author: GANTT, J.

text:
    TOBITHA GRAHAM v. DANIEL KETCHUM, Appellant.
    Division Two,
    December 12, 1905.
    1. APPELLATE PRACTICE: Agreed Facts: No Instructions. An agreed state of facts in an ejectment suit, although no instructions were asked or given, occupies the same footing as a special verdict, and the judgment thereon will not be reversed unless the court’s conclusions as to the law upon said facts were incorrect.
    2. LIMITATIONS: Dower. So long as the widow lives, to whom was assigned dower in the lands of her husband, his heirs have no right to the possession thereof.

      3. -: -: Married Female Heir: Right to Possession. And if after the death of the husband and the assignment of dower to the widow, his son died leaving a widow and children and those children died leaving their mother as their heir, and she married again while the other widow’s dower was still in existence, the Statute of Limitations did not begin to run against her on the death prior to 1889 of the endowed widow, or at any time thereafter during the life of her husband, whether she lived with or separate and apart from him, for during the marriage he was, under the statute in force between 1865 and 1889, entitled to the possession of her lands. And that was a vested right, and having accrued prior to the Married Woman’s Act, was not taken away by that act. And though defendant may have had actual adverse and continuous possession for ten years prior to the bringing of her ejectment, she is not barred if her suit was begun within ten years after her disability of coverture was removed.
    4. -: Who Are Barred. Notwithstanding ,the sweeping and exclusive language of the ten-year Statute of Limitations (sec. 4262, R. S. 1899), no person is barred thereby from maintaining ejectment except such as have a present existing right to enforce an action or make an entry.
    5. -: Ejectment: Wife's Lands: Proper Plaintiff: Effect of Statute as to Rents. The husband is the proper party to sue in ejectment for the possession of the wife’s lands where the right to sue therefor accrued prior to the enactment of the Married Woman’s Act of 1889. His right to possession was not affected by the statute (sec. 4339, R. S. 1899) which provides that the rents, issues and products of the real estate of a married woman shall during coverture be exempt from attachment or execution for the sole debts of her husband.
    6. -: -: -: Possession: Curtesy. The husband’s right to the possession of the wife’s lands during coverture does not and did not prior to 1889 depend upon an existing curtesy initiate.
    7. -: -: -: Married Women’s Act: Prospective. The Married Woman’s Act of 1889 was prospective and all property rights acquired by the husband prior to that enactment remained as they were at common law and in this State before the act was passed.
    8. -: -: -: When She is Barred. The wife has ten years after disability of coverture is removed to bring suit in . ejectment for her lands for which while the marital relation existed her husband alone had the right to sue. The fact that he was entitled to the possession and neglected to sue therefor, did not compel her to sue within three years after her disability was removed. Nor does the fact that defendant, at the time her suit was brought, had been in actual adverse and continuous possession for ten years since her husband’s right to sue for possession accrued, bar her action of ejectment, if brought within ten years after his death. Her husband being entitled to possession when the right of action accrued, the Statute of Limitations did not begin to run against her while she was a married woman, whether she lived separate and apart from him or not. [Distinguishing Wheelock v. Overshiner, 110 Mo. 100; Gray v. Yates, 67 Mo. 601; and Reed v. Painter, 145 Mo. 354.]
    9. -: -: Disability Removed: Married Woman: Minor: Three Years. When real estate descends to a minor he has the immediate right to possession and his right of action in ejectment accrues then, and the three-year Statute of Limitation may be invoked against him, if he fails to sue within three years after he attains his majority and the action is otherwise barred; but the three-year statute cannot be invoked as a bar to a married woman’s action of ejectment whose husband during her coverture was entitled to possession, for the simple reason that while coverture existed her right to possession, and hence her right of action, did not accrue. [Distinguishing Reed v. Painter, 145 Mo. 354.]
    10. -: -: -: Wife Living Separate From Husband. The fact that the wife at the date of her husband’s death in 1893 was living separate and apart from him and had been for five years, did not impose on her the obligation to sue in ejectment for her lands to which her husband was entitled to possession, nor did it cause the Statute of Limitations to begin to run against her until after his death.
    Appeal from Daviess Circuit Court. — lío». J. W. Alexander, Judge.
    Affirmed.

      HicMin, Leopard <& HicMin for appellant.
    Plaintiff’s suit having been brought more than ten years after the death of Mary McCully and more than three years after the death of David Graham, was barred by the Statute of Limitations, and the finding and judgment should have been for defendant. Sec. 4265, R. S. 1899, Wheelock: v. Overshiner, 110 Mo. 100.

      Boyd Dudley and Thos. A. Games for respondent.
    (1) Wheelock v. Overshiner, 110 Mo. 100’, is the only case cited and relied upon as authority hy appellant. While among other questions decided, it, in a measure, supports appellant’s contention that the widow does not have full ten years after the removal of the disability of coverture in which to bring suit, yet, it seems to be a sporadic case, and, so far as prior and subsequent adjudications are concerned as to the question at bar, like the mule, without either “pride of ancestry or hope of posterity.” Let us examine this case briefly. First. The question of the husband’s marital right to the possession of his wife’s land, was neither raised, discussed nor referred to in any manner. Second. The finding of the court (page 113) that the plaintiff had been in possession for more than ten years “after Mrs. Brittain’s right of action accrued,” was based solely on the fact, that he had, in fact, been in possession for more than ten years, without any discussion, consideration or reference to the questions as to when her right of action accrued, or whether she had a right of entry or possession while her husband was still living and coverture existed. It is clear that these questions, together with the question as to her husband’s sole right of possession by virtue of his martial rights, were not called to the attention of the court and were overlooked. Third. The ruling of the court that she had only three years after the disability of coverture was removed by the death of her husband, in which to bring suit to -recover, is based solely on the case of Gray v. Yates, 67 Mo. 601. In that case, the holding is, that a minor has only three years after his disability of minority is removed in which to bring suit. This involves an entirely different principle from that in the case at bar, for the reason that, where an estate descends or the right accrues to a minor, during minority, he has the immediate right of entry and possession, while with a married woman, under the law as it existed at that time, if coverture exists, the right of entry or possession did not accrue until the disability of coverture was removed. The right of possession was in the husband alone. The right of entry and action, his alone. He alone had the right to. sue in ejectment, and she had to wait until, by the providence of God or the benign decree of the court, the marital relation ceased and coverture ended. Under the law as it exists now, since the full emancipation of married women, she is the absolute master of her separate property, acquired by inheritance, gift or purchase. This law, however, has no retroactive effect, and under the law as it existed then, and which governs this case, like Moses of old, she was not permitted to enter the promised land, or taste the sweet fruits of her ownership. She could only go up into the “mountain of Nebo, to the top of Pisgah; ’ ’ there to be shown all the land of Canaan— valley and plain — mountain and palm tree — even to the uttermost sea. And the law said to her, as the Lord said to Moses, “I have caused thee to see it with thine own eyes, but thou shalt not go over thither.” As the Gray case, supra, was the sole basis for the ruling in the Overshiner case, and as it turned upon an entirely different principle, and as no other case existed announcing the same principle, the Overshiner case, was, as to the question at bar, wholly without authority. Since that opinion was rendered,seventy volumes have been added to the reported decisions of this court. Many cases have been passed upon, involving the same and similar legal propositions, and only twice has this ease been referred to on this point. Once in the case of Reed v. Painter, 145 Mo. 354, wherein it was held that the wife had the right of action for injury done to her inheritance or the integrity of her fee simple title to her lands, and, again, in the case of Overshiner v. Brittain, 169 Mo. 353, on the question of res adjudicata, but never, as sustaining the doctrine contended for by appellants in this case. Both before and since that case this court has held, on every occasion where the question was squarely presented, that the husband’s right of possession prevented the married woman from having either right of possession or entry until coverture ceased and that she had ten years after her disability ceased in which to bring suit. Dyer v. "Wittier, 89' Mo. 81; Smith v. Patterson, 95 Mo. 529; Bradley v. Railroad, 91 Mo. 498; Pirn v. St. Louis, 122 Mo. 665; Hall v. French, 165 Mo. 440. (2) The law is well established in this State: First. That prior to the passage of the Married Woman’s Act the- husband’s right of possession of his wife’s land was a common law right, existing by virtue of the marital relation. Second. That it was a vested right and could not be taken away by the Married Woman’s Act. Third. That the husband’s right to possession was exclusive. Fourth. That the wife’s right of action or entry was postponed until the death of her husband, and that she was not entitled to commence or maintain any action, and had no right of entry or possession so long as her husband lived and the marital relation continued. Lessee of Thompson’s Heirs v. Green, 4 Oh. St. 216; Dyer v. Wittier, 89 Mo. 81; Leete v. Bank, 115 Mo. 184, and 141 Mo. 574; Flesh v. Lindsay, 115 Mo. 17; Arnold v. Willis, 128 Mo. 151; Barns v. Bullock, 129 Mo. 120 ; Smith v. White, 165 Mo. 596; Hall v. French, 165 Mo. 438; Yanata v. Johnson, 170 Mo. 274; Chew v. Kellar, 171 Mo. 223. And .the fact that the husband and wife did not live together for a time before his death does not affect the common law right of the husband to the possession of the wife’s property. Throckmorton v. Pence, 121 Mo. 58.
   GANTT, J.

