author: RAGLAND, C. PER CURIAM:

text:
    ALLUVIAL REALTY COMPANY, Appellant, v. HIMMELBERGER-HARRISON LUMBER COMPANY.
    Division One,
    April 9, 1921.
    1. COUNTIES: Boundary Between New Madrid and Pemiscot: Government Survey. When the Legislature in 1851 made the junction of Portage Bay with Little River one of the calls in describing the boundary line between Pemiscot and New Madrid counties, it did not have in mind some point fixed by a Government survey, but merely the physical object, the junction of the two streams.
    2. ■ — ■-: -: Junction of Streams. As a physical object, constituting a natural monument, the junction of Portage Bay witn Little River, when the Legislature in 1851 fixed upon that junction as one of the calls in describing the boundaries between Pemiscot and New Madrid counties, was at the place where the waters of the bay, under normal conditions, flowed into those of the river and the bay lost its identity as a stream.
    3. -: -: --: Center of Section Ten. The Legislature, in 1868, in attempting to define the northern boundary of Pemiscot County fixed upon the “middle of Section Ten” as the western termination of the boundary, and by reversing the course and running due east from it, the location of another call, “the junction of Portage Bay with Little River,” as it existed at the time of the passage of the act, is likewise fixed, and the boundary line is the east-and-west line through the middle of Sections Nine and Ten.
    4. -- — : -: Evidence: Practical Interpretation of Statute. The “Government Tract Book of New Madrid County,” the “New Madrid County Plat Book” certified by the Register of Lands, and testimony relative to the assessments by New Madrid County of the lands in the disputed territory, were all competent evidence upon the issue whether the lands are situate in Pemiscot or New Madrid County. Collectively they tended to show the interpretation put upon the Boundary Act of 1868, defining the boundary between the two counties, by the United States Land Office and by the executive department of the State, and to show that there was a practical location of the boundary, conforming to such interpretation, acquiesced in and treated as correct by the public authorities and the counties themselves for many years.

      5. -: -: Quieting Title: Jurisdiction. The Circuit Court of Pemiscot County, in a suit to ascertain and determine title, having determined that the lands were in New Madrid County, had no jurisdiction to adjudge “that the plaintiff has no right, title, claim or interest in and to said lands.”
    Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge.
    Affirmed [in part); reversed (in part).

      John A. Hope and Ward & Reeves for appellant.
    (1) The court erred in dismissing plaintiff’s petition and adjudging the land in question to be in New Madrid County, (a) This being swamp and overflow land, it passed to the State from the United States Government by Act of Congress, September 28, 1850, and by subsequent act of the Legislature said lands were donated to the counties in which they lie. 9 U. S. Stat. at Large, p. 519; Laws 1852-3, p. 108; Laws 1857, p. 32; Laws 1868, p. 69; Sec. 7995, R. S. 1909; Russ v. Sims, 261 Mo. 46; Mosher v. Bacon, 229 Mo. 338. (2) The first grant of this land by the State to the county was February 23, 1853 (Laws 1852-3, p. 108), which was subsequent to the establishment and fixing of the boundary of Pemiscot County on February 9, 1851. So the title to to this land was never in New Madrid County. Neither State nor county can sell by patent or otherwise any land after having first granted same to another. Laws 1851, p. 190; Mosher v. Bacon, 229 Mo. 338; Keaton v. Hamilton, 264 Mo. 564. The right to a patent once vested as respects the Government is equivalent to a patent. Johnson v. Fluetsh, 176 Mo. 470; Mosher v. Bacon, 229 Mo. 350. (3) The statute fixing the boundary line of Pemiscot County begins at a northeast corner of the county in the middle of the Mississippi River and goes in a direction west to the point in controversy, and it uses this language: “ Thence along the middle of said Collins Lake or Portage Bay, to its junction with Little River; thence due west to the middle of Section Ten, in Township Twenty, North of Range Ten, east; thence due south to the southern boundary of the State, etc.” Sec. 3599, R. S. 1909. (4) The Legislature, in using the word middle (of Section 10) did not use it with the same meaning as the word center. (5) The court Avill take judicial notice that the land is in Pemiscot County. Keaton v. Hamilton, 26-1 Mo. 564; Woods ex rel. v. Henry, 55 Mo. 563; Parker v. Burston, 172 Mo. 87; 17 Am. & Eng. Ency. Lnw (2 Ed.), pp. 9, 12,13; 1 Greenleaf on Evidence (6 Ed.), p. 10. And Avhen the county boundary is in question it is the duty of the court to construe the language of the statute fixing the boundary line. Sec. 8057, R. S. 1909; State ex rel. v. Railway, 105 Mo. App. 207; Keeney v. McYoy, 208 Mo. 65. (5) It is a Avell-settled rule of construction that natural and permanent monuments control artificial marks, courses and distances; and that natural monuments, artificial marks, and distances or area are usually controlled in the aboA'e named order. The general rule is that calls for natural or permanent objects in an entry, survey or conveyance will control other conflicting calls. This rule has been applied with respect to such objects as streams or rivers or a shore of a lake, etc. HoAvever, an unmarked line is not a natural monument within the rule. The principle on Avhich calls for natural monuments are ordinarily given preference over other calls is that there is less likelihood of mistake in calls of this character. WhiteAvell v. Spiker, 238 Mo. 637; Whitehead v. Regan, 106 Mo. 235. Natural monuments and objects called for in deeds will control though they conflict with courses and distances; and Avhere a deed calls for a river as a boundary this call will prevail over artificial monuments, courses and distances. (kunpbell v. Clark, 8 Mo. 553; Myers v. City, 82 Mo. 367; Burnham v. Hitt, 143 Mo. 414; Peterson v. Beha, 161 Mo. 513; Jacob v. Mosely, 91 Mo. 457. “Natural monuments” are such natural or permanent objects as streams, rivers, ponds, shores, beaches and the like. 5 Cyc. 869; 9 C. J. 161; 3 Washburn, Real Property (6 Ed.), sec. 2332; Tiedeman on Real Property (2 Ed.), sec. 831; Goodson v. Fitzgerald, 40 Tex. C. App. 619. “ Artificial monuments ’• are landmarks and signs erected by the hand of man. 5 Cyc. 87; 9 O. J. 162:. ££A monument ” is some tangible landmark established to indicate a boundary and is a fixed visible object. 9 G. J. -160; Bouvier’s Law Dictionary; Koch v. Gordon, 231 Mo. 652. A subdivision line between two tracts of land Avhich Avas the center of a certain section (as middle of Section 10), AAdiich is invisible and ascertainable only by measurement, and Avhich is liable to differ in location according to the result of surveys, is not a monument. Guitar v. St. Glair, 238 Mo. 627; Koch v. Gordon, 231 Mo. 645; Dolphin v. Klann, 246 Mo. 487. The general rule is that the beginning point, Avhen established, is determined to be of controlling authority; and if the starting point is fixed, certain and notorious, and there is a conflict between it and other calls the latter must give way to the former. But Avhen succeeding calls are as readily ascertained and are as little liable to mistake, they are of equal dignity with thé first, and when they all conflict with the first and agree with each other, their united testimony must control. Hubbard v. Whitehead, 221 Mo. 683; Walsh v. Hill, 38 Cal. 431; 9 G. J. 164. (6) Original corners as established by the Government surveyors are conclusive on all persons. 9 O. J. 164; 5 Cyc. 950; Woods v. Johnson, 264 Mo. 295; C-limer v. Wallace, 28 Mo. 559; The Mayor v. Burns, 114 Mo. 430; Grandley v. Davis, 156 Mo. 429. It is Avell settled in this State that the field notes of the United States surveys of public lands made prior to their conveyance to the State, or to private persons, will control in ascertaining locations of corners, lines and locations. Lbr. Co. v. Ripley County, 270 Mo. 135; BradshaAV v. Edlan, 194 Mo. 640; Carter v. Hornback, 139 Mo. 243; Shelton v. Maupin, 1.6 Mo. 124.

