author: CRAVES, J.

text:
    WABASH RAILROAD COMPANY, Appellant, v. SLOOP.
    Division One,
    December 22, 1906.
    1. CONTRACT OF AFFREIGHTMENT: Theory at Trial. Where in a suit by a railroad company, for the difference between the schedule freight rate and the rate paid, the case was tried below and presented on appeal on the theory that no contract to transport the goods at a rate less than the schedule rate could be made, appellant is bound by that theory.
    2. -: Under Charge: Right of Carrier to Recover. Where there was evidence to support the court’s finding that there was a contract to carry defendant’s goods at a rate less than the schedule rate, if, under the Interstate Commerce Act and the evidence in the case, such contract can be 'upheld, then the carrier is not entitled to recover from the shipper the difference between the schedule rate and the rate charged and paid at the time the goods were shipped; if said contract cannot be upheld, then the carrier is entitled to recover.
    3. -: Schedule Rates: Posting. Under the Interstate Commerce Act the shipper is not bound by the schedule rates unless such schedules are “posted in two public and conspicuous places” in the depot where the goods are received for transportation. The company is. And a notice by the Interstate Commerce Commission to the company that a posting of a notice 'to the effect that the agent had the schedules and that they could be inspected upon application, is not a compliance with that act.
    4. -: Carrier’s Right to Collect Schedule Rate. Unless the railroad company has posted its schedule- of rates as the Interstate Commerce Act requires, it cannot recover from a shipper the schedule rate for carrying his goods, but is bound by the contract by which it agreed to carry his goods for a less rate.
    5. -: Presumption Schedules Were Posted. Where the Interstate Commerce Act is relied upon for a cause of action or for a defense, it cannot be presumed, in the absence of proof, that the railroad company did its duty and posted the schedule of rates as the law required. [Overruling, on this point, Wyrick v. Railroad, 74' Mo. App. 406.]
    6. -: Overcharges: Counterclaim: Federal Jurisdiction. Until the schedule of tariff rates is established and posted as required by the Interstate Commerce Act, the carrier and shipper are free to agree upon a rate, and such contract is en-forcible. If the contract calls for a rate of 16 cents per hundred pounds for an interstate shipment, and the carrier, after discovering that that rate was less than the schedule rate, exacts of the shipper a higher rate (29 cents) than the contract price (16 cents) on a part of the goods, and sues the shipper for the difference between the schedule rate (26 cents) and the 16 cents paid on the balance of the goods, the shipper may, by way of defense, set up a counterclaim for the overcharge above the contract rate, and the State court will have jurisdiction to render judgment on such counterclaim. That contract, if valid in part, is valid as a whole. And if the carrier could not recover the difference between the .contract rate of 16 cents and the schedule rate of 26 cents, neither could it defeat the shipper’s counterclaim for the overcharges, for in such case the overcharges are not such as fall within the purview of the Federal statute, there being no schedule of tariffs posted, and consequently that statute cannot be invoked against the contract.
    7. APPELLATE PRACTICE: Judgment for Right Party. Where the judgment is for the right party it will be affirmed, notwithstanding numerous errors committed by the trial court in the course of the trial.
    Appeal from Scotland Circuit Court. — Hon. E. B. McKee, Judge.
    Affirmed.

      George S. Grover for appellant.
    (1) Upon the undisputed facts in this case the judgment below should have been for plaintiff. Gerber v. Railroad, 63 Mo. App. 145; Wyrick v. Railroad, 74 Mo. App. 406; Ward v. Railroad, 158 Mo. 226. (2) The counter-claim contained in. defendant’s answer should have been stricken out on plaintiff’s motion. Walker v. Lewandovska, 15' Mo: App. 581; Carlisle v. Railroad, 168 Mo. 652.

      Fogle & Saccbury for respondent.
    (1) Respondent contracted and agreed with appellant to pay it sixteen cents per hundred pounds, to ship his timothy seed from Queen City, to Chicago, and appellant accepted and agreed to this and hilled respondent’s seed out at that rate, and gave respondent a hill of lading containing the contract. This contract is valid and binding, unless in violation of some law. 6 Cyc., 420, 416, 431, 433; Landees v. Railroad, 50 Mo. 346; O’Bryan v. Kinney, 74 Mo. 125; Holten v. Railroad, 61 Mo. App. 204; Gann v. Railroad, 72 Mo-. App. 34. (2) Appellant cannot claim the benefit of the Interstate Commerce Act, or any of its provisions as against a shipper, until it has fully complied with the provisions of said act. This it has not done, as it admits. See act; Wyrick v. Railroad, 74 Mo-. App. 406; 4 Elliott on. Railroads, sec. 1686; San Berbarndino v. Railroad, 3 Interst. Com. R. 138; Kellerman v. Railroad, 136 Mo. 188; In re Rate Sheets, 1 Interst. Com. R. 316; In re Railroad, 2 Interst. Com. R. 496; Phelps v. Railroad, 4 Interst. Com. R. 363; Lehmann v. Railroad, 3 Interst. Com. R. 706; Coup-land v. Railroad, 61 Conn. 531; In re filing Copies, etc., 1 Interst. Com. R. 76; In re Passenger Tariff, 2 Interst. Com. R. 445; Town of East Hartford v. Bank, 49 Conn. 539 ; Upton v. Triblecock, 91 U. S. 45; Cairns v. Railroad, 4 R. & Canal Traf. Cas. 221; Walkinson v. Railroad, 3 Nev. & Mac. 446; Clonmel Traders v. Railroad, 4 R. & Canal Nev. & Cas. 92-; Myrick v. Railroad, 107 U. S. 108; Stewart v. Railroad, 3 Fed. 768-; Railroad v. Horne, 5-9 S. W. 134; Railroad v. Leatherwood, 69 S. W. 119'; Paddock v. Railroad, 60 Mo. App. 328; Ward v. Railroad, 158 Mo. 226. (3) But if appellant had complied with the Interstate Commerce Law in printing and posting the schedule of rates in the depot as required by said act, and then thereafter contracted with respondent to ship his seed at the rate of sixteen cents per hundred pounds to Chicago, this contract would be valid, because there is nothing in said act declaring said contract void. It is .true it fixes a punishment for the party, hut it does not invalidate the ■contract. Paddock v. Railroad, 155 Mo. 543; Railroad v. Railroad, 149 Mo. 245; Utley v. Hill, 155 Mo. 232; City of Clinton to use v. Henry County, 115 Mo. 59; Hickman v. City of Kansas, 120 Mo. 110. (4) Respondent had to pay thirteen cents more per hundred pounds at Chicago, on the five carloads of seed, to obtain his seed and- place them on the market, than he contracted to pay. This amount he can recover. 4 Elliott on Railroads, sec. 1564. (5) Remedy of the shipper against the carrier to recover damages for unreasonable and .extortionate charges at common law re-- • mains until the Legislature, or Congress, sees fit to enact a statutory remedy. Winsor Coal Co. v. Railroad, 52 Fed. 716. (6) The Interstate Commerce Act, however, declares that nothing in this act contained shall in any way abridge or alter the remedies now existing at common law, or by statute, but the provisions of this act are in addition to such remedies afforded by the Federal statute; therefore, are cumulative and not exclusive. Section 22, Interstate Commerce Act.
   CRAVES, J.

Plaintiff by its petition states that it is a common carrier, a railway corporation; that during the year 1902 it transported nine car-loads of timothy seed for defendant from Queen City, Missouri, to Chicago, Illinois; that in compliance with the Interstate Commerce Act of 1887 and subsequent amendments thereto, it filed with the Interstate Commerce Commission, in the city of Washington, its printed schedule or tariffs, showing the rates of freight then in force, from all points on its railway in one State to points in another State; “that said schedules or tariffs were then, as now, duly printed, published and filed by plaintiff in strict conformity to said law of the United States then in force;” that the rate on timothy seed then in force and fixed by said schedules and tariffs, was twenty-six cents per hundred pounds from Queen City, Missouri, to Chicago, Illinois; that by mistake, plaintiff’s agent billed out four car-loads of said seed at sixteen cents per hundred pounds; that said seed was delivered to defendant’s consignee before said mistake was discovered; that on these four car-loads, the difference between the rate fixed in said schedules or tariffs, twenty-six cents per hundred pounds, and the rate of sixteen cents per hundred pounds, amounted to $188.58; that in the shipment of the other five cars, the agent of plaintiff, by mistake, billed them out at twenty-nine cents per hundred pounds; that the full twenty-nine cents per hundred pounds was collected before the mistake was discovered; that by reason of the overcharge of three cents per hundred pounds, the plaintiff collected $66.61 more .than should have been collected; that the mistake was never discovered until after delivery to defendant’s consignee; that immediately after the discovery of said errors, it demanded of the defendant the sum of $121.97, or the difference between $188.58 and $66.61, which demand defendant refused.

The action for said sum of $121.97 was then brought in the circuit court of Schuyler county, but was afterwards taken to Scotland county on change of venue, where it was tried.

