text:
    HARRIET McQUITTY v. R. L. WILHITE and I. V. EVANS, Administrators of Estate of W. R. WILHITE, Appellants.
    Division One,
    March 31, 1909.
    1. PLEADING: No Cause of Action: Raised on Appeal. The point that a petition states no cause of action can be raised for the first time in the appellate court, and if the point is well taken a judgment thereon will be reversed.
    2. -: --: Contract to Convey Land: Suit Against Administrators. A petition in a suit for the specific performance of a parol contract to convey land made by decedent with plaintiff, brought against his administrators alone in-their representative character, does not state a cause of action. The title to the lands is not in the administrators, and whatever control they have over them is contingent upon orders of the probate court. Nor is the defense of the title for the administrator, but for the heir or devisee.
    3. -: -: -: -: Statute. Under Sec. 173, R. S. 1899, providing that a vendee, having a contract in writing from the decedent for the conveyance of real estate, may present a petition to the probate court setting forth the facts and asking that the administrator he required to specifically perform by making a deed; and under Sec. 175, R. S. 1899, providing that in such suit notice must be served upon the administrator and also on the heirs and devisees, the suit against the administrator cannot be maintained unless the contract is in writing. The statute does not apply to parol agreements to convey real estate. If the suit is for the specific performance of a parol agreement to convey land, the suit should he brought against the heirs or devisees, and if brought against the administrator alone in his representative character it cannot be maintained.
    4. -: -: -: -: 'Power to Sell to Pay Debts: Defense of Title. The bare naked contingent right to sell real estate to pay debts does not give the administrator such an interest in the real estate as to authorize an action against him for the specific performance of decedent’s oral agreement to convey to plaintiff certain lands. The defense of the title to real' estate owned by decedent in his lifetime belongs solely to the heirs or devisee, except where by statute the general rule of the common law has been changed.
    5. -: -: -: -: -: No Debts Charged. Even if the statute which gives to administrators a naked contingent power to sell lands to pay decedent’s debts were broad enough to authorize them to defend the title, a petition in a suit for the specific performance of decedent’s oral contract to convey real estate, which contains no allegation that there are debts and that the sale of the land in question is necessary to pay debts, does not state a cause of action.
    Appeal from Boone Circuit Court.— Hon. Alex. H. Waller, Judge.
    Reversed.

      W. M. Williams and E. W. Hinton for appellants.
    The heirs of W. R. Wilhite deceased were necessary parties to this action to obtain a conveyance of the land, and hence the plaintiffs petition against the administrators alone wholly fails to state a case for specific performance. Schoulter v. Bockwinkles ’ Admr., 19 Mo. 647; Moore v. Murrah, 40 Ala. 573; Duncan v. Wieldiffe, 5 111. 452; Craig v. Johnson, 3 J. J. Marsh. (Ky.) 572; Hale v. Darter, 5 Humphrey (Tenn.) 79'; Woodward v. McConnaughey, 106 Fed. 758; Rogers v. Wolfe, 104 Mo. 1. The heirs of a deceased vendor are necessary parties defendant to a bill by the vendee to obtain a conveyance of the land, because the title thereto is in them by descent, and they cannot be deprived of it without an opportunity to contest the essential question as to whether it is bound by the alleged contract of their ancestor. It is true that Sec. 173, R. S. 1899, gives a statutory proceeding against the administrator for the specific enforcement of written contracts by deceased for the conveyances of land, in which, by force of the statute, the heir might be bound by representation. But this statute cannot aid the plaintiff in this case because it has no application to verbal contracts to dispose of land by will. Schoulter v. Bockwinkles’ Admr., 19 Mo. 647. The heir owns the land, and in all cases not covered by the statute, the general rule applies, that as to land, the administrator neither represents the deceased nor the heir. Nor is this merely a case of defect of parties which might be waived in the absence of a special demurrer. It involves a total failure to state a cause of action for specific performance, because the real parties interested are not before the court at all, and therefore it must be governed by the equity rule that the court cannot render a decree in the absence of the parties who are to be bound by it. Siemers v. Kleeburg, 56 Mo. 201.

      Stephens & Collier for respondents.
    Under no circumstances could respondent have brought suit otherwise than against the administrators. The suit as to both counts in the petition is based upon the personal contract made by the deceased, W. R. Wilhite, accepted and fully performed on the part of the respondent, as the evidence fully discloses. The heirs are not necessary parties and their rights are not prejudiced where a positive agreement and ■contract has been made and the enforcement of which is fully provided for. Appellants raise the point for the first time that there has been a defect by reason •of non-joinder of the heirs with the administrators of the deceased. “Where a defect of parties is apparent on the face of the petition, objection must be made by demurrer or it will be waived.” Dodson v. Lomax, 113 Mo. 555. “It is too late to urge as grounds of error in this court that the petition is defective by reason of non-joinder of parties. Defendant, to avail himself of such defect, should resort to demurrer and failing ta do so, he waives the objection.” Kerr v. Bell, 44 Mo. 120. “The want of necessary parties must be specially raised by some form of pleading in Missouri, either by demurrer or answer.” Turner v. Lord, 92 Mo. 113; Leueke v. Treadway, 45 Mo. App. 507; Pike v. Martindale, 91 Mo. 268. “It cannot be raised in arrest.” Reugger v. Lindenberger, 53 Mo. 364; Butler v. Lawson, 72 Mo. 227; Walker v. Deaver, 79 Mo. 664; Cook v. Tull, 111 Mo. 283;.Gimbel v. Pignerr, 62 Mo. 240; Bank v. Gilpin, 105 Mo. 17.
   GRAVES, J.

-By the first count of the petition the plaintiff avers that at the request of the deceased, W. R. Wilhite, she went to his home and that after remaining there for six months: .

“The said W. R. Wilhite proposed, promised and agreed that if plaintiff would remain with the deceased, W. R. Wilhite, and render to said AY. R. Wilhite household services in the way of keeping house, doing washing, ironing, and perform any and all such other services incident thereto so long as the said deceased, W. R. Wilhite, should live, that he, the said deceased, would at, or prior to his death, make ample provision for plaintiff the rest of her days, and the further promise that she should be compensated and remembered far in excess of what she could make by working for wages; that plaintiff then and there relying upon said promise and agreement, accepted the same and in good faith entered upon the discharge of her duties, and so continued to remain with and serve said deceased W. R. Wilhite,- from said date, 1865, up to the time of his death, October . . . 1905, being a period of forty years; that at all times plaintiff remained dutiful and faithful toward the deceased, W. R. Wilhite, in the capacity of housekeeper and attended to all the duties incident thereto according to the directions of the said W. R. Wilhite, and at odd times worked upon the farm and made a hand for the said deceased.
“That for said services, so rendered as aforesaid, plaintiff has received' no compensation, and that so far as plaintiff knows the said deceased, W. R. Wilhite, has utterly failed to make such provision as promised and agreed upon; but that plaintiff has in every particular carried out and complied with the agreement stated as aforesaid up to and after the death of the said W. R. Wilhite.”

Then follows the averment that reasonable compensation would be $4,800, and judgment is asked in that amount.

By the second count it is averred that in addition to the-promise mentioned in the first count, the said W. R. Wilhite “promised and agreed to give and devise to plaintiff the following described tract of land, to-wit:” [Description omitted.] “In consideration that plaintiff remain with and perform all services incident to housekeeping and such other services in the way of attending to things outside, such as raising chickens, turkeys, etc., up to his death; that plaintiff, relying upon said promise, in good faith entered upon and continued in the service of the said deceased, W. R. Wilhite, up to his death, and at all times rendered the services required of the plaintiff, and in accordance with the wishes of the said deceased.” And by the prayer to said second count, the court is asked to specifically enforce this contract.

