author: WOODSON, J.

text:
    LUCY M. HINKLE, Appellant, v. JONATHAN LOVELACE.
    Division One,
    May 29, 1907.
    1. PLEADING: Divorce: Non-Residence: Absconding: Contradictory. Under the statute of 1865, which said that “in suits in divorce if plaintiff, or other person for him, shall allege in his petition that defendants are non-residents of the State, or have absconded or absented themselves from their usual place of abode in this State, the clerk shall make an order of publication,” etc., plaintiff filed her petition for divorce, alleging therein that her defendant husband “is a non-resident of this State or he has absconded or absented himself from his usual place of abode in this State.” Held, that these allegations in the petition were contradictory, and destroyed' each other, and the petition did not state a cause of action, and for that reason the decree was void. [Per Woodson, J., with whom the other judges do not concur.]
    2. DIVORCE: Affidavit by Another. Under the statute of 1865 the petition in a divorce suit was required to be supported by' the affidavit of plaintiff. Such affidavit could not be made by a next friend; and a divorce decree founded on a petition not supported by the affidavit of plaintiff, although sworn to by another, was void.

      3. -: Affidavit: Sufficiency: Collusion. In a divorce suit an. affidavit to the effect that “the complaint is not made out of levity, or by collusion, fear or restraint between the plaintiff ■ and defendant,” etc., is jurisdictional, and the absence of such an affidavit is fatal to a decree; and that affidavit can be made only by plaintiff, whether she is a minor or not.
    4. '-: Subsequent Verification of Petition. A verification by plaintiff of her petition in the divorce suit on the day of final decree, by attaching thereto her own statutory affidavit, did not cure the prior defects of a petition supported by the affidavit of another in ordinary form or the absence of any affidavit as to collusion, etc., if the defendant was not then in court.
    5. PLEADING: Service by Publication: Amendment. An amendment of the petition in a material matter after publication of notice, where service is obtained by publication, is void and not binding on defendant, if he does not appear.
    6. -: Divorce: Verification. Hhe verification required by statute to be made and annexed to the petition in a divorce proceeding, is a material matter, a matter of substance, so that the court acquires no jurisdiction of the cause without it.
    7. LIMITATIONS: Divorce: Subsequent Marriage: Minority. Plaintiff was born in June, 1850, and was married in 1865, and in 1867 a decree was entered divorcing her from her husband, who died in 1872, which decree was void because not supported by her own affidavit and because there was no affidavit of absence of collusion, etc. She again married in January, 1868, and lived with that husband until 1903. In January, 1865, while still under age, she made a deed to the land for which she now sues, and another in October, 1868, after she reached her majority, but neither was acknowledged separate and apart from her husband. SeU, that the divorce decree being void, her subsequent marriage was void, and she had a complete cause of action against the defendant upon the death of her husband in 1872, and is barred by both the ten-year and the twenty-four-year Statute of Limitation.
    Appeal from Jasper Circuit Court. — Row. J. D. Perkins, Judge.
    Affirmed.

      Thomas é Hackney for appellant.
    (1) The petition for divorce was sworn to by plaintiff’s stepfather, the defendant in this action, who was described in tbe caption of tbe petition as tbe next friend of plaintiff and who acted as such next friend in the divorce proceeding under appointment by the court in which the petition was filed. This was a sufficient compliance with the divorce statute requiring an affidavit to accompany the petition. In such cases it is proper for the next friend to make any affidavit necessary to be filed by' plaintiff at the commencement, or during the progress, of the suit. Leftwick v. Hamilton, 9 Heisk. (Tenn.) 310; Deford v. State, 30 Md. 179; Strode v. Clark, 12 Ala. 621; Wilson v. Me-ne-chas, 40 Kan. 648; Tripp v. Gifford, 155 Mass. 109 ; Raming v. Railroad, 157 Mo. 515; sec. 9, ch. 161, G. S. 1865. The very purpose of the statute requiring an affidavit of the plaintiff in a divorce suit, to the effect that the action is not brought by collusion, is to protect the court from imposition and abuse of its jurisdiction and process, as well as for the protection of society; and the next friend in this divorce suit being the stepfather of the infant wife and familiar with all the facts pertaining to the marital relations between her and her then husband, Edmonds, was a very proper person to be appointed by the court to act as next friend and institute and prosecute the suit in her behalf. (2) A divorce obtained on a petition stating the plaintiff’s cause of action and to which there has been no affidavit annexed is not void, but is simply voidable and can not be attacked in a collateral proceeding. McCraney v. Mc-Craney, 5 Iowa 254. (3) The defendant having accepted from the plaintiff and her husband, Daniel Hinkle, the two deeds to himself, of date January 27,1868, and December 19, 1868, executed during the lifetime - of Daniel Edmonds, each deed describing the plaintiff and said Daniel Hinkle as husband and wife, and having entered into possession of the lands in controversy under said deeds, and having claimed possession thereunder from the date of their execution, is estopped by the recitals in said deed from questioning the validity of plaintiff’s divorce from her first husband, and from questioning the validity of plaintiff’s second marriage. Orthwein v. Thomas, 127 111. 554; Pinckard v. Melmine, 76 111. 453; Thrower v. Wood, 53 Ga. 458; Dickson v. Anderson, 9 Mo. 156; Glamorgan v. Greene, 32 Mo. 285; Tyler v. Hall, 106 Mo. 319; Hasenritter v. Kirchhoffer, 79 Mo. 242; West Mo-. Land Co. v. Railroad, 161 Mo. 604; Bradley v. Rappell, 133 Mo. 553.

