text:
    JOHN A. FROWEIN v. THEODORE F. POAGE, Appellant.
    Division Two,
    November 29, 1910.
    1. QUIETING TITLE: Right to Possession: Accretion: Matter for Jury. Where the contest, in a suit brought to ascertain and determine the title to “made” lands, is purely one at law, the only question at issue being one of fact — as to whether the land is an accretion to the shore or to a surveyed island in the river — the issue is for the jury, and a jury cannot be denied unless waived.
    2. -; Jury Denied: Raised in Motion in Arrest: No Exception. Either plaintiff or defendant has a constitutional right to a jury to determine a contest at law, unless it is such a case as calls for a reference, etc.; and if not waived, it cannot be denied. And where appellant, demands a jury, and one is denied, he does not waive it, if the trial proceeds, by participating therein; and he preserves the point for review by filing his motion in arrest setting forth only that the judgment is erroneous. He need not specifically complain in his motion of a denial of a jury trial; nor will his right to urge a constitutional right to a jury trial on appeal be denied if he preserved no exception to the overruling of his motion or his request for a jury, the error being one of record and not one of exception.
    3. -: -: Constitutional Question. Where the Supreme Court has reached the conclusion that the trial court committed error in denying to appellant a jury trial on the only issue of law and fact in the suit to quiet title, it will not consider whether Sec. 650, R. S. 1899, is unconstitutional, since that statute does not deny a jury trial where the issues - are of purely legal cognizance.
    4. -: -: Issues of Fact. No expression on the weight of the evidence ■ going to support the findings of fact by the trial court will be made on appeal, where it is held that a jury trial was erroneously denied.
    Appeal from Marion Circuit Court. — Hon. David H. Eby, Judge.
    Reversed and remanded.

      W. M. Boulware and F. L. Schofield for appellant.
    The pleadings made a ca,se of controversy simply and purely as to the legal title to land. The court ruled: (1) That the question which of two claimants of adverse title at law was vested with the true title, could he tried and determined hy a proceeding under Sec. 650, R. S. 1899; (2) that under said section said question was required to be tried by the court as in equity, and that defendant was without right under the Constitution and laws of Missouri to have same tried by jury; (3) that under said section the court could not only by decree declare the legal title to be in one or the other of the parties litigant, but could declare the title be in neither of them and adjudge it to be in a third person not a party to the suit and not in any manner a claimant. Defendant maintains: First, that the section does not embrace adversary titles; second, if it does by its terms embrace adversary titles at law, then the procedure and trial must be under the dominion of the general practice act,, and the parties will have the right to a trial by jury; and, third, if the section embraces a case of adversary legal title, and if by its terms it authorizes or requires a trial by the court without a jury, then and in that case said section, in so far as it makes said requirement or gives such authority, is in conflict with sec. 28, art. 2, o.f the Constitution of Missouri, and therefore void. (1) Section 650, R. S. 1899, has no application to contests between adverse claimants of lands. R. S. 1855, p. 1241, sec. 62; Grant v. King, 31 Mo. 312; G. S. 1865, p. 662, sec. 53; "Webb v. Donaldson, 60 Mo. 394; R. S. 1879', p. 608, sec. 3562; R. S. 1899, sec. 2092; Laws 1897, p. 74; Meriwether v. Love, 167 Mo. 514; R. S. 1899, secs. 647 and 650. (2) “The right of trial by jury as hei’etofore enjoyed shall remain inviolate.” Mo. Constitution, art. 2, sec. 28. "While it may be conceded, as it’has been repeatedly held, that all limitations on the right which were known and recognized at the time of the adoption of the Constitution were thereby affirmed and made continued limitations on the right, yet nevertheless, the above section by its very terms forbids all restriction of this right to any narrower limits. Accordingly it has been held by this court that while the statute concerning references (sec. 698) in cases involving long accounts, is not in violation of the Constitution, yet upon the other issues involved in such cases and not refeired the parties are entitled, tínder the above provision of the Constitution, to a trial by jury. Tinsley v. Kemery, 170 Mo. 310. And again that, as this statute is in the nature of an exception to the right of trial by jury, it should not be extended by loose construction, and that where the whole case could have been fairly and conveniently tried by a jury a compulsory reference was held error as contrary to constitutional right. Ice Co. v.' Tamm, 138 Mo. 385. Of course the above section of the Constitution would exclude jury trials in chancery cases. Ely v. Ooontz, 167 Mo. 371. And if section 650 is to be upheld and literally construed and applied in all cases, it enforces trials in all cases in the manner pursued in courts of equity alone. For it is manifest that all the offices and functions of the court, sitting in a proceeding under the statute,' are peculiarly and distinctly such as are exercised only by courts of chancery. To “ascertain and determine the estate, title and interest” of parties litigant in real property, and to “define and adjudge by its judgment and decree the title, estate and interest of the parties severally in and to such real property,” are matters of exclusive equitable cognizance. Such a proceeding bears no analogy to any suit or action known to courts of law. While our code has abolished the distinction between mere forms of action, and has blended the jurisdiction of our courts of law and equity, the fundamental distinctions of substance between legal and equitable rights have never been overthrown and the principles by which these rights are to be determined yet remain unchanged. Maguire v. Yice, 20 Mo. 429; Richardson v. Means, 22 Mo. 495; Bliss v. Prichard, 67 Mo. 191; Kline v. Yogel, 90 Mo. 249 ; State ' ex rel. v. Evans, 176 Mo. 317. The proceeding au- ■ thorized bv this statute is quite analogous to the old bill in equity to quiet title or to remove a cloud, except that it is much broader. Under the old proceeding in such cases a mere equitable right was not sufficient to support the bill; it was requisite that the complaining party should’have both legal ownership and actual possession. Orton v. Smith, 18 How. 263; United States v. Wilson, 118 U. S. 86; Frost v. Spitley, 121 U. S. 552. (3) The issues made by the pleadings have always been the test by wbieb to determine whether the action is at law or in equity; and no reason is perceived against the application of the same rule in a proceeding under this statute. Ridgway v. Herbert, 150 Mo. 606; Greyson v. Weddle, 80 Mo. 39; Hardware Co. v. Wolter, 91 Mo. 484; Kortjohn v. Seimers, 29 Mo. App. 271; New Harmony Lodge v. Railroad, 100 Mo. App. 407. (4) The action by plaintiff in this case against the defendant in possession of and claiming legal ownership in the lands in controversy was manifestly and simply, “an action for the recovery of specific real property,” and therefore, by the express terms of section 691, “must be tried-by a jury unless a jury trial be waived.” R. S. 1899, sec. 691; Mfg. Co. v. Milling Co., 79 Mo. App. 156; Major’s Heirs v. Rice, 57 Mo. 384. Neither party can be deprived of this right by the interposition of an equitable defense in an action at law. Plow Co. v. Hartman, 84 Mo. 610'; Kitchen v. Railroad, 59 Mr. 514; Sehuermann v. Ins. Co., 165 Mo. 641; Wolff v. Schaeffer, 4 Mo. App. 367; Rand, McNally & Co. v. Wickham, 60 Mo. App. 44. (5) The fact that the duty of a trial under a statutory proceeding is laid upon the ‘ ‘ court, ’ ’ will not be allowed to deprive a party to such a proceeding of his right to a jury trial where the issues present a case entitling the party to such right. Benoist v. Thomas, 121 Mo. 660; Gunn v. Thurston, 130 Mo. 348; Earl v. Hart, 89 Mo. 269; R. S. 1889, sec. 2613; Briggs v. Railroad, 111 Mo. 174.

      Reuben F. Roy for respondent.
    (1) The abstract does not show that any exception was taken to the action of the trial court in overruling the motions for new trial and in arrest, so that there is nothing before the court but the record proper. State ex rel. v. Sanford, 181 Mo. 134. (2) The position taken by the appellant in the first subdivision of his brief has been ruled against him, twice by this court, tbe court bolding that section 647 bas been repealed by section 650. Hudson v. Wright, 204 Mo. 412; Meriwether v. Love, 167 Mo. 514. (3) Tbe contention of appellant in tbe second subdivision of bis brief that be was wrongly deprived of a jury trial is met by tbe fact that tbe motion in arrest in tbis cause is not before tbe court, as it is not shown by tbe appellant’s abstract to be in tbe bill of exceptions. Tbis court bas held that tbe refusal to permit a jury trial must be raised by motion in arrest, and if not so raised, is lost. Tbe motion in arrest shown in abstract does not even indirectly refer to that point. Vaughn v. Scade, 30 Mo. 600; Naylor v. Chinn, 82 Mo. App. 160; Brown v. Falker, 69 Mo. App. 418; Briggs v. Railroad, 111 Mo. 168; Scott v. Russell, 39 Mo. 409 ; Cox v. Moss, 53 Mo. 433; Tower v. Mo'ore, 52 Mo. 120; Brown v. Railroad, 37 Mo. 298.
   GANTT, P. J.

This action was brought under section 650, Revised Statutes 1899.

In substance the petition avers that tbe plaintiff is tbe owner in fee of tbe tract of land, described therein, as an accretion to other lands belonging to him on tbe west shore or bank of tbe Mississippi river in Marion county.

Tbe specific tract to which plaintiff asserted title is about fifty acres, tbe southern boundary thereof being tbe road embankment from tbe old bank of said river to the bank or shore line of Goose Island, tbe northern line thereof being a dike made by tbe United States Government, tbe western line being tbe old bank of tbe said river and tbe eastern line thereof being tbe said Goose Island and tbe Mississippi river. Tbe petition prayed tbe court to ascertain and determine tbe title or estate of plaintiff and defendant respectively in said tract and to adjudge and decree tbe same. There is no allegation as to the possession of the land.,

The answer, after specific denials of the facts alleged in the petition, states that defendant is in the actual possession and occupancy of the east half of said tract, claiming title thereto, and that his title therein and possession thereof cannot be litigated or adjudicated in this proceeding.

