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    JOSEPH MURPHY and SARAH MURPHY v. WILLIAM N. BARRON, Appellant.
    Division One,
    March 5, 1921.
    1. SECOND APPEAL: Decision on Former Appeal. On a second appeal in the same case the decision on the former appeal'is not res judicata in the full sense that the court cannot depart from it; but the general rule is that matters decided on one appeal will he considered settled on a second appeal in the same case, unless exceptional circumstances call for a re-examination of them.
    2. -: -: Reversal and Remandment: Directions. Where, on appeal, the Supreme Court reverses the judgment and remands the cause with specific directions to the trial court as to the judgment to he entered or the course to be pursued, such directions are in the nature of a special power of attorney to the trial court, which must be strictly obeyed; but where the judgment is reversed and the cause remanded “for further proceedings in accordance with the opinion” it is no more than a simple reversal and remanding, and does not bring the case within the rule as to reversal with specific directions.
    3. -:-: -:-: New Facts. Where on a re-trial of a case after a simple reversing and remanding, a new state of facts appears, such new state of facts constitutes exceptional circumstances within the rule stated above, and the trial court is bound by the prior decision only so far as the principles of law then declared are applicable to the new state of facts.
    4. -: -: Substantially Samé Facts and Pleadings: Re-examination. Where on a second appeal the facts and pleadings are substantially the same as on the former appeal, it is the duty of the Supreme Court to re-examine the questions decided on such former appeal when cogent and convincing reasons appear, such (1) as lack of harmony with other decisions and where no injustice or hardship will flow from a change, or (2) where by inadvertence principles of law have been incorrectly declared the first time, or (3) mistake of facts has been made, or (4) injustice to the rights of parties would he done by adhering to the first opinion.
    B. -: -: -: -: Kailroad Condemnation. In a contest between two claimants of a fund awarded in a condemnation case as damages for a railroad right of way through land, the fact that on the first appeal the record showed that the fund was paid to one claimant by the railroad company directly and on the second appeal it was paid to the circuit clerk after the decision of the court on the rival claims of the claimants and by the clerk paid to the successful claimant, is not such a difference of fact as of itself to call for a different ruling from that made on the first appeal.
    6. -: -: Railroad Condemnation: Time for Raying Damages. Under Section 2362, Revised Statutes 1909, the condemning company has ten days after the final determination of the amount of damages, and not merely ten days after the award of the commissioners, within which to determine whether it will proceed with or abandon the condemnation, as erroneously held in the opinion on the former appeal.
    7. -: -: -: Interpleas For Award: Proceedings in Rem. The proceedings on the interpleas of rival claimants of an award of damages in a railroad condemnation case are not in rem.

    S. -: -: -: -: Jurisdiction. Where the award of the commissioners in a railroad condemnation case has been filed in court, and the time has gone by within which the railroad company could abandon the proceedings as provided by Section 2362, Revised Statutes 1909, and such award shows that there are rival claimants of the damages awarded and these claimants voluntarily come in and file their several interpleas, the court has jurisdiction to determine such claims, even though the damages have not been paid into court. [Overruling Murphy v. Barron, 275 Mo. 282.]
    9. -: -: -: Reversal of Former Erroneous Ruling. Inasmuch as the former opinion in this case is in conflict with other decisions and inadvertently declares an incorrect rule in a matter of public concern, to-wit, a condemnation proceeding, and gives a wrong construction to an important feature of the condemnation statute and is out of line with respect to the character of the interpleader proceedings, and the correction of such erroneous holdings will work no injustice to any one, this case falls within the exceptions to the general rule requiring adherence to a ruling on a former appeal.
    10. BES JUDICATA: Estoppel hy Finding or Verdict: In Condemnation Proceeding. Where the award of damages made hy commissioners in a railroad condemnation case shows that there are rival claimants of the fund awarded, and such claimants file their respective claims in court and in such claims put in issue the title to the land, a part of which is condemned, and the record shows that the court tried the single issue of title, and its finding was upon that sole issue and the fund awarded accordingly, such finding is a conclusive estoppel upon the same parties on the issue of title to the land, of which that condemned was a part, in a subsequent suit between them to quiet title to the land and in ejectment to recover possession of it.
    Appeal from Butler Circuit Court. — Hon. Almon Ing, Judge.
    Reversed AND remaNded (with directions).

      Arnot L. Sheppard for appellant.
    (1) The court erred in not deducting from the amount of damages awarded respondents, the amount of taxes paid hy appellant. Secs. 11508,11509, R. S. 1909; Haarstiek v. Gabriel, 200 Mo. 237. (2) The court erred in not rendering judgment for appellant, (a) The judgment of the Butler County Circuit Court in the condemnation suit was res judicata of the title to the land in controversy herein. In re Breck, 252 Mo. 302; Transportation Co. v. Traube, 59 Mo. 362; Spratt v. Early, 199 Mo. 501; Napa Valley Elec. Co. v. Board, 251 II. S. 366. (b) In a condemnation suit, the court acquires jurisdiction of both the subject-matter and the person, by the filing of the petition and service of notice thereof upon the landowners. Sec. 2361, R. S. 1909; Quayle v. Ry. Co., 63 Mo. 465; Ry. Co. v. Kemper, 256 Mo. 279; Ry. Co. v. Swan, 120 Mo. 30. (c) Respondent cannot question the jurisdiction of the circuit court in the condemnation suit, for three reasons: first, because the award was paid into court; second, because respondents voluntarily invited the court to pass upon the merits of the controversy, by filing their interplea; third, because respondents cannot collaterally attack the judgment on the interpleas. Butler County Railroad v. Barron, 173 Mo. App. 365; McClanahan v. West, 100 Mo. 322; Ben-sieck v. Cook, 110 Mo. 182; Royle Mining Co. v. Casualty Co., 161 Mo. App. 200-201; Union Depot Co. v. Frederick, 117 Mo. 138; Railway v. Donnovan, 149 Mo. 93; State ex rel. v. Bank, 211 S. W. 817; Fitzgerald v. Road District, 195 S. W. 695. (d) The court does not lose jurisdiction in a condemnation suit, merely because the award of the commissioners is not paid within ten days. In such case, the condemnation plaintiff merely loses the right to abandon the proceeding. After ten days the defendant landowner may enforce the award by execution. Sec. 2362, R. S. 1909; State ex rel. v. Lubke, 15 Mo. App. 152; State ex rel. v. Withrow, 24 S. W. 638. (3) Identity of the cause of action is necessary to support a defense of res j%idicata. “The cause of action is the basic facts which warrant the court in granting relief, or as we generally say, ‘the facts constituting the cause of action.’ ” Hill v. Dillon, 183 S. W. 1088; Ing-werson v. Railroad, 150 Mo. App. 381; Litton v. Railroad, 111 Mo. App. 149; Thornton v. Smelting Co., 178 Mo. App. 38; 1 C. J. 940, and notes; Railroad Co. v. Dixon, 179 U. S. 139, 45 L. Ed. 125; Bradford v. Southern Ry. Co., 195 U. S. 248, 49 L. Ed. 180. (4). A former' opinion in the same case is not always conclusive on second appeal, (a) This court has on many occasions reviewed our own decisions on second appeal, where no hardship would result to innocent parties, and reached different conclusions as to the law itself as well as to the facts of a case. Williams v. Butterfield, 214 Mo. 429; Wilson v. Beckwith, 140 Mo. 359; Bird v. Sellers, 122 Mo. 32; Rutledge v. Railroad, 123 Mo. 131. (b) The Supreme Court will not permit an injustice to be worked by reason of a former opinion. Bird v. Sellers, 122 Mo. 32; Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beck-with., 140 Mo. 370; Vaughn v. Railroad, 78 Mo. App. 643; Bealey v. Smith, 158 Mo. 522; Bank v. Douglas, 146 Mo. 53; Chambers’ Admr. v. Smith, 30 Mo. 159; Sparks v. Brown, 46 Mo. App. 534. (c) The appellate courts are always open even upon second appeal for the correction of error and the administration of justice. Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beckwith, 140 Mo. 370; Vaughn v. Railroad, 78 Mo. App. 643; Bird v. Sellers, 122 Mo. 32; Bealey v. Smith, 158 Mo. 523; Baker v. Railroad, 147 Mo. 152; Hamilton v. Marks, 63 Mo. 167; IToagland v. Rys. Co., 209 S. W. 569. (d) The facts being essentially different from those on the former appeal, the Supreme Court will not be bound by its former opinion. Williams v. Butterfield, 214 Mo. 428; Armor v. Prey, 253 Mo. 447; Crispen v. Hannovan, 86 Mo. 168; Fuchs y. St. Louis, 167 Mo. 653; May v. Crawford, 150 Mo. 525; Vaughn v. Railroad, 78 Mo. App. 644; Crumley v. Webb, 48 Mo. 562; Parker-Washington Co. v. Transit Co., 165 Mo. App. 306; Armstrong v. Railroad Co., 203 S. W. 249; Benton v. St. Louis, 248 Mo. 98. (e) It is a matter of common knowledge that personal injury cases are reversed and remanded, retried upon different proof, and judgment affirmed. They are too numerous to cite more than a limited number. Case v. Bridge & Transit Co., 211 S. W. 99; Pinnigan v. Railroad, 244 Mo. 662; Huskey v. Boiler Co., 187 Mo. App. 438, 192 Mo. App. 371, 188 S. W. 101. (5) The Supreme Court can quash a judgment of one of the Courts of Appeals, only when it acquires jurisdiction of the case by certification or by certiorari; and then not merely because it considers the opinion of. the Court of Appeals erroneous, but only when the opinion is contrary to the last controlling decision of the Supreme Court. Therefore, even though this court may consider the judgment in the condemnation case incorrect, said adjudication is controlling upon this court, in the absence of a writ of certiorari, or certification by one of the judges of the Springfield Court of Appeals. Harrison v. Jackson County, 187 S. W. 1183; State v. Reynolds, 214 S. W. 121; State ex rel. v. Mining Co., 262 Mo. 501. (6) Admitting for the sake of argument only, that the judgment in the condemnation suit is not technically res judicata, respondents are now estopped to claim title to the land in .controversy, (a) A former judgment is conclusive in a second suit, as to all questions which were actually in issue and adjudicated in the former suit, even though the two cases were not upon the same cause of action. Case v. Sipes, 217 S. W. 309; State ex rél. v. Mining Co., -262 Mo. 501; Garland v. Smith, 164 Mo. 22; Gymnastic Society v. Hagerman, 232 Mo. 693; Dickey v. Heim, 48 Mo. App. 118; Barkhoefer v. Barkkoefer, 93 Mo. App. 381; Paving Co. v. Field, 132 Mo. App. 628; Roberts v. Neal, 137 Mo. App. 115; Hartwig v. Ins.. Co., 167 Mo. App. 130; Napa Valley Elec. Co. v. Board, 251 U. S. 366; New Orleans v. Bank, 1.67 U. S. 371, 42 L. Ed. 211; Cromwell v. Sac County, 94 IT. S. 353, 24 L. Ed. 198; Bigelow, Estoppel (3 Ed.), pp. 51, 29, 57, 103; Aurora v. West, 74 U. S. (7 Wall.) 102; Van Pelt v. McGraw, 4 N. T. 113; Bryan v. Atchi-son, 2 La. Ann. 462; Scuddy v. Schaffer, 14 La. Ann. 576; Plicque v. Perret, 19 La. 318;’ Gilman v. Horseley, 5 Mart. (N. S.) 664; Dufour v. Camfranc, 11 Mart. 607; Patterson v. Bonner, 14 La. 233; Martin v. Martin, 5 Mart. (N. S.) 170; Freeman v. Bamum, 131 Cal. 386; Keohler v. Mfg. Co., 146 Cal. 335; Marídey v. People, 171 Ill. 260; Reynolds v. Randel, 175 Ill. 615; Rowell v. Smith, 123 Wis. 51.0; Freeman on Judgments, sec.' 253; 24 Am. & Eng. Ency. Law (2 Ed.), p. 780; Moran v. Vicroy, 77 S. W. (Ky.) 668. (b) Respondents are concluded by the former litigation, not only as to all questions within the pleadings and decided thereunder, but as to every other matter fairly within the issues in said cause. Richardson v. Dell, 191 S. W. 63; Harrison v. Jackson County, 187 S. W. 1184; Barnhart v. Little, 185 S. W. 177; McClure v. Bank, 263 Mo. 136; Hines v. Hines, 243 Mo. 495; Tie & Timber Co. y. Pulliam, 237 Mo. 18; Emert v. Aldredge, 231 Mo. 128; Spratt v. Early, 199 Mo. 500; Donnell v. Wright, 147 Mo. 647; Mo. Pac. Rv. Co. y. Levy, 17 Mo. App. 507; Bates v. Bodie, 245 Ú. S. 526, 62 L. Ed. 449.