This is an ordinary petition in ejectment for an undivided one-eighteenth interest in the northeast quarter of the southwest quarter and the northwest quarter of the southeast quarter of section twenty-two in township sixty of range twenty-nine, in Daviess county, Missouri.

Defendant pleads the ten-year Statute of Limitations, claiming actual, continuous, adverse, notorious, visible and exclusive possession of the premises sued for, for more than ten years before the commencement of this suit. Also a general denial of all matters in plaintiff’s petition.

The reply consists merely of a general denial of new matter set up in defendant’s answer.

On September 12, 1902, plaintiff by leave of court filed her petition and defendant entered his appearance, the .cause continued, and on December 8, 1902, defendant filed answer. On December 12, 1902, this cause was submitted to the court, evidence heard and continued under advisement. And on the 22nd day of April, 1903, judgment was duly rendered for plaintiff for one-eighteenth of the land described in plaintiff’s petition, and for one cent damages and for seventy-five cents monthly rents and profits; and on the same day defendant filed his motion for a new trial; which was one the same day, by agreement of the parties taken up. and considered by the court and overruled. On the same day defendant made application for appeal to the Supreme Court of Missouri, which was granted, and defendant was allowed until and during the September term, 1903, of the court to file a bill of exceptions ; and on the 16th day of September, 1903, the same being the ninth day of the September term, 1903, of said court, defendant filed his bill of exceptions, which was signed and sealed by the judge of the court and made a part of the record in this cause. The cause was submitted to the-court on the following agreed statement of facts:

“It is admitted that Taylor McCully is the common source of title.
That Mary McCully was the widow of Taylor McCully, and that Taylor McCully died in 1858.
“That his widow, Mary McCully, died in 1888.
“That Perry McCully was one of the sis children of Taylor and Mary McCully.
“That Perry McCully was married to this plaintiff in 1846.
“That said Perry and this plaintiff by said marriage had three children, that is, Mary N., John and Samuel McCully, born after said marriage.
‘ ‘ That said Perry McCully died on the 5th day of May, 1862, leaving this plaintiff, his widow, and said three children as his sole heirs.
“That said John McCully died in 1865, and said Samuel McCully died in 1865, leaving as their heirs their mother, this plaintiff and their sister, the said Mary N.
“That after the death of the said Perry McCully plaintiff became the wife of David Graham on’the-day of----, 1867.
‘ ‘ That said David Graham died on the--day of April, 1893.
“That the interest of the plaintiff in the land in question, if any she has, is one-eighteenth, inherited from her two children, John and Samuel McCully.
‘ ‘ That the rental value of said land is $2 per acre per annum.
“That the plaintiff and her husband, David Graham, were at the date of his death living separate and apart and had been so living for five years, but were not divorced.
‘ ‘ That no issue was bom of the marriage between plaintiff and said Graham.
“That the defendant and those under whom he claims have been in possession of the land in question claiming to own the same adversely, for more than ten years prior to the bringing of this suit.
“That the defendant had no notice of plaintiff’s claim to said land, or any interest therein, until the bringing of this suit the--day of March, 1902.
“That the land in controversy, with other lands, was assigned to Mary McCully, as dower, and that she remained in possession thereof until her death.”

This was all the evidence offered in the case that in any manner pertains to the question raised by this appeal. The finding and judgment was for the plaintiff. And afterwards on the 22nd day of April, 1903, the same being the ninth day of the April term, 1903, of said court, and within four days after the trial, defendant filed his motion for a new trial, which, omitting caption, is as follows:

“Now comes the defendant in the above-entitled cause and moves the court to set aside its finding and judgment therein and grant him a new trial for the following reasons: Because:
“1. The finding and judgment of the court is against the law and the evidence and against the law under the evidence.
“2. The finding and judgment of the court should have been against plaintiff instead of against defendant.
“3. The court erred in declaring the law as prayed for by plaintiff in declarations of law numbered. . . .
“4. The court admitted illegal and improper testimony offered by plaintiff.
“5. The court excluded legal and proper testimony offered by defendant.”

Which said motion for a new trial was, by agreement of the parties, taken up and considered by the court on said 22nd day of April, 1903, and by the court overruled, to which action of the court in overruling said motion for a new trial, defendant by his counsel duly excepted at the time.

I. No declarations of law were asked or given, but as the ease was submitted to the court upon an agreed statement of facts, such agreed case occupies the same footing as a special verdict and it became tbe duty of the trial court to give judgment upon tbe facts so found or agreed upon and unless its conclusion as to tbe law upon tbe said facts was correct its judgment must be reversed. [Munford v. Wilson, 15 Mo. 540; Gage v. Gates, 62 Mo. 412; Rannells v. Isgrigg, 99 Mo. 19.]

II. Tbe sole question involved in this case is whether tbe plaintiff’s right of action was barred by tbe Statute of Limitation.

Mary McCully by virtue of tbe assignment of tbe premises in suit as dower was a life tenent therein. So long as she lived, tbe heirs of Taylor McCully, her husband, bad no right of possession to tbe said lands, and she lived until 1888. In that year for tbe first time a right of possession accrued to tbe heirs, but at that time, tbe plaintiff herein was tbe wife of David Graham, and be by virtue of tbe marital relations, and not she, became entitled to tbe possession of tbe part of said lands which bad descended to her from her two sons, John and Samuel, in right of their father, Perry.

David Graham did not die until 1893, and until bis death, tbe plaintiff bad no right to possession or entry or action. Tbe sole question is whether she bad ten years after tbe death of her said husband, David Graham, in which to bring her suit, or three years only. If she bad ten years after her disability of coverture was removed by tbe death of her husband, then she can recover.

Section 4262, Revised Statutes 1899, provides that no action for tbe recovery of lands or for tbe possession thereof shall be commenced, bad or maintained by any person whatever, unless it appear that tbe plaintiff, bis ancestor, predecessor, grantor or other person under whom be claims was seized or possessed of tbe premises in question within ten years before tbe commencement of such action or suit.

