author: BROWN, C. PER CURIAM. WOODSON, J. PER CURIAM.

text:
    LEANDER J. MARSHALL et al., Appellants, v. NORMAN N. HILL, JR., et al.
    In Banc,
    November 26, 1912.
    1. PETITION FOR REVIEW: Requisites: Treated as Answe.r A petition filed by parties against whom, as defendants, final judgment has been entered under Sec. 650, R. S. 1899, ■which petition alleges in detail the existence of the facts set forth in See. 777, R. S. 1899, that the petition upon which the Judgment complained of was obtained is untrue in some material matter, and that the defendants have and then had a good defense thereto, setting forth such defense and closing with the requisite prayer for the setting ■ aside of the judgment and with a verification, will be taken as a petition for review under Secs. 777, 780, R. S. 1899, despite the fact that it makes an additional party and transfers one party to the opposite side, and, having been treated below as an answer, under Sec. 780, R. S. 1899, it will be so treated by the Supreme Court.
    2. PATENTS TO LAND: Erroneous Description: Corrected by Government: Intermediate Conveyance: Patentee a Trustee. Where a patent .from the government errs in its description of the land granted, and the patentee conveys the land hy warranty deed with the same error, said patentee, upon subsequently obtaining another patent expressed by its terms to be “issued in lieu” of the earlier one “in which the description of the land was erroneous,” holds the legal title in trust for his grantee.
    3. -: -: -: Limitations. One who obtained in 1872 a patent from the government which wrongly described the lands attempted to be granted, can gain no title by the Statute of Limitations as against other claimants to the land until and after the date of issuance of a corrected patent. Until that time the legal title remains in the government and as to it there is no limitation.
    4. -: -: -: Laches. The Statutes of Limitations establish the only limitation, founded upon time alone, of the right to bring an action at law or a suit in equity. Time is, however, an important element in the defense of laches, a creation of equity designed to meet those cases1 in which the duty to move promptly in the assertion of a right arises out of the corresponding right of the adverse party to be protected from some injury that would result from delay.
    5. -: -: -: -: Facts of Case. In 1872 defendant Hill applied for a patent to certain lands and obtained one which incorrectly described them. In 1874 he made and delivered a warranty deed to L. J. Marshall containing the same description as that in the patent. L. J. Marshall deeded the land to his mother. In the eighties lead mines began to be opened near the land in question and in 1889 Hill began to pay taxes and cut wood on the land attempted to be patented by him. In 1890 he took a quitclaim deed from a brother of L. J. Marshall to the land by a proper description, and in 1898 he procured from the government a corrected patent. In 1905 he brought suit under Sec. 650, R. S. 1899, to quiet title, obtained service by publication against the heirs of L. J. Marshall, who were all nonresidents, and had judgment. In 1906 the defend ants in that suit instituted this suit by filing a petition for review, to set aside Hill’s judgment, and to decree the title in them. Hill asserts that the plaintiffs are barred by laches. Eeld, that, under the circumstances of this case, Hill having, after the discovery of the valuable nature of the land, assumed a hostile attitude, the suit of plaintiff is not barred by laches.
    6. DEED: Not to be Avoided by Maker Because of Carelessness in Making. A person will not be permitted to overthrow his own solemn deed, which he made thirty-two years before, and for which he received a cash consideration, by a statement showing nothing more than carelessness in the making thereof.

      7. NOTICE: Actual: Of Outstanding Equities. One who has actual notice of an equitable claim affecting the legal title to land he is about to purchase, completes the transaction and pays the purchase price at his own risk. He has actual notice when he knows of the existence of the adverse claim of title, or is conscious of having the means of knowledge, though he may not use them. ' ■
    Appeal from St. Francois Circuit Court. — Hon. Gharles A. Killian, Judge.
    Reversed ahd eema:nded {with directions).

      H. J. Gcmtwell, Warren D. Isenberg and A. C. Ketring for appellants.
    (1) The petition in this cause alleges fraud, the evidence conclusively establishes fraud in the procun ing of the judgment and in all of the acts of Hill prior thereto. A court of equity would have had and still has power to set aside a decree obtained under the circumstances herein, and we are strictly within the terms of the statute, having brought our petition for ■review within three years and defendants herein are not and cannot be prejudiced by reason that we assume the laboring oar and set up all of the facts in order to avoid a multiplicity of suits. Miles v. Jones, 28 Mo. 87; Baldwin v. Dalton, 168 Mo. 25; Irvine v. Leigh, 102 Mo. 200; Sec. 777, R,.S. 1899. (2) The patent inured to the benefit of Hill’s grantee, i. e., Leander J. Marshall and his successors in interest. As soon as patent was issued a resulting trust arose in their favor. Newkirk v. Marshall, 10 Pac. 571; Stoddard v. Chambers, 2 How. (U. S.) 318; Stephenson v. Smith, 7 Mo. 618; Hnnsucker v. Clark, 12 Mo. 334; G-roves’ Heirs v. Fulsome, 16 Mo. 543; Davis v: Filer, 40 Mich. 310; Sensenderfer v. Kemp, 83’ Mo. 581; "Widdicombe v. Childers, 84 Mo. 382; Johnson v. Flutsch, 176 Mo. 452; Hedrick v. Beeler, 110 Mo. 91; James v. Groff, 157 Mo. 421; Damsekroeder v. Thias, 51 Mo. 100. (&) The deed from Hill to Leander J. Marshall, although acknowledged before a justice of the peace in Ohio, has been recorded thirty years, and the record was competent evidence of its execution and all it contained. Testimony of Hill is not sufficient to overcome the proof of his deed. Eclivie v. Sheppard, 179 Mo. 382; Secs. 6314 and 6318, E. S, 1909; Secs. 3119 and 3123, E. S. 1899; Brown v. Oldham, 123 Mo. 621; Wells v. Presey, 105 Mo. 165. (4) Limitation did not run until legal title to the southeast quarter of the southeast quarter emanated from the Hnited States. Gibson v. Chouteau, 13 Wall. 92. Even though Hill had taken actual possession of this land (which he did not) at the time of the issuance of the patent to the southeast quarter of the southeast quarter, the Mar-shalls would not now be barred to maintain an action against him, — ten years not having elapsed. Mere delay will not prevent recovery in equity. The statute does not begin to run against an action to enforce a resulting trust growing out of an entry of public lands before the patent is issued, and then only when defendant is in possession. Burén v. Burén, 79 Mo. 538. The statute will not run in favor of one in possession of real estate so long as the legal title remains in the Hnited States. Smith v. McCorkle; 105 Mo. 135; Cummings v. Powell, 97 Mo. 524. Even this is true though ejectment might have been maintained, and no ejectment was possible because Hill did not occupy it. Smith v. Madison, 67 Mo. 694; Hammond v. Johnson, 93 Mo. 198; Cooper v. Heal, 114 Mo. 527: (5) To constitute a person a bona-fide purchaser for value without notice, the purchase money must be paid before notice is received. Arnholt v. Hartwig, 73 Mo. 485. This plea is an affirmative allegation in any event and must be affirmatively proved. Young v. Schofield, 132 Mo. 650. The Doe Eun Lead Company had an actual and constructive notice and is not a bona-fide purchaser for value without notice. Meyer v. Bloom, 80 Mo. 179'; Insurance Co. v. Smith, 117 Mo. 261; Hedrick v; Railroad, 120 Mo. 516; Widdi-combe v. Ckilder, 84 Mo. 382; Gibson v. Lair, 37 Mo. 188.