Defendants are the administrators of W. R. Wilbite, deceased. Answer to the first count was general denial, plea of the five-year Statute of Limitations as to all services rendered more than five years prior to death of W. E. Wilhite, and a plea of payment. Answer to second count was a general denial. Eeply general denial.

Trial before the court and judgment went for the defendants as to the first count, and for the plaintiff on the second count. Plaintiff abided the judgment of the trial court, but defendants after unsuccessful motion for new trial appealed to this court.

At the outset the defendants confront us with the proposition that no valid cause of action is stated against them in the second count of the petition and therefore the judgment below must be reversed. The petition was not challenged below by demurrer, nor was there by answer any suggestion of a want of necessary parties. Defendants stand here on the broad proposition that no cause of action was stated at all as against them, and that such can be raised for the first time in this court.

It has long been held that if a petition states no cause of action, such question can be raised here for ■the first time, and a judgment thereon should be reversed.. [Davis v. Jacksonville Southeastern Line, 126 Mo. 69; Hoffman v. McCracken, 168 Mo. l. c. 343.]

We think defendants’ contention is well founded. Administrators, the personal representatives of the deceased, have no interest in the lands. They take no title to the lands. Under an order of the probate court, Eevised Statutes 1899, section 130, they can under certain conditions rent the lands, and by section 131, Eevised Statutes 1899, by order of court repairs to fences and buildings may be made by the ordinary administrator. By section 146, Eevised Statutes 1899, such administrator may on order of the probate court sell lands to pay debts. These sections cover all the rights an administrator has in the real estate, and none of them rise to the dignity of title in real estate. They are all mere rights contingent upon • the order of the probate court.

In Hale v. Darter, 5 Humph. (Tenn.) l. c. 80, it is said: “The heirs, in such a case as the present, are the legal owners of the very estate sought to be conveyed. It does not belong to the personal representative, either legally or beneficially, in trust or otherwise. He has nothing to do with the real estate.”

In 18 Cyc., pages 297-8-9, the law is thus stated: “Neither an executor nor an administrator has, as such, any inherent interest in, title to, or control over the realty of his decedent. The testator may, however, by his will, give to his executor such authority and control over real estate as he sees proper; and in some jurisdictions the statutes give to the executor or administrator a certain control over the land of the decedent, usually either for the purpose of preserving the same from waste during the course of administration, effecting a division and distribution among those entitled, or of subjecting the same to the payment of the decedent’s debts in case the personal assets prove insufficient for this purpose. The authority of an executor in this respect is, however, strictly limited by the terms of the will, while a statutory grant to the personal representative of authority or control over the real estate of his decedent, being in derogation of the common law, must be strictly construed and the rights of the representative confined to those which are clearly given to him.”

So also it is said in 11 Am. and Eng. Ency. Law (2 Ed.), 838: “At common law the real property of a decedent could not be subjected to his simple contract debts, but it descended directly to his heirs who became liable for the debts by specialty or matters of record to the value of the inheritance, and in case of a deficiency of personal property the creditors by simple contract lost their debts. This rule of the common law was changed by statute at an early day, and the real estate of a decedent, in case of a deficiency of personal property, now descends to the heirs of the deceased owner, subject to the payment of his debts, for which purpose it may be sold in an appropriate proceeding.”

Nor are we without authority in this State. In Aubuchon v. Lory, 23 Mo. l. c. 99, this court said: “The real estate of a deceased person descends, upon his death, to his heirs, or passes to the devisees under his will. By the common law, the personal representative, whether executor or administrator, takes no interest in it, and our statute gives him nothing but the naked power to sell for the payment of debts, or to make short leases, under the direction of the county court. The right to the possession, therefore, belongs to the heirs or devisees, and they only are the proper parties to sue for any injury to it. It is upon this principle that executors and administrators, as such, are not allowed to maintain actions of ejectment.” In this case, the plaintiff, as executrix, was suing for trespass committed since the decease of the testator.

^ Later in Chambers’ Admr. v. Wright’s Heirs, 40 Mo. l. c. 485, Holmes, J., said: “The real estate descended to the heirs or passed to the devisees; the personal representative takes no interest in the lands descended, but a naked power to sell for the payment of debts, and the possession as well as the defense of the title belongs to the heirs and devisees. The administrator had nothing to do with it. [Aubuchon v. Lory, 23 Mo. 99.]”

From this holding it would appear that the defense of the title to realty is for the heirs or devisee and not the administrator.

In the case of Thorp, Adm’r., v. Miller, 137 Mo. l. c. 239, this court, through Sherwood, J., said: “The lands of a decedent descend to Ms heirs (or devisees if so the will reads), and the possession of the land and .defense of the title and all of ,its incidents belong to the heirs or devisees, and the personal representative has nothing at all to do with it,- no concern in the matter. [Aubuchon v. Lory, 23 Mo. 99; Chambers’ Adm’r. v. Wright’s Heirs, 40 Mo. 482; 2 Woerner, Adm’n., secs. 338, 463; 1 Ibid., sec. 276.] And the equity of redemption of a mortgagor in like manner descends to his heirs. An administrator can do certain things in regard to the real estate of his decedent, as, for example, he may, under the provisions of section 129, Revised Statutes 1889, rent the land of the deceased, where the probate court shall so order of record, in order to the payment of debts, and shall also order that the administrator take possession of such land and rent the same, in which event, that section authorizes the administrator to maintain an action for the recovery of such land. But that section in explicit terms forbids an administrator to rent or control such real estate until such order be made. Outside of the order of the probate court under permission and power expressly conferred by the statute, and outside of the duties which the statute prescribes, an administrator is an entire stranger to the real estate of the decedent. Thus he may purchase land of the estate sold under judgment of foreclosure rendered by the circuit court, and take title thereto, just as any other stranger would. [Dillinger v. Kelley, 84 Mo. 561.] The statute, under which and from which an administrator exclusively derives his powers, nowhere authorizes a probate court to order an administrator to intervene as plaintiff in an action of this kind; and if it did, there is no such order pleaded in the petition. From the foregoing considerations, it necessarily follows that the heirs of the decedent were the only parties who could maintain the present equitable proceeding.” This was a suit in equity by Thorp, Admr. of Cornelius Van Camp, deceased, the purpose of which was to set aside, for fraud and collusion, a sheriff’s deed. The facts were that Yan Camp owned eighty acres of land in Cass county upon which there was a school mortgage for $1,000 and accrued interest. The equity was sold at the alleged fraudulent sale. If, as in this case, the mere naked right to sell the real estate of deceased, under order of the probate court, would confer no right in the administrator to sue for the protection of the estate and the landed interest thereof, then by no reasoning can we see how the shoe can be shifted and placed upon the other foot, in such manner as to say that such mere naked right to sell conferred any interest in the lands so as to authorize the administrator to defend an action involving the title.

In the more recent case of Hall v. Bank, 145 Mo. l. c. 424, we further said: “At the death of a person owning land the title descends to his heirs or devisees, and his personal representatives take no interest therein except a naked power to sell it for the payment of his debts. The possession of the land as well as the defense of the title belongs to the heirs or devisees and to no other person. The administrator has nothing whatever to do with it. [Chambers’ Admr. v. Wright’s Heirs, 40 Mo. 482.] He cannot maintain ejectment for the possession of the land, nor can he maintain a suit to remove a cloud from the title thereto in the absence of an order of the probate court as before stated.”

