text:
    DAVIS v. MONTGOMERY et al., Appellants.
    Division One,
    June 29, 1907.
    1. LOST RECORD: Parol Evidence: Order of Publication: Tax Sale. The contents of a lost or destroyed record may be established by parol evidence, in the same manner that the contents of other lost or destroyed documents are shown. Where the record of the order of publication and the certified copy delivered to the publisher were both lost or destroyed, it was proper for the court to admit in evidence the files of the newspaper containing the publication of the lost or destroyed order, where the editor swore the files contained a true and correct copy of the order delivered to him by the clerk for publication.
    2. TAX SALE: Petition: Unknown Heirs: No Description of Interest. A failure to describe in the petition in the tax suit the interest of the unknown heirs, and how they derived title, is fatal to that suit, and the judgment rendered thereon is a nullity. A simple allegation that “Robert C. Hayes at the time of his death was the owner of the above-described real estate and his heirs are now the owners thereof and they are unknown to plaintiff, for which reason their names cannot be inserted in this publication,” is not sufficient, and does not bring them into court.
    3. -: Order of Publication: Unknown Heirs. An order of publication in the tax suit which fails to state that there “are persons interested in the. subject-matter of the petition whose names he cannot insert therein because they are unknown to him,” as the statute requires, is faulty.
    4. -: Void Judgment: Collateral Attack. A sale made under an execution based upon a void judgment may be attacked in a collateral proceeding, for instance, in a suit to quiet title.
    Appeal from New Madrid Circuit Court. — Row. Henry G. Riley, Judge.
    Affirmed.

      Lawrence Fisher for appellants; C. H. Shubert of counsel.
    (1) The circuit court erred in permitting respondent, over the objection of appellants, to introduce the files of the newspaper, the Weekly Record, in this collateral suit, to falsify and impeach the record of the tax judgment recital, “Defendant having been duly notified by publication of the nature and institution of this suit.” 1 Freeman on Judgments, see. 131, p. 236; Rumfelt v. O’Brien, 57 Mo. 569; Dunham v. Wilfong, 69 Mo. 355; Sutton v. Cole, 155 Mo. 215; Atwood v. Atwood, 55 Mo. App. 370; Long v. Long, 141 Mo. 371; R. S. 1899, secs. 580, 581 and 3150; Bemecker v. Miller, 44 Mo. 102; Latrielle v. Dorleque, 35 Mo. 233; Kane v. McCown, 35 Mo. 181; Freeman v. Thompson, 53 Mo. 183 ; Foster v. Givens, 67 Fed. 684; 29 Am. and Eng. Ency. Law, 194; 27 Am. and Eng. Ency. Law, 826, 848; Cruzen v. Stephens, 123 Mo. 344. (2) Upon the face of the whole record in the case at bar as now before this court, the circuit court erred in finding for respondent. Same authorities as above, and: Jennings v. Dunham, 60 Mo. App. 255; Scott v. Nevada, 56 Mo. App. 189; Harper v. Morse, 114 Mo. 317; Bank v. Donnell, 195 Mo. 572; R. S. 1899, sec. 9303; State ex rel. v. Sack, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169. (3) The words in the tax petition, “The unknown heirs of Robert C. Hayes,” was a sufficient designation of all persons coming within that description or designation. Cruzen v. Stephens, 123 Mo. 344; Wall v. Land & Lumber Co., ' 175 Mo. 412. (4) The present action is clearly a collateral action, and is in no sense a direct attack on the tax judgment. 27 Am. and Eng. Ency. Law, 848. (5) If the judgment is not void as appears from the record, it is not subject to collateral attack. Meyers v. McRay, 114 Mo. 382.

      J. it. Brewer for respondent.
    (1) The contents of a lost record can be shown by parol evidence. Perry v. Walser, Admr., 57 Mo. 169; Foulk v. Colburn, 48 Mo. 225. (2) The allegations in the petition as to the unknown parties were insufficient to give the court jurisdiction in the case of State ex rel. Geo. W. Steele v. Unknown Heirs of Robert C. Hayes, for there was no attempt to describe in the petition the interest of the unknown parties further than to say “that Robert C. Hayes died the owner of said land, and his heirs are the owners thereof;” and there was no attempt to say what interest the defendants had, or that plaintiff was unable to state it for the reason that he did not know it. R. S. 1899, sec. 580; Land & Mining Co. v. Land & Cattle Co., 187 Mo. 420. (3) The order of publication is insufficient. Authorities, supra. (4) If the judgment is void, the sale can be attacked collaterally. Williams v. Monroe, 125' Mo-. 585. (5) If the judgment is void, the purchaser at the tax sale acquired no title to the land in question. Harness v. Craven, 126 Mo. 233.
   WOODSON, J.

The plaintiff instituted this suit in the circuit court of New Madrid county. The petition states that plaintiff was the owner of certain lands described in the petition, and that defendants claimed some interest therein under and by virtue of a certain tax deed, which plaintiff alleged was void for want of proper service on the defendants, and prayed that the title and interest of all parties in and to said land be ascertained and determined by the court, as provided for by section 650, Revised Statutes 1899..

The answer was a general denial and a plea of the thirty-year Statute of Limitations.

The replication was a general denial of the new matter set up in the answer.

At the trial it was admitted that New Madrid •county was the common source of title. On April 3, 1861, said county, by patent duly executed, conveyed said land to Robert C. Hayes, who departed this life prior to the year 1889. All of Hayes’s heirs, by quitclaim deeds, conveyed all their rights, title and interests in and to said land to the plaintiff. This was all the evidence introduced by plaintiff, in chief.

Defendants introduced in evidence a sheriff’s deed, dated March 19', 1891, purporting to convey all the rights, title and interests of the unknown heirs of said Robert C. Hayes in and to the lands in controversy to Francis J. Peter. The defendants, on December 18, 1899, through mesne conveyances, acquired the title and interests of said Francis J. Peter.

W. O. Pool testified that he knew the defendants, and that they had been in possession of said land one whole year next before the filing of this suit, and that they had built a tram road' over it and had taken timber off of same; that the road was constructed three years before the suit was instituted, and they had used it continuously ever since.

This was all of defendants’ evidence.

In rebuttal, tbe plaintiff introduced tbe following-evidence :

1st. Petition and affidavit in case of State of Missouri at the relation of Geo. W. Steel, collector of the revenue of New Madrid County v. Unknown Heirs of Robert C. Hayes, for delinquent taxes on the land in controversy, filed June 17, 1890, upon which the sheriff’s deed offered by appellants is based.

The allegations of petition and affidavit relative to the interests of the unknown parties, how derived, etc., which was assailed by plaintiff as being insufficient under section 580, Revised Statutes 1899, is as follows, and will be sufficient to get an understanding of the points in controversy:

“That one Robert C. Hayes was the owner at the time of his death of the above-described premises- and real estate and his heirs are now the owners thereof and they are unknown to the plaintiff, for which reason their names cannot be inserted in this petition.”

The rest of the petition was in the usual form and was not questioned by either side. The part given above is all that is in dispute.

2d. The judgment based on said petition, recorded in tax judgment records of New Madrid county, in words and figures as follows (omitting certain other tracts not in controversy):

“New Madrid County Circuit Court, September •Term, 1906. Case No. 2049.

“Civil Action to Enforce Lien for Taxes. Pinal Judgment.

“The State of Missouri, at the Relation and to the Use of George W. Steel, Collector of the Revenue of New Madrid County, in the State of Missouri, Plaintiff, vs. Unknown Heirs of Robert C. Hayes, Defendant.

“Now at this day comes the relator by his attorney, defendant having been duly notified by publication of the nature and institution of this suit and failing to answer plaintiff’s petition:

“Wherefore, it is ordered by the court that the petition of the plaintiff against defendant be taken as confessed, and all and singular the matters contained in the petition are by the relator submitted to the court and the court after hearing the testimony doth find that the defendant is the owner of the real estate described in the petition, and the court doth further find that there are due and unpaid delinquent taxes, including interest thereon, on each tract of the following described real estate situated in New Madrid county, Missouri, for the years and amounts set opposite each tract, viz.: . . .

“Number 4, parts of sections S. \ Sw. J, Sec. 34, Twp. 24, R. 15, years for which tax due 1877 to 1888, both inclusive; tax, $9.31; interest, $7.16; total, $16.47.