      William Henry White for respondents.
    This is an equity cause. In order that appellants may have appellees’ title as prayed, it is necessary, in effect, that there be a specific performance of the supposed agreement between Hill and Leander J. Marshall made in 1874 — thirty-nine years before the petition was filed — then that the deed of that ancient date be reformed as well as the one to Mrs. Marshall one year later and also the patent. It4 is also necessary, in effect, to cancel the Doe Run Lead Company’s option under which it in good faith took the usual long mining chances and expended more than $3000 and found lead, which gives the land its first real value to its owner or to the community. (1) Laches. Petition was demurrable. The facts are shown fipon the face of the petition — that for eight years appellants were apprised of every fact. Burgess v. Railroad, 99 Mo. 496; Moreman v. Talbott, 55 Mo. 392. Even where the delay is not explained satisfactorily, demurrer lies. Bliss V. Pritchard, 67 Mo. 181; McQuiddy v. Ware, 20 Wall. 19; Marsh v. Whitmore, 21 Wall. 184; Badger v. Badger, 2 Wall. 94; Murphy v. De France, 105 Mo. 53; Wendover v. Baker, 121 Mo. 273. Defense is pleaded, specially. Bliss v. Pritchard, 67 Mo. 181. Within statutory period. Note the short periods in the following cases. This is a tract of worthless land suddenly become valuable by Hill’s industry and intelligent management and attention and the Doe Run Lead Company’s money. The statutory period had more than elapsed and by analogy appellants are barred. Kline v. Vogel, 90 Mo. 239; Burgess v. Railroad, 99 Mo. 496; Banks v. Burnham, 61 Mo. 76; Lan-drum v. Bank, 63 Mo. 48; Burdett v. May, 100' Mo. 13 ; Kroenung v. Goehri, 112 Mo. 641; Parker v. Yan-hoozer, 142 Mo. 621; Patterson v. Hewitt, 195 U. S. 309; Hatcher v. Hatcher, 139 Mo. 626. Repudiation. Prompt action is required after notice of repudiation. Four years is too long — even two years. Appellants had the best of all notice on July 21, 1896, of Hill’s claim to'this very land and of all the grounds of his claim. Their petition was filed more than ten years later, on December 11, 1906'. Banks v. Burn-ham, 61 Mo. 76; Patterson v. Hewitt, 195 U. S. 309. Increased value. The land was worthless when entered in 1874. It had only a speculative value until lead was discovered under the option from Hill after the second decree. Appellants contributed nothing, not even taxes; defendants everything and took chances which gave it its real value to the public and the defendants. Moreman v. Talbott, 55 Mo. 392; Pomeroy v. Fullerton, 131 Mo. 581; 16 Cyc. 161, note 6; lb. 162, note 7; Hatcher v. Hatcher, 139 Mo. 626. Two years’ delay was held fatal in one pase. Reel v. Ewing, 71 Mo. 17. Thirty-two years’ delay. The petition was filed December 11, 1906. The first deed sought to be reformed is dated in 1874 — thirty-two years before; the second in 1875 — thirty-one years before. No case can be found in the books where such delay has been excused. Fifteen years ’ delay unexplained is fatal, even in case of fraud and where the deed was procured from one insane. Norris v. Haggin, 136 H. S. 386. As between trustee and cestui que trust, twenty years is too long. Hammond v. Hopkins, 143 U. S. 224. (2) Specific Performance. Based, as the petition is, upon Hill’s alleged thirty-two year old contract with Leander J. Marshall to convey the whole interest in this land to him which it is now sought to specifically enforce, the following elementary principles are called to the attention of the court: In discretion of court. 4 Pattison’s Digest, p. 3303’. Never granted where inequitable. 4 P'attison’s Digest, p. 3303, No. 12; Mc-Elroy y. Maxwell, 101 Mo. 294; 16 Cyc. 162, note 7. Estoppel, permitting’ another to improve. Allen v. Mansfield, 108 Mo. 343. Character of proof, see “Mistake.” (3) Mistake. Proof. The proof must he clear and convincing; mere preponderance of evidence is not sufficient; it must he free from reasonable doubt; a mistake on both sides and sufficient to establish a trust. 3 Pattison’s Digest, p. 2388, No. 133; Same, Vol. 4, p. 3313, No. 191; Maddrell v. Riddle, 8 Mo. 31; Allen v. Carter, 8 Mo. App. 585; Tesson v. Insurance Co., 40 Mo. 33; Dickson v. Railroad, 168 Mo. 90; Clark v. Railroad, 127 Mo. 255. Correction. The correction must make the instrument over to conform to the real contract. The court cannot make a contract for the parties. Downing v. McHugh, 3 Mo. App. 594; Sweet v. Owens, 109 Mo. 1; Parker v. Vanhoozer, 142 Mo. 352; Shrayer v. Niekell, 55 Mo. 264; Miller v. Railroad, 162 Mo. 424. Mistake on one side is ground for rescission, not for reformation. 24 Am. & Eng. Ency. Law (2 Ed.), p. 618, note b. Correcting description. This is under same rule as further assurance. Hausmann v. Adams, 65 Mo. App. 273. (4) Limitations. Thirty-year statute. Equitable title passed from United States, May 6,1872, more than ten years. Hill was in possession cutting wood from June 1, 1895, to March 12, 1896; he made a survey in the spring of 1903 and the corner stones are still standing; he recorded the subdivision, 1903; the assessment for taxes was as “Rose Hill” and by lots and blocks to date, more than one year before suit was filed in 1906. He has paid all taxes assessed since entry in 1872, The Marshalls have never been in possession and have not paid taxes for thirty years; have never paid any. Collins v. Pease, 146 Mo. 135; Shu-mate v. Snyder, 140 Mo. 84; P'haris v. Bayless, 122 Mo. 116; Fairbanks v. Long, 91 Mo. 628; Rollins v. Me-Intire, 87 Mo. 496; Mansfield v. Pollock, 74 Mo. 185'; DeHatre v. Edmonds, 200 Mo. 275.
   BROWN, C.

In February, 1905, tbe defendant Norman N. Hill filed bis petition in tbe St. Francois Circuit Court returnable at tbe next May term thereof, in words and figures as follows:

“Norman N. Hill, plaintiff, v. Charles R. Marshall; Leander J. Marshall, John Marshall and the unknown heirs, grantees and devisees of John Marshall ; Della Lashley, the unknown heirs, grantees and devisees of Austin Marshall, deceased; the unknown heirs, grantees and devisees of Stanhope Marshall, deceased; the unknown heirs, grantees and devisees of James Marshall, deceased; Adeline Boggs and the unknown heirs, grantees and devisees of Adeline Boggs; and the unknown heirs, grantees and devisees of Sarah Marshall, deceased, defendants.
“Plaintiff states that he claims to own and does own, in fee simple, the following described lands situate in the county of St. Francois in the State of Missouri, to-wit: .
“All of the southeast quarter of the southeast quarter of section 1, township thirty-six north, range four east, containing about forty acres.
‘ ‘ He further states that he is informed. and believes that the above- named defendants claimed to have and own an interest in said lands.
“Plaintiff further states that defendants are nonresidents of the State of Missouri and cannot be served with process in said State in the manner prescribed in article four, chapter eight, Revised Statutes of Missouri 18991.
“Plaintiff states that he verily believes there are persons as hereinafter set forth, who are interested in, or who claim to be interested in, the subject-matter of this petition, as heirs, grantees and devisees of the parties named in this petition and whose names he cannot insert because unknown to him.
“He further states that Adeline Boggs, formerly Adeline Marshall, and John Marshall, are children and heirs of Sarah Marshall, deceased, aforesaid; that he has no definite knowledge as to whether the aforesaid Adeline Boggs and John Marshall are still living, and hence their unknown heirs, grantees and devisees are máde parties to this action.
“He further states that James Marshall, deceased, Austin Marshall, deceased, and Stanhope Marshall, deceased, are also children and heirs of the aforesaid Sarah Marshall who died more than twenty years ago; that the said unknown heirs, grantees and devisees of Sarah Marshall and the unknown heirs, grantees and devisees of Adeline Boggs, John Marshall, James Marshall, Austin Marshall and Stanhope Marshall, claim title to the aforesaid premises, as plaintiff is informed and believes, by and through the aforesaid Sarah Marshall as the common source of title, the exact nature of which claim this petitioner is unable to state.
“Plaintiff therefore prays the court to determine the estate, title'and interest in said real estate of the parties herein respectively, and to define by its judgment or decree the title, estate and interest of the parties severally in and to such real estate.
“Norman N. Hill being duly sworn upon his oath states that the matters and things contained in the foregoing petition are true to the best of his knowledge and belief and that he verily believes there are persons, as described in said petition, claiming to own an interest in the lands described in said petition whose names he cannot insert because unknown to him, and their interests are set forth and described so far as his knowledge extends.
“Subscribed and sworn to before me this. day of February, 1905.” .

Upon ibis an order of publication was made and published, returnable' on the first day of the May term. None of the defendants appearing at that time, default was taken, and on the 23d day of August, 1905, a final decree was entered, reciting that the plaintiff was the absolute owner in fee of the land described in the petition, that be bad been in possession of, exercising acts of ownership over, said lands since the year 1894, and that the defendants nor either of them bad any estate, title or interest therein; and adjudging that all title or claim of right of defendants and each of them in and to said lands be vested in Hill, absolutely and in fee simple.

