text:
    CHARLES FENSKY, Appellant, v. MARYLAND CASUALTY COMPANY.
    Division One,
    March 2, 1915.
    1. SLANDER: By Agent: Liability of Corporation. A corporation is liable for a slander uttered by its agent while acting within the scope of his employment and in the actual performance of the duties thereof touching the matter in question, though the slander was not uttered with the knowledge of the corporation or with its approval and though it did not ratify the act of the agent. A corporation is liable to the same extent as a natural principal for the malicious wrongs of its officers or agents, if committed in the course of a transaction Which is within the scope of their authority.
    2. -: Office of Innuendo. The office of an innuendo in a petition for slander is not to enlarge the words actually used, but to state in what sense or meaning the words were used. If they are not actionable per se, the pleader must state by way of colloquium such extrinsic facts as will show their slanderous meaning.
    3. -: -: Stating Cause of Action. A petition showing that plaintiff, as an attorney, had been employed by one May by a written contract to prosecute a claim for damages against an Ice Company on account of personal injuries sus- . tained by him while in its employ; that said contract was signed by May, and that by reason thereof plaintiff had a property right in said cause of action to the extent of his statutory ' attorney’s lien; that the defendant Insurance Company was vitally interested in said action, because it had indemnified said Ice Company against claims for damages; that defendant had knowledge of plaintiff’s contract with May; that the “agent of defendant, while acting within the scope of his employment and in the actual performance of the duties thereof touching the matter in question,” in the presence of plaintiff and May and another of defendant’s agents falsely said: “The contract you (meaning plaintiff) claim to have with this man (meaning May) was not signed hy him and he (meaning May) is here to tell you so. Furthermore, the day on which this contract is alleged to have been signed, I saw May and his hand was so badly hurt and bandaged that he could not have signed his name if he wanted to;” that said agent then and' there charged and imputed and intended to charge and impute to plaintiff that “he had in his possession and was asserting a right under a forged instrument,” states such extrinsic facts as to show the words were used in an actionable sense. The words used are not actionable per se, but the incidental facts pleaded, if they do not charge plaintiff with having forged May’s name to the contract, at least show that plaintiff was claiming valuable rights under a contract knowing it to have been forged, and in either case the language used was actionable.
    4. -: -: Liability of Corporation: Grade of Agent. The law makes no distinction between the classes of agents of a corporation, whether high or-low. It is not the law that only an officer or manager can make the corporation liable for slander. If the agent “while acting within the scope of his employment and in the actual performance of the duties thereof touching the matter in question” uttered the slanderous words, the corporation is liable. And the facts in this case clearly show that the agent was so acting. [Disapproving the seeming restriction in Payton v. Clothing Co., 136 Mo. App. 577.3
    Appeal from St. Louis City Circuit Court. — Hon. C. C. Allen, Judge.
    Reversed and remanded.

      Charles Fensky pro se; Henry E. Haas of counsel.
    (1) To accuse one with, the commission of a felony, either directly or by innuendo, constitutes actionable slander. Sec. 4817, R. S. 1909; 18 Am. & Eng. Ency. Law, 868; 25 Cyc. 271; "Webb’s Pollock on Torts, p. 289. (2) Under the statutes of Missouri it is a felony for a person to have in his possession any forged instrument of writing, knowing the same to be forged, by which, he may endeavor to cheat, injure or defraud another, or to collect money on account of the same. Secs. 4651, 4654, 4666, R. S. 1909; 25 Oyc. 292; 18 Am. & Eng. Ency. Law, 882. (3) To charge and accuse an attorney at law with corrupt, dishoñest or improper practice, in the conduct of his profession, tending to prejudice him in his calling or to impeach his integrity as an attorney, constitutes actionable slander. 18 Am. & Eng. Ency. Law, 960; 25 Cyc. 333; Webb’s Pollock on Torts, p. 289; Johnson v. St. Louis; Dispatch Co., 2 Mo. App. 565; 22 Am. & Eng. Ann. Cases, 375; Montgomery v. Printing Co., 229 Pa. St. 165; G-arr v. Selden, 6 Barb. 416. (4) A corporation is liable for a slander uttered by its agent while acting within the scope of his- employment and in the actual performance of his duties thereof touching the matter in question, though the slander was not uttered with the knowledge of the corporation or with its approval and though it did not ratify the act of the agent. Thompson on Corporations (2 Ed.), sec. 5441; 1 Clark & Marshall on Corporations, pp. 627, 629; 17 Am. & Eng. Annotated Cases, 620; Hypes v. Railroad, 82 S. C. 315; Rivers v. Railroad, 90 Miss. 196; Payton v. Clothing Co., 136 Mo. App. 577;. Minter v. Bradstreet Co., 174 Mo. 444; Johnson v. Dispatch Co., 2 Mo. App. 565; Johnson v. Dispatch Co., 65 Mo. 539; Boogher v. Life Assn., 75 Mo. 324; State ex inf. v. Ins. Co., 152 Mo. 38. (5) And whether the agent of the corporation was acting within the scope of his employment and in the actual performance of his duties, is a question of fact to be submitted to the jury. Payton v. Clothing Co., 136 Mo. App. 577; Thompson on Trials, sec. 1370.

      Holland, Rutledge é LasHy for respondent.
    (1) The utterance referred to in appellant’s-petition is not slanderous. The words contained-therein being ordinary English words free from ambiguity, they may not be enlarged upon or added to by the allegations contained in the innuendo. Cook v. Pub. Co., 241 Mo. 326; Walsh v. Pub. Co., 250 Mo. 141; Powell v. Crawford, 107 Mo. 595; Winsor v. Ottofy, 140 Mo. App. 563; Church v. Bridgman, 6 Mo. 190; Nanlty v. Bulletin Co., 206 Pa. St. 128; Townshend on Slander and Libel (4 Ed.), par. 336; Newell on Slander and Libel (2 Ed.), p. 619. (2) Even if it be assumed that the utterance in question contained all the charges mentioned in the innuendo, that is, even if it were actually slanderous, the respondent corporation would not be liable therefor. Under some authorities a corporation is never liable for slander; under others it may be liable, but only where it is shown that an official or manager of the corporation made the utterance. Townshend on Slander and Libel (4 Ed.), par. 265; Payton v. Clothing Co., 136 Mo. App. 577. In this case there is no charge that the utterance in question was made by an official or manager of the corporation.
   GRAVES, P. J.

This is an action for slander. In the trial court the plaintiff was cast upon a general demurrer, charging that his petition failed to state facts sufficient to constitute a cause of action. That is the sole question here. The petition reads:

“Plaintiff states that he is and was at all times herein mentioned a regularly licensed attorney at law and has been practicing his profession in the city of St. Louis, Missouri, for the past fifteen years:

“That the defendant, Maryland Casualty Company, is a foreign corporation doing business in the State of Missouri and is engaged, among other things, in carrying employers ’ liability insurance.

“Plaintiff further-states that on the 8th day of May, 1911, he was employed by one Eugene May, colored, to prosecute his claim for damages against the Polar Wave Ice & Fuel Company, a corporation, doing business in tbe city of St. Louis, on account of personal injuries sustained by the said Eugene May while in tbe employ of said Polar "Wave Ice & Fuel Company on or about tbe 29th day of April, 1911, at its. plant at or near Cook and Cbanning avenues in said city of St. Louis; tbat plaintiff’s contract of employment was in writing duly signed by tbe said Eugene May and tbat by reason thereof plaintiff bad a property right in said cause of action to tbe extent of bis statutory lien; which said contract is herewith filed and marked ‘Exhibit A.’

