Lewis v. Barnes

272 Mo. 377 | Mo. | 1917

Lead Opinion

BROWN, C.

This "suit was instituted in the NewMadrid Circuit Court on June 18, 1912. The petition although a single count contains the usual allegations and prayer for judgment to quiet the title to the west half of the southwest quarter of section 25, township 22 north, of range 13 east, in said county, and also in ejectment for the same land, of which it states that the plaintiff is the owner and that the defendant claims title to the same land by deed from one Stewart, as administrator of the estate of Stephen Lewis, to one John W. Marr, dated August 21, 1876, and duly recorded, which deed he says conveyed no title. The ouster in ejectment was alleged as of June 11, 1912.

The answer claims ownership of the land, denies generally the allegations of the petition not expressly admitted, pleads title by adverse possession for both ten and twenty-four years and also under what is known popularly as the thirty-year Statute of Limitation contained in Section 1884, Revised Statutes 1909. It also denounces the plaintiff’s title as having emanated by deed from one Drusilla Burner, formerly Drusilla Lewis, widow of Stephen Lewis, and charges that in 1873 she abandoned the land and had ever since stood by and seen him .making valuable and lasting improvements thereon, and expending large sums of money to increase its value, by reason of all of which it has become greatly enhanced in value. It also deraigns paper title through the administrator of Stephen Lewis, as charged in the petition.

No reply was filed, although the parties went to trial on the issues without objection on that ground.

At the trial the parties agreed that one Susannah Wright was the common source of title through a deed to Stephen Lewis dated December 6, 1871, and duly recorded in New Madrid County. This deed recites- a consideration of six hundred dollars. The date of its record is questioned. It was made in Indiana, where the grantor and grantee lived at the time, the latter with his wife Drusilla, to whom he had been married in September of the previous year. They were, as respondent stated in his brief, “extremely poor.” Upon receiving their deed they packed their little belongings, consisting of some bedding and other household articles, and came to New Madrid, and in the afternoon of the same day of their arrival took the articles they had brought to the little old log cabin on the land in question, about forty acres of which was cleared, where they lived together until the death of Mr. Lewis on April 5, 1873. In addition to their household goods they brought with them to New Madrid County a little girl — a child of Lewis by his former marriage — and while they were living in the cabin the plaintiff Wilber was born. That this place was the homestead of the Lewises under the provisions of the Homestead Law of 1865 (G. S. 1865, p. 449, sec. 1) is not questioned.

The time of the filing for record of the deed from Wright to Lewis is shown in evidence as follows: On its back is the following: “Deposited for Record this 6th day of January A. D. 1872, John A. Mott, Recorder. Recorded in Deed Book 23, Page 416.” This endorsement was written by William W. Waters who, at that date, had charge of the office, although he had not been appointed a deputy. After the deed is the following certificate:

“State of Missouri, County of New Madrid — ss. I, John A. Mott, clerk of said court and ecc-officio recorder in and for said county, hereby certify that the foregoing instrument of writing was filed in my office for record on the 19th day of July, 1872, and the same is duly recorded in Book 23, at pages 414 and 415. - Witness my hand and. seal of said court hereto affixed, at my office in New Madrid, this 19th day of July A. D. 1872. John A. Mott, Recorder; by Wan. W. Waters, Deputy Recorder. (Seal) ”

At the date of this certificate Mr. Waters had received his appointment as deputy. In the “Abstract and Index of Deeds” made under the provisions of section one of the Act of March 25, 1870, the entry in the “front part” arranged in proper columns, was as follows: “Grantor, Wright, S. & F. O.; Grantee, Stephen Lewis, Date of Instrument, December 6, 1871; Date of Filing, January 6, 1872; Nature of Instrument, Deed; Book and Page, Book 23, p. 415; Description, Southwest quarter 25-22-13.” The “back part” or Grantee’s Index shows precisely the same entries.

After the death of Mr. Lewis, Mrs. Lewis lived on the place with the children until December, 1873, when she returned to Indiana, taking the youngest child with her and leaving the little girl in New Madrid County with Mr. Augustine, a neighbor. She afterwards died. After remaining a while at her old home she went to Illinois, where a married sister resided, and where on August 29, 1875, she married one John Burner, with whom she lived in that State as his wife until his death in September, 1911. On June 8th following, Mrs. Burner, conveyed the land to her son, Wilber Lewis, who brought this suit.

After his arrival in New Madrid County and on January 20, 1872, Mr. Lewis purchased a horse from John W. Marr for $110, giving his note of that date for the purchase price and executing to Marr a mortgage to secure its payment, which purported to convey the west half of the southwest quarter of section twenty, in township twenty-two north, of range thirteen east, in New Madrid County. He had no other land in that county at the time than the tract in suit in section twenty-five. This mortgage was recorded on January 26, 1872. It was not signed by Mrs. Lewis, and she testifies that she knew nothing about it.

At some time in December, 1873, one J. C. Stewart was appointed administrator of the estate of Stephen Lewis, deceased. His bond was filed on the thirteenth day of that month. He inventoried this land, and on the inventory made the following note: “John W. Marr has a mortage on this land for $110, made January 20, 1872; also a mortage to Francis O. and Susanna Wright.” No such mortgage as'that last described appears in the record. Stewart made his settlement in May, 1880, in which he charged and credited amounts received and disbursed as follows:

“Charges to personal property as shown by the inventory and appraisement............. .$55.50

To proceeds of sale of land...................100.00

Credits by amount of property delivered to the widow.................................. 12.50

Personal property sold under execution......... 43.00

By cost of administration......................49.25

Cost paid John W. Marr on his judgment---- 50.75.”

As a voucher he filed the following receipt: “New Madrid Mo., Dec. 22, ’73 Rec’d. of Mr. J. C. Stewart all the articles that was’ appraised at Stephen Lewis place where he died except 7 hogs and one cow that was sold under execution. Levine (her mark) Lewis.”

Mrs. Lewis testified that she never knew of the appointment of an administrator, did not know Mr. Levine and never signed any receipt; that she could not write nor read written matter although she could read a little print; that she had never gone by the name of Levine, nor given.that as her name.

On August 24, 1874, Mr. Marr brought suit in the New Madrid Circuit Court against Lewis’s administrator alone to recover on the note for $110 and to foreclose the mortgage given on the land described as in section twenty to secure it. There is nothing in the petition to indicate that it had anything to do with the land in question. Judgment was rendered for the amount of the note and this judgment is relied upon to sustain the administrator’s sale pleaded by both parties. It was allowed by the probate court and assigned to the fifth class. No attempt is made to rely upon the judgment of foreclosure, which was evidently void because of the absence from the proceeding of the parties in interest, and on its face it does purport to foreclose the equity of redemption of the owners.