      Ilenson & Woody for respondents.
    (1) The decision of this court on the former appeal to the effect that the judgment rendered against respondent Joseph Murphy in the tax suit is void, is the law of this case upon this appeal and is binding on this court. As to this court, it is stare decisis. Murphy y. Barron, 205 S. W. 49; Drainage District v. Bates County, 216 S. W. 949; Knisely v. Leathe, 178 S. W. 457; State ex rel. v. Spencer, 166 Mo. 272; Carey v. West, 165 Mo. 452; Thompson v. Pinnell, 199 S. W. 1014. (2) The title to the real estate which is the subject-matter of this suit was not involved in the issue made by interpleas filed by respondent and appellant in the s,uit of the Butler County Railroad Company to obtain a right-of-way over the same. The controversy was over the fund only. The judgment rendered there did not affect this title. Hilton y. St. Louis, 129 Mo. 389; Davis v. Watson, 158 Mo. 192; Cox v. Baker, 150 Mo. 424; Price v. Blankenship, 144 Mo. 203; Railroad Co. v. Barron, 173 Mo. App. 368; Schroer v. Brooks, 200 S. W. 1068; Fisher v. Johnson, 139 Mo. 437; Rothroclc v. Mining Co., 146 Mo. 57; Hernán v. Wade, 141 Mo. 601; Kennedy v. Duncan, 224 Mo. 664-5; Cox v. Barker, 150-Mo. 424; McKinney v. Lumber Co., 192 Mo. 34-5; Bran-nock v. Magoon, 216 Mo. 727; Stough v. Light Co., 217 S. W. 519; Brick Co. v. Lane, 205 S. W. 801. (3) No act of the parties to the interplea, not even their consent, could have made the title an issue so as to confer jurisdiction on this court. Stough v. Light Co., 217 S. W. 519; Marshall v. Reddick, 177 S. W. 381. (4) All of the issues presented on this trial were presented on the former trial, and all the evidence introduced was or could have been introduced in that trial. The decision of this court on appeal from the judgment there rendered, is a final determination of those issues, and they may' not again he litigated. Donnell v. Wright, 144 Mo. 2:03; Emmert v. Aldridge, 231 Mo. 124; McClure v. Bank, 263 Mo. 134; St. Louis v. United Rys., 263 Mo. 423; Richardson v. Dell, 191 S. W. 64; Ogden v. Auer, 184 S. W. 73; Williams v. City of Hayti, 184 S. W. 473; Julian v. Monument Co., 187 S. W. 584.
   JAMES T. BLAIR, P. J.

This is a second appeal (Murphy v. Barron, 275 Mo. 282) in a suit to quiet title in ejectment, which respondents instituted in 1914. As appears from the record and the former opinion, Joseph Murphy owned the land prior to 1901. In that year a suit was commenced against him for hack tases on the tract here in question and service obtained. The case was not tried until June, 1903. Murphy was then in the penitentiary. In October, 1903, the land was sold under the tax judgment to Green who, three days later, conveyed to" the present appellant. After his release in 1905 Murphy took possession of the tract and retained it until 1914, when he was ousted under a judgment in an action this appellant had brought against the Baurtons in 1904, as more fully appears from the former opinion. Murphy had conveyed the tract to Baurton in 1902, and Baurton reconveyed to Murphy and his wife, these respondents, in 1904. August 11, 1911, the Butler County Railway began proceedings to condemn a right of way across the tract and made the present respondents and appellant and one Horton defendants thereto, alleging that all claimed the land and that it did not know which had title. September 18, 1911, commissioners were appointed- who qualified and, on September 29, 1911, filed their report in which they “assessed as damages to the owners” (of the tract in suit) “to-wit, William F. Barron, M. C. Horton or Joseph Murphy, the true owner hereof to be declared and decreed by the court upon the trial of this cause, for said strip taken, the sum of $100.” On March 5, 1912, Murphy filed in that case a motion to require the Butler County Railroad to pay into the court the amount of the award “to the end that said defendants may interplead for same.” This motion was overruled on March 8, 1912, and in. the order the court granted Murphy “leave to answer or plead on or before. the first day of the next regular term of this court, to which this cause is continued.” Thereafter Barron, the present appellant, and Horton filed a pleading in the nature of an interplea admitting they claimed title to the tract, alleging they were the owners thereof, denying that the Murphys had any interest therein, and praying a decree and order that the damages awarded by the commissioners be directed to be paid to them, Barron and Horton. Joseph and Sarah Murphy, the present respondents, also filed in those proceedings their plea in the nature of an interplea in which they alleged they were the owners of the land affected and entitled to the $100 awarded by the commissioners as damages for the taking of the right of way across it. They denied Barron and Horton had any interest in the land and prayed judgment “in the sum of $100 and costs.” The court heard the evidence on these conflicting claims, found that Barron was the owner of the land, that he was entitled to the $100 awarded as damages for the taking of the right of way, adjudged that Joseph and Sarah Murphy had no title to or interest in or to the land or to the $100 damages awarded by. the commissioners, and “that upon the payment into court by the plaintiff of the sum aforesaid that the said W. N. Barron be entitled to the said sum of $100,” and adjudged the costs of the proceeding against the Murphys. From this judgment Joseph and Sarah Murphy appealed to the Springfield Court of Appeals, where the judgment was affirmed. [Railroad v. Barron et al., 173 Mo. App. 365.] In tliat proceeding and on the issue concerning the right to the $100 fund the evidence was confined to the question of title to the land. In this case appellant called Wm. McGuire, Circuit Clerk of Butler County, who testified he was circuit clerk at the time of the trial of the issues between respondents and appellant and Horton on May 2, 1912. He produced a receipt which reads as follows:

“Poplar Bluff, Missouri, May 23, 1912.
“Received of William McGuire, Circuit Clerk of Butler County, Missouri, the sum of one hundred ($100) dollars, payment in full for a strip of ground taken for railroad right of way by thé Butler County Railroad Company, a corporation, which strip of ground is more particularly described in the report of the commissioners filed in this court on the 29th day of September, 1911; and the above amount being the amount awarded hv said commissioners.
“William N. Barrow,
By Eabl Y. Walker.”

McGuire testified he had no record of the receipt of this sum from the Butler County Railroad Company; that he paid it to Walker, Barron’s agent, on the date named in the receipt and took the receipt for it; that funds of the kind did not go upon his abstract of fees collected but were listed by him and kept in a separate trust fund account; that this list was revised and rewritten as payments were made from it and old lists then destroyed; that he did not pay it out if his own money but that the sum came to him from the Butler County Railroad; that he had no recollection when the money v/as paid to him. Appellant testified that the Butler County Railroad did not pay the $100 award to the circuit clerk until after May 2, 1912, but that it was paid in before May 23, 1912, when he received the money. Other facts appear from the opinion on the former appeal. On the second trial the Murphys had judgment, and this appeal followed.

I. On the former appeal in this case it was held, among other things, that the Bntler Circuit Court had no jurisdiction to try the issues made by the interpleas of respondents and appellant and Horton in their contest for the damages awarded the own-erg 0f the land involved in that and in ... -in, ,. .. this case, and that, consequently, the trial and judgment in that proceeding could constitute no obstacle to the assertion by respondents against appellant of title in this case. Appellant contends the decision on the former appeal was wrong on the record then before this court, is wrong for the same and additional reasons on the present record, and that the question should be re-examined. Respondents insist the holding on the former appeal was such a determination of the question that it is not now open to examination.

(1) The decision on the former appeal is not res acljudicata in the full sense. [Mangold v. Bacon, 237 Mo. l. c. 517.] It is not a judgment from which the court cannot legally depart on this second appeal in the same case. Under the decisions in this State it was not an absolute and final determination of all matters decided of such inexorable force that the court must adhere to it on this appeal at all events and whether it he right or wrong. The general rule is that matters decided on one appeal will he considered settled on a second appeal in the same case, unless exceptional circumstances call for a re-examination of them. A discussion of - the nature of the exceptional circumstances which warrant a re-examination of questions decided on a former appeal is found in the case above cited. It follows that the decisions cited by respondents (Donnell v, Wright, 147 Mo. l. c. 647, and the like) in which this court considered the effect in a second action of a previous and final adjudication of same matter are not in point.

