author: WOODSON, P. J.

text:
    LUKE F. QUINN, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.
    Division One,
    December 6, 1913.
    1. PEREMPTORY INSTRUCTION: Limitation: Estoppel: Some Evidence. In a suit by the record owner of lands to recover damages for its appropriation by a - railroad company under a permit from tbe city, a peremptory instruction to find for plaintiff should not be given, where there is some evidence to support the plea that the. city had acquired title by limitation or prescription, even though the attempt by the city to condemn it for street purposes was void. Nor should the instruction. be given if there is also evidence to support defendant’s plea of estoppel.
    2. PLEADING: Amendment After Instructions. The statute is very liberal in permitting amendments of pleadings to conform to the evidence: and it is permissible to permit defendant in a law case to amend its answer to that end, after the instructions are given and before the case is submitted, where plaintiff is not surprised or injured by said amendment.
    3. LIMITATIONS: Evidence: Color of Title: Street: Void Condemnation. Proceedings to condemn private land for a street, may be void, because the assessment of damages and the-report were made, not by the three commissioners appointed' by.the court, but by three other persons; yet, if acquiesced in and the city thereafter used the land for street purposes, .they constitute color of title under the issue of limitations, and are competent evidence to fix the boundary lines of the street.

      4. -: -: Petition for Railroad: Trespasser: Estoppel. And a petition signed by the landowner, after the city had taken possession of the land in pursuance of said void condemnation proceeding, praying that defendant railroad company be granted the use of said street for its tracks, is competent evidence tending to show that said landowner (plaintiff) understood said strip of ground to be a public street and dealt with it as such, and therefore as bearing upon the issue of estoppel pleaded, and also to show that the railroad company was not a trespasser.
    5. -: Instruction: Necessary Elements. If the city used the strip of ground for more than ten years as a public street, tinder claim of right, and improved the same, it became a public street by prescription or adverse possession, although the attempted condemnation proceeding was void; and where that possession was actual, open, exclusive, notorious and continuous, an instruction telling the jury that “if the land had been used by the public as one of the public streets of the city, and that the same had been opened and improved by the city council” then it was “a public street of said city” does not contain reversible error; and neither is another instruction telling the jury that “if for more than ten years prior to the bringing of this suit the land in controversy had been used by the public as one of" the public streets of the city and said use had been continuous and uninterrupted; then your verdict should be for the defendant,” reversible error, though it does not as fully express the elements of adverse possession as might be.
    6. ESTOPPEL: Use of Street. Where the city, in pursuance to condemnation proceedings, void because the assessment of damages and the commissioners’ report were made, not by the three commissioners appointed, but by three strangers, took possession of the piece of land and thereafter improved it and it was used by the public as a street, evidence that thereafter plaintiff, the owner of the land, petitioned the city council to grant to defendant railroad company the use of the street for its tracks, and made conveyances to it of other near-by lands upon condition that it construct thereon a suitable station building, which was done at a large expense, authorizes the court to peremptorily tell the jury to find for defendant, in his suit to recover from it the value of the land used by it for its tracks in the street.
    Appeal from Butler Circuit Court. — Hon. J. G. Sheppard, Judge.
    Affirmed.

      Ernest A. Green for appellant.
    (1) The court erred in refusing to give to the jury plaintiff’s instruction numbered one in the nature of a peremptory instruction to find for the plaintiff; there was no evidence whatever to sustain the defendant’s defense that the strip of land in controversy had become a street by user ¡and therefore, there was no defense to be submitted to the jury. 28 Cyc. '832, 841, 853; Reed v. Erie, 79 Pa. St. 346; Knapp & Co. v. Railroad., 126 Mo. 35; Sec. 9472, R. S. 1899; Sikes v. Railroad, 127 Mo. App. 326; State v„ Macey, 72 Mo. App. 427; Lemore v. McNelly,, 56 Mo. App. 556; Mitchell v. Railroad, 116 Mo. App. 81; Seventeenth St. v. Railroad, 189 Mo. 245; Thomas v. Hunt, 134 Mo. 392; Lack-land v. Railroad, 31 Mo. 180; Transfer Co. v. Railroad, 111 Mo. 666. (2) The court erred in giving to the jury defendant’s instructions numbered 2 and 3; there was no testimony whatever to support the instructions, and in addition, some of the elements necessary to constitute a street by prescription are left out of the instructions, while the instructions also submit mixed questions of law and fact to the¡ jury. State v. Macey, 72 Mo. App. 427; Collier Estate v. Supply Co., 180‘ Mo. 362; Seibert v. Railroad, 188 Mo. 671; Sikes v. Railroad, 127 Mo. App. 334, 37 Cyc. 21; Dow v. Railroad, 116 Mo. App. 555 ; Lackland v. Railroad, 31 Mo. 180; Brown v. Scruggs, 141 Mo. App. 632; State v. Thompson, 91 Mo. App. 329; Harrison v. Franklin, 126 Mo. App. 376; G-hio v. Railroad, 125 Mo. App. 710!; Sec. 5861, R. S. 1899 ; Sec. 9258, R. S. 1909. (3) The court erred in giving to the jury defendant’s instruction numbered four; there is no question of estoppel in this character of action and, therefore, the instruction does not correctly declare the law applicable to this character of action. Dodd v. Railroad, 108- Mo. 586; Childs v. Railroad, 117 Mo. 430; Searritt v. Railroad, 127 Mo, 303; Secs. 5855, 5861, R. S. 1899; Secs. 9250, 9258, R. S. 1909; McReynolds v. Railroad, 34 Mo. App. 581; Pratt v. Railroad, 130 Mo. App. 183; Eitelgorge v. Building Ass’n, 69 Mo. 52; Spurlock v. Sproule, 72 Mo. 503; Mat-lock y. Railroad, 198 Mo. 495; Blair v. Railroad, 92 Mo. App. 555; Miller v. Railroad, 162 Mo. 424; Jackson v. Railroad, 54 Mo. App. 636; Railroad v. Railroad, 222 Mo. 487; Burke v. Adams, 80 Mo. 504; Pnovolt v. Railroad, 57 Mo. 256, 69 Mo. 633; Baker v. Railroad, 57 Mo. 265; Walker v. Railroad, 57 Mo. 275; Griswold v. Railroad, 8 Mo. App. 582; Allen v. Railroad, 84 Mo. 651; Ring v. Bridge Co., 57 Mo. 496; Cory v. Railroad, 100 Mo. 282; Bradley v. Railroad, 91 Mo. 493; Knapp v. Transfer Co., 126 Mo. 26; Webster v. Railroad, 116 Mo. 114. (4) Tbe court erred in admitting evidence over tbe plaintiff’s objection, as to an estoppel on part of tbe plaintiff. Tbe petition to tbe city council and tbe deed to tbe Southern Missouri and Arkansas Railroad Company, signed by plaintiff, were both • incompetent. While plaintiff could be estopped by bis action in signing those papers from maintaining ejectment, be would not be estopped to maintain this kind of an action. Dodd v. Railroad, 108 Mo. 586; Childs v. Railroad, 117 Mo. 430; Scarritt v. Railroad, 127 Mo. 303; McReynolds v. Railroad, 34 Mo. App. 581; Blair v. Railroad, 92 Mo. App. 555; Railway v. Railroad, 222 Mo. 487; Provolt v. Railroad, 57 Mo. 256, 69 Mo. 633; Baker v. Railroad, 57 Mo. 265; Ring v. Bridge Co., 57 Mo. 496 ; Cory v. Railroad, 100 Mo. 282; Bradley v. Railroad, 91 Mo. 493; Griswold v. Railroad, 8 Mo. App. 582; Allen v. Railroad, 84 Mo. 561; Walker v. Railroad, 57 Mo. 275; Webster v. Railroad, 116 Mo. 114. (5) Tbe court erred in admitting, over plaintiff’s objection, testimony tending to show that the strip of land in controversy bad become a street by prescription, inasmuch as tbe answer does not in any manner plead that this strip bad become a street by prescription; tbe court also erred in permitting defendant to amend its answer after tbe dose of all tbe evidence in tbe case, so as to plead user of the strip by defendant and its predecessors since 1901. See. 9472, R S. 1899'; Sikes v. Railroad, 127 Mo. App. 326; State v. Maeey, 72 Mo. App. 427; Longworth v. Sedevic, 165 Mo. 221; State v. Tran-sue, 131 Mo. App. 323; State v. Muir, 136 Mo. App. 118; State v. Craig, 79 Mo. App. 412; State v. Pullen, 43 Mo. App. 6201; Harper v. Morse, 46 Mo. App>. 470; Levels v. Railroad, 196 Mo. 606; Sewing Machine Co. v. Philbrick, 70 Mo. 646; Harrison v. Hastings, 28 Mo. 346; Irwin v. Chiles, 28 Mo. 576. (6) The court erred in admitting in evidence, over the plaintiff’s objection, the ordinance and the other proceedings pertaining to the attempted condemnation by the city of the strip of ground in controversy, for street and sewer purposes. The court also erred in admitting in evidence, over plaintiff’s objection, the ordinance granting a right of way to the Southern Missouri and Arkansas Railroad Company over Sewer street. St. Louis v. Gleason, 93 Mo. 33; Secs. 5855, 5861, R. S. 1899; Secs. 9250, 9258, R. S. 1909; Tarkio v. Clark, 186 Mo. 298; In re Bledsoe Hill, 200 Mo. 643: Secs. 4870; 4857, 4897, 4940, R. S. 1879.

      W. F. Evans and W. J. Orr for respondent.
   WOODSON, P. J.

The plaintiff instituted this suit in the circuit court of Butler county against the defendant, in January, 1909, to recover the sum of $2500, compensation for a strip of ground he alleges belonged to him, and that the company wrongfully appropriated for its tracks in the month of March, 1901. Said land is located in Poplar Bluff, Butler county, and is particularly described in the pleadings and evidence.

