*1 DüRhаm, Woodside should have been arrested. The information included its terms within proper charge grand larceny all the elements of a and the court ;of might jury should have instructed the convict that crime acquittal robbery. and should have directed an of the'crime of judgment remanded,' is reversed and the cause for retrial. Walker, J., White, J., being opinion P. dubitante. There case is transferred to Court en Banc. :
PER foregoing opinion Blair, J., in Division CURIAM: The adopted opinion Two is as the Court concur, en Banc. All ex- cept White, J., who dissents.
Leigh Woodside, B. Appellant, v. Bertha 772. S. W. Durham. Banc, May 23,
Court en by Estoppel. 1. TAX DEED: Suit Owner Initials: Where the name, is, as recorded shows the owner’s full his first or Christian name surname, brought against and his him'only by and the tax suit is initials bis surname, only by publication him, and name and he is served to not directed' record, initials, which he by".hii's has taken title but judgment, by default, void, rendered and the deed made sheriff’s pursuance thereto is likewise void and can in a be shown to be collateral proceeding; claiming estopped and neither he nor those under him at- validity judgment by.the judgment tack and' fact that after conveyed by prefixing only sale he the same land his his initials to suri signature [Overruling Mosely Reily, Í24.] name or thereto. Humphreys: Estoppel. 2. -:-: A. Willard recorded Where the only Humphreys pro- deed showed title in A. Willard and in a tax suit the publication by' cess was constructive service order of directed -to A. W: Humphreys, judgment against'A. Humphreys, by default,- rendered W. thereunder, void; body a sale of the land were and a later deed which in its Humphreys, acknowledgment him A. Willard and certificate described as signed estop Humphreys, in title did not him or his successor A. W. void, proceeding judgment attacking deed as in collateral sheriff’s - state, title, he, being a resident of’ another determine since guilty one or its officers.or act or conduct which the State of no acted, claiming and sale relied arid to their the void title under judgment. expense, prior injury, the rendition of the inconvenience or Change estoppel the al- To constitute facts of Situation. 3. ESTOPPEL: leged by rule, upon or in must, general constituting plea relied as a been situation, change plea his party him to making the caused reliance. Further- way loss reason of suffer detriment some been, estoppel equitable must have there more, to constitute order facts, but must'have representation concealment only a false and acted and believed knowingly one to be made estoppel. Title in One. Partners: Tax- Sale: at Purchasers the LANDS: OF 4. SALE Where by direct a section east half of owner became [April Term, Court Vol. conveyances patentee, alleged mesne from the said half was sold partner half was judgment against predecessor title, under a void and the alleged pаrtner, sold under a valid to him and his conveyed alleged thereafter his half interest said west half to said partner, ranty that sheriff’s partner conveyed thereupon and said war- the whole section the only predecessor partnership being deed to defendant’s *2 plaintiff alleged partner bought together and such west half at the by taxes, plaintiff, for sale is a execut- there no basis for claim that - ing leged partner, delivering conveying and a to al- the west half deed warranty partner conveying authorized such a deed to execute thereby deny plaintiff the whole section and that is title to warranty of defendant validity to the east half to- deed or assail under so, judgment; particularly of the void tax no where there any predecessor evidence that her relied act or defendant or in title plaintiff, injured change conduct or situations that either was or caused to upon plaintiff’s or to suffer loss reliance or conduct. acts acquires Against Stranger purchaser TAX A no JUDGMENT: to Title. by judgment against title. title The under a defendant who had no sale a grantee by warranty patentee previously a deed a who had recorded conveyed another, judgment title, acquired a a no sheriff’s under to grantee purchaser. for taxes to the such carried no title Judgment: A 6. COLOR OF TITLE: Deed Void Limitations. sheriff’s title to the land described deed under a void for tаxes is color of therein, ripens ab- into and adverse for ten thereunder n solute title. Ownership. -: of Part: Usual Acts of -: 7. In Possession .-: section, a has quiet east of a to which suit to the half to title, perfect paper for actually chaser conveyed acres void was the sheriff under a but which sold half, though taxes, attempting said east the sheriff’s deed title; pur- title, conveyed and where the is color of void half, thereafter of the west named in said deed the owner and. forty grantee single grantee, and said fenced to a the whole section it, twenty-five fifteen acres of of the west half cultivated title, by themselves their years, either or successors either he continuously possession, licensees, been in such since tenants or their exercising ownership, such usual acts section and the whole whole, whole, conveyances on taxes recorded numerous paying half, plaintiff, occasionally cutting who from the east timber thereto, nor exercised claim paid east half the- Statute taxes on. neither barred asserting ownership to ten-year of Limitations east half. payment Paying taxes Taxes. --: —-: 8. for. successors -:. years, by grantee an thirty-one invalid consecutive 1919), (Sec. 1309,. act is, R. S. usual the statute tract. ownership the -whole over 362, Possession, J., 2 Section Juris-Cyc. C. Adverse Corpus References: Estoppel, 43; p. 276, n. 1490,.-n. 507, p. Section 59.. 67; n. p. 21 C. n. Sectiоn Cyc., Taxation, p. 122, p. J., n. 12. Barton, Judge. W. E. Court.—Hon. from Dent Appeal Circuit Affirmed. Durham. Woodside .appellant. Monegan for Woodside
Gratia reason suit maintain estopped to not (1) Plaintiff is money part of Callahan furnished may have that he fact in his no title took Plaintiff land. purchase with which , any know not Balch, did the trade nothing with to do name* whatever, Plaintiff made (a) nothing Balch it, thing about section, which west half quit-claim deed to responsibil taking plaintiff was Balch that the notice to matter, only operate (b) estoppel can An ity whatever thereon another, relies injured the act of party- of. a who favor way to suffer in some change his him1to situation and which'caused City, Kansas Wood v. reliance. loss, reason of-such detriment G-roeschner, 76; Lindsay, Kline Thompson v. 311;. 162 Mo. constitute In Mo. 429. order 613; Guffey ’Reilley, representation only a false- must be not equitable estoppel, there an knowingly been made must have of the facts or concealment upon by and acted the one estopped and one to be. believed *3 (c) 220 231. Williamson, Mo. estoppel. Freeland v. taking a'quit-claim by under deed and The claims defendant. responsibility for the she assumed her own quit-claim deed nothing just grantor-had her agreeing to.take what title 225; Cable, 208 Kellar, 171 v. Mo. more. Chew v. Mo. Weissenfelo by plaintiff is (2) the1 defendant that the It is also claimed 534. asserting that the tax title is bad on account fact from ” Humphreys by his “A. W. the title was sued initials because by Humphreys a which claims emanated from Humphreys.” signed “A. We understand that the rule estab W. Moseley v. 126 Reily, of was overruled lished -the case Mo.
the,
(a)
18
of
.Court
630; Houx v.
