text:
    MINNIE NORTON et al. v. JOSEPH A. REED, Appellant.
    Division One,
    December 6, 1913.
    1. SALE OF REAL ESTATE TO PAY DEBTS: Publication of Notice Invalid: Sale Void. Publication of notice of an application in tbe probate court to sell real estate to pay the debts of' a deceased must be made for four weeks (twenty-eight days), and unless it was so made an order of sale and a deed made thereunder are void as against an action in ejectment by heirs of the deceased.
    2. -: --: -: Recitals in Order of Sale Disproved by the Record. Although the probate court’s order directing the sale of real estate to pay debts recites a valid notice, yet this recital refers only to the facts appearing on the record and constitutes simply a legal conclusion from them, so that if the record shows the notice to have been in fact invalid, the order of sale and a deed made thereunder are void.
    3. ADVERSE POSSESSION: Proof of Duration: Burden. The burden is upon one claiming by adverse possession to prove the full period of that possession.
    4. -: Limitations: Statute Arrested by Former Suit Involving Same Issue:, Nonsuit. Plaintiffs bring action in ejectment, to which the defendants plead adverse possession beginning December 6, 1896. Three of these plaintiffs instituted suit August 4, 1906, against this defendant and others, including their coplaintiffs, involving title to the land now in suit. They filed an amended petition in that case November 26, 1906, and a second amended petition April 22, 1907. June 3, 1907, they took a voluntary non-suit, and in October, 1907, the plaintiffs herein instituted this suit. Held, that the srfit begun August 4, 1906, arrested the running of the ten-year Statute of Limitation, so that the plaintiffs, having suffered a nonsuit in June, 1907, could bring this suit in October of that year, as they did, without prejudice from the statute.
    5. -:--: -: -: Essentials Rendering Suits Identical. In determining whether a suit, brought before the ten-year Statute of Limitations had run as to adverse possession, involved the same question at issue in this one, brought within one year after voluntary nonsuit in the former but after the ten-year period had elapsed, the question is only whether this second suit involves an identical claim against which the old suit would have stopped •the running of the statute had it been prosecuted successfully to final judgment. It does not matter that the petition in the first suit was inartificially drawn or that it commingled in the same count causes of action formerly cognizable both at law and -in equity, if it stated that the plaintiffs were the owners of the particular tract of land involved in this suit, that they were entitled to the possession of it, and that the defendants wrongfully entered into possession, ousted the plaintiffs, and continued to hold the same.
    Appeal from Reynolds Circuit Court.- — Hon. Joseph' J. Williams, Judge.
    Affirmed.

      Stuart L. Clark, Arthur I. Brewster and Sam M. Brewster for appellant.
    (1) (a) The jurisdiction of the prohate court of Reynolds county to order a sale of the real estate in controversy, attached upon the filing of the petition of the administrator, accompanied by the lists the law requires and the inventory of the property belonging to estate. ' Overton v. Johnson, 17 Mo. 422; Mount v. Valle, 19 Mo. 621; Grayson v. Weddle, 63 Mo. 523;-Patte v. Thomas, 58 Mo. 173; Freeman, Void Judicial Sales (4 Ed.), 63. (b) The finding of the probate court that the order of publication had been published in the newspaper for more than four weeks before" the first day of the term of court at which the order of sale was made, is conclusive in this action and cannot be collaterally attacked. Latriette v. Dorleque, ” 35 Mo. 233; Lewis v. Clarke, 52 Mo. 116; Freeman v. Thompson, 53 Mo. 183; Rumfelt v. O’Brian, 57. Mo. 570; Brawley v. Ranney, 67 Mo. 280; Robbins v. Boulware, 190 Mo. 50; Voorhées v. Bank, 10 Peters (U. S.), 449; State v. McCord, 207 Mo. 519; Freeman, Void Judicial Sales (4 Ed.), 81; 1 Woerner, Law of Adm., sec. 145. (c) The orders and judgments of the probate court are entitled to the same verity that is accorded to judgments of circuit courts and are not the subject of collateral attack. Camden v. Plain, 91 Mo. 117; Sherwood v. Baker, 105 Mo. 472; Macy v. Stark, 116 Mo. 451; Price v. Real Estate Assn., 101 Mo. 107; Brawford v. Wolfe, 103 Mo. 391; Covington v. Chamblin, 156 Mo. 574; Robbins v. Boulware, 190 Mo. 51; Langston v. Canterbury, 173 Mo. 131; Desloge v. Tucker, 196 Mo. 587; In re Davidson’s Estate, 100 Mo. App. 263; Cobe v. Ricketts, 111 Mo. App. 105. (d) It is only where the records of the probate court show that it is impossible to publish the order of publication from the time of the filing of the petition for an order of sale and the making of the order of sale by the court, that the same can be collaterally attacked. Valle’s Heirs v. Fleming, 19 Mo. 454; Mount v. Valle, 19 Mo. 623; Garner v. Tucker, 61 Mo. 427; Johnson v. Beazley, 65 Mo. 250; Agan v. Shannon, 103 Mo. 661; Kane v. McCown, 55 Mo. 200; Bráwley v. Ranney, 67 Mo. 283. (2) (a) Neither the first count of the original or the first amended petition stated any facts constituting any cause of action in favor of-plaintiffs authorizing the setting aside the deed of the administrator. The mere statement that said deed was void was but a conclusion of the pleader and stated no facts from which the court could find that said deed was void. Facts, not conclusions, must be stated. Humphreys v. Milling Co., 98 Mo. 552; Rogers v. Insurance Co., 186 Mo. 255. (b) Nor did the second count in either petition state any facts sufficient to constitute a cause of action in favor of plaintiffs for the recovery of the possession of the real estate, for the reason that there was no land described in either count. Newman v. Lawless, 6 Mo. 279; Livingston County v. Morris, 71 Mo. 603. (c) Each count in a petition must contain a complete statement of the facts constituting the cause of action and be complete within itself and cannot refer to other counts for constitutive averments. Clarke v. Iron Co., 9 Mo. App. 446; Boecker v. Railroad, 10 Mo. App. 451; Weber v. Squier, 51 Mo. App. 601; Graves v. Railroad, 133 Mo. App. 91; Russell v. Railroad, 83 Mo. 507; Bliss, Code ¡Pleading, sec. 121. (3) Neither the original or the first amended petition having stated facts sufficient to constitute any cause of action in favor of the plaintiffs, either to set aside the administrator’s deed, or for the recovery of the possession of the real. estate in controversy, the Statute of Limitation was not arrested by the filing of either petition and the cause of action was barred by limitation. Lily v. Tohein,'103-Mo. 490; Bricken v. Cross, 163 Mo. 499; Walker v. Railroad, 193 Mo. 474; Cytron v. Transit -Co., 205 Mo. 703.

