text:
    MOSES W. CLAY et al. v. UNION WHOLESALE PUBLISHING COMPANY et al., Appellants.
    Division Two,
    December 22, 1906.
    1. APPEALS: Abstract: Insufficient. Record matters proper and matters of exception should not be so confounded in the purported printed abstract that those of the one cannot be distinguished from those of the other. To set out the pleadings as a part of the abstract and to immediately follow them with everything else therein as if every other such thing were a part of the record proper, is the same as an abstract without a bill of exceptions.
    2. -: -: Bill of Exceptions. A bill of exceptions must not only be approved and signed by the trial judge; there must also be set out so much of the record entry as shows when the bill was filed, whether in vacation or in term time, and whether or not within time properly allowed.
    3. -: -: Corporation: Receivership. Where the pleadings sufficiently state a cause of action by stockholders to have a receiver appointed to wind up its affairs, because of a perversion of its funds by its officers and a misuse of the franchise by them, the judgment of the trial court in accordance with the petition, the abstract being in such shape that the bill of exceptions cannot be considered, will be affirmed.

      Appeal from Pettis Circuit Court. —Hon. George F. Longan, Judge.
    Affirmed.

      C. H. Fearing for appellants.
    (1) Complainant has no interest in the corporation and has no right to ask for a receiver. (2) Complainant, when connected with the corporation, was a party to all the transactions of which complaint is made and cannot complain of the same. (3) Complainant does not state facts sufficient to constitute a cause of action or any grounds for the appointment of a receiver. The petition does not disclose a controversy for any other relief except the appointment of a receiver and does not ask it as a provisional remedy pending the determination of some other controversy; consequently, the court had no authority to appoint a receiver. Miller Bros. v. Perkins, 154 Mo. 637; State v. Ross, 122 Mo. 435; Beach on Receiver, sec. 57; 17 Ency. PI. & Prac., p. 681. (4) The court erred in not sustaining the demurrer to the intervening petition and also the demurrer to the evidence of E. D. Mott, J. B. Jeffers and J. M. Jeffers. These petitions are not sufficient to sustain a cause of action upon any theory. The principal contention seems to he based upon a rescission of the contract of purchase of the stock because it was induced by fraud. If that was true, a tender back of the stock would be necessary before a suit could be maintained. This was not done, but interveners further claim the right to intervene because they were stockholders. As stockholders the petitions contain no facts authorizing the appointment of a receiver.

      R. J. Ingraham, Horace H. Blanton and Walsh £ Morrison for respondents.
    (1) The action is maintainable by Mr. Clay. R. S. 1899, sees. 1338, 1339, 1340. (2) The interveners are entitled to maintain the suit on their own behalf. 17 Am. and Eng. Ency. Law (2 Ed.), 184; Poehlman v. Kennedy, 48 Cal. 201; 17 Enc. PL and Pr., 705; Brown v. Iron Co., 134 U. S. 535; Hollins v. Coal Co., 150 H. S. 380; Florida Land & I. Co. v. Merrill, 52 Fed. 77, 60 Fed. 17. (3) Appellants’ abstract of the record is defective. St. Charles ex rel. v. Deemar, 174 Mo. 124; Kirk v. Kane, 97 Mo. App. 556; Ricketts v. Hart, 150 Mo. 64; Fast v. Cray, 105 Mo. App. 694; Will v. ■Railroad, 167 Mo. 223; Hamilton-Brown Shoe Co. v. Williams, 91 Mo. App. 511.
   FOX, J.

This cause is now pending in this court upon appeal from a decree and judgment rendered by the circuit court of Pettis county, Missouri. The nature and character of this proceeding as well as the defenses thereto, as disclosed by the record proper, may thus be briefly stated:

This action was originally instituted by M. W. Clay, who brought the suit on behalf of himself and all other persons similarly situated, who might join in the proceeding's and contribute to the costs and ex- ■ penses thereof. The suit is brought by Mr. Clay as a stockholder of the Union Wholesale Publishing Company against the corporation and Y. D. Snyder, president, and F. W. Stewart, secretary, in accordance with the provisions of sections 1338, 1339, and 1340, Revised Statutes of Missouri 1899', alleging that the defendants are using the corporation as a means of defrauding various persons, and that the directors of the company have violated their duties and abused their powers, as directors, trustees and officers of the corporation, and have been gnilty of gross misconduct in the management of the business and are threatening to convey the remainder of the company’s property. The relief prayed for was that the directors, managers and officers be compelled to account for their official conduct in the management and disposition of the funds, property and business of said company; that the court order and decree the payment by them to' the company, or any receiver appointed therefor, of all sums of money and the value of the property which may have been acquired by themselves or transferred to others, or lost or wasted by the violation of their duties and the abuse of their power as such directors and officers, and that said directors and officers be suspended from exercising their offices, and that one or more receivers be appointed to take charge of the real estate or personal property owned, held or claimed by the Union "Wholesale Publishing Company, to account for the same to the stockholders of said company and to preserve and keep the same intact for the persons who may be found entitled thereto, and. that defendants, and each of them, be restrained and enjoined from conveying, transferring or alienating any of the property, assets or affects of said Publishing Company to any person whatever, and for such other and further relief as plaintiff, and those who might join in the action, might be entitled to in equity and good conscience.

Several persons came forward and intervened in the cause, among whom were E. D. Mott, J. B. Jeffers and - J. M. Jeffers. These three interveners filed separate petitions alleging a similar state of facts and asked similar relief, namely, the interveners alleged that Y. D. Snyder and F. W. Stewart, by -false and fraudulent representations, induced each of tho interveners to purchase stock of the par value of one thousand dollars, representing that the same was fully paid up, and that the business of the corporation was legitimate and successful. And' further alleging that ' the business of the corporation was fraudulent and that illegal and dishonest contracts were being entered into, which the defendants did not intend to carry out, and had not the means of carrying out, and that the defendants Stewart and Snyder were mismanaging and misappropriating' the assets of the company and diverting money to their own use and jeopardizing the interests of the stockholders. The interveners prayed for an injunction against the defendants enjoining them from disposing or transferring the assets of the company, and that an accounting be had and a receiver appointed for said company, and such other and further orders and judgments as to the court might seem just and proper. The intervening petitions of the three interveners are practically alike.

The defendants filed an answer to the petition of Moses W. Clay, alleging that Mr. Clay represented to Snyder and Stewart that he was a man of large means and that he desired to become engaged in the business of selling books, etc., and would subscribe for ten thousand dollars of the capital stock of the company, and that he, with Snyder and Stewart, organized the Union Wholesale Publishing Company; and that Mr. Clay was one of the first directors and that he took an active interest in the same, and conducted and had the management of its affairs and controlled the policy of the same. The answer further alleged that Mr. Clay had failed to pay for his stock and that he had been notified by the directors in June, 1901, to pay for the. same within sixty days or the same would be forfeited, and that after the expiration of said notice said Clay having failed to pay for the stock, the same was forfeited and that said Clay has no interest in the corporation of any nature whatsoever.

The answers filed to the intervening petitions were general denials.

G. F. Haskins, Frank C. Moyer, J. E. Phillips and John Zenner, also intervened in this cause, hut their intervening petitions were dismissed before judgment was rendered, and hence did not enter into the determination of the present case.

