author: BOND, C. PER CURIAM:

text:
    SOUTHERN BANK OF FULTON, Appellant, v. RICHARD H. NICHOLS et al.
    Division Two,
    June 20, 1911.
    1. RESULTING TRUST: Deed to Husband: Bought With Wife’s Choses: Reduction to His Possession. Where the only consideration for the individual deed from the administrator of the estate of the wife’s father to her husband was a release of her share of the personal estate, a trust resulted to her the moment the deed was executed, whereby she became the equitable owner of the property, and the legal title in her husband was held by him in trust for her as the beneficial owner, unless her interest in her father’s personal estate was actually or constructively reduced to his possession jure mariti by the husband before or contemporaneously with the making of the deed to him.
    2. -: -: -:--: Intention. A husband exercising his common law right during coverture to acquire title to his wife’s choses in action must intend, by the act by which he possesses himself of her property, to make it his own. If his intention is not to so exercise his marital right as to make the property his own, but to act only for and on behalf of her, then an act which otherwise under the common law would amount to a reduction to his possession will not have that effect.
    S. -: -: -: -: -: Giving Joint Receipts. Where the wife and husband gave a joint receipt to the administrator of her father’s estate for her interest in his personal estate, and a similar joint receipt to the sheriff to cover the wife’s interest in the proceeds of sale in partition of her father’s land, but in neither case was any money received by either, and the evidence is clear and positive that their intention in so doing was that the receipts might be used by the administrator and sheriff in full acquittance of payments of money to her and her husband, and that this money was to be-the purchase price for the land in suit, and the individual deed! of the administrator was made to the husband and recorded,, and was found among the grantor’s papers after his death, and the husband testified that he never bought any land from the-grantor, and never paid anything for the land conveyed, and never knew the land had been conveyed to him until after the-grantor’s death and until after his indebtedness to plaintiff had arisen, it will be held that the husband had hot reduced the-wife’s choses in action (her interest in her father’s estate) to his possession, and that a resulting trust in the land in favor of the wife existed from the time the deed to the husband was made.
    4. -: -: -: Laches: Estoppel: No Knowledge. Where the land, bought with the wife’s money, was conveyed to her husband in 1868, and the deed was recorded, hut kept by the grantor until after his death, and the husband paid the taxes and the family lived upon the land, recognizing it as hers, and she had no knowledge that the deed named her husband as grantee until after plaintiff’s claim against him as surety on a note had originated, and she promptly asserted her title at public outcry when the sheriff in 1901 undertook to sell the land under plaintiff’s judgment against her husband, and set up her title as soon as she was made a party to the litigation, she is not barred either by laches or estoppel to assert her equitable title against plaintiff.
    Appeal from Callaway Circuit Court. — Hon. B. S. Byors, Special Judge.
    Affirmed.

      T. A. Boulware, I. W. Boulware, and Silver é Dumm for appellant.
    (1) The Supreme Court is not bound by the finding of the trial court in an equity case. Bank v. Nichols, 202 Mo. 309; Lacks v. Bank, 204 Mo. 479; Waddington v. Lane, 202 Mo. 415; N. E. Trust Co. v. Browne, 177 Mo. 412; Swon v. Stevens, 143 Mo. 396; Benne v. Schnecko, 100; Mo. 251. (2) The marriage of Mary A. Nichols and R. H. Nichols having taken place in the year 1862, that is, prior to the taking effect of the Married Woman’s Act of March 25, 1875 (Laws 1875, p. 61), the right of the husband, R. H. Nichols, to the personal property and choses in action of his wife was not affected by that act. Smith v. Smith, 201 Mo. 549; Winn v. Riley, 151 Mo. 61; Leete v. Bank, 141 Mo. 584; Leete v. Bank, 115 Mo. 185; Claves v. Wood, 87 Mo. App. 92; Nat’l Bank v. Fry, 168 Mo. 492; Terry v. Wilson, 63 Mo. 493. Conceding here for sake of ar.gument the contention of respondent’s counsel, and the theory on which the case was tried and decided below, that the distributive shares or interest of Mrs. Mary A. Nichols in her father’s estate .constituted the real consideration to Felix Gr. Nichols for the deed of March 20, 1868, to Eichard H. Nichols, yet such shares and moneys so going to Mrs. Nichols being choses in action were susceptible of reduction to possession by her husband, Eichard H. Nichols. Further, the matters in evidence and all the attendant circumstances show such reduction in law to the husband’s possession, and such being the case, the deed of March 20, 1868, legally vested the title to the land conveyed by Felix Gr. Nichols in Eichard H. Nichols, and MÍary A. Nichols for that reason is not the equitable owner of said land, and cannot prevail in this action. 1 Bishop on Law of Married Women, sec.-117; Howard v. Bryant, 9 Cray (Mass.) 239; Dixon v. Dixon, 10 Ohio, 116; Needles v. Needles, 7 Oh. St. 437; Griswell v. Penniman, 2 Conn. 564. The evidence shows that E. H. Nichols, the husband, as well as the wife, executed the receipts to the administrator for the wife’s share of the personal estate of her father, William Nichols, and that similar receipts were executed to King, the sheriff, for the proceeds of the partition sale. The purport and effect of the husband’s conduct was in law to reduce to possession and to appropriate the moneys due his wife from the estate of her deceased father. It is wholly untenable to say that he did not know the deed was made to him, or that it was not delivered to him. • Whatever ought to have been known from an examination .of the land records, the law presumes was learned. Dickinson v. Bridges, 147 Mo. 245; Johnston v. Standard Oil Co., 148 H. S. 360. Again, the fact that E. H. Nichols made and executed the deed to his children on November 29, 1899, shows his knowledge and acceptance of the prior deed to him. Hall v. Bank, 145 Mo. 418; Benton Land Có. v. Zeitler, 182 Mo. 82; Peters v. Berkemeier, 184 Mo. 402. The parol evidence or oral statements of R. H. Nichols that he only intended to convey his wife’s interest, of course, are of no value. The language of the deed controls;, it speaks for itself. Gorton v. Rice, 153 Mo. 676; Johnson Co. v. Wood, 84 Mo. 513; Hydraulic P. B. Co. v.. Neumeister, 15 Mo. App. 592.

      A. Finley and Karris. & Kay for respondent.
    (1) The undisputed evidence in this case is to the effect that the land in controversy was exchanged by Felix G. Nichols to Mary A. Nichols, respondent, for the latter’s interest or share in her father’s estate; and that'her said interest or share in her father’s estate constituted the entire consideration received by said Felix G. Nichols for said land. Hence, whether the deed subsequently executed by Felix G. Nichols to R. H. Nichols, husband of Mary A.' Nichols, was in legal effect delivered to R. H. Nichols (as appellant contends) or was not delivered (as respondent contends), Mary A. Nichols is the equitable owner of said land and is entitled to decree vesting title in her. Shaw v. Shaw, 86 Mo. 594; P'lumb v. Cooper, 121 Mo. 668; Hardware Co. v. Horn, 146 Mo. 129; Crawford v. Jones, 163 Mo. 577; Prewitt v. Prewitt, 188 Mo. 675; Frost v. Frost, 200 Mo. 474; Heil v. Heil, 184 Mo. 675. The evidence in this case meets all the requirements of the strict rule of proof in cases of this character. The evidence both oral and documentary is clear and conclusive. Crawford v. Jones, 163 Mo. 577; Prewitt v. P'rewitt, 188 Mo. 675'. (2) Respondent as heir and distributee of her father’s estate had an interest in both the realty and the personalty of said estate. Her interest in the realty passed to her direct as heir, and title thereto vested in her and not in her husband. Her interest in the personalty of her father’s estate passed to the administrator of said estate and she was not ■entitled to possession of her share or part of said •estate until final settlement of, and distribution of the proceeds of the estate by the administrator. Inasmuch as respondent, with the consent and approval of her husband, prior to the partition and sale of the realty, and prior to the final settlement of, and distribution of the proceeds by the administrator, exchanged her interest in the estate,- both real and personal, for the land in controversy, it cannot be said that her interest in the said estate ever was reduced into the possession of her husband. Leaky v. Maupin, 10 Mo. 368; Grillet v. Camp, 19 Mo. 404; Wood v. Simmons, 20 Mo. 364; Croft v. Bolton, 31 Mo. 355; Green v. Tilman, 124 Mo. 372.
   STATEMENT.

BOND, C.

— This case was here on a former appeal, 202 Mo. 309. In that ease the only issue was the validity of a quitclaim deed made by R. TI. Nichols to his children (which his wife refused to sign) as against a purchaser of the land at execution sale under a judgment against the grantor, obtained subsequently to the deed.

The wife of the grantor in said quitclaim deed “having refused to sign it,” this court reversed and remanded the cause. Thereupon, the plaintiff corporation filed an amended petition, stating, in substance, that it was a judgment creditor of R. H. Nichols, who executed the quitclaim deed to said land to his children to hinder, delay and defraud plaintiff, and that the grantees accepted to aid said purpose; that the deed was a cloud on said title to said land, which plaintiff had acquired by purchase at an execution sale under its judgment, and prayed the removal of said cloud and for general relief.

Mary A. Nichols, the mother of one of the grantees, who had died pending -said litigation, was made defendant, and answered separately said amended petition, and averred that she was the wife of the grantor in said quitclaim deed since their marriage in 1862; that about March 201, 1868, she purchased the' said land from one Felix G-. Nichols for the price of $1750; that the deed was wrongfully made to her husband instead of being executed to her, as the vendor had agreed to do; that her husband wrongfully quit-claimed said land in November, 1899', to their children; that the land was wrongfully levied upon and sold in 1900 under a judgment in favor of the plaintiff against her husband and another, a deed made to plaintiff, who' bought said land with knowledge of her claim of title thereto; that she was the equitable owner of said land, wherefore she prayed the cancellation of the quitclaim of her husband and the sheriff’s deed to plaintiff as clouds on her title, and that the full title to said land be adjudged to be in her.