      McReynolds & 'Halliburton for respondent.
    (1) Where constructive service is authorized instead of personal, there must be a strict compliance with the statutory requirements. Myers v. McRay, 114 Mo. 377; Parker v. Barton, 172 Mo. 85; Charles v. Morrow, 99 Mo. 646. (2) The petition in the divorce case alleges “that defendant is a non-resident of this State; or that he has absconded or absented himself from his usual place of abode in this State, so that the ordinary process of law cannot be served upon him.” Which allegations are contradictory and did not authorize the publication issued against defendant. G. S..1865, chap. 164, sec. 13, p. 655; Parker v. Burton, 172 Mo. 90; Harness v. Cravens, 126 Mo. 246; Tooker v. Leake, 146 Mo. 433; Dickenson v. Cooley, 15 Kan. 269; 2 Cyc. 22. (3) (a) The statutory affidavit to the original petition in the divorce case, being signed and sworn to by J. Lovelace as agent for plaintiff and the statute requiring such affidavit to be made by plaintiff, the court on said petition did not have jurisdiction to order publication or to decree divorce, as there was no authority in the statute for an agent or next friend to make the statutory affidavit. G. S. 1865, p. 460, ch. 114, sec. 2; Bryant v. Harding, 29 Mo. 347; Huthsing v. Mans, 36 Mo. 107; Norvell v. Porter, 62 Mo. 312; Quigley v. Bank, 80 Mo. 296; 2 Bishop, Marriage and Divorce (5 Ed.), sec. 306 A; Bank v. Tallman, 15 Wis. 92; Hadden v. Larned, 83 Ga. 636. (b) It is necessary, under a statute like the General Statute 1865, in order that the court may take jurisdiction, that all the requisites mentioned in the affidavit shall be set out and sworn to by plaintiff. 14 Cyc. 678; Brown v. Brown, 138 Ind. 257; Eastes v. Eastes, 79 Ind. 363 ; Stewart v. Stewart, 28 Ind. App. 378; Moore v. Moore, 130 N. C. 338; Nichols v. Nichols, 128 N. C. 108; Ladd v. Ladd, 121 N. C. 118. (c) The affidavit of absence of collusion and good faith is jurisdictional and the absence of the affidavit to that effect is fatal. Ayres v. Gartner, 90 Mich. 380; Hopkins v. Hopkins, 132 N. C. 22; Rayl v. Rayl (Tenn.)', 64 S. W. 309; DeArmond v. DeArmond, 92 Tenn. 40. (d) An affidavit must be made, of course, by a person having knowledge of the facts. 2 Cyc. 5; Cheek v. James, 2 Heisk. (Tenn.) 170; Baker v. Knickerbocker, 25 Kan. 288. (e) Where a statute specifically points out who may make a certain affidavit, no one else can make it, or where it is prescribed by statute or rule of court that an affidavit shall be made by the party in person, no one else can make it. 2 Cyc. 5; Steinbach v. Leese, 27 Cal. 295; State v. County, 5 Nev. 317; Brown v. Walker, 8 N. Y. Supp. 59; Ex parte Aldrich, 1 Den. (N. Y.) 662; In re Heath, 40 Kan. 333; Ex parte Shumway, 4 Denio 258; Baker v. Knickerbocker, 25 Kan. 288. (f) Where it appears that an affiant could have had no personal knowledge as to the material allegations, the affidavit is defective. 5 Cyc. 24; Atchison v. Bartholow, 4 Kan. 124; Lewis v. Connelly, 29 Neb. 222; Gawtry v. Doane, 51 N. Y. 84; Dyer v. Flint, 21 111. 80; Neal v. Gordon, 60 Ga. 112; Ferris v. Bank, 158 HI. 238; Hodgman v. Barker Co., 14 N. Y. 574; Cook v. De LaGarza, 13 Tex. 431; Campbell v. Hall, 1 Kan. 488. (g) The affidavit and jurat is part of the petition and if defective and not in compliance with the statute is fatal to the proceedings. Burnes v. Burnes, 61 Mo. App. 618; McQuillin, Pleading & Practice, sec. 295; Baryhydt v. Alexander, 59 Me. App. 192. (h) The right to petition for divorce is a personal one; no one can file or maintain except the party; neither guardian or next friend can file or maintain action for an infant; she must make the statutory affidavit; guardian or next friend is not competent to do so. Eichardson v. Eichardson, 50 Vt. 119; 2 Bishop on Marriage & Divorce (6 Ed.), sec. 306 A; Besore v. Be-sore, 49 Ga. 378; Bradford v. Abend, 89 111. 78; Worthy v. Worthy, 36 Ga. 45; Mohler v. Shanks, 93 Iowa 273; ’ Birdsell v. Birdsell, 33 Kan. 433; Winslow v. Winslow, 7 Mass. 96; Jones v. Jones, 18 Me. 308; Amos v. Amos, 4 N. J. Eq. 171; Tippel v. Tippel, 4 How. Pirac. 346; Wright v. Wright, 3 Tex. 168; G. S. 1865, p. 460, sec. 1, chap. 114; p. 651, sec. 8, chap. 161.
   WOODSON, J.

This is an action in ejectment, and the petition is in the usual form, instituted in the circuit court of Jasper county, whereby the plaintiff sought to recover the undivided one-half interest in and to certain real estate situated in said county, with damages for the detention thereof, and rents and profits.

The answer admitted the possession of certain portions of the land, and denied he had the possession of the remainder; that he had bought plaintiff’s interest in the land, paying $300 therefor, and that he had expended money for improvements; that plaintiff had stood by and knew of defendant making improvements without objection and making no claim to the land; that she had not tendered back the purchase money nor paid for the improvements and taxes; and that she was estopped by her conduct from prosecuting her action.

Defendant pleaded the ten, twenty-four and thirty years’ Statute of Limitations; and that plaintiff’s marriage to Daniel Hinkle in 1867 was void; that her first husband, Daniel Edmonds, was alive at said time and did not die until some years afterwards; and that she was divorced from Daniel Hinkle in March, 1903.

The plaintiff’s reply denied the allegations of the answer and further averred that at all the times mentioned in the answer she was a married woman and continued so until March, 1903.

It was admitted on the trial that Emberson Herold was the common source of title; that he died intestate in June, 1864, owning three hundred and twelve and one-half acres of land, of which the land in controversy is a part, and leaving surviving him as his heirs at law his six children, one of whom is the plaintiff; and that the value of the rents and profits of the land sued for is $2 per acre per year.

The record of a partition suit in the common pleas court of Jasper county was read in evidence, by which it appeared that in an action between part of the heirs of Emberson Herold, deceased, and the defendant and others, the defendant had claimed the one-sixth interest of plaintiff and also another one-sixth interest purchased by him from one of the other heirs, and that the land in controversy was set off to him as his two-sixths' interest in the estate. The plaintiff was not a party to that suit.

It was shown by the plaintiff’s testimony that plaintiff was born on June 7, 1850; had been twice married, first to Daniel Edmonds in the fall of 1865, and with whom she lived three months and was then divorced from him October 1,1867; that she married Daniel Hinkle January 1, 1868, and continued as his wife until divorced from him June 22,1903; that Daniel Edmonds died after plaintiff’s marriage with Hinkle; that defendant was plaintiff’s stepfather after having married plaintiff’s mother, the widow of Emberson Herold.

Defendant’s evidence established the following facts, to-wit:

That plaintiff and Daniel Edmonds were married in November, 1865, and separated in March, 1866; that on January 9,1867, plaintiff filed a petition for divorce from Daniel Edmonds. Said petition was sworn to by J. Lovelace as agent for plaintiff, the affidavit otherwise being in statutory form for divorce proceedings. In the body of the petition is the following allegation: “That defendant is a non-resident of this State or that he has absconded or absented himself from his usual place of abode in this State, so that the ordinary process of law cannot be served upon him.” Upon which allegation an order of publication was made, notifying Daniel Edmonds to appear at the March term, 1867. At which term there was an interlocutory decree in favor of plaintiff. At the October term, 1867, on October 1, plaintiff by leave of court amended her petition, the amendment consisting of the statutory affidavit being written on to' the original petition and subscribed and sworn to by plaintiff and on the same day final decree was entered in favor of plaintiff. On January 1st, 1868, plaintiff went through a marriage ceremony with Daniel Hinkle and lived with him as his wife until sometime in 1903.. The record shows that Daniel Edmonds died in Joplin, Missouri, some four or five years after said decree of divorce and plaintiff’s marriage to Hinkle.

