author: FERRISS, J.

text:
    JOHN N. MILLER, Appellant, v. C. L. MEDLEY, C. L. KEATON et al.
    Division Two,
    July 15, 1911.
    1. SHERIFF’S TAX DEED: Prima-Facie Evidence of Title. A tax deed void on its face is not prima-facie evidence of title; and in that case, Sec. 7684, R. S. 1889, is of no avail, and no-title passes.'
    2. -: Failure to Recite Amount of Bid. The sheriff’s tax deed is not void because it does not recite, as in ordinary sheriff’s deed for land sold under execution, that the purchaser bid a certain sum for the land, if it does recite that the purchaser was the highest and best bidder, and that $250 was paid by him to the sheriff; and in consideration thereof the conveyance is made.
    3. -: 306 Acres for $21.19 Taxes. The sale of 306 acres of land for $250 to satisfy a judgment for taxes for $21.19,. where the lands were all owned by the same persons and lay in the same section, was irregular, and might for that reason be set aside in a direct proceeding for that purpose; but the deed is not void, and in a suit to ascertain and determine the title cannot, because of the irregularity, be held to be invalid and void on its face)
    4. -: Abbreviations. A tax deed is not void because it uses abbreviations in the description of the lands which are well understood," such as “SW}4 and Wof NW14,” etc.
    5. -: Using Printed Form. The use of a printed form so prepared as to be appropriate where several tracts were involved, and the failure to change certain expressions therein so as to avoid confusion, for instance, such expressions as “upon each of the above tracts,” when the land was evidently assessed, as one tract, amount- to a slight irregularity, but do not render the tax deed void.
    6. -: -: Figures in Wrong Column. Writing the aggregate of the taxes due in the column headed “Interest” instead of in the column headed “Taxes” is a clerical error.
    7. -: No Showing of Taxes for Separate Years. A tax deed is not void for that it fails to show the amount of taxes due for each of the two years sued for, thus, “Year 1894, $-; year 1895, $-; total, $21.19.” If the petition and the tax bill show the taxes for each year (and they may be used in aid of the judgment), the tax deed will not for that irregularity be held invalid in a collateral proceeding.

      8. -: No Showing of Amount of Taxes Due Against Each Tract. Nor will the tax judgment be held invalid in a collateral proceeding because it does not "state the amount of taxes and interest found to be due upon each tract or lot,” as the statute requires, although that is an important requirement, since each tract is liable for its own taxes. [Following Jones v. Driskell, 94 Mo. 190.]
    9. -: Order of Publication: Wrong Name: Kitie for Catharine. An order of publication directed to Kitie A. Yigar is not a sufficient notice to Catharine A. or Katie A. Viger. Kitie is not a diminutive of or derivative from Catharine. Neither Katie A. Vigar nor Catharine A. Vigar was required to appear to such a notice. The law requires strict accuracy in the first name, though it may disregard the middle name or initial.
    10. TITLE: Set Out in Answer: Not Admitted by Reply. Where defendant set out his chain of title in his answer but offered no proof thereof, his title is not admitted by the pleadings, where there is a reply denying each and every allegation of the answer.
    Appeal from Stoddard Circuit Court. — Hón. J. L. Fort, Judge.
    Eeversed and remanded (with directions).

      Henry 8. Shaw, Ralph Wammach and N. A. Mos* ley for appellant.
    (1) The court erred in excluding the sheriff’s deed as evidence of plaintiff’s title. The sheriff’s deed is, in form and substance, in compliance with the statute and its recitals are prima-facie evidence of their truth. E. S. 1889, sec. 4954; Lewis v. Curry, 74 Mo. 49; E. S. 1889, sec. 7684; Hall v. Kleipzig, 99 Mo. 89; Cruzen v. Stevens, 123 Mo. 346. Mere irregularities will not ordinarily invalidate a sheriff’s deed. 17 Am. and Eng. Eney. Law (2 Ed.), 1033; Wilhite v. Wilhite, 53 Mo. 74; Hall v. Kleipzig, 99 Mo. 83; Freeman on Executions (3 Ed.), sec. 43. The description of the land in the deed is sufficient. E. S. 1889, sec. 7707; E. S. 1889, sec. 9328; Lowe v. Ekey, 82 Mo. 291; State ex rel. v. Vaile, 122 Mo. 48. Even though a judgment for taxes due for several years is rendered in solido for the aggregate amount of all taxes due it is not a void judgment, and cannot be attacked collaterally. State ex rel. v. Hunter, 98 Mo. 386; Jones v. Driskell, 94 Mo. 191; Boyd v. Ellis, 107 Mo. 394; Gray v. Bowles, 74.Mo. 419; Stevenson v. Black, 168 Mo. 549; Brown v. Walker, 11 Mo. App. 226; Morrison v. Turnbaugh, 192 Mo. 427; Brown v. Walker, 85 Mo. 262. The failure of the sheriff to sell the land by its smallest legal subdivision will not invalidate the sale. Wellskear v. Kelley, 69 Mo. 343; Brown v. Walker, 85 Mo. 262, 11 Mo. App. 226. The sale of the land for a greater amount than the amount of taxes and costs will not invalidate the sale. R. S. 1889, sec. 7685. The notice of publication was amply sufficient, and for greater length of time than the law -required. Hayward v. Russell, 44 Mo. 252; Young v. Downey, 150 Mo. 317; Russell v. Grey, 164 Mo. 69. (2) The defendant’s remote grantor is es-topped from setting up a claim to this land now, and defendant having had actual notice of the facts constituting such estoppel is equally estopped. Parties cannot accept the value of land, acquiesce in the sale for years, and then recover the land from the vendee. Barnett v. Smart, 158 Mo. 167; Society v. Murray, •145 Mo. 622; Austin v. Loring, 63 Mo. 22; Moore v. Rogers, 99 S. W. 1023; Flesh v. Lindsay, 115 Mo. 1. (3) The court erred in rendering any decree for the defendant, because of an utter absence of evidence to support it. It devolved upon the defendant to prove by competent testimony, not only that plaintiff’s title was invalid, but that his title was valid. The allegations of an answer are not proof of them, they must be supported by some kind of testimony. The •obligation to prove any fact is upon the party who asserts the affirmative of the issue. Glover v. Henderson, 120 Mo. 367. The will of Nathan T. Thurber devised a fee in the land to his wife, Carrie E. Thurber. Lee v. Moore, 93 S. W. 911; Gardner on Wills, 466; Bernstein v. Bramble, 99 S. W. 682; 2 Redfield on Wills, p. 278; Stowell v. Hastings, 59 Yt. 494; Rena v. Meier, 29 Am. Rep. 495; Roth v. Rauschenbusch, 173 Mo. 252; Underwood v. Cave, 176 Mo. 1; 30 Am. and Eng. Ency. Law, 750; Tebow v. Dougherty, 103 S. W. 985; Cross v. Hoch, 149 Mo. 325; Collier’s Will, 40 Mo. 287; Grace v. Perry, 197 Mo. 550; Gannon v. Pauk, 98 S. W. 474; Hardaker’s Estate, 204 Pa. St. 181.

