,000 bond to plaintiff, and that bond secures to her the payment of such additional sums as may hereafter become due under her decree for maintenance.

We Lave not overlooked the fact that in the reply brief filed by appellant’s attorneys it is asserted that this appeal was consolidated with another cause pending in the St. Louis Court of Appeals wherein Ella M. Pickel is respondent, and Frederick J. Pickel is appellant (No. 13756). However, there is nothing before us to show that said causes were consolidated by the Court of Appeals. Among the numerous papers deposited with this appeal is a motion to consolidate filed by appellant in the Court of Appeals on January 28, 1913, but if any action was taken on that motion it nowhere appears in any record before us. The case wherein the plaintiff is appellant (No. 13181) is the only one which has been certified to us by the Court of Appeals, and the only one which has been docketed or considered.

For the reasons hereinbefore stated this appeal will be dismissed. It is so ordered.

Walker, P. J., and Far is, J., concur.


author: WILLIAMS, C.

text:
    CITY OF KIRKWOOD v. M. W. CRONIN et al., Appellants.
    Division Two,
    June 23, 1914.
    1. CONDEMNATION: City of Fourth Class: Jury of Freeholders: Record of Appointment. Where the order appointing the mayor’s jury to determine .and assess damages and benefits in a proceeding by a city of the fourth class to widen a street, is shown by the city clerk’s “transcript of the entries’’ to have been filed with him, and the written report of the jury as set forth in the transcript recites that the appointment of said jury was duly entered by the city clerk upon the records of the city, it is held that the appointment of the jury was made a matter of record so as sufficiently to comply with the provisions of See. 9415, R. S. 1909.
    2. -: -: -: Notice: Waived by Appearing Generally. Property owners who, in a proceeding by a city to condemn lands under Sec. 9415, R. S. 1909, appeared generally both, before the mayor’s jury of freeholders and upon appeal in the circuit court, waived any irregularities in the service of notice of the hearing before the mayor’s jury.
    3. -: -: Change from Special Charter: Proof. A Statement in appellants’ abstract of the evidence that certain records introduced by the respondent tend to prove that said respondent is a city of the fourth class, is a sufficient showing that said city, which originally operated under a special charter, has reorganized as a city of the fourth class under the general law.
    4. EVIDENCE: Offer of Proof: Appeal. Before a trial court can be convicted of error for excluding evidence, it must appear that an offer to prove was made, showing what the testimony would be if the witnesses were allowed to testify. An offer to prove should be specific and definite.
    5. CONDEMNATION: City of Fourth Class: Sec. 9415, R. S. 1909: Public Use: Evidence. In a proceeding by a city of the fourth class to condemn land under Sec. 9415, R. S. 1909, any competent evidence should be admitted that tends to show that the land is not being condemned for a public use.
    g -: -: -: Appeal to Circuit Court: Trial de novo. Since Sec. 9415, R. S. 1909, governing proceedings by cities of the fourth class to condemn land, provides that “appeals may be taken from the decision of the jury of freeholders in the same time and manner and to the same court as from judgments of justices of the peace,” and nothing is said as to what shall be done with a case after it reaches the circuit court, the circuit court on an appeal to it has no authority to remand the case to the mayor’s jury of freeholders, but must grant a trial de novo.

    Appeal from St. Louis County Circuit Court. — Hon. G. A. Wurdeman, Judge.
    Reversed and remanded.