“Plaintiff further states tbat tbe said defendant, Maryland Casualty Company, was assurer for said Polar Wave Ice & Fuel Company and bad contracted and agreed to bold tbe said Polar Wave Ice & Fuel Company harmless from any and all liability by reason of damage suits, and was by reason of said contract of assurance vitally interested in tbe outcome of tbe claim of said Eugene May.

“Plaintiff further states tbat be duly notified tbe Polar Wave Ice & Fuel Company of bis employment in writing by said Eugene May and of bis statutory lien on tbe cause of action, and tbat tbe said Polar-Wave Ice & Fuel Company in turn .notified tbe said Maryland Casualty Company.

“Plaintiff further states tbat on or about tbe 19th day of May, 1911, two agents of tbe defendant corporation, whose names, to tbe best knowledg-e and belief of plaintiff, are Fred Kraemer and — ITulbert,. having in their- company tbe said Eugene May, called on plaintiff at bis office in- tbe Times Building in tbe city of St. Louis, Missouri, and said Fred Kraemer, agent of defendant, wbile acting within tbe scope of bis employment and in tbe actual performance of tbe duties thereof touching tbe matter in question, in tbe presence and bearing of this plaintiff and of divers other persons, falsely, wantonly, and maliciously spoke of and concerning the-plaintiff the following false, malicious, and defamatory-words, to-wit: ‘The contract you (meaning plaintiff) claim to have with this man (meaning May) was not signed by him and he (meaning May) is here to tell you so. Furthermore, the day on which this contract is .alleged to have been signed, I saw May and his hand was so badly hurt and bandaged that he could not have signed his name if he wanted to,’ then and there intending to charge and impute, and then and there charging and imputing, to plaintiff that he had in his possession and was asserting a right under a forged instrument, knowing the same to be forged, which said charge, if true, constitutes a felony under the laws-of the State of Missouri and would subject plaintiff to degrading punishment.

“Plaintiff further states that at the time of uttering said false, malicious, and defamatory words as aforesaid, and with a view of intensifying said slander, the said Fred Kraemer, agent of said defendant, while acting within the scope of his employment and in the actual performance of the duties assigned to him by this defendant procured the said Eugene May, under promise of pecuniary reward, to then and there deny his signature in the presence and hearing of plaintiff and divers other persons; that the false and slanderous language so spoken of and concerning the plaintiff, together with the denial of said Eugene May, so procured as aforesaid, was understood and believed by the persons in whose presence and hearing the same was uttered to mean that plaintiff had in his possession and was asserting a right under a forged contract, and that he, the plaintiff, then and there knew the same to be forged.

“Plaintiff further says that the false and slanderous words so spoken of and concerning the plaintiff by defendant’s said agent while acting in the scope of his employment, greatly humiliated plaintiff and has greatly prejudiced him in his good name, fame and reputation and has greatly injured him in his profession and business as an attorney at law, to his damage in the sum of fifty thousand dollars, in actual damages in the sum of twenty-five thousand dollars and in exemplary or punitive damages in the sum of twenty-five thousand dollars.

“Wherefore, the premises considered, plaintiff prays judgment against defendant for twenty-five thousand dollars actual damages and for twenty-five thousand dollars punitive damages and for his costs in this behalf sustained. ’ ’

I. The demurrer being a general one we are not’ advised upon what theory the trial court held this petition bad. In the brief of appellant ^ *S Sa^ ^ caark took ^he view that thére was no agency in slander, and a corporation was not liable for the slanderous statements of its agent. We admit that a rule thus broad is announced by Townshend on Slander and Libel (4 Ed.), sec. 265, whereat it is said:

“As a corporation can act only by or through its officers or agents (sec. 261) and as there can be no agency to slander (sec. 57), it follows' that a corporation cannot be guilty of slander; it has not the capacity for committing that wrong. If an officer or an agent of a corporation is guilty of slander, he is personally liable, and no liability results to the corporation. ”

This rulé has long since been exploded, and rightfully so. The more recent and better rule is well worded in 5 Thompson on Corporations (2 Ed.), sec. 5441, whereat it is said:

“The general rule mahes the corporation liable for a slander uttered by its agent while acting within the scope of his employment and in the actual performance of the duties thereof touching the matter in question, though the slander was not uttered with the knowledge of the corporation or with its approval and though it did not ratify the act of the agent.”

To like effect is 1 Clark and Marshall on Private Corporations, page 627:

“It has been said that a corporation cannot be liable for a slander or oral defamation by its officers or agents, as ‘there can be no agency to slander;’ and the opinion has also been expressed that a corporation, because of its impersonal nature, cannot commit torts involving the element of malice, since, to support an action for such a tort, ‘it must be shown that the defendant was actuated by a motive in his mind, and a corporation has no mind. ’ This reasoning, however, is unsound. A corporation, it is true, has no mind, and cannot itself entertain malice, but its officers and agents may, and their mental attitude, including their malice, may, like their consent to a cor-tract or their physical acts, be imputed to the corporation. It is well settled, therefore, for this reason, that a corporation may, to the same extent as a natural principal, be liable for the malicious wrongs of its officers or agents, if committed in the course of a transaction which is within the scope of their authority. ’ ’

And on page 628 the same authority says: “Thus, it has been held that a corporation may, to the same extent as an individual, be liable in an action for libel, or, it seems, for slander, or in an action for malicious criminal prosecution or malicious false arrest or imprisonment, for malicious prosecution of a civil action, attachment, or other proceeding, for malicious interference with the business of another, for making a false return to a writ, as a writ of mandamus, for example, and for conspiracy, all of which offenses involve a mental element. ’ ’

Further in a note on page 629, the same authority adds: “While it is true that a corporation cannot itself speak and therefore cannot itself slander, neither can, a corporation itself make false representations, and yet a corporation may be liable for the false representations of i'ts agent. For the same reason, it- may be liable for a slander by its agents.”

In the recent case of Hypes v. Southern Ry. Co., 82 S. C. l. c. 317, Mr. Justice Jones, says:

“It is established that corporations as well as natural persons are liable for the wilful tort of an agent acting within the general scope of his employment, without previous express authority or subsequent ratification. [Rucker v. Smoke, 37 S. C. 377; Williams v. Tolbert, 76 S. C. 217; Schumpert v. Railway, 65 S. C. 332; Gardner v. Railway, 65 S. C. 342; Riser v. Railway, 67 S. C. 419; Dagnall v. Railway, 69 S. C. 115; Fields v. Cotton Mills, 77 S. C. 549, 11 L. R. A. (N. S.) 822.]

“The old doctrine that a corporation, having no mind, cannot be liable for acts of agents involving malice has been completely exploded in modern jurisprudence. While a corporation is nonpersonal in its formal legal entity, it represents natural persons and must necessarily perform its duties through natural persons as agents, hence must spring the correlative responsibilityfor the acts of its agents within the scope of their employment.

