text:
    SYLVIA F. FENTON et al. v. CHAS. F. FENTON et al., Appellants.
    Division Two,
    July 14, 1914.
    DEED: Delivery: To Third Person for Record: Voluntary Family Settlement. A mother, by way of voluntary family settlement, made separate deeds to her two children and to her grandchildren, covering in the aggregate all of her real estate. She delivered the three deeds to her son Fred with instructions to record them. He recorded his own, and that of his brother was afterward recorded, but that to the grandchildren he returned to the grantor, in whose trunk' it was found at her death ten years later. Held, a good delivery of the deed to the grandchildren, and, this being a case of family settlement, and the grandchildren having been minors at the time of the delivery, their acceptance is presumed, and the title passed to them.
    Appeal from Bates Circuit Court. — Ron. C. A. Calvird, Judge.
    Affirmed.

      Smith <& Chastain for appellants.
    The evidence in this case does not show that the deed to the plaintiffs was ever delivered. The attorney who presented it and before whom it was acknowledged, who was introduced-by the plaintiff, testified that after the acknowledgment he returned it to the grantor. The evidence is undisputed that she delivered the three deeds in question to her son, Fred, to be kept for her in his safe, until she called for them. The plaintiffs’ own evidence shows that she after-wards did take this deed out of the possession of her son, Fred, and that it remained in her possession and under her exclusive control until the time of her death. These facts, even if it be conceded that she made some statements during her lifetime indicating that she thought the deed had become effectual, do not show a delivery, especially in view of the advice which her attorney, Smith, gave her at the time the deeds were written, to the effect that if the deeds were destroyed at any time prior to her death without having been recorded no estate would pass. Mudd v. Dillon, 166 'Mo. 119; McNear v. Williamson, 166 Mo. 358; Bunn v. Stewart, 183 Mo. 375; Rausch v. Michel, 192 Mo. 293; Chambers v. Chambers, 227 Mo. 282; Huey v. Huey, 65 Mo. 689; Griffin v. McIntosh, 176 Mo. '392; Terry v. Glover, 235 Mo. 550.
    ' W. 0. Jacltson and Silvers & Dawson for respondents.
    The law presumes much more in favor of the delivery of deed in the case of voluntary settlements, especially when made to infants, than it does in ordinary cases of bargain and sale. Crowder v. Searcy, 103 Mo. 118; Bryan v. Wash, 2 Gilm. 568. The rule in this State has been settled by the decision that when a deed to a minor from his father is absolute in form and for bis benefit and the grantor voluntarily hands the same to the third person telling him to have it recorded, it amounts to a delivery. Crowder v. S.earcy, 103 Mo. 118; Togan v. Bass, 85 Mo. 654; Seibel v. Hig- ' ham, 216 Mo. 131. Delivery has been held good, though the grantor retained possession of the document, manual delivery not being necessary. Sneathen v. Sneathen, 104 Mo. 210; Newton v. Bealer, 41 Iowa, 334; Shanklin v. McCracken, 151 Mo. 587. In this case, the execution of the three deeds was one transaction, as in Crowder v. Searcy, 103 Mo. 119.
   ROY, C.

This is a'controversy over seventy-two acres of land. The petition is in three counts. The first count alleges that Mary J. Fenton on October 31, 1901, conveyed to the defendant George W. Fenton, seventy-nine acres of land, to defendant Charles F. (Fred) Fenton, seventy-eight and a half acres, and to the plaintiffs seventy-two acres, all particularly described in the petition, she being the owner at the time of the conveyances and reserving a life estate in said land by the terms of said deeds. The petition alleges that the four plaintiffs were all minors at the date of said deeds; that the deed so made to plaintiffs was delivered to the defendants for the use and benefit of plaintiffs and' was, at the institution of the suit, in the possession and control of the defendants, and had never been recorded. That said George W. and Charles F. Fenton and these ■ plaintiffs are the sole heirs of said Mary J. Fenton, who died in January, 1911. That plaintiffs are the owners in fee of the seventy-two acre tract. The petition then prays that the defendants be directed to deliver to the plaintiffs the deed so made to them, and that defendants be divested of all apparent title to said land and that the same be vested in plaintiffs. Then follows a prayer that said land be partitioned and sold and the proceeds be distributed among the plaintiffs. '

The second count is for partition of the same land and seeks to' charge the defendants Charles F. and George "W. Fenton with advancements equal to their share of the land in controversy.

The third count is for the purpose of quieting the title against the heirs and legal representatives of a former owner of the land. These defendants made default and judgment went against them.

At the date of the deeds the grantor, Mary F. Fen-ton, was an aged widow, with two sons, the defendants George "W. and Charles F. (Fred) Fenton. These four plaintiffs are the children of her deceased son, Philip C. Fenton. She was living in the house on the tract in controversy. That tract was to some extent less valuable than each of the other two tracts men tinned. She went before Mr. Smith, as her lawyer, and had the three deeds prepared. She signed and acknowledged them and took them home with her. Shortly afterward she handed them to her son Pled. Concerning that transaction Fred testified as follows:

“I recall the circumstance of mother turning over to me a deed to the seventy-two acres in question; I think this was in 1902 and was at her home. I was at her house on a visit. She asked me to come and go in the bedroom with her. I went in there and she gave me these three papers. She says, ‘You have a safe at the store, haven’t you?’ I says,‘Yes, ma’am.’ She says, ‘You put them in your safe and keep them until I tell you what to do with them; keep them there for same keeping,’ she says. I done exactly what mother told me to do — put them in my safe in my store, and they were never touched from the time she gave them to me until the time she called for them, which was something like, a year after, that. I asked her what the papers were when she gave them to me and she says, ‘You can read them as you go home and see.’ She afterwards called for these deeds at my house. I took them out of the safe and handed them together to her just as she gave them to me to keep for safe keeping. She handed me my deed back and says, ‘Fred, here is your deed; you can do as you please, with it,’ and she told me to tell George to do as he pleased with his, that he could have his, and she gave back to me George’s deed. She did not give back to me the deed to the land in controversy, but took it with her. I have never.had possession of that deed from that day until this, and, furthermore, since the time of the conversation she made to me at the time she asked for the deeds back, she says, ‘This deed I am ¡going to change’ — that was the deed for the seventy-two acres. She said, ‘If you will be the administrator for these heirs I can fix it up some way at their death it will go back to the Fenton estate; I will do that; but otherwise they cannot have it.’ I said ‘Do just as you please, ma, about it,’ but I told her I wouldn’t under any circumstances be their administrator. She says, ‘ Then they will not get it. ’ By George’s instruction I sent George’s deed to W. W. Graves for record. I sent it through the mail. I do not remember whether he sent it back to me or to George. ’ ’

George W. Fenton testified as to the deed to plaintiffs, as follows:

“I went with my mother to Adrian at the time she signed and acknowledged the deed to the plaintiffs before A. J. Smith. She afterward told me she had given this deed to Fred to keep for her until she called for it. I do not know the exact date when it was returned to her, but I guess from what she told me it was something like a year and a half later. I afterwards saw this deed among some of her other papers in the drawer of her dresser in her house. It remained there in the house five or six years. She and I cleaned out the dresser drawer, as the mice had eaten up part of the papers there, and I, by her instruction, put it in a trunk that she bought from Pete Alexander. This deed remained there in the trunk during her life and until after her death. I never had the custody or possession of that deed. During her lifetime my mother, on different occasions, remarked that she thought the children didn’t treat her right; that they ' didn’t care nothing for her, only for what she had, and they wasn’t going' to get it.”

The deed to Fred was recorded February 3, 1903, and the one to George on February 7, 1903.