Defendant further states that he is the owner in' fee of Island No. 7 in the Mississippi river, commonly called Goose Island; that the effect of the building of the several dikes and dams therein mentioned by the United States Government was to deflect the waters of the said river running between said Goose Island or Island No. 7 and the Missouri shore, and that part of the bed around and above the head or northern end of,said island gradually filled up over the entire extent thereof by the gradual and continuous deposits therein made by the water until said island and shore became connected, and by reason thereof the eastern half of said new made land, extending the full length thereof, became attached to and formed a part of said island and is owned by the defendant. That the persons under whom plaintiff claims title to the Missouri shore line only asserted title to themselves in the west half of said new made land, and disclaimed title to the east half thereof, and defendant erected a fence on the division line and has ever since maintained the same.

The-reply was a general denial.

When the cause was reached for trial the defendant filed his written motion wherein he requested the court to declare the law to be that under the pleadings, the title to said tract could not be tried under section 650, Revised Statutes 1899,- second, that under the Constitution and laws of this state defendant was entitled to a trial of the question of his title by a jury, •which motion the court overruled, and denied a jury to try the question, and defendant duly excepted.

Thereupon plaintiff and defendant agreed in open court: First, that at the time of bringing this suit plaintiff was and is now the owner of and in possession of fractional sections two and eleven in township 59, range 5, west, in Marion county, Missouri, and that the east line of said sections was and is the west shore line or bank of the Mississippi river as originally surveyed by the United States Government. Second, that defendant is and was the owner of and in possession of Island No. 7 or Goose Island, in the Mississippi river, according to the Government survey of the United States, the same being in section 11 if the same were extended into the river.

Thereupon counsel for plaintiff announced to the court that plaintiff would not and did not claim title to any land south of a line running from the north point of Goose Island or Island No. 7 west to the old bank of the Mississippi river, but claimed and would claim title to the new made land north of said line, and abandoned all claim to the new made land lying south of said line, and between said line and the roadway mentioned;

Each party then offered and introduced evidence tending to establish his claim to said new made land, the tract in controversy, the plaintiff’s evidence tending to show that it was an accretion to his fractional sections 2 and 11 in township 59, range 5, and defendant’s evidence was directed to showing said tract was an accretion to his Island No. 7 or Goose Island. It was on this ground the battle was w;aged.

There were no equities pleaded, either in the plaintiff ’s petition and reply or the defendant’s answer, nor did the evidence- tend to show a right in equity on either side. It was a plain contest at law, a question of fact, as to which tract the new made land in controversy herein was an accretion. In a word, the issue was one of accretion alone; was it an accretion to plaintiff’s lands on the west shore of the river, or was it an accretion to defendant’s island? In the face of these undeniable facts there can we think be no doubt that the.defendant was entitled to a jury and that the court erred in denying a jury trial. [Lee v. Conran, 213 Mo. 404; Berry v. Railroad, 223 Mo. 358; Withers v. Railroad, 226 Mo. 373.]

The pleadings and the evidence required nothing but a plain judgment at law either for plaintiff or defendant. But plaintiff insists defendant has not saved this point in such a manner as to entitle him to complain of the error of the circuit court in denying him a jury trial. The record discloses that he demanded a jury and it was denied. The pleadings presented a case for a jury trial. There was no waiver of this right. Having been refused a jury and the judgment being adverse to him, he filed his motion in arrest of judgment, but did not specifically set forth the denial of a jury trial, but simply that upon the record the judgment was erroneous.

Section 28 of article 2 of the Constitution of Missouri ordains that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate.”

Our Code of Civil Procedure provides (sec. 691, R. S. 1899), that “an issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jnry, unless a jury trial be waived or a reference ordered as hereinafter provided.”

Section 693 provides: “Parties to an issue of fact shall be deemed to have waived a trial by jury in the following cases: First, by failing to appear at the trial; second, by written consent, in person or by attorney, filed with the clerk; third, by oral consent 'in . court, entered on the minutes. ’ ’ In Briggs v. Railroad, 111 Mo. l. c. 175, it was said: “No waiver in any of these methods is shown to have been made. This er ror, being one of record, was properly taken advantage of by motion in arrest of judgment. [Scott v. Russell, 39 Mo. 409; Cox v. Moss, 53 Mo. 433; Brown v. Railroad, 37 Mo. 298.]”

It appearing that defendant not only did not waive a jury trial, but actually demanded one, and it having been ruled that it is not necessary to save an exception, as the error is one of record and can be taken advantage of by a motion in arrest, the question arises can it not also be taken advantage of by writ of error or appeal without a motion in arrest? In our practice there is practically no difference between an appeal and a writ of error. Each brings the record before the appellate court, and by section 866, Revised Statutes 1899, it is provided: “The Supreme Court, St. Louis Court of Appeals and Kansas City Court of Appeals, in appeals or writs of error, shall examine the record, and award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law,” etc.

In Bateson v. Clark, 37 Mo. 31, it appeared that the objection was not raised in the circuit court and no exceptions were saved, and it was insisted on for the first time in the Supreme Court, but the Supreme Court noted the distinction between error of record and exception merely, and held that error apparent in the record proper could he'considered and remedied in this court whether any exceptions were taken or not. If the insufficiency of a petition or the failure to swear a jury, or the like, can be taken advantage of for the first time in the appellate courts, who will say that a positive denial of a plain constitutional right apparent • on the record proper may not also he taken advantage of, in this court, without a motion in arrest? In our opinion no such distinction can he made, and we think that while the motion in arrest was not sufficiently specific to have reached a matter of exception merely, under section 866, Revised Statutes 1899, the motion was not absolutely essential. [Lilly v. Menke, 126 Mo. l. c. 211 et seq.]

The denial of a jury trial to defendant was error for which the judgment must be reversed, and the cause remanded. [Briggs v. Railroad, 111 Mo. l. c. 174; Benoist v. Thomas, 121 Mo. 660.]

Having reached this conclusion, it becomes unnecessary to maintain the constitutionality of section 650, Revised Statutes 1899, which learned counsel assail in a strong brief on the theory that it denied a jury trial. Having concluded that when the issues are of purely legal cognizance as in this case, the parties are entitled to a jury trial, the objections to the constitutionality of the act vanish.

II. Counsel for defendant have assailed and counsel for plaintiff defended the findings and conclusions of the circuit court on the facts of the case. Inasmuch as we are of opinion the court erred in trying the case without a jury, we refrain from expressing an opinion on the weight of the evidence. It will be for the jury under proper instructions to weigh the evidence and find the facts, and manifestly this court ought not to express an opinion thereon in advance. Moreover the testimony may be different on a new trial.

We will say, however, that we do think that the map-, designated in this record as “Plaintiff’s exhibit No. 1” is not a “survey ” by the United States Government but is a diagram of the situation made by the officers in charge of the work of improvement of the Quincy harbor. As such it was competent to enlighten the jury as to the relation of the Island, the mainland on the Missouri shore, the dikes and road, but not as an official survey.

For the refusal of the demand of defendant for a jury trial, the judgment is reversed and tbe cause remanded for a new trial as an action at law.

Burgess, J., concurs. Kennish, J., was not a member of - tbe court when tbe cause was argued and there fore takes no part in tbe case.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    ROBERT BLICKENSDERFFER v. F. G. HANNA et al., Appellants.
    Division Two,
    November 29, 1910.
    1. ADMINISTRATION: Sale of Real Estate: Personalty Already Distributed. Testator died in 1868, and by his will gave his real and personal estate to his only daughter for life, and after her death to her offspring. His widow died in 1870, and the daughter married before testator’s death, and died in 1901, and this suit is by her children for the lands, which were sold in 1875 to pay debts, under an order of the probate court. The personal estate was inventoried at $803.85, the records showed allowances amounting to .$137.20, and the first annual settlement showed a balance due said estate of $895.21, the second a balance of $882.21, and the third a balance due the executor of $169.14. Vouchers for two of the allowances, amounting to $38, were in evidence. In 1872 the court ordered the executor to deliver the personal property, inventoried at $803.85, to the daughter’s husband, which was done and his receipt therefor taken. The executor died and the public administrator in 1875 applied for an order to sell the lands to pay debts, and the court found there -were estate debts unpaid and no personal estate to pay the same, and ordered the administrator to sell the lands, which was done. Held, that the facts, in view of the order of the court finding there were debts of the estate unpaid, do not show that there were no debts; and, second, testator’s creditors were not compelled to sue the daughter’s husband for the $803.85 of personalty turned over to him, or the bondsmen of the deceased executor before they could resort to the real estate. A creditor should not be relegated to an action on the bond for waste or a misappropriation for which he is in no wise responsible.
    2. -: -: -: Sufficient Notice: Collateral Attack. If the notice to the heirs and devisees, that application for the sale of the lands to pay debts had been made, etc., was sufficient to give the court jurisdiction to order a sale, then was their time to contest the order, if they desired to dispute the finding that there was no personal estate or that there were no debts; and if their contest was overruled, they should have appealed, and having done neither they cannot now, in a collateral suit, complain of the validity of the order.
    3. -: -: Sufficient Notice: Not in Paper Designated. Where the order of the court directed that notice of the application for the sale of estate lands to pay debts be published in the “Lebanon Journal” and it was published in the “Lebanon Chronicle,” the notice was sufficient to give the court jurisdiction under a statute which did not require the court to designate the paper in which notice should be published, but only required notice to “be published for four weeks in some newspaper in the county in which the proceedings are had;” and the court having accepted the publication as a compliance with its order, the notice cannot be held to have been void in a collateral attack upon the sale.
    4. --: —■-: Private Sale Ordered: Sold at Public Sale. Where the order of the court was to sell the land at private sale, and the sale, after proper notice in a newspaper and by hand bills, was at public sale, and was approved by the court, the validity of the sale is not opened to collateral attack, for the court had jurisdiction to approve and affirm it. Moreover, a public sale is deemed the fairest.
    5. -: -: Judicial Sale: Approval. A sale of real estate, under an order of probate court to pay debts, is a judicial sale, and the administrator is the officer or agent of the court in making it; and if approved, and the court had jurisdiction over the subject-matter and the parties, its approval and confirmation cures all prior irregularities.
    Appeal from Laclede Circuit Court. — Eon. L. B. Wood-side} Judge.
    Affirmed.

