author: GEAVES, J.

text:
    AMALGAMATED ZINC and LEAD COMPANY, Appellant, v. BAY STATE ZINC MINING COMPANY.
    Division One,
    May 31, 1909.
    3. FOREIGN CORPORATION: Capacity to Sue: License After Suit Brought. A foreign corporation cannot come into this State, open up a place of business and carry on in this State, a part of the business authorized by its charter, in violation of the law requiring it to first have a license to do business in this State, and then after it has instituted suit to enforce its right to property in this State maintain said suit by obtaining a license from the Secretary of State.' It has no right to institute suit unless it has a license from the State; and non-compliance with the statute before the suit is brought is not cured by a compliance before trial.
    2. -: -: Capacity to Contract: Non-Enforceable. An assignment of a lease of Missouri mining lands, made in this State, to a foreign corporation which has not been licensed to do business in this State, and to be wholly performed in this State, cannot be enforced by said corporation in the courts of this State. Such assignment is absolutely void, and a subsequent compliance with the statute thereafter by taking out a license from the State, and the obtaining of a new lease from the land-owner after the suit was brought, did not validate it; and its contract being invalid, the company is entitled to no relief thereunder at the hands of a court of equity in a suit to enjoin another company from mining ore from the leased lands.
    3. -: Lease: Assigned to Trustee. A mining lease from the land-owner to a private person, as trustee, for a foreign corporation, which has not been licensed to do business in this State, and which at the time was carrying on the business of mining on the lands covered thereby, and subsequently by written instrument transferred to the company, stands on the same footing as if it had been made directly to the corporation, and cannot be enforced. And a suit to enjoin another mining company from mining ore from the lands cannot be maintained by said foreign corporation, even though after the suit is brought and before trial such corporation obtains a license from the Secretary of State to do business in this State and .also obtains a new lease from the landowner.
    Appeal from Jasper Circuit Court, — Ron. Hugh Dabbs, Judge.
    Affirmed.

      Thomas Dolan for appellant.
    (1) Injunction is the proper remedy in this case, upon the pleadings and evidence set out in the record. Kamp v. Schrader, 45 Mo. 505; Lytle v. James, 98 Mo. App. 337; Jack Harvard Co. v. Continental Zinc Co., 106 Mo. App'. 66'. (2) No part of the defense set up hy defendant in its answer was proven, except the fact that when this suit was brought, appellant, a foreign corporation, had not obtained a license to do business in the State of Missouri, but it was shown that shortly after bringing suit, and long prior to the April term, for which said suit was brought, appellant was duly and regularly licensed .to do business in Missouri. Under the ruling in the case of Carson-Rand Co. v. Stern, 129 Mo. 381, this has been held to be sufficient to entitle it to maintain this action. Besides, this action was brought, not to enforce some contract made in the course of business prohibited because of having no license, but to protect its property, to stay the hand of a tresspasser. It has not been held in this State that because a foreign corporation has neglected to comply with the law its property may be looted with impunity. On the contrary, it has been held in other jurisdictions that it can not be destroyed or taken from it. Railroad v. Fire Assn. (Ark.), 30 S. W. 350; Beale on Foreign Corp., sec. 252. It appears from all the evidence that defendant — a mere tresspasser — entered upon the mining lots of the plaintiff, and against its protest boldly took its ore, and continued to take same.

      Cole, Burnett S Williams for respondent.
    (1) Plaintiff ’s alleged cause of action is based upon rights it claims to have acquired under the assignment of a lease to it in 1904. At that time plaintiff was unlawfully engaged in business in Missouri, and long had been, as a foreign corporation without authority or license from the State. It legally acquired no rights under the lease. Its lease was void. Amusement Co. v. Amusement Co., 192 Mo. 404; State ex inf. v. Standard Oil Co., 194 Mo. 124; Mill & Lumber Co. v. Sims, 197 Mo. 507; Bank v. Leeper, 97 S. W. 636; Wilson-Moline Buggy Co. v. Priebe, 100 S. W. 558; Eoeder v. Eobertson, 202 Mo. 522; United Shoe Machinery Co. v. Eamlose, 210 Mo. 649. (2) Plaintiff commenced this action in 1905; afterwards, in 1906, it complied with Sec. 1025, E. S. 1899, and so- having failed to comply with the statute, when it attempted suit, could not “maintain any suit or action, either legal or equitable, in any of the courts of this State, upon any demand, whether arising out of contract or tort.” E. S. 1899, sec. 1026. (3) If a right of action did not exist at the time the suit was brought, subsequent transactions by the plaintiff cannot be invoked to relieve plaintiff from the result of its premature conduct or its premature action in the court. TriState Amusement Co. v. Amusement Co., 192 Mo. 404.
   GEAVES, J.

Plaintiff, a corporation under the laws of New Jersey, on December 27, 1905, filed a petition in the circuit court of Jasper, the purpose of which was to enjoin and restrain the defendant from mining on the east half of a certain tract of ground known and described as Lot 107 in the northeast quarter of section 4, township 27, range 33, in Jasper county, Missouri, as shown by a certain plat of said ground for mining purposes as made out and posted by the Granby Mining & Smelting Company, the owner in fee of said ground. Plaintiff claimed the right to mine said east half of Lot. 107 by virtue of mesne assignments of a license to mine that tract and other lots, given by the said Granby Mining & Smelting Company. The petition then charged that defendant had been mining on said tract and although notified not to so do, was still mining thereon, and’after charging irreparable injury and damages and inadequate legal remedies, prayed for an injunction as aforesaid.

By the answer the defendant pleaded:

1. That plaintiff was a foreign corporation, and had not complied with the laws of this State by filing with the Secretary of State a copy of its charter or certificate of incorporation, and had no license to transact business in this State, and had no right to commence or maintain a suit such as this or any other in the courts of this State.

2. Defendant admitted its corporate capacity; admitted that it was in possession of that part of the premises described in plaintiff’s petition, specifically describing the same by metes and bounds; admitted that it was mining on the same at the commencement of this suit; admitted that it had been so engaged long prior to the filing of the suit and purposed to continue said mining, but denied all other matters not specifically admitted.

3. Defendant further pleaded that it was mining on such disputed tract by virtue of an agreement with plaintiff, which agreement is described in detail, as well as defendant’s conduct thereunder, and this portion of the answer concludes by a plea of estoppel.

4. Defendant avers that the petition does not state facts sufficient to entitle plaintiff to injunctive relief.

Reply was a general denial.

, At the trial evidence was heard subject to objections and at the close of the plaintiff’s case the court sustained a demurrer to the testimony.

Over the objection of the defendant the plaintiff put in the following documentary evidence: (1) certificate and license issued to plaintiff by the Secretary of State of Missouri, of date January 25, 1906; (2) mining license from Granby Mining & Smelting Company, of date March 1, 1899, to Rafael Estrada and covering the land in dispute; (3) written transfer of the above named mining license or lease from Rafael Estrada to TV TV Lowe, trustee, of date May 31, 1904; (4) written transfer of the first named license, of date October 14,1904.

By oral proof it was shown that in March, 1906, the plaintiff got a new license or lease from the Granby Mining & Smelting Company; that plaintiff had been mining on the property covered by the Estrada lease since 1902; that TV TV Lowe was trustee for the plaintiff in the instrument made to him and described above; that plaintiff notified defendant to cease mining on the disputed tract, which was done for about three weeks and that then mining was resumed and continued until the granting of the injunction; that the ore was six per cent ore and valuable; that defendant purposed further operations on this land unless restrained by injunction. Such are the facts of the case. Counsel seem to agree that the court, nisi, dismissed plaintiff’s bill on the theory that it had no license to transact any business in this State prior to January 25, 1906, and therefore could not maintain this suit, but whatever may have been the views below, we have detailed an outline of the facts, and can, as we have the right, proceed to determine the merits. Contentions of counsel both pro and con will be noted in the course of the opinion, so far as may be required.

