author: YALLIANT, J.

text:
    MARTHA V. BUCHER, Appellant, v. GEORGE HOHL et al.
    Division One,
    November 21, 1906.
    1. ATTORNEY AND CLIENT: Lands Acquired by Attorney: Voluntary Conveyance: Divorce: Summons by Publication: Alimony and Sale. In 1881 a husband and his wife, for an expressed consideration of $2,700, conveyed 120 acres of land to her sister, and such sister for the same expressed consideration, conveyed the land to the wife, both conveyances being warranty deeds. Later he brought suit to set aside the deeds, and at the same term another suit for divorce from her. These suits he afterwards dismissed, abandoned her, left the State, and in 1884, through the same attorneys who brought his suits, she brought a suit for divorce, alleging that her husband was a nonresident, the summons being by order of publication. He made default, and she was granted a divorce, and by way of alimony one-half of the same land was awarded to her, the other half being awarded to him. ' Commissioners were appointed, and 75 acres, the land in suit, were set off to him, but he never appeared to take possession. The same year a monetary judgment was rendered against him in the circuit court,, and execution was levied on the 75 acres, and at the sale her attorneys became the purchasers, and subsequently sold the land to her brother-in-law and in payment received a mortgage note; which they now hold. They and he are defendants in this suit to quiet title. Held, that the attorneys could not acquire title to her property under these circumstances, and whatever interest they hold therein, she is entitled to have' back from them, unless she is estopped by acquiescence in the alimony decree, or barred by laches or by limitations, or the brother-in-law is an innocent purchaser for value.
    2. -: -: Alimony in One’s Own Land: Acquiescence: Estoppel. Where the evidence shows a case of implicit confidence and trust by the female client in her attorneys, in the divorce suit in which one-half of her own lands were awarded to her as alimony and the other half to her defaulting husband, which half so decreed to her husband her attorneys acquired at a subsequent sheriff’s sale under execution to pay his debts, they cannot avail themselves to their advantage and to her disadvantage of her acquiescence in the divorce decree; as to them, she is not estopped to claim as her own whatever interest they acquired in the land.
    3. -: Limitations: Married Woman. At the time of the decree in the divorce suit by which one-half of the plaintiff wife’s land were decreed to her defendant husband, who made default, that half was not in the actual possession of any one, and he made no effort to take possession and so far as the record shows did not know it had been decreed to him. Subsequently it was sold under execution against him and her attorneys bought it, and after her subsequent marriage rented it to her and her then husband, and they took possession under their lease. Held, that the Statute of Limitations did not begin to run against her at that time, for she was then a married woman. Nor did it run in favor of their grantee as against her, for the same reason.
    4. -: -: Laches: Subsequent Grantee. The defense that a claim is stale is purely an equitable one, and unless there is some natural justice back of it, a court of equity will not entertain it. As to her attorneys, the plaintiff’s claim is not stale, for up to the time she brought this suit she trusted entirely to them, and did not know that one-half her land could not be decreed away to her husband in her divorce suit. But they sold the land to her brother-in-law, who knew of the conveyance made in 1881 to her by her husband through her sister, as intermediary, of all the land, but was without notice that the decree in the divorce suit setting off to her husband one-half the lands so conveyed to her was not binding, and she saw him, after having purchased that half, go on it and make lasting and valuable improvements upon, it and occupy it for more than ten years. Held, that, as to him, her claim, though, she be a married woman, and beyond the reach of the Statute of Limitations, is stale, but as he was not wholly innocent, he should be required to settle with her for the purchase price yet unpaid, rather than with her attorneys, his grantors.
    Appeal from Jefferson Circuit Court. — Ho». Frank R. Bearing, Judge.
    Reversed and remanded (with directions).

      W. A. Kennedy and Mooneyham, <fc Gregory for appellant; A. T. Brewster of counsel.
    (1) A divorce proceeding is a proceeding in personam; in order that a court may acquire jurisdiction in proceedings in rem, there must be an actual seizure and possession of the res, or equivalent proceedings had by the officer of the court to bring the subject-matter before the court. And in the divorce suit brought by Mrs. Mabee, as no' demand was made on lands, but the action brought was purely personal, the court had acquired no1 jurisdiction (of her lands.) Beyer v. Trust Company, 63 Mo. App. 521; Smith v. McCutchem, 38 Mo. 415; Latinee v. Railroad, 43 Mo. 105; Wilson v. Railroad, 108 Mo. 588; Boswell v. Otis, 9 How. (U. S.) 336; Pennoyer v. Neff, 95 U. S. 714; Britton v. Steber, 62 Mo. 370; Wood v. Boots, 60 Mo. 546. (2) It is the duty of an attorney to disclose to his client all matters pertaining to the subject of his employment, and the highest degree of good faith and fairness is required of the attorney; the courts view such transactions with the utmost scrutiny, and if they present even a suggestion of unfair dealing, the burden is on the attorney. 4 Cyc. Law and Proc., 960 and 961; Mills v. Mills, 26 Conn. 213; Cox v. Delmas, 99' Cal. 104; Howell v. Baker, 4 John. Ch. 118; Haight v. Moore, 37 N. Y. Super. Ct.-161. The relation of attorney and client is one of especial trust and confidence in the attorney. Aultman, Miller & Co. v. Coring, 76 Mo. App. 70; Davis v. Kline, 96 Mo. 401; Eoff v. Irvine, 108 Mo-. 378. An attorney can in no case buy and hold otherwise than in trust any adverse title or interest touching the thing to which his employment relates. Davis v. Kline, 96 Mo. 406; Baker v. Humphrey, 101 U. S. 494. Counsel who has been consulted about title to land will not be permitted to purchase an outstanding one and,set it up in opposition to his client; if he does, it enures to the benefit of the client. Davis v. Kline, 96 Mo. 406; Weeks on Attorneys, sec. 274; Eoff v. Irvine, 108 Mo. 383. The record that discloses the relation of attorney and client touching a levy upon the real estate and purchase by the attorney is a sufficient notice to a subsequent purchaser from the attorney that it enures to the benefit of his client. Briggs v. Hodgdon, 78 Me. 514. Misrepresentation of the law is something binding on the party who makes it. This is true in transactions between parties occupying fiduciary and confidential relations. Hickman v. Hickman, 46 Mo. App. 506; Bigelow on Fraud, 488; Moreland v. Atchison, 19 Tex. 311. The right to relief seems to be admitted where “a party should unintentionally deceive another by misrepresenting the law to him, or knowing him to be ignorant of it knowingly take advantage of his ignorance for the purpose of deceiving him.” Hickman v. Treat, 78 Me. 506; Abott v. Treat, 78 Me. 126; Weeks on Attorneys, sec. 274; Wilber v. Robinson, 29 Mo. App. 157; - Ward v. Brown, 87 Mo. 468; Bliss v. Pritchard, 67 Mo. 181; Jackson v. Outlaw, 56 Miss. 541. (3) Where an attorney becomes aware of a defect in his client’s title to lands, his purchase of an outstanding title will enure to his client. Weeks on Attorneys, secs. 277, 279; Aultman, Miller & Co. v. Loring, 76 Mo. App. 75; Eoff v. Irvine, 108 Mo. 378. (4) The intent of all Statutes of Limitation is to cut off old, stale claims. The spirit of the limitating law is that he that hath rights and is careless or slothful in asserting them should be forever barred of claiming them in courts of justice. But Statutes of Limitation go only to the remedy and do. not extinguish the cause of action. Morgan v. Railroad, 51 Mo. App. 523; Freeman v. Hill, 45 Kan. 435. Where the Statute of Limitations is pleaded in bar to an action, plaintiff may avoid the bar by replying that the cause of action has been fraudulently concealed from his knowledge by defendant until a period within the time limited by the statute before the action was commenced. Turnpike Corp. v. Fields, 3 Mass. 201. To hold that by concealing a fraud or by committing a fraud in such a manner that it conceals itself until such time as the party committing the fraud could plead the Statute of Limitations to protect it, is to make the law, which was designed to prevent fraud, the means by which it is made successful and secure. Bailey v. G-lover, 88 U. S. 21; Tigers v. 0 ’Bannon, 118 111. 334; Aultman, Miller and Co. v. Adams & Sherlock, 35 Mo. App. 508; Aultman, Miller & Co. v. Loring, 76 Mo. App. 73. When a relation of trust and confidence exists between the parties so as to render it the duty of defendant to disclose the true state of the case to the plaintiff, the statute commences running only from the time of the discovery' of the fraud or deceit. Wilson v. Ivy, 32 Miss. 233. (5) In order for a purchaser to be an innocent purchaser he must purchase in good faith, for a valuable consideration and without notice, and if any of these elements is wanting he is not aninnocentpurchaser. Young v. Schofield, 132 Mo. 650. (6) The law imputes actual notice to one who either knows of the existence of an adverse claim or title or has the means of knowing and fails to use it. The prior recorded deed in the case at bar, of which defendants had knowledge, is such actual notice. Speck v. Biggin, 40 Mo.. 405; Muldron v. Robinson, 58 Mo. 179; Meier v. Blume, 80 Mo. 179; Sensenderfer v. Kemp, 83 Mo. 581; Taafa v. Kelley, 110 Mo. 127; R. S. 1899, sec. 924.

