author: WOODSON, J.

text:
    THE STATE ex rel. STEPHEN J. GAVIN v. HUGO MUENCH, Judge, and ROBERT R. HUTCHINSON and MARY H. ANDERSON.
    In Banc,
    February 2, 1910.
    1. JURISDICTION: Title to Real Estate: Easement in Abandoned Street. Where defendant had taken possession of certain strips of land in St. Louis county, which had once been platted as streets upon a recorded plat, and, being the owner of adjoining lots, claimed title to the centre of said streets, the basis of his claim being that the subdivision had not been properly platted by a plat filed with the clerk of the county court, that the court had never accepted said streets or done any work on them, that they had been abandoned as such by nonuser for ten years, and that the title to one-half of them had vested in him as the owner of the adjoining lots, the circuit court of the city of St. Louis has no jurisdiction of plaintiffs' injunction suit to restrain him from constructing an embankment and laying a railway switch therein. Such a suit clearly affects title to real estate, and though it be an equitable proceeding and ordinarily would act in personam, under the statute only the circuit court of St. Louis county has jurisdiction over the subject-matter.

      2. -:-:-: Prohibition: Merits of Action. And the circuit court of the city of St. Louis, having no jurisdiction over the subject-matter, this court will prohibit it-from enforcing any judgment rendered therein, and in doing so will not consider questions affecting the merits of the case, nor undertake to say that its judgment was right upon the facts, but will simply rule that it had no authority to render any judgment in the case at all.
    Prohibition.
    PEREMPTORY WRIT GRANTED.

      Fordyce, Holliday & White for relator.
    (1) The application for this writ was timely and the case should he considered on its merits. State ex rel. v. Rombauer, 105 Mo. 105; State ex rel. v. Elkin, 130 Mo. 90; Barnes v. Gottschalk, 3 Mo. App. 115; Olive v. Snider, 176 Mo. 63. (2) The rule should he made absolute, as the'circuit court of the city of St. Louis was without jurisdiction to try the case: for (a) The case was one whereby the title to real estate, situated entirely without the city of St. Louis and in the county of St. Louis, may be affected. R. S. 1899, sec. 564; Castleman v. Oastleman, 184 Mo. 432; State ex rel. v. Dearing, 180 Mo. 53; Baker v. Squire, 143 Mo. 92; Peters v. Worth, 164 Mo. 431. (b) The respondents, who were plaintiffs below, are seeking to charge relator’s real estate with an easement. Baker v. Squire, 143 Mo. 92; Monroe v. Crawford, 163 Mo. 178; Peters v. Worth, 164 Mo. 431; Tarkio v. Clark, 186 Mo. 285. (c) The relator is without adequate remedy other than the writ of prohibition. State ex rel. v. Dillon, 96 Mo. 56.

      G. B. Skinher for respondents.
    (1) The preliminary rule should be discharged because: (a) Appeal furnishes an adequate remedy in this case, and where such is true the writ will not issue. Mastín v. Sloan, 98 Mo. 252; State ex rel. v. Scarritt, 128 Mo. 331; Railroad v. Wear, 135 Mo. 256; State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Zachritz, 166 Mo. 307; State ex rel. v. Stobie, 194 Mo. 48; State ex rel. v. Hirzel, 137 Mo. 435; Mining Co. y. Fremont, 7 Cal. 132; Hicks y. Michael, 15 Cal. 109; Bliss v. Superior Ct., 62 Cal. 544. Nor is inadequacy by appeal demonstrated by the case of State ex rel. v. Dillon, 96 Mo. 56. (b) If relator correctly construes that case to the effect that appeal on bond would not suspend the removal of the fence and tracks required to be done by the decrees in causes 51,038 and 51,039, then those decrees cannot be prohibited, because they are completed matters, (c) Since the jurisdiction of the trial court depended upon facts to be found andi law applied thereto, it is for the trial to determine the jurisdiction, and error in so doing can be corrected on appeal or by writ of error. Mastín v. Sloan, 98 Mo. 252; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. y. Moehlenkamp, 133 Mo. 134. (d) The writ should be denied because of relator’s failure to make timely application for the writ, to the great expense and trouble of respondents, in the discretionary power of the court to issue such writ. State ex rel. v. Stobie, 194 Mo. 50. (2) On a proper construction of sec. 564, R. S. 1899, the trial court was not without jurisdiction in the original causes. R. S. 1899, sec. 564; Stats. 1835, p. 506, sec. 2; Stats. 1855, p. 1221, sec. 3, art. 4, chap. 128; Railroad v. Mahoney, 42 Mo. 467; Gregg v. Railroad, 48 Mo. App. 494; State ex rel. v. Dearing, 180 Mo. 56; Castleman v. Castleman, 184 Mo. 432; Nichols v. Voorhis, 74 N. Y. 29; Wheeler v. Scho-field, 67 N. Y. 311; Norris v. Neshit, 123 N. Y. 650;' Klingelhoefer v. Smith, 171 Mo. 463. The decrees in causes 51,038 and 51,039' do not directly affect the title to the land in the roads. Such is necessary to bring the case within section 564. State ex rel. v. Dearing, 180 Mo. 63; Hernán v. Wade, 141 Mo. '598; Price v. Blankenship, 144 Mo. 209; Edwards v. Railroad, 148 Mo. 513. The original canses were equitable suits in personam which should he brought in the county where the defendant resides, and, when jurisdiction of his person was acquired, jurisdiction of the subject-matter followed. State ex rel. v. Dearing, 180’ Mo. 63; State ex rel. v. Zachritz, 166 Mo. 313; Olney v. Eaton, 66 Mo. 363; Castleman v. Castleman, 184 Mo. 438.
   WOODSON, J.

At the suggestion of relator, made in his petition filed herein, on July 23, 1909, one of the judges of this court issued a preliminary rule to respondents, requiring them to show cause why a writ of prohibition should not issue herein made returnable October 12, 1909.

The facts, as appear from the petition and the return made thereto, are substantially as follows:

Hugo Muench, one of the respondents, at all the times herein mentioned, was one of the judges of the circuit court of the city of St. Louis, and the other respondents, as well as the relator, were residents of said city. On December 6, 1907, respondent Robert R. Hutchinson filed in the circuit court of said city his petition for an injunction against relator as defendant, claiming relief in the matters hereinafter stated; and on the same day said Hutchinson, as curator of respondent Mary H. Anderson, filed her petition also against relator as defendant in said court, praying for same relief. The relator filed a demurrer in each of said causes, raising the question of the jurisdiction of said court over the subject-matter of each of said suits. On February 18, 1908, by agreement of parties, said causes were, by order of court, consolidated, Mary H. Anderson in the meantime having reached the age of majority. The petitions in said causes were identical in substance and they will, for that reason, hereinafter be referred to as one case.

The petition of plaintiffs (respondents here) in said canse stated that Eobert E. Hutchinson and Mary H. Anderson were the owners of lots numbered 8, 9, 10 and 11 in Hutchinson’s subdivision, lying entirely within the county of St. Louis, in the State of Missouri; that on June 21, 1870, one E. C. Hutchinson, from whom respondents claim title to their property, had duly executed and acknowledged a plat of said Hutchinson’s subdivision which said plat was recorded with the Recorder of Deeds of said county of St. Louis; that the relator, Stephen J. Gavin,, was the owner by purchase, on June 19', 1905, of lots 5 and 6 of said Hutchinson’s Subdivision, lying in the county of St. Louis; that upon said' plat, as filed by said E. C. Hutchinson, a street sixty feet broad and designated as Barnes Avenue, lying between the property owned by the respondents and the property of the relator, was dedicated as a public road forever; and that a street fifty feet wide, running from said platted Barnes Avenue in a northerly direction to the northernmost limits of saidi subdivision, along the east line of relator’s lot number 5, was dedicated as a public road forever. Respondents’ petitions further state: “That said. Barnes Avenue and said street fifty feet wide, extending north and south between said lots 4 and 5, have not heretofore been opened by any order of the county court of said St. Louis county,.nor a plat made thereof and filed with the clerk of said county court, nor have said roads or either of them been used as public highways by the traveling public for a period) of ten consecutive years next prior to the filing of this petition, nor has there been any public money or labor expended upon said roads or either of them for said period of ten consecutive years.” And respondents’ said petitions further state “that the said Gavin (meaning the relator, herein) has denied that said Barnes Avenue has ever been accepted by the said county court as a public road, and that said Barnes Avenue has ever been used by the public as a public road at any time since its dedication as aforesaid; and that said county court has declined to assume jurisdiction of said Barnes Avenue as a public road.”

