text:
    ROSE CLARK v. MARGARET McATEE and RUFUS McATEE, Appellants.
    Division One,
    December 6, 1913.
    EJECTMENT: Evidence. Evidence in ejectment for city lots held insufficient to support a judgment for the plaintiff.
    Appeal from Knox Circuit Court. — Hon. Charles D. Stewart, Judge.
    Reversed.

      Frisby H. McCullough for appellants.

      O. D. Jones and James C. Dorian for respondent.
   BLAIR, C.

This is an action in ejectment. The dispute concerns the boundary line between certain lots in the city of Edina. The ^aS ^een here kef°re [227 Mo. 152.] As on the former trial, the judgment was for plaintiff, and defendants appeal.

The only plat of a survey in the record is called the “Robinson Survey,” was offered by plaintiff and shows the southwest corner of the original town of Edina is also the southwest comer of section 18, township 62, range 11. The Robinson Survey shows 16 blocks. Block 1 is the southwest block in the plat. Blocks 2, 3 and 4 lie, in order, north of block 1 and between 1 and 2, 2 and 3 and 3 and 4 are streets platted as sixty-six feet wide.

The length of the west line of each of blocks 1, 3 and 4 is platted as four chains. That of block 2 is platted as 4.02 chains. Clay street runs between blocks 1 and 2; Jackson, between blocks 2 and 3; Smallwood, between blocks 3 and 4; and Marion street runs north of block 4 and has a platted width, at the northwest corner of that block, of fifty-five feet.

Survey No. 77, which, played such an important part in the former trial and the former hearing in court, was again relied upon by respondent, though not offered in evidence as an official survey.

The surveyor who made it testified he was following the Robinson Survey, that he began at the southwest comer of section 18-62-11 at the “nigger head rock” which has been immortalized by this litigation. As on the former trial, it appears there is no plat or field notes calling for this rock, but the surveyor above mentioned had previously used it in other surveys.

He testified he verified its location at the southwest corner of section 18-62-11 by running south 111 links to a limestone rock, there being a call in “the field notes,” supposedly those of the survey of section 18, for a limestone rock 111 links south of the southwest corner of that section. To this part of his testimony and that concerning other marks, corners, buildings, etc., further reference will be made in the course of the opinion.

The surveyor also testified that the actual; measured distance from the southwest corner of the section and original town to the northwest corner of the inclosure on block 3, as shown by survey No. 77, is 925.58 feet, and that this distance corresponds exactly with that called for by the Robinson Survey; that the actual distance from the northwest corner of block 3 north across Smallwood street to the southwest corner of block 4, as inclosed, is 74 1-3 feet; and that the actual length of the west line of block 4, as inclosed, is 251 1-3 feet.

As platted, block 4 is divided into two equal parts by an alley miining north and south through its center. Both the east and west halves of the block, as thus divided, are divided into five lots — lots 1 to 5, inclusive, lying in the west half and fronting west- on First street, and lots 6 to 10, inclusive, lying in the east half and fronting east on Second street. Lot .1 is the southern lot in the west half, and 2, 3, 4 and 5 lie north of it, in order. Lot 6- is the southern lot in the east half, and 7, 8, 9 and 10 lie north of it, in order. Each of these lots has a platted frontage of 52 4-5 feet, and of these respondent owns lots 4, 5, 8, 9 and 10 and appellants own lots 1, 2, 3, 6 and 7. The lines in controversy are those between lots 3 and 4 and lots 7 and 8.

The surveyor mentioned testified that his measurements disclosed that the true line between lots 3 and 4 was “about eight feet” south of appellants’ fence, and the line between lots 7 and 8 was “about ten or twelve feet” south of appellants’ fence. It may be noted here that the platted distance from the southeast corner of block 1 to the northeast corner of block 4 is 3.3 feet greater than the platted distance from the southwest corner of block 1 to the northwest corner of block 4.

This surveyor also testified that respondent’s north fence was some twelve feet north of what he fixed as the true north line of block 4 and of lot 5 of-that block. He did not measure to the north boundary of the original town, as shown by the plat, nor did he make any measurements of the actual occupancies of respondent and appellants.

For appellants there was in evidence actual measurements of the inclosures of respondent and appellants. One witness who made measurements testified, and the plat made by him disclosed, that the west line of block 4, as inclosed, is 253% feet; and the east line 259 feet; that appellants’ frontage on the west side of the block is 149 feet and respondent’s frontage on the west side is 104% feet. Appellants ’ frontage on the east side is 105 feet and respondent’s frontage on the east 154 feet.

■ Respondent’s case depends absolutely upon the testimony of the witness who surveyed the property for her and made survey No. 77. In making this survey this witness testified that his purpose was to follow the calls in the Eohinson Survey, accepting it as accurate. The questions are whether he used the correct beginning point as called for by that survey; and, if so, whether he accurately followed the calls of that survey for courses and distances.

Let it be conceded that the beginning point he selected was the right one, yet the record demonstrates the inaccuracy of his subsequent proceedings. His testimony and measurements show that the distance from the beginning point to the northwest corner of the inclosure in block 3 is 925.58 feet. ' This, he testified, is the distance between the beginning point and the northwest comer of block 3, as platted. The slight-error apparent in this measurement is negligible. His survey shows the distance from the northwest corner of block 3,- as inclosed, across the street to the southwest corner of block 4, as inclosed by appellants’ fence, to be 74 1-3 feet. It also shows that 'the length of the west line of the inclosures of respondent and appellants in block 4 is 251 1-3 feet. He testified respondent’s north fence, which should have been placed along the true north line of lot 5, block 4, is twelve feet north of the true line. He also testified that the fence which divides the occupancies of respondent and appellants in the west half of block 4 is about eight feet north of the true line between lot 3, owned by appellants, and lot 4, owned by respondent.

The northwest comer of block 3, as platted in the Eohinson Survey and as marked by the inclosures now on block 3 being identical, according to the surveyor upon whose testimony respondent’s case depends, the distance between the beginning point and the northwest comer of block 3 must be accepted as the basis of measurements to the north. The northwest corner of the inclosure in block 3, the error of 4.32 inches being negligible for the purpose of the argument, may be accepted as fixed and will be designated as “A.” From this point to the southwest corner of appellants' inclosure on block 4 is 74 1-3 feet. From this last mentioned point to the northwest corner of respondent’s inclosure is, according to respondent’s evidence,; 251 1-3 feet. The sum of these distances is 325 2-3 feeit. The platted distance from “A” to the northwest corner of block 4, as platted, is 330 feet. This distance is made up- of the distance across the street, as platted, north from “A” sixty-six feet and the length of the west side of block 4, which is platted as 264 feet. The fence on the north side of the respondent’s inclosure in the west half of block 4 is, therefore, 4 1-3 feet south of the true line, as platted.

How the witness arrived at the conclusion that respondent’s fence is twelve feet too far north is inexplicable when the measurements upon which the entire probative force of his testimony depends demonstrate it is 4 1-3 feet too far south.

There is another method of arriving at the same result. Each lot is 52 4-5 feet wide according to the plat. Commencing at “A” and adding to the platted width of the street (66 feet), immediately north, the plaítted width of lots 1, 2 and 3 owned by appellants, the result is the distance from “A” to the true north line of lot 3 and is 224.4/eet. If appellants’ fence is on their true line, respondent would have had left, actually inclosed, but 101 4-15 feet front and would have lacked 4 1-3 feet of having inclosed, on the north, all to which she is entitled.

If the measurements given by the witness are correct, it is not possible to accept as possessing any probative force his mere conclusion that appellants' lines are “about eight feet” and “about ten or twelve feet” too far north.

If his measurements are incorrect, or if he started from the wrong beginning point, of course his survey and his testimony fall and respondent’s case falls with it.

