text:
    GEORGE H. HUBBARD v. EMMA DAHLKE, Appellant.
    Division One,
    March 28, 1919.
    1. • QUIETING TITLE: Suit in Equity: Determined by Pleadings. Whether an action to ascertain and determine title to land is an action at law or a suit in equity may be determined by the pleadings, A plea that plaintiff in good conscience should be estopped from claiming title under his quit-claim deed, because he was at the time and had been the agent of defendant as to the land, carries the case to the equity side of the court.
    2. MORTGAGE: Foreclosure as to Makers: Record Owner Not Party. The foreclosure ■ of a mortgage by a proceeding in court against the mortgagors only, after they had sold the land by a deed recorded when the suit was brought, leaves the pure record title in such record owner or his grantees.

      3. -: Limitations: Foreclosure. All mortgages and deeds of trust executed after the Act of 1891 became effective are barred whenever the note or debt secured thereby is barred, and if so ■ barred cannot be foreclosed.
    4. -:-: Purchaser Subject to Mortgage: Possession. A purchaser from the mortgagor, subject to a mortgage, can invoke- the Statute of Limitations which prevents a proceeding to foreclose a mortgage if the note or debt is barred, whether he has or has not been in possession since his purchase. He has the same right to invoke the statute that the mortgagor -himself would have had there been no sale. '
    5. LIMITATIONS: Adverse Possession: Paying Taxes. A claim of ownership, paying taxes and attempts to sell wild land do not constitute such possession, after a futile attempt at foreclosure of a mortgage and a purchase thereat, as is sufficient to prevent the running of -the ten-year Statute of Limitations.
    6. PRINCIPAL AND AGENT: Purchase by Agent: Fiduciary Relation. Good conscience will not permit an agent to buy up an outstanding title as against his principal. Where the holder of a note in good faith bought at a void foreclosure sale, and thereafter plaintiff, at his own solicitation, became her agent to pay the taxes and to sell the land, and while acting as such agent discovered that she had no title and advised with her about perfecting the title and the sale of the land, a purchase by him inures to her benefit, and in a suit to quiet title the decree should vest the title in her upon condition that she pay him what he had expended in acquiring the out-standing title; and in such case the fact that-she failed to answer his letter, written a short time before he purchased, in which he asked her to name her price, did not change the fiduciary relation which had existed for years.
    Appeal from Morgan Circuit Court. — Hon. J. G. Slate, Judge.
    Reversed, {with directions.)

      A. L. Ross and H. G. Pope for appellant.
    (1) Plaintiff should not be beard to interpose tbe Statute of- Limitations as a bar to tbe relief prayed for by defendant in ber answer and cross .petition. If Seiffert bad been in possession at any time be was in no position to dispute tbe title of appellant, because he bought and took title subject to the encumbrance held by her. His claim of title was not hostile to that of appellant and never became hostile. Respondent stepped into Seiffert’s shoes, and cannot make any greater or more effective claim of title than Seiffert could make. Lewis v. Schwenn, 93 Mo. 26; Booker v. Armstrong, 93 Mo. 49; Eyerman v. Pyron, 151 Mo. 117; McMurray v. McMurray, 180 Mo. 527; Sauter v. Beveridge, 103 Mo. 615; State ex rel. v. Allen, 124 Mo. App. 465; Cobb v Houston, 117 Mo. App. 645; Chiles v. School District, 103 Mo. App. 240; Bensley v. Haeberle, '20 Mo. App. 648; Stayton v. Gras-tain, 221 Mo. 712; Chouteau v. Riddle, 110 Mo. 366'; Combs v. Goldsworthy, 109 Mo. 160; Benton v. Czarlinsky,. 101 Mo. 275. (2) Plaintiff was the agent for defendant in the sale of the land in controversy and for the payment of taxes thereon, and law and equity prohibit him from purchasing the property and taking title in his name, and by purchasing the property under such circumstances he made himself liable as trustee in relation thereto for the benefit of defendant, his principal, and he is estopped from acquiring title to said land. 31 Cyc. 1432, 1434; Grumley v. Webb, 44 Mo. 444; Cummings v. Parker, 250 Mo. 437; Meek v. Hurst, 223 Mo. 688; Corder v. O’Neill, 207 Mo. 647; Euneau v. Rieger, 105 Mo. 659, 673; Atlee v. Fink, 75 Mo. 104; McClure v. Ullman, 102 Mo. App. 703; Smith v. Tyler, 57' Mo. App.- 672; Dennison v Aldrich, 114 Mo. App. 708; Rogers v. Lockett, 28 Ark. 290; Hardenbergh v. Bacon, 33 Cal. 356; Ringo v. Binns, 10 Pet. 269; Cragin v. Powell, 128 U. S. 691; Essex Trust Co. v. Enwright, 47 L. R. A. (N. S.) 567; Hutton v. Sherrard, 1915 E. L. R. A. p. 976 foot-note; Witte v. Storm) 236 Mo. 470; Murdock v. Milner, 84 Mo. 96, 102; 1 Am. & Ency. Law (2 Ed.), p. 1085. (3) Defendant, by adverse possession for more than ten years, obtained title to said land, even though the foreclosure of the mortgage lien on the property was defective, and is entitled to have the title adjudged in her. Turner v. Hall, 60 Mo. 271: Bartlett v. 0 ’Donoghue, 72 Mo. 563; Leeper v. Baker, 68 Mo. 407; Shea v. Shea, 154 Mo. 600.
    Capron, Butcher & Knoop for respondent.
    (1) Actions to quiet title are actions at law and when tried before the conrt the court sits as a jury. Brandt v. Bente, 177 S. W. 377. (2) An action on the note secured by the mortgage sought to he foreclosed was long since barred by the Statute of Limitations, add by virtue of Sec. 1892 appellant’s action to foreclose the mortgage was also barred. Sec. 1892, R. S. 1909, Laws 1891, p. 184. (3) Since the enactment of said statute an action to foreclose a deed of trust is barred when an action on the note secured by the deed of trust is barred. Howe v. Erwin, 221 Mo. 101; Bumgard-ner v. Wealand, 197 Mo. 433; Higgins v. Harvester Co., 181 Mo. 310. (4) In the fourth count of appellant’s cross petition appellant attemps to plead an estoppel. Neither the allegations in the count, nor the evidence offered in support of it, are sufficient to estop respondent. Blodgett v. Perry, 97 Mo. 263; Weir v. Lumber Co., 186 Mo. 388. (5) The evidence in support of appellant’s claim of title by adverse possession is wholly' insufficient. Chilton v. Oomanianni, '221 Mo. 699; Nye v. Alfter, 127 Mo. 529.
   GRAVES, J.

Action to try title. Petition in the conventional form, including, however, the allegation that the land involved is in the possession of no person, and the further allegation that plaintiff is unable to describe the interest of defendant, because such interest is not known to plaintiff.

The answer plead (1) general denial; (2) by way of answer and cross-bill she avers that she held a mortgage deed given by A. F. & L. E. Kull on the land in 'dispute; that she employed reputable counsel to foreclose this mortgage by suit; that such counsel brought the suit against the two Kulls; that her said counsel bought in the land at special execution sale, under such judgment, and then conveyed to her, and she' asked for a new foreclosure of the mortgage deed; (3) this count likewise recounts the foregoing facts and others and asks for a foreclosure; (4) is a plea of estoppel in which it is averred that Hubbard was the agent of plaintiff and was thereby in equity estopped from acquiring an outstanding title against her, and (5) plea of ten-year Statute of Limitations.

The reply fully met the issues of the answer. The court declined to hear evidence on the second and third counts of the answer on the ground that the right to foreclose the mortgage had long since been barred.

On the other matters of defense the trial court found the facts against defendant, and found plaintiff to be the fee simple owner of the land. From such decree, defendant has appealed.

