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    WILLIAM L. CROSBY, Appellant, v. MARY F. EVANS and SUSIE E. EVANS.
    Division One,
    March 2, 1920.
    1. PRACTICE: Further Evidence After Demurrer. To permit plain- « tiff to introduce further evidence after he has rested and after a demurrer to the case as then made has been argued is a'matter within the trial court’s discretion.
    2. COVENANTS: In Deed and Mortgage. A vendee who secures payment to his vendor of the price of his purchased property by mortgaging back with .convenants the estate granted, does not thereby release the vendor from liability on his, similar covenants.
    3. -- — : - — : Running With the Land. The covenant of indefeasible seizure runs with the land when the deed containing it passes any interest to' carry the covenant along, the purpose being to enable a remote grantee substantially damaged by the breach to recover his damage; but a purchase-money mortgage or deed of trust, given by a grantee who suffers from his grantor’s broken covenant, does not carry back to the grantor the right to sue on the covenants in the original deed or cancel those covenants.
    4. -■: -: Estoppel: Damages. The grantee in a deed who gives back a deed of trust for the purchase money, containing Similar covenants, does not estop himself thereby to sue on the covenants in the deed when a substantial breach occurs which damages him, nor create in the grantor a right to sue.
    5. -: Foreclosure of Deed of Trust by Agreement: Grantee’s Right to Damages for Breach. The grantee, who gave a deed of trust back to secure the purchase money, did not lose his right to recover damages for breach of the covenants contained in his deed, if default in payment and foreclosure sale by the trustee occurred pursuant to a scheme arranged between said mortgagor and said mortgagee that the mortgagee was to buy in order to cure a fault in said mortgagor’s title for which the mortgagee was liable on his covenant.
    f>. —-:--—: -: Subsequent Sale. And where the agreement was .that the deed of trust, should be foreclosed and the property bought by the mortgagee in order to perfect title in the mortgagor, but the mortgagee, having purchased at the sale, conveyed to a third party, thereby cutting off the mortgagor’s title, the mortgagor is entitled to maintain an action for breach of the covenant contained in tbe deed to him as grantee and recover the amount of purchase money paid by him after his eviction by such subsequent grantee.
    7. -: —■-: -: Interest. The mortgagor, in his action for damages for breach of covenants, is entitled to interest on money paid on the purchase price, only from date of eviction, and not from date of the payments, if he was meantime in possession and was not answerable over to any one for rents and profits.
    8. --■: -: -: Reply: Departure: Confession and Avoidance. Where the defense set up in the answer to an action for damages by the grantee for breach of covenants in a deed, is that the plaintiff lost his right to sue as the result of the sale under the purchase-money deed of trust, .a replication pleading, by way of confession and-avoidance, an agreement that the property should be sold by the trustee in order to perfect the title in the defendant, does not state a new cause of action, and-is not a departure, unless the agreement was a contract substituted for the covenants.
    8. JURY: Irregular Summons. An irregularity in summoning tales men for the jury, no prejudice appearing, is not reversible error.
    Appeal from Greene Circuit Court. — Hon. Arch A. Johnson, Judge.
    Remanded {with directions).

      U. G. Johnson and Warren L. White for appellant.
    (1) The answer states no defense. It is true that convenants of seizing and of warranty run with the land-in this State, and inure to the subsequent grantee upon whom loss falls. Coleman v. Lueksinger, 224 Mo. 15; Allen v. Kennedy, 91 Mo. 381; Dixon v. Desire, 23 Mo. 151. But this rule is not applied to a mortgage given for the purchase money, (a) Wthere a conveyance is made with such covenants and a mortgage with like covenants is given for the purchase money, the mortgagor is not estopped biyi his covenants to sue on the vendor’s covenants, nor does the vendor absorb all right by virtue of the mortgage back to him. And this is true in those states where the mortgagee taxes the title instead of mere lien. Connor v. Eddy, 25 Mo, 72; Randall v. Lower, 98 Ind. 258; 12 Cent. Digest, 122, Title Covenant, sec. 75; Hubbard v. Norton,-19 Conn. 422; Hardy v. Nelson, 27 Maine, 525; Rawle on Covenants, secs. 217, 219; Resser v. Carney, 54 N. W. (Minn.) 89,; Haynes v. Stevens, 11 N. H. 34. (b) A foreclosure of the purchase money mortgage, by the vendor, where he purchases at the foreclosure sale, does not extinguish the right of action of the mortgagor for breach of the covenants in the deed to him. Resser v. Carney, 54 N. W. (Minn.) 91; Haynes v. Stevens, 11 N, H. 35; Bennett v. Vance, 3 John. (N. Y.) 363, (o) Til those states where a mortgage vests the legal title in the mortgagee, a mortgage for the purchase money does not extinguish ■ the mortgagor’s right to sue on the covenants in the deed by which he acquires title. Hardy v. Nelson, 27 Me. 528; Rawle on Covenants, sec. 219, and note 1, p. 328; Bennett v. Vance, 3 Johns. 363. (2) The after acquisition of the paramount title which defendants plead is no defense. Plaintiff having failed to record his deed, defendants, after purchasing the paramount title, conveyed it to a stranger. Defendants are estopped by that act to deny liability on their covenants. Besides, defendants had foreclosed their purchase money mortgage March 31, 1910, before they bought the outstanding title at the sheriff’s sale May 11 of that year, so that defense is refuted by the facts. 11 Cyc. 1122, note 76; Clark v. 0'’Neal, 1'3 La. Ann. 381; Williamson v. Williamson, 71. Me. 442; Curtis v. Peering, 12 Me. 499. (3) That the foreclosure was pursuant to an agreement to perfect the title, not a hostile one, and left plaintiff’s right to redeem unimpaired, was sufficiently shown to make out a case for the jury.

      G. W. Goad and O. T. Hamlin for respondents.
    (1) The second count of defendant’s answer states a complete defense to plaintiff’s petition, (a) In Missouri covenants of warranty run with the land, and the right to sue upon a broken covenant of warranty passes to the grantee' or assignee, who must sue in his own name. The grantor or assignee cannot sue. Van Dorn v. Rolfe,- 20 Mo. 455; Dickson v. D’esire, 23 Mo. 166; Chambers v. Smith, 23 Mo. 174; Vancourt v. More, 26 Mo. 98; Jones v. Whitsett, 79 Mo. 191; Hunt v. Marsh, 80 Mo. 308; Allen v. Kennedy, 91 Mo. 324; Johnson v. Johnson, 170 Mo. 48; Coleman v. Lucksinger, 224 Mo. 14; Langenberg v. Heer Dry Goods Co., 74 Mo. App. 20. (b) A mortgage or deed of trust on.real estate is now a mere surety for the debt — is a chattel interest passing at the death of the mortgagee to the personal representatives. Therefore, a mortgagor, prior to foreclosure, continues to be the owner of the estate so long as he is permitted to remain in possession. Woods v. Hildebrand, 46 Mo. 286; Pierce v. Gabber t’s Adm., 70 Mo. App. 205; Kennett v. Plummer, 28 Mo. 142; Pierce v. Iron Co., 491 Mo. 124; Hardwick v. Jones, 65 Mo. 60; In re Life Assn, of America,. 96 Mo. 636; Fischer v. Johnson, 51 Mo. App. 162. The last-mentioned point and authorities fully explain the reason for the ruling in Conner v. Eddy, 25 Mo. 72, cited and relied on by plaintiff, (c) Plaintiff cannot claim as an excuse for defaulting in the payment of the notes secured by! the deed of trust to defendants that there was. a defect in the title conveyed by the warranty deed of defendants. Cartwright v. Culver, 74 Mo. 179; Hunt v. Marsh, 80 Mo. 398; 27 Cyc. 1554, 1555. (d) Defendants conveyed to plaintiff with covenants of warranty, and plaintiff conveyed back to defendants with like covenants of warranty. These covenants cancel each other." Dervin v. Hendershott, 32. Iowa, 192; Stephens v. Winship, 11 Am/ Dec. 182; Hatch v. Kimball, 14 Me. 9; Goodall v. Bennett, 22 Wis. 565; Green v. Edwards, 15 Tex. App. 382; Eveleth v. Crouch, 15 Mass. -307; Carroll v. Carroll, 113 Iowa., 419; Willis v. McGough & Co., 56 Ga. 198; Field v. Willingham, 49 Ga. 345; Brown v. Metz, 33 111. 330; Silvermann v. Silvermann, 3.04 111. 137; 11 Cyc. 1094. (2J If it be determined that plaintiff still had a right to sue notwithstanding the foreclosure of the deed of trust which divested him of all title, - or that defendants acquired the land at said foreclosure sale in trust for the use of plaintiff, then the after acquired title of defendants at the sheriff’s sale June 11,19101, by virtue of their warranty deed to plaintiff June 10, 1907, inured to and vested in plaintiff and no damages for breach of covenant can rise. Boyd v. Haseltine; 110 Mo. 206; Cocrill v. Bane, 94 Mo. 444; Johnson v. Johnson, 170 Mo. 34; Cartwright v. Culver, 74 Mo. 179; Hunt v; Marsh, 80 Mo. 398; Crumb v. 'Weight, 97 Mo. 19,; R. S. 1909, sec. 2871; Reese v. Smith, 12 Mo. 344; Collier v. Cambie, 10 Mo. 466; Bank of Utica v. Merservan, 49 Am. Dee. 197; 11 Cyc. 1137. (3) Defendants’ motion to strike out plaintiff’s reply should have been sustained, (a) Plaintiff’s petition is an action at law for breach of covenant. The reply is an action in equity to declare a trust based on a written agreement. These two causes of action should have been alleged in the petition, not one in the petition and the other in the reply. Mathieson v. Railroad, 219 Mo. 552; Moss v. Fitch, 212! Mo. 502; Hill v. Mining Co., 119 Mo. 30; Jackson v. Powell, 110 Mo. App. 252; Stepp v.. Livingston, 72 Mo. App-. 179; Crawford v. Spencer, 36 Mo. App>. 82; Lanity v. King, 93 Mo. 519; Rhodes v. Lumber Co., 105 Mo. 31131; McMahill v. Jenkins, 69 Mo. App. 281; Milliken v. Commission Co., 202 Mo. 654; Mahoney v. Reed, 40' Mo. App. 99; Cement Co. v Ullman, 159 Mo. App. 254; Roving Fork Co. v. Produce Co., 193 Mo. App. 658; Mahoney v. Reed, 40' Mo. App. 109. If plaintiff’ desired to shift his ground he should have done so by amending his petition. Randolph v. Frick, 57 Mo. App. 405. Said cause of action should be separately stated, separately tried, one by the chancellor and one by a jury. McHoney v. Ins. Co., 44 Mo. App. 426; Zeidman v. Molasky, 118 Mo. App. 123; Young v. Coleman, 43 Mo. 179; Jones v. Moore, 42 Mo. 413. (b). A reply cannot be used in aid of the petition to introduce for the first time a hew cause of action or an additional caiise of action, nor to engraft on the petition a material allegation omitted therefrom. Rhodes v. Lumher Co., 105 Mo. App. 313; McMahill v. Jenkins, 69 Mo. App. 281; Hill v. Mining Co., 119 Mo. 30. (4) Defendants’ demurrer to the evidence at the close of plaintiff’s case should have been given, as the evidence failed to establish the terms and conditions of the alleged last written agreement set up in plaintiff’s reply, (a) The conversation of Geo. W. Evans with the witnesses, IT. G. Johnson and A. W. Lincoln, had long prior to the date of said alleged written agreement, is no evidence of the subsequent written agreement. Gorham v. Auerswold, 5i3 Mo. App 131; Conrad v. Fischer, 37 Mo. App. 376; Johnson Co. v. Wood, 84 Mo. 489 ; Big,nal. v. Pierce, 59 Mo. App. 673; Ta.ylorv.iggs, 26 IT. S. 591,7 L. Ed. 275; Richard v. Robbins, 124 Mass. 105. (b) If an agreement can be inferred from the facts related by the witnesses Johnson and Lincoln, and a subsequent written agreement inferred from that agreement then we have an inference based on an inference — a presumption on a presumption which is prohibited by law. Wulfing v. Cork Co., 250 Mo. 723. (c) The witness Goad testified only as to the fact that a written agreement was entered into regarding the sheriff’s sale. There was no evidence that any written agreement (or any other agreement) was ever made regarding the foreclosure sale of the deed of trust, althought such agreement must be. shown to have not only been made, but its contents proven by full, clear, strong and convincing’ evidence. Bennett v. Walker, 23 111. 97; Peters v. Wjorth, 164 Mo. 439; Cunningham v. Railroad, 61 Mo. 36; 17 Cyc. 778; 2'5 Cyc.' .1627; 3 Wigmore on Evidence, sec. 21105, p. 2845. (5) The trial court erred in submitting’ the cause of action alleged in plaintiff’s reply to a jury. The same should have been tried by the chancellor. McHoney v. Ins. Co., 44 Mo. App. 426; Jones v. Moore, 42 Mo. 413; Young v. Coleman, 43 Mo. 179. (6) The trial court erred in requiring the sheriff to summons five extra jurors. The court’s duty to make out such list of extra jurors cannot be legally delegated to the sheriff. Laws 1911, p. 307, sec. 8. (7) Plaintiff was entitled to interest only from date of eviction. The instructions and verdict gave interest from date of payments.- Pence v. G-abberts, 70 Mo. App. 209.
   GOODE, J.

