author: WILLIAMS, C. — PER CURIAM. —

text:
    THE STATE v. MANNIE BANKS, alias GEORGE WILLIAMS, alias TED BANKS, Appellant.
    Division Two,
    May 26, 1914.
    1. HOMICIDE: Self-Defense: Resisting Officer: Instructions Must be Based on Evidence. Where a defendant on trial for killing an officer based his entire defense upon the theory that he shot in self-defense, not knowing that deceased was an of- ■ fleer, an instruction was . properly refused to the effect that, even though defendant knew deceased was an officer, yet if deceased used unnecessary force and means to effect the arrest, and defendant had good reason to believe and did believe that by reason of such unnecessary force the deceased was about to kill him or do him great bodily harm, then defendant had a right to shoot in self-defense.
    2. -: -: Reasonable Fear of Impending Death or Harm: “Unnecessary” Killing. It is error to include in an otherwise correct instruction on self-defense, the statement that if the defendant shot the deceased unnecessarily, there could be • no self-defense in the case. If a person believes he is about to be killed or about to receive great bodily injury, and he has good reason so to believe, then he has the right to shoot in self-defense, even though it should afterwards develop that the appearances were false and that the killing was in fact unnecessary.
    S. WITNESSES: Impeachment of Accused: Evidence of Other Crimes: No Convictions Shown: Affording Cause for Attempted Arrest by Deceased Officer. It is not proper to impeach an accused as a witness by proving. that he has committed other crimes for which no conviction is shown to have occurred. Nor, where accused is charged with having killed an officer, is such evidence admissible to show cause for an attempted arrest without warrant, unless it appear that the officer had knowledge of said crimes and of defendant’s connection with them.

      Appeal from Jackson Criminal Court. — Hon. Ralph S. Latshaw, Judge.
    Reversed and remanded.

      Philip D. Clear for appellant.
    (1) Whenever an officer attempts to arrest a citizen in such a threatening and menacing manner, or by such unnecessary means and force as to reasonably induce an apprehension on the part of the citizen that he is in danger of his life or of great bodily harm at the hands of such officer, the officer becomes a trespasser and invites resistance, and the citizen even though he knows the officer to be fully authorized to make the arrest may repel force with force, even to the extent of taking life, in his own defense the same as if the officer had been a private citizen. State v. Plummer, 135 Ind. 308; State v. Oliver, 2 Houston (Del.), 605; State v. Vann, 45 Tex. Cr. 434; North v. People, 1391 111. 81; People v. Burt, 51 Mich. 199; Simmerman v. State, 14 Neb. 568; State v. Noles, 26 Ala. 31; Reneau v. State, 2 Lea, 7201; Wharton on Homicide (3 Ed.), p. 621; 1 Bishop on Criminal Procedure, sec. 162; State v. Coleman, 186 Mo. 156; State v. Lane, 158 Mo. 587; State v. Jones, 29 S. C. L. 213; State v. Barrett, 170' Mo. 671. (2) The prosecution erred in systematically presenting to the jury a large number of criminal transactions imputing that defendant was guilty of each and all of them, well knowing that none of said alleged offenses were within the knowledge of Howard or Marshall at the time of the homicide, and were not a part of the ground on which said arrest is said to have been made, and well knowing that the imputation to defendant of having committed so many criminal offenses would raise a false issue before the jury, that defendant was a bad, very bad man, and ought to be hung, and would thereby enable him to secure a hanging verdict. This is reversible error. State v. Prendible, 165 Mo. 359; State v. Wellman, 253 Mo. 302; State v. Webb, 254 Mo. 414; 1 Wharton’s Crim. Ev. (10 Ed.), sec. 475; Buell v. State, 104 Wis. 132; State v. Houx, 109 Mo. 663 ; State v. Parker, 96 Mo. 390; 1 Greenleaf on Evidence, sec. 459'.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the.State.
    (1) Instruction 8 told the jury that if defendant did not know deceased was a police officer at the time he shot him, then the killing was justifiable, but if defendant knew deceased was a police officer and shot him in resisting arrest, then there was no self-defense in the case. State v. Duncan, 116 Mo. 312; State v. Cushenberry, 157 Mo. 181; State v. Crafts, 164 Mo. 653; State v. Evans, 161 Mo. 108; State v. Albright, 144 Mo. 644; State v. Puller, 96 Mo. 168; State v. Holcomb, 86 Mo. 381; Keady v. People, 66 L. R. A. 353; State v. Meyers, 33 L. R. A. (N. S.) 144; Anderson v. State, 133 Wis. 610; State v. Spaugh, 200 Mo. 604; State v. Dierberger, 96 Mo. 672; State v. Yaughan, 200 Mo. 1. (2) On cross-examination defendant was questioned with reference to a statement he had signed wherein he stated that he had committed several crimes just previous to the homicide. Objection was made to a recital therein to the effect that defendant had held up two men on Southwest boulevard in Kansas City. This objection was not on account of the testimony relating to a crime other than that for which defendant was being tried, but was because Officer Howard was not aware of the commission of this crime at the time he attempted to arrest the defendant. It is immaterial whether Howard knew of this crime or not. At the time the attempt to arrest defendant was made the officers suspected him of carrying concealed weapons which, proved true. They detected him in the actual commission of a felony. That he was guilty of other felonies unknown to the officers at that time was immaterial. They suspected him of being a felon and had a right to arrest him. They need not have suspected him of any particular felony. State v. Evans, 161 Mo. 108.
   WILLIAMS, C. —

At the September term, 1912, of the criminal court of Jackson county, defendant was tried and convicted of murder in the first degree for the killing of one Robert Marshall, and his punishment assessed at death. The homicide occurred near the corner of Nineteenth and Grove streets, Kansas City, Missouri, at about 11:30 p. m., August 10, 1912. Deceased was a colored policeman. Defendant is a negro and was about twenty years of age at the time.

Just prior to the killing, defendant was standing on the sidewalk, on the south side of Nineteenth street, a few feet west of its intersection with Grove street, talking to one Nadine Monroe, a negro woman, who was standing in an adjoining yard. At this time two negro policemen, the deceased and Thomas W. How-' ard, dressed in plain clothes, were patrolling the street together and came up to where defendant was standing. Officer Howard testified for the State that he was not acquainted with the defendant at the time of the occurrence, but knew him by sight, and that as he and deceased came up to defendant, witness asked the defendant, his name and where he lived. Defendant relied that his name was “Ted Smith” and that he lived -down on Sixth street. The witness saw a big bulge on defendant’s right side, under his waistband, and, on account of this, he told defendant that “they” were police officers and that they wanted to search him and told defendant to throw up his hands. Witness also testified that at the time he told defendant they were officers, “I done my coat like that [indicating.]” Witness further testified that thereupon he started to search defendant, feeling around the defendant with his hand and when his hand touched the bulge under the waistband “it rattled like new leather” and that it felt like a large gun and that he knew it was a gun encased in a leather scabbard. Just as witness’s hand touched the bulge under defendant’s waistband, defendant struck witness with his fist, knocking him down, and then ran down the street toward Grove street and turned south on the west side of Grove street. Officer Marshall, the deceased, pursued the. defendant and was four or five feet behind him as they went around thé corner. A second or two after defendant and deceased turned the corner on Grove street, witness heard one shot. Witness was somewhat “dazed” by the blow but was able to get up and then ran in the direction that defendant and Officer Marshall had gone, and a short distance down Grove street, out in front of a stairway at No. 1910' Grove street, he found officer Marshall dead. All the shots had been" fired out of his gun but the witness did not know whether deceased’s gun was fully loaded at the time the trouble began.

Witness said that they did not have a warrant for defendant’s arrest, but that they had orders to search persons that looked suspicious. Later the witness was recalled and testified as follows: “Well, when Officer Marshall and I came down the street, I was told there was some shooting over in the jungles, that a white man got held up over there in the sand yard. We went over there, and we seen this boy there, and I saw that bulging there. I had kind of a suspicion that he had a gun and I went to searching him. ’ ’

After the witness went down to where the shooting occurred, he went up the stairway and through the building and down the back stairway into the back yard where he made an unsuccessful search for the defendant.

'. Nadine Monroe testified that she was eighteen years old and that she and the defendant had been staying at the Henderson Hotel at Eighteenth and Tracy streets in Kansas City, Missouri, for about a week prior to the shooting; that on the night of August 10,1912, she was talking to the defendant, near the comer of Nineteenth and Grove streets, when the two officers came up and asked defendant his name; that defendant said his name was “Ted Banks;” that Officer Howard disputed the name given and pulled defendant out on the sidewalk and began to search him and that defendant hit the officer and ran, with Officer Marshall in pursuit; that as defendant started to run she heard Officer Marshall call upon him fo “Halt;” that as Officer Marshall was going around the corner she saw him reach for his gun and just as they turned the corner she heard one shot fired but did not know who fired it; that she heard sis shots fired but that she did not go around the corner and did not know who did the shooting; that she immediately went to the Henderson Hotel to defendant ’sxroom and in a short time defendant came to his room. A man by the name of Ward was there and defendant sent Ward to get his clothes and also some beer. Ward returned with the beer and some clothing. A girl named Virginia Childs returned with Ward. Defendant changed his clothing and “put on Ward’s lavender shirt;” that defendant asked Virginia Childs to “come on down and see if the way was clear of the law.” Witness, together with defendant and Ward and Virginia Childs, left the building and went to Fifteenth and Tracy streets and at that place Virginia Childs said to defendant, “I see two laws,” and defendant replied, “I don’t care, did you see what two laws got on Nineteenth and Grove?” Virginia Childs asked defendant how he felt and defendant replied: “I feel like any other man; that wasn’t the first man I ever put off,” and that defendant said: “I don’t care, all I hated, it was a colored man and not a white man.” He further stated that he “hated” to kill a colored man. The party walked to Thirteenth and Main streets, where the Childs woman left them, and defendant and the witness went to the Union Depot and defendant inquired as to what time he could get a train for St. Joe. Upon learning that the next train would not depart until 6:30 in the morning, witness and defendant obtained lodging at a rooming house on West Twelfth street where they stayed until Monday morning, when defendant went away. The witness further testified that at the time the officers attempted to search defendant he had a “gun on him” and that she had seen him, “put it on.”