Plaintiff replied to this separate answer of Mary A. Nichols by a general denial and the further defense of laches and estoppel, alleging delay on the part of Mary A. Nichols in the assertion of her title, and that she had permitted the deed to remain in her husband, and permitted the land to be assessed and taxed against him, and permitted him as owner of the record title to obtain credit from plaintiff. ' -

On these issues the evidence was uncontradicted, that Mary A. Nichols and R. H. Nichols were cousins and intermarried in March, 1862; that during their marriage and while the father of R. H. Nichols, to-wit, Felix Gr. Nichols, was administrator of the estate of the father of Mary A. Nichols, to-wit, "William Gr. Nichols, the said Mary A. Nichols and her husband, R. H. Nichols, signed receipts to said administrator for $464.88, on May 8', 1867, and for $69.50 on April 20, 1868; and that they also signed a receipt to the sheriff after the sale in partition of the lands belonging to' Mary A. Nichols and other children of her deceased father for the sum of $960' in April, 1868; that on March 28, 1868, said Felix Gr. Nichols recorded a warranty deed for 140 acres of land to his son A. H. Nichols for a recited consideration of $3500 in cash, which deed embraces the land in dispute in this case; that in November, 1899, R. BE. Nichols,' his wife not joining, quitclaimed the land in dispute to his- children for the recited consideration of $1500', and on the-day of 1900; said land was sold by the sheriff to satisfy an execution in favor of plaintiff and against R. BE. Nichols; that at the sheriff’s sale the said Mary A. Nichols gave public notice in writing to all concerned .that she claimed' to own in fee the land about, to be sold, of date May 20, 1901.

The plaintiff adduced other evidence tending to show that until the land was quitclaimed, it was assessed against R. BE. Nichols, who was the record owner and who paid the taxes, and with his family lived upon the land and cultivated it. After June, 1900; the land was assessed against Hershel Nichols, as agent; that it was worth $25 per acre in 1899; that when the loan was made by plaintiff a note of James I. and R. BE. Nichols was given therefor; that plaintiff’s information was that R. BE. Nichols was a landowner and would make the note good, and in that belief made the loan.

The defendant Mary A. Nichols testified on her own behalf that her interest in the personal and landed estate of her -father was estimated before distribution at $1760; that her husband’s father was administrator of her father’s estate* and while, such, and before settlement, offered her the land for her interest in the entire estate of her father, real as well as personal; that she accepted the offer and he agreed. to make her a deed to the land; that she never received any money for the receipts which she gave to the administrator and sheriff; that she gave these so that those, officers could make proper settlements; that the money represented by them was the price of the 140 acres her uncle had ag’reed to sell her for a home; that she never knew the deed had been made to her husband instead of to herself until the deed was found by one of her children in an old trunk belonging to her uncle, after his death; that she got this knowledge £i after this trouble came up.” Hershel Nichols testified this occurred one or two years after the death in 1898 of F. G. Nichols, the administrator.

Mrs. Emma Wright testified that she overheard the trade between F. G. Nichols, the administrator of the estate of the father of Mary A. Nichols, whereby he agreed to deed to Mary Nichols the 140 acres for a home in consideration that she would give him her interest in her father’s real and personal estate; that she heard this conversation while she lived at the house of F. G. Nichols, and when she was thirteen or fourteen years of age.

R. H. Nichols testified that.his father traded the land — 140 acres — for his wife’s interest in her father’s estate; that after the agreement to trade, his father said to him that he had made a deed to the land and recorded it; that witness did not see the deed; that it was never delivered to him; that he first saw it in the old trunk belonging to his father, after his death; that he and his children-thought the land belonged to his wife, and when he quitclaimed it to his children he only intended to convey his marital rights to his wife’s land.

OPINION.

I. A careful consideration of the evidence in this case leaves no room for doubt that the interest of Mary A. Nichols in the personal and real estate of her father was the only consideration received by Felix- G. Nichols for the 140 acres of land for which he recorded a deed on March 28,1868. Unless this interest in her father’s estate was actually or constructively reduced to possession jure mariti by her husband before or contemporaneously with the making of the deed to him, a trust resulted to- the wife at the moment the deed was made, whereby she became the equitable owner of the property, and the legal title in her husband was held by him in trust for her as the beneficial owner. Such equitable estate in the wife will prevail over the claims of any creditor of the husband in whom the legal title was vested, unless' such creditors should establish by proof such conduct of laches on her part as would estop her from asserting title against them. For, in the absence of a superior equity, her full equitable title would prevail against the naked trustee or his creditors.

This-narrows the case to two propositions. First, did the husband actually or constructively reduce to possession in virtue of his marital rights the choses in action belonging to his wife in 1868? Second, if not, is the wife barred either by laches or estoppel from asserting her title to the land in dispute?

Discussing the first question. In the nature of things a husband when exercising his common law right during coverture to acquire title to his wife’s choses in action must intend by the act whereby he possesses himself of the property to make it his own. If his intention is not to exercise his marital right by making the property his own but only to act for or on behalf of his wife, then the act on his part which would otherwise amount to a reduction to possession will not have that effect, and the property will not become his own even under the rules of the common law in vogue when these transactions occurred. [Schouler on Domestic Relations (5 Ed.), sec. 84; Schouler on Husband and Wife, secs. 154,155,156 and 157; 15 Am. and Eng. Ency. Law, p. 826; Winn v. Riley, 151 Mo. 61; Terry v. Wilson, 63 Mo. 499.]

It is optional with the husband whether he will reduce to possession the recoverable choses in action belonging to his wife. His right so to do is a purely personal one, which he may waive, and his creditors cannot force him to exercise it. Even when the hushand intends to make the ehoses in action of his wife his own by reducing them to his possession during coverture, he cannot do SO' by merely assigning one that is not then due or recoverable, for it would be contradictory to say that such an act reduced a thing to possession which was still only a right in action. [Croft v. Bolton, 31 Mo. l. c. 360-1; Wood v. Simmons, 20 Mo. l. c. 371; Gillet v. Camp, 19 Mo. 405.]

The only way he could reduce ehoses in action to possession in the sense used in the law would be to get satisfaction by suit or contract or by altering the securities. [Pickett v. Everett, 11 Mo. 568.]

In the case at bar the joint receipt of the husband and wife was given to the administrator before final settlement and distribution of the estate of the wife’s father, and a similar joint receipt was given to the sheriff to cover the wife’s interest in the proceeds of sale in partition of her father’s land. No money was received by either of the spouses when the receipts were given by them nor afterwards. As to their intent in so doing, the evidence is positive and clear that these receipts were to. be used by the adminstrator and sheriff in full acquittance of payments of money to the husband and wife, and that the money specified was to be the purchase price of the conveyance of the 140 acres of land by the administrator to Mary Nichols.

Under this evidence, it cannot be said that the joinder of the husband in the receipts was a reduction to his possession of the money which his wife was entitled to receive from her father’s estate, and which was not paid to either of them, but which was retained and appropriated by the administrator of the wife’s father as the consideration for the sale of a tract of land. Plainly, the husband never at any time “exercised absolute dominion over the property without the concurrence of his wife, ’ ’ intending, when so doing, to make it his own in virtue of his being her husband, which is the general test of reduction to possession. 'The law is clear that the mere joinder of the husband in the wife’s receipt for her choses in action does not constitute a reduction to possession, for that is the proper form when the fund is placed in the wife’s hands. [Schouler on Husband and Wife, sec. 154, p. 180.]

Here no money whatever was received for the receipts ; necessarily, therefore, the husband did not possess himself of his wife’s money. It could not have been, therefore, that he paid his own money for the land deeded to him by the administrator. It was clearly his wife’s money which paid for that land, and the equitable title resulted to her, since the consideration given was her choses in' action from which the vendor realized the price agreed upon.

These circumstances in connection with the testimony of the husband that he never bought any land from his father, and never paid anything for the land conveyed,-and never knew that the deed had been made to bim until it was discovered, after the death of his father and after his indebtedness to the plaintiff ha.d arisen, afford cogent and satisfactory proof justifying the finding of the lower court that Mary A. Nichols was entitled to a resulting trust in the land.

n. We do not think Mary A. Nichols is precluded from asserting her title to this land either by laches or estoppel. The record shows that she had no knowledge whatever that the deed was in the name of her husband as grantee until about two years after the •death of the grantor and after plaintiff’s claim had originated; that she promptly asserted her title by public outcry when the sheriff undertook to sell the land under plaintiff’s judgment; that she set up her title in this case as soon as she was made a party to the litigation, and asked affirmative relief.

There is no evidence in the record that she was ever advised that her husband was one of the signers of the note evidencing plaintiff’s claim, nor was there any proof that she unreasonably delayed the assertion of her title after she learned the deed was made out to her husband, which information came to her after plaintiff’s claim had arisen. If her husband was only surety on the note, it is less likely she would have known of that than if he had been principal, for in the latter case she probably would have been aware of the use made by him óf the money.

She and her husband lived upon the farm; its cultivation was largely his work and that of her children, and naturally she would have no occasion to inquire about the payment of taxes by him or whether it was assessed in her name or in his name. According to the evidence of the members of the family, as they grew up they recognized the farm as belonging to her.

We see nothing in this record giving rise to any preclusion of Mary A. Nichols on the grounds of estoppel or laches. The facts of this case do not show that she misled plaintiff or induced it to do any act, or that she intentionally concealed from it her right and title to the property in question. [Alkire Grocer Co. v. Ballenger, 137 Mo. 370; DeBerry v. Wheeler, 128 Mo. 84; Scrutchfield v. Sauter, 119 Mo. 615; Blodgett v. Perry, 97 Mo. l. c. 273.]