(1) against The tax W. Humphreys good sale A. Humphreys many Willard. under the of this decisions court. Peake, 645; Brown 177 S. W. White v. 236 Gramley, Mo. 127; Reilley, S. Mosely 124; W. Stephenson Brown, ’174 Showing S.. W. 414. the real name a defendant tax suit to. be different from that him used in his -land, deed to the . validity does not effect the proceedings Shuck v. Moore, ' S. (-2). Mo. 649. conveyed whole section has been W- as one tract from the time was owned appellant in con 1893; tinuously, eleven times, till the vested in respondent. Under such circumstances it was one tract and is con structively extended over the whole the usual and customary ownership. acts of S'ec. 1309, 1919; 235; R. S. 2-C. J. Schofield v. & (a) H. L. M. Co., contiguous S. W. 61. A body of land con veyed by general one deed under one description' constitutes one- *4 possession and part tract actual of give grantee will constructive possession of all. Section 21 was 2 'tract. C. J. 238; .one Heinerman v., Bennett, 113; v. Merifield, Herbst 133 272; Schоfield v. Harrison L. & Co.,M. 187 ,(b) S. W. 61. Possession tenant is 2 of the possession (c) owner. C. J. 246. Possession of: the part the two tenants and the of exercise acts of ownership by respondent through husband, her Wm. Durham, required for the period, possession constitutes constructive of the tract. Durham’s ownership claim of of all of Section was notorious. Sec. S, (d) R. 1919. . The same rule as to possession constructive ap plies thirty-year to the of Statute Limitation. Pharis' v. Bayless, (3) Mo. 123. being One-who defendant in a tax sale accepts .surplus money the arising payment after of taxes and- costs, Is Wood,side v. Durham. 1927} Hartman, v. Horns- invalidity of the sale. asserting-
estopped from
The acts
northwest half of quarter. the' southeast ¡quarter and of. the northeast 21* County, Missouri. Township north, Range west, Dent . plaintiff, alleging conventional, petition, is. filed on October and, simple controversy he is in fee the land the owner plaintiff prays, claiming thereto, wherefore defendant title estate-, bearing .real title to said court hear evidence rights, parties therein, and determine the claims and interests of legal adjudged true, absolute owner be to.be setting up, claiming, and that defendant debarred thereof , -, any fight, title interest therein. The answer is.as-follows:. .to; day plain- “Now on this comes the and for defendant answer lands, petition admits that has a -record she deed of de- tiff’s scribed in plaintiff’s petition claiming and that she title to the lands. said answering every-other
“Further the defendant each and denies allegation plaintiff’s petition. answering says
“Further plaintiff’s the defendant that the cause action, if behalf, ever existed accrued -mox-ethan.ten years prior filing the date petition of his plain that the title, asserting any right, tiff debarred from or interest, .in..or to ten-year land,, said reason Statute-of Limitations of the defendant, State Missouri. and those under whom she T^-M title, claims have been in the lawful occupancy possession- plaintiff’s petition lands described color title said premises, thereto, plain exclusive and hostile to faith, tiff’s and that her- claim of title has been good made in good believing that she had a title to lands and that her occu pation actual, peaceable, continuous, unin terrupted, notorious and right hostile to other .or title to said lands, prior period for a of ten to the commencement-of action, during all that time the defendant claimed title to color, lands* duly оf title deeds recorded the deed County, records Dent Missouri, over that of said lands *5 oe Yol. Court the has exercised 'she the defendant possession of in the actual usually exercised over ownership as are customary of acts usual and lands the said vicinity where land kind of that character of entire owner the That the defendant are located.' section constitutes west, said and that the north, Range Township 32 of land to the conveyed tract as one and has been land one tract of claims title defendant the those under whom defendant prior the entrance of of date tract of land conveyed as one the defendant thereof, and possession into the the defendant and continuous notorious, hostile,' adverse actual, open, the has had years than of land more ten of tract for portion said possession of petition, and she has exer filing plaintiff’s prior of to the date over the customary ownership acts of remainder and: cised usual the generally during period that are the said of land of said tract the vicinity character of land in where that kind and over exercised protected has the said lands located, and that she are lands paid performed every thereon and against trespassers, taxes other ownership. act of that the to all said Section further avers title
“The defеndant more than "emanated from the United States Government ten prior filing plaintiff’s petition, date of the and that possession portion defendant been in the actual lawful of a year prior filing of said lands one 'more than to the date of the petition plaintiff’s deeds, duly under color title recorded County, the deed records of Dent and under which she was claiming lands, to said title and that the defendant has been in the portion actual and lawful a-of of the lands described in plaintiff’s petition than year for more prior to the time of the filing plaintiff’s petition of. claiming the same under color exercising portion over that title not in possession land usual customary ownership acts of exercised over that kind and character of land in vicinity where said located, and that neither plaintiff, any nor person or persons, through by, or under whom they claim, might claim, title, any person nor persons by, through plaintiff, or under the might who claiming by, through or the plaintiff, been in the actual possession of the said lands for more thirty-one years than prior to the date filing plaintiff’s petition, nor have during period paid plaintiff’s taxes thereon. That cause of action, if had, accrued more than thirty-one years prior to filing date petition and he is debarred asserting or claiming ¿any right, title or interest in or to said lands. ' '“Defendant further that on states day the 27th of June, 1893, John' R. plaintiff and the partners were engaged in buying business of and selling tax lands, that here- *6 v. Durham. Woodside all lands taken to of said were and partner the title in was silenf title for him- in and held John R. Callahan the name of the said in plaintiff’s described plaintiff, and and that the lands the the. self said John Calla- purchased by the R. lands, and were petition, other money- the plaintiff paid purchase with. the at tax and han sales said R. and John agreement between himself the understanding and in the name of the said John should taken that the title be Callahan sold thereof proceeds when the lands the were R. Callahan and were John R. Callahan. plaintiff the and the said to divided between R. Callahan day June, the said John on the said 27th That plaintiff’s petition Balch, H. 0. sold the said lands described warranty H. made, and the said Balch and executed delivered to fully describing paid the Balch said lands said H. 0. for and plain- and divided proceeds said lands the thereof were between the plaintiff tiff said Callahan. That and John R.- and the John R. the paid lands up including the taxes and Callahan said plaintiff, year 1922, John R. and that neither said Callahan nor paid any on said taxes lands thereafter. That the deed made general warranty the said John Callahan H. 0. Balch R. was a with full covenants and of title. That reason of warranties plaintiff R. aforesaid, the acts and said John Callahan as plaintiff asserting any right, now claim, or in- terest, lands, pеtition. in or to the described in his
“Wherefore, prays the defendant the court ascertain and de- termine and the title plaintiff find to said lands divest the thereto, all claim or title the same in defendant, vest perfect plaintiff’s record title to said lands and proper for other relief.” reply follows.:
“Now plaintiff replication comes the and for to defendant’s an- swer any denies that the said person defendant or under whom she claims has ever had any part half of east Section Twenty-one, Township Thirty-two, Range Six, any or has done act by which they acquired she any title limitation. hand,
“On the other states that only act done the defendant or those under whom-she claims was to sell some of growing the timber on said land, authorizing parties other go on and cut and remove the same, that the acts under such done arrangement merely were a trespass, give and would not the de- any fendant title whatever to the land. “Plaintiff denies that the east half of said section the west half are one and the tract, same the other hand he states that never have been person. owned the same “Plaintiff that admits the west half of bought section'was by J. R. Callahan and himself, and the deed taken jointly thereto SupRbme Yol. oe Court therein', interest- solch'his all’egés he year but- about deed therefor. made him Callahan’and
