source: Caselaw Access Project

author: FARIS, J. GRAVES, J.

license: Public Domain

text:
    BELLE POWELL et al, Appellants, v. MARY BOWEN et. al.
    In Banc,
    July 7, 1919.
    1. DEED OF MARRIED WOMAN: Defective Acknowledgment: Prior to 1883. A deed made by a married woman, the certificate of acknowledgment of which simply recited that she and her husband “personally appeared before me, a notary public in and for said county, both being personally known to me and acknowledged the execution of the annexed deed,” made when the statute (Secs. 680, 681, R. S. 1879) requiring that any officer taking the acknowledgment of a married woman to any deed of conveyance of real estate must examine her separate and apart from her husband, and so certify in the certificate of acknowledgment, and further certify that she executed such conveyance freely and without compulsion of her husband, was in force, was void.
    2. -: Abandonment of Land. The defense of abandonment, disassociated from other defenses, such as adverse possession or failure to pay taxes, has never been recognized at common law as affecting title to real property; for at common law title can neither be lost nor gained by abandonment operating alone.
    3. :-: Laches and Estoppel: Suit for Interest. Neither laches nor estoppel in vais is as to her real estate'imputable .to a married woman who ever since the making of her void deed in 1882 has been under the legal disability of coverture, the reason being that .prior to the Married Woman’s Acts of 1889 the right of possession of a married woman’s lands was in her husband and was a vested right which was not destroyed by those acts, and she could n’ot before or since have maintained an action for possession. Since the Act of 1897 she could have maintained an action to determine interest, but was not compelled to do so, but that act did not divest the husband’s existing right to possession, or permit her to sue for possession during his life.

      Held by GRAVES, J., dissenting, that the Act of 1897 afforded to a married woman the right to assert her interest in land, and a remedy; and if she stood by for eighteen years after its enactment and saw valuable improvements made upon the land she is barred by estoppel in pais from asserting such interest; and estoppel in pais goes both to the remedy and the right, and may be set up as a defense in actions at law and suits in equity.
    4. -: Estoppel By Covenant in Void Deed. A married woman is not estopped to assert her interest in land by a covenant in a deed which is void as to her because not acknowledged in the manner required by statute. The deed being void, any covenant in its cannot be efficacious to produce estoppel.
    5. -: Limitations. Neither the ten-year, nor the thirty-one-year, nor the twenty-four-year Statute of Limitations was a bar to a married woman’s suit begun in 1915 to establish her interest in land attempted to be conveyed in 1882 by a deed void because it was not acknowledged in the manner prescribed by statute, she being at the time and ever since under the legal disability of coverture. There was no time when she was capable of maintaining an action for possession, and as no such action can accrue to her until her husband’s death, the thirty-one-year and the ten-year statute has never begun to run as to her, and her suit to establish her interest is not barred by the twenty-four-year statute, because it was begun in less than twenty-four years after the Act of 1897 was passed.

      Held, by GRAVES, J., dissenting, that Section 1881, Revised Statutes 1909, which antedated the Married Woman’s Acts of 1889, should no longer be held to except married women from the provisions of the ten-year and other statutes of limitations, .but the Married Woman’s Acts having made her a femme sole, with power to sue for her interest in lands, she should be considered discovert, and said Section 1881 should not be held to prevent the statutes of limitations from running against her.
    6. -: -: Thirty-year Statute: Obligation to Pay Taxes. As between a married woman, whose deed made in 1882, in which her husband joined, was void as to her because not acknowledged in the manner prescribed by statute, and who has since been under the disability of coverture, and her husband’s grantee and grantees by mesne conveyances, as the obligation to pay taxes rests up the latter, the holders of his lifetime right to possession; and hence the thirty-year Statute of Limitations does not apply to her in her suit to establish her interest in the land, she being at no time entitled to its possession.
    7. CHAMPERTY: Agreement of Attorney to Pay Cost. An agreement by an attorney with a married woman to pay the cost of a suit to recover her interest in land, in consideration of a one-half interest in the amount recovered, even if champertous between him and her, does not serve to deprive her of relief touching the land as against a stranger to'the contract.
    Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge.
    Reversed and remanded (with directions).

      Duncan & Brewer for appellants.
    (1) The deed made by Belle Powell and her husband, dated Sept. 15, 1882, is null and void and did not convey the land in question to Leonard for the reason that the certificate of acknowledgment to said deed fails to recite that the said Belle Powell was first made acquainted with the contents of such instrument and acknowledged said deed on examination separate and apart from her husband, and does not recite she executed said deed freely and without compulsion or undue influence of her husband. 1 Wagner’s Statute 1872, p. 275, sec. 13, and sec. 14*; Linville v. Greer, 165 Mo. 394; Mayes v. Price, 95 Mo. 613; Bartlett v. O’Donohue, 72 Mo. 563; Goff v. Roberts, 72 Mo. 570; Hoskinson v. Adkins, 77 Mo. 540; 'Hord v. Taubman, 79 Mo. 103; Rivard v. Railroad, 257 Mo. 164; Laclede Land & Imp. Co. v. Goodno, 181 S. W. 412; Bagby v. Emberson, 79 Mo. 139; Devlin on Deeds (3 Ed.), sec. 107. (2) As Belle Powell was married in the year 1870; and remained under said coverture from that time to the bringing of this suit, plaintiffs are not barred by either the twenty-four-year Statute of Limitations or the so-called thirty-year Statute of Limitations pled by defendant. Dyer v. Wittier, 89 Mo. 81; Vanata v. Johnson, 170 Mo. 274; DeHatre v. Edmonds, 200 Mo. 267; Bone v. Tyrell, 113, Mo. 188; Howell v. Jump, 140 Mo. 457; Shumate v. Snyder, 140 Mo. 87; Land &.Imp. Co. y. Epright, 265 Mo. 215; Lewis y. Barnes, 199 S. W. 212; Graham v. Ketchum, 192 Mo. 15; Babcock v. Adams, 196 S. W. 1118; Smith v. Smith, 201 Mo. 533. (3) Plaintiffs are barred neither by laches nor by estoppel. Blodget v. Perry, 97 Mo. 273; Bales v. Perry et al., 51 Mo. 453; Lamerón v. Jamison, 143 Mo. 491; Mayo v. Cartwright, 30 Ark. 407; Throckmorton v. Pence, 121 Mo. 50; Myers y. DeLisle, 259 Mo. 514; Lewis v. Barnes, 199 S. W. 212; Bigelow on Estoppel (3 Ed.), 484; Acton v. Dooley, 74 Mo. 69; Monks v. Beldan, 80 Mo. 642; Harrison v. McReynolds, 183 Mo. 549; Rutter y. Carothers, 223 Mo. 640; Shannon y. Thompson, 234 Mo. 15; Henry v. Sneed, 99 Mo. 425; Rannells v. Gerner, 80 Mo. 483. (4) The deed of a married woman defectively acknowledged does not operate as an estoppel against her. Devlin on Deeds (3 Ed.), sec. 5486; Drury v. Poster, 2 Wall. 34; Smith v. Ingram, 61 L. R. A. 678. (5) Tlie doctrine of champerty and maintenance is not applicable to this case, for the plaintiffs will not be deprived of relief because the contract between plaintiff, Belle Powell, and the plaintiff, Bex A. Trimble, may be infected with champerty. Euneau v. Rieger, 105 Mo. 682. (6) The court erred in refusing instruction number I offered by the plaintiffs declaring that under the pleading and evidence in the case the finding should be that the plaintiffs are the owners of the land in question and that the defendant, Mary Bowen, was entitled to thfe possession of the premises as long as the marital relation existed between plaintiff, Belle Powell, and her husband, John W. Powell. (7) As plaintiff, Belle Powell, had the legal title to the land in question under the law there could be no 'abandonment of the title. Tiedeman on Real Property (3 Ed.), sec. 516; Corpus Juris, p. 10, sec. 14; Barrett v. Kansas Coal Co., 70 Kan. 649; Kreamer v. Boneida, 213 Pa. 80; Tarver v. Deppen, 132 Ga. 804; Tennessee Oil Co. v. Brown, 131 Fed. 699; Calledonia County Grammar School v. Kent, 77 Am. Dee. (Vt.) 880; Arnold v. Cramer, 41 Pa. Super, 13.