I. The whole trouble (for defendant) in this case arises out of the slip of her counsel in not making, the record owner of the land a party to the foreclosure proceeding. The parties at the trial made this admission:

“It was admitted by both parties to this action that the common source of title to the real property in controversy was A. F. Kull and L. E. Kull, his wife; that Kull and his wife executed a mortgage to the defendant, Emma Dahlke, said mortgage being dated November 7, 1893, and being given to secure a loan of $400 that they borrowed from said defendant, and due one year after date; that on April 23, 1895, A. F. Kull and L. E. Kull, his wife, conveyed by warranty deed the property in question to John D. Jackson, subject to said mortgage; that on May 13, 1895, said John D. Jackson and wife, Ada, conveyed by warranty deed said property to Jacob Bird, subject to said mortgage; that on November 19, 1895, said Jacob Bird, single, conveyed by warranty deed said property to Louis Seiffert, subject to said mortgage.”

Plaintiff then offered a quitclaim deed from Louis Seiffert and wife, Cassie, to himself, in consideration of the sum of fifty dollars. Defendant offered her petition and judgment in the. foreclosure proceeding, which shows that it was only foreclosed as to the two Nulls. This proceeding was after Seiffert became the record owner. From this foreclosure sale, thence forward defendant was claiming the land and paying .the taxes thereon, but as the land is wild, uncultivated land no one was in the actual possession thereof. We think it clear that the pure record title is in the plaintiff, so that unless defendant is aided by some one of her other defenses, she has lost rightfully on the trial below.- There is sufficient pleaded in the answer to carry the case.to the equity side of the court. This matter is determined by the pleadings. [Lee v. Conran, 213 Mo. 404; Brandt v. Bente, 177 S. W. 377.] Here we have a count charging that plaintiff in good conscience should be estopped from claiming title under his quitclaim deed, because he was and had been the agent of defendant as to these lands, and thereby, knew all the facts.

II. The note and mortgage were given in November, 1893. In 1891 the General Assembly passed an act of two sections. [Laws of 1891, p. 184.] Section 1 of that act is now Section 1892, Revised Statutes 1909, and reads:

“No suit, action or proceeding binder power of sale to foreclose any mortgage or deed of trust, executed hereafter to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the Statutes of Limitations of this State.”

Section 2 of the Act of 1891, mentioned, supra, seems to have served its purpose, and has been dropped from the statutes. However it read:

“Nor shall any suit be had or maintained to foreclose any such mortgage or deed of .trust heretofore executed, to secure any such, obligation after the expiration of two years after the passage of this act.”

It will he noted that Section 1 of the ‘Act of 1891 had reference to mortgages and deeds' of trust executed after the passage of the act. The note and mortgage here involved were executed after the passage of the Act of 1891, and fell within the purview of that law. So that when the note was barred under the law, the right to foreclose the mortgage was likewise barred. The futile attempt to foreclose would not change the situation. The trial court was right in holding that the two counts of the cross-bill asking a foreclosure could not be sustained. The right to foreclose was gone. [Stockton v. Teasdale, 212 Mo. 611; Hower v. Erwin, 221 Mo. 93: Bumgardner v. Wealand, 197 Mo. 433.] In other words, as to all mortgages and deeds of trust executed after the 'Act of 1891 became effective, the right to foreclose the mortgage or deed of trust was barred whenever the note secured thereby became barred.

III. Counsel for defendant seem to have a theory that, because Seiffert bought the land subject to the mortgage, he himself could, not invoke the Statute of Limitations as to the bringing of" a foreclosure suit. To be exact, here is their contention :

“Plaintiff should not be heard to interpose the Statute of Limitations as a bar to the relief prayed for by defendant in her answer and cross petition. If Seiffert had been in possession at any time he was in no' position to dispute the title of appellant because he bought and took title subject to the encumberance held by her. His claim of title was. not hostile to ‘that of appellant and never became hostile. Respondent stepped into his (Seiffert’s) shoes and cannot make any greater or more effective claim of title than Seiffert could make. ’ ’

When Seiffert bought, it is true that he only bought the equity of redemption formely owned by Hull. As a matter of fact no one has ever been in the possession of this land. The most that has been done since 1901, by any person, indicating a claim of possession, is, the payment of the táxes by defendant. But even if Seiffert had gone into possession, it would not have changed the situation under this statute, Section 1892, Revised Statutes 1909, first enacted in 1891. If the defendant permitted her note, signed by Kull and wife, to become valueless, by failing to bring action thereon within ten years from its maturity, as she did, then by Section 1892, supra, she was prohibited from bringing an action to foreclose the mortgage. There are no qualifications to this statute. The actual possession of Seiffert cuts no figure. He had the title, subject to the mortgage which secured the debt of Kull. If the defendant saw fit to let her right to bring a foreclosure suit lapse under the terms of this statute, and thereafter she had brought such a suit and made Seiffert, the owner of the equity of redemption, a party to such suit, Seiffert would, under this statute, have had the right to plead the fact that such suit (under this statute) was barred by the lapse of time. The statute was passed for this very purpose. Prior thereto the foreclosure action could have been brought within twenty years — a common law bar.

The statute has no refenence to a possessory action, but is one which bars the right to foreclose a mortgage lien. So that adverse possession is not really an issue under defendant’s two counts in which she asks to foreclose the mortgage.

What Seiffert could have done, the plaintiff could do in the present case, unless precluded on some other theory. So that under all theories advanced, we conclude the trial .court was right in denying the defendant the right to foreclose her mortgage.

IV. Nor is there substance in defendant’s plea of the ten-year Statute of Limitations. She was never in the possession of this land. True she claimed owner-slap after lier futile foreclosure m 1896, and nas paid taxes thereon, and nas attempted or tried to sell the land. This is the utmost of her evidence under this plea. This is not sufficient, and the trial court was right in his judgment on this count.

Y. However, with all that we have said above, the equities of this case are with this woman. The pleadings are.such as to make the case one of equitable jurisdiction, and whilst the trial court found against her upon that branch of her answer, we are authorized to review this evidence, and reach our own conclusions as to the facts. These facts may be briefly stated. B. R. Richardson, an attorney and abstracter of titles, brought the suit for foreclosure, which appears to have been futile. Defendant in good faith bought at the foreclosure sale and thought she procured title. We say she bought, because Mr. Richardson bought and took title, but, as he ought to have done, as her agent and attorney, he con veyed to her. In law she bought. Mr. Richardson died and the plaintiff Hubbard acquired his business. In going over the papers in Richardson’s office he found what is called a “Present Owners List” of property in Morgan- County. On that list he found the name of Mrs. Dahlke, showing- that Richardson had paid taxes for her. This was in -1901, and thereupon he Avrote defendant that he succeded to the business of Mr. Richardson, and would be glad to pay her taxes for her as Mr. Richardson had done. She sent him the money and he paid the taxes. Plaintiff admits writing for this business, but denies that he paid the taxes more than three or four times from 19-01 to 1915. Defendant says that he was her agent to pay taxes and to sell the land for her. She said she paid him for his service in paying taxes. That he (or his' firm, Hubbard & Kavanaugh) was her agent to sell this land is made clear by a letter of date May 28, 1901. In this letter, among other things, it is said:

It is impossible for us to close trade on your. 120 acres of land bere; tbe party after investigating is afraid of the title, and as Abstractors ourselves we have to admit that your title at present is very bad. However, we know of our own knowledge that you have a good title to an undivided one-half interest in the land, which came to you by J. P. Porth, only heir of Wm. Porth, dead. Now the other one-half interest stands in the name of Thos. B. and C. Y. Price, they obtained deed from John Logan’s'Admr. Now if you could get Q. C. Deed from them your title would then pass. The records show that the land was sold for taxes, however judgment was taken against Longan Long after his death, and judgment against dead man for taxes passes no title.

This letter shows that plaintiff was agent to sell in 1901, and defendant claims that he was such agent from thence forward, as well as her agent to pay taxes. This letter also shows that plaintiff was advising the defendant as to the perfection of her title. It likewise indicates that he acquired knowledge of her title whilst acting as her agent, and in a fiduciary capacity.

Now that plaintiff paid taxes for defendant in 1914 is shown hy the disinterested proof of the collector. Defendant says the agency, both for paying taxes and selling the property, continued from 1901 on, hut that many of her letters were lost in the noted flood in Kansas City, in 1903. What tax receipts she introduced bore evidence of the flood. They did not show that plaintiff always paid the taxes. But on July 19, 1915, is a letter from plaintiff personally which shows that he recognized his agency. The letter reads:

I wrote you last week in regard to a price on your land in this Morgan Co., Mo., but so far have not heard from you, please let me hear from you at once, I am expecting to make a trip over in that part of the County soon and if I have your price before I go I might be able to make sale of same. This land is quite a distance from here and I do not get over in that part of the County very often. Hoping to hear from you at once.-
I am very truly yours,
Geo. H. Hubbard.

