author: FARIS, J.

text:
    JOHN HALL WILLIAMS v. M. L. SANDS et al., Appellants.
    Division Two,
    June 17, 1913.
    1. COMMON SOURCE: Idem Sonans. Where both plaintiff and ■ defendant claim under a common source of title, in a suit, in the first count of the petition one to quiet title, and in the second an action in ejectment, plaintiff claiming as heir of Sylvester H. Williams, under a patent issued to Sylvestus H. Williams, and defendants claiming, under a tax deed conveying the interest of Sylvester H. Williams and based on a tax sale in pursuance to a suit against and publication to Sylvastus H. Williams, founded on a tax bill against S. H. Williams, the rule of idem sonans has nothing to do with the ease. Both parties claim under a common source, and where that is the case, whether the suit be one at law to quiet title or in ejectment, the only question is, who has the better title from that common source?
    2. HEIRSHIP: Question of Fact: Substantial Evidence. The question of whether plaintiff is the only heir at law of the patentee, or whether he is an heir at all, is one of fact, and if there is substantial evidence to support the finding of the court sitting as a jury, that finding will not be disturbed on appeal, even though it is based wholly on plaintiff’s testimony, since the credibility of a witness is for the triers of the facts.
    3. TAX DEED: Prima Facie Valid: Rebuttal by Record. A tax deed, in the usual form and purporting to convey the interest of the common source of title, is prima facie valid; yet its prima facie validity may be rebutted by the introduction in evidence of the papers and proceedings in the tax suit, and if an inspection of them establishes the invalidity of the tax judgment, the sheriff’s deed founded thereon will also be held to be invalid and void and as conveying no interest.
    4. ---:--: Premature Non Est Return: Order of Publication. A return issued November 16th and made returnable “on the first Tuesday after the first Monday in December,” and returned non est inventus on the 23d of November, is prematurely returned, and an order of publication made at the December term and on the 21st day of February, is void. If the sheriff is unable to find the defendant and obtain service, it is his duty to retain the writ and not make non est return until the return day; and an order of publication based on a premature non est inventus return is void, and.in consequence the judgment is void, and the tax sale and sheriff’s deed made under such a judgment is invalid.
    5. LACHES: Suit to Quiet Title: Paying Taxes. The application of the doctrine of laches is bottomed on the theory that the acts of plaintiff have so misled defendant to. his injury, or so induced and lured him to make expenditures, or have put him in such attitude towards the subject-matter, that it would be inequitable and unconscionable to permit plaintiff to recover. But where defendants bought the land at a void tax sale in 1898 founded on a suit against plaintiff’s father, and entered into possession and paid taxes until plaintiff’s suit to quiet title and in ejectment was brought in 1908; and where plaintiff’s father did not die until 1905 and in 1903 plaintiff, who did not ■ live in the county, incidentally met one of the defendants, and said he would like to have the land back, as his mother’s money had paid for it, and was willing to pay defendants what it had cost them, and said defendant said they had bought it in good faith and paid the taxes and it would not suit them to surrender it to plaintiff, and plaintiff thereupon said he had “found some little irregularity in the title,” there is no element of laches in the case.
    6. -: -: Making Improvements. Where defendants, five or six years after they bought the land at a tax sale, made a lease to a miner, who put up a residence on it to be used by him while prospecting for minerals, under an agreement that the house was to be removed if the tenant did not purchase the land, and in order to obtain money to build the house he procured defendants to become sureties on his notes and secured them by a chattel mortgage on the improvements, and later settled the notes and obtained a release of the mortgage by executing a bill of sale of the improvements to defendants, the circumstances are such as to furnish m> basis for an application of the doctrine of laches.

      7. TAX SALE: Suit Within Three Years. Section 11506a, Revised Statutes 1909, requiring suit to be brought within three years from the time of recording the tax deed, applies only to tax deeds fair upon their face and issued pursuant to the Revenue Act of 1872, and it does not apply to a tax deed issued in pursuance to a void judgment for taxes.
    8. -: Recovery of Taxes. In a suit, which in one count is to quiet title, and in another is ejectment, defendants, who claim title under a void tax deed made in 1898, cannot recover the money paid out by them for taxes. Those who paid taxes on lands purchased by them prior to the Act of 1903 are not permitted to recover any such taxes in a suit at law, and that act had no retrospective operation and does not apply to any sales of land for taxes made prior to the time it took effect.
    9. -: -: Improvements: Equitable Relief. In an action at law wherein defendants’ tax deed made prior to 1903 is held to be void, defendants, although they put into their answer a plea for equitable relief, cannot recover taxes, interest and purchase price paid by them. If the petition is one in equity for relief from a void or voidable sale of land for taxes, made prior to the enactment of the Act of'1903, defendants then, if they lose the land, can recover back the purchase price and interest, and possibly, under certain circumstances, the value of the improvements, not by reason of that or other statute, but because of the principle that plaintiff must do equity before he can have equity; but in a cold action at law, defendants cannot recover the purchase price, interest and taxes paid. But where the suit is ejectment, this rule does not bar them from bringing another suit under Sec. 2401, R. S. 1909, to recover the value of the improvements made by them in good faith.
    Appeal from Benton Circnit Court. — Hon. C. A. Denton, Judge.
    Abbirmed.

      W. A. Dollarhide and Barnett & Barnett for appellants.
    (1) The court erred in finding for the plaintiff in» this case for the reason that the patent shows the land was patented to Sylvestus H. Williams, and the plaintiff’s evidence shows that his father’s name, under whom he claims, is Sylvester H. "Williams. Having failed to establish any title in Sylvester PI. Williams, the plaintiff as his heir cannot recover. Sylvestus and Sylvester are not idem sonans. 29 Cyc. 276; 16 Am. and Eng. Ency. of Law, p. 125. The following names have been decided not to be idem sonans-. Ammon and Amann: Amann v. People, 76 111. 188; Brimford and Binford: Entrenkin v. Chambers, 11 Kan. 377; Barnep and Barnap: Queen v. Carter, 6 Mod. 168; Burrul and Burril: Com. v. Gillespie, 7 S. & R. Pa. 469; Burger and Buerger: Shumaker v. Sehoen, 19 Pitts. L. J. 69; Catherine Swails and Ratherine Swails: Swails v. State, 7 Blackf. 324; Comyns and Cummins; Cruikshanks v. "Comyns, 24 111. 692; Dellia and Della: Yance v. State, 65 Ind. 460; Mitchell v. State, 63 Ind. 276; Humphreys v. Humphrey: Humphrey v. Whitter, 17 Ala.-; Otha and Oatha: Brown v. People, 66 111. 344; Schoonkoven and Schoonhover: Schoonhoven v. Gott, 20 111. 46; Shurtliff and Shirtliff: Gordon v. Austin, 4 Tr. 611; Service and Servoss: Sinkell v. Letcher, 40 111. 48; Semon and Seaman: 7 Ark. 70; Sensenderfer and Sensenderf: Com. v. Bowers, 3 Brewst. 350; Smith & Weston and Smith & Wesson: 61 Ind. 447; John S. Carrey and John S. Scarry: Scarry v. Lumber Co., 233 Mo. 686; Kitie and Katie: Miller v. Medley, 236 Mo. 694; Lane and Lean: Geer v. Lumber Co., 134 Mo. 85; Grofton and Graton: Graton v. Land Co., 189 Mo. 322; Griffin and Griffle: State v. Griffie, 118 Mo. 188; Simonson and Siemson-Simonson: Simonson v. Dolan, 114 Mo. 176; Emma and Emily: Burge v. Burge, 94 Mo. App. 15. (2) But assuming that Sylvestus and Sylvester Williams are one and the same person, yet we insist that there is no satisfactory evidence to show that the plaintiff here is his only heir at law. There is no administration shown which discloses the names of the heirs of Sylvester or Sylvestus "Williams, and plaintiff introduces no one, except himself, to show who the heirs of his father are. He rests wholly upon his own testimony and that so vague, uncertain and unsatisfactory that it would certainly be unsafe to render a judgment against us in his favor as the sole owner of this land. He seems to be juggling with his own name; he sues as John Hall Williams but says his name is John F. Hall; that he goes by the name of John Hall, John F. Hall, John F. Williams. He doesn’t disclose the fact that he goes by the name of John Hall Williams at any time, yet he sues in that ñamé. He further says that his father’s name was Sylvester Hall. Such statements make his testimony wholly unreliable,-both as to what his father’s name was and as to his own name. A judgment here for plaintiff would not preclude the real heirs of Sylvestus II. Williams, the patentee, from recovering. (3) The tax deed in question conveys a valid title to the defendants. It is valid on its face and it is primafacie evidence of title, and that the matters stated in it are true. Hogan v. Smith, 11 Mo. 314; Abbott v. Lindenbower, 46 Mo. 291; Ewart v. Davis, 76 Mo. 129; Stevenson v. Black, 168 Mo. 549. The insertion of the name of Addington in the order of publication is a mere clerical error, and the defendant or any one else reading it would know that it was such. Janes v. Manly, 58 Mo. 559. (4) The tax dfeecl in question was placed on record August 27, 1898, and this suit was brought August 6,1908; therefore this action is barred by the three years’ limitation. Any suit or proceeding against a tax purchaser for the recovery of land sold for taxes shall be commenced within three years of the time of recording the tax deed, and not thereafter. Sec. 11506-a, R. S. 1909. The tax deed, valid on its face, and of record more than three years, will bar recovery on the part of the former owner. Bird v. Sellers, 122 Mo. 23. While the Statute of Limitation is not pleaded here go nomine, yet the facts constituting the limitation are specifically pleaded and in ex-tenso. But the recovery in this case was on the second count, being a count on ejectment, and the Statute of Limitation need not be pleaded by defendant, in order to avail himself of it in an ejectment suit. It may be shown under a general denial. Bird v. Sellers, 113 Mo. 580; Hill v. Atterbury, 88 Mo. 118; Stocker v. Green, 94 Mo. 28; Fairbanks v. Long, 91 Mo. 628. (5) It was a condition precedent to plaintiff’s right to recover that he refund the taxes paid by the defendants to them before recovery. Sec. 11508, R. S. 1909; Mangold v. Bacon, 237 Mo. 496. Or at least, there should have been a decree for defendants for a lien upon the land for said taxes so paid. (6) Plaintiff, by reason of his laches, and those under whom he claims, is barred from recovering. At the time of the bringing this suit neither he, nor his ancestors, had paid the taxes for fifteen years. The land had been delinquent since 1893. This suit was brought in 1908. Every person is bound to take care of his own rights and to vindicate them in due season. Galena & S. W. R. Co. v. Ennor, 116 111. 55; Kline v. Yogel, 90 Mo. 239. Where a party claiming interest in land, does not assert his right thereto, and permits the adverse party to make improvements on the land and enhance its value, the court will not listen favorably to his demand for the same. Shelton v. Horrell, 232 Mo. 373; Pockman v. Meatt, 49 Mo. 345; McNess v. Sweney, 50 Mo. 388; Landrum v. Bank, 63 Mo. 48; Collins v. Rodgers, 63 Mo. 515; Kelly v. Hurt, 74 Mo. 561; Baker v. Yanderburg, 99 Mo. 378; Allen v. Mansfield, 108 Mo. 343; Craddock v. Short, 134 Mo. 449; Shea v. Shea, 154' Mo. 599.