Mrs. Burner testified that when she left New Madrid County in December, 1873, she paid all the' taxes then charged against the land leaving it clear. That she left a tenant on it and also left Mr. Hatcher, a lawyer, in charge of it, who told her it was clear, and promised to look after it and pay the taxes out of the rent. That she supposed it was going all right until Mr. Hatcher wrote to her that he was about to institute suit against the land. That .she wrote to him, but never received any further communication. That hearing nothing about it she supposed the land was gone. Mr. Hatcher sent her $18, which he wrote he received from the tenant. The land was rented for $40 per year. When she left she told Mr. Hatcher she was going back to her people and wanted him to look after it, which he undertook to do.

The defendant’s counsel, on opening his case, made the following statement:

“Mr. Sharp: It is admitted that the defendant and those under whom he claims has been in the actual, open, continuous, notorious, exclusive and adverse possession of the land in controversy in this lawsuit since the 21st day of August, 1876, claiming to he- the owners of the same ánd that the defendant and his grantors have paid all the taxes on this land since August 21, 1876, and that neither the plaintiff nor anyone for him or under whom he claims paid any taxes on this land in question since August 21, 1876.”

The judgment of the court was for the defendant. The theory upon which it was founded is stated in the following instruction given by the court after having been modified against plaintiff’s objection:

“It being admitted that Susanna Wright and Francis O. Wright are the common source of title, the court declares as a matter of law that the deed from Susanna Wright and Francis O. Wright to Stephen Lewis, dated the 6th of December, 1871, introduced in evidence by plaintiff, passed the title to the west half of the southwest quarter of section 25, in township 22 north, of range 13 east, to Stephen Lewis; and if the court shall find from the evidence that he had a wife and minor ctíildren and resided with them on said land, using and occupying the same as a home and that the same did not exceed in value the sum of $1500, then said premises constituted his homestead; and if the court shall further find that the said Stephen Lewis died on the 5th day of April, 1873, while so occupying such homestead; leaving his widow, Drusilla Lewis, and two minor children, his homestead passed to and vested in such widow and minor children; that the widow took the same interest in the land that her husband had and the minor children had an interest therein until they, respectively, attained their majority. And the court further declares as a matter of law that, under the homestead law in force in the year 1873, the homestead so vested in such widow and children was not subject to the payment of the debts of said Stephen Lewis, unless legally charged thereon in his lifetime, and that these words mean that there must have been a lien of some kind imposed upon the homestead during the lifetime of said Stephen Lewis, and the court declares the Marr debt to be a ‘lien of some hind’ within the meaning of this instruction.”

The- modification by the court consists of the addition of that part italicized in the foregoing copy.

The court also gave, at plaintiff’s instance, the fol- • lowing instructions:

“The court further declares the law to be that, if it shall be found from the evidence that Stephen Lewis was the owner in fee of the west half of the southwest quarter of section 25, in township 22 north, of range 13 east, and used and occupied the same with his family as a home up to the time of his death; that he left surviving him his widow Drusilla Lewis, and two minor children, and that, said land did not exceed in value the sum of $1500, then upon the death of Stephen Lewis the same passed to and vested in his widow and minor children, the said Drusilla Lewis becoming entitled by operation of law to the fee simple title, subject to the rights of said minors; that if the court shall find that Drusilla Lewis intermarried with John Burner on the 28th day of August, 1875, the said Burner became immediately entitled by virtue of his marital rights to the possession of the said west half of southwest quarter of section 25 and could alone sue for the possession; that his wife had neither right of possession nor of action during his lifetime, and it being admitted in the record that the defendant did not take possession of the premises until August 21, 1876, after marriage of Drusilla Burner to John Burner, her rights are not affected or impaired by Section 1884 of the Revised Statutes, commonly oalled the thirty-year statute.

“The Court declares as a matter of law that there is no evidence, in this cause showing or tending to show that the equitable title to the premises in controversy emanated from the Government more than ten years before the institution of this suit, or at any time, and that the thirty-year statute therefore has no application arid cannot be invoked by defendant in this case.”

Date of Filing. I. The record conclusively shows that the deed from Susanna Wright and husband to Stephen Lewis was “deposited for record” in the office of the Recorder of Deeds for New Madrid County on January 6, 1872. The law (Laws 1870, p. 111, sec. 1) provided a special record, the “Abstract and Index of Deeds,” in which the date was required to be entered by the recorder when it was filed, and the record then made was the record of the act done at, the time. This is not overthrown merely by a record of the date of the same act not required by law to be made at the time, and purporting to have been made six months afterwards. The last record did not cancel the first. The deed was on file between the two dates as effectually as if the last entry had not been made. The public record made at, the time of the act, does not need the strong corroboration afforded by the ordinary file mark on the back of the deed. We are thus relieved from the necessity of further examining the question whether or not this land was exempt from sale by the administrator to pay debts of Lewis contracted before the deposit of the deed for record.

Homestead. II. In view of the conclusions stated in the preceding paragraph and of the undisputed and indisputable fact that at the time the debt for which this land was sold and the administrator’s deed under which respondent claims title were made, the land in question was the homestead of Stephen Lewis and visibly occupied by himself with his wife and children as such, no title passed under that sale unless the debt had been legally charged upon said land in the lifetime of Lewis as provided by the statute then in force. [G. S. 1865, p. 450, sec. 5.] It is therefore unnecessary to inquire whether, for the purpose of this case, the time of depositing the deed for record, or its date, or the entry upon the land marked the beginning of the inchoate right which culminated at his death. The question is whether the debt to Marr was “legally charged” upon the land in Lewis’s lifetime.

Our Homestead Law of 1865 followed close upon the heels of the Act of Congress of May 20, 1862, under which the greater part of the public domain then remaining was devoted to homes for the people who might acquire them under the protection of the Government against all debts contracted prior to the issuance of the patent. It would be difficult to overestimate the advantage to our national citizenship which has flowed from the operation of this law. Our own Homestead Law is founded in the same broad policy. It not only recognizes to some extent the claims of the wife who has cast her lot with the homesteader and become the mother of his children, as well as those of the infant children themselves, but also takes into consideration the advantage to the creditor of a nucleus around which may be gathered the wherewith to pay his debts. We can see no reason why the language of the law should not be fairly construed in furtherance of its purpose.

