author: BRACE, P. J.

text:
    CLARK et al. v. SIRES, Appellant.
    Division One,
    February 22, 1906.
    1. PARTITION. No additional estate is conferred upon the par-ti ti oners by a suit, and judgment in partition.
    2. REMAINDERMEN: Sale During Life of Lifetenant. A deed conveyed land to a wife for life and the remainder to the heirs of her body, and the wife and certain of the children joined in a deed to a purchaser. Held, that the grantee acquired the interest of such of those children as survived the mother, but did not acquire anything from such of them so joining in the deed as did not survive her, whether they died leaving children of their own or not.

      3. PARTITION SALE: No Approval. A sale of land by tbe sheriff under a judgment in partition is a judicial sale, and must receive tbe approval of tbe court to be valid. A deed made in 1870 by tbe sheriff before tbe sale was reported, and tbe report thereafter made having never been appoved or the sale confirmed by tbe the court, passed no title to tbe purchaser.
    4. -: -: Implied from Record Entries. .The confirmation of tbe sale in partition, being a final judgment, must appear upon tbe record in unequivocal terms, and will not be inferred from recitals of doubtful meaning.
    Appeal from Grundy Circuit Court. — No». J. W. Alexander ¡ Judge.
    Affirmed.

      Harder é Knight and Peery & Lyons for appellant.
    (1) The contingent remainder vested in the parties to the partition suit was a sufficient interest to authorize the court to make partition. Those persons who constituted the presumptive heirs of Cynthia Clark, or their grantee, were before the court, and they represented all who might afterwards become entitled to the estate. Reinders v. Koppleman, 68 Mo. 482; Sikeman v. Galvin, 124 Mo. 367; Sparks v. Clay, 185Mo.393. The plaintiff in the partition suit, though the owner of the life estate, was also part owner in the remainder, and was therefore entitled to maintain partition against the other remaindermen. Atkinson v. Brady, 114 Mo. 200; Hayes v. McReynolds, 144 Mo. 348. (2) The order of publication was regular and sufficient and the judgment rendered thereon was as valid as if made on personal service. Tooker v. Leake, 146 Mo. 419. And if there were irregularities or informalities in the notice by publication, the judgment would not thereby be open to collateral attack. Adams v. Cowles, 95 Mo. 501; Schmidt v. Neimeyer, 100 Mo. 207; Charley v. Kelley, 120 Mo. 134; Cruzen v. Stephens, 123 Mo. 134; Winningham v. Trueblood, 149 Mo. 572. (3) The judgment found entered on the records of the court is conclusively presumed to be the judgment of the court. Parol evidence is not admissible to overthrow it. If interlineations appear in it they are presumed to have been directed by the court. Adams v. Betz, 1 Watts (Pa.) 425; Belkin v. Rhodes, 76 Mo. 643; Railroad v. Holschloz, 144 Mo. 253; 1 Black on Judg. '(2 Ed.), sec. 124. (4) Even though judgment should be held void as to the defendant.Mildred Allen, because it is shown her true name was Mildred Lieuallen, still this would not affect its validity and binding force as to the other parties to the action. Brawley v. Ranney, 67 Mo. 280; Cochran v. Thomas, 131 Mo. 258; Stevenson v. Black, 168 Mo. 549. The court had a perfect right to direct the correction of any omission or mistake in the entry of the judgment. And such correction could be made by interlineation without impairing the judgment or rendering it void. Allen v. Sales, 56 Mo. 28; Stevenson v. Block, 168 Mo. 561. (5) The judgment in the partition suit and the sale thereunder cannot be attacked collaterally. 1 Black on Judg. (2 Ed.), secs. 245, 246, 252, 261, 262; Akers v. Hobbs, 105 Mo. 127; Hope v. Blair, 105 Mo. 93; Lewis v. Morrow, 89 Mo. 174; Hamer v. Cook, 118 Mo. 476; McKenzie v. Donnell, 151 Mo. 450. (6) The final order made in the partition case is sufficient to show an approval or confirmation of the sale. 17 Am. and Eng. Ency. Law (2 Ed.) 992; 1 Black on Judg, (2 Ed.), sec. 123. Without an order of confirmation the sheriff and purchaser take on themselves the risk of determining that the case is one in which such an order would be fit and proper, if the case be really such, then the order will be presumed to have been made and its actual entry of record is unnecessary. Brown v. Cable, 76 N. C.-391; Fleming v. Roberts, 84 N. C. 532. (7) The approval of the sale need not necessarily appear by formal entry. It is sufficient if the approval can be gathered from the whole record. Jones v. Manley, 58 Mo. 564; Henry v. McKerle, 78 Mo. 430; Grayson v. Weddle, 63 Mo. 523; Carey v. West, 139 Mo. 179; Long v. Joplin M. & S. Co., 68 Mo. 422; Gilbert v. Cooksey, 69 Mo. 42; Moore v. Davis, 85 Mo. 464; State to nse v. Jones, 89 Mo. 470; Noland v. Barrett, 122 Mo. 190. (8) The sheriff’s sale and deed thereunder cannot be collaterally attacked for the want of a confirmation of the sale, for any irregularity which does not affect the jurisdiction of the court. Evans v. Eobberson, 92 Mo. 192; Matney v. Graham, 50 Mo. 559; Lewis v. Morrow, 89 Mo. 174; Homer v. Cook, 118 Mo. 476; Miller v. McMannis, 104 111. 421; Eeed v. Austin, 9 Mo. 722; 17 Am. and Eng. Ency. Law (2 Ed.), 1033; Price v. Eeal Est. Assn., 101 Mo. 107. (9) Every presumption is to be indulged in favor of the validity of the judgment and sale thereunder. Especially is this true where such a length of time has elapsed as in this case. Davis v. Green, 102 Mo. 170; McClanahan v. West, 100 Mo. 309; Williams v. Mitchell, 112 Mo. 300; Brown v. Oldham, 123 Mo. 631; 1 Black on Judg. (2 Ed.), sec. 270; Homer v. Cook, 118 Mo. 476; Thomas v. Malcom, 39 Ga. 328; Childs v. McChesney, 20 la. 431; Osborn v. Weldon, 146 Mo. 185; Price v. Springfield. E. E. Co., 101 Mo. 107; Bray v. Adams, 114 Mo. 486; Adams v. Cowles, 95 Mo. 501.

      Platt Ilubbell and George Hubbell for respondent.
    (1) In the trial court appellant agreed that Tabor’s attorney had, with a lead pencil, changed the order of sale. Appellant there made no objection to this agreement being considered as evidence — in fact, made the agreement as a part of the evidence in the case. Defendant cannot change front here. He is bound by his trial court theory. Bray v. Seligman, 75 Mo. 40; Casler v. Chase, 160 Mo. 425; State v. O’Neill, 151 Mo. 81. (2) The Austin-Clark deed conveyed a life estate to Cynthia Clark, remainder in fee to the heirs of her body. Under this deed plaintiffs are entitled to eight-tenths of the land in controversy. Phillips v. LaForce, 89 Mo. 72; Tesson v. Newman, 62 Mo. 198; Frame v. Humphreys, 164 Mo. 346 ; Utter v. Sidman, 170 Mo. 284; Christ v. Kuehne, 172 Mo. 118. (3) The children and heirs of Cynthia Clark had no remedy but this one. Revised Statutes 1899, section 806, allowing appeals from interlocutory judgments, was not in force when this partition proceeding was had. Revised Statutes 1899, sec. 650, is of recent enactment. “Appeals can only be taken from a final judgment either under the general practice act, or the statute regulating procedure in cases of partition. In a partition suit the order of sale is is not a final judgment from which an appeal will lie.” McMurtry v. Glascock, 20 Mo. 432; Holloway v. Holloway, 97 Mo. 639; Murray v. Tates, 73 Mo. 13. “The order of sale is not a final judgment, from which an appeal will lie. It is the order of approval and distribution which constitutes the final judgment.” Turpin v. Turpin, 88 Mo. 340; Goode v. Lewis, 118 Mo. 361. It follows from the foregoing that the children and heirs of Cynthia Clark had no remedy by appeal, with respect to the partition proceeding. Since the sheriff’s deed is void for the reason that there was no report of sale and no approval thereof, ejectment is the proper remedy. McClanahan v. "West, 100 Mo. 323; Baldwin v. Dalton, 168 Mo. 30. The quit-claim deeds executed by Ellen Warmoth and James G. Clark (the only remaindermen whose interests, in this proceeding, involve quit-claim deeds) conveyed no title for the reason that these remaindermen died before the life tenant. Godman v. Simmons, 113 Mo. 132; Emmerson v. Hughes, 110 Mo. 631; Butler v. Fitzgerald, 27 L. R. A. 255. (4) This partition proceeding violates both the spirit and the letter of the foregoing rule. Its purpose is, not to relieve Willian B. Tabor of any of the inconveniences of a joint tenancy, but, to secure the fee simple title to this 160' acres of land for nothing and by a trick. This purpose will fail for tbe reason that tbe proceeding was conducted in sucb a way that tbe sheriff’s partition deed is void. Sale by sheriff and sheriff’s deed void because no report of sale and no confirmation thereof. Sparks v. Clay, 185 Mo. 407; Pomeroy v. Allen, 60 Mo. 530; Wauchoupe v. McCormick, 158 Mo. 667; Burden v. Taylor, 124 Mo. 12; Gr. S. 1865, p. 615; Bone v. Tyrrell, 113 Mo. 186; Valle v. Fleming, 19 Mo. 463; Rorer on Jud. Sales, sees. 12, 336, 459; Stephens v. Ells, 65 Mo. 460; 21 Am. and Eng. Ency. Law (2 Ed.), 1162,1205; 17' Am. and Eng. Ency. Law (2 Ed.), 989; Vanfleet, Collateral Attack sec. 14; Campe v. Sancier, 24 Am. St. Rep. 274; Hutchinson v. Shelly, 133 Mo. 412. Sale void because no notice of application for the order of sale that was made. Janney v. Spedden, 38 Mo. 402; Holland v. Johnson, 55 Mo. 50'; Bobb v. Woodward, 42 Mo. 489; Roberts v. Co., 126 Mo. 469; Gr. S. 1865, p. 681, sec. 12. Sale void because no order of sale upon which to base the sale that was made. Hughes v. Hughes, 72 Mo. 138; Burnham v. Hitt, 143 Mo. 421; Evans v. Snyder, 64 Mo. 518; Stoffel v. Reiners, 3 Mo. App. 39; Freeman on Void Judicial Sales (4 Ed), sec. 36.
   BRACE, P. J.