The defendants Mary F. and Susie E. Evans, conveyed by a warranty deed, dated June 25, 1895, recorded April 23, 1903, to George W. Evans, their father, Lot 37 in Block 3 of Hobart’s Addition to the City of North Springlfileld (now Springfield), Missouri. On June 10, 1907, the defendants conveyed the same lot to the plaintiff, William L. Crosby, and his then wife, Jennie Crosby, from whom he was divorced in 1908. That conveyance, both parties agree, contained the covenants to be implied from the words ‘ grant, bargain and sell;” namely, covenants that the grantors were seized, at the date of the conveyance, of an indefeasible estate in fee simple in the lot; that it was then free from incumbrance done or suffered by the defendants (the grantors) or any person under whom they claimed, and for further assurances of the title biy! them and their heirs to the grantees and their heirs and assigns. The statement is made by one of the parties and not contradicted by the others, thaiti there was in said deed a separate covenant of general warranty, and that the present ■action is on .all the covenants-; but the petition, as epitomized in the abstract of record, counts on a breach of the covenant of seizin only, alleging “that at the time of the conveyance the plaintiffs [sic] were not seized of a fee simple title to the said premises, and had no title whatever to the same; but that said title was outstanding in other persons, and by reason whereof plaintiff lost possession and was ousted,”' etc. On June 10, 1907, the date of the deed to plaintiff and his wife, they gave a deed of trust on the lot to J. B. Johnson, trustee, to secure payment to the defendants of seventy-eight promissory notes, payable from month to month, for $12.50 each, or $975, representing- the price of the lot ($1000), except a cash payment of' twenty-five dollars. That deed of trust contained the statutory covenants implied from the words “grant, bargain and sell.” About one year later, and on June 29, 1908, plaintiff’s former wife conveyed the lot and other lands to him by a deed containing the statutory covenants. Between the year 1895, when the defendants conveyed the premises in question to their father, George W. Evans, and June 10, 1907, when they conveyed it to plaintiff and his wife, said George W. had passed the title to George F. and Kate Baldridge, by a warranty deed, dated April 25,1903, recorded May 22, 1903. The Bald-ridges attempted to give a deed of trust on the lot, dated April 21, 1903, filed May 27th the same year, to J. B. Johnson, as trustee for George "Wj Evans, to. secure their note for $755 to Evans; but this instrument, though signed by the Baldridges, named Evans as the grantor and, besides, was acknowledged by the Bald-ridges, before said trastee as a notary public. Three months later, on July 27, 1903, the Baldridges gave a deed of trust, filed July 28, game year, on the premises to Webster Edwards, trustee, to secure the payment of a promissory note for $150 to M. L. Middleton. The last incumbrance was a lien prior to the title of the plaintiff Crosby, and was learned by him to be in 1909 or 1910, when he had agreed to sell the lot, and the title was examined by an attorney for the would-be purchaser. Meanwhile Crosby had paid installments amounting to three hundred dollars on the price he was to pay defendants. ' At this point there is testimony tending to show an agreement in writing was made between Crosby and George W. Eivans, the latter acting as agent for defendants, by which said Evans was to have the first. Baldridge deed of trust, also the one given by the Crosbys, foreclosed, and have Crosby, or the defendants for him, buy the lot at the foreclosure sales and thereby make perfect his title. Crosby was not permitted to testify about this agreement, because George. W. Evans, who made it with him, had become demented; and the terms of the instrument, which had been lost, are to be gathered from oral evidence. Judge Lincoln, an attorney of Springfield, testified Crosby and George W. Evans consulted him about what to do to cure the former’s title after he (Lincoln) had discovered its defects, and he advised them they “had better reform that deed of trust (meaning the first Baldridge one) in the circuit court and get a foreclosure there, and also foreclose the other deed of trust Mr. Crosby had given; that he recommended that course for the purpose of getting the title where it would pass to Mr. Crosby. This testimony was given by Lincoln:

“Did Mr. Evans say anything about the purpose of those proceedings? Were they to clear the title? A. That was what he wanted to have done, clear up the title and give Mr. Crosby and those claiming under him a good title.

“Q. Did they talk about that arrangement in your presence? A. They did.

“Q. What was the reason for foreclosing the deed of trust that Crosby had given? A. The reason for that was to cut out the after title of Mr. Butcher and Mr. Robertson.

‘ ‘ Q. They had filed some conveyance for record, had they?] A.- Yes, sir.”

Another attorney, U. G. Johnson, who then represented Middleton, said Evans officed across the hall from him and talked to him about making the agreement after Judge Lincoln had advised them, but he (Johnson) did-n’t know when it was made; only knew what Evans said he was going to do. Witness, among other statements, said:

“Q. You say that Evans talked to you about that matter of Crosby’s?! A.. Yes, sir.

“Q. What did he tell you, if anything, about what he was going to do? A. His conversation to me was along this line; in the first place, he wanted to know what he could do after he found this defect. He said, ‘I want to make my title good to Mr. Crosby,’ and I think, maybe, I looked into it and told him he would have to foreclose, and that is what he agreed to do and he said Croaby had paid him pretty regular and he wanted to make good, ’ ’

George W. Goad, also an attorney, testified he drew an agreement between Evans and Crosby relating to the first Baldridge deed of trust, but that he couldn’t recall the contents of the agreement; thought it was about the lot in question; involved a deed by Evans to Crosby of timber land in Dallas County; was drawn when the sheriff’s sale was expected under the foreclosure judgment .(to-wit, of the two Baldridge deeds of trust); didn’t relate to foreclosure of Crosby’s deed of trust, but was long before; was some agreement about what should be done when the property was sold under foreclosure ; the agreement was signed. These questions and answers are parts of Goad’s testimony:

!£Q. And did it purport to measure all the rights growing out of the foreclosure sale and the rights' growing out of the sale of this lot under the deed of trust ? A. At that time. There had been a judgment on. this Bald-ridge deed of trust, but the sale didn’t occur for two or three months afterwards, or the next term of court.

££Q. They were friendly? • A. At that time they were. This agreement tvas had long prior to the foreclosing. My recollection is the sale under the Crosby mortgage was prior to the sale under the judgment and that this agreement was long prior to both of them. . ...

££Q. Did the contract contain a recital for the consideration of the deed to Crosby and the deed in which title failed? A. I don’t know.

£ £ Q. Did it recite what payments had been made by him? A. I don’t think so.

