author: YALLIANT, J.

text:
    MOORE v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    February 22, 1906.
    1. STREET CAR: Jumping Track: Defective Rail. Where there was substantial evidence tending to show that the proximate cause of the accident, in which a street car jumped the track and injured the plaintiff conductor, was a defective rail, the court will not set aside a verdict for him, although the evidence also shows that the. car, notwithstanding the defective rail, would not have jumped the track had care been taken to sufficiently slow down the speed.
    2. -: -: -: Excessive Speed: Motorman’s Concurring Negligence. A master is liable to a servant injured by the master’s negligence, even though the negligence of a fellow-servant contributed to the result. Hence, if the motorman of the street car which jumped the track and injured the conductor was negligent in running the car too fast at the curve where the accident occurred, yet if that negligence united with the master’s negligence in permitting a defective rail at the point, to produce the accident, the master is liable.
    3. -: -L; -; -; imputed to Conductor. It is not the duty of a street ear conductor to direct, the speed of the car at every point. The negligence of the motorman in running the car too fast at a curve, in this case, cannot he imputed to the conductor.

      4. INSTRUCTION: Assumption of Negligence. An instruction does not assume that a rail on the track was defective, which leaves that fact to be found by the jiiry from the evidence, and makes the finding of that fact essential to plaintiff’s right to recover.
    5. -: Contributory Negligence of Fellow-Servant. An instruction for plaintiff which leaves out of view the supposed contributory negligence of a fellow-servant, but charges plaintiff with the consequences of his own fault if any is found, is not incorrect.
    6. -: Inconsistent With Others Given. An instruction for plaintiff, itself correct, is not erroneous if in conflict with erroneous instructions given for defendant.
    7. -: Negligence: Master and Servant: Running Car on Schedule: Ordinancé. The city ordinance fixed the maximum rate of speed of a street car at eight miles an hour, and there was evidence that the schedule time was fifteen miles an hour. Plaintiff, a conductor on the ear, was injured by the car’s jumping the track. Held, that the defendant company cannot hold the conductor responsible for running the car at the schedule rate and in excess of the ordinance rate, even if it was the conductor’s duty to regulate the speed of the car at the point where the accident occurred. An instruction, therefore, which assumes that it was the conductor’s duty to obey the ordinance, rather than defendant’s order, in a suit between him and it, should not be given.
    Appeal from St. Louis City Circuit Court. —Eon. Daniel G. Taylor, Judge.
    Affirmed.

      Boyle, Priest do Lehmann, George W. Easley and Edward T. Miller for appellant.
    (1) The demurrer to the evidence should have been sustained. Alcorn v. Railroad, 108 Mo. 99; American Brewing Co. v. Talbot, 141 Mo. 683; Epperson v. Railroad, 155 Mo. 382; Minnier v. Railroad, 167 Mo. 99; Fuchs v. St. Louis, 167 Mo. 620; Sams v. Railroad, 174 Mo. 53; Fürber v. Bolt & Nut Co., 185 Mo. 301; Coransson v. Mfg. Co., 186 Mo. 300; Breen v. Cooperage Co., 50 Mo. App. 202; Smart v. Kansas City, 91 Mo. App. 586; Stearnes v. Spinning Co., 184 Pa. 523; Searles v. Railroad, 101 N. Y. 661; Bond v. Smith, 113 N. Y. 376; Dobbins v. Brown, 119 N. Y. 198; Panly v. Steam Co., 131 N. Y. 90; Linhauf v. Lombard, 137 N. Y. 417; Robert v. Railroad, 154 N. Y. 90; Ray on Neg. of Imposed Duties, pp. 133-134; Webb’s Pollock on Torts (En. Ed.), 45-46; 2 Labatt, M. & S., secs. 803, 804, 832 to 837; Godfrey v. Railroad, 107 Mo. App. 193. In the first place, plaintiff failed to establish the charge of negligence made against defendant. The only testimony as to the condition of the rail was that it was worn. Plaintiff should have offered evidence to show that it was dangerous to operate cars around a curve where the rail is in that condition. The mere existence of a worn rail, which plaintiff’s evidence shows must naturally result from the operation of cars over it, cannot be held as a matter of law to be negligence, and the fact that the car left the track at the entrance to the curve is not sufficient to sustain the burden of proof cast upon plaintiff. 2 Labatt, M. & S., secs. 803, 833, 837; Stourbridge v. Railroad, 41 N. Y. Supp. 128. In.the second place, plaintiff failed to prove that defendant was guilty of negligence which was the proximate cause of the injury. Goransson v. Mfg. Co., 186 Mo. 307; Epperson v. Railroad, 155 Mo. 382. In the third place, plaintiff not only failed to prove that defendant was negligent, and that that negligence was the proximate cause of the injury, but also failed to prove defendant’s knowledge of any dangerous condition existing. 2 Labatt, M. & S., sec. 832. In the fourth place-, defendant complied fully with its duty to plaintiff to exercise ordinary care to furnish him a reasonably safe track upon which to operate his car, as shown by the mass of testimony offered by plaintiff. (2) The requested peremptory instruction should have been given. Bank v. Bank, 151 Mo. 329. The court erred in giving plaintiff’s instruction 1. This instruction assumes that there was a defective rail in the track, and presented to the jury the issue: Was the accident caused by this defective rail, and had it existed long enough for defendant to make the necessary repairs thereto, or was the accident caused by fault on plaintiff’s part! The jury should not have been told that there was a defective rail in the track, but should have been required to find that there was a worn rail there and that it was dangerous to operate cars over it in a prudent manner, and that defendant knew these facts. Plaintiff’s own witnesses, Lawrence and Bangs, testified that they examined it and found nothing the matter with it. The instruction not only assumes that the rail was worn, but also that it was defective, and that the defect made it dangerous to operate cars over it in a prudent manner. Fullerton v. Fordyce, 121 Mo. 13; Minnier v. Railroad, 167 Mo. 99. Again, the instruction is erroneous in limiting defendant’s right to a verdict to the fault of plaintiff himself instead of that also of the motorman, his fellow-servant. Sams v. Railroad, 174 Mo. 53; Godfrey v. Railroad, 107 Mo. App. 193. Again, the instruction is in conflict with defendant’s fourth and seventh, which properly declare the law. By plaintiff’s instruction his motorman’s'negligence did not defeat a recovery; by defendant’s instructions it did. This irreconcilable variance constitutes reversible error. Mansur-Tebbets Co. v. Ritchie, 143 Mo. 587; Shepherd v. Railroad, 87 S. W. 1007.

      Ernest E. Wood for respondent.
    Respondent will simply answer the brief of appellant and will discuss only the three points argued by appellant. (1) Plaintiff showed by competent evidence that the rail was worn and defective and that it was dangerous to operate cars over it, and further proved that appellant knew of the said facts. Appellant states that plaintiff offered no evidence to show that it was dangerous to operate cars over such a track. Proof that several other cars had gone off the track at the same place where the rail was shown to be worn and flattened is evidence that the track was dangerous. (2) Appellant attacks the first instruction given for plaintiff stating that the instruction assumes that there was a defective rail on the track. This is certainly not the case. The instruction tells the jury that if they believe from the evidence that plaintiff was injured by reason of the car leaving the track on account of the defective rail of said track, etc. The jury must believe from the evidence. The jury were not told that there was a defective rail on the track. But even if that were true, the field is covered so thoroughly by defendant’s ten instructions, and its rights were so well protected by these ten instructions, that appellant’s point would be weak even if the instruction were as it states. Only two instructions were given .for plaintiff, and one of these related to the measure of-damages. Ten instructions were given for the defendant and these ten instructions did not in any way leave the jury in doubt as to any possible right of defendant, but so thoroughly protected the interests of defendant that-it is almost strange that the jury should have found in favor of plaintiff at albín view of the instructions the finding of the jury is accounted for only by the very strong evidence presented in favor of plaintiff. It might be well to note that one or two of the instructions given for defendant were absolutely erroneous, but since the jury were not misled by them, and since the verdict was for the right party, no harm has been done.
   YALLIANT, J.

— Plaintiff was in the service of the defendant, in the capacity of a street car conductor. On August 20,1902, the car on which plaintiff was serving jumped the track and turned over, throwing him out and severely injuring him. The amended petition charges that the accident was caused by a “broken, worn and defective rail” in defendant’s track, of which defendant had, or ought to have had, notice and negligently failed to repair.