      C. G. Shepard for respondents.
    (1) Under the peculiar facts in this case both the twenty-four and thirty-one-year Statutes of Limitations are effective and are a complete bar to plaintiff’s cause of action to quiet the title to the land in question. Faris v. Moore, 256 Mo. 123; Belfast Inv. Co. v. Curry. 264 Mo. 483; DeHatre v. Edmonds, 200 Mo. 246; Collins v. Pease, 146 Mo. 139; Fairbanks et al. v. Long, 91. Mo. 628. (2) Belle Powell and her husband abandoned the land in question in 1882, gave the land no attention from that date up to the time or just prior to the time this suit was filed, and such abandonment completely defeats their right of recovery in this case. Tayon v. Ladew, 33 Mo. 205; Shelton v. Horrell, 232 Mo. 358; Carson v. Verthoed & Jennings Lumber Co., 192 S. W. 1022. (3) Suits to. quiet title under Section 2535 are not possessory actions, and the statute as first enacted did not contemplate recovering possession of the land to which the title was to be quieted under said section, therefore a married woman from and after the enactment of said section had a full and complete cause of action in her behalf for the purpose of quieting-title to land, as did any other person, even though she was a married woman prior to the enactment of the Married Woman’s Enabling Act and remained a married woman until the time of instituting suit. There being no exemption clause in the twenty-four or thirty-one-year Statutes of Limitations exempting married women from the operation of said statute, the courts have no right to read into said statute provisions that were not placed therein by the Legislature, therefore said statutes are as effective against married women as against other parties, (4) The Married Woman’s Enabling Act emancipating her and making her sui juris, was encated in 1889; what is now Section 2535 was first enacted in 1897, and it must be presumed that at tbe time tbe Legislature passed the act for quieting title to land it had in mind the Married Woman’s Act, as well as the twenty-four and thirty-one-year Statutes of Limitation, and passed the statute authorizing the quieting of titles as much for the benefit of married women who could not bring a possessory action by reason of the fact that their husbands’ right to possession had attached prior to the married Woman’s Act, and there being no exemption in behalf of married women in either the twenty-four or the thirty-one-year Statutes of Limitation, and there being nothing said in the act to quiet title in regard to married women, it must be presumed that the Legislature had in mind the fact that married women in many instances could not bring a suit to recover possession of land, therefore, it was necessary that they have the right to bring a suit quieting the title and showing their interest in the land even though they were not entitled to the possession thereof. (5) The reading of Section 1881 clearly contemplates that the bringing of an action asserting title has the same effect insofar as arresting the Statute of Limitaion is concerned as bringing a possessory action. (6) Belle Powell, by reason of her laches and failure to look after said land or claim any right, title of interest therein, permitting the parties claiming to own said land to make expensive and valuable improvements thereon, is now estopped to come in at this late day and claim said land in its improved condition. And this condition prevailing at the time plaintiff, Belle Powell, made her deed to her co-plaintiff, Bex A. Trimble, he is likewise estopped. Tennent v. Union Life Insurance Co., 112 S. W. 754; Toler v. Edwards, 249 Mo. 152; Shelton v. Horrell, 232 Mo. 358; Eutter v. Carothers, 223 Mo. 631; Powell v. Powell, 267 Mo. 117; Moreman v. Talbot, 55 Mo. 392. (7) Under the facts in this case the doctrine of champerty and maintenance applies with all its vigor and plaintiffs cannot maintain this suit. 6 Cyc. 850; Duke v. Harper, 66 Mo. 57; Bent v. Triest, 86 Mo. 475.
   FARIS, J.

This is an action to determine interest in a certain parcel of real estate situate in Pemiscot County. Upon the trial helow defendants had judgment, and plaintiffs, after the usual motions, appealed.

The facts are few and simple. Plaintiff Belle Powell married one John W. Powell on the 24th day of March, 1870, and ever since has been and was at the time of the bringing of this suit, on the 4th day of May, 1915 a married woman. While under all the disabilities of coverture, plaintiff Belle Powell (hereinafter for brevity, except where otherwise stated, referred to simply as “plaintiff”) acquired title to the land in dispute. On the 15th day of September, 1882, plaintiff, together with her husband attempted to convey this land by warranty deed to one Mark T. Leonard. The form of deed used in this attempted conveyance was not the general form of warranty deed in common use at that time in the State of Missouri, but seemingly this instrument followed an Indiana form. No point is made, however, upon any portion of this instrument, except the acknowledgment appended thereto which is alleged to be defective. This acknowledgment constitutes the sole ground and raison d’etre of this action. Omitting venue, signature and seal of the officer taking the same, all of which are conventional and are not attacked, the acknowledgment to this deed reads thus:

“Before me Fred P. Leonard, Notary Public in and for said county, this 15th day of September, 1882, personally appeared the within named Belle Powell and John W. Powell, both being personally known to me and acknowledged the execution of the annexed deed.”

A part of the land in controversy was, at the time of the above attempted conveyance thereof, in cultivation and in the possession of the grantors. The grantees in the above instrument of conveyance — we so denominate it for convenience — thereupon took possession of this land, and they and their mesne grantees continued in possession, and were in possession thereof on the 4th day of May, 1915, when this action was brought.

The defendants derive their paper title from the above mentioned conveyance to Mark T. Leonard. Leonard thereafter conveyed the land to one Willis Charles. Willis Charles gave a mortgage thereon to said Mark T. Leonard, which mortgage being foreclosed, the land was sold by the sheriff and purchased by one John Wilks, who entered into possession of the same and continued in possession thereof till his death. Upon the death of Wilks, the land was duly partitioned among his heirs, and the part here in .dispute was set off to his daughter Mary, intermarried with one William J. Bowen, who are the defendants herein.

The several defenses interposed upon the trial will be summarized in the opinion, and no necessity exists for lengthening this statement by a recital of them here.

Upon the trial, the testimony of plainiff Belle Powell was offered in evidence by deposition. Among other things shown therein was the nature of the contract made by plaintiff Belle Powell with her co-plaintiff Bex A. Trimble. Touching this contract, plaintiff Belle Powell said in her cross-examination:

“I received information about March of this year from Bex A. Trimble that led me to believe that I could recover this land. Bex A. Trimble is one of the. lawyers representing me in this case. He was to have one half of (sic) 50% of any land recovered by suit or compromise. Mr. Trimble and the lawyers with whom he is associated in this matter are to pay all costs and expense and to hold me harmless in regard to the costs in this suit, or any suits that might he brought for this land or any part of it.”

This plaintiff further testifies that she sold the land to Mark T. Leonard, and that after she sold it to Leonard she “didn’t have anything further to do about it,” and that she had “never paid any taxes on it from that time, since she considered that she had no further interest in it and abandoned all claims to it.” - As a part of plaintiffs’ case they offered a quitclaim deed, dated April 30, 1915, from Belle Powell and her husband, John W. Powell, conveying to plaintiff Bex A. Trimble an undivided one-half interest in the land in dispute and other lands.

If any further facts shall become necessary to an understanding of the points involved, these will be stated in the opinion.

I. The sole source of paper title in defendants, as such title is disclosed by the record, is one Mark T. Leonard, to whom as stated, plaintiff and her husband attempted to convey the land in dispute by warranty deed bearing date the 15th day of September, 1882. At the time plaintiff signed and delivered, and attempted to acknowledge the instrument in question, and for some ten months thereafter (See Laws 1883, p. 21) the law in force in this State required that any officer taking acknowledgment of a married woman to any deed of conveyance of real estate must examine such woman separate and apart from her husband (Sees. 680, 681, R. S. 1879), and >so certify in the certificate of acknowledgment, and further certify that the wife executed such conveyance freely and without compulsion or undue influence of her husband.