Defendant received two deeds from plaintiff for her interest in this land, one in January, 1868, while still under age, and one in December, 1868, after she became of age, but while living with Daniel Hinkle as his wife, both acknowledged by plaintiff and Daniel Hinkle, but in neither- does the certificate show she was examined separate and apart, etc. .

Defendant took and held possession of said land, under said deeds, for thirty-five years, and paid all the taxes thereon, and the legal title and equitable title thereto emanated from the United States more than thirty-five years before the commencement of this action.

The canse was tried by the court without the intervention of a jury, and, at the request of plaintiff, the court gave five instructions, and refused the following:

“The court declares the law to be that the decree of divorce granted in favor of the plaintiff against .Daniel Edmonds on the first day of October, 1867, was valid and effective to divorce the plaintiff from said Daniel Edmonds.”

To which action of the court, in refusing said instruction, the plaintiff duly excepted.

The court over the objection of the plaintiff gave declarations of law on behalf of the defendant to1 the effect that the decree of divorce obtained by the plaintiff from Daniel Edmonds was void for the reason that the statutory oath attached to the petition was sworn to by the next friend instead of the plaintiff, and. that the marriage between the plaintiff and Daniel Hinkle was void, and that in consequence the thirty-years’ Statute of Limitation was a bar to the recovery by the plaintiff.

Other declarations of law were given- and refused, all showing that the theory of the finding for the defendant was that the decree obtained from Daniel Edmonds was void and that the marriage to Daniel Hinkle was likewise void, and that the Statute of Limitations commenced to run against the plaintiff at the instant of the death of Daniel Edmonds.

The court found the issues for defendant, and rendered judgment accordingly. Plaintiff in due time filed motions for a new trial and in arrest, which were, by the court, overruled, and exceptions were duly saved, and plaintiff has brought the cause here by appeal.

OPINION.

I. Plaintiff’s contention is, that, when, in 1864, her father, Emberson Hérold died, seized of the land described in the petition, she, under the Statute of Descent and Distribution, inherited an undivided one-sixth of it, and, being a minor at the time and married before she attained her majority, the Statute of Limitations would not run against her until the dissolution of her marriage contract, which was on June 22, 1903; and that when the land was partitioned and her portion was decreed and set over to defendant, ejectment will lie against bfm for her share of the land, notwithstanding the execution and delivery of the two deeds by her to the defendant, purporting to convey the land in controversy, for the reason, as she contends, both of them are void because she was not examined separate and apart from her husband when she acknowledged them, as required by statute.

The defendant, upon the other hand, contends that the decree of divorce rendered in plaintiff’s favor against Daniel Edmonds, her first husband, on October 1st, 1867, was absolutely null and void, and that she continued to be his lawful wife until his death, which occurred in 1872 or 1873, and that on that account her marriage to Daniel Hinkle, on January 1, 1868, was absolutely null and void, because she could not have two lawful husbands at the same time.

Under that state of facts, defendant contends that when Daniel Edmonds, her first husband, died, she was of age, and the Statute of Limitations began to run against her, which was at least thirty years before the institution of this suit.

Prom these contentions of the plaintiff and defendant it is readily seen that the vital and turning point in the case is the validity or invalidity of that decree of divorce. If it is valid, then the plaintiff must recover the land; but if it is invalid, then the defendant must be adjudged the lawful owner thereof. So this presents squarely the question, is that decree valid or invalid?

In the first place, the defendant assails the sufficiency of the petition, upon which the decree is based, for two reasons; because, first, it alleges, “that defendant is a non-resident of this State; or that he has absconded or absented himself from his usual place of abode in this State so the ordinary process of law cannot be served upon him,”

Defendant contends that these allegations are contradictory of each other, because a party cannot be a non-resident of this State and abscond or absent himself from his usual place of abode in this State at the same time; and, for that reason, the allegations were not sufficient and did not authorize the order of publication made in the divorce proceedings instituted against the defendant in that case.

The statute in force at the time that suit was begun respecting service by publication was as follows: “In suits in . . . divorce ... if the plaintiff, or other person for him, shall allege in his petition .....that part or all of the defendants are nonresidents of the State, or have absconded or absented themselves from their usual place of abode in this State etc., the clerk shall make an order of publication,” etc. [Sec. 13, chap. 164, Gen. Stat. 1865.]

In discussing a similar question, which arose under this same section, Judge Brace used this language: “It appears upon the face of the record in the tax suit, that service of notice by publication was ordered on the ground that the court had been ‘duly informed by evidence of the plaintiff herein that said Samuel Burton is a non-resident of the State of Missouri. ’ In order that non-residence may afford a basis for an order of publication, the statute requires the allegation of that fact in the petition or in an affidavit filed with the same, or some time thereafter. The petition in that suit "contained no snch allegation, nor was any affidavit containing such an allegation filed therewith or thereafter. On the contrary, the petition was silent on that subject, the said defendant was sued, and the summons issued against him as a resident defendant, and the allegation contained in the only affidavit filed' in the case was that the said defendant ‘had absconded and absented himself from his usual place of abode in this State.’ Thus, it appeared hoth affirmatively and negatively that said defendant id as a resident and not a non-resident of the State, and under the statute the court had no authority to order service on him’ as a non-resident hy publication.” [Parker v. Burton, 172 Mo. l. c. 91.]

And Judge Sherwood, in construing said section, said: “So that we have here presented a defendant sued as a non-resident, summons issued against him as a resident, and publication issued against him as a' resident who could not be found. In short, the order of publication was a clear departure from the allegations of the petition and affidavit.” [Harness v. Cravens, 126 Mo. l. c. 247.]

The two cases last cited show that the word “abode” as used in said section 13 means and is used in the same sense as the word “residence” is used.

Judge Brewer, in discussing a similar statute, said: “The grounds for the attachment alleged in the affidavit were, ‘that the defendant is a foreign corporation, or a non-resident of Brown county.’ There are two objections to this — one that it is in the disjunctive. [Drake on Attachment, sec. 101.] .... There was, therefore, no warrant for the issue of the attachment, and the plaintiff in the suit obtained no lien on the goods by the service of the writ.” [Dickenson v. Cowley, 15 Kan. l. c. 273.]

“An affidavit is insufficient which states in the alternative the grounds on which relief is sought.” [2 Cyc., p. 22, par. 3c; Collins v. Beebe, 54 Hun 320-1, 7 N. Y. Supp. 442; Leonard v. Boman, 21 N. Y. Civ. Proc. 237-9, 15 N. Y. Supp. 822; Billings v. Noble, 75 Wis. 329, 43 N. W. 1131; Harness v. Cravens, 126 Mo. 246 to 253.]