The testimony for the plaintiff tended to prove as follows:

The defendant has a double-track street railroad along Grand avenue. Going south there is a curve towards the east in the tracks to conform to the curve of the street, extending from Alberta to Osage street. It is not a sharp curve, as if turning at a right angle into' a cross street, but a long curve, the precise angle of which was not shown. On August 20, 1902, the car on which plaintiff was conductor was going south; when it struck this curve it jumped the track and after running along on the ground the length of the car or more it turned over on its side. It was a summer car with crosswise seats. The plaintiff was standing between the second and third seats from the rear, he was thrown to the ground, part of the car fell on him and inflicted serious injuries, the details of which it is unnecessary to mention, since no point on that account is made in the brief of appellant. The rail in the track at that point was much worn — rounded as one witness said, flattened as another said, badly worn as others expressed it, rendering it less capable of holding the car, and liable to cause such an accident. Several other cars had shortly before this been derailed as this was at that point. This condition had existed for two months or more and was known for that length of time to the defendant’s road-master, who had called the attention of some of the motormen to it, and had cautioned them to be careful to run slowly through that curve. Cars could be run, using care, at a rate of six or eight miles an hour, safely through the curve, and the plaintiff had for months past been, daily, going through it safely with his car and had done so several times that day. Not all of the plaintiff’s witnesses testified that the rails were badly worn, some of them said they were only slightly worn, one said that even a new curve rail would in a short while, become slightly worn.

At the time of the accident this ear was running ten or twelve miles an hour, but it was within the schedule time. The motorman testified that as he approached the curve he slowed down, he did not state just how fast he was going when he struck the curve,' but did say it was over six miles an hour, and faster than a man would walk.

Defendant introduced in evidence the original petition of the plaintiff in which, in addition to the defective rail as charged in the amended petition, it was alleged that the ear was running at the rate of twenty-five miles an hour in violation of a city ordinance forbidding it to run faster than eight miles an hour, and also that the car was- defective. Defendant also introduced the city ordinance referred to, and the following rules of the company: “.Reduce speed of car to a walk before entering a curve,” etc: “The conductor will have full charge of the car when on duty, excepting such work as pertains to the care and operation of the motor, and the motorman'is expected to obey his orders by bell or otherwise.” Defendant also introduced evidence tending to show that the rails at that point were but slightly worn, and ears could and did safely pass through the curve at a rate of six or eight miles an hour.

An expert witness for defendant testified that if a car running ten or twelve miles an hour should be derailed going into a curve it would be owing to the speed of the train, and would not indicate a defective rail.

At the close of the plaintiff’s case and again' at the close of all the evidence, the defendant asked an instruction looking to a nonsuit which was refused and exception taken.

The trial resulted in a verdict for the plaintiff for $5,000, and defendant appealed.

I.

There was substantial evidence tending to show that the proximate cause of the accident was the defective rail. And whilst the evidence also shows that, even with the defect, the car could have been moved through the curve if care had been taken to sufficiently slow down the speed before striking the defective rail, yet there was sufficient in the evidence to justify the jury in concluding that there would have been no accident if the rail had been in proper condition. Conceding that the motorman was negligent in running into the curve faster than he should (although that does not clearly appear), still there is nothing in the plaintiff’s evidence to show that the rate at which he was going would have produced the result if the rail had been in proper condition. If the motorman was negligent in this respect, the most that can be said of it is that his negligence united with that of the defendant to cause the accident. A master is liable to his servant who is injured by the master’s negligence even though the negligence of a fellow-servant of the one injured contributed to the result. [Cole v. Railroad, 183 Mo. 81, l. c. 94, and cases there cited.]

If the car was run into the curve at a rate of speed that was, under the circumstances, negligent, it was not the fault of the plaintiff, the conductor, because although under the rules of the company he had general charge of the car, yet it was not in the nature of his duties to direct the speed of the car at every point. His duties were to be elsewhere than on the front platform and otherwise than observing the track and noting when to slow down and when to increase speed. Those duties in their detail naturally belonged to the motorman and by the rules of the company'read in evidence were expressly excepted from the duties of the conductor; It may be that the conductor would have authority, when a condition arose that required it, to order the motorman to slow or speed the car, but snch authority would not imply that he was expected to direct the speed of the car at every point or when there was nothing especial arising to call for an interposition of his authority. The negligence of the motorman, therefore, if there was such, negligence, was not the negligence of the conductor. The court did not err in refusing the instruction looking to a nonsuit.

II.

At the request of the plaintiff the court gave this instruction:

“The court instructs the jury that if they believe from the evidence that plaintiff was employed as a conductor on one of the cars owned and operated by the defendant, and that he was injured by reason of the car leaving the track on account of a defective rail of the said track, and not through or on account of any fault on his part, they should find in favor of the plaintiff and against the defendant, provided they further find that the defendant company knew or could by the exercise of ordinary care have known of the existence of the defective rail on the said track for a sufficient length of time prior to the accident for them to have made necessary repairs. ’ ’

This was the only instruction given that informed the jury as to what facts were necessary to he found in order to authorize a verdict for the plaintiff, the chief of which was that the ear left the track on account of a defective rail.

There were ten instructions given at the request of the defendant, in one of which the jury were expressly told that the only negligence charged was the defective rail and failure to repair it, Within a reasonable time after notice, and unless they found that defendant was guilty of that negligence the verdict could not he for the plaintiff, although the jury should find that defendant was negligent in some other respect.

These instructions took the mind of the jury away from all other questions of defendant’s negligence except that relating to the alleged defective rail. The criticisms that appellant makes of the instruction given at the request.of the plaintiff are (a) that it assumes that the rail was defective, (h) it leaves out of view the negligence of the motorman and (c) that it conflicts with instructions 4 and 5 given for defendant.

The instruction is not subject to the interpretation that it assumes that the rail was defective ;■ it leaves that fact to be found from the evidence, and makes its finding essential to the plaintiff’s right to recover. It does leave out of view supposed contributory negligence of the motorman, and charges the plaintiff with the consequence of his own fault only if any is found, and in that the instruction is correct. , And this instruction does conflict with instructions four and five given for defendant, but those instructions were wrong; they told the jury that if the car was under the control of the plaintiff as conductor or under the joint control of the conductor and motorman and was being run at a greater speed than the ordinance allowed and that the speed contributed to the derailment, the plaintiff could not recover. Those instructions not only hold the plaintiff liable for the contributory negligence of his fellow-servant, but imply that it was the plaintiff’s duty to see that the ordinance was obeyed without reference to what his master’s orders in that respect might have been. There was some evidence tending to show that fifteen miles an hour was the schedule time on that part of.Grand avenue. When it is a question between the master and the servant the master cannot hold the servant responsible for obeying his own order. An instruction, therefore, assuming it to be the servant’s duty to obey the city ordinance should not, in a suit between the master and the servant, ignore a question of the master’s order on the subject if there was evidence on that point.

"We find no error in the record of which the appellant can complain. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: BRACE, P. J.

license: Public Domain

text:
    NANCY CRAWLEY et al. v. J. D. CRAFTON et al., Appellants.
    Division One,
    February 22, 1906.
    1. EXPRESS TRUST: How Shown. An express trust in land deeded by a husband through an intermediary ■ to his wife for the benefit of his heirs can be “manifested and proved” only by some writing signed by him.
    2. RESULTING TRUST: Implied: Proof: Pleading Express Trust. Resulting trusts, that is, trusts that arise by implication of law, are excepted from the operation of the statute which requires the trust to be “manifested and proved by some writing signed by the party who is, or shall be, by law able to declare the trust,” and the facts from which they may be implied may be proved by parol. But a petition which alleges that a husband and wife entered into an agreement by which she would take the title for his protection, would hold it for the benefit of him and his children, and would reconvey it to him on his request, and that in pursuance to that agreement, he conveyed the land through an intermediary to her, does not set up facts from which a resulting trust may be implied. On the contrary, it charges an express trust, which under the statute is void unless manifested - by a writing.
    3. DEED: Meritorious Consideration: Mistake in Description. A husband, with a large family, about to engage in a business unfamiliar to him, by deed duly executed conveyed 120 acres of land to his wife, thereby making provision for her in case-of misfortune to himself, but by mistake the deed described a forty acres he did not own, and omitted a forty he did own. Held, that the deed, though not supported by- a valuable, was supported by a meritorious consideration as between them and their heirs, which brings it within the cognizance of a court of equity, and, therefore, it should be reformed.
    4. -: -: -: Reformation: Voluntary Deed: Deed as Evidence of Contract. A deed founded on a meritorious consideration is .not purely voluntary. A deed founded on such a consideration is evidence of a valid executed contract, and a court of equity, in reforming it, simply corrects the evidence of the contract so as to make it conform to the contract as actually made and executed.
    Appeal from Dunklin Circuit, Court. — lion. J. L. Fort, Judge.
    Reversed and remanded (with directions).