The “extremely poor’’ stand as high before the law as the extremely rich. To observe this equality in its administration it is necessary to take into consideration that while the latter are able to purchase many things, including the solicitous aid of counsel, the former are driven to rely upon that solicitude of the law for justice which can neither be bought nor sold. When Mrs. Lewis was driven in the quest for bread for herself and child, the duty rested upon her to do only what she could to preserve her rights in New Madrid County. She left her little home and such other petty interests as she had, in charge of one who agreed to look after it. It was rented for $40 a year and seems from the evidence to have been worth it, so that its proceeds would have paid her little debt almost as soon as the property was appropriated to a new owner. Under these circumstances there seems to be no reason why a strained construction of the- law should be invoked in aid of the title acquired by the debtor.

Sale for General Debts. III. As we have already said, her rights at that time are to be ascertained in answer to the question whether in Mr. Lewis’s lifetime his debt to Mr. Marr had been legally charged upon this land. If not, Mrs. Lewis and the minor children took the whole title free from any claim growing out of that debt. [G. S. 1865, p. 450, sec. 5; Skouten v. Wood, 57 Mo. 380; Gragg v. Gragg, 65 Mo. 343; Rogers v. Marsh, 73 Mo. 64; Johnson v. Johnson, 170 Mo. 34; Grooms v. Morrison, 249 Mo. 544; Kelsay v. Frazier, 78 Mo. 111.] The fact that the land was the homestead of the debtor made a prima-facie case against the validity of the administrator’s sale, for at the death of the husband the entire title of which he had been seized vested in the widow and two minor children by force of the statute. They took “the same estate therein of which the deceased died seized,” and neither the administrator nor the probate court at his instance had any authority to diminish it. [Balance v. Gordon, 247 Mo. 119, and cases - cited and reviewed.]

The trial court held, however, that it had already been diminished at the time of the death of the owner by his attempt to mortgage it, which constituted ‘ ‘ a lien of some kind” imposed upon it during.his lifetime. This is true in the sense that if the parties to the mortgage intended that it should convey this, land and failed by a clerical error of the scrivener, to describe it, the mortgagee might, by a proper proceeding in equity, in a court having jurisdiction, have secured such a correction of the instrument as would “legally charge” the land with the payment of the debt. Had he desired to do this after the death of Mr. Lewis it would have been necessary to make the widow and children, the true owners of the legal title as it then stood, parties to the proceeding and had he then secured his judgment the charge might have related back to the lifetime of the homesteader, and a sale under such judgment might have given the widow and children all the advantages that lie in the sale of a good title, as against the disadvantages resulting from the sale of a possibility, which is not a method favored by our law in the disposition of the property of the innocent and helpless wards óf the court. Instead of doing this the debtor ignored the real parties in interest against whom only he was entitled to a judgment changing the debt upon the land and sued the administrator, against whom the court had no jurisdiction to render such a judgment. This was, no doubt, deliberately done, for having obtained a personal judgment against the administrator he presented it to the probate court for allowance in the fifth class, thus waiving and abandoning his lien, rather than to give to the parties interested notice that he intended to enforce it. The property was sold, not for the payment of any alleged lien, but to pay the indebtedness of the estate and the entire costs of administration. The final settlement of the administrator illustrates this. The entire personal property was inventoried at $55.50, a credit is claimed of $12.50, which the administrator claims to have given the widow upon the evidently spurious receipt, and $43 charged as having been “sold under execution.” There is no attempt in the record to explain why or how property of the estate actually in the hands of the administrator could be sold under execution. The one hundred dollars realized upon the sale of the land is accounted for in round figures as follows. The entire costs of the administration $49.25, paid to Marr $50.75, amounting to the even one hundred dollars for which the land was sold, and which had been thus supplied to satisfy the entire costs of administration. '

That this sale was absolutely void there can be no doubt. That- it was a bungling attempt to obtain the land rather than the payment of the debt is written all over the record. The deed, on its face, left untouched the marital interest of Mrs. Burner, and the administrator divided the proceeds of the sale between himself and Mr. Marr. It is now too late for the present owners to abandon the title they have elected to take and claim under an old lien which they never sought to enforce. It is therefore unnecessary for us to inquire as to the meaning of the Legislature in the use of the words “legally charged thereon in his lifetime,” or of the purpose in the deliberate use of the word “legally,” since it was discarded in the proceeding.

IV. The real question in this case lies in the attempted application of the thirty-year Statute of Limi-' tation provided in Section 1884, Revised Statutes 1909. This provision is as follows:

Thirty-yesar Statute. “Whenever any real estate, the equitable title to which shall have emanated from the (Government more than ten years, shall thereafter, on any date, be in the lawful possession of any person, and which shall or might be claimed by another, and which shall not at such date have been in possession of the said person claiming or who might, claim the same, or of any one under whom he claims or might claim, for thirty consecutive years, and on which neither the said persons claiming or who might claim the same nor those under whom he claims or might claim has paid any taxes for all that period of time, the said person claiming or who might claim such real estate shall, within one year from said date, bring his action to recover the same, and in default thereof he shall be forever barred, and his right and title shall, ipso facto, vest in such possessor.”

It will be seen that it is drastic in its nature and a literal construction of its terms might lead to unthinkable results. There are lands in this State which, for the entire period expressed in that statute, have been considered of so little value and it has been so impossible to make them available as homes or for any purpose of agriculture that the taxes have remained unpaid for a period longer than that expressed in that statute, and which have suddenly attained value from the introduction of modern methods of drainage or otherwise. They then become the easy prey of any speculator who shall alight upon them and hold his possession for one .year. It is not necessary under its terms that he should pay the taxes himself. It is only required that he be the first comer and that the true owner should not have observed the changed conditions until he has fastened his claws in the title by a year’s possession. It is evident that such an acquisition contains no equity that calls upon the courts to be astute in devising ways not directly pointed out in the statute to support it. The right has no necessary foundation in merit, and the beneficiary himself looks only to the law for support. The statute is only directed against such as claim or might claim the possession of the land. The right of the beneficiary lies in possession and the claim which can defeat that right can only be directed against such possession.

A statute of limitations which permits one to obtain title to the wild lands of another by exercising over it possessory acts during one year might amount, in substance, to a legislative act taking the lands of one private citizen and giving them to another without compensation, but we find in the examination of this action that it does not purport to do so, but rather to denounce against the true owner the penalty of forfeiting his land for failure to perform the duty of paying his taxes to the State. To get any added force from this part of the statute we must assume that it was the duty of him who shall or might lawfully claim the possessory right to pay the taxes.

