author: GRAVES, J.

text:
    MONROE MINOR, Appellant, v. J. M. BURTON.
    Division One,
    May 31, 1910.
    1. QUIETING TITLE: Action at Law or in Equity: Limitations: Trespass. Whether a suit under Sec. 650, R. S. 1899, to ascertain and determine the title to real estate, is one at law or in equity, depends upon the pleadings. An issue made hy pleading the Statute of Limitations to an ordinary action under said section, is one at law, and is'triable by a jury. So also is the issue raised by a count in the petition alleging a trespass and asserting and asking for damages for timber removed and the use of the ground by cultivation.
    2. -: -: -: Injunction. And a third count in the petition praying for injunctive relief, though equitable in character, is only incidental and auxiliary to 'the other two law counts, and is wholly dependent upon the findings and a judgment on the question of title and of limitation pleaded thereto, • and hence the real issues in the case are issues at law.
    3. LIMITATIONS: Trial by Court: Substantial Evidence. A finding of fact in a law case made by the court sitting as a jury is the same as the verdict of a jury in appellate practice. And where there was substantial evidence that defendant had been in actual continuous adverse possession, under claim of title, for forty years, the finding by the judge that there had been such adverse possession as to ripen plaintiff’s claim into title will not he disturbed on appeal.
    4. -: Statements by Possessor. Statements of one in possession as to the character and manner of his possession are proper evidence against his grantee, and one to whom such statements were made can testify what they were.
    Appeal from Randolph. Circuit Court.— Hon. Willard P. Cave, Special Judge.
    Afeirmed.

      John N. Hamilton for appellant.
    (1) Plaintiff having shown that he is the owner in fee of all the southwest quarter of northwest quarter of section 10, and in actual, undisputed possession of the same, except that portion thereof in controversy, the law invests him with the possession of the whole and he can only be dispossessed by actual ouster. Stevens v. Martin, 168 Mo. 407; Bradley v. West, 60 Mo. 53; D'outhitt v. Stenson, 63 Mo. 268; Turner v. Baker, 64 Mo. 218. (2) Plaintiff having shown that he is the sole owner in fee of. the legal title to the land in controversy, the legal seizin and possession follow the title, and the defendant having failed to show any color of title other than by adverse possession and limitation, the defendant must show by greater weight of evidence and to the satisfaction of the court that he and those under whom he claims have had the actual, open, notorious, continuous, adverse and hostile possession of the land in controversy for the period limited by the statute. Sell v. McAnaw, 158 Mo. 466; ITuckshorn v. Hartwig, 81 Mo. 648; Benne v. Miller, 149 Mo. 228; Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440 ; Robinson v. Claggett, 149 Mo. 153. (3) Clearing the land in controversy and cutting and hauling fire wood and other timber therefrom, by defendant, does not constitute possession or create title, but merely tends to show claim of ownership. Defendant’s actual possession, in the absence of color of title, extends only to that part actually enclosed by him, if any. There can be no constructive possession. Allen v. Mansfield, 108 Mo. 343; Carter v. Hornback, 139 Mo. 238; Robinson v. Claggett, 149 Mo. 153; Cantlen v. Holloday, 151 Mo. 159 ; MeYey v. Carr, 159 Mo. 648; Sweringen v. St. Louis, 151 Mo. 348. (4) Although defendant or his grantors, through mistake or ignorance of the true location of the line separating his land from that of the plaintiff, and with no intention to claim beyond the true line of separation (according to the testimony of John H. Minor), may have cleared and cultivated the land beyond such line and enclosed a portion of the land in controversy; the possession thus acquired will not he adverse and work a disseizin, as it will he presumed that the intention was only to hold to the true line. Hamilton v. West, 63 Mo. 93; McWilliams v. Samuel, 123 Mo. 659; Knowlton v. Smith, 36 Mo. 507; Ernsting v. Gleason, 137 Mo. 594; Schwartzer v. Gebhardt, 157 Mo. 99. (5) Where the possession was originally friendly, as-testified by John H. Minor, to convert it into a hostile holding the intention to make the change must he distinctly made known to the true owner. Mo. L. & M. Co. v. Jewell, 200 Mo. 715; Budd v. Collins, 69 Mo. 129; Mier v. Mier, 105 Mo. 411; Comstock v. Eastwood, 108 Mo. 41; Fleming v. Kemp, 170 Mo. 235. (6) Entry and possession under a license from the owner, either oral or written, is not adverse and- cannot become the foundation of a title by limitation. Fleming v. Kemp, 170 Mo. 235. (7) There is no precise rule prescribing what constitutes adverse possession. The facts and circumstances of each case, the location, condition and purposes for which used, must he taken into consideration, and the acts of ownership must be understood as directed to them. Under the evidence in this case, the exclusive record ownership, together with the exercise of many acts of ownership and possession, including the payment of taxes by plaintiff’s grantors from 1863 to 1889 and from 1897 to the institution of this suit, conclusively show that the occasional acts of defendant and his grantors, indicative of a claim of ownership; did not and could not operate as an ouster and disseizin of plaintiff. Especially as defendant admits he never paid any taxes on the land in controversy. Hunnewell v. Burchett, 152 Mo. 611; Benne v. Miller, 149 Mo. 228. (8) Mere naked possession never ripens into title and one taking possession of land without legal or equitable right thereto is simply a trespasser. Crowl v. Crowl, 195 Mo. 338; Baber v. Henderson, 156 Mo. 566; Smith v. McCorkle, 105 Mo. 135; Wilson v. Purl, 148 Mo. 449. Prior to passage of the Act of 1869, patents for all swamp land sold by the county courts, were issued by the' Governor, countersigned by the Secretary of State and registered in the office of the register of lands, or else conveyed under provisions of a special act of the Legislature. Simpson v. Stoddard County, 173 Mo. 421; State y. Crumb, 157 Mo. 545; Pool v. Brown, 98 Mo. 675; Barton County v. Walser, 47 Mo. 189. Section 6, Laws 1869, page 67, authorized, for the first time, the county court to issue the patents to swamp lands, and prior to that time county courts did not have the power to' appoint a commissioner to convey swamp lands. Sturgeon v. Hampton, 88 Mo. 203.

      Hammett & Hoivard for respondent.
    In the year 1865, the plaintiff’s father took possession and fenced the two-acre bend in controversy, under the same fence that enclosed the rest of his farm, and from that time on continuously used the same and exercised the ordinary acts of ownership over same. He cleared about one-half an acre of the land and the same has ever since been cultivated by this plaintiff and those under whom he claims, and the possession of this defendant and those under whom he claims has never been disturbed until plaintiff brought this suit.
   GRAVES, J.

This action involves a small tract of land in Randolph county. The quantity involved is about two acres and in that portion of the south one-half of the northwest one-fourth of section ten, township fifty-three, range fifteen west, lying north of Sweet Spring Creek. The petition is in three counts. Count one is the ordinary pleading under section 650. Count two is an action for trespass, in which the damages are alleged to be one hundred dollars for cutting timber from said land, and fifty dollars for the cultivation of.a part thereof for the years 1905 and 1906, or a total of one hundred and fifty dollars. The third count, which is denominated in the petition as a “further cause of action, and as auxiliary to the foregoing, ’ ’ is one praying for injunctive relief. Under this count a temporary injunction was granted.

The answer was first a general denial, to which was coupled a plea invoking the Statute of Limitations. In this portion of the answer it is averred that in 1865 one Samuel Minor owned the eighty acres of land described in plaintiff’s petition, and Samuel Burton (father of defendant) owned the eighty acres adjoining on the north; that Sweet Spring Creek ran through both eighties, so as to throw a part of the Burton eighty south of the creek and a part of the Minor eighty north of the creek; that the said Minor, and Burton in 1865> in order to have their respective lands contiguous and all on one side of said creek, agreed to exchange the portions cut off by the creek as aforesaid, and to that end made and exchanged deeds conveying the same, one to the other; that the defendant and his grantees have been in the open and adverse possession thereof from that date to the time of the suit.

The reply denied the new matter in the answer and averred that plaintiff and his grantors had been in the open and adverse possession thereof since 1863.

A jury was waived, as shown by the record, and the cause tried before a special judge. The court found for defendant on each count of the petition, and decreed title in defendant under the first count. The temporary injunction was dissolved. After proper steps plaintiff has appealed. Points made and the necessary portions of the testimony will he noted in the opinion.

I. Valuable in the disposition of this case is the fixing of the character of the suit. The first count of the petition is one under section 650. To this count, the answer pleaded the Statute of Limitations. The issue thus made is one at law and not in equity. On this issue either party was entitled to a jury. It was for a time a mooted question as to whether or not an action under section 650 was an action in equity or at law, but we finally determined the question in the recent case of Lee v. Conran, 213 Mo. 404. In that case we concluded that the character of the suit was dependent upon the issues raised by the pleadings. If the issues thus raised are such as, at the adoption of. our Constitution, were triable before a jury, then the parties in an action under section 650 are entitled to a jury, but if the issiies raised by the pleadings .were not triable before a jury prior to the adoption of the Constitution then the parties are not entitled to a jury. The action given by section 650 is statutory, and we think the construction given in the Lee case, supra, is a reasonable one.

Reverting now to the case at bar there was no issue made by the pleadings under the first count which were not triable by a jury. The second count is one for damages alleged to have grown out of a trespass, which is a pure action at law. Thus far, the whole case is one triable by a jury, had one been demanded. The parties evidently so understood the law for the record recites that they waived a jury.

The third count, whilst equitable in character, is only incidental and auxiliary to the other counts. It is not only actually incidental and auxiliary to the other counts, but it is so alleged to be by the plaintiff. But if it were not so alleged to be, an examination of the pleadings would so show, It ig wholly dependent upon the findings and judgment under the first count. We conclude therefore that the real issues in this case were issues at law, and this will materially assist in the disposition of the only real question, which we take next.

II. In the court below, the battle was waged upon the issue of adverse possession for the statutory period. Plaintiff exhibited a paper title. Defendant made no attempt to show a paper title, but relied upon a title by adverse possession. Upon this question there was a conflict between the evidence offered by plaintiff and defendant. For the defendant there was substantial evidence of continuous adverse possession, with claim of title, of this small tract of land from the year 1865 or 1866. This was shown, not only by numerous acts of ownership, but by the a.ctual fencing of the strip of land by a fence running along the bank of the creek. The finding of the judge, sitting as a jury, upon this issue was for the defendant, and we are asked to reverse the finding of fact, nisi.