      E. J. Bean for respondents.
    (1) There is no evidence of any fraud in this case. (2) The purchasers of the land bought it at the court house door, at public sale, in good faith, and paid the sum of four hundred and seventy-five dollars therefor on January 16,1885. (3) The circuit court had the power to award specific property to appellant for alimony, and the decree of the circuit court is valid and binding on appellant herein. Sec. 2927, R. S. 1899; Crews v. Mooney, 74 Mo. 26. (4) Appellant is estopped from claiming title to the land in question because she accepted the benefits of the decree of the circuit court giving her alimony, and’ because she has stood by for many years and witnessed the transfer of the property and improvements made thereon without ever claiming title to the same. (5) Appellant’s claim is barred by the Statute of Limitations.
   YALLIANT, J.

This is a suit to quiet title to 75 acres of land in Jefferson county. The trial in the circuit court resulted in a finding and judgment for the defendants, from which judgment the plaintiff'has appealed.

Both parties claim title derived from John Mabee who, it is agreed, owned the land in 1880 and on down until it passed either to the plaintiff in 1881, or to defendants in 1884.

April 5, 1881, plaintiff was the wife of John’ Ma-bee ; on that day John Mabee and wife conveyed a tract of 120 acres, of. which the 75 acres in suit were a part, by warranty deed, to Elizabeth M. Simon for the consideration, as expressed, of $2,700, and on the same day Elizabeth M. Simon for the same consideration, as expressed, by warranty deed conveyed the 120 acres to the plaintiff. These deeds were duly recorded and they constitute the plaintiff’s title.

In January, 1884, plaintiff brought suit against her then husband, John Mabee, for divorce, praying also for alimony. Mabee being then a non-resident was given constructive notice of the suit by publication; he made default, the plaintiff obtained a decree of divorce, and in the same decree it was adjudged that she should have as for her alimony one-half, according to value of the 120 acres, and commissioners were appointed to make partition of the same which was done, setting apart to her husband the 75 acres now in suit and to her the remaining 45 acres, which contained the improvements. Plaintiff went into possession of the part allotted to her, but Mabee never appeared to take possession of the part set off to him; if he ever heard of it the record does not show it. In 1884 a judgment was rendered against Mabee in the circuit court of that county for about four hundred dollars, in favor of certain parties strangers to this record, execution issued and under it the sheriff sold the 75 acres in question as the property of Mabee and executed to the purchasers a sheriff’s deed therefor. That is the title under which defendants claim.

Thus it will be seen that as the title stood on the record at the date of the decree of divorce, the plaintiff was awarded one-half of her own land for her alimony and the rest was by the decree given to her husband, she seeks now to have a decree vesting the title in herself to that part of her land which was given to her husband, alleging that the decree in that respect was obtained by fraud.

The following appears from the defendants’ evidence: The attorneys for the plaintiff in the divorce suit had been attorneys for Mabee in a suit filed by him to the September term, 1881, to set aside the deeds of April 5,1881, from Mabee and wife to Simon and from Simon to plaintiff, which suit after having been instituted was voluntarily dismissed. To the same term of court Mabee, by the same attorneys, brought suit against this plaintiff, his then wife, for divorce, which suit Mabee also voluntarily dismissed. Afterwards Mabee became a non-resident of the State, the plaintiff still residing in Jefferson county, and in 1884 she employed these same attorneys to bring suit for her against Mabee for divorce on the ground of abandonment, which they did, and it was through their instrumentality in that suit that the divorce above mentioned was obtained, along with a decree giving her one-half of her own land as alimony. And thereafter in January, 1885', when the 75 acres so allotted to Mabee were sold under execution against him, these same attorneys were present and became with another the purchasers and took the sheriff’s deed and in 1890 the other conveyed his interest to them. In 1891 these attorneys sold and conveyed the land to their co-defendant Hohl, taking' back from him a deed of trust to their co-defendant Moss as trustee to secure the payment to them of the note given for the purchase money, $750', which they still hold, nothing having been paid on it but the interest ; they are co-defendants with Hohl in this suit seeking to maintain their title under that deed of trust.

