text:
    MARY S. MING, Appellant, v. OLSTER et al.
    Division One,
    March 30, 1906.
    1. PLEADING: Contract: Presumption. When a petition states that a contract was made, the presumption is that it intends to say that the contract was made in form to constitute it a legal obligation; and if it be a transaction that the Statute of Frauds requires to be in writing, the presumption is that the pleader means to say that it was in writing; and if on the trial he attempts to prove it by oral testimony, his adversary may object although his plea be only a general denial.

      2. -: -: -: Partition: Equity. So that an answer to an ejectment brought by one of two devisees which pleads that the devisees made partition of the lands devised to • them whereby the land in suit was set apart to one of them, and he entered into possession and thereafter held it in severalty until he mortgaged it and it was sold thereunder to defendant who holds it under a trustee’s deed, and another tract was set apart to plaintiff who entered into possession and still holds it in severalty, does not plead an equitable defense, even though’ it does not state that the partition was effected by good and sufficient deeds, for the presumption of law is that it was so effected. And if the answer does not go further and allege that the partition rested in parol and that each party entered into possession of the part set apart to him respectively and remained in possession down to the time of the execution of the deed of trust by defendant’s ancestor, and the sale thereunder to defendant, thereby inducing the public to believe that each devisee owned his part in severalty, it does not plead an equitable defense to plaintiff’s ejectment, and under plaintiff’s reply in the nature of a general denial to defendant’s answer he has the right to object to any evidence except such as is required by the Statute of Frauds.
    3. -: -: -: -: Admissibility of Evidence: Genuineness of Deed. But where the allegation of the answer is that the plaintiff and her brother made partition of the land, the reply to which was a general denial, parol evidence tending to show that after the alleged act of partition the parties took possession of their respective parts and thereafter each continued to exercise exclusive ownership over his or her part, is admissible under the issues in the action at law where the genuineness of the deed made by plaintiff and her husband is in issue, since such conduct is consistent only with the validity of the deed, and tends to establish estoppel in pais.

    4. -: Estoppel in Pais. A plea of estoppel in pais is not necessarily a matter of equity jurisdiction; it is cognizable also in courts of law. It is denominated “equitable estoppel” because it arises upon facts which render its application in the protection of rights equitable and just; and under some circumstances, for instance, where it becomes necessary to fill a gap in the record title by a decree vesting the title, full effect cannot be given to the estoppel by a mere judgment ’at law, and in such case a court' of equity can afford more adequate relief; but where no affirmative relief is sought, it may still be invoked to defeat an action at law.
    5. -: -: Partition: Title: Equity Court. In a suit in ejectment wherein the defense is that the land was partitioned by plaintiff and her brother, through whom defendant claims, a plea of estoppel, to the effect that after partition each party took possession of his respective tract and retained exclusive possession until after the brother had incumbered the land by a mortgage under which at foreclosure sale defendant bought, will not invoke the aid of a court of equity if it fails to point out any defect in the legal title under which defendant claims. If defendant relies on the defense that the partition was effected by good and sufficient deeds, evidence that each party took possession of his or her share and retained possession with the other’s consent will be available to establish the genuineness of the deeds, and to estop plaintiff from recovering in ejectment, but the plea of estoppel based on such facts will not authorize a court of equity to affirmatively settle the title in defendant. However, defendant might have pleaded the legal title and the equitable estoppel in the alternative, as authorized by the statute:
    6. PARTITION: Forged Deed: Question of Fact. Whether or not a deed in partition is a forgery is a question of fact, not of law. And if there is evidence tending to sustain the finding of the trial court, sitting as a jury, to the effect that the deed was a forgery, the appellate court will not interfere with that finding.
    7. EVIDENCE: Copy of Deed: Proof of Existence of Origihai. The common-law rule that secondary evidence of the contents of a written instrument cannot be introduced until proof is made to show that there was such a document duly executed, has been supplanted by our registry statute. It ranks the certified copy next to the original, and permits it to be read in evidence whenever the original is not in the possession or control of the pai'ty offering it; and makes it prima facie evidence, subject to be discredited by a showing that either it or the original was a forgery.
    Appeal from Cooper Circuit Court. — Hon. Jas. É. Hasell, Judge.
    Affirmed.

      Bente & Wilson, Joseph F. Rutherford and Marh A. McGruder for appellant. ■
    (1) (a) The certified copy read in evidence showed that the instrument was filed for record- more than one year after its date. Attention of the trial court was called to the date of recording. The deed had not been on record for twenty years before it was offered. Before the original deed could have been received in evidence under these circumstances, it devolved upon the party offering it to first prove to the satisfaction of the court that such deed was acknowledged or proved and recorded according to law, and that'the persons who executed the instrument were the persons therein named as grantors. E. S. 1899, sec. 3114. Certainly no less proof would be required concerning a copy. Our statute provides and this court has held that a certified copy of such an instrument would not be admissible until such proof be first made. E. S. 1899, sec. 3115; Aubuchon v. Murphy, 22 Mo. 123. In this case no such proof was made. The original deed was not offered in evidence, but the copy of the record was offered and by the court admitted in'evidence, over the plaintiff’s objection and offer to prove that the deed was a forgery, and without hearing any proof whatever as to the execution of the deed by the persons therein named as grantors, (b) Objection was made by plaintiff’s counsel to the introduction of both the original and certified copy of the record, on the ground that the instrument was not executed by one of the persons in whose name it purported to have been executed, and plaintiff offered to submit proof in support of such objection. It was the duty of the court to then hear evidence upon this point and admit or reject the instrument, according to the evidence. The court admitted the certified copy, over said objection, and without hearing any evidence as to whether John 0. Ming, the husband of plaintiff, executed the instrument. E. S. 1899, sec. 3117. (e) The certified copy was not admissible until defendants had first shown that John 0. Ming executed the original. When it appears that the original has been lost or destroyed, a certified copy of the record thereof is admissible upon like proof as is required in case of the original. That is to say, proof that the person who executed the instrument is the person therein named as the grantor. In this case no such proof was offered, or even required by the court, (d) Plaintiff disputed the existence of the original deed, executed as required by the statute in force at the time. The certified copy offered in this case did not tend in any manner to prove the execution of the original instrument. Although the copy appeared to be in proper form, yet it had not been recorded for more than a year after the date of its alleged execution, and it certainly could not be said that the copy would in any manner tend to prove “that the person who executed the instrument is the person therein named as grantor.” “Secondary evidence cannot be substituted for any writing, the existence of which is disputed.” 2 Elliott on Evidence, sec. 1268, p. 518. (e) It is fundamental that the copy introduced was secondary evidence, and, as such, was admissible only upon proper showing of the loss or destruction of, or inability to produce, the original. To render secondary evidence admissible in any event, it must first be made to appear by the evidence that the original instrument had an existence as a genuine instrument. 2 Elliott on Evidence, sec. 1458; Atwell v. Lynch, 39 Mo. 520; Perry’s Admr. v. Roberts, 17 Mo. 36; Holman v. Bacchus, 24 Mo. App. 629; Zollman v. Farr, 93 Mo. App. 236; Hammond v. Johnson, 93 Mo. 208. (f) The copy of the acknowledgment contained in the certified copy offered was no proof of the previous existence of a genuine deed. Smith v. Phillips, 25 Mo. 557; Hammond v. Johnson, 93 Mo. 209: (2) (a) The original deed was not put in evidence. It was shown to the court and the attention of the court called to alterations in the instrument. It was not incumbent upon plaintiff to explain these alterations or mutilations. Defendants relied upon this deed. The rule is that the party relying on the instrument must explain alterations. Stillwell v. Patton, 108 Mo. 353. (b) The original was not before the court as evidence, no proof being made that it was executed by the parties named as grantors. The execution not having been proved according to law, the instrument was not entitled to record, and hence the copy was valueless as evidence. Patterson v. Fagan, 38 Mo. 71. (c) In this stage of the record the time, nature or extent of the alteration seems to be wholly immaterial. The original was not filed for record within one year after its date. There was no proof that John 0. Ming, named therein as a grantor, executed the deed. Whether altered or not the original was not admissible without such proof. R. S. 1899, secs. 3114, 3115. (3) In addition to their legal defense, defendants also pleaded an equitable defense, praying for affirmative relief. No affirmative relief is given, however, as appears from the judgment of the court. We insist that the alleged partition could not be confirmed, even at the instance of Fisher, for the reason: (a) that such partition was never made; and (b) that the alleged partition was not fair and equal; and (c) the parties did not take possession of their respective portions under and in accordance with the terms of such partition. Grulick v. Huntley, 144 Mo. 249; Sutton v. Porter, 119 Mo. 104; Nave v. Smith, 95 Mo. 596. (4) (a) Defendants’answer further alleges that relying upon the parol partition, Marshall was induced to loan Fisher money, evidenced by the note and deed of trust, and was afterwards induced to purchase this land at the foreclosure sale, and upon these grounds a court of equity is asked to hold that plaintiff is estopped from claiming her interest in. this land. “Before the party is concluded by an estoppel, it must appear, first, that he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title or claim he proposes to set up; second, that the other party has acted on the admission; third that the other party will be injured by allowing the truth of the admission to be disproved.” Acton v. Dooley, 74 Mo. 67; Burke v. Adams, 80 Mo. 504. (b) Plaintiff must have done some act with the intention that the other party should act upon it, and the other party must have been induced thereby to act, and to his injury. Bigelow on Estoppel, 480; Burke v. Adams, supra. (5) (a) There is no finding in this case upon the equitable defense or cross-action pleaded in the answer. The conclusion, therefore, is irresistible that the trial court’s finding in this case was upon the legal defense raised by the answer. Baldwin v. Whaley, 78 Mo. 186; Joyce v. Growney, 154 Mo. 253; Ross v. Ross, 81 Mo. 84. (b) Unless a judgment is responsive to the issue set up in the pleadings, it is erroneous. Schneider v. Patton, 175 Mo. 684.