Hubbard says he did not get a price on the land as requested on July 19, 1915, and for that reason bought the land himself from Seiffert. On August 25, 1915, he wrote Mr. Erhart, the Kansas City agent of the defendant, the following:

Versailles, Mo., Aug. 25th, ’15
Mr. F. P. Erhart,
Kansas City, Mo.
Dear Sir:—
I have bought 120 acres of land in this Co.’which Mrs. Emma Dahlke of your City thought she owned and have my deed of record and have taken possession of said land. I had consultation with Mr. A. A. Knoop, 628 Scarritt Bldg., K'an-sis City, Mo., in regard to the title to this land, and he was the one who told me that you attended to Emma Dahlke’s business. I suppose you understand the condition of this title. Mr. Knoop thought I ought to offer her something for a quitclaim deed and by bis advice will say that if she will make me a quitclaim deed to this land I will give her $100 in cash for same and will give her until Sept. 1st to accept this offer, if she desires to accept same she may make and execute the deed and send it to the First National Bank of Versailles for collection and I will attend to it at once.
Very truly yours,
Geo. H. Htjbbakd.

In other words up to July 19, 1915, the plaintiff recognized the defendant as the owner of the land and was trying,to sell it for her. Suddenly he concluded to pay $50 for the title, and disavow his principal. When all this evidence is considered, we think that in equity and good conscience, the plaintiff cannot claim this title. It is reasonably clear that he was the selling agent of defendant from 1901 on to 1915. He says almost as much. What he learned of the title was by reason of this agency. Good conscience will not permit an agent to buy up an outstanding title as against his principal, and assert it against the principal. Plaintiff’s only excuse for so doing is, that defendant did not answer his letter of July 19, 1915. Whether she did or did not may be debatable, but this does not go to the root of the matter. He waited only a short time and procured the adverse claim of title, as against his principal. This he secured for $50.

In onr judgment, the trial conrt should have held that, in equity, the title which Hubbard acquired from Seiffert was for the benefit of the defendant, and that he should have decreed title in defendant, upon the condition that she pay to Hubbard what he had been out in procuring the outstanding title. In other words, on the evidence, the trial court was in error in finding against the defendant upon the' question of agency between defendant and plaintiff. This result meets with the judgment of good conscience, and ought to be written into the law of this case.

Judgment reversed, with directions to enter up a decree for defendant, conditioned as aforesaid.

Blair, P. J., and Woodson, J., concur; Bond, C. J., concurs in paragraph 5 and result.


source: Caselaw Access Project

author: RAILEY, C.

license: Public Domain

text:
    L. HARRIS et al., Appellants, v. JAMES K. LANGFORD et al.
    Division One,
    March 28, 1919.
    1. PARTIES TO ACTION: Public Funds: Injunction: Taxpayers. A suit to cancel an agreement made by the county court by which the funds of a drainage district were to be deposited in a certain bank, on the ground that the court made said agreement without advertising for bids for the funds and that other solvent banks in the county were and are willing to pay a higher rate of interest on daily balances, and praying that the county treasurer be enjoined from depositing the funds in said bank, may be brought by resident tax-paying citizens of the district who sue for them- . selves and all other taxpayers similarly situated.
    2. DRAINAGE DISTRICT FUNDS: Depositary: Award Without Competitive Bids. Under the statutes it is the duty of the county court, in selecting a depositary for the funds of a drainage district organized by the county court, to give to banks and trust companies of Missouri the published notice for competitive bids required by Section 3803, Revised Statutes 1909; and an-agreement or order by the court directing the funds to be deposited in a certain bank, made without competitive bids or notice, is invalid.

      Appeal from Ripley Circuit Court . — Hon. J. P. Foard, Judge.
    Reversed AND REMANDED (with directions).

      Abington & Phillips for appellants.
    (1) It was the duty of the county court in awarding the custody of the $29,000 drainag’e district fund to select as its custodian the hanking- corporation, association or individual hanker whose hid would constitute the largest offer for the payment of interest for said fund. Laws 1915, p. 270, sec. 5607; Secs. 3805 et seq., Laws 1915, p. 249. (2) It was the duty of the county court in selecting a depositary for these funds to obey the mandatory provisions of the statute which provides that the funds of said drainage district shall he deposited at the highest obtainable interest in some bank or trust company of Missouri. Laws 1915, p. 271, sec. 5607; Denny v. Jefferson County, 272' Mo. 436 ; State ex rel. v. Bourne, 151 Mo. App. 194; State ex rel. v. LaEayette Co. Court, 41 Mo. 222; State ex rel. v. Public Schools, 134 Mo. 306; State ex rel. v. Adcock, 206' Mo. 556. (3) The county court in handling the affairs and finances of the county cannot be governed by mere whim or caprice; to the • contrary thereof, they act in handling the affairs of the county as trustees of an express trust ; their duties are defined by law, which they should follow in performing their official acts. Denny v. Jefferson County, 199 S. W. 250; 39 Cyc. 393; Axman v. Smith, 156 Mo. 290. (4) The county court in selecting a depositary for the other funds of the county is required to obtain the highest rate of interest possible on daily balances. The statute provides just how the court shall proceed in its effort to obtain the highest rate of interest possible for the deposit of county funds. R. S. 1909, secs. 3803, 3804; Laws 1915, p. 249, sec. 3805. (5) The undisputed evidence is that if the county court in the instant case had accepted bids for the custody of this fund, it would have received a higher rate of interest than what it did get by arbitrarily awarding the custody of the funds to the Doniphan State Bank. This being true, it was the duty of the trial court to set the judgment of the county court aside and its failure to do so is error. Laws 1915, p. 271.

      Chas. B. Butler for respondents.
    (1) The county court is presumed to have done its duty in awarding the funds, and the burden of proving otherwise rests upon plaintiffs and has not been done in this case. State ex rel. v. Flemming, 147 Mo. 10; Martin v. Stoller, Í07 Mo. 317; State ex rel. v. Port, 180. Mo. 108. (2) The court must under the statutes exercise its reasonable discretionary powers. It did exercise a reasonable discretion and secured more than the market value in interest for these funds at the time they were let. State ex rel. v. Fort, ’ 180 Mo. 108; State ex rel. v. Hawkins, 130 Mo. App. 41. (3) The courts will not direct inferior courts how to exercise their discretion or what judgment to render, when they are vested by law with discretionary powers, and will not disturb their findings unless gross abuse is apparent. Regan v. Iron Co., 226 Mo. 79; Barrett v. Stoddard Co., 246 Mo. 510; State ex rel. v. Township Board, 188 Mo. App. 266; State ex rel. v. Dreyers, 183 Mo. App.( 486; Denny v. Jefferson County, 272 Mo. 436. (4) The demurrer to the petition should have been sustained. The petition shows on its face that the contract made by the court.was not a county contract and such as could be inquired into by the circuit court upon the petition of fifty resident taxpaying citizens of the county. Sec. 3729, R. S. 1909. (5) The county court were duly- authorized in any way they saw fit to select a depositary. They did not have to give notice and receive sealed bids. The only thing they were required to do was to obtain tbe highest obtainable interest for these funds. Sec. 5607, p. 270, Laws 1915.
   RAILEY, C.

On May 18, 1916', a petition was filed in the circuit court of Ripley County, Missouri, by more than fifty individuals, as plaintiffs, claiming to be resident, solvent and responsible tax-paying citizens of Drainage District Number 3, in Ripley County aforesaid, against defendants Langford, Harper and Clore, as justices of the county court of said conty, defendant McClain, as treasurer of said county, and defendant Doniphan State Bank, a Missouri corporation doing a banking business in said county. The petition charges the members of the county court aforesaid with making an illegal agreement with the Doniphan State Bank, on May 2, 1916, by the terms of which $29,000, realized from the sale of bonds belonging to Drainage District No. 3 in said county, was to be deposited with said Doniphan State Bank, in consideration of four per cent to be paid by said bank on daily balances, payable monthly.