The pleadings are not assailed.

The petition claims compensation for the wrongful taking of property, and the answer pleads two defenses, first, the Statute of Limitations and.second, an estoppel.

A trial was had before the court and jury, which resulted in a verdict and judgment for the defendant; and after taking the necessary preliminary steps therefor, the plaintiff duly appealed the cause to this court.

The facts of the case, with one exception, which will be presently noted, are undisputed; and even that is scarcely disputed.

The plaintiff at all the times mentioned was and is the owner of the west half of lots 77a and 77b of the original town of Poplar Bluff. His ownership thereof antedates the year 1886. In that year the city council of that city attempted to condemn a. strip of ground forty feet wide through the center of those lots, as well as others, for a street and right of way for a sewer. An ordinance for that purpose was duly enacted by the city council, and the mayor, in pursuance of said ordinance, appointed a commission of three resident freeholders to assess the damages and benefits that would result from said taking; but instead of the commissioners appointed for that purpose, three other persons performed that important duty, and filed a report with the clerk of the said city.

No objection was made to said report by anyone; the report was confirmed and the street was duly laid out and presumably the damages and benefits levied were paid and collected.

Shortly thereafter the city, by ordinance duly enacted, ordered the construction of a sewer in said street, cf certain dimensions, and of certain materials. In pursuance thereof s,aid sewer, a wooden or box sewer, was constructed, and was used as such until replaced by a stone sewer many years later.

The question in dispute; before mentioned, is, was this street ever used as such by the traveling public ,of Poplar Bluff? The evidence upon this point is also practically undisputed, for all the evidence on both sides shows that it was never used for the passage of wagons, carriages or other vehicles, but was generally and extensively used all the time by pedestrians.

In March, 1901, the plaintiff and other property owners, owning a majority of the front feet of “the property abutting upon said street, known as ‘Sewer street,’ ” petitioned the city council of Poplar Bluff to grant to the Southern Missouri & Arkansas Railway Company the right to lay its tracks along and to operate its trains over said strip of ground.

Said petition was in words and figures as follows:

“To the Honorable, the Mayor and' Council of the City of Poplar Bluff, Missouri. ‘ ‘ Gentlemen:

“We the undersigned owners of a majority in front feet of the real estate abutting and fronting on Sewer street and the alley north thereof in Kinzer and Mengel’s Addition, hereby respectively petition and request your honorable body to grant to the Southern Missouri and Arkansas Railway Company by suitable ordinance the right to lay, operate and maintain railway tracks in said Sewer street .and said alley.

“Names. ‘ Front feet.

“#L. F. 'Quinn .........................-417

Byrd Duncan................■.......... 40

T. D. Ferguson........................ 285

J. J. Frank .......................... 232%

J. L. Dalton, Admr..................... 132%

L. B. Walker, (77c) .................... 104%

Ruth & M.engel Realty Co, H. I. Ruth Pres. 323%

J. R. Hogg .,........................... 45%

City of Poplar Bluff, per A. W. Davidson, Mayor........................ 104

‘ ‘ Filed' March 30th, 1901.

“W. A. Spence, City Clerk.”

*This appellant.

This petition was filed with the council in March, 1901, and that body passed an ordinance as requested, granting to the railroad company the right to lay its tracks along said street.

The defendant through mesne conveyances deraigns title, if any it has, to this land, through the Southern Missouri & Arkansas Railway Company.

The ordinance is quite lengthy, consisting of fifteen sections, prescribing the location of the main tracks and the number of sidetracks, depot, and the character .thereof, the number and character of bridges and sewers; the number, character and location of grade crossings the company should construct and maintain; also the regulation of trains upon the streets of said city, and many other duties were imposed thereby, not material to the questions here involved.

This ordinance was approved March 30, 1901.

In April of the same year the plaintiff conveyed to the company additional lands adjacent to said Sewer street, for railroad purposes, which are described in the deed, and upon the conditions therein stated. That deed is as follows:

“$1.00 and divers other good and valuable considerations to' us moving,

Luke F. Quinn and Mary P. Quinn, his wife, to

Southern Missouri and Arkansas Railroad Company,

‘ ‘ Grant, bargain and sell unto the Southern Mis-' souri and Arkansas Railroad Company, the following parcels of land in the city of Poplar Bluff, county of Butler, State of Missouri, to-wit :

“Sixty feet wide, fronting 208.05 feet on Sewer street, on the east, sixty feet on Maple street on the north, and sixty feet on Cherry street on the south, being a part of lot 77a, also piece of land described as follows: Beginning at a point at the northwest corner of Maple street and .Sewer street, and running thence northerly on the westerly line of Sewer street to the south, line of Ceda.r street, thence westerly on the south line of Cedar street twelve feet, thence southwesterly to a point sixty feet west of the west line of Sewer street and one .hundred feet north of the north line of Maple street, thence southerly on a line parallel to and sixty feet distant westerly from the west line of Sewer street one hundred feet, thence easterly on the north line of Maple street sixty feet to the point of beginning.

“Also beginning at the southwest corner of Sewer street and Cherry street and running thence westerly on the south line of Cherry street sixty feet, thence southerly curving to the westward on a line six feet distant westerly from and parallel to the center line of the proposed sidetrack of the S. M. & A. R. R. Co. two hundred and twenty feet, more or less, to the northerly line of Ash street, at a point six feet distant westerly from the center line of main track of said railroad, thence easterly on said northerly line of Ash street to a point seven feet distant from said center line of said main track, as now located, measured at right angles, thereto, thence northeasterly on a line parallel to and seven feet distant easterly from said! center line of main track, two. hundred and twenty-four feet, more or less to place' of beginning.

“To have and to hold unto said railway company forever, subject, however, to the following conditions:

“1st. The property herein granted is granted for the use as a railroad and on condition that the grantor be released from his subscription of $500' in freights.

“2d. The said railway company shall erect and maintain on the south end of lot 77a a suitable station building of modern architectural design, similar to the railway station of the said company at Cape Girardeau, Missouri.

“3d. The said company shall, at its own expense, remove from the land herein conveyed, the buildings located thereon at the present time to such other ground in the neighborhood as the said L. F. Quinn shall select.

“4th. That whenever the property herein conveyed shall cease to be utilized for the purposes herein-above set out for a period of six months then this deed shall be void and land herein granted shall revert to and become the property of the said L. F. Quinn.

“Acknowledged April 9', 1901, by Luke F. Quinn and Mary P. Quinn, his wife.”

The railroad company in 1901 took possession of the strip granted to it by the city, and the additional grounds deeded to it by appellant, and constructed its main line along the strip granted to it by the city, and built its depot on the other lands deeded to it by appellant, and in all respects complied with all the provisions of said ordinance.

Council for the plaintiff timely objected to the introduction in evidence of the proceedings had to condemn Sewer street, the petition and ordinance authorizing the company to construct and maintain its tracks and depot upon the land mentioned and the deed from plaintiff to the company, all of which were by the court overruled; and timely exceptions were duly saved.

At the conclusion of the introduction of all the evidence, counsel for plaintiff requested the following peremptory instruction telling the jury to find for them, viz.:

“The court instructs the jury that under the law and the evidence in this ease you will find- the issues for the plaintiff and assess his damages at such sum as you may believe, from the evidence was the reasonable value of the strip of ground in question at the time it was appropriated by the. Southern Missouri and Arkansas Railroad Company, not, however, to exceed the sum of two thousand and five hundred dollars.”

'Which instruction the court refused to give, and to which action of the court in refusing to give the same, plaintiff at the time duly objected and excepted.

And thereupon, the court gave to- the jury the following instruction on part of plaintiff:

“The court instructs the jury that unless you find and believe from the evidence in this case that the strip of land in controversy in this case was used as a public street of said city .for a period of more than ten years continuously prior to the institution of this suit; and unless, in addition to the use of the street by the public for the period of ten consecutive years, you shall further find that there had been public money or labor expended thereon by said city of Poplar Bluff for such period, you will-find the issues for the plaintiff and assess his damages at such sum as you may find to have been the reasonable value of the strip of land in controversy at the time of its appropriation by said Southern Missouri and Arkansas Railroad Company, not exceeding the sum of two thousand five hundred dollars.”

And, thereupon, over the objection of plaintiff, the court gave to the jury the following instructions on part of the defendant:

“1. The court instructs the jury that if you shall find and believe from the evidence, that for more than ten years prior to- the 30th day of March, 1901, the land in controversy had been used by the public as one of the public streets in the city of Poplar Bluff, and that the same had been opened by and improved by the city council of said city, then said land was, on said 30th day of March, 1901, a public street of said city of Poplar Bluff.

“2. The court instructs the jury that if you shall believe and find from the evidence that for more than ten years prior to the bringing of this suit; that is to say, for more than ten years prior to the 22d day of January, 1909, the land in controversy had been used by the public as one of the public streets of the city of Poplar Bluff and that it has since the year 1901 been used by the defendant railroad company and its predecessors, and that such use by the public and by the defendant and its predecessors, has been continuous and uninterrupted for a period of more than ten years before the 22d day of January, 1909', then your verdict should be for the defendant.

“3. If the jury shall believe from the evidence that the land in controversy, on the 30th day of March, 1901, was one of the public streets of the city of Poplar Bluff, as explained in these instructions, and if you further find that on said 30th day of March, 1901, plaintiff signed a petition to the city council of Poplar Bluff, praying for an ordinance granting to the Southern Missouri and Arkansas Railroad Company, the predecessor of this defendant, the right to lay its tracks in said street, then plaintiff is estopped to claim damages in this action, and your verdict should be for the defendant.”

To the giving of which instructions on part of the defendant, plaintiff at the time duly excepted.

After said instructions had been given, the defendant, over the objections of plaintiff, by permission of the court, amended its answer by interlining the following words:

“And that said lands were used by the public as one of the streets of the city of Poplar Bluff and by this defendant and its predecessors continuously for more than ten years next before the bringing of this suit. ’ ’

I. The first legal proposition presented for de- . termination is, did the circuit court err in refusing to give appellant’s peremptory tnstruction telling the jury to find for him?