      Oliver cG Oliver for respondents.
    (1) This is an action at law under the statute to determine title, and Avas tried before the court Avithout the intervention of a jury. No instructions were asked and none were given. The finding' of the trial court takes the place of a verdict by jury and as such is not subject to review on appeal. "Woods v. Johnson, 264 Mo.. 293; Smith v. Eoyse, 165 Mo. 657; Hatton v. St. Louis, 264 Mo. 646; Chilton v. Nickey, 261 Mo. 242: Zimmerman v. Ey. Co., 156 Mo. 565; Sutter v. Eaeder, 149 Mo. 307. (2) Under the issues, it was essential that appellant prove the title to the lands in dispute, having failed to do so it has no standing in this court. The appellant having averred it was the “absolute owner” must support that averment or it fails. Wheeler v. T.and Co., 193 Mo. 283; Stewart v. Land Co., 200 Mo. 288. (3) JSIo conveyance of the lands in suit was made by the State prior to the act of the General Assembly of 1868; and that act did not have the effect of passing title to Pemiscot County. Simpson v. Stoddard County, 173 Mo. 449; Carmen v. Johnson, 20 Mo. 108; Sturgeon v. Hampton, 88 Mo. 203. (4) Nor did the act of the General Assembly of 1869, in itself, vest the title of swamp lands in the counties in which said lands were situated. It required the issuance of a patent before title vested. Laws 1869; Hamilton v. C. B. & Q. Railroad, 124 111. 243. (5) The court did not commit reversible error in permitting the respondent to show: (a) That the lands in suit had been accepted by New Madrid County and had been assessed by the county officials of that county. The fact that these lands had been claimed by New Madrid County since 1875, when the patent was made to it by the Governor, was a fact the court might properly consider, in determining the conduct and action of the two counties with reference to the acceptance and location of the lands in suit. What weight the court attached to such testimony is another question. What weight the court actually gave to this evidence, if any, is not shown by the record, therefore no prejudice can be attributed to its admission, (b) Nor did the court commit reversible error in permitting the respondent to offer the “Plat Book” of New Madrid County. This book is a record which the law requires counties in this State to procure from the register of the United States land office. Sec. 11363, R. S. 1909. The statute makes the entries appearing’ on this “Plat Book” competent evidence. Secs. 6290 and 6289, R. S. 1909. (c) Nor did the court commit reversible error in permitting respondent to offer, the “Swamp Land Abstract” book of New Madrid County. This book seems to have been made for the convenience of the county court of New Madrid County in disposing of its swamp lands and was an ancient record in the office of that county, (d) Nor did the court permit any error in permitting the respondent to introduce the “Tract Book” of New Madrid County which shows the lands in suit are located in New Madrid County and shows that the line dividing New Madrid from Pemiscot County runs from the center of Section Ten, Township Twenty, Range Ten, through a tier of sections until it intersects the waters of Little River in Section Nine, Township Twenty, Range Twelve. Secs. 1 and 9, Laws 1868, pp. 68-9-70; Secs. 7995 and 8000, R. S. 1909. (e) Nor did the court commit reversible error in permitting the respondent to show where the (middle of this) channel or thread of Portage Bay water intersects, joins or flows into and with the water of Little River. This was competent as shown by the testimony of W. B. Rossiter. The intersection of the banks of Portage Bay with the east bank of Little River was not the same place where the waters of the two streams came together. The statute refers to a “junction” of waters; not land. Hubbard v. Whitehead, 221 Mo. 682. f) Nor did the trial court commit reversible error in permitting the surveyors, N. C. Frissell and F. M. Robbins to explain in detail how and what a surveyor would have to do in establishing, ascertaining and running the line that separates the two counties. Hubbard v. Whitehead, 221 Mo. 682. (6) The General Assembly in passing the Statute of 1868 fixing the boundary line, clearly intended that the line should be a straight one without fractionalizing any legal subdivision of any government survey. This intention of the lawmakers should prevail; and the court in ascertaining that intention will take into consideration the facts arid circumstances existing and known to the lawmakers at that time. Laws 1868, p. 19; Sec. 3599, R. S. 1909; Hubbard v Whitehead, 221 Mo. 682; Cooley v. Warren, 53 Mo. 168. (7) This court had conclusively and definitely settled the location of the northwest comer of Pemiscot County to be the center (middle) of Section Ten, Township Twenty, Range Ten. You have declared this a fix monument. It was the precise point or definite monument that the Legislature intended for the corner between the counties of Pemiscot and Dunklin and to be the controlling monument in fixing the north boundary of Pemiscot County, or the south boundary of New Madrid County. That question is, therefore, a closed one. Pemiscot County v. Wisconsin Lumber Co., 240 Mo. 377.
   RAGLAND, C.

Statutory action to determine title to real estate instituted in the Circuit Court of Pemiscot County, October 19, 1917. The petition alleges in substance that the plaintiff is the owner in fee simple of the south half of the north half of Section Eight, containing one hundred and sixty acres, and the south half of the north half of Section Nine, containing one hundred, fifty-five and 28/100 acres, all -in Township Twenty, north, of Range Eleven, east, in Pemiscot County, Missouri; and that the defendant claims some title, interest, or estate therein, adverse to plaintiff. The prayer is conventional.

The answer consists of a plea in abatement and one in bar. In the first it is averred that the lands in question are not in Pemiscot County, but that they are situated in New Madrid County, and on that ground it challenges the jurisdiction of the Circuit Court of Pemiscot County to determine. any question affecting their title. In the second, after a denial of the allegations of the petition as to the location of the lands and plaintiff’s title thereto, it is averred that the lands in controversy are situated in New Madrid County and that the defendant is the sole and absolute owner of them.

It was admitted that the title to the lands in controversy passed from the United States to the State of Missouri under the Act of Congress of September 28, 1850, commonly known as the Swamp Land Grant. The acts of the Legislature donating the lands and prescribing the boundaries of Pemiscot and other counties were read in evidence. Documentary evidence was introduced showing that on November 2, 1891, Pemiscot County issued to Louis Houck a patent to the lands in controversy: that on May 25, 1899, New Madrid County issued a like patent to John.H. Himmelberger; and that severally through mesne conveyances the plaintiff acquired whatever title passed under the Pemiscot County patent, and the defendant whatever passed under that of New Madrid County.

Over the objections of plaintiff, defendant put in evidence what was designated as the ‘ ‘ Government Tract Book of New Madrid County” and the New Madrid County Plat Book. The “ Tract Book” purported to contain a list of all lands granted to the State of Missouri by the United States that were situated in New Madrid County and was duly certified August 24, 1869, by the Register of the United States Land Office at Iron-ton, Missouri. The Plat Book was certified May 19, 1875, by the Register of Lands for the State of Missouri. Both included the lands in controversy as being located in New Madrid County. The Plat Book portrayed the boundary line between New Madrid County and Pemiscot as following Portage Bay into Little River, running thence with the course of the stream southwest to the quarter section line between the north and south halves of Section Nine, Township Twenty, north, Range Twelve, east, and thence due west with the quarter section lines of the intervening sections to the center of Section Ten, Township Twenty, north, Range Ten, east. Defendant also read in evidence a patent from the State of Missouri to New Madrid County, purporting to convey to that county, among others, the lands in question.

The act organizing Pemiscot County and prescribing its boundaries was passed February 9, 1851. [Laws 1851, p. 390.] The territory of the new county was therein described as follows: “All that portion of New Madrid County lying south of line beginning in the middle of the main channel of the Mississippi River, immediately opposite Major’s mill race, and running thence along said mill race to the Cushion Lake byou; and thence along said Cushion Lake byou, to the Cushion Lake; thence along the middle of said Cushion Lake to a point opposite to the head of Collins Lake, or Portage Bay; thence along the middle of Collins Lake or Portage Bay to its junction with Little River; thence clue west to the eastern boundary of Dunklin County.” In 1868 an act, amendatory of the general statutes then in force defining county boundaries, was passed. This act redefined and fixed the boundaries of twenty odd counties — Dunklin, Pemiscot and New Madrid, among others. It describes the line between New Madrid and Pemiscot in the same language as the Act of 1851, except as to the last call, which was made to read: “thence due west to the middle of Section Ten (10), in Township Twenty (20), north, of Range Ten (10), east.” [Laws 1868, pp. 20 and 21.] The only boundary of Pemiscot County affected by the amendment was that between it and Dunklin County on the west. Theretofore its west boundary (the east boundary of Dunklin County) had been a line extending due south from the intersection of the west edge of the Tattle River Swamp with parallel of latitude 36 degrees and 30 minutes north; it now became a line beginning at the middle of Section Ten, Township Twenty, north, of Range Ten, east, and running thence due south to the southern boundary of the State,.

The boundaries of Pemiscot County as defined by the Act of 1868 have never been changed. [Sec. 9382, R. S. 1919.] The line in dispute begins at the junction of Portage Bay with Little River and runs “thence due west to the middle of Section Ten,” etc. The two streams unite in Section Nine in Township Twenty, north, of Range Twelve, east. A certified copy of the plat of said Township Twenty, made June 1, 1852, under the direction of the Surveyor General of the United States from the field notes of the survey thereof, was offered in evidence by the plaintiff. The Surveyor General’s certificate recites that the west boundary and the north boundary east of Little River and pg.rt of the subdivision lines were surveyed in 1848, and that the survey of the township was completed in January and February, 1851. The following is a reproduction of so much of the plat as shows the boundaries of Section Nine, the meanders of Little River and Portage Bay therein and the subdivision lines of the section:

From certified copies of plats obtained from the General Land Office, introduced in evidence by the plaintiff, it appears that the surveys of Township Twenty, •north, of Range Eleven, east, and Township Twenty, north, of Range Ten, east, were completed in 1858 and in 1860, repectively; that is, the boundaries had been run and the townships seetionized.

The plat of Section Nine, Township Twenty, Range Twelve, east, herein before reproduced, discloses that the subdivision line between the north and south halves of the north half of the section passes between the points of intersection respectively of the north and south meander lines of Portage Bay with the east meander line of Little River. It further shows that the subdivision line just mentioned is a short distance south of the intersection of the middle line of Portage Bay with the east meander line of Little River.

The meander lines indicate that Little River at the place where Portage Bay flows into it is three-eighths of a mile wide. According to the oral testimony they correctly represent the river in that respect as it was at the time of the survey and as it continued to be unt as late as 1898 — before the work of reclamation was actually begun in that territory. The west side of the river at that point, however, was nothing more than a brush covered swamp; the open water and current at normal stages were, generally speaking, on the east side. There was a high, well-defined bank along the lowland on the east side, and through an opening in this bank Portage Bay flowed in its course to join the river. The point where the waters of the two streams actually came together is left uncertain. Otto Kochtitzky, a surveyor of many years experience- and a witness for plaintiff, testified that he last saw Little River where Portage Bay empties into it in 1898, and that at that time the river opposite the opening in the high bank just referred to was about 400 feet wide; he did not say, however, how near its waters approached the high bank at that point. Being asked where the thread of the stream was along there, he said: “As I remember it, the deeper part of the channel of Little River follows the east side down to pretty near the mouth of the bay, maybe three or four hundred feet north, then sweeps across to the open water on the west side for a distance. That is not "a continuous and well defined channel; the deep places show themselves occasionally along the general channel of the river, and at very low water the deep places will almost show to be perfectly flat, almost no channel at all.” He also testified that the course of Portage Bay where it discharged - its waters into Little River was northwest; that it formed almost a perfect right angle with the river. In explanation of that statement he sam that he did -not regard the place where the waters of the two streams came together as their junction, but the .place where the outer or high water banks joined. Plaintiff called as witnesses two other- surveyors who had had occasion some eighteen or twenty years before to inspect Little River where it was joined by Portage Bay. They testified merely that the junction of the two streams was correctly defined by the Government meander lines. W. B. Rossiter, County Surveyor of New Madrid County, a witness for defendant, made an examination of the channels of the river and the bay in the vicinity of their junction a few months before the trial, at that time the river had been drained — all the water withdrawn, and the bay was very low — just a few little puddles. He testified that the bay in its approach to the river comes upon in a northwest course and just before it gets to the river turns to the southwest; that by projecting a line equally distant between the meanders of the bay it would intersect a median line of the river at the quarter section line (east and west) of Section Nine.