(2) Respondents also rely upon the rule announced in McLure v. Bank, 263 Mo. l. c. 136, and cases cited. Those cases deal with the effect of a reversal of a judgment and remandment of a cause with specific directions to the trial court as to the judgment to he entered or the course to he pursued. In such cases it becomes the duty of the trial court to do the things directed. The “mandate is in the nature of a special power of attorney” (Keaton v. Jorndt, 259 Mo. l. c. 190) and the trial court has no power “to enter any other judgment, or to consider or determine other matters not included in the duty of entering* the judgment as directed.” [Stump v. Hornback, 109 Mo. l. c. 277; Chouteau v. Allen, 74 Mo. l. c. 59.] In case directions are given it is its duty “to do those things and those things only which it is directed to do by the mandate contained in the judgment” (Keaton v. Jorndt, supra) which in that case included a direction to enter judgment with respect to designated .parties and to try a specified issue. If no directions are given on a first appeal and there is “a simple reversal and remanding” the rule does not apply. [Chouteau v. Allen, supra.] In the instant case the judgment was, on the first appeal, reversed and the cause was “remanded to the Butler Circuit Court for further proceedings in accordance with this opinion.” [Murphy v. Barron, 275 Mo. l. c. 297.] This is no more than a “simple reversal and remanding.” The words “for further proceedings in accordance with this opinion” added nothing which would not have been necessarily implied had they been omitted. Every case which is remanded is remanded “for further proceedings” whether those words are used or not, and such further proceedings are expected to be “in accordance with” the opinion rendered. That they may be is perhaps one of the purposes of the requirement that opinions must be in writing. The words used do not import a direction of specified things, which' is necessary to bring the case within the rule concerning reversals and reinandments “with directions.” In Quisenberry v. Chenault, 30 Ky. L. Rep. 229, 97 S. W. 803, tlie Court of Appeals of Kentucky reversed a judgment on a verdict returned on an issue submitted out of chancery and remanded the cause “for proceedings consistent with the opinion.” The trial court, on motion, entered judgment for the party successful on the appeal. It was held the court should have resubmitted the issue to a jury, conforming its rulings on evidence and instructions to “the opinion of this court.” It was further held that unless the evidence was in substance the same a peremptory instruction should have been given. On the next previous appeal (Chenault v. Quisenberry, 26 Ky. L. Rep. 462, 81 S. W. 690) the court had held, in effect, that the evidence for plaintiff on the trial there reviewed was not sufficient to support a verdict for him. It was this holding it had in mind when it said that a peremptory instruction for defendants should be given if the evidence was substantially the same. The decision is some authority for the proposition that a remandment “for proceedings consistent with this opinion” does not amount to a remandment with directions within the rule respondents invoke. It is the general rule that unless from an bpinion it is apparent finality Avas intended it will not be implied from it. . [Ryan v. Tomlinson, 39 Cal. l. c. 646; Myers v. McDonald, 68 Cal. l. c. 164, 165.] It seems hardly open to question that every remandment is made “for further proceedings” and that such proceedings are intended to be “in accordance with the opinion;” that the use of the words mentioned adds nothing, as stated. To • apply, because of them, the rule invoked, would amount to transforming every re\rersal and remandment into a reversal and re-mandment “with directions” and would leave this court at a loss to explain the pains to which it has gone to distinguish a simple reversal and remandment from one with directions. The terms are constantly used and do not have the meaning which respondents ascribe to them; and the point is so ruled.

(3) When a new state of facts appears on a retrial following an appeal, the trial conrt is “bound only by our decision on the former appeal to the extent that if the same facts appeared, it would follow our decision.” [Williams v. Butterfield, 214 Mo. l. c. 429; Fuchs v. St. Louis, 167 Mo. l. c. 652, 653.] “If the facts on the trial anew present a different case from that presented on the first trial to the appellate court, the trial court will be bound by the prior decision only so far as the principles of law then declared are applicable to the new state of facts.” [May v. Crawford, 150 Mo. l. c. 525; Benton v. St. Louis, 248 Mo. l. c. 102, 103; Finnegan v. Railroad, 244 Mo. l. c. 662, 663.] None of which is to be understood to exclude the rule referred to under (1) supra.

(4) Is this case within the exceptions to the general rule that a decision on appeal becomes the law of the case on a re-trial following the return of the case to the trial court? In Mangold v. Bacon, supra, the rule respecting a re-examination, on substantially the same facts and pleadings, of questions decided on a former appeal is stated as follows: “Whether from grace or right, when cogent and convincing reasons appear, such (1) as lack of harmony with other decisions and where no injustice or hardship would flow from a change, or, (2) where by inadvertence principles of law have been incorrectly declared the first time, or (3) mistake of fact has been made, or (4) injustice to the rights of parties would be done by adhering to the first opinion, then the exceptions to the rule have play and it is our duty to re-examine and correct our own errors on the second appeal in the same case.”

The question we are asked to examine is that which concerns the jurisdiction of the Butler Circuit Court to try the issues on the pleas in the nature of inter-pleas in the condemnation proceedings. In the former opinion it was stated that the $100 awarded by the commissioners in the condemnation proceedings to cover the value of the appropriated part of the tract in suit was never paid into court, but that the fund was paid directly to Barron, the appellant here. It was said that the judgment for the payment of the money was rendered in the exercise of an extraordinary power, condemnation of private property for public use, and that such power could be exerted only “where the plain letter of the law permits it and under a careful observance of the formalities prescribed for the owner’s protection.” Attention was called to the fact that the condemnor could not take possession until the damages awarded were paid to the owner or paid into court for him, and it is restated that the $100 was never ‘ ‘ paid into court for any purpose” — that the money was in possession of the railroad company. The opinion then states the question to be whether, in the circumstances stated, “the court acted within its jurisdiction in making the order that it (the fund) be paid by the railroad company directly to this respondent” (appellant here) “so that its act amounted to an adjudication of this title.” Attention was called to the fact that Barron was both the managing’ officer of the railroad and a claimant of the fund and that the road did not complete the condemnation by paying the money, but kept it and “stood by to await” what Barron “might do in its interest or his own, as the case might be.” It was also stated and somewhat stressed that it was necessary for the railroad company to pay to “the circuit clerk the amount assessed within ten days from the filing of the report, unless it should elect within that time to abandon the” proceedings. It was pointed out that the issue on the interpleas concerned only the fund and involved nothing which concerned the railroad. The opinion holds that the prompt payment of damages is required so that the public will suffer no delay and so that claimants of the property may promptly press their conflicting claims for the fund which then stands in lieu of the land taken; and that the company may not use its “extraordinary powers . . . in aid of a personal controversy. ” The opinion concludes: “The jurisdiction of the court in the determination of such collateral controversies arises from the possession of the fund alone. The proceeding is in rein and jurisdiction cannot exist without the res. It was no more effective to determine which would he the owner of the land than would be the determination of arbitrators outside of court. It is unnecessary to determine what effect a judicial determination of the ownership of such a fund in the hands of the clerk might have upon the collateral question of ownership of the remaining land.”

First, as to the difference in the facts of this and the former record.

(a) The record on the first appeal did not show the truth of the matter respecting the payment of the fund to Barron. It was not in fact paid to him by the Butler County Railroad, but was paid to him by the Circuit Clerk of Butler County. It was paid to the clerk, however, after the trial of the issues on the so called inter-pleas, and was not in his hands at the time .of that trial. It does not appear in what way this difference in the facts could affect the ruling made. There is, so far as concerns any principle announced or applied in the former opinion, no substantial difference between a payment, after the trial of the interpleas, to Barron by the clerk and a payment to him by the railroad company. The basis of the decisive ruling is the fact that the fund was not in court when that trial was had. That fact is the same on both records and is now testified to by appellant. This seems to be the only suggested difference in the facts and is not such a difference as to call, of itself, for a different ruling.

(b) If the former opinion is to be understood to hold that the effect, under Section 2362, Revised Statutes 1909, of a failure of the railroad to pay the damages awarded into court within ten days after the award was' made was to work an abandonment of the proceedings, it is brought into conflict with State ex rel. v. Fort, 180 Mo. l. c. 112, et seq., and an opinion in State ex rel. v. Withrow, 24 S. W. 638, which, though it is unofficial, is the expression of the view of four learned and eminent judges of this court. The true rule, so far as concerns the question here, is that the condemning company has ten days after the final determination of the amount of damages within which to decide whether it will proceed or abandon. It was also held in the former opinion that the proceeding on the interpleas was one in rem. This is not the case even under a bill of inter-pleader. Maclennan on Interpleader, pp. 76, 77.

(c) From this record, the dates already given, the character of the interpleas, and the course pursued it is clear the award had become final and that no proceeding for a re-assessment under Section 2362, Revised Statutes 1909, was pending or allowable after the lapse of time shown. It follows that there was an existing and final award or judgment (Martin v. St. Louis, 139 Mo. l. c. 259, 260; Union Depot Co. v. Frederick, 117 Mo. l. c. 146, et seq.) enforcibie by execution under Section 2362, Revised Statutes 1909, against the condemning railroad and in favor of “the party entitled to such damages.” In this situation Joseph Murphy filed his motion for payment of the fund into court so that “defendants may interplead for same.” The trial court was thus confronted with a motion, in effect, for execution by one claimant when both the petition in condemnation, the terms of the award of the commissionérs, and Murphy’s motion itself had advised it that Barron and Horton also claimed the whole award. “The party entitled to the damages” had not been determined. The motion could not well be sustained until that was done. The court overruled it. Thereupon the Murphys' and Barron and Horton filed pleas in the nature of inter-pleas, each side claiming title to the land and the fund and denying that the others had any title or interest therein. Barron and Horton asked that the fund be ordered paid to them, and the Murphys asked judgment for it and for costs. They invoked the judgment of the court and the court heard them. The evidence related solely to the title of the respective parties. ' The court found that Barron owned the land and was entitled to the award and that the Murphys had no title to the land and no interest in the award and ordered the money to be paid over to Barron when paid into court. This order or judgment became final and Barron was paid the $100. On the former appeal it was held this judgment was a nullity because the fund was not in court at the time of the trial of the pleas and the court had no jurisdiction or power to try them until it was in court. If this ruling was the law when made here, it was the law when the issue on the interpleas was made up, and the trial court was at that time in this situation-. It had before it an award, final and enforcible by execution in favor of the “party entitled” to it. It could not issue an execution to bring in the fund until it determined who was so entitled, and it could not, if the former opinion is right, determine who was entitled until it secured the fund, the payment of which could be coerced only by execution in favor of the “party entitled” to the fund. It had power to require the contending claimants to interplead. It has been so held. [K. C. & Atl. Ry. v. View, 156 Mo. l. c. 618; Hilton v. St. Louis, 99 Mo. l. c. 206, 207.] The parties made no objection to the informal manner in which they were brought, or came to issue. They came in voluntarily. It is obvious they cannot now raise formal objection to the pleadings. The present attack upon the judgment is collateral. The issue as to the right to the fund was clearly enough made and was tried. It is required in most jurisdictions that in formal bills of interpleader the fund be brought into court or that the bill contain an offer to bring it in. [Williams v. Walker, 2 Rich. Eq. (S. C.) l. c. 294, 295; Phoenix Tns. Co. v. Carey, 80 Conn. l. c. 432; 23 Cyc. 23; 15 R. C. L. 230.]