In Dyer v. Wittler, 89 Mo. l. c. 86, it was said: “By common consent the proper construction of this statute is, that notwithstanding the sweeping language of the said section, no person is embraced in or contemplated by the first or any other section of that statute, except such as have a present existing right to commence an action or make an entry.” [Dyer v. Brannock, 66 Mo. 422; Johns v. Fenton, 88 Mo. 64; Harris v. Ross, 86 Mo. 89.]

And this statement of doctrine has subsequently been reaffirmed in Howell v. Jump, 140 Mo. 441; Shumate v. Snyder, 140 Mo. 77; and Hall v. French, 165 Mo. 430. In the last-mentioned case it is said: “No court has ever held that a right can be barred by limitation before the law permits the owner to come into court, for such a decision would be a solecism, a denial of due process of law, for it would not give the party ‘ a day in court. ’ ’ The first fact then to be determined; when the bar of the Statute of Limitations is interposed in a case, is, when did the cause of action accrue, and that is the vital question in this case, and the one over which the contest was waged in the circuit court. On the part of the plaintiff it is insisted that as it was admitted that Mary McCully, the widow of Taylor McCully, the common source of title to the land in question, held an estate for life by virtue of the assignment of her dower therein until she died in 1888, and at that time the plaintiff herein was a married woman, the wife of David Graham by virtue of his marital relation to the plaintiff became and was entitled to the possession of her interest in said lands, and .plaintiff had no right to possession, entry or action then existing, nor until his death in 1893, and that when he died she had ten 'years after his death to bring her action. Whereas the defendant, upon the other hand, insists that, conceding that at common law the husband, whether as tenant by the curtesy or by marital right only was entitled to the exclusive right to the possession o£ the wife’s lands during coverture, the act of the Legislature (now sec. 4339, R. S. 1899), first passed in 1865, so changed the common law right of the husband as to give the wife immediate right of possession, and that, therefore, upon the death of her mother-in-law in 1888, Mrs. Graham became entitled to the possession of her interest in the lands in suit and the cause of action for the possession thereof accrued to her, and the statute began to run against her in 1888, and was not deferred until 1893 at the death of her husband.

In Valle v. Obenhause, 62 Mo. l. c. 85, it was ruled: ‘ ‘ The husband is said to be jointly seized of his wife’s estate, and during the existence of coverture he is not tenant by the curtesy, but only seized by right of his wife, and if there is a disseizin, it is of the joint estate, and they must jointly bring an action to recover the possession. Under this view of the title of husband and wife in the lands of the wife, the Statute of Limitation will begin to run from the date of the disseizin against both.” But in Dyer v. Wittler, 89 Mo. 81, the decision in Valle v. Obenhause was overruled, and it was held that the right of possession and the right to sue therefor was by the operation of the marital law then existing transferred to the husband during his life, and consequently no right of action accrued to the wife or her heirs until her husband’s death, and in such case, the wife was not within the purview of either the ten or twenty-four year provisions of the Statute of Limitations, since she was,not, in the language of the latter section, entitled under the law to the possession and ex necessitate was not entitled to the right of action. That opinion has never been overruled, criticised or distinguished by any decision of this court since its announcement, but has been uniformly followed and approved.

In Bradley v. Railroad, 91 Mo. l. c. 498, Black, J., for the court, said: “No cause of action accrued to her until her husband’s death, and until that event the Statute of Limitations did not commence to run against her or her heirs. [Dyer v. Brannock, 66 Mo. 391.] He died in 1875, and the statute commenced to run at that time, but the period of ten years did not elapse between that date and the commencement of this suit, so that it is clear that the Statute of Limitations constitutes no defense to this action.”

In Pim v. St. Louis, 122 Mo. l. c. 665, Burgess, J., said: “If there was no actual possession taken of the land until after her marriage to her husband in 1865, her action was not barred, because it was brought within ten years after his death. [Bradley v. Railroad, 91 Mo. 493; Dyer v. Wittler, 89 Mo. 81.] ”

See, also, Smith v. Patterson, 95 Mo. l. c. 529; Hall v. French, 165 Mo. l. c. 440.

It is essential to keep in view that these decisions were made while the act of 1865, section 4339, Revised Statutes 1899, was in force. Since the passage of the act of 1865, above noted, this court has uniformly ruled that the husband was the proper party to sue in ejectment for the possession of the wife’s land and his right so to do was not affected by the act of 1865, which provided that the rents, issues and products of the real estate of any married woman should during coverture be exempt from attachment or levy or execution for the sole debts of her husband, and any conveyance made during coverture by said husband of such rents, issues and products or of any interest in such real estate, should not be valid unless the same be by deed executed by the wife jointly with her husband, and acknowledged by her in the manner .then provided by husband and wife.

In Arnold v. Willis, 128 Mo. 149, it was pointed out that by the amendment of the act of 1865 in 1889, section 4339 was for the first time changed so as to confer upon the wife the absolute right to all of her real estate so that thereafter she was entitled to sue for the possession thereof without joining her husband in the suit with her. In that case it was held that by section 6869, Revised Statutes 1889, the right of the husband to the possession of land belonging to the wife was materially changed and he was completely deprived of all right to the possession and control of the increase and profits thereof. It was significantly added: “But the fact that the right of plaintiff’s wife to sue in her own name for her separate property was conferred upon her by the Revised Statutes of 1889, did not deprive him [her husband] of a right already vested, that is, the right to the possession of the lots, from and after the death of Mrs. Ricker, at which time the right accrued. [Leete v. Bank, 115 Mo. 184.]” In Bains v. Bullock, 129 Mo. l. c. 119, Judge Macfarlane, speaking for this court, said: “These rights he had at common law, though the legal estate was vested in the wife. So it has been uniformly ruled by this court, before the revision of 1889, that the husband is the only proper and necessary party to maintain an action to recover possession of the land of the wife when she holds a legal, as distinguished from the separate or equitable, estate therein. [Peck v. Lockridge, 97 Mo. 558; Gray. v. Dryden, 79 Mo. 106; Cooper v. Ord, 60 Mo. 420.]” See also Vanata v. Johnson, 170 Mo. 269. This last-cited case reaffirms Arnold v. Willis, 128 Mo. 149, and it must be held in view of this unbroken line of authority that the contention of the defendant that since the passage of the act of 1865 and prior to 1889 the wife had the right of possession during coverture, is untenable.

Another contention of the defendant along this line is that Dyer v. Wittier only deprived the wife of the right of possession when the husband had an estate by the curtesy initiate. In Vanata v. Johnson, 170 Mo. 269, it was correctly ruled that the exclusive right of the husband to the possession of his wife’s lands during coverture “arose from the marital relation, and was not in any sense a right of enrtesy, initiate or otherwise, and did not depend upon the birth of a child.” And it is clear that Dyer v. Wittler, 89 Mo. 81, is not to be confined as defendant contends.

The right of David Graham to the possession of the lands in suit as the husband of plaintiff accrued to him prior to the passage of the act of 1889, and was a vested right which could not be taken away from him by the Married Woman’s act of 1889. [Arnold v. Willis, 128 Mo. 149; Vanata v. Johnson, 170 Mo. 269.] The Married Woman’s act of 1889 (sec. 6869 Revised Statutes 1889), was prospective, and as to all property acquired by the husband before the passage of that act, her husband’s rights remained as they were at common law, and in this State, before the act was passed. [Vanata v. Johnson, supra.]

Without further discussion, then, it must be held to be settled law in this State that the plaintiff had no right of possession at the date of the death of Mrs. McCully and the termination of her dower estate in the lands in suit, but that the right of possession and the right of action devolved upon her husband David Graham and remained in him until his death in 1893, at which time the plaintiff’s right of action for the first time accrued.