££Q. How were they to arrive at the consideration for this contract, the amount of Crosby’s damage? A. I can’t tell you. I know there was some insurance, some taxes and some bills, and some other things. Crosby and Evans had been negotiating some, and I think they had agreed on some sort of an arrangement that they reduced to writing. My recollection is, although I could not testify to a single line in it, but my impression is that this in-eluded several things that affected that property and also this judgment.

‘ ‘ Q. But the purpose and object was to make Crosby whole? A,. Make them both whole.

‘ ‘ Q. And that was the interest Crosby had in it, making' him whole because the title failed? A. I could not say. They had a transaction between them and I presume that written agreement was the settlement.”

A foreclosure suit was brought byJGeorge W. Evans, and a sheriff’s deed, dated June thirteenth and recorded December 13', 1920, made pursuant to the judgment rendered in it, by which all thp interest in the lot of said Evans, the Baldridges, J. B. Johnson, the trustee in the defective Baldridge deed of trust, M. L. Middleton, the beneficiary of the second deed of trust given by the Bald-ridges, and Webster Edwards, the trustee named in it, were conveyed to the defendants Mary P. and Susie E. Evans.

But prior to the said sheriff’s sale, and on March 31, 1910, J. B. Johnson, as trustee in the deed of trust made by the Crosbys to secure their purchase money notes, had conveyed their interest in the lot to defendants, pursuant to a sale by him on account of defaidts in the payment of some of the notes. This sale occurred subsequent to the aforesaid judgment of foreclosure, but before the levy on May 11, 1910, thereunder, and, of course, before the sale on June 11th. Whether Crosby defaulted in his payments in consequence of his imperfect title and as a step' toward having it made perfect, or because he had decided to abandon the property by reason of domestic troubles, or for some other reason, is an issue about which there is conflicting evidence.

After defendants had acquired title by their purchases at the sale under the Crosby deed of trust and at the sheriff’s sale, and on the .very day of the latter sale, they conveyed the lot by warranty deed to Allie Gray, who took possession, Crosby being then at work elsewhere and not in occupancy.

Crosby, having been dispossessed, filed the present action for an alleged breach of the covenant of seizin, obtained a verdict for the three hundred dollars he had paid on the price of the lot and one hundred and eighteen dollars interest; but pursuant to a motion filed by defendants, the verdict was set aside and a, new trial granted with no reason given for the ruling. Plaintiff appealed! from the order sustaining said motion.

The defenses are these: first, a denial of all the averments of the petition, except the allegation of the execution by defendants of the deed to plaintiff and his wife, containing the aforesaid statutory covenants; second, that the deed of trust given back by plaintiff and his wife to J. B. Johnson as trustee for plaintiffs, contained the same statutory covenants as did defendants’ deed to plaintiff and his wife; that plaintiff took possession under the latter deed June 10,1907, and continued in possession to March 21, 1910; that plaintiff’s title was purchased on the last date by defendants at the sale by the trustee in consequence of plaintiff’s default, and he thereupon ceased to have any interest in the premises, and is not a proper party to sue in this cause; third, that prior to any eviction of plaintiff, defendants, after the execution of their deed to him, containing the covenants sued on, acquired all the title not passed to him by defendants’ said deed, which title inured to and vested in plaintiff as soon as it was acquired by defendants, by virtue of their said deed and covenant of warranty to him, and he sustained no damage by any outstanding title or incumbrance. '

A replication was filed which, in two paragraphs, set up, in effect, that the purchases by defendants at the two foreclosure sales aforesaid, one by the sheriff under a judgment and the other by the trustee in the deed of trust given by plaintiff and. wife, were made by defendants under an agreement entered into by them'through their agent George "W. Evans, to buy for plaintiff’s benefit and to make perfect his title, and not to buy for themselves; that they paid no consideration nor gave the plaintiff any credit on his secured notes, and that in disregard of their agreement, defendants conveyed the premises to Allie Gray.

The appeal went to the Springfield Court of Appeals where the judges disagreed, and one of them dissented. and caused the case to be sent here, for the reason that the decision of the majority was in conflict with the decision of this court in Cartwright v. Culver, 74 Mo. 179; Hunt v. Marsh, 80 Mo. 396, and Carter v. Butler, 264 Mo. 306.

The error assigned for permitting plaintiff to introduce further evidence after he had rested and a demurrer had been argued to the case as then made, is without merit, that being a matter within the trial court’s discretion. [St. Louis Pub. Schools v. Risley’s Heirs, 40 Mo. 356, 370.]

Uncertain as is the evidence we have set out regarding the agreement between George W. Evans and Crosby, it tends to prove that, as defendants-’ agent, Evans agreed in writing with Crosby not only to have the first Baldridge deed of trust reformed and foreclosed by a decree of court, but also to have the lot sold by the trustee in the Crosby deed of trust, in order that defendants might make good their convenants to Crosby; or if the scheme failed, then to make him whole in some other way; perhaps by conveying to him land in Dallas County. Such an agreement must have included, either expressly or impliedly, an understanding by defendants to hold the property for Crosby or convey to him, if they bought at the sales. It could not have meant that they should buy for their own benefit and afterwards sell to some one else, because in so doing they would extinguish, instead of perfect; his title. The court took that view of the arrangement in instructing the jury to return a verdict for plaintiff, if they found the agreement was made; and one instruction given for defendants explicitly required the jury to find, as essential to such a verdict, that it had been agreed Evans would buy the property under the deed of the trust given by plaintiff, perfect the title and then convey to plaintiff. The instructions touching the foreclosure are sound, unless a verdict for defendants should have been directed. That this ought to have been done is urged for several reasons, which will he considered.

Defendants say plaintiff is estopped to assert a right of action on the covenants in-their deed to him and his wife, by the like covenants in the deed of trust the latter parties gave back. Otherwise stated, defendants say the covenants in the first deed ran with the land back to them or their trustee by force of said deed of trust, and this instrument having been foreclosed by a sale where defendants were the purchasers, the action for covenant broken enured to them, or rather was extinguished. But this is not the law when the second deed relied on to extinguish the right of action for a breach of! the covenants in a prior one, is a mortgage or deed of trust g?.ven hy a vendee to secure to his vendor the price of the land purchased. [Connor v. Eddy, 25 Mo. 72; Haynes v. Stevens, 11 N. H. 28; Smith v. Cannell, 32 Maine, 123; Sumner v. Barnard, 12 Met. 459; Hubbard v. Norton, 10 Conn. 422; Randall v. Lower, 98 Ind. 255; Resser v. Carney, 54 N. W. 89; Rawle, Covenants of Title (3 Ed.), sec. 266.] Some of those cases, including the Missouri one, decide the very question, and the others lay down principles which would compel the like ruling where a purchase-money mortgage is relied on to annul covenants in the deed of the vendor. We quote from Connor v. Eddy, 25 Mo. l. c. 75, 76:

“The plaintiff, having given a deed of trust on the lot, with covenants for title to secure the purchase money ... is not estopped by his covenants from availing himself' of any relief to which he would otherwise be entitled by virtue of the vendor’s covenants to himself. This is the law with regard to mortgages with warranty of title given to secure the purchase money of the land mortgaged, and it is as applicable, if not more so, to deeds of trust for the same purpose. The law of estoppel has no application in such cases. [Rawle on Oov. 348.]”

Whether supported hy authority or not, and we have found none which supports it, the notion is unsound that a vendee who secures payment to his vendor of the price of the purchased property by mortgaging1 back with covenants the estate granted, thereby releases the vendor from liability on his similar covenants. Not one of the many cases cited by defendants for the doctrine is in point. That of Devin v. Hendershott, 32 Iowa, 192, decided the mortgagee could maintain an action against one who was the grantor of the mortgagor on the covenants in the deed of said grantor; which is no more than to say the covenants ran with the land to the mortgagee; In Silverman v. Loomis, 104 Ill. 137, the cancellation of the defendant’s covenants was not in consequence of a mortgage having been given for the purchase money. A man named Runyan had conveyed the premises in question, which were mortgaged at the time, to the defendant Loomis, with a warranty against incumbrances. Loomis conveyed back subsequent^ with the like covenant. Runyan then sold to Silverman, who was compelled to pay the mortgage and sued Loomis on the covenant in Loomis’s deed back to Runyan. The court held the conveyance and reconveyance by Runyan to Loomis mutually cancelled the covenants, and that Silver-man, as grantee of Runyan, could not sue on a covenant on which his grantor could not sue. The case of Brown v. Metz, 35 Ill. 339, is especially stressed, but affords defendants no help. Brown and two other men had made a deed with covenants and had taken back from the grantee a deed of trust, which was foreclosed and Brown bought the property, thereby acquiring the full estate he and his eo-grantors had conveyed. He then conveyed it by quit-claim deed to a grantee who, by a similar deed, conveyed to another grantee. Brown was sued on the covenants in the original deed of himself and his co-owners. The court held the estate originally granted ceased in Brown when he acquired title the second time and the covenants in the first deed did not run to his later grantee or assigns, as no interest created by his first grant passed by the second one, for the covenants in the first deed to run with. The facts at bar are different —would have the same effect if Allie Gray was suing defendants on the covenants in their deed to plaintiff. A Georgia ease is cited wherein the defendants, who 'were virtually mortgagees of certain premises, were held not liable on the covenants in a deed they gave back by way of release to their grantor (in a deed intended to be a security and not an absolute conveyance) to a subsequent grantee of said mortgagor. The mortgagor could not sue on said covenants, because they were the same as he had made to the mortgagees; and, therefore, his grantee could not. [Willis v. McGough & Co., 56 Ga. 198.] A case in Iowa, also cited by defendants-as apropos, was- a.n action by a husband on the covenants in a deed made to him by his wife without consideration, he having by a deed with similar covenants reconveyed to her, which the court held released her from liability to him on her covenants. [Carroll v. Carroll, 113 Iowa, 419.] We see no pertinency in that case to the doctrine in question. In Brown v. Staples, 28 Maine, 497, a remark is made to the effect that a second covenant acts as an estoppel against an action on a prior one, or as a release of damages; but the opinion' said also the doctrine of mutual cancellation does not apply-so- as to make the covenants in a purchase-money mortgage annul those in the deed granting to the mortgagor. Why should it? The covenant of indefeasible seizin, the one in suit, runs with the land, it is true, when the deed containing it passes any interest to carry the covenant along; the purpose being to enable a remote grantee substantially damaged by a breach to recover his damages. [Allen v. Kennedy, 91 Mo. 324, 329.] But a mortgagee cannot be damaged by a breach of his own covenant, though he may be by the outstanding, title or incumbrance covenanted against; but that is beside the question in hand. In the instance of a grantee who gives back a purchase-money mortgage or deed of trust, and suffers from his grantor’s broken covenant, there is no sound reason for the view that -the mortgage to his grantor carried back to the latter the right to sue on the covenants in the original deed or cancelled those covenants. We hold plaintiff’s deed of trust had no such effect; and hold, also, that he neither estopped himself thereby to sue on the covenants when a substantial breach occurred which damaged him, nor assigned to defendants the right to sue, for they could not sue themselves. As for the covenants running to Allie Gray as defendants’ grantee, suffice to say he was not damaged by the breach, as the incumbrance. had been cleared off before he acquired title.