I. There are two questions presented by this record, (1) can plaintiff, a foreign corporation, without license to do business in this State, but having actually been resident in the State, and transacting its charter business therein for some years, be permitted to bring an action in our courts, and after having so brought the action, be permitted to maintain and prosecute it, by taking out the required license before trial? And (2), if it can thus give itself a status or standing in our courts, can it further enforce contracts which it has made and which are to be fully performed in this State? Of these questions in their order.

We are inclined to think that both contentions must be answered in the negative. But they are so closely related that a discussion of the one necessarily involves the discussion of the other. That a foreign corporation can sue in Missouri on contracts made outside of Missouri, or made by salesmen traveling for them in Missouri, can sue in the courts of the State without license from the Secretary of State is unquestioned. But the question here is, can a foreign corporation come into this State, open up a place of business and actually do a part of the business authorized by its charter, in violation of our law and without taking out a license and otherwise complying with our statutes, have the doors of our courts open to them, to protect the unlawful business? We think not. If the petition in such cases disclosed the facts aforesaid it would be be demurrable. Whilst we have held that the plaintiff in such cases does not have to plead that it has a license to do business, and" that the failure so to plead does not make the petition demurrable, United Shoe Machinery Co. v. Ramlose, 210 Mo. l. c. 649, yet there can be no question that if it appeared upon the face of the petition that the plaintiff, a foreign corporation, had established a place of business in the State and had actually been doing business in the State, without a license, such a petition would be demurrable, because of the fact that it would disclose that the party plaintiff had no right to sue. Now advancing a step, if the party was incapacitated to sue at the institution of the suit, can such party cure such incapacity by taking out a license thereafter and before trial? We think not. There is diversity of opinion among the courts. Vide note to ease of National Fertilizer Co. v. Fall River Five Cents Savings Bank (Mass.), 14 L. R. A. (N. S.) 561, et seq. The annotator, in discussing the right to maintain a suit before license is issued, but in which license was procured before trial, says: “Of course, in those jurisdictions in which it is held that any contract entered into by a foreign corporation before complying with the requirements of the local statute is void, the particular question presented in the foregoing case could not arise; for, if the contract is void from the beginning, subsequent compliance with the requirements of the statute, either before or after bringing suit, would not remedy the defect. In those jurisdictions, however, which hold that such contracts are not invalid, but merely unenforceable by the corporation before its compliance with the statutory requirements, there is much difference of opinion as to the effect of a compliance after the commencement of the suit, but Before judgment."

In this State we hold, as we shall show in a subsequent paragraph, that the unlawful contract cannot be validated by taking out a license after the making of the contract, hence our State falls within that class of jurisdictions mentioned in the first paragraph of the quotation, mipra; for that reason we suggested in the beginning that the two questions were much intertwined in the case at bar.

We are not unaware that in Carson-Rand Co. v. Stern, 129 Mo. 381, this court held that where a foreign corporation had filed an attachment suit prior to taking out license, and between the time of bringing the suit and a motion to dismiss the case for the reason that it had not taken out license, it did comply with our law, and take out the license, it could maintain said suit, and the judgment of our Brother Yallianr then on the -court, nisi, was reversed, but as pointed out by Goode, J., in the recent case of Manufacturing Co. v. Construction Co., 124 Mo. App. l. c. 362, the Carson-Rand case has in effect been overruled in the case of Tri-State Amusement Co. v. Forest Park Highlands Amusement Co., 192 Mo. 404. We did not expressly overrule it, but when upon examination of the record in that case it is seen that an agreed statement of facts upon which the motion to dismiss was submitted, as Judge Goode, in the case, supra, says, “contained, among other things, the agreement that plaintiff had for a long time conducted a lumber yard in St. Louis; that the notes in suit were made and executed in the city of St. Louis, were payable in St. Louis and that the sales of lumber for which the notes were given were made in St. Louis,” then it is apparent that it has been in effect fully overruled by not only the case in 192 Mo., supra, but in all subsequent decisions. The effect of Judge Barclay’s decision was to hold that the subsequent taking out of the license validated the notes sued on in that case and he accordingly reversed and remanded the case “for further proceedings.”

Not only have our courts discredited the doctrine of the Carson-Rand case, but in Minnesota, wherein they have practically the same statute as ours, the court refused to follow that case. The Minnesota court in Brewing Co. v. Peimeisl, 85 Minn. l. c. 124, says: “Counsel for the plaintiff practically concede that by virtue of this provision it could not maintain any action in onr courts upon such a demand until it complied with the statute, but claim that the statute does not prohibit the commencement of' the action, and that the plaintiff may, after its non-compliance has been pleaded as a defense, comply with the statute and maintain the action. The case of Carson-Rand Co. v. Stern, 129 Mo. 381, is cited in support of this contention. The case is in point, for the statute there under consideration was similar to our own. But we cannot accept this construction of the statute, for a prohibition against maintaining an action implies a prohibition against beginning it, for the beginning of the action is one of the necessary steps in maintaining it. More than that, the construction of the statute urged on behalf of the plaintiff would invite and foster the very evil it was intended to prevent. It would enable foreign corporations to do business in this State in defiance of our laws until some party, perchance, pleaded its non-compliance in an action brought by it to enforce a demand against him. Then it would comply and the action would proceed. Such a construction is contrary to the letter and spirit of the statute, and, if adopted by the court, would directly tend to defeat the public policy sought to be enforced by its enactment. The most efficient way to compel obedience to this statute is to enforce it as it reads, and not amend it by judicial construction so as to enable foreign corporations to avoid the consequences of a non-compliance with its terms by complying after the penalties have been incurred. We therefore hold that a foreign corporation doing business in this State without first complying with the statute cannot maintain an action in the courts of this State upon any contract or demand growing out of such business. Nor will compliance by it with the statute after the making of such a contract, or after the commencement of an action thereon, remove the bar of the statute. The conclusion is supported by the decisions of the courts of other States having a similar statute. [J. Walter Thompson Co. v. Whitehed, 185 Ill. 454, 56 N. E. 1106; Cary-Lombard Lumber Co. v. Thomas, 92 Tenn. 587, 22 S. W. 743; Ehrhardt v. Robertson, 78 Mo. App. 404.]’’

In Halsey v. Henry Jewett Dramatic Co., 99 N. Y. Supp. l. c. 1124, the court says: “The language of section 181 of the tax law is that every foreign corporation not excepted, authorized to do business under the general corporation law, shall pay a license tax within the time prescribed, or else it shall not maintain an action in the courts of the State. The answers demurred to allege that this tax had not been paid when the action commenced, and, if that be true, then the action cannot be maintained. The fact that the tax was paid after the action was commenced does not change the situation. The plaintiff had no right to bring the action, and, having brought it without right, he cannot, notwithstanding the payment of the tax thereafter made, continue and maintain an action which he, in the first instance, had no right to bring. ’ ’

We quite agree with the Minnesota court in that the beginning of a suit is but one step in maintaining it. The construction of the word “maintain” as given in the Carson-Rand case is too narrow, when we consider the purpose of the statute wherein it is used;, i. e., Revised Statutes 1899, section 1026.

The plaintiff in the case being incapacitated to sue in the first place, did not so change its status by taking out the license as to be permitted to further prosecute a suit brought in defiance of the statute. These statutes, sections 1025 and 1026, Revised Statutes 1899, have been so often quoted in the cases hereinafter cited that a reproduction here would be superfluous.