‘ ‘ The liability of a corporation for malicious libel published by its agent in the course of his employment is generally recognized. [Philadelphia, W. & B. R. R. Co. v. Quigley, 62 U. S. 202; Johnson v. St. Louis Dispatch Co., 27 Am. Rep. (Mo.) 293; Bacon v. Michigan, etc. R. R. Co., 54 Am. Rep. (Mich.) 372; Maynard v. Firemen’s Fund Ins. Co., 91 Am. Dec. (Cal.) 672; Fogg v. Boston, etc. R. R. Co., 12 Am. St. (Mass.) 583; Missouri Pacific Ry. v. Richmond, 15 Am. St. (Tex.) 794; 10 Cyc. 1215; 18 Am. & Eng. Ency. Law, 1058.]

“We do not regard the distinction between written and unwritten slander to be of sufficient importance to warrant the application of a different rule. The written slander is not always or necessarily more public than the spoken, and if it may indicate more deliberation and hence warrant more easily the inference of malice, the difference is mei'ely in degree, not in kind. ’ ’

So too, in the case of Rivers v. Railroad, 90 Miss. l. c. 211, Whitfield, C. J., says:

“The doctrine has long been exploded that a corporation is not liable for slander because, as it was ridiculously expressed, 'there could be ‘no agency to slander.’ The true doctrine is that set forth in Clark & Marshall on Corporations, vol. 1, pp. 627-629. ’ ’

The learned jurist then quotes from the text as we have quoted supra. . .

In our own State this modern rule as to slander is fully recognized. [Payton v. Clothing Co., 136 Mo. App. 577.]

There can be no sound reason for saying that a corporation may be liable for libel (a doctrine long recognized) and yet not liable for slander — unwritten libel or defamation of character. Under the modern rule the corporate shell will not shield the corporation from the ill effects of the slanderous tongue of its agent, if at the time the agent was transacting for the corporation the business of the corporation, and the slander was uttered in the course of such business— and in connection therewith. As an individual I cannot go to another individual to adjust an account with him, and in the course of so doing publicly denounce him as a thief. Nor should a corporation, through its agents, be able to thus denounce a citizen, and escape liability. This phase of the case, i. e., the character of the agent, we discuss later. It is sufficient to say at this juncture that the corporation is not relieved from liability upon the theory that there “is no agency to slander.’1’ If this was the theory nisi, and there were no other questions in the case, the judgment cannot he sustained.

II. The first point in defendant’s brief is stated in this language:

“The utterance referred to in appellant’s petition is not slanderous. The words contained therein being ordinary English words free from ambiguity they may not be enlarged upon or added to by the allegations contained in the innuendo

All this may be granted, and yet the action of the trial court is not necessarily right. It is not the purpose of an imiuendo in a petition for slander to enlarge the words actually used, hut the office of that part of a slander petition is- to state in what sense or meaning the language was used.

If the words used are not actionable per se, the pleader by way of colloquium must state such extrinsic facts, as will show the slanderous meaning of the words used. In the early case of Curry v. Collins, 37 Mo. l. c. 328, we said:

“Since the statute (R. S. 1855, p. 1240, sec. 55), there need be no colloquium of extrinsic facts for the purpose of showing the application of the defamatory matter to the plaintiff, more than the words were spoken of and concerning him. [Stieber v. Wensel, 19 Mo. 513.] And when the slanderous words are actionable in themselves, it is not necessary to make any prefatory averments as to the circumstances to which they refer; hut if the words do not, per se, convey the meaning which the plaintiff would assign to them, the petition must contain a statement of the extrinsic matter necessary to show that they are actionable, and what is necessary to be stated must be proved.”

We have set out the petition in full, and we may admit that the language alleged to have been spoken by the agent Kraemer, if'taken as standing alone does not charge an indictable offense, and thus would not be actionable per se. In such case it devolves upon the pleader by way of colloquium to state such extrinsic facts as will show that the words were used in an actionable sense. Does this petition state such extrinsic facts? We think so. It is rather inartificially drawn, but we believe there are such extrinsic facts pleaded as to show the words to have ben used in an actionable sense. The plaintiff’s petition, as to these extrinsic facts, show (1) that plaintiff was asserting rights under a contract purporting to have been signed by May, (2) that this contract evidenced a lien which plaintiff had upon a cause of action which May had against the lee Company, (3) that May in fact had a claimed cause of action against the Ice Company, (4) that defendant was vitally interested in such claimed cause of action by May, because it had indemnified by insurance the said Ice Company against such claims; (5) that defendant had knowledge of plaintiff’s said contract; (6) that these agents of defendant in the course of their business for the defendant called upon plaintiff with reference to the claim of May and this contract of plaintiff with May; (7) that whilst looking after the alleged liability of defendant upon the very claim, and the claim of plaintiff under the contract with May, the language mentioned was used. The foregoing is a fair statement of the facts pleaded, or clearly inferable, in plaintiff’s petition. The question then is, do these incidental facts show the language to have been used in an actionable sense? We think so. It is clear that if they do not show that they charge plaintiff with having forged May’s name to the contract, they do at least show that plaintiff was claiming valuable rights under a contract, knowing it to have been forged. In either sense the language as thus used was actionable, and the petition would state a good cause of action. So that we say that whilst this petition is quite inartificially drawn, yet the. facts pleaded and the clear inference to be drawn from the pleaded facts, show the words charged to have been spoken were in fact spoken in the sense attributed to them in the innuendo. So viewing the petition it states a good cause of action, if Kraemer’s relation to the company was such that the company would be liable for his slanderous remarks. That question we take next.

III. The next contention of the defendant is that the petition only charges that Kraemer was the agent of defendant, and that the defendant is not for the slanderous language of a mere agent, and for that reason the petition is bad. The contention of the defendant seems to be that only an officer or manager of a corporation can make the corporation liable for slander. There is language in Payton v. Clothing Co., 136 Mo. App. 577, which lends support to this view. The doctrine is unsound.

The petition in this case charges that Kraemer was the agent of the corporation, it charges that what he said and did was said and done “ while acting within the scope of his employment and in the actual performance of the duties thereof touching the matter in question.” The extrinsic facts, by way of colloquium, and the reasonable inference from those facts, show that this allegation of being in the line of duty is true. The facts show that this agent was looking after this claim against the defendant, and it of necessity required the agent to investigate the contract of plaintiff which gave plaintiff an interest in the claim. Whatever was done and said was done and said in the very performance of the agent’s duty to his master. In effect, when this agent approached plaintiff, the plaintiff not only asserted that there was a valid-claim against the agent’s principal, but further that by reason of the contract, he, plaintiff, had a half interest in that claim. To this the agent in effect said, yes, yo.u claim under that contract, but that contract is a forgery and you know it, and we have the man right here with us to prove that it is a forgery. If ever words' of slander were uttered by an agent, to use the language of Judge Thompson, quoted supra, “while acting within the scope of his employment and in the actual performance of. the duties thereof touching the matter in question, ’ ’ this is one of the cases.