At the time of the execution of these deeds and for three or four years afterward, James C. Fenton and his wife lived in the same house with the grantor. He was her step-son, and the half-brother of her children. Mrs. James 0. Fenton testified that the grantor told her that she had given all the deeds to Fred to be recorded, but that he only had his own recorded, and that she didn’t know it until George came; that George saw in the paper that Fred’s deed had been recorded, and came to his mother to see why Fred’s deed only had been recorded, and that the grantor had told George that she thought Fred would have them all recorded, and that he could have his deed re-, corded. James C. Fenton testified as follows:

“Emily Fenton, Phil’s widow, came to the house quite frequently, and so did the other brother, George, and it seems that ma had turned the deeds over to Fred ‘ to have them all recorded, that was the impression I got from their talk, and from the way the thing was done; Fred had his recorded and return the other two. After George discovered that his deed had not been recorded he came to see about it, and she went to Fred and got the deeds back and turned them over to George and George had his recorded and didn’t have the third one recorded. So Emily then came to inquire in the interest of her children, came to grandma, and ma talked to my wife and me frequently about it, and to me especially. . . . Emily would come right down after ma once or twice a month, possibly, and she would say, ‘I am feeling had and Emma disturbs and worries me about that old paper, and I wish she didn’t talk to me about it. I have fixed it to suit myself, and I am going to have those children, Phil’s children, safe.’ She says, ‘I know Phil’s children haven’t their share and there won’t be any trouble about it, and I assured Emma of that.’ She refused to turn the deed over to Emma; I supposed she had it. She said, ‘I will have it attended to; I will turn it over to you.’ The deed was evidently in the house. George was there most of the time himself. I heard these conversations with Emma after George’s and Fred’s deeds had been recorded, and she assured her every way she could that she would have it done right and that she wasn’t going to turn it over to her now. She said, ‘I haven’t got any too much confidence in the Powells. She is a young widow and might marry again and those children he heat out of it. ’ She told me she had taken the children’s deed away from Fred and she was going to have it attended to by someone else. These conversations were while I was living there, since which time I know nothing about the matter. ’ ’

The deed to plaintiffs, after the grantor’s death, was found in her trunk at her home. ' She left a will executed December 10, 1910', in which she gave the plaintiffs a dollar each, and gave all the residue of her personal property to the two sons. The will made no mention of real estate.

The grantor delivered all the deeds to Fred. He testified that they were to be kept by him for her. He stands alone in that statement. The facts show the contrary; James C. Fenton and .his wife, inmates of the mother’s home, testified that she stated that the deeds were delivered to Fred for record. Fred did put his on record. Such fact was published in the papers. As a result George went to see his mother about it and his deed was sent to record. Later on the mother of the plaintiffs became importunate about the deed to them. The grantor had talks with Fred in which the subject was discussed .as. to changing the deed so that at the death of the plaintiffs the land would go back to the Fenton estate. We need not conclude that Fred was responsible for a change in, the •mind of the grantor, if there was a change. It is sufficient to say that a great preponderance of the evidence shows that the grantor delivered all these deeds to Fred to be by him placed on record. As late as 1910', she made her will which shows that she was unconscious of having any real estate to dispose of. Even if she did undergo a change of mind after delivering the deeds to Fred for record, and did get possession of the deed and refuse to deliver it to the mother of plaintiffs or to put it on record, that fact does, not destroy the legal effect of the previous delivery to Fred for record.

In Crowder v. Searcy, 103 Mo. l. c. 118, it was held that the law presumes much more in the case of voluntary settlement, especially when made to infants, than it does in ordinary cases of bargain and sale. In that case the grantor signed and acknowledged a deed to his grandchildren and handed it to a third party to be recorded and gave him the money for that purpose. The court said: “When he did this, we hold that the first deed was fully delivered and the title passed to the defendants, even though there was a misdescription. A court of equity would have corrected the description. Equity regards that as done which ought to be done.”

The fact that the grantor gave the third party the money to record the deed does not make any difference. When Mrs. Fenton handed the deeds to Fred to be recorded, if she did not furnish him with the money to pay for recording them, his acceptance of the duty was equivalent to an undertaking to have them recorded.

In Standiford v. Standiford, 97 Mo. l. c. 239, it was held that each ease must stand on its own peculiar facts, the court saying: “It is sufficient, if, after the grantor has signed, sealed' and acknowledged the deed, he makes some disposition of it from which it clearly appears that he intended that the instrument should take effect as a conveyance and pass the title.”

This being a case' of family settlement, and the grantees being minors at ° the time, their acceptance of the deed will be presumed.

In our opinion the judgment and decree entered on the first count disposes of the controversy in the second count, and the judgment is in all particulars affirmed.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE v. FLOYD TAYLOR, Appellant.
    Division Two,
    July 14, 1914.
    1. VERDICT: Using Word Information Instead of Indictment. Where the jury in their verdict say they find the defendant guilty “in. manner and form as charged in the information,” whereas he was tried under an indictment preferred by a grand jury, the mistake of using the word “information” instead of the word .“indictment” is not error. The rights of the defendant are not prejudiced by such mistake.
    2. -: Two Defendants: Joint Verdict: Irregularly Worded. Where two defendants are jointly indicted for the same murder and jointly tried, a verdict reading, “We, the jury, find the defendants guilty in manner and form as charged in the information and assess their punishment at life inprison,” violates the express letter of the statute (Sec. 5252, R. S. 1909) which says that when several defendants are jointly tried their punishment shall be assessed separately and not jointly; and it is also imperfect and irregular in that it assesses the punishment at “life inprison.” But such a verdict is tantamount to a general verdict of guilty, which fails to assess any punishment, since the punishment is erroneously assessed. In such case it is competent for the court' himself to assess the punishment at ninety-nine years’ imprisonment in the penitentiary, as he is authorized by statute to do (Sec. 5254, R. S. 1909), instead of at life imprisonment, as the jury evidently attempted to do. . Under such circumstances; the verdict is not reversible error, although the court subsequently granted a new trial to appellant’s coindictee, and thereafter he was discharged upon a nolle prosequi.

      3. MURDER: Statement of Coindictee: Failure to Instruct: Collateral Matter. Where two defendants are .jointly indicted and tried for the same murder, it is not error for the trial court to instruct the jury in behalf of appellant that any statement made by his coindictee is not binding upon appellant, (1) if there is no evidence of any statement having been-made by said coindictee which tends to connect appellant with their joint case, or (2), even if there is such testimony, unless appellant requests such an instruction, since the matter is a collateral one and is not strictly within the purview of section-5231, Revised Statutes 1909.
    4. -: Instruction: Wrong Date of Deceased’s Death. Where deceased was found dead on August 8, 1910, and defendants were tried in December, 1912, an instruction telling the jury that if they find and believe that “at any time prior to the filing of the indictment” defendants did strike and beat deceased with a heavy iron bar, “and that within a year and a day thereafter, to-wit, on the —— day of August, 1912, he died from the effects of such striking and beating,” they should find the defendants guilty, contains only a clerical mistake in stating the date of deceased’s death as “on the- day of August, 1912,” which is without substance, since the jury are expressly required to find that deceased died within a year and a day after he was assaulted, which cures the palpable clerical error of 1912, and besides, since it is a murder case, it is wholly unimportant when the prosecution was begun, if deceased died within a year and a day after he was assaulted.
    5. -: -: Defendant’s Failure to Testify: Refusal of Instruction Not to Consider. It is not reversible error to refuse an instruction asked by defendant to the effect that the jury are not to consider as • any evidence of his guilt or innocence the failure of defendant to testify in his own behalf. [Following State" v. Robinson, 117 Mo. 649.] Neither is it error for the trial court to give such an instruction. [Citing State v. DeWitt, 186 Mo. 61.] And it would perhaps be a little fairer to defendant to give such an instruction, if he asks it; but in view of the dark and muddy language of Sec. 5243, R. S. 1909, and the holding, in the Robinson case, it cannot be held to be reversible error not to give it.
    6. NEW TRIAL: .As to One Defendant: Not as to Other. The granting of a new trial to one of two defendants, jointly indicted and jointly tried and jointly found guilty by the same general verdict, is not ipso facto a granting of a new trial to the other.
    7. -: Sufficiency of Evidence: Where it Might Properly Have Been Granted. Although the Supreme Court may be of the opinion that the trial court, in view of the evidence, should have granted to appellant a new trial, it'Will not on that ground hold that the trial court committed error if there is substantial evidence of defendant’s guilt. The Supreme Court has nothing to do with the credibility of the evidence; its weight and credibility are for the jury, and if their verdict meets the approval of the trial judge the Supreme Court, although the strange fact that the State’s main witness is accused’s own sister and tlie deceased was to her unknown may challenge attention, cannot compel a new trial on the theory that her testimony is contrary to human experience, her testimony being substantial and if true showing defendant’s guilt, and bearing the earmarks of verity, and there being no showing of' enmity or unfriendliness on her part for accused, and nothing in her manner of testifying or conduct from which either could be inferred.
    Appeal from Franklin. Circuit Court. — Hon. R. A. Breuer, Judge.
    Affirmed.

