text:
    MARY E. SUMMET et al., Appellants, v. CITY REALTY & BROKERAGE COMPANY et al.
    Division One,
    December 24, 1907.
    1. RES ADJUDICATA: Parties and Privies: Subsequent Grantees. Judgments are binding upon parties to the suit and upon their privies, whether in contract, estate, blood or law. So that where the plaintiffs in the ejectment suit were defendants in a former suit by which the validity of a sale under a deed of trust made by them was adjudicated and determined in favor of the then plaintiff insurance company, and the defendant in this suit is the grantee through mesne conveyances of that company, and therefore its privy, that judgment is binding upon plaintiffs in this.
    2. -: Sale Under Deed of Trust: Adjudged Valid: Sale by Stranger. Where plaintiffs in the former suit assailed the validity of the sale under a deed of trust, asking that it be set aside because of the fraud and misconduct of the trustee, they thereby admitted that the deed of trust was duly executed and that the sale was made by the rightful trustee.
    3. -: Matters That Might Have Been Litigated. Every question which properly belonged to the subject of the litigation and which the parties in the ex.ercise of reasonable diligence might have brought forward, was determined in the former suit, and the judgment is as binding as to those matters as it would be had they specifically been put in issue.
    4. DEED OF TRUST: By Insurance Company: Estoppel. The borrower of money from a life insurance company, who executes a deed of trust on real property as security therefor, and his privies, are estopped from questioning the power of the corporation to loan the money or to take the deed of trust as security therefor.
    5. CORPORATION: Holding Real Estate for Six Years. The right of a corporation to hold real estate for more than six years after it had bought it in a foreclosure sale under a deed of trust given to secure a loan to the mortgagor, is a question which only the State can raise.
    6. CONVEYANCES: By Life Tenant and Remaindermen. Contingent remainders are alienable the same as are other estates. So that where the marriage contract entered into by a woman and the owner of a lot gave it to her and to the heirs of her body by him begotten, and after his death and after ail her children by him begotten had reached their majority, she and they conveyed the lot to a trustee to secure a loan by an insurance company to her, and then she died, a valid foreclosure of the deed of trust and sale thereunder conveyed the lot to the purchaser, and all the title of the remaindermen.
    . 7. -: -: Loan to Life Tenant Alone. Nor does the fact that the contingent remaindermen received no part of the money loaned to the life tenant in any manner affect the validity of the deed of trust which they joined'her in making to the insurance company to secure the loan. ■
    8. EJECTMENT: Equitable Relief: Quieting Title: Pleading. All that is necessary to entitle the defendants in ejectment to have the title quieted under section 650, Revised Statutes 1899, is to allege in their cross-bill how they acquired title and then to state generally .that plaintiffs claim some interest'in the premises adverse to them, with a prayer that their respective interests may be ascertained and determined by the court.
    9. -:.-: Trial by Jury. Where plaintiffs in ejectment did not make out a prima-facie case, and defendants in their cross-bill asked that the title be quieted and for equitable relief, the court did not err in refusing plaintiffs a trial by jury.
    Appeal from Jackson Circuit Court. — -Non. Jas. H. Slover, Judge.
    Aeeirmed.

      English £ English for appellants.
    (1) The plea of res judicata was not sufficient under any rule of pleading. One suit in ejectment does not bar a second. Demurrer thereto should have been sustained. (2) In this action the issues were those of the legál title, and right of possession. Plaintiffs were entitled to a jury trial. E. S. 18991, sec. 691. There was no waiver of jury trial. (3) The deed of trust to Case was void as to the children of I). A. N. Grover and Latitia Grover. It created no estoppel. They received no consideration. The court erred in admitting the deed from the Prudential Insurance Company to Carey. It was incompetent for the reason it did not purport to be executed by the Insurance Company, nor was it acknowledged as provided under the statutes. - E. S. 18991, sec. 913. Also in admitting the second deed; it was not signed by the “president or the presiding member, or trustee” or the corporation, and is void. E. S. 1899, sec. 904. (4) Under the pleading the findings are not sustained by the evidence, and the judgment is erroneous in attempting to. give equitable relief as no equitable mattters were alleged in the pleadings or established by the evidence. Wilson v. Lubke, 176 Mo. 210.

      Haff & Michaels and W. M. Walker for respondents.
    (1) A contingent remainder is vendible during the continuance of a life estate, and if the remainder-men survive the life tenant, a good title will pass to the purchaser or his grantees. Godman v. Simmons,--113 Mo. 122; Findlay v. Babb, 173 Mo. 263; Clark v. Sires, 193 Mo. 502. (2) Grantors or their privies cannot impeach their deeds for failure of consideration, especially after the land conveyed reaches the hands of purchasers for value without notice. Wine-land v. Coonce, 5 Mo. 296; Gordon v. Bitenour, 87 Mo. 54; Hollocher v. Hollocher, 62 Mo. 267. (3) Money advanced to a life tenant on a deed of trust signed by the life tenant and by the remaindermen at the request of the life tenant, is a good consideration to the remaindermen, and even as between the parties to the deed the remaindermen are estopped from asserting a failure of consideration to them. Mullanphy v. Reilly, 8 Mo. 675; Bank v. Graham, 74 Mo. App. 251; Halsa v. Halsa, 8 Mo. 303; Houck v. Frisbee, 66 Mo. App. 16; Coal Co. v. Blake, 85 N. T. 226; Edwards v. Sehoeneman, 104 111. 278; Post v. Bank, 38 111. App. 259; Johnston v. Bldg. Assn., 104 Pa. St. 394; 6 Am. and Eng. Ency. Law (2 Ed.), 761; 14 lb. 285; 23 lb: 511. (4) An acknowledgment by the president of a corporation that the instrument was the voluntary act and deed of the corporation is in compliance with the statutes and is good. R. S. 1899, secs. 904, 982; Eppright v. Nickerson, 78 Mo. 483; Huse v. Ames, 104 Mo. 103; Gross v. Watts, 104 S. W. 30. (5) A corporation deed signed and acknowledged by a vice-president is valid. R. S. 1899, sec. 982; Huse v. Ames, 104 Mo. 91; Ballard v. Carmichael, 83 Tex. 355. (6) The State alone can question the right of a corporation to hold property more than six years. Hall v. Bank, 145' Mo. 418; Bank v. Matthews, 98 U. S. 621; Bank v. Poitiaux, 3 Rand. (Va.) 136. (7) Grantors and their privies are es-topped from questioning the power of a corporation to loan money and take deeds of trust. Broadwell v. Merritt, 87 Mo. 101; Land Co. v. Railroad, 161 Mo. 595; Smith v. Sheeley, 12 Wall. 361. (8) Where judgments go against defendants who have set up equitable defenses, such judgments are binding on the parties and their privies in estate in subsequent suits. Samson v. Mitchell, 125 Mo. 230; Crispen v. Hannavan, 50 Mo. 415; 24 Am. and Eng. Ency. Law (2 Ed.), 724, 726. But even disregarding these judgments, the decree was for the right party and therefore will not be reversed. R. S. 1899, sec. 865; Gardner v. Railroad, 135 Mo. 90; Bragg v. Railroad, 192 Mo. 331. (9) A suit to quiet title under section 650, Revised Statutes 1899, is equitable in its nature and when a defendant is sued in ejectment and files a cross-bill under section 650 the case should be tried as an equity case. Graton v. Land & Lumber Co., 189 Mo. 332; Harrison Machine Works v. Bowers, 200 Mo. 235; Sampson v. Mitchell, 125 Mo. 230 ; Martin v. Turnbaugh, 153 Mo. 172; Myers v. Schuchmann, 182 Mo. 171; Swon v. Stevens, 143 Mo. 392; Lincoln Trust Oo. v. Nathan, 175 Mo. 32; Ward v. Quinlivin, 65 Mo. 454; Redman v. Adams, 165 Mo. 71; Cass Co. v. Bank, 157 Mo1. 133; Wilson v. Lubke, 176 Mo. 217.