      O. L. Cravens and L. C. Mayfield for appellants.
    (1) It is undoubtedly true that probate court judgments are not subject to collateral attack, unless it appears to have exceeded its jurisdiction as attested by its own accompanying record. "When so shown, its judgments possess no validity. Langston v. Canterbury, 173 Mo. 131; Hutchison v. Shelley, 133 Mo. 412; St. Louis v. Hollrah, 175 Mo. 85; Desloge v. Tucker, 196 Mo. 601. The order of sale made July 12,1875, on the petition of Atchley, administrator de bonis non, shows that the court found “that the personal estate of the deceased, in the hands of the administrator, is not sufficient to pay the debts due and owing by said estate.” The court files show by the application of the administrator (McElvain) to correct the third annual settlement of executor Jones, filed July 14, 1874, “that J. P. Hanna, as representative of the sole heir of said estate, paid all the claims of said estate and that said Wm. Jones never received in his hands or paid off any claims against said estate.” Authority and jurisdiction of the probate court to sell land are found only in the fact that such sale is necessary to pay debts. The insufficiency of the personalty for that purpose is the first requisite to jurisdiction. Parrer v. Dean, 24 Mo. 16; Langston v. Canterbury, 173 Mo. 131; Teverbaugh v. Hawkins, 82 Mo. 180. We concede that the finding of the probate court that there was no personal property in the hands of the administrator sufficient to pay the debts due and owing by the estate, cannot be impeached in this collateral proceeding, except by the records and files of the probate court. The first settlement of executor Jones shows that he charges himself with $1120.88, and asks credit for $225.67, and balances the account by showing $895.21 to be due the estate, which is an error, and should be $995.21. His second settlement charges his balance due the estate on the first settlement at $895.21, instead of the true balance of $995.21, and, deducting $13 for disbursements, shows a balance of $882.21, instead of the true balance of $982.21, and his third and last settlement, after deducting $803.25 “by J. P. Hanna’s receipt for personal property, ’ ’ manages to bring the estate in his debt $169.14, but the true balance, even allowing him credit for the J. P. Hanna receipt of $803.25', ■ should he only $69.14 indebtedness of the estate to him. It is true the court by order authorized the executor to deliver to J. P. Hanna the personal property of the estate as inventoried, amounting to $803.85, as shown in the bill of appraisement. There was. no law authorizing this to be done, and the order must be treated as a nullity and afforded Jones no protection unless good and sufficient bond be taken as required by article 2, section 63, Wagner’s Statutes. That this was not done raises a presumption that there were no creditors of the estate at that date, April 10', 1872, who were not satisfied, the time for proving claims having long since expired, and the property being delivered or ordered delivered to the representative of the sole heir and legatee, of the deceased. Wagner’s Stats., art. 2, sec. 10. Upon the petition of administrator Atchley, the probate court, on April 14,1875, made an order of publication reciting and finding “that there is not sufficient assets on hand to pay the same (debts).” The order of sale made July 12,1875', recites and finds “that the personal estate of the deceased, in the hands of the said administrator, is not sufficient to pay the debts due and owing by the said estate.” This equivocal finding does not meet the requirement of the statute. The statute required that, before a sale could be petitioned for and ordered, the “personal estate shall be insufficient” to pay the debts of the estate. The probate court record shows there were no “accounts, lists and inventories” (Wagner’s Stats., p. 96, sec. 25) made by Atchley. The only accounts, lists and inventories that the probate court could have had before it were those previously made by executor Jones. These' showed, as we have proved, that there was a personal asset of more than $800'. Thereby the' record of the order of sale by the probate court was impeached by other portions of the record of equal dignity. At most and as to the administrator de bonis non, the result was a claim in his hands in favor of the estate against the bond of executor Jones or against Hanna. This he should have enforced. Orchard v. Wright, 225 Mo. 414. (2) The order of publication on the petition of administrator Atchley to sell the real estate requires that it. be published in the Lebanon Journal. The order of sale shows and finds that it was published in the Lebanon Chronicle and not in the Journal. The defect is fatal to the jurisdiction to make the order. If it is required to be published in some newspaper in the county, by the principle governing the power under which courts of like jurisdiction act, it had authority to designate the paper, and by so doing it exhausted its authority. Cunningham v. Anderson, 107 Mo. 371. The court’s directions must be followed. 17 Am. & Eng. Ency. Law (2 Ed.), 966. And this must he so whether the defendant was prejudiced or not. Brisbane v. Peabody, 3 How. Prac. 109; State ex rel. v. Reid, 134 Mo.. App. 582. (3) It clearly appears by the probate court records that a private sale was ordered. It is equally clear that the sale was at public auction, as shown by the order of approval and report and the deed to plaintiff. This court may have gone far in holding the order of approval of a sale by the probate court to cure prior irregularities, but it has not yet held, so far as we can find, that -a sale held at public auction 'in violation of an order to sell at private sale is valid. It must be conceded that a probate court, subsequent to a term at which it rendered a judgment, has no power to alter or revise such judgment. Peake v. Read, 14 Mo. 79; 1 Woerner’s Am. Law Adm. (2 Ed.), *331, sec. 146. Such being the law, it must be conceded that the order approving the sale cannot be taken as a revision or modification of the prior order of sale, and it remains to be determined whether the sale at public auction by the administrator is a mere informality; if it be not such then the sale is void. To hold otherwise would, in effect, be a collateral attack on such prior order, through the office of the order of approval. 1 Wagner’s Stats., p. 97, see. 26; 1 Woerner’s Am. Law Adm. (2 Ed.), *328, sec. 145. A private sale confers no title unless the order given by the court under its statutory powers so directs. Fambro v. Gantt, 12 Ala. 298; Schlicker v. Hemenway, 110 Cal. 579. “The approval .... is in effect a judgment that the sale has been conducted' according to law and the order of the court.” Hughes v. McDivitt, 102 Mo. 77. But the judgment approving the sale here stands impeached by the order of sale, which shows the sale not to have been held as ordered. Failure to follow the order requiring the holding of private sale is fatal to plaintiff’s title. Luttrell v. Wells, 97 Ky. 84; Ellet v. Paxson, 2 W. & S. (Pa.) 418; Covington v. Chamblin, 156 Mo. 587; 17 Am. & Eng. Ency. Law (2 Ed.), 816; 1 Wagner’s Stats., p. 119, see. 1; Grayson v. Weddle, 63 Mo. 523; Cunningham v. Anderson, 107 Mo. 371; Gaines v. New Orleans, 73 U. S. 642; Gaines v. De La Croix, 73 U. S. 719. The probate court lost jurisdiction (a) upon the failure of the administrator to publish the order of publication in the Journal, or (b) it lost jurisdiction upon the failure of the administrator to hold a private sale as directed by the order. In one event or the other, the jurisdiction was lost and the subsequent ápproval of the sale was void. State ex rel. v. Mitchell, 115 S. W. (Mo. App.) 1098; State ex rel. v. County Court, 119 S. W. (Mo. App.) 1010; Walser v. Gilchrist, 220 Mo. 314. Where the manner of selling the real estate of a deceased person is ordered by the court, the executor or administrator must strictly conform to its requirements. Reynolds v. Wilson,. 15 111. 394; Gould v. Garrison, 48-111. 258; Hand v. Matter, 73 Mo. 457. In making the sale the administrator must comply with every essential requirement of the statute and strictly follow the directions of the court. Tennant v. Pattons, 6 Leigh (Ya.) 196; Wyman v. Campbell, 6 Port. (Ala.) 219; Worthy v. Johnson, 8 Ga. 236; Fihnore v. Beithman, 6 Colo. 120; Vance v. Maroney, 4 Colo. 47; Lockwood v. Sturdevant, 6 Conn. 373; Berger v. Duff, 4 Johns. Ch. 368; Cruikshank v. Luttrell, 67 Ala. 318;. Beed v. Aubrey, 91 Ga. 435. (4) Unless there be a previous court order made authorizing the sale made by the administrator, it has no validity. It was within the power of the court to order ^either a public o.r private sale. Having ordered a private sale, it in effect ordered the land to not be sold at public sale.. Therefore, the public sale is as though no previous-order had been made at all; and the sale here is void. Evans v. Snyder, 64 Mo. 516; Green v. Holt, 76 Mo. 677; Melton v. Fitch, 125 Mo. 281; Hutchinson v. Shelley, 133 Mo. 400; Burnham v. Hitt, 143 Mo. 414; Lessee v. Park, 4 Ohio 5.