      Frank A. Habig and David W. Breid for1 appellant.
    (1) It was error for the jury to return a joint verdict. State v. Person, 234 Mo. 262. (2) The court erred in not instructing the jury that the statements made by Taylor would not bind Hoffman, and the statements of Hoffman would not bind Taylor. R. S. 1909, sfec. 5231; State v. Bidstrup, 237 Mo. 385.’ (3) The alleged verdict, as returned by the jury, is absolutely void and no verdict at all. (4) Since there was a joint indictment, a joint trial, and a joint motion for new trial, and since the defendants were charged as committing the crime jointly and together, the sustaining of the motion for new trial as to one sustains -the motion as to both. Hoborn v. Naughton, 601 Mo. App. 100. (5) The indictment charges that the murder was committed August 8, 19101, and the instruction as given by the court on the part of the State instructs the jury “that if they believe and find from the evidence that the defendants at any time prior to the finding of the indictment herein . . . did strike and beat, . . . and that within a year and day thereafter, to-wit, on the-day of August, 1912, he died,” etc. It was error for the court to instruct the jury to find, that the killing took place on the--day of August, 1912. (6). It was error on the part of the court to refuse to give defendants’ instruction to the effect “that the fact that the defendants did not testify in their behalf is not to be accepted by you as any evidence of the guilt or innocence of the defendants.” (7) The verdict is against the evidence and the weight of the evidence, and-the court erred in overruling defendant Taylor’s motion for new trial.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) Under Sec. 5252, R. S. 19091, when defendants are jointly tried the punishment of each in case of conviction must be assessed separately. The jury in the ease at bar failed to assess separate punishments, but the cases hold that the verdict is a legal and valid verdict of guilty and the punishment not being assessed, under Sec. '5254, R. S. 1909, the court may fix the punishment. A new trial was granted the codefendant, Hoffman, and a separate sentence was given the appellant, Taylor, in accordance with the verdict returned. State v. Gordon, 153 Mo. 576; State v. Thornhill, 174 Mo. 364; State v. Person, 234 Mo. 262. (2) The fact that the word “information” was used instead of the word “indictment” is in no way ■prejudicial to the appellant. The verdict would have been proper in form had the word information been omitted and the defendants simply found guilty “as charged.” In other words, the word “information” can be considered as surplusage. (3) It is contended that the court erred in refusing to instruct the jury to the effect that statements made by Hoffman would not bind Taylor. The record does not disclose that any such instruction was requested or suggested by the appellant, although some other instructions were requested. There is not even a general specification in the motion for new trial that the defendant failed to instruct on all the law in the case. Under these circumstances the failure of the court to instruct as to the statements made by the appellant and Hoffman was not error. State v. Conway, 241 Mo. 291; State v. Dockery, 243 Mo. 599; State v. Sykes, 248 Mo. 713. (4) The particular date of the assault and death was unknown. Pattison on Instructions in Criminal Cases, sec. 610; State v. Brassfield, 81 Mo. 151; Kelly’s Crim. Law & Pr. (3 Ed.), sec. 184; 1 Hawkins, ch. 23, sec. 90; State v. Sides, 64 Mo. 383. (5) A refusal to give an instruction to the effect that if the accused party failed to testify such failure shall not raise any presumption against him, was not error. State v. Robinson, 117 Mo. 663. It was later held that it was not error to give such an instruction. State v. DeWitt, 186 Mo. 61. This last case finally held that it was unnecessary to give the instruction, but it was not reversible error to do so, as it was not prejudicial to the defendant. Under this opinion the trial court might have favored this appellant by giving the instruction, but the refusal so to do was not error. (6) There are many strong- facts in the case that point to the appellant’s guilt, namely, positive identification of appellant as being with the deceased in Pacific, the testimony of his own sister concerning conversations had with the appellant which related to the crime, and the statements made to the police officers in St. Louis. The' record does not show any passion and prejudice and the jury was better able to determine what the proper verdict should be, after hearing the evidence, and noting the demeanor of the witness on the stand, and discerning what was truthful and untruthful as it came from.their mouths, than this court would be.-
   FARIS, J.

Defendant was convicted in the circuit court of Franklin county of murder in the second degree, for that, as it was charged in the indictment, he and one Jake Hoffman at the town of Pacific in said county on the 8th day of August, 1910', killed an unknown man. Both defendant and Hoffman being found guilty defendant herein was sentenced to imprisonment in the penitentiary for a term of ninety-nine years, from which sentence he has, after the usual motions, perfected this appeal. Hoffman was granted a new trial upon his motion to that end, therefore so far as the law of this case is concerned and except only as the facts in the testimony may make necessary references to him, he falls out of it.

The trial of defendant was concluded on the 20th day of December, 1912. On the next day thereafter he filed his motion for a new trial and his motion in arrest. The trial court continued these motions-until January 10, 1913, at which time leave was given defendant to file affidavits in support of his allegation of newly discovered evidence, and the motions aforesaid were held by the court under advisement until the 13th day of March, 1913, at which time the court overruled them and this appeal followed.

The points which are ur,ged upon us as error by defendant render necessary a statement of the facts as we glean them from the voluminous evidence in the case. The deceased, whose name was to'the jury which preferred the indictment unknown and who continues yet to be unknown, came into the town of Pacific, in Franklin county, on a train from St. Louis on Sunday, August 7, 1910, at about two o’clock in the afternoon. He inquired of the railway agent at Pacific touching the time at which he could get a train either for Cuba or Rolla, Missouri, and was advisee ’ that he. could .get such train at about the hour of three o’clock and thirty minutes. He asked permission to leave and did leave his suit case with the agent. Thereafter the deceased was seen by a negro, William Yancey, who was a witness in the case, in company with two men, who are -identified by said Yancey as the defendant Floyd Taylor and the said Jake Hoffman. This witness Yancey saw the dead man, together with the defendant and Hoffman going into a saloon at Pacific. Yancey further says that defendant, Hoffman and the deceased went over.to a hotel at Pacific and that he saw the deceased sitting on the porch of this hotel in a chair, and that defendant and said Hoffman walked down the track of the Frisco railroad and he heard either defendant or said Hoffman say they would get the grip and would thereafter he ready. Later this witness, Yancey, saw the taller one of the defendants Hoffman and Taylor with a brownish grip. The evidence does not disclose clearly which of the two, whether Hoffman or Taylor, was the taller, but by inference it appears that the defendant was the taller man to whom the witness referred.

The above in substance is the testimony of the negro William Yancey upon his examination in chief. It is but fair to say that upon his cross-examination his testimony becomes uncertain and obscure and upon many points so rambling as to create thick doubt as to its credibility, touching which we shall have more to say when we come to express our views upon the case.

The State offered two colored women who were employees of the Wunderlich Hotel, at which hotel deceased is said by some of the witnesses to have eaten his dinner and supper and at which he is also said to have engaged a room. Beyond the fact that one of these negro women, called in the record Pinkie Lew-right, claims to have seen one of the defendants eating dinner at this hotel with the deceased, the testimony of neither of these witnesses throws any light upon the case or affords any aid in the solution of the mystery, save it may be that one of these women says that the bed in the room said to have been assigned to deceased bore no evidence of having been slept in.,

The city marshal and constable at Pacific, one Ignatz Zieger, testified that on the night of August 7, 1910, lie saw three men go behind a box car in the railroad yards, at a distance of about a half a block from the place at which the body of the deceased was after-wards found. Neither of these defendants nor the deceased man was identified by the marshal as being either of the three men whom he saw in the vicinity of the place of the subsequent homicide.

