author: BROWN, C.

text:
    W. C. KEATON, Appellant, v. PAUL HAMILTON et al.
    Division One,
    April 1, 1915.
    1. COUNTY LINE: Judicial Notice. The court should take judicial notice that all that part of section 7 in township 24 of range 13 lying west of Little river was in 1869 in Stoddard county. By whatever name Whitewater, made the boundary between New Madrid and Stoddard counties in that vicinity, is now known, somewhere along its course it becomes Little river, and was the river by which the boundary line between the two counties was fixed by the Act of 1868, until it was changed by the Act of 1872, by which the county line was'removed to the west line of said section 7.
    2. SWAMP LANDS: Ringer Patents: County Warrants as Consideration: Estoppel. The various decisions-of this court holding the Eltzroth patents of certain swamp and overflowed lands in Stoddard county to be valid and to have conveyed the legal title to the grantee, have now become a rule of property; and the execution by the said Eltzroth, special commissioner, of the patent of 1869 to Lewis M. Ringer, for which the county received in payment warrants worth to it their face value and equal to the consideration expressed, being within the powers of the county, and the instrument showing upon its face that the power was well executed, the county, by retaining the consideration for thirty years thereafter and by failing to disturb the status, ratified the transaction, and is estopped to question the grant; and no one claiming adversely to the said Ringer or his grantees will be permitted to assert any equity in the county.
    3. TAX DEED: Suit Against Record Owner by Initials. Where the title stood upon the record in the name of Lewis M. Ringer, and notice was given by publication to and judgment by default was rendered against L. M. Ringer, a sheriff’s deed, made in pursuance to said judgment, conveying the title and interests of L. M. Ringer, did not convey the title of Lewis M. Ringer.
    4. -: Three-Year Limitation: Application. The act of March 30, 1872, Laws 1872, p. 130, providing that an action to avoid or defeat a sale or conveyance of land for taxes must be brought within three years, has no application to a sheriff’s deed made under the Act of April 22, 1877, relating to the collection of delinquent taxes.

      5. LIMITATION: Thirty-Year Statute: Lawful Possession for One Year. Section 1884, Revised Statutes 1909, requires that in order for it to constitute a bar the land shall have been in the lawful possession of the person claiming adversely to the legal title for one year prior to the bringing of the action; and in order that such claimant may interpose that statute as a defense, it is necessary for him to show there was some condition that the law will construe as possession, either actual or constructive. Actual possession for seven months prior to bringing the action is not a sufficient defense. Nor will the possession and cultivation of forty or fifty acres in another section, between which and the land in suit there intervenes an unfenced square mile of swamp and woods, although described in the claimant’s invalid deed, nor will the selling of some timber off the unfenced land in suit or the pasturing of cattle thereon, support the running of the statute or authorize the presumption of notice to the true owner that his possession was interrupted or his title in danger.
    6. LACHES: Adverse Possession. The doctrine of laches is not applicable to a suit to quiet title to land, where the whole question relating to the loss'of the legal title is dependent upon the non-payment of taxes and lawful possession for one year under the thirty-year limitation statute.
    7. CONVEYANCE: Under Seal: Scroll. A recital in the testimonium clause that the deed is given under the hand and seal of the maker is a sufficient showing that the instrument was sealed, whether or not its record shows a seal was actually attached.
    Appeal from Stoddard Circuit Court.W. 8. G. Walicer, Judge.
    Reversed and remanded.

      Brewer & Riley for appellant.
    (1) The court will take judicial knowledge that the land in question was on the 6th day of May, 1869, in Stoddard county. Woods ex rel. v. Henry, 55 Mo. 563; Parker v. Burston, 172 Mo. 87; 17 Am; & Eng. Eney. Law (2 Ed.), pp. 912-3; State v. Pennington, 124 Mo. 321; 1 G-reenleaf on Evidence (6 Ed.), p. 10. (2) The land in question being in Stoddard county on the 6th day of May, 1869, and at that time belonging to Stoddard county and being on that day conveyed to Lewis M. Ring-er, the change of - the county boundary between New Madrid and Stoddard counties in 1872, putting this land in New Madrid county, a patent from the State of Missouri to New Madrid county and a patent from the county to John H. ILimm'elberger, under which defendant claims, conveyed no title, and did not affect the title acquired by said Lewis M. Ringer under the said patent issued on May 6, 1869. And it makes no difference that the said patent to the said Ringer was not after the change of said boundary line filed for record in the office of the recorder of deeds in New Madrid county. Mosher v. Bacon, 229 Mo. 338. (3) The judgment against L. M. Ringer for taxes and the deed issued thereunder were void and conveyed no title, for the reason the patent .issued on May 6, 1869, by Stoddard county to Lewis M. Ringer and not to L. M. Ringer. Shuck v. Moore, 232 Mo. 656. (4) The defense of laches is not available to the defendants. Hayes v. Schall, 229 Mo. 124; Bales v. Perry, 51 Mo. 449; Kingman v. Graham, 51 Wis. 232; Mayo v. Cartwright, 30 Ark. 407; Throckmorton v. Spence, 121 Mo. 50; Dameron v. Jamison, 143 Mo. 491. (5) The possession of land in section 19, which is about one mile from the land in question, is not possession of the land in question, so as to make the thirty-year Statute of Limitations or any other statute applicable. Shultz v. Lindle, 30 Mo. 309; Leeper v. Baker, 68 Mo. 403. (6) The thirty year Statute of Limitations will not avail the defendant in this case for the reason that there was no one year’s possession of the land in question next before the filing of this suit and the suit in ejectment by the plaintiff herein against George Church, the tenant of the defendants. . Fairbanks v. Long, 91 Mo. 632; Campbell v. Greer, 209 Mo. 215. (7) The three-year Statute of Limitations, Sec. 11506a, R. S. 1909, has no application to this suit, for the reason that the land in question was not sold for taxes under the revenue laws of 1872, but under the present law. Williams v. Sands, 251 Mo. 165; Blodget v. Shaffer, 94 Mo. 672; Bartlett v. Kander, 97 Mo. 361; Allen v. DeG-roodt, 98 Mo. 162; Bird v. Sellers, 122 Mo. 32; Yastine v. Land & Im. Co., 135 Mo. 150. (8) The title to the land in question is what is known as the “Ringer title” which said title has been held by this court to be a valid title. Simpson v. Stoddard County, 173 Mo. 421. (9) The patent issued to Lewis M. Ringer by Alfred Eltzroth, Commissioner, dated May 6, 1869, being valid on its face and having been recorded in the deed records of Stoddard county, on May 10,1869, and the plaintiff having acquired by deed the interest conveyed to said Ringer by said patent, could be attacked only by a suit filed for that purpose either by the county of Stoddard while said land remained in said county or by New Madrid county after said land was by the Act of 1872 put in New Madrid county. Brinkerhoff v. Juden, 255 Mo. 698.

      Wammach $ Welborn for respondents.
    (1) The title to the land in controversy was in New Madrid county on the 6th day of May, 1869. . (2) The purported patent signed by Alfred Eltzroth is void because the orders upon which it is based are void. Bayliss v. Gibbs, 251 Mo. 492; Brinkerhoff v. Juden, 255 Mo. 698; Railroad v. Hatton, 102 Mo. 55; Wheeler v.- Land Co., 193 Mo. 279; Senter v. Lumber Co., 255 Mo. 590. (3) This case is clearly distinguishable from the cases of Simpson v. Stoddard County and Brinkerhoff v. Juden for the following reasons: (a) The Eltzroth patent offered in evidence is not sufficient on its face to convey title, because it is not under the seal of the commissioner. (b) Said patent has never appeared of record in the land records of New Madrid county, (c) In this case the persons attempting to hold title under this patent are themselves the ones who have been guilty of laches, and who have never paid any taxes on this land, (d) Said purported conveyance is not in anywise benefited by the curative act of 1901. (4) Respondents’title is good under the thirty-year Statute of Limitations. .Nall v. Conover, 223 Mo. 477; Collins v. Pease, 146 Mo. 140; Farris v. Bayliss, 122 Mo. 123.
   BROWN, C.

Suit instituted in the circuit court for New Madrid county, July 13, 1910, by petition to ascertain and determine the title to all that part of section seven of township twenty-four of range thirteen lying west of Little river in New Madrid county. The petition included Paul Hamilton, Albert M. Wiles”, William P. Richards, the respondents in this appeal, as defendants. It stated that the land was wild and uncultivated, and not in the actual possession of any one. The cause was transferred by change of venue to the circuit court for Stoddard county, where it was tried without a jury during the March term, and on April 27, 1911, and at the September term the court entered its judgment declaring the title to be in said defendants, from which plaintiff took this appeal.

The first paragraph of the answer is as follows:

“Come now the defendants in the above entitled cause, leave of court first having been obtained, and for answer to plaintiff’s petition herein deny each and every allegation therein contained except claiming to be the owner of the lands involved, and pray judgment. ’ ’

It then proceeds in separate paragraphs and as distinct defenses to claim title as follows: First, by adverse possession under color and claim of title for more than ten years; second, by the lapse of thirty years without payment of taxes and adverse possession for one year as provided in section 1884, Revised Statutes 1909; third, estoppel by laches in failing to pay taxes for more than thirty years, while defendants liave paid taxes for “many years,” and drained and made other valuable improvements on said land; fourth, under a sheriff’s sale for taxes by the sheriff of New Madrid county, and the lapse of more than three years since its execution until the bringing of this suit.