      Albert Chandler for appellants.
    (1) The appointment of the mayor’s jury must be entered on the city records. Then it must be shown on the face of the record that notice has been served on all property owners affected. Both are parts of the record proper, and therefore jurisdictional. Tarkio v. Clark, 186 Mo. 297; Sec. 5993, R. S. 1899, now 9415, R. S. 1909. (2) On appeal to the circuit court, if the record confers jurisdiction to proceed, there should be a trial de novo; and therein the defendant may demand a jury. Secs. 7579, 7588, 9415, R. S: 1909; Tarkio v. Clark, 186 Mo. 292; Turlow v. Ross, 144 Mo. 240; Drainage Dist. v. Campbell, 154 Mo. 160; In re Bergers’ Estate, 133 S. W. 96. (3) The court erred in refusing to receive evidence that the proceeding was not for any public purpose or use. Kansas City v. Hyde, 196 Mo. 512; Railroad v. Railroad, 94 Mo. 542. (4) The courts will take judicial notice that Kirk-wood is a municipality organized under a special charter. Kirkwood v. Heege, 9 Mo. App. 576; Laws 1865, p. 415, amended Laws 1869, p. 124; Nutter v. Railroad, 22 Mo. App. 328; Stone v. Halstead, 62 Mo. App. 136. (5) Courts cannot take judicial notice of elections, and the results and regularity of elections, by which towns may attempt to reorganize. If a town asserts that it has succeeded in reorganizing under the general law it must prove it in a condemnation case. It cannot invoke a power of eminent domain granted by general law simply by assuming it. Hopkins v. Railroad, 79 Mo. 98; School Dist. v. Dorton, 125 Mo. 442-3; Felton v. Newport, 92 Fed. 477; Johnson v. Common Council, 16 Ind. 227; Temple v. State, 15 Tex. App. 304.

      jRobert C. Powell for respondent.
    (1) Kirkwood is, and at the time of the proceedings by the city in widening Clinton Place from Webster avenue to Taylor avenue was, a city of the fourth class. Railroad v. Kirkwood, 159 Mo. 250; State ex rel. v. Donworth, 127 Mo. App. 379; Trust Co. v. Pagenstecher, 221 Mo. 121;' Kirkwood v. Allen, 138 Mo. App. 480; State ex rel. v. Byrne, 146 Mo. App. 488; Kirkwood v. Edwards, 147 Mo. App. 610; Kirkwood v. Edwards, 162 Mo. App. 580; G-ratz v. Kirkwood, 165 Mo. App. 207; Heidorn v. Kirkwood, 169 Mo. App. 158. (2) The record shows that all the necessary steps required by statute were properly taken by the respondent city up to and including the decision and the report of the jury of freeholders and adoption thereof by the board of aldermen of the city of Kirkwood. Sec. 5993, R. S. 1899; Tarkio v. Clark, 186 Mo. 285. (3) That part of Sec. 5993, R. S. 1899, governing appeals to the circuit court from the decision of a jury of freeholders is void for vagueness, indefiniteness and uncertainty. State ex rel. v. Street Railway, 146 Mo. 168; Drake v. Drake, 4 Dev. 115; Ward v. Ward, 37 Tex. 392; Commonwealth v. Bank, 3 Watts & Serg. 173; Sutherland on Statutory Construction, secs. 261, 431; State ex rel. v. Ashbrook, 154 Mo. 375; State v. Whitaker, 160 Mo. 59. (4) Should this court hold, however, that that part of Sec. 5993, R. S. 1899, governing appeals to the circuit court is not void for vagueness, uncertainty and indefiniteness, the appellants lost nothing’ by the decision of the circuit court in finding in their favor and against the report of the jury of freeholders. If any error existed in the trial court it was harmless error so far as these appellants were concerned, and it is still possible to carry out the order made by the trial court remanding ‘ ‘ to the mayor and board of aldermen of plaintiff city for a new inquisition of damages by another jury of freeholders to be appointed.” Sec. 4177, R. S. 1899, now 8060, R. S. 1909; Sec. 659, R. S. 1899, now 1850, R. S. 1909.
   WILLIAMS, C.

Respondent, a city of the fourth class, seeks, by the exercise of the right of eminent domain (as provided in Sec. 9415, R. S. 1909), to condemn the private property °f appellants and others for the purpose of widening one of the streets (Clinton Place) in said city.