Defendant introduced in evidence over the objections of the plaintiff: (1) A book that had been kept for many years in the office of the County Clerk of New Madrid County, designated as the “Swamp Land Abstract for New Madrid County, Missouri;” it was not identified by any official certification, nor was it shown by whom or under what authority it was made; it contained a list of the lands in controversy. (2) An order of the County Court of Pemiscot County, made May 25, 1903, reciting that the county lines between Pemiscot, New Madrid and Dunklin Counties were indefinite and had not been permanently located, and directing the county surveyor to proceed with the surveyors of the other counties named to establish the line. And (3) testimony tending to show that the lands within the disputed territory had for many years been assessed for taxes by New Madrid County.

The cause was tried to the court. No declarations of law were asked or given. The court found the issues for the defendant, and rendered a judgment wherein it was adjudged that the lands in controversy are situated in New Madrid County, and that plaintiff’s petition be dismissed. It was further adjudged that the plaintiff had no right, title or interest in and to said lands.

Prom the .judgment so' rendered, plaintiff in due course perfected its appeal to this court.

Appellant’s contentions may be epitomized to this effect: Plaintiff, by doeumeiitary evidence and by oral testimony that was uncontradicted by any substantial competent evidence, made a case establishing its title; this court should, therefore, reverse the judgment nisi with directions to the court below to enter judgment for plaintiff.

As already indicated by the statement of facts, the disposition of this controversy, both as to the merits and with respect to the jurisdiction of the Circuit Court of Pemiscot County to hear and determine it, depends solely upon a determination of the location of the boundary line between Pemiscot and New Madrid Counties. That is the sole question at issue. If the land is in Pemiscot, it belongs to the appellant; if in New Madrid, to the respondent.

I. According to appellant a line drawn from the junction of Portage Bay with Little River (Section Nine, Township Twenty, north, Range Twelve, east) would lie just a quarter of a mile south of the northern boundary of the tier of sections between the termini; that is, it would be along the subdivision lines bisecting the north halves of those sections. According to respondent such line would be a quarter of a mile still further south coincident with the quarter section lines extending east and west through the centers of the sections. It is apparent, therefore, that the locations of both termini are in question.

Appellant takes the position that the location of the junction of Portage Bay with Little River is fixed and determined by the United States Survey. This, because the monuments or corners as established by the Government are, as a matter of law, conclusive; and because the Legislature is presumed to have defined the boundary with this survey in mind. Based on the premise that the begining point is definitely located by the Government survey, appellant states, or rather assumes, that the boundary line runs thence west on the quarter section lines bisecting the north halves of the sections. But if this premise were sound, still the boundary would not be coincident with the subdivision lines just referred to. If the point of beginning is to be determined from the plat, it would be where the middle line of Portage Bay intersects the east meander line of Little River and, as already indicated, that point is some distance north of the quarter quarter section line. If, therefore, appellant’s hypothesis be correct, the Legislature intended to so run the boundary as to put indefinite fractional parts of the north halves of the north halves of the sections through which it runs into each county.

Recurring to the propositions advanced by appellant as grounds for its contention that the junction of Portage Bay with Little River is fixed by the Government survey, it is sufficient to say, as to the first, that even if the rule of law that monuments and corners established by the United States are conclusively deemed to be correct were applicable, still it would avail appellant nothing in this case. The Government surveyor did not attempt to locate or mark the junction of the two streams, he merely surveyed the meanders of their outer or high-water banks. As to the second, it affirmatively appears that the meanders of these streams were surveyed in January and February, 1851. It is extremely improbable that the Legislature had any knowledge of the survey, even if completed, when it passed the first act defining the boundary between Pemiscot and New Madrid Counties on February 9,1851. Besides, there is no reference to a survey, either directly or impliedly, anywhere in the act. It describes the boundary line as beginning in the middle of the channel of the Mississippi River, extending thence westwardly along certain water courses to the junction of Portage Bay with Little River, and thence due west to the eastern boundary of Dunklin County. It is apparent, therefore, that the Legislature, when it made the junction of Portage Bay with Little River one of the calls in describing the boundary lines, did not have in mind some point fixed by a Government survey, but merely the physical object, the junction of the two streams.

As a physical object, constituting a natural monument, the junction of Portage Bay with Little River was • at the place where the waters of the bay, under normal conditions, flowed into those of the river and the bay lost its identity as a distinct stream. [Rowe v. Lumber Company, 133 N. C. 433, 440.] If the plat had been the only evidence offered relating to the place of the junction, it would, perhaps, have necessitated a finding that it was at the east meander line of Little River between the meander lines of Portage Bay. But there was other evidence and it tends to show the contrary. Plaintiff’s witness, Kochtitzky, testified that in 1875 and 1898 Little River at the place in question had no continuous well defined channel, that the deeper part of it followed the east side down to pretty near the mouth of the bay — three or four hundred feet north — then swept “across to the open water on the west side.” It is true that he said that the junction of the streams was at the opening in the high bank on the east side of the river but it is plain that he was giving his opinion as an expert and not testifying to the physical conditions as they existed. When defendant’s witness, Rossiter, made an examination a few months before the trial, the waters of the two streams had practically disappeared. Little River had been drained and Portage Bay had dried np. The high banks of both and the channel of the bay apparently were unchanged. He testified that the bay just before reaching the river turned southwest; and that if the thread of its channel were projected in the direction of its southwest course, it would intersect the median line of Little River, as fixed by the survey of its meander lines, on the quarter section line (east and west) of Section Nine.

II. Owing to the transformations and partial obliterations of the water courses in that territory, effected by works of reclamation, it would no doubt be difficult, if not impossible, to determine, independently of the subsequent calls in the statutory descrip^on 0f -j^g boundary line, the precise point where the waters of Portage Bay joined those of Little River in 1851 or in 1868. The next call is “the middle of Section Ten, in Township Twenty, north, of Range Ten, east,” and the point called for is described as “due west of the junction of Portage Bay with Little River.” Appellant insists that this call should be construed as though it read: “the middle line of Section Ten.” This, on its theory that the junction of Portage Bay is at a point between the northern boundary and the center of Section Nine from which a line could not be projected due west to the center of Section Ten, but from which it could be so projected to some point on the middle line (north and south) of that section. But appellant having failed to establish its theory as to the place of the junction of the two streams, the reason, or necessity, for a construction that would add the word “line” after the word “middle” fails with it. There does not seem to be room for serious controversy as to what the Legislature meant by the words, “middle of Section Ten.” In Pemiscot County v. Lumber Co, 240 Mo. 377, involving an interpretation of the same language, but as descriptive of the boundary between Pemiscot and Dunklin Counties, we held that “middle,” as used in the Boundary Act with reference to Section Ten, was synonymous with “center.” In connection with what was said in that case, we might add that the Legislature in all boundary acts, including that of 1868, in establishing county boundaries, almost invaluably followed the plan of making such boundaries conform to the lines of natural barriers, or the lines or regular subdivision lines of Grovernment surveys. When the Act of 1851 was passed cutting Pemiscot off of New Madrid County, the surveys of the boundaries of the townships through which the division line between the two counties passed was just being completed. The townships were not then sectionized. But when the Act of 1868 was passed the section and quarter section corners had been established, and we find the Legislature redefining the part of the boundary extended duo west from the junction of Portage Bay with Little River by making it terminate at the middle of Section Ten instead of at the eastern boundary of Dunklin County, which prior to the passage of the act was a line extending south from the west edge of Little River swamp. And our holding in Pemiscot County v. Lumber Co., supra, was, in substance, that the legislative intent, as expressed by the act, was that the western boundary of Pemiscot County should be on the quarter section lines (north and south) of Section Ten rather than on a line equidistant between the east and west boundaries of that section. So with reference to the northern boundary, wre think it more reasonable to suppose that the Legislature, in splitting a row of sections eleven miles long with a county boundary, intended that such boundary should be coincident with the quarter section lines rather than with one that would, for no apparent reason, put indefinite fractional parts of the subdivisions through which it passed into each county.

Middle ofSection 10. III. If the center of Section Ten is the termination of the disputed boundary, and we so hold, then by reversing the course and running due east from it, the location of the junction of Portage Bay with Little River, as it existed at the time of the passage of the boundary acts, can be ascertained and all difficulty with respect to the boundary thereby obviated. [Ayers v. Watson, 137 U. S. 584, 604.]

IY. “The Tract Book,” the Plat Book, the patent from the State to New Madrid County, the “Swamp Land Abstract for New Madrid County” and the testimony relative to the assessments by New Madrid County of the lands in the disputed territory, were all properly received in evidence. They were competent because collectively they tend to show the interpretation put on the Boundary Act of 1868 by the United States Land Office and by the executive departments of the State. And further, that there was a practical location of the boundary, conforming to such interpretation, which had been acquiesced in and treated as correct by the public authorities and the counties themselves for many years. Such practical location of a public boundary should not be disturbed unless it be clearly and unmistakably shown to be erroneous. On that ground alone the trial court’s finding, on the facts in proof, would be justified. [Union County v. Essex County, 43 N. J. L. 391; Hecker v. Sterling, 36 Pa. St. 423.]