We are unable to understand how a party can be a “non-resident of this State” and at the same time have “a usual place of abode or residence in this State,” and vice versa — he cannot have “a usual place of abode or residence in this State, ’ ’ and at the same time be “a non-resident of the State.” The one allegation contradicts, counteracts and nullifies the other as completely as if neither had been written in the petition, and for that reason there was no allegation in the petition or affidavit filed in the case which authorized and upon which to base the order of publication against the defendant in the divorce proceedings. The foregoing conclusions are fully sustained by the authorities cited. [See, also, Tooker v. Leake, 146 Mo. l. c. 431.]

The plaintiff controverts the conclusions above stated, and contends that the alternative allegation of non-residence of defendant, or his abscondence from his usual place of abode in this State, is not a jurisdictional matter, but is simply a defect which can only be taken advantage of by special demurrer or motion to make the pleading more definite and certain. No authority is cited supporting that position, while all the authorities to which our attention has been directed hold to the contrary. We, are, therefore, of the opinion that the defendant in that suit was not properly served.

It may not be out of place to state here that when constructive service is authorized, instead of personal, there must be a strict compliance with the statutory requirements. [Myers v. McRay, 114 Mo. 377.]

II. It is' next contended by defendant that the decree of divorce is a nullity, because the petition upon which it is based does not state facts sufficient to constitute a cause of action, because it was sworn to by one J. Lovelace as agent and not by the plaintiff herself, as required by the statute which was in force at the' time of the institution of that suit, which is as follows:

“Sec. 2. The circuit court shall have jurisdiction in all cases of divorce and alimony or maintenánce; and all such cases shall be tried by the court, and the like process and proceedings shall be had in such causes as are had in other civil suits, except the answer of the defendant shall not be under oath. The petition shall be accompanied by an affidavit, annexed thereto, that the facts stated therein are true according to the best knowledge and “belief of the plaintiff, and that the complaint is not made out of levity, or by collusion, fear or restraint between the plaintiff and defendant, for the mere purpose of being separated from each other, but in sincerity and truth, for the causes mentioned in the petition. The proceedings shall be had in the county where the plaintiff resides; and the process may be directed, in the first instance, into any other county in the State where the defendant resides.” [Sec. 2, chap. 114, p. 460, Gen. Stat. 1865.]

It will be observed that this statute requires that “the petition shall be accompanied by an affidavit annexed thereto, that the facts stated therein are true according to the best knowledge and belief of the plaintiff, and that the complaint is not made oiit of levity, or by collusion, fear or restraint between the plaintiff and defendant, for the mere purpose of being separated from each other, but in sincerity and truth, for the causes mentioned in the petition.”

From a careful consideration of this statute, it is clear the Legislature intended that the plaintiff in divorce suits should, in person, swear to the petition. It not only in express terms commands that to he done, but it goes further and prescribes the things to be stated in the affidavit which rest peculiarly and exclusively within her own knowledge, and in the very nature of the things to be sworn to by her, no one else could know whether they are true or false. How could any one save the plaintiff know that the complaint is not made out of levity, by collusion, fear or restraint, or that the suit was not brought for the mere purpose of being separated from each other, or that she is sincere in the prosecution of the suit? They are matters that are securely locked up in the mind and conscience of the moving party, and no one else could know those things at the inception of the divorce suit before investigation had. It is not pretended that there is express authority for an agent to make the affidavit, and it is not perceived how it can be reasonably implied from anything in the statute. These views are fully sustained by the following authorities: Bryant v. Harding, 29 Mo. 347; Huthsing v. Maus, 36 Mo. 107; Norvell v. Porter, 62 Mo. 312; Quigley v. Bank, 80 Mo. 296-7; In re Heath, 40 Kan. 333; Western Bank v. Tallman, 15 Wis. 92; Hadden v. Larned, 83 Ga. 636.

The right to bring a suit for divorce is strictly personal and under the exclusive volition and control of the injured party.

“If a guardian or next friend has the power insisted upon, we desire to learn whence it is derived. It certainly is not given by express provision of law, nor can it legitimately be deducted from the personal custody of the ward, which imposes certain duties on the guardian which he must perform. Whether after gross and repeated infidelities the wife will continue to regard him as her husband and live with him as his wife is for her decision only. Death only can dissolve the marriage relation without her consent, and no divorce can or ought to be had in his, or any case, but through the agency and will of the injured party.” [Worthy v. Worthy, 36 Ga. 45; 2 Bishop, Marriage & Divorce (5 Ed.), sec. 306a.]

This personal character of the suit shows more clearly why the plaintiff only can make the affidavit to the petition. [Richardson v. Richardson, 50 Vt. 119; Besore v. Besore, 49 Ga. 378; 2 Bishop, Marriage & Divorce (6 Ed.), sec. 306a; Winslow v. Winslow, 7 Mass. 96; Birdzell v. Birdzell, 33 Kan. 433; Jones v. Jones., 18 Me. 308; Amos v. Amos, 4 N. J. Eq. 171; Wright v. Wright, 3 Tex. 168.]

Where the statute specifically points out who may make a certain affidavit, it can be made by no one other than those specified. [2 Cyc., p. 5, par. A and P.; Steinbach v. Leese, 27 Cal. 295; State v. County, 5 Nev. 317; Ex parte Aldrich, 1 Denio 662; In re Heath, 40 Kan. 333; Ex parte Shumway, 4 Denio 258; Baker v. Knickerbocker, 25 Kan. 288.]

According to these authorities, clearly Lovelace could not make the affidavit for the plaintiff, verifying the petition, in the divorce proceedings, and for that reason the petition in law stands as though it had never been sworn to.

The plaintiff cites many authorities sustaining the proposition that the next friend may make an affidavit for the minor when necessary to be filed by plaintiff at the commencement or during the progress of the suit, but none of the cases were suits for divorce. The rules governing cases involving property rights, are not applicable to divorce cases. [Ayres v. Gartner, 90 Mich. 380; Hopkins v. Hopkins, 132 N. C. 22; Rayl v. Rayl, 64 S. W. 309; DeArmond v. DeArmond, 92 Tenn. 40.]

HI. The affidavit of the absence of collusion, fear or restraint and of good faith is jurisdictional, and the absence of such affidavit to that effect is fatal.

In discussing a similar statute of Michigan, the Supreme Court of that State said: “This is a statutory requirement and is mandatory .... Nor can this defect be waived by any act of defendant. The policy of the statute is to prevent collusive proceedings between the parties for divorce. If in the power of defendant to waive the provision, the statute may be easily nullified.” [Ayres v. Gartner, 90 Mich. 381.]

In the last case cited the Supreme Court, by mandamus, compelled the court below to dismiss the cause pending before it because it had no jurisdiction to hear and try the cause, in the absence of such an affidavit.

In discussing this same question, the Supreme Court of North Carolina used this language: the plaintiff’s ease as the court is without jurisdiction unless the proper verification of the complaint is made. Verification in the very manner prescribed by the section is essential to confer jurisdiction upon the court to entertain the action or proceeding therein.” Motion to dismiss was sustained. [Hopkins v. Hopkins, 132 N. C. l. c. 23-4; Martin v. Martin, 130 N. C. 27; Holloman v. Holloman, 127 N. C. 15; Rayl v. Rayl (Tenn.), 64 S. W. 309.]

