author: RO'Y, C.

text:
    HENRY P. P. BROWN et al., Appellants, v. WILLIAM A. HOWARD et al.
    Division Two,
    March 30, 1915.
    1. TENANCY IN COMMON: Purchase of Outstanding Title: Election. A tenant in common who has elected to repudiate any share in an outstanding title acquired hy a cotenant is bound by that election and cannot afterward assert rights inconsistent therewith.

      2. -: -: --: Assertion of Inconsistent Rights. Even though it be conceded that when the husband of a tenant in common buys an outstanding title he holds the title in trust for the cotenants, yet where an heir, in a prior suit concerning lands included in his decedent’s estate, has claimed adversely to the outstanding title which the husband of another heir had bought in, he will not be heard in a subsequent suit to assert an interest in the title held by the husband.
    3. TRUSTS: Repudiation: Subsequent Attempt to Enforce. After having repudiated a trust agreement concerning land by claiming outside of and adverse to its terms in one action, a party cannot in a subsequent action assert an interest thereunder.
    Appeal from Buchanan. Circuit Court. — Ron. W. K. Amick, Judge.
    Aegtembd.

      C. W. Meyer for appellants.
    (1) The trust agreement pleaded and proved by plaintiffs is valid and binding: (a) Because'of the ■decisions in Howard v. Brown, 197 Mo. 36 and 52. (b) B'ecause nothing has been shown that cancels, ■destroys or abrogates it. (c) It is not pretended that it has been carried out. (d) There is no provision in it requiring any of the parties to quitclaim their interest to anyone except on agreement and written request, and no such written request or agreement was .shown. (2) Respondents are estopped from setting up any repudiation or abrogation of this agreement because: (a) They pleaded and relied on said agreement in Howard v. Brown, (b) They cannot be permitted now to take a position inconsistent with that which they took in the case just mentioned. Green v. St. Louis, 106 Mo. 454; Coney v. Laird, 153 Mo. 408; Kennedy v. Bambrick, 20 Mo. App. 257. (c) It is not claimed by respondents that any acts or words of repudiation were done or said since 1903, the time when the cases of Howard v. Brown, were instituted, (d) There is no evidence of attempted or alleged repudiation since 1903, the year when "William A. Howard specifically pleaded it. (e) Respondents themselves acknowledged a copy of it, June 20', 1900, and soon afterward filed it for record. (3) Respondent "William A. Howard, by the purchase of the property mentioned in said trust agreement at trustee’s sale, became trustee of a resulting trust, and a resulting trust was thereby created in favor of the parties and beneficiaries of said trust agreement in conformity with its terms and provisions. (4) The trust agreement having been held valid as to the avenue property in Howard v. Brown, supra, the same reasons, facts and principles must make it valid as to the Market Square property.

      William E. Stringfellow for respondents.
    (1) The question whether the trust agreement was alive or dead at the time the property was purchased by William A. Howard not having been in controversy in the former suits, was not adjudicated in the former suits and was a proper subject of inquiry in the case at bar. Baker v. Lane, 137 Mo. 682; Gwin v. Waggoner, 116 Mo. 143; Garrett v. Greenwell, 92 Mo. 120; Spradling v. Conway, 51 Mo. 51; Dickey v. Heim, 48 Mo. App. 114; Winhim v. Kline, 77 Mo. App. 36; 23 Cyc. 1311. (2) There is no evidence in this case to justify the declaration of a resulting trust. Evidence to establish a resulting trust must be so clearj strong and unequivocal as to remove from the mind of the chancellor every reasonable doubt as to the existence of the trust. Reed v. Sperry, 193 Mo. 167; Burdett v„ May, 100 Mo. 13.
   RO'Y, C.

This is a suit begun September 15, 1909, to compel an accounting by the defendant William A. Howard as trustee of real estate. The finding and judgment were for defendants and the plaintiffs have appealed.

George W. Brown died in 1875 the owner of the east 20 feet of lot 1 and the east 20 feet of the south 16 feet of lot 2 in block 30 in the city of St. Joseph, on which there was an old two-story business house. It is hereafter called the Market Square property. He also owned lots 4, 5, 6 and 7 in block 1 in Landis & Hull’s'addition to said city. The Market Square property was encumbered for $3000 at 10 per cent. He left a will which was admitted to probate and read in evidence, but it in no way affects the issues herein. For convenience we shall consider the case as though he died intestate. After the death of George W. Brown the incumbrance on the Market Square property was foreclosed by suit against the heirs of B'rown and the property sold under that proceeding to Parmelia J. Brown, a daughter of the deceased, on March 11, 1875.

On-September 10, 1888, Silas Woodson acquired the title to said lots 4, 5, 6 and 7 at a sale under a proceeding against the widow and heirs of George W. Brown, foreclosing the lien of a special tax bill for street improvements, and on September 25 following Woodson conveyed the lots to Parmelia J. Brown, who executed a deed of trust to Hoagland on the Market Square property to secure $3000 at 9- per cent, and another to the same party on lots 5, 6 and-7 to secure $1160 at 8 per cent. She died in 1896, intestate and without issue. Her heirs were her mother, Mary A. Brown, her brother, the plaintiff Henry P. P. Brown, her sisters, Evelyn Knapp and Ellen Howard, wife of her codefendant herein, and her nephew Paul Floyd, only heir of a deceased sister of Parmelia J. Brown.

Demands amounting to $1010.49 were allowed against the estate of Parmelia J. Brown, of which $912.65 was held hy the defendant William A. Howard. There were no personal assets in the estate. The probate court made an order to sell all the real estate to pay debts. Under that order all the property except said lot 4 was sold and conveyed to 0. A. Shoup, who paid $110 for the Market Spuare property, and the same amounts for lots 5, 6 and 7, all subject to the incumbrances. Following that sale, most of the heirs consulted together for the purpose of setting aside the sale to Shoup' and saving the property as far as possible to the heirs. In those negotiations Henry P. P. Brown claimed that there were defects in the publication of notice against him in the various proceedings under which his sister claimed title to the property, and that, hy reason of those defects, she had never acquired the interest inherited hy him from his father. As a result of those negotiations all those heirs except Mary A. B'rown and Paul Floyd became parties to the agreement of December 19', 1899, which is set out in haec verba in Howard v. Brown, 197 Mo. l. c. 42 et seq. That agreement provided that John G-. Howard (a brother of William A.) should take title to the property from Shoup and hold it in that trust for said heirs and sell, it on their written request; that the proceeds should he applied, first, to the payment of the incumbrances, then to the payment of William A. Howard’s demands against Parmelia’s estate, the expense of tax deed to Mrs. Grace Brown (the wife of Henry P. P.), and the expense of getting deed from Shoup, including the expense of contesting the sale, and attorney’s fees.

It was thereby provided that the surplus after such payments was to be divided among the heirs, Henry receiving one-eleventh of said surplus in excess of what the others were to get. While it was not so stated in the agreement, said extra allowance was made to Plenry by reason of the fact that he claimed as above stated that his sister had never acquired his interest in the property.

Soon after the making of that contract, John G. Howard acquired the title of Shoup, which did not include lot 4. The deed from Shoup- to John G. Howard did not designate him as trustee, but purported to be a simple conveyance of the legal title to him.

As near as can be ascertained from the evidence,, defendant William A. Howard paid $335 and Henry P. P. Brown paid $75 to procure the deed from Shoup to John G. Howard.

On April 21, 1900, Henry P. P. Brown and wife, Evelyn Knapp and Mary A. Brown brought suit against John Ploward and Ellen Howard charging that, in violation of said agreement, John G. Howard had taken the title in his own name and not as trustee, and seeking to have the title vested in the plaintiffs in that suit. That suit was dismissed by the plaintiffs therein on June 16-, 1900.. John G. Howard testified in this suit that after that, suit was brought he talked with Henry Brown about it, and that Henry said, “Well, Mr. Howard, I find no fault with anything you have done, but I have been consulting a lawyer, and I have made up my mind that my little one-eleventh share in that estate is worth more than I will get out of it any other way, and I am not going to do what I agreed to do with you and I am going to have you deed the place back to. theBtrown heirs.” Both John G. Howard and William A. Howard testified that they made an effort to secure-an extension of the loans on the land at a cheaper rate of interest and were not able to do so becauseHoagland had heard that Henry Brown was making-claim to an outstanding interest in the land, and would not extend the loan unless Henry would release such outstanding interest, which Henry refused to do.

On June 17, 1901, in some litigation between the parties, the nature and result of which are not herein disclosed, the deposition of Henry P. P. Brown was taken and read in evidence in this case, in which the following occurred:

“Q. Did Mr. John Gr. Howard ever ask you to sign a quitclaim deed pursuant to the agreement of this contract for the purpose of trying to procure a loan? A. No, I never had any contract. He asked me to give them one.

“Q. Did he ever ask you to give him a quitclaim in order to fix up this title to try and borrow money at a lower rate of interest than they were paying Mr. Hoagland? A. Yes, he asked me to give him a quitclaim.

“Q. What was you answer? A. That if I wanted to borrow any money on it, I could mortgage my own interest.

“Q. Did Mr. Howard at that time tell you that unless they fixed up the title, Mr. Hoagland would sell it out? A. No, he did not. He told me they would show Mr. Hoagland.

“Q. Which was talking? A. William A. and John G-. Howard.

“Q; What did you tell then? A. I told them there was nothing against my property and that I could mortgage my own property if I wanted to. I did not want to give it away. ’ ’

On May 24, 1900, Hoagland foreclosed his deeds of trust by having sales made by the trustee, and William A. Howard became the purchaser of the Market Square property for $3215, and of said lots 5, 6 and 7 for $1530, and received the trustee’s deeds therefor. On May 20, 1902, William A. Howard acquired title to said lot 4 at a sale by tbe administrator of Parmelia J. Brown’s estate for $200.

Tbe defendant in the deposition above mentioned testified in effect that the Market Square property was sold to Shoup for its full value.

The evidence of several real estate men who testified for defendants tended to show that defendant William A. Howard paid full value for lots 5, 6 and 7.

Defendant Henry P. P. Brown in his deposition claimed that lots 5, 6 and 7 were worth much more than was paid for them by William A. Howard, but he said that they were appraised for sale by the administrator at $20' a foot. It appears from the evidencé that the lots had a frontage of 25 feet each.

A short time after his purchase of the outstanding titles to the property, William A. Howard began two suits against Henry P. P. Brown, one to quiet title to said lot 4, decided by this court June 19, 1906, reported in 197 Mo. 36; and .the other to quiet title to said lots 5, 6 and 7, which is reported in 197 Mo. 52. Those cases as thus reported were read in evidence in this case by the plaintiff's, and reference is here made to them for the facts contained in them and for the result therein reached.

