author: (GANTT, P. J.

text:
    W. W. NORMAN, Appellant, v. GEORGE W. EASTBURN et al.
    Division Two,
    July 19, 1910.
    1. GARNISHMENT: Taxing Costs Against Plaintiff: In Execution. Tbe circuit court bas power to render judgment, for costs and as an indemnity for time and expense, against tbe plaintiff in favor of tbe garnishees summoned on execution in a garnishment proceeding, where tbe execution plaintiff failed to deny tbe answer of tbe garnishees and they were discharged, and to order execution to be issued therefor in their behalf. Tbe fact that tbe statute in 1846 said “if any plaintiff in attachment, or in execution, shall cause any person to be summoned as garnishee,” etc., and this statute was amended in 1855 by omitting tbe words “or in execution,” does not render void a judgment for costs and expenses in favor of a garnishee summoned in execution.
    2. -: Judgment: Collateral Attack. Tbe circuit court bas jurisdiction to determine whether a judgment for costs, time and expenses shall be rendered in favor of a garnishee who, having been summoned by plaintiff on execution, answers, and his answer is not denied; and if it also had jurisdiction of the parties, its judgment cannot be attacked collaterally, for it was not void, but at most only an erroneous judgment.
    3. EXECUTION SALE: Notice to Non-Resident: Attorney-in-Fact. Under section 43, p. 645, G. S. 1865, providing that “when real estate situated in a different county from that in which the defendant in the execution owning such real estate resides, is sought to be sold, under execution,” notice in writing shall be served on the defendant in the execution, “if residing in this State, stating the fact of the issuing of the execution,” etc., no notice was reguired to be served on a defendant who resided in another State, nor upon his attorney-in-fact residing in another county of this State than the one in which the lands lay. The statute provided for no notice to an agent or attorney-in-fact in any event, and it provided for a personal notice to the owner or defendant in execution only when he was a resident of some county in this State other than that in which the lands levied on were situated. And a deed made by the sheriff, at execution sale, after proper advertisetaent, is not void simply because written notice was not served on the non-resident defendant or his agent, whether or not either had any actual knowledge of the judgment or execution or sale.
    4. --: Selling in Lump. A sale under execution of lands in lump (in this case of 880 acres) is not void; but a failure to subdivide the lands and sell them in legal subdivisions was only an irregularity, which cannot be attacked collaterally, but only in the court under whose process the sale was made, and then only by the defendant in the execution.
    Appeal from Stoddard Circuit Court. — Eon. J. L. Fort, Judge.
    Affirmed (as modified).

      James F. Green■ and Ernest A. Green for appellant; W. E.-Miller of counsel.
    (1) The judgments on which were made the execution sales under which defendants claim, are void, inasmuch as the court rendering’ them had no authority in law for the rendition of a judgment for an allowance to a garnishee in that kind of proceeding. Mfg. Co. v. Milling Co., 79 Mo. App. 158; Gh S. 1865; chap. 142, secs. 20-23, p. 575; R. S. 1809, sec. 3454; R. S. 1845, secs. 35, 36, p. 141; R. S. 1855, secs. 72-74, p. 2591; Stewart v. Anderson, 19' Mo. 479; O’Reilly v. Cleary, 8 Mo. App. 192; Simmons v. Railroad, 19' Mo. App. 546; Hoover v. Railroad, 115 Mo. 83. (2) The execution sales were furthermore void because the lands sold were situated in a different county from that wherein the execution debtor, Paxson, and his attorney in fact, resided, and no notice thereof was given to said execution debtor or to his attorney in fact. G. S. 1865, sec. 43, p. 645; R. S. 1899, see. 3199; Harness v. Cravens, 126 Mo. 259; Welch v. Mann, 193 Mo. 304; Plaster v. Grabeel, 160’ Mo. 669; Young v. Schofield, 132 Mo. 650; Walter v. Scofield, U67 Mo. 537. (3) The sales were void for the additional reason that the lands were sold, not in the legal subdivisions, but in a lump. G. S. 1865, secs. 30 and '54, pp. 644 and 646; R. S. 1899', secs. 3185 and 3210; Smith v. Cooperage Co., 100 Mo. App. 153; Yeaman v. Lepp-, 167 Mo. 61; Corrigan v. Schmidt, 126 Mo. 304; Gordon v. O’Neil, 96 Mo. 350; French v. Edwards, 13 Wall.'506; Roser v. Trust Co., 118 Ga. 181; Williamson v. White, 28 S. E. (Ga.) 846; State ex rel. v. Elliott, 114 Mo. App-. 562; State ex ,rel. v. Richardson, 21 Mo. 420; Martin v. Barber, 140 U. S. 634. (4) The proceedings in the circuit court of St. Louis, upon the motion to set aside the sale of the lands in controversy, are not res adjudicata between this plaintiff and these defendants. Clowser v. Noland, 72 Mo. App. 217; Dillinger v. Kelley, 84 Mo. 561; Springfield v. Plummer, 89 Mo. App. 515; Sherer v. Akers, 74 Mo. App. 217; State to use v. Bierwirth, 47 Mo. App. 551; Force v. Van Patton, 149 Mo. 446; American Wine Co. v. Scholer, 85 Mo. 496; Brennan v. Moule, 108 Mo. App. 336; Hathaway v. Railroad, 94 Mo. .App. 343. (5) The court erred in decreeing that the defendants were the owners of the east half of the southwest quarter of 'section 24, > township 25,-range 12 east, in Stoddard county, they having disclaimed any right, title or interest therein. Railroad v. Iron Works, 117 Mo. App. 153; Graton v. Land Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 698.

      Russell & Beal and Ralph Wammach for respondents.
    • (1) (a) The circuit court of St. Louis county had jurisdiction of the parties and of the subject-matter in the cases of John L. Paxson, plaintiff, against Henry Bauer and Henry Schaefer, garnishees of the Pacific Mutual Insurance Company, defendant, and the judgments rendered in those cases were valid and binding. They were not void judgments, even though the court may have misconstrued the law in making the allowances to the garnishees. Chouteau v. Gibson, 76 Mo. 38; Murphy v. DeErance, 101 Mo. 159; Driving Park v. Kansas City, 174 Mo. 442; Brennan v. Maulé, 108 Mo. App. 3391. (b) All the issues which might have been raised and litigated by Paxson in his motion filed to set aside the execution sale are as completely barred by the judgment of the circuit court overruling that motion as if they had been directly adjudicated and included in the verdict. Donnell v. Wright, 147 Mo. 647; Hamilton v. McClain, 169 Mo. 51; State ex rel. v. St. Louis, 145 Mo. 551; Lyman v. Harvester Co., 68 Mo. App. 637. (c) Paxson having failed to deny or except to the answers of the garnishees, they were entitled to a judgment for costs the same as if they had been defendants in an ordinary case wherein Paxson was plaintiff.' G. S. 1865, secs. 19 and 23, p. 575. (d) After the judgments had been rendered, it was the duty of the clerk to issue executions “forthwith,” unless otherwise directed by the party in whose favor the costs were awarded. And when issued and placed in the hands of the sheriff of Stoddard county he was authorized to levy upon and sell the real estate of Paxson to satisfy them. G. S. 1865, sec. 31, p. 691; Bank v. Wharters, 52 Mo. 34; Baird v. Given, 170 Mo. 302; State ex rel. v. Ashbrook, 40 Mo. App. 64. (e) The executions were made returnable to the October term, 1871, which was the first term of the St. Louis County Circuit Court after the executions were issued on May 2?, 1871. G. S. 1865, sec. 4, p. 640. (f) The motion filed by Paxson at the return term of the execution, to set aside the sale on account of the failure of the sheriff to sell the land in legal subdivisions and on account of the failure of the execution plaintiffs to notify Paxson of the issuing of the same, was made at the proper term. Nelson v. Brown, 23 Mo. 13; Mellier v. Bartlett, 89 Mo. 134. (2) Under the garnishment law in force at the time, the St. Louis County Circuit Court had authority to “render judgment in favor of such garnishee, against the plaintiff for a sum sufficient to indemnify him for his time and expenses,” and had'authority to adjudge the costs as in ordinary cases between plaintiff and defendant. G. S. 1865, secs. 1 and 2, p. 573, and secs. 22 and 23, p. 575; O’Reilly v. Cleary, 8 Mo. App. 192. (3) (a) According to his own testimony, Paxson was a non-resident of the State when the executions were issued and when the sale took place. Before he became a non-resident, he resided in Stoddard county, • where the land sold under the execution is situated. Under such circumstances he was not entitled to notice. G. S. 1865', sec. 43, p. 645. (b) Had he been entitled to notice, the failure to give it was a mere irregularity which did not render the sale void. Young v. Schofield, 132 Mo. 668; Draper v. Bryson, 17 Mo., 71; Curd v. Lackland, 49 Mo. 451; Harness v. Cravens, 126 Mo. 260. (4) Selling the real estate in a “lump” did not render the sale void, and such question cannot be reached in this collateral proceeding. Hays v. Perkins, 109 Mo. 108; Lewis v. Whitten, 112 Mo. 328; Bouldin v. Ewart, 63 Mo. 336; Abies v. Webb, 186 Mo. 233; Hubbard v. Glass Works, 188 Mb. 18; Rector v. Hart, 8 Mo. 448; Fine v. Public Schools,' 30 Mo. 166; Kelley v. Hart, 61 Mo. 468. (5) (a) The validity of the sale of the lands in controversy was litigated in the circuit court of St. Louis county on a motion filed by Paxson in which he assigned the same reasons now assigned by appellant. Therefore, the question of the validity of the sale itself is res adjudicata. Chouteau v. Gibson, 76 Mo. 38; Johnson v. Latta, 84 Mo. 139 ; Murphy v. DeFrance, 101 Mo. 151; Young v. Bird, 124 Mo. 590. (b) The judgment of the St. Louis County Circuit Court upholding the sale of the lands in controversy, if binding on Paxson, is also binding on appellant Norman, who at best is only grantee by quitclaim deed and against his will. Foote v. Clark, 102 Mo. 394; Cooley v. Warren, 53 Mo. 166; Barton Bros, v. Martin, 60 Mo. App. 351. (e) The validity of the sheriff’s sale cannot be impeached in a collateral proceeding, such as ejectment or a suit to determine title under section 650, nor. can a judgment against a party duly notified and brought within the jurisdiction of the court be reversed or annulled in a collateral proceeding. Martin v. McClain, 49' Mo. 361; Hardin v. Lee, 51 Mo. 241; Knoll v. Woelken, 13 Mo. App. 275; Myers v. Miller, 55 Mo. App. 338.
   (GANTT, P. J.