“Wherefore it is ordered and adjudged and decreed by the court, that the plaintiff have and recover from this defendant special judgment for the said sum of fifty-seven dollars and fifty-six cents, so found due on the land as aforesaid with costs of suit and that this judgment shall draw ten per cent interest from rendition thereof, and further that there be levied and collected as other costs in this case four per cent commission for collection for Henry C. Riley, plaintiff’s attorney, and attorney’s fee of eight per cent of the judgment collected and that the. aforesaid judgment and costs are a special lien and judgment against said tracts of land, respectively, as hereinbefore described, and that the plaintiff have an execution therefor.”

3d. Order of filing proof of publication in case of Collector vs. Unknown Heirs of Robert C. Hayes.

Objected to by counsel for defendants for the reason it does not disclose in what newspaper it was ordered published.

Objection overruled. Exception saved.

Which order is as follows (caption omitted):

“Now comes plaintiff and files proof of publication of notice to defendants of the institution and nature of this suit, which order was dated Sept. —, 1890.”

4th. It was admitted that John A. Mott was circuit clerk of New Madrid county, from 1889 until 1900, and as such clerk he kept a book similar to one shown in court, which book had on the back of it “Orders of Publication.”-

Geo. M. Summers testified:

“I am deputy circuit clerk of this county. I have made a diligent search over the records, of New Madrid County Circuit Court to find an order of publication made in the case of Geo. W. Steel, collector of revenue, vs. the Unknown Heirs of Robert C. Hayes, but do not find it. I found a book similar to the one handed me and marked ‘Orders of Publication’ on the back. I do not find any other besides it. In the book I have, the first order of publication is dated January 30, 1893. I don’t know whether or not it contains any order of publication in tax suits for the year 1890'. I looked through, it, but did not find the one I was looking for. I don’t remember seeing any in it made in 1890.”

J. W. Jackson testified:

“lam circuit clerk of New Madrid county. I cannot find any book in my office containing any other publication prior to the year of 1890. I have made dili-' gent search.”

E. A. Wright testified:

“I was publishing the Weekly Record, in New Madrid county, Missouri, in the year 1890. I don’t think the Chronicle was running that year. I published the order of publication in the tax suits for the September term of the circuit court for that year. I got them from Mr. Mott, then circuit clerk.

“Q. State whether or not you published an order of publication in the case of Geo. W. Steel, collector, vs. the Unknown Heirs of Robert C. Hayes, a certified copy of which was furnished you by the clerk of the circuit court of New Madrid county, Missouri.

“Objected to by counsel for defendants, because there is nothing on record to show that the publication was ever ordered published in his paper. Admitted by the court subject to the objections. To which ruling of the court, defendant then and there at the time duly excepted.

“A. The copy was furnished, and I published the order beginning with the issue of August 2,1890. The copy furnished me was burned up in 1899: I have searched for it and can’t find it. I have in my possession a copy of my paper containing the order of publication in the case of Geo. "W. Steel, Collector, vs. the Unknown Heirs of Robert C. Hayes.”

“Q. (Witness is handed a paper containing order of publication in said tax suit). State if that is the order you published?

“Objected to by counsel for defendant, for the reason that there is nothing on record to show that the publication was ever ordered to be published in his paper. Which objection was by the court overruled. To which ruling of the court defendant by counsel at the time excepted.

“A. Yes, sir.

“ Q. State if you swore to that copy and delivered it to the clerk of the circuit court of New Madrid county for the September term, 1890?

“Objected to by defendants because there is nothing shown to prove that the order of publication is lost. Which objection was by the court overruled. To which ruling of the court defendant by counsel at the time duly excepted.

“A. From my memory, I believe I did. I got pay for it, I think.

“Q. State if that is a copy of the order delivered to you in the case of State ex rel. Geo. W. Steel, Collector, v. Unknown Heirs of Robert C. Hayes, for publication.

“Objected to by counsel for defendants, for the reason there is nothing shown to prove that the original order of publication is lost. Objection overruled. To which ruling defendant at the time excepted.

“A. Yes, sir. That was the only notice published in my paper in this case for the September term, 1890.

‘ ‘ Cross-examined:

“I don’t know whether or not the Chronicle was running here at the time, but believe it was. I believe all the orders of publications in tax suits were delivered to me that year, of 1890.”

Plaintiff offered in evidence “that copy,” the material part of which is as follows:

“The State of Missouri, at the relation and to the use of George W. Steel, Collector of the Revenue of New Madrid county, Missouri, v. Unknown Heirs of Robert C. Hayes.

“In the Circuit Court of New Madrid County, to September Term, 1890.

“Now at this day comes the plaintiff in the above-entitled cause, by Henry C. Riley, before the undersigned clerk of the circuit court of New Madrid county, in vacation, and filed his petition and affidavit, stating among other things, that the above-named defendants, the heirs of Robert C. Hayes, are unknown to him.”

(The remainder of the document is in usual form of Order of Publication, and is not necessary to the determination of the issues.)

To which the defendants by counsel objected, for the reason that there is nothing of record to show it was ordered published in that paper, and for the reason that the tax judgment recitals cannot be set at naught by extrinsic evidence.' Which objections were by the court overruled. To which ruling of the court defendants by counsel then and there at the time duly excepted.

This was all the evidence introduced. No declarations of law were asked or given. The court found the issues for the plaintiff, and rendered judgment in his favor, declaring the title to the land to be in him, and forever barring defendants and their heirs and assigns from asserting or claiming any interest or title in or to the same. In due time defendants filed motion for a new trial, which was by the court overruled, to which action of the court defendants duly excepted, and in due time appealed the cause to this court.

I. There are but two questions presented by the •record in this court for consideration. The first is, can the contents of a lost or destroyed record be shown by parol evidence? and, second, were the allegations of the petition and the order of publication sufficient to give the circuit court jurisdiction over the subject-matter in the case of Steel, Collector, vs. the Unknown Heirs of Robert C. Hayes?

The defendants contend that the action of the court in permitting the introduction of parol evidence to show the contents of the order of publication in that case was erroneous. The evidence of the circuit clerk and that of his deputy showed that they made diligent search in their office for the record of that order and that it could not be found; and: the evidence of Mr. Wright, the editor of the Weekly Record, showed that the order of publication was delivered to him for publication, and that it was duly published in his paper, and that it was an exact copy of the order admitted in evidence, and that the certified copy delivered to him for publication had been destroyed by fire in the year of 1899.

The record clearly shows that said order of publication had been made and published, and had either been lost or destroyed prior to the date of the trial of this suit.

The rule of law in this State is well settled, that the contents of a lost or destroyed record may be established by parol evidence in the same manner as the contents of other lost or destroyed documents are shown. [Parry v. Walser, 57 Mo. 169; Foulk v. Colburn, 48 Mo. 225; Land & Mining Co. v. Land & Cattle Co., 187 Mo. 420.]

The recital in the judgment rendered in that ease to the effect that the defendants had been duly notified by publication of the institution and the nature of that suit did not prevent plaintiff in this suit from showing by parol evidence that the order of publication did not comply with the provisions of section 580, Revised Statutes 1899, because, as stated by Valliant, J., in speaking for this court, in a well and very carefully considered case: “Appellant contends that the recital in the tax judgment to the effect that the summons was served cannot be overcome by the evidence of those witnesses. If the files in the ease were accessible, the return itself would be the best evidence, and by it the recital in the judgment could be contradicted, but when the files in the case are lost their contents can be proven by the next best evidence.” [Land & Mining Co. v. Land & Cattle Co., 187 Mo. 1. c. 433.]

In the case at bar, the record of the order of publication and the certified copy which was delivered to the publisher were both lost or destroyed. Under those circumstances it was proper for the court to admit in evidence the files of the paper containing the publication of the lost or destroyed order. The editor swore the files contained a true and correct copy of the order delivered to him by the clerk for publication. This made the files the next best evidence of the publication of the order. [St. Louis Ins. Co. v. Cohen, 9 Mo. 421; Brown v. Railroad, 69 Mo. App. 418; Conn v. McCullough, 14 Mo. App. 584.]

It follows from what has been said, that there was no error in the action of the trial court in admitting parol evidence to prove the contents of the lost or destroyed record of the order of publication, notifying the defendants of the institution of the suit of Steel, Collector, vs. the Unknown Heirs of Robert C. Hayes, deceased.

II. The second question presented by this record is, were the allegations of the petition and the statements in the order of publication in the case of Steel, Collector, vs. the Unknown Heirs of Robert C. Hayes, sufficient to confer jurisdiction of the circuit court over the subject-matter of that suit?

The allegation of the petition is as follows:

“That one Robert C. Hayes was the owner at the time of his death of the above-described premises and real estate and his heirs are now the owners thereof and they are unknown to the plaintiff, for which'reason their names cannot be inserted in this petition.”