Mere casual reference to the acknowledgment of the deed of conveyance from plaintiff and her husband to Leonard discloses a palpable lack of conformance to the certificate of acknowledgment with the law then in force. That this deed was void is well settled— in fact, that it is so void is tacitly conceded by defendants.

Certain other facts, as shown in part by the foregoing statement, are either conceded by the parties or they are conclusively shown by the record. These we epitomize, and re-state below some of them. They are: (a) That plaintiff was married March 24, 1870, and when she attempted on the 15th of September, 1882, to convey the land in controversy to Leonard, was, is now, and eontinnonsly since said latter date has been, a married woman and under all the disabilities of coverture which existed by law in this State until 1889 (Sec. 6869, R. S. 1889); (b) that neither plaintiff, nor any one for her, nor her husband or any one for him, has paid any taxes of any kind on this land since September 15, 1882, but that such taxes, and all of them, have been for all the years intervening paid by defendants and those under whom defendants claim; '(c) that since the date last mentioned defendants and those under whom they claim title have been in the actual, open, notorious, continuous, exclusive, peaceable and adverse possession of the lands in controversy; (d) that these lands have grown in value by reason of the labor and money expended thereon, and on account of money expended for betterment and taxes by defendants and those under whom defendants claim, from $800, their fair value when the attempted conveyance was made to Leonard, to $32,000, their present actual cash value; and (e) that by the contract of plaintiff Belle Powell with her co-plaintiff Trimble, who is an attorney at law, this action is to be maintained and prosecuted by the latter at his own expense, and plaintiff Belle Powell is to be held harmless from all costs of suit and expenses, in consideration of her conveying to said Trimble a half interest in the land in controversy.

To escape the force of the legal conclusion, arising from the fact that plaintiff’s deed to Leonard, the common source of title, is void, defendants urge that plaintiffs are barred by (1) the twenty-four-year Statute of Limitations; (2) the thirty-one-year, or so called thirty-year, Statute of Limitations; (3) the ten-year Statute of Limitations as based upon the Act of 1897 (Laws 1897, p. 74), and the alleged duty of plaintiff to have begun her action within ten years after she was by the above act permitted so to do; (4) that the contract between plaintiff Belle Powell and her co-plaintiff Trimble is champertous; (5) that plaintiff Belle Powell abandoned this land from September 15, 1882, till May 4, 1915; and (6) that plaintiffs have been guilty of such laches and acts in pais as to estop them from asserting title after more than thirty-two years have elapsed from the date of the attempted conveyance.

II. Coming to consider whether any of the above defenses are valid as against plaintiff’s paper title, we might, without examining them and for the sake °f argument, concede that each and all of them except that of abandonment would be efficacious and would constitute complete defenses as against any person sui juris■ The defense of abandonment, disassociated from other defenses, e. g., adversa possession, or a failure to pay taxes, has never been recognized as affecting title to real property at common law. For at common law, whatever the rule may have been under the Spanish or Civil law (Tayon v. Ladew, 33 Mo. 207), title to real property can neither be gained nor lost by abandonment operating alone. [Robie v. Sedgwick, 35 Barb. 319; Philadelphia v. Riddle, 25 Pa. St. 259; Perkins v. Blood, 36 Vt. 273.] Because both the defense of laches and that of estoppel in pais may be dealt with together, we do not stop to consider again whether laches may be imputed even to one sui juris when such one puts forward as the basis of his action nothing but a pure legal title. [See Kellogg v. Moore, 271 Mo. l. c. 193; Garrison v. Taff, 197 S. W. l. c. 274; Newbrough v. Moore, 202 S. W. l. c. 551; Bell v. George, 204 S. W. l. c. 519; Chilton v. Nickey, 261 Mo. l. c. 243.]

Touching the insistence of learned counsel for defendants that plaintiff is barred by laches and by estoppel in pais, we are constrained to hold, perforce the authorities, that neither laches nor estoppel in pais is as to her real property imputable to a married woman, who was (and who so continued down to the date of the judgment herein) under the disability of coverture when the amendment of 1889 to the Married Woman’s Act took effect. [10 R. C. L. 403; Waldron v. Harvey, 54 W. Va. 608; Gibson v. Herriott, 55 Ark. 85; 10 R. C. L. 742; Phillips v. Piney Coal Co., 53 W. Va. 543; Crenshaw v. Julian, 26 S. C. 283; Krathwohl v. Dawson, 140 Ind. l; Colorado Ry. Co. v. Allen, 13 Colo. 229.]

The legal reasons for this rule are fairly obvious, especially when applied to the concrete case before us. By virtue of the Law in force in 1882, and of the husband’s marital rights at common law, the right of possession of the land in controversy was in the husband of plaintiff. While such husband lived, plaintiff could not have brought any possessory action for the recovery of the land in dispute. This right of possession in the husband had become a vested right before the amendment of 1889 to the Married Woman’s Act took effect. The latter amendment could not divest the husband of his vested right of possession, and could not in any wise affect the husband’s interest therein. No action, it is plain, except a possessory action, would have afforded plaintiff any adequate or substantial relief. Since plaintiff, during the lifetime of her husband, was unable to bring a possessory action, it follows that her failure to sue cannot be the basis of laches. It is .true, that since both the Act of 1889 and the Act of 1897 (Laws 1897, p. 74) took effect, plaintiff, at any time since the latter date, could have brought an action to determine interest, that is, the identical action which she now has before us. But she was not compelled to bring such an action. She was not even compelled to bring the present action at the time she did bring it. She could have waited till the right of possession of the land in her husband terminated by his death, and then, within ten years, have brought ejectment.

In fact, if she had brought an action to determine interest in 1897, as soon as the act supra of that year permitted her so to do, she would have been compelled, by the same token, to have brought another action in 1907 and still another in 1917 (or even earlier and oftener than in ten-year periods, since laches often operates to bar right of action far short of the period prescribed by the applicatory Statute of Limitations). Failing to sne thus early and often, her rights would have been barred and lost to her forever, upon the doctrine of laches here contended for. To this absurdity it is apparent the defense of laches leads us when we try to apply it to the concrete case.

The right of plaintiff’s husband to the possession of the land during his natural life (which right since it constitutes an estate of freehold and is in fact an estate pur autre vie, has been called a “life estate,” because its effect upon the remainderman in some phases is similar to that of a. technical life estate) saved and protected plaintiff’s interest. It is fundamental that laches, or neglect to promptly. bring or assert a cause of action to the hurt of a potential defendant, can never be imputed to one who has no right to sue, or to a case wherein a suit if brought, would not afford any actual relief. Laches is but a manifestation of estoppel in pais. The latter is the genus, the former merely a species. That estoppel in pais is not imputable to a married woman who rests under the disabilities of coverture stated in the premises is settled by what we say above, and by the authorities in this State, and by the weight of authority everywhere. [Rannells v. Gerner, 80 Mo. l. c. 483; Cockrill v. Hutchinson, 135 Mo. 67; Henry v. Sneed, 99 Mo. l. c. 425; Lewis v. Barnes, 272 Mo. l. c. 404; Crenshaw v. Creek, 52 Mo. 98; McBeth v. Trabue, 69 Mo. 642; Lowell v. Daniels, 2 Gray (Mass.) 161; 10 R. C. L. 742; Barker v. Circle, 60 Mo. 258; Mays v. Pelly, 125 S. W. (Ky.) 713; Scott v. Battle, 85 N. C. 184; Morrison v. Wilson, 13 Cal. 495; Cook v. Walling, 2 L. R. A. (Ind.) 769, and note.] We need not reiterate that we are passing only upon the concrete case before us, and not upon a case wherein the wife’s separate property is involved, or a case wherein the woman married subsequent to the time at which the amendment of. 1889 to the Married Woman’s Act took effect.