— The petition in this case is in two counts. The first is in the ordinary form in ejectment to recover the possession of the northwest quarter of the southwest quarter of section thirteen, township sixty-two, range twenty-five, in Grundy county; and the second is under section 650, Revised Statutes 1899, to quiet the title to the same.

The answer was a general denial, and a plea of the Statute of Limitations.

The case was tried before the court without a jury. The judgment was for the plaintiffs for eight-tenths of the land sued for and a decree quieting the title to the same, and tbe defendant appeals:

James Austin is the common source of title. By his deed, dated the 10th day of November, 1851, the title to the real estate in question, together with other lands, was vested in Cynthia Clark, wife of Orverly S. Clark, for life, remainder in fee simple to the heirs of her body. Her husband died in August, 1859, and she died on the 22nd of September, 1902, and this suit was instituted on the 15th of January, 1903. Thirteen children were born to the said Cynthia, of whom six died before their mother. Three, Missouri Ann, Elizabeth and Joseph H., childless; and three, Ellen, Nicholas S. and James Gr., each leaving children who survived their grandmother. The other seven children who survived their mother were John Gr., Overly S., William A., Mildred J., Julia, Nancy J. and Casander. After the death of Cynthia Clark and before the commencement of this suit, the said William A., by deed, acquired the title of the said John Gr., Mildred J. and Julia in the premises; and he, the said Overly S., the children of the said James G., the children of the said Nicholas S. and the children of the said Ellen, deceased as aforesaid, are the plaintiffs herein, and as remaindermen are entitled to an undivided eight-tenths of the premises, unless their title has been divested.

By deed dated the 7th day of April, 1865, the said Cynthia Clark, and two of her children, the said Nancy J. and Ellen, conveyed their title in the premises to one William B. Tabor. By deed, dated July 26, 1867, the said James Gr. conveyed all his title as heir of Overly Clark’s estate in the premises to the said Tabor. By deed, dated June 6th, 1868, the said Casander conveyed her title to the premises to the said Tabor, and thereafter the sheriff of Grundy county conveyed the premises to the said Tabor by the following deed duly acknowledged, to-wit:

“To all to whom these presents shall come, I, Nathan Aj Winters, as the sheriff of Grundy county in the State of Missouri send greeting:
“Whereas, in the case of William B. Tabor, plaintiff, against John Clark, William Clark, Nicholas Clark and Mildred Allen,-------Allen, her husband, Julia A. Clark, Orville S. Clark, defendants, it is ordered by the circuit court of Grundy county aforesaid at the March term thereof, A. D., 1870, that the following lands in said county to-wit: The west half of the southwest quarter of section 13, and the east half of the southeast quarter of section fourteen, in township sixty-two of range twenty-five, subject to the life estate of Cynthia C. Clark, be sold for petition and division among plaintiff and defendants for cash in hand, and whereas in pursuance of said order of sale, I, as the sheriff of said county, caused a notice that said lands would be offered for sale at public vendue at the court house door of said county on the 5th day of September, A. D., 1870, between the hours of 9 o’clock a. m. and 5 o’clock p. m. of that day, and during the sitting of said court, for cash in hand, to be published in the (Grand River Republican) a weekly newspaper printed and published in said county, for at least twenty days prior to said day of sale, and whereas at the time and. place and on the terms last aforesaid, I, as sheriff as aforesaid, having previously ascertained that said lands altogether constituted one farm and could be more advantageously sold in a body than it could be in separate lots, tracts, or subdivisions, offered said lands for sale in one body at public auction, and William B. Tabor being the highest and best bidder for the whole of said land subject to the life estate of the said Cynthia Clark at and for the price and sum of $100, the same was stricken off and sold to him for that sum, and, whereas, the said William B. Tabor did fully comply with the terms of said sale and did pay to me as sheriff as aforesaid the sum of $100. Now, therefore, in consideration of the premises, I, said Nathan A. Winters, as sheriff aforesaid, do hereby sell, transfer and convey the real estate aforesaid subject to the life estate aforesaid, to Mm, the said ¥m, B. Tabor, his heirs and assigns forever. In witness whereof, I have subscribed my name and affixed my seal as sheriff, as aforesaid, this 8th day of September, A. D., 1870.
“1ST. A. Winters,
“(Seal.) • Sheriff.”

Afterwards, by mesne .conveyances the defendant acquired all the right, title and interest of the said Tabor to the premises, and claims that by virtue of the conveyances aforesaid the title of all the remainder-men had been vested in him.

I. As in partition m> additional estate is conferred upon the partitioners (Whitsett v. Wamack, 159 Mo. 14; Harrison v. McReynolds, 183 Mo. 539; Sharp v. Stewart, 185 Mo. 518), the first question to be determined is, what interest in the premises did Tabor acquire by the deeds aforesaid other than that of the sheriff? By the deed of Cynthia and her two children, Nancy J. and Ellen, he acquired the life estate of the said Cynthia,, and the said Nancy J. having survived her mother, he also acquired her remainder, or an undivided one-tenth interest in the premises in fee simple. But as the said Ellen did not survive her. mother that was all the interest he acquired in the remainder by that deed, and as the said James Gr. did not survive his mother he acquired no interest in the remainder by that deed, even if it had contained apt words conveying his interest in the remainder, which it did not, and as the said Oasander also survived her mother, by her deed he acquired her interest in the remainder or another undivided tenth interest in fee simple in the premises, and these two-tenths was all the interest he acquired in the fee simple remainder by the foregoing deeds. [Emmerson v. Hughes, 110 Mo. 627; Goldman v. Simmons, 113 Mo. 122.] This brings us to the main question in the case.

II. What interest, if any, did he acquire by the sheriff’s deed aforesaid conveying the premises, with other lands, to the said Tabor? This question must be determined upon the record of the court in the partition proceeding in which it was made, the whole of which was offered in evidence to impeach it, and by which it appears that on the 11th of June, 1869', a suit in partition was instituted in the Grundy Circuit Court by petition, as follows :

“William B. Tabor, Plaintiff, v. John Clark, Nicholas Clark, Mildred Allen, —Allen her husband, Julia A. Clark, Orville S. Clark and William Clark, Defendants.
“Plaintiff states that plaintiff and defendants are the owners and hold in joint tenancy the remainder after the expiration of the estate during the natural life of Cynthia C. Clark of the following lands in Grundy county, Missouri, to-wit: The west half of the southwest quarter of section thirteen; the east half of the southeast quarter of section fourteen, in township sixty-two, of range twenty-five.
“That the rights of all persons in said real estate are as follows, to-wit: The plaintiff is entitled to four-tenths of said real estate, and that defendants John Clark, Nicholas Clark, Mildred Allen, Julia A. Clark, Orville S. Clark and William Clark are each entitled to one-tenth of said real estate, all subject however to the said estate during the natural life of said Cynthia C. Clark.
“Plaintiff states that he knows of no other person or persons holding or claiming any interest in said remainder in said real estate and that the rights of all the parties therein are hereby correctly stated.
“That the amount and situation of said real estate and the number and parties interested therein are such that division thereof in kind cannot be made without great injury to the interests of the owners thereof.
“Plaintiff asks that partition and division of said remainder of said lands be made among the parties thereto entitled. That the interests of the parties be decreed as herein set forth and that the land be sold for the purpose of partition and division as aforesaid and for such other and further relief as may seem just. ’ ’

The petition was signed by the attorneys, verified by the affidavit of one- of them, in which it was alleged that all of the defendants were non-residents of the State of Missouri. (At that time the "said Tabor was the owner of the life estate of the said Cynthia Clark. The said John Gr., William A., Nicholas S., Mildred J. and Overly S. were all non-residents of the State of Missouri. The said Mildred J. was the wife of A. A. Lieuallen, and the said William A., Mildred J. and Julia were minors.)