The petition further alleges that said county court, by an order entered of record, directed McClain, as treasurer of said county, to turn over the proceeds of the sale of said bonds to said bank, and unless restrained from so doing he will turn over the same to said Doni-phan State Bank.

It is further averred that there was, on the above dates, three other equally solvent and available banking corporations in said county; that said court, in violation of its duty, neglected and refused to advertise for bids for said funds; that it refused and neglected to take any other steps to secure,' for the use and custody of said funds, the highest amount obtainable on daily balances, payable monthly, but upon the contrary, wrongfully, illegally and in violation of the interests of said drainage district and the taxpayers therein, selected said Doniphan State Bank as depositary for said fund; that there were other solvent banks, in said county, who could and would have, had they been offered an opportunity so to do, hid a higher per cent on daily balances, payable monthly, than that agreed to he paid by said Doniphan State Bank; that if offered an opportunity they will yet do so, etc.

The petition prays for a cancellation of said agreement or contract; that McClain, as treasurer, he enjoined from disposing of said funds, until the termination of this action; that the county court aforesaid he ordered to advertise for bids for the custody of the funds aforesaid, and that it he ordered to award said funds to the highest and best bidder in the manner directed by law and for general relief.

The petition was sworn to by plaintiff, L. Harris, in behalf of himself and co-plaintiffs.

Defendant McClain filed a separate answer, and after admitting most of the allegations in the petition to be true, denied that he will comply with the order of the county court aforesaid, or that he was about to do so. He alleges that he has complied with the law in selecting the Ripley County Bank — a Missouri Corporation located in said county — which is the present depositary of the funds of said county, as the depositary of the funds of said Drainage District No. 3; that h.e did so, because the Ripley County Bank offered to pay four and a half per centum on daily balances of said fund, whereas the Doniphan State Bank offered to pay only four per centum on daily balances of said fund. He prays for an order directing him to turn «over said funds to said Ripley County Bank, etc.

The Doniphan State Bank filed its separate answer, admitting therein its incorporation; that Langford, Harper and Glore are county judges, as alleged; that McClain is county treasurer and ex-officio treasurer of said Drainage District No. 3. It denies every other allegation in the petition. It further alleges that on May 2, 1916, the county court aforesaid selected it as the depositary for said drainage fund; that it secured said fund by a surety bond, duly approved by the county court; that thereafter said McClain, as treasurer, etc., wilfully and unlawfully refused, and still refuses to permit it to have the custody of said funds; that said treasurer deposited said 'funds in a St. Louis bank, which gave no bond to secure the same. It alleges that the bonds, funds and taxes referred to in the petition belong to Drainage District No. 3, and not to Ripley County; that the persons named as plaintiffs have no interest therein; that they are not resident, solvent and responsible tax-paying citizens of Ripley County, and of Drainage District No. 3, within the meaning of Section 3729, Revised Statutes 1909; that the contract does not affect Ripley County, but only concerns the Drainage District aforesaid. It further denies any bad faith upon its part.

Defendants Langford and Harper filed their separate answer and admitted therein the incorporation of the bank; that they, with Clore, constituted the county court; that McClain was treasurer of the county, etc. They denied every other allegation of the petition. They further allege that they selected the Doniphan. State Bank for the depositary of the $29,000 aforesaid, as well as the táxes, sinking and interest funds hereafter to be collected by said drainage district; that they secured said funds by a surety bond, signed by a surety company, admitted to do business in Missouri; that said bond was duly approved by the county court aforesaid. They allege that they acted in good faith in respect to said matter; that McClain, as treasurer aforesaid, unlawfully and in disregard of his official duty, refused to deposit said funds with the Doniphan State Bank, or permit it to have the custody thereof, but deposited same with a bank in St. Louis, Missouri, without any bond to secure the same. The remainder of the answer is similar to that of defendant bank heretofore mentioned. They claim to have acted in good faith and ask to be discharged.

Defendant Clore filed a separate answer admitting that plaintiffs are tax-paying citizens of Ripley County, Missouri, and that some of them reside in said Drainage District No. 3. He admits that McClain is treasurer of said county; that defendants Langford and Harper are judges of the county court, and that the defendant hank is a Misssouri corporation. He admits that on May 2, 1916, the county court aforesaid entered into a contract with defendant hank, by which said bank was selected as the depositary of the drainage funds aforesaid, at the sum of four per cent on daily balances, and that defendant bank was selected without any competitive bidding and against his protest, and contrary to his demand that competitive bids be asked for and received in said matter.

The evidence in the case will be considered in the opinion.

On July 1, 1916, the trial court found the issues in favor of defendants, and entered a judgment accordingly, dismissing plaintiffs’ bill, etc. Plaintiffs,- in due time,’ filed their motions for a new trial and in arrest of judgment. Both motions were overruled and the cause duly appealed by them to this court.

I. The evidence clearly shows that some of the plaintiffs, at least, are resident tax-paying citizens of Drainage District No. 3, in Ripley County, Missouri. They are prosecuting this action in behalf of themselves, as well as all other taxpayers of said district similarly interested and, in our opinion, have the legal, right to do so. [Newmeyer v. Railroad Co., 52 Mo. l. c. 88-9; Dennison v. City of Kansas, 95 Mo. l. c. 429-30; Lilly v. Tobbein, 103 Mo. l. c. 488-9; State ex rel. v. Woodside, 254 Mo. l. c. 586-595; State ex rel. v. Harris, 176 S. W. l. c. 10; Tucker v. Wadlow, 184 S. W. l. c. 71; Webb v. Cope, 192 S. W. l. c. 935; 1 Spelling on Injunctions & Other Extraordinary Remedies (2 Ed.), sec. 678; 1 High on Injunctions (4 Ed.), sec. 372-574.]

II. Did the county court of Ripley County comply with the laws of this State, in appointing the Doniphan State Bank as the depositary of the $29,000' of drainage funds belonging to Drainage District No. 3 in controversy here?

Section 3803, Revised Statutes 1909, relating to county depositaries, reads as follows: “It shall he the duty of the county court of each county in this State, at the May term thereof, in the year 1909, and every two years thereafter, to receive proposals from banking-corporations, associations or individual hankers in such county as may desire to he selected as the depositaries of the funds of said county. For the purpose of letting-such funds such county court shall, by order of'record, divide said funds into not less than two nor more than ten equal parts, and the bids herein provided for may be for one or more of such parts. Notice that such bids will be received shall be published by the clerk of said court twenty days before the commencement of said term in some newspaper published in said county, and if no newspaper be published therein, then such notice shall be published at the door of the courthouse of said county:” etc.

Section 3804, Revised Statutes 1909, provides, that: “Any banking corporation, association or individual banker in said county desiring to bid shall deliver to the clerk of said court, on or before the first day of the term of said court at which the selection of depositaries is to be made, a sealed’ proposal, stating the rate of interest that said banking corporation, association or individual banker offers to pay on the funds of the county for the term of two years next ensuing the date of said bid, or, in the event that said selection shall be made for a less term than two years, as hereinafter provided, then for the time between the date of said bid and the next regular time for the selection of depositaries as fixed by the last proceeding- section, and stating also the number of parts of said funds for which such banking corporation, association or individual banker desires to bid. Each of said bids shall be accompained by a certified check for not less than such proportion of one and one-half per centum of the county revenue of the proceeding- year as the sum of the part or parts of said funds bid for bears to the whole number of said parts, as a guaranty of good faith on the part of the bidder, that if his bid should be the highest he will enter into the bond hereinafter provided. .Upon his failure to give the bond required by law, the amount of said certified check shall go to the county as liquidated damages, and the court may order the county clerk to- readvertise for bids. It shall be a misdemeanor, and punishable as such, for the clerk of said court, or any deputy, of such clerk, to directly or indirectly disclose the amount of any bid before the selection of said de-positaries.”

This section clearly points out the procedure for bidders desiring to handle county funds.