III. The above eases are likewise persuasive authorities against the suggestion that plaintiff was ■ es-topped hy the covenant in her deed. Obviously, also, the plain reason of the thing is against any suc^ view. For, if she is to be estopped hy her deed, then such deed, to be efficacious in producing an estoppel, must of necessity be a good and valid deed, and it is axiomatic that a thing which cannot be done directly cannot, of course, he done indirectly. The deed here is utterly void. Neither can her covenant of warranty estop her, for, among other reasons against such a view, she was not estopped at common law (21 Oyc. 1344) and there was in existence and applicatory in 1882 a statute which limited and made void the covenant of a married woman, except in so far as was necessary effectually to convey her title expressed to he conveyed hy such deed. [Sec. 669, R. S. 1879.] If the deed, as was the case here, was utterly void and conveyed no title hy reason of such invalidity, then it follows that the covenant was void also. It results tñat these contentions of defendants must he disallowed.

IY. Coming to the strenuously and ably urged contentions of counsel for defendants that plaintiff is barred hy the several statutes of limitations noted, we are likewise constrained to disallow each and all of these. The twenty-four-year Statutes of Limitations and the thirty-one-year statute are expressly p¡ea(je(j_ ten-year statute is raised hy a general denial. [Carson v. Lbr. Co., 270 Mo. l. c. 245; Land & Imp. Co. v. Epright, 265 Mo. 219:] Under the facts which were admitted, or which are conclusively shown hy the proof, plaintiff without any question would have been barred hy every statute of limitations pleaded, if she had not been protected hy the disability of coverture. In fact, it is settled law that if she had had an existing cause of action, even the disability of coverture alone would not have saved such cause of action to her, because we have held that, given an ex isting cause of action, neither insanity (Paris v. Moore, 256 Mo. 123) nor coverture will save such action after the lapse of twenty-four years of adverse possession (De Iiatre v. Edmonds 200 Mo. 246), because so reads the statute. [Sec. 1881, R. S. 1909.] The difficulty under which we labor in applying the twenty-four-year statute to the facts in this case is that since plaintiff was married in 1882, her husband was entitled alone to sue, and she has never since that date, or at least until 1897, had any cause of action. Since plaintiff sued in less than twenty-four years after she had a bare cause of action, or right to sue, we need not consider a situation wherein there is, and will be, no cause of action till the death of one who holds a life estate, or an interest tantamount to such an estate. All such interests are* saved, covered and protected by the outstanding life estate. [De Hatre v. Edmonds, 200 Mo. l. c. 273; Lewis v. Barnes, 272 Mo. 377; Herndon v. Yates, 194 S. W. 46; Armor v. Frey, 253 Mo. l. c. 477; Bradley v. Goff, 243 Mo. 95.]

In the case of Bradley v. Railroad, 91 Mo. l. c. 498, Brace, J., of this court, expressed the thought with rare terseness when he said: “No cause of action accrued to her until her husband’s death and until that event the Statute of Limitations did not commence to run against her or her heirs.” [Dyer v. Brannock, 66 Mo. 391.]

Nor did the Act of 1897, supra, have the effect to divest the husband’s right to possession, or to confer on the plaintiff the right to bring a possessory action, or to bring any other action which would afford either actual or present relief to her. Besides, as we have already pointed out in discussing other phases of this case, such a view would force us to assume the anomalous position of saying to plaintiff in effect, that she must have sued to determine interest within less than ten years after the Act of 1897 took effect, and that after a judgment in her favor she must continue to bring .fresh suits to determine interest every ten years, while her husband lives, or lose her land as a- penalty. Discussing a situation precisely analogous, we took occasion to say, in Division Two, in the case of Herndon v. Yates, 194 S. W. l. c. 48, this:

“Defendants insist that the Statutes of Limitations bar recovery; relying, it seems, upon both the ten-year statute and the thirty-year statute for this position. Both the time and sort of possession meet for a foundation for the running of these statutes were shown, we may concede for argument’s sake; but learned counsel in urging the applicability of these statutes overlook the fact that the plaintiffs are remaindermen, and that Lutes, who holds the life estate, is yet alive, and therefore, since his life estate has not yet fallen in, plaintiffs were not compelled to bring this action till he died. They are not, of course, protected here by their non-age existing up till the time they married, nor by their subsequent and yet continuing coverture, because they may not tack- these disabilities, but they are protected by the fact that defendants were (and yet are as to a present action in ejectment, entitled to the possession of the land in dispute till the holder of the life estate shall die. While there are a few cases wherein broad language was used which was peculiarly applicable to the facts in such eases and which language from its broadness seems to squint at the view that since the right to sue was given to plaintiffs by statute in 1897, they must have sued to determine interest within ten years thereafter (cf. De Hatre v. Edmonds, 200 Mo. 246, 98 S. W. 744, 10 L. R. A. (N. S.) 86; Burkham v. Manewal, 195 Mo. 500, 94 S. W. 520; Haarstick v. Gabriel, 200 Mo. 237, 98 S. W. 760), and while at first blush on some considerations the logic of the thing may seem also to point somewhere in that direction, yet the rule is sound and free from absurdities AArhich holds otherwise (Armor v. Prey, 253 Mo. 447, 161 S. W. 829). For we would involve ourselves in an absurd position if we were to say that plaintiffs are barred, here in this action, but that if they had but waited till the life estate fell in they would have been entitled to bring ejectment at any time within ten years subsequent to such event. The Statute of Limitations could not begin to run against plaintiffs till they became entitled to the possession of the land in dispute. This right to possession being postponed by the protecting life estate they were not barred here. [Bradley v. Goff, 243 Mo. 95, 147 S. W. 1012; Hauser v. Murray, 256 Mo. 58, 165 S. W. 376; Armor v. Frey, supra.]”

.While the situation presented makes the case a hard one, apparently working great injustice upon the defendants, the rules of law invoked are well settled by numerous adjudged cases. These rules are the result of following the common law, unchanged till 1889 by statutes requiring a more logical and fair view of the relations and property rights of married men and women. We cannot change the law as it is written, however much the compelling justice of the situation may seem to urge. To do 'so would necessitate the overruling of dozens of cases and would bring about an unsettling of the law in matters wherein it has been deemed settled by Bench and Bar for almost half a century. [See Dyer v. Wittier, 89 Mo. 81; Howell v. Jump, 140 Mo. 441; Shumate v. Snyder, 140 Mo. 77; Vanata v. Johnson, 170 Mo. 269; De Hatre v. Edmonds, 200 Mo. l. c. 267; Smith v. Smith, 201 Mo. 533; Land & Imp. Co, v. Epright, 265 Mo. l. c. 215; Graham v. Ketchum, 192 Mo. 15; Dyer v. Brannock, 66 Mo. 391; Pim v. St. Louis, 122 Mo. l. c. 665; Bradley v. Railroad, 91 Mo. 493; Hall v. French, 165 Mo. l. c. 440; Smith v. Patterson, 95 Mo. l c. 529; Babcock v. Adams, 196 S. W. 1118; Lewis v. Barnes, 272 Mo. 377.] Many other cases can be found, but these should suffice. If to-day, in order to meet a seemingly unjust and harsh case, we should change the settled law, perhaps to-morrow, again in order to meet a harsh and unjust case, we might be compelled to return to the law as it is now ruled.

Y. What has been said above herein applies with equal force to the so-called thirty-year Statute of Limitations. Here plaintiff was, as between her and her •husband, who was entitled to possession of the land (whatever her . duty may have been to the State) under no obligation to pay taxes. It may indeed be said that the duty to pay taxes, • considered merely as a matter between plaintiff and defendants, was upon the latter as the holders and owners of the life estate. Nor was plaintiff, as we have seen, at any time in the thirty-six years, which have now elapsed, entitled either to make an entry, or to bring a possessory action. Hence, it follows that neither the ten-year statute, the twenty-four-year statute, nor the thirty-year Statute of Limitations applies to her here.