Virginia Childs testified that just before the shooting, she was standing on the northeast corner of Nineteenth and Grove streets and saw the two officers approach the defendant across the street from her; she could not hear what was said but she saw the officers talking to defendant and saw Officer Howard fall and the defendant run, pursued by Officer Marshall; that defendant ran around the corner and turned into the stairway at 1910 Grove street. Witness did not know how many shots were fired but stated that most of them were fired by Officer Marshall and that she thought Officer Marshall fired the first shot; she did not know whether deceased shot to hit defendant; that she ran across the street toward the stairway up which defendant had gone and that she heard deceased say “Come out” once, and that she also heard him say “Bring me a light, Maud.” That a short time after defendant went into the stairway she saw a flash from defendant’s gun and saw deceased fall. The witness afterwards saw two bullet holes in the door near the stairway. After the shooting, the witness and a man by the name of Ward went down to the hotel where defendant was staying and that defendant said he was going to St. Joe; that at defendant’s request she went down “to see if the coast was clear of the law” and that they then walked to Thirteenth and Main streets; that on the way down the street, defendant said he “hated to kill a colored man” and that he “could have gone over the stairway without doing it” hut that “the man had called him a black s— of a b— and shot at him.” That after the shooting, defendant had a “big gun” with him. Witness also testified that at the time of testifying she was under a ten-year sentence for robbery and was being detained at the jail until she could be taken to the penitentiary.

Lilly Marshall testified that on the night of the homicide she was sitting out on the front porch at 1910 Grove street, about 11:30' p. m., and saw the defendant come running around the corner with the deceased running after him and that deceased ordered defendant to halt and fired a shot in the direction of defendant and that thereupon defendant turned into a nearby hallway and ran up the steps. Deceased then fired two more shots and asked the witness for a light. Witness took a lamp to the door and deceased exclaimed “Look out.” Witness shut the door and then heard two shots fired after that; that defendant fired two shots and that she then heard him go down the back stairs; that the witness then returned to the front door and found Officer Marshall dead. After deceased quit shooting, the witness heard two shots fired from the stairway.

J. L. Ghent, a city detective, testified that he, with twelve other officers, arrested defendant at 1410 West Twelfth street in Kansas City; that the defendant made no resistance to the arrest after seeing the number of officers that were present; that after defendant was taken to headquarters he admitted that he had shot Officer Marshall and that the reason he had shot him was because he did not know that he was a police officer and that as he went in the stairway he fell and fired one shot at the bottom of the stairway and then ran up the steps and fired another shot down the steps; that a 38 Colt’s revolver was found in defendant’s room when he was arrested and that defendant said the gun and scabbard were his and that he always wore it around his waist and kept the gun down inside of his pants. The revolver and scabbard were produced at the trial and identified by the witness.

Dr. Czarlinsky, the Coroner, testified that in'his official capacity he viewed the dead body of Officer Marshall on August 11, 1912, and found the bullet wound upon the body of the deceased about two inches below the collar bone and about one-half inch to the right of the middle of the breast, and that a post-mortem examination showed that the bullet had pierced the ascending aorta and had dropped into the pleura cavity and that the pleura was filled with blood, indicating that deceased had died from the effects of the bullet wound.

Alexander' J'ohnson, a city detective, testified that defendant told him that, “He killed Officer Marshall and that if he had been out he was going back to kill Officer Howard; that he was after Officer Howard more than he was after Officer Marshall.”

Defendant took the stand in his own behalf and testified that he was a laborer and that on the night of the trouble he was standing near the corner of Nineteenth and Grove, talking to Nadine Monroe, when the deceased and Officer Howard approached; that he had never seen either of them before' and did not know that they were police officers or officers of any ldnd. That neither of said officers told him that they were police officers or that they were officers of any kind and that Officer Howard did not show him his star; that Howard asked him his name and that he replied, “Ted Banks;” Howard then said, “That isn’t your name,’’ and'said: “Throw up your hands, let us see what you have got on you;” and that Howard then caught him by the arm and “snatched” him out on the sidewalk and told Mm to throw np Ms hands and commenced to search him and that while Howard had one hand behind him and one hand in front of him, defendant knocked him down. Defendant admitted that, at the time, he had a gun in his left-hand coat pocket and had a paper bag over the muzzle of it but that Howard did not touch his coat pocket in making the search. Defendant testified that on account of the rough way in wMch he was being handled, he thought Howard was going to rob him and that after Howard had jerked Mm, he struck Howard with his left hand, knoeMng Howard down, and turned and ran; that just after he started to run a shot was fired by Marshall; that after he ran around the corner he ran into a doorway and stumbled and fell over the first step of the stairway inside. The steps were about three feet inside of the doorway; that, as he fell, his gun dropped out of Ms pocket and that as he started to get up deceased ran up to the doorway and fired two shots at him. Deceased was about to fire another shot at Mm and that he then started to back up the' stairway with Ms gun in his hand; that up to that time deceased had fired three shots and that as deceased pointed his gun at the defendant to fire the fourth time defendant pointed his gun toward the deceased, but that the deceased shot so quick that it scared defendant and prevented him from shooting; that defendant had backed up the stairway about three steps and that deceased was in the act of shooting again when the defendant shot his first shot which missed the deceased and that he then fired a second shot which hit the deceased; that the deceased never told him to halt and that just before the deceased fired the last shot he said to the defendant, “You black s— of a b — , I’ll kill you,” and that deceased said nothing else during the time; that seven shots were fired, five by deceased and two by defendant.

Defendant testified that when Officer Howard first came up to him and asked him his name he (Howard) talked like a man that was drunk; that after the shooting he went to the hotel at Eighteenth and Tracy streets. He denied all of the conversations attributed to him by witnesses Nadine Monroe and Virginia Childs. He changed his clothes upon going to his room; that he stayed in Kansas City until he was arrested and went out on the street every day and every evening as usual. He also denied making the statement to Officer Ghent to the effect that he wished that he had killed Officer Howard instead of Marshall.

On cross-examination, defendant was handed a written instrument marked “Exhibit B,” which purported to be signed by him, and he was asked if the signature was his and he replied that it was. Thereupon, over the objection and exception of defendant, the State was permitted to read into the evidence the signed statement of defendant which was as follows:

“K. 0. MO. 9/3/1912. Prom Teddie Banks. Ward and I pulled off a job worth $55' out on the Santa Pe railroad just below where the Independence car crosses the track, these people were colored, one of the men there was blind, the old woman was old and had one eye and the man was old and sick, at the time which was the 4 or 5 of Aug, or on the night it rained so bad in the early part of the month. We also pulled off two or three jobs of highway robbery around Tracy and 19th and Harrison sts, dates I don’t remember but they was in July last past and 1st of Aug, This house was on the south side of the track near the sand yard, below the show grounds. We also held up two men on the Southwest Boulevard on the bloofe driveway near Allen ave, and two on the 24th st during July 15, 16 or 17, or near that part of the mo. ’ ’

Defendant admitted on cross-examination that in October, 1909, he was convicted for an assault with intent to kill at Atchison, Kansas, under the name of Greorge Williams, and that later he was convicted of burglary in Toledo, Ohio, under the name of John Davis.

I. Appellant contends that the court erred in refusing defendant’s instruction numbered 5. This instruction embodied the proposition that even though defendant knew deceased was an °fficer> yet if deceased used unnecessary force and means to effect the arrest of defendant, and that defendant had good reason to believe and did believe that by reason of such unnecessary force the deceased was about to kill him or do him great bodily harm then defendant had a right to shoot deceased in self-defense.

Section 5121, Revised Statute 1909; provides that “If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.” But the officer is not justified in using unnecessary force in making an arrest. The rule with reference to the right of the person sought to be arrested to resist unnecessary force on the part of the arresting officer is stated by an able writer, as follows:

“An officer seeking to make an arrest may only use such force as is reasonably necessary to subject the person sought to be arrested to his authority; and where he goes further, and uses unnecessary force, the rule applicable to a private individual attacked by another, that if a person believes, or has reason to believe, that he is in danger of receiving great bodily harm, he may defend himself to a reasonable extent, applies. ... A person sought tó be arrested may oppose a felonious aggression in the execution of the arrest, even to slaying the officer when necessary to save his own life, or to save himself from serious bodily harm.” [Wharton on Homicide, (3.Ed.), p. 621, sec. 401.]

While it will he seen from the above authority that defendant’s instruction is correct as an abstract proposition of law, yet we have come to the conclusion that the testimony in this case is not such as to call for the giving of said instruction. The theory of the State was that defendant shot the deceased while knowingly resisting a lawfully attempted arrest. The theory of defendant was that he shot in self-defense, not knowing that the deceased was an officer undertaking to arrest him. In a proper case, where the evidence showed that the defendant knew the aggressor was an officer attempting to arrest him and that the officer used unnecessary force in so doing, and that defendant believed and had good reason to believe, that he was about to be killed or about to receive great bodily in-' jury by reason of such unnecessary force, and shot to defend himself against such unnecessary force, such an instruction would be proper, but where, as here, there is no. sneh evidence; but on the other hand the entire defense is based upon the theory that defendant did not knotv the aggressor was an officer, attempting to arrest him, the evidence does not justify the giving of such an instruction.