      English & English for appellants in reply.
    (1) The instrument between Grover and his intended wife was but a marriage contract. It was not a conveyance. When supplemented by marriage it was enforcible in equity but was not a legal estate. 19 Am. and Eng. Ency. Law, 1227. The title attempted to be conveyed or pledged was not such as to pass their prospective reversionary interest. The marriage contract was not that her heirs take after her death, but that her heirs by him begotten, and, in want thereof, the property was to revert to his heirs. The facts or the law as laid down in Godman v. Simmons, 113 Mo. 122, do not apply. (2) The deed from the Grover heirs to the plaintiff Mary E. Surnmet was made before the trustee’s sale and after the death of Latitia A. Grover. Plaintiff then had title after the estate had vested in them. The injunction suit offered in evidence by defendant was brought against her and her husband also. She and he answered and in their answer set out a written contract with the insurance company authorizing her to redeem. As this answer and cross-petition was not denied under oath it stood admitted. R. S. 1899, sec. 746’. The suit was dismissed as to her and there was no judgment against her or any finding on this answer. This suit adjudicated nothing as to her interest adverse to her, except that its introduction by the respondents in this case authorizes the court below and the court here to indulge for her benefit all presumptions which attend the admission that such a contract existed between her and the insurance company.
   WOODSON, J.

This is a suit in ejectment for the possession of the south forty-nine feet of lot one hundred forty-six, in block eleven, McG-ee’s addition to Kansas City, Missouri.

The petition is in the usual form.

The answer of Anna Voypool is a.disclaimer of any interest in the premises, and an allegation that she was in possession of the property as tenant of defendant, the City Realty & Brokerage Company, and that she was ready and willing to attorn to the party to whom the title and possession of the property may be adjudged.

The defendant company’s answer is, first, a general denial; second, a plea of res judicata; third, a cross-bill, claiming to be the owner in fee of the premises, and admits its possession. Then it proceeds to allege that plaintiffs claim some right, title or interest in and to the property, but the character and nature of which is to the defendant unknown, except that it is adverse and prejudicial to defendant’s title.

The reply is a general denial of the new matters contained in the answer and cross-bill.

The plaintiffs demanded a trial by jury, claiming that the suit was one at law, while the defendant com tended that the answer and cross-bill converted it into an equitable proceeding, and was for that reason triable before the court.

The court took the latter view of the cause, and proceeded, over the objections and exceptions of plaintiffs, to try the case as one of equity. The findings and decree were for the defendant, and in proper form and in due time plaintiffs appealed the cause to this court.

The facts are few and simple, and are stated by counsel for respondent, substantially, as follows:

“April 25, 1862, D. A. N. Grover was the owner of the south 49 feet of lot 146, block 11, McGee’s Addition, in Kansas City, Missouri; and on that day he entered into an ante-nuptial contract with Latitia J. Cockrell, whereby this and other property was granted to his said intended wife ‘ for her separate use, benefit and behoof and the. heirs of her body begotten by the said D. A. N. Grover, forever. ’ May 1, 1862, the said parties were married to each other. February 18, 1863, a son, Charles Grover, was bom of said marriage. May 13, 1864, a second son, D. A. N. Grover, Jr., was born of said marriage. April 27, 1866, a daughter, Gertrude A. Grover, was bom of said marriage. February 9, .1868, a third son, Shelley Grover, was bom of said marriage. October 17, 1873, a fourth son, Pliny Warner Grover, was born of said marriage. No other children were born of said marriage. February 15, 2876, the said Pliny Warner Grover died. February 11, 1880, D. A. N. Grover, the said husband of Latitia J. Cockrell Grover, died.

“July 10, 2890» the said Latitia J. Cockrell Grover, D. A. N. Grover, Jr., Gertrude A. Grover and Shelley Grover, all then single persons, and Charles Grover and Mary J. Grover, his wife, united in the execution and delivery of a deed of trust, whereby they ‘granted, bargained and sold, conveyed and confirmed’ the said land unto Theodore S. Case, as trustee for the Prudential Insurance Company of America, in trust to secure one note for $1,000 and another note for $8,000, executed by all of the said grantors on said July 10, 1890‘, to said insurance company, which notes represent a loan that day made to said grantors by the said insurance company; the deed of trust was properly acknowledged. July 11, 1890, the deed of tmst was recorded in the proper office.

“August 20, 1893, Latitia J. Grover deeded said property to diaries Grover, consideration $621.88. July 10, 1894, Charles Grover and wife, D. A. N. Grover, Jr., and wife, Shelley Grover and wife, deeded said property to Gertrude A. Grover, consideration $100. This deed was made subject to ‘a deed of trust for $8,000 and interest thereon from January 10, 1894.’ October 13, 1894, Charles Grover and wife and Gertrude A. Grover deeded said property to Mary E. Sum-met, subject to ‘a deed of trust of $8,000, and interest thereon from January 10, 1894, which is now on record in the recorder’s office of Jackson county, Missouri.’ The consideration named in this deed is $1,500, but Mr. Summet testified that the actual consideration was $275.

“February 21, 1895, the deed of trust was foreclosed and the land sold after proper notice and because of default in the payment of the notes and interest secured by the deed. The Prudential Insurance Company of America was the purchaser, and on said day the said trustee made, executed and delivered his trustee’s deed to said land to said insurance company. February 27, 1895, said trustee’s deed was recorded in the proper office.

“In March, 1895, said insurance company brought its action of ejectment against William L. A. Summet, Mary E. Summet et al., in the Jackson County Circuit Court, claiming possession of the property in controversy. In April, 1895, defendants in said ejectment case filed answer, setting up defects in the trustee’s sale, in that the trustee was guilty of fraud and misconduct in stating to prospective bidders that the sale would be made at one hour of the day, and that in violation of those statements made it at another and different hour, and thereby caused the property to sell for a much less sum than it was really worth, and for which it would have sold had it not been for the statements; and prayed for affirmative relief, and filed an application for change of venue; this change of venue was granted and the case sent to the circuit court of Clay county. November 11, 1895, the said insurance company obtained judgment against defendants in said ejectment ease. November 30, 1895, the sheriff ousted the Summets from the said property and put the insurance company in possession.

“January 9, 1896, said insurance company filed in the Jackson County Circuit Court its bill in the nature of a bill of peace against said William L. A. Sum-met et al., based upon the judgment in the former ejectment case. Defendants answered setting up> equities and asking for affirmative relief. July 8, 1896, decree was rendered in favor of plaintiff in said bill of peace against the said William L. A. Surnmet and W. F. Johnson (the cause having been dismissed as to Mary E. Surnmet), whereby they were permanently restrained and enjoined from going upon the property in controversy in this case, from ‘injuring or defacing said property, from exercising any acts of ownership on said property or taking possession thereof or any part thereof, and from in any way interfering with the possession of the plaintiff, or of the possession of those ■holding said property or parts thereof under this plaintiff, or from committing any acts of trespass thereon,’ and for costs.