At the close of the hearing of this case the court rendered the following decree:

“Now, on this day the taking of the testimony heretofore concluded, and the court having heretofore heard the argument of the counsel for the respective parties, the court doth order, adjudge and decree as follows:
“First. The court doth find the issues for the plaintiff and E. D. Mott, J. M. Jeffers, J. B. Jeffers, intervening petitioners, and doth order and decree that the temporary injunction heretofore issued herein be made permanent. And that the defendant, the Union Wholesale Publishing Company, its directors, officers and agents, be and the same are hereby -forever restrained and enjoined from conveying, transferring or‘ alienating any of the property, assets or effects of said company to any person whatever, or from in any wise or to any extent controlling or attempting to exercise any control whatever over any books, accounts, property or assets of said company.
“Second. The court doth order and decree that C. M. Mulkey be and he is hereby appointed receiver of all the property and assets of said Union Wholesale Publishing Company, and the said receiver, or his successor, is hereby authorized to take charge and possession of all the books, accounts, property, real and personal, belonging to said Union Wholesale Publishing Company, and to account for the same to the court, for the benefit of the creditors and shareholders of said company, and to preserve and keep them until duly ordered sold by the court, and all said property of said company is hereby vested in said C. M. Mulkey, receiver, or his successors, and the court doth further order and decree that said C. M. Mulkey shall duly qualify as such receiver within fifteen days from this date by filing his bond as such receiver, with at least two freeholders, in the sum of $10,000, and that failing so to do a vacancy in such receivership shall exist, to be filled in vacation on motion of either party or the judge of the court; and said receiver is hereby ordered to make immediate report and file a schedule of all the properties and assets of said company as soon as he shall take possession of the same, and further obey such orders of the court touching the premises, as the court shall make from time to time, in term or vacation.
“Third. The court doth order, decree and adjudge that the plaintiff have and recover its costs herein laid out and expended against the said Union Wholesale Publishing Company.
“Fourth. The court doth find the issues for the following intervening petitioners, to-wit, the plaintiff and E. D. Mott, J. M. Jeffers and J. B. Jeffers, and doth order, decree and adjudge that said intervening petitioners be and the same are hereby declared creditors of said Union Wholesale Publishing Company to the following amounts .......... and the court doth order that the said intervening petitioners shall be paid pro rata out of the funds distributed by the receiver, on the further order of this court, for the payment of dividends to creditors.”

From this decree and judgment defendants prosecuted their appeal, and the record is now before us for consideration.

OPINION.

At the very inception of the consideration of this cause we find that the sufficiency of the abstract of record is challenged by respondents, and that question must first be determined, for it is apparent if the contention of respondents in respect to the 'abstract of record is to be maintained, then there is nothing- for review before this court except the record proper.

We have carefully and critically examined the abstract as furnished by appellant and have- reached the conclusion that it is insufficient and fails to comply with the well-defined rules of this court. In the first place, it cannot be determined from this abstract of record, commencing after the reply was filed by the respondents to the new matter in the answer, as to what constitutes the record proper, and that part of it which is made a part of the record by the filing of the bill of exceptions. We find after the reply is inserted that appellants start out in the abstract by denominating it simply “an abstract of the evidence;” then follows what purports to have been the evidence, as well as the judgment and decree and the action of the court upon the motions to vacate the order appointing a receiver and for a new trial, and finally concludes with on the '31st day of October, 1903, defendants present their bill of exceptions and pray that the same may be signed and filed and made a part of the record in this case, which is accordingly done this 31st day of October, 1903. George F. Longan, Judge.”

If this is the bill of. exceptions then it is manifest that appellants have improperly confounded in such bill matters which pertain to the record proper with those which should only be embraced in the bill of exceptions preserving the exceptions to the action of the court during the progress of the trial. But aside from this, there is nothing in the abstract of record; which shows that the bill of exceptions was filed. It is essential to a proper abstract of record that it should show that the bill of exceptions was either filed by the clerk in vacation or that it was filed in term time by a proper order of court duly entered of record. While perhaps it would not be necessary to set out in full the entry of the record showing the filing of the bill of exceptions, yet there should be a statement in the abstract, if the bill of exceptions was filed in term time, that it was so filed, and that the filing was evidenced by an entry of record duly made by the court; if filed in vacation, a statement should be made that it was duly filed in vacation within the proper time by the clerk of the circuit court óf the county in which the cause was tried. The concluding part of the bill of exceptions signed by the judge, as heretofore indicated, by no means supplies the defect of this abstract of record as herein pointed out. ■ It is apparent that the closing sentence as suggested and signed by the judge, was embraced in and a part of the bill of exceptions. So far as the filing of that bill is concerned, the abstract of record before us is absolutely silent; As was ruled in the case of St. Charles ex rel. v. Deemar, 174 Mo. 122, the recitals in the bill of exceptions can by no means supply other necessary and essential record entries. So far as this abstract discloses there is nothing to distinguish the matters of record from those which are purely matters of exception, and can only be made a part of the record by filing a duly authenticated bill of exceptions. This abstract is very similar to the one in Reno v. Fitz Jarrell, 163 Mo. 411. In that case, as in the case at bar, the .court was unable to tell where the bill of exceptions began or ended, and it was held insufficient; and the ruling in that case was approved in State v. Baty, 166 Mo. 561. It therefore follows that there is nothing before us in this proceeding for review except the record proper. Directing our attention to such record it is sufficient to say that we have carefully and critically examined the petition of the plaintiff as well as the petitions by the interveners,' and find that they fully and properly state a good cause of action, and from the facts therein stated were clearly entitled to the relief awarded them by the decree and judgment of the court.

Finding no reversible error in the record before us, the decree and judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    QUAIL, Appellant, v. LOMAS et al.
    Division Two,
    December 22, 1906.
    1. ABSTRACT: Skeleton Bill: Calls: Documents Left With Clerk. Deeds, deeds of trust and other documents offered in evidence, may be printed as a part of the abstract, if they are called for in the bill of exceptions and clearly identified by the words therein, even though not set out in the bill. And merely because they were not filed and left with the clerk until after the termination of the appeal is not sufficient reason for holding that they can not be printed in the abstract as a part of the evidence.
    2. ELECTION DOWER: Interest in Excess of Homestead. Whether or not the homestead set off to the widow and the minor children exceeds one-third the value of all the lands belonging to intestate, has no place in determining her interest in those lands, where she had elected to take a child’s part absolutely in lieu of her dower of one-third for life. Whether the homestead is less or in excess of one-third the value of the lands, is immaterial, for. having elected to take a child’s part she has the same fee simple interest in all the lands that each child has. t

    3. -: -: Mortgage and Sale. The owner of 340 acres of land died intestate, leaving a widow and six children. She elected to take a child’s part, and a homestead was set off in 160 acres, and valued at $1,500, and the whole tract at $3,000. Thereafter she borrowed $700 and secured its payment by a mortgage on the entire tract. Held, that the fact that the homestead exceeded one-third the value of the entire estate did not affect the validity of the deed of trust, but on foreclosure sale the purchaser acquired the widow’s entire interest in the whole, and is entitled to partition in the 180 acres not included in the homestead.
    4. -: Sale: Partition: Homestead. The fact that homestead has been assigned and the widow has elected to take a child’s part, and has sold her entire interest in all the lands, does not entitle her grantee to partition of the homestead so long as the children continue minors; hut he is entitled to partition in the rest of the lands. He succeeded to the widow’s rights in the homestead, and between the widow and minor children there can he no partition of the homestead.
    Appeal from Polk Circuit Court. — Hon. Argus Cox, Judge.
    Reversed and remanded.

      Rechoiv S Pufahl for appellant.
    (1) (a) The widow, in connection with the minor children, was entitled to a homestead in the premises. R. S. 1899, sec. 3620'. (b) In addition to the homestead, she was entitled, under section 2944, Revised Statutes 1899, to elect to take a child’s part. Rhorer *v. Brockhage, 13 Mo. App. 397, 15 Mo. App. 21, 86 Mo. 544; Matney v. Graham, 50 Mo. 559; Quick v. Robbins, 34 Mo. 226; Wigley v. Beauchamp, 51 Mo. 544; Newton v. Newton, 162 Mo. 173; Adams v. Adams, 183 Mo. 408; Hill v. Evans, 91 S. W. 1022. (2) Having elected to take a child’s part, she became vested in fee simple of an undivided one-seventh interest in the premises in addition to the right of homestead which she already had and all of which she conveyed by deed of trust and of all which, under the trustee’s sale, appellant became the owner. Authorities supra. (3) It was error to admit evidence subject to objections. Seafield v. Bohne, 169 Mo, 546.

