text:
    CHARLES WADE, Appellant, v. J. J. ALEXANDER et al.
    Division One,
    March 1, 1910.
    NO BILL OF EXCEPTIONS. Where the only entries appearing in the record proper are copies of the petition, answer and reply, nothing but those things can be considered on appeal, and if they will support a judgment there is nothing for the appellate court to do but to affirm the judgment. The filing of a motion for a new trial and leave to file a bill of exceptions cannot be shown by what purports to be a bill of exceptions. The record proper must show the filing of the motion, the leave to file the bill, and that the bill was filed within the time given.
    Appeal from Montgomery Circuit Court. — lion. Jas. D. Barnett, Judge.
    Affirmed.

      Warner Lewis and J. M. Barker for appellant.
    The transcript is under the shorter process and the foregoing printed .abstract from pages 1 to 15 con-tarns the pleading of the parties; from pages 15 to 16, a brief statement of the case, and from pages 16 to 43 the end of the bill of exceptions.

      Barclay, Fauntleroy é Cullen for respondents.
    The abstract of the record filed by appellant in this cause fails to show that a motion for a new trial was filed and overruled, or that leave was given to file bill of exceptions, or that the bill was filed 'within the proper time, and presents to this court only the record proper. Harding v. Bedoll, 202 Mo. 634; Hill v. Butler County, 185 Mo. 514; Harris v. Wilson, 195 Mo. 412.
   WOODSON, J.

The plaintiff instituted this suit April 4, 1904, to set aside a sale made by the trustee under a deed of trust on March 5, 1904. A trial was had on December 15,1906, in the circuit court of Montgomery county, which resulted in a judgment for the defendants, and plaintiff appealed.

The only entries appearing in the record proper are copies of the amended petition, answer and reply, and the dates when each were filed. It fails to show that a motion for a new trial was filed or overruled, or that leave was given plaintiff to file a bill of exceptions, or that the bill of exceptions was filed in proper time, or at any other time. The only entries relating to any of the matters before mentioned are found in what purports to be a bill of exceptions, which was signed April 29,1907, and filed the next day, April 30th.

Under this state of the record counsel for respondents contend that there is nothing properly before this court for review except the petition, answer and reply, and that we cannot consider the merits of the case as developed at the trial for the reason, first, that the record proper does not show that appellant filed a motion for a new trial, or that the court overruled the same; and, second, that said record fails to show that appellant procured leave to file his hill of exceptions, or that it was filed in time.

Each of these contentions of respondents is fully borne out by the record. The record proper is as silent as the grave as to all of those matters, and the only reference made to any of them is found in what purports to be the bill of exceptions, filed April 30, 1907, which is not the proper place to preserve such matters, and which was long after the date of the trial, which was begun December 15, 1906.

Under the uniform rulings of this court, there is nothing properly preserved by the record and presented to this court for review, except the amended petition, answer and reply. [Harding v. Bedoll, 202 Mo. 634; Hill v. Butler County, 195 Mo. 514; Harris v. "Wilson, 199 Mo. 412.]

We have carefully read the pleadings, and are of the opinion that they support the judgment rendered in the cause, which appears to be regular and proper. The judgment is, therefore, affirmed.

All concur.


source: Caselaw Access Project

author: YALLIANT, J.

license: Public Domain

text:
    JOHN J. CHASTAIN v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant.
    Division One^
    March 1, 1910.
    1. APPEAL: Jurisdiction: Federal Question. Whether the case is a proper one for removal to the Federal court, or whether the petition and bond are what the act of Congress requires, in a sense is a Federal question, but it is not the kind of Federal question of which the Constitution of Missouri gives the Supreme Court jurisdiction. In order to give the Supreme Court jurisdiction on the ground that a Federal question is involved, the case must be one in which “the validity of a treaty or statute of or authority exercised under the United States is drawn in question.”

      2. -: -: -: Cost of Transcript. The Supreme Court does not have jurisdiction over an appeal from a judgment for $15.50 in favor of a circuit clerk who at the reguest of defendant made out a transcript in another case removed on defendant’s motion to a Federal court, and for which work plaintiff did not certify his bill of costs to the Federal court, whether the case was properly removable or not.
    Appeal from Henry Circuit Court. — Hon. G. A. Denton, ' Judge.
    Transferred to Kansas City Court of Appeals.

      Geo. P. B. Jackson for appellant.

      G. A. Calvird and W. E. Owen for respondent.
   YALLIANT, J.

This is an appeal from a judgment in favor of the plaintiff for $15.50. The cause of action stated is this: In April, 1905, the plaintiff was the clerk of the circuit court of Henry county; there was at that time a suit pending in that court wherein one Flynn was plaintiff and this defendant was defendant; on petition of defendant the court ordered the cause removed to the circuit court of the United States for that district, and at the request of the defendant the plaintiff made a transcript of the record in that case and sent it to the United States circuit court where it was filed. This suit is to recover the cost of that transcript. The transcript 'was never delivered to the defendant or its attorneys and as soon as it was filed in the United States court the suit was dismissed by attorneys for Flynn, the plaintiff in that case. The plaintiff in this case failed to certify to the United States court the cost of the transcript, in consequence of which failure defendant claims that it could not recover the cost thereof by judgment of the United States court, to which it would otherwise have been entitled.

This suit was begun before a justice of the peace and carried by appeal to- the circuit court of Henry county where judgment for $15.50 was rendered against defendant, from which judgment the defendant appealed to this court. The appeal was brought here on the idea that a Federal question was involved. The argument of appellant is that on the filing of the petition and bond for removal the State court’s jurisdiction in the Flynn case terminated, and thereafter the question of costs accruing, including the cost of the transcript, was in the Federal court alone, and therefore neither the justice of the peace before whom this suit was begun, nor the circuit court of ' Henry county where it was carried by appeal, had any jurisdiction of it. We will leave the consideration of that proposition to the Kansas City Court of Appeals to which this cause must be transferred.

■In a proper case, where- the petition and bond are filed for the removal of a cause to a Federal court, the jurisdiction of the State court ends, and, in a certain sense, perhaps it may be said that whether it is a proper case for removal, or whether the petition and bond are what the act of Congress requires, is a Federal question, but it is not the kind of Federal questions of which the Constitution of Missouri gives this court jurisdiction. In order to give this court jurisdiction on the ground that a Federal question is involved it must be a case in which “the validity of a treaty or statute of or authority exercised under the United: States is drawn in question.” [Sec. 12, art. 6, Const.] Even if the State court should erroneously decide that it was not a case for removal under act of Congress, or that the petition and bond are not what the act requires, it would be only a misunderstanding of the facts as shown by the record or an erroneous interpretation of the Federal statute, but that would not question the validity of the statute. If the State circuit court misconstrues the statute or misapplies the facts, shown by the record, our courts of appeals have jurisdiction to correct the error. The question of Whether this court or a court of appeals has jurisdiction’in such case is not a federal question, it is a question of the interpretation of our State Constitution. We derive no jurisdiction from an act of Congress. It is only where the validity of a treaty or the validity of a statute of or the validity of an authority exercised by the United States is drawn in question that this court is given jurisdiction of cases that it would not otherwise have. We have so recently been over this subject in another case that we deem it unnecessary to discuss it further, but we refer to Schwyhart v. Barrett, 223 Mo. 497.

Our Kansas City Court of Appeals alone has jurisdiction of this appeal; therefore the cause is transferred to that court.