This was an action instituted by plaintiff, W. W. Norman, against George W. Eastburn, George F. Taylor, Mercer D. Wilson and Joseph T. Wilson, under section 650; Revised Statutes 1899, to quiet title to certain real estate in Stoddard county.

Plaintiff alleged that he • was the owner in fee-simple of section 24, township 25, range 12, containing 640 acres, and the north half of section 23, township 25, range 12, containing 320 acres, in all 960 acres; that the defendants claimed some interest in said lands, the character and nature of which was to petitioner unknown, but the same is adverse to the title of plaintiff; that George W. Eastburn and George F. Taylor were non-residents of Missouri, so that the ordinary process of law could not he served upon them, and prayed an order of publication notifying them of the commencement of this suit. Plaintiff further stated that the land herein described is timbered land and not in the actual possession of any one and that he did not know whether the interest of the various defendants were joint or several. He prayed that the court would hear the testimony and decree the title, estate and interest of the parties severally in and to the same.

At the return term George W. Easthurn and George F. Taylor filed their separate answer denying generally each and every allegation in the petition, hut later George W. Easthurn filed his separate answer to the plaintiff’s petition, and to any pleading, which might be filed by the defendants Mercer D. Wilson and Joseph T. Wilson, in which he. denied that the plaintiff, W. W. Norman, and the said defendants, Wilson, were the owners of or had any right, title or interest in the north half of section 23 and all of section 24 except the east half of the southwest quarter of section 24, all in said township 25, range 12,- that defendant Easthurn not only claimed' to own, hut in fact did own, and had a good fee-simple title to, all the lands in plaintiff’s petition described, except the east half of the southwest quarter of said section 24, in which last mentioned piece defendant Easthurn. disci aimed any right, title or interest, and alleged that he had no knowledge or information to form a belief as to who was the true owner thereof. For further answer the defendant Easthurn says that on the 10th day of January, 1870, the circuit court of St. Louis county, Missouri, a court of general jurisdiction, having jurisdiction of the parties and subject-matter in a suit therein pending, wherein John L. Paxson was plaintiff, and Henry Bauer and H. J. Schaefer were garnishees of the Pacific Mutual Insurance Company, defendant, rendered a judgment in favor of said garnishees against said John L. Paxson for the sum of fifteen dollars and costs, upon which judgment execution was ordered issued. That on the 25th day of May, 1871, the circuit court of St. Louis county, Missouri, a court of general jurisdiction, having jurisdiction of the parties and suhject-matter in a suit therein pending, wherein John L. Paxson was plaintiff and Henry Bauer was garnishee of the Pacific Mhitual Insurance Company, defendant, rendered a judgment in favor of Henry Bauer against John Paxson for fifteen dollars and costs, upon which judgment execution was ordered issued forthwith upon the motion of the garnishee, that on the 27th day of May, 1871, the clerk of the circuit, court of said St. Louis county issued executions numbered 299 and 300' respectively upon the aforesaid judgments, and directed them to the sheriff of Stoddard county, Missouri. That on the 30th day of May, 1871, said sheriff of Stoddard county, Missouri, by virtue of the authority vested in him by said execution so issued as aforesaid, levied upon and seized the real estate now in controversy as the property of John L. Paxson, and after having given at least twenty days ’ notice of the real estate to be sold and of the time, place and terms of sale of each, published in the Southeast Reporter, a newspaper published in the town of Bloomfield in said county of Stoddard, did on the first day of August, 1871, during the May adjourned term of the circuit court of the said county of Stoddard and while said court was in session, between tbe hours of ten o’clock a. m. and five o’clock p. m. of said day at the court house door in tbe town of Bloomfield in the said county of Stoddard-, expose to public sale to the highest bidder for cash in hand, the real estate in controversy, and at said sale George W. Kitchen and George G. Pollard became the purchasers of the real estate in controversy, they being the highest and best bidders for said real estate, and thereupon said sheriff executed to said purchasers deeds in due form of law conveying to them all the right, title and interest of the said John L. Paxson in and to the real estate herein described, and said sheriff made return on said execution accordingly to the October term, 1871, of the circuit court of St. Louis county, to which term they were returnable. That on the 20th day of October, 1871, during the October term, 1871, of the circuit court of said St. Louis county, the said John L. Paxson, through his attorneys, H. H. Bedford and George W. Hall, filed a motion to set aside the sales made by the sheriff of Stoddard county under said executions, and caused notice thereof to be served on the said George W. Kitchen and George G. Pollard. That on December 22, 1871, the said John L. Paxson and the said George W. Kitchen and George G. Pollard filed a stipulation in the said circuit court of St. Louis county that ex parte affidavits might be taken and used in the trial of said motion as fully as if the same facts appeared in deposition. That on Thursday, the second day of May, 1872, it being the April term, 1872, of said circuit court, depositions in said motion were opened and filed, and on the 10th day of May, 1873, it being the April term, 1873, of said circuit court, affidavits and counter affidavits were filed in said cause. That on the 19th day of May, 187'3, it being the April term, 1873, of said circuit court of St. Louis county, the said circuit court after having heard and fully considered the motion to set aside the sheriff’s sale made under and by virtue of said execution, overruled the same, and on May 28, 1873, it being the April „term, 1873, of said circuit court, the motion for a rehearing pending in said cause was by the court denied. That on Monday, November 10, 1873, it being the October term, 1873, of the circuit court of St. Louis county, the said court, after having heard and fully considered the motion for a rehearing in said cause, overruled the same. Defendant further says that by reason of the premises aforesaid the validity of the sheriff’s sale of the land in controversy under execution number 300 was fully adjudicated by the said circuit court of St. Louis county, in a direct proceeding instituted by John L. Paxson against the purchasers of the land in controversy at said sheriff’s sale, in the court having jurisdiction of the parties and the subject-matter, and said defendant now pleads the acts of said parties and the proceedings of said court in bar of plaintiff’s right to recover and in bar of any plea which may be set up and made by defendants Joseph T. Wilson and Mercer D. Wilson.

Further answering, defendant Eastburn says that the plaintiff, Norman, claims title to said real estate in controversy by virtue of a quitclaim deed executed on the — day of ——, 1904, by John S. Mellon, who claimed to be the attorney .in fact for John L. Paxson, and that defendants Joseph T. Wilson and Mercer D. Wilson claimed title by virtue of a quitclaim deed executed by H. H. Bedford on the — day of--, 1905, and that said Bedford claims title to said land by virtue of a quitclaim deed from John L. Paxson executed subsequent to the date of the deed from John S. Mellon to plaintiff Norman, and the said Norman and Wilson took said conveyances with full knowledge of defendant’s claim and with full knowledge that said real estate had been claimed by persons who had acquired title through and by virtue of the sheriff’s sale of said real estate made under execution number 300 and more than thirty years after the said circuit court of said St. Louis county had heard and overruled the motion filed by John L. Paxson to set aside the sale of said real estate made by'the sheriff of Stoddard county under execution number 300’; that by reason of the premises aforesaid, the said plaintiff and the said Joseph T, Wilson and Mercer D. Wilson are and should be estopped from calling in question the validity of said sheriff’s sale. Defendant further answering says that plaintiff’s cause of action accrued more than five years prior to the date of the institution of this suit. Wherefore defendant Eastburn prayed the court to declare that he was the owner in’fee-simple of said real estate, and that the plaintiff Norman and defendant Wilson had no legal or equitable title therein, and for general relief.