      Walker é Cox for appellants.
    (1) Respondents’ pleadings set up an express trust. Such a trust can not be established by parol testimony. Curd v. Brown, 148 Mo. 82; Mulock v. Mulock, .156 Mo. 431. (2) If respondents should now rely upon an implied or resulting trust, then such trust can be established only by evidence so clear, unequivocal, definite and positive as to leave no reasonable doubt as to its existence in the mind of the chancellor. Condit v. Maxwell, 142 Mo. 266; Hillman v. Allen, 145 Mo. 638; Walker v. Walker, 147 Mo. 246; Mulock v. Mulock, 156 Mo. 431. (3) Theprima-faciepresumption in this case is, that when the husband conveyed to the wife he intended it as a provision for her and her minor children; and there is no testimony to overcome that presumption. Curd v. Brown, 148 Mo. 82; Case v. Espenschied, 169 Mo. 219. (4) The testimony of witness T. O. Crawley was incompetent and improperly admitted, (a) because he was a party to the original contract or cause of action, to-wit, the deed from Crafton to himself and the deed from himself to Mrs. Crafton; (b) because he is also beneficially interested as the husband of one of the parties in interest, Nancy Crawley; (c) because plaintiff, Nancy Crawley, being an heir of R. O. Crafton, would be incompetent, and being the husband of Nancy Crawley, he would be incompetent, whether he is a party to the record or not. Curd v. Brown, 148 Mo. 82; Rice v. Shipley, 159 Mo. 399; Messimer v. McCray, 113 Mo. 382; Meier v. Thieman, 90 Mo. 433; Tucker v. Gentry, 93 Mo. App. 655; Joiee v. Branson, 73 Mo. 28; Bagnett v. Bank, 76 Mo. App. 121; Edwards v. Warner, 84 Mo. App. 200; Bieber v. Boeckman, 70 Mo. App. 503. (5) The testimony of Mrs. Alice Easley and Mrs. Nancy Crawley is not competent, since they claim as heirs at law of R. C. Crafton, and the other party to the cause of action, to-wit, (Julia) Adaline Crafton, is dead. Messimer v. McCray, 113 Mo. 382; Warfield v. Hnne, 91 Mo. App. 541; Meier v. Thieman, 90 Mo. 433. And the husband of either of said heirs would be incompetent also, even though the inherited property would be the separate property of the wife. Tucker v. Gentry, 93 Mo. App. 655; Joice v. Branson, 73 Mo. 28. (6) The term “contract or cause of action in issue and on trial” will be so interpreted as to include a deed relied upon by one of the parties to a suit. Davis v. Wood, 161 Mo. 17; Messimer v. McCray, 113 Mo. 382. (7) This property was conveyed'in anticipation of threatened lawsuits because the grantor was involved in.a failure of a business venture, and there is no testimony of an intention to create an implied or a resulting trust, except such as was incompetent or unbelievable; held, that there was no implied trust. Mulock v. Mulock, 156 Mo. 431.

      John W. Scobey for respondents.
    (1) There is no express trust pleaded nor an attempt to plead'an express trust, and so the question of an express trust is eliminated from our consideration of this case. Respondents’ petition in this cause pleads an implied, resulting trust. Eaton on Equity, sec. 186; Rice v. Shipley, 159 Mo. 399'; Mulock v. Mulock, 156 Mo. 440; 10 Am. and Eng. Ency. Law (1 Ed.), 5 to 60. (2) An examination of the record will show that the decree was based upon facts and circumstances detailed in evidence so clear, positive and convincing as to leave no doubt in the mind of the chancellor. Crawford v. Jones, 163 Mo. 577. This conveyance was either a gift or an implied resulting trust, as no consideration was paid, and it is not contended by appellants that it was a sale. The very fact that Crawley and wife took part in the conveyance -to Mrs. Crafto-n is a very strong circumstance that this conveyance was not a gift.- (3) We concede as an abstract proposition that when the husband conveys land to the wife, a presumption arises that it was intended as a gift or provision. But no such presumption arises in this case, and if so we submit that the presumption is rebutted by the facts and circumstances of the case. Crawford v. Jones, 163 Mo. 577; Eaton on Equity, sec. 193. The reason that such a presumption arises, is because of the legal and moral duty to provide for the -wife. Eaton on Equity, supra. But the legal and moral duty of the father to minor children for reasonable support and provision is just as obligatory as for the wife. It cannot be presumed, without some testimony, that Crafton intended to disinherit his daughters (these plaintiffs) which, if appellants ’ theory is accepted, he did. But he is presumed to have intended to provide for them, and this presumption rebuts the presumption of gift, if any such presumption arises in this transaction. 10 Am. and Eng. Ency. Law, 24; Eaton on Equity, sec. 193. Appellants’ answer pleads a mistake in description of deed, and prays the court to correct the deed, etc. If appellants were relying upon this conveyance being a gift, then they could not ask this correction and enforcement. Mudd v. Dillon, 166 Mo. 121; Ford v. Church Society, 120 Mo. 508 ; Anderson v. Scott, 94 Mo. 637.
   BRACE, P. J.

— This is an appeal by the plaintiffs from an interlocutory judgment in partition, determining the rights of the parties in the real estate described therein.

The undisputed facts of the case are as follows:

On the 18th day of November, 1891,’R. C. Crafton was the owner of the northeast quarter of the northwest quarter of section 5, township 21, range 10; the southeast quarter of the northwest quarter of section 32, township 22, range 10; and the northwest quarter of the southeast quarter of section 31, township 22, range 10, in Dunklin county, Missouri; and this was all the land he owned in that county. By deed of that date he conveyed to one T. O. Crawley the northeast quarter of the northwest quarter of section 5, township' 21, range 10; the southeast quarter of the southwest quarter of section 32, township 22, range 10; and the southwest quarter of the southeast quarter of section 31, township 22, range 10; and on the 20th day of November, 1891, the said T. O. Crawley by deed of that date conveyed the last-described real estate to J. A. Crafton, the wife of the said R. C. Crafton.

It will be observed that while the deeds from R. C. Crafton to Crawley and from Crawley to J. A. Crafton purported to convey three forty-acre tracts, they did not, in fact, convey one of the three of which he was the owner, to-wit, the northwest quarter of the southeast quarter of section 31, township 22, rang-© 10; but instead, conveyed the southwest quarter of the southeast quarter of said section, of which he was not the owner. So that by virtue thereof J. A. Crafton became seized of only two of the forty-acre tracts of which her husband was theretofore the owner, to-wit, the northeast quarter of the northwest quarter of section 5, township 21, range 10, and the southeast quarter of the southwest quarter of section 32, township 22, range 10.

Afterwards, the said J. A. Crafton died, leaving, her surviving, her husband and five children by him, viz., Julia, Lizzie, Bell, Ivery and Marshall, her only heirs at law; and afterwards, on the 12th day of September, 1901, the said R. C. Crafton died, leaving, him surviving, the aforesaid five children of the said'J. A. and J. D. Crafton, Nancy Crawley and Alice Easley, children of a former wife, his only heirs at law. After-wards, the said J. D. Crafton acquired by purchase all the right, title and interest of the said Julia, Lizzie, Bell and Ivery in their mother’s real estate.

Afterwards, in 1903, this suit was instituted by the said Nancy Crawley and Alice Easley, plaintiffs, against the said J. D. Crafton and Marshall Crafton, defendants. The said plaintiffs claiming in their petition that they are each entitled to an equal undivided one-eighth of the said northwest quarter of the southeast quarter of section 31, as heirs at law of their father, and, also, as such heirs they are entitled to an equal undivided one-eighth of the other two forty-acre tracts, by their father conveyed, as aforesaid, to the said Crawley, and by the said Crawley conveyed to the said J. A. Crafton; and, as ground for their claim to these last two forties, they allege, in substance, in the petition, that the said J. A. Crafton at the time of her death held the legal title to said real estate in trust for the said R. C. Crafton and his legal heirs, which trust was created in the following manner, to-wit:

“That shortly prior to 1891, R. C. Crafton was the owner in fee of said premises, was entering into a cooperative mercantile business, and, as the same was an adventure to which R. C. Crafton was unaccustomed, he consulted with his wife and they mutually decided that she should take the property in her own name in order to protect him, the said R. C. Crafton, and his heirs, in case of failure to be successful in business, and it was agreed and understood by all parties thereto, and especially R. C. Crafton and Adline (J. A.) Crafton, his wife, before the conveyance to her, that she would convey the same back to R. C. Crafton when he desired, and it was also stated and agreed by both husband and wife before said conveyance and at the time of conveyance that in case of death of either party all of the heirs of R. C. Crafton were to share equally in the distribution of his estate.
“Plaintiffs further state that in consequence of the aforesaid agreements between the said E. C. Crafton and Adline (J. A.) Crafton, his wife, he did with his wife in the year 1891, by warranty deed convey to T. O. Crawley the land in this count and that the said T. O. Crawley with his wife in turn conveyed the same to Adline (J. A.) Crafton, the wife of E. C. Crafton, in trust for the benefit of E. C. Crafton and heirs. That all of said conveyances were by warranty deed, but that the deed to Adline (J. A.) Crafton was intended as a conveyance in trust by the parties thereto. Plaintiffs further say that neither of said conveyances were based upon any consideration.”

