text:
    IRENA MOWRY and MARY KETTERING v. MARION NORMAN, Appellant.
    Division One,
    November 27, 1909.
    1. WILL CONTEST: Peremptory Instruction. Where upon the former appeal the Supreme Court examined the record and ruled that the case was one for the jury, the trial court, upon a retrial, the evidence being much the same, properly refused a peremptory instruction to find for the proponents of the will.
    2. -: Financial Condition of Donees. The financial condition of the donees and disinherited contestants who are the natural objects of the testator’s bounty, if it be shown that testator had knowledge thereof, may be shown in the will contest, as bearing upon the issues both of incapacity and undue influence.
    3. -: Incapacity: No Issue: Submission to Jury. The burden is upon proponent to show the mental capacity of testator to make the will; and though there is not sufficient evidence to submit the question of his incapacity to the jury, yet if proponent does not ask for a peremptory instruction upon that issue, hut asks and is given instructions fully covering and submitting that issue to the jury, he cannot complain of proper instructions on the same subject given for contestants.
    4. INSTRUCTIONS: Asked on One Side: Right'of Other. Where one side present's instructions upon certain points, the other side cannot be held as committing error in asking and receiving similar instructions on the same question.
    5. WILL CONTEST: Incapacity: Correct Instruction. An instruc-' tion for contestants, requiring the jury to find, from a preponderance of the evidence, that testator “had sufficient understanding to comprehend the nature of the transaction he was engaged in at the time of the signing and execution of the proposed will, the nature and extent of his property, and to whom he desired to and was giving it, without the aid of any other person, and unless the defendants have shown by such preponderance of evidence that he did possess all these requisites, you should find that the paper writing introduced in evidence is not the will and testament of deceased,” is approved.
    6. -: Undue Influence: Confidential Relations. Where a confidential relation has been established, showing that the chief beneficiary of the will had sole control and management of his father’s business, property and affairs, the law presumes undue influence, and places the burden upon such beneficiary to rebut it. And the instruction on that subject in this case is held to be in substance correct, though the language might be judiciously changed.
    7. REMARKS OF COUNSEL: Preserved by Affidavit Only. The case had been previously tried, and by stipulation it was agreed that either party might read the evidence of any witness from the bill of exceptions. Appellant was present, but did not testify, his testimony at the former trial being read from the bill, and in the motion for a new trial and in a subjoined affidavit it is charged that counsel for respondents severely criticised appellant for not having testified in person. Held, the complaint, being found for the first time in the motion and affidavit, cannot be considered on appeal. The bill of exceptions must show objections to the remarks when made and exceptions to the court’s ruling thereon.
    Appeal from Nodaway Circuit Court. — Hon. F. A. Cummins, Special Judge.
    Affirmed.
    ' W. W. Ramsay, L. C. Cook and W. A. Blagg for appellant.
    (1) Testimony concerning the financial condition of plaintiffs and their husbands was incompetent. Such evidence had no tendency to prove any issue presented by the pleadings. Its only effect, and, we believe, the only purpose in offering it, was to create in the mind of the jury a sympathetic feeling'for plaintiffs, and thus cause the jury to say, as they did, this farm ought to be divided. (2) The evidence of Mrs. Kettering and Mrs. Mowry, plaintiffs, as to how they worked on the farm and in the field for their father, when they were girls at home, some forty years ago, should have been excluded. This evidence tended to prove no issue in the case, but constituted a powerful weapon in the hands of plaintiffs’ counsel, in creating a sentiment in the mind of the jury for their clients. Couch v. Gentry, 113 Mo. 248. (3) Plaintiffs’ first instruction, submitting to the jury the question of mental capacity, was error. There is absolutely no testimony in this record even tending to show that at tbe time the will was executed the testator was mentally incompetent to make a will. Couch v. Gentry, supra; Sehr v. Lindemann, 153 Mo. 288; Winn v. Grier, 217 Mo. 445. If, then, the issue has been submitted to the jury, and they have found against the will, it is the duty of the court to set the verdict aside unless the evidence measures up to the standard required. Riggins v. Westminster College, 160 Mo. 581; Jackson v. Hardin, 83 Mo. 175; Fulbright v. Perry County, 145 Mo. 432; Norton v. Paxton, 110 Mo. 466. Plaintiffs had these same witnesses and this identical testimony on the first appeal, on this issue, and this court, after reviewing it all, in effect said that there was not sufficient testimony to take this issue to the jury, but held that plaintiffs were entitled to go to the jury on the question of undue influence. Mowry v. Norman, 204 Mo. 173. And yet, in the face of all this, the issue of mental capacity is submitted, along with that of undue influence, and a jury finds against the will. (4) Plaintiffs’ second instruction is erroneous. It tells the jury that, even though the testator was of sound mind and disposing memory, and fully competent to make a will, yet, if from any cause or causes, his mind was subject to the control and dominion of Marion Norman, and Marion unduly exercised that dominion at the time the will was executed, then the finding should be against the will. Such doctrine is not-the law of this State. There are influences over the mind of a testator which the law condemns, and others which it commends — influences upon which society frowns and others upon which it smiles — influences bad and others good — some right and some wrong. Winn v. Grier, 217 Mo. 459; Rankin v. Rankin, 61 Mo. 295; Jackson v. Hardin, 83 Mo. 175. (5) The giving of plaintiffs’ sixth instruction was error. This instruction declares the law to be, that if appellant was the son of testator and sustained confidential and fiduciary relations toward him when the will was made; and that lie resided with the father until his death, had control of- the household affairs; had the close and implicit confidence of the father, and the father looked to him for advice, counsel and direction; that he had the control and management of the father’s business, and that he is the only substantial beneficiary in the will, then the law presumes that the will is the result of undue influence, and puts upon the son the burden of rebutting this presumption, and further declares that unless he has done so, then the jury should find against the will. This instruction is not the law, because of two propositions, viz.: 1. Even if it were conceded that a jury might be warranted in finding the existence of undue influence from the conditions stated in the instruction, yet, from such conditions, the law does not presume that it does exist, and the jury should not be so told. 2. The conditions stated in the instruction, without something more, do not constitute undue influence, such as invalidates a will. Baily v. Railroad, 152 Mo. 461;, Moberly v. Railroad, 98 Mo. 183; Spaulding’s Case, 33 Wis. 582; Lynch v. Railroad, 112 Mo. 434; Rapp v. Railroad, 106 Mo.,423; Myers v. Kansas City, 108 Mo. 480; Barr v. Kansas City, 105 Mo. 558; Railroad v. Stebbins, 62 Mo. 504; Payne v. Railroad, 129 Mo. 419.

      John Kennish, John M. Daiuson and A. F. Harvey for respondents.
    (1) The court did not err in overruling defendant’s objection to the evidence tending to show the financial condition and circumstances in life of the plaintiffs. Such evidence, both as to plaintiff and defendant, is competent in such a case. Thompson v. Ish, 99 Mo. 160; Schouler on Wills (3 Ed.), 263; MeFadin v. Catron, 120 Mo. 270; McFadin v. Catron, 138 Mo. 197; Meier v. Buchter, 197 Mo. 68; Fairchild v. Bascom, 35 Yt. 398 • 13 Ency. of Ev., pp. 226, 256-7; Davenport v. Johnson, 182 Mass. 269. (2) The court did not err in admitting over the defendant’s objection, the testimony of Mrs. Mowry and Mrs. Kettering tending to show that while living at home before their marriage they assisted their father, the testator, by working on the farm. It is always competent on the issue of undue influence to prove that the will is unjust, unreasonable and unnatural in its provisions. Meier v. Buchter, 197 Mo. 68; 29 Am. and Eng. Ency. Law (2 Ed.), p. 115; Thompson v. Ish, 99 Mo. 172; 13 Ency. of Ev., p. 249; Page on Wills, sec. 426. (3) The defendant having requested the court to instruct the jury upon the issue of testamentary capacity and the court having instructed the jury as requested, the defendant cannot now be heard to complain of error in the submission of such issue, and therefore the action of the court in giving instruction 1 at the request of plaintiffs is not before this court for review. Crutch-field v. Eailroad, 64 Mo. 255; Bank v. Armstrong, 92 Mo. 265; Fairbanks v. Long, 91 Mo. 628'; Holmes v. Braidwood, 82 Mo. 610; Straat v. Hayward, 37 Mo. App. 585; Green v. Green, 145 111. 264; 2 Ency. PI. and Prac. 523. (4) The appellant’s fifth assignment complains of error in the giving of the second instruction at the request of the plaintiffs. It is not necessary for respondents to enter upon the defense of the instruction now under consideration for the reason that it is in form approved by this court. Moore v. McNulty, 164 Mo. 111. (5) Error is also assigned to the action of the court in giving instruction 6 at the request of plaintiffs. As this instruction is in exact conformity with the law as declared by this court on the former appeal of this cause, it is now the law of the case and is not open to review on this appeal. Mowry v. Norman, 204 Mo. 173; Hegney v. Head, 126 Mo. 619; Seibert v. Hatcher, 205 Mo. 83; Gordon v. Burris, 153 Mo. 226 ; Marx v. McGlynn, 88 N. Y. 357; Gay v. Gillilan, 92 Mo. 250; Maddox v. Maddox, 114 Mo. 35; 2 Pomeroy’s Eq. Jur., sec. 951.
   GRAVES, J.

