author: BROWN, C. PER CURIAM: GRAVES J.

text:
    LOU McFARLAND, Appellant, v. KATHERINE McFARLAND et al; SALINA McFARLAND, by GEORGE P. WRIGHT, Her Guardian Ad Litem, Appellant.
    Division One,
    April 7, 1919.
    1. DOWER: Limitations: Purpose of Statute. The purpose of Section 391, Revised Statutes 1909, declaring that “all actions for the recovery of dower in real estate, which shall not he commenced within ten years from the death of the husband, shall be forever barred,” was to limit the widow’s quarantine to ten years and-such other time as is necessary to perfect the judicial assignment of' her dower, and also to put an end to the uncertainty which hangs over every title in which a deed appears which does not contain a release of dower.
    2. -: Assignment: Suit. -Dower may be assigned by parol. The widow being entitled by common right, nothing is required but to ascertain her share, and that having been done and she having entered, the freehold vests in her without livery of seizin or writing, or decree of court. No judicial process is necessary to establish her right to dower, unless the right is withheld by the heir or those claiming under him in possession of the lands.
    3. -:-: Sharing in Rents: Cotenants: Suit to Recover Dower. Where the heirs acknowledged the widow’s right to dower and for eleven years she annually received one-third of the rents, through one of the heirs who acted for her and the others, she and thfey were in full possession all the time as cotenants, and she could not have maintained suit for dower, because she was already in possession. Such a suit she could not maintain until a disaffirmance of said agreement for the division of the rents and her exclusion from possession.
    4. -: -:-: Limitations: Section 391. Where the heirs have acknowledged the right of the widow to dower by annually for eleven years paying her one-third of the rents, which were collected for her and them by one of the heirs, and she and they were therefore cotenants in possession, she was not required by Section 391, Revised Statutes 1909, declaring that “all actions for the recovery of dower in real estate, which shall not be commenced within ten years from the death of the husband, shall be 'barred,’’ to begin her suit to recover dower until the parol assignment was disaffirmed and she was deforced of her right.
    5. -: Limitations: -Section 391: Estoppel. An acknowledgment rpf the widow’s right to dower in the land, the payment to her annually for eleven years of one-third the rent, and their joint posséssion through one of the heirs as agent for all, constituted a parol assignment -of dower to her, and estop the heirs from pleading Section 391, Revised Statutes 1909, as a bar to her action to recover dower, brought by her after they had breached the parol assignment and disseized her. The estoppel arises, not by reason of some fact agreed or assumed to be true, but as the legal effect of carrying the contract into execution.
    6. ESTOPPEL: Available Against Plea of Limitations. Estoppel by contract ■ and the conduct of the parties is available against a plea of the Statute.of Limitations. If the widow, by agreement with the heirs was acknowledged to have dowfer in land and in keeping therewith one-third the rents were paid to her and she was therefore in joint possession with them, they cannot take it from her, by claiming the statute has barred her suit to recover her dower, without returning to her the consideration she had surrendered therefor, which was her legal right to sue for an allotment of dower before the statutory limitation had expired.
    Appeal from Nodaway Circuit Court. — Hon. Charles H. Mayer, Judge.
    Beversed and remanded.

      Cook & Cummins for appellants.
    (1) The Statute of Limitations will not begin to run against the widow, and ,-in. favor of the heirs, until such time as they assume and assert an adverse and hostile possession against her. In other ‘ words, so long as the widow • and children, in unison and in harmony, occupy the premises, the law through public policy will not bar the rights of either. It favors and encourages such relations, and does not compel their destruction, by driving the parties into the' courts through fear of the Statute of Limitations. Chrisman v. Linderman, 202 Mo. 614. (2) The widow holding and enjoying the dower right, and the heirs of the husband holding and enjoying their rights as such, were tenants in common. R. S. 1909, sec. 2778; 14 Cyc. 961. (3) The possession of one tenant in common is the possession of all, and the statute does not begin to run in favor of one until he begins an open, hostile and adverse possession against the others and makes that claim known to them. 1 R. C. L. 742; Wood on Limitations, 621; Hynds v. Hynds, 253 Mo. 33.

      Shinabargar, Blagg & Ellison for respondents.
    (1) Sec. 391, R. S. 1909, bars the appellant widow’s action for the recovery of dower, (a) The opinion has been judicially expressed that this law was passed to prevent the further enforcement of the harsh doctrine announced in Johns v. Fenton, 88 Mo. 64, to the effect that no amount of adverse possession would bar an action for the recovery of dower, the widow in that case having commenced her action thirty-eight years after the death of her husband. Robinson v. Ware, 94 Mo. 688. (b) This being the reason for the enactment, it is clear the intention of the Legislature was to provide a Statute of Limitations applicable to dowér, which would not depend on adverse possession for its operation. (2) The plain language of the statute furnishes the most convincing proof that its operation is not dependent upon adverse possession, as between the widow and heirs or anyone else, (a) It absolutely and unequivocally fixes the time at which it shall begin to run at a day certain — the date of the death of the husband — which is the" time when the cause of action accrues, (b) It says all actions for dower shall be for•ever barred unless commenced within the time limited, (c) It is levelled at the widow, or her assignee, because it bars actions for the recovery of dower claimed or demanded, (not actions for the assignment of dower). The only one who would claim or demand dower or sue to recover it would be the person entitled to the dower. If an heir or creditor should proceed under Section 379, Revised Statutes 1909, to have dower set out, his action would not be for the recovery of dower, but fpr its assignment to the widow, (d) Section 391 is imbedded in Article 16 of Chapter 2, which defines dower and enumerates its incidents. Evidently it is intended to constitute an integral part of the law of dower and is. to be considered in connection with Sections 367 and 369, which prescribe the procedure by which a widow may sue for the recovery of her dower. Section 367 runs in the disjunctive and contemplates many instances in which a widow may sue for dower though she be in possession of the land in which it is claimed, or be receiving rents therefrom. Section 391 bars, in ten years from the death of the husband all rights of action conferred by Sections 367, 369, and the other sections of the article on dower, (e) Section 391 is like our general Statutes of Limitation barring personal actions (See secs. 1887 to 1915, R. S. 1909), which admittedly do not involve any question of adverse possession, and wholly unlike the limitation statutes in which adverse possession is a necessary element (See secs; 1879 to 1886 R. S. 1909). These expressly make possession an essential ingredient. (4) Section 391 has been noticed by the Supreme Court of this State in five cases, and in all of them has been held to impose an absolute limitation on an action for the recovery of dower. Robinson v. Ware, 94 Mo. 678; Harrison v. McReynolds, 183 Mo. 539; Kennedy v. Duncan, 224 Mo. 66i2-3; Jodd v. St. L., I. M. & S. Ry. Co., 259 Mo. 239. (5) If Section 391 runs against a widow in possession of the land in which dower is claimed, or one receiving rents therefrom, then the heirs would not be estopped to claim the protection of the statute because of their conduct in permitting the widow.to assume such rights, for such conduct would not be inconsistent with the running of the statute or with reliance upon it. 11 Am. & Eng. Ency. Law (2 Ed.), 422. (a) The widow’s ignorance of her rights and duties did not exempt her from the operation of the statute. 25 Cyc. 1212; 19 Am. & Eng. Ency. Law (2 Ed.), 213; Callan v. Callan, 175 Mo. 360; State ex rel. v. Yates, 231 Mo. 283; Johnson v. United Rys., 243 Mo. 295; Putnam County v. Johnson, 259 Mo. 83. (b) But the ignorance of the heirs and the widow’s equal opportunity to inform herself of her rights would make the doctrine of estoppel inapplicable to the heirs. 16 Cyc. 730’, 741; 11 Am. & Eng. Ency. Law (2 Ed.), 434; De Lashmutt v. Teetor, 261 Mo. 440; Keeney v. McVoy, 206 Mo. 57; Harrison v. McReynolds, 181 Mo. 548. (c) The payment of the rent by the heirs to the widow did not evidence an intention to waive the statute barring the widow’s action for assignment of dower, because she was equally entitled to such rent before dower was assigned. Sec. 257, R. S. 1909. (d) The recognition of the widow’s unassigned right of dower did not estop the heirs because she did in fact have that right, at the time. Sec. 345, R. S. 1909. (e) It was not the duty of the heirs to have dower assigned to the widow. Sec. 379, R. S. 1909; Fischer v. Siekmann, 125 Mo. 178; Moran v. Stewart, 246 Mo. 474. (6) The widow and heirs were not tenants in common, (a) The premise on which the appellant has based her whole theory of the case is that the widow and heirs were tenants in common. This is not the law in Missouri or most other' jurisdictions. 14 Cyc. 961; 10 Am. & Eng. Ency. Law (2 Ed.), 146; 38 Cyc. 3; 17 Am. & Eng. Ency. Law (2* Ed.), 651; Wigley v. Beauchamp, 51 Mo. 547; McClanahan v. Porter, 10 Mo. 751; In re Final Settlement of Tyler, 40 Mo. App. 383. (b) The prime essential of a tenancy in common is unity of possession. The widow has no joint right of possession in virtue of her dower, which, until assigned, is only a right or chose in action. 14 Cyc. 960; 10 Am. & Eng. Ency. Law (2 Ed.), 146; Waller v. Mardus, 29 Mo. 27; Carey v. West, 139 Mo. 177.
   BROWN, C.