The answer in this suit states that prior to the purchase of the land by William A. Howard, Henry P. P. Brown had repudiated said trust agreement and claimed an outstanding interest in the land. It also alleges the expenditure of large sums by defendant for repairs and insurance on the property.

The evidence for defendant shows that William A. Howard paid about $900' for repairs on the Market Square property. The evidence for the plaintiff was that such repairs did not exceed about $400.

The reply herein contains the following:

“For further reply plaintiffs state that William A. Howard, defendant herein, did on the 25th day of June, 1903, file a reply in each of two causes of action instituted by him in tbe circuit court óf Bucbanan county, Missouri, against Henry P. P. Brown and Grace Brown, plaintiffs herein, entitled and numbered 12312 and 12313 respectively; that said defendant, "William A. Howard, set up in said replies the trust agreement pleaded in plaintiff’s petition and made said trust agreement a part of said replies; that defendant, William A. Howard, in the suits aforesaid, treated said trust agreement as a valid subsisting contract; that evidence was introduced by said defendant, William A. Howard, in said suits regarding the execution, force and effect of said contract and the circumstances under which it was made; that defendant, William A. Howard, asserted his rights thereunder and accepted the benefits of said contract; that all this occurred long subsequent to the time defendants allege plaintiffs repudiated said trust agreement and that defendants are estopped to deny or repudiate said trust agreement or to maintain that plaintiffs repudiated said contract.”

There are many questions raised by the briefs of counsel in this case, but it is only necessary to decide one point. We will concede, with-011t deciding, that the husband of a cotenant who buys an outstanding "title holds that title for the benefit of those cotenants who elect within a reasonable time to pay their part of the cost of acquiring such title. After the acquisition of the outstanding title by William A. Howard the parties to the trust agreement were driven to their election within a reasonable time either to adopt the purchase made by him and contribute their portion of the expense of such purchase, or to repudiate such purchase. [Freeman on Cot. and Par., sec. 154; 38 Cyc. 40; 17 Am. & Eng. Ency. Law, p. 679; Nalle v. Parks, 173 Mo. l. c. 626.]

The reports of the cases in 197 Mo., pages 36 and 52, to which reference is above made, were made a part of this case by the pleadings and evidence. Prom them it appears that in those cases Henry P. P. Brown claimed title outside of and adverse to the trust agreement and adverse to the title purchased by William A. Howard. Such conduct certainly amounted to an election not to claim any interest in the title purchased by William A. Howard. That election once made is final. The Cyclopedia of Law and Procedure, vol. 15, p. 262, says:

“An election once made, with knowledge of the facts, between coexisting remedial rights which are inconsistent is irrevocable and conclusive, irrespective of intent, and constitutes an absolute bar to any action, suit or proceeding based upon a remedial right inconsistent with that asserted by the election, or to the maintenance of a defense founded on such inconsistent right. ’ ’

Appellants contend that in the former cases between the same parties above alluded to the validity of the trust agreement was adjudicated and established. Those opinions of this court on that point are free from uncertainty. They establish the fact that such agreement was executed, but they expressly refrain from deciding what if any rights or obligations existed between the parties under that contract at the time of the trial of those cases. We ■ are now deciding that point for the first time, and we hold that by his contention made in the former cases Henry P. P. Brown made a final and irrevocable election which precludes him from any right to participate in the title purchased by William A. Howard.

The judgment is affirmed.

Williams, C., concurs.

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

All the judges concur.


source: Caselaw Access Project

author: PARIS, P. J.

license: Public Domain

text:
    ALBERT COLLINS v. MAX ANDRIANO, Appellant.
    Division Two,
    March 30, 1915.
    1. EJECTMENT: Description of Land. The petition in ejectment must describe the land so definitely that the officer who executes the writ of possession will know to what land plaintiff is entitled.
    2. -: -: Insufficiency Cured by Statute of Jeofails. The Statute of Jeofails will not cure a defective description in a petition in ejectment so lacking in certainty as not to describe comprehensively any land, even though an attack on its sufficiency is not made until after judgment for plaintiff,
    3. -: -: -: This Case. A petition in ejectment alleging plaintiff is the owner of “Lot 23 and the east ten feet of Lot 22” in a certain block and city, and that “defendant entered into said premises and took possession of a strip off of the N. 50 feet of the west eighteen inches of same,” is too uncertain to support a judgment, it being impossible to say to what the word “same” refers, or from which lot the “same” is to be taken, or the width of the strip which is to be carved “off of the N. 50 feet of the west eighteen inches of same”; nor, even though an attack on the sufficiency of the description was not made until after judgment, is its insufficiency cured by the Statute of Jeofails.
    4. -: -: Aided by Abandoned Petition. An abandoned petition is no longer a record matter, but only evidentiary, ordinarily available only to the defendant as an admission. To be considered on appeal it must have been offered in evidence at the trial and preserved in a bill of exceptions, and if there is no bill it cannot avail to aid the defective description in the amended petition.
    Appeal from Buchanan Circuit Court . — Hon. W. R. Amick, Judge.
    Reversed and remanded.

      Vinton Pike for appellant.
    (1) By the statute (Sec. 2387), as well as by general rules of pleading, plaintiff was required to describe the premises he seeks to recover possession of. Livingston Co. v. Morris, 71 Mo. 603; Brieken v. Cross, 140' Mo. 166. In territorial measurement “strip” implies a piece of land having more length than breadth. This description is no better than “all that part of the east half . . . containing sixteen acres, more or less.” County v. Morris, 71 Mo. 603. The petition describes nothing. Kyser v. Cannon, 29 Ohio St. 350. Is fatally defective. White v. Hapeman, 43 Mich. 267; DeClemente v. Winstanley, 28 N. Y. Supp. 513. (2) The land described in the verdict cannot be the equivalent of that in the petition, for the latter describes nothing. “Lands sued for” is surplusage, because the particular description following is complete without it and is unaffected by it. The-fence is a monument on the ground, but it may be outside what was intended by “strip.” The “southeast corner of the house” may also be outside, and 75 or 100' feet south of the North boundary of the “west eighteen inches,” which may or may not be identical with the “front of the yard.” Speculation as to want of identity between “strip” and the ground described in the verdict may be persued indefinitely. Smith v. Jenks, 10 Serg. & R. 153; Harrisburg v. Crangle, 3 W. & S. 462; Huxxt v. McFarland, 38 Pa. St. 69; Nolan v. Sweney, 80 Pa. St, 77; Load v. Philips, 36 Tenn. 566; Bradford v. Sneed, 56 So. (Ala.) 532j. Munger v. Grinnell, 9 Mich. 544; Miles v. Knott’s. Lessee, 12 Gill & J. 442; McCullough v. Railroad, 106 Ga. 275; Abbott v. Roach, 113 Ga. 5101. (3) The “surveys” of Floyd axxd Van Natta are not monuments on the ground. Hahn v. Cotton, 136 Mo. 224. Clearly they did not mark the line; for, if so, the jury would have referred to the marks. This part of the verdict means no more than “the line testified to by Floyd and Van Natta, or by others as having been run by them.” If Floyd and Van Natta made a diagram of their surveys it is no part of the record or files in tlie case, nor of the deed, or any record of the county. This point has been many times before the courts, and ruled with the defendants. Smith v. Brotherline, 62 Pa. St. 47Í; Stewart v. Speer, 5 Watts, 79; Martin v. Martin, 17 S. & R. 431; Hagey v. Detweiler, 35 Pa. St. 409; Railroad v. Jordan, 87 Cal. 23; Alexander v. Wheeler, 69 Ala. 342.

      William E. Stringfellow for respondent.
    (1) A general description of land in a petition in ejectment is sufficient foundation for a definite verdict. 15 Cyc. 93; Barclay v. Howell, 6 Peters (U. S.), 498; R. S. 1909, secs. 2387, 2388. (2) Any indefiniteness in the petition was cured by the verdict. There was no necessary averment omitted from this petition. It set out fully all necessary averments to make a cause ■of action. The fault, if any, is merely that the land was not described definitely enough, (a) If the defendant had desired the land sued for to be more definitely described, he should have filed a motion to make the petition more definite and certain. Cockrell v. Stafford, 102 Mo. 57; Macadam v. Scudder, 127 Mo. 345; Ball v. Neosho, 109 Mo. App. 683. (b) A petition which states a cause of action defectively is good .after verdict. Bank v. Leyser, 116 Mo. 73; Hurst v. Ashgrove, 96 Mo. 173; Young v. Prentice, 105 Mo. App. 565; Robinson v. Life Ins. Co., 105 Mo. App. 571; Scannell v. Transit Co., 103 Mo. App. 513; Thomasson v. Ins. Co., 217 Mo. 485; Nowell v. Mode, 132 Mo. App. 232; Optical Co. v. Richards, 62 Mo. App. 408; Murphy v. Ins. Co., 70 Mo. App. 78; Jones v. Philadelphia, 78 Mo. App. 296; Hitchings v. Maryville, 134 Mo. App. 712; State ex rel. v. Reynolds, 137 Mo. App. 261; Wilson v. St. Joseph, 139 Mo. App. 557; 31 Cyc. 766; Doherty v. Kansas City, 105 Mo. App. 173. (c) A verdict or judgment will cure substantial as well as formal defects. 31 Cyc. 768; Bank v. Leyser, 116 Mo. 51; Spurlock v. Railroad, 93 Mo. 537; Wilcoxson v. Darr, 139 Mo. 675; Smith, v. Smith, 201 Mo. 533; Grove v. Kansas City, 75 Mo. 672; State v. Webster, 53 Mo. 135; Elfrank v. Seiler, 54 Mo. 134; State v. Cowell, 125 Mo. App. 348; Ball v. Neosho, 109 Mo. App. 683; Robinson v. Ins. Co., 105 Mo. App. 567. (d) A verdict cures a defective description of property. 31 Cyc. 764, 767; Richardson v. Farmer, 36 Mo. 44; Garth v. Calwell, 72 Mo. 22; Hernán v. Allen, 156 Mo. 537, affirmed in 81 U. S. 402. (e) When the description of land in a petition in ejectment is not sufficiently definite, the jury should definitely describe the land found for plaintiff. Hunt v. McFarland, 38 Pa. St. 69; Black v. Black, 74 Fed. 978. (f) Error not affecting the substantial rights of the parties should be ignored. Pomeroy v. Benton, 57 Mo. 550; Nolan v. Railroad, 250 Mo. 602. (3) The verdict is good. The jury found definitely for the possession of a three-cornered strip which they bound on one side by the west side of plaintiffs’ property, on the second side by the fence erected by defendant Andriano on plaintiffs ’ land, and on the third side by the front of the yard. These bounds are perfectly definite and clear. The last part of the verdict, “as shown by the surveys of William H. Floyd, Jr., and George S. Yan Natta,” is surplusage. Muir v. Meredith, 82 Cal. 19; Kouns v. Lawall, 5 Ky. 236; Lemon v. Hartsook, 80 Mo. 22. (a) Description by lot and block is sufficient. Alexander v. Campbell, 74 Mo. 142; Ramsey v. Henderson, 91 Mo. 560; Hope v. Blair, 105 Mo. 85; Taylor v. Railroad, 163 Mo. 183; Tettley v. McElmurry, 201 Mo. 382; Summett v. Summett, 208 Mo. 501; Mulligan v. Fritz, 226 Mo. 189; Prior v. Lambeth, 78 Mo. 538; Mulherin v. Simpson, 124 Mo. 611; Clark v. Bettelheim, 144 Mo. 258; Granby M. & S. Co. v. Davis, 156 Mo. 422; Lane v. David, 172 Mo. 167; Brooks v. Gaffin, 196 Mo. 351; Stumpe v. Kopp, 201 Mo. 412; Crossett v. Ferrell, 209 Mo. 704. (b) That is certain which can be' made certain. If there can. be any question that the description of the land in the verdict and judgment is not of itself certain, the maxim that that is certain which can be made certain applies. It can hardly be disputed that the language used in the verdict and judgment at least gives the officer executing the writ sufficient information so that he can with no difficulty ascertain just exactly what land was covered by the verdict and judgment. Buso v. Russell, 86 Mo. 216; Baker v. Carrington, 68 N. Y. Supp. 405; Lockwood v. Drake, 1 Mich. 14; Greeley v. Thomas, 56 Pa. St. 25.
   PARIS, P. J.