The court did instruct on self-defense, based upon the theory that defendant did not know the deceased was an officer. That instruction will be discussed in the following paragraph.

II. Instruction numbered 8 given by the court on self-defense was as follows:

“The court instructs the jury that if they find and believe from the evidence in this case that the defendant, Mannie Banks, alias Ted Banks, did not know that the deceased, Eobert Marshall, was a police officer at the time that the defendant shot deceased (if you find from the evidence that the defendant did shoot deceased), then the defendant had the right to shoot deceased if apparently necessary to save defendant as defined in instruction No. 9. The court further instructs the jury that if the defendant shot Robert Marshall unnecessarily, or in knowingly resisting a lawful arrest, attempted in a lawful manner there can be no self-defense in the case.”

Instruction numbered 9 to which reference is made in the above instruction, was in the form of the usual self-defense instruction.

It will be noticed that by instruction numbered 8, the jury were told that “if the defendant shot Robert Marshall unnecessarily . . . there can be no self-defense in the ease.” This constituted error. By this portion of the instruction, defendant was virtually deprived of his right to act on appearances if he had good reason to believe and did believe that deceased was about to kill him or do him great bodily injury. It is true that in the first part of instruction numbered 8, and also in No. 9, the jury were told that if defendant had good reason to believe and did believe that deceased was about to kill him or do him great bodily injury that then the defendant had the right to shoot in his own defense, yet the clause above referred to, in effect, flatly contradicts his right to act upon appearances, and in a way nullified the other portions of said instructions. [State v. Darling, 202 Mo. 150, l. c. 165.] If a person believes he is about to be killed or about to receive great bodily injury and he has good reason to so believe then he has the right to shoot in self-defense, even though it should afterwards develop that the appearances were false and that the killing was, in fact, unnecessary. To hold that killing in self-defense could only occur when absolutely necessary would be to deprive defendant of his right to act upon appearances and thereby, in a large measure, destroy the right of self-defense. [State v. Sloan, 47 Mo. 604.]

III. Over the objection and exception of defendant tbe court permitted the State to read the written statement “Exhibit B,” which tended to prove ^.at defendant, at other times, had committed the crime of robbery. The crimes referred to in said statement were separate and distinct from the crime for which defendant was being tried. As a general rule, it is well settled that evidence of separate and isolated crimes is not admissible to prove the commission of the crime for which the defendant is being tried. [State v. Spaugh, 200 Mo. 571.] There are certain ’well-defined exceptions to this general rule, however (not necessary to here state or discuss), and when evidence of other crimes is admissible for any purpose, it will not be excluded because it may also prove the commission of another crime. [State v. Gordon, 253 Mo. 510.] Also when the defendant becomes a witness it is proper to prove his conviction of other crimes. This is made so by statute on the ground that it affects the credibility of the witness. [Sec. 6383, R. S. 1909; State v. Blitz, 171 Mo. 530.] But it is not proper to impeach the defendant as a witness by proving that he committed other crimes in which no conviction is shown to have occurred. [State v. Vandiver, 149 Mo. 502; State v. Spray, 174 Mo. 569; State v. Phillips, 233 Mo. 299.] From the record in this case it appears that the trial court was of the opinion that this evidence was admissible as showing cause that the deceased officer may have had in attempting to arrest defendant without a warrant under the rule discussed in the case of State v. Spaugh, 200 Mo. 571, l. c. 595-596. But the facts in the present case are not such as to call for the application of the exception to the general rule announced in the Spaugh case. In the present case there was no showing made that the deceased officer knew of, or had any knowledge concerning, the commission of these other crimes, or of defendant’s connection therewith, at the time of the attempted arrest, but the evidence shows that the arrest in the present case was attempted because the officers saw the “bulge” under defendant’s waistband and suspected that he was thereby committing a felony, to-wit, carrying concealed weapons.

Under the facts developed in the present case, said Exhibit “R,” was not admissible for any purpose, and the court, therefore, committed error in admitting the same over defendant’s objection and exception.

The judgment is reversed and the cause remanded.

Boy, G., concurs.

PER CURIAM. —

The foregoing opinion of "Williams, 0., is adopted as the opinion of the court.

Walker, P. J., and Brown, J., concur; Faris, J., not sitting.


source: Caselaw Access Project

author:
ROY, C. —
      PER CURIAM. — WILLIAMS, C. —

license: Public Domain

text:
    LOUIS C. WALKER v. JAMES D. GARNER, Appellant.
    Division Two,
    May 26, 1914.
    1. CONVEYANCES: Discrepancy: Metes and Bounds: Quantity: Partition. Where the report of commissioners, upon which a decree in partition was based, set off to the widow for dower and homestead eighty-two acres, to an heir thirty-three acres, and to another heir sixty-eight acres, and the surveyor for the commissioners, preparatory to making the report, surveyed the tract and set stakes at points inclosing eighty-two acres for the widow, it is held, despite the fact that the metes and bounds set out in the report called for a larger acreage, that the allotment was for eighty-two acres — the fact being also that to allow to the widow the larger allotment would necessitate a reduction of the other shares described in the report as including thirty-three acres and sixty-eight acres.
    2. --: -: Ejectment: Relief at Law. If a part of a description of lands is inconsistent with other parts, and the remaining part is sufficient to designate the land, a court of law will in an ejectment suit disregard the false description and give effect to the other calls without sending the parties into equity to correct the instrument.
    3. -: -: Metes and Bounds: Quantity: Monuments: Fences. Where a discrepancy exists between the metes and bounds and the call for acreage in a report of commissioners ■ in partition, and there is evidence that the surveyor for the, commissioners set stakes and defendant and another replaced the stakes with stones, and the evidence is uncontroverted that a fence was long ago placed on the line of the stones, where it still stood at the time of the trial, the call for acreage, coinciding with the position of the fence, will prevail over the description by metes and bounds.
    4. -: -: -: -: Sheriff’s Deed: Puchaser’s Title. Where the interlocutory decree in a partition suit described the land affected as the homestead and dower allotted to a widow by an earlier decree in partition, and described it as amounting to eighty-two acres, although the metes and bounds given would have inclosed more than eighty-two acres, and the sheriff’s deed to the purchaser at the partition sale gave the same metes and bounds with no call for acreage, it is held that the deed passed only the quantity comprised in the homestead and dower tract, or eighty-two acres, the widow having long held possession of that actual amount of land under the earlier decree in partition. [FARIS, X, and WILLIAMS, C.,a dissenting.]
    Appeal from Clay Circuit Court. — Hon. Francis H. Trimble, Judge.
    Reversed.

      James W. Garner and Marlin E. Lawson for appellant.
    (1) Tbe strip of land now in question could not be sold by tbe sheriff in any event, because tbe court bad no jurisdiction to order it sold. Tbe pleadings in tbis case admit that appellant alone was in possession adversely of tbe strip sued for when tbe partition suit of Cbappell v. Garner was filed.' Therefore, not being held in common, and tbe other parties having no possession in said strip, it could not be sold in paxtition. Chamberlain, v. Waples, 193 Mo. 96; Estes v. Nell, 1401 Mo. 639. (2) The respondent Walker is conclusively presumed to have had notice of the proceedings in the case in which the land was sold, and of the recital in the pleadings and proceedings therein as to the number of acres set out and ordered to be sold, and that it was the homestead and dower tract set out to Letitia A. Garner. The interlocutory judgment controls what land may be sold or divided. The authority of the sheriff was limited thereby. Swisher v. Pemberton, 249 Mo. 209 ; Loring v. Groomer, 110 Mo. 642; Clark v. Cooper, 148 Mo. App. 230. (3) The respondent cannot rely upon estoppel, because he does not claim to have been misled by the proceedings, nor does he claim that the appellant said or did anything to mislead or deceive him. The court records were open to respondent. Bates v. Perry, 51 Mo. 449; Throckmorton v. Pence, 121 Mo. 50; Konta v. Stock Exchange, 189 Mo. 39. (4) To estop appellant, respondent must have relied upon the actual description set out in the notice of sale and must have been misled thereby. This was a judicial sale and the record showpd the true facts. Respondent knew the dower tract and where the fence was. He heard announcement that it was the homestead and dower tract of Letitia A. Garner, containing 82 acres, or as he says “about 82 acres,” after the notice of sale was read and in explanation thereof, and prior to his bids at the sale. Roseneranz v. Dry Goods Co., 175 Mo. 518; Harrison v. McReynolds, 183 Mo. 533; Konta v. Stock Exchange, 189 Mo. 26. (5) The appellant is not estopped to set up the mistake of the surveyor in making the plat which did not actually show the land set out, by reason of having been a party to the partition suit of Chappell v. Garner. There was no false representation or concealment of facts made by Garner, with knowledge of the falsity. Mere silence, even had he known of the error, would not estop him.. Blodgett v. Perry, 97 Mo. 263; Bright v. Miller, 95 Mo. App. 270. (6) A partition sale is a judicial sale and a purchaser buys only what can be sold under the' decree. Burnham v. Hilt, 143 Mo. 421; MeNamee v. Cole, 134 Mo. App. 266; Swisher v. P'emberton, 249 Mo. 209; 17 L. R. A. (N. S.) 1011. (7) To estop appellant from setting up title to his own property it must appear that he was guilty of fraudulent conduct or was grossly negligent, and that Walker, ignorant of the facts, relied on appellant’s acts or statements. Bright v. Miller, 95 Mo. App. 270. (8) Silence, without knowledge, works no estoppel. Garner was ignorant of error, and made no statement at the sale. The only statement made was by the attorney for plaintiff in that suit. Harrison v. McReynolds, 183 Mo. 533; Spence v. Renfro, 179 Mo. 417. (9) .The sale of land by the sheriff, of land not included in the decree of sale in Chappell v. Garner, did not convey any title' thereto. The decree expressly ordered the late homestead and dower of Letitia A. Garner sold. Burnham v. Hilt, 143 Mo. 414; Swisher v. Pemberton, 249 Mo. 200; Martin v. Pace, 6 Blackf. 99; Peake v. Renwick, 33 L. R. A. (N. S.) 413. (10) All the parties at the last partition sale, and the purchaser knew that the homestead and dower tract as set out in the former partition suit was being sold, and they all knew where the tract was, and how it was fenced, and so there was no mistake or misunderstanding between them. Respondent bought to the fence, the true line of the homestead and dower tract, described in the decree. Thompson v. McClernon, 142 Mo. App. 429. (11) Respondent’s claim that he bought relying on the description contained in the notice alone, is not reasonable. He knew, and for many years had known the land in question, the dividing fence, and the whole situation. Clark v. Cooper, 148 Mo. App. 230. (12) The plat of the homestead and dower, marked “C,” was a part of the report of the commissioners in the first partition suit, and was referred to in the decree of sale under which respondent bought at the second partition sale. It shows the error on its face. Consequently he had notice of that fact, because the notice of sale referred to the decree, which in turn described the land as that set out as homestead and dower in the first proceeding. Campbell v. Wood, 116 Mo. 196; Cragin v. Powell, 128 U. S. 691.