Another defense is that defendants’ purchase of the property at the foreclosure sale by the trustee in the purchase-money deed of trust given by plaintiff and wife, cut .off redress to plaintiff; and this for the reason that plaintiff was in possession of the premises, and had no right to refuse to pay his notes given for the price, simply because of the . existence of incumbrances when he purchased. The legal proposition invoked is correct, for were the law otherwise, a vendee might evade ijayment of the price and perhaps never be disturbed. .[Cartwright v. Culver, 74 Mo. 179.] The same rule applies when the breach consists of a prior incumbrance, for it may never be enforced; though the vendee is permitted to clear it if he pleases, and to recover thereupon from his covenantor, the breach being then substantial. But plaintiff had not discharged the prior incumbrances when the trustee’s sale occurred, and it is argued not only that he lost his right of action on the covenant by the sale, but also that he was never damaged by the breach, since his estate passed from him, not as a result of the existence of the incumbrances, but in consequence of his own default in not meeting his notes. Plaintiff cites Resser v. Carney, supra; Haynes v. Stevens, 11 N. H. 28, and Wilder v. Davenport’s Est., 5 Atl. (Vt.) 753, as opposed to the doctrine that foreclosure of a purchase-money mortgage or deed of trust will defeat the mortgagor’s right of action against his vendor for a broken covenant, and defendants cite Wade v. Comstock, 11 Ohio St. 71, that it will. We will spend no time examining those oases or their supposed contrary rules; for we are sure no court would hold a mortgagor lost his right if the default and sale occurred, as it did, in the case at bar, according to the jury’s finding, pursuant to a scheme arranged between the mortgagor and the mortgagee to have the mortgage foreclosed in order to cure a fault in the mortgagor’s title for which the mortgagees were liable on their covenant. . A default in the performance of some 'condition of the mortgage was necessary to a valid sale by the trustee; and as Crosby’s only default was in not paying the notes secured, it must have been relied upon to authorize the foreclosure sale.

If defendants, immediately following their purchase at the trustee’s sale on March 21, 1910, had conveyed the lot to plaintiff as agreed, the perfect title they subsequently acquired by the sheriff’s sale on June 11th would have inured to plaintiff under defendants] warranty of title.; or if they had conveyed to him, instead of Allie G-ray, after the sheriff’s sale, their undertaking would have been fulfilled. But defendants contend the title thus acquired passed immediately to plaintiff, despite the deed to Allie Cray, as plaintiff’was still in possession and it was through his fault in failing to record his deed that defendants’ deed to Allie Cray, when recorded, vested the title in him as against plaintiff (citing Sec. 2871, R. S. 1909, and cases.) Defendants must be presumed, in deference to the verdict, to have agreed that any purchase made by them or their agent at either sale or both, should be for the benefit of plaintiff and a step toward making his title good. Their conveyance to. Cray was a violation of this agreement; and moreover, would have taken precedence of and prevailed over plaintiff’s title had his deed been of record, unless Cray had notice of the arrangement between plaintiff and defendants, and the contrary theory ran through the trial. This is true because, as against Cray, plaintiff’s title would have been cut off by the trustee’s sale. By conveying tb Cray, defendants made it impossible for plaintiff to obtain the good title covenanted to him, and left him no relief for the purchase money he had paid after Gray had evicted him, except an action on the covenants in defendants’ deed to him.

The replication is said to he a new cause of action— a departure from the petition, which should have been stricken out on a motion filed to have that done. The defense set up in the answer is that plaintiff lost his right to sue on the covenants as the result of the .trustee’s sale. The reply stated the agreement between the parties to have the sale take place -as a way to perfect plaintiff’s title, seeking no relief on the agreement as another and distinct cause of action, but instead, pleading it in confession and avoidance of the defense set up in the answer, that plaintiff had lost his right to sue on the covenants as the result of the trustee’s sale; a proper procedure unless the agreement was a contract which was substituted for the covenants. [Auchincloss v. Frank, 17 Mo. App. 41; Chemical Co. v. Lackawana Line, 70 Mo. App. 274.] If the agreement stands in the way of plaintiff’s maintaining .an action on the covenants in defendants’ deed, it is because if it was made and not kept by defendants, plaintiff was confined for redress to an action on the later agreement and could no longer look to. the covenants. The agreement and the covenants appear to be entirely consistent, and this being true, the latter were not superseded, as the contract between the parties, by the former. [3 Page, Contracts, sec. 1340, p. 598; Rhoades v. Railway, 49 W. Va. 494.] The plan was devised, not to take the place of the covenants, but to make them good, and by clearing up' the title, prevent any cause of action from accruing on them.

Perhaps an irregularity occurred in summoning five talesmen for the jury panel, but if so, the case ought not to turn on that ruling, it being clear no prejudice to defendants resulted. The very point has been ruled. [State v. Sansone, 116 Mo. 1, 9.]

The court erred in instructing the jury, if they found the issues for plaintiff, to allow him interest on the payments he had made on the purchase price from the date of payment. He was entitled to interest only from the date he was evicted, as he had been meanwhile in possession and enjoyment of the property and it does not appear plaintiff was answerable over to any one for the rents and profits. [Hutchins v. Roundtree, 77 Mo. 500.] The true interest to be recovered by plaintiff-may be computed from the date of eviction, and if plaintiff will remit the excess, the order sustaining the motion for a new trial should be set aside, the verdict reinstated, the remittitur entered, and judgment rendered for the right amount.

The cause is remanded to the circuit court with directions to proceed accordingly; the costs of the appeal should be taxed against the respondents.

All concur.


source: Caselaw Access Project

author: BLAIR, P. J.

license: Public Domain

text:
    HAYTI DEVELOPMENT COMPANY, Appellant, v. W. W. CLAYTON et al.
    Division One,
    March 2, 1920.
    1. QUIETING TITLE: Under Old Section 650: Effect of Judgment. Section 650, Revised Statutes 1899, contained no authority for a judgment affecting the title' of persons not parties or privies. It did not authorize a judgment transferring the title of defendants to plaintiff; all that a decree in a suit under it could do, if properly brought, was to idebar and estop the defendants, whether unknown heirs or devisees of a supposed record owner, and those in privity and claiming under them by subsequent deed or right, from setting 'up, as against the plaintiff and those claiming under her, the title in judgment in that suit. And especially is that the effect of such judgment, if the petition did not pray that defendants’ title be transferred to plaintiff. All such a suit, under that statute, could decide was that the defendants had no title and that plaintiff had full title; the judgment did not vest in plaintiff a record title of the ancestor of the unknown heirs.
    2. ADVERSE POSSESSION: Conflict in Testimony. Where plaintiff in the suit to quiet title and ejectment had no record title, and the evidence as to whether it used the property in connection with other property possessed by it to create title by adverse possession was in dispute, the finding of the trial court settles the question on appeal.
    3. -: Laches. The defense of laches is only applied to defeat a claim for equitable relief. Laches is not a bar to a claim made under a legal title.
    .Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge.

    Appirmed.

      Everett Reeves and Gallivan & Finch for appellant.
    (1) Where a common source of title is established by agreement or proof, plaintiff need not go back of such common source in making Iris case. Harrison Machine Works v. Bowers, 200 Mo. 236',- Brown v. Brown, 45 Mo. 412; Fellows v. Wise, 49 Mo. 350; Butcher y. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 545; Smith y. Lindsey. 89 Mo. 76; Finch v. Ullman, 105 Mo. 263; Worley v. Hicks, 161 Mo. 384; Charles v. White, 214 Mo. 211; Grattan v. Holliday-Klotz L. & L. Co., 189 Mo. 322, (2) The defense of laches and estoppel is only applied to defeat a claim for equitable relief. It is no bar to a claim made under a legal title. Kellogg v. Moore, 271 Mo. 189; Dunavant v. Cooperage Co., 188 Mo. App. .94; Haarstick v. Gabriel, 200 Mo. 249; Terry v. Groves, 258 Mo. 478; Lumber Co. v. McCaible, 220 Mo. 182; Hayes v. Scholl, ‘229 Mo. 124; Chilton v. Nichie, 261 Mo. 243. (3) Plaintiff is not estopped by the acts or conduct of Laura Oates after the date of the deed of trust under which plaintiff claims title. McShane v. City of Moberly, 79 Mo. 41; Snyder v. Chicago, Sante Fe & Cal. Ry. Co., 112'Mo. 527; Zoll v. Carnahan, 83 Mo. 43; 16 Cyc. 779'-80. ■ (4) The defendants’ grantor, having entered into possession of the premises in question, under plaintiff’s grantor, cannot claim possession adverse to plaintiff, until some notorious and unequivocal act of exclusion occurred to give notice of an adverse claim. 1 Cyc. 1062; Lumber Co. v. Craig, 248 333; Realty Co. v. Realty Co., 245 Mo. 436; McCune v. Goodwilie, 204 Mo. 339. (5) Possession of a part of the east half of the southwest quarter of Section 33, Township-19, Range 12, under color of title to the whole tract and exercising; the usual acts of ownership over the same, was possession of the whole. Sec. 1882, R,' for more than ten years by plaintiff, and those under whom it claims, vested the legal title to the whole tract in plaintiff. Truitt v. Bender, 193 S. W. 838; Nall v Conover, 223 Mo. 477; Plaster v. Grabeil, 160 Mo, 669; Crispen v. Hannavan, 50 Mo. 586; Pharis v. Jones, 122 Mo. 125.