      A. F. Rector and W. M. Williams for respondents.
    (1) The certified copy from the records of Saline county of the deed dated January 31, 1882, from plaintiff Mary S. Ming and John 0. Ming, her husband, to James P. Fisher, was properly admitted in evidence, (a) It was shown that the original was not within the power of the defendants. No notice to produce the deed was necessary. R. S. 1899, sec. 933; Gilbert v. Boyd, 25 Mo. 27; Bartain v. Murrain, 27 Mo. 238; Frank v. Reuter, 116 Mo. 521. (b) The instrument presented by plaintiff had been mutilated and changed since it was recorded. It was apparent from an inspection that material alterations had been made in it and the circumstances. cast a suspicion upon it. It did not come from the proper custody. Defendants do not claim under it. Plaintiff, upon the contrary, produced it to defeat their rights and to overthrow their title. Defendants were not precluded from using the certified copy by the production of an instrument by plaintiff, which showed upon its face material and suspicious alterations since its record. There is no presumption that said paper produced by the plaintiff is in the same condition as when executed. Paramour v. Lindsay, 63 Mo. 63; Burton v. American Guarantee Co., 88 Mo. App. 392; Derr v. Mason, 1 N. J. Law 10. (c) The record made on the 14th of June, 1883, was better evidence of the contents of the deed when it was executed and delivered than the mutilated paper produced by plaintiff, showing upon its face material and suspicious alterations after its record. Walker v. Walker, 46 Pa. 571. (2) A certified copy of a deed, regular upon its face and properly acknowledged according to the records, may be admitted in evidence where the original is “not within the power of the party wishing to use the same. ” E. S. 1899, sec. 933. (a) When so admitted it is prima facie evidence of the due execution of the original deed, as well as of its contents, and no further proof of execution is necessary. Eaton v. Campbell, 7 Pick. 10; Hathaway v. Spooner, 9 Pick. 25; Ward v. Puller, 32 Mass. 187; Scandal v. Wright, 30 Mass. 523; Blasey v. Delius, 86 111. 558; Kelsey v. Hammer, 18 Conn. 311. (b) The fact that plaintiff denied the execution and acknowledgment of the deed was not sufficient to exclude the certified copy. Sudlow v. Wa'rshing, 108 N. T. 522; Thurman v. Cameron, 24 Wend. 92; Gary v. Kansas City, 61 Mo. 378; Dale v. Wright, 57 Mo. 110. (c) The fact that it was recorded raised a presumption of a delivery of the deed. McEeynolds v. Grubb, 150 Mo. 362. (3) Defendants having introduced a certified copy, which was prima facie evidence of the due execution and acknowledgment of the deed from Mary S. Ming and John O. Ming, her husband, to James P. Fisher, the burden was on the plaintiff to overthrow the certificate of acknowledgment attached thereto, (a) ‘ ‘ Extraneous evidence to overcome the certificate of acknowledgment must be strong and convincing. ’ ’ Springfield Engine & Thresher Company v. Donovan, 147 Mo. 633. (b) The trial court was not bound to take the testimony of Mary S. Ming and the notary as outweighing the certificate. The evidence of the notary could not have much weight to overthrow his certificate. He spoke from recollection of what passed nearly twenty years before. Riecke v. Westenhoff, 10 Mo. App. 363. (c) The question whether the deed from Mary S. Ming and husband to James P. Fisher was executed and delivered by them was a question of fact for the trial court upon the legal defense set up in the answer, and this issue was found in the affirmative. Defendants, .therefore, had the legal title. This court will not review the findings of fact by the trial judge upon this matter. The weight of the evidence was for the court below, (d) The trial court was amply justified in its findings. (4) Sections 3113, 3114, 3115 and 3116 of the statutes, cited by appellant, have no application to the certified copy of the deed read in evidence in this case. The first three of the above sections refer to deeds or conveyances acknowledged or proved according to the law in force at the time of making such acknowledgment, but which are not declared by such law to be evidence, and the last is concerning a deed or conveyance recorded more than twenty years, but which shall not have been proved or acknowledged according to the law in force at the time of its record. The deed from Mary S. Ming and John 0. Ming, her husband, was recorded June 14,1883. The certificate of acknowledgment was in the form prescribed by the statutes of 1879, which were then in force. Sections 696 and 697, Revised Statutes 1879, provide that a deed, so acknowledged and recorded, or a certified copy thereof, when the original is not within the power of the party wishing to use the same, may be read in evidence. (5) The partition, even though no deeds had been executed, and although Mary S. Ming was then a married woman, was valid and binding. The parties took possession of their respective farms, executed deeds of trust or mortgages upon the same separately, and as sole owner, and otherwise exercised control thereof. Sutton v. Porter, 119 Mo. 100; Freeman on Cotenancy and Partition, sec. 412; Whitsett v„ Wamack, 159 Mo. 14.
   VALLIANT, J.

— Plaintiff sued in ejectment for an undivided half of a tract of land in Saline county containing 584 acres; the cause was taken by change of venue to the circuit court of Cooper county where it was tried and judgment rendered for defendants, from which judgment the plaintiff has appealed.

The petition is in the usual form. The answer of defendant Olster admits that he is in possession as tenant under his co-defendant Marshall, and denies all the other allegations of the petition. Defendant Marshall by his answer admits that he is in possession in the- person of his tenant Olster and denies all other allegations of the petition; then he goes on to plead what he calls an equitable defense which is substantially as follows: The land in suit with other lands were owned by one Jacob H. Fisher in his lifetime, who died in 1866 leaving a will whereby he devised this and his other lands to his two children, James P. Fisher and the plaintiff, Mary S. Fisher. That in January, 1882, James and Mary, she being then Mrs. Mary S. Ming, made partition of the lands devised to them, whereby the land in this suit, called the Shroyer farm, was set apart to J ames Fisher, and a certain other tract, called the Finley farm, was set apart and conveyed to the plaintiff, Mary S. Ming, each entering into possession of the farm allotted to him and her respectively and holding it thereafter in severalty. That in 1887 James Fisher executed a deed conveying the Shroyer farm to a trustee, to secure a certain promissory,note therein described, with power of sale. That in December, 1900, default in payment of the note having been made, the deed of trust was foreclosed according to its terms, the land sold and bought at the trustee’s sale by defendant Marshall for the sum of $18,500, to whom the trustee executed a deed, under which this defendant went into possession and holds the same. That this defendant made the loan to J ames Fisher, for which the note and deed of trust above mentioned were executed, relying on the partition and on the fact that the plaintiff went into possession of the Finley, farm thereby set apart to her and has ever since held the same, and therefore she is now estopped from asserting any claim to the Shroyer farm set apart to her brother James Fisher. The answer concludes with a prayer that the partition be confirmed, the title to the Shroyer farm be decreed to defendant Marshall and the plaintiff be enjoined from asserting title thereto. The reply denies that there was any partition and says that if James Fisher gave a deed of trust on the Shroyer farm, as alleged, it was without her knowledge or consent.

I. Before referring to the evidence, let us go to the pleadings and ascertain what the issues were. This becomes necessary in the consideration of one of the assignments of error by appellant, that is, that the general finding for defendants without reference to what is called the equitable defense pleaded in the answer, was not responsive to the issues, ánd that the general judgment thereupon left the equity feature of the case undisposed of or left the plaintiff at sea without knowing whether she was defeated on the one or the other phase of the case.

The answer does not really set up an equitable defense and there was no evidence offered by defendants which, if admissible at all, was not admissible under the general denial in defense of the legal title.

Defendants relied for their title on the alleged partition between the brother and sister. If that partition was executed by means of a deed or deeds executed according to law, it was a complete legal defense to the plaintiff’s action. If it was not executed by means of such deeds, but rested in parol and in the fact that the parties entered into and remained in possession, each of his and her allotted part and the continuance of that situation down to the time of the execution of the deed of trust, inducing the public to believe that each owned Ms and her several farms respectively, and on the faith of that the loan secured by the deed of trust was obtained by James Fisher, then a case for the interposition -of equitable jurisdiction would arise. But tMs answer does not say that that was a parol partition and for that reason it fails to show any ground for the interposition of the powers of an equity court. True the answer does not say that the partition was effected by g’ood and sufficient deeds of conveyance, but that is not necessary. When a petition states that a contract was made, the presumption is that it intends to say that the contract was made in form to constitute it a legal •obligation, and if it be a transaction that the Statute of Frauds requires to be in writing, the presumption is that the pleader means to say that it was in writing, and if on the trial he should attempt to prove it by oral testimony his adversary may object although he may have entered only a general denial. [Allen v. Richard, 83 Mo. 55; Springer v. Kleinsorge, 83 Mo. 152; Boyd v. Paul, 125 Mo. 9.]

It is the fact, but not the evidence by which the fact is to be proven, that is required to be pleaded. Therefore, treating this answer as an affirmative defense setting up the act of partition; the plaintiff under the general denial in her reply had a right to object to any evidence except such as would be admissible under issues as in an action at law, that is to say, written evidence as required by the Statute of Frauds.

There was some evidence in the case tending to show that after the alleged act of partition the parties took possession of their respective shares and each thereafter continued to exercise acts of exclusive ownership of his and her part. That was evidence of a kind that would have been admissible to sustain an equitable or parol partition, but there was no objection to the evidence made on that ground, or if made there was no exception preserved. Besides, as will hereinafter more clearly appear, such evidence would have been admissible in this case under the issues in the action at law, because the main point of conflict was as to the genuineness of the deed in partition alleged to have been executed by the plaintiff and her husband; such evidence tended to show her treatment of her property and her knowledge of her brother’s treatment of it, consistent only with the validity of the deed whose genuineness she now disputes, and thus it tended to meet her evidence on that point.

A plea of estoppel in pais is not necessarily a matter of equity jurisdiction; it is cognizable also in courts of law. In Bigelow on Estoppel (5 Ed.), p. 557, it is said: “Though still called ‘equitable estoppel,’ it is as fully available at law as in equity. ” In 16 Cycl. L. & P., p. 682, it is said: “The term [estoppel in pais] was borrowed originally from equity and hence denominated ‘equitable estoppel.’ Equitable estoppels are so called not, however, because their recognition is peculiar to equitable tribunals, but because they arise upon facts which render their application in the protection of rights equitable and just. The doctrine is recognized in the courts of common law just as much as in courts of equity, although it was at first administered as a branch of equity jurisprudence.”

Under some circumstances, however, full effect cannot be given to the estoppel by a mere judgment at law, for example, where it becomes necessary to fill a gap in record title by a decree vesting the title. The law-writer last above quoted says: “Where, however, the estoppel sought .to be set up involves the title to land or interests therein which can only be transferred by deed, it is held in some jurisdictions that it cannot be taken advantage of in an action at law. ’ ’ [16 Cycl. L. & P., pp. 725-6.]