“The verification is in the following words: ‘Julia A. Hopkins, being duly sworn, says she has heard read the foregoing complaint; that the facts set forth therein are true of her own knowledge, except the facts therein set forth on information and belief, and as to them she believes it to be true.’ This verification does not conform to the requirements of the Code, section 1287. In the case of Nichols v. Nichols, 128 N. C. 108, this court has said: ‘It is necessary, in order that the court may take jurisdiction of the matter of divorce, that each and all of the requisites mentioned in the affidavit required by the Code, section 1287, shall be set out and sworn to by the plaintiff. The requirements are mandatory. ’ This is not like the case of a complaint in an ordinary action which may or may not be verified under section 257 and 258 of the Code, as the plaintiff elects. The plaintiff is not required by these sections to verify his pleadings, but, in the case of a complaint in an action of divorce, the law is different, as the very language and purpose of section 1287 of the Code show it was intended that its provisions relating to the verification of the complaint should be mandatory and a failure to comply with the requirements of that section is fatal to

The Supreme Court of Tennessee said:

“The defects in the affidavit in question are: “First. It does not state that the complaint is not made out of ‘levity.’
“Second. It does not state that the complaint is not made out of collusion ‘with the defendant.’
“Third. It does not state that the complaint is made for the ‘causes’ mentioned in the bill.....
“The peace and happiness of society largely depend upon maintaining the marriage relation, and the policy of the State is to encourage and maintain that relation. For the protection of society against the manifold evils that would necessarily flow from the wanton and indiscriminate severing of that relation, the Legislature has declared that divorces shall not be granted, except for certain causes, which are distinctly set out in the statute; and has prescribed' what allegations shall be made in the bill or petition for divorce, and how the bill or petition shall be verified. All these requirements of the statute are for the benefit of society, and not for the benefit of the parties. They are intended to guard against the bad faith and collusion of the parties. The application must show a clear and meritorious case under the statute before the court can take jurisdiction of the cause. The statutory affidavit is an essential part of the application, and without it there is no jurisdiction.” The bill was dismissed. [DeArmond v. DeArmond, 92 Tenn. l. c. 42, 46; 14 Cyc., p. 678, par. J, and notes; Moore v. Moore, 130 N. C. 338; Eastes v. Eastes, 79 Ind. 363.]

The plaintiff cites us to hut one case which holds contrary to the doctrine above stated, and that is the case of McCraney v. McCraney, 5 Iowa 254. This case is against the great weight of authority in this country, and it seems to us to be against the letter and spirit of our statute upon the subject in hand, and is contrary to sound public policy, and for these reasons we refuse to follow it.

The decree for divorce in the ease of plaintiff against Daniel Edmonds, her first husband, is absolutely void for two reasons; because, first, as we have heretofore pointed out the fact, that there was no proper allegation contained in the petition filed in that cause which authorized the court or clerk to issue the order of publication against the defendant, and for that reason the court acquired no jurisdiction over him; and, second, the court acquired no jurisdiction of the cause, because the petition was fatally defective, for the reason that it was not subscribed and sworn to by the plaintiff.

The subsequent verification of the petition, on the day the final decree was entered in the cause, did not cure the defects, because the defendant was not in court at that time.

For the reasons stated the decree was subject to collateral attack in this cause. [Jewett v. Boardman, 181 Mo. 647; Russell v. Grant, 122 Mo. 180; Black on Judgments, secs. 83, 84, 218, 219, and 220-246; 17 Ency. of Plead. & Prac. p. 52, par. 2.]

This would be true even conceding the defendant had been properly served by publication in the divorce suit because an amendment of the petition in a material matter after publication of notice is void and not binding on the defendant. “A petition cannot, therefore, be amended in a matter of substance, after publication of notice, so as to make a valid judgment thereon against a defendant who does not appear.” [Leavenworth Railroad v. Atchison, 137 Mo. l. c. 230; Janney v. Spedden, 38 Mo. 295.]

The verification required to he made and annexed to the petition in divorce proceedings is a matter of substance, so much so that the court acquires no jurisdiction of the cause without it. ' See authorities cited under paragraph three of this opinion.

It must, therefore, follow according to the Leavenworth and Speddin cases, just mentioned, that the amendment made on the day of trial was void and of no effect.

IV. It follows from what has been before stated that the plaintiff upon the death of her first husband, which occurred sometime between 1872 and 1873, had a complete cause of action against defendant for the possession of the land, which he admits he is in possession of, and she has not asserted that right, notwithstanding the doors of'the courts have been open to her for nearly thirty years. Upon the undisputed facts of this case, it is perfectly clear that plaintiff’s cause of action is barred by both the ten and twenty-four years’ Statute of Limitations.

Several other questions have been presented and argued by counsel for both plaintiff and defendant which we have carefully considered; and, after concluding they could not change the conclusions here reached, we deem it unimportant to discuss them in this opinion.

For the reasons before stated, the judgment of the circuit court is affirmed.

Valliant, P. J., Graves and Lamm, JJ., dissent as to paragraph one; all concur as to rest of the opinion.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    DENA DOUGHERTY et al., Appellants, v. B. J. DOUGHERTY et al., Appellants.
    Division One,
    May 29, 1907.
    ■ 1. WILL: Power to Sell: Power to Mortgage. A will by which testator devised his property to his wife, for and during her natural life, with the discretionary power to sell any or all of Said property for the support of herself and children, did not give her power to mortgage the property, or to borrow money and secure its payment by a deed of trust on the property. The power to sell is not a power to mortgage or convey by deed of trust.
    2. REFORMING DEED: Mistake: Prior Agreement. Courts of equity will reform a deed where there is cogent and convincing proof of a mutual mistake, but a mutual mistake presupposes a prior or preceding agreement between the parties, and that agreement must of necessity be shown.
    3. -: -: Mutual: Scrivener. Where the mistake is in the description, and the scrivener acts- wholly for the grantee and in the absence of the grantor, the mistake shown to be his is not thereby shown to be mutual, but is unilateral.
    4. -:-: -: -: Pleading. A pleading that fails to allege that the alleged mistake in the description of the land was a mutual mistake of both grantor and grantee, is fatally defective. A necessary averment is that the scrivener (who admits that the mistake was his) acted under the direction of both grantor and grantee in drawing the deed; otherwise, the pleading does not charge the mistake to be mutual.
    Appeal from Knox Circuit Court. — How. Chas. D. Stewart, Judge.
    Affirmed in part and reversed and remanded in part.
    O. D. Jones for plaintiffs.
    (1) Tlie power in the will did. not authorize Ellen Dougherty to mortgage the land. Price v. Courtney, 87 Mo.- 387; McDonald v. Quick, 139 Mo. 484; Garland v. Smith, 164 Mo. 1. (2) A-court of equity does not interfere to correct an instrument “unless it also appears that its interference is necessary to prevent the perpetration of a fraud or some injustice.” Mann v. Best, 62 Mo. 496; Ins. Oo. v. Landis, 50 Mo. App. 116; HarHess v. Oo., 85 Mo. 619',- Schradski v. Albright, 93 Mo. 43. “When there is no1 fraud and; a party accepts a quitclaim deed, he is without remedy.” Smith v. Punk, 57 Mo. 239. The answer does not aver or show that the mistake sought to be reformed was a mutual one of both parties. It avers the' mistake was made by a draughtsman, but it does not aver who employed him, whether he was the agent'of one or both parties. If of only one, which one? In fact, Mr. Lin-ville who wrote the deed and made the mistake was employed by the defendants. This is a fatal error. Brooking v. Straat, 17 Mo. App. 296; Benn v. Pritchett, 163 Mo. 560; Bosley v. Bosley, 85 Mo. App. 424; Meredith v. Holmes, 114 Mo. App. 343. (3) There is no evidence on which to base and the court does not find the mistake was mutual. Mary asked Mr. Linville, an old man, to write the deed “in a hurry” and he made the mistake. He was her agent and his mistake was hers and she is asking the court to correct the result of her own carelessness. Miller v. Railroad, 162 Mo. 441; Meredith v. Holmes, 105 Mo. App. 352. The proof must be cogent and convincing. Bunse v. Agee, 47 Mo. 270 ; Able v. Lis. Co., 26 Mo. 56; Modrell v. Riddle, 82 Mo. 31; Curd v. Brown, 148 Mo. 82.