It may be added that it clearly appears that respondent has in possession a larger proportion of the block than have appellants; that the “nigger head rock” is conclusively shown to have reached its present position by reason of the fact that it was ploughed up in the street and placed there solely to get it out of the way of those working in the street. The limestone rock called for by the field notes as being 111 links south of the southwest comer of section 18 was undoubtedly under “Fisher’s sidewalk,” while the limestone rock found by respondent’s surveyor when he measured south 111 links from the “nigger head rock” was in a ditch and under no sidewalk. To accept the conclusion upon which respondent’s case depends would, according to the surveyor, change every street in Edina save one. The Winterbottom building, a three-story building erected in the fifties, is relied upon as evidence of the correspondence between the present location of the “nigger head rock” and the southwest corner of section 18. There is no satisfactory evidence that this building was erected on any lot line, though the Purveyor who testified for respondent said he had used its location on the theory it had been erected on the south boundary of one of the south lots of the original town. The fact that the same witness testified that he had run a line north •from the “nigger head rock” and struck the corner stone in the west line of the section is of no value since he gave no distance for the line thus measured, and without the distance between the two the corner stone mentioned is valueless as an indication whether in commencing at the “nigger head rock” the witness commenced too far north or too far south.

In view, however, of the fact that the measurements given by the witness demonstrate that he was wrong and that appellants are not in possession of any of respondent’s ground, and in view- of the fact that it is upon this witness respondent’s whole case depends, the evidence concerning the position of the “nigger head rock” becomes of little importance.

The judgment is reversed.

Brown, C., concurs.

PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: BROWN, C.

license: Public Domain

text:
    EUGENIE TURNER and GEORGE W. TURNER, Appellants, v. MARY BUTLER et al.
    Division One,
    December 6, 1913.
    1. INSTRUCTIONS: Modified by Court: Right to Court’s Ruling on Them as Presented. A party has a right to the court’s judgment on an instruction as he presented it. When the court modifies it, it becomes the court’s instruction, for which- the party is not responsible. If the court ought to have given the instruction in the form in which it was presented, then the modification is error of which the party has the right to complain. If it ought not to have been given as presented, there is no error in refusing it, and the court’s modifying it cannot make the original refusal erroneous.
    2. --: Will Contest: Burden of Proof: Preponderance of Evidence. Where in a statutory will contest there were, aside from proponents’ evidence, statements in the testimony of the. contestants’ witnesses tending strongly to prove the capacity of the testator, an instruction asked by contestants was properly refused which required the proponents to show the testator’s capacity “by a preponderance of the evidence.” Proponents’ burden in such case is to establish testamentary capacity by a “preponderance of all the evidence,” and to aid him with that burden he has a right to have the contestants’ evidence considered as well as his own.
    3. UNDUE INFLUENCE: Will Contest: Burden of Proof. The proponent in a will contest having shown that the will was executed with all the formalities prescribed by law while' the testator was of sound mind, it will then be presumed that it was his free and voluntary act. If the contestant then claims that the instrument represents the will not of the testator but of another, the burden lies upon him to prove it.
    4. -: -: Filial Relations: Arising from Marriage. The law will not permit one to take advantage, for private gain, of relations of trust and confidence between the natural or lawful adviser and the advised, or the trustee and his beneficiary; indeed in such cases undue influence will frequently be presumed unless the act can be fully accounted for by another and adequate motive. But the law does not look with disfavor on -the performance of filial offices, nor does' it discourage the substantial recognition of their performance; and> these principles apply as well to relations having their origin in marriage as in consanguinity.
    5. -: -: -: -: Evidence. Evidence held insufficient in this case to warrant submission to the jury of the issue of undue influence, although a testator eighty years old and weakened in mind and body made what was proportionately a very large provision for his daughter, who with her husband lived near-by, the husband having acted, as he said, as testator’s legal adviser and business manager for two years before his death.
    6. EVIDENCE: Contest of Will: Mental Capacity: Conversations with Attorney: Exceptions. A practicing lawyer testified for contestants that the testator, who had been his friend for twenty years, came to see him four or five months before the date of the instrument in suit and talked to him about drawing a will, saying that he had one but was not satisfied with it. Testator never employed the witness to draw a will nor did witness charge any fee. Contestants asked him questions about this talk for the evident purpose of eliciting the opinion of witness as to his testamentary capacity, some of which were excluded by the court, the contestants excepting. The witness was afterward recalled, and the court said: “The court reverses its ruling heretofore made as to excluding the testimony of Mr. Sebastian.” Contestants then asked witness whether from all the conversation he had with Mr. Butler at that time, business, and social, he was of sound mind. Witness answered: “I don’t think his mental condition was such .on that day that it would have been proper for him to have made a will.” Witness was then asked as to the conversation, and the court said: “If he was acting as attorney, he cannot state the communications made to him.” No exception was taken to this and the witness was excused. Held, if there was any error in the court’s action with reference to the exclusion of this testimony, it is not saved for review in this court.
    Appeal from Boone Circnit Court. — Ron. N. D. Thurmond, Judge.
    Affirmed.

      Gillespy <& Conley for appellants.
    (1) The court should have submitted to the jury the issue of undue influence, as the evidence was substantial enough to raise a presumption of undue influence and was substantial enough to show undue influence without the presumption, (a) Where one stands in a confidential or fiduciary relation to testator and a will is made in his favor there is a presumption of undhe influence. Mowry v. Norman, 223 Mo'. 476-, 204 Mo. 189; Roberts v. Bartlett, 1901 Mo. 702; Bradford v. Blossom, 190 Mo. 143; Dausman v. Rankin, 189' Mo. 708; Maddox v. Maddox, 114 Mo. 40; Hegney v. Head, 126 Mo. 619; Gay v. Gilliam, 92 Mo. 263; Dingman v. Romine, 141 Mo. 475. (b) Undue influence need not be proved by direct and positive evidence, but it is sufficient if it can be shown by or inferred from the facts and circumstances in evidence. Mowry v. Norman, 204 Mo. 193; Roberts v. Bartlett, 190 Mo. 700; Bradford v. Blossom, 190 Mo. 139'. Nor is it required that the acts of undue influence were exercised at the exact time of the execution of tire will, but it is sufficient to show that such influence had been acquired previously and did operate at the time of the malting of the will in the disposition of the testator’s property. Mowry v. Norman, 204 Mo. 193; Taylor v. Wilburn,. 20 Mo. 3101. (2) • The evidence of Sebastian as to conversations with Butler at the time of the attempt to make a will should have been given. In stating that the rule of exclusion of confidential communications with attorneys and physicians does not terminate with the death of the client, care must be taken to distinguish between cases where disputes arise between the client’s representatives and strangers and those in which both of the litigants claim under the client. As to the latter class it would be obviously unjust to determine that the privilege should belong to one claimant rather than the other. Thompson v. Ish, 99' Mo. 176; Green v. Railroad, 211 Mo. 42; Graham v. 0’Fallon, 4 Mo. 342; Russell v. Jackson, 9 Hare, 392; Scott v. Harris, 113 111. 447; Winters v. Winters, 102 Iowa, 53; Glover v. Patton, 165 H. S. 394; 4 Wigmore on Evi. sec. 2329 ; In re Shapter, 35 Colo.-578. Our statutes put physicians and lawyers on exactly the same grounds. Thompson v. Ish, 99 Mo. 177; Ex parte Gfeller, 178 Mo. 267. (3) The court erred in modifying plaintiffs’ instruction 2. The modification consists in erasing the words “a preponderance of” and “the defendants have shown by such preponderance of” and inserting in lieu of the last “it has been so shown by the. ’ ’ The prejudicial error in the- alteration is that whereas plaintiffs’ instruction specifically directed the attention of the jury to the point of law that the burden of proof was on the defendants throughout the trial to establish unsoundness of mind, the alteration leaves the instruction in such form that they would not gather from it that such was the law. The instruction as asked was one given in the case of Mowry v. Norman, 223 Mo. 472, which was challenged in this court and was approved after discussion. The approved instruction is verbatim the same as the rejected instruction in this case.