      W. 8. Jackson for respondent.
    (1) The principle of idem sonans does not apply in this case. The question is one of identity. Was the patentee the father of the plaintiff, and if so, was the plaintiff the only heir ? In a question of identity, it is admissible to show the name a person bore, his personal appearance and conversations, and the account he gave of himself, his family connections and associations. 9 Am. & Eng. Ency. Law, p. 866 and note 3. Both parties claimed from common source of title, and that source was Sylvester H. Williams. The deed introduced by defendants and under which they claim, purports to convey the title of Sylvester and not Sylvestus H. Williams. Holland v. Adair, 55 Mo. 47; Charles v. Patch, 87 Mo. 453; Stevens v. Black, 168 Mo. 549. (2) The judgment in the tax suit was void. The court had no jurisdiction to render any judgment against Williams. First, because no order of publication was ever made, either by the court or by the clerk in vacation, pursuant to the provisions of Sec. 2022 and 2024, R. S. 1889. Second, because if one had been made it must have been under section 2024 based on the non est return by the sheriff, and the return was premature. Lumber Co. v. McCabe, 220 Mo. 166. Third, the judgment was void because the tax bill shows that the land was assessed to S. H. Williams and not to Sylvestus H. Williams. Burkham v. Mane-wall, 195 Mo. 506. Fourth, it was void because one J. M. Addington and not Sylvestus H. Williams nor Sylvester H. Williams was notified to appear and defend the suit in the pretended order of publication as the same was published. Charles v. Morrow, 99 Mo. 646; Myers v. McRay, 114 Mo. 382; Burkham v. Manewal, 195 Mo. 506. (3) While as to the ejectment count, it may not have been necessary to plead the Statute of Limitations, it was essential for defendants to do so as to the first count which was to quiet title. He must not only plead the Statute of Limitations, but must plead the particular statute upon which he relies. Murphy v. DePranee, 105 Mo. 62; Bird v. Sellers, 122 Mo. 32; Blodgett v. Schaffer, 94 Mo. .652. Section 11506a only applied to deeds made .pursuant to the law of 1872. These sections must stand or fall together. Abbott v. Doling, 49 Mo. 304; 23 Am. & Eng. Ency. Law, p. 487. (4) There could have been no recoupment of taxes paid by defendants, because in the suit to quiet title under Sec. 650, R. S. 1899, which was the law when this suit was filed, the court had no authority to do more than to ascertain and determine the title. And liens to which defendants might be entitled could not have been adjudged. Podesta v. Land Co., 152 Mo. App. 393. And they could not recover because the statute refers only to tax sales made after its passage. Manwaring v. Lumber Co., 200 Mo. 732; Sugg v. Duncan, 238 Mo. 428; Whiting v. Lead Co., 195 Mo. 509. (5) There is no room in this case for the application of the equitable doctrine of laches. Haartstick v. Gabriel, 200 Mo. 242; Lumber Co. v. McCabe, 220 Mo. 182.
   FARIS, J.

This is an action coming here on appeal from the circuit court of Benton county, involving the title to certain real estate situate in that county. The petition contains two counts; the first count is a suit to determine interest under section 2535; the second count is ejectment.

The answer is (1) a general denial; (2) a setting up of the manner in which defendants obtained their alleged title to the land in controversy, to-wit, by purchase thereof at a tax sale; (3) a plea of the Statute of Limitations, vaguely averred; (4) a plea averring laches, and (5), finally, that if the decision of the corrrt be adverse to them they have judgment, by way of counterclaim, for the value of certain improvements, which they aver they erected upon the land in question, and for the sums paid out by them as the purchase price at the sale for taxes, and for taxes paid on the land for some six years.

The reply was a general denial of the new matter; an admission as to the then possession of the defendants, and an allegation that such improvements g.s were placed on the land were of no value thereto, adding nanght to it of a permanent nature, and that the alleged improvements were put on the land by defendant J. G. White, acting* merely as a lessee of the land from defendants M. L. Sands and J. W. Sands, who are claiming the title thereto.

The cause was tried before the court sitting as a jury; no declarations of law were asked by or given for either side. The court' found the issues for plaintiff upon both counts of his petition; adjudging him on the first count to be the owner in fee thereof and divesting the defendants of all title thereto, ánd on the second count adjudging to him ouster of defendants from the possession of said land. No finding whatever was made upon the- equitable counterclaim of defendants for their improvements; for the sums expended by them as the purchase price of said land when bought at the tax sale, or for sums paid by them as taxes on the land since the tax sale and up to the-time of-the bringing of this suit. From the judgment in favor of plaintiff, defendants, after the usual procedure, duly took and now prosecute this appeal.

The suit was brought on the 6th day of August, 1908; the land was sold for taxes as the land of “Sylvastus H. Williams” and bought in by defendants M. L. Sands and J. W. Sands on the 12th day of August, 1898.

The proof adduced upon the trial on the part of plaintiff tended to show that plaintiff was the only child and the only heir at law of one Sylvester H. Williams; that said Sylvester H. Williams died on the 27th of April, 1905, leaving no widow surviving him. Plaintiff offered patents from the United States Government to the land in question, conveying the same in fee to. “Sylvestus H. Williams” of Benton county, Missouri. Plaintiff showed that he had found these patents among the effects of his father after the latter’s death; specifically that he had gotten them out of his dead father’s trunk.

Upon cross-examination, plaintiff testified that he had never lived in Benton county except about eight months; that his residence was in Kansas City; that he had been known there in late years as “John F. Hall” and had been called and known there also as “John F. "Williams;” that he had changed his name from Williams to Hall some seven or eight years prior to the trial. Plaintiff also testified that his father’s true name was “Hall;” that his father was a British subject who ran away from Toronto, Canada, at the beginning of the 'Civil War and enlisted in the army under the name of “Williams,” and that his father retained the name of “Williams’’ till his death. Plaintiff’s testimony further showed that he had himself personal knowledge of his father’s entry of the land in question and of his going to Boonville for the purpose of entering the same, and that the name mentioned in the patents is, or was intended to be, that of the identical person who was the father of plaintiff. By inference, though not pertinent here, it is to be gathered from the record that Sylvester IT. Williams died in the Soldier’s Home at Leavenworth, Kansas. The mother of plaintiff and the wife of the said Sylvester died the 19th of April, 1901.

Defendants offered a tax deed under a sale of the land for taxes, which deed was dated the 12th day of August, 1898; recorded on the 27th day of August, 1898, and purported to convey to defendants M. L. Sands and J. W. Sands in equal shares, the right, title and interest of “Sylvester H. Williams” in the land in controversy. Defendants also offered the petition in the tax suit, which suit was brought against “Sylvastus H. Williams” and the summons issued thereon which was made" returnable “on the first Tuesday after the second Monday in December next, A. D. 1897.” The sheriff’s return upon this summons is as follows:

“Sheriff’s Return. Executed the within writ in the county of Benton, on the 23d day of November, 1897, by making diligent search for the within named Sylvastus IT. Williams, and not finding him in my county.
A. F. Prtjssing, 'Sheriff, Benton County, Mo.”

This summons was issued on the 16th day of November, 1897, and was returned, so far as the record shows, on the 23d of November, 1897, though upon its face it was returnable on the “first Tuesday after the second Monday in December, 1897.” At the December adjourned term, 1897, and on the 21st day of February, 1898, as appears from the proof of an order of publication published in the “Warsaw Times,” a weekly newspaper published in Warsaw, Benton county, Missouri, an order of publication was made in the case of “the State of Missouri at the relation,” etc., “against Sylvastus H. Williams,” which, after reciting that the sheriff of Benton county, after making diligent search was unable to find the said ‘ ‘ Sylvastus H. Williams” in his said county and “has returned said summons non est as to said defendant Sylvastus Williams, and it further appearing to- the satisfaction of the court that the said defendants cannot be served with process in this case, it is therefore ordered by the court that the said defendant J. M. Addington [sic] shall be notified by publication.” Further proceeding said order seems to-be in proper form. Neither an order of the court nor any minute by the clerk was found in the records of the circuit court ordering or authorizing the publication of the order partially quoted above, though a search of the record was made. Upon the matter of an order, all that was shown was the printed proof of publication as taken from the newspaper and verified by the publisher thereof.