Plaintiff, Lou McFarland, the widow of Seth McFarland, deceased, instituted this action in the Circuit Court of Nodaway County on February 9, 1916, against the respondents, children by a former wife and heirs at law of Seth McFarland, who died seized of an estate of inheritance in the lands in controversy May 15, 1904. The land embraced about two hundred acres in Nodaway County. The petition, after stating these facts, proceeds as follows,:

“Plaintiff further states that by reason of said marriage, and by .reason of the facts herein recited, upon the death of the said Seth McFarland, she became entitled to dower in the above described land and that dower has not been heretofore assigned her, nor has she at any time relinquished her rights to dower in the manner provided by law, nor has she received any equivalent therefor. Plaintiff says that ever since the death of the said Seth McFarland until the 24th day of July, 1915, she and all of the defendants, as the children of the said Seth McFarland, held and enjoyed said lands as tenants in common, apportioning among them-therein, plaintiff receiving from said rents the selves the rents, issues and profits thereof among themselves according to their respective interests therein, plaintiff receiving from said rents the value of her dower interest in the same; but that on the said 24th day of July, 1915, the defendants denied to plaintiff any further right or interest in said lands and now seek to convert plaintiff’s said dower interest to themselves and now deny plaintiff’s right therein, and seek to wrongfully deforce plaintiff of her dower right in said land and hav^ done so since the said 24th day of July, 1915, to plaintiff’s damage in the sum of three hundrd dollars.
“Plaintiff says that the monthly value of the lands ¿nd profits of her said dower estate is fifty dollars.
“Wherefore, plaintiff prays judgment for three hundred dollars damages for said deforcement, and fifty dollars per month for the monthly rents and profits of her said dower interest from the rendition of judgment, and for the admeasurement and assignment of her dower in' said lands, and for all other and proper relief.”

The defendants answered, pleading, among other things, the following.:

“Further answering these defendants allege that the right of the plaintiff to dower, if any, in the real estate of which their father, Seth McFarland, died seized of an estate of inheritance, is barred by limitation under Section 391, Revised Statutes 1909.”

The plaintiff replied by general denial and pleaded affirmatively as follows:

“For further reply, plaintiff says that at all times after the death of her said husband, in 1904, until the month of July 1915, she, as such widow, and the defendants, as the heirs of her said husband, continued in the possession of said lands, in common, the defendants at all times conceding and recognizing the dower rights of plaintiff, and each year, during the whole of said time, paid to her one-third of the rents of the lands, as for the yearly income of her said dower; and that they at no time denied plaintiff’s said right, nor held or claimed to hold said lands adversely to her, all as is set out in plaintiff’s petition. Plaintiff says that by reason of.the matters herein, and in her petition stated, her dower in said lands is not barred by Section 391, Revised Statutes 1909.
“For further reply, plaintiff says that because of the defendants’ conduct in recognizing and conceding plaintiff’s dower right during the whole period of limitation fixed in said section, as is stated herein and in her petition, the defendants are estopped from now asserting that her right of dower is barred by said Section 391.
“Further replying, plaintiff says that if said Section 391 by its terms bars plaintiff’s right of dower in ten years after the death of her husband, regardless of the fact that she has been in possession of the lands, with the heirs, and her dower right fully recognized, and with no adverse possession claimed against her, the said section is violative of the Constitution of the State of Missouri and is therefore void and of no effect.”

When the cause came on for trial Salena McFarland, of unsound mind, was made a defendant. George P. Wright, an attorney at the bar, was appointed by the court her guardian ad litem and filed an answer which is not set out in the record. The cause was submitted on an agreed statement of facts which, so far as it affects the matters at issue in this appeal, states that plaintiff is the widow of Seth McFarland and the defendants are his children by his wife who died in 1900. He was married to plaintiff in 1902 and died May 15, 1904, without having any children by her.

The land in which plaintiff seeks to have dower assigned was a part of a large tract of which one John McFarland died seized of an estate of inheritance in 1872, leaving his widow, the defendant Salena McFarland, and eight children, among whom were Seth McFarland and J. E.' McFarland, who afterward acquired the interest of the other children, subject to the dower interest in the entire tract of the defendant Salena who at the time of the trial was eighty-three years old. Seth and J. E. afterward partitioned the land between themselves, the former acquiring the entire title of the land in question, subject to the rights, if any, of their mother Salena. A small tract of the land was omitted from the deeds made in this partition, but it is admitted that the equitable title was in Seth at the time of his death, so that the omission is unimportant.

With respect' to the dower of Salena McFarland “the facts are that for a number of years after the death of her husband she lived upon said 314 acres of land and managed the same. Finally she discontinued her management of the farm and thenceforward the possession of said lands was turned over to the said Seth McFarland and J. E. McFarland, each assuming charge , of that part of said 314 acres which was deeded to him in said voluntary partition. From that time forward each paid the said Salena McFarland an annuity of $100 per year and each paid all the taxes' on the land occupied by him and kept up and constructed improvements thereon, without any contribution from the said Salena McFarland, it being the understanding that the payment of said annuity and taxes and the keeping up and construction of said improvements should be and it was accepted by the said Salena McFarland as the income from her dower interest in said lands. The said Salena McFarland has never relinquished her right of dower in any said lands or conveyed the same, and thére has been no possession of any of said lands on the part of any of the parties to this litigation, hostile or adverse to her claim of ,dower therein, and unless said claim is barred by Section 391, Revised Statutes 1909, in the same manner as the claim of dower on the part of plaintiff is asserted by the defendant to be barred, then the said Salena McFarland likewise has dower in said land.”

With respect to the dower of the plaintiff, the agreed statement is as follows:

“Immediately following the death of the said Seth McFarland the widow and children took possession of said lands in the sense that the children as heirs were all mutually recognized, and through E. H. McFarland, one of the defendants and one of the heirs of Seth McFarland, the land was rented for and in behalf of all in accordance with their respective rights as they believed them to be from year to year. It was known to all of them that the widow had a dower interest therein, which they understood to be a one-third interest for life, and during all the time from the death of the husband in 1904, down to the month of July, 1915, all of the heirs fully recognized this dower right of the widow, neither the widow nor any of the heirs knowing that there was a dower Statute of Limitations. They paid to her each and every year one third of the net proceeds of the rents of the land, and divided the other two-thirds among the children in equal shares. None of them lived upon or occupied the land at any time, but during all the time kept it rented as above stated. The heirs at no time prior to 1915 ever denied plaintiff’s dower right and never at any time held the land, or claimed to hold it, adversely to her rights as doweress.
“On July 24, 1915, the defendants, through their attorneys, notified plaintiff, in writing, that her- right of dower in said lands was barred by the Statute of Limitations, and from that date they have denied to her any interest in the lands and have claimed to hold it adversely to her, and have collected the rents for the year 1915, amounting to seven hundred and twenty-five dollars and have not paid to her any part of the same.
“Plaintiff filed this suit, praying for the assignment of dower, on the 9th day of February, 1916, more than ten years after the death of her husband. The lands remain unsold and unconveyed since the death of the husband, and there is no question involved because of the rights of any purchaser. The sole question is as between the widow and the heirs, is her right of dower barred by the Statutes of Limitations, under the above facts.”

Upon these facts the court held that both plaintiff and defendant Salena McFarland are barred by the provisions of Section 391, Revised Statutes 1909, by reason of the fact that no action for the recovery of dower wras commenced by the plaintiff within ten years from the death of her husband on May 15, 1904, and that no action for the recovery of dower was brought by the defendant Salena McFarland within ten years from the death of her husband in 1872, and so adjudged, and that they take nothing by reason thereof; and also judged the costs against the plaintiff.