      R. L. Ward for respondent.
    (1) Under Sec. 2535-, R. S. 1909; to quiet title, it is the duty of the trial court to enter a judgment on behalf of the party showing- the better title; and a title where one party is in the actual, honest possession, especially if that party is the defendant, should be quieted as; between plaintiff and defendant, in defendant. Dowd v. Bond, 199 S. W. 956. (2) Plaintiff must make a primafacie case showing’ the title in itself before it can become entitled to a decree declaring defendant’s claim'invalid. Heagy v. Miller, 187 S. W. 890.; Senter v. Lumber Co., 255 Mo. 602'.; Orchard v. Mining Co. 184 S. W. 1138; Skillman v. Clardy, 256 Mo. 297; Wheeler v. Reynolds Land' Co., 193 Mo. 279. (3) Plaintiff not showing ten years actual possession of the 80 acre tract of land which this forty is a part; its failing to show the “usual acts of ownership” of this forty acres in question; and failing to show this forty was used in connection with the forty acres in possession as one farm or one tract, fails to prove title by limitation. Sec. 1882-, R. S. 1909; Stone v. Perkins, 2Í7Mo. 586; Morg’an v.. Potts, 124 Mo. App. 379; Nall v. Conover, 223 Mo. 495. (4) Plaintiff having neither title by possession nor paper title, is driven to try to connect title by a decree determining title between Laura Oates and the unknown heirs of Tobias Bentley. But “a judgment, under Sec. 2535, R. S. 1909, quieting title does not have the effect of transferring to plaintiff, the title which the defendant therein previously held.” Dunavant v. Pemiscot Land &• Co., 188 Mo. App. 90; Powell v. Crowe, 204 Mo. 481; Weed Sewing Machine Co. v. Baker, 40 Fed. 56; 33 Cyc. 1384. (5) A party sought to be concluded by a former judgment must have been a party to both suits or actions. Dibert v. D’Arcv, 248 Mo. 63.7; Grimes v. Miller, 221 Mo. 636; Woods v. Smith, 193 Mo. 484; Pierce v. Pierce, 139 Mo. App. 419; Ives v. Kimlin, 140 Mo. App. 293; Abington v. Townsend, 271 Mo. 610.
   BLAIR, P. J.

The petition contains two counts; one under Section 2535, Revised Statutes 1909, to quiet title, and one in ejectment. The land involved is the northeast quarter of the southwest quarter of Section 33, Township 19, Range 12, in Pemiscot County. The answer admits that respondents claim to own the land; avers they are and have been in possession at all times mentioned in the petition; avers appellant has no title, but that respondents own the land in fee simple, and prays that the title be ascertained and determined. A second count sets up the ten-year Statute of Limitation, and a third count pleads laches ■ and estoppel and prays a decree of title in respondents and for general relief. The court found the issues for respondents, and adjudged that appellant had no title or interest in the land, and that respondents are the owners in fee thereof. This appeal was taken from' that judgement. Other facts necessary to a determination of the case appear in connection with the discussion of the questions to which they are relevant. 1

I. Appellant attempted to show record title in itself. To this end it offered evidence which it contends proves that Tobias P. Bentley secured the record title November 17, 1857, by means of a warranty deed to him from John S. "Wheeler and wife. Appellant claims, through mesne conveyances, under a trustee’s deed under sale under a trust deed executed by Laura M' 0ates’ May 15> 1907. So far as concerns the question now being discussed, the record title of Laura M. Oates,'and, therefore, the record title of appellant, depends upon a decree in a suit to quiet title which Laura M. Oates instituted April 6, 1907, against the unknown heirs and devisees of Tobias P. Bentley. The allegations of the petition in that suit brought it within Section 650, Revised Statutes 1899, as it then stood. That .section authorized suits “to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property. ’ ’ The prayer of the petition in that case was that “the court will ascertain and determine the estate, title and interest of this plaintiff and said unknown defendants in and to said real estate, and that the court will define and adjudge and decree that plaintiff is the owner of said real estate in fee simple, absolute, and that said defendants, nor none of them, have no right, title, claim or interest in or to the same or any part thereof, and for such other,” etc. The order of publication, whereby service was had upon the unknown heirs and devisees of Tobias P. Bently, was peculiar. It notified them that the “object and general nature” of the suit was “to enforce and establish a lawful right, claim and demand to and against certain real estate, property within the jurisdiction of said court, to-wit, an action to try, ascertain and determine the respective parties plaintiff and defendants herein and to the following described,” etc. Eespondents in this case do not claim under the heirs and devisees of Bentley, nor under Laura M. Oates. The judgment in Oates v. The Unknown Heirs and Devisees of Tobias P. Bentley did not transfer the Bentley title to Laura M. Oates. It could not do so. The statute (Sec. 650, E. S. 18091), authorized no such relief; the petition prayed for no such relief, and the notice of publication did not advise defendants that a decree, having any such effect was being sought. That decree, if otherwise valid, debarred and estopped the unknown heirs and devisees of Bentley and those in privity and claiming under them by subsequent deed or right, from setting up, as against Laura M. Oates and those claiming under her, the title in judgment in that suit. It did not and could not affect the right of one neither party nor privy. There were no special equities authorizing either, an order for a conveyance or a decree revesting" title, or the like. It was a plain suit under the then statute, not to secure the Bentley title, but to secure a decree that the Bentleys had no title and that Laura M. Oates already had full title. In Lockwood v. Meade, 71 Kan. 1. c. 741, answering a like contention, the court said: “But an ordinary decree quieting title against a defendant does not add his claim to that already possessed by the plaintiff. It effects no affirmative increase in the plaintiff’s right. . It strengthens his title only in that it cuts off a source of attack. It brings to him no new and independent right which he may assert against, a stranger to the suit. It adjudges that the defendant has no claim to the property— not that a claim which he has must be deemed to- be transferred to the plaintiff. [Weed Sewing-machine Co. v. Baker, 40 Fed. 56; Harrigan v. Mowry, 84 Cal. 456.]” Other decisions are to the same effect. [Dunavant v. Cooperage Co., 188 Mo. App. l. c. 90, citing 32 Cyc. 1384; Vandergrift v. Shortridge, 181 Ala. l. c. 278; Elwert v. Reid, 70 Ore. 318.] Particularly is this true of a suit to quiet title under Section 650, Revised Statutes, 1899, since “there is no authority in that section for the court to do more than to ascertain and determine, define and adjudge the title, interest and estate of the parties severally in and to such real estate.” [Powell v. Crow, 204 Mo. l. c. 486.] It has -been held (Wheeler v. Ballard, 91 Kan. l. c. 361) tlia-t as between the parties the difference between a decree destroying a defendant’s title for plaintiff’s-benefit and one transferring defendant’s title to plaintiff is of no considerable importance; but the court was careful to point out, citing the Lockwood-Meade case, that it spoke only of a case in which ‘‘ other parties are not involved.” In this case respondents come within the term “other parties” as used in' that decision. Therefore, though it be conceded Bentley had the record title from Wheeler, appellant is not, on this phase of the case, aided thereby, since it has proved conclusively it has not secured the Bentley title; has shown it has no record title; and it makes no other claim of record title’ as we read the brief.

II. Appellant claims title by adverse possession. • It offered in evidence certain deeds which it relied upon as a chain constituting color of title. The first of these is dated in 188-3. This is a sheriff’s deed to Schult. Next, a deed from Schult and wife to E. Gt Rankin, dated January 1, 1884; deed from Rankin to T. P. -®°^nS011> dated April 8, 1884; deed from T. P. 'Robinson to Schult, April 17, 1885; deed from Schult and wife to William Tarkington, dated November 3, 1897, and a deed from William Tarkington to Laura M. Oates, dated October 23,1905. Respondents and their grantors have been in possession since the fall of 1907. This suit was brought in 1914.

(a) As already pointed out, the Bentley decree, relied upon also in this connection, does not affect respondents. They were not parties, do not claim under any of the parties, and their interest was not in litigation or affected in any way.

(b) The oral evidence was undeniably conflicting upon the question of adverse possession of appellant’s grantors. It is indisputable that appellant’s grantors never had actual adverse possession of the requisite character of the land in suit for any ten-year period. Whether they used the property in such connection with other property of which they may have had such possession was in dispute. In such circumstances the finding of the trial court for respondents settles that question against appellant.

III. It is argued respondents went into possession in 1907 under Laura M. Oates. Appellant’s evidence tends to show one George was the tenant of Laura M. Oates and sold out to Clayton, It is claimed Clayton thereby became the tenant of Oates and his possession was and is, therefore, not adverse. Respondents ’ evidence tended to disprove the contention of appellant. The finding of the court settled the conflict against appellant, and binds u,s.

IV. We agree with the appellant that the defense of laches was not available to respondents in this case (Chilton v. Nickey, 261 Mo. l. c. 243) and that appellant was not called upon to go back to the common source of title. In view of tbe general finding of tlie court, and tbe absence of instructions asked or given, tbe questions already discussed dispose of tbe case and render unimportant tbe matters just mentioned. There is a correct legal theory, supported by substantial evidence, which justifies tbe finding against appellant’s claim of title. No question concerning tbe admission or rejection of evidence or other procedural errors are urged in this court.

This disposes of all the questions presented by the brief. Tbe judgment is affirmed.