The only remaining question then is, did she have ten years or only three years after the death of her husband within which to bring her action for the possession? That she had ten years within which to bring her action after it accrued in 1893, we think there can be no doubt whatever. On every occasion where the ease was squarely presented that the husband’s right of possession prevented a married woman from having either right of possession or entry until coverture ceased, it has been ruled by this court that she had ten years after her disability ceased in which to bring her action. [Dyer v. Wittler, 89 Mo. 81; Smith v. Patterson, 95 Mo. 529; Bradley v. Railroad, 91 Mo. 498; Pim v. St. Louis, 122 Mo. 665.]

The only case cited to the contrary by the defendant is that of Wheelock v. Overshiner, 110 Mo. 100. A careful examination will show it was a personal action to recover damages for a breach of covenants of warranty and was not an action of ejectment for real estate. The question of the husband’s marital right to the possession of the lands warranted, was neither discussed nor referred to in any manner, either in, the briefs of counsel or the decision of the court. It is true that in the last paragraph of the opinion, the court does refer to the time when the ejectment suit was brought by Mrs. Brittain, the judgment in which resulted in her favor, and was made the basis of the action on Richards’ covenants of warranty, and says, “So that, from the evidence as it appears' in the record, when that suit was brought, the plaintiff and his warrantor had been in the peaceful, continuous, adverse possession, for more than ten years after Mrs. Brittain’s right of action accrued, and more than three years after her disability of coverture had been removed, by the death of her husband — a possession which gave him a title paramount to that of Mrs. Brittain, and which should have barred her action of ejectment. [Gray v. Yates, 67 Mo. 601.]” It is obvious that the court assumed that Mrs. Brittain’s action was brought more them ten years after her cause of. action accrued, and therefore, she had ten years within which to bring her action after her right of action accrued. Grant the premise that this conclusion was correct, that case is no authority for the position of defendant in this case that the plaintiff was bound to bring her action before it accrued, and within three years after her disability was removed, without regard to the time when her cause of action accrued. No effort was made in that case to overrule Dyer v. Wittler, 89 Mo. 81, or any of the numerous cases which followed it. If it was meant to say that the statute began to run against her while she was a married woman, it is obviously in conflict with all the said preceding cases, as we have already shown, and with all the subsequent rulings of this court both in banc and both divisions. The reference to Gray v. Yates, 67 Mo. 601, to sustain the statement in regard to three years after her disability had been removed is equally unfortunate, in this, that when an estate descends or the right accrues to a minor, he has the immediate right of entry and possession, and his action accrues then, while with a married woman under the law as it existed then, and as in this case when Mrs. Mary McCully died, the right of possession or action did not accrue during the coverture, and only accrued when the disability was removed. Gray v. Yates, was not authority for the ruling in Wheelock v. Overshiner. In Reed v. Painter, 145 Mo. 354-355, the Wheelock case was cited, but a reference to the Reed-Painter case will show that it was based upon the proposition that a cause of action accrued to Mrs. Painter during coverture for the fraudulent act of her husband in depriving her of her fee simple to her lands. [Walter v. Walter, 48 Mo. 140.] The case was correctly decided and distinguished from Dyer v. Wittler, but the reference to Wheelock v. Overshiner was .unfortunate, as it added nothing do the decision. Nothing in Over-shiner v. Britton, 169 Mo. 353, gives countenance to the proposition that the wife during coverture had a right of action for possession of her lands, in which she has only a legal estate, or that she had not ten years after her cause of action accrued within which to bring her suit if disseized.

In view of the decisions beginning with Dyer v. Wittler, 89 Mo. 81, down to the present, it must be apparent that Wheelock v. Overshiner, 110 Mo. 100, has never been treated by this court as overruling or impairing the established law on this question.

It remains to notice only one other fact stated in the agreed case, to-wit,"that “plaintiff and David Graham, her husband, at the date of his death were living separate and apart and had been for five years, but were not divorced.” This fact, even if it had amounted to such an abandonment as to authorize her to sue, did not impose an obligation on her to sue. She was still under coverture and was not compelled to sue and the statute did not begin to run against her, on that account. [Throckmorton v. Pence, 121 Mo. l. c. 58-59.]

The judgment of the circuit court was right and it is affirmed.

Burgess, P. J., and Fox, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    McKINNEY, Appellant, v. THE T. L. WRIGHT LUMBER COMPANY.
    Division Two,
    December 12, 1905.
    APPELLATE JURISDICTION: Title to Real Estate: Lumber. Although title to real estate may be incidentally, collaterally or necessarily inquired into for the purpose of settling the issues involved, yet if the judgment rendered by the trial court may be satisfied by the payment of money without affecting the title, the appeal is to the proper court of appeals. So that, where the suit is for lumber cut by defendant from plaintiff’s lands, and defendant in its answer acknowledges it cut certain lumber off of a'certain tract of land, but does not know whether the land belongs to plaintiff or to another named person, and offers to pay the money into court for the proper owner, the title to the real estate will not be adjudicated by the judgment, and the appeal is not to the Supreme Court on that ground.
    Appeal from Mississippi Circuit Court. — Hon. Henry C. Riley, Judge.
    Transferee to st. louis court op appeals.

      Charles D. Yancey for appellant.

      Jno. M. Atkinson for respondent.
   GANTT, J.

This is an appeal from a judgment of the circuit court of Mississippi county, in favor of the defendant. The petition of the plaintiff contains seven counts, for cutting and hauling logs, for breaking down mill dam, for loss of the use of a mill, rent of a storehouse, errors in taxes and interest paid, and for pine and gum timber sold, the whole aggregating $1,039.50.

The suit was commenced March 6, 1902, in the Ripley County Circuit Court. At the April term, 1902, of that court the defendant filed its answer. At the same term the plaintiff filed a reply to the new mátter contained in the answer, and a change of venue was awarded to the circuit court of Mississippi county, and the cause set for trial at the October term, 1902. At the October term, 1902, of the circuit court of Mississippi county, the cause was tried to a jury and a verdict rendered in favor of the defendant. At the same term, motions in arrest and for new trial were filed, heard and overruled, and an appeal granted to the Supreme Court of Missouri. It appears also that leave was given plaintiff to file a bill of exceptions within ninety days. The bill was not filed within the time, but Judge Riley extended the time twice, the last extension expiring on the 4th of March, 1903. No bill of exceptions was filed prior to the expiration of the last extension given by the court. This case is in this court by the short method of appeal.

It is now perfectly apparent that this court has no jurisdiction to hear and determine this appeal. • The amount claimed in the petition, in the aggregate, amounts to only $1,039.50. At the time this appeal was taken, the act of March 20, 1901, conferring jurisdiction upon the St. Louis and Kansas City Court of Appeals, of appeals and writs of error in all' cases where the amount in dispute exclusive of costs shall not exceed $4,500, had been passed and was in force. There is nothing in the petition or answer that suggests in the most remote manner any constitutional question, either State or Federal. The title of real estate is not involved, nor does the case in any way call for the construction of any of the revenue laws of this State, or any other grounds giving this court jurisdiction of the appeal.

We have said that the title of real estate was not involved. That we may not he misunderstood it is proper to state that in its answer to the seventh count of plaintiff’s petition, the defendant made the following allegation: ‘‘Defendant states that it cut and hauled 106,000 feet of pine timber off of the following lands, to-wit: The east half of the northwest quarter of section 10, township 24, range 3 east, which last-mentioned lands plaintiff had no title to at the time of said Contract, and has none now, and has not at any time since said contract was made; but defendant is advised and believes the title to said lands to have been then and now in Wm. O. Proctor. That on May 1, 1900, William. O. Proctor notified defendant that he was the owner of said lands, and also notified said defendant not to cut timber off of said land, and not to pay over any money to plaintiff or anyone else for the timber already cut on said lands. That after receiving said notice defendant ceased to cut any more timber from said lands. That up to the time of receiving said notice defendant had cut said amount of 106,000 feet of pine timber, amounting to $106, which said money defendant still has in his possession belonging to either said plaintiff or William O. Proctor, and which amount defendant here and now asks to pay into court and asks that he be discharged with his costs.”