Defendant Mercer D. Wilson filed a separate answer, but as the finding was in behalf of the defendants Eastburn and Taylor and defendant Mercer Wilson has not perfected his appeal, it is unnecessary to take further account of his answer. The case was tried and resulted in a decree in favor of the defendants George W. Eastburn and George F. Taylor; that they were the owners in fee-simple of all the lands described in the petition, and that the plaintiff and the defendants Wilson had no right, title or interest therein.

The evidence on the part of the plaintiff consisted, first, of a power of attorney from John L. Paxson to John S. Mellon covering the-land in controversy and recorded in the deed records of Stoddard county, Missouri. This power of attorney was dated April 18, 1870. Second, a deed conveying the land in controversy from John L. Paxson, by John S. Mellon, attorney in fact, to W. W. Norman, the plaintiff in this case, of date January 11, 1902, and reciting a consideration of one dollar, and conveying altogether 4400 acres of land in Stoddard county, including the land in this suit. It was admitted by all parties to the suit that John L. Paxson was the common source of the title; that the lands in controversy were wild and uncultivated. With this evidence plaintiff rested:

On the part of the defendant Eastburn the following evidence was introduced: First, a deed executed by Robert M. Fraker, sheriff of Stoddard county, Missouri, to John G. Pollard, dated August 1, 1871, recorded August 7, 1871, in book M, page 32, of the deed record of Stoddard county, and conveying the north half of section 23, township 25', range 12; second, a deed by Eobert Fraker, sheriff of Stoddard county, to' George W. Kitchen, dated August 1, 1871, and recorded August 2, 1871, conveying to said Kitchen the east half of section 24 and the northwest quarter and the east half of the southeast quarter of section 24, township 25, range 12. It was admitted that the defendant George W. Eastburn had by mesne conveyance acquired all the title that passed through the deeds executed by Eobert Fraker, sheriff of Stoddard county, to George P. Pollard and George M. Kitchen, dated August 1, 1871, conveying the lands in controversy. The plaintiff objected to the foregoing sheriff’s deeds for the reason that the judgments on which the execution were based were void, and for the reason that the court rendering the said judgments had no authority in law to render the same. This objection was overruled and the plaintiff duly excepted. It also appeared that on the 13th of March, 1869', at the February term, 1869, of the St. Louis County Circuit Court, John L. Paxson recovered a judgment against the Pacific Mutual Insurance Company for $4162; upon this judgment executions were issued and a number of persons were summoned as garnishees, among whom were Henry Bauer individually, and Henry feauer and H. J. Schaefer jointly. On the 10th of January, 1870, Paxson, the execution plaintiff, having failed to deny the answer of the garnishees, Bauer and Schaefer, the circuit court discharged them as garnishees, with an allowance of fifteen dollars to each at the cost of plaintiff, and directed that an execution issue therefor. On the 25th of May, 1871, Paxson, the execution plaintiff, having failed to deny the answer of Henry Bauer, garnishee, the court made an order discharging him and allowing him fifteen dollars for answering, and on motion of the garnishee directed that an execution issue forthwith. These allowances to the garnishees were taxed by the clerk as costs in the garnishment proceedings against the plaintiff Paxson, and on the 27th of May, 1871, the clerk of the circuit court issued1 two executions to the sheriff of Stoddard county, returnable to the October term, 1871, of the St. Louis County Circuit Court. These executions were received by the sheriff, and on the 30th of May, 1871, by virtue of the same he levied upon and seized the real estate in controversy, advertised it as the law directed, and! sold it to the highest bidder for. cash at the court house door in Bloomfield, on the first day of August, 1871, during the sitting of the circuit court. Deeds were executed, acknowledged and delivered to the purchasers, Pollard and Kitchen, for the lands so purchased as aforesaid, and were duly filed for record. At the date the land was sold by the sheriff John L. Paxson was a resident of the State of Alabama, and had been since December, 1869. During the years 1867 and 1868 and a part of 1869 he resided in Stoddard county. Paxson did not know that the land in controversy had been sold under the execution until about the first of September, 1871, some ten days after the sale was made in August. He was notified of the sale by his agents, J. E. Merriman and Company, of which firm John S. Mellon was a member. Immediately after learning of the sale of his land Paxson went to Bloomfield and employed Mr. H. II. Bedford as his attorney to examine the sale and make investigations thereabout. Paxson testified that he knew nothing of the judgments that had been rendered against him in favor of the garnishees. He testified that he knew nothing of any suit to set aside the sale of the land under the above execution.

In rebuttal plaintiff offered in evidence a certified copy of the judgment in favor of Henry Bauer, garnishee, against John L. Paxson for the sum of fifteen dollars of date May 25, 1871, and also a certified copy of the judgment of January 10, 1870', by the circuit court of St. Louis county in favor of Bauer and Schaefer against John L. Paxson and certified copies of the executions under the above mentioned judgments.

In rebuttal the defendant Eastburn read in evidence a certified copy of a motion filed by John L. Paxson at the October term, 1871, of the circuit court of St. Louis county, to set aside the sale of the lands under the said two executions, assigning among other reasons that the real estate sought to be sold under said execution was situated in a county different from that in which said Paxson and his attorney in fact, and also his attorney at law, resided, and because the lands sold were not sold in the legal subdivisions, but in a lump. A notice of a filing of this motion was duly served on Pollard and Kitchen, the purchasers. The attorneys for Paxson and Pollard and Kitchen on the 22d of December, 1871, entered into a stipulation that affidavits might be taken and used as if they were depositions, and in pursuance of this stipulation the affidavits of George W. Kitchen, Robert M. Fraker, David Crytes and R. T. Carter were filed in the cause, as was also the deposition of the sheriff, R. M. Fraker. On Monday, May 191, 1873, this motion to set aside the sheriff’s sale was overruled by the court. A motion for rehearing was filed and continued until November 10, 1873, at which time it also was overruled. From this judgment no appeal was taken by John L. Paxson. Paxson never paid any taxes on the land after 1870, nor does he seem to have exercised any act of ownership over them. The power of attorney which Paxson gave John S. Mellon in 1870 does not appear to have ever been revoked. The defendants Mercer Wilson and Joseph Wilson defended at the trial, and claimed title by a quitclaim deed from John L. Paxson and H. 'H. Bedford and from said Bedford to Mercer and Joseph Wilson, both of which deeds were executed after the deed from Mellon, attorney in fact, to plaintiff, W. W. Norman.

This appeal involves the title to eight hundred and eighty acres of land in Stoddard county. John L. Paxson is the common source of title. Plaintiff deraigns title from Paxson under a power of attorney given by Paxson to John S. Mellon April IS, 1870', and a quitclaim deed executed by Mellon under said power of attorney to plaintiff on the 11th of January, 1902, conveying the land in suit for one dollar, which deed was recorded June 4, 1902.

. Defendants deduce title under sheriff’s deeds, dated August 1, 1871, based upon a certain judgment rendered by the circuit court of St. Louis county on May 25, 1871, against John. L. Paxson, in favor of Henry Bauer, for the sum of forty-two dollars and seventy cents for costs and allowances to said Bauer as garnishee under an execution issued upon a judgment in favor of John L. Paxson against the Pacific Mutual Insurance Company of St. Louis county.

The contest was over the validity of the judgment in favor of Bauer, the garnishee, against Paxson, the plaintiff in the execution, and the sale made of the lands in suit by the sheriff of Stoddard county under that judgment. It will be seen that the plaintiff is assailing a judgment rendered some forty years ago, and a sheriff’s sale conducted iu 1871. This is a collateral attack upon the judgment and sheriff’s sale and deed. The plaintiff therefore assails the judgment and sheriff’s sale as void and not merely erroneous. For the purpose of this case plaintiff Norman stands in the shoes of Paxson under whom he claims and with full record notice o.f defendants’ deeds and claim of title.