We have not been able to find authority for the proposition that in snch a proceeding when a suit has proceeded, without objection, interpleas have been filed and the issue tried, that the decree can be held void on collateral attack merely because the fund was not actually in court when the hearing was had and the decree entered. The reason for requiring’ the payment of the fund into court or an offer in the bill to pay it in is that the court may take control of the fund before discharging the plaintiff who files the bill, and to prevent abuse of the proceedings. [Home Life Ins. Co. v. Caulk, 86 Md. l. c. 388; Story’s Eq. Pl. sec. 291; Bliss v. French, 117 Mich. l. c. 540, 541.] The omission of an offer to pay the fund into court, though it is not in fact paid in, does not render the bill demurrable according to some decisions. [Blue v. Watson, 59 Miss. l. c. 625; Bliss v. French, supra.] It is otherwise in some other jurisdictions. If no injunction is asked it is said to be sufficient to offer to pay in and be ready to do so when directed. [Shaw v. Chester, 2 Edw. Ch. l. c. 406.] The failure to make such an' offer in the bill is waived if no objection is seasonably made. [Cobb v. Rice, 130 Mass. l. c. 234.] The court took jurisdiction and rendered judgment in the absence of the fund in Dunton v. Sharpe, 11 So. 168, treating the objection as waived. Doubtless, in such proceeding the court can and should require the fund to be paid in before proceeding under the bill.

This case was not strictly an interpleader suit. It was a contest over a fund to which one of the claimants was entitled. The Missouri cases already cited show the court had jurisdiction to settle the controversy between the conflicting claimants. We are not now prepared to hold that the absence of the fund deprives the court of such jurisdiction in a case in which payment of the fund into court can be compelled only by execution and the execution can only be issued after a trial of the ownership of the fund by a court having jurisdiction. So to hold -would be to hold that a valid judgment could not be enforced at all, except at the will of the judgment debtor. We are of opinion that we were in error in the circumstances of this case in holding the contrary-on the former appeal.

(d) The former opinion is,in conflict with other decisions; it inadvertently declares an incorrect rule in a matter of public concern, i. e. condemnation proceedings; it seems to give a wrong construction to an important feature of the condemnation statute; it is out of line with respect to the character of interpleader proceedings. No injustice can be done to third parties by changing the holding and none is done respondents unless it be an injustice in every case to correct an erroneous holding once made • and found the decision upon a correct view of the law rather than upon some other. This is not the sort of “injustice” which prevents the exceptions to the general rule from applying. We hold the former decision comes within the exceptions. This make it necessary to determine whether the finding or judgment on the interpleas bars respondents’ present claim of title.

II. Does the trial of the question of title in the contest over the ownership of the $100 fund and the final judgment ad- , j , ,-, , verse to respondents thereon estop them to relitigate the question of title in this case and as against appellant, who was successful as against respondents in the contest over the fund!

(1) The judgment in the contest over the fund did not directly affect the title to the land in such sense as to give this court jurisdiction of the appeal in that proceeding. It was so held in Hilton v. St. Louis, 129 Mo. l. c. 391, 392, on facts somewhat like those in this case. In that case, as in this, on the trial of the rights of parties defendant in condemnation proceedings to the fund awarded the sole question in issue was the ownership of the land taken and damaged, but it was held this court had no jurisdiction because the judgment in that controversy did not directly affect title. That case and others hold that to give this court jurisdiction it is not enough that the pleadings draw in question the title or that a- determination of title is necessary to a solution of the issues, hut to give jurisdiction here on that ground the judgment sought or .rendered must directly affect or operate on the title itself. [Davis v. Watson, 158 Mo. l. c. 196; Price v. Blankenship, 144 Mo. l. c. 205, et seq.; Cox v. Barker, 150 Mo. 424; Kennedy v. Duncan, 224 Mo. l. c. 664, 665, and cases cited; Rothrock v. Lumber Co., 146 Mo. l. c. 58, 59; Stough v. Light & Power Co., 217 S. W. l. c. 519, and cases cited.] The judgment in this case had no such effect. That rule is applied because of a constitutional direction that jurisdiction shall be taken by this court on appeal when title to real estate is involved and because of the construction given by this court to that mandate.

(2) It does not follow from this rule, which governs appellate jurisdiction, that title was not tried on the interpleas in such sense as to bar a relitigation of that question between the parties to this case. That depends upon a different principle. As stated, the statute, as does the Constitution, gives the award to the owner of the land taken and damaged; the interpleas put the title in issue; the record here conclusively shows the court tried that single issue, and that its finding was upon that issue. It was upon this sole issue that the right to the award depended and was determined. Though the cause of action be different, yet are respondents estopped by the verdict or finding “as to the point or question actually litigated and determined in the original action.” [State ex rel. Water Co. v. Eastin, 278 Mo. l. c. 668, 669; State ex rel. v. Mining Co., 262 Mo. l. c. 501, 502; Hickerson v. City of Mexico, 58 Mo. l. c. 64, 65; Estes v. Nell, 140 Mo. l. c. 646, 649, 650; State ex rel. v. Branch, 134 Mo. l. c. 603, 604; Sampson v. Mitchell, 125 Mo. l. c. 230; Sconce v. Long Bell Lbr. Co., 54 Mo. App. l. c. 512, 513.] Mr. Bigelow denominates estoppel of this kind as estoppel by verdict. [Bigelow on Estoppel (6 Ed.), p. 100, et seq.] He quotes (pp. 104, 105) with approval from Outram v. Morewood, 3 East, 346, in which Lord Ellenborough said: “But if it he said that by the freehold coming in debate must be meant a question respecting the same in a suit in which the freehold is immediately recoverable, as in an assize or writ of entry, I answer that a recovery in any one suit upon, issue joined on matter of title is equally conclusive upon the subject-matter of such title.” [See further: Baumhoff v. Railroad, 205 Mo. l. c. 263, et seq.; 15 R. C. L. sec. 450, p. 973, et seq.]

(3) The actual issue made concerned the title to the whole forty acres across which the right of way ran. The evidence related in all respects to the title to-the entire tract. The deeds and records offered included the whole. The sole effort of each party was to show title to the whole and by this means substantiate his claim to the fund which represented but a part of the whole. Is the estoppel of the finding or verdict limited, in these circumstances, to the strip taken for right of way or does its bar extend to this controversy over the title of that part of the forty acres not taken for right of way? Let it be conceded that a grantee of the Mur-phys might not have been estopped in a contest with appellant over the title to the tract involved in this case under the principle announced in Hart v. Moulton, 104 Wis. l. c. 353, et seq., and Grunert v. Spalding, 104 Wis. l. c. 225; that estoppel of those in privity is limited to the very subject-matter in question when the judgment was rendered. Those decisions further announce, in contrast, that the estoppel, as between the parties, is personal and extends to the whole issue litigated, though the subject-matter be different.

In Brack v. Boyd, 211 Ill. 290, it was held that a judgment of title in plaintiffs to one tract, based upon a finding that the adoption of their mother had been valid, was cob elusive as against the same defendants in an action by the same plaintiffs for partition of another tract, it was held the decision of the issue of adoption in the first case could not he questioned in the second case. The court cited Hanna v. Reed, 102 Ill. 596, in which a judgment in Indiana, which held invalid a deed to a tract of land in that state on the ground that the grantor was incompetent, was held conclusive on that question in a suit in Illinois between the same parties to set aside a conveyance by the same grantor, at the same time, of a tract in that state. In Preston v. Harvey, 2 Hen. & M. (Va.) l. c. 63, it is said: “It has. long since been settled that a verdict on the same point and between the same parties may be given in evidence, though the lands are not the same, if the matter was in issue in the former case.”

In Last Chance Mining Co. v. Tyler Mining Co., 157 U. S. 683, the court had under review the record of the Court of Appeals in an action begun by the Tyler Company against the Last Chance Company to recover possession of a portion of a mineral vein and the value of ores previously taken therefrom. On one phase of the case the priority of location as between the mining claims of the two companies was “a pivotal question.” The Last Chance Company offered in evidence a judgment in its favor in a former action it had brought against the Tyler Company in which the controversy immediately concerned a triangular parcel covered by both claims, an interlock. The question in that action was that of priority of location of the respective claims. The case considered in 157 U. S. 683, did not concern the parcel which was the subject-matter of the former action but involved other property contended to bp within the locations. The Court of Appeals had excluded the judgment. While the parcels of realty were different, yet it was held the decisive question, priority of location, had been adjudicated in the former action between the same parties as to a part of the claim included within the same location covering the property involved in the second action. Calling attention to this the court said: “The particular matter in controversy in the adverse suit was the triangular piece of ground, which is not the matter of dispute in this action. The judgment in that case is therefore not conclusive in this as to matters which might have been decided, but only as to matters which were decided.” The court held the former judgment admissible. In New Orleans v. Citizens Bank, 167 U. S. l. c. 396, and cases cited, several applications of the rule can he found. In Custer v. Hall, 71 W. Va. l. c. 123, it is held that an adjudication of the title to a particular tract of land, or an undivided interest therein is conclusive between the same parties with respect to the title to another tract claimed adversely by them, in the same manner and under the same chain of conveyances. In Bigelow on Estoppel, pp. 177, 181, 169, 170, it is stated “that by the weight of authority the judgment is conclusive upon all issues which have become necessary to the decision of the case, whatever their relation to the cause of action.” The cases cited give the reasons for the principle and the case at bar falls well within them.