Section 3805, Revised Statutes 1909, was repealed in 1915, and a new section of the same number enacted in lieu thereof (Laws 1915, p. 249 et seq., approval March 23, 1915), which reads as follows: “It shall be the duty of the county court, at noon on the first day of the May term in 1915, and eyery two years thereafter, to publicly open said bids, and cause each bid to be en-, tered upon the records of the court, and to select as the depositaries of all the public funds of every kind and description going into the hands of the county treasurer, and also all the public funds of every kind and description going into the hands of the ex-officio collector in counties under township organization;' the deposit of which is not otherwise provided for by law, the banking corporations, associations or individual bankers whose bids respectively made for one or more of said parts of said funds shall' in the aggregate constitute the largest offer for the payment of interest per annum for said funds: Provided, that the court shall have the right to reject any and all bids. The interest upon each fund shall be computed upon the daily balances with the depositary, and shall be payable to the county treasurer monthly, who shall place the interest on the school funds to the credit of those funds respectively, and the interest on all other funds to the credit of the road and bridge fund. The county clerk shall, in opening the bids, return the certified checks deposited with him to the banks whose bids were rejected,, and on approval of the bonds of the successful bidder or bidders return the certified check or checks respectively to the bank or banks whose bid or bids are accepted.”

Section 5607 of Article 4 of Chapter 41, Revised Statutes 1909, relating to drainage districts organized by county courts, was repealed in 1915, and a new section of the same number enacted in lieu thereof (Laws 1915, p. 270 et seq., approved March 23, 1915)., which reads as follows: “Whenever there shall be in the treasury any money belonging to any drainage district set apart as a sinking fund for payment of bonds that will not mature and become payable under twelve months’ time from the time of accumulation of such funds, the county court wherein such district is located shall, if possible, loan the same for the highest obtainable interest, which rate shall not be less than sis per cent per annum, and shall cause the same to be secured by mortgage or deed of trust on real estate, free from all liens and encumbrances, within the county, of the value of double the amount of the loan; any other funds, consisting of sinking funds that will be used within twelve months to pay bonds, and other sinking funds that for any cause have not been loaned as previously provided for in this section, interest, maintenance and other funds of said drainage district shall be deposited at the highest obtainable interest in some bank or trust company of Missouri, where a separate account of each district shall be kept, and all interest that may accrue, from said fund shall be credited to the district: Provided, that all such loans shall be made and bank or trust company as depositories selected by the county court of the county in which said district is situated; and provided further, that the funds so deposited shall be secured by a surety bond signed by a surety company admitted to do business in the State of Missouri, which bond shall be approved by the county court, of by a personal bond with such sureties as shall be approved by the county court. In the event that the bond of a surety company is furnished, the expense of the.same may be paid by the drainage- district. ’ ’

The section just quoted requires that the funds .mentioned therein shall he deposited in some hank or trust' company of Missouri, and the interest thereon credited to- the drainage district, while Section 3803, Revised Statutes 1909, contemplates that bids shall be received from banks, associations, etc.-, of the county, and Section 3805, as amended by the Laws of 1915, pages 249 and following, provides that the interest collected by the county treasurer belonging to the school funds shall be placed to the credit of those funds, ‘‘ and the interest on all other funds to the credit of the road and bridge fund.” These differences can be obviated by the county court accepting bids from any bank in the. State for drainage funds, while confining other bids to banks, etc., in the county; and by having the county treasurer place the interest collected on drainage bonds to the credit of the drainage district, while the other interest collected shall be credited as indicated in Section 3805, as amended by the Act of 1915, Laws 1915, page 249.

Taking the sections of our statute heretofore quoted as a whole, they are all consistent with the idea that the lawmaking power of our State contemplated that the county courts, in loaning- public funds for the purpose of obtaining- the highest rate of interest on daily balances, etc., should publish the notice above mentioned and receive from said banks, sealed bids, etc., as required by the foregoing law. The General Assembly, in its wisdom, has apparently worked out a satisfactory plan for dealing- with the above questions, and has endeavored to place the county courts under legal obligations to follow the requirements of said laws. We find nothing in Section 5607, as amended in the Act of 1915, Laws 1915, pages 270 and following, which can he construed as exempting the county court from following the general law supra, in regard to giving notice, receiving sealed bids, etc. It will he observed that the county courts, may, for good cause, in the exercise of a sound judicial discretion, refuse to accept any bid made.

Turning to the facts in the case, we find that the county court, on April 15, 1916, by its order entered of record, directed the county clerk to give notice, by letter, to each of the banks in Ripley County, Missouri, that at noon, on Saturday the 22nd day of April, 1916, at the office of the county clerk, at the courthouse in Doniphan, the court would receive sealed bids for the deposit of the funds of Drainage District No. 3, in Ripley County, Missouri, from any of such banks as might desire to be selected as the depositary for said funds, etc. In other words, the county court attempted to follow the general law, heretofore mentioned, in respect to the selection of depositaries for county funds.

Mr. Kennon, the county clerk, testified that in compliance with above order he duly notified the banks of said county on April 15, 1916'. On April 22', 1916, the county court, by an order entered of record, revoked the above order of April 15, 1916, and recited therein that no bids or proposals for the deposit of said funds should be received at that time. The clerk notified said banks of the above order of the county court revoking the order of April 15, 1916.

On May 2, 1916, without any other notice having been given to the banks, the county court, through its order, entered of record, selected the defendant, Doniphan State Bank, as depositary for all funds of Drainage District No. 3, in Ripley County, for a term commencing on the first day of May Term, 1917, of said county court. By the terms of the contract made between defendant bank and the county court, the bank was to pay interest on the funds aforesaid, on daily balances, monthly, and was to execute a surety bond, of some surety company, authorized to do business in this State, to be approved by the county court.

It appears that Judge Glore, of the county court, was not in favor of making the contract without competitive bids. It also appears from the evidence that the county court was advised by .the prosecuting attorney and the attorney of said Drainage District No. 3, before making said contract, that the depositary should be selected after notice had been given to the banks and competitive bids received.

The evidence tends to show that defendant bank was the only one prepared to bid on the day the contract was made. It also tends to show that a higher rate of interest might have been obtained if the notice required by law had been given, and competitive bids received from the banks of the county.

There is testimony in the record before us tending to show that the defendant bank was to pay the highest rate of - interest obtainable for the use of said funds. According to our conception of the law, however, it becomes our duty to determine whether a contract, based upon the facts before us, can stand the test of judicial criticism, regardless of the benefit which might accrue to the Drainage District obtained in violation of the law. It is not our province to inquire into the motives which actuated the members of the General Assembly in passing the foregoing laws. It becomes our duty to construe the latter as we find them, and to enforce the same as written. We accordingly hold that it is the duty of the county courts of our State, in selecting depositaries for drainage funds, to give the statutory notice to the banks mentioned, and to dispose of the competitive bids of such banks as the provisions of law, heretofore mentioned, require.

While the trial court criticised the county court for failing to provide for competitive bidding, it affirmed its action, on the ground, that no loss had been sustained by the drainage district. The proceedings of the county court, in respect to the matters under consideration, are antagonistic to onr views of tlie law, as heretofore expressed, and should not he permitted to stand. "We accordingly reverse and remand the cause to the circuit court of Ripley County, Missouri, with directions to set aside the judgment rendered by it; to re-instate the case, and proceed with same, in accordance with the views heretofore expressed.

Brown, G., concurs.

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

All the judges concur; Graves, J., in the result; Bond, J., not sitting.


author: BLAIR, P. J.

text:
    W. C. KEATON, Appellant, v. PAUL HAMILTON et al.
    Division One,
    March 28, 1919.
    1. CONVEYANCES: By Stoddard County: Land in New Madrid County. In 1869 Stoddard County had power to convey county land in Section 20, Township 24, Range 11 lying west of Little River, which now lies in New Madrid County.
    2. -:-:-: Patent from New Madrid County. A patent from New Madrid County dated 1899, granting land lying in that part of Section 20, Township 24, Range 11 that is situate west of Little River, and which had in 1869 been granted by Stoddard County to a private person, conveyed no title to the patentee.
    3. JUDGMENT FOR TAXES: Deceased Defendant. A judgment against one who died before verdict is void.
    4. LIMITATIONS: Adverse Possession: Broken. To establish title by- adverse possession under color of title, the claimant and those under whom he claims must be in continuous possession for ten years.
    5. -: Claim of Ownership: Mere Occupancy. A mere occupancy of a shack on the land by trappers, under no claim for themselves or defendants, without the payment of rent or demand for any until less than one year before they left, the property, did not satisfy the thirty-one-year statute.