I. The controlling question in the case is in the contention of the plaintiff that the judgment in favor of Henry Bauer, garnishee of The Pacific Mutual Insurance Company, against J ohn L. Paxson, of date May 25, 1871, and the judgment dated January 10', 1870, in favor of Henry Bauer and H. J. Schaefer, garnishee of The Pacific Mutual Insurance Company, against John L. Paxson, both by the circuit court of St. Louis county, are void, absolutely, because the said court had no authority to render such judgments in favor of a garnishee in a garnishment on execution when the plaintiff failed to recover judgment against the said garnishee. This insistence is based upon the statute law of this State in 1871 when these judgments were rendered. The law in force at that time will be found in the General Statutes of 1865, page 575, sections 20, 21, 22 and 23 (being sections 3454, 3455> 3456 and 3457, Eevised Statutes 1899). Plaintiff bases his claim upon the change made in the Garnishment Act of 1846 and 1847 by the revision of 1855. By the Act of 1846 and 1847, it was provided: “If any plaintiff in attachment, or in an execution, shall cause any person to be summoned as garnishee, and shall fail to recover judgment against such garnishee, all the costs attending such garnishment shall be adjudged against such plaintiff; and the court or justice shall also render judgment in favor of such garnishee, against the plaintiff, for a sum sufficient to indemnify him for his time and trouble in attending and answering the interrogatories propounded to him.” In the revision of 1855', the words “or in an execution” in the above-quoted statute were omitted. .[E. S. 1855, sec. 74, p. 259'.] And inasmuch as the garnishment in the case of Paxson against the Pacific Mutual Insurance Company was upon an execution and not in an attachment, plaintiff insists that'the judgments rendered by the circuit court of St. Louis county in that garnishment proceeding in favor of the garnishee, were wholly unauthorized by statute and absolutely void. The plaintiff introduced the said judgments in evidence, from which it appeared that the garnishees answered!, and that the plaintiff Paxson therein failed to deny or take any exceptions to the answers of the garnishees, and thereupon • the court ordered that the garnishees be discharged and the said garnishment dismissed at the cost of the plaintiff, and that the garnishees be allowed the sum of fifteen dollars at the costs of the plaintiff, and that execution should issue therefor.

By section 19, chapter 142, G-eneral Statutes of 1865, it was provided: “If the answer of the garnishee be not excepted to or denied in proper time, it shall be taken to be true and sufficient.” And by section 23 of the same chapter it was further provided: “In all cases between the plaintiff and garnishee, the parties may he adjudged to pay or recover costs, as in ordinary cases between plaintiff and defendant.”

In O’Reilly v. Cleary, 8 Mo. App. l. c. 192, this question came before the St. Louis Court of Appeals, and Judge Bake well,, speaking for that court, said: “The court allowed fees to the attorney of the garnishee, and ordered that these fees be taxed as costs. The appellant contends that attorneys’ fees can be allowed in favor of the garnishee against the plaintiff only in case of attachment, and not in case of garnishment on execution. The language of the section which provides for this allowance (Wagner’s Stats. 667, sec. 22), is, ‘If any plaintiff in attachment shall cause any person to be summoned as garnishee, ’• etc. The intention of the Legislature by the use of this language was not to make a distinction between the case of garnishment on attachment and garnishment on execution, as to the allowance of attorneys’ fees and other costs and expenses of the garnishee. No reason for such distinction can be conceived. The language is used) because garnishment is a common remedy in attachment, and is less seldom resorted to in case of execution. But a second section of the same act (Wag. Stats. 664, sec. 2), provides that the proceedings against and in behalf of the garnishee, subsequent to service, shall be the same in case of execution and attachment. The allowance of attorneys’ fees, and taxing them as costs, is a proceeding in behalf of the garnishee, within the meaning of the law and the manifest intention of the Legislature.”

Section 2, chapter 142, Genferal Statutes 1865, referred to by Judge Bakewell in his decision, provides: “When a fieri facias shall be issued and placed in the hands of an officer for collection, if no sufficient property can be found in the county whereof to levy the amount due on said writ, it shall be the duty of the officer, when directed by the plaintiff, his agent or attorney, to summon garnishees, and with like effect as in case of an original attachment. ■ The service of garnishment in such case, and the subsequent proceedings against and in behalf of the garnishee, shall be the same as in the ease of garnishment under an attachment.” The decision of the Court of Appeals on this question was rendered in 18791 and we have been unable to find any decision in this State either in the courts of appeal or this court overruling or questioning the construction then put upon the Garnishment Act by that court. Section 2 of the Garnishment Act as it stood in 1865 with sections 22 and 23 thereof, we think, was given a reasonable construction by the St. Louis Court of Appeals, and we see no reason for overruling a decision which has been so long accepted and acquiesced in by the bar of the State, and accordingly in our opinion the judgments of the circuit court of St. Louis county in favor of the garnishees and under which the land in suit was sold, were not void but valid judgments. But even if we were of the opinion that the circuit court in those cases misconstrued the Garnishment Act in making .the allowances to the garnishees, we should not hold them void, because that court had jurisdiction of all the parties thereto and of the subject-matter of those eases, and its judgments, even though erroneous, are binding upon the parties thereto in a collateral proceeding like the one at bar. [Driving Park v. Kansas City, 174 Mo. l. c. 442; Chouteau v. Gibson, 76 Mo. 38; Murphy v. De Prance, 101 Mo. l. c, 159.]

II. Another ground on which the plaintiff assails the sale of the said lands is that the law was ignored, because the land which was sold was situated in a different county from that wherein the execution debtor Paxson and his attorney in fact Mellon, resided, and no notice of the sale was given either to Paxson or to said Mellon.

At the time this sale of the land was mad,e, section 43, page 645, of the General Statutes of 1865 provided: “When real estate situated in a different county from that in which the defendant in the execution owning such real estate resides, is sought to be sold under an execution in favor of the plaintiff therein, it shall be the duty of the plaintiff to cause a notice, in writing, to be served on the defendant or defendants owning the real estate, if residing in the State, stating the fact of the issuing of the same, how or to what county directed, and to what term- of the court said execution is returnable.” Now the testimony of Mr. Paxson himself, taken in this case, establishes beyond peradventure that he was a resident of the State of Alabama when the executions were issued and when the sale took place. The statute itself only required a notice of sale to be served on Paxson if he resided in this State, and as his own testimony shows that he was a non-resident of the State, it is perfectly obvious that he was not entitled to- this special notice under the statute invoked by the plaintiff. Plaintiff seems to concede that as Mr. Paxson was a non-resident of the State, he was not entitled to this special notice, but he says that Paxson had an attorney in fact in the person of Mr. Mellon, who- resided in this State and in a different county from that wherein the land was situated. There is no such qualification in the statute. It takes no account whatever of attorneys in fact, bnt requires the notice to be served upon the owner himself, if residing in the State. Moreover, it is well settled in this State, at least, that even if Paxson had-been a resident of the State, the failure to give him special notice would have been a mere irregularity, which would not have affected the validity of the sale. [Young v. Schofield, 132 Mo. 668 and cases cited.] This point likewise must be ruled against the plaintiff.

III. It is insisted that the sale was void because the officer failed to subdivide the land and sell the same in legal subdivision, bnt sold the same in a lump. As already said this is a collateral proceeding and the failure to subdivide the land was an irregularity of which the defendant in that execution alone had the light to take advantage. He did attempt by his motion in the circuit court of St. Louis county to have the sale set aside on that ground, and that court refused to set it aside, and he took no appeal or writ of error from the judgment of the circuit court. It is clear that the plaintiff in this case cannot in this collateral proceeding avoid the sale on the ground that it was sold in a lump. [Lewis v. Whitten, 112 Mo. 318; Bouldin v. Ewart, 63 Mo. 330, and cases cited; Ables v. Webb, 186 Mo. 233.]

. IY. As to the objection to the manner of the sale of the lands, that matter was all litigated in the circuit court of St. Louis county on the motion filed by John L. Paxson to set aside the sale on the ground that the land was sold in a lump and 'that he was not notified of the issuance of the execution to Stoddard county. In view of these facts, the question of the validity of the sale itself must be held to be res adjudiccita. In answer to this proposition, however, it is suggested by the learned counsel for the plaintiff that the motion filed by Paxson was inappropriate to test the validity of the sale and correct the irregularity therein, because he says the motion was filed too late. The record furnishes a complete answer to this contention. The executions were made returnable to the October term, 1871, of the St. Louis County Circuit Court, which was the first term after the executions were issued on May 27, 1871. This was strictly in accordance with the statute in force at that time. [General Statutes 1865, sec. 4, p. 640.] The motion was filed by Paxson to set aside the sale at the return term of the execution. It is too clear for discussion that Paxson’s motion to set aside the sale was made at the proper term and in the proper court. As said by Black, J., in Mellier v. Bartlett, 89 Mo. l. c. 137, “Every court has the exclusive control of its process, and no other court has a right to interfere with or control it. [Nelson v. Brown, 23 Mo. 19; Keyte v. Plemmons, 28 Mo. 104; McDonald v. Tiemann, 17 Mo. 603.] And the return term of the execution is the term at which the motion should be made. There can be no doubt of the jurisdiction of the circuit court to entertain Paxson’s motion at that term, The circuit court of Stoddard county had no control over the writ, could not quash it or enjoin its execution, but the circuit court to which the writ was returnable had full authority at the term to which it was made returnable to quash the writ or set aside the proceedings under it.