      Harris & Finley and Whitecotton S Wight for re^spondents.
    (1) The court did not err in withdrawing the issue of undue influence from the jury, (a) The evidence was insufficient to raise a presumption of undue influence, based on confidential relations. Campbell v. Carlisle, 162 Mo. 634; Seibert v. Hatcber, 205 Mo'. 83; Dausman v. Rankin, 205 Mo. 83; Luebbert v. Brockmeyer, 158 Mo. App. 2101. (b) The record discloses no evidence, circumstantial or otherwise, tending to show undue influence. Gibony v. Foster, 230' Mo. 106; Weber v. Strobel, 236 Mo. 649; Turner v. Anderson, 236 Mo. 523; Hayes v. Hayes, 242 Mo. 155. (2) There is no reversible error in the exclusion of the evidence of the witness Sebastian as to conversations had with testator while acting as his attorney, (a) No exception was saved' to the ruling of the court on this point. Rearden v. Railroad, 215' Mo. 135; Wyeoff v. Hotel Co., 146 Mo. App. 562; Roe v. Bank, 167 Mo. 426. (b) The evidence was not admissible under the statute. R. S. 1909, sec. 6362; Sweet, v. Owens, 109 Mo. 7; Hamilton v. Crowe, 175 Mo. 634; Cross v. Riggins, 50' Mo. 335; Johnson v. Sullivan, 23 Mo. 474; Pinson v. Campbell, 124 Mo. App. 260; Henry v. Buddecke, 81 Mo. App. 365'. (c) The excluded evidence could not have affected the verdict, and even if admissible should1 not work a reversal of the judgment. Hamilton v. Crowe, 175 Mo. 6491. (3) The court did not err in modifying appellants’ instruction numbered 2 as to burden of proof. Berger v. Storage Co., 136 Mo. App. 43; Clark v. Kitchen, 52 Mo. 316; Berry v. Wilson, 64 Mo. 164; Cramer v. Nelson, 128 Mo. App. 398. (4) The judgment is for the right party and should be affirmed:. (a) The evidence entirely fails to justify the court in submitting the issue of mental capacity to the jury. Gibony v. Foster, 230 Mo. 106; Winn v. Grier, 217 Mo. 421; Archamboult v. Blanchard, 198 Mo. 384; Sayre v. Princeton, 192 Mo. 95; Story v. Story, 188 Mo. 110'. (b) Where the verdict is for the right party the judgment should be affirmed even though errors may have been committed in the trial of the case. Shuepbach v. Gas Co.. 232 Mo. 60'3: R. S. 1909, secs. 1850' 2082.
   BROWN, C.

This is a statutory contest of the will of John Butler, late of Boone county, Missouri, by plaintiff, his granddaughter, against his widow, four children, Loutitia Phelan, Mary Woods, Martin Butler and Lizzie Vantine, a grandson, John Butler, only heir of a deceased son, William Butler, and Butler and Thornton Stewart, grandsons, who with plaintiff aré the three heirs of a deceased daughter, Annie Butler Stewart. The executors are also made parties. The grounds of the contest are fraud, undue influence, alteration of the instrument after signature and unsoundness of mind.

At the close of all the evidence the court withdrew the issue of undue influence from the jury and refused all instructions offered by plaintiffs on this issue. The case was submitted on the sole issue of unsoundness of mind.

The will in question was made and signed December 8, 1895, when the testator was about eighty years of age. Although he had been a man of considerable vigor and business ability he had for some time been suffering from a general breaking down incident to old age, and had been practically confined to his house for some months previous to the making of the will. The evidence tended substantially to show that at that time he was not of sound and disposing mind, although some of the numerous witnesses introduced by contestants testified that they considered him all right in that respect.

The undue influence relied- on is particularly charged in the petition to have been exerted by defendant Loutitia Phelan and her husband, Vincent D. Phelan, over the diseased and weakened mind and will of Butler while he was sick and under the influence of intoxicating liquors and drugs administered by them as well as other artifices without which he would not have signed and published the alleged will. As a matter of fact the Phelans lived on Mr. Butler’s land about two miles from his residence. Mrs. Phelan was the only child who lived in Boone county and she and her husband were frequently at the Butler home; and while Mr. Phelan did not wholly superintend the operations on the testator’s farms, his advice was sought by the hands and his suggestions were followed in the absence of Mr. Butler. The latter does not seem to have known much about the- technical description of lands. He seems to have been helpl-ess in the presence of a map or survey, and depended entirely on Phelan, who seems to have been expert in such matters, and said that he could describe the entire real estate holdings of Mr. Butler without a map. Mr. Carter, Mr. Butler’s attorney, when writing the will in question, had difficulty in describing the land- and availed himself of the services of Mr. Phelan who was at the Butler home at the time, as was Mrs. Butler, who is shown by the evidence to have been taking an active part in Mr. Butler’s affairs. Mr. Phelan had said to both his wife’s sister-in-law and her son that he had been the business manager and legal adviser of Butler for two years before his death, although there is nothing in the evidence to indicate that he was a lawyer or had any special training' in that direction.

In the latter part of February or the first part of March, 1906, Mr. Stephen March received word' from Mr. Butler through some neighbors'to come to write a will. He found Mr. Butler in bed or in a reclining’ chair and said that he wanted Mr. March to rewrite a will. Mrs. Butler got the old will, the one in controversy here, and handed it to Mr. March. Mr. Phelan was not there. He- got his map for Mr. March to- lo-ok over and pick out certain pieces of land in which he wanted to make a change. March told Mr. Butler that he was not accustomed to that kind of work, and would rather have some one to assist him because he might get it wrong. Mr. Butler proposed Mr. "W. W. Brundage, who did not come, and March suggested Mr. Phelan. Butler said, ‘ ‘ He is the very man, ’ ’ and they telephoned for him and he came. In the meantime Mr. Butler asked Mr. March to read the will until he got to “Marty” and then stop. By that time Mr. Phelan was there. At Mr. Butler’s direction Mr. March copied the will as far as the beginning of the devise to Martin E. Butler, and had finished when Mr. Phelan came. He then told him the trouble and Phelan said “I can almost locate that land without looking over the map; ’ ’ that it was more trouble than he thought it would be. Mr. March after relating these facts in his testimony proceeded: ‘ ‘ Uncle Johnny said, ‘ I want all in No. 17 west of the creek, Lick Fork Creek,’ I think he says, ‘to gio to Marty.’

“Q. Had you put that in the will you were writing? A. No, sir. Mr. Phelan just-made the remaik, ‘Uncle Johnny, don’t you know, Uncle, that there is ten acres that does not lie due west of Lick Fork Creek, there is ten acres that is west of Perche?’

‘ ‘ Q. He had said he wanted all west of Lick Fork Creek? A. Yes, sir, in the 17th.

“Q. And Mr. Phelan asked him if he didn’t know • — A. That there was ten acres—

“Q. Lying west of the Perch©? A. That didn’t lie west of the Perche.

“Q. What did Mr. Butler say to that? A. It just appeared to kind of unnerve him. He got all out of sorts about it.

“Q. What did he say? A. He just said, ‘ Squire, you just burn up what you have written there and I will get Mr. Tom Carter back here and have him to fix this up.’

“Q. What else did he add when he told you to bum the papers? A. I.put them in the stove. And after refllecting a little • while, he says: ‘No, that wouldn’t do. I may pass away before Tom Carter gets back here and' you just let me rest two or three d'ays and I will call you again and we will fix it up.’

