GrRAYES, -J.
— This is a suit in partition; The subject of partition is eighty acres of land in Pemiscot County. The petition is an ordinary one in partition, averring, however, that the plaintiffs are only entitled to one-eighteenth interest each in the lands, which interests had been fixed by judgment in a previous suit. They also averred that partition in kind could not be made without great prejudice to their interests, and asked that the land be sold and the proceeds divided. Defendants, excepting William Hunter, filed a general denial by way of answer. This is the showing-made in the appellant’s abstract, which governs. The abstract says: “The other defendants filed answer and denied generally all tbte averments and allegations in plaintiffs’ petition.” The brief of appellant has a different line of facts as to-these answers, but we must follow the abstract. William Hunter answered as follows:
“Comes now the defendant, William Hunter, and for his special answer herein to plaintiffs’ petition denies that he is a tenant in common with the plaintiffs in and to the lands in question; denies that plaintiff has any right, title or interest whatever in and to the land in questipn; denies that the land in question is subject to partition and states the facts to be that' plaintiff has no right, title, interest or estate in and to said lands, and that said title and all of it in and to said land is well vested in this defendant and that the land is. not subject to partition here, and further answering alleges the facts to be that the plaintiffs l^ave no right, title or interest whatever in and to said land and that the whole title is
well vested in the defendant, and having fully answered prays to go hence without day and with his costs.”
■ The real issues are raised by this answer. The trial court found and adjudged as follows:
“The court finds that at the time of the filing of this suit the plaintiffs, Timothy Pullen, Caroline Reynolds and Ellen Ransdale, and the defendants, R. B. Hart, Linn Hunter and Wm. Hunter were the owners in fee and tenants in common of, in and to the lands involved in this suit and hereinafter described, and at the time the plaintiffs were the owners of a one-eighteenth undivided interest each therein, and that the defendant R. B. Hart was the owner of the fifteen eighteenths undivided interests therein; that the defendant R. B. Hart, on March 3,1911, executed and delivered to defendant Linn Hunter, as trustee for the defendant William Hunter, beneficiary, his certain deed of trust conveying said lands thereby (and other lands) to secure the payment of the sum of $11,200, which deed of trust is recorded in Book 41, at page 640, of the deed records of Pemiscot County, Missouri, and is unsatisfied of record, and that the said defendants Linn Hunter and William Hunter were at the time of the filing of this suit the owners of the interest conveyed by said deed of trust.
“The court finds, however,..that since the filing of this suit the defendant William Hunter claims to have acquired all the right, title and interest of the defendants R. B. Hart and Linn Hunter, in and to said lands by reason of a certain alleged tax sale and deed made by the sheriff of Pemiscot County on April 12, 1917, to J. W. McFarland, and by deed from said McFarland to defendant William Hunter, and that defendant R. B. Hart, in this action, by his answer disclaims all right, title or interest in said lands and defendant Linn Hunter has made no answer whatever.
“The court finds that at the time of this trial the plaintiffs, and the defendant Wm. Hunter, are the owners in fee and the tenants in common of, in and to said lands described as follows, to-wit:
“The east half of the northeast quarter of Section 10 in Township 19 north, Range 12 east, in Pemiscot County, Missouri, and that the respective interests of said parties are as follows:
“Timothy Pullen, Caroline Reynolds and Ellen Ransdale a one-eighteenth undivided interest each, and defendant William Hunter fifteen-eighteenths undivided interest, and the court further finds that said lands cannot be divided in kind without great prejudice to the owners thereof, and that the same should be sold for a division, and the proceeds thereof divided among the parties in interest as found herein by the court.”
Sale was ordered and the proceeds were to be divided as per the terms of this interlocutory decree. Prom such interlocutory judgment in partition, William Hunter has appealed. Pertinent facts and the points made will be noted in the opinion.
Facts
I. Pertinent facts from the Bill of Exceptions may be thus stated: Plaintiffs offered the following record title: (1) Warranty deed from William Hunter and wife to R. B. Hart, for the land involved here and other lands, said deed bearing date of March 3, 1911. (2) Application of R. B. Hart, to the County Court of Pemiscot County for a patent of date October 18,1912, in which application it is averred that one Wm. G. Gray was the purchaser of said land from Pemiscot. County, and had Paid in full therefor, and that he, the said Hart, had by mesne conveyances acquired the title of Gray, and he prayed that a patent be issued to him. (3) Patent from Pemiscot County to Hart, reciting and confirming the matters set out in the application aforesaid.
