text:
    THE STATE ex rel. C. J. MARRS, Collector, v. R. J. WESSELL and S. W. PIERCE; F. S. KENNEY, Appellant.
    Division One,
    November 29, 1911.
    1. JUDICIAL ACTS: Record: Amendment During Same Term. During tbe whole of the term in which any judicial act is done the proceedings are considered in fieri, and even after judgment has been rendered the record remains in the breast of the judges and is therefore subject to amendment or alteration as they may direct.

      2. -: -: Execution: Setting Aside Tax Sale: Motion by Owner. Every execution issued from a court of record must be made returnable in term time, and so long as this term lasts it is in the power of the court to take such steps with reference to the execution of the process as it may think just and prudent, upon the motion of any party to the proceeding claiming its protection. .It is held in this case that the- court out of which an execution issued has the right, upon motion filed by the owner of the land during the term to which the execution was returnable and was in fact returned, to set aside a sale made under said execution.
    3. -: -: -: -: -: Notice by Publication. The purchaser at an execution sale of land for taxes was the attorney for the tax collector and the one who had instituted and controlled the suit. He paid $95 for the land and con‘veyed it eighteen days afterwards for $350. Service by publication as. against non-residents of the State was obtained against the defendants, although both were residents of the State and well known in the vicinity of the land. Defendant Pierce, the sole owner of the land, had lived within ten miles of it for seventeen years, and the deeds to him were, when the suit was instituted, on record in the county where the suit was brought. This record also disclosed his place of residence. The purchaser, the attorney who instituted the suit, testified that some one at the sale said that defendant Wessell lived or did live at Monett or Pierce City, and he testified also that he did not know at the time but what the title was in and had been in defendants Wessell and Pierce jointly. Defendant Pierce has paid into court the amount of the judgment and costs, and the sheriff has deposited in court the remainder of the amount bid at the sheriff’s sale. It is held, under these facts, that the sale was properly set aside by the trial court upon motion filed by defendant Pierce, the owner of the land, during the term to which the execution was returnable and was in fact returned, although the judgment upon which the execution issued was rendered at a previous term.
    4. -: -: —1-: Purchaser Pendente Lite. One who buys land from the purchaser at a sheriff’s sale under execution upon a tax judgment, and buys it before the end of the return term of the execution, must stand upon the final action of the court upon that sale. With reference to such action he is a purchaser pendmte lite.

    Appeal from Newton Cironit Court.— lion. Argus Cox, Judge.
    Affirmed (as modified.)

      O. L. Cravens for appellant.
    (1) A motion in a suit at law cannot be made to take the place of and be substituted for a bill in equity. Pbillipps v. Evans, 64 Mo. 23; Davis v. Robinson, 126 Mo. App. 293';.Hull v. Sberwood, 59 Mo. 172; Holden v. Vaughan, 64 Mo. 588; Johnson v. Sherrod, 141 Mo. App. 367; State ex rel. v. Riley, 219 Mo. 667; Steel Co. v. Railroad, 165 Fed. 467 ; 2 Freeman on Executions, sec. 310; Rorer on Judicial Sales, sec. 965; Annison v. Williams, 54 Am. St. 51; Crawford v. Fuller, 35 Mich. 53; Spaulding v. O’Conner, 119 Mich. 45; Jewett v. Morris, 41 Mich. 689; Pipe Works v. Williams, 106 Ala. 324; State Bank v. Noland, 13 Ark. 299; Meacham v. Suderland, 10 111. App. 123. (2) The failure to notify Pierce of the issuance of the tax judgment execution was not fatal as against Kenney. Young v. Schofield, ' 132 Mo. 650; Payne v. Lott, 90 Mo. 676; Schmidt v. Niemeyer, 100 Mo. 207. (3) The court erred in finding that Kenney was not an innocent purchaser, and in cancelling his deed. Shelton v. Franklin, 224 Mo. 342; Grriffin v. Franklin, 224 Mo. 667; Corrigan v. Schmidt, 126 Mo. 312; Payne v. Lott, 90' Mo. 676; 17 Cyc. 1298, 1301, 1306; 24 Am. and Eng. Ency. Law (2 Ed.), 67; 2 Freeman on Executions, sec. 296; Rorer on Judicial Sales, sec. 1082; Prather v. Hill, 36 111. 402. (4) At all events Kenney should have been protected to the amount actually expended by him in purchas ing. Hudepohil v. Water Co., 94 Cal. 588; 2 Freeman on Executions, sec. 296; Mixer v. Sibley, 53 111. 61; Nelson v. Bradenbury, 81 Ind. 199; Williams v. Doran, 23 N. J. Eq. 385; Warren v. Sinson, 6 N. D. 293.

      Sizer é Kemp and John T. Sturgis for respondent.
    (1) A sale of land on a writ of execution and deeds thereunder may be set aside on a motion filed at the return term of the writ, for irregularities, accident, mistake, fraud, or anything which makes the sale unlawful, unjust or an abuse of judicial process. Ray v. Stobbs, 28 Mo. 35; Norman v. Eastburn, 230' Mo. 187; Aurora v. Lindsey, 146 Mo. 509; Hardware Co. v. Building Co., 132 Mo. 442; St. Louis v. Brooks, 107 Mo. 380; McKee v. Logan, 82 Mo. 524; Wire Co. v. Scholer, 13 Mo. App. 3491, 85' Mo. 499; State ex rel. v. Yancy, 61 Mo. 397; Nelson v. Brown, 23 Mo. 13; Finke v. Craig, 57 Mo. App. 398; Bank v. Terrell, 135 Mo. App. 472; State ex rel. v. Innes, 137 Mo. App. 420'; Black oh Judgments (2 Ed.), sec. 308, (2) Persons purchasing at an execution sale, either directly or from such first purchaser, do so subject to the right and power of the court to set aside both the sale and deeds made thereunder on motion filed at or before the return term of the execution writ, and notice given to such purchasers. The question of innocent purchaser is not material. Ray v. Stobbs, 28 Mo. 35; Wire Co. v. Scholer, supra; Malloy v. Batchelder, 69 Mo. 503; Hughes v. Burriss, 85 Mo. 660 ; McKee v. Logan, 82 Mo. 524; State ex rel. v. Horine, 63 Mo. App. 1; St. Louis v. Brooks, supra; Bank v. Terrell, supra; Norman v. Eastburn, 230 Mo. 168. (3) Inadequacy of price, when very gross, or when coupled with even slight irregularities, unfairness, fraud, neglect of official duties or abuse of legal powers or process, is sufficient to warrant setting aside a sale and deeds thereunder. And this is especially applicable to tax sales. State ex rel. v. Innes, 137 Mo. App. 420’; State ex rel. v. Elliott, 114 Mo. App. 562; Corrigan v. Schmidt, 126 Mo. 304; Gordon v. O'’Neil, 96 Mo. 350'; Davis v. Mc-Cann, 143 Mo. 172; Cole County v. Madden, 91 Mo. 585; Hardware Co. v. Building Co., 132 Mo. 442; Yea-man v. Lepp, 167 Mo. 61; Mangold v. Bacon, 229 Mo. 450. (4) (a) Constructive service on a resident of this State, on the theory and supposition that he is a nonresident, is an error of fact going to the court’s jurisdiction and power to render such judgment, and the judgment should be set aside on motion coram nobis. State ex rel. v. White, 75 Mo. App. 257; State ex rel. v. Horine, 63 Mo. App. 1; State ex rel. v. Heinrich, 14 Mo. App. 146'. (b) Courts do not reverse judgments except for errors prejudicial to the appellant. The setting aside the judgment, in addition to the sale and deeds, is not material to appellant’s right, and such judgment is fully paid and satisfied. McGuire v. Nugent, 103 Mo. 161; State ex rel. v. Boeffler, 63 Mo. App. 151; Bellessime v. McCoy, 1 Mo. 318.
   BROWN, C.

This is an appeal from the judgment of the Newton Circuit Court setting aside on motion of the defendant Pierce, the owner of the land in question, its judgment in the principal suit enforcing the lien of the State for taxes of 1902 and 1903 against forty acres of land in that county, being the northeast quarter of the northeast quarter of section 11, township 26 of range 29, recalling a special execution issued thereon, and setting aside a sale made under said, execution and the sheriff’s deed made pursuant thereto.

The execution was issued by the clerk October 31, 1905; the sale was made during the same term on December 18, 1905, and the deed was executed and acknowledged during the same term and on December 21st. Mr. Horace Ruark, attorney for the tax collector, who instituted and had charge of the suit, was the purchaser at the execution sale for $95. On January 5, 1906, Mr. Ruark conveyed the land by warranty deed to the appellant Kenney for $350'. ' The execution was returnable at the April term, 1906, and was returned at that term with a report of sale. At the same term, and on June 4, 1906, this motion was filed by the defendant Pierce.

The petition, which was signed by Mr. Ruark, states that the defendants “R. J. Wessell and Samuel W. Pierce are nonresidents of the State of Missouri, so that the ordinary process of law cannot be served upon them in this State,” and publication was made by order of the clerk in vacation. The fact is that both were residents of the State of Missouri and well known in the vicinity of the land. Mr. Pierce, who had lived in Monett, ten miles from the land, for seventeen years, wás the sole owner, and the deeds by which he acquired it, which were, at the time the suit was instituted, on record in Newton county, stated correctly his residence.

Mr. Ruark stated in his testimony as his reason for not ascertaining the residence of the tax debtor: “A lawyer couldn’t go and examine the records of this little tax suit where his fee will not average over $1.50 apiece.” His testimony also shows that he had the assistance of an abstracter in the performance of this duty.