      O. M. Toivnsend and G. E. Skinker for respondents.
    (1) The alleged deed of trust, and the alleged trustee’s deed made in foreclosure of the same, not having been incorporated in the bill of exceptions, nor deposited with the clerk, to remain in his custody until after the hearing in the appellate court, are not preserved in the record and cannot be considered by the court. Laws 1903, p. 105; Carp v. Ins. Co., 107 Mo. App. 352; State v. Griffin, 98 Mo. 672; State v. Buck, 130 Mo. 480; State v. Laycock, 136 Mo. 93. (2) Where a special method is prescribed by law for the doing of a thing the maxim, expressio un-ms exclusio alterius, applies, and by necessary implication forbids and renders nugatory the doing of the thing specified except in the particular way pointed out. Therefore, the act of 1903 which provides that written or printed matter offered in evidence may be preserved for review by the appellate court if called for by the bill of exceptions and properly identified and deposited with the clerk, to remain in his custody, etc., by necessary implication excludes any other method of preserving such evidence. Heidelberg v. St. Francois Co., 100 Mo. 74; State ex rel.4 v. Fisher, 119 Mo. 344; Ex parte Arnold, 128 Mo. 263; State v. Jackson, 95 Mo. 657; Kansas City v. B. & L. Assn., 145 Mo. 53; Nichols v. Nichols, 147 Mo. 409; Taylor v. Pullen, 152 Mo. 438; State ex inf. v. Lund, 167 Mo. 228; Hemelreich v. Carlos, 24 Mo. App. 273; Binde v. Klinge, 30 Mo. App. 288; McKissick v. Mfc. Pleasant Twp., 48 Mo. App. 416; Globe Furn. Co. v. Dist. 7, 51 Mo. App. 549; State v. Holman, 96 Mo. App. 193. And this is the construction which has been given to the act of 1903 by the Court of Appeals in Carp v. Ins. Co., 107 Mo. App. 352. (3) The widow and minor defendants took the homestead as joint tenants, and not as tenants in common, and such homestead cannot be partitioned, nor can the interest of the minors therein be affected by any act or deed of tbe widow. Canole v. Hurt, 78 Mo. 649; Kochling v. Daniel, 82 Mo. 54; Bhorer v. Brockhage, 86 Mo. 544; Hufschmidt v. Gross, 112 Mo. 649; Gore v. Bilev, 161 Mo. 238. (4) Section 3621 of the homestead act and sections 2933 and 2944 of the dower act, Bevised Statutes 1899, all relate to the interest which a widow may take in the lands of her deceased husband, are in pari materia, and must be construed together. Sutherland, Statutory Const., sec. 284; State v. Klein, 116 Mo. 265; State ex rel. v. Slover,, 126 Mo. 659'; Kansas City Brick Co. v. Barker, 50 Mo. App. 60. And should be treated as if they were embodied in one section. St. Louis v. Howard, 119 Mo. 45; Sales v. Barber Asphalt Co., 166 Mo. 667. Chapter 21 Revised Statutes 1899, entitled “Dower,” provides various ways in which a widow may be.endowed, and while she may elect so as to take her dower in the way which she considers most beneficial to herself, still the interest which she takes in the real estate of her deceased husband, under the provisions of said chapter, is “dower.” In section 2944 the Legislature in express terms denominates what the widow takes under said section as dower. The provision is that in lieu of the dower provided for her by section 2933, she may “elect to be endowed absolutely in a share of such lands equal to the share of a child,” etc. Therefore, the term “dower” used in section 3621 must be construed to mean what the Legislature has defined to be dower and cannot be restricted to the dower provided for by any one section. The provision is that the commissioners appointed to set out homestead shall, “in cases where the right of dower also exist, also set out such dower, and they shall first set out such homestead, and from the residue of the real estate of the deceased shall set out such dower, but the amount of such dower shall be diminished by the amount of the interest of the widow in such homestead.” This clearly requires the homestead to be deducted from tbe dower, and bas been so construed. Graves v. Cochran, 68 Mo. 74; Bryan v. Rhodes, 96 Mo. 485. And the widow and minor children each being seized, as joint tenants of the entire homestead, the value of the entire homestead must be deducted from the dower. Gore v. Riley, 161 Mo. 238. (5) As the homestead exceeded the widow’s one-third interest for life in the lands of her deceased husband, there was nothing for her election to operate upon. Gore v. Riley, supra.
   GANTT, J.

This is a suit for partition of the lands of which John H. Lomas died seized and possessed in Polk county on the 13th day of August, 1900'.

Said Lomas died intestate and left a widow, Dicy N. Lomas, and six children, Bertha C., John A., Ellen G., Jesse C., Anne and Carl Lomas, all minors. On' the 31st day of August, 1900, letters of administration were granted by the probate court of Polk county to the widow, Dicy Lomas, who duly qualified and took charge of the estate. On the 26th day of November, 1901, said widow made her election to take a child’s part of said estate" in lieu of dower, and duly acknowledged the same and it was recorded November 27, 1901. On the 26th of November, 1901, said widow filed her application in the probate court of Polk county to have a homestead set off to her and her said minor children, and in due form and time commissioners were appointed, who went on the lands and set apart one hundred and sixty acres, of the value of fifteen hundred dollars, as and for said homestead.

John N. Lomas owned the following lands in Polk county at the date of his death, to-wit: The northeast quarter and the northeast quarter of the northwest quarter and the east half of the southeast quarter and the northwest quarter of the southeast quarter and five acres out of the northeast corner of the southeast quarter of the northwest quarter, all in section 24, township 32, range 24, and the west half of the southwest quarter of section 19, township 32, range 23, about 340 acres.

Out of this tract the commissioners set apart the north half of the northeast quarter and the southwest quarter of the northeast quarter, less five acres on the east side thereof, and the northeast quarter of the northwest quarter and five acres out of the northeast corner of the southeast quarter of the northwest quarter, all in section 24, township» 32, range 24.

On the 6th day of June, 1902, the widow, Dicy N. Lomas, borrowed seven hundreds and fifty dollars from the plaintiff, and gave her note therefor, payable two years after the date thereof and bearing interest at the rate of eight per cent per annum, and on the same day made, executed and delivered a deed of trust to Jesse Wiley as trustee to secure the plaintiff the payment of said note. By said deed of trust the said Dicy Lomas conveyed the entire tract of land above described of which the said John H. Lomas died seized, to secure the payment of said note. Afterwards on account of the default of the said Dicy to pay said note and comply with the conditions of said deed of trust, the trustee therein, Jesse Wiley, proceeded to advertise and did advertise and sell the whole of said real estate at public auction at the courthouse door at Bolivar, the county seat of Polk county, and at said sale, the plaintiff being the highest bidder therefor, the same was struck off and sold to him by the said trustee, and on the 12th day of September, 1903, the trustee executed his trustee’s deed conveying all of said real estate to the plaintiff. On the part of the defendants the evidence tended to show that the entire tract of land was worth from three thousand to thirty-five hundred dollars at the time the homestead was set off to the'widow and children, and that the homestead tract of one hundred and sixty acres was valued at fifteen hundred dollars. After the death of her husband, the widow built a two-room house on the farm and put up some wire fences around the tract. The plaintiff claiming to have acquired by virtue of his deed of trust from the widow and his trustee’s deed foreclosing the same, an undivided one-seventh interest in the said lands, on the 20th of October, 1903, began this suit for partition of the said premises. At the November term, 1903, O. M. Townsend, Esq., was appointed, guardian ad litem. Upon the motion of Mr. Townsend, however, showing to the court that A. C. Fink was the regularly appointed and duly qualified guardian and curator of the said minors and upon the voluntary appearance of the said Fink he was permitted to become a party to the suit and to defend the interest of the said minors. The widow filed a separate demurrer to the plaintiff’s petition, which was overruled, and thereafter she filed no further pleading in the'cause. The minors by their guardian ad litem and curator of their estate, for their separate answer, admitted that their father died seized of the lands described in the petition, leaving Dicy N. Lomas as his widow and the said minors as his only children and heirs at law. They admitted that the land described in the plaintiff’s petition as a homestead had been set off to the said widow and children and that the- minor defendants were in possession thereof and living thereon. Further answering they stated that they had no knowledge of any transaction between the plaintiff and the widow Dicy Lomas, but that they were not interested in or affected by any such transactions,if any such there were. “Further answering defendants state that all of the land described in plaintiff’s petition, as being owned by said John H. Lomas at the time of his death, did not exceed in value the sum of three thousand dollars and that the commissioners appionted by the probate court to set out said homestead and widow’s dower, if she was entitled to any, valued all said lands at three thousand dollars, and set out the homestead, valued at fifteen hundred dollars, to the said widow and these minor defendants and did not set out any dower to said widow because she was not entitled to any dower therein, and these defendants deny that she was entitled to or could legally elect to take a child’s part in any part of said land in lieu of dower.” They denied that either the plaintiff or Dicy N. Lomas has or is entitled to an undivided one-seventh interest in said real estate or any part thereof and denied that plaintiff has any interest or estate whatever in said real estate or any right to have the same partitioned. The cause came on for trial on the 7th day of January, 1904, and was submitted to the court upon the evidence and the court found the issues for and gave judgment for the defendants. In due time the plaintiff filed his motion for a new trial, which was heard and overruled and the plaintiff saved his exceptions and thereupon the plaintiff prayed an appeal to this court, which was granted.