From this judgment both the widows appealed.

I. This appeal presents the sole question whether .the plaintiff is barred from her action by the provisions of Section 391, Revised Statutes 1909. While the discussion of that question will necessarily cast j-g^ ^011 -f^g rights of the appellant Salena McFarland, the condition of the record requires that the plaintiff’s appeal be first disposed of. To aid us the respondents have favored us with a brief so lucid in argument and rich in authority as to greatly lighten our labor.

The statute which we must construe in its application to plaintiff’s suit provides: “All actions for the recovery of dower in real estate, which shall not he commenced within ten years from the death of the husband, through or under whom such dower is claimed or demanded, shall be forever barred.”

This special Statute of Limitations was enacted in 1887 in the following form:

‘ ‘ Section 1. All actions for the recovery of dower in real estate, which shall not he commenced within ten years from and after this act takes effect, or within two years after the death of the death of the husband, through or under whom such dower is claimed or demanded, shall, he- forever barred: provided, however, that if any person entitled to bring an action for the recovery of dower at the time this act takes effect he under -legal disability to bring such action, such person may bring such action after the time herein limited and within three years after such disability is removed; provided, further, that the limitation in this act specified shall not he deemed to apply in any case where the widow is in possession of, and enjoying the mansion house of her husband, as specified in Section 2'205, Revised Statutes of the State of Missouri of 1879, until she shall have been evicted therefrom.”

In 1889, it was amended by striking out both provisos and the words “within two years from and after this act takes effect or,” and reenacting it in the form in which we first quoted it. Much is said by the respondent in argument about the motive of the Legislature in making this change and its influence upon the construction of what is left. We do not think it necessary to follow the line of this reasoning, for the motive is evident in the result. It exhibits the intention to limit the quarantine of the widow to ten years and such futher time as is necessary to perfect the judicial assignment of her dower, and also to put an end to the uncertainty which hangs over every.title in which a deed appears which does not contain a release of dower. The statute should, no doubt, be reasonably construed for the correction of the evil at which it was evidently aimed, and this construction, including not only its purpose for the future but all the conditions which is superseded, as well as the words in which it is now expressed, manifests the intention of the Legislature. 'All parties to this contest agree to its meaning as it now stands', but disagree as to its application to the facts of this case. The appellant says that it is unthinkable that the Legislature intended to impose upon the widow the duty to sue for that which had already been surrendered to her and of which she was already in the full enjoyment. This leads us to inquire whether or not, during the ten years which succeeded the death of her husband, she was in the possession and enjoyment of her dower.

We said in Robinson v. Ware, 94 Mo. l. c. 683: “It is sometimes said that an unassigned dower is a chose in action, but upon the death of the husband, the inchoate interest becomes consummated, and her right to demand and enter upon the enjoyment of that interest commences. [1 Scrib. on Dower, 618.] Call it what we may, it is an interest in real estate. ’ ’ When plaintiff’s husband died her interest, theretofore inchoate, became a right to demand the thing itself. If it was not givn her she had the right to sue for its delivery into her possession. If it was delivered it is unnecessary to say that no right of action existed, for the end of the law was in her hands. It was not paper to which she was entitled, hut a real thing, that part of the land itself or its product which represented the interest with which the law endowed her.

“Dower may he assigned by parol. The widow being entitled by common right, nothing is required but to ascertain her share; and when that is accomplished by the assignment, and she has entered, the freehold vests in her ' without livery of seisin or writing. And it is true, not only when the dower is assigned in the manner prescribed by statute, but also where a different mode of assignment is adopted by agreement; as where a rent issuing out of the lands, or an undivided third part is allotted to the- widow.” [2 Scribner on Dower (2 Ed.), 73.] The same is the doctrine of this court. [Johns v. Fenton, 88 Mo. 64, l. c. 68.] In that case the cause was remanded for the purpose of trying the question whether dower had been assigned by parol.

Our statute of ddwer carries plainly written upon its face the theory that no judicial process is necessary to establish the rights of the widow as doweress, unless those rights are withheld by the heir of those claiming under him in possession of the lands. The whole statutory structure rests upon the presumption that the parties in interest may and will voluntarily adjust their rights in that relation without the intervention of the courts. It authorizes suit to be instituted under certain conditions which imply failure to adjust the matter fairly by voluntary action. The first of these is that she be deforced of her right. This means in the colloquial as well as legal sense the wrongful withholding. The next condition precedent is that she cannot have it without suit. This would seem to require that she should first use some effort to obtain her right without judicial assistance. The next condition is that the dower has been unfairly assigned to her. This is intended to authorize her to reject any proposition of the heir which she deems unfair. The next is that it has not been assigned within two years from the death of her husband. This is evidently to constrain her to wait two years for the bringing of suit for the heir to move. None of the conditions except the first ever existed in this case. Her dower was promptly and lawfully assigned to her and she was in full possession of it during a period of eleven years after the death of her husband, receiving one-third of the rents and profits of the premises each year, through one of the heirs who acted as her agent as well as the agent of all. The possession was the possession of all, as tenants in common, from the time the arrangement was made until after the expiration of ten years from the death of her husband, when she was deforced and promptly brought this suit. As we said in Investment Company v. Curry, 264 Mo. 483, 1. c. 499, when. they refused to attorn to her further, the' relation of tenants in common ceased and the relation of tenant in dower unassigned revived. There was not a moment from the death of her husband until she received the letter of July 24, 1915, in which the defendants notified her that they would recognize her right no longer, that an action under the Dower Statute would lie. During the entire eleven years she was in possession, receiving everything to which she was entitled as her dower under the valid assignment which they now repudiate.

Investment Company v. Curry, supra, was decided by this court on the theory we have stated. In that case there had been no attempt to assign the widow’s dower, or to make any adjustment between her and the heirs, or in any way to segregate or identify her interest. The rent of the entire property, which was insufficient in amount, was turned over to her by the husband’s administrator for six years after his death, after which it was held adversely to her, the entire rent being paid to the heirs for a period of fifteen years before the bringing of the suit. We held that when the rent was withheld from the widow by the heirs, the tenancy in common, which under our statute always results from the joint possession of two or more owners under distinct titles, ceased, the widow’s estate reverted to its original status, which we have described in Eobinson v. Ware, supra, as a dower interest in the land against which the special statute ran. The pleader who drew this peition evidently had the Curry case, which had then just been published, before him, and drew it in exact accordance with the theory of that case.

Having held that the parol agreement between the plaintiff and defendant heirs set out in the agreed statement constituted a valid assignment of her dower, it follows that no right of action accrued to her under the terms of Section 372 until the disaffirmance of said agreement and the exclusion of the plaintiff from her joint possession thereunder in 1915. We think that it also logically follows that the special limitation of ten years from the death of the husband contained in Section 391 does not apply. We cannot charge the Legislature with the absurd intention to bar causes of action which do not accrue until after the period of limitation has expired. Section 391, it will be observed, purports to bar all actions for the recovery of dower whether they be brought under the dower statute, the statute relating to partition, which expressly authorizes them, or in ejectment. Its terms include alike all classes of actions for the recovery of land held by that title, which would hang upon a slender, thread were it interpreted literally, without regard to its purpose; a thread which might be cut or broken by any disseizor.

In Chrisman v. Linderman, 202 Mo. 1. c. 614, this court, after quoting from Coke upon Littleton with approval that “a maxim is a proposition to be of all men confessed and granted without proof, argument, or discourse,” referred approvingly to certain legal maxims on the subject of dower as follows: “The law favors dower; it is a reward of chastity, therefore it is to be preserved.” [Coke, Litt. 31a.] Again: “In doubt the response is in favor of dower, liberty, innocence, of the possessor, of the debtor and of the defendant.” [Brown Law Die. Appendix — In clubio pro dote, etc.] Again: “Law favoreth life, liberty, dower.” [14 Bae. 345.] Again: ■“'Where there is marriage, there is dower.” [Bract. 92.] And the converse; “No marriage, no dower.” [4 Barb. (N. Y.) 194.] We will not presume without a clearer expression of that purpose, that the Legislature, in Section 391, intended to violate these time-honored sentiments by providing that the widow who is disseized of the dower which has been assigned to her shall have no remedy for its recovery.