“August 19, 1901, the said insurance company, by general warranty deed, in consideration of the sum of $5,500, conveyed said property to Robert A. Carey, of Kansas City. September 23, 1901, said deed was re-» corded in the proper office. September 23, 1901, Robert A. Carey and wife made a general warranty deed of said property to respondent City Realty & Brokerage Company of Jackson County, Missouri. January 3, 1902, the said insurance company executed and delivered to the said Robert A. Carey its quit-claim deed of correction ‘for the purpose of correcting certain errors in the execution and acknowledgment of a certain deed made by first party herein to second party herein, dated August 19,1901, and recorded September 23,1901, in book B 778, page 309, of the records in the recorder’s office of Jackson county, Missouri.’

“March 15, 1902, the said Latitia J. Grover died and left surviving her the said Charles Grover, D. A. N. Grover, Jr., Gertrude A. Grover and Shelley Grover. December 23, 1902, the aforesaid deed of Robert A. Carey and wife to City Realty & Brokerage Company, dated September 23, 1901, was recorded in the proper office. July 28, 1903, the said quit-claim deed of correction of said insurance company to said Carey was recorded in the proper office.”

I. The first contention of the plaintiffs and appellants is that the judgment in the case of The Prudential Insurance Company against William L. A. Summet, Mary E. Summet et al., rendered by .the circuit court of Clay county on change of venue is not res judicata between the parties to this suit, and assign two reasons therefor: first, because the suit is not between the same parties; and, second, for the reason that the issues were not the same in that case as are those here involved.

We will dispose of those two propositions in the order presented.

First. While it is true the parties to that suit and this are not the same, yet the plaintiffs in this' case were defendants in that, and the defendant in this is in privity in estate with the plaintiff, the insurance company, in that case, having purchased the same property involved in that suit. The law is too well established to require a reinvestigation of the question, that judgments are binding upon the parties to a suit and their privies, whether in contract, estate, blood, or in law. [Litchfield v. Goodnow, 123 U. S. 551; Crispen v. Hannavan, 50 Mo. 415.]

S-Eoond. The cross-hill in the former case assailed the validity of the sale made by the trustee named in the deed of trust executed by plaintiffs, grantors, whereby they conveyed the property to the insurance company as security for the payment of the notes described therein, upon the grounds that he had been guilty of fraud and misconduct in the sale of the property, and asked for equitable relief. In that case the defendants therein, who are the plaintiffs herein, by not assailing the due execution and validity of the deed of trust, did, by implication and necessity, admit its due execution and validity by asking to have the sale set aside because of the fraud and misconduct of the trustee. If he was not the trustee, or if the deed was not properly executed or was invalid, why litigate the conduct of the trustee in making the sale thereunder? The only reasonable interpretation to be placed upon the cross-bill is that it admitted the due execution and validity of the deed of trust, but that the sale by the trustee thereunder was invalid because of his fraud and misconduct in making the sale thereunder. That being true, we must hold that all of those questions were adjudicated in the former trial and cannot be re-litigated in this.

But suppose that was not the true intent and meaning of the cross-bill, yet under the well-known rule of res judicata every question which properly belongs to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time, are included in the judgment, and it is as binding upon those matters as if they had been specifically put in issue. This rule is based upon the principle that a party must try his entire cause of action or make his entire defense in the same action, and will not be permitted to split up the cause of action or defense into several parts and litigate each separately, when all the matters properly and naturally relate to the subject-matter in litigation, and could properly and logically have been tried in the same cause; but this rule does not extend to matters which are wholly independent of" and have no' relation or connection with the subject of the litigation, such as set-off or counter-claim, without they are actually set up and adjudicated. [Mason v. Summers, 24 Mo. App. 174; Edged v. Sigerson, 26 Mo. 583.]

According to the law as enunciated in the foregoing authorities, both of appellants’ contentions must be ruled against them.

II. Appellants next present the legal proposition that, in this State, a life insurance company has no power or authority to lend money or take a deed of trust on property to secure the same.

'What has been said in paragraph one of this opinion applies with equal force and effect to the proposition here presented, as well as the next one to be considered; but as each of them is presented in different form, we will give them separate consideration.

The question now under consideration is no new one in this State. It has been held a number of times by this court, that a borrower of money and he who executes a deed of trust on real property as security therefor and his privies are estopped from questioning the power of the corporation to loan the money and to take a deed of trust as security therefor. [Broadwell v. Merritt, 87 Mo. 101; West Mo. Land Co. v. Railroad, 161 Mo. 595; Smith v. Sheeley, 12 Wall. 361.]

III. This court is next asked to reverse the judgment in this cause because the record discloses that the insurance company held the land in question for a period of more than six years, which is in violation of section 7 of article 12 of the Constitution of 1875. This question can be raised by the State alone. It is a matter that does not concern the individual, as held by the following cases: Hall v. Bank, 145 Mo. 418; National Bank v. Matthews, 98 U. S. 621; Bank v. Poitiaux, 3 Rand. (Va.) 136.

IV. The contention that the deed of trust to the insurance company is void as to the children of D. A. N. Grover and Latitia, his wife, and for that reason no title passed to the company, is equally untenable.

The marriage contract entered into between them gave the lot to Latitia Cockrell and to the heirs of her body by him begotten. At common law those words created an estate tail in the first taker, but under section 4 of chapter 108, General Statutes of 1865, that estate was converted into a life estate in Latitia, with a contingent remainder in fee in favor of the persons answering the description of the words, “the heirs of her body, ’ ’ upon the death of the life tenant.

Latitia and all the children of that marriage, after the death of D. A. N. Grover, and after all of them became of age, either by direct or mesne conveyances, conveyed the land to the insurance company as security for the loan before mentioned, and afterwards the mother died. While it is true the marriage contract created only a contingent remainder in their children, for the reason that no one could tell who the heirs of her body by him begotten would be until after her death, as the living have no heirs; but in this case that is entirely immaterial, because all of their children, after reaching their majority, together with their mother, joined in the conveyances to the insurance company. By this it is seen that the owner of the life estate joined in the conveyances with the contingent remaindermen, all of whom owned the entire estate in fee, and conveyed it to the insurance cornpany, and then in 1902, the life tenant died, without leaving any other such heirs.

The law of this State no longer rests in doubt regarding the right and power of contingent remainder-men to sell and convey their interest in real estate. This court has uniformly held that contingent remainders are alienable the same as are other estates. [Godman v. Simmons, 113 Mo. 122; Clark v. Sires, 193 Mo. 502; Finley v. Babb, 173 Mo. l. c. 263.]

And the fact that the remainderman received no part of the money lent to the life tenant can in no manner effect the validity of the deed of trust made to the insurance company. The money loaned by the company to Latitia Grover on her note, secured by the deed of trust signed by her and all of the remainder-men, was a good and valid consideration as to the 'latter; and even between the parties to the deed remaindermen are estopped from asserting a want of consideration to them. [Mullanphy to use v. Reilly, 8 Mo. 675; Madison County Bank v. Graham, 74 Mo. App. 251; Halsa v. Halsa, 8 Mo. 303; Coal Co. v. Blake, 85 N. Y. 226; Edwards v. Schoeneman, 104 Ill. 278; Johnston v. Bldg. Assn., 104 Pa. St. 394.]

V. Appellants’ contention that the cross-bill of respondents does not state facts sufficient to entitle it to the equitable relief prayed is not in harmony with the ruling of this court. It must be observed that respondents in their cross-bill rely upon section 650, Revised Statutes 1899', to have the title to their property quieted. Whatever may have been the individual views of the writers upon that subject, this court, in the case of Burk v. Pence, 206 Mo. 315, held that all that was necessary to be alleged in the petition to entitle the plaintiff to relief under that section was to state how they acquired their title, and then state, generally, as was done in the cross-bill in this case, that the defendant claimed some interest in and to the premises adverse to the plaintiffs, and prayed that their respective interests might he ascertained and determined by the court, and a decree entered adjudging the rights of the respective parties. The same rule of pleading is applicable to a cross-bill where affirmative relief is prayed for.