The first step in this proceeding was taken June 10, 1909, when said city by ordinance provided for the widening of said street, etc. A hearing, in which appellants participated, was had before the mayor’s jury, consisting of “five disinterested freeholders of the city,” duly appointed by the mayor of said city as provided by the foregoing statute.

Afterwards, in August, 1909, appellants appealed, from the award or decision of said jury of freeholders to the circuit court of St. Louis county.

When the case came on for hearing in the circuit court, appellants demanded a jury and trial de novo. The court refused the request for a jury and appellants excepted to the action of the court. The court heard evidence with reference to the benefits resulting to, and the damages sustained by, appellants as the owners of the land sought to be taken. Defendants offered to prove that the land was not being condemned for a public use or purpose. The court refused the offer and defendants excepted.

The judgment of the circuit court was as follows: “Now come the parties by their attorneys, and the court having heard the evidence and the arguments of counsel and being fully advised in the premises doth find that the plaintiff as' a city of the fourth class instituted condemnation proceedings under section 5993, Eevised Statutes of Missouri, 1899, for the purpose of widening a public street known as Clinton Place in said city, and thereby appropriating to the public use lands belonging to each of the defendants, which were properly described in the proceedings of the municipal authorities, a transcript of which proceedings is filed herein, and stands as and for the plaintiff’s pleadings, the defendants having duly appealed to this court from the award of the mayor’s jury of freeholders; that said award and the compensation allowed defendants thereby for the taking of the lands of defendants Cronin and McCabe, and each of them, is inadequate, unreasonable and confiscatory, and that said mayor’s jury failed to allow said defendants any damages for the injury to the balance of the lots and lands of said defendants and that such lots were injuriously affected and damaged by said proceedings; wherefore, it is considered by the court that the judgment, award and finding of said mayor’s jury herein be and the same is hereby set aside and for naught held and that this cause be and the same is hereby remanded to the mayor and board of aider-men of plaintiff city for a new inquisition of damages by another jury of freeholders to be appointed herein, in accordance with law, and that the defendants have and recover their costs herein, and have execution therefor. ’ ’

Appellants duly perfected an appeal to this court. Such further statement of facts as shall be necessary to an understanding of the points involved will be made in the course of the opinion.

I. Appellants contend: (1) That the appointment of the mayor’s jury was not entered upon the records of the city as required by section 9415, Revised Statutes 1909; (2) that the record fails to show that appellants were served with notice of the hearing before the mayor’s jury.

Appellants’ abstract of the record does not set forth in full the transcript of the proceedings made out and certified to by the city clerk-when the case was appealed to the circuit court, but sufficient appears from the abstract to show that the appointment of the mayor’s jury was made a matter of record in the city clerk’s office. The city clerk’s certificate to the transcript states that the transcript is “a full, true and complete transcript of the entries,” etc., in said proceeding. In the transcript, so certified, is a copy of the written order of the mayor appointing the jury of freeholders which showed that it was filed with the city clerk. Furthermore the written report or decision of the freeholders ’ jury which is set forth in the transcript expressly recites that the ‘‘ appointment of said jury of freeholders was duly entered by the city clerk, upon the records of the city under date of June 10, 1909.”

With reference to the second point raised by appellants' the clerk’s transcript recites that appellants were served with notice of the hearing before the mayor’s jury at least five days before such hearing. What purports to be a return of the city marshal in serving said notice is copied into the clerk’s transcript. This return, as copied into the transcript, does not contain the name of any person upon whom service was had, but a blank space exists where the names should appear. But be that as it may, appellants are not in a position to complain in this regard. The record shows that appellants were present or represented at said hearing and participated therein. If there was any irregularity in the service of the notice upon appellants, the same was waived by them in appearing generally to said proceeding both before the mayor’s jury and upon the hearing in the circuit court. [City of Tarkio v. Clark, 186 Mo. 285, l. c. 298.]