to tlie 'said R. John with partnership ever “Plaintiff' denies he He lаnds.' admits selling of buying in his own deeds and took buy some did the said 'Callahan price on sale purchase part plaintiff' paid name'’'for-whicli Twénty-one was half of Section the east taxés, but as to'-whether find unable to Callahan, plaintiff purchased tract so not, but he states true or showing such is record whether buy money to portion of the furnish that-if he- did court therein his interest Twenty-one, sold out half said east *7 had with deal thereon before said’ John his 'the R. warranty deed a Balch, Callahan made and' that if the said H. 0. authority without accord, and did it his own Balch, the said he suggestion plaintiff. from' this transaction- do with the plaintiff had-nothing whatever to “This said land to regarding the sale of alleged in answer defendant’s the said Calla Balch,- and know what consideration the-said doesn’t that he made therefor, received -but does know states han guaranty, written, to said Balch as to the title either oral or anything regard of'said land1or thereto. says
“Plaintiff- further that at the timé of the transaction between Balch, said east half Callahan and the said the said of Section Twenty-one- pur- property Coxe, ’the MacGrane who Was Humphreys July 8, chased thé sanie from A. Willard deed dated 1891, plaintiff and that the derived his title from the Coxe. said
“That neither the Humphreys said Coxe nor the said ever made any claim to Twenty-one, plaintiff half of Section and this purchased Twenty-One half the east Section the said Coxе August;’ month of 1896, long making after quit of his claim deed-aforesaid long to the said Callahan for the west half and after conveyed the said Callahan Balch half Twenty- east of Section one, and which plaintiff since time the has made no- claim whatever ’ ” to the ivest half -Twenty-one. of Section Plaintiff’s claim of controversy real estate in upon rests following deed's, or muniments of duly all filed of record in Dent County, Missouri, recorded the deed records of. said county, put September evidence at the trial: On 1, 1859, the United States Mary issued to Bradley, as the purchaser, patent to the east half of Section Twenty-one, Township 32 north, Range 6 west, in Dent County;' January on 22, 1861, Mary said Bradley, a single woman, warranty deed filed for July 13, 1872, record on conveyed the east half of said 21 Section Drew; to William on March 6,. 1873, said Drew, William single man, by warranty deed filed for-record-on-May 10, 1873, conveyed the' east half of said Section 23 Woodside v. Durham. York; City, March' New on Humphreys of New York 21 to A. Willard Bradley, husband,- Mary and her 13, Mary formerly 1874, McDonald, deed, for filed McDonald, Patrick executed and delivered half of east May 12, 1874, purporting to on record A.. Willard July 1891,-said Bellew; 8, on to Solomon n Brooklyn, Humphreys Humphreys, wife, both Mary C. 1891, August 5, on by quit-claim New filed for record York, Coxe conveyed the to MacGrane of-Tux- east half of said Section York; signed, “A. Hum- edo, W. New the last-mentioned deed is grantor body deed", рhreys," but the in the is described Humphreys;’’ acknowledgment thereof, Willard “A. August wife, 1896, Coxe, both 27, MacGrane Coxe and Lena for Tuxedo, York, by quit-claim filed record on Decem- New conveyed 1, Leigh- ber the east half of said Section B. Woodside, herein. deed, '9,
Plaintiff also in evidence read dated October sheriff’s purporting 18, 1882, filed for record on December con- vey the east half of said Section to J. R. Callahan.- The said separate judgments sheriff’s deed contains recitals that two were April entered on respectively, in favor of the- State at the relation use the Collector of Revenue and.to County, against Dent Humphreys, Solomon Bellew and A. W. respectively, delinquent county special state, levied,- taxes assessed and found to"be due the east half of said Section- 21 for the 1876, inclusive; 1868 to that special executions, or or-' *8 ders sale, duly upon were issued judgments; said the east- half of duly said Section 21 was levied and seized under said' writs of execution, and duly the said real estate advertised and sold by sheriff, authority under execution, said writs of on October 9, 1879, being to said J. R. Callahan, highest bidder therefor. Plaintiff put in also publication evidence order of judgment and by default in suit, the tax entitled, Missouri, “State of at the rela- tion and to use of the Collector of Revenue County, of Dent Missouri, against A. W. Humphreys,’’ which shows that phreys was a non-resident of this State and was Hum- A. W. pen- notified of' the dency said tax suit publication, and that 'by default was published bottomed given notice to the defend- ant therein, named W. Humphreys. A. put Plaintiff also a tax deed, evidence dated 8, 1879, October conveying R. to J. Callahan and L. B. Woodside the west half of Section 21, Township 32, Range 6, under for delinquent taxes Benjamin Barker, special execution thereunder; quit-claim also a deed, July 3, 1893, dated filed for record on July 6, 1893, from L. B. Woodside wife, Woodside, Martha con- veying to J. said Callahan, “the R. undivided one-half of the op Vol.
24 COURT in Dent west,” Range 6 north, Township'32 21, in Section half of County, Missouri. duly deeds, following upon the rests of title claim Defendant’s J. R. said 27,1893, June On put in evidence: recorded con-, 1893, July 17, on record filed for warranty wife, by deed 0. Balch Balch; H. H. said 21 to veyed of said Section all conveyed all 1893, 2, November on wife, by for record deed filed Lane and D. Lane; William said 21 D. William to said Section conveyed all 1893, 22, on December for record wife, deed filed Jamble, a R. Jamble; said Julius R. to Julius 21 of said Section conveyed- 1893, 22, December on man, by filed record single deed wife, Balch and Balch; said J. R. J. R. to all of said Section conveyed of said 1895, all 1, February filed on deed for record husband, Lane and Lane; Mary said Jane Mary Jane Section to conveyed all'of said February 1, 1895, on filed for record deed of Kankakee Durham, and Bertha W. M. Durham Section to Durham) (or M. Welton Illinois; Durham County, said M.W. February 4, 1896, and by warranty dated Durham, deed Bertha A. conveyed purported half February 6, 1896, filed for record on 21 to Frank M. in all of said Section of Welton Durham interest Durham, M. Hamilton, assignee of W. deed Hamilton; Frank said convey purported 20, 1898, all said filed for record on June Goodwin.; M. 21 Hiram Bertha A. Durham and W. Section said warranty 1902, Durham, husband, by 4, dated October her convey 6, 1902, purported filed on all said for record October George White; 20, 1909, H. on March the executors of Goodwin, deceased, will and Hiram the last testament granted power will, in said filed for record on Au- of sale gust George' all of 4, 1909, purported to said Section to said White; February 10, 1916, George H. and' White," by- on H. ’ February 23, conveyed deed filed for record defendant, Durham, quarter Bertha A. northwest ’north- quarter, east quarter,- south half northeast the south- quarter east being said Section in controversy, to- gether -with the west half of said Section Township all Range 6, in County, Dent Missouri. plaintiff, Leigh B. Woodside, testified at trial: “I
personally acquainted Humphreys with and I knew name; *9 ‘A’ name Asahel, stood for generally but he was called A. Humphreys, Willard or Humphreys; Willard I never heard him called Asahel, I but asked him ‘A’’ once what the was for and he told me, way that is the I know.” The defendant’s evidence to show that, tended twenty-five some or more years prior to the commencement of M. W. suit, the instant Durham, Durham, Welton husband of defendant, per- allowed-and Woodside Durham. Schafer, John mittеd Jacob Schafer and Dave Medlock to fence and separate parcels cultivate two in the half of said Section west parcels being said tracts or of land referred to the witnesses as “the Durham field.” The Schafers and fenced and have Medlock continuously cultivated two half tracts of said sec- up tion to the time of trial of the instant suit. The land com- prising or, whole, least, larger part, at 21 is of said Section rough, wild and and its uncultivated, chief, principal, value is larger portion because of' the uncut timber on the The tes- thereof. timony portion of defendant’s witnesses was the effect that no any the east half fenced, of said section had ever had been nor improvements any placed kind ever been thereon. One witness testified that a "few ties had been cut at one time on the east half section, of said presumably, conclusively, by per- not Durham’s mission and plaintiff, Woodside, consent: testimony The adduced no possession part he had ever taken or asserted any actual the land in controversy. convincing There is no or substantial evi- dence in any person, the record that at time, taken, or ex- possession ercised, actual part over half of the east agreed by parties section. It trial, at the as disclosed* the year record, that, abstract of paid for the L. B. Woodside onе- paid half of the and J. R. taxes one-half of the taxes on the year land in controversy, that, defendant, since the and those under claims, paid whom she all the taxes thereon.