A finding of a fact in a law case made by the court sitting as a jury is the same in appellate practice as the verdict of a jury. Such finding will not be disturbed upon appeal, if supported by substantial evidence. [Vincent v. Means, 207 Mo. l. c. 713; Glade v. Ford, 131 Mo. App. l. c. 169.]

In the Vincent case, we said: “As the cause was tried by the court, a jury being waived, the same presumption is to be indulged in favor of the correctness of the finding as the verdict of a jury, and it will not be interfered with by the Supreme Court unless there be an absence of substantial evidence to sustain such finding. [Irwin v. Woodmansee, 104 Mo. 403; Godman v. Simmons, 113 Mo. 122; Gould v. Smith, 48 Mo. 43; Gaines v. Fender, 82 Mo. 497.] ’ ’

So in this case, there’ being direct and positive evidence tending to show adverse possession, we will not undertake to review and weigh the evidence upon •which the trial judge bases his finding, that there had been adverse possession for snch length of time as to ripen into an absolute title.

III. Point is made that there was error in refusing to permit a witness, John H. Minor, to testify to statements made by Samuel Burton, a former owner of defendant’s land, as to the nature of his claim to this small strip. There can be no question that the statements of one in possession as to the character and manner of his possession are proper. [Brown v. Patterson, 224 Mo. 639.]

The error complained of is predicated upon the following in the record:

“ ‘Q. • State if you know, what, if any, fence and where it was built, on the line between you and Mr. Burton, between this forty and the forty immediately north across this strip of land here in controversy. A. When he moved down there he cleaned it up and his fence come around and took in one-half acre and he didn’t know where the line was then and I didn’t either, and afterwards we come to find where the line was and I said, you can just leave it. ’

“Here counsel for defendant objected to what the witness and Sam Burton said for the reason that—

“Which said objection was by the court sustained and to the action of the court in sustaining the said objection, the plaintiff, by his counsel then and there at the time, duly excepted and saved his exceptions. ... ‘ Q. State if you know, how it was that Mr. Sam Burton cleared up and put in cultivation a small portion of this strip, of land in controversy? A. He said — ’

“Counsel for defendant here objected to what he said for the reason that . . .

“ (No ruling by the court). ■

“ ‘Q. Answer that question, if you know. A. I answer that it was through a mistake.’ ”

Taking the first excerpt from the record it will he seen that the question propounded does not call for any statements made by Samuel Burton as to how he held the possession of this strip of land. Nor does the answer to the question undertake to give what Burton said. What is said of the first excerpt applies to the second excerpt. If counsel desired to show what the elder Burton said as to the character of his possession, the question should have been so directed.

Other assignments of error are not of sufficient importance to require notice. Upon the record the judgment should be affirmed and it is so ordered.

All concur.


source: Caselaw Access Project

author: LAMM, P. J.

license: Public Domain

text:
    OLINDA V. ADAMS, MARY V. SWAIN, ROSALIND Z. ADAMS and GENEVIEVE LESTER, Appellants, v. JAMES H. GOSSOM, ALVINA T. GOSSOM and DOE RUN LEAD COMPANY.
    Division One,
    May 31, 1910.
    1. AMENDED ABSTRACT: Nunc Pro Tunc Entry. Where the original abstract showed no record entry of the £ling of a bill of exceptions, and respondent’s counter abstract showed no entry was made, and leave was granted appellant to apply to the trial court for such mino pro tuno order, and such application was made and granted on sufficient data, and the supplied entry has been brought up by an additional abstract by appellant, the exceptions will be reviewed.
    2. TAX DEED: Suit Against Deceased Owner. A tax deed, executed by a sheriff under a judgment rendered against a deceased person, does not convey the title of his heirs, even though he had for years been the owner and the taxes were assessed against him after his death.
    3. -: -: Limitations: Equitable Title. Adverse possession of land for the statutory period of limitations, under a . deed and a claim of ownership, although the deed is not recorded, and the grantee therein held only an equitable title, since the possessor paid the consideration, not only bars a recovery of the land by others, but it confers title on the possessor. So that where James paid for land in 1864, and took a deed to his brother John and thereafter James went into possession and exercised unequivocal dominion and ownership for ten years or more, the title was vested in him. John had only an equitable title, and James having paid the consideration-, a resulting trust arose instantly in James’s favor, and the fact that the deed was not recorded until after a tax suit brought against James subsequently to his death does not affect the title of his heirs, or give to the purchaser at such tax suit any additional right.
    4. -: Record Owner: Sale of Interest of Actual Owner: Innocent Purchaser. Adams acquired title in 1864 from Stay, but deed was not recorded till 1905, and Stay remained apparent record owner, and when tax suit was brought against both, Adams was dead and perhaps Stay also. The judgment, execution and deed named Adams as owner, and conveyed his interest. Sold, that defendant, who was the purchaser at the tax sale, will not be heard to deny that Adams, though his heirs were not in possession at the time, was the actual owner, for his own muniments of title all proclaimed to him that he was, and put him on inquiry to ascertain the fact. His plea of innocent purchaser will not, therefore, avail.
    5. -: Quieting Title: Former Suit. A former suit by defendant to quiet title, to which plaintiffs were not made a party, is no bar to their subsequent suit.
    6. -: Tender of Taxes. The Act of 1903, Laws 1903, p. 254, requiring the tender by plaintiff of taxes paid by defendant as the price of plaintiff’s recovery against a tax deed, does not apply to tax sales made prior to its passage.
    Appeal from St. Francois Circuit Court. — Hon. Charles A. Killian, Judge.
    Reversed and remanded (with directions).

      Thomas L. Anderson and Henry H. Oberschelp for appellants.
    (1) Although the deed named John B. Adams as the grantee, when this property was purchased in 1864 from Joseph Stay, yet the absolute equitable title vested at once in James F. Adams, plaintiffs’ husband and father, because he was the man who bought the property. He bought it with his own money and his brother had nothing to do with the affair. Bank v. Fife, 95 Mo. 128; Richardson v. Champion, 143 Mo. 543; Bispham’s Principles of Equity (5 Ed.), p. 133, sec. 79. (2) Regardless of what was the nature of the interest as first acquired, the absolute legal title by reason of adverse possession for the statutory period, had vested in said James F. Adams and his heirs, these plaintiffs. R. S. 1899, sec. 4262; Bank v. Fife, 95 Mo. 126; Watt v. Donnell, 80 Mo. 198. (3) This title by adverse possession covered the entire one hundred and twenty acres. R. S. 1899’, sec. 4266; Plaster v. Gabreel, 160 Mo. 674; Rannells v. Rannells, 52 Mo. 108; Hughes v. Israel, 73 Mo. 538. (4) This title acquired by adverse possession for the statutory period is in every way as good for purposes of attack or defense as a title by deeds running back to the Government. Scannel v. Soda Fountain Co., 161 Mo. 618; Kirton v. Bull, 168 Mo. 633. The law requires the tax suit to be brought against the real owner. R. S. 1899, sec. 9303; Watt v. Donnell, 80 Mo. 195; Stuart v. Ramsey, 196 Mo. 404. (6) As James F. Adams was. dead at the time of the bringing of the tax suit, the judgment was void and the sale under the execution conveyed no title whatever. Perkinson v. Meredith, 158 Mo. 457; Gage v. Cantwell, 191 Mo. 698. (7) Defendants tried to sustain their defense on the contention that Joseph Stay was the record owner, and that there was no notice as to who were the real owners. But that position is not tenable, because there was ample notice that James F. Adams had become the owner, (a) Any facts and circumstances coming to his knowledge that would put a man of ordinary circumspection on inquiry will suffice as actual notice. Stuart v. Ramsey, 196 Mo. 415. (b) Defendant was conscious of means of ascertaining the ownership and did not use them as an ordinarily prudent and diligent purchaser would have done and is therefore regarded as having had actual knowledge. Taafe v. Kelley, 110 Mo. 127; Memphis Assn. v. Arnett, 169 Mo. 212. (e) The long continued, open and notorious possession of the land hy James F. Adams and his heirs stands for notice. St. Joseph v. Baker, 86 Mo. App. 310; Vance v. Corrigan, 78 Mo. 95; Watt v. Donnell, 80 Mo. 198. (d) The defendant Gossom, purchaser at the tax sale, and the other defendants through him, are charged with notice of everything contained or recited in the recorded deeds which constitute the chain of title under which they hold, and the very deed hy which he acquired the title, the sheriff’s deed, informed him of James F. Adams’ ownership of the property. McDonald v. Quick, 139 Mo. 498; Patterson v. Booth, 104 Mo. 402; Mason v. Black, 87 Mo. 329. (e) As the collector had information sufficient to put him on inquiry as to who the real owner was, it was necessary to bring the suit for hack taxes against the real owner and not the record owner. Joseph v. Baker, 86 Mo. App. 310; Stuart v. Eamsey, 196 Mo. 415. (8) Notice of the real owner was immaterial in this case, or, rather, was conclusively presumed against the defendants, because the very deed hy which defendants claim their title, the sheriff’s deed, and also all the proceedings on which that deed was based, solemnly adjudged and declared James F. Adams owner. McDonald v. Quick, 139 Mo. 498; Patterson v. Booth, 104 Mo. 402; Mason v. Black, 87 Mo. 329. (9) Even if Joseph Stay were the record owner, and even if the tax proceedings were regular as to Joseph Stay, yet defendant could have gotten no greater interest than if he had purchased the property directly from Stay. That interest would have been nothing, because the absolute title hy adverse possession for the statutory period had been acquired by James F. Adams and his heirs, these plaintiffs, which cuts off all interests of the record owner and those claiming hy, through or under him, irrespective of how the title by adverse possession arose. Yance v. Corrigan, 78 Mo. 97; St. Joseph v. Baker, 86 Mo. App. 316; "Watt v. Donnell, 80 Mo. 198.