The land is a part of the swamp and overflowed lands granted by the United States to the State of Missouri by the Act of Congress approved September 28, 1850, and by the State of Missouri to Stoddard county by act of the General Assembly approved February 23,1853. [Laws 1853, p. 108.]

Plaintiff introduced in evidence an order of the county court for Stoddard county appointing Alfred Eltzroth a special commissioner to make certain patents, as follows:

“Whereas an order of compromise has this day been made by this court with Lewis M. Einger and others who purchased swamp lands at the sale made by the sheriff of Stoddard county, Missouri, at the September term A. D. 1868 of the circuit court of said county, on a judgment and execution in favor of Lewis M. Einger and against said county, now, therefore, in order to carry out the provisions of said order of compromise in good faith, it is ordered by the court that Alfred Eltzroth be and he is hereby made, constituted and appointed special commissioner for and on behalf of said county of Stoddard, to make, execute, acknowledge and deliver to said parties mentioned in said order of compromise, letters-patent for the lands alluded to in said order according to the provisions therein set forth.”

Also a patent duly acknowledged as follows:

‘ ‘ State of Missouri, County of Stoddard, ss.

“To all to whom these presents shall come — Greeting: Whereas Lewis M. Einger of Stoddard county, State of Missouri, made full payment to the said county of Stoddard for the following described lands: All west of river of section 7, township 24, range 13-125 acres. [Here follows a description of other lands.] Containing in the aggregate one thousand three hundred and thirty-one and 25/100' (1331.25) acres according to the official plat of the survey of said lands returned to the General Land Office by the Surveyor-General, which said tracts have been purchased by the said Lewis M. Ringer. Now, Know Ye, that the said county of Stoddard, in consideration of the premises and in conformity with the laws of said State of Missouri in such cases made and provided, have Given, Granted, Bargained, Sold and Conveyed and by these presents do Give, Grant, Bargain, Sell and Convey unto the said Lewis M. Ringer and to his heirs and assigns forever the above described lands granted by the Government of the United States to the State of Missouri and by .said State of Missouri to said county of Stoddard. To Have and to Hold the above-described Lands with all the rights, privileges, immunities and appurtenances thereto belonging unto the said Lewis M. Ringer and to his heirs and assigns forever.

“In Testimony Whereof, I, Alfred Eltzroth, Special Commissioner, duly appointed by the county court of said Stoddard county to sell and dispose of the above described lands belonging to the said county of Stoddard for and in behalf of said county have caused these letters to be made patent. Given under my hand and seal as commissioner aforesaid at Bloomfield in said county, this 6th day of May, 1869.

“Alered Elzroth,

“Special Commissioner.”

Also quitclaim deed dated June 28, 1909, from the widow and heirs of Lewis M. Ringer, who died in Spokane, Washington, in March of the same year, to plaintiff. Also a quitclaim deed dated April 6, 1909, from P. W. Kimball and W. A. Harvey to plaintiff.

The defendants introduced patent dated August 24, 1875, from the State of Missouri to New Madrid county, granting the lands in question; and also a patent dated May 25, 1899, from New Madrid county to John H. Himmelberger, conveying the same land. Also deed from Himmelberger and wife to Ohas. M. Smith, dated June 21, 1900. Also deed from Chas. M. Smith and wife to Eichard T. Allison dated December 27, 1902, and a deed from Ora Allison and others, trustees under the will of Eichard T. Allison, deceased, dated December 6,1906, conveying this, with a large quantity of other land (aggregating eleven hundred and fifty acres) in sections eighteen,, nineteen and twenty in the same township and range, to the defendant Paul M. Hamilton; also deed from the widow of Allison dated December 1, 1906, purporting to convey the same land to the same grantee; also deeds from defendant Hamilton and wife dated December 4, 1906, to defendants Wiles and Eichards conveying to each an undivided fifth of all the lands last described.

Defendants next offered a deed from the sheriff of New Madrid county to Charles M. Smith dated June 5, 1890, purporting to convey the interest of “L. M. Einger” in the same lands in suit under a judgment for taxes rendered September 20, 1889, in the circuit court of New Madrid county, for delinquent taxes of 1884-1887 in the amount of $9.35, and costs amounting’ to $15.70. The record of this suit was in evidence showing that the judgment was rendered by default against L. M. Einger, in a suit naming the defendant by the same initials only, and that notice was given of the suit by publication only, in the same name.

The defendants also introduced the order of the county court of Stoddard county made at a special term held in April, 1869, appointing Eltzroth special commissioner to execute and deliver for and on behalf of said county the patent in evidence and others growing out of the same transaction. This order is the same that was before the court in Simpson v. Stoddard County, 173 Mo. 421, and is fully set forth in the opinion in that case. It is therefore unnecessary to incumber this opinion with a copy.

Ringer removed from Stoddard county to Eugene City, Oregon, in 1869, where he lived two years. He then went back to Stoddard county and remained about one year. In the summer of 1875 he moved with his family to Whitman county, Washington, where he continued to reside up to the time of his death. While he lived in Stoddard county he was sheriff three terms. Neither he nor any one claiming under or through him, unless it may be said that these defendants so claim, ever paid any taxes on this property from the time he left the State, so far as is shown by the evidence, and it is affirmatively stated in the testimony of Mr. Smith, the purchaser at the tax sale, that he had the books examined covering fifteen years before that time and found the taxes that had accrued during all that period unpaid. The taxes from and including 1884 were recovered in the judgment under which he purchased, leaving previous taxes unpaid. Mr. Smith paid the taxes accruing subsequently to those sued for, to and including 1902, when he sold the land; and there is no question as to their subsequent payment by those claiming through him.

In 1905 and 1906 a drainage district was organized, including about thirty-six acres of this land south of the railroad, and in 1909 ditches had been dug, which drained the water from it. Before this the water had stood on it in winter from one to two feet deep. In December, 1909, the defendants made a contract for clearing about thirty-six acres so drained for ten dollars per acre, and it was subsequently cleared and fenced and a six-room house and log barn built on it. In 1907 Mr. Hamilton sold about $350 worth of timber, a part of which was taken from this land. This he states was the last timber he sold.- He also used it for pasture in connection with the other land, but the record is entirely silent as to the dates or extent to which, this was done. The whole tract seems to have heen timber land.

At the time Mr. Smith bought the land there was a tract of forty or fifty acres fenced and in cultivation in section nineteen, which is still an independent clearing occupied by tenants who have raised crops there continuously. No use was made of the other land in connection with this.

The plaintiff bought the land' for cash from the Einger heirs, paying them seventy-five dollars for the one hundred and twenty-five acre tract in controversy.

In rebuttal the plaintiff introduced in evidence a petition in ejectment filed June 23, 1910, in a cause wherein he is plaintiff and George Church, who is admitted to have been the tenant in possession, is defendant.

The court refused the request of plaintiff to declare the law to be that laches constituted no defense to the plaintiff’s action, or that neither the plaintiff nor those under whom he claims are or were guilty of laches. It did declare, however, as follows: (1) That the land in question was, on the sixth day of May, 1869, in the county of Stoddard; and that it was the duty of the court to take judicial notice of that fact. (2) That the Einger patent conveyed to him the land in question. (3) That the ten-year Statute of Limitation did not bar the action. (4) That the patent of the State to New Madrid county did not convey the title. (5) That the patent to Himmelberger conveyed no title to him. (6) That the sheriff’s deed for taxes to Smith and Matthews was void. There was no declaration referring to the thirty-year limitation.

I. We agree with the trial court that it was its duty to take judicial notice that the land in question was in Stoddard county at the time of the execution of the Eltzroth patent to Einger. The Act 0f March 24, 1868, defining the boundary line between New Madrid and Stoddard counties describes that portion of it extending southerly from the point where the north line of section thirty-four, township twenty-six of range fourteen extended west reaches the Whitewater river as running ‘ ‘ down the middle of the' main channel thereof until it strikes the middle of township- twenty-three. ’ ’ The Whitewater, which flows southerly to the northeast corner of Stoddard county, becomes at some point along the east line of the county north of the land in question, Little river. Now, when or where the transformation takes place the writer does not know, but it is unquestionably the same stream whatever may be its name, and it awaited many years the suggestion of respondents that the Legislature, in calling it the Whitewater, had obliterated the boundary line between Stoddard and New Madrid counties.' Being the same, by whatever name it is described, it follows necessarily that any portion of section seven in township twenty-four of range thirteen which lies west of it was, from the time of the passage of the Act of .1868 until it was changed by the Act of 1872 removing the county line to the west line of the same section, in Stoddard counc-

il. One of these Eltzroth patents in the same form, depending upon the same authority for its execution, and standing upon the same record of the Stoddard County Court and the same facts for support, was before us for adjudication in Simpson v. Stoddard County, and Himmelberger v. Stoddard County, 173 Mo. 421. In that cage we held, as had been ruled by us in Pool v. Brown, 98 Mo. 675, that under the Act of March 10, 1869, “in relation to swamp and overflowed lands” (Laws 1869, p. 66), the county court had power to sell such lands at private sale at prices less than $1.25 per acre; that the only instrument relating to the sale of this land that was entitled to a place upon the land records of Stoddard county was the one that evidenced the sale of the land, that is to say the Eltzroth patent, for which the county received $13,500 in warrants worth to it the face value. The execution of this grant being within the powers of the county,- and the instrument showing upon its face that the power was well executed, it might and did, under the circumstances of that case, by retaining the consideration for thirty years, and failing to disturb the status, ratify the transaction, and was estopped from questioning its grant.