It was also admitted that Bertha and M.W. Durham are husband and wife.
The cause was tried and submitted trial court without the jury. aid of a At the conclusion of evidence, gave the court following request declarations of law at of plaintiff: “ (1) There is no evidence of former ownership ease estoppel interest that would create an to claim legal the land for if sued he has the title thereto. “ (3) judgments Where two are rendered compe- a court of jurisdiction upon tent action, the same cause of the second void, disposed having the matter judgment. the first “ (4) possession The of a of a tract of land will not extend adjoining to a tract of person land owned a different when there adjoining no acts of on such are posses- will put sion in force the Statute of Limitations. “(5) Payment cutting taxes and timber are not evidence of ’’ possession, of land. plaintiff asked,
The but the refused, court following declara- of law: tions “ (2) judgment under which the land sued for was sold for void, taxes was no valid sale could be made thereunder. *10 [April Term, Vol. Court “ own- is the case, plaintiff in this tbe evidence (6) all Under Range west, and Township of Section east half
er favor. quieted in his to have the title entitled against party for taxes judgment “(7). rendered Where' in,the of, set forth was.not that his name the fact on account void from him purchaser judgment, a and publication petition, order in the deed recital title because of claim the fo .signed. in it is manner which which he obtains “ name, of Wil- taken in A. land was (8)- Where'the. title to record, the initial entered of and if -Humphreys, and was so lard name, by was called Asahel, but he never for name ‘.‘A’^was but by Humphreys, a tax a-suit the name of Willard deed called Humphreys A. would not the title A. Willard W. .of Humphreys by publication; and where service was by judgment, if affected was not suit sale there- his'title under, belongs sale, land still to him after such could and he do wished, purchase with him it as he where the recited by Humphreys A. acknowledgment that it was made Willard and the acknowledged Humphreys shows that it was A. Willard would purchaser pass notwithstanding the title the fact that he ” signed by the initials- W. No requested by declarations of law were defendant. The trial thereupon court found the issues the defendant and rendered judgment declaring accordingly, the title to the real estate contro- versy fully to be well and vested in the defendant. After unsuccess- fully seeking plaintiff trial, new appealed court. original plaintiff
The appellant, Leigh B. Woodside, having during pendency died of his appeal, and his .having death suggested court, in the cause was revived in the names- of the Leigh heirs- of said Woodside, parties B. plaintiff appellant, .they have entered appearance their herein and have been sub- parties plaintiff stituted as and appellant in this court. I. .appellants assign error in the refusal the trial court of plaintiff’s requested declaration of law numbered to the effect judgment under which the land in controversy was sold for
taxes
void,
and no valid sale could be made thereunder, and in
tlie
plaintiff’s
reillsal of
requested declaration of
Suit
Initials:
law
Estoppel.
numbered
,
the effect that the .record title
of A. Willard Humphreys was not
affected
tax suit, publication order,
and default
against A. W.
Humphreys-, notwithstanding the fact that said A. Willard Humphreys
subsequently executed
signed
the deed to
(undér
MaeGrane Coxe
which plaintiff his substituted heirs
title)
claim
by the initials
“A. W.” Appellants also assert that the trial court erred in finding
,27
V. DURHAM.
WOODSIDR
estopped.
from-
effect,
holding,
Humphreys,
for, the reason that
to be void
initials, ...The,-three
Coxe, signed
his name
subsequent
error, aforesaid,, will be
separate assignments of
.and
treated
consid-
single
assignment
us as a
error..
ered
*11
hand,
that
the. tax judgment,
contends
Respondent,
the other
Humphreys
good
against
W.
A.
thereunder, against
sale
and,
tax.deed,
under
Humphreys,
Willard
those
title,,
uncler and
Humphreys and his
furthermore,
successors
.that
by
Humphreys
Coxe,
¡estopped to
virtue
the deed from
are.
question,
validity
proceedings and
sale
.thereunder
Coxe, by
Humphreys
fact
the deed
reason of
that
executed
to.
(cid:127)
Respondent plants
squarely upon
her contention
initials.
ruling
Reily,
v.