Under our paragraph one we have cited the au-. thorities which hold that the corporation may be liable for the slanderous language of the agent. These authorities do not confine the word agent to an officer or general manager, as defendant would have us do and as. the Kansas City Court of Appeals seemingly has done in the Payton case, supra. On the contrary, the vast weight of modern authorities places the liability upon the ground that the language was used by an authorized agent in the line of his employment and in connection with the very thing he was looking after for his corporation. The law draws no distinction between the classes of agents as to whether high or low in authority. The things to be looked to are, (1) was the person an authorized agent of the corporation? and (2) if so, was he acting within the scope of his employment, when he used the slanderous language? and (3) was such language used in the actual performance of his duties, and touching the matter in question? If so, then the corporation is liable, whether such authorized agent be high or low in class (so he was( duly authorized and was acting within the scope of his authority), and is liable, to again quote from Judge Thompson, “though the slander was not uttered with the knowledge of the corporation or with its approval, and though it did not ratify the act of the agent. ’ ’

This doctrine is right in principle. An individual could not have gone to the plaintiff and charged him with knowingly exacting money under a forged contract and escápe liability, if such charge was false. Nor should a corporation which sends out an agent who would do the same thing he permitted to escape liability.

The doctrine of “no agency to slander” and “the corporation can’t slander because it can’t talk” having been fully exploded, it is liable in slander just the same as for any other tort. It is not liable for any tort which is not committed in the course of the agent’s employment.

We think a liberal construction of this petition (which construction we are entitled to give it upon a mere general demurrer) shows that a cause of action was stated and the trial court erred in sustaining the demurrer thereto. The judgment ñisi is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    JOSEPH H. HAMBEL et al., Appellants, v. HORACE LOWRY.
    Division One,
    March 2, 1915.
    1. QUIETING TITLE: Affidavit to Petition: Upon Information and. Belief. Where facts are stated positively in a petition to quiet title, an affidavit in which affiants swear that “the facts stated in the foregoing petition are true according to the best knowledge, information and belief of these affiants,” is sufficient.
    2. -: -: Venue: No Scilicet. Although the affidavit to the petition to quiet title does not contain any scilicet, yet if the seal and written words following it show that the oath was administered by a named notary public, of a named county and State, it sufficiently shows where the affidavit was made, for the presumption is that the oath was administered within the notary’s jurisdiction.
    3. -: Defendants: Person and His Unknown Heirs. Under the statute, prior to its amendment in 1909, a person and his unknown heirs could be joined as defendants in the same suit to quiet title.

      4. -: -: As Both Heirs and Devisees. A petition to quiet title is not defective because it alleges that if a certain person be dead then the title and estate claimed by him in said land is now claimed by “his heirs and devisees.” The effect is to include all persons claiming as heirs and all persons claiming as devisees.
    5. -: Unknown Heirs: Sufficient Allegation. A petition stating that Hambel if living claims some interest or title in the land, and if he be dead “then the title, interest or estate claimed by him in said real estate is claimed by his heirs and devisees, if any he left surviving him; that the names of such heirs and devisees, if any there be, are to this plaintiff unknown, and for that reason cannot be inserted herein,” is not insufficient on the theory that it does not state there are, or that plaintiff verily believes there are, persons interested in the subject-matter whose names cannot be stated because they are unknown to him. The allegations did not mislead.
    6. -: Order of Publication: Description of Interest, Etc. An order of publication reciting that “plaintiff further alleges in its petition, under oath, that it verily believes that there are persons interested in the subject-matter of the petition, whose names it cannot insert therein, because they are unknown to it; that the interest of unknown persons is derived by devise and descent from the said Charles Hambel, deceased, so far as the knowledge of plaintiff extends as to such interest and the manner in which the same is derived,” contains a sufficient description of the character, extent and derivation of the interest of the unknown defendant. It contains all the description that was within plaintiff’s knowledge, and that is enough.
    ■ 7. -: -: -: Derivation and Character. The statute prescribes no set form of words for describing the interest of unknown heirs, or its derivation, or plaintiff’s lack of knowledge of it; but its purpose is that both the petition and publication shall be so drawn as to convey the facts concerning the character of the interest to the defendant, so far as plaintiff’s knowledge extends; and when that is done, in both petition and publication, the description is sufficient. If the publication states that plaintiff does not know the character of defendant’s interest or claim and all that he does know of it is that it is derived by devise or descent from a certain person, an omission of a formal statement that plaintiff does not describe defendants’ interest or claim more fully because the nature and extent of such interest is unknown to him, is not a substantial omission.
    8. -: -: -: Collateral Attack. If the order of publication in the suit to quiet title, directly or by necessary inference, includes all requisite facts, and the only objection that can he urged against it is informalities in the manner and order of stating those requisite facts, it is sufficient as against collateral attack — for instance, in a subsequent suit by the “unknown” defendants to quiet the title.
    9. -: -: -: In Language of Petition. It is not necessary that the publication contain all the allegations of the petition concerning the interests of the unknown defendants. If it is the same in meaning, and advises defendants of the identical facts the petition alleges, though it does not do so in the petition’s identical words, it sufficiently describes their interest and its derivation, if the petition does.
    Appeal from Carter Circuit Court. — Hon. W. N. Evans, Judge.
    Affirmed.

      Orchard & Cunningham for appellants.
    (1) The petition introduced in evidence is insufficient to give the court or the clerk in vacation jurisdiction to issue an order of publication as to unknown interested parties; in other words, there is no sufficient allegation under the statute as to unknown interested parties. R. S. 1899, sec. 580. The petition in this case does not allege or state that there are unknown interested parties, setting out their interest and how derived; in fact plaintiff states it has no knowledge of whether there are unknown interested parties or not, nor what their interests are; it states if William Smith be dead, plaintiff has no knowledge sufficient to form a belief and if he be dead, then the title, interest or estate claimed by him in said real estate is derived by his heirs and devisees, if any he left surviving him; that the names of such heirs and devisees, if any there be, are to this plaintiff unknown and for that reason cannot be inserted herein; that such heirs and devisees, if any there be, derive their interest in said real estate through devise or descent from said William Smith, deceased, etc. The same statement is made as to each of the other defendants; this allegation we contend is not sufficient to confer jurisdiction. State ex rel. v. Slatey, 76 Mo. 158; Quigley v. Bank, 80 Mo. 296; Land & Mining Co. v. Land & Cattle Co., 187 Mo. 437; Davis v. Montgomery, 205 Mo. 271,1. e. 283. (2) The affidavit to the petition is not sufficient and gave the clerk no jnrisdic- ■ tion to issue an order of publication. There is nothing to show where, this affidavit was made. It simply says John E. Burchard and David D. Forbes being duly sworn, etc. Before whom they were sworn and by what officer and in what county and State, is not mentioned. The mere fact the notary stated subscribed and sworn to, etc., and signed his name as notary public Eamsey county, Minnesota, is no aid to the affidavit that should have been made and attached to the petition. The affiants do not swear that the contents of the petition are true, but say to the best knowledge, information and belief of the affiants, which is no affidavit. (3) The order of publication is void and did not give the court jurisdiction to enter judgment in said cause, and the judgment is void. The order of publication does not recite all the allegations of the petition in relation to the interest of the unknown parties, which was required by the statutes in force at that time (E. S. 1899, sec. 580), and this is mandatory, and unless done the court has no jurisdiction to proceed further. State ex rel. v. Staley, 76 Mo. 160; Quigley v. Bank, 80 Mo. 296; Davis v. Montgomery, 205 Mo. 282. (4) The suit is against certain defendants dead or alive, and then an attempt is made to sue their unknown heirs, which was not permissible under the law at that time, and the law at the time the suit was filed did not authorize a suit against a person if alive or if dead, against his unknown heirs or devisees, and the Legislature so construed said statute by the Act of 1909, p. 338, now Sec. 1776, R. S, 1909.