“Q. Did he send for you any more? A. Not after that. ’ ’

The map admitted in evidence shows that Perche Creek, for the most of the way, forms the west boundary of section seventeen but is deflected eastwardly and comes back to the line in such a way as to leave about ten acres of the section west of the creek and bounded on the west by the middle third of the section line. Lick Pork Creek enters the northwest quarter of the section from the north and runs in a southwesterly direction through that quarter, emptying into Perche Greek, leaving a considerable tract of land in the northwest corner of seventeen lying east of Perche Creek and west of Lick Fork. One would judge from the map that there are forty acres or more.

The will .of John Butler begins as follows:

“I, John Butler, of Boone county, State of Missouri, being of sound mind and memory and of disposing disposition, and realizing the uncertainty of life and the certainty of death, do hereby make and publish this my last will and testament, hereby revoking and annulling all former wills made by me.

“First, I desire that .all my just debts, if any, be paid out of my personal estate, by my executors hereinafter named, as soon after my death as convenient.

“Second. It is my will, and I direct that my beloved wife, Mary Butler, have the use .and control, and receive the rents and profits of all the real estate of which I may die seized, during the term of her natural life, or as long as she remains my widow, and at her death or remarriage, I direct that my real estate be divided among my children and' their descendants in the way and manner hereinafter set forth.

‘ ‘ Third. At the death or .remarriage .of my wife, Mary Butler, I direct, and it is my will,-that my real estate be divided as follows:”

Then comes a devise to Martin E. Bntler of 420 acres of land; to Mrs. Phelan of 602 acres; to his daughter Mary Woods, wife of P. S. Woods, 520 acres; to the grandson John Bntler, son of William Butler, 240 acres; to the grandson Bntler Stewart, 120 acres; to the grandson Thornton Stewart, 150 acres; to the granddaughter, Eugenia Turner, the plaintiff, 80 acres. The .remainder of the real estate, consisting of about 700 acres, was then devised to be sold upon the death or remarriage of his wife and the proceeds to be divided between the three children Martin E. Bntler, Loutitia Phelan and Mary Woods in equal parts.

The contestants introduced as a witness C. B. Sebastian, a practicing lawyer, who testified that he had known John Butler for twenty years before his death and saw him in July or August, 1905,- when he came to his office to consult about writing his will, and said' he had a will but was not satisfied with it. The following questions were asked, and answers given by him:

“ Q. Bid you act as attorney for Mr. Butler and receive a fee for it? A. No, sir. Q. You didn’t advise with him, in the capacity of an attorney? A. I think I did.”

By Mr. Whitecotton (for defendants): “We object to any conversation between attorney and client.”

The court made no ruling but said: “You might examine him further.” In answer to questions by Mr. Whitecotton the witness said: “Uncle Johnnie and I were particularly friendly and talked about a great many matters and he discussed the question with me about the will, but the will was not written. He was to come back at another time and nothing was done that day, except to have a conversation in regard to it. . . . He didn’t seem to have any very clear idea of what he wanted then. Pie was not satisfied with the will that was written and wanted another will but was not clear about what he wanted done. He arranged with me to come back as:ain but never did so>.”

By Mr. Conley (for contestants) : “I will get you to state whether he appeared to understand the nature and extent of his property?”

By the court: “1 have not passed on the other question. Objections sustained.” Defendants excepted.

Witness continued; “In my talk with Mr. Butler, I was not able to get clearly what he wanted done; he didn’t seem to be clearly of any opinion as to what he wanted done and I suggested to him to think the matter over carefully and come back.”

By Mr. Gillespy: “Is that the only reason. Mr. Sebastian, why you didn’t write the will that day?”

By Mr. Whitecotton: “We object to that as immaterial.” Which objection was by the court sustained and plaintiffs excepted.

By Mr. Gillespy: “I will ask you if the reason that you didn’t write it was that Mr. Butler was — ”

By Mr. Harris (for defendants): “We object.” Which objection was by the court sustained, and plaintiffs excepted.

By Mr. Gillespy: “I will ask you if Mr. Butler had the capacity, on that occasion, to make a will and! make proper disposition of his property?”

“A. Physically he was very weak, and mentally he was not very clear. I mean by that that his statements in regard to what he wanted to do were somewhat conflicting and confused. I thought it best not to write the will. ’ ’

By Mr. Whitecotton: “We ask that the latter part of the answer be stricken out as not responsive to the question and improper.”

By the court: “Motion sustained as to ‘I thought it best not to write the will.’ ” Plaintiffs excepted.

Questioned by the court, the witness stated that before that time he had not been attorney for Mr. Butler, who had only consulted him as a friend. That on this occasion he talked about his will and srave him some ideas about it but was not very clear about it. Had witness written tbe will he would bave charged for it. He said he would come back some other time. Mr. Butler did not employ him.

The foregoing includes all tbe exceptions taken by tbe plaintiffs to rulings of tbe court relating to the examination of Mr. Sebastian upon the question of tbe testamentary capacity of Mr. Butler. He was after-wards recalled for further examination, when tbe court said: “The court reverses its ruling heretofore made as to excluding tbe testimony of Mr. Sebastian,” and tbe following question and answer followed:

“ Q. I will ask you then, Mr. Sebastian, if, from all tbe conversation which you bad with John Butler in your office at that time, whether sociably or in regard to business, as to whether or not be was of sound mind or not? A. I will answer that in this way. I don’t think bis mental condition was such on that day that it would have been proper for him to have made a will. ’ ’

The witness was then asked as to the conversation between him and the testator at the time, and the court said: “If be was acting as attorney, be cannot state tbe communications made to him.” No exception was taken to this statement or ruling, and the witness was excused.

In submitting the question of testamentary capacity to the jury the contestants asked the following instruction:

“2. In determining tbe issue of sufficient soundness of mind or testamentary capacity possessed by tbe testator to make a will, before you can find in favor of the proposed will you must believe from a preponderance of the evidence that, at the time of tbe signing and execution thereof tbe said John Butler bad sufficient understanding to fully comprehend the nature of the transaction that be was engaged in, tbe nature and extent of his property, and to whom he desired to give and was giving it, without the aid of any other person, and unless the defendants have shown by such preponderance of evidence that he did possess all .of these requisites, you should find this issue in the negative and against the will. ’ ’

This was refused by the court in the form asked. The court then modified it by striking out the words italicized and inserting in lieu of the last group so stricken out the words “ it has been so shown by the. ’ ’ There was a verdict establishing the will. The appellant assigns the following errors.

“1. The court erred in giving instruction 2 for defendants, being a peremptory instruction on undue influence, and in refusing plaintiffs’ instructions 3 to 10 inclusive, all on undue influence.

“2. The court erred in rejecting the evidence of Sebastian as to conversations with Butler at the time he consulted him about writing the will.

“3. The court erred in modifying plaintiffs’ instruction 2 and omitting the only specific declaration in the instructions that the burden of proof of the issue of unsoundness of mind lay with the defendants.”