In the State of Iowa there was a statute as in this State which authorized a suit against an executor or administrator to enforce a contract to convey real estate, made by the decedent in his lifetime. There was. also another section by which it was provided that it should not be necessary to make any other person a party to the suit, except the administrator or executor, but the court in its discretion might direct other parties to be made parties, and the heirs and devisees could on motion at any time be made parties. The Iowa court, Judd v. Mosely, 30 Iowa l. c. 427, in discussing these statutes, in which case the heirs alone had been made parties, said: “But for this statutory provision, the action could not be brought against him; he represents only the personal property of the decedent. The real estate descends to the heir, and in the present case it is the heir who refuses to convey. ’ ’

Our section 173, Revised Statutes 1899, is somewhat similar to the Iowa section first above mentioned. It provides that the vendee, having a contract in writing from the decedent for the conveyance of real estate, may present a petition to the probate court setting forth the facts and asking that the administrator be required to specifically perform by making a deed. By section 175 of the same statute notice must be served upon .the administrator and also on the heirs and devisees. By section 179', it is provided that the action may be broug-ht in the first instance in the circuit court, or if first brought in the probate court, the executor or administrator, widow, or any heir or devisee may upon objection filed have it removed to the circuit court. It will be observed that the contract referred to in this section must be one in writing, which is not the case at bar. This is the only case wherein by statute the administrator is required to be made a party, and our court has' held that this statute does not apply where the contract to convey is not in writing. [Schulter’s Admr. v. Bockwinkle’s Admr., 19 Mo. 648.]

In the case last cited above, this court, speaking of this statute, said: “The special statutory proceeding for the specific execution of agreements against the administrators of vendors, is only allowed where the agreements are in writing. [Sec. 36, p. '88, R. S. 1845.] This case does not come within that statute. ’

In the ease at bar the defendants were sued in their representative capacity and not otherwise. We do not think under the authorities that the bare naked contingent right to sell real estate to pay debts gives them such an interest in the real estate as to authorize an action against them for the specific performance of an oral agreement to convey real estate. In other words the defense of the title to real estate belongs solely to the heir or devisee, except where by statute the general rule of the common law has been changed.

Under no circumstances does this petition state a cause of action, for even if it be admitted, which we do not admit, that by reason of the naked power to sell to pay debts, the administrators might have some interest in the realty and could defend the title, yet to make a good petition there should have been an allegation that there were debts and that the land in question was necessary to pay debts, and further that the probate court had made an order of sale, because the right and power of an administrator is dependent solely upon such an order.

We do not place much stress upon this phase of the case, for in our judgment, except where otherwise provided by statute, the sole right to defend the title is in the heir or devisee and not in the administrator. It follows from these views that the second count of the petition stated no case or cause of action against these defendants, and this judgment should be and is reversed.

All concur.


source: Caselaw Access Project

author: LAMM, P. J.

license: Public Domain

text:
    JOSEPH R. HUBBARD, ELLEN L. JEFFRIES and HORACE B. JEFFRIES, Appellants, v. LUTHER C. SLAVENS and SALLIE SLAVENS.
    Division One,
    March 31, 1909.
    1. APPEAL: Equitable Defense: No Evidence Preserved. Where plaintiffs have omitted from the record all the evidence heard at the trial, they will be held on appeal to admit that the respondents put in evidence below to establish every jot and tittle of their whole defense — legal and equitable.
    2. - — : -: -: Argument of Merits. In such case any argument of the merits on the facts is afield and inappropriate.
    3. EJECTMENT: Equitable Defense: Unsettling Ancient Rights. Courts turn a cold eye and a face of stone to an attempt to judicially unsettle land titles fortified by the healing influence of time, on which owners have rested securely for a half century. Where the father of the plaintiff remaindermen received the money for the land in question nearly fifty years before the suit is brought, it will be intolerable to elevated justice to permit the remaindermen (his children) to recover it except on the sternest principles of plain law.
    4. MOTION TO STRIKE OUT: Waiver: Demurrer in Effect. Where plaintiff files a motion to strike out defendant’s answer, by pleading over on the merits he waives his right to insist that the court erred in overruling his motion. Nor is such waiver obviated by the fact that the motion in some of its phases covers the same ground as a general demurrer. It is confusing orderly procedure to treat a demurrer and a motion to strike out as interchangeable and to be used indifferently. They fulfill a different office — the demurrer seeking a judgment on an issue at law; the motion, a mere order.
    5. TRIAL BY JURY: Equity or Law Case: No Evidence Preserved. Where the evidence is not preserved in the bill of exceptions, the court will consider a ruling of the trial court denying to plaintiffs a right to a trial by jury; for the trial court having construed the answer as putting the cause in chancery, the question presented is one of jurisdiction, that is, whether the court had the right to proceed to a trial without a jury. In such case it is not clear how the evidence would throw any light on the question.
    6. -: -: Ejectment: Equitable Defenses. If the answer to plaintiff’s ejectment pleads such substantive facts as entitle defendants to affirmative equitable relief, the cause is in chancery, and a jury should be denied plaintiff.
    7. -:-: -: -: Estoppel In Pals. Though it be admitted that matter constituting equitable estoppel in pais is a good defense at law in an ejectment suit, it would be a non sequitur to say the defendant may not use the same matter of estoppel in pais as grounds for affirmative relief in equity, where alone he can get such relief.
    8. -: -: -: -: -Binding on Heirs: Knowledge. An estoppel binding an ancestor is binding on his heirs and devisees. So that if the father of plaintiffs, through whom they claim as remaindermen, was estopped to assert title to the land, they likewise are estopped, whether or not they had knowledge of the matters which would have estopped him.
    9. PRACTICE: Demurrer: Answering. By answering over plaintiffs waived their demurrer to defendants’ cross petition on every proposition except that the cross petition did not state a cause of action.
    10. EJECTMENT: Limitations: Thirty Years: Duty to Pay Taxes. Where the testator was estopped to lay claim to the land, for that he had received the money for which he sold it, there was nothing upon which the life estate given by the will to the wife could operate, and therefore it is beside the question to decide whether the duty was upon the life tenant and not upon the remainderman to pay the taxes, or whether the thirty-year Statute of Limitations pleaded by defendant is or is not a good defense to the remaindermen’s suit in ejectment.
    11. PLEADING: Exhibits: Speaking Demurrer. A demurrer'strikes squarely at the face of the petition and nowhere else. Mere exhibits constitute no part of the petition for the purposes of a demurrer.
    12. -: Equitable Defense: Limitations: Demurrer. A demurrer to defendants’ answer in ejectment, setting up matters which constitute an affirmative equitable defense, will not be sustained on the ground that the pleaded matter is barred by the Statute of Limitations, if to sustain it the whole equitable defense would be struck down for every purpose, whether as a mere bar or as a cross action.
    Appeal from Ray Circuit Court. — Hon. J. W. Alexander, Judge.
    Aefiemedi