I. Preliminary to a consideration of the merits of this appeal, a question has been raised by the defendants as to the sufficiency of the bill of exceptions to preserve and bring to this court the deed of trust given by Dicy Lomas to Jesse Wiley, trustee, to secure the séven hundred and fifty dollar note, executed by said Dicy to the plaintiff herein of date June 6, 1902, and also the trustee’s deed executed by the said trustee to the plaintiff of date September 12, 1903, and recorded the same day in the recorder’s office of said county, and in aid of this contention the defendants have filed in this court a certificate of the clerk to what purports to be a copy of the bill of exceptions as filed in this cause, wherein the said deed of trust and the said trustee’s deed are not set out in full, but are called for in the following manner: “By Mr. Rechow, attorney for plaintiff: ‘We offer in evidence the deed of trust given by Dicy N. Lomas to Jesse Wiley, trustee, dated June 6, 1902, and acknowledged June 6, 1902.’ To which defendants by counsel object for the reason it shows upon its face it was given after the setting out of the homestead alleged in the petition and is incompetent, irrelevant and immaterial, and because said deed of trust did not pass such an interest as would entitle any one holding under it to maintain partition (to go in subject to objection). .The above deed of trust offered in evidence by the plaintiff was here marked Exhibit ‘C’, and was read in evidence in the following words and figures, to-wit: (copy here). By Mr. Bechow for plaintiff: ‘We offer in evidence the trustee’s deed under sale, from Jesse Wiley, trustee, to Bobert Quail, dated September 12, 1903, acknowledged September 12, 1903, recorded September 12, 1903, in book 85, at page 265;’ to which defendants by counsel object for the reason that there is no notice of trustee’s sale attached to it (to go in subject to any further objections which may be hereafter made). Defendants object for the further reason that the debt secured by the deed had not matured. The above deed was marked ‘Exhibit D ’and was here read in evidence in the following words and figure's, to-wit (copy here).”

The plaintiff in his abstract filed in this court, had copied in full the said deed of trust called for in the bill of exceptions and also the trustee’s deed therein marked “Exhibit D,” and the question now arises whether the fact that these two instruments called for in the bill of exceptions by the name of grantor and grantee and the date of their acknowledgment and the record in the recorder’s office, are properly part of the record before us. The practice of filing a skeleton bill of exceptions in the circuit court has prevailed for many years in this State, and calling therein for deeds, depositions and other exhibits read in evidence by referring to them and describing them so clearly that no mistake can he made as to their identity. [Crawford v. Spencer, 92 Mo. 498; Myers v. Myers, 98 Mo. 262; Tipton v, Renner, 105 Mo. 1; Pitkin v. Shacklett, 106 Mo. 571; Stern v. Foltz, 152 Mo. 558; Carlin v. Wolff, 154 Mo. 544; Martin v. Castle, 182 Mo. 224.] Had this cause come to this court on a full transcript certified by the clerk there cannot be any doubt that, under the above decisions, the deed of trust and trustee’s deed called for in the bill of exceptions were so clearly identified that it would have been the duty of the clerk to have certified them in full to this court, but it is insisted by the learned counsel for the defendants that the act of February 23, 1903, Laws of Missouri, 1903, page 105, and known as section 866, has changed this rule of practice. That act provides: “But it shall not be necessary, for the review of the action of any lower court on appeal or writ of error, that any pleading, motion, instruction or record entry in the case, or any written or printed matter offered in evidence upon the trial and properly identified and deposited. with the clérk, to remain in his custody until after the determination of the cause in the appellate court, shall be copied or set forth in the bill of exceptions filed in the lower court. Provided, the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court. ’ ’ The reading of the above act will demonstrate, we think, that its purpose was to conform the statute in regard to making of hills of exceptions to the established practices of the courts of this State. It liberalized that practice instead of evidencing any purpose of condemning the action of the courts on this subject. Indeed, the only additional thing which the act above noted requires, is that the documents therein referred to “shall be deposited with the clerk to remain in his custody until after the determination of the cause in the appellate court. ’ ’ This provision is a wise one and will obviate all difficulty as to the identity of the instruments copied into the transcript, and those offered and read in evidence on the trial, but while the act permits the instruments or documents named therein when properly identified and deposited with the clerk to be copied and set forth in the transcript without having been copied at length into the bill of exceptions, there are no negative words indicating that a bill of exceptions calling for documents and instruments in the manner long approved by the decisions of this court would not constitute a part of the record, and that those instruments should not be copied in full by the clerk in certifying the transcript to this court, or by counsel by making their abstracts under the provisions of section 813. Accordingly, we think that under the settled practice of this court, the deed of trust and the trustee’s deed, identified as they were by the skeleton bill, are parts of the record, which we must consider in the determination of this appeal. If either of said instruments had been incorrectly copied or matter interpolated into them which was not therein when they were offered and* read in evidence, it would have been perfectly competent for. the defendants in this case to have called attention to these inaccuracies or unauthorized interpolations and corrected the same by their counter abstract, but it will be observed that it is not claimed by defendants that these documents as copied into the plaintiff’s abstract are not correctly and truly set forth therein, but merely that because they were not filed and left with the clerk to remain in his custody until after the determination of this appeal they cannot be considered. We are unwilling to give the statute such a narrow construction.

II. The circuit court held that the widow had no election because the homestead exceeded in value one-third of all the lands of which her husband, John H. Lomas, died seized, or that there was no estate remaining after the setting off of the homestead npon which her election conld take effect, basing its ruling upon section 3621, Revised Statutes 1899, which provides: “The commissioners appointed to set out such homestead shall, in cases where the right of dower also exists, also set out such dower, and they shall first set out such homestead, and from the residue of the real estate of the deceased shall -set out such dower, but the amount of such dower shall be diminished by the amount of the interest of the widow in such homestead; and if the interest of the widow in such homestead shall equal or exceed one-third interest for and during her natural life, in and to all the real estate of which such housekeeper or head of a family shall have died seized, no dower shall be assigned to such widow. ’ ’ The above section makes provision for reducing the widow’s common law dower of one-third of the lands of which her husband died seized by the amount of her interest in the homestead. By its terms it is restricted to dower of one-third and dower in its usual and ordinary acceptation. The language of this section is utterly incongruous when we attempt to apply it to the estate which a widow may elect to take under either section 2939 or 2944, Revised Statutes 1899, by whatever name it may be designated, and it was ruled in Adams v. Adams, 183 Mo. 396, that the homestead could not be considered as a part of the widow’s dower when she elected to be endowed under section 2939, Revised Statutes 1899, but she was entitled to her homestead and one-half of the land in addition thereto by virtue of her election; that the Legislature had made no provision for deducting the widow’s interest in the homestead from what is termed her “election dower.” In MeFadin v. Board, 188 Mo. 688, the question arose as to the right of the widow to a homestead in a case in which her election of a child’s part gave her a share of the estate of more value than the homestead, and Brace, P. J., speaking for the court, said: “Without stopping to review the reasoning by which such a manifestly erroneous conclusion was reached, it is sufficient to say, that while that section [3621, R .S. 1899] does provide a way in which a widow’s dower may, so to speak, be swallowed up in her homestead, it provides none by which her homestead.may be swallowed up- by her dower, and necessarily so, for the homestead is not only for the widow but for the minor children. Moreover, the dower, which under that section, may be swallowed up in the homestead is not a dower, if so it may be called, which the widow takes by election. The dower to which that section applies is by its terms ‘one-third interest for and during her natural life’, or dower proper. The estate which the widow takes by her election is an estate in fee simple subject to her husband’s debts, and, call it what you may, it is not the dower contemplated in that section [3621] of the statute, and we find nothing m the cases cited to warrant such an application of it as was made by the court below. ’ ’ "While the position of the parties are reversed in the two cases, the construction of section 3621, Revised Statutes 1899, applies with equal persuasiveness to the ease in hand. Mrs. Lomas made and filed her election before the homestead was set off to her and her children and by that election she became and was seized of an undivided one-seventh of the lands of which John H. Lomas died seized, and the commissioners appointed to set off the homestead had nothing todo with her fee simple interest in the land acquired by her election and it is significant that they •made no attempt to do so, but valued and assigned the homestead, the only matter confided to them. The widow then having become seized of an undivided one-seventh of all the land subject to the homestead of herself and children, there was no obstacle to- her conveying the same as she did by her deed of trust to Jesse "Wiley, in trust, to secure the payment of her note for seven hundred and fifty dollars to the plaintiff Quail, on the 6th of June, 1902, and when she failed to comply with the conditions of that deed and the trustee sold and conveyed her interest in the lands to plaintiff he became in her stead the owner of one undivided one-seventh of said lands, subject of course to the homestead of the minors during- their minority. As to the homestead, he could and did obtain no higher or different estate or right than that owned by his grantor, the widow, Mrs. Lomas. As between her and the minor children she was not entitled to have the one hundred and sixty acres so set apart partitioned, or the rights of the minors therein impaired during their minority. [Rhorer v. Brockhage, 86 Mo. 544; Hufschmidt v. Gross, 112 Mo. 649; Beckner v. McLinn, 107 Mo. 277.]