      Robert L. McLara/n, J. B. Daniel' and George E. Smith for respondents.
    (1) No sufficient notice was published in this case, before the order of sale was made. This defect invalidated the whole subsequent proceeding. The giving of such notice as prescribed by the statute, is jurisdictional. Valle v. Fleming, 19 Mo. 455; Teverbaugh v. Hawkins, 82 Mo. 180; Hutchinson v. Shelly, 133 Mo. 400. (2) Notice of an application by an administrator to sell real estate to pay debts must be published for four weeks before the beginning of the term of court at which those interested are required to appear and show cause against the order of sale. Sec. 148, R. S. 1879. Four weeks means twenty-eight days from the first publication to the date of the beginning of the next term when parties are required to appear and show cause against the order, if any they have. If the order is made on less than twenty-eight days’ published notice, the order is. void, and the probate court has no jurisdiction to enter such an 'Order of sale, as against the persons entitled to no•tice. Young v. Downey, 145 Mo. 250, 150 Mo. 317; Robbins v. Boulware, 190 Mo. 33., (3) Tbe first and second petitions filed in the present suit were not model pleadings, but they did contain enough matter, to amend by, and did suspend tbe running of tbe Statute of Limitations. (4) Tbe recital in tbe order of sale that tbe administrator shows to tbe court that tbe notice by publication addressed to tbe parties in interest bad been published for more than four weeks prior to tbe first day of tbe May term of -said probate court, must be held to refer to tbe specific publication shown by tbe sworn proof of publication filed and made a part of tbe record in tbe same case. Judge Sherwood, speaking for this court, quoting from Mr. Freeman, says: “But no presumptions in support of the judgment are to be allowed in opposition to-any statement-contained in tbe record. If an act is stated in tbe roll as having been done in a specified manner, no presumption arises that at some future time tbe act was done in a more efficient manner. If it appear that tbe process was served in a particular mode, no other and different service can be presumed. To indulge such a presumption would be to contradict tbe record, which imports absolute verity. When, therefore, the record shows that certain steps were taken to procure jurisdiction and tbe law does not consider these steps sufficient, tbe judgment will be regarded as void for want of jurisdiction over the defendant.” Freeman on Judgments, sec. 125; Cloud Inhabitants, etc., 86- Mo. 368; Stark v. Kircbgraber, 186 Mo. 646.
   BROWN, C.

This is an appeal from a judgment for plaintiffs for the recovery of a tract of land in Reynolds county described as follows:

“All that part of the east half of lot three of the northwest quarter of section five in township twenty-nine, north of range one east that lies west of the right of way of the Missouri Southern Railroad, and west and south of a line commencing at a point on the eastern side of said lot three, seven chains and thirty-seven links south of the northeast corner of said lot three, and running thence west nine chains and fifty-nine links, thence north one chain and thirty-three links, thence west four chains and thirty-three links, thence north to the north line of said lot three, excepting therefrom a strip three hundred feet wide on the south side of the east half of said lot three.” .

The original petition was filed October 23, 1907, and is not set out in the record. The amended petition upon which the case was tried was filed in term November 27, 1907. It is an ordinary petition in ejectment for an undivided four-fifths of the land described in it, to which the plaintiff's assert title by descent from Benjamin C. Vandyke (who' died intestate in 1884), being four of the five children who.survived him. It charges the ouster of August 4, 1901.

The defendant claims through an administrator’s deed made May 13, 1889, by J. S. Rogers, administrator of Vandyke, to one Thomas Piles, for a consideration of seventy-five dollars, and also by adverse possession.

On August 4, 1906, the plaintiffs Minnie Norton, James T. Vandyke and Catharine Dougherty, three of the children and heirs of the said Benjamin C. Vandyke, brought suit against this defendant, with I. F. Reed, William H. Reed, John L. Copeland, John Cooper, Bessie Cooper (born Vandyke),--Cooper,-Cooper, John C. Vandyke and others, in the circuit court for Reynolds county returnable at the November term. The Coopers, mentioned as defendants are the husband and children of-Bertie Cooper, a deceased daughter of Benjamin C. Vandyke, and John C. Vandyke is his son. The defendants other than the Vandyke heirs were occupying claimants in severalty of the land included in the administrator’s sale already mentioned, which covered not only that now in controversy, but another tract described as twenty-five acres off the west side of the east half of lot two of the same quarter section. The petition attacked the administrator’s deed in the following language: “Plaintiffs allege that the said deed was of no effect and void. That the said J. S. Rogers had no authority at law to make the same, but that said deed constitutes a cloud upon the title of these defendants (plaintiffs) to the said lands which in equity and good conscience ought not to be.” Plaintiffs then “for a further cause of action . . . state that on the 10th day of August, 1896, they were entitled to the possession jointly with the defendants John C. Vandyke and Bertie Cooper ... of all the lands above described. That on the 20th day of August, 1896, the-said defendants last above named wrongfully entered into the possession of said lands and ousted these plaintiffs, . . . and still hold possession thereof.” There is a single prayer for relief in the following words:

“Plaintiffs pray the court to set aside and for naught ‘hole’ the said deed made by the said J. S. Rogers to the said Thomas Piles as aforesaid and to set aside and for naught hold all of the mesne conveyances between the said Thomas Piles and the defendants herein; that the court ascertain and by its judgment and decree determine the damage by these plaintiffs- sustained by reason of the waste committed by the defendants while in the possession of the said lands, if any, the value of the rents, issues and profits, and the improvements made thereon, if any, by these defendants and each of them, and that judgment be rendered against the said defendants and each of them for such sum as the court may find to be just and for the recovery of the possession -of the premises. Plaintiffs pray for such other and further orders, judgmeats and decrees as to the court shall seem just and proper and for costs.”

At the following November term (November 26, 1906) the plaintiffs filed an amended petition con-, structed practically on the same lines, except that all the Vandyke heirs were made plaintiffs. On April 22, 1907, a second amended petition was filed, in which Minnie A. Norton, Catharine Dougherty, John C. Vandyke and James T. Vandyke are plaintiffs, and Joseph A. Reed is sole defendant. This last petition was straight ejectment- for the land in controversy in this suit, omitting the other tract. It charges the ouster as of August 4, 1901. The next entry in the case was at the May term, 1907, and on June 3rd, as follows:

“ Minnie Norton et al.

v.

“ Jos. A. Reed.

“At this day by leave of court plaintiffs take a voluntary nonsuit, whereupon it is adjudged by the court that defendant recover of and from plaintiff his cost in this behalf expended and have execution therefor. ’ ’

The undisputed evidence shows that the defendant’s predecessors entered the premises in controversy on some unknown date within ten days after the rendition of a judgment in ejectment entered November 26, 1896. The proceedings in the administrator’s sale through which the defendant deraigns his title are set out in the record as follows: On February 10, 1888, J. S. Rogers, administrator of the estate of B. C. Vandyke, deceased, filed his application for the sale of the land in controversy, containing 30.29 acres, together with twenty-five acres off the west side of the east half of lot two in the same quarter section, for the payment of debts of the estate, subject to the homestead rights of the widow and children of the deceased. At the February terra of the probate court and on February 14, 1888, this petition was presented and taken up by the court. and publication ordered. In this order the land was described as follows:

“Twenty-five acres on the west side of east half of lot two, northwest quarter of section five, township twenty-nine, range one east, and east half of lot two, northwest quarter of section five, township twenty-nine, range one east, except eight acres deeded to A. B. Winchell in. northeast corner of said lot, subject to the homestead of Mattie A. Rogers, Bertie E. and James Vandyke, widow and minor heirs of the estate of B. C. Vandyke, deceased.”