II. We also think the heirs are estopped by the contract under which they placed and continued the plaintiff in joint possession with themselves of the *anci right of her dower during a period of eleven years and their conduct in then dis-seizing her, from pleading the special Statute of Limitation to this action. We have already held that this agreement and the conduct of the parties under it constitute an assignment of her dower and we do not think they may now after disseizing her, plead this statute in bar of her right to recover it. We need not stop to inquire whether she has another remedy in ejectment or partition. She has selected the remedy which the statute gives her for the deforcement of her dower. They have repudiated the contract under which she stood seized and could only be deforced by its breach. Can they now interpose a defense which can only exist as a consequence of her own faithful compliance with the agreement and can only become available to them by their repudiation of its terms? In considering this question it is helpful to bear in mind the fact that estoppel in pais stands simply on a rule of law which forcloses one from denying his own expressed or implied admission which has in good faith and in pursuance of its purpose been accepted and acted upon by another. This admission may consist of the misrepresentation óf a fact by which the other is induced to act to his detriment or it may arise out of contract by which one is estopped from denying that which he has expressly or by implication agreed to be true. A 'familiar incident of estoppel by contract is found in the rule that the tenant is estopped from denying the title of his landlord. Estoppel by contract is the title under which the present incident classifies itself. This class of estoppels, as is. said by Bigelow (Bigelow on Estoppel, 6 Ed. 496), “being founded upon contract, it can seldom be an answer to the alleged estoppel, unlike the case of estoppel by conduct, that the party supposed to be estopped acted in ignorance of the facts and under mistake.” In this case the estoppel arises, not by reason of some fact agreed or assumed to be true, but as the legal effect of carrying the contract into execution (Id. 547). It is upon this principle that the estoppel of the tenant to which we have already referred does not end with the expiration of the contract of lease, but continues until the actual surrender of the possession.

In this case, as we have seen, no action would lie by the plaintiff to recover her dower while the contract by which she was receiving it to her satisfaction was in existence. A case of estoppel by contract and the conduct of the parties thereon is presented in its simplest form. The plaintiff had a cause of action for her dower. By this arrangement she received in possession the thing itself. The defendants could not take it from her without returning the consideration she had surrendered therefor, that is to say, the right to sue. This is accomplished by estoppel. This same question was determined in Dry Goods Co. v. Goss, 65 Mo. App. 55. In that case the defendants had agreed to settle the claim in connection with another which it' claimed to hold against the plaintiff as a counterclaim, when it should be liquidated and the title of defendants thereto ascertained. To wait for this settlement the plaintiff postponed bringing her suit until after the period of limitation had expired. No fraud or misrepresentation entered into the case. It was held that defendants were estopped from pleading the Statute of Limitations. This case was afterward approved and followed in Railway Company v. Commission Company, 71 Mo. App. 299, 304. The doctrine of estoppel by contract and the conduct of the parties thereunder has found frequent application against the plea of the Statutes of Limitation and in that respect the "statute in question is no different from all others. There is nothing in its terms which shows the intention, to permit its use as an accomplice to hold the victim while the robber does his work.

III. The answer of Selena .McFarland is not in the record. It is admitted that her right of dower has always been recognized since the death of her husband in 1872 and that she has received an “annuity” of $200 per year from his heirs, $100 of which kas been paid by Seth' McFarland and, since his death, by his heirs; that “the understanding that the payment of said annuity and taxes and the keeping up and construction of said improvements, should be and it was accepted by the said Salena McFarland as the income from her dower interest in said land.” There is nothing in the record to indicate whether or not the heirs ever denied their liability to pay this annuity, or to indicate whether Salena, through her guardian ad litem, is now claiming land or money. We cannot therefore safely dispose of her rights except in so far as they come within the principles already stated.

The judgment of the circuit court is reversed and the cause remanded for further proceedings in accordance with the foregoing opinion.

Bailey, C., concurs in result.

PER CURIAM:

The foregoing opinion by Brown,

C., is adopted as the opinion of the court.

All of the judges concur; Graves, J., in separate opinion.

GRAVES J.

(concurring.) — My views of this case can be shortly expressed. To my mind Section 391, Revised Statutes 1909, is an absolute bar to an action to recover dower, where such action is brought, for the first time, more than.ten years after the death of the husband. This is the plain language of the law. But this construction of the statute does not necessarily bar the present action. The facts in this case show that the action is not so much an action to have dower assigned (by agreement of parties), but from which dower right the doweress has been but recently deforced. The dower can be assigned as well by agreement as by actual court action, just as partition of real estate can be had by agreement as well as by court action. The statute, supra, refers to an action for the original assignment or ascertainment of dower, and has no reference to a suit to enforce a dower right already agreed upon and assigned, but from which there was thereafter a deforcement, as in this case. Here the dowers involved were in equity and good conscience, and at law, as successfully assigned as if done by court action. This was done within the. ten years allowed by the statute, supra. Afterward the parties are deforced of this assigned (assignment made by agreement of parties) dower, and this action is broad enough to reinstate them to the rights of which they have been deforced. I further agree that the acts of the defendants are such as to estop them from maintaining that the statute (Sec. 391, R. S. 1909) applies. For these reasons, I concur in the result reached by our learned commissioner.


source: Caselaw Access Project

author: BOND, C. J.

license: Public Domain

text:
    FANNIE DANCIGER, PARK PLAZA REALTY COMPANY et al. v. JENNIE STONE and ERNEST S. BENNETT, Appellants.
    Division One,
    April 7, 1919.
    1. CONVEYANCE: Deed by Husband and Wife of Undivided Half: Cotenants in Whole. Where the.wife was the owner of an undivided half interest in land, by inheritance, and her husband was the owner of the other undivided half, by purchase, a joint deed made by them in 1856 by which they conveyed “the undivided one-half” of the tract, the wife being under common law disability and the husband under no disability, must be held to have conveyed the husband’s half interest, unless the instrument itself shows the performance of every act on her part necessary to convey her estate, or unless it is shown by evidence aMuncle that it was the purpose, object and intent of. the makers to convey only her undivided half interest.
    2. -: -: Intention Shown by Deposition of Husband. That the purpose, object and intent of the husband and wife by a joint deed conveying an undivided half interest in land, in which each owned an undivided half interest, was to convey the wife’s interest, cannot be shown by a deposition of the husband made after the wife’s death. The wife being a party to the contract and being dead, such testimony is not competent under Section 6354, Revised Statutes 1909.
    3. LIMITATIONS: Land Subject to Curtesy. The Statute of Limitations does not begin to run against the wife’s heirs or, their grantees until the death of the husband who had curtesy in her lands, or against his grantees, even though she had been dead fifty years or more at the time of his death. Until his death and his lifetime right to possession was thereby terminated, the remaindermen or reversioners could not maintain a possessory action against him or his grantees.
    Appeal from Jackson Circuit Court. — Hon. O. A. Lucas, Judge.
    Reversed and remanded.

      Strother & Campbell for appellants.
    (1) For construction of deed see Peter v. Byrne, 175 Mo. 243, 249; Dooley v. Greening, 210 Mo. 343; Linville v. Green, 165 Mo. 397; Hedrick v. Musgrove, 183 Mo. 300. (2) Parol evidence was not admissible. Weissenfels v. Cable, 208 Mo. 534; Johnson Co. v. Wood, 84 Mo. 515; Wolfe v. Dwyer, 95 Mo. 545; Rogers v. Raney, 137 Mo. 598. (3) Andrew J. Stone was not a competent witness. Herndon v. Yates, 194 S. W. 48; Leavea v. Railways Co., 266 Mo. 151; Eaton v. Cates, 175 S. W. 953; Lieber v. Lieber, 239 Mo. 1; Smith v. Smith, 201 Mo. 546; Bishop v. Investment Co., 229 Mo. 721; Patton v. Fox, 169 Mo. 107; Curd v. Brown, 148 Mo. 95; Miller v. Slupsky, 158 Mo. 646; Johnston v. Johnston, 173 Mo. 120; Lins v. Lenhardt, 127 Mo. 290; Powell v. Sherwood, 242 Mo. 540; Allen v. Morris, 244 Mo. 36(2; Dunlap v. Griffith, 146 Mo. 294. (4) There was no adverse possession. Herndon v. Yates, 194 S. W. 48; Armor v. Frey, 253 Mo. 474; Coulson v. LaPlant, 196 S. W. 1147; Hall v. French, 165 Mo. 442; Bradley v. Goff, 243 Mo. 95; Hauser v. Murray, 256 Mo. 58.