II. It is further contended that the city of Kirk-wood was originally a city operating under a special charter which did not give it authority to exercise the right of eminent domain and that there *s no ev^ence f° show that said city has ever reorganized as a city of the fourth class under the general law. This contention of appellants finds sufficient answer in their condensed abstract of the evidence wherein in referring to certain documentary evidence introduced by the respondent they state, “said records tend to prove that the plaintiff is a city of the fourth class,” etc.

III. It is further contended that the court erred in excluding evidence offered by defendants to prove that the land was not being condemned for a public use. Appellants’ offer to prove does not se^ w^-ia^ the testimony would be if the witnesses were permitted to testify on this point and we are therefore unable to say whether the evidence which appellants desired to offer was admissible, or whether, if admissible, its materiality was such as that its exclusion would work a reversal of the case. An offer to prove should be specific and definite. [Copper & Iron Mfg. Co. v. Manufacturers’ Ry. Co., 230 Mo. 59, l. c. 77.] But since the case must be remanded for a new trial for reasons hereinafter stated, we will say that any competent evidence which would tend to show that the land was being condemned for a private purpose should, when offered, be admitted by the court. This proposition was thoroughly discussed in the case of Kansas City v. Hyde, 196 Mo. 498, and needs no further discussion at this time.

IV. Appellants contend that upon appeal from the mayor’s jury they were entitled to a trial de novo before a jury in the circuit court. We agree with appellants’ contention in this regard. The statute which was in effect at the time this proceeding was first instituted and at the time the appeal was taken from the decision of the jury of freeholders to the circuit court, section 9415, Revised Statutes 1909, provided for appeal as follows: “Appeals may be taken from the decision of the jury of freeholders in the same time and manner and to the same court as from judgments of justices of the peace. And wbcn an appeal shall be perfected, it shall operate as a stay of further proceedings until finally determined.” The statute is silent with reference to what shall be done with the case after it reaches the circuit court. There is clearly no provision in the statute which would give the trial court the authority to remand the case back to the mayor for a retrial before another jury of freeholders, as was attempted to be done in the present case. The statute giving the right to take an appeal from the mayor’s tribunal to the circuit court but in no manner limiting’ or specifying the manner in which the circuit court should try or review the case, the fair and reasonable implication is that there should be a trial de novo in the circuit court in conformity with the general law applicable to trials in that court. [24 Cyc. 721-2; Vroman v. Dewey, 22 Wis. 323.]

It therefore follows that the judgment must be reversed and the cause remanded for a trial de novo in the circuit court. It is so ordered.

Roy, C., concurs.

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


author: ROY, C.

text:
    SALLIE W. YOUNG, Administratrix, Appellant, v. STECHER COOPERAGE WORKS.
    Division Two,
    June 23, 1914.
    AGENCY: Sale of Real Estate: Commission. An agent whose contract provides that, in order to earn his commission, he must within twenty days secure a purchaser for certain lands at ten dollars an acre, is not entitled to commission even though within the contract time he found a person willing, able and ready to take a part of the land at a reduced price and that fact was communicated to the owner, and even though the owner, after the expiration of the contract time, closed with the purchaser on such reduced terms.

      Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    Aeeiemed.