On May 15th proof of publication, accompanied by a copy of the order as published was filed in the probate court. This proof is as follows;

“State of Missouri, )

“County of Reynolds j

“A. P. Shriver on oath says he is the publisher of the Reynolds County Outlook, a newspaper published in Centerville, Reynolds county, Mo., and that the annexed notice was published in said paper for four successive weeks as follows: April 20th, 1888, Vol. 11, No. 36,- April 27th, 1888, Vol. 11, No. 37, May 4th, 1888, Vol. 11, No. 38, May 11th, 1888, Vol. 11, No. 39.”

The notice annexed to the proof is in words and figures following:

“ORDER OF PUBLICATION.

“State of Missouri 1

“County of Reynolds, j SS"

“In the Probate Court, February Term, 1888.

“Estate of B. C. Vandyke, deceased.

“J. S. Rogers, Administrator de bonis non.

“Order of Publication, Tuesday, February 14th, 1888.

“Now on this day comes J. S. Eogers, administrator de bonis non of the estate of B. C. Vandyke, deceased, and presents to the court his petition praying for an order for the sale of certain real estate ' of which said B. 0. Vandyke died seized described as follows: 25 acres, on west side of east hf of lot 2 nw qr sec 5 tp 29, 1 e and e hf lot 3 nw qr sec 5 tp 29' r 1 e, except 8 acres deeded to A. B. Winchell in northwest corner of said lot, subject to the homestead of Mattie A. Eogers, Birtia E. and James Vandyke, minor heirs of the estate of B. C. Vandyke, dee’d, to pay the debts of said estate which said petition was accompanied by the account, list and inventory, as required by law, showing that said estate is indebted and that said debts are unpaid and that there is not sufficient assets on hand to pay the same; on examination thereof it is ordered by the court that all persons interested in said estate of said deceased be notified that application as aforesaid has been made and that unless the contrary be shown on or before the first day of the next term of this court to be held on the 14th day of May, 1888, next, an order will be made for the sale of the real estate in said petition described, or so much thereof as shall be sufficient for the payment of said debts and the expenses of said sale, and it is further ordered that this notice be published in some newspaper published in said county of Eeynolds for four weeks prior to the next term of this court.

“A true copy of the original order now of record.

“Attest with seal of court this 20th day of March, 1888.

“E. D.'Brawley,

“Judge of Probate and Clerk.”

The order of sale was introduced by plaintiffs from record No. 2, at page 604, in which the land ordered sold is described as follows: “25 acres on west side of east half of lot 2, N. W. quarter, section 5, townshp 29, range 1, east, except 8 acres deeded to A. B. Winchell in the northeast corner of said lot, subject ‘of’ homestead of Mattia A. Rogers, Bertia E. and James Vandyke, minor heirs of the estate of B. C. Vandyke, deceased.”

The defendant, against the objection of plaintiffs, introduced the minute book of the probate court containing an entry of the same order, signed by the judge, in -which the land was properly described. This was admitted. The next entry in that proceeding shown by this record is as follows:

“REYNOLDS COUNTY PROBATE COURT.

“November Term, 1888, 3rd Day of the Term, Nov. 14, 1888.

“Estate of B. C. Vandyke, deceased.

“Now at this day comes J. S. Rogers, administrator de bonis non of the estate of B. C. Vandyke, deceased, and shows to the court that the sale of the real estate made at the August term of this court was not made in compliance of law not having the same appraised as the law directs, the sale is therefore rejected by the court and it is further ordered by the court that the said administrator advertise and resell as the law directs and make his report at the next regular term of this court.”

The administrator’s deed is in the usual form, recites the original order of sale already referred to, and that sale took place February 11, 1889, but does not refer to the previous sale, or any subsequent order or proceeding for a resale. At the trial, which was by the court without a jury, the defendant asked and the court refused the following declarations of law.

“2. The court declares the law to be that the administrator’s deed read in evidence on part of the defendant was sufficient to pass the title to the lands therein described to the grantee therein named, and that the title and right to possession of the lands involved in this suit, which constitute a part of the lands conveyed by said administrator’s deed, is in the defendant and the plaintiffs are not entitled to recover the same and the finding should be for the defendant.

“3. The court declares the law to be that plaintiffs’ action to recover the premises sued for in this action was and is barred by thei ten-year Statute of Limitations and the finding should be for the defendant.

“4. The court declares the law to be that the first petition filed in this cause did not state any cause of action for the recovery of the possession of the premises sued for, and that the filing of said petition did not arrest the running of the ten-year Statute of Limitations.

“5. The court declares the law to be that the first amended petition filed in this cause did not state any cause of action for recovery of the possession of the premises sued for in this action, and that the filing of said first amended petition did not arrest the running of the ten-year Statute of Limitations.”

These state sufficiently, in a general way, the theory upon which the case was tried.

I. The plaintiffs say that the administrator’s deed under which the defendant claims, is v0^> ^ecause the order of sale by the Reynolds County Probate Court was made without giving the notice which the statute requires, and was therefore void; so that the deed made by its authority conveyed nothing.

They do not deny that the orders and judgments of the probate court are entitled to the same presumptions of truth in their statements that are accorded to the judgments of the circuit court in exercising a similar jurisdiction. They contended, however, that the courts must hear before they judge, and that all valid judicial action involves the opportunity to be heard. When the jurisdiction of the court is invoked, as was done by tbe administrator of Vandyke by filing Ms petition for the sale of the land for the payment of the debts of Ms intestate, it remains to acquire jurisdiction of the persons of all having an adverse interest to be affected, -which may be done by their voluntary appearance- or by the service of. notice of the proceeding. Without such appearance or. notice the vital requisite of all judicial action is wanting. In all cases where the parties to a legal controversy do not appeal' the first question for the court to determine is whether they have been given the opportunity to appear by having received such notice as the law deems sufficient. It would be absurd to say that one whose rights are to be judicially concluded has the constitutional right to a hearing, and then to condemn him by a judicial finding, made in his absence and without notice, that he has had the opportunity to be heard.

It is to guard against such absurdities, .that the law has prescribed certain procedure by which the acts of public officers, each acting in his own sphere, are written down and faithfully preserved, so as to show the truth when human memory, entangled, as it is sure to be, with human interests, shall have become a snare for the feet of the unwary. When a party proceeded against does not voluntarily appear and he is within the jurisdiction, formal process is issued under the seal of the court if it be of record, and the formal return of the sworn and bonded officer to whom it is entrusted for service must be indorsed on it; all of which is incorporated in the judgment roll and made a part of the permanent record of the court. If he is without the jurisdiction, so that he cannot be personally notified by its officers, and Ms property becomes the target of the law, that constitutional blessing called due process of law seems to require as a prerequisite to its taking or condemnation, that constructive notice be substituted for the actual notice required when practicable. This is usually served by publication, as in the case we are now considering. Its process is a formal order of the court placed upon its record as solemnly and permanently as is the final judgment, and evidence of the service of this, like the return of the officer on his personal process, is incorporated in the judgment roll.