The foregoing allegation is the only one that in any possible way can be said to raise a question involving the title to real estate. In Price v. Blankenship, 144 Mo. 203, this court reviewed the question here involved and held that although the title to real estate might be incidentally, collaterally or necessarily inquired into in a trial for the purpose of settling the issues involved, still if the judgment rendered by the trial court could be satisfied by the payment of money without affecting the title to real estate, the ease would not fall within our jurisdiction under section 12 of article 6 of the Constitution. It was further held that to give this court jurisdiction for this reason, the judgment to be rendered must directly affect the title to the real estate. [Cox v. Barker, 150 Mo. 424; Heman v. Wade, 141 Mo. l. c. 601; Hilton v. St. Louis, 129 Mo. 391.]

We think it is too plain for discussion that the above-mentioned answer of the defendant did not call for any adjudication of the court upon the title of the land from which the timber was cut. Obviously the title could only have been brought into the case incidentally for the purpose of determining to whom the defendant should pay the $106. It results therefore that this court is without jurisdiction to determine this appeal, and it is, therefore, ordered to be certified and transferred to the St. Louis Court of Appeals.

Burgess, P. J., and Fox, J., concur.


author: FOX, J.

text:
    SCHNITGER et al., Appellants, v. RANKIN et al.
    Division Two,
    December 12, 1905.
    1. TAX SUIT: Party Defendant. It is sufficient to bring a suit for taxes against tbe party who by the records appears to be the owner.
    2. -: Record Owner: Married Woman. Where a married woman was the record owner of land, and also the real owner, and her husband died, and she subsequently married, suit for delinquent taxes can not be delayed until the marriage records are searched to ascertain her surname as shown by her last marriage, but suit may be maintained against her in the name shown by the deed record.
    3. -: -: Suit Against Married Woman. A suit for taxes against land which the records show to be owned by a married woman may he brought against her by the record name. The fact that after her deed was recorded her husband died and she again married and thereby changed her name, does not make a publication of summons directed to her by her record name insufficient or the judgment invalid.
    4. -: -: -: Publication Against Married Woman. The record owner and real owner was Louisia Bomemann, as appeared by deed duly recorded in 1860 and she was at that time the wife of Alexander Bornemann who died in 1863. In 1864 she married Gustave Schnitger, who died in 1896. The suit for taxes was brought in 1883, by publication directed to Louisia Bornemann and-Bornemann, her husband. Eeld, first, that as the record owner of the land Mrs. Schnitger was Louisia Bornemann at the time the tax suit was brought, and the statute authorized the institution of the suit for taxes against her by that name; second, that the presumption will be indulged that she knew the record name by which she held the land and also that she had not paid her taxes upon it, and that the State would enforce its claim for such taxes; and, third, that, in an ejectment by her heirs against the purchaser, the sale under the judgment against her by that name carried her title.
    5. -:-: -: -: Dead Person. Summons by publication in a tax suit, where the record owner was a married woman and had changed her name by marriage, is not the same as a publication directed to a dead person.
    Appeal from Jefferson Circuit Court. — Hon. F. B. ' Bearing, Judge.
    Affirmed.

      Warren B. I sent) erg for appellants.
    Tire suit was against Louisia Bornemann and --Bomemann, lier husband, whereas her legal and correct name at the time was Louisia Schnitger the wife of Gr. Schnitger, and the summons by publication was against Bornemann. It will not be questioned that the court did not acquire jurisdiction of her first dead husband, nor as to her second husband who was not sued. Williams v. Hudson, 93 Mo. 524; Crosley v. Hutton, 98 Mo. 196 ; Waves v. Ewart, 99 Mo. 13. The law casts upon a woman upon her marriage the surname of her husband. Schouler on Husband and Wife, sec. 62; Draude v. Rohner Chair Co., 9 Mo. App. 249; Freeman v. Hawkins, 77 Tex. 498 ; Morris v. Tracy, 58 Kan. 137. From and after 1862, the date of marriage to Schnitger, there was no such person as Louisia Bomemann, but by virtue of the law the person who had answered to such name was now at law Louisia Schnitger,' and it would be a fraud for her to attempt to be known or use any other name than Schnitger, and a summons by publication, constructive service, would not give jurisdiction of her — thus making the proceedings absolutely void. Our courts say: “No one is served by publication who is not named, or, what amounts to the same thing, is incorrectly named.” Troyer v. Wood, 96 Mo. 476; Chamberlin v. Blodgett, 69 Mo. 482; Hartmann v. Hornsby, 142 Mo. 368; Corrigan v. Schmidt, 126 Mo. 311; Skelton v. Sackett, 91 Mo. 377; Moore v. Woodruff, 146 Mo. 597; Howell v. Jump, 140' Mo. 441.

      Byrns & Bean for respondents.
    (1) The law points the revenue officers of this State to the record for the evidence of ownership upon which to bring suit for back taxes. Sec. 9303, R. S. 1899’; Vance v. Corrigan, 78 Mo. 94; Cowell v. G-ray, 85 Mo. 169; State ex rel. v. Sack, 79 Mo. 661; Hilton v. Smith, 134 Mo. 508; Allen v. Ray, 96 Mo. 546. (2) There would be no safety in purchasing at judicial sales under judgments rendered after due process on female defendants, if the title of the purchaser could be defeated by proof, in a collateral action, that the defendant in judgment was a married woman. Freeman on Judgments (3 Ed.), sec. 150. (3) Judicial proceedings conducted and entered of record in due form, without fraud, bind the parties to them, whether the parties are capable of binding themselves or not; this is so with a woman under coverture. 2 Bishop on the Law of Married Women, sec. 386; Asbury v. O’Dell, 83 Mo. 267; Galbreath v. Rogers, 30 Mo. App. 406,
   FOX, J.

This cause is pending in this court upon an appeal by plaintiffs from a judgment in an ejectment suit of the Jefferson County Circuit Court in favor of defendants. The petition is the ordinary and usual one in cases of this character. The land involved is situated in Jefferson county, Missouri, and described as follows: The southeast quarter of section four, township forty-three, range four east, containing 160 acres.- The answer is a general denial, and also pleading the Statute of Limitations in bar of the action. The issues being thus joined, the cause was submitted to the court, without the aid of a jury, upon the following agreed statement of - facts:

“The fee simple title to the land in controversy was by deed dated in 1860 duly vested in Louisia Bomemann, who was then in truth and -fact the wife of Alexander Bornemann, which fact did appear by said deed which was duly recorded in deed records of Jefferson county, book R, page 144, in 1860. That Alexander Bornemann died in 1863, that they had one son Gustave Bornemann, whose wife is Ida Bornemann now living as her sole heir. That the suit as to Gustave Schnitger is hereby dismissed, he being a party plaintiff. That upon the death in 1863 of Alexander Bornemann, Louisa Bornemann, the owner of the fee simple title, became a widow. That in 1864 she married Gustave Schnitger and became Louisia Schnitger and remained such until her death in 1896, being then survived by her husband, G. Schnitger.
“That in 1878 a suit for delinquent taxes on the land in controversy was ¡filed in the circuit court of Jefferson county to enforce the tax lien upon said land, the suit being against Louisia Bornemann and --Bornemann, her husband; that in said suit no personal service was had on Lonisia Schnitger in any name, but that in said suit an order of publication was had in due form to Louisia Bornemann and--Bornemann her husband, which was published as required by law. That there was no service of any kind on Louisia Schnitger as such; that judgment was rendered and the land sold in accordance with law upon the publication aforesaid, and that Samuel Byrns received a deed to same from the sheriff under said judgment which was rendered in due time and the land sold by deed to defendants by said Byrns about the year 1887.
“That said Bryns and his assigns were not aware of the death of Alexander Bornemann in 1863 and of Louisia Bornemann being from 1864 to her death in 1896 Louisia Schnitger. That said Byrns and assigns have paid taxes on the land since their purchase in 1879. That defendants and those under whom they claim have had actual possession of the land in controversy since November, 1880, claiming title thereto and paying the taxes and doing other acts of ownership.”