. VI. It must follow from the views hereinbefore expressed that the appellants did not introduce evidence sufficient to make out a prima-facie case, justifying its submission to a jury, and for that reason they have no valid legal reason for complaining of the action of the court in refusing them a trial by jury, even conceding, without deciding, that ordinarily they would be entitled to a jury in the trial of such cases.

Under the evidence introduced, the findings and judgment of the trial court were unquestionably just, proper and for the right parties, and the judgment should be affirmed; and it is so ordered.

All concur.


source: Caselaw Access Project

author: LAMM, J. LAMM, J.

license: Public Domain

text:
    MATHIAS WEISSENFELS v. LEWIS R. CABLE, Appellant.
    Division One,
    December 24, 1907.
    1. DEED: Fraudulent: Right of Action. The right of action on a fraud is not vendible. The right to sue to set aside a deed to defendant as being a fraud on the grantor is in the grantor, remains in him, and does not pass by a subsequent special warranty to plaintiff, the grantee of an adjoining tract, where such subsequent grantee had no prior, independent, equitable right in the land embraced in the deed which he insists was a fraud on the grantor.
    2. -: -: Proof. Where the owner of land was not misled by false suggestion or suppression of the truth his deed cannot be set aside as being the result of fraud practiced on him.

      3. -: Evidence of Intent and Purpose. In the absence of mutual mistake or fraud and deceit and of any ambiguity in a deed, evidence of -what the grantor’s purpose and intent in making a deed were, is not competent. Where the deed conveys all the part of a forty-acre tract lying west of a river or creek, testimony in ejectment that he intended to convey also two small pieces lying east of the creek, is incompetent.
    4. -: Small Consideration. A small consideration of two dollars for a quitclaim deed to a small tract of land, and of one dollar for a subsequent special warranty of the same tract to another grantee, did not, in either case, vitiate the deed.
    5. -: Quitclaim. For the purpose of transferring the title a quitclaim is as effective as any other deed, barring outstanding equities, not the subject of record, and barring recourse on covenants of warranty.
    6. -: Mistake. A mistake furnishing ground for equitable interference, such as the setting aside of a deed, must be a mutual mistake of fact.
    7. -: -: Amending Pleading. And where there is no evidence of mutual mistake, an amendment to the petition, after the evidence is in, should not be allowed.
    Appeal from Jackson Circuit Court. — lío». A. F. Evans, Judge.
    Reversed and remanded {with directions).

      Edward P. Garnett for appellant.
    (1) The quitclaim deed was as effectual to convey the title as a warranty deed. It only differs from a warranty deed in affecting the liability of the grantor on his covenants. Chew v. Keller, 171 Mo. 225; Bartlett v. Brown, 121 Mo. 353; Munson v. Ensor, 94 Mo. 504. (2) The quitclaim deed from Boone to defendant vested in him the absolute title to the property in question, and the subsequent deed from Boone to plaintiff could not possibly affect the title of defendant, as he “was in no wise a party thereto, and that deed could not possibly affect rights created in Mm by said first-named deed.” Christ v. Kuehne, 172 Mo. 124; Hope v. Blair, 105 Mo. 95; Munsen v. Ensor, 94 Mo. 504; Elliott v. Buffington, 149 Mo. 663; Bartlett v. Brown, 121 Mo. 353. (3) The fact that Cable paid only $2 and expenses of Boone as- a consideration does not invalidate the deed. “If there is a valuable consideration, no matter how trivial or inadequate, the conveyance is not voluntary.” A grant cannot be defeated by showing inadequate consideration. Edwin v. Latimer, 183 Mo. 626; Gentry v. Field, 143 Mo. 410; Henderson v. Henderson, 13 Mo. 157; Bobb v. Bobb, 89 Mo. 419; D’obyns v. Beneficiary Assn., 144 Mo. 109; Wishart v. Gerhart, 105 Mo. App-. 112; Hickman v. Hickman, 55 Mo. App. 311; Jackson v. Railroad, 54 Mo. App. 636; "Winton v. Railroad, 160 Mo. 176. (4) The deed from Boone- to Cable vested in him an absolutely perfect title to the tract of land in controversy, and this title will remain in Cable until that deed is cancelled or set aside on the grounds of fraud or mistake. It is well-settled law that before a court of equity will cancel, set aside or change a deed duly executed according to the forms of law, on the grounds of fraud or mistake, the evidence of such must not only be clear, cogent and convincing, but must be of such a character as to satisfy the minds of the court beyond any sort of doubt that the mistake has been made or the fraud perpetrated. Hall v. Small, 178 Mo. 634; Parker v. Vanhoozer, 142 Mo. 621; Fanning v. Doan, 139 Mo. 392; Judson v. Mullerex, 145 Mo. 630; Brinkman v. Sunken, 174 Mo. 709; Turner v. Shaw, 96 Mo-. 22; Dickson v. Railroad, 168 Mo. 90; Bartlett v. Brown, 121 Mo. 353; Benn v. Pritchett, 163 Mo. 560; Sweet v. Owen, 109 Mo. 1.

      Scarritt, Scarritt é Jones for respondent.
   LAMM, J.

In September, 1904, plaintiff brought suit in the circuit court of Jackson county having for its object to ascertain and determine the estate, title and interest of plaintiff and defendant, respectively, in certain parcels or tracts of land, all included in the general description of southeast quarter of the northeast quarter of section 28, township 48, range 33, in said county, and to define and adjudge such title, estate- and interest. Judgment went for plaintiff and defendant appeals.

The petition alleges that plaintiff is the owner and in possession of 32.71 acres, being all of the aforesaid forty-acre tract except six acres (hereinafter called tract A) in the southeast corner, described as follows: Beginning at the southeast corner of said quarter-quarter section, thence north along the east section line 38 poles, thence west 25.5 poles, thence south 38 poles to the south line of said quarter-quarter section, and thence east 25.5 poles to the beginning; and except 1.29 acres (hereinafter called tract B) on the west side of the said quarter-quarter section sold to a certain railroad company for a right of way.

The answer follows:

“Defendant for answer to plaintiff’s petition denies each and every allegation in said petition contained, except as hereinafter stated.

“For further answer the defendant says that he is the owner and is in possession of the following portion of the land described in plaintiff’s petition, that' is to say, the following described real estate in Jackson county, Missouri, to-wit:

“All that part of the southeast quarter of the northeast quarter of section 28, township 48, range 33,- which lies east and south of the Big Blue River; and that the plaintiff is not now and never has been in possession of this portion of said tract of land and that plaintiff has no right, title or interest therein.

“Further answering the defendant says that he does not claim any right, title and interest in the remaining portion of the land described in plaintiff’s petition and has never asserted any claim thereto. Wherefore defendant having fully answered asks to be discharged with his costs.”

The reply denies the allegations of new matter in the answer.

By diagrams and descriptions in the testimony, it is possible to construct a crude map, serving a useful purpose, thus:

Let BOMG represent the S. E. N. E. of 28-48-33. Let X Y represent the railroad track. Then the land included in the adjacent parallel lines will be the right of way, tract B. Let B F P D represent the six acres excepted, to-wit, tract A. Let O LK J H 1 represent the meandering channel of Big Blue River. Then the little tracts shown on the map, to-wit, 1, 2 and 3 (lettered C F L, K D J, and II A G, respectively), together with all of tract A lying east of the Blue, represent the land claimed by defendant; while the whole S. E. N. E., less tracts A and B, represents the land claimed by the plaintiff. The bone of contention is over the little irregular tracts, 1, 2 and 3, said to contain less than two acres.