The statute which prescribes how service shall be made upon unknown parties to- suits instituted in the circuit courts of this State is as follows:

“If any plaintiff shall allege in his petition, under oath, that there are, or that he verily believes there are persons interested in the subject-matter of the petition, whose names he cannot insert therein because they are unknown to him, and shall describe the interest of such persons, and how derived, so far as his knowledge extends, the court, or the. judge or clerk thereof in vacation, shall make an order as in case of non-residents, reciting moreover all allegations in relation to the interest of snch unknown parties.” [R. S. 1899, sec. 580.]

This section of the statute not only requires the plaintiff to allege in the petition there are others besides those named who are interested in the subject-matter of the suit, but it also expressly commands that a description of their interest in and to the land shall be stated, as well as how they acquired that interest.

By reading the allegations of the petition, it will be seen that it alleges that Robert C. Hayes was the owner of the land at the time of his death, and that his heirs are now the owners thereof, and that they are unknown to him, and for that reason their names cannot be inserted in the petition, but there is no description whatever of the interest of such unknown persons to be found in the petition, as prescribed by the statute. It is perfectly silent upon that question. It is as much the duty of the plaintiff to describe in the petition the interests of such persons and how they acquired that interest as it is his duty to allege they are unknown to him and for that reason their names cannot be inserted therein.

The failure to describe in the petition the interest of those unknown heirs and how they “derived” that interest was fatal to that suit, and the judgment rendered therein was and is a nullity, and the sale under the execution based thereon passed no title to the purchaser, and the interests of said heirs were not divested or disturbed by said sale. [Land & Mining Co. v. Land & Cattle Co., 187 Mo. 1. c. 437.]

The order of publication in that suit was in the language of the petition therein. It was also perfectly silent as to the description of the interest of the unknown heirs of Robert C. Hayes, nor did it contain a statement as to how they “derived” that interest, as required by the statute. The mandate of the statute was imperative and it should have been strictly complied with, and the failure to do so rendered' the service upon those heirs inoperative and void and it did not bring them into court, and the judgment rendered therein against them is void because they were not properly served. [Land & Mining Co. v. Land & Cattle Co., supra; Williams v. Monroe, 125 Mo. 585; Tooker v. Leake, 146 Mo. 419; Harness v. Cravens, 126 Mo. 233.]

The order of publication is also faulty because it fails to state that there “are persons interested in.’the subject-matter of the petition whose names he cannot insert therein because they are unknown to him. ’ ’

EU. Where a sale was made under an execution based upon a void judgment it may be attacked in a collateral proceeding. [Williams v. Monroe, 125 Mo. 585.]

For the reasons herein stated, the judgment of the circuit court is hereby affirmed.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    HUNTER v. WETHINGTON, Appellant.
    Divison One,
    June 29, 1907.
    1. BILL OF EXCEPTIONS: No Objection. Where appellant does not challenge the accuracy of respondent’s additional abstract of the record wherein the whole bill of exceptions is printed, by filing objections thereto, as required by Rule 11, the court will proceed upon the theory that no objection can be made to the accuracy of that abstract.
    2. -: -: Refused Instructions. Notwithstanding appellant’s insistence that his instructions were marked refused, yet if he does not in any way dispute the fact that respondent has correctly printed the full bill of exceptions as the same appears on file, and if that abstract recites that the court gave appellant’s instructions, the court will proceed upon the theory that his instructions were given, and not refused.

      3. EJECTMENT: Tenant not Joined.. Ejectment cannot be maintained against the landlord without joining his tenant as a codefendant. And where the defendant lived near the eighty acres of land and cultivated a field thereon, but' rented the house and garden to another, who occupied the house, and there is no such description of the portions occupied by each as would authorize a ‘ proper judgment against the landlord alone, a judgment for plaintiff for the whole tract cannot stand unless the tenant was joined as a defendant.
    4. -: -: Admitting Possession: Limitations. It is not true that defendant must admit possession or be without standing on his claim of adverse possession. Ejectment is a possessory action, and must be brought against the party in actual possession; and the possession required for the purpose of maintaining the action is a wholly different thing from the possession required by the law to ripen the title by limitations.
    5. -: Adverse Possession: Undisputed Testimony. It does not follow that because two witnesses testified to defendant’s adverse possession for ten years, and their testimony was undisputed, the court should have given judgment for defendant. The credibility of their testimony, although undisputed by other direct testimony, was for the trier of the facts.
    6. -: Good Faith. Besides, the good faith of this adverse occupancy was a question to be considered by the trier of the facts. If defendant was a mere squatter when he entered upon the land, the amount of his improvements, the extent of his possession, and his failure to pay any taxes after he obtained a deed from one who had no title, bear on the question of whether or not he relied upon his alleged color of title as the legal title, and if he did not so rely upon it, plaintiff, who had a complete legal title and paid all the taxes, is entitled to recover, notwithstanding defendant, by himself and through his tenant, occupied a house and cultivated a small field on the tract for more than ten years.
    Appeal from Stoddard Circuit Court. — Hon. James L. Fort, Judge.
    Reversed and remanded.

      G. L. Keaton for appellant.
    (1) The action of ejectment cannot he maintained against defendant alone when he did not reside on the land at the time of bringing the suit when a tenant resided on the land and was not made party defendant. R. S. 1899, secs. 3056 and 3060; Callahan v. Davis, 90 Mo. 83; Sells v. McAnaw, 138 Mo. 274; Shaw v. Tracey, 95 Mo. 532. (2) Defendant has shown a perfect title by adverse possession. Plaster v. G-rabeel, 160 Mo. .675; Davis v. Wood, 161 Mo. 33; Kirton v. Bull, 168 Mo. 633; Franklin v. Cunningham, 187 Mo. 196; Sell v. McAnaw, 138 Mo. 274; Hunter v. Pinnell, 193 Mo. 146. (3) Defendant’s deed is color of title. “Any deed purporting on its face to convey title, no matter on what it may be founded, is color of title.” Hamilton v. Boggess, 63 Mo. 244; Hickman v. Link, 97 Mo. 488; Shaffer v. Detie, 191 Mo. 393. (4) Possession under color of title of a part of the land extends to all the land described in the instrument creating color of title, and when it continues for more than ten years it vests the absolute, perfect title in the possessor to the whole tract described therein. R. S. 1899, sec. 4266; Harbison v. School Dist., 89 Mo. 184; Stevens v. Martin, 168 Mo. 410. (5) It was not necessary for defendant’s deed to be recorded to set the Statute of Limitation in motion and bar plaintiff. Watts v. Donnell, 80 Mo. 197; Davis v. Brisco, 81 Mo. 37. (6) The alterations and changes in a deed or instrument are presumed to have been made contemporaneous with the execution of defendant’s deed, which is proven beyond controversy to have been made before the acknowledgment and delivery of the deed. So, there is no merit, whatever in plaintiff’s insinuations and attempted proof to the contrary. Matthew v. Coalter, 9 Mo. 696; Paramour v. Lindsey, 63 Mo. 63; Holton v. Kent, 81 Mo. 665; Stillwell v. Patton, 108 Mo. 360.

      Mosley $ Wammack, for respondent.
    (1) Those claiming adversely under color of title must enter and occupy the land in good faith, claiming the whole tract, relying on the color of title as being the legal one. And whether such adverse claimant relies in good faith on his color of title as being the legal one is a question of fact for the jury. Gaines v. Sanders, 87 Mo. 557; Perkins L. & L. Co. v. Irving, 98 S. W. 580. The question of good faith is a fact to be determined by the evidence. (2) The trial court heard the witnesses, observed their demeanor on the stand, and correctly decided that defendant had not made out a case of adverse possession, and it is this adverse finding of the trial court which appellant asks this court to overthrow. To' entitle defendant to recover on the ground of adverse possession he must show ten years actual, open, notorious, hostile, continuous possession in himself, or those under whom he claims, under claim and color of title.' Hunnewell v. Adams, 153 Mo. 440; Hunnewell v. Burchett, 152 Mo. 611. And the proof of the possession required by the statute should be clearly made. Schumate v. Snyder, 140 Mo. 88; Hamilton v. Boggess, 63 Mo. 251Gaines v. Fender, 82 Mo. 509. In an action at law this court will not disturb the finding of the trial court as to the facts if there is any substantial evidence on which to base that finding. Smith v. Royse, 165 Mo. 658; Hahn v. Cotton, 136 Mo. 225. The sufficiency of the evidence to support the finding of the circuit court on a question of adverse possession .cannot be questioned on appeal. Bartlett v. Kander, 97 Mo. 356.
   GRAVES, J.