On October 20, 1906, the original petition in this case was filed by Leander J. Marshall, Mrs. W. S. Marshall, Adeline M. Boggs, and Adella M. Lasley, as plaintiffs, against Norman N. Hill, Jr., Charles R. Marshall and Doe Run Lead Company. The defendants were all notified and appeared. Mrs. Boggs conveyed her interest to the plaintiff Leander J. Marshall, and died. Leander J. Marshall also died and the action was revived and continued in the name of his daughter and sole heir, Winifred Marshall Dittmar, and an amended petition was filed in May, 1907. This petition admits the truth of the allegation in the petition of Hill against Marshall that the defendants in that petition claimed to own an interest in the lands, and denies specifically each and all other allegations thereof. It charges that these plaintiffs are the absolute owners of the land in controversy, that the suit was a fraudulent scheme to deprive them of their property, that the statements in the petition by which jurisdiction was attempted to be obtained by publication were false, that the notice by publication is void upon the face of the record, and that the judgment was obtained by false representations and upon false testimony. They set up their 'own title substantially as follows:

On or about May 6, 1872, Hill entered the land in question at the United States Land Office; that by an error the certificate of entry described it as “the southeast quarter of the norths ast quarter of section 1, township thirty-six north, range four east of the fifth principal meridian; that on August 30, 1872, a patent was issued to Hill in which the same error was made; and that on or about the 19th day of June, 1874, the said Hill sold the land so entered to plaintiff Leander J. Marshall and executed and delivered to him a warranty deed in which the land was erroneously described as the southeast quarter of the norths ast quarter instead of the southeast quarter- of the southeast quarter of said section; that at the time of making this conveyance Hill delivered to Leander J. Marshall the original patent above mentioned, and afterwards, on August 31,18751, Leander J. Marshall for a valuable consideration conveyed the same land by the same erroneous description by warranty deed to Sarah S. Marshall, his mother, from whom plaintiffs deraign their title. That in all these transactions the southeast quarter of the southeast quarter was intended, but by mistake of all the parties it was described as the southeast quarter of the norths ast quarter. That there is no such tract of land as the southeast quarter of the north&a,st quarter of said section; that in March, 1898, Hill, who was formerly of Richland county, Ohio, but was then living in Washington, D. C., applied for and obtained from the United States a patent granting to him the said southeast quarter of the southeast quarter of section one, township thirty-six, range four, on the solé ground that he had entered the said land as above stated, and that by mistake the patent therefor had described it erroneously. The said last patent states upon its face that it was made to rectify said mistake. The petition also charges that Hill procured from Charles R. Marshall, one of the heirs of Sarah S. Marshall, ■ a quitclaim deed to the lands in controversy dated Jnne 23,- 1890', which plaintiffs believe was procured by fraud and misrepresentation, and could convey no greater interest than the undivided one-sixth interest owned by the grantor as one of the heirs of Sarah S. Marshall. That all the acts charged in the petition constituted a fraudulent scheme, having for its object the unlawful acquisition by Hill of the land in controversy. Charles E. Marshall is made a defendant in order that his interest may be adjudicated in the suit, and the Doe Run Lead Company to adjudicate their claim on account of an option to purchase the same land from Hill. The petition concludes as follows:

^Wherefore, plaintiffs pray the court to set aside the decree entered in the cause aforesaid; to permit the plaintiffs herein to controvert by proof the allegations of the petition in said cause, and to support the allegations herein, and upon testimony being heard, to declare the title which may have been conveyed by the United States by the patent of March 21, 1898, to Norman N. Hill, Jr., of southeast quarter of southeast quarter of section one, township thirty-six north, range four east, to be vested in the plaintiffs"as herein set forth. Plaintiffs’ interest herein to be decreed in said lands as herein set out; that is, to Winifred Marshall Dittmar two-fifths; Mrs. W. S. Marshall one-fifth; Adella M. Lasley one-fifth; Charles E. Marshall one-thirtieth; and to Norman N. Hill, Jr., or Charles E. Marshall, as the court may determine, five-thirtieths; and for all other and further equitable relief.” Petition was duly sworn to.

Hill answers that Charles E. Marshall repaid him one-half the amount of money he had paid for the land and that he supposed he had conveyed him one-half the land but denies any knowledge of the deed to Leander J. Marshall, although he does not deny its execution. Pie also pleads adverse possession of the land for more than ten years prior to the filing of the petition, and the ten-year Statute of Limitations.

• The Lead Company sets up its option to purchase from Hill, upon which it has paid one hundred dollars, and expended in prospecting about three thousand dollars more, and asserts its willingness to pay the purchase price, fifteen thousand dollars, as soon as it can get title. It also says it has no knowledge of the truth or falsity of the matter set up in the petition and answer of Hill, except such as it pleads, and such records and facts as the law would charge it with knowledge of.

The answer of Charles R. Marshall set up, among other things, that the quitclaim deed of June 23, 1890, was obtained by Hill through fraud and misrepresentation and asks that it he set aside. To this answer Hill filed a motion to strike out that part referring to, and asking relief on account of, the quitclaim deed, on the ground, among others, that “in this cause Norman N. Hill can set up no title other than that which he set up, or might have set up, in his original petition in this suit, the decree in which is herein sought to be vacated.” All the matters pleaded in the several-answers were properly put in issue.

' The facts relating to the title to the land in controversy are as follows: On May 6, 1872, Norman N. Hill applied at the local United States Land Office at Ironton, Missouri, to enter the southeast quarter of the southeast quarter of section one, township thirty-six north, range four east, in St. Francois county, Missouri. His application is now on file in the local land office and the plat hook shows the entry (43,783) by its proper description. The register of cash entries and the tract hooks of the local office show the entry to cover the S. E. %, N. E. % of said section, hut the letter “S” appears written in pencil over the “N,” changing the description to the S. E. S. Eu%. The acreage of the last described tract (41.02) appears on tlie records throughout. The certificate was erroneously made out as the southeast quarter of the northeast quarter, which was covered by the claim of one Joseph G-errard, Jr., which had been patented to him June 6, 1836. Patent was issued to Hill by the same erroneous description August 30, 1872'. Hill conveyed the southeast quarter of the northeast quarter to Leander J. Marshall, June 19,1874, and the deed was, on May 18, 1875, duly recorded in St. Francois county. Leander J. Marshall conveyed the same land to Sarah S. Marshall, his mother, August 31, 1875', by warranty deed, recorded January 4, 1876. The plaintiffs in this case are the heirs of this grantee, who have acquired her interest by inheritance and transfer between themselves, in the proportions stated in the prayer of the petition.

The Flat Eiver lead district began to develop in the 80’s, the first map of it having been made, as disclosed by the record, in 1882. In 1886 and 1887 lands in the vicinity of the tract in question began to sell, and in December, 1889, Mr. Hill, who was then occupying a position in the pension office in Washington, seems to have become aroused, and paid thirty-eight dollars and some cents in taxes which had been assessed against the tract in controversy from 1874 to 1889 inclusive, and has since paid the taxes from year-to year, both before and since the emanation of the legal title from the United States, up to the time of the trial. In 1890 the defendant Doe Bun Lead Company was working on the Cofman and Hampton lands adjoining, and Judge Taylor was working his land east of it. June 23 of that year .Hill sent a lawyer named Sewall of Mansfield, Ohio, who is now dead, to Charles B. Marshall, and procured a quitclaim deed to the same land described in the second patent. This is the deed that is now being attacked by the defendant Marshall as fraudulent. He testifies that it was procured by misrepresentation, while Hill testifies that he obtained it because Charles B. Marshall had, in 1874, refunded half the cost of the land to him and he had, or supposed he had, for .that consideration, conveyed to him an undivided half of the tract described in the patent.

December 17,1894, Hill wrote to the Commissioner of the General Land Office as follows: “I am the owner of the S. E. % of the S. E. % of Sec. 1, Tp. 36, B. 4 E., in St. Francois County, Missouri. The original patent has been lost. I desire to know what steps are necessary to secure a copy of said patent. The land was entered by me in 1872, I believe about May of that year and I have owned it since that time. ’

This application proceeded with voluminous correspondence. February 25, 1895, the commissioner called upon Mr. Hill for an affidavit showing loss of the patent issued in case of C. E. 43,783, also conveyance from the United States of the land described in that patent, and an abstract showing that such land was free from all incumbrances, mortgages, assignments and conveyances, to which Hill replied with an affidavit that the patent had been lost and an abstract as follows: “Abstract of title tp S. E. % of S. E. 14, Sec. 1, Tp. 36 N., B. 4 E., United States to Norman N. Hill, entry dated May 6, 1872. S. E. %, Sec. 1, Tp. 36 N., B. 4 E., Chas. B. Marshall to Norman N. Hill, quitclaim deed, dated June 23, 1890, filed July 2, 18901. Bee. 39', p. 465.”