The answer is first a general denial. Then for further answer, the defendant averred that by contract with plaintiff’s agent, the plaintiff agreed to transport timothy seed for him from Queen City, Missouri, to Chicago, Illinois, for the price of sixteen cents per hundred pounds, and defendant agreed to pay said sum; that in pursuance of said agreement, defendant delivered to plaintiff the nine car-loads of seed; “that the plaintiff issued to the defendant bills of lading for the said nine car-loads of timothy seed at the rate of the stipulated price aforesaid, to-wit, sixteen cents per hundred pounds; that the defendant paid the plaintiff and the plaintiff accepted sixteen cents per hundred pounds for the freight on four car-loads of said timothy-seed ; that thereafter plaintiff refused to accept the sixteen cents per hundred pounds for the remaining five car-loads of timothy seed as aforesaid, but demanded of the defendant twenty-nine cents per hundred pounds on five car-loads of timothy seed and wrongfully and unlawfully refused to accept the sixteen cents per hundred pounds and refused to turn over the said five carloads of timothy seed to the defendant unless the defendant would pay twenty-nine cents per hundred pounds thereon; that the defendant was compelled to pay the plaintiff in order to obtain- his said timothy seed, which payment was made under protest and was not justly due to payment, the amount of twenty-nine cents per hundred pounds which he did under protest in order to obtain his said timothy seed and place them on the market; that the amount of said five car-loads of timothy seed was 221,978 pounds and at twenty-nine cents per hundred pounds, amounted to $643.74, which sum defendant was compelled to pay as aforesaid; that the amount actually due the plaintiff on said timothy seed according to the terms of said contract was $355.-18; but the difference in said amounts is $288.56, which defendant was compelled to pay and did pay under protest to the plaintiff. Wherefore, defendant prays judgment for the sum of $288.56, with interest and cost of suit.”

Plaintiff moved to strike out all that part of the answer except the general denial, and the admission of plaintiff’s corporate capacity, and the transportation of the seed. The reasons assigned in said motion follow:

“1. Because said part of said answer does not constitute a defense to plaintiff’s action.
“2. Because, under the Interstate Commerce Law, as set forth in plaintiff’s petition, a shipper cannot sue in a State court to recover damages from a railroad company for charging him rates in excess of those permitted by the said Interstate Commerce Act.
“3. Because a court of the United States is the only forum vested with jurisdiction to hear and determine a controversy in which a counterclaim appears, as is attempted to be set up in said lines of said answer.
“4. Because this court has no jurisdiction to hear or determine the allegations set up by defendant in said lines of said answer.”

This motion was overruled, plaintiff excepting, after which a reply in the nature of general denial was filed.

Prom the evidence there seems to be no dispute as to the amount of seed shipped, and the amount of freight collected. Plaintiff introduced copies of the schedule and tariffs on file with the Interstate Commerce Commission, which shows the rate of twenty-six cents per hundred pounds on timothy seed. Plaintiff further showed the printing and distribution of these schedules or tariffs, and that two copies thereof had been sent to Queen City, Missouri, to be used for public reference. By witness Jennings, who was traveling freight agent for plaintiff in the territory including Queen City, it was shown, that to his best knowledge and belief, the tariff rates were with the agent at Queen City, in the railroad office, and that notice to that effect was posted up in the waiting room of the depot; that these rates could have been obtained by the shipper by calling upon the agent; that the rates themselves were not posted up in the depot, for the reason that they were being constantly torn down, and that the Interstate Commerce Commission had written his company that filing the schedules with the agent, subject to inspection by shippers, with notice of that fact posted in the depot or waiting-room, was sufficient compliance with the law; that in his territory the schedule of rates themselves had not been posted up for some years, but only a notice that such schedules were there subject to inspection.

So far as the record before us shows, the following is all that appears for defendant:

“John Sloop, being sworn, testified:
“I reside in Queen City, Missouri, and have resided there about thirty-two years. I am the defendant in this case.
“Q. Before you made this shipment in controversy, Mr. Sloop, what conversation did you have with the plaintiff’s agent at the depot there?
“Objected to for the reason that the defendant alleges that he had a written contract for the shipment of the seed; that being the ease, all previous conversations are presumed to be merged into that.
“Q. By Mr. Higbee: I’ll ask you if you did not have a written contract, Mr. Sloop? A. Just had a verbal contract; did not have any writing; he gave me a bill.
“Mr. Fogle: We have no written contracts; we have receipts.
“By the Court: Gentlemen, a railroad agent has no authority to enter into a verbal contract.
“Mr. Fogle: An agent has a'right to make a contract within his authority.
“The Court: Yes, he has a right to state the rates.
“Q. Now, what was the conversation?
“Objected to as being incompetent, irrelevant and immaterial.
“Objection overruled and exceptions noted.
“A. T went down to the depot and says to Mr. West: ‘What is the rate on timothy seed to Chicago.’ That was in 1902, in the month of August. He says, ‘Sixteen cents.’ He is there now. Well, I went right out and commenced buying as quick as I could after finding out the rates. When I came back Mr.'West got the car and the seed was loaded, and he made me out a shipping bill to Rosenbaum Bros.; I think Mr. Saxbury has that bill; I sent it to the market along with the bill of lading that I got, the freight bill.
“Q. Now, Mr. Sloop, did you have any knowledge of any schedule of rates for transportation at that time from Queen City to Chicago?
“Objected to because the law presumes he knows the rates; he knows the schedules are in existence, and that he can, see these schedules upon inquiry.
“The Court: The only question there is in this case is whether or not that notice has been stuck up in the depot.
“Plaintiff notes exception.
“A. Nothing, only what the agent told me.
“Q. Was there any schedule of rates or charges for such property posted in the depot at Queen City at that time?
“The Court: The plaintiff says there was not; admits it here in their depositions.
“Mr. Fogle: Let the record show that the plaintiff admits that the schedule rates on timothy seed was not posted in the depot at Queen City at all.
‘ ‘ GROSS-EXAMINATION.
“I am fifty-seven and have lived in Queen City about thirty-two years, was raised right in that neighborhood, born and raised in Schuyler county; I have done'business with the Wabash railroad as much as thirty-two years; I am a merchant; I own a mill, but am not a miller; I have owned a mill near the depot for about fourteen years; I do some shipping over the road; I own two or three farms and raise, buy and ship cattle and hogs; have pursued these various businesses about thirty-two years; I very frequently ask the rates on freight; I don’t know anything about the tariff rate; I asked him what the rate was; I did not inquire for any other, of course not; I shipped this grain to Rosenbaum Bros., and they paid the freight upon it; they sold for my account.”

The plaintiff asked and the court refused the following instructions:

“1. The court declares the law to be, that under the pleadings and evidence in this case, the plaintiff is entitled to recover the sum here sued for, to-wit, the sum of $121.97.
££2. The court declares that under the law this court has no jurisdiction over the subject-matter of the counterclaim pleaded in defendant’s answer.
£ £ 3. The court declares that under the law and the evidence, the defendant cannot recover upon the counterclaim pleaded in his answer.
££4 The court declares that the claim for damages in defendant’s answer is for unliquidated damages, and is not proper subject-matter for counterclaim or setoff.
££5. If the court finds from the evidence the schedule of freight rates read in evidence by plaintiff was on file in the office of the secretary of the Interstate Commerce Commission at Washington, D. C., in February, 1902, and copies thereof were kept on file in plaintiff’s depot at Queen City for inspection by the public, and a notice of that fact was kept conspicuously posted in said depot, and same was done in accordance with a ruling of the Interstate Commerce Commission, then the court declares the finding and verdict should be for plaintiff for $121.97 and against the defendant on its counterclaim.”

The court then found against plaintiff and for defendant upon his counterclaim in the sum of $310.78. Motions for new trial and in arrest of judgment being overruled, plaintiff appealed.

The points raised by appellant will be duly noted in the course of the opinion.

I. Upon the question of a contract between plaintiff and defendant to transport timothy seed from Queen City to Chicago for sixteen cents per hundred pounds, the evidence is very meager, but this question is not urged here by counsel for appellant. The case was tried below and was presented here upon the theory that no such contract could be made; by that theory appellant is bound. There is slight evidence tending to show such contract and being satisfactory to appellant both below and here, we pass it without further question.

Under the “Interstate Commerce Act” pleaded by appellant, and the evidence in this case, should such contract be upheld? If so, then plaintiff, now appellant, was not entitled to recover the amount sued for in this action, but if not, then it was entitled to recover.

Plaintiff in its petition alleges its ownership of a line of railroad from Queen City, Missouri, to Chicago, Illinois. This transaction occurred in 1902, and is, therefore, governed, if at all, by the Interstate Commerce Act, as it then existed. In paragraphs one and four of section 6, page 3156, vol. 3, U.- S. Comp. Stats. 1901, published by West Publishing Company, will be found this law, in so far as applicable to the cause at hand. These paragraphs are as follows:

“That every common carrier subject to the provisions of this act shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon, its route. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately the terminal charges and any rules or regulations which in any wise change, affect, or determine any part of the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous places, in every depot, station, or office of such carrier-where passengers or freight, respectively, are received for transportation in such form that they shall be accessible to the public and can be conveniently inspected.....And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares, and charges as may at the time be in force.”

There are other provisions of said section 6-, of the Interstate Commerce Act, which apply to corporations receiving freight in the United States to be carried through a foreign country, to be delivered to any place in the United States, and still other provisions which apply to freight as well as passengers being carried over continuous lines or routes operated by more than one carrier. These are respectively paragraphs 2 and 5 of the section. Plaintiff, by its petition, being the owner of the entire line, and the line not running through a foreign country, does not fall under either of the two paragraphs just mentioned. We mention this now for the purpose of drawing a distinction later.

Prom the record it appears that plaintiff, appellant, did have its schedule of rates on file with the Interstate Commerce Commission; that it had printed the same, and mailed copies thereof to its agents, including the agent at Queen City; that it had not for several years prior kept such schedules of rates posted in its depot for the reason that they were being constantly torn down, and the Interstate Commerce Commission had written the company that the posting of a notice to the effect that the agent had the schedules and they could be inspected upon application, was a sufficient compliance with the act. It might be remarked here that this letter does not appear in the record.