      W. I. Wallace for respondent.
    (1) The judgment, orders and decrees of courts having the probate jurisdiction upon matters and between parties over which the court has jurisdiction cannot be collaterally questioned. Camden v. Plain, 91 Mo. 117; Sherwood v. Baker, 105 Mo. 472; Macey v. Stark,. 116 Mo. 481. Probate courts are courts of superior though limited jurisdiction, whose judgments are not subject to collateral attack. Brawford v. Wolfe, 103-Mo. 391. Price v. Beal Estate Assn., 101 Mo. 107. (2)-Orders of sale to pay the decedent’s debts are judgments and such orders cannot be attacked collaterally. Grayson v. Weddle, 63 Mo. 523. (3) Irregularities in-an administrator’s sale cannot be attacked or impeached collaterally. Bugle v. Webtser, 55 Mo.. 246; Tutt v. Boyer, 51 Mo. 425; Noland v. Barrett,.. 122 Mo. 181; Melton v. Fitch, 125 Mo. 281. (4) In this-case, the judgment of the. probate court ordering the-sale of the land of Lewis Keedy, deceased, recited that there were debts unpaid and that there was no personal. property to pay the same, an.d that it was necessary to sell the land in order to pay the debts. Such an order of sale, regular in form, with these recitals, was a judgment, and conclusively estops the heirs of the decedent from setting up the untruth of these recitals; and as to whether or not there were debts, and whether or not there was personal property sufficient to pay them, are facts concluded by this judgment, and it is not available to thé heirs to make a collateral attack upon the judgment, when the land is in the hands of an innocent purchaser for value. Grayson v. Weddle, 63 Mo. 523; Macey v. Stark, 116 Mo. 481; Rogers v. Johnson, 125 Mo. 202; Melton v. Fitch, 125 Mo. 281; Davis v. Gaines, 104 U. S. 386. At any rate, in this case there was evidence to show that there were unpaid claims in existence at that time. (5) Another objection is that the order of publication giving notice of the application of the administrator for an order of sale, directed publication in the Lebanon Journal, whereas it was published in the Lebanon Chronicle. The judgment of the probate court ordering the sale and reciting that the notice of the application had been duly published, and the final order confirming the sale, entirely cured any such defect. See authorities previously cited. It could make no difference to the estate in what paper the notice of the application for an order of sale was given. The important question was that notice should be given as the statute required. The court had the right to select any paper, and the publication in any paper answered the provisions of the statute; and although it was published in a different paper, such error, if any, was trivial, in which the estate suffered no wrong and has no ground for complaint. But, as we have said, the order of the court „ confirming the sale cured all prior irregularities. Robbins v. Boulware, 190' Mo. 33; Covington v. Chamblin, 156 Mo. 587; Langston v. Canterbury, 173 Mo. 131. ,(6) Again, the order of the court was that there should be a private sale, and tbe sale as in fact made was a public one. The court bad tbe right to order either a private or a public sale, and tbe mere irregularity of selling at a public sale when a private one bad been ordered is not available for collateral attack under tbe authorities previously cited. Tbe only matter in which tbe estate was interested was that tbe sale should be given the fullest publicity, extending to would-be purchasers an invitation to be present and bid on tbe land. Tbe order confirming tbe sale, as heretofore given, shows as a part of tbe judgment, “That said sale was legally and fairly conducted pursuant to tbe order of tbe court and in accordance with tbe statute.” Such finding of tbe probate court effectually estops tbe appellants from making tbe objection to the validity of tbe sale. At best, it was an irregularity, cured by tbe judgment confirming the sale, and is no longer available to tbe heirs. An adjudication of a probate court, in confirmation of a sale, that notice has been duly posted, is not subject to collateral attack. Richardson v. Butler, 16 Am. St. Rep. 101; Saltonstall v. Riley, 65 Am. Dec. 334. A want of sufficient notice of a sale by an administrator renders tbe sale voidable only, and not void, and, tbe sale cannot be attacked collaterally. McNair v. Hunt, 5 Mo. 301. Tbe deed of tbe administrator conveying the land of decedent to tbe respondent was properly executed and acknowledged, and contained all tbe recitals required to be made by law, is evidence of tbe facts therein stated, and has tbe effect to convey to the purchaser all tbe interest of tbe deceased. Camden v. Plain, 91 Mo. 117; Knowlton v. Smith, 36 Mo. 507.
   GANTT, P. J.

This is an appeal from a decree of tbe circuit court of Laclede county, determining tbe title to two hundred acres of land in Laclede county, to-wit, the northeast quarter and tbe northwest quarter of the southeast quarter, all of section 25, township 34, range 15, to be in the plaintiff.

The defendants are the devisees of Lewis Keedy, who died in said county in 1868, leaving a last will, which was duly probated. By his will he gave the land -in suit to Caroline E. Morelock for her natural life and at her death to her offspring. Mrs. Polly Keedy, the testator’s widow, died in 1870. Mrs. Morelock, after the execution of the will, but before her father’s death, intermarried with J. P. Hanna. Of this marriage three children, Mrs. Christina Burch, Mrs. Mazie Bradley and Farmer G-. Hanna, were born, and survived their mother, Mrs. Hanna, who died January 9, 1901, and they assert title to said land under the will of their grandfather, Lewis Keedy..

Plaintiff claims title under an administrator’s sale of said land, made in 1875, under an order of the probate court. By this appeal the validity of the probate proceedings under which the lands were- sold and conveyed to plaintiff, are brought in question. The bid of the plaintiff for the two hundred acres was $190.

Subsequently some question arose as to the interest which Mrs. Morelock (afterwards Mrs. Hanna), took under the will, and plaintiff paid her $536, for a quitclaim deed to the land.

The contention of the defendants is that the administrator’s sale and deed were and are void for the following reasons: First, because there were no unpaid debts of the testator for which said lands could be sold; second, the order of publication required the notice' to the heirs to' be published in the Lebanon Journal, but it was published in the Lebanon Chronicle; third, the order required a private sale, but it was sold at a public sale, without a previous order for a public sale.

These propositions will be considered in their order, in the light of the record.

I. The administrator’s deed recites that on July 12, 1875, at its July term, 1875-, the probate court of Laclede county, by its entry ordered said administrator to sell the land in controversy to pay'off and discharge the debts of the testator, Lewis Keedy, at public sale, for cash in hand; that previous to the day of sale, said administrator caused a notice that said real estate would be sold at public sale on October 11, 1875, at the courthouse door in Lebanon, for cash in hand, to be published in the Lebanon Chronicle, a newspaper published in said county, for four weeks, and also caused a copy of such notice to be put up in ten public places in said county twenty days before said, sale; that he caused said real estate to be duly appraised by three householders (naming them), who appraised the same at $300 and so certified under their oaths; that at said sale Eobert Blickensdarffer was the highest and best bidder for $190, and the same was stricken off to him, and that at the nest term said administrator made report of his proceedings to the probate court, which by its order of record approved the same, and in pursuance of the premises and the payment of the said sum he conveyed the said land to said purchaser. To impeach and avoid said deed, defendants offered and read in evidence the inventory consisting of a long list of horses, cattle, hogs, farm implements and household goods; also notes and accounts to the amount of $317.03. Defendants also read in evidence the appraisement of the said personal estate amounting to $803.85. Defendants also read the record of allowances against said estate, consisting of one for $25 in favor of John W. Wilkinson, in the first class; one in favor of the administrator of Keedy, Givens & Co., Alfred Case, Admr., for $54.30, fifth class; one in favor of H. F. Johnson, for $13; one in favor of S. W. Barnes, fifth class, for $5.30; -one for $4.60 in favor of Mary Davis, and one in favor of Fy. Jones, administrator of Wm. Jones, for $35.

Defendants also read in evidence vouchers for payments of the allowances to Wilkinson, to Johnson,, and receipts for printer’s fees and probate costs'. Defendants also read in evidence the first, second and third annual settlements of Wm. Jones, the executor of said estate. The first settlement showed a balance due the estate of $895.21; the second, a balance of $882.21,. and the third a balance of $169'.14 due the executor.

Defendants also read in evidence an order of the probate court of April 10-, 1872, directing the executor to deliver the personal property inventoried to J. P. Hanna and take his receipt for $80:3.85, which he did, and his voucher therefor was filed in the third annual settlement.

It appears that the executor (Jones) died, and one McElvain was appointed administrator de bonis non, in 1873. He was afterwards removed and the estate was ordered into the hands of N. D. Atchley, public administrator, who afterwards filed the petition for' the sale of the lands and made said sale and deed. The petition alleged that there were debts unpaid; that no personal property had come into the hands of the administrator belonging to said estate; that there was no property except real estate; that it was necessary to sell said real estate or a part thereof to pay said debts, and set out a description of the lands, and prayed for an order of sale. The court made the order of publication on April 14, 1875, requiring the same to be made in the Lebanon “Journal,” and on July 12,1875, made the order of sale.

In support of their contention that there were no unpaid debts for which the lands could be sold, defendants introduced J. P. Hanna, who testified that he paid the Keedy, Givens & Co. allowance of $54.30, at least “that was his recollection.” He "also testified that he paid the $35 allowance to Jones. He testified that Mr. Wallace, attorney for plaintiff, knew that he, Hanna, had paid all these claims against Keedy’s estate.

On the other hand, the prohate court found there were debts of the estate unpaid, and that there was no personal estate to pay the same, and Mr. Case, the administrator of Keedy, Givens & Co., testified J. P. Hanna did not pay said allowance; that it was paid by Mr. Wallace, as attorney for the public administrator, Atchley, out of the proceeds of the sale of the lands. Mr. Wallace denied that he knew the claims were all paid. We think the contention that there were no unpaid debts when the order of sale and the sale were made is unsupported by the record. Neither the testimony of J. P. Hanna that he paid the debts, to the best of his recollection, nor the ex parte order reciting the debt had been paid, was conclusive upon the probate court. That evidence was directly contradicted by Case, the administrator of Keedy, Givens & Co., and there was no voucher therefor. The probate court was possessed of jurisdiction to determine that fact and its adjudication is not open to collateral attack in this collateral proceeding. Defendants could have appealed from that judgment if dissatisfied with it.

It is insisted also that the order of sale was void for the reason that the record of the probate court in this particular estate showed that there was sufficient personal estate to pay the unpaid debts, to-wit, the claim of the estate against the bondsmen of Wm. Jones, the executor, who had paid over to J. P. Hanna $803.25 under the order of the probate court, and also against said Hanna.

Learned counsel for defendants concede that the judgments of probate courts in this state in causes within their jurisdiction are entitled to all the pre-' sumptions of a court of general jurisdiction and are not subject to collateral attack, but insist that, like courts of general jurisdiction, they may be attacked collaterally by their own records of equal dignity, showing they had no jurisdiction in the given cause. Counsel admit that the finding of the probate court that there was no personal estate m the hands of the administrator sufficient to pay the debts due and owing by the estate cannot be impeached collaterally in this proceeding except by the record and files of the probate court, but insist this was done by the record showing the court had ordered the executor (Jones) to deliver the personal estate amounting to $800' to J. P. Hanna, without bond to refund for the benefit of creditors.