      Harry L. Jacobs, M. L. Friedman, Bingolsky & Friedman and I. J. Bingolsky for respondents.
    (1) Parol evidence is admissible to explain terms of deed where same is defective on account of latent ambiguity. Hardy v. Mathews, 38 Mo. 121; Blumenthal v. Blumenthal, 251 Mo. 704; Mudd v. Dillon, 166 Mo. 110; Hubbard v. Whitehead, 221 Mo. 672; Johnson Co. v: Wood, 84 Mo. 515; Hauser v. Murray, 165 S. W. 376. (2) A life tenant and tenant in common can obtain title by adverse possession. Chouteau v. Riddle, 110 Mo. 366; Meddis v. Kenney, 176 Mo. 200; Null v. Howell, 111 Mo. 273; Acord v. Beaty, 148 S. W. 901; DeHatre v. Edmonds, 200 Mo. 246; Watson v. Payne, 143 Mo. App. 721; American Colonization Society v. Soulsay, L. R. A. 1917, 943; Golden v. Tyer, 180 Mo. 202; Stricklin v. Moore, 151 S. W. (Ark.) 1009. (3) Andrew J. Stone was a competent witness to testify to all facts occurring at the time the deed in 1856 was made, except to contracts made with his wife, conversations with his wife • and intentions of his wife in making the deed. He surely was competent to testify to facts which occurred after the death of his wife. Kille v. Gooch, 184 S. W. 1158; Ray v. Westfall, 183 S. W. 629; Griffin v. Nicholas, 224 Mo. 275; Stanton v. Ryan, 41 Mo. 514; Freeland v. Williamson, 220 Mo. 231; Weiermueller v. Scullin, 203 Mo. 473; Hoyt v. Davis & Herron, 30 Mo. App. 313; Spence v. Spence, 238 Mo. 77; Golden v. Tyer, 180 Mo. 196; Wagner v. Bender, 187 S. W. 1157; Bajohr v. Bajohr, 184 S. W. 76; Graham v. Wilson, 168 Mo. App. 188; Griffin v. Nicholas, 224 Mo. 275; Heynbrock v. Hormann, 164 S. W. 547; Martin v. Bonsack, 61 Mo. 566; Dnnlap v. Griffith, 146 Mo. 294; Weissenfels v. Cable, 208 Mo. 534; Carter v. Foster, 145 Mo. 392; Warne v. Sorge, 167 S. W. 969; Chambers v. Chambers, 227 Mo. 282.
   BOND, C. J.

Suit for an undivided one-half of a certain fifty-six and one-half acres of land in Jackson County, Missouri.

In 1849 one Archibald Rice conveyed by warranty deed to each of his two daughters, Manerva R. Rice and Mary Ann Franklin, an undivided one-half interest in'certain land in Jackson County, including the fifty-six and one-half acres in dispute. Manerva Rice later became the wife of Andrew J. Stone, who purchased the half interest of Mary Ann Franklin (afterwards Mary Ann Ish) , in all the land deeded to her by her father, so that in 1853 Manerva Stone and her husband Andrew J. Stone each owned, in their own right, an undivided one-half interest in the fifty-six and one-half acres in question.

On April 14, 1856, Andrew J. Stone and his wife, Manerva Stone, sold certain lands containing three hundred and forty-nine and one-half acres to William S. Stone, including an undivided one-half interest in the said fifty-six and one-half acres, describing the latter parcel to-wit:

“Also the undivided one-half of the south end of the east one-half of the northeast quarter of Section 2. Township 48, in Range 33, containing fifty-six acres and a half, the one-half of which hereby sold is 28% acres, and containing in the aggregate hereby sold and conveyed, 349% acres more or less, and being the same land deeded by Archibald Rice and wife to Mary Ann Kranklin (now Mary Ann Ish, the wife of John H. Ish) and Manerva R. Rice (now Manerva R. Stone, wife of the said Andrew J. Stone and one of the grantees herein) on the 22 day of March, 1849; and the undivided half of said land was deeded by John H. Ish and wife aforesaid to said Andrew J. Stone on the 17 day of May, 1853, both of which deeds are now of record in the Eecorder ’s office of Jackson County and State of Missouri, reference to said deeds being hereby had.”

The controversy in this case grew out of the construction to be placed on the above deed, the plaintiffs on the one hand claiming it conveyed the half interest of Manerva Stone, while the defendants insist it conveyed the half interest of the husband, Andrew J. Stone.

Manerva Stone died in the year 1857, leaving four children, Juilet, Sallie, William and Jacob.- William Stone died in 1895, leaving as his only heir his widow, Jennie Stone, one of the defendants herein. Jacob Stone died in 1888. His estate was not administered'until 1905, when letters testamentary were granted and in the course of administration the administrator sold Jacob Stone’s alleged one-quarter interest in an undivided one-half of the fifty-six and one-half acres in dispute to defendant Bennett for $75, said Bennett acting as attorney for Frank H. Cattrell, the real purchaser.

The other two children of Manerva Stone, Juliet and Sallie, each quit-claimed their interests, if any, in the disputed tract to the plaintiff, the Park Plaza Eealty Company.

It also appears of record that on January 17, 1867, Andrew J. Stone and his second wife, Julia, conveyed to William S. Stone, an undivided “one-half of the following tracts or parcels of land,” among which was the disputed parcel of “56% acres off the,south end of the east half of the northeast quarter of Section 2, Township 48, Eange 33.” William S. Stone took possession of the land and he and his grantees have continued in actual possession thereof until this controversy arose.

In the first instance three suits were instituted; one by the Kansas Western Co-Operative Company against Jennie Stone and others; another a partition suit by Jennie Stone, and the third by Fannie Danciger, who acquired title from the Kansas Western Co-Operative Company, against Jennie Stone, Ernest Bennett and others, all of which were, by consent, consolidated and tried as one, the Park Plaza Realty Company being substituted as plaintiff in two of the suits and substituted as defendant in the partition suit.

At the trial plaintiff introduced in evidence an affidavit of Andrew J. Stone, which was read, attached to and made a part of his deposition, a pertinent clause to the dispute in hand being as follows:

“That ... on which date (April 14, 1856) affiant and his wife sold an undivided one-half interest in said land to affiant’s brother, William S. Stone, (said one-half interest being the one-half interest belonging to said affiant’s wife at the time of her marriage).”

A decree was entered in favor of the substituted plaintiff, the Park Plaza Realty Company, in which the court found that is was the intention of both of the grantors by their deeds, to convey the undivided one-half interest in the fifty-six and one-half acres in controversy owned by Manerva R. Stone, individually, and not the intention of the grantors to ■ convey, or of the grantee to accept, the undivided half interest in said land owned by the grantor, Andrew J. Stone, individually. The court further found in favor of the Park Plaza Realty Company as substituted defendant in the partition suit wherein Jennie Stone was plaintiff, and dismissed her petition. The court also found that the Park Plaza Realty Company and its predecessors and those through whom it deraigned title had, from April 14, 1856, been in “open, notorious, visible, actual, continuous, adverse possession” of the land in controversy, and that said Park Plaza Realty Company “is the owner in fee simple, and is now in possession of said above described land,” and that none of the defendants, naming them, “have any interest in or right of title to said real estate described heretofore herein or any part of same. ”

From judgment entered in accordance with this decree, Jennie Stone and Ernest Bennett appealed.

I. It may be conceded {hat the terms of the deed do not render it absolutely certain whether it was the intention of the grantors therein to convey the undivided half interest of the wife or the undivided half interest which the husband acquired by purchase from her sister in the fifty-six and one-half acres in dispute, since the operative words of the deed do not specify, in express terms, which of the two undivided half interests were intended to be conveyed. The deed was made by the two co-owners in the form of a warranty and the grantee therein was the brother of the husband. At the time of its execution (1856) the wife was under common law disability. The husband was under no disability. In such circumstances, with the view of protecting her rights, the law requires that the instrument should show the “performance of every act on her part necessary to convey her estate.” [Peter v. Byrne, 175 Mo. 233; Dooley v. Greening, 201 Mo. 343; Linville v. Greer, 165 Mo. l. c. 397.] Hence there was no presumption afforded by the. language of the deed that it was intended by the wife’s joinder therein to convey her undivided one-half interest in the land in dispute, rather than the undivided half interest in the same which her husband then owned and had acquired (as recited in the deed) from her sister. IJnléss, therefore, the respondents have shown in the record by evidence aliunde that it was the purpose and object .and intent of the makers'of the. deed to convey thereby only the undivided half interest belonging to the wife, or that by some other method title was vested in those under whom respondents claim, defendants should have had a decree in the court below.

The respondents endeavored to show this in two ways: first by the deposition of the husband, taken after the death of his wife and the death of their grantee, who stated, in substance, that it was the intention of himself and wife to convey only her undivided half interest by the terms of the deed made by them; second, that respondents became vested with the title to the land under the Statute of Limitations of ten and thirty years.