It is agreed on all hands that Morgan Boone, Sr., is the common source of title; that he died in 1851; and that Morgan Boone, Jr., is his sole heir. That defendant is in possession and has fenced all of said southeast quarter of the northeast quarter lying east of the Big Blue, has cleared some or all of it, and put some of it ready for the plow. There has, however, been no such length of possession as would ripen it into a title by the Statute of Limitations.

The plaintiff, to show title in himself, introduced record evidence, as follows:

(1) A warranty deed from Morgan Boone, Jr., and wife, to R. B. Garnett; of date December 14, 1888, of record December 21, 1888, consideration $1962.60, and conveying part of said forty-acre tract, to-wit, “All that portion of the southeast quarter of the northeast quarter of section 28, township 48, range 33, lying on the west side of the Big Bine River, (excepting tract B) “which leaves the amount of land hereby conveyed, more or less, 32.71 acres.” This deed is recorded in Book B 330, at page-458.

(2) Also a warranty deed from said Garnett to one Bernard; dated September 21, 1888, recorded the same day, and conveying the same property hy the same description.

(3) Also a warranty deed from said Bernard to plaintiff; of date August 28, 1901, duly of record, consideration $2,500, and conveying the same property by the same description.

(4) Also a quitclaim deed from said Bernard to plaintiff; of date January 30, 1904, of record February 5, 1904 (no consideration disclosed), and conveying “all of the southeast quarter of the northeast quarter of section 28, township 48, range 33, except six acres in the southeast corner thereof.” This conveyance has in it the following narration: “This deed is meant to correct the description in a warranty deed to the same parties conveying the same property.”

(5) And also a conveyance called a “special warranty deed” from Morgan Boone, Jr., to plaintiff; of date April 15, 1904, acknowledged September 21 and put of record September 22 of the same year, consideration $1, and conveying said quarter-quarter section, except tracts A and B. This conveyance contains the following narration: “Containing 32.71 acres, more or less. This deed is made to correct a description of a deed from the grantor herein, Morgan Boone, to R. B. Garnett, date September 14, 1888, in Book ‘B’ 330, at page'458, of the recorder’s office of said county, in which deed grantor intended to convey all said quarter-quarter section, except six acres thereof sold off at the southeast corner, and the 1.29 acres in the railroad right of way.”

(6) The plaintiff (possibly a misprint for defendant) offered in evidence the files and decree in a suit of Thomas Lea, Plaintiff, vs. Morgan Boone et al., Defendants. The abstract shows, this was a suit to compel the conveyance of real estate. Attached to the petition was the following receipt:

‘ Received March 28, 1851, of Thomas Lea, $45 as a payment toward the land I sold to him on the east side of Big Blue, being a portion of township 48, range 33, and a part of the same land I purchased of John Maxwell as the agent and attorney of Lemuel Edwards, containing by estimation about six or seven acres which I sold to said Lea for $7 per acre.

“Witness my hand the date above.

“Morgan Boone.”

■ It seems that Morgan Boone, Sr., died before making a deed, and that the suit culminated in a decree (date not disclosed) investing Thomas Lea with title to tract A, except that the north boundary line is 26 % poles instead of 25% poles.

It was next admitted that the title of said Lea vested in the grantors of defendant.

The foregoing record proofs were supplemented by evidence from the assessor’s books of Jackson county, tending to show that from 1851 down to 1887 the quarter-quarter section in question was assessed in the following descriptions: '“Morgan Boone, 34 aeres, SE NE, ex. 6 a. SE cor. Sec. 28, T. 48, R. 33; and D. Taylor 6 a. SE cor. SE NE, Sec. 28, T. 48, R. 33.”

It was further supplemented by oral testimony, referred to further on.

To sustain his defense, defendant put in evidence conveyances as follows: (1) A warranty deed from Taylor et al. (grantees of said Thomas Lea) to defendant, dated April 28, 1902, conveying, with other lands, tract A by metes and bounds.

(2) Also a quitclaim deed from Morgan Boone, Jr., and wife to defendant, duly acknowledged and dated February 15, 1904, put of record February 18 of the same year, consideration $2, and conveying “all of that part of the southeast quarter of the northeast quarter of section 28, township' 48, range 33, which lies east and south of the Big Blue River.”

Defendant put in evidence assessments since 1888 showing that the SE NE was divided for assessment purposes into a tract lying north of the Big Blue River, assessed to Bernard, and one lying south of the Big Blue River assessed first to Taylor and then to defendant.

To further sustain the issues on his part, plaintiff went upon the stand as a witness, and also introduced the deposition of Morgan Boone, Jr.

By Morgan Boone, Jr., testimony was introduced tending to show in chief that he was .the only heir of his father, who died three months before he was born; that he sold some land in the SE NE to R. B. Garnett in 1888, understanding at the time that his father had sold something like six acres off of the forty-acre tract before; that he had paid taxes on thirty-four acres until he sold 1.29 acres to a railroad company, and thereafter paid on 32.71 acres; that after the sale to Garnett he claimed to have no interest in the SE NE. His purpose in making the deed to Garnett he indicated this way: “Well, I aimed to deed him the 32.71 acres that remained of the forty acres. . . . Well, what I owned there, with the exception of the railroad property and what had been sold off on the southeast side of the creek by my father.”

At this point in his deposition his testimony was objected to because “the deed is the besj; evidence and his purpose could not vary description in. deed.” The record shows the court’s attention was called to this and other objections in the deposition (noted hereafter), but it seems no ruling was made on them. Continuing, witness testified he did not know the exact location of the line of the six acres. He said: “I always, had supposed that the creek was the line;” had no idea there was any of the six acres on the west side. Over the objections of defendant’s attorney that “his intention could not change the description in the deed” (not ruled on by the court) he testified that lie intended to sell to Mr. Garnett all he had in. that quarter-quarter section, except the six acres and the railroad tract. Since he made the Gar-nett deed he had no possession or control of any part of the SE NE. Having heard that Mr. Garnett did not buy the property for himself bnt straightway deeded it to Mr. Bernard, he joked with him about making two deeds when one would have done.

On cross-examination, Mr. Boone said the negotiations leading up to the sale to Garnett were altogether with him; that the trade was talked over and Garnett seemed to know the land and witness did not go over the land with him; that at the time witness thought all that he owned in the SE NE was on the west side of the Blue River; that the negotiations were directed only to selling land on the west side of the Blue; that the land on the west side of the Blue was the only tract he sold to Garnett — that was witness’s understanding. “Q. And you did not sell him anything on the other side of the creek? A. No, sir. Q. You did not attempt to sell anything on the other side? A. No., There was nothing said about any of it being on the other side of the creek.” The deed itself called for all the land on the west side of the Blue. Witness read the deed before he signed it. Garnett wrote into the deed the number of acres, and added the words “more or less.” Witness understood that to mean that if there was more land on the west side of the Blue than 32.-71 acres, Garnett got it; and if there was less, he would simply get what was on the west side — quarter-quarter sections sometimes overrun. Witness supposed the center of the creek was the line. The abstract on which he sold did not contain the record of the six acres. Witness had always understood that all the., land he owned after selling the. six acres was on the west side, and had never understood differently until the controversy came up between plaintiff and defendant.