Action in ejectment for eighty acres of land in Stoddard county. Petition in ordinary form. Answer a general denial. Jury waived and trial before the court. Finding and judgment for the plaintiff, and defendant appeals. Plaintiff filed his motion to dismiss the appeal for certain alleged deficiencies in the abstract of the record but this, was, prior to the argument of the cause, overruled by this court. Afterward the respondent prints the entire bill of exceptions, by way of an additional abstract of the record, so that we now have a perfected abstract in the cause.

From the bill of exceptions it appears that the plaintiff showed a complete record title, by conveyances in legal form, from the Government down to himself. In this bill of exceptions appears the following:

“Plaintiff showed a regular chain of title from the Government to himself by legal conveyance and that he and his grantors have paid the taxes on the land each year, and for the purpose of this bill of exceptions defendant admits that the plaintiff has the paper title to said real estate. Defendant claims title by adverse possession under his deed.”

The deed above referred to was a quitclaim deed purporting to have been executed by William 'Hodge and wife to Sam Wethington for the land in dispute, on May 31, 1893, and on said day acknowledged before Charles Massey, a justice of the peace. This instrument was not filed for record until July 8, 1903, just twenty-three days prior to the institution of this suit.

Defendant Wethington,' testifying in his own behalf, said that at the institution of this suit he did not live on the land, but that he was cultivating all of the cleared land, except a garden spot; that some eighteen months before, he had rented the house and garden spot to one Powell for one dollar per month, and said Powell was in possession of the house and garden; that he, defendant, had cultivated the field each year. He further said that he took possession of the land and built the house thereon some two years before he got the deed from Hodge; that Hodge claimed to own the land and he paid fifty dollars for the eighty acres; that he had paid no taxes, saying that they could not let him pay any taxes. As to whom is meant by “they” does not appear. In telling when and how he first settled upon the land, he said: “I went there and stayed on the land with the expectation of buying it from the first man who would sell it to me. I wanted a home and that was the best I could do — they told me there they didn’t know who owned it, and this man Hodge come along and told me he owned it, and I just bought it from him.”

He further testified that he made no clearing until after he got the deed from Hodge and since then had only cleared five acres; that he or his tenants had occupied the house on the land from the time it was built until date of the trial.

Charles Massey, who- acknowledged the deed, testified, in substance, that he took the acknowledgment of the deed; that defendant was living on the land at the time and had a house and a clearing of five or six acres. The deed was shown the witness and his attention was called to an erasure in the description and handwriting of the instrument, including that substituted for the erased portion. The witness testified that he thought it was all his handwriting, but he was not positive, nor was he positive that he had made the erasure in the deed. This deed was objected to at the trial on account of the erasure, but we see no ruling of the court thereon, and presume that the court considered it in evidence, for what it was worth. The deed was likewise submitted to this court at the argument of the-case. The witness Massey further testified to the continuous possession of the defendant for some time prior to the deed, and that after the deed defendant claimed title and was recognized as the owner by parties in the neighborhood.

Defendant Wethington testified that the erasure and change in the description was made before the deed was acknowledged.

This in substance is the evidence.

The bill .of exceptions as printed in full by the respondents contains this statement, just after the close of the testimony: “Whereupon the defendant prayed the court to make the following declaration ■of law, to-wit:- (Clerk here insert same). Which was given and the court found for the plaintiff and against the defendant, and rendered judgment accordingly.”

Prom this it would appear that all of the instructions asked were given, although the defendant claims in his- abstract that certain instructions were refused, but has no challenge to- respondent’s additional abstract of record wherein the whole bill of exceptions is printed including the signature of the trial judge. No objections to- this additional abstract, served and filed by the respondent, has been filed in this court as required by our Rule 11, and hence we take it that none can be made thereto, and proceed upon that theory.

It is true that by way of reply brief the defendant again claims that his instructions are marked refused, but does not in any way dispute the fact that respondent lias correctly printed the full bill of exceptions, as the same appears on file.

So that as the record appears, from the bill of exceptions, all declarations of law asked by defendant were given by the court. This sufficently states the case. Other bits of testimony may be noted later.

I. The judgment against the defendant was for the whole of said land. It is shown that the actual possession of the house and a garden spot was in the possession of one Powell, as the tenant of defendant, at the institution of this suit. Respondent in the brief does not question this fact. Nor does he question that defendant, at the institution of the suit, lived on a' place about a mile from the land in dispute and that he cultivated the field thereon.

Under this statement of the facts, defendant contends that the action cannot be maintained against him without joining his tenant as a codefendant, and that the judgment herein is erroneous. In this we think defendant is correct. By section 3056, Revised Statutes 1899, suits in ejectment must be brought against the person in possession.

In case of landlord and tenant, with the landlord off of the premises and the tenant in actual possession, the action may be brought against both, but not against the landlord alone. [Shaw v. Tracy, 95 Mo. 531.]

To the same effect is Phillips v. Phillips, 107 Mo. 1. c. 363, where the following instruction is declared to be the law:

“That the possession of a tenant is not such possession of the landlord as will enable a plaintiff inejectment to recover against such landlord as a sole defendant, and if the court finds from the evidence in this case that at the time of the institution of this suit defendant had a tenant in actual possession of the premises, and that he, the defendant, was not in the actual possession of the premises, the judgment should be for the defendant.”

See, also, review of authorities in Llewellyn v. Llewellyn, 201 Mo. 303.

And if different tenants occupy separate portions of the premises they should be separately sued. [Sutton v. Casseleggi, 77 Mo. 397.]

At common law the action was against the occupant or person in possession.- [10 Am. and Eng. Ency, Law (2 Ed.), 524; 15 Cyc. 60.]

Nor does our statute, section 3056, Revised Stat-' utes 1899, change the common law rule, although by section 3057 the landlord may be made a party defendant.

In the case at bar, it appears that the defendant, landlord, was in possession of a part of the land, and as to that the suit was properly brought against him, but the judgment goes further, and gives judgment of ouster against him as to the whole tract. In this there was error. Nor is there such descriptions as to the portions occupied by the two parties, contained in the evidence, so that we could enter a proper judgment here. There should always be reasonable certainty in the description of the premises. [15 Cyc. 92.]

Under the evidence in this case the location of the house and garden spot in the possession of Powell is not apparent. Nor is the size or other description of this property made plain. It is mentioned and described in the most general terms.

We conclude therefore that there is error in this [judgment, and the record is not in such shape as will enable us to enter a proper judgment here.

II. Plaintiff contends that defendant must admit possession, or he has no standing on his claim of adverse possession for ten years. There is nothing in this contention. Ejectment is a possessory action and must be brought against the party in possession. The possession required by the common law and by our statute, for the purpose of maintaining this action, is wholly a different thing from the possession required by the law to ripen a title by the Statute of Limitations. To explain: A. may take possession of lands, under color of title and personally occupy such lands for five years, and then rent the lands to B. from year to year for five years, during which time B. would occupy them as the tenant of A. At the end of the ten years there would have been such adverse possession in A. as to entitle him to a decree of title under the Statute of Limitations, but had an ejectment suit during the last five years been brought against A. alone, it ¡could not have been maintained. [Shaw v. Tracy, supra.] This illustration draws the distinction clearly.

III. As this case will have to be retried, there is one other question to be- noted. Defendant contends that as two witnesses testified to the adverse possession in defendant for ten years, the trial court could not do otherwise than to find for the defendant. This does not necessarily follow. The credibilty of that testimony, although undisputed by direct testimony, was for the trier of the facts.. [Gannon v. Laclede Gas Light Co., 145 Mo. 502.]

The good faith of this adverse occupancy was a question to be considered by the trial court. As said by Norton, J., in Gaines v. Saunders, 87 Mo. 1. c. 563: “That those claiming adversely under color of title, must enter and occupy the land in good faith claiming the whole tract, relying on color of title as being the legal title, is well-settled law, and was fully recognized by the trial court in the instruction given for plaintiffs above quoted. As to whether the entry and claim in this case was so made by John Middaugh was a question for the triers of the fact, and as there was evidence upon which to submit the. question, we are not at liberty to substitute ourselves for the triers of the fact, and to re,-try it on the evidence. [Hamilton v. Boggess, 63 Mo. 233.]”

Here we have the original entry, and according to one witness. (Massey) all the improvements made at a time when, under all the evidence, the defendant was a mere “squatter.” There is evidence tending to show a change in the deed. The deed is not recorded. No taxes are paid. Only five acres cleared and improved in twelve years. All these things bear strongly upon the good faith of the claim of adverse possession, now made by defendant. These things bear directly upon the question as to whether or not during these years the defendant was relying upon his alleged color of title as the legal title. His actions speak louder than his words. According to Massey, all the small improvements made were made when he was a mere ‘ ‘ squatter, ’ ’ and nothing done since tending to show that he placed any reliance upon his alleged deed.