      D. A. Bouner and L. F. Gottey for defendants.
    (1) The mistake made in the deed was mutual between the grantors and the grantees, the grantors intending to convey property in block five and the grantees believing that they had conveyed to them the property in block five. And the evidence produced is clear and convincing that there was a mutual mistake in the description of the property conveyed. P. B. Linville’s testimony. Under such circumstances a court of equity will correct a mistake in such deed. 0 ’Day v. Meadows, 194 Mo. 614; Rice, Stix & Co. v. Sally, 176 Mo. 131; Hunter v. Patterson, 142 Mo. 310; Williams v. Brown, 195 Mo. 332. The description in a deed will he construed most strongly against the grantors. Cochran v. Railroad, 94 Mo. App. 469. The description in a deed should be so construed as to give effect to the.manifest intention of the parties. A construction which would cause a deed to perish because of a mistake or a palpable error of the scrivener should not be upheld, if ' the manifest intentions of the parties may be gathered by using a part of the calls and disregarding others. Preswell v. Headly, 141 Mo. 194. (2) The court erred in its finding that Dena Dougherty was entitled to dower in said estate and also erred in its finding that the present value of the dower in the property described in the petition was $467.25. The present value was ascertained according to the rule laid down in Laws 1893, entitled Dower, relating to computation of present value of life estates, section 1, page 167. (3) The mistake was mutual and neither of the parties, grantors nor grantees, having any knowledge of the mistake in the description of the property in said deed until just before the filing of the petition in this suit, the defendants are not guilty of laches in not bringing a suit to reform said deed. Dye v. Bowling, 82 Mo. App. 587. These facts and all the circumstances considered with the testimony of P. B. Linville seem to be conclusive evidence of a mutual mistake in said quitclaim deed. There is no evidence of undue influence, no evidence of fraud, covin or deception having been practiced on the grantors by the grantees or by any one for them as alleged in plaintiffs’ petition. The allegation that their conduct is collusive, oppressive and fraudulent is a mere allegation and will not suffice. Nagel v. Railroad, 167 Mo. 89; Smith v. Simms, 77 Mo. 274; Uoodson v. Groodson, 140 Mo. 218.
   GRAVES, J.

John Dougherty, a resident of Edina, Knox county, Missouri, departed this life in January, 1874. He owned at the date of his death lots 5, 8, 9 and 10 in block 5, in the original town, now city, of Edina. His heirs were Ellen Dougherty, widow, and four children, Bernard, Mary 0., Catherine, and John A. S. Dougherty. The' said John Dougherty left a will by which all this property was devised to the wife Ellen, for and during her natural life or widowhood, with discretionary power to sell any or all of said property for the support of herself and children. At her death or remarriage, the remainder was to go to the four children, in equal portions. The widow of John Dougherty died in 1884, but prior to her death had placed a deed of trust on all of her said property, except lot.^Ap^^lil Jkt&ote of $1,780.77, payable to one Lipti¿l0- gr^srf í&r phéf death and after the expiration of9njpeyipp:%th'S thereafter, this deed of trust was foreclosed, and the land purchased by James Dougherty, a brother of John Dougherty; who had previously acquired the Linville note, the consideration in the trustee ’s deed being $2,000. May 9,1898, three years after the trustee’s sale, James Dougherty by deed of quitclaim, for the expressed consideration of $5, conveyed the property to Mary C. Gangloff, formerly Mary C. Dougherty, and Catherine Dougherty.

At the December term of the Knox Circuit Court for the year 1900, Anthony Gangloff, husband of Mary C. Gangloff, formerly Mary C. Dougherty, procured judgment against John A. S. Dougherty in the sum of $917.81, debt, and $41.15, costs, for money due him personally from John A. S. Dougherty. In 1903 he caused execution to be issued on his judgment and levy to be made on all the property owned by the father, John Dougherty, viz: lots, 5, 8, 9 and 10 of block 5, as described hereinbefore. At the sheriff’s'sale under .such execution, Anthony purchased said property, the expressed consideration in the sheriff's deed being $100.

On January 14,1897, John A. S. Dougherty, joined therein by his wife, Dena, execüted a quitclaim deed to Mary C. Gangloff and Catherine Dougherty, conveying to them all his right, title and interest, in and to lots 5, 8, 9 and 10, in block 6, original town, now city, of Edina. It will be observed that the numbers of the lots are the same, but the block is 6 instead of-5, as in the description of the property owned by John Dougherty, deceased. This deed is one of the storm centers of the suit, in this appeal involved. At the execution of this deed, John A. S. Dougherty was living in Butte, Montana.

Later, John A. S. Dougherty returned with his family to Edina, Missouri, and after a period of about three years from the date of his return, and on May 25, 1903, he instituted his suit in the circuit court of Knox county against Mary C. Gangloff, Catherine Dougherty and Anthony R. Gangloff, in the first count of which he sought to have the deed of trust and the trustee’s deed, hereinabove mentioned, cancelled, as also the deed from James Dougherty to defendants Mary C. Gangloff and Catherine Dougherty, and he also sought to have the sheriff’s deed to Anthony R. Gangloff cancelled, and asked the court to decree that he owned an undivided one-fourth interest in the said property. By second count he prayed for partition of the property and that an accounting be had of the rents and profits. After the institution of this suit John A. S. Dougherty died, and the suit was revived in the name of Dena Dougherty, his widow, and Antonio Dougherty, a minor, by O. D. Jones, guardian ad litem. An amended petition was filed, in which the necessary changes were made to meet the conditions of things.