In this case the court became vested with jurisdiction over the subject of the proceeding by the filing of the administrator’s petition asking for the sale of the two tracts of land separately described in it, and that the statutory notice by publication be given. This order must provide that all persons interested in the estate be notified of the filing of the petition, and that unless the contrary be shown on the first day of the next term of the court an order will be made. for the sale of the whole or so much of the real estate as will pay the debts of the deceased. This order, as we have already said, constitutes, in fact, the process of the court which was required to be served by publication in a newspaper. While it described correctly one of the tracts of land which the administrator had included in his petition, it did not describe the tract which is the subject of this controversy. Whether this omission alone would have been fatal to the proceeding is unnecessary, in view of the subsequent proceedings, to decide.

The notice was published with the addition of the description of the tract of land involved in this suit. The statute (R. S. 1889, sec. 147) required it to “be published for four weeks in some newspaper in the county in which the proceedings are had, or by ten handbills, to be put up at ten public places in said county at least twenty days before the term of the court at which any such order will be made, in the discretion of the court.” The court exercised its discretion by directing the publication to be made in a newspaper. The statute further provided that “upon proof of publication ... as provided in the next preceding section, the court shall hear the testimony, and may . . . make an order for the sale of such real estate, or any part thereof in this State, at public or private sale.” It will be observed that the court is required to receive proof of publication. Being a court of record it may and should make a record of this proof, and it did make such record in this case in two ways: (1) The judge over his own hand filed with the papers constituting the judgment roll the signed statement of the publisher of the paper that he had published it in his newspaper for four successive weeks as follows: “April 20th, 1888, Vol. 11, No. 36; April 27th, 1888, Vol. 11, No. 37; May 4th, 1888, Vol. 11, No. 38; May 11th, 1888, Vol. 11, No. 39.” To this proof was added the statement in the form of an unsigned jurat that it had been sworn to by the publisher who signed it, and attached to it was a copy of the order with the description of the land in controversy added, as published. This was filed on May 15th. The first day of the term was May 14th and the order of sale was made on the following day, on which the proof of publication was filed. It recited that the order of publication had been published for more than four weeks prior to the first day of the term. It will be seen, by inspection, that the first insertion as stated in the proof was on April 20th, only twenty-four days previous to-the first day of the term, and only twenty-five days previous to the actual' making of the order of sale.

That the period of four weeks that the statute required this notice to be published was. a full period of twenty-eight days is not only evident from the words themselves by the application of their ordinary and usual meaning in such a connection, but has been permanently settled by the adjudications of this court. [Young v. Downey, 145 Mo. 250, 254, 259; same case, 150 Mo. 317; Robbins v. Boulware, 190 Mo. 33.] That the notice is an indispensable prerequisite to the jurisdiction of the court to make the order of sale ds equally well settled.in the same cases. The Young, case is not distinguishable in any particular from the one we are considering. In that case the order of sale recited that the notice had been published according to law. The proof of publication shows that there had been insertions of the notice in a weekly newspaper published in the county, that is to say, on September 8th, 15th, 22d and 29th. The first day of the next term was October 2d, so that the same number of days and the same number of weekly publications intervened in that case as in this, yet the court decided that on account of the defective publication in that respect the order of sale and deed made in pursuance of it were void. On the second appeal reported in the 150th Missouri the attention of the court was called to the fact that it had decided differently in Cruzen v. Stephens, 123 Mo. 337, and after a full review of many cases both in this and other States, it expressly overruled that case.

As we have already said, the same presumption prevails in favor of the action of the probate court in this resPect that would apply in case of similar action by a court of general jurisdiction. This same question has been frequently before this court involving the validity of judgments rendered in the exercise of the general jurisdiction of the circuit courts, and it has been constantly held that, although in such cases the judgment recites a valid notice this recital only refers to the facts appearing in the judgment roll when such facts are so preserved, and constitutes simply a legal conclusion drawn from them, so that if the fact does not sustain the conclusion the judgment rendered upon such notice is void. [Cloud v. Pierce City, 86 Mo. 357, 369; Feurt v. Caster, 174 Mo. 289, 303; Stark v. Kirchgraber, 186 Mo. 633, 646; Howell v. Sherwood, 213 Mo. 565, 567, same case, 242 Mo. 513, 530.] In the case first cited, quoting from Freeman on Judgments, the court said: “But no presumptions in support of the judgment are to be allowed in opposition to any statement contained in the record. If an act be stated in the roll as having been done in a specified manner, no presumption arises that at some future time the act was done in a more efficient manner. . . . Generally the recital of jurisdiction or of service of process contained in the judgment will he construed in connection with the whole record and will be' deemed to refer to the kind of service shown by the other parts of the record. ... If an attempt at notice appears in the record, the finding, if a general one, refers to and is limited by such attempted notice.” [368, 369.] It has constantly adhered to the same doctrine up to the present time. The fact that the judge before whom the law requires the proof to be taken did not sign the blank jurat appended -to it makes no difference. The statute does not require the oath to be preserved in that way. Placing its-substance in the judgment roll with a formal filing was the act of the judge in his judicial capacity. In this case it was expressly identified in the body of the order of sale, which recited the publication of the notice in that particular newspaper. It follows that the order of sale and the deed made thereunder are void.

