author: FOX, J.

text:
    ROBERT NEIL v. ISAAC M. RIDGE et al., Appellants.
    Division Two,
    May 18, 1909.
    1. TAXBILLS: Sewer District: Omission of Railroad Right of Way. The charter of Kansas City provides that the cost of district sewers shall he by the board of public works apportioned and charged against the lots of land in the sewer district exclusive of the improvements and in the proportion that their respective areas hear to the whole district exclusive of the streets, avenues, alleys and public highways. Held, that taxhills assessed against private property are not void because the board did not include the right of way of a railroad as a part of the area of the district, and did not charge the lots and land belonging to the railroad company and included in its right of way with the costs of the improvement. Such omission was, at most, a mistake, for the correction of which the charter makes provision, and the apportionment having been made the taxhills were not void.
    2. -: -: Correction of Mistake: Insufficient Pleading. And where the defense to the suit on the taxhills is that they are void, for that the railroad right of way was not included as a part of the area of the district, and the omission is held to be a mistake which under the charter may be rectified, the answer is insufficient to authorize the court to correct the mistake by proportionately reducing the amount of the tax-bills, and hence the court is not called upon to decide whether or not the board correctly omitted the railroad right of way from their computation of the whole area and from the apportionment of the costs of the improvement.

      3. -: -: Mistakes Meant By Charter. That part ■ of the charter of Kansas City concerning the correction of mistakes in taxbills is very broad, and embraces mistakes and errors of every kind which are susceptible of a correct determination by the trial court. It does not confine the court’s action to mistakes respecting the manner in which the work was done or the amount of the work accomplished. It includes mistakes in calculating the area of the sewer district, whether the calculations are the result of correct calculations upon wrong data, or incorrect calculations upon right data, or both.
    4. -: -: -: Power of Court to Correct Mistakes: Assessment Imposed Upon Board. The court has-the power and right to reduce the amount of the taxbill where its excessive amount results from excluding from the taxable area property which was in fact a part thereof; and it is not forestalled from making such correction, and compelled to declare the taxbill void because of its excessive amount, because the charter requires the board of public works to make the apportionments of the costs of the public work.
    5. -: Reduction of Assessment: Interest on Balance. Where the taxbills, because of erroneous calculations as to the amount of rock excavation done, were issued for too large an amount, and the court reduced them by the amount of the excess, and rendered judgment for the balance, the plaintiff is entitled to interest on such balance from the date mentioned in the taxbills, and not simply from the date ■ of judgment, unless defendant made tender for said balance when the taxbill became due.
    Appeal from Jackson Circuit Court. — Hon. W. B. Teasdale, Judge.
    Affirmed.

      Lathrop, 'Morrow, Fox & Moore for appellants.
    (1) It was error not to assess a portion of the cost of the work of constructing the sewers in question against the land of the Kansas City Belt Railway Company lying within the sewer district. Heman Construction Co. v. Railroad, 206 Mo. 172. (2) The above constituted a failure of the board of public works to make an apportionment of the cost of the work as required by the charter of Kansas City, and the taxbills are therefore void. Sec. 10, art. IX, charter of Kansas City; Dollar Savings Bank v. Ridge, 62 Mo. App. 324; Menefee v. Bell, 62 Mo. App. 659; Mc-Quiddy v. Vineyard, 60 Mo. App. 610. The foregoing cases approved : Dollar Savings Bank v. Ridge, 183 Mo. 506. (3) The referee and the circuit court erred in allowing interest on the taxbill sued on from the date of issue, when the referee found that the bills were excessive by $1,408.60 on account of too large an allowance for rock excavation. In view, however, of the fact that the bills are void for the two reasons above mentioned, it is not necessary at this time to argue this proposition.

      Arthur Miller and Karnes, New & Krauthoff for respondent.
    (1) Plaintiff contends that under the Kansas City charter the right of way should not have been included in the assessment, (a) The charter of Kansas City, with reference to the assessment of the cost of the construction of sewers, does not include the right of way of a railroad; (b) Railroad rights of way are expressly excluded by the charter of Kansas City from any assessment for the cost of the construction of a sewer. Charter of Kansas City, sec. 10, art. 9; Kansas City to use v. Swope, 79 Mo. 446; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316; Independence v. Gates, 110 Mo. 3801; Inh. of Houstonia v. Grubb, 80 Mo. App. 433; Nevada to use v. Eddy, 123 Mo. 546. Unless there is a provision in the charter of Kansas City authorizing the issuance of a taxbill against a railroad right of way for the cost of constructing a sewer, the right of way is not liable to be assessed. It must be recalled this is not a question of exemption from liability; it is a question of whether the charter makes the railway right of way liable. Plaintiff contends that the language of the Kansas City, charter, to-wit, “against the lots of land in the district,” is not sufficient to include a railroad right of way, and that the term “lots of land” does not apply to a railroad right of "way in a city. Buncombe Co. Commrs. v. Tommey, 115 U. S. 122. A railroad right of way in a street cannot come within the term lot. Railroad v. Capital Paving & Cons. Co., 24 Ind. App. 114; Railroad v. Winnebago, 89 Wis. 435. ■ It has been held in a great many cases that a railroad is a public highway. Brown v. Railroad, 137 Mo. 537; McLucas v. Railroad, 93 N. W. 928; Railroad v. Sutor, 56 Tex. 496; Davidson v. Ramsey Co. Commrs., 18 Minn. 482; Sharpless v. Philadelphia, 21 Pa. 147. (-2) The failure of the board of public works to assess a portion of the cost of the work of constructing the sewers in question against the land of Kansas City Belt Railway Company lying within the sewer district, does not make the taxbills sued on in this cause void m toto. The Kansas City Belt Railway Company is not a party to this action. This is not a suit on the taxbills against that company. This is an action against a property-owner whose: property is in the district, and which property is not a portion of the right of way. Defendants in the case at bar have no right to complain of the failure of the board of public works to include in the apportionment the property of the Kansas City Belt Railway Company, except in so far as such failure may have increased the amount of the taxbills issued against the property of defendants. This being the only tenable contention of defendants, the whole matter is remedied by having a judgment entered on the tax-bill for the proper amount thereof. Neenan v. Smith, 60 Mo. 292; Bank v. Amoldia, 63 Mo. 229; Bank v. Nelson, 64 Mo. 318; Farrar v. St. Louis, 80 Mo. 379; Johnson v. Duer, 115 Mo. 366; St. Joseph ex rel. v. Wilshire, 47 Mo. App. 132; Creamer v. McCune, 7 Mo. App. 91; City of Boonville ex rel. v. Rogers, 125 Mo. App. 142; St. Joseph, v. Dillon, 61 Mo. App. 317; Quest v. Johnson, 58 Mo. App. 54. The cases cited hy defendants have no application to the facts of the case at bar. In Dollar Savings Bank v. Eidge, 62 Mo. App. 324, there was no computation at all, nor any apportionment of the cost. In Menefee v. Bell, 62 Mo. App. 659, the taxbill was held valid. In McQuiddy v. Vineyard, 60 Mo. App. 610, there was no apportionment by the board of public works. In Dollar Savings Bank v. Eidge, 183 Mo. 506, the taxbills sued on were held valid, and the ease of McQuiddy v. Vineyard and Dollar Savings Bank v. Eidge were only cited to the point that an ordinance providing for the construction of a sewer was not invalid because adopted at a special meeting of the city council, which it was claimed had not been legally called. The question now under consideration was not even mooted, much less decided. (3) The fact that the taxbills issued and sued on in the case at bar may have been for an excessive amount, does not prevent the holder of the taxbill recovering interest on the proper amount from the date of the issue of the taxbill. Neenan v. Smith, 60 Mo. 292. In the authorities cited in point 2 of this brief, the doctrine has been generally recognized that a taxbill issued for an excessive amount was not void in toto; that the correct amount of the taxbill could be ascertained and judgment rendered for this amount. In none of these cases was it contended by the eminent counsel representing the parties that interest on the taxbill as corrected would only run from the date of the judgment thereon. The common opinion of the legal profession is very good evidence of what the law is. Venable v. Eailroad, 112 Mo. 125; Barber Asphalt Paving Co. v. Meservey, 103 Mo. App. 186; Steinhauser v. Spraul, 127 Mo. 561; Verdin v. St. Louis, 131 Mo. 125; Watson v. Alderson, 146 Mo. 351; Pears v. Eiley, 148 Mo. 64; Westerman v. Supreme Lodge. 196 Mo. 709; Hale v. Stimson, 196 Mo. 164; Donnell v. Wright, 199 Mo. 316.
   FOX, J.

This cause is now presented. to this court by appeal upon the part of the defendants from a judgment of the circuit court of Jackson county, in favor of the plaintiff upon certain taxbills issued for the work of constructing sewers in sewer district No. 61, in Kansas City, Jackson county, Missouri. The bills aggregate $4,487.50.

The sufficiency of the petition upon these taxbills is not challenged, hence it is not essential that we burden this statement with a reproduction of it.

The answer of the defendants, which was filed on June 18, 1901, was, first, a general denial of the allegations in the petition. Then follows the new matter in the answer, setting up other defenses. Such new matter is thus stated in the answer:

“Further answering plaintiff’s petition and each and every count thereof, these defendants say that it is and was provided by the charter of Kansas City, Missouri, by section 10 of article 9 thereof, that the cost of district sewers shall be by the board of public works apportioned and charged against the lots of land in the district exclusive of the improvements and in the proportion that their respective areas bear to the area of the whole district exclusive of the streets, avenues, alleys and public highways; but that the pretended taxbills issued for the work done by said construction company, under said alleged Ordinance No. 8512, are not so apportioned and are not issued against all of the property lying within the said district, and that, among other property exempted from the lien of the taxbills so issued, is a large area of land or lots lying within said pretended Sewer District No. 61, belonging to the Kansas City Belt Railway Company, which said land owned by said railway 'company was omitted altogether from the assessment hy the hoard of public works against the property chargeable with the cost of said sewers; that, by reason of such omissions, neglect and failure of the said board of public works so to assess such land as aforesaid, the amount of the said special bills charged against each and every of the lots and parcels of the land of these defendants, has been illegally and wrongfully increased beyond the sums and amounts authorized by the said charter of Kansas City, and in violation thereof.
“Also the construction company is allowed in said pretended final estimate (for the taxbills) the sum of $2,817.60 for rock excavation, although in fact said Construction Company did not excavate 1408.8 cubic yards of rock, as shown in said pretended final estimate, and did not excavate solid rock in excess of five hundred cubic yards, and the price of excavating per cubic yard, to-wit, $2, is largely in excess of a reasonable price therefor.”