II. But going to the contract which is the basis of plaintiff’s right to maintain this suit, i.e., the license or lease -which: by mesne assignments from Estrada came to plaintiff, how stands the plaintiff? It is only by this instrument that plaintiff has any standing in court. This is a Missouri contract assigned in Missouri to a foreign corporation. This assignment to Lowe, trustee, was but an assignment to the corporation under the undisputed evidence. The plaintiff was in Missouri actually transacting its business in 1902, nearly two years before the assignment of the contract or license. The contract was to be wholly performed in Missouri, and the plaintiff was working its mines under this contract and had been for months prior to this suit. All this it did in open violation of our statutes. When it assented to this assignment it undertook to make and perform a Missouri contract relative to the business it was authorized by its charter to do in its native State. It established its business in Missouri, with a superintendent in charge, all in violation of law. It was here in open violation of law before it made this contract, and so continued thereafter. Under such circumstances its contract is absolutely void, and no act of it thereafter by taking out license and otherwise complying with our statutes can validate, it. [R. S. 1899, sec. 1026; United Shoe Machinery Co. v. Ramlose, 210 Mo. 631; Tri-State Amusement Co. v. Amusement Co., 192 Mo. 404; Mill & Lumber Co. v. Sims, 197 Mo. 507; Roeder v. Robertson, 202 Mo. 522; Manufacturing Co. v. Construction Co., 124 Mo. App. l. c. 362; First National Bank v. Leeper, 121 Mo. App. 688; Wilson-Moline Buggy Co. v. Priebe, 123 Mo. App. 521.]

Without a valid contract the proof failed to show that the plaintiff was entitled to any relief at the hands of a court of equity, nor for that matter in a court of law. We conclude that it neither had the right to bring or maintain the suit, nor did it show facts to make a case. Taking out a license after bringing tbe suit neither validated the theretofore illegal contract, nor did it change the status of the plaintiff, at the time of the institution of the suit. Being an outlaw at the beginning of the case it must so continue throughout.

The judgment, nisi, is correct and is affirmed.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    ISAAC N. McCREERY, Appellant, v. UNITED RAILWAYS COMPANY.
    Division One,
    May 31, 1909.
    1. NEGLIGENCE: Evidence: Sounding Gong: Not Heard. Where no city ordinance requiring the gong of a street car to he rung» was offered in evidence, a failure to ring it was not negligence per se; and where none of the witnesses who were in a position to hear, gave the ringing of the gong any thought or attention, and the most they would testify was that they did not •. recollect to have heard it, the allegation that the gong was not rung is not established.
    2. -: -: Speed of Car. A casual observer cannot measure a difference in speed between ten and twelve miles an hour. And where the testimony varied in estimates of between twelve and twenty miles an hour — which of itself impairs confidence in its correctness — and the witness best situated to observe did not notice the speed, and another witness first declared his inability to estimate the speed in miles per hour and then stated it was going eighteen to twenty miles, and all the other witnesses' testimony was to a like effect, against which is the physical fact that the car stopped within a few feet of the place of accident and at its usual place of stopping, it cannot be said that there was any satisfactory evidence that the speed of the car was in excess of the maximum ordinance rate of ten miles an hour.
    3. ——: -: -: Guess. When a witness disclaims ability to form an opinion he should not be told by the court that he may guess for an answer.

      4. -: Collision Between Car and Automobile: Conclusion of Witness. Plaintiff is not entitled to a mere conclusion that a witness may draw when the facts stated show that the conclusion is without reason. It was physically impossible for the steps of a street car to have struck the automobile if the automobile was in front of the car; and it was impossible for the automobile to have got in front of the ear if plaintiff truthfully testified when he said he saw a street car coming with great speed on the track he was attempting to cross when he was close to it, that he immediately tried to stop the automobile, that he could do so in two or three feet, and that was the last 'he remembered; and hence the testimony of the other witness that the steps of the car struck the wheel of the automobile and his conclusion that the automobile was in front of the car cannot be reconciled, and hence the court would have been Justified in taking the case from the jury on the theory that it was the automobile that ran against the car, and not the car that ran against the automobile.
    5. -; Contributory: Not Looking. Plaintiff testified that he stopped his automobile twenty-five feet south of the car line to permit a west-bound car on the north track to pass; that he then looked both ways and saw no cars approaching, and without looking again he moved his automobile forward, and when he was close to the track he saw an east-bound car coming at a high rate of speed; that he knew the time was midday, on a busy street; that he could have stopped the automobile in two or three feet, and that the view was unobstructed, and he could have seen the ear at least one hundred and fifty feet away. Held, that he was guilty of such contributory negligence as bars his recovery.
    Appeal from St. Louis City Circuit Court. — lion. C. Or rick Bishop, Judge.
    Appirmed.

      Chas. L. & Phillips Moss for appellant.
    (1) Before a court is authorized to sustain a demurrer to the evidence because of its insufficiency, it must appear that, admitting all the evidence introduced by plaintiff to be absolutely true and giving' him the benefit of every reasonable inference to be deduced therefrom, he is not entitled to recover; and in applying this rule to the facts proven by plaintiff, it must be remembered that negligence is not a fact which is subject to direct proof but an inference from facts put in evidence. Baird v. Railroad, 146 Mo. 265; Hollweg v. Tel.-Co., 195 Mo. 149; Pauck v. St. Louis, Etc., Co., 159' Mo. 475; Bender v. Railroad, 137 Mo. 240; Noeninger v. Vogt, 88 Mo. 589; Harris v. Railroad, 89 Mo. 233; Barth v. Railroad, 142 Mo. 548; Young v. Webb City, 150 Mo. 333. (2) A court is not at liberty, in passing on a demurrer to the evidence, to make any inferences of fact in favor of defendant to overthrow either presumptions of law or inferences of fact in favor of plaintiff. Frick v. Railroad, 75 Mo. 595; Buesching v. Gas Light Co., 73 Mo. 231; Wilson v. Board of Ed., 63 Mo. 137; Hamman v. C. & C. Co., 156 Mo. 232. (3) “Where the evidence of contributory negligence is not clear, definite and certain, it is improper for the -court to sustain a demurrer to the evidence.” Drain v. Railroad, 86 Mo. 574; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 199; Eckhard v. Railroad, 190 Mo. 593.

      Boyle & Priest and T. M. Pierce for respondent.
    (1-) Plaintiff was guilty of concurring and contributory negligence. A . person who waits in a position of safety until one car passes, and then, without further looking or listening, goes upon the track and is struck by another ear, is guilty of such negligence as will prevent a recovery. Boring v. Railroad, 194 Mo. 541; Sanguinette v. Railroad, 196 Mo. 494; Petty v. Railroad, 179 Mo. 466. It is true that the proof shows municipal ordinances were being violated, yet the negligence of the plaintiff defeats his right to recover. Green v. Railroad, 192 Mo. 131; Stotler v. Railroad, 204 Mo. 639. (2) Counsel for plaintiff seem to pin their faith upon the proposition that where a person draws near a railroad crossing in a city, and observes an engine approaching and relies upon a presumption that the speed ordinance will he observed, and attempts to cross in front of the engine, he is not guilty of contributory negligence, as a matter of law, but the question is for the jury. That is not the law. Hutchinson v. Railroad, 161 Mo. 254; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180; Sullivan v. Railroad, 117 Mo. 214; Mockowick v. Railroad, 196 Mo. 571. Under the facts now before the court, there was no showing by plaintiff, who testified in his own behalf, that he relied upon the observance of any municipal ordinance by defendant, and consequently plaintiff is not now entitled to any presumptions.
   VALLIANT, J.

Plaintiff riding in his automobile, going north on Twenty-third street crossing Olive street, was injured in a collision between his automobile and a street car of defendant; he sues for $6,000 damages, alleging that the accident occurred through the negligence of the defendant. The petition is in two counts, the first, based on common law negligence, alleging that the car was being run “at a great and dangerous rate of speed” and no gong or other warning of its approach, the second, based on the Vigilant Watch Ordinance and an ordinance limiting the speed of street cars at that point to ten miles an hour, alleging that the ear was going beyond that limit of speed and that the vigilant watch was not kept. The answer was a general denial, and a plea of contributory negligence.

