source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    WILLIAM A. WILCOX et al., Appellants, v. J. B. PHILLIPS et al.
    Division One,
    July 14, 1914.
    1. RES ADJUDICATA: Former Appeal: Reversal With Directions. Where the Supreme Court on an appeal from a judgment in favor of plaintiffs in ejectment reversed the judgment and remanded the caiise “to be proceeded with in accordance with this opinion,” the trial, court has authority* to try the case again, and is not restricted to entering judgment for defendants, whether an amended petition (adding a count in equity for reformation of a deed) be filed or not, and if filed whether filed with or without objection, unless such course is necessarily inhibited by . the opinion. [Following Mangold v. Bacon, 237 Mo. 1. c. 512.]
    2. -: -: -: Not Raised “in Trial Court. Unless defendants, after a reversal of a judgment for plaintiffs and a remanding of the cause “to be proceeded with in accordance with this opinion,” move for a judgment in the trial. court without a retrial, they cannot he heard to contend on the second appeal that such count had no authority to try the case again, but was restricted to entering judgment for them.
    3. TAX SUIT: Notice: Due Process of Law: Deceased Defendant. A judgment in a tax suit, against a record and actual owner who had been dead fifteen years at the time the suit was brought, cannot be held to be based on due process of law against herr heirs, for they were not served or notified, and absent notice there is no due process of law.
    4. —-: Personal Service on Record Owner: No Record of Patent in County. Where the tract book, duly certified and recorded, showed a certain person was the entryman of land and he was personally served in the tax suit and made default, when in fact he had assigned his certificate of location to another defendant in the tax suit who was not served, and to him had been issued a patent duly recorded in the General ■ Land Office at Washington but not in the county where the land lies, and the title passed from him by a recorded deed to another defendant who was served by publication and who was dead at the time the tax suit was brought, the purchasers at the tax sale acquired only the interests of the entryman (which was nothing), and did not acquire the title of the actual owners, the legal heirs of the deceased defendant, and nothing in the statutes would give the judgment against the entry-man (even though he be allowed to be an apparent record owner) the legal effect of depriving the true owners (who had no day in court) of their property.
    5. -: Record of Patent. To pass title or impart notice neither a patent from the United States nor a patent from the State itself needs to be recorded in the county in which the land lies. A record of a patent in the General Land Office at Washington imparts notice, since the law requires that patent to be recorded before it is issued.
    6. -: Sale: Notice of Ownership: General Principles Apply. It is a mistake to suppose that the taxation statutes proceed'on the theory that the landowner loses Ms land in pursuance to a tax suit and sale on principles different from those on which landowners lose their lands on general or special judgments followed by sheriff’s deeds. The widespread notion that there is something peculiar about tax sales and" tax deeds that. takes them out of the generally recognized principles relating to notice of ownership in another is mischievous and unauthorized by statute.
    7. -: -: Actual or Constructive Notice of Ownership. Even though the tax suit is brought against the apparent record owner, a purchaser at a sheriff’s sale gets no title where he has notice of an outstanding title in another, either (1) by the record of a previously unrecorded deed during the pendency of the tax suit, or (2) by such record after judgment and before sale, or (3) where he gets such notice dehors ■ the deed record. In all such cases the purchaser buys subject to the outstanding title; and actual notice that the defendant in the tax suit (through the apparent record owner) is not the real owner, is the same as would be a recorded deed from him to the true owner. [Following Stuart v. Ramsey, 196 Mo. 1. c. 416.]
    8. TAX DEED: Notice of Recitals: That Apparent Record Owner is Not Actual Owner. Every recital of a fact affecting the title contained in his deed is presumed to be known by the purchaser at the tax sale, and he is affected with notice thereof in the same manner and to the same extent as though he had actual knowledge. For instance, if his deed purports to convey the interest of a certain person named as a defendant in the tax suit, he is charged with notice that by an unrecorded deed the 'title has passed to that person, and he takes subject to that deed, and if the deed is recorded and such person was dead at the time the tax suit was brought by publication, and his heirs or devisees were not made parties, he takes nothing. .
    9. -: -: -: Recitals in Judgment and Other Records. The consolidated tax book in the column headed “owner,” named the entryman, the patentee, defendant’s mother and “her heirs” as owners of the land; and the suit for taxes, brought by publication, names those three as defendants, but did not name her heirs. At that time the defendant’s mother or her heirs had paid the taxes for fourteen years preceding the last delinquent year and the county records showed a chain of title from the patentee to defendant’s mother, but showed no record of the patent, but the tract book, duly certified and on file, showed the land duly entered by the entryman, who had assigned to the patentee and was personally served and made default. The petition alleged the entryman, the patentee and defendant’s mother were the owners of the land, and the judgment recited that the allegations of the petition were found to be true. Held, that, assuming for the purposes of the case (though not allowing) that the entryman was the apparent record owner, the judgment found that defendants’ mother was the owner, and similar recitals to those allegations in the execution, advertisement and purchaser’s deed, were of the same legal intendment, and all amounted to a notice to the purchaser that she was the owner and she being dead when the suit was brought the purchaser took nothing. [Following Adams v. Gossom, 228 Mo. 1. c. 582 et seq., and overruling so much of Wilcox v. Phillips, 199 Mo. 288, as conflicts with the decision.]
    10. -: Township Organization; Unconstitutional Law; Collateral Attack. The tax deed being held to be void on other grounds, such deep-going questions as whether the tax deed was void for that the law creating township organization, in pursuance to which the suit was brought and the judgment for taxes was rendered, was, after the suit was brought, declared unconstitutional, and whether the judgment for taxes was res adjudioata, and whether the attack thereon is collateral, are not decided, since their decision is not necessary, and such far-reaching questions should be decided only in a case where they are decisive.

      11. -: Equitable Interference: Removing Void Tax Deed. Even though the tax deed and judgment he void on their face, a second count in the petition to remove the deed as a cloud . on the title, the other count being in ejectment, will be allowed.
    12. -: Constructive Notice: Recorded Deed to Stranger. Purchasers of land and landowners are not obliged to take constructive notice of the record of deeds by strangers to their title conveying the land to other strangers to their title. But that is of no consequence where the recitals in the purchaser’s deed impart notice to him.
    13. -: Allowance for Taxes Paid and Rents. Purchasers at a void tax -sale are to be allowed for taxes paid by them since their purchase, and they are also chargeable for rents if in possession under their deed.
    Appeal from Putnam Circuit Court. — Hon. George W. Wcmamaher, Judge.
    Reversed and remanded {with directions).