There is not in this record the suggestionof one single fact going to impeach the validity of the deeds from Mabee and wife to Simon and from Simon to plaintiff of date April 5, 1881. True it is, the attorneys testified that after investigation they were satisfied that those deeds could not be sustained, but they stated no fact on which to base such opinion and the opinion itself was given in the face of the fact that Mabee himself, while acting under their advice, voluntarily dismissed his suit brought to set the deeds aside and that he finally abandoned his wife and moved to another State.

An attorney cannot acquire title tohis client’s property in this State under the circumstances above stated. [Aultman, Miller & Co. v. Loring, 76 Mo. App. 70; Davis v. Kline, 96 Mo. 401; Eoff v. Irvine, 108 Mo. 378.]

Under the undisputed facts as above stated there can be no doubt of tbe plaintiff’s right to have back from her attorneys the interest that they hold in that portion of her land which was improvidently decreed away in the divorce suit unless she is estopped from asserting her right by acquiescence in the decree1, or has slept so long that her suit has become stale, or she is barred by the Statute of Limitations or there is an innocent purchaser for value whose rights a court of equity ought to protect.

We will first consider these feátures of the case as they bear on the rights of the plaintiff as against the defendants who were her attorneys.

The plaintiff testified that from the time she brought the divorce suit until just before this suit was brought she never consulted any other attorney and that she trusted entirely to her attorneys in that suit; that while the suit for divorce was pending one of these attorneys told her that “they [meaning her husband and his friends] were fighting me hard, but that he [the attorney] was doing the best he could for me;” and that after the decree he came to see her with the men who were appointed to divide the land and told her that that was the best he could do for her. The attorney himself on that point testified to substantially the same effect; he said:’“I told her I doubtedherbeing able to get a divorce if they fought her, and I advised her that I didn’t think she could hold the property; I told her they might let her off with part of the property and take a divorce.” The divorce decree was by default. One of the attorneys testified that Mabee was “a little bit of a fellow and a sort of an imbecile;” that after he left the State an uncle of his came to look after his affairs and that it' was with this uncle that they [the attornéys] agreed on the'terms of the divorce decree. There was some evidence for defendants to the effect that in the petition for divorce it was stated that the plaintiff was without means and that Mabee was in possession of the 120 acres; but the papers in that case were lost and no one attempted to state with certainty what the contents of the petition were except that the application for divorce was based on abandonment. Plaintiff testified that she never knew what the petition contained. Bnt as between the plaintiff and her attorneys in that suit the latter were more responsible than she for the statements in the petition.

The evidence shows only a ease of implicit trust and confidence in her attorneys, and. if she acquiesced •in that decree it was because her attorneys told her it was the best that could be done for her. Under those circumstances her attorneys cannot avail themselves to their advantage and to her disadvantage of her acquiescence; as to them she is not estopped from claiming her own.

As to the plea of the Statute of Limitations the evidence for the defendants does not show that, they took possession of the land as soon as they bought at the sheriff’s sale. It was not at that date improved, the improvements were all on the 45 acres set off to plaintiff, and as to the 75 acres set off to Mabee there was no actual possession then taken'. The witness in his own behalf on that point said: “I tried to get somebody to go onto our part of it and exercise the right of ownership over it. She [meaning the plaintiff] married Mr. Bucher about that time and I rented the property to them, they lived there two or three years. They had the property right along until we sold it to Mr. Hohl.”

In so far as that testimony is intended to show a recognition by the plaintiff of the title her attorneys acquired to the land, it must be taken in connection with what has been above said on the subject of her acquiescence in the decree that gave her husband half of her land in the divorce suit while he in his own behalf was making default and claiming nothing.

The significance of that testimony, however, as it bears on the question of the Statute of Limitations is that it shows that at the time the defendants’ actual possession began the plaintiff was a married woman; therefore, the Statute of Limitations did not begin to run against her.

As to the staleness of the plaintiff’s claim this is to be said: The defense that a claim is stale is purely an equitable one and unless there is some natural justice back of it a court of equity will not entertain it.

But the title of the defendant Hohl rests on a better foundation than that of his co-defendants from whom he purchased, although when he purchased he was not altogether ignorant of the title of the plaintiff. Hohl’s wife and the plaintiff and Miss Elizabeth Simon, who was the medium of the conveyances of April 5th, 1881, were sisters, and he had knowledge of the transaction and knew that the plaintiff had acquired title by those deeds. But he was not responsible in any degree for the decree in the divorce suit and, without notice to the contrary, he would have a right to presume that the title as declared by that decree was binding on the parties to the . suit.

The Statute of Limitation has not run in Hohl’s favor because when he went into possession in 1891, the plaintiff was a married woman and has since so continued. But as to him the plea of estoppel has more force. The plaintiff saw him go on the land and make valuable improvements, clearing land, building houses, fences, etc., as he says to the extent of $2,500 value, and so continued for more than ten years. Under those circumstances, no- just ground appearing to question his good faith, equity will hold that the plaintiff, married woman though she be and beyond the reach of the Statute of Limitations, ought to have awakened sooner to her rights and have asserted them before Hohl had spent his time and labor and money improving the land. As to him she should not now be heard to claim the whole 75 acres in suit. Still Hohl is not altogether innocent. He had notice of the plaintiff’s title under the deed of 1881, and he knew that his co-defendants from whom he purchased were her attorneys in the divorce suit and that their only title was the sheriff’s deed under the execution against Mabee. It will not, therefore, be inequitable to require him to settle with her instead of her attorneys for the purchase price of the land and derive his title through such settlement.

The judgment is reversed and the cause remanded to the circuit court of Jefferson county with directions to enter a decree divesting the defendants of all title to the 75 acres of land described in the petition and vesting the same in the plaintiff subject to the right of the defendant Hohl to at any time within six months of the date of the decree pay to the plaintiff the sum of $750 and interest at six per cent per annum from the date of the filling of this suit, and that upon making such payment the title to said land to revest in him, the said Hohl, free of all claims of the parties to this suit and that defendants pay the costs in the circuit court.