Plaintiff brought ejectment in the circuit court of Buchanan county and had judgment. Defendant appealed for that the record is erroneous. There is no bill of exceptions. The errors urged are alleged to be in the petition, and in the verdict. The petition, omitting the prayer for judgment and formal parts, is as follows:

“Comes now the'plaintiff, and for his cause of action states that he and his wife, Agnes Collins, are the owners by the entirety of lot 23 and the east ten feet of lot 22, in block 3, Landis ’ addition to the city of St. Joseph, Buchanan county, Missouri, and on and prior to the 12th day of March, 1911, plaintiff was entitled to and was enjoying the peaceable possession of said property; that afterwards, to-wit, on or about the 13th day of March, 1911, the plaintiff then being so entitled to the possession of said property, the defendant entered into said premises and took possession of a strip off of the N. fifty feet of the west eighteen inches of same, to plaintiff’s damage in the sum of $100, and unlawfully withholds from plaintiff the possession thereof.”

The verdict, which is complained of, signature and formal parts omitted, reads thus:

“We, the jury in the above entitled cause, find for plaintiff for possession of the lands sued for, being that part of the east ten feet of Lot twenty-two (22), block three (3), Landis’s addition, lying between the fence erected by Andriano and now standing running from the southwest corner of the house to the front of the yard, and the west line of said ten feet, as shown by the surveys of William IT. Floyd, Jr., and Greorge S. Van Natta.”

The judgment followed the above verdict and was as to the description therein, responsive thereto.

I. It is contended (1) that the petition does not state any cause of action; (2) that the verdict being, as it is alleged, special, is insufficient, and (3) that it is so vagme and uncertain as to be void.

By a reference to the petition upon which the. ease was tried it will be seen that the title to a strip off of two parcels of land, or off one parcel, which consists or is made up of two separate lots or tracts, is averred to be in plaintiff and his’ wife as tenants by the entirety, that is to say, all of “lot 23 of block 3 and the east ten feet of lot 22 of said block 3 in Landis’s addition to the city of St. Joseph,” and that defendant, as it is further averred, “took possession of a strip off of the N. fifty feet of the west eighteen. inches of same.” It may be inferred from the petition, but it is not alleged, and except by such inference it does not appear therefrom, that said lot 23 and the east ten feet of lot 22 are contiguous and together form one compact parcel. But it is just as easy to infer that the parcels are separate and distinct; in which case it is not possible to say to what the word “same” refers, or from which lot the “same” is to be taken, or the width of the strip which is to be carved ‘£ off the north fifty feet of the west eighteen inches.” No difficulty was incurred, we apprehend, upon the trial in exactly and definitely locating the locus in quo, from which and the place at which, the carving off of the 18 inches in dispute was to be done, but defendant was entitled to have it located in the petition. If1 a demurrer had been filed, or if an objection ore terms had been made to any testimony for that the petition was insufficient as to the land’s description, we think there could be ho two views in such case as to the law and that such demurrer, or objection ore terms, would have lain. [Livingston Co. v. Morris, 71 Mo. 603.]

In passing we may say that the original petition brought up to us by the respondent’s additional abstract cannot avail respondent; for the reáson that this petition was abandoned and the case tried upon the amended petition which we set out in our statement. An abandoned pleading is no longer a matter for the record proper; it becomes when abandoned, but ah evidentiary matter available' ordinarily only to the adversary side as an admission against interest and to be preserved for our consideration only in a bill of exceptions with other matters of mere evidence. There is no bill of exceptions in the instant record, and so there is no petition before us for any purpose, except the amended petition upon which the case was tried below.

That the rule is that the petition must describe the land sought to be recovered so definitely that the officer who executes the writ of possession will know to' what land plaintiff is entitled, can not be doubted. [Griffin v. Hall, 111 Ala. 601; Lenninger v. Wenrick, 98 Ind. 596; Livingston Co. v. Morris, supra.] Unless therefore the fact that the attack upon the petition' herein came in at such time, i. e., after judgment, as that it is fully protected by our Statute of Jeofails, the contention of defendant ought to be sustained.

In the Statute of'Jeofails, which ought to cure many harmless errors which it does' not cure, we find no provision which reaches the difficulty which presents itself here. [Sec. 2119, R. S. 1909; Hart v. Harrison Wire Co., 91 Mo. 414.] Clearly, if the description be so lacking in certainty as not to describe comprehensibly any land, it is in no better case than it would have been if the description had been wholly omitted — a condition surely which no Statute of Jeofails could reach and cure.

For reasons which are fairly obvious, arising it is probable from the fact that there was not in England when we got the common law any deed registry, or recorder’s act, and that lands bore for the most part local names by which estates were better known than the same could have been known by any mere description, there was not in England any very rigid requirement as to strict accuracy of description in a declaration in ejectment. [Tyler on Ejectment, 393.] But we cannot find that this lax rule of description has ever prevailed in the United States. The general rule seems to be that sufficient accuracy and definiteness of description shall be employed in the petition as that a judgment being obtained the officer may be enabled to - locate the land in dispute and execute process thereon. [Newman v. Lawless, 6 Mo. 279; Livingston Co. v. Morris, 71 Mo. 603; 15 Cyc. 92; Simmons v. Thompson, 138 Ga. 605; Deweese v. Maxwell, 125 S. W. (Ky.) 145; Griffin v. Hall, 111 Ala. 601; Lenninger v. Wenrick, 98 Ind. 596; Tracy v. Harmon, 17 Mont. 465; Buesing v. Forbes, 33 Fla. 495; Holly River Coal Co. v. Howell, 36 W. Va. 489.] Viewed in the light of the above rule, we think it is clear that this description can not be cured either by verdict, or by any of the several Statutes of Jeofails.

No allegation having been made as to the relative position in Landis’s addition in which said lots 22 and 23 lie to each other, it is clearly impossible to say from the petition whether the land in controversy is to be taken off of lot 22 or lot 23. The record, since there is no bill of exceptions here, does not show whether said lot 23 is north, or south, east or west of said lot 22, and since there is, we notice, no uniformity as to the relative position of any given numbered lot in a plat of a town, to any other given numbered lot, we are precluded from taking any judical notice of the location of these lots with relation to each other. In fact, it would be impossible to notice judicially any such relative location since we notice that no uniformity whatever prevails. The verdict shows — so counsel tells us — that the tract detained in unlawful possession by defendant is a triangular shaped or three-cornered parcel, whereas it is averred to be a strip of indeterminable width off the west eighteen inches of one or the other of the lots described in the petition.

The alleged defects in the verdict we need not consider, since it is scarcely possible that error will again occur therein at the next trial, whether error be now therein-or not. We quote the verdict, however, in juxtaposition with the description in the petition, to illustrate how far short the petition fell of a proper description, even granting arguendo the sufficiency of the verdict. It follows that it is not necessary to decide whether the verdict be vague and indefinite as alleged and whether it be sufficient or not, since we find the petition fatally defective for lack of the sufficiency of the description of the land in controversy. Let the case be reversed and remanded for a new trial, if counsel for plaintiff be advised to amend his petition. It is so ordered.

All concur.


author: BROWN, J.

text:
    BELFAST INVESTMENT COMPANY, Appellant, v. CATHERINE CURRY et al.
    Division Two,
    March 30, 1915.
    1. RESULTING TRUST: Insufficient Evidence. Evidence by a widow that she contributed a part of tbe money wbicb went to purchase tbe lot deeded to ber busband in 1880, four years prior to tbeir marriage, but not stating bow much sbe contributed, is wholly insufficient to establish a resulting trust in her to any interest in the title.
    2. STATUTE: Amendment by Revised Bill: Parts Retained and Parts Omitted. When parts of an existing statute are repeated in a revised bill, those parts are' considered as a continuation of the statute, and not as a new enactment; while those parts of the statute that are omitted from the revised bill are treated as repealed.
    3. DOWER: Limitation: Disability of Coverture: Not Part of General Statute. The dower Statute of Limitations is not a part of the general law applicable to the limitations of actions concerning real estate, and cannot he construed as in pari materia with it, but stands alone, and as it makes no exception of coverture as an excuse for delay in asserting dower such disability will not be read into it. So that where the widow married again, the time within which she is barred to assert dower in her deceased husband’s land must be determined by Sec. 391, R. S. 1909, and cannot be lengthened out by provisions concerning the disability of coverture found in the general limitation law.
    4. - -: -: Ten Years: Coverture. An action for the admeasurement of dower is barred in ten years after the husband’s death; and the fact that soon after the husband’s death his widow married again and has since been under coverture, did not operate to lengthen the limitation. Such is the meaning of Sec. 391, R. S. 1909, and the courts cannot read into it any exception it does not contain. Her coverture (brought about by a remarriage) has not barred her since 1889 to maintain an action to have her dower admeasured— the same year in which said statute, in its present form, was enacted.
    5. -: -: -: Retrospective Statute. The General Assembly has power to shorten a limitation, provided a. reasonable time is given within which parties affected by it may maintain their actions to assert an existing right. The fact that the husband died and his widow remarried prior to the enactment in 1889 of Sec. 39.1, R. S. 1889, declaring that suits for the admeasurement of dower must be brought within ten years after the husband’s death, will not prevent the, application of that statute to her suit for dower in her deceased husband’s real estate, especially where it was not begun for more than ten years after the statute was enacted.
    6. -: Tenancy in Common. If the heirs of the deceased husband.exclusively occupy land in which his widow is entitled to dower and refuse to attorn to her any rents, then their possession becomes adverse to her and she cannot be considered . a tenant in common with them.