On the same day an order of publication in the usual form, entitled as in the petition, was made and issued by the clerk of said court against the defendants named in the caption thereof, notifying them that said plaintiff had commenced suit against them and “that the object and general nature of his petition is to obtain partition and division among the parties to said suit of ■the remainder after the expiration of the estate during the natural life of Cynthia C. Clark of the following lands in said county” (describing the same as in the petition), and requiring them to appear and answer the same at the September term, 1869, of said court, etc., at which term proof of publication of said notice was duly made, a guardian ad litem for the infant defendants (without naming them) was appointed, and judgment by. default against the adult defendants (without naming them), was entered, and the cause continued. At the next ensuing March term of said court and on the 9th of March, 1870, the order of sale recited in the sheriff’s deed was made without any appearance of or answer by tbe guardian ad litem so far as the record shows. The order as entered of record of that date, in ink, in the hand writing of the clerk with certain lead pencil inteiiineations therein which it was admitted on the trial were in the hand writing of one of the plaintiff’s attorneys in said proceedings, is as follows; the interlineations being in parenthesis:

“Now at this day comes up to be heard and determined the above-entitled cause by the court here and appears the plaintiff by his attorney, but all of said defendants being solemnly called comes not but further makes default, whereupon the court here having heard the proof adduced on the part of the plaintiff and being well advised as to the law and facts of the case, doth find that the'lands described in plaintiff’s petition are not susceptible of partition and division in kind without great prejudice to the owners thereof, and the court do.th further find that plaintiff William B. Tabor is entitled to four-tenths of said real estate and that defendants, John Clark, Nicholas Clark, Mildred Allen, Julia A. Clark, Orville S. Clark and William Clark are each entitled to one-tenth of (the remainder of) said real estate all (of said real estate being) subject to the life interest of Cynthia O. Clark as stated iu plaintiff’s petition. It is therefore, ordered, adjudged and decreed by the court here that the sheriff of Grundy county in the State of Missouri, sell the (said remainder of the) lands described in the petition of the plaintiff herein (after the expiration of said life estate of said Cynthia C. Clark) viz.: The west half of the southwest quarter of section number thirteen, the east half of the southeast quarter of section number fourteen, in township number sixty-two, of range twenty-five, at public auction to the highest and best bidder at the court house door in the towm of Trenton, in the county and State aforesaid, for cash in hand, and that the said sheriff report his proceedings to the court herein as the law directs. And it is further ordered that Peery and Burkeholder be allowed the sum of fifty dollars as attorney fee in this cause and the cause continued. ’ ’

At the next ensuing September term of said court and on the 5th of September, 1870, the sale was made and on the 7th day of September, 1870, by an entry of record of that date, the cause was “continued to await sheriff’s report,” and on the next day (the 8th of September, 1870), the sheriff’s deed was executed.

At the next ensuing March term of said court, and on the 11th day of March, 1871, by an entry of record of that date, the cause was “continued to await sheriff’s report, ’ ’ and at the next September term of said court, and on the 9th of September, 1871, the following entry of that date appears: “Now at this day comes Nathan A. Winters, sheriff, and files his final report in this cause, and this case being settled, it is ordered by the court that the parties hereto go hence without day.” And this was the last entry of record in the case, and the only one at that term except a memorandum on the judge’s docket consisting of the single word, “Settled.” And with these entries the case disappeared from the records of the court.

It thus appeared on the face of the record that the sale was not made in pursuance of the order of the court as entered by the clerk on the record of the court, but in pursuance of the order as altered by the plaintiff’s attorney; that the deed was executed before the sale was reported to the court; it does not appear that the sheriff’s report was ever approved or the sale confirmed by the court. The law in force at the time these proceedings were had was chapter 152, General Statutes 1865, under which in Burden v. Taylor, 124 Mo. 12, we held that under that statute “a sheriff’s deed in partition made before approval of the sale by the court confers no title, ’ ’ and in regard to such proceedings, said:

“Under the statute, as it read in the revision prior to that of 1865, it was held that where the judgment of the court is for a partition of the property and directs the land to be sold by the sheriff, the judgment is final, and an appeal therefrom must be taken at the same term at which the judgment is entered. [Durham v. Darby, 34 Mo. 447; Hinds v. Stevens, 45 Mo. 209.] In the latter case a change in the law is noticed which was carried into the revision of 1865, and since then it has been uniformly held that a report by the sheriff of his proceedings under the order of sale and the approval by the court of that report is required, and that, until such approval, the case is still pending. [Pomeroy v. Allen, 60 Mo. 530; Parkinson v. Caplinger, 65 Mo. 290 ; Murray v. Yates, 73 Mo. 13; Turpin v. Turpin, 88 Mo. 337; Harbison v. Sanford, 90 Mo. 477; Holloway v. Holloway, 97 Mo. 628; Buller v. Linzee, 100 Mo. 95.]
“It was accordingly held in Pomeroy v. Allen, supra, that ‘in partition sales the sheriff must report his proceeding to the court, and until there is an approval or confirmation of the same, no deed can be executed. ’ Although under the statute of 1855 it was held that an appeal would lie from an order of sale in partition, it was also held under that law, that the court retained control of the sale and of the execution of the deed in pursuance thereof (Neiman v. Early, 28 Mo. 475; Fortune v. Fife, 105 Mo. 433); and that the court, having control over the execution of its own process, could, at the term to which the report of the sale was made, set the same aside without notice to the purchaser. [Neiman v. Early, supra.]
“We are cited to a number of cases in which it is held that sales under execution cannot be set aside without notice to the purchaser, but these cases are not in point. [Patton v. Hanna, 46 Mo. 314.] A confirmation of the sale in such cases is not necessary, but sales made under order of court in partition are made subject to the approval of the court. ‘Sales of land by order of the court in proceedings for partition are judicial sales. As such they must be reported to the court for confirmation, and until confirmed they are of no effect.’ [Rorer on Judicial Sales (2 Ed.), sec. 399.] ‘Such approval is essential to the consummation of the sale. "Without it there is no authority for making any conveyance to the purchaser, and a conveyance without authority is obviously void.’ [Freeman on Void Judical Sales, see. 43; Freeman on Co-tenancy and Partition (2 Ed.), secs. 544 545; 2 Freeman on Executions (3 Ed.), sec. 311.]”

Applying these principles to the case in hand, the deed in question having been made before the sale was reported, and the report thereof afterwards made, having never been approved or the sale confirmed by the court so far as the record shows, no title to the premises passed thereby to the said Tabor.

It is contended, however, that it is not necessary that approval of the sheriff’s report and confirmation of the sale should appear by a formal entry but it is sufficient if such approval and confirmation can be gathered from the whole record. The confirmation of the sale was the consummation of, and the most important step in, the whole proceeding. It was the final judgment of the court from which alone an appeal could be taken, and when once rendered, imported absolute verity and was beyond impeachment except forfraud or want of jurisdiction. An act of such importance, and productive of such grave consequences, should undoubtedly appear upon the record in no equivocal terms. The whole of the record was given in evidence, and has been substantially set out herein, and nothing therein contained can be found indicating that the sale was confirmed. The only entries that could have had any bearing thereon were the last ones made in the case, and there is nothing therein contained showing or tending to show that the sheriff’s report was considered or approved, or. that his sale was confirmed. On the contrary, the terms thereof tend rather to show that the report of the sheriff was not considered or approved and the sale was not confirmed, because the case was ‘ ‘ settled,” when, where, by whom, or by what does not appear. The court may have thought that the mere filing of the report settled the case, and this seems the most reasonable inference to be drawn from these record entries, but, of course, that was a mistake. Apart from the fact that the property was sold for only about enough to pay attorney’s fees and costs; that the plaintiff was the purchaser, and through the whole proceeding he had concealed the fact that he was the owner of the life estate and three-fifths of the defendants were infants, the record abounded in errors, omissions, misnomers and other irregularities, for which confirmation of the sale ought to have been withheld, some of which go only to some of the plaintiffs herein, and others to all of them. But, as upon the face of the record, it appeared that ihe sale was not made in accordance with the terms of the order of the court and was not thereafter confirmed by the court, no 'title passed by the sheriff’s deed as against any of the plaintiffs herein. It is not necessary, therefore, to point out or comment on those defects.

The trial court correctly determined the effect of this deed, and the rights of the parties herein to the real estate in question, and its judgment is affirmed.