This case is here for the second time. It stands admitted that the facts are practically the same as before. In fact the greater portion of the evidence was read from the previous record, and that offered in addition does not substantially change the case or the questions involved therein. Upon this point, the present appellant says:

“The evidence at the last trial was, as per stipulation duly filed, mostly read to the jury from the bill of exceptions filed in the first appeal, there being but few witnesses introduced in person, and this very commendable method of procedure, adoptedforthepurpose of saving costs, gives rise to one of the important points urged by appellant as ground for reversal, viz., the misconduct of counsel for respondents as appears in the bill of exceptions, and presented in our briefs. ’ ’

At the first trial at the close of all the testimony, the learned trial judge, by peremptory instruction, directed the jury to find that the paper writing was the last will and testament of Wesley Norman. A verdict was returned in accordance with such direction from the court, and upon that verdict judgment was rendered, from which the plaintiffs (contestants) duly appealed. [Mowry v. Norman, 204 Mo. 173.]

This judgment we reversed and remanded the cause. The pleadings and facts are fully set out in the opinion there given, and it would be a trespass upon time and space to reiterate them here. We were then fully possessed of the facts and in the opinion stated them. The inquiring mind can gather them from this first opinion.

Upon a retrial before a special judge, the cause was submitted to a jury, and this jury found that the paper writing was not the last will and testament of Wesley Norman, upon which verdict judgment was in due form rendered, and from this judgment the proponent of the will has now appealed. Whilst the facts in the case proper are practically the same, some new questions are raised upon the instructions, as well as some matters occurring during the trial. In the former opinion we held that the case should have at least gone to the jury upon the question of undue influence, but as to the question of mental capacity, we declined to pass upon that issue in express terms either one way or the other, but from the opinion in general it may be gathered that the testimony upon absolute mental incapacity was somewhat scant and questionable in view of some of the Missouri cases. These cases we did not then go into, because we had reached the conclusion that the case would have to be reversed and remanded upon the other ground. So that it will only be necessary to note the new questions in this record, leaving the summary of the evidence to be gathered from the former opinion. Such portions of the new record, as well as the old, as may be necessary to a disposition of the present legal questions, now urged, will be noted in the course of the opinion, and this on the theory that both opinions will be read together in order to get the full scope of this opinion.

I. At the close of all the evidence in the case, the defendant or proponent of the will, in this trial, as in the previous trial, asked a peremptory instruction, directing the jury to find that the paper writing was the last will and testament of Wesley Norman, deceased. Although given in the first trial it was refused in this trial. This refusal is urged as error. In refusing such an instruction the trial court was but following the mandates of this court. We examined the record on the former appeal and were satisfied that there was a case for the jury. Contestants’ case has not been weakened by the facts presented in the last trial. This peremptory instruction was therefore properly overruled.

II. It is further urged that error was committed in permitting the plaintiffs (contestants) to show their financial condition, a condition thoroughly shown to have been within the .knowledge of the testator. In will contests, the purpose of the law is to place the jury in the position of the testator. Especially is this true as to the relations of testator with those who are the natural objects of his bounty. If it be shown that one child has been successful in life, and further shown that this child bore a confidential or fiduciary relationship to the testator, and further shown that the testator was in position to know and did know the financial situation of the other children (natural objects of his bounty), and under these circumstances a will is made giving all the property to the one who was in no way (financially speaking) dependent upon the bounty of the testator, such evidence is competent to show that the testator was either incapacitated to make a will by not being able to fully contemplate and know the objects of his bounty, or it is competent as tending to show undue influence upon the mind of the testator in the execution thereof. Such evidence bears upon the issue of undue influence and mental incapacity. [Thompson v. Ish, 99 Mo. 160; Schouler on Wills (3 Ed.), p. 263; 28 Am. and Eng. Ency. Law, (2 Ed.), pp. 106-7.]

By the last authority, with citations from many states, it is said: “The character of the provisions, however, as being just or unjust, reasonable or unreasonable, may be considered by the jury as tending to throw light on the capacity of the.testator. Evidence is therefore admissible tending to throw light on the question of the justice or reasonableness of the will. Such evidence usually relates to the relative situations and needs of those having a claim on the testator’s bounty, and to the relations between the testator and those receiving or claiming to have been unfairly deprived of this bounty.”

And this court, in the recent case of Meier v. Buchier, 197 Mo. l. c. 90, has expressly approved this language. The writer hereof did not sit in that ease, because not argued in his presence, but fully concurs in the doctrine therein announced. There can be no question that evidence as to the relative situations and needs of those having a claim upon the bounty of a testator is proper evidence. You can show the relationship as to whether the testator was friendly or unfriendly to the natural objects of his bounty. The principle of law which admits this evidence admits the other and for the same reason.

Case after case might he cited, but we will not take further space. This contention is untenable.

III. Defendant complains of the action of the court in giving instruction numbered 1 for the plaintiffs. This instruction goes to the question of mental incapacity to make a will.

If it were not for the fact that defendant himself had asked several instructions on this same question it might be debatable as to whether or not the instruction should have been given. At the previous hearing of this cause in this court, we did not pass upon that question, but contented ourselves by saying that a peremptory instruction to find that the written instrument was the last will and testament of Wesley Norman was properly refused, at least upon the ground that there was strong evidence tending to show undue influence. The burden is upon the proponent of the will, or the defendant in this case, to show the mental capacity of the party making the will, and so long and so recently has this doctrine been announced that citation of authority is not called for.

Now, in the present trial the proponent of the will, defendant herein, by his instruction numbered 1, had the court to declare that there were three questions to be determined, (1) as to whether or not the will was formally executed, (2) as to whether or not the decedent was sound enough in mind and memory to make a will, and (3) as to whether or not the testator’s mind was operating under the undue influence of Marion Norman.

As to the first question, defendant asked a peremptory instruction, which was given.

As to the second question, i. e., that of mental incapacity, the defendant instead of asking for a peremptory instruction and thereby forcing the court to declare whether or not there was any evidence upon which to submit said question, said defendant assumed a different course, that is to say, he asked and was given instructions fully covering and submitting to the jury the question of mental incapacity.

Now, bearing in mind that upon this question the burden was upon defendant, the plaintiff asked and the following instruction was given:

“The court instructs the jury that, in determining the issue of the sufficient soundness of mind and testamentary capacity possessed by said Wesley Norman to make a will, before you can find in favor of said proposed will, you must believe from a preponderance of the evidence that, at the time of the signing and execution thereof, the said Wesley Norman had sufficient understanding to comprehend the nature of the transaction that he was then engaged in, the nature and extent of his property, and to whom he desired to and was giving it, without the aid of any other person, and unless -the defendants have shown by such preponderance of evidence that he did possess all these requisites, you should, find that the paper writing introduced in evidence is not the will and testament of the deceased, Wesley Norman.”

Defendants now say that this instruction is error and in support thereof cite us to the case of Couch v. Gentry, 113 Mo. 248 and Winn v. Grier, 217 Mo. l. c. 447. They also complain that it was indicated to the court in the previous trial that the question of testamentary incapacity was not shown hy the evidence. The previous opinion in this court did not positively pass upon that question, but in fairness to the defendant it should be said that there was doubt as to the sufficiency of the evidence upon that point.