It is unnecessary to review the elaborate reasoning of that case, for it has been followed, and its doctrine, so far as applicable to this case, approved in Senter v. Lumber Company, 255 Mo. 590, 592, 593; Brinkerhoff v. Juden, 255 Mo. 698, 720-21; Wilson v. Drainage District, 257 Mo. 266, 290; and in Bryan v. McCaskill, decided in this Division at the present term, in which the same instrument was the subject of our consideration. These decisions have become a rule of property upon which those interested in the same and similar transactions have a right to depend. The malign ele.ment of fraud, which avoids all grants and contracts, at law as well as in equity, is conspicuously absent from this case. The object for which these lands were granted by the Act of Congress of September 28, 1850, was apparently a visionary one under the conditions then existing in this State. Their reclamation would necessarily cost immense sums, which it was impossible to appropriate out of the general revenues of the counties interested, and immense tracts of government land ready for the plow and axe were open in the western States and territories to private acquisition. Upon the enactment by Congress of the Homestead Law these became the goal of the home-seeker. The population of the counties containing the most of these swamp and overflowed lands was sparse and poor. This record illustrates that it was impossible to give them away so as to realize for the public, revenue at the rate of even the fraction of a cent per acre at which it was sought to tax them. Even those who had been so rash and hopeful as to acquire them for a consideration, had joined, like Ringer, in the bread-quest to the more promising fields of the far West. It was under these circumstances that the State entirely abandoned its trust for their reclamation as hopeless, and devoted whatever might be realized from their sale to other public purposes. Some of them were so selected that they were then, or afterward became, readily sale-able, and contributed materially to the educational fund of the counties in which they were situated. Other tracts, like the lands in question, lay buried under a foot or two of water for a half century, awaiting the growth in wealth and practical science which should make them available for the sustenance of the people. During this time the forests of the' country were depleted by fire and axe, and much of this land, like the tract we are considering, became more or less available for timber, and people entered upon it and paid taxes for the purpose of cutting and selling that product. In this particular instance matters have now progressed so far that the means have been found to enter upon a real scheme of reclamation, and thirty-six acres of this tract has been drained of its water and placed in cultivation, and the question is now presented whether those who paid the first consideration are, by law, entitled to the net profits. We have no doubt that the officers of the county have acted honestly, and, in their opinion, for the best interests of the people, in each step they have taken to make these lands useful. In doing this they have caused the legal title to be conveyed to Ringer, who did not live to see the accomplishment of his dream, by a patent founded upon a consideration which we will not only presume but believe to have been the best price which could have been obtained'at the time, and which the county has elected to,keep, rather than to proceed in equity to have the patent set aside on account of any alleged misuse of their powers by the officers charged with its interests. So far as anything appearing in this suit goes, they are still of the same mind, and we will not disturb it for them. The title to this tract remains in Ringer, his heirs and their grantees, unless something subsequent to his patent has occurred to divest it.

III. The deed from the sheriff of New Madrid county to Charles M. Smith dated June 5,1890, offered for that purpose, has no foundation on which to stand. It purports to convey the interest of “L. M. Ringer” against whom, in that name, the judgment for delinquent taxes recited in it was rendered on September 20, 1889, by default. The only notice of the institution of the suit was directed to the defendant by the same name, while the title stood upon the record in the name of Lewis M. Ringer, to whom it had been conveyed by the Eltzroth patent. That the sheriff’s deed was ineffective to convey the title of Lewis M. Ringer has been too often decided by this court to he now disturbed. The curious upon the subject are referred to Stevenson v. Brown, ante, p. 182, decided at the present term, in which the leading cases are collected.

IV. The defendants mildly suggest that this deed has been aided by the operation of the three-year limitation provided in section 221 of the act approved March 30, 1872, “concerning the assessment and collection of the revenue.” [Laws 1872, p. 130.] It is as follows: “Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes (except in cases where the taxes have been, paid or the land was not subject to taxation, or has been redeemed as provided by law) shall be commenced within three years from the time of recording the tax deed, and not thereafter.” They do not rely on adverse possession, but simply on the recording of the sheriff’s deed made in pursuance of an execution sale upon a judgment for taxes under the act relating to the collection of delinquent taxes approved April 12, 1877. In Stevenson v. Brown, supra, Gtravks, J., speaking for this court, said that this section seems to have had a checkered career, and that the learned counsel seemed to have reached the conclusion that there was no merit in the claim under it, and that having abandoned their own offspring it was not for the court to nurture it into life. In Bird v. Sellers, 122 Mo. 23, we held that the section was still in force with respect to deeds executed under the Revenue Law of 1872, but approved our decision in Blodgett v. Schaffer, 94 Mo. 652, that it had no application to a sheriff’s deed under the act of 1877, like the one now before us. This latter proposition is founded on the plain and unambiguous terms of the statute and has been firmly established by the repeated decisions .of this court. [Bartlett v. Kauder, 97 Mo. 356; Burkham v. Manewal, 195 Mo. 500.]

Y. The respondents claim title under the provisions of section 1884, Revised Statutes 1909, prescribing the limitation of thirty-one years for the bringing of any action to recover-the land. It is possible that this point owes much of its force.to the persuasive insistence of respondents that great injustice Would result to __ Mr. Hamilton, who came to our State on the wave of reclamation in 1906 and purchased these lands, by postponing the reward of his enterprise to one whose faith had budded too soon to avoid the frost. "VYe are, however, relieved from much embarrassment in this respect by the fact that it is onr duty to enforce the law, which, in the end, as we are taught to believe, distributes justice more evenly and impartially than caprice.

The section mentioned requires that, in order to perfect its bar, the land should have been in the lawful possession of the person claiming adversely to the legal title for one year, during all of which the claimant may bring his action. The question is, therefore, whether the respondents had been in possession of the land for one whole year prior to the 13th day of July, 1910. It is admitted that they took actual possession at the time or soon after they contracted for the clearing of the land, in December, 1909, so that it is necessary for them to show there was some condition that the law will construe as possession, that is to say, constructive possession before that time. The respondents have attempted to sustain this burden by showing that at sometime before they acquired this tract of 1150 acres, there was a clearing of forty or fifty acres in section nineteen which was fenced and presumably in cultivation. Whether this was done before or after the land came under a single ownership in Mr. Allison in 1902 does not appear, and is not important. Nor does it appear who made the clearing. Section eighteen, a square mile of woods and swamps,intervened between section nineteen and section seven. During the ownership of respondents this old clearing has been occupied and cultivated by a tenant of theirs, but there is no evidence that his control or operations have ever extended outside the limits of his field. Nor does it appear that any use was ever made of the land in question by the respondents except to sell some timber used in building a barge in 1907, and to pasture some cattle. How much of this timber was cut from the land in question, if any, and what cattle have been in that part of the woods does not appear. It does appear, however, that the whole tract was unenclosed timber lands. That these facts are entirely insufficient to constitute such possession as will support the running of the Statutes of Limitation is too well settled upon principle to be questioned and upon authority to be overthrown. Nor do they constitute such possession as would authorize the presumption of notice to the true owner that his possession was interrupted or his title in danger. [Lumber Co. v. McCabe, 220 Mo. 154, 183; Nye v. Alfter, 127 Mo. 529; Pharis v. Jones, 122 Mo. 125; Carter v. Hornback, 139 Mo. 238.]

Nor does the fact of the existence and cultivation of the field in section nineteen tend to transform the acts mentioned into acts of ownership extending the possession of this field over the entire tract purchased by Hamilton in 1906. There is no evidence that the clearing was made by any one under any title including the land in controversy. This plaintiff is claiming’ no title whatever to the land upon which it is situated. Nor does his deed include it, but only includes the tract in section seven. We cannot express ourselves more clearly on this question than by the use of the language of the Supreme Court of Michigan in Turner v. Stephenson, 72 Mich. 409, 411. It said:

“We cannot see how a man, by simply occupying his own land, the title to which is not disputed, can acquire title to another’s land, simply because the deed to the land he occupies covers adjoining land, which he neither owns nor occupies. If so, then the mere recording of a deed would amount constructively to actual possession. The plaintiff in this case, or any 'other person, is not bound to suppose that a man occupying adjoining land to his own is thereby. claiming title to or possession of his premises.”

VI. We do not think the doctrine of laches is applicable to this case. The whole question relating to the loss of the legal title by non-payment of taxes supplemented by adverse possession is covered by the section of the statute we have considered in the last paragraph and we can see no other element of estoppel in this case. [Lumber Co. v. McCabe, supra, and cases cited.]