Upon this agreed statement of facts plaintiffs asked the court to declare the law to be as follows:

“The court declares the law to be that the court acquired no jurisdiction over Louisia Schnitger in this case, for the following reasons: First. That the publication of a summons to Louisia Bornemann and--Bornemann, her husband, being a constructive service, would give the court no jurisdiction over Louisia Schnitger, a married woman, and at the time the wife of Gr. Schnitger. Second. That at the time the suit was filed and judgment rendered, being before July 1, 1883, a married woman could not be sued without her husband being joined, therefore, the court acquired no jurisdiction of Louisia Schnitger, her husband, Gr. Schnitger, not being sued, especially where as in this instance the service is constructive. Third. That ----Bornemann, husband of Louisia Bornemann, being dead, and she being a married woman, the wife of Gr. Schnitger, the court acquired no jurisdiction by constructive service of summons upon a dead husband and her by her wrong name.
“The court declares the law to be that Louisia Schnitger, wife of Gr. Schnitger, in whom the fee simple title was vested, was not entitled to the possession of the land, that right being in her husband Gr. Schnitger, she being under coverture and he by virtue of his right to the possession as her husband was a necessary •party and liable for the taxes on the land at the time of the institution of the suit involved in this case for delinquent taxes.
“The court declares the law to be that limitation does not run in favor of the defendants so as to bar plaintiffs from recovering.”

All of which instructions were by the court refused, and the cause being submitted to the court, a finding was made and judgment rendered in favor of the defendants. After an unsuccessful motion for new trial, plaintiffs prosecute their appeal from the judgment rendered to this court, and the cause is now here for our consideration.

OPINION.

Upon this record appellants assign numerous errors in the action of the trial court as a basis for the reversal of this judgment. There are but two- legal propositions involved in this controversy:

1. Did the order of publication confer jurisdiction upon the court in this proceeding?

2. Louisia Schnitger, formerly Louisia Bornemann, being a married woman at the time of the institution of the tax suit, and her husband, Gustave Schnitger, not being joined with her in the suit, did these facts, under the law in force at that time, render the judgment void and subject to attack in a collateral proceeding?

. While numerous other contentions are urged by appellants it is apparent that the solution of the propositions indicated settle this controversy. If the court acquired no jurisdiction by virtue of the tax proceeding indicated in the agreed statement of facts, and the judgment in that proceeding was void, then beyond dispute plaintiffs were entitled to recover. Hence it is apparent that the rights of the parties in this controversy depend entirely upon the regularity of the tax proceedings in which the State, at the relation of the collector, sought under the provisions of the statute, to recover the taxes due upon this land.

The statute, section 9303, Revised Statutes 1899, which is substantially the same as Revised Statutes 1879, has repeatedly been in judgment before this court. In Hilton v. Smith, 134 Mo. l. c. 508, in discussing the proposition as to the proper party against whom the suit for taxes should be brought, it was said by this court: “The owner, then, in contemplation of the statute, against whom the suit must be brought and thereafter prosecuted, is the actual owner, if known, or, if unknown, the apparent owner as shown by the records of the land titlés in the county. The law points the revenue officers of the State to these records for the evidence of ownership upon which to base their official action. The ownership includes all persons who have known or recorded interests in the land at the time the suit is commenced. The date of commencing the suit is the time fixed for determining the ownership. Persons who have neglected to make known their ownership, by record, or otherwise, will be presumed to have notice of the pendency of the suit and will be bound by the judgment therein. The suit proceeds against the property, and the collector is not required to add and bring in new parties as they make their interests known. Otoe holding an unrecorded instrument affecting the title to the land should not be allowed to defeat the objects of the law and obstruct the collection of the revenue by filing it for record before judgment of sale.”

In Allen v. Ray, 96 Mo. l. c. 546, this court, in treating this proposition, speaking through Brace, J., said: “In Vance v. Corrigan, 78 Mo. 94, it was held, under a statute requiring suits for the enforcement of liens for special taxes to be brought against the owner of lands, that a suit could be brought and a valid judgment rendered against the land by making the person, appearing by the registry of deeds to be the owner, party defendant to the suit, in the absence of notice that such person was not the true owner, and that a purchaser under the judgment in such suit in the absence of such notice would be protected in his purchase against the holder of an unrecorded deed from such apparent owner. The principle of this case, as applicable to a judgment in a suit for delinquent taxes under the general revenue laws of 1877, was recognized in State ex rel. v. Sack, 79 Mo. 661, and followed in Cowell v. Cray, 85 Mo. 169; Evans v. Robberson, 92 Mo. 192, and in Payne v. Lott, 90 Mo. 676. In this last case, it was further held that a suit brought against a person who appeared to be the owner of the land by the plat-book of the lands duly certified and on file in the county clerk’s office, as required under sections 6697 and 6703, Revised Statutes 1879, was within the principle of the foregoing cases. The principle upon which these cases rest is, that every person not having-actual notice as to who is the real owner of lands, has a right to rely upon the records provided by law to be kept for the purpose of showing that ownership; to give notice of that fact is the object of their existence. The law points the revenue officers of the State to these records of the evidence of ownership, upon which to base their official action in the assessment and collection of the revenue, and keeps them open for the inspection of the citizen, that his individual action may be guided thereby, and will uphold the action of either when based thereon in good faith without better information.” To the same effect is Cowell v. Gray, 85 Mo. 169; State ex rel. Hunt v. Sack, 79 Mo. 661.

Thus we have the law settled by these cases so far as the question is concerned as to who should be made a party to the tax proceeding — that it is sufficient to bring the suit against the owner as appears of record. It is conceded by the agreed statement of facts that Louisia Bornemann was the record owner in fee of the land in controversy, and had been since 1860. There is an entire absence from the record of any disclosure of her marriage to Schnitger, nor does the record disclose the name of any other person who was interested in this land. It is clear that if the State, under the provisions of law in force at the time of the institution of this tax proceeding, had to wait for the collection of its delinquent taxes until the marriage records of the various States in this Union could be examined to ascertain if some woman, who is the real owner, as well as the record owner, had not intermarried, so as to determine against whom to bring the suit, we confess that in cases of that kind, under the law as then existing, the taxes would re* main unpaid. This publication was directed to Louisia Bornemann, who, according to the agreed statement of facts, had intermarried with Gustave Schnitger. Louisia Bornemann and Mrs. Schnitger was one and the same person. As a married woman she was Mrs. Schnitger; as the record owner of this land she was Louisia Bornemann, and the statute, as repeatedly construed by this court, authorized the institution of this suit to enforce the collection of taxes, against the owner of the land as shown by the record. The very object and purpose of the construction of the statute authorizing the institution of the suit against the record owner, is to avoid delay and enforce the claim of the State in which it is sought to require property to contribute its due share toward the support of the government, which furnishes and affords due protection to such property. The presumption will be indulged that Louisia Bornemann knew the record name by which she held this land and also that, she had not paid her taxes upon it, and that the State would enforce its claim for such taxes.