At the close of the plaintiff’s evidence the court, at the request of the defendant, gave an instruction to the effect that the plaintiff was not entitled to recover, whereupon the plaintiff took a nonsuit with leave, and his motion to set the nonsuit aside having been overruled took this appeal.

Plaintiff’s evidence tended to show as follows: Twenty-third street runs north and south; it crosses Olive street at right angles. Defendant has a double-track street railway on Olive street, the north track is for cars going west, the south for those going east. The ordinance limits the speed of cars at that point to ten miles an hour. The plaintiff was alone in his automobile, operating it himself; he was going north on Twenty-third street, aiming to cross Olive and go beyond; it was about noon on the 22d July, 1905. As he approached Olive street he saw a car coming from the east and he stopped his machine until it passed; that car was on the north track going west; the point where plaintiff stopped his vehicle to let the westbound car go by was, according to his estimate, about twenty-five feet south of the south or east-bound track and near the east side of Twenty-third street. After that car passed, plaintiff testified, he looked both ways up and down Olive street and seeing no other ear he moved forward “and when I came close to the track I saw a car coming down at a great rate of speed right on me. ... I pulled off my clutch, and broke my machine down as quick as I could; and that is the last.thing I remember of doing.” When he recovered consciousness he was in St. John’s Hospital, which was very near the scene of the accident. The testimony of the plaintiff himself will be referred to later and more in detail.

As to the sounding of the gong the testimony was that the witnesses did not recollect that it was sounded, though no one said that he paid, any attention to it, Dr. Biernbaum who was standing on the front platform of the car and in a better position than either of the other witnesses to speak on that point said: “I don’t remember exactly whether he was ringing the bell or not.” Little, if any, importance however is attached to this point in the briefs.

On the question of the speed of the car there were four witnesses. One,- Dr. Biernbaum above mentioned, who was standing on the front platform and was therefore in a better position to judge of the speed of the ear than either of the others, said he had no recollection of how fast it was going. Dr. Saraghan’s testimony will be referred to later. Dr. Cooley was standing on the west side of Twenty-third street, about half way between the alley and Olive street; having first testified that he had lived in the city twelve years and had habitually ridden on street cars, was asked if he could give an estimate of the rate of speed at which this car was going, said: “Well, I could not say how many miles it was going.” Again asked if his experience on street cars made him familiar with their speed he said: “Yes, I should say it is, so much as I have ridden on them.” Then asked his opinion as to the proximate speed of this car said it was about twelve or fourteen miles an hour. Dr. Dillon was a passenger standing on the rear platform of the car, had the -usual experience of a city man travelling on street cars, he gave it as his opinion that the car was going seventeen to twenty miles an hour. On cross-examination he said “unusually rapid.” When asked if he noticed a checking of the speed just before the collision he said he would not say, because he was in the midst of a conversation and did not notice.

Mr. Gruner, also a passenger, had boarded the car at Jefferson avenue, which is one block west of Twenty-third street; he entered by way of the rear platform and made his way through the car to a seat at the front end and was about to sit down.when the collision came; from that circumstance he was of the opinion that the car was going eighteen or twenty miles an hour. The testimony also showed that immediately after the accident the car stopped with the rear end a few feet east of the west building line of Twenty-third street, which was the usual place of stopping, and the automobile was near the southeast corner of the street with its front end turned toward the east, and about four feet from the rear platform of the car. The witness Gruner ¡was asked to state the point of collision: “Was it near the center of Twenty-third street, was it on the west side of Twenty-third street or was it on the east side of Twenty-third street? A. The front part of the car struck the automobile just about parallel with the curbing- on the east side of Twenty-third street.”

On the question of whether it was the car that struck the automobile or the automobile struck the car, the testimony was substantially as follows:

The plaintiff himself testified: “I looked both ways to see if there was another car in sight and seeing none, I started up, and when I came close to the track, I saw; a car coming down at great speed right on me. ... I pulled off my clutch and broke my machine down as quick as I could and that is the last thing I remember of doing. ’ ’

Dr. Biembaum was asked by plaintiff’s attorney:

“Will you state whether or not the front platform of this car struck the automobile? A. I imagine— (objection). Q. Just state what you saw? A. I saw the steps hit the front wheel of the automobile. Q. The steps leading to the front platform of the car? A. That is it. Q. Will you state what position that automobile was in at the time it was struck? A. The automobile was in front of the car, on the east side, because when I jumped up, I saw the gentleman turn from his automobile and I jumped over the front platform to this gentleman, and when I jumped .off he was lying under the automobile and the automobile was going from the west with the front wheels on the east side, so we took him from under the automobile into the saloon. Q. What I want to bring out is this point: you have stated that the steps of the front platform of the car struck the automobile? A. Yes, sir. Q. What portion of the automobile did they strike? A. The front wheels of the automobile on the west side.” On cross-examination he said he only had a glance at the automobile before tbe collision and he jumped off immediately. Dr. Cooley could not see tbe contact from where be stood, nor could Dr. Dillon. Mr. G-runer in bis direct examination testified: ‘ Tbe front part of tbe car struck tbe automobile.” On cross-examination be said that be passed from tbe rear to tbe front part of tbe car and was just in tbe act of taking a seat when tbe crash occurred. “Q. Then you saw tbe automobile coming, didn’t you? A. Just at that time tbe crash occurred. Q. Just as you turned around tbe automobile and tbe car came in collision? A. Tbe car and automobile came together, yes, sir. Q. And tbe automobile bit on tbe south side of tbe car, right up near tbe front, didn’t it, near tbe step on the front platform? A. Yes; tbe car bit tbe automobile, tbe front part of tbe car neartbe step.”

On tbe question of tbe plaintiff’s contributory negligence bis own evidence was to tbe following effect. He owed tbe automobile and understood its appliances and bow it worked; when running eight miles an hour, tbe limit of tbe ordinance speed, be could stop it in two or three feet; as be approached Olive street be beard tbe bell of a street car and stopped bis machine, be then looked both east and west, saw a car coming from tbe east and waited until it passed; be knew that tbe Olive street line was one of tbe busiest in tbe city and be knew that be might expect a car from tbe west as well as one from tbe east;' tbe point where he stopped bis machine was near tbe east side of Twenty-third street, about twenty-five feet south of tbe south track of tbe street railroad; it was about noon and a clear day; from where be was he could see up and down Olive street in each direction “quite a distance.” “I think I could see about one hundred and fifty feet; that would be my judgment, that it was about one hundred and fifty feet west on tbe tracks. . . . Q. You waited until that car. passed and then yon started up? A. Yes, sir. Q. After you had gotten into Olive street did you look again for a car before you had gotten to within about two feet of the track? A. "Well, the only thing I remember now is, when I got near the Olive Street line, this car came right down on me, and I was not paying attention in my mind whether I was going to meet that car or not when I pulled my clutch off. Q. Until you had i gotten in to about two feet of the eastbound track you did not see the east-bound car? A. I was probably that close. . . . Q. You could have seen that car coming if you had looked? A. I didn’t see it coming. Q. But you didn’t look when you were at the south line of Olive street, did you? A. I don’t remember; I looked both ways, just the time I looked I am not positive, I know I looked when I started up. Q. You don’t remember looking again until you were within about two or three feet of the track? A. No; I was pretty close to the track before I discovered the car coming down. ’ ’ He testified that at the rate of speed he was going in his automobile when he started up after the stop he could have stopped in two or three feet.

The question is, did the court err in giving the instruction in the nature of a demurrer to the evidence ?

That question includes three .questions: was the defendant guilty of negligence; was it the defendant’s car that struck the automobile or the automobile that struck the car; was the plaintiff guilty of negligence that caused or contributed to the accident?