All concur.


author: GRAVES, J.

text:
    ALMA FUCHS WELLS and AUGUSTA FUCHS JONES, Appellants, v. FRIEDRICH WILHELM FUCHS, COLUMBIA FUCHS, JULIUS VOGELER and LINA VOGELER.
    Division One,
    March 1, 1910.
    1. WILL: Codicil. A codicil to a will stands in the same position as a subsequent clause of the will. The purpose of each is the same, namely, to modify or change previous provisions of the instrument. The codicil is also made a part of the original will and must be so construed, under the usual rules of construction pertaining to wills.

      2. -: -: Unequivocal Modification. The plain, clear and positive terms of a ■will cannot be changed by subsequent clauses unless the subsequent clauses are as plain and unequivocal as the original clauses. And this rule applies to a codicil, 226 Sup — 7 which in effect is a subsequent clause made at a later date and with the purpose to change the devises theretofore made. Where the terms of the will clearly give an estate, that devise is not revoked by a codicil unless it is equally clear’, explicit and unequivocal.
    3. -: Void 'Portions. Some portions of a will may be absolutely void, yet if they do not affect the general scheme of the testator’s disposition of his property the court will hold them void and uphold the balance of the will.
    4. -: Indefinite: Supplying Words. Courts, holding the entire instrument in hand, may supply words and even substitute words in the will in order to get at the intent of the testator, and thereby uphold' his will. But they cannot make that definite which is indefinite, or that certain which is equivocal. Vagueness that destroys applies to all instruments of writing alike.
    5. -; Certain and Definite: Codicil Vague and Indefinite: Heir of Heir. By the original will, in language definite and certain, a son was given a life estate in city property, and his children, born and unborn, were given the fee. The codicil speaks of the son as “being my heir in my last will,” and then proceeds in confused and involved language to declare a little child of this son to “he sole heir of the above named” son. Held, that the codicil is vague, indefinite and uncertain, and did not change the estate fixed by the will and was void.
    Appeal from St. Louis City Circuit Court. — Hon. O’Neill Ryan, Judge.
    Reversed and remanded (with directions).

      Frank H. Haskins for appellants.
    (1) The codicil is meaningless and incapable of interpretation. Ambiguity which is patent and not latent cannot be explained by parol evidence. Davis v. Davis, 8 Mo. 56; Robards v. Brown, 167 Mo. 457. (2) In order to divest out of plaintiff, or cut down the interest once vested, the intent to do so must be clear and positive. Augustus v. Seebolt, 60 Ky. (3 Met.) 155; Kane v. Astor’s Exec., 7 N. Y. Sup. Ct. (5 Sandf.) 534; Jackson v. Littell, 213 Mo. 589. (3) The words used to impair or cut down an estate once granted must be affirmatively as strong and clear as tbe words conveying the estate. Jackson v. Littell, 213 Mo. 600; Yocum v. Siler, 160 Mo. 289; Tisdale v. Prather, 210 Mo. 402; Barksdale v. White, 28 Grat. 224. (4) When the words of a will in the first instance clearly indicate a disposition in the .testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not be cut down to any less estate by subsequent ambiguous words, inferential in their intent. Yocum v. Siler, 160 Mo. 289; Freeman v. Coit, 96 N. Y. 63; Gibson v. Seymour, 102 Ind. 489. (5) Where a bequest is clearly given in a will, an intent to revoke it in a codicil must be as clear and explicit as the original gift. University v. Pinckney, 55 Md. 365; Hard v. Ashley, 117 N. Y. 606; 1 Jarman on Wills (6 Am. Ed.), pp. 443, 675; Schouler on Wills (3 Ed.), sec. 437; Rood on Wills, sec. 423. (6) The law favors that construction of a will which will not tend to disinherit the heir. Scott v. Guernsey^ 48 N. Y. 106; Irwin v. Zane, 15 W. Ya. 646; Bearley v. Bearley, 9 N. J. Eq. 21; Wilcox v. Beecher, ,27 Conn. 134. (7) If, from the words in a will, the intention be matter of doubt, the words must be construed according to their legal import. Annable v. Patch, 20 Mass. 360.

      W. E. Eisse for respondents.
    (1) The codicil is an essential part of the will, and cannot be disregarded. The codicil is completely and properly executed, and therefore constitutes a part of the will. “It is a leading rule that, for purposes of construction, the will and its codicil or codicils are to be considered as parts of one and the same instrument and all must be construed together. ’ ’ 6 Am. and Eng. Ency. Law, p. 179, subdiv. 3, par. 2a. (2) The entire will (codicil included) must be construed according to the intention of the testatrix. R. S. 1899, sec. 4650. (3) The codicil is inconsistent with the sixth clause of the original will, and necessarily revokes this sixth clause. 6 Am. aud Eng. Ency. Law, p. 186; 1 Woemer’s Am. Law Administrations, p. 96, sec. 51. (4) The will in question indicates a clear intention to dispose of the entire estate of the testatrix. Courts always presume such an intention on the' part of a testator, and reject a construction of a wall which produces intestacy as to a portion of the estate. The contention of the plaintiffs is in violation of this settled rule, because it rejects the codicil altogether, and necessarily produces intestacy as to the property included in the sixth clause of the will. Willard v. Darrah, 168 Mo. 670; Robards v. Brown, 167 Mo. 447. (5) The codicil in question is not unintelligible, nor is it void because of any impossibility to render a reasonable construction of its terms. Fairly construed, it gives to the defendant Frederick William Fuchs a fee, determinable upon his death without leaving any children, in which event the defendants Julius. Yogeler and Lina Vogeler become entitled to the fee, subject to certain pecuniary charges in favor of the plaintiffs. . (6) The rule that wills shall be construed according to the real intention of the testator requires the court to accept the words of the will in the sense in which they were used by the testator, and to disregard the technical significance of the words actually used, and, often, to supply words and transpose words or phrases, wherever this is necessary to effectuate the evident intention of the will. (7) The inartificial character of a testamentary instrument, its want of technical accuracy, and its mistaken use of words, will not defeat a construction according to the manifest intention of the testator. (8) Extrinsic evidence is admissible to show the situation of the paidies, and as an aid in interpreting the will, so far as the situation of the parties, their feelings toward each other and their relations are a circumstance of importance in the interpretation of the instrument. Garth v. Garth, 139 Mo. 456; Rothwell v. Jamison, 147 Mo. 601; Cross v. Hoch, 149 Mo. 325; Clotilde v. Lutz, 157 Mo. 439; Hurst v. Von De Veld, 158 Mo. 239; Webb v. Hayden, 166 Mo. 39; Robards v. Brown, 167 Mo. 447; Willard v. Darrah, 168 Mo. 660.
   GRAVES, J.

This is an action to quiet title to certain real estate in tbe city of St. Louis. All parties claim under a will made by Helene Eucbs, executed April 24, 1897, and a codicil thereto, executed July 29, 1897. The plaintiffs and the two defendants, Friedrich Wilhelm Fuchs and Columbia Fuchs, were children of Dr. A. J. Fuchs, a son of the testatrix. Alma Fuchs Wells and Augusta Fuchs Jones and Friedrich Wilhelm Fuchs are children by his first wife, and Columbia Fuchs a child by his second wife. Defendant Lina Vogeler was a daughter of testatrix, and Julius Vogeler was her husband. The testatrix died October 14, 1897. Dr. Fuchs died in March, 1904.