Does this evidence show a compliance with the law, which says: ‘ ‘ Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous places, in every depot, station, or office of such carrier where such passengers or freight, respectively, are received for transportation in such form that they shall be accessible to the public and can be conveniently inspected?”

We think not. Such schedules are not only required to be printed, but ‘ ‘ shall be posted in two public and conspicuous places in every depot,” etc. The law does not say that notice to the effect that the schedule of- rates may be found with the agent or somewhere else, shall be posted, but the schedule of rates or rather printed copies thereof, shall be posted. This is the means provided by law for bringing home notice to the general shipping arid traveling public, what the rates are, as established. There is no other way prescribed by law to bring knowledge home to the shipper or traveler, as to what the fixed and legal rates are. If the schedule of rates are posted, then the public is presumed to have knowledge of the rates, but not until then, unless actual knowledge be shown. The public has this knowledge whether the rates are read or not, as we have knowledge of a recorded deed- although we never read it. The carrier may be bound by the rates by it published and in the possession of its agent, but the shipper is not bound thereby until notice is brought home to him in the manner prescribed by law.

In our opinion the law is well reviewed by Caldwell, J., of the Supreme Court of Tennessee, in the case of Railroad v. Horne, 106 Tenn. 73, 50 S. W. 134. This was a ease of connecting carriers and fell under paragraph 5 of the Interstate Commerce Act, but applies with equal force here, as to a carrier falling under paragraph one of said section. Paragraph one says the publicity must be given by posting the schedules. Paragraph five requires publicity in such manner as may be directed by the Interstate Commerce Commission. The method of giving notice or publicity is different in the two classes of carriers, but in each it must be given as by the law directed. Judge Caldwell’s language, which we approve, is as follows:

“Ordinarily the rate of affreightment inserted in a bill of lading is binding on the parties, and will be effectuated by the courts as agreed compensation for the services contemplated. It is the contractual standard for computing the price to be paid for the transportation and delivery of the goods; and the tender of that ■ price by the consignee, as a general rule, entitles him to their immediate possession, and will warrant an action of replevin if they be not promptly surrendered. That rule controls the present case, unless the Federal law invoked by the company creates an exception within which it falls. Section 6 of the Interstate Commerce Act of 1887 (chap. 104, 24 Stat. 379), as amended in 1889 (chap. 382, 24 Stat. 855), requires (1) that every common carrier engaged in interstate transportation shall furnish the Interstate Commerce Commission a copy of its schedule of rates, and thereafter printand publicly post it at each station upon its line; (2) that all connecting carriers engaged in interstate transportation on joint schedules of rates shall in like manner file a copy thereof with that commission and thereafter make the same public when, where, and in such manner as the commission may from time to time require; (3) that the rates, when so established, shall not be changed except upon prescribed notice. The tenth section of the act imposes a large penalty for a violation of any of these provisions. This legislation, having been passed by the Federal Congress with a view of regulating interstate commerce, undoubtedly supersedes and abrogates all conflicting State statutes and general laws. [Railroad v. Hefley, 158 U. S. 99, 15 Sup. Ct. Rep. 802, 39 L. Ed. 910 ; Railroad v. Harrison (Ala.), 24 So. 552.] A.nd, if applicable in this ease, it is obviously controlling in the defendant’s favor. Is it applicable under the facts disclosed in this record? Manifestly, the act is not self-executing as to the public. It imposes no obligations or restraints upon the public, and in no way affects it, until after certain preliminary steps have been taken by the carrier or carriers. Shippers are not affected by the act until the required publication of rates has been made, and, to bring them within its operation in a given case, the burden is upon the carrier or carriers to show compliance with that condition precedent. If the contest be with respect to a shipment over a single line, the carrier, to have the benefit, of the act, against its patron, must show publication at each of its stations; and, if it be as to a transportation over connecting lines on joint account, they must show that they have made such publication as the commission directed, or the act will not be applied in their favor. It was the latter burden that rested upon the defendant in this case, the transportation here involved having been made by connecting carriers jointly. The record contains no evidence of any publication at any time or place of the alternate rate on which the defendant relied in the court below; nor, indeed, does it contain any evidence that the commission ever directed, that the same should be published at all. The latter omission might with plausibility be urged as an excuse for the former one; that is, the failure on the part of the plaintiff to prove that the commission directed a publication of this rate with some reason might be said to have relieved the defendant of the necessity of proving that publication had been made, if both facts were equally dependent upon affirmative proof for their establishment. Such is not true, however. The publication required by the act is intended for the inspection, information, and advantage of the public. [Railroad v. Heflev, 158 U. S. 101, 15 Sup. Ct. Rep. 802, 39 L. Ed. 910.J And it is certainly contemplated that some publication shall be made in every instance, though the character and extent of publicity to be given by connecting carriers are left to the discretion and direction of the commission. The courts will presume — at least, in the absence of proof to the contrary — that the commission in the discharge of its duty, according to the manifest spirit and clear implication of the act, directed some kind of publication to be made by these carriers when it set the seal of its approval upon their schedule of rates. This record affords no evidence that such direction was not given. Hence, the presumption that it was given is conclusive for the purposes of this litigation, and the defense of the company must fail because it did not prove compliance with that direction. This court cannot say, as did the learned trial judge, that the alternate rate urged by the company should have been published ‘at the initial point of shipment;’ for, in the absence of the direction presumed to have been given, it cannot be known that publication at some other point or points in the route was not deemed sufficient, and directed by the commission. Some publication is presumed to have been directed, but none is shown to have been made. This excludes the case from the operation of the Federal statute, but leaves the plaintiff with his rights under the bill of lading unimpairable and enforceable in this suit.”

To the same effect is the holding of the Texas Court of Appeals, where the Interstate Commerce Act was invoked. In Railroad v. Leatherwood, 69 S. W. l. c. 121, Templeton, J., says: “Appellees had no notice of the alleged rate. Until the tariff was established and published as required by law, it was not binding on the public, and a contract for a different rate would be valid and enforcible. [Railroad v. Horne (Tenn.), 59 S. W. 134.] Unless the tariff rate charged had been established and published in such manner as to make it binding, the stipulation in the contracts made by appellees with the Texas & Pacific Company to pay ‘at the rate of tariff’ would not render them liable to pay more than the rate agreed on. The written contracts executed by appellees cannot be construed to bind them to pay a tariff which had not been legally established.”

We conclude, therefore, that under the evidence in this case, the Interstate Commerce Act pleaded afforded no rights to plaintiff for the reason that it had not brought itself within the purview thereof by posting its schedules of rates as required by that law.

By appellant we are cited to the cases of Gerber v. Railroad, 63 Mo. App. 145; Wyrick v. Railroad, 74 Mo. App. 406; and Ward v. Railroad, 158 Mo. 226. These cases, excepting the Wyrick case, are not out of line with the conclusion we have reached. In the Berber case, supra, it is said, page 146: “In compliance with what is known as the ‘Interstate Commerce Law,’ it printed and posted schedules of through freight rates,” etc. So that this opinion of Biggs, J., in no wise controls the case at bar. The facts are different.

In the ‘Wyrick case, snpra, Smith, P. J., it is true, says that there was no evidence of the filing of the schedule of the rates with the Interstate Commerce Commission, nor of the publication thereof by defendant. He adds that in the absence of proof to the contrary, the Interstate Commerce Commission and the railroad company will be presumed to have performed their duty. To this we do not assent, where the law is relied upon for a cause of action or a defense. The law requires certain conditions precedent, and it devolves upon the party invoking the law to show that it had done and performed the conditions precedent. To this extent this opinion does not properly declare the law and should be overruled. Again, this opinion, page 418, says: “Every shipper must be presumed to know the existence of the schedules and that they are open for inspection. [Gerber v. Railroad, 63 Mo. App. 145.] The plaintiff knew, or by the exercise of ordinary prudence could have known, the regular tariff rate which defendant was allowed to charge on his proposed interstate shipment.”

It will be observed the Gerber case is cited, in .which the posting of the schedules is conceded. If the reading of the Wyrick opinion is that the shipper is presumed to know the schedule rates without the posting or other publicity required by the Interstate Commerce Act, then it is wrong and should no longer be followed. But the real question in the Wyrick case was that the shipper had signed a written contract in which it was recited that the company had two rates •upon live stock, and that the rate given was a special rate, “and understood to be less than the published tariff rate.” That by reason of having signed this contract, without fraud, deceit, imposition or mistake, he was bound by the statements therein and that these recitals were prima facie evidence and established the fact' of a reduced rate as consideration for the contract. So that this case was really disposed of before the learned judge reached the Interstate Commerce Act and his remarks thereon.

In the Ward case, supra, Robinson, J., says that the evidence showed that the rate fixed in the contract was the schedule rate. There is not a word said as to whether the schedule had been posted or not, but it had evidently been printed, so that there is really nothing in this opinion which militates against our views in the case at bar.

We are further cited to Railroad v. Harrison, 119 Ala. 539, and Railroad v. Hefley, 158 U. S. 98, and one or two other cases, but they are not in point. The Hefley case is strongly favorable to our contention. In that case, at page 101, Justice Brewer says: “By section 6 every common carrier, subject to the provisions of the act (and all railroads carrying interstate freight are subject to its provisions), is, for the inspection and information of the public, required to print and publicly post at each station upon its route the schedules of fares and rates for carriage of passengers and property thereon.”