This, however, need not be discussed at this time. Under all the rules, the defendant (proponent of the will) must establish the mental capacity of the testator. When such defendant by instructions submitted by him and approved by the court presents that question to a jury, it cannot be said that the opposite party has committed error when he submits and has approved an instruction upon the same question, unless the instructions so given are absolutely at variance, so that a jury might be misled by either or all of the instructions.

It has been continuously held that, where one side presents instructions upon certain points, the other side cannot be held as committing error in presenting similar instructions upon the same question. See Gordon v. Park, 219 Mo. l. c. 611 and cases cited.

In this case the instructions asked and received by defendant were as broad as the law will permit, and he having invoked the judgment of the jury upon the question of mental incapacity is in no position to complain of a proper instruction upon the same question by the plaintiffs. Defendant having the burden cast upon him as to the question of mental incapacity asked and received instructions fully as broad, if not broader, than the case law of the State.

With this situation, the plaintiffs asked the instruction quoted above. They now say this instruction was error because this court had indicated that such question was not in the case. We did not in direct terms so indicate, but whether we did of not, the defendant having asked instructions upon the same question is in no condition to complain, unless the instruction given for plaintiffs is absolutely erroneous. Defendant might have asked a peremptory instruction upon this question and thereby obviated the question here, but he did not seek so to do.

Defendant claims that such instruction as was given to the plaintiffs is condemned by the cases of Couch v. Gentry, 113 Mo. 255 and Winn v. Grier, 217 Mo. 420. The instruction we have set out above.

In the Couch case, Judge Black, in defining what he understood to be mental incapacity said: “If the testator understood the business about which he was engaged when he had prepared and executed the will, the persons who were the natural objects of his bounty and the manner in which he desired the dispositions to take effect, he was capable of making a will. [Schouler on Wills, sec. 68.] Such is in substance and effect the rule as stated by this court in a number of cases. [Brinkman v. Rueggesick, 71 Mo. 553; Benoist v. Murrin, 58 Mo. 307; Jackson v. Hardin, 83 Mo. 175; Myers v. Hauger, 98 Mo. 433; Thompson v. Ish, 99 Mo. 160; Norton v. Paxton, 110 Mo. 456.] We said in the case last mentioned that a person, though aged or infirm, who is able to transact his ordinary business affairs, and who has a mind and memory capable of presenting to him his property and those persons who come reasonably within the range of his bounty, has the capacity to make a will.”

In Winn v. Grier, Judge Fox, said: “The cases above cited have firmly settled the question as to the requisite test of mental capacity sufficient to execute a valid will. As was said by Gantt, J., in speaking for this' court in Sayre v. Trustees of Princeton University, supra, ‘the standard of mental capacity required to sustain a will has been fixed so far as judicial utterances can settle a principle, and it is that the testator must have “had sufficient understanding to comprehend the nature of the transaction that he was engaged in, the nature and extent of his property, and to whom he desired to give it, and was giving it, without the aid of any other person,” ’ citing in support of such rule, Crossan v. Orossan, 169 Mo. l. c. 641; Brinkman v. Rueggesick, 71 Mo. 553; Couch v. Gentry, 113 Mo. 248.”

Comparing the instruction given with the discussion made by Judges Black and Fox we are unable to discover any error in plaintiffs’ instructions set out above.

In fact we are impressed that the instructions upon the other side, asked and obtained, go further than the cases in Missouri.

This contention, therefore, will be ruled against appellant.

IY. The next complaint is that the court erred in giving instruction numbered 2 for the plaintiffs. This instruction is copied bodily from Moore v. McNulty, 164 Mo. l. c. 121 and 122, and in that case it was approved. It was the third in a series of instructions asked by the plaintiff. All the instructions are set out and the court then used this language: “These instructions, with the exception of the fifth for plaintiff; fairly submitted the issue to the jury. The fifth given for plaintiff is so involved and obscure that we opine it is improperly copied. As it now stands its only effect would be to confuse and mystify the issue.”

This instruction in exact terms, therefore, had the express approval of this court, in a case wherein the questions raised were largely upon the instructions. We see no reason to depart from the opinion of Gantt, J., in the McNulty case.

Y. It is next urged that instruction numbered 6 .given for plaintiffs, was error. This instruction reads:

‘ ‘ The court instructs the jury that, if they believe from the evidence that Marion Norman was the son of the testator, Wesley Norman; that, at the time of the making of the paper purporting to be his will and for several years prior thereto, he sustained confidential and fiduciary relations towards his father, and that he resided with his father until his death, and had complete control of the household affairs, had the close and implicit confidence of his father, that his father looked to him for advice, counsel and direction; that he had sole control and management of his father’s business, property and affairs, and that he is the only substantial beneficiary in said will, then the law presumes that said purported will is the result of undue influence of the said Marion Norman over the said Wesley Norman; and unless such presumption is rebutted by a preponderance of the evidence, you should find that said paper writing read in evidence is not the last will and testament of the said Wesley Norman, deceased, and the burden of overcoming such presumption is on the defendant.”

This instruction is along proper lines. It follows the opinion of this court upon the former trial. Some of the language might be judiciously changed, but in substance it is correct. It is predicated upon the facts in evidence, and simply says to the jury that if they find from the evidence certain facts, then undue influence will be presumed, and further that it devolves upon the defendant to rebut by the proof the existence of undue influence. The question, and the authorities bearing thereon, were discussed in the prior opinion, and we shall not repeat here. There is nothing new in the evidence or the authorities cited. They were reviewed at the last hearing.

VI. Another assignment of error is that counsel for plaintiffs made improper remarks to the jury under a stipulation filed in the case. By stipulation it was agreed that either party might read the evidence of any witness at the former trial from the former bill of exceptions, and this stipulation was broad enough to-include witnesses who were present. Both sides acted under this stipulation. The defendant, although personally present, did not testify, hut his evidence was read from the former transcript of the case. It is charged in the motion for a new trial and a subjoined affidavit thereto, that counsel for the plaintiffs took occasion to severely criticise the defendant for not having testified in person. This complaint is found for the first time in the motion for new trial and the subjoined affidavit. There is nothing in the bill of exceptions to show that any objections were made to these remarks through the course of the trial, or that any exceptions were taken thereto. That you cannot preserve a point on such remarks by merely setting them out in the motion and sustaining such averment by an affidavit has been often passed upon by this court. See Norris v. Whyte, 158 Mo. 20, and the numerous cases therein cited.

The substantial and leading contentions of the defendant we have noted. We have read again the evidence in the record. We feel that the jury reached a righteous verdict in the cause, and unless there was error upon the part of the court it ought to be affirmed. We discover no substantial error upon the part of the court, and the judgment is therefore affirmed.

All concur except Woodson, J., not sitting.


source: Caselaw Access Project

author: GRATES, J.

license: Public Domain

text:
    FANNIE NALL et al., Appellants, v. J. R. CONOVER.
    Division One,
    November 27, 1909.
    1. TITLE: Common Source. If there is an agreed common source of title, or both parties assume a common source of title, subject to certain exceptions, the plaintiff need not go back of such common source in making his case. But if no such common source of title is assumed, admitted or proven, then, under Sec. 650, R. S. 1899, in a suit to ascertain and quiet the title, plaintiff, if he .relies upon his paper title, must prove his interest in the land by a continuous chain beginning with the Government.