"To this petition, Mary C. Gangloff and Catherine Dougherty answered by denying that John A. S. Dougherty at his death owned, any interest in said property, and further pleaded in their answer the quitclaim deed from John A. S. Dougherty and wife Dena, to them, as above mentioned, and asked for the reformation of said deed so that it would read “block 5” instead of “block 6.” Some question is made as to the sufficiency of this answer upon this point, which will be noticed later.

Anthony R. Gangloff, by answer, denied that John A. S. Dougherty had any interest in the property at the time of his death, and averred that he acquired all of his interest at the sheriff’s sale, and by the sheriff’s deed, hereinabove described.

Reply was a general denial.

By its judgment, the court refused to reform said deed as to Dena Dougherty, and found that she was entitled to a dower in one-fourth of all the property, and that the value of the property was $5,500, and that her damages for deforcement of her dower since the death of her husband was $60, and that she was entitled to recover from the defendants the sum of $527.25, which included her dower and the $60 damages. The court also found and. adjudged the monthly rents and profits to be forty dollars per month. The court reformed this quitclaim deed as to the minor plaintiff, Antonio Dougherty, so as to make said deed of quitclaim from John A. S. Dougherty to Mary O. Gangloff and Catherine Dougherty to read “block 5” instead of “block 6.” The court also cancelled the deed of trust, and the trustee’s deed thereunder, as well as the quitclaim deed from James Dougherty to the said Mary C. Gangloff and Catherine Dougherty. No action was taken by the court as to the sheriff’s, deed, as the court in the judgment said the interest of John A. S. Dougherty had previously passed by the quitclaim deed. The petition of the infant son of John A. S. Dougherty, Antonio, was dismissed. In the trial it was admited that Bernard Daugherty had conveyed his interest to his sister Mary C. Gangloff and Catherine Dougherty. The $527.25 to Dena Dougherty was made a lien upon the land, the court having found that dower could not he set off in kind.

From this judgment, the minor, Antonio, appealed, as did also the defendants, so that we have cross appeals. Further portions of the pleadings, evidence and judgment will he noticed in the opinion, but this substantially states the case and the contentions.

I. The trial court committed no error in cancelling the deed of trust to Linville, executed by the widow of John Dougherty. Nor was there error in cancelling the trustee’s deed under said deed of trust and the quitclaim deed from James Dougherty, the purchaser at the trustee’s sale, to Mary C. Gangloff and Catherine Dougherty.

The power given to the widow by the will of John Dougherty was a power to sell, and not a power to mortgage or otherwise encumber the property. The entire context of the clause in the will granting the power will lend no aid to a contrary view. The general rule is, that a power to sell does not give life to a-mortgage or deed of trust executed under such power. In other words, a power to sell is not a power to mortgage or to convey by deed of trust. [Price v. Courtney, 87 Mo. 387; Garland v. Smith, 164 Mo. 1; 18 Am. and Eng. Ency. of Law (1 Ed.), 940, and cases cited.]

There are some cases where a contrary doctrine is expressed, the opinions resting upon the peculiar wording of the clause granting the power and the peculiar purpose of the grant, but there is nothing in this case which would even bring it within the doctrine of these cases. Thus it follows that the judgment of the trial court is so far correct.

II. We next reach that portion of the judgment of the trial court wherein the deed from John A. S. Dougherty and Dena Dougherty, his wife, to Mary G. Gangloff and Catherine Dougherty was reformed. ' By this judgment the deed was reformed as to Antonio. Dougherty, the infant child of John A. S. Dougherty, but not as to Dena Dougherty, the widow. From this judgment both sides appeal, the plaintiffs contending that there should be no reformation of the deed, and the defendants claiming that there should have been a reformation as to the widow as well as the heir. The question then is, should this deed have been reformed at all, and if so to what extent? Answer to the question will require a review of the evidence as to‘how the deed came to be made. All of the evidence upon this question in the abstract before us, is as follows :

“P. B. Linville said: I have resided in Edina about sixty years. I am acquainted with the Dougherty family. I knew John and all the children. I did business for the Dougherty family.
“Q. I will ask you to know whether or not Mrs. Gangloff and her husband and Kate ever furnished John Dougherty any money or not. A. Yes, sir; at least they told me so.
“Objected to for the reason it is so indefinite it would not elicit any facts in the issue in this case. It .is hearsay.
“By the court: All the court now wishes to hear is whether or not there was a mistake in that deed; the'consideration is not attacked.
Q. Do you remember of being called upon about the month of Juné or January, 1897, to write a deed? A. Yes, sir.
“Q. For the'interest of John Dougherty in this property as heir? A. The question was this: Mrs. Gangloff came to me and wanted three hundred dollars to send to her brother John.
“Objected to — not responsive — it is not stated in the pleadings and there is not an allegation to which ■it would be responsive and because John A. S. Dougherty is dead and it is simply putting words in her mouth.
“By the court: All I care for is, under the present condition of the pleadings, whether or not there is a mistake in that deed — the consideration in the deed is not questioned.
‘ ‘ The deed shown me is in my handwriting, dated January 14,1897. I wrote it at the suggestion of Mrs. Gang! off. She wanted to send $300.
‘ ‘ The last clause objected to. Objection overruled, to which plaintiff’s counsel excepted and saves exception.
“I wrote it at the suggestion of Mary Gangloff. I now see I made a mistake in writing that deed. It is my fault the deed is wrong, because I have a lot in the same block. Mr. Dougherty has no lots in block six. I live in block seven. How I came to make the mistake I am not able to tell. I intended to describe the property in block five, of the original town of Edina, all Ms property in that block, lots 5, 8, 9 and 10, but by mistake I wrote it in block six when it should have been five. It was a mistake of mine.
“By the court: That shows Mr. Dougherty made a mistake when he signed the deed.
“ Q. Who executed the deed ?
“By Mr. Jones: It shows for itself. A. John Dougherty, I suppose. I did not see him sign it.
“Q. This deed was then for this property — was sent to them signed and executed? A. Yes, sir. Three hundred dollars was got out of the bank the same day, my books show.
“Objected on grounds not responsive.
“By the court: Objection sustained — the consideration of the deed is not attacked.
‘ ‘Deed offered and read in evidence.
“I gave the deed to Mrs. Gangloff after I wrote it to send away by mail.
“I wrote it in a great hurry. She was in a great hurry to get it away.
“Quitclaim deed dated 14th January, 1897, John and Dena Dougherty of Butte City to Mary Gangloff and Kate Dougherty for the sum of one dollar ‘remise, release and forever quitclaim’ the lots described ‘in block 6’ original Edina, Knox county, Missouri. To have and to hold it. Signed and sealed by first parties. Acknowledged before a district judge of the State of Montana and being a judge having a common law jurisdiction. Seal. Filed for record in Knox county, March 4,1897.”