I. a. The allegation in the petition that the gong was not rung deserves but little attention and is not relied on by plaintiff in his brief. There was no city ordinance, so far as the evidence shows, requiring the gong to be rung, therefore it was not negligence per se if defendant failed to sound it. It has been frequently held that testimony of witnesses who were in position to hear and under circumstances that showed they would have been likely to have heard the signal if it had been given, but who testified that they heard none, was evidence to be considered on the question of whether the warning signal was given, although it was negative evidence. But the testimony of these witnesses can hardly be said to have reached the point where testimony of that kind has been allowed. Not one of the witnesses gave the subject of the gong a thought, the farthest that they would go was to say that they did not recollect to have heard the gong.

b. If there was any evidence tending to show that defendant was negligent it was that relating to the speed of the car and that was of very unreliable character, unreliable, not in the sense of impeaching the veracity of the witnesses, but in their lack of opportunity and ability to form a judgment of the matter. The testimony varied in the estimates from 12 to 2U miles (which of itself impairs confidence in its correctness), one witness being no more competent to judge than another and their opinions formed under exciting circumstances. The ordinance allowed the car to go at the rate of ten miles an hour; what casual observer could measure the difference in speed between ten and twelve miles? Dr. Biernbaum was sitting in the front vestibule or platform and if there had been anything unusual in the speed of the car, he was in a better position to notice it than the other witnesses, yet he did not notice the speed. Dr. Straghan was on the rear platform talking to Dr. Dillon; he was asked if he noticed the speed of the car and answered, “Yes, sir, I do remember. The car seemed to be going a little — ,” then he was interrupted. Then questioned as to his ability to judge of the speed he said: “I cannot tell you in regard to the time it is making or the number of miles per hour. However I have a pretty good idea whether they are going un usually fast or not.” But the witness was pressed to make an estimate of miles per hour, and on objection by defendant on the ground that the witness had already declared his inability to do so the court said: “The appellate court has given most anybody the privilege to give a guess on that point, and he may give his guess.” Then the witness said eighteen or twenty miles an hour. That ruling was wrong; the courts have never required a very high degree of experience to enable a witness to give his opinion on such a matter, but when the witness disclaims abil-. ity to form an opinion he should not be told that he may guess for an answer.

Dr. Dillon gave it as his opinion that the car was going seventeen or twenty miles an hour. But these two gentlemen were talking together and when Dr. Dillon was asked if he noticed a slackening of the speed when Twenty-third street was reached said he was engaged in conversation and did not notice.

The only other witness who spoke on the subject calculated that the car was going eighteen or twenty miles an hour from the fact that he had boarded the car at Jefferson avenue, entering by the rear platform, and had passed on to the front and was about to take a seat in that end of the car when the collision came. The car had traveled from Jefferson avenue to Twenty-third street, a distance of one -block, while this witness was making his way from the rear platform to the front of the car. The trouble about that calculation is that we do not know how long it took the witness to make his way from one end to the other of a street car under full way. Opinion testimony of non-experts on that subject is not generally esteemed of a high order, and the testimony of the plaintiff’s witnesses on this point was of the weakest of that kind of testimony. Against that opinion evidence is the physical fact that the car stopped within a fe¡w feet of the point of collision and at its usual place for stopping. The collision occurred near the east line of Twenty-third street produced north until it would cross the railroad track, and the car stopped within about 15 feet of that point. If it had been going at the rate of speed some of the witnesses estimated and had struck the automobile with force enough to bring the car to a sudden stop within the space it did stop, we would doubtless have heard in the evidence of a shake-up of the passengers, but no one spoke of such a consequence, and the automobile was only turnéd with its front to the east. "We cannot say there was no evidence at all to take the case to the jury on the question of the speed of the car being in excess of the ordinance limit, if the plaintiff’s evidence otherwise made out a case for the jury, because primarily it is the province of the jury to weigh the evidence, but this evidence is so vague and unsatisfactory that if the case had gone to the jury on that question and a verdict had been rendered for the plaintiff, the trial judge would not have hesitated to set it aside.

II. Did the car run against the automobile or was it the automobile that ran against the car?

The plaintiff was rendered unconscious in the collision, but he was not unconscious up to the 'point of actual contact between his automobile and the car and he tells how it was up to that time; he said: “I started my machine up, and when I came close to the track, I saw a car coming down at a great rate of speed right on me. ... I pulled off my clutch, and broke my machine down as quick as I could, and that is the last thing I remember of doing.” By that testimony we understand that when he discovered the danger he used all the means at his hand to stop his machine as quickly as possible; he does not give us to understand that he endeavored to escape by turning to the right or left, he was going north and he applied his brakes to stop and that is the last he recollects. He said that going as he was then going he conld have stopped his automobile in two or three feet, and when he saw the car he applied every means to stop as-soon as possible. If that is so, then his automobile did not get in front of the car. The point of contact specified by the witnesses between the two vehicles was the steps on the south side of the front platform of the car and the left hand front wheel of the automobile. How could the steps on the side of the car strike the wheel of the automobile if the automobile was in front of the car? It is easy to see how, if the automobile struck the front steps of the car, the momentum of the car would have a tendency to throw the front of the automobile towards the east, the direction in which the car was moving, and that would bring the front wheel on that side of the automobile in contact with the steps of the car, and that is just the physical situation as the witness described it. Dr. Biernbaum said: “I saw the steps hit the front wheel of the automobile.” But plaintiff’s attorney, seeming to appreciate that that fact needed explanation, asked the witness where the automobile "was at that instant and he said it was in front of the car, “because when I jumped up I saw the gentleman turn from his automobile and I jumped over the platform to this gentleman,” etc. Evidently the witness was not undertaking to say that he saw the automobile in front of the car at the instant of the contact, but was arguing that it must have been so because of the situation when he jumped over the platform and went to the relief of the injured man. He said “because when I jumped up I saw,” etc.; it was the crash that caused him to jump up and what he said he saw was what he saw after he had jumped up. His conduct showed that when he saw the man in distress all the noble instincts of the physician were aroused in Mm and Ms absorbing tbongbt was to render relief to tbe suffering man.

Mr. G-runer’s testimony on tbis point was not clear. He first said tbe front part of tbe car struck tbe automobile; “front part” is somewhat indefinite. In bis cross-examination be said that just as be turned to sit down tbe crash came, be bad not seen tbe automobile until in that instant. “Q. And tbe automobile bit on tbe south side of tbe car, right up near tbe front, didn’t it, near tbe steps on tbe front platform? A. Yes, tbe car bit tbe automobile tbe front part of tbe car near tbe steps.” So although tbe witness “was trying bard to say that tbe car Mt tbe automobile, and did say so, yet when required to specify bow it struck be said tbe steps of tbe ear wMcb were on its side near its front struck tbe automobile.

WMle considering a plaintiff’s evidence from tbe standpoint of a demurrer be is entitled to every inference that can fairly be drawn from it in bis favor, yet be is not entitled to a mere conclusion that a witness may draw when tbe facts stated show that tbe conclusion is without any reason. It was physically impossible for tbe steps of tbe car to have struck tbe automobile if tbe automobile was in front of tbe car, and it was impossible for tbe automobile to have got in front of tbe car if what tbe plaintiff said was correct. Tbe trial judge would have been justified in taMng tbis case from tbe jury on tbe theory that it was not tbe car that ran against tbe automobile but tbe automobile ran agamst tbe car.