      2. -: Certificate of Entry: Carleton's Abstracts. A certificate of entry of swamp lands, made from the county register’s books, is not evidence of title, nor did the statute, making Carleton’s abstract books evidence of title, intend that an entry therein of an abstract of such a certificate should be held to be evidence of title. The law did not provide that the county register should keep a record of certificates of purchase. It required • the certificate to be made in triplicate, one given to the purchaser, one to be retained by the county register, and the other to be sent to the register of lands at Jefferson City, and on presentation by the purchaser of his certificate of purchase from the register, to the county receiver, and the payment of the money, the receiver was required to issue triplicate receipts, one for the purchaser, one to be retained in his office, and the other to be transmitted to the register of lands at Jefferson City, and then if the certificate from the county register and the receipt from the county receiver, as transmitted to the register of lands at Jefferson City, agreed with each other, the Governor caused a patent to issue. Plainly, an entry in Carleton’s abstracts of an abstract of a certificate of entry “recorded in Register’s Book No. 1, page 34,” is not evidence of legal title, and in the absence of a showing that the money was actually paid is not evidence of equitable title.
    3. -: Common Source. Where plaintiff claims through one, who had no paper title, and defendant claims through that one and another, neither of whom had any paper title, it cannot be said that a common source of title was either assumed or shown, nor in this case was it admitted.
    4. QUIETING TITLE: Decree for Defendant: Limitations. The Statute of Limitations runs against the county as to swamp lands granted to it by the State. And while defendant does not show that the county ever parted with the title, yet if he shows that his ancestor took possession under a warranty deed from one who thought he had bought from the county and held possession thereof for ten years, it is proper, in a suit against him, under Section 650, R. S. 1899, to ascertain and determine the title, for the court to decree title in him, where plaintiffs have failed to show any title.
    5. LIMITATIONS: What Shows. Where defendant’s ancestor bought four hundred acres of land, including the eighty in suit, by warranty deed, from one who thought he owned it, and moved upon the tract and cleared a part, claiming the whole, and sold the whole to another who for more than ten years actually claimed title to the whole, and, lived upon a corner of it, and cultivated this corner and other portions, and got his firewood from the eighty in suit for more than ten years, got rails therefrom for the entire farm, cut and had sawed timber therefrom, and paid taxes thereon, although it was never fenced, and later sold it to defendants who have since paid taxes thereon, and no one else has, these facts establish defendant’s title by limitation.
    Appeal from Pemiscot Circuit Court. — Row. Henry C. Riley, Judge.
    Affirmed.

      Jere S. Gossom and S. J. Corbett for appellants.
    (1) The evidence in this ease shows, a reliance upon a common source of title by both plaintiffs and defendant, Thomas C. Powell, and this made a prima facie case for plaintiffs. Harrison Machine Works v. Bowers 200 Mo. 219 ; Finch v. Ullman, 105 Mo. 255; Smith v. Lindsey, 89 Mo. 76; Dixon v. Hunter, 204 Mo. 390. Carleton’s abstract of title and the entries therein relative to the title of the land in question, offered by plaintiffs, without objection on the part of defendant, shows a perfect title in plaintiffs. Graton v. Land & Lumber Co., 189 Mo. 322; Harrison Machine Works v. Bowers, supra; Dixon v. Hunter, supra. This rule applies to cases under section 650, supra, as well as to cases in ejectment. Harrison Machine Works v. Bowers, supra; Graton v. Land & Lumber Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 686. (2) Unless the defendant has acquired a better title from Thomas C. Powell than plaintiffs, then the court erred in not declaring the law as prayed for by plaintiffs at the close of all evidence in the case. From a casual observation of defendant’s chain of title, it is obvious that he has totally failed to deraign his title back to Thomas C. Powell, the common source. There is nothing in the record that shows any conveyance from Thomas C. Powell, or from anyone else, to Jesse Huffman. Besides, if the defendant had intended to rely upon the title bond, he should have pleaded it. Couch v. Harp, 201 Mo. 457. (3) The court erred in permitting defendant, over plaintiff’s objection, to offer evidence for tbe purpose of establishing title by the Statute of limitations. The Statute of Limitations was not pleaded by defendant as a defense. Stevenson v. Smith, 189 Mo. 447. (4) The court erred in permitting defendant to offer testimony attempting to show that Powell had received money for the land from William Johnson’s administrator, there being no estoppel pleaded by defendant as a defense. If defendant relied upon an estoppel he should have pleaded it. Estoppel must be pleaded. Unless estoppel is pleaded it has no place in the case. Estoppel in pais must be specially pleaded. Keeney v. McYoy, 206 Mo. 42; Avery v. Railroad, 113 Mo. 561; Swinhart v. Railroad, 207 Mo. 423; Bray v. Marshall, 75 Mo. 330; Noble v. Blount, 77 Mo. 242.

      Ward & Collins for respondent.
    (1) If Thomas C. Powell is the common source of title there was no admission to that effect; and appellants did not undertake to show it. Thomas C. Powell had only a register’s receipt. Nothing more and nothing less; and it did not even entitle him to a patent. Our contention is (a) that Thomas C. Powell, from whom appellants’ ancestor bought this land, is not shown by appellants to have any title whatever in the land, because they only show that under section 4 of the law, he had selected this land and did not show under section 5 of the above law that he had paid for the land so selected. And (b) if Thomas C. Powell had selected this land and then had paid the receiver for it under section 5, he would then only have an equitable title to the land and would only be entitled to a patent by complying with section 6 of the above law; and that without complying with that law and obtaining this patent, the said Thomas C. Powell was “not the absolute owner in fee simple” and these appellants claiming under him were not the absolute owners in fee simple, as pleaded in their petition in this case. The appellants having pleaded a fee simple title and failing to show any at all, or at best an equitable title, cannot maintain this suit. Stewart v. Lead Belt Co., 200 Mo. 281. Was the common source of title established by respondent? We admit the law to be that if the common source of title is agreed upon or is proven in the case, then all the defects incident to the title arising prior to the common source are defects common to both parties and are immaterial. Harrison Machine Works v. Bowers, 200 Mo. 235; Stewart v. Lead Belt Land Co., 200 Mo. 291; Charles v. White, 214 Mo. 211; Gage v. Cantwell, 191 Mo. 698. The question here is, did we show common source of title for appellants so as to cure the defects of appellants ’ title ? . It is true that this title bond was made to William Johnson by Thomas C. Powell, but it was also made by John H. Powell. Does that make Thomas C. Powell the common source of title? Maybe we are claiming our title from John H. Powell. We are not required to select Thomas C. Powell merely to make out a common source of title for appellants; if they get no title through Thomas O. Powell and we are claiming from John H. Powell, they can take no advantage of the defect in John H. Powell’s title. Therefore, on that score, we did not make out the common source of title for them. (2) Millard Cotton’s •having been in the actual, peaceful, open, continuous, adverse possession of a part of this land under color of title to the whole tract and exercising acts of ownership over the whole tract for a. period of more than 10 years, gave him fee simple title to it, which he had a right to convey, and did convey, through mesne conveyances to the defendant in this case. Sec. 4262, R. S. 1899; Callaway Co. v. Nolley, 31 Mo. 393;' McDey v. Carr, 159 Mo. 648; Potter v. Adams, 125 Mo. 118; Bit-tie v. Mueller, 13 Mo. 335. The effect of a deed which creates color of title is to extend whatever acts of possession the grantee had of the land or any part thereof, to the whole tract described in the deed. Heiman v. Bennett, 144 Mo. 117; Crisper v. Hannaben, 50 Mo. 546; Mississippi Co. v. Vowels, 101 Mo. 225; Callahan v. Davis, 103 Mo. 444; Johnson v. Prewitt, 32 Mo. 553. Payment of taxes on the land, cutting and hauling fire wood, sawing timber and making rails on this land constitutes the “usual acts of ownership.” Carter v. Hornbáck, 139 Mo. 238; G-olterman v. Schiermeyer, 111 Mo. 404; Pharis v. Jones, 122 Mo. 125. (3) The Statute of Limitation runs against a county. Dunklin Co. v. Chouteau, 120 Mo. 575; Cunningham v. Snow, 82 Mo. 587; Simpson v. Stoddard Co., 173 Mo. 421; Palmer v. Jones, 188 Mo. 163; Callaway Co. v. Holley, 31 Mo. 393. The Supreme Court has never said in a suit to determine title under said section 650' that it was necessary to plead the Statute of Limitation in. order to prove it, and we maintain that there is nothing in that contention of appellants for two reasons: (a) Respondent’s first count in his answer is a denial that plaintiffs are the owners of the land; an admission that defendant claims the title; and an averment that defendant is the owner in fee and plaintiffs have no right, title or interest in the land. Now, we maintain that under that count in the answer, we can prove any facts that either go to show that defendant has no title to the property or that go to establish title to the land in respondent. We have more here than a general denial. We have a special plea that the title is in us and state what title we have. We admit we claim title to the land. We deny specially appellants’ title; and we maintain that we are entitled to prove the Statute of Limitations in this suit “to try, ascertain and determine the estate, title and interest of. the plaintiffs and defendant herein respectively” as pleaded by appellants. Under a general denial in ejectment suits the defendant may show that plaintiffs never had a •cause of action or that plaintiffs’ claim is fraudulent ? or that plaintiffs’ right is barred by limitations. Patton v. Pox, 169 Mo. 97; Coleman v. Drane, 116 Mo. 387. There'is more reason in permitting the Statute of Limitations to be proved in this sort of a suit than in ejectment cases, because here appellants, to make out their case, pleaded and try to prove “that defendant claims some right, title and interest in and to the land in controversy and that said claim is adverse and prejudicial to these plaintiffs; and pray the court to ascertain and determine such claims by and between the plaintiffs and defendant, respectively.” Clashing v. Powell, 130 Mo. App. 576; Jones v. Rush, 156 Mo. 364; State ex rel. v. Rau, 93 Mo. 126. Prom the very nature of this case, much more so than in ejectment suits, defendant ought to be permitted to prove anything that would establish his title to the land, (b) Under the second count of respondent’s answer, he pleads a counterclaim, which is nothing more nor less than a suit under section 650, wherein he claims to be the owner of the land in controversy and that appellants claim some right, title or interest, prejudicial to him, and prays the court to try, ascertain and determine the title between plaintiff and defendant respectively. This answer set up a good cause of action under section 650. Spore v. Ozark Land Co., 186 Mo. 656.' To this counterclaim, appellants filed a general denial and, undoubtedly,. on' this issue we would be permitted to prove whatever title we had. Sec. 602, R. S. 1899 ; Knox v. Brown, 103 Mo. 223; Spurlock v. Railroad, 93 Mo._530; Pomeroy v. Benton, 57 Mo. 531; Strauss v. Railroad, 102 Mo. App. 644; Banchor v. Gregor, 9 Mo. App. 102. (4) Appellants’ contention that the court erred in permitting us to prove estoppel without pleading it, is without foundation. We did not plead estoppel and did not undertake to prove it.
   GRATES, J.