YU. Respondents suggest that in consideration of the persuasive equities with which they are clothed in this particular case, the trial court should have excluded the certified copy of the record of the Eltzroth patent, because it does not show, by any statement or scroll,'that a seal was attached to the original. It is sufficient to say that the attestation of this instrument states that it is given under the hand and seal, as commissioner, of the special commissioner. It is too late now to disturb the numerous cases which hold this to be a sufficient showing that the instrument was sealed.

For the reasons stated the judgment of the circuit court is- reversed and the cause remanded for such further action as may be necessary to determine the rights of the respective parties upon the principles here stated.

Bailey, G., concurs.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur; Bond, J., in the result.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF MISSOURI, to the Use of HUBBARD & MOFFITT COMMISSION COMPANY, v. MANNING W. COCHRANE et al.; UNITED SURETY COMPANY, Appellant.
    Division One,
    April 1, 1915.
    1. WAREHOUSEMAN: Police Regulation. The business of storing goods for hire embraces the storage of all kinds of personal property, and is public or private, as it may be conducted for the storage of the goods of the general public, or those of certain persons; and as it necessarily affects the public, its regulation is a proper exercise of the police power, and its supervision and control by the lawmaking bodies has become a part of the jurisprudence of the country.
    2. -: Liability. Independent of statutory regulation, a primary obligation assumed by a warehouseman at common law is to return to the holder of his receipt the goods called for by it, upon the payment of charges and its surrender or cancellation. For a breach of that duty an action ex contractu arises to the depositor or his assignee; and for a failure to exercise due care to prevent loss or injury to the goods stored (varying in degree according to the nature of the goods and other attending circumstances) the warehouseman is liable in an action ex delicto.

    3. -: Bond: Valid at Common Law. Whether or not the statutes regulating the inspection of grain stored in a public warehouse and its business are valid, the bond of a surety company executed for a premium, by which it agrees that the warehouseman will “faithfully perform its duty as a public warehouseman, under the laws of Missouri” and “also fully and unreservedly comply with the laws of said State relating . . . to public warehousemen,” is a valid and subsisting obligation at common law, and for a breach thereof by the principal, in failing to deliver upon demand grain called for by a receipt issued by him to a depositor not named in the bond, the surety is liable in damages. The bond is not opposed to public policy, but being voluntary and resting on a sufficient consideration is enforcible as a common-law obligation.
    4. -: -: Surety for Premium. A rigid observance of contracts of indemnity made by corporations licensed to engage in that business for profit, is compelled. Such bonds being given for a gainful purpose (a premium paid), their makers do not fall in the category of sureties for accommodation, who are favorites of the law and are exonerated in all cases where a strict construction of their contract does not bring them within its provisions. The statute estops a duly licensed surety company to deny its corporate power to execute an indemnifying bond for profit or to assume liability thereunder.
    5. --: -: For the Public. A warehouseman’s bond which by its terms expresses an obligation on the part of a surety company to indemnify the public against any default of its principal in the performance of his duties as a warehouseman (assumed for a premium), is a valid common-law obligation, and is enforcible by the legal holder of its principal’s warehouse receipt, who is entitled to sue for a breach of the bond made for his benefit,’ though not named therein.

      6. -: -: Defense Not Pleaded. In a suit on a warehouseman’s bond, the defense that the grain called for by the receipts is in the warehouse or has disappeared by natural shrinkage, is not available unless pleaded.
    Appeal from St. Louis City Circuit Court. — lío». W. B. Homer, Judge.
    Affirmed.

      Ferriss, Zumbalen & Ferriss for appellant.
    (1) So much of the Grain Inspection Law of 1907 (Laws 1907, p. 285) as authorizes the Board of Warehouse Commissioners to establish State inspection and weighing of grain where they see fit, as defines and establishes public warehouses, and as authorizes the inspection of grain not stored in warehouses, is unconstitutional, as being a delegation of legislative power, and therefore is void. Art. 4, sec. 1, Missouri Constitution; Merchants Ex. v. Knott, 212 Mo. 616. Other provisions of said' Grain Inspection Law — including sections 7626, 7627, 7628, 7643 and 7653', providing for license, bond, suit, etc. — which are dependent for their meaning and effect upon those sections which are unconstitutional, share the same fate and are likewise void and without effect. 20 Am. & Eng. Ency. Law, p. 570; State ex rel. v. Nast, 209 Mo. 732; Copeland v. St. Joseph, 126 Mo. 417; Kirkwood v. Highlands Co., 94 Mo. App. 645; Eiccio v. Hobokin, 69 N. J. L. 649; Eedell v. Moores, 63 Neb. 219; Wadworth v. Eailroad, 18 Colo. 600; Hanson v. Krehbill, 68 Kan. 670. (2) Section 1 of the Grain Inspection Law of 1907 repealed in express terms practically all of the former law on the subject, i. e., Art. 3, chap. 117, E. S. 1899 (enacted in 1893, vide, Laws 1893, p. 180). This repeal was effective even though the remainder of the Law of 1907 was void for constitutional reasons. Hence, in February, 1909, there was no valid law in effect. establishing public warehouses, requiring license, bond, etc. Sutherland on Statutory Construction (2 Ed.), sec. 245; State ex rel. v. ■Wardell, 153 Mo. 319; Blankenship v. Frisco, 160 Mo. App. 637; Equitable 0. & T. Co. v. Donahoe, 3 Del. 191; Campan v. Detroit, 14 Mich. 276; Childs v. Shower, 18 Iowa, 272. Even if the repealing clause was ineffective (which we deny), the former law, Laws 1893, p. 180 (Sec. 7623 et seq., R. S. 1899) was unconstitutional and void for the same reasons which vitiate the Law of 1907. Even if the repealing clause of the Law of 1893 was ineffective (which we deny), the original Law of 1889 (Sec. 5607 et seq., R. S. 1889) is not applicable because the Exchange Elevator was not a “public warehouse” as .defined in said original law. State ex rel. v. Smith, 114 Mo. 180. (3) The bond executed by defendants in purported compliance with a void law and conditioned upon an observance of such law is meaningless and without legal consideration and imposes no obligation. Kirkwood v. Highlands Co., 94 Mo. App. 637; Coburn v. Townsend, 103 Cal. 233; Shaughnessy v. Surety Co., 138 Cal. 543; Lumber Co. v. Bibb, 139 Cal. 192; Montague Co. v. Farmers, 145 Cal. 205; Brookman v. 'Hamill, 43 N. Y. 554; Poole v. Kermit, 59 N. Y. 554; Canel v. Scott, 17 Ind. 514; Byers v. State, 20 Ind. 47. Such bond cannot be enforced as a common-law obligation; nor were these suits brought on that theory. State v. Walker, 1 Mo. 546; State ex rel. v. Fraser, 165 Mo. 242; Leona S. M. & C. Co. v. Roberts, 62 Tex. 615; State v: Caldwell, 124 Mo. 509; Oklahoma ex rel. v. Woodring, 1 L. R. A. (N. S.) 848. (4) The Grain Inspection Law is penal in character and where the failure to deliver grain is caused by “natural shortage” of the elevator due to cleaning grain, there is no breach of the bond. (5) The evidence that the Exchange Elevator was run by Cochrane Grain Company for their own convenience and to store their own grain should have been admitted. (6). Assuming the Grain Law to be valid — - the receipts held by plaintiffs representing grain stored by Cochrane Grain Company in their own elevator and delivered to plaintiffs simply as security were not issued in compliance with said law and their dishonor constituted no breach of the statutory bond. Bank v. Bank, 89 Minn. 116; Sexton & Abbott v. Graham, 53 Iowa, 195; Adam v. Bank, 2 Fed. 174. Assuming that the Grain Law is void, and viewing the case as a common-law transaction, the so-called pledges to plaintiffs were never completed by delivery of the things pledged, either actually or constructively. Conrad v. Fisher, 37 Mo. App. 352; Bank v. Taylor, 30 L. R. A. (N. S.) 552, 172 Fed. 177; Bank v. Wilder, 34 Minn. 149; Security W. Co. v. Hand, 206 U. S. 415; Bank v. Whitehead, 39 L. R. A. 725.