In the case at bar, if the partition relied on by defendants was not evidenced by a legal deed or deeds, but rested its proof only in parol, whilst a court of law might have taken cognizance of the plea yet a court of equity could have rendered more adequate relief by an affirmative decree transferring and vesting the legal title where it would have been if a proper deed at the time had been executed by the parties.

Defendants’ plea of estoppel in the case at bar says in effect that the plaintiff and her brother, owning jointly these two farms, made partition of them, giving to her one and to him the other, whereupon each took exclusive possession of the one allotted to her or him, assuming all the indicia of separate ownership, and on the faith thereof the brother of the plaintiff obtained the loan for which he executed the deed of trust under which defendants claim, therefore the plaintiff ought not to be heard to dispute the fact of partition, and a court of chancery ought to make a decree settling the title. The'defect in the defendants’ plea of estoppel is that it fails to point out any flaw in the legal title under which they claim, and therefore gives no reason for invoking the aid of an equity court. This was not an accidental omission, as was shown by the course of the defendants at the trial; their position then was and now is that the partition was effected by good and sufficient deeds, and if that is the case there was no occasion for invoking the doctrine of estoppel; there is no room for its application. Defendants might, if they had chosen to do so, have availed themselves of the privilege of pleading the legal title and the equitable estoppel in the alternative, as authorized by section 605, Revised Statutes 1899, but they did not do so. As it is, the answer sets up no defense that could not have been proven under the general denial, and there was nothing for the court to try except the issues involving the legal title, which the court did, a jury being waived. -

II. At the trial the plaintiff introduced in evidence the will of her father Jacob H. Fisher by which the farm in suit and other farms were devised to her brother and herself; also evidence as to its rental value, a decree of a court in Montana granting her husband a divorce and dissolving their bonds of matrimony, and a lease dated in November, 1900, from plaintiff to Olster for this Shroyer farm.

Defendants evidence was as follows:

1. A certified copy of what purported to be a deed executed by the plaintiff and her then husband, John O. Ming, conveying with general warranty to James P. Fisher the land in suit. It was dated January 31, 1882, filed for record June 14, 1883; the consideration expressed was the conveyance to her of Fisher’s undivided half of the Finley farm. The copy was duly certified by the recorder of deeds of the county.

"When this was offered it was objected to on the ground that “no such deed was ever executed and for the further reason, if it had been, the original would be the best evidence.” Defendants then introduced evidence to show that the original was not in their possession or under their control. Thereupon counsel for the plaintiff presented a paper which they said “purports to be the original.” "When asked if they tendered the original deed they answered: “We make no tender of it. We have it here and we object to your using .copy.” The paper was then shown to the court, and the attention of the court was called by defendants’ counsel to what appeared to be erasures causing it to differ in material points from the certified copy, the chief point of difference being the erasure of the name of John 0. Ming in the certificate of acknowledgment. The certified copy was again offered in evidence and counsel for plaintiff said: “We make the further objection to the original deed in this case that it is a forgery, and now offer to prove that the original deed as tendered here was never executed, signed or acknowledged by John 0. Ming; and that the certified copy in this case is a copy of a forged deed which never existed.” The court allowed the copy to be read, to which plaintiff duly excepted.

2. A deed of trust dated October 27, 1887, by James P. Fisher to Robert J. McMahan, trustee, conveying the land in suit to secure James A. Marshall in the sum of $12,200, duly acknowledged and recorded. Objection to this was made on the ground that James ■could not convey Mary’s title.

3. A deed from the sheriff acting as substituted trustee foreclosing the deed of trust, dated January 5, 1901, conveying the land to James A. Marshall for the sum of $18,500 cash, to the trustee paid.

4. A deed from James P. Fisher conveying the Finley farm to Mary S. Ming, of the same date as the ■deed from Mary S. Ming and John O. Ming, her husband, above shown, and filed for record March 1, 1882.

5. A deed of trust executed by Mary S. Ming, December 7,1888, conveying the Finley farm to a trustee to secure the Missouri Trust Company in the sum of $2,400, duly acknowledged and recorded December 12, 1888j with subsequent notation on the margin of the record that the debt had been paid and the deed of trust released.

6. A similar deed of trust on the same land executed by Mary S. Ming to secure a debt of $4,000 dated April 1, 1900, to another party.

The testimony showed that the two deeds of partition, of date January 31,1882, were in the handwriting of John O. Ming, the then husband of the plaintiff.

There was other evidence on the part of defendants tending to show that James Fisher exercised acts of exclusive ownership over the Shroyer farm and that the plaintiff did so with the Finley farm and that all the while they lived together in the town of Houstonia.

Plaintiff in rebuttal introduced evidence tending to show that the Finley farm was not as valuable as the Shroyer farm and therefore the partition was not an equitable one. This evidence was addressed to what was supposed to be the equitable defense in the case. Plaintiff also introduced evidence tending to show that she and her brother for several years after the alleged partition, together exercised acts of ownership over both the farms. Also evidence tending to show that her former husband did not execute the partition deed or acknowledge it, that his name was forged to it.

It is unnecessary to set out the plaintiff’s evidence tending to prove that the deed of partition was not signed or acknowledged by her husband; it is sufficient to say that such testimony was introduced and that it was weighed by the court and found wanting. The original deed exhibited by the plaintiff showed that it had been tampered with and the circumstances justified the court in concluding that the erasures had been made after the deed had been recorded.

The cause "was submitted to the court without any instruction or declaration of law being asked or given. There was no exception taken to any ruling* of the court on the admission of evidence except that.in relation to the admission of the certified copy of the deed from the plaintiff and her husband to James Fisher, and the only ground of objection to that, other than that it was a copy, was the assertion that the original was a forgery, which of course presented a question of fact, not of law.

Plaintiff complains that the court ought to have interrupted the order of procedure and allowed her to inject her testimony tending* to show that the deed was a forgery into the defendants’ case before they had rested. But that would have been irregular. When the defendants showed that they did not have the original deed or control of it they were entitled, under the express terms of the statute, to read the certified copy in evidence. [Sec. 933, R. S. 1899.] When her turn came, the plaintiff was allowed to introduce all the evidence she offered tending to discredit the deed.

Plaintiff invokes the common-law rule of evidence that secondary evidence of the contents of a written document cannot be introduced until proof is made to show that there was such a document duly executed. But our statute gives tbe certified copy of a recorded deed a force as evidence which was not accorded to a mere copy at common law. The statute takes into account that the recorder has examined the deed before he puts it on record and it ranks his certified copy next to the original and allows it to be read in evidence whenever the original is not in the possession or control of the party offering it. The law makes the certified copy only prima facie evidence, however, and the other party may, if he can, discredit it by showing, as the plaintiff tried to do in this case, that the pretended original was a forgery, or discredit the copy in any other manner to which it is amenable. That privilege was accorded to the plaintiff in this case; she was allowed to show, if she could, that there was no such deed executed. But her proof did not satisfy the trier of the fact. We find.no error in the record.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    KATE MARTIN et al. v. KITCHEN et al., Appellants.
    Division One,
    March 30, 1906.
    1. EJECTMENT: Equitable Title. Tbe general rule of law Is (subject to exceptions not in this case) that plaintiff may not recover in a strictly legal action like ejectment on an equitable title, although a defendant in ejectment may, by virtue of . our Code of Pleading, plead an equitable defense and thereby defeat an outstanding naked legal title.
    2. -: Deed: Sufficiency of Description: “North of Castor River.” A deed of trust, and the trustee’s deed at foreclosure sale, through which plaintiffs claim and sue for in ejectment the northwest quarter of the northwest quarter of section 7, township 27, range 10 east, in Stoddard county, alleged to contain 53 acres more or less, described the land as the “northwest quarter of section seven north of Castor River,” naming the State and county, but omitting all reference to township and range. It was shown at the trial that there were several sections seven in Stoddard county north of Castor river; the particular tract in suit was not known in the community by the-description “north of Castor river;” and while the description running through the deeds prior to the deed of trust partly designated the land as “north of Castor river;” yet it was not so used as to be a name of designation, as an earmark identifying it. Eeld, that, keeping in view the rule (1) that land may be conveyed by any description sufficient to identify it and (2) that parol proof is admissible to identify the subject of the grant, the deed of trust and trustee’s deed were void because of patent ambiguity in the description, and were of no-effect as a basis for a strict legal title.
    Appeal from Stoddard Circuit Court. — Roto. J. L. Fort,. Judge.
    Reversed and remanded (with directions).

      Kitchen & Woody and Mozley <3 Wammack for appellants.
    (1) The deed of trust, and the trustee’s deed based thereon, offered by plaintiffs, should have been excluded by the court for the reason that they describe no property that could be located or identified from an inspection of the instruments. While there seems to no technical rule in regard to description of lands in a conveyance, yet it is always held that the description must be contained in the instrument or its references with such certainty that the land can be located and ascertained from it. Brown v. Walker, 11 Mo. App. 226,. 85 Mo. 262; Blow v. Vaughn, 105' N. C. 198; 1 Ballard’s Annual on Law of Real Estate, 165. The test in the-case at bar is, could a competent surveyor have taken the description contained in the deed of trust and from it have located the property with certainty? We contend that he could not for the reason that the proof shows there are several sections in Stoddard county that answer to the same general description, “north of Castor river,” and he could not tell from the instrument which section was designated in the deed. The trust deed, and the trustee’s deed, are absolutely void and inoperative as conveyances because of tbe omission of tbe township and range from the description of the lands attempted to be described in said instruments. “The courts never permit parol evidence to be given, first to describe the land, and then apply the description.” Mudd v. Dillon, 166 Mo. 120; Haughton v. Sartor, 71 Miss. 357; 3 Ballard’s Law Annual, 247. (2) The defects in the deed under consideration are patent, and resort canot be had to parol or otherwise extrinsic evidence to identify and make certain the land conveyed. Mudd v. Dillon, supra; Haughton v. Sartor, supra; Campbell v. Johnson, 44 Mo. 247; Jennings v. Brizeadine, 44 Mo. 332; King v. Fink, 51 Mo. 209. (3) Defendants purchased the land without notice of plaintiffs ’ claim of title, and in the absence of actual knowledge on the part of defendants of plaintiff’s claim, the trust deed and trustee’s deed did not constitute notice to subsequent purchasers from the common source. Carter v. Holman, 60 Mo. 498; Land & Lumber Co. v. Franks, 156 Mo. 673.