      John G. Brown and G. L. Keaton for respondent.
    (1) This is an action at law tried by the court sitting as a jury, and as no declarations of law were given or refused there is nothing before the court except the sufficiency of the pleading and judgment, and these being regular tbe judgment should be af-firmed. Smith v. Royse, 165 Mo. 658; Jordan v. Davis, 172 Mo. 608; Bank v. Barbee, 198 Mo. 471. (2) In bis brief, appellant insists that there is no substantial evidence to support tbe finding of the trial court, but bis motion for new trial does not raise tbis issue, and be cannot urge it here. Sec. 640, R. S. 1899; Blakely, v. Railroad, 79 Mo. 389; Ringo v. Railroad, 91 Mo. 671; Putnam v. Railroad, 22 Mo. App. 589; State v. Morton, 42 Mo. App. 64. (3) Tbe appellant’s reply to respondent’s answer simply denying “all new matter” in said answer is worthless as a reply, and did not put in issue tbe title set up by respondent in bis answer, and be was entitled to a decree on tbe pleadings,, and tbe presumption is that tbe court gave' “judgment upon the answer, which is tbe province of the court:” Young v. Schofield, 132 Mo. 661; DeZell v. Fidelity Co., 176 Mo. 279; Betz v. Tel. Co., 121 Mo.. App. 478. (4) In tbis action to try title under R. S. 1899, sec. 650, plaintiff must recover, if at all, upon tbe strength of his own title. And if defendant showed that plaintiff’s tax title from the common source is void, the plaintiff was not entitled to any decree, and it is none of his concern where the title may be, but the record shows it to be in respondent. Wheeler v. Land Co., 193 Mo. 291; Machine Works v. Bowers, 200 Mo. 236; Dixon v. Hunter, 102 S. W. 972. (5) Plaintiff’s claim of title is based solely on a sheriff’s tax deed, dated March 9, 1898, purporting to convey only the interest of the “heirs at law of Nathan T. Thurber, deceased,” and, if invalid, is worthless in an assault on respondent’s title under the will of Nathan T. Thurber, deceased. Hartman v. Hornsby, 142 Mo. 375; Hudenton v. Loring, 6 Tex. Civ. App. 122; Rowe v. Cattle Co., 99 Mo. App. 163; Blackwell on Tax Titles, pp. 53 and 68. (6) The tax proceeding against the heirs of Nathan T. Thurber, deceased, whose correct names are set out in the deposition of Carrie E. Thurber and in the will of Nathan T. Thurber, deceased, is absolutely void for the reason that the heirs, the three children, married daughters, were not made parties defendant by their correct names. Mary A. Leman is misnamed Mollie H. Lemen, Katie Antoinette Yiger is misnamed Kitie A. Yigar, Plattie E. Stone is misnamed Birdie E. Stone; not a single Christian name is correctly given, and the only surname correctly given is “Stone.” Mary A. Leman is misnamed Mollie H. Lemen (men instead of man); Katie Antoinette Yiger (Yigur or Yijur, the “ger” as in Gertrude, gurtrude, or as in German, jurman), is misnamed Yigar as in garfish, and the Christian name Kitie used instead of the true name Katie Antoinette. Hattie E. Stone is misnamed Birdie E.; and “the substituted service of process is void and valueless as if a blank had been left where the wrong name is inserted.” Campbell v. Johnson, 65 Mo. 439; Powell v. Greenstreet, 95 Mo. 15; Troyer v. Wood, 96 Mo. 478; Evarts v. Lumber Co., 193 Mo. 451; Burge v. Burge, 94 Mo. App. 26. (7) The collector and his attorney knew that Carrie E. Thnrber was the widow of Nathan T. Thnrber, deceased. They knew that the taxes for 1894 and 1895 accrued, became delinquent and defaulted against Nathan T. Thurber, during his lifetime, and that he left three heirs, as shown on the face of the proceedings. They also knew that under R. S. 1889, secs. 4513, 4525, Carrie E. Thurber’s dower and life estate in the land in controversy could not be sold for his debt, the delinquent taxes of Nathan T. Thurber, deceased. So plaintiff’s tax deed is absolutely void as to Carrie E. Thurber’s dower life estate. R. S. 1889, secs. 4513, 4525; Blevins v. Smith, 104 Mo. 593; Bartlett v. Tinsley, 175 Mo. 322; Myers v. Hansbrough, 100 S. W. 1137; Keeney v. McVoy, 103 S. W. 946. (8) Neither the husband’s curtesy nor the widow’s dower can be taken under a judgment and execution for the debts of the deceased party. Carrie -E. Thurber was sued simply as an heir of Nathan T. Thurber, deceased, a;s shown by the record, plaintiff’s petition in tax suit and plaintiff’s sheriff’s deed. And her dower interest was not before the court, and as she was not an heir, and had no estate as an heir, the proceedings were absolutely void as to her. “A party is not entitled to a judgment on a finding of facts different from any theory of the case set up in the petition.” “’It is equally as well settled that a party cannot state one cause of action in the petition and recover upon another.” Schneider v. Patton, 175 Mo. 722; Roden v. Helm, 192 Mo. 93. (9) Carrie -E. Thurber was not sued as a legatee and devisee under the will, but even if she had been the tax sale would have conveyed no title for these back taxes. “Where an express life estate is created, an added power of dis - position does not convert the estate into a fee.” It is a mere power which enables her to give or convey the estate to whom she pleases. “Which the law holds to be a mere power.” And it is well settled that the widow has no estate in tlie land “which can be sold under' execution.” Waller v. Mardus, 29 Mo. 26;. Grace v. Perry, 197 Mo. 550.
   FERRISS, J.

This is a suit to define and quiet the title to a tract of land comprising about three hundred and six acres, in section 4, township 23, range 12, Stoddard county, Missouri. The action was originally brought by plaintiff, John N. Miller, against one' C. L. Medley, as sole defendant, the original petition being filed January 24, 1902, returnable to the March term, 1902, of the circuit court of said county. After-wards, on March 27, 1902, Samuel P. Campbell became' the owner of a one-half interest in the lands, and on September 1,1902, purchased the other half from Carrie E. Thurber. On February 2, 1904, plaintiff filed his amended petition, making C. L. Medley, Berlin Stafford, Mary Y. McShane and Samuel P. Campbell parties defendant, but the case was dismissed as to the three last-named defendants. Defendant Medley answered, but he abandoned the case, and his pleading is not, therefore, incorporated in the abstract of the record.

At the March term, 1904, of said court, the respondent, C. L. Keaton, on his own motion, was made a party defendant to the action, and filed his answer to the petition. Pie states in his answer that he enters his appearance as defendant in the cause, instead of Samuel P. Campbell, and that he had purchased all the right, title, interest and estate of the said Campbell in and to the real estate in plaintiff’s petition described. The defendant avers in his answer that he-is advised and believes that plaintiff’s claim to said real estate is based on a void tax deed, and that the defendant is owner in fee absolute of said real estate, and then claims and deraigns his title as follows: Patent from the United States to the State of Mis-‘ souri; patent from the State to the county of Stodffard; patent from said county to Henry H. Bedford; warranty deed from Bedford to Nathan T. Thnrber; Nathan T. Thnrber, by last will and testament, to Carrie E. Thnrber, with full power to sell and dispose of said property, and to his children, Hattie E. Stone, Katie Antoinette Yigar and Mary A. Lemen; quitclaim 'deed.from Carrie E. Thnrber, Parmelia L. Stone, and Harry L. Stone, her husband, conveying an undivided one-half interest in said real estate to Samuel F. Campbell; quitclaim deed from Carrie E. Thurber, conveying the other undivided one-half interest “to Samuel F. Campbell; special warranty deed from 'Samuel F. Campbell and Anna M. Campbell, his wife, dated February 19, 1904, to the defendant, C. L. Keaton.

Plaintiff’s reply to defendant Keaton’s answer ■denied each and every allegation, averment and statement of new matter therein contained.

Plaintiff offered in evidence, as the basis of his title, a deed dated March 9, 1898, from James A. Evans, sheriff of Stoddard county, conveying to plaintiff the land in controversy, said deed being admitted by the court subject to defendant’s objections.