Our conclusion is that the finding of the trial court sitting as a chancellor was in accord with the preponderance of the competent evidence. It is affirmed.

Roy, G., concurs.

PER CURIAM:

— The foregoing report of the commissioners is hereby adopted as the opinion of the court.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    J. C. SMITH et al. v. JAMES VICKERY et al., Appellants.
    Division Two,
    June 20, 1911.
    1. TAX SALE: Deed Reciting Judgment Against Land Only: Corrected Deed. Where the court house and county records have heen destroyed by fire, and the sheriff’s deed for taxes made prior thereto recited a judgment against the land only, and twenty-three years after the sale the sheriff made a corrected deed, reciting a judgment against the owner of the land, the recital in the original deed is overcome by the ■ testimony of the sheriff that as ex officio collector he prosecuted the tax suit against the owner of the land, as well as the land, and by the testimony of two attorneys to the effect that they saw the sheriff’s notice of sale in the newspaper that had been preserved, that said notice recited a judgment against the owner of the land, and that they accordingly drew up the corrected deed in harmony therewith — there being no proof to the contrary. The presumption of law is that, in the absence of positive evidence to the contrary, public officers perform their duty in the manner directed by law.
    «?. —-: -: -: Evidence: Notice of Sale. When the records and files in a case are destroyed, the sheriff may rely upon his notice of sale in a newspaper which he has kept since the date of the' sale, in making an amended deed to correct an error in his original deed.
    3. -: - — : -■ — : Order of Court. An ex-sheriff is not required to obtain an order of court before he can make a legal amended deed to land which he sold while in office. In making such 'corrected or amended deed he proceeds under authority derived from the common law to complete and make effective acts which he began or attempted to perform while in office.

      4. -: -: -: Ño Change in Condition. Even where no proper deed was made in pursuance of the tax sale, the owner of the land, made’ a defendant in the tax suit, and his heirs after his death are required to take notice of the tax suit and sale; and where they have made no improvements or expended any money on the land, and the grantees of the purchaser at the tax sale have taken possession by authority of that sale, they are entitled to a corrected deed from the ex-sheriff twenty-three years after the sale.

      5. -: No Money Paid: Contradictory of Petition. Defendants are not required to prove allegations admitted by tbe petition to be true. So that where plaintiffs allege in their petition that the-sheriff sold the land in suit at a tax sale for $62.50, defendants are not required to rebut the testimony of the grantee named in the tax deed to the effect that he paid nothing whatever for the land, that the sheriff made him a present of the deed, in consideration of the fact that he bid off a number of other tracts for the sheriff.
    6. -: -: Relative Value of Testimony of Sheriff and' Grantee. The testimony of the sheriff that he received the. amount bid by the purchaser at the tax sale is entitled to more .weight than that of said grantee that he paid nothing for the land and the sheriff made him a present of the deed, because the presun) ption of law is that the sheriff did his duty, and did not give away land which it was his duty to sell — especially where there is no complaint that the sheriff failed to account for the amount bid by said purchaser.
    Appeal from. Pemiscot Circuit Court. — No». Henry G. Riley, Judge.
    Reversed and remanded (with directions).

      J. R. Brewer for appellants.
    (1) The ex-sheriff had power and authority to make said amended deed without any order of court, at the time he did, under the facts in the case, and this amended .deed related hack to the day of sale. L. & L. Co. v. Franks, 156' Mo. 673; Porter v. Mariner, 50 Mo. 364; Bush v. White, 85 Mo. 339; Boyd v. Ellis, 107 Mo. 394. (2) . The court erred in rejecting the old tax deed offered in evidence by the defendants for-, the reason the proof in this case shows that the amended sheriff’s deed was predicated upon this old tax deed and the evidence that the tax judgment was against Albert Smith, the father of the plaintiffs.

      Faris £ Oliver for respondents.
    (1) It will not be contended that a sheriff, either in or out of office, may not make a new sheriff’s deed in correction of a former erroneous one, but it is strenuously insisted that in so doing the sheriff and he who benefits thereby must act in a timely way. 'That there must be offered as a foundation for the-correction, some record, papers, document, or other data bearing probative force, or else that there must be some testimony, which at least partially convinces the mind that the officer is not acting arbitrarily, without recollection, without memory. No case can be found in this, or any other State, where such a. correction has been allowed without some foundation being laid therefor. (2) It is not here a pertinent, question as to whether the .sheriff had authority to make a corrected deed; the controlling question is:: Did he have data, or memory, or recollection, upon which to base his- alleged correction?- If so, were these-sufficient facts for this purpose shown to the court? And was the correction timely made ? Ozark L. & L. Co. v. Franks, 156- Mo. 673; Porter v. Mariner, 50' Mo. 364; Bush v. White, 85 Mo. 339; Boyd v. Ellis, 107 Mo. 394. (3) No case has been found as to what constitutes a “timely application” for the correction of a deed. But in a case where a formal application to a court of record was- deemed necessary —and wherein the sheriff did not as here come forward voluntarily — it was held that thirty years was. too-long a time. Ex parte Guenzler, 6 Mo. App. 96. Alexander v. Merry, 9 Mo. 515; Thornton v. Miskimmon,. 48 Mo. 219; Ware v. Johnson, 55 Mo. 503; Ware v. Johnson, 66 Mo, 667; Hovey v. Wait, 17 Pick. 196; Dollarhide v. Parks, 90 Mo. 185. (4) There is no-proof in this record as to the condition of the judgment and as to the person or persons against whom-the same was rendered. The original deed says it was “against the real estate hereinafter described.”' The amended deed says it was against Albert Smith.. No word of testimony is offered as to which of these-conflicting statements is true. No proof was offered as to the condition of the judgment. It was clearly void and no deed eonld be predicated thereon, because no valid execution could be based thereon. Burr v. Mathers, 51 Mo. App. 470'; Sanders v. Raines, 10' Mo. 770. This is also true of the execution. The old deed recites it as being directed against the “said above described real estate,” while the amended deed says it was against Albert Smith. Which statement, in the absence of corroborating proof, is to be taken as true? Is the original deed, made shortly after the matters recited therein transpired, and while, the memory and recollection of the sheriff was good and fresh, to be taken as true, or is the amended deed’s recitals, made under the circumstances shown, after the lapse of nearly twenty-three years, to be regarded as correct in the absence of any, the most remote, corroboration? The recitals (in either deed under discussion) are not prima facie evidence at common law. 3 Freeman on Executions, 329' (31 Ed.); Ozark L. & B. Co. v. Franks, 156 Mo. 688; Secs. 3216, 3217, 3218, R. S, 1809.
   BROWN, J.

— Action to recover possession of eighty acres of land in Pemiscot county; and also to set aside and cancel a sheriff’s deed fo.r delinquent taxes by which defendants hold said land.

It is admitted by the parties that one Albert Smith, who died in 1896, is the common source of title; and that part of his heirs are the plaintiffs herein. Defendants hold a deed from one of the heirs of said Albert Smith, purporting to convey to them an undivided one-tenth interest in the land in controversy; and said defendants claim the whole title to said property through a sheriff’s sale for delinquent taxes.

On the fifth day of-September, 1882, defendants’ grantor purchased the land in dispute at a sheriff’s sale for taxes, and received from Peter H. Scott, the then sheriff of Pemiscot county, a deed reciting that the purchaser had paid to said sheriff $62.50 for said land. Said deed is regular in form and apparently sufficient to convey the land, except that' it does not recite the name of the person against whom the tax judgment was rendered (the person whose title the sheriff attempted to convey), hut in lieu thereof, simply recites that the judgment of the circuit court was *‘against the real estate hereinafter described.”

Under this sheriff’s deed, defendants entered into the actual possession of the land; whereupon, plaintiffs on May 11,1904, instituted against them this suit, which, as originally filed, was an ordinary action of ejectment.

While this action was pending, defendants applied by petition to the circuit court of Pemiscot county for a writ of mandamus to "compel Peter H. Scott, whose term of office as sheriff had expired, to make and deliver to the defendants a correct and proper deed; in which petition for mandamus, defendants alleged among other things that the original sheriff’s deed made by said Peter IT. Scott was defective and erroneous, in that it recited that' the judgment of the circuit court upon which said deed is based, was rendered against the land in controversy, whereas in truth and fact said judgment was rendered against one Albert Smith, as the owner of said land; that execution issued on said judgment and that said execution, as well as the notice of sale, recited that said judgment was against said Albert Smith, as the owner of said property.

Before said mandamus proceeding was heard by the trial court, said Peter H. Scott, ex-sheriff as aforesaid, voluntarily made, acknowledged in open court and delivered to defendants an amended sheriff’s deed purporting to convey to them the interest of said Albert Smith in the property in dispute.

Upon ascertaining that this amended sheriff’s deed had been made, plaintiffs herein added another count to their petition in this action, alleging that the judgment upon which said amendéd sheriff’s deed is based, was in fact rendered only against the land in controversy, and not against said Albert Smith; that said sheriff Scott sold all of said property (80 acres) in a lump for $60', when either forty thereof would if sold separately have brought the whole amount of the taxes, due thereon, to-wit, the sum of $13.-65; that said amended deed was made nearly twenty-three years after the sale upon which it is based, without notice to the plaintiffs in this action; and is not based upon any order of'court requiring the same to be made, and praying that said amended deed be. cancelled.

Defendants’ answer admitted possession of the real estate, but denied all the other allegations of the petition.