      Garry H. Yount and Louis F. Dinning for respondent.
    (1) The petition introduced in evidence is sufficient to give the court or clerk in vacation jurisdiction to issue an order of publication as to unknown interested parties. Secs. 1776, 1828, R. S. 1909; Fleming v. Tatum, 232 Mo. 678. (2) Sec. 1776, R. S. 1909, has not changed Sec. 580, R. S. 1899, so far as the same applies to the facts in this case. (3) The point made by appellant, that the affidavit does not show where it is made nor before whom made is not well taken. Avery v. Grood, lié Mo. 296; Mercantile Co. v. Burrell, 66 Mo. App. 117. (4) The petition correctly describes the interest of the defendant to the land in controversy. Huff v. Land & Imp. Co., 157 Mo. 65.
   BLAIR, J.

This is a suit, under section 2535, Revised Statutes 1909, to quiet title. The petition is in usual form. The answer denies that plaintiffs own the the land, averring that defendant owns it, and praying that the court try and ascertain the title to the land (the southeast quarter of section 29, township 27, range 3 east) and decree title in defendant. Judgment went for defendant, and plaintiffs appealed.

Plaintiffs are the heirs at law of Charles Hambel, who died in 1874. Defendant claims under the Southwest Land & Orchard Company, and it is admitted he has acquired all title that company acquired or could claim under a judgment in its favor in a suit to quiet title brought by it in 1907 against Charles Hambel and the unknown heirs of Charles Hambel, deceased, and others. Plaintiffs contend that judgment is a nullity. Several reasons are urged.

That portion of the petition in that case which is relevant to questions raised on this appeal is as follows:

“Plaintiff further states that the defendant Charles Hambel, if living, claims some title, interest or estate in and to said real estate the exact nature and extent of which claim is to this plaintiff unknown and for that reason cannot be set out herein, except that such claim is adverse to the interest and estate of plaintiff in said real estate; but, whether the said Charles Hambel be living or dead, this plaintiff has no knowledge or information sufficient to form a belief; and if he be dead, then the title, interest or estate claimed by him in said real estate, is claimed by his heirs and devisees, if any he left surviving him; that the names of such heirs and devisees, if any there be, are to this plaintiff unknown and for that reason cannot be inserted herein; that such heirs and devisees, if any there be, derive their interest in said real estate through devise or descent from the said Charles Hambel, deceased.”

To that petition was appended an affidavit which concludes as follows: “That the facts stated in the foregoing petition are true according to the best knowledge, information and belief of these affiants.” Below the signature of affiants appears the following: ‘ ‘ Subscribed and sworn to before me this 5th day of February, 1907. My commission expires January 26, 1911.” The officer administering the oath signs himself as S. J. Burchard, notary public, Ramsey county, Minnesota, and affixes his seal, which is that of a notary public in and for Ramsey county, Minnesota.

That portion of the order of publication in the mentioned case which is pertinent to the issues here is as follows:

“Plaintiff further alleges in its petition, under oath, that it verily believes that there are persons interested in the subject-matter of the petition, whose names it cannot insert therein, because they are unknown to it; that the interest of unknown persons is derived by devise and descent from the said . . . Charles Hambel, . . . deceased; so far as the knowledge of plaintiff extends as to snch interest and the manner in which the same is derived. ’ ’

The remainder of the order is in the usual form.

Appellants contend that for several reasons the judgment in The Southwest Land & Orchard Company case is a nullity and that, as a consequence, defendant’s title, depending upon that judgment, is worthless.

I. It is insisted the affidavit to the petition in the former suit is .insufficient because (1) it is made upon information and belief, and (2) it does not show where it was made.

(a) In a tax suit a collector’s affidavit that he . “has good reason to believe and does believe” that the defendant was a nonresident has been held a substantial compliance with the statute requiring an affidavit of non-residence as a condition precedent to the making of an order of publication. [Allen v. Ray, 96 Mo. l. c. 545.] In this connection both reason and authority support the view that in case facts are stated positively and affiant swears “he verily believes them to he true” or that “they are true to the best of his information and belief, ’ ’ this is no more than is implied in case the oath is not so qualified. “The general rule is that an oath taken before a competent officer merely verifies the truth of the facts stated, according to the best knowledge, information and belief of affiant.” It is understood to he so even in case of an affirmation positive in form. [Pratt v. Stevens, 94 N. Y. 387; Leigh v. Green, 64 Neb. l. c. 536; Colton v. Rupert, 60 Mich. l. c. 326.]

The attack upon the judgment being collateral, it would seem unnecessary to discuss this question save for some supposed confusion in the authorities arising from an occasional failure to distinguish between making oath to facts upon best information and belief and ■ merely swearing' to a belief.

(b) The contention that the venue was not stated in' connection with the affidavit is untenable in fact as well as law. True, no formal “State of Minnesota, County of Eamsey, ss,” appears, but the seal and written words following the officer’s signature show that the oath was administered by a named notary public of Eamsey county, Minnesota, and the presumption is that the oath was administered .within his jurisdiction. This was sufficient. [Avery v. Good, 114 Mo. l. c. 296.]

II. The next contention is that under the law as it was when the former suit was instituted (1907) a person and his unknown heirs could not be joined in the same suit. In the case of Fleming v. Tatum, 232 Mo. l. c. 686 et seq., it was held that a petition and order of publication describing defendants as “David Fleming, if living, or, if dead, his unknown heirs or devisees” was sufficient. The reasons given in that case meet the objections in this in this connection, and the fact that the Legislature in 1909 amended the statute (Sec. 1776, R. S. 1909) so as to incorporate (among other, things) in detail and in specific terms the meaning it had already been construed to have in this respect is no ground for concluding that it formerly had no such meaning. Legislative construction is frequently of value, but we do not deem this principle applicable in the circumstances of this case.

III. The petition in the former case alleged that the unknown persons claimed as “heirs and devisees” and this is assigned as' a fatal defect, it being insisted that one cannot claim both as heir and devisee. So far as concerns this contention it is clear that the omission of either the word ‘heir” or “devisee” would have left the petition good as against the class defined by the word which remained. The effect of using both terms was simply to include as defendants all persons claiming’ as heirs and all claiming as devisees. There might have been both heirs and devisees. The same person might have claimed in both capacities. If there were both heirs and devisees, they were both included; and if there was only one class, that class was included, and the other term was simply surplusage.

IV. The petition in the former case was sufficient as against collateral attack, under the decision in Fleming v. Tatum, 232 Mo. l. c. 689. While the petition attacked in this case logically goes no further than the petition discussed in that, yet it does contain a specific statement that the nature and extent of Charles Hambel’s claim is unknown to plain.tiff and cannot, for that reason, be set out, except that it is adverse to plaintiff. It then proceeds to state that the interests of the unknown defendants is derived by devise and descent from Charles Hambel. The criticism of the petition, that it does not state that there are, or plaintiff verily believes there are, persons interested in the subject-matter of the petition whose names cannot be stated because they are unknown to plaintiff, is answered by the language of the petition. The contention is that the petition neither states that there are nor that plaintiff verily believes there are such persons.