Defendant introduced in evidence, over plaintiff’s . objections, the deposition of Carrie E. Thnrber, as f olows:

“My name is Carrie E. Thnrber; I am seventy years of age. I live at Lansing, Michigan. I am the ■widow of Nathan T. Thnrber, late of Detroit, Michigan. Nathan T. Thnrber, my husband, died at Detroit, Michigan, March 19, 1896. I am his widow, and "his heirs, other than myself, at the time of his death, were Mary A. Thnrber, a daughter, wife at the time -of A. H. Leman; Katie A. Thnrber, a daughter, wife at the time of E. R. Viger, and Hattie E. Thnrber, a ■daughter, wife at the time of Harry L. Stone. They were all alive in June, 1897, and are still living. I :Sold section 4, township 23, range 12, Stoddard connty, Missouri, to S. F. Campbell, in September, 1903. None of tbe other heirs signed the deed.”

Defendant nest offered in evidence the will of Nathan T. Thurber, dated March 14, 1896, the portion of said will relating to the devise of testator’s land being as follows:

“After the payment of all my just debts and funeral charges, I give, bequeath and devise all my real and personal estate, wherever situated, as follows: I give, devise and bequeath to Katie Antoinette Yiger and Austin IT. Lemen, trustees, for Nathan E. Viger, Harold T. Yiger, and Edward R. Yiger, Jr., the sum of fifteen hundred dollars, said sum to be invested by said trustees and to be divided and distributed among my grandchildren named, viz: Nathan E. Yiger, Harold T. Yiger and Edward R. Viger, Jr., as follows: The sum of fifteen hundred dollars, with interest thereon, to be paid to each of said grandchildren when He shall have arrived at the age of twenty-two years. In case of death of either of said grandchildren before arriving at the age of twenty-two years, then and in that case I direct that the share of such grandchild shall be and belong to the surviving grandchildren named herein, it being the intention hereby to provide that said total sum shall go to said grandchildren, or to the survivor of them.
“Second. After the payment of the foregoing, bequests, I give, devise and bequeath all the remainder and residue of my property, both real and personal, of every kind and nature, wherever situated, to my wife, Carrie E. Thurber, for the term of her natural life, with full power to sell and dispose of the same for her support, maintenance and for any other purpose whatsoever, as she shall see fit, it being my intention that she shall have the same right to use, dispose of and convey said property as though the same were bequeathed to her forever.
“Third. After the death of my said wife, Carrie E. Thurher, I give, devise and bequeath all the residue and remainder of my property, both real and personal, not disposed of by my said wife during her lifetime, to my three daughters, Hattie E. Stone, Katie Antoinette Yiger and Mary A. Lemen, in equal shares, and to their heirs and assigns forever.”

Defendant next offered in evidence the petition and back taxbill, order of publication and affidavit for order of publication as and for a supplied record in the case of State ex rel. A. L. Harty v. Carrie E. Thurber, Mollie H. Lemen- and Austin H. Lemen, her husband, Katie A. Yiger and Edward E. Yiger, her husband, Birdie E. Stone and Harry L. Stone, her husband, heirs at law of Nathan T. Thurber, deceased, being tax suit No. 18 for taxes due for the years 1894 and 1895, amounting tó $21.19, on land alleged in the petition to be owned by said parties, and described as “Tract No. 1, SW 1-4 and W. 1-2 of NW 1-4 and NW 1-4 of SE1-4 and W 1-2 of SW 1-4 of SE 1-4 of section 4, township 23, range 12.”

This was the suit in which, on the 23d day of November, 1897, judgment for taxes was rendered against the defendants therein named, and under which judgment the sheriff of Stoddard county sold the land to the plaintiff, John N. Miller.

The findings and judgment of the court were as follows: .

“That the plaintiff claims title from the common source, Nathan T. Thurber, by virtue of a sheriff’s deed in a tax suit to enforce the State’s lien against the land sued for, dated March 9, 1899. The ^ourt doth find that' said deed is void and conveys no tide in and to the premises, for the reason that the court in said tax proceedings did not obtain jurisdiction, and its judgment is void and subject to collateral attack.
“The court further finds that the said C. L. Medley doth claim title through a sheriff’s deed dated September 19, 1868, by mesne conveyances. That said deed is void and conveys no title. And the court doth further find that defendant C. L. Keaton claims and holds title from the common source, Nathan T. Thurber, by and through his last will and testament and mesne conveyances thereunder, by a regular chain of title, and hath the regular and true title to the premises in the petition described.
“The court doth therefore and thereupon order, adjudge and decree that the title to said premises, to-wit, the southwest quarter and the west half of the northwest quarter and the northwest quarter of the southeast quarter and the west half of the southwest quarter of the southeast quarter of section 4, in township 23, range 12 east, be determined and vested in the defendant, C. L. Keaton, and that he recover the same together with his costs in this behalf, and that he have execution against the plaintiff. ’

Plaintiff’s motions for new trial and in arrest having been overruled, he saved his exceptions and apjiealed to this court.

Plaintiff insists that the sheriff’s deed under which he claims title is in form and substance a compliance with the statute, and its recitals prima-facie evidence of their truth.

I. Section 7684, Revised Statutes 1889, provides that when land is sold by the sheriff under a judgment and fieri facias for back taxes, “the sheriff shall execute to the purchasers of real estate under this chapter a deed for the property sold, which shall be acknowledged before the circuit court of the county or city as in ordinary cases, and which shall convey a title in fee to such purchaser of the real estate therein named, and shall be prima-facie evidence of title, and that the matters and things therein stated are true.”

The defendant contends that the sheriff’s deed in this case is void upon its face. If that be true, the statute quoted is of no avail, and no title passed by the deed. The objection is that the deed does not show that anything was bid for the land at the sheriff’s sale, and does not recite, as in ordinary sheriff’s deeds for lands sold under execution, that the purchaser, “being the highest and best bidder for said real estate, at the price and sum of . . . dollars, the same was stricken off and sold to said (purchaser) for that sum.” The deed, however, does recite that “John N. Miller, being the highest and best bidder for the following described real estate [describing the land in question], the said last above described tract was stricken off and sold to the said John N. Miller for the sum bid therefor by him as above set forth. Now, therefore, in consideration of the premises, and the sum of two hundred and fifty dollars to me, the said sheriff, in hand paid by said John N. Miller, the receipt of which I do hereby acknowledge, ... I, James A. Evans, sheriff as aforesaid, do hereby assign, transfer and convey to the said John N. Miller, all of the above described real estate so stricken off and sold to him,” etc. Thus, by the subsequent recitals in the deed, it is shown that the bid for the land was two hundred and fifty dollars; and when the deed is considered altogether, it is, in respect of the matter complained of, in substantial compliance with the statute.

The deed shows upon its face that the land was sold in a lump, while as contended by defendant, the several tracts should have been sold separately, and only enough sold to satisfy the judgment. This land all lies in the same section, and at the time of its assessment the land all belonged to the same persons. Therefore, under section 7553, Revised Statutes 1889, which required all land owned by the same person in the same section, or lands so owned in the same block, to be consolidated and treated as one tract or one lot, the land was properly assessed as one tract; bnt it does, not follow that the sale of it as one tract was proper.

Another objection to the deed is that it shows that the judgment under which the land was sold was. only for -twenty-one dollars and nineteen cents, and the amount which the land brought at the sale was. two hundred and fifty dollars, an amount greatly in excess of the judgment. Section 7683, Revised Statutes 1889, provides as follows:

“The judgment, if against the defendant, shall describe the land upon which taxes are found to be due; shall state the amount of taxes and interest found to be due upon each tract or lot, and the year or years for which the same are due, up to the rendition thereof, and shall decree that the lien of the State be enforced, and that the real estate-, or so much thereof as may be necessary to satisfy such judgment, interest and costs, be sold, and a special fieri facias shall be issued thereon, which shall be executed as in other cases of special judgment and execution, and said judgment shall be a first lien upon said land.”