Proof ofDuration

II. The only remaining question is whether this suit is barred by limitation, or, to be more specific, whether the title has been divested from the heirs of Vandjffie by the adverse possession of the defendant and those through whom he claims. The only evidence in the record of the date of the actual ouster of the plaintiffs is that it occurred within ten days after the twenty-sixth day of November, 1896. The burden being upon the defendant to prove the full period of bis adverse possession it will not be deemed to have begun until December 6, 1896. This suit was not instituted until October, 1907, so that the full period of ten years bad elapsed, and the entry of plaintiffs would be barred, unless the running of the statute bad been arrested before that time. The plaintiffs claim that it was arrested by the. institution of a suit on August 4, 1906, in which three of these plaintiffs were plaintiffs, and this defendant, the remain ing heirs of Vandyke, and others, were defendants. This suit was continued by the filing of an amended petition on November 26', 1906, still within ten years from the date of the ouster proven, so that we will disregard the original petition and consider the averments and arrangement of parties in the amended petition alone. We will also, for convenience and simplicity of statement, keep in mind that the question of adverse possession not only involves the right to maintain a suit, but is a question of title; for it is settled that when continued for the requisite time, it transfers the title from the owner, to the occupant as effectually as would.a deed; so that thereafter be stands as well with respect to such title when out of possession as if bis occupancy were continued. [Fulkerson v. Mitchell, 82 Mo. 13; Nelson v. Brodhack, 44 Mo. 596; Ridgeway v. Holliday, 59 Mo. 444, 453; Barry v. Otto, 56 Mo. 177, 179; Hiler v. Cox, 210 Mo. 696, 703; Biddle v. Mellon, 13 Mo. 335, 341.] It may also be helpful to remember that there is, in tbis State, but one form of action for the enforcement or protection of private rights or the redress or prevention of private wrong. To institute an action for any of the four purposes enumerated, all persons having an interest in the subject of the action, and in obtaining the relief desired, may be joined in a petition as plain tiffs, against all or as many of the persons liable as they may think proper. If there is any defect of parties so made, or if several canses of action have been improperly united, and the matter appears' upon the face of the petition, any defendant may demur; and if it does not so appear he may make the objection by answer; and if he does not make it either by demurrer or answer he. will be deemd to have waived it. If the action should happen to be “for the recovery of possession of premises” (R. S. 1909, sec. 2382), in which two or more plaintiffs shall be joined, any one or more may recover any interest he or they may be entitled to in the same manner as if they had brought separate actions, even though others fail to prove any interest (Id., sec. 2391). And where the land sued for is held in separate possessions by different defendants the plaintiff may be compelled by motion to elect against which he will proceed (Keene v. Barnes, 29 Mo. 377), and where it is not so taken advantage of judgment may be rendered against each for his possession. [Sutton v. Casseleggi, 77 Mo. 397.]

Applying these principles we do not hesitate to hold that the suit instituted August 4, 1906, involved, among others, the very matter at issue in this. The petition may have been inartificially constructed. It no doubt commingled in the same count, contrary to rules of good pleading, causes of action formerly cognizable both at law and in equity. It stated, however, in terms not to be mistaken, that the plaintiffs were the owners of the particular tract of land involved in this suit; that they were entitled to the possession of it, and that the defendants wrongfully entered into the possession of the same lands and ousted the plaintiffs, and continued to hold the same. The statement that they had no adequate remedy at law in no wise weakened the force or effect of this statement of facts under our system of pleading; nor did the anxiety they expressed to have the administra-, tor’s deed‘removed as a cloud upon their title. There may have been inconsistent statements in the petition. If so it was a matter to be settled in due course by the court in which the cause was pending. We are not now trying a demurrer to that petition, biff we are determining whether its presentation was the commencement of an action involving the same question now presented to us, which is the ownership and right to the possession .of the land involved in this suit. We hold unhesitatingly that it was. It follows that the plaintiffs might suffer a voluntary nonsuit, as they did, without prejudice from the operation of the Statute of Limitations, provided they should begin a new action within one year after the nonsuit suffered. It is not necessary that the new suit should be in the same form or along the lines of the same theories as the old one. It is only necessary that it should involve an identical claim against which the old suit would have stopped the running of the statute had it been prosecuted successfully to final judgment. As ejectment by the same parties or some of them against one of the same defendants for a part of the same land accurately answers this description, it follows that the judgment of the circuit court was right, and it is affirmed.

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

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


source: Caselaw Access Project

author: BLAIR, C.

license: Public Domain

text:
    CITY OF RICHMOND v. E. B. CREEL, Appellant.
    Division One,
    December 6, 1913.
    SUPREME COURT: Jurisdiction: Constitutional Question: Settled by Former Cases. When a constitutional question raised before the Supreme Court has been settled by that court in other cases before the date of the appeal, the court will not entertain jurisdiction on that ground.
    Appeal from Ray Circuit Court. — Hon. Francis H. Trimble, Judge.
    Transferred to Kansas city court of appeals.

      Nathan■ Frank, Richard A. Jones and James L. Farris for appellant.

      M. M. Milligan for respondent.
   BLAIR, C.

In the city of Richmond, a city of the third class, there exists an ordinance imposing a license tax upon insurance companies and providing that any person acting as agent for any company which has not complied with its provisions shall be subject to a prescribed penalty.

The Metropolitan Life- Insurance Company, a corporation organized under the laws of New York, failed to comply with this ordinance, and appellant was found guilty of acting as its agent within the city and has appealed.

The company had previously paid the tax levied upon it under section 7099', Revised; Statutes 1909'.

The amount of the fine- assessed against appellant is five dollars, and this court has no jurisdiction of this appeal unless such jurisdiction is conferred by the character of the questions raised.

On the trial it was contended (1) that the ordinance in question is violative of section 3, article 10, of tlie Constitution, which provides that taxes “shall he uniform upon the same class of subjects within the territorial limits of the authority levying the tax;” and (2) that section 9253, Eevised Statutes 1909; in so far as it purports to authorize cities of the third class to impose a license tax upon foreign insurance companies, has been repealed, by implication, by the amendment of 1895 to article 8, chapter 61, Eevised Statutes 1909.

That the State has power to tax all trades, professions and occupations and to delegate this power to municipalities has been the settled law of Missouri for sixty years (St. Louis v. McCann, 157 Mo. l. c. 307) and, that when the power to impose a license tax upon insurance companies has been delegated to municipalities it may be exercised by them without an infringement of the constitutional provision now invoked, was expressly held by this court in City of St. Joseph v. Ernst, 95 Mo. 360. The identical question attempted to be presented here was considered and decided in that case, and the fact that the amended statute substituted for the one per cent levy, upon net premiums, by the State and the separate levies thereupon by the counties, cities and school districts a single levy of two per cent on net premiums for state, county, city and school purposes, adds nothing to the question decided in the case last cited, however important it may (or may not) be upon the question concerning the repeal of the provision in section 9253 relating to license taxes upon insurance companies.

The constitutional question raised having been settled more than a generation before this controversy arose, it cannot confer jurisdiction of this appeal upon this court. [State v. Campbell, 214 Mo. 363, and cases cited: Bank v. Glass Co., 243 Mo. 409, and cases cited.]

While counsel do not contend that the construction of the revenue law is involved, and jurisdiction thereby conferred, there is no impropriety in adding that it has been previously held (City of St. Joseph v. Metropolitan Life Insurance Company, 183 Mo. 1) that no question of such construction arises in determining whether the statutes confer upon a city the power to impose a license tax upon insurance companies.

The cause is transferred to the Kansas City Court of Appeals.

Brown, C., concurs.

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

All the judges concur.


text:
    WILLIAM G. SCHROEDER v. AURELIUS C. TURPIN, Appellant.
    Division One,
    December 6, 1913.
    1. SUIT TO CANCEL DEED: Failure of Consideration: Void Deed: No Description of Lands. Where defendant failed to comply with his agreement to convey certain lands to the plaintiff, in that he executed to him a deed wholly void because it described no land at all, no point of beginning having been fixed, plaintiff is entitled to rescind and to a cancellation of his own deeds executed to the defendant as a performance on his part of the “trade” between them.
    2. CONTRACTS: Agreement to Convey Lands: Enforceable Whether Vendor has Good Title or Not. Where a person in making a trade asserts that he has title to certain property which he agrees to convey to another as a part of the trade, that other has a right to insist upon a fulfillment of the contract whether the first party’s title be good or bad.
    3. --: -: Failure of Vendor’s Title or Deed: Resisting or Recovering Payments. A vendee, on failure of title or failure of the vendor’s deed as a conveyance, may resist th'e payment of purchase money or recover payments already made.