      Jere 8. Gossom for respondents.
    Section 3150, R. S. 1899, provides that the parties named in the deed shall be presumed to be the owners, and Stay, one of the parties sued, ■ was the record owner, and the judgment was certainly valid as to him and, therefore, passed the title. Lucas v. Land & Cattle Co., 186 Mo. 456; Schnitger v. Rankin, 192 Mo. 35; Land & Mining Co. v. Land & Cattle Co., 187 Mo. 421; Wilcox v. Phillips, 199 Mo. 288. A careful perusal of the record will show that the tax purchaser had no notice whatever of the claim of John B. Adams, or that of plaintiffs. The court found against them on the question of limitation, on any title that they might have thought they had by virtue of their possession, because it is clear that they were not holding adversely to the world; then they bought ten years after the tax sale, and recorded, at the same time the unrecorded deed to John B. Adams was recorded, a deed from the heirs of John B. Adams. Stuart v. Ramsey, 196 Mo. 404.
   LAMM, P. J.

>James F. Adams died in 1878 leaving a widow, Genevieve (intermarried with Lester), and three children, Mary (intermarried with Swain), Rosalind and Olinda. These children and their mother, on August 31, 1905, sued Gossom, his wife and the Doe Run Lead Company to quiet title under section 650’, Revised Statutes 1899, in the St. Francois Circuit Court, claiming to own the real estate described in their petition situate in St. Francois county, Missouri, viz., the north half of the southwest quarter and the southwest quarter of the southwest quarter of section 13, township 38, range 5. There was a second count in ejectment, alleging that defendants were in possession. Judgment going for defendants, plaintiffs appeal.

Plaintiffs claim title as widow and heirs of James F. Adams and by quitclaim from the heirs of John B. Adams and by adverse possession which, they say, ripened into title as against the whole world. On the other hand the defendant James H. Gossom admits possession in himself and claims title through certain tax proceedings reinforced by a subsequent decree in a suit brought to clear up and perfect the title acquired at the tax sale. The defendant Doe Run Lead Company claims a two-year option to buy Gossom’s title on condition- that it prove perfect. It alleges by its answer that it was not a proper party to the suit, “has no interest in the title, ’ ’ and asks to be discharged from “further litigation.”

In the answer of Gossom and wife it is alleged, inter alia, that plaintiffs by long continued silence and failure to assert their claims and give the defendants any notice of it, either actual or constructive, have been guilty of gross negligence and laches and have estopped themselves.

Any other facts necessary to the determination of the ease will appear in the body of the opinion.

I. The original abstract made no showing of a record entry of the filing of the bill of exceptions. Respondents filed a counter abstract, showing no entry was made. At a former’ term we granted leave to appellants to apply nisi for such nunc pro tuno order, if the data existed warranting it. Acting on the leave, a successful application on that score was made below, and the supplied entry was brought here by an additional abstract by appellants. Respondents make the point that, absent a record entry showing the filing of a bill of exceptions, there are no exceptions to review. But whatever merit at one time in that view is now gone. Sufficient record has been supplied in a way according -with the practice of the courts. [Ross v. Railroad, 141 Mo. 390; Reed v. Colp, 213 Mo. l. c. 586 et seq.] We rule, therefore, that the case is here on its merits.

II. Plaintiffs’ title runs as follows:

(a) . A warranty deed from Joseph Stay and wife, of date October 5, 1864, to John B. Adams, conveying the land in dispute, consideration $250', duly acknowledged. This deed was not recorded until July 3, 1905, in St. Francois county.

(b) . A quitclaim deed, of date April 21,1905, from the heirs of John B. Adams to appellants, conveying the premises in consideration of one dollar. This deed was recorded in St. Francois county on the same date as a, and was acknowledged in Massachusetts where grantors resided.

(c) . A warranty deed from William Lambourne and wife to Joseph Stay, recorded on April 30,1864, acknowledged on May 20, 1862, conveying the premises. Consideration $190.

(d) . The record of a patent from the United States government conveying the land1 to John Nash, dated in 18591, and recorded in 1864.

Oral testimony, practically undisputed, tended to show that John B. Adams resided at Springfield, Massachusetts, and died in 1894, intestate; that his widow is dead; that John B. was a brother of James F. Adams who formerly lived in St. Francois county, Missouri, at Valley Mines; that the grantors in b were the only heirs of John B.; that James F. Adams in 1864 lived in North St. Louis; that in that year he bought with his own money the land in dispute from Joseph Stay and took warranty deed a in the name of his brother John B.; that James had the money by him 1 in his house at the time and it was there paid over to Stay m the presence of witnesses; that-from that'day to this the deed has been in the possession, first of James and, on his death, of his family; that at that time Stay was a gray-headed man (over sixty years of age); that James P. Adams moved on the land (then naked and wild, we infer) in the sixties with his family, pnt np buildings, did fencing, planted an orchard, cultivated fields, and having lived there for over ten years claiming to own it, died on the place and was buried in a private neighborhood graveyard; that his widow continued to live there with her three little girls for two years after her husband died, then moved to St. Louis in October, 1880, and thereafter for ten years paid all the taxes. When she moved away she left a tenant in possession. She was unable to make a living on the farm with only her little girls to manage it, and moved back to St. Louis on that account. She collected no rent and was unable to send_ any one back to look after it. There- was also testimony tending to show that John B. Adams never knew the title was taken in his name or knew of the deed. The children of James P. Adams, suing here, were born on the farm. There was some evidence that the widow, in her perplexity, quit paying taxes, planning thereby to eventually get a record title in her own name through tax proceedings. Supposing she would be notified of the tax sale and hearing nothing, she eventually ascertained by letter that the land had been sold. On that information in 1903, appellants employed an attorney in St. Louis, Mr. Pitzer, to recover the land. Mr. Pitzer sought out the defendant, James H. Gossom, who seems also to reside in St. Louis. Gossom claimed the land under a tax sale, and on behalf of appellants Pitzer tendered him taxes paid and his bid, gave him notice of plaintiffs’ claim, and that, unless the proposition was accepted and a quitclaim made, they would sue. Mr. Gossom said he would consult his attorney and do as he advised, telling Mr. Pitzer that he, Pitzer, would hear from him as soon as he heard from his attorney. Not hearing from Gossom, Mr. Pitzer presently discovered that he had instituted a suit to quiet title. To this suit appellants were not parties. Afterwards appellants filed a bill in equity to set aside the tax sale, but dismissed that and instituted the present proceeding. It appears also that Joseph Stay, grantor in a, was traced as a resident of St. Louis until the year of 1867 and then all trace of him was lost. Tax receipts were introduced in evidence from the year 1869 to 1890, inclusive, made out in the name of James F. (or J. F.) Adams. It was also shown that the land was assessed to J. F. Adams from the year 1867 down to and including 1895, and when sold in 1896 for taxes it was still so assessed. A witness, Richardson, also put on by plaintiffs, testified that twenty-eight or thirty years ago he lived close to and knew the Adamses; that at the time Mrs. Adams was living on the land with her husband and family, they had a house, barn, some land cleared up, fencing, some land in cultivation and an orchard, and called the land theirs. They were in possession exercising ownership over it and Mr. Adams claimed to own it. The witness had worked for him and he told witness of improvements he was going to make; that the widow lived there two or three years after Mr. Adams died; that there was nothing on the land now, the house was torn down and carried away and the fences burned. It is not in cultivation now and nobody lives there. The place was always known as the Adams place in the neighborhood.

Defendants put on two witnesses, named Aubuchon, whose testimony agrees with Richardson’s in all material points. Both of them testified to the effect that Mr. Adams lived there and claimed to own the land; that after the widow moved away the improvements disappeared and no one now lives there. There was testimony that the land was worth, then and now, about one dollar an acre, barring a prospective mineral value existing then and now.

Plaintiffs also introduced the sheriff’s deed under which Gossom claims (presently referred' to), and also put in an option contract between defendant James H. Gossom and his co-defendant, the Doe Run Lead Company, hearing date April 15, 1905. But under the pleadings and facts disclosed it will not he necessary to set forth the terms of the option since the Doe Run Lead Company must stand or fall oh Gossom’s title and defendants do not contend otherwise in their briefs.

The facts relied upon by Gossom to sustain his claim are about as follows:

1. A sheriff’s deed acknowledged May 22, 1896, and recorded on June 12, of that year, purporting to convey the title of Joseph Stay and J. F. Adams to James H. Gossom. It recites a tax judgment rendered in November, 1895, against said Stay and Adams for the sum of $15.16 for the taxes for the years 1891 and 1892; that by virtue thereof the sheriff levied upon and seized said real estate, made advertisement of his sale and on May 14th of that year sold to Gossom all of said real estate that he might sell as sheriff by virtue of the aforesaid execution.

2. The sheriff’s notice of the execution sale reciting that the sheriff levied upon “all the right, title, claim, interest and estate of the said Joseph Stay and J. F. Adams of, in and to the following described real estate,” describing the land in question, and that he would on May 14, 1896, sell at public auction to the highest bidder for cash, all the right, title, claim, etc., of said Joseph Stay and J. F. Adams in and to said described real estate.

3. The petition in the tax suit alleging, among other things, that Joseph Stay and J. F. Adams are the owners of the land. To the petition was appended an affidavit that they were non-residents.

4. The order of publication in the tax suits was directed to Joseph Stay and J. F. Adams, who were notified that unless they appeared at the next term of court judgment would be rendered against them on the land for certain taxes. This was supplemented hy the judgment in the cause reciting that the allegations in the petition are found to be true.

Over the objection of plaintiffs, defendants were permitted to introduce an order of publication at the May term of the St. Francois Circuit Court in 1904, in a suit entitled', “James H. Grossom, plaintiff, v. the Unknown Heirs and Representatives of John Nash, deceased, and the Unknown Heirs and Legal Representatives of Joseph Stay, deceased, and Sarah Stay, his wife, deceased, defendants,” and1 the judgment in said cause. The objection lodged against such record evidence was that these plaintiffs were not parties to that suit. The record at this point shows as follows:

“Defendants’counsel, Mr. Huff, said: ‘Of course this couldn’t affect them adversely as far as their interest is concerned, but I want to show the extent of this suit to quiet title, want to show whose interests were adjudicated.’

