Brace, J.
— This is an action in ejectment for an undivided interest in certain real estate, described in the petition, situate in Franklin county. The answer was a general denial. The case was tried by the court without a jury. The judgment was for the plaintiff, and defendant appeals.
The material facts are not disputed. In the year 1851, John K. Bell died, seized of the lands described in the petition, leaving ten children surviving him, of whom the plaintiff was one. In the year 1861, the plaintiff and one of his brothers left Missouri and went west, and thereafter, until the trial of this cause, remained absent from the state.
On the twenty-second of August, 1881, a suit for partition of said lands was instituted in the Franklin circuit court, returnable to the next ensuing November term thereof, by two of the children against the others, in which the plaintiff was named as a defendant in the petition, and his residence stated to be unknown. Some of the defendants in that suit were served by summons and some by publication, but it is conceded that the plaintiff was not legally served in either mode. At the return term, the following entry appears upon the record in said suit:
“Chas. Bell et al. v. “John T. Bell et al.
“Leave to answer on or before sixty days of the next term, and cause continued.”
It was admitted that the only answer ever filed in. said suit was by two of the defendants, who had been served by summons (Sarah Childers and John T. Bell). At a subsequent term one S. M. Jones was substituted as a party plaintiff in lieu of Charles Bell, and at the May term, 1882, judgment of partition was rendered, and order of sale as follows:
[274]*274“S. M. Jones, Minerva Parker and' her husband, Charles E. Parker, v. — (Partition) “John T. Bell, Lilburn Bell, Prank Bell, Lydia C. Prancis, Susan Per- • kins, Martin Y. Perkins, Almeda P. Kennada, Jerome Kennada, Sarah Childers and Marion Bell. __ •
‘‘Now, at this day come the said parties, by their respective attorneys, and this cause is now submitted 'to the court upon the pleadings and the evidence adduced, and the court, being now fully advised of and ■concerning the premises, doth order, adjudge and ■decree that partition be had of the lands in plaintiffs’ petition described as follows,'to wit,” etc. Then follows a description of the lands, the finding of the interests of the parties, that the lands can not be divided in kind, and an order of sale in the usual form.
A sale was made in pursuance of the order and reported to the court at a subsequent term, the approval of the report appearing upon the record with the same caption, followed by the recital, “Now, at this day, come the said parties by their respective attorneys,” as before.
Afterwards a deed was executed by the sheriff in proper form, duly acknowledged, proved and recorded, reciting the judgment, order of sale, sale thereunder pursuant to advertisements, etc., conveying the premises to S. M. Jones, the purchaser at such sale, under whom the defendant claims.
The defendant, after introducing the record aforesaid in evidence, offered said sheriff’s deed, which was rejected by the court, and this is the error complained of.
The statute provides that such a deed £ £shall be a bar against all persons interested in such premises who shall have been parties to the proceedings, and against [275]*275all persons claiming from such, parties.” 2 R. S. 1889, sec. 7169.
Persons interested in real estate may be made parties to a proceeding for partition thereof, either by proper service of a writ of summons, an order of publication or by voluntary appearance to a petition filed for that purpose. R. S. 1889, secs. 2013-2022.
The record upon which the defendant relies to sustain the sheriff’s deed in this cause failed to show that the court acquired jurisdiction of the plaintiff or his interest in the premises, either by summons or publication of notice, and the only evidence furnished thereby of a voluntary appearance by the plaintiff is contained in the recitals quoted. The first contains no evidence whatever of the' plaintiff’s appearance, being, as it appears upon the record, a mere leave to plead given by the court ex mero motu. The third is of no significance, being the usual formal order of approval following the judgment, where no objections are made to the sale or the proceedings under the judgment. The whole force of defendant’s contention is determined by the weight to be given to the general recital. “Now, at this day, come the said parties, by their respective attorneys,” following the title of the cause in which the plaintiff’s name appears among the other defendants in the record of the judgment of partition.