Taking these in the order presented, the testimony of the husband in the form of a deposition given in 1911, forty-four years after the death of the wife, as the e;®ecf °f their joint contract in making the deed, was clearly inadmissible under the statute. [R. S. 1909, sec. 6'354.] The pertinent parts of that statute are, to-wit: “Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, ’ ’• etc.

In construing* this statute upon an issue presented by claimants to land under title emanating from the husband, against other parties claiming through the wife, on the theory that the husband, was the trustee of a resulting trust in her favor, Faris, J., said: “Is Lutes, under such circumstances, a competent witness by whom to show any fact which goes to dispute the validity of the title conveyed to his wife? We think not and we think the cases, as well as the statute, so hold, in cases like the present in no doubtful terms.’ [Herndon v. Yates, 194 S. W. l. c. 48.] To the same effect: Smith v. Smith, 201 Mo. l. c. 546; Patton v. Fox, 169 Mo. l. c. 107; Johnston v. Johnston, 173 Mo. 121; Lins v. Lenhardt, 127 Mo. l. c. 290; Miller v. Slupsky, 158 Mo. l. c. 646.

Our conclusion is that the testimony of the husband was not competent in the circumstances shown in this record, to prove that the deed executed by him and his wife was intended only to convey her and not his undivided half interest in the land in dispute. Defendants offered no other testimony hearing on the Intent of the parties, so that all that is left them in this case is their claim of title under the Statute of Limitations.

II. This being an action to try title to the land in question between the heirs of the wife and those representing them, and defendants who claim under the grantee in the joint deed of the husband and wife, upon the theory that said deed carried only the wife’s undivided half interest in the fifty-six and one-half acres, and the record showing beyond dispute that the husband died in 1912, only a few years before the institution of this action, and was entitled to estate for life by the curtesy, in the land.in question, it is clear that; the parties who obtained that title from him were enitled to possession of the premises until his death, and that prior to that time no Statute of Limitations ran against the remaindermen. Cases exactly in point are: Coulson v. La Plant, 196 S. W. l. c. 1147, par. 4, 5, and 6, where Graves, J., speaking for Division One of this court, said, in referring to claims of remaindermen or reversioners: “They would have no right to possession until the death of the life tenant. The grantee of the widow could defeat any possessory action which they brought showing the life estate. That they had no possessory right of action during the life of the tenant has long since been determined,” citing and quoting the case law. To the same effect: Armor v. Frey, 253 Mo. l. c. 474; Hall v. French, 105 Mo. l. c. 442; Bradley v. Goff, 243 Mo. 95; Plauser v. Murray, 256. Mo. l. c. 87.

It follows that the judgment in this ease, quieting the title in the parties who claimed under deeds from the grantee in the joint deed of the husband and wife, was erroneous. It is, therefore, reversed and the cause remanded for further proceedings not inconsistent with this opinion.

All concur.


author: WILLIAMS, J. BOND, C. J. GRAVES, J.

text:
    THE STATE ex rel. AMERICAN MANUFACTURING COMPANY v. EDMOND KOELN, Collector of the Revenue, Appellant.
    In Banc,
    April 7, 1919.
    1. STATUTORY CONSTRUCTION: Absurd Law. The presumption is that the General Assembly did not intend to enact an absurd law, incapable of being enforced.
    2. INCOME TAX ACT: Substitution of Word Collector for Assessor. ' Section 32 of the Income Tax Act of 1917, which declares that any person who shall have paid a tax assessed against his real or personal property “during the year shall be permitted to exhibit a receipt thereof to the assessor” and shall have credit to the full amount paid to the State upon the income tax assessed against him, by the use of the word “assessor” meant “collector.” The court will correct such verbal inaccuracy to read “collector,” for otherwise the section would be absurd, contradictory of the other sections of the act and of the general statutes, and incapable of being enforced.
    3. -: Credit: Taxes Paid During Year. The tax receipts which the taxpayer is permitted by Section 32 of the Income Tax Act of 1917 to exhibit to the collector, are the receipts for property taxes becoming due and payable during the year in which the income tax for which he is to receive credit becomes due and payable.
    4. -:-: School Taxes. The taxpayer in paying his income tax is entitled under- the Act of 1917 to deduct only his property taxes paid “to the State.” He is not entitled to credit for the School taxes paid by him.
    5. -: -: -: Double Taxation. A tax levied and collected for a school district is an entirely different burden from the tax levied and collected for State purposes, even though a part of the State taxes so collected is in fact afterwards distributed by the State to school districts to be used in helping maintain the public school system. Consequently an income tax levied for State purposes, under a statute which authorizes income taxes to*!be reduced only by the property taxes paid “to the State,” does not amount to double taxation for school purposes.
    6. -:--: -¡ — : -: Public Purpose. The fact that school taxes are levied for a public purpose, as are State and all other taxes, and that under the Constitution no taxes can be levied except for public purposes, does not authorize the court to expand the words in the Income Tax Act, which authorizes a reduction of the income tax by the amount of property taxes paid “to the State,’’ to include property taxes paid to a school district.

      Beld, by GRAVES, J., concurring, that the Income Tax Act of 1917 is awkwardly and loosely drawn, and future legislation on the subject should have such clearness of expression as t will remove all legal questions. except the constitutional question, which as the act is now drawn is one of grave doubt.
    Appeal from St. Louis City Circuit Court. — Hon. Benjamin J. Klene, Judge.
    EEVERSED AND REMANDED.

      Charles H. Danes and H. A. Hamilton for appellant.
    (1) The “tax” which may he deducted from the income tax assessment as provided for in Section 32 is the “tax assessed upon his real or personal property paid to the State,” and this expression is equivalent to the expression of “State tax on property” as provided for in Sec. 8, Art. 10, Mo. Constitution. (2) School taxes are treated as a separate fund and are classified with county, city and town taxes by the Constitution, and cannot be deducted from the income tax assessment. -Sec. 2, Art. 1, Mo. Constitution. . (3) The state tax which may be deducted from the income tax is the tax paid to the State during the year in which the income tax is assessed against the person claiming the deduction. The taxes paid during 1918 alone may be deducted from' the income tax assessed during the year 1918. (4) The collector is not authorized to make the deduction provided for in Section 32 until he has been authorized to change the amount of thé bill or make a deduction therefrom by an order of the comptroller, who has him charged with the total amount of the income tax bills in his hands for collection, and until the comptroller has made the appropriate credit on his books reducing the amount of the income tax bills with which the collector is charged.

      Frank W. McAllister, Attorney-General, amiscus curiae.

    (1) The Supreme Court said in Bingham v. Birmingham, 103 Mo. 352: “The presumption is that the Legislature never intended to enact an absurd law incapable of being intelligibly enforced.” It is manifest that it was the purpose and intention of the General Assembly that the income taxpayer should have the right to reduce the amount of the income tax assessed against him by the taxes he pays to the State on his real and personal property for the same year, and Section 32 was designed to enable him to accomplish that purpose. It is clear that the method intended was that he should exhibit his receipt or receipts for his real and personal property taxes to some officer authorized to give him the benefit of the credit in the payment of his income taxes. It is equally manifest, by reference to other provisions of the Income Tax Law and the general scheme and method of assessing and collecting real and personal property taxes, that requiring him to exhibit his receipt or receipts to the assessor utterly fails to accomplish the purpose and intention of the General Assembly. If the word “collector” had been used in Section 32 instead of the word “assessor,” it would be an easy matter for the income taxpayer to exhibit his receipt for real and personal property taxes in payment of his income taxes, as the collector of real and personal property taxes is, the collector of the income taxes and both are due .and payable at the same time. It may be that the insertion of the word “assessor” instead of the word “collector” is a mere clerical error, or that the use of the word “assessor”' instead of the word “collector” is a mere mistake or inadvertence. 36 Cyc. 1146. Judged by the other provisions of the Income Tax Act and the provisions of existing law called into play in the administration of the Income Tax Law by the terms of the act, the use of the word “assessor” in Section 32 instead of the word “collector” must be presumed to have been either a mere clerical error or an inadvertence or mistake of the draftsman of the act, to which the General Assembly did not have its attention called. Under these circumstances, the court should read the statute as the General Assembly intended it to read, and so read it will express the real meaning and'purpose of the General Assembly. Endlich on Interpretation of Statutes, Section 319; Lems’ Sutherland on Statutory Construction (2 Ed.), par. 410.- We challenge the right of the relator to have credit on his income taxes for the two items “state school fund tax, $3,273,” and “state tax for public school purposes, $1,789,326,” for the reason that neither of these items are taxes paid to the State. It is evident from an examination of the statutes that the State levies no tax for the direct benefit of the schools. The only purposes for which taxes paid to the State are levied are for the general revenue fund, the payment of the interest on the School Fund and Seminary Fund certificates of indebtedness, and for the payment of the capitol building bonds and the interest thereon. It is evident that neither of the items mentioned were paid as taxes for any of these purposes, and, as the State does not levy and collect taxes for other purposes, the_ conclusion must be that neither of these amounts were paid to the State as taxes on the real and personal property of relator. The General Assembly was entirely logical in allowing credit on the income taxes only for taxes paid to the State. It was attempting to avoid what might seem to Be double taxation, as the income tax is levied upon incomes derived from real ánd personal property, which also pays a property tax, but the proceeds of the income tax belong exclusively to the revenues of the State and there would be no reason to reduce the amount of taxes payable to the State by taxes paid to counties, school districts or other subdivisions of the State for local purposes.