      D. M. Wilson, J. W. Clapp, A. W. Mullins and G. W. Haverfield for appellants.
    (1) "Where by inadvertence principles of law have been incorrectly declared on the first appeal, or where later decisions have otherwise and correctly declared the law, this court will re-examine and correct its errors on the second appeal in the same case. Mangold v. Bacon, 237 Mo. 496; Timber Co. v. Railroad, 242 Mo. 11. (2) This court will review its own decisions on second appeal, where no hardship would result to innocent parties. The appellate courts are always open, even upon the second appeal, for the correction of errors and the administration of justice. Plamilton v. Marks, 63 Mo. 167; Bird v. Sellers, 122 Mo. 23; Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beckwith, 140 Mo. 369; Baker v. Railroad, 147 Mo. 152; Bealey v. Smith, 158 Mo. 522; Williams v. Butterfield, 214 Mo. 429; Bank y. Douglass Co., 146 Mo. 53. (3) The mandate of this court directing that further proceedings be held in this case in accordance with the opinion delivered, did not change in any way the nsnal course of proceeding in the case as to any new matters introduced into the record. Sheppard v. Wagner, 240 Mo. 409; McMurray v. Railroad, 161 Mo. App. 140. (4) The facts being essentially different from those on the former appeal, this court will not be bound by its former opinion. Crispen v. ITannovan, 86 Mo. 168; Fuchs v. St. Louis, 167 Mo. 653; May v. Crawford, 150 Mo. 525; Crumley v. Webb, 48 Mo. 562. (5) The Township Organization Law of 1879 (Laws 1879, p. 218) included in the Revisions of 1879 (R. S. 1879, ch. 162), 1889 (R. S. 1889, ch. 162), and 1899 (R. S. 1899, ch. 168), was unconstitutional. State ex rel. v. Gibson, 195 Mo. 251. (6) An act adjudged unconstitutional is as if it had never been. Rights cannot be built up under it and it constitutes a protection to no one who has acted under it. Cooley’s Constitutional Limitations (5 Ed'.), p. 224. (7) The township assessor who assessed this land, was wholly without authority to make the assessment and his assessment was null and void. A valid assessment is an essential prerequisite to the lawful exercise of the power of taxation. It is a necessary condition of an effectual transfer of the title. Abbott v. Lindenbower, 42 Mo. 168; State ex rel. v. Railroad, 114 Mo. 1. (8) Where it affirmatively appears from the recitals in a tax deed that no judgment was rendered against the land sold for taxes and intended to be conveyed by it, the deed is void. Guffey v. O’Reiley, 88 Mo. 418. (9) A patent from the United States for land need not be delivered nor recorded. It must be recorded in the General Land Office at Washington before it is issued, and when issued the grantee is invested with the title. Our statute in regard to conveyances does not apply to patents; and their effect as vesting title and affording notice is not dependent upon their being recorded. 2 Jones on Real Property, secs. 1377, 1378; Sec. 2809, R. S. 1909; Mosher v. Bacon, 229 Mo. 338; Patterson v. Langston, 69 Miss. 400. (10) The record in this case shows that the Wilcoxes and their grantors had been in the constructive possession of the land since 1864, a period of, over thirty-five years, with their deeds recorded, and that for fourteen consecutive years, from 1882 to 1895, inclusive, the taxes had been paid on the land by Mrs. Wilcox, after her death (1884) by her husband, and after his death (1889) by her heirs. The collector had therefore knowledge from his own and the county records that the Wilcoxes were claiming .to be and were the actual owners of the land, and the records in the-recorder’s office showed Mrs. Wilcox to be the apparent owner. Zweigart v. Reed, 221 Mo. 33; Evans v. Robberson, 92 Mo. 200; Watt v. Donnell, 80 Mo. 195; Moore v. Woodruff, 146 Mo. 597; St. Joseph v. Baker, 86 Mo. App. 310; Evarts v. Lumber Co., 193 Mo. 433; Stuart v. Ramsey, 196-Mo. 415; Sensenderfer v. Kemp, 83 Mo. 588; Swisher v. Sensenderfer, 84 Mo. 104; Life Ins. Co. v. Smith, 117 Mo. 292; Feller v. Lee, 225 Mo. 319; Rothenberger v. Garrett, 224 Mo. 191. (11). The record- further shows that the collector knew from the consolidated back tax book in his 'office, and the notations therein in red ink under the heading “Name of Owner,” that Abbie D. Wilcox or her heirs were the last record owners of the land and knowing this before suit was brought, brought his suit accordingly. The facts in this record are entirely different from those in Payne v. Lott, 90 Mo. 676; Nol'an v. Taylor, 131 Mo. 224, and Vance v. Carrigan, 78 Mo. 94. (12) Tax suits must be brought against the owner of the property and the collector in bringing the suit and the purchaser at the tax sale are bound to take notice of the record of deeds-; and one who buys at such sale in a tax suit against one not the record owner gets only the title of the defendant in the suit. Allen v. Ray, 96 Mo. 542; Evans v. Robberson, 92 Mo. 192.

      N. A. Franklin, John W. Bingham, Calfee & Painter and Campbell & Ellison for respondents.
    (1) All questions that were, or might have been raised in the former trial of this case, were, for the purpose of former adjudication, determined and passed upon, by the judgment of this- court at the former hearing. See "Wilcox v. Phillips, 199 Mo. 288; Donnell v. Wright, 147 Mo. 639; Spratt v. Early,,. 199 Mo. 491; Emmert v. Aldridge, 231 Mo. 124; Cantwell v. Johnson, 236 Mo. 575; Mangold v. Bacon, 237 Mo. 496. (2) Where, after an appeal a cause is reversed and remanded to the court below, with special directions, that court must do what the appellate court directs, and nothing more. Atkinson v. Dixon, 70 Mo. 381; State ex rel. v. Givan, 75 Mo. 516; Chateau v. Allen, 74 Mo. 56; Bridge Co. v. Stone, 194 Mo. 175. (3) The law of a case as declared on appeal becomes the law of the case on a second trial, especially where in the former appeal, the judgment was reversed with special directions. State ex rel. v. Edwards, 144 Mo. 467; Rees v. McDaniel, 131 Mo. 681; Railroad v. Bridge Co., 215 Mo. 286. (4) Wm. IT. Brownlee was the record and apparent owner and the proper party defendant in the tax suit. Wilcox v. Phillips, 199 Mo. 288; Vance v. Corrigan, 78 Mo. 94; Watt v. Donnell, 80 Mo. 195; Payne v. Lott, 90 Mo. 676; Allen v. Ray, 96 Mo. 542; Nolan v. Taylor, 131 Mo. 224. (5) The deeds, from Montgomery to Martin, Martin to Bradbury and Bradbury to Wilcox were outside the chain of title and of themselves no notice of title in any one. Parties are not chargeable with the notice of the record of deeds outside the chain of title. Williams v. Butterfield, 214 Mo. 425; Tidings v. Pitcher, 82 Mo. 379; Becker v. Strother, 167 Mo. 306; Bank v. Bank, 171 Mo. 327; Dingman v. McCollum, 47 Mo. 372; Cross v. Watt, 206 Mo. 394; Crockett v. Maguire, 10 Mo. 34; 16 Am. & Eng. Ency. Law (1 Ed.), p. 800. (6) A judgment obtained under a statute which is afterwards declared unconstitutional is valid until reversed, and cannot be impeached collaterally. 23 Cyc. 1071, note 43; Buck-master v. Carlin, 4 111. 104; Cassel v. Scott, 17 Ind. 514. (7) It is not permissible to show in any collateral proceeding that the assessment on which the taxes were based was illegal and void, or that the statute or ordinance authorizing the assessment was unconstitutional or invalid. Mayo v. Foley, 40 Cal. .281; Mayo v. AhLoy, 32 Cal. 477. (8) A judgment obtained under a law which had been virtually repealed by a treaty, declaring that no further proceedings should be taken under such law, still it can not be avoided in a trial of title of lands claimed under such judgment. McNeil v. Knight, 4 Mass. 282. (9) The jurisdiction of the circuit court in an action for delinquent taxes is founded on the Constitution and laws of the State, and its judgment therein cannot be impeached in a collateral suit by showing that no assessment was made against the land for the years for which the taxes were adjudged delinquent; also the assessment books, papers and records in the office of the county clerk are inadmissible in a collateral proceeding to show the invalidity of the sale of land for taxes. Gibbs v. Southern, 116 Mo. 204; Evarts v. Lumber & Mining Co., 193 Mo. 444; Dorrance v. Dorrance, 242 Mo. 666. (10) The circuit court having general jurisdiction, therefore, it had jurisdiction of the subject-matter in this case. Livingston v. Allen, 83 Mo. App. 294'; Hadley v. Bernero, 103 Mo. App. 549; Leonard v. Sparks, 117 Mo. 103. (11) A judgment for taxes, if brought against the right parties, is conclusive of all questions as to the amount of taxes due, the regularity of the assessment, the certificate of the collector, and is not open to attack in a collateral proceeding. Railroad v. Yiew, 156 Mo. 608; Holt County v. Cannon, 114 Mo. 514. (12) Brownlee was the proper and only necessary party defendant in the tax suit. He was personally served and had his day in .court. If the party bringing the suit for taxes had no authority to do so, this fact cannot be shown in a collateral attack. Brownlee, the defendant in the tax suit, had an opportunity to be heard, but sinned away his day of grace. Rankin v. Real Estate Co., 199 Mo. 345; Kansas City to use v. Youmans, 213 Mo. 175; Robinson v. Levy, 217 Mo. 498; Mangold v. Bacon, 229 Mo. 473. (3) Appellants in their equity count alleges that respondents’ tax deed is void on its face, and in the next breath ask to have it declared a cloud on their title. If it is void on its face it is certainly no cloud; and further if it is void on its face, that fact could have been shown on .the first trial. (14) Conceding, which we do not, that appellants have, the right to ask the court to consider the equity.count at this time, they certainly ought to have offered to do equity, by a tender of the taxes paid by respondents. Meriwether v. Overly, 228 Mo. 248.
   LAMM, J.

— Plaintiffs sued defendants, Phillips and Reed, in the Sullivan Circuit Court in 1902 in straight ejectment for 120 acres of land situate in that county, to-wit, the south half of northwest quarter, and the northeast quarter of the southwest quarter, section 3, township 63, range 18. Reed and Phillips held a warranty deed from Campbell and Campbell. The latter, on motion, were permitted to come in as codefendants, because in privity with Phillips and Reed as warrantors of their title, and filed answer, thereby making denials, but admitting the possession of Reed and Phillips. Reed and Phillips answered admitting possession and making a general denial of other averments.

Plaintiffs are the living (and descendants of deceased) sons and daughters of Abbie D. Wilcox, who (they claim), died seised of the land.