(4) The adjudication of the issue in the former-case is evidence, and in this case it is conclusive evidence because the pleadings, the record, the very judgment rendered, show the trial, as the sole issue in that case, of the issue determinative of this case. [Herman on Estoppel, sec. 106, p. 107, et seq.]

The judgment is reversed and the cause remanded with directions to enter judgment for defendant,

All concur.


source: Caselaw Access Project

author: BEOWN, C. PER CURIAM:

license: Public Domain

text:
    CHARLES P. VAN GRAAFIELAND and MARY H. VAN GRAAFIELAND, v. H. J. WRIGHT, VICTORIA IDA WRIGHT, H. A. MOORES and EDMUND BURKE, Appellants.
    Division One,
    March 5, 1921.
    1. EXECUTION SALE: Setting Aside in Equity: Inadequacy of Price: Fraud. Where a house and lot worth $20,000 are sold for $87.50 at execution sale on a mechanic’s lien judgment, to the plaintiff in the execution, a sub-contractor, the inadequacy of the price is so great as to shock the conscience and constitute fraud, justifying, in connection with other facts in the case, the setting aside of the sale and cancelling the sheriff’s deed in a suit by the owner, one of the execution defendants.
    2. -: -: -: Proof of Fraud. Where the inadequacy of price, for which property is sold at an execution sale, is so great as to shock the conscience, such inadequacy amounts to proof of fraud.
    3. -: -: -: -: Evidence. In this case the evidence is examined and analyzed and upon the facts found it is hel'l that there was fraudulent contrivance between the contractor and sub-contractor for the erection of the house of plaintiffs and the bonding company which made a bond to secure the performance of the contract and to protect plaintiffs from mechanic’s liens, to deprive plaintiffs of their property for a grossly inadequate price, justifying the setting aside such sale, on 0a bill in equity for that purpose.
    4. -: Mechanic’s Lien Judgment: Duty of Sheriff. It is the duty of the sheriff, having an execution issued on a mechanic’s lien judgment against the contractor and the owner’s property, to satisfy himself, by credible information or search, that no property of the judgment debtor can be found by him within his jurisdiction, before proceeding to enforce such execution by sale of the owner’s property. And merely making inquiry of the execution plaintiff’s attorney if he knew of any such property, and relying upon his statement that he did not, is not sufficient.
    Appeal from St. Louis City Circuit Court. — Eon. Vital W.' Garesche, Judge.
    Affirmed.

      Clarence L. Shotwell, John V. Lee and Clarence T. Case for appellants.
    (1) The petition in this case does not state a canse of action; that plaintiffs failed to plead inadequacy of price and the court erred in giving them relief on that ground. Brown v. Chaney, 256 Mo. 219; Mangold v. Bacon, 229 Mo. 459. (2) The court erred in finding that the inadequacy of price was so ’ great as to shock the conscience of the chancellor. No such inadequacy existed in view of the fact that at the time of the sale and at the time of the trial there were deeds of trust amounting to nine thousand dollars on said property, all of which appeared of record. Martin v. Castle, 193 Mo. 183; Sheppard v. Enright, 188 S. W. 186; Doughertv v. Gangloff, 239 Mo. 649; Walker v. Mills, 210 Mo. 684. (3) Where gross inadequacy of price is pleaded and proven, the court may, acting with caution and only in an aggravated case, and when no aid from other equitable consideration is at hand, grant relief on the ground that the inadequacy of price raises the presumption of fraud. But this presumption does not arise where the record rebuts such presumption. Briant v. Jackson, 99 Mo. 585. (4) Where one is served personally with process in a suit, appears in court and contests it, knows that Judgment has been rendered against him, but sits idly by, stolidly defying the law, and permits his property to be sold, or even invites such action, his plea for equitable relief should fall upon deaf ears, since the inadequacy, if any, was occasioned by his own conduct and indifference. Brown v. Chaney, 256 Mo. 219; Briant v. Jackson, 99 Mo. 585. (5) Conveyances with a view to obtaining a larger price from some future purchaser show no fraud against the former owner. Walters v. Hermann, 99 Mo. 533. (6) Courts cannot assume fraud nor disturb titles upon plausible conjectures.' Briant v. Jackson, 99 Mo. 585. (7) Purchaser at sheriff’s sale takes title with general knowledge of mortgage liens, and he is bound to assume same legal and valid. Sheppard v. Enright, 188 S. W. 186; Owsley v. ITeirs of Smith, 14 Mo 153.. (8) Property is not subject to division because levied on under special judgment. R. S. 1.909, sec. 7752; Low v. Johnson, 102 Mo. 682; State to use v. Cave, 49 Mo. 129; Gordon v. O’Neill, 96 Mo. 350.

      Charles A. Ilouts for respondents.
    The setting aside of the sheriff’s deed and the subsequent conveyances is abundantly justified by the following considerations: (1) The failure of the Van Graafielands to pay the lien judgment of $55.45 was due to their reliance upon the assurances given them by the bonding company, that the matter would be attended to by it (the bonding company). In cases of accident or mistake, such as this, a court of equity has the power to grant the relief to those suffering therefrom. Sea-mans v. Riggin, 2 N. J. Eq. 214; Plowell v. Hester, 2 N. J. Eq. 266; Wetzler v. Schaumann, 24 N. J. Eq. 61; Williamson v. Dale, 3 Johns. Ch. 290; Bixley v. Meade, 18 Wend. 611; Tripp v. Cook, 26 Wend. 143; Ploppock v. Conklin, 4 Sant. Ch. 582; Griffin v. Hadley, 4 Bosw. :(N. T.) 587; Rogers v. Build. Co., 132 Mo. 442; McKee v. Logan, 82 Mo. 508; Wine Co. v. Scholer, 13 Mo. App. 435, 85 Mo. 496; Graffan v. Burgess, 117 U. S. 1.80; Schroeder v. Young, 161 U. S. 334; Rorer, Judicial Sales, (2 Ed.) sec. 1095. (2) The price for which the sheriff sold the property was so inadequate as to shock the moral sense and constitute a fraud upon the rights of the plaintiffs. For this reason alone courts of equity will grant relief. Mangold v. Bacon, 237 Mo. 496; State ex rel. v. Innes, 137 Mo. App. 420; Davis v. McCann, 143 Mo. 172; Donham v. Hoover, 135 Mo. 210; Rogers v. Build. Co., 132 Mo. 442. (3) Because of the inadequacy of the price bid for the property, the sheriff, who, in selling the property, was agent for both the plaintiff and the defendants in the execution, should lave declared the sale “no sale” for want of bidders, and so returned the execution. It was his duty to see that the property was not sacrificed. David v. McCann, 143 Mo. 172. (4) The property was susceptible of division and a small part thereof could have been sold for enough to satisfy defendant’s judgment. The sheriff failed to examine the property to see whether it was susceptible of division, and sold it in bulk. This was contrary to the statutes, and justified the court in setting aside the sale. Sec. 226, E. S. 1909; Teaman v. Lepp, 167 Mo. 72; State ex rel. v. Young, 61 Mo. 397.
   BEOWN, C.

Suit in equity to set aside sheriff’s sale and deed thereunder conveying the following land in Sfc. Louis County:

‘ ‘Lot 9 of Southmoor Subdivision of St. Louis County fronting 87 feet on a private street, running thence back in a northerly direction 211.88 feet, more or less, on the east line, and 226.75 feet more or less on the west line, by 143 feet on the north line, in said Southmoor Subdivision, together with buildings and improvements located thereon.”

The petition states, in substance, that the plaintiffs, husband and wife, were at all the dates mentioned, the owners of said land, which was and is of the value of twenty-five thousand dollars; that on October 25, 1916, the defendant Wright brought suit before one L. F. Matthews, a justice of the peace at Clayton, Central township in said county, against B. J. Charleville as contractor and plaintiffs as owners of said’ land, for fifty-five dollars and forty cents for labor and material furnished to said contractor in the construction of improvements thereon, and asking that the judgment against Charleville be declared a lien upon the land and improvements. That on December 18, 1916, the justice rendered judgment for that amount against Oharle-ville, and, if no sufficient property of his should he found, to be levied of said land, which was charged with a lien therefor. That a transcript of said judgment was filed in the office of the Clerk of the Circuit Court of said county, by whom an execution was issued thereon on May 9, 1917, in the statutory form prescribed in such cases. This was duly levied upon the land, which was sold thereunder on June 11, 1917, to defendant H. J. Wright, who was the only bidder, for eighty-seven dollars and fifty cents, and a sheriff’s deed duly executed to him therefor. That thereafter, said Wright and wife conveyed the same land by warranty deed reciting a consideration of $2,000 to defendant Moores, who, on August 9,1917, conveyed it to defendant Burke by warranty deed reciting a consideration of $2,250. Both these deeds were promptly recorded. Neither of these grantees paid anything for the land, or claim any interest therein, and the deeds were made for the pnrpose of casting a cloud upon the title for the accommodation of Wright.

It also states that Charleville contracted with the plaintiffs for the erection of said improvements, for the completion of which, discharged of all liens for work and materials, he g’ave bond with a corporation as surety; that upon the recovery of said judgment plaintiffs immediately notified the surety company, which agreed to take care of it; that they were not notified, nor had theyr any knowledge or information of the filing of the transcript, the issue of the execution or sale of the property, and did not hear of it until demand for possession was made upon them by Wright after his purchase. That they" then offered and still offer to pay him the amount of his judgment and all costs and expenses incurred in the premises which he refused and still refuses to accept, and, until his said transfer to Moores claimed to be the owner of the premises, and demanded possession thereof.

That Moores and Burke received the conveyances to themselves respectively with full knowledge of all the facts and for the purpose of assisting defendant Wright to defraud plaintiffs.

The prayer is that the sheriff’s sale and deed thereunder, together with the deeds to Moores and Burke, be set aside, and for general relief.

The answer of Wright sets out his judgment and sheriff’s deed substantially as stated in the petition, and admits the execution of the deeds to Moores and Burke, and says they were made “for the purpose of enabling the defendant to secure from a subsequent purchaser whatever value the defendant’s equity in the property may be worth.” It puts in issue the values stated in the petition, and all averments not admitted.