The motion asks the court to set aside the tax judgment, to recall the execution issued thereon and quash the same, and to set aside the sale and sheriff’s deed to Ruark thereunder, and the deed from Ruark to Kenney, and states as grounds for such action the matters set forth above and many other things which we do not consider it necessary in deciding this case to mention. It also contains the following paragraph:

“Defendant further shows that part of the money paid by said Ruark for said land is yet in the hands of the sheriff, the balance having been paid on the costs of this case. That this defendant is willing and now offers to pay said Ruark or his grantee, Kenney, any costs or taxes or expenses paid out in this case, or-to refund to them or either of them, the amount bid and paid for said land, and asks this court to ascertain and determine what amount is justly due said parties, or either of them, and that defendant be allowed to pay the same to them, or into court for them, on this court setting aside the sale herein and the said sheriff’s deed to Ruark and his deed to Kenney.”

It was called for trial on July 23, 1906, that being the 21st day of the April term, 1906, of said Newton Circuit Court, and the following entry was then made: “Now, on this day, the motion to set aside the judgment and sale of land and sheriff’s deed thereunder, heretofore filed in this case on the 4th day of June, 1906, coming on to be heard, and the plaintiff being present in person and by his attorney, Ruark,- who appears for himself also, and his grantee, E. S. Kenney, being present in person and by his attorney O. L. Cravens, and the defendant being present in person and by his attorney J. T. Sturgis, and the parties announce ready for trial but the court stenographer not being present, and the court not being able to hear and deter • mine said motion at this term of court, the same it by the court, with the consent of the parties, continued for further hearing at the October term of this court.”

At the October term, 1906-, Kenney filed his answer to the motion, and the matter proceeded to trial, evidence being introduced by the parties in which the facts we have here stated were practically admitted; and the court rendered its judgment granting to Pierce all the relief asked in his motion; that portion of the judgment involved in the determination of this appeal being as follows:

“The court further finds that of the purchase money received by the sheriff in the sale of said land there is yet in his hands, after paying all costs and taxes in the original suit herein, the sum of $32.31, which, with the consent of said sheriff, is ordered and is now paid into the hands of the clerk of this court for the use and benefit of said Ruark and Kenney, and the defendant is ordered to deposit with the clerk the sum of $62.69 for said parties, which is accordingly done. It is therefore ordered and adjudged by the court that said motion of defendant Pierce be in all things sustained, that the judgment rendered in this cause at the October term, 1905, be set aside and for naught held. That the sale of the land mentioned to Horace Ruark undér execution under said judgment he set aside and annulled and the execution quashed and the deed to said Ruark as purchaser under said sale and judgment, and which is of record in book 26 at page 199 of Newton county land records, and the deed from said Ruark to E. S. Kenney, of record in book 68, at page 469', each purporting to convey said land, be and the same are hereby set aside and for naught held, and that the- defendant Pierce be adjudged to pay the costs accruing on this motion and that execution issue therefor.”

Mr. Ruark stated in his testimony at the trial of the motion that at the time of the sheriff’s sale there was a good crowd present, in which was one Horatio Sturgis; that some one spoke about the name of Mr. Wessell, and that Sturgis said that he lived or did live in Pierce City or Monett. The witness thought nothing was said about Pierce. He did not know at the time but what the title was in and had been in Pierce and Wessell jointly. After he had bought the land at the sale Mr. Marrs, the collector, came to him and said he would like to go in on it. The witness told him all right and then spoke to him about what Mr. Sturgis had said. Mr. Marrs did not go in on it.

I. It is a doctrine that has constantly received the sanction of this court that “ during the whole of the term in which any judicial act is done, the proceedings are considered to continue in fieri, and even after a judgment has been rendered the record remains in the breast of the judges of the court and is therefore subject to amendment or alteration as they may direct.” [Crawford v. Railroad, 171 Mo. l. c. 74, and cases cited.] It is one of the common law powers which, under our system of jurisprudence, inheres in the constitution of every court of record, and of which it can only be deprived by statutory enactment. [Anil v. St. Louis Trust Company, 149 Mo. l. c. 13.] Under its salutary application parties are protected from what would he otherwise the irrevocable results of hasty or inconsiderate action, and are given, before they can be finally concluded with respect to their property or personal rights, a day for hearing in open court, and after the lapse of the term at which a final judgment is rendered it continues to be the duty of the court to supervise the process by which it is enforced, and for this purpose the law has provided a day in court in which those who believe such process has' been oppressively used against them may have a hearing. As has been said by this court, “it is the undoubted duty of every court to see that its process ■ is not abused and perverted to the oppression of individuals” (Ray v. Stobbs, 28 Mo. l. c. 37), but this duty would be a barren one indeed, were not some time and place provided for its exercise. Accordingly the Legislature has enacted that every execution issued from any court of record shall be made returnable in term time, and this court has universally held that so long as this term lasts it is in the power of the court to take such steps with reference to the execution of the process as under the circumstances it may think just and prudent, upon the motion of any party to the proceeding claiming its protection. The solicitude of our courts in preserving to litigants and others this opportunity for protection and redress is illustrated- in Nelson v. Brown, 23 Mo. 13. In that ease the writ was filed in the office of the clerk at the return term without any indorsement upon it showing how it had been executed. At the next term the sheriff,-by leave of the court, indorsed on it a return setting forth the sale of the land involved in the proceeding. This was done on January 24th, and on the 5th day of March and during the same term defendant filed his motion to set aside the sale. This court in its opinion said: “There was in fact no return of the writ until during the term in which this motion was made. The filing of the writ without any indorsement upon it showing the manner in which it was executed, is no return. During’ the term at which the return was in fact filed, this motion was made. As the court lent its aid in permitting a return then to be made, by which it appeared for the first time that the writ had been executed, the incidental power of quashing that return for irregularity in the proceedings of the officer followed as a consequence.”

This court has ever since its creation had frequent occasion to mention its duty and power to control its own process in the interest of justice and humanity.' It has never given any expression to a doubt of its existence. In Norman v. Eastburn, 230 Mo. l. c. 188, it said: “The motion was filed by Paxson to set aside the sale at the return term of the execution. It is too clear for discussion that Paxson’s motion to set aside the sale was made at the proper term and in the proper court. As said by Black, J., in Mellier v. Bartlett, 89 Mo. l. c. 137, ‘Every court has the exclusive control of its process, and no other court has the right to interfere with or control it. [Nelson v. Brown, 23. Mo. 19; Keyte v. Plemmons, 28 Mo. 104; McDonald v. Tiemann, 17 Mo. 603.]’ And the return term of the execution is the term at which the motion should be made. There can be no doubt of the jurisdiction of the circuit court to entertain Paxson’s motion at that term.” We must accordingly assume that in this case the circuit court had the right, if the facts indicated the propriety of such a course, to set aside the sale to Ruark upon the motion filed for that purpose.

II. That the sale of the defendant Pierce’s land under the execution issued in the principal case resulted in great sacrifice to him is demonstrated by the immediate sale of the same land to the appellant.in this case for nearly four times the amount realized for the owner, and the testimony received at the trial of this motion tends strongly to show that its real value for agricultural purposes was at least four times the amount paid for it by appellant, in addition to which it has a purely speculative value as possible mining property. These values, in connection with the contest that he is now making for the privilege of paying the alleged'indebtedness which constitutes the foundation of the judgment, execution and sale in question, fully justify the assumption that had he been advised of the beginning of the suit, as the law provides, he would have avoided the trouble and expense which have resulted from the subsequent proceedings by paying the demand, or defending against it should the facts have justified a defense.

The utmost to which the plaintiff is entitled is the amount of its judgment and costs, which have already been paid into the court by Pierce for its use. The sheriff has also deposited in court a sufficient sum to cover the remainder of the amount bid at the sheriff’s sale, so that the entire amount bid is now in court subject to the order of the purchaser and the appellant, his 'grantee, and the judgment is fully paid. The only controversy is whether or not the sale should be set aside, and the purchaser relegated to the position he occupied before it occurred.

That the defendant Pierce should have received personal notice of the institution of the tax suit is unquestionable. He resided in this State, in an adjoining county to that in which the land was situated and the suit brought. His residence was a matter of record, where it was the duty of Mr. Ruark, the attorney who instituted the suit, to find it, and having found it to cause summons to issue against him and service to be made in such a manner as would bring to his actual knowledge the beginning of a proceeding having for its object the appropriation of his property, if-necessary,- to discharge his alleged liability to the public for unpaid taxes. The law authorizing notice to nonresidents by publication, substitutes a fiction for the notice which, whenever practicable, should constitute the real foundation of every judicial inquiry, for the purpose of reaching those who, being voluntarily beyond the jurisdiction of the court, cannot, by its process, be more directly informed of its proceedings. As to this imperfect substitute, Mr. Wade, in his Law of Notice (2 Ed.), sec. 1030, says that it depends for its validity more upon its strict conformity to the statute by which it is authorized than upon any inherent probability of its conveying intelligence of the impending suit to the party whose rights are to be affected.