Counsel insist that the finding of the probate court “that the personal estate of the deceased, in the hands of the said administrator, is not. sufficient to pay the debts due and owing by the said estate,” is equivocal and falls short of the requirement of the statute; that before real estate can be sold for the payment of the debts of a deceased person, it must appear that his personal estate shall be msufficient to pay his debts and legacies. [Wagner’s Statutes 1872, art. 3, sec. 10.]

Was the order of sale void and unauthorized lie-cause the record showed that the estate consisted, in part, at the death of the testator, of personal property to the amount of $800 which would have been amply sufficient to have paid all the debts of the estate, but this personalty was turned over to J. P. Hanna, as representative of his wife, the then sole devisee of said estate, by order of the probate court? Hanna was the husband of the only daughter of the testator and by the will this personal property was bequeathed to the widow of the testator, who died in 1870. When this order was made the creditors whose claims were unpaid were not in court, but it was represented to the court' all the debts had been paid by J. P. Hanna.

The question is, were the creditors compelled to sue Hanna, or the bondsmen of Jones, the executor who had died, for this $800, before they could resort to the real estate? We think not. We think the principle was properly ruled in Wan Bibber v. Julian, 81 Mo. l. c. 625, wherein on a like contention this court said it would not require a creditor, “to resort to a suit on the bond of the administrator, with the trouble, expense and delay incident thereto,” before proceeding for an order for a sale of real estate. While the statute wisely requires the personal estate to be applied first to the payment of debts of the deceased, a creditor should not be relegated to an action on the bond for waste or misappropriation for which he is in no way responsible, and in this case the representative of the heir seems to have brought about the condition of which his children now complain.

But independent of this consideration, if the' notice to the heirs and devisees was sufficient to give jurisdiction, which we will consider later, if they desired to contest the finding that there was no personal estate, and were dissatisfied with the order of sale, they should have appealed from the order and cannot assail it .in this collateral way. [Wolf v. Robinson, 20 Mo. 459; Grayson v. Weddle, 63 Mo. l. c. 536; Melton v. Fitch, 125 Mo. 281.]

. II. Was the notice to the heirs and devisees void because the court ordered it published in the Lebanon “Journal” but it was in fact published in the “Chr'onicle” newspaper? The statute governing the proceeding was section 25 of article 3 of Wagner’s Statutes 1872 (then in force), and was as follows: “Section 25. AYhen such petition, and such accounts, lists and inventories shall be filed, the court shall order that all persons interested in the estate be notified thereof and that unless the contrary be shown, on the first day of the next term of the court, an order will be made for the sale of the whole, or so much of said real estate as will pay the debts of the deceased. Such notice shall be published for four weeks in some newspaper in the county in which the proceedings are had, or by ten handbills, to be put up at ten public places in said county, at least twenty days before the term of the court at which any such order will be made, in the discretion of the court.” The notice in this case was published in a newspaper published in the county, for four weeks, to-wit, the Chronicle, but not in the Journal, the paper designated by the court, and the court so found before it made the order of sale.

It will be observed that the statute does not require the court to designate the newspaper in which the order shall be published. The statute in this respect is unlike the statute g'overning orders of publication in actions under the Civil Code, section 581, Revised Statutes 1899, which provides the notice shall be published in the newspaper, that the plaintiff or his attorney “with the approval of the judge or clerk making the order, may designate as most likely to give notice to the person to be notified.”

This section has been construed and it has been held that a failure to designate in the order the paper, with the approval of the judge, or clerk, if in vacation, was fatal to the jurisdiction of the court. [Otis v. Epperson, 88 Mo. 131.] ‘Whereas under the practice of the Act of 1855, the failure of the clerk to designate the particular.newspaper in which the notice should be published, although an error, was held not to be such an one as would destroy the judgment in a collateral proceeding. [Kane v. McCown, 55 Mo. l. c. 195-6.]

An order of publication under our statute law is substituted process. It is the means resorted to of giving the defendant notice in cases where the ordinary process of law, the service of a writ of summons personally upon a defendant, cannot be made. Being only constructive notice, it has been uniformly ruled that a strict compliance with the statute must be observed to give the court jurisdiction. In this case the statute required the notice to be “published for four weeks in some newspaper in the county in which the proceedings are had, ” etc. This was done. The law did not require the court to designate the newspaper, but it did. The failure to obey tbe order of tbe court in this non-essential particular was at most but an error of irregularity. The fact appeared to the court and it accepted the publication as sufficient. There is such a marked difference between the requirement of the Administration statute and that governing practice under the Civil Code that the decision in Otis v. Epperson, 88 Mo. 131, cannot be held to apply, and if the order of publication in Kane v. McCown, 55 Mo. l. c. 195, was not void, even under the Civil Code, a fortiori, the publication in this case cannot be held void in this collateral proceeding. It was not mandatory upon the court to designate any particular paper.

In this connection our attention is directed by defendant’s counsel to State ex rel. v. Baldwin, 109 Mo. App. 573. We think the language of the Local Option statute is materially different from the Administration statute under review, and that fact calls for a different construction, without impinging upon the authority of that case or the opinion in State ex rel. v. Reid, 134 Mo. App. 582.

The publication met the requirements of the statute, and the mere fact that it was not published in the paper designated, but was published as the law itself required, cannot be held to have deprived the cburt of jurisdiction to make the order, especially as the court accepted it as a compliance with its order.

III. It is next urged that the sale was void because the court directed a private sale, whereas the administrator de. bonis sold it at public sale after having advertised it for sale in the newspaper and by handbills. This sale was duly approved, but it is insisted that as the sale was void, the approval was incapable of rendering it valid. On this point, it must be constantly kept in view that this was a judicial sale, and the principles governing that character of sale must govern. It is familiar law that, in a judicial sale, the court ordering and approving the sale is regarded as the contracting party on one side, and the bidder on the other.

In Anderson v. Scotton, 2 Bland’s Ch. 643, it was held that if a trustee directed to sell at public sale does notwithstanding sell at private sale, the sale will be confirmed, if satisfactory reasons are given for so doing and no objection is made.

This was said in a direct appeal, but the rule is much stronger when such an approval is assailed collaterally, as in this case. Moreover, with us the public •sale is deemed the fairest, and where, as here, the order was for private sale and the sale was public and fully reported to the court and approved, we can no longer doubt that the court had jurisdiction to approve and confirm it, and its judgment is not open to this collateral attack. '

The administrator is regarded as the officer or agent of the court in making the sale. In Cunningham v. Schley, 6 Gill (Md.), l. c. 229, on this point, it was said: “If, for reasons deemed sufficient by the court, the agent departs from the form in which he is to exercise his authority, who could have a right, merely upon the ground of such departure, to say that the principal should not ratify the act of his agent?” Again and again this court has held sales of real estate under orders of the probate courts to be judicial sales, and the confirmation of such sales by the probate court is the crowning act and cures all prior irregularities, provided of course, always, that the court had obtained jurisdiction of the subject-matter and over the parties. [Robbins v. Boulware, 190 Mo. 33; Noland v. Barrett, 122 Mo. 181-189; Melton v. Fitch, 125 Mo. 281.]

Having carefully considered each assignment of error, we are of opinion that they are neither singly, nor collectively, sufficient to render the administration sale and deed void, and for the reasons given the judgment of the circuit court is affirmed.

Burgess, J., concurs; Kennish, J., not having been a member of tbe court when the cause was argued, takes no part in the decision.


text:
    Ex Parte ROBERT C. SMITH, Petitioner.
    Division Two,
    November 29, 1910.
    1. LOCAL OPTION LAW: Must Apply to Whole State. An act to regulate the licensing of plumbers in all cities of the State having a population of more than fifty thousand inhabitants, and providing that it shall be inoperative until adopted by proper ordinance by the' city to which it relates,' is invalid and void. A local option law, in order to- be constitutional, must apply to the whole State, and must confer upon the people of every locality the privilege of taking advantage of it, or not, as they see fit.
    2. -: -: Disregarding Nullifying Section. Nor can the section which declares the act shall be inoperative until adopted by ordinance by the city, be disregarded, and the rest of the act held to be valid. That section gives character to the act, and the act likely would never have received the approval of the Legislature without that section.
    3. -: -: Valid Ordinance. But conviction for carrying on of the business of a plumoer without a license as required by an ordinance of the city may be upheld if the ordinance is not based on said void act, but was enacted in pursuance to valid charter provisions which clearly authorized it.
    4. EJUSDEM GENERIS: All Other Business: Plumbing.. The purpose of the rule of ejusdem generis is to ascertain the intention of the lawmaker. It is not a rule of abrogation, and is never permitted to defeat the real purpose of a statute or charter provision as that purpose is gathered from the whole enactment. A clause in the charter of St. Louis giving the Mayor and Municipal Assembly power to license, tax and regulate various kinds of business specified “and all other business, trades, avocations or professions whatever,” although not mentioning plumbing, is broad enough to authorize an ordinance requiring a plumber, as a prerequisite to his right to carry on the business of a plumber, to have a license from a. board of examiners.
    5. PLUMBING: Constitutional Right. The natural right of an individual to the gains of his own industry, and to liberty and the pursuit of happiness, is not absolute. He enjoys those rights subject to the paramount right of the community to so regulate his business, or trade or pursuit that, in exercising' it, no injury will result to the public health. The business of plumbing is so intimately connected with the public health and comfort, especially in large centers of population, where scarlet fever, typhoid fever, diphtheria and other diseases are apt to become-epidemic, that it is a proper subject of reasonable police regulation; and the city has a right to require that the citizen possess certain necessary qualifications before he can carry on the business of a plumber, and to enforce that regulation by requiring him to obtain a license from a board of examiners and by ■ punishing him by fine if he undertakes to carry on the business without such license, and to imprison him if the fine is not paid; and none of such regulations or requirements 01 penalties transgresses his said constitutional rights.
    6. -: -: Due Process of Law. An ordinance which requires every person who carries on the business of a plumber, and operates alike upon all who come within its provisions, is not violative of the Fourteenth Amendment to the Federal Constitution which provides that no State “shall deprive any person of life, liberty or property without due process of law.”
    7. - — : -: Charter Powers of City: Standing of Statute., A charter power of a freehold city, like Kansas City and St. Louis, under the Constitution, has all the sanction of a legislative enactment by the General Assembly.
    8. -: Fee: Tax. A fee of one dollar a year, exacted by the city of each person who obtains a license to carry on the-business of a plumber, is not a tax, but a mere license fee, and the ordinance imposing it is in no sense a revenue measure.
    Habeas Corpus.
    Writ denied.