      6. - — : Under Color of Title: Possession of Part: Acts of Ownership. The inclosure and cultivation of a part of a tract of wild land under color of title to the whole and the possession of. the whole for four or five years, cutting of logs to huild a house, and of posts, rails and fire wood, the cutting of timber from the whole and selling it, the payment of taxes and the building of a levee which protected the land, were acts of ownership, and present a question of fact whether they satisfied the requirements of Section 1832, Revised Statutes 1909, declaring that possession, under color of title, of a part of a tract, in the name of the whole, and exercising during such possession the usual acts of ownership, shall be deemed possession of the whole.
    7. -: -: -: Size of Part Occupied. Even if the rule that possession of a part under color of title draws to it possession of the whole “is subject to the proviso that the premises described in the conveyance consist of a single tract of a proper size to be managed and used as one body according to the usual manner of business of the county” and such proviso were the settled law of this State, it could not be applied to overcome a judgment where the descriptions in the conveyances abstracted for the appeal are not set out in Tiaec verba, and the record fails to show the number of acres in either of the two fractional sections mentioned in the conveyances before the trial court, or the number of acres fenced and in possession.
    8. -: Thiry-Year Statute: Payment of Taxes. Where neither the owner of the paper title nor any one under whom he claims has ever been in possession of land patented in 1869, and there is ample evidence, that neither he nor any one under whom he claims or might claim has paid any taxes in more than forty years, and further ample evidence tending to show that the defendants have been in possession of a part of the tract, under color of title, claiming title to the whole and exercising acts of ownership for five years, a judgment for defendants under the • thirty-one-year Statute of Limitations will not be disturbed on appeal.
    9. -: -: -:' Land Not Assessed for Taxes. The fact that the land was not assessed for taxes for a number of years does not affect the right of one in possession under claim of ownership to claim title under the thirty-one-year Statute of Limitations.
    Appeal from New Madrid Circuit Court. — Hon. Frank Kelly, Judge.
    Affirmed.

      Brewer & Riley for appellant.
    (1) The land in question was in Stoddard County-on May 1, 1869, and the commissioner’s deed to Starrs conveyed the land to him Keaton v. Hamilton, 264 Mo. 574. (2) The judgment under which the land Ayas sold for taxes in 1894 is void for the reason that William Burns, the defendant in said suit, died on December 3, 1893, and the first insertion of the order of publication containing the correct description of the land was not had until the 16th dayi of December, 1893. Kellogg v. Moore, 196 S. W. 15; State ex rel. v. Riley, 219 Mo. 685; Black on Judg. (2 Ed.) sec. 200. (3) The possession -of Section 19- by the defendants under a deed including Section 20 is not such possession of Section 20 as put into effect the Statute of Limitations as to Section 20. Hickman v. Link, 97 Mo. 489; Schult v. Lindel!, 30 Mo. 319; Keaton v. Hamilton, 264 Mo. 579; Turner v. Stevenson, 72 Mich. 409, 411; Tiedeman on Real Property, sec. 696; 3 Washburn on Real Property (3 Ed.), sec. 36, p. 137. (4) The possession of a small strip of .land on the west edge of the land in question under a fence around Section 19 is not such possession of the rest of Section 20 as would invoke the Statute of Limitations. Herbst v.' Merrifield, 133 Mo. 271; Musick v. Barney, 49 Mo. 463. (5) The proof is insufficient to support a finding that defendants were in the possession of the little house on Section 20 for one year, for, as the judgment sought to take the title from the plaintiff, the owner, and vest it in the defendants, the proof required by the thirty-year Statute of Limitations should be clearly made. Shumate v. Snyder, 140 Mo. 88; 2 Corpus Juris, p. 58, sec. 10. (6) The proof is insufficient to show that the plaintiff or those under whom he claims had not paid any taxes on the land in question for thirty-one years next before the filing of the petition in this cause. Brannock v. McHenry, 252 Mo. 9; Weir v. Lumber Co., 186 Mo. 388. (7) The failure of the tax books examined by tbe witnesses Smith and Mitchell to show that the taxes were paid is no evidence of the non-payment of the taxes. Lewis v. Barnes, 199 S. W. 219.

      Broton & GalUvcm for respondent.
   BLAIR, P. J.

Keaton appeals from an adverse judgment in a suit he brought nnder Section 2'535, Revised Statutes 1909, to quiet title to that part of Section 20, Township 24, Range 13 lying west of Little River. The answer avers respondents own the land, pleads the ten and thirty-one year Statutes of Limitation and laches, and prays to have the title quieted. The judgment quiets the title in respondents.

The question presented is whether there is substantial evidence warranting a finding for respondents. The land involved was patented to the State under the Swamp Land Act of September 28, 1850, and passed to Stoddard County under the act of the General Assembly of 1851. The abstract shows Stoddard County conveyed to Starrs May 1, 1869, and the record title passed by mesne conveyances to appellant, who., in 1909, bought from the heirs of Burns, who acquired title in 1870 and died in 1893.

Respondents introduced in evidence a patent by the State to New Madrid County, dated 1875; patent from New Madrid County to Himmelberger, dated 1899, and deeds whereby Himmelberger’s title, if any, to- the land in suit and the east fractional half of Section 19, Township 24, Range 13, passed to respondents in the proportions set forth in the judgment. Respondents also offered in evidence a sheriff’s deed under sale for taxes of 1888, 1889, 1890, 1891 and 1892. The petition in the tax suit was filed and order of publication made November 22, 1893, against Burns, through whom appellant claims. It appears that Burns died December 16, 1893. There is evidence that the first two or three publications of the order described the wrong land, and that the order itself originally called for the wrong township, hut that there had been an erasure and correction. The judgment description was not free "from suspicion. Counsel for respondents did not claim the tax deed was. valid, hut stated it was offered “for the purpose of showing good faith . . . and as color of title.”

In 1898 William Crumpecker, a tenant of respondents’ grantors, cleared and fenced a tract of twenty or thirty acres on the east side of the east fractional half of Section 19 and occupied and cultivated it during 1898 and 1899. This inclosure included a small strip of the land in suit. Other tenants occupied this parcel and cultivated' it, or most of it, until 1903. Between 1903 and 1907 it does not appear that any one was in the actual occupancy of the inclosure. In 1907 another tenant went into possession and was followed by Isaac Tippy. In 1907 two boys named Robinson built a small house or “shack” on Section 20 and occupied it for a time not very. definitely shown. They-were trappers and did not occupy as tenants except for one month, February, 1908.

Besides inclosing and clearing the tract above mentioned, Crumpecker cut from the land in suit rails, posts and fire wood and logs, out of which he built the house he erected on the clearing, and respondents’ grantors sold off all the timber on the land in suit and the east fractional' half of Section 19. Some drainage ditches were dug and a levee repaired (by respondents’ grantors) which protected the land in suit. From 1894 down to the trial those under whom respondents claim paid all the taxes, and those under whom appellant claims paid no.taxes. There was other testimony concerning the non-payment of taxes prior to 1894.

I. The land in dispute was in Stoddard County In 1869, and that county had the power to convey. The change of boundary whereby the land became a part of New Madrid County did nob occur until 1872. This court has so decided with respect to land in the same situation. [Keaton v. Hamilton, 264 Mo. 564.] The record shows a deed from Stoddard County, by special commissioner, Alfred Eltzroth, to Starrs in 1869. Appellant’s record title from Starts seems not to have been attacked in the trial court and is not assailed here.

II. Respondents offered a patent from the State to New Madrid County, dated in 1875, and certain proceedings of the county court between December, 1888, and May, 1899, and a patent from the county to Himmelberger in the last; mentioned year. Hamilton, Wiles and Richard, by mesne conveyances, acquired the Himmelberger claim. So far as this record is concerned, it may be conceded Himmelberger got no title to any part of Section 20 by the patent of 1899, since that section west of Little River had passed into private ownership in 1869, and New Madrid County had no title to convey.

III. The tax deed of 1894 was offered solely as color of title. Respondents did not offer it as conveying any title to their grantors. Under a recent decision, a judgment against one who dies before verdict is void. [Cole v. Parker-Washington Co., 276 Mo. 220.]