Further proceedings on this application led to the disclosure of the record of the deed to Leander J. Marshall. To this Mr. Hill answered that the patent of June 6, 1836, under private Land Grant Survey No. 870 to Joseph Gerrard, Jr., had divested the title from the United States,- so that the patent of August 13, 1872, was void, from which it followed that the alleged transfer by him to Leander J. Marshall was void, and that it was also void for the reason that it was obtained covertly and by fraud, and was intended to be and believed to be to Charles B. Marshall who afterward conveyed to him. May 23, 1896, the department ordered notice to Leander J. Marshall, which was afterward given, and the matter proceeded until it was finally determined by the commissioner of the General Land Office February 7, 1896, in a decision containing the following paragraph: “It is true that there is no evidence of service of notice on the Marshalls of the motion for review now pending as is required by Rule of Practice 76, but there are no adverse parties before this office. The Marshalls all claim under Hill’s entry and the conflict of interest between Hill and the Mar-shalls this office has no jurisdiction to determine; they may have conflicting interests, but if so, it will be for another tribunal to decide. Nor did the Mar-shalls come into this case as adverse parties, under Rule 102; they have asked nothing, simply objected to this, office correcting its own error, when, so long as the title to the S. E. %, S. E. % remains in the Government, neither the Marshalls nor Hill can enforce whatever rights they may have.”

Hill testified that he knew nothing of his own conveyance to Leander J. Marshall in 1874, but that he supposed the only conveyance he had executed had been an undivided half to Charles R. Marshall, while Charles R. Marshall testified at the time of the date of this deed he knew Mr. Hill personally and well. He was a justice of the peace in Richland county, Ohio, while Hill lived in Plymouth, Ohio, a part of which was in Richland county and part in Huron county; that his brother Leander J. Marshall made a trade with Hill to purchase the forty acres in controversy, and gave the witness the purchase money to go over to Hill’s home and pay him for the land and have the deed executed, which he did. Mr. John Rank, who had gone to Plymouth with him in a buggy, and is now dead, and Mr. Emery, a citizen of Plymouth, witnessed the deed, which was signed by Mr. Hill and his wife, both, of whom went with him across the street into Richland county and acknowledged it, knowing well what it contained.

Mr. Hill, besides paying the taxes, exercised various other acts of ownership over the land in question, one of them being the sale of wood cut from the land in 1895' to the value of $170.40.

The petition and cross-petition of Charles R. Marshall were dismissed and costs adjudged in favor of Hill and the Lead Company and after the overruling of motions for a new trial and in arrest of judgment, the case is here by appeal.

I. The first question that confronts us relates to the effect of the judgment in the proceeding instituted by Mr. Hill in 1905, against the Marshall heirs, to quiet his title to the forty acres of land in controversy. That proceeding was founded upon the provisions of Sec. 650, R. S. 1899. The only service upon any of the defendants was by publication in a newspaper. None of them appeared; so that if this petition is to be given the effect of a petition for review under Sec. 777, R. S. 1899, the judgment does not stand in the way of the trial of the issues presented by it.

No statute of our State has been subjected to more or greater vicissitudes, both legislative and judicial, than that which relates to the quieting of titles. At the time of the bringing of the Hill suit, sections 647 and 6501 appeared together upon the statute book. The former had stood substantially the same for many years. It contained its own provisions for issuing and serving notice of proceedings under it, and provided, in substance, that any person in possession of real property claiming a freehold, or unexpired term of not less than ten years, might file a petition in the circuit court setting forth this estate, describing the premises, and averring that he was credibly informed and believed that the defendant made some claim adverse to snch estate, and praying for summons to show cause why such person should not bring an action to try such title; and if so, upon the return, duly executed, of the notice as provided, the defendant should make default, or having appeared, should disobey the lawful order of the court to bring an action to try the title, or having brought it should fail to prosecute it with effect, and the court be of the opinion that such person had no valid right in law or equity, it should enter a judgment that he be forever debarred and estopped from having or claiming any right or title adverse to the petitioner. This section carefully guarded the interests of the defendant; and the bringing and effective prosecution of a suit appropriate to try the title claimed by the plaintiff, against all such parties as should be necessary to a determination of the questions involved, would be a complete return to and compliance with the order and judgment of the court. This was a fair and honest law so far as it went. It answered all the purposes of those visibly and openly in the possession of lands who desired to compel those threatening such possession, to put their words into acts, and measure their rights with the possessor. It gave no countenance'to those being out of possession to ripen claims which had never, by any visible act, been brought to the notice of the true owners, by judicial proceedings hidden in the' folds of obscure newspapers. Even as to the cases to which it applied, the courts were admonished to take care of the interest of those who might fail to receive such notice as would enable them to take care of themselves by withholding judgment until they should be of the opinion that there was no valid right, either at law or in equity that required protection.

In 1897 the following section, known in the revision of 189& as 650, was enacted: “Any persoh claiming any title, estate or interest in real property, whether the same he legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property.”

This section alone does not indicate an intention to repeal section 647, in so far as that section authorizes the trying of titles and interests in land by such proceedings and against such parties as should be necessary to a full determination of the questions legitimately involved, nor remove a single safeguard with which it protected an unconscious defendant from the careless or fraudulent use of the drastic remedies it provided. Nor does the repealing 'section (3), providing that “all acts and parts of acts inconsistent herewith are hereby repealed” (Laws 1897, p. 74) indicate any such intention. It has, however, an “emergency clause” in the following, words: “This act being remedial in its character and taking the place of statutes which failed in their object, creates an emergency within- the meaning of the Constitution; therefore this act shall take effect and be in force from and after its passage.” [Id., Sec. 5.]

In Meriwether v. Love, 167 Mo. 514, 519,this court, referring to section 5- already quoted, assumed that “the law-makers unquestionably believed that section 2092 was inconsistent with the Act of 1897, and intended to repeal section 2092, and to provide a more complete and efficient and direct statutory method of determining and quieting land titles.” In this connection the court said: “In Huff v. Land Company, 157 Mo. l. c. 69, it was pointed out that the Act of 1897 was apparently enacted in consequence of what was said in the Northcntt case” (Northcutt v. Eager, 132 Mo. 265) ‘ ‘ about section 2092 not being broad enough to authorize the life tenant to make the remainderman, who claimed under, and not adverse to, the life tenant, bring a suit to try his title. ’ ’ This case, was followed in Hudson v. Wright, 204 Mo. 412, 423, and in Powell v. Crow, 204 Mo. 481, 486, the act was further construed in an opinion by YaultaNt, P. J., by which it was held that in proceedings brought under it the court was confined to trying the issues and affording the remedies authorized by its terms. The attention of the Legislature does not seem to have been again directed to any fault or imperfection in this law until by the Act of June 1, 1909, it not only enlarged the jurisdiction in such cases, but in express terms gave the. parties the right to present to the court for adjudication, such questions, germane to their respective titles, as they see fit. Whether this act was in any way influenced either by the opinion of this court in Powell v. Crow, supra, or in Richards v. Coal & Mining Co., 221 Mo. 149, 173, while of interest as a matter of curiosity, has no bearing upon this case, which had already been tried. ,The question here is whether the petition of these plaintiffs should be considered from the standpoint of a petition for review under Secs. 777, 780, R. S. 1899. These sections require (1) that it should state the existence of the facts set forth in section 777, (2) that the petition of plaintiff upon which the judgment complained of was obtained is untrue in some material matter, or that the defendant has, and then' had, a good defense thereto, setting such defense forth, or both. That it sets out all these matters with the utmost detail, and closes with the prayer for relief prescribed by the statute, namely, the setting aside of the judgment, cannot be denied. These sections require it to be verified and it is verified. True, it makes an additional party, but this is necessary to a complete defense. Charles R. Marshall is transferred to the other side, but this, also, was probably necessary to meet the exigencies of the case. The statute does not seek to control the arrangement of the parties. It names the proceeding a “petition for review, ’ ’ a name created by tíre Legislature to avoid any combination of words encumbered with a definition from the common law or equity jurisprudence of the past. It is highly remedial, and must necessarily accommodate itself to the needs and practice of every proceeding that comes within its scope.