The allegation is that if he, Charles Hambel, is dead, 44 then the title, interest or estate claimed by him in said real estate is claimed by his heirs and devisees, if any he left surviving him,” etc. The words 44if any he left surviving him” furnish the basis for this contention.

We think the substantial effect of the entire allegation is that plaintiff charges that the heirs and devisees of Charles Hambel, as such, claim whatever interest in the estate Charles Hambel had or claimed, provided Hambel is dead. An analogous question was passed upon in Fleming v. Tatum, supra, l. c. 686 et seq. This court there held that the uncertainty in the petition as to whether David Fleming was dead or living (and, therefore, whether he had surviving heirs) could not have misled either Fleming, if living, or his heirs, if he was dead, and said: “We hold that the name and description of the defendants, ‘David Fleming, if living, or, if dead, his unknown heirs or devisees,’ as contained in the petition and in the order of publication, are sufficient.”

There seems to be no good reason for departing from this holding. Elven a positive allegation that there are unknown persons interested in the subject-matter of the petition and that they are the heirs of another person necessarily implies the qualification that such unknown persons claim as heirs and devisees only in case they survived the testator or ancestor. As indicated in the case cited, a statement of this qualification could not have misled.

Other objections to the petition are made but are fully covered in what is said in a - succeeding paragraph concerning the sufficiency of the order of publication as published.

V. The order of publication is attacked upon the ground that there is no sufficient description of the character, extent or derivation of the interest of the unknown defendants. The pertinent portion of the publication is set out above. Its quoted recitals actually mean, when given their natural significance, “that the interest of the unknown persons, and how derived, so far as plaintiff’s knowledge extends, is an interest as heirs and devisees of Charles Hambel.” it is equivalent to a statement that plaintiff is describing both the interest and its derivation as far as he can and his knowledge goes, and that the description given is given to the extent of Ms knowledge, both as to the interest and the manner in which it was derived.

In Fleming v. Tatum, 232 Mo. l. c. 689, the allegations in a petition were attacked upon the same grounds upon which the order of publication is attacked here. The petition considered in that case, so far as it described the “interests of unknown persons and how derived,” was as follows:

“And that the interest of such persons and how derived, so far as the knowledge of affiant extends, are truly described as follows, viz.: That if said David Fleming be dead, his unknown heirs or devisees claim, or might claim, an interest or right in said land by descent, inheritance, devise or operation of law. ’ ’

This Division of this court, all concurring, unhesitatingly held that this was a sufficient description of the interest and derivation of the interest of the unknown persons.

It is not perceived that there is any substantial difference between the allegations of the petition con-' sidered in that case and the recitals of the publication in this. The purpose of the publication was to notify the defendants of the suit, and the requirement of the statute is that the petition and the publication following it shall describe the interest and the derivation of the interest of the unknown defendants so far as plaintiff’s knowledge extends. It is indisputable that a suit to quiet title can be maintained against a defendant, the nature, extent and derivation of whose interest or claim is unknown to plaintiff and that this is as possible in suits in wMch service is had by publication as when it is had by summons.

It is also true that the statute prescribes no set form of words for describing such an interest or its derivation or plaintiff’s lack of knowledge of it. The purpose of the statute is that the petition and publication shall be so drawn as to convey the facts, so far as plaintiff’s knowledge extends, concerning’ the character of snch interest and its derivation, to the defendant sought to be affected. The forms of expression are not vital. In the publication here being considered, that portion assailed, when given its natural meaning, states, in substance, that plaintiff does not know the character of defendant’s interest or claim and all that he does know of its derivation is that it is derived by devise and descent, etc. The omission of a formal statement that plaintiff did not describe defendant’s interest more fully because the nature and extent of such interest was unknown to it, was not a substantial omission, since the statement of lack of further knowledge is the real substance of that formula, and that statement is made, as we understand the publication. The statement that all plaintiff knew of the character and derivation of defendants’ interest was that it was derived by devise and descent from named persons is equivalent to an avowal of lack of other knowledge. The publication showing, therefore, that plaintiff stated all he knew concerning the character, nature, extent and derivation of the unknown defendants’ interest, it would be remarkable if the publication should be held a nullity because it did not contain a formal statement that plaintiff’s failure to set forth a fuller description of the interests was due to lack of further knowledge, which-he, in effect, stated he did not have. This would be to require that the publication should have, in effect, set forth that the reason plaintiff did not more fully state things which he had stated he did not know was that he did not know them.

It is true that strict compliance with the statute is necessary, as held in the cases cited in the briefs which accompany this opinion, but it is not true, on collateral attack, that where there is a compliance, in that the facts appear, the mere failure to follow the statutory order and method of statement is a fatal defect, if a defect at all.

• We hold that at least on collateral attack, snch as in this case, informalities in the manner and order, only, of stating the facts requisite under the statute . in such notice and the petition in the case do not render such notice a nullity and avoid the judgment.

Also, we hold that in case, such a notice, directly or by necessary inference, includes all requisite facts, it is sufficient as against collateral attack.^

There is ample support for this conclusion in the decisions: Jasper Co. v. Wadlow, 82 Mo. l. c. 179; Charley v. Kelley, 120 Mo. l. c. 142; Brawley v. Ranney, 67 Mo. l. c. 283; Cruzen v. Stephens, 123 Mo. l. c. 345; Brickell v. Farrell, 82 Fed. l. c. 223; Smith v. Pomeroy, 2 Dill. l. c. 420; Quarl v. Abbett, 102 Ind. l. c. 240; Ballew v. Young, 24 Okla. l. c. 190; Norris v. Robbins, 83 Kan. l. c. 342. These cases are cited in support of the position above stated, and not as indicating that we indorse, in full, the doctrine stated in some of those from, other jurisdictions.

The decision in Land & Mining Co. v. Land & Cattle Co., 187 Mo. l. c. 438, is not in conflict with the above conclusion. The opinion was written by Yallxant, J., who wrote that in Fleming v. Tatum, supra. In the Laixd & Minixxg Company case there was an entire failure to describe in any way the interest of the unknown defendants except to say it was derived from Lee and others. Neither was it stated, directly or inferentially, that this omission was due to a want of knowledge, and this the court in that case pointed out. Neither was there any allegation (as there is, in substance, in this case) that the description contained all the information plaintiff had, both as to the interest and its derivation.

In Davis v. Montgomery, 205 Mo. l. c. 282 et seq., this court held insufficient the allegation “that one Robert C. Hayes was the owner at the time of his death of the above-described premises and real estate and his heirs are now the owners thereof and they are ■unknown to plaintiff, for which reason their names cannot be inserted in this petition.” The court said that the petition was “perfectly silent” upon the matter of the description of the interest of the unknown persons. It was alleged that the unknown persons were “the owners” of the property, which description of interest has been held sufficient under our statute by one of the Federal courts. [Brickell v. Farrell, 82 Fed. l. c. 223.] It is possible to distinguish this case, however, and a discussion of the conflict of opinion between the two cited may be thus avoided.