“The court allowed the evidence to show whose interests were adjudicated, to which ruling plaintiffs duly excepted and saved their exceptions.”

It will not be necesssary to encumber the opinion with the order of publication or the judgment last referred to. Suffice it to say that the object of the suit was to quiet title. It was on constructive service and appellants were not parties.

The tax attorney, Mr. Pipkin, was called by defendants and testified that he brought the tax suits against the “record owner,” that he made Adams a party and may have done so because his name appeared on the tax books. Mr. Turley was collector at the time and testified vaguely that he remembered bringing a suit against some land assessed to Adams. He knew nothing about ownership or the adverse claim of anybody, knew the land was assessed to Adams and used to know Adams but was unable to find anyone to pay the taxes.

The defendant Gossom took the stand in his own behalf, and testified that he knew nothing about Adams’ adverse possession of the land, never heard of sneh a claim. It seems he owned other land in the neighborhood and. he authorized a man who lived on this other land to rent the locus in quo, or to use it as he saw fit. This man seems to have been general agent to rent and sub-rent all Gossom’s land, including the land in suit. Later he put a Mr. Carsteel in possession in the same way, that is, Carsteel lived on adjoining land and supervised' all of Gossom’s land. The first notice witness had of plaintiffs’ claim was from Mr. Pitzer. Witness never knew Adams and up to the time Pitzer talked to him he never knew any such man had a claim on it, did not examine the title at the time he bought at the tax sale, but had an abstract made after the talk with Pitzer and, as his (Pitzer’s) clients did not appear on the abstract, witness paid no further attention to it. Witness brought his own suit to quiet title because Nash hád never transferred the land. Brought it after Pitzer talked to witness. Witness never lived on the property, but he put his tenants- in possession of all of it. Did not know what Mr. Carsteel had done, all the witness did was to pay the taxes. He had received no separate rent for the land in question.

There was no testimony directed to rental values and the court below did not direct its findings to the issues on the second count in ejectment, but found generally for defendants and decreed that plaintiffs take nothing by their suit, that the title was well vested in James H. Gossom in fee simple; that the Doe Run Company had an option from Gossom to purchase the land on the terms prescribed therein.

On such record can the judgment stand? We think not. This because:

(a). The laws of men deal with the quick and not with the dead. On the death of James F. Adams his heirs and widow took his title by descent cast. At the time of bringing the tax suit, James F. Adams was dead. His heirs and widow conld not be sued and precluded vicariously. There was due them, by the law of the land, a day in court. As they were not parties to that proceeding it must be held that the judgment and deed are a nullity both as to Adams, dead, and his heirs, alive.

(b). The next query is, did Adams have title? As between him and his brother John B. it is plain that he held an equitable title from the start. He paid the consideration for the land out of his own pocket and a resulting trust arose eo instanti in his favor on that account on the status of facts disclosed on this record. So much is clear law. But this is not all. As against his brother his good title in equity presently united with a1 good legal title by the Statute of Limitations. He took and held possession under a claim of right, his possession was adverse, open and' continuous for more than ten years. It was pronounced and notorious, earmarked by unequivocal acts of domination and ownership in improving the land, thereby fitting it as a home for himself and family. The world knew of his claim and possession and recognized it. The tax officers of St. Francois county knew of it. They assessed the land1 to him as owner in obedience to the commands of the law requiring assessments to be so made, and these governmental agencies collected tribute from him as owner. Whatever may be the rule in other jurisdictions, in Missouri adverse possession of the character indicated is both a sword and a shield. It not only creates a bar but confers title to, real estate. [Kirton v. Bull, 168 Mo. l. c. 633.] “A title acquired by adverse possession under our statute is in every respect as good for purposes of attack or defense, as a title by deeds running back to the Government.” See Valliant, J., in Scannell v. American Soda Fountain Co., 161 Mo. l. c. 618, and see also cases cited. Moreover plaintiffs reinforced their equitable title and their legal title acquired by the Statute of Limitations with a deed from the heirs of John B. Adams, conveying whatever technical and dry legal title was cast on them at his death. ITp to this point, then, we find no difficulty in granting plaintiffs relief because of the mere fact that the deed from Stay to Adams, unrecorded when the tax suit was brought, put the title in John B. Adams instead of James F. Adams.

(c). The proposition just ruled in paragraph h relating to the acquisition of the title by adverse possession by James F. Adams, as between him and his brother John, applies equally as well to the acquisition of a title by adverse possession by James F. Adams against Nash, the original entryman and patentee, and his heirs. So far as this record discloses, there was no deed from Nash to Lambourne who conveyed to Stay in 1862. In the view we take of it, James F. Adams acquired title by limitations against Nash.

Furthermore it is self-evident that a possession ripening into title makes the title good as against the whole world as a general proposition. Of course there may be some peculiar features of a given case interrupting or suspending the running of the statute on behalf of some one particular hostile claimant which would make a title by limitations (good as to other claimants) inoperative as to him. But there are no such features in this case. This brings us to the main question which is: Assuming it be settled law that the owner of land may lose it by execution sale because his deed or title is not spread of record, and the tax proceeding is leveled against the apparent record owner, then who has the better title from that point of view? The principles of law determinative of that question center about another, vis: Was the purchaser at the tax sale, Gossom, an innocent purchaser, that is, was he without notice of Adams’ claim of title? To the consideration of those questions, we pass.

(d). It is contended on behalf of defendants, that the tax suit was'properly brought against Stay, the apparent “record owner” and that as to him the judgment was good and conveys a title to Gossom superior to plaintiffs’ because, they argue, Gossom had no notice of plaintiffs’ claim or title. Attending to this view of the case there was testimony of some value tending to create a presumption that Stay himself was dead at the time the tax suit was begun and constructive service, through newspaper publication, was made: If Stay and Adams were both dead when the tax suit was begun, then Gossom did not get even the title of Stay, the apparent “record owner,” through his tax deed. In this connection it will do to say that some years later Mr. Gossom, himself, proceeded on the theory that Stay was dead at the time of the tax suit; for he instituted his suit to quiet title against Stay’s unknown heirs. But we need not pursue this feature, nor allow the case to break on that point.

Assuming for the purposes of the case the most favorable view possible to the respondents, viz., that Stay was alive when the tax suit was begun and alive when it finally culminated in a judgment, a sale, and sheriff’s deed to Gossom, can the latter maintain his position that he was an innocent purchaser without notice of the claim, and title of Adams in his lifetime and of Adams’s widow and heirs after his death?

In the solution of the problem presented by that question a preliminary observation is not amiss, viz: If the possession of Adams, of the character herein-before set forth, had been continued on down to the date of the tax suit and sale, it could hardly be contended that Gossom had no notice of their claim and title. Such visible and notorious possession, coupled with such open indicia of domination and ownership, in and of themselves, are notice sufficient to put a purchaser on inquiry, and a purchaser by a sheriff’s deed in the face of such notice loses the charm of innocence, if he makes no inquiry after being put on the scent and trail of the truth. A purchaser at a tax sale, put on inquiry, who goes to sleep and makes none is no longer innocent. The law favors the diligent, and slumber is not equivalent to innocence in the practical administration of justice. It is gross negligence. Great neglect is equivalent to fraud (Magna culpa dolus est, as the maxim runs). Such purchaser takes subject to the title and equities of those in possession flying a flag of ownership and planting themselves under the folds of that flag. [Maupin v. Emmons, 47 Mo. 304; Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. 292 et seq; Stuart v. Ramsey, 196 Mo. 415 l. c. et seq; Shaffer v. Detie, 191 Mo. l. c. 393 and cases cited.]

In the Shaffer case we ruled: “We assume appellant’s contention is based on the doctrine that under our registry acts a deed should be recorded in order to impart notice. But visible possession of real estate, with acts of dominating control, improvements, the continuous cultivation of the land, etc., are as potential in imparting notice of a claim of title as the record of a deed. One may not be allowed to blindfold himself to the visible indices of ownership, such as abound in this case, and say that he had no notice. To this effect has always been the law in Missouri. [Bartlett v. Glasscock, 4 Mo. 62; Davis v. Briscoe, 81 Mo. 27.] And such is the general doctrine. [2 Dev. on Deeds (2 Ed.), secs. 760 and 769.] The possession of J. C. Morehead was continuously perpetuated down to the day of the trial, under the chain of title relied upon by respondents, and it became either actual notice or put appellant on inquiry and he is impaled on either horn of the dilemma. ’ ’

Now in the case at bar the visible possession of the Adamses was not continued on down to the date of the suit, but was broken and interrupted for a considerable time. Under such, circumstances we are not prepared to rule that their stale sometime possession, in and of itself and without more, was sufficient to put Gossom upon inquiry. From what presently appears the precise point is not necessary to the case. It is therefore reserved until presented as decisive in some appeal.

But in our case Gossom had notice of Adams’ title and estate by the very proceedings under which he bought. Adams was owner in fact. He was notified by publication as owner. He was sued as owner. The judgment proceeded against him as owner. The sheriff’s notice of sale proclaimed to all purchasers that Adams’ interest had been seized by an execution levy and was about to be sold. Gossom’s bid was for Adams’ interest and his sheriff’s deed purported to convey it to him. Gossom entered into possession under that deed and therefore held possession on the theory that he had acquired title from Adams. Under such circumstances he could not be allowed to claim that he had no notice of Adams’ title and claim. He was' plainly put on inquiry and must be held to know what such inquiry, reasonably and diligently pursued, would have resulted in finding out. Under such circumstances knowledge is imputed to one who had the means of knowing at hand and the recitals of his title papers are somewhat in the nature of an estoppel upon him to deny Adams’ title. [Wade on Law of Notice (2 Ed), secs. 308 and 309’.']

That law-writer sums up the general doctrine in this way: “As a matter of fact a purchaser of real estate may be totally ignorant of the recitals in his own deed; yet every recital of a fact affecting the title to the premises, contained in such deed, will be presumed to be known to such purchaser, and he will be affected with notice thereof in the same manner and to the same extent as though he had actual knowledge. Therefore it may be said that notice derived from the recitals of a deed to a purchaser is actual, though it clearly rests upon a presumption of law. It may be called actual, however, in the same sense that a written notice delivered to a party who never reads it may be called actual notice.”