All concur.


source: Caselaw Access Project

author: BRACE, P. J.

license: Public Domain

text:
    HANS CHRISTIAN PETERSEN v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    November 21, 1906.
    1. NEGLIGENCE: Driving Along Track. There is no inexorable rule of law that requires a traveler in a closed vehicle going along a public street on which is a railway track, to look behind him, for an approaching car, of which he has no warning and of the proximity of which he has no knowledge, every time his horse or vehicle may be about to go on, along or across the rails of the track.
    2. -: -: Not Looking Behind.. Plaintiff and his uncle, in a closed vehicle, drawn by a single horse, driven by the uncle, drove down a cross street, and looked for a car, and seeing - none within a block, although they might have seen one five or six blocks away, turned into the street, and did not look back again, but drove ahead near the rails of the track, and as they were in the act of crossing the track diagonally, forty or fifty feet from the crossing, defendant’s car struck their vehicle, and the horse ran away, injuring plaintiff. The motorman could have seen the vehicle 300 feet or more before he struck it, but did nothing more than slow down the car, which had been running 20 miles an hour, to 6 or 8 miles, according to his testimony, or 30 or 40 miles, according to plaintiff’s evidence, but did not ring the bell or sound the .whistle or attempt to stop. Held, that the demurrer should not have been sustained on the theory that plaintiff and his uncle could have seen the car six or seven blocks away had they looked that far and didn’t, or on the theory that it • was their duty, after they began to drive along and across the track, to have looked back for the car approaching from behind, for, even conceding the negligence of the uncle (the driver), which is not done, plaintiff ought to recover, for two reasons: first, the car could have been stopped, by the exercise of ordinary care, after the motorman discovered their peril; and, second, the negligence of the uncle could not be imputed to the plaintiff.
    3. -: Of Another: Imputable to Plaintiff. A mere passenger in a vehicle, exercising no control over the driver or' its movements, is not to be held responsible for the negligent act of such driver in driving the vehicle on the track in front of a street car.
    ' 4. MULTITUDINOUS INSTRUCTIONS. Appellant cannot complain of the large number of instructions if the most of those given were asked by him.
    5. INSTRUCTIONS: Modification. Appellant cannot complain of modification of his instructions if no such modification appears in the abstract.
    6. -: Negligence, Instructions for plaintiff, set out in the opinion, are held to fairly and clearly present to the jury the issues of negligence in a case wherein he was a passenger in a vehicle which driven by his uncle proceeded along a street railway track and in attempting to cross said track was struck by a car approaching from behind at an excessive rate of speed, without signal or warning, which collision caused the horse to run away and the plaintiff to be injured.
    7. -: Verdict for Right Party. Although the instructions given may not be wholly free from criticism, yet if the verdict is manifestly for the right party, the judgment will not be re- ■. versed.

      8. VERDICT: Nine Jurors: Signed by Foreman. A verdict in a civil case signed by nine of tbe jurors, is not defective because tbe first juror wbo signed it attached tbe word “foreman” after bis signature.
    Appeal from Cole Circuit Court. — So». Jas. E. Hasell, Judge.
    Appibmed.

      Boyle & Priest and Morton Jour dan for appellant.
    (1) The court should have given the instructions in the nature of a demurrer to the testimony and directed a verdict at the close of the plaintiff’s case. Kreis v. Railroad, 148 Mo. 321; Roenfeldt v. Railroad, 180 Mo. 554; Payne v. Railroad, 136 Mo. 534; Ross'v. Railroad, 88 S. W. 144. (2) The court should have directed a verdict at the close of the entire case and given the instruction asked by the defendant at that time, in' the nature of a demurrer to the testimony. Roenfeldt v. Railroad, 180 Mo. 554; Kreis v. Railroad, 148 Mo. 321; Payne v. Railroad, 136 Mo. 534; Ross v. 'Railroad, 88 S. W. 144,. (3) The great multitude of instructions given by the court were confusing and misleading, and because of such erroneous conduct upon the part of the court in giving to the jury in a case of this character twenty-seven instructions, the judgment should be reversed. Sidway v. Live Stock Co., 163 Mo. 342; Hickman v. Link, 116 Mo. 123; Crawshaw v. Sumner, 56 Mo. 517. (4) The first instruction given by the court was error, for the reason that it was too general and it licensed the jury to find a verdict against the defendant because of any omission in the performance of the" duty of the motorman which might be found by the jury, whether it was one of the acts of negligence contained in the petition or not. Murray v. Railroad, 176 Mo. 183; Hartman v. Railroad, 87 S. W. 88. (5) The court committed error in submitting to the jury the question of ordinary care upon the part of the plaintiff, to avoid the danger and injury, because there was no testimony upon which to predicate such instruction. De Donato v. Morrison, 160 Mo. 581; Class v. Celvin, 80 Mo. 297; Ely v. Railroad, 77 Mo. 34. (6) Instruction 6 is indefinite and uncertain and misleading. The petition avers affirmatively the ordinary care upon the part of the plaintiff, and yet this instruction tells the jury in effect that the burden of proof is upon defendant to show a want of care upon the part of plaintiff. Liese v. Meyer, 143 Mo. 547; Railroad v. Wishert, 89 S. W. 460'. (7) Instruction 7 tells the jury that “if the plaintiff was thrown out and was injured as a natural and direct result of the running away of his horse, and of said collision, then the said injury to plaintiff was a direct consequence or result of said collision.” This is confusing and misleading. (8) There is no verdict in this case, such as is contemplated by the law. The verdict returned into court was signed by eight members of the jury in their individual capacity as jurors. That it was not the verdict of the jury is shown by the affidavits filed with the motion for new trial of three members of the jury. Under instruction 9, it was the duty of the jury, if nine of the number agreed upon the verdict, to sign the same. While it is true L. D. Cordon signed it, it was as foreman, he signed it in his official capacity, and not as one of the nine. That he had no right to sign a verdict as its official head and for the rest of the jury is shown by the affidavits of Harding, Lockett and Price. For this reason, the judgment rendered upon this alleged verdict should be reversed.