In this case the admission of record is “that the plaintiff, nor any one for him, or under whom he claims, has paid any taxes on this land in question since August 21, 1876.” We must therefore assume, taking the record as it is, that when Mr. Marr took possession on August 21, 1876, he did not take it encumbered by unpaid taxes and that the thirty-year statute began to run against "whoever was then entitled to possession. [Hall v. French, 165 Mo. 430.] In that case this court, In Banc, said (page 442): “No court has ever held that a right can be barred’ by limitation before the law permits the owner of the right to come'into court, for such a decision would be a solecism, a denial of due process of law, for it would not give the party ‘a day in court.’ If a remainderman came into court before the life estate had terminated, he would be turned out of court because his cause of action had not accrued. If he did not come into court within thirty years from the time the life tenant, or tenant for years, or tenant by the curtesy went into possession of the qualified estate, he would be turned out of court because he came in too late, albeit, his right of action had not then accrued. No such construction has ever been or could ever be placed upon section 4268, Revised Statutes 1899, and if that section was intended to prescribe any such rule of conduct it would violate the Constitution of Missouri as well as the Constitution of the United States, for it would deprive a person of Ms property without due process of law— without giving Mm a day in court.”

The doctrine so vigorously applied to this statute in that ease is still unshaken and is as applicable in this case as to the one then before the court. No adverse entry upon the possession of Mrs. Lewis and the children was made until Marr entered in 1876 under his void administrator’s deed. In the meantime Mrs. Lewis had been married to Burner who, by that act, became, by virtue of his marital rights, entitled to'the possession of the land in controversy for which he alone could sue. The estate of the children derived directly from their father, terminated with the majority of one and the death of the other, upon which whatever right of possession existed in them also passed to Burner in right of his wife. [Hall v. French, supra; Vanata v. Johnson, 170 Mo. 269; Graham v. Ketchum, 192 Mo. 15.] It was held in Graham v. Ketchum, supra, that the right of the husband to the possession of his wife’s land acquired before the enactment of the Married Woman’s Act of 1889 is not affected by the provisions of that act permitting the .wife to sue as a feme sole. In other words, that act was prospective and as to all property acquired by the husband before its passage his rights remain as they were at common law and in this State before the act was passed. This, the court said, citing Vanata v. Johnson, was the settled law of the State. That principle can, however, have no application to the running of the thirty-year statute in tMs case, for only twenty-two years elapsed between the taking effect of that act and the institution of this suit. We hold therefore that that statute has no application to this case.

Ten-year Limitation. V. The respondent contends that the action is barred by the ten-year statute, because the latter began to run immediately upon the death of Lewis, upon the theory that there was a constructive possession of some sort in the administrator adverse to the title of the widow, and to which her disability could not be tacked. Having started the statute, like the cork leg immortalized in the old ballad, it could not stop. - '

There is nothing in this point that requires further elucidation than its bare statement. That the administrator takes no title to the real estate-of the decedent is fundamental; and his official position cannot therefore constitute a claim of title. His connection with the possession is confined to obedience which he must yield to the direction of the probate court, which is the mouthpiece through which the law speaks to him. The right remains with those-to whom the law gives it. He represents the personal estate only, and has no power to expend a dollar of it upon the repair or maintenance of the realty. otherwise than upon the order of the court. [Thorp v. Miller, 137 Mo. 231-239, and cases cited.] It -would be preposterous to say that his assertion of right, whether by word or act, could start in motion the Statute of Limitations against every infant having an interest in the ownership, and divest its title by. mere delay in the performance of his duties. The respondent cites Spott-s v. Hanley, 85 Cal. 155, in support of this position. We see nothing in that ease affecting the question before us. It arose under some law of California which under the circumstances gave the right to the administrator to sue in ejectment to recover the possession of the premises, and it- was held that the judgment in his favor was an adjudication that the possession of the tenant as against him was wrongful from the date of the beginning of the action up to the time of its rendition, and inured to the heir whom the administrator represented in the suit. It lends no support to the theory that under our law the administrator had a possessory right which'he may use by mere delay to defeat the title of the heir.

Laches. VI. The question of laches (or estoppel) as presented by this record does not recommend itself to our consideration. We have already suggested that it is the glory of our system of equity jurisprudence that the poor approach its tribunals on the same level as the rich. To maintain this equality it is necessary that the condition of the litigants in that respect be taken into consideration; for it would be a poor system that would require the impossible as a condition of justice. This defense is founded upon the fact that Mrs. Burner “stood by” during the entire period of occupation by Mr. Marr and his successors in title, and possession, and saw them, without complaint or interference, expend large sums of money by which the value of the land has been greatly increased. The principal specification dwelt upon by respondent is that in his work connected with the promotion and construction of railways, which has been otherwise profitable to him, he has brought these commercial conveniences so close to this land as to increase its value greatly; and counsel dwell upon the injustice of permitting Mrs. Lewis to classify herself with the beneficiaries of his success. She should be satisfied he thinks with the small fraction of her little investment which enabled her to get back to her friends empty handed, leaving the fruits of the future prosperity of the country to those able to remain and take care of their own.

When necessity required that Mrs. Lewis should leave New Madrid County she did all she could to leave her little interests in safety. She procured a tenant for her land at $40 per year, paid her taxes and employed a lawyer to look after it, to whom., we must assume, she paid his reasonable charge for the service; and this assumption is supported by the fact that he' afterward sent her $18 from the rental. Her condition afforded,no evidence that she could return to look after it. It was a good riddance to those who afterward intervened in their own interest. In shaking her off the lawyer who had promised to take care of her wrote her that he was about to bring suit against her land. On receiving this information she naturally gave up everything as lost. She wrote to him, but received no answer. In bringing suit he was so considerate as to leave her and her children out, so that courtesy was satisfied without sending her a copy of the notice. This, we must assume from the scant evidence before us, was the same suit in which the judgment, void ais to her, and which now furnishes the foundation on which respondent’s paper title’ rests, was entered. She had been successfully eliminated from the scene of action. Her poverty necessarily eliminated her as a disturbing element in the subsequent proceedings, which moved tranquilly forward to the consummation in which respondent’s claim consists. He now complains that she made no active effort to assist him. He needed no notice, for the facts were plainly indicated in every phase of the transaction which constituted his claim. To hold that this woman should have looked from her Illinois home to New Madrid County and observed the plight of respondent and protected him in this purchase, when all the instrumentalities of self-protection lay at his hand, would be an indulgence in legal fiction entirely disconnected from any principle of law or justice. It is impossible to read this record without surprise that during thirty-five years devoted to the handling of this title none of the parties interested have recognized the propriety of seeking the aid of Mrs. Burner, to protect it.