The statute which authorizes the courts of this State to render judgments in such cases as we are now considering, upon imputed notice by publication, does not by its terms confine its operation to those who are actually nonresidents of the State, but it provides that if the plaintiff or other person for him shall allege in his petition that a defendant is a nonresident of the State the clerk of the court in vacation shall make an order directed to him, notifying him of the commencement of the suit, and that if he fails to appear on the day named, and answer, the petition will be taken'as confessed. [R. S. 1909, sec. 1770'.] In State ex rel. v. Clarkson, 88 Mo. App. l. c. 558, the S-t. Louis Court of Appeals, referring to the application of this statute to the facts of a case like this, said: “Had the officers of the law, entrusted with the enforcement of tax liens in Howell county, been guided by what was before them, -appellant could and would have been personally served with summons and had his day in court. Instead of affording him this opportunity, that method of procedure was adopted, which the statutes provide for, whereby a valid judgment was obtained against the appellant for the non-payment of taxes assessed against liis lands, without actual notice to him. It is alleged in the petition in the tax suit that the appellant was a nonresident of the State. This allegation made it the duty of the clerk of the Howell Circuit Court to make an order of publication in vacation. . . . This order of publication was duly published and proven. In Tooker v. Leake, 146 Mo. l. c. 429, speaking of a similar order made in a tax case under like circnmsances, the court, through Brace, J., said: ‘When so published and the publication proved, the defendants in said action are as effectually served with process as if served by summons, and a final judgment rendered upon such .service is just as conclusive as a judgment rendered upon service of summons, except that the defendant in the former case may within three years after the rendition thereof have the same reviewed and set aside for good cause as provided in Revised Statutes 1889, section 2217, et seq.’ ”

It is not strange that persons with an eye open to such opportunities should see in such a statute, so construed, possibilities for profitable fraud. Without the danger that attends the making of a false affidavit they might sue their next door neighbor for the enforcement of a lien existing only in a diseased imagination and allege in the unsworn petition the nonresidence of the defendant; and except for the slender chance that the neighbor might hear of the proceeding, procure a judgment, have the property sold to an innocent purchaser, and, after the lapse of the term to which the execution would be returnable, defy the real owner to reclaim it. It goes without saying that in the face of such opportunities it is necessary that the courts be watchful and ready, by the exercise of their judicial authority, to prevent such abuse of their process whenever their jurisdiction is available. Equity jurisdiction is an ineffective substitute for this control because it assumes that the remedy at law has become extinguished, that the transaction is no longer in fieri, that it has become a completed act by which the rights of innocent purchasers in good faith have become fixed, and must be protected, even against the party who suffered the original wrong.

Mr. Ruark, purchaser at the execution sale which it is now sought to set aside, was, at the time the suit was brought, the attorney for the collector of the county having in charge the collection of the delinquent taxes, and in that capacity instituted and controlled this particular suit. It was his duty to see that proper notice was given to those whom he- made defendants and against whom he sought judgment. In this particular case information as to the residence of the defendants was easily available at the very place where the law required him to look for it, because it was necessary that he should ascertain the owner of record, and the only record from which this could be ascertained, also gave the residence of each one of them. Although he had an abstracter to assist him in securing this information, he did not in this case avail himself of his services. Instead of doing so he made the untrue statement in his petition that the defendants were nonresidents of this State, and using-this untruth as his justification for a proceeding of which they had no actual notice or knowledge, attempted by the same proceeding to obtain the land at a price which, as demonstrated by the amount he received for it from the appellant, involved great sacrifice to the owner. The only excuse he now has to offer for the false statement by which he sought to invoke the jurisdiction of the court is that “a lawyer couldn’t go and examine the records of this little tax suit where his fee will not average over $1.50 apiece, ’ ’ an excuse which does not recommend itself to a profession which recognizes the duty to perform faithfully such services as its members may undertake, regardless of the amount of the stipulated fee.

If Mr. Ruark really desired, in the interest of justice, to correct the mistake that he had made, if it was a mistake, and to protect the defendants against any loss not already suffered on account of it, it came to him at the sale, which occurred several months before his execution was returnable. At that time, according to his statement, he still thought the title was in Pierce and Wessell jointly, and heard Mr. Sturgis say that Wessell lived in Pierce City or Monett. He thought that nothing was said at the time about Pierce, but did not seem willing to testify to that fact directly and positively, although the conversation assumed' so much importance in his mind that he told it to his client, Mr. Marrs, who was considering the question of going in with him on the purchase. There was nothing in the world to hinder his taking part in this conversation, and such information as he got should have determined him, if jurisdiction in the case had been wrongfully acquired, to have suspended the sale until the owner should have an opportunity to protect himself: The time was ampio in which to have done this during the life of the execution. Instead, however, of taking this course he hastened to make his purchase and realize his profit, completing the transaction when there was still three months to elapse before his execution would be returnable.

It is clear that so far as Mr. Ruark is concerned he ought not to be permitted, as against Mr. Pierce, to retain the profits of his own wrong. The soundness of this proposition does not seem to be seriously questioned by the appellant, but he does urge, as we understand his argument, that at the time this motion was filed the judgment, by the lapse of the term in which it was rendered, had passed its period of repose in the breast of the judges of the court, and, being regular on its face, could not be attacked by motion, but could only be questioned by an equitable proceeding instituted directly for that purpose, and that it follows that the execution issued to enforce it is equally immune.

It was said by this court in Ray v. Stobbs, supra, that “every one taking title under the process of a court must be understood as taking subject to the approval by the court of the proceeding had under it.” We have already seen that the supervision of the court over the execution of its final process extends throughout the entire term to which it is returnable. During all this time it is its duty to see that the process is not abused of perverted to the oppression of individuals, and in case of an execution sale there is scarcely any fraud or irregularity either in the issuing, form, or execution of a writ which may not be made the occasion for a motion to vacate such sale. [McKee v. Logan, 82 Mo. 525.] In fact the control of the court over such process and all proceedings under it is absolutely within the limits of a sound discretion. The only question to be asked and answered in such a case seems to be, should the action complained of be permitted in justice and good conscience to stand. In this case the property of an individual was sacrificed in a proceeding of which he had no notice or knowledge, and therefore no opportunity to protect it. Were it a scheme deliberately devised for that purpose we would expect the same methods to be adopted that we find here. The first step is to give the court jurisdiction to proceed to the entry of a final judgment and the issue and execution of final process to enforce it, by means that involve the concealment from defendant of the institution and pendency of the suit. Then comes the entry of the judgment, which of itself works no actual wrong, but only, contains the potency for wrong to be worked through its final process, the crowning act in the judicial sequence. When this is issued and lays hold on the property of the defendant, and appropriates it, the series of acts which perpetrates the wrong is compíete. Each, judicial step is under the control of the court during its progress and may then be cut from the chain, every link of which is necessary to the accomplishment of the scheme.

Assuming that the judgment was valid until it should be set aside in a direct proceeding for the purpose, as asserted by the appellant, the interests of the parties to the sale at the time the motion to set it aside was filed were as follows: 1. The plaintiff had the right to have its judgment paid by the defendant or in default of such payment to make it out of the property against which it was rendered. This seems to be the paramount right involved in the proceeding. 2. The defendant had the right, if resort was had to the property, to have it honestly and fairly applied as far as was necessary to the satisfaction of the judgment. 3. The purchaser had no interest except his desire to acquire the property, which he could only do as an incident to the litigation between the parties. The defendant came into court with this motion, and tendered, while the execution of the final process was still pending, the full amount of the judgment and costs. With this tender the pending pro-needing fell to the ground, so far as the plaintiff was concerned. Can the purchaser pick it up, and successfully demand that it be completed for his benefit? We hold that he cannot; first, because, as attorney, he stands in place of the plaintiff who had attained the full measure of the redress which he sought while yet his process was.w fieri, and, second, because it was he who wrongfully prevented the satisfaction at an earlier stage of the proceeding, and cannot be permitted, at the expense of the defendant, to profit by his own wrong. He claims that it is too late to object to the sale as against him, because his failure to perform his duty has already borne the fruit for which it was planted — a judgment of the court. The answer to this is, that the notice is not for the sole purpose of procuring a judgment, but to inform the defendant, and enable him to keep himself informed, of every possible proceeding that might flow from the original process.

III. But it is claimed by the appellant that by his own purchase while the execution was yet outstanding, he has acquired a title unaffected by the infirmities of the title acquired by the purchaser at the sheriff’s sale. It is a sufficient answer to this to say that the court, upon this motion, has nothing to do with his transaction with Mr. Ruark. The question is whether the sale to the latter should be permitted to stand; and as to this the appellant is a purchaser pendente, lite subject to the final adjudication by the court. As a matter of fact the sheriff’s sale was made at the same term at which the judgment was rendered. Had the court seen fit, pursuant to its unquestionable powers, to have set aside the judgment at that term, could it be maintained that, by reason of his purchase, he could embarrass or destroy the jurisdiction of the court over the cause which was pending, subject to this action, during the entire term? The same jurisdiction, independent of the interference of strangers, attached to the execution of its final process during the .term at which it was returnable. Every one taking title under the process of. a court must be understood as taking subject to the approval of the proceedings had under it, and no haste on the part of a stranger to intervene can take away the jurisdiction to approve or disapprove (Ray v. Stobbs, supra). For these reasons the title of the appellant, so far as it depends upon, or is acquired through or under, the sheriff’s sale to Ruark, must stand upon the final action of the court upon that sale. With reference to such action he is a purchaser pendente lite.