All concur.


source: Caselaw Access Project

author: MARSHALL, J.

license: Public Domain

text:
    ST. LOUIS BELT AND TERMINAL RAILWAY COMPANY, Appellant, v. MENDONSA et al.
    Division One,
    February 22, 1906.
    1. CONDEMNATION: Damage By F.ire: Risk and Loss: Instruction. In estimating the damage to a land-owner in a condemnation proceeding brought by a railroad, the jury may take into consideration the diminution in the value of the land not taken caused by the risk of fire from passing locomotives, but cannot take into consideration any loss of or damage to the land not taken that may thereafter be done by an actual fire which destroys or injures the property, but which may never occur. And instructions in the condemnation case should differentiate between the risk of fire, and actual loss after the fire has occurred. Depreciation in the value of property caused by the risk of fire, is a proper element of damage in the condemnation case; loss or destruction by actual fire can be compensated for by a separate action after the fire has occurred. [Following Railroad v. McG-rew, 104 Mo. 282; Mathews v. Railroad, 121 Mo. 298; Railroad v. Donovan, 149 Mo. 93; Railroad v. Shoemaker, 160 Mo. 425; and holding that these cases are all in harmony.]
    2. -: -: Residence District. Depreciation in the value of land platted for and especially adapted to residence purposes, caused by the risk of fire from passing locomotives, is a legitimate element of damages to be taken into consideration in a condemnation proceeding; and though the amount of the depreciation is not susceptible of accurate mathematical calcu- ' lation, it is not a mere speculative damage, but may be left to the common sense and judgment of the jury for determination.
    Appeal from St. Louis County Circuit Court. — Ho». Jno. W. McElhinney, Judge.
    Affirmed.

      J. E. McKeighcm for appellant.
    (1) In tlie instruction given by tlie trial court tbe jury were told that tbey might not consider damage by fire as an element tending to depreciate tbe value of tbe property about to be taken. The jury were told, however, as the Supreme Court said in the McGrew case and in the Mathews case they should be told, that in estimating damages this element should not be taken into consideration. In the case at bar none of the peculiar facts existed which the court found to exist, and which, it held, made a departure from the general rule excluding consideration of damage from fire necessary. In the case now before the court the railway company sought to condemn a right of way through a tract of land owned by respondents in the county of St. Louis. So far as the evidence discloses, this tract differs in no respect from adjoining property, so far as the uses to which it may be put were concerned. It was covered with forest trees, and was suitable for sub-division or residence purposes, as all land in the State of Missouri is. There were no buildings or improvements or any character upon it, hence there was no occasion to tell the jury that they might consider danger from fire as an element tending to depreciate the value of the property of respondents which was not taken. But, as just stated, the instruction given at the instance of appellant did not take from the jury the right to consider danger from fire as affecting the value of the property not taken; it simply told the jury that it should not, in estimating the damages, take this element into1 consideration. Railroad v. Donovan, 149 Mo. 93; Railroad v. Shoemaker, 160 Mo. 425; Railroad v. Boyle, 50 Mo. App. 480; Railroad v. Waldo, 70 Mo. 629. (2) The difference between taking into the estimate of damages the danger of fire, and considering this danger as affecting the value of the entire tract, is recognized by many authorities and text-writers. 2 Lewis on Em. Dom., sec. 497. The trial court did not, in its instruction, withdraw from the jury consideration or damages by fire, so far as it affected the value of the remainder of defendants’ tract of land. It simply said to the jury, as the unbroken line of authorities in this State hold that it should have done, that in estimating defendants’ damages the jury should not take into consideration loss or danger from fire. All of the authorities, so' far as we have been able to discover, hold that, for the purpose of estimating the defendants’ .damages, any loss from fire is too speculative and remote to be considered. Railroad v. Abell, 18 Mo. App-. 632; Mills on Em. Dom., sec. 163.

      Bobt. L. Shackelford for respondents.
    (1) In giving instruction 2 for plaintiff, the court was in error, for the reason that the latter part of the instruction informs the jury that they must deduct all benefits, if any, peculiar to defendants’ strip of land, arising from the construction of said railroad over said land, and there was no testimony in the case as to any such benefits, and the instruction is therefore without evidence upon which to base it. Railroad v. McG-rew, 104 Mo-. 294; Mathews v. Railroad, 121 Mo. 298; Lewis on Eminent Domain, sec. 497; Mills on Eminent Domain, secs. 163, 166; Railroad v. McComb, 60 Me. 290 ; Pierce v. Railroad, 105 Mass. 199; Railroad v. Mc-Klosky, 110 Pa. St. 436. The Donovan case and the Shoemaker case do not overrule the McGrew case or the Mathews case, wherein the question at issue was directly passed upon and decided in accordance with the accepted doctrine and principles of law announced in like cases throughout the country. (2) The claim is also made that the statute making railroad companies liable for damages by reason of fire from the engines in use upon the railroad, gives the parties a complete remedy. In reply to this proposition we say, suppose such statute is in force, it does not and cannot reach the damages caused by the depreciation in value of defendants ’ land, caused by risk of damage by fire which springs into existence and surrounds the property through which the railroad passes, the moment it becomes an established fact that the railroad will pass through such property, and especially so in' cases like the one under consideration, where the property is at the very edge of a large city, and so situated as to make it of great value for high-grade residences soon to cover the entire property in question. Lewis on Em. Dom., sec. 496. (3) Counsel for appellant says that the court did not in its. instructions withdraw from the jury the consideration of damages by fire. This position is untenable, as the question of fire or the risk of fire was absolutely withdrawn from the jury as an element to be considered by them in arriving at the amount of damages to the property, and the jury were given to understand by the instruction given for the plaintiff that the element of fire could not be considered at all by them. And by the careful reading of this instruction it will be seen that the only reasonable conclusion a jury could draw from the instruction is that they were not to consider the effect of fire or the risk of fire upon the property, either now or in the future. These and other similar inconveniences which tend to deteriorate the value of the farm and contribute to produce damage to the land not taken should be considered. Railroad v. McGrew, 104 Mo. 283; Railroad v. Baker, 102 Mo. 553; Railroad, v. "Waldo, 70 Mo. 629; Railroad v. Blume, 27 N. E. 601; Railroad v. G-ramey, 25 N. E. 728; Lewis on Eminent Domain, secs. 496-7; Mills on Eminent Domain, sec. 162.
   MARSHALL, J.

— This is a proceeding to condemn two and forty-three hundreths acres of the defendants’ land lying in St. Louis county and about a mile west of the city limits, and being a portion of a certain tract of eighteen acres owned by the defendants and heretofore laid out and platted for residence property and known as Maplewood Heights, for a right of way for the plaintiff railroad.

The commissioners allowed defendants $10,000 damages.

The court sustained exceptions to the report of the commissioners and awarded a trial by jury.

The jury assessed the defendants’ damages at the sum of $5,600.

The defendants filed a motion for a new trial, alleging, among other grounds, that the court gave improper and illegal instructions at the request of the plaintiff and of its own motion. The trial court sustained the motion for a new trial on the ground that it had erred in giving the third instruction asked by the plaintiff, which was as follows: “The court instructs the jury that in estimating defendants’ damages it should not take into consideration any supposed inconveniences arising from the blowing of whistles, or the noise and smoke of trains, nor the liability of danger or injury to defendants’ property by fire set out by passing trains; nor the possibility of animals on defendants ’ land becoming frightened by passing trains.” Thereupon, the plaintiff appealed to this court from the order granting a new trial.

I.

The only error assigned by appellant is the action of the trial court in granting a new trial for the reason that it held that the third instruction given by the court at the plaintiff’s request was erroneous. •

This was the only instruction given in the case which in any manner referred to the liability of danger or injury to defendants’ property by fire set out by passing trains.

The defendants claim that the instruction was erroneous under the rules laid down by this court in Railroad v. McGrew, 104 Mo. 282, and Mathews v. Railroad, 121 Mo. 298. On the other hand, plaintiff contends that the instruction was proper under the ruling of this court in Railroad v. Donovan, 149 Mo. 93, and Railroad v. Shoemaker, 160 Mo. 425.

In Railroad v. McGrew, supra, the trial court instructed the jury, among other things, that in estimating the damage to the defendant, the jury should not take into consideration “the risks of damage by fires from passing locomotives,” and this was assigned as error. This court, speaking through Maceaklane, J., said: “It is true, as a general proposition, damages should be assessed on the assumption that the road will be properly contructed and operated, and that it will comply with all the laws of the State regulating its construction, management and operation. For failure of duty in these respects it will be liable to an action at common law, or the land-owner will have such remedy as may be provided by statute. [Citing cases.] Notwithstanding these settled principles, which apply generally, we are of the opinion that the facts in this ease are exceptional, and that the instructions as limited by the court were proper. ’ ’ The court then discussed the situation of the remaining portion of the land, the risks that would be incurred in the operation of the defendant’s mining plant, and then said: “So it will be seen that the general rule cannot, in justice, be applied to its full extent, under the facts in this case. It would not be proper to estimate the possible damage from fires or injuries to persons. Neither may ever occur, and to take them into the estimate would be mere speculation. We think they may be properly considered, however, in so far as they tend to depreciate the value of the whole property, and to affect the proposed changes, but no further.” [Citing cases.]