Upon the phase of the case touching the equitable counterclaim, the testimony of defendants tended to show that defendants M. L. Sands and J. W. Sands, who claim title to the land by virtue of their purchase at the tax sale, made a lease on the land to defendant J. G-. White in June, 1905, and that White had put up a building on it for a residence, to be used by him, presumably, while prospecting on the land for mineral. It further appeared that it was originally contemplated that White should remove this house if he did not purchase the land, It also appeared that in order to obtain the money to build the house on this land, White had procured his co-defendants, with others perhaps, to become security on his notes, securing his sureties by a chattel mortgage on the improvements, that is, the house put by said White on this land; that later, White had settled his notes and procured a release of the mortgage, by executing to his co-defendants and others, being his sureties, a bill of sale of the residence built by said White on the land here in suit. This residence constitutes the improvements in question. The proof further shows that defendants M. L. Sands and J. W. Sands paid the sum of $38 as the purchase price of these lands, and that they had paid some $50 or $60 in taxes for the six years prior to the bringing of the suit. It further appears that sometime in the year 1903 plaintiff met M. L. Sands, one of the defendants," at Cole Camp, and that he had a conversation with said defendant about the land at that time. According to defendant Sands, plaintiff mentioned the land in dispute here and said to him, “I will be willing to pay you back what it cost you; what you paid for it.” Defendant Sands says that in this conversation plaintiff rather appealed to his sympathy; said his mother was dead, that his father had been careless about the taxes, and for her sake he would like to have it back. Whereupon Sands said to plaintiff, “We bought it in good faith and paid for it and paid the taxes and it would not suit us at all,” and that plaintiff then said, “I found some little irregularities in the title.” This defendant deposes that plaintiff said nothing further'to him at that time; and didn’t say what this irregularity was, or what he was going to do about the land; that he heard nothing from him until the year preceding the trial, when the clerk notified him that this action had been filed against him.

This statement Avould seem to cover sufficient of the facts to make clear what is said in the subjoined opinion.

I. The first contention of defendants which we shall notice arises from their complaint that since the plaintiff claims under “Sylvester R. Williams,” and since the title shown by him was in “Sylvestus 3. Williams,” no recovery can be had by plaintiff, since the names “Sylvester” and “Sylvestus” are not idem sonans.

The difficulty in agreeing with this contention is that while plaintiff says that his father’s name was “Sylvester E. Williams” and while he shows a Pa^en^ among his father’s effects conveying the land to “Sylvestus R. Williams,” 7e^ the tax deed offered by defendants shows that they obtained the title not of “Sylvestus,” but of “Sylvester R. Williams,” and that they did this pursuant to a suit for taxes against “Sylvastus R. Williams,” founded upon a tax bill against “S. R. Williams,” and that the judgment, the special execution, and the notice of sale were all against “Sylvastus R. Williams;” while the order of publication found that “Sylvastus R. Williams” could not be found by the sheriff in his county, and ordered that “J. M. Addington” be notified by publication. In this condition of the record it is difficult to see what figure the doctrine of idem sonans cuts. Both plaintiff and defendants claim, as the record shows, under a common source of title, therefore the only question is who has the better title from that common source. This was a suit both to determine interest and in ejectment. In ejectment suits the rule as to the common source of title has prevailed in this State from the beginning. [Holland v. Adair, 55 Mo. 47; Charles v. Patch, 87 Mo. 463; Stevenson v. Black, 168 Mo. 549; Feller v. Lee, 225 Mo. 319; Sloan v. Chitwood, 217 Mo. 462.] No reason is known to exist why the same rule, if it were necessary, as it is not, to invoke it in this case, should not apply in a suit to determine interest under section 2535, and this court has many times held that it does apply. [Charles v. White, 214 Mo. 187; Harrison Machine Works v. Bowers, 200 Mo. 219.]

II. Some contention is made that there was not sufficient proof to show that plaintiff is the sole heir at law of the patentee of this land. The testimonJ ^le pMintiff himself rendered this fairly plain, if any weight and credit is to be given to his' testimony. This was a suit at law tried before the court without a jury, and without the giving of any declarations of law or even any request therefor from either side. There was proof upon which the court below might well have found, as it did find, that plaintiff is the sole heir at law of the identical person to whom this land had been patented by the United States. Upon the record here the court below in this sort of case is entitled to have urged in its favor the same presumption touching its finding of fact that this court has ever entertained as to the finding of a jury in a case at law. The court below having found these facts against defendants, we are not disposed to interfere with his holding.

III. We must test the goodness of the paper title ■of defendants upon the touchstone of the goodness of thesheriff’s deed as based upon the suit for taxes. The sheriff’s deed for taxes offered in evidence in this case, we may say is prima facie good. We say prima facie good for the reason that it is in the usual form and purports to convey the interest of Sylvester IT. Williams, who was the real owner of the land, but we bear in mind that “Sylvestus H. Williams” was the record owner of these lands; that the suit for taxes was against “Sylvastus H.-WUliams;” that the tax bill was against “ S. H. Williams;” that the sheriff was commanded to summons 44Sylvastus H. Williams;” that the non est return, the order of publication, the judgment, the special execution, the notice of sale, were all in the name of 44Sylvas-tus H. Williams.” Keeping these alleged defects in view we need not, however, pass upon or reason their effect, because the rule of law is that while a sheriff’s deed is prima facie proof of the matters and things therein stated, yet this prima facie showing as made by said deed may be rebutted by showing in evidence the papers and proceedings in the tax suit. If upon an inspection of the whole record the judgment is found to be invalid, the sheriff’s deed founded thereon is also invalid and void and conveys no title. [Cummings v. Brown, 181 Mo. 711.]

Turning to the summons in this case we find that it was issued on the 16th day of November, 1897; that it was returnable on the first Tuesday after seeond Monday of December, 1897, but that it was actually returned non est inventus by the sheriff on the 23d day of November, 1897, only a week after its issuance and some three weeks prior to the return day set out in the summons itself. In this condition of the record we do not think it necessary to consider the other alleged defects in defendants’ title urged as arising from the manner in which the order of publication was made, nor need we consider the contents of the latter. This court has held on numerous occasions that while it is the duty of an officer having in hand process for service, to serve the same speedily, yet if he be unable to find a defendant and obtain service, he must retain the summons until the return day thereof, and that an order of publication made upon a non est return iinprovidently and prematurely made before' the return day thereof, is void. [Lumber Co. v. McCabe, 220 Mo. 154; Cummings v. Brown, supra; Stanton v. Thompson, 234 Mo. 1. c. 14.] In Lumber Co. v. McCabe, the return made by the sheriff as to the time thereof, as well as to the contents thereof, is practically on all-fours with the one here at bar. In that case it was held that the order of publication in the tax proceeding was invalid and conferred no jurisdiction in the court over the person of the defendant. Upon the authority of this case, and numerous others, we need not pursue this question further.- Upon this view it is not necessary to consider the question of what effect, if any, the numerous alleged errors in the body of the so-called order of publication, or the error in the manner of obtaining the same, may have, as to rendering’ the judgment void. We hold that for the reasons already seen defendants took no title by their tax deed, or by the sale for taxes upon which the deed was bottomed.

IV. The defendants contend that even though it be found in effect that their paper title is bad, yet that plaintiff is estopped to claim title here by his laches. The particular fact, or facts, apparently upon which defendants predicate this contention, arise largely from the conversation had by M. L. Sands with plaintiff- in 1903. Plaintiff himself says nothing as to this conversation though he does not deny it. The substance thereof rests wholly upon the testimony of Sands. His testimony and all of the testimony in the case as to this conversation is as follows:

“After I bought this land I saw the plaintiff and had a conversation with him. That was about 1903; never saw him before, nor since until yesterday. I saw him on the train at Cole Camp in 1903. He had been down here; he told me he lived at Kansas City. I got on the train and he was on the train.' He heard somebody at the depot call my name, and he approached me and said his name was Hall; that we had bought some land for taxes that formerly belonged to his father, and he said his mother had furnished the money to enter it, and he would like to have it back because he said his father had been careless and the taxes had run on it and it had been sold and he would like to have it back. He said: ‘I will be willing to pay you back what it cost you; what you paid for it,’ and appealed to me, rather to my sympathy. Said his mother was dead and his father being careless about the taxes and for her sake he would like to have it back. I said: ‘We bought it in good faith and paid for it, and paid the taxes and it would not suit us at all.’ Pie said: ‘I found some little irregularity in the title.’ He didn’t say what it was, and didn’t say what he was going to do about it. I didn’t hear anything from him until last year.”

Upon the above testimony and upon the fact that defendants paid the taxes on this land from 1898 to 1905 when the suit was brought, is bottomed the contention of laches. At this time plaintiff lived in Kansas City. He was not in the county of Benton where the land lies at any time after the year-1903, when he had the conversation with defendant Sands, until the trial of this suit, so far as the record shows. The fact as to the erection of the house by defendant White need not be considered. The circumstances themselves are such as to take them out of consideration as any basis for the application of the doctrine of laches. If laches exist in this case it must come from the failure to sue for five years after this conversation, and from the payment, presumably with the knowledge of the plaintiff, of the taxes on the land by defendants. At the time of this conversation plaintiff had no interest whatever in this land so far at least as the legal title is concerned. He spoke of and urged an equitable title, not shown, or urged here now. The conversation occurred in 1903. Plaintiff’s father, the owner of the land, did not die until April 27,1905, and this suit was begun a little more than three years after the latter date. While it is true that courts, in order to prevent the working of injustice, will sometimes apply the equitable doctrine of laches though the time through which the same has operated is less, and often far less, than that provided by the Statute of Limitations (Shelton v. Horrell, 232 Mo. 1. c. 373),.yet the application of the doctrine of laches in such case is bottomed on the theory that the actions of plaintiff have been such, and have so misled defendant to his hurt, or have caused him such losses, or necessitated, or induced and lured him to make such expenditures, or have put him in such attitude with relation to the subject-matter, as that it would be inequitable and unconscionable to permit plaintiff to recover. In the case at bar we have no such condition. The plaintiff two years before he had any interest in this land saw the defendant M. L. Sands and undertook to adjust this matter with him; telling him that he desired to make him, Sands, whole, but that he wanted to get back the land; he further advised him that there were irregularities in the title of defendants, arising from defects in the tax sale. From this state of facts and upon the whole record, we are unable to see any facts which so far shock, or might shock, the conscience of the chancellor as to move him to hold against plaintiff’s recovery; absent facts which would put into motion the Statute of Limitations and absent time to ripen title thereunder. [Rutter v. Carothers, 223 Mo. 631.]