On the following morning, August 8,1910, at about eight or nine o’clock, the deceased was found dead in the westerly part of the railroad yards at Pacific in a small creek which runs through these yards. His body was lying in the mud and water of the creek, which was at this point only some two or three inches in depth. The body was partially concealed by some telephone poles or piling which were at this point laid across the creek and under which the body of deceased had been rolled or thrust, while resting upon his body was a wide and thick piece of timber, some five feet long, called by the witnesses a “stringer.” There were wounds upon the face of the dead man and his skull was found to be crushed in at the back thereof, as though with a heavy three-cornered weapon. Large pools and spots of blood were found between the railroad track and a fence in the vicinity, together with marks upon the soft ground nearby as if a number of men had engaged there in a struggle. There was blood, not only upon the fence and ground, but upon a peach tree in the vicinity and blood from the shoes of persons who had made bloody footprints on the telegraph poles, apparently in crossing the creek. The pockets of the deceased were turned inside out and one of his shoes, the witness Zieger says his left one, had been taken off. Near the body and some five feet distant therefrom an iron rod, about three quarters of an inch in diameter and a foot long, was found, also near was a heavy wooden club. At the end of this rod there were two iron nuts, forming a weapon which, with the nuts, weighed some three pounds. On the end of the rod and on the nnts thereon, and upon the wooden club, blood and hair resembling the hair of deceased, were found.

A,witness for the State, one Rachel Caveness, a girl some thirteen years of age, testified that on Sunday afternoon preceding the finding next morning of the body of deceased, defendant and Jake Hoffman were together at the house where the witness Rachel Caveness was staying and borrowed from her sister a torch with which to light a cave into which defendant and Hoffman desired to go. She further testified that some little time thereafter defendant returned this torch to them. She identifies, in a fairly conclusive way, both the defendant and said Hoffman. Neither is her testimony at all seriously shaken by the rigid cross-examination to which she was subjected.

The defendant was arrested a little more than two years after the dead man was found. His arrest was effected at Duquoin, Illinois, by the deputy constable of Pacific, one Deatherage. Deatherage brought the defendant back to Franklin county, and on the way back held him for a time in jail at St. Louis. While in jail at St. Louis and in the presence of Assistant Chief of Detectives Schmidt and Officer Fleming and of the witness Deatherage he made a voluntary statement relative to the charge against him, to the substance of which all three of the above named witnesses thereto, who testified in the case, practically agreed. He said, according to these three witnesses, that he and Hoffman had fallen in with the dead man in the mid-way of the Union Station at St. Louis on August 7, 1910; that they all went together to Pacific. That after reaching. Pacific they went into a saloon and got some drinks and then went to the house of a man by the name of Bridges, whence they procured a bucket of beer, but that at seven o’clock in the evening of August 7, defendant, as he says in his said statement, caught a train to Washington, Missouri, and left Hoffman and deceased on the station platform at Pacific. Defendant further stated that he remained in "Washington a couple of days and then returned to St. Louis, and that in St. Louis shortly after his return, he met Hoffman- on Market street, near Twentieth, and was asked by Hoffman whether he (defendant) had heard about that fellow being killed at Pacific. Taylor then asked how he was killed and Hoffman informed him that he was killed with an iron bar; whereupon Taylor said to Hoffman, “I guess you pulled off the job, didn’t you?” and Hoffman replied, “There you go again, you are always accusing me of things I didn’t do.”

The State also offered as a witness Mrs. Annie Gasperson, a sister of the defendant Taylor. She testified that at the time of the homicide she lived at Washington, Missouri, and that in September thereafter she first met Hoffman át Washington. Hoffman had come to Washington with defendant Taylor and with a brother of defendant and of the witness, one Redmon Taylor. Hoffman, the 'defendant and Redmon Taylor remained in Washington for several days and Hoffman told the witness that he and defendant had been “bumming” together for some three or four months. Defendant also said he had been “bumming” with Hoffman about three or four months.

This witness, Mrs. Gasperson, further says that in May, 1911, she visited her mother, who is likewise the mother of defendant, at Tamaroa, Ill. Floyd Taylor was also there at the same time. A conversation occurred there, says Mrs. -Gasperson in her testimony, between her and the defendant, in which defendant asked her if she had heard of the man that got killed at Pacific and the manner in which he got killed. Mrs. Gasperson replied that she had not heard and did not know how he got killed, whereupon defendant said, “Well, I do. He was killed with an iron rod and the rod thrown across the railroad from him. I seen the man after he was murdered. They got right smart of money ont of Ms right shoe and they didn’t take off his left shoe-.” Mrs. Garperson then said to defendant, “Well, you know so much about it you must have been in it.” Defendant looked at her, laughed and said, “I and my pal came out from St. Louis on the train with him and had a chat with him, and we came back to St. LoMs that Mght.” According to tMs witness she a;gain upon a subsequent visit to her mother at Tamaroa, in September, 1912, had a conversation with the defendant in wMch further reference to the killing of tMs unknown man was made, and in which defendant said to the witness that he understood that a reward had been offered for the murderers, but upon being asked how he learned tMs was unable to state very readily the source of his information touching tMs reward; thereupon the witness, Mrs. Gasperson, said to him, according to her testimony, “You know you are lying,- for you told me you had seen the man after he was murdered, and that they got right smart money out of his right shoe, but they didn’t take off his left shoe.” Defendant, she says, then said to her that there was not enough money to get him to go back to Pacific and that there wasn’t enough officers to take him back, unless they took him back on a stretcher. The witness then asked him, “Well, what are they after Redmon for, too?” Defendant replied, “They are not after Redmon, they are after me.”

This witness was cross-examined at great length by the defendant, but she was not shaken in any material respect. She was not asked as to whether her feelings were friendly or unfriendly toward the defendant, and we are left to infer this fact from a careful consideration of the whole trend of the testimony she gave. She explains how she came to tell the deputy constable Deatherage of the conversations she had with defendant and which conversations she related on the trial. She did not tell Deatherage, it seems from her testimony, until the fact of her having in her possession information tending to the solution of this murder mystery, had, as she expressed it, “leaked out through the family.” The manner in which this leaking occurred is to be gathered from the whole testimony, thread by thread. One McGraw, connected, as was Deatherage, with the railroad as an employee thereof in some, capacity, became the son-in-law of Mrs. Gas^ person and from him Deatherage learned that Mrs. Gasperson knew facts touching this homicide which might lead to its solution. Deatherage thereupon went to Mrs. Gasperson and by threats practically compelled her to give him the inforn^ation which she related subsequently on the witness stand. Much other testimony was adduced on the part of the State, but in our view of the case it is not pertinent in solving the troublesome question as to the sufficiency of the testimony to sustain this conviction.

Defendant did not take the stand in his own behalf, neither did his co-indictee Hoffman testify in the case, though they were tried jointly without a severance. Defendant undertook to prove an alibi in that he endeavored to show that he went to work on August 8, 1910, at eight o’clock in the morning, for the St. Louis Dressed Beef Company. This proof, granting its absolute verity and blinking the fact that it contradicts the extra-judicial statements of defendant himself, is of no probative force for the reason that it is not inconsistent in anywise with the theory of the presence of defendant at Pacific during practically the whole of the night of August 7,1910'. So much we say in explanation of the omission of the details of this proffered alibi.

Defendant also offered as a witness in his behalf upon the matter of an alibi, Mrs. Hunter, operator of a hotel and restaurant in St. Louis, at which defendant came to board on July 6, 1910, and which he left on September’16th thereafter. This witness offered her book which seemed to bear out her statement that the defendant was at her hotel constantly between the dates mentioned. She would not deny, however, that defendant might have missed a meal or even two meals at her house without her knowing it and without her noting it in the book which she kept and by which she refreshed her memory as to the facts about which she testified. Upon the whole the proof of an' alibi of defendant is in no sense conclusive and in no sense convincing. In passing we might say, though Hoffman is now out of the case, that the alibi proven on his behalf was a perfect one, if the jury had chosen to credit it.

At the close of all the testimony in the case defendant offered an instruction in the nature of a demurrer to the‘evidence, which was by the court overruled and exceptions to the action of the court in that behalf properly saved.

Defendant asked the court to give in his behalf the following instruction touching defendant’s failure to testify, to-wit:

“The court instructs the jury that the fact that the defendánts did not testify in their behalf is not to be accepted by you as evidence of the guilt or innocence of the defendants.”