I think not; for the reason that there was much evidence tending to show that the city of Poplar Bluff had acquired' title to Sewer street under color of title by the Statute of Limitations or prescription, even though it be conceded that the condemnation proceedings mentioned were absolutely void. If that was true, which was a question for the jury, under the theory of the case taken by the trial court, -the plaintiff had no right, title or interest whatever in the strip of land in question. The Statute of Limitations in such cases, not only bars plaintiff’s right to a recovery, but transfers his title to the city as completely as if the conveyance had been made by deed, duly executed.

If that be true, the plaintiff would have no right to a recovery, even though it should be conceded the defendant had no right whatever to be in the street mentioned.

Moreover, said instruction ignores all the evidence introduced bearing upon the question of estoppel, which will be presently noted.

For both of these reasons the action of the trial' court in refusing said instruction was eminently proper.

II. It is next insisted that the court erred in permitting the defendant to amend its answer in the particular mentioned in the state- £ ment of the case.

This objection is untenable, for the reason our Statute of Jeofails is very liberal in regard to permitting amendments of pleadings to conform to the evidence. It was not only proper, but it was the duty of the court to permit the amendment to be made in furtherance of justice, especially since the record fails to show the plaintiff was surprised or injured by that action of the court.

III. The next complaint lodged against the trial is, that the court erred in admitting in evidence the record of the proceedings had in the condemnation of .Sewer street.

We suppose (for no other reason is assigned) the validity of those proceedings is assailed because the commissioners appointed by the mayor to assess the damages and benefits sustained by the property owners interested did not make the assessment required by the ordinance, but it was made by strangers to the proceedings.

We assume that said proceedings were on that account void, which I believe they are, and of no force or effect; nevertheless, all parties concerned acquiesced therein, from that day until the institution of this suit, some twenty odd years; during all of which time the city has been using the street for sewerage purposes, and as the evidence tended to show for street purposes proper. That being true said record was unquestionably admissible in evidence ¡as color of title, tending to fix the boundary lines of the street within which the railway tracks are located.

We are also of the opinion that the petition signed by plaintiff and others, requesting the city to pass an ordinance granting the railway company permission to construct .its tracks and depot upon the ground in question, and the ordinance enacted in pursuance thereof, were admissible for two purposes: First, as tending to show that the adjacent property owners, including plaintiff, understood, believed and treated said strip of ground as a public street; and, second, for the purpose of showing that the defendant neither was a trespasser nor had wrongfully appropriated the property, to whomever it belonged.

The petition also bore upon the question of estoppel, which considered in connection with the deed made by the plaintiff to the company was strong evidence thereof.

We are, therefore, of the opinion that the court properly admitted all of the instruments in evidence.

IV. Counsel for appellant next challenge the correctness of the law as announced in instructions numbered one and two: First, because there was no evidence introduced upon which to predicate them; and, second, because they omitted' some of the elements that were necessary for the jury to have found before'they could have found for defendant on account of the Statute of Limitations.

Attending the first: This criticism is not well taken as there was an abundance of evidence tending to show, as stated in paragraph one of the opinion, in passing upon plaintiff’s peremptory instruction, that the city and defendant with its predecessors had been in the actual, exclusive, open, notorious and continuous possession of this strip of ground for twenty odd years.

The second criticism is equally unsound, for it is horn-book law, as stated in instruction numbered one, that if the city used the strip of land in question as a public street for more than ten years, under claim of right, as here, and improved the same., then it became a public street by prescription or adverse possession.

The same may be said of instruction numbered twio; which is more definite in telling the jury what uses are required to establish a street by prescription.

But independent of this, there is no dispute that whatever acts of possession the city, the defendant and its predecessors exercised over this land was actual, open, exclusive, notorious and continuous ever since 1886; consequently, the error complained of, if error it was, was absolutely harmless.

V. This brings us to the last error assigned, and that is: The circuit court erred in giving instruction numhered three for the defendant, telling the jury that if they found the, facts to be as stated therein, then they would find for the defendant. The basis of this assignment is that there was no evidence introduced upon which, to base the instruction.

We are unable to understand upon what ground this contention can be seriously urged.

The evidence is documentary, undisputed and unimpeached, showing that through the efforts of plaintiff and others, the defendant’s predecessor built its tracks upon the street in question, all believing it was a public street.

Plaintiff also conveyed other lands to defendant, adjoining the street, for track and depot purposes, all constituting its main tracks, switchyards and depot, which cost more than $25,000; yea, more than $50,000, if I correctly understand the record.

There was not only ample, evidence of an estoppel, but the court should have instructed the jury to find for the defendant on the ground of an estoppel.

Finding no error in the record, the judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: BLAIR, C.

license: Public Domain

text:
    THE STATE ex rel. SEEBERT G. JONES, CIRCUIT ATTORNEY OF THE CITY OF ST. LOUIS, v. THE HOWE SCALE COMPANY OF ILLINOIS, Appellant.
    Division One,
    December 6, 1913.
    1. APPELLATE JURISDICTION: Supreme Court: Constitutional Question: Construction of Statutes: Secs. 3039 and 3040, R. S. 1909. Whether or not the clause in Sec. 3040, R. S. 1909, providing that penalties for the violation thereof shall go to the revenue fund of the county in which the action shall accrue, conflicts with Sec. 8 of Art. 11, of the State Constitution, is not involved in an appeal from a conviction thereunder, and therefore the Supreme Court does not have jurisdiction of the appeal on the ground that a constitutional Question is involved.

      2. -:--: -: -: -: Who May Institute Suit. The question who is empowered to institute and maintain proceedings to punish violators of Secs. 3039 and 3040, R. S. 1909, prohibiting foreign corporations from doing business in this State without a license, is purely one of statutory construction, and is not of such character as to confer jurisdiction of an appeal upon the Supreme Court on the ground that a constitutional question is involved.
    3. -: -: -: -: -: Enforcement by Civil Action. The question whether Secs. 3039 and 3040, R. S. 1909, make provision for prosecuting a foreign corporation in a civil action, is a question of statutory construction and in no way involves a construction of the Fourteenth Amendment to the' Federal Constitution.
    Appeal from St. Louis City Circuit Court. — Ron. James E. Withrow, Judge.
    Transferred to St. Louis Court of Appeals.

      McPheeters & Wood and William B. Gilbert for appellant!
    (1) The court erred in overruling the demurrer because section 1026 is in conflict with article 11, section 8, of the Constitution, and void. All fines go to the school fund, notwithstanding the direction in a statute to divert them to other sources. State ex rel. v. Warner, 197 Mo. 664. Any action by the court (as here) which permits one not authorized by the Constitution to sue and recover a fine or penalty, violates this section and gives to the law purporting to authorize it an effect contrary to the Constitution. (2) The court erred in overruling the demurrer because this action violates the Fourteenth Amendment of the U. S. Constitution. The statutes of Missouri make no provision for prosecuting a foreign corporation in a civil action, and authorize no such process of law. The statutes of Missouri confer upon the St. Louis Court of Criminal Correction exclusive jurisdiction of misdemeanors, and the present action denies to defendant the equal protection of a trial by jury, etc., as provided for other alleged offenders.

      John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State,
    (1) Appellant contends that Sec. 3040, R. S. 1909, contravenes section 8 of article 11 of the Constitution, in that the penalty under the statute goes to the county revenue fund when the Constitution requires it to go to the county school fund. A part of the statute may be obnoxious to the Constitution and the remainder of the statute be valid. State v. Fulks, 207 Mo. 26; State v. Martin, 230 Mo. 1; 1 Lewis’s Sutherland’s Stat. Con., sec. 297, notes 10 and 11; State v. Bockstruck, 136 Mo. 359; State v. Newell, 140 Mo. 287; 1 Bishop’s New Crim. Law, sec. 932. (2) Sec. 3040, R. S. 1909, and other kindred statutes, are not technically criminal or penal statutes, but are strictly speaking, remedial, and exist under the police powers of the State.. 8 Cyc. 863-865:
   BLAIR, C.

This is a proceeding by the State of Missouri, at the relation of Seebert G. Jones, circuit attorney for the city of St. Louis, instituted in the circuit court of the city of St. Louis, against the Howe Scale Company of Illinois, a foreign corporation, for violating the statute (sections 3039 and 3040, R. S. 1909) prohibiting foreign corporations from doing business in this State without first securing a certificate or license authorizing them so to do. The judgment below was for plaintiff and the minimum punishment ($1000) was assessed against appellant.

The principal questions argued in the briefs relate to the jurisdiction of the circuit court of the city of St. Louis, the capacity of the plaintiff to sue and the right of plaintiff to proceed under section 3040 except by indictment or information. It is also contended (1) that the portion of section 3040 which provides that all sums collected for violation of sections 3039 and 3040 “shall go to the revenue fund of the county in which, the cause shall accrue,” is invalid by reason of being in conflict with section 8 of article 11, which provides that the “clear proceeds of all penalties, forfeitures and fines” shall belong to the school fund; and (2) that “under the Fourteenth Amendment to the United States Constitution, . . . neither plaintiff nor relator has any right to maintain this action. ’ ’

The amount involved is not sufficient to confer jurisdiction of this appeal upon this court and it remains to determine whether the character of the questions raised is such as to do so.

It is not contended that the invalidity of that provision in section 3040 which directs that recoveries under it shall go to the revenue fund of the county (in this case the city) invalidates the entire section and act or any other part of it. It is conceded it does not do so. It is beyond dispute that if the penalty fixed by section 3040 falls within the language of section 8 of article 11, it must, when collected, go into the school fund, but this is a matter with which appellant has nothing to do as it pertains merely to the disposition of the money taken from it, after it has been collected, and is not at all a thing which now concerns appellant. [State v. Newell, 140 Mo. 282; State ex rel. v. Warner, 197 Mo. l. c. 665.]