Presently plaintiffs recovered and defendants appealed here. In 1906 that judgment was reversed (199 Mo. 288) and the cause was remanded for a new trial with directions hereinafter noticed. When the case went down, plaintiffs, without objection, filed an amended petition in two counts. The first count was in ejectment in conventional form, as was the original petition; the second count was a bill in equity to clear up their title. In the meantime (in 1906) Phillips and Reed had reconveyed to their codefendants, Campbell and Campbell, by quitclaiming the premises to them. (Note: They had paid a small s.um down and had given á note and deed of trust to secure the balance of the purchase price, which note was surrendered to them by Campbell and Campbell, the latter repaying to Phillips and Reed their outlays. We find no answer filed by Phillips and Reed to plaintiffs amended petition.) The issues were apparently made up by Campbell and Campbell filing an answer to the amended petition, and plaintiffs replying thereto. This answer admits possession in Campbell and Campbell and they assume the burden of the defense, Phillips and Reed apparently dropping out. The cause came on for its new hearing in the Putnam Circuit Court on change of venue granted on the Campbells’ application. Presently on such hearing the court found for defendants on both counts and from a judgment following in defendants ’ favor plaintiffs in turn appeal.

Briefly in outline the case is this: Charles Jones was a private in Captain Alsberry’s company, Kentucky militia, in the War of 1812. That company was in the military services of the United States in that war. Jones duly received a military land warrant entitling him to locate 120 acres of land as bounty land for his services as such soldier. Thereupon Jones transferred his warrant to William H. Brownlee. Thereupon Brownlee, in the proper local land office, located the warrant upon the land in suit, and in turn received a due official certificate of such location, which he duly assigned to one James Montgomery. By virtue of such warrant, such assignment of the warrant, such location of the warrant upon the land in dispute, such certificate of location, and such assignment of such certificate (and on due showing made of all such facts),’ James Buchanan on the 16th day of June, 1860, acting for the Government- of the United States, as President, duly issued a patent to that Montgomery for said lands, and said patent was at onae duly recorded as required by United States statute in Vol. 215, p. 286, in the office of the Recorder of the General Land Office at Washington, D. C. This patent was not reoprded.-in the office of the recorder of deeds of Sullivan county until forty-two years passed, to-wit, on the 2nd day of August, 1902.- .’

’ • At the time the presently mentioned tax suit was brought, the records of Sullivan county showed as follows: (1) A tract book, duly certified by the proper local land office register, duly on file, showing the land entered by W. H. Brownlee as entryman in 1857; (2) the consolidated back tax book showing in a column headed “owner” that W. H. Brownlee, James Montgomery, Abbie D. Wilcox or “her heirs” were owners; (3) and the deed records showing a chain of title, by duly recorded deeds beginning with James Mont-, gomery and ending with a deed to Ább-ie D. Wilcox.

Plaintiffs claim under said patent and said mesne conveyance duly recorded.

Defendants claim under a tax suit in the Sullivan Circuit Court (against said Brownlee, said Montgom-; ery and said Abbie D. Wilcox, she, as said, being plaintiffs ’ ancestor) — such suit ripening into a judgment-in April, 1900, followed by a special execution thereon, a levy, a sale made in October, 1900, and a sheriff’s'' deed to defendants, Campbell and Campbell, purchasers-.

There was nó service in the tax suit on James, Montgomery, patentee, but W. H. Brownlee, entryman, was personally served and made no defense. As to Ábbie D. Wilcox, she was ostensibly served by an order of publication, but in fact had died in 1884. H.er husband, William, died in 1889.- None of plaintiffs were parties to that suit. The delinquent taxes merged in the tax judgment were assessed and levied for the years 1895, ’96, ’97 and ’98. The judgment, as said, was rendered in 1900. Abbie D. Wilcox during her life, subsequently William, her husband, during his, and plaintiffs on the death of both, paid the taxes to the proper tax officers (presumably by correspondence) for the. years 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891,. 1892, 1893 and 1894.

Questions raised, to be disposed of understandingly, will require more particularity in statement of facts and pleadings; such particularity will be supplied in connection with a disposition of those questions in the course of the opinion.

So much for a general outline by way of statement. We will consider the case under two heads, to-wit, first, of a certain motion on which defendants place emphasis and, second, of the merits.

In our opinion the judgment was for the wrong party and stands to fall — this because:

I. Of defendants’ motion to dismiss the appeal (and herein of res adjudicata).

At practically the same time of filing briefs, defendants filed a motion to dismiss the appeal on the ground of res adjudicata and briefed the point. In their brief proper the same question is raised. The point hinges on the fact that the judgment appealed from in the first appeal was reversed and the cause was remanded to the circuit court with the following directions: “To be proceeded with therein in accordance with this opinion.” The contention is that the lower court had no authority under that form of reversal accompanied with such, directions to permit an amended petition to be filed or to try the case over again, but was restricted to entering a judgment for defendants. lienee when it entered such judgment it was in conformity with the authority of our mandate on the first appeal and no second appeal lies.

If the premises were correct the conclusion contended for might follow, but the premises are not correct. In the first place, the general doctrines of this court on what questions are open on a second appeal in the same case have been so lately announced on a review of our cases in Mangold v. Bacon, 237 Mo. l. c. 512 et seq., as to need no extended exposition. Prying minds may consult that case and the authorities there noticed and canvassed. There is no pronouncement there made standing as an insurmountable obstacle in the road of considering the merits of this case on a second appeal. So late is that case and so full is its discussion that we decline to' restate its doctrines or consider them anew.

In the next place, in this-case there are important questions not determined in the former appeal, and, observe, the pleadings without objection were amended, raising issues on which such questions depend. For instance, for the first time do plaintiffs ask equitable relief on divers equitable grounds.

Moreover, if by inadvertence of counsel (or our own) the former appeal broke on a proposition,' which, when illuminated by new discussion, new briefs and fuller and maturer consideration, we deem to need modification, then, the authorities cited in the MangoldBacon case abundantly point to our duty and authority to make the modification ex debito justitiae; for, as said in the Mangolcl-Bacon case, “An appellate court is a court for the correction of errors- — its own as well as others. In correcting the errors of lower courts we do not proceed on the theory we make none of our own. ’ ’

Nor, closer home, is there anything in the phrase employed by us in remanding this case when here before, to-wit, “to be proceeded with therein in accordance with this opinion,” which forecloses the right to amend, to raise new issues and to have the case on a second appeal determined on a record presented by such second appeal. In Sheppard v. Wagner, 240 Mo. l. c. 442 et seq., we held in judgment a motion for a rehearing in which the point was made that the language in the opinion handed down amounted to a foreclosure of all possible questions and to a direction to enter judgment, which language follows, to-wit: “Judgment reversed and cause remanded to be proceeded with according to the views in this opinion expressed.” Observe, that language is of the same import as that now held in judgment. In overruling that motion our Brother Graves, speaking for us all, construed that language against the views of movent, saying, inter alia-.

“. . . When we remanded the case for new trial we had in view the fact that the answer might be made more specific. . . . This was one among several things which prompted a remanding of the cause. Our judgment was not a remanding of the cause with directions to enter any specific judgment, nor to proceed in any particular way. . . If the defendant Ella Wagner can show her right to this property through another valid agreement and transaction, the case is still open for that purpose.”

In remanding the case, after reversing the judgment, we might have foreclosed the right of amendment, we might have entered judgment ourselves or (what would be the same in effect) have ordered the lower court to enter a specified one and end the litigation, but we did neither the one thing nor the other, and, under the doctrine of the Sheppard-Wagner case, the right to amend was open. Shall we now tread back and make the new hearing on new issues and the new appeal mummery?

Furthermore (and as equally decisive), the point now up was not made below nor passed upon by the trial court. Defendants ’ learned counsel made no motion below for judgment because of our direction. Why not if they then thought as they think now? We think they must be taken, secundum regulam, as not so understanding the direction at that time, because they without a finger of protest lifted saw an amended petition filed, then they filed a new answer, then, as a first step in a new hearing on the merits, they cast an anchor to the windward by taking a change of venue on the theory the judge was prejudiced. Was the judge so prejudiced he would not be likely to obey our directions if he was asked to? That would be an astounding case of prejudice. Attend to defendants’ affidavit for a change of venue. It recites that “the case stands for trial at this term of court” and that “petitioner has good reason to believe and does believe that defendants in the above cause cannot have a fair and impartial trial,” etc. It thus appears that defendants expected and wanted a “trial,” not a judgment as of course as if per our direction, as defendants now contend.

So the question is raised here on the heels of the hearing for the first time; hence it not only comes late as smacking of afterthought, but is in the teeth of trial theories and the rule of appellate practice in that regard.

At the hearing at our bar the motion to dismiss was taken with the case. The premises in mind, let it be overruled. With that ruling there falls out of the case the same question in defendants’ principal brief.