      Ralph Hughes and Simrall & Simrall for respondent.
    (1) The appellant, by accepting the proceeds of the sale in partition, ratified and adopted the sale as made by the sheriff and is estopped from denying that the respondent is now the owner of all the real estate sold by the sheriff at such sale and described in the deed to respondent. Hector v. Mann, 225 Mo. 228; Fischer v. Siekman, 125 Mo. 165; Cadematori v. G-auger, 160 M!o. 352; McClanahan v. West, 100 Mo. 323; Sec. 2596, R. S. 1909. (2) In proceedings in partition the sale is by the act of the parties themselves as well as by a judgment and is not a sale in invitum like an ordinary sheriff’s sale under execution. It does not matter who are the petitioners, the parties are all before the court in a proceeding for the benefit of all and may be all considered as petitioners or plaintiffs. Pockman v. Meatt, 49 Mo. 345; Cochran v. Thomas, 131 Mo. 258. (3) The land sold in partition in the case of Chappell v. Garner and conveyed to respondent was particularly described by metes and bounds and such description controls, in determining the land conveyed, over a call for quantity found in the petition and decree but not in the notice of sale or in the deed. Hendricks v. Vivion, 118 Mo. App. 417; Campbell v. Johnson, 44 Mo. 248 ; Baker v. Clay, 101 Mo. 553-. (4) Where a ease is tried by the court, a jury being waived, and no declarations of law. are asked or given, if there is any substantial evidence to support the judgment it will be affirmed, and questions of fact will not be reviewed. Holker v. Hennessey, 141 Mo. 527; Miller v. Breneke, 83 Mo. 163 ; Bethune v. Railroad, 139 Mo. 580; Sommer v. Bryson, 168 Mo. App. 335; Jordan v. Davis, 172 Mo. 599. (5) Where appellant testified that the fence was supposed to be on the true line and he was claiming up to the fence because he supposed the fence to be on the true line, his possession though for more than ten years is not adverse. Foard v. McAnnelly, 215 Mo. 372; University' v. McCune, 28 Mo. 481.
   ROY, C. —

This is an ejectment suit in which the plaintiff recovered judgment and defendant has appealed.

In the spring of 1883, the exact date not given, in a partition suit among the widow and heirs of James C. Garner, the commissioners made a report which contained the following:

“Homestead.
“Quantity and quality being by us relatively considered, we first set off and delivered unto said Letitia A. Garner her homestead in all said real estate, including therein the mansion house of said James Con-noway Garner, deceased, at the time of his death — to the value of fifteen hundred dollars, which homestead is situated in the county of Clay aforesaid, and consists of the parcel and is meted, bounded and described as follows:
“It is a part of the southwest quarter of section number 33 in township number 54 of range number 32, containing 38 acres, thus bounded, viz.: Beginning at a point on the west line of said section number 33 which is 50 poles north from the southwest corner of said section number 33, tbence running east 80 poles to a point thence north 76 poles to a point, thence west 80 poles to a point on the west line of said section number 33, and thence south on said west line to the point of beginning. To have and to hold the said parcel unto said Letitia A. Garner for and during her natural life as and for her1 homestead in all the real estate mentioned in said judgment and decree.
“Dower.
“And having set off and delivered the said homestead, and finding that said Letitia A. Garner was, besides, entitled to dower, we did, next, assign, ad-measure and deliver unto said Letitia A. Garner, quantity and quality being by us relatively considered, as and for her dower in the real estate mentioned in said judgment and decree, a parcel thereof which we appraised at the value of fifteen hundred dollars, and which parcel is situate in the county of Clay aforesaid, and is meted, bounded and described as follows, viz.:
“It is a part of the southwest quarter of section number 33 in township number 54 of range number 33, thus bounded, viz.: Beginning at the southwest corner of said section number 33, thence running east over the south line of said section number 33 a distance of 108 poles to a point on said south line, thence north 126 poles to a point, thence west 28 poles to a point, said point being the northeast corner of said dower, thence south 76 poles to a point, thence west 40 poles to a point on the west line of said section number 33, and thence south, over said west line, 40' poles to the point of beginning containing 44 acres; to have and to hold the said parcel unto said Letitia A. Garner for and during her natural life as and for her dower in all the real estate mentioned in said judgment and decree.
“And having set off and delivered said homestead and assigned and admeasured and delivered said dower, we did next part, divide, set off and deliver all the residue of all the real estate mentioned in said judgment and decree, first charging the said Mary Simms, Jane Deshon, Amanda Garner and' James D. Garner with the amounts ascertained and declared in said order and decree as follows:
“First.
“We, first, quantity and quality being by us relatively considered, parted, divided, assigned and delivered unto said Louis B. Garner . . .
“Second.'
“We next, quantity and quality being by us relatively considered, parted, divided,, assigned and delivered unto the said Amanda Garner . . .
‘ ‘ Third.
“We next, quantity and quality being by us relatively considered, parted, divided, assigned and delivered unto the said Mary Simms and Richard A. Simms, her husband, in right of the said Mary (having charged the said Mary Simms with the sum of six hundred dollars, as directed by said judgment and decree), the certain parcel of said residue of said real estate appraising the same to he of the value of nine hundred dollars situate in said county of Clay, containing 33 acres, and meted, bounded and described as follows, viz.: It is a part of the southwest quarter of section number 33 in township number 54 of range number 32, thus bounded, viz.: Beginning at the center of said section number 33., thence running west, over the subdivisional line, 80 poles to a point on said subdivisional line, thence south 34 poles to the northeast corner of said' homestead tract, thence east 28 poles to the northeast corner of said dower tract, thence south over the east line of said dower tract 46 poles to a point in said east line, thence east 52 poles to a point on the snbdivisional line, and thence north 80 poles over the subdivisional line to the point of beginning: To have and to hold the said parcel, in severalty, unto said Mary Simms and Richard A. Simms, her husband, in right of said Mary, forever, as and for their full share, part and purpart of all the said residue of said real estate.
“Fourth.
“We next, quantity and quality being by us relatively considered, parted, divided, assigned and delivered unto said James D. Garner (having charged him with the sum of three hundred dollars as directed in said judgment and decree), the certain parcel of said residue of said real-estate, appraising the same to be of the value of twelve hundred dollars, situate in said county of Clay, containing 68 acres, and meted, bounded and described as follows, viz.:
“It is the southwest quarter of the southeast quarter, and a part of the southwest quarter of section number 33 in township number 54 of range number 32, the whole parcel bounded as follows, viz.: Beginning at a point on the south line of said section number 33, which is distant 108 poles from the southwest corner of said section number 33, which point of beginning is the southeast corner of said dower tract, thence running east over said south line, a distance of 132 poles to the southeast corner of said southwest quarter of the southeast quarter of said section number 33, thence north, over the subdivisional line, 80 poles to the northeast corner of said southwest quarter of the southeast quarter of said section number 33, thence west 132 'poles to a point on the east line of said dower tract, thence south, over said east line, 801 poles to the point of beginning. To have and to hold the said parcel, in severalty, unto said James D. Garner, his heirs and assigns, forever, as and for his full share, part and purpart of all the said residue of said real estate. ,
“Fifth.
“And next, quantity and quality being by us relatively considered, we parted, divided, assigned and delivered unto said Jane Deshon and Thomas 0. De■shon, her husband, in right of said Jane . . .
“And we annex hereto (and make part hereof) plats of the said lands situate in said counties of Clay and Clinton, respectively marked C and D, showing the location of said lands, their outlines, the said homestead, dower, and parcels assigned, with their situation with reference to each other, and other matters illustrative of this report.
“And we further make report that in the execution of our trust under said judgment and decree and in the making and acknowledgment of this report we were engaged three days; that we were compelled to employ the professional services of Reuben J. Stepp, Surveyor of Clay county, in making measurements and areas and running lines, for the period of three days j?

The plat referred to is as follows: [See dissenting opinion, post, p. 518.]

That report was confirmed by the court, and a decree in partition was made in accordance with it.