On April 15, 1902, and during the January term, 1902, the plaintiff filed its motion for an order of the court to refer the cause to referee, which order was duly made, and the cause referred to the Hon. Edward P. Gates, to hear the evidence and report the evidence to the court, together with his findings of facts and conclusions of law. The evidence was taken by the referee and on the 22d day of June, 1904, the said Edward P. Gates, referee, reported his findings of facts and conclusions of law to the circuit court of Jackson county, Missouri, at Kansas City.

There was no dispute about the facts. The computation of the cost of construction of said sewer was made and apportioned to the property lying within such sewer district, with the exception of the right of way of the Kansas City Belt Railway Company, a portion of whose right of way it is admitted lies within Sewer District No. 61»

We do not deem it necessary to reproduce in detail the report of the referee. It is sufficient to say that his findings were in favor of the plaintiff for the full amount of the taxbills, with the exception of a reduction in the taxbills of $1,408.60, which the referee found should be deducted on account of excessive estimate and charge for rock excavation.

Defendants filed exceptions to the report of the referee, which exceptions, at the April term, 1904, of said Jackson Circuit Court, were overruled, and judgment upon the finding and report of the referee was rendered against said defendants in favor of the plaintiff, to all of which defendants excepted and still except.

Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. From the judgment rendered in this cause defendants prosecute this appeal, and the record is now before us for consideration.

OPINION.

The record in this cause discloses but two legal propositions which are submitted for our 'consideration.

First. On the part of the appellants it is earnestly insisted that the taxbills upon which this action is predicated are void for the reason that certain portions of the right of way of the Kansas City Belt Railway Company, which was within Sewer District No. 61, was omitted by the board of public works in making the computation and apportionment of the cost of the construction of the sewer in Sewer District No. 61 in Kansas City, Jackson county, Missouri. In other words, the defendants contend that by reason of the omission of the right of way of the railway company by the board of public works in making computation and' apportionment of the cost of the sewer the taxbills issued against defendants’ land were illegally and wrongfully increased beyond the amount authorized by the city charter for the construction of the sewer.

Second. It is next insisted by the appellants that the referee having found the amount of the taxbills respecting the rock excavation was excessive, and in his findings deducted $1,408.60, under that state of facts the court committed error in allowing interest upon the amount of the taxbills for rock excavation as found by the referee.

Third. On the other hand the respondents contend that under the provisions of the charter of Kansas City the right of “way of the railway company was not subject to assessment for any portion of the cost of the construction of the sewer, and that the board of public works correctly omitted such , right of way located within the sewer district from their computation of the cost of such sewers.

Fourth. It is next insisted that even though such right of way should have been included in the computation and apportionment of the cost of the construction of the sewers, the omission of it by the board of public works from such computation and apportionment did not render the taxbills void.

< Fifth. Upon the proposition that the court erroneously allowed interest upon the amount found to be due by the referee respecting the rock excavations,^ after deducting the amount which was found by the referee to be an excessive charge, respondent insists that the defendants not having tendered the amount due upon that item of cost, the interest was properly chargeable against them for the amount which iwas due for the work which was actually performed as found by the referee in his report.

L

Directing onr attention to the first proposition as to the omission by the board of public works to include in their computation and apportionment the cost of the construction of the sewers, the land embraced in the right of way of the railway company which was located within the sewer district, it is apparent that the defendants tried this cause upon the theory that such omission rendered all of the taxbills void. That this was the theory upon which the defendants proceeded in the lower court is obvious from the answer filed by them, as well as the contentions urged in this court upon that proposition by learned counsel for appellants. In other words, it is not sought in the trial court to plead and offer any proof as to errors or mistakes in the computation and apportionment by the board of public works of the cost of the construe-tion of the sewers upon the lands embraced within the area of the sewer district; but the defendants rest their defense as to this proposition upon the allegations in the answer that the land embraced in the right of way of the railway company, located in the sewer district, was not included in the computation and apportionment of the cost of construction of the sewers in said district.

Responding to the insistence of appellants upon this proposition, after a most careful consideration of the disclosures of the record now before us, as well as the authorities bearing npon the legal propositions confronting us, we are of the opinion that the taxbills issued, which are the basis of this action, are not void.

Manifestly if the taxbills involved in this proceeding are void by reason of the omission of the land embraced in the right of way of the railway company, it logically follows and the same principle is applicable that if the board of public works, in the discharge of the important functions imposed upon it by the charter of Kansas City, and in dealing with the numerous improvements which are being made by that enterprising city, should omit an area of one, two, three or four square feet of land embraced within the improvement district from their computation and apportionment of the cost of the improvements, that would also nullify any taxbills issued upon such computation and apportionment. We are unwilling to sanction this principle as being applicable to the question before us.

Learned counsel for appellant direct our attention to the cases of Savings Bank v. Ridge, 62 Mo. App. 324; Menefee v. Bell, 62 Mo. App. 659; McQuiddy v. Vineyard, 60 Mo. App. 610, and Savings Bank v. Ridge, 183 Mo. 506, as supporting their contentions upon the propositions now under discussion. We have carefully analyzed the decisions to which our attention has been invited by counsel and in our opinion there is a marked distinction in those cases and in the case at bar. In Bank v. Ridge, supra, it will be observed that the board of public Works failed to make any computation at all or any apportionment of the cost of the construction of the improvement. In the case at bar it is conceded that a computation and apportionment was made of the cost of the construction of the sewers in the sewer district, and the defense interposed, that the taxbills issued were void, is predicated alone upon the theory that certain portions of land embraced within the improvement district were omitted from such computation and apportionment. It is sufficient to say of Menefee v. Bell in the 62 Mo. App., the taxbill was held valid. In McQuiddy v. Vineyard, supra, it was expressly ruled that there was no apportionment by the board of public works. While it is true there was an effort-1 made at computation and apportionment, but such effort was made by the delegation of the powers vested in the board of public works to other parties to discharge the duties imposed upon the members of the board of public works. It was ruled that such power could not be delegated, and that a computation and apportionment made by those to whom it was sought to delegate such powers was not a compliance with the charter provisions, and in fact was no computation or apportionment at all. That is not this case. There was in fact a computation and apportionment made by the members of the board of public works in the case at bar.

The organic law of the municipality of Kansas City, Missouri, fully recognized that in the improvement and development of a large city there would be mistakes and errors by the officials upon whom rested the important work of adjusting the accounts of those who performed work in the making of the improvements essential to the proper development of the municipality. Section 18 of article 9 of the charter of Kansas City, provides, first, that “every taxhill shall in any suit thereon be prima-facie evidence of the validity of the bill, of the doing of the work and of the furnishing of the material charged for, and of the liability of the land to the charge stated in the bill.”

As before stated, that the organic law of the city, its charter, fully recognized that officials in the discharge of their duties were but human, and now and then would make a mistake or commit an error in the discharge of such duties, there was inserted (following the provision that the taxhill in any suit should be prima-facie evidence of the validity of the bill), with the view of avoiding any delays in adjustment and settlement of accounts for the improvement of the city, the following practical proviso, which expressly recites :that, “Provided that nothing in this section shall be so construed as to prevent any defendant from pleading and proving, in reduction of any bill, any mistake or error in the amount thereof, or that the work therein mentioned was not done in a good and workmanlike manner; and provided further, that if any party shall plead any mistake or error in the amount of the bill, or that the work, was not done in a workmanlike manner, and that such party, before the commencement of the suit, tendered to the contractor or holder of the bill the full value of the work done, and shall establish the same on trial, the recovery shall only be for the amount so tendered, and judgment for costs shall be rendered against the plaintiff.”

Section 10 of article 9 of the charter of Kansas City, as applicable to the manner of computing and apportioning the cost of the construction of any district sewer, provides: “As soon as the work of constructing, changing, diminishing, enlarging or extending any district sewer shall have been completed under a contract let for the purpose, the board of public works shall compute the whole cost thereof, and apportion and charge the same as a special tax against the lots of land in the district, exclusive of the improvements, and in the proportion that their respective areas bear to the area of the whole district, exclusive of the streets, avenues, alleys and public highways, and shall, except as hereinafter provided, make out and certify in favor of the contractor or contractors to be paid, a special taxbill for the amount of the-special tax against each lot in the district.”

It will be observed from that provision that the cost of the sewer is apportioned against the lots of land in the district, exclusive of any improvements, and it is expressly provided that the apportionment and charge against the lots shall be made exclusive of the improvements, and in the proportion that their respective areas bear to the area of the whole district, exclusive of the streets, avenues, alleys and public highways.