      4. -: -: Consideration: Inadequacy: Fraud. Shocking inadequacy of consideration together with circumstances of fraud and imposition, are held to afford additional support to plaintiff’s rights to rescind a contract for the con- ‘ veyance of lands and to have his deeds in performance thereof cancelled.
    5. -: -: Consideration: Total Failure. Cases affirming the adequacy of consideration when “the least benefit or advantage” accrues to the one party or any injury or disadvantage is suffered by the other, are to be distinguished from those in which the one party has failed to receive that particular consideration which the other party contracted should pass to him.
    6. -: -: -: Conveyance to Third Party. One who, in pseudoperformance of an agreement to exchange property, executes to another a void deed, cannot complain, when the grantee in that deed sues to have his own deeds can-celled, because that other party has attempted to convey to a third party by the description of the void deed.
    7. -: -: Rescission: Equity: Tender. Where in an equity suit the plaintiff asks for the cancellation of his deed to defendant because the defendant’s deed to him was void,, and it appears that the defendant retains property worth $240 received from the plaintiff in the same transaction, the-defendant cannot complain because the plaintiff has made no-tender of $100 in cash and some "worthless oil stock which he received in the trade, the point not having been raised! below and the equity being with the plaintiff.
    8. DEED: Not Acknowledged: Sufficient Between the Parties. A deed signed and delivered but not acknowledged is sufficient as between the parties.
    9. PLEADING: Several Counts to Meet Proof in Same Cause of Action: Election. A party cannot be compelled to elect between the counts of his petition, drawn to meet possible variations in the proof, where there is no repugnancy and but one cause of action is stated and the same relief is sought in both counts.
    10. EQUITY: Decree: Admission of Evidence: Appeal. When the justice of a decree in equity is fully established without reference to certain testimony the competency of which is disputed, the Supreme Court will not discuss the chancellor’s act in admitting that evidence.
    11. —=-: Unclean Hands: Other Party Not Injured. Where the defendant was neither deceived nor injured in a transaction by reason of the plaintiff’s placing large values on his property, there is no merit in his contention that the plaintiff’s hands are Unclean and that therefore he has no standing in equity.
    Appeal from Howell Circuit Court . — Eon. W. N. Evans, Judge.
    Affirmed.

      J. N. Burroughs for appellant.
    (1) A representation as to the legal effect of a paper or document will not support an action for fraud. 20 Cyc. 19; MeNealy v. Balbridge, 106 Mo. App. 11; Beck & Pauli Lith. Co. v. Obert, 54 Mo. App. 247. The petition alleges fraud, if anything at all, and charges that defendant knew his representations to be false. Hence under the pleadings plaintiff is not entitled to judgment unless he has shown that defendant made representations he knew to.be false. Anderson v. McPike, 86 Mo. 293 ; Redpath v. Lawrence* 42 Mo. App. 101. But where the thing is equally known to both parties and they have equal means of information, no relief will be granted. Buford v. Caldwell, 3 Mo. 477. Plaintiff must also have believed and had a right to believe that defendant had personal knowledge of the truth or falsity of the statements contained in the abstract to the Kentucky land. Bank v. Trust Co., 179 Mo. 648. (2) Plaintiff has failed to show that the alleged representations were an inducing cause for en-. tering into the contract, or that they were believed and relied upon. Unless they were he is not entitled to judgment. Powell v. Adams, 98 Mo. 598; Wood v. Evans, 43 Mo. App. 230: Even though it be found that representations were made* which were willfully false, yet plaintiff cannot recover if it be not shown that he believed and relied on those representations. Bryan v. Hitchcock, 43 Mo. 527; Nauman v. Oherle, 90 Mo. 666. One who acts on his own judgment cannot after-wards claim that a fraud was practiced upon him. 20 Cyc. 39; Warren v. Ritchie, 128 Mo. 311. Defendant’s refusal to warrant, is a strong circumstance against a belief and reliance by plaintiff on any representations alleged to have been made by defendant. 20 Cyc. 60. (3) This plaintiff also failed to show that he sustained damage, by reason of the contract. The rule is, that although a representation be false and intended to deceive, and did deceive, still there is no action, unless the deceit resulted in damages. Thompson v. Newell, 118 Mo. App. 405. (4) Plaintiff can have no standing in this court owing to his own misconduct. The evidence discloses that he was guilty of gross misrepresentations as to the value of his own property. One who comes into a court of equity seeking relief must himself come with clean hands. Miller v. Kelsay, 114 Mo. App. 598; Little v. Cunningham, 116 Mo. App. 545. (5) There was no failure of consideration for the deeds in question. If the least benefit or advantage be received by virtue of a contract, it will constitute a sufficient consideration. Lancaster v. Elliott, 55 Mo. App. 249; Lamp Co. v. Mfg. Co., 64 Mo. App-. 115. It is not necessary that a consideration should be adequate in point of value, in order to be sufficient. Brownlow v. Wbllard, 66 Mo. App. 636; Overstreet v. Beasley, 60 Mo. App. 315. (6)- Before one can maintain an action in equity to rescind a contract on the ground of fraud or imposition, he must at least tender a return by his bill of complaint. Roberts v. Construction Co., 115- Mo. App. 456. Justice demands a restoration of the status quo, whether at law or in equity. Lomax v. Railroad, 119 Mo. App. 192. (7) It appears that plaintiff had deeded to MeWeeney any claim or interest he may have held to the Howell County land, long prior to the filing of this suit and. the same had not been reconveyed to him at the time of the commencement of this action. Therefore he was not the real party in interest.- 'vran Stewart v. Miles, 105 Mo. App. 242; Mortgage & Trust Go. v. Crutcher, 169 Mo. 444. (8) Plaintiff seeks to recover upon two different theories as stated in the different counts of his petition,' though relating to the same transaction. Hence the court erred in overruling defendant’s motion to require plaintiff to elect. Ei-hlich v. Ins. Co., 88 Mo. 249.