Y. Finally it is insisted that the circuit court erred in decreeing that the defendants were the owners of the east half of the southwest quarter of section 24, township 25, range 12 east. As to this assignment, the defendant Eastbum confesses error, but points to the fact that in his answer he disclaimed any interest whatever in this piece of land and consents that the decree should be corrected and amended in so far as the decree vests title in the defendant Eastburn thereto. He insists, very properly, that having disclaimed any interest in this eighty acres he should not now be made to suffer because of his unsuccessful effort to eliminate it from the case, and he makes the point that the plaintiff in his motio'n for new trial did not call the court’s attention to the fact that this eighty had been included in the decree of the court by mistake. We have no doubt whatever of the power of this court to so modify the decree as to exclude this eighty acres from the decree, under section 866, Revised Statutes 1879, and the decree is therefore affirmed in all matters save and except the finding and vesting of the title to the east half of the southwest quarter of section 24, township 25 of range 12, which by evident inadvertence was included in the decree in favor of the defendant Eastburn.

The decree of the circuit court of Stoddard county is affirmed as modified.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    JOHN W. NOBLE, Appellant, v. JOHN M. CATES and HENRY L. CORNET, Trustees.
    Division Two,
    July 19, 1910.
    1. QUIETING TITLE: Pleading Fee Simple: Necessary Proof. It is unnecessary for defendants, in the suit to ascertain and determine the title under Sec. 650, R. S. 1899, to plead a fee simple title in themselves; under that section they can show, as a defense, any title, legal or equitable, vested in themselves, without expressly setting it forth in their answer. But having alleged a fee simple title in themselves, they restricted their defense to an establishment of that title; and if their evidence fails to establish an unbroken chain of title from the Government to themselves (there being no common source of title and no claim of title by limitation), the judgment adjudging them to be “seized of an indefeasible estate in fee simple” cannot stand.
    2. -: -: Description: Indefinite: Competent Evidence. A concession of 1600 arpens of lánd made on October 18th, 1800, by the Lieutenant Governor of Upper Louisiana, “to be taken between Darnesnes River and the swamp called ‘A Bequet’ four or five miles northwest of the village of Portage Des Sious,” is a very vague and indefinite description; and a deed containing such a description, though it does not describe the south half of the southwest quarter of section 4, township 26, range 7 east, in Wayne county, if otherwise unobjectionable, might be competent as tending to show that the grantor obtained a concession from the Governor of Upper Louisiana, in connection with the act of Congress of a later date confirming said concession and authorizing said grantor, or his legal representatives, to locate other land in Wayne county if the title to the concession failed.
    3. -: -: Translation of Deed: Not Sworn To. A certified copy of an undated and unsworn to translation into English, attached to a deed written in French, dated October 16, 1806, duly acknowledged and recorded in the District of St. Charles in 1807, conveying “a tract of 1600 arpens of land situated in the District of Saint Charles, upon the river Darvene and the marsh called a Bequet”, the certified copies of the original in French and of the translation in English not being recorded in Wayne county Until 1904, is not admissible in evidence as tending to establish the defense of an indefeasible fee-simple title to lands in Wayne county.
    4. JUDICIAL NOTICE: Location of Lands. The court will take judicial notice that lands in Wayne county did not in 1806 lie within the territorial limits of the District of St; Charles; and also that lands in Wayne county do not lie within twenty leagues of the city of St. Louis.
    5. GRANT TO LEGAL REPRESENTATIVES: Necessary Evidence. Where a concession of 1600 arpens of lands was made by the Lieutenant Governor of Upper Louisiana in 1800 to Pepin, and in 1836 Congress confirmed said grant to Pepin, or his legal representatives, and authorized a relocation, and in 1888 the United States patented certain lands in Wayne county to said Pepin, or his legal representatives, it devolves on defendant, who claims the legal title through a deed made by Mullanphy, to show that said Mullanphy was the legal representative of Pepin, since the records of the various Government offices will' disclose who the person was that claimed to be the legal representative of Pepin, when the certificate of relocation was issued, etc. -
    Appeal from Wayne Circuit Court. — -Hoto. E. M. Dearing, Judge.
    Reversed and remanded.

      James F. Green for appellant; John W. Noble fro se.