      Richard F. Ralph and Barclay, Shields & Fauntleroy for respondent.
    (1) The instruction in the nature of a demurrer to the evidence could not properly have been given. There is conclusive evidence of several acts of negligence-of defendant. Defendant’s motorman admits that he did not ring the bell when he “saw the buggy coming towards the track. ’ ’ Such negligence is actionable. Schmidt v. Railroad, 163 Mo. 645. The same motorman, as a witness for defendant, admitted that he saw, in a position of danger (near enough to the track to be hit) the buggy in which plaintiff was riding, at a distance of 25 or 30 feet in front of the car; that he could have stopped the car at the rate at which it was then going (six miles per hour, according to him) within a distance of 10 or 15 feet. He also states that he did not stop the car in time to avoid the collision, but that it ran 90 feet beyond the point of contact after the car hit the buggy. Such negligence is actionable. Defendant had no exclusive right to the public street. Kennayde v. Railroad, 45 Mo. 262; Klockenbrink v. Railroad, 172 Mo. 678; Schafstette v. Railroad, 175 Mo. 142. (2) No demurrer to the evidence should have been sustained at the close of the entire case for the reasons above given and a further reason: there was no evidence of negligence on the part of the plaintiff as a matter of law, and the jury found that he was not negligent as a matter of fact. The question of plaintiff’s negligence was obviously a question of fact in the circumstances. Peterson v. Railroad, 114 Mo. App. 374; Kellny v. Railroad, 101 Mo: 67; Fearons v. Railroad, 180 Mo. 208. (3) The first instruction for the plaintiff was within the allegations of the petition. It was furthermore supported by the admissions of the defendant’s witness, the motorman, and was correct in point of law. It is actionable for a street car to' run down a buggy, moving in the same direction in a public street, when by ordinary care in operating the car the collision can be avoided. Burén v. Railroad, 104 Mo. App. 224; Esler v. Railroad, 109 Mo. App. 580: (4) It would have been serious error if the court had undertaken to decide that pláintiff was guilty of negligence. He was a green foreign boy, sixteen years old, only a few months in this country, sitting in a buggy beside his uncle, his guardian, who- was driving. Under repeated decisions of this court (which settle the law beyond question) plaintiff was not chargeable with the negligence of his uncle, who was driving the horse; to say nothing of the difference in their ages and relations to each other, in respect to the matter of control. Plaintiff appears to have acted with reasonable prudence, the jury so found under instructions of both parties. No negligence of the driver of the buggy can properly be imputed to the plaintiff. Becke v. Railroad, 102 Mo. 544; The Bernina, 13 App. Cas. (L. R.) 1; Sluder1 v. Railroad, 189- Mo. 107.
   BRACE, P. J.

This is an action for damages for personal injuries, in which the plaintiff obtained judgment below for $5,000, and the defendant appeals.

About 11 o ’clock on the morning of the 29th of December, 1901, the plaintiff, then a minor, aged about sixteen years, was in a close covered storm buggy, drawn by one horse, driven by his uncle Ole Petersen, going in an easterly direction on Clark avenue between 21st and 22nd streets, in the city of St. Louis, when the buggy was run into and struck from behind by one of defendant’s cars, going in the same direction, causing the horse to run away and throw the plaintiff upon a pile of rocks on the sidewalk in Twenty-first street, whereby his skull was fractured, the right eye so injured as to destroy its vision, and he was otherwise injured.

The petition alleges that his injuries were caused by the negligence of the defendant’s servants in charge of the car. The specific acts of negligence charged are, in substance, a breach of the vigilant watch and speed ordinances, a reckless and unlawful rhte of speed, failure to give any warning signals, and to exercise ordinary care to- prevent the collision!

The answer was a general denial, with a plea of contributory negligence, upon which issue was joined by reply.

At the close of the plaintiff’s evidence the defendant demurred thereto, and, upon the demurrer being overruled, introduced its evidence in defense, and at the close of all the evidence renewed its demurrer; and the first question presented for determination is whether upon all the evidence the court erred in submitting’ the case to' the jury.

I. The evidence for the plaintiff tended to prove that he was a young Dane who had been in this country only about three months, who could not speak the English language and had to be examined through an interpreter; that the buggy and horse were owned and being driven by his uncle, Ole Petersen, a citizen of mature years, doing business on Clark avenue; that Clark avenue is a narrow street running east and west, about thirty feet wide between the sidewalks; that defendant had a single track in the center of the street, occupying a space of about six feet of its width and leaving a space of about twelve feet on either side; that on its track cars were run but one way, from west to east; that Twenty-first, Twenty-second and Twenty-third streets run north and south, crossing Clark avenue at right angles in a densely populated part of the city; that the width of these streets is between fifty and sixty feet, and the length of the blocks on the avenue between them is about three hundred feet; that Ole Petersen drove the buggy south on. Twenty-second street to its intersection with Clark avenue, looked west, as did his nephew, the plaintiff, and, seeing no approaching car within the distance of a block, turned' east on Clark avenue and drove down that street in a walk or slow trot close to the north rail o.f the track, and as he was in the act of crossing the track diagonally some forty or fifty feet east of the crossing the horse and buggy were struck by defendant’s car going east, which ran about one hundred.feet further before it stopped; that neither the plaintiff nor his uncle looked back behind them for an approaching car after they turned east on Clark avenue; that the maximum rate of speed prescribed for street cars was eight miles per hour; that the car was going at a speed of thirty or forty miles an hour; that no bell was rung, gong sounded nor any other warning of its approach given.

The evidence for the defendant tended to prove that the car was going- at a speed of from six to twelve miles an hour and that the bell was being rung as the car approached Twenty-second street; that the track, was straight and an approaching car going east could be seen at a distance of from six to eight blocks. The motorman, a witness for the defendant, testified that he first noticed the horse and buggy just after he crossed Twenty-third street going east; the buggy was turned east from 22nd street on Clark avenue and was between the track and sidewalk, the horse going in a trot or walk; that the car was running at the rate of twenty miles an hour; that as soon as the buggy came in sight he began to slow down by applying the brake, thinking the driver intended to cross the track, and when at the crossing of Twenty-second street he was running “probably 6, 7 or 8 miles” an hour; that at the speed he was then going the car could have been stopped in from ten to fifteen feet; that he noticed that the buggy was on the track in front of his car some twenty-five or thirty feet distant when he was on Twenty-second street about east of the crossing; that he gave the brake another turn, but rang no bell and did not reverse until within three or four feet of the buggy, and the car did not stop after the collision until it ran about 90' feet.

It is contended for the defendant that the demurrer to the evidence ought to have been sustained because the occupants of the buggy when it reached Clark avenue by looking west on that street could have seen a car approaching for a distance of six or seven blocks, and as they did not look that far west for an approaching car bnt only as far as a block, and, seeing no approaching car, entered upon that street, they were guilty of negligence; and because after they entered upon the street and were driving diagonally across it some forty or fifty feet beyond the crossing they did not look behind them for an approaching car before .the buggy went on the track, they were guilty of negligence.