All concur.


author: BAGLAND, C.

text:
    J. B. SIMPSON, Appellant, v. HARRY J. STEWART et al.
    Division One,
    March 2, 1920.
    1. LOST CORNERS: Conflict Between Statute and Land Office Rule. If the statute pertaining to the re-establishment of decayed corners of surveyed lands (Sec. 11322, R. S. 1909) operated to change the boundaries of United States surveys, so that one who purchased land according to those surveys would be divested of a portion of it, and another who did not purchase such portion would be invested with it, the statute, in so far as. it conflicts with the rules of the General Land Office pertaining to the re-establishment of lost corners, would be void; but the statute can have no application where the original boundaries are known or can be ascertained, for before it can be invoked it must appear that the corner is not merely obliterated, but is lost — that is, that its locus cannot be determined either from the plat and field notes of the original survey, or by any competent extrinsic evidence.
    2. -: ->: Statute Paramount. The rule of the General Land Office is controlling in every instance in which it is sought to re-establish a lost internal section corner on the public lands of the United States; but as to lands within the State whose titles have passed to private owners and the jurisdiction of the U. S. Government in reference thereto has ceased, the statute is, in a sense, a rule of evidence, and, in cases in which it is applicable, is obligatory upon the courts.

      Appeal from New Madrid Circuit Court.- — Hon. Sterling H. McCarty, Judge.
    Affirmed.

      Gallivan & Finch for appellant.
    (1) The surveying, and sectionizing of the public lands was under Government supervision and control and any State law which would change the corner or produce a different result is inoperative and void. Knight v. Elliott, 57 M3o. 326; Frazier v. Bryant, 59- Mo. 124; Lemmon v. Hartsock, 80 Mo. 18. (2) Sec. 11322, E. S. 1909, will not establish a lost comer at the place originally1 established and will produce a different result and is therefore inoperative. Bule 56, General Land Office; Cases supra; Major v. Watson, 73 Mo. 664. (3) Where there is no substantial evidence of the location of a lost comer it is a lost or destroyed corner. (4) The 'court having ignored both the state statute and the rules of the General Land Office the finding cannot stand.

      Riley & Riley for respondent.
    (1) Section 11322i‘is not in conflict with the laws of the United States or the rules of the Land Office on the subject of lost section corners. Frazier v. Bryant, 59 Mo. 132; Clark v. McAtee, 227 Mo. 185. (2) The proof in this case shows that the lost corner was found and that it was at the point on the line running south from the northwest comer of Section 27, which places the comer at the places where the witnesses Steel and Bobbins say it is.
   BAGLAND, C.

This is an action at law, to quiet title and in ejectment. Both counts of the petition are conventional. The land is described as a strip off of the west side of Section Thirty-four, Township Twenty-four, Range Thirteen, New Madrid County, Missouri, in the shape of a triangle about eighty rods wide at the north end and running to a point at the south end of said section. The answer is a general denial. The controversy grows out of a dispute as to the location of the boundary line between Sections Thirty-four, and Thirty-three,Township Twenty-four, Range Thirteen. The plaintiff owns Section Thirty-four: ¡and the defendant Section Thirty-three. If the boundary is where plaintiff claims, that it is, the land in controversy is in Section Thirty-four and consequently belongs to him; otherwise, it is in Section Thirty-three and belongs to defendants. The uncertainty existing as to the location of the line that forms the east boundary of the one and the west boundary of the other of these sections, results from the inability of the parties to find the Government corner between the north ends. No visible evidence remains of the work of the original surveyor in establishing it, nor has its situs been preserved by subsequent surveys or otherwise. It cannot be located from the field notes, nor by extrinsic evidence. While there was some evidence offered by the defendants touching the identification of a certain elm tree as one of the witness trees referred to in the field notes, it was of such a vague and inconclusive character as not to amount’ to proof. So that plaintiff insists, and defendants in effect concede, that the corner is not merely obliterated, hut is lost and must he re-established.

Rule 56 of the Rules of the General Land Office o'f the United States, revision of June 1, 1909, relating to the re-establishment of lost comers, provides: “When a number of corners are missing on all sides of the one sought to be re-established, the entire distance must, of course, be remeasured between the nearest existing recognized corners, both north and south, and east and west, in accordance with the rule laid down, and the new corner re-established by proportionate measurement.”' Section 11322, Revised Statutes, 1909, contains, among others, this provision: “When several adjacent corners are decayed, it shall be legal to commence at any two of the nearest township, section or quarter-section corners to the corner sought, and in transverse directions therefrom, and run in the direction thereof, on the general course of lines in the township' in which the survey is to be made, until the lines intersect, always, however, taking into consideration the fallings of the east and west lines, which point pf intersection shall be the legal corner.” The nearest known corners to the missing corner in question are the northeast corner of Section Thirty-four and the quarter section corner between sections Thirty and Thirty-one, on the east and west line, and the northwest corner of Section Twenty-seven and the southwest corner of Section Thirty-four, on the north and south line. At the instance of plaintiff, Murray and Wade Kochtitzky, two practical surveyors, following the rule prescribed by the General Land Office, located the lost corner at a point 82.27% chains north of the southwest corner of Section Thirty-four and 78.83 chains east of the northeast corner of said section. They both testified that, had they followed the statutory rule they would have located the comer about five chains east of the point at which they did place it. Otto Kochtitzky, a civil engineer and surveyor, testifying for plaintiff somewhat in the character of an expert as to the proper method of relocating lost corners, stated in effect that if the statutory rule were followed the missing corner1 would be placed about five chains east of where Murray located it. Steele, the county surveyor of New Madrid County, and Robbins, a practical surveyor, at the request of defendants, following methods of their own, which did not conform to either the statute or the rule of the Land Office, located the corner 4 chains and 60 links east of where Murray located it. Robbins testified that, if the method adopted by Murray was the proper one, the comer should be re-established at the point the latter fixed. Steele tacitly agreed to the same thing*. The triangular piece of land, lying between the lines drawn from Murray’s corner and Steele’s comer, respectively, to the southwest corner of Section Thirty-four, is the land in dispute. The defendants are in possession.

The case was tried to the court. The finding and judgment were for defendants and plaintiff appeals.

At the request of the parties the court gave a number of declarations of law, and it is the giving of those asked by defendants of which appellant predicates error. The facts for all practical purposes stand conceded:, viz: Mjurray correctly re-established the comer according to the Land Office rule; Steele’s relocation is the one that would have resulted from the application of the statutory rule. The question that is decisive of the case and of this appeal is, which rule on these facts is controlling? It would be futile, therefore, to take up in detail for consideration the correctness of the court’s rulings in respect to the declarations of law. The record as a whole clearly presents the one controlling question of law in the case.

I. It is appellant’s contention that the statute in question, in so far as it conflicts with the rules of the General Land Office is' void. If the statutes operated to change the boundaries of United States surveys, so that one man who purchased land according to Government survey would be thereby divested of a portion an<^ ail°ttier who did not purchase such portion would be invested with it, the contention would be sound. [Knight v. Elliott, 57 Mo. 317, 326; Lemmon v. Hartsook, 80 Mo. 13, 19.] But the statute can have no application where the original boundaries are known or can be ascertained. Before it can be invoked, it must appear that a comer is not merely obliterated, but lost, that is, that its locus cannot be determined either from the plat and field notes of the original survey, or by any competent extrinsic, evidence. The rule of the Land Office under consideration is likewise applicable only in. the case of a lost comer. The method it prescribes is not the method employed by the surveyor in originally establishing such a corner;; it is not merely such a retracing of his step's as would indubitably lead to the locus sought. There is not the slightest ground for asserting that the rule, any more than the statute, will determine the exact point at which a missing corner was originally located. Both were adopted as a means of reestablishing lost internal section comers, and, while the original situs can be ascertained by neither,- an approximation thereof according to the general course of the lines of the township' can be made by the more or less arbitrary rule prescribed by each, though the results reached by the several applications of the two rules would not in all cases be the same. • That the rule of the General Land Office is controlling in every instance where it is sought to re-establish a lost internal section corner bn the public lands of the United States is beyond question. ’But as to lands in this State, the titles to which have passed to private owners and the jurisdiction of the General Government in respect to the surveys thereof has ceased, the rule can be regarded as advisory only. The statute on the contrary is, in a sense, a rule of evidence prescribed by the Legislature and, in cases in which it is applicable, it is obligatory upon the courts to give it effect. It may be that the rule of the Land Office is more equitable, in that, it tends to more ratably apportion the land among the sections affected where the original boundaries cannot be ascertained, but, if so, it is a matter that addresses itself exclusively to the wisdom of the Legislature.

II. While the judginent of the trial court is in accord with the- views herein expressed, it is somewhat ambiguous. As it in effect establishes the north section corner between Sections Thirty-three’and Thirty-four, the finding therein recited should more specificonform t0 the conceded facts in proof, to the end that confusion and further dissention may, if possible, be avoided. The judgment will according be modified by striking out the words “described therein is a part of Section Thirty-three, Township- Twenty-four1 north, of Range Thirteen east, in New Madrid County, Missouri,” in the first paragraph thereof, where they occur between the words “land” and “and that,” and inserting in lieu thereof the following: “in controversy herein is not in Section Thirty-four as alleged in the petition, but is a strip off of the east side of Section Thirty-three, Township Twenty-four, Range Thirteen, in New Madrid County, Missouri, in the form of a triangle, being 4 chains and 60 links wide at the north end and running to a, point at the south end of said section,” and by striking out the word “therein,” where the same occurs in the fourth paragraph between the words “land” and “described,” and inserting in lieu thereof the word “hereinbefore.” As so modified the judgment is affirmed.

Brown and Small, GG., concur.

PER CURIAM: — The f oregoing opinion of Ragland, C., is adopted as the opinion of the court.