While the great difference between the amount of the judgment and the amount which the land brought at the sale strongly indicates that much more of the land was sold than was necessary to satisfy the judg-. ment and costs, the sale was not for that reason void, but irregular, and might have been set aside in a direct proceeding for that purpose. [Yeaman v. Lepp, 167 Mo. 61.] Nor is the deed void because of the use of abbreviations which are well understood in describing land. [Sec. 7707, R. S. 1889.] In State ex rel. v. Vaile, 122 Mo. 33, it is said abbreviations in assessment rolls being in every day use and well understood, are sufficient.

II. The deed of the sheriff was evidently upon a printed form so prepared as to be appropriate where several tracts were involved. That such form was used is apparent from an inspection of the certified copy exhibited to us. -Some confusion appears because of the use of this form. It is, however, clear that the land was assessed as one tract and was • so treated throughout the proceedings. The expression in the deed, “upon each of the above tracts,” is found in the printed form. The failure to change the form presents a slight hut not serious irregularity. So the writing in the aggregate of the taxes in the column headed “Interest” instead of the one headed “Taxes” is an obvious clerical error.

III. Defendant contends that the sheriff’s deed is void on its face by reason of its failure to show the amount of taxes delinquent for each of the years 1894 and 1895. The deed shows the aggregate of the taxes for the two years in the following form: “Tear 1894, $-; year 1895, $-; total, $21.19.”

Sections 7682, 7683, Revised Statutes 1889, require the petition in a tax suit to ‘ ‘ show the different years for which taxes are due,” and that the same matter shall he set forth in the authenticated tay bill filed with the petition. The judgment is required to state the amount of the taxes “and the year or years for which the same are due.” The judgment rendered in the tax suit was not put in evidence. Respondent, however, introduced a copy of the petition in the tax suit together with the authenticated tax hill, which severally state the amount of the taxes for each fund and for each year separately. Assuming, as we must, that the sheriff’s deed correctly recites the judgment, does the fact that the judgment states the aggregate of the taxes for the two years, and not the amount for each year separately, invalidate the judgment? The statute does not say in terms that the judgment should state the amount due for each year separately. It says that the judgment shall state the amount of the taxes,- ‘ and the year or years, for which the same are due.” The judgment here, as recited in the sheriff’s deed, states the aggregate amount of the taxes, viz., $21.19, for the years 1894 and 1895.

It is claimed that this court has in two cases construed the statute to mean that the judgment must state the amount due for each year separately, and we are cited to Bland v. Windsor, 187 Mo. 108, and Cooper v. Gunter, 215 Mo. 558. Neither of these cases involves the point under discussion. In Bland v. Windsor a judgment was rendered for the taxes of 1897, when the action was predicated upon the taxes for 1876. It was held by Fox, J., that the judgment was invalid because it did not correctly state the year for which the taxes were due. In other words, the judgment was upon a cause of action not stated in the petition.

In Cooper v. Gunter, supra, the judgment did not state the year or years for which the taxes were due, and the judgment was held bad because it omitted the year or years entirely. That case, however, contains a significant intimation that if the petition had stated the years for which taxes were due, then the defect in the judgment might be supplied by reference to the petition. In the case at bar we have both the petition and tax bill, and they both correctly state the taxes due for each year separately; so that, upon the whole record, the facts required by statute appear. In State ex rel. Waters v. Hunter, 98 Mo. 386, it is said by Barclay, J., that £<a judgment may properly refer for particulars to other parts of the record;” in that case, to the finding of the court. Taking what is said by Valliant, J., in Cooper v. Gunter, supra, together with the above holding by Barclay, J., we have sufficient authority to hold that the omission in the judgment of the separate amount of each year’s tax may be supplied by reference to the petition and tax bill. We are not disposed, however, to rest our opinion upon that ground. We think the defect in the judgment is a mere irregularity, not available to the defendant in this proceeding. The statute above referred to (Section 7683, E. S. 1889) provides in express terms that the judgment ‘ ‘ shall state the amount of taxes and interest found to be due upon each tract or lot.” This would seem to be a more important requirement than that the judgment should state the year or years for which taxes are due, inasmuch as each tract is liable for its own taxes. In Jones v. Driskill, 94 Mo. 190, it was held by this court that the failure of the judgment to find the amount due on each tract separately was erroneous and subject to correction on appeal; yet, Brace, J., speaking for the court (p. 199) says: “It is not void, and having been rendered by a court having jurisdiction of the person and subject-matter, the title of a purchaser of property bought at execution sale under such judgment is not affected by such error.” We regard this case as establishing the law of this State, and have no disposition to depart from the rule declared therein. The above case of State ex rel. v. Hunter went further, holding valid a judgment for taxes which aggregated the taxes due on several tracts for several years, because in the finding of the court the tracts of land, with the amount due on each tract, were set out separately. In that case the finding itself in stating the taxes due on two of the tracts aggregated the taxes for several years, as was done in the case at bar. We do not think it necessary in this case to go as far as to hold that the judgment was entirely regular. It is sufficient to hold that it is good in a collateral proceeding. In Brown v. Walker, 11 Mo. App. 226, Thompson, J.,. discusses at length the subject of irregularities in tax judgments, and his opinion in that case was adopted by this court (85 Mo. 262). See also, Morrison v. Turnbaugh, 192 Mo. 427.

IV. The other questions raised by defendant as to the validity of the sheriff’s deed are disposed of in favor of the plaintiff by the decision of this court in the case of Keaton v. Jorndt, 220 Mo. 117.

V. In the above case of Keaton v. Jorndt, the court holds that the sheriff’s deed conveyed the interest of Katie A. Yiger. In that case there was no question raised as to misnomer in the order of publication. In this' case the original abstract prepared by the appellant shows that she was named in the order of publication as Kitie A. Yiger. The abstract filed subsequent to the order granting a rehearing states that the name was published as Katie A. Yigar. The defendant asserts that the statement in the original abstract is correct. We have no transcript of the record, the case having come up on the short form. If defendant correctly states the facts, we think the notice by publication was bad as to Katie A. Yigar as well as to the other daughters who were incorrectly named, as held in Keaton v. Jorndt, supra, Mary A. Leman being misnamed Mollie IT. Leman, and Hattie E. Stone as Birdie E. Stone. The true name of Mrs. Yigar was Katie A. “Kitie” is not idem sonans with “Katie;” nor is it recognized as being with Katie a diminutive of Catharine. See Standard Dictionary (Punk & Wagnalls), where Katie, Kit and Kitty are given as the derivatives. This court has steadily maintained the doctrine that the given name — the first name — must be correct in an order of publication. We have held that a change in or omission of the middle name or initial is unimportant. This on the theory which comes to us from the common law that such middle name or initial is no part of the name; in other words, that in law there is only one given name. [Howard v. Brown, 197 Mo. l. c. 46, and cases cited; Nolan v. Taylor, 131 Mo. 229.] So far as the first name is concerned, however, the law, as heretofore held by this court, requires strict accuracy. [Ohlmann v. Sawmill Co., 222 Mo. 62.] Where substituted service is employed, it is not a question of actual notice. One may know that a suit is pending against him, but he is entitled to such service as the law directs before he is required to appear, and without such service the court acquires no jurisdiction of his person. Personal service cannot be had by- service upon'some other person, and substituted service •cannot be had upon one by some other name than‘his true name. Kit and Kitty are common substitutes for Kate and Katie; but Kitie is unusual, not given as a •derivative from Catharine, and not similar in sound to Katie. It is not Katie, nor is it idem sonans with Katie. The following rule was laid down by this court in Simonson v. Dolan, 114 Mo. l. c. 179: “The rule established by the authorities is that names are idem sonans if the attentive ear find difficulty in distinguishing them when pronounced, or common and long continued usage has by corruption or abbreviation made them identical in pronunciation. . . . It is not absolutely necessary that the names should be spelled alike, so that the pronunciation is the same.”