The question as to who is empowered to institute and maintain the proceeding authorized by section 3040 is purely one of statutory construction, and, consequently, is not of such character as to confer jurisdiction of this appeal upon this court. There is no debatable question involving the construction of the Constitution of this State raised in the record which can be considered on this appeal, and, as a result, no warrant for this court’s assuming jurisdiction can be found in this branch of the case.

It is said in the brief, however, that ‘ ‘ the statutes of Missouri, as cited under previous points (sections 3039 and 3040, R. S. 1909) make no provision for prosecuting a foreign corporation in a civil action, and authorize no such process of law,” and it is contended that, therefore, “this action violates the Fourteenth Amendment of the Constitution of the United States. ’ ’

It is not contended that a statute providing for the collection of a penalty by civil action or the application of a common law civil remedy would infringe any provision of the Fourteenth Amendment, so that the sole contention of counsel in this connection is whether the statute involved in this proceeding makes such provision. Whether or not it does is a question of statutory construction and in no way involves a construction of the Fourteenth Amendment. The suggestion that appellant is by the statute or this action denied the right of trial by jury has no basis in either the statute or the record and was never raised in the trial court and cannot be relied upon now. No other reason being suggested or appearing which authorizes the retention of jurisdiction of this appeal by this court, the case is transferred to the St. Louis Court of Appeals.

Brown, C., concurs.

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

All the judges concur.


author: LAMM, J. WOODSON, P. J.

text:
    MICHAEL WOLZ, Executor of KATE A. LOWEN, v. FRANKLIN VENARD et al.; ROBINSON and ATKINSON, Appellants.
    Division One,
    December 6, 1913.
    1. REFORMATION OF DEED: Mutual Mistake: Sufficient Pleading. To authorize a court of equity to correct a mistake in a contract, it must be mutual. But the pleaáer is not requireá in set terms to allege a mutual mistake. If he sets forth substantive facts by way of averments which necessarily mean mutuality of mistake, that will be sufficient. If the mortgagor alleges that he loaned the mortgagee a sum of money and by agreement between them the loan was to be secured by a mortgage upon a certain tract of land, and in pursuance thereof the mortgage was executed, but by mistake the land was misdescribed and not conveyed as agreed, the petition charges a mutual mistake, although it further avers that the draftsman of the deed erroneously inserted the wrong description, for that averment may be considered as merely supplementary and redundant.
    2. DEMURRER: Waiver. Where defendant demurred to the petition on the ground ofmultifariousness and a misjoinder of parties, and the demurrer being overruled answered over, he effectually waived those grounds.
    3. REFORMATION OF DEED: Mutual Mistake: Sufficient Evidence. Where the grantors in the deed of trust admit and the beneficiary testifies that it was agreed that the instrument was to describe a certain tract of land and by mistake another was described, there is such mutual mistake established as authorizes the court to reform the deed so as to make it express their real intention.
    4. -: Extent of Decree: Outside of Pleadings. A decree must respond to the issues and one outside of them is error. Where plaintiff brought suit to reform a deed of trust on the ground that by mutual mistake the land had been misdescribed therein, and there was nothing in the petition demanding the clearing up of the title of the mortgagor’s subsequent grantee except in so far as that was necessary to the reformation of the deed of trust, and there was not filed any cross-action or cross-bill as between said grantee and purchasers at invalid execution sales under valid justice’s judgments, and there was no averment in the answers that filled the office of a cross-action between said defendants or between other defendants, one of whom had made a warranty deed to the other, a decree which undertook to settle all claims between said grantee and his codefendants and canceled said warranty deed cannot stand. The decree should have stopped with reforming the deed of trust and adjudging that whatever .rights or claims defendants had under such judgments, executions and deeds were subject to the deed of trust as reformed.
    5. --: -: Cross-bill. A cross-action or cross-bill as between defendants must be germane to plaintiffs bill and in the nature of a defense in order to give jurisdiction to found a decree thereon.
    6. -: -: -: Quieting Title. Sec. 2535, R. S. 1909, does not authorize a chancellor to go outside the pleaded issues in his decree. That section is to be administered in conformity to the Code of Civil Procedure.
    7. EXECUTION: Issued Out of Wrong Court: Justice’s Judgment: Transcript to Another County. Where judgment’has been obtained in a justice of the peace court and a transcript taken to the circuit court of the county, execution should issue out of that court by its clerk, and not out of the circuit court of the county in which defendant’s lands lie; and if issued out of the latter court the sheriff has no legal authority to sell, the lands. Nor is the invalidity of his deed altered by the fact that a transcript of the justice’s judgment was filed in the county in which it was obtained, and then a transcript thereof filed in the county in which, the land lies.
    8. REFORMATION OF DEED OF TRUST: Sale Under Subsequent Judgment. A sale under a judgment obtained after plaintiff had brought suit to reform a deed of trust in her favor, and purchase by a party who had actual notice of the mistake in its description and was a defendant to her suit to reform, there being no fraud in her deed of trust making it subject to a creditor’s bill, does not affect her right to such reformation, for said judgment was not then a prior lien.
    9. COSTS: Not Assigned as Error. Unless the motion for new-trial assigns as error the taxing of the costs against defendants in plaintiff’s suit to reform and have foreclosed her deed of trust, the assignment on appeal will not be considered.
    10. JUDGMENT: Revivor. A judgment is revived, if at all, in the court rendering it, and on scire facias, and not in other courts and on other process. Sec. 2535, R. S. 1909, in spite of its comprehensiveness, does not serve the purpose of reviving or continuing the liens of judgments when such liens have expired or are about to expire.
    Appeal from DeKalb Circuit Court. — lion. A. I). Burnes, Judge.
    Reversed and remanded.

      Hewitt & Hewitt and E. G. Robison for appellants.
    (1) It is the well-established rule of pleading that every fact the plaintiff, in order to recover, must prove, must be pleaded and alleged in the pleading, so that the issue can be-made thereon.' Shohoney v. Railroad, 223 Mo. 671; Nervins v. Moore, 221 Mo. 357; Verdin v. St. 'Louis, 131 Mo. 151; Lantz v. Krug, 93 Mo. 513; Pier v. Heinrich, 52 Mo. 336; Murphy v. Wilson, 44 Mo. 317. The plaintiff having based her cause of action upon the mistake of the scrivener, in order to recover it was necessary to allege and prove he acted for both the parties to the trust deed. Brooking v. Straat, 17 Mo. App. 305; Benn v. Pritchett, 163 Mo. 572; Dougherty v. Dougherty, 204 Mo. 238; Meek v. Hurst, 223 Mo. 696. (2) The defendants’ demurrer to plaintiff’s evidence should have been sustained, for the reason that the evidence does not show a mutual mistake, but if anything, a mistake of some one who drafted the. trust deed at the instance and request of grantor Neff alone, which is not sufficient to have reformation by plaintiff. Brooking v. Straat, 17 Mo. App. 305; Benn v. Pritchett, 163 Mo. 560; Dougherty v. Dougherty, 204 Mo. 231; Meek v. Hurst, 223 Mo. 692. (3) The court erred in decreeing Elmer Neff to be'the owner of the land in controversy, even though the plaintiff’s trust deed should be reformed. He purchased it under the agreement, and according to the admitted and uncontradicted evidence Elmer Neff paid nothing for the land, and, if he fails in this suit is to pay nothing. Bailey v. Winn, 101 Mo. 655. (4) Three salés were had under judgment against Ransom Neff, and at each sale David Atkinson was the purchaser, and the last was a valid sale and conveyed all interest of Ransom Neff, if at the time of the levy he was the owner thereof. This is conceded by plaintiff and other defendants, who deny he was the owner. The appellants contend he was the owner and that the sale by Meek, sheriff of DeKalb county, on May 3, 1909, divested Ransom Neff of his title, and vested same in David Atkinson, which title vested in Joseph Robison under the covenants of warranty in the deed previously made by Atkinson to Robison. Sec. 2871, R. S. 1909. The court erred in not reviving the lien of the judgment of David Atkinson against Ransom S. Neff, and rendering judgment in Ms favor for same, as all parties were in court. R. S. 1909, sec. 2535.

      O. M. Shcmklin for respondent Elmer L. Neff.
    (1) The first and second sheriff’s, deeds to Atkinson were clearly void because of their dependence on an execution from the wrong court. Sec. 2166, R. S. 1909. (2) The deed from Ransom Neff and wife is regular and recites a valid consideration. It therefore conveyed the whole title to the land to Elmer Neff. (3) Whether Elmer Neff paid the whole or any part of the consideration recited in Ms deed cannot affect the sufficiency of the conveyance. The recited consideration cannot be impeached for the purpose of destroying the conveyance. Draper v. Shoot, 25 Mo. 202; Wishart v. Gerhart, 105 Mo. App. 116. (4) If the defendant Atkinson would deny the payment he must ground his denial on an allegation of fraud against himself as a creditor. This he failed to do, though Elmer Neff specifically pleaded his absolute title to the land by virtue of the deed from Ransom and his wife. Montgomery Co. v. Auchley, 103 Mo.-499; County of Montgomery v. Auchley, 92 Mo. 126; Jones v. Shepley, 90 Mo. 307; Saunders v. Blythe, 112 Mo. 5; Bobb v. Bobb, 7 Mo. App. 507.’ (5) Atkinson had no lien, since the liens of the justice transcript judgments had expired and the judgment obtained in the circuit court had never been certified to the DeKalb county records. Secs. 2125, 2164, 2165, R. S. 1909. (6) Elmer Neff thus having the title and Ransom having none, the third sheriff’s deed purporting to convey the interest of Ransom conveyed nothing. (7) The DeKalb Circuit Court had no jurisdiction to revive the judgments originally rendered in the circuit court of Buchanan and Andrew counties; nor did the appearance of the parties confer such jurisdiction, as it would be in direct contravention of the statutes. Sec. 2166, R. S. 1909.