The above and the mere fact that the John Dougherty property was in block five is the evidence upon this branch of the case. Does such evidence authorize a reformation of the deed? "We think not.

There is no cogent and convincing testimony in this record showing a mutual mistake. Courts of equity will reform a deed where there is cogent and convincing proof of a mutual mistake, but such is not the record before us. A mutual mistake in a written instrument presupposes a prior or preceding agreement between the parties. To show the mutual mistake in the written instrument, the preceding agreement must ex necessitate be shown. There is no evidence of any agreement between the parties save and except the one expressed in the deed. Parties, when requested, and for a very nominal consideration, often make quitclaim deeds to property in which they claim no title or interest. There is in this record no evidence of any preceding agreement upon the part of John A. S. Dougherty to convey his interest in his father’s estate, which included the property in dispute, but not the property deeded. We might surmise that it was his purpose to convey his interest in his father’s estate, but surmises do not meet the full measure of the law, which requires the proof to be cogent and convincing. Nor' will it do to say that the mistake of the scrivener Lin-ville will suffice to show a mutual mistake. Where the" scrivener acts for both parties and makes the mistake, then proof of his mistake establishes the mutual mistake, for he was the agent of both parties. This record shows that Linville acted under the sole direction of one of the grantees, and in the absence of the gran'tor.His mistake was the mistake of the grantees, but not' the mistake of the grantor, for whom he in ho way acted, under the proof in this case. . The mistake is purely unilateral and one which courts of equity do not reform. [Grand Lodge A. O. U. W. v. Sater, 44 Mo. App. l. c. 453; Meredith v. Holmes, 105 Mo. App. l. c. 352; Brocking v. Straat, 17 Mo. App. l. c. 305; Benn v. Pritchett, 163 Mo. l. c. 572; Miller v. Railroad, 162 Md l. c. 440-441.]

In the first case above cited, Biggs, J., says: “But all decisions and text-books assert the principle that the- mistake must be mutual and not unilateral. [1-Story, Eq., sec. 151; Gwin v. Waggoner, 98 Mo. 315; Allen v. Carter, 8 Mo. App. 585.] It is also a well-settled rule that the evidence relied on to prove the mistake must be clear and convincing. [Downing v. McHugh, 3 Mo. App. 594; Allen v. Carter, supra; Tesson v. Ins. Co., 40 Mo. 33.] ”

In Meredith v. Holmes, 105 Mo. App. l. c. 352, Bland, P. J., expresses it thus: “So strong is the legal presumption that a written contract, unambiguous and complete in itself, contains all the terms of the agreement between the parties, that parol evidence will not be heard in an action on a contract to vary or contradict its terms. [Evans v. Mfg. Co., 118 Mo. 548; Tracy v. Iron Works, 104 Mo. 193; Black River Lumber Co. v. Warner, 93 Mo. 374; Bunce v. Beck, 43 Mo. 266.] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the -mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [ Judson v. Mullinax;, 145 Mo. 630; Parker v. Vanhoozer, 142 Mo. 621; Sweet v. Owens, 109 Mo. 1; Gaylord v. Insurance Co., 40 Mo. 13; Benn v. Pritchett, 163 Mo. 560.]”

Considering more particularly the mistake made by a scrivener acting under the directions of only one of the parties,- Rombauer, J., in the Brocking case, supra, uses this language: ■ “Plaintiffs’ counsel contends that the rule which requires proof that the mistake was mutual does not apply to a case where the mistake is that of a scrivener. This argument springs from a misconception of methods of proof. "Where it clearly appears that the scrivener acted by direction of both parties, he stands as agent of both parties to that extent, and satisfactory proof of his mistake is proof of the mutual mistake of the parties themselves. Where such facts were shown, proof of the scrivener’s mistake was held sufficient as direct proof of a mutual mistake, and not as dispensing with such proof. To that extent the rule in regard to the scrivener’s mistakes is logical and correct; beyond this it is unsupported alike by reason and authority. In the case at bar the scrivener received his directions from George Rinkel alone. The evidence fails to show that he was employed by any one else, or instructed by any one else. He and George Rinkel both testify that he did not draw the deed according to George Rinkel’s directions, and there the proof stops. It is true that from all the surrounding circumstances an inference may be drawn which in ordinary trial of facts might justify a finding on the theory of probabilities. We are clear, however, that this cannot be done where the reformation of an instrument is sought.”

And to- a like effect is the language of Marshall, J., in Benn v. Pritchett, wherein it is-said: “A mistake of a conveyancer will not constitute a mutual mistake as a ground for a reformation of the instrument, unless he acted for both parties. [Brooking v. Straat, 17 Mo. App. 296, l. c. 305.] The justice of the peace in this case acted for Geary alone. Mistake on one side, without fraud of some kind on the other side inducing the mistake, will not be sufficient to relieve the party making the mistake. [Norton v. Bohart, 105 Mo. 615.]”

We therefore hold that under the proof in this record, there should have been no reformation of this deed at all, and there was error in the judgment of the court in so far as the deed was reformed as against the minor plaintiff, Antonio Dougherty.

m. The answer of defendants Mary 0. Gangloff and Catherine Dougherty is fatally defective in failing to aver that the alleged mistake was a mutual mistake. The only mistake charged in the portion of the answer where they ask affirmative relief is that the scrivener made a mistake in drawing the deed. There was no averment that he was acting under the directions of both parties, a necessary averment to make his mistake the mutual mistake of the grantors and grantees.

In actions for reformations of written instruments for mistake, the pleadings must aver the mistake to be mutual, and the evidence thereof must be clear, cogent and convincing.

IV. The petition asked for the cancellation of the sheriff’s deed to defendant, Anthony Gangloff, described in our statement of facts. The evidence is meager upon this question. The trial court refused to pass upon the question, in this language: “In view of the fact that the title of the deceased had passed hy the quitclaim deed prior to its execution, that the court will take no action as to the sheriff’s deed mentioned in the pleadings. ’ ’ The meagerness of the evidence upon this part of the case may he owing to a remark of the trial judge when Linville gave his testimony. After Linville said that he made the mistake in writing the deed, the court said: ‘ ‘ That shows Mr. Dougherty made a mistake when he signed the deed.” In this remark the court was in error, hut it no douht had the effect of preventing counsel for plaintiffs from fully developing the facts as to the sheriff’s deed. The sheriff’s deed can in no wise affect the rights of the widow, and as the case will have to he reversed as to the infant, Antonio, the evidence can he fully introduced upon a retrial.

Complaint is urged that the dower interest as found hy the court is excessive. This cause was tried in 1904. The calculation is correct under sections 2 and 3 of Act of March 18,1903, the law in force at the time. This law, however, was repealed hy Act of April 8, 1905, under which the dower interest would not he so great hy some sixty-odd dollars.

From what has been said it follows that this judgment should he affirmed, so far as Dena Dougherty is concerned, and reversed and remanded in so far as it affects Antonio Dougherty, to he retried as to his interest, in accordance with the views herein expressed. It is so ordered.

All concur.