“Relator further states to the court that said petition of respondents thereupon proceeded to set up that the relator had erected upon that portion of Barnes Avenue, lying nest to his lots Nos. 5 and 6 and within the middle line of said Barnes Avenue, a certain railroad embankment and switch track and a certain fence, and that said relator had suffered to remain upon the middle line of said street fifty feet wide a certain fence; that by reason of said fence and embankment respondents were deprived of their easement of ingress and egress upon and over said Barnes Avenue and said street fifty feet wide lying nest to the lots of the relator within the middle line of said! streets: Wherefore, the respondents asked for damages and that said embankment and fences shall be removed,” and that he be permanently enjoined from replacing or maintaining them in said streets, etc.

“Relator states that under the Constitution and laws of the State of Missouri, and more particularly by section 564 of the Revised Statutes 1899', it is provided that suits for the possession of real estate, or whereby the. title thereto may be affected, shall be brought within the county within which such real estate, or some part thereof, is situated; that by the allegations of respondents’ petitions filed herein, all of the real estate mentioned in said petitions as belonging to respondents and relator, was situated in the county of St. Louis, State of Missouri, and without the limits of the city of St. Louis, but that said suits, and both of them, were brought in the circuit court of the city of St. Louis as aforesaid and were then pending before Judge Hugo Muench, respondent herein, as aforesaid; that from the allegations of said petitions, and both of them, it appears that said streets had been abandoned by reason of their non-user by the public for the period of ten consecutive years preceding thé filing of said petitions, as will more particularly appear from sections 9472 and 9694 of the Revised Statutes 1899, and that, therefore, the title to said streets, and each of them, had vested up to the middle line of said streets in the owners of the abutting property; that your relator was, therefore, the owner in fee up^ to the middle line of said streets where the same adjoined his said lots 5 and 6, and that, therefore, the obstructions complained of in respondents’ petitions were erected! upon real estate the title of which wag vested in the relator, and that the respondents, and each of them were seeking to charge said property with an easement in favor of said respondents and that, therefore, the title to said property was necessarily affected by said actions, and both of them.

“Tour relator further states that by the laws of the State of Missouri, as aforesaid, the said circuit court of the city of St. Louig and Judge Muench, the respondent herein, as one of the judges of said court, was without jurisdiction' of the subject-matter to try said causes; that your relator, as will appear from the files in said causes submitted herewith, filed in both actions demurrers to said petitions, and for grounds for said demurrers stated that said court was without jurisdiction of the subject-matter of said actions, in that the same was for the possession of and affected title to real estate situate in St. Louis county, but that respondent, Judge Muench, overruled said demurrers and thereafter overruled the general demurrers filed by relator; that thereafter relator filed answers in said causes, in which answers relator set up' the plea to the jurisdiction of said circuit court of the city of St. Louis and claimed title in the half of said streets, lying nest to his said lots 5 and 6, by reason of the abandonment of the said streets, and for these reasons, together with other defenses, stated that the respondents, Robert R. Hutchinson and Mary H. Anderson, were not entitled to charge his said property with an easement of ingress and egress, and were not entitled to any rights oyer his said property. Relator further shows that said respondent, Judge Muench, overruled said pleas to the jurisdiction and proceeded to try and determine said causes and thereafter, to-wit, on the 15th day of July, 1909, as will appear by the files in said causes herewith submitted, said respondent, Judge Muench, found in favor of said respondents, Robert R. Hutchinson and Mary IT. Anderson and against said relator, and found that said streets were duly dedicated and existing streets and that said respondents had a right of ingress and egress over said streets and over that half lying next to the lots of the relator, and did order and decree that said relator remove said embankment and fences from said streets and be hereafter enjoined from obstructing said streets or either of them.

“Relator further states that by said decree his title to real estate in the half of said streets adjoining said lots 5 and 6 is directly affected.

“And relator further states that, under the Constitution and laws of the State of Missouri, it is made the duty of the Supreme Court to see that the circuit court of the city of St. Louis and all divisions thereof and the judges thereof, as well as other inferior courts, keep within the bounds and limits of their respective jurisdictions prescribed for them by the statutes and Constitution of the State of Missouri:

“Relator states that said proceedings in the circuit court of the city of St. Louis, before Hugo Muench as Judge of Division Number One thereof, are in violation of the Constitution and laws of the State of Missouri and to the manifest damage, prejudice and grievance of the relator and of the public, and are wholly illegal and void; that said circuit court of the city of St. Louis, and said Hugo Muench, as judge thereof, lias no jurisdiction, power or authority to try said causes or to compel the relator to submit to the decree of said court therein. And relator further states that said proceedings filed as aforesaid are direct encroachments upon' the authority and jurisdiction of the circuit court of St. Louis county. And your relator herewith exhibits to this court the records and proceedings had in the said court in said cause in establishment of the matter stated in his petition.

“Wherefore, your relator, imploring the aid of this Honorable Court, prays to be relieved and that he may have the State’s writ of prohibition directed to the said Hugo Muench, judge of the said court, and to the said Robert R. Hutchinson and Mary IT. Anderson, respondents herein, to prohibit them and him from pursuing and holding the pleas aforesaid, and from taking any further cognizance or making any further order in the said causes before him, touching or concerning the premises.”

The return is quite lengthy. It set out in full the petition, demurrer filed thereto, the answer, the findings of facts made by the court, and the decree of court entered in said cause. Much of this, however, is foreign to the legal proposition involved in this case, and may for that reason be omitted from this statement. The principal facts of that case are sufficiently indicated by the finding of facts made and filed by the court therein, which is as follows:

“These two cases having been, by consent, tried together, upon the same evidence, and the defendant (who is the same in each case) having requested that a finding of facts might be made therein, the following are therefore by the court found to be the facts, applicable alike to each case:

“It is found that the common source of title to all the property or real estate involved in these causes, was one E. C. Hutchinson, who acquired the same from John Lay and wife by deed dated December 20, 1854, and recorded in the county of St. Louis, Missouri, on January 2, 1855 in book 159, page 510 thereof; that on June 25,1870, said E. C. Hutchinson regularly filed in the office of the Recorder of Deeds of said county an acknowledged plat of a subdivision of the property so acquired from Lay and wife, dividing the same into certain number of lots, of different dimensions and area, and thereby dedicating to public use forever Barnes Avenue, running through said subdivision from east to west, sixty feet wide, from ‘Fruit Hill Subdivision’ on the east, to lot No. 12 of said subdivision, and thirty feet wide, adjoining said lot No. 12, and also another street, fifty feet wide between said Barnes Avenue and St. Charles Rock Road, running north and south, between lots 5 and 4 of said subdivision.

“That defendant Gavin now owns, and at the several times complained of did own lots 5 and 6 of said Hutchinson’s subdivision, having acquired the same by mesne conveyances from the common source of title; that the first of said conveyances of lots 5 and 6 was executed by said E. C. Hutchinson to one John Q. Bnrd, which deed is on its face dated June 18, 1870, but in fact was not acknowledged or delivered until the 6th day of July, 1870, to wit, after the acknowledgment and recording of the plat of Hutchinson’s subdivision, and the dedication of the streets aforesaid, and that both in and by said deed of Hutchinson to Burd, as also in and by the deed from Henrietta Robeling et al. to defendant Gavin (dated June 21, 1905, and recorded in book 167, at page 75, records of the county of St. Louis), said lots 5 and 6 are described as being bounded on the south by Barnes Avenue, and on the east by a street fifty feet wide.

“That on March 27, 1905, defendant Gavin filed with the county court of the county of St. Louis, a written application or petition, in and by which, as owner of said lots 5 and 6, he asked for an order of said county court permitting him to build and operate a switch along, over and npon said Barnes Avenne, which in said petition the defendant described as a street sixty feet wide, forming the southern boundary line of his said property; and which petition was accompanied by a plat of the premises in question, showing said Barnes Avenue as a street sixty feet wide, south and in front of said lots 5 and 6'. That said petition was by said county court on April 3, 1905, dismissed for alleged want of jurisdiction.

“And the court further finds that said Barnes Avenue, from about the time of said dedication and the filing of the plat of Hutchinson’s subdivision, was used as a road or passageway by the persons immediately adjoining the same, and a few other persons in that neighborhood, both for vehicles and foot passage; but that the same was never opened towards the west, or beyond the property in Hutchinson’s subdivision, and was therefore not in general use as a public thoroughfare; and that for much of the time since said dedication, and up to this time, there was a gate, or a set of railings at a point east of Hutchinson’s subdivision, across said Barnes avenue, projected east-wardly, which gate was designed to, and did, keep cattle from the field's and premises of tenants in said Hutchinson’s subdivision, but which gate could readily be opened, and was opened by all persons intending to use Barnes Avenue west of said gate, for purposes of driving or walking.

“That heretofore, and for more than ten years prior to the institution of this action, there was a substantial fence in front of lots ’5 and 6, and practically upon and along the northern line of Barnes Avenue according to said dedication; and there was also a fence, during the same time, running along the center line of said 50-foot street to the east of lot 5 of said subdivision, and that said 50-foot street has never at any time been used as a public or traveled street; but said western half' thereof has for about fifteen years been used and occupied in conjunction with said lot 5, by tbe owners or temporary occupants of said lot.