court name, is, said: As rule the full the first or Chris name, judicial tian of both all defendant proceedings in. legal should be set forth full. are not ‘Initials name, ’ holding the authorities the full Christian name to be essential. [Monroe Company Becker, C 47; U. 47; attle S. v. Gregory, Turner , exception an It true there is to this 100.] .rule where .is party against received., whom rendered has is. deeds .to op Vol. COURT there letters, but using his initial letter conveyed land
land, and done so.” Vincent had ever iii this that Minos C. ease was no evidence ours.) (Italics to certain took title 100, plaintiff Gregory, In Turner Singleton naming him as describing deed, recorded, duly land California, State of removed to the Having subsequently
V. Turner. was com same against the taxes, levied delinquent a suit for a default by publication, service had against Vaughn Turner, menced judg was sold under the land therein, and judgment rendered at trial grantor. Plaintiff testified ment defendant^ fifteen County, Missouri, some years in Johnson for had lived several generally known suit, where' he had land miles from the al that name Vaughn and “had answered to Turner the name of ’’ of this court: Judge speaking Division Two ways. Said GaNtt, case prime questions in this apparent one of the “It at once publication against Vaughn and an Turner order is whether a suit judgment against Vaughn Turner is against Vaughn Turner and Singleton Vaughn whose title Turner, sufficient to divest the title warranty Singleton depends Turner, V. (cid:127)to the deеd to *12 taxes, duly levy and of the which recorded to the assessment prior prior judgment, the and to the commencement of are basis of the against Vaughn the suit Turner. ... prin
“It is our law, plainest a fundamental rule of founded the ciples deprived life, shall his of natural man be of justice, liberty process property pro of law. the without due Notice of ceedings against validity. him is Accordingly, to their when essential feasible, actual, personal it provide ever our laws for service is action, proceedings the of in all defendant notice the the plaintiff Christian and surname of both the and the should defendant process set pleadings accuracy. be forth in the with v. [Martin wrong Barron, c. party 37 Mo. l. 304 and is When a sued a 305.] actually name and with process, appear served if he does plead misnomer judgment the in abatement will the not be void. [Corrigan Schmidt, v. l. c. Mo. But a distinction exists 311.] personal between a of service a case case where the defendant non-resident, only a publication. This, is where the notice is at best, is notice, but constructive service of resort is where substantial, rigid, to this a method, even observance of the law is required, ([Hutchinson otherwise the will be void. v. Shel ley, 400; Winningham Trueblood, v. 572; Young Mo. Mo. Downey, Hence, 145 Mo. in notifying person a by publication, 250.] as only designated by he can name, be omitted, his if his name be wrong á him, name is to attributed it is at once evident that he re- céives no notice in opportunity filing fact and has no plea abatement. . . then, .We class cases, as this rea DURHAM. V. WOODSIDE name question this the determination rule for sonable tlm record find that and we case rule to Apply this this owner. of record In his Turner. Singleton V. land was of this owner times, four than no less Y. Turner Singleton designated ishe grantors, his after that of in full name his own say signs strange record to which appears on his name making in all five times before of this land go find the owner required to the collector by his was known however, that he argued, It bringing suit. signed ever that he no evidence Yaughn. There middle name that others so the fact responsible for way, nor is he name that dis from nothing estop himself designated He has done him. having against Not him. proceedings validity of these puting the as name, appearing of record and that name sued real sued, county in which he was land in suit in owner to; subject must held void publication and order of harmony is in directly. This conclusion as collaterally well attack as. all of our decisions.” with again question dis Brown,
In Stevenson
opinion
delivering
of this division
J.,
P.
cussed
Graves,
rely
the cases of Vincent v.
“Defendants
court, thus:
Mosely Reily, 126 Mo.
c. 130. The
l.
Means,
appears
record that
contention
defendant
county in
lands in the
the name
plaintiff had received deeds to other
denying
validity
Stevenson,’
of ‘M. E’.
she is
proceeding
involved
by publicаtion
the notice
the case
go
think that
cases
extent
at bar. We do not
these'
contended
Had the
received the title to the land
defendant.
Stevenson,’
clearly-
E.
she
in the name of ‘M.
would be
here involved
The reason for
is found in
estopped under these cases.
the rule
requires
brought
itself,
which
these tax suits to be
statute
person
.
.
if
is,
owner.
.
That rule
the record
takes and
puts
to land with his
of record
initials instead of
full
*13
insufficiency
the
name, he will be
from
of a notice
name,
in
giving
deed,
his
as found
the recorded
in a tax suit to en
against
particular
as
this
force the lien of the State
tract of land.
may
ad'optéd,
As to that tract of land
be
to have
as for his
estoppel
the name in the deed. But
doctrine of
own,
cannot be
case,
in
Turner
Thus
l. c.
carried
it was
further..
sought
here, by
invoke the doctrine contended
showing
that
Yaughn,
his
Turner used the name
initials ‘S.
inV.’,
other busi
held to be of no avail.”
ness transactions. This was
(so
precise question
find)
was last involved
far
we
in
as
Peak,
Brown
S. W.
case of
v.
before this court in banc.
(involving
other
case,
In that
a deed
lands
than those now in con
A,
troversy) was executed and delivered to
Humphreys,
Willard
as
op
Vol.
CouRt
CO-CD--
exe
deed was
a
Subsequently,
duly recorded.
sheriff’s
grantee, and
in
Humphreys
A. W.
conveying the' title of
cuted,
him, to
against
delinquent taxes
judgment for
a sále thereof'under
‘‘A.
deed, signed
in
plaintiff’s predecessors
Later,
title.
’
to defend
and delivered
was
grantor,
executed
W.'Humphreys,’
as
per
according to the
which
opinion therein,
Bond; J.,
ant.
an
wrote
in
its
banc as
the court
adopted
in and
curiam, was “'concurred
’’'
judges of
then
opinion in
The’recorded vote
the case.
opin
separate
in a
however,'that BrowN,
shows,
J., concurred
court
result;
JJ.,
in
concurred
the.
ion;
Faris
and James T.
Blair,
J.,
which
in
separate opinion,
in a
J.,
Waleer,
dissented
Craves
separate opinion; and
concurred;
J.,
in a
Woodson, C.
dissented
dissenting opinion of
in
J.,
James 'T.
an addendum to
Blair,
wrong
(supra) is
Judge
“agrees,
Mosely case
that.the
Graves,
’’
upmi
J.,
opinion squarely
ought
bottoms his
to-be overruled.
Bond,
directly
point,
in
the'Mosely case; saying: “The
one which
case
rule,
repeatedly
falling
affirmed as
without the
been-
limits
aught
in
Mosely
appears
.
For
that
Reily,
v.
there, strong is á probability many land titles now rest upon the rule case, announced ought not to disturbed. Instead of changing our rule whereby rights may vested be disturbed un- settledj-it express policy uphold’ of this court to judicial sales *14 Í927] WOODSIDE V. DURHAM. well-rec upou some may au encroachment be without doñe
where
ognized
of law.”
rule
ease, said:
in that
dissenting opinion
separate
GRAVES,in
Judge
correctness
I
the
concede
in this case.
“I
to dissent
desire
Reily,
ruling Mosely v.