In the Harrison case, 119 Ala. 1. e. 540, the statement of the case reveals: “That the rate in question was less than the proper rate contained in the schedule of rates which had been duly approved by the Interstate Commerce Commission, as required by the act, and duly published and posted as required thereby in defendant’s stations in Atlanta and Birmingham.” It also appears that the carrier in this case was permitted to recover for the very thing sued for in this case, but upon a state of facts entirely different — a' state 'of facts which showed absolute compliance with the Federal law.

A careful examination of all the cases but strengthens the view that the failure of the record in the ease at bar to show a compliance with the law precludes plaintiff from the benefits thereof as a basis of a canse of action and, we will add, as a basis of defense to defendant’s counterclaim.

It therefore follows that the judgment against the plaintiff appellant, on the $121.97 was correct notwithstanding other complaints as to the rulings of the trial court.

EE. We next come to the question of the counterclaim set up in the defendant’s answer and upon which he procured judgment. This counter-claim proceeds upon the theory that there was a contract with plaintiff to transport defendant’s timothy at sixteen cents per hundred pounds. If there was a contract at all, it covered the nine cars. Plaintiff admits that as to the five ears there was an overcharge of three cents per hundred pounds, the difference between its alleged schedule rate and the price actually received, and credits-the account sued upon with such amount. Again, plaintiff, the appellant, does not urge that the contract out of which this counter-claim grew was not sufficiently shown, but contends that a State -court was not the forum for hearing such a claim; that overcharges can only be collected by action before the Interstate Commerce Commission or in the proper Federal court, as provided in section 9’ of the Interstate Commerce Act. It is true, as to the overcharges, within the purview of the Interstate Commerce Act, our court in Carlisle v. Railroad, 168 Mo. 652, has so said. In that case the court, held that the Federal law was not involved-in the case, and for that reason certified the case to the Kansas City Court of Appeals. It would thus appear that what was said by Robinson, J., as to the forum for a trial of a. case of overcharges, was largely unnecessary for the judgment reached and therefore obiter dicta, yet be it what it may be in this regard it is good law and would be applicable to the case at bar, if the overcharges, here, were within the meaning of the Interstate Commerce Act. For snch overcharges, the Federal statute which gives the right of action likewise gives the remedy and the forum. So that we concur in what was said by Judge Robinson in the Car-lisle case. But is this a case wherein there are overcharges within the meaning of the Federal statutes f What we have said as to defendant’s contract and its validity under the law lends much light here. Had the proper steps been taken by the plaintiff to bring itself within the protection of the Federal statute there could have been no valid contract with defendant of the character by him pleaded. But this failure, as we see under the authorities in the first point cited, left defendant the right to make such contract and made such contract valid. If valid in part, it must, by the nature of things, under this state of facts, be valid as a whole. If valid so as to defeat plaintiff’s right of recovery of the difference between sixteen cents, the contract price, and twenty-six cents, the alleged schedule price, then it is valid to the extent of permitting the defendant to recover back that sum in excess of the contract price already collected by defendant. Again, appellant here raises no point that this excess was voluntarily paid, but proceeds upon the theory that although voluntarily paid, or involuntarily paid, the overcharge must be collected through a Federal tribunal. Such was the contention below and such it is here. Barring the question as to the quantum of evidence, both upon the question of the contract and on this counter-claim, which at least could be made stronger, we will pass upon the question urged and seemingly acted upon by both parties.

This counter-claim grows out of the same contract of shipment and falls strictly within our statutory provisions as to counter-claims, and, as above said, if the contract is so far valid as to defeat plaintiff the same contract is sufficient to sustain the counterclaim. If plaintiff could invoke the Federal statute under our holding in the Ward case, snpra, he could recover, but on the other hand if the overcharges are not such as fall within the Federal statute, then it cannot he invoked to divest the State .court of jurisdiction. Overcharges falling within the jurisdiction of the Federal tribunals mentioned in section 9 of the Interstate Commerce Act, are overcharges growing out of an excess of rates over and above the rates fixed by schedules filed, published and posted as required by the Federal act.

We therefore conclude that the defendant could properly maintain his counter-claim in the State court and in this action.

The foregoing, while not in seriatimanswers all of the contentions of the appellant. This likewise gives the appellant the benefit of all the evidence offered and excluded by the court. It follows that, while not without numerous errors upon the part of the trial court, in the course of the trial, the judgment is for the right party and is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    HARRISON MACHINE WORKS, Appellant, v. BOWERS.
    Division One,
    December 22, 1906.
    1. TAX DEED: Assessment Against Record Owner. A tax deed in pursuance to a judgment against one wto bad once owned the land and sold it, the deed being recorded at the time of the judgment and sale, is void. Such person is not the owner, apparent or actual.
    2. -: -: Record of. Deed After Judgment. If an unrecorded deed from the apparent record owner to á "bona-fide grantee be put of record after a judgment against such apparent record owner, hut before sale under execution issued on that judgment, the grantee in such deed will hold the land as against the purchaser at such sale; but he will not hold the title if such deed be recorded after the execution sale.
    3. -: -: Judgment after Record. Where, after tax suit begun against certain parties alleged to be owners, the real owner, not a party, places his deed of record, a judgment thereafter, against the one who was apparent record owner at the 'filing of the suit who voluntarily enters his appearance after the real owner has recorded his deed, and a sale under such judgment, do not affect the title of the real owner.
    4. -: Quieting Title: Perfect Title: Common Source. Where there is a common source of title agreed to, or where the evidence shows a reliance upon a common source by both parties, plaintiff need not go back of the common source to make his case. And this rule should be applied to suits to quiet title, under section 650, Revised Statutes 1899, as well as to ejectments. And applying this rule to this case, it is held that plaintiff is entitled to recover, however defective may be his title prior to a certain judgment and sale for taxes, if both he and defendant claim through the purchaser at that sale, and .plaintiff is shown to have acquired the title of that purchaser.
    Appeal from Texas Circuit Court. — Hon. L. B. Wood-side, Judge.
    Reversed and remanded (with directions).

      M. T. January for appellant.
    . (1) The fact that the deed from Lewis M. Clark to John H. Clark was acknowledged before a justice of the peace in Livingston county did not impair its effect as notice, having been recorded in 1867. Secs. 3118, 3119, R. S. 1899; Williams v. Butterfield, 182 Mo. 181; Geer v. Lumber & Mining Co., 134 Mo. 94; Bank v. Corandel,-150 Mo-. 570. (2) All irregularities in the assessment of taxes are concluded by the tax judgment and can- not be inquired into in a collateral proceeding. Warren v. Manwarring, 173 Mo. 21; Stevenson v. Black, 168 Mo. 549; Lovitt v. Russell, 138 Mo. 474; State ex rel. v. Hunter, 98 Mo. 386; Allen v. Ray, 96 Mo. 542; Jones v. Driskell, 94 Mo. 190'. (3) Because land was sold in a body instead of by smallest subdivisions will not authorize a collateral attack on the sale. Yeaman v. Lepp, 167 Mo. 61. (4) The description of land in the order of publication and judgment in tax sale of 1888 against Elinor F. Wells was sufficient. State ex rel. v. Vaile, 122 Mo. 33; Auditor-General v. Sparrow, 116 Mich. 586; R. S. 1899, sec 9328; Chestnut v. Harris, 43 S. W. 977. (5) Defendant is estopped to deny the title of the common source unless he can trace back to the true owner. Smith v. Lindsey, 89 Mó. 76; Grandy v. Casey, 93 Mo. 595; Gage v. Cantwell, 91 S. W. 119. (6) A suit for taxes is properly brought against the record owner, or the real owner. If against neither, title will not pass by sale under the judgment. Vance v. Corrigan, 78 Mo. 94; Allen v. Ray, 96 Mo. 542. (7) A suit is not begun against a party until he is made a defendant. Jaicks v. Sullivan, 128 Mo. 177; Smith v. Barrett, 41 Mo. App. 460.

      A. E. McGlashan for respondent.
    (1) Lucy T. Collier acquired the title to this land by her purchase at the tax sale of 1879. Lewis M. Clark was the apparent record owner. (2) The tax deed to W. R. Shuck for the taxes of 1886 is absolutely void and conveyed no title: (a) Because the land described in the sheriff’s deed was not the same land described in the order of publication. Stewart v. Allison, 150 Mo. 344; Winningham v. Trueblood, 149' Mo. 575. (b) Because there was no adequate description of the land in the order of publication, (c) Because there was no adequate description of the land in the judgment, (d) Because the order of publication, the judgment and the sheriff’s deed each described different land, (e) Because the tax attorney, W. R. Shuck, was the purchaser at the tax sale, (f) Because the assessment hook on which the tax for 1886 was levied was not certified to at all by the assessor, (g) Because the defendant Elinor F. Wells was a resident of the State, as shown by the. deed record. Payne v. Lott, 90 Mo. 676. (h) Because Elinor F. Wells was not notified before the sale of her land, as provided by section 3199, Revised Statutes'1899. (i.) Because there is no statement in the order of publication that defendants are non-residents of the State, (j) Because the tax judgment was only for $6, while the execution and sheriff’s deed show judgment for $6.59. (k) Because the land was sold in bulk, not having first been offered in 40-acre subdivisions. Roth v. Gahbert, 123 Mo. 30; Yeaman v. Lepp, 167 Mo. 61. (3) Under the maxim, “ ecopressio unius,” only such letters -can be used in tax proceedings as is provided in section 9328, Revised Statutes 1899, and when so used as provided in said section, they will still he insufficient unless the land is so described that it can he identified and located. Lowe v. Ekey, 82 Mo-. 286. (4) There was no evidence to prove that it was common usage to describe the land as •described in the order of publication, or to show that it could he identified and located by such description. (5) When constructive service is had in lieu of personal, there must be a strict compliance with the statute to bring defendant into court and give the court jurisdiction of the subject-matter. Wade on Notice (2 Ed.), 1030; Charles v. Morrow, 99 Mo. 638; Harness v. Cravens, 126 Mo. 588'. (6) The tax attorney, W. R. Shuck, is chargeable with all precedent irregularities, whether he was aware of them or not. Hence, his sheriff’s deed was void. 2 Freeman on Executions (2 Ed.), sec. 340; Harness v. Cravens, 146 Mo. 259. (7) There is no common source of title. Plaintiff has no title. (8) Defendant can attack plaintiff’s title, and if he proves it invalid, the plaintiff is not entitled to a decree. Cage v. Cantwell, 191 Mo. 699; Craton v. Land Co., 189 Mo. 322; Wheeler v. Reynolds, 193 Mo. 279.
   LAMM, J.