      7. -: The Word Recovery: Adverse Possession. The word “recovery” used in Sec. 391, R. S. 1909, beginning, “All actions for the recovery of dow.er in real estate,” does not mean an action to regain possession of real estate which has already been assigned or admeasured to the widow as dower; it means that if she wishes to assert dower, she must within ten years after the death of her husband bring her action in court for the admeasurement' of dower, whether or not the real estate be in adverse possession.
    8. -: Repeal of Exceptions: Mansion House: Acquiescence of Heirs. The fact that in the statute (Sec. 391, R. S. 1909) as originally enacted in 1887 there were saving clauses in favor of a widow if she was in possession of the mansion or under legal disability, and that these several clauses were omitted from the revised bill of 1889, strongly indicates a legislative purpose that there should be no exception at all to the requirement that an action for dower must be brought within ten years after the husband’s death; but whether it would be within the constitutional power of the General Assembly to penalize a widow by barring her dower in land already in her possession because she fails to bring suit therefor within ten years after her husband’s death, or whether the heirs would he estopped from setting up such failure as a bar after they had acquiesced in her exclusive possession, are questions not decided in this case, where the widow was at no time in possession and knew from the time of the final settlement in 1891 that her husband’s heirs were in possession and asserting exclusive ownership, and brought no action until 1910.
    Appeal from Jackson Circuit Court. — Mon. W. 0. Thomas, Judge.
    Affirmed.

      New & Krauthojf', P. E. Reeder and Maurice M. Winger for appellant.
    (1) The nnassigned dower interest of Mary E. Barrel, formerly Mary E. Griffin, in the property in question, as the widow of Thomas Griffin, passed by quitclaim deed from her to John Bing and from John Bing to the plaintiff. Sec. 346, R. S. 1909; Phillips v. Presson, 172 Mo. 24; Rohrer v. Oder, 124 Mo, 24; Chrisman v. Linderman, 202 Mo. 615. (2) The widow’s unassigned dower interest in the premises in question is not barred by tbe Statutes of Limitation. Robinson v. Ware, 94 Mo. 678, 688; Sberwood v. Baker, 105 Mo. 477; Null v. Howell, 111 Mo. 273; Harrison v. McReynolds, 183 Mo. 533; Brewing Company v. Payne, 197 Mo. 431; Chrisman v. Linderman, 202 Mo. 615; Johns v. Fenton, 88 Mo. 64. (3) Neither the Act of March 22, 1887, as originally passed, nor the amended Act of 1889, has any application in this ease. Robinson v. Ware, 94 Mo. 683; Beard v. Hale, 95 Mo. 16; Long v. Stock Yards Co., 107 Mo. 304; Null v. Howell, 111 Mo. 273; R. S. 1889, sec. 6797; R. S. 1866, p. 749, sec. 32,; Cranor v. School District, 151 Mo. 123; Stephens v. Bank, 43 Mo. 388; Paddleford v. Dunn, 14 Mo. 522; Laws 1887, p. 177, sec. 1; R. S. 1889, vol. 2, p. 2229; Walker v. Deaver, 79 Mo. 677; Kimmerly v. Insurance Co., Ill Mo. 206; Sherwood v. Baker, 105 Mo. 476; Mainwaring v. Lumber Co., 200 Mo. 732; Rice v. Fleming, 173 Mo. 49; State ex reí. v. Woodson, 128 Mo. 497. (4) The Statute of Limitation cannot be interposed as a defense by an heir claiming title under a deceased person in an action for dower by the widow of such deceased, or those claiming under such widow, or by tenants in common. Livingston v. Cochran, 33 Ark. 294; Down v. Allen, 78 Tenn. 652; Guthrie v, Owen, 18 Tenn. 339; Cockrell v. Curtis, 83 Tex. 105; Robinson v. Ware, 94 Mo. 687; Sutton v. Casselleg’e, 5 Mo. Ill; Long v. McDow, 87 Mo. 197; LaPeyre v. Paul, 47 Mo. 586. (5) Defendants failed to prove that they, or any of them, had been in adverse possession of the premises for ten years immediately preceding the commencement of this suit. Dalby v. Snuffer, 57 Mo. 294; Ivy v. Yancey, 129 Mo.. 501; Robinson v. Clagett, 149 Mo. 153; Johnson v. Pruitt, 32 Mo. 553. (6) The dower interest of the widow, Mary E. Barr ell, formerly Mary E. Griffin, in the premises in question was not abandoned by her and her title was not divested by any act on her part shown in evidence. Putnam v. Tyler, 17 Pa. St. 585; Barrett v. Coal Co., 70 Kan. 665; Kreamer v. Yoneida, 62 Atl. (Pa.) 518; Norman v. Corbley, 79 Pac. (Mont.) 1059; Sharkey v. Candiana, 85 Pac. (Ore.) 219; Hoffman v. Bell, 61 Pa. St. 444; Bear v. Dewart, 95 Pa. St. 72; Coal Co. v. Wiggin, 68 Fed. 446; Philadelphia v. Riddle, 25 Pa. St. 259; Bramwell v. Adams, 146 Mo. 70; Trust Co. v. Horn, 83 Mo. App. 114; Petring v. Christer, 90 Mo. 649; 16 Cyc. 732.

      A. N. Adams and Bcarritt, Scarritt, Jones & Miller for respondents.
    (1) Plaintiff’s action is barred by the act entitled, “Dower; Time for Instituting Suit,” Laws 1887, p. 177. R. S. 1889, sec. 6607; Harrison v. McReynolds, 183 Mo. 533. (2) Plaintiff’s action is barred under Sec. 391, R. S. 1909. Callaway County v. Nolley, 31 Mo. 393; Seibert v. Copp, 62 Mo. 182; Tice v. Fleming, 173 Mo. 49; Cranor v. School District, 151 Mo. 119; Bick v. Robbins, 131 Mo. App. 670; Brewster v. Brewster, 32 Barb. (N. Y.) 429; Martin v. Martin, 35 Ala. 560; Sohn v. Waterson, 17 Wall. (U. S.) 596; Ross v. Duval, 13 Pet. (U. S.) 45; Lewis v. Lewis, 7 How. (U. S.) 776; Railroad v. Laramie Stock Yards Co., 231 U. S. 190. (3) Plaintiff’s action is barred by the general Statute of Limitations applicable to real actions, being Sec. 1879, R. S. 1909, to the effect that “no action for the recovery of lands . . . shall be commenced . . . unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question within ten years before the commencement of such action.” (a) Neither the plaintiff nor any of its predecessors were seized or possessed of the premises in question within ten years before the commencement of this suit. 4 Kent Com. (13 Ed.) 61; Brannock v. Magoon, 216 Mo. 722; Robinson v. Ware, 94 Mo. 678; Kennedy v. Duncan, 224 Mo. 662; 2 Scribner on Dower (2 Ed.), sec. 27, ch. 20. (b) Defendants and their predecessors have been in adverse possession of the property for more than ten years before the institution of this suit. The possession of the administrator was adverse to the widow in respect to her dower. R. S. 1909, secs. 367, 369, 372, 375. The possession of the heirs was adverse to the widow with respect to her dower. Conover v. Wright, 6 N. J. Eq. 613; Berrien v. Conover, 16 N. J. L. 107. (4) The widow’s dower, if any existed, was extinguished and conveyed by the city tax deed to P. N. Phelps. He thereby acquired the fee simple title to the lot in question, and that title by mesne conveyances was well vested in the defendants. This tax deed preceded in time the quitclaim deed from the widow under which plaintiff claims and it follows that the defendants and not the plaintiff are the transferees of the widow’s dower. Rohrer v. Oder, 124 Mo. 24; Kansas City Charter 1889, art. 5, sec. 62; Chrisman v. Hough, 146 Mo. 102; Jones v. Devore, 8 Ohio St. 430. (a) • The widow is not a tenant in common or joint tenant in respect to her dower with the heirs of the deceased husband and the purchase of this lot from Phelps by Adams and the heirs did not inure to the use of the widow. McClanahan v. Porter, 10 Mo. 746; Walker v. Doane, 131 111. 27; Hamby v. Hamby, 165 Ala. 171; Long v. Stock Yards Co., 107 Mo. 298; Robinson v. Ware, 94 Mo. 678; 4 Kent Com. (13 Ed.) 61. (b) There was no fiduciary relation between Adams and the widow, nor was he under any obligations to her, and the purchase by him of an undivided one-half of this property and the conveyance of that interest by Phelps to him did not inure to the use of the widow.
   BROWN, J.

Action to establish resulting trust; to recover dower in real estate; and for an accounting. Defendants had judgment below and the plaintiff appeals..

Before giving á resume of the pleadings we will recite a history of the title and possession of the real estate in controversy. On May 8, 1885, one Thomas Griffin died in Kansas City, Missouri, seized of the title to lot one in block three in McGee place, an addition to said city, which lot possessed a small rental value. Thomas Griffin left a widow and several brothers and sisters surviving him, but no lineal heirs. Neither he nor his wife ever occupied the lot in controversy as a home.

The widow of said Thomas Griffin married one Alfred Barrell in 1888, and located in Los Angeles, California, where she has ever since resided. Mrs. Barrell testified that shortly after the death of her first husband, Thomas Griffin, she expended $60 for improvements on the lot in controversy.' She further testified that she then gave the title papers of the lot to her brother-in-law, William Griffin, with a request that he rent the property and look after it for her. William Griffin engaged one Donnelly to rént out the lot. In May, 1889, Donnelly turned the possession' of the lot over to Fred C. Hey, public administrator, together with $86.50 collected as rent. Mr. Hey, form: erly public administrator, testified that William Griffin was the only relative of Thomas Griffin living in Kansas City, his other collateral heirs residing in' the East. That said William Griffin was very friendly to the widow, Mrs. Barrell, and expressed a desire that she should have the lot. Said William Griffin was dead at the time of the trial.