      Wilson Cramer for respondents.
    (1) The deed of trust and trustee’s deed, being regular in form and duly acknowledged and certified according to law, were entitled to record and were recorded on the land records of Stoddard county promptly after their respective dates. 1 Wagner’s Statutes 1872, p. 277, sec. 24. (2) The defendants claim through a quitclaim deed executed by William R. Kitchen, made nearly ten years after the recording of the trustee’s deed. (3) Aside from the other recitals in' the deed of trust and trustee’s deed hereinafter adverted to, which render the description certain, these conveyances are not void because of the omission of the township and range, but are good between the parties. Gatewood v. House, 65 Mo. 633; Bollinger v. McDowell, 99 Mo. 632 ; Fordvce v. Rapp, 131 Mo. 354. (4) If good between the parties they must be valid as against subsequent purchasers with notice from the same grantor. (5) Deeds are to be so construed as to carry out, if possible, the intention of the parties. Preswell v. Headley, 141 Mo. 187; Briant v. Garrison, 150 Mo. 655; Walton v. Briant, 152 Mo. 489. (6) The description in a deed is to be construed most favorably to the grantee. 3 Washb. Real. Prop. (3 Ed.), p. 343; Bray v. Conrad, 101 Mo. 331; Cole v. Mueller, 187 Mo. 638. (7) The intention of William R. Kitchen in executing the deed of trust was to secure the payment qf a debt due to Edward Martin & Co., and to convey for that purpose lands lying in sections 6 and 7 in township 27, range 10. He owned no other land in Stoddard county. By mistake of the scrivener, evidently the township and range were omitted, and the land was described as follows: . “ The south half of lot one of the southwest quarter of section six and northwest quarter of section seven, north of Castor river.” The plat-book of original entry shows that Castor river runs east and west through the northwest quarter of section 7, township 27, range 10. There is no other section 7 in Stoddard county, the northwest quarter of which is touched by Castor river. The evident purpose was to convey that part of the northwest quarter of section 7 lying north of Castor river and adjacent to it. This is made clear by reference to the several deeds through which William R. Kitchen acquired title, all of which were of record and were introduced by plaintiff. (8) That the words “north of Castor river” were descriptive words, used to designate land lying adjacent to the river, and were so understood, is further shown by the fact that the same words are used in the deeds made nearly ten years after the trustee’s sale. (9) There being no other northwest quarter of section 7 in Stoddard county through which Castor river runs, and the plain, evident meaning of the words “north of Castor river ’ ’ being' that the land conveyed was on the north side and adjacent to Castor river, the description, the deed of trust and the trustee’s deed identify the land as being in section 7, township 27, range 10. (10) The several conveyances to which William E. Kitchen acquired title, as well as the deed of trust executed by him, were in defendants’ chain of title, and they are bound by every recital therein. Webb on Eecord of Title, sec. 178; Tydings v. Pitcher, 82 Mo. 379; Mason v. Black, 87 Mo. 329; Knox Co. v. Brown, 103 Mo. 223; McDonald v. Quick, 139 Mo. 484. (11) The circumstances shown by 'the evidence justify the conclusion that defendants had actual knowledge of the prior conveyance made by William E. Kitchen, and under whom he claimed. He and his immediate grantors were cousins of William E. Kitchen, and this is a fact which may be considered in connection with the question of notice. Webb on Record of Title, sec. 224; Morrison v. Juden, 145 Mo. 282.
   LAMM, J.

— This is a suit in ejectment brought by the widow and heirs at law of Edward Martin, deceased, to recover from George S. Kitchen and his wife the possession of the northwest quarter of the northwest quarter of section 7, township 27, range 10 east, in Stoddard county, alleged to contain 53 acres, more or less. Why the wife of Kitchen was made a party defendant does not appear.

The answer disclaims any interest in or title to 3.75 acres off the northeast corner of said tract; avers that said 3.75 acres were sold for taxes for the years 1872 to 1876 inclusive under an execution issued on a judgment for taxes against William E. Kitchen, covering the whole northwest quarter of the northwest quarter, which was levied on as his land, and said 3.75 acres were purchased by Edward Martin & Co. at said sale in September, 1882; that Edward Martin was the ancestor of plaintiffs and by such purchase at execution sale he admitted the title to the locus at the date of the purchase, was in W. R. Kitchen, from whom both plaintiffs and defendants claim title, and that by said purchase plaintiffs are estopped from denying that "W. R. Kitchen was the owner of and held title to the land at that date. The answer also tendered the general issue.

The replication denied all new matter pleaded in the answer.

The cause was tried before the court without a jury. A judgment was rendered for plaintiffs for possession (damages, rents and profits were not adjudged), and defendants perfected their appeal in conventional form.

The story of the case is as follows:

W. R. Kitchen is the • common source of title, and on November 12, 1873, he executed a deed of trust to Daly, trustee, for the benefit of Edward Martin & Co. of St. Louis, securing two notes for $257 each, due respectively in six and twelve months, on two several tracts of land in Stoddard county, one of them being described as the “northwest quarter of section seven, north of Castor river,” omitting all reference to township or range. This deed of trust was in usual form, was duly placed of record and was foreclosed, because of default, by the sheriff of Stoddard county, as acting trustee, on the 15th day of August, 1877, who straightway executed a trustee’s deed to the purchaser, Edward Martin, on his bid of $300 in the aggregate for both tracts covered by the deed of trust, who presently recorded the same. In the trustee’s deed the land is also described as the “northwest quarter of section seven, north of Castor river, ’ ’ and while the state and county are mentioned, no township or range is given.

Plaintiffs seek to deraign title through these two deeds, and the principal controversy hinges on the omission of the township and range from the description made by the conveyancer. "When the trust deed was offered in evidence and the trustee’s deed, following that, defendants objected for the reason, among others, that said deed described no property. This objection was overruled, the deeds were admitted and defendants excepted to the ruling.

Defendants seek to deraign title through a series of deeds commencing with one from the said W. R. Kitchen and his wife to George W. Kitchen of date of March 4, 1887, recorded September 5, 1887, describing the land as the “north fractional half of the northwest quarter, north of Castor river, in section 7, . in township 27 north, of range 10 east;” followed by one from G. W. Kitchen and wife to William G. Kitchen of date of September 18, 1893, recorded December 9, 1893, similarly describing the land; followed by one from W. G. Kitchen to W. J. Kitchen, dated November 3, 1893, recorded November 6, 1893 — the former deeds were quitclaims — this was a warranty deed and described the land in controversy, omitting in terms, however, the 3.75 acres in the northeast comer to which defendants disclaim title and in which they disclaim any interest. This deed refers to the tract, as thus diminished, as containing 49.67 acres. Defendants then produced in evidence a warranty deed from W. J. Kitchen to defendant George S. Kitchen dated February 20,1894, recorded April 2,1894, consideration $270, and describing the land as in the last conveyance.

Supplementing their record evidence aforesaid, plaintiffs introduced a patent from the Government to Martin Wilfong, patentee, and mesne conveyances from said patentee down to the common source of title, W. R. Kitchen. In one of these deeds the land is described as “all the part north of Castor river in the northwest quarter of section 7, township 27, north, of range 10 east.” In another of‘these mesne conveyances, the same description is used. In one other of these mesne conveyances, the following description is used: “and the northwest quarter of section 7, north of Castor river.” In others of these mesne conveyances, Castor river is not referred to. The object of introducing that part of the chain of title preceding the admitted common source of title, was to show the theory of plaintiffs, to-wit, that the phrase “north of Castor river” was an earmark in the description of the land and tended to identify the tract and cure the omission of the township and range, of all of which, they say, defendant must take notice from the record.

Plaintiffs also introduced the platbook of original entries of Stoddard county, so far as it related to section 7, township 27, range 10. This platbook showed a watercourse meandering through section 7, as indicated by the following crude, free hand diagram in which “A” represents the northwest quarter of the northwest quarter, entered by Martin Wilfong,“BCD” represent the meander of Castor river, and “C” represents the center of section 7:

Plaintiffs supplemented their record evidence by oral evidence tending to show that Edward Martin was dead and that plaintiffs were his heirs at law, and other oral evidence tending to show that defendant George S. Kitchen was in possession, that the reasonable rental value of the cultivated part was three dollars per acre, and that between thirty and forty acres were in cultivation. To all this evidence defendants objected, ‘ ‘ because the deeds from which they claim title are so vague and indefinite as not to transfer any title and are not subject to explanation by parol testimony.” Defendants’ objection being overruled, they saved an exception. The platbook introduced did not indicate the watercourse shown thereon as bearing the name of Castor river, and plaintiffs introduced oral evidence, over the objections of defendants, tending to show that the name of that watercourse was Castor river.

No possession was taken by plaintiffs’ ancestor under his claim of title, nor were plaintiffs or either of them ever in possession of the premises.

On their part defendants introduced oral testimony showing that George S. Kitchen was living on the land with his family as a home; that it was wholly out-, lying in the woods and unfenced when he bought it; that he had cleared all that was cleared, to-wit, about forty acres, had built three dwelling-houses thereon, one a pretty good house at the cost of $500, the others not so good; that he made his first improvements in the year 1895 or 1896, when he went into possession; that he paid five dollars an acre for it as it lay in a state of nature in the wilderness; that, besides the dwelling-house, he had built a barn costing about $130, had put up other improvements and put out a small apple orchard ; that, at the time he bought the land by warranty deed, he knew nothing about the deed of trust given Edward Martin & Co. by William R. Kitchen and thought he bought a genuine title; and that he had paid the taxes from the year 1895 down to the time of the suit and claimed to own the land. By W. J. Kitchen, grantor of George S. Kitchen, and who also held by .warranty deed, it was shown that he knew nothing about any misdescription of land in any of the deeds. It was also shown that all the Kitchens, appearing as grantor and grantees in the numerous deeds, were either own cousins or second cousins.

Defendants also introduced the whole platbook of Stoddard county, showing, inter alia, that Castor river enters the county at the northwest corner of section 31, township 28, range 10; and runs thence almost due south to the north boundary of township 27; thence in a general southwest direction to the center of section 2, township 27, range 9; thence east and southeasterly to section 17, township 26, range 12; and thence south, bearing east, to the south boundary line of the county in section 14, township 23, range 12. By this plat it was also shown that Castor river bisects section 7, township 26, range 12, so that, the northwest-quarter thereof is north of that river. It also shows that section 7, township 27, range 11; section 7, township 28 of the same range; section 7, township 27, range 12, and the northwest quarter of fractional section 7, township 28, range 12, in Stoddard county, are each and all north of Castor river.