This is a suit to ascertain, determine and qniet title under section 650, Revised Statutes 1899, in and to the south half of section 9, township 31, range 7, in Texas county. Plaintiff claims ownership and title (tracing its title hack to the government), and avers that defendant makes a claim adverse to its estate, based on a sheriff’s deed executed on a sale of said lands for taxes, at which one Dooley becamé the purchaser — defendant holding under mesne conveyances from said Dooley.

The answer was a general denial.

The finding was that plaintiff had no title to the lánd, and it was adjudged that plaintiff take nothing, that defendant go hence without day and recover his costs, etc.

From that judgment plaintiff appealed.

It will simplify the case to say that both parties litigant introduced a chain of title and stood on dry, paper titles — purporting to deal with the fee, there being no contingent, reversionary or equitable interests involved and no possession under color of title; or otherwise, in either party — the land being wild and uninclosed, as we understand it.

Plaintiff, to sustain the issues on its part, introduced the following muniments of title:

1. A platbook of original entries showing the land entered by Erastus D'ay in 1859'.

2. A deed from Erastus Day to Lewis M. Clark, dated February 31 (¶) 1859', recorded October 30, 1866.

Plaintiff offered the record of this deed, and defendant objected for the reason it was “not the best evidence.”

Thereupon plaintiff (to account for the absence of the original deed) read the deposition of Cyrus Thomson, president of plaintiff,.who said plaintiff sold farm machinery to one John Hinkle and took notes in payment, secured by a deed of trust on the land in question; that plaintiff had the deed of trust until November 15, Í891, when it was sent to one Leavitt at Houston, Missouri, to1 foreclose, because the notes were unpaid; that at such foreclosure the property was bought in by plaintiff and a trustee’s deed executed, which was filed for record in the office of the recorder of deeds of Texas county and there remained until December 14, 1903, at which time it came into possession of Mr. January, plaintiff’s attorney at Nevada, Missouri; that plaintiff never had possession of said trustee’s deed, nor of said trust deed since it was sent to Mr. Leavitt, and never had possession of any title deeds to the land in controversy and witness knows nothing of the whereabouts of said deeds, and says it is not in plaintiff’s power to produce any of them. On the production of this.testimony, defendant’s objection to the record of the deed from Day to Clark was overruled.

3. A warranty deed from Lewis M. Clark and wife to John H. Clark, dated April 2, 1867, and recorded May 20, 1867.

This deed narrates that grantors and grantee reside in Livingston county, Missouri, and the acknowledgment was taken in that county before one Eli Hannah, a justice of the peace there. Defendant objected to this deed for the following reasons: because it was not acknowledged by a notary authorized to take acknowledgments in Texas county; and because it was acknowledged before a justice of the peace of Livingston county who had no authority to take acknowledgments of deeds to Texas county lands. These objections were overruled.

4. A warranty deed from John H. Clark and wife to Elinor F. Wells, dated April 17, 1879, and recorded April 25, 1879.

5. A sheriff’s deed from McBride, sheriff of Texas county, selling the interests of Elinor P. Wells, Rexford WTells, Ashford H. Stone, J. Sherman, W. R. Shuck, and S. M. Hubbard in the land, under a tax judgment dated May 30, 1888, for the taxes of the year 1886, to W. R. Shuck — said deed dated November 21, 1888, and recorded December 5, 1888.

To this deed, defendant interposed the objection that the land was sold in bulk and not by subdivisions; that the assessment upon which the tax was based was void; that the judgment upon which the deed was based was void in not describing the land in question; and that Wells had no title at the time of the sale. This objection was overruled.

6. A quitclaim deed from W. R. Shuck to Spencer M. Hubbard, dated December 27, 1888, and recorded December 28, 1888.

This deed was objected to by defendant for the reason Shuck had no title; and the objection was overruled.

7. A warranty deed from Spencer M. Hubbard and wife to John W. Hinkle, dated December 10, 1889, and recorded May 4,1891.

Defendant objected to this deed for the reason Shuck had no title, which objection was overruled.

8. A trust deed, with power of sale in the sheriff on failure or refusal of the trustee named to act, from John W. Hinkle and wife to Gr. W. Rhey, trustee for plaintiff, dated May 4,1891, and recorded May 5, 1891.

The abstract states that “this deed was a trust deed in usual form.” It says nothing about the acknowledgment. Defendant objected to the deed and gave as his reason that “it is not a deed under sale and was not such an instrument as should have been admitted to record,” and upon the further ground that the “parties before whom the deed was acknowledged had no seal.” This objection was by the court overruled.

9. A trustee’s deed from said Hinkle and wife, by A. J. Snelson, sheriff and trustee, to plaintiff, dated January 20 1892, and recorded January 23, 1892.

This deed was in usual form and recited that the trustee refused to act. Defendant objected to the deed for the reason it conveyed no title, which objection was overruled.

Plaintiff then offered to prove by one Young, who had lived in Texas county for fifty years, that the land in controversy was wild land, and that plaintiff had paid the taxes on, it every year from 1891 to the time of suit, which offer was rejected by the court and plaintiff duly excepted at the time.

This was plaintiff’s case in chief — all said deeds purporting to convey the land in controversy.

When plaintiff closed in chief, defendant demurred. His demurrer being overruled, he next proceeded to deliver an attack upon plaintiff’s title, and, following that, to produce his own. Said attack was on conveyance No. 5 in plaintiff’s chain. To overturn that deed, defendant produced the original files in the tax suit and offered in evidence the order of publication against Elinor P. Wells, Rexford Wells, Ashford A. Stone, T. J. and J. Sherman. The bill of exceptions makes a call on the clerk to copy the original order of publication “as the same appears on the record, making a fac simile copy of the description of lands as written and give to the attorneys for plaintiff and defendant an exact copy of the description as he inserts it in the transcript.” This peculiar order seems to have been caused by the inability of counsel to agree upon the record in that particular. There is no transcript here from the clerk — the case having been brought up on a short record. When plaintiff’s counsel came to abstract the record, he gave the description of the real estate in this form: “the south one-half of section 9, township 31, range 7.” Respondent files a counter abstract in which the description is as follows: “The I. Y. of section 9, township 31, range 7.” Both parties (apparently) confidently appeal to the original record to sustain their respective renderings of the land description; but both parties (out of abundance of caution, maybe) abstain from producing that original record, or a fac simile of the same here. It will not be necessary to reproduce the order of publication — the foregoing sufficiently showing the point to defendant’s contention.

Defendant next produced the original judgment in said tax proceeding, and this for the purpose of showing an error of land description. There was a call in the bill of exceptions for a fac simile copy of this description by the clerk, for the same reason heretofore indicated, but no fac simile is here. Plaintiff gives his rendering of the description as follows: “the S-2 Section nine (9), Township thirty-one (31) Range seven (7),” etc. — Defendant his, as follows: “the S.'2, section nine (9), Township thirty one (31), Range seven (7),” etc.

At this point defendant renewed his demurrer to the testimony of plaintiff, and the same was again overruled.

Defendant now offered in evidence the land assessment book for the tax of the year 1886. This book was not certified as required by law; and this evidence was intended as a further attack on the sheriff’s deed at No. 5 of plaintiff’s chain of title. Plaintiff objected to the assessment book for the reason that “all these matters were merged into the judgment.” The objection was overruled and plaintiff excepted.

Defendant then introduced the following alleged paper title (all deeds following, covering the land in dispute):

a. The record of a sheriff’s deed conveying the interest of Lewis M. Clark to Lucy T. Collier. The date and the record of this deed are not given, but both must have been subsequent to November 21, 1879, since the deed is based on a judgment for back taxes rendered on that date by the circuit court of Texas county.

Plaintiff objected to this deed for the reason that Lewis M. Clark had parted with his title in 1867. (See No. 3 in plaintiff’s chain of title.) This objection was overruled and plaintiff excepted at the time.

b. Defendant next produced the record of a sheriff’s deed conveying the interests of Lucy T. Collier, W. R. Shuck and Spencer M. Hubbard to Clark Dooley. The date of this deed and the date of its record are not shown, but both must have been subsequent to May 26, 1891, because the deed is based on a judgment of that date for delinquent taxes.

c. The defendant next produced in evidence the record of a quitclaim deed from Clark Dooley to J. E. Organ, dated April 5,1894, and recorded November 10, 1897. •

d. Defendant next produced in evidence the record of a warranty deed from J. E. Organ and wife to H. A. Dalby and B. J. Laucamp, dated July 3, 1901, and recorded July 22nd of the same year.

e. Defendant next produced in evidence a deed from said Dalby and wife and Laucamp and wife to defendant, dated the 10th day of April, 1903, and recorded at a date not shown.