II. Of the merits.

There are some subsidiary questions we set aside for the present, to be recurred to if deemed material. For present purposes we assume that Abbie D. Wilcox died seised of the land, and that by descent cast the title inured to her husband, her living children and the descendants of those dead. When the life estate of her husband fell in by his death, the entire true title, and actual ownership inured to plaintiffs on the assumption made. Now they were not parties to the tax suit, instituted, say, fifteen years after their ancestor’s death and one year after the death of Abbie’s husband, hence they had no day in court in that case. Due process of law depends oii service, i. e., notice, and, absent notice, due process was not given them. As pointed out in Womach v. St. Joseph, 201 Mo. l. c. 482: “ ‘Due process of law’ means law in the regular course of administration through the courts. [Jones v. Yore, 142 Mo. l. c. 44.] The term ‘due process of law’ is equivalent to the term ‘the law of the land’ — a term as old as Magna Charta. And, as said by Webster in a brief spariding forever as a jewel in'the crown of the American Bar in the Dartmouth College Case. (See 4 Wheat. l. c. 581), ‘By the law of the land is most clearly intended the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society.’ [Barber Asphalt Co. v. Ridge, 169 Mo. l. c. 384.] ‘In judicial proceedings,’ says Andrews, J. , in Bertholf v. O’Reilly, 74 N. Y. 509, ‘ due process of law requires notice, hearing and judgment. . . . ’ ”

Defendants’ proposition is, at bottom, that plaintiffs lose their land because of our taxation statutes and a certain admitted fact, to-wit, the non-recording of a United States patent in Sullivan county issued over half a century before to James Montgomery through whom and his vendees and snbvendees they hold title — a patent duly recorded by the Government at the place appointed by United States statute. It will be of interest to examine the reasons why that apparently astonishing result is said to follow.

(a) It is argued, in effect, that the record of Sullivan county at the time of the suit showed William H. Brownlee, the entryman, to be the apparent record owner, that there was personal service on him in the tax suit, hence the purchasers at the tax sale got a good title. This argument, we submit, proceeds on an entire fundamental misconception of law and of the facts of this record. It might be admitted that defendants acquired Brownlee’s title; but does something come out of nothing? When they got his title did they get anything? Had he any title at all?

But defendants’ contention connects itself with our laws relating to taxation and the bringing of tax suits for the purpose of coercing the payment of contributions imposed by government as a sovereign in order that the various functions of the State might not perish, and the question shifts itself and comes to be this: Is there anything in those laws or in our adjudications that passes the title of those true owners who had no day in court to a tax purchaser because of the fact that a half century ago the patentee through whom those owners hold neglected to record his patent in the county? That such question must be answered in the negative results, I think, from the following postulates :

(1) In the first place it would seem that to pass title or impart notice neither a patent from the United States nor_a patent from the State, itself needs record in the county in which the land is situate. “A patent from the United States for land need not be delivered or recorded. Title by patent from the United States is title by record; and though it is usual to deliver a patent to the claimant, as in case of deeds, yet delivery of it is not necessary. ‘The acts of Congress provide for the record of all patents for land in an office, and in books kept for that purpose. An officer called the “recorder” is appointed to make and to keep these records. He is required to record every patent before it is issued', and to countersign the instrument to be delivered to the grantee. This, then, is the final record of the transaction — the legally prescribed act which completes what Blackstone calls “title by record,”— and when this is done the grantee is invested with that title. The statutes in regard to recording do not apply to conveyances by a State. Such conveyances may be recorded, and generally are, but their effect as vesting title and affording notice is not dependent upon their being recorded.’ ” [2 Jones, Real Prop., secs. 1377-1378; Mosher v. Bacon, 229 Mo. l. c. 358 et seq.] The statutes of the State of Missouri, recognizing the fact that patents emanate from the General Government and evidence acts of that Government as overlord, do not require as a condition precedent to vesting title or imparting notice that such patents be recorded in the county in which the land is situate. It would be uncommonly revolutionary and singular if they assumed such hostile and unconstitutional attitude. To the contrary, onr statutes are merely permissive and use the phrase “may be recorded.” [R. S. 1909, sec. 10390.] . Conveyances that must be recorded are mentioned in another section. [Ibid., sec. 10381.] Why should taxing officers and tax purchasers not be charged with notice of United States grants by way of patents duly recorded where the law under which they are made requires a record? But, because of what follows,*we need not pursue the subject or allow the case to ride off solely on such view, though that view might settle this case if followed to its logical conclusion; for, in that view of it, the record of Montgomery’s patent in the proper office in Washington, D. C., imparted notice as a matter of law.

(2) In the second place it is a mistake to suppose that our taxing laws proceed on the theory that the landowner loses his land in any way or on any prim ciple differing from the way and principle on which landowners lose their land on general or special judgments followed by sheriffs ’ deeds. Contra', those ways and principles are precisely the same and all relate, in the particulars in hand, to the question of purchasing in good faith, that is, without notice. In other words, a tax purchaser stands in the shoes of any other purchaser at sheriffs’ sales. If the other purchaser would get title, the tax purchaser gets one and not otherwise. Tax suits' are required by the statute to be brought against the owner of the land. If that owner has kept his title off of record and if the suit is brought against the last apparent record owner and the purchaser buys without any notice of the fact that the apparent record owner has parted with his title to another, then, the true owner loses his land. Why? Because he neglected to record his deed and thereby impart notice of his title. If one of two stands to lose, the law puts the loss on the one whose neglect caused it. But we have never held that a record notice is the only method of imparting notice of an outstanding title. The doctrine of this court is that if the party relying on the lack of notice of land ownership in another at the time of his execution purchase has actual, notice dehors the record, then a record notice to such party fills no office and becomes unnecessary. In Harrison Machine Works v. Bowers, 200 Mo. l. c. 231 et seq., our pertinent recording and tax statutes are considered.* There seems to be such a widespread and mischievous notion abroad to the effect that there is something peculiar about tax sales and tax deeds taking them out of the generally recognized principles relating to notice of ownership in another that it may not be amiss to reproduce a part of what is there said :

“If an unrecorded deed from the apparent record owner of land to a bona-fide grantee be put of record after a judgment against such apparent record owner but before a sale under execution issued on that judgment, the grantee in snch deed will hold the land as against the purchaser at such sale; hut it is not so if such deed be recorded after the execution sale. See, Davis v. Ownsby, 14 Mo. 170, and a long current of authority flowing from that leading case.
“Lite reason makes like law. Hence, the foregoing proposition has been applied where an attachment was levied on land standing in the-name of the defendant in the attachment suit. It- has been held that if such defendant part with his title to a bona-fide purchaser by executing a deed, which such purchaser had failed to record before the levy of the attachment but which he records prior to a sale under the attachment proceedings, he would hold the land against the purchaser at such sheriff’s sale. [Hannah v. Davis, 112 Mo. l. c. 607; Hope v. Blair, 105 Mo. l. c. 95.]
“The foregoing cases but promulgate the spirit and substance of the statutes of this State. For instance, section 923, Revised Statutes 1899, provides that ‘ every instrument in writing that conveys any real estate, or whereby any real estate may be affected, in law or equity, proved or acknowledged and certified in the manner hereinbefore prescribed, shall be recorded in the office of the recorder of the county in which such real estate is situated.’ The next section is as follows: ‘Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof and all subsequent purchasers and mortgagees shall be deeemd, in law and equity, to purchase with notice. ’ And the next section reads as follows: ‘No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record. ’
“The principles of law giving a sheriff’s deed upon a tax judgment and sale precedence over an unrecorded deed from the apparent record owner are but the principles announced in the foreg'oing statutes and the foregoing’ cases. The leading case on. the effect of a tax deed borrows and uses the same principles applicable to an unrecorded deed from the apparent record owner in cases arising on sheriff’s sales on ordinary judgments. [Vance v. Corrigan, 78 Mo. 94.] And it has been held in a very late case (Stuart v. Ramsey, 196 Mo. 404), that if the execution purchaser under a tax sale had notice of an unrecorded deed, then, his title acquired at the tax sale was inferior to that of the grantee in such unrecorded deed. The same doctrine was’ recognized (arguendo) in Allen v. Ray, 96 Mo. 542.”