All of the judges concur.


author: SMALL, C.

text:
    HENRY C. KORNEMAN, Appellant, v. JOHN E. G. DAVIS et al.
    Division One,
    March 2, 1920.
    1. CONVEYANCE: Latent Ambiguity: Admissibility of Acts of Parties. When there is a latent ambiguity in the description of land as contained in the deed, the circumstances and situation of the parties and the construction they have put upon the deed by their acts, are admissible in evidence; but when the language of the deed contains no ambiguity, or when such language, applied to the subject-matter and circumstances, leaves no substantial doubt as to the property conveyed, then the acts of the parties under the deed are inadmissible.
    2. -: -: Quantity. An estimate of the land conveyed by a deed as “about thirty acres” is a part of the description, and mgy be used to ascertain the particular thing conveyed.

      3. -: -: Beneficent Acts of Grantor. Where a father conveyed thirty acres of land lying south of a creek, as a gift to a daughter, reserving a life estate to himself, the taking possession by the daughter of an adjoining four-acre tract lying east of the creek and his acquiescence therein, a gift of a small amount of money arising from the sale of logs therefrom and a failure of the father to object to her taking timber therefrom to build an ice-house, are to be regarded as other acts of kindness towards the daughter without regard to his or her legal rights, and not as an interpretation by conduct of the description of the land contained in the deed, and are not admissible to show that the four-acre tract was conveyed.
    4. PRACTICE: Finding of Facts. A statutory finding of facts should embrace all the material facts bearing on the issues involved, and should set them out in detail, and not merely state conclusions and inferences therefrom.
    Appeal from Clinton Circuit Court. — Hon. Alonzo D. Bu-rnes, Judge.
    Reversed and remanded*. ,

      W'. 8. Herndon, J. M. Johnson and Henri L. Warren for appellant.
    (1) Tlie solution of this controversy turns upon the construction of the deeds from Thomas P. Jones to his daughter and the subsequent deed in partition from the sheriff to plaintiff. In construing* the first mentioned deed, the primary task is to ascertain the true intention of the grantor, and unless there be found some ambiguity or uncertainty with rc-spect to the description of the land conveyed, resort cannot be had to parol evidence of statements and acts of the grantor to ascertain such intention. 2. Devlin on Real Estate (3 Ed.), p. 2025.; Long v. Timms, 107 Mo. 512:; Weissenfels v. Cdbel, 208 Mo. 515; 9 C. J. 158'; 17 Cyc. 618; Long v. Wagoner, 47 Mo. 178; Heady v. Hollman, 251 Mo. 633; Warne v. Sorge, 258 Mo. 165; 18 C. J. 262; Elsea v. Smith, 273* Mo. 396*; Eckle v. Ry-land, 256 Mo. 440; Howell v. Sherwood, 242 Mo. 536; O’Brien v. Ash, 169 Mo'. 283, (2) W)here the description of the land in the deed when considered in the light of the physical conditions of the subject-matter as referred to therein is open to two constructions — one clear, definite and certain, and the other ambiguous, indefinite and uncertain — the clear and definite meaning will be taken as expressive of the real intention of the grantor. 9 C. J. 152, 208 and note 77; Hubbard v. Whitehead, 221 Mo. 672; 1 Greenleaf on Evidence (16 Ed.), sec. 605 L; 18 C. J. 217. (3) Shoal Creek is a natural monument. It completely traversed the sixty-acre tract of the grantor. (4) Another rule of construction of a deed is a call for quantify. When others calls in a deed will not aid the court, then a call for quantity will be used to ascertain the true intention of the grantor before parol evidence .of his intention can be resorted to. Davis v. Hess, 103 Mo. 31; 9 C. J. 171, sec. 30; 9 C. J. 163, sec. 44 at p. 176, p. 228; Behert v. Myérs, 24Ó Mo. 58; Cole v. Mueller, .187 Mo. 638. (5) Considering the relationship of father and daughter, which existed between the grantor and grantee, the fact, if it be a fact, that the father allowed the daughter to take timber from the disputed tract for certain specific purposes would not constitute evidence of ownership or claim of ownership to ‘the disputed tract or of an intention to include it in the grant to his daughter. 18 C. J. 261 : Miller v. Miller, 91 Kan. 1; Davis v. Hardin, 1 Ky. L. 165 ; Hubbard v. Hubbard, 140 Mo. 305. .

      Wm. Henry and Frost S Frost for respondent.
    (1) If there is any doubt as to the meaning or1 application of the term “south of Shoal creek” as employed in the deeds, the meaning and application given by the parties who used them should prevail. Petley v. McElmurry, 201 Mo. 393: St. Louis Gaslight Co. v. City of St. Louis, 46 Mo. 121; Rose v. Corborating Co., 60 Mo. App. 32; Richardson v. C. & A. Rv. Co., 62 Mo. App. 5; Berncro v. Real Estate Co., 134 Mo. App. 299. Dobbins v. Edmonds, 18 Mo. App. 315; Morey'V. Peltz, 187 Mo. App. 663; Laclede Const. Co. v. Moss Tie Co., 185 Mo. 67; Pub. Co. v. McNichols, 170 Mo. 735. (2) Where all the parities have acted on a particular meaning of an agreement or contract there is no better mode of ascertaining the true meaning"! than by their acts. Union Depot Co; v. Ry. Co., 131 Mo. 305. (3) The suit for the partition of the lands of Thomas P. Jones and the proceedings and sale therein, did not have the effect to convey any title other than that which remained in his heirs after his death. Powell v. Powell, 267 Mo. 125; Jelley v. Lamar, 242 Mo. 50; Whitsett v. Whitsett, 159' Mo. 25; Propes v. Propes, 171 Mo. 416.
   SMALL, C.

Appeal from the Clinton County Circuit Court. Suit in ejectment for four and a fraction acres of land. Judgment for defendants. Plaintiff appeals. Plaintiff claims title by sheriff’s deed under decree in partition of certain lands in said county belonging to the widow and heirs of Thomas Jones, deceased. He died on the 9th of December, 1915, intestate, leaving surviving him, his widow, Nancy T. Jones, his four sons, William M., James L., Charles G-. and Harrison Jones, and two daughters, Susan B. Kennedy and Zelleta Heflin. On March 12, 1914, in consideration of one dollar and love and effeetion, said Thomas Jones executed a warranty deed conveying to his daughter Susan B. Kennedy land in said deed described, as follows:

“The following described lots, tracts or parcels of land, lying, being and situate in the County of Clinton and State of Missouri, to-wit: That part of the east half of the south east quarter of Section Eleven, Township! Fifty-six, of Range Thirty, lying south of Shoal Creek, containing about thirty acres.

“Recital, The grantors herein reserving unto themselves or the successors thereof a life estate in the lands hereby granted, and it is further provided that this conveyance is made on the express condition that if the grantee herein attempts to alien, sell or convey the lands granted or place any lien thereon during the life of the grantors herein, or either of them, without their written consent duly acknowledged before a notary public the lands herein shall revert to and the title shall unconditionally vest in the grantors, their heirs and assigns.”

• At the time this deed was executed, said Thomas Jones_owned the south three-fourths of the said east half of the southeast quarter of said Section Eleven. The judgment in partition was rendered at the April Term, 1917, of the said court. The; property was sold at sheriff’s sale in partition September 24, 1917. The tract purchased by plaintiff in his sheriff’s deed is described as follows:

“'All that part of the south three-fourths of the east half of the southeast quarter of Section Eleven, in Township Fifty-six of Range Thirty lying, north off Shoal Creek, and. containing' thirty acres more or less.”

The sheriff’s deed was dated and duly acknowledged in open court on October 2, 1917. Upon receiving his deed, the plaintiff proceeded to erect a fence on the south and east sides of the land, inclosing the tract in controversy, when defendant Davis appeared and tore the fence down. He was accompanied by the “silent sentinel of the fire-side” — the family shotgun — and suggested the' propriety of “blowing; a hole” through'one of plaintiff’s boys, so the boy testifies, “big enough to crawl through. ’ ’

A plat of said south three-fourths of said half-quarter section, made by a surveyor, witness for plaintiff, was introduced in evidence, of which the following is a copy so far as it shows the location and course of Shoal Creek in and through the said tract:

The land in controversy is the shaded part in the bend of Shoal Creek in the north half of the tract. The plaintiff claims that he obtained title to it by virtue of his sheriff’s deed under the sale in partition, and the defendants claim title to it by virtue of a deed from Susan .B. Kennedy and husband, dated October 23, 1917.

Plaintiff’s surveyors further testified that the part of the tract shown on the plat south of the creek, where it runs irregularly through the tract from west to east, contained 29 acres, and 97 rods and the part north .of said creek, including the part in controversy, contained 27 acres and 108 rods. That the tract in controversy contained 4 acres and 133 rods. ."

There' was evidence pro and con to the effect that before the sale in partition took place an announcement was made to all bidders that Mrs. Kennedy owned the tract in controversy, but the sheriff, never-the-less, offered and sold the land to plaintiff, as described in his sheriff’s deed.

The partition proceedings to which all the Jones heirs, including Mrs. Kennedy, were parties, included several different tracts, and the judgment therein, after reciting them all, stated they contained “264 acres more or less.” Giving the other tracts the acreage they were entitled to, as regular Government subdivisions, the plaintiff’s tract must in said judgment have been estimated as containing “30)acres more or less,” as stated in the deed of the sheriff to the plaintiff.

There was evidence that Harrison Jones, one of the sons, was in possession of the whole 60-acre tract under some sort of a verbal arrangement with his father, when the deed to Mrs. Kennedy was made, and that he refused to give up possession until sometime in December 1914, when his father paid him $100 — he says, to pay for some clearing he had done, and other witnesses say, to surrender possession to his sister, Mrs. Kennedy. There is evidence that Mrs. Kennedy then made a verbal lease to her brother Charles of all of her property, intending to include the property in question therein, and that he afterwards made a verbal lease thereof to the defendant Davis. There also arose a controversy as to payment for some walnut logs, and there is testimony that the father paid Mrs. Kennedy $33Li3I3 for logs cut from the property in question. Charles Jones and others testify to this. But, according to Harrison Jones, this money was paid her for logs out on her land further south, about which there is no dispute. After December, 1914, and during the father’s life, some timber was cut from the land in question to make lumber for an ice house, which Mrs. Kennedy built on another tract of ground. Also other timber cut off by her. There was no fence around the ground conveyed' to Mrs. Kennedy to separate it from the reminder of the tract. Charles Jones had charge of the rest of the tract for his father, and there was evidence introduced by defendants, that wood was cut from the land west of the tract in question, admittedly owned by the father and stored and piled on the land in controversy after the deed to Mrs. Kennedy. That the controversy between the Jones brothers at sometime during this period was also somewhat calorific is shown by the suggestion of one of the witnesses that on one occasion said “silent sentinel,” though not actually present, was referred to • with approval by said Harrison Jones.