Plaintiffs claim an undivided one-fourth each in the property under the sixth clause of the will, which reads:

“VI. I give, bequeath and devise to my son Dr. August J. Fuchs (a widower), residing in Maseoutah, St. Clair county, Illinois, the following described real estate, situated in Block No. 1354 of the city of St. Louis, State of Missouri, to-wit:
“Lots number thirty-nine and forty of Block No. 2 of Thomas Allen’s Western Addition to said city of St. Louis, Missouri; said lots having an aggregate front of fifty feet on the south line of Russell avenue by a depth of 125 feet, to an alley, inclusive the two-story stone front building No. 2738 Russell avenue, and other improvements thereon, to have and to hold the same with all the appurtenances thereto belonging, for and during his natural life, he, my said son, August J. Fuchs, to have and enjoy the usufruct, income, rents and revenue of said property for his sole use and benefit during his natural life, he, my said son, to keep the premises in good repair and tenable condition, pay taxes, insurance, etc.; and from and after the date of tbe death of my said son, August J. Fuchs, I give, bequeath and devise all of said real estate, including the buildings and improvements thereon, to his children, Alma Fuchs, aged about twenty years, Augusta Fuchs, aged about eighteen years, Friedrich Wilhelm Fuchs, aged about six years, and to the child or children that may be born to him hereafter. To have and to hold the same from and after the date of the death of my son August J. Fuchs, unto them, my said grandchildren in equal shares, and unto their heirs and assigns forever.”

Defendants, Friedrich Wilhelm and Julius and Lina Vogeler, claim by reason of the codicil of the will, which reads:

“I, the undersigned, Helene Fuchs, widow of Frederick Wilhelm Fuchs, deceased, hereby declare that after my death Dr. A. J. Fuchs, residing in Mascoutah, St. Clair county, State of Illinois, being my heir in my last will and testament such as made in my last will and testament, now in possession of Richard F. Koster in St. Louis, State of Missouri, if my son Dr. A. J. Fuchs, of Mascoutah, county of St. Clair, State of Illinois, die before his son Fred Wm. August Fuchs (now aged six years) also residing in Mascoutah, county of St. Clair, State of Illinois, he to be sole heir of the above named Dr. A. J. Fuchs of Mascoutah, St. Clair county, State of Illinois, if he dies, such inheritance (providing he dies without heirs, that is, his sisters, Alma Fuchs and Grussie Fuchs only to receive from such one hundred dollars each), but the residue to revert to my son-in-law Julius Vogeler, Sr., and his wife Lina. Vogeler, nee Fuchs.”

There was oral evidence tending to show that the plaintiffs had trouble with their father, Dr. Fuchs, and that the testatrix took the side of the father. The codicil was shown to be in the handwriting of Dr. Fuchs. It appears that one of the plaintiffs had procured the arrest of the father, and the testatrix had requested that the suit he withdrawn, and that afterward she said in speaking of this matter that she had changed her will. The important portion of the decree of the trial court reads:

“And the court doth find, adjudge and decree that under the will of the late Helene Fuchs, as set out in the petition in this cause, the fee simple title to the premises described1 in the petition became vested, upon the death of August J. Fuchs, to-wit, on or about the 14th day of March, 1904, in the 1 defendant Wilhelm Fuchs, and is now vested in him, the said Frederick Wilhelm Fuchs, subject, however, to be determined in the death of him, the said Frederick Wilhelm Fuchs, without leaving him surviving any' lawful child or children, in 'which event said legal title shall become vested in the defendants. Julius Yogeler and Lina Yogeler as joint tenants, subject, however, to the payment by them of the sum of one hundred dollars to each of the plaintiffs herein, to-wit, Alma Fuchs Wells and Augusta Fuchs Jones, which respective sums constitute a charge upon the contingent interest of said Julius Yogeler and Lina Yogeler in and to the premises aforesaid. And the court doth further adjudge and decree that the proper construction of the will of said Helene Fuchs aforesaid vests the title to the premises described in the petition herein according to the previous finding of this decree.”

Plaintiffs bring the case here by appeal taken in due order and within propér time.

It will be observed that the real issue is as to the effect that the codicil to the will has upon the sixth clause thereof.

Points urged will be noted in the course of the opinion.

Proceeding now to the questions of law, from the entire will it is evident that there was an attempted disposition of all of the property of the testatrix. This intent is clearly apparent. The question therefore is whether or not the testatrix hy the codicil has so clearly indicated her purpose of changing clause six of her original will as to change the character of the bequests therein contained and the beneficiaries therein named. By clause six of the original will, Dr. Fuchs took'a life estate in the property.in question, and his heirs born, or thereafter to he horn, an estate in remainder in fee. The codicil attempts to change the bequest in said sixth clause made- In this codicil Dr. Fuchs is designated as the heir of the testatrix. In other words she says that he has theretofore been designated as the heir of deceased in the first will. In this codicil it is provided that the young son Fred Wm. August Fuchs he the sole heir of Dr. Fuchs, in case of his death. The question therefore is whether or not this codicil is sufficiently definite and certain in its terms to change the distribution theretofore made by clause six of the original will. It should he here remarked that notwithstanding the fact that there is an evident purpose' to dispose of the whole estate, yet some portions of a will, so intended, may violate some rule of law, and thereby be ineffective.

In this case, we have a testatrix with a will definite and certain as to the distribution of her whole estate. Later, she undertakes hy codicil to change and modify such distribution. This she had the right to do. And further he it said that if such subsequent modification is sufficiently definite and certain, so that the court can determine from the four corners of the instrument, including the modification made hy a codicil, what the actual intent and purpose of the testatrix is, then such interpretation should he adopted, and to that end the will as a whole should he sustained. We take it that a codicil to a will stands in the same position as a subsequent clause in a will. The construction which should he given to one should be given to the other. The purpose of each is the same, i. e., to change or modify previous provisions of the instrument. Of course in a codicil the modifications may be, and usually are, more radical than are those usually found in the different clauses of an instrument made at one and the same time. One question is clear and that is that the purpose of a codicil is to modify and change the clauses of an instrument to which it is attached. Another question likewise appears to be clear, and that is that it is made as a part of the original will, and if so, must be so construed, under the usual rules of construction pertaining to such instruments. We can see, however, where it might be contended, that the codicil Was in fact a new will, but in view of the fact that it must be considered as a modification or change of the old instrument, we can see no reason for changing the usual rule of construction given to wills as a whole. Some portions of a will may be absolutely void, yet if they do not affect the general scheme of the testator’s disposition of his property, the court can hold them void, and yet uphold the will. [Sevier v. Woodson, 205 Mo. 202.] And in the same case it is held that the clear, plain and positive terms of a will cannot be changed by subsequent clauses, unless such subsequent clauses are as plain and unequivocal as the original clauses. At loc. cit. 214 of that case we said: “We take it to be well-settled law that where a certain estate is granted in plain and unequivocal language in one clause of a will, the same cannot be lessened or cut down by a subsequent clause of the will, unless the language used in such subsequent clause is as clear, plain and unequivocal as the language of the first grant. ’ ’

Upon this question, at that time, we had occasion to go over and review the authorities, and a further review thereof would be at the expense of space in this opinion. In that case, we were reviewing clauses of the original will, but we take it there is no differenee in the rule as between subsequent clauses in the original will and a codicil to the original will. The latter is but a subsequent clause, made at a later date, the purpose of which is to change the devises theretofore made. If such change is made it must be in such . language that it is clear, explicit and unequivocal. In other words, where there has been a clear devise in a will, the terms of the codicil must be equally clear in order to change such devise. In Rood on Wills, sec. 423, it is said: “When the terms of a will clearly give an estate, the words of the codicil must manifest an intent equally clear to revoke it. ’ ’ To like effect is Schouler on Wills, sec. 437, whereat, among other things, it is said: “And that a clear gift in the will is not revoked by vague or doubtful expressions in the codicil.” Authorities innumerable might be cited, but to our mind the reason for the rule as to a codicil is as well founded as is the reason for the rule as between prior and subsequent clauses of the same instrument. In fact the court must treat the codicil as a part of the same instrument and construe the two as one. By so doing we have for consideration the will which otherwise we could not have.