The court gave on the part of the State, among other instructions, one touching which defendant complains. The part of such instruction at which the point made by him is directed, and which fully explains said point, is as follows:

“Bearing in mind these definitions the court instructs the jury that if they believe and find from the evidence that the defendants, Floyd Taylor and Jack Hoffman, in the county of Franklin and State of Missouri, at any time prior to the finding of the indictment herein, willfully, deliberately, premeditatedly and of their malice aforethought, did strike and beat, with a heavy iron bar, one unknown man, and that within a year and a day thereafter, to-wit, on the --day of August, 1912, he died from the effects of such striking and beating, they will find the defendants guilty of murder in the first degree, and assess their punishment at the death penalty, or by imprisonment in the penitentiary for a • term during' their natural life. ’ ’

The jury returned a verdict finding both defendant and Hoffman guilty, and as the verdict rendered by this jury is attacked both for matters of form and substance, we set it out in full, so as to show in definite detail the alleged defects and the form of the criticism made against it by defendant. This verdict is as follows:

“State of Missouri v. Floyd Taylor and Jack Hoffman.

“We, the jury, find the defendants guilty in manner and form as charged in the information and assess their punishment at Life inprison.

“C. A. Cuno,

Foreman. ’ ’

After some weeks spent in considering the motion for a new trial of defendant and of said Hoffman, the court, as stated, sustained said motion as to Hoffman and granted him a new trial, and as to defendant overruled his said motion, and thereupon, treating the verdict rendered by the jury and set out above as a mere general finding of guilty without any assessment of punishment, the trial judge of his own motion fixed the punishment of defendant at imprisonment in the penitentiary for a term of ninety-nine years, and rendered judgment accordingly.

The above statement of facts and of the substance of the testimony of the several witnesses whose evidence is pertinent, is deemed sufficient to make clear the points made by the defendant and the points discussed by us in the subjoined opinion. ’

I. A number of reasons áre urged upon us as bases for a reversal of this case. Among these (a) that the verdict of the jury being joint, is for that reason erroneous ; (b) that the court erred in failing to instruct the jury that the statements of Hoffman would not bind defendant; (c) that the verdict for bad form is absolutely void; (d) that the erroneous statement of an instruction for the plaintiff that deceased died August --, 1912, is fatal error; (e) that the court erred in not instructing the jury that defendant’s failure to testify in his own behalf should not be accepted by the jury as any evidence of either guilt or innocence, and (f) that the evidence is not sufficient to sustain the verdict. These in their order.

Points (a) and (c) being germane each to the other in that, they both deal with the verdict, either as ^orm or substance, may be considered together. An examination of this verdict shows that it is in several respects informal and contains . mistakes of fact. The defendant Taylor and his co-defendant were jointly tried upon a joint indictment regularly preferred by the grand jury and not upon an information as the instruction improperly recites. Is this plain clerical mistake an error? We think not. All men who are sufficiently intelligent to serve as trial jurors know that there are now in this State two methods of preferring felony charges and that the one or the other of these methods is used, according to the convenience or necessities of the case, and according as- the expedition of the trial may dictate. The jurors were not in any way misled and if they had been in fact under the impression throughout the trial that the charge had been brought by information rather than by indictment, it is yet impossible to see wherein defendant was hurt. For it may well be that more of weight and legal verity attaches to an indictment found by a jury of twelve of defendant’s fellow-citizens than attaches to an information filed by only one person. .

Upon another phase of alleged error in this verdict, our attention is called to the statute which provides that when several defendants are jointly tried their punishment shall be assessed separately and not jointly. [Sec. 5252, R. S. 1909.] This verdict clearly violates the express letter of this statute. It is also imperfect and irregular in that it assesses the pun- • ishment at “life inprison.” It does not help or hurt it that defendant’s co-indictee, Hoffman, though found guilty with him, was afterward granted a new trial and ultimately discharged upon a nolle prosequi. But the learned trial court took the view that notwithstanding-the assessment of a joint punishment and the irregularity in the form of the verdict, yet in law it was tantamount to a general verdict of guilty, and a failure to assess any punishment, since the punishment was erroneously assessed. [State v. Gordon, 153 Mo. 576; State v. Thornhill, 174 Mo. 364.] Therefore, the court himself fixed defendant’s punishment at ninety-nine years ’.imprisonment in the penitentiary, as under the statute he was authorized to do (Sec. 5254, R. S. 1909), instead of life imprisonment, as the jury plainly tried to do. We disallow this point to defendant, since the cases last cited settle it, under the facts here, against his contentions.

II. Upon the objection that the court committed error in failing to instruct the jury that the statements made by Hoffman would not bind this defendant, we find two serious reasons for . . not entertaining it: First, there is not in the record any such statement coming from the lips of Hoffman either about their joint case or about this defendant Taylor’s connection therewith, save and except the alleged statement of Hoffman that he and defendant had been “humming” together three or four months, and the record shows defendant said the same thing himself; second, if there had been such testimony, it was defendant’s duty to request this instruction, since it is not a matter strictly within the purview of section 5231 (State v. Weinberg, 245 Mo. l. c. 575; State v. Douglass, 258 Mo. 281), but one of the many collateral questions which arise in the trial of a law suit, having to do with the applicability of an alleged part of the testimony, which was of itself competent and binding upon one of the joint defendants. We think that both on the facts and the law this contention should be overruled.

III. Defendant complains that the merely clerical error in the first instruction given by the court wherein the jury are told that if they find and believe “that within a year and a day thereafter, tow^, 011 --day of August, 1912,” the deceased died, they should find defendants guilty. The alleged vice is that since the proof all showed that deceased, was found dead on the morning of August 8, 1910, the clerical mistake in the said instruction whereby the date of his death was stated as August ——, 1912, is fatal. This is a palpable slip of the pen. There might be more of substance to the contention if it were not a fact that the jury were also in this instruction expressly required' to find that the deceased died “within a year and a day” after he was assaulted. This so fixes the date of death and so clearly cures whatever of error there might or might not be in mistakenly writing the date of the trial in lieu of the date of the alleged crime, that we need not further discuss it. The more so, since there is no Statute of Limitations barring a prosecution for murder, and if the dead man died within a year and a day thereafter as a result of the murderous assault on him, .it is sufficient without regard to the date at which a subsequent prosecution may be instituted.

IY. The contention made that it was reversible error to refuse defendant’s offered instruction that the jury should not consider as any evidence of guilt or innocence the failure of defendants to testify in their own behalf, is a little more serious. If the matter were of . . . . first impression, I should, m view of the hazyness and ambiguity of section 5243, which says in substance that the failure of accused to testify for himself shall not be construed to affect his guilt or innocence, nor raise any presumption of guilt, nor be referred to by ¿my attorney in the case, nor be considered by the court or jury before whom the trial takes place, be forced to the view that since, it is the duty of the court to instruct “on the law of the case,’'’ and since this solemnly enacted statutory presumption is a part of the law of the case, and since the jury get the law in all law suits (except libel and slander suits), from the court; they ought to be told of the law in this statute, when the facts, as here, fully warrant. As forecast, it is a little difficult to find out precisely what the above section means. It is ambiguous and in a. way “steps upon its own feet,” in this, at least, that while it says that defendant’s failure to testify shall not be construed to effect the innocence or guilt of the accused, in the very next clause it forbids the matter of defendant’s, failure to testify to be even considered by either trial court or trial jury. Be this as it may be, it has been said that it is.not error to refuse to ¡give this instruction. [State v. Robinson, 117 Mo. 649.] If the lawmakers intended that the jury should, in a proper case, be instructed not to consider such failure of defendant to take the stand as a witness for himself, as affecting in anywise his guilt or innocense, it would have been just as well to omit the clause forbidding such consideration. Nevertheless, stare decisis, and we see no reason to take a backward step, when so many forward steps are being demanded as things of crying need.

On the other hand, an instruction given by the court sua sponte over defendant’s objections, to the effect that the jury should not consider the failure of defendant to testify in his own behalf as. affecting his guilt or innocence, has been held not to be error. [State v. DeWitt, 186 Mo. 61.]

It follows that upon authority, we must disallow this contention, with the suggestion that in a proper case, it would seem a little fairer to the defendant to give this instruction if he wants it, until such time as the Legislature may see fit to clarify the present dark and muddy language of the section under discussion.

V. We come-next to consider. whether the evidence adduced upon the trial was sufficient to sustain the conviction of this defendant. The learned trial court properly held that it was not sufficient to prove Hoffman’s guilt and as to him sustained a motion for a new trial. The point made in an assignment of error not otherwise noticed, that such act of the court in a case like this ipso facto sustained a similar motion for a new trial in the case of this defendant, is trivial, and needs for its refutation but the bare statement of the contention.