      Richard A. Jones and Leahy, Saunders $ Barth for respondent.
    (1) A bond, though voluntary and not authorized by any statute, is good as a common-law bond. All bonds, though voluntary, if they do not contravene public policy nor violate any statute, are valid and binding on the parties to them. United States to use v. Ferguson, 16 Mo. 258; State ex rel. v. Horn, 94 Mo. 162; Henoch v. Chaney, 61 Mo. 129; LaCrosse Lbr. Co. v. Schwartz, 163 Mo. App; 659; State ex rel. v. Williams, 77 Mo. 467; State to use v. Fincke, 66 Mo. App. 238; State ex rel. v. O’Gorman, 75 Mo. 378. (2) Appellant received value for the execution of the bond and the principals in such instrument operated the warehouse described, had grain therein inspected and graded by the State Gtain Inspection Department,- issued warehouse receipts thereon, had them registered by such department and transferred them for value, all in accord with such act. There is no failure or absence of consideration for the obligation in suit, and even though a portion or; all of the act should be declared unconstitutional, this cannot serve to release appellant from its obligation. S.tevens v. Morgan, 67 Neb. 207; Fidelity & Guaranty Co. v. Ettenheimer, 70 Neb. 147; Daniels v. Tearney, 102 U. S. 415. (3) If the whole grain inspection' act had been held unconstitutional and it could be assumed that there is no law in Missouri by which one can be required to take out a license to operate a public warehouse, still a bond voluntarily given conditioned that the obligee shall, in connection with the operation of a warehouse to be conducted by'him, conform to the provisions of such statute is valid and will be enforced. Railroad v. Yoight, 176 U. S. 505'. (4) It may be regarded as now settled that a warehouseman having property of his own stored in his warehouse, may issue receipts therefor and pledge the property as collateral security for his own debt by the delivery of such receipts. Millhaeiser v. Gallago Mills, 101 Va. 590; Bank v. Hibbard, 48 Mich. 123; Bank v. Wilder, 34 Minn. 149; Eggers v. Bank, 40 Minn. 182; Bank v. Bank, 891 Minn. 118; Shepardson v. Carey, 29 Wis. 44; Bank v. Burns, 82 Ala. 615; Broadwell v. Hoard, 77 111. 305; Easton v. Hodges, 18 P'ed. 679; Parshall v. Eggert, 54 N. Y. 18; Bank v. Elevator Co., 9 Kan. App. 144; Colebrooke, Collateral Security, par. 420; State to use v. RobbLawrence Co., 17 N. D. 257. In the case of a public warehouse, the right of a proprietor to issue warehouse receipts against his own property contained therein is, in the absence of statutory prohibition, unquestioned, even as against the right of creditors, for the fact that he is acting in the capacity of warehouseman puts a creditor upon inquiry as to the quality of the title under which he holds property contained in such warehouse. Bank v. Wilder, 34 Minn. 155; Broadwell v. Howard, 77 111. 305; R. S. 1909, sec. 6687.
    STATEMENT.
    The petition in this case alleges in substance that the plaintiff corporation is organized for business purposes in the city of St. Louis; that the defendant Cochrane Grain Company is a co-partnership, and the defendant the United Surety Company is a foreign corporation, licensed to do the business in the State of Missouri of executing contracts of indemnity and bonds and to become surety on such obligations; that on the 26th of February, the Cochrane Company applied to the circuit court of the city of St. Louis for a license to conduct a public elevator for the storage of grain, known as Exchange Elevator, which, application was sustained upon the condition of the execution of said firm of a bond with sufficient surety. The petition alleges that thereupon the said Cochrane Grain Company executed the bond prescribed by the circuit court, which was duly approved on the 26th of February, 1909. Said bond was for the sum of five thousand dollars and conditioned, to-wit:

      Now, therefore, if said licensee shall faithfully perform his or their duties as public warehouseman or warehousemen, under the laws of Missouri, and pay; satisfy or perform any and all penalties, found by due course of law, for the violation of any clause of the statute of said State relating to the inspection of grain and to public warehousemen, and shall also fully and unreservedly comply with the laws of said State relating to the inspection of grain and to public warehousemen, then this obligation shall be void, but otherwise remain in full force.
    Approved in open court this 26th day of February, 1909.
    Cochrane Grain Co.,
    By Manning W. Coohrane, (Seal)
    Manning W. Cochrane, (Seal)
    Thos. Coohrane, (Seal)
    United Surety Co., (Seal)
    G. A. C. Carr, Res. V.-P., (Seal)
    John L. Moore, (Seal)
    Res. Asst. Sec.
    The petition further alleges that the said Cochrane Grain Company has been guilty of a breach of the above bond in this: That in the prosecution of their business as public warehousemen under said license, they made an elevator receipt in due form for 1070 bushels and forty pounds of number S White Corn, thereby acknowledging the receipt of said product and their obligation to deliver upon the due surrender of said receipt; that said receipt in due course of trade was transferred to plaintiff on the 18th of October, 1910, whereby they became entitled to deimand the grain represented by it; that plaintiffs have demanded compliance with the terms of said receipt by the surrender to them of the grain called for, which defendants have refused to make, although plaintiffs have tendered the payment of all charges for the storage of the product represented by said receipt, all to the damage of plaintiffs in the sum of $513.95. Wherefore, they prayed judgment for the penalty of said bond to be satisfied upon payment of said sum of $513.95 with interest.
    The second count of the petition was based upon a similar receipt and the refusal of the defendant to comply with its terms, to the damage of plaintiffs in the sum ,of $927.67. - Similar allegations as to the liability of defendants are'contained in said count, and judgment prayed for the amount of damages therein specified.
    . Manning W. Cochrane filed a general denial. The United Surety Company filed an answer, admitting that a license was granted to the Cochrane Grain Company, as alleged in the petition, admitting that it signed as surety the bond mentioned and set forth in said petition, and further answered that the license and bond were issued and made to comply with the provisions of the Grain Inspection Law of 1907 (Laws 1907, p. 285); that sections 7623, 7625 and 7630 of said enactment are unconstitutional and void, and all other sections thereof depended on these particular sections and are likewise null and void. Wherefore, at the time said license was issued and said bond was executed, there were no valid statutes in Missouri defining a public warehouse for the storage of grain or authorizing the 'circuit court to license a warehouse for the storage of grain for the public or authorizing or requiring a bond to be given by persons desiring to conduct such grain elevator; that there were no valid laws or statutes in force regulating the business or creating any duties of public warehousemen, or relating to the inspection of grain, or authorizing suit by any persons holding elevator receipts upon the bond pleaded in the first count. That for these reasons, the license issued by the circuit court to said Cochrane Grain Company was void “granting no rights to said Grain Company not already possessed by it.” Wherefore, the bond signed by the defendant, the United Surety Company, was without consideration and void, and imposed no obligation upon it. An answer containing similar defenses was filed by the United Surety Company to the second count of the petition. Issue was taken by. reply.
    On the trial it was conceded that the evidence tended to prove the allegations set forth in plaintiff’s petition. It was further shown that the United Surety Company signed the bond in question in consideration of the promise or payment of a premium therefor by the Cochrane Grain Company. The jury returned a verdict for the amount of damages claimed in the second count of plaintiffs’ petition. From a judgment thereon, the defendant Surety Company duly appealed to this court because of the constitutional questions raised in the pleadings.
   OPINION.

I.

BOND, J.

(After stating the facts as above.) — A warehouseman is a person or corporation lawfully engaged in the business of storing goods for hire. The business is public or private, as it may foe conducted for the storage of the goods of the general public, or for those of certain persons. It was a vocation well known, recognized and defined at common law, which also established the rights and duties arising from this form of bailment. It includes the storage of all kinds of personal property-grain, cotton, fruit and other farm products— horses, cattle, hogs and other live stock — goods, and other articles of merchandise — household furniture and effects, as well as valuables kept in safe -deposits. The extent and variety of the business, including within its scope the subjects of the chief industry of the people of the State, as well as the common articles of commerce, early evolved the legal principle that the conduct of this business necessarily affected the public and made its regulation a proper exercise of the police power of the State and Federal Government. [Munn v. Illinois, 94 U. S. 113.]

The doctrine that this calling affects the public interests and hence requires wholesome supervision and control by the. lawmaking bodies has now become a part of the jurisprudence of the country. Independent of statutory regulation, a primary obligation assumed by a warehouseman at common law, is to return the goods to the holder of his receipt upon the payment of his charges and the surrender or cancellation of any written evidence given by him when the property was placed in his custody. For a breach of this duty an action ex contractu accrues to the owner of the goods, or his assignee. The warehouseman also undertakes upon the reception of goods the exercise of ordinary care to preserve them until called for. These terms imply a varying degree of care or diligence dependent upon the nature of the property stored and the exigencies of its proper preservation or any other circumstances attending its custody which would dictate to a prudent person the observance of a degree of care sufficient to prevent loss or injury to the property. For the breach of the duty of due care thus imposed, the warehouseman is liable to an action ex delicto. [Springfield Crystallized Egg Co. v. Springfield I. & R. Co., 259 Mo. 664.]

In order to safeguard the public and to protect the rights of the purchaser, shipper and receiver of the great grain products of the State, the Legislature of Missouri has enacted grain inspection laws designed to secure those ends. In 1907 (Laws 1907, p. 285) the Legislature passed a bill which was pro tanto a substitute for certain sections, embodying the grain inspection laws, set forth in the Revision of 1899. Sections 7623, 7625 and 7630 of this act were held in judgment in the case of Merchants Exchange v. Knott, 212 Mo. 616, wherein it was decided that these particular sections manifested an effort on the part of the Legislature to delegate its faculty of making laws, and hence were invalid under the provision of the Constitution vesting in the General Assembly the sole power to enact laws. The sections thus disapproved, referred to a power delegated to the Board of Railroad and Warehouse Commissioners to establish State inspection and weighing of grain at such places as they might see fit (7623); that all warehouses used for the storage of grain of different owners situated in territory where the board had located grain inspection £ £ are hereby declared public warehouses” (7625); the inspection and grading of grain in the territory thus established (7630). No other section nor provision of the inspection laws passed in 1907 was discussed or passed upon in the case above cited. Neither did the court consider in that opinion any of the sections or provisions contained in the Revised Statutes of 1899, which were unrepealed by the amendments of 1907. The first clause of the amendatory act specified forty-seven sections of the Revision of 1899 relating to the inspection of grain, and repealed them, and enacted in lieu thereof forty-seven other sections containing the same numerals as those repealed. It is insisted for appellant that the ruling adverse to the constitutionality of the three above-mentioned sections of the Act of 1907 caused the whole amendatory act to fail, for the reason that its remaining sections depended for their efficacy upon the three sections which were held to be unconstitutional. It is further insisted for appellant that since the first clause of the amendatory Act of 1907 expressly repealed those sections of the Revised Statutes of 1899 for which others were to be substituted, nothing is left on the statute books relating to grain inspection, except such portions or sections of the revision of 1899 as the amendatory Act of 1907 did not purport to repeal, and hence, when appellant’s principal, the Cochrane Grain Company, applied to the cir- ' cuit court for a license to do business as a public warehouse and executed the bond in suit, it sought and obtained a license which was worthless and gave a bond which was without consideration and void. These premises, and the conclusion deduced therefrom, have been argued with completeness in briefs and ably on the oral argument, when the cause was submitted.