We say, frankly, that were it not for the errors hereinabove mentioned, we would affirm this judgment, giving, as we always do, due regard for the finding-on the' facts, as made by the trier thereof in the court nisi, in purely law cases. But for the errors above mentioned the judgment is reversed and the cause remanded.

All concur.


author: LAMM, J.

text:
    KENEFICK and HAMMOND, Doing Business as a Copartnership Under Firm Name of KENEFICK-HAMMOND COMPANY, v. NORWICH UNION FIRE INSURANCE SOCIETY, Appellant.
    Division One,
    June 29, 1907.
    1. FIRE INSURANCE: Explosives. Where the policy provided that “this entire policy, unless otherwise provided by agreement endorsed thereon or attached thereto, shall be void ... if the hazard be increased by. any means within the control or knowledge of the insured, or if . . . there be used, kept or allowed on the premises . . . gunpowder exceeding twenty-five pounds in quantity, naphtha, nitroglycerine or other explosives,” and nitroglycerine, dynamite, etc., were stored in the building without the knowledge of ■ the company or its agent, the insured cannot recover, whether the fire originated from explosives temporarily stored in the building or not.
    2. -: -: Material to Risk. And even though the fire did not originate from the explosives and they did not contribute to the loss, the policy is not protected by section 7973, Revised Statutes 1899, providing that no condition in any policy shall be taken or construed as other than a mere representation unless it is material to the risk insured against. To so construe that statute would be to deny to fire insurance companies the right to limit the risk against which they may limit policies of insurance.
    3. ———: -: Waiver. And where no agent or officer of the company knew of the storage of the explosives in tbe building mentioned in the policy and they continued therein down to the time of the fire, there is no fact or circumstance from which a waiver of the provision in the policy against keeping explosives in the building can be inferred.
    4. -:-:■ In Building Insured. It does not matter whether or not the building was insured, if the policy accurately described a building in which were kept certain stocks and supplies, and covered those things “in the above-described premises.” There is a distinction between goods kept “in the premises insured,” and goods insured “while contained in the above-described premises.”
    5. -: -: Subtleties. The courts are relieved of subtleties and fine distinctions in construing contracts of insurance by the statute which requires them to be construed like other contracts.
    6. APPELLATE PRACTICE: Theory of Trial: Demurrer: Estoppel: Waiver. Where both parties try a cause upon a certain theory, neither can have it considered upon another and different theory in the appellate court. But where defendant at the close of all the evidence offered a demurrer to the evidence as a whole, which the court refused and he excepted, the appellate court is required to review all the evidence heard on the trial and determine for itself whether or hot there was. substantial evidence to support the verdict. Defendant did not estop himself or waive his right on appeal to pursue his exception to the court’s ruling on his demurrer, by.asking and receiving instructions the converse of those given for plaintiff.

      7. -: -: -: -: --: Position of Parties. There is a difference between the position occupied by plaintiff and that occupied by defendant at the trial. Plaintiff 'selects the ground of contest, and may withdraw voluntarily. Defendant is compelled to remain in court, and if defeated on one line of defense he is not thereby estopped from assuming others. If the court erroneously denies him one of his defenses, he does not waive it by insisting on others.
    8. -: --: -: -: -: Order of Instructions. The order in which instructions are asked is of doubtful utility in arriving at ultimate justice. In strict logical sequence, if defendant contends there is no case to go to the jury he should hand up his instructions in the nature of a demurrer first, and immediately at the close of the case. But there is nothing material or vital in the mere order in which instructions are asked or passed upon. Defendant does not waive the right to have his demurrer considered by presenting it along with his other instructions designed to state the converse of plaintiff’s theory of the case as contained in his instructions.

      9. INSURANCE: Material to Risk. Tons of dynamite and other forms of explosives are material to an insurance risk, and no judge should take the opinion of a jury on the point.
    10. —-: -: Definition. It would be impossible to compress within the limits of a judicial formula what would be material to a risk under any and all circumstances. Bach case must depend on its own facts.
    Transferred from St. Louis Court of Appeals.
    Reversed.

      Fyke Bros., Snider & Richardson for appellant.
    (1) The court erred in giving plaintiffs’ second instruction, (a) There is no evidence upon which to predicate that instruction. There is not a scintilla of evidence that defendant’s agent knew at the time the policy was issued that powder, fuse caps and explosives were kept in the building covered by the policy, (b) Even if the agent knew that dynamite constituted a part of plaintiffs’ supplies, it does not follow that he knew that such dangerous agencies were kept or to be kept in the building, and such knowledge does not constitute a waiver or estoppel. Fischer v. Ins. Co., 83 Fed. 807. (2) Plaintiffs’ third instruction is erroneous, because, first: The fact that powder was temporarily kept in the building does not relieve plaintiffs from the effects of a violation of the contract on their part. And, second: It makes no difference whether powder contributed to the loss or not. Horner v. Ins. Co., 93 Mo. App. Ill; Kyte v. Ins. Co., 21 N. E. 361; Ins. Co. v. Faires, 35 S. W. 55; Martin v. Ins. Co., 52 N. W. 534; Bayer v. Ins. Co., 83 N. W. 124; Nor-ways v. Ins. Co., 68 N. E. 551; Faulkner v. Ins. Co., 1 Kerr 279. (3) Plaintiffs’ fourth instruction is erroneous. The fact that powder, etc., was customarily kept by plaintiffs as part of their railroad supplies, can be of no importance from any standpoint, unless such supplies were customarily and usually kept in the building described in the policy, and even then to hold the defendants liable would be flying in the face of the contract, which provides that such articles shall not be kept (any usage or custom of trade or manufacture to the contrary notwithstanding). The evidence shows that it was not only not customary to keep such articles, but that it was a violation of law to do so. Fisher v. Ins. Co., 83 Fed. 807; Sperry v. Ins. Co., 26 Fed. 234. (4) In arriving at its. verdict the jury wholly disregarded defendant’s second instruction. Payne v. Railroad, 129 Mo. 421. (5) Courts will take judicial notice of the fact that the storage of explosive fireworks in the same building increased the risk of the loss of the insured property by fire. Betther v. Ins. Co., 80 N. W. 971.