It is true in the Bowers case we were dealing with a case where the true owner put his hitherto unrecorded deed on record pending the tax suit, but we were also considering the registry acts in connection with the statutes relating to tax suits with the purpose of showing that the purchaser at a tax sale stands precisely in the position of an execution purchaser at any other sale, and that he gets no title where he has notice of an outstanding title in another (1) either by the record of the unrecorded deed during the pendency of the tax suit (2) or such record after judgment and before the tax sale, (3) or (which is close home)" where he gets such notice dehors the deed record. The adjudicated cases are in accord on all the propositions just announced and thé last proposition we will pursue further. The leading case of Vance v. Corrigan, 78 Mo. 94, recognizes it arguendo. Watt v. Donnell, 80 Mo. l. c. 198, recognizes it. Lucas v. Land & Cattle Co., 186 Mo. l. c. 456, recognizes it by necessary inference. Sugg v. Duncan, 238 Mo. 423, recognizes it similarly. Moore v. Woodruff, 146 Mo. l. c. 602, recognizes it similarly. All those cases (and many more might, be cited) lay down the general rule that if the tax suit is brought against the person who appeared from the record to be owner the purchaser g’ets title, but mark the weighty exception, vis.: “In the absence of notice of facts that such person is not the true oivner.”

In Stuart v. Ramsey, 196 Mo. l. c. 415 et seq. (q. v.), is an extended discussion on the invalidity of a tax title arising from the fact the purchaser was informed before his purchase that another, the true owner,.claimed the land, and who was not a party to the suit. The proposition is there announced that the true owner does not lose his land under such circumstances and the grounds of such conclusion are satisfactorily put as resting on the general doctrine that he who takes a deed with actual notice of an outstanding deed carrying the title takes it subject to the outstanding title. In the Watt-Donnell case, supra, notice was imparted by actual possession in the party holding the outstanding title. In the Stuart-Ramsey case the tax purchaser was put upon inquiry by a verbal notice that the tax judgment defendant had parted with his title. In the latter case this court rigidly applied the doctrine of plenary notice from being put on inquiry by facts and circumstances. “It has often been decided by this court,” said Gantt, J., in the Stuart-Ramsey case, “that if one has notice of the actual possession of land which another has, it will he notice to him of that other’s title. [Masterson v. Railroad, 72 Mo. 342; Davis v. Briscoe, 81 Mo. 27; Freeman v. Moffitt, 119 Mo. 280; St. Joseph v. Baker, 86 Mo. App. 310; Wiggenhorn v. Daniels, 149 Mo. 160.] But these cases do not mean that actual notice of one’s title may not be imparted otherwise than by actual possession of the land. Actual notice within the meaning of our law is used in contradistinction to the constructive notice imparted by the record of a conveyance. It does not mean direct evidence that the subsequent purchaser actually knew of the existence of the deed. Any proper evidence tending to show it, facts and circumstances coming to his knowledge that would put a man. of ordinary circumspection upon inquiry, will suffice. [Maupin v. Emmons, 47 Mo. 304.] As said by this court in Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. l. c. 292: Courts of equity, since their earliest foundation, have always' recognized that the still, small voice of suggestion, emanating as it will from contiguous facts and surrounding circumstances, pregnant with inference and provocative of inquiry, is as potent to impart notice as a Presidential proclamation or any army with banners.’ In Sensenderfer v. Kemp, 83 Mo. l. c. 588, Black, J., speaking for the court said: ‘Notice “is actual when-the purchaser either knows of the existence of the adverse claim of title or is conscious of having the means of knowledge, although he may not use them.” [Speck v. Riggin, 40 Mo. 405.]’ [See, also, Swisher v. Sensenderfer, 84 Mo. 104.] ”

In Zweigart v. Reed, 221 Mo. 33, the case -was ruled on the doctrine of Stuart y. Bamsey; on facts slightly differing but equivalent in substance to those in the Stuart-Bamsey ease. In the Zweig’art-Beed case Beed bought from Dunnegan by quitclaim deed, who, in turn, was the purchaser at the tax sale, and therefore held subject to the equities between the true owner, the plaintiff, and.Dunnegan and was cast because Dunnegan was put on inquiry and was charged with notice of the facts which such inquiry, reasonably pursued, would disclose. Assuming, therefore, without citing other authorities, that the rule is that where a purchaser at a tax salé has knowledge of facts and circumstances prompting an inquiry on the part of a reasonably prudent person and where such inquiry from the proper source would have disclosed the. real owner of the land, then, the purchaser takes nothing by the tax deed because legal notice always follows facts sufficient to put a person on such inquiry, we come to the facts in the instant case.

(8) Undoubtedly those, officers charged with the duty of collecting taxes in Sullivan county had notice of the fact that Abbie D. Wilcox or her heirs had been paying the taxes ‘on this land for many years immediately prior to the years on which the tax delinquency arose. Evidently, too, they had some sort of notice of Montgomery’s patent, or at least of his sometime claim. They knew, too, from the. tract book that Brownlee was entryman. We say so much as that because in the consolidated back tax book in the column headed “owner” appeared a notation in the county clerk’s hand-writing that Brownlee, Montgomery; Abbie D. Wilcox, “or her heirs” were owners. Armed with that information in that book the tax attorney, omitted from his petition the heirs of Abbie D. Wilcox and made Brownlee, Montgomery and Abbie D. Wilcox parties - defendant, alleging therein that they were the owners of the land. So, the judgment recited that the allegations of the petition were found to be true. ..Hence the court found and spread of record the fact that Abbie D. Wilcox was an owner. We so held on a similar state of facts in a late case. [Skillman v. Clardy, 256 Mo. 297.] So, the execution made a similar recital, the levy was on her interest, the advertisement of the sheriff’s sale made a similar recital, and (to cap the climax) the very sheriff’s deed under.which Campbell and Campbell hold made recitals meaning in legal intendment that they purchased her interest.in the land. In this state of the record all question of notice to the tax purchasers of Mrs. Wilcox’s ownership is set at rest by an adjudication of this court- in Adams v. Gossom, 228 Mo. l. c. 582 et seq. In the Adams-Gossom case, as in the instant case ,the tax purchaser entered .into possession under his sheriff’s'deed. In that case Adams was dead and here Mrs. Wilcox was dead. In that case, as in the instant case, th'e dead Adams was a party defendant brought in by públication together with a former record owner, one Stay, and we there said:

“But in our case Gossom had notice of Adams’s title and estate by the very proceedings under which he bought. Adams was owner in fact. He was notified by publication as owner. He was sued as owner. The judgment proceeded against him as owner. The sheriff’s notice of sale proclaimed to all purchasers that Adams’s interest had been seized by an execution levy and was about to be .sold. Gossom’s bid was for Adams’s interest and his sheriff’s deed purported to convey it to him. Gossom entered into possession under that deed and therefore held possession on the theory that he had acquired title from Adams. Under such circumstances he could not be allowed to claim that he had no notice of Adams ’s' title and claim. He was plainly put on inquiry and must be held to know what such inquiry, reasonably and diligently pursued, would have resulted in finding out. Under such circumstances knowledge is imputed to one who had the means of knowing at hand and the recitals of his title papers are somewhat in the nature of an estoppel upon him to deny Adams’s title. [Wade on Law of Notice (2 Ed.), secs. 308 and 309.]
“That law-writer sums up the general doctrine in this way: ‘As a matter of fact a purchaser of real estate may be totally ignorant of the recitals in his own deed; yet every recital of a fact affecting the title to the premises, contained in such deed, will be presumed to be known to such purchaser, and he will be affected with notice thereof in the same manner and to the same extent as though he had actual knowledge. Therefore it may be said that notice derived from the recitals of a deed to a purchaser is actual, though it clearly rests upon a presumption of law. It may be called actual, however, in the same sense that a written notice delivered to a party who never reads it may be called actual notice.’ ...
“At worst Adams’s title was on the foot of an unrecorded deed, and it is settled doctrine that a purchaser at a tax sale, who has notice of an unrecorded deed, takes subject to the rights of the grantee in such deed since he stands charged with the knowledge that the apparent record owner was not the real owner. [Stuart v. Ramsey, 196 Mo. l. c. 414-5; Harrison Machine Works v. Bowers, 200 Mo. l. c. 232 et seq.; Zweigart v. Reed, 221 Mo. l. c. 43 et seq.] It is sound to reason from similar to similar, for the precept is, concerning similars, the judgment is the same.
“We rule, then, that Gossom bought with notice of the title of Adams. As the tax judgment was void as to Adams and his heirs, the ruling just made'means that the case was wrongly decided, nisi.”

The ruling in the Adams-Gossom case, is precisely, in point and, hence, conclusive in the instant case unless we are prepared to overrule it, and that we are not willing to do.

(b) As said, there are some subsidiary questions m the case:

(1) Plaintiffs complain in their second count, their bill in equity, of irregularities in defendants’ sheriff’s deed, a saló in solido, a reference to a sale of only the “last tract” mentioned (said last tract being only one quarter-rquarter section) and so on. But it is evident the case has broken before those questions are reached. Hence they are reserved.