Upon the death of the widow, one' of the heirs brought suit for partition of the land allotted to her, in which the other heirs, including this defendant herein, were made parties. The petition in that case contained the following:

“That thereafter a proceeding was instituted in the circuit court of Clay county, Missouri, lawfully having jurisdiction thereof, to set out the homestead and dower of said Letitia A. Garner in all the real estate of said deceased, which proceeding was entitled ‘Letitia A. Garner et al. against James J>P Garner et al.,’ and therein such proceedings were had, that thereafter commissioners were appointed, .qualified and performed the duties assigned by the court, setting out to said Letitia A. Garner, the following real estate, in Clay county, Missouri, towit: For her homestead, part of the southwest quarter of section number 33 in township number 54 of range number 32 containing 38 acres, thus bounded, viz.: Beginning at a point on the west line of said section number 33, which is '50 poles north from the southwest corner of said section number 33, thence running east 801 poles to a point, thence north 76 poles to a point, thence west 80 poles to a point on the west line of said section number 33, thence south on said west line to the point of beginning.
“For her dower: Part of the southwest quarter of section number 33, in township number 54 of range number 32, thus bounded, viz.: Beginning at the southwest corner of said section number 33, thence running east over the south line of said section number 33 a distance of 108 poles to a point on said south line, thence north 126 poles to a point thence west 28 poles to a point, said point being the northeast corner of said dower, thence south 76 poles to a point, thence west 801 poles to a point on the west line of said section number 33, thence south over said west line 50 poles to the point of beginning, containing 44 acres. The two- tracts thus set out to Letitia A. Garner, being thus together described, towit: Beginning at the southwest corner of section number 33, in township number 54, of range 32, and running thence east 108 poles, -thence north 126 poles, thence west 108 poles, and thence south 126 poles to the beginning, all in Clay county, Missouri.
“That said court approved the action of said commissioners and the same became binding forever, all the above-named heirs being made parties thereto, duly served with process, and each receiving his or her share of the real estate of deceased.
“Plaintiffs farther state that Letitia A. Gamer entered into possession of said real estate so set ont to her and held the same daring her lifetime, which ended at her death on October 18, 1906; that subject to' said lifetime interest the five children of James C. Garner, deceased, owned said real estate in fee simple by inheritance as aforesaid.”
The defendant in this case made default in that case, and interlocutory decree of partition and order of sale entered, in which the land was described and the facts found as in the petition. At the sale made under that order the plaintiff herein became the purchaser and received sheriff’s deed for the land. In the notice of sale and in the deed the land was described as follows:
“Beginning at the southwest corner of section No. 33, in township No. 54, of range No. 32, and running thence east 108 poles, thence north 126 poles, thence west 108 poles, thence south 126 poles to the beginning. ’ ’

It will be noticed that there is a discrepancy between the metes and bounds of the dower tract as described in the above documents. If the metes and bounds are to control the construction, there are 47.05 acres in the dower tract; and the amount allotted to the defendant is reduced to 66 instead to 68 acres, and Mrs. Summers’ tract is reduced from 33 to 31.95 acres. On the other hand, if the acreage is to control the metes and bounds as shown in the report of the commissioners the east line of the dower tract is only 104 instead of 108 rods east of the section line.

There is a fence separating the enclosures of plaintiff and defendant. That fence runs in a straight line, and is 61 feet less than 108 poles east of the section line at the north end of the dower tract, and is 40 feet less than 108 rods east of the southwest corner of the section. The controversy is over the sonth end of that strip.

The petition herein described the land in controversy as follows: “Beginning at a point 108 poles east of the southwest corner of section 33, township- 54, of range 32, thence north 1101.21 feet, thence west 51.12 feet, thence south 36 minutes east 1101.30 feet, thence east-40 feet to the point of beginning, containing about one and one-seventh acres more or less. ’ ’

The answer, after setting out the proceedings in the first partition and the filing of the report of the commissioners therein, proceeds as follows

“That said action of said commissioners was approved and confirmed by this court on the first day of September, 1883; that the said commissioners marked off and drove stakes at the corners of said tracts; that one stake was driven at the southeast corner of said dower tract, and another stake was driven at the northeast corner thereof as laid off and designated by said commissioners; that a fence was built fróm one of said stakes to the other along the east line of said dower tract and stones were planted in place of said stakes as permanent markers of said line; that the fence has remained to -this day in the same place as it was originally built in 1883; that the stone at the north end of said fence is still standing but that at the south end has been destroyed by parties working roads; that when Reuben Stepp, then county surveyor, attempted to describe the lands thus set out for said commissioners, he made a mistake in describing the said dower tract by which the same was made to extend beyond the tract actually set out, and by which, instead of containing forty-four acres as desired by and set out by said commissioners it was made to appear to contain by its description forty-seven and 5/100 acres, although it was plainly marked “forty-four” acres; that the length of the south and north lines of said tract set out for dower was erroneously stated by said surveyor, and did not state the action of said commissioners; said surveyor also erred and by said description placed said land in range tbirty-three, when it was in range thirty-two.
“The defendant further states that immediately after the said report of commissioners was confirmed, Letitia A. Garner (who was the mother of this defendant) took actual and exclusive possession of said dower and held the same openly and adversely, continuously and peaceably from that time to the time of her death, October 18, 1906; that after her death a suit was filed in this court to partition and sell said dower and homestead lands above described, which was entitled “Amanda Chappell et al. v. James D. Garner et al. No. 5910,” in which said land was ordered to be and was sold for the purpose of partition, and at said sale plaintiff Louis C. Walker bought the same; that at the time of the public sale by the sheriff in said partition suit, said fence along the east line of said dower tract was in place as originally built on the line marked out by said commissioners, correctly showing the east line thereof, and that plaintiff knew said land intimately and had so known it for many years, and knew he was buying only to said fence; that the order of sale under which plaintiff bought as aforesaid described said homestead tract as being 38 acres and said dower tract as being 44 acres, and at said sale it was publicly announced before the sale that the whole tract to be sold contained 82 acres, and that the tracts lying west of said fence so sold contain more than 82 acres.
“Defendant further states that in the same suit in which said homestead and dower were set out, as aforesaid, to Letitia A. Garner, there was also set out to the children of James 0. Garner, deceased, different lands as their shares in said estate; that the lands lying east of said dower tract were set out to defendant James D. Garner and Mary Simms, defendant getting the south eighty poles of said tract east of said dower tract and Mary Simms the residue thereof; that the line so marked out by said commissioners and designated by stakes (being the line on which said fence was built) was agreed to between said James Gamer, Mary Simms and Letitia A. Gamer as being the true line between them, and they built their said fence accordingly and during all the years since intervening have recognized said fence as such true line, and have each claimed to own the land up to such fence; that each such owner and those claiming under them (except this plaintiff) have had and held possession up to said fence adversely, openly, continuously and peaceably since said partition was made, towit, for more than twenty-five years; and that plaintiff now owns the lands set out to said Mary Simms.
“Defendant further states that all the heirs of James C. Garner knew the line of the lands set out to Letitia A. Gamer aforesaid, and also the line of the lands set out to said James D. Gamer and Mary Simms, and ever since 1883 concurred in said agreed line as being the true line between said lands, and that plaintiff holds under said heirs and holds their title only, and is estopped to claim beyond said true line as marked by said fence.
“Wherefore, defendant, having fully answered, asks to go hence without day, and with his costs herein expended.-
“And defendant prays that the description in the said report of commissioners setting out dower to said Letitia A. Garner may be reformed and corrected so as to correctly show the actual facts and so as to describe the land actually set out to- her by them; and for all further proper relief in the premises.”

The reply denies the facts alleged in the answer except as admitted in the reply, and alleges that the defendant herein was a party to the second partition and received his share of the proceeds of the sale of the land and is estopped from elaiming any interest in the land.

Shortly after the parchase by the plaintiff, the defendant herein desired to get a description of a graveyard and employed the county surveyor, Mr. Barnes, to survey it. In doing so he ran the south boundary of the dower tract and found the fence to be less than 108 poles from the corner of the section. Mr. "Walker then had the line run north and south 108 polés east of the section line, fully revealing the discrepancy as above stated.

Mr. Barnes testified for the plaintiff that he surveyed the land and found a stone at the north end of the fence and further testified:

“The fence did not run straight south from that point to the south line of the section. It varied thirty-six minutes to the east. I did not find a stone at the south end, nor any stone eighty poles north of the south end where an old fence had been. I didn’t specially look for a stone at that point. The fence was a barbed wire fence and seemed to be old, had probably been there eight or ten years.”

The defendant testified that the surveyor at the time of the partition in 1883 planted stakes on the east-line of the dower tract at the north and south ends thereof, and also one at the northwest corner of defendant’s tract, and that in that same spring or summer, he and Mr. Hall planted rocks where those stakes were, that a fence was built that summer on the line of those rocks, and that the fence had been in the same place ever since. He stated that the two north rocks were still there, and that, the one at the south end had been removed by the opening and grading of a road. He also testified that at the partition sale the description of the land was read and that the announcement was made that it contained eighty-two acres, and that the plaintiff had always lived about three-quarters of a mile west of him.

The plaintiff testified as follows:

“At the sale, Mr. Lawson read the description of the land, and he said there was about eighty-two acres in that boundary. He read the boundary first and said it contained about eighty-two acres. I wasn’t paying for eighty-two acres, I was buying the eighty-five acres, what I figured it. I didn’t pay any attention to the statement as to there being about eighty-two acres. I didn’t make any statement to Mr. Garner about an error at the time of the sale. I didn’t see any mistake.”
Also: “I didn’t look at the decree in this court or ask anybody else to look it up for me. I never saw nobody. I seen the notice in the newspaper. I had lived up there for a great many years. I knew of the tract that was being sold. I had been over it. I knew where the fences were around it.
“Q. When you bid, you bid with the idea you were getting the tract east of the fence? A. When I bid I was counting on the metes and bounds. I didn’t know whether it would run over the fence or which side, I was paying no attention to the fence or where it was.”