Speaking of notice in Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. l. c. 292, we said through Sherwood, J.: “Notice in this connection does not mean positive information brought directly home to the party sought to be charged. Anything which will put a prudent man upon inquiry is notice. And gross negligence in failing to make inquiry when the surrounding facts suggest the existence of others and that inquiry be made, is tantamount in the courts of equity to notice. [Major v. Bukley, 51 Mo. 227; Leavitt v. LaForce, 71 Mo. 353; Roan v. Winn, 93 Mo. 503.] This is the universally prevalent doctrine of courts of equity in all jurisdictions. [2 Pomeroy on Equity Jurisprudence (2 Ed), sees. 596, 597, 598 599, 600 et seq.] And actual notice may be inferred from circumstances and by reasonable deductions therefrom. [Ibid.; Brown v. Volkening, 64 N. Y. 76.] Courts of equity, since their earliest foundation, have always recognized that the still, small voice of suggestion, emanating as it will from contiguous facts and surrounding circumstances, pregnant with inference and provocative of inquiry, is as potent to impart notice as a presidential proclamation or an army with banners.”

At worst Adams’ title was on the foot of an unrecorded deed, and it is settled doctrine that a purchaser at a tax sale, who has notice of an unrecorded deed, takes subject to the rights of the grantee in such deed since he stands charged with the knowledge that the apparent record owner was not the real owner. [Stuart v. Ramsey, 196 Mo. l. c. 414-5; Harrison Machine Works v. Bowers, 200 Mo. l. c. 232 et seq.; Zweigart v. Reed, 221 Mo. l. c. 43 et seq.] It is sound to reason from similar to similar, for the precept is, concerning similars, the judgment is the same.

We rule, then, that Gossom bought with notice of the .title of Adams. As the tax judgment was void as to Adams and his heirs, the ruling just made means that the case was wrongly decided, nisi.

(e) . The subsequent suit instituted by Gossom against the unknown heirs of Nash and Stay availeth him naught. Whatever title Nash had was lost by him, the Statute of Limitations running in favor of Adams. Not only so but Gossom concedes that at the time he brought that suit he had notice of Adams ’ title and this included the unrecorded deed from Stay to John B. Adams with a resulting trust in favor of James P. Adams. He did not make the heirs of James P. Adams a party to his suit to quiet title. Not being parties, the maxim, Things done between strangers ought not to injure those who are not parties to them (Res inter alios acta, etc.), controls.

(f) . We perceive no laches or estoppels against plaintiffs. Laches is an equitable doctrine proceeding regardless of the Statute of Limitations to do equity and is only applied to work out equitable results. As the facts do not warrant the application of that doctrine, the allegations relating to it in Gossom’s answer are put aside.

(g) . Plaintiffs amended their bill at the trial by tendering Gossom’s bid and the taxes he paid on the land since his purchase. Defendants made no proof as to the payment of subsequent taxes and asked nothing on the tender.

The amendment to the answer was presumably under the Act of March 6, Laws of 1903, p. 254, entitled, i,!An Act Relating to Setting aside of Tax Deeds.” Doubtless the tender misconceives the scope of the act. It has been ruled that the act does not apply to tax sales made prior to its passage. That it looks alone to the future and is in no sense retrospective. [Petring v. Current River L. & C. Co., 111 Mo. App. 373; Haarstick v. Gabriel, 200 Mo. l. c 244 et seq.; Manwaring v. Company, 200 Mo. 718.] Hence if we reverse and remand' it will not be necessary, in order to accomplish equity, to take into consideration the tender as the price of plaintiffs’ decree.

The premises considered, it is manifest that the judgment is for the wrong party. Accordingly it is reversed and the cause is remanded with directions to enter judgment on the first count of the petition in favor of plaintiffs, decreeing and vesting title in 'them as against defendants. Absent any proof as to rental values or damages, the judgment on the second count should be for a nominal rental value and damages. We therefore direct the lower court to render judgment for possession in favor of plaintiffs and against the defendant, James H. Gossom, for one cent damages and one cent rental values and to award a proper writ to enforce the judgment. Costs to go against the defendant, James H. Gossom.

All concur.


author: WOODSON, J. YALLIANT, J.

text:
    LEON KAHN v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant.
    Division One,
    May 31, 1910.
    1. CONSTITUTIONAL OR FEDERAL QUESTION: Raised After Default: Too Late: Appellate Jurisdiction. A failure to raise a constitutional or Federal question until the next term after defendant was required to plead and until default aftér judgment rendered at that term, makes the raising of such a question thereafter, in the motion to set aside, too late; and the judgment being for $1055.30, and there being no constitutional or Federal question that can he considered, the Supreme Court has no jurisdiction of the defendant’s appeal.
    2. ' AMENDING RETURN: Relation: Time to Plead. Courts will permit an amendment to the sheriff’s return of a writ of summons to correspond with the facts of the case; and if the amendment he made even at a subsequent term, the return will relate back to the proper return date; and whén the return is made, and thereupon defendant’s motion to quash is overruled, it becomes defendant’s duty to plead at the term at which his motion is overruled.
    3. -: -: -: Judgment by Default: Constitutional or Federal Question: Raised in Motion to Set Aside: Too Late. Where defendant at the October term filed a motion to quash the sheriff’s return, and the court, without notice to defendant, overruled the motion and permitted the sheriff to amend his return, it became defendant’s duty to plead at that term, and at that term, if the case involved a Federal or constitutional question, it was defendant’s duty to raise it; but where defendant raised no such question at that term, or the next until after judgment by default, and at the next, after judgment by default had been rendered upon a judgment of a court in the Indian Territory, defendant filed a motion to set the same aside, on the ground that the court never acquired jurisdiction over defendant because of the defective service and return, and also because under the Constitution and Federal statutes plaintiff was not entitled to judgment, these Federal and constitutional questions were not timely raised, and the Supreme Court, because of them, does not acquire jurisdiction over defendant’s appeal from the judgment overruling his motion to set aside.
    4. SHERIFF’S RETURN: Amendment: Defendant's Right to Notice. The court has power to permit the sheriff to amend his return to harmonize with the facts, without notice to the defendant. It is the service of the writ and petition upon defendant, and not the return, that gives the court jurisdiction over the person of defendant. The return is merely the evidence by which the court is -informed that the defendant has been served. If the original return was a false return, the court has the right, under the statute, to permit the sheriff to amend it, without notice to defendant. [Overruling, on this point, Little Rock Trust Co. v. S. M. & A. Ry. Co., 195 Mo. 1. c. 689.]

      BeU, by YALLIANT, J., concurring, that the allowing of an amendment to a return being a matter in the sound judicial discretion of the court, and the statute which authorizes it not expressly requiring notice of the application to amend, the question of requiring notice is also within the sound judicial discretion of the court, and, therefore, if, in a given case, the trial court has allowed the return to be amended without notice, the ruling will not on appeal be held to be error, unless under the facts, the appellate court is satisfied the discretion was not judicially exercised and injury probably resulted. And where defendant entered a limited appearance for the purpose of moving to quash the return, as was the fact in this case, defendant was hound to take notice of what the court did with its motion and of its rulings on the sufficiency of the return, and its rulings on the motion being based on the amendment, defendant had notice and the court did not abuse its discretion.

      Held, also, that the practice of allowing a sheriff to amend his return has gone further than was originally contemplated, either by the General Assembly or by this court, and has reached a condition that calls for legislation to put a reasonable limit to the time in which an amendment should be allowed, and to require notice if the party to he affected is within reach.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Transferred to St. Louis Court of Appeals.

      Barclay, Shields & Fauntleroy for appellant.

      Lee W. Grant and P. B. Kennedy for respondent.
   WOODSON, J.

The plaintiff instituted this suit July 14, 1905, against the defendant, in the circuit court of the city of St. Louis, based upon a judgment of the United States Court within and for the Southern District of the Indian Territory, for the sum of $1010.30.

Upon the same day a summons in the usual form was duly issued by the clerk of said court, returnable to the October term, and delivered to the sheriff of said city for service. Upon the same day said sheriff made the following return (Formal parts omitted) :

“Served this writ in the city of St. Louis, Missouri, on the within named defendant, the Mercantile Town Mutual Insurance Company (a corporation), this 14th day of July, 1905, by delivering a copy of the writ and petition as furnished by the clerk to J. W. Daugherty, manager of the said defendant corporation, he being in said defendant’s usual business office and in charge thereof. The president or other chief officer of said defendant could not be found in the city of St. Louis at the time of service.”

.Thereafter, at the October term, 1905, of said court, said defendant filed its (special and limited) motion to quash said return, for the reason that it is insufficient in law and does not confer jurisdiction over the person of the defendant.

While said motion to quash was pending, and without notice to defendant, the court, on October 13, 1905, at the same term, permitted the sheriff to amend his return by interlineation so as to read as follows (Caption and signature of sheriff omitted):

“Served this writ in the city of St. Louis, Missouri, on the within named defendant, the Mercantile Town Mutual Insurance Company (a corporation), this 14th day of July, 1905, by delivering a copy of the writ and petition as furnished by the clerk to J. W. Daugherty, manager of the said defendant corporation, he being in said defendant’s principal office and in charge thereof. The president or other chief officer of said defendant could not be found in the city of St. Louis at the time of service.”

Thereafter, but upon the same day, the court overruled defendant’s said motion to quash.

On December 4, 1905, during the December term of said court, the court rendered judgment by default in favor of the plaintiff and against the defendant for the sum of $1055.30, the amount of the judgment, interest and costs due on the said Indian Territory judgment.