As to the one hundred and eighty acres not included in the homestead, the widow could have maintained an action for partition, and the plaintiff having acquired her title has the same present right to a partition as against the children, and the circuit court erred in re-fusing him this right. The judgment of the circuit court is reversed and the cause remanded to be proceeded with in accordance with the views herein expressed.

Burgess, P. J., and Foco, J., concur.


author: FOX, J.

text:
    CHARTER OAK LAND & LUMBER COMPANY v. GEORGE BIPPUS, Revived against SARAH A. BIPPUS, Widow, and JAMES E. BIPPUS, only Heir of GEORGE J. BIPPUS, Appellants.
    Division Two,
    December 22, 1906.
    1. SUIT FOR TAXES: In Rem. Inasmuch as the law requires a suit for taxes to be brought against the owner of the land, the action, in its inception, is hot strictly one in rem. But after jurisdiction' over the subject-matter has been acquired by suit brought against the owner, thereafter' in all its subsequent proceedings, including judgment and execution, it is one in rem; that is, the proceedings thereafter are against the property, and not against the owner.
    2. -: Who is the Owner? The owner against whom a suit for taxes must be brought is the actual owner if known, or if not known the apparent owner as shown by the record of land titles in the county at the date of commencing the suit.
    3. -: Sale: Title Acquired. A purchaser at an execution sale acquires no title to real estate until a deed for it is executed by the proper officer.
    4. -: Sale But No Deed: Subsequent Salei for Different Taxes: Knowledge of Collector. In 1SS7 judgment was rendered against McBlroy, the actual and record owner, for taxes for 1879 to 1885, and the land sold under execution in 1888, but the sheriff executed no deed to the purchasers, and his term expiring and he having moved from the State, his successor on September 23, 1891, excuted a deed to the purchasers, who were defendants’ grantors. In 1891 suit- was brought against the same McBlroy as the record owner for the taxes for 1887 and 1888, judgment was rendered, the levy made and the land sold to plaintiff’s grantor and a deed was executed on September 23, 1891. Held, that the suit for the taxes for 1887 and 1888 was properly brought against McElroy, as the record owner, and plaintiff has the title. It would have been improper to have brought such suit against the purchasers under the first judgment and sale, for no deed having been executed to them, they were not the owners within the meaning of the statutes applicable to tax proceedings. And not being the owners, the fact that the collector and the purchaser at the last sale had knowledge of the prior judgment and sale, does not affect the question as to wiho was the proper defendant in the last tax suit. The title, in fact, was still in McElroy.

      5. -: -: -: Relation. While it is true that a deed executed by an officer under execution sale, as to the defendant in the execution and his privies and strangers purchasing with notice, relates back to the date of the sale and vests the title in the grantee named therein from that date, still as no deed had been executed to the purchasers under the first judgment until after the judgment for the taxes for subsequent years had b.een rendered and sale made, the purchasers at the tax sale had no deed upon which the doctrine of relation could operate, neither were they the owners, within the meaning of the statute applicable to tax proceedings, until such deed was executed.
    *». -: -: Presumptive Knowledge of Purchaser. Purchasers at a tax sale, to whom a deed was not executed, if they claim to be owners of the property, presumptively know that taxes for other years not involved in the suit through which they claim have not been paid, and that such taxes constitute a lien on the property; and if they fail to make known their ownership they will be presumed to have notice of the pendency of a suit against the record owner for the taxes for those years.
    Appeal from Stoddard Circuit Court, — Hon. James L. Fort, Judge.
    Appirmed..

      Geo. Houck and C. L. Keaton for appellants.
    (1) The tax lien on the land for which it was sold under the judgment'in defendant’s tax deed to Weber and Jones was a first and paramount lien created by public statute and disclosed by public records and related to the date of levy under the law. R. S. 1879, sec. -6717; R. S. 1899, sec. 7570; R. S. 1899, sec 9187; Fleck•enstein v. Baxter, 114 Mo. Mo. 495; Boyd v. Ellis, 107 Mo. 401; Board of Trustees v. Fry & Woods, 192 Mo. 560. ■ The judgment for the taxes was also a lien and partakes of the nature of and is like a mortgage lien. The tax lien is not merged into the judgment. The judgment is simply the conduit through which the tax lien is enforced against the land. R. S. 1879, sec. 6838; R. -S. 1889, sec. 7683 ; R. S. 1899, sec. 9304; Board of Trustees v. Fry & Wood, 192 Mo. 560; Boyd v. Ellis, 107 Mo. 400. The lien is not merged in the judgment and does not expire in three years as in the case of gen-eral judgments. Fleckenstein v. Baxter, 114 Mo. 494; Board of Trustees v. Fry & Woods, 192 Mo. 560. (2) The State’s lien for taxes, the judgment thereon and the sale under such judgment are all disclosed by public records, and thé plaintiff and all those through whom it holds had notice and knowledge of the sale and deed to Weber -and Jones. Fleckenstein v. Baxter, 114 Mo. 496. (3) The tax deed to Weber and Jones related back to the sale made by the sheriff, March 6,1888, and passed the title in fee from that date; under Revised Statuaes 1899', section 9305. Boyd v. Ellis, 107 Mo. 401. (4) E. M. Weber and Ligón Jones became the owners in fee under their purchase at the sheriff’s sale and the sheriff’s deed, and were such owners at the institution of the suit by the collector, Joseph Howell, the same collector who instituted the first suit and with full knowledge and notice that Weber and Jones were the owners. When they purchased under the judgment in 1888, they “acquired a good title against all prior liens-created by (McElroy), but subject to all the valid tax liens to which the property was then or subsequently subject. The statute . . . required the suit . -. . to be brought against tire owner. The defendant was the then owner. The action could not be brought against (McElroy) who was the owner when .the lien accrued, because his title had previously passed to the defendant, or to Metheny, under whom he claimed.” Excelsior Springs v. Henry, 99 Mo. App. 453; R. S. 1899, secs. 9302, 9303, 9304, 9305; Burnham v. Manewal, 94 S. W. 520; Land &.Lumber Co. v. Franks, 156 Mo. 687; Board of Trustees v. Fry & Woods, 192 Mo. 560. E. M. Weber and Ligón Jones then as the owners by relation of their sheriff’s deed to date of sale were the proper and only proper parties defendant to the tax suit under which plaintiffs claim; as they were not made parties defendant, the tax deed to. James W. Buchanan conveyed no title whatever, since McElroy had no title to convey. R. S. 1899, secs. 540, 544 and 9303; Excelsior Springs v. Henry, 99 Mo. App. 450;, Perlrinson v. Meredith, 158 Mo. 462; Wood v. Smith,, 193 Mo. 490; Blevins v. Smith, 104 Mo. 590.