VI. In his answer defendant sets out his claim of title, but made no proof thereof/ He now claims that the reply did not put in issue the fact's alleged in the answer. The reply was as follows: “Now comes the plaintiff for reply to the new matter in co-defendant Keaton’s answer herein denies each and every allegation, averment and statement therein contained.” We think this was a good reply. The case, therefore, stands without proof of defendant’s claim of title.

VII. ' We have no satisfactory basis for a final judgment upon the nature and extent of the interests •of the parties. We reverse the judgment and remand the cause, with directions to the circuit court to enter a judgment in favor of plaintiff, vesting in him the title to whatever interest Carrie E. Thurber had in the lands acquired under the sheriff’s deed, and also vesting in him the title to the interest of Katie A. Vigar, if the evidence shows that in the order of publication her true name is correctly written as Katie A. Vigar; such judgment to ascertain and declare the nature and extent of the title so acquired by plaintiff. We further direct the circuit court hy its judgment to ascertain and declare, upon proper proof, whether the defendant has acquired any interest in said lands, and if so,, the extent and nature thereof.

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


source: Caselaw Access Project

author: ROY, C.

license: Public Domain

text:
    THE STATE v. JAMES ROBINSON, Appellant.
    Division Two,
    July 15, 1911.
    1. ACCESSORY: Instruction: “Said Felony.” An instruction in a prosecution against defendant as an accessory before tbe fact to the crime of false registration, which begins by telling the-jury that they must pass upon tbe question of tbe guilt of tbe principal, and if they find him guilty then they shall proceed to determine what connection tbe defendant had with “said felony,” is not erroneous. Tbe jury are supposed to understand that tbe existence of “said felony” is not determined until they themselves determine it.
    2. -: -: Guilt or Innocence of Another. And an instruction, set out in tbe opinion, which tells tbe jury that it is their duty to consider exclusively tbe guilt or innocence of defendant “without regard to tbe question of tbe probable guilt or innocence of any other person of any crime,” is held not prejudicial to defendant, under tbe circumstances of this case, although, standing by itself, it is subject to verbal criticism.
    "3. -: Indictment: “Peace and Dignity of the State.” It is not necessary to tbe validity of an indictment for participation as an accessory before tbe fact in tbe crime of false registration that tbe words, “against tbe peace and dignity of tbe State,” follow tbe statement of tbe principal’s alleged offense, when they appear, as they do here, at tbe close of tbe indictment.
    4, -; instruction: Reasonable Doubt. In a prosecution for participating as an accessory before tbe fact in tbe crime of false registration, there is no error in the failure of tbe court to instruct tbe jury that they should acquit defendant unless they find beyond a reasonable doubt that tbe principal registered falsely. It was sufficient to instruct as to reasonable-doubt upon tbe whole case.

      Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    Aeeirmed.

      Henry Rowe and Thomas J. Rowe, Jr., for appellant.
    (1) The constitutive' facts of the registration ■of the principal are not alleged to have been done '“against the peace and dignity of the State.” In ■other words, the contention of defendant is that the allegations of the indictment are insufficient to charge the principal with the commission of a felony or any ■other offense; and if .the indictment thus fails to ■charge the commission of a felony by the principal it is only natural and logical to conclude that it could not, even by the grossest distortion of language, charge the defendant James Robinson as an accessory before the fact to a felony. (2) In instruction three the •court assumed and stated as a fact the commission of a felony by Percy Everson. The usual and essential ■conditional clause was conspicuous by its absence. The usurpation by this instruction of the legitimate functions of the jury is egregious error and warrants a reversal. State v. Dillihunty, 18 Mo. 331; State v. Hecox, 83 Mo. 531; State v. Marsh, 171 Mo. 523; State v. Bonner, 178 Mo. 424; State v. Allen, 94 Mo. 508. (3) The significance and effect of the phraseology, “without regard to the question of the probable guilt •or innocence of any other person of any crime,” as used in instruction 7, is to declare that the defendant James Robinson may,, to use a paradox, be guilty as an accessory to a felony although in fact no felony was committed. (4) The failure of the court to instruct the jury that they must believe beyond a reasonable doubt that a felony was committed by Percy Everson is reversible error.

      Elliott W. Major, Attorney-General, and John M, Atkinson, Assistant Attorney-General, for the State.
    (1) The indictment in this canse is sufficient in form and substance. Sec. 4441, R. S. 1909; State v. Keating, 223 Mo. 93; State v. Keating, 202 Mo. 197; State v. "Walsh, 203 Mo. 605; State v. Cummings, 206 Mo. 613; State v. Tiernan, 223 Mo. 147; State v. Clancy, 228 Mo. 476; State v. O’Brien, 228 Mo. 410; State v. Thavanot, 225 Mo. 545. The indictment is not subject to any of the defects pointed out in the cases of State v. Keating, 202 Mo. 197, and State v. Walsh, 203 Mo.. 605. (2) The proof shows that appellant was present, aiding, counseling, procuring and hiring the said Percy Everson to illegally register, as charged in the indictment. Appellant is, therefore, as guilty as the principal, Everson, and is, in fact, made so by statute. Sec. 4898, R. S. 1909; State v. Hickman, 95 Mo. 322; State v. Hermann, 117 Mo. 629; State v. Kennedy, 177 Mo. 119; State v. Sykes, 191 Mo. 78. (3) We have carefully examined the record and fail to find any prejudicial error in the rulings of the court as to-the admission or exclusion of evidence. The instructions given on the part of the State fully and fairly cover the law of the case and are free from any objections urged by appellant.
   ROY, C.

Defendant, with others, was indicted, as accessory before the fact to the crime of false registration alleged to have been committed by Percy Ever-son in the 6th precinct of the 3d ward in the city of' St. Louis, on February 18, 1909.

A severance was granted defendant and he was convicted and sentenced to five years in the penitentiary.

On the trial there was evidence that a general registration of voters was had in said city on the 18th day of February, 1909, and there was evidence tending to prove that Percy Everson procured himself to be illegally and fraudulently registered as a voter under two names on the same day in precinct number six of the third ward of said' city; and that he was counseled, advised and procured so to do by a gang of persons, including the defendant, who were engaged in furnishing names and addresses to persons whom they could procure to register thereunder.

Defendant testified on his own behalf, that he Lad no complicity in said transaction and did not in any manner counsel, aid, assist procure or command Percy Everson to procure a false and fraudulent registration, and had no knowledge of any such advice or assistance being given to him by others.

The “gang” consisted of about twenty-one persons, of whom six, including Percy Everson, testified in the case on behalf of the State.

The evidence that Everson falsely registered was overwhelming and uncontradicted. The defendant called no witness but himself. He did not attempt to show that Everson did not falsely register, but confined his efforts to an attempt to show that ho did not participate in the offense. The evidence tended to show that the “gang” were engaged in registering in as many different names and at as many different places as they dared.

During the examination of one of the judges of registration the following occurred:'

“Q. State to the court what he did and when he came in first? A. Well, the first time I don’t know what name he registered under; the second time he registered under the name of Percy Everson.
“Q. Did he give you any name the first time?
“Mr. Grernez: One minute. I object to what he did the first time as immaterial under this indictment.
“The Court: That is on the theory that the State cannot prove anything except the offense charged in the indictment.
“Mr. Gernez. Yes, yonr Honor, and we have come here to defend against this; the charge is he registered—
“Mr. Newcon: I think the evidence ought to he heard.
“The Court: The Supreme Court has held quite a number of times that a series of offenses committed about the same time can he introduced for two reasons : First, to show the intent of the act of the party himself, and second, when they are a part of a series of offenses against the law, as throwing light upon the transaction, on the case before the court. Of course, I will instruct the jury that you can only convict the defendant of the offense charged in this case.”