In the publication attacked in the case at bar there is a sufficient description of the interest of the unknown defendants, i. e., all the description which was within plaintiff’s knowledge, at the time the oath was made, which is all the statute requires in any case. The statute, as above stated, does not exclude from its operation cases in which plaintiff has no knowledge at all of the character of the interest of' unknown defendants but, by clear implication, includes them, providing that the description shall be made “so far as plaintiff’s knowledge extends,” and includes all cases, be plaintiff’s knowledge all or nothing. What the statute includes we shall not exclude. [Huff v. Land & Imp. Co., 157 Mo. 65.]

It is clear that in Davis v. Montgomery, supra, there was no effort to describe the manner in which the interests of the unknown defendants were derived. It was not stated that they took by devise or inheritance from their testator or ancestor, but merely that they were the heirs of Hayes and that they owned the land which he had owned at the time of his death. They might have acquired the land at a sale to pay debts or at a tax sale. There was nó statement, direct or inferential, that the description given contained all the facts within plaintiff’s knowledge concerning it. In these respects the case of Davis v. Montgomery, supra, is unlike that at bar.

It is also urged that the publication was and is void for the reason that it does not contain all the allegations of the petition concerning the interests of the unknown defendant.

We have above indicated our understanding of the actual meaning of the recitals of the order of publication. In meaning, in sense, the publication followed the petition, thus conforming to the statutory requirement. It cannot be that a publication is to be held absolutely void on collateral attack when it advises defendant of the identical facts the petition alleges, though it does not do so in the identical words of the petition. The real purpose of the statute is that the published notice shall advise the unknown defendant of the facts the petition alleges in describing his interest and its derivation, not that the form of the allegation is unvaryingly to be preserved. There is no peculiar sanctity in form. Notice of the facts alleged is the essential thing.

VI. In the circumstances we hold the judgment in the Southwest Land and Orchard Company case valid as against collateral attack. It follows that, under the admission that defendant now has all the title acquired by plaintiff in that judgment, the judgment in the case at bar is right and must be affirmed.

All concur.


author: GRAVES, P. J.

text:
    MARTHA E. STEVENSON, Appellant, v. L. P. BROWN et al.
    Division One,
    March 2, 1915.
    1. APPEAL: Abandoned Issues. If respondents in their brief say nothing about the unpleaded issue of adverse possession, and apparently treat the case as if the evidence failed to show adverse possession, that issue will be considered as having been abandoned.

      2. TAX SUIT: Publication to Defendant by Initials Only: Jurisdiction. Where the deed in the recorder’s office shows title in the full name of the non-resident grantee, and a tax suit is brought against such grantee, by publication, which is the only thing that confers jurisdiction, in which the initials of the grantee only are used, no title passes by a sale under a judgment rendered in pursuance to such published notice. Where the land was deeded to Martha E. Stevenson, an order of publication to M. E. Stevenson gave the court no jurisdiction of the grantee in the suit for taxes, and the judgment and sale were both void.
    3. -:--: Estoppel: Deeds to Other Lands by Initials. A defendant in a suit for taxes may be estopped to complain that the order of publication was not directed to her by her full Christian name, but by her initials only, where the particular land in suit was deeded to her by her initials only. But where she is sued by her initials only she is not estopped to dispute the validity of the tax judgment and sale, by the fact that other lands were deeded to her by her initials only. Where the particular land involved in the tax suit was conveyed to Martha E. Stevenson, she is not estopped to dispute the sufficiency of an order of publication directed to M. E. Stevenson, or to contend that such publication conferred no jurisdiction on the court, by the fact that the records show that other lands in the county were deeded to her in the name of M. E. Stevenson.
    Appeal from Dent Circuit Court. — Hon. L. B. Wood-side, Judge.
    Reversed and remanded.

      W. P. Elmer, B. L. Horsman and C. M. Buford for appellant.
    (1) Martha E. Stevenson was a non-resident of Missouri and was the owner of the land in dispute, and the deed records showed the title in her name. The tax petition, order of publication, proof of the publication, judgment, and deed were all against M. E. Stevenson; hence the judgment was void, and the deed conveyed no title. Shuck v. Moore, 232 Mo. 649; Stanton v. Thompson, 234 Mo. 7; Ohlman v. Sawmill Co., 222 Mo. 62; Evarts v. Lumber Co., 193 Mo.' 433; Grillingham y. Brown, 187 Mo. 181. (2) Accepting title deed to other lands and placing such deed of record does not estop plaintiff from questioning the court’s jurisdiction in the tax case proceedings. Shuck v. Moore, 232 Mo. 649.

      McGee S Bennett and G. G. Dalton for respondents.
    (1) That the case at bar comes clearly within the exception to the general rule, is evident from the language of the court in the cases of Vincent v. Means, 184 Mo. 337, and Mosely v. Riley, 126 Mo. 130. (2) The fact that appellant in this case has accepted deeds to other land in the name of “M. E. Steveson” and recorded them upon the deed records of Dent county, and so designated herself upon the said deed records of Dent county, would estop her from now saying that publication against her in that name was not notice. (3) Acquiescence by the record owner in the tax judgment sale and deed for twenty-five years (thirty-six years in case at bar) is not entirely without significance. The law rewards the diligent. Morrison v. Turnbaugh, 192 Mo. 447.
   GRAVES, P. J.

Statutory action to ascertain and determine title to certain lands in Dent county. Petition is in ordinary form under the statute. The answer is not in the usual form, but contains (1) a general denial, (2) an admission that defendants claim title to the land, and a denial of all other allegations, and (3) the following:

“Defendants further aver that plaintiff has no right of action against them, in that this action for the recovery of lands sold for taxes was not commenced within three years from the time of recording the tax deed under which defendants claim title, and that under and by virtue of the provisions of section 11506a of the Revised Statutes of Missouri, 1909, plaintiff is expressly harred from maintaining this action.

“Wherefore, defendants pray judgment in said cause with their costs sustained.”

No reply is found in the record, but the cause proceeded as if one had been filed. Judgment was for defendants, and plaintiff has appealed.

It was admitted in open court that the common source of title was Martha Ei. Stevenson. Plaintiff offered a deed from William Burns to Martha E. Stevenson dated December 27, 1872, recorded June 7, 1873, and thus rested her case.

Defendants then offered in evidence, over the objection of plaintiff, a sheriff’s deed to Jno. E. Organ, in a tax suit against M. E. Stevenson. The suit was against M. E. Stevenson, and the judgment was entered in April, 1879, covering the lands in dispute here. It was then admitted that defendant, L. P. Brown, had, by mesne conveyances, acquired whatever title passed by this sheriff’s deed, and had paid the taxes thereon for the past ten years. Over the objection of the plaintiff the defendant put in evidence a deed to M. Ei. Stevenson to other lands in Dent county, made in 1875, for the purpose of showing that title was taken and accepted by her in the name of M. E. Stevenson. In rebuttal the plaintiff placed in evidence all papers in the tax suit, and they show the use of the name of “M. E. Stevenson” throughout. The service was by publication.

There was an attempt to show adverse possession, but this was not pleaded, and the proof failed anyway. Such other matters as may be pertinent will be noted in the course of the opinion.