V. The finding, however, that the lands in controversy are situated in New Madrid County disclosed the narrow limits of the court’s further jurisdiction. The judgment is reversed in so far as it attempts to adjudge “that the plaintiff has no right, title, claim or interest in and to said lands;” in all other respects it is affirmed.

Brown and Small, CC., concur.

PER CURIAM:

The foregoing opinion of Rag-land, C., is adopted as the opinion of the court.

All of the judges concur, except Elder, J., not sitting.


source: Caselaw Access Project

author: JAMES T. BLAIR, J.

license: Public Domain

text:
    SAMUEL JAMES BOPST v. EUGENE F. WILLIAMS, BESSIE B. WILLIAMS et al., Appellants.
    Division. One,
    April 9, 1921.
    1. JURISDICTION: Appointment of Guardian: Collateral Attack. An allegation that plaintiff minor and his mother were not residents of a- certain county in Oklahoma, but of an adjoining county, and that therefore the county court of the particular county had no jurisdiction to appoint a guardian for him, is a collateral attack, and cannot succeed, when made in a suit in this State to annul the guardian’s sale of the minor’s lands.
    2. GUARDIAN: Married Woman: Competent to Sell Real Estate. A married woman, competent under the laws of the foreign state of her residence to be guardian of a minor child' residing there, may he permitted by the probate court of this State to sell the minor’s lands. The statute (Sec. 411, R. S. 1919) do<es not require*the foreign- guardian to possess the qualifichtions required of a resident guardian, but only requires that the non-resident minor shall have “a guardian in the state or territory in which he resides.”
    3. GUARDIAN’S BOND: Signed by Attorney: Civil Action. The statute of Oklahoma prohibiting licensed attorneys from signing bonds as surety “in any civil or criminal action” has no application to a guardian’s bond filed in the probate court of this State. It was not given in a “civil action.”
    4. SALE OF NON-RESIDENT MINOR’S REAL ESTATE: For Reinvestment. Section 411, Revised Statutes 1919 (Sec. 49, R. S. 1855), says that “when a non-resident minor, owning real estate in this State has a guardian in the state or territory in which he resides, the probate court in the proper county may authorize his guardian to sell such real estate and receive the proceeds thereof;” and that and the preceding sections do not confine the sale to the sole purpose of supporting and educating the minor, nor is the power to sell limited to a sale for any stated purpose; nor is a sale by the foreign guardian invalid because the petition and the order say a sale and reinvestment in the State of the guardian’s and minor’s residence would be to the best interest of the minor, for those things are not required by the statute to be stated in either.
    5. -: Contingent Remainder. A contingent remainder in lands is a vendible interest by a person sui juris or under execution, despite the fact that the person or persons who will ultimately take cannot be determined until the death of the life tenant; and if the apparent remainderman is a minor, his contingent interest can be sold by his guardian when properly authorized by the probate court.
    6. -: Payment of Purchase Price: Dissipation. The failure of the guardian to account in the proper court for the purchase price of the minor’s land, or the dissipation or embezzlement, of it by the guardian, does not concern the grantee if the sale was otherwise good; and a recital in the probate record, repeated in the deed, of .the receipt of the purchase price in cash cannot be disproved to defeat the title of an innocent purchaser, without notice and for value, from the purchaser at the salel
    7. -: Appraisal of Contingent Remainder. Where the life tenant’s interest was computed at a sum substantially less than its value when computed by the statutory tables, and the minor’s contingent interest was appraised at a sum in excess of the value of an indefeasable and vested remainder, the appraisal furnishes no basis for an attack upon the sale by the guardian of the minor’s contingent interest.
    8.' -: Sale to Guardian. Under the statute, and in the absence of a statute, a purchase by the guardian of the minor’s real estate, directly or indirectly, even though approved by the probate court, and even though the sale is at a fair price, is ground, in itself, upon which the interested party may avoid the sale; and whether the deed be held void on its face, or only voidable, is immaterial in a suit in equity in which all the facts showing plaintiff’s right to avoid the sale are set up in the petition.
    9. -: Sale to Guardian’s Husband. A sale of the minor’s land by the guardian to her husband is voidable in a suit by the minor to set it aside, under the statute and at common law, even though it was at the appraised value and confirmed by the court. And although she had a life estate which would preclude dower vesting in her, yet whatever interest her husband took by her guardian’s deed she would have been entitled to share by election under our statutes had she survived him; and on the ground of prospective interest, and on the additional ground which arises out of the nature of the marriage relation, she should be considered a purchaser “indirectly.”
    10.-: -: Innocent Purchaser. The relation between the guardian and vendee may be shown by the records through which defendant derains title; and where the decree in partition recites that the guardian and W. E. Shenk are “husband and wife” and says that she has a life estate and her minor child a remainder in the land set off to them, and she as guardian of the minor sells the minor’s interest to “William E. Shenk” and Shenk’s deed to defendant contains a recital of the relationship of William E. Shenk and his wife (the said guardian), the defendant purchased with notice that the grantee in the guardian’s deed was her husband.
    11. -: Allowance for Improvements. Where the trial court held that the guardian’s deed conveying the land should be set aside, and the plaintiff did not file a motion for a new trial nor appeal, he cannot he heard to complain in the appellate court of the amount allowed to defendant for improvements.
    Appeal from Atchison Circuit Court. — Eon. John M. Dawson, Judge.
    Affirmed.

      Ij. D. Ramsay and E. B. Williams for appellants.
    (1) The court erred in finding that the purchaser did not pay for the land at guardian’s sale. The guardian’s deed recited payment of the purchase money. Our statute makes such deed prima-facie evidence of the recitals therein contained. Kerne y v. Vaughan, 50 Mo. 286; Sec. 435, R. S. 1909; Sec. 11927, R. S. 1909; Exend in e v. Morris, 8 Mo. App. 383. There is no evidence or circumstance that contradicts the prima-facie case above mentioned. (2) Our statute is: “nor shall the guardian or curator become the purchaser,.either directly or indirectly, of any of the property of his ward sold.” In Burton v. Compton, 150 Pac. 1080, the Oklahoma court held guardian’s deed made to his wife absolutely, void, on the ground that he would, at her death, inherit one-half of her property and, therefore he was interested in the sale. The court cited the Kansas case of Frazier v. Jenkins, 57 L. R. A. 575. This case in Kansas also held such a deed absolutely void, and both cases decided that because the deed was void rather than merely voidable, it could be attacked in a collateral proceeding. Both the Oklahoma case and the Kansas case above cited, cite as authority for the decision: Tyler v. Sanborn, 128 111. 136, and Davore v. Fanning, 2 Johns. Ch. 252. In both these cases cited, the deeds under similar circumstances were held to be voidable only and not absolutely void, and in the Fanning ease the purchase' money was ordered refunded as a condition precedent to setting’ the deed aside. Our case must be tried by the law of Missouri. Whatever be the law of Kansas and in Oklahoma, in this State, the order approving the sale by the probate court is a final judgment of the probate - court, is in the category of res judicata, and cannot be reached by collateral attack. Covington v. Chamblin, 156 Mo. 587. It is well settled law of this State that final judgments of the probate court in matters within their jurisdiction, are as conclusive as those of courts of general jurisdiction. Camden v. Plain, 91 Mo. 117; Rowden v. Brown, 91 Mo. 429; Price v. Springfield R. E. Assn., 101 Mo. 107; Sherwood v. Baker, 105 ¡Mo. 472; Macey v. Stark, 116 Mo. 481; Rogers v. Johnson, 125 Mo. 202; Cox v. Boyce, 152 Mo. 576. As late as 1876, an administrator was permitted to buy at his own sale in Missouri. Grayson v. Weddle, 63 Mo. 539; Strauss v. Ranheim, '59 N. Y. Supp. 1054; Crawford v. Gray, 30 N. E. 885; Epperson v. Postal Tel. Co., 155 Mo. 346; Hoffman v. McCracken, 168 Mo. 343. (3) In the petition we are not charged with notice that the court in Oklahoma had no authority to appoint, or that the law of that state forbade an attorney signing the bond, or that an attorney did sign the bond, nor that the purchaser was husband of the guardian, nor that he failed to pay the purchase money to the guardian, and were not charged with notice of consequent damages to plaintiff. Without such notice, this defendant is an innocent purchaser. Shelton v. Franklin, 224 Mo. 36i3. The evidence in the case cannot supply lack of necessary allegations in the petition. Shelton v. Horrell, 232 Mo. 358, 371; Dorrance v. Dorrance, 242 Mo. 668. (4) This very matter was presented to the probate court by plaintiff’s mother, plaintiff’s guardian, plaintiff’s representative, and the probate court considered and passed on it. Donnell v. Wright, 147 Mo. 647. (5) To vitiate a judgmerit because fraudulent, tbe fraud must be actual as contradistinguished from a judgment obtained on false evidence, or a forged instrument on tbe trial. Nichols v. Stevens, 123 Mo. 116; Dorman v. Hall, 124 Mo. App. 9; Leiber v. Leiber, 239 Mo. 34; McDonald v. McDaniel, 242 'Mo. 176; Cross v. Gould, 131 Mo. App.. 602; Hamilton v. McLean, 169 Mo. .70; Pelz v. Bollinger, 180 Mo. 258; Covington v. Chamblin, 156 Mr. '587. (6) “To allow the heirs or anyone else, in a collateral proceeding, to question tbe correctness of tbe judgment of tbe court, would so imperil tbe titles conveyed at administrators’ sales of lands tbat no prudent man would bid their value. ’ ’ Courts do not favor it because against public policy and tbe weight of authority. Carr v. Spanagel, 4 Mo. App. 284; Pearson v. Murray, 230 Mo. 167; McClanaban v. West, 100- Mo. 324; Jopling v. Walton, 138 Mo. 485. (7) Tbe Probate Court of Atchison County bad general, original and exclusive jurisdiction of tbe parties and the subject-matter. Tbe guardian made application to sell, under Section 441, and introduced her evidence as required by tbat section, tbat tbe court might examine it and judicially determine therefrom whether to exercise his jurisdiction. It passed on tbat very question. It is res judicata, not subject to a collateral attack. Johnson v. Beazley, 65 Mo. 250; Sims v. Gray, 66 Mo. 616; Scott v. Crews, 72 Mo. 261; Camden v. Plain, 91 Mo. 129; Rowden v. Brown, 91 Mo. 429; Brawford v. Wolfe, 103 Mo. 395; Williams v. Mitchell, 112 Mo. 308; Rogers v. Johnson, 125 Mo. 213; McKinzie v. Donnell, 151 Mo. 450; Cox v. Boyce, 152 Mo. 582; Desloge v. Tucker, 196 Mo. 601; In re Estate of Jarboe v. Jarboe, 227 Mo. 99; Pearson v. Murray, 230 Mo. 167; Dorrance v. Dorrance, 242 Mo. 662. (8) It is urged below by plaintiff tbat guardian sold ward’s land to her husband, and for tbat reason tbe sale was void. Tbe authorities relied on by plaintiff to sustain tbat contention, held tbat a guardian may sell tbe ward’s land to husband or wife of guardian, provided the guardian procures an order from the court authorizing such sale, prior to selling. The courts of this State have held time and again that an administrator is regarded as the officer or agent of the court in making the sale, and that sales of real estate under order of the probate court are judicial sales, and the confirmation of such sales by the probate court is the crowning act and covers all prior irregularities, provided, of course, that the court had obtained jurisdiction of the subject-matter and over the parties. It follows that, if the court, with knowledge of the facts, may make such order prior to the sale, it can, when such facts are conveyed by the report of the sale made by guardian, the court’s agent, ratify the same by an approval of the sale. Blickensderffer v. Hanna, 231 Mo. 1Í0; Noland v. Barrett, 122 Mo. 188. So that if the court knew the husband purchased and approved the sale, it is good, and if he did not know it, and approved the sale, it is good.