“And I do further find from the evidence that the defendant, Stephen J. G-avin, after the purchase by him of said lots 5 and 6, and after the dismissal of his said petition by the county court of St. Louis county, did proceed to erect a fence along the center line of said Barnes avenue in front of said lots Nos. 5 and 6, extending east to the point where the same struck the projected center line of said 50-foot, street, and did further build a fence from that point northwardly along said projected center line until the same struck and connected with said old fence along the center line of said 50-foot street; and .that, at or about the same time, said defendant caused to be erected upon and along the northern half of said Barnes Avenue, from a point about midway the southern boundary of said lot 6, thence west, in front of lots 10 and 11 of said subdivision, and along said Barnes Avenue, to a point at or near the main line of a railroad, a high embankment varying between 2 and 7 feet in height, which embankment is used and occupied by said defendant to carry switch tracks for his private use, and which obstructions in Barnes Avenue were so erected and imposed without the consent of plaintiff Hutchinson, who is the owner of lot 11, and plaintiff Mary H. Anderson, who is the owner of lots 8, 9 and 10 of said subdivision; and that the property of said plaintiffs is damaged to some extent not sufficiently established as to amount by the evidence, and is seriously.inconvenienced in use and accessibility by reason of the fences, embankments and other obstructions placed in said Barnes Avenue by the defendant, and the attempted abolition of said street by defendant. ’ ’

The court then gave certain declarations of law, and found for the plaintiffs, the respondents here, and against the defendant, the relator here, and perpetually enjoined Mm from maintaining in said streets the railroad embankment and fence mentioned in the pleadings, and from otherwise obstructing the same.

The return also shows that the demurrer filed by relator in that case, questioning the jurisdiction of the circuit court of the city of St. Louis to try the cause, was, by that court, overruled; also that relator raised the same question by his answer filed therein, wMch was by the court ignored and not passed upon.

I. The question here presented is not, did the circuit court of the city of St. Louis correctly decide the case of Robert R. Hutchinson et al. v. Stephen J. Gavin; but the question.here is, did that court have jurisdiction over the subject-matter of that suit, and did it have the authority to try and adjudicate the matters and things therein involved?

Counsel for relator deny it had such jurisdiction and authority, while counsel for respondents maintain the affirmative of that proposition. This briefly and sharply presents the legal proposition involved in this proceeding.

Relator was the owner of lots 5 and 6 of Hutchinson’s subdivision, mentioned in the pleadings, and they fronted on the streets therein named.

The petition in said cause alleged, among other things, that said streets had not theretofore been opened by any order of the county court of said St. Louis county, nor a plat made thereof and filed with the clerk of said court, nor had said roads, or either of them, been used as public highways by the traveling public for a period of ten consecutive years next prior to the filing of said petition, nor had' there been any public money or labor expended upon said streets or either of them for said period of ten years. The petition also stated that said Gavin (meaning the relator herein) denied that said streets had ever been accepted by the said county court as a public road, and that they had ever been used by the public as such at any time since their dedication, and that said county court had declined to assume jurisdiction over the same.

The answer of relator filed therein pleaded substantially the same facts respecting said streets that are charged in the petition in that regard. The answer also contained a plea challenging the jurisdiction of the circuit court of the city of St. Louis over the subject-matter of that suit, for the reason that it involved or affected title to real estate located in a different county from that in which said court was situated.

There is no question hut what the relator, the defendant in that case, claimed title to the land' mentioned to the center of said streets. The basis of his claim was that the subdivision mentioned had not been properly platted and filed with the clerk of the county court; that said court had never accepted said streets or done any work upon them; and that they had been abandoned as such by the public by non-user for a period of ten years. In fact, the petition in that case not only conceded relator claimed title to said land to' the center of said streets, but it, in express terms, charged that to be the fact; hut respondents now try to escape the effects of that concession hv insisting that said suit was an equitable proceeding which acts in personam, and for that reason could be brought and maintained in the county wherein relator resided.

Ordinarily that is true, which is shown by the following well-considered cases: State ex rel. v. Dearing, 180 Mo. 63; State ex rel. v. Zachritz, 166 Mo. 313; Olney v. Eaton, 66 Mo. 563; Castleman v. Castleman, 184 Mo. 438; Hewitt v. Price, 204 Mo. 31.

But an exception is made to that rule by statute. Section 564, Revised Statutes 1899', provides that suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate, or some part thereof, is situate.”

As before stated, both the petition and the answer filed in said canse show that the relator, defendant there, set up and claimed title to the land to the center line of said streets, lying adjacent to his said lots. The issues thus joined clearly put in issue the title to said real estate; and said suit necessarily involved or affected the title thereto, within the meaning of said section of the statute.

In discussing this same question, this court in the case of Castleman v. Castleman, 184 Mo. l. c. 438, said: “At the threshold of the case is raised a question of jurisdiction. Plaintiff resides in Cooper county, the land affected by the deeds in question is in that county, the suit was instituted there, the summons issued to the city of St. Louis, where defendant resides, and was served on him there. Defendant moved the court to dismiss the suit on the ground that the circuit court of Cooper county had no jurisdiction. The motion was overruled and exceptions taken. The position of appellant on this point is that this is a personal suit and could be brought only in the county of his residence or ‘where the plaintiff resides and the defendant may be found.’ Appellant is correct in his general proposition that a court of equity acts in personam. And since the suit is personal in its character it must seek the person to be affected in the county of his residence regardless of where the thing in controversy may be. [State ex rel. v. Zachritz, 166 Mo. 313.] But our statute (Sec. 564, R. S. 189'9') has engrafted one exception to that rule. It is said: ‘Suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate, or some part thereof, is situate.’ Title to real estate is directly affected in this suit. By the decree appealed from the appellant is divested of title and the plaintiff invested with the same. [Keyte v. Plemmons, 28 Mo. 104; Ensworth v. Holly, 33 Mo. 370; Railroad v. Mahoney, 42 Mo. 467.] ”

And in the case of State ex rel. v. Dearing, this court said: “As to respondent’s first contention, it is only necessary to say that while the subject-matter of the controversy in that suit grew out of the alleged transactions between the parties in the sale and transfer of the lands in Carter, Wayne and Butler counties, the title to these lands was in no way involved in the controversy. It was purely and simply a suit in equity operating in personam upon the defendants. That the court had jurisdiction of the persons of the defendants and of the subject-matter of the controversy between them is manifest upon the face of the statement. The only thing that is urged, giving any countenance to the contention that title to real estate is involved in that controversy, is the prayer for relief in which the cancellation of the notes given for part of the purchase money for those lands, and an injunction restraining the foreclosure of the deed of trust given to secure them is asked. But such prayer could not have the effect of converting plaintiff’s equitable action in personam into an action ‘affecting title to real estate’ within the meaning of the section relied' upon. ‘In granting injunctions the court operates in personam and may exercise its jurisdiction quite independently of the locality of the act to be done; being an order directed to a person, it does not run with the land. ’ [Kerr on Injunctions (3 Ed.), pp. 6 and 7.] This section of the statute, like the constitutional provision vesting appellate jurisdiction in this court in eases involving title to real estate, applies only to cases in which title to land is the subject of the controversy and in which the judgment will operate directly upon the title, and not to those cases where the title to land may be merely a subject of collateral inquiry or in which the judgment will only affect the title incidentally or collaterally. [Ulrici v. Papin, 11 Mo. 43; Railroad v. Mahoney, 42 Mo. 467; State ex rel. v. Court of Appeals, 67 Mo. 199; Bailey v. Winn, 101 Mo. 649; McGregor v. Pollard, 130 Mo. 332; May v. Mortgage Trust Co., 138 Mo. 447; Heman v. Wade, 141 Mo. 598; Price v. Blankenship; 144 Mo. 203; Gay v. Savings & Bldg. Assn., 149 Mo. 606; Bonner v. Lisenby, 157 Mo. 165; Ozark Land & Lumber Co. v. Robertson, 158 Mo. 322; Vandergrif v. Brock, 158 Mo. 681; Davis v. Watson, 158 Mo. 192; Bruner Granitoid Co. v. Klein, 170 Mo. 225; Klingelhoefer v. Smith, 171 Mo. 455; Balz v. Nelson, 171 Mo. 682; Porter v. Railroad, 175 Mo. 96.] Moreover the jurisdiction of the court is not determined by the prayer for relief, but by the facts stated, which constitute the cause of action, and should those facts not warrant the relief asked and it should, nevertheless be granted, this would be error, which could be corrected on appeal, but the jurisdiction of the court would not be affected thereby. The subject of respondents’ first contention has been so thoroughly considered and threshed over in the cases cited and in others therein referred to, that further comment thereon is unnecessary. Not so with the second.”

To the same effect are Baker v. Squire, 143 Mo. 92, and Peters v. Worth, 164 Mo. 431.