The defendants in their answer, in substance, deny the trust set up in the petition, aver that the deeds from E. C. Crafton to T. O. Crawley and from Crawley to J. A. Crafton were made for the protection of his said wife and her minor children, and that by said deeds the said Crafton and Crawley intended to convey all the real estate which he then owned to his said wife, but by mistake of the scrivener the northwest quarter of the southeast quarter of section 31, township 22, range 10, was described in said deeds as the southwest quarter of the southeast quarter of said section. Wherefore they pray that the said T. O. Crawley be made a party to the proceeding, and that said mistake be corrected, the deeds be made to conform to the intention of the said grantors, and that plaintiffs be declared to have no interest in any of the real estate hereinbefore first described, of which the said E. C. Crafton was the owner prior to the 18th day of November, 1891, and which was by him on that day conveyed as aforesaid. By amended petition, the said T. O. Crawley became a party plaintiff to the proceeding, the reply thereto was a general denial, and, after hearing the evidence, the court rendered the following judgment and decree:

“Now, on this 22d day of May, the above-entitled cause coming on to be heard, and it appearing to the court that the defendants herein having been duly served with summons more than thirty days before the first day of this term of court, and this cause being submitted to the court upon the amended petition, answer and replication, and the plaintiffs and defendants each offered evidence to sustain their issues, and the court after seeing and examining the pleadings and after hearing the evidence of both plaintiffs and defendants, doth find that R. C. Crafton in his lifetime owned the northwest quarter of the southeast quarter of section 31, township 22, range 10, east; and the northeast quarter of the northwest quarter of section 5, township 21, range 10 east, and the southeast quarter of the southwest quarter of section 32, township 22, range 10 east, and that in November of 1891 the said R. C. Crafton with his wife conveyed the above-described premises to T. O. Crawley, and that T. O. Crawley, with his wife, conveyed the same in November,'1891, to J. A. Crafton the wife of R. C. Crafton and that by mistake of the scrivener who drew the deeds each of said deeds duly recorded respectively in hook ----page =--, of the recorder’s office of said county in describing the northwest quarter of the southeast quarter of section 31, township 22, range 10, the same was written southwest quarter of southeast quarter of section 31, township 22, range 10.
“The court doth further find that the said R. C. Crafton, who was the owner of the said lands, intended that said conveyance to J. A. Crafton, his wife, was a conveyance in trust for him, the said R. C. Crafton, and all his heirs equally. And the court doth further find from the pleadings and evidence that R. C. Crafton died in September, 1901, and the court doth find, adjudge and decree that said deeds reading southwest quarter of southeast quarter of section 31, township 22, range 10 east, he corrected as to read northwest quarter of southeast quarter section 31, township 22, range 10 east. And the court doth further find, adjudge and decree that all of the legal title to said lands were held and are held in trust, by J. A. Crafton for the benefit of all the legal heirs of R. C. Crafton equally, and that judgment is for the plaintiffs, Alice Easley and Nancy Crawley and her husband T. O. Crawley, and the court doth adjudge and decree that Alice Easley as the daughter of R. C. Crafton, deceased, is entitled to an undivided one-eighth interest of all of said premises, and that Nancy Crawley as the daughter of R. C. Crafton, deceased, with her husband, T. O. Crawley, are entitled to an undivided one-eighth interest in and to all of said premises, and that Marshall Crafton, one of the defendants, as son of R. C. Crafton is entitled to an undivided one-eighth interest in and to said premises, and that defendant J. D. Crafton, as son of R. C. Crafton, is entitled to an undivided one-eighth interest, and that he is also by purchase entitled to an undivided four-eighths interest in and to all of said premises, and that plaintiffs are entitled to recover their costs herein expended from the defendants. ’ ’

The consideration expressed in the deeds from R. C. Crafton to T. O. Crawley and from him to Mrs. J. A. Crafton were, in the former, $1200, and, in the latter, $1250. But it is conceded said deeds had in fact no pecuniary consideration, that the said R. C. Crafton remained in possession of the premises after the execution of the deeds and after the death of his said wife until his own death, the same as before, and that in said deeds, by mistake of the scrivener, the northwest quarter of the southeast quarter of section 31, township 22, range 10 intended to be conveyed was misdescribed as the southwest quarter of said section. In support of the trust set up in the petition, the plaintiffs introduced the said T. O. Crawley, husband of the plaintiff, Nancy Crawley, who testified on that subject as follows:

‘‘Q. State why the conveyance was made from R. C. Crafton to you and from you to Mrs. Crafton? A. Well, it was made to me — he come to me and made the proposition. . . . He wanted to make the land to me and me make it to his wife to hold in trust. . . .
“ Q. What did you mean by saying that he intended to hold it in trust, and what caused you to have that understanding? A. In order to tell that, I will have to explain the conversation that took place between us.
‘‘Q. All right. A. Pie came to me three times before I would accept the proposition, he came and told me he wanted to make these transfers, and I objected and it went on several days, and I accepted it; he said he wanted to deed Adline the land to hold in trust, and I told him I didn’t want to be connected in this; that if he should die first I didn’t want to be connected with this thing, and he said he intended to convey it in trust; I think he intended that all the children should have an equal interest in the land.
“Q. Did he state that he did not intend this as a gift to Mrs. Crafton? A. Yes, sir.
“Q. I will ask you to state to this court if he said it was his desire that all of his children should share equally in the matter? A. Yes, sir, he did.
“Q. I will ask you if he did not at that time enter into a co-operative mercantile business? A. Yes, sir.....
‘ ‘ Q. Would you have participated in this and took part in it unless you had been promised repeatedly by R. C. Crafton and Mrs. Crafton that she would not take title in the land, except holding it to convey it back at any time they desired?
‘ ‘ The court: He has stated that once.
‘ ‘ Q. That is all. ’ ’

And Richard Easley, husband of the plaintiff, Alice Easley, who testified as follows:

“Had heard R. O. Crafton say, after the death of Mrs. Crafton, that he was sorry he had the land in the shape it was; that he intended to change it back, if he had to sell it for taxes and buy it in.
“Q. Did you hear him say that he intended for Mrs. Crafton to convey this land back to him? A. Yes, sir.
Q. Did you hear him say that it was his intention that all his children were to share equally in his land? A. Yes, sir, equal part.”

And this was all the evidence tending to prove the trust set up in the plaintiffs’ petition. Whatever may be said of the weight of this evidence and of the competency of the main witness who delivered it, it was wholly insufficient to prove the express trust set up in the plaintiffs’ petition. Such a trust can only be “manifested and proved by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts.” [R. S. 1899, secs. 3416-17.] Resulting trusts, i. e., trusts which arise by implication of law, are excepted from the operation of this statute, and the facts from which such a trust may be implied by law may be proved by parol. But no facts are set up in the petition in this case from which a resulting trust could be implied. On the contrary, the whole claim that Mrs. J. A. Crafton held the lands in trust is based upon the alleged agreement between her and her husband at the tipie of the conveyance, that she would take the title for his protection, would hold it for the benefit of him and all of his heirs, and whenever desired by him would re-convey to him. This is the sum and substance of the trust set up in the petition, and is, of course, an express trust, which under the statute is void unless manifested in writing as therein required. [Hillman v. Allen, 145 Mo. 638.] Hence, that part of the decree, holding that the said J. A. Crafton held the title to all the real estate in question in trust for the said R. C. Crafton and all his heirs equally, and adjudging that the plaintiffs are each entitled to an equal undivided one-eighth thereof, had no legal evidence to support it, and is erroneous.

We see no good reason, however, why that part of the decree correcting the mistake in the deeds should not be sustained. [2 Beach, Mod. Eq. Juris., p, 549.] Shorn of the incompetent evidence, the case presented is simply that of a husband with a large family, who, being about to engage in an unfamiliar business, by deed duly executed and delivered, conveys his real estate to his wife, thereby making provision for her in case of misfortune to himself. Such a deed had not a valuable, but it has a meritorious consideration as between them and their heirs, which brings it within the cognizance of a court of equity, and there is no good reason why an admitted mistake in the description, of the property therein conveyed should not be corrected. [Hutsell v. Crewse, 138 Mo. 1.] In which case it was held that a deed made and delivered by a parent to his child as a provision for him has a meritorious consideration, and that the child was entitled to have a mistake therein corrected in an action against the other heirs of his deceased father. In that case it was urged that equity will not lend its assistance to the enforcement’ of a voluntary executory contract, but the court replied: “The answer to this contention is obvious. The deed makes provision for a child, and therefore has a meritorious consideration which' entitles it to the protection of a court of equity, and having been delivered and the land being susceptible of identification aliunde, the contract is executed, and the title passed. ’ ’ Of course, the title, in contemplation of a court of equity, was meant. In such case the contract is not purely voluntary, and the court does not enforce an executory contract. The deed is but the evidence of an executed contract founded upon a meritorious consideration, and it simply corrects the evidence of that contract so as to make it conform to the contract as actually made and executed. The deeds to the wife in this case have a consideration equally meritorious in the eye of a court of equity. [Newland on Contracts, p. 70.] And upon the same principle the mistake in them ought to be corrected. [2 Story’s Equity (13th Ed.j, 793 b.; Adams’ Equity, (8 Ed.), pp. 97-98.]