IY. With, respect to the action of the court in setting aside the judgment, it is a matter in which these litigants have no interest, and we do not wish to he understood as deciding, either directly or indirectly, any question relating to the jurisdiction of the court over such a judgment, by motion filed, as in this case, at a term subsequent to its rendition. It is asserted by the respondent, and is no doubt true, that a motion to vacate a judgment under our practice will, in proper eases, be taken and considered as in the nature of a writ of error coram nobis, by which matters going to the .jurisdiction of the court to render the judgment, and not appearing upon the record, may be made effective for that purpose. Although this may be a case of that character, the motion itself, as well as the action of the court under it, is inconsistent'with that theory. The motion tenders satisfaction of the judgment, and the court, to all intents and purposes, makes its satisfaction a condition precedent to setting it aside. In other words the judgment is ■ to be vacated after it has been extinguished by satisfaction or a continuing tender equivalent thereto. It appearing from tbe record before us that the entire amount of the principal judgment and costs has already been deposited in the court, this judgment should be so modified as to direct its satisfaction of record instead of its vacation. It should also direct, in substance, that the sale by the sheriff to Horace Ruark under the execution issued upon said judgment be set aside, and that the deed of the sheriff to said Ruark as purchaser at said sale, which appears of record in book 26 at page 199 of the Newton county land.records, be set aside and for naught held so that neither the said Ruark nor said Kenney nor any one claiming by, through, or under them, or either of them, shall take, have or hold any right, title or interest to or in said land under or by virtue thereof. This, while divesting Ruark and Kenney and all claiming under them of any title founded upon the sheriff’s sale and deed, will leave all questions which may arise between Ruark and Kenney with respect to the subsequent deed between them, or any covenant thereof, to be settled between themselves. In all other respects the judgment of the circuit court seems to be fully justified by the record.

The defendant Pierce should pay the costs of this appeal and judgment will be entered here to that effect.

The cause is accordingly remanded to the Newton circuit court with directions that its judgment be modified and entered in accordance with the views herein expressed.

Blair, G., concurs.

PER CURIAM.

The foregoing opinion of Brown, C., is adopted as the opinion of-the-court.

All the judges concur.


source: Caselaw Access Project

author: BOND, C. PER CURIAM.

license: Public Domain

text:
    ELLEN CONNORS v. CITY OF ST. JOSEPH, Appellant.
    Division One,
    November 29, 1911.
    1. ORDINANCE TO GRADE STREETS: *ln Cities of Second Class: Special Proceeding in Circuit Court: Jurisdiction. The action of a city of the second, class in enforcing ordinances for grading streets is a special proceeding in rein regulated by statute. When a certified copy of the grading ordinance is filed with the clerk of the circuit court it is then the duty of the court to make and publish an order addressed to all persons concerned. Thereupon the court has. jurisdiction to proceed with the matter according to statute, and its award of damages or assessment of benefits is preclusive and binding on all persons interested in the subject, except upon appeal or a repeal of the ordinance. This special proceeding relates only to the issue of damages and benefits, and provides expressly that in other respects it shall be conducted according to the general code of civil procedure.
    2. FILING PAPERS IN COURT: Clerk’s Filing Mark. The fact of the due filing of papers in court is not dependent upon the affixing of a filing mark on them by the clerk. To affix a filing mark is simply a ministerial duty on his part, the performance or non-performance of which does not affect the fact of a proper filing, which may be shown by other evidence, as was done in this case.
    3. CIRCUIT COURT: Jurisdiction in Special Proceeding: Affidavit and Jurat: Self-curative. . The jurisdiction of the circuit court to enforce ordinances for grading streets in cities of the second class is conditioned upon the filing of a certified copy of the grading ordinance, and not upon the attaching thereto of an affidavit of previous publication. But even if such attaching were requisite, the affidavit and jurat affixed in this case meet the requirements of the law. It is true that the body of the affidavit refers to publication in December, 1904, when it should have read December, 1903, yet since the jurat of the officer sets forth that it was sworn to before him in January, 1904, it is evident that it could not have been printed in December, 1904.
    •4. -: -: Collateral Attack. The jurisdiction of a circuit court in a special statutory proceeding to enforce an ordinance for grading streets in a city of the second class, when once acquired, cannot be collaterally attacked upon the ground that the record of such court does not affirmatively show that the commissioners .appointed to ascertain damages and benefits were “freeholders” or “disinterested freeholders.” If the contrary were true, the power of the court to proceed with the cause would be made to depend, not on the fact of its rightful action, but solely upon the existence -of evidence of such action in the form of a record recital. The same favorable presumptions arise respecting the judgment of a circuit court under its special powers as arise under its general powers.
    ” Appeal from Buchanan Circuit Court . — Eon. G. A. Mosman, Judge.
    Reversed.

      W. B. Norris, O. E. Shultz and Phil A. Slattery for appellant.
    (1) Proceedings to grade streets in cities of the second class are proceedings in rem, and .the court may acquire jurisdiction by publication, and when sucb notice bas been duly published, and the parties do not appear at the proper time and present their claims for damages, they will be held to have waived their right to complain of what was clone by the court. Kansas City v. Duncan, 135 Mo. 571. (2) Upon filing the certified copy of the ordinance for the grading of Vine street in the circuit court, and an order of publication having been made by said court and entered of record, notifying all persons of the day set for the hearing, to determine the damages and benefits to be assessed in the proposed grading of Yine street, according to the ordinance set out in the order of publication, and upon proof having been made that the order had been duly published according to law, the court had jurisdiction over the parties, including the plaintiff in this case, and whatever it did or did not do is a matter of error, and does not make void its subsequent orders and proceedings in a collateral proceeding. "Wilhite v. Wolf, 179' Mo. 479. (3) A judgment of a court of competent jurisdiction, so long as it stands unreversed, cannot be impeached in a collateral proceeding on account of irregularities not going to the jurisdiction of the proceeding. Lovett v. Russell, 138 Mo. 474; Burke v. City of Kansas, 118 Mo. 3i09; Leonard v. Sparks, 117 Mo. 103; Union Depot Company v. Frederick, 117 Mo. 138. (4) Every presumption is indulged in favor of the jurisdiction of a court of general jurisdiction, and this principle applies to condemnation proceedings. Buddecke v. Ziegenheim, 122 Mo. 239. (5) The fact that the order appointing the commissioners to assess damages and benefits in the grading of Yine street did hot recite that they were disinterested freeholders, cannot be heard in this collateral proceeding as destroying the jurisdiction of the court, as it had jurisdiction of the subject-matter and the parties, by reason of the filing of a certified copy of the ordinance and the order of publication having been duly published. Thompson v. Railroad, 110' Mo. 147; Leonard v. Sparks, 117 Mo. 103; City of Tarkio v. Clark, 186 Mo. 285. (6) If the affidavit of the publication of the ordinance prior to the filing of the same was necessary to give the court jurisdiction of the proceedings, then the court had the right, and it was its duty, to permit the affidavit to he amended in the furtherance of justice, and according to the truth. Feurt v. Caster, 174 Mo. 289; R. S. 1909, secs. 1848 and 1851. (7) The affidavit of the publication of the ordinance prior to the filing of the certified copy of it in the circuit court was not jurisdictional. R. S. 1909, see. 9055. (8) The affidavit of the publisher stating that the ordinance was published for ten days consecutively, from the 18th day of December, 1904, to the 27th day of December, 1904, inclusive, on its face shows that the word “1904” should be read “1903,” as the affidavit was sworn to on the 18th day of January, 1904, showing conclusively that the word “1904” must have been a clerical error, and the court will so take judicial notice of it. Fleming v. Tatum, 232 Mo. 690.

      Vories $ Vories for respondent.
    (1) Where the service of process is insufficient or unauthorized by law, the court does not obtain jurisdiction, and a judgment rendered is without validity, and may be attacked in a collateral proceeding. Cloud v. Pierce City, 86 Mo. 357; Lang v. Sweeney, 105 Mo. 360; Williams v. Monroe, 125 Mo. 584; Hamen v. Cravens, 126 Mo. 253; Rosenberger v. Gribson, 165 Mo. 23; Feurt v. Caster, 174 Mo. 30®. (2) The affidavit of the publisher in the proof of publication in “In re grading Yine street” showed that the special ordinance was published in December, 1904, the certified copy of the ordinance shows its approval December 8, 19031 The ordinance had to be published within twenty days from its taking effect. R. S. 1899, sec. 5667. (3) When a court of general jurisdiction proceeds in the exercise of special powers, its jurisdiction must appear in the record and cannot be presumed in a collateral proceeding; the same rule applies as to courts of limited jurisdiction. Eaton v. St. Charles County; 76 Mo. 492; Ells v. Railroad, 51 Mo. 200; Railroad v. Campbell, 62 Mo. 585. (4) The jurisdiction of an inferior court over the subject-matter must affirmatively appear on the face of-the record, and if it does not so appear, the judgment must be treated as a nullity, and may be attacked in a collateral proceeding. Ruckhert v. Richter, 106- S. W. 1081. (5) Jurisdictional facts must affirmatively appear in the record in all proceedings seeking to condemn or damage private property for public use, and such defects may be taken advantage of in either a direct or collateral proceeding. In re Bledsoe Hill, 200 Mo. 642; City of Tarkio v. Clark, 186 Mo. 298; Ells v. Railroad, 51 Mo. 200; Railroad v. Campbell, 62 Mo. 585; William v. Kirby, 160 Mo. 628; Cunningham v. Railroad, 61 Mo. 33; Jones v. Zirk, 65' Mo. App. 412; Fore v. Hoke, 48 Mo. App. 262; Zimmerman v. Snow-den, 88 Mo. 220; Jefferson Co. v. Cowan, 54 Mo. 237. (6) Though a court may possess jurisdiction of a cause, of the subject-matter and of the parties, it is still limited in its mode' of procedure and in the extent and character of its judgment, and the doctrine is only correct where the court proceeds according to the established modes governing the class to which it belongs. Winon v. McVeight, 93 U. S. 282; William v. Monroe, 125 Mo. 588; 11 Cyc. 693, and cases cited. (7) The presumptions that the law implies in support of superior courts of general jurisdiction arise only with respect to jurisdictional facts concerning which the record is silent, and where the statute requires evidence thereof to ,be in the record, the rule - does not exist. 11 Cyc. 693'. (8) The statutory requirement that a “complete record shall be kept” qualifies and changes the rule, the presumption must be that nothing was done except as shown by the record. 11 Cyc. 693, and cases cited.
   BOND, C.