      English & English for appellants.
    (1) The demurrer to the second defense and the motion to strike the same out should have been sustained for the reason that the thirty-year Statute of Limitations does not apply. That statute was adopted in 1889. Hunt v. Searcy, 167 Mo. 184; Hall v. French, 165 Mo. 430; Howell v. Jump,, 140 Mo. 441; Shumate v. Snyder, 140 Mo. 77; Pryor v. "Winter, 83 Pa. St. 202. (2) The power of attorney was insufficient to convey after-acquired title. It was recorded; therefore, King knew its contents. .Greve v. Coffin, 14 Minn. 264; Allis v. Goldsmith, 22 Minn. 123; Penford v. Waiver, 96 Mich. 139; Weare v. Williams, 85 la. 253; Union Trust Co. v. Meous, 201 Pa. St. 374. (3) Defendants allege matters they claim as an estoppel. These allegations are matters in pais, and there is no allegation in the petition that these defendants were in any way affected by those matters, or relied thereon, and therefore such matters do not constitute a defense to plaintiffs’ petition. (a) There is no allegation in the answer anywhere that any one of these acts pleaded as an estoppel were ever called to the attention of defendants at any time, or that they changed their position on account of anything plaintiffs’ ancestors or they have done, and therefore this in no manner authorized these defendants to plead or prove them. There can be no estoppel unless the party who alleges it relied upon the representation, was induced to act by it, and thus relying and induced, did take some action. Rosencranz v. Swofford Bros. D. G. Co., 175 Mo. 537; Burke v. Adams, 80 Mo. 504; Blodgett v. Perry, 97 Mo. 263; Rogers v. Marsh, 73 Mo. 64; Eitelgeorge v. Mutual House Bldg. Assn., 69 Mo. 57; Barnes v. Perry, 61 Mo. 449 ; 11 Am. and Eng. Ency. Law (2 Ed.), 439, and notes; 16 Cyc. 744 and notes; Ralls v. Ritter, 180 111. 161; Pleasant Hill Light & P. Co. v. Quinton, 109 S. W. 1061. (b) A party cannot be divested of his title by estoppel. Foster v. Hobson, 107 N. W. 1101. Nor do estates pass by estoppel. Turner v. Baker, 64 Mo. 218. (c) All matters alleged in the answer except those of the notes and mortgages are matters not in writing. Where an estoppel in pais has heen invoked against claim of title to real estate, the doctrine is opposed to the letter of the Statute of Frauds, and would greatly impair the security of titles to real estate if they were allowed. Miller v. Graves, 38 111. 457; Patterson v. Huchcach, 3 Cal. 535; Martin v. Railroad, 83 Me. 100; Trenton Banking Co. v. Duncan, 86 N. Y. 221; Bolling v. Peters-burg, 3 Rand 563. (d) An essential to estoppel by misrepresentation or concealment is that the party pleading it should have relied upon the conduct of the other, and been induced by it to act or refrain from acting. Blodgett v. Perry, 97 Mo. 263; Bales v. Perry, 51 Mo. 449; Wright v. McP'ike, 70 Mo. 175; Acton v. Dooley, 74 Mo. 63; State Bank v. Frame, 112 Mo. 502; Smith v. Roach, 59 Mo. App. 295. (4) The mortgage from Hubbard to Ranson was a void instrument. Sec. 15, ch. 32, p. 35, R. S. 1855. It was unsealed and failed to describe the land in dispute. (5) The Statute of Limitations could not apply to plaintiffs’ cause of action for the reason that the entry of Hite under the void foreclosure sale broke the continuity of possession of King within ten years from the time of King’s alleged entry, and while plaintiffs had no right to sue, Hite’s entry being adverse to King, (a) To tack possession to a preceding adverse possession must be by and solely under contract or conveyance valid on its face. 1 Cyc. 1007, 1008, note 2; Simpson v. Dowing, 23 Wend. 216; Chouquette v. Barada, 23 Mo. 331; Shaw v. Nicholay, 30 Mo. 99; Crispen v. Hannavan, 50 Mo. 536. (b) The deeds from Hite to Gates and from Gates to Slavens being void, not describing the property, were not color of title and not sufficient to tack Hite’s prior possession. Each entry was a new entry. The pleading, therefore, shows the Statute of Limitations did not apply to plaintiffs. (6) The motion to strike out should have been sustained. This pleading violates Sec. 592, R. S. 1899, in not being plain and concise. Mallinckrodt v. Nemnich, 169 Mo. 388; Sidway v. Land Co., 162 Mo. 374; Goldman v. Gilliland, 10 Sawyer 636; Pomeroy’s Code Remedies, sec. 517; Chitty on Pleading, 245. (7) The third defense is legal, not equitable, and plaintiffs could not be deprived of their right to trial by jury thereby. The court erred in overruling plaintiffs’ demand for jury trial. U. S. Const., Bill of Rights; Const, of Mo., Bill of Rights, 17; R. S. 1899, sec. 691. (a) In ejectment suits, right of trial by jury has always existed, and equitable defenses are triable at law in ejectment suits. O’Day v. Conn, 131 Mo. 321; Pomeroy’s Equity Jurisprudence, sec. 802. The prayer for such other and further relief has no application to the facts stated. State ex rel. v. Evans, 176 Mo. 310, 317; Jennings v. Moon, 135 Ind. 173. (b) Plaintiff cannot sue in equity when his claim constitutes a defense to an action at law. 17 Ency. PI. and Pr., 277 and 285; 6 Am. and Eng. Ency. Law, 153. (c) It is not necessary to go into a court of equity for the purpose of obtaining an equitable estoppel, when the case is not otherwise of equitable jurisdiction. 11 Am. and Eng. Ency. Law, 421, note 2; Bevard v. German Savings Institute, 44 Mo. 445; Concord v. Norton,-16 Fed. 477; Drexel v. Biring, 16 Fed. 552; Shilito Co. v. McChesn-ey, 45 Fed. 478. (d) Where the execution of a paper is one of the main issues being tried, it is error to take the case from the jury. If the contract set out is in the case, it is one of the main issues and is specifically denied. Grady v. Ins. Co., 60 Mo. 116; North Pa. Coal Co. v. Snowden, 42 Pa. St. 488; Donahue v. Meister, 88 Cal. 121; Hannah v. Kranz, 167 111. 121; Fountaine v. Hudson, 93 Mo. 62; Sneathen v. Sneathen, 104 Mo. 201; Whiting v. Stevens, 97 111. 182; State v. Harney, 168 Mo. 167; Tinsley v. Kemrey, 170 Mo. 310; State v. Bockstruck, 136 Mo. 335; Edwardson v. Barnbord, 50 Mo. 81; Grand Lodge v. Elwoner, 26 Mo. App. 108.

      L. G. Slavens and L. H. Waters for respondents.
    (1) In determining tbe sufficiency of a pleading tbe court cannot look beyond it to exhibits filed with it. Hoyt v. Oliver, 59 Mo. 189; Hickory Co. v. Fugate, 143 Mo. 79. The exhibits were no part of respondent’s answer. State ex rel. v. Crumb, 157 Mo. 547; Pomeroy v. Fullerton, 113 Mo. 453. (2) By filing a reply after plaintiffs’ demurrer and motion to strike out were overruled they waived every objection made to defendants ’ answer except that it did not state facts sufficient to constitute a cause of action or a defense. Leise v. Meyer, 143 Mo. 556; Hudson v. Cahoon, 193 Mo. 557. (3) The petition alleges that Hubbard died in July, 1861. It is alleged in the second defense that defendants and those under whom they claim have been in the adverse possession of the premises in question for a period of 48 years, next before the commencement» of this suit, and states a case within the purview of Sec. 4268, R. S. 1899. Collins v. Pease, 146 Mo. 135; De Hatre v. Edmonds, 200 Mo. 267; Crain v. Peterman, 200 Mo. 299. (4) Defendants in' their third defense state a cause of action on which they are entitled to equitable relief. The facts alleged in defendants’ third defense constitute an equitable estoppel and entitled them to a decree vesting the title to the premises in question in them.' Martin v. Railroad, 93 Me. 100; 2 Pom., Eq. Juris., sec. 803. Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity from asserting rights which might perhaps have otherwise existed either of property, contract or of remedy, as against another who has in good faith relied upon such conduct and has been led to change his position for the worse. Martin v. Railroad, supra; Wilkins v. Gibson, 113 Ga. 38; Galbraith v. Lunsford, 87 Term. 89'; 2 Pom. Eq. Juris., sec. 810; Hill v. Black-welder, 113 111. 283; Thompson v. Borg (Minn.), 95 N. W. 896; Kirk v. Hamilton, 102 U. S. 69. At the time Summers, as attorney in fact for Hubbard and wife, made the deed of September 22, 1857, for the premises in question to King, under the power dated in September, 1856, King knew that Summers, under that power of attorney, mentioned in this defense, had joined with Hubbard as attorney in fact for Mrs. Hubbard in the execution of the said mortgage on said premises to Ranson, and knew that Hubbard, before said deed was executed, had directed Summers to make said deed to King as attorney in fact for himself and wife, under the same power of attorney, and King was thereby led to- believe and did believe that said Summers had authority to make said deed, and paid the greater part of the purchase price to Plubbard in his life time and the balance to his estate, then Hubbard in his life time was estopped from denying that Summers had authority to make said deed and his heirs, the plaintiffs, are bound by his acts and conducts. Mechem on Agency,'secs. 84, 707; Story on Agency, sec. 127; 2 Smith Ld. Cases, pp. 744-764, 765; Johnson v. Hurley, 115 Mo. 520; Oak Grove Soc. v. Murray, 145 Mo. 622; Hubbard v. Glass "Works, 188 Mo. 43; Smith v. Shelley, 12 Wall. 358; Barnett v. Smart, 158 Mo. 181; Murray v. Mayo, 157 Mo. 248; Herman on Estoppel, secs. 1081, 1088; Jones v. Bliss, 48 Minn. 307; 2 Pom., Eq. Juris., sec. 821. The appropriation of the doctrines of equity by the common law will not estop the right to seek redress by an application in due form to equity. If estopped by his acts and conduct, a court of equity will decree a conveyance or vest the title. Hubbard v. Glass Works, 188 Mo. 43; Herman on Estoppel, secs. 744, 835; 2 Smith Ld. Case, pp. 734-740; Kirk v. Hamilton, 102 U. S. 69; Bigelow on Estoppel, 557. (5) If, upon the facts stated in this defense, defendants are entitled to equitable relief, plaintiffs were not entitled to a jury. O’Day v. Conn, 131 Mo. 325; Shaffer v. Detie, 191 Mo. 388; Martin v. Tnrnbangh, 153 Mo. 172. (6) The Statute of Limitation has no application to an equitable defense even where affirmative relief is asked. On that grouM the demurrer to this defense was properly overruled. Butler v. Carpenter, 163 Mo. 604. (7) The courts regard such suits as this with disfavor. Williams v. Mitchell, 112 Mo. 313; Osborne v. Welden, 146 Mo. 185; Hubbard v. Glass Works, 188 Mo. 35. “Such suits, if successful,” in the language of Judge Scott, “would make the dead sin in their g’raves.” McLannahan v. West, 100 Mo. 324. (8) Equitable estoppel in pais originated in equity, and was there enforceable for all purposes. It gradually became enforceable also in courts of law as'a bar, but no further, since courts of law can give no affirmative relief. Opposing counsel claims that because our third equitable defense might be used as a defense at law, sufficient to bar plaintiffs from claiming possession in this ejectment suit, we cannot therefore take it into equity by asking affirmative relief. That is not the law. Olreichs v. May, 15 Wall. 43.
   LAMM, P. J.