Moores and Burke disclaim any interest under their deeds.

The following facts appear in the record: The property in question is a lot containing something over one-half acre of ground. Mr. Charleville, as contractor, built a residence on the land for plaintiffs, for which he was to receive as the contract price $11,440, the building to be completed sometime in November, 1915. To secure the performance of this contract he gave bond in which the American Surety Company was surety, conditioned, among other things, against liens for work and materials furnished by him in its construction. In December, 1915, the building being practically completed, Mr. Charleville asked for settlement with the architect, who on examination of the building, found it deficient in several respects, including the shrinkage of the hard wood floors away from the baseboards; settlement of the foundation so as to leave a hump in the floor and defective plastering through which the laths showed, so that it could not be properly frescoed as contemplated. These things Mr. Charleville promised to complete but a settlement was not arrived at until the next spring, when Mr. Van Graafieland paid all amounts claimed from him by Charleville with the exception of the $55.40, out of which this difficulty has arisen. It is not disputed by Mr. Charleville that he owed Wright this sum, but he says that Mr. Van Graafieland, through the architect, promised to pay it. This Mr. Van Graafieland denies. On September Í4, 1916, Wright, through his attorney, notified plaintiffs of his claim, and that if the same should not he paid within ten days a lien would be filed against the building. Plaintiffs on the next day notified the surety company in writing of this, and closed as follows: “I am advising you so that you may give the matter your immediate attention.”'

Mr. Van Graafieland also on the same day transmitted a copy of this letter to Charleville. The suit was instituted before the justice of the peace on October 25, 1916. The plaintiffs were both present at the trial but it was taken under advisement, and judgment was not rendered until December 18, 1916. Charleville was at Arcadia, Iron County, Missouri, at the time, and entered his appearance by letter.

Mr. Van Graafieland testified that as soon as the plaintiffs learned of the judgment, he went to the office of the bonding company and told Mr. Eggers, its attorney, who said it did not amount to anything, and that they should let the bonding company take care of it, and that if anything happened, to refer it to them. They would get after Mr. Charleville, and to forget it. Mrs. Van Graafieland testifies that at about the same time she saw Mr. Myers, the manager of the St. Louis office of the bonding company, and that he told her about the same thing. Both these men were witnesses for defendants and denied these conversations.

Plaintiffs rested easy until Mr. Lee walked into Mr. Van Graafieland’s office and demanded possession.

Mr. Plerpel, the chief deputy sheriff of St. Louis County, to whom the special execution was delivered by Mr. Taylor, Mr. Wright’s attorney, testified of the conversation accompanying the delivery: “I asked him if he knew of any property of Mr. Charleville. He said he didn’t known of any, and he wanted me to execute the writ and sell the property.” The deputy made no further effort in that direction and proceeded to advertise and sell as directed.

Tlie court found that the price realized at the sheriff!’s sale is so inadequate as to shock the conscience of the chancellor; that the deeds to Moores and Burke-were without consideration, were made and received with full knowledge of all the facts, and for the purpose of assisting Wright to defraud the plaintiffs out of their property. It set aside the sheriff’s sale, annulled the three deeds mentioned, and revested the title in plaintiffs on condition that they should pay Wright the sum total, with interest and costs added, of the amount of the judgment under which he purchased, together with any further amount laid out by him, in connection with the sheriff’s sale, with interest.

The foregoing statement indicates the issues presented. The evidence will he referred to in the opinion as necessary.

I. There are certain conceded facts which differentiate this case from the most of those to which we must look for judicial authority. The property involved is not speculative in its nature, but is the home of the plaintiffs. The debt for which it was sold does not represent a duty which the citizen owes to the government as his share of compensation for his protection in both person and property. Nor is it primarily his own debt that is involved, but a liability imposed by law as surety for the real debtor. The law, in the application of its remedies for the correction of all wrongs, seeks to adjust them to the character of the duty involved in each. Where the letter of the law is sought to be used for the infliction of an injury, its spirit frequently comes to the help of the threatened party.

The property involved in this controversy is an urban lot of a little more than half an acre in extent, subject to restrictive building: regulations for the purpose of preserving it from unsightly surroundings. It had been purchased by plaintiffs for six thousand dollars cash, and a home built on it at a contract cost of eleven thousand four hundred dollars, and other improvements had been made to fit it for the use. The evidence convinces us that it must have been worth, on a cost basis, twenty thousand dollars. It had been encumbered by two mortgages — one for two thousand dollars and the other for seven thousand dollars, the latter of which had been paid.

The contract price of $11,4.00 for the house had all been paid by the plaintiffs to Charleville, the contractor, except an order in favor of defendant Wright, a subcontractor, for the $55 which is the foundation for the judgment under which the property was sold. This the architect charged by the contract with the duty of examining and passing upon had refused to certify, and for that reason it remained unpaid.

Judgment was recovered for this amount against Charleville, the contractor, and fixing upon the property the mechanic’s lien under which- this sale took place, for the price of $87.50, the amount of the judgment and costs of sale.

It is the sheriff’s deed made under this sale which the plaintiffs are seeking in this suit to have cancelled and set aside, and to that end are tendering in court the full amount of the judgment and costs, and expenses of the sale. The bid of defendant Wright at the sheriff’s sale was the only bid made, and the trial court found that the amount “was so inadequate as to shock the judicial conscience,” and set the sale aside and cancelled the sheriff’s deed made’thereunder on condition of payment of the judgment and costs as tendered. This appeal is the result.

There is no doubt that it would shock the sense of humanity bom in every normal man to stand by and see his neighbor stripped of his home for a pittance of a fraction of one per cent of its reasonable cost to him, even if his own negligence or even stubborness had contributed to the misfortune; nor that it would shock the moral consciousness that in such a case his neighbor had not been given the last chance to save himself from sneh a disaster. Bnt the “judicial conscience” has been supposed by some to be quite a different sentiment. It has been treated as synonymous with ‘ ‘ the letter of the law,” so that all are at liberty to follow relentlessly the line of its permissive authority without turning' to the right or to the left to avoid inflicting injury.

This is a mistake. Even the terms of an act of the Legislature cannot be made an instrument of fraud, but must yield to the honest purpose for which it was enacted [Lightner Mining Co. v. Lane, 161 Cal. l. c. 698. J Neither can fraud be crystalized beyond solution in the decrees and oiher proceedings of courts. It was aptly said by a learned judge in Mitchell v. Kintzer, 5 Pa. St. l. c. 217: “But in the eye of the law, fraud spoils everything it touches. The broad seal of the Commonwealth is crumbled into dust, as against the interest designed to be defrauded. Every transaction of life between individuals, in which it mingles, it corrupted by its contagion. "Why then, should it find shelter in the decrees of courts?” In that case the learned judge quotes from the famous Fermer’s Case, 3 Coke’s Rep., part 4, p. 77, “that the law doth abhor fraud and covin, that all acts, as well judicial as others, and which of themselves are just and lawful, yet being mixt with fraud and deceit, are in judgment of law wrongful and unlawful; quod alias bonum et justum est, si per vim vel fraudem petatur, malum et in justum efficitur

In the Mitchell Case we find a definition of fraud in its application to transactions of this character, so terse and yet comprehensive, that we are constrained to repeat it. Says the court: “It may safely be averred, that all deceitful practices fin depriving or endeavoring to deprive another of his known right by means of some artful device or plan contrary to the plain rules of common honesty, is fraud.” (l. c. 219.) This is an honest definition, creditable to the law, and especially creditable to the court that embodied it in language so concise, plain and practical. We should be ashamed were it otherwise.

IÍ. That the consideration of $87.50 realized at the sheriff’s sale for this property was shockingly inadequate is not denied, and the learned and comprehensive argument on behalf of the appellants devoted to the proposition that inadequacy of price alone is not sufficient to authorize ns to set aside the sale. They also refer ns with confidence to the fact that the petition in this case- says nothing about, inadequacy of price, but simply charges that the property was worth twenty-five thousand dollars, and that it sold for eighty-seven dollars and a half. In this connection they refer ns to the decision of this court in Division Two in Brown v. Chaney, 256 Mo. 219, wherein we hold that inadequacy of consideration was not sufficiently pleaded to call for the consideration of that question as an independent cause of action. It is unnecessary to refer to the facts pleaded in that case in connection with the provision of our Code of Civil Procedure (Sec. 1793) that the “forms of pleading in. civil actions in courts of record, and the rules by which the sufficiency of the pleadings are to be determined, are, except as otherwise specially provided by law, prescribed by this article, ’ ’ and the further provision of the next following section which prescribes only a “plain and concise statement of the facts constituting a cause of action,- without unnecessary repetition,” and “a demand of the relief to which the plaintiff may suppose himself entitled.” We see nothing in the rules of pleading prescribed by the code which seems intended to call for, or even to encourage, the- statement of legal conclusions.

In this case the petition states the facts upon which the plaintiffs rely to sustain the prayer of their petition, and ask that the sheriff’s *sale and the deed thereunder, and the subsequent deeds mentioned in it, be set aside and cancelled as well as for general relief. In considering the facts it presents we shall confine ourselves to the question whether, npon those facts, the sale and deeds should he set aside for fraud upon the rights of the plaintiffs.

All rules of law and equity relating to the conduct of judicial sales point to the realization, through such sale, of the fair value of the property involved as near as may he. The notice prescribed is for the purpose of attracting the attention of the public and bringing bidders to the sale, and when these things fail of accomplishment, when no bidder comes except the person by whom the proceeding has been instigated, and results in his acquisition of valuable property practically without compensation, the owner has been damaged, and thus the corner stone has been laid for legal inquiry as to the blame. The damage is the element without which there can be no inquiry and consequently no legal redress. It thus happens that inadequacy of price is always an element in cases of this character. A distinguished author states this feature of the equitable remedy sought in this case as follows: “But although inadequacy of price will not alone be cause to set a sale aside, unless so gross as to raise a presumption of other cause, yet when inadequacy is combined with accident or appearances of fraud or unfairness, the sale will be set aside.” [Rorer on Jud. Sales (2 Ed.), sec. 1095]. The same author in the same treatise (Sec. 1086) says: “Ordinarily, inadequacy of price is not alone sufficient cause for setting aside an execution sale which is in other respects unobjectionable, and when the sale is made to a tona fide purchaser. But when the inadequacy is such as to amount to a badge of fraud, or, together with other circumstances, is such as to shock the moral sense, and particularly when surrounded by indications of hardship and unfairness, the sale will be set aside.”