I. We are of the opinion that the report of the commissioners setting out the homestead and dower of the widow should be construed so as to limit the dower by a line on the east so drawn as to enclose in the dower tract just forty-four acres, making the homestead and dower together just eighty-two acres.

We are aware that it was said by Barclay, J., in Baker v. Clay, 101 Mo. l. c. 558, “It is an accepted rule of construction that metes and bounds in a description control a call therein for acreage.” That*case cites Campbell v. Johnson, 44 Mo. 247, where it was said that quantity “aids, but ordinarily does not control, the description of the granted premises.” In Whitaker v. Whitaker, 175 Mo. l. c. 11, it was said, “ordinarily, references to monuments prevail over calls by metes and bounds.” The strongest language that can be used is to say that ordinarily monuments control metes and bounds, and that ordinarily the latter control acreage or quantity. We fully agree that, in the absence of a reason to the contrary, metes and bounds should control the call for quantity.

Devlin on Deeds (3 Ed.), vol. 2, sec. 1012, says: “The court will not resort to arbitrary rules of construction, if, without so doing, the intention of the parties can be ascertained. The deed and its descriptive clauses will be construed as any other contract would be. When a doubtful description is to be construed, the court should endeavor to assume the position of the parties, the circumstances of the transaction should be carefully considered, and in the light of those circumstances, the words should be read and interpreted. ’ ’

In Jamison v. Fopiano, 48 Mo. 195, the court said: ‘ ‘ In the construction of deeds, words are not the principal thing, but the intent and design of the parties"; and therefore, when there are any words in a deed that appear repugnant to the other parts of it, and to the general intention off the parties, they will be rejected. [4 Greenl. Cruise, 307.]”

In Shewalter v. Pirner, 55 Mo. l. c. 232, it was said: “It is very true, that natural or known monuments will control courses and distances; but it is equally true, that where there is a false call, demonstration or description in a deed, and the false description can be rejected and leave a sufficient description to identify the land, the false description will be rejected, and the remainder of the description, being sufficiently certain, will be sufficient to pass the land. [Cooley v. Warren, 53 Mo. 166.] ”

In Patton v. Fox, 179 Mo. l. c. 533, it was held that the general description ought to prevail over the description by metes and bounds.

In Mitchner v. Holmes, 117 Mo. 185, there was a discrepancy between the metes and bounds written out in the report of commissioners in partition and the plat filed with the report and made a part of it. This court said (1. c. 206): “It is not open to doubt that the commissioners filed a plat with their report, from which, as well as from this report, it most clearly appears that they intended to allot to Thomas Lockridge and each of his brothers and sisters seventy-two acres of land. It is, we think, important to bear this in mind. They report that they did allot to each child seventy-two acres; and they attempt to describe the same by metes and bounds.

“It is plain that they divided the land into tracts of seventy-two acres each, and then assigned one share to each heir. As each heir was entitled to an undivided one-fifth it was their duty to give each one-fifth, and as there was just three hundred and sixty acres to divide, it is impossible to shut our eyes to the intention fco give each his or her seventy-two acres.”

In Presnell v. Headley, 141 Mo. 187, the acreage was considered and the length of one line given in the metes and bounds was rejected. In Whitaker v. Whitaker, 175 Mo. l. c. 11, this court said: “Where a deed contains two inconsistent descriptions 'that description which the whole instrument shows best expresses the intention of the parties must control.’ [2 Dev. on Deeds (2 Ed.), sec. 1038.] Ordinarily, references to monuments prevail over calls by metes and bounds. [Id., sec. 1029.] And a specific description generally prevails over a general description, 'but whenever possible, the real intent is to be gathered from the whole description, including the general description as well, as the particular.’ ”

With those authorities before us, we will examine the report of commissioners, including the plat, and determine its meaning. We are mathematically certain that there was a mistake either in the areas of three tracts or in the width of the dower tract. Section 2582, Eevised Statutes 1909', provides that the commissioners shall allot the several shares ‘ ‘ quantity and quality relatively considered. ’ ’ The report of the commissioners now being considered states that they considered the quantity and quality of the several parts allotted.

If the full width of 108 poles is given to the homestead and dower tract, it will contain 85.05 acres, while, on the other hand, defendant’s tract of 68 acres will he reduced to 66 acres, and the Simms tract will he reduced from 33 acres to 31'.9<5 acres. We entertain no doubt when we say that the intent, patent on the face of the report, is that the homestead and dower shall be 126 poles long from north to south and wide enough to contain 82 acres, and that defendant should have 68 acres, and Simms 33 acres as located on the plat.

It is not necessary that the report should he corrected, as a court of law will declare the meaning of the report without driving the parties to a court of equity to correct it. [West v. Bretelle, 115 Mo. l. c. 659; Evans v. Greene, 21 Mo. 208.] If part of the description is inconsistent with other parts, and the remaining part is sufficient to designate the land sold, the remedy is afforded at law by disregarding the false description and giving effect to the other calls.

II. There is another reason which prevents plaintiff’s recovery. In Kronenberger v. Hoffner, 44 Mo. l. c. 192, the court said: “Where there are no express calls that determine a- line with certainty, evidence aliunde is admissible to show where the line was actually run to which the deed refers, or to which it must have reference; and its location, so fixed by extrinsic evidence, will control the courses and distances named in the deed or in the survey. The right to prove the true line of the survey to which the deed refers, and which it follows, does not depend upon the rules applicable to ambiguities in written instruments, though it has a strong analogy to latent ambiguities. It is not a question of construction, but a question of fact. There may be no ambiguity, and yet it may be impossible to locate the land without extrinsic information. If it refers to lines and surveys, the lines and angles as actually run and established must be found, and by the best evidence attainable. If the deed calls for known monuments and abuttals, they must be found, and, if destroyed, their location must be proved. If there are no monuments, or they cannot be found, any other legal proof of where the line was actually marked upon the ground is .admissible. Field-notes and plats of the surveyor, with the calls for courses and distances, properly authenticated, can be shown, not to make a line, but as evidence of an existing line, and they must yield to other satisfactory evidence of its true location. Among the multitude of authorities are Opdyke v. Stephens, 4 Dutch. (N. J.) 84; Conn v. Penn, 1 Pet. C. C. 511; Ogden v. Porterfield, 34 Pa. St. 191; Younkin v. Cowan, 34 Pa. St. 198.”

The report of the commissioners says, “We were compelled to employ the professional services of Beuben J. Stepp, surveyor of Clay county, in making measurements and areas and running lines for the period of three days.” Thus we see that the lines were actually run on the ground. Were they marked on the ground? We say “yes,” for the following reasons: Section 7404, Bevised Statutes 1879, now section 11323, Bevised Statutes 1909, provides the manner in which surveyors shall perpetuate their corners by stones and otherwise. The defendant testified that the surveyor at the time of the partition set stakes to indicate the corners of the dower tract and also his northwest corner on the east line of the dower tract, and he further testified that he and Mr. Hall that same year planted stones where the stakes were and that the fence was then built on the line of those stones, and has been in the same place ever since. If it be suggested that the defendant is an interested party, an*d that his testimony should not be made the basis on which to rest the finding and judgment, we say that his testimony may be disregarded and the effect will be the same. The surveyor who made the survey for the plaintiff and was plaintiff’s witness testified that he fonnd a stone at the end of the fence at the northeast corner of the dower tract sixty-one feet west of where the corner would be according to the contention of plaintiff. In the absence of a showing to the contrary there is a reasonable presumption that the surveyor placed it there at the time of the partition in accordance with his statutory duty. According to the- evidence for the plaintiff, the fence as now located had been there eight or ten years prior to the trial of this case, which occurred in December, 1910. That fence was there long before the death of the widow. There is no evidence that it was ever changed in location or that the rock was ever changed. In Whitwell v. Spiker, 238 Mo. l. c. 638, the court, speaking of monuments of surveys, said: “These, in thickly settled communities, and especially in cities, become obliterated, and their places are supplied by houses, fences and other visible things that have been planted or adopted for that purpose. When this has been -done they may be used as landmarks for all, and their removal does not, of course, remove the land that has been bought and sold with reference to them.”

By the survey and the report of the commissioners as confirmed by the court, the land assigned to the widow acquired “a local habitation and a name.” It was named the homestead and dower. It was given a location on the ground as marked by the surveyor, now indicated by the fence. That fence can be moved only by showing that the original survey located the line east of the fence, and there is no evidence tending to show such fact.

In Diehl v. Zanger, 39 Mich. l. c. 605, Judge Cooley said, “As betweén old boundary fences, and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are.”

III. Having held that the dower tract did not include any land east of the fence, we proceed to consider whether the result of the sale to the plaintiff in the second partition had the effect in law of vesting in the plaintiff the title to any land east of the fence.

The petition in the second partition states that in the first partition suit “such proceedings were had, that thereafter commissioners were appointed, qualified and performed the duties assigned by the court, setting out to said Letitia A. Garner the following real estate in Clay county, Missouri, to-wit:” Then follows a description of the homestead and dower tracts by metes and bounds as in the report of the commissioners, stating that there were thirty-eight acres in the homestead and forty-four acres in the dower tract. It then described both tracts as one by metes and bounds giving the north boundary and the south boundary as 108 poles. That petition then stated that Letitia A. Garner entered into the possession of the real estate so set out to her and held the same during her lifetime, which ended in her death on October 18,1906. The decree of partition and order of sale found those facts as stated in the petition. It is true that plaintiff’s deed and the notice of sale described the land by metes and bounds, giving it á width east and west of 108 poles without stating the quantity. That does not enlarge the plaintiff’s rights. Those rights can be no broader than the decree on which the sheriff’s deed is based. "When the plaintiff purchased the land he was bound to take notice of the proceedings in partition leading up to his purchase. By an examination of the decree under which he purchased he would have found that the land which was to be sold was the land allotted to the widow and which had been taken possession of by her.