      P. C. Simons and Hunt é Bailey for respondents.
    (1) The jurisdiction of probate courts is regulated by statute, and they are courts of limited jurisdiction; there is no statute authorizing them to exercise equitable jurisdiction. Jenkins v. Marrow, 131 Mo.. App. 288/ (a) They have no common law or equity powers. They are purely creatures of the statute, and where there is no statute giving them power to act and they do not act within their implied powers, such act is without jurisdiction and got am non judice. They possess only such powers as are conferred on them by statute. St. Louis v. Ilullsat, 175 Mo. 79 ; Ford v. Talmage, 36 Mo. App. 65; Bradley v. Woener, 46 Mo. App. 371; Nicholas v. Rayburn, 55 Mo. App. 1. (b) Inferior tribunals, not proceeding according to the course of common law, are confined to the authority given them by statute, and the grounds of their jurisdiction must affirmatively appear on the face of the proceedings. State v. Metzger, 26 Mo. 66 ; Sawyer v. Burris, 141 Mo. App. 112; State ex rel. v. Johnson, 138 Mo. App. 306. (2) A purchaser at a judicial sale purchases at his peril. The maxim, caveat emptor, applies to all such sales. And a sale by an administrator, executor or curator under the order of the probate court is a judicial sale. Talley v. Schlatitz, 180 Mo. 238; Froley v. Bulware, 86 Mo. App. 674; Hewett v. Weatherby, 57 Mo. 276; Mann v. Best, 62 Mo. 491; Throckmorton v. Penby, 121 Mo. 50. (3) Every instrument filed in the office of the recorder, for record, shall, from the time of filing same, impart notice to all subsequent purchasers, and, if they fail to discover the defect in the title to the land, they are without remedy. R. S. 1909, sec. 2810; Miller v. Whitson, 40 Mo. 97; Crane v. Dameron, 98 Mo. 567; Weir v. Cordez, 186 Mo. 388; Williams v. Butterfield, 214 Mo. 412. When the conditions which the law declares shall constitute coristructive notice are shown to exist, the presumption of such notice is conclusive, and no evidence will be permitted to overthrow or impair it. Prewitt v. Prewitt, 188 Mo. 675. One who has notice of a fact which ought to have put him on inquiry and which he might have discovered by using due diligence, cannot claim to be a purchaser without notice. Siches v. Bombousek, 193 Mo. 113; Scott v. Cordon, 109 Mo. App. 695; McAdo v. Wright, 128 Mo. App. 358. (4) The administration laws and the laws governing curators or guardians (of late years the first term having been embraced in the latter, to much confusion) are in pari materia, and must be construed together. Laney v. Browning, 112 Mo. App. 195. The title to the land was in the respondent, and not in his guardian, Edith P. Shenk. Zellers v. Surety Co., 210 Mo. 86; Silierst v. McNally, 223 Mo. 505. (5) If the court had no jurisdiction of the subject-matter, or the person, or if the court exceeded its powers or acted outside of its implied powers, it being an inferior court not proceeding according to the course of the common law, in either event, the judgment may be attacked collaterally, for a judgment so rendered is void, a nullity. Freeman on Judgments (3 Ed.), p. 112, secs. 117, 120. Stark v. Kirchgraber, 186 Mo. 633; Hutchison v. Shelby, 133 Mo. 400; Cloud v. Inhabitants of Pierce City, 86 Mo. 356; Adams v. Cowels, 95 Mo. 501; Davis v. Montgomery, 205 Mo. 271; Moss v. Fitch, 212 Mo. 484; Land Co. v. Land Co., 187 Mo. 420. (6) Judgment rendered outside the issues presented- by the pleading or where court pleadings on their face do not give the' court jurisdiction, the judgment is void. Blackburn v. Bolán, 88 Mo, 81; Strouse v. Denna.n, 41 Mo. 289; State ex rel. v. Bird, 253 Mo. 569. (7) The County Court of Blaine County, Oklahoma, had no jurisdiction to appoint a guardian or curator for this respondent. Neither the curator, nor the ward, lived in Blaine County, Oklahoma, but in Garfield County, Oklahoma, fifty miles northeast of Blaine County. The bond given was a nullity. The court who took it knew it was a nullity, and Baker, the attorney for Edith P. Shenk, so stated to the court at the time it was filed, and stated that a new bond would be filed. Yet the court certifies this spurious bond to the Probate Court of Atchison County. We are forced to believe, from this record, that William E. Shenk, the moving spirit, Ed. Baker and Judge Malcomb were in a conspiracy and colluded together to rob this infant child of its patrimony. Moss v. Fitch, 212 Mo. 484; Morx v. Force, 51 Mo. 69; Gofer v. Stover, 59 Mo. 87; Hester v. Frank, 189 Mo. App. 40; Barlow v. Steel, 65 Mo. 612. (a) The proceedings of the Probate Court of Blaine County, Oklahoma, can be attacked collaterally. If a judgment from another state should be brought here and suit instituted on it, the plea of nil debit would be good defense against it. Freeman on Judgments (2 EcL.) p. 586, secs. 559, 560, 561, 562 and 563; Callahan v. Griswold, 9 Mo. 784; Morx v. Force; 51 Mo. 69; Ward v. Quintiven, 57 Mo. 425; Nap-ton v. Yeater, 71 Mo. 358; Bradley v. Welch, 100 Mo. 258; Wonderly v. Lafayette Co., 150 Mo. 635. (8) At the time land was sold married women could not act as curator. R. S. 1909, sec. 417. This section is mandatory. A foreign curator or a foreign judgment has no extra judicial rights over a domestic curator of judgment. The real estate of a minor can only be sold in strict compliance with the statutes authorizing the sale, and then only for the purposes mentioned in the statute. R. S. 1909, secs. 171, 431, 432, 433, 439, 449 and 441; Bomfort v. Lucas, 21 Mo. '598; Williamson v. Monroe, 125 Mo. 574; Bone v. Tyrell, 113 Mo. 175; Chamber’s Admr. v. White’s Heirs, 40 Mo. 483; Walls v. Fleming, 19 Mo. 454; James v. Russik, 12 Mo. 63. (a) They must show that the statutes have been complied with. Plaster y. Graber, 160 Mo. 669; Cooley on Torts (1 Ed.), p. 523; Stevenson v. Kilpatrick, 166 Mo. 262. (b) A curator stands upon the same grounds as a trustee. A curator is, in law, a trustee, and is charged in handling trust property with vigilance and solicitude. Kent’s Commentaries (1 Ed.), 438; Hynds v. Hynds, 274 Mo. 123; Yan Raettle v. Epstein, 202 Mo.. 173; Stitt v. Stitt, 205 Mo. 155. (c) Where the rights of infants are involved, courts will not search for technical rules to sustain the transaction. Winter v. K. C. Cable Co., 73 Mo. App. 193; In v. Steel’s Estate, 97 Mo. App. 9.
   JAMES T. BLAIR, J.

This is an appeal from a judgment of the Atchison Circuit Court, which holds invalid a guardian’s sale of land and cancels certain deeds.