YI. Upon the question of champerty, the ruling must likewise be against the defendants. [Euneau v. Rieger, 105 Mo. l. c. 680.] If the agreement between plaintiffs Belle Powell and Bex A. Trimble inter sese be champertous, this fact will not serve to deprive plaintiffs of relief touching the subject-matter champertous contract as against a stranger to such champertous agreement. While there are in some jurisdictions — Wisconsin, for example — holdings to the contrary, and in favor of the view urged on us by defendants, the great weight of authority everywhere bears out the rule we state above. This State early took the view set forth in Euneau v. Rieger, supra. This rule is buttressed both by the reason of the thing and by the overpowering weight of the ruled cases. We see no good or sufficient reason to now change either our views upon the point or the rule . announced thereon. Let this contention also be disallowed.

It results that the judgment of the trial court was erroneous and for the wrong party. Let this judgment be reversed and the cause remanded, with directions to the trial court to adjudge the title to the land in controversy to be in plaintiffs, subject to the right of possession of defendants therein, till such time as the husband of Belle Powell shall depart this life, if so it be — -in the event of plaintiff’s prior death, such husband shall háve also an estate by curtesy. It is so ordered.

Bond, G. J., Walker, Blair and Williams, JJ., concur; Graves, J., dissents in separate opinion. Woodson, J., not sitting.

GRAVES, J.

(dissenting). — Our learned brother says this is a harsh case. To this I cheerfully accede. It is indeed so harsh, that I will not lend my assent thereto, if upon any legal theory it can be avoided. That the plaintiff in this case received the full value for her land when she sold it is not questioned; that she then, and for more than thirty-one years thereafter, abandoned all claim thereto, she admits; that she knew that her 'grantee was taking possession thereof, and would make improvements thereon, stands to reason from the record; that the grantee and his subsequent vendors in title did make permanent, valuable and lasting improvements is thoroughly shown; that by reason of these improvements and the advance in lands (growing with the flux of time) the cheap land of 1882 is now worth $32,000; that it required a champertous contract, at this late date, to spur her to this action, is shown. In short, the record facts are nauseating to a sense of right doing, and shocking to a keen sense of justice. I believe that there is a clear way around this wrong, and in the succeeding paragraphs will suggest them.

I. I am not unmindful of our previous rulings upon several of the questions I shall discuss. The harsh facts of this case furnish me further excuse to reiterate what I said in Babcock v. Adams, 196 S. W. l. c. 1120. I then said: “I have long had in mind the idea that we have misconstrued Section 1881, Revised Statutes, 1909, when read in connection with the Married Woman’s Act. In origin this statute antedates the Married Worn-an’s Act. It was at the time of its first enactment expressive of common-law doctrines. At its inception married women belonged to a class suffering disabilities, so far as the right to sue was concerned. This Section 1881 excepted the class (married women) from the limitations prescribed by Section 1879, Eevised Statutes 1909, which is the ten-year Statute of Limitations. But for the exception the married woman would have fallen under the ban of said Section 1879. This exception made by Section 1881 was written into the law because of the then inability of a márried woman to sue and recover her real estate. "When the Married Woman’s Act was passed all reason for the exception vanished. By Section 1881 she was not excepted for the reason that she was a married woman, but because she belonged to a class laboring under disabilities. When the disabilities were removed from the class (as they were by the Married Woman’s Act), then the excepted class was in effect removed from the statute, and as to Statutes of Limitations the married Avoman stood just as all other persons sui juris stand; in other words, the effect of the Married Woman’s Act was to repeal and modify the terms of the statute, to the extent of taking this excepted class (married women) out of Section 1881.

“Since the passage of the Married Woman’s Act there is no reason for saying that a man or single Avoman must sue for lands within ten years, but the married woman, possessed of all the rights to sue as the others should have the statute tolled in her favor. I am aware that our opinions are the other way, but these have long since been my views, and I take this occasion to express them.”

It will be noted that I concurred in the Babcock case, solely on the ground that our previous rulings constituted rules of property, and to disturb them would be to disturb property rights. But since that time we have in the case of Klocke v. Klocke, 276 Mo. 572, ruled that the overruling of an opinion of this court, Avhioli construed a statute of the State, would not effect previously acquired property rights. In other words, the ruling in the case which overruled such previous opinions would he prospective only and not retroactive. It becomes necessary at times to overrule opinions construing statutes, and which opinions have fixed rules of property. But, in view of the rule in the Klocke case, supra, this should not deter us in righting a wrong, when the mischief is such as to demand it.

In 7 R. C. L. p. 1008, the idea is most elegantly expressed: “If judges were all able, conscientious, and infallible; if judicial decisions were never made except upon mature deliberation, and always based upon a perfect view of the legal principles relevant to the question in hand, and if changing circumstances and conditions did not so often render necessary the abandonment of legal principles which were quite unexceptionable when enunciated, the maxim stare decisis would admit of few exceptions. But the strong respect for precedent which is ingrained in our legal system is a reasonable respect which balks at the perpetuation of error, and it is the manifest policy of our courts to hold the doctrine of stare decisis subordinate to legal reason and justice, and to depart therefrom when such departure is necessary to avoid the perpetuation of pernicious error.”

I think we went wrong in the early cases of Throckmorton v. Pence, 121 Mo. 50, and Lindell Real Estate Co. v. Lindell, 142 Mo. l. c. 76, when we held that under the Married Woman’s Act of 1889, a married woman did not have to sue until she became discovert. There were two lines of thought in the early, cases at the time of our first ruling. One line held that the Married Woman’s Acts (similar to our own) gave a married woman the right to sue whilst she was covert, but she was not obliged to sue where there were statutes (like our Secs. 1881 and 1894, R. S. 1909) which excepted married women from the usual statutes of limitations. The other line of cases held, that the force and effect of the Married Woman’s Act were to strike this exception as to married women from all tolling statutes, such as our Sections 1881 and 1894, supra. Our court-followed the first named line of cases, and herein much of' our trouble, and all of our harsh case law. I think we erred in the two cases above cited, and under the Klocke case, supra, we can change the rule without prejudicing property rights. We should hold that the effect of the Married Woman’s Act of 1889 was to strike from our Section 1881, Revised Statutes 1909, the exception as to married women. It was then Section 6767, Revised Statutes 1889. Not only so, but it would strike a similar exception from Section 1894, Revised Statutes 1909, which was Section 6779, Revised Statutes 1889.

The cases to be overruled are all oases construing' statutes, and under the ruling in Klocke’s case, supra, no baneful effects will follow. There is no sense in saying (since the Act of 1889 as to married women; that a man or a single woman must sue within the statutory period in order to protect their rights, and that a married woman, with the. same legal right to sue, may postpone her action until she becomes discovert. There was no reason for giving her the right, unless she was to be required to exercise it, as a femme sole. The very purpose of the law was to place her in the position of a femme sole. She needed no statute to give her the right to sue after she became discovert.

The two statutes (Secs. 1881 and 1894, Revised Statutes 1909) had the exceptions therein as to married women stricken therefrom per force of the Act of 1889 as to married women. We should have so ruled from the beginning. We will have to so rule, or 'be troubled with other harsh and unrighteous cases, as is the case at bar. It will be noted that the two sections cover all kinds of actions, and that the exceptions are the same in each. With these exceptions stricken from these statutes, we are permitted to get to the meat of the instant case.

II. It is urged that the plaintiff in this ease could not sue for the possession, because her husband was yet alive. Under our holdings, I shall grant this proposition. But that concession does not settle the case. ^ the tolling statutes (Sections 1881 and 1894, R. S. 1909) no longer contain an exception as to married women, then this plaintiff is not necessarily protected by the fact that her husband, up to the date of the deed had the right of possession, and that after the deed the defendants and then their predecessors in title had the right of possession.

By the Act of 1897, which, with its amendments, is now Section 2535, Revised Statutes, 1909, the plaintiff was given a cause or right of action, and a remedy. This right of action has been in her since 1897. It is this identical right of action that she is now attempting to enforce. In other words her present suit is predicated on Section 2535, supra, and is the same suit that she could and should have brought in 1897. Estoppel in pais is duly pleaded. Not only so, but well shown in the evidence. In other words, the record tends to show improvements on the land since 1897. A levee was completed in 1896, since which drainage of the land by a drainage .plan has been perfected. Many improvements were made since 1889, including the levee. Four or or five houses have been built upon the land, whilst there was but one in 1882. But it suffices to say that the evidence tends to prove improvements made since 1897.