Y. Defendants contend that the Statute of Limitations known as the three-year Statute of Limitations contained in the Revenue Act of 1872, formerly section 222 of that act, and now section 11506a, Revised Statutes 1909, applies. This section was left out of the .revisions of 1879, 1889 and 1899, hut has been carried by the revising committee into the Revised Statutes of 1909, as section 11506a. When originally enacted it was a part of the revenue law of 1872. [2 Wagner’s Statutes, p. 1207, sec. 221; Laws 1872, p. 130, sec. 222.] This section was not carried into the law when it was amended and partly re-enacted in 1877, nor was it carried into the revision of 1879, but it has been held that it was not repealed by the act of 1877, nor was it repealed by implication by the revision of 1889. It was also held, however, that it applied only to the tax deeds which were fair upon their face and which were issued pursuant to the Revenue Act of 1872, and that it does not apply to a tax suit or a tax deed such as the one embraced in the case at bar. [Bird v. Sellers, 122 Mo. 1. c. 32; Blodgett v. Schaffer, 94 Mo. 652—in the latter case, the section was held to be repealed, but on this holding the ease is overruled by the case of Bird v. Sellers.] Accordingly and on the authority of the case of Bird v. Sellers, supra, we are constrained to hold that the three-year Statute of Limitations is not applicable to the state of facts presented by the record here, and does not apply to the tax deed in question here, and in no wise aids defendants, and so that point is disallowed them.

YI. Defendants complain'that the judgment rendered by the court below should have afforded them relief for money laid out for taxes paid by them and for improvements and other money laid out by them in the purchase of this land.

Taking the last point first, and considering the last point as well as the question of taxes paid by defendants, together, we conclude that there is no merit in this contention. Prior to the Revenue Act of 1877, there were provisions in the revenue law by which purchasers at tax sales could recover the purchase price as well as the taxes subsequently paid on the land by them. [Laws 1872, p. 129, sec. 219.] Between 1877 and the taking effect of the Act of 1903, there was no such law. During all this time those who paid taxes upon lands purchased by them at tax sales, on the failure of their title, were held by the law as having acted merely as volunteers, and were not permitted to recover in a suit at law any such taxes paid by them. [Carter v. Phillips, 49 Mo. App. 319.] The Act of 1903 (which was written by the writer of this opinion), does not apply and could not under the Constitution apply to any sales of land for taxes made prior to the taking effect of such act. This act has been many times construed as so' applying and not otherwise. It has been held that while it applies only to sales made subsequent to the taking effect thereof, if it applied, or if it had been attempted to apply it, to prior sales, then it would have been unconstitutional. Since this sale was made on the 12th day of August, 1898, none of its provisions apply to defendants, and they cannot recover the purchase price of the land, the taxes paid by them nor any interest thereon by virtue of the provisions of this act. [Haarstick v. Gabriel, 200 Mo. 237; Manwaring v. Lumber & Mining Co., 200 Mo. 718; Burkham v. Manewal, 195 Mo. 500; Petring v. Current River L. & C. Co., 111 Mo. App. 373.]

Since this is an action at law defendants are bound to recover by virtue of law and not by virtue of any of the provisions of equity, notwithstanding they have put into their answer a plea for equitable relief, by way of a shadowy counterclaim sounding in equity. Their status is unfortunately fixed for them by the attitude of plaintiff. It is not an equitable answer that gives relief, so as to permit defendants to recover back taxes, interest and purchase price, in the absence of the provisions of the Act of 1903, but it is the equitable petition filed by plaintiff for relief from a void or voidable sale of land for taxes that has this effect. This condition in case of a petition for equitable relief permits defendant, if he lose the land, to recover back the purchase price and interest, not by virtue of any act or statute, or by virtue of the Act of 1903, but by reason of the operation of the principles of equity which require the plaintiff to do equity before he shall be permitted to have equity. This was held and for this reason held, long prior to the statute of 1903, and the rule is as old as the rules and maxims of equity. [Yeaman v. Lepp, 167 Mo. 61.] If plaintiff had brought Ms action in equity, instead of his cold suit at law, defendants would have been entitled to recover the amounts expended by them for taxes, at least, and possibly (for we do not pass on this point), if they had so demanded in their answer, present all necessary requisites so permitting, their improvements made by them upon this land. But in a suit at law, as this is, we have already seen that absent a statute, and we had none when the land was sold, defendants cannot recover the purchase price, the taxes paid by them, or the interest on these several sums. "Whether recovery can be had for improvements depends of course upon the time and circumstances at which the improvements were erected. [Brown v. Baldwin, 121 Mo. 106.] It is true the court below made no finding whatever upon this point. It has been said by this court that he had no authority to do so in a plain ejectment suit. [Fairchild v. Cresswell, 109 Mo. 1. c. 39.] He may have believed that the law warranted his lack of finding, the peculiar circumstances of the manner of the placing of the improvements on the land considered. The fact that some years prior to the placing of the improvements thereon defendants had notice that there were some irregularities in the sale, might have operated upon the mind of the judge and brought about the lack of a judgment on this point. We see no reason why the requirements of good faith in the erection of these improvements should not apply to defendants as provided for in our statute (Sec. 2401, R. S.,1909) for the recovery of improvements following an ejectment suit. It may be that defendants may' be able to bring themselves within the provisions of this statute. -We see nothing upon the record to prevent defendants from retaining possession until an ascertainment of the value of their improvements and their right to recover therefor has been had, if they are so advised. Under the count to determine interest, based on section 2535 as now amended, it is more than probable that the court below had jurisdiction to hear, determine and adjudge the matter of compensation for improvements. The provisions of this section, when properly invoked in a proper case, would seem to be broad enough to cover fully the matter of equities thus arising. Be this as it may, we need not and do not' pass upon it here.. But we are not disposed, holding as we do on other points involved, to reverse and remand this case merely that there may be an adjudication upon the question of whether defendants were entitled to re-cover for improvements placed on this land in good faith by them or those under whom they claim. We are willing that defendants may yet pursue the remedies given them by section 2401 et seq., Revised Statutes 1909, for the purpose of ascertaining the value of their improvements and of their good faith in erecting them upon this land.

So holding it results that this case should be affirmed, without prejudice, however, to the right of the defendants, if they are so advised, and if the facts permit, to bring an action for the ascertainment of the value of the improvements. It is so ordered.

Brown, P. J., and Walter, J., concur.


source: Caselaw Access Project

author: BROWN, P. J.

license: Public Domain

text:
    NELSON REEVES, Administrator, v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant.
    Division Two,
    June 17, 1913.
    1. APPELLATE JURISDICTION: Constitutional Question: Settled Since Appeal was Taken. Where the appeal was taken, to the Supreme Court on the ground that the statute upon which the action was based is unconstitutional, and its constitutionality has been determined in another case since the appeal was taken, the Supreme Court will retain jurisdiction and dispose of the case upon its merits.
    2. NEGLIGENCE: Excessive Speed: Train Known to Be Approaching. Because a train was running at a dangerous rate of speed, far in excess of the ordinance rate, across the main thoroughfare of the town, a pedestrian on a sidewalk crossing the track was not justified in stepping onto the track when she knew the train was approaching at its usual rapid rate of speed, and was so close she did not have time to pass rapidly across before it struck her.
    3. -: -: -: Presumption That Defendant Would Obey Ordinance. A pedestrian, who knew that a train on schedule time usually ran through the town at a speed far in excess of the ordinance rate, was not justified in supposing that the engineer on the particular day she attempted to cross the track in front of it would do the unusual thing -of reducing the speed to the ordinance rate.
    4. -: Proximate Cause of Injury. Where deceased, seventy-two years of age, her hearing and eyesight somewhat defective, walked toward the railroad track, and when she was within six or eight feet of it looked towards the approaching train, which she knew did not usually stop at the town and with whose schedule she was acquainted, and which was running, as usual, at a speed of 35 to 50 miles an hour, and pulling up her dress skirts, walked rapidly onto the track and had- almost passed over when the engine struck and killed her, the proximate cause of her injury was her own contributory negligence,- and there can be no recovery, notwithstanding the ordinance fixed twelve miles an hour as the maximum speed of trains.
    5. --: -: Humanitarian Rule. The humanitarian rule, requiring the engineer of a train to discover a pedestrian's-peril and stop or slácken the speed thereof, does not apply when the pedestrian, is aware of the train’s approach, and so knowing looks toward the train and then walks on the track in front of it. Where the adult pedestrian close to the track looks towards the approaching train the engineer is warranted in supposing she sees it and will exercise ordinary intelligence to keep out of its way.
    Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
    Reversed.