Manifestly under the provisions of the charter as herein indicated, if the board of public works erroneously omitted from their computation and apportionment that part of the right of way of the railway company which was located within the sewer district, such omission should only he treated as a mistake or error contemplated by the charter provisions heretofore referred to, which was susceptible of correction upon proper pleadings and proof in the trial court. Under the pleadings in this case we shall not undertake to determine the proposition as to whether or not the omission of that portion of the right of way of the railway company located within the sewer district from the computation and apportionment made by the board of public works, was erroneous or not. It is sufficient to say that if the board of public works committed an error or mistake in the computation and apportionment, by omitting the right of way from their calculation in the opportionment of the cost of the construction of the sewer, it was simply such a mistake or error as would authorize the defendants, under the proviso in the charter, to plead and prove in reduction of such taxbills the mistake or error committed by the board of public works in making their computation. Clearly if the error as complained of in this case was committed by the board of public works, it was susceptible of correction to a mathematical certainty. The railway companies owning the right of way are not parties to this suit, nor is this plaintiff seeking to enforce a lien of a taxbill against the right of way, and the defendants have no interest in the question as to whether the board of public works embraced the right of way in their computation and apportionment, further than to show that the tax-bills against their property were increased by reason of omitting the railway company’s right of way from the computation and apportionment of the cost for the construction of the improvement. In other words, that the calculations respecting the apportionment of the cost was made by the board of public works upon wrong data. If the board of public works committed an error or mistake in the omission of the railway right of way from their computation, the effect of such error and mistake upon the taxbills as against the property of the defendants was easy of determination and capable of rectification, and the amounts to which the defendants were entitled to have their tax-bills reduced were susceptible of ascertainment to a mathematical certainty. The entire cost of the construction of the sewers was known; the area of that portion of the right of way of the railway company located within the sewer district could readily be ascertained, and it was simply a matter of mathematical calculation as to what proportion the area of the right of way of the railway company bore to the area of the whole district, and the exact amount of the burden of the cost of the construction of the sewers in that district the land omitted should bear. This calculation would demonstrate the amount of reduction that should be made upon the taxbills issued against the property of the defendants, and had the defendants in their answer fully set forth the mistake or error committed, indicating the excessive charge in the taxbills by reason of the omission to include the right of way of the railway company, the trial court had full power and authority to correct the error or mistake, if any was made. If the answer of the defendants upon the theory as herein indicated, that the board of public works had made a mistake or error in the computation and apportionment of the cost of the construction of the sewers in the district, or rather that their calculations as to the computation and apportionment of the cost, by reason of not including the right of way of the railway company, were made upon wrong data, and the trial court should have refused to have rectified such mistake, then this court would be confronted with the proposition as to whether or not the board of public works correctly omitted the right of way of the railway company from their computation and ap-portionment of the cost of the construction of the improvement. However, the defendants in the trial court did not proceed upon that theory, a theory which is contemplated by the proviso in the charter, that where a reduction in the taxbill is sought by reason of any mistake or error in the amount thereof, the defendant shall plead and prove the facts upon which such reduction is sought. As heretofore stated, the defendants in their answer simply alleged the omission by the board of public works to include in their computation and apportionment of the cost of the construction of the sewer that portion of the right of way of the railway company located within the sewer district, followed by an allegation that the taxbills were illegally and wrongfully issued. The answer was not sufficient, if the trial court had so desired to have authorized the introduction of the proof of a mistake in the amount to which defendants were entitled to have their taxbills reduced by reason of such mistake or error.

It does not furnish a correct solution of this proposition to say that the mistakes or errors committed, which were susceptible of correction in the trial court, are confined to mistakes respecting the -manner in which the work was done or the amount of work actually performed, or in other words to mistakes made in mere calculations respecting computation and apportionment of the cost of the construction of the improvement upon correct data. The proviso in the charter of Kansas City is very broad, and in our opinion embraces-mistakes and errors of every character and nature which are susceptible of an absolute correct determination by the trial court. This proviso expressly recites that “nothing in this section shall be so construed as to prevent any defendant from pleading and proving, in reduction of any bill, any mistake or error in the amount thereof.”

In First National Bank of Kansas City v. Nelson, 64 Mo. 418, the plaintiff sought a recovery upon a tax-bill for work done in grading a sidewalk on Tenth street, in Kansas City. The defendant Nelson owned a lot on the south side of said street, against which the taxbill was issued. The work was done under a contract for grading the side'walk on both sides of Tenth street, from Main street to an alley east of Cherry street. The cost of grading the north side of said Tenth street exceeded the cost of grading the south side, but in apportioning the cost of the work the engineer took the aggregate length of the sidewalk, and apportioned the entire cost among the lots on the street according to their frontage. By this apportionment the defendant’s lot was assessed $3.17 more than if the engineer had estimated the work separately for the two sides, charging each side with the cost of its grading. Manifestly in that case the apportionment of the cost was erroneously made. The plaintiff requested this instruction, which was refused by the court: “Even if both sidewalks were included in the taxbill, yet, if the work was measured on each sidewalk, and from the evidence it can be determined how much is properly chargeable on the lot in question, then the plaintiff is entitled to judgment for the amount properly so chargeable.” The court then gave an instruction upon .the part of the defendant that if the taxbill in suit was based upon a computation and apportionment of the cost of grading the sidewalks on both sides of Tenth street, and not upon a computation and apportionment of the cost of grading the sidewalk on the south side only of said Tenth street, then the finding must be for the defendant. With the instruction refused as offered by the plaintiff and the instruction given by the trial court for the defendant there was nothing left for the plaintiff to do except to take a nonsuit, with leave to move to set the same aside, which was done, but the court overruled the motion to set the nonsuit aside and for a new trial, and an appeal was granted to this court. Judge Henry, speaking for this court, referred to the proviso in the charter, which provided that “nothing in this section shall he so construed as to prevent any defendant from pleading, in reduction of the hill, any mistake ,or error in the amount thereof, or that the work therein mentioned was not done in a good and workmanlike manner.” Following this reference to the proviso it was expressly ruled that this proviso in the charter was not confined to mere mistakes in calculation upon correct data, but it equally extends to correct calculations upon wrong data. In treating of this proposition, the learned and esteemed judge said: “The counsel for respondent, in a very able and ingenious argument, contends that the proceedings were strictissimi juris, and that the plaintiff could not recover on the taxbill, unless the city engineer made it out correctly; that to permit the court to go into this inquiry is to let the court or jury, whichever tries the issue of fact, virtually make out the taxbill. The statute makes provision for correcting an error in the taxbill in the proviso we have quoted. It makes the taxbill prima-faeie evidence, but allows the defendant to show an error or mistake in the amount thereof, or that the work was not done in a workmanlike manner. It does not confine this to mere mistakes in .calculations upon correct data, hut it equally extends, in our judgment, to correct calculations upon wrong data. The error in this taxbill was not an error in the apportionment of the costs on the basis adopted, but the error was in the basis upon which it was made. The cases of Neenan v. Smith, 60 Mo. 292; First Nat’l Bank of Kansas City v. Arnoldia, 63 Mo. 229, are decisive of this.” For the errors in refusing plaintiff’s instruction and giving defendant’s instruction in this cause the judgment was reversed and the cause remanded.

It is not a sufficient answer to the conclusions reached in this cause to say that if the mistake or error of the board of public works were corrected by the trial court such correction would in effect be a computation and apportionment by the court of the cost of the construction of the improvement chargeable against the land embraced in the right of way of the. railway company, in violation of the provisions of the charter of Kansas City, which required the board of public works to make such computation and apportionment. It is sufficient to say upon that proposition that the owners of the right of way of the railway company are not parties to this suit, nor is it sought to enforce a tax lien against their property. If so, the owners of such right of way would be in a position to interpose the objection to the calculations as made by the trial court, but the defendants in this cause clearly are in no position to complain at the calculations which may be made by the trial court respecting the area of property which has not been included in the computation and apportionment made by the board of public works, in order to ascertain the correct amount with which the taxbills of the defendants should be credited by reason of the omission of the land embraced in the right of way from the computation and apportionment made by the board of public works.

In the early case of Creamer v. McCune, 7 Mo. App. 91, the St. Louis Court of Appeals had in judgment the same proposition as is involved in the case at bar. Judge Lewis, in speaking for that court, said that the defense chiefly relied on is that some of the property within the district to be taxed was omitted from the assessment. Judge Lewis, in treating of the computation made in this cause, said: “The computation of the amount due upon the defendants’ property for the work done was therefore erroneous. But does it follow that the contractor can recover nothing for his labor and expenditure on the sewer? To hold this would be to defeat the manifest ends of justice and the clear intent of the law.” In further treating of the proposition involved in that case the learned judge referred to the case of Neenan v. Smith, 60 Mo. 292, wherein this court used this language: “The court properly enough refused defendant’s first instruction, because it made the taxbill entirely void if any other work or materials were apportioned or assumed in the bills than what was included in the contract. This would have invalidated the bills, and deprived the contractor, who had honestly done his work, of all redress, if the engineer had made a trifling mistake in the matter of the computation or assessment. A proposition which would lead to such a result would be manifestly unjust, and cannot be law.” Following the reference to that case the conclusions of the court upon the propositions then in hand were clearly announced in the following language: “It is clear, therefore, that the contractor’s right to be paid' for his work will not be made to stand or fall by the- accuracy or inaccuracy of the engineer’s computation or apportionment. The engineer may correct his errors and issue a new taxbill. This being the case, there seems to be no reason, on principle, why the trial court may not, upon the discovery of an error which is easily determinable and capable of rectification, apply the proper correction in a reduction of the amount to be recovered. In Nee-nan v. Smith, above cited, it was held that an over-assessment resulting from the introduction of matters not properly chargeable against the defendant’s property might be deducted by the jury, and the correct amount be thus ascertained. The rule is equally applicable here, where an over-assessment results from a failure to include certain assessable property in the apportionment. The circuit court refused to instruct for the plaintiff to this effect. The judgment is therefore reversed and the cause remanded, with the concurrence of all the judges.”