      O. L. Hay don and W. P. Campbell for respondent.
    (1) The maxim that he who seeks equity must do equity, is not a question of pleading, but of decree. If there is anything which, under all the circumstances,the plaintiff ought to- do to put defendant in statu quo, the court may so decree. Kline v. Vergil, 90 Mo. 239; Baier v. Berberich, 6 Mo. App. 537. (2) If a representation made prior to a transaction, and directly relating to it, is of such a character that it would naturally and reasonably induce or tend to induce, any ordinary person to act upon it, and' enter into the contract or engage in the transaction, and is in fact followed by such action on the part of the other person, then it will be presumed that it was made for the purpose and with the design of inducing that person to do what he has done; that is, to enter into the agreement, or engage in the transaction. The design will be inferred from the natural and necessary consequences. 2 Story Eq. Jur. (3 Etd.), 880. (3) If a person makes a representation that he believes to be false, or has good reason to believe is false, and leads to injury, he is as liable as if he knew it to be false. Maler v. Rankin, 117 S. W. 641; 2 Story Eq. Jur. (3 Ed.), 88:6> 887. (4) A court of equity will not reimburse a fraudulent grantee, on the cancellation of the deed', for the consideration when it was paid by the defendant of his own wrong and in furtherance of an actual fraud. Life Ins. Co. v. Smith, 117 Mo. 261. (5) The court will not decree a return of the oil stock, because it was paid by defendant, if at all, in furtherance of an actual fraud. Ins. Co. v. Smith, -117 Mo. 261. (6) The plaintiff had the right to take the word of the defendant and rely upon his statement that he owned the Kentucky land. 2 Story Eq. Jur. (3 Ed.), 801, 895, 896. (7) The defendant not having tendered an issue calling for a restoration, a court of equity will not go out of its way to aid a fraudulent grantee, where the amount is comparatively inconsiderable, and where a return has been prevented in part by the act of the defendant, and where the property to be returned may not in fact belong to defendant, but to Lowe. 2 Story Eq. Rem. (3 Ed.), 688. (8) Plaintiff testified that the Detroit oil stock was a gift from Turpin, promised on the day of the deal with Lowe, in March, 1906, and that he surrendered the same to the .officers who arrested Lowe and Turpin, and that he considered it of no value and that he has never claimed it and doesn’t want it. In the absence of an issue specially tendered by defendant, a court of equity should not decree a return of that stock. 2 Story Eq. Rem. (3 Ed.), 688.. (9) The issues in this case are different in character from the insurance case, cited in appellant’s brief (McHoney v. Ins. Co.', 52 Mo. App. 94. Distinguished in Mining & Smelting Co. v. Fire Ins. Co., 62 Mo. App. 294). The case turned on the negligence of the insured. The reference to the character of the evidence appears in the opinion on motion for a rehearing,, and the rule laid down is based on the, particular facts and circumstances .of that case. (10) The rule of equity that a party seeking to set aside a contract must place, or offer to place, the opposite party in statu quo, is not applicable to a case where a deed has been obtained by fraud and without a valid consideration, .or where the consideration is valueless. Freeman v. Reagan, 26 Ark. 373; Adams v. Reed, 11 Utah, 480. (11) If defendant has entangled himself in the meshes of a knavish plot by his own fraud and connivance, so that the defendant cannot, by reason of complications for which he is not to blame, loosen him, the plaintiff’s remedy of cancellation will not he defeated because he is unable to put the defendant in statu quo. ' Railroad v. Railroad, 11 Daly (N. Y.), 373; Coffey v. Ruffin, 4 Cold. (Tenn.) 487; Brown v. Niorman, 65 Miss. 369; Paskuin v. Milliken, 163 Mo. 70.
   BLAIR, C.

Since the appeal was taken the original plaintiff has died and the cause has been revived in the name of Anna Kendall, his sole heir at law.

This is a suit to cancel deeds whereby plaintiff had conveyed to defendant one hundred and forty acres of land in Howell county.

The negotiations which resulted in the execution of the deeds sought to be canceled began with the acquaintance of the parties hereto and both had their origin upon the occasion of plaintiff’s first visit to a place in Chicago frequented by persons- known as “traders,” the vocation of most, if not all, of whom seems to have been the dealing in stocks, bonds, mortgages, deeds, etc., mainly in what defendant terms ‘ ‘ unsight unseen trades. ’ ’

It is fairly inferable from the record that this phrase possessed, among these traders, a meaning not greatly different from that which it has among schoolboys, i. e., each high contracting party seeks to offer something so valueless that he cannot lose however worthless the thing he receives may be. There was this difference, however; among schoolboys the rule “whole blade or no trade” sometimes prevails — among the “traders,” above mentioned, however, we find no evidence of any corresponding restriction upon their freedom of contract.

There is no evidence plaintiff was advised of the custom prevailing in this busy mart of trade in which he was, at the age of seventy-nine- years, introduced to defendant by one Low, who was a “trader” and whose assets consisted of a valise filled with mining stock, ancient .railroad bonds, etc., and a willingness to trade for anything anyone might .offer.

That plaintiff did not know the rules and customs under which his new aequaintenances operated is evidenced by the fact that he offered actual property, to which he had good title, and by the further fact that he tried to get defendant to “put some money into, the trade. ’ ’ On this last proposition he was at first rather sternly rebuked, though defendant did “put in” twenty-five dollars after confirming, by visits to Indiana and Missouri, the astonishing suspicion that plaintiff really owned the land he claimed in these States.

Plaintiff .owned the land involved in this suit, twenty acres (subject to mortgage) in or near South Bend, Indiana, and eight lots in Denver, Colorado.

To plaintiff defendant represented that he owned' a one-half interest in 10,000 acres of land in Kentucky and exhibited an abstract of title and a letter from an abstractor of the county in which the land was. said to be located, which letter glowingly pictured the wealth of timber above and coal beneath the tract described.

This land defendant agreed to convey to plaintiff in exchange for the twenty acres at South Bend (subject to mortgage), eight lots in Denver and the one hundred and forty acres involved in this suit. Plaintiff’s properties were, in the trade, valued at $500' more-than defendant’s land, and the parties differ as to whether this sum was to be paid in cash or secured by mortgage on the Howell county (Missouri) tract. The pretended consummation of this exchange resulted’ in the conveyance to defendant of all he bargained for and all plaintiff had, while plaintiff received twenty-five dollars in money, some oil stock and a deed in which the description is as follows:

“A one-half interest in the following described real estate: Beginning at a point on the Big Sandy river below the southern line of James H. Mallory; running thence north 42 degrees E. 1900 poles to a stake; thence south 48 degrees E. 900 poles to> a pine; thence south 48' W. 1900' poles to a point in the Big Sandy river marked by a double stump; thence along the Big Sandy river to the point or place of beginning, containing ten thousand acres, more or less,” in Johnson county, Kentucky.

There is evidence no James TI. Mallory then lived or ever had lived in Johnson county, and also direct evidence, received without objection, that there was no possibility of locating any land by the description in the deed.

Plaintiff subsequently demanded $500', representing the difference in trading valuations, as stated, but defendant contended plaintiff had agreed to accept a mortgage on eighty acres of the Howell county land, securing a note for $500 to be executed by a “straw man” of plaintiff’s selection. Defendant claimed also to have discovered that the mortgage on the South Bend property was $500 greater than had been represented, and insisted in offsetting this- excess against plaintiff’s demand. Low’, “a trader” par excellence, as, the term is above defined, then began to take an active interest and, for plaintiff’s “interest” in the Kentucky land, “traded” him some railroad bonds, secured by a fourth mortgage on the property of the “South Carolina Railway Company,” which bonds showed no transfer to Low, though by their terms they were unassignable except by transfer .on the company’s books, certified on the bond itself by the company’s transfer agent. The last transfer had been made about twenty years prior to the transaction between Low and plaintiff. Defendant knew of this “trade” at the time but testified he had no interest in it, though immediately thereafter he' and Low and plaintiff engaged in another “trade” whereby plaintiff received seventy-five dollars and another railroad bond and acknowledged satisfaction of the $500 mortgage defendant had agreed to execute to him and agreed to pay the $500 mortgage on the South Bend property which was overlooked in the original agreement.