At the trial the following admissions were made:

That in 1882 when the land in dispute was sold, the value thereof did not exceed the taxes and costs of selling same,

• That the courthouse of Pemiscot county and the records therein were destroyed by fire December 2, 1882.

When defendants’ amended sheriff’s deed was offered in evidence, plaintiffs objected to it on the following grounds:

“That the same was made almost twenty-three years- after the alleged tax sale and after the land purports to have been sold for taxes; for the further reason that there was at the time of making said deed, no data, records, papers, files or other records of any kind or sort then in existence upon which said alleged amended deed could be based; third, for the further reason that the land in question was not sold as the land of J. A. Smith, but that the suit and action under which the same were admitted to be sold, was against the real estate itself; fourth, that the sheriff has no right or authority after the lapse of twenty-three years to make corrections in Ms deed or execute new deeds in lieu of void or defective ones. That the deed is irrelevant, immaterial and incompetent to prove any issues involved in this case.”

Which objections were sustained; and defendants saved their exceptions.

Plaintiffs to prove the invalidity of the amended sheriffs ’ deed, introduced Peter' H. Scott, the ex-sheriff, who made same. Scott testified that before selling the land for taxes in 1882 he advertised the same in the Gayoso Democrat, a newspaper, and that the amended sheriff’s deed was made from the notice of sale as published and contained in said paper, the eircMt court records and all papers in the case being then destroyed by fire. Said witness Scott further testified that he had preserved a copy of the newspaper containing his notice of sale of the land in dispute; but said newspaper was not produced at the trial; that he brought the tax suit as collector of the revenue of Pemiscot county, against the owner of the land and the land also, and after obtaining judgment, received an execution from the clerk and sold the land. The memory of said witness seemed hazy as to many points. According to his recollection he received but a small sum from the sale of the land, probably not enough to pay the taxes and costs; and he seemed to be in doubt as to who was the purchaser at the sale.

The plaintiffs also introduced as a witness one D. E. Green, who testified that he bid off the land in controversy at the tax sale, but did not pay anything for same; that he bid off a lot of other lands for Sheriff Scott, and that Scott made him a* present of the land in dispute.

The defendants introduced the two attorneys who prepared the amended deed, and they testified that said deed followed the recitals of the notice of sale, as published in the newspaper; and a comparison of the first sheriff’s deed made by Scott and the amended deed, shows that the only change made was by the insertion in the amended deed of the name Albert Smith, whose interest said deed purports to convey.

The trial court made a special finding that there was not sufficient evidence to prove the tax judgment, through which said defendants claim, was rendered against the owner of the land in controversy; and that the evidence did not authorize the execution and delivery of the amended sheriff’s deed; whereupon the court rendered judgment declaring’, said amended deed void, and awarding the plaintiffs the possession of an undivided nine-tenths of the land.

Defendants ask a reversal on account of the alleged error of the trial court in excluding the amended sheriff’s deed, and in rendering judgment for the plaintiffs.

OPINION.

The affirmance or reversal of the judgment below turns upon the validity or invalidity of the amended sheriff’s deed offered in evidence by the defendants, which was by the trial court adjudged to be void.

After carefully reading and re-reading the record, we are convinced that ex-sheriff Scott was in possession of sufficient data upon which to make the amended sheriff’s deed to defendants, even though at the time of making said deed he did not have a distinct recollection of all the facts recited in said deed. Scott says that in 1881 and 1882 while he was sheriff and ex-officio collector of Pemiscot county, he brought and prosecuted a suit to collect the taxes on the land in dispute,, and many other similar suits for taxes due on other lands; “that he always brought suit against the land as well as the man” (the owner of the land). That at the .request of the county court, he employed two competent lawyers to assist him with the suits, and in making deeds after the sales took place. Prom this evidence, we are warranted in supposing that the tax suit upon which defendants’ title rests was brought and prosecuted to judgment against the owner of the land, to foreclose the State’s lien for taxes; and that the original files and records of the circuit court, if in existence, would show that said suit and judgment were in conformity with the law. ' There is always a presumption in the absence of positive evidence to the contrary, that public officers perform their duty in the manner directed by law. [State ex rel. v. Hawkins, 169 Mo. 615, l. c. 621 State ex rel. v. Andrae, 216 Mo. 617, l. c. 640.] The plaintiffs have not attempted to prove by any one that the pleadings, notices or court records under which the land was sold were irregular in any manner; but rely solely upon the bare recital in the original sheriff’s deed to prove that the judgment was void because not rendered against the owner of the land, but merely against the land itself. That recital in the original sheriff’s deed is overcome by the testimony of the ex-sheriff that he prosecuted the tax suit against the owner of the land as well as the land, and the testimony of attorneys Colins and Brewer to the effect that they saw the sheriff’s notice of sale in the newspaper, and that said notice recited a judgment against Albert Smith as the owner of the land.

We see no valid reason why, when the records and files in a case are all destroyed, that the sheriff may not rely upon his notice of sale in a newspaper which he has kept since the date of the sale, in making an amended deed to correct an error in his original deed,; particularly so, when, as in this case, the evidence shows no circumstance throwing suspicion upon the correctness of the notice of sale as so published. In the case of Dollarhide v. Parks, 92 Mo. 178, this court approved the action of a sheriff in relying in part upon his sale book for information upon which to make an amended sheriff’s deed. The sheriff’s sale book is not a file or'record in a case; and is certainly no better evidence upon which to base an amended sheriff’s deed than the notice .of sale. While the ex-sheriff seemed not to have a clear recollection as to the accuracy of some other recitals in the original sheriff’s deed, he was positive that said deed was. made while he had the execution'and other records and files in the tax suit to refer to; and we think the original sheriff’s deed so made, with the sheriff’s notice of sale, furnished all the data that was necessary upon which to base the amended deed.

Plaintiffs’ main objection to the amended sheriff’s deed is that it was not made under an order of court and was not made timely; that it was invalid because made nearly twenty-three years after the tax sale took place. To the first of these propositions, we will say that an ex-sheriff is not required to obtain an order of court before he makes an amended deed to land which he has sold while in office. In making such amended deed, he proceeds under authority derived from the common law, to complete and make effective acts which he began or attempted to perform while in office. [Ozark Land and Lumber Company v. Franks, 156 Mo. 673, l. c. 689.]

No sufficient reason has been shown in this case why Ex-Sheriff Scott should not have made the amended ■ deed twenty-three years after the sale on which said deed is based. The plaintiffs are heirs of Smith, who owned the land at the time of the tax sale; and they have not shown that they improved the land or expended any money on it in any manner., The law required them to take notice of the tax suit and sale of their father’s ' land, even though no proper deed was made in pursuance of such sale. [Fleckenstein v. Baxter, 114 Mo. 493.] The defendants, as disclosed by the record, have taken possession of the land by authority of the tax sale, and were clearly entitled .to the amended deed.

We have not overlooked the ingenuous and forceful oral argument of plaintiffs’ learned counsel, to the effect that the sheriff’s amended deed should he held invalid because the sale by Sheriff Scott was a. mere sham and that nothing was paid for the land by the purchaser at said sale. It is true one Green, who obtained the original and incorrect sheriff’s deed, testified that he paid nothing whatever for the land; that Sheriff Scott made him a present "of the property; but this somewhat improbable evidence does not overcome the allegation in plaintiffs’ petition that Sheriff Scott sold the land in dispute for $62.50. We do not think defendants were called upon to rebut Green’s evidence, because a party to a suit is relieved of the burden of proving such facts as his adversary in his pleadings admits. [McKenzie v. United Railways Co., 216 Mo. 1, l. c. 19.]

Even if the consideration for the sheriff’s deed had not been admitted by plaintiffs in their petition, the evidence of witness Green is not sufficient to outweigh the evidence of Ex-Sheriff Scótt, to the effect that he did receive a consideration for the land. Scott’s evidence is entitled to more weight than Green’s, because of the presumption of law that he did his duty as sheriff, and did not give away land which it was his duty to sell.

Plaintiffs in their petition prayed to have the sale set aside, because the sheriff received too much money for the land; that he ought not to have sold more than forty acres; but instead, sold the whole tract, and received $60, when only $13,65 taxes were due. This allegation makes us feel inclined to disregard plaintiffs’ demand, made for the first time on appeal, that the deed be set aside because the sheriff received nothing for the property at the sale. Green, who bid off the land at the tax sale, testified that he received a valuable consideration when he sold it to the parties under whom defendants claim title, and there is no complaint that the sheriff failed to account for the amount hid by Green. Under this condition of affairs, we are justified in assuming either that Green is. mistaken about not having paid anything for the land, or that the sheriff himself paid Green’s bid, and accounted for the same; and in either event, the sale should be upheld.

The defendants’ amended sheriff’s deed is sustained by the evidence, and being invulnerable to all attacks contained in the petition of plaintiffs and in their objections to said deed when it was offered in evidence, we must hold that it passed a valid title to defendants. We therefore reverse the judgment of the trial court and direct it to enter a judgment for defendants.

Kenmsh, P. Jand Ferriss, J., concur.


text:
    JOSEPH AVARO, Jr., Appellant, v. UGOLINA AVARO et al.
    Division Two,
    June 20, 1911.
    1. WILL: Attestation: Under Word Witnesses Alone. Tile signatures of the witnesses to a will need not be preceded by any printed or written recital of the fact of attestation. That fact may be shown by evidence aliunde. The will is sufficiently attested if under the single word “Witnesses” two competent persons affixed their names thereto as witnesses, at the request, expressed or implied, of testator, and in his presence.
    2. -: -: Translated to Foreigner Before Execution. A citizen of this country, of Italian birth, who could neither read ' nor write, went with a friend, who understood both the English and Italian languages, to a notary public, who wrote the will in English, and read it to the friend, who translated it to testator, who expressed himself pleased with it, and affixed his signature thereto, and requested the friend to witness it and ask the notary also to witness it, and that request was communicated to the notary, and the two, under the single word “Witnesses,” affixed their names, in his presence. Held, a valid attestation, and a valid will.
    S. -: -: -: Dependent on Testimony of Translator. And though the proof that the two persons.who signed the will under the word “Witnesses,” did so at the request of testator, through an interpreter, depends largely upon the oral testimony of that interpreter, yet that constitutes no objection to the testimony, if the interpreter is shown to be acquainted with both languages and capable of speaking and understanding each.
    Appeal from Lawrence Circuit Court . — Hon. F. C. Johnston, Judge.
    Affirmed.