Mathews v. Railroad, 121 Mo. 298, was an action for damages caused to the improvements on the plaintiff’s property by fire escaping from passing trains. The petition was in two counts; the first a count at common law, and the second a count based upon a statute, now section 1111, Revised Statutes 1899, making railroad companies responsible for all damages caused by fire communicated from locomotive engines. Tbe defendant pleaded tbe unconstitutionality of tbe statute. Upon tbe trial tbe defendant offered to prove that when tbe right of way was acquired by condemnation, tbe damages that might be caused by fire from locomotive engines were -included in tbe compensation allowed plantiff, and asked tbe court to instruct the jury that if tbe commissioners in tbe condemnation proceeding took into consideration tbe danger to plaintiff’s property by accidental fire, tbe plaintiff could not recover. Speaking to that question tbis court, per Gantt, J., said: ‘ ‘ "When a part of a tract of land is taken for railroad' purposes under condemnation proceedings, tbe jury or commissioners may properly take into consideration tbe risk from fire to the buildings, fences, timber or crops upon the remainder, in so far and to tbe extent only that it depreciates the value of tbe property, but compensation for a probable or future loss by fire is entirely too speculative and remote to- be made tbe basis of damages.” Tbe court then cited and quoted from Railroad v. McGrew, supra, and then added: “Tbe plaintiff’s claim before tbe commissioners was damage from tbe risk of fire. In so far as that risk affected tbe value of bis property not taken by depreciating it, it was a proper claim. There was nothing to show that it was unjustly extended to an estimate of damages that might accrue at some future time, or might never occur. Tbe damages were assessed at $3,000, and paid. After tbe assessment, tbe plaintiff held bis property in its depreciated condition. How defendant can arrive at tbe conclusion that if tbis property in its depreciated condition is subsequently destroyed, plaintiff is not entitled to recover whatever damages shall accrue from such subsequent destruction, we cannot understand. Tbe prior condemnation assessment has been made and settled. After that, plaintiff owns what is left absolutely, as be owned tbe whole before a portion was appropriated by tbe road. Tbe subsequent damages constitute no part of tbe first.”

Tbe rule thus announced may be briefly stated to be this: that in tbe condemnation proceedings tbe risk or fire from passing locomotive engines may be considered by tbe commissioners in determining tbe damage to tbe remaining portion of tbe property not taken, and compensation may be allowed tbe defendant for tbe depreciation in value of bis land by reason of sucb risk. That is, may take into account tbe difference in the value of tbe remaining part of tbe land caused by tbe risk aforesaid, and that difference would consist of tbe •depreciation in value of tbe land from sucb cause.

But tbe commissioners in condemnation cannot take into consideration tbe possibility of tbe destruction of buildings that may be on tbe land at the time of tbe condemnation proceeding or that may be subsequently erected thereon, and speculate as to the damage that may be done to tbe owner by tbe destruction thereof, for tbe buildings may never be destroyed, and, therefore, that element of damage being purely speculative, tbe owner is afforded ample remedy under tbe statute to recover from tbe railroad any actual damage be may afterwards suffer by reason of tbe buildings on tbe land being afterwards destroyed, whenever sucb a loss occurs. Or, stated otherwise, tbe commissioners are authorized to take into account tbe depreciated value or salable value of tbe land caused by tbe risk to be apprehended from fires that may never occur. But for actual loss from the actual destruction of buildings or improvements on tbe land arising from fires communicated by locomotive engines, tbe owner is not entitled to recover against tbe railroad until and unless sucb loss actually occurs. And after loss tbe owner’s remedy is under tbe statute or at tbe common law for tbe damage and loss which be will then have actually sustained.

The rule so announced in the cases cited is the general rule of law. [2 Lewis on Em. Dorn., secs. 496 and 497.]

The plaintiff contends that the subsequent cases of Railroad v. Donovan and Railroad v. Shoemaker, supra, announce a different rule. In Railroad v. Donovan, supra, the plaintiff contended that the court below had permitted defendant’s expert to testify as to damages en gross, without specifying the elements that went to make up the whole, and that thereby witnesses included in their estimates 'improper elements of damages, such as dangers from fires caused by locomotive engines, etc., but this court, speaking through Brace, J., pointed out that the trial court “at the instance of the plaintiff excluded from the jury by clear and pointed instruction” all such objectionable elements of damage, and instructed the jury as to the true measure of damages in plain and unmistakable terms. There is nothing in the decision in that case which in any manner militates against or modifies the rule laid down in Railroad v. McGrew and Mathews v. Railroad, supra. On the contrary what is there said harmonizes with what was said in the cases cited, and the court in that case properly excluded from the consideration of the jury, at the instance of the plaintiff, all consideration of possible future damage to the improvements on the land arising from fire communicated by locomotive engines. The question of whether or not the risk of fire from such cases would cause a depreciation in the value of the remaining land was not considered, discussed or decided in that case.

In Railroad v. Shoemaker, supra, the trial court at the instance of the plaintiff instructed the jury that they could not take into consideration any damages the defendant might sustain “by reason of destruction of property by fire which may be set or caused by the trains of the railroad company in operating its line, and any such damages, if any he ever sustained, will be the proper subject-matter of future actions, but in determining the amount of compensation which you will allow the defendant in this action, you can not take into consideration nor allow any sum or amount whatever on account of exposure or liability of property to damage or destruction by fire caused or set by the trains in the operation of the road.” As this instruction was given at the instance of the plaintiff, the condemning party, and as the plaintiff was the appellant in that case, the correctness of that instruction was not called in question, discussed or decided by this court, but the whole decision in that case was as to the correctness of other instructions given by the court at the request of the defendants, and as to which plaintiff assigned error. The court said: “Thus, in reaching their conclusion as to the market value of the .portion of defendant’s farm which was not appropriated, they may, in estimating the diminution in value of the part left, take into consideration the amount and value of the land taken for the right of way; the size and shape of the two tracks into which the farm is divided by the location of the road through it, the cuts and fills, the inconvenience in getting from one part of the farm to the other, any inconvenience in getting to water; and on the other hand, they were instructed on the part of the plaintiff that in reaching the amount of the damages they would not consider any damage that might result from fires in the future, as such would be the subject-matter of future actions; nor should they consider the danger to life or limb from trains passing over the road; nor any damage from smoke or noise from passing trains over the road or from ringing of bells or sounding of whistles, and the court expressly advised then what was meant by market value. In a word, by a process of exclusion and inclusion the jury were advised how to reach the amount of damages defendant had suffered by the appropriation of his land, both as to the part taken for right of way and the depredation in the market value of the portion not taken.”

No one can fairly contend that what was said there states anything in conflict with the rules laid down in Railroad v. McGrew or Mathews v. Railroad, supra. The essence of what was said in the Shoemaker case was, that, in estimating the damages in the condemnation proceeding, the jury might take into consideration the diminution in the value of the land not taken caused by the risk of fire, but could not take into consideration any damage to or destruction of property that might thereafter be actually done to the same but which might "never occur, as the latter would be properly the subject of future actions.

Instruction numbered 3, given at the instance of the plaintiff, only partially stated the rule of law, and in the form given was calculated to mislead the jury to the injury of the defendants. As drawn the instruction complained of, and for the giving of which the new trial was granted, not only directed the jury to exclude from consideration any damage that might in the future accrue to the defendants from fires being communicated to buildings or improvements on the land by passing locomotive engines, but likewise forbade the jury to take into account the risk of such fires and the effect of such risk upon the remaining land and the depreciation thereof in consequence of such risk.

. It is true that ordinarily mere non-direction in a civil case does not constitute error. But the instruction under discussion amounts to more than mere non-direction. It directs the jury not to take into consideration the liability of danger or injury to defendants’ property by fire set out by passing trains. The liability is the risk of fire, which, under the rules stated in the cases cited, constitutes a legitimate element of damage in a condemnation case, for that risk may depreciate the value of the property. The instruction as drawn does not differentiate between the risk of fire and the actual loss after the fire has occurred. The former can only be taken into account in condemnation cases. The latter can only be compensated for in an action after the loss occurs.

The tract of land owned by the defendant in this case had been platted for residence purposes and was especially adapted to such purposes. The taking of a portion thereof for a railroad-right of way by the plaintiff and the constant passing of trains by day and by night for the purposes contemplated by the plaintiff company might, to say the least of it, affect the value o-f the remaining land for residence purposes. On the other hand, the establishment and maintenance of a railroad through the land might make the land valuable for warehouse purposes, but would not make this land any more valuable for such purposes than it would any other land abutting the railroad. The benefit, therefore, was such a benefit as was common to all the owners of land abutting the road and was not a special benefit to the defendants’ land, and, therefore, could not properly be taken into account in determining the amount of the defendants’ damage. .

On the other hand, the presence of the railroad in such close proximity to- residences that might be built on the remaining land, and for which the land was intended, might depreciate the value of the land for such purposes, and such depreciation was a legitimate element of damage to be taken into account in the condemnation proceeding. True, the amount of depreciation would depend upon the opinion of experts and upon the common sense and judgment of the jurors, and was not susceptible of accurate mathematical calculation, but it was, nevertheless, a proper element of the defendants’ damage, and, though not possible of exact mathematical computation, it was not a mere speculative damage, such as the cases cited speak of in reference to the possible destruction of improvements on the land that may or may not ever occur at some future time.