Plaintiff is the owner of a lot of ground and improvements thereon situated on Vine street in the city of St. Joseph.

The records of the circuit court of Buchanan county, of date January 18, 1904, recite, in substance, that a certified copy of an ordinance providing for the grading of the street in front of plaintiff’s property, together with due proof of publication thereof, had been filed in that court; whereupon, said court made an order giving notice to all persons concerned of the filing and purposes of said ordinance, and ap- - pointing February 3, 1904, as the day and said court room as the place for ascertaining and assessing the damages and benefits that might arise from said proposed grading, and admonishing such persons to file their claims for damages, together with a description of their respective property and titles thereto, on or before said date or any continuance thereof under penalties of law, and the court directed proper'publication of said ordinance, which its records show was duly had.

• The files of said court show that the affidavit of the printer as to the due publication of the ordinance, although attested by'a notary to have been sworn to on January 18, 1904, yet recited in the body of the affidavit that the publication- was made between and including the dates of “18th of December, 1904, to 27th of December, 1904.” On the trial of the present action, the court permitted the publisher to amend the body of the said affidavit by filing a new affidavit to the effect that the figures denoting the year in the former affidavit should have been 1908 instead of 1904. The records of the said circuit court show the appointment and reports of commissioners to assess damages and benefits, but are silent as to whether or not such commission were freeholders. The records of the said circuit court show the written instructions given to the commissioners by the court, which were found among the file papers in said grading proceeding,' but contained no indorsement of filing.

It was admitted that the city of St. Joseph paid all the owners of abutting property the amount of damages assessed in their favor by the commissioners. No claim for damages was made in the street grading proceeding by the plaintiff in the present suit, which was brought about four years thereafter (1908) to recover damages caused by the grading of the street in front of her property. To this suit the defendant city • pleaded the enactment of said grading ordinance and the due enforcement thereof by the subsequent proceedings in the circuit court of Buchanan county, as are before stated, for a complete bar to any recovery by plaintiff in this action. Plaintiff replied, admitting the grading of the street. It was admitted by both parties that if plaintiff was entitled to recover at all, her damages were $400. Thereupon, after waiver of a jury, the cause was submitted to the court for trial, and judgment rendered for plaintiff for $400, from which defendant appealed.

OPINION.

I. The action of a city of the second class in the matter of enforcing ordinances for the grading of its streets is regulated by statutes, which prescribe the various steps to be taken from the passage of the ordinance until its final performance through a special execution under a judgment of the circuit court. A certified copy of the grading ordinance is filed with the clerk of the circuit court. It then becomes the duty of the court to make and publish, as prescribed by statute, an order addressed to all persons concerned. Thereupon, tbe court is invested with jurisdiction to proceed in the matter according to other provisions of the statutes, and its judgment as to the award of damages or assessment of benefits is preclusive and binding on all persons interested in the subject, except upon a review by appeal or in ease of the repeal of the ordinance. [R. S. 1900, secs. 9051-9066', inclusive.] This special proceeding relates only to the issues of damages and benefits, and provides in express terms that in other respects it shall be conducted according to the general code of civil procedure. [R. S. 1900, sec. 90'61.]

The proceeding is one in rem. After due publication of notice to abutting owners (without naming them), reciting the copy of the ordinance filed in the circuit court, and requiring all persons concerned to appear on the day and at the place fixed for the ascertainment of ’ damages and benefits, and file their claims with a description of their property, the court becomes fully possessed of jurisdiction of the subject-matter of the proceeding and the persons of the parties so notified, and is empowered to proceed to enforce the grading ordinance under the limitations of the Constitution and the law. It is insisted; that the jurisdiction thus normally acquired by the circuit court, in cases like the present, did not vest in this instance, because the certified copy of the ordinance, though deposited in the circuit court by the proper officer and found among the papers constituting the files in this proceeding, and though the court records recited the fact of the filing of the certified copy of the ordinance, was not legally filed for want of a superscription showing its filing by the clerk. It has been repeatedly decided that the fact of the due filing of papers in court is not dependent upon the affixing of a 'filing mark on them by the clerk, which is simply a ministerial duty on his part — the performance or nonperformance of which does not affeet the fact of a proper filing, which may be shown by other evidence, as was done in this case. [State v. Jackson, 221 Mo. 493; Bennett v. Hall, 184 Mo. 420; State v. Hockaday, 98 Mo. 503; Baker v. Henry, 63 Mo. 517; Rowe v. Schertz, 74 Mo. App. 608.]

II. It is also urged by respondent that the affidavit of the printer showing the publication of the ordinance by the city authorities previous to the filing of a certified copy in the circuit court is defective, in that it misdates the year of publication by reciting December, 190l¡., when it should have been recited December, 1903. The trial court permitted an amendment to this affidavit by the substitution of another made by the same printer. That method of correcting the clerical error was not necessary in this case, for an inspection of the affidavit shows that the jurat of the officer sets forth that it was sworn to before him on January 18, 1904; hence, it is evident it could not have been printed in December, 1904, and that the figure contained in the body of the affidavit referring to its publication in December, 1904, was a mere slip in the stroke of the pen of the affiant. The affidavit and jurat do furnish intrinsic evidence of the error in using the figure 4 as the final one in the year mentioned in' the affidavit instead of using the figure 3 as the final one in said year. The affidavit and jurat were, therefore, self-curative and needed no amendment by the filing of a new affidavit. [Fleming v. Tatum, 232 Mo. l. c. 690.] We, therefore, hold that even if the statute had conditioned the jurisdiction of the circuit court not only on the filing of a certified copy of a grading ordinance bnt also on the attaching’ thereto of an affidavit of previous publication (which it does not), still the affidavit and jurat affixed to the certified copy filed in this case met the requirement of the law. [R. S. 1909, sec. 9055.]

'III. The important question on this appeal is, whether the failure of the record of the circuit court in a proceeding under the grading ordinance to show expressly that the commissioners appointed to ascertain damages and benefits were also “freeholders” (Const., art. 2, sec. 21), or “disinterested freeholders” (R. S. 1909, sec. 9056), is fatal to the jurisdiction exercised. If the power of the circuit court to act at all in' the proceeding before it depended wholly upon an express recital in its records that the commissioners appointed in the course of the exercise of its jurisdiction were “freeholders” or “disinterested freeholders,” then the entire proceeding conducted by it for the grading of this street was a mere nullity, and the judgment for plaintiff for damages caused thereby would 'have to be affirmed, for the reason that judicial proceedings which are carried on without any jurisdiction or judicial power to do so are absolutely void, and hence open to attack in collateral suits like the present.

If the plaintiff had pursued her remedy by appeal from the judgment of the court in the former proceeding, all errors occurring in the conduct thereof would have been open for review and correction. But that was not done, and the effort now is through the medium of an independent suit to declare the entire proceeding to enforce the grading ordinance coram non judice, because it contains no recitals as to the characteristics of the persons appointed as commissioners to report damages and benefits. It is not claimed in- the present suit that the persons so appointed as commissioners in the former did not possess the attributes of freeholders. The only claim is that the record.there is silent as to this. This reduces the entire discussion to one question. What presumption legally arises from silence of the record on that subject when it is attacked collaterally in this suit? The court in the street grading case was acting under special powers bestowed upon it by the Legislature outside of the sphere of its general- powers as a court of law and equity, except, so far as these were made applicable to any matters which might arise in the course of the special proceeding and which it did not specially provide for. It acquired jurisdiction and power to act in the matter by the filing with its clerk of a certified copy of the ordinance and by the making and publishing of a notice thereof, addressed to the abutting property owners. When these things were done, the court was invested with full authority to proceed in the matter and to charge plaintiff’s property with benefits or assess damages in her favor if she made any claim for such. In the further exercise of this jurisdiction, the court appointed certain commissioners to make report as to damages and benefits. If in so doing the court did appoint commissioners who possessed the qualifications required by the Constitution and the statutes, but failed to evidence that fact by a record entry, it cannot be held that such an omission deprived the court of all power to exercise any further jurisdiction. For if that were true, then the power of the court to proceed with the cause would be made to depend, not on the fact of its rightful action, but solely upon the existence of evidence of such action in the form of a record recital It may have been error on the part of the court not to keep a complete record of its acts and doings during the progress of that cause (R. S. 1909, sec. 9054), still such error did not divest it of all jurisdiction, but was only an error occurring in the exercise of a previously vested jurisdiction. Such errors cannot be reached by collateral attack, whether committed in judicial proceedings under the general or special powers conferred on the circuit court. In either event, the same favorable presumptions arise. [Leonard v. Sparks, 117 Mo. l. c. 108.] The cast last cited, by Barclay, J., is directly in point and controlling. It reviews in extenso the previous variant rulings in this State, and announces the doctrine, that, when collaterally attacked, the judgment of the circuit court in a purely statutory proceeding ‘ ‘ entirely out of the course of common law procedure” must receive in its support the benefit of the same presumptions accorded by law to all judgments rendered by such court in the exercise of its ordinary and general powers. To the same effect see Burke v. City of Kansas, 118 Mo. 309; Thompson v. Railroad, 110 Mo. l. c. 162; Belk v. Hamilton, 130 Mo. l. c. 300; Lovitt v. Russell, 138 Mo. l. c. 474. There is nothing in the ruling made in the City of Tarldo v. Clark, 186 Mo. 285, which militates against the principle established in Leonard v. Sparks, supra, which case is cited in Tarkio v. Clark with approval of its doctrine as to collateral attacks, but held not to apply in the latter case since the attack there was a direct one made on appeal. The same distinction exists as to the ruling in In re Bledsoe Hill, 200 Mo. 630, which was also a direct attack by appeal to this court.