Plaintiffs Joseph E. and Ellen L., as the only children of Chester Hubbard, deceased, and as remaindermen under his will, uniting with Ellen’s husband, Horace B., sue defendants (husband and wife) in ejectment in the Jackson Circuit Court on October 26,1905. Defendants answer by way of a general denial, by way of the thirty-year Statute of Limitations, and by way of an equitable defense upon which they ask affirmative, equitable relief.

Prom a decree for defendants, plaintiffs appeal.

The bill of exceptions, containing no evidence, contents itself, first, with showing plaintiffs’ motion to strike out parts of the equitable defense, the adverse ruling of the court thereon, and an exception saved; second, plaintiffs ’ motion to submit the cause to a jury, the adverse ruling of the court and an exception,- and, third, plaintiffs ’ motions for a new trial and in arrest, the adverse rulings thereon and exceptions.

The abstract of the record proper shows the petition, the answer and copies of exhibits A. B. C. and D, a demurrer to the second and third defenses, the order of the court overruling the demurrer, the order of the court overruling the motion to strike out, the reply, the decree, the affidavit for an appeal, the order allowing one and the record entry showing that the bill of exceptions was settled, allowed, signed and filed.

Points made seek some elaboration of the pleadings, viz:

The petition charged that Chester Hubbard died in 1861, seized of certain real estate in Kansas City, Missouri (describing it); that he left a will probated in Iowa at the county of his domicile (also in Jackson county, Missouri, in 1865); that by such will he devised to Mary R., his wife, all his real estate with remainder over to plaintiffs, his children, share and share alike; that Mary R. died in January, 1900; and that her life estate fell in and said remaindermen became entitled to possession. Ouster is laid as of February 1st, 1900.

Attending to the answer, it denies all allegations not expressly admitted true, admits possession, avers that the defendant, Luther C., has been husband of the defendant, Sadie, for forty-five years, avers that they are now, and they and those under whom they claim have been, in open, notorious and continuous adverse possession under a claim and color of title for forty-eight years; that the title emanated from the government seventy years ago; that neither the said Chester in his lifetime nor the plaintiffs since his death have been in possession nor paid any taxes for said forty-eight years; nor have plaintiffs brought any action to recover said premises under Revised Statutes 1899, sec. 4268; wherefore, they pray judgment that the title of plaintiffs he adjudged barred and that the title be vested by the court in the defendant Sallie.

By the third defense it is alleged plaintiffs are the children and only heirs at law of Chester Hubbard who died July 21, 1861; that by will he left the real estate belonging to him to his wife for life and to his children in remainder; that plaintiffs claim the real •estate in controversy as devisees or heirs, but that Chester was not seized of the premises at the time of his death and, therefore, plaintiffs took nothing under the will either as remaindermen or heirs.

To this end, it sets forth elaborately in many pages of print, facts constituting an equitable defense and upon which affirmative relief is predicated. For instance (summarizing): It alleges that on the 16th day of September, 1856, Chester and Mary R. Hubbard executed a power of attorney to one Summers authorizing him to collect all debts due them and to lease and sell and convey any real estate belonging to them in Jackson county, Missouri; and to execute and deliver deeds to purchasers, which said power of attorney was put of record one month later and continued in full force and effect until Chester Hubbard’s death; that shortly after its execution Hubbard moved to Keokuk, Iowa, where he resided until his death in 1861.

{Note: It will aid in understanding the case to say, what will appear presently, that the land sued for was acquired by Hubbard after said power of attorney was executed and that such fact creates the main basis of plaintiffs’ claim. )

The answer goes on to allege that Hubbard' on March 12, 1857, bought from one Ranson a large tract of land for $9,000 (the premises sued for being a part of such large tract); that on that date Ranson conveyed said tract to Hubbard, who, having paid $1,000 theretofore to bind his bargain, on that day executed to Ranson Ms three promissory notes for the balance of the purchase money and to secure them executed to Ranson a mortgage on the premises; that Mary R., being absent from the State of Missouri at that time, he (Hubbard) executed the mortgage in his own proper person and caused said Summers to join with him in executing it as the attorney in fact of Mary, under said power, which mortgage was at once put of record; that Hubbard and Summers by their joint act in executing said mortgage construed the power of attorney as authorizing Summers to deal with and convey the premises under said power and that thereby and by its record said Summers was held out to the world by Hubbard as having such authority; that afterwards on the 21st day of September, 1857, said Hubbard, then being in Kansas City, entered into a written agreement to sell and convey the real estate purchased from said Ranson to one King for the sum of $13,500, who agreed to buy at that figure; that the terms of sale evidenced by said contract were a cash payment of $1,500, a certain sum at thirty days, a certain sum ($3,375) on March 12, 1858, a like sum on March 12th, 1859, and like sum on March 12, 1860 — all said deferred payments to be secured on the premises by mortgage; that said contract was put in the hands of one Bouton, a notary public; that on the next morning Hubbard, Summers, King and Bouton met at the latter’s office and King in pursuance of his contract paid to Hubbard in person the said cash payment, who receipted_on the back of the contract for the same and employed Bouton to draft the deed and mortgage; that Plubbard then and there stated he was unable to stay for the preparation and exchange of said instruments but was compelled to go home that afternoon; thereupon he instructed said Summers to execute and deliver the deed to King and instructed King to deliver said notes and mortgage to Summers, and directed the latter to record the mortgage, and went his way; that in pursuance of those instructions said Summers, as such an attorney in fact of Chester and Mary, did execute to King a warranty deed for said premises and said King made said notes for the deferred payments and made such mortgage as security and delivered them to Summers; that Bouton then delivered said contract to Summers; that the deed to King and the mortgage to Hubbard were recorded' shortly, to-wit, on October 14, 1857; that on the same day the deed from Ranson to Hubbard was put of record; that the deed from Hubbard to King was made and executed on behalf of Chester and Mary R. by said Summers by the express direction and instruction of said Chester, who then and there held him out as having authority to make that deed under his said power of attorney; that King at that time knew that Summers had acted as attorney in fact for Mary R. under Jhe same power of attorney by joining in the execution and acknowledgment of said mortgage from Hubbard to Ranson and had notice of the recording of said mortgage and of the fact that Hubbard held Summers put as having full power and authority and that they so construed said power; that said King, having such notice and knowing that Hubbard had instructed Summers as attorney in fact to execute the deed to him (King) he was led to believe that Summers had such power and acting on that belief he paid said cash payment to Hubbard in person and as part of the transaction accepted Hubbard’s deed made by Summers as attorney in fact, under said directions and instructions of Hubbard, and made and delivered to Summers, for Hubbard, the said notes and mortgage.