      Ralph Wammack and M. A. Gorrill for respondent,
    (1) Proceedings to enforce tax liens are not strictly in rem, hut are to be proceeded with as ordinary actions against real estate. The judgment must be special, and even on personal service, there can be no personal judgment. The suit is against the land in one sense, and the ownership is a matter of secondary consideration. Gritchell v. Hr eider, 84 Mo. 472; Milner v. Shipley, 94 Mo. 106; Stewart v. Allison, 150 Mo. 343. (2) The collector, in instituting a suit for taxes, is only obliged to look to the record of deeds, to see who the owner of the property is, and a judgment for taxes against the apparent owner conveys a good title to the purchaser at the tax sale, as against the true owner, whose deed is not recorded at the date of the institution of the tax sale. Yance v.-Corrigan, 78 Mo. 94; Watt v. Donnell, 80- Mo. 195; Payne v. Lott, 90 Mo. 676; Evans v. Robberson, 92 Mo. 192; Allen v. Ray, 96 Mo. 547; Simonson v. Dolan, 114-Mo. 176; Nolan v. Taylor, 131 Mo. 228; Weir v. Lumber Co., 186 Mo. 388; Wood v. Smith, 193 Mo. 489. It has been held that a purchaser at a tax sale, who is entitled to a tax deed, but who had not procured and recorded it before the commencement of an action against the same land for the delinquent taxes, of a subsequent year, is not the owner of the land, within the meaning of the Revised Statutes 1899, section 7682, requiring such action to be against the owner of the property. Hilton v. Smith, 134 Mo. 499. (3) Not only was D. W. McElroy the apparent record owner at the time of the second tax suit and sale, but he was the legal owner, as well, for the reason that no deed, at that time, had been executed by the sheriff, conveying McElroy’s title to "Weber and Jones. It has been uniformly held that a purchaser at an execution sale acquires no title to real estate sold until the deed for it is executed by the proper officers. Land & Lumber Go. v. Pranks, 156 Mo. 689'; Boyd v. Ellis, 107 Mo. '401.
   FOX, J.

This cause is now pending in this court upon appéal from a judgment of the circuit court of Stoddard county in favor of the plaintiff and against the defendant. The judgment is predicated upon an action instituted by plaintiff under the provisions of section 650, Revised Statutes 1899, to ascertain and define the title as between the plaintiff and the defendant to the northeast quarter of section 25, township' 24, range 12 east, situate in Stoddard county, Missouri. The land in controversy is wild unimproved timber land, and the legal title is alone before the court for determination.

The record discloses that there is no dispute as to the common source of title, both parties claim through execution sales enforcing tax judgments against David W. McElroy, who was the owner of the land. This history and origin of the deeds through which both respondent and appellants claim title to this land may thus be briefly stated:

On September 10, 1887, a judgment was rendered against David W. McElroy, owner of the land now in controversy, for the taxes against said land for the years 1879 to 1885 inclusive, and special execution was issued upon such judgment November 1, 1887, returnable to the March term, 1888. The land was levied upon December 16, 1887, and sold on March 6, 1888. E. M. Weber and Ligón Jones became the purchasers of the land at such sale; however, the record discloses that the sheriff did not execute a deed to the purchasers; E. M. Weber and Ligón» Jones. After the term of the sheriff who made such sale had expired and he had removed from the State, the then acting sheriff on the 16th day of September, 1891, executed as the successor to the sheriff in office at the time the sale was made, a deed to the land in controversy. This deed was acknowledged on the 23rd day of September, 1891, in open court at the September term, 1891, of said court. This deed was not recorded until the 16th day of November, 1891, in book “Y” page 481 of the land records of Stoddard county, Missouri. Ligón Jones and E. M. Weber executed a quit-claim deed dated February 20, 1902, conveying all their right, title and interest to the land in controversy to George Bippus, the original appellant in this cause. It is under these conveyances that the appellants claim title.

The taxes on this land were not paid for the years 1887 and 1888, and David McElroy still being the record owner of said land, the collector, for the purpose of enforcing the State’s lien for such taxes of 1887 and 1888, brought a suit against said McElroy, returnable to the March term, 1891, of the circuit court of Stoddard county, Missouri, and a judgment was rendered on March 1, 1891, for the taxes heretofore stated, for the years 1887 and 1888, and execution was issued upon such judgment for the purpose of enforcing the lien therein declared, returnable to the September term, 1891, and said land was sold as the property of David W. McElroy on September 17, 1891. At such sale James W. Buchanan purchased the land; the sheriff accordingly on September 17, 1891, executed a deed conveying to him the land sold. This deed was acknowledged in open court on the 23d day of September, 1891, and was placed on record September 26, 1891, in book 2, page 4, of the land records of Stoddard county. On September 28, 1900, James W. Buchanan and wife and John R. Reddick and wife by warranty deed conveyed the land in controversy to T. E. Griesa. This deed was recorded September 29, 1900, in book 33, page 168, of the land records of Stoddard county. On July 14, 1901, T. E. Griesa and wife, by warranty deed, conveyed the land in controversy to the respondent in this cause, the Charter Oak Land & Lumber Company, which deed on the 27th day of July, 1901, was recorded in book 15, page 589, of the land records of said county. It is under and by virtue of these conveyances that plaintiff claims title to the land in controversy.

At the close of the evidence the court gave the following declaration of law at the request of the defendant:

‘ ‘ The court declares the law to be that if the court find and believe from the evidence that the defendant, Geo. Bippus, holds and claims title through and by virtue of a sale of the land in controversy under a proceeding to foreclose and enforce the lien for unpaid taxes assessed against said land against the record owner thereof, then the court will find that defendant’s claim and title relates at least to the date of judgment in that behalf and constitutes a superior and paramount title. If the court finds that plaintiff’s title has emanated from proceedings subsequent thereto, and said proceedings for delinquent taxes being manifested by public record, then the court will find that plaintiff, and all others taking title subsequent to said judgment, took with notice, and the court will find for the defendant, Bippus, and enter a decree accordingly. ’ ’

The abstract of record filed by appellants and now before us discloses that after the giving of such instruction the court in the first instance found for the defendants; subsequently this finding was changed by the court and a finding was made for the plaintiff and a decree and judgment entered accordingly. A timely motion for new trial was tiled by tbe defendant and by tbe court overruled, and from tbe judgment and decree entered in the cause tbis appeal' was in due time and proper form prosecuted to tbis court, and tbe record is now before us for consideration.

OPINION.

It is apparent from tbe record in tbis cause that there is but one question to be determined, and that is which of these parties to tbis proceeding acquired title to tbe land in controversy under the tax judgment as heretofore indicated in the statement of this cause. Tbe two conflicting contentions of appellants and respondent in tbis proceeding may thus be briefly stated:

On tbe part of tbe appellants it is contended that the deed executed by J. R. Barham, sheriff of Stoddard county, Missouri, as successor to D. W. Sanford, on September 16, 1891, predicated upon a judgment for taxes against David W. McElroy on tbe 10th day of September, 1887, and a sale in pursuance of said judgment made on tbe 6th day of March, 1888, conveyed tbe title to tbe land in controversy to E. M. Weber and Ligón Jones, which was by them subsequently conveyed to tbe appellants in tbis cause.

On tbe part of tbe respondent it is insisted that the taxes of 1887 and 1888 not having been paid, constituted a lien upon the land in controversy; that tbe collector instituted a suit to enforce tbe lien o,f tbe State, and that be bad the right to maintain a proceeding to enforce such lien for such taxes. That at tbe date of tbe commencement of tbe suit tbe land in controversy was assessed in tbe name of David W. McElroy and that be was at tbe time of tbe institution of tbe suit tbe record owner and the only proper party against whom such proceeding could be maintained for tbe enforcement of tbe State’s lien for tbe taxes of 1887 and 1888. It is also insisted that tbe judgment rendered on April 6, 1890, against McElroy for the taxes of 1887 and 1888 was a proper judgment and that E. M. Weber and Ligón Jones not having received a deed for said land under their purchase in pursuance of the tax judgment of 1887, were not either proper or necessary parties to the proceeding to enforce the State’s lien for the taxes of 1887 and 1888, and said Weber and Jones not having received any deed to said property under their purchase either at the time of the commencement of the suit by the collector for the taxes of 1887 and 1888 nor at the time of the rendition of the judgment or the sale in pursuance of the judgment, and not having their deed recorded until the 16th day of No-, vember, 1891, the sale of the land in controversy under the tax judgment of April 6, 1890, and the deed executed in pursuance of such sale to James W. Buchanan, conveyed to him the legal.title to the land in controversy, and his title through mesne conveyances having been lodged in the plaintiff in this cause, the judgment of the trial court was strictly in accord with the law applicable to this cause.