Hence, we conclude that the judgment and decree of the circuit court herein ought to he reversed; that a proper decree correcting the mistake aforesaid in the deeds aforesaid should be rendered; and the plaintiffs’ bill dismissed; and, that this may be done, the case is remanded to the circuit court with directions to render such decree.

All concur.


author: MARSHALL, J.

text:
    HENRY E. EVARTS et al., Appellants, v. MISSOURI LUMBER AND MINING COMPANY.
    Division One,
    February 22, 1906.
    1. TAXES: Payment: Sale, Nevertheless: Collateral Attack. A judgment in a tax suit cannot be collaterally attacked (as, for instance, by a suit to quiet title) by one who was a defendant in that suit, and who was properly brought in by personal service or by publication; nor can the title of a purchaser under such a judgment be defeated by showing that the taxes, for which the judgment was rendered, had been paid before the institution of the suit, before the judgment was rendered or before sale under the judgment.
    2. -: Judgment: Party to Suit: Collateral Attack. Whether or not a party collaterally attacking a judgment for taxes and a sale thereunder was a party to the tax suit, is always a question for consideration. If the attacking party was not a party to that suit, either by not having been made a party thereto or because the steps taken to bring him in were insufficient to accomplish that end, then the judgment is not binding on him— no more than a judgment in any other civil case would be.
    3. -: -: -: Non-Resident: Affidavit. A petition alleging that defendant is a non-resident need not be supported by affidavit, whether the suit be one for collecting taxes or any other kind of civil suit.
    4. -: -: -: -: Initials of Owner: Unrecorded Deed. A deed was made to Henry E. Evarts and Mary Evarts, the plaintiffs, in 1885, but was not recorded until 1900. The order of publication in a tax suit begun in 1896 for taxes for 1892, was directed to H. E. Evarts, and the taxes were assessed to H. E. Evarts. The tax attorney who brought the suit knew that plaintiffs were the owners. They were non-residents, and Henry E. Evarts had done nothing to induce any one to believe that his name was H. E. Evarts. HeU, that, in order to bring him into court by an order of publication, he should have been notified by his full Christian name and surname, and the judgment and sale thereunder were void, and can be shown to be in a Collateral proceeding.
    5. -: Payment: Judgment and Sale, Nevertheless: Fraud. The fact that the tax attorney knew that the taxes had been paid before he instituted suit, and that he had been told by the collector not to bring the suit, and that, after suit brought, he entered upon the delinquent tax book that the suit was against other persons who were not owners, and that he received a part of the printer’s fee and that it was to obtain his portion of that fee that he brought the suit, will not alone, if the tax deed was made to an innocent third party and not to him, authorize the court to set aside the judgment as having been obtained by fraud. His conduct did not prevent the defendant from interposing the objection that the. taxes were paid, and hence the suppression of that fact was not a fraud in the concoction of the judgment. Tnerefore, as the innocent purchaser or the negligent owner must suffer, the sale will not be set aside on that ground.
    Appeal. from Shannon Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed and remanded {with directions).

      J. W. Chilton for appellants. •
    (1) The statute law of Missouri contemplates and intends that the payment of taxes dne on land shall extinguish the tax lien, and that a sale of such land through the fault of the collector for taxes which have been paid shall not deprive the owner of his land. R. S. 1899, secs. 9266, 9329; Hubert v. Pickier, 94 Mo. 387. (2) The existence of the tax debt is what creates the lien and gives jurisdiction to sell the land; so that if payment or tender of the taxes due be made, thenceforth the tax lien is discharged and the power to sell the land at all ends. Hoge v. Hubb, 94 Mo. 503; Harness v. Cravens, 126 Mo. 233; City of Aurora ex. rel. v. Lindsay, 146 Mo. 518; Black on Tax Titles (2. Ed.), sec. 156; McClure v. Logan, 59 Mo. 234; Bennett v. Hunter, 19 G-ratt. 100; Doe v.Bnfford,26 Wis.194; Kingsworthy v. Austin, 23 Ark. 375. (3) There is no difference, so far as this question is concerned, between a tax lien and a mortgage lien. Payment of the amount due thereon extinguishes the lien and any sale thereafter is void and without the jurisdiction of the court, and passes no title. Harness v. Cravens, supra; Thornton v. Bank, 71 Mo. 233; Jackson v. Crafts, 18 Johns. 110; Kortright v. Cady, 21 N. T. 343; Almstead v. Tarsney, 69 Mo. 399; Edwards v. Ins. and Loan Co., 21 Wend. 467. (4) And when taxes on land have been paid to the collector, the obtaining of a judgment against such land for such taxes by such collector or his tax attorney is a fraud upon the court, and such judgment is void. In the case at bar the conduct'of the tax attorney was reprehensibly fraudulent, as shown by the evidence, and that of the collector was so sublimely stupid as together to call loudly for the intervention of a court of equity. The judgment of the court should therefore have been for plaintiffs on this ground if upon no other. Harness v. Cravens, supra; Hampton v. McClanahan, 143 Mo. 501; City of Aurora ex rel. v.- Lindsay, supra. (5) A suit brought against a nonresident by order of publication wherein there is no personal appearance by defendant, must be brought against such defendant by his proper name. It will not be sufficient to sue him by initials only, unless defendant has, by some act of his own, authorized the name by his initials merely. Hence the court erred in refusing plaintiffs’ instruction 5. Vincent v. Means, 184 Mo. 344; Spore v. Ozark Land Co., 186 Mo. 656; Gillingham v. Brown, 187 Mo. 181; Skelton v. Sackett, 91 Mo. 377; Singleton v. Turner, 151 Mo. 100; Steimann v. Stremple, 29 Mo. App. 484. It is the duty of the collector to sue the real owner as against the record owner of land, in tax suits, if he have notice of the real owner’s ownership thereof. Yance v. Corrigan, 78 Mo. 94; State ex rel. v. Sack, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169. And if the collector has notice of the claim and ownership of land on which he sues for taxes, hut does not know claimant’s correct name, he should either ascertain the owner’s name or sue him as an unknown party, as provided in section 530, Revised Statutes 1889. Meyers v. McRay, 114 Mo. 377. A sheriff’s deed is void and passes no title to the purchaser when founded on a judgment wherein the court failed to obtain jurisdiction over the person of the defendant, even though the suit be also against the record owner of the land. Meyers v. McRay, 114 Mo. 381. (6) The rule of caveat emptor applies in all its vigor to purchasers at tax sales. Black on Tax Titles (4 Ed.), pp. 53 and 68; Rowe v. Land & Cattle Co., 99 Mo. App. 158; Petring v. Land & Cattle Co., 85 S. W. 933. ■

      John G. Brown for respondent.
    (1) The fact that the taxes for which the land was sold had been paid does not invalidate respondent’s sheriff’s tax deed. Hill v. Sherwood, 96 Mo. 125; Jones v. Driskill, 94 Mo. 191; Gibbs v. Southern, 116 Mo. 218. (2) Appellant, Henry E. Evarts, is estopped from disputing the validity of the order of publication wherein he was notified as ‘ ‘ H. E. Evarts. ’ ’ Mosely v. Reily, 126 Mo. 124; Turner v. Gregory, 151 Mo. 106. (3) Appellants having failed to place their deed on record before the tax suit was instituted were not necessary parties to that action. Yance v. Corrigan, 78 Mo. 94; State ex rel. v. Sack, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169. (4) The judgment is for the right party and should be affirmed. Schmidt v. Neimeyer, 100 Mo. 209'; Jones v. Driskill, 94 Mo. 191; Allen v. McCabe, 93 Mo. 138; Gibbs v. Southern, 116 Mo. 204; secs. 924, 9206, 9805, R. S. 1899; sec. 219, p. 1206, Wag. Stat. 1872; Laws 1872, p. 114; Bisp. Prin. of Eq. (2 Ed.), sec. 259.
   MARSHALL, J.