Defendants were allowed to introduce the sheriff’s deed to Edward Martin &- Co. conveying the 3.75 acres in the northeast corner of the locus, referred to in the answer. But, as will presently appear, the terms of this deed are immaterial and, hence, need not be set forth further than to say that they were as pleaded in the answer — it seems that the whole northwest quarter of the northwest quarter was subject to the taxes in judgment, that the judgment was against W. R. Kitchen alone and that only 3.75 acres in the northeast corner were sold to realize the judgment and costs, and purchased at that sale, no.t by the ancestor of plaintiffs, but by a firm known as Edward Martin & Co., the individual members of which are not shown.

Defendants prayed and were refused instructions, declaring as a matter of law that the trust deed from "William R. Kitchen and wife to Daly, trustee for Edward Martin & Co., and the trustee’s deed executed on foreclosure thereof, were void and inoperative as grants and insufficient to convey the legal title. To the refusal of these instructions, defendants excepted.

Upon the foregoing facts, was the judgment below right and should it be allowed to stand? We think not, and for the following reasons:

(1) Plaintiff's must recover, if at all, on a close application of the law and on their strict legal title, if any, because the title being tried out is a legal and not an equitable one, so far as plaintiffs are concerned, in this ease. What relief plaintiffs’ ancestor might have been entitled to had he gone into equity betimes and sought to reform the trust deed executed for the benefit of Edward Martin & Co. and the trustee’s deed following that to him, we need not inquire. Nor should we consider whether or not plaintiffs, as widow and heirs at law of Edward Martin, might have reformed these deeds and established their title in equity, on proof of a mistake in the scrivener and by bringing home notice to subsequent claimants. The general rule of law is, subject to exceptions not in this case, that plaintiff may not recover in a strictly legal action like ejectment on an equitable title (Ables v. Webb, 186 Mo. l. c. 247), although a defendant in ejectment, by virtue of our code of pleading, may plead an equitable defense (R. S. 1899, sec. 605), and thereby defeat an outstanding naked legal title (Shaffer v. Detie, 191 Mo. 377); so that, if the boot were on the other foot, and if respondents were in possession under claim of an equitable title, and if appellants were suing for possession in an ejectment and were confronted by an answer setting up an equitable title, accompanied by possession and improvements, an entirely different case would be presented.

(2) It stands conceded by counsel that tbe Statute of Limitations is no defense. This concession, we presume, is based on the theory that there had not been actual, visible, continuous and adverse possession in defendants, and those under whom they held, for more than ten years prior to the bringing of this suit. It results from this concession that we need not consider the fact of possession, as such, nor the fact that the land has been vastly improved by defendants by building habitations, outbuildings, clearing away the forest and fencing. If the decision were adverse to defendants, their remedy on that score must be sought as provided by the statute before a writ of ouster is enforced. [R. S. 1899, sec. 3072, et seq.]

(3) Appellants’ plea of estoppel must be-treated as by-matter, because it is not shown that Edward Martin was the purchaser at the execution sale for taxes. It is not shown that he procured the judgment to be rendered against W. ,R. Kitchen, or the land to be levied on as his. Nor is it shown that defendants or their grantors were misled by that sale or in anywise changed their position. If defendants or their grantors had purchased at that sale, and if Edward Martin had been the procuring cause of that judgment, execution levy and sale, a different question might arise. We cannot see' what that tax suit, judgment, execution, levy, sale and sheriff’s deed have to do, in the slightest degree, with this case. They are wholly res inter alios acta and no element of estoppel is presented to us.

(4) The very pith of the case lies in the question Avhether the trust- deed for the benefit of Edward Martin & Co., and the trustee’s deed to respondents’ ancestor, conveyed the legal title. The learned trial judge .held they did, Avhen supplemented by the oral proof and the other documentary evidence. He, therefore, permitted these deeds to be introduced in evidence and refused appellants’ instructions declaring them void and inoperative as grants, and in both of these rulings, in our opinion, he erred. Because: the ' description partly running through the deeds prior to the title vesting in its common source, W. R. Kitchen, locating the land “north of Castor river,” cannot he held to he so inseparably connected with the land itself, as a name or designation, as to be a part of the description— an earmark identifying the tract conveyed. It may he admitted, land may he conveyed by any description sufficient to identify it. It may he admitted, further, that parol proof is- admissible to identify the subject of a grant. [Marvin v. Elliott, 99 Mo. 616.] And that if ambiguity in a grant be created by extrinsic evidénce, it may he dissipated in the same way. But all these principles do not assist respondents in this case. Their evidence falls short of showing that the locus was known in the community by the description, “north of Castor river.” That description might as well suit any land north of Castor river in any section seven in Stoddard county. In this ease there are shown to he several sections seven in Stoddard county north of Castor river. And, bringing the matter closer home, there was at least one other section seven in a different township and range in that county through which Castor river actually flowed and which had a northwest quarter north of and adjacent to the said river.

In this condition of things, with no township or range mentioned in the deeds, we have presented to us a plain and typical case, not of a latent ambiguity which might or might not he dissipated by parol proof identifying the subject of the grant, hut of a patent ambiguity making the deeds absolutely void and as of no effect as the basis of a strict legal title. It will not he necessary to go into a consideration of the case law to any extent; for the case at bar is on all-fours, in this respect, with Mudd v. Dillon, 166 Mo. l. c. 120 (q. v. with cases there cited). See, also, other cases in point, cited in appellants’ brief.

This branch of the case may be disposed of with the suggestion that the supplementary parol proof and the documentary proof, other than the two deeds, tended to intensify and deepen the ambiguity, rather than to dissipate it. But in this case such proof was not admissible. ‘ ‘ Courts never permit parol evidence to be given, first to describe the land sold, and then to apply the description.” [Ferguson v. Staver, 33 Pa. St. 411.] In Bowers v. Andrews, 52 Miss. l. c. 606, referring to conveyances, it was said: “But none will deny that when the mere perusal of the instrument shows plainly that something more must be added before the reader can determine which of several things is meant by it, the rule is inflexible that no evidence can be admitted to supply the deficiency.” [See, also, Haughton v. Sartor, 71 Miss. 357.]

It results from these views that the cause should be reversed and remanded with directions to the court, nisi, to enter judgment in favor of defendants. It is, accordingly, so ordered.

All concur.


author: BRACE, P. J.

text:
    WILLIAM H. BUFFINGTON, Appellant, v. ELLA CARTY.
    Division One,
    March 30, 1906.
    1. DIVORCE: Void for Want of Jurisdiction: Court of Equity. A decree of divorce rendered by an Illinois court, if void because that court was without jurisdiction to render it, is a nullity, and the defendant therein does not need the assistance of a court of equity to obtain relief, for the decree does not affect his legal rights, after the death of the complaining wife, in property which during the marriage had been deeded to her as a separate estate for her sole use and benefit, and sold and conveyed by her deed alone after the divorce decree.

      2. -: No '•Equity shown. A husband in a divorce proceeding instituted in Illinois against him at a time when he was a resident of Missouri, in which he was personally served with process, and knew all about the proceeding from its beginning, and knowingly and willfully stood by the status which it established for seventeen years before bringing suit to avoid it, during which time a child was born to the wife, her property sold and by her conveyed to defendant, who paid a large sum therefor on the faith of the wife’s legal title of record, after which the wife died, is in no positon to ask the assistance of a court of equity to aid him in establishing a curtesy in the land, even if it could render him any, for there is no equity in his ease.
    Appeal from Buchanan Circuit Court. — Ron. A. M. Woodson, Judge.
    Affirmed.