Thus it will be seen that inadequacy of price is always an evidential feature of fraud. This thought was clearly stated by the Supreme Court of the United States in Byers v. Surget, 60 U. S. l. c. 311, as follows: “To meet the objection made to the sale in this case, founded on the inadequacy of the price at which the land was sold, it is insisted that inadequacy of consideration, singly, cannot amount to proof of fraud. This position, however, is scarcely reconcilable with the qualification annexed to it by the court; namely, unless such inadequacy be so gross as to shock the conscience; for this qualification implies necessarily the affirmation, that if the inadequacy be of a nature so gross as to shock the conscience, it will amount to proof of fraud. ’ ’

This statement of inadequacy of price so shocking to the conscience as to amount to proof of fraud was long ago adopted by this court. In Mitchell v. Jones, 50 Mo. 438, land worth $1,600 was sold at sheriff’s sale for $50. No other fraud was alleged but the court set aside the sale. In Davis v. McCann, 143 Mo. 172, land worth $1,500 was sold at sheriff’s sale for $6, about the same inadequacy existing in the instant case. This court set aside the sale upon bill in equity. In Guinan v. Donnell, 201 Mo. 173, we reviewed the authorities to that effect with approval. The land had been sold at about three per cent of its actual value. In this connection we said at page 202: “It would be difficult to conceive of a sale of land under execution that would be more unconscionable than the one in question. To uphold it would practically be taking the land sold under the execution from defendants, and giving it to plaintiff without the sanction of either law or equity.” This cause was determined by the Court In Banc with the concurrence of all the judges.

The question of the effect of inadequacy of consideration again came before this court in banc in Mangold v. Bacon, 237 Mo. 496, upon a bill in equity to set aside a judgment for taxes and cancel the deed of the sheriff thereunder. The court, overruling its former decision in the same case reported in the 229 Mo. 459,.held, or at least said, that in a case of that character inadequacy of consideration to such an extent as to shock the moral sense might constitute good ground for setting aside the sale and cancelling the deed. In this conclusion all the judges concurred with the exception of Judges G-eaves who dissented in a vigorous separate opinion founded upon the proposition that even the general rule which makes the decisions of this court upon questions of law conclusive between the parties to the same case when again before us, is subject to' exceptions in the interest of justice and preserves intact all those principles, which constitute the body of our common law and equity jurisprudence as well as the statutory enactments by which they have been supplemented or modified by legislative enactment. It then proceeds to the support of the proposition so often repeated by this and other American courts that inadequacy of consideration cannot, alone, amount to proof of fraud, by denuding it of the qualification annexed to it by the courts, “unless such inadequacy be so gross as to shock the conscience,” a qualification which admits that the law is equipped with a conscience. Although, in our opinion, it has little to do with the instant case the árgument has assumed it to be the key to the respondents’ position, against which the attack has been principally directed. For this reason we will pause here to discuss the meaning of this clause in its application to this case, in which the absolute and shameless inadequacy is patent, and amounts to the use of legal process to take the property from the owner without compensation. This effect is not modified by the fact that the injury results from the neglect of a public duty, of the continual recurrence of which all owners have notice by law, as in Mangold v. Bacon, supra. It resulted frpm the use of legal process employed by an individual having complete control of it, and for whose benefit and profit it was used. The meaning as between man and man of this qualification to the rule protecting sales under judicial process from disturbance on the ground of inadequacy of price thus opens a clear field for our consideration.

III. This qualification, which as been annexed by the courts to the general rule, just stated, affords the only possible protection against fraud. Statutes may be and are enacted for that purpose, but this only changes the ground of the dishonest attack. The wrongdoer is nimble and readily leaves the groupd made untenable by the Legislature and seizes the reformatory measure as an instrument for his purpose. Legal process is his ultimate weapon, and courts are therefore astute to detect and prompt to correct its unconscionable use, otherwise they would become the efficient perpetrators of many wrongs.

The phase we are considering treats of inadequacy of consideration as proof of fraud. The extent of inadequacy which constitutes such proof is that which shocks the conscience; that is to say the sense of right and wrong inherent in every person by virtue of his existence as a social entity. He knows by intuition that theft and robbery are wrong, .and that every act which deprives another of his own, by deceit or stealth and without his knowledge or consent partakes of that nature. Should he find something of great value in the public road conscience would tell him, in the absence of positive law, that its appropriation by concealment would wrong whoever might be the owner, and the conscience of his neighbor would be shocked at his attempt to do so. It is this inherent sense of right and wrong to which the law refers in this instance as conscience, and the natural effect of the wrong on those sharing the same instinct is denominated a shock to that conscience. This shock is not the effect of legal advice. It is our intuitive sense of wrong, and when it follows the contemplation of all the available facts relating to an injury' we can find no safer guide to its true character. Good conscience is a synonym of equity. The question here is whether this transaction by which an admitted injury has resulted to the plaintiffs, measures up to the standard of equity and good conscience as administered by our courts. This inquiry involves an analysis of the facts.

IV. Charleville, the contractor who built this house, claimed that plaintiffs owed him $55 on the contract price. This the architect, who was arbiter in the matter, refused to certify, and, for that reason, the plaintiffs refused to pay it. Charle-ville owed defendant Wright a balance on a subcontract for painting and paid him all but $55, for which he gave him an order on plaintiffs, the owners, which the architect refused to certify. Under these circumstances the plaintiffs, as owners, by virtue of the mechanic’s lien law, stood in the relation of quasi-sureties for the amount. A covinous agreement was made between Charleville and defendant Wright by which the latter brought suit against plaintiffs, who did not owe him, and Charleville, who did, to enforce his lien against the property for the amount. Charleville went to Iron County, Missouri, where he was during the pendency'of the proceeding, but, to facilitate the recovery of judgment, sent to plaintiff’s attorneys his written entry of appearance, which was filed with the justice and his appearance duly entered upon the docket. Service was had upon the plaintiffs and the cause proceeded in due course and the statutory judgment (R. S. 1909, sec. 7752) was finally entered.

Mr. Charleville was a client or customer of the American Surety Company, doing business in St. Louis. All were interested in the inquiry. The contractor and his surety had taken it up together, and why the surety should ignore the obligees of the bond for any. other reason than to permit plaintiffs to sleep away their opportunity is not clear.

While there is nothing in the record to impeach directly or indirectly the truthful character of the plaintiffs, the defendant Wright impeaches himself by the confession that he falsely stated in his deed to Moores for the purpose of deceiving a possible purchaser, .that he had sold the land for $2,000. By direction of Wright’s attorney Moores made the deed to Burke in which he stated that he had received a consideration of $2,250: Burke was asked by Mr. Lee to receive this deed and hold the title to the property for Wright because.it was feared that Moore would turn it back to the original owners. Lee was not willing to leave such a trap set for his client, and Burke, within three days after receiving his deed, conveyed the land with warranty to Lee. This deed was not recorded, and its execution only appeared upon the trial.

The trial court undoubtedly found from the evidence as we now find that the whole matter of the enforcement of this lien was a, scheme between Charleville and Wright by which the former was to obtain through this proceeding the $55 which the Van Graafielands claimed they did not owe. That for that purpose he entered his appearance in the suit in St. Louis County while he remained in Iron County so that plaintiffs were powerless to make a defense. That the plaintiffs were purposely kept in ignorance of all proceedings for the sale of the property after the rendition of the judgment, so that title might be acquired by Wright for his share in the transaction, and that Mr. Lee might receive a fee for his professional handling of the matter through the manipulation of the discredited title, and that the first intimation that plaintiffs received that the matter was not being looked after by the Bonding Company according to its promise, was the demand for possession by Mr. Lee when the process .of the law had served the purpose for 'which it had been invoked. The plaintiffs lived upon the property and were accessible at their home. They were also accessible through the office of Mr. Van Graafieland where they communicated with him as soon as they believed him to be inextricably entangled in the net which they had woven around him. It is inconceivable that they should have disregarded the fact tliat this special execution was performing- its work had they known it, and the fact that Mr. Charleville had been advised by the surety company while it denies any communication whatever with the obligees in their bond indicates that the interest they took in the matter was not in their own behalf, and combines with its improbability to weaken the effect of the testimony of its agents against the positive and unequivocal testimony of both the plaintiffs. We are compelled to believe that their sense of security was not madness but the result of the promises which they detail in their testimony.

Y. The. conduct of the sheriff in handling this execution is deserving of notice. The judgment under which it was issued was a statutory one (R. S. 1909, sec. 7752) and created by its terms the g-wasi-relation of principal and surety between Charleville and plaintiffs. It only creates the absolute relation of judgment debtor against the former, with a conditional liability against the property “if sufficient property of the debtor cannot be found to satisfy such judgment and'costs.” “Cannot” is a strong word and absolutely requires the sheriff, by credible information or search, to satisfy himself that no property of the judgment debtor could be found by him within his jurisdiction. This.is the very least he could have done in the performance of his official duty and in doing this he was acting as agent for these plaintiffs as well as for defendant Wright, owing a like duty to each, and was bound to protect the interest of all parties concerned. The way he performed this duty is detailed'in his own words in the evidence. Wright’s attorney, Mr. Taylor, delivered to him the execution. He testified: “I asked him if he knew of any property of Mr. Charleville. He said he did not know of any and he wanted me to execute the writ and sell the property.” This was all that happened. The sheriff received no information tending to show that Charleville had no property in the jurisdiction. Taylor did not tell him that he had ever given a thought to that subject. The only interpretation of which the words were susceptible was that Taylor knew nothing: about it and that he wanted this property sold in any event. He kept, or at least tried to keep well within the law which denounces a lie in such cases, and at the same time to cast the whole burden upon the sheriff by the demand that this property be sold. The sheriff assumed this burden without protest, and without knowledge or information, by reciting in his deed that “no property of B. J. Charleville, was or could be found whereon to levy said execution.” While this recital is evidence of the fact in determining the legal effect of the deed, the question now is whether it was through the procurement of' Wright’s attorney to secure a sale which might and did accomplish the acquisition of the property by his client without consideration. The fact of the' sacrifice is admitted and the motives and conduct of the parties in bringing it about are the matters we now have under consideration. The motive which requires a falsehood express or clearly and deliberately implied is pertinent to the issue. The sale proceeded. No bidder was present unless the party who concocted it may be denominated a bidder. By way of a bid the fees and costs of those who had participated in the sale were figured and included as consideration, so that each person assisting in the transaction, including the sheriff, was paid something for Ms services and the title was transferred by their acts to Wright.