— This is an action under section 650, Revised Statutes 1899, to ascertain and declare the rights of the parties hereto to lot 3, and the west half of lots 1 and 2, and the east half of lot 4, of the northeast quarter of section 3, and the west half of lots 2, 3 and 4 of the northwest quarter of section 2, all in township 29, range 6 west, in Shannon county, Missouri: There' was a judgment for the defendant in the trial court, and the plaintiffs appealed.

THE ISSUES.

The petition alleges the corporate capacity of the defendant, and that the plaintiffs own qnd claim the fee simple title to the land in controversy, and that the defendant claims an interest therein by virtue of a sheriff’s deed purporting to convey the land to one A. E. McGflashen, made in 1896, for alleged delinquent taxes for the year 1892, and that the sheriff’s deed, under the tax judgment, is null and void, because the judgment in the tax case was obtained by fraud, and because the court rendering the judgment had no jurisdiction to render the same. The petition further alleges that the plaintiffs have owned the land since 1885, and have paid the taxes thereon ever since then, including the year 1892, which last were paid in the year 1894; that prior to the payment thereof, in 1894, the land had been returned delinquent, by the collector; that in the year 1895 the collector employed one L. L. Munsell to bring suit to enforce the State’s lien for back taxes, in Shannon county, and that when the collector delivered to Munsell the back tax book of said county, he noted thereon the fact of plaintiffs’ payment of said delinquent taxes on said land, and cautioned Munsell not to bring the action against the plaintiffs’ land, for the' reason that all taxes had been duly paid thereon; that Munsell being so employed to bring the back tax suits, entered into an unlawful agreement with the publisher of a certain newspaper in Shannon county, to the effect that Munsell procured orders of publication in cases pending for the enforcement of taxes to be published in said newspaper, and that in consideration thereof the publisher of the newspaper agreed to pay Munsell one-half of all fees realized by him for publishing such notices. That in order to make money unlawfully for himself, and in pursuance of said unlawful agreement, and without letting the back tax book show the filing of a suit against the plaintiffs, Munsell fraudulently broug’ht suit against the plaintiffs’ land, for the taxes for the year 1892, and obtained a judgment for said taxes, and caused the land to be sold therefor; that plaintiffs were then, and are now, non-residents of the State of Missouri, and knew nothing of the tax suit, or of the sale under the judgment therein, until five months next before the beginning of this suit, and that the collector and tax attorney knew that the taxes for that year on this land had been paid, and knew that the plaintiffs owned the land, but never caused any process to be served on them, notifying them of the pendency of said suit; that the payment, by them, of the taxes, extinguished the lien of the State for taxes, and that the procurement of the judgment, in manner aforesaid, was a fraud upon the court, and that the judgment and sale were void, and passed no title to the purchaser.

The answer is a general denial, except an admission that the defendant claims title to the land.

.The case made is this:

It was agreed that Peter Duffield, the patentee from the Government, is the common source of title, and the plaintiffs introduced a warranty deed from said Duffield to one John M. Stull, dated August 11, 1858, recorded February 12,1859; also a deed from said Stull to Julius King and T. J. McLain, dated August 6, 1869, recorded August 20,1869; also a quit-claim deed from said King to said McLain, dated March.10,1869, recorded November 14, 1869; also an assignment by McLain to Washington Hyde, as assignee, dated May 27, 1876, recorded June 30, 1876; also a deed from said Hyde, as assignee and trustee of McLain, to Isaac Smith and Job J. Holliday, dated December 27, 1879, recorded January 10, 1880; also a quit-claim deed from said Smith to Holliday, dated January 9,1880', recorded February 24,1880; also a quit-claim deed from Holliday to Henry E. Evarts and Mary Evarts, dated July 17, 1885, and recorded April 7, 1900. Thereupon the plaintiffs rested.

The defendant then offered a sheriff’s deed purporting to convey the interest of David Wilson, Job J. Holliday and H. E. Evarts in the land to A. E. Mc-G1 ashen, dated September 17,1896, recorded September 17, 1896, and said deed recited a judgment for back taxes for the year 1892 against said land, amounting to $8.85, and a sale underpaid judgment by the sheriff to said McGlashen. The plaintiffs objected to the introduction of said deed because the court had no jurisdiction of the plaintiffs in this case, the defendants in that case, they not having been served with process; also because the court had no jurisdiction of the land, because the taxes on the land for the year 1892 were paid before the suit was instituted, the judgment rendered or the sale made; also because the judgment in the tax suit was obtained by the fraudulent contrivance of the tax attorney, representing the State. In support of those objections the plaintiffs introduced the files in the tax suit. That suit was entitled the State of Missouri, at the relation and to the use of F. M. Chilton, collector of the revenue, etc., plaintiff, v. David Wilson, Job J. Holliday and H. E. Evarts, defendants. Mary E. Evarts, the other plaintiff herein, was not made a party to that suit. The files in the tax case further showed that there was no service of process on any of the defendants, and that the defendants were brought in by an order of publication, based upon the allegation in the petition that the defendants in said suit were non-residents of the State, and.that no affidavit showing that the defendants were non-residents was filed at any time in that case. It nowhere appears, from the abstract of the record, that the petition in the tax case was verified. In further support of the objection the plaintiff called as a witness, F. M. Chilton, who testified that from 1891 until March, 1897, he was the collector of the revenue of Shannon county.- He identified the delinquent tax book for the year 1893 and all prior years, called the Consolidated Delinquent Tax Book, and further testified that the land in question was entered on that book as delinquent for the year 1892, but that subsequent to his receiving the book the taxes were paid, and that he marked them paid on the book, and that they were paid to him and that he acounted for them in settlements as collector, and that he instructed the tax attorney not to bring suit therefor. He further testified that on the delinquent tax book for 1893, IT. E. Evarts was entered as the owner of this land, by the county clerk; that, as collector, he had previously had correspondence with Mr. Evarts about the payment of his taxes, but that Mr. Evarts had an agent in the county who generally paid the taxes; that L. L. Munsell was the tax attorney employed by him to bring tax suits, and that he was engaged in the abstract of title business, and in paying taxes for owners of land; that the consolidated back tax book for 1895 again showed the land to be delinquent for the year 1892, and that said book further showed that suit was filed for the collection of said taxes, on the 10th of January, 1896, against David Wilson and others; that said delinquent tax book was made out in 1895 after the plaintiff had paid the taxes for 1892, to-wit, in 1894; that when taxes were paid he indicated the same on the delinquent tax book by making opposite the tract a circle with three cross marks therein; that the delinquent tax book for 1895 did not show who “the others” were, who were joined with David Wilson, as the defendants in the tax suit. The witness further identified a tax receipt for the year 1892, showing that it had been paid to him by the plaintiff on the 8th of June, 1894, covering taxes for that year on the land in question. The plaintiffs then introduced said tax receipt in evidence. The defendant objected thereto, because it was no defense to its title or to the tax sale; that it might have been defensive matter to the original tax suit if it had been pleaded, but that after judgment it was not competent evidence to impeach the tax deed to the defendant. The court overruled the objection and admitted the tax receipt. • •

Plaintiffs also offered in evidence an abstract of title to the land,'which was Examined and recertified by L. L. Munsell, in 1889, for the purpose of showing that said Munsell, as tax attorney, knew that the plaintiffs were the owners of this land at the time he instituted the tax suit. The court admitted the abstract and found that it was in the handwriting of said Munsell, but that the endorsements on the back thereof of the plaintiffs ’ names, was not, in the court !s. opinion, in the handwriting of said Munsell.

Plaintiffs then called Joshua Sholar, who testified that during the year 1896, and until December of that year, he was the editor of the Current Wave, a newspaper published in Shannon county, and that he had an arrangement with Munsell whereby he was to pay Mun-sell from ten to twenty-five per cent on all amounts received by him for the publication of notices to defendants in tax suits, and that he did so pay such amounts to him.

Plaintiffs then called S. A. Cunningham as a witness, who identified a letter, dated December 23rd, 1901, to Mr. Evarts, which informed him that the land in question had been sold in 1896, for the taxes of 1892. This was for the purpose of showing that this was the first information the plaintiff had of the tax sale.

The defendant then admitted that plaintiffs had paid the taxes on the land for the years 1893 to 1900, inclusive, and that they had offered to pay the taxes for 1901, hut found that defendant herein had paid them. .

Thereupon the court overruled the plaintiffs’ objection to the sheriff’s tax deed to McGlashen.

The defendant then introduced deeds showing a conveyance of the land from McGlashen to Rainey, and from Rainey to "Weaver, and from Weaver to Corcoran, and from Corcoran to Pollard and from Pollard to the defendant; the last deed being dated October 22nd, 1901, and recorded November 6th, 1901. The defendants then admitted that Munsell had brought tax suits during the years 1893 and 1895, and that he had never brought suits where the mark, heretofore set out, appeared opposite the tract of land; which mark was the method employed by the tax collector to indicate that the taxes had been paid. This was all the evidence in the case.