During the same December term of said court, the defendant filed therein the following special motion to set aside said default and judgment (Formal parts omitted):

“Defendant (appearing specially by its attorneys for the purposes of this motion only and for no other purpose) moves this court to set aside the judgment rendered in the above entitled cause of Kahn v. Mercantile Town Mutual Insurance Company, for the following reasons, to-wit:

“1. This court has no jurisdiction over the person of this defendant in this cause;

“2. This court has not acquired jurisdiction over the person of this defendant in this cause;

“3. This court has ho jurisdiction over the subject-matter of this suit, under the United States statutes applicable to the Indian Territory which govern the subject-matter mentioned in plaintiff’s petition;

“4. The judgment herein is irregular because prematurely rendered;

“5. The judgment herein is irregular because it was rendered by default,, without any inquiry of damages;

“6. Under the Constitution of. the United States (art. 1, sec. 8) and the United States laws applicable to the Indian Territory, the said Territorial Court (mentioned in the petition herein) had no jurisdiction to enter- the alleged judgment on which this suit is founded;

“7. The said judgment was rendered in violation of the rights, privileges and immunities of defendant under the Constitution of the United States, art. 1, sec. 8, and art. 4, sec. 1, and the Fourteenth Amendment, sec. 1.

“8. The petition is founded on an alleged judgment purporting to be filed therewith as an Exhibit, when in fact said Exhibit was not filed until November 16, 1905, and the judgment in this court thereon is therefore irregular;

“9. The judgment by default was entered before the time for defendant to plead had expired;

“10. The judgment herein is excessive ;

“11. The court erred in allowing an amendment of the return herein and entering judgment thereon.”

And thereafter, at the same term, December 8, 1905, defendant filed its motion in arrest, as follows (Caption omitted):

“Defendant (appearing specially by its attorneys for the purposes of this motion only and for no other purpose) moves this court to arrest the judgment in the above entitled cause of Kahn v. Mercantile Town Mutual Insurance Company, for the following reasons,to-wit:

“1. The petition does not state facts sufficient to constitute a cause of action.

“2. The court had no jurisdiction over the person of this defendant to render judgment against this defendant at the time when said judgment was rendered ;

“3. This court has no jurisdiction over the subject-matter of this suit.”

At the February term of said court defendant’s said motions to set aside said judgment and in arrest of judgment were by the court overruled. The defendant properly excepted to each of said rulings of the court.

From the judgment of the circuit court, the defendant duly appealed the cause to the St. Louis Court of Appeals.

On February 5,1907, the latter court handed down an opinion, written by Bland, P. J., in which the other judges concurred, affirming the judgment of the circuit court in all things. In due time the defendant filed a motion for a rehearing. The record here does not disclose what disposition was made of that motion.

Thereafter, the defendant also filed in said Court of Appeals a motion to transfer said cause to this court, for the following reasons, stated:

“1. Defendant, in the trial court, by its motion duly filed, claimed immunity from the judgment rendered herein, invoking Federal statutes cited in appellant’s brief and argument in this court.

'“The said claim of appellant was presented in the most formal way to the circuit court hy motion, of which the following is a part, and the same points were made in this court.” (Then follows a copy of the third, sixth and seventh reasons assigned hy defendant in its motion filed in the circuit court, asking that court to set aside the default and judgment rendered therein against it.)

Proceeding: “The Federal laws put the Indians and their reservations under protection of the United States, and persons asserting rights in that country must do so under Federal statutes. We claim that those statutes do not warrant or authorize the judgment sued upon in this case. That is a question involving the construction of Federal law alone, and as such it is distinctly a Federal question falling, within the reviewing authority of the Supreme Court.” (Citing certain cases.)

“2. Under the Constitution and laws of Missouri, the question of the extent of jurisdiction of the Federal courts in the Indian Territory and of the limits of the jurisdiction of the tribal courts under the Federal statutes are questions of Federal cognizance which must be finally determined by the Federal judicial authority. If your Honors will read the brief heretofore submitted in this appeal, you will see that some of the contentions of appellant depend upon Federal legislation and a construction of the Federal statutes relating to the subject-matter involved in the-case. Under the uniform course of decisions of the State and Federal courts, a Federal question is involved in this appeal; and, therefore, it should be transferred to the Supreme Court for final adjudication.

££ The briefs heretofore submitted in this court distinctly raised these questions. They were duly raised in the trial court. We respectfully submit that every proper step was taken to bring the case within the appellate reviewing jurisdiction of the Supreme Court of the State and of the U. S. Supreme Court, in event the decisions of the State courts should be adverse to the claims made by this appellant under the Federal statutes.

“The State and Federal decisions support this view, and upon their authority we most respectfully request that this cause be transferred to the Supreme Court. ’ ’ (Citing authorities.)

“The idea advanced in the learned opinion, that the recital in the pleadings shown only by the record of the judgment of the court in the Indian Territory (as sued upon) will support the judgment, does not avoid our point (based on the Federal cases) to the effect that parties residing in the domain of the civilized tribes (of which the Chickasaws are one) are not subject to the U. S. Courts there, except in special circumstances not averred or shown here.” (Citing eases.)

“Wherefore, appellant renews its prayer for a transfer to the Supreme Court.”

This motion to transfer the cause to this court was, by the following order of the Court of Appeals, sustained, viz: “Now at this day it is considered and adjudged by the court that the judgment rendered herein by this court on the 5th day of February, 1907, be set aside and for naught held and esteemed; and that the opinion filed herein be withdrawn; and the court now being of the opinion that a question involving the construction of a Federal statute is in the cause for determination, doth order and adjudge that this cause be transferred to the Supreme Court of this State for determination.”

I. In our opinion this cause was erroneously transferred to this court by the St. Louis Court of Appeals, for the reason that if any constitutional or Federal question is involved herein, it was not timely and properly raised in the circuit court; and, therefore, was waived, and cannot for that reason he considered on appeal. [Sheets v. Iowa State Ins. Co., 226 Mo. 613.]

The record shows that this suit was begun in the circuit court of the city of St. Louis, July 14, 1905, returnable to the' October term thereof. Upon the same day the sheriff served the writ and petition upon the defendant and made his return thereon to the effect that he served the defendant by delivering a copy of the writ and petition to J. W. Daugherty, manager of the defendant, he being in said defendant’s “usual business office and in charge thereof.”

During the same term the defendant appeared specially and moved the court to quash the return because it was illegal and not sufficient to give the court jurisdiction over the person of the defendant. During the pendency of that motion, and at the same term of court, the sheriff by leave of court amended his return so as to show that he served the writ and a copy of the petition on .said Daugherty, manager of the defendant, “he being in said defendant’s principal office and in charge thereof.” By comparing the two returns, it will be observed that the amendment consisted in erasing from the original return the words “usual business” and interlining in lieu thereof the 'words “principal office,” as it appears in the amended return.

At the same October term, but subsequent to the amendment, defendant’s motion to quash the service was by the court overruled. No further action was taken by either party to the suit during the October term; but the cause went over to the next December term of said court. On December 4th, and during.the December term, there having been no' answer filed in the cause, judgment by default was rendered against the defendant for the sum of $1055.30. Thereafter, during the December term, the defendant filed its motion to set aside the default and the judgment so rendered against it, and thereby, for the first time-, attempted to inject into the cause the Federal questions alleged to be involved in the case. Clearly, that was too late.

The defendant was summoned to appear at the October term of the court, and under the law it was its duty to answer during that term. "While it is true defendant filed its motion to quash the sheriff’s return of service, yet that fact only excused it from answering during the pendency of that motion, which was overruled during the October term. When that motion was overruled it then became the duty of the defendant to plead or answer the petition, at which time it could and should have raised the Federal questions now urged upon our attention. But having failed to so* plead or answer, it was in default, and, consequently the judgment by default was properly rendered against it, which was done at the December term.

This court at an early date held that the courts of this State will permit amendments to be made to the return of a writ to correspond with the facts of the case; and if the amendment be made even at a subsequent term, the return will relate back to the proper return day. [Webster v. Blount, 39 Mo. 500.] This has been the universal practice in this State ever since that opinion was written.

The only excuse counsel for defendant offers for not answering upon the overruling of the motion to set aside the default is that the circuit court had no jurisdiction to allow the sheriff to amend his return without notice to the defendant. In support of that position counsel cite, and rely upon, the case of Little Rock Trust Co. v. Southern Missouri & Arkansas Ry. Co., 195 Mo. l. c. 689. While there is a dictum, of that character in that case, yet it was not necessary to be stated-in order to have properly reached a conclusion in that case, as we will presently try to demonstrate.

That was an erroneous conception of the law. It was the service of the writ and petition upon the defendant, and not the return that gave the trial court jurisdiction over the person of the defendant. The return was merely the evidence by which the court was informed that the defendant had been served. The original return was a false return and would not have justified the court in finding therefrom that the defendant had been properly served; but by the amended return, which in no manner or form changed the actual service had upon the defendant, but bespoke the truth thereof and correctly informed the court that the defendant was in fact properly served. The defendant was no more entitled to notice of the making of the amended return than he was entitled to notice of the making of the original return. Insofar as the defendant is concerned, both stand upon the same footing. Besides this, sections 657 and 660, Revised Statutes 1899, make it the duty of the sheriff, when he has made an erroneous return, to amend it so as to make it conform to the facts; and the law is too well settled to need the citation of authorities to show that the sheriff would have been liable on his official bond for damages for making a false return had he not corrected the same and had injury resulted to plaintiff in consequence thereof.

This court, in the case of Scruggs v. Scruggs, 46 Mo. l. c. 273, in discussing the right of the sheriff to amend his return, said: “The right of a sheriff to amend a defective return, on leave of the court, is beyond question, and it makes no difference that he is out of office. Such amendments, in appropriate cases, are allowed even on application of the sheriff’s administrator. And there is no specific limitation of time within which this class of amendments must be made; although, after a lapse of years, the court should grant applications with great caution, lest the rights of innocent third parties should be injuriously affected, Such applications are not granted as a matter of right. The granting of them rests in the exercise of a sound discretion on the part of the court. ‘Amendments of this description,’ says the court in Johnson v. Day, 17 Pick. 108, ‘are not regulated by any certain rules; but the court is bound in every case to exercise a sound discretion, and to allow or disallow an amendment, .as may best tend to the furtherance of justice. The forms of the court are always best used when they are made subservient to the justice of the case.’ [Blaisdell v. Steamer Wm. Pope, 191 Mo. 157; Webster v. Blount, 39 Mo. 500; Stewart v. Stringer, 45 Mo. 113; Welsh v. Joy, 13 Pick. 477; Fowble v. Walker, 4 Ohio 64; 4 How. 45; Gwynne on Sheriffs, 471; Haven v. Snow, 14 Pick. 28.]”