The act under which the suit which it is sought to reopen was brought is equally silent upon this matter of pleading. It only requires that “the institution, prosecution, trial and determination of suits under this act shall conform in all respects to the provisions of the ‘Code of Civil Procedure’ now existing and in force in this State concerning actions affecting real estate.” [R. S. 1899, Sec. 651.] Under this we have held that, although it only permits the person desiring to take advantage of its provisions to “institute an action,” it may be used as a defense as well. [Summet v. Realty & Brokerage Co., 208 Mo. 501, 506 and 514; Lambert v. Railroad, 212 Mo. 692, 706.] The remedy is distinctly given, and the code affords the means to make it applicable in the particular case. So in this case the plaintiffs have in the form of a “petition,” as the statute requires, presented a complete defense to the absolute title set 'up in the petition of Mr. Hill to quiet his title; they have made the parties necessary to the trial of the contest to which they have been invited; they have given the notice required by Sec. 781, R. S. 1899; and have tried the issue so presented. Even if section 780 contemplates that all these things should be repeated in an answer, this petition has been treated as an answer for all the purposes of the proceeding. The arrangement of the parties plaintiff and defendant is of the same inconsequence in this case as in the Summet and Lambert cases, supra. If under the law and evidence the plaintiffs have made out their title, they have the right to have the judgment decreeing Mr. Hill’s title to be good and valid as against them set aside, and to have such relief as they are entitled, in law or equity, to have under their petition and evidence.

II. The title of Mr. Hill depends upon a patent issued directly to him March 21, 1896', which contains the following statement: “This patent is issued m lieu of one dated August 30,1872, in which the description of the land was erroneous, the record of which has been cancelled.” It is not contended that there was any other consideration for its issuance than the money that was paid upon the entry made in 1872, for which the patent was issued purporting to grant the southeast quarter of the northeast quarter of the same section. All the rights that he acquired by virtue of the payment of this money, and of the patent last mentioned, were transferred by him to Leander J. Marshall by the warranty deed dated June 19', 1874, which expressed a consideration of five hundred dollars, and was spread upon the deed records of St. Francois county May 18, 1875. The consideration for the later patent consisted solely of rights belonging to Marshall, so that under the well-settled principles of law applicable to such cases, Hill received and holds the legal title so granted in trust for Marshall, who became, in the manner stated, the equitable owner. [Groves’ Heirs v. Fulsome, 16 Mo. 543; James v. Groff, 157 Mo. 402; Davis v. Filer, 40 Mich. 310; Sensenderfer V. Kemp, 83 Mo. 581; Widdicombe v. Childers, 84 Mo. 382.]

The plaintiffs, his representatives in title, are therefore entitled to the relief asked to the extent of their present interests, unless it has been shown that they have in some way forfeited their right to such relief.

III. Another question preliminary to the consideration of the real merits of the controversy relates to the application of the Statute of Limitations., This pro • ceeding was, for all purposes connected with the application of that statute, beg’un with the filing of the petition on the 20th day of October, 1906, and there does not seem to be any doubt that during the year 1895', and again in 1896, Mr. Hill was selling timber which was being cut and taken from this land. Whether the acts done on the land in connection with this transaction constituted adverse possession as to these plaintiffs, and if so, whether such possession was continuous up to the time this proceeding was begun, are questions which, in the view we take, are not necessary to be decided. The plaintiffs rest their claim for relief upon the theory that by the issue of the patent of March 21, 1898, the legal title to these lands, then first emanating from the government, inured in equity to them, and that the primary object of this proceeding is to ripen that equity into a legal title; and that the State Statute of Limitations had no bearing upon the rights of the parties until the issuance of the patent which divested the title of the United States. The plaintiffs seem to be right in this contention. There is no difference between the question so stated, and that involved in the decision of the Supreme Court of the United States in Gibson v. Chouteau, 13 Wall. 92, which has been consistently followed by this court. [Smith v. McCorkle, 105 Mo. 135; Cummings v. Powell, 97 Mo. 524; Hammond v. Johnston, 93 Mo. 198; Buren v. Buren, 79 Mo. 538; McIlhinney v. Ficke, 61 Mo. 329.] It is not necessary for us to speculate as to whether or not there may be cases in which the Statute of Limitations will take hold upon the right of possession emanating from the government while it retains the naked legal title. We simply say, in the language of this court quoted from Hammond v. Johnston, supra, quoting Smith v. McCorkle, supra, that, “As to the government there is. no Statute of Limitations, and in the G-ibson case it is held that the statute leaves the right of .entry upon the legal title, subsequently acquired by the patent, wholly unaffected by adverse possession; that such possession, either by the plaintiffs or defendants, will not control the legal title. This being so we do not see how the statute can operate as a transfer of the equitable right” (l. c. 142). This language is peculiarly applicable to this case, in which the cause of action is dependent upon the issuance of the patent.

IY. Defendant Hill, proceeding upon the assumption that this is a suit to enforce the specific performance of a contract between himself and Leander J. Marshall, made in 1874, and for the reformation of the several deeds, as well as of the patent, that grew out of it, now urges that the delay of the plaintiffs in seeking a declaration of the trust resulting from the patent of 1898, is to be measured by these earlier transactions and constitutes such laches as to preclude the relief they now seek. In this case they ignore the position of plaintiffs that their equities arise from the transfer to Leander J. Marshall, by the warranty deed of 1874, of the equities arising out of the original entry and erroneous patent. That patent needs' no reformation, because it had borne its fruit — the legal title. The deed needs no reformation because it has borne its fruit, the trust they are now seeking to enforce. If laches is to be imputed it could find in this case no firmer foundation upon which to rest than his own failure, during the twenty years that succeeded the placing of the Marshall deed upon the records, to take notice of its existence. Even when, on February 25, 1895, the General Land Office distinctly called upon Mm for the abstract of title of the tract described in the first patent, he sent instead an abstract of the title to the land in controversy, which did not, of conrse, show that deed. So far as the record shows, he succeeded in keeping from the land department the fact of its execution until January 29, 1896, when one John P. Clark disclosed it. Mr. Hill then stepped from cover, and on April "29‘, 1896', filed a paper in which he claimed that “it was obtained covertly and by fraud.” The department then ordered Mr. Marshall to be notified, and from that time on Mr. Hill fought openly for his patent, contending that the equities between himself and Marshall were for the courts to determine, and the commissioner finally agreed with him as we do now, and issued the patent upon that theory, stating the consideration on its face. He also found that “so long as the title to the S. E. S-. E. 14 remains in the government, neither the Marshalls nor Hill can enforce whatever right they may have. ’ ’

Our Code of Civil Procedure permits but one form of action for the enforcement or protection of private rights and the redress and prevention of private wrongs, and our Statute of Limitations applies alike to all, whether théy were before the enactment of the code called legal or equitable. These statutes establish the only limitation, founded upon time alone, of the right to bring an action of either variety. In the words of Judge Nortoni in Blackford v. Construction Co., 132 Mo. App. 157, 164, “It is certain that mere lapse of time alone is entirely without influence in those eases where the Statute of Limitations does not obtain.” It is, however, an element and an important one in the defense of laches which still remains, a creation of equity designed to meet those cases in which the duty to move promptly in the assertion of a right arises out of the corresponding right of the adverse party to be protected from some injury that would result from delay. These respective rights, growing out of the adverse interests of the parties, are often carefully weighed, and the administration of the doctrine of laches thns often becomes one of the most difficult and delicate branches of equity jurisprudence. All definitions of the doctrine adopted to our system of practice, contain, in some form, statements of this general idea. In Spurlock v. Sproule, 72 Mo. 503, 511, this court said: “In cases where the relief asked may or may not be granted in the discretion of the chancellor, and where a remedy exists at law, the aid of the court may be refused and the party remitted to his action at law on the sole ground of laches. But in cases where the party comes before the court with a clear right entitling him to the relief, there being no remedy at law, something more than mere delay must be shown before the relief asked can be refused, such-as that the party has slept upon his rights till the property sought to be regained has been enhanced in value by improvements made, or that some other matter has'intervened which would give to the party who had thus lain idle an unconscientious advantage over the other party if the relief asked were granted him. ’ ’

There is nothing in this that tends to support the claim that the increase in value of real property which arises from the development of its surroundings, the discovery of natural resources, or from any other cause unconnected with the labor or expenditure of others, is not, in equity as well as at law, the legitimate property of the true owner. He may let it lie idle if he so chooses without subjecting it to appropriation by a wrongdoer. He is only required to act when he sees another expending his own labor or means in the enhancement of its value, under such circumstances, that it would be inequitable that he should remain silent and claim the result. The other party may, however, and sometimes does, stand solely upon the strength of his own claim. Asking no terms, and showing no disposition to grant any, he throws down his gauntlet and proposes to move to victory in his own way. “In such case no consideration of good faith requires that the plaintiff should open the legal warfare at the very earliest opportunity. When a hostile attitude is thus taken, the challenged party may justly he expected, and reasonably be allowed, to be wary and deliberate in choosing his time and opportunity for attack. The law does not demand the utmost exertion of diligence in repelling a hostile invasion of one’s rights deliberately undertaken with full knowledge of all the facts.” [Potter v. Schaffer, 209 Mo. 586, 589, quoting from 18 Am. & Eng. Ency. Law (2 Ed.), 105.]