Our conclusion is, that there is nothing in the record made by the circuit court in the exercise of its jurisdiction to enforce the street grading ordinance which shows that the court in that proceeding had no'power or jurisdiction over the subject-matter or over the plaintiff so far as to render the judgment which was had in the case, and that said judgment is , not open to the collateral attack which constitutes the ground of the present action, and that the failure of the record to make any recital in that cause that the commissioners were freeholders was only an error occurring in the erroneous exercise of jurisdiction and did not flow from a total want of jurisdiction, and hence it was one correctible on direct attack but closed to collateral attack, and, therefore, is a bar to this suit. The result is, the judgment herein is reversed.

Brown, G., concurs.

PER CURIAM.

The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All the judges concur.


author: BLAIR, C. PER CURIAM.

text:
    GEORGE G. CARTER, by HARRIET E. CARTER, his Curatrix, Plaintiff, Appellant, v. S. E. CARTER et al., Defendants, Appellants.
    Division One,
    November 29, 1911.
    1. EVIDENCE: Presumptions: Record of Court. When the record of a court is in evidence presumptions born of silence cannot be invoked, in the face of that record, to support the court’s judgments and orders.
    2. COURTS: Of Probate: Session out of Term Time: Sec. 4060, R. S. 1909. A judge of probate cannot, without previous order of adjournment during term time, call a term of his court in vacation except in those cases where he is given such power by the statutes. Nor is his power in that respect enlarged by that part of Sec. 4060, R. S. 1909, .reading, “Said court . . , may hold special and adjourned terms at any time when required.”
    3. -: -: -: Order of Sale of Minor’s Land. An order of sale of a minor’s real estate can be made only by a probate court lawfully in session. Such an order made by a probate judge, in vacation, at a time to which there had been no adjournment in term time, is a nullity, and, consequently, a deed made in pursuance thereof is void.
    4. -: -: -: -: Appearance of Curatrix: Estoppel. The fact that the curatrix of- a minor appeared in the probate court and atempted to file her petition for an order of sale of the minor’s lands on a day when the court was not lawfully in session (the- judge having no power to call a term of the court on that day or for that purpose) does not estop either her or her ward from asserting that no court was in session on that day.
    5. EJECTMENT: Defense: Dower Interest. The judgment for plaintiff in ejectment was that “plaintiff have and recover possession of said premises, subject to the dower interest of plaintiff’s mother.” The-fact that a defendant owns this dower interest is no defense, and, in fact, the judgment means nothing more than that plaintiff’s possession is subject to that interest whether it is still the mother’s or has been conveyed.
    6. -: Lease: Breach of Covenants: Forfeiture Clause. Where a lease contains a clause providing for forfeiture and re-entry upon failure of the lessee to comply with its requirements in good faith, ejectment will lie when the lessee so fails.

      7. -: -: -: Evidence: Appeal. When, in an action in ejectment, there was substantial evidence tending to show a breach of conditions by a lessee, and the court’s judgment for possession involved a finding that the leases were forfeited, the court’s finding cannot be inquired into here.
    8. -: Joinder of Defendants: Lessee: Possession. The lessee of a part of the land sought in ejectment need not be joined as a defendant when the evidence does not show that he was in possession when the action was, instituted. Further, his rights, if any, are not affected by the judgment, and no question concerning them can be determined in this case.
    9. -: -: Lessor: No Objection Below. A lessor who has been joined as a defendant with his lessees, and yet has answered without objection on that score and prayed and obtained affirmative relief, cannot complain in this court. Nor can the lessees, not halving raised the question below, be heard to insist upon it here.
    10. -: Invalid Sale of Ward’s Land: Repayment of Purchase Money: Paintiff the Beneficiary. Where the plaintiff in ejectment has become the beneficiary of the money paid to his curatrix at an invalid sale of his land, he cannot object to a judgment which, while granting him possession, orders the , repayment of the money to the purchaser, a defendant here.
    11. -: Peading: Possession of Defendant: General Denial: Demurrer to Evidence. When there was no evidence that certain defendants in ejectment were in possession at the time of the institution of the suit, and they put their possession in issue by a general denial, demurrers to the evidence separately offered by them should have been • sustained. The judgment rendered against them is accordingly reversed.
    Appeal from Jasper Circuit Court. — Hon. Henry L. Bright, Judge.
    Affirmed as to defendants Byrd and "W, Gr. Carter; REVERSED AS TO DEFENDANTS KyGER AND S. E'. Carter.

      Waltour M. Robinson and Thomas & Hackney for plaintiff.
    (1) The deed from the cnratrix of the plaintiff to his interest in the real estate described in the petition, dated February 12, 1906, offered in evidence by the defendant was and is void for the reason that the order of sale was made by the probate court in vacation. Probate courts in this State are courts of record.' R. S. 1909, sec. 4055; R. S. 1909, sec. 3870. The court could adjourn to a date certain only by order made pursuant to the statute. Stovall v. Emerson, 20 Mo. App. 322; Holman v. Hogg, 83 Mo. App. 370. And certainly the same rule would require that if it could be convened in special term only pursuant to the statute, the adjournment on January 8, 1906, to the next regular term concludes all further action of the court at that term. State ex rel. v. Ross, 118 Mo. 47; Ashby v. Glasgow, 7 Mo. 320>; Hill y. St. Louis, 20 Mo. 584; Harbor v. Railroad, 32 Mo. 423; -Van Dyke v. State, 22 Ala. 57. The judge of the probate court has no power to hold a court for the hearing of a particular case at any other time or place than those fixed by law, and any decree passed' in such case is void. White v. Riggs, 27 Me. 114; 8 Am. and Eng. Ency. Law (2 Ed.), p. 34. (2) The court committed no error in holding that the mining lease described in the judgment of the court from A. G. Carter to defendant S. E. Carter had been forfeited prior to the commencement of this action for failure to pay the royalties. If the lease from A. G. Carter had not been terminated, why was the defendant S. E. Carter procuring or attempting to procuré a lease from the minor plaintiff? The fact that the lease attempted to be procured from the plaintiff, through the probate court was void for want of power in the court to authorize the plaintiff’s curatrix to execute the same, does not detract from the necessary conclusion that he, at the time he was so attempting to do, knew that the former lease had been forfeited. Defendants cannot complain because the sub-lessees, if any, carrying on mining operations on a part of the land were not made parties defendant. Such parties are not affected in any wise by the de~ cree. A party in possession anterior to the commencement of a suit in which, he is not a party cannot be dispossessed under a judgment rendered therein. Garrison v. Savignac, 25 Mo. 47; Goerges v. Huffschmidt, 44 Mo. 179; State ex rel. v. Harrington, 41 Mo. App. 439; Oakes v. Aldridge, 46 Mo. App. 11; Richards v. Smith, 47 Mo. App. 619. (3) . The unassigned dower of Harriet E. Carter, mother of the plaintiff, and widow of A. C. Carter, deceased, is no bar to the plaintiff’s action. Sell v. McAnaw, 138 Mo. 267. McClurg v. Turner, 74 Mo. 45; Weaver v. Crenshaw, 6 Ala. 873; 10 Am. and Eng. Ency. Law (2 Ed.), 515; Bar- • nett v. Meacham, 67 Ark. 313; Carnell v. Wilson, 21 Ark. 62; McCammon v. Railroad, 66 Mich. 442; King v. Merritt, 67 Mich. 194; Howe v. McGivern, 25 Wis. 532. (4) The defendants, S. Ei. Carter, W. T. Carter and S. Kyger, having answered jointly and their answer being a general denial, and the evidence conclusively showing that S. E. Carter and W. T. Carter were in possession of the premises sued for, at the institution of the suit, no error was committed by the trial court in finding the issues in favor of the plaintiff as to these defendants. It is clear that if the defendants united in a general denial they are liable to a joint verdict. Sedgwick and Wait on Trial of Title to Land (2 Ed.), sec. 238; Patterson v. Ely, 19 Cal. 28; Jones v. Hartley, 3 Whart. (Penn.) 191. The general rule is that a. defendant by interposing the general issue admits .himself to be in possession of the whole of the land claimed in the writ or declaration, and that if he desires to dispute or controvert the question of possession the proper method to' accomplish that result is by special plea in order to avoid this admission of possession. Sedgwick and Wait on Trial of Title to Land, sec. 479; Ulsh v. Strode, 13 Pa.. St. 433; Hill v. Hill, 43 P'a. St. 521; Holman v. Elliott, 86 Ind. 231; Callan v. McDaniel, 72 Ala. 102; Graves v. Amoskeag Co., 44 N. H. 463; Bernard v. Elder, 50 Miss. 336; Cumming v. Butler, 6 Ga. 88; Stevens v. Griffith, 3 Yt. 48. Besides if there was a misjoinder of parties defendant, the defect^ if any, should have been taken advantage of by demurrer, if it appeared on the face ■ of the petition; and if not so appearing it should have been taken advantage of by answer. Russell v. De Prance, 39 Mo. 506; Hicks v. Jackson, 85' Mo. 283'; Thompson v. Railroad, 80 Mo. 521; 7 Am. and Eng. Eney. P. and P., p. 315 ; Posgate v. Herkimer Co., 12 N. Y. 580; Dillaye v.-Wilson, 43 Barb. (N. Y.) 261; Ames v. Harper, 48 Barb. (N. Y.) 56; Camden v. Haskell, 3 Rand. (Va.) 462; Cunningham v. Bradley, 26 G-a. 238. In no event under the facts of the record in this case would a failure to show one of the said defendants was in possession at the institution of this suit, as no judgment was rendered against either W. T. Carter or S. Kyger, not even a judgment against them for costs, necessitate a reversal. Reversible error is described in written law as error materially affecting the merits of the action. R. S. 1899, sec. 693; Mann v. Doerr, 222 Mo. 15. The appellate court may strike out the name of a defendant or may affirm a judgment as to one or more of defendants and reverse ■ it as to others. State ex rel. v. Tate, 109' Mo. 265; Bensieck v. Cook, 110 Mo. 183; Cruchon v. Brown, 57 Mo. 38; Evans v. Kounze, 128 Mo. 670; Neenan v. St. Joseph, 126 Mo. 89; Stotler v, Railroad, 200 Mo. 150; Hunt v. Railroad, 89 Mo. 607.