I. We will first consider the question whether the’ court committed error in refusing the second instruction requested by the appellants in the form in which it was asked; for it is not contended that it was erroneous as given. The appellants contended that they had the right to the. court’s judgment on the instruction as they presented it, and that when modified it became the court’s instruction, for which they were not responsible, and this is undoubtedly true. [Jordan v. Transit Co., 202 Mo. 418, 431; Maxey v. Railroad, 95 Mo. App. 303., 311; Meyer v. Railroad, 40 Mo. 151.] If the court ought to have given the instruction in the form in which it was presented, then the modification was error of which the contestants had the right to complain. If it ought not to have been given in that form, there was no error in refusing it, and whatever the court may -have after-wards done in the way of patching it up could not have made such action erroneous. Should the court have refused the instruction in the form in which it was asked? The appellants, insisting on a negative answer to this question, point out the fact that it is substantially copied from an instruction which was well considered and approved by this court in Mowry v. Norman, 223 Mo. 463, 472. The question upon that instruction as upon this was whether the burden was upon the proponent of the will to establish the testamentary capacity of the testator by “a preponderance of all the evidence,” anc[ †]16 e0urt held that it was, and to the general principle so announced we still adhere. In the subsequent case of Gribony v. Foster, 230 Mo. 106, 131, we said: “In Sehr v. Lindemann, 153 Mo. l. c. 288, it was expressly ruled that upon making out a prima-facie case by the proponents of the will, it then devolved upon the contestants to establish inT competency or undue influence. ’ ’ The use of so strong a word as “establish” in that connection suggested that, in the opinion of the court, there might be some point at which the burden of proof would change from one side to the other, so that, when the proponent had lifted his “burden of proof” to the height of a “primafacie case,” the contestant must come in and elevate it still higher before he could defeat the probate of the will. In Bensberg v. Washington University, 251 Mo. 644, our attention was again directed to the same subject, and we pointed out that the “prima-facie case” arose upon the introduction of the evidence required by the statute to be introduced to probate the will. But, as we said in that case, when the testimony is all in for both proponent and contestant, it must be considered together and the question remains for the jury whether the proponent has sustained the burden of proving the execution of the will, including the fact of testamentary capacity at the time it was signed and published. How this burden may be borne in the first instance is fixed by the statute, but when the statutory evidence is not forthcoming, or its effect has been weakened by the contestant until it no longer preponderates, the statute still suggests the only rule which can meet the exigencies of the trial. It provides that the evidence must be sufficient to prove the will on a trial at common law. We have already had occasion to say (Bensberg v. Washington University, supra) and now take occasion to repeat that these evidential rules have their foundation laid deep in the policy of the common law as well as in the legislative policy of this State to permit, to the fullest extent consistent with the public welfare, the testamentary disposition of property, and in the corresponding obligation to protect the individual acting upon such permission, by the application of the cautious and safe methods of the common law to inquiries which may result from any attempt to use the counterfeit presentment of such action in furtherance of wrong.

While we think that the appellants were entitled to an instruction telling the jury in some form easily understood that the burden rested upon the defendants to prove the testamentary capacity of the testator by a preponderance of the evidence, there is, in our opinion, a vice in the one we are considering which fully justified the court in withholding it from the jury. It told them with reference to those things which are generally considered the mental requisites of testamentary capacity, that “unless the defendants have shown by a preponderance of evidence that he did possess all of these requisites, you should find this issue in the negative, and against the will. ’ ’ The merit of this feature of the instruction consists in the fact that it was substantially copied from one that was expressly approved by this court in Mowry v. Norman, which we have already cited. The real difference is, that while in that ease it was perfectly proper, in this case it is improper and misleading; for statements relating to these very matters tending strongly to prove the capacity of the testator, and which were no doubt highly satisfactory to the proponents of the will, and were presented by them to' the jury with greater confidence for that reason, occurred in the testimony of the contestants’ witness. Were this an ordinary suit, in which the burden of proof rested throughout upon the plaintiff, and the defendant had introduced no evidence, but had depended on that of the plaintiff, an instruction of this character would have been at least misleading; and the same construction is called for in this case. This court has recognized the difference in the effect of the same facts depending upon whether they are proven by the evidence of one party or the other (White v. Railroad, 250 Mo. 476, and cases cited), and what is more natural than that a jury when told that the defendant, to recover, must have shown a fact by a preponderance of evidence, should take the court at its word, and not be satisfied when the same fact has been shown by the plaintiff? The trial court took this view, and we see iu> error in its refusal of the instruction as asked and no error is suggested in it as it was finally given.

II. The proponent having shown that the will was executed by the testator with all the formalities prescribed by law while the testator was of sound mind, it will then be presumed that it was his free and voluntary act; for the ability to consider and determine is a fundamental characteristic of mental soundness. If the the contestant then claims that the instrument proposed does not represent the will of the testator, but the will of another, substituted by fraud or by force either physical or intellectual, the burden lies upon him to prove it. In this case the contestant has undertaken to sustain this burden principally upon a foundation consisting of a confidential relation of Mr. Phelan, the husband of one .of the principal beneficiaries, toward the testator, and the fact that Mrs. Phelan received perhaps twice as much as either of his children.

It is true that the law will not permit one to take advantage of those intimate relations of trust and confidence which it recognizes between the natural or lawful adviser and the advised, or the trustee and his beneficiary, to use the influence incident to his dominant position for the purpose of private gain. So jealous is it in this respect that in such cases undue influence will frequently be presumed unless the act can be fully accounted for by another and adequate motive. But the law does not look with disfavor on the loving performance of those filial offices which, while not exacted by it, are the real rewards of parental solicitude and sacrifice ; nor does it discourage the substantial recognition of those affectionate services. These principles apply as well to relations having their origin in marriage as in consanguinity; and confidential relations of this character may often explain why the testator has desired to bestow generously upon the beneficiary .of his will. [Lamb v. Lippineott, 115 Mich. 611.] In this case the testator was old, and greatly weakened in mind as well as in body. While this should make us more careful in our scrutiny of the influences that surrounded him and were operative in suggesting the disposition he should make of his property, there is nothing in it to justify the courts in confining him more closely to conventional methods in its distribution than they would were he in the full vigor of his prime. Once given the testamentary capacity, his weakness is only to be considered as an element calculated to contribute to the success of any improper influence shown to have been brought to bear upon him.

In the light of these principles, we have carefully examined this record for evidence more consistent with the theory that the will of Mr. Butler was ^le product, to any extent, of improper or “undue” influence operating upon him at the time it was made, than with the theory that it was the product of his own volition, unaffected by any in-' fluence from which the law should protect him. We have considered that he was in a condition to be readily susceptible to such influences; that his provision for the Phelans was very large in proportion to the amounts bestowed upon his other heirs; that they occupied & position with relation to him and his business as intimate and commanding as Mr. Phelan could have intended, under the circumstances, to express by the statement that he was his legal adviser and business manager; and that they had never, like his other children, left the neighborhood in which he resided, and were ready and willing to come at his call with advice and assistance. While some of these things would, under normal conditions have a tendency to explain the disposition of Mr. Butler to deal generously by them, they might also give them vantage ground from which to work upon his weakness; but we have failed to find anything in the evidence tending to show that they used any such advantage, or solicited or advised, directly or indirectly, any disposition contained in the will. It is true that Mr. Phelan was present.at its making, and, when requested, .rendered valuable assistance in describing the land, for which service he was peculiarly equipped, but- Mr. Butler had excellent independent legal advice and assistance in charge of the matter, and it was the province of his lawyer to direct and utilize the activities of Mr. Phelan, which he evidently did. The only instance in evidence in which the Phelans or either of them subjected themselves to criticism in connection with Mr. Butler’s testamentary activities was at the time of the March incident, the latter part of February or first part of March, after the making of the -will in controversy. He then evidently had a desire to change the will in favor of his son Martin, or “Marty,” as he affectionately called him. He had, at the suggestion of Mr. March, procured the presence of Mr. Phelan to assist in describing the lands in the new will. Mr. March had copied the.old will down to the place where it mentioned Martin, when the old .gentleman said, “I want all west of the creek, Lick Fork Creek, to go to Marty.” The will in controversy had already devised all that part of the northwest quarter of section seventeen lying east of Perche Creek to Mrs. Phelan, and the change proposed would give a large portion of that quarter section to Martin. Mr. Phelan immediately took notice, and said: “Uncle Johnnie, don’t you know that there is ten acres that does not lie due west of Lick Fork Creek, there is ten acres that is west of Perche.” It was apparently an innocent remark, but “it just appeared to kind of unnerve him. He got all out .of sorts about it. He just said, ‘ Squire, you can burn up what you have written there, and I will get Mr. Tom Carter back here, and have him fix this up.’ ” Mr. March put the papers in the stove, and after reflecting a little while Mr. Butler said: “No, that won’t do. I may pass away before Tom Carter gets back here, and you just let me rest two or three days and I will call y.ou again, and we will fix it up.”