It will be observed that the proposition confronting the St. Lonis Court of Appeals in the case last cited was identical with the proposition confronting us in the case at bar, and it was expressly ruled that the rule which permitted the jury to deduct the matters not properly chargeable against the defendant’s property was equally applicable in case of an over-assessment or a failure to include certain assessable property in the apportionment. In other words, we take it that the St. Louis Court of Appeals in that case expressly held that, where the taxbills were increased by reason of a failure to include certain assessable property in the apportionment, such mistake or error might be corrected in the trial court upon proper allegations in "the answer and proof supporting such allegations, by a reduction of the taxbills to the extent of the increase of such taxbills by reason of the omission of certain assessable property in the calculations respecting the computation and apportionment of the cost of the improvement.

Again in Farrar v. St. Louis, 80 Mo. 379, where it was sought to recover upon taxbills for certain street improvements, it was contended that the ordinance was invalid because it did not impose a part of the cost of reconstruction on the railroad companies occupying with their tracks a part of Washington avenue. This court in treating of the insistence upon the part of the appellants held that the railway company was liable for the cost of reconstructing so much of Washington avenue as is included between the rails of the company’s tracks. However, the cost of the improvement between the rails of the company’s tracks was assessed against the property fronting on the avenue, but this court, in discussing that proposition, said that if the “law is not observed, and the cost of the improvement between the rails of the company’s tracks is assessed against the property fronting on the avenue, the most that could be said of it is that the taxbill would only be invalid to that extent, and that it 'would still he valid to the extent of the true amount for which the lot is liable.”

To the same effect is Johnson v. Duer, 115 Mo. 366. In that case an injunction was sought to enjoin the collection of a tax for the building of a sewer. There was ten thousand five hundred feet that was constructed by the contractor, but one hundred and ninety feet of this was not laid along the center of the street as required by the ordinance. It was contended by the property-owners, and they sought to enjoin the collection of the price of constructing the sewer upon that ground,' that the contractor, by reason of the fact that one hundred and ninety feet of this sewer was laid through private property and not along the center of a public street, should forfeit the whole contract price. Judge Maceaklane, in responding to the contentions of the property-owners, said: “So rigid a rule has not been followed even in suits at law upon taxbills. When the statutory proceedings necessary to secure a taxbill have not been observed in some particulars, the tax has been held invalid only as to what was done outside the authority of law,” and the final conclusion was announced in that case that the property-owners should pay the contract price for all the work, except such part as is constructed through private property, and, until a proper proportion of the taxbills is paid or tendered, no injunction should be granted.

See also case of City of St. Joseph v. Dillon, 61 Mo. App. 317. In that case there were certain inlets which were improperly included in the taxbills issued; however, it was apparent that the cost of the construction of the inlets in the sewer district could be readily ascertained, separated and deducted from the entire cost of the sewer. It was ruled in that case that the error could be corrected and the amount of the erroneons charge deducted and the balance of the claim should be duly enforced.

To the same effect is the case of City of Boonville ex rel. v. Rogers, 125 Mo. App. 142, and Quest v. Johnson, 58 Mo. App. 54.

In the comparatively recent case of Dickey v. Porter, 203 Mo. 1, the doctrine of adjusting and correcting mistakes or errors in taxbills was fully recognized. In fact, our attention has not been called to any case¡ by the appellate courts where a mistake or error was committed by the officers in making the computation and apportionment of the cost of the construction of the improvements, where it was held that the error or mistake could not be corrected upon proper pleadings and proof in the trial court.

The eases cited by appellants, to which we have already referred, as heretofore stated, were cases in which no computation or apportionment was made at all. In those cases we are of the opinion that it was properly held that taxbills issued without any computation or apportionment of the cost of the construction of the improvements would be void, but we repeat, in the case at bar there was a computation and apportionment of the cost of the construction made, and if the land embraced within the right of way of the railway company, and located within the sewer district, was erroneously omitted from such computation and apportionment, we are clearly of the opinion that it was a mistake or error, which, under the proviso in the charter of Kansas City heretofore indicated, could have been corrected upon proper allegations in the answer of the defendants and proof of such allegations in the trial court.

If the board of public works erroneously omitted from their computation and apportionment the cost of the construction of the sewer in Sewer District No. 61, then it logically follows that their computation and apportionment was made upon wrong data, and was simply a mistake of the nature and character pointed out by this court in Bank of Kansas City v. Nelson, supra. So it may be said in the case at bar, as was said in that case, the error in the taxbill which formed the basis of this action, was not an error in the apportionment of the cost on the basis adopted by the board of public works in making such computation and apportionment, but the error, if the contention of appellants is to be maintained, that the right of way of the railway company was erroneously omitted from the computation and apportionment of the cost, consisted in the basis upon which the computation and apportionment of the cost was made by the board of public works, and as was said in the last-cited case, the mistakes or errors, the correction of which is fully provided for by the provisions of the charter, is not confined to mere mistakes to calculations upon correct data, but extend to correct calculations upon wrong data. In other words, it is held in that case that it is immaterial whether the error consisted of a mistake in calculations in making the computation and apportionment of the cost upon a correct basis, or whether the error consisted of correct calculations upon a wrong basis — the error or mistake was susceptible of correction in the manner pointed out by the proviso in the charter.

n.

This leads us to the final contention of the appellants, that is, that the referee having found that the taxbills were originally issued for too large an amount respecting the work of rock excavation in the construction of the sewers, no interest should have been allowed on the taxbills for the balance of the taxbills after making proper deductions for the excessive charge concerning the rock excavation.

In the case of Neenan v. Smith, 60 Mo. l. c. 295, the same insistence was made as in the case at bar. It was contended in that case that if plaintiff claimed a greater amount from the defendant than was actually or justly due, no interest should have heen allowed at all on what was really due, and an instruction to this effect was asked and refused. This court, speaking through Judge Wagner, responded to this insistence in this language: “The only way to have stopped the accruing interest would have been for the defendant to have tendered the amount justly due, and then, in the event of a refusal, had plaintiff failed to recover a greater sum, he could have obtained no interest.”

The ruling in that case must be treated as being decisive of the proposition now under consideration. It may be added that it has been the uniform expression of the appellate courts in this State that a taxbill issued for an excessive amount was not absolutely void. That if the correct amount of the taxbill could be ascertained it would be enforced for such correct amount and judgment rendered accordingly.

There have been numerous cases both in the Courts of Appeal and in the Supreme Court on the question of correcting errors and mistakes in amounts of taxbills, and judgments have been enforced for the amounts after deducting excessive charges, and it is significant that in none of those cases was it contended that the interest on the taxbills as corrected should only run from the date of the judgment thereon. However, as before stated, the case of Neenan v. Smith, supra, is a direct adjudication upon that question, and must be held, as heretofore stated, decisive of it.

We have indicated our views upon the legal propositions disclosed by the record, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    ELIZABETH STOEPLER et al., Plaintiffs in Error, v. MORITZ SILBERBERG et al.
    Division Two,
    May 18, 1909.
    1. WARRANTY DEED: After-Acquired Title: Restrictions. A deed containing tbe words “grant, bargain and sell” and a further covenant of general warranty, ordinarily conveys the after-acquired title of the grantor; but where it further recites that it is to embrace all the interest devised to grantor by his father .-and such interest as grantor inherited from his deceased brother and sisters, it does not convey his after-acquired interest inherited from his mother.
    2. -: -: Remainderman: Death of Life Tenant. Birt where the will devised the land to testator’s widow for life and a vested remainder in fee simple to his four (named) children and all of them died except one, the entire fee simple title vested in the surviving child, and a general warranty deed by him during the life of the widow vested the title in the grantee, subject to her life estate, and at her death the entire title went to said grantee.
    3. -: Homestead: No Specific. Finding: Appellate Practice. Where neither party at the trial requested a finding of facts or declarations of law and the finding was general, the judgment, which is adverse to the assertion of homestead by the widow’s heirs, will be affirmed unless the court can say that, upon the evidence, the judgment is manifestly so erroneous that it cannot be sustained upon any theory.

      4. -: -: Less Than Devise. Where the husband’s will gives to his widow property greater in quantity or value than she could hold as a homestead, and she accepts the same, she cannot insist upon her homestead right, if it is repugnant to the terms of the will.
    5. -; -; No Election. Where no steps were taken by the widow to have the homestead admeasured to her upon the death of her husband in 1867, and she never asserted homestead in the premises, but caused the will, which gave her a life estate, to be probated and accepted appointment as executrix thereunder, and continually asserted that she had a life estate only, and the value of the life estate given her exceeded in value her homestead right, and the property itself largely exceeded the statutory value of a homestead, it will not be held that she took a homestead under the statute, which upon her death descended to her heirs.

      Error to St. Charles Circuit Court. — Hon. Jas. D. Barnett, Judge.
    Affirmed.

      T. F. McDearmon. and Broivnrigg, O’Brien Mason for plaintiffs in error.
    (1) In order that a deed may operate to convey an after-acquired title by inurement, it must purport to convey an indefeasible estate in fee simple absolute. Bogy v. Shoab, 13 Mo. 380; Valle v. Clemens, 18 Mo. 486; Eector v. Waugh, 17 Mo. 27; Gibson v. Chouteau,. 39 Mo. 566; Brawford v. Wolfe, 103 Mo. 391; Ford v. Unity Church Society, 120 Mo. 508; Wilson v. Fisher, 172 Mo. 10; Devlin on Deeds (2 Ed.), sec. 947. (2) A deed, the granting part of which conveys an estate less than a fee, will not be enlarged into a fee on account of the fact that it contains a clause of general warranty. Eector v. Waugh, 17 Mo. 27; Davidson v. Manson, 146 Mo. 608; Pelletreau v. Jackson, 11 Wend. 110; Hamrick v. Patrick,'119 U. S. 175; Adams v. Eoss, 30 N. J. L. 509; Wright v. Shaw, 5 Cush. 56; Trull v. Eastman, 3 Met. 123; 2 Coke, Lit. 385 b. (g); Eawle on Covenants of Title (3 Ed.), 393; 3 Washburn on Eeal Property (6 Ed.), sec. 1934; Devlin on Deeds (2 Ed.), secs. 931, 950.