In the view we have taken of this case, it is unnecessary to rule upon the contention which involves the conclusion that the State of Missouri is practically without any grain inspection laws on its statute books, and that its people have been left without the protection which is afforded one of the greatest industries in this State by salutary laws on that subject. In excluding this question from our view, we do not wish to be understood as in any way intimating that the decision in Merchants Exchange v. Knott, supra, affords any basis for an inference of the unconstitutionality of any of the sections of the Act of 1907, except the three particular sections mentioned in that opinion. The learned writer of that opinion carefully confined its ruling to three sections only of the act under review, and to that extent only is it authoritative.

II.

The vital question in this case is whether or not the bond in suit is a valid and enforcible obligation under the principles of the common law. x n T , „ It was executed by appellant for a price paf¿ 0r promised.' The Surety Company desired a premium, and to gain that, executed the bond in suit. It had no relationship to the business conducted by the Cochrane Grain Company and no connection with its occupation other than for an agreed consideration to indemnify the public against the breach of certain duties imposed upon its principal by law.

It entered into that contract without any other coercion than a motive of profit. The italicized conditions of the contract as set out in the statement disclosed an agreement on the part of the signers in substance that the principal will not only comply with the statutory regulations specified in the Act of 1907, but will also comply with the law of Missouri applicable to the calling of a public warehouseman. If no statute had ever been enacted regulating that business, the common-law obligations would still subsist. Hence, if we should concede for the argument only, that all statutory provisions on the subject are at an end, still the duty was imposed upon the principal by the nature of lfis business and his receipt for the goods, to surrender the property upon proper demand, or to show a valid reason for refusal. The fact that the bond in question embodied conditions to comply with the statutory regulations does not prevent the enforcement of other obligations expressed, wMch, though not prescribed by statute, were the common law duties attached to the business of public warehousemen.

It is a settled principle of law in this State that a voluntary bond not opposed to public policy and resting on a sufficient consideration is enforcible or binding as a common-law obligation. [Barnes v. Webster, 16 Mo. 258; State ex rel. Jean v. Horn, 94 Mo. 162; Henoch v. Chaney, 61 Mo. 129; LaCrosse Lbr. Co. v. Schwartz, 163 Mo. App. 659; State ex rel. McKown v. Williams, 77 Mo. 463, 467; State to use v. Finke, 66 Mo. App. 238; State ex rel. v. O’Gorman, 75 Mo. l. c. 378.]

In view of the specific provisions in the bond in question which broadened its obligation, so as to cover any failure on the part of the principal to comply with the laws of Missouri, we see no escape from the application of the rule laid down in the above cases.

III.

Something is said in the briefs and argument about the exclusion of testimony proposed to be offered on the question of whether the grain called for by the receipts sued on was in the warehouse, or whether it had disappeared by natural shrinkage. An examination of the answer does not disclose any defense of that sort. Hence, there was no error in excluding such testimony.

The trend of judicial decision, as well as the object of the statutes, are to compel the rigid observance of contracts of indemnity made by corporations licensed to engage in that business for profit. [R. S. 1909; sec. 1211; Drainage District v. Surety Co., 252 Mo. l. c. 557.] The highest'exponent of the public policy of a State is contained in its statutes. The one above cited estops a duly licensed surety company (as appellant) which has executed a bond, as in this case, “to deny its •corporate power to execute such instrument, or assume such liability.” (Italics ours.) Such surety-ships being for a gainful purpose do not logically fall in the category of sureties for accommodation, who are favorites in the administration of the law, and are exonerated in all cases, where a strict construction of their contract does not bring them within its provisions. [Kuhl v. Chamberlain, 140 Iowa, l. c. 552.]

For the reason that the bond in suit shows on its face terms, involving the assumption of an obligation by the appellant Surety Company, to indemnify the public, against any default of its principal in the performance of its duties as a warehouseman (aside from stipulations to comply with the inspection laws), we think that instrument is a valid common-law obligation and enforceable in this action by the plaintiff, who though not named in the bond, is entitled to sue in the name of the State for the breach of a bond made for ’ its benefit. [Barnes v. Webster, 16 Mo. supra.] The judgment is therefore affirmed.

All concur.


author: WOODSON, J.

text:
    WHITECLOUD MILLING & ELEVATOR COMPANY et al., Appellants, v. W. S. THOMSON, Administrator, et al.
    Division One,
    April 1, 1915.
    1. ADMINISTRATION: Partnership Estates: Priority of Creditors. Tiie claims of general creditors of a partnership estate must be paid out of its assets before debts due by the partnership to one of its members can be paid. Such' preference is given by the common law and ■ the principles of equity, and not by statute.
    2. -: -: -: Classification: At Any Term Within First Year. Under sections 97, 98, 190 and 191, Revised Statutes 1909, all demands pertaining to the fifth class, presented and allowed at any term during the first year, and properly classified as fifth or first-year demands, have equal standing, and none take priority over the others because of priority of allowance, whether presented at the first or fourth term of the probate court within that year.
    3. -: -: -: -: Res Adjudicata. The classification of demands presented and allowed within the first year as fifth-class demands against the partnership estate does not affect the right of such claimants to priority in the distribution of the assets. As between the creditors and the administrator the orders of the probate court allowing and classifying demands are judgments; but as between creditors of the same class, whose demands are allowed within the first year and classified as belonging to the same class, those allowed at the first term are hot entitled to be paid first in preference to other demands presented and allowed at a later term within the first year.
    4. -: -: -: Priority of Payment. Although the claims of general creditors of the partnership and the individual claim of a partner to whom the partnership was indebted, were presented at the first term after the administration began, and'all were allowed and classified as fifth-class demands, and the general creditors took no steps to. have their allowed demands given priority in payment until long after the first year, such general creditors are entitled to priority in payment until the final distribution of the partnership assets, and to be paid before the partner can share in such assets.
    Appeal from Holt Circuit Court. — Hon. William G. Ellison, Judge.
    Reversed and remanded (with directions).

      J. B. Shackelford and H. T. Alkire for appellants.
    (1) No firm member can take anything from an insolvent firm’s estate in process of liquidation until after all of the general firm debts have been satisfied. Lyons, v. Murray, 95 Mo. 28; Ross v. Carson, 32 Mo. App. 148; Funk v. Seehorn, 99 Mo. App. 598; 22 Am. & Eng. Ency. Law (2 Ed.), 195, 196; 30 Cyc. 542. (2) In tbe administration of insolvent partnership and individual estates, the partnership creditors are entitled to priority over the individual creditors of the members of the firm in the partnership assets, and the individual creditors of a member of the firm to priority over the partnership creditors in that member’s individual assets. Ault v. Bradley, 191 Mo. 731; Amer. Big. (Cent. Ed.) 1060’, 1070. (3) The allowance and classification statutes relating to the estates of deceased persons declaring that all ■claims presented during the first year of administration shall be assigned to the “fifth class” of demands (E. S. 1899, sec. 184); and that all claims assigned to the same class shall pro rate (E. S. 1899, sec. 2101), which are simply statutes of orderly and timely procedure, do not contemplate taking from the individual creditors of an insolvent individual estate the right to prior satisfaction given them by the substantive law and compelling them to pro rate with the creditors of a partnership of which the deceased was a member, or vice versa, simply because, all of the claims being presented during the first year of administration, are by force of the statute assigned to the same class. Hundley v. Parris, 103 Mo. 86; Level v. Harris, 24 Mo. App. 461; Ault v. Bradley, 191 Mo. 731; Eogers v. Meranda, 7 Ohio St. 192; Irby v. Graham, 46 Miss. 425; Smith v. Mallory, 24 Ala. 682; Black’s Appeal, 44 Pa. St. 508. That the amount of indebtedness, and not the satisfaction to which a claim is entitled, is the only issue involved in its allowance, is manifest from the form in which the statute requires all claims to be presented and in which every claim against this estate was presented. A simple statement of account with the statutory affidavit attached that the claimant has given credit to the estate for all payments or offsets to which it is entitled on the demand described, and that the bal.ance claimed is justly due, is all that is required by the statute and the form in which every claim against this estate was'presented. No allegation is required or was made in any instance that the claimant was ■or was not a member of the firm. Upon each demand the administrator waived notice. Clearly upon issues thus drawn, the only evidence to be adduced and the only matters to be determined relate to the fact and the amount of the indebtedness after allowance of credits and offsets. As the probate, court may determine these, it allows or disallows the demand whether it be in favor of a member of the firm or of a general partnership creditor. While the doctrine of res judicata concludes all matters raised or which might by reasonable diligence have been raised in a pending controversy and identified with the subject-matter thereof, it does not extend to matters which are not a part of the subject-matter thereof. Donnel v. Wright, 147 Mo. 639; G-arland v. Smith, 164 Mo. 1; Patillo v. Martin, 107 Mo. App. 653; Clemens v. Murphy, 40 Mo. 121; State ex rel. v. Richardson, 82 Mo. 509. (4) At what period in the administration of an estate may the order for priority in payment of demands entitled to such priority' be made? Must it be made at the time of the allowance of each claim; or, if not then considered or made, may it not be made at any time during the administration of the estate, pior to or in connection with an order for distribution, and while all the assets are still before the court for distribution, as was done in the case at bar? We respectfully submit that the probate court’s action in this case was correct. Cases supra, and Jamison v. Wickham, 67 Mo. App. 578; Pierce v. Pierce, 139 Mo. App-. 416; Elstroth v. Young, 78 Mo. App. 655; Aull v. Trust Co., 144 Mo. 13; In re Mc-Cune Estate, 76 Mo. 200.