(2) The former township organization law under which the taxes in question were assessed and levied and under which the county treasurer was ex officio collector of back taxes and therefore brought the tax suit, was declared unconstitutional by this court In Banc in State ex rel. v. Gibson, 195 Mo. 251. The opinion in that case went down March 30, 1906. Plaintiffs in the second count of their petition also attack the tax deed and judgment as void because founded on an unconstitutional law. In turn defendants defend the judgment and deed. They say the attack is collateral, that the tax judgment is res adjudicata and so on.. The extremely grave and deep-going, questions thus raised are not necessary to a decision of this case and are put to one side as reserved. Their gravity and far-reaching consequences bespeak a ruling only in a case where they are decisive.

(3) When the case at bar was ruled the first time (199 Mo. 288) it was on a unanimous opinion. The first opinion in that case broke defendant’s title on the theory that a mere entryman did not hold such title as made the land subject to taxation by the State and county. A rehearing was granted on that ruling. At the rehearing the chief attention of counsel and court was directed to that ruling and it was exploded.

Questions now emphasized by elaborate discussion by counsel were overlooked, or faintly pressed before, and we have come to the conclusion that if in the last (and printed) opinion on the former hearing any doctrines were announced differing inferentially or directly from those now announced, they should no longer be followed.

(4) It is argued that if the tax deed and judgment be void on their faces for any of the reasons claimed by plaintiffs, then equity does not take jurisdiction. We will not develop the contention. In Pocoke v. Peterson, 256 Mo. 501, the grounds of equitable interference in removing clouds on land titles are set forth (q. v.). We consider them pertinent and controlling in the instant case. The contention is, therefore, disallowed to defendants.

(5) Complaints are made on all sides of a failure of proof in showing the identity of certain ñames with certain persons involved in the respective chains of title (Brownlee on one side, and a person named Leroy Martin, on the other), but we find such complaints lack substance.

(6) Miserable, indeed, would be tbe condition of purchasers of land and landowners if they were obliged to take constructive notice of the record of deeds by strangers to their title, conveying the land to other strangers to that same title (2 Devlin on Real Estate Deeds [3 Ed.], sec. 712); hence defendants’ counsel invoke the proposition that the Campbells had no notice of deeds outside the chain of title under which they hold, to-wit: a chain of two links — one, an entry by Brownlee, and the other á sheriff’s conveyance of his title to them. But this view of it assumes that the record at Washington, by the Government, of the patent to Montgomery, carrying as it does recitals of a location by Brownlee of Jones’s military land warrant, and of Brownlee’s transfer of his certificate of such location, together with the record of deeds in Sullivan county, whereby the land was conveyed by Montgomery by mesne conveyances to plaintiffs’ ancestor, are each and all ineffectual to impart notice to the Camp-bells.- We have already dealt with that feature in this opinion, and shall add nothing more. The question need not be taken as decisive, for we have worked out notice to the Campbells through the very recitals of their own sheriff’s deed under the ruling in the AdamsGossom case, supra.

The premises all in mind, the judgment stands for reversal. Accordingly it is reversed, and the cause is remanded with specific directions to the trial court to take an accounting of rents, on one side, and taxes paid by defendants since their purchase, on the other, strike a balance between the two and give judgment thereon as the facts found may show. The trial court is further directed to find for plaintiffs on the first count for possession and order the judgment executed by a writ of ouster and execution for rents, if any be found due. The trial court is further directed to find for plaintiffs on the second count to the effect that the tax judgment and deed in .question are invalid for lack of service on plaintiffs, the trne owners of the land, and that such judgment and deed he ordered cancelled and annulled for that reason.

Debet esse finis litium.

It is so ordered.

Woodson, P. J., and Graves, J., concur; Bond, J., concurs in paragraph II and in result.


author: BROWN, C. PER CURIAM.

text:
    THOMAS W. COLLINSWORTH v. THE UNITED ZINC AND CHEMICAL COMPANY, Appellant.
    Division One,
    July 14, 1914.
    1. MOTION TO MAKE MORE DEFINITE AND CERTAIN: Non-suit: New Trial: Appeal. Defendant’s motion to make more definite and certain having been overruled, - he excepted and filed a term bill of exceptions, after which his answer was filed by leave of court. At-the trial the judge gave a peremptory instruction for defendant, w-hereupon plaintiff took a nonsuit with leave. Afterward, on plaintiff’s motion, the nonsuit was ordered set aside and a new trial granted. Defendant appealed from that order. Meld, that the order granting a new trial cannot, on this appeal, be set aside, and the judgment be reinstated, on the ground that plaintiff’s petition did not charge the negligence with sufficient particularity.
    2. NEGLIGENCE: Master and Servant; Operating Machine: Evidence: Question for Jury. The plaintiff, employed by defendant, was injured while operating a planing machine the top of which consisted of two movable flat surfaces between which revolved two long knives set to a shaft. The surfaces could be raised or lowered separately by turning the proper one of two wheels on the side of the machine, and could be fixed at any elevation by the use of set screws. The plaintiff was not required to and did not assist in keeping the machine in repair, and the use of the set screws had been discontinued. When a board was to be dressed the front surface of the machine was depressed below the top of the circle of revolution of the knives a distance equal to the amount to be taken from the board, and the surface behind was set exactly level with the top of the circle. The plaintiff testified that he passed a board twice over the machine and it cut its way evenly through it; that he started the board again, when, suddenly, lie felt the rear surface of the machine go down, the knives caught the board and threw it across the room, and his hand went into the knives.. The rear surface of the machine was found after the accident 'to be depressed a quarter of an inch; and an expert, introduced by defendant, testified that the smooth cuts upon the board, which was shown him, could not have been made with the rear surface depressed, nor could it have been otherwise than depressed when the irregular cuts, which plaintiff asserts immediately preceded his injury,' were made. Held, that the question of negligence was for the jury.
    Appeal from Jackson Circuit Court. — Eon. E. L. McCune, Judge.
    Affirmed.

      J. C. Rosenberger, Kersey Coates Ree3 and Ashley S Gilbert for appellant.
    (1) The rule res ipsa loquitur has no application to the facts of this case and the trial judge did right in granting the peremptory instruction and his successsor judge erred in setting aside the nonsuit. Even on plaintiff’s own testimony the proof does not show that the back table of the machine suddenly, unexpectedly or otherwise dropped or subsided while plaintiff was using the planer. But for the purpose of the present argument we propose to accept plaintiff’s statement that he “felt” the back table drop or go down at its face value, and propose, therefore, to assume that while plaintiff was using the planer, the back table thereof suddenly and without human agency dropped or went down, thereby jerking the stick out of plaintiff’s hand and causing the injury. Defendant’s contention is that the rule res ipsa loquitur has no application to the facts of this case,' first, because no negligence can be inferred from the fact alone that on this occasion the back table dropped or subsided (assuming this to be true); that at most this was but proof of the primary physical pause of the injury, or, in. other words, but proof of the happening of the accident, and that it was necessary for plaintiff to go further and produce some evidence, either direct or circumstantial, as to the secondary cause, that is, as to what caused the alleged movement of the back table, and if this was shown to be due to some defect in the machine, it was incumbent on plaintiff to show further that it was such a defect as could have been discovered by defendant by the exercise of ordinary care; and, second, because the rule res ipsa loquitur never applies in a master and servant case, where, as here, the injury occurs while plaintiff is operating and in charge of the appliance and he and his fellow servants have access to and are familiar with it and its use, and have full opportunity to know thereof, so that the cause of the accident is susceptible of direct proof and specification, requiring no resort to the rule invoked or to inferences or presumptions, the rule itself being one of necessity, not a favorite of the courts and wholly inapplicable in a master and servant case, where, as here, the facts are as much, if not more, in the posses sion of the plaintiff as of the defendant. The foregoing principles relied on by defendant are well sustained by the cases in this as well as in other jurisdictions. Klebe v. Distilling Co., 207 Mo. 480‘, 13 L. R. A. (N. S.) 140; Hamilton v. Railroad, 123 Mo. App. 619; Breen v. Cooperage Co., 50 Mo. App. 202; Glascock v. Swofford Co., 106 Mo. App. 657; Howard v. Railroad, 173 Mo. 531; Beebe v. Transit Co., 206 Mo. 419, L. R. A. (N. S.) 760; Oglesby v. Railroad, 177 Mo. 272; Patton v. Railroad, 179 U. S. 658; Railroad v. Barrett, 166 U. S. 617; Shandrew v. Railroad, 142 Fed. 320; Searles v. Railroad, 101 N. Y. 662. An examination of the foregoing cases will show that it would be stating it altogether too broadly to say that the rule “the thing speaks for itself” never applies in master and servant cases. Even the cases we have cited are careful to say that there may be cases, albeit rare and exceptional, in which the rule will be applied. Klebe V. Distilling Co., 207 Mo. 480; Beebe v. Transit Co., 206 Mo. 419 ; Hamilton v. Eailroad, 123 Mo. App. 619. But these and all of the cases unite in holding that in master and servant cases, before the. rule will be applied, the plaintiff must show not only that an accident happened, but that there is that.in the circumstances of the occurrence which in and of itself raises an inference of the master’s negligence and excludes causes for which the master may not be responsible, and to this has been added the further qualification that where the injured servant when hurt is operating the machine, and he and his associated servants have access to and are familiar with it, so that the exact cause of the accident is susceptible of proof by witnesses., the plaintiff will be required to specify and prove negligence. Plaintiff’s claim that the table dropped is so opposed to the physical facts and so opposed to the undisputed testimony that no verdict rendered in his favor would be allowed to stand. Brosius v. Lead & Zinc Co., 149 Mo. App. 181; Oil Co. v. Knisel, 79 Ark. 608; Noble v. Crane, 169 Fed. 55. (2) Plaintiff on his own testimony was guilty of contributory negligence.