      W. B. Skinner and W. Cloud for appellant.
    (1) Every will shall be in writing, signed by the testator or by some person by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator. R. S. 1899', sec. 4604. This statute is imperative. Catlett v. Catlett, 55 Mo. 330. (2) It is not the mere physical fact of signing that the two witnesses attest, it is that the instrument signed with the testator’s name is his will — that he signed it as his will — and this of course presupposes primary knowledge of such facts by each of the witnesses. Walton v. Kendrick, 122 Mo. 525; Ortt v. Leonhardt, 102 Mo. App. 43. (3) The testimony of one witness is not sufficient to establish a will. Withinton v. Withinton, 7 Mo. 589’. (4) Where a will is written in a language that the alleged testator cannot read and which he does not understand, nothing can be inferred from his act of signing the same. Mitten-berg v. Mittenberg, 78 Mo. 27. .(5) It is a universal rule of law that where words are spoken in a foreign language, in order to charge or prove them to have been “spoken in the hearing of another” it must affirmatively appear that such “other person” understood such foreign language. State v. Mattheis, 44 Mo. App. 294; Palmer v. Harris, 60 Pa. St. 156. (6) A will attested by a witness who does not understand the language in which it is written is void. Herbert’s Heirs v. Herbert’s Legatees, 11 La. 364. (7) The want of capacity of one of the witnesses to attest what was done cannot be supplied by the testimony of the notary and the other two witnesses that the dispositions of the will were explained by the notary to the witness who was not able to understand them in the language in which they were written. Breaux v. G-allusseaux, 14 La. Ann. 273.

      Geo. Hubbert and D. 8. Mayhew for respondents.
    (1) Between two strangers, speaking and understanding only their several different languages, an interpreter of their words and meanings is taken as their mutual agent for the occasion; and the evidence of his statements between them, in their respective dialects, is not confined to the low level of merely repeated hearsay, but it is original communication between his principals, quite as effective in law as any .other agency, bearer or means of - communication, be it pen, telephone, telegraph, or other sign or signal. It is the communication of a party through his agent. Miller v. Lathrop, 52 N. W. (Minn.) 274; Wright v. Maseras, 56 Barb. (N. T.) 521; Blazinski v. Perkins, 45 N. W. (Wis.) 947. The competence of a witness to testify to his knowledge of the actions and utterances and signs given by the respective parties, does not depend upon his knowledge of both languages used; so, Badger’s testimony of statements of Avaro through his interpreter, Roberts, is first hand evidence. People v. Ah Wee, 48 Cal. 236; Com. v. Vose, 17 L. R. A. 813. The interpreter’s statements while officiating as such for another in his presence are the same as original statements of the person himself, being' through an agent of his own choice. Greenleaf, Ev., sec. 183; Fabrigas y. Mostyn, 20 St. Trials 122; McCormick v. Fuller, 56 Iowa 43; Wise v. Newatney, 42 N. W. 339; Camerliin v. Palmer Co., 10 Allen 539. (2) It is not necessary ■ that proof of a will be by more than one witness. That the attestation was by two may be proved by one or by the signatures and other circumstances. Hughes v. Rader, 183 Mo. 700; Lorts v.' Wash, 175 Mo. 502; Craig v. Craig, 156 Mo. 358; Dickey v. Malechi, 6 Mo. 177; Graham v. O ’Fallon, 4 Mo. 601; Graham v. O’Fallon, 3 Mo. 507. (3) It is not necessary that the witnesses who attest a will shall know the contents of the will, from any expression of the testator, or from reading the will. It is sufficient that the witnesses understand that it is a will that they attest at the testator’s request, Berberet v. Berberet, 131 Mo. 399'; 30 Am. & Eng. Ency. Law,' 596; Roche v. Nason, 93 N. Y. Supp. 565. (4) It is not necessary to a valid will that the testator shall be able to read or to know the contents of the paper signed and attested as a will, otherwise than from the statements or interpretation thereof by others who do know from inspection.. Gardner on Wills, pp. 32, 33; Chaplin on Wills, 387 ; 2 Woerner, Admn. Law (1 Ed.),- sec. 38', p. 60'; Page on Wills, sec. 160; Under-hill on W., sec. 142; Berberet v. Berberet, 131 Mo. 399; The Hoshaner Case, 26 Pa. St. 404; The Dickinson Case, 61 Pa. St. 401; Walters’s Will, 64 Wis. 487.
   STATEMENT.

BOND, C.

— Joseph Avaro, Sr., who was born in Italy, became an immigrant in Lawrence county, Missouri, in 1881, and resided there until his death, in 1905. He was a farmer and became a landowner, but never learned either to read or speak the Ehglish language. He desired to make a will, and, for that purpose, in March, 1899, in company with John Roberts, who had lived in the same town in Italy where Avaro, Sr., was bom, he went to the office of one Badger, a notary public, in Monett, Missouri.

The evidence tends to show that he carried out his purpose to execute his will in the following manner. He dictated its contentsi in Italian to John Roberts, who, in turn, translated what had been dictated to him into English to Badger, and Badger wrote in English what was thus dictated to him by Roberts; that after the will had thus been put into a preliminary form, it was transcribed by Badger so as to fill the blank portions of a printed will, and after being put in this final form, Badger then read it over, section by section, to Roberts, and Roberts, in the same way, translated it into Italian and communicated it to Avaro, Sr.; that after this was done Avaro, Sr., expressed himself satisfied and signed the will and requested Roberts to witness it and also to ask Badger to witness it, which was done by the affixing of the names of Badger and Roberts to said will under the word “witnesses.”

By the terms of the will, the lands and personal estate of the testator were devised to the parties therein named, with some discrimination between his children. One of the children, Joseph Avaro, Jr., instituted a contest. The trial resulted in a judgment for defendants, and plaintiff appealed.

OPINION.

I. The only question raised in apellant’s brief is, whether the will of his father was executed as prescribed by law?

The statute governing the making of wills is, to-wit: “Every will shall be in writing, signed by the testator, or by some person, by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing’ their names to the will in the presence of the testator.” [R. S. 1909, sec. 537.]

In applying this section of the statute, the following propositions have been established in this State:

1st. The requirements of the statute are mandatory. [Catlett v. Catlett, 55 Mo. 330.]

2d. There must be proof of testamentary capacity. [R. S. 1909, sec. 535.]

3d. There must be a request, express or implied, by the testator that his will be attested, and, in pursuance of such request, the signatures of two witnesses must be affixed to the will in his presence. [Hughes v. Rader, 183 Mo. 702; Hach v. Rollins, 158 Mo. 190.]

4th. The signatures of the attesting witnesses need not be preceded by any written or printed recital of the fact of attestation, which fact may be shown by evidence aliunde. [Berberet v. Berberet, 131 Mo. 399.]

The testimony of one witness to that effect is sufficient to show that the signatures of two witnesses were placed on" the will to attest it. Attestation may also be shown by proof of two signatures, coupled with evidence showing that they were written to attest the will by persons of those names. [Lorts v. Wash, 175 Mo. l. c. 503; Craig v. Craig, 156 Mo. 361; Graham v. O'Fallon, 4 Mo. 601.]

The record shows that the evidence given by the proponents of the will (defendants) tended to prove that the testator was of sound mind, cognizant of the natural objects of his bounty and of the property intended to be devised; that he signed the will with full knowledge of its effects as to the persons and property therein referred to; and that he intended in so doing to make and publish his will.

As to its attestation, the .will shows the names of Badger and Roberts written under the word “Witnesses ; ’ ’ and the oral testimony tended to prove that each of these persons, at the request of the testator, through his interpreter, signed the instrument in his. presence and in the presence of each other, and in order to attest it as his will. That the proof of these facts rested largely upon the testimony of the interpreter, Roberts, constitutes no objection to the competency of the evidence thus adduced. Eox it is a general* rule of law, that a sworn interpreter is a competent witness to .testify as to communications made to him in one language and translated by him into another, where he is shown to be acquainted with both languages and capable of speaking and understanding each of them. [1 Greenleaf on Evidence, (16 Ed.), sec. 183; Com. v. Vose, 157 Mass. 393.]

Since the record in this case shows there was substantial evidence tending to prove the due and proper execution of the will in contest according to the statutory requirements and well-settled principles of law, it follows that the trial court did not err in submitting the ease to the jury under proper instructions.

The verdict and judgment. sustaining the will are affirmed.

Roy, G., concurs.

PER CURIAM:

— The foregoing report of the commissioners is hereby adopted as the opinion of the court.


author: FERRISS, J.

text:
    A. T. SWISHER v. CHICAGO & ALTON RAILWAY COMPANY, Appellant.
    Division Two,
    June 20, 1911.
    1. PASSAGE WAY UNDER RAILROAD: Reserved by Widow’s Deed: Acquiescence. A reservation in a deed conveying a right of way over land in which the grantor had only a widow’s right, and in which she reserved a space ten feet wide under the track for a passageway for wagons and overflow waters, is binding tipon her husband’s heirs and the company, if acquiesced in by all the parties for twenty-five years.