The legal propositions disclosed by the record before us necessitates a brief review of the law applicable to proceedings by the State to enforce its lien for taxes against the land upon which such taxes have been assessed. A proceeding to enforce the lien of the State for taxes is not one strictly in rem, but is fully recognized by reason of the nature and character of the proceeding, and the judgment authorized to be entered, as one in the nature of an action in rem. As was said in the case of Hilton v. Smith, 134 Mo. l. c. 508: “The statute requires the suit to be brought against the owner of the land charged with the lien of the State for taxes. For this reason the proceedings are not strictly in rem; but after jurisdiction of the subject-matter is acquired the proceedings are against the property. It is said in Allen v. McCabe, 93 Mo. 144: ‘It must be remembered that, although the statute makes it necessary that the owner of the property should be made a party, and this is necessary to call into activity the jurisdiction of the court over the subject-matter; yet, when this is done, the proceeding is in rem against the property to- enforce the lien of the State on that property, subordinate to which the owner holds his title; the judgment is in rem. The execution goes against, and the sheriff sells, the.prope-rty, and not the- interest of any particular person in it. And his deed conveys, in the language of the statute, “a title in fee to the purchaser” ’ ” It is well settled in this State that the owner against whom suit must be brought and thereafter prosecuted, “is the actual owner if known, or if unknown the apparent owner as shown by the record of land titles in the county;” and as was said in Hilton v. Smith, supra: “The law points the revenue officers of the State to- these records for the evidence of ownership upon which to base their official action. The ownership includes all persons who have known or recorded interests in the land at the time the suit is commenced. The date of commencing the suit is the time fixed for determining the ownership. ’ ’

It is no longer an open question in this State that the officers in suits wherein it is sought to enforce the lien of the State for taxes, in the absence of notice to the contrary, may look to the record of deeds to see who the owner of the property is, and a purchaser under the judgment in such suits against the record owner, in the absence of notice that such person against whom the suit was brought was not the true owner, would be protected in his purchase against the holder of an unrecorded deed from such apparent record owner. [Vance v. Corrigan, 78 Mo. 94; Payne v. Lott, 90 Mo. 676; Evans v. Robberson, 92 Mo. 192; Allen v. Ray, 96 Mo. 547; Nolan v. Taylor, 131 Mo. l. c. 228; Hilton v. Smith, 134 Mo. 499.]

In Allen v. Ray, supra, the principle upon which the foregoing cases rest, is very clearly stated. That is: “ That every person not having actual notice as to who is the real owner of lands, has a right to rely upon the records provided by law to be kept for the purpose of showing that ownership; to give notice of that fact is the object of their existence. The law points the revenue officers of the State to these records of the evidence of ownership, upon which to base their official action in the assessment and collection of the revenue, and keeps them open for the inspection of the citizen, that his individual action may be guided thereby, and will uphold the action of either when based thereon in good faith without better information.”

It is insisted by appellant that the tax proceeding instituted by the collector for the collection of the taxes of 1887 and 1888 should have been brought against Weber and Jones, the purchasers at the sale under the judgment of 1887; in other words, that Weber and Jones were the owners of the property and therefore a judgment against David W. 'McElroy and a sale in pursuance of such judgment was inoperative to convey any title to the real estate in controversy. We are unable to give our assent to this insistence. It is the settled law of this State and has been uniformly held by'this court that a purchaser at an execution sale acquires no title to real estate until the deed for it is executed by the proper officer. [Land & Lumber Co. v. Franks, 156 Mo. l. c. 689; Boyd v. Ellis, 107 Mo. 894, and eases cited.] So far as the record in this case discloses, at the time of the institution of the suit by the collector against David W. McElroy to enforce the lien of the State for the taxes of 1887 and 1888, the land was assessed to David W. McElroy, and he was the record owner, and there was an entire absence of any indication in the land records of the county, either at the time of the commencement of the suit, or at the time the judgment was rendered and the sale made in pursuance of such judgment, or at the time of the execution of the deed to the grantee through whom the plaintiff claims, that Weber and Jones, or any one else except McElroy, had any title to the property in controversy, or made any claim to ownership of such property. It follows, therefore, if the cases herein cited truly state the law, that a purchaser at an execution sale acquires no title to real estate sold until the deed for it is executed by the proper officer, then we are unable to conceive how Weber and Jones at the commencement of this suit^ with no deed upon record and in fact with no deed even executed and not in the actual possession of the land in controversy, could have been treated by the collector as the true owners of this property, and against whom his suit would have to be brought. It is insisted by appellants that the collector commenced this proceeding with notice of the prior tax judgment enforcing the lien of the State for the taxes of former years and that the plaintiff’s grantor purchasing at the sale under the judgment of April 6,1890, also made such purchase with notice of such prior judgment; therefore, even though no deed was executed to Weber and Jones until long after the institution of the suit and the rendition of judgment, and no deed recorded to them until November 16, 1891, such sale was inoperative to pass any title to plaintiff’s grantor to the land in controversy. In support of this contention our attention is directed to that line of cases which very properly and correctly hold that where a deed is executed by an officer under an execution sale, so far as the defendant in the execution and his privies are concerned and strangers purchasing with notice, it relates back to the date of the sale and vests the title in the execution purchaser from that time. It may be conceded for the purposes of this case that the collector as well as the purchaser had notice of such prior judgment and that the land in controversy had been sold in pursuance of such judgment and that Weber and Jones were the purchasers at such sale, still nodeéd having been executed to them under such purchase, in contemplation of the law applicable to tax proceedings, they would not be such owners of 'the property as would authorize the collector to make them parties to a proceeding tO' enforce a subsequent lien of the State for the taxes of 1887 and 1888. Take this case, and the record discloses that the taxes of 1887 and 1888 was a lien upon the land in. controversy. The collector of the revenue was. required to enforce such lien. This leads us to the inquiry as against whom must he institute the proceeding in order to obtain jurisdiction of the subject-matter? As heretofore pointed out, the suit for the enforcement of the lien must be brought against the owner, and while the collector may have known that, at a sale enforcing a prior lien for the taxes against this land, Weber and Jones purchased the same, he also knew that they had received no deed in pursuance of such purchase, and, as has been uniformly held by this court, they had acquired no title to said land at the commencement of the suit to recover the taxes of 1887 and 1888; hence the collector could not maintain the proceeding against them, and, we repeat, they were neither proper nor necessary parties, and it certainly will not be contended that, because the collector knew that they had made a purchase at a prior sale, it was incumbent upon him to see that the title was perfected in them so as to enable him to bring the suit. He was not required to take any such steps in order to have the title vested in Weber and Jones. There was an existing lien on this land for the taxes of 1887 and 1888; the collector had the right to enforce such lien, and, having no notice that any one else had title to such property, and in fact no one else having acquired by proper conveyances a title to the same, he properly instituted the suit against the record owner.

With the well-recognized rule that when the officer executes his deed in pursuance of a sale, so far as the defendant in the execution and his privies are concerned, and strangers purchasing with notice, the deed relates back to the date of the sale, and vests the title in the execution purchaser from that time, we are entirely satisfied; but as applicable to this case, in order to entitle the defendants to invoke the doctrine of relation it was essential at least that they have an instrument upon which the doctrine of relation could operate conveying the title to the property at the commencement of the suit, as well as at the time of the rendition of the judgment and sale of the property thereunder. It was the duty of the collector to enforce the lien for the taxes of 1887 and 1888 against this property, and he could not, under the disclosures of the record in this cause, maintain the suit against Weber and Jones, for it is manifest that at that time they had acquired no title to the property in controversy, for the reason that no deed had been executed to them in pursuance of their purchase. If Weber and Jones were claiming to be the owners of this property presumptively they knew that the taxes of 1887 and 1888 had not been paid and constituted a lien upon such property, and we fully concur in the views as expressed by Macfaelane, J., in the case of Hilton v. Smith, that “persons who have neglected to make known their ownership, by record, or otherwise, will be presumed to have notice of the pendency of the suit and will be bound by the judgment therein. The suit proceeds against the property, and the collector is not required to add and bring in new parties as they make their interests known. One holding an unrecorded instrument affecting the title to the land should not be allowed to defeat the objects of the law and obstruct the collection of the revenue by filing it for record before judgment or sale. This principle has been applied to condemnation proceedings. [Kane v. Railroad, 112 Mo. 38.]'”