That Mr. Phelan, on this occasion, interfered in his own behalf there can be no doubt; that Mr. Butler desired to give to the son who still lingered in his heart as the child “Marty,” the particular parcel of land that lay in the triangle between Perche Creek and Lick Fork is plain; and that at the first intimation that Mr. Phelan wa.s taking notice of his newly formed purpose, he should have become so disturbed as to be unable to pi'oceed under the conditions tha,t then surrounded him, is so suggestive that, had it occurred at the time of or before the preparation of the will now before ns, we would have no hesitation in coming to the conclusion that it should have been submitted to the jury upon the issue of undue influence. But, as we have already seen, it is not the influence that the law denounces, for that may grow out of the very virtues which it most commends, but it is the improper use of that influence. The circumstance just related not only suggested the existence of such an influence, but also had a tendency to suggest that it was operative in preventing a change in the will. When we attempt, however, to apply it to the execution of this will some two or three months before, the circumstance, standing alone as it does, loses its evidential character, and sinks to the level of mere suspicion. We do not think the court could have done otherwise than it did in withdrawing the issue of undue influence from the jury.

IY. The only remaining question relates to the assignment that “the court erred in rejeeting the evidence of Sebastian as to the conversation with Butler at the tune he consulted him about writing the will. ’ ’

As a matter of fact Mr. Sebastian was permitted to testify with considerable freedom as to his conversation with Mr. Butler in July or August, 1905, in which, among other things, the writing of a will for Mr. Butler was mentioned. He said that Mr. Butler was not clear enough about what he wanted done so that he could understand it, and did not seem to be clearly of any opinion as to what he wanted; that physically he was very weak and mentally wias not very clear, so that his statements in regard to what he wanted to do were conflicting and confused; that from all the conversation that they had at that time both of a social nature and in regard to business he did not think Mr. Butler’s mental condition was such at the time that it would have been proper for him to have a will made. At the time he made this last statement the witness was asked what the conversations were upon which he based this statement, and the court said, without any objection being made, “if he was acting as attorney, he cannot state the communications made to him.” No exception was taken to this statement, and the witness was excused without answering. The circumstance impresses us that the contestants, having got what they wanted from the witness, deliberately refrained from pressing the matter further by exceptions or otherwise, and this impression is strengthened by the consideration that further pressure might weaken the favorable result already attained. Idealizing, however, that the contestants and their attorneys may disagree with our conclusion upon that point we will examine the exceptions taken by them in the examination of Mr. Sebastian, for the purpose of judging whether the action of the court was erroneous in the sense charged in the assignment of error we have just quoted.

The first exception of this character was to the .remark of the court: “I have not passed on the other question. Objections sustained.” With a little aid from an active imagination we may infer that this remark applied to the following statement which had been previously made by an attorney of the defendants: “We object to any conversation between attorney and client. ” It was not limited to any question that sought information about, any statement made by Mr. Butler connected' with professional matters under discussion. It assumed the relationship of attorney and client, and covered like a blanket anything they might have said upon any subject. It reached no question in the case. Nor did the court, in sustaining the objections to questions asked Mr. Sebastian as to his reasons for not writing the will that day, indicate that it intended to exclude any statement made in the conversation between the witness and his alleged client. This objection was made and should have been sustained on the ground that the testimony was “immaterial.” The processes of Mr. Sebastian’s mind was not the matter at issue. The court was trying the condition of Mr. Butler’s mind. The same suggestion applies to the action of the court in striking out the statement of the witness that he thought best not to write the will. None of these matters involved the admissibility of any statement made by Mr. Butler in the conversation with Mr. Sebastian, and the action of the court upon them was irrelevant to that question.

This view makes it unnecessary to express an opinion as to the confidential character of the talk between Mr. Butler and Mr. Sebastian about writing a will. If the plaintiffs had any intention to preserve this question for the consideration of the appellate court they abandoned it at the time when an exception would have been effective for that purpose; thus retaining all the advantages accruing to them from the general statements of the witness, and avoiding the danger of weakening them by a disclosure of the language used. There was no prejudicial error shown in the action of the court in this respect.

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

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion .of the court.

All of the judges concur.


author: BLAIR. C.

text:
    MANERVA J. DAVIDSON et al. v. LACLEDE LAND AND IMPROVEMENT COMPANY, Appellant.
    Division One,
    December 6, 1913.
    1. AFFIDAVIT FOR APPEAL: No Signature to Jurat. The fact that there is no signature to the jurat of an affidavit for appeal is not fatal when it appears that the clerk personally-entered the minutes of the filing of the affidavit, the allowance of the appeal, etc., and the appellant’s attorney testified positively that he signed and was sworn to the affidavit and filed it with the clerk.
    2. PLEADING: Admissions. The failure of a petition to allege the incorporation of defendant will be cured by an admission thereof in the answer.
    3. -: Suit to Quiet Title: Petition. Held, that the allegations of the petition in a suit to quiet title do not disclose that defendant claims through a fatally defective record and that accordingly the petition states a good cause of action.
    4. ORDER OF PUBLICATION: Tax Suit: Not Spread of Record: Collateral Attack. Where the petition in a tax suit alleged the nonresidence of the defendants, and there is no pretense that the clerk did not issue a proper order of publication or that there was any defect in the time or place of its publication; where too the record shows that the plaintiff filed proof of publication and the judgment recites that all the defendants save one, although served with legal process, made default, the judgment cannot be attacked collaterally on the ground that the order of publication was not spread of record by the clerk.
    5. TAX SALE: Sheriff’s Deed: Recitals: Conveyance of Tract “Last Described.” A tax deed recites that judgment was rendered for taxes due upon
    “Tract No. Addition or Town. Sec. Twp. R.
    1 Sy2 of N E % 33 32 2 W
    W% 34
    E y2 36”
    That the taxes and interest due upon said real estate were: “Tract No. 1, $11.42,” and also for costs declared to be a lien upon “the above described tracts.” Then follows the recitation that by the judgment the total was made a lien, and sale “of said real estate or so much thereof as may be necessary to satisfy” the judgment was ordered. Finally the deed says, after further recitals, that “the sheriff exposed for sale the above described real estate and L being the highest bidder for the following described real estate, viz.: .The south half of the northeast quarter of section 33. The west half of section 34 and east half of section 36, township 32, range 2 west, for $37.62, the said last above described tract was stricken off and sold to the said L.” Held, that the deed conveyed only the land in section 36.
    Appeal from Reynolds Circuit Court. — Eon. Joseph J. Williams, Judge.
    Affirmed.

      J. B. Darnel for appellant.
    (1) The amended petition upon which the ease was tried fails to state facts snfficent to constitute a •cause of action. Turner v. Hunter, 225 Mo. 71; Verden v. St. Louis, 131 Mo. 112. (2) The petition will not support a judgment for lack of any averment therein of the capacity of the defendant to be sued. The' burden was on the respondents, to plead such capacity. Railroad v. Express Co., 145 Mo. App. 375; 5 Ency. PI. & P.r. 73. (3) The judgment of the •court should have been for the appellant, since it was. admitted by the pleadings and shown by the proof that if the respondents ever had a cause of action against the appellant it accrued to them more than ten years before the institution of this suit. R. S. 1909, sec. 18791; Haarstick v. Gabriel, 200 Mo. 237; Summers v. Abernathy, 234 Mo. 167. (4) There is no merit in the contention of the respondents that the court acquired no jurisdiction of Joshua P. Hancock in the tax suit. Childers v. Schantz, 120 Mo. 305'; 32 Cyc. 483; In re James, 99 Cal. 374; Horn v. Bank, 125 Ind. 381; Smith v. Valentine, 19 Minn. 452; Pink v. "Wallace, 109 N. T. App. Div. 718; Evans v. Weinstein, 124 App. Div. 316. (5) The land involved in this suit was sold by the sheriff, and the recitations in the deed clearly show that fact notwithstanding the fact that the clerk who wrote the deed failed to add the letter “s” after the word “tract” in the printed form on which the deed was written. Cooms v. Crabtree, 105 Mo. 298; Miller v. Keaton, 236 Mo. 706. (6)- The failure of the clerk who wrote the sheriff’s deed to •ditto the township and range in the second and third lines in the deed where it recites the judgment on which the deed is based did not affect the- validity of the d.eed. The judgment is referred to in the deed, was ■offered in evidence in this case and contains complete description. This would cure the error in the deed if it were otherwise "fatal. Miller v. Keaton, 236 Mo. 707; Jones v. Drislrill, 94 Mo. 190.