      Barclay é Wallace for respondent.
    (I) The peremptory writ was correctly awarded to command allowance of the taxes paid in 1918 on the real and personal property of relator as credits on the income taxes assessed against relator “during, said year” after exhibit of the receipts therefor to the assessor and collector under Section. 32 of the Income Tax Law of 1917. Laws 1917, p. 538, sec. 32. (2) The “State School Fund' tax” and the “State tax for public school purposes” (alleged in the petition to have been paid) are taxes paid “to the State,” within the meaning of Section 32, as interpreted by the aid of the entire act. Laws 1917, pp. 526, 532, 534, secs. 5, 9. (3) Section 32 enacts that the credits specified shall be allowed in the payment of the income taxes assessed “during said year,” and operates as an amendment of the prior law of taxation in Missouri. The exhibit of the paid tax bills to the assessor, and the separate record the latter is required (by Section 12) to keep, permit him to have a check upon the collector’s accounts, with reference to such credits on income tax accounts, under Section 32. (4) State school taxes are within the scope and intent of Section 32 because such an interpretation of particular words of aii enactment should be adopted if possible as will bring them into harmony with its general intent and produce reasonable and practical results, in harmony with other parts of the • act. In re Ferguson Ést., 206 Mo. 203; St. Louis v. Lane, 110 Mo. 254; Kane v. Railroad, 112 Mo. 34; State v. Slover, 126 Mo. 652; Railroad v. Gfracy, 126 Mo. 472; Jones v. Driscoll, 94 Mo. 190 (“not” construed into a statute); Minor v. Bank, 1 Pet. 46 (“may” construed “must”); Felts v. Edwards, 204 S. W. 147. The other parts of the act (Sections 5 and 9) show that all' taxes paid are excluded from income to be taxed, and from income tax to be assessed or paid, in view of the ruling on that point by the U. S. Supreme Court. Pollock v. Trust Co., 158 U. S. 618. (5) The whole act helps to interpret Section 32 in allowing credits snch as here claimed by relator “during said year” when the income tax bill is payable, and the intent to exclude all taxes from being considered income (on which income tax is payable) is manifest from several parts of this act. Laws, 1917, pp. 531-5, secs. 9, 11, 14; Laws 1917, p. 534, sec. 9. What a law implies is as much a part as that expressed. United States v. Hudson, 10 Wall. 395; Dooley v. Railway Co., 250 Fed. 143. (6) The State school taxes described in the petition are properly taxes paid “to the State” within the intent of this law, because: (a) They are alleged to .be “State” taxes and the fact is not denied. R. S. 1909, sec. 1830. (b) They are in reality taxes paid “to the State” within the narrowest construction of Section 32, R. S. 1909, 'chap. 106; Laws 1917, p. 518, sec. 11031; Constitution, art. 11, secs. 1-7-11; Constitution, art. 10, secs. 8-11; Railroad v. Price County, 133 U. S. 496; State v. Henderson, 160 Mo. 190; Railroad v. Chapin, 162 Mo. 414;-State v. Phipps, 148 Mo. 31.
   WILLIAMS, J.

The American Manufacturing Company, a corporation, seeks by mandamus to compel the Collector of the Revenue of the City of St. Louis to allow certain credits upon said corporation’s income tax bill.

The suit was originally instituted in the .Circuit Court of the City of St. Louis. Upon a trial in the circuit court a peremptory writ of mandamus was awarded, commanding said collector to allow the credits claimed by the corporation in its petition. The collector duly appealed to this court, and will hereinafter be referred to as appellant. The corporation will hereinafter be referred to as respondent. The facts necessary to an understanding of the issues are undisputed and may be summarized as follows:

Respondent is a foreign business corporation, duly licensed to do business in this State, and is located in the City of, St. Louis. Appellant is the Collector of the Revenue- of the City of St. Louis. During the year 19-18, the respondent corporation made due return of its taxable income for taxation by the State, to the assessor of said city, pursuant to the terms of the Income Tax Act, Laws 1917, pp. 524 et seq.

Thereupon the assessor duly made an assessment of income taxes against said corporation, for which an income tax bill was later issued and placed in the hands of appellant as collector of said city. The income tax bill by its terms was due and payable on or before December 31, 1918, without penalty. During the year 1918 the respondent paid taxes which became due and payable in said year as follows, to-wit:

Manufacturer’s tax on its material, machinery, etc., under the provisions of Art. XVI and Art.v XV. of Chap. 117, Revised Statutes 1909:

Paid Aug. 1, 1918,
State Property Tax ................ $818.25.
State Interest Tax . /............... 54.55.
State Capitol Building Fund Tax---- 109.10.
School Fund Tax ................ 3,273.00.
Also taxes which became due and payable in said year on real and personal property other than above: Paid Dec. 3, 1918,
Ueneral State Revenue Interest and
Capitol Fund Tax ..................$511.23.
Tax for public school purposes...... 1,789.32.

After the payment of the above taxes and on December 3, 1918, the respondent, in an attempt to comply with Section 32 of the Income Tax Act (See Laws 1917, page 538), exhibited the paid tax receipts for all the above taxes to the Assessor of the City of St. Louis, to the Comptroller of the City of St. Louis, and to appellant as collector of said city and requested each of them that respondent be allowed credit on its said income tax bill to the full amount of said tax receipts.

Each of the three officials refused to allow said credits and this proceeding was instituted against the collector.

The determination of the questions presented by this appeal involves the construction of the Income Tax Act and more especially Section 32' thereof, which is as follows:

“See. 32. Taxes paid on real and personal property to be deducted, etc. when. — Any person, corporation, joint-stock company, association or insurance company who shall'have paid a tax assessed upon his real or personal property to "the State during any year shall be permitted to exhibit the receipt or receipts thereof to the assessor to the full amount in the payment of income taxes assessed against such person, corporation, joint-stock company, association dr insurance company during said year.”

More specifically stated there are but two questions presented, which questions, stripped of unnecessary verbiage, are as follows:

1. Should the word “assessor” in said section be construed to read “collector”?

2. Does the phrase, “who shall have paid a tax assessed upon his real or personal property to the State” as used in said section include the taxes which respondent paid for school purposes?

These will be discussed in their order.

I. Should the word “assessor” in Section. 321 of said Act (Laws 1917, p. 538) be construed to read “collector”?

In ascertaining the legislative intent in this regard it will be helpful to call attention to, other provisions of the act as well as- some of the general revenue laws.

Section 11 of the Income Tax Act provides that “every person who has a taxable income shall on the first day of January of each year, or as soon thereafter as practicable, apply in person or by mail, to the assessor of the district in which such person resides, for a proper blank on which to make a return, which said return shall be filed with the assessor on or before the first day of March next following.”

Section 14 of the act provides that “the assessor shall complete the assessment of incomes on or before the first day of March of each year and shall thereupon forthwith certify the result to the county clerk or city auditor who shall compute the taxes thereon, and said clerk shall enter such ‘income tax’ upon the tax books of the year and it shall be collected and paid as personal property taxes are now collected and paid.”

Section 22 of the act provides that “income taxes shall become delinquent on the first day of January following the day when said bills are placed in the hands of the collector.”

From the foregoing it appears - that after March 1st of each year the assessor- has nothing further to do with the income tax theretofore assessed by him except to forthwith certify such assessment to the proper authorities.