      Scarritt, Scarritt, Jones é Miller for appellant.
    (1) The deceased was guilty of contributory negligence, as a matter of law. Laun v. Railroad, 216 Mo. 563; Pope v. Railroad, 242 Mo. 232; Moore v. Railroad, 176 Mo. 546; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Scbmidt v. Railroad, 191 Mo. 215; Lane v. Railroad, 132 Mo. 4; Kelsey v. Railroad, 129 Mo. 362; Walker v. Railroad, 193 Mo. 453. (2) Plaintiff cannot recover in this case upon the “last chance” or “humanitarian” theory, under the evidence and circumstances disclosed in the record and under the law as established by numerous decisions of this court. Plaintiff wholly failed to adduce any proof whatever as to several things that are essential to the making' of a case upon the last chance theory. There is no proof that the engineer of the train in question actually saw the deceased in a position of peril upon the track. Nor is there any substantial proof that the engineer might have seen deceased in a position of peril upon the track in time, etc. If the engineer saw, or might have seen deceased .as she approached the track, he had a perfect right to presume that she would stop or step back into a place of safety before going upon the track. Schmidt v. Railroad, 191 Mo. 234; Boyd v. Railroad, 105 Mo. 381; Moore v. Railroad, 176 Mo. 546. Nor is there any evidence -whatever that the deceased was in a position of unconscious peril, or, to put it differently, that she was in a position of peril, and unaware thereof and could not extricate herself therefrom. Plaintiff does not even charge in his petition that the deceased was in a position of peril and unaware thereof, and unable to extricate herself therefrom, nor does the instruction of the court on behalf of plaintiff submitting the last chance theory to the jury, require the jury to find that the deceased was in a position of unconscious peril and unable to extricate herself therefrom. Yet this is an essential feature and fact to be proven in a last chance case. Pope v. Railroad, 242 Mo. 232; Degonia v. Railroad, 224 Mo. 595; Kinlen v. Railroad, 216 Mo. 164.

      Yates & Mastín and Reed & Harvey for respondent.
    (1) The position of the respondent is that there was no contributory negligence, .(a) At the time the testimony shows Mrs. Cozby looked towards the train and when she was within a few feet of the track the train was four to six or seven hundred feet distant from her, and she had the right to assume that the train would observe the ordinance rate of speed, and if it had done so, she could have cleared the track in perfect safety. The cases cited by appellant involve situations essentially different from the case at bar. There are a great mass of reported crossing cases in this State and the principles of law applicable thereto are well settled,. The facts in this case bring it well within the class of cases in which verdicts and judgments for plaintiff have been upheld. Strauchon v. Railroad, 232 Mo. 587; Powers v. Transit Co., 202 Mo. 280; Riska v. Depot Co., 180 Mo. 168; Heintz v. Transit Co., 115 Mo. App. 671; Hutchinson v. Railroad, 161 Mo. 253; Sullivan v. Railroad, 117 Mo. 221; Hornstein v. United Ráilways, 195 Mo. 458. (b) ■ The law does not impose the duty on pedestrians to accurately determine the rate of speed, and misjudgment in tl^is respect does not convict such pedestrian of contributory negligence. Strauchon v. Railroad, 232 Mo; 600; Heintz v. Transit Co., 115 Mo. App. 671; Murray v. Transit Co., 108 Mo. App. 501; Powers v. Railroad, 202 Mo. 281; Riska v. Depot Co., 180 Mo.' 191; Hutchinson v. Railroad, 161 Mo. 246. (2) But conceding, for argument only, that Mrs. Cozby was guilty of contributory negligence, nevertheless, under the humanitarian doctrine, the plaintiff is entitled to recover. Murphy v. Railroad, 228 Mo. 56; Felver v. Railroad, 216 Mo. 195; Waddell v. Railroad, 213 Mo. 16; Holmes v. Railroad, 207 Mo. 163; Zander v. Transit Co., 206 Mo. 464; McQuade v. Railroad, 200 Mo. 158; Sites v. Knott, 197 Mo. 711; Klockenbrink v. Railroad, 172 Mo. 678. (a) Appellant maintains that because there is an allegation in the petition that Mrs. Cozby was in the exercise of due care, the humanitarian doctrine cannot be relied upon. Whatever of doubt there may have been in regard to the propriety of relying in the same count on common law negligence and the humanitarian doctrine it has now been definitely settled that this can be done. Clark v. Railroad, 242 Mo. 570. (b) The defendant was guilty of negligence per se in operating its train in excess of the ordinance rate of speed and in failing to observe the provisions of the ordinance relative to signals. Strauchon v. Railroad, 232 Mo. 587; McKenzie v. Railroad, 216 Mo. 19; King v. Railroad, 211 Mo. 1; Powers v. Railroad, 202 Mo. 280; Eppstein v. Railroad, 197 Mo. 735; Sluder v. Transit Co., 189 Mo. 164; Riska v. Depot Co., 180 Mo. 168; Hutchinson v. Railroad, 161 Mo. 253; Gratiot v. Railroad, 116 Mo. 450; Eswin v. Railroad, 96 Mo: 290. (c) The' engineer should have stopped the train at first appearance of danger. Holmes v. Railroad, 207 Mo. 162; Eckard v. Transit Co., 190 Mo. 619; Klockenbrink v. Railroad, 172 Mo. 687.
   BROWN, P. J.

Plaintiff sues as the administrator of Margaret Cozby to recovery statutory damages resulting from the death. It is alleged that Mrs. Cozby was killed, in the city of Oak Grove, Jackson county, Missouri, on December 23, 1905, by a lessee of defendant, while said lessee was negligently operating a railroad train over defendant’s road through said city.

Plaintiff alleges in his petition that defendant’s lessee negligently caused the death of Mrs. Cozby by (1) running its train in excess of twelve miles per hour, as prohibited by an ordinance of said city of Oak Grove; (2) by running its train through said city at an excessive, high and dangerous rate of speed, to-wit, thirty-five miles or more per hour; and (3) by neglecting to- observe the perilous position of said Margaret Cozby while she was on or near defendant’s track, and by neglecting to slacken the speed of said train after she was observed, so as to avoid running over, striking and killing her.

This action is based upon section 5425, Revised Statutes 1909, as amended in 1905, and appellant challenges the constitutionality of that statute. Since this appeal was lodged here the constitutionality of that law has been confirmed by this court in the case of Young v. Railroad, 227 Mo. 307, but as the appeal was properly granted to this court when taken, it is our duty to retain jurisdiction and dispose of the case upon its merits. [Dickey v. Holmes, 208 Mo. 664.]

The answer of defendant pleads contributory negligence on the part of deceased, and many other alleged defenses, but the conclusions we have reached render it only necessary to deal with the plea of contributory negligence.

At the time Mrs. Cozby was killed Oak Grove was a city of the fourth class, containing about 800 inhabitants. Said city has one principal street — Broadway— which runs north and south. The defendant owns a railroad track which passes through said city from west to east, crossing said Broadway street in such manner as to léave the residence part.of the city on the north side of the railroad and the business houses-therein on the south side of said railroad. There is a sidewalk and also a wagon road over defendant’s railroad track where the same crosses said Broadway street.

The deceased was a widow without minor children or other dependents. She was seventy-two years of age, and her hearing and eyesight somewhat defective. However, it was her custom to go unattended about the streets of Oak Grove, in which city she had resided two years next before her death.

The lessee of defendant on December 23,1905, ran a passenger train through said city of Oak Grove on defendant’s track at a speed of from thirty-five to fifty miles an hour. Said train was known as the “Red Flyer” and had been running from west to east on defendant’s track through said city of Oak Grove at about the same rate of speed during many weeks. Its regular time for passing Oak Grove was eleven o’clock in the morning, but it did not stop at that city. It was running on time December 23d, when it struck and killed Mrs. Cozby.

The plaintiff introduced G. W. Gillespie and wife who testified that they were driving south on said Broadway street in a buggy, intending to cross defendant’s track. Mrs. Cozby was walking in the same direction and was a short distance behind the Gillespies. When Mr. and Mrs. Gillespie were about forty feet from defendant’s railroad they heard an engine whistle and stopped and waited for the train to pass, but Mrs. Cozby passed their buggy and walked on southward. When she was within six or eight feet of deféndant’s track she looked westward towards the approaching train; she then pulled up her dress skirts and walked more rapidly onto, defendant’s track and had almost passed over same when the engine struck and killed her.

Mr. and Mrs. Gillespie, as well as other witnesses, testified that the train made quite a lot of noise, and that it was in plain view for about 1500 feet before it struck Mrs. Cozby, but that they only beard it whistle ■once. These witnesses did not bear tbe train ring its bell, nor see anything to indicate that its speed was slackened before it struck Mrs. Cozby.

One of plaintiff’s witnesses (a merchant) testified that be could bear the roar of the train when it was a half a mile away from the crossing. Walter Gibson, a seventeen-year-old boy, testifying for defendant, stated that be ran across defendant’s track just ahead of Mrs. Cozby, and that be told ber that the train was coming and advised ber not to attempt to cross in front of the train. However, be was not sure that Mrs. Cozby beard what be told ber about waiting for the train to pass.

After carefully considering the evidence of those who saw the train strike Mrs. Cozby, we find that the respondent has given a correct synopsis of that evidence in the following extract from bis brief:

“Mrs. Cozby approached the tracks of the defendant and when she got within four to six feet of these tracks she looked westward in the direction of the coming train and then proceeded across the tracks.”

Just bow close tbe train was to Mrs. Cozby when she started to cross defendant’s track is somewhat a matter of conjecture; no one could determine such an Issue with absolute accuracy. It is a certainty’ that tbe train was so close that she did not have time to pass rapidly across tbe track before tbe train struck her.

Tbe train was equipped with air-brakes, and art expert witness, testifying for plaintiff, stated that tbe train could have been stopped within a space of four hundred feet, and that its speed could have been slackened one-balf in a space of two hundred feet. Tbe preponderance of tbe evidence shows that tbe air-brakes were applied at the time or just after tbe train struck Mrs. Cozby, but tbe train ran about a half mile after the air brakes wure applied before it stopped.

OPINION.

Under the facts before stated, what was the proximate cause of Mrs. Cozby’s death? Was she guilty of such contributory negligence as will bar a recovery by her administrator in this case?

The train which struck and killed her was running at a speed far in excess of that permitted by the ordinance of Oak Grove, but as Mrs. Cozby had lived near that railroad for two years she is presumed to have known of the speed at which this train was usually operated. Because the train was running at a dangerous rate of speed did not justify her in stepping onto the track when she knew that the train was approaching at its usual rapid rate of speed.

The evidence for plaintiff proves almost conclusively that Mrs. Cozby did know the train was approaching. The plaintiff admits that fact, but endeavors to escape the force of that evidence by asserting that deceased had a right to suppose that defendant would obey the ordinance of Oak Grove and not run its train through that city in e&cess of twelve miles an hour.