The sheriff, as we have said, was bound to protect the interest of all parties to the process. He was the agent of all and if his advertisement had- attracted no bidder it was his business to take notice of that fact and, if honesty and fairness required it, to return the execution “no sale for want of bidders.” [Davis v. McCann, 143 Mo. l. c. 178 and cases cited.]. The entire proceeding had been a farce, for it is absurd to say that one charged by law with making a sale by public outcry may perform his full duty without any knowledge or information of the property he is selling which he may communicate to the bidder. In this case there was no bidder and he should have acted accordingly.

The Davis case just cited stands npon all fours with this. In that case at page 179, we said: "While a judicial sale should he upheld when it can be done without manifest injustice to a purchaser at such sale and parties directly interested in the result thereof, the process of the court should not be used as a medium through which the property of one citizen is taken and given to another.” So say we in this case. -

VI. Before closing we desire to say that we have not determined in this case that inadequacy of consideration alone is ground for setting aside a sheriff’s sale in equity. If such a case can be, where the property is of great value and the consideration simply nominal and the judgment debtor is the purchaser, we have not endeavored to consider it. We have simply devoted a few words to the disentanglement of the rule always stated by the court with its -proviso, and to show that the form in which it has been stated by the English and American courts and law writers for ages is not an absurdity. We hold that where property is attempted to be confiscated by legal process as in this case the courts owe it to themselves to inquire with some care whether the transaction constitutes an honest attempt to collect a debt or results from a desire to wrongfully and oppressively use the process of the court to obtain the property of another without adequate consideration.

For the reasons we have stated we have in this case arrived at - the latter conclusion, and accordingly affirm the judgment of the Circuit Court of the City of St. Louis.

Small and Ragland, CC., concur.

PER CURIAM:

The foregoing opinion of BbowN, C., is adopted as the opinion of the court.

All of the judges concur, except Woodson, J., not sitting.


author: SMALL, C. PER CURIAM:

text:
    SLIGO FURNACE COMPANY, Appellant, v. JAMES M. LAIDLEY et al.
    Division One,
    March 5, 1921.
    SUIT TO DETERMINE TITLE: Unsigned, and Unsealed Execution: Void Sale. A special fieri faoias issued in 1880 on a judgment in the circuit court for back taxes which is neither signed nor attested by the clerk nor sealed with the seal of the court or any other seal, is merely void, and a sale of land thereunder is likewise void, and the sheriff’s deed based thereon conveys no title.
    Appeal from Iron Circuit Court. — Hon. E. M. Bearing, Judge.
    Affirmed.

      Edgar & Edgar and Watts, Gentry & Lee for appellant.
    (1) In a suit to quiet title, a tax deed will not be held to have been invalid on the ground that the land sold ■ for a grossly inadequate price. Such an objection cannot be raised in a collateral proceeding. Lumber Co. v. Carroll, 25'5 Mo. 357. (2) “Laidly” and “Laidley” are idem sonans. Maier v. Brock, 222 S. W. 74. (3) The mere' inadvertent failure of the clerk to sign his name to the execution which was otherwise regular and entirely in conformity to the judgment and which was actually executed, is immaterial and does not invalidate the tax proceeding. Stewart v. Severance, 43 Mo. 322; Morrison v. Turnbaugh, 192 Mo. 445; Pee v. Ry. Co., 58 Mo. App. 96.

      Arthur T. Brewster and Sam M. Brewster for respondents.
    (1) The sheriff’s tax deed is void for the reason that there was no valid execution issued on the judgment for delinquent taxes to give the sheriff valid authority to sell the land of the defendant. Secs. 2236, 6838, R. S. 1879; Bennett’s Admrx. v. Yinyard, 34 Mo. 218; Pee v. Ry. Co., 58 Mo. App. 96; Wolz v. Yenard, 253 Mo. 87. (2) The statute in force on the date of the issuance of the purported execution required the clerk to issue and attest all process, and affix the seal of his office thereto. Sec. 627, R. S. 1879; Swink v. Thompson, 31 Mo. 338. (3) The statute prescribes the form of a special fieri facias, which shows that it must be authenticated by the clerk of the court from which it was issued. Sec.' 2236, R. S. 1879. (4) The tax proceedings being based upon constructive service by order of publication, that method of service, being highly technical, must be strictly pursued and strictly construed-Harness v. Cravens, 126 Mo. 233; Shuck v. Moore, 232 Mo. 649;'Kunzie v. Hickman, 243 Mo. 103; Stanton v. Thompson, 234 Mo. 11; Ohlman v. Mill Co., 2:22 Mo. 62; Turner v. Gregory, 151 Mo. 103;' Chilton v. Tam, 235 Mo. 498.
   SMALL, C.

Suit to quiet title. The defendants are the heirs of James M. Laidley, deceased, who is the common source of title. Plaintiff claims title by virtue of sheriff’s deed made to its grantor, Eli D. Ake, dated November 20, 1880, under a proceeding by the collector for back taxes. The proceeding was by publication against said James M. Laidley as a non-resident, and it is regular in all respects, from the filing of the petition up to and including the making and delivery of the sheriff’s deed, except the execution.

The defendants introduced in evidence an original paper found in the files of the case, which is a regular special fieri facias, in all respects purporting to be issued under .said judgment in said tax suit, except that it'is neither signed nor attested by the clerk, nor sealed with the seal of the court nor any other seal. The attestation clause is as follows:

“Witness Jos. Huff, Clerk of said Court with, the seal thereof affixed at office, in the City of Ironton, this 25th day of Sept. 1880.Clerk.”

The sheriff’s return and report of sale is endorsed thereon and refers to it as a writ, thus: ‘ ‘ Executed this writ on the 24th day of Sept. 1880,” by seizing and selling the property, etc. There was also endorsed on the back the number and style of the case, date and amount of judgment, and sundry items of costs. Also the following: “Received Oct. 28*, 1880 on this execution $5 from the sale of the -within described land and return the same not satisfied. Jos. Buford Sheriff.”

There is no claim that there was any other execution than this unsigned and unsealed paper in said tax suit. The lower court held that said execution and the sale thereunder were void, and rendered «judgment for the defendants. Plaintiff took the proper steps to lodge an appeal in this court.

We think the circuit court was right. The law governing the collection of judgments in such tax proceedings (Sec. 6838, R. S. 1879) provides that “a special fieri facias shall be issued thereon which shall be executed as in other cases of special judgment aud execution.” Also, by Section 6837, R. S. 1879, it is provided, that in all such suits, “the general laws of the State as to practice and proceedings in civil cases shall apply, so far as applicable.” There are no other provisions of the back tax act referring to such special executions. We must, therefore, look to the general law relating to executions. Section 2336, Revised Statutes 1879, provided for and set out the form of an execution with an attesting clause, as follows: “Witness: E. P. clerk of the said court, at this-day of--in the year-. E. F. clerk.”

. Section 4037, Revised Statutes 1879, required all writs and proesss to run in the name of the State of Missouri, to be “tested by the clerk of the court from which the same shall he issued, and sealed with the judicial seal of such court.” And Section 4038, Revised Statutes 1879, that all such writs and process should “he subscribed hy the officer issuing the same.”

The rulings of our courts regarding the failure to comply with these provisions have been as follows: The requirement that the writ should run in the name of the State is merely directory, and its omission does not invalidate the execution. [Davis v. Wood, 7 Mo. 165; Doan v. Boley, 38 Mo. 449; Creason v. Yardley, 272 Mo. 285.] So, also, is the requirement that all writs shall he issued under the seal of the court, and failure to attach the seal does not render a writ of attachment void. [Jump v. McClurg, 35 Mo. 193.] In the case last mentioned, it does not appear that the writ was not properly signed. But a writ not signed, although it has the seal attached, was held subject to he quashed on motion, and unless amended, void. [Smith v. Hackley, 44 Mo. App. 614.]

But, in the case before us, the writ was neither subscribed nor attested hy the clerk, nor issued under the seal of the court. In some jurisdictions, unless both the seal of the court and signature of the clerk authenticate the execution, it is held void and a sale thereunder passes no title. [Hernandez v. Drake, 81 Ill. 34; Sidwell v. Schumacher, 99 Ill. 426; Weaver v. Peasley & Co., 163 Ill. 251; O’Donnell v. Merguire, 131 Cal. 527; Williams v. McArthur, 111 Ga. 28; Ray v. Trust Co., 93 S. E. 418; Biggess v. Winkles, 124 Ga. 990; Boal’s Lessee v. King, 6 Ohio, 11; Taylor v. Taylor, 83 N. C. 116.]

But, in other states, the absence of the seal of the court, present the signature of the clerk, or vice-versa, is held not to invalidate the execution or the sale thereunder. [Kipp v. Burton, 29 Mont. 96; Taylor v. Buck, 61 Kan. 694; Warmoth v. Dryden, 125 Ind. 355; Rose v. Ingram, 98 Ind. 276; Taylor v. Courtnay, 15 Neb. 190; Dominick v. Eacker, 3 Barb. 17; Hall v. Lackmond 50 Ark. 113; Arnold v. Nye, 23 Mick. 286; Purcell v. McFarland, 23 N. C. 34; Corwith v. Bank, 18 Wis. 560; Parsons v. Swett, 32 N. H. 87; Inskeep v. Lecony, 1 N. J. L. 111; People v. Van Hoesen, 62 How. Prac. 76; Jett v. Shinn, 47 Ark. 373; 10 R. C. L. page 1239, et seq., secs. 28, 29 and 31.]

We have keen able, however, to find no case holding that a paper purporting to he an execution, but which has neither the seal of the court nor the signature of the clerk attached to it, is of any validity whatever. To hold that such paper, is valid as an execution would be to set at naught all safeguards provided by law to insure the identity, integrity and genuineness of the final process of the court, and, in effect, to rule that real and personal property could be levied upon and sold by the sheriff without any execution at all. An execution not authenticated by either the signature of the clerk or seal of the court is of no more legal efficacy than a blank piece of paper, or an unsigned deed, or an unsigned and unwitnessed will.

Finding no error, we affirm the judgment.

Brown and Ragland, GG., concur.

PER CURIAM:

The foregoing opinion by Small, 0., is adopted as the opinion of the court.

All of the judges concur.