The question of the sufficiency of the evidence is a serious one in this case. That defendant was convicted largely by the testimony of his own sister, is clear, but while clear it is against human experience and makes of this a weird and strange case. If the learned trial court had sustained the motion for a new trial, as he lawfully could have done (Ewart v. Peniston, 233 Mo. 695; State ex rel. v. Ellison, 256 Mo. 644), and as we think he ought to have done, we could not under the law have interfered, and upon the facts would not have interfered if we could. But since the court nisi, having the right to set aside this verdict, refused so to do, when to have done so would have been to err upon the side of doubt and mercy if at all, ought we to do so, and have we the right under the law to do so. The law and the facts which will justify us in upholding a trial court in setting aside a verdict on account of the insufficiency^ of the evidence, or the uncertainty of it, by reason of suspected perjury (which is in effect the same thing), differ diametrically from the law and the facts which will justify our convicting the trial court of error where he refuses to set a verdict aside. [State ex rel. v. Ellison, supra.] Here the weight of the evidence and the credibility of the witnesses were wholly for the triers of fact and not for us as soon as the verdict of the jury met the approval of the trial court, and of course in all criminal cases this is so whether it so met the court’s approval or not. If there be found in the whole case as to defendant any substantial evidence of his guilt, we must defer to the verdict of the jury and sustain this conviction. [State v. Concelia, 250 Mo. 411; State v. Maggard, 250 Mo. 335.]

That the man was murdered and robbed in Franklin county, Missouri, on the night of the 7th day of August, 1910; there is and can be no serious question made. That two lethal weapons were used and that therefore two persons were implicated, the evidence plainly shows. Did the defendant take part in this killing is the only question left on which to look and see if there be evidence enough to g:o to the jury. The negro Yancey is so doubtful in his identification of the defendant and so shaken by cross-examination that, but for the defendant’s own extra-judicial statements to officers Schmidt and Fleming of the police force of St. Louis and to the deputy constable Deatherage, we should be compelled to say that his testimony is incredible and worthless for any purpose. But defendant himself corroborates Yancey in many points, in that he admits he was in Pacific in company with ■ Hoffman and the dead man, and that he was in the saloon there and canning' beer with the dead man and Hoffman practically just as Yancey says he was.

The little girl Rachel Oaveness, who is not at all shaken on her cross-examination, likewise identifies Taylor and Hoffman as being in Pacific on August 7, 1910. Defendant, after admitting to the officers Ms presence with the dead man at Pacific on the Sunday evening before the latter was killed, insists that he left Pacific for Washington, Missouri, before night; that he last saw deceased and Hoffman in company on the platform of the railroad station in Pacific at about seven o’clock on said Sunday evening and that he remained some two days at Washington. Upon the trial he seeks to prove an alibi by showing he was at work on Monday, August 8, 1910, and taking Ms meals at Ms boarding house. His alibi was for the jury, of course, but their finding on it is justified by its flimsiness and lack of congruous coherency. But tMs, it may be urged, only shows Ms presence in Pacific on the fatal Sunday in company with the dead man, and of itself is not sufficient. We grant that it would not be any substantial proof of guilt if it stood alone. [State v. Francis,. 199 Mo. 671.] If, however, the testimony of defendant’s sister is to be believed, he told her such facts as indicated Ms presence when the man was killed. No other witness in the case tells of getting money off the dead man. Yet defendant, according: to Ms sister, says that the murder was done with an iron rod; that he (defendant) saw the man after he was murdered; that one of his shoes was taken off — the right one was taken off, but not his left one— and that a “right smart of money” was gotten out of his right shoe. Unless defendant was present when deceased was killed, he could not have seen this mam so far as all tlie other evidence in the case, including his own statements to the officers, shows. No other witness in the case said, or seemed to know, how much money or whether any money was gotten from the dead man’s shoes, except defendant himself, as disclosed by his own statements to his sister. Again, defendant vainly boasting says, according to his sister, that “there were not officers enough to take him hack to Pacific, unless they took him hack on a stretcher, ’ ’ and that the officers were not after Eedmon Taylor, the defendant’s brother, hut that they were after defendant himself.

Defendant’s sister does not evince any hostility or unfriendliness toward him. She was not asked as to her feelings toward him and so neither she nor any one in the case tells us whether her testimony was tinged by hostility or enmity toward defendant. We can only ascertain this fact from her whole manner of testifying. We note that she at first refused to divulge to the railroad special agent and deputy constable Deatherage — who seems to have been a sort of self-constituted, or a reward-animated Nemesis upon defendant’s trail — whether she knew anything about her brother’s connection with-the case or not. Later when Deatherage obtained such definite information touching this sister’s knowledge of -this case, she then felt she ought to divulge all she knew, which she accordingly did. She does not seem to have been a volunteer, hut finding, as she admits in her testimony, that her knowledge of some of the facts had “leaked out,” as she expresses it, through the family, she either felt afraid to deny, or felt impelled by her regard for the truth to admit, her knowledge of what the defendant had told her of this murder. One McGraw was the son-in-law of Mrs. Gasperson, the sister of defendant. McGraw, also a railroad man and an acquaintance of Deatherage, was the family spigot through whom the information leaked out to Deatherage. The testimony of this witness bears the earmarks of verity. No animns is shown by the proof, and none is to be gathered therefrom by inference from her manner on the stand, as the record shows it. She denies vigorously that she expected any reward for her testimony, as is insinuated by the cross-examination of defendant. In fact, she would have been foolish to expect any directly, and she denies any hope of any indirectly through any secret agreement with Deatherage. If she was to be believed, and her testimony was for the jury, there was sufficient evidence to go to the jury and this judgment should be affirmed. Let this be done.

Walker, P. J., and Brown, J., concur.


author: ROY, C.

text:
    J. WILLIAM CHILTON v. LEANDER F. NICKEY, Appellant.
    Division Two,
    July 14, 1914.
    1. EVIDENCE: Patents to Land: Certification of Copies. Copies of land patents certified by the Recorder of the General Land Office at Washington, are receivable in evidence.
    2. TAX SALE: Unknown Heirs. The petition in a tax sale must describe the interests of the unknown heirs of a deceased owner, otherwise a sale under a judgment rendered thereon is void. After the death of the owner of the land, his heirs must be properly sued, served and allowed their day in court, else their title is not affected by judgment.
    3. SUIT TO QUIET TITLE: Legal Title: Adverse Possession: Issue of Law: Verdict. Where in a suit to quiet title the plaintiff stood on his legal title and the defendant claimed under the thirty-year Statute of Limitations, a square issue of law resulted, and the verdict of the trial court on that issue is conclusive.
    4. -: -: -: Preponderance of the Evidence. One claiming under the thirty-year Statute of Limitations must establish his possession by a prepoderance of the evidence.

      5. LACHES: Not Defense to Claim Under Legal Title. The doctrine of laches is only applied to defeat a claim for some equitable relief. It is no bar to a claim made under a legal title.
    6. SUIT TO QUIET TITLE: Ownership in Others than Parties. Where the evidence in a suit to quiet title shows that a portion of the land in suit did not, when the suit was instituted, belong either to plaintiff or to defendant, there can be no adjudication as to that portion.
    7. -: Taxes: Not Pleaded: Judgment. Where defendant’s answer made no claim for taxes paid on land bought at an invalid tax sale, but a certain sum was put in evidence, the Supreme Court will render judgment, in a suit to quiet title, which went against defendant, for an amount proportionate to the sum paid by defendant upon that part of the land adjudged to belong to the plaintiff.
    Appeal from Butler Circuit Court. — Hon. J. G. Sheppard, Judge.
    Affirmed (as modified).

