Lewis v. Barnes

199 S.W. 212, 272 Mo. 377, 1917 Mo. LEXIS 160

• Court: Supreme Court of Missouri
• Decided: December 1, 1917
• Status: Published

Opinions

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.