      Wilfley, Wilfley, McIntyre & Nardin and N. 8. Brown for appellant.
    (1) An agent for the sale of land is entitled to his commission even though the sale is made by the owners on other terms than those stated in the contract of agency. Stinde v. Blesch, 42 Mo. App>. 578; Grether v. McCormick, 79 Mo. App. 325; Crone v. Trust Co., 85 Mo. App. 607; Yeatch v. Norman, 95 Mo. App. 500; Wright & Orison v. Brown, 68 Mo. App. 582; Wetzel v. Wagoner, 41 Mo. App. 509; Glade v. Mining Co., 129 Mo. App. 443; Hovey & Brown v. Aaron, 133 Mo. App. 582. (2) An agent is entitled to commissions even though the final negotiations are carried on by the owner, without the agent’s knowledge, if the attention of the purchaser was called to -the property and negotiations started by the agent. Wright & Orison v. Brown, 68 Mo. App. 577; Goffe v. Gibson, 18 Mo. App. 1; Tyler v. Parr, 52 Mo. App. 249; Gelatt v. Ridge, 117 Mo. App. 560; Sallee v. McMurray, 113 Mo. App'. 264; Lane v. Cunningham, 153 S. W. 525. (3) When the contract of agency is for a definite time, if the agent start negotiations within that time with one who after-wards purchases, the agent is entitled to his commission. Goffe v. Gibson, 18 Mo. App. 1; Jaeger v. Glover, 89 Minn. 490; Griswold v. Pierce, 86 111. App. 406; Cole v. Cramp, 156 S'. W. 769; Weisels-Gerhart R. E. Co’, v. Epstein, 157 Mo. App. 101; Dodge v. Childers, 167 Mo. App. 455; Gwinnup v. Sibert, 106 Mo. App. 712; Nichols v. Whitacre, 112 Mo. App. 694. (4) Where the sale, within the time limited, is prevented by the principal, and after the expiration of the time, a sale is made by the principal to the purchaser offered by the agent, the agent is entitled to his commission. Zeimer v. Antiseff, 75 Cal. 509; Fulz v. Weimer, 34 Kan. 576; Brown v. Mason, 21 L. R. A. (N. S.) 328. (5) That the purchasers in the case at bar were ready, able and willing to buy, is conculsively shown by the fact that they did subsequently buy the property. Weisels-Gerhart R. E. Co. v. Epstein, 157 Mo. App. 107; Sidebotham v. Spengler, 154 Mo. App. 16; Glade v. Mining Co., 129 Mo. App. 455. (6) The agent is entitled to his commission if he opens negotiations with a party who afterwards buys, and is the procuring cause of the sale, even though the name of the prospective purchaser was never communicated to the owner by the agent. Hovey & Brown v. Aaron, 133 Mo. App. 583; McCormack v. Henderson, 100 Mo. App. 647:. Tyler v. Parr, 52 Mo. 250; Millan & Abbott v. Porter, 31 Mo. App. 563; Lane v. Cunningham, 153 S. W. 527.

      Rassieur, Kamme^er & Rassieur for respondent.
    (1) A broker who fails, within the time limited in the contract, to produce to the owner a purchaser able and willing to purchase upon the terms specified therein, is not entitled to a commission. Mechem, Agency, sec. 965; LaForce v. University, 106 Mo. App: 523; Brown v. Mason, 155 Cal. 155; Beauchamp v. Higgins, 20 Mo. App. 517; Page v. Griffin, 71 Mo. App. 529. (2) And this is so, even though the owner, after the expiration of the contract, makes a sale to a person with whom the broker had negotiated within the time limited, unless the delay in maldng the sale was caused by the fraud or misconduct of the owner. Loxley v. Studebacker, 75 N. J. L. 599; Sibald v. Iron Co., 83 N. Y. 383; Zeimer v. Antisell, 75 Cal. 509; Fulz v. Weimer, 34 Kan. 580; Johnson v. Yirginia-Carolina Lbr. Co., 163 Fed. 249. (3) And under the contract in this- case, the broker was required to effect a consummated sale within the time limited. Donovan v. Weed, 182 N. Y. 43; Morris v. Jackson, 9 Ga. App. 848; Phinzy v. Bush, 129 Ga. 486; Naylor v. Ashton, 130 Pa. St. 181.
   ROY, C.

Action by real estate broker for commission on sale of land. There was a verdict for plaintiff, which, on motion of defendant, was set aside and a new trial ordered. Prom that order setting aside the verdict and granting á new trial plaintiff has appealed.