It is also disclosed by this record that the streets mentioned in the petition filed in said suit had been abandoned for a period of more than ten years nest before its finding, and that the county court had expended no money or labor upon them during said period.

Under that state of facts it might well be argued that sections 9472 and 9694, Revised Statutes 1899, vested the title to one-half of said streets adjoining said lots in relator. [Sikes v. Railroad, 127 Mo. App. 325; l. c. 335-6; State v. Macy, 72 Mo. App. 427.]

If it is true, as contended for by relator, that he owns the land to the center of said streets, by virtue of the fact, if it be a fact, that the streets were never properly dedicated, or because it reverted to him, by virtue of abandonment and non-user, then, clearly, the decree rendered by the circuit court of the city of St. Louis would directly affect and charge his said real estate with an easement, and thereby establish a public highway over his land in favor of the county of St. Louis. [Baker v. Squire, 143 Mo. 92, l. c. 99, 100; Monroe v. Crawford, 163 Mo. 178.] And to that extent said decree would divest that much of the title and interest in and to said land out of relator, and invest the same in said St. Louis county. [Castleman v. Castleman, supra; Keyte v. Plemmons, supra; Ensworth v. Holly, supra; Railroad v. Mahoney, supra.]

We are, therefore, clearly of the opinion that the circuit court of the city of St.-Louis had no jurisdiction over the subject-matter of said suit filed therein by respondents against relator, nor had it any authority to try and adjudicate the matters and things involved therein.

n. There are several other questions presented and argued by counsel for respondents, but as they go to the merits of the case, they cannot now be considered, for the reason that the circuit court of the city of St. Louis had no jurisdiction to try the cause.

For the reasons before stated, the preliminary rule heretofore issued is made permanent, and a writ of prohibition is ordered to be issued, as prayed.

All concur, Graves, Jin result.


source: Caselaw Access Project

author: LAMM, J. VALLIANT, C. J.

license: Public Domain

text:
    CYNTHIA G. HECTOR, B. W. STEWART, CARRIE G. FRAZIER and WATSON L. STEWART, Appellants, v. DAVID MANN.
    In Banc,
    February 2, 1910.
    1. JURISDICTION: Order of Publication: Sufficient Affidavit. An affidavit in a partition suit, stating that the individual defendants “are non-residents of the State of Missouri,” authorizes an order of publication against such defendants, and if that is sufficient, the court has jurisdiction over them. It is not necessary, where the defendants are individuals, that the affidavit also state that the individual defendants “cannot be served with the ordinary process of law.” x
    2. PARTITION: Amended Petition: Different Land: New Theory on Appeal. Where defendant in the trial court did not object to the amended petition filed in partition that it was a departure from the original petition, described different land and therefore stated a different cause of action, he will not be heard to make that point on appeal. An objection to the amended petition that it did not contain a prayer for an order of publication, did not raise the point.
    3. -: No Approval of Sale. The statute contemplates that the deed shall remain in abeyance until the court has approved the report of the Sale in partition, and a deed made before confirmation is inoperative, unless the coparceners have estopped themselves to question its validity.
    4. -: - — : Minute Book. A memorandum found in a minute book in the office of the circuit clerk indicating that the report of sale in partition was approved, is not a record entry showing the approval of the court. Such a minute is not a judgment: at most it is evidence on which a nunc pro tunc judgment of approval could be based.
    5. -:-: Estoppel: Ratification. The coparceners who were brought into court in the partition suit by order of publication estopped themselves from insisting that the order of sale was not approved by accepting their respective shares of the proceeds of the sales and signing receipts which designated the lands sold and the respective interest of each. And though they state in their suit to remove the sheriff’s deed as a cloud upon their title that they did not accept the proceeds knowing there had been a partition proceeding, yet if the record shows they did know or that the words used in the receipts were sufficient to put them upon inquiry, they will not be permitted to repudiate the sale.

      Held, by VALLIANT, C. J., dissenting, that knowledge sufficient to put them upon inquiry was not sufficient. But they must have had actual knowledge, and if they accepted the money, supposing it was the proceeds of a foreclosure sale of a mortgage on other lands, they are not estopped either by estoppel or ratification.
    6. -: -: -: -: Knowledge of Purchaser: Change of Position. Nor is it necessary in such case, in order that the coparceners who have knowingly received the proceeds of the sale, be estopped from repudiating it, for that it was not approved by the court, that the purchaser should have known and relied upon the receipt of the purchase money and changed his situation to his disadvantage. That is the rule for estoppel in pais, but there are other forms of estoppel, which strictly speaking are acquiescence or ratification, which as completely 'amount to a bar. In those cases the rule is that, when those who are entitled to avoid a sale knowingly adopt and ratify it, equity will estop or bar them from afterwards setting it aside. (VALLIANT, C. J., dissenting.)
    Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
    Affirmed.

      Shepard & Shepard and McKay & Corbett for appellants.

      Ward & Collins and T. J. Brown for respondent.
   LAMM, J.

This is a suit under section 650 to try and determine title to certain real estate in Pemiscot county. The petition also states matters of equitable cognizance and, in its omnibus form, may be considered a bill in equity to cancel and annul a certain deed in partition, remove a cloud upon plaintiff’s title, submitting conditions to be enforced in a certain contingency as the price of the decree.

It is conceded that one Gowah W. Stewart was the common source of title. Dying be left a widow, Cynthia G. (who intermarried with one Hector, now dead) and three children, B. W., Watson L. and Carrie G., the latter intermarried with one Frazier. Said widow and children are parties plaintiff. The case proceeds on the theory that B. W. Stewart has no interest; his title as an heir of Gowah W. passed to one Riley under unchallenged execution sales antedating the partition. Why he is a party is entirely dark.

Plaintiffs allege in their petition that they own in fee the real estate described; that it is not in possession of anyone; that defendant claims some unknown interest, title and estate' in the premises which cannot be stated unless under a certain deed executed by the sheriff of Pemiscot county in pursuance of a decree in partition which decree ordered the sale of the described land belonging to plaintiffs; that if defendant claims through said proceedings and deed they should be held void because these plaintiffs (defendants in said partition suit) were non-residents of the State of Missouri and were not summoned to appear or in any way notified as the law commands; that they had no knowledge of said proceedings, actual or constructive; that the circuit court of Pemiscot county had no jurisdiction over them, and to so deprive them of their property would not be due process of law; that plaintiff, Watson L. Stewart, at the time was a minor, and the plaintiff, Carrie G. Frazier, a married woman. Alleging they did not knowingly receive any proceeds of the sheriff’s sale in partition, but got a small sum of money, the amount of which they do not remember, from the sheriff, they allege they were not informed of the source from which said money was derived and had no knowledge of any of their lands being sold in partition. They aver themselves willing to submit to equitable terms if the proceeds paid them were derived from a partition sale and ask the coiirt to ascertain the fact, adjudge the amount of money so received and allow them to refund to the party or parties jointly entitled: to it with interest-praying, furthermore, that the court determine their interest and that of the defendant, respectively, in the real estate, and define and adjudge the estate and interest of the parties, cancel the sheriff’s deed (if it is the deed under which defendant claims), and vest ont of defendant and into plaintiffs all apparent title under said deed and grant them general equitable relief.

The answer denies plaintiffs’ title and asserts defendant’s. Alleging furthermore that plaintiffs were tenants in common with one William Riley (execution purchaser of B. W. Stewart’s interest); that Riley sued in partition; that such steps were taken in that case that a valid judgment was rendered and the land was sold by the sheriff at a valid and regular sale; that at such sale it was'knocked down to defendant on his bid of $500, and he received a sheriff’s deed conveying all the right, title and interest of plaintiffs in said land; that the bid was all the land was worth at the time of the sale, and that plaintiffs, with full knowledge' of the suit and sale, received from the sheriff the amount bid, knowing it was the consideration paid by defendant; that since the date of that deed defendant has been in actual possession of the land with the knowledge, consent and acquiescence of plaintiffs; has paid the taxes and expended large sums of money since then in good faith under a claim of ownership and made lasting and valuable improvements; that plaintiffs, knowing these things, remained silent and retained their share of the partition money until defendant reclaimed the land from marsh and swamp and made it valuable, wherefore defend'ant invokes estoppel.

For another defense it is alleged that B. W. Stew-' art (prior to the partition) executed to defendant his promissory note for the sum of $275, drawing 8 per cent interest, due January 1, 1897; that in consideration for such loan and to secure the same, plaintiffs executed to one Shead, as trustee, a deed of trust conveying to him the land described in the petition; that the note coming due, said Shead, as trustee, filed an intervening’ petition in said partition, asking to be sub-rogated to tbe rights of plaintiffs in the funds derived from the sale of the lands conveyed by the deed of trust; that such steps were taken in that case that he was subrogated to those rights as to Cynthia G. Hector, Carrie 0. Frazier and Watson L. Stewart; that the land was purchased by defendant at the partition, sale on the judgment rendered in the partition suit; that he paid to the sheriff the amount of his bid, the sheriff by virtue of the terms of the order of the sale accepting in part payment the amount due on said note.