The law imposed the duty upon the defendant’s servants in running its car upon Clark avenue to run them at a rate of speed not to exceed eight miles per hour, and to keep a vigilant watch for all vehicles and persons either on the track or moving towards it, and on the first appearance of danger to stop the car in the shortest time and space possible. Ole Petersen, a citizen of St. Louis, and for many years a resident thereof, had a right to assume when about to drive onto Clark avenue at the Twenty-second street crossing that defendant’s cars were being run thereon in obedience to these, legal requirements, and when he looked to the west, the only direction from which a car was to be expected, and saw no car approaching within a block, there was no apparent danger in driving onto the street, turning to the east and pursuing his way along the street, and he was guilty of no negligence in so doing. In turning into the space between the curb of the sidewalk and the north rail of the track the head of his horse must have been very near that "rail and the whole outfit in plain view of the motorman, whose duty it was to be on the lookout for a vehicle in that situation. Thereafter the movement of the vehicle was in front of the car and toward the track in plain view of the motorman until it was struck, about fifty feet from the crossing. The motorman admits that he saw the vehicle when he was at the Twenty-third street crossing. It was then in front of him at the Twenty-second street crossing and distant from him about 300 feet, moving as indicated. He admits that he was then running at a speed of twenty miles an hour, but, seeing the situation of the vehicle, applied the brake, and when he reached the Twenty-second street crossing the car was going only 6, 7 or 8 miles an hour. That he did not ring the bell when he saw the buggy coming towards the track, but when about east of Twenty-second street crossing, noticing that the buggy was on the track ahead about twenty-five or thirty feet from the car, he gave the brake another turn and when within three or four feet of it and when the collision was inevitable reversed the power, and this was all he did to prevent it, although, according to his own testimony, he ought to have stopped the car at the speed he was going within a space of ten or fifteen feet. We know of no inexorable rule of law that requires a traveler in a closed vehicle going along a public street of a city on which a street railroad track is laid to look behind him for an approaching car, of which he has no warning and of the proximity of which he has no knowledge, every time his horse or vehicle may be about to go on, along or across the rails of the track.

Whether he has been guilty of negligence in going on or over those rails in such case is' a question to be determined by the jury under all the circumstances of the case. But conceding that Ole Petersen was negligent in permitting his horse and buggy to go upon the rails, without looking behind for an approaching car, and leaving out of view all the evidence of the plaintiff’s witnesses of the unlawful and reckless speed at which they testified the car was running, still, according to the testimony of the motorman, the defendant’s own witness, the car ought to have been stopped in time to have prevented the collision, after he discovered the perilous position in which the vehicle was; his evidence tended to prove that he could have stopped the ear and prevented the collision by the exercise of proper care after he discovered the perilous position in which the vehicle was. And this of itself was sufficient to take the case to the jury, even if Ole Petersen had been the plaintiff in the case. [Rapp v. Railroad, 190 Mo. 144, and cases cited on page 161.] But he was not, and the status of the plaintiff in the buggy was not that of his uncle — he was a mere passenger in the buggy exercising no control whatever over its management or movements, and, having no right or power to do so, and upon a principle well recognized in this State, the negligence of Ole Petersen, if any, could not be attributed to him, for, as we have said, it is against both reason and authority that an innocent person should be made responsible for the wrong act of another over whom he has, and exercises no control, and who is neither his servant, nor his agent. [Becke v. Railroad, 102 Mo. 544; Sluder v. Railroad, 189 Mo. 107.

The court committed no error in overruling the demurrers to the evidence.

H. -The case was submitted to the jury upon twenty-seven instructions, and for the defendant it is contended the judgment ought to be reversed on account of the multitude of the instructions. While it is not specifically stated in the abstract which of these instructions were given at the • instance of the plaintiff and which at the instance of the defendant, it does inferentially appear on the face of the instructions and the motion for a new trial that those numbered 1 to 10 inclusive were given for and at the instance of the plaintiff, and those numbered from 11 to 27, inclusive, were given for and at the instance of the defendant. Besides these, the defendant asked for three other instructions which were refused. So that, besides the instructions in the nature of demurrers to the evidence, the defendant asked for twenty other instructions, seventeen of which were given, and now complains , of the multitude of the instructions. It does not lie in its mouth to make such a complaint. The defendant also complains of some of its own instructions on the theory of modifications thereof by the court, but no such modifications appear in the abstract and it is in no position to make such a complaint. No complaint is made of the action of the court upon the refused instructions, and the defendant’s instructions may be dismissed without further notice. Of the ten instructions given for the plaintiff, the 4th was a definition of ordinary care, the 5th upon the measure of damages, the 6th upon the burden of proof, the 9th upon the form of the verdict and the 10th on the credibility of witnesses. We find no substantial error affecting the merits of the case in any of these instructions. The other instructions upon which the main issue was submitted to the jury are as follows:

“1. The court instructs the jury that it was the duty of the defendant railway company in operating the car mentioned in evidence in this case on Clark avenue in the city of St. Louis to exercise ordinary care to avoid coming in contact with the buggy mentioned in evidence when the same was on the track or in such proximity thereto as to be in danger of being hit by a car running on defendant’s track; and if you believe and find from the evidence that the collision between the car and the buggy in which the plaintiff, Hans, was riding was occasioned by the omission of the motorman in charge of the movement of defendant’s ear to use reasonable care to avoid a collision with said buggy, and that because of such want of care the collision took place, and as a direct consequence thereof the horse attached to said buggy ran away and became unmanageable, and that as a direct result of said facts plaintiff, Hans, received the injuries mentioned in evidence, and that the plaintiff, Hans, personally, at and before the events above described, exercised ordinary care to avoid injury, and danger, then your verdict should be for the plaintiff.
“2. The court instructs the jury that if you believe from the evidence that the buggy was going east along Clark avenue in a course so near the railway track as to be in a position to be hit by defendant’s car running on said track, and that the motorman in charge of the movements of said car could, by the exercise of ordinary care on his part, have observed said course of the buggy, and could have stopped or checked said car so as to avoid hitting the buggy; and if you further find from the evidence that said motorman neglected to use such ordinary care to observe said buggy or to check said car so as to avoid hitting the buggy, and that because of said neglect the car ran into the buggy and thereby caused the horse to run away and throw plaintiff out of the buggy to his injury, and the plaintiff, Hans, personally used ordinary care to avoid danger and injury at and before said collision and up to the time when he was injured, then your verdict should be for the plaintiff, even although you may believe from the evidence that the driver of the buggy, Ole Petersen, failed or omitted to use ordinary care to notice the approach of the car or to avoid a collision with the car.
“3. The court instructs the jury that the plaintiff, Hans, is not answerable or responsible in this case for any want or omission of care on the part of Ole Petersen in respect to looking or listening for an approaching car or in respect of the management of the horse or buggy mentioned in the evidence; and if you believe from the evidence that the plaintiff, Hans, himself used ordinary care to avoid danger and injury, at and before the collision and up to the time when said plaintiff was injured, then you should find in favor of plaintiff, Hans, on the issue of his alleged negligence.
“7. The court instructs the jury that if you believe from the evidence that the collision between the defendant’s car and the horse or buggy was caused by the negligence, that is to say, the want of ordinary care, on the part of the defendant’s agent in charge of the movements of said car, in any of the particulars mentioned in the other instructions, and that said collision caused the horse to run away, and that plaintiff, Hans, was thereafter thrown out of the buggy, without any omission of ordinary care for his own safety; and' that he was thrown out and was injured as a natural and direct result of the running away of said horse, and of said collision, then the said injury to plaintiff was a direct consequence or result of said collision, as mentioned in the other instructions.
“8. The court instructs the jury that if they believe from the evidence that after the buggy or the horse mentioned in the evidence was going in a course so near the track as to be within striking distance of. the approaching car of the defendant on Clark avenue, the said car was then far enough distant from the said buggy to have been stopped by the motorman in charge of the movements of said car by the exercise of ordinary care on his part in observing said horse and buggy and in the use of the appliances at his command on said car, and that said motorman failed or neglected to use such ordinary care and in consequence of said neglect the car hit the horse or buggy, and that as a direct consequence of said collision the horse ran away and the plaintiff, Hans, received the injuries of which he complains, then the jury should find for the plaintiff. ’’