HE. But even if tbe accident bad been caused by tbe defendant’s negligence as alleged, tbe plaintiff was guilty of such contributory negligence as to preclude Ms recovery. Prom tbe point where be says be stopped bis automobile to allow tbe west-bound car to pass and from which point be says be looked up and down Olive street, east and west, be said be could see for a distance of one hundred and fifty feet on Olive street each way. That point was twenty-five feet south of the south track. After that car passed he started forward, he looked each way just as he started, hut did not look again. After he had started and crossed the south line of Olive street there was nothing to obstruct his view east or west, and he testified that if he had' looked west he would have seen that car coming, but that he did not look. Asked if he looked after he got into Olive street he said: “Well, the only thing I remember now is, when I got near the Olive Street line this car came right down on me and I was not paying attention in my mind whether I was going to meet that car or not, when I pulled my clutch off.” He also testified that at the rate of speed he was going he could have stopped his, machine in three feet at least. While the plaintiff was being cross-examined as to the distance he could have seen east or west on Olive street after he had crossed the south line of the street, the counsel for plaintiff interrupted the cross-examination and said that it was admitted that there were no obstructions to view. A photograph which was shown him on cross-examination and which he said was correct showed a street car at Jefferson avenue in plain view from the point where he had stopped at the southeast corner of Twenty-third and Olive streets, and the photograph also shows that but for the car there was a clear view farther west in Olive street. The plaintiff’s vision was therefore not limited to one hundred and fifty feet but as much farther as the eye could reach. Plaintiff also testified that he knew that the Olive street line of cars was one of the busiest in the city and cars were to be expected coming east or west at any time, yet he moved on without looking, and not until he was within two feet of the track, as he said, did he see the car. Plaintiff has only his own thoughtlessness to blame for his injury.

The judgment is affirmed.

Lamm, P. J., and Graves, J., concur; Woodson, J., concurs in paragraph III and in the result, and dissents as to the other paragraphs.


author: GRAVES, J.

text:
    C. F. ZWEIGART v. JOHN I. REED, Appellant.
    Division One,
    May 31, 1909.
    1. TAX SALE: Against Record Owner: Knowledge of Real Owner. Knowledge by the purchaser at a tax sale that the suit was not against the real owner, though against the record owner, will make the tax deed unavailing as between him and the real owner.
    2. -: -: -: Inquiry: Taxes Paid. The purchaser at the tax sale who was informed before the sale that the taxes had been paid before judgment in the tax suit against the record owner, was placed in a position which demanded of him, before purchasing, an inquiry about the tax proceeding; and if, by inquiry of the collector, he would have learned that the taxes had been paid prior to judgment, and that the suit was not against the real owner, his tax deed is unavailing to defeat the title of the real owner.
    3. -: -: -: Suit Against Record Owner; Notice. Where the collector knows who is the real owner, the suit for back taxes must be brought against him, although he is not the record owner; and if with such knowledge he brings suit against the record owner, and the purchaser at the tax sale has knowledge of such facts as ought to have prompted an inquiry, and an inquiry from the proper source would have disclosed the real owner, the purchaser takes nothing by the tax deed, for legal notice follows facts sufficient to put a person on inquiry.
    4. -: -: -: Quitclaim Deed from Purchaser: Notice. The grantee in a quitclaim deed from the purchaser at the tax sale takes the title subject to all the equities existing between the real owner and such purchaser, although he buys f°r full value and in good faith; and if the purchaser’s tax deed is void, the grantee takes nothing by his quitclaim deed as against thei real owner.

      Appeal from Greene Circuit Court. — Eon. Jas. T. Neville, Judge.
    Affirmed.

      C. E. Skinker for appellant.
    (1) The tax proceedings having been regular, and against the record owner of the land, the tax sale would have been valid even if all the taxes had been paid. Jones v. Driskell, 94 Mo. 190; Hill v. Sherwood, 96 Mo. 125; State ex rel. v. Boyd, 128 Mo. 130. (2) The purchaser at the tax sale under a judgment against the record owner acquires title against the holder of an unrecorded deed. Payne v. Lott, 90 Mo. 676; Vance v. Corrigan, 78 Mo. 94. (3) The purchaser at a sheriff’s sale looks only to the judgment, execution, levy and sheriff’s deed. Childers v. Schantz, 120 Mo. 313. (4) A judgment upon an order of publication is just as conclusive as on personal service except that it may be reviewed or set aside for cause within three years. Tooker v. Leake, 146 Mo. 429 ; State ex rel. v. Clarkson, 88 Mo. App. 553. (5) A judgment Tor a sum in excess of the amount due or in excess of the amount recited in the order of publication in a tax suit is not subject to collateral attack. Schmidt v. Niemeyer, 100 Mo. 207. (6) “If there is any principle of law which is well settled, it is that a judgment which is merely erroneous cannot be attacked collaterally even by strangers.” Bed-ford v. Sykes, 168 Mo. 14. (7) This is an attempt to defeat, evade and avoid the force and effect of the tax judgment, that is, to set aside the deeds 'which have been made in pursuance of and by authority of said judgment, without attempting to set aside the judgment itself, and is therefore clearly a collateral attack upon the judgment. Lovitt v. Russell, 138 Mo. 474; Brennan v. Maulé, 108 Mo. App. 336. (8) A judgment cannot be collaterally- attacked by matters m pais. Eeed Bros. v. Nicholson, 158 Mo. 624; Covington v. Chamberlain, 156 Mo. 574. (9) The collector is a limited agent of the State and county, the limitations upon his authority being fixed by general laws, of which all persons are conclusively presumed to take notice, and plaintiff is conclusively presumed to know that the collector had no right as collector to secure a reduction or remission of his taxes- and that the county court had no power to reduce-his taxes. Whatever the collector attempted to do-towards getting plaintiff’s taxes remitted was as the-agent of the plaintiff. State v. Bank, 45 Mo. 528. (10) Plaintiff’s negligence in keeping his deed off of record for three years; in permitting the taxes to remain unpaid; in failing to pay the taxes after he knew they were delinquent and subject to suit; in having the collector attempt to get the county court to remit a part of the taxes, and the confusion which was occasioned by his attempt to have the county court do what it had no power or authority to do, caused the title to the land in question to get in such a condition as to mislead and deceive others. As defendant purchased the land in good faith and for full value, relying upon the verity of the court’s record, which was regular, plaintiff and not defendant should suffer. Freeman v. Moffit, 135 Mo. 269; Smith v. Boyd, 162 Mo. 146.

      E. H. Gamble for respondent.
    (1) Payment of the tax at any time before the return term of the execution issued on -a tax judgment discharges the tax lien and invalidates a tax deed. Huber v. Pickier; 94 Mo. 382; Hoge -v. Hubb, 94 Mo. 489; Harness v. Cravens, 126 Mo. 234; Hampton v. McClanahan, 143 Mo. 501; City of Aurora v. Lindsay, 146 Mo. 509. (2) It is the duty of the collector to furnish a written statement of the taxes due, and a payment of all that the collector asks discharges-the tax lien, even though the collector erroneously omits to include in the statement arid collection a portion of the taxes. R. S. 1899, sec. 9226; Huber v. Pickier, supra; Hoge v. Hubb, supra; Hampton v. McOlanahan, supra. (3) Where pendente lite, the owner pays to the collector all the tax that the collector asks, the judgment is invalid, although the costs were not paid. Harness v. Cravens, supra; Hampton v. McOlanahan, supra; City of Aurora v. Lindsay, supra. (4) A tax judgment is void, even as against a tax sale purchaser without notice, where the collector knows that the land is owned by one who holds an unrecorded deed, where the latter is not made a defendant in the tax suit; especially where the purchaser at the tax sale also has such knowledge. Evans v. Robberson, 92 Mo. 200; Watt v. Donnell, 80 Mo. 195; Allen v. Ray, 96 Mo. 542; Moore v. Woodruff, 146 Mo. 597; St. Joseph v. Baker, 86 Mo. App. 310; Evarts v. Missouri Lumber & Mining Co., 193 Mo. 433. (5) Respondent’s title, which he received from the tax sale purchaser by a quitclaim deed, has all the infirmities of the title of the grantor, and remains subject to all equities that might be asserted against the latter; at least those arising out of transactions not required to be in writing and placed of record. Munson v. Ensor, 94 Mo. 509; Hope v. Blair, 105 Mo. 86; Eoff v. Irvine, 108 Mo. 378; Condit v. Maxwell, 142 Mo. 266; Turner v. Edmonston, 210 Mo. 411.
   GRAVES, J.