Under the general law (Chap. 117, R. S. 1909) pertaining to the assessment and collection of taxes due and payable in any given year on real and personal property, the tax books are not required to be delivered into the hands of the collector until long after March 1st of each year, the date upon which the assessor is required to forthwith certify his income tax assessment lists to the proper officials.

It is therefore evident that a person or corporation against whom an income tax is assessed in any given year could not possibly procure a tax receipt for his real and personal taxes due and payable in that year in time to exhibit the same to the assessor before the assessor’s duties in connection with such assessed income tax had entirely terminated.

To whom did the General Assembly intend such tax receipts should be exhibited? To the collector, who from the time such tax receipts could first possibly come into existence, was the only official authorized by law to collect such income taxes, or to the assessor,' who at such time had nothing further whatever to do with the asessment or the collection of. said income taxes ?

The act says that the receipts shall be exhibited to the full amount, not for the purpose of affecting the assessment of the income tax, but uin the payment of income taxes.”

The payment of the income tax is required to be made to the collector and not to the assessor.

To hold that the General Assembly intended that the tax receipts should be exhibited to the assessor would be to hold that it “intended to enact an absurd law incapable of being intelligently enforced.” The presumption is that the General Assembly did not intend to enact an absurd law. [Bingham v. Birmingham, 103 Mo. 234, l. c. 352.]

When the entire ■ act is read and considered in the light of the entire scheme of - revenue assessment and collection we are satisfied that it was the intention of the General Assembly that such receipts should be exhibited to the collector whose duty it is to collect the income tax and that the word “assessor” in Section 32 of the act is the result of a clerical error and should be construed to read “collector,” in harmony with the true legislative intent.

The correct rule here applicable is stated in 36 Oyc. 1126 as follows:

“Mere verbal inaccuracies, or clerical errors in statutes in the use of words, or numbers, or in grammar, spelling, or punctuation, will be corrected by the court whenever necessary to carry- out the intention of the Legislature as gathered from the entire act.”

To the same effect are the following authorities: Endlich on Interpretation of Statutes, par. 319 and numerous cases therein cited; 2 Lewis-Sutherland on Statutory Construction (2 Ed.), par. 410 and cases therein cited; Frazier et al. v. Gibson, 7 Mo. 271 (wherein the word “judgment” was construed to read “assignment”) ; Ellis v. Whitlock, 10 Mo. 781 (wherein the word “section” was construed to read “sections”).

II. The next question presented is, what tax receipts are permitted by said Section 32 to be exhibited in the payment of income taxes?

All the parties to this record and also the learned Attorney-General, appearing amicus curiae by leave of court, concede that it must be receipts for taxes which become due and payable during the same year in which the income tax in question also becomes due and payable. In this we think the parties are correct.

The appellant, and the learned Attorney General likewise, insist, however, that the circuit court erred in including in the peremptory writ the items showing receipts for the payment of school taxes.. These items include the school fund tax of $3,273 paid August 1, 1918, under the Manufacturer’s Tax Law, and the tax for public school purposes in the sum of $1789.92 paid December 3, 1918, under the general revenue laws. No objection is raised concerning the other items which were all allowed by the trial court. Respondent contends that the court properly included the taxes paid for public school purposes.

The act provides that “any person . . . who shall have paid a tax assessed upon real or personal property to the State during any year shall be permitted to exhibit^the receipt or receipts thereof to the “collector” (see construction given in paragraph one above) to the full amount in the payment of income taxes assessed against such person . . . during said year. ” It will be noticed that the act uses the phrase “paid . . . to the State.”

Under the law the only taxes on real and personal property which the State itself is permitted to levy and collect are as follows: (a) A tax of fifteen cents on each one hundred dollars’ valuation for State revenue and one cent on each one hundred dollars’ valuation to pay the interest on the certificates of indebtedness of the State to the Public School Fund and the Seminary Fund (Laws 1915, p. 393); (b) A tax of two cents on the one hundred dollars’ valuation for the payment of the interest and to create a sinking fund for the payment of the State Capitol' building bonds. [Laws 1911, p. 416-417.]

The school taxes allowed by the trial court were not taxes paid to the State under levies made by the State for any of the above purposes, but evidently were taxes levied by and collected for the benefit of the local school district.

It is contended by the respondent that the provisions of Section 32 were inserted in the act to avoid a charge of “double taxation” being made against the tax. Whether or not that was" the legislative purpose it is not necessary now to determine. But even, though such should be conceded to have been the purpose we are unable to see wherein the argument can be of use to respondent in the present case.

On# of the elements of illegal double taxation is that “the subject of taxation shall directly contribute twice to the same burden while other subjects of taxation belonging to the same class aré required to contribute but once.” [Cooley on Taxation (3 Ed.), vol. 1, p. 394.] A tax levied and collected by and for a “school district” is entirely a different burden from the tax levied and collected for State purposes, even though a part of the State taxes so collected is in fact afterwards distributed by the State to school districts to be used in helping maintain the public school system. So even if the Legislature, by the provision, made an attempt to avoid double taxation it was not at all necessary to that end that school taxes (levied by local school authorities) should be allowed as an offset to any part of the income tax, levied and collected as a State tax.

Neither can the fact that a school tax is levied for a public purpose and one in which the State is greatly concerned be of any compelling force in adding words which would enlarge the statute to the extent of including tax receipts for school taxes.

- ’ All taxes levied in this State whether levied by the State itself or by the school district, county or other taxing authority, must under the clear mandate of the Constitution (Art. 10, sec. 3, Mo. Constitution) be levied and collected for “public* purposes” only. The State then may be said to be greatly concerned with each purpose for which a tax may under the Constitution be levied. Rut the intention clearly appears from the language of Section 32 of the Income Tax Act that a limit was intended to be placed upon the tax receipts which might be exhibited in payment of the income tax. The language used is that it must be a tax “paid to the State.” The language is clear and unambiguous and we are unable to construe the language to include the tax receipts for school purposes which were exhibited ■by the respondent corporation in the case at bar.

We are of the opinion that the court erroneously included the school tax items, and that therefore the judgment should be reversed and the cause remanded.

It is so ordered.

All concur except Woodson, J., who dissents; Bond, G. J., and Graves, J., each concur in separate opinion.

BOND, C. J.

(concurring.) — Section thirty-two of the Income Tax Law was held in judgment by Court in Banc and adjudged to be in all respects a constitutional enactment. [Ludlow-Saylor Wire Co. v. Wollbrinck, 205 S. W. 196, l. c. 200.] It distinguishes a class of taxpayers who have already paid taxes to the State levied upon other property than income, from all other persons subject to income taxation. To persons belonging to the class thus created, whether natural or artificial, the section under review permits a deduction from the amount of income taxation otherwise payable by them, for whatever sums they may have paid* to the State during the current year on other than income property. The section under review is part of the general law of the State specifically taxing incomes and deals exclusively with the rights inter sese of the State and such taxpayers. It affords no basis for a reduction of the revenues derived thereunder by the State, by the allowance of a credit other than for a direct payment for the benefit' of the general revenues of the State. The deduction claimed in the ease at bar for the amount of taxes paid by relator to the school fund is, therefore, not within either the letter or the spirit of the section of the Income Tax Law under review (Laws 1917, p. 538, see. 32) and the ruling of the main opinion on that point is clearly correct,- as is also its holding that the term “assessor” was used in the section in the sense of “collector;” for one man is often both. This conclusion cannot be escaped in the light of the context and the terms employed in the section, the sequence of the duties performable by an assessor and a collector, and the obvious object of the act. It is the duty of the courts not to permit the intendment of a valid enactment to perish by a slip of the pen on the part of the copyist of a bill, or a verbal inadvertence of the draughtsman.

For these reasons I concur in the main opinion.

GRAVES, J.

(concurring). — I feel constrained to concur in this opinion because our learned brother has given, as I think, the best construction that can be given, having in view the awkwardly drawn act (drawn prior to the meeting of the Legislature as current history goes) with which he had to' deal. It is to be hoped that future legislation on the subject will T?p clearer. The whole scheme is an exceedingly close legal question under our Constitution. The idea that an “Income Tax” is, in fact and law, a tax on property, and therefore violative of our Constitution, rises before us as Banquo’s ghost. Whilst we have held this illy drawn scheme constitutional (Ludlow-Saylor Wire Co. v. Wollbrinck, 205 S. W. 196) I joined in the majority opinion in that case with much trepidation and doubt. So that, as above stated, it is hoped that the future legislation upon this subject when it reaches us (as it no doubt will) will have such clearness of expression as will exclude all legal question except the constitutional ques: tion.