      L. A. Steber for petitioner.
    (1) A local option law that authorizes the people of only a limited portion of the state, or of every portion of the state except specified parts thereof,- to avail themselves of it, is not a valid law, for laws must be made by the Legislature and must be co-extensive with the territorial limits of the state, in respect to the powers conferred or the burdens imposed. (2) Rights guaranteed to a citizen by the Constitution cannot be abridged by legislation under the guise- of a police regulation. (3) The Act of 1903 does not authorize the city to impose any penalty for the violation of any city ordinance. The state cannot authorize a city to make an offense against the state a separate offense against the city. This would be double punishment for the same offense. (4) The police power cannot be so absolute as to be beyond the cognizance of the courts to determine whether it has been reasonably exercised in a given case or not. River Rend Co. v. Behr, 77 Mo. 91; In re Jacobs, 98 1ST. Y. 98; 22 Am. & Eng. Ency. Law (2 Ed.), 938, 939'; Lochner v. New York, 198 U. S. 45; Adair v. United States, 208 U. S. 161. (5) The act is obnoxious to the Fourteenth Amendment to the United States Constitution. (6) “The mere form an act is made to assume will not determine its constitutional character; that will be determined by its operation.” (7) Section 13 of the Act of 1903 renders the entire act void. By that section the act shall be inoperative .until adopted by proper ordinance of the city. “It substitutes for, or rather adds to, the legislative will another will, which makes it necessary to the existence of the law. This is unconstitutional.” (8) Before a person can be deprived of the liberty of following an employment, those who make the claim must show authority therefor, instead of calling upon that person to show how and where the. authority is negatived. (9) The ordinance is not a police, but a trade regulation. What the Legislature cannot do directly, the municipality eertainly cannot do indirectly. (10) The right to labor is an inherent right, never surrendered in a republican form of government. 4 Am. and Eng. Ency. Law (2 Ed.), 59-60; Orr v. Quimby, 54 N. H. 613. Although the petitioner was charged with following the “business” of plumbing, this means labor. 5 Am. and Eng. Ency. Law (2 Ed.), 72-79. “Occupation signifies the principal business of one’s life, vocation, calling, trade; the business which a man follows to procure a living or obtain wealth.” 21 Am. and Eng. Ency. Law (2 Ed.), 769. The “trade, business or calling” of a plumber, relates to the mechanical employment. 28 Am. and Eng. Ency. Law (2 Ed.), 339’, 340. (11) A comparison between the ordinance and the legislative act shows conclusively that the municipal assembly of St. Louis in passing the ordinance followed the lines of the legislative act, thus showing conclusively that the act was regarded by them as the foundation for the ordinance. While this fact, as a legislative assertion, does not bind the court in its construction and adjudication, yet “straws show which way the wind blows.” (12) This act evidently being assumed by the municipal assembly to be a general law, that body must have had in mind the provisions of Section 6258, Revised Statutes 1899, which provides that ordinances in their passage shall be in conformity to state law upon the same subject.

      Lambert E. Walther, A. H. Rouclebush and Chas. P. Williams for respondent.
    (1) The business of plumbing has been many times decided to be a proper subject of police regulation. State v. Gardner, 58 Ohio 599; Douglas v. People, 225 111. 536; Caven v. Coleman, 96 S. W. (Tex. Civ. App.) 774; Singer v. Maryland, 72 Md. 464; People v. Warden, 144 N. Y. 529; State v. Justus, 90 Minn. 474; State v. Benzenberg, 101 Wis. 172. (2) The city is empowered, under its charter, to enact the ordinance. Charter, art. 3, sec. 26, clauses 2, 5, 6 and 14; Kansas City v. Yindquest, 36 Mo. App. 588; Kansas City v. Richardson, 90 Mo. App. 461; Ruekert v. Railroad, 163 Mo. 276; National Bank v. Ripley, 161 Mo. 132; St. Louis v. Weitzel, 130 Mo. 619; St. Louis v. Herthel, 14 Mo. App. 471; St. Joseph v. Lung, 93 Mo. App. 626; St. Louis v. Bowler, 94 Mo. 632; State v. Schuchmann, 133 Mo. Ill; ■ State v. Bockstruek, 136 Mo. 335; State v. Stocker, 90 Mo. App. 357; Charter, art.-3, sec. 26, clauses 2, 6 and 14. The power to enact is not limited or abrogated by Sec. 6256, R. S. 1899. The license fee is a police regulation, and not a tax. 21 Am. and Eng. Ency. Law (2 Ed.), 773; Kansas City v. Grunsch, 151 Mo. 134; St. .Louis v. Knox, 6 Mo. App. 249; St. Louis v. Dairy Co., 190 Mo. 504; Norfolk v. Flynn, 101 Ya. 473; State v. McKinney, 74 Pac. 1099; State v. Bengsch, 170 Mo. 109; State v. Bixman, 162 Mo. 1. (3) The ordinance is not unreasonable on its face, and there is no evidence of its unreasonable operation. It is within the police power. State v. Meyrose, 139 Mo. 560; City v. Galt, 179 Mo. 8; St. Louis v. Theatre Co., 202 Mo. 690. (4) The ordinance attempts no restrictive conditions against plumbers licensed by other cities. (5) There can be no question of conflict with the Act of 1903, for the reason that that act has never been adopted in St. Louis, and for the further reason that that act is void. Laws 1903, p. 82; State ex rel. v. Nast, 209 Mo. 708; Pollock v. Trust Co., 158 IT. S. 601; State v. Tea Co., 171 Mo. 634; State v. Wardell, 153 Mo. 319; Allen v. Louisiana, 103 IT. S. 80; State ex rel. v. Railroad, 195 Mo. 229; Merchants’ Exchange v. Knott, 212 Mo. 642.
   GANTT, P. J.

The petitioner was fined ten dollars in the police court of St. Louis and imprisoned in the St. Louis city workhouse for carrying on the business of a plumber without having been licensed as required by an ordinance of said city numbered 23007.

The specific charge was for a violation of sections five and ten of the said ordinance.

Section five provides that upon satisfactory proof of the qualifications and fitness of the applicant for a plumbing license, a board of examiners of plumbers shall issue to him a certificate, which shall entitle him to engage in or work at the business of plumbing for a period of one year. And no person shall be entitled to obtain from said board a certificate of qualification, as master, or employing plumber, or a journeyman plumber, except as in the ordinance provided, who shall not first have passed a satisfactory examination before said board as to his knowledge, experience and skill in practical plumbing, house draining and plumbing ventilation.

Section ten provides a penalty of not less than ten dollars nor more than one hundred dollars for any person who shall engage in the business of plumbing in said.city without having been duly licensed as required by the ordinance.

The petitioner claims that this ordinance is founded for its authority on the plumbing act of the Legislature approved March 27, 1903, Laws 1903, pages 82-84, and that said act is an unconstitutional law because it was local and special and in violation of section 53 of article 4 of the Constitution of Missouri. And because the said act was in violation of petitioner’s constitutional right to life, liberty and property. He also maintains that the ordinance is outside of the charter and statutory powers of the city of St. Louis and is unreasonable and therefore void. On the other hand, the city insists that the ordinance is a perfectly valid exercise of charter powers of the city of St. Louis, and that the business of plumbing is the proper subject of police regulation.

Clauses of the charter of the city of St. Louis applicable to this discussion are clause 5 of section 26 of article three of the charter, which give the Mayor ■and the Municipal Assembly the pov ar to license, tax and regulate various kinds of business. This clause, after specifying the various kinds of business, further provides the power to license, tax and regulate all ■other business, trades, avocations or professions whatever. And clause six of the said section provides that the Municipal Assembly shall have power to secure the general health of the inhabitants by any measure necessary, and to regulate . ... the carrying on ■of any business which may be dangerous or detrimental to the public health. And clause fourteen of •said section 26 of article 3 gives the city power “to pass all ordinances not inconsistent with this charter ■or the laws of the state as may be expedient in maintaining the peace, good government, health and welfare of the city, its trades, commerce and manufactures and to enforce the same by fines and penalties not exceeding five hundred dollars. ”

I. As already said the petitioner insists that the ordinance is founded upon the Plumbing Act of March 27,1903, and that act is void because it is not a general law, but is local and special, as it can only be made to apply to cities having fifty thousand or more inhabitants. The title of this act declares it to be a law “to secure the registration of plumbers in all cities within this state having a population of more than fifty thousand inhabitants, and to provide for a board for the examination of plumbers therein,” etc. Thus on its face, it applied to all cities in this state of the population mentioned, but section thirteen of the act provides: ‘ ‘ The provisions of this act shall be inoperative until adopted by proper ordinance by the city •or town to which it relates.” In a word, in effect it is a local option statute which can only become a law when a particular city makes it operative therein. Until a city of the class mentioned adopts it, it is a dead law, and it is only when the city by proper ordinance does adopt it that the act itself and its penalties as state enactments, for the first time come into life and being. In a word, this act was not a complete law when it left the hands of the Legislature; it depended upon the action of every city of the population mentioned therein whether it became a law within such city or not. Local option laws have often been held to be constitutional in this State, where the laws themselves were complete enactments when they left the Legislature, and did not depend upon any outside authority to make them laws. “But local option laws, that is, laws passed by the State, which may or may not be taken advantage of and utilized as the people of each locality elect so to do, or not, must apply to the whole State, and must confer upon the people of each locality a privilege of taking advantage, or not, of those laws as they see fit. A local option law that authorizes the people of only a limited portion of the State, or of every portion of the state except specified parts thereof, to avail themselves of it, is not a valid law, for laws must be made by the Legislature and must be coextensive with the territorial limits of. the state in respect to the powers conferred or the burdens imposed.” [State ex rel. v. Railroad, 195 Mo. l. c. 245.]