These instructions presented the case very fairly and clearly to> the jury, and we fail to find in them any material error prejudicial to the defendant, affecting the merits of the case. Although they may not come fully up to the standard of perfection required by the criticisms of defendant’s learned and ingenious counsel, yet as upon the whole of the evidence the verdict was manifestly for the right party — we cannot for that reason reverse the judgment thereupon. [R. S. 1899, secs. 659, 865.] Those criticisms have been sufficiently answered in the brief of counsel for plaintiff and need not be reviewed here.

III. It. is finally contended that the judgment ought to he reversed because “there is no verdict in the case such as is contemplated by law. ’ ’

The verdict was signed by nine jurors but because the first juror who signed his name attached the word “foreman” to his signature, it is contended that the verdict was not that of the nine jurors who signed it. The statement of this proposition is a sufficient refutation of it.

Finding no error in the trial of this cause, calling for a reversal of the judgment of the circuit court, the same is affirmed.

All concur except Graves, J., not sitting.


author: GRAVES, J.

text:
    JOHN H. RANKIN, Appellant, v. PORTER REAL ESTATE COMPANY.
    Division One,
    November 21, 1906.
    1. CITY TAXES: Execution for State and County: Ejectment. The city collector has no right to sue for state and county taxes, hut where the petition declared for city taxes, and the summons was personally served, and the judgment by default was simply for taxes, the fact that the execution recited that the judgment was “for certain delinquent state, county and special taxes and interest” will not avoid the judgment in a collateral proceeding, like ejectment by the purchaser at the tax sale.
    2. -: Suit by State: Judgment by Default: Collateral Attack. Whether or not a suit for city taxes can be maintained in the name of the State, is not for determination in a collateral proceeding, like ejectment, brought by the purchaser at the tax • suit, where there was personal service. The question of the right of the State to enforce a lien for city taxes, should have been raised by proper plea in the tax proceeding; and if not raised there, the validity of the judgment lien cannot be assailed, in the collateral proceeding, after judgment, execution and sale.

      3. -: Variance: Judgment and Execution. Where the petition was for city taxes and the judgment was simply for taxes and the execution was “for state, county and special taxes,” there was such a variance between the judgment and execution as rendered void the execution and proceedings thereunder. A tax proceeding is an action to enforce a lien, and not one merely for debt; and a judgment cannot be a lien for one thing, and the execution be to enforce a lien for another thing. And that variance will defeat ejectment brought by the purchaser at the tax sale.
    Appeal from Pettis Circuit Court. — Hon. Geo. F. Longan, Judge.
    Reversed and remanded (with directions).

      Sangree £ BoMing and A. L. Boss for appellant.
    (1) The tax deeds under which defendant claims purport to have been executed in pursuance of the judgment recovered by the collector of the city of Sedalia, for state, county and special taxes, and is therefore void upon its face. The only persons authorized to sue for state, county and special taxes are the county collectors of their respective counties. R. S. 1899', sec. 9302. In cities of the third class, to which the city of Sedalia belongs, it is made the duty of the city collector to sue for delinquent city taxes. R. S. 1899, see. 5812; Blackwell on Tax Titles, p. 369, sec. 4, p. 368, sec. 5; Black on Tax Titles (2 Ed.), sec. 399; Duffy v. 0 ’Reiley, 88 Mo. 424. So that although no form for the deed is prescribed, by the statute, yet, as it must, even in such cases, recite the power under which it is made (Blackwell on Tax Titles, sec. 5, p. 406), and as the “form must be adjusted to the facts in each case,” it must follow that the circuit court did not err in holding the deed void. If a tax deed contains any recital showing that the statutory requirements have not been fulfilled, it is void. Burden v. Taylor, 124 Mo. 12; Loring v. Boomer, 142 Mo. 1; Mason v. Crowder, 85 Mo. 526; Einstein v. Cay, 45 Mo. 62. A tax deed should contain recital showing compliance with the statutory requirements. Western v. Flanigan, 120 Mo. 61; Burden v. Taylor, 124 Mo. 12; Pitkin v. Shacklett, 106 Mo. 571. (2) The court erred in admitting the execution in evidence, which shows upon its face that it is an execution issued on a judgment obtained by the collector of the city of Sedalia for state and county delinquent taxes. Authorities cited above. (3) The court erred in admitting tax judgment in evidence, wherein it was decreed that the lien of the State be enforced. The State has no lien for delinquent city taxes. The city of Sedalia is a city of the third class. Of this fact the court will take judicial notice. R. S. 1899, sec. 5751; Jackson v. Railroad, 157 Mo. 621; R. S. 1899, sec. 1545; Laws 1903, p. 65; R. S. 1899, sec. 5812. Where the charter of a city gives the city a lien for delinquent city taxes the city and not the State has a lien. City of Kansas v. Payne, 71 Mo. 159; City of Jefferson v. Whipple, 71 Mo. 519. It follows that the judgment in which it is decreed that the lien of the • State be foreclosed, instead of the city, is defective and void. The tax deed is likewise void for the same reason. (4) The tax petition which prays for the enforcement of the lien of the State instead of the lien of the city is void.