Counsel for appellant insists that the same rule should apply to a publication where the record owner was a married woman and had changed her name by marriage, as is applied to a publication directed to a dead man. We cannot give our assent to.this contention. In the one case there is no living person upon whom the process can operate; in the other, there is a living person, and though her name be changed by virtue of marriage, yet she is one and the same person as the record owner of the land. The record owner was the proper party in this proceeding. The record, at the time of the institution of the tax proceeding, did not disclose that Mrs. Schnitger and her husband were the record owners of this land; hence, if the suit had been brought against them as husband and wife, they not being the record owners, the purchaser under a judgment rendered in that case, would have no protection against a party who should happen to have had an unrecorded conveyance from Mrs. Schnitger prior to her marriage, for the reason that it is only when the suit is brought in the name of the record owner, that the presumption attaches that the holder of such unrecorded conveyance has notice of the pendency of the suit, and would be bound by the judgment. Therefore, it is apparent that the purpose of requiring the suit to be brought against the record owner is a very significant one, and is important to purchasers at judicial sales under such proceedings. Again, the judgment in the tax proceeding was not void, for the record in that proceeding does not disclose upon its face that it was a judgment against a married woman. It was said in the case of Asbury v. Odell, 83 Mo. l. c. 267, that “the absolute nullity of a judgment rendered against a married woman obtains principally in cases in wbicb tbe record discloses her coverture and consequent inability to contract or incur tbe debt or liability for which tbe judgment is given.” Mr. Freeman, in bis standard work upon Judgments (4 Ed.), volume 1, section 150, in speaking of judgments of tbe character of tbe one rendered in this tax proceeding, says: ‘ ‘ There would be no safety in purchasing at judicial sales under judgments rendered after due service of process on female defendants, if tbe title of tbe purchaser could be defeated by proof in a collateral action that tbe defendant in tbe judgment was a married woman at tbe time of tbe institution of tbe suit, or that she. was incapable in law of contracting tbe debt for wbicb tbe judgment was rendered.” In treating of this subject, Bishop, in bis Laws of Married Women, volume 2, section 386, thus announces tbe rule: “Judicial proceedings, conducted and entered of record in due form, without fraud, bind tbe parties to them, whether those parties are capable of binding themselves out of court or not.” This doctrine as annnounced by Mr. Bishop, was quoted approvingly in Galbreath v. Rogers, 30 Mo. App. 401.

Tbe record in this case discloses that tbe owner of this land neglected for years and years to pay tbe taxes due tbe State and county upon it, and tbe State sought, in tbe manner pointed out by tbe statute, to enforce its claims for such taxes, and in 1879 tbe judgment was rendered in that proceeding. Mrs. Schnitger was alive for seventeen years after tbe rendition of this judgment, and there is an entire absence of any testimony that she asserted any claim or title to this land or made any complaint as to tbe validity of tbe judgment. Upon this state of facts it is perhaps not inappropriate to say that tbe courts do not look with favor upon claims of this character.

We have examined and fully considered the authorities cited by appellant, and it is sufficient to say that they in no way conflict with the conclusions reached in this case in respect to proceedings to enforce the lien of the State for bach taxes under the provisions of the statute. It is unnecessary to express an opinion upon the instructions refused; we have indicated our views upon the controlling propositions disclosed by the record, which results in the conclusion that the judgment was for the right party and should be affirmed.

All concur.


text:
    MOORE v. STEMMONS et al., Appellants.
    Division Two,
    December 12, 1905.
    APPELLATE JURISDICTION: Title to Real Estate: Execution. Tlie Supreme Court does not have jurisdiction over an appeal from a judgment or order overruling a motion to quash a levy of an execution upon real estate. Such a judgment or order does not so involve title as to give the Supreme Court jurisdiction of the appeal therefrom. It is the judgment itself, and not the enforcement of the judgment by a sale under execution to satisfy a claim against one who concededly has the title, that confers jurisdiction on the appellate court. [Following Lawson v. Hammond, 191 Mo. 522.]

    Appeal from Jasper Circuit Court. — Hon. J. D. Perkins, Judge.
    TrANSFERED TO KANSAS CITY COURT OF APPEALS.

      Shannon S Shannon for appellants.

      C. W. Bigger for respondent.
   GANTT, J.

This is an appeal from the judgment of the circuit court of Jasper county, overruling a motion of the defendants to quash an execution levied by the sheriff of said county, on certain real estate held by the defendants as trustees of the Methodist Episcopal Chnrch (colored) of Carthage, Missouri, under a judgment of said circuit court against the defendants as trustees of said church, for $166.52 for debt, damages and costs. The grounds of the motion are: 1st, that the judgment upon which the execution was issued was void; 2nd, that the interest of the defendants in the real estate levied on in their representative capacity as trustees of the church is not subject to levy and sale for plaintiff’s debt; 3rd, because the title of defendants in and to said real estate as trustees of the Methodist Episcopal Church (colored), of Carthage, Missouri, is held for the use and benefit of the Methodist Episcopal Church of the United States of America as a place of worship and not for the use and benefit of the Methodist Episcopal Church (colored), of Carthage, Missouri.

I. Has this court jurisdiction of this appeal under the Constitution of Missouri. It is obvious that the amount involved does not give us jurisdiction. It can only be surmised that the appeal was certified to this court on the ground that the title to real estate was involved. At the time this appeal was certified to this court, there were two decisions of this court, McAnaw v. Matthis, 129 Mo. 142, and Stinson v. Call, 163 Mo. 323, which justified such action, but in the recent decision of Lawson v. Hammond, 191 Mo. 522, handed down by Division No. One of this court, both of said decisions in McAnaw v. Matthis, and Stinson v. Call, supra, were reviewed and overruled.

The McAnaw-Matthis decision was promulgated in 1895 by Division No. 1. The appeal was from a judgment of the circuit court quashing an execution, levied on real estate of defendant, claimed as a homestead. The St. Louis Court of Appeals certified the cause to this court on the ground that title to real estate was involved, and Division No. 1 of this court announced that “in this opinion we coincide,” and cited as a precedent St. Louis v. Brooks, 107 Mo. 380. Afterwards, when Stinson v. Call, 163 Mo. 323, came before this Division, we accepted tbe ruling in McAnaw v. Matthis as controlling, and did not otherwise undertake to sustain our jurisdiction. Later, in State ex rel. v. Elliott, 180 Mo. 658, Division No. 1 of this court overruled McAnaw v. Matthis. In Lawson v. Hammond, Division No. 1, having this point again before it for review, submitted to this Division whether it should be transferred to the Court in Banc, but as we were all agreed that the decision was correct, and as Division No. 1 was simply correcting its own ruling which we had followed, it was thought entirely unnecessary. We deem it useless to attempt to add anything to the very satisfactory and conclusive opinion of Marshall, J., in the Lawson case, and following the rule therein announced it must be held that we have no jurisdiction of this appeal and that the title to real estate is not involved. “If,” as said in Lawson v. Hammond, “title to real estate is involved in this case, then it is involved in every case where an execution is issued upon a general, judgment and levied upon real estate, for in every such case, if the real estate is sold to satisfy the execution, the title will thereby be divested out of the defendant .and vested in the purchaser, but such is the effect wherever the property of the defendant is sought to be sold to satisfy the claims of his creditors. There is a vast difference between a judgment in a case involving title to real estate and an execution under which real estate may be sold. In other words, it is the judgment which must affect the title and not the enforcement of the judgment by a sale under execution to satisfy a . claim against one who concededly has the title, that confers jurisdiction. ’ ’

It is ordered that this appeal be transferred to the Kansas City Court of Appeals.