(4)
Deed of trust of date 3rd day of March, 1911, from Hart to Linn Hunter, trustee for William Hunter; (5). Judgment in Circuit-Court of Pemiscot County, at February Term, on March 11,1915, wherein Timothy Pullen, Caroline Reynolds and Ellen Ransdale were plaintiffs, and R. B. Hart was defendant. In this judgment the court found that each plaintiff was entitled to. a three-
eighteenths interest in the land, but in the judgment proper it is adjudged that they recover of Hart an undivided eleven-eighteenths interest in the land. (6) Interlocutory judgment in partition, in the Circuit Court of Pemiscot County, in which the present three plaintiffs were plaintiffs, and E. B. Hart, defendant. By this interlocutory decree in partition, the court found the plaintiffs to be entitled to a three-eighteenths interest, and Hart to a fifteen-eighteenths interest in the lands. This case seems to have gone no further than the interlocutory judgment, and the present suit seems to have followed, because the deed of trust aforesaid was discovered. .(7) Sheriff’s deed under a judgment in a tax suit by Pierce, Collector, v. R. B. Hart, Linn Hunter, William Hunter, Silas L. Cummins and others, to J. W. McFarland. This tax' suit is of date August 25, 1916. The present plaintiffs were named as parties to that suit, but not served personally, while there was a personal service on E. B. Hart and Linn Hunter. There was also' an order of publication, which if necessary will be noted later. (8) Quitclaim deed from Ji W. McFarland to William Hunter of date April--, 1917. (9) Judgment in case of E. B. Hart (July Term of Pemiscot Circuit Court, 1917) against these plaintiffs and many others. The court found in this judgment that the present plaintiffs had a three-eighteenths interest in -the land, and E. B. Hart had a fifteen-eighteenths interest therein.
The defendant Hunter offered two lines of title, one from the Government to him through the county patent obtained by Hart upon the sale to Gray, and a second line said to be offered to demonstrate that plaintiffs had no title. This last line was offered on the theory that the title in plaintiffs’ ancestors, Edward and Timothy Pullen, was based on a void tax deed by Peter H. Scott to Hina C. Sehult in September, 1883. From these facts the real contentions can be gathered.
Demurrer to Plaintiff's Evidence.
II. At the outset we are met with the serious contention of counsel for respondents that this is a suit at law, and inasmuch as the defendant filed no demurrer to
the evidence at the close of the whole case, he thereby admitted that there was a case to go to the trier of the facts, and cannot now question the findings made. the plaintiffs’ case. We shall not stop to con-This in the face of the fact that defendant did ifie a demurrer to the evidence at the close of sider the question as to whether or not the statutory action in partition is, under the pleadings before us, legal or equitable. Nor will we consider and pass upon the deeper question as to whether or not such statutory proceeding, can be such a legal action as to bring it within the strict rules applicable to actions at law generally. We have ruled that certain questions therein are triable by a jury, if demanded. [Benoist v. Thompson, 121 Mo. 660; Gann v. Thurston, 130 Mo. l. c. 348.]
For the purposes of the present point, we shall proceed upon the theory that the rules applicable to actions at law generally apply to this case. This we do without discussing anew the questions supra. The defendant did file a demurrer to the evidence at the close of plaintiffs’ case, and such being overruled he put in his own case. Can he now urge that the evidence as a whole shows' no case made by plaintiffs?' To this we unhesitatingly say, Yes. There has been some loose language used in the books about waiving the demurrer by refus-. ing to stand upon it, and by putting in the evidence for defendant. Some such language appears in the cases cited by respondents, but we prefer to go to the basic ruling upon the question. When we do that, we are forced to rule that the only thing waived is the right to insist that plaintiffs’ evidence, standing alone, fails to make a case. In other words, in strict law actions, if the defendant demurs upon the close of plaintiff’s case, and does not stand upon such demurrer, but puts in his own case, he only takes the chances of aiding plaintiff’s facts, by his own facts. He does not thereby lose the right to insist, without further demurrer, that the whole evidence, introduced by both sides, fails to disclose a case for plaintiff. In Bowen v. Ry. Co., 95 Mo. l. c. 275, Black,
J. (who always wrote cautiously and clearly), said: “Thus far we have considered the evidence as it stood at the close of the case. A demurrer was interposed at the close of the plaintiff’s evidence,,which was overruled. If, after making such a demurrer, the defendant puts in his evidence, and the evidence as a whole entitles the plaintiff to go to the jury, the demurrer to the plaintiff’s evidence will not be considered here. This is true though the demurrer should have been sustained, as the case stood, when it was interposed. ’ ’ This is far from saying, that the defendant cannot urge that the whole evidence fails to show a case for plaintiff. To like effect is Guenther v. Ry. Co., 95 Mo. l. c. 289, whereat this court, through Brace, J., said: ‘ ‘ The defendant is not in a position to urge the overruling of the demurrer to the evidence, as reversible error, having waived the same by putting in its own evidence, and the case will have to be examined and determined
upon the whole evidence in the case.