It is next averred that King’s notes to Hubbard for the deferred payments were partly paid by King to Hubbard in his lifetime and that the residue was paid to William Holmes, administrator of Hubbard’s estate, after his death; that said Holmes was such administrator in Jackson county, and after collecting said residue of purchase money, he paid out and distributed such proceeds as part of Hubbard’s estate and released said mortgage; that Hubbard took possession under Ranson’s deed and delivered possession to King on the date of King’s deed; that King beld actual, open, notorious and continuous adverse possession from that date under claim and color of title until in 1865 be turned over possession to one Hite, wbo bought tbe premises.

Tbe answer next averred that Hubbard in bis lifetime paid said Ranson payments, except tbe last one; that tbe last Ranson note was transferred to one Scruggs; that in March, 1862, in Jackson county, Missouri, Scruggs commenced a suit to foreclose tbe mortgage, making King, Ranson and tbe unknown heirs and representatives of Chester Hubbard parties defendant ; that Ranson was duly served and* service was attempted on tbe other defendants by publication; that in November, 1862, tbe suit was dismissed as to tbe unknown heirs and representatives of Hubbard, and thereupon such proceedings were bad that a decree was rendered finding tbe amount due on tbe last Ranson note and foreclosing tbe equity of redemption of tbe remaining defendants, Ranson and King, and decreeing a sale; that a sale was made and said Hite became tbe purchaser and received a marshal’s deed, which deed assumed and intended to convey tbe land; that King turned over possession to Hite, and, there being doubts about tbe validity of tbe sale, said King executed a deed to tbe premises shortly thereafter; and that after King’s deed to Hite tbe latter paid Holmes, administrator of Hubbard, tbe last note due from King to Hubbard and said administrator discharged tbe lien of tbe Hubbard mortgage, as said.

Tbe answer then alleges that Hite beld adverse, open and continuous possession under bis deeds, until in April, 1867, and then conveyed a ten-acre tract of the land to one Gates wbo went into possession and held adversely until September 10th of that year, making lasting improvements, and on the 10th of September, 1867, Gates sold and conveyed the north half of his ten acres to defendant, Sallie Slavens, who recorded her deed; that Sallie and her co-defendant, Luther 0., entered into possession under their deed and have ever since held open, notorious and continuous adverse possession, and have made lasting and valuable improvements; that said Sallie is the real and equitable owner of the real estate mentioned in the petition, the same being a part of that purchased from Gates; that Chester Hubbard lived four years after the deed made by Summers as attorney in fact to King as aforesaid, knew said deed had been executed and recorded, knew King was in possession of the premises under it and claimed them adverse to Hubbard, knew King was receiving the rents and paying the taxes, knew that he, Hubbard, had a mortgage on said premises, and so knowing during all that time failed to repudiate said deed to King, failed to disclaim any interest in the mortgage and notes given to him by King, failed to make any claim to said premises or the possession thereof, or to pay taxes or demand rent, failed to return any of the purchase money paid him by King, but, on the contrary, he ratified and acquiesced in the execution of said deed to King so made by said Summers as his attorney in fact.

The answer further, pleads certain defects and ambiguities in certain deeds in defendants’ chain of title and alleges that in certain instances deeds of correction were made (describing them) and in other instances alleges that narrations were made which cured ambiguities and uncertainties.

Based on the foregoing allegations, the answer charges that the conduct, acts, words, conveyances, etc., of Chester Hubbard in his lifetime and those of the said Summers as his attorney in fact, as aforesaid, estopped said Hubbard in his lifetime from denying that he had conveyed said premises to King as recited in the mortgage and deed, from denying that King became the owner of the premises. It further charges that said acts, conduct and words of Hubbard (again specifying them) not only estopped him from denying that the premises passed to King by the deed to him but estopped him from denying that Summers had authority under the power of attorney and directions and instructions aforesaid to execute King’s deed and estopped him in his lifetime from claiming any interest in or title to the premises. That plaintiffs as heirs or devisees are bound by the conduct, act and doings of their ancestor as set forth and may not deny that defendant,; Sallie Slavens, is the owner of the premises and are barred and estopped from any interest in said land.

It seems there was an original answer to which Exhibits A, B, C, and D were attached. Without otherwise describing such exhibits or pleading the contents thereof, the trial answer then alleges that said exhibits so attached to the original answer are made a part of the defense of this answer.

It prays that the court adjudge and decree that effect be given to said estoppels and that the title to the premises be vested in defendant, Sallie, and winds up with a prayer for general relief.

The exhibits referred to in the answer need not be set forth.

Plaintiff’s demurrer to the second and third defenses was as follows: The defense of the thirty-year statute of repose was assailed because it “does not state facts sufficient to constitute a defense to plaintiffs’ petition.” The equitable defense was demurred to because it, first, “does not state facts sufficient to constitute a defense to the plaintiffs’ cause of action;” second, “it does not state facts sufficient to constitute a cross petition or cause of action in favor of said defendants;” third, because it “shows on its face that if any canse of action ever existed in favor of said defendants, as stated and claimed in said defense, the same is barred by limitation and lapse of time.” i

The reply denied some and admitted other averments of the answer and then charged that it was not the duty of plaintiffs as remaindermen to pay the taxes prior to the year 1900 when the life estate of Mary R. fell in. It alleges that it was the duty of “defendants, as life tenants of said estate, to pay the taxes on said estate during the continuance of the life estate.” It admits the averments of the answer relating to the will of Chester Hubbard, admits Ranson’s deed to Hubbard, that Hubbard entered into possession under it, admits Hite’s possession under the marshal’s deed, and admits Grates ’s possession, but avers it was not under color of title, and then proceeds to deny, seriatim, the averments of the answer.

The decree follows:

“And now, on this day come the parties herein in person and by their respective attorneys, and this cause coming on to be heard upon the pleadings and evidence in the case and the court having heard the evidence and arguments of counsel, and having considered the same, and being fully advised concerning all and singular the matters herein, doth find:
“First. The court finds the issues made by the petition of plaintiff, and the general denial of the defendants’ answer, for the defendants, and against the plaintiffs.
“Second. The court finds the issues raised by the second count of said defendants’ answer for. the defendants and against said plaintiffs.
“Third. The court finds the issues raised by the third count in said defendants’ answer, and the equitable defense therein, in favor of said defendants and against said plaintiffs.
“Fourth. It is therefore ordered, adjudged and decreed by the court that tbe said plaintiffs take nothing by their action.
“It is further ordered, adjudged and decreed that the plaintiffs ’ title in and to the land in controversy in this cause, to-wit, beginning 634% feet north of the southwest corner of the east half of the west half of the southeast quarter of section thirty-three in township fifty, north, in range thirty-three, west, in Jackson county, in the State of Missouri, and running thence west 182% feet, and thence east 235 feet, thence south 182%- feet, thence west 235 feet to the place of beginning, in Kansas City, Missouri, be and the same is divested out of said plaintiffs and the title to the same be, and hereby is, vested in the said defendant, Sallie Slavens, and confirmed in her, and that said defendants have and recover of said plaintiffs tbe costs of this suit, and that they have execution therefor.”