Referring to the quitclaim deed made to defendant in February, 1904, witness said Mr. Cable “ claimed that he did not have a good title over there and that it (said deed) would perfect his title.” Up to that time, witness “understood” and “always thought” that the six acres covered the land east of the Blue, and that the owners of that tract claimed all on the east side. The Blue had been recognized as the line ever since witness could remember. The creek ran in such a shapé that if he (witness) had anything over there, he never thought it worth anything; he claimed nothing there; he knew, nothing about the shape of the six acres; he had seen Weissenfels working on the west side of the Blue and cultivating up to the Blue, where it could be cultivated.

On re-direct examination, witness reiterated that in 1888 he was “aiming” to sell Garnett all the land he had left in the SE NE-. He further said that when he made his quitclaim deed to defendant in 1904, defendant brought him an abstract, but he did not take the pains to look it up. He did not think it necessary because he knew what defendant wanted; he wanted to “better his title,” and witness “intended to deed to him what he thought belonged to him.” Over the objection that it was not competent to contradict a deed by parol evidence of grantor’s intention in making it, he was allowed to testify that he did not intend to convey to defendant any land not already deeded to him or his predecessors in title. Continuing, he said that defendant paid him $2, his expenses in coming to Kansas City; that there was nothing paid for the land. He did not understand that any of the six acres was west of the Blue; and, over the objection “that parol testimony is inadmissible to contradict or vary the terms of a deed,” he was allowed to testify that he did not intend to let either of his grantees have any of the other’s land. There was testimony from him also that the Big Bine is a fishing stream and many fishermen resort there.

On re-cross-examination, witness reiterated that defendant, when he came to negotiate with him about the quitclaim in February, 1904, brought an abstract, and that he (witness) came to town to make the deed something like a week afterwards; that it was made to perfect Cable’s title on the east and south of the Blue, and witness intended to make it out that way and did not know at that time he owned any land on the east of the Blue; that when he made the original deed to Garnett he intended to convey to him all the land he owned west of the Blue; that there was no mistake made in the Garnett deed; he also testified: “I intended to convey to him all that I had.” But on being questioned whether there was anything said to him at the tim'e of the Garnett trade about conveying ail that he had there, he testified it was a supposition of his only, he did not know there was anything said about that. He further testified Mr. Garnett was an attorney, had been for years, and that he (Garnett) got up the abstract to the land, and traded around in real estate in that neighborhood.

Defendant introduced R. B. Garnett as a witness, who testified that he had experience as a real estate lawyer for twenty-five years, and at one time conducted a set of abstract books; that he prepared the deed from Boone to himself — either he or Mr. Bernard, his partner, did; that the negotiation in regard to the purchase had reference to a tract of land bounded on the east' side by the Blue; that he only bought the piece on tbe west side; never intended to buy any on the east side; never knew Mr. Boone owned any there; that one Corder acted as agent for Mr. Boone; that there was very little negotiation, since witness had the tract on his abstract boohs and knew about the land in that way. Witness was of the opinion that he had never talked with Mr. Boone, and negotiated entirely with Mr. Corder. The deed he got from Boone correctly described the land he bought.

On cross-examination, witness said Mr. Boone was in Saline county at the time, living there on a farm, and that he may have talked with him after the transaction. On the same day he got the deed from Boone he deeded it to his partner; had agreed with him to take the land before he got the deed, in order to get rid of a horse and buggy witness owned. That was all witness had in the transaction, to-wit, the sale of his horse and buggy. Witness executed a mortgage on the land for part of the purchase price, Bernard taking title subject to said mortgage. Referring to the consideration in his deed, to-wit, $1,962.60', and to the number of acres, to-wit, 32.71, witness said he expected they arrived at the total consideration by multiplying the number of acres by $60. His recollection was that they had a surveyor’s plat when they wrote the deed and the plat showed the number of acres, after deducting the six acres and the railroad right of way.

On re-direct examination, he testified that the surveyor’s plat did not show any land east of the Blue. Witness had an abstract and the abstract showed Boone’s land only on the west side of the Blue.

On re-cross examination, he said he did not pay much attention to the plat; didn’t know whether the administrator’s deed to Lea for the six-acre tract was shown on the abstract, and didn’t examine the abstract as an attorney.

By Mr. Donnell, defendant put in evidence tending to show that he knew the land for twenty years; that it was wild, and after the heavy timber was cut off it grew up in underbrush. In a negotiation between him and Mr. Boone relating to the purchase of the SE NE witness broke the negotiations off and refused to buy because he could- not get the land on ■the east side of the Blue. It was the common understanding in the neighborhood that the Blue River was the dividing line between Boone’s, land and the six-acre tract.

The defendant then took the stand in his own behalf and said he was a farmer and not familiar with land titles; had farmed all his life; that when he got his deed in 1902 he took possession of all the land on the east side of the Blue River. Then the following occurred:

“Q. Did you think at that time that your deeds called for all on that side?

“Mr. Jones: I don’t think it is material what he thought. The deed speaks for itself, a description by metes and bounds.

“The Court: I don’t think it is competent.

“Mr. Garnett: I don’t think any of this evidence is competent. I think it is as competent for the defendant as for the plaintiff.

“The Court: I don’t recall any testimony of that kind.

“Mr. Garnett: Mr. Boone testified in that way, but you haven’t passed upon it.

“The Court: The objection is sustained.

“To which ruling of the court the defendant at the time duly excepted.

“Q. Mr. Cable, you say that after that deed you took possession of the whole of that tract of land east of the Blue? A. Yes, sir.”

Continuing, witness said that a Mr. Anderson was encroaching on him on the- south; that thereupon among them they had a survey made. As we grasp it, this survey was also made in connection with the establishment of a road, and no one seems willing to father it or pay for it. When the surveyor ran out tract A as a parallelogram (with the northwest corner a little ways on the west side of the Blue) witness was not there, hut plaintiff was. Witness afterwards had a conversation with plaintiff and told him that he (witness) claimed no land on the west side of the Blue, hut did claim all on the east side. Plaintiff then said he claimed all of the land except the six acres; said he had bought it from Bernard. Witness asked where Bernard’s deed was. Plaintiff said Bernard had it. Witness told him, “You had better get your deed and examine it. ’ ’ Plaintiff then built some fence; witness tore it down. Witness then got his quitclaim deed from Morgan Boone, Jr., and fenced the land. When witness went to see Mr. Boone about the quitclaim deed, he took his abstract along and showed it to him, and told him he (witness) was in trouble; that plaintiff had fenced some of the land witness claimed; that there was a mistake in the deed; that he had talked with ‘the surveyor and the surveyor had explained to him where the Une was and was sorry witness was not present when the survey was made; that Mr. Boone took the abstract and said to witness: “I never owned no land across the Blue River at all; my father deeded that away before T was born;” and he said: “I will be too glad to give you a quitclaim deed if that will fix it.” “I told him I thought that was all that was required; that my abstractor told me to get a quitclaim deed.” Mr. Boone told witness that “he [Weissenfels] knows he has got no right on the east side of the Blue River. ’ ’ Witness paid Mr. Boone all he asked for the quitclaim deed.

On cross-examination, witness said in substance, among other things, that he saw the deed he got from the Taylors; that he bought the land through Whipple & Woods, agents for the seller; knew nothing about ■what the Taylors claimed to own; what made him think the Bine River was the line was that he saw the receipt the elder Boone gave to Lea, and it says six or seven acres; that in getting the quitclaim from Mr. Boone he didn’t know he was buying any land; he was just getting a quitclaim to' fix his title.

On re-direct examination, he further testified that he had heard plaintiff say more than once that his land was on the west side of the Blue River.