The judgment was for plaintiff, canceling the deeds to defendant.

I. It is averred in the answer that the abstract of title to the Kentucky land, exhibited to plaintiff, showed title in defendant, and defendant testified he had had the “title” thereto for ten years, having acquired it from the persons named in the abstract as his grantors. Plaintiff testified defendant told him he owned the one-half interest in the 10,000 acres in Johnson county, Kentucky, and agreed to convey that interest to him, and the finding of the truth of that testimony is fully justified.

The deed executed by defendant is absolutely void by reason of the fact that it describes no land at all, no point of beginning having been fixed (2 Devlin on Deeds [3 Ed.], sec. 1011a), and it also appearing from both the deed and testimony offered that, it is impossible to identify any land in Johnson county, Kentucky, as falling within the description given. The description in the deed was not taken from the abstract.

In fact, therefore, defendant has not complied with the agreement to execute to plaintiff a deed for a one-half interest in the Kentucky land. "Whether his title thereto was good or bad plaintiff had a right to contract for a conveyance thereof and a right to insist upon the fulfillment of that contract. Whatever interest defendant had (and the answer avers the abstract shows title in him and he testifies he had the title) plaintiff contracted for it. The fact that defendant refused to execute a warranty deed does not excuse him from executing the deed he agreed to execute.

The instrument in evidence is no deed at all, and defendant has failed' to perform the agreement on his part. He actually received all plaintiff agreed to convey to Mm, one hundred and sixty acres of land and eight city lots, and now seeks to retain it despite his own failure to perform the contract. His failure to comply entitles plaintiff to rescind. [2 Warvelle on Vendors, sec. 828.]

Failure ofConveyance.

Also, the principle wMch entitles a vendee, on failure of title or failure of the deed as a conveyance, to resist the payment of the purchase money or recover payments already made (Owens v. Rector, 44 Mo. l. c. 392; Wheeler v. Standley, 50 Mo. 509) entitles plaintiff to rescind and recover his land.

Further, the shocMng inadequacy of the consideration (taking into account the absolute nullity of defendant’s deed) together with the circumstances of imposition and fraud disclosed by the record, affords additional support of plaintiff’s right to rescind. [Obst v. Unnerstall, 184 Mo. l. c. 392.]

The cases cited affirming the adequacy of considerations of agreements when the “least benefit or advantage” accrues to the one party or injury or disadvantage to the other are not applicable. In this case plaintiff has not received the consideration defendant contracted should pass to him, while the eases cited belong to a class involving no such situation.

II. So far as concerns the contention that plaintiff is estopped to rescind because he attempted to convey the Kentucky land to Low, it will suffice to gay that plaintiff had no interest he could convey, and defendant cannot complain because of the ineffectual attempt to do so. It would not have been necessary for plaintiff to have offered to reconvey to defendant before bringing this suit. In the circumstances such reconveyance would have been “a nugatory act and unavailing for any purpose.” [Lawless v. Collier’s Exrs., 19 Mo. l. c. 485.]

Plaintiff acquired no interest under the deed to' him .and there was, consequently, nothing he could convey to Low or reconvey to defendant. '•

The attempted conveyance was a nullity and, with respect to the Kentucky land, left both plaintiff and defendant exactly as they were before. Whatever .Low’s rights may be by reason of the ineffectual character of plaintiff’s deed to him, defendant was in no way affected thereby.

III. It is contended plaintiff’s suit must fail because the petition does not tender to defendant the one hundred dollars in cash and some oil stock received from him in the transaction. As to the latter item the weight of the evidence is that it was worthless. The trial court must have so found to render the judgment it did, and we do not feel disposed, on this record, to overturn that finding. Plaintiff, however, received one hundred dollars in cash. For this, alone, in truth, he conveyed to defendant the South' Bend property, the Howell county land, worth about, $2000, .and eight lots in Denver, concededly worth $240'.. These last mentioned lots defendant still retains, and this decree, of course, does not disturb his title to them. Defendant testified the South Bend property was sold under the mortgage upon it.

The eases cited by defendant’s counsel apply the rule that in actions at law a tender is a condition precedent to the rescission of a release, of the cause of action upon which recovery is sought.

In this case the question of tender was not raised in the trial court in any manner, and it clearly appears from the facts in evidence that defendant had and retained the lots in Denver, worth at least two hundred and forty dollars. This is a suit in equity, and on the grounds that the question was not raised below and that the court could not, on this record, have justly decreed any return to defendant, the point must be ruled .against him. [Peak v. Peak, 228 Mo. l. c. 556, 557.]

Deed notAcknowledged,

IV. After the trade with defendant, plaintiff, acting on bad advice, attempted to execute a deed to one McWeeney for the land in suit. It is contended plaintiff did not own the land and could not sue. McWeeney reconveyed to plaintiff, omitting to acknowledge the deed, but signing and delivering it prior to the institution of this proceeding. This was sufficient as between the parties (Vincent v. Means, 207 Mo. l. c. 715; Genoway v. Maize, 163 Mo. l. c. 231, 232), and defendant is in no position to complain. The subsequent acknowledgment by McWeeney does not affect the question. Whether the deed to McWeeney was void under the rule that a mere right to sue for fraud upon the assignor is not assignable (Ryan v. Miller, 236 Mo. l. c. 514, 515) it is not necessary to decide.

V. The trial court’s refusal to require plaintiff to elect between the counts of his petition did not constitute error. Counsel does not argue the question or attempt to point out any inconsistency between the counts. The petition presents the ordinary case of separate counts drawn to meet possible variations in the proof. There is no repugnancy within the rule (Rinard v. Railroad, 164 Mo. l. c. 284), and but one cause of action is stated and the same relief is sought in both counts.

VI. In view of what has been said it becomes unnecessary to discuss the competency of the testimony concerning defendant’s title to the Kentucky lands, the justice of the decree being fully established without recourse to that testimony.

Tlie suggestion that plaintiff’s hands are unclean because he placed large values on his properties is without merit. The record shows defend-ant was not deceived and demonstrates he was not injured thereby. Defendant cannot very consistently harmonize this contention with his resistance to rescission. The rule invoked has no such application as suggested.

The net result of the “puffing” on both sides was the acquisition by defendant of nearly $2500' worth of land for $100.

It may be added that it is unnecessary, in view of what has been said, to discuss in detail the question whether the allegations of fraud were proved. The judgment is affirmed.

Brown, C., concurs.

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

All of.the judges concur.