      James W. Mytton, Charles C. Crow and William B. Morris for appellant.
    (1) Appellant went to Illinois for the sole purpose of obtaining the decree and was at no time a resident of that State. Under these facts the decree was void and of no effect whatever, and not voidable. Andrews v. Andrews, 38 U. S. Sup. Ct. Rep. 237; 2 Bishop on M. & D., sec. 43; 9 Am. and Eng. Ency. Law (2 Ed.), 742; State v. Flack, 54 Iowa 429; Smith v. Smith, 19 Neb. 706; Lebowitch v. Lebowitch, 19 Kan. 451; Yan Fossen v. State, 37 Oh. St. 317; Hoffman v. Hoffman, 46 N. Y. 30; Bell v. Bell, 21 U. S. Sup. Ct. Rep. 551. Jurisdiction may be inquired into. Mapton v. Leaton, 71 Mo. 362; Marx v. Fore, 51 Mo. 69. There is no presumption in favor of, but every presumption is against jurisdiction. Hoffman v. Losen, 24 Mo. App. 652; Com. v. Blood, 97 Mass. 538. The marital relation cannot be altered by estoppel. Burge v. Burge, 94 Mo. App. 15. (2) The only evidence in the entire record of appellant’s abandoning his wife, leaving the State, and failing to support her, is contained in the application for a continuance. All the witnesses in the ease who testified on the subject contradicted the statement of respondent in her affidavit, and the finding was therefore wholly unauthorized. Musick v. Dodson, 76 Mo. 628. (3) The pretended divorce was obtained by appellant’s wife March 6,1886. She was the owner of a separate equitable estate in the property and appellant was not entitled to the rents and profits or the possession thereof until the death of his wife which was shown by the terms of one of the instruments through which respondent claims the property, and in addition, appellant notified respondent before she purchased that he claimed an interest in the property by the curtesy and that the pretended divorce was void and notwithstanding all this respondent purchased the property and now claims that appellant has been guilty of laches. Appellant was out of possession, had no legal right to possession even if there had been no attempt to obtain a divorce until one month before this suit was instituted, and a court of equity will not convict a person of .laches when during all the time such person could not assert or obtain his rights either in a court of law or equity. Sherwood v. Baker, 105 Mo. 472; Westmeyer v. Gallenkamp, 154 Mo. 28; Graham v. Stafford, 171 Mo. 692; McNeely v. Oil Co., 44 S. E. 508; Littleton v. Patterson, 32 Mo. 365; Howell v. Jump, 140 Mo. 440; Herleman v. Hazlett, 55 Iowa 256; Rodgers on Domestic Relations, sec. 362. There is not one word of testimony that respondent was holding adversely to any person,, and by purchasing with notice it should be held that she was holding subject to appellant’s curtesy rights. The situation has not changed since she purchased with full notice, and therefore mere delay cannot amount to laches. Newman v. Newman, 152 Mo. 450; Condit v. Maxwell, 142 Mo. 277; Spaulding v. St. Joseph I. S. for Boys, 54 S. W. 205; Grosbach v. Brown, 40 N. W. 494; Borders v. Hodges, 39 N. W. 597; Riggs v. Polk, 21 S. W. 1013; Gordon v. Eans, 97 Mo. 602; Weir v. Lumber Co., 186 Mo. 388. At common law the right to the possession of the real estate belonging to the wife was in the husband except her separate equitable estate and for that reason the statute did not run against her and she could not be guilty of laches; here is a separate estate and the husband is barred from possession during her life and for the same reason the statute does not run against him and he cannot' be guilty of laches. Myer v. Witten, 89 Mo. 81. A resident of Missouri is not required to go to another State to litigate the question of the validity of a judgment, and may assert its invalidity at any time such judgment is used to affect his rights. So in this cause appellant was not required to notice the void decree until he was otherwise entitled to the possession of the property and cannot be convicted of laches in so acting. Marx v. Fore, 51 Mo. 73. At the time of the pretended conveyance by Mattie Buffington to respondent, even if it had been a general warranty deed, the instrument was absolutely void and it must be ruled that respondent purchased with knowledge of the law. The law in effect at the time rendered the instrument void absolutely and it could not become valid. Martin v. Colburn, 88 Mo. 229. The Martin case shows that there has at all times been a doubt about the validity of a married woman’s deed to her separate property, but now it is claimed in this case that not only is the deed valid to convey the estate of the wife, but also to convey the freehold interest of the husband. Husband has curtesy in the separate equitable estate of the wife. Kennedy v. Koopman, 166 Mo. 87; Soltan v. Soltan, 93 .Mo. 307; Trunmell y. Klubolt, 75 Mo. 255. Curtesy initiate is a freehold interest in real estate.. Doyle v. Rolwing, 165 Mo. 231; 8 Am. and Eng. Ency. Law (2 Ed.), 507. Under the present ruling of this court, appellant’s wife could convey her separate equitable estate but the conveyance was subject to the estate by curtesy of appellant as the deed to appellant’s wife in this case does not attempt to exclude curtesy, but merely postpones the enjoyment. Modern Law of Real Property (Tiffany), sec. 209; Kennedy v. Koopman, 166 Mo. 87; Johnson v. Fritz, 44 Pa. St. 449; Miller v. Quick, 158 Mo. 502; Wooward v. Woodward, 148 Mo. 247; Tiedeman on R. P., sec. 110; Hurleman v. Hazlett, 55 Iowa 256; Ayetsky v. Goery, 2 Brewster (Pa.) 302; Houck V. Ritter, 76 Pa. St. 280; Appeal of Clark, 79 Pa. St. 376; Appeal of Cooke, 132 Pa. St. 533'; Westerman v. Westerman, 3- Ohio Dec. 501; Kerr on Real Property, sec. 805; Rodgers on Domestic Relations., secs. 339-346. Under the statute law of this State, a married woman has the same power with reference to her real estate as her husband, namely, to convey alone subject to curtesy as the husband may convey his property subject to dower. In other words, no attempt has been made to abolish the estate by the curtesy. The same rule applies to the old equitable separate estate. The husband’s right to possession and control is suspended during coverture, but not his freehold interest which is in the nature of a remainder. Nor can the wife convey this remainder by her sole deed unless expressly ailthorized to do so by the instrument creating the estate or by the terms of the statute. Kennedy v. Koopman, 166 Mo. 87; Woodward v. Woodward, 148 Mo. 247. The court under the evidence correctly ruled that the child bom to Mattie Buffington March 6, 1886, was the legitimate issue of her marriage with appellant. Adger v. Ackmant, 115 Fed. 133; 1 Greenl. Ev., sec. 28; Philipps v. Allen, 2 Allen 453; Gaines v. Hennen, 65 U. S. 552; Morris v. Davis, 5 C. & J. 163; State v. Bennett, 75 N. C. 305; Goss v. Froman, 8 L. R. A. 106; Harp Co. v. Halt, 67 Pac. 848; Sergent v. Mfg. Co., 66 S. W. 1026; Hummenway v. Towner, 1 Allen 209; Smith v. Hunline, 51 N. E. 227.

      Eugene Silverman and G. F. Strop for respondent.
    (1) Appellant having waited seventeen years before questioning the validity of the decree of divorce rendered against Mm by the circuit court of Cook county, Illinois, and having waited until the death of the plaintiff in that suit, has been guilty of such laches that a court of equity will afford him no relief. The object and purpose of the present suit is not to restore the marital relation between the plaintiff, and his former wife and not to rectify fraud which is alleged to have been perpetrated on the laws of Illinois. The present suit has for its sole purpose the enforcement of alleged property rights, and therefore upon the showing made in this case the finding should have been as it was, for the defendant. Zoellner v. Zoellner, 46 Mich. 514; Nicholson v. Nicholson, 113 Ind. 132; Singer v. Singer, 41 Barb. 139; Nichols v. Nichols, 25 N. J. Eq. 60; Earle v. Earle, 91 Ind. 37; Nelson on Marriage and Divorce, p. 1019, sec. 1056; Marwin v. Foster, 61 Minn. 154; McNeil v. McNeil, 78 Fed. 834; Arthur v. Isreal, 15 Col. 147. (2) The deed by which Mattie Buffington acquired title to this property was from Mary Smith, and created a separate equitable estate in the former wife of plaintiff herein. No particular or technical words are required to create a separate estate. Any words which show the intention will suffice. In fact, appellant under the third point made in his brief uses the following language: “She was the owner of a separate equitable estate in the property.” Bank v. Taylor, 53 Mo. 595; Morrison v. Thistle, 67 Mo. 596; Bank v. Collins, 75 Mo. 280; Iiart v. Leete, 104 Mo. 315; Eichardson v. DeGiverville, 107 Mo. 422. And the intervention of a trustee is not necessary for the creation of a separate estate. Shafroth v. Ambs, 46 Mo. 114; Eichardson v. DeGiverville, supra. (3) A married woman may convey her equitable estate by deed without her husband joining therein. As to such property she is a feme sole. Whitesides v. Cannon, 23 Mo. 457; Turner v. Shaw, 96 Mo. 22; Small v. Field, 102 Mo. 120; Sprague v. Eooney, 104 Mo. 357; Wood v. Nice, 103 Mo. 338; Shaffer v. Kugler, 107 Mo. 65; Pitts v. Sheriff, 108 Mo. 116; Fairchild v. Cress-well, 109 Mo. 39; Owens v. Riggins, 133 Mo. 630; Ryland v. Banks, 151 Mo. 12; Cadematori v. Ganger, 160 Mo. 367; McFarland v. Heim, 127 Mo. 335. (4) While it is true that the husband may have an estate by the curtesy in the wife’s equitable separate estate, yet it is necessary in order that curtesy may attach that the wife die seized of the equitable estate. A conveyance by the wife of h.er separate estate defeats all curtesy on the part of the husband. Seizin in the wife at the time of her death is an essential prerequisite to curtesy in favor of the husband in the separate estate of his wife. Therefore, the deed from Mattie Trimble, formerly Mattie Buffington, conveyed to respondent the absolute title free from any interest of appellant herein. Lush’s Law of Husband and Wife, pp. 77 and 78; Schouler on Husband and Wife, p. 423; Chapman v. Price, 83 Ya. 395; Cooper v. McDonald, L. R. 7 Ch. Div. 300; Brown v. Alden, 14 B. Mon. (Ky.) 152; Neeley v. Lancaster, 47 Ark. 179; Pool v. Blakie, 53 111. 495; 4 Am. and Eng. Ency. Law. (1 Ed.), 967.
   BRACE, P. J.

— On the 27th of November, 1883, the plaintiff and Mattie B. Scott intermarried.

On the 28th of November, 1884, Mary D. Smith, who was the owner of lots 4 and 5 in block 23, in the original town, now city, of St. Joseph, Missouri, by warranty deed of that date, duly executed, acknowledged and recorded, for the consideration of seven thousand dollars, conveyed said real estate to the said Mattie B. Buffington, nee Scott, “to have and to hold the aforesaid real estate and lots as and for her own separate property for her own use and benefit, free from the control of her husband, and for her separate use and benefit.”

On the 8th of February, 1886, a child was born, alive, to the said Mattie B. Buffington.

On the 27th of March, 1886, the following decree of divorce was rendered by «the circuit court of Cook county, Illinois:

“Mattie B. Buffington vs. "William H. Buffington,
BILL.
“This day came again the said complainant by T. C. "Whitside, Esq., her solicitor, and it appearing to the court that said defendant has had due notice of the pendency of this suit by service of the summons herein on him personally according to the statute in such cases made and provided, that the default of said defendant was taken, and the complainant’s bill of complaint herein taken as confessed by said defendant.
“And the court having heard the testimony taken in open court in support of said bill of complaint (a certificate of which evidence is filed herein), and now being fully advised in the premises, doth find that the complainant is an actual resident of Cook county and has been a resident of the State of Illinois, as alleged in the bill, and that the defendant has been guilty of the acts of adultery with Nan Cohen and a woman by the name of Starr, as charged in the complainant’s bill of complaint.
“On motion of said solicitor for the complainant, it is ordered, adjudged and decreed and this court, by virtue of the power and authority therein vested, and the statute in such eases made and provided, doth order, adjudge and decree that the bonds of matrimony heretofore existing between the complainant, Mattie B. Buffington, and the defendant, "William H. Buffington, be and the same are hereby dissolved and the same are dissolved accordingly.”

Afterwards, the said Mattie B. Buffington intermarried with one Harry Trimble, and by her deed, dated December 1,1887, for the consideration of thirty-six thousand and two hundred dollars, conveyed said real estate to the defendant, who has been in continuous possession of the same ever since.

On the 15th of March, 1903, the said Mattie B. Trimble died, and on the 10th of April, 1903, this suit was instituted.