The contract of agency is as follows:

"St. Lonis, May 21,1906.
“Memorandum of Agreement, May 21, 1906-. Entered into this 21st day of May, 1906, by and between the Steeher Cooperage Works, parties of the first part, and Chas. E. Young, party of the second part.
“Witnesseth, that whereas the parties of the first part are owners of a tract 22,165.20 acres of land located in White county, Arkansas, in Towns 6, 7 and 8 north, Ranges 3, 4, 5, 6 and 7 west.
“Whereas, the parties of the first part are desirous of selling this tract and have this day appointed Mr. Chas. E. Young, the party of the second part, their exclusive agent for selling this said land af $11 an acre.
“Now, therefore, the parties of the first part agree to give to the said Chas. ,E. Young, the party of the second part, a commission of 5 per cent, providing the party of the second part secures a purchaser for the land in 20 days; unless that in this time he has a purchaser, said agreement is void and has no effect.
“Whereas, thereof, the aforesaid parties set their hands, all in the date above mentioned.
“Chas. E. Young,
“Stecher. Cooperage Works,
“Aug. Giseke, Y.-Prest.”

The following so-called option on a part of the land mentioned in the former contract was given by the defendant:

“St. Louis, Mo., June 30, 1906.
“I, Rudolph Stecher, have this day given the Stoneman-Zearing Lumber Company, of St. Lotus, Mo., a sixty day option on fifteen thousand aeres of stump-age on my land in White county, Ark. In consideration thereof the Stoneman-Zearing Lumber Co. has paid me five hundred dollars. In case there is no trade the said five hundred dollars is to revert to me; otherwise it is to apply on the purchase price of the above-mentioned stumpage.
“Rudolph Stecher,
“Stoneman-Zearing Lbr. Co.”

About September 10, 1906, pursuant to that option, the defendant conveyed to the Stoneman-Zearing Lumber Company 15,323.80 acres of the land at ten dollars an acre. The evidence is somewhat lengthy, including a number of letters in a correspondence between the defendant and one S. E. Austin of Judsonia, Arkansas. That correspondence shows that in June, 1905, the defendant was attempting to sell this land through said Austin. Austin testified that immediately after May 21, 1906, he arranged with Young to act for Young-in the sale of the land, and that about June first he opened negotiations with the Stoneman-Zearing people, who offered ten dollars an acre for that part of the land which they subsequently bought. He further testified that he communicated such fact to the defendant, stating to it that he was acting for Young, and that the defendant by telephone prior to June 10 declined the offer.

The testimony for the defendant denied ever having received any statement from Austin that he was negotiating with Stoneman-Zearing- for the sale of the land, or that Austin was acting for Young. After the institution of the suit, Young died, and the suit was revived in the name of his administratrix.

Defendant’s evidence was to the effect that it had no knowledge of any negotiations with Stoneman-Zearing until after the 10th of June, 1906.

At the close of all the evidence, defendant asked an instruction in the nature of a demurrer to the evidence, which was refused.

The contract between Young and the defendant, taken in connection with the fact that Young did not within the contract time of twenty days “secure a purchaser” willing to take the land at the price named, leaves the plain-without any cause of action. Under that contract, had Young within the twenty days introduced to defendant a person able, ready and willing to buy at the price, defendant would have been liable for the commissions whether he ever closed the deal or not. That was his contract. By that contract, the failure of Young to secure such purchaser in the allotted time, left the defendant free to sell to any one for such price as suited it. The fact that Young within the contract time found a person or persons willing, able and ready to take a part .of the land at a reduced price, even though that fact was communicated to the defendant, and even though the defendant, after the expiration of the contract time, closed with the purchaser on such reduced terms,. does not avail the plaintiff. Judge Philips, in Beauchamp v. Higgins, 20 Mo. App. 514, said: “We find no authority for the proposition that the agent can demand his commission on a sale not accomplished by him within the time limited by his contract; and especially so where, as the evidence tended to show in this case, the sale was brought about after the expiration of the time limited, through the interposition of a third party, and with new incidents. I should be loth to follow such precedents, if found, as the courts ought not to make contracts for parties. Our duty is simply to interpret and enforce them as the parties have agreed upon.” See, also, Page v. Griffin, 71 Mo. App. 524; LaForce v. Washington University, 106 Mo. App. 517.