In Rutherford v. Tracy, 48 Mo. 325, the land was described as lot 3 in block 87 of a certain town, followed by metes and bounds which included less than the lot. It was there said (1. c. 329), “The designation of the lot by its number must be regarded as the prominent object or monument; and where there is uncertainty, the monument must prevail over the description by courses and distances.”

So we hold in this case that the record shows it was the intention to partition the homestead and dower tracts. Those tracts, as we have held, did not include anything east of the. fence. Their location on the ground was well known. It was well known to all concerned, including the plaintiff, that the defendant was in exclusive possession of the land east of the hedge. Th'e distance of 108 "poles was used not because the plaintiff in the second partition suit claimed anything east of the fence, but because that erroneous distance was taken from the description in the report of the commissioners. The plaintiff testified that he did not know at the time of his purchase that the metes and bounds would run east of the fence. So far as the evidence shows no one knew it. We are not to be understood as holding that such knowledge would have made any difference. We call attention to it in order to show that the intent was to partition the homestead and dower tracts and nothing else, and that the call for 108 poles was a false call and should be rejected. The judgment is reversed.

PER CURIAM. —

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All concur, except Faris, J., who dissents, and concurs in the opinion filed by Williams, G.

WILLIAMS, C. —

Plaintiff, having acquired title by purchase at partition sale, brings ejectment to recover possession of a portion of the land so purchased. The land here involved is a narrow strip 1101.21 feet long, 51.12 feet wide at the north end and 40 feet wide at the south end and contains about one and one-seventh-acres. Defendant here was a party defendant to said partition suit. The situation can be more readily understood by reference to the following plat marked “C.”

The land involved in this suit is shown on the plat as lying between the dotted and heavy line extending from “X” to “Y.” In 1882, one James Cono way Garner (the common source of title) died intestate, owning all the land shown on said plat. “ He left surviving him a widow, Letitia A. Garner, and a number of children, including James D. Garner (defendant herein). In 1883, Letitia A. Garner, widow, and some of the heirs, as plaintiffs, brought suit against said James H. Garner and others to have the homestead and dower of said widow set off and for partition of the remainder of said land. The result of that suit is shown by the foregoing plat. Said plat is a true copy of the original plat filed with the commissioners’ report in said partition suit, excepting the dotted line and the letters “X” and “Y” which have been added to show the location of the land involved in this suit. The tracts marked “Homestead” and “Dower” on the plat,were set off to the widow as defining her homestead and dower rights in said land. Just east of the dower tract, the tract marked “James Garner” was allotted to the defendant herein as his portion of the land outside of the dower and homestead tracts. The portions allotted to the other heirs also appear upon the plat. Said James Garner and said widow (each building one-half) built a rail fence north and south along the dotted line, presumably on the theory that that was the correct division line between them. After many years the rail fence was removed and a wire fence erected in lieu thereof, approximately on the same line. After the death of said widow in 1906, the remainder-men (heirs of said James Conoway Garner) coming into full ownership of said tracts marked “Homestead” and “Dower,” a partition suit was brought by some of the heirs as plaintiffs against James D. Garner (the defendant herein) as defendant. Said James D. Garner as party defendant was duly summoned in said cause. The interlocutory decree entered in said last mentioned partition suit was in part as follows:

“Now on this 12th day of November, A. D. 1908, come the plaintiffs, by their attorney, as well as the defendants, Henrietta Simms and Alvin H. Simms, by their guardian ad litem, William A. Craven, and the defendant, Louis B. Garner, by his attorneys, and the remaining defendants, although duly summoned and three times solemnly called, come not, but herein make default, wherefore judgment ought to be rendered against them; and the parties appearing waiving a jury, this cause is submitted to the court upon the pleadings and proof; and the court, having seen and heard read the petition and the answer of the said guardian ad litem of the said defendant Louis B. Garner, and having heard and duly considered the evidence adduced, and being fully advised in the premises, finds that one James C. Garner died in Clay county, Missouri, on or about the 14th day of March, 1882, seized and possessed of two hundred and eighty acres of real estate, a portion of which is hereinafter fully described, intestate and leaving as his only heirs, his widow, Letitia A. Garner, and his five children, Mary A. Simms, James D. Garner, Amanda Garner, Jane T. Deshon and Louis B. Garner; that, thereafter, letters of administration were duly issued on the estate of said James C. Garner by the probate court of Clay county, Missouri, lawfully having jurisdiction in the premises, to James D. Garner, who duly qualified and administered said estate, made final settlement thereof and was discharged; that, thereafter, a proceeding was instituted in the circuit court of Clay county, Missouri, lawfully having jurisdiction thereof, to set out the homestead and dower of said Letitia A. Garner in all the real estate of said deceased, which proceeding was entitled, “Letitia A. Garner et al. against James D. Garner et al.,” and therein such proceedings were had that, thereafter, commissioners were appointed, qualified and performed the duties assigned by the court, setting out to the said Letitia A. Garner the following described real estate in Clay county, Missouri, to-wit: For her homestead, part of the southwest quarter of section No. 33 in township. No. 54 of range No. 32, containing 38 acres, thus bounded, viz.: Beginning at a point on the west line of said section No. 33: which is 50 poles north of the southwest corner of said section No. 33, thence running east 80 poles to a point, thence north 76 poles to a point, thence west 80 poles to a point on the west line of said section No. 33, thence south on said west line to the point of beginning. For her dower: Part of the southwest quarter of section No. 33 in township No. 54 of range No. 32, thus bounded, viz.: Beginning at the southwest corner of said section No. 33, thence running east over the south line of said section No. 33 a distance of 108' poles to a point on said south line, thence north 126 poles to a point, thence west 28 poles to a point, said point being the northeast corner of said dower, thence south 76 poles to a point, thence west 80' poles to a point on the west line of said section No. 33, thence south over said west line 50 poles to the point of beginning, containing 44 acres, — the two tracts set out to Letitia A. Garner being thus' together described, to-wit: Beginning at the southwest corner of section No. 33, in township No. 54 of range No. 32, and running thence east 108 poles, thence north 126 poles, thence west 108 poles, and thence south 126 poles to the beginning, all in Clay county, Missouri.
“And the court further finds that said court approved the action of said commissioners, and the same became binding forever, all the above-named heirs being made parties thereto, duly served with process, and each receiving his or her share of the real estate of said deceased.
“And the court further finds that Letitia A. Garner entered into possession of said real estate, so set out to her, and held the same during her lifetime, which ended at her death on October 18, 1906; that, subject to said lifetime interest, the five children of James C. Garner, deceased, owned said real estate, in fee simple, by inheritance, as aforesaid.”

The decree declares the interest of said James D. Garner to be 537/900ths of said land. The court further found that the land could not be partitioned in kind without great prejudice to the rights and interests of the parties, etc., and ordered “that said real estate be sold by the sheriff of Olay county, Missouri, for cash,” etc. The present record contains an admission “thaf. all the steps were duly and properly taken to get all parties mentioned” in said partition suit “duly and properly in court,” and “that all subsequent proceedings in the case are regular, and that the property described in the petition and decree in said partition suit was sold to the plaintiff herein by the sheriff under decree of the court.” Louis C. Walker (respondent herein) purchased the land for the sum of $8300 and received from the sheriff a duly executed and acknowledged deed describing the land as: “Beginning at the southwest corner of section No. 33' in township No. 54 of range No. 32 and running east 108 poles, thence north 126 poles, thence west 108 poles, thence south 126 poles to the beginning.” Appellant received from the sheriff his proper distributive share of the proceeds of said partition sale. The above description is the same as that contained in the interlocutory decree and in the notice of sale published by the sheriff; said description contains the proper description by metes and bounds of the total area of the homestead and dower tracts, as originally described in the commissioners’ report in the first partition suit, except it makes no mention of the number of acres contained therein. By reference to the commissioners’ report, in the first partition suit, it will be noted that the homestead tract is said to contain thirty eight acres and the dower tract is said to contain forty-four acres, making a total of eighty-two acres in both tracts. After said Walker purchased said land at the partition sale, he caused a survey to be made and it was ascertained that the strip of land here involved was east of said division fence and was enclosed as a part of appellant’s field. The total land purchased, as described by metes and bounds, contained 85.05 acres; the land purchased by respondent, and lying west of said division fence, contained 82.45 acres. This leaves 2.41 acres of the land lying east of said fence, and of this about 1 1/7 acres comes off of appellant’s field, the remainder affecting the Simms tract to the north, which is not involved in this suit.

The petition in the present ejectment suit was in the usual form.