      Guthrie, Gamble & Street for respondent.
    (1) The continued use of a machine known from previous experience to be erratic and dangerous in its action is negligence even if the cause of its dangerous action be not disclosed by inspection. Blanton v. Dold, 109 Mo. 64; Klebe v. Distilling Co., 207 Mo. 490; Oborn v. Nelson, 141 Mo. App. 435; Moffat v. Bateman, L. E. 3 P. C. 115, 22 L. T. (N. S.) 140; Ice Co. v. Finn, 80 Fed. 483; Ousley v. Eailroad, 86 Gra. 538; Mooney v. Lumber Co., 154 Mass. 4Q7; Eailroad v. Stanford, 12 Kan. 372; Harter v. Eailroad, 55 Kan. 256; Bridge Co. v. Fellows, 52 111. App. 504; Krogstad v. Eailroad, 46 Minn. 18; Burnside v. Mfg. Co., 121 Mich. 129'; Mc-Kenna v. The Carolina, 30 Fed. 200; Kaplin v. Biscuit Co., 38 N. T. Supp. 1049: (2)' There was evidence for the consideration of the jury upon the issue that this machine had a dangerous propensity and that the master knew it. Bender v. Railroad, 137 Mo. 245; Montgomery v. Railroad, 181 Mo. 477; Powers v. Transit Co., 202 Mo. 280; Wilson v. Board, 63 Mo. 137; Moore V. Transit Co., 194 Mo. 9; Franke v. St. Louis, 110 Mo. 525; Phelan v. Granite Co., 115 Mo. App. 432; Jordan v. Transit Co., 202 Mo. 429', 430:
   BROWN, C.

— This is a suit to recover damages for personal injuries suffered hy plaintiff while operating a planing machine in defendant’s carpenter shop. It was tried in October, 1905. The petition charges the negligence complained of as follows: “That said machine consisted of two tables, a front table and a back table, with a planer between, and for the performance of.the work which plaintiff was then doing it was necessary that the tops of said tables should remain level and secure, but plaintiff says that on and prior to said September ■ — , 1905, the defendant so negligently constructed and maintained said machine and the appliances supporting said bach table that while plaintiff was in the performance of his work, pushing a board upon said planer and jointer, said back table suddenly and without warning, because of its negligent construction and maintenance, dropped down and thereby caused the plaintiff, who was holding said board, to lose control of the same, and threw his right hand against the knives of said planer and jointer, severing the four fingers of his right hand and injuring the thumb' of his right hand.” The answer consisted, first, of a general denial; second, a plea of contributory negligence; third, a plea of assumption of risk; and, fourth, that the injury resulted from the act of a fellow servant. This was all denied generally by replication.

The trial was in October, 1908, in Division Four of the Jackson Circuit Court, before Hon. H. L. MeCune, Judge of said court, who, at the close of all the. evidence instructed “that under the law and the evidence plaintiff has no cause of action against the defendant, and your verdict must be in favor of defendant,” whereupon the plaintiff took a nonsuit with leave to move to set the same aside.

The plaintiff, within four days, filed his motion to set aside the nonsuit on the ground, among others, that the court erred in giving the peremptory instruction, and that under the pleadings and evidence he was entitled to have his cause submitted to the jury.

While this motion was pending and on. January 1, 1910, the term of Judge McCune expired and Judge W. 0. Thomas succeeded him as judge of said court, and afterward, on May 28,1910, and during the April term, sustained said motion and set aside the nonsuit, from which order this appeal is taken.

Before filing its answer, and at the April term, 1908', the defendant filed its motion for an order on plaintiff to make his petition more definite and certain on the following grounds:

“1. To show in what way and manner said defendant was negligent in the construction of the planing mill and tables referred to in said petition:
“2. To show in what way and manner said de fendant was negligent in maintaining said planing mill and tables referred to in said petition.
“3. To show what plaintiff was doing when said back table dropped down as referred to in said petition.
“4. To show how and in what manner plaintiff’s right hand was drawn or thrown against the knives o'f said planer as the result of the dropping down of said table referred to in said petition.
“5. To show how and in what manner said back table of said planing machinery referred to in said petition dropped down as the result of any negligence on the part of said defendant.
“6. To state in.what capacity plaintiff was being employed by said defendant at the time said plaintiff alleges he received the injuries referred to in said petition.
“Defendant -further states that it cannot safely answer said petition or go to. trial in said cause unless said petition is made more definite and certain in the particulars stated. ’ ’

This was overruled by the court and'bill of exceptions filed to such ruling at the same term, after which the answer was filed by leave of court.

The accident occurred October 17, 1905’, in defendant’s carpenter shop in Argentine, Kansas, where plaintiff was employed as a carpenter about the plant. Various woodworking machines were provided for the use of the carpenters in the shop, which was a building about 30> by 40 feet in size with a room partitioned off for an office and headquarters of F. J. Reichert, the foreman for the defendant in the woodworking department. He selected the machine when it was purchased and was responsible for its operation in the plant. He states in his testimony for defendant that he had charge of all the machinery there, instructed the men in its operation and when anything was wrong put it in first class shape. It had been installed by him in the shop when new, the previous summer. It was an excellent machine for the work for which it was designed, and was run by electric power. It was constructed of iron and steel, on a castiron base upon which the knife-shaft and other movable parts, including the machinery for raising and lowering the tables, were hung. Its exterior is substantially shown in the illustration.

Its construction was as follows:

The cutting part consisted of a heavy iron knife-block sixteen inches long and generally square in external shape, hung on a shaft between its journals, which rotated in boxes at each side of the machine. To this was bolted at opposite sides, with eight bolts each, two heavy knives of the same length, with their cutting edg’es at opposite corners. It extended transversely across the middle of the machine, and was placed below the tables over which the material to be worked was run, so that the cutting edges rotated toward the front or end of the machine from which the material was fed to it by hand. The table upon which the material was fed to the knives was of castiron, and in two parts, which moved independently of each other, one in front and the other behind the knives. Each of these at the end next the knives was chamfered from almost an edge at the top surface, upon a concave line downward and backward, so that when it was raised and lowered it could also be moved to and from the knives, so that the upper edge would fit close .to them and follow, as near as might be, the.line of the circumference of their rotation throughout the thickness of the plates.

When used, the front table was lowered as far below the top of the knives as the thickness of the cut desired and the back table was left on an exact level with the top' of the knives, so that when the stick to be planed was shoved onto the knives from the front and the cut taken out of it, the planed surface rested on and was supported by the back table. In this way the work was shoved over the knives and was taken off from the back table. Sometimes the wearing or removal of packing from the journal boxes would lower them so that the back table would have to be lowered to their level; and sometimes, but not often, the character of the work was such that it was necessary to Lower it below the level of the top of the knives. An example of this is seen in the accompanying cnt, which shows how they could be used to cut an opening for their own revolution in the gauge which sits over them.

For these and other purposes each of these tables may be lowered or raised by turning one of the hand wheels shown in the cut in front of the machine. The rod rotated by each of these circular handles passes through the thick wall and into the cavity of the base of the machine where a screw thread is cut on it, and it forms a worm gear with the teeth of a wheel on another screw, which passes longitudinally under each side of the table. This, like the ordinary jack screw exerts an immense force on the jointed lever which may be seen under the table in the cut, forcing the table toward the knives. Under each corner of each table is a block, which may be seen plainly in the cut, one triangular half of which is fastened to the table and .the other to the base, the diagonal edges sliding upon each other. As the table is forced toward the knives it climbs the triangular block attached to the base so that it preserves its relation to the circumference of rotation of the knives, which are speeded to 4500 revolutions per minute: In the picture the wheel at the right raises and lowers the front table from which the material is fed to the knives, and which is always lowered to the depth of the desired cut, while the one on the left works the table at the back which is practically always maintained at the same height. Each one of these appliances to raise and lower the tables had, when the machine was new, a set screw to hold it in place, which could be applied so tightly that the handwheel could not be moved. The one in front got lost, while the one behind the knives was used for a short time, but had lapsed into disuse sometime before the accident.