When we have a will for construction there are certain rulés which must be the guide. These rules do not permit us to rewrite the will for the party on the one hand, nor do they permit us to say that the party has properly written the will unless it so appears. One rule is as binding as the other. If the provisions of a will are void, we must so declare, notwithstanding the general rule that the court shall attempt to find the real intent of the testator. If certain clauses of the will are void for reasons well founded in law, we must so say. This rule finds expression in the very recent case of Board of Trustees v. May, 201 Mo. l. c. 369, where we said: “We confront at the outset two well-recognized rules in the law: First, courts cannot make wills for parties. Second, wills should be so construed as to carry out the intention of the parties. In the latter we are not limited to the four corners of the instrument, hut may he enlightened by evidence, aliunde, as to the conditions and surroundings of the testator, in determining the real intention of the party making the will. But even when guided by these rules the court may by invoking, and without doing violence to, any of the rules of constructivo in cases of wills, find a condition in the devise which, for vagueness and indefiniteness, cannot be enforced. Such appears to us to be the real question in this case.”

It is true that exact language is not required of a testator. Legal terms and phraseology are required. When we take the whole instrument, we may supply words, and even substitute words in order to get at the intent of the testator, and thereby uphold the will. But giving this rule its full force, we cannot make definite that which the testator has made indefinite. We cannot make certain that which the testator has left uncertain. We cannot make certain that which the testator has left equivocal.

Both rules must be considered together and our judgment respond thereto. Vagueness we cannot make light. Uncertainty, by our ipse dixit, we cannot make certain. Language with English meaning we cannot change, whether it be used by one accustomed to the language or otherwise. Radical looseness in the making of wills or codicils thereto cannot be tolerated under rules of law any more than it can be tolerated in many other instruments submitted to the courts for construction. When we say that vagueness destroys the effect of an instrument of writing, it applies to wills as it does to all other writings.

In this case we have set out in full the instrument in so far as the questions involved are concerned. By the original will, Dr. Fuchs was given a life estate in ■the property involved and his children born or unborn were given the fee. This will was definite and certain. The codicil is a conglomeration of language of uncertain meaning. It speaks of Dr. Fuchs as an heir under the will of testatrix. The word heir we might and perhaps should construe to mean devisee, but when the codicil goes further and says the little boy shall be made the heir of Dr. Fuchs, it goes beyond-our limits in matters of construing language. There is not much use theorizing upon such a case. By the will Dr. Fuchs was only given a life estate in the property in question. As to that he could have no heir at law or otherwise. The estate died with him. Nor could testatrix make the boy an heir, because the law fixed that status, unless Dr. Fuchs changed it by his own will. No good purpose is subserved by a further analysis of this codicil. It is vague, indefinite, uncertain and crude to the limit. It is too vague, indefinite and uncertain to change the estate clearly fixed by the sixth clause of the will. We might guess at the intent of the testatrix, but further than that we could not go. The law does not permit such course. The court, nisi should have declared the codicil void, and to this end the cause is reversed and remanded with directions that the trial court enter up judgment to the effect that the plaintiffs are each entitled to an undivided one-fourth interest in the property, and that the defendant, Friedrich Wilhelm Fuchs is entitled to an undivided one-fourth interest in the same, as is also the defendant, Columbia Fuchs, and that the defendants, Lina Yogeler and Julius Vogeler have no interest therein.

With these directions, the judgment nisi is reversed and remanded.

All concur.


author: LAMM, P. J.

text:
    F. M. ARNETT et al. v. C. C. WILLIAMS, Appellant.
    Division One,
    March 1, 1910.
    1. DEED OF TRUST: No Power to Trustee. A deed of trust cannot be foreclosed by newspaper notice unless the power of the trustee to act is given expressly or by necessary implication by the instrument itself. If the instrument grants the title to the holder of the note and not to the trustee, neither the trustee named nor a substitute sheriff has power to sell upon newspaper notice.
    2. -: -: Foreclosure By “Said Sheriff.” The form of the deed of trust provided for three parties, and named the owners of the land as parties of the first part, the payee of the note as party of the second part, and one Riddle, trustee, as party of the third part, and recited that in consideration of the debt ($72.95) “to be paid by the said party of the second part,” the “said sheriff or in the event of his sickness, death, absence from the county or other disability or refusal to act, the then acting sheriff, upon request of the holder of said note, shall sell the property.” “Said sheriff” was not named, and there was no habendum clause. Riddle refused to act, and the acting sheriff sold upon newspaper notice and the only bid was one by the sheriff for the holder of the note for the amount of the debt and costs. Held, that the instrument cannot be said to be an unmistakable grant to Riddle, and therefore the party of the third part (Riddle) cannot be treated as the party of the second part, and the mortgage could not be foreclosed upon a newspaper notice, but only, if at all, upon a reformation by or foreclosure in equity; and the sale should be sot aside upon condition that the debt, interest and costs are paid.
    3. -: Redemption. The statutes (Secs. 4343 and 4344, R. S. 1899) providing for redemption from sales under mortgages and deeds of trust, do not apply to equity cases to set aside trustees’ sales and deeds inoperative to pass title because of irregularities.
    4. PRACTICE:- Death of Respondent: Revivor. Where the subject-matter is real estate, and a plaintiff, who had only a curtesy interest, has died since defendant appealed, and all heirs are parties and his interest has fallen in, a revivor would be an idle ceremony, and the decree below, being right, will be modified by , striking his name from the record, and so modified will be affirmed.

      Appeal from St. Clair Circuit Court. — 'Son, G. A. Denton, Judge.
    Abbirmed (as modified).

      E. T. Williams for appellant.
    (1) The deed of trust explicitly names George M. Riddle, trustee, and he covenants to' perform the trust. He drew the trust deed himself. It clearly appears upon the deed that J. M. Offield was the payee of the note secured, and the beneficiary under the deed. The deed was valid in all respects as a deed of trust with power of sale in the trustee, and, upon his absence or refusal to act, in the sheriff. Hence, foreclosure by advertisement and sale was the proper method. Gaines v. Allen, 58 Mo. 537; Boyce v. Sykes, 97 Mo. 362; 2 Jones, Mort. (4 Ed.), secs. 178l’ 1785, 1777, 1773,1779; Deal v. Cooper, 94 Mo. 62. This court held 'that to be an obvious clerical error in view of the entire instrument and that the power was lodged with the mortgagee notwithstanding. The sheriff had a right to make the sale though the title was in the grantee. 2 Jones, Mort. (4 Ed.), sec. 1779. No particular form of words conferring the power are necessary. 2 Jones, Mort., sec. 1778. The holder of the note may leave a bid with the sheriff. 2 Jones, Mort. (4 Ed.), p. 679. (2) It is only where the power of sale is lodged with and exercised by the mortgagee that redemption is allowed when the mortgagee buys. The power of sale was here, not in Offield nor his assigns, but by the express terms of the instrument, it was in Riddle, trustee, and after him in the sheriff. The sheriff made the sale as provided in the instrument. Redemption was necessarily foreclosed thereby. If respondents had any right to redeem, it was under the statutes, and this remedy has been ignored. R. S. 1899, secs. 4355*, 4343, 4344; Walmsley v. Dougherty, 163 Mo. 298. (3) The intent of the original deed of trust from Mary Arnett and F. M. Arnett to George M. Riddle, trustee for J. M. Offield, is plain upon its face and was clearly understood by tbe parties thereto. Obvious clerical errors are not to be taken advantage of by interested parties years thereafter to defeat their deeds in writing solemnly executed under the forms of law, clearly understood by them at the time, from which they have derived advantage and upon the face of which, taken in their entirety, the intention is manifest. Foreclosure by advertisement and sale was the proper method.