Plaintiffs, the heirs at law of Robert C. Nall, deceased, bring this action under section 650, Revised Statutes 1899, to have the court declare their interest in and to eighty acres of land in Pemiscot county. The petition is practically in usual form. Therein, they allege that Robert C. Nall was the owner in fee simple of this land and died so seized thereof, and aver that they, his heirs at law, are now “the absolute owners in fee simple and claim that title” to the real estate mentioned. They charge that defendant claims some title, estate or interest in the land, the nature of such claim being unknown. They then ask the court to ascertain and determine title.

By answer, the defendant first denies that plaintiffs were owners of the land and admits that he claims title thereto and avers that he is the owner thereof in fee. For a second count in the answer denominated “another and counterclaim” the defendant sets up what is usually found in a petition under section 650', and winds up with the usual prayer for the court to ascertain and determine title.

Reply was a general denial of all new matter in the answer.

The cause was tried before the court. By its judgment the court found and decreed the title to be in defendant, and from such judgment the plaintiffs have appealed.

Plaintiffs, to make their case, introduced in evidence the Act approved March 28, 1901, making C'arleton’s Abstract Books, or certified copies of the entries therein contained, evidence of land titles of Pemiscot county. There were four entries from these abstract books introduced hy plaintiffs, only one of which may be required to be noted in detail. Entry No. 1 shows that the land in dispute passed by act of Congress to the State of Missouri: said act of Congress of date September 28th, 1850'. Entry No. 2 shows title passing from the State to Pemiscot county by patent dated December 24th, 1875. Entry No. 3 thus reads:

“Pemiscot County to Thomas C. Powell, Certificate of Entry No. 951, dated May 8, 1858; consideration $100; recorded in Register’s Book No. 1, at page 34; lands conveyed, the West half of the North West quarter of Section No. 17, in Township No. 17 North, of Range No. 13 East.”

Entry No. 4 shows a warranty deed from Thomas C. Powell and wife to Robert C. Nall, dated October 24th, 1859.

Plaintiffs then showed the death of Robert C. Nall on December 18th, 1879; and that they were his lawful heirs, and rested their case.

Defendant offered instruments affecting the title thus:

From Carleton’s Abstracts, the following:

“Thomas C. Powell and John H. Powell to William Johnson. Title Bond. Dated August 15, 1857. Filed and recorded March 13, 1858. Book “A.” Page 535. Consideration $480.00. Acknowledgment regular. The above Bond is for the Northwest quarter of section 17, Township 17, Range 13, East. Containing 160 acres.”

Then a warranty deed from Jesse Huffman and wife to John Cotton of date January 25th, 1872, conveying this and other lands. By his deed of September 22nd, 1879, John Cotton conveyed the same lands to Milliard F. Cotton. Milliard F. Cotton conveyed the northwest quarter of section 17, township 17, range 13 east, to S. N. McAdow. This includes the land in dispute in this ease. April 18th, 1895', S. N. McAdow conveyed the same land to Ceorge W. Alvey. May 15th, 1895, George W. Alvey conveyed to Nelson J. Ball the same land, except the southeast forty thereof. November 3rd, 1900, Nelson J. Ball conveys the same 120 acres to T. L. Price. May 8th, 1901, T. L. Price conveyed the same 120 acres, which includes the 80 acres in dispute in this case, to W. P. Carter. July 18th, 1903, W. P. Carter conveyed the same 120' acres to the defendant, J. R. Conover.

Defendant then proved by witnesses that Thomas C. Powell admitted that they had received the pay for the land mentioned in the bond for a deed. They also showed by parol that the same land was sold at an administrator’s sale of the William Johnson estate, and that Jesse Huffman was the purchaser.

In addition to the record title above disclosed and to the facts above stated, the defendant attempted to -show title under the Statute of Limitations. In so doing, it appears that most of the active parties were dead. Johnson was dead, Powell was dead, Huffman was dead, in fact all of the leading factors in the transaction were shown to be dead.

It was shown, however, that Jesse Huffman, the alleged purchaser at the administrator’s sale of William Johnson, deceased, sold and conveyed about four hundred acres of land to John Cotton, which land was contiguous, and which tract included the eighty acres in dispute. This transfer, as above indicated, was by a warranty deed in January, 1872. Later, in September, 1879, John Cotton conveyed the same lands to his son, Milliard F. Cotton. This tract of four hundred acres or more included lands in section 18 and section 17 and section 20 in township 17, range 13 east, so situated as to be one contiguous body. It is shown by the evidence that John Cotton had built a house and cleared the land on that small portion thereof located in section 20. He had also cleared a portion of the east half of the southwest quarter of section 18', which comers with the land in dispute in section 17. Milliard F. Cotton, upon his purchase, took and held the possession of the entire tract from the date of his deed on to the time he sold it as indicated in the record evidence above stated. By the parol proof it was further shown that Milliard F. Cotton claimed the land in question in connection with his whole tract, hereinabove mentioned; that he actually lived upon and farmed a part of the four hundred acres comeriüg with the eighty in dispute, and that in connection with said occupancy he used the eighty in dispute for the purpose of obtaining firewood and rails for the balance of his farm and in addition cut and sold timber therefrom. In addition to these facts, it appears that Milliard P. Cotton so occupied and claimed said land from the date of his deed in 1879 to his conveyance thereof in April, 1895. Tax receipts were introduced showing payment of taxes on this land by Milliard P. Cotton from 1889' up to and including 1896, and further that from that time on-his subsequent grantees likewise paid the taxes up to the time of this suit. There is no evidence as to what John Cotton did toward payment of taxes, but there is evidence showing that he took possession of and cleared portions of the four hundred acres of land located in sections 20 and 18.

It must be borne in mind that all the records were destroyed when the court house of Pemiscot county was burned in 1882, which of course included the probate records and the tax records prior thereto. There is no evidence of a substantial character tending to show that the plaintiffs or any of them, or their predecessors in title, ever paid any taxes on this land.

There is substantial evidence tending to show that John Cotton claimed the entire tract from the date of the deed from Jesse Huffman and much stronger evidence tending to show that Milliard P. Cotton claimed title to this land and exercised acts of ownership thereover from the date of his deed in September, 1879.

This substantially states all facts necessary for a disposition of the cause.

I. As a preliminary question it should be determined whether or not there is a common source of title proven and if so what such common source of title is, for the record contains no admitted common source of title. To the end of fully discussing this point, we have set out in full the two record entries bearing thereon: .The plaintiffs claim that-a common source of title has been established by the proof. That such common source of title is Thomas C. Powell. In this contention they rely upon record entry No. 3 introduced by them, which shows a certificate of entry No. 951 to Thomas O. Powell, as recorded in Register’s Book No. 1 at page 34. To this certificate of entry they add the title bond executed by Thomas O. Powell and John H. Powell to William Johnson, the record of which was introduced by the defendant.