The administrator, Mr. Hey, made final settlement of the estate of Thomas Griffin in August, 1891. Said settlement showed'that on July 1, 1891, he paid $100 of said rents to the widow, Mrs. Barrell: At the close of his administration he turned over the possession' of the lot to one George Kumpf, together with a balance in his hands, amounting to $66.08. The settlement indicates that he did not while administrator receive any moneys, except rents from the lot in controversy, together with the amount turned over to him by Mr. Donnelly. No exceptions were filed to his final settlement.

It does not appear that Kumpf had any lawful authority to assume control of the lot. He says he took charge of the lot and the $66.08 balance in the hands of the administrator because the administrator was in trouble and he (Kumpf) having signed his bond did not want him to get in any deeper. Mr. Kumpf continued to collect rents on the lot in controversy until about 1905 or 1906, when, upon the advice of his attorney, he paid such rent over to the “heirs of Thomas Griffin.” He did not know, or could not remember, who those heirs were, but understood that the amount he paid ($394) was needed to purchase or extinguish some tax claims outsanding against the property. Mr. Kumpf further testified that he was under the impression that one Almena A. Archer pretended to be agent for the Griffin heirs. Mrs. Archer was not sworn. The evidence indicates that for several years she rented the property from Kumpf, but there is nothing in the record by which her agency for the Griffin heirs or the widow of Griffin was satisfactorily proven.

Taxes were allowed to become delinquent on the property in controversy for the years 1899 and 1901, for which tax deeds were issued by the treasurer of Kansas City to one F. N. Phelps, dated November 11, 1903. A tax deed was also issued on October 27, 1903, by said treasurer of Kansas City, purporting to convey said property to the Standard Investment Company for taxes of the year 1898. On October 29, 1906, F. N. Phelps brought an ejectment suit against Mrs. Archer, as tenant of the lot in controversy, in which suit Mrs. Barrell, formerly the widow, and the unknown heirs of Thomas Griffin, were made parties defendant. In August, 1907, after the filing of the Phelps suit one A. N. Adams, an attorney of Kansas City, made a contract with the collateral heirs of Thomas Griffin to protect them against the Phelps suit, for which he was to receive one-half of whatever money or land he might recover for them.

After getting this contract of the collateral heirs, Mr. Adams made a deal with Phelps and the Standard Investment Company whereby they agreed to surrender their respective tax titles in consideration of $394 rent money collected by Mr. Kumpf. Upon receipt of this rent money Mr. Adams caused one-half of the tax titles to be conveyed to himself, and the remainder thereof to the collateral heirs of Thomas Griffin. He also received a deed from the collateral heirs purporting to convey to him one-half of their interests. A very short time before mating his contract with the collateral heirs of Thomas Griffin, attorney Adams wrote the following letter to Mrs. Barrell, formerly the widow of Thomas Griffin:

Aug. 9, 1907.
Mrs. Mary E. Barrell,
Los Angeles, California.
Dear Madam:
I have been informed that you are the widow of Thomas Griffin, deceased. As you probably know Thomas Griffin was the owner of Lot 1, Block 3, McGee Place, an addition in Kansas City, Missouri. I have been corresponding with the heirs of Thomas Griffin concerning this estate. They cannot give me any information of your whereabouts, but I find from the papers in the administration of the estate of Thomas Griffin that you were, at the time of final settlement, residing in (San Francisco) Los Angeles, California. This lot has been sold for taxes, and the purchaser at the tax sale is now endeavoring to perfect his title. By immediate action I think something can be saved for you as the widow, and for the heirs of Thomas Griffin.
Will you kindly write me at once upon receipt of this letter and let me know where you are and I will explain matter further. Very respectfully yours,
A. N. Adams.

To this letter Mrs. Barrell replied as follows:

121 N. Avenue 24, Los Angeles, Cal.,
August 14, ’07.
Arthur N. Adams, Esq.,
Kansas City, Mo.
Dear Sir:
Yours of the 9th inst., rec. and contents noted. In reply . will say that I was the widow of Thos. Griffin and am well. aware of the fact that we did own the. lot you have described, in Kansas City, at 18th and Cherry street. Several years ago, when I married my present husband, it appears that Mr. Griffin’s folks got angry and tried to keep me from getting the place, so I gave it up and have not bothered about it any since. I thought if they needed it any worse than I did they could have it. Would be pleased to know what became of the place and how many of Mr. Griffin’s heirs are still looking for it. Awaiting your reply, I am, very respectfully,
Mary E. Barrell.

Mr. Adams claims, to have replied to Mrs. Barrell’s letter, but no copy of such a reply was introduced in evidence.

In April, 1909, one James EL Faris, representing the plaintiff (Belfast Investment Company), called upon Mr. Adams with a view of purchasing the land in controversy. Adams informed Mr. Faris of his deed from the collateral heirs, and likewise his deed from the holders of the tax titles, and offered to sell his interest to the.plaintiff company for $1500. Mr. Adams loaned Mr. Faris an abstract of title to the lot and called his attention to the fact that Mrs. Barrell had written a letter which he (Adams) had interpreted to mean that she disclaimed any interest in the lot in controversy. After holding the abstract some four hours Mr. Faris for the plaintiff company refused to accept Mr. Adams’s offer.

On- June 17, 1909, the plaintiff, through an agent, purchased all Mrs. Barrell’s title to the lot in controversy, paying therefor $700, and receiving a .quitclaim deed.

Thereafter, on September 7, 1910, the plaintiff instituted this action against A. N. Adams and his codefendants, such codefendants being the collateral heirs of Thomas Griffin, deceased.

In the second amended petition npon which the trial below was had it was averred that the lot in controversy was purchased by Thomas Griffin and his wife, Mary E. Griffin (now Mary E. Barrell), in the year 1880, each of them contributing one-half of the purchase price, and that the legal title was taken in the name of said Thomas Griffin under a contract that an undivided half thereof would be held .in trust by him for his wife. Said petition also averred the purchase by plaintiff of all the title of said Mary E. Barrell, and prayed that the title to said lot be tried and determined. That all the title held by said Mary E. Barrell be declared vested in plaintiff, and that an accounting be had upon the rents received by defendants and on moneys paid out by them for taxes and the purchase of tax titles, and for all other proper relief.

The answer, in addition to a general denial, pleaded the ten-year Statute of Limitation. The answer also set up certain alleged equitable defenses, which, for the purposes of this opinion, it is not necessary to describe here.

Such other facts as may be found necessary to make clear the issues in this cause will be recited in connection with our conclusions.

I. Mrs. Barrell, testifying for plaintiff, stated that the lot in controversy was purchased shortly after' her marriage to Thomas Griffin, and that ****si16 contributed part of the purchase money, but she does not say how much. As a matter of fact the deed to Thomas Griffin shows that the lot was purchased several years before her marriage to him. The evidence entirely fails to sustain plaintiff’s claim of a resulting trust, and the plaintiff seems to concede this fact in its brief by resting its case entirely upon the theory that it acquired the dower of Mrs. Barrell, which, under section 4514, Revised Statutes 1889, now section 346, Revised Statutes 1909, she possessed the right to transfer. [Phillips v. Presson, 172 Mo. 24.]

II. If the plaintiff is entitled to recover at all in this case snch recovery must be based upon the dower right transferred to it by Mrs. Barrell. If that right is barred by the Statute of Limitation specifically applicable to actions for the recovery of dower in real estate, then the judgment for defendants must be affirmed.

It is apparent that the possession of the administrator Mr. Hey was not adverse to the widow, because he paid to her a part of the rents collected from the property in controversy.

The possession of Mr. Kumpf, which began at the close of the administration in 1891, and continued for fifteen years, seems not to have been friendly to the widow, Mrs. Barrell, because he never paid to her any rents and never agreed to do so. Neither did she even demand of Mr. Kumpf the possession of the property, or that he account to her for rents collected.

Whatever may have inspired Mr. Kumpf to take possession and collect rents, there is nothing to indicate that he was an agent or tenant of the widow. That fact is evidenced by the letter of Mrs. Barrell bearing date of August 14, 1907, in which she says she gave up the property because of the unfriendly attitude of Mr. Griffin’s “folks.”

It is, however, contended by appellant that as the widow had remarried in 1891 when Mr. Kumpf entered into possession she was under the disability of coverture, and could not be barred by the ten-year Statute of Limitation applicable to actions to recover dower. This issue calls for a most careful consideration of the statute fixing the date within which actions for the recovery of dower may be instituted. [Sec. 391, R. S. 1909.] This statute seems to have received a desultory consideration in the cases of Harrison v. Mclieynolds, 183 Mo. 533, l. c. 539; Kennedy v. Duncan, 224 Mo. 661, and Jodd v. Railroad, 259 Mo. 239. However, these eases are at most only a partial construction of said statute.

Section 391, Revised Statutes 1909, was first enacted in the year 1887, under the title of “An Act limiting the time for the institution of suits for dower in real estate,” and, as first enacted, read as follows:

“Section 1. All actions for the recovery of dower in real estate, which shall not he commenced within ten years from and after this act takes effect, or within ten years after the death of the husband, through or under whom such dower is claimed or demanded, shall be forever barred: provided, however, that if any person entitled to bring an action for the recovery of dower at the time this act takes effect be under legad disability to bring such action, such person may bring such action after the time herein limited and within three years' after such disability is removed: provided, further, that the limitation in this act specified shald not be deemed to apply in any case where the widow is in possession of, and enjoying the mansion house of her husband as specified in section 2205, Revised Statutes of the State of Missouri of 1879, until she shall have been evicted therefrom.” [Laws 1887, p. 177.]

At the revising session of 1889 the foregoing section was amended by a revised bill, and all those provisions quoted in italics were eliminated, leaving the section in the form which it has ever since appeared in our statutes. [Sec. 4558, R. S. 1889; Sec. 2979, R. S. 1899; and Sec. 391, R. S. 1909.]

There seems to be no doubt that it was the legislative intent to repeal those provisions of the original act suspending its operation in favor of parties under legal disabilities, and possibly as to widows occupying the mansion houses of their husbands.

So much of the original act as appears in the revised bill was taken from the Act of 1887. This is manifest by a reference in tbe revised bill itself to tbe Laws of 1887, p. 177, as tbe place from which this section as amended was derived.