      Montgomery $ Montgomery and A. L. Shortridge for respondents.-
    (1) Sale under a power in a deed of trust or mortgage is a harsh mode of foreclosing the rights of the mortgagor. Such sales are scrutinized by courts with great care. The power of sale must be clearly conferred and strictly pursued. Polliham v. Reveley, 181 Mo. 622; Wolff v. Ward, 104 Mo. 127. A power of sale is not clearly conferred upon the sheriff of St. Clair county. (2) The notice of sale “shall be given by advertisement in some weekly newspaper published in such county for three successive weeks, the last insertion to be not more than one week prior to the day of sale.” R. S. 1899, sec. 4355. Because of the failure to so advertise, the sale did not convey the equity of redemption of the plaintiffs. Wolff v. Ward, 104 Mo. 150. (3) The courts will ignore an obvious clerical error; and where the contract admits of construction will construe it in accordance with the plain intention of the parties; nevertheless, the courts will not do violence to the written words of a contract beyond correcting an obvious clerical error, except upon a bill filed for that purpose. Rackliffe v. Seal, 36 Mo. 317; McMeel v. O’Connor, 32 Pao. 182. It is impossible to. gather from the deed of trust whether the grantors intended to vest the power of sale in Offield, to whom the conveyance was made, or in Riddle, the alleged trustee, or in .the sheriff of Pettis county. (4) The right of redemption may be asserted, at any time within ten years. Mere delay is not laches. Hendrix v. Callaway, 2.11 Mo. 566 ,* Spurlock v. Sproule, 72 Mo. 510. Even if mere unexplained delay were laches, the delay here is accounted for by the fact that Williams never claimed adversely to plaintiffs until a few days before the suit was brought. As soon as an adverse claim was asserted the action was brought. (5) That a conveyance absolute on its face is in fact a mortgage may be proved by parol evidence. Reilly v. Cullen, 159 Mo. 322; Book v. Beasly, 138 Mo. 455.
   LAMM, P. J.

Prom a decree of the St. Clair Circuit Court, setting aside a trustee’s sale of 160 acres of land in St. Clair county, a trustee’s deed to the purchaser and a deed from the latter to Williams, upon terms imposed as the price of the decree, to-wit, the payment of the secured debt, interest, expenses of the sale, etc., Williams appeals.

The sale was made on the 27th day of November, 1899, by Decherd, then sheriff of St. Clair county, under a deed of trust dated February 26, 1896. The title to the land then stood in Mary A. Arnett, a married woman — her husband being a tenant by the curtesy. She and P. M., her husband, executed the deed of trust to secure a small note ($72.95) to one Offield as boot in a swap of properties. At the time of foreclosure Williams held the secured note and Mary A. Arnett was dead. The plaintiffs are P. M. and two of thé daughters of Mary A. The defendants are Williams (who alone appeals), another daughter of Mrs. Arnett and the widow and descendants of a deceased son. Williams got title, such as it is, through the trustee’s sale by a mesne conveyance from F. M. Arnett, the purchaser. Arnett’s name was used as purchaser by Williams, Arnett paying nothing on his bid and Williams paying nothing to Arnett for his conveyance — the bid ($97.50) being credited on the secured note by order of Williams and the express consideration in the deed from Arnett to Williams being $1800, a dignified (but mythical) sum named by himself.

■ Plaintiffs sue in equity, proceeding on two theories —one of them, that the trustee’s sale was colorable only and was brought about by Williams and F. M. Arnett under such circumstances and understanding that Williams holds his title seized to ■ the use of Arnett and the heirs of Mrs. Arnett, subject to the original debt plus expenses and outlay. This phase of the case is developed at length on all sides. The equitable conditions said to entitle plaintiffs to set the sale aside and avoid the deeds as absolute conveyances by impressing them with an implied trust are asserted and denied respectively (mutatis, mutandis) vehemently by plaintiffs and Williams. But unless we find against plaintiffs on the second theory of the case, an investigation and determination of the implied trust theory will not be necessary.

The second theory is this: It is alleged, in effect, by the bill that the sheriff of St. Clair county had no donation of power to execute the trust, the deed of trust holding no such terms and being so irregular as not to be enforceable by a sale under a newspaper notice, but only on reformation by, or foreclosure in, equity. In his decree the chancellor, inter alia, found facts warranting relief on this second theory as well as on the first. If, then, his decree can stand on either foot it is well enough; for if we hold with the chancellor, in effect, that there was no donation of power to the sheriff of St. Clair county to execute the trust because of inherent and1 patent defects in the deed of trust, it follows that the sale was mummery; that the legal title did not pass; that the trustee’s deed and conveyance from the nominal purchaser, Arnett, to Williams fall; and that Williams got equity through the decree, neither more nor less, vis., his debt, interest, outlays and expenses, found and decreed to be $172.50.

Attending to the deed' of trust: It provides for . three parties, vis., one of the first part, one of the second, and one of the third. The draftsman, we take it, had not come from “a deed of trust state.” At any rate, the record shows he 'was only familiar with mortgages giving power of sale to the mortgagee, i. e., the beneficiary, and not to a trustee, to whom the legál title was conveyed for the purposes of the trust, such as are in vogue in Missouri. Accordingly, after making the Arnetts parties of the first part, instead of making the trustee party of the second part, he wrote into that clause of the deed of trust the name of “ J. M. Offield,” the beneficiary, and into the blank provided for the beneficiary he wrote “Geo. M. Riddle, trustee. ’ ’ Instead of providing the usual nominal consideration as moving from the trustee, which together with the debt and trust mentioned and created, would support the conveyance, he wrote into the deed the consideration of $72.95 “to be paid by the said party of the second part” (that is, Offield) to the parties of the first part and goes on to say that the parties of the first part acknowledged the receipt of that sum and in consideration thereof they “do grant, bargain and sell” by these presents “unto the said party of the second part” (that is, Offield) “and his heirs and assigns forever the following described tract of land situated in the county of St. Clair in the State of Missouri, to-wit, the east half of the northwest quarter and the north half of the southwest quarter of section 14, township 38, range 27, containing 160' acres.” It next says that the foregoing land is conveyed to the second party “with all rights, privileges and appurtenances thereto belonging” — waiving, releasing and relinquishing unto said second party all claims, benefits and estate pertaining to the exemptions of homesteads. It next comes to designate and define the trust, reciting that Mrs. Arnett on the 26th of February, 1896, made and. delivered to one J. M. Offield one promissory note for $72.95 due February 27, 1897, with interest at eight per cent per annum until paid; and providing that if Mrs. Arnett or her executors or administrators pay the principal and interest of the note when the note becomes due then the deed shall be void and the property conveyed is to be released at the expense of the Arnetts. Then comes this significant clause: “but otherwise this deed shall remain in full force, and the said sheriff or in the event of his sickness, death or absence from the county of--- or other disability or refusal to act, the then .acting sheriff of St. Glair county, Missouri, upon request of the holder of said note, his agent or attorney, shall sell the property,” etc.

The deed of trust was not signed by Geo. M. Riddle, trustee, but winds up with the following clause: “And the said Geo. M. Riddle, trustee as aforesaid, covenants and agrees faithfully to perform and fulfill the trust herein created.” The last clause is in print with a blank for the name, in which blank “Geo. M. Riddle” is inserted.