under the
opinion of'our Brother BOND,
squarely within the
bring it
at bar
the
CO- *15 estoppel. I be- of or doctrine the rale correctly applies logical, and wrong in principle Mosely Reily, case of lieve the or rale doc- the incorrectly applies case, facts of that the and, under great weight .of by the applied recognized and estoppel, as trine of Reily, Mosely v. the case believe authority. I furthermore division, of judges of this of the (with the concurrence supra, should overruled, and that positively pointedly and course) expressly, be bar, that de- and benefit for the aid announce, we should controlling rule announcing a longer as be followed cision should facts, as are found in same, like, or the principle of law under by utterance lack of authoritative In view of at bar. the the case unsettled, tangled, in view of the subject, and court on the of this court then members expressed by the several diversifiеd views high Mosely I time Peak, supra, think that it Brown v. overruled, or an- expressly positively Reily, supra, be either controlling jurispru- in Our (as positively) to decision nounced be certainty to land titles may some as dence, order that there be wherein, dependent by judgments, default, tax rendered constructively by publication land owner is served notice directed against him, by by record, but the name which he taken title of by initials, entirely foreign name, to the record of some other certainty judicial title. This court determination to owes such examiners of land to bar of generally. titles and this State
In bar, Humphreys, grantee,, case at A. AVillard as took title placed prior that name and his deed of record to the commence ment question. of the tax suit in revenue, The collector of at whose relation and to whose use tax was suit instituted the State, had access to the deed county records of the in which the land contro versy Disregarding lies. ownership the record he instituted the tax suit W. Humphreys, entirely a name foreign to record, defendant, attempted the title as procure to constructive serv process by ice of an publication order of directed to W.A. Hum- phreys, procured entry of a default judgment, under which conveyance sale and controversy land in attempted to During made. time, all such A. Willard Humphreys, the owner according land duly recorded the title records county, presumably (so far as the record herein discloses) was a resident of the distant state of New York. It is true that Humphreys purported quit-claim deed which, however, him, describes body in of the instrument, as A. Willard Humphreys, and which is shown the notarial certificate thereon to have acknowledged by A. Willard' Humphreys, and that, long after the tax proceedings,' default therein sale thereunder, he signed executed and said quit-claim his ini tials, viz., “A. W. Humphreys.” By so doing, did nothing -Woodside v. DuRHam. injury expense and at the State, mislead the tax officers of or conduct which guilty of act Neither was he of the State. anyone upon by officers, or State, its
relied acted prior special thereunder, execution tax under the injury, judgment, their the time to'-and-at inconvenience . against Humphreys estoppel lie expense opinion, In does not our Humphreys’ or conduct appellants act and-the herein reason deed-to Our conclusions the execution Coxe. diametrically previous ruling opposed to the herein are therefore Mosely court, facts, as announced the case like Reily, ruling must and that be and is decision. announcing now, expressly pointedly an erroneous overruled- *16 applicable or in principle rule of law to -the facts that case. respondent original plain- claimed, however, by
II. that the It part- and-аppellant Leigh Woodside, B. herein, tiff reason respondent) nership (so pur- with-J. Callahan in the termed R. chase of the half of said 21 at sale under execution east Section in the tax suit A. W. Hum- W3031 Estoppel- phre.ys, validity estopped deny judg tax to of said Partners. thereunder; ment and deed.to Callahan fur- the sheriff’s thermore, respondent original plaintiff, Woodside, claims that the executing delivering quit-claim -and conveying to Callahan a deed to Callahan an undivided one-half the west half of said Section thereby warranty authorized Callahan to and' deliver a execute deed conveying the hence, original whole of said 21, and, Section that the plaintiff, Woodside, deny to the‘title of defendant and respondent warranty under the deed of Callahan.
But the record herein discloses that Woodside testified quite positively at the trial that he “was never with partnership J. Callahan; we bought bought R. some together, we the west half of Section joint names, the deed was in our taken I made quit-claim my him a to plain- half.”. deed The [Callahan] tiff, Woodside, testified further': “He bought some more [Callahan] lands, I paid consideration, half of the but whether half, the east what I suing among am for, was I lands, those am not say able to today;'it might been, say have I wouldn’t it not. . . But . any I never took them and to never' authorized him (Callahan) warranty deed; fact, to make a always I told him might that he figure exсept anything making me. quit-claim a deed', and in fact I don’t anything remember that he said to me about Balch about that transaction. He seems to conveyed [Callahan] whole Section the east half, and the west -to man half name of Balch and the record shows that he a warranty made deed, it was my knowledge not with consent, I if had but interest Mo, 317 —3. Vol. Court bim it to quit-claimed I half, and in the west interest I bad an
it.
author-
I never
half,
east
interest
if
had an
I
[Callaban]
deed
But the
.
.
.
warranty deed.
amake
bim to
ized
dollar
consideration of]
shows
Balch
[a
made to
[Callahan]
anything
to
to amount
any price
got
I never
exchange of lands.
the deed
got anything,
I
whether
I don’t remember
it.
out of
hundred
half, shows
the west
quit-claim
him,
I made to
in contra-
evidence
offered
Defendant
consideration.”
dollars
support
tend
records
The title
testimony.
plaintiff’s
diction
judg-
void
testimony. The sheriff’s
plaintiff’s
half
convey
east
purported
Humphreys
against A. W.
ment
“
being the
B. Callahan
alone, said J.
21 to Callahan
of said Section
21 was con-
Section
half of said
west
therefor.
highest bidder”
L.
R. Callahan
to J.
tax deed
separate
different
veyed
quit-claim deed
conveyed by
Woodside
Subsequently,
B. Woodside.
Callahan.
said Section
half of
half of the
his undivided
warranty deed, purported
Thereafter, Callahan,
predecessor in title.
Balch,
21 to
defendant’s
whole of
Section
interest
Woodside
disclose that
title records
No where do the
lo-
21, in which is
east half of said
of title to the
or claim
long afterward, placed
Woodside,
controversy,
until
cated the land
may
inferred
Coxe. While
record the
deed from
Woodside,
contributed
testimony
plaintiff,
that he
from the
Sec-
purchase
half of said
price paid by
the east
yet
saw Balch and
positively
tion
that he never
Woodside testified
nothing
transaction between Callahan and Balch.
knew
about the
*17
upon
slightest
There is not the
the record before us that
evidence
Balch,
respondent
upon any
or the
herein,
defendant and
relied
act
plaintiff, Woodside,
or conduct of the
or that either Balch
de-
injured by
plaintiff,
fendant was
reason of
act or conduct of
change
that either was
situation,
caused
or to suffer detriment
loss, by
reason of
plaintiff.
reliance
the conduct or acts of
‘‘
Thompson
In
Lindsay,
v.
Mo. l.
we said:
c.
virtue
plea of estoppel lies,
general
rule,
proposition
as
constituting
estoppel
by
party
facts
were relied on
to be
affected,
change
caused him to
situation,
or in
way
some
to suffer
’’
by
detriment or loss
reason of such reliance.