      Wm. M. Fitch for respondent.
    (1) Appellant’s brief discusses at great length the question that the petition of the plaintiff fails to state a cause of action under the first count. The record shows that these appellants, as defendants below, had filed their answer; at the time of going to trial they withdrew their answers, and filed general demurrers; those demurrers were overruled by the court; these defendants did not stand on their demurrers, but instead of so doing, they refiled their answers and pro-, ceeded to trial. By this procedure on the part of these appellants the point raised by their demurrers was and is waived, and they will not be now heard to raise same. State ex rel. v. Bright, 224 Mo. 524; Duff v. Duff, 15.6 Mo. App. 247. It is likewise held that where a defendant filed a, demurrer, which was overruled, and he then answered over, he waived all questions relating to misjoinder and multifariousness in the bill. Hendricks v. Callaway County,. 211 Mo-. '536; Fuggle v. Hobbs, 42 Mo. 537. These defendants, by pleading over, going to trial, and trying the cause on the merits have waived their demurrers, and should not now be heard to raise same. (2) Two of the sheriff’s sales were absolutely void, and passed no title to David Atkinson; both of these sales were based upon a judgment rendered by a justice of the* peace in Buchanan county, a transcript thereof filed by the plaintiff therein in the circuit court of Buchanan county, and after-wards a transcript of that transcript was filed in the office of the clerk of the circuit court of DeKalb county. On this transcript so filed in DeKalb county, an execution was issued from the office of the clerk of the circuit. court of DeKalb county, and the first and second sales mentioned were had thereunder. These sales passed no title; the clerk of the circuit court of DeKalb county had no. power to issue an execution based on the transcript judgment. Sec. 2166, R. S. 1909. The third sale was made after this suit was filed and had been pending some months and David Atkinson and Joseph Robinson had been made parties defendant therein and had been duly summoned as such. But this sale was made in the face of the notices publicly given at the time by the plaintiff and the defendant Elmer L. Neff of their claims respectively in and to this land; in fact, this cause was for trial and was tried at the time said sale was made. At this sale defendant David Atkinson was seeking to sell the interest of Ransom S. Neff in the lands in suit; at that time, and some four years prior thereto, Ransom S. Neff and Sarah Y. Neff, his wife, by their joint deed had conveyed said lands to defendant' Elmer L. Neff. David Atkinson then had actual notice of the claim of Elmer L. Neff, but notwithstanding such notice, he caused said land to be sold and he bought same. (3) Appellants complain because the court refused to revive the lien of the judgments introduced in evidence by David At■kinson against Ransom S. Neff. But what power, authority or jurisdiction did the court have to revive the lien of those judgments in this proceeding? Appellants cite See. 650, R. S. 1899, now Sec. 2535, R. S. 1909, as authority for this procedure. That section does not provide a method of procedure for the revival of a judgment, although it is very comprenhensive concerning the powder of the court to determine titles to real estate. The only authority for reviving a judgment in this State in a court of record is in Secs. 2125 to 2132, R. S. 1909. From the above sections it further appears that no judgment can be revived and have its lien extended except by scire facias. Armstrong v. Crooks, 83 Mo. App. 148; Goddard v. Delaney, 181 Mo. 578.
   LAMM, J.

In March, 1908, Kate A. Lowen sued an aggregation of defendants in the DeKalb Circuit Court. From a decree in her favor, and in favor of one of their codefendants, two of the defendants (Robison and Atkinson) appeal. Pending that appeal, plaintiff died and the cause stands revived here in the name of Michael Wolz, her executor. For convenience we will continue to speak of her as plaintiff.

As a part of the relief granted to one of the defendants not appealing was against the appealing defendants, and as questions of practice and pleading are submitted, and the decree in one or another angle is assailed, it will be useful to state the situation on such phases with, some particularity..

The petition is in two counts. By the first plaintiff sought to reform a deed of trust by correcting the misdescription of land, to declare it a first lien and to foreclose. To that end she averred in said first count, in effect, that' she loaned $300 to Ransom and Sarah Neff, husband and wife, in July, 1899, evidenced by a note due in three years; that said Neffs, as husband and wife, owned two tracts of land in DeKalb county (we omit description because diffuse and technical, and call them tracts one and two); that .tract one comprised twenty-four and seventy-five one-hundredths acres, and tract two eight acres; that by agreement between plaintiff and said Neffs, said note was to be secured by a deed of trust in the nature of a mortgage which was to be a first lien on both said tracts; that pursuant to. such agreement a deed of trust was executed whereby said agreement to convey said described land was attempted, but that the land was misdescribed and not conveyed as agreed. The ‘petition also says that the draftsman of the deed erroneously inserted the wrong description; that the note is due and unpaid; and that the said deed of trust was at once spread of record.

In the second count all the allegations of the first are reasserted and a cause of action is stated under old section 650 to try, determine, adjudge and quiet title. In that count it is alleged that, subject to the deed of trust mentioned in the first, Ransom and Sarah Neff owned the fee; that the several defendants make some claim of right, title, interest and estate, in said real estate adverse to the title and estate of plaintiff, the exact nature of which is unknown to her. The prayer of this count is that the title of defendants and plaintiffs he tried and determined and that the court adjudge, settle and define whatever interest the several parties plaintiff and defendants may have, etc.

There was a group of defendants who made default, suffered judgment and stand mute here; another groop demurred, their demurrers were overruled and they refused to plead over. None of that group appeal, henee they fall out of the case. Two defendants, Ransom and Sarah Neff, answer hy solemnly admitting the allegations in the first count of the petition. As to the second count they disaffirm any title in themselves, hut aver that their codefendant, Elmer Neff, acquired their title in May, 1905, hy deed from them. Sarah and Ransom abide the decree.

Elmer Neff was made defendant. He answered admitting the allegations of the first count. As to the second count his answer avers that, subject to the lien of plaintiff’s deed of trust, he acquired the title of Ransom and Sarah by deed in May, 1905, and, subject to the claim of plaintiff, claims all the right, title and interest in said land and prays to be decreed owner. Elmer abides the decree.

There were, as said at the outset, two other defendants, Robison and Atkinson. Robison answered denying every allegation except that whereby it is alleged that he, Robison, claimed some right, title and interest in the land. . He admits that, and then avers he “claims all the right, title and interests in said lands,” wherefore he prayed to be discharged. To his answer plaintiff replied by a denial and the averment that any interest owned by him was subject to the lien of plaintiff’s deed of trust.

Atkinson answered denying all the allegations in the first count. By way of further defense thereto, he alleges that the deed of trust as well as the note referred to in the petition were made at a time Ranson Neff was involved in debt and owing a large sum to divers persons, among them defendant Atkinson; that the note and deed of trust were executed with intent to hinder, delay and defraud such creditors, including Atkinson; that the same was voluntary and without consideration; that presently Atkinson reduced his claims to judgments that are now unsatisfied and valid subsisting demands. The answer then proceeds as follows :

“That thereafter, to-wit, - day of-, 1901, under and by virtue of an execution issued under one of said judgments the lands now sought to be incorporated instead and in lieu of the lands said to be misdescribed therein were duly levied upon and sold by the sheriff of DeKalb county, Missouri, at which said sale this defendant was the purchaser thereof; that thereafter, to-wit, on the--day of ——, 19 — , this defendant in good faith, relying upon his title and without knowledge or information whatever concerning the alleged mistake in said trust deed, did, by a general warranty deed sell and convey said land to his codefendant, Joseph Robison, by which said warranty deed last aforesaid this defendant covenanted that he was seized of an indefeasible estate in said land and covenanted that he would warrant and defend the title to the same against all persons whomsoever. That the attempt to reform said trust deed is in furtherance of the attempt to hinder, delay and defraud this defendant.

“And for further answer and defense this defendant says that the plaintiff has been careless and negligent, and has delayed an unreasonable length of time since the execution of said trust deed, and the note secured thereby, to have the same reformed, and ought to be and is in equity and good conscience estopped as against this defendant from having said reformation made as prayed.

“Defendant for answer to the second count of plaintiff’s petition denies each and every allegation and statement therein contained.

“And the defendant further answering states and says: That the judgments held by him against the said Ransom S. Neff are unpaid, and said defendant prays the court to revive the lien of said judgment now held by him against the said Ransom S. Neff, and that the same may be so revived as to constitute a lien against the property of the said Ransom S. Neff from this date.

“Wherefore, the defendant prays the court for a revivor of his judgment due him from Ransom S. Neff. Defendant says that by reason of the premises aforesaid, plaintiff should not be permitted to have said trust deed reformed.”

Tio that answer plaintiff replied denying all its allegations, and then averring that defendant did not acquire title by said judgment and pretended sale; 'that the sale is void; that the judgments referred to were not liens upon the land; that plaintiff’s deed of trust is superior and prior to any such judgment liens, and should be declared a first lien. The replication then goes on to bring into the paper controversy for the first time a sale made on the “-day of May, 1909.” (As there were several sales made on the Atkinson judgments, the significance of the allegation in the replication regarding the sale in May, 1909, will be seen when we come to the decree which set aside that sale with the others.) In relation to the sale of May, 1909, the replication states as follows:

“This plaintiff further answering [sic] says that on the-day of May, 1909, when said lands were pretended to be sold under execution on said defendant Atkinson’s said pretended judgment, defendant Atkinson, at the time, through his agents and attorneys, had notice of the claims of plaintiff in and to the said lands; and at the time of said sale and a long time prior thereto defendant Atkinson was and had been a defendant in this case, and knew all about the claims of plaintiff in the premises. And well knowing that plaintiff had and of a right ought to have a first lien upon said lands, .and intending to divert the plaintiff out of her just lien and claims to said lands, the said Atkinson pretended to have said lands sold, and pretended to become the purchaser thereof, well knowing the claims of this plaintiff.”