The deed has no to-have-and-to-hold clause, so that, in this instance, the granting clause to Offield cannot be illuminated or modified by an habendum-ettenendum clause to Riddle, trustee — a course held allowable under modem rules of construction. [Buxton v. Kroeger, 219 Mo. l. c. 246 et seq., and cases cited.]

It will be observed that the sheriff of St. Clair county was to act only on a contingency, vis., in the event of the sickness, death or absence “from the county of'-or other disability or refusal to act” of some person. Now, who was that person? Riddle, trustee? Not at all — it was “said sheriff.” If there had been a blank in the deed for the name of the party who was to refuse to act then by interpretation, if the context aided us, we might have read into that blank the name “Biddle.” We do not say that having so read “Riddle” in it would have been sufficient to overcome the operative force and effect of the granting clause which put the legal title in Offield and not in the trustee, but it would have helped a little to construe the instrument. Even that help is denied us in this instance, because, for some inscrutable reason, there is written into this deed the proviso that before the “acting sheriff” of St. Clair county can act the “said sheriff” shall be sick, dead, absent or be disabled or refuse to act. Who was the “said sheriff?” No sheriff is mentioned before that in the deed and the draftsman evidently had a mental conception he never bodied forth. The truth is that to make this a perfect deed of trust putting the legal title for the purposes of the trust in Biddle, trustee, and giving the acting sheriff of St.'Clair county power to execute the trust in the contingency of his absence or refusal to act, we would have to construct, rather than construe, the deed itself. A court of chancery has power to reform the instrument because of mutual mistake or to enforce it as an equitable mortgage by its decree of foreclosure, but we are not willing to write it down as good law that a deed of trust may be foreclosed by newspaper notice, unless the power of the trustee to act is given either expressly or by necessary implication by the instrument itself.

In this case Biddle declined to serve and, based on that declination, the acting sheriff of St. Clair county undertook to execute the trust and pass the legal title. The patent mistakes and jumbles of the deed were such that the foreclosure by such sheriff was bound to depress and chill bidding or prevent it out-and-out. Precisely that natural result followed. No by-stander risked a penny at the sale.- Williams and F. M. Arnett resided at Sedalia, a great way off. Neither of them were present. It does not appear that the heirs of Mrs. Arnett knew of the sale. Williams cast an anchor to the windward by leaving a bid with the sheriff either by telephone or letter — that is, he told him to start the bidding at the amount of the debt and costs. The sheriff did so. Outside of that voiceless bid there was no other. The testimony differs as usual on the value of the land. The lowest estimate on behalf of defendant puts it at $200. The highest estimate of plaintiffs’ witnesses made it worth, say, $800. The great weight of the testimony made it worth from $400 to $600'. The farm therefore passed under the hammer at public outcry on a perfunctory-bid of an absent-bidder at $97.50 — a result to be expected from a newspaper foreclosure of such a deed of trust.

The main rule for interpreting .an instrument is to gather the intention of the parties from the entire paper. Another good rule is that there is no need to resort to equity to perform or perfect it if its meaning is obvious on its face. To this end, it is allowed as good doctrine that a “clerical error,” that is, a slip of the pen, will not control its construction aad may be disregarded. But the defects in this instrument were not mere clerical errors and slips of the pen. To the contrary, they were grave mistakes of law or fact or both, arising from misconceptions or lack of knowledge in the draftsman. The mistakes or slips in this instrument were not so much slips of the pen as of the mind, they were erroneous or confused mental conceptions influencing the will of the draftsman and led up to his act in drafting a confused and imperfect instrument.

If the deed had. by subsequent recitals shown “unmistakably,” as in the case of Gaines v. Allen, 58 Mo. 537, that the grant was to Riddle and not to Offield, we might treat the party of the third part as the party of the second part and their transposition as a. mere clerical error, as was done in that case, but the after recitals of this deed do not aid ns or show such fact unmistakably — contra, they make “confusion worse confounded,” they throw a shadow rather than light.

If in a trilateral deed the party of the second part, viz., the trustee, be not named at all, then, absent other faults, if the blank intending to carry his name be left blank and if the trustee accept the trust by signing the deed, as in Boyce v. Sikes, 97 Mo. 362, there might be no necessity to go into equity for reformation or for foreclosure, as held in that case. There the signature of the trustee healed the omission of his name in the clause relating to the second party.

We think this case is controlled by Rackliffe v. Seal, 36 Mo. 317, a case followed in Jones v. Shepley, 90 Mo. l. c. 313. See, also, McMeel v. O’Connor, 3 Colo. App. 113, 32 Pac. 182.

It is argued by learned counsel for appellant that plaintiffs were not entitled to redeem except under the statutes providing for redemption from mortgage and deeds of trust sales, Revised Statutes 1899, sections 4343 and 4344, and that they did not comply with the mandate of those statutes. This argument inadvertently travels on a misapprehension. Those statutes provide for redemption as of course. They are not intended to apply to equity cases to set aside trustees’ sales and the deeds following as inoperative to pass title because of irregularities and where redemption. is the mere price put upon the decree in order to do ■equity. It is doubtful whether under our Constitution the jurisdiction of courts of equity as handed down by the fathers and as existing at the time the Constitution was made can be whittled away, in fractions at a time, by legislative enactment. But assuming, arguyendo, it may be done, then, at the very least, to oust the jurisdiction of courts of equity in cases of equitable ■cognizance, the legislation claimed to have that effect must get at its result by express enactment or by inexorable implication. [1 Story, Eq. (13 Ed.), sec. 64 i, p. 69 et seq.; Hudson v. Wright, 204 Mo. l. c. 423 et seq.; Baldwin v. Davidson, 139 Mo. l. c. 126-7; Hubbard v. Slavens, 218 Mo. l. c. 619; Const. of Mo., sec. 1, art. 6.]

Under this record, there are no laches (Eutter v. Carothers, just handed down, 223 Mo. 631). Appellant demurred generally and specially to plaintiffs’ bill, and, unfortunate below, saved the point and now assigns error thereon. The demurrer, as we see it, strikes at that phase of the bill relating to an alleged implied trust. As we have not passed on that phase of the case, we pass the point itself.

It is said in respondents’ brief that F. M. Arnett is dead. They also suggested his death, ore terms. The fact is not gainsaid or disputed by appellant’s brief or by his counsel at our bar. The subject-matter being real property and his estate by curtesy having fallen in, and all heirs being parties to this proceeding already, a formal revivor would be an idle ceremony.

The decree below will be modified by striking his name from the record and, as modified, affirmed. My brethren all agreeing, it is so ordered.


author: WOODSON, J.

text:
    THOMAS HAYS, WILLIAM STORY and CHARLES ELLENBERGER, Appellants, v. HENRY F. PUMPHREY and L. C. PUMPHREY.
    Division One,
    March 1, 1910.
    1. CONVEYANCES: Recording Deed in Another County: Notice. The record of a deed imparts notice to subsequent persons only when it is recorded in the county in which the land lies. So that where Lee conveyed land in Shannon county to Pumphrey in 1858 and the deed was recorded in Oregon county in 1860 and in Shannon county in 1874 and in 1860 Lee conveyed the land to Vogal for a recited consideration of $400, and that deed was recorded in 1873, Vogal took without constructive notice; and being without actual notice or knowledge of Lee’s prior conveyance to Pumphrey, and the consideration being valuable, and the land being wild and uncultivated and not in the actual possession of anyone, Vogal took the legal title, and his subsequent grantees did also as against Pumphrey’s grantees.
    3. ADVERSE POSSESSION: Proof. Testimony of a defendant that he and his grantors had “been in possession of the land in controversy for thirty-five years,” is simply an expression of his own conclusion as to who had been in possession; and, in the face of his own testimony that the land was wild and uncultivated, and that no one lived upon or exercised any act of ownership except to pay taxes, does not establish possession.
    .4. -: Limitations: Paying Taxes. Where the land was wild and uncultivated and the legal paper title is in plaintiffs, defendants cannot deprive them of their title by simply paying taxes thereon for thirty-five years.
    Appeal from Shannon Circuit Court. — No». W. N. Evans, Judge.
    Reversed and remanded (with directions).