Thereupon the court entered judgment for the defendant, stating in the judgment that it did so upon the authority of Hill v. Sherwood, 96 Mo. 125. After proper steps the plaintiffs appealed.

I.

At the date of the institution of the tax suit in 1895, Job J. Holliday was the apparent owner of the land, as shown by the records in the office of the recorder of deeds of Shannon county. The tax suit was instituted against David Wilson, Job J. Holliday and H. E. Evarts. It nowhere appears that Wilson ever had any title to or interest in the land. At that time, the hooks in the office of the recorder of deeds did not show that H. E. Evarts had any interest in the land. The plaintiffs had purchased the land in 1885, and had been paying taxes thereon either directly to the collector or more usually through their local agent, L. L. Munsell. The taxes for the year 1892 were assessed against H. E. Evarts as owner. Neither Holliday nor Wilson nor anyone else appeared on the delinquent tax hook of 1893 or of 1895, as having any interest in the land. The delinquent tax book for the year 1893 showed that the taxes for the year 1892 were paid by Evarts, on June 28th, 1894. In making up the consolidated tax book for the year 1895 and prior years, the county clerk entered these lands as delinquent for the year 1892, and named H. E,. Evarts as owner. In 1893 the collector of the revenue employed Munsell as .the tax attorney. Mun-sell had previously examined the title to these lands, in I. 889, and knew that the plaintiffs were the owners thereof, and had made an abstract of title, showing such to be the fact. Before the suit for back taxes was instituted, the plaintiffs had paid the back taxes to the collector, and the collector had instructed the tax attorney not to bring suit for these back taxes. When the delinquent tax book for 1895, and prior years, was placed in the hands of the collector, by the county clerk, and when, by mistake, the county clerk had entered therein that these lands were delinquent for the year 1892, the tax attorney, contrary to the previous instructions of the collector, and with knowledge that the taxes for 1892 had been paid in 1894, instituted a tax suit and entered a note of that fact on the delinquent tax book, opposite the discription of the land, showing that the suit had been brought against David Wilson and others, and without specifying who the others were. The petition in the back tax suit alleged that the defendants were non-residents of the State, and upon this showing, and without any affidavit as to that fact, an order of publication was made by the court, and published in the Current Wave, a newspaper published in Shannon county. The defendants did not appear and the land was sold, on the 10th of September, 1896, by the sheriff to satisfy the tax judgment, and A. E. McGrlashen, a third party, became the purchaser, and thereafter the plaintiffs continued to pay the taxes up to and including the year 1900, and offered to pay np the taxes for 1901, hut ascertained that defendant had paid them. The defendant became the purchaser by mesne conveyances from McG-lashen, by deed, recorded November 6th, 1901. Thereafter, on the 28th of July, 1902, this action was brought.

The first question, therefore, that arises on this record, for adjudication is, whether evidence was admissible in this case to show that the taxes for the year 1892 were paid before the. institution of the tax suit, or judgment therein, or the sale thereunder, and thereby to defeat the defendant’s title acquired by the tax sale to McGlashen, a third, innocent party.

It will be remembered that although the plaintiffs acquired the title to the land on the 17th of July, 1885, and although they paid the taxes on the land every year thereafter until and including the year 1900, and although the land, during all these years, was assessed to H. E. Evarts, nevertheless the plaintiffs never recorded their deed until the 7th of April, 1900.

The doctrine in this State is that a purchaser at a tax sale, under a judgment for taxes, where the record, owner is made the party defendant, acquires good title as against the holder of an unrecorded deed from such apparent owner. [Vance v. Corrigan, 78 Mo. 94; Allen v. Ray, 96 Mo. 542; Payne v. Lott, 90 Mo. 676 ; Crane v. Lameron, 98 Mo. 567; Lucas v. Land Co., 186 Mo. 448.]

The rule in this State also is that a judgment in a tax suit cannot be collaterally attacked by one who was a defendant in that suit, and who was properly brought in by personal service or by publication, nor can the title of a purchaser under such a judgment be defeated by showing that the taxes, for which the judgment was rendered, had been paid before the institution of the suit, before the judgment was rendered, or before the sale under the judgment. [Hill v. Sherwood, 96 Mo. 125; Jones v. Driskill, 94 Mo. 190; Gibbs v. Southern, 116 Mo. 204.]

Under the law as it existed prior to 1877, when the land was sold by the collector, the law expressly provided that the deed might be invalidated by showing, “first, that the land conveyed by such deed was not subject to taxation at the time of the assessment thereof, under which assessment such sale was made; second, that taxes due thereon had been paid, according to law, before the sale; third, that such land had been duly redeemed, according to law, or that tender of the redemption money had been made before the execution of such deed.” [2 Wagn. Stats. 1872, chap. 118, sec. 219, p. 1207.]

In 1877 the law in reference to the collection of taxes was entirely changed and instead of having the county court order the sale of the land, and the collector conduct the sale and make the deed, the act of April 12,1877, required that suits should be brought, in courts of competent jurisdiction, for the collection of delinquent taxes, and that parties should be brought in in the same manner as was provided by law in ordinary civil actions affecting real or personal property, and that the general laws of the State as to practice and proceedings in civil cases should apply to tax suits as far as applicable. [Laws 1877, p. 386, sec. 6; now sec. 9303, E. S. 1899.]

Thus the whole tax collecting system was changed in this State, and now it is no more competent to impeach a judgment or a title obtained by a sale thereunder, on the ground that the taxes for which the judgment was entered had been paid or that the land was not subject to assessment, or that it had been redeemed, than it would be competent for an ordinary litigant to defeat a judgment, based on a note or other obligation, on the ground that it had been paid before the suit was brought or the judgment entered or the sale thereunder had.

These considerations clearly show the theory of the cases cited which establish the rule above stated. This rule, however, is based upon the predicate that the party seeking to attack the judgment or the title acquired under it, was properly brought in as a party in the tax suit. Of course, if the attacking party was not a party to that suit, either by not having been made a party thereto or because the steps taken to bring him in were insufficient to accomplish that end, then the judgment is not binding on him. The question, therefore, always is whether or not the attacking party was a party to the tax suit.

In the case at bar the contention of the plaintiffs is that Evarts was not properly brought in as a party defendant in the tax suit, because, although the petition alleged that he was a non-resident of Missouri, there was no affidavit showing such to be the fact. This raises the question, therefore, whether the mere averment or allegation of non-residence in the petition is sufficient to base an order of publication upon, as to the non-resident, or whether there must also be, in addition thereto, an affidavit showing such to be the fact.

It has been above pointed out that section 9303 provides that notices and summons in back tax cases shall be sued out and served in the same manner as in ordinary civil actions, and that the general laws of the State as to practice and proceedings in civil cases shall apply to tax cases as far as applicable. Section 575, Revised Statutes 1899, being the provision of the code in reference to orders of publication in suits, inter alia, for the enforcement of liens against real or personal property, provides that, “If the plaintiff or other person for him shall allege in his petition, or at the' time of filing same, or at any time thereafter shall file an affidavit stating that part or all of the defendants are non-residents of the State, . . . the court in which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the non-residents,” etc., notifying them of the commencement of the suit, etc. In some of the cases may be found language which seems to indicate that there must he an affidavit stating the fact of the non-residence of the defendant, or that the petition which alleges such non-residence must be verified. A critical analysis of the origin and development of the law in this respect in this State shows, however, that if the petition contains an allegation of non-residence, although the petition is not verified, or if the petition be silent on the subject and an affidavit is afterwards filed showing the non-residence of a defendant, the order of publication must be issued by the court, or clerk in vacation, and that either the allegation in the petition, or the affidavit, is sufficient to authorize the order of publication. Prior to the act of February 24, 1849 (Laws 1849, p. 73), there was no such thing known to the laws of this State as bringing in the defendant in a civil action by an order of publication. The practice act of 1835 (R. S. 1835, pp. 450 et seq.), contemplated bringing in a defendant by a summons, to be personally served on him, or by a capias, and the latter could only be issued where the petition was verified. Thus the law stood until 1849 when, by section 8 of article 5 of that act (Laws 1849, p. 78), it was provided that, “If any plaintiff, or other person for him, shall file with his petition an affidavit stating that part or all of the defendants are non-residents of the State, the court, or clerk in vacation, shall make an order directed to the non-residents, notifying them of the commencement of the suit,” etc. Thus the law stood until the revision of 1855, when it was changed so as to read as follows: “If any plaintiff, or other person for him, shall allege in his petition, or file an affidavit stating, that part or all of the defendants are non-residents of the State, the court, or clerk in vacation, shall make an order directed to the nonresidents, notifying them of the commencement of the suit,” etc. [Sec. 13, art. 5, chap. 128, p. 1224, R. S. 1855.] In the revision of 1865 the order of publication was authorized in particular classes of eases, but there was no change from the revision of 1855 as to the aliegation in the petition or in the affidavit as to the non-residence. [Sec. 13, chap. 164, p. 655-, R. S. 1865.] In the revision of 1879 there was no change. [Sec. 3494, art. 4, chap. 59, p. 597, R. S. 1879.] The revision of 1889 was the same except the language in reference to the allegation of non-residence was changed so as to read: “If the- plaintiff, or other person for him, shall allege in his petition, or at the time of filing the same, or at any time thereafter shall file an affidavit stating, ’ ’ etc., and such is the language of section 575, article 4, chapter 8, page 244, Revised Statutes 1899.