Evidence of Payment of Taxes. VII. One other matter has been so strenuously urged as to call for notice. Notwithstanding the stipulation at the trial fixed August 21, 1876, as the date of the origin of respondent’s claim and the beginning of the neglect of Mrs. Burner to pay the taxes, there is evidence that the trial court will be presumed to have considered that that neglect began as early as 1873. We do not so understand the record. The contention is founded upon the testimony of one Dawson, who was collector from 1873 to 1876, who now has the tax books which constituted his process for the collections of those years; that it was his custom to mark “paid” opposite the charges as they were paid, and that word does not appear opposite the several entries as to this land until 1876, when Mr. Marr paid the taxes. He refused to state his belief that they were not paid and he was right in so refusing, because in that case it would have been his duty to return them as delinquent and collect them, and the-fact of their delinquency would be a public record of the county. He says that Mir. Marr paid the taxes of 1876. If the land stood charged with previous taxes he could only clear it by.paying them also. We do not think that, in the absence of explanation, Mr.. Dawson’s testimony constitutes any evidence of the non-payment of these taxes. We think that in the absence of such 'explanation the only inference that can be drawn from the facts so stated is that they were paid, and that is evidently the inference which Mr. Dawson himself drew.

We think that complete justice can be done between the parties in a trial of this case in accordance with tlie principles herein stated. We accordingly reverse the judgment of the trial court, and .remand the cause for further proceedings.

Bailey, G., concurs.

PER CURIAM: — The foregoing opinion by Brown, C., is adopted by the Court in Banc as the opinion of the court.

Woodson, J., concurs, Graves, G. J., concurs in a separate opinion in which Williams, Woodson, Blair and Walker, JJ., 'concur. Faris, J., dissents in opinion filed, in which Bond, J., concurs.

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Concurrence Opinion

GRAVES, C. J.

Suit in Equity. (concurring) — This case had been a source of trouble to me since its resubmission in Banc. The learned dissent of our brother Faris has been the cause of my reinvestigating the record. I cannot conclude that this case is a case at law. The answer in this ease carried it to the equity side of the court. Going to that answer we find a plea of estoppel in pais, which under some circumstances might be equitable. But leaving out this portion of the answer there is an attempted plea for the reformation of a mortgage (the mortgage from Lewis to Marr) and in the trial of the ease evidence was admitted on that plea. But leaving this question out,' the answer after detailing all the facts asks the court to cancel of record the deed of Mrs. Burner to Lewis, the plaintiff, as a cloud upon defendant’s title,.which is an affirmative equitable defense, and what is more, the judgment (see short-form trahseript filed here) actually grants this equitable relief and cancels of record this deed because a cloud on defendant’s title. The case is therefore one in equity, both, by the pleadings and the judgment. Our learned Commissioner did not state the facts as fully as might have been done and our learned brother was no doubt misled thereby.

Date of Filing. II. The case being in equity the first matter of import is the question whether or not this was the homestead in Lewis’s lifetime. The evidence is all one way on this question. He and his family, consisting of a wife and two children, lived there from January, 1872, until June, 1873, when he died. The next question is whether or not the deed to this homestead was filed for record before the debt to Marr was created. Upon this point I fully concur with the commissioner. The case being in equity we have the right to review this evidence. It was shown that in the -handwriting of the Recorder of Deeds was a written memorandum that the deed was filed in the Recorder’s office on January 6, 1872. This is what might be called the file mark of the officer on the instrument when presented for filing and record. The Index Record and the cross record thereof both show the same fact, and the only thing contra is the certificate of the Recorder made by the Deputy Recorder, which certificate says the deed was filed for record and recorded on July 19, 1872. On the other hand the Deputy Recorder was a witness, and when being shown all these memoranda, and asked how the body of this certificate happened to have the date July 19, 1872, he said he didn’t know unless it was a mistake. To my mind it is clear. The deed was evidently filed January 6, 1872, but- the deed not actually recorded until July 19, and when the deputy made this certificate on the deed he made it as of that date. I am- satisfied that we should in all good conscience hold that this deed was filed for record January 6, 1872. How much further trouble this holding portends in this, a cause in equity, remains to be seen.

But going a bit further on the proof as to the filing of this deed. It must be remembered that it is the filing of this deed with the Recorder, that fixes the homestead right as against debts. [1 Wagner’s Statutes, sec. 7, p. 698.] It is not the actual record of the deed, but the actual “filing” which fixes the rights. When a deed is presented to and left with a Recorder of Deeds for record, it is “filed” for record, whether there is a mark made thereon or not. The neglect of the officer to actually file or record the same could not defeat the rights of a party who had performed his full duty by actually leaving the deed with the recorder for record. We suggest these things, because they show the character of proof which' may be made of this act of “filing.” I have no doubt that if the Recorder had willfully or negligently failed to file and record a deed to a homestead, oral proof of the fact of the deposit of the deed for record would be admissible. Any competent evidence to show this deposit of the deed for record should be heard. But in this case we have the actual file mark of the Recorder, signed by the Recorder (the index and cross index), required by law to be kept, showing the date of filing, and nothing contra but the certificate of record, which as to the date of filing is evidently a clerical error.

III. If the deed to this homestead was filed on January 6th, as I feel that we must hold, the defendant has no valid paper title. Upon the death of Lewis the title passed in fee to his widow (subject of course to the rights of the children, and one of them is dead and the other long since of age), and her deed to the plaintiff carried to plaintiff the legal title in fee.