[Bowen v. Railroad, ante, p. 268.] ” This ruling also is far from saying that defendant is precluded from saying that upon the whole evidence plaintiff has no ease. On the contrary, it is express authority for the proposition, that if defendant, in a law suit, has demurred to the evidence at the close of plaintiffs ’ case, he will be permitted to argue at the end that on all the evidence (both for plaintiff and defendant) the facts fail to make out a case for the plaintiff. He has, by putting in his evidence, only increased the plaintiff’s chance of showing a case upon the facts, but has not precluded himself from urging that on the whole evidence no case is made for plaintiff.
Shortly following the two cases, supra, Ray, C. J., in McPherson v. Ry. Co., 97 Mo. l. c. 255, said: “At the conclusion of the evidence in plaintiff’s behalf, an instruction in the nature of a demurrer to the evidence was asked by defendant and was refused by the court, and this action is the first ground of error complained of in this court. By putting in its own evidence, defendant thereby waived its exception in this behalf, except that the court may consider the same in connection with all
"the evidence in the cause, as we have recently held in the cases of Bowen v. Railroad, 95 Mo. 268, and Guenther v. Railroad, 95 Mo. 288.”
In the foregoing we have this court definitely saying just what we meant by the two cases in 95 Mo. supra, and it accords with our present views, but is adverse to respondents’ contention in the instant case. A like holding is made in Hilz v. Ry. Co., 101 Mo. l. c. 42, whereat it is said: “As to the objection that the plaintiff’s testimony did not make a prima-facie case, and that therefore the demurrer to the evidence should have been sustained, it is sufficient to say, that defendant waived said objection by introducing its own evidence, and that the evidence in such cases will be considered as a whole in passing on objections of this character. Our recent decisions so hold. [Bowen v. Railroad, 95 Mo. 268; Guenther v. Railroad, 95 Mo. 286; McPherson v. Railroad, 97 Mo. 253.]”
The case felied upon by respondents is that of Riley v. O’Kelley, 250 Mo. l. c. 660. We hardly think this case goes as far as respondents contend. It cites the Hilz Case, supra, and the writer must have had in mind what we have quoted from this Hilz Case. Hpon the whole we do not agree to the contention of counsel for respondents in the matter now considered. In pure law cases, if defendant demurs at the close of the plaintiff’s case, he will not be precluded from urging in this court that on the whole evidence no ease was made for plaintiff, although he may not have filed a second demurrer to the evidence at the close of the case. In proceeding after demurrer is overruled he only takes the chance of aiding the plaintiff’s case, but loses no other right.
fo^New Trial,
III. It is next urged that the motion for new trial is not broad enough to cover the alleged error in refusing to sustain this demurrer. The demurrer read: ‘ ‘ The defendant, William Hunter, demurs to the testimony offered on behalf of plaintiff and moves the court to render judg
ment against plaintiff and in favor of de-' iendant, William Hunter.” It will be noted that it is not in the.form of an instruction, but is a demurrer, in fact, to the sufficiency of the. evidence. No instructions were asked in tbe case by either side. The court made a finding of facts, which was included in its judgment. This motion for new trial is short, and we copy it as follows:
“Comes now the defendant, William Hunter, and moves the court to grant him a new trial for the following reasons, to-wit:
“1. Because the judgment and finding of the court is against the evidence and the weight of the evidence.
“2. Because the judgment and finding is for the wrong party and is against the law and the evidence.
“3. . Because the court erred in admitting incompetent, immaterial ■ and irrelevant testimony on part of plaintiff, over defendant’s objection and exception at the time.
“4. Because the court-erred in refusing competent,relevant and material evidence offered by defendant.
“5. Because the plaintiffs had no title to partition, and all the title is in defendant.
“6. Because all parties were not in court and even under plaintiffs’ theory partition can not be had.”
We are inclined to view that this motion sufficiently raises the question. It does not specifically mention the demurrer, supra, but there are at least two or three grounds (1, 2 and 5) which in substance-cover the matter.
Partitioi~: Plaintiff's Title: Cornmon Source.