The following among other instructions were given:

“3. If you believe and find from all tie evidence in this case that on the 18th day of February, 1909, a general registration of electors and voters was held in the city of St. Louis and State of Missouri, and in every election precinct of said city, by the duly appointed and acting judges, clerks and officers of election and registration; that the sixth election precinct of the third ward of said city of St. Louis was then and there one of the election precincts of said city of St. Louis, and if you further find from all the evidence that on said 18th day of February, 1909, and while said registration of electors and voters was in progress and being held (if you find that said registration was held as aforesaid) that one Percy Everson did appear at the place of registration at number 1508 North 11th Street in said city in said sixth election precinct of the third ward of said city of St. Louis before the duly appointed and acting judges, clerks and officers of registration of said election precinct and wilfully, knowingly, fraudulently and falsely stated to said judges, clerks and officers of registration for said election precinct that his name was Percy Everson and that Ms residence was number 1012 Carr street in said city of St. Louis and that he was a resident of said precinct and had a right to register and vote in said precinct and wilfully, knowingly, fraudulently and falsely requested said judges, clerks and officers of registration of said election precinct to register him, the said Percy Everson, on the books of registration of said election precinct and to enter the residence of him, the said Percy Everson, as number 1012 Carr street in said election precinct, and as a resident and qualified voter and elector of said election precinct entitled to register and vote in said election precinct as Percy Everson and residing at number 1012 Carr street in said election precinct, and if you further find that the said judges, clerks and officers of registration did then and there enter the name of Percy Everson upon the official registers and books of registration of said election precinct as residing at number 1012 Carr street in said election precinct as a registered elector and voter of said precinct and that the said Percy Everson then and there wilfully, knowingly, fraudulently and falsely signed the said official registers and books of registration by writing therein the name of Percy Everson, and if you further find from the evidence that the said Percy Everson was not then and there residing at 1012 Carr street in said election precinct and that the said Percy Ever-son at the time he did the acts set out in this instruction (if you find that he did the acts as set out in this instruction) knew that he did not reside at number 1012 Car street in said election precinct and knew that he did not reside in said election precinct but resided at 1716. G-ay street in another precinct and ward in said city of St. Louis, then the said Percy Everson was guilty of a felony as charged in the indictment, to-wit: the felony of fraudulently, unlawfully, intentionally and falsely registering in an election precinct not having a lawful right to register therein, and wilfully and knowingly doing an unlawful act to secure registration for himself, and if you further find and believe from all the evidence in this case that the defendant James Robinson, acting alone or with other persons with a common intent and purpose, at the city of St. Louis and State of Missouri, on or about the 18th day of February, 1909, and within three years next before the finding of the indictment herein, and before the .commission of the said felony by the said Percy Everson of fraudulently, unlawfully, intentionally and falsely registering as hereinbefore defined, did unlawfully, intentionally and fraudulently, procure, aid, counsel, solicit or advise said Percy Ever-son to do and commit the said felony aforesaid of fraudulently, unlawfully, intentionally and falsely registering as defined herein, you will find him, the defendant James Robinson, guilty as charged in the indictment and assess his punishment 'at imprisonment in the penitentiary for a period or not less than two nor more than five years.
“And unless you so find the facts to be you will acquit the defendant.
“The terms ‘knowingly’ and ‘wilfully’ as used in these instructions mean intentionally, that is, not accidentally. ’ ’
“7. The jury are instructed that in making up your verdict it is your duty to consider exclusively the question of the guilt or innocence of this defendant under the evidence and the law as declared in these instructions, without regard to the question of the probable guilt or innocence of any other person of any crime,, except that you are required to consider the probability of the guilt of any witness testifying herein, as disclosed in evidence, of criminal connection with the offense charged, or his guilt of any other criminal offense, as tending to affect the credibility of such witness and the weight to be given to his testimony.”

I. The appellant contends that the third instruction assumes the commission of the felony of false registration by Percy Everson.

We do not think any such construction can be placed upon it. It is carefully drawn and tells the jury, in effect, that their inquiry is divided into the first and second parts. That the first part is to pass upon the question of the guilt of Everson, and if they find him not guilty, their work is practically over, except to put their finding in proper form and acquit the defendant. But if they find Everson guilty, then they shall proceed to determine what connection the ■defendant had with “said felony.”

The jury are supposed to understand that the existence of “said felony” is not determined until they themselves determine it. That is. the plain meaning of the instruction. To hold otherwise would be to hold that the words “if any”- must be written with disagreeable iteration all through the instructions.

In State v. Copeman, 186 Mo. 108, Judge Pox says (l. c. 120): “It is urged that the instruction which tells the jury that ‘the intent with which defendant’s act or acts were done is one of the facts for you to determine from all the evidence ih the case,’ is erroneous for the reason that it assumes that defendant did some act or acts.

“Instructions must be read together and this declaration against which the complaint is lodged follows the main instruction; in fact, it is but a part of it, and intended as explanatory of what must be found by the jury. First, the jury are told that they must find that defendant did certain acts before they will be . authorized in convicting him. Then follows the. declaration that the intent with which the acts were done ¡is a material fact which must be determined by the jury. The instructions, considered as a whole, do not assume the existence of . any material fact, but on-the contrary require the jury to find every essential element necessary to constitute the offense charged.”

In State v. Psycher, 179 Mo. 140 (l. c. 156), the following instruction was given: “The court instructs the jury that if you find and believe from the evidence that the deed read in evidence and described in the information, or any part thereof (not including the acknowledgment of the same), was falsely made and forged, with intent to cheat and defraud, as defined in other -instructions, and that the defendant had possession of the same in Saline county, Missouri, and that he made claim to the land described therein, or any part thereof, by virtue of and under said deed, then these facts constitute evidence that he committed the forgery of the same or caused the same to be forged, and that he committed said forgery in Saline county and State of Missouri, and unless he explains or accounts for his possession thereof, in a manner consistent with his innocence, then these facts are sufficient to warrant the jury in finding him guilty of forgery as charged in the information.”

In commenting on that instruction, Judge Fox says (l. c. 158): “The court in the instructions fairly and fully submitted the question as to whether or not the deed had been forged; this being done, we think it is a clear legal proposition, that if defendant had possession of the deed and was claiming under it, it constituted strong evidence of guilt, and unless explained upon some theory consistent with his innocence, authorized his conviction.”

In Gayle v. Mo. Car & Foundry Co., 177 Mo. 427 (l. c. 453), Judge Gantt says: “Instruction numbered 4 for plaintiff was assailed on the ground that it assumes facts not proven or which the jury alone could find. We think this contention is without merit because the whole question of damages is predicated upon the proposition “that if the jury find for the plaintiff they will assess his damages,” etc. To find for the plaintiff at all they were required to find that he had been struck by the moving car, and injured, and if so, then they would ‘ assess his damages in such sum as the jury believe from the evidence will compensate for all pain, suffering to body and mind caused plaintiff as the direct result' of the injury sustained by plaintiff, ’ etc. This was not an assumption of anything. They must first find his injury and then compensate him for it. Neither was there any assumption as to medical attendance.”

II. The correctness of instruction numbered 7 is challenged. It must, be frankly admitted that, standing by itself, it is subject to verbal criticism; but when we consider that there was testimony as to many offenses committed by witnesses for the State on that day, and as to 'defendant’s connection with them, and considering further that the court stated during the trial that it would give an instruction on the subject of other offenses, we are satisfied that said instruction was intended as a benefit to the defendant, and that it did not prejudice his case.

III. Appellant contends that the words “against the peace and dignity of the State” should appear in the indictment after the allegation of false registration by Everson and prior to the allegation as to defendant’s participation therein, as well as at the end of the indictment.