On these several pleas, defendant prayed the court to adjudge the title to be in him; that plaintiffs have no title whatever; that if the court found the partition sale void, etc., then, in that event, a decree go making said deed of trust in full force and effect, a lien on the land; that it be sold under such decree foreclosing the .deed of trust; that the proceeds be applied to the payment of the debt evidenced by the note and for such other and further relief as seems meet and proper.

The reply denied the new matter in the answer.

On issues thus outlined the chancellor found for defendant, decreeing him to be the owner of the land and that plaintiffs have no title. From that decree all the plaintiffs prosecute their appeal.

As said, Q-owah W. Stewart was admitted to be the common source of title. The relationship of the plaintiffs severally to him as hereinbefore set forth was shown and that he died in 1879, leaving plaintiffs his only heirs.

Cynthia G. Hector testified by deposition that she was never summoned or in any other way notified in the partition suit; that she had no knowledge of such proceedings until two years after the sale; that, living then in Arkansas, she employed attorneys there to look after her land, and for the first time ascertained through them that parties were claiming through partition proceedings the land descended to plaintiffs from Gowah W. Stewart. Those attorneys were instructed to bring a suit to recover the land. Witness stated she “never knowingly received one cent from the sale of any of the land.” She admitted plaintiffs received “a small amount of money from the sheriff of Pemiscot county, Missouri, at one time” — the exact amount not remembered. It was very small and witness supposed i.t to be “the balance due from the estate of Gowah W. Stewart there being something said about this being the amount due me after paying Mann Brothers.” (Note: It seems the note hereinbefore referred to was payable to Mann Brothers.) In relation to the deed of trust mentioned in defendant’s answer, she said it was executed to secure B. W. Stewart’s note; that when the sheriff transmitted the money to them, that note was long past due and that plaintiffs understood it to be the balance due them out of the sale under that deed of trust and “had no idea that the money received” was from the sale of the lands in partition.

The -deposition of Watson L. Stewart was read by plaintiffs. At the time of testifying he was twenty-seven years old. His testimony was to the same effect as that of his mother, Mrs. Hector.

To the same effect was another deposition read by plaintiff, to-wit, that of Carrie G. Frazier. Speaking of the money received of the sheriff, she said she “understood it to be money received in some way from the estate of my father, probably from some land sold on account of a mortgage given to David Mann or Mann Brothers. ’ ’

Such was the testimony of plaintiff's in chief.

To sustain his title, defendant offered his original deed in partition from McFarland, sheriff, dated February 21 1898, conveying the land to David and Fred Mann. This offer was objected to “for the reason that judgment in partition proceedings on which said deed is based is void for the reason that the court rendering such judgment had no jurisdiction of the parties defendant in such suit; and for the further reason that said deed purports to convey only the interest of Cynthia Gr. Hector and not the interest of any of the other parties in this cause.” The objection was overruled, the deed admitted and plaintiffs saved the point. As the deed sustained the averments of the answer in that regard (including the payment of $500 bid at the sheriff’s sale), it will not be necessary to cumber the opinion by setting it forth.

Defendant next offered an amended deed bearing date during trial of the pending suit and executed by McFarland, ex-sheriff. In the narrations of the original deed the parties to the partition proceedings were set forth as “William Riley, petitioner against Cynthia Gr. Hector et dl., defendants” — the names of the defendants not otherwise appearing. The amended deed corrected that irregularity. To the offer of this deed plaintiffs’ counsel interposed the same objection they offered to the original with this in addition, “and for the further reason that the sheriff at this late date has no right to make the amended deed now offered, the judgment in the partition proceedings being barred by the Statute of Limitations it being more than three years since the rendition of the judgment.” The objection was overruled, the deed admitted and plaintiffs saved the point.

To further sustain issues on his behalf, defendant put on the stand Mr. McFarland, the sheriff at the time of the partition sale, who executed the foregoing deeds, and who testified that he remembered the sale of the land. He described the partition suit as one “wherein William Riley, a brother of Judge Riley, was plaintiff and Cynthia Gr. Hector, Carrie Gr. Frazier and husband and Watson L. Stewart were defendants.” He identified the land as that described in the deed and partition. He paid to Mrs. Hector, Mrs. Frazier, Watson L. Stewart and William Riley, the funds received from the sale and had the receipts now in hand. He paid Mr. Mann some of the money, sent the checks and receipts to the several defendants and the receipts came hack several months afterwards, the checks being paid in about two weeks, inclosing the checks and receipts by letter; could not say now what he said in the letters; did not go into a detailed report of the matter because he “guessed if they wanted to know they would ask some questions.” The receipts follow:

“Office of the Sheriff of Pemiscot County, Missouri, August 18, 1898. Received of J. H. McFarland, ex-officio sheriff of Pemiscot county, Mo., the sum of thirty-one dollars and 85-100 dollars, being amount in full due me from the distribution of funds derived from the sale of certain real estate sold for partition on the 9th day of February, 1897, under an order issued by the circuit court of Pemiscot County, Missouri, in the case of William Riley v. Cynthia G-. Hector et al.” Signed, “Cynthia 0. Hector,” and marked in the left hand corner, ‘‘ original. ’ ’
“Office of the Sheriff of Pemiscot County, Mo., Aug. 19,1898. Received of J. H. McFarland, ex-officio sheriff of Pemiscot county, Mo., the. sum of $172.13, being amount in full due me from the sale of certain real estate sold for partition on the 19th day of February, 1897, under an order issued by the circuit court of Pemiscot County, Mo., in the case of William Riley v. Cynthia Gr. Hector.” Signed “W. L. Stewart;” “original,” in left hand corner.
“Office of the Sheriff of Pemiscot County, Mo., Aug. 19, 1898. Received of J. H. McFarland, ex-officio sheriff of Pemiscot county, Mo.,, the sum of fifty-five and 73-100 dollars, being the amount in full due me from the distribution of funds derived from the sale of real estate sold for partition on the 9th day of February, 1897, under an order issued from the circuit court of Pemiscot county, Mo., in the case of William Riley v. Cynthia G. Hector et al.” Signed, “Carrie Frazier” — “Original” in left hand corner.

Suspending the testimony of the Sheriff McFarland for the moment in order to explain more fully the receipts and the letters accompanying them, it appears that subsequently plaintiffs produced in court at the trial a letter as and for a copy (mutatis, mutandis) of those received by them severally from the sheriff at the time of the transmission of the money, and introduced that letter in evidence, reading:

“Gayoso, Mov Aug. 19,189...
“Mrs. Carrie Frazier, Pine Bluff, Ark.
“Dear Madam: Herewith I enclose you check for your interest im the Goah Stewart estate less your interest in the ‘Long Field,’ which was decreed to go to Mann Bros. The synopsis of the matter is as follows, to-wit:
Gross proceeds.$768.93
Total expense. 154.13
Net proceeds .$614.80
Mrs. Hector’s dowry deducted. 98.40
Amount to be divided among three heirs... $516.40
One-third of your share of the whole.172.13
Tour interest in Long field which Mann Bros, got. 116.40
Tour interest in balance of the estate.$ 55.73
“I suppose that you understand that this is the proceeds of the balance of the Stewart land which ivas sold in February term of our circuit in ’97, and that Mann Bros, were subrogated to your interest in the Long field on the account of a trust deed signed by you to them. I send you duplicate receipts to sign, as I need one receipt to keep and one to file in court. Please sign and return them as soon as suits your convenience, and oblige, Tours respectfully,
“ J. H. McFaeiaND.
“I just collected this a few days since is the reason it has not been sent ere now. ”

Before introducing that letter it was shown to the sheriff on the stand and he testified in regard to it. Resuming his testimony he said the money mentioned in the receipts was the proceeds of the partition sale after deducting the amount paid Mann on his mortgage. It seems that at the date of the mortgage, Watson L. Stewart was a minor, then shortly to become of ag’e, and that the sheriff on that account was instructed to make no deduction from his share because of the Mann mortgage, and made none; that there were two sales and he also sent plaintiffs their pro rata of the first sale and supposed he received receipts but could not now find them. No complaints were made by the parties at the time. Referring to the letter hereinbefore set forth, he was not prepared to say it was an exact copy, but it was about such a letter as he would have written; that he wrote plaintiffs when he sent the first checks for the first sale, but this letter was written in regard to the proceeds of the last sale.

On cross-examination he said he made two sales of the Stewart land, two reports and' two remittances; that he had the checks he sent for the proceeds of the first sale, they did not relate to the land in question. His recollection was that he sent to each one of the parties a letter with a check and a brief statement showing the amount going to them. His best impression was that the copy of the letter examined by him was a copy of that written to each. It was just such a letter as he would have written and he had no recollection of writing explaining the matter more fully. His recollection was that he furnished each one of them a statement similar to that in the letter put in evidence.