    (1) There is no evidence, either admitted or offered, showing who. the legal representatives of Etienne Pepin are. (2) There is no will of Jere W. Clemens shown making the defendants trustees, (a) The copy offered in evidence purports to be that of a will made in California, as to lands in that State, among others. It has nothing to authenticate it, no proof of probate anywhere; nor was any proof offered at trial. As an instrument of evidence it was worthless and inadmissible. Barnard v. Bateman, 76 Mo. 414; Charlton v. Brown, 49' Mo. 353; Fenderson v. Tie & Lumber Co., 104 Mo. App. 294; Keith v. Keith, 97 Mo. 223; Lewis v. St. Louis, 69 Mo. 595'; McCormick v. Sullivant, 101 Wheat. (IT. S.) 192; Drake v. Curtis, 88 Mo. 644; Gaines v. Fender, 482 Mo. 497; Stevenson v. Hancock, 72 Mo. 615; Graven v. Allen, 1001 Mo. 293; 2 Rose’s Notes on U. S. Rep., p. 413. No one is charged with any notice of a will not probated and recorded in this State. Yan Syckel v. Beam, 110 Mo. 755; Emmons v.-Gordon, 140 Mo. 490. (b) It was a foreign will as to land in this State, and by statute it could not be recorded otherwise than by filing an authenticated copy, with probate thereof. R. S. 1889; secs. 8900-1; R. S. 1899; secs. 4631-2-3-4-5’. (c) The filing and recording of this instrument was without authority of any law, and was a void act by the recorder; and it gains no validity from expiration of time. Neither was a copy admissible under any recorder’s certificate until the absence of the original was accounted for by proof. There was no offer to account for the absence of the original. R. S. 1889; see. 2418; R. S. 1899, sec. 923; Callaway v. Fash, 50' Mo. 420 ; Hunt v. Selleck, 118 Mo. 588. (d) This copy does not show the lands in controversy to be embraced within it, as is necessary to make it admissible in a suit to try title. Gaines v. Carricker, 50 Mo. 564. (e) There is no evidence or offer to prove that Jere W. Clemens is dead. The will purports to be of recent date — 1894. (3) The court erred in admitting the instruments in the French language, and the several alleged translations thereof, (a) That purporting to be by Etienne Pepin, in the French language, is not proven as an original deed, nor competent evidence. This instrument was not filed in Wayne county until February’ 4, .1904, nor shown to be such an archive as might be admissible. R. S. 1889', secs. 4852, 4855 and 4856. It did not pertain to land in Wayne county but in St. Charles district, and there was no authority to either file or record it in Wayne county. It did not pertain to the land in question. Patterson v. Fagan, 38 Mo. 82. (b) The deed to Mullanphy did not pertain to lands in Wayne county, and neither its record there or elsewhere made it, or a copy, evidence in this suit. The land described in the deed is not shown to be the same as that described in the concession, or that mentioned in the recitals of the patent, (c) Any entry, location or patent to Pepin’s legal representatives did not decide or give notice as to who, individually, these legal representatives were or might be. The United States by this form of grant refused to decide the question as to “legal representatives.” (d) There has at no time been of record any document showing legally who these “legal representatives” were or are. It has always been a matter resting in pais, and the acts of the recorder of Wayne county in filing, recording and certifying as to these papers, are unauthorized and inadmissible against plaintiff, (e) Nor is the translation shown in any way to be correct or by a competent translator. R. S. 1889, sec. 4891. (f) The original translation was not offered, but only a certified copy from the recorder’s-office. This was not authorized to be recorded and a copy is inadmissible. R. S. 1889, secs. 2418-19-20; R. S. 1899, secs. '923-5; R. Sv 1899, secs. 3147-8; Callaway v. Fatli, 50 Mo. 420; Hunt v. Selleck, 118 Mo. 588. (g) The affidavit is not proven, and a copy of it is not proof of its being genuine. Statutes last above cited, (h) It does not fall under Sec. 3123-, R. S. 1899 (Sec. 401, 1 Wag. Stat. 278), because it is not an instrument affecting real estate, in the sense of that law; and not that in Wayne county. Gamier v. Barry, 28 Mo. 449; Muldron v. Robinson, 58 Mo. 346; Patterson v. Fagan, 38 Mo. 82. (i) There had been no claim under it for ten -consecutive years. The evidence is to the contrary, (j) That purporting to be a deed in the French language from Chouteau to Mullanphy was inadmissible for the ■same reasons and on authorities cited concerning the Etienne Pepin deed, (k) So also, as above pointed out, the translation of that to Mullanphy was inadmissible. Moreover, there is no affidavit to this translation, nor other evidence of its being true or genuine. (4) The plaintiff, and those under whom he claims, established adverse possession under color of title to the day of the trial, and plaintiff was at time of trial in sole possession of the land, (a) This case does not pertain to a common source of title to plaintiff and "defendants. The location, entry and patent were offered by plaintiff merely to show the title had passed out of the United States and so the Statute of Limitations could run. The plaintiff claims under that statute ; the defendants claim under the entry in 1857 and the patent in 1888. (b) The color of title is indisputable. There is the deed of December 29', 1874, by Allison and wife to Stroud and wife, for a consideration of $1500, duly acknowledged January 22, 1875; describing the land in suit. It is not necessary that a deed be recorded to give color of title. Ozark Co. v. Hays, 105 Mo. 150; Plaster v. Graybeel, 160 Mo. 669'. (c) The wife of Stroud died ten or fifteen years before the trial of this case, and the husband thereby became vested with the entire estate. A deed to husband and wife gives an estate by entirety that vests in the survivor of them. Gibson v. Zimmerman, 12 Mo. 385'; Hall v. Stephens, 65 Mo. 670; Modrell v. Riddle, 82 Mo. 31; Bains v. Bullock, 129 Mo. 117; Harrison v. McRevnolds, 183 Mo. 533. (d) The other undivided interest was conveyed to Stroud by Connor’s administrator, but the deed is lost. '(e) There is the deed from Stroud to plaintiff below, dated November 1, 1902, and 'acknowledged the same day, and filed of record November 5, 1902. (5) The possession and1 use of the land in controversy is proven, and this was so open, continuous, notorious, hostile, exclusive and adverse as to be sufficient to vest title in Stroud, and in his grantee, Noble, with or without any deed to him, or other color of title, (a) Supported by Secs. 6764, 6768 and 6771, R. S. 1889, and secs. 3219', 3223 and 3227, R. S. 1879, as to ten years’ adverse possession, (b) Shown by the testimony of Stroud, by deposition taken March 7, 1904, the defendants cross-examining him at length, so that this court on an appeal has every means of judging the testimony as did the trial court, (c) This witness testifies to the use and possession directly and without qualification, for more than twenty-five years, continuously'from 1874, and until he deeded to plaintiff, and that plaintiff held it in possession after that, (d) Stroud testifies that he claimed as owner, and had title both from Allison and Connor to show adverse title. Mississippi v. Vowels, 101 Mo. 228; Martin v. Bonsack, 61 Mo. 556. (e) The spring and the pond and the mill were part of one whole mill-scheme, and the spring and the pond were on the land in controversy, and claimed and used by Stroud under Allison deed and Connor deed. There was a road made on it and it was partly fenced, and Stroud cut and sold timber off of it. (6) Title by adverse possession is as good for attack or defense as any title, even one running back to the Government. Scannel v. American Co., 161 Mo. 618; Kirton v. Bull, 168 Mo. 622. This is the established law of Missouri. This possession need! not be the ten years next before the action was begun. Harper v. Morse, 114 Mo. 323. (a) Possession under color of title of a part, in name of the whole, shall be deemed possession of the whole. E. S. 1879, secs. 3219, 3223; E. S. 1889, see. 6768; E. S. 1899, sec. 4266. Any writing, although invalid and legally conveying no title, or even void, if it purports to convey title will give col.or of title. Fugate v. Pierce, 49 Mo. 441; Hickman v. Link, 97 Mo. 482; Pharis v. Bayless, 122 Mo. 116. (b) Color may be created by act in pais, without writing. Bannells v. Eannells, 52 Mo. 108; Cooper v. Ord, 60' Mo. 420; Hughes v. Israel, 73 Mo-. 547. It is not necessary to color to erect a fence or other improvement. Goltermann v. Schiermeyer, 125 Mo. 291; Draper v. Shoot, 25> Mo. 197; Mississippi County v. Yowels, 101 Mo. 229; Leeper v. Baker, 68 Mo. 400; McYey v. Carr, 159 Mo. 648; Hughes v. Israel, 73 Mo. 547. (7) The possession of plaintiff and those under whom he claims are exclusive of all others, whether Connor owned any interest or conveyed to Stroud or not. (a) The testimony of Stroud proved a conveyance from Connor. Tenants in common may hold adversely to each other. Campbell v. Gas Light Co., 84 Mo. 332; Warfield v. Lindell, 30 Mo. 272; Peek v. Lockbridge, 97 Mo. 549; Dunlap v. Griffith, 146 Mo. 283. This is, however, a question not involved in this suit; the defendants do not claim from any supposable co-tenant, and the only supposable co-tenant .(Connor) disclaims any interest. Fulkerson v. Mitchell, 82 Mo, 22.

      E. C. Slevin- for respondents.
    (1) A claim of fee-simple is futile in the abseuce of proof of a legal title. Stewart v. Land Co., 200 Mo. 290. (2) A deed has no validity save as to the parties to it, unless it has been recorded. E. S. 1899, sec. 925. (3) To constitute such adverse possession as will bar the title of a legal owner, it must be shown that such possession is hostile or adverse, actual, visible, notorious and exclusive, continuous and under a claim or color of title. 1 Am. and Eng. Ency. Law (2 Ed.), pp. 225, 228; Robinson'v. Claggett, 149 Mo. 153; Myers v. Schuchmann, 182 Mo. 1501. (4) To bar the true owner of his right to possession of land, the possession of both the occupant and those under whom he claims must be open, notorious, continuous and adverse for the period of ten consecutive years next before the beginning of the suit, under a claim of ownership. Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440'. (5) The flooding of one’s land by the adjoining proprietor’s erection of a dam is not adverse to the title or possession of the owner of the flooded lands. Angelí on Watercourses, sec. 504; Boston Co. v. Burgin, 114 Mass. 340'; 10 Am. and Eng. Ency. Law (2 Ed.), p. 531; Simpson v. Railroad, 145 Mo. 64. (6) Occasional trespass, such as cutting timber, and paying taxes, where the land is not enclosed, will not be sufficient to 'constitute adverse possession, there being no express notice to the owner by the trespasser of assertion of ownership. Herbst v. Merrifield, 133 Mo. 267; Pharis v. Jones, 122 Mo. 125; Chapman v. Templeton, 53 Mo. 463; Cashman v. Cashman, 123 Mo. 647. (7) The owner should be notified in some manner of the adverse claim. Musick v. Barney, 49 Mo. 458; Fugate v. Pierce, 49 Mo. 447; St. Louis v. Priest, 103 Mo. 652. (8) Adverse possession is a fact which must be proved, and the burden is cast upon him who relies upon it. The proof to sustain it must not be inferential, but must be clear and positive. Huckshorn v. Hartwig, 81 Mo. 648; Wilson v. Taylor, 119 Mo. 626; Herbst v. Merrifield, 133 Mo. 267. (9) Naked possession never ripens into a title; to be effiiective the possession must be under some claim of right and must be hostile to the title of the true owner. Baher v. Henderson, 156 Mo. 566; Stevenson v. Black, 168 Mo. 549. (10) The title to lands granted by the Government in lien of other lands, the title to which is defective, innres to the benefit of the legal representatives of the original grantee; and by “legal representatives” is meant heirs or purchasers. Wear v. Bryant, 5 Mo. 147; Kirk’s Heirs v. Heirs of Green, 10 Mo. 252; Holme v. Strautman, 35' Mo. 29'3; McCamant v. Patterson, 39 Mo. 100; Ewing v. Shannahan, 113 Mo. 194. (11) The legal title cannot be subjected to attack from one whx> is a stranger to it. Wear v. Bryant, 5 Mo. 166;; Mylar v. Hughes, 60 Mo. 116. (12) • Objections to the admission of evidence, not made in the trial court, cannot for the first time be urged in the appellate court. Comer v. Stratham, 173 Mo. 246; Cady v.. Coates, 101 Mo. App. 147; Weller v. Wagner, 181 Mo. 151; Chapin v. Stahlhuth, 102 Mo. App. 299'. (13) The objection to evidence that it is irrelevant, incompetent and immaterial amounts on appeal to no objection at all. Gayle v. Car Co., 177 Mo. 427; Randall v. Railroad, 102 Mo. App. 342.
   FOX, J.

This action was instituted in the county of Wayne and was tried at the August term, 1904, of the circuit court of that county. By agreement of parties the issues were submitted to the court, a jury being waived. After hearing the cause the court found the issue for defendants and rendered judgment accordingly, from which judgment plaintiff duly perfected his appeal to this court.

Plaintiff’s action is based on section 650, Revised Statutes 1899'. He claims the fee-simple title to the south half of southwest quarter of section four, in township 26, range seven east, located in Wayne county, Missouri, not through an unbroken chain of title from the Government, but by such possession for the period of more than ten years as to confer absolute title. His petition is in the ordinary approved form, with, k prayer that the court decree the title in plaintiff and that it determine and ascertain the title and interest in said property of all the parties.