To like effect is Kline
v. Groeschner,
Solomon sheriff’s Bellew that, though Respondent however, even the tax contends, IY. Humphreys, judgment- against A. W. and the deed there sheriff’s under, R. void, the sheriff’s J. be held to be nevertheless deed to purchaser (the at the execution sale said void respondent’s title) gives ju<^§'men^> predecessor in arL<^ Color of Title- respondent controversy, color of land in the. Limitations. respondent, and that or those under whom she clаims, possession took of such land deed, under said sheriff’s which ripened ten-year has absolute into title under Statute (Sec. 1919). Limitation S.R. That the deed to sheriff’s Callahan, although invalid, of title, constitutes color can there question. no Link, In Hickman v. 97 Mo. l. c. court said, discussing what constitutes color of title: “Much said in is the books to what will what will not constitute of title, color many exceptional of the cases are in their character. Generally, may any writing be said which purports the title to by appropriate, transfer, words of and describes title, though writing color of invalid, actually void, and con veys [Fugate Pierce, 234; Hamilton Boggess, title.. See, also, Pharis Bayless, Mo. l. 124; 234.]” c. Heine Bennett, 117; mann v. 144 Mo. l. c. and Wilson v. Taylor, 119 Mo. remains, therefore, It tous. determine whether nisi supported substantial evidence adverse, open, notorious *18 possession of the land in controversy continuous respondent, claims, those under period whom she for a of ten before the commencement of the instant suit. In determining this question, we must briefly testimony advert respondent’s witnesses. H. “Q. witness P. Schafer testified: Now, who has been
claimer of this land in 21, that Section who has claimed it? Vol. óf CouRT some time. for claiming that land has been Well, Mr. Durham
A. Well, your Q. long. just how remember I don’t know, I don’t A. iand? claimed Durham years has Mr. many knowledge, how years, I would twenty-five rise of something it been Well has long been that has that it confident рretty well judge; well, I am is? first name know Q. you Do what there. he was first since improvements, any Q. there Now are Durham, I think. A. Welton cultivation, that is any in fence,- and any of that land fence, and that is under Yes, sir, is a little 21 ? A. there many it Q. parts How little. land, some that is little cultivated Well, ? A. the south- anything about you know are under fence quarter, there’s a half, of the southwest or the west half Q. in cultivation How much is two forties. forty, of that or them probably plowed there has been Well, two A. what those forties? Q. I acres. How much something, guess, about fifteen would be forty expect probably Well, A. I there acres. is under fence? ' Well, ? I Q. long under fence A. could How has that land been Q. can, years? you exactly. Oh, you near as the number of tell as twenty years; something, I A. It has in the rise it'has been been twenty-six twenty-seven years, say think, rather but I wouldn’t positively. Q. you Yes, That is near as can it now ? A. as estimate Q. people as, sir. What that field known what do know that by? country Well, they enclosure down in A. call it the Dur- Q. Now, you field. ham of that land for Mr. Durham, years? for a number Well, my has, A. father after Q. regard Uncle John did say it, left it. What Durham Mr. arrangement you what did Well, have with him? A. I don’t know Q. just exactly can say. that I Oh, you Any- near as as can? .1. way, Mr. Durham didn’t cultivating seem care land, anything just kind, they so didn’t cut the timber. now, I think I I positive, wouldn’t be think he told Pa that as far fencing land', says, you ‘Now can it, you fence or if want your to take fence back off of the that don’t make a bit оf dif- Q. ference me.’ Did Mr. Durham have of the timber cut off of this A. land? Father and bought Mr. Cook the —I re- don’t much, member how but I think it quarter was the northwest section, the timber off quarter northwest I think that is what bought. Q. Well, this fence has been around place con- tinuously since the first put time it was there, was it? A. sir, Yes, the ivest half land; you understand, Q[ west half. .This piece you of land talking are about that was fenced? A. Yes, sir, kept up, been kept up we the fence ever Q. since. And has the land used, been way, in some in connection with farming? Yes, sir, there has been a little of the land pasture used in farming.” ‘‘Q. Cross-examination: There has never *19 1927]. V. DuEHAM. WoODSIDE I don’t think A. there? half of east on tbe fenced
land Q. And on the east half. fenced sir; no land so; no, there No, sir.” it? A. any put on kind improvements of testified;': long yon known ‘‘Q. How have Medlock Witness Dave twenty- about recollect, I Well, A. as well Welton Durham? Mr. this has claimed you that Durham Q. know Do Mr. years. four of it? him, be the owner you known claimed have ever since Q. have Now the owner sir, has claimed to be Yes, he A. Well, A. cultivation? and in any of 21 fence you got. or acres that much; ten twelve I don’t know how have-got some, I have Q. Now, part of that maybe fenced, and fifteen. what quarter north- Well, on the southwest you fenced? A. it is A. Well, you that fenced? Q; long have quarter. How Q. guess at it as I know now. Just I think fenced this —I don’t twenty-four twenty-five or you ago, A. About near as can-? - exactly. Q. you When found out twenty-five, just know I don’t arrangement you have with belonged Durham, what did to Mr. that only I possession of it? A. didn’t have holding the him about no— work, I had it fenced he told me if he there and went to come when I wanted to go pasture it as and whatever use ahead and use (cid:127) Q. you, any, if give What did he way I to. direction wanted Well, give any. I way don’t think he ever me of timber? A. continuously Q: since Well, you had land under fence that Q. first, you Yes, it? used A. sir. You have it time fenced A., Q. your Yes, was Mr. Dur- farm? sir. What connection with Q. prospecting ? mineral. Do doing clownthere A. He was ham you selling any land, any from of him of the timber know did; A. he Well, rest of that wasn’t in cultivation? I think it mill; I think the at our at a I think Mr. place timber was cut there Schafer, my understanding’ got there, sawed timber is he Q. you looking What Mr. Mr. Durham. do know about Durham up A. present Well, that after land from time time? say Q. said, I never him about it. Not heard much what he what Well, do? looking did he A. was down there over the land. Q. Well, you know, neigh- generally do is it known down in that there, located, Durham, where this land is that Mr. borhod Durhams, A. Well, claim the entire section? it is known this; course, with me Mr. Schafer that he claims the field field, pretty nearly everybody there that call the Durham knows Q. is, by where the field- that Durham name. What Durham for, guess that named A. Well, called I for? it was Welton. the Q. looking man that was down there after it. Is it a matter knowledge of common repute country down there Mr. Durham has been land for a years? number Yes, A. ”Q. sir.” Cross-examination: Now you the land thаt Vol. oe Court A. It quarter the section? in the northwest
have fenced is .Q. Has there ever quarter.' quarter of the northwest the southwest ' Q. Or No, A. sir. any half of the section? fence on the east No, A. 