      R. I. January, Arthur T. Brewster and 8am M. Brewster. for respondents.
    (1) The sheriff’s deed, by virtue of which appellants claim title, fails to recite a judgment for taxes against the land in suit. Sec. 2392, R. S. 1879'; Guffey v. O’Riley, 88 Mo. 418. (2) “Was the land involved in this suit sold by the sheriff?” No, the same was never stricken off and sold. De Page v. Douglas, 234 Mo. 78; Sazenbacher v. Santhuff, 220-Mo. 283. (3) The sheriff’s deed in reciting the judgment on which it is based affirmatively shows upon its face that no taxes were found to be due on the land in suit. Guffey v. O1’Riley, 88 Mo. 418. (4) The failure of the clerk of the circuit court to make and enter of record an order of publication in the tax proceedings deprived the-court of jurisdiction of the nonresident defendants.. Cummings v. Brown, 181 Mo. 718; Kelly v. Murdaugh,. 184 Mo. 377; Otis v. Eperson, 88 Mo. 131; Sec. 627, R.. S. 1879; Dick v. Foraker, 155 U. S. 404; Clay v. Dilby,. 72 Ark. 101; Article in 69 C. L. J. 443. (5) By the-court finding in the tax suit judgment that the Ozark Land Company was the owner of the land, in effect eliminated Joshua P. Hancock as a defendant and his interest in the land never passed by the sale thereunder. Rothenberger v. Garrett, 224 Mo. 201; Stuart v. Ramsey, 196 Mo. 404. (6) This is .a suit to quiet title under the broad provisions of Sec. 2535, R. S.. 1909, and states a cause of action under said section. Huff v. Land Co., 157 Mo. 65; Spore v. Land Co., 186 Mo. 656; Stone v. Perkins, 217 Mo. 586; Hudson v. Wright, 204 Mo. 412. (7) A defective petition may be cured by admissions in the answer. Gorth v. Cold-well, 72 Mo. 629; T. M. C. A. v. Dubach, 82 Mo. 475? Hughes v. Carson, 90 Mo. 402; Donaldson v. County, 98 Mo. 166. (8) Actions to quiet title under Sec. 2535, R. S. 1909, are not barred by the ten-year Statute of Limitations where there is no actual possession. Stone v. Perkins, 217 Mo. 599; Brewster v. Land & Imp. Co., 247 Mo. 223.
   BLAIR. C.

This is an appeal from a judgment of the Reynolds Circuit Court setting aside and cancelling a tax deed and quieting in respondents the title, to the west half’ of section 34, township 32, range 2 west, in Reynolds county.

In 1859 the land in question was patented to Joshua P. Hancock. Respondents are his widow and heirs, who claim a one-half interest, having conveyed a like interest to the remaining respondent, January.. Hancock died intestate in 1889, owning the land involved here unless his title was devested by the proceedings culminating in the tax deed assailed.

As grounds for canceling the tax deed the petition alleges, among other things, (1) that in the tax suit Joshua P. Hancock was neither served with summons nor notified by publication; (2) that the judg-ment rendered included the tract in question and two others and was rendered against the whole; and (3) that the land involved was never stricken off and sold to appellant.

Respondents tender a return of all proper sums found due appellant and pray ithe court to “try, ascertain and determine the estate, title and interest of plaintiffs and defendants, respectively,” in the land in question; that the tax deed be set aside, the interests of the respective parties adjudged and for general relief.

Appellant, by its answer, admitted its incorporation and claim of title, denied the other allegations of the petition and pleaded (the bar of the ten-year Statute of Limitation..

On the trial it was admitted that Joshua F. Hancock entered the land in question and is the common source of title; that respondents, other than R. I. January, are the sole heirs of Joshua F.' Hancock and have executed deeds to January .conveying to him one-half of whatever interest they took, as such heirs, in the lands involved.

Respondents called a witness whose testimony tended to show no order of publication in the tax suit had ever been spread of record. Appellant, over objections, offered the tax deed. Respondents then offered the pleadings and judgment in the tax suit.

I. A motion to dismiss the appeal has been filed. The ground of the motion is that the affidavit for appeal was not sworn to. This rests.upon the fact that the jurat is not signed by the clerk or other officer. Notice of the motion was given January 14, 1913, the case being set for argument here January 20, 1913. The record of the trial court shows the filing of an affidavit for appeal and the granting thereon of an appeal to this court, December 17, 1909. Depositions have been taken and are on file which disclose that the circuit clerk personally entered the minutes of the filing of the affidavit for appeal, the allowance of the appeal, etc., hut he testifies he does not know why the jurat was unsigned. He has no direct recollection of the happenings at' ithe time but testifies the orders were taken in this and several other cases during the hurry of the closing hours of the term. By deposition appellant’s attorney testifies positively he signed and was sworn to the affidavit in this ease and in another ait the same time and filed both affidavits with the clerk.

There is nothing, except the absence of the clerk’s signature, tending to overthrow this testimony and the tendency of the record entries to corroborate it.

The clerk personally made the minnte showing the filing of an affidavit for appeal and the following minnte of the court’s order, based thereon, granting an appeal. He had served three years as clerk and it is presumed.he knew an affidavit for appeal must be sworn to. He received and filed this paper as such •an affidavit. This and the court’s action in granting the appeal are to be considered in connection with the evidence mentioned.

Under the rule approved in Clark v. Railroad, 242 Mo. l. c. 589, 593, it sufficiently appears the afín davit was in fact sworn to and it will be treated as sworn to, there being no necessity of going through the now “bare .and meaningless formality” of literally inserting the clerk’s name above his official designation as it now appears in the affidavit. [Darrier v. Darrier, 58 Mo. l. c. 234.]

II. The sufficiency of the petition is challenged in this court.

(a) Whatever the effect the failure of the petition to allege appellant’s incorporation otherwise might have been, "the answer expressiy admits appellant is a corporation and eliminates the question.

(b) The allegations of the petition do not disclose that appellant claims alone through a fatally defective record, and, consequently, the rule stated in Turner v. Hunter, 225 Mo. l. c. 82, is inapplicable. In that case the petition alleged no judgment had ever been rendered in the tax suit, and Judges Woodson and Yalliant were of the opinion this allegation .rendered the petition fatally insufficient. There is no such allegation in the petition in this case.

In view of this the question whether the rule mentioned could, in any event, apply to a petition con-taming allegations that title is in plaintiff and that, defendant claims some interest and praying the court to ascertain and determine the respective interests of (the parties (Sec. 2535, R. S. 1909; Spore v. Land Co., 186 Mo. 656) need not be discussed.

III. It is contended the judgment in the tax suit was and is void because the order of pub-^cation was not spread of record by the clerk. The petition in the case alleged p[le nonresidence of the defendants, including Joshua F. Hancock, and there is no pretense the clerk did not actually issue an order of publication in proper manner and form, and it is not contended there was any error or defect in the time or place of its publication.