The petition is in two counts. The first count is in the nature of a bill in equity to set aside the decree of divorce, aforesaid, on the ground of want of jurisdiction in the circuit court of Cook county, Illinois, to render it, predicated upon the following substantive facts, alleged in this count of the petition, i. e., that by the statute of Illinois it is provided that “no person shall be entitled to a divorce in pursuance of the provisions of this act who has not resided in the State one whole year next before the filing of his or her bill or petition, unless the offense or injury complained of was committed within the State, or whilst one or both of the parties resided in this State.” That the said Mattie B. Buffington was not at the time of the institution of said suit, or the rendition of the decree therein, or ever, a resident of “Illinois, county of Cook, city of Chicago, but was a resident of Missouri,” and said William Buffington had not been guilty of adultery in the county of Cook, State of Illinois, as charged in the petition in said suit.

The second count is in ejectment in ordinary form, but at the close of the trial on the first count the plaintiff took a nonsuit without leave, as to that count, and no motion to set the same aside having been made or ruled upon in the trial court, that count was eliminated from the case; and the only questions that arise here on this appeal are upon the judgment on the first count in the petition.

The answer was a general denial and pleas of the Statute of Limitations, laches, and estoppel.

The evidence for the plaintiff tended to prove the allegations of the petition as to the residence of the said Mattie B. at the time of the divorce proceeding.

The judgment was for the defendant, and the plaintiff appeals.

The judgment is for the right party and ought to he affirmed. The sole ground upon which the plaintiff conies into a court of equity for relief is, that the decree of divorce rendered by the circuit court of Cook county, Illinois, is void because that court was without jurisdiction to render it. If that be so, then the decree is a .nullity, and he does not need the assistance of a court of equity. Such a decree could not affect his legal rights in the property in question and its nullity could be shown in any action at law to which it •might, be necessary for him to resort to assert those rights.

Moreover, the plaintiff was personally served with process in the divorce suit, knew all about it from the beginning, and knowingly and willfully stood by the status which it established for seventeen years before this suit was brought without seeking to avoid it, during which time a child was born to his former wife, her property was sold and by her'conveyed to the plaintiff, who paid a large sum of money therefor on the faith of her legal title of record, and, after marrying again, she died: "Whatever may be the merits or demerits of the divorce decree, the plaintiff is in no position to ask the assistance of a court of equity, even if it could render him any. There is no equity in his bill. The question as to the legal rights of the plaintiff in the real estate aforesaid, if any he has, is not before ns for determination on this appeal, and, hence, as to them we say nothing. He certainly has no equity, and the judgment of the circuit court will be affirmed.

All concur.


author: VALLIANT, J.

text:
    BURKHAM v. MANEWAL, Appellant.
    Division One,
    March 30, 1906.
    1. TAX SUIT: Sued By Initials. Where the record title gives the owner’s full Christian name, as Charles B. Burkham, notice by publication addressed to him by his initials only, thus, C. B. Burkham, is not sufficient to give the court jurisdiction over him in a suit for back and delinquent taxes, and a judgment by default against him, based on such process, is, as to him and his interest, void.
    2. -: -: Paying Taxes: Laches: Limitations. The fact that the record title owner, whose wild and unoccupied land was sold for taxes in 1879 and 1882, in pursuance to an order of publication directed to him by the initials of his Christian name, has paid no taxes on the land since 1867, whereas the purchaser at the tax sale and those claiming under him have for various years since paid taxes thereon, does not bar the owner to maintain a suit under the statute to quiet title, nor is he compelled to refund the taxes paid by defendant before he can maintain such suit. The lands being wild and in the possession of no one, he could not bring ejectment, nor could he, being out of possession, maintain suit to quiet title until after the enactment of the statute of 1897 (sec. 650, R. S. 1899); and if his suit was brought within five years after that statute was enacted, he is not barred by limitations, nor can he be charged with laches if the case is a suit in equity.
    3. -: -:Ejectment: Putting Tax Deed On Record: Sec. 9319. Section 9319, Revised Statutes 1899, declaring that any one putting a tax deed on record shall be deemed to have set up such a title to the land as will enable one claiming to own the same to maintain a suit for the possession thereof against the grantee in such tax deed or one claiming under him, was enacted in 1872, and was not intended to apply to a sheriff’s deed under a special execution in a suit in the circuit court to collect delinquent taxes, but to the sales of lands for taxes under the law as it then was. It did not and does not afford the true owner the right to maintain ejectment against the purchaser at the sheriff’s sale under a judgment of the circuit court, who is not in possession of wild lands, to have the void tax deed removed as a cloud upon his title.
    4. -: Paying Taxes: Lien: Subrogation. One who, unsolicited and with no interest of his own to protect and no obligation to do so, pays taxes on lands belonging to another, is a mere volunteer, and thereby acquires no right as against the the owner to have a lien declared on the land in his favor for the amount of taxes paid by him when sued by the owner to quiet the title.
    5. -: -: -: Statute of 1903. The statute of 1903 (Laws 1903, p. 254), declaring that no one shall maintain a suit at law or in equity to set aside a tax deed unless in his petition he offers to refund the taxes paid by defendant and those under whom he claims, has no application to a suit begun and in which judgment was rendered before the statute went into effect.
    Appeal from Madison Circuit Court. — Hon. Bobt. A. Anthony, Judge.
    Ai'kirmed.

      David M. Tesreau for appellant.
    (1) The land in litigation was subject and liable to taxation and being duly assessed and charged with the lien and the taxes, paid by those who held deeds (except respondent), the lien attached in favor of the State. Secs. 3, 4, 6 and 7, art. 10, Constitution; secs. 9298, 4259, R. S. 1899. (2) The taxes due and unpaid on real estate are a lien, and the property is liable for all taxes assessed, past, present and future, and the State has thn lien, and is authorized to enforce the same. No void tax sale can be set aside as was done by the judgment below until plaintiff in this action complies with the law as to the payment of taxes. Sees. 9297 and 9298, R. S. 1899; State ex rel. v. Angert, 127 Mo. 456; Laws 1903, p. 254; sec. 3150, R. S. 1899. (3) A court of equity will refuse relief where the party has slept upon his rights for an unreasonable length of time, and this, too, without regard to the Statute of Limitations. The non-payment of taxes from 1867 is an unreasonable length of time, and plaintiff should he barred from recovery. Lomis v. Railroad, 165 Mo. 495; Kroenung v. Goehri, 112 Mo. 648; Lemoine v. Dunklin Co., 2 U. S. O. C. App. 343; Naddo v. Bardon, 2 U. S. 0. 0. App. 335. (4) The doctrine of laches “prevents the resurrection of stale titles'and forbids the spying out from the records of ancient and abandoned rights. It requires of every owner that he take care of his property, and every claimant that he make known his claims.” Laches is a good bar to the enforcement of a stale claim and constitutes a good equitable defense, and supersedes the Statute of Limitations, to work out justice. This is not a case where a party is ignorant of his property rights. It follows under the pleadings and evidence that plaintiff has been so long guilty of laches that he cannot recover in this ease. Kline v. Vogel, 90 Mo. 239; Burgess v. Railroad, 99 Mo. 496; Lomis v. Railroad, 165 Mo. 495; Naddo v. Bardon, 2 U. S. C. C. App. 335. (5) The State through her officials has assessed and collected the taxes, and appellant and those through whom he claims (except respondent) have paid said taxes and removed the lien of the State, and is entitled to be' subrogated to the rights of the State, and before respondent can recover the land, he must, in equity and good conscience, tender in his petition and offer to refund to appellant all sums of money so expended in removing the lien of the State. Respondent’s failure to do so should result in the reversal of the judgment and dismissal of this suit. Laws 1903, p. 254.

      Jolm C. Brown for respondent.
    (1) The sheriff’s tax deed through which appellant claims is void because the owner, Charles S. Burkham, was notmade party to the tax suit upon which said sheriff’s deed is based, and it does not purport to convey his interest. Allen v. Ray, 96 Mo. 542; State ex rel. v. Sack, 79 Mo. 661; Evans v. Robberson, 92 Mo. 200; Graves v. Ewart, 99 Mo. 13. (2) The sheriff’s tax deed through which appellant claims the remainder of the land in controversy is also void because the only service in the tax proceedings upon which said deed is based was by publication in which respondent was designated only by the initials of his Christian name, to-wit, as ‘ ‘ C. B. ” Burkham, while his name appears in full on the deed records as Charles B. Burkham. Turner v. Gregory, 151 Mo. 100; Vincent v. Means, 184 Mo. 344; Spore v. Ozark Land Company, 186 Mo. '656; Gillingham v. Brown, 187 Mo. 181; Skelton v. Sackett, 91 Mo. 377. (3) Respondent having the legal title and appellant holding but a void title, the judgment is for the right party and should be affirmed. Peak v. Laughlin, 49 Mo. 163; Throckmorton v. Pence, 121 Mo. 60. (4) Section 3150, Revised Statutes 1899, making sheriff’s deeds for delinquent taxes prima-facie evidence of title, and the act of 1903 (Laws 1903, p. 254), requiring parties who contest the validity of such sheriff’s deeds to refund the taxes paid or extinguished by. the holders of such deeds, which laws are cited and relied upon by appellant, are both unconstitutional and void. Constitution, art. 4, sec. 53; art. 2, sec. 15; art. 2, sec. 30; Cooley on Constitutional Limitations (6 Ed.), 481-583; Leete v. Bank, 115 Mo. 184; Powell v. Gray, 95 Mo. 13; State ex rel. v. Tolle, 71 Mo. 650; State ex rel. v. Ashbrook, 154 Mo. 380; Childers v. Schantz, 120 Mo. 305; Vastine v. Improvement Co., 135 Mo. 145. (5) Mere payment of taxes by appellant could not divest respondent of his title. Any person can pay taxes on real estate and obtain receipt therefor, whether he claims same or not. There is no law whereby the owner can prevent other people from paying taxes on his land. R. S. 1899, sec. 9232. (6) Defendant’s sheriff’s tax deeds being void, no action could have been maintained by plaintiff to set them aside as clouds on his .title until the enactment of section 650, Revised Statutes 1899, in the year 1897. The land was unoccupied. Peak v. Laughlin, 49 Mo. 163; Mason v. Black, 87 Mo. 329; Graves v. Ewart, 99 Mo. 13. (7) Limitations and laches will run in favor of claimants holding voidable legal title, and also those who are in actual, hostile, adverse, possession, but will not aid the holder of a void title. When the owner of land has placed his deed on record, mere silence on his part cannot work an estoppel. Bales v. Perry, 51 Mo. 453; Throckmorton v. Pence, 121 Mo. 60; Mylar v. Hughes, 60 Mo. 105; Dunn v. Miller, 96 Mo. 338; Mason v. Crowder, 85 Mo. 526; Dunbar v. Green, 25 S. C. R. (U. S.) 621. (8) A tax title holder has no lien for taxes extinguished unless such lien is given by express statute, and there was no statute giving appellant a lien for the taxes he paid. Carter v. Phillips, 49 Mo. App. 319; Rowe v. Current River Land & Cattle Company, 99 Mo. App. 158; Petring v. Current River Land & Cattle Company, 95 S. W. 933; Croskery v. Bush, 116 Mich. 288; Cooley on Taxation (2 Ed.), secs. 531, 467, and 468; State v. Casteel, 110 Ind. 174; Harper v. Rowe, 53 Cal. 233; McCormack v. Edwards, 69 Tex. 106; Burke v. Brown, 148 Mo. 317; Blackwell on Tax Titles, secs. 410 and 411; Black on Tax Titles (2 Ed.), 409 and 413. (9) Even if there had been a law which declared that the holder of a tax title who extinguished taxes should thereby be subrogated to the rights of the State, such subrogatedrights and liens were barred by the Statute of Limitations duly pleaded in this case, as to all taxes paid, except the sum of $34.28 which, from the agreed statement, it appears was paid during the five years next preceding the institution of this suit. R. S. 1899, sec. 9313; State ex rel. v. Edwards, 136 Mo. 360; Bushong v. Taylor, 82 Mo. 660.
   VALLIANT, J.