      G. & G. J. Daudt and L. H. BreTcer for defendants in error.
    (1) Under the Homestead Act of 1865 a homestead could only be claimed in land acquired by deed. Schindler v. Givens, 63 Mo. 394; Lincoln v. Eowe, 64 Mo. 138; O’Shea v. Payne, 81 Mo. 518; Loring v. Groomer, 142 Mo. 2; Spratt v. Early, 169 Mo. 369; Clark v. Thias, 173 Mo. 628; Thompson on Homestead, sec. 231. (2) The devise to Louise Stoepler under the will of her husband, Bernard Stoepler, was greater in value than the estate she could have taken in the property in suit under the homestead law. (a) She was, therefore, put to her election, as to whether she would take under the will or under the homestead law. She did elect to take the devise under the will and hence was barred of the homestead. Daudt v. Musick, 9 Mo. App. 174; Davidson v. Davis, 86 Mo. 440; Kaes v. Gross, 92 Mo. 648; Burgess v. Bowles, 99' Mo. 544; Schorr v. Etling, 124 Mo. 42; Ball v. Ball, 165 Mo. 312. (b) The right of the widow to make an election was personal to her and not transmissible by descent to her heirs or legal representatives, and plaintiffs as her representatives claiming as heirs of Frederick Stoepler, who was her sole surviving heir, cannot withdraw her acceptance of the provisions made for her by her husband’s will and now claim a homestead. Welch v. Anderson, 28 Mo. 299; Davidson v. Davis, 86 Mo. 444; Schorr v. Etling, 124 Mo. 47; Ball v. Ball, 165 Mo. 326. (3) The deed from Frederick Stoepler to Moritz Silberberg was a general warranty deed, and by its recitals of ownership and covenants of seizin and warranty Frederick Stoepler was, and now plaintiff as his heirs are, estopped to deny his ownership of the property at the time of the execution of the deed and any title descending to him from his mother after its execution immediately inured and passed to defendant Silberberg. Bogy v. Shoab, 13 Mo. 372; Gibson v. Chouteau, 39 Mo. 568; Lajoye v. Primm, 3 Mo. 538; Glamorgan v. Greene, 32 Mo. 285; Tyler v. Hall, 106 Mo. 319; 11 Am. and Eng. Ency. Law (2 Ed.), 400; 24 lb. 57, 62. (4) The cause having been tried before the court without instructions, the appellate court cannot tell on what theory the cause was tried in the circuit court, and will not weigh the evidence and review the finding below, but must presume the trial court made a proper application of the law to the facts. Weilandy v. Lemuel, 47 Mo. 322; Miller v. Breneke, 83 Mo. 163; Altum v. Arnold, 27 Mo. 264; Conran v. Sellew, 28 Mo. 320; Easley v. Elliot, 43 Mo. 289; Wilson v. Railroad, 46 Mo. 36; Harrison v. Bartlett, 51 Mo. 170; Cunningham v. Snow, 82 Mo. 587; Riffe v. Railroad, 72 Mo. App. 222; Rice, Stix & Co. v. Harper, 74 Mo. App. 383; Bray v. Kremp, 113 Mo. 552; Mauch v. Hornback, 109 Mo. App. 624; Clyburn v. McLaughlin, 106 Mo. 521; Sieferer v. St. Louis, 141 Mo. 586; Gardner v. Robertson, 208 Mo. 612; Martin v. Trail, 142 Mo. 100.
   GANTT, P. J.

This is a writ of error to reverse a judgment of the circuit court of St. Charles county, in an action of ejectment brought by the plaintiffs as the widow and heirs at law of Frederick Stoepler, deceased, against defendants, for real estate in the city of St. Charles, described as “Block 177 of the said city, fronting seventy-five feet more or less on Morgan street and extending back northwardly the same width to the center of the square, and bounded on the north by the lot of Henry Yossick, on the east by Five and a Half street, south by Morgan street and west by the lot of Adolph Kohlmeier; and is part of what is know as Paliardy’s Addition to the City of St. Charles, of Boon Ten of the St. Charles Commons.”

Ouster was laid as of January 7, 1903. The petition was in the statutory form and damages alleged to be $5,000, and monthly rents and profits eighty dollars.

The defendants Bye Turner and John Hickey filed separate answers, denying generally all the allegations of the petition and each for himself alleging his possession of a part of said premises and denying possession of the other portion thereof.

The defendant Moritz Silberberg, for his separate answer, denied each and every allegation of the petition and then alleged that he was not in the actual possession of the whole or any part of the premises, but that he had rented the same to the defendants, John Hickey and Bye Turner; the east half of said premises to the said Hickey, and the west half to the said Bye Turner. At the commencement of this suit, the said parties were in the actual possession each of the part rented to him. For further answer the defendant Silberberg states that on the-day of---, 1866, one Bernard Stoepler, under whom defendant as well as plaintiffs claim title- to the real estate described in the petition, died the owner in fee of said real estate. That said Bernard Stoepler left a last will which was duly probated in the probate court of St. Charles county on the 14th of November, 1867, in and by which in said last will he devised said real estate to his widow Louise Stoepler, for and during her natural life and the remainder after her death to his children, August, Louise, Frederick and Mary. That on or about the 19th day of December, 1883, this defendant, while residing in St. Louis, was engaged in the grocery business and owned a valuable stock of groceries and merchandise of the value of twenty-four hundred dollars; that at said last-mentioned date, Frederick Stoepler, one of the children of Bernard Stoepler, deceased, and said widow, Louise, whom this defendant had prior to that date married, represented to this defendant that he the said Frederick Stoepler had acquired all the right, title and interest of his aforementioned brothers and sisters, and that he was the owner in fee of said real estate subject only to the life estate of the said widow, Louise, devised to her by the last will of her deceased husband. Said Frederick Stoepler and said widow Louise requested this defendant to exchange his said grocery business and stock of merchandise in St. Louis for said real estate; that relying upon said representation of the said Frederick Stoepler and the said widow, Louise, and believing that the said Frederick Stoepler was the owner of said real estate, subject only to the life estate of the said widow Louise, defendant consented to make the exchange so requested, and sold and delivered said grocery business and merchandise to the said Frederick, and in consideration thereof said Frederick made, executed and delivered to this defendant his deed conveying the said real estate in the petition described. That said Louise died on the 13th day of February, 1894, and said Frederick Stoepler died subsequently thereto. That plaintiffs claim title to said real estate by descent of said widow Louise, and as heirs of said Frederick. Defendant states that by reason of the representations of the said Frederick and the said Louise, the plaintiffs as their heirs are estopped from asserting any claim in said real estate, and from denying that the fee simple title to the same was owned by and vested in said Frederick at the time of his conveyance to this defendant. Defendant further alleged that after the conveyance to him of this land, he entered into and has ever since been in open, absolute, adverse possession of the same, and has made lasting and valuable improvements thereon, and paid out large sums of money for repairs and insurance and taxes, to the amount of three thousand dollars, all with the knowledge and consent of the said Frederick and the said widow Louise and their heirs, who stood by while defendant was making said improvements and repairs and laying out said sums of money, without in any way disclosing to this defendant, his, her or their claim to said real estate.

For further answer defendant stated that the said Frederick by his deed covenanted for himself and his heirs, to and with this defendant, his heirs and assigns to warrant and defend the title of said real estate to this defendant against the claim of every person whomsoever, and that he the said Frederick Stoepler at the time of the execution of said deed was seized of an indefeasible title in fee simple in said real estate; that said real estate was free from any .incumbrance done or suffered by him or any person under whom he claimed and that he and his heirs would make every assurance of said real estate to defendant, his heirs and assigns. And defendant avers that the plaintiffs are the heirs of said Frederick, they as snch heirs have not kept and performed the covenant of their said ancestor, but on the contrary have brought this suit to eject this defendant and his tenants from said premises. Defendant avers that said Frederick Stoepler died insolvent leaving no estate whatsoever and that plaintiffs are utterly insolvent.

In their reply the plaintiffs admitted that John Hickey and Bye Turner, at the time of the commencement of this suit, were in possession of parts of the premises as set forth in plaintiffs’ petition and denied all the other new matter alleged in said second defence. And for reply to the third defence, plaintiffs admitted that in 1866 Bernard Stoepler, under whom plaintiffs as well as the defendants claim title to the said real estate, died the owner in fee of the said real estate, and that Louise Stoepler died on the 12th day of February, 1894, and that Frederick Stoepler died subsequently thereto, and that plaintiffs claim title by descent from and as heirs of said Frederick Stoepler. Plaintiffs denied each and every other allegation of new matter in said third defence. And. to the fourth defence plaintiffs admitted that they had brought this suit to evict defendant and his tenants, but denied each and every other allegation therein contained.

The case was tried to the court without a jury at the March term, 1905, and resulted in a judgment in favor of the defendants without considering the two cross-bills in defendant Silberberg’s answer. In due time plaintiffs filed their motions for new trial, which were overruled by the court and exceptions duly saved and from the judgment plaintiffs have appealed in proper form to this court.