      R. B. Bridge man, 8am R. Halstead and G. C. Grow for respondents.
    (1) The laws governing ordinary cases of adr ministration are by statute made applicable to administration of partnership estates. R. S. 1909, sec 99; State ex rel. v. Donegan, 12 Mo. App. 190; Barnes v. Stanley, 95 Mo. App. 688; Browning v. Richardson, 186 Mo. 361. The allowance and classification of a demand against a partnership estate, so far as the binding force and effect of that judgment of allowance and classification is concerned, are to be judged by the same rules of law as are applicable to a judgment of allowance and classification in ordinary cases. (2) The unconditional allowance and assignment of respondent’s claim to the fifth class of demands entitled respondent, under Sec. 96, R. S. 1909, to share pro rata with all other creditors of the partnership estate whose demands were assigned to that class. R. S. 1909, sec. 96; State ex rel. v. Smith, 57 Mo. App. 120; Tompkins v. Weeks, 26 Cal. 50; Colton v. Field, 131 111. 398; 18 Cyc. 546; Jenkins v. Jenkins, 63 Ind. 120. (3) The allowance and classification of respondent’s demand was a judgment of a court of record, having all of the binding force and effect of a judgment of any other court of record, and after the time for taking an appeal from the judgment of allowance and classification had passed, that judgment could not be annulled by an order of the probate court postponing the payment of the demand to the payment of all other demands of the same class. R. S. 1909, secs. 198, 214; Miller v. Jennys, 15 Mo. 265; Cooper v. Duncan, 20 Mo. App. 355; Reavis v. Reavis, 135 Mo. App. 199; Jamison v. Wickham, 67 Mo. App. 575; Wilks v. Murphy, 19 Mo. App. 225; Standard v. Lacks, 25 Mo. App. 64; McFaul v. Haley, 166 Mo. 67; Springfield Giro. Co. v. Walton, 95 Mo. App. 532; Rottmann v. Schumucker, 94 Mo. 139; Holt County v. Cannon, 114 Mo. 514. (4) The attempt of the probate court to nullify the judgment of allowance and classification after the time for taking an appeal or vacating the judgment had passed, was an attempt to exercise equitable jurisdiction not possessed by the probate court. R. S. 1909, secs. 220 and 289; Wilks v. Murphy, 19 Mo. App. 225; Matson v. Pearson, 121 Mo. App. 120; Deming Co. v. Webb, 76 Mo. App. 320 ; In re Estate of Glover & Shepley, 127 Mo. 153-; Jenkins v. Morrow, 131 Mo. App. 288; Church v. Mc-Ilhinney, 61 Mo. 540.
   WOODSON, J.

This suit originated in the pro'bate court of Holt county, by the appellants filing a petition therein, the substance of which will presently appear. It involves the question of the rights of the partnership creditors of D. D. Perkins & Co., insolvent, to have their partnership debts paid in full, out of the partnership assets, before the payment of the individual claims of one of the partners against the copartnership.

The probate court decided that the partnership debts must he paid first; and the member of the firm having the individual claim against the firm appealed the cause to the circuit court.- That court reversed the judgment of the probate court .and the partnership creditors appealed to the Kansas City Court- of Appeals. That court, by a divided opinion, reversed the judgment and remanded the cause to the circuit court and ordered it to enter judgment for the partnership creditors. Upon a motion for a rehearing the court adhered to its former ruling; hut afterwards, upon having its attention called to the fact that the amount involved was.in excess of its jurisdiction, it certified the cause to this court for both of said reasons.

The facts of the case are principally of record, and are practically undisputed.

The statement of the facts of the case by counsel are substantially correct, which are as follows:

“This cause originated in the probate court of Holt county, Missouri, upon a petition filed by the general copartnership creditors of the copartnership of D. D. Perkins & Co., praying priority in the payment of their demands over that in favor of the estate of D. D. Perkins, deceased, a member of the firm, out of the partnership assets.

“Briefly stated, the firm of D. D'. Perkins & Company, a copartnership composed of David D. Perkins and Edmund Anibal was, prior to the death of the said Perkins, engaged in the general mercantile business at-the town of Craig, Holt county, Missouri. The firm was dissolved by the death of Perkins on November 30, 1907, and Edmund Anibal, the surviving partner, qualified and entered upon the duties of administration thereof. At the same time and in the same court, W. S. Thomson, the respondent herein, was appointed, qualified and entered upon the duties of administrator of Perkins’ individual estate.

“Shortly thereafter, Edmund Anibal died and R. M. Guilliam and W. J. Randall were appointed by and qualified in said probate court as joint administrators de bonis non of said copartnership estate, and have since been and are now acting in that capacity. And C. W. Anibal was appointed and qualified in the same court as administrator of the individual estate of the said Edmund Anibal.

“Prior to his death, Perkins had paid out of his individual property certain liabilities of his firm in the aggregate sum of $7069.34; and the said "W. S. Thomson, as his administrator, presented and had allowed in the said probate court in favor of Perkins’ individual estate and against the copartnership estate, a demand for reimbursement in the said sum of $7069.34. Said demand and all other demands against said copartnership estate were presented and allowed during the first year of administration, and were by the court assigned, pursuant to the provisions of the individual classification statute, to the ‘fifth’ or first-year class of allowances.

“It was conceded in the trial in the court below that the said copartnership- estate is insolvent, if the claim in favor of the individual estate of the said Perkins is allowed to be prorated therein with those of the general partnership creditors. Suck fact of insolvency is also shown by the probate court records introduced in evidence; for while the report ■ of the administrators under date of March 9, 1910, showing the total amount realized from the entire partnership assets, after payment of certain expense items incurred by them, to he only $11,940.44 (as against $17,-525.60 in allowed claims), had not been filed at the time of the trial, said records did then show that the entire estate was originally appraised at $19,222.67, and that $6905.35 thereof had been sold for only $1795.38, a depreciation from the appraised value of $5109.93, and the sale approved by the court. Supposing the balance of the estate to have realized its full appraised value, the result would give only $14,-112.74, with which to pay $17,525.60 in allowed demands, after payment of all the expenses of administration, court costs and administrators’ fees. But the admission of insolvency dispensed with any further proof thereof.

“So, also, the identity of the David D. Perkins of the copartnership and the David D. Perkins in favor of whose individual estate the claim in the sum of $7069.34 was allowed against the partnership estate, was also conceded at the trial, and fully established by the records and papers introduced in evidence.

“Said records also show that both of the individual estates of the said D. D. Perkins and the said Edmund Anibal are also insolvent.

“So that, all three of the estates, the copartnership estates of D. D. Perkins & Company and the individual estates of both of the members thereof, D. D. Perkins and Edmund Anibal, are insolvent and pending in administration before the same court, the assets of each to be distributed among its creditors in such order and proportion as they may be entitled thereto under the law, and as may be directed by appropriate orders of court.

“The question of priority in payment from the firm assets as between the demands of the general partnership creditors and that in favor of the firm member, was not at the time of allowance and classification raised or presented to the court,' and the court did not then rule thereon, unless the fact of the allowance and the assignment of the claim to the fifth class of themselves constituted an adjudication of said priority. The court then simply allowed all the demands, because it found them all to be debts owing by the estate; and assigned them all to the ‘fifth’ or first-year class of demands, endeavoring to follow the provisions of the classification statute relating to estates of deceased persons and requiring all claims presented during the first year of administration to be assigned to the fifth class. No appeal was taken from such allowance and classification, and the question of the right of prior satisfaction in favor of the general firm creditors from the firm assets, was by these pending proceedings for the first time in this case presented to and specifically ruled upon by the court.

“There has been no distribution or previous order for distribution of any part of the copartnership estate or of either of said individual estates, and the whole of each is now in the hands of the administrators thereof, respectively, awaiting distribution among the allowed claims against each in such order and proportion as may be directed by the court.