      George Hubbert and Franje L. Dorlaiv for defendants.
    (1) The guardian’s deed from Harriett Carter to Chas. A. Byrd is on its face one warranted by law, and carries its own evidence of authenticity and efficiency, prima facie, under the statute; and the burden is upon him who challenges its force, for any reason, to make good the challenge, by assuming and discharging the full burden of proof in that regard, which respondent has not done. R. S. 1899, sec. 3508; Bray v. Adams, 114 Mo. 486; Exendine v. Morris, 76 Mo. 416. (2) The Jasper county probate court was duly organized as a de facto court, constituted of all necessary elements, sitting in the discharge of’ its judicial powers; and the integrity of its record and competency of its jurisdiction to uphold the guardian’s deed, may not be assailed, in this collateral way, upon such unsubstantial grounds as were put forward in the circuit court. Const. Mo., art. 6, sec. 35; R. S. 1899, secs. 1752, 1756, 1757, 1785', 1786', 1604, 1606, 1609; In re Stevenson, 125 Fed. 843; United States v. The Little Charles, 26 Fed. Cas. No. 15, 613; State ex rel. v. Nash, 83 Mo. App. 512; Cook v. Renick, 19 111. 600; Cook v. Skelton, 20 111. 107; Spring v. Kane, 86 111. 586; Dukes v. Rowley, 24 111. 221; State v. Bush, 136 Mo. App. 614; People v. Young, 151 N. Y. 210; Mattingly v. Darwin, 23 111. 618; Grant v. State, 62 Ala. 233; Ex parte Bond, 96 S'. W. (Tex.) 1081; Goll v. United States, 151 Fed. 412; Cribb v. State, 45 S. El (Ga.) 396; Buchanan v. State, 45 S. E. (Ga.) 607; Ex parte Neil, 43 So. (Miss.) 615; Johnson v. Beazley, 65 Mo. 250; State ex rel. v. Nolan, 99 Mo. 577; Stockslayer v. United States, 116 Fed. 590; Overton v. Johnson, 17 Mo. 451; Hicks v. Ellis, 65 Mo. 184; Cole County v. Dallmeyer, 101 Mo. 65; State ex rel. v. Mitchell, 127 Mo. App, 460; Cook v. Penrod, 111 Mo. App. 128; Mobley v. Nave, 67 Mo. 546; Duval’s Heirs v. McLoskey, 1 Ala. 708; Weaver v. Cooledge, 15 la. 24; Harmon v. Copenhauer, 89 Ya. 836; State v. Shanley, 38 W. Ya. 516; State v. Ted-ford, 6 Ired. (N. C.) 5; Green v. Morse, 57 Neb. 391; Clough v. State," 7 Neb. 320; Bowen v. Stewart, 128 Ind. 507; Wharton v. Sims, 88 Ga. 617. (2) The responding plaintiff here is foreclosed and estopped against attack upon the judicial orders of the probate court that were invited by his guardian and resulted in the guardian’s deed. Smurr v. State, 123 Ind. 125; 21 Ency. PL and Pr. 611, note 1; Thompson v. Maxwell, 168 U. S. 451; Wilson v. Schafer, 107 Tenn. 300. (3) The lower right of A. Gr. Carter’s widow to one-third of his interest for life, in the land and in the opened mines thereon, vested, by virtue of her deed, in defendant Byrd. And that estate or its issue is allotable to him, by admeasurement, or by equitable distribution of royalties, if that method be found necessary. But this was overlooked and practically denied below, though a clear right. R. S. 1899, sec. 2904; Phillips v.'Pressen,"172 Mo. 27; Rice v. McFarland, 34 Mo. App. 404; Miller v. Talleu, 48 Mo. 503. (4) The judgment should not stand, as against the Davis leasehold, without its owners being parties, to this cause. Spurlock v. Burnett, 170 Mo. 372; Phillips v. Hardenberg, 181 Mo. 463'. (5) The adjudged forfeiture of the A. Gr. Carter lease is not supported by the pleadings; nor is there any evidence of the determination of the leasehold for any cause; nor of any attempt to enter for breach of conditions before suit brought. 2 Fay, Dandi, and Ten. (9 Ed.), sees. 495 and 497. (6) Whether or not the court below was- endowed with power to administer equities in behalf of plaintiff without pleading therefor, it could have done no less than require the restoration, as it did, of the purchase money to Bird by the guardian. Patillo v. Martin, 107 Mo. App. 653; Mably v. Nave, 67 Mo. 546; Shroyer v. Nickoll, 55-Mo. 264; 18 Ency. PL and Prac. 858-60; 16 Cyc. 140; 141; Andrews v. Conoly, 145 Fed. 46; McClure v. Lewis, 72 Mo. 326; Farmers’ L. & T. Co. v. Railroad, 126 Fed. 46; Thompson v. Cohen, 127 Mo. 241; Fleckenstein v. Waters, 160 Mo. 656; Carlton v. Hulett, 51 N. W. (Minn.) 1053; ITill v. Hall, 77 N. E. (Mass.) 837.
   BLAIR, C.

George G. Carter, a minor, by Ms curatrix, brought this suit in ejectment for an undivided one-fifth interest in five hundred and thirty-eight acres of land in Jasper county. The petition is in the usual form. The plaintiff is the sole heir at law of A. G. Carter, deceased, who at his death owned a one-fifth interest in the lands in suit: Harriet E. Carter is the mother and curatrix of plaintiff and widow of A. G. Carter.

In 1890, A. G. Carter and the defendant S. E. Carter, each owning a one-fifth interest in the lands in suit, obtained a lease on the remaining three-fifths for a term of fifteen years, with the option to renew for ten years. In 1903, A. G. Carter executed a lease on one hundred and sixty acres of the tract for twelve years to S. E. Carter. In November, 1904, Harriet E. Carter executed a quitclaim deed to defendant Byrd, and in November, 1905', Harriet E. Carter, individually and as curatrix of plaintiff, executed to defendant Byrd a lease on that part of the tract in suit not included in the lease from A. G. Carter to S. E. Carter. In February, 1906, Harriet E Carter executed a deed as curatrix of plaintiff purporting to convey to Byrd the interest of her ward in the land in suit, receiving as consideration therefor the sum of five thousand three hundred and eighty dollars, which she accounted for as curatrix of plaintiff. Byrd seems also to have acquired title to the other four-fifths of the whole tract.

There was evidence that the price obtained by the curatrix for her ward’s interest was far below its value and some effort was made to show that S. E. Carter, the uncle of plaintiff and father-in-law of Byrd, had misled the curatrix as to the value of the land.

With respect to the deed of the curatrix to Byrd, the records of the probate court were offered and dis-' closed that the November, 1905, term of the probate court of Jasper county adjourned to court in course January 8>, 1906, and that the next regular term of court convened February 12, 190’6. On February 7, 1906, the following' appeared: “Jasper County Probate Court. Wednesday, February 7, 1906. Call day of court term, 1906. Court convened pursuant to the order of the judge in vacation. In the matter of the estate of George Carter, a minor.” Then followed the order of sale, pursuant to which the curatrix attempted to sell her ward’s interest to Byrd. °

There was no order calling a special term of court, nor was there any minute or notation of any such order of record or otherwise. These facts were shown by the record of the court and the testimony of the clerk. The order approving the sale, made at the regular February, 1906>, term of the court, recites that the order of sale was “made at the November (special), 1905, term thereof.” There was evidence tending to show the forfeiture of the leases executed by A. G. Carter and by Harriet E. Carter, curatrix, to S. E. Carter.

The judgment was for plaintiff, subject to dower, the curatrix’s deed being declared invalid and the leases forfeited. The consideration was ordered repaid to Byrd, but he was required to account for royalties accruing prior to the bringing of this action. -

From the judgment all parties appeal.

1. The order of sale upon which the deed of the curatrix to Byrd is grounded was made after the adjournment of the November, 1906-, term of the Jasper county probate court and prior to the convening of Jhe February, 1906, term, and without - adjournment to the day upon which it was made.

It is settled law that the “orders and judgments of the probate courts, relating to matters within their jurisdiction, will be presumed to have been regularly made and entered until the contrary is made to appear” (Macey v. Stark, 116 Mo. l. c. 494), that such orders and judgments are no more subject to collateral attack than tbe orders and judgments of courts of general jurisdiction (Cox v. Boyce, 152 Mo. 576; Bray v. Adams, 114 Mo. l. c. 492), and that, “in tbe absence of any showing on the subject it should be presumed” that a special term of the probate court, at which an assailed order or judgment of the court was made or entered, was properly and lawfully held. [State ex rel. v. Nolan, 99 Mo. 569.]

Into this case, however, presumptions born of silence cannot come, since the record of the probate court is here and speaks the facts. Had not the record been put in evidence it would have been presumed sufficient to support the order of sale (Price v. Real Est. Assn., 101 Mo. l. c. 116); but since the record is in evidence, it cannot well be presumed to be other than it is. [Freeman on Judgments, sec. 125; Ely v. Tallman, 14 Wis. l. c. 33; Wade v. Hancock, 76 Va. l. c. 625.]