Bernard1 Stoepler, who died in the year 1867, was seized in fee of the property in controversy and both the plaintiffs and the defendant Moritz Silberberg claim title under said Bernard, and the other defendants are merely the tenants of said Silberberg. Bernard Stoepler left him surviving at the date of his death in 1867 his widow, Louise Stoepler, and the following children, Louise, Frederick and Mary. All of these children with the exception of Frederick died without issue, prior to December 10, 1883. On December 19th, 1883, Frederick conveyed his interest in this property to the defendant Silberberg, who had prior to that date married Frederick’s mother, Louise Stoepler. Mrs. Louise Stoepler Silberberg died February 12, 1894, leaving Frederick Stoepler as her sole heir at law. The plaintiffs, are the widow and children of the said Frederick who died in January, 1903. The deed from Frederick Stoepler to defendant Silberberg is in these words:

“Know all men by these presents, that I, Frederick Stoepler, of the City of St. Louis, in the State of Missouri, have this day, for and in consideration of the sum of twenty-four hundred ($2,400) dollars, in hand paid by Moritz Silberberg of the county of St. Charles in the State of Missouri, granted, bargained and sold, and by these presents do grant, bargain and sell, unto the said Moritz Silberberg and to his heirs and assigns forever the following described tract or parcel of land situate in the county of St. Charles, in the State of Missouri: That is to say, all such right, title and interest that I have in and to a house and lot in block No. 177 of the city of St. Charles, Missouri, fronting seventy-five feet more or less on Morgan street and extends back northwardly the same width to the center of the square; said lot is bounded on the north by lot of Henry Yossick, on the east by Five and a Half street, south by Morgan street and west by lot of Adolf Kohlmeier. And is a part of what is known as Pallardy’s Addition to the city of St. Charles of Boon Ten of the St. Charles Commons. This deed is to embrace all the interest in the aforesaid real estate that I inherited from my father, Bernard Stoepler, deceased, and devised to me in his last will and testament and also such interest that I inherited from my sisters, Mrs. Znrmnehlen, deceased, and Mary Steepler, deceased, and also my brother, August Steepler, deceased.
“To have and to hold the premises hereby conveyed, with all the rights, privileges and appurtenances thereto belonging, or in anywise appertaining unto the said Moritz Silberberg, and to his heirs and assigns forever; the said Frederick Stoepler hereby covenanting- to and with the said Moritz Silberberg, his heirs and assigns for himself, his heirs, executors and administrators, to warrant and defend the title to the premises hereby conveyed against the claim of every person whatsoever.
“In witness whereof, I have hereto subscribed my name and affixed my seal this nineteenth day of December, 1883.
‘‘Frederick Stoepler, (Seal.)”

Which deed was duly acknowledged by the said Frederick and recorded January 5, 1884.

I. If the plaintiffs are estopped by the general warranty contained in Frederick Steepler’s deed to defendant Silberberg in 1883, it will be unnecessary to pass upon the other contentions of the defendant. It is insisted by the defendant Silberberg that this deed was a general warranty deed and that plaintiffs as the heirs of said Frederick are estopped to deny his ownership of the property at the time of the execution of the said deed and that any title which descended to him from his mother after its execution immediately inured and passed to the defendant Silberberg by operation of law. Whereas plaintiffs assert that inasmuch as the deed only purported to grant, bargain and sell “the right, title and interest” of the said Frederick in and to said real estate, which the said Frederick had in said property, and contains the further recital that the deed was to “embrace all the interest in the aforesaid real estate that he had inherited from his father Bernard Stoepler, deceased, and devised to him in the last will and testament of his father, and such as he had inherited from his sisters and brother,” the said deed only amounted to a quitclaim and the after-acquired interest in said lot as the heir of the mother did not pass by way of estoppel, and that the general.covenant of warranty contained in the deed did not enlarge the estate granted by the terms of the deed, but will be confined to the interest which Frederick had at the time of its execution. It will be observed that the deed contains-the statutory words, “grant, bargain and sell,” which by virtue of the statute have the force and effect of covenants, that the grantor, Frederick Stoepler, was, at the date of the deed, seized of an indefeasible estate in fee simple in the premises conveyed; that the same was then free from incumbrance done or suffered by the grantor, his heirs and assigns and all claiming under him; and also for further assurance thereof to be made by the grantor, his heirs and assigns, and in addition there is a covenant of general warranty. Had the deed purported to convey the lot in controversy, there could exist no doubt that the plaintiffs would be estopped to claim the after-acquired title, if any, which the said Frederick obtained to said lot as heir of his mother, Louise Stoepler Silberberg, but while these covenants are expressed in the deed, the instrument must be read and construed in the light of all its parts and when this is done, it is obvious that it does not attempt or purport to convey and warrant the lot itself, but only, “all such right, title and interest,” that Frederick Stoepler, at the date of the deed, had in and to said house and lot in block 177 and such interest therein as he had inherited fropi his father and devised to him by the will of his father and such as he had inherited from his sisters and brother, and having restricted Ms covenants to the interest and title thus obtained, it would seem plain that the covenants cannot be extended to estop his heirs as to an after-acquired title, which he might have inherited from his mother.

So that it is essential to determine what title Frederick Stoepler had in and to said lot when he made the deed December, 1883, to defendant Moritz Silberberg. If we were to look alone to the last will and testament of Bernard Stoepler, the common source of title, it is obvious that Frederick took a fee simple in remainder subject to the life estate of his mother, and to an undivided one-fourth of said lot at the death of his father, and that by the terms of the will, owing to the death of the other three children prior to the death of their mother, and prior to the making of Ms deed to Silberberg, he had become entitled to the whole lot in fee simple, subject to his mother’s life estate in said lot, and accordingly upon the death of Mrs. Louise Stoepler Silberberg his grantee, Silberberg, was entitled to the said lot and plaintiffs were estopped by the said deed and the covenants of their father Frederick.

But plaintiffs base their right of recovery upon the assertion that Bernard Stoepler, their grandfather, had no devisable estate in said lot as to his wife and widow Louise Stoepler; that said lot was the homestead of said Bernard at the date of his death in 1867, and by the homestead statute then in force (General Statutes 1865, ch. Ill, pp. 449 to 451, inclusive), the fee simple title to said homestead “passed to and vested in his widow, the said Louise, and his minor children, the said children having an interest therein only until they should attain their majority, and that upon the death of said Louise Stoepler Silberberg, the title descended to Frederick Stoepler, the father and husband of plaintiffs, as the sole heir at law of said Louise Stoepler Silberberg, and not as devisee of his father, Bernard Stoepler, and that upon the death of Frederick in 1903, the title descended to plaintiffs as his widow and heirs at law.”

This claim necessarily required a resort to evidence to establish facts in pais, which would determine this homestead right. Accordingly plaintiffs offered testimony tending to show that prior to and at the date of the death of Bernard Stoepler, he and his wife Louise and their children were occupying this property as their homestead and it may be said this fact is conceded by defendant. Plaintiff then sought to show that said lot did not exceed in dimensions the amount of real estate which the statute allowed as a homestead and this also is practically admitted. Plaintiffs then introduced witnesses to show that said lot did not exceed in value at the date of the death of Bernard Stoepler, the homestead which the statute permitted. On this point the defendants offered testimony which tended strongly to show that said lot exceeded in value fifteen hundred dollars. It is agreed that no steps were ever taken to have a homestead admeasured and set off to said Louise, the widow, and the testimony showed that she never asserted a claim of homestead therein, but on the contrary, she caused the will of Bernard Stoepler, which devised to her a life estate in the whole of said lot, to be probated, and accepted the appointment of herself as executrix thereof and duly qualified as such, and always asserted she had a life estate only in said lot. Neither party requested the court to make a specific finding of the facts, nor were any declarations of law requested of the court, and as already said the finding was for the defendants. In this state of the record, unless this court can say that, upon the evidence, the judgment of the circuit court is so manifestly erroneous that it cannot be sustained upon any theory, the judgment must be affirmed. A vital proposition presented by this record is whether Mrs. Louise Stoepler, the widow .of Bernard Stoepler, elected to take the provision made for her in the will of her husband, to-wit, a life estate only in said property, and waived her homestead in fee therein. This question has been presented to this court in its previous decisions, and from them we deduce the following conclusions:

If the homestead did not exceed in value or dimensions that which the law gave the widow, there was no occasion to have the same admeasured and set off to her, as the statute of 1865 only required these steps to be taken when necessary. [Vogler v. Montgomery, 54 Mo. 577; Rogers v. Marsh, 73 Mo. l. c. 69 ; Bank of Versailles v. Guthrey, 127 Mo. 192; Burgess v. Bowles, 99 Mo. l. c. 548.]

On the other hand, where the husband devises property to his wife or widow greater in amount than that to which she would be entitled by law, as his widow, and she accepts the same, she cannot insist upon her homestead right, if it is repugnant to the terms of the will. [Davidson v. Davis, 86 Mo. 440.]

If there was no property on which the will would operate as against a widow’s absolute statutory rights, there would be no consideration for an election by her and the reason on which the doctrine of election rests, would fail. No formal renunciation of the will would be necessary in such case to confirm her title to the property which the law itself gave her. [Hasenritter v. Hasenritter, 77 Mo. 162.]

In Davidson v. Davis, 86 Mo. l. c. 444, it was held: “She could not take the devise and bequest under the will, and, at the same time, insist upon her homestead right. The right under the will, and that confirmed by the homestead law, were repugnant to each other, and she had to repudiate the one or the other. There is no provision in the homestead law prescribing a formal election or repudiation, similar to those to be found in the law concerning dower and jointure; but, after the death of her husband, the widow is sui juris, and her conduct in relation to her property is treated precisely as that of any other person.....The law gave her the homestead, but she had a perfect right to dispose of it. If, by his will, her husband gave her a different estate in the land from that which the law gave her, she had a perfect right to accept it in lieu of the homestead. No time is specified within which she should make her election, and she could make it immediately. Nor is any particular manner of making the election prescribed. Accepting the bequest under the will, qualifying and acting as executrix of the will, and repeatedly expressing her satisfaction with its provisions in her behalf, are sufficient to prove her acceptance of these provisions, certainly against her heirs.”

While it was said in Kaes v. Gross, 92 Mo. l. c. 659, that the decision in Davidson v. Davis, 86 Mo. 440, to the effect that the husband could put his widow to her election, should not longer be followed, still when this same question again arose in Burgess v. Bowles, 99 Mo. 543, Davidson v. Davis was reaffirmed and it was pointed out that Kaes v. Gross arose under the act of 1875, whereas Davidson v. Davis arose under the law prior to the amendment of 1875, as does the case now in hand.