For the foregoing reasons the circuit court committed no error in granting a new trial in this case, and' its judgment is therefore affirmed.


author: VALLIANT, J.

text:
    LIPSCOMB et al. v. ADAMS, Appellant.
    Division One,
    February 22, 1906.
    1. CONTRACT TO RECOVER LAND: Unoccupied Portion: Covered by Agreement. Where the written recorded contract with attorneys, authorizing them by suit to recover 133 acres of land and giving to them for their services one-half of all the money or property received by suit or compromise, clearly by its terms embraces, as a part of the 133-acre tract, the thirteen acres which at the time was not occupied by any one but had been conveyed to an adverse claimant and by her conveyed to the non-resident defendant, defendant cannot, when sued for their interest in the 13 acres by the attorneys, after they had instituted a suit for the other 120 acres occupied by the adverse claimants, and after a compromise had been effected by their client as to all the lands in total disregard of the rights of the attorneys and without their consent, maintain the defense that said small tract was not “recovered” through any litigation by them.. The contract determined their right to one half of the small tract.
    2. ATTORNEYS: Contract of Employment: Unconscionable Contingent Fee. Where a contract employing attorneys to recover 133 acres of land occupied or claimed, under deeds by divers persons, stipulated that their fee should be one-half of all the land recovered, and that half at the time was worth $1,500 to $2,000, their client being without means and soon after they instituted suits she compromised them for such a sum as to indicate that her claim was doubtful or the land was of small value, a court of equity will not refuse to enforce the contract on the ground that the services actually rendered were unconscionably out of proportion to the compensation claimed.
    3. PUBLIC POLICY: Limitation. To limit the term “public policy” within the bounds of a fixed definition would be to render 'evasion of the law in that respect a matter of easy invention.

      4. ATTORNEYS: Contingent Fee. There is no longer any good reason for holding a contract employing attorneys upon a contingent fee, depending on the amount recovered by the litigation, to be unlawful and contrary to public policy.
    5. -: -: Contract Not to Compromise. A contract by which attorneys are employed to recover land by suit, and stipulating that they are to have one-half of the land recovered, and in which the client agrees not to compromise the suit or claim without their consent and approval, may or may not be unlawful, according to the circumstances of the case. And in this case where the client compromised with her adversaries after suit was brought, and in which, as a result of that compromise, defendant is withholding from plaintiffs under a deed from their client the one-half of the land to which they would have been entitled had not that compromise been made, it is held that the contract not to compromise without their approval was lawful. '
    6. -: -: -: Protection to Client. A contract re- . stricting the client’s right to compromise is often a protection of a client who, ignorant and in needy circumstances, is liable to be imposed upon by a crafty adversary.
    7. -: -: -: Conduct of Opposite Party. It does not lie in the mouth of a party, who by compromising with the client has greatly overreached her, to urge that her contract with her attorneys, by which she was prohibited from compromising the litigation without their approval, was, because it contained such a clause, in contravention of good morals and violative of public policy.
    8. -: Specific Performance: Client’s Contract to Sell: Mutuality and Consideration. An additional agreement by the client to sell to her attorneys her interest in the land recovered at suit at a specified price, entered into after the contract of employment had been made, if lacking in consideration and mutuality, will not be specifically enforced; and if there is a reasonable doubt about the existence of mutuality of obligation in the additional contract, it will be construed most favorably to th® client or her privies.
    9. LACHES: Stale Cause. Where the defendant has not suffered because of plaintiff’s delay in bringing the suit, and the improvements upon the land are of a trifling character, and defendant has received as much- income from the land as he paid out in taxes, the action is not stale.
    Appeal from Jackson Circuit Court. — Him. J. II. Slover, Judge.
    Reversed and remanded {with directions).

      C. O. Tichenor for appellant.
    (1) The validity of contingent fees has for a long time been recognized by this court, but with limitations. Duke v. Harper, 66 Mo. 57. Such contracts, if upheld, must be clearly stated; must be fair in every respect, and must be sustained by considerations not nominal. Dorr v. Camden (W. Va.), 65 L. R. A. 351. (2) If equity enforces such contracts as those in controversy it must be perfectly clear that the meaning the plaintiffs claim for them is the only meaning which can be given them — there must be no doubt about it; they must not be “vague and uncertain.77 Wendover v. Baker, 121 Mo. 294. Equity will not specifically enforce a contract unless it be “certain, fair and just in all its parts;77 it must be “clear and satisfactory77 as to its terms. Dalzell v. Dueber Mfg. Co., 149’ U. S. 325. The word “recover77 as applied to lands has been and is well known in law. In these two short agreements it is used six times in the first and twice in the last one. “The word recovery should have its ordinary significance, and in that sense the plaintiff cannot be said to recover more than he obtains by his suit.77 Meyer v. Arnold, 43 N. J. L. 145.. “Now what does an action for the recovery of land mean? It means the recovery of possession, and you combine with a claim for that, a claim for the rent.77 Grledhill v. Hunter, L. R. 14 Ch. D. 500. “To recover in legal proceedings is to be successful in a suit. It is to obtain a favorable judgment.77 Oxford v. Paris, 33 Me. 181. “Recovery is a word well understood, and when applied to debts, or demands, means recovery by process and course of law.77 Jones v. Walker, 2 Paine 719. (3) The agreement by a client with his attorney not to settle, does not affect his right to settle for two reasons: (a) because public policy demands an end to litigation and encourages settlements; (b) the other party to the controversy — to the settlement— is not bound by the agreement between tbe party and his attorney. Tbis is well expressed in Railroad v. Ackley, 171 111. 113. Tbe late statute giving a lawyer a lien for bis fees expressly recognizes tbis right in tbe client. “Tbe client is still competent to decide whether be will continue tbe litigation or agree with bis adversary.” Perie v. Railroad, 152 N. Y. 527. (4) Tbe agreement to sell tbis tract of land is an entirety; one undivided interest in one tract; one price; one time in wbicb to buy and one person from whom to buy. Hill v. Rich Hill Ooal Min. Co., 119 Mo. 9. (5) When plaintiffs made tbeir first contract tbe relation of attorney and client did not exist; not so when they procured tbe option to purchase from tbeir client. Before they can enforce such an agreement, tbe burden rests upon them to show matters wbicb they did not show. Darlington’s Estate, 147 Past. 632; Thomas v. Turner, 87 Va. 1. (6) In so far as tbe right to purchase an undivided one-half interest is concerned, the plaintiffs were barred long before they, brought tbis suit. In tbe first place, tbe right to purchase was a mere option, wholly without consideration; it did not bind them to buy, and they paid nothing for it. “An option was simply given them to purchase the property, or an interest therein, at a stipulated price. What was tbe consideration for tbis privilege? No money was paid for it.” Davis v. Petty, 147 Mo. 382. Is tbe fact that they waited over eleven years, manifesting no intention by word or act that they would exercise tbeir option, paying not a cent of purchase money or taxes, evidence that they have “shown themselves ready, and desirous, prompt and eager” to carry out tbeir agreement to purchase? During tbis long period of time, if plaintiffs are correct in tbeir position, defendant was prevented from selling, mortgaging, leaving or improving the property, while be was compelled, in order to protect it, to pay tbe taxes. Tbis was not only detrimental to tbe vendor’s interest, but contrary to public policy. They even go farther and say that equity allowed them quietly to look on and see the land increase in value — at least doubling in value during the eleven years — without a cent invested either in purchase money or taxes, fifty per cent increase enuring to their benefit. Davis v. Petty, 147 Mo. 386; Wendover v. Baker, 121 Mo. 273; Hollman v. Oonlon, 143 Mo. 369; S. S. Co. v. Mfg. Co., 125 Mo. 156; Brown v. Massey, 138 Mo. 520 ; Pomeroy v. Fullerton, 131 Mo. 582; Kroenung v. Goehri, 112 Mo. 648.

      Frank F. Brumback also for appellant.
    (1) The contracts under which respondents claim do not cover or apply to the thirteen acres in controversy. By their terms they only apply to those parts of the specifically described lands that were at the dates of the contracts in the possession of other parties and held adversely to Virginia K. Wachsman. As the thirteen acres were then vacant and not held adversely to Wachsman, the contracts do not give respondents any rights in the thirteen acres. De Graffenried v. Bail-road (Ark.), 50 S. W. 272. (2) Virginia Wachsman had the right to compromise the suits in ejectment brought in her name, and convey the land to the adverse claimants. The provision in the contracts that she should not compromise without the consent of respondents made the contracts and the whole thereof absolutely void as against public policy. Bailroad v. Ackley, 171 111. 100; Davis v. Webber, 66 Ark. 190; Lewis v. Lewis, 15 Ohio 715; Ellwood v. Wilson, 21 la. 523; Foster v. Jack, 4 Watts 334; Boardman v. Thompson, 25 la. 487; Ford v. Gregson, 7 Mont. 89; Green-hood on Public Policy, sec. 474; Davis v. Chase, 64 N. E. 853. (3) Bespondents’ alleged right to have their contracts specifically enforced, being an equitable right, is barred by their laches, they having waited over eleven years before taking any action and rights of other persons having intervened and land having greatly increased in value. Respondents cannot lie by and speculate on their rights, waiting many years, and then take the land if it prove of advantage to them. Burgess v. St. Louis Co., 99 Mo. 496; Bliss v. Prichard, 67 Mo. 186; Goodson v. Goodson, 140 Mo. 206; Davis v. Petty, 147 Mo. 374. (4) Respondents cannot recover because there is no evidence that before bringing this suit they ever offered to perform their part of the contracts or tendered to appellant the sum of money which under the contracts they were bound to pay.