“Upon the facts thus presented the probate court sustained the prayer of the petition and ordered that, in the distribution of said assets, the claims of the general partnership, creditors have priority over that of the firm member; but, upon appeal to the circuit court, that court, upon authority of Cooper v. Duncan, 20 Mo. App. 355, reversed the ruling of the probate court and ordered that the claim in favor of the firm member be allowed to probate in the firm assets along with the general firm creditors. From this ruling of the circuit court this appeal is taken.”

The record further shows that at the January term, 1908, of said probate court, the individual claim of Perkins’s estate against the partnership estate of D'. D. Perkins & Co., was allowed for the sum of $7069.34 on February 11, 1908', and assigned to the fifth class.

That at the same term of said court the claim of Hundley Dry Goods Co. for the sum of $1453.43, that of Symms Grocery Co. for $1428.45', and that of White Cloud Milling & Elevator Co. for $598.14 were allowed by said court against the partnership estate of D. D. Perkins & Co. and assigned to the fifth class, all of which was done during the first year of the administration of the partnership estate.

That the petition of the partnership creditors asking the probate court to order the partnership debts be first paid, was not filed therein until the 18th day of December, 1909, about eighteen months after their claims had been allowed and classified, and after the lapse of some four or five terms of that court.

There is but one legal proposition presented by this record for this court to determine. Counsellor appellants contend and respondents concede that under the repeated rulings of this court, the partnership debts must be ’ / , -,. , , paid out of the partnership' assets before the debts due by it to one of the members thereof, can be lawfully paid. That rule has been announced in the following cases: Lyons v. Murray, 95 Mo. 23, l. c. 28; Ross v. Carson, 32 Mo. App. 148; Funk v. Seehorn, 99 Mo. App. 587, l. c. 598 ; 22 Am. & Eng. Ency. Law (2 Ed.), 195 and 196; and 30 Cyc. 542.

If this case turned solely upon the rule of law just announced we would be compelled to decide it in favor of the appellants without further ado; but counsel insist that the appellants are estopped from invoking that rule in this case, for the reason that the matter has been adjudicated.

Counsel for respondents state their position regarding the adjudication of the matter in substantially the following language:

The probate court is a court of record and when it has acquired jurisdiction of a cause and rendered judgment therein, its judgment is final and stands precisely upon the same ground as do judgments of the circuit court, and if not appealed from within the statutory period (which is during the term of the court, at which the judgment is rendered, or within ten days thereafter by residents of the county and twenty days thereafter by nonresidents thereof) then they cannot be impeached except for fraud, etc.; and according to that rule the judgment of the probate court of Holt county, rendered at the January term thereof for the year 1908, allowing and classifying appellants’ claims, not having been appealed from within twenty days after the January term, 1908, thereof, became final; and the fact that Perkins was one of the copartners is no reason for disturbing the judgment or any part thereof, eighteen months after the judgment was rendered, and after the lapse of some six or seven terms of that court.

We are cited in support of this position the following cases: Cooper v. Duncan, 20 Mo. App. 355; Reavis v. Reavis, 135 Mo. App. 199; Moody v. Peyton, 135 Mo. 482.

It cannot be gainsaid that a final judgment of a probate court is as conclusive and binding when unappealed from as that of the circuit court. In fact, I do not understand counsel for appellants to controvert that proposition. Their contention is that the order of the probate court allowing and classifying demands against partnership estates, as between the creditors of the estate, is in no sense res adjudicata. Their contention is that the winding up and settlement of partnership estates in the probate court, like individual estates, is a proceeding in the nature of a proceeding in rem. That is, a distribution of the partnership assets among the partnership creditors in the proportion that their respective claims bear to the sum total of the partnership assets; and in order to accomplish that end justly, public.notice, not individual service, must be given of the proceedings, as required by statute, in order that the various creditors may have an opportunity to present and prove up their claims, which under section 97, Revised Statutes 1909; must be done within one year, and under paragraph five of section 190-, Revised Statutes 1909, within one year, and if not presented within two years they are forever barred by section 191, Revised Statutes 1909.

Counsel for appellants, under the authority of said sections 98 and 190, had one full year within which to present and prove up their claims; and, therefore, it was optional with them when they appeared, just so it was within one year,- provided they wished to get their demands assigned to the fifth class of claims.

There are four terms a year of the probate court of that county, and I believe for the year of 1908 there were the January, April, July and October terms; and appellants had the legal right to present and prove their claims at any one of those terms they deemed proper, whether the first or last, or at either of the other two. Had they appeared at the last term of the court and then proven up their claims they would have stood upon precisely the same footing and equality as though they had proved them up at the first term of the court, as they in fact did; nor would their rights have been affected by the fact that respondents proved up their claims at the first term, as they did.

There is no question but what that contention is true, because the statute in express terms provides that all claims of this character presented and proven during the first year shall be assigned to the fifth class and paid equally in proportion, etc.

Predicated upon that incontestable legal proposition, counsel for appellants insist that the very nature of the allowances made and the period of time in which they may be presented conclusively show that the term of the court at which the claims are allowed cuts no figure whatever as to the character of the claims, nor as to their priority or equality, those matters being controlled by the year in which they are presented and allowed, and therefore the orders of the probate court allowing and classifying demands against estates have but little, if anything, in common with judgments rendered by the circuit court. That there the character as well as the priority of the judgment is established at the term of the court at which it is rendered, and not by the year. We fully agree with this insistence, as between the same class of demands against an estate.

From this it is apparent that if respondents’ contention is sound, then, as in their case, where they proved up their claims during the first or January term, 1908, of the probate court, their judgment would and did become final and incontestable as to classification ten days after the lapse of that term, even as against those who were not required by the notice of publication to appear or present their claims for allowance before the beginning of the fourth, the October term, 1908, of said court, there being four terms of said probate court each year. This contention of respondents receives support from neither the letter nor spirit of the statute.

It would be folly for this court to hold that the law imperatively required the appellants to appear and appeal from each and every claim allowed against the estate, though unjust they may be, during the three first terms of the court, from three to nine months prior to the time allotted them to appear, and present their claims, which alone gives them standing in the court for any,purpose.

If respondents ’ construction of the statute regarding the allowance and classification of claims against partnership estates is correct, then, in my opinion, such statute would clearly be unconstitutional, null and void, because it would take appellants’ property from them without due process of law.

In my opinion those statutes mean just what the plain language thereof states, namely, that as between tbe creditors and the administrator of the estate, the orders of the probate court allowing and classifying demands against an estate are judgments, the same as any judgment rendered by the circuit court, but not so as between creditors of the same class, regardless of the term at which their claims are allowed, provided they are allowed during the first year.

Those statutes have nothing whatever to do with the rights of partnership creditors to have their claims paid first out of the partnership assets. Those matters are governed entirely by the common law and principles of equity, as is conclusively shown by the numerous cases decided by this court and courts of other States, cited by counsel for both parties. Not a case to the contrary has been cited or can be found in the absence of an express statute to the contrary, and I have been unable to find such a statute.

From the foregoing observations it seems clear to me that until final distribution has been made of the assets of a copartnership, there being no final judgment as between themselves, as previously shown, that is, those belonging to the same class, it is never too late to move the court to order the administrator to pay the allowances according to priority of right and equity, to have the assets applied to the payment of their claims.

And-this conclusion is in no manner weakened or changed, by the principle of law advanced by counsel for the respondents to the effect that appellants should have appealed from the order of the probate court placing their claims in the fifth class, without giving them preference over individual claims, for two reasons; first, for the reason that (while in this particular case the appellants had time ' to appeal because their claims, by chance, were allowed at the same term of court, at which respondents’ claims were allowed) but that does not change the rule of law contended for, because had they been presented at any one of the other three terms in that year, which they had a perfect legal right to do — as much so as at the first term — they would not have had the time in which to have taken an appeal for the reasons (according to respondents’ own contention) if true, an appeal would not lie from the order allowing and classifying claims unless taken at the term at which the claim was allowed or within ten days thereafter ; and, second, for the reason that even though an appeal should have been taken and successfully prosecuted, appellants’ and respondents’ claims would still have been assigned to the same — the fifth — class, and there is no statutory law that we have been cited to, wliich authorizes the court to give certain claims of the fifth class or of any other class for that matter, preference over certain other claims of the same class. That preference is given by the common law and the principles of equity. [Hundley v. Farris, 103 Mo. 78, l. c. 86; Level v. Farris, 24 Mo. App. 445, l. c. 461; Ault v. Bradley, 191 Mo. 709, l. c. 731; Rodgers v. Meranda, 7 Ohio St. l. c. 292; Irby v. Graham, 46 Miss. 425; Smith & Co. v. Mallory, 24 Ala. 628; Black’s Appeal, 44 Pa. St. 503.]

And it must necessarily follow from the rulings in these cases that the principles before stated regarding the administration of partnership estates must and do apply until final distribution of the assets is made in such eases.

Entertaining these views we are of the opinion that the judgment should be reversed and the cause remanded to the circuit court with directions to enter judgment for appellants, as prayed for by appellants, • and as adjudged by the probate court, and to certify the judgment to the probate court in the manner provided for by statute, 'in such eases.

All concur; Bond, Jin the result.