The case of Goffe v. Gibson, 18 Mo. App. 1, was based on a contract limiting the period of the agency, bnt closing with the words, “But if I sell at a lower price or better terms than afore-mentioned, or in any wise through their influence or instrumentality, that I will pay the above commission.” We cannot read that clause into the contract relied on in this case.

The order of the trial court setting aside the verdict and granting a new trial is affirmed.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


text:
    WILLIAM H. HAGGERTY et al., Appellants, v. HARVEY I. RUTH et al.
    Division Two,
    June 23, 1914.
    APPEAL: Motion for New Trial: Not Preserved. The motion for a new trial must either be copied into the bill of exceptions or the bill must contain a direction to the clerk to copy it; and unless the one or the other is done, no exception can be considered on appeal, although the abstract contains a copy of the motion.
    Appeal from Butler Circuit Court. — Hon. J. G. Sheppard, Judge.
    Affirmed. '

      E. R. Lentz and Warren D. Isenburg for appellant.

      Louis F. Dinning for respondent.
   BROWN, J.

Action to determine and quiet title to real estate, and for partition. Prom a decree for defendant Ruth plaintiffs appeal.

Defendant Ruth, challenges the right of this court to review the alleged errors noted in plaintiffs’ bill of exceptions, on the .ground that said bill of exceptions does not contain plaintiffs’ motion for new trial, nor any call for said motion.

The plaintiffs have copied into their printed abstract of the record (short form) what purports to be a motion for new trial, but defendant disputes the accuracy of that abstract and files an additional printed abstract, by which it is made to appear that the appellants ’ motion for new trial was not copied into the bill of exceptions, and no call or direction made in said bill for the clerk to copy the motion for new trial.

From respondents’ additional abstract it appears that the only entries in the bill of exceptions relating to the motion for new trial are as follows:

“Thereafter on the 5th day of 'July, 1911, and within four days after the rendition of the judgment herein the plaintiffs filed their motion for a new trial herein.
“On the same day the said motion for a new trial, was by the court taken up and considered, and overruled.
“To which action of the court in overruling said motion for a new trial the plaintiffs by their attorneys then and there objected and excepted.”

Section 2083, Revised Statutes 1909, provides that it shall not be necessary to copy a motion or other printed or written document into a bill of exceptions in order to secure a review thereof by the appellate courts, “provided, the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into tire record sent up to the appellate court.” Under this statute, when a bill of exceptions does not contain a full copy of the motion for new trial, it has quite uniformly been held to be necessary for such bill to contain a call or direction to the clerk to copy such motion. [State v. Griffin, 98 Mo. 672; State v. Handley, 144 Mo. 118; Simcoe Realty Co. v. Brewing Co., 247 Mo. 29; Blanchard v. Dorman, 236 Mo. 416, l. c. 439, and cases cited in saic last-named decision.]

Appellants do not dispute the accuracy of respondents ’ additional abstract; in fact, in his argument ore tenus in this court appellants’ attorney admitted that said additional abstract is correct, so that there seems to exist no necessity for ns to make an order on the clerk to send up the original bill of exceptions for the purpose of ascertaining which printed abstract of record is correct.

By the statute and decisions hereinbefore cited, we are barred from considering any mere matter of exception in this case, and however much we regret to dispose of the cause without considering its merits, we cannot shut our eyes to the fact that appellate procedure is governed by a statute, and a substantial compliance with the terms of that statute is necessary to confer jurisdiction on us.

Upon examination of the record proper we find that the judgment is in due form and fully supported by the pleadings. It will therefore be affirmed. It is so ordered.

Walker, P. J., and Faris, J., concur.