Plaintiff sues in two counts. By the first, which is an ordinary count in ejectment, he asks for the possession of one hundred and sixty acres of land in Polk county. By the second count, which is in the nature of a bill in equity, and in which he pleads all of his evidence, he seeks to cancel certain deeds covering said land, charging, among other things, collusion and fraud. This count is exceedingly lengthy and it will serve no good purpose to detail it further, as all the facts proven were fully pleaded and a statement of the facts proven will be sufficient to indicate the questions at issue.

Defendants filed appropriate answers and reply was in conventional form.

Facts proven and admitted make a case in outline, as follows: In August, 1860, James Smith obtained a patent to the land in dispute. March 1, 1895, James Smith and wife conveyed by warranty deed to Thomas H. N. Smith. December, 18991, Thomas PI. N. Smith, joined therein by his wife, by quitclaim deed, conveyed the land in dispute to the plaintiff, but this deed was never placed of record. Plaintiff says that he sent this deed in a letter addressed to the recorder of Polk county for record shortly after it was made to him, requesting the recorder to send the amount due and he would remit the amount but that he never heard anything further until he received the deed in the mail in an envelope postmarked, “Bolivar, Mo.,” but there was no letter enclosed. Before receiving this first deed in return, and thinking the same lost, plaintiff procured from Thomas H. N. Smith and wife a warranty deed to the land, which was of date October 15, 1903.

Plaintiff further says that on May 17, 1902, he went to the collector’s office, then in charge of P. M. Wood, collector, and requested the taxes due upon the land in question and Mr. Wood gave him a memorandum showing the taxes due to be $12.32. This memorandum was in evidence. Plaintiff then discovered that the land was assessed at $400', whilst adjoining quarter sections were only assessed at $200. Mr. Wood agreed to take up the matter with the county, court, and on August 6, 1902, Mr. Wood wrote plaintiff that the valuation had been cut down to $200, whereupon the plaintiff wrote for the amount of the taxes, and receiving a statement that they were $7.99 for the years 1900, 1901 and 1902, he sent said amount by postoffice money order to P. M. Wood, collector, and received two tax receipts in return, one for $5.69 for tire year 1900, as expressed on the face, but the collector, Wood, says that it should have been for the years 1900 and 1901, and the form of the receipt would so indicate. The other was for $2.30 for year 1902. Both were of date August 16, 1902. Wood’s letter of August 6, supra, was in evidence. It also appears in the record that after Mr. Wood understood that the county court had reduced the taxes to one-half of the original amount, he placed in pencil the several amounts due in the back tax book. An exemplified copy of the book was in evidence and such pencil marks were thereon. It also indicated, as per stipulations filed, a tax receipt No. 705 to Smith of date August 16, 1902, and here it might be well to state the two tax receipts above mentioned were made out in the name of Smith. It also indicated that on June 10, 1902, a back taxbill had been made out numbered 25. By the stipulation it was admitted that the pencil marks as to the taxes were made prior to August 16, 1902, the date of the tax receipt.

By T. H. N. Smith, the plaintiff showed that he, Smith, was a dentist in Maysville, Kentucky, where plaintiff also resided; that they were boys together; that he got the land from his father, James Smith; that T. H. B. Dunnegan was his agent for the payment of taxes; that through Dunnegan he had paid the taxes up to and including the year 1899, and produced Dunnegan’s letter with reference to the taxes for the year 1896 and said that he had others of a similar character; that Dunnegan would send him notices each year and he would send the money; that in December, 1899, he sold the land to Zweigart and made him a deed to it; that in the fall of 1900 he got the usual notice from Dunnegan about the taxes for the year 1900, and wrote him that he had sold the land to Zweigart; that October 15, 1903, he made Zweigart a second deed; that Dnnnegan acted as agent for his father; that he (witness) did not know suit had been brought for the.taxes when he made this second deed; that he never heard from Dunnegan after he notified him that Zweigart owned the land.

The record shows that Zweigart paid .the taxes for-1903 and introduced his receipt in evidence. It further appears that on this tax bill No. 25, suit was brought for the taxes of 1900, and at the August term of the circuit court, on August 22, 1902, a judgment was rendered in favor of P. M. Wood, collector, for such taxes. It will be observed that this judgment was seven days after the tax receipt for the years 1900 and 1901. Under this tax judgment the land was sold and bought in by T. H. B. Dunnegan on December 8, 190-2, and a sheriff’s deed made to him of said date. May 27, 1904, Dunnegan by quitclaim deed conveyed to defendant John I. Beed.

Eor the defendant, Dunnegan testified' that he had paid taxes for Smith and his father; that he had never heard that plaintiff owned the land until after he purchased it; that before the tax sale he learned that the taxes had been paid in part; that he knew after suit was brought that somebody had paid part of the taxes and that he found that out before the sale; that he didn’t know whether the taxes had been paid before judgment was rendered or not; that he didn’t examine to see the date when the taxes were paid; that the collector or clerk told him the costs were not paid; that he supposed the land was selling for costs; that he received no letter from Thomas H. N. Smith in 1900 or at any other time notifying him that the land had been sold to plaintiff; that the land was sold by forty-acre tracts.

P. M. Wood, the -collector, testified that he remembered the circumstance of the plaintiff coming to his office sometime in 1902 in regard to some taxes; that he did not remember the name, bnt he was there looking after some back taxes and was kicking about the amount; that he, witness, went before the county court and told them the assessment was too high and he understood they reduced it, and notified plaintiff and plaintiff sent him the taxes; that to his best recollection Zweigart was in his office about the first of August; that he didn’t remember whether the statement of May 17 was sent to him or given to 'him in person; that Zweigart was only in the office once; that he at that time arranged with him (witness) to bring the matter to the attention of the county court; that in sending him a statement in August he would have gone to the back tax books for the amounts and if he had examined it and it had shown a suit pending he thought he would have so notified Zweigart.

The defendant, John I. Reed, testified in his own behalf that he bought this land in a deal for about two thousand three hundred acres; that most of it belonged to the Dunnegan and Bushnell estate, but this particular tract belonged to Judge Dunnegan and he paid him $400 for it; that this was full value; that he thought he was getting good title and had no information that the taxes were paid in whole or in part prior to the tax sale; that he knew he was buying through a sheriff’s deed, but had no knowledge of any irregularities; that he did not know of Zweigart’s claim until he got a letter from him in 1904, which letter the plaintiff had placed in evidence.

P. M. Wood, recalled, says that whilst tax receipt No. 705 purports to be -for year 1900, it was in fact for 1900 and 1901; that the county court told him they would reduce the tax one-half and then he changed his books.

It was admitted that the county court records did not show any reduction of the taxes on this land.

Upon this evidence the court made a finding of facts as follows:

“I find the facts as follows

“The second count of the petition charges numerous frauds against the defendant, Dunnegan and Wood. I do not bfelieve that these men intended to do the plaintiff any wrong or that they intended to take advantage of him in any way to get his land. I believe the testimony of these witnesses, and am satisfied that they did not act in concert, and did not commit any fraud.