IV. It will be noticed that the plaintiffs put in evidence only a partial proof of titilé. They begin with a warranty deed from William Hunter to R. B. Hart. Plaintiffs in partition must prove their title, if such is put in issue, just as title is ordinarily proven. however, that such plaintiff must necesTheir title was put in issue in this case by the answer of 1-lunter. Wedo not mean, sarily go back -to the Government in showing title. If
there be a common source of title (1) admitted, (2) assumed, or (3) proven, then in either case they can rest upon this common source, and make their proof of title from such common' source forward. [Harrison Machine Works v. Bowers, 200 Mo. l. c. 235; Nall v. Conover, 223 Mo. l. c. 488.]
In this case there was no admitted common source of title, nor did the parties assume a common source of title. The wholé trend of the trial shows that defendant was not proceeding upon the theory that there was a common source of title. In such case there is and can be no assumed common source of title. The question then is, have plaintiffs proven a common source of title? If they have not their caáe fails, becausé absent a common source of title (1)' agreed upon, (2) assumed or (3) proven, they must trace their title back to its beginning. [Nall v. Conover, 223 Mo. l. c. 488, supra.]
Under the status of the record in the present case, as discussed supra, it will suffice if' all the evidence (plaintiffs’ and defendant’s) shows a common source of title. By common source of title we mean that both parties claim through the same person or persons. If one party claims through a single individual, and the other claims through two or more individuals (one of whom is the same through whom the first party claims) there is no common source of title. [Nall v. Conover, 223 Mo. l. c. 494.]
We shall take the paper title of the plaintiffs first in determining whether or not there is a proven common source of title. Under plaintiffs’ proof that common source must be either Hunter himself, or someone in the proven chain after Hunter’s first deed. This because plaintiffs started their record title with a warranty deed from William Hunter to R. B. Hart, After this deed to Hart from Hunter, it appears that Hart in an effort, to perfect his record title procured the patent from Pemiscot County. When he got this patent from the county, his title then ran: United States to State of Missouri; State of Missouri to Pemiscot. County; Pemiscot Coun
ty to R. B. Hart. This it is argued was done by Hart under his deed from Hunter. It might have been so done, and it might not have been so done. Hart might, have discovered that the Hunter deed (although a warranty) conveyed to him no title, and acted upon that theory. What showing he made to the county court is not before us, except as the recitations in the patent speak. This recitation is to the effect that Hart had acquired the equitable title of William G. Gray, who "had bought and paid for the land. There is no showing that Hunter ever had this Gray equitable title. Nor is there a showing how Hart acquired it, save the bare recitation in the patent. It follows that neither the Hunter deed, the Hart application for a patent, ñor the county patent itself, shows a common source of title as between these parties, plaintiffs and defendant Hunter. We are taking the instruments as we come to them. The effect of Hunter’s warranty may become pertinent later. Up to the present point the' plaintiffs’ evidence fails to show a common source.
The next link in the title is the trust deed back from R. B. Hart to Linn Hunter for the benefit of William Hunter, covering this land and other lands. Within itself it shows no common source of title.
Next we have the judgment of March 15, 1915, in the case of Timothy Pullen, Caroline Reynolds and Ellen Ransdale v. R. B. Hart, wherein it was found that these plaintiffs (who are the present plaintiffs) had an interest in this land. This conveyance, by judgment, might be urged as material in showing common source of title in Hart, but not otherwise. But does it do this? We think not. It was a suit to quiet title. The plaintiffs in such suit (plaintiffs here) were not qlaiming under Hart, but against him. Common source of title can not be shown in that way.
The next link is the interlocutory decree in partition obtained by the present plaintiffs against Hart on April 13th, 1916. This interlocutory decree in partition was never made final. It was abandoned, and the present suit
filed. The interlocutory decree was never appealed from, and either party might have appealed from it, but could await the final decree, -if they so desired. No final decree was ever entered. This is of but. little value in plaintiffs’ 'chain of title. It was based upon the decree to quiet title, supra, and was no more evidence of a common source of title than was the decree tó quiet title.