It is next averred that if Atkinson has any right, title or interest in the real estate it is subject to the lien of plaintiff’s deed of trust; wherefore, plaintiff renews'her prayer for judgment.

At a certain time defendant Atkinson withdrew his answer and demurred for that (1) there was an improper joinder of parties, (2) the petition was multifarious and (3) the first count thereof did not state facts sufficient to constitute a cause of action.

'This demurrer was overruled and his answer refiled.

At the trial there was evidence for plaintiff tending to prove that Ransom and Sarah Neff, being indebted to plaintiff, increased their loan under an agreement with her to at' once secure the whole debt on tract one by a deed of trust; that, to carry out that agreement, they executed the deed of trust on the date alleged thinking it conveyed tract one, and plaintiff at once received it thinking it conveyed tract one, such deed being spread of record; that afterwards it was discovered that the land description was wrong; that at the same time they executed their note to plaintiff for $300, due in three years with eight per cent compound interest from date, to-wit, July 15, 1899; that said note is due and wholly unpaid, principal and interest; that in May, 1905, Sarah and Ransom Neff conveyed the land (both tracts one and two) subject to incumbrances, to their son and codefendant, Elmer Neff, by warranty deed, consideration expressed $300; that such deed was at once spread of record; and that Eansom and Sarah held title as husband and wife at the date of the execution of the note and deed of trust to plaintiff.

On behalf of defendants there was evidence tending to show that at the time last above and continuously thereafter Eamsom Neff was indebted to others besides plaintiff, among them defendant Atkinson; that Atkinson’s claims were merged in a judgment and remained unpaid, the Neffs presently leaving the State; that no cash consideration was paid by Elmer Neff for his conveyance, in 1905, or since; that he gave his note in pay for $300, but it was not to be paid at all unless he secured title; that Atkinson recovered three judgments against Eansom Neff in Buchanan county — one before a justice in March, 1900, transcribed to the Buchanan Circuit Court and thence to the circuit court of DeKalb, and duly filed in the proper offices ; another before a justice of Buchanan county, also dated in March, 1900, for $267.15. A transcript of this judgment was presently filed in the offices of the clerks of the circuit courts of Buchanan and DeKalb counties respectively.

(Note: As we gather this latter is the judgment on which execution issued and sale was made, referred. to in Atkinson’s answer as made on the “-day of -, 190 — .”)

In July, 1902, Atkinson and ¿nother recovered judgment against Eansom Neff for $928.41 and costs in the Buchanan Circuit Court, of which judgment Atkinson presently became sole owner by assignment; that in May, 1900, execution issued on the justice judgment last above from the office of the clerk of the circuit court of DeKalb, levy was made on tracts one and two, but the levy on tract one was by the same misdescription as in plaintiff’s deed of trust; that at a sale under that levy Atkinson purchased in June, 1900, and received a sheriff’s deed; that in October, 1900, defendant purchased at another execution sale under the same justice judgment and received another sheriff deed.

(Note: The execution supporting this last sale and sheriff’s deed was also issued from the office of the clerk of the circuit court of DeKalb and the deed and levy correctly described both tracts one and two.)

That in October, 1900, Atkinson sold and conveyed to (and .in March, 1902, took a reconveyance of from) one Jackson both tracts; that in February, 1903, Atkinson sold and conveyed both tracts to his codefendant Robison by warranty deed, duly spread of record, consideration $900; that after this suit was brought, to-wit, in May, 1909, Atkinson bought both tracts one and two at another execution sale and received a sheriff’s deed, three executions directed to the sheriff of DeKalb issuing from the office of the clerk of the circuit court of Buchanan severally on the three judgments herein-before mentioned and the levies being made upon both tracts as the property of Ransom Neff. (Note: This is the execution sale mentioned in plaintiff’s replication to Atkinson’s answer.) It appears furthermore that Robison took possession.

There was no evidence tending to show any fraud or collusion between plaintiff and the Neffs; she seems to have acted throughout in good faith.

At the close of the evidence, a demurrer thereto was offered, overruled and an exception saved.

The court, having taken time to consider, presently decreed, inter alia (so far as pertinent to any question here affecting the appealing defendants) as follows: That because of a “mutual mistake” plaintiff’s deed of trust be reformed so as to include tract one by its correct description (setting it forth); that it is a first lien; that, as reformed, it be foreclosed; that Elmer Neff took title in fee to both tracts, under his conveyanee from his parents in 1905 subject to the lien of the deed of trust on tract one and “free from all claims of the other defendants herein;” that the two sheriff’s deeds to Atkinson hearing date in 1900 be annulled and for naught held and that he take no interest or estate thereunder; that the sheriff’s deed hearing date in May, 1909, be similarly annulled and that Atkinson take nothing thereunder; that the warranty deed from Atkinson to Robison, describing it, “be [quoting] set aside, annulled, cancelled and for naught held, and that said Joseph Robison take nothing under or by said warranty deed.” The costs were adjudged against defendants Atkinson and Robison.

The points raised by appellants’ counsel are, to-wit:

(1) The first count of the petition did not state a cause of action.

(2) The demurrer to the evidence laid.

(3) Conceding for argument’s sake, that reformation of the deed of trust was well enough, yet the decree in favor of Elmer Neff cannot stand (and herein of the last sheriff’s sale and the deed from Atkinson to Robison).

(4) It was error to adjudge all the costs against appellants.

(5) And in not reviving the lien of Atkinson’s judgments.

I. Of the sufficiency of the first count of the petition.

There is no direct allegation in such count that the mistake in land description was a “mutual” mistake. Moreover, the pleader laid some stress on the “error” of the draftsman of the deed and did not aver the draftsman was the agent of grantors and grantee in writing the deed wherefrom mutuality in such error springs. Hence, appellants’ counsel say, the first count of the petition is had and the demurrer good.

(a) That a mistake, -cognizable in equity as subject to correction by a decree, must be a mutual mistake, is a doctrine resting on the soundest premises. Thus, at root,- a contract involves the primary and essential concept of a meeting of the minds contracting parties — the aggregatio mentiwn of the books on contracts. Without such meeting the instrument is unilateral and there is no bilateral contract. Now, in reforming contracts equity does not make new ones. It lets the parties make their own. Its function is to find out if the contracting parties’ minds met on a given substantial proposition (that is, it searches out the mutuality) and if by mistake of both the contract asserts to the contrary or is silent, it reconstructs its terms so as to speak the truth. When it has done that the resulting product is the real contract the parties themselves made, and not one the chancellor accommodatingly made for them. The philosophy of the matter is nowhere better expressed than by Gamble, J., in an early case (Leitensdorfer v. Delphy, 15 Mo. l. c. 167), thus: “It is not necessary, in order to establish a mistake in an instrument that it shall be shown that particular words were agreed upon by the parties as words to be inserted in the instrument. It is sufficient that the parties had agreed to accomplish a particular object by the instrument to be executed, and that the instrument as executed is insufficient to effectuate their intention. The power of a court of equity to reform an instrument, which by reason of a mistake fails to execute the intention of the parties, is unquestionable. It is not material, whether the instrument is an executory or an executed agreement; nor is it material whether the proceeding is directly by bill to correct the mistake or the mistake is set up in the answer by way of defense.”

(b) Applying the principles just announced, it could not well be held that a pleader must in set terms and ipsissimis verbis plead a mutual mistake. If he set forth substantive facts by way of averments which necessarily mean mutuality of mistake that will be sufficient. The mere name, “mutual mistake,” while commonly used in bills for reformation of mistake, is not indispensable in a bill if mutuality is fairly inferable from allegations made. [Meek v. Hurst, 223 Mo. l. c. 696.] Agreeable thereto is the statute making it our duty to construe pleadings liberally with a view to substantial justice between the parties. [E. S. 1909, sec. 1831.] The ultimate question is: "What is a mutual mistake? Take an a-b-c case to illustrate. A pleader alleges that A agreed to sell to B and B agreed to buy from A a tract of land X. That in pursuance of that pact A attempted to convey X to B but by mistake inserted Y in the deed thinking it was X, and B by mistake, thinking Y was X, accepted the deed and paid the purchase money. Is- not that a mutual mistake? We think so and are of opinion the first count by fair implication set forth an equivalent situation.

(c) Appellants’ counsel seize hold of the allegation that the draftsman by error misdescribed the land. They say that, absent an allegation that the draftsman was the agent of both parties, it results that on the very face of the petition his error was not the mutual error of both. That proposition may be allowed as sound. [Meek v. Hurst, supra; Brocking v. Straat, 17 Mo. App. l. c. 305; Williamson v. Brown, 195 Mo. l. c. 330 et seq.; Benn v. Pritchett, 163 Mo. l. c. 571 et seq.]

But that concession does not reach the whole ease. Here the pleaded error of the draftsman may be viewed as merely, supplementary to the mutual mistake, impliedly alleged, of grantors and grantee. Bedundancy may clog or obscure, but without more does not vitiate a pleading, and we think the allegation of the draftsman’s error was in the nature of redundancy. We are glad to be able to take that view of it; for the plain justice of the case runs for plaintiff in a strong current. Appellants’ pleaded ease, from the angle of fraud on her part, has no foot to stand on.

(d) In leaving the question of demurrer we make some further remarks. It will be observed that besides being a demurrer to the first count on the general ground that it did not state facts sufficient to constitute a cause of action, the whole petition was struck at as multifarious and because of a misjoinder of parties. As to the last two features they seem to be abandoned, if we read briefs aright. But whether we do or not is of no consequence; for when appellants demurred on those grounds and refused to stand on their demurrer, but pleaded over, taking issue on the facts, they waived those grounds effectually. For an appellate court to tread back in a case in search of reversible errors, and spy out some abandoned ground, would be but to deal in mere mint and anise and cummin and neglect the weightier matters of the law. We have constantly construed section 1800, Revised Statutes 1909, in connection with its cognate section 1804 as forbidding us to do that.