All the parties to this transaction are, and have been, during the entire period of the growth of the controversy, nonresidents of this State. For seventeen years from the time of Hill’s entry they all seemed oblivious to the fact that they had any interest in the locality in question until lead was discovered in the Plat River district. Then Mr. Hill sat up and took notice.

In 1872 Mr. Hill was acquainted with Mr. Austin Marshall, a brother of Leander J. Marshall and son of Sarah S. Marshall, through whom these plaintiffs claim, and he says that Austin Marshall was with him at the Ironton Land Office when he made this entry No. 43,783. He died June 10, 1874, and on the 19th .of the same month the warranty deed was made by Hill and wife to Leander J. Marshall, who conveyed it in the following year to Mrs. Marshall. In the absence of anything in the nature of a full and frank statement explaining these transactions otherwise, it is but fair to assume that they honestly and fairly attempted to consummate the intention of the parties by putting the legal title in the person for whom the entry was made. Had the land been properly described in the first patent, the legal title would have been vested in Mrs. Marshall. That mistake having been made, the equitable title resulting from the entry was vested in her, and attached itself to the legal title when,' by the correction of the mistake, it emanated from the government.

Mr. Hill seems to have moved promptly following the discovery of lead. On December 20, 1889, he paid $38.87, taxes for the sixteen preceding years. He continued afterwards to pay them, much more than reimbursing himself by wood sold from the land. It is fair to assume that on June 23, 1890, he had forgotten to which Marshall he conveyed the land in 1874, and sent his lawyer for a quitclaim deed to Charles R., who had never, up to that time, had any connection with, the title. In 1894 he began proceedings to procure a correct patent. When this could no longer be concealed from the Marshalls he inaugurated the open fight by charging that their deed had been obtained from him by fraud. Having obtained the patent he challenged these plaintiffs to a legal contest to try the title and having obtained judgment he was able to negotiate the option under which the Lead Company claims. We have gone so fully into these facts merely for the suggestion they contain that from the time Mr. Hill became aware of the desirable quality of these lands he assumed a hostile attitude toward those who claim under his deed of 1874, and when he had strengthened his position challenged them to the contest they are now maintaining against him. We fail to see in his conduct any evidence of confidence in. or dependence upon them that would make it inequitable for them to choose their own time and opportunity to assert their rights. For having done this they cannot now be charged with laches.

V. We do not impute to Mr. Hill any willful misstatement, in holding that the evidence of fraud or mistake in the procurement of the deed from himself to Leander J. Marshall is not of that clear and cogent character 'which wonld justify ns in setting it aside or in holding that it is not the deliberate, fair and intelligent act of the parties to it. We have arrived at the same result with- reference to the deed from Charles E. Marshall to Mr. Hill dated June 23,1890. Although we have no doubt of the truth of the statement that he has been an invalid for twenty-eight years, and has been physically and mentally unfit during that- time to transact any business as “an occupation” as he states in his testimony, the reading of that testimony has given us a high opinion of his mental accuracy and we do not think the record discloses any 'reason why he should not be responsible for what seems to have been his deliberate act. Even were his testimony admissible under the circumstances, and that is a question we find it unnecessary to decide, we do not think he should be permitted upon that testimony alone to overthrow his own solemn, deed upon a statement showjng nothing more than carelessness in making it. He does not claim that it was made as an accommodation, but acknowledges that he received a cash consideration. We are therefore of the opinion that this deed should stand as a release of the interest that was then vested in him as one of the heirs of Sarah S. Marshall.

VI. The statute under which this review is had provides (R. S. 1899, Sec. 779) that “if such petition for review be not filed within three years after such final judgment, is rendered, the same shall stand absolute,” and (Id., Sec. 784) that “no sale or conveyance of property fcr the satisfaction of any judgment, regularly made, shall be affected or prejudiced by the setting aside of any judgment on the appearance of a defendant, as hereinbefore provided, if the property shall be in the hands of innocent purchasers.” In this case Mr. Hill is seized of the legal title to the lands involved in the proceeding, and his conveyance to an innocent purchaser, for value paid, would carry the title discharged of the trust these plaintiffs are trying to enforce. The judgment of Mr. Hill in Ms proceeding to quiet the title works no change in this situation. The provisions of section 784 quoted above, evidently intended to give stability to sales made in the execution of legal process, and thereby prevent the sacrifice of the property of litigants, are not appropriate to this proceeding, which leaves the property intact, merely declaring the ownership provisionally, by a judgment admitting further judicial inquiry before it becomes absolute.

The Lead Company had constructive notice of all matters of public record in its own chain of title, including such collateral matters as these records pointed out. In this case the chain of title consists solely of the patent of 1898 and their own option. It is true the patent points out that it is made “in lieu of one dated August 30, 1872, in which the description of the land was erroneous, the record of which has been cancelled.” This notation does not tend to direct attention to the fact that any chain adverse to the pat-entee existed. Nor do we think that a purchaser from the patentee or those claiming under him, who has had no connection with the proceedings by which the patent was obtained, is, by his purchase alone chargeable with notice of such proceedings.

One may, however, have actual notice of an equitable claim affecting the legal title he is about to purchase, and in such case he completes the transaction at his own risk. He has actual notice when he knows of the existence of the adverse claim of title, or is conscious of having the means of knowledge, though he may not use them. [Sensenderfer v. Kemp, 83 Mo. 581, 588, 589.] In this case the vendor of the Lead Company stated in his petition to quiet his title that he was informed and believed that the Marshalls claimed to have and own an interest in the lands. This information should have attracted the attention of a prudent person, and it would have been the most natural thing in the world to have inquired of Hill what it meant, an obvious means of knowledge of which the Lead Company was conscious. Instead of doing this it took the precaution to. make the payment of the purchase price under its option depend upon a perfect title. "Whatever may be said of the question of notice at the time of its purchase, the’ fact that the purchase money was unpaid at the time formal notice of their claim was given it by the Marshalls, is conclusive against its character as a purchaser in good faith for a \Taluable consideration without notice. [Arnholt v. Hartwig, 73 Mo. 485.] It has, however, done valuable • work upon the land in the way of prospecting for minerals, having drilled between nine thousand and ten thousand feet for that purpose. It pleads, also, that it elected, within the time provided in its contract for that purpose, to exercise its option to purchase the land by paying five thousand dollars in cash, and the balance in two equal payments in one and two years, evidenced and secured as provided in the contract.

Under the circumstances we do not think it will be inequitable to permit the Lead Company to settle with the true owners of the land upon the terms of their contract with Hill. It will only be applying the same equitable principle, to a less marked extent, that was applied by us in Bucher v. Hohl, 199 Mo. 320. The judgment of the circuit court for St. Francois county is reversed and the cause remanded to that court with directions to enter its judgment in accordance with the principles herein stated, so that the leg*al title to the land in controversy will be vested in the parties hereto ns tenants in common in the following proportions, that is to say: to plaintiff Winifred Marshall Dittmar two-fifths; plaintiff Mrs. W. S. Marshall one-fifth; plaintiff Adella M. Lasley one-fifth; defendant Norman N. 'Hill, Jr., one-sixth, and to defendant Charles R. Marshall one-thirtieth, subject however to the right of the defendant Doe Ran Lead Company, at any time within thirty days from the date of said decree, to' purchase said land for the sum, and upon the terms, stated in the. contract or option executed by defendant Hill and wife February 21, 1906', by depositing the cash and securities representing the purchase price provided in said contract with the clerk of said circuit court to be delivered to the parties to whom said title is so adjudged, and upon such payment and deposit, within the time specified, the legal title shall pass to and vest in said Doe Run Lead Company. The costs of this suit to be adjudged against the defendants Hill and Doe Run Lead Company.

Blair, G., concurs.

PER CURIAM.

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

All the judges concur, Woodson, J., in separate opinion.

CONCURRING OPINION.

WOODSON, J.

I concur fully to everything contained in this opinion, except what is said in regard to the rig’ht' of the Doe Run Lead Company to purchase the land in controversy from the appellants for the sum and upon the conditions ’stated in the optional contract to purchase the same by it from respondent without the appellants’ wish voluntarily to so do, and as to that I dissent.