Applying the principles announced in Davidson v. Davis and Burgess v. Bowles, supra, it will be seen that in many respects the facts of this case are very similar. In this case the widow accepted the provision of the will, qualified as executrix and on various occasions announced she only had a life estate in this lot. Her heirs could not now withdraw her acceptance. The right of election is not transmissible by descent. [Welch v. Anderson, 28 Mo. l. c. 298; Davidson v. Davis, 86 Mo. l. c. 444.]

The evidence was conflicting as to the value of this lot in 1867, when Bernard Stoepler made his will and died. Under the Homestead Act the homestead could not exceed $1,500 in value. The testimony on behalf of plaintiff tended to show the lot by the front foot was $8.50 or $9. We think it is fair to interpret this evidence as the value of the lot exclusive of the house. The lot was ninety-eight and one-half feet front by one hundred and fifty feet deep. On the part of the defendants the testimony tended to prove the house was an eight room brick house. One half of it was erected by Bernard Stoepler a year or two before he died in 1867. Two contractors who had lived in St. Charles prior to 1867 and knew the cost of the building testified to the price of brick, plastering, joists, lumber and painting, and another builder who had measured the house and examined it testified on the basis of the costs of building in 1867 that it would cost over $1,892, and thus at a moderate estimate the property was worth $3,000'. If the circuit court so found, it is evident that the property exceeded by $1,500 the amount the widow could have claimed. We do not know upon what basis the court estimated the value of the life estate devised by the will to the widow but if he adopted the Northampton tables, it would have been $17864, or an excess of $364 over the value of the homestead. Neither party offered evidence as to the amount of the personal estate which the widow received. But applying the rules announced in Davidson v. Davis, and Burgess v. Bowles, supra, it is evident that, if the court believed the testimony of the contractors, and there is nothing to impeach them, the property largely exceeded the value of a homestead, and the life estate therein devised to her exceeded in value her homestead right, and the evidence tended to show that she accepted the provisions made for her by the will, and she was not entitled to insist on her homestead right, a right clearly repugnant to the terms of the will. Obviously Bernard Stoepler intended she should take a life estate in the whole lot, with remainder in fee to his four children. He could not have intended she should take the lot in fee as her homestead, and all his other property, and thus nullify the provisions made for his children. We think the testimony tended strongly to show that Mrs. Stoepler fully acquiesced in the will and never made any claim of homestead in her lifetime but elected to abide by the will, as she had a right to do.

That Silberberg so understood her relation to this lot we think is fairly deducible from the facts and circumstances in -evidence. It is incredible that he would have given his stock of groceries in St. Louis to the amount of $2,400 for a worthless slip of paper, or that his own wife desired him to do so, and yet such was. the case, if we are to adjudge that his wife at that date was the owner of the fee in the whole lot. The evidence to the contrary was that she continually asserted she had a life estate only; that she caused the will to he probated and qualified as executrix thereof; that she urged her friend to get her husband, Silberberg, to trade his store in St. Louis for' the lot, subject to her life estate. If the circuit court took this view of the evidence, its judgment had ample basis. The remark of Judge Bakewell in Daudt v. Musick, 9 Mo. App. l. c. 175, a decision, by the way, in every way in harmony with Davidson v. Davis, and Burgess v. Bowles, supra, that it would be unjust to subsequent purchasers who have notice of the will and no notice of any renunciation of its provisions to defeat their titles by a claim of homestead when there has been acquiescence on the part of the widow in a testamentary provision of the husband inconsistent with the claim of homestead, is appropriate here.

In our opinion the judgment was for the right party and there is no reversible error in the record.

The judgment is affirmed.

Burgess and Fox, JJ., concur.


author: BUEGESS, J.

text:
    PAULINE SANZENBACHER v. GEORGE SANTHUFF et al., Appellants.
    Division Two,
    May 18, 1909.
    1. JURISDICTION: Tax Suit: Non-Resident: For Taxes Paid. The circuit court has jurisdiction of a suit for taxes, in which notice is given by an order of publication, against a non-resident, who at the time was the actual and the record owner; and such judgment, and the sheriff’s deed in pursuance thereto, cannot be collaterally attacked, for instance, by a suit in equity to have the tax deed set aside on the ground that there were irregularities in the allegations concerning non-residence. The fact that at the trial of said equity suit the said non-resident owner produced tax receipts showing the payment of taxes for the year for which suit was brought and judgment obtained, paid prior to the institution of the tax suit, does not show that the court did not have jurisdiction of the tax suit, and will not authorize the court to adjudge in the equity suit that the sheriff’s deed was void.
    2. -: -: Unnecessary 'Party: Husband: Former Owner. Where a married woman was the actual and the record owner, her husband was not a necessary party to the tax suit instituted prior to May 29, 1889, for the taxes for 1886; nor was the jurisdiction of the court affected by the fact that a deceased former owner who by a recorded deed had conveyed the property to another, was made a defendant.
    Appeal from Reynolds Circuit Court. — Eon. Jos. J. Willianns, Judge.
    Reversed and remanded.

      R. I. January and Binning & Binning for appellants.
    (1) The court erred in ruling that the court rendering the judgment had no jurisdiction to render to same. (2) The court erred in setting aside the deed made by the sheriff of Reynolds county to W. S. Worley, and the. quitclaim deed from the latter to appellants. (3) The blanket attack made by respondent ■upon appellant’s title is a collateral attack made upon-a deed based upon a judgment rendered by tbe circuit court, whose general jurisdiction cannot be questioned. That the circuit court of Reynolds county had jurisdiction in the suit for taxes resulting in a judgment and sale thereunder and a deed executed to the purchaser at said sale, ought not to be questioned in any jurisdiction. (4) The petition in the tax suit was in the ordinary form and contained all the allegations required by the statute. R. S. 1889, sec. 7682. The judgment rendered in said cause is in due and legal form. The execution issued thereon is in due and legal form. The deed made by the sheriff based upon said judgment is in due and legal form. (5) The court erred in permitting respondent to attack the proceedings in the tax suit, for the attack is a collateral one. No judgment rendered by the circuit court can be attacked collaterally except for the want of jurisdiction to render the same. State v. Wear, 145 Mo. 162; Lovitt v. Russell, 138 Mo. 474; Estes v. Nell, 140 Mo. 639; Railroad v. Warden, 73 Mo. App. 117; Chrisman v. Divinia, 141 Mo. 122. The deed executed by the sheriff to Worley is in due form and not attacked by respondent, except that the judgment on which it is based was void, as respondent alleges and the court below so found. The court erred in ruling that the order of publication had to be inserted the last time thirty days before the November term, 1888, that being the return term. R. S. 1879, sec. 3500; R. S. 1889, sec. 2028; R. S. 1899', sec. 581; R. S. 1879, sec. 6841; R. S. 1889, sec. 7687.

      J. B. Daniel for respondent.
    (1) Respondent being a married woman at the time of the commencement of the tax proceedings, and her husband not having been joined as a party to that suit, such proceedings were void. R. S. 1879, sec. 3468; Edmonson v. Phillips, 73 Mo. 57. (2) It cannot be successfully contended that there was any attempt to join with respondent her husband in the tax proceedings. The allegation in the tax petition as to unknown interested parties can not have any effect, since the petition was not verified. R. S. 1899, sec. 580; Quigley v. Bank, 80 Mo. 297; Rohrer v. Order, 124 Mo. 24; Myers v. McRay, 114 Mo. 378. (3) Respondent having fully and promptly done all that the law required of her, and having paid all of the taxes assessed against the land long prior to the institution of the tax proceedings, to the proper officer, could not legally be deprived of her lands by such tax proceedings. Laws 1887, p. 236, now R. S. 1899, sec. 9266. (4) The tax petition is fátally defective in that.it does not sufficiently describe the lands against which the State’s lien is sought to be enforced, and on that account it is not sufficient to support a judgment. Keith v. Hayden, 26 Minn. 212; Lowe v. Ekey, 82 Mo. 286; O’Day v. McDaniel, 181 Mo. 529. (5) A defective description in the tax petition cannot be helped or cured by a better, or even a perfect description in the taxbill filed therewith. Vaughan v. Daniel, 98 Mo. 234. (6) The tax judgment is insufficient and void for want of any sufficient description of the lands sought to be affected thereby. Vaughan v. Daniel, 98 Mo. 234; O’Day v. McDaniel, 181 Mo. .529; Lowe v. Ekey, 82 Mo. 286; Keith v. Hayden, 26 Minn. 212. (7) The order of publication was insufficient to confer any jurisdiction on the court to render any judgment in the tax proceedings, in that it failed to sufficiently describe the lands. Winningham v. Trueblood, 149 Mo. 587; Keith v. Hayden, 26 Minn. 212; Lowe v. Ekey, 82 Mo. 286; O’Day v. McDaniel, 181 Mo. 529. (8) The tax deed was null and void because not acknowledged in open court as the law required, there being no record whatever of the acknowledgment of said deed. And the deed itself, with the certificate of the clerk thereon, is no evidence of an acknowledgment where there is no such record as the clerk says he has indorsed thereon. (9) The tax deed was insufficient to convey title to both if to either of 'the tracts of land attempted to be conveyed, because it shows upon its face that the whole amount of taxes and interest for which judgment was rendered was assessed against one of said tracts without showing which one. State v. Mentz, 62 Mo. 258; Burden v. Taylor, 124 Mo. 12; Guffey v. O’Eeiley, 88 Mo. 418; Loring v. Groomer, 142 Mo. 1. (10) The said tax deed is wholly insufficient to convey the southwest quarter of section 3, for the reason that it nowhere in said deed appears that said lands in said section 3 were ever sold by the sheriff, but on the contrary it appears that the sheriff sold the lands in section 4 for $15, and that in consideration of $52 to bim paid by W. S. Worley he conveyed to said Worley the two tracts. (11) E. D. Freer having died prior to the institution of the tax proceedings, such proceedings were void as to him on that account. Childers v. Schuntz, 120 Mo. 305; Crossley v. Hutton, 98 Mo. 196; Miller Mfg. Co. v. Eaton, 81 Mo. App. 657.
   BUEGESS, J.