Quoting from his brief, counsel insists that without those words “the allegations of the indictment are insufficient to charge the principal with the commission of a felony or any other offense; and if the indictment thus fails to charge the commission of a felonly by the principal, it is only natural and logical to conclude that it would not, even by the grossest distortion of language, charge the defendant James Robinson as an accessory before the fact to a felony.”

In view of the fact that it is only by force of the Constitution that the antiquated phrase keeps its place at the end of the indictment or count, we can see no reason for enlarging the power of its uselessness, especially as we have not been shown any authority for it.

IY. We do not think there was error in the failure of the court to instruct the jury that they should acquit, unless they found beyond a reasonable doubt that Everson registered falsely. It was sufficient to instruct as to reasonable doubt upon the whole case. [State v. Good, 132 Mo. 114 (l. c. 126); State v. Wells, 111 Mo. 533.] The nature of this case does not take it out of the general rule.

There was no error in admission of evidence and we affirm the judgment.

Bond, G., dissents.

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


author: BOND, C.

text:
    J. W. MAYNOR et al. v. TYLER LAND & TIMBER COMPANY, Appellant.
    Division Two,
    July 15, 1911.
    1. SUIT TO QUIET TITLE: Title Necessary to Succeed. A suit to quiet title is a special statutory action to adjudge tbe respective “estate, title and interest” of several claimants to land. It is not necessary therein that plaintiff’s title be good against the world, but only against the defendant.
    2. -: Sheriff’s Deed: Presumptions. A recital from Carleton’s Abstracts of a sheriff’s deed which mentions no names of parties to the tax suit on which the sale was based (saying only “R. O. Maynor land”), can give rise to none of the statutory presumptions from sheriffs’ deeds as to the owners of the land or as to transfers of title.

      3. -: -: Parties. Defendant in a suit to quiet title to land recognized Richard O. Maynor as the common source of title, and claimed to have acquired that title by sale of the land for taxes in 1880. His only evidence to support this contention was an entry from Carleton’s Abstracts reciting a sheriff’s deed, dated March 10, 1880, to John W. King, — “R. O. Maynor land” — which mentioned no parties to the tax suit. R. O. Maynor died in 1876. Held, that defendant has deraigned no title from R. O. Maynor, the common source of title set up by the parties, and can have no affirmative relief.
    4. -: Next of Kin: Evidence. Plaintiffs in this suit to quiet title were the children and wife of the brother of R. O. Maynor, the common source of title. R. O. Maynor, his wife and two male children were dead without issue. A daughter survived them, and there was evidenc.e tending to show her disappearance for fourteen years and that no tidings of her or her marriage were received in answer to the inquiries of her family. Therefore, since there was no evidence that she was ever married or left any maternal relatives, the inference was admissible that these plaintiffs were part, if not all, of her next of kin and heirs. It is held that the decree may well go against defendant, who has shown no right or title to the land.
    Appeal from Pemiscot Circuit Court. — Eon. Henry G. Riley, Judge.
    Appirmed.

      Faris & Oliver for appellant.
    (1) (a) Plaintiffs had counted upon a fee simple estate, and they allege in their petition that they have such estate, Having so alleged they must prove this title or fail. Stewart v. Land Co., 200 Mo. 281; Phillips v. Trust Co., 214 Mo. 669. (b) There was no proof as to whether Richard Maynor died testate or intestate. But the presumption will, of course, prevail that he died intestate in the absence of proof. The law presumes that Richard had a father and a mother, or kindred in the ascending line. Samford v. Toolving, 15 La. 170;, Miller v. McElvee, 12 La. 476. The proof shows he had a sister and a brother-in-law — Otto Smith and Bettie. (c) The proof conclusively showed, for it is sworn to by plaintiff, Elizabeth Maynor, that Richard died leaving one daughter, Lovey Ann, and one son surviving Mm. Before these plaintiffs, who are collateral Mn, can inherit, they must show “that there are no persons in existence more nearly connected with decedent than themselves.” Chandler v. Bailey, 89 Mo. 641; Bates v. Shraeder, 13 Johns. 260; Anson v. Stein, 6 Iowa 150; Emerson v, "White, 29 N. IT. 482; Payne v. Payne, 29 Yt. 172; 4 Ency. of Ev. 577; Merrill v. Otis, 12 N. H. 466; Sldnner v. Fulton, 39 111. 484. It has been well said that “plaintiffs must remove every possibility of title in another before they can recover.” Bonning v. Griffin, 15 East 293. (d) If all of plaintiffs ’ testimony be regarded as competent and accepted at its full face value, it falls far short of showing'that plaintiffs are all of the heirs of Lovey Ann or of Richard O. Maynor. To hold that they are, and to hold that they are entitled to the whole of -the land in .controversy, as was done in this case, is but to guess away the property and rights of the defendant. Sarenson v. Sarenson, 94 N. W. 540; Univ. v. Harrison, 90 N„ C. 385. Besides, it is universally held that “when an alleged heir delays for a long time to assert a claim to decedent’s estate, the delay, if unexcused, casts a cloud in determining the heirship.” 4 Ency. of EvL 578; Bruce v. Patterson, 102 Iowa 184. 2. The plaintiffs have not-shown even the death of Lovey Arm. Under the facts detailed by plaintiffs, no presumption as to the death of Lovey Ann will obtain, whether she has been in Tennessee seven years or seventy-seven years. Doe v. Stackley, 6 Houst. 447; Martin v.. Royse, 21 Ky. L. R. 775; Burnett v. Castello, 15 S. D. 89; Ross v. Blount, 25 Tex. App. 344; Latham v. Tomb, 73 S. W. 1060; 4 Ency. of Ev. 44, 45. The law will not presume death if the circumstances permit of any reasonable inference of continued life. Winter v. K. of P., 96 Mo. App. 1. Not only must plaintiffs, kill off Lovey Ann, but they must kill off all of Lovey Ann’s kin on her mother’s side, even to the remotest; generation — back to Adam — before they can take tbe whole of this land.

      Duncan &■ Bragg and Shepard é Shepard for respondent.
    (1) Record title being shown in Richard O. May-nor, as well as a common source of title, the question there to be determined is, which of the parties litigant have made the best showing of interest in and to the land in question, for it is the right, title and interest of the parties plaintiff and defendant that the court is called to pass upon. Grraton v. Land Co., 189 Mo. 322; Felker v. Breece, 226 Mo. 320; Grage' v. .Cantwell, 191 Mo. 698. The whole question before the trial court, and of course before this court, was which of the parties to this cause of action showed the greater interest in the land in question. The trial court gave the matter due consideration and after fully considering the matter it decided that, as between the parties to this suit, the plaintiff showed the greater title, and rendered judgment accordingly, and we submit that appellant has shown no reason for the reversal of the finding of the court in this case. Should it be that the daughter, Lovey Ann, is living, or should it be that she has other relatives entitled to the land in question, or any part thereof, then such parties would have the right to assert their interest against plaintiff, but such' interest cannot be asserted by a stranger, and especially in this case when all the evidence and surrounding circumstances show these plaintiffs are the only heirs of Richard O. Maynor that can inherit this property, and a reversal of this judgment would be a gift by this court to the defendant. (2) The evidence in this case clearly shows that Lovey Ann, the only surviving member of Richard O. Maynor’s family, left Missouri more than fourteen years prior to the date of the trial of this cause, and had not been heard of since the date of her departure from the State except it was heard she had died in Tennessee. It is true this report is not shown to be made by a member of the family, bnt it is also shown that continnons and diligent inquiry was made for her, and no report beyond the report that she was dead could be had. This being the case, even was there no report of her death her long absence unheard of by those who were seeking to find her and had an interest in her whereabouts would raise the presumption of her- death. Chapman v. Kullman, 191 Mo. 237; Flood v. Growney, 126 Mo. 262; Gilroy v. Brady, 195 Mo. 205; Bradley v. M. W. A., 124 S. "W. 69. (3) The only evidence that Lovey Ann was ever married and had issue surviving her was the purely hearsay testimony of the witness Higgs, and it was entirely insufficient to justify the court in finding she was ever married. •
   BOND, C.