Mrs. Powell should have brought this suit when the right was first given her so as to stop these improvements. Failing to do so she is estopped now from maintaining the very suit she should have brought in 1897. She knew that her grantee would claim the full title from the date of her deed in 1882. She recognized this claim of full title, as is shown by her evidence. She knew that improvements would be made. She knew all these things, and is now fully estopped from maintaining this particular action, because defendants were permitted to act to their detriment. And this is true, although in a possessory action (not yet accrued under our rulings) she may be able to recover possession.

We are not discussing laches, but estoppel in pais. We undertook to say that there was a difference betAveen the two doctrines in Kellogg v. Moore, 271 Mo. l. c. 193 et seq. After disposing of the question of laches in our paragraph 2 in that opinion, estoppel in pais is disposed of in paragraph 3 of that opinion. So that Ave hold that plaintiff is clearly estopped from maintaining this particular action, because (eliminating from our tolling statutes Sections 1881 and 1894, supra) the exception as to married women she had an unrestricted right to bring her action, and thereby forestall the improvements thereafter made. At that time she had the clear right not only to sue, but the clear and unobstructed right to contract. At that time she could have contracted as to her alleged reversionary interest, and having the right to contract with reference thereto, and to convey the same, the doctrine.of estoppel in pais will apply. At that time she had all rights to sue and to contract, save and except the right to sue for possession. We concede that where one cannot sue to protect rights, she can’t well be estopped. We further concede that when one cannot be bound by contract she may not be bound by estoppel. But these concessions do not reach this case. In this very case she is trying to enforce a right which could have been enforced from 1897 to the present. As to her, the doctrine of estoppel in pais was properly invoked, and if sustained by the facts, should preclude this particular action. Whether she may have a more successful form of action when her husband dies, is another question. It is to be hoped that some Providential act may obviate the harsh rules of law, and save defendant from dire results. But her own conduct estopped her as to this particular action.

Estoppel in pais is not dependent upon limitations, nor is it confined to equitable actions. The doctrine was and is recognized in common law courts. [16 Cyc. 682.] In that it differs from laches. [Kellogg v. Moore, 271 Mo. l. c. 193 et seq.] Estoppel in pais may be set up as a defense in actions at law as well as in equity. [16 Cyc. 725.] Nor is this all. The doctrine goes to the remedy which many invoked, as well as to the right. [16 Cyc. 722.] We emphasize this, because the conduct of the plaintiff in this case has justified the invocation of estoppel in pais, as to the remedy, i. e. this, particular suit. So I conclude that the judgment nisi in this suit was well within legal bounds, whatever may be the result of a future possessory action, and irrespective of any statute of limitations. The judgment should be affirmed and I so vote.


author: BOND, C. J.

text:
    THE STATE ex rel. JEFF D. McCUNE et al., Appellants, v. ALEXANDER CARTER et al., Constituting the Board of Equalization of Audrain County.
    Division One,
    July 9, 1919.
    1. BOABD OP EQUALIZATION: Constitution: Certiorari. In a certiorari brought to quash the record ot a county board of equalization, if the record shows on its face that the officers designated by the statute were named as composing the board and that they were present at its meetings, it cannot be held that such persons were not de jure members of the board, or that said board was illegally organized.
    2. -: Jurisdiction: Insufficient Notice: Appearance. Whether or not the notice to the taxpayer that an increase in the assessed valuation of his property was sufficient, if he actually appeared before the board of equalization and the matter was continued, and before such increase was made he appeared specially and filed his objections thereto, his appearance vested'the board with jurisdiction.
    3. -: Amending Becord: Classification. Amendments of the records of the board of equalization, made prior to its final adjournment by the direction of its presiding officer, which did not change the amount of the increase in the taxpayer’s assessment, but simply specified the classes of property to which it was applicable, did not oust the board of jurisdiction, or impair the validity of the increase.-

      4. -: Trebling Assessment. The County Board of Equalization, after .increasing the taxpayer’s assessment to equal the amount of property owned by him, is by statute given power to treble the assessment upon a finding that he has given a false list.
    5. -: Increasing Assessment: Certiorari. In reviewing the action of the County Board of Equalization by certiorari the courts cannot go beyond the face of its record; and since under the statute it had authority to increase the assessment of the property returned by the taxpayer, and to add that omitted, if It had knowledge of facts justifying such action, it will not be held on certiorari that it exceeded its statutory powers, if it heard evidence before it made the increases and it is not denied that the taxpayer owned property equal to the amount of the increased valuation.
    Appeal from Audrain Circuit Court. — lion. Ernest S. Gantt, Judge.
    Aeeirmed,.

      E. A. Shannon and Pearson & Pearson for appellants.
    (1) Statutes imposing taxes are strictly construed against the State, and in favor of the taxpayer. 37 Cyc. 768; State ex rel. v. Alt, 224 Mo. 513; State ex rel. v. Lesser, 237 Mo. 318; State ex rel. v. Scullin, 2G6 Mo. 331; State ex rel. v. St. L. Co. Ct., 13 Mo. App. 54; City of Hannibal ex rel. v. Bowman, 98 Mo. App. 199. (2) A county board of equalization is a court of limited and inferior jurisdiction. Section 11402, R. S. 1909; Washington Co. v. Railroad, 58 Mo. 379. (3) Where the proceedings of inferior courts whose methods of procedure are not in accordance with the courts of the common law, are called in question, jurisdiction will not be presumed; but must of necessity appear, and be distinctly disclosed by the record, on the face of the proceeding; and can receive no help from intendments or implications. Cunningham v. Railroad, 61 Mo. 36; State ex rel. v. County Court, 66 Mo. App. 99; Rousey v. Wood, 57 Mo. APP- 658. The record of such courts must show the existence of all facts necessary to give jurisdiction over the subject-matter, and the parties. Schell v. Leland, 45 Mo. 294; State v. Metzgler, 26 Mo. 66; Corrigan v. Morris, 43 Mo. App. 461; Fisher v. Davis, 27 Mo. App. 327. If such jurisdiction does not appear upon the face of the proceedings, their acts are void. Haggard v. Railroad Co., 63 Mo. 303. (4) The law requires, that an accurate and detailed record of the proceedings and orders of a board of equalization must be kept, showing distinctly, when it is raising the valuation of property already assessed; and, when it is adding and. assessing other property “omitted from the assessor’s books,” designating in each instance, the “kind and class” of property raised, or assessed. Secs. 11404, 11407, R. S. 1909; State ex-rel. v. Cunningham, 153 Mo. 653; Washington Co. v. Railroad, 58 Mo. 378. (5) When the valuation of property listed and assessed is raised, or property “omitted from the assessor’s books” is assessed, a notice must, in either case, be served on the property owner stating the “kind and class” of property raised or assessed and the value fixed thereon by the Board; and the record of the board should show, and such notice should distinctly state whether the action of the board was on the property listed and assessed or property omitted from the assessor’s books, and by it assessed for the first time. Secs. 11404, 11407, R. S. 1909; State ex rel. v. Cunningham, 153 Mo. 653; Washington Co. v.-Railroad 58 Mo. 378. (6) A notice, such as the law requires to be given, on increasing the valuation of property or already assessed, or assessing property “omitted from the assessor’s books,” is essential to the validity of the proceeding. Sec. 11407, R. S. 1909; State ex rel. v. Springer,. 134 Mo. 224. (7) A property owner does not waive his rights to a legal notice, by appearing for the sole purpose of objecting to the invalidity and insufficiency of the notice served on him, and to the jurisdiction of the board to act under the premises. His appearance for a special purpose constituted no waiver of any valid objection which he had to the defective process and service; for a party who is in court for one purpose, is not necessarily in for any other purpose. Schell v. Leland, 45 Mo. 293; Thompson v. Ey. Co., 110 Mo. 156. (8) The board of equalization acts judicially in either raising the assessments already listed; or, in assessing property “omitted from the assessor’s books.” In raising the assessment of property already listed or in assessing property “omitted from the assessor’s books, the board of equalization must have evidence before it, or its act will be invalid. Secs. 11406, 11407, E. S. 1909 ; Washington Co. v. Eailroad, 58 Mo. 378; State ex rel. v. Scullin, 266 Mo. 331. The record of the proceedings of the board should contain a statement, that evidence was taken and heard in either raising assessments of property already listed, or in assessing property ‘ ‘ omitted from the assessor’s books.” Washington Co. v. Eailroad, 58 Mo. 378. (9) On and after the 4th Monday of April, a board of equalization ceases to act as such, but is simply a board of appeals; and has power and authority as such to hear complaints from the property owner, on the action of the board of equalization, in either raising the valuation of his property already assessed, or in assessing property “omitted from the assessor’s books;” and, can only “change or alter the same, upon it being shown by the said owner that said assessment was erroneous, or improperly made; otherwise said property and the valuation as (previously) fixed by said board, shall be extended upon the assessor’s books, as in case of other property.” And, it has no power or authority (on its own initiative, the property owner not appearing), to hear evidence or change the valuation thitherto raised or assessed. Sec. 11407, E. S. 1909. (10) A board of appeals has no authority to treble assessments before the board of equalization shall have had a notice filed with it, by the assessor, that the property owner has made out a list “with intent to defraud,” and said board shall have given notice thereof to the property owner who shall have furnished such false list which notice was to specify the particulars in which said list is alleged to have been false. Sec. 11354, R. S. 1909; State ex rel. v. Baker, 170 Mo. 390. (11) The clerk had no right to change the record, in vacation of. the board, upon the order, or at the dictation of any one. Sec. 11405, R. S. 1909; State ex rel. v. Wray, 55 Mo. App. 654; Corrigan v. Morris, 43 Mo. App. 461; State ex rel. v. Scullin, 266 Mo. 331. A change in the record, after it had been writttn up by the clerk, and a certified copy of which had been served on the property owner, was a fraud on the property owner. In doing so, it was wilfully depriving him of knowledge of the true record of the alleged board’s proceedings against his property. Washington Co. v. Railroad, 58 Mo. 378. (12) “Under our system of taxation, there can be no lawful collection of a tax until there is a lawful assessment; and, there can be no lawful assessment, except in the manner prescribed by law and of property designated by law for that purpose.” State ex rel. v. Lesser, 237 Mo. 318.