Defendant here rested.

In rebuttal plaintiff’s counsel introduced evidence tending to parry the force and effect of conveyance “ b ” in defendant’s chain of title. To this end, he introduced the files and judgment in the tax suit leading up to that conveyance. Suffice it to say of this evidence that it tended to show the collector of Texas county on January 31, 1891, filed a suit against Lucy T. Collier and W. R. Shnck to recover delinquent taxes for the year 1888 on the land in controversy — said suit being returnable to the May term, 1891, of the Texas Circuit Court. Summons issued to the sheriff of Texas county, and was served on Lucy T. Collier. The suit was based on a back tax bill naming Lucy T. Collier and W. R. Shuck as owners and dated June 9, 1890. Said May term commenced on the third Monday of May. [R. S. 1889, sec. 3380.] On the 26th day of May, 1891, S. M. Hubbard and W. R. Shuck came into open court and waived summons and, as we understand it, entered their appearance — the judge’s docket showing ' thus: “Appearance .of S. M. Hubbard entered;” and the judgment of that date reciting that Shuck and Hubbard “comes [sic] into, open court and waives [sic] summons.” The special execution, following, recites this judgment, was returnable to the November term of said court, 1891, and was executed by a levy on the 6th day of October, 1891. A sale followed and, following that, the execution and acknowledgment Qf a sheriff’s deed to Clark Dooley as purchaser on the 26th day of November, 1891, he acquiring the right and title of Lucy T. Collier, Shuck and Hubbard.

Defendant objected to the foregoing files, and judgment, and the objection was overruled.

This was all the testimony, and on this record defendant asked the court to find the issues for him, which request the court denied.

Plaintiff then asked the court for two instructions, viz: First, that under the law and the evidence the finding and judgment should be for plaintiff; second, that the tax sale of 1888, under a judgment for taxes against Elinor F. Wells and others, is not so void as to be subject to collateral attack. These instructions were refused and plaintiff excepted.

Thereupon the court entered judgment as heretofore set forth — the construction put thereon by defendant’s learned counsel being this: “The court held that neither the appellant nor respondent had established any title, legal or equitable, and dismissed the petition of appellant and rendered judgment against him in favor of respondent for costs only.”

I. If the judgment of the trial court is-susceptible of the construction put upon it by defendant’s learned counsel, in that it is a holding that defendant established no title, legal or equitable (a construction we shall assume is correct without deciding it to be so), then the judgment is right so far. Because:

(1) The sheriff’s deed, in defendant’s chain of title at “a,” purporting to convey the interest of Lewis M. Clark to Lucy T. Collier under a judgment of November 21, 1879, for back taxes is worthless, since the record shows that Lewis M. Clark and his wife parted with their title to John H. Clark by a deed dated April 2, 1867, recorded May 20th of that year. (See No. 3 in plaintiff’s chain of title.)

(2) The same is true of the sheriff’s deed at “b,” purporting to convey the interests of Lucy T. Collier, W. R. Shuck and Spencer M. Hubbard to Clark Dooley, grantee. It will be observed that it is under this sheriff’s deed and mesne conveyances from Dooley that defendant sought to deraign, title. Now, Lucy T. Collier relied for her title on the deed held worthless in the foregoing paragraph. Hence, she had none. Whatever title Shuck had, he got under the sheriff’s deed at No. 5 in plaintiff’s chain of title. Whatever interest he got under that deed he conveyed to Spencer M. Hubbard on December 27, 1888, by the quit-claim deed (recorded the day after) referred to in, No. 6 of plaintiff’s chain of title. Therefore, Shuck was not owner (apparent or actual) at the date of the tax suit in question. But, by reference to the warranty deed at No. 7 of plaintiff’s chain of title, it will be seen that Spencer M. Hubbard conveyed the interest he acquired from Shuck to John W. Hinkle on December 10, 18891 — Hinkle, however, did not record his deed until May 4, 1891.

The failure of Hinkle to put his deed of record left Hubbard the apparent record owner during the interim and if a suit for back taxes had been instituted against Hubbard while the record was in that fix, and such suit had ripened into a valid judgment, sale and sheriff’s deed, it would have passed title to the purchaser and cut away Hinkle’s title — at least this would have been the result if the purchaser at that sale had bought without notice that the apparent or record owner was not the actual owner. [Vance v. Corrigan, 78 Mo. 94; Stuart v. Ramsey, 196 Mo. 404; Lucas v. Land & Cattle Co., 186 Mo. l. c. 456, and cases cited; Wilcox v. Phillips, 199 Mo. 288.]

If an unrecorded deed from the apparent record owner of land to a bona fide grantee be put of record after a judgment against such apparent record owner but before a sale under execution issued on that judgment, the grantee in such deed will hold the land as against the purchaser at such sale; but it is not so if such deed be recorded after the execution sale. See, Davis v. Owenby, 14 Mo. 170, and a long current of authority flowing from that leading case.

Like reason makes like law. Hence, the foregoing proposition has been applied where an attachment was levied on land standing in the name of the defendant in the attachment suit. It has been held that if such defendant part with his title to a bona fide purchaser by executing a deed, which such purchaser had failed to record before the levy of the attachment but which he records prior to a sale under the attachment proceedings, he would hold the land against the purchaser at such sheriff’s sale. [Hannah v. Davis, 112 Mo. l. c. 607; Hope v. Blair, 105 Mo. l. c. 95.]

The foregoing cases but promulgate the spirit and substance of the statutes of this State. For instance, section 923, Revised Statutes 1899, provides that “Every instrument in writing that conveys any real estate, or whereby any real estate may be affected, in law or equity, proved or acknowledged and certified in the manner hereinbefore prescribed, shall be recorded in the office of the recorder of the county in which such real estate is situated.” The next section is as follows: “Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice.” And the next section reads as follows: “No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record.”

The principles of law giving a sheriff’s deed upon a tax judgment and sale precedence over an unrecorded deed from the apparent record owner are but the principles announced in the foregoing statutes and the foregoing cases. The leading case on the effect of a tax deed borrows and uses the same principles applicable to an unrecorded deed from the apparent record owner in cases arising on sheriff’s sales on .ordinary judgments. [Vance v. Corrigan, 78 Mo. supra.] And it has been held in a very late case (Stuart v. Ramsey, 196 Mo. supra), that if the execution purchaser under a tax sale had notice of an unrecorded deed, then, his title acquired at the tax sale was inferior to that of the grantee in such unrecorded deed. The same doctrine was recognized (arguendo) in Allen v. Ray, 96 Mo. 542, and in Vance v. Corrigan, supra.

Reasoning from analogy, it would seem that, after the record of a hitherto unrecorded deed, which record antedated a sale under execution for taxes, the purchaser at such sale must take notice of the record and (having notice of the real status of the title) would not acquire the title of the grantee in such deed.

But is is not necessary for us to decide that question in this case, and we suggest it, hut leave it open. The case at bar is this: A suit was instituted against Shuck and Collier in January, 1891. Neither Shuck nor Collier were real owners; nor were they apparent or record owners at the institution of that suit. The apparent record owner was Hubbard; the real owner was Hinkle. On the 4th day of May, 1891, Hinkle placed his deed of record; and, after that record, Hubbard entered his voluntary appearance to the tax suit as apparent record owner, to-wit, ,on May 26th, and judgment went against him. The trouble with Dooley’s deed is that, at the time Hubbard entered his appearance, he, Hubbard, was no longer the apparent record owner —ownership (apparent and real, record and actual) had merged in one man and that, Hinkle.

It is not necessary to comment on the suggestive condition of things presented by this record. That Hubbard should enter his appearance in a tax suit for the purpose of destroying the title he knew he had passed from him by a bona fide deed to Hinkle, provokes and would bear comment, but a cold statement of the facts is all that is necessary for the application of the law.

The instant Hubbard entered his appearance, that event was (in effect) the commencement of the tax suit against the apparent record owner at the time the petition was filed. All prior steps in that suit were but idle and meaningless ceremony, mere opera houffe in the eye of the law. The same.record that was open to the officers who prosecuted tax suits in Texas county and to the purchasers at tax sales and which showed Hubbard the apparent record owner at the time the petition was filed, showed Hinkle such owner on May 26th, when Hubbard was made a party. Hinlde then should have been made a party instead of Hubbard, under Revised Statutes 1899, section 9303, which provides that “all actions commenced under the provisions this chapter [the chapter on revenue] shall be prosecuted . . . against the owner *of the property,” etc.

Based on the foregoing views, we hold that conveyance “b” in defendant’s chain of title conveyed nothing to the purchaser, Dooley; Dooley conveyed nothing to Organ; Organ nothing to Dalby and Laucamp; and Dalby and Laucamp, nothing to defendant. Out of nothing, nothing can come. Defendant, therefore, had no title and the case may proceed on that theory.

II. It is a favorite rule applied in trying land titles that plaintiff must rely upon the strength of his own, and not upon the weakness of his adversary’s title. There is, however, a main exception to the foregoing rule, having its origin, as some authors contend, in convenience and justice, and, as others contend, in an admission, concession or acknowledgment (akin to estoppel) ; and that exception may be stated in this way: where there is a common source of title agreed to, or where the evidence shows a reliance upon a common source of title by both parties litigant, then the rule that plaintiff must recover, if at all, on the strength of his own title is departed from and he need not go back of the common source of title in making his case.