In rebuttal, plaintiff took the stand and denied having any conversation with defendant to the effect that he only owned land west of the Blue; never had any conversation with defendant about what he owned until the survey was made; that he understood from Mr. Bernard that defendant only owned six acres of land in the southeast comer; that he had paid his taxes according to the assessor’s book — first on thirty-four acres, and then on thirty-four acres less tract B.

On cross-examination, he said he never had read his tax-receipts, and did not know that he was assessed with land west of the Blue; that he had never read the deed from Bernard to him; that he had taken possession on the east side of the Blue up' north at the corner (this possession, we infer, relates to a private road or passway there); that he never knew his deed covered only land on the west side of the Blue until Cable told him, after the survey was made.

While there was some evidence that the banks of the Blue had caved in a place or so, yet there was no evidence worthy of the name that the main, well-defined channel of the Blue River had shifted since Morgan Boone, Jr., made his deed to G-arnett. As said, this stream had reached the dignity of a fishing' stream and was of so pronounced a character that when the survey was made it was not fordable and the surveyors waited for ice to form to cross and locate the northwest comer of tract A.

At the close of the evidence, plaintiff tendered two amendments to his petition on the theory that such amendments would accord with the proof. They were directed to charging that the quitclaim deed from Morgan Boone, Jr., to defendant of date of February, 1904, was obtained by fraud and deceit and asking it to be annulled. The court refused to' allow these amendments. Thereupon plaintiff offered to amend his replication and set up the same matter. This was also disallowed. Thereupon the court entered its decree, vesting all the southeast quarter of the northeast quarter in plaintiff, except tracts A and B.

On such record, ought the decree to be sustained ?

I. To sustain plaintiff’s theory that the original deeds from Boone to Garnett, from Garnett to Bernard and from Bernard to him (which deeds all refer to the Blue River as the east boundary of his land) gave him a title east of the Blue, plaintiff’s learned counsel argue that the porous and friable quality of the soil of Jackson county make the shifting of the channel of the Blue an easy matter and naturally to be expected to come to pass. The inference is that the stream, in the flux of time and water, has made a new channel and new banks further to the west, thus putting a portion of plaintiff’s original tract east of the Blue.

The trouble with this theory is there is no evidence showing the channel of the Big Blue shifted as argued, or shifted at all. To the contrary, there was testimony that large trees were growing on either bank; and the testimony tends to show that the waters of the Blue were now flowing within its ancient banks, serving a purpose of use and diversion along (and for) several lines, to-wit, fish-lines as well as boundary lines.

n. It is argued on defendant’s behalf that the naked record title to the little tracts 1, 2 and 3 was in Morgan Boone, Jr., at the date of Ms quitclaim deed to defendant, on February 15, 1904; tbat by tbat deed title passed to defendant; and that, as long as tbat deed stands, it is an insurmountable obstacle in tbe way of plaintiff’s recovery. As we see it, plaintiff’s learned counsel inferentially concede tbe force of-defendant’s position, but seek to parry tbat force by arguing tbat tbe deed was the product of fraud and deceit practiced on Boone and is without consideration, and, therefore, should be brushed away to let in plaintiff’s special warranty from Boone, executed some nmnths later. [Conveyance No. 5 in plaintiff’s chain of title.] To tbat end it is insisted tbat tbe chancellor should have permitted an amendment to tbe petition to conform to tbe proofs, setting up fraud and deceit as a ground for annulling tbat deed and seeking to set it aside; and, failing in tbat, we should treat tbe petition as amended and let tbe case ride off on tbe theory tbat tbe amendment was ingrafted upon tbe stock of tbe original petition, and tbe relief sought should be granted. But we cannot adopt plaintiff’s Mew for more reasons than one.

(a) In tbe first place, if we concede tbat tbe naked legal title to tracts 1, 2 and 3 bad not passed out of Boone prior to the date of tbat deed, and if we go further and concede tbat Boone was. defrauded by the execution of tbat deed to defendant, then tbe fraud touches Boone alone and tbe right of action on tbe fraud is not a vendible commodity to pass from one to another by dicker and sale. Tbe right to sue to set aside tbat deed was in Boone, remained in Mm (if anywhere) and did not pass by bis subsequent special warranty to plaintiff. [Smith v. Harris, 43 Mo. 557; Jones v. Babcock, 15 Mo. App. 149; Wilson v. Railroad, 120 Mo. 45; Haseltine v. Smith, 154 Mo. 404; Hayward v. Smith, 187 Mo. 464.]

Tbe general rule tbat a subsequent grantee may not maintain a suit to set aside a prior fraudulent deed from his grantor to another is subject to a main modification, viz.: if such subsequent grantee* had a prior, independent, equitable right in the subject of the grant, then he may maintain his bill to set aside the fraudulent conveyance of his grantor standing in the road of clearing up and perfecting his original, prior; independent, equitable right in the subject of the grant. [See cases, supra.} But such exception to the general rule does not help plaintiff in this case, because there is not a particle of substantive proof that plaintiff had a prior, independent, equitable right in any land east of the Blue River before he procured his special warranty deed from Morgan Boone, Jr. That deed was a junior conveyance. Defendant’s quitclaim was a senior conveyance. By that quitclaim, until set aside, Boone’s title passed from him. Therefore, there was nothing for the special warranty to operate on — Boone having nothing, could give nothing, ergo, plaintiff got nothing.

(b) In the second place, if we were persuaded to adopt the theory of plaintiff’s learned counsel and treat the case as if the petition was amended as prayed into a bill to set defendant’s quitclaim aside then we are met with the further, fact that there is no evidence of fraud or deceit practiced by defendant upon Morgan Boone, Jr. It is a commonplace of the law that to set aside so solemn an instrument as a deed for fraud requires proof of a character so high and stringent as to go beyond the mere preponderance of the testimony and remove all reasonable doubt. Here there is not only no proof of the exacting standard indicated, but there is no proof of any probative weight of any fraud, whatever, as said. Mr. Boone seems to be a just man and an amiable man. He does not say defendant misled him by a false suggestion or by a suppression of the truth. Apparently defendant told him the truth and all he knew of it. His desire in making defendant’s deed was to give him the land on the east side of the Blue Bdver because he thought his father deeded that land away, and that plaintiff was entitled to nothing east of the river. Subsequently, when he made his new deed to plaintiff, he took another view of the matter. But his ambulatory views could not change the operative effect of his former deed, unless the fraud and deceit of defendant was the moving cause in making it.

III. Over the objection of defendant, plaintiff was allowed to introduce evidence of Boone’s intent and purpose in making the Garnett deed, and his intent and purpose in making the quitclaim deed to defendant, and the special warranty to plaintiff. It is elementary that in the absence of mutual mistake or fraud and deceit and in the absence of any ambiguity in a deed the grantor may not whittle away the operative words of a grant by testifying to a condition of mind, what his intentions and purposes were. His act speaks louder than his intents and purposes. What he does weighs down what he thinks.

The consideration of a deed is open to investigation and explanation; but this rule (in cases of the character at bar) does not go so far as to let in proof overturning the operative words of a grant in a deed free from ambiguities, or varying or contradicting the deed itself or the descriptions contained therein. The consideration in defendant’s quitclaim from Boone was $2, and, therefore, small; but the consideration in Boone’s special warranty to plaintiff was $1, and, therefore, smaller. But neither the one consideration nor the other vitiated the deed as a conveyance. For the purpose of transferring title a quitclaim is as effective as any other deed, barring outstanding equities, not the subject of record, and barring recourse on covenants of warranty.