      E. B. Lents for appellant.
    (1) The proof in this case shows conclusively that neither plaintiff nor those itnder whom he claims have ever been in possession of the land in controversy or any part thereof, nor did the plaintiff or any one under whom he claims, pay any taxes on the land in controversy or any part thereof for more than thirty-five years- next before the commencement of this suit. But on the other hand, the proof shows that the defendant, by his agent or tenant, has been in the actual possession of a part of the lands in controversy for more than one year next before the commencement of this suit, under claim and color of title to the whole. and exercising the usual acts of ownership- over the whole of the said lands and paying the taxes thereon and by reason thereof plaintiff’s right of action is forever barred. R. S. 1900, sec. 1882; Campbell v. Greer, 209 Mo. 215; DeHatre v. Edmonds, 200 Mo. 278; Crain v. Peterman, 200 Mo. 297. (2) The decree in the case of Leander P. Nickey v. Henry 0. Wright et al., rendered on the 23d day of April, 1906, and read in evidence in this case, constituted color of title on all the lands therein described, from the date of rendition and recording of said decree. And this is true even though the decree or judgment is, for any reason, irregular or even void. 1 Oyc. 1100-4;.Jones v. Thomas, 124 Mo. 589; Brewing Co. v. Payne, 197 Mo. 428; Dunnington v. Hudson, 217 Mo. 100. (3) This plaintiff and those under whom he claims have been guilty of laches and are barred thereby from having or maintaining this action. Morrison v. Turnbaugh, 192 Mo. 447; Rutter v. Carothers, 223 Mo. 631; Shelton v. Iiorrell, 232 Mo. 358. (4) In this case it .makes no difference whether the Henry O. Wright under whom plaintiff claims was the Henry O. Wright to whom these lands were conveyed, nor whether he was alive or dead at the time that these various tax suits were brought against him, or whether the judgments rendered in the tax suits were valid judgments or not, nor whether the decree in favor of Leander P. Nickey in the case of Nickey v. Wright, was a valid decree or not, they were nevertheless color of title and if these instruments showed that Nickey was the apparent owner of the title to all the lands in controversy, and was in possession of any part of the said lands, under claim or color of title, claiming the whole of the said lands, then defendant’s right to action is barred as to all of the said lands. (5) If plaintiff, or those under whom he claims, have abandoned their claim of title to the lands in controversy or have been guilty of laches then plaintiff cannot recover in this case, no matter what title his immediate or remote grantors may have had, nor whether the defendant has been in the actual possession of the lands or not. (6) The copies of the patents from the United States to Henry C. Wright and to Alois Menne for the lands in controversy were improperly admitted in evidence for the reason that they were not certified to by anybody as being correct copies and for the further reason that no proof had been made that original patents had ever been issued, or that if issued, the original patents had not been accounted for so as to admit as secondary' evidence, the copies which were introduced.

      Jamies Orchard for respondent.
    (1) “The copies of any patents, records, boohs, or papers in the general land office, authenticated by the seal and certified by the recorder of such office, shall be evidence equally with the originals thereof to the same force and effect as when certified by the commissioner of said office.” Act Of April 19, 1904, chap. 1396,; 33 U. S. Stat. at Large, p. 189; 10 Federal Statutes Annotated, p. 354. It is the duty of the recorder of the general land office at Washington to certify all patents that may be issued from the office of the commissioner of the general land office. R. S. United States, sec. 459 ; 6'Fed. Stat. Ann. p. 217. An exemplification of a patent certified by the recorder of the general land office, may be introduced in evidence without proof of the loss of the original patent. Barton v. Murrain, 27 Mo. 235; Sec. 6293, R. S. 1909. (2) The finding by the trial court that respondent’s grantors were the heirs, and sole heirs, of Henry C. Wright, deceased, is supported by the same presumptions as support a jury’s finding in an action at law, and will not be disturbed by this court. Williams v. Sands, 158 S. W. 47. (3) Identity of name is primafacie evidence of identity of person, from which the trial court was warranted' in finding that Henry C. Wright, the ancestor of plaintiff’s grantors was the same Henry C. Wright who owned the land in controversy, and that finding will not now be disturbed by this court. Gage v. Cantwell, 191 Mo. 698; Gitt y. Watson, 18 Mo. 274; Flonrney v. Warden, 17 Mo. 435; State v. Moore, 61 Mo. 276; State v. McGuire, 81 Mo. 642; Williams v. Sands, 158 S. W. 47. (4) A tax suit. brought against a man who was dead at the time, though shown by the deed records to have been the owner of the land, is void, and does not affect the title of his heirs, to the land. Williams v. Hudson, 93 Mo. 524; Stafford v. Fizer, 82 Mo. 393; Adams v. Gassom, 228 Mo. 566'. (5) A tax suit brought against the heirs of a deceased owner of real estate as “unknown persons,” is void if the petition and order of publication therein do not describe the interest of such unknown persons in the land. Land & Mining Co. v. Land & Cattle Co., 187 Mo. 420; Davis v. Montgomery, 205 Mo. 271; Huiskamp v. Miller, 220 Mo. 135; Betts v. Staley, 76 Mo. 158. (6) Acts of ownership and authority exercised over land by a claimant thereof, such as cutting timber, surveying the land, keeping other trespassers off, and even paying taxes thereon, do not' constitute actual possession, within the meaning of the law of limitations. Pharis v. Jones, 122 Mo. 125; Nye v. McÁlfter, 127 Mo. 529; Himmelberger-PIarrison Lbr. Co. v.- McCabe, 220 Mo. 154; Chilton v. Cománianni, 221 Mo. 685; Weir v. CordzFisher Lbr. Co., 186 Mo. 397; Carter v. Hornback, 139 Mo. 244; Morgan v. Pott, 124 Mo. App. 371. (7) Actual adverse possession of land, in order to ripen into title must be continuous for the legal limitation period invoked. Possession cannot be tacked as between a prior and subsequent occupier of land, unless there was colorable transfer of the first possessor’s claim to the last. Maysville v. Truex, 235 Mo. 619; Crispen v. Hannavan et al., 50 Mo. 549; Adkins v. Tomlinson, 121 Mo. 493. And there is no difference in the character of the possession, of a claimant required to sustain the thirty-year Statute of Limitation, and that which will sustain the ten-year Statute of Limitation. The only difference is the time the occupant must have hold the land in snch adverse possession. Chilton v. Comanianni, 221 Mo. 685. (8) The finding as a fact by the court sitting as a jury, upon the evidence adduced, that appellant had not had such actual possession of the land in controversy as would support his plea of the thirty-year Statute of Limitation, is conclusive of that fact, and will not be disturbed by this court. Nickey v. Leader, 235 Mo. 30; Williams v. Sands, 158 S. W. 49; Daman v. Remme, 246 Mo. 233; Griggs v. Bridgewater, 167 Mo. App. 342; Blair v. Blair, 247 Mo. 61; Renting & Investment Co. v. Bernardon, 152 S. W.. 1105. (9) Failure of the owner of land to take possession thereof, or to sue to quiet the title thereto, and even the nonpayment of taxes thereon — for any length of time whatsoever, are acts which do not of themselves bar or estop such owner from asserting title at any time or in any manner that may suit him. Haarstick v. Gabriel, 200 Mo. 237; Burkham v. Manewall, 195 Mo. 500; Manwarring v. Lbr. & Mining Co., 200 Mo. 718 ; Wear v. Cordz-Fisher Lbr. Co'., 186 Mo. 388; Hays v. Pumphrey, 226 Mo. 119; Brewster v. Land ■& Imp. Co., 247 Mo. 209. (10) The testimony of respondent’s grantor, P. M. Wright, does not sustain the contention of appellant that respondent’s grantors a had abandoned the land and did not claim to own it at the time they sold it to' respondent. But even if said testimony would bear out such inference, it could not affect the title of respondent so acquired, because it' is not permissible for a party to impeach the title he sells by statements and declarations made after such sale. Benevolent Society v. Murray, 145 Mo. 623; Garrit v. Wiltse, 161 S. W. 694; Marshall et ah v. Hill, 246 Mo. 1.
   ROY, C.

Suit to quiet title in which judgment was for plaintiff. The land is the northeast. quarter, and the west half of the southeast quarter, of section - one; also the southeast quarter and lot one of the northeast quarter of section two, all in township twenty-three, range four east. It is wild timber land with no improvements, as hereinafter stated.

The answer contained a general' denial, except that it admitted a claim of ownership by defendant, and pleaded the thirty-year Statute of Limitations as to that part of the land in section one.

The plaintiff read in evidence a copy of a patent issued to Henry C. Wright of Warren county, Missouri, for that part of the land in section one, dated September 1, 1859', and a copy of a patent to Alois Menne, for the lands in section two. Each of these instruments was certified as follows:

“Department of the Interior, General Land Office, 'Washington, D. C., Oct. 12, 1910. — I hereby certify that the annexed copies of patents are true and literal exemplifications from the records in this office. In testimony whereof, I have hereunto subscribed my name and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written.