The nsnal rule is that when part of a former act is repeated in an amendatory statute, the provisions thus repeated are considered as a continuation of the former law, and not as a new enactment; while those parts of the original act which are omitted from the amendment are treated as repealed. This rule is announced by Lewis-Sutherland in the second edition of his work on Statutory Construction, vol. 1, pp. 442-3, as follows:

“The amendment operates to repeal all of the section amended not embraced in the amended form. The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act.”

See also 36 Oyc. 1082. This rule seems to have met with statutory recognition in this State. [Sec. 6606, R. S. 1889; Sec. 8086, R. S. 1909. See also State ex rel. Craig v. Woodson, 128 Mo. 497, l. c. 512.]

However, whether the limitation on suits to recover dower be considered as a continuation of part of the Act of 1887 or a new enactment in the revised bill of 1889, we find that the plaintiff cannot successfully assert the coverture of Mrs. Barrell as a defense to her failure to bring suit for her dower, for two reasons :

(1) The dower Statute of Limitation is not a part of the general law applicable to the limitations of real actions (Art. 8, chap. 21, R. S. 1909), and, therefore, cannot be construed in pari materia with such general law.

The rule is that when a Statute of Limitation stands alone and makes no exceptions as to its provisions none will be read into it. In harmony with this view it was ruled by this court that the disabilities enumerated in the general law cannot be interposed to toll or modify the thirty-year Statute of Limitation. [DeHatre v. Edmonds, 200 Mo. 246, l. c. 279; see also M’Iver v. Ragan, 15 U. S. 25, l. c. 29.]

Statutes of Limitation are looked upon with favor, because they tend to promote public peace and to prevent the litigation of stale and abandoned claims. Tyler in his work on Ejectment, p. 928, gives the rule for construing this class of statutes in the following language:

“Another well-settled proposition in respect to the running of the.Statute of Limitations is, that the statute will run against all persons, and no exception to the statute can be claimed, unless it is expressly mentioned in such statute. ‘ General words of a statute, it is considered, must receive a general construction; and, unless there can be found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment.’ [Citing authorities.] And the doctrine of the authorities very clearly is, that Statutes of Limitation are to be strictly construed; and where the statute makes no exception, the court can make none on the ground of any inherent equity, or because it may appear to be reasonable that the statute should not run against any party in a given case. ’ ’

(2) Having first enacted the statute limiting the time for instituting suits to recover dower with a saving clause or exception in favor of persons who were or might be under legal disability to sue, and subsequently. having eliminated that saving clause in the revised bill (as before quoted), the legislative design to repeal such disability clause is clearly demonstrated. The fact that disability to bring an action to recover dower was more likely to result from coverture (a remarriage of the widow) than anything else may have been one of the reasons which moved the General Assembly to enact a new law in 1889 permitting a married woman to maintain her suits as a feme sole. [Sec. 1996, R. S. 1889.] It is certain that the statute last named is in harmony with the dower Statute of Limitation as amended at the same session of the General Assembly so far as the disability of coverture is con- . cerned.

We are not unmindful of the fact that the conclusion we have reached is out of harmony with’ those prior decisions of this court which held that limitation would not run against dower prior to the assignment thereof. [Johns v. Fenton, 88 Mo. 64; Holmes v. Kring, 93 Mo. 452.] However, the provisions of the special Statute of Limitation relating to dower enacted in 1887 (if then in force) was not considered by the court when the case last cited was decided.

. The right to dower does not attach to any particular part of a tract of land until it is assigned. It is in a sense an encumbrance upon all the land to which the husband died seized. The Legislature may have deemed it for the public good that land should not be rendered unsalable by such an outstanding claim for an indefinite time-, and therefore wished to compel parties having such undivided possessory rights to assert them within ten years. At any event, it is our duty to obey and enforce all valid laws as they are written, and not as we think they ought to have been written. [State ex rel. Gray v. Wilder, 206 Mo. 541, l. c. 549.]

It seems to be contended by appellant that the dower Statute of Limitation cannot apply to the title which it purchased from Mrs. Barrell, because her husband was dead before the year 1887 when this law was enacted. We do not think this point presents any difficulty. The chief purpose of the statute was to compel widows to institute suits to have their dowers assigned within ten years. As the statute operated prospectively it at least became tbe duty of the widow to bring her action within ten years after Mr. Kumpf entered into possession in 1891. We do not wish to be understood as holding that it was not the duty of the widow to bring her action within ten years after the date of her husband’s death in 1885, for it is undoubtedly within the power of the General Assembly to shorten a Statute of Limitation, provided a reasonable time is left within which parties affected by its provisions may institute their actions. [Tice v. Fleming, 173 Mo. 49; Winkleman v. Levee District, 171 Mo. App. 49, l. c. 58.]

III. Appellant contends that if the possession of Kumpf was on behalf of the heirs of Thomas Griffin, deceased, then it was at no time adverse to the widow, because the heirs of Griffin and his widow were tenants in common. In Robinson v. Ware, 94 Mo. l. c. 687, there is a quotation from Kent which tends to support the theory that a widow possessed of an unassigned dower right is a tenant in common with the heirs of her deceased husband. That quotation seems to be directly in conflict with the prior announcement of this court .in the case of McClanahan v. Porter, 10 Mo. 746, l. c. 751. We think the rule announced in McClanahan v. Porter is correct. The possession of a dowress is not adverse to the heirs. She has only a life-estate, and her possession passes to the heirs as remaindermen at her death. It is not so when the situation is reversed. If the heirs exclusively occupy land to which the widow is entitled to dower and refuse to attorn to her any rents, then their possession becomes adverse to her and she cannot be considered as a tenant in common with them.

IV. The word “recover,” as used in section 391, Revised Statutes T909, does not mean to regain possession of real- estate which lias already been assigned or admeasured to the widow as dower. As used in said section it means “to obtain final judgment — to succeed in a lawsuit.” [Webster’s New International Dictionary.] The same as to “recover” a fine by the State, or to “recover” damages by one who has received personal injuries through the negligence of another. [Gawtry v. Adams, 10 Mo. App. 29, l. c. 33; 34 Cyc. 763-4; Monterey County v. Cushing, 83 Cal. 507, l. c. 512; Keiny v. Ingraham, 66 Barb. (N. Y.) 250, l. c. 257; Inhabitants of Oxford v. Inhabitants of Paris, 33 Maine, 179, l. c. 181.] In the case last cited it was said: “When a defendant has obtained a judgment against a plaintiff in a suit, he in legal language is said to have recovered in that suit.”

It will be observed that section 391, Bevised Statutes 1909, does not make adverse possession a necessary incident to the duty of the widow to bring her action to recover dower within ten years after the death of her husband. It seems to be her unconditional duty to bring the action within ten years if she intends to bring it at all.

The fact that in the statute as originally enacted there were saving clauses in favor of the widow if she was in possession of the mansion house or under legal disability, and that these several clauses were stricken out in the revision of 1889, strongly indicates a legislative purpose that there should be no exception at all to the operation of this statute.

Whether it would be within the constitutional power of the General Assembly to penalize a, widow by barring her dower because she fails to bring suit for her dower in land which is already in her exclusive possession, and whether or not the heirs might be estopped from setting up the Statute of Limitation after they have acquisced in the exclusive possession of the widow, are matters not before us on the record in this cause, and upon which we express no opinion at this time.

We do hold on the facts in this case that, being out of possession and with knowledge on her part that at least some of the collateral heirs were disputing her right to the property (as she admits in her letter to Adams, and in her testimony), it became the duty of Mrs. Barrell to institute her suit to recover her dower in the property in controversy within ten years after the close of the administration in 1891, and having failed to do so both she and the plaintiff as the assignee of her claims are barred.

The conclusion we have reached renders unnecessary a consideration of the alleged equitable defenses pleaded by defendant. The judgment of the trial court is affirmed.

Paris, P. J., and Walher, J., concur.


author: ROT, C.

text:
    HENRY P. P. BROWN, Appellant, v. WILLIAM A. HOWARD.
    Division Two,
    March 30, 1915.
    ORDER OF PUBLICATION: Published Five Times a Week for Four Weeks: Sec. 3500, R. S. 1879. Under Sec. 3500, R. S. 1879, which, with no distinction between weekly newspapers and others, provided that orders of publication against nonresident defendants should be published four weeks successively, the last insertion to be at least four weeks before the commencement of the term to which they were to appear, publication five times a week for four weeks, beginning on June 29, and ending on July 26, was' sufficient for an order requiring appearance at the term beginning September 1.
    Appeal from Buchanan Circuit Court. — lío». W. K. .... . . Amiclc, Judge.

    Affirmed.

      Q. W. Meyer for appellant.
    The attempted service by publication in the foreclosure proceedings of the St. Joseph Fire and Marine Insurance Company was a nullity as to this appellant, and gave the circuit court no jurisdiction over this appellant or over Josephine Clemmons and George W. Brown, because: (a) “The weight of authority supports the proposition that the publication in whole or in part of a summons or other legal notice in a newspaper published on Sunday is invalid.” 87 Cyc. 587; McLaughlin v. Wheeler, 50' N. W. 834; Schwed v. Hartnitz, 47 Pac. 295; Sawyer v. Cargile, 72 Ga. 290; Dunmars v. Denver, 65 Pac. 585; Scammon v. Chicago, 40 111. 196; Ormsby v. Louisville, 79 Ky. 197; Sewall v. St. Paul, 20 Minn. 459; Shaw v. Williams, 87 Ind. 158. (b) The statutes of this State in force at that time prohibited work and labor, and also the serving of any legal process on Sunday. R. S. 1879, secs. 1578, 4039: (c) Under the fourth subdivision of Sec. 3126, R. S. 1879, the first day of the publication must be excluded, (d) The whole number of insertions, as shown by the proof of publication, was only twenty-four, including four Sunday insertion, and the first insertion was on Sunday.

      William E. Stringfellow for respondent.
    The publication complained of was sufficient. Howard v. Brown, 197 Mo. 36; Asphalt Pav. Co. v. Muchenberger, 105 Mo. App. 47; State v. Green, 66 Mo. 631; Bank v. Stumpf, 73 Mo. 311. Appellants complain that the publication was bad, because it began on Sunday and contained four Sunday insertions. R. S. 1879, sec. 3500:
   ROT, C.

This is a proceeding to quiet title to the undivided seventh of ‘the east twenty feet of lot one and the east twenty feet of the south sixteen feet of lot two in block thirty, in the city of St. Joseph. There was a finding and judgment for the defendant.

Plaintiff claims as the heir of George W. Brown who died in 1875.