Sedgwick & "Wait formulate the general doctrine (Sedgwick & Wait on Trial of Title to Land (2 Ed.), sec. 803), as follows: “Both at law and in equity the plaintiff must recover upon the strength of his own title, but this does not mean that he must show a good title against all the world. It is enough that he shows a right to recover against the defendant. Thus, whenever plaintiff and defendant both derive title from the same source, the plaintiff usually need not go behind this source to prove his title. Some doubt exists as to how far this rule extends. It is obviously sufficient, in order to make a prima facie case, to prove derivation of title from the common source; but it may be essential to go behind the common source. Hence, it is held that the rule is not strictly an estoppel, though often spoken of as such, but a rule of justice and convenience adopted by the courts to relieve the plaintiff from the necessity of going behind the common source. Where the defendant can show a better title outstanding, and has acquired it, the rule ceases to apply. When the defendant is allowed to impeach the common source of title he must establish that he himself has acquired a superior title, and except to this extent he is not permitted to invoke the rule that the defendant can defeat the plaintiff by. showing a better title in a third person. . . .”

It has been steadily held in Missouri that where there is an agreement on the common source of title, or both parties assume a common source, or where the evidence proves a common source, then (subject to exceptions absent here) the plaintiff need not go back of such common source, in making his case. [Brown v. Brown, 45 Mo. 412; Fellows v. Wise, 49 Mo. 350; Butcher v. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 545; Smith v. Lindsey, 89 Mo. 76; Finch v. Ullman, 105 Mo. l. c. 263; Worley v. Hicks, 161 Mo. 1. c. 348.]

A necessary corollary of the rule under consideration is that where there is a common source of title agreed to, assumed, or shown to exist, and relied on, then irregularities in conveyances prior to the common source become weaknesses common to both litigants, and, hence, are immaterial. [Ebersole v. Rankin, 102 Mo. 1. c. 498-9.]

The class of eases in which this rule is usually applied are ejectment suits; but when it is considered that title is being tried out in an ejectment suit, and when it is considered that title is also on trial in the quasi-equitable proceeding to determine and quiet title, based on section 650, supra, it would seem, by parity of reasoning, that the rule should be applied in cases arising under section 650, and so it has been held. [Graton v. Land & Lumber Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 698.]

Proceeding one step further, it will be seen that this court is arriving at the proper construction of section 650, supra, as cases arise, by a process of guarded inclusion and exclusion. The notion has been entertained that a suit under that section to determine and quiet title is a proceeding to settle the title as against the whole world — in effect, a proceeding in rem. That notion is exploded. In Graton v. Land Co., supra, Gantt, J., says for this court: The statute does not require that the plaintiff shall establish an indefeasible title against the whole world. The statute does not authorize a proceeding which would make the decree operate as a judgment in rem. By its terms no right or title can be litigated save and except such as may be asserted by the plaintiff and the defendant respectively and a decree under the statute would not be binding against strangers to the title and party to the suit.” Gage v. Cantwell, 191 Mo. supra, proceeds upon the same theory.

Applying the principles of law thus established to the ease at bar, it sufficiently appears that plaintiff and defendant rely on a common source of title, that is, the title of Hubbard; and his title must be referred back to the sheriff’s deed at No. 5 in plaintiff’s chain of title, because Shuck got title there and he conveyed to Hub-hard. Hence, defendant’s assault upon No. 5, however well directed as an abstract proposition, must be held of no effect in the concrete case before us. It is but muddying the springs of justice to consider whether or not a justice of the peace of Living-ston county could take acknowledgments to deeds conveying land in Texas county, as urged at by defendant against No. 3 in plaintiff’s chain of title; and the same may he said of defendant’s contention that the assessor’s book was not duly certified for that year 1886, that the whole half section was sold en bloc, and that the order of publication and judgment did not properly describe the land conveyed to Shuck at No. 5 of plaintiff’s chain of title. [The case of Stewart v. Lead Belt Land Co., 200 Mo. 281 is easily distinguishable from the case at bar.]

If said conveyance at No. 5 in plaintiff’s chain is unassailable by defendant, as we have just held, then it follows that, as between plaintiff and defendant, the judgment below was for the wrong party. Under the Graton case and the Gage case, the issue here was between the litigants to the suit; and the court should have decreed the elder and better title to be in plaintiff, unless plaintiff’s later deeds were irregular and void. We find the contrary to be true.

Accordingly, the cause is reversed and remanded with directions to the lower court to enter judgment in favor of plaintiff.and against defendant — costs below to follow that judgment.

All concur. ■


author: VALLIANT, J.

text:
    HENRY C. HAARSTICK v. GABRIEL et al., Appellants.
    Division One,
    December 22, 1906.
    1. QUIETING TITLE: No Taxes Paid: Wild Land: Laches. Laches should not be applied to the owner of land who has paid no taxes for thirty consecutive years, if it has never been in the possession of any one, and all the title defendant has he derived from a void sale for taxes and a payment of taxes ' thereafter for more than twenty years.
    2. —-: -: -: Limitations: Thirty Years Payment of Taxes. The thirty-year Statute of Limitation (sec 4268, R. S. 1899) does not apply where the land has never been in the actual possession of any one, although the title owner has paid no taxes thereon for thirty consecutive years.
    3. -: Limitations. Suits to quiet title are barred by limitation in ten years, not five.
    4. -: Refunding Taxes: Act of 1903. Prior to the passage of the act of March 6, 1903, one who paid money to the sheriff or collector in a vain effort to acquire title, was a mere volunteer, and if the judgment and sale under which prior to that time he acquired a tax deed were void, the owner of the title in bringing his suit against such volunteer to quiet the title, is not required to refund the money paid at the sheriff’s sale or subsequently paid by way of taxes to the collector. That statute has no retrospective operation.
    5. -: -: -: Retrospective Law: Remedial. A statute which undertakes to impose a legal liability for a past transaction, which was not imposed by an existing law when the transaction occurred, is violative of the constitutional inhibition against the enactment of a law retrospective in its operation. The act of March 6, 1903 (Laws 1903, p. 254), was not intended to apply to taxes paid before it went into effect, and therefore it is not retrospective or unconstitutional; but to hold it to impose a new legal obligation upon the owner of land once sold for taxes to refund the taxes subsequently paid by the purchaser, when said owner brings suit to get rid of the tax title, would be to make it not simply remedial, but to give it a retrospective operation, and therefore, in that case, it would be unconstitutional.
    Appeal from Madison Circuit Court.- — Now. Robert A. Anthony, Judge.
    Affirmed.

      M. R. Smith, Moses Whybarh, D: M. Tesreau and B. B. Gaboon, Sr., for appellants.
    (1) Respondent’s action should have been dismissed because it was begun and prosecuted in violation of the act of March 6, 1903, Laws 1903, pp. 254-5, and of section 6, Revised Statutes 1899. That act is clearly retrospective in its operation, but required respondent as a condition precedent to bringing this action to set out and tender all past taxes paid by appellants and their immediate or remote executors. That act and, section 650, Revised Statutes 1899', on which this action is brought, must be construed together. They also required respondent, as the tax titles he was seeking to annul were of record, to set them out in his petition and clearly indicate wherein they were void. White v. Shell, 84 Mo. 569; Pitakin v. Eeibel, 104 Mo. 510; Pitkin v. Shacklet, 106 Mo. 571; Allen v. Buckley, 94 Mo, 158; Gregg v. Jasberry, 113 Mo. 34; Taft v. McCullogh, 135 Mo. 594; Burgham v. Burmingham, 103 Mo. 345; note 28, 36, book 1 Lewis’s Ed. of Blackstone- Commentaries; Myer’s Vested Eights (1891), pp.13-127; Town of Gos-hen v. Town of Stonington, 4 Conn. 209; Foster v. Bank, 16 Mass. 354; Calder v. Bull, 3 Dallas IJ. S. Sup. Ct. 386; Charles Eiver Bridge v. Warren Bridge, 11 Peters 420; Phillips v. Ere, 6 L. E. Q. B. (1870), 25; Simpson v. Stoddard Co., 173 Mo. 421. (2) The record in the tax suit against Chas. Hockaday et al. is sufficient in itself to defeat respondent’s present action. (3) Eespondent’s action is barred. (4) The act of March 6, 1903, should be applied to this case pending and on this appeal. (5) The laches of respondent as shown in the record apply to this case, and preclude his recovery in this action.

      John C. Brown and J. H. Chitwood for respondent.
    (1) Eespondent’s petition states a cause of action. Petitions to quiet title in essentially the same form have been approved by this court. Huff v. Laclede Land & Imp. Co., 157 Mo. 65; Ball v. Woolfolk, 175 Mo. 278; Spore v. Land Co., 186 Mo. 656. (2) Appellants are not entitled to a lien for taxes paid or extinguished by them or those through whom they claim. Burkham v. Manewal, 94 S. W. 520'; Carter v. Phillips, 49 Mo. App. 319; Eowe v. Current Eiver L. & C. Co., 99 Mo, App. 158; Petering v. Current Eiver L. & C. Co., Ill Mo. App. 373; Constitution, art. 2, sec. 15; Leete v. Bank, 115 Mo. 184; Minter v. Bradstreet Go., 174 Mo. 144; Gladney v. Sydnor, 172 Mo, 318; Phillips v. Butler, 187 Mo. 699; Croskey v. Bush, 116 Mich. 288; Cooley on Taxation (2 Ed.), 467, 468, 531; State v. Casteel, 110 Ind.. 174; Harper v. Rowe, 53 Cal. 233; McCormack v. Edwards, 69 Tex. 106; Burke v. Brown, 148 Mo. 309; Blackwell on Tax Titles, secs. 410; 411. (3) No Statute of Limitations bars respondent’s claim because the land in controversy was unoccupied and appellants’ title was void. Peak v. Laug’hlin, 49 Mo. 162; Mason v. Black, 87 Mo. 329; Graves v. Ewart, 99 Mo. 13; Bales v. Perry, 51 Mo. 453; Throckmorton v. Pence, 121 Mo. 50; Mylar v. Hughes, 60 Mo. 105; Mason v. Crowder, 85 Mo. 526; Dameron v. Jamison, 143 Mo. 483; Cameron v. Lewis, 59 Miss. 134; Dunbar v. Green, 25 S. C. (U. S.) 621. (4) Respondent is not barred from prosecuting this suit through any laches or estoppel. Such pleas can be interposed in favor of voidable titles and by persons who take possession and make valuable improvements in good faith under void titles, but will not aid the void title of appellants who never had possession. The judgment is for the right party and should be affirmed. Bales v. Perry, 51 Mo. 449; Throckmorton v. Pence, 121 Mo. 50; Dameron v. Jamison, 143 Mo. 483; Shields v. McClure, 75 Mo. App. 631; Harrison v. McReynolds, 183 Mo. 548.
   VALLIANT, J.