      2. -: Nuisance: Abatement: Equity. And where the agreement of the railroad company was to maintain a culvert ten feet wide as a passageway for wagons and overflow waters for the use and benefit of the owners of the land, and the company, in order to strengthen the walls of the culvert, re-enforced them by an addition of concrete so as to reduce the width of the culvert to six feet ten inches, whereby its use is made less convenient and beneficial to the landowner, and his injury is continuous and is not susceptible of being measured in damages, he has no adequate remedy at law, and a court of equity will abate the nuisance by requiring the company to construct and maintain such a culvert as the agreement called for.
    S. -: -: -: -: Amount of Damages. Where the nuisance results from a deliberate trespass upon the property rights of another, the question of the amount of damages is not important in determining whether the facts justify a resort to equity to abate a nuisance.
    4. -: -- — : -: -: Economy in Construction. Nor is it any reason to refuse to abate the nuisance arising from an obstruction of the easement that it will save cost to the trespasser to construct the narrower culvert.
    5. -: -: -: -: Prescription or Covenant. It is immaterial whether plaintiffs rights to have -the larger culvert rests upon covenant or prescription.
    Appeal from Saline Circuit Court. — Eon. Samuel Davis, Judge.
    Aefirmed.
    ° T. E. Harvey, and Scarritt, Scarritt <3 Jones for appellant.
    Specific performance may not be decreed herein. Under the pleadings and the evidence plaintiff has no standing in a court of equity to ask such court to require -defendant to construct and maintain a culvert such as is described in plaintiff’s petition, for several reasons. In the first place, it is certainly an elementary proposition that before a court of equity will undertake to enforce tbe specific performance of any contract on bebalf of any complainant the court will be sure that such complainant has a contract to be enforced. In the case at bar plaintiff has not shown that he has any contract with defendant or with any other railroad company. The only pretense made by plaintiff as to the existence of any contract regarding this culvert is the quitclaim deed from plaintiff’s mother, Elizabeth Swisher, to the Kansas City, St. Louis & Chicago Railroad Company, by which deed said Elizabeth Swisher quitclaimed her interest in the land in question to that railroad. Plaintiff acquired no interest in the land in question from his mother, said Elizabeth Swisher, and by the deed in question said Elizabeth Swisher did not pretend to convey to the railroad company any other interest in this land than her own. It appears that the interest of Elizabeth Swisher was only her right of dower, and such interest of course absolutely terminated with her death, which occurred in 1885. It is well settled that the interposition of a court of equity cannot be invoked by a mere volunteer to enforce a contract* to which he was neither party nor privy. Beardsley Co. v. Foster, 36 N. Y. 561; Morris v. Lewis, 33 Ala. 53; Lyfo-rd v. Railroad, 92 Cal. 93; Ashcroft v. Railroad, 126 Mass. 196. In the second place, it' appears both from the pleadings and the evidence that the covenants expressed in said deed have been fully performed. In the deed the railroad company was not required to maintain this culvert for any particular length of time. As the deed pretends to convey only the estate and interest of said Elizabeth Swisher, and as it appears that her interest terminated absolutely ■with her death in the year 1885, it cannot be that the railroad company was obligated by this deed to maintain the culvert longer than the existence of the estate and interest conveyed by the deed. Ashcroft v. Railroad, 126 Mass. 196'. In the next place, if plaintiff were a party to the contract claimed to exist under the quitclaim deed from Elizabeth Swisher to the Kansas City, St. Louis & Chicago Railroad Company no adequate reason has been presented to put in motion, the extraordinary powers of a court of equity. Pomeroy v. Fullerton, 131 Mo. 581; Johnson v. Steffens, 54 111. App. 193; Burke v. Railroad, 291 Mo. App. 370; Powers y. Railroad, 71 Mo. App. 540; Harrelson y. Railroad, 151 Mo. 482; Baker v. McDaniel, 178 Mo. 468.

      Duggins S Duggins and Frank E. Rigney for respondent.
    (1) The only possible relief to grant plaintiff was of an equitable nature. Biddle v. Ramsey, 52 Mo. 153; Byers v. "Weeks, 105' Mo. App. 72; Powell v. Railroad, 215 Mo. 339. The plaintiff could not have compensation in damages, for the injuries are continuous, and effect a passway through an underground crossing. An ejectment suit could not avail as the sheriff could not take possession of the land without damaging the walls of the culvert. Barrington v. Ryan, 88 Mo. App. 85. (2) Counsel for the railroad confound the relief sought, that is, the abatement of a nuisance, with one for specific performance of a contract. The deed in question contains the ordinary covenants of “grant, bargain and sell,” and the further covenant that the railroad would build the culvert ten feet wide, ‘ ‘ suitable for a wagon to pass through and for stock to go to and from the spring for water.” These are such covenants as run with the land, and the deed from Mrs.' Swisher is admissible in evidence to show how- the railroad went into possession. The deed contains the statutory words, “.grant, bargain and sell,” and therefore contains the express covenants of title in fee and for further assurances which run with the land. Mag-wire v. Riggin, 44 Mo. 514; Dixon v. Desire, 23 Mo. 151;' R. S. 1899, sec. 907; Allen v. Kennedy, 91 Mo. 324; Jones, Real Estate, sec. 952; Loan Co. v. Fuller, 114 Mo. App. 633. Even though the grantor had no title. Loan Co. v. Fuller, 114 Mo. App. 638. Such covenants are muniments of title, and run with the land; and covenants which run with the land operate as estoppels. Boyce'v. Longworth, 11 Ohio 235; Harman on Estoppel, sec. 672; Foote v. Clark, 102 Mo. 406'. Privity of contract is not essential to sustain an action of equity in this case. Stillwell v. Railroad, 39 Mo. App. 221; Miller v. Billingsley, 41 Ind. 4891. The plaintiff was fully cognizant of the contents of the deed. He witnessed it and appended his affidavit that he saw the grantor sign it, and he heard her declare the same to be her act and deed. He afterwards became the absolute owner of the full title to the land, and then ratified, approved and accepted the title and used and enjoyed the easement and passway for nineteen years, with full knowledge and agreement of the facts. He thereby made himself a party to the agreement. Drakely v. Gregg, 75 U. S. 242. The benefits of the covenants inured to him. The acceptance of a deed, whether poll or inter partes, containing a covenant on the part of the grantee, is equivalent to an agreement on his part to perform the same. 11 Cyc. 1045, 1051. (3) Easements appurtenant inhere in the land, concern the premises, and are necessary to the enjoyment thereof. Such easements are incapable of existence, separate and apart from the particular messuage or land to which they are annexed, there being nothing for them to act upon. They are in the nature of covenants running with the land, attach to the land, to which they are appurtenant, and pass by a deed of conveyance. 14 Cyc. 1140, 1141, 1155, 1165; Hamlin v. Railroad, 160' Mass. 459:' The deed in this suit is a grant or reservation of a right of way by a prescribed underground crossing, and imparts notice to the defendant of plaintiff’s claims; and the right of way is a vested right in plaintiff; and being continued for the prescribed period it becomes an easement by prescription. Power v. Dean, 112 Mo. App. 288; Anthony v. Building Co., 188 Mo. 704; Anderson’s Law Die., p. 391; Roanoke Co. v. Railroad, 108 Mo.' 50; Powell v. Railroad, 215 Mo. 339; Spurlock v. Dornan, 182 Mo. 242. (4) In an action for a private nuisance it is not necessary to allege or prove any special damage. Smith v. McConathy, 11 Mo. 518; Baker v. McDaniel, 178 Mo. 447; Burgenstock v. Drainage Dist., 163 Mo. 198; Smith v. Sedalia, 182 Mo. 1; Gray v. Graff, 8 Mo. App. 334. Anything constructed on a person’s premises, which of itself, or by its intended use, directly injures a neighbor in the personal use and enjoyment of his property, is a nuisance. Webb’s P'ollock on Torts, p. 484; Cooley on Torts, p. 565; Powell v. Brick Co., 104 Mo. App. 713; Webb’s Pollock on Torts, p. 491, 494 ; 3 Blackstone’s Com., 216; Paddock v. Somes, 102 Mo. 226.
   FERRISS, J.

— Suit to abate a nuisance, with judgment below in favor of plaintiff.

In January, 1878, Elizabeth Swisher, widow of Henry Swisher and mother of his five sons, one of whom is plaintiff, executed a deed of conveyance of a right of way, one hundred feet wide, to the Kansas City, St. Louis and Chicago Railroad Company, as follows:

“Know all men by these presents, that I, Elizabeth Swisher, of the county of Saline and State of Missouri, for and in consideration of the sum of one dollar in hand paid by the Kansas City, St. Louis & Chicago Railroad Company, the receipt whereof .is hereby acknowledged, and the covenant of said company herein made to build and operate its railroad over the lands hereinafter described by the 31st day of December, 1879, and put in a culvert ten feet wide under railroad track at the spring situated in the north end of the northwest quarter of the northwest quarter of section twenty suitable for a wagon to pass through and stock go to and from the spring for water, also a wagon crossing over the road at some suitable place near the center of the northeast of the northwest of section 20, and fence the road within six months after the cars shall be run to Marshall, have bargained and sold and do by these presents grant, alien, relinquish, sell and convey unto the said Kansas City, St. Louis & Chicago Railroad Company the right of way for the construction, operation, maintenance and use of the said Kansas City, St. Louis & Chicago Railroad Company, over and through the following described land owned by the said Elizabeth Swisher and her heirs in said county of Saline and State of Missouri, more particularly described as follows, to-wit: The north half of the northwest quarter of section 20, township 51, range 20'. The said right of way to have the extent of one hundred feet (that is to say fifty feet on each side of the center line of said railroad) in width, over and through said lands and lots.
“To have and to hold the same unto the said Kansas City, St. Louis & Chicago Railroad Company, their successors and assigns, as long rs the same shall be required and used for railroad purposes, and no longer, and in case of non-completion as aforesaid, to revert.
“In witness whereof I.have hereunto set my hand and seal this twenty-fifth day of January, A. D., one thousand eight hundred and seventy-eight.”