The language of this Act of 1903 on its face provides that it shall not be operative until it is adopted by the city or town to which it relates, and thus takes it out of the reasoning upon which local option laws have been sustained. And in our opinion, the act is clearly unconstitutional and void, nor can we reject section 13 and thus save the enactment. This section gives character to every part of the act, and in our opinion the act never would have received the approval of the Legislature without this section in it, and yet there is not the slightest hint of such a radical, change in the character of the bill from that indicated in its title.

It is not deemed necessary to amplify reasons for holding the act unconstitutional, as both the petitioner and the city counselor concur in the view that it is unconstitutional. Moreover, it is conceded that this act, even if valid, has never been adopted and become operative within the city of St. Louis, and hence it can form no basis for the ordinance which is assailed by the petitioner in this case. This act being then out of the way, the question recurs, is it a valid exercise of the charter powers of the city of St. Louis? Under the charter provisions quoted in the statement, the city has large powers to license and regulate trades and avocations, hut it is insisted by the petitioner that because plumbers are not specifically named that the city has no right to license and regulate their business, and he invokes the rule, of ejusdem generis, which requires that, “Where a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive and the general words treated as referring to matters ejusdem generis with such class.” [Broom’s Leg. Maxims (6 Ed.), p. 625.] While this maxim has often been applied by this court it has been said that its purpose was to ascertain the real intention ‘of the lawmaker and not a rule of abrogation. As was well said by Valliant, J., in Bank v. Ripley, 161 Mo. 132, “It is not a cast-iron rule, it does not override all other rules of construction, and it is never applied to defeat the real purpose of the statute as that purpose may be gathered from the whole instrument.” Judge Sherwood, in State v. Schuchmann, 133 Mo. 120, applied the rule ejusdem generis and spoke of it as a “good rule of construction,” but in St. Louis v. Weitzel, 130 Mo. 619, the same learned judge did not find that rule prevented his giving the words “regulate or suppress all occupations, professions and trades not heretofore enumerated of whatever name and character” (par. 5, sec. 26, art. 3, Charter of St. Louis) their full effect so as to include the power to license the business of hauling garbage. See, also, St. Louis v. Herthel, 14 Mo. App. 471; St. Joseph v. Lung, 93 Mo. App. 628; St. Louis v. Bowler, 94 Mo. 630; State v. Schuchmann, 133 Mo. 111.

In our opinion then the city under its charter had the power to license and regulate the business of plumbing, unless in so doing, it violated the Constitution of the state in interfering with the constitutional right of the defendant to his natural rights to the enjoyment of the gains of his own industry, and deprived him of his property without due process of law. The natural right to health, liberty and pursuit of happiness secured by our Constitution and Bill of Rights is not an absolute right. The individual must sacrifice a part of his particular interest if the sacrifice is a necessary one in order that organized society as a whole shall be benefited. The restraint of personal action is justified when it obviously tends to the protection of the health and comfort of the community and the individual’s constitutional right is not thereby violated. While there may be some cases to the contrary, the great weight of authority in this country is to the effect that the business of plumbing is so intimately connected with the public health, especially in large centers of population where scarlet fever, typhoid fever, diphtheria and other diseases ai~e apt to become epidemic, as to be the proper subject of police regulation. [People ex rel. v. Warden, 144 N. Y. 529; State v. Gardner, 58 Ohio St. 599; Douglas v. People ex rel., 225 Ill. 536; State ex rel. v. Justus, 90 Minn. 474; State ex rel. v. Benzenberg, 101 Wis. 172; Caven v. Coleman, 96 S. W. 774.] The right of a citizen under our Constitution to follow any legitimate business, oecupation or calling which he may see fit to engage in, and to use such right as a means of livelihood, is fully secured, but it is subject to the paramount right of the State to impose upon the enjoyment of such a right a reasonable regulation which the public welfare may require.

In People ex rel. v. Warden of the City Prison, 144 N. Y. 529, it is said: “We know that important plumbing work calls for plans and designs and requires skilled supervision. It is some guaranty of these requirements being met, that the plumber employed upon the particular work, and who must employ plumbers and assistants in carrying out the work-engaged upon, is competently certified, and therefore' held out to be skilled and capable in his business. The layman in his ignorance is obliged to put some trust in the plumber he engages; for the plumber’s work is not only one calling for the exercise of skill, but it is done in places which are dark, or more or less inaccessible. The Legislature, in creating a system by which [are made known] the qualifications of plumbers who propose to have work performed by others under their direction, as it seems to me, aids the citizen in an important degree in placing his confidence, and furnishes some safeguard against the performance of bad and unsafe work. That the men employed by the master plumber may prove untrustworthy in practice, or may neglect the work committed to them, certainly can furnish no ground for attacking the purpose of this statute; for the presumption and the natural probability are the other'way, that a master plumber who has been certified by the board will exercise care in the selection of his employees, and that he will be competent to see' and correct their faults and omissions. Every reason, in my opinion, which bears upon the citizen’s comfort and health, demands that we sustain this statute as a step in the right direction.”

In State v. Gardner, 58 Ohio St. 599, the Supreme Court of Ohio, in considering the right of the Legislature to regulate the business of plumbing and provide for the license of plumbers, said: “True it is that the business of the plumber is not ranked with the learned professions and that much of his work is mechanical merely, calling for the exercise of deftness of the hands rather than the possession of scientific knowledge. Yet a certain degree of training and experience is absolutely necessary to render one intelligent as to the ground work of his calling as well as competent and skillful in its exercise. He is required to put into our dwellings and public buildings tanks, pipes, traps, fittings and fixtures for the conveyance of gas, water and sewage, which require, among other essentials, the keeping out and protection against gases which are destructive of health and not infrequently of life itself. That it is of the highest importance that the drainage and sewerage of our public buildings and private tenements should be as skillfully planned and executed as the modern standard of science admits, would seem not to be open to question. . And -surely it is reasonable to suppose that one who has been educated to understand the scientific principle necessarily involved in work of this character, and to comprehend the reasons and teachings of experience upon which it is based, and the evil results which may follow neglect to observe it, will be more likely to provide the needful safeguards than one who is ignorant upon the subject.”

We regard the business of plumbing as so intimately connected with the public health and the comfort of the citizens - that there ought not to be any doubt that its regulation falls within the power of the Legislature in the exercise of its police power. The ordinance does not restrain individuals from working as plumbers; it simply requires that the man who holds himself out to do this important work shall be fitted for it. and the ordinance imposes no unreasonable burden upon him. In this connection it need only be stated that it has been decided in various cases in this court that a charter power of a freehold city, like Kansas City and St. Louis, under our Constitution, has all the sanction of a legislative enactment by tbe Legislature. We are of tbe opinion that tbe ordinance was clearly within the powers of the city conferred upon it by its charter and that it is perfectly reasonable regulation.

That the fee in this case is a mere license fee, being one dollar per year, we think is too obvious for any discussion. It is not a tax in any sense of the word, nor is it intended as such. Its amount on its face demonstrates that it is simply enough to cover the proper charges for the issuing of the license certificate. The ordinance was not intended as a revenue measure, and hence section 6256, Revised Statutes’ 1899, has no application to it.

The contention that the ordinance conflicts with the Fourteenth Amendment to the Constitution of the United States, which provides that no state “shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,” etc., is, we think, without basis. The ordinance applied, alike to every person whether master or employing plumber or journeyman plumber and operates equally upon all who come within its provisions. Certainly the ordinance does not operate unjustly against the plumbers of other cities in this State. Section 7 thereof provides for the issue, without examination or examination fee, of a certificate to every plumber desiring to work at or engage in the business of plumbing,, who has been duly licensed by the examining board of any other city in the state. And this right has been accorded them by the city.

In our opinion the petitioner was properly convicted for working at the business of plumbing, without first having been licensed, and accordingly it is ordered that he be remanded to the custody of the lawful keeper of the workhouse of the city of St. Louis.

Burgess and Kennish, JJ., concur.


author: GRAVES, J.

text:
    ALICE EMMERT v. MAX ALDRIDGE et al., Appellants.
    Division One,
    November 30, 1910.
    1. RES ADJUDICATA: Quieting Title: Basing Interest on> Another Right in Partition. An adjudication of a defendant’s interest in lands in a suit to quiet title is binding upon him in a subsequent suit in partition. Whatever avenue of evidence-through which the trial court could have seen title in him should have been opened in that suit, and if not opened then he cannot have it opened in any subsequent suit. If the court in that suit decreed that he was the owner of the dower and homestead of a widow for and during her natural life, he cannot in the partition suit be heard to contend that her husband' acquired the property in 1857, and that under the law of 1865 her homestead, upon his death, was an absolute estate in fee.
    2. -: Reopening Abstract Proposition. Where the decree in the suit to quiet title, unappealed from, adjudged the homestead to be a life estate, the court will not, in a subsequent suit in partition, determine whether the widow’s homestead in land acquired by her husband in 1857 was a life estate or a fee. Whether it was ttie one or the otheh, the defendant, who acquired the homestead by purchase, was adjudged by that decree to have only a life estate, and can in no event be adjudged to own a larger estate.
    Appeal from Schuyler Circuit Court. — Ho». Nat M. Shelton, Judge.
    Affirmed.

      Fogle S Fogle for appellants.

      Higbee S Mills for respondent.
   GRAVES, J.