This has been the universal holding of this court from that date to this. [Feurt v. Caster, 174 Mo. l. c. 298, where the rule announced in the Scruggs case is quoted with approval.]

Returning to the case of Little Rock Trust Co. v. Southern Missouri & Arkansas Ry. Co., supra, in discussing the right of the sheriff to amend his return, the court, on page 689, said: ‘ ‘ The first contention of the defendants is that the service of the summons which was directed to Dittenhoefer and the Southern Missouri & Arkansas Railroad Company, but which was served on the St. Louis, Memphis & Southeastern Railroad Company, by delivering a copy to the local agent of that company, was insufficient in law to bring the St. Louis, Memphis & Southeastern Railroad Company into court, even if it had been a party defendant to the action (which it was not), because the return did not specify that the service was had upon such agent at the business office of said company, as required by section 995, Revised Statutes 1899. This subject Las been so lately adjudicated by this court in Williams v. Dittenhoefer, 188 Mo. 134, that it is unnecessary to further elaborate it. The respondent, however, passes over this contention and seeks to parry its effect by showing that since the submission of this case in this court, the sheriff, without notice to the defendant, filed an amended return which showed that the service was had on the agent of the company at its place of business. This proceeding was without notice, and therefore is not binding on the defendants, as a sheriff has no absolute right to amend a return. The right to amend a return rests in the sound judicial discretion of the court, and the party to be affected by the amendment has a right to a day in court before the court has a right to permit the amendment. [Feurt v. Caster, 174 Mo. 289.]”

In that case, it must be remembered that the amendment was made after the cause had been submitted in this court; and the facts of that case do not show that the amendment was made by leave of the circuit court or that the amended return had ever been brought properly before this court on a suggestion of a diminution of record. But be that as it may, the learned judge who wrote that opinion cites no authority for the position there taken, except the case of Feurt v. Caster, 174 Mo. 289. By inspecting the latter case it will be clearly seen that there is nothing in it which lends even a color of semblance to the doctrine announced in the former case. The latter case was a suit in ejectment, and the facts were the plaintiff’s deceased wife owned a hundred and sixty acres of land in Daviess county, and he claimed a life estate therein by the curtesy, which was sold under execution issued on a judgment rendered against him in favor of Ellen Gilreath, his mother-in-law. The defendant became the purchaser of the land at that execution sale, and went into possession thereof. Some years later, the plaintiff in the latter case, who was the defendant in the Ellen Gilreath suit, claimed that his estate by the curtesy was not subject to execution sale, for the reason that he claimed a homestead right therein. This court in discussing that case, among other things, said:

“The plaintiff claims that the judgment is void, and therefore may be attacked in this collateral proceeding, because the return of the sheriff on the summons issued in the case of Ellen Grilreath against him was insufficient in law to confer jurisdiction over his person, in that it simply recited: ‘I hereby certify that I executed the within writ in the county of Daviess, State of Missouri, on the 21st day of August, 1896, by leaving a copy of the same at the usual place of abode of Benjamin F. Feurt, with a member of his family over the age of sixteen years,’ while the statute requires not only that a copy of the writ shall be served upon the defendant, but also a copy of the petition shall be served upon him, and this . return does not show that a copy of the petition was so served upon the defendant in that case (the paintiff in this case) and therefore the court never had any jurisdiction to render a judgment against the defendant in that case, and the judgment is void, and hence, open to collateral attack.

‘ ‘ On the other hand, the defendant claims that the land in controversy never was the homestead of plaintiff, and hence his estate by the courtesy was subject to execution; and, further, that the judgment aforesaid is not void, but only voidable or irregular, and that such irregularities were only subject to attack by the defendant in that case itself, and are impervious to attack in this collateral case; and, also, that the trial court erred in refusing to permit the sheriff to amend his return so as to show that a copy of the petition, as well as of the writ, was served on the defendant in that case. The defendant offered the evidence of the deputy sheriff who served the writs, which tended to show that a copy of the petition was attached to the writ, and that he served both at the same time by leaving them at the defendant’s usual place of abode with a member of his family over the age of sixteen years, but the deputy sheriff could not remember who such person was or whether it was a man or woman, but was certain that whoever it was was over the age of sixteen years. He also said he never served any other writs upon the plaintiff herein. On the other hand, the plaintiff proved by his stepdaughter, Mrs. Sinnie Cathcart, that some one, she could not say who, gave her some papers, she did not lmow what they were, and asked her to give them to her stepfather, the plaintiff, and that she did not do so. She also said she would be nineteen years old on April 5, 1901. The writ in question was served August 21,1896. So that she was only fourteen. years old at the time of the service. On motion of the defendant, however, the court struck out all her testimony, because she did not identify the person who served the papers, as being the deputy sheriff who served the writ in question. Hence, her testimony is not open to consideration in this case in this state of the record.

“The defendant, however, contends that the sheriff had a right to make the amendment, and that evidence that the proposed amendment was untrue was inadmissible, for the reason that if the amended return be false, the party aggrieved would have a remedy on the sheriff’s bond, just as if the original return had been as the proposed amendment contemplated, and that such remedy is exclusive. Per contra, the plaintiff claims that such amendment is not a matter of right with the officer, and can only be made by leave of court granted in the exercise of a sound judicial discretion, and that it ought not to be allowed in this case, because a right of action against, the sheriff on his bond is now barred by limitation.

“The trial court entered judgment for the plaintiff, and the defendant appealed.”

This court, after holding that plaintiff had no homestead in the land, proceeded:

“It is contended that the trial court erred in refusing to allow the sheriff to amend the return upon the summons in the ease of Mrs. Gilreath against the plaintiff.

‘ ‘ Two reasons are urged in support of this contention: first, that the sheriff had an absolute right to amend, being liable on his bond if the amended return be false, and therefore evidence that the proposed return is untrue is inadmissible; and, second, that under the 'evidence adduced in support of the application for leave to amend the return, the court ought, in the exercise of a sound judicial discretion, to have permitted the amendment.

“The defendant cites Phillips v. Evans, 64 Mo. 1. c. 23, as authority for his first contention aforesaid. In that case it is said: ‘ The return of the officer is conclusive, as to the facts therein recited, except in an action for a false return. . . And the same reasons which would forbid any contradiction of the returns when made, must operate with equal and controlling potency in precluding evidence to show that a proposed amendment is untrue.’

“Substantially the same rule was laid down in Stewart v. Stringer, 41 Mo. l. c. 404. But on second appeal of the same case (45 Mo. 113) the power of a sheriff to amend a return without due leave of court was denied.”

Then follows the quotation before made from the Scruggs case, supra.

Proceeding, the court ,said: “In McClure v. Wells, 46 Mo. l. c. 314, it was said: ‘Leave should be granted to amend the return in accordance with the facts. Such amendments are always freely allowed in aid of a judgment, although denied where their effect is to create error.’

“In addition to this, any doubt that may heretofore have existed by "reason of the divergent views expressed in the eases cited is removed and the question set at rest by sections 657 and 660, Revised Statutes 1899, •which, provide that before or after final judgment ‘the court may, in furtherance of justice,'and on such terms as may be just, amend,’ if after judgment, ‘in affirmance of such judgment’ and if before judgment ‘in furtherance of justice,’ ‘any record, pleading, process, entries, returns, or other proceedings in such cause, ’ etc.

“By these statutes the power to allow amendments is vested in the court, to be exercised upon such terms as may be just, and the officer is not given any absolute power of amendment, and this must hereafter be taken as the rule of law in such cases.

“The second contention is not so easy of solution. The trial court refused to permit the sheriff to amend the return, because he could not identify the person upon whom he served the papers. As herein stated such amendments are allowed in the exercise of a sound judicial discretion, but as well said in McClure v. Wells, supra, ‘such amendments are always freely allowed in aid of a judgment.’ And whilst this court is always loth to interfere with discretionary rulings of trial courts,, nevertheless such rulings are not conclusive upon this court, and where they are interfered with it is because that discretion exercised by the trial judge is not a personal discretion, but a judicial discretion, and because the ultimate responsibility for every judgment rests upon the court of final resort to which the case is taken, and therefore that court is in duty bound to approve or reject all rulings of lower courts even when made in the exercise of a judicial discretion. [17 Am. and Eng. Ency. Law (2 Ed.), pp. 844-5, and cases cited in notes.]

“It is with these principles in mind that the decision of the question under consideration is approached and reached.

“It is certain that some sort of papers were left by some one for the plaintiff at his usual place of abode, about the time the case of Mrs. Gilreath against the plaintiff was begun. The deputy who served these papers swears positively that these papers consisted of a copy of the writ and a certified copy of the petition attached to' the writ, for he says he remembers stopping in the shade to rest his horse just before he reached the plaintiff’s house, and that he took the papers out of his pocket and examined them to see that they were all right and then put a rubber band around them, and proceeded to the plaintiff’s house. He also swears that he never served any other papers on the plaintiff or had any to serve on him at any other time. He also remembers that after leaving the plaintiff’s house he proceeded further on his way and served a summons upon a neighbor, to serve on the grand jury. But he is unable to remember upon what member of the plaintiff’s family he served the papers, and does not know whether it was a man or a woman, an old or a young person, but is sure it was on some one who was over sixteen years old, whom he found in the plaintiff’s house, and who was pointed out to him, by the plaintiff’s young son, whom he found at the front fence, as a member of the family.