Defendants answered the petition by denying the allegations thereof, except the allegation. that they claimed some interest in the property. Further answering and by way of new matter, defendants say that the estate, title and interest, which they claim to have in the real estate described in the petition, is the fee-simple title thereto held by them as trustees, and then prayed the court to ascertain and' determine the estate, title and interest of the plaintiff and defendants, respectively, in the said real estate, etc.

By his replication plaintiff denied generally the new matter set up in the answer.

■ The judgment rendered by the court is responsive to the pleadings, and as to the title to the property adjudges as follows: “And the court being fully advised in the premises, doth define and adjudge the title, estate and interest, severally, of the respective parties hereto in and to the real property described in the petition, to-wit: The. south half of the southwest quarter of section four in township twenty-six and range seven east, situated in the county of Wayne, State of Missouri, to be as follows: the said plaintiff has no title, interest or estate therein whatsoever, either legal or equitable; the said defendants, John M. Cates and Henry L. Cornet, are trustees under the will of Jere W. Clemens, deceased, for the use and benefit of the beneficiaries named in said' will, and as such trustees are seized of an indefeasible estate in fee-simple in said real property.”

The evidence as offered by plaintiff was substantially as follows:

1st. He offered a patent from the United States Government to Etienne Pepin, “or his legal representatives, ’ ’ dated in the year 1888, whereby the lands in dispute passed out of the Government.

2nd. A quitclaim deed from J. L. Allison and! wife to Willis R. Stroud and wife, dated December 29', 1874; acknowledged January 22, 1875, but which was never recorded, and which deed purports to convey a half interest in the land in dispute.

3rd. A quitclaim deed dated November 1, 1902, from Willis R. Stroud to the plaintiff, John W. Noble, recorded on November 5, 1902,, conveying all the lands in dispute.

4th. Evidence tending to show that Willis R. Stroud purchased the one-half interest to the land in: controversy from the administrator of Philip A. Con-nor, but that the deed was never recorded and had been lost and could not be produced.

5th. Also evidence of possession of Stroud for more than ten years before this action was brought. It is not deemed necessary to set out the evidence relating to the possession of plaintiff’s grantors, as the determination of the case in this court will not rest on the character of plaintiff’s evidence of possession, or whether such possession was sufficient to vest title in him.

The evidence on the part of the defendants was as follows:

1st. Surveyor General’s certificate No. 88, under Act of Congress approved July 4, 1836, showing the right to locate by Etienne Pepin, or his legal representatives, of 1361.12 acres of land, in lieu of survey 3277, recorded in Wayne county on February 4, 1904.

2nd. Certificate of land office at Jackson, Missouri, dated August 1, 1857, showing the re-location by Etienne Pepin or his legal representatives of 1361.12 acres, in lieu of survey confirmed by Act of Congress of July 4,1836, to Etienne Pepin or his legal representatives, and recorded in Wayne county on March 1, 1904.

3rd. Certificate of the register of lands at Iron-ton, Missouri, dated December 3', 1884, showing that the lands in question were entered by Etienne Pepin, or legal representatives, on August 1,1857.

4th. What is called by plaintiff a deed from Etienne Pepin to Pierre Chouteau, dated February 28, 1904, in which is recited'a .sale by Pepin to Chouteau of “the quantity of 1600 arpens of land superficial' measure conformably to a concession, which the said seller obtained from Lieutenant Governor of Upper Louisiana, Don Charles Dehault DeLassus, the 18th of October, 18001, to be taken between the Damesnes River and the swamp called ‘A Bequet’ about 4 or 5-miles to the N. W. (Northwest) of a Village PortageDes Sious,” recorded in Wayne county, April 9!, 1885.

5th. Deed from Pierre Chouteau to John Mullanphy, dated October 16, 1806, recorded in the District of St. Charles, “Book ‘A’ folios two hundred ninety-three and following,” on June 13, 1807,'and recorded in Wayne county on February 4, 1904. Both the original in- French and a translation in English were offered in evidence. This deed was acknowledged before a common pleas judge in the District of St. Louis. This deed alleges that it was made in the town and District of St. Louis. The property conveyed is thus described:“A tract of sixteen hundred arpens of land in superficie, situated in the District of Saint Charles, upon the River Darvene and the marsh called a Begact, as-is proven by the concession for the said land granted to Mr. E-tienne Pepin by Charles Dehault DeLassus on the eighteenth of October of the year one thousand and eight hundred, and belonging to said Peter Chouteau for having purchased it from the said EtiennePepin as appears from a deed executed before Mr. Francis Saucier, former commandant of the PortageDes Sious, on the t-wenty-eight of February, one thousand eight hundred and four, (the said land being not survey), which concession and a copy of the said sale are now delivered to the said John Mullanphy in order that himself, his heirs or assigns, may enjoy the said land of sixteen hundred arpens, and’ dispose of it, as a thing to him belonging. It has been agreed upon and covenanted between the parties, that in case the said Mullanphy should be deprived of the possession of the said land hereabove sold, the said Peter Chouteau binds himself to give to1 the said Mullanphy under the same guaranty as above the same quantity of land, equally good and timbered with that above, to be situated in the same territory of Louisiana, within twenty leagues from this town of St. Louis.”

6th. Partition proceedings purporting to be among the devisees of John Mullanphy, by which, among other lands, the lands in dispute were partitioned and sold. Also commissioners’ deed in said proceedings, dated August 30, 1889', conveying the land in question to Jere W. Clemens.

7th. Certified copy of will of Jere W. Clemens,, probated in the State of California and recorded in Wayne county, Missouri, on March 4, 1895. After specifically describing numbers of tracts of land and disposing of same, by Item Six the will recites: “All the-rest of my property and estate, of every kind and wherever situated, including my interest of whatever kind in and to the land embraced in a lease for 999 years made by my grandfather, John Mullanphy, to Phillipine Duchesne and others, dated March 1, A. D. 1827, and recorded in the Recorder of Deeds office of said city of Saint Louis, I give, devise and bequeath, unto my executors, in trust for the following uses and purposes, to-wit:” The defendants are named as executors and trustees.

8th. Defendants offered evidence tending to show that they had paid taxes on the land in question since the year 1885.

This sufficiently indicates the nature and character of the testimony upon which this cause was submitted to the court to enable us to determine the legal propositions. The record is before us for consideration

OPINION.

An examination of the pleadings discloses that plaintiff, John W. Nohle, asserts title in fee to the land in dispute, but by the allegations of his petition and by the evidence offered upon trial, he bases his claim of fee in the land not upon an unbroken chain of title passing down from the Government, but upon such possession under color of title held by him and his grantors as vested the fee in him by limitation. We will not in this opinion discuss the sufficiency of plaintiff’s evidence nor the goodness of his title by limitation, if he has any, but will leave his title entirely open and unaffected for further investigation and adjudication.

Defendants, by their answer, deny plaintiff’s title, and expressly assert that the estate, title and interest which they have in the real estate described in the petition is a fee-simple title held by them as trustees under the will of Jere W. Clemens. This latter allegation on the part of defendants was unnecessary. Under the provisions of section 650, Revised Statutes 1899, defendants, -as matter of defense, could have, shown any title vested in them, either legal or equitable, without expressly setting forth their title in the answer. However, defendants by their answer restricted their defense to a fee-simple interest. Also, by their evidence they undertook to establish an unbroken chain of title emanating from the Government and vesting in themselves as trustees. The judgment rendered by the court, responding1 to defendants’ answer and the court’s conception of their evidence, finds that they, as trustees, are seized of an indefeasible estate in fee-simple in said real estate. If defendants have succeeded in establishing an unbroken chain of title from the Government to themselves, then the judgment is correct. If any links are missing in such chain of title the theory of defendants set up in their answer and adopted by them upon the trial of the case must fall and the judgment cannot he sustained. [Stewart v. Lead Belt Land Co., 200 Mo. 281.]

No common source of title is relied upon in this case hy either party. Plaintiff for the purpose only of showing that the title had emanated from the Government offered a patent issued in 1888 to Etienne Pepin, or his legal representatives, hut nowhere claims to derive title, either mediately or immediately through Pepin or his legal representatives. On the other hand, defendants claim title through Pepin to Chouteau, Chouteau to Mullanphy, and the Government tó Mullanphy. This case, like the Stewart case, differs from the case of Harrison Machine Works v. Bowers, 200 Mo. 219, and Graton v. Land & Lumber Co., 189 Mo. 322, in that the doctrine of common source of title was applied under the circumstances in those cases and held to be applicable in actions under section 650.