(Seal)

“H. W. Lanyard, Recorder of General Land Office.”

To these copies of the patents the defendant objected for the reason that they were not authenticated as required by the Act of Congress pr in any other manner. The objection was overruled and defendant excepted.

Plaintiff read in evidence a warranty deed from Alois Menne to Nicholas P. Stephenson for the land in section two, dated December 15, 1857, and recorded December 15, 1868; also a warranty deed from said Stephenson to Henry C. Wright for the same land, dated May 29, 1858, and recorded June 14, I860.

Wright died May 15, 1880, and left surviving him three children and-the descendants of two deceased children. The plaintiff acquired the interests of all the heirs except those of Mrs. Robert Williams, Mrs. DeMuth, Alton Easton and W. R. Easton, the descendants of a deceased daughter of Wright, said interest being one-fifth of the land. P. M. Wright, a son of Henry C. Wright, testified for plaintiff, and on cross-examination said that he did not know where his father’s deeds to the land were; that the taxes had not been paid by his father or his heirs since 1875, that the heirs got $100 from Mr. Chilton for the land, and that he was satisfied with that price because he knew it had been sold several times for taxes, and that it would necessitate trouble and expense to recover it.

As to the defendant’s title, it is sufficient to say that at various times from 1883 to 1903 different portions of the land were sold for taxes in suits against Henry C. Wright and during that time all the. land was so sold for taxes, some portions of it being sold several times. The east half of the northeast quarter and the northwest quarter of the northeast quarter of section one was sold for taxes on October 21, 1903. Defendant read in evidence a sheriff’s deed under a judgment for taxes against Henry C. Wright, the unknown heirs of Henry C. Wright, deceased, the unknown devisees of Henry C. Wright, deceased, and others, to the defendant herein. The deed was dated April 13, 1907.

The plaintiff, in rebuttal, read in evidence the petition in the tax suit last mentioned: It did not describe the interests of the unknown heirs of Henry C. Wright in the land and did not allege that the interests of such unknown heirs in the land were unknown to the plaintiff.

The defendant after January 1, 1900, and prior to 1906, acquired the title of all the purchasers at the various tax sales. On April 23, 1906, a decree was rendered in the circuit court of Butler county in the case of Leander F. Nickey v. Henry C. Wright, Joseph Gardner, H. B. Powers and others, quieting the title to the land in said Nickey. The heirs of Henry C. Wright were not parties to that suit, nor was the plaintiff.

There have never been any improvements on the land-in section two. In April, 1906, the defendant sold the tie timber on the land in section two under the agreement that the purchasers were to remove the timber within two years. The purchasers during the time limited cut and removed the tie timber. The defendant testified that about six years before the trial he turned all the land over to Joseph G'ardner, who agreed to take care of it for defendant for the use of the house then on the place, and the tillable land. There was a small box house on the northeast corner of section one, near which there was about an acre of ground that had been cultiváted at some time not shown in the evidence. When the house was built is not shown. Defendant testified that he had the land in section two surveyed and that he cut brush off the land in order to keep timber thieves away. He sold an acre from the tract for a schoolhouse.

The defendant in his testimony disclaimed personal knowledge of other acts of ownership on the land except that he had put Gardner in charge of it. Gardner testified that he had been in possession' of the land since the defendant put it in his charge. When asked about his acts of ownership, he said:

“Q. Well, just tell how you got possession of it? A. I asked permission of Mr. Nickey to have possession of the place for the simple reason I would know who lived there, then if I had control of it— and he told me to go ahead and use it as my own, or something to that effect; he said go ahead and take care of it and keep the rails from getting burned and keep, the fellows from cutting the timber off the land. I know something was said about timber, and I have had possession of it since that — and didn’t you ask me in what way I have used it?

“Q. Yes, sir. A. Well, I had a family living1' in there once. _

“Q. How long? A. I believe, maybe twice; I gave my consent once for a family to move in there, and another time I had a family living in there for my own benefit, that was working for me.

“Q. Go on. A. And that has been two years ago since the last family lived in the house. Since that time I used the house to put hay in in the winter —the fall of the year I feed my cattle around the house, in the winter time. In the summer time it makes the finest kind of a shophouse.

“Q. Is there any of the land that is inclosed by fence? A. Why, I have three barbed wires running across there, the neighbors out there don’t call it much fence.

“Q. Well, does it inclose any land? A. Yes, sir, it incloses a part of this tract. It incloses the house and, just an off-hand guess, I would say ten. acres of the land.”

He further testified that the first man who lived in the house with his permission was Thomas Powers, who occupied it a month, and that the other was Mentó Murphy, who lived there about six months; that he put the wire fence there early in the spring before the trial. There had previously been a rail fence around the house and enclosing about ten acres of the land, but it had been partly burned and was not used. The house and rail fence had been constructed prior to the acquisition of any title by the defendant, and the house was not occupied at the time defendant put Gardner in charge. The defendant put in evidence receipts for taxes paid on the east half of the northeast quarter and the northwest quarter of the northeast quarter of section one, amounting with interest to $39.73. The answer made no claim on account of taxes paid by defendant.

I. Defendant’s objection to the .copies of the patents as evidence was not well taken. Those copies were certified by the recorder of the general land office at Washington, D. C. ml n , . . The use of such copies so certified is provided for by 33 IT. S. Statutes at Large, p. 189, and by section 6293', Revised Statutes 1909.

II. The only tax suit in which any attempt was made to proceed against the heirs of Henry C. Wright was the one under which a sale was made 1907 for a portion of the land. The petition in that case did not describe the interests of the unknown heirs of Henry C. Wriglit in the land, and, for that reason, the sale thereunder was void. [Davis v. Montgomery, 205 Mo. 271; Land & Mining Co. v. Land & Cattle Co., 187 Mo. 420.] After the death of the owner of the land, his heirs must be properly sued, served and allowed their day in court. Otherwise the proceedings are void. [Adams v. Gossom, 228 Mo. l. c. 577.] It results that all the tax sales were void.

III. In Morrison v. Bomer, 195 Mo. 535, it was held that one claiming by adverse possession for ten years must' show such adverse possession by a preponderance of the evidence. It was- also held in that case that the question of adverse possession was one ■ for the triers of fact, and there being evidence on which to base the finding, it was conclusive on the parties. The same rule as to a preponderance of the evidence applies in this case. The plaintiff stood on tlie legal title; the defendant claimed by the thirty-one-year Statute of Limitations. It was a square issue at law, and the verdict of the trial court is con-conclusive.

A close examination of the evidence shows that the proof for the defendant as to his possession for one year before suit brought, even if its truth be conceded, is subject to more than one construction. The trial court could have refused to believe defendant’s evidence, or, taking it as true, it may have found that it did not show continuous actual possession for a year by the defendant.

IV. Appellant insists that the plaintiff is barred by laches. The doctrine of laches is only applied to defeat a claim for some equitable relief. ^ It is no bar to a claim made under a legal title. It was expressly so held in Hayes v. Schall, 229 Mo. l. c. 124. In no case in this State has it been held that laches is a bar to a claim made under a legal right as- distinguished from an equitable claim or title.

V. It clearly appears from the evidence that one-fifth of the land at the date of the institution of this suit did not belong to either the plaintiff or the defendant, but to the heirs of the deceased daughter of Henry C. Wright, named in the foregoing statement. The judgment of the trial court is hereby modified so as to adjudge and decree in the plaintiff the undivided four-fifths of the land, and no adjudication' as to the other fifth is made.

VI. In accordance with the precedent set for us in Mangold v. Bacon, 249 Mo. l. c. 50, we modify the judgment of the trial court by rendering judgment here in favor of the defendant for four-fifths of the taxes and interest on that portion of the land sold for taxes in 1903, to-wit: The sum of $31.78, and the same is declared a first lien on plaintiff’s interest in the east half of the northeast quarter, and the northwest fourth of the northeast quarter of said section one.

The judgment as thus modified is affirmed.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Rot, C., is adopted as the opinion of the court.-

Walker, P. J., and Brown, J., concur. Paris, J., concurs in result.