We' agree with the doctrine of Harrison Machine Works v. Bowers, 200 Mo. l. c. 235, wherein Judge T MMivr in effect held that the trend of our cases was to the effect that if there was an agreed common source of title, or both parties assume a common source of title, subject to certain exceptions, the plaintiff need not go back of such common source in making his case. It should be added now that if no such common source of title is assumed, admitted or proven, then, under section 650, the plaintiff must prove his interest in the land beginning with the Government. In other words, if he relies upon a paper title, as in this case, such paper title must be complete and adequate. To start with, the plaintiffs in this case were not relying upon an admitted common source of title, nor upon an assumed common source of title, nor did they attempt to prove a common source of title. When they closed their case they relied upon what they thought was a clear paper title, when supplemented by proof of the death of deceased and proof that they were the legal heirs of the last grantee in their chain of title. Had they stopped there, as they did, and the defendant stopped at the same point, and had there been a missing. link from their chain, the court could not have declared title in them. The question now is, was there a missing link in the chain of title as evidenced by the record evidence, and further if so has the defendant’s evidence supplemented theirs so as to change the result!

Let us take first the paper title of the plaintiffs. One link of that title was a register’s certificate under the Act approved March 1, 1855. Section 4 of that act reads: “When any of said lands shall be sold in any of the modes pointed out in this act, the register shall make triplicate certificates of the fact, describing the. land so sold by its numbers and quantity, to whom sold, and the amount of the purchase money per acre, and in the aggregate — one of which certificates he shall deliver to the purchaser, file one in his office, and transmit the other to the Register of Lands at Jefferson City, with an abstract containing the number of the certificate, the name of the purchaser, the number of the land, and the amount of purchase money.”

Prom the certificate, or rather the copy from Carleton’s Abstract Books, it would appear that Thomas C. Powell had taken the first step toward purchasing the land in question. But section 5 of the same act provides a further step to be taken. This section reads: “When a certificate of purchase shall be presented to the Receiver of Public Moneys, and the money paid, he shall issue triplicate receipts to the purchaser, stating the numbers and quantity of the land, the name of the purchaser, and the amount paid per acre, and in the aggregate — one of which receipts shall be delivered to the purchaser, one filed in his office, and the other transmitted to the Register of Lands at Jefferson City, with such an abstract as is required to be transmitted by the Register in the next preceding section.”

And section 6 of the same act further provides: “TJpon the receipt of said certificates, receipts and abstracts at the office of Register of Lands at Jefferson City, agreeing with each other, the Governor shall cause a.patent to be issued to tbe purchaser for the lands he shall have purchased.”

The record in this case fails to show any patent to Powell. It fails to show any compliance with section 5 of the act, set out, su-pra. It only shows that under section 4 of the act, supra, Powell selected o,r located the land as a purchaser. Of course, had it been proved that Powell, in pursuance of his selection or location as evidenced by the certificate of the register, had followed it up by a payment of the amount to the receiver of public moneys as provided in section 5, then there would have been in him an equitable title, even though a patent had not issued as provided for by section 6, supra. But such is not this case. Two questions are here presented, (1) is the register’s book of selections or locations, such a.book affecting land titles as was contemplated by the Act of 1901, which made Carleton’s Abstracts evidence of title, and (2) even if it is such a book, does the mere selection or location for purchase of a tract of land, evidence any title, either legal or equitable, until something further is done?

An examination of the Act approved March 1st, 1855, will show that it relates to ten counties, of which Pemiscot is one. The act provides that as to all the counties named therein, except Scott, Dunklin and Pemiscot, the county clerk shall be ex officio register of lands, and the county treasurer shall be ex officio receiver of public moneys. In the three excepted counties, i. e., Scott, Dunklin and Pemiscot, a register of lands and a receiver of public moneys were to be elected by the voters. They were required to give bond, but not a word said about their keeping a record, either public or private. Not being a record required to be kept by law, we hardly see how a mere abstract thereof can be made evidence of land titles, any more than .the abstract of any other private record or memoranda. Nior do we think that when the Act of 1901 together with, its preamble was passed, it was intended to make Car letón’s Abstract Books evidence of title further than they undertook to abstract instruments affecting titles which were required to be made public by record. But we need not pass upon this question now. The other matter is fatal to the paper title of plaintiffs. The only thing that plaintiffs claim is a certificate of purchase as provided in section 4, supra. These certificates are made out in triplicate, one going to the purchaser, one.to be retained by the register, and one to be sent to the register of lands at Jefferson City. NY provision here for any other record, except the copies aforesaid. Then by section 5, supra, when the purchaser presents his certificate of purchase from the register to the receiver, and pays the money, then the receiver issues triplicate receipts, one to the purchaser, one to be retained at his office and the other to be transmitted to the register of lands at Jefferson City. Then by section 6, supra, if the certificate from the county register and the receipt from the county receiver as transmitted to the register of lands at Jefferson City agree with each other, then the Governor caused a patent to issue.

It is clear under this law that the plaintiffs failed by their entry No. 3 from Carleton’s Abstracts to show either a legal or equitable estate. No attempt is made to prove the loss of the triplicate certificates, for at least one of them should have been in Jefferson City. No attempt to prove payment, either from the Receiver’s Books, or from the triplicate copy of the receipt on file in Jefferson City, if in fact any payment was made. No patent was in evidence. Had it been shown that the money had been paid, an equitable title might have resulted from that proof, but there is no such proof or even an attempt to make it. Under the proof presented by the plaintiffs neither legal nor equitable title was established in plaintiffs. Certificates of this character were held in judgment by this court in the recent case of Phillips v. Trust Co., 214 Mo. 669.

II. It thus appears that there is a missing link in plaintiffs’ chain of title, and therefore no decree could go for them unless there was a proven common source of title, behind which neither party could go. There is no admitted common source of title, and we think no assumed common source of title, because defendant by way of defense and in support of his cross-bill undertook to prove title by adverse possession under the ten-year Statute of Limitations. Going to the evidence as to whether or not it shows a common source of title, we find that plaintiffs claim under a certificate of purchase from Pemiscot county to Thomas C. Powell of date May 8th, 1858. The only thing outside of the Statute of Limitations introduced by defendant, is a title bond executed by Thomas O. Powell and John H. Powell to William Johnson, of date August 15, 1857, and by parol and record evidence they undertake to deraign title from that title bond forward. Whether they did so or not is immaterial on the question under discussion now. Does this record evidence prove a common source of title? We think not. Plaintiffs claim through Thomas C. Powell alone. Defendant attempted to deraign title from Thomas C. Powell and John H. Powell. There is a difference between a single grantor and two grantors. Plaintiffs claim through one,-who had no paper title, and defendant claims through two, neither of whom had a paper title. Under these circumstances it cannot be said that a common source of title was either assumed or shown. Nor was such admitted.

In Phillips v. Trust Co., supra, we had to deal with a certificate of purchase in New Madrid county, which is one of the ten counties mentioned in the Act of 1855. One August E. Shields had a certificate of purchase. This he assigned to Shapley R. Phillips. The following receipt was introduced in evidence:

“Received of Shapley R. Phillips two thousand two hundred and thirty-three dollars and seventy-four cents in payment of land bought of the county by Edward Coleman, ¥m. D. Waldrop and Augustus E. Shields, and in final payment for all land they bought at the May term, of our county land sales, in 1857. “August .14,1860.
“Geo. W. Dawson, Treasurer.”