The defendant contends that this general recital is conclusive evidence of plaintiff’s appearance in that action, and can not be gainsaid in this collateral proceeding, because it is not contradicted elsewhere by the record. But can it be said, when we look at the whole record, that this recital is not contradicted, and that it appears satisfactorily therefrom that the court acquired jurisdiction? There was no effort made to acquire jurisdiction by summons, for the sufficient reason stated in the petition of the brother and sister that his [276]*276residence was unknown. There, was an effort made to-acquire jurisdiction by order of publication, the proof of which was filed at the same term that the court, of' its own motion, gave leave to answer in vacation, .but upon the face of this proof, filed in the cause, the failure to acquire jurisdiction of the plaintiff, by that mode, was patent upon the(face of the record, and not a hint is given by any entry of any kind thereafter made that-this special condition of the case, with respect to the plaintiff, over whom the court had then failed to acquire jurisdiction by any process whatever, was changed, in any particular; but it appeared upon the face of the record that the circuit court had not acquired jurisdiction over the plaintiff or his interest in this land up to-the time that this general recital appears in the judgment of partition, which the defendant claims is conclusive and uncontradicted.
If this contention be maintained-, then lands in. Missouri are held by a very frail and uncertain tenure in case of partition; for, it is a fact well known to the profession, that it is too generally the custom of the-clerks, when these entries are made without supervision, to take the style of the ease and the names of the parties from the petition, and introduce the judgment-by the stereotyped phrase, “now come the parties, by their respective attorneys,” without reference to the files to ascertain who has been served and who has not, and without noting what is the actual condition of the-record in respect of those who are named as parties in the petition, so that it can be determined whether, as a. fact, they have really been made parties in the manner provided by law, and, if anybody comes, without noting particularly who comes, or how. But when anybody-does come, in any manner, we have this general recital: “Now come the parties, by their respective attorneys.”
Nevertheless we are cited to a long list of cases as-[277]*277supporting the contention that this general recital in the connection in which it stands upon this record, is uncontradicted and conclusive upon the plaintiff in this ease.
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Brace, J.
— This is an action in ejectment for an undivided interest in certain real estate, described in the petition, situate in Franklin county. The answer was a general denial. The case was tried by the court without a jury. The judgment was for the plaintiff, and defendant appeals.
The material facts are not disputed. In the year 1851, John K. Bell died, seized of the lands described in the petition, leaving ten children surviving him, of whom the plaintiff was one. In the year 1861, the plaintiff and one of his brothers left Missouri and went west, and thereafter, until the trial of this cause, remained absent from the state.
On the twenty-second of August, 1881, a suit for partition of said lands was instituted in the Franklin circuit court, returnable to the next ensuing November term thereof, by two of the children against the others, in which the plaintiff was named as a defendant in the petition, and his residence stated to be unknown. Some of the defendants in that suit were served by summons and some by publication, but it is conceded that the plaintiff was not legally served in either mode. At the return term, the following entry appears upon the record in said suit:
“Chas. Bell et al. v. “John T. Bell et al.
“Leave to answer on or before sixty days of the next term, and cause continued.”
It was admitted that the only answer ever filed in. said suit was by two of the defendants, who had been served by summons (Sarah Childers and John T. Bell). At a subsequent term one S. M. Jones was substituted as a party plaintiff in lieu of Charles Bell, and at the May term, 1882, judgment of partition was rendered, and order of sale as follows:
[274]*274“S. M. Jones, Minerva Parker and' her husband, Charles E. Parker, v. — (Partition) “John T. Bell, Lilburn Bell, Prank Bell, Lydia C. Prancis, Susan Per- • kins, Martin Y. Perkins, Almeda P. Kennada, Jerome Kennada, Sarah Childers and Marion Bell. __ •
‘‘Now, at this day come the said parties, by their respective attorneys, and this cause is now submitted 'to the court upon the pleadings and the evidence adduced, and the court, being now fully advised of and ■concerning the premises, doth order, adjudge and ■decree that partition be had of the lands in plaintiffs’ petition described as follows,'to wit,” etc. Then follows a description of the lands, the finding of the interests of the parties, that the lands can not be divided in kind, and an order of sale in the usual form.