In order to show that John Mullanphy was the legal representative of Etienne Pepin, two deeds were offered in evidence, one dated February 28, 1804, from Pepin-to Pierre Chouteau. This purports to convey 1600 arpens of land being a concession obtained from Don Charles Dehault DeLassus, Governor of Upper Louisiana, on the 18th day of October, 1800, to be taken between Darnesnes River and the swamp called “A Bequet” four or five miles northwest of the village of Portage Des Sious. The description in this instrument is very vague and indefinite. The original deed is written in French and there is attached' thereto a translation into English made on the 7th day- of April, 188-5, and sworn to by J. W. Uppercu. This instrument is not acknowledged nor was its execution proved as required by the Laws of 1885. The objections to the introduction of this deed do not go to a want of acknowledgment or that it was not entitled to be recorded in Wayne .county, Missouri. Neither do the objections raise the point that the certified copy of the record in Wayne county was not proper evidence. It is very true that this deed does not describe the land involved in this action, but if it is otherwise unobjectionable it might be competent as tending’ to show that Pepin obtained a concession from the Governor of Upper Louisiana in connection with the Act of Congress of July 4,1836, confirming this concession and allowing Pepin or his legal representatives to select other lands if the title to the concession failed.

The other deed introduced by defendants, dated October 16, 1806, was a deed from Peter Chouteau to-John Mullanphy. This deed was first recorded in the-District of St. Charles in 1807, and was next recorded in Wayne county, Missouri, on the 4th of February, 1904. The original deed is written in French; seems to be duly acknowledged and has attached thereto a translation in English which is not sworn to-. Both the-original and translation offered in evidence were certified copies of the record as it appears in Wayne county, Missouri: It does not appear when or by whom the translation was made. This deed, reading from the translation, purports to convey a tract of sixteen hundred arpens situated in the District of St. Charles, as is proven by the concession of the said land granted to Mr. Etienne Pepin by Charles Dehault DeLassuson the 18th of October, 1800, and belonging to the said Chouteau for having purchased from the said Pepin.. This further allegation appears in the said translation, to-wit: “It has been agreed upon and covenanted between the parties, that in case the said Mullanphy should be deprived of the possession of the said land here above sold, the said Peter Chouteau binds himself to give to the said Mullanphy under the same-guaranty as above,- the same quantity of land equally good and timbered with.that above sold, to be situated in the same territory of Louisiana, within twenty leagues of this town of Saint Louis.”

As stated above, the translation attached to the-deed of Chouteau to Mullanphy is not dated. There is-nothing to show that this translation was recorded in the District of Saint Charles, while the original deed does appear to have been so recorded in that district. It was not recorded in the county of Wayne until 1904. Plaintiff objected to the introduction of this translation because it did not purport to have been made by an expert, and because it was not proved as required by law. Under these, circumstances, especially considering the fact that this deed was not recorded until 1904 in Wayne county, we think that the provisions of section 909, Revised Statutes 1909, should govern as to this translation. That section requires the deed to be accompanied with a sworn translation in English. The translation attached to the Mullanphy deed was not sworn to. Therefore, in our opinion it should not have’ been admitted in evidence, and we think the .plaintiff’s objection was broad enough to justify this ruling.

It will be observed that the deed from Chouteau to Mullanphy describes the property as being situated in the District of Saint Charles. This court will take judicial notice of the fact that the territorial District of Saint Charles was located north of the Missouri’ river and that the present territorial limits of Wayne county were not embraced in that district. It will further take judicial notice of the fact that the lands situated in Wayne county are not within twenty leagues of the city of Saint Louis. [Harper Furniture Co. v. Southern Express Co., 12 Am. and Eng. Ann. Cases, 927, and notes to said case.]

Considering for the sake of argument the said deed to Mullanphy as properly in evidence, we find that Chouteau promised to guarantee the title to said property, and that in case Mullanphy should be deprived of his possession, Chouteau then bound himself under his guaranty to give to Mullanphy the same quantity of land to be situated in the same territory and within twenty leagues of the city of Saint Louis. Twenty leagues would be sixty miles, and yet tbe county of Wayne is located over one hundred miles from the city of Saint Louis. If the title to this land failed and some other person established a better right thereto than Mullanphy, under the terms of this deed he had the right to call upon Chouteau to give him an equal amount of land located within sixty miles of the city of Saint Louis. For all we know, or are advised in this case, that course may have been pursued. There is absolutely nothing in the evidence, beyond the provisions of the deed last referred to, which tends to show that Mullanphy was the legal representative of Etienne Pepin.

In 1845 the Surveyor General, whose office was located in St. Louis, Missouri, issued his certificate No. 88, by which he found that 1600 arpens'of land confirmed to Etienne Pepin, or his legal representatives, by Act of Congress approved on the 4th of July, 1836, had been regiilarly surveyed and numbered 3277, and that the whole quantity called for in the survey, to-wit, 1361.12 acres, had been sold or disposed of by the United States. The Surveyor General then finds and certifies that Etienne Pepin, or his legal representatives, is authorized to enter the same quantity of land in Missouri, in accordance with the said Act of July, 1836v Afterwards, on August 1, 1857, the Register of Lands at Jackson, Missouri, issued his certificate alleging that there had1 been presented to his office certificate No. 88 of the Surveyor General specifying that Etienne Pepin, or his legal representatives,’ were entitled to locate as a new location in consequence of valid interferences with the original claim, the amount of land specified in said certificate No. 88. And the said Register further certified that on that day, to-wit, August 1, 1857, said Etienne Pepin, or his legal representatives, had located certain lands, therein described, amounting to 1360 acres, among which are the lands described in plaintiff’s petition. In the year 1888 a patent was issued, signed by President Cleveland, reciting the provisions of certificate No. 88 of the Surveyor General, the certificate of the Eegister at Jackson, Missouri, and the acts of Congress authorizing the same, and then by the express terms of said patent and in pursuance of the Act of Congress of July 4,1836, the lands involved in this suit, with others, were conveyed to Etienne Pepin, or his legal representatives. There is nothing in the evidence offered in this ease to show who procured the issuance of certificate No. 88 in 1845, by the Surveyor General, nor is it shown who presented said certificate No*. 88 to the Eegister of Lands at Jackson, Missouri, on August 1, 1857.

Defendants cite the following cases: Wear v. Bryant, 5 Mo. 147; Kirk v. Green, 10 Mo. 252; Holme v. Strautman, 35 Mo. 293, being actions growing out of the provisions of the Act of Congress of February 17, 1815. This act followed very closely the great earthquake which almost entirely changed the topography of New Madrid county, and materially injured much of the land situated in that county. By the provisions of the Act of 1815' owners of land in New Madrid county, which land had been injured by the earthquake, were given the right to locate elsewhere certain quantities of land, the injured land, upon re-location, to revert to and become the property of the Government. This was somewhat of a proffered barter and exchange, and it was held that something must be done on the part of the owner, or his legal representatives, of the injured land to indicate his acceptance. In speaking of those cases the following language is used in the case of Holme v. Strautman, supra: “The case is totally dissimilar from that of a confirmation to a named person, ‘or his legal representatives,’ because the confirmations are regarded as pure donations and always beneficial to the grantees, and as requiring no act to be performed by the confirmees in acceptance of the grants, whilst the act for the relief of sufferers by earthquakes in New Madrid, required the persons to be benefited by it to do acts which effected transfers t© the Government of their land in New Madrid.” In all the cases, however, cited by defendants, it was disclosed who made application for location or re-location certificates or patents. It probably was not necessary for such certificates or a patent to name and identify the representatives. It was a convenient way adopted by the Government officials to avoid determining the question as to who were the claimant’s legal representatives. Yet, in this action under the facts and circumstances as disclosed, it does seem to us that'defendants •should have shown that Mullanphy, or his legal representative, was the claimant as the legal representative ■of Etienne Pepin, and that it was he, or his legal representative, who procured the issuance of certificate No. 88, dated in 1845, of the Register’s certificate at ■Jackson, Missouri, certifying to the re-location, dated in. 1857, and of the patent issued in 1888. Unquestionably the records of the various Gover;ranerLt offices will ■disclose who the person was that claimed to be the legal representative of Pepin. The original certificate No. 88 issued by the Surveyor General, was evidently surrendered on August 2, 1857, when the re-location •certificate was issued. Evidence of who surrendered that certificate could certainly be easily obtained.

We have indicated the errors in the trial of this cause. Upon the evidence disclosed by the record the judgment and decree of the trial court cannot be maintained. As before stated, we will express -no opinion upon the evidence as introduced by plaintiff. While it may not be out of place to say that plaintiff’s showing upon his claim of title was of a substantial character, yet as the case must be retried we leave the question involved entirely open to be disposed of by the trial court upon the evidence as introduced upon such second trial. The judgment of the trial court should he reversed and the cause remanded for a new trial. It is so ordered.

All concur.