Suit under section 650; Revised Statutes 1899, to quiet title to eighty acres of land in Madison county. The petition is in the usual form; states that plaintiff is the owner in fee of the land described and that defendants claim some title to it, the nature of which plaintiff-does not know. The prayer is that the court ascertain and adjudge the title as between plaintiff and defendants.

The answer denies that plaintiff owns any interest in the land and asserts full title in defendants. It then goes on to state that plaintiff acquired title to the land in 1879, that he then and has ever since resided in St. Louis and although amply able to pay taxes on the land neglected and refused so to do and in, consequence it was sold for taxes in 1882, and the sheriff’s deed was then duly recorded and defendants hold title derived from that sale; that from that day to this plaintiff has never paid any taxes, hut the defendants and those under whom they claim have paid all taxes as they accrued, to the amount, with what was paid at the sheriff’s sale, to about $500, that plaintiff by his conduct has abandoned the land and has been guilty of such laches as ought to preclude his recovery in this suit. Then for a third defense the answer refers to the Act of March 6, 1903, which requires a party when suing to set aside a tax deed to tender in his petition or offer to pay the amount of taxes and penalties his adversary has paid in acquiring the tax title and the taxes he has since paid, and prays that if the court should adjudge the title to be in plaintiff that it require the plaintiff to reimburse defendants for their expenditures in payment of taxes, etc., and charge the amount of same as a lien on the land.

At the trial plaintiff introduced a patent and deeds bringing the title from the Government down to himself showing a perfect paper title, vesting in him in 1869.

Defendant introduced evidence as follows:

The record of the circuit court of Madison county in a suit wherein the county collector was plaintiff and H. O. Haarstick was defendant and in which it was adjudged that the State had a lien on this land for taxes delinquent for several years, amounting to $46.33, and that the land be sold to satisfy the judgment. It was alleged in the petition that the owner,.H. C. Haarstick, was a non-resident of the State; thereupon an order of publication was made against H. C. Haarstick and it was so published. The records of the county showed at that time that the title stood in the name of Henry C. Haarstick. The judgment in the tax suit was by default. The sheriff sold the land under that judgment and executed a deed to the purchaser which was recorded December 21, 1882. The defendants’ title is based on that deed.

Subsequently there was another suit by the collector for the taxes of 1896 and 1897 in which suit one L. M. Lord and one Charles Hoekaday and “all unknown claimants and owners” were made parties defendant, and publication against the defendants so named; a judgment by default was rendered in that suit, execution and sale followed and sheriff’s deed executed and duly recorded. Defendants own whatever title passed under that sale. ' .

There was testimony of defendants tending to show that they had paid all the taxes on the land from 1870 to date including the taxes and penalties covered by those two judgments and sheriffs’ sales, which aggm gated about $500. Respondent says that the abstract is imperfect on that point, because it fails to produce the evidence which defendants offered to prove payment of the taxes for some of the years and which if produced would show that the taxes so claimed to have been paid were not assessed according to law and hence not lawful taxes.

The land is unimproved and has not been in the actual occupation of any one.

The judgment in the circuit court was for the plaintiff adjudging the title to be entirely in him and that defendants have no interest in the land. From that judgment defendants have prosecuted this appeal.

Defendants do not now contend that they have any title by force of their sheriff’s deeds, but they do contend that the plaintiff has been guilty of such laches as preclude him from recovery at this late day, and that he is barred by the Statute of Limitations, or if he is entitled to the land he should at least be required to reimburse defendants for the taxes they have paid.

I. The doctrine of laches as a bar to an asserted right is a creation of equity jurisprudence and though it has some analogy, in its application, to the Statute of Limitations, yet it differs from that and rests on its own equitable grounds; like all purely equitable doctrines it is applied only when the equity of the case demands it. We do not think the circumstances of this case demand its application.

Defendants ’ testimony tends to show that the plaintiff, who although he has held the legal title since 1869, yet has never been in possession .of the land and has never paid any taxes on it, during all that period, more than thirty consecutive years. Those facts would have been sufficient to have barred the plaintiff, under section 4268, Revised Statutes 1899, called the thirty year limitation, if the land had been in the lawful possession of defendants or one under whom they claim at any time after ten years after the title had emanated from the Government and for one year before the plaintiff brought this suit, but the fact is the land has never been in the actual possession of any one, therefore that statute does not apply.

In the brief for defendants it is said that in Burkham v. Manewal, 195 Mo. 500, it is intimated that five years is the limitation in which to bring suit under sec- ■ tion 650', Revised Statutes 1899, the statute under which this suit was brought. But this is a misunderstanding of what was said in-that case. The words quoted by the counsel in their briefs from that case are: “The plaintiff could not have brought his suit before the act of 1897 gave him the right to do so, and since he has brought it within five years of that time he is not barred by the Statute of Limitations, and is not guilty of such laches as would bar him in equity, even if this were a suit in equity.” The defendant in that case was not contending that the plaintiff was barred by any statute of limitation but was urging that he had been guilty of laches and in the discussion of the doctrine of laches the court was led to refer to the analogous subject of the Statute of Limitations. The mention of five years in that connection was only the mention of the fact in that case, and it would have been to the same effect if it had been said that the suit was brought within one year after the passage of the act and therefore not barred, if such had been the fact in that case.

The act of 1897, now section 650', Revised Statutes 1899, does not prescribe any period within which suit must be brought, but as the suit is one to determine and quiet title to land it falls under the head of real actions, the limitations for which are prescribed in article 1 of chapter 48, Revised Statutes 1899, and not under article 2 of that chapter, which relates to personal actions.

This suit was begun June 9, 1903, less than seven years after the act of 1897 went into effect; it is not therefore barred by the Statute of Limitations.

II. Defendants insist that under the act of March 6,1903, Laws 1903, p. 254, plaintiff cannot maintain this suit, which they argue, is in effect a suit to set aside their tax deeds without tendering to them the taxes paid by them and by those under whom they claim.

The argument is that the act of March 6, 1903, which requires a plaintiff when he brings suit to get rid of a tax title held by his adversary under a deed which he asserts is invalid, to offer in his petition to pay or refund all the taxes and penalties which his adversary or those under whom he claims has or have paid and that that being a remedial statute it is both retrospective and prospective and calls for the reimbursing of defendants for taxes paid by them before the passage of that act.

A statute that would undertake to impose a legal liability for a past transaction, which was not imposed by the law as it was when the transaction occurred, would be in violation of section 15 of article 2 of our State Constitution which forbids the enactment of a statute retrospective in its operation. But a statute which is merely remedial, affording a remedy for the redress of an infringement on an already existing right, or the enforcement of an already existing obligation, may be retrospective in its action, without violating the constitutional provision above mentioned. [Potter’s Dwarris, p. 470-472; Lewis’s Sutherland, Stat. Construction (2 Ed.), secs. 335 and following.]

Before the act of March 6, 1903, there was no legal liability on the owner of land to refund to a man the money he may have paid in a vain effort to obtain a tax title to the property. In such case the man who so paid out his money was regarded in law as a mere volunteer who acquired no right by his outlay and the owner was under no obligation to him. And so the law was when these defendants, or those under whom they claim, laid out their money for the sheriff’s deeds they' hold and for the taxes they have paid on this land.

But by the act of March 6, 1903, a new legal obligation was imposed on an owner who should suffer his land to be sold for taxes, an obligation that did not exist before; it was the obligation to refund or offer to refund to the holder of the tax deed the taxes that had been paid and interest thereon.

But the obligation created by that act cannot be carried back to cover the sheriff’s sale under the judgment for taxes in 1882, under which the defendants claim, to cover the taxes paid by them since 1882 before the passage of the act, because to do so would be to impose a legal liability on the plaintiff for transactions for which when they occurred there was no such liability; it would be to give to the act a retrospective operation, which our Constitution forbids. The act of March 6, 1903, does not apply to tax deeds or sales of land for taxes, or to taxes, paid prior to the date the act took effect, and since all the money paid by defendants or those under whom they claim was paid prior to that date, they are not entitled to recover it in this suit.

This is the construction which our St. Louis Court of Appeals has given the act of March 6, 1903 (Petring v. Current River L. & C. Co., 111 Mo. App. 373); and which this court, also, in Manwaring v. Missouri L. & M. Co., 200 Mo. 718, has given it. It is also the view taken by the trial judge in this case and it is correct. The judgment is affirmed.

All concur.