The demurrer to the petition was well ruled.

II. Of the demurrer to the evidence.

Under this head counsel argue that the testimony did not show a mutual mistake, but we cannot follow that lead, because, as we read the record, it shows such mistake with emphasis. The court found the mistake was mutual. The grantors in the trust deed admit they made the mistake. The beneficiary in the deed, plaintiff, testifies she was to receive a deed to tract one. All hands agree that by inadvertence there was a misdescription in that particular. We rule the point against appellants.

ITT. Gan the decree in favor of Elmer Neff stand (and herein of the last sheriff’s deed and of the warranty deed from Atkinson to Robison) 1

It will be observed the decree set aside the sheriff’s deed made subsequent to the bringing of this suit and annulled the warranty deed made by Atkinson to Robison in 1903 subsequent to the first two sheriff’s sales. It also decreed that Elmer Neff, by his deed of May, 1905, from his parents, acquired the whole title subject to plaintiff’s reformed deed of trust. If the decree had been simply directed to reforming plaintiff’s deed of trust and clearing away all claims by any defendant standing in the way of her title under that deed of trust, no fault could be found with it, but it went much beyond and undertook to settle the rights of Elmer Neff as against his codefendants, Robison and Atkinson, and it cleared up his title as against •them, and not only so but, as pointed out, it cut up the warranty deed Atkinson made to his codefendant Robison, root and branch. If the court under the pleadings had the power to do this latter thing as between Robison and Atkinson, then Robison is bound by the decree and if he seeks recourse over against Atkinson on his covenants of warranty he will be met by a decree dissolving those covenants and cancelling his deed in a suit to which he was a party. We have come to the conclusion that the decree went too far in these particulars and must be modified, because:

(a) In the first place, there was nothing in plain-bill demanding a clearing up of Elmer Neff’s title except in so far as it was neeesgary -j-0 or an antecedent of the reformation of the deed of trust.

So there were no cross-actions or cross-bills filed as between the codefendants and no averments in any answer which by the most liberal intendment could fill the office of such cross-action as between the answer-ins defendants. We heretofore set out the‘substance of all the answers for the purpose of demonstrating" so much as that. A decree must respond to the issues. Here there were no issues made on the validity of Elmer Neff’s title as between him and his codefendants. To decree outside of the issues is error; [Spindle v. Hyde, 247 Mo, l. c. 51 et seq., and cases cited.]

(b) In the next place, if there had been cross-actions or cross-bills as between codefendants they must be germane to plaintiff’s bill and in the nature of a defense in order to give jurisdiction to found a decree thereon. [Fulton v. Fisher, 239 Mo. l. c. 130 et seq.]

(c) If we turn to old section 650, now (as amended) section 2535, Revised Statutes 1909, and try to work out a theory on which those parts of the decree, directed to clearing up the title of Elmer Neff as between him and his codefendants, may stand, the result is the same. Neither of those sections contemplated that the chancellor should go outside the issues in his decree. Both of them are to be administered in conformity to the Code of Civil Procedure, that is, within the lines of scientific pleading and practice. [R. S. 1909, sec. 2536’, formerly Sec. 651.] Any other view would make of that remedial act a fruitful womb of confusion and wrong.

(d) In so far as the decree out and out' annulled the deed from Atkinson to Robison, as between them, it went too far. No issue demanded such decree. It would have been enough to have held that whatever rights, if any,-Robison had under that deed, (as be-' tween him and Elmer Neff and as between him and Atkinson) were subject to plaintiff’s reformed deed of trust.

In saying so much as that we are not to be taken as holding that Atkinson’s first two sheriff’s deeds, on which Robison may in part rely to support his title under Atkinson’s deed to him, were valid. All parties agree (one side by assertion, the other by concession) that they were afflicted with a fatal infirmity in that the sales supporting them were not made on executions issued by the clerk of the circuit court of Buchanan county (R. S. 1909, sec. 2166), but on executions issued from the office of the clerk of the DeKalb Circuit Court. Obviously the sheriff held no legal authority to make those sales, and the deeds conveyed nothing. Ex nihilo nihil fit.

(e) The holding just made brings us to the last sheriff’s sale and deed, made on three executions issued by the right authority — on the judgments mentioned against Ransom Neff and at which sale Atkinson bought under the hammer and received a deed. This sale and deed were subsequent to the institution of this suit, and got into the case only through plaintiff’s replication. It had no place there and no issue was tendered thereon. Evidently it could not affect, plaintiff’s right to reformation; for at that time the judgments were not liens on tract one, there was no. fraud in her deed of trust making it subject to a creditor’s bill, and when Atkinson bought and took his deed, he had notice of plaintiff’s claim. So that, if the question was only between plaintiff and Atkinson we would not meddle with the decree on that score, because that phase of the decree would not affect the merits an iota on such view of it. But the scope of the decree being so wide and deep-going as to adjudicate Elmer Neff’s title as against Atkinson and Robison, another question springs. We are not prepared to say that so much of Elmer’s title as was derived from his father as tenant by the entirety, is good as against the creditors of his father. We say neither aye nor nay thereon. What we do say is that on the pleadings in this cause such fact was not at issue and the decree in that particular is not responsive to the pleadings.

IV. Of costs.

It is argued the decree is erroneous in assessing the costs against appellants.

No complaint of that sort was made in the motion for a new trial or in arrest. We put that assignment of error to one side.

Y. Of the revivor of Atkinson’s judgments.

Finally it is assigned for error that the court did not revive Atkinson’s judgments. The point is without any merit at all for more reasons than one. Judgments are “revived” in the court rendering them-, and on scire facias (R. S. 1909, secs. 2125 to 2132 inclusive), and not in other courts and on other process.

Appellants cite us to Revised Statutes 1909, section 25-35-, formerly section 650. That section on quieting titles seems indeed an omnium gatherum,, a catchall, a “shotgun” instrument. But it cannot he held to serve the purposes of reviving or continuing the liens of judgments when such liens have expired (as here) or are about to expire by effluxion of time. Nothing-in its language indicates the lawmaker by that statute intended to provide such remedy.

The decree is reversed and the cause remanded with directions to enter a decree in accordance with the views herein set forth.

All concur.

CONCURRING OPINION.

WOODSON, P. J.

I concurfully in the opinion in this case, except as to what is said in regard to the case of Fulton v. Fisher, 239 Mo. 116.

While that case announces a correct principle of law, yet it was clearly misapplied in that case; but not in this.


text:
    ALONZO H. THOMPSON and HATTIE I. LINDLEY, Appellants, v. R. R. STILWELL.
    Division One,
    December 6, 1913.
    1. SUIT TO QUIET TITLE: Sec. 2535, R. S. 1909: Legal or Equitable Action: Determined by Pleadings. Where, in a simple proceeding to ascertain and determine title under Sec. 2535, R. S. 1909, there is nothing in the pleadings which gives it an equitable character, the rules applicable in ordinary, actions at law govern the case on appeal.
    2. -:--: Appeal: Action at Law. Where, in an ordinary action at law, there is any legal theory, supported by substantial evidence, which justifies the trial court’s finding, the judgment must be affirmed on appeal.
    3. -: -: -: Evidence: Adverse Possession: Color of Title. Held, that there was substantial evidence to support the trial court’s finding of defendant’s ownership of all the land in suit through adverse possession of a part with a claim and color of title to the whole.
    Appeal from Morgan Circuit Court. — How. John M. Williams, Judge.
    Affirmed.

      Amos A. Knoop for appellant.
    (1) The possession of the east half did not defeat plaintiff’s claim as to the west half although both were included in defendant’s deed, unless there was possession of a portion of the west half and that possession must comply with the statute as to open, adverse and notorious. Eotlirock v. Lumber Co., 80 Mo. App. 510. (2) A party who relies upon adverse possession must show the actual knowledge of the real owner that he claims in opposition to and in defiance of his title or he must show such an occupancy and user, so open and notorious and inconsistent with as well as injurious to the rights of the true owner that the law will authorize, from such facts, the presumption of such knowledge by the true owner. Hunnewell v. Burchett, 152 Mo. 614. (3) Where a proprietor’ of land, through a mistake or ignorance of location of the true line, separating his tract from that of an adjoining proprietor extends his fence beyond the true line and incloses a part of the land adjoining, the possession thus obtained does not become adverse. Pharis v. Jones, 122 Mo. 130. (4) . The occupancy of the land, the use of its products, the assumption of dominion and authority .over it, must be by acts so open, pronounced and conspicuous, that the owner in looking after it might see some evidence of a hostile claim or possession that he might challenge or contest. Musick v. Barney, 49 Mo. 463; Robinson v. Olaggett, 149 Mo. 159; Nye v. Alfter, 127 Mo. 529-, Lumber & Mining Co. v. Jewell, 200 Mo. 716. The legal title to the land was in appellant.. The burden was on respondent to show sufficient adverse possession to divest that title. The land originally was fenced through a mistake. That mistake was discovered when Burnham made the survey, but when that was there is no proof. The possession of the small tract of cleared land by Moore was not so open, pronounced and conspicuous that any of the parties ever observed or suspected it until it was disclosed by the Burnham survey. How then Could appellant in visiting the land have discovered or detected this possession? Respondent would have appellant charged with knowledge of facts that his own witnesses did -not know or even suspect existed. Before the owner of the legal title is divested of his right on the ground of adverse possession the-evidence of such adverse possession should be clear, cogent and convincing. Respondent has failed to show possession so open, pronounced and conspicuous that appellant, in visting the land, could have seen, therefore this cause should be reversed.