IV. There is no substantial evidence that there' was any actual possession of any of the land in either Section 20 or Section 19 for ten consecutive years. Crumpecker was in possession of part of Section 39 and part of Section 20 in 1898 and 1899. According to Smith, one of respondents’ grantors, he and his co-owners had some one in possession of the tract Crumpecker fenced until May 21, 3903, when Allison bought. There is no evidence any one else was on the land until 1907, less than ten years before this suit was brought.

V. The possession of the Robinsons was not very clearly shown to have extended over an entire year. It is quite clear they did not take possession under respondents. They were not tenants and no ^ “ rent was demanded of them until February, 1908, less than a year before they left the property. They were trappers and occupied under no claim for themselves or respondents. Their possession did not satisfy the thirty-one-year statute. [Shumate v. Snyder, 140 Mo. l. c. 88.]

YI. Section 1882, Revised Statutes 1909 reads as follows: “The possession, under color of title, of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such land.”

(a) The evidence tended to show that in 1898 respondents’ grantors, by tenant, built a house on the east fractional half of Section 19 and fenced a tract of about twenty or thirty acres, which was partly on that part of Section 20 west of Little River. Most of the parcel was put in cultivation, and the whole was held and occupied by tenants of respondents’ grantors until 1903’. From that part of Section 29 in suit logs were taken to build the house on Section 19 — posts and rails and fire wood were cut and all the timber was sold off the whole tract. Levee repairs were made on 19 which protected Section 20, and respondents and their grantors had paid the taxes for nearly twenty years. The number of acres in the east fractional half of Section 19 and that part of Section 20 west of Little River does not appear. There may be many acres in each or there may be but few. In this case the land was wild land. The entry was under color of title covering both the east fractional half of Section 19 and that part of Section 20 west of Little River, The actual occupancy of respondents’ grantors embraced a part of the land in both sections. The acts of respondents’ grantors in selling off the timber, etc., already mentioned, were acts of ownership (Lumber Co. v. McCabe, 220 Mo. l. c. 178, et seq.) and were exercised in connection with an actual occupancy and under the same color of title under which their entry was made. It was a question of fact whether these acts of ownership satisfied the requirements of Section 1882, supra, in that regard. The trial court found in favor of respondents. In respect of the sufficiency of these acts of ownership, this record differs markedly from that in Keaton v. Hamilton, 264 Mo. l. c. 580.

(b) It is argued that the part of Section 20 actually fenced was too small to warrant the application of the rule of constructive possession to any Part °£ it. In some states it is held that the doctrine that possession of a part under color of title draws to it possession of the whole, “is subject to the proviso that the premises described in the conveyance consist of a single tract of a proper size to be managed and used in one body according to the usual manner of business of the country.” [Thompson v. Burhans, 61 N. Y. 52.] Even if this proviso to the general rule were the settled law of the State, it could not be applied to overturn the judgment in this case. In abstracting the conveyances in evidence, the descriptions are not set out in haec verba. They were before the trial court in full. The record does not show the number of acres in either the east fractional half of Section 19 or the part of Section 20 west of Little River. The enclosed part may have constituted a large part of the portions of 19 and 20 described in the color of title. This record does not show the contrary. It is clear only a part of each section is affected. What part does not appear. The facts do not make a case for the application of the rule invoked.

VII. Neither appellant nor any one under whom he claims or might claim was ever in possession of the land. The preceeding paragraphs show there was evidence tending to show a possession by respondents’ grantors sufficient to satisfy the thirty-one-year statute. There is ample evidence neither appellant nor any one under whom he claims or might claim paid any taxes after 1893. The taxes of 1888, 1889, 1890, 1891 and 1892 were in suit in the suit filed in 1893 and above referred to. There is evidence an examination of the records prior to 1893 showed no payment of taxes by appellant or any one under whom he claims or might claim; there was also evidence that very soon after Burns died in 1893 his son carefully searched his papers and effects for deeds, papers and receipts and found no tax receipts. His daughter made a like search at a later date. with a like result. Burnes bought the land in 1870 and lived in 'Pennsylvania thenceforward until his death. Appellant offered testimony tending to show the land was not assessed between 1870 and 1880 except for two years and that no taxes were paid for any of these years. The fact that the taxes were not assessed does not affect the question as presented by this record. [Abeles v. Pillman, 261 Mo. l. c. 376, 377.] The above evidence was sufficient to justify a finding for respondents on the issue of non-payment of taxes. [Davis v. Dawson, 273 Mo. l. c. 514.] It thus appears that the finding for respondents is supported by substantial evidence.

The judgment is affirmed.

All concur.


author: WHITE, C.

text:
    AMERICAN RADIATOR COMPANY v. CONNER PLUMBING & HEATING COMPANY, JEFFERSON REAL ESTATE & BROKERAGE COMPANY et al.
    Division Two,
    March 28, 1919.
    1. PILING SUIT: Date: How Shown on Appeal. The filing of a suit, and the date of filing, must on appeal he shown by the record proper, and a recital in the bill of exceptions that it was filed on a certain date will not supply an omission from tbe record of the date of filing.
    2. -: Mechanic’s Lien: Not Begun Within Ninety Days: Must Be Pleaded. The statute (Sec. 8228, R. S. 1909) which requires suit to he commenced within ninety days after filing a mechanic’s lien, is a statute of limitations, and must he pleaded in order to avail the defendant. If the defect does not appear on the face of the petition, it must he averred in the answer; if shown on the face of the petition, it may he raised hy demurrer.
    8. .-: -: Belated Piling Pleaded: Admission. Where each defendant in .his answer pleads as a defense to an action to enforce a mechanic’s lien for materials furnished a sub-contractor that the suit was not begun within ninety days as to the original contractor, who was not made a party, and tried the case on the theory that the suit was filed in time as to all the defendants except said contractor, a statement in the hill of exceptions that the suit was filed on a certain day is not a mere recital, hut a solemn admission of the theory on which the case was tried, and therefore said defendants will not he heard on appeal to present the case on a different theory.
    4. MECHANIC’S LIEN: Contractor as Party. In an action to enforce a mechanic’s lien for materials furnished to a sub-contractor and used in the construction of a building, the original contractor is not a necessary party. He may he a proper party, hut the materialmen is not to he denied his lien on the sole ground that the orignal contractor was not made a party. The words “parties to the contract” used in Section 8221, Revised Statutes 1909, declaring that “in all suits under this article the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged with the lien may, be made parties,” mean the parties to the particular contract which is the subject of the inquiry, for instance, the contract between the materialman and the sub-contractor who bought the materials; and Section 8223. does not contain a contrary announcement, for while it affords the owner an opportunity to adjust the differences between himself and the original contractor by giving him a right to bring in such contractor, it does not mean that the suh-con-tractor’s lien for materials furnished or labor performed under an agreement with him is to be lost for that neither he nor the owner exercised that right.
    Appeal from Jackson Circuit Court. — Hon. Frank G. Johnson, Judge.
    REVERSED AND REMANDED.

      John F. Cell for appellant.

      Haff, Meservey, German & Michaels for respondents.
   WHITE, C.

This was an action to enforce a mechanic’s lien brought in the circuit court of Kansas City by the plaintiff, for material funished to Connor Plumbing and Heating Company, a sub-contractor, and used in the construction of a building on the property of the defendant Jefferson Real Estate & Brokerage Company. Howard J. Yrooman was the original contractor, and defendants Edwin C. Meservey and Milo A. Wilson were trustee and cestui que trust in a deed of trust on the place.

There was a personal judgment in the circuit court in favor of the plaintiff and against Connor Plumbing & Heating Company, sub-contractor; but against plaintiff and in favor of the remaining defendants, denying the lien. The plaintiff appealed to the Kansas City Court of Appeals and that court reversed the judgment as to the lien and the defendants in whose favor the circuit court found and remanded the cause for trial, but certified the case to this court because the opinion is in conflict with a decision by the St. Louis Court of Appeals in Rumsey v. Pieffer, 108 Mo. App. 486.

The point on which the Kansas City Court of Appeals differs from the St. Louis Court of Appeals in the case mentioned turns upon the failure of the plaintiff to make the original contractor a party to the proceeding within ninety days [Sec. 8228, R. S. 1909.]