'sir.” improvements kind? enclosure “Q. you know where Sec- Do testified: Witness Jacob Schafer Q. sir. Have Range located? Yes, 21, Township tion *20 fifteen sir, A. about Yes, you got any in cultivation? that Q. long How have quarter. half acres, in the west southwest along, expect Why, I somewhere you that A. cultivation? Q. known and called twentjr-five years. generally is it about What Q. Durham field. by? generally goes the name of the A. It Q. Well, Durham. suppose Who it after? A. I Welton was named Well, say,- I couldn’t long you How A. have known Mr. Durham? neighborhood twenty good long guess or bit; I somewhere years. Q. you twenty-five buy any Did of the timber off ever bought sir, pine Yes, that land from Mr. Durham? A. we some quarter. Q. you I think know timber. it was on the Do northwest being looking of Mr: timber was Durham down there after the that you land, acquainted him.? that since the time first became with say looking A. I timber, could not that he was was after the but he go Q-. down Well, you and he there would over there. have known of Mr. claiming you acquainted Durham that land since first became with Yes, it, Q. him? A.. sir, he claimed that is what said. Said he matter, Q. it Yes, was land? A. it Now, knowledge sir. and repute that Durham, tract owned Mr. all of 21? Well, A. myself I know that he claimed the I Q. is all Well, neighbors know about it. around that land? A. IWell, Q. don’t know how looked at it. You don’t general know how No, information is? A. sir.” Cross- ‘‘Q. examination : Now, you got what is in the' southwest quarter, Q. Yes, enclosed? A. And sir. what Mr. Medloek has is in enclosed quarter? Q. the northwest Yes, A. sir. There is improvement on the east half A. No, Q. of the section? sir. Never has been? Q. A. No, sir. any. Never been enclosed? A. Q. No. And improvements there never has been on it? made A. No, Q. sir. Or any buildings, or cultivation or anything Q. that kind? A. No, bought You sir. the timber on the north- quarter? Q. A- you Yes, sir. Did cut Yes, it off? A. sir, me John, and together, Q. it. cut Someone-hascut the off timber east half, they, haven’t some of A. Well, it? there been a little cut I off, think there was a little cut there one time when Mr. Durham was there; down Newt Hancock Q. made a few ties. There has not much A. Q. cut? No, say sir. You that Durham had that cut on the east half? sir, A. I Yes, think some ties there; made Newt Hancock cut ties there, Q. said he some did. v. Durham. Woodside 'CO -o* ties, and and made timber just cut the went on and They Yes, off, that is all? them sir.” hauled M. testimony that Welton foregoing appears from thus It predecessor in respondent and her Durham, the husband of through his ten- part of said Section possession of a took actual twenty-five or Medlock, some licensees, Schafers ants bar; at of the suit prior to the commencement more parts the- and cultivated enclosed fenced, Schafers Medlock twenty-five years prior to the 21, at least west half of said Section continuously posses- held action, and have commencement of enclosures, for Durham thereof, the fences sion and maintained time; during period of that the him, under those possession with the have held such continuous Schafers Medlock Durham; held that such permission or sufferance of Durham; 21 by of Section ownership claim of whole generally parts of said Section were that the enclosed fenced Dur- neighborhood of the land as “the notoriously known ’’ upon parts field; cut of said Sec- ham and that certain timber was authority Durham, including permission some tion appears It tie half of said section. furthermore timber east *21 21, an of Section as entire and un- the record that the whole purported exactly conveyed, be tract, conveyed, divided record, title, duly of filed for be- ten deeds or instruments times Callahan, 1879, to J. R. 9, tween of the sheriff’s deed October the date 10, Durham, February Bertha A. 1916, date of deed to George respondent herein, White, which latter date H. on respondent of grantor, purported to the whole said Sec- quarter 21, except quarter tion of northeast of the northeast controversy. 40 not in section, excepted which acres is It also original plaintiff appel- stands record that admitted paid herein, Leigh Woodside, lant B. no taxes levied asses- against controversy approximate- year 1892, sed land in since the thirty-one ly suit, of before the the instant but commencement claims, paid respondent, that and those under she all whom said land since 1893 taxes assessed to the date of the original plaintiff appellant, of trial this action. Nor does the Woodside, testify, herein, posses- or claim in actual ever any sion of the land controversy in he ever exercised act of ownership thereover.
Appellants claim is no in that there evidence the record that re spondent those under whom she claims were pos ever actual any portion of session of the half pos east of said Section their session, being solely if any, portions confined to small of the half of section, payment and also that of mere taxes and cutting possession of timber on land does not constitute adverse Missouri, Vol.
40: Court oe Re c. 602. Mo. l. Perkins, 217 so ruled Stone thereof. We by respondent, possession hand, contends that spondent, the other of parts title, of of claims, color under-whom under those she constructive tract tract, of the whole the whole in the name claimed} possession of tract. the entire adverse part of Stat- which is a our Revised Statutes title, of provides: possession, under color Limitations, ute “The tract part the name of the whole .of'a of a tract lot of possession, the claimed, exercising, during the time of such usual claimed, shall deemed ownership over the tract ac-ts whole so (Italics ours.) a possession whole such tract.” of the foregoing statute, we Construing of the purport ’effect “ said, Bayless, 122 Mo. l. 123: Counsellor defend Pharis v. c. ant main possession, insist that which will enable 30-year tain Limi e., his action under this section Statute [i. pedis only recover, is an possession actual that he can if at tation] all, possession; that land which he had an think actual we long there is no foundation such a construction. It has been the posses established rule State where one enters into the portion sion of a of a of land a deed, tract or other muniment tract, to the whole he'is deemed to have seisin the tract co with extensive the boundaries described in the deed or other muni ment, where no open,' possession there is part adverse so land described in person. other Schneider, [McDonald 405; Fugate Mo. Pierce, 441; Davis, Callahan v. (Italics ours.) To like Bennett, 444.] effect Heinemann v. Mo. 113. So, this- division of court has said in Schofield v. & Land Min
ing
Co.,
S.
61, W.
64: “The law is
possession
well settled that the
with,
of a
of a
tract
whole,
claim of the
with
usual
acts of ownership
tract,
over the entire
possession
establishes
whole, and
ripen
will
into title under the Statute
of Limitations.
1909;
R. S.
Heinemann v. Bennett,
[See.
*22
113;
Mo.
v.
Herbst Merrifield,
While on land has taxes been held us not to consti tute possession evidenсe of by the party thereof paying’ taxes, yet we have ruled payment of taxes on land is evidence aof claim of ownership 685; thereof. Comanianni, v. 221 [Chilton Mo. Pharis v. Jones, 125, 131; Mo. l. c. Carter v. Hornback, 139 Mo. 245; l. c. Stone Perkins, l. c. payment The 602.] taxes on the land in controversy by respondent, those under whom she claims, from 1893 to the date 'the trial of the instant suit, inclusive, was “a ownership usual act of over the whole tract- n Cooperage Kersey Land & Co. ex State eel. within the predecessors title, in by respondent and her claimed” and the evidence purview 1309, 1919, Statutes of Section Revised in predecessors title have disclosing respondent and her possession of continuous, open, in and adverse notorious conveyed by, the several in, purported the tract described title) (which which she claims color of under deeds constitute claimed,-respondent be deemed name of the tract must whole -possession tract, of such -which includes been in of the whole controversy. enough, think, The evidence is substantial we to establish that re- spondent opén, and those under whom she claims have beén ad- verse, controversy continuous of the land notorious and, than more ten before the commencement this action original hence, appellants and the substituted are barred ten-year 1305, Statute Limitation. R. S. [Sec. 1919.] findings being supported by The nisi substantial evidence, and no being reversible error found in record, it fol- lows that the herein should be affirmed. It so ordered. Lindsay, concurs. C.,
PER .foregoing opinion by CURIAM: The Seddon, C., adopted opinion as the of the court. opinion
Divisional adopted by the Court en Banc. All concur. The State at Relation and to Use of A. Parker Kersey, Collector
the Revenue in and for
Appellant, v. Pemi
County,
Pemiscot
Cooperage Company.
Court en
TAXATION: Ten Per Cent over
Bridge)
:Year Road
Previous
arid
Tax.
(Laws
Acts of
that
1921,
678;
1921 and
1923,
374),
p.
providing
p.
Laws
county
may
court
levy
not
produce,
“order a rate of tax
that will
mathematically,
per
more than ten
cent in excess of the taxes levied for the
previous year,”
apply
special
do
bridge
road and
taxes of not to
twenty-five
exceed
county
cents on the hundred dollars’ valuation which the
discretion,
court
Constitution,
22 of Article
Section
10 of the
its.
may levy,
county
“in
purposes”
addition to taxes authorized to be levied for
counting
may
under Section 11.
In
the rate of taxes that
be levied in
year'in
year,
preceding
county
excess of the rate for the
court is not
required
money produced by
levy
take
into consideration the
special
bridge
year
preceding
22,
road and
taxes for*the
under said.Section
levy
per
money produced
previous
but the
is limited to 110
cent of the
year
county purposes.
[Overruling
from all other levies for
State ex rel.
Railroad,