The answer admits the possession of the strip in defendant; then sets out the proceedings in the first partition suit and alleges that in said partition proceedings the survey as actually made fixed the division line between the widow’s dower and defendant’s allotment at the dotted line and that the stakes of the surveyor were set along the dotted line; that a fence was built along said dotted line and stones were planted in place of said survey stakes; that said fence and stone markers have so remained from 1883 to the present; that the commissioners and surveyor made a mistake in giving the metes and bounds of said dower tract; that it was marked and originally surveyed so that the dower tract contained forty-four acres, whereas the erroneous description made and given, as aforesaid, gives to the dower tract 47.05' acres; that this is further apparent from the discrepancy in acreage of the allotments to the heirs, in comparing the amount of acres marked on each allotment with the metes and bounds thereof. The answer then sets out the proceedings of the last partition suit and alleges that plaintiff was familiar with said dower tract and the fence bounding tbe same and bought the land knowing he was buying the land as bounded by said fence; that the order of sale in the last partition suit stated that the homestead tract contained thirty-eight acres and the dower tract contained forty-four acres and that it was publicly announced at said sale that the tract contained eighty-two acres; that Letitia A. Garner, the owner of the dower estate, and defendant agreed to the dividing line as surveyed (being the dotted line on the plat) and built said fence accordingly and have for more than twenty-five years recognized said fence as the true dividing line and that defendant for more than twenty-five years has been in the open, adverse, continuous and peaceable possession of the land here involved; that the other heirs of said James Conoway Garner, deceased, have, since 1883, concurred in said agreed line. The answer contains a prayer “that the description in said report of commissioners setting out dower to said Letitia A. Garner may be reformed and corrected so as to correctly show the actual facts and so as to describe the .land actually set out to her by them.”

The reply contains a general denial; admits possession in defendant; sets out the proceedings in the last partition suit and alleges plaintiff’s purchase of the land at the partition sale; alleges that defendant was a party to said partition suit and received his proportionate share of the proceeds of said sale and that by reason of said facts defendant “is estopped from claiming any interest in the real estate herein sued for.”

Plaintiff offered in evidence the pleadings, decree and record of all the proceedings, including the sheriff’s deed in the partition suit, which resulted in the sale of the land to plaintiff. He also offered as a witness the surveyor who surveyed the land after his purchase. The surveyor testified concerning the true dividing line according to the metes and bounds, show-rag that the strip here involved was within the description by metes and bounds of the land sold to plaintiff at the partition sale.

Defendant offered in evidence the record entries and the commissioners’ report in the first partition suit wherein the homestead and . dower tracts were set off and the remainder of the land allotted to the heirs. The defendant in his own behalf testified that he was present on the premises when the commissioners set off the dower and homestead in the first partition suit; that the county surveyor, a Mr. Stepp, at the direction of the commissioners surveyed the different allotments; that stakes were set showing the dividing line between his allotment and the dower tract; that these stakes were removed and stone markers planted in their place and a fence was built along the line shown by the surveyor’s stakes; that the present wire fence is in the same location as the original rail fence; that the line as shown by the fence was never questioned until' just before this suit was brought; that he had been in possession of the land east of the fence, claiming to own it, ever sincé the rail fence was built; that he was present at the partition sale at which plaintiff purchased, and that the attorney for the plaintiffs in said partition suit “read-off the dimensibns and said there was 82 acres, and that the homestead and dower farm, 82 acres, was being sold” and “it was bid on as a body of 82 acres.” On cross-examination, he testified that there was never any dispute about the division line until after he had the county surveyor come out to make a survey for a graveyard; the surveyor in locating corners preliminary to making a survey of the graveyard ran the one hundred and eight poles along the south part of the former dower tract and it established “a corner which went beyond the fence I supposed to be the true line; ’ ’ that, about this time, plaintiff said he knew there was a mistake at the -time the land was sold. Upon being asked by defendant why he didn’t tell him, plaintiff replied it was none of his (plaintiff’s) business and that defendant should have figured it; defendant • further testified that plaintiff had lived in that neighborhood all his life. Mr. Lawson testified for defendant that at the partition sale he “read the printed notice of sale and then announced that this was the sale of the homestead and dower tract that was set out to Mrs. Letitia Garner from the husband’s estate and that it contained eighty-two acres.” That after the sale was over Mr. Walker (plaintiff herein) and witness figured on the basis of eighty-two acres to see how much the land had cost Walker per acre. Mr. Hulse testified that he helped build the original rail fence in 1883; that Mrs. Garner told him to run the fence along the line of stakes standing there, which he did. Plaintiff testified in-rebuttal that prior to purchasing at the partition sale, he read the description of the land in the notice of sale and calculated that the tract contained 85.05 acres; that at the sale he heard Mr. Lawson read the description and announce that it contained “about” eighty-two acres, but that he didn’t pay any attention to the statement that it contained “about eighty-two acres; ” that he was buying eighty-five acres as he figured it; that he didn’t know of any mistake at the time of the sale and did not afterwards tell defendant that he knew of the mistake when the sale was made. On cross-examination he testified that he had known the land for years and 1mew of the fence but said, “When I bid I was counting on the metes and bounds. I didn’t know whether it would run over the fence or which side, I was paying no attention to the fence or where it was. I was counting on 108 rods east, 126 rods north, 108 rods west and 126 rods to the beginning.” That he never measured it before purchasing it and never thought of measuring it prior to his purchase'; that the first time he became aware that the 108 poles would extend east of the fence was after the purchase and when defendant had surveyor Barnes run some lines. The sheriff who officiated at the partition sale testified that the land was sold in bulk for so much money; that the description was read at the sale and Mr. Lawson announced that “it was the dower right of Mrs. Letitia A. Garner;” the witness understood that Mr. Lawson said it contained “about” eighty-two acres.

The court found the issues in favor of the plaintiff and entered judgment in favor of plaintiff for possession of the land and one cent damages; found the monthly value of the premises to be one cent and ordered that execution issue to restore the possession of said land to plaintiff. Defendant duly perfected an appeal to this court.

I. The metes and bounds of the land) sold to plaintiff at the partition sale are the same as those described in the interlocutory decree and order of sale, and compare accurately with the metes and bounds of the combined dower and homestead tracts as set off to the widow in the original partition suit. It is true that in the original partition suit the homestead tract was further described as containing thirty-eight acres and the dower tract as containing forty-four acres (a total of eighty-two acres), and that this further description was also used in the interlocutory decree in the last partition suit, in which the sale of the land in question was had.

Appellant contends that under this situation, the sheriff had authority to sell only eighty-two acres. We are unable to agree with this contention. The general rule, firmly established by many decisions, is, that when land is particularly and definitely described by metes and bounds, the description by metes and bounds controls over a further recital as to the number of acres. [Orrick v. Bower, 29 Mo. 210; Campbell v. Johnson, 44 Mo. 247; Ware v. Johnson, 66 Mo. 662; Baker v. Clay, 101 Mo. 553.]

The facts of the present case are not snch as to create an exception to the above announced general rule but are such as to clearly call for the application thereof. Applying that rule to the facts disclosed, it follows that the sheriff at the partition sale was authorized to sell all the land embraced within the given metes and bounds.

The fact that, after the reading of the description by metes and bounds, it was further announced, orally, at the partition sale that the tract contained eighty-two acres, does not operate to change the conclusion above reached. The oral announcement as to acreage could certainly have no greater effect than had the acreage been contained in the written notice of sale, and would therefore fall within the control of the general rule above stated.

II. It is further contended by appellant that the court erred in not reforming or correcting the description by metes and bounds, given in the report of the commissioners in the first partition suit, so as to embrace only eighty-two acres.

Respondent, in answer to this contention, claims that appellant is estopped or precluded from having such relief here because of the fact that he was a party to the'partition proceeding which resulted in the sale and the delivery of the sheriff’s deed conveying the land in controversy to respondent herein. The facts relevant to this proposition are set forth fully in the preceding statement. It appears from- the facts that the land here in controversy is included within the land conveyed to respondent by the sheriff’s deed in partition;.that the metes and bounds given in the sheriff’s deed were the same as those given in the partition proceedings, and that said deed was not defective in any manner; that appellant, at the time of said partition sale, was interested in said land and was a party defendant in said partition suit, and received his proportionate share of the proceeds of the partition sale.

Under the view that we entertain in the matter, it does not become necessary to determine whether there was in fact a mistake made by the commissioners in describing the metes and bounds of - the dower tract in the first partition proceeding. In determining whether appellant, under the facts here presented, is. barred or precluded from questioning plaintiff’s title under the sheriff’s deed in partition, it is not necessary to turn to the case leaning on this or analogous, questions, it appearing that the statutory law is decisive of the proposition. Section 2596-, Revised Statutes 1909, provides that in partition sales the sheriff shall “make the deed to the purchaser, which shall be acknowledged or proved and recorded in the same manner as conveyances made by the sheriff of lands sold under execution, and shall be a bar against all persons-interested in such premises who shall have been par-ties to the proceedings, and against all persons- claiming from such parties, or either of them, ’ ’ etc.

Whether plaintiff would have been entitled to this, relief in a suit against the other parties to the original partition suit, or whether the result in the present suit would have been different had respondent, at the time of the partition sale, been apprised of all the facts, which appellant now gives in testimony tending to-show a mistake in the first partition proceedings, we-will not determine, because neither of said situations is here involved, but we have no hesitancy in saying that, under the present facts, when viewed in the light of the above statutory rule, appellant is barred from setting up or seeking such relief as against the rights, accruing to plaintiff as purchaser at said partition sale.

III. Appellant further contends that he was in the adverse possession of said strip of land, claiming to own the same, at the time of the last partition suit, ■and that, therefore, that portion of the land could not be partitioned. As to this point, it is sufficient to say that defendant was a party to said partition suit and that he should have raised that question there. Having-failed to successfully raise and establish that point in the partition suit he is now barred from raising- it in this proceeding. To hold otherwise would be to ignore the plain meaning and effect of the above quoted statute.

The judgment should be affirmed.

Paris, J., dissents from the opinion of Boy, C., adopted herein as the opinion of Division Two, and adopts, as expressing his views, the above and foregoing opinion of Williams, G.