      A. L. Boss for respondent.
    (1) Eespondent holds the land in controversy by mesne conveyances under John F. Baker, who was the owner of said land in 1868, and whose right, title and interest therein was levied on and sold to Hugh Lynch. The levy was prior to the date of the deed made by Baker bo Swift under whom appellant claims, although the deed to Lynch was subsequent in registry. Nevertheless, the sheriff’s deed to Lynch and alí subsequent conveyances offered and admitted in evidence on behalf of respondent constituted color of title, regardless of the alleged defects in the justice’s judgment. Fugate v. Pierce, 49 Mo. 441; Hamilton v. Boggess, 63 Mo. 233; Mansfield v. Pollock, 74 Mo. 185; Dunnington v. Hudson, 217 Mo. 100'; Land & Lumber Co. v. Irvin, 200 Mo. 485. (2) Max Joachimi, under whose color of title and possession respondent holds, was not a squatter or a trespasser, but held said: land in good faith, believing that he was the owner, and entered into possession of same in «1874, and held actual possession, by tenants, of a part of said land, exercising the usual acts of ownership over the entire tract, under claim and color of title to the whole, continuously for more than ten years. Schultz v. Lindell, 30 Mo. 310; Johnson v. Prewett, 32 Mo. 553; Crispen v. Hannavan, 50 Mo. 536; Norfleet v. Plutchins, 68 Mo. 597; Callahan v. Davis, 103 Mo. 444; Land Co. v. Hays, 105 Mo. 143; Heinemann v. Bennett, 144 Mo. 113; Plaster v. G-abreel, 160 Mo. 669. The possession of the tenant is the possession of his landlord. Farrar v. Heine-rich, 86 Mo. 521. (3) The indicia of respondent’s possession were sufficient. His possession was actual, open, notorious andi continuous. If the appellant had visited and viewed the west half of the northeast quarter of said section two, at any time between 1874, and 1900, he would have seen and. found a portion of said tract cleared, fenced and in cultivation. (4) There is no ground for appellant’s'contention that the controversy arose over a disputed boundary. Appellant and Joachimi were claiming the same land. Joachimi had it surveyed. Nobody questioned this survey. If appellant had visited the premises he would have seen the same land, including Joachimi’s enclosure. (5) The instruction ashed by appellant was properly refused. Respondent had shown color of title, and actual, open, continuous, exclusive and peace.able possession by Max Joachimi, his remote grantor, of a part of said land, under claim and color of title to the whole tract, exercising the usual acts of ownership over same, for more than the statutory period necessary to vest the title in him. All of the conveyances, under which respondent claims title, were duly recorded and gave appellant constructive notice of adverse claim and occupancy. Crispen v. Hannavan, 50 Mo. 536. (6) The court properly admitted in evidence the conveyances offered by respondent, for the reason they were at least color of title. And the evidence was ample to warrant the finding of the court that the possession of Max Joachimi, under whom respondent claims, had ripened into title. On appeal the presumption is in favor of the judgment, and it must stand unless it affirmatively-appears that the judgment cannot be justified on any g-round’ 0 ’Neal v. St. Louis, 8 Mo. App. 416. (7) (a) While suits under Sec. 2535, R. S. 1909, are not to be tried strictly as actions at law, yet the issue joined and the facts in the case at bar disclose an action at law and it should be so treated, (b) In actions at law this court will not review the evidence, or the findings of the court or jury below, (c) Even in equity cases this court will defer to the findings of the trial court. Taylor v. Penquite, 35 Mo. App. 389; Wad-dell v. Williams, 50' Mo. 216 ; Willi v. Dryden, 52 Mo. 319; Hamilton v. Boggess, 63 Mo. 233; Hinchey v. Koch, 42 Mo. App. 230'; Rice v. McClure, 74 Mo. App. 383; Haywood v. Graham B. & S. Co., 59; Mo. App. 453; Ashby v. Homes, 68 Mo. App. 23. (d) The instruction asked by the appellant, and refused by the court, wa,s merely a general direction to find for the plaintiff on tbe pleadings and the evidence, and1 was not such an instruction as would aid this court in ascertaining on wbat theory the lower court tried the case, and amounts to nothing.
   BLAIR, C.

This proceeding was commenced by Alonzo Thompson. Since the appeal was taken he died and Alonzo H. Thompson and Hattie I. Lindley, his sole heirs and devisees, have been substituted as appellants.

This is a suit to ascertain and determine title under section 2535, Revised Statutes 1909. The land involved is the west half of the northeast quarter of section 2, township 41, range 19, .r A,. , . Morgan county, Missouri. The whole ot the quarter section was patented to Henry Alcorn, who executed a deed therefor to John P. Baker, who, in turn, executed a deed for the same land to H. A. Swift, which deed was filed for record September 12,1868', and on April 25', 1870, Swift executed a deed for the same land to Alonzo Thompson, and this deed was recorded April 30, 1870.

Respondent claims by mesne conveyances under Hugh Lynch who purchased at a sheriff’s sale on an execution on a transcript of a justice’s judgment against John P. Baker in St. Louis county. This execution issued April 23, 1868. The execution was levied May 7, 1868', and the sale thereunder occurred September 22, 1868, and the deed from the sheriff to Lynch is dated September 23, 1868, and was filed for record January 6,1871. Respondent also claims under the ten-year Statute of Limitation. Alonzo Thompson paid the taxes beginning with the year 1871, except for the years 1873, 1875, 1877, 1889-, 1893, 1895 and 1896. Lynch in December, 1873, executed a deed to Max Joachimi and he paid the taxes for the years in which Thompson did not pay them. Each of the two claimants knew the other was paying taxes. At the close of the evidence plaintiff’s counsel requested the court, sitting as a jury, to give an instruction to the effect that under the pleadings and the evidence the finding must he for plaintiff. This, the court refused to do. No other instructions were asked or given, and the court found for defendant .and rendered judgment accordingly.

This is a simple proceeding under section 2535, Revised Statutes-1909, and there is nothing jn the petition or answer which gives it an equitable character. The rules applicable in ordinary actions at law, therefore, govern the case in this court. [Lee v. Conran, 213 Mo. 404; Cousins v. White, 246 Mo. l. c. 309.] This being true, if there is any legal theory, supported by substantial evidence, which justifies the trial court’s finding, the judgment must be affirmed.

There was evidence that Max Joachimi in 1873 paid Lynch $400' in consideration of a deed for the' quarter section including the land in suit; that in the summer or fall of 1874 he put up a cabin on the east half of the quarter section and for seven or eight years, off and on, did some mining on the west half thereof, miners occupying the cabin mentioned ; that in 1874 he leased five or six acres of the west half to one Moore and had it cleared and fenced, and Moore cultivated it as Joachimi’s tenant from 1874 until he died, about 1897; after his death Joachimi leased the same ground to Todd, who cultivated it until he died, about 1901 or 1902. During this period .Joachimi had much of the timber cut off the unfenced portion of the tract and sold standing timber to others. In his rental contract with both Moore and Todd it was agreed they should keep trespassers off of the unfenced portion and protect the timber, and there is evidence they did so, at least that Moore did.

The oonrt questioned Joacbimi as follows: “Q. Mr. Joachimi, now you say there was some four or five or six acres cleared? A. Yes, sir.' Q. The main part of the cleared tract being on the west half? A. Yes, sir. Q. Some little of it being on the east half? A. Yes, sir. Q. Now, was that fenced? A. Yes, sir. Q. Well, was it cultivated every year for as much as ten years? A. Yes, sir; more than that. Q. And continuously fenced? A. Yes, sir.”

Other witnesses corroborated Joachimi as to the fact that he leased the cleared portion of the land in suit to Moore in 1874; that Moore cultivated it continuously until his death — about 1897; and that Todd then rented the parcel from Joachimi and cultivated it until he died — about 1901.

No one bnt Joachimi and his tenants, Moore and Todd, had ever been in possession of any part of the land. In 1877 Alonzo Thompson sent to the collector of Morgan county a check for $3'.10 in payment of the taxes on the land in suit and the east half of the same quarter section. The collector returned the check and wrote Thompson that the taxes on this land for 1877 had been paid by Joachimi. March 24,1890', the collector wrote Thompson that the taxes of 1889’ had been paid by Joachimi, and in 1893 and 1897 similar letters were written by collectors to Thompson concerning the taxes of 1893,1895 and 1897. In 1893 and 1897 Thompson’s checks for taxes were returned to him.

The statute (See. 1882, R. S. 1909) provides that: “The possession, under color of title, of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such tract. ’ ’

■ 'It cannot be donbted that Joachimi had at least color of title to the whole of the land (Dunning v. Hudson, 217 Mo. l. c. 100, 101), and there is evidence sufficient to support the finding that he entered in good faith and took and for twenty years held possession of part of the tract in the name and under claim of title to the whole. The acts of owership the evidence tends to show he exercised over the unfenced and uncleared portion of the land, were of the usual character, the nature of this part of the tract being considered. [Hickman v. Link, 97 Mo. l. c. 490; Leeper v. Baker, 58 Mo. 400.] These things were sufficient to satisfy the requirements of the statute.

There having been substantial evidence to support .a finding under the statute, this court cannot mow substitute itself “for the trier of the facts, and retry it on the evidence.” [Gaines v. Saunders, 87 Mo. l. c. 563.]

It is suggested Moore fenced the cultivated parcel of the land through mistake and that this fact introduces into the case the rule relating to a situation in which one in mistaken possession of part of another’s property claims only to the true line and not adversely. The question whether Moore fenced the land by mistake or fenced it at all, for himself, was, at most, one of fact, and a finding that he did not do so was clearly warranted by the evidence. Further, if he did so fence it, the evidence is all to the effect that from 1874 forwiard he occupied it as Joachimi’s tenant. Neither Moore nor anyone claiming under him sets up title or claim to any of the land.

In view of these considerations, it appears that the evidence warranted a finding for defendant on the theory of adverse possession, for the requisite period, under color of title. It, therefore, becomes unnecessary to go into the questions raised in the excellent brief of plaintiff’s counsel with respect to the soundness of JoacMmi’s record title. The judgment is affirmed.

Brown, C., concurs.

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

All the judges concur.