The operation of the train at a rate of speed in excess of the ordinance of Oak Grove might have justified the imposition of a fine upon the employees of defendant’s lessee, provided the ordinance is valid (a point upon which we express no opinion here), but even if said ordinance is valid, we do not think its existence justified Mrs. Cozby in supposing that the engineer on the train would on that particular day do the unusual thing of reducing the speed of his train to twelve miles an hour. It is a well-known fact that people expect usual and customary things to happen, and do not expect unusual conditions to arise or extraordinary things to happen. Plaintiff has cited Strauchon v. Street Railway Co., 232 Mo. 587; Powers v. Transit Co., 202 Mo. 267, 1. c. 280; Riska v. Union Depot Railroad, 180 Mo. 168, and several simliar cases where judgments have been upheld for injuries caused by street cars which were running at a rate of speed in excess of that prescribed by city ordinance. Such cases are not very persuasive in an action like this, for the reason that street, cars are not supposed to run so rapidly as railroad trains. Street cars are usually required to stop at every street crossing where passengers are desirous of getting on or alighting, so that we naturally expect their speed to be limited to a lesser number of miles than railroad trains. This is particularly true where such street cars are running through populous cities.

Under the facts in this case we hold that Mrs. Cozby was guilty of such gross contributory negligence in stepping upon defendant’s track in front of a rapidly moving engine and train of cars as to bar a recovery for her death by the administrator.

The authorities are not in entire accord on this point, but the following well-considered cases seem to settle the law adversely to the contention of plaintiff and bar a recovery by him on the facts in this case: Pope v. Wabash Railroad Co., 242 Mo. 232; Laun v. St. Louis & San Francisco Railroad Co., 216 Mo. 563; and Green v. Missouri Pacific Railroad Co., 192 Mo. 131.

Respondent, however, insists that notwithstanding Mrs. Cozby saw or might have seen the train which caused her death before she stepped upon defendant’s track, the defendant is, nevertheless, liable because the engineer failed to discover her perilous position and stop his train or slacken the speed thereof.

This is not a case where the humanitarian doctrine can be applied, because the deceased was aware of the approaching train. That doctrine often does apply where the engineer of a train sees a pedestrian standing or walking upon the track and apparently oblivious to the impending danger, or where children are seen on or approaching a railroad track.

In this case Mrs. Cozby was an adult, and as she looked towards the approaching train the engineer was fully warranted in supposing that she saw it and would exercise the ordinary intelligence of an adult and keep out of its way. It is not contended that the engineer had knowledge of any defect in the eyesight or hearing of Mrs. Cozby, or. that he knew of her extreme age.

This case is, in many respects, like the case of Pope v. Wabash Railroad Company, 242 Mo. 232, where the party killed was walking on the track and knew of the approaching train but failed to leave the track in time to escape injury. In that case we held that neither the non-observance of a speed ordinance nor the failure to stop the train were proximate causes of the death. Upon the authority of that case, and others before ■cited, the judgment of this case should be reversed. It is so ordered.

Wother and Faris, JJconcur.


author: WILLIAMS, C.

text:
    THE STATE v. JAMES WHITE, Appellant.
    Division Two,
    June 17, 1913.
    ;1. INFORMATION: “Upon His Oath.” The phrase “upon his oath,” as used in the information, is synonymous with “upon his official oath” or “oath of office.”
    ;2. -: Assistant Prosecuting Attorney in Jackson County May Sign and Swear To. Under Sec. 10738b, Laws 1911, p. 393, an assistant prosecuting attorney in Jackson county has power to sign and swear to an information as such assistant.
    ;3. EVIDENCE: Conspiracy: Involving Husband of Prosecuting Witness. Evidence upon the question whether the prosecuting witness’s husband had been' discharged from employment with a detective agency for drunkenness or misconduct, is not admissible on the trial of defendant for robbing the prosecuting witness of her handbag and its contents, but evidence as to a conspiracy between the prosecuting witness and her husband, through which, by making a tool of defendant, the husband might regain his position with the detective agency, was admissible, and the defendant cannot complain of the trial court’s ruling in accordance with the foregoing statements.

      4. -: -: Cross-Examination. Evidence as to whether the husband of the prosecuting witness had been trying to secure employment from the city, or when he was last employed by anyone, or how long he had been working for himself, was not material to the issues in a prosecution of defendant for .robbing the prosecuting witness of her handbag and its contents, nor was it error, upon cross-examination, for the court to sustain an objection to an inquiry as to where she got the jewelry which she carried in the bag.
    6. -: Exceptions: Appeal. Where the court sustained defendant’s objections to certain questions asked of some of the witnesses by.the prosecuting attorney, and struck out the answers, after which defendant made no further request or objection, there is no matter of exception for the Supreme Court to review.
    ■6. -: Verdict: Appeal. Where there is substantial evidence to support a verdict, the judgment will not be set aside on appeal.
    Appeal from Jackson Criminal Conrt. — Hon. Ralph S. Latshaw, Judge.
    Affirmed.

      Holmes Hall and R. 8. Robertson for appellant.

      John T. RarJcer, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
   WILLIAMS, C.

Defendant was tried in the criminal court of Jackson county, Missouri, under an information charging him with robbery in the first degree, found guilty by the jury, and his punishment assessed at five years in the penitentiary. He appeals to this court.

The evidence on the part of the State tended to show that on November 29, 1912, between 6:15 and 6:25 p. m., the prosecuting witness, Mrs. Cora Rogers, was going east on Thirteenth street, in Kansas City, Missouri, from her place of work to her home in said city. When she reached a point near an alley between Locust and Cherry streets, on Thirteenth street, she saw a colored man coming towards her, and she stepped to one side. The colored man, when he came up to her, grabbed the hand bag which she carried on her arms. The handle to the hand bag was of new ribbon, and did not break when the bag was grabbed. The man pulled at the bag and drew the prosecuting witness a distance of about twenty feet up the alley, where she fell down, and the bag was pulled loose from the handle, her assailant running away with it. It contained a small sum of money, also rings and jewelry, all -of the value of about two hundred dollars. While Mrs. Rogers was being dragged into the alley she cried for help. A Mr. Showalter, who at the time lived in a house adjoining the alley, rushed out of his kitchen door just in time to see the colored man run away and the prosecuting witness attempt to get up. Mrs. Rogers, at the trial, identified the defendant as the man who assailed' and robbed her, stating that the street light was ample to allow a good view of him at the time. Witness Showalter testified that he was within about ten feet of the man when he started to run away, and that he got a good look at hipa in the light from the kitchen window and door of his house, and that he is positive that the defendant was the man he saw running away. He gave chase to him for about a block, but was unable to catch up with him. This was the State’s evidence in chief.

The defendant testified that he was born at Sedalia, Missouri, going through the high school there, and later attended the Western Baptist College, at Macon, Missouri, where he graduated; that he then attended' a law school at Topeka, Kansas, and that about ten months before the date of this alleged crime he came to Kansas City to assist his brother in the work of paper-hanging, so that he might obtain funds to enable him to start practicing law. He admitted that he had been arrested and fined for gambling since coming to Kansas City. He testified that a day or two before he was arrested for the crime charged against him he received information through his brother that the officers were looking for him, and that he then visited some of the police stations but was unable to discover what he was wanted for. He, however, did not visit station number four, the officers of which were looking for him. Defendant attempted to establish an alibi, testifying that he was at his home that evening from 4:30 until 9 o ’clock.

Witness Shline, a tailor, testified that he was at defendant’s home that evening to see about making a collection for clothing he had sold, remaining there nearly half an hour and leaving about seven o’clock, and that defendant was there at that time.

Witness Adolphus Ewing testified that he went to defendant’s home about fifteen minutes before seven o’clock that evening, and remained until about nine o’clock, and that defendant was at home during that time.

Defendant undertook to establish a good reputation by witness W. E. Connor, who, however, was unable to qualify as a character witness.

The State in rebuttal introduced five witnesses, including three police officers and the chief of detectives of Kansas City, who testified that defendant’s reputation for general morality in the neighborhood in which he lived was bad.

OPINION.

I. The information, which was filed December 3, • 1912, reads in part as follows: “Now comes Mord M. Bogie, assistant prosecuting attorney ^or ^16 ^a^e Missouri, in and for the body of the county of Jackson, and upon his oath informs the court,” etc.

The information is signed and sworn to by said assistant prosecuting attorney. Appellant contends that the information is insufficient because it did'not charge that the prosecuting attorney informed the.court upon his “official oath” or “oath of office,” and furthermore that it does not affirmatively appear that the assistant prosecuting attorney had power to sign the information.

As to the first contention, it is sufficient to say that the phrase “upon his oath,” as used in the information, is synonymous with “upon his official oath” or “oath of office.” [State v. Atchley, 186 Mo. l. c. 197.] The statute defining the duties of assistant prosecuting attorneys 0£ jac]jSOn county, applicable at the time this information was filed, is section 10738b, Laws of 1911, page 393. In that section it is provided that the “prosecuting attorney and his assistants shall institute ... all criminal actions in all courts of said county,” and “said assistants shall assist the prosecuting attorney generally in the conduct of his office, under his direction and subject to his. control,” etc. The language of the statute is sufficiently broad to invest the assistant prosecuting attorney with power to sign the information as such assistant prosecuting attorney. [State v. Speritus, 191 Mo. 24.]

II. The appellant next contends that the court erred in excluding defendant’s offer of certain testimony. The offer and the court’s ruling thereon are as follows “Mr. Bowron (out of the presence and hearing of the jury): The defendant offers to introduce Charles P. Wight, captain and manager of the Pinkerton Detective Agency, in Kansas City, Missouri, to impeach the credibility of the prosecuting witness, Mrs. G. W. Eogers, for the purpose of showing a collusion between G. W. Eogers and his wife, the prosecuting witness in this case, making a tool of this defendant for the purpose of said G. W. Eogers making a record for himself as a detective and officer in order to get back on •the Pinkerton force of detectives of Kansas City, Missouri, the position that he once held, and was discharged from on account of bad conduct on his own part; the defendant’s contention being that said G. W. Eogers was the instigator of this whole affair, and that. the crime charged — in fact it never was committed, and that this defendant' knew nothing of it, and was not near the place where the crime is alleged to have been committed, and that said Eogers is the one that procured the officers and induced them to go and arrest this defendant several days after the alleged crime was committed.