      Jno. C. Brown and Ed. J. Shuck for appellants.
    (1) The act transferring the land in controversy from Oregon county to Shannon county was passed with the emergency clause, and was approved and toot effect on March 12, 1859. Laws 1859, p. 413. (2) The law in 1858, and ever since that date, has required deeds to he recorded in the county where the land conveyed is situated. Hence the record of respondent’s deed in Oregon county did not impart notice. R. S. 1855, sec. 40, p. 364; same as R. S. 1899, sec. 923; Geer v. Lumber & Mining Co., 134 Mo. 93; Gwynn v. Frazier, 33 Mo. 89. (3) “No instrument in writing shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record. ’ ’ R. S. 1855, sec. 42, p. 364; same as R. S. 1899, sec. 925. (4) The land being unoccupied and the deed to Pumphrey being invalid, there was no reason and no law whereby appellants could attach said deed until the enactment of 650 in 1897, and1 they instituted this action in less than ten years after that statute was passed. Burkham v. Manewal, 195 Mo. 507; Haarstick v. Gabriel, 200 Mo. 244; Mason v. Crowder, 85 Mo. 532. (5) The thirty-year Statute of Limitation cannot be invoked by respondents who have never been in actual possession. Haarstick v. Gabriel, 200 Mo. 243. (6) Payment of taxes and protecting land against timber thieves were not possession. Neither do they work any estoppel against the true owner. Himmelberger v. McCabe, 220 Mo. 154; Carter v. Hornbeck, 139 Mo. 239; Burkham v. Manewal, 195 Mo. 500'. (7) Respondents ’ grantor, Pumphrey, having failed to record his deed in the proper county, it was invalid as to appellants’ grantor; it is not even charged he had any actual notice thereof. Strong v. Whybark, 204 Mo. 341. (8) Appellants’ grantor having placed1 his deed on record, this was all the notice he was required to give to anybody of his title. Bales v. Perry, 51 Mo. 453; Throckmartin v. Pence, 121 Mo. 60; Mylar v. Hughes, 60 Mo. 115; Herman on Estoppel, sec. 968, p. 1092.
   WOODSON, J.

This suit was instituted in the circuit court of Shannon county, by the plaintiffs against the defendants, under section 650', Revised Statutes 1899, to ascertain and determine title to the north- half of section twenty-seven, township twenty-six north, range four west, situate in said county.

The petition was in conventional form and practically followed the language of the statute.

The answer was as follows (formal parts omitted):

“Now this day come Henry P. Pumphrey and L. C. Pumphrey, and for their answer admit that they own and claim title to the land described in plantiffs’ petition, • and for further answer deny each and every other allegation there contained, and having answered, ask to be discharged with their costs in this action.”

A trial was had before the court, without the intervention of a jury, which resulted in a decree perfecting the title to said land in defendants. After moving unsuccessfully for a new trial, and saving all proper exceptions, plaintiffs duly appealed the cause to this court.

At the trial it was admitted by the parties to the cause that the real estate involved was, on February 3, 1859, patented by the United States to one Henry Lee.

The plaintiffs then offered and read in evidence a general warranty deed from the patentee, Henry Lee, to John Yogal, conveying the land in controversy, dated March 7, 1860, consideration $400, and recorded in said Shannon county on the 13th day of November, 1873.

The plaintiffs then read in evidence a deed from the said John Yogal and Jane Yogal his wife, convey ^ ing all the land in controversy, to William Burns, dated the 5th day of September, 1874, and duly recorded in Shannon county, State of Missouri.

The plaintiffs next read in evidence a deed from the said William Burns and Mary Jane Burns, his wife,' to these plaintiffs, William Story, Thomas Hays and Charles Ellenberger, dated October 4, 1876, and recorded November 11, 1876, in the deed records of Shannon county.

The plaintiffs here rest their case.

The defendants to sustain the issues on their part offered to read in evidence book “K,” at page 245, of the deed records of Shannon county, Missouri, being the record of a warranty deed from the patentee, Henry Lee, to William F. Pumphrey, dated November 10, 1858, purporting to convey the land in question, in consideration of $320 paid. The plaintiffs objected to the introduction of the deed offered in evidence for the reason:

First: Because the deed offered' in evidence purports to convey land in Oregon county.

Second. Because the deed offered in evidence was recorded in Oregon county.

■ Third. Because the deed offered in evidence was recorded in Oregon county and the record of a deed recorded in Oregon county is no notice to a party buying real estate in Shannon county, and the plaintiffs further object to the introduction of the deed offered in evidence for the reason that the grantor in said deed had heretofore executed a conveyance of said real estate to the plaintiffs’ grantor, which had been made a matter of record in the deed records of Shannon county, Missouri, prior to the recording of the deed offered in evidence. Which objection was by the court overruled, and said deed was admitted in evidence, to which action of the court in overruling the plaintiffs’ objection and in admitting said deed, the plaintiffs then and there excepted.

Said deed was general warranty deed, duly acknowledged December 10, 1858, and recorded May 31, 1859, in the office of the recorder of deeds of Oregon county. Said deed was also filed for record in Shannon county July 21, 1874 at 4 p. m., and recorded on July 22, 1874.

It was admitted by both the plaintiffs and the defendants that the land described in the deed offered and read in evidence and the land involved in this controversy was a part of Shannon county at the time of the filing of said deed for record in Oregon county, May 31, 1859, and has been a part of said Shannon county ever since the 12th day of March, 1859.

The defendants next offered in evidence deed record “N” at page 150, being the record of a deed, dated February 1, 1876, from or purporting to convey the interest of William F. Pumphrey and wife in and to the same land to Henry F. Pumphrey and L. C. Pumphrey. The plaintiffs objected to the deed offered in evidence, for the reasons that the deed purports to convey the interests of William F. Pumphrey and wife, whose grantor had heretofore conveyed said real estate to the plaintiffs ’ grantor, and the deed had been made a matter of record in the deed records of Shannon county. The court overruled the objection, and the deed was admitted, to all of which plaintiffs excepted. Said deed was a general warranty deed, duly acknowledged and recorded in the office of the recorder of deeds of Oregon county, November 13, 1876. This deed also bore the additional filing mark: “Filed and recorded December 4, 1876, at 4 o’clock p. m. John M. Dougherty, Recorder.”

The defendants to sustain the issues on their part ■ introduced as a witness Henry Pumphrey, who testified as follows:

“Q. You are one of the defendants, are you not? A. I am.
“Q. ■ State who has the possession of the land1 in controversy?”

Objected to by plaintiffs, for the reason that the question elicits or requires only the opinion of the witness. Which objection of the plaintiffs was by the court overruled; to which action of the court in overruling the plaintiffs’ objection, the plaintiffs then and there excepted.

“A. The defendants are in the possession of the land in controversy.
“Q. How long have the defendants been in the' possession of the real estate?”

Objected to by the plaintiffs, for the reason it requires and the answer could be nothing more nor less than the opinion of the witness. Which objection was by the court overruled; to which action of the court in overruling the plaintiffs’ objection, plaintiffs then and there excepted.