I. On such a record some preliminary observations may aid in reckoning our bearing at the outset. They will, serve in the nature of a judicial calculation of our latitude and longitude.

(a) In the first place, appellants have, ex industria, kept back every shred of the evidence. That fact is of obstinate and controlling importance; for from such omission it follows invincibly that they are held to admit on appeal that respondents put in competent and sufficient proof below to establish every jot and tittle of their whole defense. That is, to borrow an old-fashioned chimney-corner figure, homely yet speaking, their noses are judicially held to the grindstone of the concession that each and every averment of the answer was proved to the satisfaction of the trial court, and this admission runs like a marking cord through the whole warp and woof of the case.

In order that the full significance of this large admission should stand out in bold relief, we have heretofore set forth at length the substance of the averments of the answer at expense of brevity.

(b) In the second place (as a corollary), it becomes quite vain for appellants’ learned counsel to argue the merits of the case on tbe facts, as he apparently now and then does in his briefs and as was done orally at our bar. The facts are not only a sealed book, but are settled against him.

(c) In the third place, we take the opportunity of saying that it is a matter of tranquil and entire satisfaction to us that the trial court found itself dealing with facts warranting a decree in favor of defendants. To judicially unsettle land titles, fortified by the healing influence of time, on which owners have rested securely for a half century, is a matter of such gravity and anxiety that this court has consistently, during its whole life, turned a cold eye and a face of stone on such efforts (however learnedly and astutely presented, as here), saying so in words with the bark on. For example, in McClanahan v. West, 100 Mo. l. c. 324, it was said: “And it is to be distinctly understood that this court views with disfavor proceedings like the present, instituted nearly the life of a generation after the transaction on which they are supposed to be based occurred, and which, if successful, to paraphrase the strong language of Judge Scott on one occasion, would ‘make the dead sin in their graves.’ ”

To this end it is trite learning that the rules' of evidence are relaxed in support of ancient and dim transactions — this from the very necessity of things. Not that the adage, Necessity knows no law, is applied, but that courts administer the law to attain just results and to that end use the everyday wisdom, the good sense, of mankind in establishing old transactions.

In aid of a title attacked by these very plaintiffs on grounds somewhat similar to those in this case, Fox, J. [Hubbard et al. v. Kansas City Stained Glass Works & Sign Co. et al., 188 Mo. l. c. 35] quoted approvingly from Agnew, J., in Richards v. Elwell, 48 Pa. St. l. c. 364, 367, language in point and not amiss to repeat:

“If the rule,” says Agnew, J., with animation, “which requires the proof to bring the parties face to face and to hear them make the bargain, or repeat it, and to state all its. terms with precision and satisfaction is not to he relaxed after the lapse of forty years, when shall it be? . . . There is a time when the rules of evidence must be relaxed. We cannot summon witnesses from the grave, rake memory from its ashes, or give freshness and vigor to the dull aud torpid brain.”

. Chester Hubbard and his estate had the money for the land in question fifty years gone. For his children to now recover the land itself under such circumstances is- a proposition' so intolerable to elevated justice that no court would give ear to it unless constrained thereto by the sternest principles of plain law. As will presently appear, it is good ground for congratulation that no such principles are known to us.

(d) In the fourth place, we are forbidden by express statute to consider on appeal any exceptions not passed on below. [R. S. 1899, sec. 864.] Therefore, while in this case appellants ’ brief takes a wide range and many propositions are discussed therein, yet, on referring to the bill of exceptions, we find the statutable chart of our channel well marked out. The exceptions saved in the bill cover two propositions, viz., first, error in overruling the motion to strike out; second, error in overruling the motion to submit the cause to a jury. True, an exception was saved to overruling the motions in arrest and for a new trial, but those motions strike at matters not here for review under the skeleton bill of exceptions, save and except the two enumerated. To the above errors should he added a third, viz.: the ruling of the court on the demurrer. Let us attend to them seriatim.

II. Of the motion to strike out.

When a party as an intermediate step in the evolution of a lawsuit files a motion to strike out all or a part of his adversary’s petition or answer, and the court passes an order overruling such motion, the option is presented to the movent to stand on his motion and thus prove his faith by his works, or to plead over to the merits. When, not standing on the motion, he pleads over to the merits and on such joinder of issue of fact pitches his battle in a legal forum, and takes his chance of winning or losing on such joinder (and loses), he may not thereafter “tread back in his tracks and trip up his adversary’s heels” on the ruling on the motion. He is held to have waived the motion. His exception is a dead coal and no subsequent blowing, however deft and persuasive, will breathe a spark of fire into it, under the rules of appellate practice in this jurisdiction. [White v. Railroad, 202 Mo. l. c. 561, et seq., and authorities cited; Hudson v. Cahoon, 193 Mo. l. c. 557.]

Appellants’ counsel frankly concedes, in his brief in reply, so much; except that he argues (as we grasp it) that the motion in some of its phases covers the same ground as a general demurrer and hence should be judged of as a demurrer. But the office of a demurrer is one thing, the office of a motion to strike out is another — the one seeks a judgment on an issue at law, the other seeks a mere order. It is confusing to orderly procedure to treat them as interchangeable and to be used indifferently, the one for the other. [Ewing v. Vernon County, 216 Mo. 681.]

We hold that when appellants joined issue on the facts, by pleading over to the merits by reply to the answer, they waived their motion to strike out.

III. Of the motion to submit the cause to a jury.

(a) Before the trial began the court construed the answer as putting the cause in chancery, to be heard by a chancellor. Thereupon plaintiffs submitted a written demand in the form of a motion for a jury and saved an exception to the order overruling that motion. This assignment of error presents the main bone of contention.

It has already been pointed out that the evidence is not preserved in the bill of exceptions. As a general rule, in an equity case, the trial court cannot be compelled to allow bills of exceptions that do not preserve the evidence on the merits. [State ex rel. Guinan v. Jarrott, Judge, 183 Mo. 204.] But presently after the Jarrott case, in an equity suit a change of venue was applied for below and disallowed. Thereupon it was contended that appellant could not have his exception to that ruling considered on appeal without bringing up all the evidence. But we refused to so hold, putting our ruling on the ground that the question presented was one of jurisdiction; that is, whether the court had the right to proceed with any trial whatever. On such question we held the evidence on the merits was immaterial, and, therefore, the bill of exceptions need not contain a transcript of it. [State ex rel. Priddy v. Gibson, Judge, 184 Mo. 490.] That case was followed in State ex rel. Priddy v. Gibson, Judge, in 187 Mo. l. c. 547-8. Since the Jarrott case, supra, there has been a line of cases holding that we could not review an equity case on the merits unless all the evidence was preserved and brought here. [Guinan v. Donnell, 201 Mo. 173; Patterson v. Patterson, 200 Mo. 335; Pitts v. Pitts, 201 Mo. 358.]

Considering the grounds upon which the Guinan, the Patterson and the Pitts cases stand we are inclined to hold that, on principle, they do not control the case at bar, but that the Priddy cases do. Allowing some deference to the trial chancellor, equity cases are tried de novo (in a sense) in an appellate court on the merits, hence there are manifest reasons why the evidence should be preserved and sent up, none of which pertain to the ease at bar. The demand for a jury was in the nature of a challenge to.the jurisdiction of the trial judge to try the case on the facts. If he erred in holding jurisdiction in equity, it is not clear how the evidence on the merits would throw any light on the point. Hence we shall consider the assignment in the absence of the evidence.