“The Court (out of the presence and hearing of the jury): The court will permit you to show this contention, if you can. The court will not permit you .to assail the veracity of Mrs. Eogers by showing that her husband was discharged from the employment of the Pinkerton Detective Agency for drunkenness or misconduct. If you. can show that the prosecuting witness, Mrs. Eogers, was in a conspiracy, or was induced by her husband or anybody else to swear falsely against this defendant, the court will give you every opportunity and every agency in the hands of the court or at its disposal to ferret out this conspiracy, but the court will not permit you to show that the husband of the witness was discharged from a position as affecting the credibility of the witness.

" Mr. Gray: Exception. ’ ’

It becomes apparent from a reading of the above that the court committed no error in its ruling. The fact that the husband of the prosecuting witness was or was not discharged from the employment of the detective agency was not competent evidence for any purpose. As to the other portions of the offer, the court ruled in defendant’s favor. Neither was' it error for the court to sustain the State’s objection to questions aslced the prosecuting witness as to whether her husband had been trying to secure employment from the city, or when he was last employed by any one, or-how long he had been working for himself, as the facts which these questions sought to elicit were not material to the issues. On cross-examination, the prosecuting witness testified that she had owned the stolen jewelry for about seven years. Appellant’s counsel then asked her where she got the jewelry. To this question the State interposed an objection which the court sustained, and appellant saved an exception. "While wide latitude is generally allowed in cross-examination, yet we are unable to see wherein appellant was injured by the court’s ruling, and the same did not therefore constitute reversible error.

III. Appellant complains of certain" questions asked by the prosecuting attorney of some of the witnesses. The court sustained defendant’s objection to eaW of said questions, and granted each of his requests with reference to striking out certain answers made by the witnesses. Defendant’s counsel made no further request or objection concerning’ the same, and since the court fully sustained his objections and granted his requests, there is no matter of exception in the record upon which appellant can build a question for review here.

TV. It is next insisted that the verdict is against the weight of the evidence, and that defendant’s evidence proved a “complete” alibi. Defendant’s brother and sister did testify that he was at his home the entire time between six and seven o’clock the evening of the robbery. Two other witnesses testified for defendant as to his whereabouts that evening, but their testimony, carefully read, discloses that what they say might be true,, and still not establish an alibi for defendant. One of' these witnesses, the tailor, is very indefinite and uncertain as to the time he saw defendant that evening. He says he left defendant’s house about seven o’clock, and that he was there “about nearly half an hour,” and that he didn’t pay any attention to the time. The other disinterested witness testified that it was ‘ ‘ about a quarter to seven, I think, or something like that,” when he first saw defendant at his home that evening. The evidence on the part of the State fixed the occurrence of the robbery at between 6:15 and 6:25 p. m. It is.not shown how far defendant lived from the'scene of the robbery, but a man could have traveled several blocks between that time and the time when the two-disinterested witnesses claim to have seen defendant at his home.

The two witnesses for the State were positive in their testimony that defendant was the person who-committed the robbery. There was certainly substantial evidence to support the verdict, and where this is-true, the judgment on appeal will not be set aside. [State v. Sassaman, 214 Mo. 695; State v. Sharp, 233 Mo. 269; State v. Reed, 237 Mo. 224; State v. Fields, 234 Mo. 615.]

Appellant makes no complaint as to the instructions given, but we have carefully examined same, and find that they fully and fairly declare the law applicable to the case and are free from error.

The judgment is affirmed. Roy, G., concurs.

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

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


text:
    JAMES E. PERKINSON v. GERTRUDE WEBER et al., Appellants.
    Division Two,
    June 17, 1913.
    1. SPECIAL TAX BILL: Park Within Benefit District: Appropriation in Excess of Tax Assessed Against City. Where the charter provides that three-fourths of the costs of a street improvement shall be levied upon the area of land included in a benefit district formed by drawing a line midway between the street to be improved and the next parallel or converging street on each side, and the city appropriates $6200 to pay its share of the area posts which could have been assessed against a part of a public park included within the benefit district had' it been private property, and which, being public property, was not subject to taxation, private owners of property within the district cannot complain that only $5X80.92 of the money appropriated by the city was applied towards paying the costs of the street improvement. The city could not anticipate just what would be the costs of the improvements, and because out of abundant caution it appropriated more than was needed to pay its share is no reason for applying the excess to lessening the share the other property-owners should pay.
    2. -: Benefit District: Inclusion of Public Street. Whether or not the city, in prescribing the boundaries of the benefit district, under a charter which requires three-fourths of the costs of the improvement to be assessed according to the area-rule against the lands within the district, wrongfully ignored a pubic street and thereby increased the taxes of the private owners whose lands abutted on said street, depends on whether or not it was a public street, either by dedication, prescription or condemnation; and in this case the evidence is reviewed and held not to show a public street.
    3. -¡ — : -: -: Condemnation: Prior to Improvement: Evidence: Estoppel. A final decree in condemnation of a street relates back only to the institution of the' suit; and if at that time the benefit district for the improvement of another street had been so formed as to include the area afterwards condemned for the street as a part of defendants’ land, and said other street had been fully improved and the tax bills had been issued and become a lien on defendants' lands, it will not be held that the city wrongfully counted the area which afterwards became a part of the street so condemned as a part of defendants’ land. And the fact that, before defendants were sued on the tax bills, they made demand for damages for tbe land taken for tbe street in tbe condemnation proceeding, is a very significant fact in determining whether or not it was an existing street when tbe benefit district was established, and almost amounts to an estoppel to their claim that they bad previously dedicated or intended to dedicate tbe strip for a street.
    4. -: Decree: Affirmative Defenses. When tbe trial court held tbe special tax bills valid, it was not required in its decree to directly dispose of that part of defendants’ answer which demands a cancellation of tbe tax bills as casting a cloud on their title.
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    Affirmed.

      H. A. Loevy for appellants.
    (1) The strip of ground which was known, first as Fifteenth, then as Twenty-first street, and was in fact a continuation or prolongation of Twenty-first street, was a public and legal street. (2) The tax bills are void because this street was ignored in making out of the bills sued on. (3) The tax bills are excessive and consequently void because the property-owners are required to pay $1000 which the city of St. Louis should pay. (4) The decree is not responsive to all the issues in this: there is no adjudication as to' issues raised by the new matter pleaded in the answer.

      Kinealy & Kinealy for respondent.
    (1) Appellants did not show that Twenty-first street was a public street by dedication through their property. To do that they would have had to prove an intention on their part to dedicate the land to public use and an acceptance by the city. Bauman v. Boeckler, 119 Mo. 200; Collier Est. v. Western P. & S. Co., 180 Mo. 388; Benton v. St. Louis, 217 Mo. 702. (2) Nor did they show it was a public street by prescription. For that purpose it would have been necessary to prove open, continuous and adverse use-by the public for the prescription period. Field v. Mark, 125 Mo. 516; Chillicothe v. Bryan, 103 Mo. App. 415; Collier Est. v. Western P. & S. Co., 180 Mo.. 388. (3) Twenty-first street was not a public-street through appellants’ property until made so by the-judgment in the condemnation proceedings instituted, by the city. Ross v. Cates, 183 Mo. 348; Kansas City v. Railroad, 189 Mo. 259; Sylvester v. St. Louis, 164 Mo. 601. (4) The city was properly chargéd only with the amount due from it on account of the ownership of Hyde Park based on the contract price for doing the work. Charter, art. 6, sees. 14, 27 and 28; Id., art. 5, secs. 11 and 12; Id., art. 4, sec. 21. An appropriation is merely setting aside a fund to be drawn upon. Champagne v. U. S., 26 Ct. Cl. 316. (5) The judgment disposed of all the issues in the case.
   BROWN, P. J.

Action to collect special tax bills against defendant’s real estate in the city of St. Louis. From a judgment for plaintiff in the circuit court of that city, defendants appeal.

Plaintiff’s tax bills'were issued against some unplatted land between Twentieth street and Florissant avenue in St. Louis City, to cover part of the expense of improving Twentieth street. Said Twentieth street runs north and south through said city.

Under section 14, article 6, of the charter of St. Louis, street improvements may be paid for by special, assessments against the property fronting or adjoining the improvements; one-fourth of such special taxes being levied upon the frontage of the street to be improved, and the remaining three-fourths upon the area of land included in a benefit district formed by drawing a line midway between the street to be improved and the next parallel or converging street on each side of the street to be improved.

The benefit district formed for the improvement of Twentieth street included a strip of Hyde Park, which, as its name indicates, is a public park of the city not subject to taxation; so that the legislative department of the city in the ordinance which provided for the improvement of said Twentieth street, appropriated $6200 out of the city treasury to cover that part of the expense of the proposed improvement which it was estimated would have been levied upon Hyde Park if such park had been private property.

. Defendants in their answer to plaintiff’s petition allege that the tax bills sued on are excessive and invalid for the following reasons:

(1) That only $5180.92 of the money appropriated from the city treasury was applied towards paying for the improvement of said Twentieth street, and the remainder of the cost of said improvement was wrongfully taxed against the property of defendants and other persons owning lands in the benefit district.

(2) That in creating and prescribing the boundaries of the benefit district for improving Twentieth street, the city, through its officers, wrongfully ignored a public street known as Twenty-first street lying between Twentieth street and Florissant avenue, and included too much of defendants’ lands in the benefit district, thereby unlawfully increasing the size of the tax bills assessed against defendants’ property.