The foregoing propositions need no support from an array of authorities; hut one or the other of them, as pointed out by defendant’s diligent counsel in an excellent brief, may be found reasoned out and laid down in the following: Chew v. Kellar, 171 Mo. l. c. 225; Christ v. Kuehne, 172 Mo. l. c. 124; Edwards v. Latimer, 183 Mo. l. c. 626; Winter v. Railroad, 160 Mo. l. c. 176; Harding v. Wright, 119 Mo. 1; Strong v. Whybark, 204 Mo. 341.

Other questions discussed by. counsel are not deemed controlling in arriving at a just result and may be put aside.

In the view we take of this case, the decree does not do equity.

The cause is reversed and remanded, with directions to the lower court to enter a decree vesting the title to all of the southeast quarter of. the northeast quarter west of the Big Blue in plaintiff, subject to the right of way of tract B, and vesting the title in all said southeast quarter of the northeast quarter east of the Big Blue in defendant — nothing herein to be considered as an adjudication one way or the other upon the right of plaintiff to use a private road or passway to his land, crossing the Big Blue near the northeast corner of said southeast quarter of the northeast quarter, about which there was some testimony.

All concur.

On motion eor rehearing.

LAMM, J.

In a motion for a rehearing plaintiff’s learned counsel, among other reasons for granting one, set up the following contention, viz.: ‘ ‘ Furthermore, it is proper to observe here, that we claim mistake in the execution of the quitclaim deed as well as deceit” —the quitclaim deed referred to being the one from Boone to defendant. If counsel by that contention mean to say that they sought to amend the pleadings so as to base a right to avoid the deed on mistake as well as deceit, they inadvertently fall into error. No such offer was made. The first amendment offered was this: “Plaintiffs further state that the quitclaim deed from Morgan Boone and wife to the defendant Cable, dated the 15th of February, 1904, was procured by deceit and misrepresentation and without consideration, and that same constitutes an apparent cloud on the title and asks the same be removed.” The second amendment offered, was like unto the first. If counsel mean that in their brief here they claimed mistake in the deed as a reason for sustaining the decree, that is true. But it is elementary that a decree must be responsive to the pleadings and must be within their lines. [Black v. Early, 208 Mo. 281, and cases cited.] So, too, it is rudimentary that a mistake furnishing ground for equitable interference must be a mutual mistake of fact, etc. [Chrisman v. Linderman, 202 Mo. l. c. 613.] There was no substantial evidence to base such form of mistake upon, and, there being no offer of such amendment, the question of mistake is in the air. If the evidence had warranted the amendment, and if the amendment had been offered, the decree being for plaintiff, we could have treated the case as if the amendment had been made. [Young v. Glascock, 79 Mo. l. c. 579, et seq.]

, The motion for a rehearing is overruled.

All concur.


author: VALLIANT, P. J.

text:
    A. L. WHITE, Appellant, v. FRANK SCHROETTER et al.
    Division One,
    December 24, 1907.
    1. EJECTMENT: Record Title: Equity. Where the suit is one in ejectment, defendant’s record title cannot be set aside as being the result of an attempt by defendant’s grantor to defraud his creditors. The action being purely one at law, and no equity being pleaded, the record title cannot be thus collaterally attacked.
    2. -: -: -: Evidence. Plaintiff sued in ejectment to recover forty acres of land, and produced in evidence a judgment against defendant’s father, rendered in 1902, and an execution levy and sheriff’s sale and deed to plaintiff. Defendant produced a duly recorded deed dated in <1894, from defendant’s father to him, expressing a consideration of love and affection and the assumption of a mortgage debt of $1,000. Held, that defendant was entitled to recover; and that oral evidence by defendant that a further consideration of defendant’s deed was an agreement to support his father in his old age, and a fulfillment of that agreement, and oral evidence by plaintiff that defendant at the date of his deed was a minor, and that the land on which the father resided as his homestead was worth more than $1,500, and that the father was in debt, was all incompetent, since no equity was' pleaded.
    Appeal from Barry Circuit Court. — How. PL. G. Pepper, Judge.
    Affirmed.

      French & Mayhem for appellant.
    (1) In suits in equity, the appellate court is not bound to follow the findings of the lower court, but where the evidence is all before the appellate court, it will review such evidence and arrive at its own conclusions, upon the facts. Courtney v. Blackwell, 150’ Mo. 245: Parker v. Vanhoozer, 142 Mo. 621; State ex rel. v. Jarrott, 81 S. W. 879. (2) All the father could convey in this transaction was his equitable interest, all the sons could purchase was the equitable interest of the father. The equitable interest was bound to be, under the facts in this case, a voluntary conveyance, which equitable interest so received, cannot.be held as against creditors. It makes no difference whether the sons knew it or not. The evidence taken with the surrounding circumstances shows that they had knowledge of the motive of the transaction; and that they knew that the motive upon the father’s part was to defraud his creditors. But it is invalid regardless of the intention with which it was made.' Dunlap v. Mitchell, 801 Mo. App. 393; ft. S. 1899, sec. 3398; Snyder v. Free, 114 Mo. 360; Needles v. Ford, 167 Mo. 495.

      George é Landis for respondents.
   VALLIANT, P. J.

Plaintiff sues .in ejectment for the possession of forty acres in Barry county. Defendant’s answer was a general denial except that he admitted possession. At the trial a jury was waived and the cause was tried by the court. The judgment was for the defendant and the plaintiff appealed.

It was admitted that Adam Schroetter, the father of defendant, was the common source of title. The plaintiff’s evidence was as follows: A judgment rendered in the circuit court of Barry county in favor of one Sheets against Adam Schroetter, September 4, 1902, for $661.34; execution on that judgment, levy and sale of this land by the sheriff February 12, 1903, at which sale the plaintiff became the purchaser and received the sheriff’s deed which was in due form.

The evidence for defendant was a warranty deed from Adam Schroetter and wife to defendant conveying this land dated February 13, 1894, duly acknowledged and recorded. The consideration mentioned in the deed was love and affection and one dollar, subject to a debt of $1,000 secured by deed of trust on eighty acres, of which the forty so conveyed was one-half, and the assumption by defendant of $500 as the one-half of that debt applicable to his forty acres. Then defendant introduced oral evidence to the effect that a further consideration for this deed was an agreement by himself and his brother John on the one part and his father on the other that they would take care of their father and support him during the rest of his life. ■ And there was testimony tending to show that they were carrying out that agreement, and that defendant had executed a new mortgage on the forty acres, and with proceeds of that, had paid his share of the original $1,000 mortgage.

Contra, the plaintiff introduced evidence to show that defendant and his brother were at the date of the alleged agreement minors and could not make such a contract; also that the land was, when taken in connection with forty acres on which Adam Schroetter resided and which constituted his homestead, worth more than $1,500, and that the old man was in debt. There was some other testimony as to paying taxes, etc., but it is unnecessary to mention it.

All the oral evidence was incompetent. The title to this forty acres passed to the defendant by the deed from Adam Schroetter and wife in February, 1894, more than eight years before the Sheets judgment under which plaintiff claims was rendered, and the records so showed.

Appellant in his brief refers to “suits in equity” and, as if this were such a suit, argues that the deed from father to son should he set aside as having been made to defraud creditors. But this is not a suit in equity, it is an action at law; there is not a trace of equity in the pleadings. The defendant’s deed cannot be attacked collaterally, it cannot be assailed except in a proceeding in equity. We do not mean to imply that the evidence would have justified the setting aside of this deed even if this had been a suit in equity.

In the face of the defendant’s record title the court could have rendered no other judgment than it did.

The judgment is affirmed.

All concur.