We. then come to the defense of estoppel in pais. No act constituting the chain of evidence on this question occurred until long after Mrs. Lewis had remarried in 1875, and her husband became entitled to the possession .of these lands. This status was not disturbed by the Married Woman’s Act. [Leete v. State Bank, 115 Mo. 184.] This right of possession remained with the husband until his death in 1911. In addition to this, knowledge of these acts was not brought home to the woman prior to the death of the husband. The question is, can a married woman, who is not even entitled to sue for possession, be estopped by acts in pais, and which acts have not been brought to her knowledge? Simplifying the question, can a married woman with no rights of possession and no rights to sue for possession, be estopped by acts in pais¶ "We think not, and in so answering we do not consider the question of her knowledge or want of knowledge of said acts. Estoppel proceeds upon the theory that the party had failed to act, when he should have acted. In this ease the woman could not act. She could not sue for possession. Her hands were tied by the law, and it would he am injustice, to say that she should he estopped by a state of facts which she could not prevent. She could neither sue for the possession nor prevent acts against the possession. Her marriage was prior to the Married Woman’s Act, and upon marriage the rights of possession and all incidents thereto passed to the husband, and in such possession he had a vested right, which was not disturbed by the later Married Woman’s Act. There is nothing in the plea of estoppel in this case, however harsh the case may be for defendant.

IV. Nor is-there force in the contention of the defendant as to the thirty-year Statute of Limitations, section 1884, Revised Statutes 1909. This is an affirmative defense and the burden of proof is on defendant. There is a dispute about the payment of taxes in 1873. Dawson, the collector, says the hooks show that the taxes were not paid for the years 1873, 1874 and 1875. The widow swears that she paid the taxes for the year before she left the State and that she rented the land for $40 per year to a tenant, whom she left in possession, and that Mr. Hatcher, who was attending to her business for her, sent her $18 out of the rent and she thought he was paying the taxes. But we may pass this matter by, and concede that the taxes were not paid. This thirty-year statute does not begin to run until the party quits the possession and quits paying taxes. In other words, as long as the widow in person or by her tenant was in possession, the mere failure to pay taxes did not start the statute to run. Her possession continued until after her marriage, or at least the defendant did not show her out of possession until the year 1876, when Marr took possession. The defendant’s evidence fails to show that the widow was ont of possession prior to December, 1876. The statute, therefore, did not begin to run during the time she was feme sole, and could not run when she became covert, as we shall undertake to show.-

Mrs. Lewis married Burner in August, 1875. Upon this marriage, the law then separated this whole estate into two estates, (1) the possessory, or life estate of the husband, and (2) the remainder in the wife. The life estate carried with it the duty to pay taxes. This duty was hot imposed by law upon the remainderman.

In the case of Hall v. French, 165 Mo. l. c. 442, a case where by deed, the whole estate had been carved into two estates, i. e. one for life and one in remainder, this court held that the thirty-year Statute of Limitations could not apply, and to apply it would be to deprive the remainderman of his property without due process of law. Not only so, but we held that this division of the whole estate into two estates might be by operation of law (as in the instant case) as well as by deed. That case says that “Section 4268, Revised Statutes 1899, has no application to the case at bar,” and it has never been overruled. The writer had occasion to review this statute and our previous holdings in DeHatre v. Edmonds, 200 Mo. l. c. 280, and preceding pages. We distinguished the Hall-French case, supra, from the DeHatre case, but expressly recognized the doctrines of the Hall-French case. We thus said: “In our judgment if the two estates had been carved from the whole, either by deed or operation of lato, prior to the beginning of the adverse possession, and the payment of taxes, then section 4268 does not apply, except as to the possessory estate. In other words, does not apply to the remainderman. But on the other hand, if the adverse possession and the payment of taxes began prior to the carving out of the two estates from the whole, then such statute does apply, and as to the- whole estate.”

In the instant ease the two estates were created by operation of law before there was any delinquency in the possession. The duty to pay future taxes was upon the life tenant and not upon the remainderman. The thirty-year Statute of Limitations does not apply to the remainderman, as was expressly ruled in both of these cases. I see no good reason to change the rule. I therefore concur in the opinion of the learned Commissioner in so far as it does not conflict with these views, and concur in the result of his opinion.

Williams, Woodson, Blair and Walker, JJ., concur in these views.

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Dissenting Opinion

FARIS, J.

(dissenting) — I find myself unable to concur with the views of our learned Commissioner in this cause.

It is elemental, I premise, that this is either an action at law, or it- is an action in equity. If it is an action in equity, the doctrine of laches operating on an abandonment, with scienter of all the facts, existing through a period of 38 years, coupled with the making of vast and valuable improvements and an increase in value of the premises in dispute from $200 to $18,000 would seem to have had the .effect of extinguishing the title of plaintiff. [Shelton v. Horrell, 232 Mo. 358.] If it is an action at law, then the findings of the learned trial court on disputed questions of fact in a jury-waived case are conclusive on this court when such findings are supported by any substantial evidence (Woods v. Johnson, 264 Mo. l. c. 293; Hatton v. St. Louis, 264 Mo. 634; In re Lankford’s Estate, ante, p. 1; Chilton v. Nickey, 261 Mo. 232), and in any such case, absent error in admitting evidence, or in giving or in refusing declarations of law, the case must be affirmed.

Equitable Defenses. There is scant doubt that the case is one at law; . so we need not concern ourselves as to the laches contended for. It was a contest between legal titles solely, and no equitable relief- was decreed by the judgment nisi. Plaintiff asserted no equities and had no equities to establish. He either has a legal title, or he has no title whatever. Defendant either has a legal title by virtue of the Statute of Limitations, or a title deraigned through the sale to his mesne grantor under orders of the prohate court, or he has no title of any kind. .While defendant- in his answer prayed the court nisi to cancel as' an alleged cloud upon defendant’s title, the deed from plaintiff’s mother to the plaintiff, being the identical conveyance through which the latter claimed the legal title to the land in dispute, such a mere empty claim in the form of equity is not sufficient to invoke that jurisdiction. Defendant, in order to entitle him to equitable relief and convert the action into one sounding in equity, must plead some defense, or some claim to affirmative relief, bottomed on some one of the well-known grounds upon which equity assumes jurisdiction. Here the deed of which defendant sought cancellation was merely a conveyance in plaintiff’s chain of title, which evidenced a claim of title adverse to that asserted by defendant. The only-grounds urged for such cancellation were legal grounds, bottomed upon the contention, in the-last analysis, that defendant’s legal title from the agreed common source is better than that of plaintiff. It is elementary that equity will not assume jurisdiction under these conditions. If equity could be made to take jurisdiction under such facts, every action in ejectment can willy-nilly be thrown into equity by the simple expedient of praying relief (by way of cancellation) against all conveyances evidencing the adverse chain of title.