A sale was made in pursuance of the order and reported to the court at a subsequent term, the approval of the report appearing upon the record with the same caption, followed by the recital, “Now, at this day, come the said parties by their respective attorneys,” as before.
Afterwards a deed was executed by the sheriff in proper form, duly acknowledged, proved and recorded, reciting the judgment, order of sale, sale thereunder pursuant to advertisements, etc., conveying the premises to S. M. Jones, the purchaser at such sale, under whom the defendant claims.
The defendant, after introducing the record aforesaid in evidence, offered said sheriff’s deed, which was rejected by the court, and this is the error complained of.
The statute provides that such a deed £ £shall be a bar against all persons interested in such premises who shall have been parties to the proceedings, and against [275]*275all persons claiming from such, parties.” 2 R. S. 1889, sec. 7169.
Persons interested in real estate may be made parties to a proceeding for partition thereof, either by proper service of a writ of summons, an order of publication or by voluntary appearance to a petition filed for that purpose. R. S. 1889, secs. 2013-2022.
The record upon which the defendant relies to sustain the sheriff’s deed in this cause failed to show that the court acquired jurisdiction of the plaintiff or his interest in the premises, either by summons or publication of notice, and the only evidence furnished thereby of a voluntary appearance by the plaintiff is contained in the recitals quoted. The first contains no evidence whatever of the' plaintiff’s appearance, being, as it appears upon the record, a mere leave to plead given by the court ex mero motu. The third is of no significance, being the usual formal order of approval following the judgment, where no objections are made to the sale or the proceedings under the judgment. The whole force of defendant’s contention is determined by the weight to be given to the general recital. “Now, at this day, come the said parties, by their respective attorneys,” following the title of the cause in which the plaintiff’s name appears among the other defendants in the record of the judgment of partition.
The defendant contends that this general recital is conclusive evidence of plaintiff’s appearance in that action, and can not be gainsaid in this collateral proceeding, because it is not contradicted elsewhere by the record. But can it be said, when we look at the whole record, that this recital is not contradicted, and that it appears satisfactorily therefrom that the court acquired jurisdiction? There was no effort made to acquire jurisdiction by summons, for the sufficient reason stated in the petition of the brother and sister that his [276]*276residence was unknown. There, was an effort made to-acquire jurisdiction by order of publication, the proof of which was filed at the same term that the court, of' its own motion, gave leave to answer in vacation, .but upon the face of this proof, filed in the cause, the failure to acquire jurisdiction of the plaintiff, by that mode, was patent upon the(face of the record, and not a hint is given by any entry of any kind thereafter made that-this special condition of the case, with respect to the plaintiff, over whom the court had then failed to acquire jurisdiction by any process whatever, was changed, in any particular; but it appeared upon the face of the record that the circuit court had not acquired jurisdiction over the plaintiff or his interest in this land up to-the time that this general recital appears in the judgment of partition, which the defendant claims is conclusive and uncontradicted.
If this contention be maintained-, then lands in. Missouri are held by a very frail and uncertain tenure in case of partition; for, it is a fact well known to the profession, that it is too generally the custom of the-clerks, when these entries are made without supervision, to take the style of the ease and the names of the parties from the petition, and introduce the judgment-by the stereotyped phrase, “now come the parties, by their respective attorneys,” without reference to the files to ascertain who has been served and who has not, and without noting what is the actual condition of the-record in respect of those who are named as parties in the petition, so that it can be determined whether, as a. fact, they have really been made parties in the manner provided by law, and, if anybody comes, without noting particularly who comes, or how. But when anybody-does come, in any manner, we have this general recital: “Now come the parties, by their respective attorneys.”
Nevertheless we are cited to a long list of cases as-[277]*277supporting the contention that this general recital in the connection in which it stands upon this record, is uncontradicted and conclusive upon the plaintiff in this ease. These cases will be noticed in their chronological order, and the points decided, bearing on the question, briefly stated.
In Howard v. Thornton, 50 Mo. 291, it was held that: “If the whole record taken together does not show that the court had jurisdiction, over the defendant, then the judgment would be a nullity. But the court had no right to draw this conclusion from the entry of the judgment alone.”