The railroad company took possession of the right of way, and during the year 1878 constructed the culvert called for in the deed, ten feet wide, and it so remained until 1904, when the defendant company, in order to strengthen the walls of the culvert, reinforced them by the addition of concrete so as to reduce the width of the culvert to six feet and ten inches.

The land over which the right of way extended was owned by ITenry Swisher, husband of the said Elizabeth Swisher, at the time of his death, which occurred in 1875. It seems that Elizabeth had only a widow’s right in the land, the ownership being in the heirs of Henry Swisher, the five sons mentioned above. After the death of Elizabeth Swisher, the sons, in 1885, by partition deed conveyed the forty acres upon which this culvert was built to plaintiff. The situation then was such that the bulk of the forty acres lay south of the railroad, with five or sis acres north of the road; the culvert communicating between the two pieces and affording a passage for a small stream which proceeded from a spring located on the land north of the road. The grade crossing provided for in the deed from Mrs. Swisher is not upon plaintiff’s land, so that the only passage from one part of his land to the.other is through this culvert.

While the work of reinforcing the walls of the culvert was in progress plaintiff served upon defendant a written protest and demand for full compliance with the covenant, for a ten-foot clearance in the culvert. Imemediately thereafter plaintiff filed this suit upon the following petition:

“That the plaintiff is the legal owner and is now in possession of the northwest quarter of the northwest quarter of section twenty, township fifty-one, range twenty, in Saline county, Missouri, and has owned and been in possession of the said tract of land since the year 1885, and that upon said tract is situated the spring, and culvert hereinafter mentioned.
“That since the year 1885-, the defendant and those under whom it claims had maintained its railroad track upon a right of way over and.across the said land of the plaintiff, and had constructed its culvert ten feet wide under its railroad track, at the spring situated in the north end of the said northwest quarter of the northwest quarter of section 20', aforesaid, in all things complying with the deed conveying said right of way, which is dated the 25th day of January, 1878, which is recorded in Book 26, at page 235, in the recorder’s office of Saline county, Missouri, and wherein Elizabeth Swisher, the mother of plaintiff, is the grantor, and the Kansas City, St. Lonis and Chicago Railroad Company, under whom defendant claims, was the grantee, in which deed is reserved the right to the owners of said land to use such culvert and the open space between the walls of the same, and beneath the tracks of said railroad, as a passage way for wagons to pass through, and for stock to and from such spring for water; and such culvert was so constructed that it was sufficient to carry off the waters of a creek or branch which flowed through it.
“And that since such year 1885', the plaintiff has used.said culvert and the right of way and easement through the same for a passway for wagons from the portion of said land on one side of the railroad to the portion on the other, and as a passway for stock to go through to such spring of water, and such right of way and easement was of great value to the plaintiff.
‘■‘That the defendant did maintain said culvert for the use of plaintiff and in strict compliance with the terms of said deed from Elizabeth Swisher, as aforesaid, until about the 10th day of August, 1904, when the defendant and its agents and employees did tear out said culvert and did proceed to build a new culvert six feet in width in its place.
“That said new culvert is not built in compliance with the covenants and agreements under which- the defendant holds said right of way, and is wholly insufficient for the uses so reserved to the owners of said tract of land, but the said defendant has entered upon the land of the plaintiff, not theretofore in its possession, and has built a new culvert which is so narrow that it is not suitable for a wagon to pass through. That the creek or branch which runs through said culvert carries water from the spring aforesaid, and also surface waters from rains and melting snows, from a large area, are drained off through the same; and that said new culvert is so narrow and is so faulty constructed that it is wholly insufficient to carry off the waters which naturally drain into said branch and run off through the culvert ¿foresaid, and the water backs upon plaintiff’s land and overflows and renders useless a large portion of the same, and overflows and renders useless the spring aforesaid, thereby greatly damaging the plaintiff. And said culvert is so narrow that it is not suitable as a passageway for wagons, and plaintiff is thereby greatly inconvenienced and damaged. That, as at present constructed, the said culvert constitutes a nuisance upon the land of the plaintiff, and, so long as the same is allowed to be maintained there, the plaintiff will suffer great loss from’ the overflow of his land and spring, and great inconvenience and loss from not being able to use said cul- ’ vert as a passageway for wagons.
“That the said nuisance complained of herein is-continuous in its nature. That the extent of the injury and damage from the maintenance of the same cannot, now be ascertained, and that the plaintiff has no adequate remedy at law for redress, and that unless the said nuisance be abated the plaintiff will suffer irreparable injury. •
“That after the said defendant tore out the original culvert, and after it had begun the construction of said new culvert, the plaintiff gave notice to defendant in writing that such new culvert was so narrow as to be insufficient to carry off the water draining-through the same, and that he would hold the defendant to a full compliance with the covenants and agreements mentioned in said deed from Elizabeth Swisher-aforesaid.
“The premises considered, the plaintiff prays the court to enter its judgment requiring the defendant toábate the nuisance it has created by the erection of such culvert on the plaintiff’s land, and to construct and. maintain a proper culvert thereon as it has heretofore agreed to do, for costs of suit and all proper relief.”

Defendant answered by a general denial, an allegation that plaintiff had a complete remedy at law, and •charging a defect of parties.

The evidence shows that the defendant is in possession of the railroad, under lease from the grantee In the deed from Elizabeth Swisher, and caused the work to be done of which plaintiff complains. The evidence further shows that the culvert has been used to some extent as a passageway for wagons, and that its use for such purpose has been impaired by the narrowing of the passage. The culvert has not been used for wagon passage for four or five years, but it is desirable to have it available for such' use. It does not appear that the change complained of has materially Interfered with' the flow of water or the passing of stock through the culvert.

This being a suit to abate a nuisance, the defendant contends that there is no substantial damage shown in view of the fact that the use of the passage for wagons had been practically abandoned for several years.

Up to August, 1904, when the culvert was obstructed by defendant, the owners of the land had been in the uninterrupted ownership of this right of a ten-foot passage through this culvert for twenty-five years. The railway company accepted the right of way burdened with the covenant to construct a ten-foot culvert. The defendant, lessee, who has assumed the rights and obligations of the original covenanter, cannot, and as we understand it, does not claim against the covenant. As a matter of fact, the railroad company never acquired this underground crossing. It was reserved In the deed under which the company took possession. It was, in point of fact, excluded from«th.e right of way by a fence which the company so constructed as to cut off the right of way on each side of the culvert, leaving the passage across the entire right of way as a part of the farm. This situation, acquiesced in by all parties, bound the heirs, including plaintiff, and the company also, to the terms of the deed made by Mrs. Swisher; so that the present effect is as if she had full title when she executed her deed to the company. The plaintiff claims that the added concrete walls constitute an obstruction upon his property and a nuisance. He asks the court to abate this nuisance and, incidentally,, compel the company to comply with its covenant. This is not, however, a suit for specific performance. The sole question is whether the facts justify a resort to equity to abate a nuisance.

Plaintiff being entitled to a right of way, ten feet wide, through this culvert, “anything erected therein which for practical purposes made its use less convenient and beneficial than it was before, was an obstruction which wrongfully interfered with the privilege to which he was entitled. ... In such -circumstances the injured party has no adequate remedy at law,, and injunction is the proper remedy.” [Cook v. Ferbert, 145 Mo. l. c. 464.] The damages in this case may be slight, but the value of the use is to some extent diminished, and the injury is continuous and not susceptible of being measured in damages. We do not regard the question of the amount of damages important where the nuisance results from a deliberate trespass upon the property rights of another. Whether plaintiff’s rights rest upon covenant or prescription is immaterial. In either case, the right is his to use a ten-foot passage, and as remarked by the chancellor in Hulme v. Shreve, 4 N. J. Eq. 116, “It behooves any one who would change the manner of use to show most conclusively that the change could not injure him.” Goode, J., in St. Louis Safe Deposit Bank v. Kennett Estate, 101 Mo. App. l. c. 392, says: “Easements are property; servitudes are burdens upon property; and' an owner is entitled,to complete dominion over and enjoyment of his property, except so far as he voluntarily relinquishes these rights. And it is immaterial whether the easement or servitude was created by private or public grant, or by prescription. ’ ’

The defendant appeals to the doctrine laid down in Powell v. Railroad, 215 Mo. l. c. 350, that the court must regard the welfare and rights of both the farmer and the company, and above all the safety of the traveling public. There is nothing to show that the welfare of the traveling public is in any way involved in the question in this case. There is no attempt to show that the walls of this, culvert could not have been reconstructed so as to secure any needed strength, without narrowing the passage. Indeed it is practically conceded that the only reason for obstructing the passage was to save cost to the road. There is no showing of what the cost would be to rebuild and strengthen the walls. We are not prepared to hold that motives of economy alone will justify the defendant’s taking possession of or obstructing the property of plaintiff. Much light on- the questions involved here may be found in the lucid opinion of Goode, J., adopted by this court in Powell v. Railroad, supra.

Some of the findings of the circuit court could well have been omitted or modified, particularly those upon the degree of injury, which go rather beyond the evidence. We think circuit courts too often accept without careful scrutiny drafts of decrees prepared by •counsel for the successful party. However, as the judgment does not depend upon the matters referred to, and is for the right party, it is hereby affirmed.