It is also true that defendant’s answer contains abortive and wholly irrelevant recitals, touching a mortgage on the land in controversy. This mortgage it is averred was executed in 1872, but it contained an error in. the description of the land. The pertinent recitals in the answer, as likewise does the evidence offered upon the trial, show conclusively that, this mortgage is not in defendant’s chain of title; that he is not claiming under it and could not claim under it if he desired to do so. Foreclosure, subrogation, reformation and the lien of it, if any there ever was, have all been outlawed by the Statute of Limitations for almost a quarter of a century. Defendant merely recites, seemingly as a sort of sentimental defense, the fact that, a mortgage was attempted to be executed, but such execution failed on account of an error in describing the land. He neither recites facts warranting reformation or foreclosure or subrogation, nor does he pray for any such relief, nor was he upon the facts averred entitled to any such relief, if he had prayed for it.

Questions of Fact. Granting, at least for the argument’s sake, that defendant could .not have been heard to complain if the trial court had seen fit to regard the action as one converted into equity by wholly insufficient and irrelevant cross-bills, it is enough to say upon this head, that it was tried below as a suit at law. The learned court nisi obviously so regarded it because he gave numerous declarations of law. Learned counsel for plaintiff obviously so regarded it below and so regard it here. For they requested and the court gave many declarations of law upon the trial, and the only errors they have assigned here are bottomed upon the court’s giving alleged bad and refusing good declarations of law. We must assume that both the court nisi and counsel are not unaware of the settled rule that declarations of law and instructions have no place in an equity suit. No citations are necessary, for the cases are legion, wherein we have ruled that this court upon an appeal is irrevocably bound by the theory upon which a case is tried below. So, in this case there is no room for the doctrine of’ laches. [Chilton v. Nickey, supra; Leslie v. Carter, 240 Mo. 552; Troll v. St. Louis, 257 Mo. 626; Stanton v. Thompson, 234 Mo. 7.]

Plaintiff, being cast nisi, had cast on him here the burden of proving harmful error, before we are authorized to reverse the case.

The only errors assigned or complained of, are three, all having reference to the alleged erroneous modification of one instruction, and to the refusal to give two other instructions, which plaintiff offered nisi.

Prior Debt. I. The court modified an instruction prepared and offered by plaintiff by adding thereto the words “and the court declares the Marr debt to be a lien of some kind, within the meaning . of this instruction. ’ ’ This instruction as modified, with the modification italicized, reads thus:

“And the court further declares as a matter of law that, under the homestead law in force in the year 1873, the homestead so vested in such widow and children was not subject to the payment of the debts of said Stephen Lewis, unless legally charged thereon in his lifetime, and.that these words mean that there must have been a lien of some kind imposed upon the homestead during the lifetime of said Stephen Lewis, and the court declares the Marr debt to be a ‘lien of some hind’ within the meaning of this instruction-”

Was this addendum reversible error? I think not. If the court found (a) that Stephen Lewis filed his deed to this alleged homestead on July 19, 1872, and (b) gave his note for $110 to Marr for the purchase price of a horse on January 20, 1872, or at any time prior to filing his deed for record, then the debt for which the land was sold was a debt contracted before the land became a homestead, and one for which such homestead could be sold. [Sec. 7, p. 698, 1 Wagner’s Stat. 1872; Acreback v. Myer, 165 Mo. l. c. 685; Barton v. Walker, 165 Mo. l. c. 30; Payne v. Fraley, 165 Mo. 191; Keeline v. Sealy, 257 Mo. 498; Sperry v. Cook, 247 Mo. 132.] But citations of authorities are stale and unprofitable, for the statute in force in the year 1872, at the identical time at which this homestead was acquired, read thus:

“Such homestead shall be subjéct to attachment and levy of execution upon all causes of action existing at the time of the acquiring such homestead, except ais herein otherwise provided; and, for this purpose, such time shall be the date of the filing in the proper office for the records of deeds, the deed of such homestead, and (in case of existing estates) such homestead shall not be subject to attachment or levy of execution upon any liability hereafter created.” [1 Wag. Statutes, sec. 7, p'. 698.]

As the learned trial court might well have found, and evidently, as he did find, the land was sold by the administrator under an order of the probate court to pay the debt due to Marr, which debt was contracted on the 20th day of January, 1872, some six months before the deed was recorded. This land was not sold under the defective mortgage given to Marr by Stephen Lewis, in the latter’s lifetime. Obviously this was because the erroneous description of the land would have made a sale under this mortgage absolutely void, unless and until the mortgage had been reformed in equity. Marr, the owner of the note which evidenced the above debt, obtained judgment thereon in the circuit court, in March, 1875, and likewise procured in the said, circuit court a decree of foreclosure of this defective mortgage. Subsequently, and in May, 1875, Marr filed this judgment in the probate court; had it classified, and thereon later procured an order of sale of the land to pay said judgment debt;-following which in due course and duly, as the record discloses, the land was sold, and being stricken off to Marr, a proper administrator’s deed'was made to him, which deed is in defendant’s chain of title. The void mortgage, the judgment of the circuit court, and the abortive decree of foreclosure performed no office here, save and except that they identify beyond dispute the debt for which the land was sold, as being one made on-January 20, 1872.

From this it is manifest that the instruction set out above, and which the court modified, was, as offered by plaintiff, absolutely erroneous, for that it did not state the true facts. For when the record is read it appears beyond dispute that there is no mortgage, or mortgage lien in the defendant’s chain of title. When the instruction, as it was offered by plaintiff, mentions a lien, it seemingly attempted in a .far-fetched way to follow the then provisions of section 5, p. 698, of Wagner’s Statutes of 1872 (although said section does not contain the word “lien”); whereas the record was utterly barren of facts to bring the ease within the purview of the above section. And at the same time this original instruction ignored the provisions of section 7, p. 698, of Wagner’s Statutes, when the record was full of facts to bring it within the purview of the prior existing debt provision of the latter section, and -when such facts were the only facts in the record referring to a debt of any sort.

While therefore the learned trial court would have been justified in refusing this instruction outright, he chose to modify it, and being misled by the plaintiff’s inaccurate use of the word “lien,” instead' of the word “debt,” he himself followed this inaccuracy and used in his modification thereof the technical word “lien,” where he should, have used the broader term ‘ ‘ debt. ’ ’ He had the right both under the law and the facts to consider whether the note made to Marr, on January 20, 1872, was such a prior debt as under the provisions of section 7 of Wagner’s Statutes supra, deferred till its payment, the vesting of a homestead in the widow. So, I am of the opinion that since this modification, while technically inaccurate, was induced by plaintiff’s own error, and since it can in no way alter or change the result in this case, under the beneficent provisions of section 2082, Revised Statutes 1909, it is not reversible error.