PER CURIAM.

Since the transfer of this cause to the Court in Baüc, and after submission, the parties, both appellants and respondents, have filed a stipulation as follows:

“It is stipulated and agreed between counsel for appellants and counsel for respondents that whereas all of the interest'of the parties plaintiff and Charles R. Marshall defendant, have, prior to the decree in Division No. 1 of this conrt, been transferred by deed to Winifred Marshall Jackson (formerly Winifred Marshall Dittmar, she having married Jackson since the trial below), the decree may be amended so as vest the interest to the land in controversy herein in Winifred Marshall Jackson, five-sixths, and Norman N. Hill, Jr., one-sixth, and that all of said interests shall vest in the Doe Rnn Lead Company upon the payment by said Doe Run Lead Company of fifteen thousand dollars, twenty-five hundred dollars of which to be paid to Norman N. Hill, Jr., and twelve thousand five hundred dollars to Winifred Marshall Jackson, or to their respective attorneys of record; and, whereas, the Doe Run Lead Company has already deposited with the clerk of the circuit court of St. Francois county the sum of fifteen thousand dollars in cash, it is stipulated and agreed between counsel that a decree may be entered for the payment of the same to the attorneys of record for Winifred Marshall Jackson and Norman N. Hill, Jr., respectively, in above proportions, and that all the title and interest of the parties to this suit in the land in controversy shall, upon said payment, be vested in the Doe Run Lead Company. The costs of the suit to be adjudged against the Doe Run Lead Company.”

Whereupon it is ordered and adjudged ■ by the court, sitting in Banc as aforesaid, that the decree heretofore made and entered in Division Number One be so changed and modified that the said cause be, and it is, remanded to the circuit court for St. Francois county with directions to enter a final decree therein in all respects in accordance with the terms of said stipulation, and that the mandate of this court in accordance herewith issue immediately.

The opinion of Bbown, CL, in Division One is adopted as the opinion of the Court in Banc with the modification suggested by Woodson, J., in a concurring opinion filed, but our direction as to the entry of the decree in the circuit court is founded upon the stipulation.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. DAVID T. PUNCH et al. v. HENRY KORTJOHN et al., Election Commissioners of St. Louis.
    In Banc,
    November 26, 1912.
    1. NOMINATIONS: By Petition of Electors: New Parties. The election laws of this State leave open the door for the formation of new parties hy any considerable portion of the electorate. Under Sec. 5833, R. S. 1909, electors may choose a party name, and hy a petition designate such name and their candidates, ■ and have those names printed on tickets under that party name. The Act of 1909, being Sec. 5855, R. S. 1909, declaring that “hereafter all candidates for elective offices shall he nominated hy a primary election held in accordance with this article,” relates to nominations hy a primary election, and was meant to put a stop to nominations hy conventions, and was not. intended, in the case of a new party, to prevent the nomination of candidates hy petition signed hy the requisite number oE electors, as provided hy said section 5833. Nor was said section 5855 intended to prevent the naming of an independent nonpartisan candidate hy petition of electors.
    2. -: By Conventions. Candidates for Representative are not entitled to have their names placed upon the official ballots to he used at the general election in November, hy reason of the fact that they were nominated, hy a convention of delegates of their party, although such party has sprung into existence since the last general election. The very purpose of Sec. 5855, R. S. 1909, enacted in 1909, was to eliminate from the existing laws that portion thereof which authorized a party nomination hy a convention of delegates.
    3 -: gy Committee: New Party. Under Sec. 5870, R. S. 1909, declaring that “vacancies occurring after the holding of •any primary, or when no person shall offer himself as a candidate before such primary, shall he filled by the party committee,” the political committee of a party organized prior to the date fixed by the statute for holding the primary election, but after the time for taking the préliminary steps for said primary had expired, for instance, not until after the time fixed by the statutes for filing declarations of candidacies, has power to name their party candidates for offices, and such candidates are entitled to have their names placed upon the official ballots of said new party to be used at the ensuing general election.
    4. -: -: -: No Party Committee. Said section 5870 is broad enough to permit a party committee of any new nation-wide party to fill any vacancy on the party ticket; nor is its right to fill such vacancies to be denied by election commissioners on the ground that the committee was not chosen in the manner prescribed by the statutes; for, if it consists of committeemen actually performing duties prescribed by law and claiming to act authoritatively for an actual party, it is a de facto committee, whether or not a de jure one, and its acts, even if an usurpation of authority, cannot be called in question •by a board of election commissioners in a collateral proceeding, such as an application of the candidates named by the committee to have their names placed on the official ballots.
    5. -: -: -: Necessity for Party Committee. The law does not prevent the organization of a new party, and a party organized after the time for taking the preliminary steps for the general primary had expired, must in its own way choose a committee to act for it, and that committee has power to name candidates where none could be named at the primary. The statutes prescribing the methods of nominating party candidates for office and the choosing of party committees are statutes of regulation and not statutes of prohibition.
    Mandamus.
    WRIT ALLOWED.
    ' Joseph A. Wright, Ford W. Thompson, Henry H. Oberschelp, Albert Chandler and Paul V. Janis for re-lators.

      Lambert E. Walther for respondents.
   GRAVES, J.

Relators Punch and Wilson are members of the “Progressive Party,” a political organization born since the Republican National Convention in June, 1912. Of matters of current public history we can take judicial notice. Respondents are the members of the board of election commissioners of the city of St. Louis. By three several’routes the relators sought to Nave the respondents place their names upon the official ballots to be used in the general election of November 5, 1912. The office to which they aspire is State Representative from the Sixth district in the city of St. Louis. They presented to respondents (1) a petition duly signed and executed by the required number of qualified voters in their district; (2) a certificate of nomination to such office by a convention of said party in said district; and (3) a certificate of nomination by the committee of such party in said district. Notwithstanding the fact that they knocked at these three several doors, the respondents, as a body, were in doubt as to whether either should be opened, and by a vote of two and two, all were thereby left closed, and relators denied a place upon the official ballots. Relators being not content with this ruling, application was made to this court invoking our writ of mandamus to compel the respondents, through one door or the other, or all, to place their names upon such ballots. Being willing that the matters might be heard, our alternative writ was issued, to which .return was made by respondents Blodgett and Kortjohn in the form of a demurrer. Respondents Jamison and Spencer filed a separate return in which they admit the facts stated by relators, and say that they voted to receive relators’ petition and other evidence of nomination and to place their names upon the official ballot, and that they are still willing that, the same be done. To their return is attached a certified copy of the record of proceedings before the board of election commissioners which shows that they acted as in their return stated. In this state of the record the question becomes one purely of law, and must be disposed of as such. Facts thus admitted by the respective returns will be noted under the proper point in the course of the opinion.

I. The questions presented compel a thorough view of onr primary laws as well as some previous laws as to nominations. Respondents Kortjohn and Blodgett contend that under onr Primary Act of 1909', no person can he a candidate for any office of the character here involved and have his name on the official ballot, unless such person is nominated at the biennial primary, for the year in which he expects to run for such office. Of course they make no such claim as to offices especially excepted in this Primary Act of 1909, nor to persons nominated to fill vacancies after such primary, hut as to an office of the class to which the office here in question belongs, such is their contention. They argue that the Act of 1909 operated to repeal other methods of nominating candidates for public office. To this contention we do not fully agree.

Eespondents (and when we use the term respondents here we refer to respondents Kortjohn and Blod-gett) rely upon section 5855, Revised Statutes 1909, which reads:

“Hereafter all candidates for elective offices shall be nominated by a primary election held in accordance with this article. This article shall not apply to special elections to fill vacancies, nor to county superintendents of schools, to.city officers not elected at a general state election, to town, village, or school district officers.”

This section comes to the body of our laws from the Act of 1909. [Laws 1909, p. 481.] In 1889 (Laws 1889, p. 105) under the head of elections, there was passed an act entitled, “An Act to provide for the printing and distributing of the ballots in elections for public officers at public expense, and to regulate elections of public officers,” the second section of which reads:

“Sec. 2. Any convention of delegates or primary election as hereinafter defined, held for the purpose of making nominations to public office, and also electors to the number hereinafter specified, may nominate candidates for public offices to be filled by election within the state. Such nomination shall he made by filing a certificate of nomination, executed with the formalities prescribed for the execution of an instrument affecting real estate.”