(b) The only question debatable is: Was the answer such a pleading of substantive facts as- entitled defendants to affirmative equitable relief? If answered, Yea, then the cause went into equity and there was no error in overruling the motion for a jury. [Pitts v. Pitts, supra, and cases cited,] If answered, Nay, then, in spite of the equitable matter set up by way of defense, the cause continued at law and plaintiffs were entitled to a jury. [Kerstner v. Vorweg, 130 Mo. 196; Thompson v. Bank, 132 Mo. App. l. c. 228.]

Is there substance in the assignment of error? We think not. This, because:

(1) It is argued that matter constituting equitable estoppel in pais is a good defense at law in an ejectment suit. Granted, but it would be a non sequitur to say that a defendant may not use the same matter of estoppel in pais as grounds for affirmative relief in equity, where alone he can get such relief. Estoppels in pais originated in equity, they stand on principles of refined ethics and were always a head of equity jurisdiction. The doctrine was merely borrowed by courts of law as a convenience. That the law has been enriched and enlarged by such borrowed principle ought not to oust courts of equity from enforcing the ancient principles of equity; for the jurisdiction of equity often runs concurrently with that of law. If a litigant be in such a fix that on the facts he is entitled to relief and if the relief at law be inadequate, or “if it is not complete, if it does not attain the full end and justice of the case, if it does not reach the whole mischief and secure the whole right of the party in the present time and in the future, equity will intervene and give such relief and aid as the exigency of the particular case may require.” [1 Story, Eq. (11 Ed.), sec. 33; Hanson v. Neal, 215 Mo. 256, and cases and authorities cited.]

Whether in strictness of speech, a title may he “created” by estoppel is a refinement of no value in the light of modern equity jurisprudence. If A by his actions and conduct, having not spoken when in conscience he should speak, is estopped to speak when in conscience he should keep quiet, if he by ratification with knowledge, by the receipt of purchase money, by turning over possession or by similar means is estopped to assert title in himself and is also estopped, by the same token, to deny title in B, if he has retained the bare naked legal title to the land under such condition of things as makes him seized merely to B’s use — we say, if these things occur (as they do, as shown by this answer) then rounded-out justice demands that one other step be taken, vis.: when B asks it in his pleading the chancellor should not let go of his jurisdiction until A’s naked and bare legal title is vested out-and-out over into B who already holds the beneficial title — this under the maxim that equity considers that done which should have been done.

In Kirk v. Hamilton, 102 U. S. l. c. 77, quoting from 2 Smith Lead. Cas., pp. 730-740 (7 Am. Ed. with notes by Hare and Wallace) it is said: “It is well established that an estate in land may be virtually transferred from one man to another without a writing, by a verbal sale accompanied by actual possession, or by the failure of the owner to give notice of his title to the purchaser under circumstances where the omission operates as a fraud; and although the title does not pass under these circumstances, a conveyance will be decreed by a court of equity.”

Speaking of the appropriation of the doctrines of equitable estoppel by the common law, Herman lays down the rule to be (2 Herm. on Estoppel, sec. 744) that such appropriation will not “estop the right to seek redress by an application in due form to chaneery.” A great array of decisions from this court might he cited to sustain the proposition that whether the force of the decree is directed to specific performance, or to some other form of vesting title from one into another, because of matter of equitable estoppel in pais, a court of equity is allowed jurisdiction. [See, for example, Hubbard v. Glass Works, supra; Kirkpatrick v. Pease, 202 Mo. 471; Shaffer v. Detie, 191 Mo. 377.]

(2) But it is argued (as we grasp the thread of it) that the estoppel does not concern the heirs or devisees of Hubbard, that they are not bound, because they did not participate in the acts of their ancestor, and had no notice or knowledge of those acts, hence, as estoppels proceeds on knowledge, it can not affect them. But counsel in his fervor inadvertently argues unsoundly because he overlooks a proposition, one of the very taproots of the doctrine of estoppel, to-wit, that an estoppel binding an ancestor binds his heirs and privies. “Equitable estoppels,” says Herman, “are as binding upon parties and privies as legal estoppels, and are as effectual in courts of law as an equity.” [2 Herm. on Estoppel, see. 787.]

Plaintiffs as heirs and privies are bound.

The assignment of error now up is disallowed.

IV. Of the demurrer.

(a) By replying over appellants waived their demurrer except on one proposition, viz.: that the answer did not state facts sufficient to constitute a cause of action as a cross petition. [Paddock v. Somes, 102 Mo. l. c. 235; Hoffman v. McCracken, 168 Mo. l. c. 343; Hanson v. Neal, supra.]

(b) It is argued that the second and third defenses were insufficient in point of law. As to the thirty-year Statute of Limitations it is insisted that it cannot apply because the duty to pay taxes was cast upon the life tenant. But this argument runs in a circle. It begs the question. It assumes Mary R. Hubbard was life tenant under the will. But if the equitable title passed in her husband’s lifetime, then she may have been entitled to dower, but a life estate was not cast upon her by the will. There was nothing for that will to operate upon, and no life tenant, or remaindermen so far as the property in this suit is concerned.

(c) The principal argument in support of the assignment of error runs on the theory that we should look into the exhibits filed with the answer and, so looking, we would discover that the petition states no cause of action. Whatever may be the doctrine elsewhere there is no such thing as a “speaking demurrer” known to the jurisprudence of this State — that is, a demurrer that alleges affirmative' matter which, taken with the allegations in the petition, shows that no cause of action is stated. Whatever may be the doctrine elsewhere, in this State a demurrer strikes squarely at the face of the petition and nowhere else. Mere exhibits, under our practice, constitute no part of the petition for the purposes of a demurrer. This has been held early and late. [6 Ency. PI. and Pr., 298-299 ; Hadwin v. Home Mut. Ins. Co., 13 Mo. 473; Curry v. Lackey, 35 Mo. 389; Hoyt v. Oliver, 59 Mo. 188; Hickory County v. Fugate, 143 Mo. 71; State ex rel. v. Crumb, 157 Mo. l. c. 561; Pomeroy v. Fullerton, 113 Mo. l. c. 453.]

(d) Finally, we are confronted with the suggestion that the demurrer was well enough because on its face the answer shows that the pleaded matter constituting the equitable defense, insofar as it serves as a cross petition upon which affirmative equitable relief is predicated, is barred by the Statute of Limitations and, consequently, is dead for the purposes of affirmatiye relief. But this view of it overlooks the fact that if the demurrer were held well taken, then the whole equitable defense would be struck down for every purpose whether as a mere bar or as a cross action. [Sebree v. Patterson, 92 Mo. 451.]

Not only so, but tbe demurrer was bad from tbe viewpoint of a challenge at law to the answer as a cross action. A defendant long in peaceable and adverse possession, buttressed by an equitable title, among the traditional nine points in his favor,, is within the protection of, but not within the mischief struck at by, the Statute of Limitations. Such equitable owner, so disturbed and vexed in his peace and property rights by an attack on his ownership and possession, may summon to his aid very ancient matter of defense — matter growing stronger instead of staler by the mere flux of time — and when he has so summoned it to his aid he may use it by way of counterstroke to make his title impregnable for all time, as well as to parry the attack itself. So runs the law. [Michel v. Tinsley, 69 Mo. 442; Epperson v. Epperson, 161 Mo. 577; Butler v. Carpenter, 163 Mo. 597; Williamson v. Brown, 195 Mo. l. c. 329.]

The premises all considered, the facts on which the decree was based being conclusively presumed true on this appeal, under the omission of the evidence in the bill of exceptions, and the answer showing facts of the most persuasive and convincing character appealing for relief, we conclude the chancellor dealt out righteousness in his decree. Let it be affirmed. It is so ordered.

All concur."