Phillips was depending upon that receipt in conjunction with his assigned certificate from Shields for title or at least equitable title. Discussing this receipt this court then said:

“It will be observed by reading the Register’s certificate of sale of the land to August E. Shields, dated May 23, 1857, that Shields paid nothing whatever to John T. Scott, the register, for that certificate of purchase, and the only evidence offered tending to prove Phillips paid the. county for the land described in that certificate was the receipt of George W. Dawson, treasurer of the county, dated August 14, 1860. By reading that receipt it will be seen that it does not mention the land described in the’certificate of sale, dated May 23, 1857, signed by John T. Scott, register of the swanrp lands, but, upon the contrary, it in express terms acknowledges the receipt of the purchase money for lands sold by the county to Edward Coleman, Wm. D. Waldrop and Augustus E. Shields.
“No court could be warranted in finding that the lands sold by the county to the three persons named in the treasurer’s receipt were the same lands described in the certificate of sale, dated May 23, 1857. The legal import of the language employed in the treasurer’s receipt is that those three gentlemen purchased the lands therein mentioned as tenants in common and cannot be tortured into meaning that it refe,rred to separate tracts of land purchased by each of them in severalty. That being true, then there is no evidence that plaintiff or any of those through whom he claims title ever paid the county one cent for the land sued for; and it cannot be claimed that Phillips was the equitable owner of the land or that the county held the legal title thereto as trustee for the benefit of the plaintiff. The county, therefore, having never disposed of the legal or equitable title to the land, she had the perfect legal right to convey it to defendant’s grantors. ’ ’

So in this case it cannot be said that when one party relies, upon Thomas C. Powell alone for title, and the other relies upon Thomas C. Powell and John EL Powell, there has been proven a common source of title. Therefore the evidence failing to show either an admitted, an assumed or a proven common source of title, and the plaintiffs' having relied' upon their paper title alone, they must fail unless they show a clear record or paper title. This they failed to do, there being absent one link in their chain of title. There was no error in the judgment wherein it held that plaintiffs had no title to the land involved herein.

III. Was the decree right in decreeing title to the defendant? We think so.

Concede that plaintiffs have failed to deraign title from the county, and concede further that defendant has failed to deraign by conveyances a title from the county, then how stands the case? Plaintiffs claim that the common source of title is Thomas C. .Powell, but the evidence shows that they did not rely thereupon and attempted to deraign title from the government. Taking the proof both pro and con, it does show that Pemiscot county owned the land. It fails to show that by legal conveyance either the legal or equitable title passed from the county. It did not pass to Thomas C. Powell, as we have hereinabove shown. Neither did it pass to Thomas C. Powell and John H. Powell, so far as disclosed by this evidence. Bnt whilst this is true, the Statute of Limitations will run against a county. In the case of Dunklin Co. v. Chouteau, 120 Mo. l. c. 595, it is said: “Distinction must also be made between property held for strictly public purposes, as for streets, parks, commons and the like, and property held by the corporation in its private character. [2 Dill, on Munic. Corp., sec. 675.] This distinction is made in our present Statute of Limitations. [E. S. 1889, sec. 6772.] These swamp lands would not come within the terms of that section, and hence the Statute of Limitations would run in favor of one in adverse possession, even as against the county.”

It should be remembered that Dunklin county is one of the ten counties coming under the Act of 1855, as is also Pemiscot county.

Conceding then, as this case and others hold, that the Statute of Limitations will run against the county, it then becomes necessary to consider, in behalf of the defendant, whether or not either he or he and his predecessors in title have acquired title by adverse possession as against the county. We need not in this inquiry consider plaintiffs and their immediate predecessor in title, because they never acquired even an equitable title against the county. Under the proof, John Cotton in 1872, by warranty deed, acquired what he evidently thought was title to four hundred acres of land in one contiguous body. On this tract he moved and cleared a portion thereof, claiming the whole. A part of the land actually cleared and cultivated by him was in section 18, which adjoined to the west the land in dispute. In 1879 and whilst plaintiffs’ predecessor was yet living, this land (four hundred acres) was conveyed to Milliard F. Cotton, and he, as the proof shows, for much more than ten years actually claimed title to the whole tract and lived upon one corner of the tract, and cultivated this corner and other portions of the four hundred acres. As to the land in question, he got for more than ten years his firewood therefrom; he got his rails therefrom for his entire farm, including the tract in dispute, although the tract in dispute was never fenced; he cut and had sawed timber therefrom; he cut and sold timber therefrom; he paid the taxes thereon, and his successors in title have paid the taxes thereon since his conveyance. Plaintiffs and their predecessor in title have paid no taxes, as shown by the evidence. There are some general statements of paying taxes upon this and other lands owned by Mr. Nall, but no county officer could find a record thereof, and the testimony is nothing more than mere hearsay. Under the evidence in this record, we are of opinion that when John Cotton in 1872 took possession of this tract of four hundred acres, including the land in dispute, under a warranty' deed from Jesse Huffman, he took possession of the whole tract, and when his son followed in the possession in 1879, he likewise was in the possession of the whole tract, and that prior to the time Milliard F. Cotton conveyed, a complete title, under the Statute of Limitations, had ripened in him, and when he conveyed he conveyed a complete title in fee simple, which title has regularly passed by mesne conveyances to the defendant herein.

So believing, the judgment below is correct and should be and is affirmed.

All concur.


author: VALLIANT, J.

text:
    ALBERT H. SCHWYHART v. MARTIN A. BARRETT et al., Appellants.
    Division One,
    November 27, 1909.
    1. APPELLATE JURISDICTION: By Consent of Parties. Consent of counsel on both sides, that the Supreme Court has jurisdiction to hear and determine the cause, does not give the court jurisdiction.
    2. -: Federal Question: Removal of Cause. The constitutional provision giving the Supreme Court jurisdiction of the appeal “in cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question,” does not give said court jurisdiction where the only point is whether or not the trial court erred in refusing to permit the cause to be removed to the United States Circuit Court. Such a ruling did not involve the validity of the act. At most, it was an erroneous construction of a valid act.
    3. -: Amount in Dispute: Act of 1909: Interest. The amount in dispute, under the Act of 1909, giving jurisdiction of causes to the courts of appeals “where the amount in dispute, exclusive of costs, shall not exceed seventy-five hundred dollars,” meant the amount in dispute at the time the judgment appealed from was rendered, and not the amount in dispute at the time the act was approved. So that if judgment was rendered for $7,500, interest could not be added to that sum until the date of the act, June 12, 1909, so as to give the Supreme Court jurisdiction, but the case should be transferred to the proper court of appeals.
    4. -: -: Decision of Federal Courts. When a State court is called upon to construe a State statute relating to the jurisdiction of a State court, it is not always safe to follow a decision of a Federal court construing an act of Congress relating to the jurisdiction of Federal courts, because those courts exercise a peculiar jurisdiction and the acts of Congress concerning the subject are to he viewed from that peculiar standpoint.
    Appeal from Daviess' Circuit Court. — Hon. J. W. Alexander, Judge.
    Transferred to Kansas City Court of Appeals.

      Eicklin, Leopard S Eicklin and Brown'S Dolman for appellants.

      K. B. Randolph for respondent.
   VALLIANT, J.

Plaintiff sued the defendants, the Chicago, Rock Island and Pacific Railway Company, Martin A. Barrett, Frank Novak, and H. L. Reed, for damages for personal injuries alleged to have been sustained by him through the negligence of the defendants; the negligence of the railway company consisted, as the petition charged, in the negligent acts of the individual defendants who, it is alleged, were the servants of the railway company operating or directing the operation of its engine and cars which caused the injuries. Plaintiff recovered a judgment against all the defendants for $7,500' on December 14, 1906, from which judgment the defendants appealed to this court and the record was duly lodged here January 19, 1907. At the date of the appeal and the date of the filing of the record here the amount in controversy was sufficient to give this court jurisdiction, hut by an act of the General Assembly, approved June 12, 1909 (Laws 1909, p. 397), the courts of appeals were given jurisdiction in causes “where the amount in dispute, exclusive of costs, shall not exceed the sum of seventy-five hundred dollars.” And by that act all cases within its purview then pending in this eourt, not under submission, were to be transferred to the proper court of appeals to he there heard and determined.

Counsel on both sides have agreed that this court had jurisdiction and insist that it be not transferred; hut of course consent cannot give jurisdiction of the subject.

Counsel for defendants are of the opinion that there is a Federal question involved which gives this court jurisdiction under section 12 of article 6 of our State Constitution, the question being the right of the railway company to have the cause removed to the United States Circuit Court for trial.

Counsel on both sides are of the opinion that in estimating “the amount in dispute” with reference to the Act of 1909 interest must be added to the amount of the judgment appealed from, $7,500, from its date, December 14, 1906, to the date of the act of the General Assembly above mentioned, to wit, June 12, 1909, which would raise the sum beyond the jurisdiction by that act conferred on the courts of appeals.