.Plaintiffs objected to the introduction of the aforesaid receipts for the reason there was nothing to show that the money was received with knowledge that it was for this land or lands in which any of the plaintiffs, except Cynthia G-. Hector, had an interest. The objection was overruled and the point saved.

Defendant next introduced an intervening petition filed in the partition suit by Shead, trustee under the Mann deed of trust, having for its purpose to sub-rogate Shead to the rights of defendants in the proceeds, and followed that up by putting in the deed of trust securing the Mann note, signed and executed by Mrs. Hector, Mrs. Frazier and Watson L. Stewart.

Defendant next put in the decree in partition. This decree was objected to for the reason that “no summons had ever been issued directed to the defendants in said suit nor any order of publication made such as the law requires and the defendants in said suit were not in court and the court had no jurisdiction to render the judgment in question.” The objection was not allowed and plaintiffs saved the point.

Defendant next introduced the order subrogating Shead to the rights of defendants in the partition suit to the proceeds derived from the sale of the land conveyed by the deed of trust, to the amount of the secured note, and followed that with various interlocutory orders and judgments in the partition proceeding.

At this point defendant rested.

Plaintiffs offered in rebuttal the original petition in the. partition suit and the affidavit attached upon which an order of publication was based. Among other things in that affidavit was the statement that “the defendants Cynthia G. Hector, Watson L. Stewart, Carrie G. Frazier, James Frazier, are non-residents of the State of Missouri. ”

Plaintiffs next put in an amended petition filed in the same cause. The original petition was filed July 19, 1895' — the amended one on the 4th day of December, 1895'. Neither of these petitions is copied in full in the abstract. The object of introducing them is not apparent further than, as will presently appear, plaintiffs contend the affidavit was not sufficient to support an order of publication. Whether the order of publication was made on the last petition or on the first does not appear. If the object of introducing the amended petition was to show that after constructive service on defendants, an amended petition was filed materially affecting the issues, then such amendments or alterations are not pointed out.

Plaintiffs next, for the -purpose of showing that the report of sale was never approved, put in an order found of record in the Circuit Court Record No. 3, page 229, known as the subrogation order, which narrates, under the caption of the case, that “on this day the sheriff files his report of sale herein.” It then goes on to make a renewing order of sale as to a tract of land not in dispute, provides for subrogation as already stated and says'nothing about an approval of the report of sale.

At this point defendant resumed putting in his proof, as follows: a sheriff’s deed conveying the interest of the plaintiff B. W. Stewart to William Riley. No date is given nor is the deed set out. The abstract says: “Said deed is not set out herein as there is no contention but that William Riley is the owner of B. W. Stewart’s interest.”

Defendant next offered the minute book of the circuit court of Pemiscot county, reading:

“No. 553. The regular judge vacates the bench and Special Judge T. R. R. Ely takes the bench. Report of sale filed and approved. Order of sale renewed as to 184.64 southeast quarter 18-20-12, and 80, east half southwest quarter 27-20-12, A. T. Shead subro-gated to rights.”

To the offer of that minute plaintiffs’ counsel objected. The record shows the following objection which was overruled and an exception saved: “To which offering plaintiffs object for the reason that said order does not describe the land in question, and for the further reason that said minute shows that the approval of sale was made prior to tlie sale of the land in question and is an approval of sale of land made under a prior suit in partition, and for the further reason that this order shows it was made on the 13th day of February, 1896, and the deed offered in evidence shows that this land was not sold until February, 1897.”

Defendant nest offered the record entries of the order of publication and proof of publication, alleged to be fair and regular and hence not abstracted. Declarations of law were asked by plaintiff, which, the cause being in equity, are immaterial.

Such is the record.

It will be seen there is no charge or proof of fraud in the concoction of the judgment in partition and none to the effect that the plaintiffs were injured by, or imposed upon, misled or in anywise hoodwinked into, receiving the proceeds of the partition sale. More significant still, there is no charge or proof that the partition sale was for an inadequate consideration — gross or otherwise. Fo,r aught appearing here, the land sold for all it was worth and plaintiffs received all justly their due in a fair partition. The then minor, Watson L. Stewart, long since of age and doing for himself, admits in his petition that he got his pro rata share of the money, whatever amount it was. The case does not proceed on the theory that it turns on the fact of his minority at the time. It is true he testified he got none of the money but he does not deny his receipt nor does he disaffirm his act as a minor or put himself in a situation to be entitled to disaffirm it on that score. He puts” himself in the same boat with his mother and sister. His theory seems to be that if they have a case, he has — otherwise not. In this condition of things the decree cannot be disturbed on the ground of his minority nor do plaintiffs ’ learned counsel make any point on the fact of minority nor on the other fact of Mrs. Frazier being a married woman at the time. It seems Mrs. Hector was discovert, her husband having died.

There is no brief for respondent and its absence has thrown unnecessary labor upon this court. While respondent may submit his case in that form, if he chooses, resting on the presumption that his judgment was right and the fact that an appellant carries the burden of upsetting it, yet the wisdom of such course is not apparent to us. In the administration of justice by an appellate tribunal an apt brief is a material aid and its absence leaves the case unreasoned and dark on one side.

With which general observations we come to a closer view of the assignments of error.

(a) The main'proposition relied on for reversal is that the affidavit in the partition suit was not sufficient to support the order of publication. It is argued that jurisdiction was never obtained over defendants and there was no due process of law. The vice of the affidavit is said to be that it does not say that defendants “cannot be served with the ordinary process of law.” It will serve no useful purpose to restate the learning on the question. The point has been resolved against appellants in Keaton v. Jorndt, 220 Mo. 117, and in Huiskamp v. Miller, 220 Mo. 135. These cases received diligent attention by our learned brethren in Division Two. They are well reasoned and meet our unqualified approval. The circuit court of Pemiscoti acquired jurisdiction of the persons of the defendants in the suit and the point is disallowed to appellants.

(b) Something is said in appellants’ brief about filing an amended petition in the partition suit. It is argued that it was a departure from the original petition, described different land and stated an essentially different cause of action. But appellants are precluded from making the point that different land was described because they bring here no description of the land set out in either petition. We can see no essential difference in the cause of action stated in the one petition from that in the other, nor does it appear that the point was made or relied on in the court below. When appellants offered the amended petition respondent objected to its introduction for the reason that there was no occasion to show in that petition the prayer for an order of publication. That ground of the objection implies that appellants offered the petition to show the absence of a prayer for an order of publication in the amended petition. No other purpose is indicated by the record, and appellants do not now press upon us that point. The points now made appear to be afterthoughts operating by way of a new revelation, a change in the theory of the case above from that entertained below, and we therefore treat the matter as afield.

(c) When Sheriff McFarland was on the stand he threw a side remark into his testimony earmarking the partition suit, not brought out by any question, hut by way of. descriptio personae, viz., “William Riley, a brother of Judge Riley, was plaintiff.” Based on this pin prick of testimony it is argued that William Riley, plaintiff in the partition suit, was a brother of Hon. Henry 0. Riley, who was judge of the Pemiscot Circuit Court at the time that suit was pending and that he sat in that case; hence the decree in the partition suit was null and void. We shall not elaborate the point. No such ground was urged below to invalidate the partition proceedings. To the contrary, in the pleadings and in many objections below the point does not appear. Not only is it too late to spring such theory on appeal, but there is no testimony directed to the point. We shall not take judicial cognizance that “Judge Riley” is one and the same with Judge Henry C. Riley, Judge of the Pemiscot Circuit Court. The exuberance of American life, though developing under a democratic form of government, permits (in the familiarity of homespun talk), titles such as “Judge” this and “Colonel” that to be given willy nitty. Some colonels and judges (in chimney-corner philosophy) are said to be horn so, others to achieve rank and others to have it thrust .upon them. There may well be in the region in hand other men bearing the honest name of Biley, who are spoken of as “Judge,” besides the elécted officer who has long and well administered justice in the circuit court of Pemiscot. Moreover, it appears affirmatively that Judge Ely presided at some of the judicial steps in that partition proceeding. In the absence of showing to the contrary, the presumption is he presided throughout in every vital judicial act. This, since a circuit court in Missouri is presumed to proceed by right and not by wrong. Appellants make the stout statement that Judge Henry C. Eiley determined a cause in which his brother was a litigant, without the consent of the parties to the suit and in contravention of the statute. [R. S. 1899, sec. 1602.] This charge is equivalent to a lapse in a refined’ sense of judicial propriety. It has no basis in this record and is made inadvertently by learned counsel. The point is ruled against appellants.