      Joseph 8. Rust for respondents.
    (1) The contracts were fair and reasonable. (2) By the contract's Mrs. Wachsman secured the services of Lipscomb and Rust to adjust the adverse claims, and secured them on what was then her land, as she had a right to do. (3) Having created a lien on what was hers to secure the legal services, everything about not to settle was merely in effect calling her attention to the existence of the liens of the contracts. Those not to settle clauses were surplusage. It were as if the fdes had been secured on the land by a mortgage and the contract has said she should not settle in violation of the mortgage. (4) There was no splitting of causes of action, as all other suits had been dismissed when this was brought, and this was the only controversy then in existence. It-is now too late to raise that question. (5) Plaintiffs were guilty of no laches. They sued at once when there was some one to sue within the jurisdiction of the court. (6) Mrs. Wachsman was insolvent and plaintiffs had no remedy at law. (7) Until Adams gave notice that he disputed Lipscomb and Rust’s rights, no assertions of rights by him were presumed to be antagonistic to the rights of Lipscomb and Rust, and he gave no such notice until 1897, immediately before this suit was filed. Herbst v. Merrifield, 133 Mo. 267.
   VALLIANT, J.

— In the first count in the petition plaintiffs seek to have their equitable title to thirteen acres of land in Jackson county adjudged and decreed to them, and in the second count they seek to recover possession of the same, the first count being a suit in equity, the second an action at law.

The main facts in the case are undisputed. In 1872 James Bridger, who was the owner of 287 acres of land in Jackson county, executed a deed of general warranty conveying the land to his daughter Virginia K. "Wachsman, for the consideration of love and affection. The 13 acres in suit were a part of those 287 acres. Seven years afterwards, in 1879, Bridger executed two other deeds, by one of which he conveyed (or essayed to convey) 66 acres of the same 287 acres to his son William, and by the other 66 other acres of the same to his other daughter Mary E. Carroll. The 66 acres covered by the deed to Mrs. Carroll, included the 13 acres, the subject of this suit. Those deeds were all duly recorded.

February 23, 1886, Mrs. Carroll and her husband executed a warranty deed conveying the 13 acres in question to Ruben Smith for $350.

June 1st, 1886, Mrs. Waschman, then a widow, without other means than this land, came to the plaintiffs, who were attorneys at law practicing in Kansas City, and proposed to employ them to recover for her the 133 acres of land covered by the two deeds last above mentioned executed by her father in 1879. Thereupon a contract in writing was made in which, after reciting that Mrs. Wachsman was the owner of the 133 acres above mentioned and therein particularly described, that some or all of the land was in the possession of divers persons and that she was desirous of recovering it, it was agreed that the plaintiffs Lipscomb and Rust were to prosecute all necessary suits and render whatever other professional services were necessary to recover the land and for their compensation they were to have one-half of the land recovered, for which she was to make them a deed, and if a compromise was made they were to have one-half of whatever was received, whether money or property, and all contracts in regard to the litigation were to be approved by them. The contract was executed and acknowledged as required by law concerning contracts affecting the title to real estate and was duly recorded June 3d, 1886. Soon after the execution of this contract, to-wit, September 6th, 1886, the plaintiffs brought two suits, for their client Mrs. Wachsman, one against her brother William Bridger for the 66 acres of land claimed by him under the deed from his father, and the other against Mrs. Carroll and her husband for the land covered by the deed from her father to her, except the 13 acres in controversy in this suit. The reason the suit against Mrs. Carroll and her husband did not include these 13 acres was that they had previously, to-wit, February 23, 1886, conveyed the 13 acres by warranty deed to Ruben Smith.

On November 18th, 1886, plaintiffs entered into another contract in writing with Mrs. Wachsman whereby it was agreed that no compromise of the litigation was to be made except with the consent of Lipscomb and Rust, and that should it be agreed to buy from the antagonists their interest or claim in the lands Lipscomb and Rust before taking their half the land were to pay one-half the compromise price. “It is further agreed that if said Mrs. Wachsman shall recover said land, in as much as said Lipscomb and Rust will be entitled to one-half of the same under said contract of June 1st, 1886, and are desirous of owning the whole of said land, said Wachsman for and in consideration of twenty-five hundred dollars to be paid in cash will convey to said Lipscomb and Rust by good and sufficient deed said land free and clear of any incumbrance or claim of any and all persons whomsoever.” That instrument was also duly acknowledged and recorded November 18th, 1886.

After the execution of that document and while ■the two suits were pending Mrs. Wachsman compromised the matter and dismissed the suits without the knowledge or consent of Lipscomb and Rust; she executed to her brother and sister each a quit-claim deed for $600 for the land claimed by them respectively, including in the deed to Mrs. Carroll the 13 acres now in .controversy. Those quitclaim deeds were dated November 26th, 1886, and were duly recorded.

Plaintiffs then brought a suit in equity against William Bridger and Mrs. Carroll to recover the half of the land claimed by them under the contract of June 1st, 1886, which resulted in a compromise by which these plaintiffs paid William Bridger $1050', for a quitclaim to the land claimed by him, and gave Mrs. Carroll 20 acres of the land she claimed, she relinquishing to them the balance. The 13 acres now in- suit were not included in that compromise. Lipscomb testified that the reason the compromise did not include the-13 acres was that it was vacant and that Mrs. Carroll had already conveyed her title to Smith.

Defendant Adams claims title to the 13 acres under warranty deeds as follows: Mary Carroll and her husband to Ruben Smith, February 23d, 1886, consideration $350; Ruben Smith and wife to W. IT. Adams, June 1st, 1886, consideration $500; Adams and wife to Taylor S. Smith, March 4th, 1897, consideration $650; Taylor S. Smith and wife, quit-claim back to W. H. Adams, January 4th, 1898.

The original suit was against Taylor S. Smith, the quit-claim deed last mentioned was made by him to Adams after this suit was begun and Adams was substituted for Smith as defendant. Adams during all the time covered by this record except a short period was and is a resident of Kansas. Taylor S. Smith was and is a resident of Missouri.

Plaintiffs ’ testimony tended to show that the land in suit had never been enclosed except temporarily until Taylor S. Smith bought from Adams in 1897, when he enclosed it and thereupon plaintiffs brought this suit.

Defendant’s testimony tended to show that Adams had from time to time made use of the land during the ten years following his deed from Ruben Smith and that he had during all those years paid the taxes on it.

There was a good deal of testimony pro and con bearing on the question of adverse possession, but it was not sufficient to sustain the defendant’s plea of the Statute of Limitations.

There was a decree for the plaintiffs on the first count of the petition, giving them title to an undivided half of the land by virtue of their contract of June 1st, 1886, and giving them title also to the other undivided half on,payment by them to defendant, by a day named, of the sum of $250 estimated by the court as the proportion applicable to the 13 acres of the $2,500 they were to pay Mrs. Wachsman for her half of the whole 133 acres. And on the second count there was a judgment for possession, $30 damages and monthly rents ■ assessed at forty-two and one-half cents; execution, however, was stayed until the $250 should be paid. Prom that judgment defendant appeals.

I. Appellant presents the point that the plaintiffs acquired no interest in the 13-acre tract in suit for the reason that it was vacant on the date of their contract and was not “recovered” through any litigation conducted by them.

The evidence does show that these 13 acres were vacant at the date of the contract and it does not show that it was included in any suit in court. But the contract expressly describes the 133 acres covered by the two deeds of 18791, and in that description these 13 acres are included. It starts out with the recital that Mrs. Wachsman is the owner of the land and that “divers persons are in possession of some or all of said land and whereas it is the desire and intention of said Wachsman to recover the possession of said land,” etc. The contract is not by its express terms limited in its operation to only so much of the land as might, then be in the' actual, adverse possession of some one. Mrs. Wachsman is presumed to have known that the1 13 acres were then not in the actual possession of an adversary and, if she did not intend to engage the services, of the plaintiffs to do whatever was necessary to clear her title to the same, there was no necessity for her to have included it as she did in the description of the land in the contract. If there was any title acquired by Mrs. Carroll to any of the 66 acres covered by the deed from her father to her in 1879, it applied as well to these 13'. acres as to any of the rest. What defense William Bridger and Mrs. Carroll, or those claiming under either of them, could have made under the deeds of' 1879, we do not know; it is intimated in the briefs for appellant that there was a good defense, and that suggestion carries the idea that before Mrs. Wachsman. could get' rid of the effect of those two deeds she would have to go through a legal battle. Whatevér there was in the way of defense of those deeds of 1879 applied as well to the 13 acres as to any of the rest of the land. True Mrs. Wachsman might have gone on this 13-aere piece and built a fence around it, but that would only have changed her position from plaintiff to defendant, leaving her liable, for ten years at least, to be called into court to defend her title. Suppose she had taken that course and had been sued by this defendant for the possession, would she not, under this contract, have been entitled to the professional service of these plaintiffs?