This section has remained upon the statute books ever since and is now Sec. 5833, R. S. 1909. "When passed in 1889, this section was the one which defined and pointed out the sources of nominations. They were three in number, i. e., (1) a convention of delegates, (2) a primary election, and (3) a petition by electors. In the early case of Atkeson v. Lay, 115 Mo. 538, this court held that such electors might designate a party name, and under that name have their candidates’ names printed. Thus the door was opened for the formation of a new party by any considerable portion of the electorate of the State. This remained the fixed policy of the law until 1909, and is the fixed policy of the law now, unless such policy has been changed by the Act of 1909 or previous intervening acts. In determining the legislative intent it is proper to consider the public history of the times. It will be noted that in this Act of 1889 the primary system is recognized as one of the methods of naming candidates. About that time and even prior thereto public sentiment was divided as to the better method of making party nominations. The convention system had its advocates and the primary system had its advocates. As between the two the fight proceeded, but from neither side was there evinced a disposition to bar any independent candidates named by the electors or the formation of new parties by the electorate of the State. The absorbing topic was, shall the convention system survive, or shall it be displaced entirely by the primary system? Our political and legislative history bespeak these facts. The whole fire was centered upon this matter in so far as party nominations are concerned. There was no public thought of preventing the formation of new parties, nor of preventing an individual, backed by a required quota of electors from running upon a ticket to himself. So that we say that all the legislative acts following the Act of 1889 must be construed with reference to the spirit of the times surrounding them. The matter thus discussed was the method to be used by political parties in making their nominations. The Act of 1889 recognized two methods for existing political parties to make their nominations, to-wit, by a convention of delegates or by a party primary. It also recognized a method for a new party ticket and for an independent or nonpartisan ticket, as we construed it in Atkeson v. Lay, supra. Although there was more or less a continuous fight from 1889 oh, for the selection of candidates by party primaries rather than by party conventions, material legislative results did not come to light until the legislative session of 1907, at which time a bill was passed entitled, “An Act to provide for party nominations by direct vote.” [Laws 1907, p. 263.] The first section of that act is the same as the first section of the succeeding Act of 1909, and is now Sec. 5855, R. S. 1909, upon which respondents rely.

A careful reading of the Act of 1907 shows that the legislative mind was bent upon the method of nominations by political parties and had no thought of disturbing the Act of 1889 so far as it related to nominations by electors, which portion of the Act of 1889 we had, in Atkeson v. Lay, so construed as to make it the, avenue for the formation of new political organizations, as well as the avenue for independent, nonpartisan nominations. Indeed, the very title of the Act of 1907 would indicate that there was no legislative intent to disturb that portion, of the Act of 1889 relating to nominations by electors. Tbe Act of 1907 was repealed by tbe Act of 1909 (Laws 1909, p. 481); tbe title to said act reading thus: “An Act to repeal an act entitled, ‘An act to provide for party nominations by direct vote,’ approved March 18, 1907, and to enact in lien thereof a new act covering' tbe same subject.”

Tbe Act of 1909 re-enacts most of tbe salient features of tbe old act, and in places elaborates and makes tbe provisions clearer, but a careful reading of tbe Act of 1909 shows/ as its title indicates, that it in fact was dealing with tbe method of making party nominations and not especially with other matters covered by tbe original Act of 1889. Tbe repealing section of tbe Act of 1909 reads: “That an act entitled, ‘An act to provide for party nominations by direct vote,’ approved March 18, 1907, Session Acts 1907, page 263, together with all other acts or parts of acts inconsistent or in conflict with tbe provisions of this act, be and tbe same are hereby repealed. ’ ’

In other words, this Act of 1909 does not attempt to deal with tbe subject of nominations made by electors, and is therefore not inconsistent with that portion of tbe Act of 1889, and of course does not repeal that portion of such act. To my mind both tbe Act of 1907 and tbe Act of 1909 were only intended to eliminate from tbe Act of 1889 that portion which authorized a party nomination by a convention of delegates. That was tbe question politically and legislatively discussed during those years, and that is tbe evil tbe new laws were intended to remedy. There was- no intent to take from tbe electorate of tbe State tbe right to designate a new party name and candidates on such ticket by a petition of electors, or to prevent tbe naming of an independent, nonpartisan candidate by such electorate. -As said before tbe legislative purpose was, using a slang phrase, to “kill off” political conventions for nominating purposes and not to prevent tbe organization of new parties through, the joint action of qualified electors. So that it is clear to my mind that relators’ names should go on the Progressive ticket by reason of the petition to that effect by the electors of their respective district.

II. By the same reasoning it is clear that they are not entitled to go thereon by reason of the nominating certificate from the Progressive party convention. As said before the very purpose of all legislation subsequent to the Act of 1889 was to do away with nominations by conventions. Such legislation to my mind had no other purpose except in addition to perfect a system of conducting party primaries. As to this method, relators’ contention must fail.

III. Lastly we take the nomination made by the Progressive party committee. In our judgment rela-tors were entitled to a place on the official ballots by reason of this act of the party committee. There may be more obstacles in the way of reaching this conclusion, but in my way of thinking the conclusion is well grounded in legal principles. We have here a political party, nation-wide, organized after the time for taking the preliminary steps for the August primary had expired. Such party, therefore, could not participate in the primary, although it came into existence prior to the primary. The preliminary steps had to be taken prior to June 6, 1912, at which time there was no such political organization, but it did have a national and state organization prior to August 6, the date of the primary. Such party although actually in existence had no candidates for office running at such primary. In the Act of 1909 (Sec. 16, Laws 1909, p. 485), it is provided: “Vacancies occurring after the holding of any primary or where no person shall offer himself as a candidate before such primary, shall be filled by the party committee of the district, "county or State, as the ease may be: Provided, however, that no name shall he allowed on any ticket until the required fee shall have been paid.”

This section is broad enough to permit the party committee of such party to fill any and all vacancies upon their party ticket. But it was urged that there was no party committee elected in the manner provided by law. In my judgment there are two answers to this question. First, there was a party committee de facto, whether there was one de jure or not. Call it merely a political committee de facto, yet when we have committeemen and a committee actually performing the duties prescribed by law and claiming to act for the party by authority, with a duly organized political party as we have here, can.the election commissioners in a matter of this kind question the authority of the body to act? We think not. If, under the law, they are usurping authority, the law affords a remedy, but their acts cannot be Called into question in a collateral proceeding as was this before the board of election commissioners. They purported to be a po-. litical comujittee for an existing party, and that board is not empowered to hear and determine the rights of conimitteemen or a committee to act.

But we need not rest the case upon this ground alone. There is nothing to be found in the statute laws of Missouri preventing the organization of a new political party at any time the electors of the State see fit to so organize and declare principles. It may be true that we have made no express provision for an emergency of this kind, but it is equally true that from a legislative standpoint we have not placed a ban upon the organization of a new party, and personally I do' not think we could place such a ban without treading dangerously near the constitutional inhibitions. We may regulate political parties, after their organization in the exercise of the police power of the State, but that and no otter power can suppress the alignment of onr citizens with either old or new parties.

. For such new organization there must he a starting point, and because the law makes no express provision for the starting point, it does not follow that the citizens believing in given principles cannot meet and organize in the old and accustomed ways, but when organized they must follow the regulations as prescribed by law. The committee of the Progressive party could not have been selected at the August primary, and no doubt was selected by electors belonging to that party in the old way. This we think sufficient. Had there been a party organization in time for the August primary, committeemen should have been selected thereat. But even then there would have had to have been a provisional committee previously selected in some manner to have enabled candidates on such ticket to have taken the preliminary steps in that primary. It is hard to conceive how a new political party can be organized except we concede the right to have a provisional committee to run the affairs of the party up to such time as it can elect a committee under the statutes.

Political committees are the head and front of political organizations. They are the managing and guiding officers. In fact there can be no organization without officers, and if our laws contemplate that new political parties may be formed, as we think they do, then such laws must contemplate that, when such new political organization is perfected, it will designate the usual managing officers and committees, which will .act until such time as officers and committees may be elected under regular statutes. We should always bear in mind that our statutes in this regard are statutes of regulation and not statutes of prohibition. For these two reasons we. are of opinion that relators were entitled to go upon the official ballot under their nomination by the committee of the Progressive party.

Cases from other States shed hut little light upon the questions. They are largely dependent upon general principles applied to the statutes of our own State. For these reasons we are satisfied with our judgment heretofore announced by this tribunal, but for want of time announced without opinion filed. Later the case was assigned to me for an opinion.

The respondents were in error in refusing to place the names of relators upon the official ballots and our order heretofore made for a writ of mandamus compelling them to place such names upon the official ballot was right.

All concur except Kennish, J., not sitting.