The record in the case shows that on November 27, 1886, “plaintiff, by attorney and leave of court, files proof of publication of notice to nonresident defendants,” and the judgment itself recites all the defendants save the Ozark Land Company, “although served with legal process herein, come not, but make default.”

In these circumstances plaintiffs cannot be heard, in this proceeding, to question the sufficiency of the notice by publication on the ground mentioned. [Brawley v. Ranney, 67 Mo. l. c. 283.] The Missouri cases cited by respondents (Cummings v. Brown, 181 Mo. 711; Kelly v. Murdagh, 184 Mo. 377; Otis v. Epperson, 88 Mo. 131) do not decide the question presented here. In the last there was a failure to designate the paper in which the order was to be published, and the others discussed orders made by the court on a non est return. In cases like these last the order is made, if at all, by the court and must be based upon a finding by the court that the defendant cannot be served with process. The observation of the court in Cummings v. Brown, supra, that an order so made must be proved by the record falls far short of a holding that the failure to record an order of publication against nonresidents, made on an allegation or affidavit of nonresidence, renders tbe judgment absolutely void. The distinction between the statutes is pointed out in the cases cited.

The general statute (Sec. 627, R. S. 1909) requiring the clerk to make a record of all orders, decrees and proceedings was in force at tbe time the case of Brawley v. Ranney, supra, was decided, and the clerk’s failure to write up his records in accordance with his minutes could hardly be said to oust the court of jurisdiction in any case. Such must be the effect of such a failure if respondents’ present contention is to be upheld.

Cases upon statutes providing for the publication of copies of the record of orders of publication and statutes mandatorily requiring the recording of such orders prior to publication thereof are not applicable to the question here.

The following decisions further support the conclusion reached: Smith v. Valentine, 19 Minn. l. c. 460, 461; Fink v. Wallach, 109 App. Div. l. c. 720, 721; In re James, 99 Cal. l. c. 377 et seq.

IV. The tax deed recites that the circuit court of Reynolds County rendered its judgment 1° the use of the collector and against certain named persons for eleven dollars for taxes and interest “found to be due and unpaid upon the following described real estate, viz:

“Pts. Secs. Lt. or Block

Tract No. Addition or Town, Sec. Twp. R.

1 S-% of N SH4 33 32- 2-W

w-y2 34

E-ya 36

“And that the taxes and interest found due upon said real estate, and the years for which the same were assessed are upon each of the above described tracts, as follows, viz.:

Years for which taxes

“Tract No. were found due Tax. Int. Tl.

1 1884 9.36 2.06 11.42

“And also certain costs which have been taxed at the sum of sixteen dollars and sixty cents, which said several sums of taxes, interest and costs were declared by said court to be a lien in favor of the State of Mis-' souri upon the above described tracts of real estate.” Then follows the recitation that by the judgment the total was made a lien, and sale “of said real estate or so much thereof as may be necessary to satisfy” the judgment was ordered and special execution issued ; that publication was made and that the sheriff at the proper time and place, at public auction, exposed for sale the above described real estate, and Laclede Land and Improvement Company being the highest bidder for the following described real estate, viz.: ‘ ‘ The south half of the northeast quarter of section thirty-three. The west half of section thirty-four and east half of section thirty-six, township thirty-two, range 2 west, for thirty-seven and 62/100 dollars; the said last above described tract was stricken off and sold to the said Laclede Land and Improvement Company for the sum bid therefor by it as above set forth. ’ ’

The concluding paragraph of the deed corresponds in form to that set out and discussed in DePaige v. Douglas, 234 Mo. l. c. 83. In that case each parcel of land was, in the first instance, separately given, a number in the deed, as a tract, while in this» case the deed first describes the land as set forth above. It is insisted that “Tract No. 1” included all the land described and that subsequent reference to the “last above described tract” therefore was to the whole.

„ The deed, however, recites that the judgment was declared a lien “upon the above described tracts,” and it therefore may be said to appear, in view of this recital, that the sheriff had in mind that he was dealing with and offering for sale more than one tract. Having used the plural term in the deed, it is reasonable to conclude he used the singular, and the corresponding verb, advisedly when he stated in the deed that the “last above described tract ivas stricken •off and sold,” etc.

In the case of Sanzenbacher v. Santhuff, 220 Mo. 274, the deed discussed was exactly like that in this case in the respects above mentioned save the words “Tract No. 1” did not appear in connection with either parcel therein described. The ruling in that case was approved .and relied upon in the DePaig'eDouglas case. Nearly all that, is said in this last mentioned.case is applicable in this, and under the rule'announced therein and in the Santhuff case it follows that the tax deed in this case conveyed, if anything, only the land in section thirty-six and did not affect the land now in suit.

The certified copy of the record.of the tax deed, tendered by appellant cannot be considered, not being In the record and its consideration not being agreed to by respondents. This fact and the further fact that the record does not otherwise show what recitals In the tax deed are written and what are printed, as well as the fact that the tax bill in .evidence shows that the parcels were separately assessed, renders inapplicable what was said by Division Two of this court in Miller v. Keaton, 236 Mo. l. c. 706, 707.

It is suggested that the decision in Coombs v. Crabtree, 105 Mo. 292, was overlooked by this court In the cases of DePaige v. Douglas, supra, and Sanzenbacher v. Santhuff, supra, is directly in point and ought to result in the reversal of this judgment. In that case it was said: There is nothing in the objec tion “founded upon the fact that the letter s is omitted from the word tract in the recital of the sale of the-several tracts described in the deed to Ford; it appearing plainly .on the face of the deed that he was the-highest bidder for all of the tracts described in the deed* at the price therein stated, and that for that price all the described real estate was sold and by the 'sheriff' conveyed to him, in which description was included the land in controversy.”

There is nothing in this language which necessarily conflicts with the cases cited above, but counsel call to our attention the fact that the record in that case shows that the tax deed in judgment was, in the pertinent recitals, like that discussed in DePaige v. Douglas, supra. In one particular, however, there is a difference in the conclusions reached. In Coombs v. Crabtree the land was all in one section, and the description to which the court held the words “the last above described tract” referred to was “the east half of the northeast quarter and the east half of' the southeast quarter and the east half of the southwest quarter and the east half of the northwest quarter and the southwest quarter of the northwest quarter of section six (6), township thirty-three (33) of’ range thirty-two (32).”

The court had before it a previous decision (Sparks v. State Auditor, 57 Mo. 58) in which it had been announced that the statute then (and now) in-force (Sec. 11372, R. S. 1909) required all tracts in-the same section belonging to the same owner to be-assessed as one tract and that “the provision is specific and requires them all to be assessed as one tract,, and they are declared by law to be but one tract, so-far as any and all the acts of the revenue officers are concerned.” It may be the court had in mind this decision in reaching the conclusion it did in theCoombs-Crabtree case.

In this case and in the Sanzenbacher-Santhuff and PePaige-Douglas cases the parcels described were in different sections. It might be argued that the question in the Coombs-Crabtree case was not what the statute meant but what the sheriff meant in the language he employed in his deed and that the sheriff does not fall within the class designated in Sparks v. State Auditor, supra, as “revenue officers;” but whether these arguments are sound and whether the description in the Coombs-Crabtree case and the fact the land there involved was in a single section are sufficient to dispel the doubt raised by the reference in the deed to the “last above described tract” are questions better postponed, at least, until a like record presents them for decision.

V. There is no evidence of possession, and the rule approved in Brewster v. Laclede Land & Improvement Company, 247 Mo. 223, might be applied. In view, however, of the fact that there is neither allegation nor proof as to when defendant first set up a claim to the land in suit and the fact that the recording of the deed could not be considered as the assertion of title to land it did not include or convey, the question as to the applicability of the Statute of Limitation, on that account, is not in the case.

There are other questions discussed in the briefs but they become unimportant in view of the conclusion reached in the preceding paragraph. The judgment is affirmed.

Brown, C:, concurs.

PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All of the judges concur.