Defendants in their said answer demand the cancellation of the tax bills on the ground that they are invalid and a cloud upon the title of defendants. .

For the reason that defendants’ answer and prayer are for affirmative equitable relief, the circuit court tried the case as an action in equity.

The existence or non-existence of Twenty-first street as. a public thoroughfare of St. Louis at the time the benefit district was formed for the purpose of improving Twentieth street is' the chief .bone of contention between plaintiff and defendants. For the purpose of making the opinion as brief as propriety will admit, we will consider the evidence regarding Twenty-first street in our opinion.

I. The insistence of defendants that the officers of St. Louis City committed error in failing to apply all of the $6200 appropriation towards . . ,. jv^ ,A , , „ improving Twentieth street before prorating- and assessing any part of the expense of improving said street against the property of defendants cannot be sustained.

By section 28,' article 6, of the charter of St. Louis when any ordinance is enacted by the municipal assembly of that city calling for work to be paid for by the city, such ordinance must appropriate a specific sum of money out of the city treasury to cover the liability incurred by the city in carrying out the provisions of such ordinance. Subdivision 4, section 14, of article 6 of said charter further provides that when any lands are located - in a benefit district which are not liable to special assessments, the city must pay whatever special assessments would have been assessed against said non-assessable lands if the same had been private property.

The non-taxable lands in the benefit district established to improve Twentieth street are a part of Hyde Park, and the appropriation before referred to was made to cover the city’s share of the expense of improving said street in front of the park.

■The appropriation mentioned turned out to be more than a thousand dollars larger than was necessary to cover the city’s part of improving Twentieth street, but that did not harm defendants in any way.

Section 27, article 6, of the charter of St. Louis provides that all contracts for public improvements shall be advertised and let to the lowest responsible bidder, so that it is. perfectly apparent that the legislative department of said city conld not foresee what the bids of the contractors would be, nor in any way ascertain the precise cost of improving Twentieth street.

Because the municipal assembly acted with abundant caution in appropriating a larger sum than was necessary would constitute no warrant for spending the surplus of that appropriation in paying special taxes on property of defendants or other private persons.

All of the costs of improving Twentieth street which were legally chargeable against the city of St. Louis were paid out of the appropriation, and the contention of defendants that the remainder of said appropriation should have been applied on said improvements must be disallowed.

II. The contention of defendants that Twenty-first street was ignored by the officers of St. Louis City in establishing the boundaries of the benefit district for improving Twentieth street, in which benefit district part of defendant’s lands were placed, calls for a consideration of the evidence tending to show the establishment of Twenty-first street.

It is not denied that Twenty-first street has been duly established as a public thoroughfare from Salisbury street up to the south boundary of defendants’ land for a long time — perhaps as long as twenty-five years. The place where said Twenty-first street would pass through the lands of defendants, if it had continued in a straight northwardly course parallel with Twentieth street, had been a stone quarry. It had not for more than twenty years been fenced or otherwise used by defendants; in fact, it was merely a large excavation between forty and fifty feet deep through which pedestrians could and did pass at pleasure, but through which vehicles could not pass on account of the unevenness of the surface.

The evidence shows that defendants permitted the •city, and perhaps others, to dump dirt into this abandoned stone quarry until it was filled up about half way across defendants’ lands. After that, and during about the seven or eight years next before the improvement of Twentieth street was begun, wagons going north on Twenty-first street could pass over that part of the aforesaid excavation which had been filled by the dumping of dirt therein, and then pass westward over defendants’ land lying between the excavation and Florissant avenue. The great preponderance of evidence is that the quarry or excavation had not been filled up sufficiently to permit wagons to pass •entirely across that part of defendants’ land, which they now contend was a street, prior to the improvement of Twentieth street. Defendants’ lands lying in the excavation, as well as their lands lying between the excavation and Florissant avenue, were unfenced, and the public seems to have driven over such part thereof as suited its convenience during a period of .about seven or eight years prior to the improvement of Twentieth street.

There was no legal dedication or conveyance to •the city of that" part of defendants land which they now claim was a part of Twenty-first street prior to the issuance of plaintiff’s tax bills for improving Twentieth street.

One of the defendants testified that he put up a ¡sign in the quarry notifying the public that newspapers and ashes must not be dumped there; also that he “let” the city dump dirt there.

On April 2, 1906, the municipal assembly of St. ;Louis enacted another ordinance providing for the .opening of Twenty-first street, and ordered the city .counselor to institute condemnation proceedings to .open said street through the lands of defendants. For some reason not shown the suit to condemn the right of way for said Twenty-first street was not instituted until December 11, 1906. A hearing was given before commissioners to ascertain what damages should be awarded to land-owners for'opening said Twenty-first street, at which the defendants appeared and asserted that they would be damaged by the opening or establishment of such street through their property. They were allowed $81 as net damages over and above the benefits they would receive through the opening of Twenty-first street, and about the month of October, 1907, they accepted the $81 damages which had been awarded to them for the.taking of or injury to their property as aforesaid.

One of the defendants testified at the trial of this case as follows:

“Q. When this [Twenty-first street] was condemned as a street did yon appear before the com: missioners and testify as to the damages you were to get? A. Yes, sir.
“Q. And you got damages on Twenty-first street? A. Yes, sir, we got damages.
“Q. Who appeared for you before the commissioners ? A. I and my brother. . . .
“Q. You didn’t claim then that it was a public street? A. No.
“Q. Do you-claim that now? A. I don’t claim it as a public street. I say it was used by the public.”

Defendants introduced receipts for State, city and school taxes paid by them during the years 1899 to 1907 showing that they had paid taxes on land fronting on Twenty-first street or “pro Twenty-first street” {meaning proposed Twenty-first street). These receipts are not copied into the record, and it is impossible to tell which of them refer to it as a completed street.

Defendants also introduced a large number of deeds which, contain recitals indicating that there was a Twenty-first street through their lands when such deeds were executed. The names of the grantors and grantees in those deeds are not recited in the abstract of record before us, .so it is difficult to say what probative force those deeds possess. If they were made by or to the city, or even by or to the defendants, they might throw some light on the issues, but with no showing as to who made or received such deeds they are of little or no value as evidence in this case. There were also several plats introduced in evidence which are not reproduced in the abstract, and as this is an equity case (made so by the answer of defendants) we would probably be justified in dismissing the appeal because all the evidence is not brought here by appellants. [Vandeventer v. Goss, 190 Mo. 239.]* However, as a matter of grace, rather than proper legal procedure, we have read and considered all the evidence before us and made a diligent effort to correctly weigh the same.

Defendants’ resourceful counsel has filed a scholarly brief, citing some thirty cases to sustain his assertion that on the facts we have recited, Twenty-first street had become a public street, (1) by dedication, (2) by prescription, and (3) by condemnation, before Twentieth street was improved and plaintiff’s tax bills issued.

The defendants’ brief is all right, but, unfortunately for him, his evidence does not sustain the legal propositions upon which he relies.

The demand made by defendants for damages growing out of the condemnation of the right of way for Twenty-first street through their land is & very significant fact, and is so wholly inconsistent with their theories as to amount almost to a complete estoppel against their claim that they had previously dedicated, or even intended to dedicate, Twenty-first street to the city, or that the city had acquired title by prescription to that part of said street which was afterwards condemned through their land. We do not deem it worth while to comment at length upon the evidence, a synopsis of which is herein set out, except to say that it preponderates with the contention of plaintiff that defendants retained the title to the strip of land through their property until such title was divested by the condemnation proceedings.

The matter of improving Twentieth street, like the condemnation of Twenty-first street, seems to have proceeded very slowly. The evidence discloses that the plat fixing the boundaries of the benefit district for the improvement of Twentieth street was approved by the municipal assembly of St. Louis on April 1, 1902, while the ordinance directing the letting of the contract for that improvement was not enacted until November 21, 1905. The date of letting the contract is not proven. The contract must have followed within a reasonable time after the enactment of the last-mentioned ordinance, as the tax bills evidencing the completion of the work were issued to plaintiff on November 8,1906. Defendants complain bitterly because the city did not bring and prosecute to final judgment the proceeding to open Twenty-first street before it formed the benefit district for improving Twentieth street and issued the tax bills.. To have done so would have resulted greatly to the advantage of defendants by reducing the area of their lands which could be taxed to improve said Twentieth street.

We are unable to find any evidence in this record indicating that delay in condemning and opening Twenty-first street was a matter of caprice or fraud on the part of the officers of St. Louis. N.o such charge is contained in defendant’s answer.

It is a well-known fact that- there is always a greater demand for public improvements in cities and towns than there are public funds to pay for same. The city cannot afford to open more streets than it can provide money to keep in repair.

The condemnation proceedings to open Twenty-first street were not begun until December 11,1906, and the final decree in that case only relates back to the institution of the suit. [Ross v. Gates, 183 Mo. 339, 1. c. 348.] At that time Twentieth street had been fully improved and the tax bills which form the basis' of plaintiff’s judgment had been issued and become a special lien against the lands of defendants. [St. Louis v. Clemens, 36 Mo. 467, 1. c. 473; Anderson v. Holland, 40 Mo. 600; Everett v. Marston, 186 Mo. 587.] The opening up. of an additional street after that date could not destroy any part of the lien which had already attached to defendant’s lands. Therefore, their second contention must be disallowed.

III. Defendants also attack the form of the decree in this case, because it awards the plaintiff a lien on their lands and does not directly dispose of that part of defendants’ answer which demands a , cancellation of the tax bills casting a cloud on their title. The finding and decree of the trial court necessarily implies that all the defenses interposed to its rendition were disallowed.

For the trial court to have gone through the useless formality of discussing in its- decree the defenses pleaded in the case would be as much a waste of time and spacé as for this court to extend the present opinion to one hundred pages in an effort to convince defendants’ attorneys that the propositions they urge in this case are unsound.

There is no reversible error in the record, and the judgment of the. trial court is affirmed.

Walker and Faris, JJ., concur. .