Plaintiffs promptly brought suits in ejectment, against the only persons within reach of process; they did not include in either of those ejectment suits these 13 acres because there was no one in possession. They might have brought suit in equity to clear the title and have obtained service by publication on the defendant Adams who was a non-resident, but before a reasonable time had elapsed in which to enable them to determine what course to take Mrs. Waehsman prevented them taking any further action in her name by compromising with her brother and sister and conveying to the latter these 13 acres within a very short while after the two ejectment suits had been instituted. We hold that the contract covered these 13 acres as well as the rest of the 133 acres.

II. It is argued that the services actually rendered were so little in proportion to the compensation claimed that a court of equity should not enforce it. The contract was for one-half the land to be recovered. Taking the value of the land at that time as estimated by the witnesses, the fee of plaintiffs would have amounted in value to from $1,500 to $2,000, .for which the plaintiffs undertook to conduct this litigation, and if they were unsucessful they were to have nothing. What there was before them in the way of professional labor they could not know. Mrs. Waschman had no means to compensate them otherwise than as provided in the contract. The defendant in his answer in the case at bar says that he holds title through a regular conveyance through persons who owned the same adversely to Mrs. Waehsman. That averment indicates that at the time Mrs. Waehsman made this contract of June 1st, 1886, she had a contest before her. It is true, the work actually performed was not great, because soon after the suits were instituted Mrs. Waehsman compromised them, and the price she received shows either that she did not consider that she had a certain victory in sight, or else that the land was not then of such value as to render the contingent fee she had agreed to give unreasonable, or else it demonstrates the wisdom for her own protection of that clause in the contract which forbade her to compromise without the approval of her attorneys. There is nothing in the contract on this point that would cause a court of equity to refuse to enforce it on the ground that it was against conscience.

III. The point on which appellant most earnestly insists is that the clause in the contract of November 18th, Í886, by which Mrs. Wachsman agrees not to compromise without the consent of her attorneys is con- < trary to public policy and therefore void.

An agreement of this kind may or may not be condemned as against public policy, according to the circumstances of the case; each case must be judged in the light of its own facts. In 23 Am. and Eng. Ency. Law (2 Ed.), 456, it is said: “Public policy is in its nature so uncertain and fluctuating, varying with the habits and fashions of the day, with the growth of commerce, and the usuages of trade, that it is difficult to determine its limits with any degree of exactness.” In a note to the text is a reference to a California case quoting the definition of public policy from Story on Contracts, sec. 546: “It has never been defined by the courts, but has been left loose and free of definition, in the same manner as fraud. This rule may, however, be safely laid down, that whenever any contract conflicts with the morals of the time and contravenes any established interest of society, it is void as being against public policy.”

To limit the term “public policy” within the bormds of a fixed definition would be to render evasion of the law in that respect a matter of easy invention. The law on the subject of contracts for- attorneys fees has undergone changes in modern times. Once it was thought that to contract for a contingent fee was unlawful, but upon whatsoever theory that Idea existed in past ages, there is now no good reason for it and we have long since discarded it. Such contracts are as much for the benefit of the client as for the attorney, because if the client has a meritorious cause of action, but no means otherwise with which to pay for legal services, unless lie can, -with, the sanction of law, make a contract for a contingent fee to he paid out of the proceeds of the litigation, he cannot obtain the services of a law-abiding attorney, and if perchance he should find one who would secretly make with him a contract in violation of the law, he might put himself in unsafe ■ hands.

We do not lay it down as a general rule that a contract by which a client agrees not to compromise a suit without the consent of his attorney is not contrary to public policy, for circumstances may well be supposed in which such a contract would be held to be illegal for that reason, but what we now say on the subject of public policy affecting the validity of a contract is said with reference only to the contract now before us.

If the plaintiffs had a right to make this contract why did they not have the right to take security for its fulfillment? Does it conflict with the morals of the times or contravene any established interest of society, to insert into an otherwise lawful contract a clause designed to prevent the perpetration of the very fraud that was attempted to be perpetrated on these attorneys ? What more palpable fraud could have been perpetrated than this woman attempted to perpetrate on her attorneys, whose services had already brought her ■adversaries to terms? The defendant in this case thinks it is immoral and subversive of society to allow the plaintiffs the benefit of that clause in their contract, yet he sees nothing wrong in attempting to withhold from them their half of the land under a deed made by their client in fraud of their rights.

Besides, the agreement restricting the right to compromise is often a protection of a client who, like Mrs. Wachsman for example, in needy circumstances.- and ignorant, is liable to be imposed upon by a crafty adversary. By the compromise now in question, Mrs. Wachsman for a total consideration of $1,200 essayed to convey 133 acres of land to which, as it turned out, ,she had a perfect title, and which, taking the lowest figure given hy any witness, was worth at that time at least $3,000, and as counsel for appellant in their briefs insist was at that time worth a great deal more. Even if she had been under no agreement with her attorneys not to compromise without their knowledge, what can we say of the moral conduct of the party who would deal with this poor old ignorant woman in the absence of her attorneys of record and with what grace can a party who claims under such a transaction talk about contracts that contravene good morals and violate public policy? There is no more honorable class of men than attorneys at law, and as a rule they deal with their clients for their clients ’ best interest.

The case is discussed in the briefs as if it was the second contract only, to-wit, the one dated November 18th, 1886, that forbade the compromise without the consent of the plaintiffs, but a clause to that effect is also contained in the contract of June 1st.

In the last clause of the contract of June 1st, 1886, in which settlement and compromise are mentioned, the conclusion of the sentence is, “All contracts in regard to said litigation shall be approved by said Lipscomb .& Rust.”

We hold that this contract was not contrary to pub-, lie policy, and that under it the plaintiffs are entitled to an undivided one-half of the land in suit as compensation for their services rendered and agreed to be rendered.

IV. The plaintiffs’ claim to the other undivided half of the land rests on an entirely different basis; it rests on that part of the contract of November 18th, 1886, which provides that Lipscomb and Rust may become the purchasers of Mrs. Wachsman’s half on paying to her $2,500. So that as to that half they are seeking a specific performance of a contract to purchase.

The difficulty with that part of the plaintiffs’ case is that there is no consideration to support the promise of Mrs. Wachsman to sell her half. The contract is not mutual, Mrs. Wachsman agrees to sell, but Lipscomb & Rust do not obligate themselves to buy. The language is: “It is further agreed that if the said Mrs. Wachsman shall recover said land, in as much as said Lipscomb and Rust will be entitled to one-half the same under said contract of June 1st, 1886, and are desirous of owning the whole of said land, said Wachsman for and in consideration of twenty-five hundred dollars to be paid in cash will convey to said Lipscomb and Rust by good and sufficient deed said land free and clear,” etc.

Reduced to its substance that means it was agreed by the parties that when Mrs. Wachsman recovered the land she would convey her half to Lipscomb and Rust for $2,500 cash. But suppose that when that time came Lipscomb and Rust did not care to buy, what could Mrs. Wachsman do about it?

If that clause had been inserted in the first contract, June 1st, the agreement to sell might have been construed as a part of the consideration for the services to be rendered, that is, that in compensation for their services the attorneys were to have one-half the land recovered and the right to buy the other half for $2,500. But this clause was not in that contract, the attorneys by the contract of June 1st had already obligated themselves to render those services for one-half the land to be recovered, Mrs. Wachsman was entitled to that without further burden; therefore, when she took upon herself an additional obligation a new consideration was required to support it.

The meaning of the language employed in that clause is not entirely beyond doubt, and it may be that viewing it from one standpoint it would be susceptible of a construction that would, from the express agreement to sell, imply an agreement to bny; that is to say, if at the end of the then contemplated litigation Mrs. Wachsman had been in a condition to sell and had tendered a deed and demanded the price, and been refused, she might have had an action for a breach of the implied contract. But if under that state of the ease the contract would be held to "be susceptible of that construction, it could be so on the ground that it ought to be construed most strongly in favor of the client. Because when this second contract was made the relation of attorney and client already existed. But when the attorney sues to enforce specific performance of a contract which he made with his client, and which he himself wrote, if there is a reasonable doubt about the meaning of the language in which' his obligation is expressed, it should be construed, as to him, contra proferentem.

We hold that the agreement of Mrs. Wachsman to sell her half of this land for $2,500 was not supported by any consideration and the plaintiffs are not entitled to a specific performance. [Davis v. Petty, 147 Mo. 382.]

V. The point is made by the appellant that the plaintiffs have waited too long and their cause is stale.

There is no such adverse possession of the land as to bar the plaintiffs’ right to sue for their one-half, and defendant has not suffered by the delay. The improvements, if they deserved to be so called, made by defendant before the institution of this suit, were of a trifling character. He himself testified that he got as much off the land as he paid out for taxes. There is nothing in that point.

The only error in the record is in that part of the decree which awards the plaintiffs a specific performance of their alleged contract to purchase Mrs. Wachsman’s half of the land.

The judgment is reversed and the cause remanded to the circuit court with directions to enter a decree on the first count vesting the title to an undivided half of the 13 acres of land in controversy in the plaintiffs, and judgment on the second count for possession of that undivided half, with $15 damages and rents at the rate of twenty-one and one-fourth cents per month from May 16, 1903, until paid, and as to the other undivided half the decree and judgment he entered for defendant, plaintiffs having leave to withdraw the $250 paid into court by them.

All concur.