      A. C. Whitson for respondents.
    (1) The rule of strict construction in tax proceeding does not obtain in this State and has not since the decision of State ex rel. v. Bank, 120 Mo. 161; State ex rel. v. Timbrook, 240 Mo. 236, 238; State ex rel. v. Wilson, 216 Mo. 286; Sec. 11383, R. S. 1909. (2) The board of equalization is not a court of limited jurisdiction. Secs. 11402, 11409, R. S. 1909; Secs. 11747, 11748, R. S. 1909. It has full power and it is the duty of the board to assess and to equalize the valuation and assessment of all property both real and personal within the county. Sec. 11403, R. S. 1909; 15 C. J. 982, sec. 414, note 15. Diehl v. Page, 3 N. J. Eq. 143; William v. Ball, 52 Tex. 603; State ex rel. v. Harrison, 226 Mo. 174; State ex rel. v. Springer, 134 Mo. 212. (3) The county clerk is by the statute (Sec. .11402, R. S; 1909) made secretary of the board of equalization, and as such had a right to correct its records to speak the truth at any time before final adjournment of the board. The board may at any time before final adjournment correct its records. State ex rel. v. Board, 108 Mo. 235; State ex rel v. Ray, 55 Mo. App. 647; Henry County v. Salmon, 201 Mo. 151; Williams v. Silvy, 84 Mo. App. 433; State v. Jeffries, 64 Mo. 376; Becker v. Schutte, 85 Mo. App. 65. The record of the board of equalization was sufficient without any correction as made by the clerk showing the classification of the property added to the assessment list. State ex rel. v. ■ Trust Co., 261 Mo. 448. (4) The board has a right to add omitted property to the assessment list, or to assess omitted property even though no list be given. Sec. 11407, R. S. 1909; State ex rel. v. Trust Co., 261 Mo. 448; State ex rel. v. Timbrook, 240 Mo. 236. The respondent, Guy McCune, having given a false list, the hoard had a right to treble his assessment. Sec. 11354, R. S. 1909; State ex rel. v. Baker, 170 Mo. 391. The procedure in adding omitted property and in adding property where a false list is given is the same. In re Sanford, 236 Mo. 686. (5) The respondents having appeared before the board, the form of the notice or Avhether or not notice had been given- at all is immaterial. On their appearance the board had jurisdiction, and by such appearance appellants waived the giving of notice and its form and such appearance cured all defects in the notice. State ex rel. v. Baker, 170 Mo. 390; State ex rel. v. Trust Co., 261 Mo. 455; State ex rel. v. Board, 108 Mo. 243; Cooley on Taxation (3 Ed.), p. 783; Smith v. Kiene, 231 Mo. 222; State ex rel. v. Galord, 73 Wis. 306; Brown v. Weatherhy, 71 Mo. 152. (6) The presumption is that the board heard evidence, and that the procedure was lawful. The board has power of its own knowledge to add omitted property or to raise the valuation of property assessed. State ex rel. v. Springer, 134 Mo. 225; Hannibal Railroad v. Board, 64 Mo. 309. (7) While the 'board of equalization is required to hear appeals on the 4th Monday in April, it is the same board and its labors are not necessarily to be completed at that time. Sec. 11404, R. S. 1909; State ex rel. v. Vaile, 122 Mo. 43. The record as returned by the respondents, and as proved at the trial, shows a record kept by the County Clerk of Audrain County, in ‘ ‘ County Board of Equalization Record B, Audrain County.” That the board met at the time as required by law (Sec. 11402, R. S. 1909), and was composed of the officers designated by the statute.
   BOND, C. J.

Certiorari by the Circuit Court of Audrain County, directed to respondents, the Audrain County Board of Equalization, in their official capacity, requiring them either to have the original record and papers, or to certify to said court a true, full and complete copy of their record as made at their respective sessions, April 3rd, April 24th and May 15, 1916, together with a copy of the several demurrers or pleas in abatement to the jurisdiction of said alleged board, filed in said proceedings by appellants, Jeff D. and Guy McCune, on May 15, 1916, in order that the cir'cuit court might adjudicate upon the legality of such proceedings.

In their petition for said writ of certiorari, relators state that they are residents of Vandalia, Missouri; that the respondents compose the County Board of Equalization of Audrain County; that at a certain meeting o±‘ said board on April 3, 1916, the board raised the assessment of relators, and thereafter duly notified them that the board would meet on the fourth Monday in April, 1916, “to hear reason, if any be given, why such increase should not be made; ’ ’ that on April 24, 1916, said hearing was continued until . May 15th; that on May 12th, relators, with their áttorney, examined the record of said board, and thereupon each had prepared and thereafter filed, a demurrer to the jurisdiction of said board, on the ground that its action was illegal and void for not setting out the class and kind of property and the amount raised on each, as required hy law; that sometime between May 12th, the date on which they examined the record of the board, and May 15th, the date to which their hearing was continued, the record of said board dated April 3rd, “was altered, mutilated and changed by some one other than the Clerk of the County Court of Audrain. County. ”

At the trial the record of the board, which was introduced in evidence, showed that on April 3, 1916. the board met; that among other business transacted, the board raised the assessment of Guy McCune, Jeff McCune and of Guy and Jeff McCune as follows:

“Personal Raised. Jeff D. McCune — from $500 to $75,000 ($74,500 in money, notes and bonds; classes 5-6-7-8-9; $500 all other personal. Mayor and city assessor not voting).

“Jeff and Guy McCune — from $100 to $15,000 (Money, notes and bonds; classes 5-6-7-8-9. Mayor and city assessor not voting).