      Edward J. White for respondents.
    (1) The powder and explosives, which defendant claims forfeited the policy sued on, under the undisputed evidence that such property constituted a part of plaintiffs’ “supplies,” were included in and covered by the written portion of the . policy, describing the property insured. All of the evidence, both of plaintiffs’ witnesses and defendant’s agent, was to the effect that powder and caps are a part of a railroad contractors “supplies.” The written portion of the policy covers plaintiffs’ “supplies, consisting of hay, grain, feed, scrapers, wagons, plows and other tools and supplies, kept in their warehouse.” Both before and after the particular supplies enumerated, appears, in the written portion of the policy, the more general term “other supplies.” Upon the competency of parol proof to apply the policy to the subject-matter insured, where there is doubt about its application, there can be no question. May on Ins. (2 Ed.), secs. 233, 239; Ins. Co. v. Dobbins (Tenn.), 86 S. W. 383; Archer v. ■ Ins. Co., 43 Mo. 441; Pindar v. Ins. Co., 36 N. Y. 648; Fink v. Ins. Co., 60 Mo. App. 673; Bernard v. Ins. Co., 27 Mo. App. 26; Springfield Laundry v. Ins. Co., 151 Mo. 90; Langford v. Ins. Co., 97 Mo. App. 79. (2) If the powder and other explosives were not included within the description of the property insured, as a part of plaintiffs’ “supplies,” the presence of such articles in the building, up to the time of the fire, would not work a forfeiture of the policy,, as they did not contribute to or in any way affect the contingency upon which defendant’s liability became absolute. Laws 1897, pp. 130,131 fsecs. 7973, 7974, R. S. 1899; Chouteau v. Railroad, 122 Mo. 375; Crimes v. Reynolds, 94 Mo. App. 576; Ross v. Railroad, 111 Mo. 18. The “risk insured against” in a fire policy, is a loss by fire. Certainly, nothing is “material” to that risk, unless it, in some way or some manner, caused or effected the fire. The property was lost, by the specific cause, upon which the indemnity was payable. The risk from other causes may have been greatly increased by the insured, but unless such acts “materially affected the risk insured against,” the other causes which increased the ■risk, would be wholly immaterial to the specific “risk insured against,” which was the loss by fire. Section 7973, Revised Statutes 1899, was a part and parcel of the policy sued on (Christian v. Ins. Co., 143 Mo. 460); with its term incorporated into the policy, the violation of none of the promissory warranties or conditions subsequent, such as the clause invoked by defendant, would defeat the policy, unless the acts so promised “materially affected the risk insured against.” Carp v. Ins. Go.] 92 S. W. 1141,116 Mo. App. 528; Curry v. Ins. Co., 6 ‘Wheel. Am. C. L. 204; State v. Ebbs, 89 Mo. App. 95Springfield v. Starke, 93 Mo. App. 70; Grimes v. Reynolds, 94 Mo. App. 576; Jenkins v. Ins. Co., 171 Mo. 381; Schuerman v. Ins. Co., 165 Mo. 652; Kern v. Ins. Co., 167 Mo.. 471; Ins. Co. v. McLain, 85 S. W. 700; Ins. Co. v. Stockyards C'o., 87 S. W. 287; Ins. Co. v. Catlin, 45 N. E. 255; Ins. Co. v. Witman, 32 111. 221; Arnold v. Ins. Co., 84 Pae. 185 ; Ohermeyer v. Ins. Co., 43 Mo. 573; Greenleaf v. Ins. Co., 37 Mo. 25; Renshaw v. Ins. Co., 33 Mo. 394. (3) In any event, the question of .whether or not the presence of the powder was “material to the risk insured against,” was a question of fact for the jury to determine. Hanna v. Ins. Co., 109 Mo. App. 156; Burg Bros. v. Ins. Co., 106 Mo. App. 256; Schroeder v. Ins. Co., 46 Mo. 178; Schultz v. Ins. Co., 57 Mo. 337; May on Insurance (2 Ed.), sec. 184; Ins. Co. v. Stockyards Co. (Ky.), 87 S. W. 285. (4) As the extra-hazardous property was only temporarily in the building where the insured property was located, and it was all removed before the consummation of the loss by fire, the temporary presence of such property should not avoid the policy. Arnold v. Ins. Co., 84 Pac. 182; 2 Cooley’s Briefs on Insurance, p. 1689; May on Insurance (2 Ed.), sec. 246; Ins. Co. v. Wade (Tex.), 68 S. W. 977; LaForce v. Ins. Co., 43 Mo. App. 518; Planing Mill v. Ins. Co., 59 Mo. App. 204; Fink v. Ins. Co., 60 Mo. App. 673; May on Insurance (2 Ed.), sec. 241; Ohermeyer v. Ins. Co., 43 Mo. 573; Greenleaf v. Ins. Co., 37 Mo. 25; Renshaw v. Ins. Co., 33 Mo. App. 394; Schmidt-v. Ins. Co., 41 111. 295; Putnam v. Ins. Co., 4 Fed. 753; Ins. Co. v. Lawrence, 61 Ky. 9; Ins. Co. v. Shoe Co., 80 Pa. St. 407; Hynds v. Ins. Co., 16 Barb. 119. (5) The clause invoked to * avoid the policy, against the keeping or use of prohibited articles, applied only where the policy covered real estate, or “premises” and not to insurance upon personal property. Leggett v. Ins. Co., 10 Rich. L. 202; Ins. Co. v. Fulton, 80 Ga. 325; May on Insurance (2 Ed.), sec. 243. (6) The evidence of the knowledge on the part of defendant’s agent, of the character of the property insured and usually kept in the wareroom where the insured property was located, amounted to- such evidence of waiver of the- forfeiture clauses invoked as to enable plaintiffs to submit this issue to the jury. Appellant’s agent, who wrote the policy, not only showed a thorough knowledge of what constituted a railroad contractor’s “supplies,” which he had insured, but he stated that he also knew that such property was in the building with the other articles enumerated in policy. A knowledge of increased risk, by the insurer’s agent, is a waiver of the right to forfeit a policy for such cause. Anthony v. Ins. Co., 48 Mo. App. 65 ; Hamilton v. Ins. Co., 94 Mo. 353; Columbia Planing Mill v. Ins. Co., 59 Mo. App. 206.
   LAMM, J.

In the St. Louis Court of Appeals, Bland, P. J., wrote, and, with the concurrence of his learned brethren on that bench, there was handed down in this case, the following opinion (119 Mo. App. 308):

“The facts as developed at the trial are correctly set out in appellant’s statement as follows:

“ ‘On June 2,1903, appellant issued to respondents its policy of insurance for one thousand dollars, covering the property described in said policy as follows: “One thousand dollars on their stock of supplies consisting of hay, grain and feed, scrapers, wagons, plows and other tools and supplies kept in their warehouse; all while contained in the one and one-half story brick building with composition roof situate on lots No. 14 and 15, block No. 3, street Nos. 143-145 West Olive street, Aurora, Missouri.”

“ ‘The respondents were railroad contractors engaged in grading a railroad some miles from Aurora. They used dynamite in blasting rock encountered in their work. They kept a powder magazine about a mile arid a half or two miles from the city of Aurora, where they usually kept their powder and dynamite. They did not ordinarily keep powder or dynamite in the building described in the policy, but the building was used to store grain, hay, plows, scrapers, and such articles while not in use, and occasionally men, in respondents’ employ, were permitted to sleep in the warehouse. The building was close to the center of the city of Aurora. Under the city ordinances no one whs allowed to keep within the fire limits of the city, or within one block of the public square or any schoolhouse or church, a greater quantity of blasting powder than twenty-five pounds, or a greater quantity of nitroglycerine (dynamite) than one pound. The building described in the policy was within the fire limits, and one block from the bank of Aurora, and one block from the Frisco depot.

“ One Woodfill was appellant’s agent at Aurora, and countersigned the policy. At the time the policy was issued no powder or explosives of any kind were stored or kept in the building, and up to that time, and until the time hereinafter mentioned, nothing of the kind had been kept or stored in said building. On the contrary, respondents had kept their explosives, except such as were in use along the line of work, in a powder magazine constructed and located for that express purpose. All merchants doing business in Aurora, who handled powder, also had powder magazinés located out of the city, and it was not usual or customary for merchants in Aurora to keep or allow about their business houses in the city any explosives except in small quantities. When the policy was applied for and issued, no request was made for permission to store or keep' explosives in the building, and, as before stated, no explosives were there at that time or at any time prior thereto.

“ ‘On September 19, 1903, a fire occurred which destroyed the building and a portion of its contents. About a week before the fire occurred Woodfill went away from Aurora and did not return until after the fire. Up to the time he left nothing had been said to him about placing or storing dynamite or other explosives in the building, and up to the time Woodfill went away, no such articles had been kept or placed in the building. On Tuesday or Wednesday before the fire, which occurred on Saturday, the respondents stored in the building described in the policy about two tons of dynamite, twelve thous- and, five hundred exploders and one thousand, five hundred caps. These explosives had been in the car on the railroad track about.four days before they were put in the warehouse. Respondents were compelled (presumably by the. railroad company) to take the stuff out of the cars; and put the same in the warehouse, because respondents could not-get teams to haul it to their magazines and because their magazines were full.

“ ‘All the explosives above mentioned were in the building at the time of the fire. The appellant had no notice of such fact, nor did its agent, because he went away from the city before the dynamite was in the building and did not return until after the fire.

“ ‘When the fire occurred, it does not appear that any one representing respondents was about the premises. When the alarm was given the fire department went to the scene and began trying to extinguish the fire. It soon became noised around that there was powder in the building. Whereupon the populace, usually attendant upon fires, withdrew to a safer place, and the firemen began to explore for exploders, etc., and finally located the dynamite in a room which was so located that they had to chop with their axes their way to- the powder, and through the heroism of the firemen who risked their lives in the work, the dynamite and other explosives were removed in time to save an explosion, which would probably have resulted in loss of life as well as great damage to property in the city.

“‘The policy contains the following provisions:

‘ ‘ This entire policy, unless . otherwise provided by agreement indorsed hereon or added hereto, shall he void ... if the hazard be increased by any means within the control or knowledge of the insured, . . . or if (any usage or custom of trade or1 manufacture to the contrary notwithstanding) there be kept, used or allowed on the above-described premises . . . gunpowder exceeding twenty-five pounds in quantity, naphtha, nitroglycerin, or other explosives.”

“ ‘If the appellant had known that the dynamite and other explosives were put, kept or allowed in the building it would have cancelled the policy as quickly as possible.’

“At the close of all the evidence the defendants moved the court to instruct the jury that the plaintiffs could not recover. The court refused to give this instruction and gave instructions so declaring the law to the jury that it was so enabled to, and did, bring in a verdict for the plaintiffs for the full amount of the policy. A motion for a new trial proving of no avail, defendant appealed.