This action to quiet title to 160 acres of land was brought in the circuit court of Pemiscot county on the 12th of October, 1905.-

Plaintiff introduced in evidence certain entries contained in Carleton’s Abstract (Laws 1901, p. 251), showing the land sued for to be well vested, in 1858, in Richard O. Maynor, under patents from the United States and grants from the State of Missouri and Pemiscot county, Missouri. Plaintiff adduced evidence tending to show that Richard O. Maynor died in 1876, leaving a wife and female child, Lovey Ann, living at the time of his death, and another male child, born shortly after his death; that the posthumous child died during infancy; that the wife of Richard O. Maynor was also the mother of a boy, named Harvey L. Pinkston, born of a former marriage; that at the death of Richard O. Maynor, his daughter, Lovey Ann, was about five or six years old; that Harvey Pinkston, his stepson, was about fourteen years old, and was about eighteen years old when he was after-wards killed; that Richard O. Maynor’s wife died sometime after the death of her husband without having remarried; that his surviving daughter, Lovey Ann, went to Tennessee. As to wbat became of her thereafter was shown, as far as may be, by the testimony of Mrs. Elizabeth Maynor, the widow of Luke Maynor, who was a brother of Richard O. Maynor. She testified that on the day of the trial, to-wit, August, 1907, she had not been able to receive any tidings of Lovey Ann for fourteen years; that she had been told that Lovey Ann was dead; that she did not think Lovey Anri was married at the time of her death, but she could not answer as to that of her own knowledge. “Q. Where was she the last time you heard of her. A. She was over in Tennessee. I can’t tell you the exact place. I believe it was Big Sandy, Tennessee. I am not certain, but I believe it was. I as a member of the family have been making inquiry about her during the past fourteen years, from places I heard she formerly resided in Tennessee. I have not been able to find anything of her whereabouts at all. I haven’t heard any more of her from that time to this. . . . Q. After Lovey Ann Maynor left Dunklin county and went to Tennessee you have never been able to get any further tr-ace of her? A. No, sir.”

This witness further testified that she had been told by the person who informed her of Harvey Pinkston’s death that he had never been married.

Plaintiffs in this case are the widow and children of Luke Maynor, deceased, the brother of Richard O. Maynor, deceased.

The defendant corporation bases its title to the-land upon entry No. 18 from Carleton’s Abstract, to-wit: “Pemiscot county, relator, to John W. King,, sheriff’s deed, dated March 10, 1880, and filed and recorded July 10, 1880, Book ‘G,’ page 23. Consideration, $85. Acknowledgment regular. The above deed conveys the northeast quarter of section 20, township-16, range 12, east, containing 120 acres. (Note: Carleton’s Abstract says: ‘Sold by Benjamin P. Bancroft, sheriff.’ Also under column of remarks says: ‘R. O. Maynor land.’) ”

Defendant also showed other deeds following the above entry purporting to convey the property and ■ending with a deed to defendant on the 27th of May, 1905.

The court admitted these offerings over the objections and exceptions of the plaintiffs, except as to the above entry from Carleton’s Abstract referring to a sheriff’s deed, which it allowed to be read subject to plaintiff’s objection. The court rendered a decree quieting plaintiffs’ titles against the defendant, from which it appealed.

I. A suit to quiet title is a special statutory action to adjudge the respective “estate, title and interest” of several claimants to land. [R. S. 1909, sec. 2535; Gage v. Cantwell, 191 Mo. 698; Graton v. Lumber Co., 189 Mo. 322; Huff v. Land & Imp. Co., 157 Mo. 65.]

A fundamental difference between such action and one in ejectment is, that it is never necessary to the former that the title of the plaintiff should be good against the world but only against the defendant; while in ejectment (in the absence of common ancestor) plaintiff can only get possession by showing an estate in fee. [Felker v. Breece, 226 Mo. 320.]

In the case at bar the fee simple title to the lands was in Richard O. Maynor, and at his death, intestate, was cast upon his heirs-at-law. The defendant recognizes Richard O. Maynor as the common source of title, and claims to have acquired that title by sale of the land for taxes in 1880. The only evidence adduced by defendant to support this contention is “Entry No. 18 on Carleton’s Abstract of titles, reciting a sheriff’s deed, dated March 10, 1880, to John W. King R. O. Maynor land.” This recital of the abstract books affords no basis whatever for the statutory presumption based upon a sheriff’s deed to the purchaser at a tax sale. [E. S 1909, secs. 6346 and 11501.]

The presumption authorized by the terms of the first of the above sections of the statute is, “that the persons named in. the sheriff’s deed, as defendants in the suit” for taxes, were the owners of the land, and that this fact is prima facie shown by the sheriff’s deed, which second statute makes prima facie evidence of the transfer of the title of the defendants in the tax suit. [Powell v. Greenstreet, 95 Mo. 13; Cooper v. Gunter, 215 Mo. l. c. 565.]

In the abstract entry introduced by defendant in lieu of sheriff’s deed, there is no mention of any persons as parties to the tax suit. The only reference to any one is the statement in said entry, to-wit, “E. O. Maynor land.”

In this state of the record, and in view of the fact that E. O. Maynor had died in 1876 (wherefore if he were the only party mentioned in the sheriff’s deed as being defendant in the tax suit, it was void), it is plain that the entry in question affords no basis to support the presumption that the tax sale was valid or that the sheriff’s deed divested the heirs of J. O. Maynor of the estate left to them at his' death in 1876. We think no other conclusion can be drawn from the meager recitals of the abstract than that the-tax proceedings therein referred to and the sheriff’s-deed based thereon, were inoperative to vest any title in the grantee, for the reason that the owner of the land had died four years before, and there is no evidence whatever that his heirs were ever made parties to the cause. The result is that the defendant, has deraigned no title from E. O. Maynor, the common source of title set up by the parties to this cause. Clearly, therefore, defendant was not entitled to any affirmative relief in the trial court, and can have none-here.

II. The next question is, whether the plaintiffs have shown themselves entitled to relief claimed against defendant. As the record shows defendant acquired no title whatever to this land from R. O. Maynor, it is sufficient to show that the plaintiffs acquired some title from said Maynor in order to warrant a decree exempting that title from any attack by defendant. Under the testimony given for plaintiffs, there was inferential evidence which warranted the court in finding that the plaintiffs, who were the children and wife of the brother of Richard O. May-nor, upon his death and after the death of his wife and two male children without issue, were the next of kin of Lovey Ann, who survived her mother and brothers; and since there was evidence tending to show the disappearance of Lovey Ann for fourteen years, and no tidings of her or her marriage were received in answer to the inquiries of her family, and since there was no evidence that she was ever married or left any maternal relatives, the inference was •admissible that these plaintiffs were a part, if not all, of her next of kin and heirs. This was doubtless the view of the trial court. The decree of the court does not prejudice any possible heirs of Lovey Ann on her mother’s side since they are not parties to this cause, and the decree may well go against defendant who has shown no right or title to the land. As contrasted with the claim of defendant resting on no valid ground, plaintiffs have the better title, for, under the evidence, they are inferably entitled to some interest in the land. The defendant has none. The decree in this case only precludes the defendant. To that extent it is manifestly right, and is affirmed.

Roy, C., concurs.

PER CURIAM. — The foregoing report of the •commissioner is hereby adopted as the opinion of the •court.