“A. The defendants have been in possession of the land in controversy for about thirty-five years.
“Q. State the years that yourself and your grantors have paid the taxes on the land in controversy?”
Objected to by the plaintiffs, for the reason that the witness, first, cannot testify as'to the acts of his grantors; second, because it is not 'the best evidence; third, because the defendants have not as yet accounted for the loss of the tax receipts. Which objection was by the court overruled, to which action of the court in overruling the plaintiffs’ objection, the plaintiffs then and there excepted.
• “A. Myself and my grantors have paid the taxes since 1858.”

Witness cross-examined by plaintiff:

“Q. Have you ever, at any time, improved the land in controversy? A. I have not.
”Q. Have you ever, at any time, either yourself or by any other person for the defendants, improved any of the land in controversy? A. No.
“Q. This land then is wild1 and uncultivated timber land? A. Yes. The defendants’ possession consists in having parties to look after the land and to keep1 away trespassers.”

This is all the evidence in the ease.

I. There are but two questions presented for determination by this record — the first is, did the subsequently executed warranty deed of Henry Lee, the patentee, to John Yogal, dated March 7, 1860, and recorded in Shannon county, November 13, 1873, by virtue of its prior recordation, have the force and effect of conveying to said Yogal the title to the land in controversy by force and operation of our registry laws, and thereby invalidate the prior warranty deed executed'by said Lee, the patentee, to the defendants’ grantors, William P. Pumphrey and wife, dated November 10, 1858, but not recorded in Shannon county until July 21, 1874?

There is no pretense that Vo gal had any notice or knowledge- of the existence of the deed from Lee to William F. Pumphrey until long after his deed from Lee was executed and recorded; nor is there any question but what Vogal paid a valuable consideration for the land in controversy. In addition to these facts, the evidence shows that the land was wild and uncultivated, and was not in the actual possession of any one.

This identical question was presented to this court in the case of Strong v. Whybark, 204 Mo. 341, where the same sections of the registry act were construed. There the court said:

“There is no evidence whatever in this record tending to show that Josephine Hayden had any notice or knowledge of the execution of the prior unrecorded warranty deed from Seth D. Hayden to said Moore, at the time he made the quitclaim deed to her, nor is there any evidence of fraud or collusion between Seth D. Hayden and Josephine Hayden. Both William A. Moore and Josephine Hayden neglected for years to file their deed for record, as provided for by section 923, Revised -Statutes 1899, yet the latter filed her deed about six years prior to the time when he filed his.
“The statute provides that ‘no such instrument in writing shall be valid, except as between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record.’ [R. S. 1899', sec. 925.]
“According to the provisions of this section, the deed from Hayden to Moore was invalid and conveyed no title to the land in controversy in so far as Josephine Hayden was concerned, because she had no notice of its execution at the time she filed her deed for record. If the exception mentioned in the section just quoted was the only exception or limitation to that statute, then there would be no question as to the title of Josephine Hayden and those claiming under her, but the courts upon principles of equity and justice have repeatedly held that if the subsequent purchaser either had notice of the prior unrecorded deed, or if he was a purchaser without having paid a good and valuable consideration for the land, then he would take nothing by his purchase and deed. [Maupin v. Emmons, 47 Mo. 304; Aubuchon v. Bender, 44 Mo. 560.] The question that now presents itself is, was Josephine Hayden a purchaser of the land in question for a good and valuable consideration'? The deed recites that the conveyance was made for and in ‘consideration of natural love and affection and five dollars to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged. ’
“A valuable consideration is defined to be money or something that is worth money. [2 Washburn on Real Prop. (4 Ed.), p. 394; 1 Chitty on Contracts (11 Am. Ed.), 27.] It is not necessary that the consideration should be adequate in point of value. Although small or even nominal, in the absence of fraud it is enough to support a contract entered into upon the faith of it. [Forbs v. Railroad, 107 Mo. App. l. c. 674; Marks v. Bank, 8 Mo. 316; Ridenbaugh v. Young, 145 Mo. l. c. 280; Blaine v. Knapp & Co., 140 Mo. l. c. 251; Anderson v. Gaines, 156 Mo. 664; Green v. Higham, 161 Mo. 333; 6 Am. and Eng. Ency. Law (2 Ed.), p. 694, par. 5.] It seems to us that it would be a useless waste of time and energy to cite authorities in support of the proposition that five dollars or any other stated sum of money in excess of one cent, one dime, or one dollar, which are the technical words used to express nominal considerations, is a valuable consideration within the meaning of the law of conveyancing.”

The facts of the case at bar present a much stronger case in favor of the plaintiffs than did the facts in the Strong-Whybark case, for the reason that here there is no question but what Yogal paid a valuable consideration for the land; and1 his muniment of title is a warranty deed, while in Strong’s it was á quitclaim deed.

The fact that the deed from Lee to William F. Pumphrey was recorded in Oregon county prior to ■the date when Yogal’s deed was executed and recorded in Shannon county, where the land was located, does not alter the application of the rule of law as before stated, for the reason that the record of a deed only imparts notice to subsequent purchasers when the deed is recorded in the county where the land is situate, and this deed to Pumphrey was not recorded in Shannon county until after the plaintiffs and their grantors acquired the title from Lee.

That case being upon all-fours with this one, it must control us in disposing of the question previously propounded. We, therefore, 'hold that Yogal took the legal title to the land by virtue of his deed from Lee as against William F. Pumphrey; and1 that its recordation under the registry act imparted notice to all subsequent purchasers, which include defendants and their grantors.

II. The only other question remaining for determination, is the question of the Statute of limitations.

While respondents have filed no brief in this court, nor are they represented here by counsel, yet we presume the Statute of Limitations was one of the defenses made by the defendants at the trial in the circuit court; and our reason for so, supposing is predicated upon the fact that the record preserves the evidence before quoted, bearing upon the possession of the land, and showing that they paid the taxes thereon. But be that as it may, the only evidence introduced tending to show adverse possession is the testimony of the witness, Henry Pumphrey, before set out in haec verba.

Upon this state of the record the question naturally presents itself, is that evidence sufficient to show title in defendants by adverse possession under the ten-year Statute of Limitations? We think not. While it is true the witness stated that he and those through whom he claims title, had “been in the possession of the land in controversy for about thirty-five years,” yet .that was clearly the expression of his own conclusion as to who had the possession thereof, for the reason that the record conclusively shows that none of them lived upon or near the land, nor any one else for that matter lived upon the land; nor did they or any one for them ever, at any time, exercise any act of ownership over the land or any part of it except to pay taxes on it, which fact will he presently noticed; hut, upon the contrary, it is conclusively shown that the land was wild, uncultivated timber land.

This same witness testified that he and his grantors had paid the taxes on this land since 1858.

We have fully stated all the evidence hearing upon the question of adverse possession, and we have no hesitancy in holding that it is wholly insufficient, under the repeated adjudications of this court, to make out title by adverse possession.

Having reached the conclusion in the former paragraph of this opinion that the legal paper title to the land in controversy was in plaintiffs, then it must follow from the decisions of this court which hold that the title of the real owner of land cannot he transferred to a stranger simply by his payment of taxes thereon for the time required to give title by adverse possession under the Statute of Limitations. [Chapman v. Templeton, 53 Mo. 463; Bollinger v. Chouteau, 20 Mo. 89; Cashman v. Cashman, 50 Mo. App. 663; Id., 123 Mo. 647.]

The judgment is, therefore, reversed, and the cause remanded with directions to the circuit court to enter judgment for plaintiffs in conformity to the prayer of the petition.

All concur.