James A. Campbell, who died in 1889, devised his lands to his four children in equal shares, except that he provided the share of Edith P. Campbell should go to her for life and at her death should go to her bodily heirs. In 1900 Edith P. Campbell married one Logan. Respondent was born of this marriage. In 1902 Edith P. Logan, nee Campbell, divorced her husband, and, in 1904, married William E. Shenk in the State of Oklahoma. Respondent is her only child. August 26, 1907, heirs of two of James A. Campbell’s devisees began suit to partition the lands he devised. There were numerous defendants; among others, “Edith P. Shenk and W. E. Shenk, her husband, and Janies Logan” (this respondent) “a minor.” The land was divided in kind, and that involved here was allotted to Edith P. Shenk for life, remainder to her bodily heirs, as provided by the will. December 19, 1907, Edith P. Shenk was appointed guardian of respondent by the County Court of Blaine County, Oklahoma. She gave bond in the sum of $8,000, signed by Ed. Baker and W. E. Shenk as sureties. In January, 1908, Edith P. Shenk filed in the Probate Court of Atchison County her application, as foreign guardian, for an order to sell the interest of respondent in the land in suit. She accompanied this with authenticated copies of the record of her Oklahoma appointment and of the bond given in that State. The order of sale was made January 20, 1908. The interest of respondent was appraised at $3600. February 12, 1908, Edith P. Shenk reported she had sold respondent’s interest to William E. Shenk for $3600 at private sale. The sale was approved and a deed executed and delivered pursuant thereto. May 9, 1908, William E. Shenk and Edith P. Shenk, his wife, conveyed the land in suit to W. A. Williams,, who conveyed to appellant E. F. Williams in January, 1909. The latter executed a trust deed to the corporate appellant. In 1913 Edith P. Shenk died. Subsequently William E. Shenk was appointed guardian of respondent by the county court of Oklahoma. There was never any settlement or accounting made, to the Oklahoma court by either guardian. The only papers or records are those of. about the time Mrs. Shenk was appointed and the subsequent appointment of Shenk to succeed her. An aunt of respondent, Mrs. Bopst, discovered that Shenk was*inattentive-to the rights'of her nephew, whom she thereafter adopted and of whose affairs she took charge. At her instance this suit was begun. Respondent took the name of his adoptive mother.

■ The petition assails the transfer of the property by the guardian and the subsequent deeds on many grounds. Some of these go to the jurisdiction of the County Court of Blaine County, Oklahoma, to appoint Mrs. Shenk guardian of her son, and some' to the jurisdiction of the Atchison County Prohate Court to order the sale of the land in suit. The sale is also attacked for fraud on several grounds. Details are subsequently given.

I. Respondent urges that the evidence shows he and his mother did not live in Blaine County, Oklahoma, hut in an adjoining county, and that this deprived the County Court of Blaine County of jurisdiction to appoint a SY^dian. Let it be assumed it would he so in that State. Respondent's petition in this case expressly alleges he and his mother were residents of Blaine County. Further, the evidence which indicates the contrary was not offered to make this issue. It was incidental. The same witness testified in support of the allegation of the petition. In any event, this particular attack is collateral and cannot succeed. [Cox v. Boyce, 152 Mo. l. c. 582; Langley v. Ford, 171 Pac. l. c. 472, 473.]

II. It is urged that since our statute then in force (Sec. 417, R. S. 1909) did not permit a married woman to he cúratrix of the estate of a minor and since Edith P. Shenk was a married woman, she had no power to act in this State in the proceeding to sell respondent’s interest in the land in suit. It is not contended her married state affected her competency under the law of Oklahoma, in the State of residence of herself and of respondent. The Missouri statute which authorizes a foreign guardian to proceed to sell in this State property or interests of his non-resident ward does not require that such guardian shall possess the qualifications necessary to appointment in this State as guardian or curator. With respect to that the sole requisite is that the non-resident minor shall have “a guardian in that state or territory in which he resides;” and if that condition is met, so far as concerns this present contention, a probate court in this State is authorized to permit the foreign guardian to sell. [Sec. 411, R. S. 1919.]

. III. Respondent contends the Prohate Court of Atchison County was without jurisdiction to order the sale because the bond of the guardian, given in Oklahoma, was signed by the guardian’s attorney and there is a statute in that State which, he insistsrenders this bond void for the reason it was so signed. The. bond was signed by Edith P. Shenk, as principal, and W. E. Shenk and Ed. Baker, as sureties. Baker was a practicing lawyer of Oklahoma and represented Mrs. Shenk in the proceedings for her appointment as guardian in that State. The statute referred to reads as follows:

“Licensed attorneys of this State are prohibited from signing bonds as surety in any civil or criminal action, in which they may be employed as counselors, pending or about to be commenced in any of the courts of this State, or before any justice of the peace. All such bonds shall be absolutely void and no penalty can be recovered of the attorney signing the same.”

Without Baker’s signature the bond would not have been good for the amount required by Section 411, Revised Statutes 1919. The bond in this case does not fall within the statute quoted. It was a guardian’s bond. Respondent assumes the bond was given in .a “civil action. ” A “ civil action ’ ’ implies adversary parties and an issue or issues and is designed for the recovery or vindication of a civil right or the redress of some civil wrong. [Berry v. Berry, 147 Ind. 176; Iowa v. C., B. & Q. R. Co., 37 Fed. l. c. 498; In re Battle’s Est., 158 N. C. 388; Lanning v. Gay, 70 Kan. 353; Ex parte Bailey, 1 Okla. Cr. R. l. c. 119; Maben v. Rosser, 24 Okla. l. c. 598; 1 C. J. sec. 8, p. 930; 1 R. C. L. sec. 11, p.325.] In many states, e. g., Oklahoma, statutory definitions of- like tenor have been adopted. “An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” [Sec. 5536, Comp. Laws, Okla. 1909.] Secs. 5537, 5538, 5539 and 5540 of the same Laws read as follows: “5537. Special proceeding. — Every other remedy is a special proceeding.” “5538. Kinds of action. — Actions are of two kinds: First, Civil; Second, Criminal.” “5539.— Criminal Action. A criminal action is one prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof.” “5540. Civil Action. — Every other is a civil action.” "When the actions defined in Section 5539 are subtracted from all actions, as defined in Section 5536, the remainder defines “civil actions” in a manner ofttimes approved. The Constitution of Oklahoma excludes probate causes from the term “Civil Action.” [Welch v. Barnett, 34 Okla. l. c. 170.] We do-not mean to be understood as taking judicial notice of the statutes of Oklahoma. Those statutes are cited as typical and as, in fact, containing the ordinary definition of a civil action. The act respecting sureties which was offered in evidence clearly shows that “civil actions” exist in the State of Oklahoma. Since the statutes quoted were not offered in evidence, it is necessary to turn to the general definition of the words. That definition makes it clear that the bond involved in this case was not a bond given in a civil action; and, of course, there is no contention it was given in a criminal action. Such statutes are not extended by construction to subjects not within their purview. [Half-acre v. State, 112 Tenn. l. c. 611, 612; Lewis v. Higgins, 52 Md. l. c. 618.] It follows that the statute in evidence does not extend to guardians’ bonds.

IV. The petition for the sale of the minor’s interest alleged, among other things, that on account of reasons stated in detail, “it would be to the best interest of said minor ... to sell” his interest in the land in question, transfer the proceeds to Oklahoma> where both guardian and ward resided, “there to be invested in other lands. . . .” in the ward’s name. The prayer was for an order of sale “for-the purpose aforesaid.” In the order of sale it is stated and found that “the rents and profits of said land so situated” (as set out in the petition) “are wholly insufficient to pay the charges and expenses necessary to support and educate said minor.” It further recited that it was shown the proceeds could be invested in Oklahoma to “much greater advantage and to the greater interest of said minor. ’ ’ ■

Respondent insists the probate court had no power to order a sale of a non-resident minor’s realty for reinvestment; that such a sale could be ordered solely for the support and education of such minor. His position seems to be that Section 409, Revised Statutes 1919 (Sec. 439, R. S. 1909), is the only section giving power-to sell such non-resident minor’s realty, and that Section 411, Revised Statutes 1919 (Sec. 441, R. S. 1909), is designed merely to provide safeguards for a sale under Section 409. The right of a foreign guardian to deal with the real property his non-resident ward owns in this State depends, in so far as concerns the question now being considered, upon the existence of statutory authority. As early as 1845 (R. S. 1845, pp. 554, 555) the statute permitted a foreign guardian of a non-resident ward to remove such ward’s personalty to the State of their common residence. At an earlier date (Sec. 8, p. 295, R. S. 1835) the statute authorized the sale of a resident minor’s realty to defray the expenses of his education. . In 1855 there were added to the chapter on Guardians and Curators three sections (Secs. 47, 48, 49, pp. 831, 832, R. S. 1855) which are substantially the same as Sections 409, 410 and 411, Revised Statutes 1919. These are the sections respondent argues were all passed for the single purpose of authorizing a sale of land for the education and support of a non-resident minor. We do not deem this the correct construction. Section 47, page 831, Revised Statutes 1855 (now Sec. 409, R. S. 1919), made the non-resident minor’s realty in Missouri available for his support and education just as the resident minor’s land was already available for his education, under Section 24, page 826, Revised Statutes 1855. Section 47 (now 409) clearly has in view Section 8, page 823, Revised Statutes 1855 (Sec. 382, R. S. 1919), which requires the appointment of a curator for a non-resident minor owns property in this State, and contemplates his retention of such of the minor’s personalty as is not ordered paid over to the foreign guardian and the payment by the curator to such guardian of the proceeds of sales of personalty and rentals of realty under proper orders therefor. Section 48 (now 410) confirms this construction and requires the curator appointed in this State, if so ordered, to loan proceeds of sales of the minor’s realty and pay over the interest to the foreign guardian from time to time. It is obvious that Section 49 (now 411) is much broader in its language. Sections already cited provided for the removal from the State of a non-resident minor’s personalty and for the discharge of the person formerly in custody of it. It seems clear that the Legislature intended by Section 49, supra, to provide for a like transfer of the value of the non-resident’s realty to the State of his residence. The language of the section is: ‘ ‘When a non-resident minor, owning real estate in this State, has a guardian in the state or territory in which he resides, the probate court in the proper county may authorize his guardian . . . to sell such real estate and receive the proceeds of sale . . . ” The remainder of the section has to do with safeguards by which the exercise of this power is surrounded. Such safeguards were and are not required under the two preceding sections, because under them the court determines the amounts proper to be paid over from time to time and retains the remainder in the hands of the resident curator. The quoted language of Section 49 (411, R. S. 1919) is unconditional. The power to sell is not limited to a sale for a stated purpose. It is evident a sale for a transfer to the minor’s home state was intended. . Since the statute did not condition the exercise of the power, the allegations of the petition with respect to the reasons for desiring the transfer, i. e. a more advantageous investment, are to be construed as designed to induce the probate court to order the sale. Since no reason was required to be stated 'to give jurisdiction, jurisdiction was not lost because the guardian included in her petition a statement of commendable motives. The learned probate judge need not have stated in his order that the sale was for the support and education of the minor. The statute did not require it in a case like this. So far as the present question is concerned it comes down to this, i. e. that the petition and order of sale stated the facts necessary to show the statute applied to respondent’s property, and then stated other things not required to bring the matter within the statute and which did not affect its applicability. This excess of statement did not invalidate the order. [Strouse v. Drennan, 41 Mo. l. c. 298; Bone v. Tyrrell, 113 Mo. l. c. 185.] The ruling in Johnson v. Beazley, 65 Mo. l. c. 258, does not affect the Strouse decision on this point.