In the original petition filed in the case, Yrooman, the original contractor, was not made a party. The issue was tendered by motion and by the separate answers of the several defendants that Yrooman was not made a’ party and therefore there was defect of parties defendant. After ninety days from the filing of the lien the plaintiff filed an amended petition making Vrooman a party defendant; he was brought in by summons, and answered setting up as a defense that the action was not begun as to Mm within ninety days of the filing of the lien.

On the trial, the defendants, excepting the Connor Company, sub-contractor, objected to the introduction of any evidence on the ground that Vrooman was not made a party within ninety days, and the objection was sustained, with the result as stated.

I. A preliminary question is first presented for consideration. The filing of the original petition is not shown in the abstract of the record proper. The amended petition, on Avhich the suit was tried, was filed July 10, 1914; the mechanic’s lien was filed November 14, 1913. Respondent claims that because the abstract of the record proper does not show the suit was commenced within ninety days from the time of filing the lien, as required by Section 8228, Revised Statutes 1909, plaintiff’s case must fail.

.Appellant, however, calls attention to an admission shown in the bill of exceptions made by the respondents at the trial. Defendants’ objection to the introduction of any evidence was thus stated:

“Because the mechanic’s lien in this case was filed on the 14th day of November, 1913, and although this suit was filed on the 22nd day of November, 1913, the defendant Howard J. Yrooman was not brought into the case or attempted to be made a party defendant until July 10, 1914, when the amended petition was filed.”

Respondents, however, correctly say that the filing of the suit must be shown by the record proper and a recital in the bill of exceptions will not supply the place of that showing. [Mahaffey v. Cemetery Assn., 253 Mo. 135, l. c. 139.]

. In this case there appears to be no need of such a showing. The statute, Section 8228, which requires suit to enforce a lien to be commenced within ninety days after filing the lien, is a Statute of Limitations and must be pleaded in order to avail the defendant. [Bloom, Mechanics’ Liens, sec. 649; Towle v. Sweeney, 83 Pac. 74; Johnston v. Ragan, 265 Mo. l. c. 447.] If the defect does not appear upon ' the face of the petition it must be pleaded in the answer; if shown on the face of the petition the question may be raised by demurrer. [Burrus v. Cook, 215 Mo. 496; Garth v. Motter, 248 Mo. 477, l. c. 482.] .

The amended petition does not show on its face when the action was begun, and there was no allegation in the answer of 'any' failure to bring the suit within ninety days from the filing of the lien. The defendants, on the other 'hand, tried the case on the theory that the suit was filed in time as to all the defendants excepting Yrooman; each defendant distinctly pleads as a defense that the suit was not begun within ninety, days as to Vrooman. The statement in the bill of exceptions that the suit was filed on the 22nd day of November, 1913, is not a mere recital but the solemn admission of counsel made in the conduct of the case showing the theory on which the case was tried in the court below. Respondent will not be heard to present the case on a different theory here.

II. It is argued that the original contractor is a necessary party to the action and the suit must fail because the action was not commenced against all necessary parties within the ninety days as provided by Section 8228. The appellant is supported in this by the St. Louis Court of Appeals, as stated above, in the case of Rumsey v. Pieffer, 108 Mo. App. 486. In that case the material sued for was furnished to a sub-contractor; the original contractor was not made a party to the suit. The trial court sustained a motion to dismiss the suit as to the owners for that reason, and' the judgment was affirmed. This on the theory that Section 8233 made the original contractor a necessary party, in addition to the necessary parties named in Section 8221.

The Court of Appeals in that ease cites two cases in support of the position taken: Johnson-Frazier Lumber Co. v. Schuler & Muench, 49 Mo. App. 90, and Horstkotte v. Menier, 50 Mo. 158. In the Schuler case, however, the original contractor was the party to whom the material was furnished, and of course was a necessary party under Section 8221, Revised Statutes 1909. The Horstkotte case, as we read it, is directly opposed to the position taken. There the original contractor was not made a party defendant. The plaintiff furnished material to a sub-contractor, sued, and his lien was sustained. The court in that case construed the sections of the statute applicable, Sections 8221 to 8233, Revised Statutes 1909. Section 8221 is as follows: “In all suits under this article the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged with the lien may be made parties, hut such as are not made parties shall not he bound by any such proceedings.”

The expression, “parties to the contract,” has been construed several times to be the parties to the particular contract which is the subject of inquiry. [McLundie & Co. v. Mount, 145 Mo. App. 660, l. c. 667; Downey v. Higgs, 41 Mo. App. l. c. 219.] In this case it would be the contract by which the materials were furnished by plaintiff to the sub-contractor. Section 8233 provides that when a lien is filed by any person other than the contractor it shall be the duty of the contractor to defend the action at his own expense; that the owner, during the pendency of the action, may withhold from the contractor the amount for whicb the lien is filed, and in case of judgment against the owner or his property he shall be entitled to deduct the amount from what he owes the contractor.

As Section 8221 reads it is unambiguous and states with precision who are necessary and who are proper parties. “In all suits under this article” would include suits where there was an original contractor, not a party to a contract under consideration, as well as others. Does Section 8233 make the original contractor in a case like the present one a necessary party and modify the terms of Section 8221? This court in the Horstkotte case, supra, construing Section 8233, said, l. c. 160:

“When an owner of property contracts with a responsible party to furnish all materials and erect for him a building, under this section, he has the right to look to such contractor for protection against all liens by materialmen and sub-contractors. That, to my mind, was the evident intention of the Legislature. If the original contractor was not made a party he. would not be bound by the judgment; whereas if he was a party he would be estopped from disputing the amount of recovery as between himself and the owner.”

It was evident that this court then understood the purpose of Section 8233 was to afford the original contractor as opportunity to be heard and the owner an opportunity to protect himself against the original contractor. If the original contractor is made a party, then any judgment rendered would be conclusive as between him and the owner. If he is not made a party he is not bound by the result of the suit, but would have to litigate his differences with the owner in another suit.. The court continues, on the same page:

“What we now hold is that the original contractor ought to be brought before the court as a co-defendant, for the purpose of protecting his own rights and those of the owner. But if he is not so brought before the court at the proper time, the judgment will not for this omission be irregular or void. ’ ’

. The court would haye no jurisdiction of the cause to render any kind of a judgment unless the parties to the contract are brought into court, but not so as to the original contractor.

Some confusion is lent to that opinion by what follows where it indicates that the failure to take advantage of the'defect of the parties by demurrer or answer waives that defect. It is inferred that the defect would have been fatal if presented in a timely and proper manner. Bnt it is apparent from the context as quoted that the court did not mean that. It meant Section 8233 afforded an opportunity to adjust the differences between the owner and the- original contractor. The original contractor was a proper party and the owner had a right to have him brought into court for the purpose of such adjustment, and there appears to be no statutory reason why that purpose cannot be served, whether he is brought in before or after ninety days from the filing of the lien.

There are other decisions which indicate that the original contractor is not a necessary party in a case of this kind. [Downey v. Higgs, 41 Mo. App. l. c. 219; Walkerhorst v. Coste, 33 Mo. 401; Hardware Co. v. Prewitt, 170 Mo. App. 594, l. c. 598.]

Taking the plain letter of Section 8221 the original contractor is not a necessary party. It excludes that idea in its express terms. If Section 8233 adds additional necessary parties it is to that extent inconsistent with the provisions of Section 8221. Now Section 8233 can be given a construction which allows 8221 to stand unimpaired, and that .construction was given by this court in the Horstkotte cáse.

Manifestly it would be inequitable to require the original contractors in all cases to be made parties. The Mechanic’s Lien Law was intended to offer a simple and effective method by which laborers, material-men and contractors may secure claims for improvements which théy have furnished. The materialman knows to whom he furnishes the material, the record shows him who the owner is; but he is not required to engage in a hunt, possibly a fruitless one, for the original contractor. Building contracts are sometimes made by original contractors at a distance or in another state, and everything is sublet; the materialmen and laborers by inquiry might find out who the original contractor is. and they might not. Bnt the owner always knows.

It cannot be that the Legislature intended the lien should he lost because of a failure to ascertain the name of the original contractor and bring him into court, where the material was furnished and the labor performed under an agreement with a sub-contractor.

The judgment is reversed and the cause remanded to be proceeded with in accordance with these views.

Roy, C., absent.

PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.

All the judges concur.