I. The Federal question. The words used in that clause of section 12 of article 6, of our State Constitution which gives this court jurisdiction are: “In cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question.” To give this court jurisdiction under, that clause there must be a question of the validity of a treaty or the validity of a statute of or the validity of an authority exercised under the United States. Of course there is no treaty or statute in question and the only suggestion is that by proceeding to try the cause after the petition to remove was filed the validity of an authority exercised under the United States was denied. No one has questioned the validity of the act of Congress under which the application for removal was made, or that the cause should have been removed if it was one which under the terms of that act was removable. Even if the State court had misconstrued the act, the misconstruction would not have drawn in question its validity. In Vaughn v. Railroad, 145 Mo. 57, the defendant pleaded as a defense a compliance with a section of the Interstate Act of Congress, which compliance was denied in the reply, the court said: “The validity of that Federal statute was not drawn in question. The reply put in issue the averment of compliance with the law, not the validity of the law.” In Commission Co. v. Railroad, 157 Mo. 518, the court said: “While by the Constitution exclusive appellate jurisdiction is vested in this court in cases where the validity of a statute of the United States is drawn in question (art. 6, sec. 12), we know of no constitutional provision vesting such exclusive jurisdiction in this court in cases merely involving the construction of the Federal statutes.” In Carey v. Schmeltz, 221 Mo. 133, where the right of action was based on a statute of Colorado and it was claimed by appellant that a Federal question was involved, because the trial court having construed the Colorado statute to be a penal statute refused to enforce it, thereby refusing to give full faith and credit to the public act of another state as required by section 1 of article 4 of the Constitution of the United States, but this court held in that case that even if the trial court had misconstrued the statute and had based its judgment on such misconstruction, yet it did not question the validity of the statute, and decisions of the Supreme Court of the United States are cited in the opinion in that ease sustaining that view. Therefore, even if the trial court in the case at bar had misconstrued the act of Congress in reference to removal of causes, or if it had erroneously decided that under the facts of the case, as presented under the petition for removal, the defendant had not made out a case for removal under the act of Congress, still the validity of the act was not questioned or the authority to remove when a case under the statute was made. The worst that the defendant can say is that the trial court misconstrued the statute or misinterpreted the pleadings or misunderstood the facts, all of which questions the defendant would have the right to ask any appellate court which has jurisdiction of the cause to review, but they raise no Federal question, and we neither give nor intimate any opinion concerning them. We hold that there is no Federal question in the case and that we have no jurisdiction on that ground.

II. Until the Act of June 12, 1909 (Laws 1909, p. 397), the pecuniary limit to the jurisdiction of the courts of appeals, was $4,500, hut by that act those courts were given jurisdiction of causes “where the amount in dispute, exclusive of costs, shall not exceed seventy-five hundred dollars.” Does that mean “the amount in dispute ’ ’ at the time the judgment appealed from was rendered or does.it mean the amount in dispute at the time the General Assembly spoke, June 12, 1909? Other language in the act directing the transference of causes pending in this court shows that it was intended to apply to cases where judgments had been rendered and appeals had been taken years before, and the emergency section of the act shows that the General Assembly took cognizance of the overburdened condition of the docket of this court. We think the natural inference to be drawn is that the mind of the law-maker was directed to cases where the amount in dispute at the time the judgment appealed from was rendered did not exceed $7,500 and that there was no thought given to the date of the passage of the act or of the influence that date would have on the effect of the act itself.

If a plaintiff- brings suit for damages and states in his petition the amount for which he sues, if he is cast in his suit and appeals, we go back to the petition and say that the amount there claimed is the amount in dispute. If the plaintiff should in such case recover judgment for a certain amount and the defendant appeals the amount then in dispute is the amount of the judgment. The date of the dispute in the one case is that of the filing of the petition, in the other it is that of the rendition of the judgment, and in either case the amount in dispute is the amount for which the dispute could at that date have been settled. If not settled then and interest is added, it is added by operation of law, not as a part of the amount in dispute, but as a consequence of withholding it. Interest in such case is a mere incident, a mere sequence.

Interest has been running on this judgment three years or more, but if interest is to be considered as affecting the question of jurisdiction it would take a case in which the judgment was for $7,500 out of the operation of the statute if the interest had run but a few days or even one day. Therefore, if a judgment for $7,500 should be rendered in a circuit court today and application fo,r the appeal should be made a few days hence, the amount in dispute at the date of the appeal would be more than $7,500, and hence the court of appeals would not have jurisdiction. Or if the amount of the judgment was $7,200, and the appeal was taken within a few days of its rendition it would go to the court of appeals, but if the party aggrieved should wish to get his case into this court he could wait ten months during which the interest would accumulate to an amount which added to the original judgment would make the amount in dispute exceed $7,500, and he could then sue out a writ of error and bring his cause to this court. We are satisfied that the General Asembly intended to give the courts of appeals jurisdiction of causes wherein the amount in dispute at the date of the judgment did not exceed $7,500.

There is nothing in what this court said in Pitts-burg Bridge Co. v. Transit Co., 205 Mo. 176, to which we are referred, that is in conflict with what we have above said. In that case although the judgment was for an amount beyond the then pecuniary jurisdiction of the courts of appeals, yet the record showed that the defendant at the trial admitted that it owed the plaintiff the amount sued for, but pleaded two counterclaims, one for $4,300, the other for $142.74, the plaintiff admitted that it owed the last mentioned counterclaim but denied the other one for $4,300, and the trial .resulted in allowing the defendant $1,850 on the disputed counterclaim and deducted that amount from the amount sued for and gave judgment for the balance, and defendant appealed. This court said that the only amount in dispute was the difference between $4,300, which defendant claimed as due him on his first counterclaim, and $1,850, which the court allowed him on that claim, and therefore the case was within the jurisdiction of the court of appeals. In that case we took the pleadings and the judgment at its date.

In Yanderberg v. Gas Co., 199 Mo. 455, the plaintiff had sued in an action ex delicto, alleging her damages $5,000 compensatory, and $5,000' penal. The trial court sustained a demurrer to the evidence and plaintiff appealed. The record showed that there was no ground for the claim of punitive damages, and that if she was entitled to any compensatory damages they were not more than one or two hundred dollars. There is nothing in that case bearing on the question now in hand.

In State ex rel. v. Broaddus, 212 Mo. 685, it was held that after a judgment had been rendered for $5,500 and several months’ interest had accrued, a remittitur of $1,000 was entered, but the old judgment was not set aside and a new judgment entered as it should have been, the remittitur was to be treated only as a credit on the amount due on the original judgment which, with interest accrued at that time, amounted to $5,632, which left the amount due on the judgment $4,632 at the time the appeal was taken. It was held in that case that if when the remittitur was entered the old judgment had been set aside and a judgment for $4,500 entered it would have been within the jurisdiction of the court of appeals.

We are referred to some decisions of the Supreme Court of the United States, but we do not think they sustain the position of the learned counsel. When we are construing a statute of our own State, relating to the jurisdiction of our State courts it is not always safe to follow a decision of a Federal court construing an act of Congress relating to the jurisdiction of Federal courts, because those courts exercise a peculiar jurisdiction and the acts of Congress concerning the subject are to be viewed from that peculiar standpoint.

In Zeckendorf v. Johnson, 123 U. S. 617, the judgment of the trial court was for $4,304.93, the cause was appealed to the Supreme Court of the Territory of Arizona where a judgment of affirmance was had, and from that judgment, that is, the judgment of the Supreme Court of the Territory, appeal was taken to the Supreme Court of the United States. The court said: “The value of the matter in dispute is to be determined by the amount due at the time of the judgment brought here for review, to-wit, the judgment of the Supreme Court of the Territory, and not the time of the judgment of the District Court.” That is what we say in this case, that is, that the amount in dispute is to be determined by the amount due at the date of the judgment from which the appeal is taken.

And to the same effect is District of Columbia v. Gannon, 130 U. S. 227. In that case the court quotes with approval what it said on the same subject in Railroad v. Trook, 100 U. S. 112: “In cases brought here on writ of error for re-examination of judgment of affirmance in the Supreme Court of the District of Columbia, the value of the matter in dispute is determined by the judgment affirmed, without adding interest or costs.” Benson M. & S. Co. v. Alta M. & S. Co., 145 U. S. 428, is to the same effect.

Our conclusion is that “the amount in dispute” in this case, within the meaning of that term as it is used in the Act of June 12, 1909 (Laws 1909, p. 397), is $7,500, which is the amount for which the judgment was rendered December 14, 1906.

The cause is therefore transferred to the Kansas City Court of Appeals.

All concur.