“1. That the storage of powder and other explosives mentioned in answer and-the evidence was a violation of the terms of the policy, does not admit of a doubt. The agent of appellant, who signed and delivered the policy to the plaintiffs, tried very hard to swear that he knew powder was kept in the building when he issued the policy, but, when he was pinned down to what he actually knew, it was shown that he had no such knowledge and the evidence shows that it was- not usual to keep powder in the building 'described in the policy of insurance. Because the fire did not originate from the explosives temporarily stored in the building, it is contended by respondents that they did not contribute to the loss and for this reason the policy is protected by section 7973, Revised Statutes 1899, which provides — in substance — that no condition in any policy of insurance shall be taken or construed as other than a mere representation unless it is material to the risk insured against.

“The construction the respondents would have us put upon this section is that no condition of a policy of insurance shall be construed as other than a mere representation unless it contributed to the loss. Such construction would be a perversion of both the language and meaning of the statute.

“In Dolan v. Ins. Co., 88 Mo. App. 1. c. 672, Judge Ellison, of the Kansas City Court of Appeals, in respect to this section said: ‘ This statute does not avoid all warranties, but only such as are not material to the risk. All matters warranted which are material to the risk are left just as they were before the statute. ’ And cited in support of this construction the construction of similar statutes in March v. Ins. Co., 186 Pa. St. 629, and Brown v. Ins. Co., 172 Mass. 498.

“The construction contended for by the plaintiffs would deny to fire insurance companies the right to limit the risk against which they would issue policies of insurance. That the storage of the explosives in the building by plaintiffs increased the risk and was a clear violation of the express provisions of the contract of insurance, admits of no doubt. By this, act the policy was forfeited and the plaintiffs should have been nonsuited, 'unless there was a waiver of the forfeiture.

* ‘There is nothing in the evidence tending to show any fact or circumstance by which a waiver can be inferred. No agent or officer of the company knew or had been informed of the storage of the explosives until after the fire.

“Plaintiffs refer to Greenleaf v. Ins. Co., 37 Mo. 25, and Obermeyer v. Ins. Co., 43 Mo. 573, as holding that defendant should be held liable on the policy, notwithstanding the violation of the contract by them. These cases, in effect, decide that where a fire or marine policy contains a provision for forfeiture on the doing of a particular act by the insured and the insured violates the provisions by doing the act, but the company for any reason fails to take advantage of the forfeiture by .cancelling the policy, and the thing done that effected the forfeiture ceased to exist or have any effect or influence on the risk insured against, and afterwards there is a loss during the life of the policy, the company cannot invoke the dead and past forfeiture as a defense. The policy, in such circumstances, is inoperative only while the increased risk is in existence, and ■ when it terminates the liability of the company will recommence. [Schmidt v. Ins. Co., 41 Ill. 295.] The increased risk in this case continued down to the fire and the policy for this reason was, inoperative when the fire occurred.

“2. Plaintiffs refer to a very nice point made and sustained by the Supreme .Court of South Carolina in the case of Leggett v. Ins. Co., 10 Rich. Law 202. The policy provided that the keeping of gunpowder for sale, or in storage, upon or in the premises insured, should render the policy void. The insurance was upon a ■stock of goods and merchandise contained in applicant’s store, a part of which consisted of gunpowder. But it was contended and held that the word ‘premises’ referred to buildings insured and as there were no buildings insured, the gunpowder was not kept upon or in the premises insured within the meaning of the stipulation. The Leggett case is distinguishable from the one in hand. In the South Carolina policy the clause construed reads as follows: ‘ The keeping of gunpowder for sale, or in storage, upon or in the premises insured,’ etc. The goods insured in the case in hand, were insured while located and contained in a one and one-half story brick building, with composition roof, situated on lots 14 and 15, block 15, street No. 143-145 West Olive street, Aurora, Missouri. That part of the prohibitive clause under review reads as follows: ‘ If illuminating gas or vapor be generated in the described building (or adjacent thereto) for use therein; or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or .allowed on the above-described premises benzine, benzole, dynamite, ether, fireworks, gasoline, quickfire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitro-glycerin or other explosives, phosphorus or petroleum or any of its products of greater inflammability than kerosene oil of'the United States • standard (which last may be used for lights and kept for sale according to law but in quantities not exceeding five barrels provided it be drawn and lamps filled by daylight or at a distance not less than ten feet from artificial light); or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days. ’ The intent and purpose of this clause is plain. The words ‘building’ and ‘premises’ are used interchangeably. The prohibition goes to the storage, or the keep*ing of the prohibited articles in the building where the goods insured were located. We are relieved of subtleties and fine distinctions in contracts of insurance under the laws of this State which require them to be construed like any other .contract.

“3. Plaintiffs further contend that the case was tried upon a theory adopted by the defendant and it is thereby estopped to raise an objection to the action of the court in overruling its demurrer to the evidence and submitting the issues to the jury. It is a well-settled rule of practice in this State that where parties try a cause upon a certain theory, neither party can have the case considered on another and different theory in the appellate court. [Mirrielees v. Railroad, 163 Mo. 1. c. 486, and cases cited.] But where, as was done in this case, the defendant, at the close of all the evidence, of-. fers a demurrer to the evidence as a whole, which the court refused to grant, and he saves his exceptions to the rulings of the court, the appellate court is required to review all the evidence heard on the trial and determine for itself whether or not there is substantial evidence in support of the verdict. [McPherson v. Railroad, 97 Mo. 253; Weber v. Railroad, 100 Mo. 194; Hilz v. Railroad, 101 Mo. 36; Jennings v. Railroad, 112 Mo. 268; Kerr v. Cusenbary, 60 Mo. App. 1. c. 560; Flinn v. Bldg. Assn., 93 Mo. App. 444.]

“There is no substantial evidence in the record in support of the verdict; on the contrary, the evidence clearly shows beyond peradventure that the policy was inoperative at the time of the fire and the demurrer to the evidence should have been given.

‘ ‘ Judgment reversed. ’ ’

Thereupon' Judge Bland was of the further opinion that the third paragraph of the opinion rendered is opposed to the opinion of the Kansas City Court of Appeals in the case of Frankenthal v. Assurance Co., 76 Mo. App. 15, and the cause-was certified here for determination in accordance with section 6 of the amendment made in 1884 to article 6 of the Constitution.

I. The proposition in the third paragraph is to the effect that where a defendant challenges plaintiff’s theory of the sufficiency of all the evidence to make a case for plaintiff by submitting an instruction in the nature of a demurrer to the evidence at the close of the case, such defendant does not estop himself or waive his right on appeal to pursue his exception to the court’s ruling on such demurrer by asking and receiving instructions the converse of those given for plaintiff. Is that proposition good law? Eminently so, because:

(a) In construing rules of appellate practico in accordance with right reason regard must be had to the difference between the position occupied by a defendant and that occupied by a plaintiff. Tbe plaintiff goes into court voluntarily; tbe defendant is “lugged” in, that is, pulled in by tbe lugs, will ye, nill ye. Tbe plaintiff goes up to battle on bis own ground — be pitches tbe field. Tbe defendant by a plea in avoidance may undertake to flank plaintiff’s position and select another battlefield. Tbe trial court may parry tbe flanking operation and force defendant to join battle on tbe position taken by plaintiff. Having been thus coerced and having yielded, as be was in duty bound to yield (and because he could not help himself) bow can it be said that, because be made tbe very best of a bad bargain and tried “to pluck the flower, safety, from the nettle, danger,” be lost bis right to complain of tbe court’s ruling in coercing him?

In commenting upon this question, Gantt, J., in Cochran v. Railroad, 113 Mo. 1. c. 366, said: “It must be remembered that a defendant occupies a different attitude from bis adversary, tbe plaintiff. Tbe plaintiff brings tbe action. If tbe ruling is adverse, be may take ú nonsuit. Not so with the defendant. He is in court without bis consent. Tbe court may make any number of rulings that be may deem erroneous, but be cannot abandon tbe case; be is in court and must remain till tbe cause is finished. He has a right to tender as many defenses as be has. If tbe court erroneously deny him one, be must avail himself as best be can of those remaining. He, however, advises tbe court and bis adversary of his claim, and if be submits, as be is bound to do, to tbe ruling of tbe court, and tries bis case in accordance with its judgment, on what principle is be estopped from complaining of tbe action of tbe trial court and bis adversary in forcing him to fight tbe battle upon ground selected by them and at a great disadvantage to him1? We see no element of estoppel in such a case.”