In Rumfelt v. O’Brien, 57 Mo. 569, there was a special finding in the judgment that the defendant, who claimed that the service, was void for want of notice, “had been duly served with process,” made by the court when considering the question whether the defendants had been properly served, and the court said: ‘ ‘It will be observed that nothing is here to show that the several fragments exhibited in evidence constituted the whole record of the Union Bank case. For aught that appears there may have been one or a dozen alias writs or counterparts sent to other counties, and by their means service obtained upon Rumfelt. The judgment solemnly declares that he ‘was duly served with process,’ and this record imports absolute verity.”
Brown v. Woody, 64 Mo. 547, is to the same purport as Howard v. Thornton, supra.
Johnson v. Beazley, 65 Mo. 250, is not in point.
In Cloud v. Inhabitants of Pierce City, 86 Mo. 357, service of process was attempted upon the defendant but the service was void as in the case in hand. Nev-' ertheless the record contained the usual general recital of service of process. The court approved the doctrine laid down in Freeman on Judgments, section 125, that: “No presumptions in support of the judgment are to be [278]*278allowed in opposition to any statement contained in the record. If an act be stated in the roll as having been done in a specified manner, no presumption arises that at some future time, the act was done in a better or more efficient manner. If it appears that the process was served in a particular mode, no other and different service can be presumed. * * * When, therefore,, the record shows that certain steps were taken to procure jurisdiction, and the law does not consider those steps sufficient, the judgment will be regarded as void, for want of jurisdiction over the defendant.”
And it was held that the general recital of service of process contained in the record should not be allowed to show the acquisition of jurisdiction over the defendant, but should only be taken as referring to the invalid service of process shown by the judgment roll.
Upon a like principle it would seem that the general recital in the judgment under consideration “now at this day come the said parties by their respective attorneys,” should be taken as referring only to such of the parties as it appears from the roll the court had acquired jurisdiction over, the parties plaintiff who had brought the suit, and the parties defendant who had been brought into court by process.
And in this respect the present case differs from Crow v. Meyersieck, 88 Mo. 411, in which it was held that the jurisdiction of a probate court over an insane person upon an inquiry of lunacy was not to be defeated by showing the notice to be defective where the record recited “now at this day come the parties, etc.,” since such recital could refer only to the one party who occupied the position of defendant and the party who instituted the proceedings.
It is also to be remembered that in that proceeding the law requires that “the alleged insane person must be notified of the proceeding, unless the probate [279]*279court order such person to be brought before the court, or spread upon the record of its proceedings the reason why such notice or attendance was not required.” 2 R. S. 1889, sec. 5515. So that a recital of appearance in such a case has a special probative force not analogous to a general recital in an ordinary proceeding.
In respect of the matter under consideration, Milner v, Shipley, 94 Mo. 106, simply holds that, if there is any conflict between the recitals in the judgment and in the roll, the latter must control, and Adams v. Cowles, 95 Mo. 501, affirms the principles announced in the preceding cases and holds that a recital in the record that an “action had been commenced by petition and affidavit” was not contradicted by the fact that no affidavit was found upon the roll.
In Higgins v. Beckwith, 102 Mo. 456, it was held that the general recital in the judgment that “notice was duly served on the defendant” is limited to the specific method of service which the roll discloses, and that no jurisdiction was acquired over the defendant by reason of an entry of record that “the court ordered that the cause be continued by agreement,” the court saying, “the appearance of the defendant had never been entered, so far as the record shows, nor that he was present in court, and so it would require a record entry of a more affirmative character to show jurisdiction acquired over him.” The other cases cited do not bear' directly upon the question.
These authorities, instead of militating against, we think go far to sustain the proposition that the appearance recited in the judgment in the partition case should be limited to such of the persons named in the title of the cause as wrere actually made parties in the manner provided by law, and ought not to be extended to include the plaintiff , who was. merely named as a party, but whom the record as a whole shows was [280]*280not in fact a party. The judgment is affirmed,
Black, C. J., and Shekwood and Buegess, JJ,, concurring; Baeclay, Gantt and Maceaelane, JJ., dissenting.