On April 8,1873, George W. Brown and wife executed a deed of trust on the land to secure a debt of $3000. Biy mistake it was so drawn as to convey only the undivided half of the land. On May 17, 1884, the holder of the debt secured by that deed of trust sued the heirs of Brown to correct the mistake in that deed of trust and to foreclose it. The petition averred that Henry P. Brown, defendant therein and plaintiff herein, was a non-resident of this State. An order of publication was made against him. It was returnable on the first day of the next term to be begun September 1, 1884. It was published in the St. Joseph Daily and Weekly Gazette in the consecutive issues of the paper from Sunday, June 29, to Saturday, July 26, 1884, inclusive, except that said paper was not issued on Monday of each week. At the foreclosure sale in that case Parmelia J. Brown became the purchaser on March 11, 1885, and the defendant herein has acquired her title.

The only objection made to the legality of the foreclosure of the deed of trust is that the order of publication was not legally published for four weeks. In Haywood v. Russell, 44 Mo. 252, it was held that publication for four consecutive weeks in a weekly newspaper, the last insertion being four weeks before the return term, was sufficient. It was expressly held that it was not necessary that the first insertion should be eight weeks before the term. In Cruzen v. Stephens, 123 Mo. l. c. 346, it was held that the decision on that point in Haywood v. Russell, had become a rule of property in the State and should stand. The Cruzen case involved the sufficiency of a sale under a judgment for taxes in which under the statute the publication is to be made as in other civil cases-; so- that there was no difference in the law applicable to.those two cases. There followed Yonng v. Downey, 150 Mo. 317, involving the validity of the sale of real estate by an administrator to pay debts. The notice required in such case must, by the statute, be published four weeks before the beginning of the term at which the parties interested in the estate must, under the notice, appear. In that case it was held that the first consecutive insertion must be four weeks before the beginning of the term. Unfortunately the Young case held on page 324 that there was a wide difference between Haywood y. Russell and Cruzen v. Stephens. Neither of those latter cases involved the sufficiency of the notice of an application for sale to pay debts. - Yet the opinion in Young v. Downey, proceeding on the theory that Cruzen v. Stephens involved the statute applicable to the notice of an application for sale to pay debts, repudiated in effect at least, the latter case. The difference in the two statutes has since been clearly recognized.

In the case of Howard v. Brown, 197 Mo. l. c. 46, it was held that proof of publication against a nonresident was good when published on March 15, 22, 29 and April 5, returnable to. a term beginning on May 7. No citation of authority is there made, but Haywood v. Russell and Cruzen v. Stephens, supra, could have been cited, for they decided exactly the same point, i. e., that the first consecutive insertion need not be eight weeks before the return day.

Section 3500, Revised Statutes 1879; which controls in this case, did not distinguish between weekly newspapers and others. The newspaper which published the order of publication in this case issued no Monday edition. The order was published in ■ every issue of the paper for four full weeks beginning on Sunday and ending on Saturday, the last insertion being more than five weeks before the return- day. Contention is made that the publication made in -the Sunday issue is void. We concede that proposition ■without deciding it. We omit Sunday because it was Sunday, and Monday because there was no issue of the paper on that day. It was legally published in the issue of every other day in the week for four weeks. The statute as it then was, made no difference between a weekly paper and one published oftener. Surely, if publication in a weekly paper for four consecutive weeks is sufficient, publication five times a week for four consecutive weeks in a paper published five times a week is sufficient. What is here said is on the theory that in every case the last insertion is four weeks before the return day.

We hold that the publication was sufficient, and the judgment is affirmed.

Williams, G., concurs.

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

All the judges concur.


author: WILLIAMS, C.

text:
    J. G. RIPKEY, Appellant, v. H. P. BINNS et al.
    Division Two,
    March 30, 1915.
    1. PROCEEDING TO ESTABLISH ROAD: Petition: Resident Owners of Land: Description of Holdings: Jurisdiction. While in the matter accompanying a petition to establish a public road, under Sec. 9414, R. S. 1899, it would no doubt be good practice, after having stated the names of the resident persons owning land through which the proposed road is to run, to describe the particular tract owned by each, yet the failure to include such description does not deprive the court of jurisdiction to entertain the proceeding.
    2. -: -: -: Trustee and Beneficiary in Deed of Trust: Jurisdiction. The trustee and beneficiary in a deed of trust, as such, are not owners within the meaning of Sec. 9414, R. S. 1899, and the failure to list them as among the resident owners of property through which the proposed road is to run does not affect the court’s jurisdiction.

      3. -: Record of County Court: Commissioners to Assess Damages: No Showing They are Not of Kin to Landowners, or that they were Sworn: Jurisdiction. The facts that the record of the county court in a proceeding to establish a road failed to state that the commissioners to assess damages were not of kin to any of the parties asking damages, and that their report failed to show they were sworn before viewing the premises, do not deprive the circuit court of jurisdiction on an appeal from an award of damages in the county court.
    4. -: Jurisdiction: Appeal to Circuit Court. In a proceeding to establish a road the county court acquires jurisdiction when the petition in due form is filed and the required statutory notice given; irregularities in the proceedings in the county court after jurisdiction is once acquired will not deprive the circuit court of its jurisdiction on appeal.
    5. -: Assessing Damages: Special Benefits. Where the appellant and 'three others, a part of whose land a proposed road will take, will by its establishment be given their only outlet to a public road, the other landowners affected having connection already with a public road, such outlet is a special benefit to the appellant’s land and can be set off against his damages, despite the fact that the three others mentioned will also be given an outlet.
    6. -: Attacking Jurisdiction: Questions Requiring Extrinsic Evidence. While as a general rule questions of jurisdiction over the cause of action may be raised at any stage of a proceeding, yet the better practice demands that such defects as require the hearing of testimony should be raised before the trial is ended, so that the testimony may .properly become a part of the bill of exceptions, and so that any error with reference thereto may be called to the trial court’s attention in the motion for a new trial.
    7. -: -: --: This Case. Where a landowner . through whose property a proposed road will run has testified at the trial to assess damages that he is the owner of the land, he will not be permitted, after judgment, to file a motion attacking the court’s jurisdiction on the ground that another person, whose name did not accompany the petition for the road, was the resident owner of an undivided half of the land which he had testified he owned.
    Appeal from St. Clair Circuit Court. — Hon. C. A. Denton, Judge.
    Affirmed.

      John B. Mumma, C. T. Beddington and Waldo P. Johnson for appellant.
    (1) The utmost strictness is required to give proceedings of eminent domain validity. Every essential requirement of the statute must be complied with or such proceeding will be void. Anderson v. Pemberton, 89 Mo. 61; Spurlock v. Doran, 182 Mo. 242; Drainage District v. Campbell, 154 Mo. 151; Taylor v. Todd, 48 Mo. App. 5'50; Cunningham v. Railroad, 61 Mo. 33; Rousey v. Wood, 57 Mo. App. 650. (2) Proceedings to open a public road must be taken in their entirety, and if they are void as to one of the parties in interest, they are void as to all. Anderson v. Pemberton, 89 Mo. 61; St. Louis v. G-leason, 15 Mo. App. 25. (3) On appeal to circuit court, trial should be de novo, including the question of the utility and public necessity of the proposed road and all questions in issue. R. S. 1899, secs. 9419,1788, 4062, 4072; Mayes v. Palmer, 206 Mo. 293; Bennett v. Hall, 184 Mo. 407; In re Big Hollow Road, 111 Mo. 326; 5 Words and Phrases,'4493; Stutz v. Cameron, 254 Mo. 340. (4) The appointment of the commissioners to assess damages must show that they are disinterested freeholders of no kin to any of the parties. Jones v. Zink, 65 Mo. App. 409; R. S. 1899, sec. 9417. (5) The petition and the report of the road commissioners must be accompanied by the names of all resident landowners or the court acquires no jurisdiction. R. S. 1899, sec. 9414; Spurlock v. Doran, 182 Mo. 242; Bennett v. Hall, 184 Mo. 407. (6) Trustee and beneficiary in a deed of trust should be made parties. The word ‘ ‘ owner” in statutes of eminent domain is used in a comprehensive sense and includes all persons having any interest in the land. 15 Cyc. 844; Railroad v. Baker, 102 Mo. 553; McShane v. Moberly, 79 Mo. 41; Mantz v. St. Paul, 52 Minn. 409 ; Gerrard v. Railroad, 14 Neb. 370; McCotter v. New Shoreham, 21 R. I. 43. (7) Jurisdictional questions can be raised at any time and the court should hear the motion to dismiss filed after judgment. Railroad v. Campbell, 62 Mo. 585. (8) Only benefits peculiar to the land of objector can be offset and the same benefit (that of obtaining a public road) shared by several persons is not a peculiar benefit and cannot be offset against damages. Newby v. Platt County, 25 Mo. 258; Daugherty v. Brown, 91 Mo. 32; Bridge Co. v. Stone, 194 Mo. 188; Hickman v. City, 120' Mo. 123; Bennett v. Hall, 184 Mo. 421; Lingo v. Buford, 112 Mo. 157.
    , Hargus & Johnson for respondents.
    (1) A valid petition and notice confer jurisdiction on the county court in road cases. These were present in this case. R. S. 1899', sec. 9414; Sec. 10435', R. S. 1909; Halter ‘v. Leonard, 223 Mo. 291; Seafield v. B'ohne, 169 Mo. 547; Wilhite v. Wolf, 179 Mo. 479. (2) The trustee and beneficiary in a deed of trust on land and the grantor in a written contract for the sale of land are not “owners” in the sense as to make them necessary parties, in a proceeding to establish a road. Warren v. Gibson, 40 Mo. App. 476; Schumacher v. Toberman, 56 Cal. 508; Railroad v. Sheldon, 53 Kan. 169'; Railroad v. Bank, 52 Kan. 467; Rand v. Railroad, 50 Kan. 114; Gurnsey v. Edwards, 26 N. H. 224; Parish v. Gilmanton, 11 N. H. 293. (3) The petition and report of the road commissioners were accompanied by the names of all resident .landowners. See authorities cited under proposition'2. (4) (a) The qualifications of the commissioners appointed need not appear of record but the court will be presumed to have followed the law. Sutherland v. Holmes, 78 Mo. 402; School District v. Yates, 161 Mo. App. 116. (b) Appellant having filed exceptions to the report of the commissioners in this case, the question as to the qualifications of the commissioners is out of the case. Bennett v. Hall, 184 Mo. 421; Stutz v. Cameron, 254 Mo. 358. (5) The appeal in this case was from the question of damages-only. Sutherland v. Holmes, 78 Mo. 402; R. S. 1899, sec. 9419, now Sec. 10440, R. S. 1909. (6) A benefit may be special and peculiar to a tract of land of which a part is taken, although it accrues to a number of tracts in the vicinity, where all the tracts occupy a peculiar situation with reference to the improvements, by reason of which the benefit attaches. Rives v. Columbia, 80 Mo. App. 178; Railroad v. Fowler, 142 Mo. 670; Railroad v. McElroy, 161 Mo. 587; 15 Cyc. 771; Elliott’s Roads and Streets (2 Ed.), p. 260, see. 248.
   WILLIAMS, C.