Upon both of the above controlling questions of fact, especially the first (there is little dispute, and no place for any dispute as to the second), there was conflict in the testimony. No one can assert in the light of this record that there is not substantial testimony to uphold the view manifestly held by the trial court, that the Marr note was a debt within the provisions of said section 7 of Wagner’s Statutes. The law is settled, I apprehend, that in a case at law where no instructions are asked or given, or where those which are refused were either properly refused for inherent defects, or because they turned upon disputed questions of fact, the finding of the trial court imports precisely the same verity as a jury’s verdict. [Woods v. Johnson, supra; Hatton v. St. Louis, supra.] The modification of the above instruction (the slight technical inaccuracy being disposed of) was warranted or unwarranted, according as the trial court may have found the two questions of fact set out above.

II. The trial court refused to give the below instructions requested by plaintiff, to-wit:

Homestead Prior Debt. “2. The court further declares the law to be that, the vesting of a homestead in the widow and minor children as set out in the foregoing declaration No. 1, is not dependent on the filing in proper office for the record of deeds the deed of such homestead, and that, as to them, it is immaterial whether such deed be so deposited before or after the incurring of a debt by the husband subsequently to the acquiring of such homestead; that -if the court shall find from the evidence in this cause that Stephen Lewis became indebted to John W. Marr by note on the 20th day of January, 1872, the homestead of the widow and children vested in them by the death of Stephen Lewis on the 5th day of April, 1873, was not subject to sale for the payment of such debt, although the court may further find that the deed to such homestead was not filed for record until July 19, 1872.

“3. The defendant having offered in evidence as the source of his title, an administrator’s deed, dated August 21, 1876, from J. C. Stewart, as the administrator of the estate of Stephen Lewis, deceased, to John W. Marr, made in pursuance of an order of sale of the probate court for the payment of debts of the said deceased, the court declares as a matter of law that it was incumbent on the defendant, for the purpose of showing jurisdiction in the probate court to order the. sale of the homestead of the widow and children of Stephen Lewis, to establish in this cause that the debt for the payment of which such sale was so ordered was incurred by said Lewis prior to his acquiring such homestead, and defendant having failed to offer any evidence proving or tending to prove such fact, said administrator’s deed is insufficient and ineffectual to show title in John W. Marr to the premises in controversy.”

Instruction 2, supra, was palpably erroneous, unless both the statute which we quote and the written construction- thereof by this court have been wrong for forty-five years (Sec. 7, p. 698, vol. 1, Wag. Stat. 1872; Barton v. Walker, 165 Mo. l. c. 30; Payne v. Fraley, 165 Mo. 191; Acreback v. Myer, 165 Mo. 685; Tennent v. Pruitt, 94 Mo. 145; Berry v. Ewing, 91 Mo. 395; Clark v. Thias, 173 Mo. 628; O’Shea v. Payne, 81 Mo. 516; Creath v. Dale, 69 Mo. 41); hence, it was properly refused and error cannot be bottomed on such refusal. Indeed, appellant in his brief does not question the law on this point; he merely takes issue with the facts. But these facts, as we’have seen, were for the trial court.

In substance instruction 2 declares that the homestead vested in the widow free from the liability of being sold for a debt contracted by the husband in his lifetime and prior to the filing for record of the deed of conveyance to the husband of the land claimed as a homestead. It was held otherwise in Vermont before we adopted the law of that State on homestead (Simonds v. Powers, 28 Vt. 354; Perrin v. Sargeant, 33 Vt. 84; White v. White, 63 Vt. 577), and we have always followed the same view, which view is directly in the face of the refused instruction, as the refused instruction is directly in the face of the statute then (in 1872) and now in force. [Sec. 7, p. 698, vol. 1, Wag. Statutes; Sec. 6711, R. S. 1909.] It follows that no reversible error can be bottomed on the refusal to give instruction 2.

Recording Deed. III. Coming to the only other ground of alleged error found in the case or- urged in the brief, it will be seen that instruction 3, which the court refused to give for the plaintiff (in addition to the fact that it is in diametrical conflict with instruction 2, supra), likewise depends for itso goodness upon a sharply disputed question of fact. If the court nisi found that there was evidence tending to prove that a debt to Marr had been incurred before Stephen Lewis filed his deed for record, then he was right in refusing to give this instruction. Upon this phase we have seen that the trial court, on the question of resolving this contradiction, sat as a jury sits; hence, we cannot disturb his finding of facts; and since his finding of facts dominates wholly the question of error vel non for refusing this instruction, his action in refusing it was not error. Even if this were not true, we have already seen that refused instruction 2 is diametrically in conflict with refused instruction 3. If the date of the filing for record of the deed of conveyance to a homestead is the date of acquiring such homestead, then this instruction was properly refused on this ground alone. That such date is controlling, all of the authorities agree, and our statute itself provides. [Sec. 7, p. 698, Vol. 1, "Wag. Statutes, and cases cited supra; Shindler v. Givens, 63 Mo. 394; Osborne & Co. v. Evans, 185 Mo. 509; Sec. 6711, R. S. 1909.]

The above discussion comprehends all of the errors which are urged, or which can be urged upon this record for a reversal thereof. I submit that they are insufficient, and that this case ought to be affirmed.

In passing, I pause to observe that there is much said in the majority opinion with'which I do not agree, touching the so-called thirty-years Statute of Limitations, and of the comparative probative weight of the index of deeds, when contradicted by the solemn sealed certificate of' record made by the Recorder, both upon the record and upon the deed itself. I think our learned Commissioner’s conclusions upon the former point are in divers particulars opposed to what has been said by this court in the well considered cases of Abeles v. Pillman, 261 Mo. 359; Collins v. Pease, 146 Mo. l. c. 139; Rollins v. McIntire, 87 Mo. 496; DeHatre v. Edmonds, 200 Mo. 246; Land & Imp. Co. v. Epright, 265 Mo. 210; Campbell v. Greer, 209 Mo. 199, and that his views upon the latter point are not in consonance with what has been said by this court in the case of Bishop v. Schneider, 46 Mo. l. c. 479, and by Division Two of this court in Keyes v. Munroe, 266 Mo. l. c. 116, and by the St. Louis Court of Appeals in the case of Marble Co. v. Ragsdale, 74 Mo. App. 42, but since the views which I express above, and which I am constrained to take of the law of the case, fully dispose of it, I need not take up further space than merely to record the fact of my non-concurrence in the behalves mentioned.

Bond, J., concurs in these views.