V. Respondent also contends that though it be held the statute (Sec. 411, R. S. 1919) authorizes the sale of a non-resident minor’s real estate, it did not authorize the sale of his interest in the tract in question. The words “real estate” when used in a statute include “lands, tenements and hereditaments” (Ninth Subd. of Section 7058, R. S. 1919) and the stat-u^e applicable to this case contains no exceptions. [Ancell v. Bridge Co., 223 Mo. l. c. 220 et seq.] Whether or not respondent’s interest was an estate in lands, it was an interest vendible by a person sui juris and under execution, despite the fact that the person or persons who are to take could not be determined until the death of the life tenant. [Godman v. Simmons, 113 Mo. l. c. 127, et seq.; Summet v. Realty & Brokerage Co., 208 Mo. l. c. 514; Parrish v. Treadway, 267 Mo. l. c. 96; Stockwell v. Stockwell, 262 Mo. l. c. 686; Sikemeier v. Galvin, 124 Mo. l. c. 372; Eckle v. Ryland, 256 Mo. l. c. 440; Armor v. Lewis, 252 Mo. l. c. 589.] Under the doctrine of this court (Oldaker v. Spiking, 210 S. W. l. c. 62, 63) such an interest when owned by a minor legally can be sold under proper orders of the probate court.

VI. It is contended the purchase price was not actually paid and that, therefore, the sale was and is void. The evidence relied upon to show non-payment seems to be that' tending to show the guardian did not account for the money in the County Court of -giaPng County, Oklahoma. The guardian’s deed recited payment in full in cash to the guardian, and that recital is prima-facie evidence of the fact. [Sec. 404, R. S. 1919.] .The embezzlement or dissipation of the ward’s money by the guardian would not concern appellants if the sale was otherwise good. [Exendine v. Morris, 8 Mo. App. l. c. 389.] _ It would not, of itself, render the sale void. [Thaw v. Ritchie, 136 U. S. l. c. 548; Fritzgibbon v. Lake, 29 Ill. l. c. 178, 81 Am. Dec. 302 and note; Mulford v. Stalzenback, 46 Ill. l. c. 309; Strouse v. Drennan, 41 Mo. l. c. 299; Harper v. Smith, 89 Ark. l. c. 288.] And a recital in the probate court record, repeated in the deed, or the receipt of the purchase price in cash cannot be disproved to defeat the title of an innocent purchaser, without notice and for value, from the purchaser at the sale. [Worthington v. Dunkin, 41 Ind. l. c. 525, 526; Cottrell v. Cottrell, 7 Ky. L. Rep. l. c. 672, 673.]

VII. The life tenant was twenty-five years of age when the sale was made. The whole property was appraised at $9,000. The ward’s interest therein was appraised at $3600. The value of the life estate wag therefore computed at $5400, which is substantially less than its value when computed by the statutory table. [Chap. 70, R. S. 1919.] The contingent interest of respondent was thus appraised at a sum in excess of the value of an indefeasible and vested remainder in the whole property. There is no claim the land was then worth more than $9000. The appraisal furnishes no basis for an attack upon the validity of the sale.

VIII. Section 402, Revised Statutes 1919, provides: “The court may order such real estate to be sold at public or private sale, or it may, in its order, provide that the guardian may sell at either public or private sale, at his option; but in no case shall the same be sold for. less than three-fourths of , , . ,, ,. its appraised value, nor shall the guardian or curator become the purchaser, either directly or indirectly, of any of the property of his ward sold under the provisions of this article.”

In Miller v. Staggs, 266 Mo. l. c. 456, it was held that under this section a sale for less than three-fourths of the appraised value of the ward’s realty was void. The decision approves a former decision (Carder v. Culbertson, 100 Mo. 269) in which it was held with respect to a like sale under the then existing statute respecting sales by curators, that the confirmation of the sale was coram non juclice and the deed showing the sale for less than the prescribed sum “was void on its face.” Whether the express provision in the succeeding section (Sec. 403, R. S. 1919) to the effect that the court shall not approve a sale for less than three-fourths of the appraised value of the property distinguishes the clause in Section 402 relating to appraised value from that respecting a purchase by the guardian is a question it is not deemed necessary to determine in this case. Even without such a statute as Section 402, a bill in equity will lie to set aside, after confirmation, a sale at which the person selling purchases either directly or through another. It is a fraud for which, in any event, an interested party may avoid the sale. [Rorer on Judicial Sales, secs. 572, 573, 574.] In the cases subsequently cited it will be found there is some authority for the proposition that at common law such a sale is absolutely void. Other authorities hold such sales voidable. In view of the character of this proceeding it is unnecessary to decide in this case whether the rule is one or the other. The facts showing the right of respondent to avoid the sale on the ground that the guardian had an interest in the purchase are all set up in the petition. The suit is in equity, and this mode of setting aside a sale and deeds of guardians to themselves is authorized by tbe decisions holding such a sale voidable only. That snch a purchase by the guardian, directly or indirectly, is ground, in itself, upon which an interested party may avoid the sale, even in the absence of a statute, is well settled. [Davoue v. Fanning, 2 Johns. Ch. R. l. c. 255, et seq.; Scott v. Gamble, 9 N. J. Eq. l. c. 236; Michoud v. Girod, 4 How. 552; Kruse v. Steffens, 47 Ill. 112; Bland v. Fleeman, 58 Ark. l. c. 90; Houston v. Bryan, 78 Ga. l. c. 185.] The rule is “not remedial but preventive,” and the fairness of consideration in a particular case cannot be shown to affect its applicability. [James v. James, 55 Ala. l. c. 531; O’Connor v. Flynn, 57 Cal. l. c. 295, 296; Grubbs v. McGlawn, 39 Ga. l. c. 675; Gilmore v. Thomas, 252 Mo. l. c. 155; Calloway v. Gilmer, 36 Ala. l. c. 362; Michoud v. Girod, supra; Lockwood v. Mills, 39 Ill. l. c. 608; Davoue v. Fanning, supra; Scott v. Gamble, supra.] “The rule . . . applies in all its force to guardians, and the disqualification attaches to the fiduciary character, independent of the mode of sale, the incapacity extending as well to judicial or other sales under adverse proceedings, as to those made by the guardian under his powers as such.” [Calloway v. Gilmer, 36 Ala. l. c. 359.] In that case the sale had been made under order of the probate court and was set aside. A like case is Cain v. McGeenty, 41 Minn. 194.