The present action is one in partition seeking the division of one hundred and twenty acres of land in Schuyler county. The petition avers that one Charles Aldridge died in 1903 seized of this land, and then charges that the plaintiff and defendants are the heirs at law of the said Charles, and such persons as have purchased from his widow and heirs at law. The respective interests of children and grand children are pleaded and set out. The prayer is for the sale of the premises, and partition of the proceeds. In the petition it is averred that the defendant Lewis Starhuck had, since the death of Charles Aldridge, acquired the homestead interest of the widow and whatever right some of the heirs had in the property.

By answer, defendant Max Aldridge admits that he has parted with his interest to defendant Starbuek.

The answer of Starbuek and the reply really make the issues in the case.

Starbuek, by answer, pleads (1) a general denial, (2) that he is the absolute owner of one forty which he describes, and (3) that he owns in fee three-elevenths of the other two forties.

By prayer he asks the court to abate this suit until he can try the rights of title to the forty claimed absolutely by him, and further asks that, if this request be refused, then all his interests be set off to him in contiguous parts.

By amended answer, Max N. Aldridge claimed to have bought the interest of two of the heirs since the institution of the suit.

The reply is short and best speaks for itself thus:

“Plaintiff for reply admits that defendant Star-buck is the owner of three-elevenths of land described in the petition by having acquired the interests of Max Aldridge, Irwin L. Aldridge and Charles L. Aldridge, but denies that he has any other or greater interests in said lands. .
“Plaintiff denies that the defendant Max Aldridge has acquired the interests of Ann I. Munn or Hannah M. Matley in said lands.
“Plaintiff avers that the several interests of the parties to this action were ascertained and determined by this court by the judgment rendered in the case of Wm. F. Aldridge et al. vs. Aldridge et al. at the May term of this court, 1907; that by said judgment it was duly determined that defendant Starbuek bad three-elevenths interests in said land and no more. ’ ’

Tbe decree of tbe circuit court referred to in tbe foregoing reply was one entered upon a retrial of tbe cause after an opinion of this court in tbe recent case of Aldridge v. Aldridge, 202 Mo. 565. Tbe original suit was one to quiet title under section 650. In that case Starbuek was one of tbe defendants and litigated tbe case. The details can be gathered from our recent opinion.

Tbe part of tbe decree upon retrial of tbe cause which strikes at tbe rights of Starbuek, thus reads:

“Now on this 7th day of May, 1907, this cause again coming on for bearing, tbe parties, plaintiffs and defendants, appear, and in obedience of tbe mandate of tbe Supreme Court reversing the judgment of this court rendered in this cause on May 13, 1904, saio. judgment is set aside, and tbe cause being submitted to tbe court, after bearing all tbe evidence tbe court finds that Lewis M. Starbuek is tbe owner of tbe homestead and dower estate of Amelia J. Aldridge, widow of Charles Aldridge, deceased, in tbe premises described in plaintiff’s petition, to-wit, northeast one-fourth of southwest quarter and northwest one-fourth of southeast quarter of section 3, and northeast one-fourth of southwest quarter of section ten, township sixty-four, range fourteen, in Schuyler county, Missouri, for and during tbe life of Amelia J. Aldridge, and that subject to said homestead and dower tbe parties hereto are each seized in fee of tbe following undivided interests respectively in said premises, to-wit: William F. Aldridge, Alice Emmert, whose full name is Charity Alice Emmert, Elsie A. Meeker, Ohio R. Meeker, Anna I. Munn, Hannah M. Matley, and Solomon G-. Aldridge of an undivided one-eleventh part thereof ;that EarlM. "Wray and Ellsworth C. "Wray are each seized of an undivided three-elevenths parts of said premises, and the homestead and dower interests aforesaid. It is therefore considered and! adjudged that said several parties hereto- are each seized of said respective interests in said premises, as aforesaid, and it is further adjudged the plaintiffs recover the costs of this action from defendants and that execution issue therefor.”

This decree was never appealed from and was pleaded and placed in evidence in the partition case now before us.

From the record it appears that Starbuek is claiming the absolute title to forty acres of the land because this particular forty was acquired by Charles Aldridge in 1857, and that Charles and his wife Amelia lived upon it as their homestead since that time to the death of Charles in 1903. The exact contention is briefly stated bv counsel thus:

“Lewis Starbuek now contends that he is the owner in fee of the above described forty acres of land for the following reasons:
“(a). Under the laws of Missouri of 1865, the wife of Charles Aldridge was entitled to a fee in her homestead interests in said land.
“(b). Subsequent enactments of the Legislature of Missouri could in nowise affect the interests Amelia Aldridge had in the lands of her husband acquired prior to the date of said enactments.
“(c). Having conveyed all her homestead rights to defendant, Starbuek, he is therefore entitled to the fee in the described forty acres of land.”

Plaintiff contends the title was fully adjudicated by the former decree.

The result of the trial nisi resulted in a decree of partition as prayed for by the plaintiff’s petition, defendant Starbuek appealing to this court upon the one question just hereinabove quoted from brief of,his counsel. The question as to the abatement of the .-nit until his title could be tested by ejectment seems to have been lost sight of in the trial below and is not pressed here. The plea of abatement seems to have been waived and to have dropped out. of the case. Plaintiff, as above stated, among other things urges former adjudication.

I. One sufficient answer may thus be made to the contention of the defendant, Starbuek. In the former suit to declare title the trial court by its decree above quoted undertook to and did'adjudicate all the interest that Starbuek had in this property. In such decree his interest is clearly and thoroughly defined by the court. The purpose of the suit under section 650 was- to have his interests determined and. they were determined. This decree, unappealed from, as it is, should end the matter. It cannot be attacked in this, a collateral proceeding.

Defendant Starbuek, however, in the course of the trial urged that the question he now urges here was not litigated in the former suit. That is to say, he now contends that the question as to whether or not he took an absolute title to this homestead forty acres was rot litigated in that case. It is useless to go over the old' case to see just what was litigated. The final judgment shows that Starbuek’s title was litigated. If Starbuek neglected to open up to the trial court one avenue of evidence through which said avenue the trial court could see title in him, it is too late to urge it now as against this plea of res adjudicatei.

In the recent case of Spratt v. Early, 199 Mo. l. c. 500, this Court In Banc said: “What is urged in the present action could have been urged in the former action. The first action involved the whole lot, and this a part of the lot. The parties are identical; and the exact contention made in this suit could have been made in the other. Plaintiff did not deem it proper, for reasons perhaps best known to himself, to make the contention. That he could have presented the matter goes without question. "When evidence was introduced as to the homestead rights of Mrs. Duffy, for the purpose of disrobing the conveyance of the alleged fraud, the plaintiff could have shown and should have shown that there was an excess over, and above the homestead interest, which could be impressed with the fraud. Had he done so, this court would have said so in the former opinion. Parties cannot be permitted to try their cases by piecemeal. Whatever should have been in the first case, for the purpose of passing upon the question of former adjudication, will be considered to have been there.”

In the Spratt case, we called attention to the ease of Donnell v. Wright, 147 Mo. l. c. 647, whereat Judge Brace for the court reviewed the case law upon the subject, and succinctly announced the rule thus: " The plea of res adjuclicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

We therefore say that when Starbuck was called into court in the'case under section 650 to have his title ascertained and determined he should have disclosed to the court all of his avenues of title whatever they may have been. If he had title to this one forty acres by reason of the homestead act of 1865, and the deed from Mrs. Aldridge, it was his duty to have urged the matter to the court at that time. Under the rule the matter has been as fully adjudicated as if it had been specifically tendered and adjudicated. It was but one method by which he could show his alleged title to the court. A litigant having several defenses to plaintiff’s claim of title, can not split them np and litigate them by piecemeal in several different suits.

The plea of former adjudication in this case is good, and within itself requires the affirmance of the present judgment.

II. But let us make another suggestion upon the question of res adjudicata before disposing of defendant’s contention. In the old case under section 650 defendant claimed and was adjudged title in fee simple by the lower court. He rested his title upon two documents, (1) a document by which Charles Aldridge purported to convey to Amelia Aldridge the one hundred and twenty acres for life, with remainder to a son, Charles L. Aldridge, and (2) a deed from Amelia, the widow, and Charles L., the son. By our opinion, 202 Mo. l. c. 575, the first instrument was held void. If, therefore, when the case came up for retrial in the circuit court defendant had other claims of title he would be derelict in not urging them.

Defendant contends that under the homestead act of 1865 the widow had a vested right to a peculiar prospective homestead interest, which subsequent legislation as to homesteads could not change. It may he that an interesting discussion could be made on the point, but why make it, if we are right in the conclusions reached in our first paragraph. If we reach a conclusion adverse to the contention the result is an affirmance, and if we reach as a result a conclusion favorable to defendant’s contention on this abstract question, yet the result is an affirmance of the judgment. We are so well satisfied with the views expressed on the question of res adjudicata, that we will leave a discussion of the vested-right question to a case where it becomes the sole determining issue.

III. Another interesting feature of the vested-right question in this particular case might be suggested. Under the admissions, Charles Aldridge acquired and settled upon this land in 1857. He and his wife-occupied the land to 1903, when Aldridge died. Our first exemption statute relating to the wife’s interest in the homestead seems to be section 11 of the Act of March 23, 1863. [Laws 1863, p. 23.] Under this section she only took a life estate. Then came the Act of' 1865 and later the Act of 1875 and its subsequent amendments. Note then that when Mrs. Aldridge actually settled upon this land as a prospective homesteader she had no homestead rights. Then the Act of' 1862-3 gave a life estate only. Then came the Act of 1865 giving a fee estate, and then the Act of 18-75 and subsequent acts returning to a life estate.

Quaere: When did the vested right of Mrs. Aldridge attach, if there be such a thing as a vested right in a prospective future homestead for the wife? We leave the suggestion with counsel.

Upon the whole this case has been well tried and the judgment will be and is affirmed.

All concur.