— This is a statutory proceeding-under section 650, Revised Statutes 1899, to quiet title to certain real estate in Madison county. It is wild land and has never been occupied. The plaintiff’s title comes in a direct line from the United States through patents and subsequent deeds duly recorded. The defendant’s title comes through sheriff’s sales under special executions on judgments for delinquent taxes.

The land lies in sections 5, 6 and 7, township 31, range 7, east.

John Collins purchased from the United States that part of the land in question that lies in sections 5 and 6, and he and his wife by deed dated January 23, 1860, recorded March 8, 1860, sold and conveyed to plaintiff, Charles B. Burkham.

So the title stood on the record on July 15', 1882, when a suit was filed in the circuit court of the county in the name of the State at the relation of the collector of revenue against John Collins and John Burkham, defendants, to enforce against the land a lien for back and delinquent taxes to the amount of $78.82 alleged to be due on the land. There was no service of summons, but there was an order of publication directed to the defendants named in that suit; there was no appearance of defendants. Judgment decreeing the lien for taxes as prayed was rendered by default and special execution awarded. Under that execution the land was exposed to public sale and struck off to John W. Dunaway, to whom the sheriff executed a deed which was duly recorded.- Whatever title passed to Dunaway at that sale has since passed and is now held by the defendant Manewal in this suit.

So much of the land in suit as lies in section 7 was purchased from the United States by George Hake.' By deed dated January 31, 1860, recorded March 7, 1860, George Hake and wife conveyed it to Charles B. Burkham, the plaintiff. So the title to that part of the land stood on the record on January 17, 1878, when a suit was filed in the circuit court in the name of the State at the relation of the county collector, plaintiff, against C. B. Burkham, defendant, to subject the land to a lien for taxes for the years 1868, 1872, 1873 and 1874, amounting to $20.87 alleged to be due on the land. There was no service of summons in that case, but there was an order of publication in which the defendant therein was described as C. B. Burkham. There was no appearance entered and judgment by default was rendered declaring the lien established and awarding special execution thereon. Under that execution the land was exposed to public sale and it was struck off to certain parties for the sum of five dollars, to whom the sheriff executed a deed dated March 29,1879, which was afterwards, to-wit, September 11,1880, duly recorded. Whatever title the purchasers at that sale acquired has passed by subsequent deeds and is now held by the defendant in this suit.

The plaintiff has paid no taxes on the land, since 1867; the defendant since his purchase has paid taxes on the land lying in sections 5 and 6 to the amount of $35.35, and on that lying in section 7 to the amount of $20.74. Plaintiff makes no offer to refund the taxes paid by defendant or by those under whom he claims.

The decree of the court was to the effect that the land belonged to the plaintiff and that defendant had no interest in it. Prom that judgment comes this appeal.

I. Appellant does not very seriously contend that any title passed by the sheriff’s sales under the special executions in the back-tax suits. There is really no room for such a contention. When those tax suits were instituted the lands stood on the record in the name of Charles B. Burkham. There was therefore no excuse for not describing him by his full Christian name as the record owner of the land. In the suit aimed to affect the land in sections 5 and 6 this plaintiff was not mentioned at all either by name or initial, and in the suit involving the land in section 7; his Christian name was indicated by initials only. The law on the subject of notice given to the owner in such case by publication, when the initials of his Christian name only are given, has been heretofore thoroughly discussed by this court, and the law as we have declared it will he found by reference to the following eases: Skelton v. Sackett, 91 Mo. 377; Elting v. Gould, 96 Mo. 541; Turner v. Gregory, 151 Mo. 100; Vincent v. Means, 184 Mo. 327, l. c. 344; Spore v. Ozark L. Co., 186 Mo. 656; Gillingham v. Brown, 187 Mo. 181.

The doctrine of those cases is that, where, as in this case, the record title to the land gives the owner’s full Christian name, notice by publication addressed to him by the initials of that name only is not sufficient to give the court jurisdiction over him and therefore a judgment by default on such notice, as to him and his interest, is void. If the owner is known only by the name given in the title record and the name is there given by initials only, as it was in the case of Elting v. Gould, above cited, that fact makes an exception. The decision in Mosely v. Reily, 126 Mo. 124, is not in conflict with this rule of law. In that case both parties were claiming title from the same man, one by a deed from him in which he signed only the initials of his Christian name, and the other through a sheriff’s deed under a tax judgment obtained by default on notice through an order of publication describing him by the same initials ; the court held that the party who claimed under the personal deed signed with the initials only could not collaterally attack the validity of the sheriff’s deed on the ground that it was based on an order of publication giving the same initials.

We hold that the judgments in the tax suits in the case at bar were void.

II. But appellant does seriously insist that respondent has slept too long on his rights, that he has paid no taxes on the land since 1867, and now should not be allowed to have the tax deeds cancelled without tendering to defendant the money paid out by him for taxes.

This is wild land, it has never been in the actual occupation of any one. Plaintiff for that reason could not have sued defendant or any one through whom defendant claims in ejectment, and, being out of actual possession himself, the plaintiff could not, until the enactment of the statute under which he now sues, have maintained a suit in equity to remove the cloud from his title. [Graves v. Ewart, 99 Mo. 13, l. c. 18.]

It was not until 1897 that the statute which is now section 650, Revised Statutes 1899, was passed, which authorized one holding the legal title to land, but out of possession, to maintain a suit to quiet his title.

Section 9319, Revised Statutes 1899, declares that any one putting a tax deed on record shall be deemed to have set up such a title to the land as will enable one claiming to own the same to maintain a suit for the possession thereof against the grantee in such deed or one claiming under him. That statute was first enacted in 1872, and has been in our books ever since. [Laws 1871 -2, p. 130.] It was intended to affect rights growing out of sales of lands for taxes under the law as it then was. At the date of that act the system of collecting delinquent taxes by suits in the circuit court as we now have it had not been adopted; the present system was adopted in 1877. [Laws 1877, p. 386.] It has been decided by this court in Childers v. Schantz, 120 Mo. 305, and Vastine v. Laclede L. & I. Co., 135 Mo. 145, that section 9319 does not apply to a sheriff’s deed under special execution to enforce a judgment in a back tax suit.

The plaintiff could not have brought his suit before the act of 1897 gave him the right to do so, and since he has brought it within five years of that time he is not barred by the Statutes of Limitations, and is not guilty of such laches as would bar him in equity, even if this, were a suit in equity.

III. Appellant thinks that as he has paid taxes on this land he ought to be subrogated to the rights of the State and have a lien declared for the amount of his ■outlays. At the time appellant paid these taxes there was no law in this State giving him a lien on the land for any such purpose. [Rowe v. Current River L. & C. Co., 99 Mo. App. 158.] There was no such relation between him and the plaintiff as would suggest the idea that he was paying the taxes at the request or for the benefit of plaintiff. The contrary appears; he was aiming to help himself only. One who, unsolicited, and with no interest of his own to protect and no obligation to do so, pays the taxes due on the lands of another is a mere volunteer, and acquires thereby no right as against the owner.

Appellant relies on the act of 1903 (Laws 1903, p. 254), which declares that no one shall maintain a suit at law or in equity to set aside a tax deed unless in his petition he offers to refund the taxes paid by the defendant and those under whom he claims. But that act was not passed until after this suit was begun and it had not gone into effect when the judgment appealed from was rendered; it, therefore, has no influence on the rights of the parties in this case.

There is no error in the record. The judgment is affirmed.

All concur.


text:
    WHITING et al. v. BIG RIVER LEAD COMPANY, Appellant.
    Division One,
    March 30, 1906.
    APPEAL: Abstract: Complete Transcript. A filing in the Supreme Court of a complete transcript of the record does not dispense with the necessity for filing a correct abstract thereof. Both the statute and the rules of the court require an abstract, even when the case is brought up by a complete transcript; and if no abstract is filed, the appeal will be dismissed.

      Appeal from St. Francois Circuit Court. — Eon. Robt. A. Anthony, Judge.
    Appeal dismissed.

      Merrifield W. Eujf for appellant.

      Warren D. Isenberg and John■ G. Broivn for respondents.
   BRACE, P. J.

— The appeal in this case is brought here on a complete transcript, but the appellant has failed to file an abstract thereof as required by statute (R. S. 1899, sec. 813), and rules 12 and 13 of this court. The only paper filed herein by the appellant is endorsed, “Statement, Brief and Argument of Appellant.” It does not purport to and does not contain an abstract of the record upon which the same ought to be based as required by the statute and rules aforesaid. It is a mistake to suppose that filing a complete transcript of the record in this court dispenses with the necessity of filing an abstract thereof. [McLaughlin v. Fischer, 188 Mo. 546; Whitehead v. Railroad, 176 Mo. 475; Clements v. Turner, 162 Mo. 466.] The mere opinion of counsel as to what the record is, expressed in the statement of appellant’s case, cannot be taken for an abstract. Counsel cannot thus evade the duty of making a correct abstract of the transcript, to the verity of which their professional honor is pledged, or devolve that duty upon the court. Hence, this appeal will be dismissed.

All concur.