“It appears by other testimony that at the time of the service the plaintiff’s family consisted of his son, Gabe Feurt, aged twenty years, his stepdaughter, Mrs. Sinnie Cathcart, aged fourteen years, his son, Frank Feurt, aged eleven years, and his daughters Bertha and Mary, aged ten and three years, respectively. Gabe Feurt swears the papers were not served on him. Mrs. Sinnie Cathcart said some one, she did not know who, gave her some papers, she did not know what, at a time she could not specify, and told her to give them to her stepfather and that she did not do so. Upon motion of the defendant her testimony was struck out because of her inability to identify the person who served the papers on her. And this ruling was unquestionably correct, in the abstract, but taken in connection with, the testimony of the deputy sheriff, it is not altogether dear that it was incompetent. The objection that she could not identify the person goes rather to the probative force of her testimony than to its competency in this case, where it appears on all sides that there never was but one set of papers served upon the plaintiff. The testimony of the deputy sheriff made it sure what papers were served, and when they were served, but left it uncertain upon whom they were served, while the testimony of Mrs. Cathcart cleared up that uncertainty, by showing that the papers were served upon her and that she was at that time only fourteen years old. Hence, the testimony of these two witnesses related to the same and the only transaction of this hind that ever happened, and the one was the fitting complement of the other. But the defendant moved to strike out Mrs. Cathcart’s testimony, and so he cannot complain, and the plaintiff submitted to the ruling, so he cannot complain. This leaves the application of the sheriff to amend supported only by the testimony of the deputy sheriff; and he is unable to say upon whom he served the papers. Cabe Feurt was the only member of the plaintiff’s family who was over sixteen years old at that time, and he swears the service was not on him. It is shown by other testimony that Mrs. Cathcart was there at the time and that she was only fourteen years old.

“Under such a showing it cannot fairly be said that the trial court failed to exercise a sound judicial discretion in refusing to allow the sheriff to make the amendment proposed. It would be a wise provision of law if the officer serving process upon a member of a family should be required to state in his return the name of such member of the family.”

At the cost of considerable time and labor we have stated the substance of the facts in the Feurt-Caster case, and quoted fully therefrom all this court there said regarding the right of a sheriff to amend his return.

It will be observed from reading the quotations from that case that not a word is said about the defendant being entitled to notice before the court could legally permit a sheriff to amend his return. In fact, in that case it was the defendant who was insisting that the amendment should be made, and consequently in the very nature of the case he was not entitled to notice; and as to the plaintiff, who was the defendant in the Gilreath case, he was there in court resisting the amendment, not for want of notice, but because, as he contended, the proposed amendment was not true in fact.

From these observations it must be clear that there was not and there could not have been a question of notice involved in that case. Therefore, in no sense can it be logically contended that it supports the dicta of the learned judge who wrote the opinion in the case of Little Rock Trust Co. v. Railroad, supra.

Not only that, but in the Feurt-C'aster case the defendant who was insisting upon the return being amended was no party to the suit in which the original return was made and which was asking that it be amended.

There is no statute, text-book or adjudication which has been called to our attention, or which we have been able to find, which holds that the defendant is entitled to notice before the sheriff can amend his return by permission of court, except the dicta stated in the Little Rock Trust Co. case; and by reading that case it will be seen that those remarks of the judge were wholly unnecessary to a proper disposition of the case, for the obvious reason that the St. Louis, Memphis & Southeastern Railroad Company, which was sought to be brought in by the amendment, was not a party to the suit; and, clearly, if the amendment had been allowed it would not have supported a judgment against it.

We, therefore, hold, as above stated, that it was the duty of the defendant in the case at bar to have answered the petition filed herein at the time the circuit court overruled its motion to quash the sheriff’s return ; and, having failed to do so, and thereby having failed, at the time, to raise the Federal questions now presented, they were waived, and cannot be considered on appeal. [Sheets v. Iowa State Ins. Co., supra.]

Having reached this conclusion, and there being no fact or question involved in the ease which confers' jurisdiction upon this court, the cause should be transferred back to the St. Louis Court of Appeals. It is so ordered.

All concur.

SEPARATE CONCURRING- OPINION.

YALLIANT, J.

Whilst concurring in the opinion of my learned brother Woodson in this case I have some other views on this subject that I wish to express. The allowing of an amendment to a return being a matter in the discretion of the court, the sound judicial discretion, and the statute which authorizes it not expressly requiring notice of the application to amend, the question of the requiring of notice is also in the sound judicial discretion of the court, and therefore if, in a given case, the trial court has allowed the return to be amended without notice, the ruling will not on appeal be held to be error, unless under the facts shown by the record, the appellate court is satisfied the discretion was not judiciously exercised and injury probably resulted. The facts of this case illustrate what I am trying to say; this defendant was not in court by force of the return as it was originally made. But he entered a limited appearance for the purpose of moving to quash the return he was therefore in court for that purpose, and was bound to take notice of what the court did with his motion to quash and its ruling on the question of the sufficiency of the return. Pending that motion the court allowed the return to be amended and its ruling on . the motion was presumably based on that amendment. The defendant therefore had notice and the court did not' abuse its discretion in not requiring notice to be given.

In my opinion the practice of allowing a sheriff to amend his return has gone farther than was originally contemplated, either by the General Assembly or by this court, and has reached a condition that calls for legislation to put a limit on it. As the law now stands an indefinite number of years may have passed, conditions may have changed, the party’s remedy on the sheriff’s bond may amount to nothing, the sheriff himself may have died and his administrator is allowed to amend the return.

The statute says the amendment may be allowed when it would be in furtherance of justice, and in an early case cited by Judge Woodson in his opinion, McClure v. Wells, 46 Mo. 311, the court said: “Such amendments are always freely allowed in aid of a judgment, although denied where their effect is to create error.” What was there said may have been well said as applied to the facts of that case, but not for universal application. If in fact an original return is false there is no more reason for allowing it to be amended to support a judgment than to defeat the judgment. For example, if the original return shows that defendant was duly served with the process and on that return a judgment by default was entered, yet in fact the return was false, the judgment rests on a false basis, and it would be as much in furtherance of justice to allow the sheriff to amend the return which would defeat the judgment as it would if the conditions were reversed,

It would not be in furtherance of justice to allow an amendment of a return to aid an unrighteous judgment, but would be to allow it to expose the error. Justice is no more concerned in upholding a righteous judgment than it is in defeating an unrighteous judgment.

But this practice to which I have alluded is of too long standing, and is supported by too many decisions of this court to be now within the province of the judiciary to change it, but it is a matter which deserves the attention of the General Assembly. The statute ought to be amended so as to put a reasonable limit as to the time in which an amendment of - a return should be allowed and to require notice if the party to be affected is within reach.

Lamm, P. Jv and Graves, J., concur.


text:
    WILLIAM F. KLENE, Appellant, v. MARJORIE REALTY COMPANY and HERBERT A. VROOMAN.
    Division One,
    May 31, 1910.
    AGENT’S COMMISSIONS: For Selling Real Estate: Written Contract. A written contract to sell or exchange real estate is not necessary to the agent’s right to recover commissions he has justly earned. The Act of March 28, 1903, Laws 1903, p. 161, making it a misdemeanor for any agent in a city of three hundred thousand inhabitants or over to undertake to sell real estate without a written contract authorizing him to do so, is unconstitutional.
    Appeal from St. Louis City Circuit Court. — Eon. Jesse A. McDonald!, Judge.
    Reversed and remanded.

      Benj. J. Klene for appellant.
    (1) The Act of 1903 is in conflict with the Constitution of Missouri, (a) Because it is an arbitrary, unusual, unnecessary and unreasonable interference with the right of private contract, and with the conduct of private business. Woolley v. Mears, 226 Mo. 41; Grossman v. Caminez, 79 N. Y. App. Div. 15; Fisher Co. v. Woods, 187 N. Y. 90; State v. Loomis, 115 Mo. 307; Mo. Constitution, art. 2, secs. 4 and 15. (b) Because the act is local and special when a general act could be made applicable. Mo. Constitution, art. 4, sec. '53; State v. Walsh, 136 Mo. 400; Woolley v. Mears, 226 Mo. 41; State v. Thomas, 138 Mo. 100; State v. Julow, 129 Mo. 163; In re Flukes, 157 Mo. 125; State ex rel. v. Turner, 210 Mo. 77; State ex rel. v. Messerly, 198 Mo. 351; State ex rel. v. Standard Oil Co., 218 Mo. 1. (2) The act is also unconstitutional as penalizing in cities of 300,00o1 inhabitants or over, the selling of real estate without written authority from the owner, while it does not penalize the making of exchanges of real estate. Thus emphasizing the correctness of the court’s decision in the Woolley-Mears case on the subject of local and special legislation.
   GRAVES, J.

This case involves an agent’s commission for the exchange of real estate. The amount involved is small, $291.70', but the case reaches this court upon a constitutional question. Defendant Vrooman was the president of defendant Marjorie Realty Company. Sometime before the transaction involved in this case, Vrooman had employed plaintiff to work in the office of defendant company, and agreed to pay him in cash the sum of eighteen dollars per week, and in ád'dition thereto one-half of the commissions on sales or exchanges made by the said Klene.

From the evidence in this record, it appears that defendant Vrooman was the beneficial owner of certain real estate in the city of St. Louis, and told plaintiff to exchange it. Pursuant to this request, the plaintiff did exchange it for farm property in St. Francois county, Missouri. The agreed value as between Yrooman and plaintiff was $26,000. Yrooman paid $45 on account but failing to pay further, plaintiff instituted this suit in a justice’s court to recover one-half of two and one-half per cent commission on $26,000, less the $45 paid, or the sum of $280, plus interest after demand of $11.70, making a total of $291.70.

In the justice’s court, defendants filed a counterclaim, but this was withdrawn in the circuit court. It was agreed that a commission of two and one-half per cent was proper. On the trial the plaintiff testified that he never had any written authority to sell or exchange the real estate in the city of St. Louis, and here is the bone of contention in this case. The circuit court gave a peremptory instruction directing a verdict for defendants, evidently upon the theory that under the Act of March 28, 1903, Laws 1903, p. 161, the plaintiff could not recover because of the fact that he had no written authority to sell or exchange the property. The plaintiff, being thus confronted, took an involuntary nonsuit, but within due time moved to set the same aside, in which motion he challenges the constitutionality of the legislative act aforesaid'. This motion being overruled, the cause was appealed to this court. Eespondent files no brief. This conduct on the part of respondent was evidently the result of our recent opinion in the cause of Woolley v. Mears, 226 Mo. 41. From the record before us, the turning point in the case in the court, nisi, was evidently the constitutionality of the Act of 1903, supra. This question was fully considered in the Mears case, supra, and it was held that the said act was violative of constitutional provisions. The decision of that case determines this case. So recent is this review of the law that we shall not go into the question further at this time.

Under the authority of the Mears case, supra, this cause is reversed and remanded.

All concur.