Tbq reasoning in Barker v. Railroad, 126 Mo. 1. c. 151, is to the same effect. There Barclay, J., for this court In Banc, said: “Nor can it matter, in the result, that the defendant’s counsel, on cross-examination, asked the witness to repeat his account of the interview with the conductor. That course did not amount to a waiver of the right to urge the exception already saved to the ruling of the court in admitting that interview.Counsel might properly conform to that ruling for the purposes of the trial, without thereby waiving the right to review the admission of incompetent evidence that had come in, over his objection. After that evidence was before the jury, he might then combat it, or meet it, as best he might, without waiving the exception already taken. [Tobin v. Railroad, 18 S. W. 996; Martin v. Railroad, 103 N. Y. 626.] ’ ’

So, Brace, P. J., in Donnell v. Wright, 147 Mo. 1. c. 648, said: “It is contended, however, that the plaintiff waived this bar by offering evidence and asking instructions on the issue submitted to the jury. Had he voluntarily done so, this might have been the case, but as he was constrained to this course by the adverse rulings of the court he is not precluded from insisting on the error.”

And in Bailey v. Kansas City, 189 Mo. 1. c. 513, it was said: “It is further suggested by respondent that appellant cannot take advantage of said error, because, after the introduction of the evidence complained of, it proceeded on its own account to introduce evidence of the subsequent repairs and reconstruction of the sidewalk. Of this suggestion suffice it to say that the participation in error by inviting it waives the right of subsequent complaint by the losing party on appeal. But the reason of the rule ought not to permit its application to a case where the losing party, as here, does not' invite the error, but yields under protest to the theory of the trial court and thereafter tries, as best he may, to ameliorate his plight by administering an antidote to the poison already injected in the case, to see if, peradventure, he may not he able to render it innocnons. ’ ’

The reasoning of the cases cited by Bland, P. J., in paragraph three is in accord with that of the foregoing cases and sustains the proposition in that paragraph.

Indeed, it was a favorite notion of writers on sprightlier themes than the law, commencing, maybe, with Aristophanes and coming on down through a line of wits, including Butler, Scarron and Goldsmith, that:

“For he who fights and runs away,
May live to fight another day;
But he who is in battle slain,
Can never rise and fight again.”

Transmitting that notion into allowable law phrase, it might read thus: He who fights and runs away from a position taken on hi's answer and at the trial, because driven away by the court, may live to fight another day on appeal in the same position, if he marked the spot by an exception,- but he wlm is in battle slain — that is, who selects his place voluntarily, and who legally (speaking in figure) dies in his tracks on his selected theory, can fight no more on appeal, because: (as once a mortgage, always a mortgage, so) once fairly dead, always dead.

(b) The rule respondent invokes is the sensible common-place of the law that a case must be heard on appeal on the same theory it was tried below. That rule is constantly applied in many ways. But care must be exercised to put one’s finger on the theory upon which the case was tried. What if there be two theories. May one be taken and the other left? If a plaintiff and defendant jointly select a theory and try their case on that theory, neither may stray from it on appeal. If either litigant tole the court into error, the one to blame may not complain. So, if plaintiff and defendant jointly tole the trial court into error, neither may complain of that error on appeal. But it must not be forgotten that a defendant, in his defense, may have a quiver full of arrows, may be allowed more than one theory — may have two strings to his bow withal. For instance, his first theory may be that he is not liable as a matter of law on all the facts. His next theory may be that it is a question of fact to be put to the jury whether, under the evidence, he is liable on the issues put to them on plaintiff’s theory of the case. Precisely so is the record in this case. By answer, by its course at the trial and by the mandatory instruction ashed and refused, defendant insisted it was not liable on the facts as a' matter of law. The trial court refuséd to go hand in hand with defendant on that theory; and defendant, adjusting itself to the court’s theory, is not now estopped to reassert its first theory and waived none of its legal rights on appeal.

(c) It was said by Justice White in Hanson v. Boyd, 161 U. S. 1. c. 402, that: “There was no motion made at the close of the evidence to direct a verdict, and both parties therefore agreed to the submission of the issues of fact to the consideration of the jury. In the absence of such a request we must assume that there was sufficient evidence to warrant the court in permitting the jury to draw the inferences proper to be deduced from the evidence-in the case.”

In Hartford Ins. Co. v. Unsell, 144 U. S. 1. c. 451, it was said by Justice Hartan: “The only ground for serious doubt in respect to the case is, whether the evidence was sufficient in any view of it to sustain the theory that the defendant had by its course of business with the assured led him to believe, and that he, in good faith, believed, that the company waived, as to him, a strict performance of the conditions as to the payment of dues or premiums, and whether' if the court had given a peremptory instruction to find for the defendant, the verdict and judgment would have been disturbed. But we need not consider tbe case in those aspects; for the defendant assumed that it would be submitted to the jury, and asked instructions touching the several points on which it relied. It did not ask a peremptory instruction for a verdict in its behalf. It cannot, therefore, be a ground of reversal that the issues of fact 'were submitted to the jury.”

It would seem from the foregoing that the highest court in the land looks upon a failure of appellant to ask a peremptory instruction as equivalent to assuming that the case was a proper one for the jury on the facts —a theory he is bound by on appeal. If this be good law, how can it also be good law that if appellant does ask a peremptory instruction and it is disallowed, he waives his right to challenge the ruling by asking the converse of respondent’s instructions and thus, maybe, winning out on respondent’s own theory? To so hold would be the same as to say that appellant waived his point by asking no peremptory instruction and (mirabile dñctu) waived it by asking one. That is, he can stand on neither foot, and the last state of that man is worse than the first.

As we understand Frankenthal v. Assurance Co., 76 Mo. App. 15, the doctrine of that case is not necessarily in conflict with paragraph three of the opinion.. In another case (Hopkins v. Modern Woodmen of America, 94 Mo. App. 402) the Kansas City Court of Appeals came nearer to a decision contrary to the third paragraph of Judge Bland’s opinion than in the Frankenthal case. [See p. 409.] In that case there was a peremptory instruction asked and it was held that a right to a review of the ruling, nisi, on that instruction, under the record before the court, was waived by asking other instructions. In a still later case (Eberly v. Railroad, 96 Mo. App. 1. c. 367, et seq.) that court had under exposition the same question. It would seem from the ruling in the Eberly case that the Hopkins case rode off on a peculiar condition of the record —a condition we cannot make out precisely. In the Eberly case the orthodox rule was announced that an instruction in the nature of a demurrer to the evidence saves the point that there was no case to go to the jury on the facts and law. But if in either of those eases that court intended to say that the bill of exceptions should show the order in which instructions were asked or refused, and that there is vital significance in such punctilio, then such ruling is of doubtful utility in arriving at ultimate justice. In strict logical order, if defendant contends there is no case to go to the jury, he should hand up his instruction in the nature of a demurrer first and at once at the close of the case, because, if that instruction be given there is no' use of considering any other. But the practice is for both sides to hand their instructions up to the judge at one and the same time. Many trial judges require this to be done so that the court may have them all under his eye, may consider them by and large and pick and choose as his judicial acumen may fortify his sense of justice and prompt his action. We can see nothing material or vital in the mere order in which the instructions are asked or passed upon. They look alike whether viewed from a down to izzard, or, vice versa, from izzard up to a.

Moreover, the record in this case does not specify the order in which the instructions were asked. Learned counsel are supposed to know the law — are presumed to be skilled in the rules of logical order and sequence and to do their duty. Hence, in the absence of an abstract specifying the order in which instructions were asked, as here, it would be presumed they were asked in due order and sequence.

Respondents and appellant rebrief the case for this court and respondents urge the view that appellant waived its mandatory instruction when it participated in asking instructions on the issues under plaintiffs’ theory. There is no merit in the contention.

II. We have gone over the record and considered the contentions pro and con. We find the statement adopted by Bland, P. J., from appellant’s brief to be lively, but fair. We find the doctrine announced by him sound. It would be a startling proposition if tons of dynamite and other forms of explosives would not be said to be “material” to an insurance “risk.” No judge would have to take the opinion of twelve men on that point. There was no waiver shown by the evidence, and there was nothing to indicate that appellant was so foolish as to undertake to insure powder against fire under the' head of “supplies.” Plaintiffs grossly violated the ordinances of Aurora and the terms of the policy when they subjected the town to the hazard of destruction and when they, in a most inflamed way, subjected the defendant to the hazard of loss.

It would be improper, aye, impossible, to compress within the limits of a judicial formula what would be material to a risk under any and all circumstances. Danger lurks in generalization. It is well enough to decide the case at bar on the record before us; and on this view we have no hesitancy in' agreeing with the conclusion of the St. Louis Court of Appeals, that, as a matter of law, plaintiffs avoided their policy.

The judgment of the circuit court is accordingly reversed.

All concur.