The entry which purports to be an order of sale is preceded by the recital that “court met pursuant to the order of the judge in vacation,” but no such order was entered on the records or elsewhere, nor had any minute or memorandum thereof been made by judge or clerk. Judges possess no inherent power to convene their courts, as such, in vacation. Such power, unless created by constitutional or statutory authority, does not exist.

It is not asserted that the article relating to the general powers and duties of courts of record (Art. 1, chap. 35, Bu S. 1909) confers any such power as the judge of the Jasper county probate court attempted to exercise, but it is insisted that section 4060, Bevised Statutes 1909’, authorized the course pursued. That section relates to probate courts and reads as follows:

“Said court shall hold four terms annually, commencing on the second Monday of February, May, August and November, and may hold special and adjourned terms at any time when required: Provided, however, that in all counties in which courts for the transaction of probate business are not held in more than one place, then in such cases courts shall be held at the times and places now designated or provided by law; said courts may alter the time for holding their stated terms, giving notice thereof in such manner as to them shall seem expedient.”

The question presented is whether ' the clause, “and may hold special and adjourned terms when required,” is to be construed to mean that the probate judge, without adjournment to a given day, without a previous order and without notice, may seat himself upon the woolsack and by mere force of transacting business which cannot be transacted in vacation, call into being a term of the probate court.

Before the statute is construed to invest' the probate judge with such untrammeled power, it ought to be subjected to somewhat careful scrutiny. No such power is given the circuit judge, nor the county judges. Both the circuit and county courts may be convened only by authority of express statutes.

Long prior to the enactment of section 4060 (Laws 1877, p. 230) the statutes (R. S. 1909, secs. 3869, 3870) had applied the words “special” and “adjourned” to terms of courts of record held' pursuant to orders made in term time and had used them interchangeably. In 1877, this court held that a session of the circuit court designated on the record as a special term would, under certain circumstances, be presumed, in the absence of a contrary showing, to be a term held pursuant to an order or proclamation of adjournment and not a special term called in vacation under section 3871, Revised Statutes 1909. [Hicks v. Ellis, 65 Mo. 176.]

Further, numerous sections of the statutes (Secs. 9, 10, 25, 29, 31, 92, 126', 136, 404, 405, 406, 407, 409, 410, 411, 412, 413, 415', 424, 437, R. S. 1909] specifically authorize the probate judge to transact designated business in vacation and other sections (475', 534) provide for the calling of special terms in vacation in certain cases, all of which would seem unnecessary if the probate court is in session whenever it assumes to act.

It is to be observed, also, that section 4060 does not provide that the judge of the probate court may call or hold special terms when necessary, but that “said court . . . may hold special and adjourned terms at any time when required.”

In every other case which has come under our observation in which the courts of this State are empowered to convene during vacation without previous order of adjournment during term time (Secs. 3871, 4038, 3902, 475, R. S. 1909) provision is made for the calling of the special term by the judge or majority of judges of the court in question. In the case of this court (Sec. 3902, R. S. 1909) both the terms held by order of the court in term time and those called by a majority of the judges in vacation are designated as “special terms.”

Section 4060 authorizes “said court” to hold special terms as required. “An order made in vacation is not an order of the court as there can be no such thing as a constructive session of a . . . court” (Cook v. Penrod, 111 Mo. App. l. c. 137), and we think that the provision that the court may hold special and adjourned terms when required necessarily presupposes some action on the part of the court as such and falls short of investing, the judge with the power to convene his court at will.

Interpreting the clause in question in section 4060 in the light of the legislative provisions referred to and the cases cited, we are of the opinion that the probate court of Jasper county was not in session at the time the order of sale, upon which the deed to Byrd depends, was made. A contrary holding would, in effect, mean that the probate courts of this State are always in session. This we are unable to harmonize with the legislative will as expressed in the statutes cited.

Numerous cases are cited as supporting a contrary conclusion. None of them go to the length of holding that a court constituted as are our probate courts, possesses the inherent power to convene in vacation without an order of adjournment to that end, nor would we follow them if they did so hold.

Those cases holding that the records of a court cannot be attacked collaterally by parol are not in point, since no such attack was made in this case. The clerk’s testimony was not open to this objection, nor would it have made any difference had the clerk found a vacation order or minute of the judge attempting to convene a special term of court, since we hold no power is vested in the probate judge to so convene his court, save in special cases which do not include that in hand.

Nor does the fact that Harriet E. Carter, the curatrix, appeared and attempted to file her jDetition for order of sale on February 6th estop either her or her ward from asserting that no court was in session on that day. The trouble with the argument on this head is that it assumes the existence of a court, in session at the time mentioned, conceding merely its defective organization. But no such court existed or could have existed, in the face of the record previously made by the court itself, under the construction we have given the statute. It is not necessary to discuss those cases in which the appearance of parties at a term held pursuant to the irregular exercise of a statutory power to call such term is held to estop them' to question the validity of proceedings at such term. No such question is presented by this record. Nor are those cases in point which uphold the exercise by the judge in vacation, under specific statutory authority, of powers usually exercisable only in term time.

An order of sale of a? minor’s real estate can be made only by tbe court lawfully in session, and neither the judge, nor the curatrix, nor both of them, can create a term of court for that purpose. Nor can a term of the probate court be estopped into existence.

The order of sale was a nullity and consequently the deed of the curatrix to Byrd was void.

2. In view of what is said in the preceding paragraph, it becomes unnecessary to examine the correctness of the conclusion reached by the trial court that the deed to Byrd was void by 'reason also of fraud practiced in procuring it.

3. The fact that defendant Byrd had purchased and owned the dower interest of A. 'G-. Carter’s widow in the one-fifth of the tract which this suit is brought to recover, was no defense (Sell v. McAnaw, 138 Mo. l. c. 273) nor does the judgment, as we construe it, affect in anywise defendant Byrd’s right and title to such dower interest. The judgment is to the effect that “plaintiff have and recover possession of said premises, subject to the dower interest of plaintiff’s mother. ’ ’ This means nothing more than that plaintiff’s possession is subject to that interest whether it is still hers or has been conveyed. The phrase, “of plaintiff’s mother,” is descriptive of the source of the interest and not declarative of the present ownership. If defendant Byrd has purchased the dower interest, the judgment leaves plaintiff’s possession subject to that interest in Byrd’s hands.

4. The leases from A. G-. Carter and from Harriet E. Carter, curatrix, contained a clause providing that “any failure to comply with and perform the requirements of this lease in good faith at any time shall end and determine the same and the said parties of the first part may declare an ouster, and re-enter upon and hold said demised premises.”

Ejectment will lie for the recovery of premises held under leases of this character when the lessee fails in Ms duty to observe Ms covenants. [Brooks v. Gaffin, 192 Mo. 228; Id., 196 Mo. 351.] There was substantial evidence tending to show a breach of the conditions of the leases, and the court’s judgment for possession involved a finding that the leases were forfeited. That finding cannot be. inquired into here. [Scanlan v. Gulick, 199 Mo. 449.]

5. A lease from S. E. Carter to one Davis, executed in 1904, covering eighty acres of the land in suit, was admitted in evidence over the objection and exception of defendants. No complaint of this ruling is made in the briefs, but it is insisted that the judgment must be reversed because Davis was not a party defendant. The evidence does not show that Davis was in possession under the lease mentioned at the institution of this suit. Consequently, there was no need of joining him as party defendant. Further, his rights, if any, are not affected by the judgment and no question concerning them can be determined in this case. Neither does it appear that Class, also mentioned in the evidence, was in possession of any part of the land in suit when the suit was brought.

6. It is urged that it was error to render a joint judgment against the lessor and his tenants, the latter being in possession of different parts of the property sued for. No judgment for damages, rents or profits, was rendered except against Byrd, who was the lessor, and as to him the judgment merely requires him to account for royalties received. Assuming that he should not have been joined with his lessees in the first instance, still, since he answered without objection on that score and prayed and obtained affirmative relief, he cannot now complain. [Mann v. Doerr, 222 Mo. l. c. 13, et seq.] Nor can the lessees, not having raised the question below, be heard to insist upon it here. [Sutton v. Casseleggi, 77 Mo. 397.] In view of these considerations, the effect of the amendment of 1889 to section 1732, Revised Statutes 1909', with regard to the propriety of joining the lessor and tenant in ejectment need not be discussed, nor is it necessary to discuss in this case the ruling in Mann v. Doerr, supra, that the lessor cannot be joined as defendant without his consent unless in actual possession. [See Cox v. Jones, 229 Mo. l. c. 60-61.] However, in view of the conclusion indicated in paragraph eight, infra, the question discussed in this paragraph cuts but little figure in the case.

7. The plaintiff appealed from that part of the judgment which adjudges the repayment to Byrd of the consideration for the deed executed by his curatrix and herein held invalid. Under the circumstances of this case, and since the plaintiff has become the-beneficiary of the payment, the point is ruled against him. [Bone v. Tyrrell, 113 Mo. l. c. 187.]

8. There is no evidence that defendants S. E. Carter and S. Kyger were in possession of the land at the time of the institution of the suit. Their answer, a general denial, put the possession in issue (Llewellyn v. Llewellyn, 201 Mo. 303) and the demurrers to the evidence separately offered by them should have been sustained. In accordance with the power vested in this court by the statute (Sec. 2083, R. S. 1909; Stotler v. Railroad, 200 Mo. l. c. 150; Bensieck v. Cook, 110 Mo. l. c. 183; State ex rel. v. Tate, 109 Mo. 265), we reverse the judgment as to the defendants S. E. Carter and S. Kyger.

In all other respects the judgment is affirmed.

Broivn, G., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.