This is a suit in equity by which plaintiff seeks to have certain deeds to land in Eeynolds county set aside and for naught held.

Plaintiff in her petition states that she is now, and at all times mentioned in the petition was, a married woman and a resident of the State of Ohio. That on October 21, 1880, she purchased from one M. C. Parker the following-described land, situated in the county of Eeynolds, in the State of Missouri, to-wit: The southwest quarter of section 3 and the southeast quarter of section 4, all in township 31 north, of range 2 west, of the fifth principal meridian in Missouri; that the deed from said Parker to her was duly filed on March 21, 1881, in the office of the recorder of deeds of said county, and is recorded in Deed Book 11, at page 217; that plaintiff, from the date of her said purchase, has continued to he the owner and in the legal possession of all of said land, and has paid all of the taxes on the same except for the year 1892, when the taxes thereon were paid by some person to her unknown, hut without her knowledge or consent.

“The plaintiff is informed and charges the fact to he that defendants set up some title or claim of ownership in and to said lands antagonistic to the right and claim of the plaintiff, and have caused to he placed on the deed records of said county a quitclaim deed to said lands from one W. S. Worley, purporting to have been executed on the 29th day of April, 1903, hut not filed for record until the 18th day of January, 1905, and which is recorded in hook 38, at page 48, of the deed records of said county, and plaintiff avers that, the pretended title of the defendants to said land originated in a tax deed executed by R. Piles, sheriff of Reynolds county, dated May 29, 1899', filed for record June 1, 1899, and recorded in hook 21, at page 106, of the deed records of said county, which deed purported to convey said land to W. S. Worley, the grantor of defendants as aforesaid, and defendants have, thereby, the only title or pretended title to said lands adverse to the. plaintiff, who is the real owner of said lands in the fee simple.

“Plaintiff avers that said tax deed so executed and recorded as aforesaid conveyed no title, and is invalid in law; that the pretended judgment for taxes, upon which a special execution issued, by virtue of which said land was sold and deed executed was irregular, illegal, void, and of no effect as to this plaintiff and her title to said land; that there was no legal service on the plaintiff in said tax suit, and plaintiff had no knowledge thereof, or of the subsequent proceedings therein, or of the execution of the said deeds until the first day of August, 1905, when she employed counsel to institute this suit.

“Plaintiff further alleges that service was attempted to be had on her in said tax suit by publication in a newspaper published in said Reynolds county ; but she avers that such publication was illegal and void, and did not comply with the provisions of the statute in such cases made and provided; that the petition filed in said suit contained no allegation, nor was any affidavit filed in said suit containing allegations, sufficient in law to authorize a legal publication against the plaintiff as a non-resident of Missouri, so as to confer jurisdiction on said court to render any judgment therein.

“Plaintiff further avers that the taxes for the year 1886, being the year for which said suit for taxes was instituted, were paid by plaintiff herein long prior to the filing of said suit, and that no taxes were at that time due and unpaid; that the said taxes for the year 1886 were neither assessed to her nor to the patentee as required by law, although she was the record owner thereof, as hereinbefore stated.”

The petition contains the further averments: “That the petition in said tax suit was wholly insufficient to authorize the court to render any judgment thereon; that the said publication was wholly insufficient to confer jurisdiction on said court; that the ‘defendants’ pretended title dates back more than ten years before the commencement of this suit, that neither the defendants nor their grantors ever had possession of said land or ever exercised any ownership over same, and they are now barred from claiming the title thereto under said tax deed and quitclaim deed, but same constitutes a slander and cloud on plaintiff’s title thereto, which in equity and good conscience ought to be removed.”

Plaintiff prays the court to order and decree that said sheriff’s deed to W. S. "Worley and the quitclaim deed from said W. S. Worley to the defendants be set aside and for naught held, and for general relief.

The defendants’ answer was a general denial of each and every allegation and averment in the petition contained.

It was agreed by the parties, by stipulation filed, that the title to the land in question had emanated from the United States government and that both plaintiff and defendants claimed through R. D. Freer as the common source of title.

To maintain the issues on her part plaintiff offered and introduced in evidence a warranty deed, dated October 21, 1880, from M. 0. Parker and Ellen Parker, his wife, to plaintiff, conveying to her the lands in controversy, said deed being recorded in the recorder’s office of Reynolds county on the 24th day of March, 1881.

There was then read in evidence the depositioh of plaintiff, wherein she stated that she was the grantee named in said deed, and that she had not, by deed of conveyance or otherwise, transferred or relinquished her title to said premises; that she had no knowledge prior to August, 1905, of a suit for taxes against said property ever having been begun or prosecuted, or of the execution of a tax deed by the sheriff of Reynolds county conveying the property to any person; that she, through her husband, C. F. Sanzenbacher, who transacted all business in connection with this real estate for her, paid the taxes thereon for the year 1886, and that he did this by her verbal authority. She further stated that she had never had in her custody or possession a deed executed by R. I). Freer conveying the property to M. C. Parker. Plaintiff’s husband also testified that he never saw or knew anything about any deed from R. D. Freer to M. C. Parker.

Frank W. Freer testified for the plaintiff that he was a son of R. D. Freer, who died on July 21, 1884, leaving four children; that his father did not, so far as he knew, own any land in Missouri at the time of his death; that none of the heirs of his father had paid any taxes on land in Missouri, and that neither he nor any of the heirs made any claim of ownership to the land deeded by his father, R. D. Freer, to M. 0. Parker.

Plaintiff next read in evidence the record of a warranty deed, dated January 4, 1879, executed by R. D. Freer and wife, conveying the property in controversy to M. 0. Parker; also a deed of quitclaim from the heirs of R. D. Freer to the plaintiff, quit-claiming to her all their right and title in and to said property, said deed being executed November 27, 1905.

Plaintiff also introduced and read in evidence tax receipts showing that she or her husband, C. F. Sanzenbacher, had paid the taxes on said land from the year 1881 to 1905, excepting the year 1892.

Defendants on their part introduced a sheriff’s deed, dated May 28, 1889, purporting to convey said land to W. S. Worley, the purchaser thereof at a sheriff’s sale, said sale being made under an execution based upon a judgment rendered against Pauline Sanzenbacher and R. D. Freer for taxes due upon said land for the year 1886. Defendants also introduced a quitclaim deed to said land dated April 29, 1903, from W. S. Worley to the defendants.

In rebuttal, plaintiff introduced the original petition, taxbill, order and proof of publication in the suit wherein the aforesaid judgment for taxes was rendered against plaintiff and R. D‘. Freer.

The court found in favor of the plaintiff, and rendered judgment as follows: “That the judgment and execution which constituted the foundation for said tax deed were void, and that the court rendering said judgment had no jurisdiction to render said judgment, but that said deed and claims of defendants constitute a cloud on the title of the plaintiff herein to said lands which in equity and good conscience ought not to be, and the court doth thereupon order, adjudge and decree that said deed from Pauline Sanzenbaeher and R. D. Freer, by R. Piles, sheriff of Reynolds county, Missouri, as aforesaid, to W. S. Worley, and said quitclaim deed from W. S. Worley to the defendants herein, each be and they are hereby set aside and for naught held, and that the plaintiff recover of defendants her costs and charges in this behalf expended and that she have execution therefor.” In due time defendants filed a motion to set aside the finding and judgment of the court and to grant them a new trial, also motion in arrest of judgment, both of which having been overruled, defendants appealed to this court.

It is claimed by defendants that the court admitted illegal, incompetent and irrelevant testimony offered by plaintiff, which did not tend to prove any issue made by the pleadings, and that in this the court erred, as well as in deciding and adjudging that the judgment and execution which constituted the foundation for the tax deed in question were void. It will be observed that defendants fail to point out what particular evidence was improperly admitted by the court, and the objection is entirely too general. Nor do we think it material, the case having been tried by the court. As to whether the court erred in rendering judgment for plaintiff will be decided later.

Defendants insist that the court erred in holding that the court which rendered judgment in the tax proceeding had no jurisdiction of that case and that said judgment was void.

We think that the proceedings in the tax suit were in substantial compliance with the law governing the collection of back taxes upon land and the enforcement of the payment of same by suit. Most of the objections urged by plaintiff against that judgment are immaterial, and point to mere irregularities not going to the jurisdiction of the court. The court rendering the judgment in the tax proceeding, we find, had jurisdiction of the case, and its judgment cannot be attacked collaterally as is sought to be done by this suit. [State v. Wear, 145 Mo. 162; Lovitt v. Russell, 138 Mo. 474; Estes v. Nell, 140 Mo. 639; Chrisman v. Divinia, 141 Mo. 122.]

The land was sufficiently described in the tax proceeding, and the suit was in no way affected by the fact that R. D. Freer was dead at the time of the commencement of said suit, he having had no interest in the result. Mrs. Sanzenbacher was the sole owner of the land, and the only necessary party defendant. In no event could a personal judgment for the taxes have been rendered against her husband, and it was unnecessary to make him a defendant with her.

The record shows a sufficient acknowledgment of the sheriff’s deed to the land, but it also shows that the southwest quarter of section 3, township 31, range 2, was not sold by the sheriff under and by virtue of the judgment, and said quarter section still remains the property of the plaintiff in this suit, subject to its proportion of the judgment for said delinquent taxes for the year 1886. The conclusion reached makes it unnecessary to pass upon the sufficiency of the petition, but in order that it may be amended and made more definite and certain, the judgment is reversed and the cause remanded.

All concur.