Kennish, P. J., and Brown, J., concur.


author: KENNISH, P. J.

text:
    EDWARD W. MOORE v. C. F. HELVY, Appellant.
    Division Two,
    June 20, 1911.
    1. EJECTMENT: Adverse Possession: Wrong Lot. Adverse possession for ten successive years of lot one does, not establish title by limitations to the east half of lot two.
    2. -: -: -: Succession: Taking Possession. Even if the evidence shows adverse possession for ten years of lot one, and defendant buys lot one from the possessor and enters into possession of the east half of lot two less than two years prior to the filing of the suit in ejectment therefor, he fails to show that he succeeded to the rights of the possessor of the bast half of lot two, or any privity of interest between himself and his grantor, even though in fact his grantor had then been in possession of the east half of lot two for ten years. Under a deed conveying to him lot one, with no showing of any mistake in the description, the grantee therein cannot tack his own possession of the east half of lot two to his grantor’s possession of the east half of lot two.
    Appeal from Reynolds Circuit Court. — Ho». Joseph J. Williams, Judge.
    Affirmed.

      8. L. Clark for appellant.
    (1) Under tbe undisputed facts in evidence, appellant and those under -whom he claimed the lands in controversy, had been in the actual, visible, continuous and adverse possession of the lands for more than ten years before the institution of the suit, and it was error to refuse appellant’s declaration of law. Warfield v. Lindell, 38 Mo. 561; Scruggs v. Scruggs, 41 Mo. 242; Nelson v. Brodhack, 44 Mo. 596; Watt v. Donnell, 80 Mo. 195; Farrar v. Heinrich, 86 Mo. 521; Ekey v. Inge, 87 Mo. 493; Scanned v. Soda Co., 161 Mo. 606; Kirton v. Bull, 168 Mo. 622. (2) The possession of appellant was a fact necessary to be alleged and proved upon the .trial before respondent would be entitled to recover. The possession of appellant was admitted by tbe answer and the proof showed that he was using the land in the same manner that those under whom he claimed had been using it since the year 1891, and that that use continued up until 1903, the time of the bringing of the action. Respondent’s action was, therefore, barred by the ten-year Statute of Limitations. Respondent will not now be heard to say that the possession was not had of the land sued for, since, if there was no possession, there was no cause of action, if there was no possession, then the action was barred. Sell v. McAnaw, 138 Mo. 267; Clarkson v. Stanchfield, 57 Mo. 574. And this possession need not be taken in good faith, if there was an intent to claim and possess the land. Bladley v. West, 60 Mo. 33; Wilkerson v, Eilexs, 114 Mo. 245. Nor, need the possession be based upon recorded instruments. Land Co. v. Hays, 105 Mo. 143.

      James F. Green for respondent.
    (1) Possession, in order to avail as a defense, must be of the land in controversy and must have been continuous for the statutory period. Hunter v. Wetherington, 205 Mo. 284; Lumber Co. v. Rogers, 145 Mo. 445; Harrison v. Black elin, 23 Mo. 117; Tayon v. Ladew 33 Mo. 205'. (2) There is no evidence that the possession of defendant was hostile to the legal title. Mere possession does not create title by limitation, unless open, notorious and adverse under claim of ownership or color of title. Crowl v. Crowl, 195 Mo. 347'; Sell v. McAnaw, 158 Mo. 471; Adkins v. Tomlinson, 121 Mo. 487; Stevenson v. Black, 168 Mo. 549; Moore v. Harris, 91 Mo. 616.
   KENNISH, P. J.

—This appeal is prosecuted from the circuit court of Reynolds county in an action of ejectment for the possession of the- east half of lot number two of the northeast quarter of section one, township tweny-nine, range two east, in said1 county. From a judgment in favor of the plaintiff the defendant appealed to this court.

The only question presented by appellant for review is the'correctness of the finding and judgment of the trial court upon the evidence adduced in support of the defendant’s claim of title by adverse possession. The plaintiff was the record owner of the land and was entitled to recover the possession thereof unless the defendant had obtained title by adverse possession.

The defendant toot possession of the land in question on February 23', 1903-, under a deed from Hiram Coleman, and remained in possession until the filing of this suit in 1904. On March 4th, 1899, At-t Miller and Ann Miller, his wife, by quitclaim deed, conveyed lot one, of the northeast quarter of said section to Hiram Coleman and T. B. Miner. On May 14, 1900, Miner and wife made, executed and delivered to Coleman a quitclaim deed purporting to convey to him the east half of lot number tiuo of the northeast quarter of said section. From March 4, 1899, to May 14, 1900, Miner was in possession of the east half of lot two; from May 14th, 1900', until February 23rd, 1908', Coleman was in possession.

The defendant claimed that Miller was in adverse possession of the east half of lot two from 1891 or 1892 until the conveyance was made by him to Miner and Coleman in 1899. In order, therefore, to support defendant’s claim of title by adverse possession it was necessary to show that the defendant and Coleman, Miner and Miller, under whom defendant claimed, had continuously held adverse possession of said east half of lot two fo.r ten years prior to the institution of the suit. For that reason the correctness of the ruling of the trial court depends upon two questions, namely: First, Did the evidence show that Miller had held adverse possession of the east half of lot two for the period claimed by the defendant? Second, If Miller did hold such possession during that period, did the evidence show that the defendant had succeeded to his rights and his possession, so that the possession of Miller, Miner, Coleman and the defendant would all operate in favor of the defendant and vest the title to the land in him by adverse possession?

Hiram Coleman, who was called as a witness by the defendant, testified, concerning the alleged possession of Miller, substantially as follows: I have been acquainted with the land Cyrus Helvy owns for about twenty-five years. Was acquainted with the land in 1892. Att Miller was then in possession of it. He sold the land to me and I took a deed for it. He was in possession of the land for some time before I bought it, but I can’t say exactly how long. He put an orchard on the land and built a house on it. That house is supposed to be on _this forty that is named in this suit. It was built to be on this forty. I don’t know that I can describe the forty in dispute. This house is on the east half of lot one of the northeast quarter of section one, township twenty-nine.

John Charton, another witness for the defendant, testified substantially as follows: I am acquainted with the land in controversy and knew the land about 1892 and 1893'. Att Miller was in possession of it about that time. I think he was in possession in 1891. .In the fall of 1893: he put a house on it and I helped him build it. That house is supposed to be on the land in controversy. That is where it was intended to be put. After he built the house Miller was in possession until he sold it to Tom Miner. I am well acquainted with the land. Miner sold it to Mr. Coleman. Miner was in possession of it at that time. Coleman took possession, made one crop on it and then moved off. He sold it to Mr. Helvy. I don’t know where this forty is. according to law. I didn’t see the lines run when the land was surveyed by the county surveyor.

The defendant also introduced in evidence a deed from Miller and wife to Coleman and Miner, conveying lot one of the northeast quarter of said section.

The foregoing was all the evidence offered by the defendant as to Miller’s alleged possession of the land in controversy or as to defendant’s succession to the possession and the rights of Miller.

In our opinion the court did not err in holding that the defendant had failed to show title by adverse possession. The testimony of Coleman shows that the improvements made by Miller were upon a different tract of land, namely, the east half of lot one. Char-ton’s testimony shows that the land concerning which he testified as having been in Miller’s possession was the land on which Miller built the house, and that was-shown by the undisputed testimony of- Coleman to he the east half of lot one. Another significant fact hearing upon Miller’s alleged possession of the east half of lot two is that Miller, in the deed to Coleman and Miner, conveyed lot one, upon which he had huilt the house, and not the east half of lot two that is in controversy in this case. As this deed and the testimony of the two witnesses- above referred to was all the evidence offered hy the defendant to show the alleged adverse possession of Miller, we do not- see how the trial court could have found otherwise than that the defendant had failed to show adverse possession by Miller of thé east half of lot two during the period of time in question.

We also- think the trial court properly held that the evidence failed to show that defendant had succeeded to Miller’s alleged possession, so far as it concerned the east half of lot two. The only evidence offered on this point was the deed made by Miller, in which he conveyed lot one to Coleman and Miner.

In order for the defendant to avail himself of Miller’s possession, by tacking the possession of himself, Coleman and Miner to that of Miller, it was not necessary to prove that they had received possession from Miller under a deed or other written instrument. [Menkens v. Blumenthal, 27 Mo. 198; Crispen v. Hannavan, 50 Mo. 536.] But,when the only evidence offered, in any way tending to show defendant’s succession. to the prior possession of Miller, was a deed from Miller, purporting to convey a different tract of land, with no evidence that there was any mistake in the description in that deed, and with no explanation as to how the defendant claimed to be in privity with Miller and to succeed to his possession under that deed, it cannot be said that the trial court erred in finding that the defendant had failed to show that he was in privity with. Miller as to the alleged‘possession of the latter.

In the case of Adkins v. Tomlinson, 121 Mo. 487, both of the questions involved in this appeal were presented to this court for adjudication, namely, whether the evidence showed that one under whom ■defendant claimed had been in possession of the land in dispute, and whether the evidence showed that the defendant had succeeded to the alleged prior possession of the one under whom he claimed. This court in passing upon the question of the defendant’s alleged succession to the possession of another, l. c. 494, said; “Not only this, the evidence does not show that the defendant ever succeeded to such prior possession. Under such circumstances the possession of defendant could not be tacked to the possession of previous holders with which he had no connection. ‘There must be privity of grant or descent, or some judicial or other proceedings which shall connect the possessions, so that the latter shall apparently hold by right of the former.’ [Crispen v. Hannavan, 50 Mo. 536.] ”

For the foregoing reasons we are of the opinion that under the evidence adduced at the trial the judgment was clearly for the right party and should be ■affirmed. It is so ordered.

Ferriss and Brown, JJ., concur.