Thus it appears that from 1849 to 1855 in order to obtain an order of publication it was necessary for the plaintiff or some person for him to file with the petition an affidavit of non-residence, but since 1855 it has been sufficient for the plaintiff, or some person for him, to allege in the petition, or file affidavit at the time of filing the petition (and since 1889 to file such affidavit at any time after the petition is filed), alleging non-residence. Pleadings in this State are not now required ordinarily to be verified, and such is the fact in reference to tax suits. There is, therefore, nothing in the contention of the plaintiff that the order of publication in this case was issued upon the mere allegation of non-residence in the petition, without the petition being sworn to, and without any affidavit of the fact of non-residence being filed. When the party is properly brought in by an order of publication in a tax suit, the judgment in that suit is as impervious to collateral attack for any defect or imperfection in the service, that is not apparent upon the face of the record in the tax case, as in any other kind of a judgment. [Tooker v. Leake, 146 Mo. l. c. 430; and cases cited; Crossland v. Admire, 149 Mo. l. c. 656; Parker v. Burton, 172 Mo. 85; Cummings v. Brown, 181 Mo. 711; Kelly v. Murdagh, 184 Mo. 377; Land Co. v. Land & Cattle Co., 187 Mo. l. c. 435.]

As was well said by Yalliant, J., in the case last cited: “The order of publication serves, as far as it can, the office of the summons; but though a summons may be altogether correct in form it does not avail to bring the defendant into court unless it is served on him according to law. When the law is driven, from the necessity of the case, to authorize a judgment that will affect the property rights of an absent or unknown defendant, on a notice by mere publication in a newspaper, it demands of the plaintiff a strict compliance with the terms of the statute under which the publication purports to have been made. ’ ’ In fact, all through the cases, especially tax cases, runs the thread that a strict compliance with the statute is demanded, and that the court will critically examine every step and feature of the proceeding in order to determine whether the owner of the property has lost his right thereto, and the purchaser at the tax sale has acquired it. In the case at bar, no essential requirement of the law has been neglected, with respect to basing the order of publication upon the allegation of non-residence in the petition, and in not requiring an affidavit to that effect.

II.

The plaintiffs contend that the order of publication was wholly insufficient and that the title of the purchaser acquired at the tax sale is a nullity, because the order of publication was to H. E. Evarts, whereas his name was Henry E. Evarts.

The court, following the strict rules of interpretation, especially in tax cases, above indicated, has held that while the general rule of law is, that in a notice or process the first or Christian name is necessary to a valid judgment, and the middle name is no part of defendant’s name, still in tax cases, if the suit is against a nonresident, in the name by which he has described him-, self in deeds, even though that be simply initials in place of a full Christian name, the notice is sufficient, but that where the non-resident defendant was simply known as “ Vaughn Turner, and was so described in the tax assessment, notice of publication and judgment, when his full name was Singleton Vaughn Turner, by which full name he had been described in a conveyance to him of the land charged with the taxes, the sheriff’s deed under the judgment, in the suit where he was' simply described as Vaughn Turner, was insufficient to convey the title.” [Turner v. Gregory, 151 Mo. 100.]

In Vincent v. Means, 184 Mo. 327, it was held that a judgment against M. C. Vincent, under an order of publication, in a suit wherein he was notified by publication under the name of M. C. Vincent, was void, as against Minos C. Vincent, there being no evidence to show that the defendant had ever received deeds to the land or conveyed the land in the name of M. C. Vincent, and the general rule was announced, “that the first or Christian name of both the plaintiff and defendant in all judicial proceedings should be set forth in full. ‘Initials are not a legal part of the name, the authorities holding the full Christian name to be essential.’ ” But that this rule was subject to exception in cases where the party defendant received deeds or made deeds using only his initials.

In Spore v. Ozark Land Co., 186 Mo. 656, which was a proceeding like this, under section 650, it was held that the judgment for taxes, where the owner was brought in by publication against W. D. Spore, was void, and the purchaser at the sale thereunder acquired no title as against William D. Spore, the deed to thé land sold for taxes having described the defendant as William D. Spore.

Gillingham v. Brown, 187 Mo. 181, was an action under section 650. It was held that a judgment in a tax suit against A. TI. Gillingham, and a sale under that judgment, were void as against Aubrey H. Gillingham, where the deed which originally conveyed the land to Gillingham described him as Aubrey H. Gillingham.

In the case at bar the deed to the plaintiffs had not been recorded at the date of the institution of the back tax suit. The land was assessed to H. E. Evarts, but the tax attorney who brought the suit knew that the plaintiffs, Henry E. Evarts and Mary Evarts, were the owners. Henry E. Evarts had done nothing to induce anyone to believe that his name was H. E. Evarts. He was a non-resident of the State. The ordinary rules of law, therefore, obtain in this case, that in order to bring him legally into court by an order of publication, he wás entitled to be sued and notified according to his full Christian name and surname. Following the principle announced in the cases cited, the judgment and sheriff’s deed following the judgment must be held to be void, and to confer no title upon the purchaser at the tax sale.

III.

It is next contended that the tax judgment is void because of fraud in the very concoction thereof. The fraud relied on consists in the fact that the tax attorney who brought the tax suit had formerly been the agent of these non-resident plaintiffs, for the payment of the taxes on the land in question, and that he knew before he brought the suit that the taxes for the year 1892 had been paid (counsel in the briefs say by the tax attorney himself, as agent of the plaintiffs, but the abstract of the record does not show that to be the fact), and in-addition thereto said tax attorney had been ordered by the tax collector not to bring suit for the taxes for the year 1892 against the land in question, because they had been paid. Yet in spite thereof he instituted the suit, and entered on the delinquent tax book that the suit was against David Wilson, and others, thereby not disclosing to the collector, or anyone else, who the others were; and that he did so for the purpose of sharing in the fees that would accrue from the publication of the notice of the suit, and that he did share therein.

There can be no question about the bad faith of the tax attorney in so doing, and in Harness v. Cravens, 126 Mo. 232, a conveyance to the attorney in a back tax case, who became the purchaser at the tax sale, under a judgment for taxes that had been paid before the suit was instituted, was held to be void. That case is not here referred to as establishing the general rule in this State, for, as herein pointed out, the mere fact that the tax had been paid before the suit was instituted or the judgment entered or the sale made, would not defeat the title of the purchaser, or render the judgment void, if the defendant had been properly brought into court, but it is referred to for the purpose of showing that if the tax attorney in this case had been the purchaser at this sale, no court of conscience would hesitate to declare his title void, because of his actions in the premises, but a third — and so far as the record shows, an innocent — party became the purchaser at that sale. This puts a different phase on the case, and distinguishes this case from the case of Harness v. Cravens, where the attorney became the purchaser. Here one of two innocent parties must suffer, and the guilty party is not before the court to receive the punishment he deserves. The plaintiffs were negligent of. their rights by not recording their deed to the land until after the tax sale. The purchaser at the tax sale, therefore, had a right to rely upon obtaining the title of the apparent owner, and of getting a better title than that acquired under an unrecorded deed from the apparent owner. The suppression of the fact from the knowledge of the court that the taxes had been paid was not such a fraud in the very concoction of the judgment as made the judgment void. In Hamilton v. McLean, 139 Mo. 678, speaking to this point, Burgess, J., said: “The fraud must be in the procurement of the judgment, and not simply in the cause of action on which the judgment is founded, and which could have been interposed as a defense, unless its interposition as a defense was prevented by tbe fraud of tbe adverse party.” [See, also, Bates v. Hamilton, 144 Mo. 1.]

Tbe conduct of the tax attorney in bringing the suit after he knew the taxes had been paid did not prevent the defendant from interposing a defense of payment to the suit, and did not, of itself, constitute a fraud in the procurement of the judgment, there being nothing here to show that there was any fraud practiced upon the defendant to prevent his interposing that defense.

For the foregoing reasons the judgment of the circuit court is reversed and the cause remanded with directions to the circuit court to enter a decree in favor of the plaintiffs.

All concur.