The next link is the sheriff’s tax deed in case of Pierce, Collector, v. Hart et al. This recites a tax judgment against a number of persons. William Hunter was sued, but not personally served. Plaintiffs were sued, but not personally served. John W. McFarland was the purchaser at this sale, and the interests, or alleged interests of divers persons passed to him by this deed. There was an order of publication, as well as a summons in this tax suit. This publication, among other things, recites:
“. . . and shows to the clerk by said petition that among other things plaintiff verily believes that there are persons, and there are persons, interested in, or who claim to be interested in the subject-matter of the petition herein, whose names he cannot insert therein because they are unknown to him; that the interest of said unknown persons so far as known to him, are derived from Silas Cummins, Horace S. Stephens, John M. Cummins, John T. Scott, John L. Rentch, the persons to whom the title to the east half of the northeast quarter of Section 10, Township 19, Range 12 east, and the northeast quarter of the southeast, quarter of Section 10, Township 19, Range 12 east, the land described in said petition, was last transferred or vested, and that such unknown persons derive or claim to derive their title and claim to the land in question, as described in plaintiff’s petition, as heirs, consorts, devisees, donees, alienees, immediate, mesne, remote, voluntary or involuntary grantees of the said Silas Cummins, Horace S. Stephens, John M. Cummins, John T. Scott, John L. Rentch.
“Whereupon it is ordered by the clerk in vacation that said unknown persons, to-wit, the unknown heirs, consorts, devisees, donees, alienees, immediate, mesne,
remote, voluntary, or involuntary grantees of the said Silas Cummins, Horace S. Stephens, John M. Cummins, John T. Scott, John L. Rentch, and that the said non^resident defendants be notified by publication that plaintiff has commenced a suit against them in this, court, the' object and general nature of which is to enforce the lien of the State of Missouri for .certain state taxes, county taxes, school fund taxes, drainage taxes, jail taxes and road taxes, all of which are delinquent, due and owing and unpaid in the sum of and for the yea'rs set out below. . .
To say the least, this deed to McFarland is no evidence of a common source of title, because said McFarland was claiming title through divers persons, and it might be urged that he claimed some interest through plaintiffs themselves. But it suffices to say that his deed was basis for a claim of title through more parties than Hunter and Hart, and was therefore no evidence of a common source. [Nall v. Conover, 223 Mo. l. c. 494, supra.]
The next link is a deed from McFarland to Hunter, which as evidence of a common ource of title can have no more probative force than the deed to McFarland. This because it transferred to Hunter the same diverse interests which McFarland received by his tax deed.
The plaintiffs’ evidence fails to show a common source, barring the effect of Hunter’s warranty deed, which we will take later.
Warranty Deed: After-accluired Title.
V. The most vigorously made contention of the respondents, is that as Hunter made a warranty deed to Hart, he, Hunter, could not later acquire a good title for himself, but such good title, if later acquired, would inure to his grantee, Plart, or his grantees. It may be conceded, without deciding, if Hunter, sold by warranty deed to Hart, at a time when he bad no title, and later he procured from another the title, that such title would inure to Hart, or his grantees, yet we fail to see how this helps the plaintiffs. They are not grantees of Hart.
Their only connection with Hart has been in suits against him, wherein instead of claiming throug’h inure to them under any circumstances Hart, they claimed against him. The after-acquired title of Hunter would not made to appear in this record. The tax judgment under which Hunter bought in 1917, was against Hart, and the judgment in the instant case says Hart disclaimed interest in the land. Hunter, in fact, bought Hart’s interest, as well as other interests, if any, at this tax sale. Would Hunter’s purchase of Hart’s interest inure to Hapt under the warranty deed previously given? Hart, did no't think so when he disclaimed title, nor do we think the law so runs. It is the title procured from an outside source which inures to a grantee under a warrant of title, and not the title coming from the grantee himself in such waranty deed. However, this is beside the question, because these plaintiffs were not grantees of Hart, and no title could inure to them by reason of the warranty deed from Hunter to Hart. Hunter was no party to any suit wherein these plaintiffs were adjudged an interest in these lands, and of course was in no way bound by such judgments. As to these plaintiffs he was and is free to assert his rights, so far as the case made by them shows.
No Common Source.
VI. The evidence for the defendant Hunter did not help the plaintiffs in the proof of a common source ’of title. Its general character we have mentioned. First it tended to show a record title from the Government to Hunter, including of course the tax sale against Hart. It further tended to show that plaintiffs’ ancestors got their claim of title through a void sheriff’s deed, and that plaintiffs were without title. So that the matter of a common source of title. Nor evidence of defendant did not help the does the rebuttal evidence, for plaintiffs, in the form of the records and deed in a tax proceeding, wherein Hunter and Howell were purchasers, and a deed from Howell to Hunter, assist the plaintiffs in proving a common source
of title. Absent a proven common source of title, as we are forced to find, the present judgment is wrong.
The judgment is therefore reversed, and the cause remanded to be proceeded with in accordance with the views herein expressed.
All concur.