I. In their answer the defendants plead section 11506a, Revised Statutes 1909, as a bar to the action. They also introduced upon trial some facts which they evidently thought tended to show adverse possession. The section of the statute pleaded seems to have had a. checkered career, and the facts shown on trial totally fail to show adverse possession, even if there had been a proper claim of title by adverse possession in the answer. In the brief of learned counsel for the respondents they say nothing about either of these questions, and we therefore take them as abandoned claims. We take it that learned counsel reached the conclusion that there was no merit 'in these two claims, and they having abandoned their own off-spring, it is not for the court to nurture them to life. These matters we therefore pass, and go to the contested question of the case.

II. Plaintiff claims that the tax judgment is void upon its face, and that the tax deed thereunder is void. If this be true she has never been divested of title to this land, and the judgment nisi is wrong.

It stands admitted that this land was deeded to plaintiff in the name of “Martha E. Stevenson.” It clearly appears that she was sued as a non-resident under the name “M. E. Stevenson.” The tax petition so designated the defendant therein. The order of publication (which is the one thing which confers jurisdiction), runs in the name of “M. E. Stevenson.” In fact from the beginning to the end of this tax proceeding the name of “M. E. Stevenson” was used, instead of the right name “Martha E. Stevenson.” During all this time the record owner of this land was Martha E. Stevenson. In recent opinions this court has been very firmly fixed upon the doctrine that where the title to land stands in the full name of the grantee, and the tax proceeding is brought against the grantee, by publication, using the initials of the grantee’s name only, no title passed by a sale under such tax proceeding. This is the fixed and well-defined rule of this court at this time, barring a question of estoppel, to which we will advert later.

In the very late case of Shuck v. Moore, 232 Mo. l. c. 656, Lamm, J., said:

■ “So here, no one can read the answer in this case and the record without seeing that the trial proceeded on the admission and assumption there was an order of publication in the tax suit; that the judgment was based on the order; and that Wells was notified in that order merely by the initials of his Christian name.

“In that view of it, the case was wrongly decided; for the tax judgment was void for want of jurisdiction and the tax deed following falls with the judgment.

“In Gillingham v. Brown, 187 Mo. 181, the true name of the defendant was Aubrey H. Gillingham. Publication was had against ‘A. II. Gillingham.’ The judgment was held had for want of jurisdiction. In Spore v. Ozark Land Co., 186 Mo. 656, publication was made against William D. Spore by the name of ‘ W. D. Spore.’ The cases were reviewed and the same conclusion announced. See, also, Burkham v. Manewal, 195 Mo. l. c. 506; Turner v. Gregory, 151 Mo. 100; Ohlmann v. Sawmill Co., 222 Mo. 62; Stanton v. Thompson, handed down at this delivery, 234 Mo. 7.

“Service of process hy publication is in derogation of common law, is a creature of statute, is harsh at best and highly technical; hence must be strictly pursued. Our revenue laws contemplate that tax suits shall be brought against the record owner by his true name. [R. S. 1909, sec. 11498.]

“The judgment should be reversed and the cause remanded with directions to enter a decree for plaintiff. ’ ’

Again in the still more recent case of White v. Granley, 236 Mo. l. c. 648, this court through Blair, C., said:

“Appellant’s claim of title depends wholly upon the validity of the proceedings in the attachment suit brought by him against respondent in 1905: Necessarily, also, the validity of those proceedings depends in the first instance, upon the efficiency of the order of publication in that case. This court has uniformly held (Skelton v. Sackett, 91 Mo. 377; Vincent v. Means, 184 Mo. l. c. 344; Williams v. Lobban, 206 Mo. l. c. 408; Evarts v. Lumber & Mining Co., 193 Mo. l. c. 449; Proctor v. Nance, 220 Mo. l. c. 112; Spore v. Land Co., 186 Mo. l. c. 660; Turner v. Gregory, 151 Mo. 100) that, except in cases presenting certain elements of estoppel, publication directed to a defendant by initials in lieu of his Christian name, is wholly insufficient and a judgment rendered pursuant to such void publication is itself void. There is nothing in the record which brings this case within the exception mentioned. ’ ’

Under these holdings the tax judgment and deed made thereunder in the case at bar are void, and the title to the land in dispute is yet in plaintiff, unless there is something in the way of an estoppel as is urged in the brief of defendants.

Defendants rely upon the cases of Vincent v. Means, 184 Mo. 337, and Mosely v. Reily, 126 Mo. l. c. 130. C0rL^enti0]a of defendant is that as it appears in this record that the plaintiff had received deeds to other lands in the county in the name of <£M. E. Stevenson,” she is estopped from denying the validity of the notice by publication in the tax proceeding involved in the case at bar. We do not think that these cases go to the extent contended for by defendant. PTad the plaintiff received the title to the land here involved in the name of ££M. E. Stevenson” she would be clearly estopped under these cases. The reason for the rule is found in the statute itself, which requires these tax suits to be brought against the record owner. The question was fully discussed by Gantt, P. J., in Turner v. Gregory, 151 Mo. l. c. 105. It was there said:

“When., therefore, the question of the sufficiency of the order in the Elting case was presented to the court, this court looked to the record and found that the record owner was E. O. Elting. Hence while it was true that while the owner of this land was named Richard 0. Elting, he was entitled to have notice by that name, yét if of his own accord he saw fit to take the title to his land by the name of E. 0. Elting and place it of record, this was an assertion that as owner of that land his name was E. 0. Elting, and when sued by that name for taxes on that land, he was estopped to say that his initials were not a sufficient designation of himself. We have then as to this class of cases a rea-, sonable rule for the determination of this question of the name of the owner.”

That rule is, that if a person takes and puts of record a deed t.o land with his initials instead of the full name, he will be estopped from claiming the insufficiency of a notice giving his name, as found in the recorded deed, in a tax suit to enforce the lien of the State as against this particular tract of land. As to that tract of land he may be said to have adopted, as for his own, the name in the deed. But this doctrine of estoppel cannot be carried further. Thus in the Turner case, supra, it was sought to invoke the doctrine contended for here, by showing that Turner used the name Yaughn or his initials “S. V.” in other business transactions. This was held to be of no avail. This court in this same Turner case (151 Mo. l. c. 106) discusses the Mosely case, relied upon by defendants, and says:

‘ ‘ In Mosely v. Reily, 126 Mo. 124, it will be observed the landowner had been sued by his correct initials and ' judgment obtained and the land sold. Subsequently by the same initials he conveyed the land to a third person who sued the purchaser at the tax sale. When Mosely, the purchaser from Clements, brought ejectment and came into court and claimed title under C. T. Clements, we think he was clearly estopped from denying the validity of a judgment against his grantor by the same name which that grantor used in conveying him the land. That case was decided correctly upon the principles of estoppel. [City Council v. King, 4 McCord, 487.] ”

But throughout these cases will be found the idea that the estoppel does not arise, unless as to the particular land involved in the tax case some act has been done which would' estop the party from saying tnat, as to that tract of land, he had no notice.

In the case at bar the evidence of how other lands were conveyed to plaintiff does not estop her from denying the validity of the notice in this tax suit, wherein the land involved stood of record in the name of Martha E. Stevenson. It follows from what has been said that the judgment should be reversed, and the cause remanded to be proceeded with in accordance with the views of the law here expressed. It is so ordered.

All concur, Bond, J., in the result.