(d) It is next argued there was no approval of the report of sale, hence the deed, made without warrant of law, does not operate to vest title. "Whatever may he the rule in execution sales generally, relating to their approval by the court out of which process issued, our statute on partition contemplates that a deed shall remain in abeyance until the court has approved the report of sale. [R. S. 1899, secs. 4410 and 4414.] Indeed, until an amended statute permitted appeals from an interlocutory judgment in partition (R. S. 1899, sec. 806), the approval of the report of sale was the final and only judgment from which an appeal would lie (Buller v. Linzee, 100 Mo. 95), and the statute still permits appeals from a final judgment in partition. [Sec. 806; supra sec. 4424, R. S. 1899.] The statutory theory being that the deed shall not pass until the sale has been judicially affirmed, accordingly it has been pointedly ruled that a deed made before the confirmation of the sale is inoperative. [Burden v. Taylor, 124 Mo. 12; Clark v. Sires, 193 Mo. 502; Thomas v. Elliott, 215 Mo. 598.]

In this case there is no record entry showing the approval of the report. Defendant introduced a memorandum found in a minute hook in the office of the clerk of the Pemiscot Circuit Court indicating that a report of sale was approved. But this minute was never amplified and dignified into a record entry. Such a minute is in no sense a judgment of the court approving the sale. It may be evidence upon which a nunc fro tunic entry could be based. [See Reed v. Colp, 213 Mo. l. c. 586 et seq., and cases cited.] The objections made below to the introduction of this minute were properly overruled because they did not make the point we are now considering and which appellants press here. But the probative force of the evidence has to be dealt with in an equity case and we cannot very well write the law to the effect that the loose memoranda of a clerk (a mere egg out of which a record entry is to be batched and frequently dealing with abbreviations and other matter intended to refresh the memory), shall stand in the place and stead of a solemn record entry in the proceedings of a court of justice.

If there were nothing more in the case we would reverse the judgment and remand the cause for a new trial in order to permit defendant (if he so elects) to apply for a nunc pro tunc entry and procure the same if the proper data exist to warrant it. But there is something else in the case, viz.:

(e) Conceding that the deed was prematurely made under the present record, yet it does not follow that plaintiffs were entitled to a decree determining and vesting title in them or any of them. They are confronted with the fact .that they received the fruits of a judicial sale and now seek to repudiate the sale. They say they did not knowingly accept the proceeds of a sale in partition. But the record is against them. The sheriff’s letters sent respectively to them refer to their interest in the ‘ ‘ G-owah Stewart estate, ’ ’ to Mrs. Hector’s “dowry” and a commutation of the same, to the respective interests of the heirs in land sold at a term of the circuit court, to the fact that subrogation was “decreed” and that a receipt was demanded to “file in court. ” If we recur to the receipts they sufficiently indicate that the money distributed arose from a “partition” sale. They say so in so many words. If defendants did not know the meaning of all the terms used, they were sufficient to put them upon inquiry and they made none. The record does not show they were illiterate people, unfamiliar with the use of fair English words indicating a proceeding in court, a judgment, sale' and distribution of proceeds to heirs, and it would be dangerous to justice to permit a mere statement from a witness that he did not understand or did not know what was plainly told him, to overcome the force and effect of such documentary evidence.

But it is argued that in order to operate as an es-toppel the purchaser should have known and relied upon the receipt of the purchase money and changed his situation to his disadvantage because of such reliance. I cannot agree such argument is sound. There are estoppel and estoppels and some forms of them are so defined by law-writers and jurists as to make one element in the estoppel the knowledge and reliance of one party upon the acts and conduct of the other — for instance, estoppel in pais, arising from misrepresentation by word, act, conduct or silence. But there are other forms of estoppel in which knowledge of the fact upon the part of the person invoking the estoppel, and reliance upon the fact and a change of situation based upon that reliance, is not an element. It may be that ‘ ‘ estoppel, ’ ’ speaking with precision, is the wrong designation and that in attempting to classify and give names the doctrine we are about to invoke is improperly classified as “estoppel” and that it does not come under that head but springs from election, ratification, affirmance, acquiescence, acceptance of benefits or what not. It is classed, however, by law-writers under the head of “quasi-estoppel.” [Bigelow on Estoppel (5 Ed.), p. 693; 16 Cyc., p. 787, 784 et seq.]

Says Bigelow: “Many of the cases upon this subject it will be noticed, are simply cases of ratification or acquiescence; and it is a questionable use of terms, as we have seen, to apply the word 'estoppel’ to them. A few more cases will serve to enforce this observation. Thus, if heirs of age join in a deed of quitclaim with a trustee of the ancestor’s real estate, to complete title made by a previous deed executed by the trustee, it is said that they will thereafter be ‘estopped’ from contesting the validity of that earlier deed. So if a man assent with knowledge of the facts to the appropriation by an officer of the law of moneys arising from a judicial sale, he will be estopped thereafter from objecting.”

The same careful writer says (p. 684), under the head of “Quasi-Estoppel: Election” and a subhead, “Inconsistent Positions:” “Thus, a party actively affirming a transaction’ such as a contract or a purchase, by receiving and retaining money upon it, is es-topped thereafter to deny the force of any of its express or implied terms or conditions.” He suggests there is no great objection to the use of the term “es-toppel” in such cases if used as a synonym with “bar” or “preclusion” (p. 694).

Under the subheads of “Acceptance of Benefits” and “Quasi-Estoppel” (16 Cyc., supra), it is said: “Where one having the right to accept or reject a transaction takes and retains benefits thereunder, he becomes bound by the transaction and cannot avoid its obligation or effect by taking a position inconsistent therewith.” But the custom is to include the doctrine just announced under the head of “estoppel” and so the case learning terms it. If it were to be held that one invoking the doctrine should know the fact of acceptance of. the proceeds of a judicial sale and in reliance upon that acceptance, change his condition, the doctrine would have little application in the practical administration of justice. It is not the rule for purchasers at judicial sales to interest themselves in the distribution of the amount bid, in the first instance nose out the diposition of such funds and act on the strength of knowledge so obtained. It is sufficient that when their title is assailed they are able to show by way of defense that the assailant elected to affirm the transaction by accepting the fruits of the sale. A long line of cases in Missouri sustains that doctrine on grounds of elevated morals. In no case we can find, breaking on the exact point, was any stress laid upon the fact that the party invoking this particular form of estoppel need know at the outset of the act of affirmance or change his position on the strength of it in order to make it effective as a defense. In some of those cases other forms of estoppel were present and the discussion is broad enough to cover them, but in the precise form up for consideration the rule is as stated above.

In McClanahan v. West, 100 Mo. l. c. 323, it was said: “And then there are the receipts given by the minors, and by the plaintiff herself, after she attained her majority, when acting in the presence, and under the advice of her counsel for her share of the proceeds of the sale in partition. If she knew from what- source these proceeds came and still receipted for them, and there is good reason to believe she did know, she certainly would not be allowed to repudiate the transaction now, even if the partition proceedings were, in fact, void. She certainly could not have both the money and the land. [Austin v. Loring, 63 Mo. 19, and cases cited.] ”

In Austin v. Loring, 63 Mo. l. c. 22, it was ruled as follows: “But no person will be allowed to adopt that part of a transaction which is favorable to him, and reject the rest to the injury of those from whom he derived the benefit. When those who are entitled to avoid a sale adopt and ratify it, equity will estop them from afterwards setting it aside. When a sale of land is made no person can be permitted to receive both the money and the land.It makes no difference whether the proceedings under which the sale occurs are voidable or wholly void in consequence of the want of jurisdiction.” In that case this court also says: “Where a party has taken the fruits of a judicial proceeding, he should not afterwards be heard to.question it. Though an estoppel may debar the truth in a particular ease, yet, as was said by the Supreme Court of the United States in Van Ranselaer v. Karney (11 How. 326), it imposes silence on a party only when in conscience and honesty he should not be allowed to speak.”

In Nanson v. Jacobs, 93 Mo. l. c. 344 et seq., the question was discussed and many cases cited. The substance of them all is that where an election exists between inconsistent remedies the party is confined to the remedy which he first prefers and adopts. The Nanson case related to hops and it was held that: “For the most obvious reasons, then, the plaintiffs could not with one hand gather in the proceeds of the hops, in the assignee’s court, and with the other hand take the hops and their proceeds in the circuit court. ’ ’ To the same effect is Boogher v. Frazier, 99 Mo. 325; also Clyburn v. McLaughlin, 106 Mo. 521. In the last case it was held, in effect, that an owner of land sold for delinquent taxes, who, with knowledge of the facts, accepts a part of the proceeds, thereby recognizes and ratifies its validity and will not afterwards be heard to question it. In Pockman v. Meatt, 49 Mo. 345, the same proposition is resolved. In Fischer v. Siekmann, 125 Mo. 165, the doctrine was applied to the receipt by an heir of his share in a partition sale. In that case the guardian received the share and afterwards the heir gave an acquittance on final settlement. In Meddis v. Kenney, 176 Mo. 200, the doctrine was applied to an heir who had received his share of the surplus proceeds of land sold by an administrator for the payment of debts. To the same effect is Cadematori v. Gauger, 160 Mo. 352.