Upon the propositions involved in this case our attention is directed to the cases of Boyd v. Ellis, 107 Mo. 394, and Fleckenstein v. Baxter, 114 Mo. 493, and it is earnestly insisted by counsel for appellants that the rules of law announced in those cases are decisive of the case at bar. We are unable to agree with counsel for appellants as to the application of the propositions decided in those cases to the question disclosed by the record in the case at bar. This insistence necessitates a brief review of those cases. In Boyd v. Ellis, the collector brought two suits to enforce the State’s lien for taxes and in 1879' judgment was rendered in such suits and the sale enforcing* the lien of the State in such suits was made in 1880, but the deed was not executed to the purchaser or the assignee of the purchaser until November 16, 1885. The plaintiff in that action, subsequent to the rendition of the tax judg;ments and the sale made in pursuance of them, obtained a deed from the owner of the property on August 15, 1885, and commenced his suit in ejectment against the defendant, who was in possession of the land under the tax judgment, on the 18th of August, 1885. In that'case it was held, and properly so, that the sheriff’s deed was entitled to priority and conveyed the title to the premises. Black, J., in speaking for the court upon the disclosures of the record, thus stated the law: The title did not pass to the purchaser at the tax sale, until the execution of the deed to him as his assignee. But the law is well settled that a sheriff’s deed relates back to the sale as against the defendant in the execution, those in privity with him, and strangers with notice. [Porter v. Mariner, 50 Mo. 364; Leach v. Koenig, 55 Mo. 451; Ford v. French, 72 Mo. 250; Lewis v. Curry, 74 Mo. 49.] The sheriff’s deed, therefore, has the priority, not only because it relates back to the sale, but also because the tax lien was paramount to all other liens and claims. Nor is it any objection that the deed was made after the commencement of the suit. [Porter v. Mariner, supra.]

In Fleckenstein v. Baxter, Judge Black again thus stated the proposition under consideration and the la'W' applicable to it. He said: “The question made on this record is, whether the plaintiff purchased with notice of the sheriff’s deed. The taxes were assessed against the land while Charles Schloegel was the owner, and he continued to be the owner when the tax suit was commenced and the special judgment obtained against him. The sheriff’s deed based on that judgment bears date March 22, 1882, but was not recorded until two months after the plaintiff received his deed from Schloegel. The unpaid taxes constituted a lien on the land, and this lien was prior and paramount to all other liens. It was created and disclosed by public records, and the plaintiff purchased with notice of it and of the judgment enforcing it. This tax lien was not merged into a judgment lien so as to expire in three years as in case of a general judgment. [Boyd v. Ellis, 107 Mo. 398.] The plaintiff purchased with notice of the tax lien and the special judgment enforcing it, and he was bound to go further and see whether that judgment had been satisfied, and this inquiry would have disclosed the execution sale. He, therefore, took with notice of that sale and is bound thereby. As between him and those holding under the sheriff’s deed, he had notice of the sheriff’s sale. Had the sheriff failed to execute the deed until afte'r the plaintiff purchased, still the deed when executed would relate back at least to the date of the judgment, and thus cut out plaintiff. [Boyd v. Ellis, supra, and cases cited.] ”

It is sufficient to say of those cases that they properly and. clearly apply the law to the questions disclosed by the record and which were then before the court for consideration. The distinguishing features in the record in those cases from those in the record in the case at bar now before us, clearly mark the distinction between them, and satisfactorily demonstrate that those cases which are chiefly relied upon by appellants are by no means applicable to or decisive of the question presented in the case at bar. It must not be overlooked that in the cases urged upon our attention the parties seeking to recover the property predicated their claim upon a voluntary deed to the land from the owners subsequent to the tax judgment against said land and a sale in pursuance of such judgment. It was correctly held that such deeds were accepted with notice of the prior and paramount lien of the State and with everything that was done in connection with the enforcement of such lien, but in the case at bar we are dealing with an entirely different state of the record. The plaintiff in this case is not claiming through any voluntary deed by the owner of the land in controversy subsequent to the rendition of a tax judgment and the enforcement of the State’s lien for taxes due upon the land, but is claiming under a valid judgment and sale enforcing a subsequent lien of the State which was permitted to accrue by those interested in the property; and, it makes no difference, as applicable to the record in this case, whether the purchaser at the sale enforcing the lien of the State for the taxes of 1887 and 1888 had notice of the prior judgment and sale in pursuance thereof or not; so long as such prior judgment and sale had not resulted in vesting the title to the property in some one else, the suit for the enforcement of the subsequent lien was properly instituted against the record owner, and, in our opinion, the rights of the purchaser at such sale under such subsequent judgment should be protected. As was expressly ruled in Hilton v. Smith, if Weber and Jones had any claim to this property by reason of their purchase at a prior tax sale and neglected to perfect their rights to such property under such sale and make known their .claim, by record or otherwise, they should he presumed to have notice of the pendency of the suit to enforce by the collector a subsequent lien permitted to accrue, and should be bound by the judgment in that proceeding.

The lien of the State for the taxes of 1887 and 1888 was permitted to accrue, and unrecorded claims of the nature and character of those held by Weber and Jones existing at the time of the institution of the suit for the enforcement of such lien, as well as at the time of the rendition of judgment and sale of the property in controversy, should not be permitted to defeat the objects of the law and delay or obstruct the collection of the revenue by undertaking to infuse into such claim the life of a title to the land and filing it of record long subsequent to the institution of a suit to enforce the State’s lien and a judgment and sale in pursuance thereof.

The conclusions reached in this case, as herein indicated, are in no way in conflict, with the cases of Wood v. Smith, 193 Mo. 484; Blevins v. Smith, 104 Mo. 583, nor with any other cases decided by this court in which the principles applicable to the propositions involved in this proceeding were discussed. In Wood v. Smith, supra, it was held that the tax judgment was not binding upon the defendant, and that while,the deed records of the recorder’s office disclosed that the defendant was the record owner, yet the other public records, the tax books, to which the officers, whose duty it was to enforce the lien of the State, had access, disclosed that the defendant against whom the tax proceeding was instituted, was not the true owner, therefore, the officers having notice of who was the true owner, it was their duty to make him a party to the proceeding, and the defendant in that case, who was the true owner, had the right to he heard and disclose all the facts connected with the transaction. To the same effect was Stuart v. Ramsey, 196 Mo. 404, where the subject of the conclusiveness of a judgment against the true owner who was not made a party to the tax proceeding, was thoroughly reviewed by Judge Gantt, and it was expressly ruled that under the facts disclosed in that case the collector knew that a third person owned the land under an unrecorded deed, and that the facts were sufficient to put the purchaser upon inquiry as to whether the record owner against whom the tax proceeding was brought had previously conveyed the property, and having notice as to who the true owner of the land was, it was the duty of the collector to institute the proceeding against him and that the purchaser at such sale against the record owner alone, under the facts disclosed in that case, acquired no title. That is not this case. The record discloses that while there was a judgment and sale undertaking to enforce the lien of the State and at such sale Weber and Jones were the purchasers of the land in controversy, it is also disclosed that no deed was executed to them conveying the land in pursuance to such purchase until long subsequent to the commencement of the suit, as well as the rendition, of the judgment and the sale in pursuance of such judgment, in the tax proceeding wherein . plaintiff’s grantor became the purchaser ; hence, it logically follows, in harmony with the ruling by this court, as herein indicated, that at the commencement of the tax proceeding for the taxes of 1887 and 1888, as well as at the time of the rendition of the judgment and sale in pursuance thereof, David W. McElroy had not at that time been divested of his legal title by a duly executed deed from the proper officer conveying the same in pursuance of the tax judgment of 1888; therefore it must be held that said McElroy was the only party against whom this suit conld be brought and that Weber and Jones at that time having no title to the property in controversy, were neither proper nor necessary parties; and, as ruled in Hilton v. Smith, it must be presumed that they had notice of the pendency of that proceeding and must be held bound by the judgment rendered therein.

The decree and judgment of the trial court was manifestly correct and for the right party and should be affirmed, and it is so ordered.

All concur.