At the close of the testimony, the court made the following finding of facts:

“The court makes the following finding of facts as requested by the attorney for the plaintiff at the begining of the trial. After hearing all evidence, the court finds from the weight of the evidence, that Thomas P. Jones and wife conveyed the land in question to their daughter Mrs. Kennedy, and after the sale to Mrs. Kennedy that Mrs. Kennedy exercised acts of ownership over the land, and by her acts the said Thomas P. Jones knew that she was claiming it as her own and acquiesced therein.

“And the court further finds that said Mrs. Kennedy sold said land to Mr. Davis, who used it and had possession and control of it as his own up to the time that his possession was interfered with by the plaintiff in this case, and that the defendant still has the open and actual possession of said land and did have at the commence-' ment of this suit, and that the defendants have the legal title to said land and are entitled to the possession thereof.”

To which finding of facts the plaintiff excepted.

The court refused the following declarations of law asked by the plaintiff:

“6. The court, sitting as a jury, declares the law to be that if the court finds from the evidence that Shoal Creek entered the west side of the east half of the southeast quarter of Section 11, Township 56, Range 30, • in Clinton County, Missouri, and flowed across said half-quarter section, emerging therefrom on the east side thereof, passing beyond the east line thereof, then the deed from Thomas P. Jones to Susan B. Kennedy, offered in evidence, only conveyed that part of said half-quarter section lying south of the point where said Shoal Creek entered on the west line and the point where'said creek passed through and beyond the east line of said half-quarter section, notwithstanding the fact said creek, after passing beyond the east line of said half-quarter section, again entered the same and. flowed around the tract in controversy before again passing beyond the east line of said half-quarter section.

“7. The court, sitting as a jury, declares the law to be that all statements or acts of Thomas P. Jones, deceased, and all acts of the defendant’s grantor, with reference to the land, in controversy, as testified to by the witnesses for the defendant, are not competent evidence in this case and are not to be considered in making and finding on the issues in the case.”

Plaintiff duly excepted to the court’s refusal to give said declarations.

Failing to obtain a new trial, the plaintiff appealed to this court.

I. It is true that when there is a latent ambiguity in a description of land, the circumstances and situation of the parties, and the construction they Pave put upon the deed by their acts, are admissible in evidence. [Tetley v. McElmurry, 201 Mo. 382; Gas Co. v. St. Louis, 46 Mo. 121; Union Depot Co. v. Railroad, 131 Mo. 291.]

But it is also true that when the language of the deed contains no ambiguity, or when such language applied to the subject-matter and circumstances leaves no substantial doubt as to the property conveyed by the deed, then the acts of the parties under the deed are inadmissible. [Gas Co. v. St. Louis, 46 Mo. 121; Weissenfels v. Cable, 208 Mo. 515; Beheret v. Myers, 240 Mo. l. c. 75.]

In Gas Co. v. St. Louis, 46 Mo. l. c. 131-2, the court said: “The intention of the 'parties must be first sought in tbe instrument in all its parts, in its scope and purpose, and in the circumstances in which the parties were placed; and before deciding whether we may consider the practical interpretation of the parties, we must see whether the intention is clear and unmistakable.” (The italics are ours.)

In Beheret v. Myers, 240 Mo. l. c. 75, quoting from Chief Justice Kent, this court said: “ ‘It is a sound rule of evidence that you cannot alter, or substantially vary the effect of a written contract by parol proof. This, excellent rule is intended to guard against fraud and perjuries: and it cannot be too steadily supported by courts of justice. ... If the words of a contract be intelligible, says Lord Chancellor Ttiuklow (Shelburne v. Inchiquin, 1 Bro. C. C. 341), there is no instance where parol testimony has been admitted to give them a different • sense.’ ”

It is also ruled that in construing a deed all the words of the deed within its four comers must be considered together and given effect and that words stating the estimated quantity or area are part of the description of the land and. must be so considered in fixing the identity of the tract conveyed. In Davis v. Hess, 103 Mo. 1. c. 36, Black, J., said: “The rule of law is well settled that the call for quantity may be resorted to for the purpose of making that certain which otherwise would be uncertain. . . .In deeds as well as in wills and contracts, we are to determine the intention of the parties thereto, and this is done by taking the instrument as a whole.’,’ To the same effect is Cole v. Mueller, 187 Mo. l. c. 647, where Fox, J., said that the estimate of the area as a certain number of acres “more or less” is “part of the description.” Brown, 0'., in Whitwell v. Spiker, 238 Mo. 1. c. 641, refers to and follows the rule in Cole v. Mueller, supra, as “a means ... of ascertaining the particular thing” to which the description in the deed applies.

In this case, the deed to Mrs. Kennedy conveys all of the tract therein mentioned, “lying south of Shoal Creek, and containing about thirty acres. ’ ’ The testimony of the surveyors for plaintiff was that the area of the land south of Shoal Creek, running irregularly from west to east through' the tract, was 29 and a fraction acres, which thus fully identifies that part of said tract as the lair'd conveyed and intended to be conveyed by the Kennedy deed. The four-acre tract in question cannot by any fair use of the English language be said to lie south of Shoal Creek at all, any more than it lies north of that part of Shoal Creek constituting its southwesterly boundary. It could only be described as a tract by itself lying’ east of Shoal Creek. To include it in the deed of Mrs. Kennedy would make her deed contain two disconnected. tracts substantially exceeding the estimated area in her deed. So, too, a strong circumstance is that Shoal Creek running irregularly through said tract, as it does, •from west to east, is a natural dividing and boundary line between the two nearly-equal parts of the, tract, and leaves each one contiguous body of land. The partition proceedings, too, indicated that the portion north of the creek still belonging to the estate contains 30 acres more or less, which would exclude the tract in controversy from Mirs. Kennedy’s deed. The langnage of Mrs. Kennedy’s deed when applied to the subject-matter and potent surrounding circumstances is perfectly clear and without ambiguity. Therefore, parol evidence of the interpretation of the parties by their conduct or otherwise was inadmissible. . Besides, the parol evidence admitted in this casó does not necessarily show that either the grantor, Thomas Jones, or the grantee, Mrs. Kennedy, by their conduct, thought that the tract in question was conveyed to Mrs. Kennedy by the 'deed from her father. That deed expressly reserved a life-estate in the grantor, Thomas Jones, SO' that his act in permitting’ his daughter to lease it to his son and permitting him to sublease it to Davis was giving her something which the deed clearly entitled the father to retain, and was a parol gift outside of the deed and without reference to his legal rights thereunder. The father being entitled to the possession by the express terms of the deed, the talcing possession by the daughter, and the father’s acquiescence therein, must be regarded as another act of kindness towards his daughter, and not as an interpretation of his or her legal rights under the deed. This being so, the gift of the $33.33 from the sale of the logs, and the failure to object to his daughter taking timber to build an ice-house or for other purposes from the land in question, might also be referable to the natural disposition of the father to make gifts to his daughter without regard to his or her legal rights under the. deed. These isolated and inconclusive acts of the father, of but short duration (he died in December, 1915), are not of such duration and unequivocal character as to be regarded in the construction of the deed. ,

In the Gas Case, supra, 46 Mo. l. c. 128, this court said: “It is true that evidence of such understanding should not be entertained when the language is clear and will admit of but one interpretation, because in that case, unless there is fraud or mistake the language used is the best possible evidence of the intention. Nor should any regard, be paid to loose declarations or equivocal or isolated acts, but the continuous conduct of the parties for a series of years concerning the. subject-matter of the contract, and in fulfillment of its conditions — every act pointing in the same direction — may make their understanding as clear as the greatest precision of language. ’ (The italics are ours).

The acts of the parties admitted in this case did not measure up to the standard thus required by the law to make them admissible.. The court below, therefore, erred in refusing to give plaintiff’s declaration numbered 7, declaring them inadmissible.

II. Mrs. Kennedy’s deed from her father not covering the tract in question, there is no doubt that it passed to the plaintiff by virtue of his purchase and deed from the sheriff in partition. The description in his deed is all .of said tract “lying north of Shoal Creek containing ^.iiby acres more or less.” The surveyor's of plaintiff testified that the area north of Shoal Creek (running through the tract from west to east) was 27 and a fraction acres, including the tract in controversy, and excluding it, 2:2 and a fraction acres. It was all north of the line of the creek above indicated. Applying the same rules of construction heretofore applied to Mrs. Kennedy’s deed, the deed of the sheriff to the plaintiff embraced and conveyed the land in question.

III. What we have said respecting the construction of these two deeds has been on the assumption that the areas and locati on of Shoal Creek, testified to by the surveyors for plaintiff, were substantially correct, but respondent’s, while not denying seriously, do not adpait such correctness. The lower court in its finding of facts omitted the facts relating to the areas of the different tracts and location and course of Shoal Creek in and through the property. In this respect it committed error. A statutory finding of facts, as this purports to be, should embrace all the material facts bearing on the issues involved, and should set them out in detail, and not merely state conclusions or inferences therefrom. Had the facts above indicated been found by the court, or admitted by the respondents, to be substantially as testified to by the surveyors, who testified for the plaintiff, our duty would be to reverse the case outright, and direct a judgment for the plaintiff. But, as the record stands, the judgment of the lower court must be reversed, and the cause remanded for another trial to be proceeded with according to the views herein expressed. It is accordingly so ordered. ■

Brown and Raglancl, CO., concur.

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

All of the judges concur.