This proceeding was begun, by petition filed in the circuit court of St. Clair county, to establish a public road. The petition was filed August 3,1908, and was signed by about 60 freeholders of the municipal township in which the proposed road was to be located. Three of the petitioners -resided in the immediate- neighborhood of the proposed road.

The petition was accompanied by a list purporting to contain the names of all resident persons owning land through which said proposed road would run, together with a statement of those damaged and those who were willing to give land for the right of way. J. G-. Ripkey, appellant herein, was not one of the petitioners, but his name was in the list of resident landowners owning land through which the proposed road was to run. The .name of Thomas M. Johnson was also listed as one of the resident landowners owning land through which the proposed road would run.

Due and proper notice was given, as required by law, and, upon hearing, the county court ordered the county road commissioner to view, survey and mark out said land. Said commissioner made report to the county court and the court appointed a board of commissioners to assess the damages to the property owners who refused to relinquish the right of way. Said board of commissioners made report finding that J. Gr. Ripkey would not be damaged by tbe establishment of said road. Thereafter, and in due time, said Ripkey filed written exceptions to the report of the board of commissioners and a jury was appointed to assess his damages. Upon a hearing before the jury in the county court the jury found that he was not damaged by the proposed road. Thereafter, and in due time, said Rip-key took an appeal to the circuit court of St. Clair county.

Trial was had in the circuit court, before a jury, the jury finding that said Ripkey suffered no damage by reason of the establishment of the road. Upon the trial in the circuit court, said Ripkey filed a motion asking the circuit court to dismiss the petition for want of jurisdiction. The substantial allegations of the motion were (1) that the original petition was not accompanied by the names of all the resident, persons owning land through which the proposed road would run, in that Thomas M. Johnson, the owner of a portion of the land through which the proposed road would run, was not named as the owner of that specific tract; and that one William C. Lucas, trustee, and the St. Clair Investment Company, a corporation, beneficiary, were the owners of an interest in a portion of the land sought to be taken, but were not named as such in the list filed with the original petition; (2) the record of the county court appointing commissioners to assess damages failed to show that the three disinterested petitioners were not of kin to any of the parties asking damages on account of the location of said road and that the report of said commissioners failed to show that they were sworn, prior to viewing the premises and passing upon the assessment of damages.

The evidence tends to show that the name of Thomas M. Johnson did accompany the original petition. filed but he was not named as the owner of a certain tract of land, which it is claimed he then owned. The evidence further showed that William C. Lucas was the trustee and the St. Clair Investment Company the beneficiary in a certain deed of trust executed by said J. Gi. Ripkey and wife, prior to the institution of these proceedings, said deed of trust having been given on a portion of the land sought to be taken for the right of way and given to secure a note of said Ripkey. Said Ripkey, the mortgagor, was in possession of the premises and his name accompanied the petition. The evidence further showed that said Lucas and the St. Clair Investment Company had no further interest in said land except such interest as they might have under said deed of trust. The evidence further showed that said Lucas and the St. Clair Investment Company were not named as resident landowners in the list of such names accompanying the original petition.

The evidence on the question of benefits and damages is disclosed by the following stipulation which is copied into the abstract in lieu of a full transcript:

“It is stipulated and agreed by and between appellant and respondents that there is evidence sufficient to support the verdict of the jury that the benefits accruing tó Ripkey, appellant, from the establishment of the road will amount to more than the damages sustained, if such benefits should be offset against damages (appellant contending that such benefits are not peculiar and should not be offset). It is agreed that appellant J. Gr. Ripkey and H. P. Binns, Z. T. Croy and J. H. Curnutte, three of petitioners, are without a public road to their farms; that the proposed public road will cross the farm of Ripkey, cutting it in two, and will take approximately two acres of his land; that it will run along the side of Croy’s land and take approximately one-half acre of his land; that it will touch the corner of Binn’s land and take approximately 225 square feet of Ms land; and that it will cross the -farm of Curnutte and take approximately one acre of his land. That the benefits of the road will be the same to each of these four', i. e., an outlet on a public road.

“As to the question of damages the issue between appellant and respondents is whether the benefits above described, accruing to Ripkey, should be offset against damages caused by opening of the road, respondents contending that such benefits should be offset and appellant contending that they should not.

* “It- is further agreed that all of the remaining petitioners, save and except H. P. Binns, Z. T. Croy-and J. H. Curnutte, are on a public road and that the opening of the proposed road is not absolutely necessary to put them on a public road but the opening of this road is necessary to put H. P. Binns, Z. T. Croy and J. H. Curnutte and remonstrator J. G. Ripkey on a public road.

“It is agreed that this stipulation may be printed and considered by the court in lieu of an abstract of the testimony and evidence concermng the damages and benefits of the road.”

Said Ripkey duly perfected an appeal to this court. Statément of such other facts as may be necessary to an understanding of the legal questions involved will be made in the course of the opinion.

I. The court did not err in overruling appellant’s motion to dismiss the petition for want of jurisdiction. . The petition presented to the county court was “accompanied by the names of the resident- persons owMng land through which said proposed road” was to run, as required by section 9414, Revised Statutes 18991 (now section 10435, Revised Statutes 1909). The name of Thomas M. Johnson was in the list of names. It is true that the statement accompanying' the petition did not state that said Johnson was the owner of a certain tract through which the proposed road was to run. But a reading of the above statute will disclose that it is the names of the owners, not the description of their respective holdings affected, that is required. It is no doubt a matter of convenience and good practice to describe the land owned by each person named, but this is not made a jurisdictional requirement by the statute. Respondents ’ brief contains other well taken points ag’ainst the above contention of appellant, but, since the foregoing sufficiently answers' the contention, further discussion is deemed unnecessary.

The trustee and beneficiary in a deed of trust, as such, are not owners within the meaning-of said statute, and the failure to list them among the resident property owners did not affect the court’s jurisdiction. [Warren v. Gibson, 40 Mo. App. 469, l. c. 476. See also Benton Land Co. v. Zeitler, 182 Mo. 251, l. c. 267-272; and Sibbett v. Steele, 240 Mo. 85, l. c. 93-4.]

Neither did the failure of the county court record to state that the three commissioners were not of. kin to any of the parties asking damages, nor the failure of the commissioners’ report to show that the commissioners were sworn prior to viewing the premises, etc., supply sufficient ground'for the motion to dismiss.

The county court acquired- jurisdiction when the petition, in due form, accompanied by the names of the resident landowners, was filed and the required statutory notice given. Irregularities, if any, occurring in the proceedings in the county court after jurisdiction is once acquired will not deprive the circuit court of its jurisdiction on appeal. [Stutz v. Cameron, 254 Mo. 340, l. c. 358-9; Bennett v. Hall, 184 Mo. 407, l. c. 415-421.]

II. It is contended that there was no evidence of special or peculiar benefits which should be offset against damages sustained by the objector and that, therefore, the court erred in submitting that theory to the jnrjy. Appellant admits that there was sufficient evidence of benefits to sustain the verdict of J;he jury on the question of damages, if such benefits are to be considered as special or peculiar benefits and therefore proper items of offset against the damages sustained.

Prom the evidence it appears that the establishment of this proposed rdad would supply appellant’s farm with its only public road; that three other landowners, petitioners, would receive a like benefit; that all the remaining lands affected already connected with a public road and would not receive the same special or peculiar benefit accruing to appellant and the other three named landowners. We have reached the conclusion that, under the present facts, the above benefit was a special or peculiar one, as distinguished from a general benefit. In the case of So. Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 175, l. c. 188, in discussing the rule as to special or peculiar benefits, Burgess, J. , said: “The benefits peculiar to that portion of the property which is not taken and which are not common to the public at large, may be set off against the damages assessed for the appropriating of the property. ’ ’

In the case of Rives v. City of Columbia, 80 Mo. App. 173, l. c. 179, the rule as to special benefits, therein applied to a very analogous situation, is tersely and correctly stated by Ellison, J., as follows:

“A special benefit does not necessarily mean such benefit as is enjoyed by one piece of property. Many pieces, belonging to different owners, may be similarly situated -with reference to an improvement and yet fall far short of being all the property in the vicinity. Whenever a benefit is common to all in a vicinity, it is special to none; and it does not follow that a benefit may not be special to several without being common to all. The fact that all the property taken or injured in any given improvement receives a certain benefit does not make it a general benefit unless it is received by other property generally in that vicinity. ’ ’

III. After the court had rendered final judgment in the case, but before the affidavit for an appeal was filed, appellant asked leave to renew his motion to dismiss the proceedings on the ground that the court was without jurisdiction, in that one Francis M. Ripkey was a resident owner of an undivided one-half interest in a tract of land through which the proposed road was to run and that his name did not accompany the original petition. The request was refused and an exception saved. In said motion it was claimed that said Francis M. Ripkey owned an undivided one-half interest in certain land, being the identical land for the taking of which J. G. Ripkey, appellant, is seeking to recover damages in this proceeding. Upon the trial in the circuit court, appellant testified that he was the owner of this land.

As a general rule, questions of jurisdiction over the cause of action may be raised at any stage of the proceedings. But should this rule apply to defects of jurisdiction which do not appear upon the face of the record but which require extrinsic evidence to develop the absence of jurisdiction? We are of the opinion that it is undoubtedly the better practice that questions of jurisdiction requiring the hearing of testimony should be raised before the trial is ended, so that it may properly become a part of the bill of exceptions,' and that' error, if any, occurring with reference thereto, may be properly called to the trial court’s attention in the motion for a new trial. Without undertaking to fix a hard and fast rule in all cases, we have no hesitancy in saying that in the present case, appellant, after testifying under oath upon the trial to a state of facts which, if true., would show proper jurisdiction, should not be permitted, after the trial had ended, to file a motion raising a jurisdictional question bottomed upon alleged facts contradicted by his own testimony given under solemn oath upon the trial. The judgment is affirmed.

Boy, G., concurs.

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

All the judges concur.