      Montgomery $ Montgomery for respondent.
    (1) The State had a lien for the taxes due and delinquent to the city. See. 182, Laws 1872,-p. 119. These provisions were continued in the subsequent statutes unchanged. Sec. 7676, R. S. 1889. The State has a lien for all taxes whether state, county or city, even in the absence of any statutes. State ex rel. v. Tittman, 103 Mo. 567. The case cited by appellant, City of Kansas v. Payne, 71 Mo. 159, is not in point, because by an amendment to the charter of Kansas City made in 1875 a lien for its taxes was specially conferred upon Kansas City, and this was not affected or repealed by the subsequent enactment, and the Payne case was under the provisions of the amendatory act transferring the lien of the State to Kansas City and authorizing it to enforce such lien in its own- name. State ex rel. v. Sheppard, 74 Mo. 314; State ex rel. v. Van Every, 75 Mo. 531. The other case cited by appellant, that of the city of Jefferson against Whipple, is not in point because it simply decides that the city of Jefferson, not having been given any such right in its charter or by a statute, had no power to enforce the lien of the State for taxes in its own name. (2) .The authorities cited by appellant to overthrow in this collateral proceeding the judgment of the circuit court of Pettis county, with one exception are cases arising under the old revenue laws prior to the amendment of April 12, 1877. This judgment was in a court of original, general jurisdiction and the defendant brought in by a proper process, and to admit evidence or to hold to the same strictness in this proceeding as in those under the old repealed statutes which were conducted in a court of special and limited jurisdiction would be- to- destroy the force and effect of a judgment of a court of general'jurisdiction and would subvert the act of 1877 and render nugatory its most commendable provisions. Ewart v. Lumber & Mining Co.; 92 S. W. 376; Bibbs v. Suthern, 116 Mo. 219; Allen v. McCabe, 93 Mo. 143. (3) The proceedings attacked by appellant were had in a court of general jurisdiction; personal service was had upon the defendant; an innocent purchaser acquired the property under the judgment and execution issued thereon; this is a collateral attack. Under these circumstances the judgment, as long as it stands unreversed, cannot be impeached in a collateral proceeding on account of mere irregularities not going to the jurisdiction. Lovitt v. Russell, 138 Mo. 482; Union Depot Co. v. Frederick, 117 Mo. 1501; Grey v. Bowles,- 74 Mo. 423; Hope v. Blair, 105 Mo. 93; Jones v. Driskill, 94 Mo. 198; State ex rel. v. Sanford, 127 Mo. 371; State ex rel. v. Railroad, 1691 Mo. 573. (4) The execution was regular on its face and the purchaser was required to look no further and the misrecital no wise affected its regularity. Cabell v. Grubbs, 48 Mo. 356; Howard v. Stevenson, 11 Mo. App. 410. It appears from the writ and all the other facts that it was enforced as an execution upon the very judgment rendered. This is not denied by respondent, and his brief proceeds upon this theory. In such cases the courts disregard such variances, and they are only regarded as errors, not rendering the proceedings void and not affecting the title passed by the sheriff’s deed. Davis v. Kline, 73 Mo. 313; Stewart v. Severance, 43 Mo. 330; Ellis v. Jones, 51 Mo. 189; Landis v. Perkins, 12 Mo. 260.
   GRAVES, J.

Plaintiff brings ejectment ágainst defendant to recover a lot in the city of Sedalia. Petition in ordinary form. Answer a general denial. Jury waived, and a trial by court, resulting in a judgment for defendant, from which plaintiff appeals.

By stipulation it appears that defendant was in possession at the institution of the suit and at the date of trial; that the title of the lot was in plaintiff and that he was entitled to recover unless he had been divested of title by a certain tax deed of date September 8, 1896. Plaintiff introduced the written stipulation and rested.

Defendant then introduced this tax deed mentioned in the stipulation, together with the petition, summons and return, judgment, execution and report of sale in the tax proceeding. This tax proceeding was, according to the petition, entitled: “The State of Missouri, at the relation and to the use of V. P. Hart, Collector of the City of Sedalia, Plaintiff, vs. John H. Rankin, Defendant.” The summons was so entitled. Personal service was had and judgment taken by default ; the petition declares for city taxes; the judgment is for taxes without designating the kind of taxes. The execution recites that the judgment was for “certain delinquent state, county and special taxes and interest,” and for certain costs, and declares a special lien upon the lot in question. The deed contains the same recitals as are found in the execution as herein-above set out. Timely and proper objections were made to the introduction of all this documentary evidence, and exceptions properly saved. The above suf- „ ficiently details the facts for a consideration of all the points raised by counsel.

I. Appellant contends that, if the judgment is for state and county taxes, it is void for the reason that the collector of the city of Sedalia has no right to sue for and collect such taxes. It is true that the relator in the tax proceeding, the collector of the city of Sedalia, had no right to sue for state and county taxes, but in this case the defendant was properly served with process, and had the city collector sued for state and county taxes, which he did not do, the proper time to have raised that question would have been by demurrer prior to judgment. The defendant in the tax proceeding made no appearance, and had the petition demanded judgment for state and county taxes and the judgment had been entered in accordance with the petition, no complaint could afterwards he urged against the judgment. The defendant had an opportunity for his say in court upon that question, but having “sinned away” his day of grace, cannot now be heard in a collateral attack upon the judgment.

II. It is also further contended that at the time the tax proceeding was instituted, by an amendment of the statutes, the lien for city taxes was given to the city of Sedalia, and the suit could not be maintained in the name of the State for city taxes, and for that reason the judgment is void. “What has been said above as to appellant’s first contention applies with equal force in reply to this second contention. If the suit was for city taxes, as in fact it was, then the defendant in the tax proceeding should have raised by proper plea the question of the right of the State to enforce the lien for city taxes. This was not done, and judgment followed. John Jones may not have a right to enforce a lien against my property, but if he brings suit so to do, and I, after being duly served with process, permit him to obtain a judgment enforcing the lien, I would be in no position to attack the judgment collaterally. This second contention is therefore ruled against the appellant, without however expressing any opinion upon the question as to whether or not suits for city taxes must be brought in the name of the city rather than in the name of the State. It is not necessary for the disposition of the case at bar to pass upon that point.

III. We are of opinion that the serious question in this case is the variance between the judgment and the execution. A tax proceeding is an action to enforce a lien and not a mere action to recover the amount of a debt. This judgment enforcing the lien should state facts sufficient to show for what taxes the lien is being enforced. The tax judgment involved here simply recites that it is for “taxes” without specifying the kind of taxes. The defendant introduced with the judgment the petition, which claimed a lien and judgment for city taxes only. That judgment must be based upon the petition and the evidence, is a rule of law well founded. Now, if we read into this judgment, which we think we, have a right to do, the allegations of the petition upon which it is based, we have a judgment enforcing a lien for city taxes. Then when we look at the execution, we find that it purports to be issued upon a judgment enforcing a lien for “state, county and special taxes,” a clear variance. Suppose this execution had actually been presented to Eankin for payment, wouldn’t he have had the right to say to the officer, “You have no such judgment against me. The State sued me to enforce a lien for city taxes and got such a judgment, but your execution does not describe the judgment which was procured against me.”

You cannot procure a lien for one thing by your judgment and by execution enforce a lien for another and different thing. Executions must be founded upon and properly describe the judgment, for otherwise they are without force.

In our judgment the execution in this tax case, and the proceedings thereunder, are void, and so holding, it follows that the judgment of the circuit court should be reversed and the cause remanded with directions to enter judgment for the plaintiff and it is so ordered.

All concur.