All concur.


text:
    THE STATE ex rel. WARD v. LINNEY, Appellant.
    Division Two,
    December 12, 1905.
    1. TAXES: Assessment: Insufficient Description. A taxbill wbicb describes a certain three-fourths of an acre in the southwest quarter of the southwest quarter of a certain section as “.75 a pt S ¥ 4, S ¥ 4, sec. 17, town 61, range 24” in the city of Trenton, State of Missouri, will not support a judgment for taxes. The description is too vague and uncertain.
    2. -: -: -: Cured by Petition. The fact that the land is correctly described in the petition will not cure the defective assessment and taxbill. On the contrary, it affords proof that the land might have been correctly described in the assessment and taxbill.
    Appeal from Grundy Circuit Court. — Ho». P. G. Stepp, Judge.
    Reversed.

      S. S. Kelso and W. B. Linney for appellant.
    The court erred in admitting extrinsic evidence to cure defective description in the assessment and back taxbill. An accurate description of land is necessary to a valid assessment of a tax thereon. State ex rel. v. Burrough, 174 Mo. 700'; State ex rel. v. Railroad, 114 Mo. 1; State ex rel. v. Mission Free School, 162 Mo. 332; State ex rel. v. Thompson, 149 Mo. 441; State ex rel. v. Sanford, 127 Mo. 372; Western v. Flannigan, 120 Mo. 61; City of Jefferson v. Whipple, 71 Mo. 520; Abbott v. Lindenbower, 42 Mo. 162; sec. 7555, R. S. 1899.
    H. J. Bain for respondent.
    (1) There is no technical rule as to the description of land; as land cannot pass bodily, it is only necessary that it be sufficiently described to identify it. If the instrument itself does not identify it, it is sufficient if it refers to other instruments, documents, or records which do describe it. Nelson v. Broad-hack, 44 Mo. 603; Brown v. Walker, 11 Mo. App. 234; Adkins v. Moran, 67 Mo. 100; McPike v. Allman, 53 Mo. 551. (2) The law does not require that assessors shall describe in their assessment blanks miscellaneous tracts by meandering lines or their metes and bounds. The general revenue law only provides that these tracts shall be described briefly and shall indicate the quantity and location thereof. Sec. 9168, R. S. 1899. And the statute provides that in all records, certificates and other papers used in making out taxes, letters or figures may be used to denote parts of sections or other subdivisions of real property, and when stated in figures, letters or characters shall be deemed and held to be fully and fairly stated as though the same had been written out in full. Sec. 9328, R. S. 1899. And the enforcement and collection of taxes in citiesof the third class shall be made in the same manner as is provided by law in case of State and county taxes. Sec. 5812, R. S. 1899. (3) This tract of land was assessed as the James Merritt tract in section 17, township 61 of range 24 and was described in full in the petition. But even if there were any uncertainty in the description as to the quantity or location of this James Merritt tract, the public records of the county were easily accessible to ascertain or make certain everything concerning it. Upon the principle, that that is certain which can' be made certain, the court committed no error in holding that the land was sufficiently described and liable for the tax . Nelson v. Broadhack, 44 Mo. 596 ; Brown v. Walker, 11 Mo. App. 226; Hammon v. Johnson, 93 Mo. App. 214. (4) The purpose of the tax-bill is to show the fund to which- the tax belongs. In a suit to collect back taxes it is the petition and not the tax bill which must set out the cause of action. State ex rel. v; Rau, .93 Mo. 126; Vaughan v. Daniels, 98 Mo. 230; O’Day v. McDaniel, 181 Mo. 535. The numbers or description of the land are not specifically called for or required by the statutes to be set out in the tax-bill. Vaughan v. Daniels, 98 Mo. 233. The assessment is the basis of the tax. But if a defect in the assessment is relied on to defeat the tax, it must relate to the records of the assessor and not to the tax-bill. In this State the assessment of property is made by the assessor by calling on the tax-payer and obtaining from him a list of his taxable property and its value. Rich Hill Mining Co. v. Neptune, 191 Mo. App. 438; State ex rel. v. Spencer, 114 Mo. 574. (5) Where land against which the lien for taxes is sought to be enforced is specifically described in the petition and tax-bill, and the tax-bill and other evidence identify it so there can be no‘mistake, the judgment of the court finding the tax to be due on such land, will be affirmed. State ex rel. v. Cowgill, 81 Mo. 381; O’Day v. McDaniel, 181 Mo. 535.
   GANTT, J.

This is an appeal from a judgment of the circuit court of Grundy county, enforcing the lien of the city for taxes due and owing on certain real estate belonging to the appellant in the city of Trenton, in Grundy county. The taxes were for the years 1898 and 1899. The petition describes the land, as lying and situated in the city of Trenton, county of Grundy, State of Missouri, to-wit: “a part of the southwest quarter of the southwest quarter of section 17, township 61, range 24, being within the following metes and bounds, to-wit: commencing 22 rods south of the northwest comer of the southwest quarter of the southwest quarter of said section, running thence east 9 rods, thence south 13 rods, 16 feet and 3 inches, thence west 9 rods, thence north to the place of beginning.” The certified tax bill offered in evidence, described the land as “.75 a pt S W 4, S W 4, sec. 17, town 61, range 24,” in the city of Trenton, State of Missouri. When this tax-bill was offered in evidence, the defendant’s counsel objected to the same on the ground that the description was too vague and indefinite to describe the land and support a judgment. This objection was overruled, and the defendant duly excepted. The plaintiff also offered evidence tending to show that this land belonged to Daniel Merritt, and that he had conveyed the three-fourths of an acre described in the petition by the same description, to James Merritt, and that afterwards all the right, title and interest of James Merritt in said lands by the same description had been conveyed by the sheriff of Grundy county to William Mitchell, and that after-wards William Mitchell had conveyed the same by the same description to the defendant Mrs. Linney, and all three of said deeds were duly recorded in the recorder’s office of Grundy county.

At the close of the plaintiff’s case, the defendant demurred to the evidence, which demurrer was overruled and the defendant excepted, and thereupon judgment was rendered for plaintiff. Neither party introduced any evidence to show that the lands in suit were more specifically described in the assessment books.

. I. Prima facie the certified taxbill conformed to the assessor’s books and the tax book certified to the collector. By section 9170, Revised Statutes 1899, it is provided that the assessor’s book in the third column should “contain an accurate description of the land by the smallest legal subdivisions or by smaller parts, lots or parcels, when sections and the subdivisions thereof are subdivided into parts, lots or parcels.” It is further provided that “at the close of each of the owner’s list, the assessor shall place all the lands that appear to belong to the said owner, which cannot be properly described by numerical order, as contemplated in this section, which shall he otherwise properly described, indicating the quantity and location thereof.” It has heen consistently rnled by this court beginning with Abbott v. Lindenbower, 42 Mo. 162, that a valid assessment is essential to a valid tax. and as the statute requires an accurate description, the assessment must contain an accurate description of the land to be taxed. As this court has so recently reviewed this subject in State ex rel. v. Burrough, 174 Mo. 700, we deem it a work of supererogation to again repeat what is said there. The assessment in this case simply describes the land as .75 of an acre in a certain 40-acre tract. That such a description is too vague and uncertain to constitute the basis of a legal assessment, we think is perfectly plain. The fact that the land is correctly described in plaintiff’s petition cannot validate the defective assessment and taxbill. And we must hold the assessment and the taxbill is utterly inadequate to sustain the judgment in this case. That the land in this case was susceptible of a perfectly accurate description is demonstrated by the petition in the case and the several deeds of record in Grundy county, so that it appears that there was no excuse for not having described the land accurately as required by the statute in the assessment of it. It follows that the judgment of the circuit court must be reversed, and it is so ordered.

Burgess, P. J., and Fox, J., concur.