“I find that the plaintiff was in Bolivar about May 7, 1902, and arranged with the collector, Wood, for Wood to go before the county court and try to secure a reduction of the assessment of this land. Wood went before the county court at its August term, and was no doubt informed by the court, or by some judge of the court, that the assessment would be reduced and notified plaintiff that the reduction had been made. The county court had no right or power to reduce the assessment on this land, and as a matter of fact it did. not reduce the assessment or tax on the land, and made no entry in regard to the matter; but the county court is sometimes not very careful about its methods of proceeding, and Wood thought the assessment had been reduced.

“Wood notified the plaintiff what the taxes amounted to on the basis to which they had been reduced by the court, and plaintiff remitted the amount to Wood and received Wood’s receipt therefor, dated August 16th. After receiving the receipt from Wood, the plaintiff had a right to consider the taxes paid and to rest easy as to that matter.

“Wood acted in good faith in the matter. I am satisfied that he never had in mind the identity of this land when he made out a tax bill against it. The collector has so many transactions that it is very easy for him to overlook a matter of this kind.

“It may have been that his attorney was partly to blame for taking judgment for the taxes, but at any rate I am satisfied that Wood did not intend any wrong, and that he merely failed to identify the transactions with the land in the tax suit.

“Dunnegan saw the land advertised for sale under the tax judgment and execution issued thereon, and as he owned other land in the same vicinity be wanted to buy it. Just before the sale took place he was informed by Wood that the tax had been paid, but not who had paid it, and the court officers told him that the costs 'were unpaid, and that the land was selling for the costs, and Dunnegan supposed they had a right to sell it for the costs. But he should have gone further and ascertained the whole facts, and his failure to do so operated a wrong to plaintiff's rights that he should be relieved from as against Dunnegan.

“The tax proceedings are regular on their face, and I am satisfied that the land was sold by the smallest legal subdivision.

“The defendant, when he bought the land from Dunnegan, knew nothing about the plaintiff having paid the taxes, and bought the land in good faith, and for value. He purchased the land along with a large tract — some twenty-three hundred acres — and received an administrator’s deed to the most of the land, and supposed he was getting a good title. As he took the land by a quitclaim deed, however, he took subject to plaintiff’s equitable claim. He stands in no better position than Dunnegan did, and plaintiff is therefore entitled to relief. ’ ’

Judgment was for plaintiff upon both counts save and except it was adjudged that plaintiff should pay defendant $50, presumably the amount paid at the tax sale with interest, although the judgment does not so state.

After unsuccessful motion for new trial, the defendant appealed. Such is the record.

I. The first material question to be determined in this cause is the state of the equities, if any, between plaintiff and Dunnegan, the purchaser at the tax sale. Dunnegan knew that Smith and his (Smith’s) father had been owners of the land, for each year up to 1899 he had been paying taxes for them. He also knew that for some cause Thomas H. N. Smith had ceased to pay taxes in 1899. Smith testifies that he wrote Dunnegan that he would not pay the taxes for 1900, because he had parted with the title. This, of course, is denied by Dunnegan, and the second count of the answer being equitable, we have a right to review the evidence and are not bound by the findings of fact by the chancellor, nisi. Dunnegan knowing that Smith had not been paying taxes, also knew that some one had paid the taxes. He admits that he had such knowledge before his purchase. With the knowledge of the fact that some one had paid the taxes, he was at least placed upon inquiry. Had he made inquiry he would have found from the collector’s book evidence that a tax receipt had been given for the taxes. Had he made further inquiry he could have ascertained that the real owner of the land was not Smith but Zweigart, because the collector Mr. Wood had been informed on May 17 that Zweigart was the owner and had been in correspondence with Zweigart about the taxes, and had even received the taxes from Zweigart and issued receipts therefor. Dunnegan being informed, as he was, of the fact that the taxes were paid was placed in a position which demanded of him an inquiry about the tax proceeding before purchasing, and had he gone to the one source of information, as to when and by whom taxes were paid, he would have been fully advised that as a matter of fact the suit was not instituted against the real owner, for the collector knew the fact of Zweigart’s claim of title and knew that the taxes had heen receipted for prior to judgment.

Had Dunnegan in fact known that the suit was not against the real owner, although against the record owner, the tax deed unquestionably would be unavailing as between him and the real owner. [Stuart v. Ramsey, 196 Mo. l. c. 415, and cases therein cited.]

And further, if he had such notice as would have placed a prudent man upon inquiry as to the facts, and such inquiry would have revealed the fact that the real owner had not been sued, then he would be in the same position as if he had actual knowledge of the fact. In fact, such would be construed in a court of equity to be actual notice. [Sensenderfer v. Kemp, 83 Mo. l. c. 588; Swisher v. Sensenderfer, 84 Mo. 104; Life Ins. Co. v. Smith, 117 Mo. 292; Stuart v. Ramsey, 196 Mo. l. c. 415, et seq.]

Under the law, when applied to the evidence in the record, Dunnegan had actual notice not only that tax receipts had been given for the taxes, but more material than all that the real owner was not a party to the judgment under which he bought. As between plaintiff and Dunnegan the plaintiff would be entitled to judgment cancelling the deeds for this reason if no other.

But further, there is but little question that the collector, P. M. Wood, was apprised on May 17 that Zweigart was the owner of this land. The trial court so found and the finding is well grounded in facts. Wood was the collector who instituted the tax proceeding, June 10, 1902, nearly a month after the date he was informed that Zweigart owned the land. Section 9303, Revised Statutes 1899, so far as applicable, reads: “All actions commenced under the provisions of this chapter shall be prosecuted in the name of the State of Missouri, at the relation and to the use of the collector, and against the owner of the propertyKnowing that Zweigart oymed the land it was the duty' of Wood to have brought the suit in the name of the real owner rather than the record owner.

In the case of Stuart v. Ramsey, supra, very similar to the case at bar as to facts, the court said:

“But it is also clear that Mr. Ilethcock, the collector of revenue, had also been notified that the plaintiff was the owner of these lands, and that the plaintiff was in correspondence with him for the purpose of ascertaining the amount of the taxes and to make provision for the payment of the same, and although he was thus advised that plaintiff was the owner and was corresponding with him about the taxes, he brought suit against the Real Estate Company for these taxes, and at no time mentioned that fact to the plaintiff, and it was equally clear that under section 9303, it was his duty to have brought the suit against the plaintiff as the owner of the lands. It is plain to us that to permit the defendants to recover in this suit would be to deprive the plaintiff of his property without due process of law and in direct violation of the plain statutory provision requiring him to be notified as the owner of the land when the suit was brought for said taxes. He was not made a party to the suit and was not notified in any way that it was pending, and his agent, Mr. McCormick, had no notice of it until after the lands were sold, although the defendants and the collector had notice of his ownership. In our opinion the judgment of the circuit court upon the undisputed facts appearing in evidence should have been for the plaintiff, divesting whatever title, if any, the defendants acquired under and by virtue of their sheriff’s deed, and also any title that the Sligo Furnace Company may have acquired in and to said lands. ’ ’

The only difference between the Stuart case and this case is that in the Stuart case the purchaser had been told who was the real owner, whilst in the case at bar the purchaser had knowledge of such facts as ought to have prompted an inquiry and an inquiry from the proper source would have disclosed the real owner. In law the purchasers in each stand upon the same footing. With facts sufficient to place a person upon inquiry the legal notice follows.

The deed to Dunnegan in our judgment is void.

II.

There is no question hut that defendant Reed bought for full value, thinking he was procuring good title, although he was aware of the fact that a tax deed was a link in his,chain of title. But he took a quitclaim deed as his muniment of title, and he therefore took the title subject to all the equities existing between the plaintiff and Dunnegan, the purchaser at the tax sale and the grantee of defendant Reed. Such is the case-law of this State. [Condit v. Maxwell, 142 Mo. 266; Eoff v. Irvine, 108 Mo. 378; Hope v. Blair, 105 Mo. 85.]

From what has been said it follows that the judgment below was for the right party and it is accordingly affirmed.

All concur.