There was evidence on the part of plaintiff tending to prove that on two occasions before this accident-the back table was found to be too low; that on one occasion at least it had become lowered when used.

Plaintiff, although he had worked at the plant before, had left it before this machine was- installed, and came back about the 25th of September previous to the accident. He used it a few times before he got hurt. At. that time he had a piece of' plank to be planed. It was about thirty inches long, eight inches wide and two and one-half inches thick and he desired to' dress it down to two inches in thickness. He ran it through the planer twice, once on each side, and found that he still had about an eighth of an inch to dress off, and started to run it through again when suddenly, as he says, he felt the back table go down, the'knives caught the stick and threw it across the shop against the door with so'much force that it startled Reichert in his office so that he came out to see what was the matter, and plaintiff’s hand went in the knives so that four fingers were cut off. It is admitted that the machine was very dangerous when the back table was down. The plaintiff’s counsel say in their statement: “But if the back table were down, say one-fourth of an inch, then, unless the-timber were carefully held by the operator, this would result not only in the knives tearing the wood, making a rough and uneven cut, but also in great danger to the operator of having the knives jerk the lumber out of his hands and throw it with great force toward him, and of his hands going against the knives.”

"When the accident to plaintiff happened, Mr. Reichert directed, that the machine should remain as it was and the piece of the plank that had been thrown from it was saved and brought into court. When the machine was examined it was found that the back tabh was a quarter of an inch below the top of the knives. The- piece of wood that was being planed at the time of the accident was shown to Mr. Klassen, an expert witness of long experience, who testified for defendant that it was impossible that the table should have been in that position when the first cut, which was a smooth one, was made; and when asked the following question: “If you saw a man actually do it — if you knew that this board had gone across here and made that smooth, clear cut, and the back table was already down — ” He interrupted, and said, “It is impossible.” Then the following question was asked him: “And if he turned that board over and shoved it across, and the next time it went across it cut as the knives have cut on that board, then the back table was down when that happened, wasn’t it?-” He answered, “Yes, sir, it could not be otherwise.”

Other features of the testimony will be noticed as found necessary in the opinion.

Motion toMake More Definite and I. The defendant seeks to have the order taking off the nonsuit and granting a new trial set aside and the judgment reinstated because the negligence charged in the petition is not „ pleaded with sufficient particularity. This jg 011.e 0f the cases that illustrate the justice and usefulness of the rule that a general charge of negligence is good as a basis for proof unless objected to at a proper time before trial. [Conrad v. DeMonteourt, 138 Mo. 3.11, 325; Schneider v. Railroad, 75 Mo. 295; LeMay v. Railroad, 105 Mo. 362; Morgan v. Mulhall, 214 Mo. 451.] The plaintiff, among other things about which he was employed, was charged with the duty of planing the surfaces of pieces of wood by running them over the top of the knives and tables of this machine, while others were employed to not only keep it in repair, but to instruct him in its operation. Ordinarily the operator knows no more of caring for the mechanism of the machine he uses than one knows of the care of the mechanism of his watch or the automobile he hires at the public garage. He uses the key of the watch to wind it so that it will do its work, and handles the levers of the automobile to regulate its movements. In either case he depends upon the fact that the maker and repairer have taken care that these external appliances will produce the effect for which they are designated.

The evidence presented by the defendant as well as by the plaintiff in this case shows a like relation between the parties to this suit and the machine. The plaintiff claims to have known that it would not have acted as it did unless there was some defect in its parts that reasonably careful construction and maintenance would have obviated. The, defendant not only retained the machine, but kept the stick that was being dressed in it at the time of the accident. Under these circumstances the_ law ought not to make the right of the plaintiff to bring an action,depend upon his ability to state in his petition details which he could only obtain , from the. defendant.

The defendant does not strenuously contend that this petition would not be good if not objected to before the trial, but it does contend with earnestness that having so objected by a motion to make it more definite and certain, before the filing of the answer or the introduction of any evidence, and duly saved its exception to the overruling of that motion, the point has been properly preserved, and may now be retried for the purpose of precluding the plaintiff, from his statutory right to amend had the motion been sustained, and depriving him of a trial. That the ruling of the court was properly objected to, and the objection preserved for use in case an appeal should be taken, by defendant from a final judgment against it on the same petition, does not seem to be questioned, even by plaintiff, but the defendant forgets that the order overruling the motion is the judgment of the court, and although it might be reconsidered and set aside and the motion sustained at any time before trial, the effect of such action would be the same as if the motion had been sustained at its first hearing. It would simply involve the entry of a rule on the plaintiff to make his petition more definite and certain in such respects as the court might indicate. The order overruling the motion is the law of the case until set aside.

II. The order of the court appealed from is founded in the theory that the evidence justified the submission of the case to the jury. If this be true, it must, of course, be affirmed. The facts about which all the evidence on both sides agrees and remains unquestioned, are as follows: (1) It was the duty of the plaintiff, as an employee of defendant, to from time to time as his service required it, use the machine in question to shape pieces of wood to be used in his work. (2) He was not required to nor did he assist in keeping the machine in repair, or in fit condition for use. That was done by the foreman, assisted by such employee or employees as he might call upon for that purpose. (3) The plaintiff-went to the machine with a piece of wood to dress on both sides and to a given thickness. He ran it through the machine, dressing one side. During this operation the back table was up in its proper position level with the top of the knives. Mr. Klassen, an expert witness for defendant, when asked if it was down, answered, “It is impossible.” Plaintiff then ran it over the knives to dress the other side, and the accident happened. The same-witness was asked if the back table was then down, and he answered that it could not have been otherwise. (4) "When examined after the accident the back table was found to be a quarter of an inch lower than the top of the knives, a position of great danger to the operator.

The defendant attempts to explain this sudden subsidence of the back table by saying that it was impossible that the table should have lowered itself by its own weight under the conditions existing, and that the plaintiff, in preparing to make the last cut, lowered the back table by mistake instead of tile front one as he should. The plaintiff answers: Tour theory may be all right, but all theories must yield to the fact, which you admit, and only attempt to account for upon a hypothesis which finds no support in reason or probability. The determination of this question is within the province of the jury.

The fact that set screws were provided to lock the screw jack by the manipulation of which the height of these tables was adjusted, was notice that they were necessary for that purpose, and the fact that the accident happened by reason of the discontinuance of their use would at least call for explanation on the part of the defendant. It recognizes this necessity and attempts to explain by saying that this lock was a “fool’s contrivance; ” that it was designed to prevent a fool from making the mistake which they now attribute to the plaintiff,, of meddling with the back table while he thinks he is adjusting the front one. Reminded of the fact that the same contrivance was provided for the front table, they gave it up. Their explanation implies that whatever may have been the feeling of the humane manufacturers, as for them they only protect the wise, letting the fools, of whom plaintiff was one, take care of themselves. The adjusting device; although a common mechanical one by which power applied by the hand of the operator to the wheel outside the machine is changed inside it to the traverse movement of a screw, pressing upon a lever by which the heavy cast-iron table can be moved upward, or be lowered by reversing the movement, it does its work under peculiar circumstances, sitting, as it does, in a frame being shaken while the machine is in operation by the tremendous force exerted by a heavy iron knife-head revolving at the rate of 75 revolutions per second and striking the wood twice during each revolution. The record does not inform us of the pitch of the thread on the traverse screw, but we do know from common experience, and knowledge, that while the application of the weight of this table while at perfect rest might not reverse the movement of the screw, the rapid and continuous shaking of the weight actually applied would create a different condition, and generate a force with which the operators as well as the manufacturer would have especially to deal. The defendant does not deny that it was its duty to maintain it in a safe condition for those using it, as well as to instruct them how to use it safely. The abandonment of the use of the set screw which locked the back table in position was as clearly a defect in its maintenance as the removal of the screw designed to lock the front table. Whether this abandonment was negligence, and, if. it was, whether the accident resulted from it, were clearly questions for the jury.

So far as the charge of contributory negligence of the plaintiff is concerned, it is founded upon the assertion that he did not examine the position of the back table before he began to use it. The fact that defendant proved by its witness Klassen that the elevation of the back table was all right when he began to plane the same stick, and that this evidence is un-disputed, disposes of that question.

For the reasons stated the judgment of the Jackson Circuit Court setting aside the nonsuit is affirmed and the cause remanded for further proceedings.

Blair, G., concurs in result.

PER CURIAM.

— The foregoing opinion by IIrown, C., is adopted as the opinion of the court.

All of the judges concur.