“Guy McCune — $650 to $4,000 ($3,350 money, notes and bonds. Classes 5-6-7-8-9, and $650 all other personal. Mayor and city assessor not voting).”

The following also appears in the records of the board of date Monday, April 24, 1916.

“County Board of Equalization met pursuant to adjournment with J. W. Beagles, C. C. Bledsoe, Judges of the ‘County Court, and T. J. Kelso, County Assessor, J. W. Dry, Ex-mayor of the City of Mexico and J. T. Marshall, Assessor of the City of Mexico, present and the following business was transacted, to-wit:

“Presiding Judge Alex Carter being absent Judge C. C. Bledsoe was elected to preside over the meeting by the board. Jeff D. McCune appears before the board and on his application and by order of the board the hearing of his protest on increase of assessment was continued to Monday, May 15, 1916.

‘ ‘ Guy McCune appears before the board and on his application, and by order of board the hearing of his protest on increase of his assessment was continued to Monday, May 15, 1916.

“Jeff and Guy McCnne appear before tbe board and on tbeir application and by order of board, the bearing of tbeir protest on increase of assessment was continued to Monday, May 15, 1916.

“All other items as shown on tbe meeting of board .on April 3, 1916, and not shown on minutes of this meeting, were ordered left as raised by board April 3rd. Tbe boar dadjourned to meet Monday, May tbe 15th, 1916.”

Tbe following also appears on tbe record of tbe board under date May 15, 1916:

“Eugene Pearson, an attorney, appears for Jeff D. McCune and for Guy McCune; and for Jeff D. and Guy McCune jointly, and filed motions for each of the above parties.

“Motion was made and carried that tbe motions as filed by Eugene Pearson for Jeff D. McCune, and for Guy McCune and Jeff D. and Guy McCune, jointly, be not made a matter of record.

“Evidence on tbe assessment of Jeff D. McCune was beard.

“Evidence on tbe assessment of Guy McCune was beard.

“Evidence on tbe assessment of Jeff D. and Guy McCune was beard.

“Motion made and carries that the assessment of Jeff D. and Guy McCune be $15,000 in money; notes and bonds (Classes 5-6-7-8 and 9) as raised April 3rd, 1916.

“Motion made and carries that tbe assessment of Jeff 'D. McCune be $74,500 in money, notes and bonds (Classes 5-6-7-8 anl 9) and $500 all other personal as raised April 3, 1916.

“Motion made and carries that tbe assessment of Guy McCune be placed at $7,732 in money, notes and bonds (classes 5-6-7-8 and 9) and $150 all other personal property.

“Motion made and carries that tbe assessment of Guy McCune be trebled as a penalty for giving a fraudulent list making bis assessment $23,646, $450 in class 4 and $23,196 in money, notes and bonds, classes 5-6-7-8 and 9.”

Tbe change of the record of the meeting of April 3, 1916, consisted in the addition thereto of the various classes of property • to which said increases were referable. As to these matters Eos Cauthorn testified that he was Clerk of the County Court; that the entries of April 3rd, April 24th and May 15, 1916, were all in his handwriting; that the writing on the margin (of which complaint is made) was added “after his [Mr. Pearson’s] visit on May 12th” and that he (Cauthorn) “wrote it there by order of the presiding member of the board of equalization . . . and it was read and approved at the last meeting.”

On cross-examination by Mr. Pearson, witness Cam thorn testified as follows:

“Q. What was the occasion of your making this change? A. I was ordered to do so by the county judge, Judge Bledsoe. . . .
“Q. What did the judges say when they came in your office? A. Well, Judge Carter said he didn’t approve that record as it was. Looked it over and said ‘I won’t approve that record as it is.’ ...
“Q. That was after May 12th when Mr. Pearson was there?. A. Yes, sir.
“Q. And before May 15th? A. Yes, sir. . . .
“Q. Didn’t you think it was a little strange he should come in there and order you to make the change in this proceeding? ... A. No, I don’t see why it should if his attention was called to it and he came and looked it over. I don’t see why it should be strange at all.
“Q. Does the board examine your record for the purpose of approval? A. Well, not often. Occasionally they look it -over, especially if they have anything special in their mind that they are not clear about they come and look it over.
“Q. And order you to change it? A. Yes, sir. I changed county records that way.”

The court found the issues for respondents and ordered and adjudged that relators take nothing by their writ and that the same be quashed, from which finding and judgment relators duly appealed.

I. Appellants complain that the record discloses that the board of equalization was illegally organized. The record shows beyond controversy that the persons acting as members of the board were those Poised out in the statute; that the board as so organized convened at the times prescribed by the statute and proceeded to discharge the duties imposed on the Board of Equalization of Au-drain County, Missouri. The certification of its records by the Clerk of the County Court recited them to be the proceedings of the Board of Equalization of Au-drain County, Missouri. This proceeding is one by certiorari to quash the proceedings of said board of said county and State, in so far as they increase the assessment of taxes against relators jointly and severally. It is not within the scope of the present proceeding to question the organization de jure of the Board of Equalization of Audrain County. We, therefore, put that contention aside.

II. It is however contended that the board of equalization failed to notify defendants of its action ■ increasing their assessments, and that such notice was jurisdictional. The answer to this is that the relators were notified and thereafter appeared at the meeting of the board on April 24th and upon their application the matters were continued until the meeting to be held on May 15th. This general appearance of relators vested the board with jurisdiction, even if there was any defect in the prior notice to them. [State ex rel. v. Baker, 170 Mo. l. c. 390 et cases cited.] At the subsequent meeting of May 15th, relators again appeared, and this time specially, and filed objections in writing to the orders of the board increasing their assessments. This appearance at the adjourned meeting of the board though in limited terms, could not in any way detract from the jurisdiction which the board acquired by virtue of the previous general appearance on April 24th. We hold, therefore, that there was no lack of jurisdiction on the part of the board to deal with the question of increasing the assessment of the property of relators, as shown by the face of its record.

III. One of the points made in the written objection filed by relators at the board meeting of May 15th, 1916, was that the records of the board had been altered or changed so as to specify the respective property on account of which the increased assessments were made. The record abundantly shows that these amendments of the records of the board were made prior to its final adjournment by the direction of its presiding officer. The amendments did not change the amount of increase, but simply specified the class of property to which it was applicable. It was clearly within the right of this body to make its records speak the truth, whe,n, in so doing, no legal injury was inflicted. These amendments could not have prejudiced relators if they owned the property specified, which does not seem to be denied. [State ex rel. v. Buchanan Co. Board Equal., 103 Mo. 235; Henry Co. v. Salmon, 201 Mo. l. c. 151.] We hold, therefore, that they did not oust the jurisdiction of the Board. [State ex rel. v. Trust Co., 261 Mo. l. c. 455; R. S. 1909, sec. 11407; State ex rel. v. Timbrook, 240 Mo. 236.]

IY. It is also claimed on behalf of one of the relators that the board acted without jurisdiction in trebling his assessment. This contention cannot be sustained under the facts shown in this record. The action of the board in trebling the assessment in question was based upon a finding that the relator had given a false list. [R. S. 1909, sec. 11354; State ex rel. v. Baker, 170 Mo. l. c. 392; In re Sanford, 236 Mo. 686.]

Y. It affirmatively appears in the records of the hoard that it heard evidence as the basis of the increased assessments of relator’s property. Under the statute it had the right to increase the assessments of the property returned, or to assess that omitted, or to do both, if it had knowledge of facts justifying such action. [R. S. 1909, sec. 11407.] In the matters complained of it did not act of its own knowledge, but took proof. It was charged with the duty of assessing and equalizing the valuation of all the property within the county, and seems to have been actuated by that wholesome motive in making the orders complained of. We are unable to perceive from the records before us that the board has transcended its statutory power or has violated the law in the matter of assessing the property of relators. In reviewing its action we cannot go beyond the face of the record under the decisions of this State.

It necessarily follows that the writ of certiorari was properly quashed by the trial court and that' its judgment must be affirmed.

It is so ordered. Blair,. P. J., and Graves, J., concur.