The particular ground upon which the petition in this case proceeds on this point is that the rule applies to the sale in question because the purchaser was the husband of the guardian. In Gregory v. Lenning, 54 Md. l. c. 58, it was held the husband of the guardian might buy at a sale of the ward’s land, because “the sale was not made by the guardian to her husband, but was made by the court through its trustee. ’ ’ In Davoue v. Fanning, supra, the sale was for the purpose of raising a particular legacy for the executor’s wife. The executor “by previous arrangement, suffered the property to be bought in” for her. Chancellor Kent said: “Whether a trustee buys in for himself or his wife, the temptation to abuse is nearly the same. . . . His interest here interfered with his duty. . . . Indeed, the very fact that the executor, in that instance, was exercising the general powers of his trust for the- benefit of his wife, was peculiarly calculated to touch and awaken the suggestion of self-interest. The case, therefore, falls clearly within the spirit of the principle, that if a trustee, acting for others, sells an estate, and becomes himself interested in the purchase, the cestui que trust is entitled to come here, as of course, and set aside that purchase.” In Strauss v. Bendheim, 162 N. Y. l. c. 476, the court recognized this general rule, but refused to apply it where the record showed (1) the sale was confirmed with full knowledge of the relation, (2) the cestuis que trustent did not attack the sale, (3) the question was not raised until twenty-six years later, and (4) then raised by an apparent stranger to the proceedings as an objection to the marketability of the title in a suit to compel his' specific performance of a contract to purchase. In Tyler v. Sanborn, 128 Ill. l. c. 143 et seq., it was held that a sale by an agent to his wife, the principals being without knowledge of the relation, fell within the rule and was voidable. It was said that the husband still had an interest in his wife’s property, by virtue of certain statutes, which would vary by virtue of the increase or decrease of the wife’s interest in realty during coverture, and that her emancipation did not leave him disinterested therein; that, further, their relation was such, in itself, as to enlist his interest in her material welfare, independently of his financial interest therein and thereby bring his ' interest into conflict with his duty in a sale to her. In Louden v. Martindale, 109 Mich. 242, the husband of the administratrix bought at her sale. The court did not discuss the effect of the relation. It seems not to have been in the mind of the majority of the court as a feature to distinguish the case from one in which no such relation between seller and buyer existed. The case was ruled upon the question whether the husband’s reconveyance to his wife was proof of a purchase for her. One judge dissented. He briefly stated he thought “the sale by Mrs. Burns, as administratrix, to hér husband, by which, if authorized, at least an inchoate right of dower would vest in her was invalid.” The majority did not discuss or mention this suggestion. In Brown v. Fischer, 77 Minn. 1, an infant and another sued in the district court to set aside a probate court sale of the infant’s realty. The mother of plaintiffs had a life estate in the property, and plaintiffs took the remainder under their father’s will. The mother became plaintiffs’ guardian and secured an order to sell their interest. She sold, at private sale, to her husband, plaintiffs’ step-father, and confirmation was secured through concealment of the relation the guardian and purchaser bore to each other. A Minnesota statute was in force which prohibited a guardian from directly or indirectly purchasing or being interested in the purchase of any part of the real estate he sold. It was held that the statutory rights of a wife in her husband’s property, contingent upon her surviving him, gave her such an interest as to bring the sale within the prohibition of the statute and of the common-law rule, and a finding against the validity of the sale was affirmed. In Frazier v. Jeakins, 64 Kan. 615, a guardian of minors, under order of sale by the probate court,.sold at private sale to her husband. The sale was confirmed. Subsequently the guardian and her husband sold to Frazier, who bought with notice. It was held the sale was void. On the question in the instant case it was held the wife’s interest under Kansas statutes in realty owned by her husband invalidated the sale under a statute resembling Section 402, Revised Statutes 1919. The general rule was quoted and held to apply. It was held that while the statutory rights referred to were not common law estates they were, nevertheless, property, and that the relation, itself, of husband and wife, was of a character to bring duty and interest into conflict, the thing which both the statute and the general rule sought to prevent. The court cited several decisions. It quoted from Bassett v. Shoemaker, 46 N. J. Eq. 538, l. c. 542, in which an executor sold to his wife his testator’s farm: “The exclusion of the wife as a purchaser, where the husband sells as a trustee, is not so much for the reason that he may subsequently become entitled to some interest in her lands, as on account of the unity which exists between them in the marriage relation. The case falls clearly within the spirit of the principle which excludes the husband himself.” In Burton v. Compton, 50 Okla. 365, the purchaser at a guardian’s sale under order of the probate court was the guardian’s wife. The court held the statutory interest of the husband in the wife’s estate and their natural identity of interest by reason of the relation between the husband and wife brought the sale within the general rule and the prohibition of the statute law of the State. In Chastain v. Pender, 52 Okla. 133, the same holding was made in a case in which the sale had been made by an administrator to his wife. In Langley v. Ford, 171 Pac. (Okla.) l. c. 473, it was held that a guardian’s sab and deed to a third person, followed by a deed from the latter to the guardian’s wife, could be set aside at the instance of an interested party in an action brought for that purpose in a case in which there was shown a collusive agreement to bring about the result attained. A like holding is found in McGaughey v. Brown, 46 Ark. l. c. 32. In Georgia it was held: ‘ ‘ The principle which renders an agent incompetent to purchase from himself renders him alike incompetent to sell to his wife. . No one can doubt that the husband has a beneficial though” (in Georgia) “not a legal interest in the property of his wife.” [Reed v. Aubrey, 91 Ga. l. c. 438, 439.]

The statutes of this State give the wife a prospective interest in the real property of the husband. In this cáse the wife’s life estate would preclude dower vesting in her, but iii whatever interest the husband took by her guardian’s deed she would have- been entitled to share by election under our statutes in case she had survived him. The additional consideration, adverted to in the cited cases, which arises out of the nature of the marriage relation, is also of much force. It seems to us that the application of the statute should he so made as to exclude, where reasonably possible, the violation of the principle it formulates and diminish opportunities to defraud those dependent upon the integrity of guardians for the preservation of their rights. There is nothing harsh in the statute so construed and innocent purchasers will not be harmed thereby.

There is one decision, Crawford v. Gray, 131 Ind. 53, which holds a sale made in “good faith,” without “fraud or collusion” to the highest and best bidder cannot be set aside on the ground that the purchaser was the wife of the executor making the sale. No au thorities are cited. The statutes emancipating married women are quoted, and the ruling practically rests upon the result they have effected. "We think the rule of the cases first cited is correct and so hold.

IS. Did appellants have notice? They all claim .under respondent. The title they took at the time of the conveyance under which they claim were the life estate of Edith P. Shenk and the interest of respondent, nnder the Campbell will, as set off in the partition suit. They expressly admit that in that case it was “decreed and adjudged that Edith P. Shenk and W. E. Shenk were husband and wife and that Edith P. Campbell was a daughter of James A. Campbell, deceased, and that defendant James Logan is a son of Edith P. Shenk by a former husband and is a minor.” The relation between the guardian and the vendee at her sale is thus shown by the records through which the title of appellants is deraigned. The judgment in partition bound respondent and his mother and all who claim under them. [Sec. 2023, R. S. 1919.] It was also of record in the office of the Recorder of Deeds. [Secs. 2024, 2198, 2199, R. S. 1919.] The documentary foundation of the title under the guardian’s sale, coupled with the recital of the relationship by William E. Shenk and his wife in the deed to W. A. Williams, dispelled any doubt which could possibly have arisen out of the use of Shenk’s initials in the partition judgment and made the relationship quite clear. Appellants purchased with notice. [Seilert v. McAnally, 223 Mo. l. c. 518; Higbee v. Bank, 244 Mo. l. c. 427.] The point has been decided several times. [Burton v. Compton, supra; Frazier v. Jeakins, supra; Fisher v. Bush, 133 Ind. l. c. 321; Bank v. Walkley, 169 Ala. l. c. 652.]

X'. There is support in the record for respondent’s contention that the sale was collusive and actually fraudulent> ^ie T11613^-01113 appellants present do not require further examination of that matter. Respondent complains the sum ($5000) allowed appellant Williams for improvements is excessive and illegal. Respondent did not file a motion for new trial and did not appeal. The question is not presented for consideration.. The judgment is affirmed-.

All concur except Elder, J., not sitting.


author: GRAVES, J.

text:
    W. A. ROHLF v. JOHN HAYES and KATE HAYES, Appellants.
    Division One,
    April 9, 1921.
    SUIT TO QUIET TITLE: Pleading: General Denial: - Defendant No Eight to Complain of Judgment. In a suit under Sections 2535-2537, Revised Statutes 1909, to quiet title, where plaintiff, in his petition, claims title in fee and alleges that defendants “claim some right, title or interest” in the land described and defendants file an answer denying “each and every allegation” in plaintiff’s petition, they have no right to complain of a -judgment for plaintiff.
    Appeal from Jackson Circuit Court. — Eon. Thomas J. Seehorn, Judge,.
    Affirmed.

      Jos. S. Brooks for appellants.
    Where plaintiff in his suit to quiet title tenders the issue of fee simple title, by alleging that he is the owner thereof, he must show a complete title from the patent, or must show a common source of title. The plaintiff made no prima-facie case and the- demurrer to the evidence should have been sustained, and judgment should have been for defendants. Stewart v. Land Co., 200 Mo. 281; Toler v. Edwards, 249 Mo. 162; Noble v. Cates, 230 Mo. 189.

      A. I. Beach and Bert Steeper for respondent.
    The defendants having denied in their answer that they claim any right, title or interest in the property in question, the plaintiff was entitled to a judgment on the pleadings, and since defendants claimed nothing, they cannot be hurt by a judgment for the plaintiff. Gilchrist v. Bryant, 213 Mo. 442; Graton v. Land & Lumber Co., 189 Mo. 322; Jordan v. Stevens, 55 Mo. 361; Stark v. Cooper, 217 S. W. 104.
   GRAVES, J.

The petition is an ordinary one to quiet title, under the statute, to a portion of Lot 8 of Harrison Boulevard Place, an addition to Kansas City, Missouri. Plaintiffs claim a fee simple title in the petition, and avers that defendants “claim some right, title or interest” in this portion of said lot.

Defendants’ answer reads thus:

“Now come the defendants and for answer to the plaintiff’s petition deny each and every allegation therein contained.’ ’

After hearing evidence upon the part of plaintiffs, the defendants demurred thereto, and stood upon their demurrer. The court entered judgment for plaintiffs, and defendants have appealed. They challenge here the sufficiency of the evidence to show fee simple title in plaintiff, and this in the face of their answer wherein they denied that they claimed any “right, title or interest” in the premises. This outlines the case.

The defendant has no complaint to make as to this judgment, so far as his brief goes in this court. Under Section 2535, Revised Statutes 1909, the statute under which plaintiff proceeded, it was incumbent upon plaintiff to allege in his petition (1) that he claimed some interest in the property, and (2) that defendants claimed some interest in the property. These two allegations are substantive and vital to a petition under this statute. Defendants in such action may choose their own course in the answer. The procedure is as under our civil code. [R. S. 1909, sec. 2536.] If defendants default, or appearing, admit tbe facts of the petition and consent to judgment, then costs must be taxed against plaintiffs. [R. S. 1909, sec. 2537.] In this case defendants did not default, nor did they consent to a judgment for plaintiff as per his petition. They answered, but only by the general denial set out in the statement. By this general denial they denied that they claimed any title or interest in the premises. With this denial of record, they passed out of the case below, and here, as parties having an interest in the subject-matter of the litigation. When they denied, as they did, that they claimed either title or interest in the property, it is hard to conceive their further interest in the case nisi, or here. In Gilchrist v. Bryant, 213 Mo. l. c. 444, Lamm, J., in a similar situation said:

“Furthermore, defendant does not claim title in his answer. By filing* a general denial he denied that plaintiff claims title or was the owner in fee simple absolute, but he did not stop with that — mark, he also denied that he, himself, had any claim, title or interest in the land hostile to plaintiff. On such a pleading can defendant be much injured by a judgment in favor of plaintiff? Let the judgment be affirmed. It is so ordered.”

So say we in this case. The judgment is accordingly affirmed.

All concur.