In a very late case, Proctor v. Nance, 220 Mo. 104, a defendant in a tax judgment and sale (one Hall) subsequently quitclaimed his interest to plaintiff who sued the purchaser. After paying the taxes and costs, defendant’s bid created a surplus of $4.75. Some time afterwards this surplus wa^ deposited in the county treasury. Thereafter Hall gave an order for it, which order was honored. The defendant pleaded this fact as an affirmance of the sale and an estoppel. It nowhere appears that defendant, prior to preparing his defense, knew anything about the appropriation of this small surplus or in aught changed his position because of such acceptance. In considering those facts, GaNtt, J., among other things, said: “To obviate the effect of Hall demanding and receiving the surplus of the purchase money paid by the defendant Nance at the sheriff’s sale plaintiff pleads that Hall at the time he gave the order for said surplus had no knowledge that the sale was void, and that Hall was an uneducated person, and did not intend to ratify said sale by receiving said surplus. But the very character of the transaction of taking the surplus of the sale necessarily advised Hall that his land had been sold, and that this was a part of the purchse money paid by the defendant at the execution sale. It carried notice upon its face, or at least was of that unequivocal nature that it put Hall upon inquiry as to the source of that surplus and why it was there in the treasury for him and it must be held that he had notice that his land had been sold for the taxes under the tax judgment. He had the option to refuse to take down this surplus and bring this action to remove the cloud from his title, or he could ratify the sale even though it was a void judgment, and thereby estop himself from disputing the validity of the proceedings under which the land had been sold. In this case the defendant Nance had the means of knowing whether the proceedings in the tax case were valid or void and so far hid at his peril, hut he paid his money in good faith, and Hall, with knowledge that the defendant had bought and paid for the land and that this purchase money had gone to the satisfaction of the taxes on the land, demanded and received the surplus from the treasury, and thus must he held to have ratified the sale. The doctrine announced in Austin v. Loring, 63 Mo. 19, has recently been reaffirmed and approved by this court In Banc at this term of this court, in the case of Cape Girardeau & Thebes Bridge Terminal Railroad Co. v. Southern Illinois & Missouri Bridge Co., 215 Mo. 286. The attempt of the plaintiff herein to avoid the effect of taking down this surplus and ratifying the sale by tendering back the amount of the surplus into court to be repaid to the county treasury was futile, as the rights of the parties were fixed when the sale was ratified by the demanding and receiving of said surplus by Hall, the grantor for the plaintiff herein. Nor do we think the plea that Hall was an uneducated person and did not intend by receiving the surplus to ratify the sale, can avail the plaintiff in this case. There is not the slightest pretense that the defendant Nance, or, for that matter, any other person, made any false representation to Hall to induce him to accept said surplus, and, in the absence of some overreaching of him in the matter, his ignorance of the law cannot be allowed to nullify his act in taking a part of the purchase money. In our opinion the defendant Nance is entitled to the benefit of this principle of estoppel in this case.”

The Cape Girardeau and Thebes Bridge Terminal Railroad Company case, 215 Mo. 286, cited in the Proc-. tor case, supra, is an illuminating discussion of the proposition in hand. In that case, defendant did nothing on the strength of plaintiff’s taking down the condemnation money deposited in court in a case bottomed on the exercise of the right of eminent domain. All the defendant knew and did was known and done prior to that time. When the money was taken down the case was in this court on appeal and yet, on suggestion made here, we ruled unanimously that after receiving that money in another suit plaintiff could no longer question the condemnation proceedings.

The case at bar is a typical case to apply the doctrine we have been discussing. There are features strikingly in common with the Proctor case and which excuse our liberal quotation from so late an opinion.

Apposite is the following significant admission in appellants’ brief: “They [defendants in the partition — -plaintiffs here] received the money in good faith, believing it was the surplus over and above the amount of the debt for which the land was sold under the deed of trust and supposed their interest in that had been sold and made no further claim to that land. ’ ’ Yet in the suit at bar they , are claiming the identical land covered by the Mann deed of trust, discharged of the lien. That is to say, if they had lost it by foreclosure of the mortgage they would rest content with the surplus of that sale in pocket. But as they lost it by partition sale, the receipt of the proceeds does not satisfy or bind them. There is no great amount of equity in that proposition.

But we have pursued the matter far. To sum up, we rule that by receiving the proceeds with knowledge of the source from which they came they elected to treat the report of sale as approved. They substituted their own approval for that of the court and are bound by it.

This cause was assigned to Division One and the foregoing opinion by Lamm, «T., was there handed down. The canse subsequently coming into Banc on a dissent, was reheard there. Something was said in oral argument in relation to subrogating the Mann Brothers to the extent of their mortgage debt in the proceeds of the sale of the mortgaged premises, and it was argmed the court had no power to make such substitution on an intervening petition in a case where defendants were brought in by constructive service. But no such error was assigned in appellants’ brief. "We, therefore, say nothing on the question.. The divisional opinion is adopted In Banc as that of the court.

The premises considered, the judgment is affirmed.

All concur except Vallicmt, C. J., who dissents in an opinion filed.

DISSENTING OPINION.

VALLIANT, C. J.

I concur in all of the opinion of my learned brother Lamm in this case except in the result, and except also what is therein said in paragraph e on the subject of estoppel. Before we render judgment taking a man’s land from him and giving it to another on the ground of estoppel we should have some equities in the case strong enough to ride over and bear down the law. Estoppel is a doctrine of equity and should be applied only when equity demands it. The party to be estopped, must, knowingly, have acted in such a manner .as to mislead his adversary and his adversary must have placed reliance on the action and have acted as he would not otherwise have done. Ratification arises when a party knows that he is not bound by the contract that has been made in his name and is free to repudiate it if he will, but, on being informed that such contract has been made in his name and informed of the essential features of it, chooses to adopt it as his own.

As I have endeavored to point ont in my dissenting opinion in Hector v. Warren, post, p. 255, the evidence does not make ont a case for the application of either the doctrine of estoppel or that of ratification.

Bnt this case differs from that of Hector v. Warren in this, to-wit: Here the land in question is the land that was conveyed to the trustee to secure the debt of W. B. Stewart to Mann Brothers; the plaintiffs had joined in that conveyance, they knew that Mann Brothers held that deed of trust and they say in their brief: “They received the money in good faith, believing it was the. surplus over and above the amount of debt for which the land sold under the deed and supposed their interest in that had been sold and made no further claim to that land.” It seems that the land was never sold under the deed of trust, but under the partition decrees together with a considerable quantity of other land. The record shows that the court let the mortgagee come in as a party to the partition suit and subrogated him to the rights of the plaintiffs in the proceeds of the sale of the land covered by the deed of trust, and awarded to him the proceeds of the sale of that land. There was nothing in the original petition on which the order of publication was founded that gave notice that any such proceeding was contemplated. So far, therefore, as the land in this case is concerned there is no pretense that these plaintiffs got the proceeds. The parties managing the proceeding seem to have gone on the theory that the plaintiffs having mortgaged the land had no further interest in it, and they treated the mortgagee as the owner of the equity, without takiug the trouble to foreclose the mortgage. As the decree was rendered on default of appearance of the parties brought in by the publication, it is probable that the attention of the trial court was not especially drawn to this peculiar phase of the case, but however that may be it was an illegal proceeding and one of which these plaintiffs had not even constructive notice. The only interest of these plaintiffs that could have been sold at the partition sale was their equity of redemption, but the court put the mortgagee in their shoes and awarded to him the proceeds of the sale of that equity of redemption. A mortgagor’s interest in the mortgaged land may be sold under a decree in partition, but the purchaser at such sale would take the land subject to the mortgage. I do not now say'that, if a scheme to substitute the mortgagee for the mortgagor had all been set out in the original petition of which these plaintiffs by the order of publication are presumed to have had constructive notice, and they suffered it to go without complaint at the time, they could afterwards have complained of it, although I find no sanction for such a proceeding in the statutory proceeding for partition, but I do say it could not be injected into that suit without any notice, actual or constructive, to the parties whose interests were involved. If we give to this constructive notice full effect it was notice only that a suit in partition was filed wherein it was -proposed to sell their equity of redemption in the mortgaged land, that a sale, thereunder would carry to the purchaser their interest subject to the mortgage, and that the proceeds of the sale of their equity would go to them. But after the suit was filed and while it was pending, without any notice to them an entirely new feature was injected into it. "Whatever may be the fact with reference to the other land certain it' is these plaintiffs never received the proceeds of the sale of the land in suit in this case. In my opinion so much of the proceedings in the partition suit as admit the trustee in the Mann Brothers’ deed of trust to take the place of these plaintiffs and receive the proceeds of the sale of their equity of redemption is void. The judgment in this case ojight to be reversed.