Simms v. Thompson

236 S.W. 876, 291 Mo. 493, 1922 Mo. LEXIS 244

• Court: Supreme Court of Missouri
• Decided: January 21, 1922
• Status: Published

Opinions

HIGBEE, J.

Commissioner Small states the facts in this case in his report, filed in Division'One of this Court, as follows: *

‘ ‘ This is a proceeding by appellants by motion for a writ in the nature of a writ of coram nobis to set aside a judgment to quiet title rendered against them upon ser-vicer by publication as unknown defendants.

“Appellants are the children of Frances Eveline McFadin who died on the 26th day of July, 1916, and the grandchildren of Minitree Catron, who died in 1862. By his will, duly probated and recorded in the office of the Probate Clerk in Lafayette County in 1862 (hut never recorded in Carroll County), said Catron devised the lands involved in this case to his daughter, said Frances Eveline McFadin, during her natural life, with remainder in fee to all of her children. She had then living four children, the oldest seven years of age, and after said Catron’s death'four more children were horn to her. Two of said children died, leaving the appellants as their heirs. In the year 1867, said Frances Eveline Mc-Fadin, in a deed joined in by her husband, John Mc-Fadin, conveyed said'land to Mary A. Simms by deed containing full covenants of warranty and for the consideration of one thousand dollars. Said Mary A. Simms died in 1887", leaving her husband and her children, John W. Simmé and others, designated as the plaintiffs in this cause, as her heirs. On July 22, 1909, the plaintiffs, as such: heirs (their father also then being deceased), brought suit to quiet title in the Circuit Court of Carroll Couniy against the unknown heirs and devisees of Mini-tree/ Catron, further alleging that said unknown defendants were non-residents and lived outside of the jétate of Missouri, and could not be served with the ordinary process of law. Judgment was obtained in said cause by default, September 28, 1909. Mrs. McFadin, the mother of the appellants, dying in 1916, the appellants on the 17th day of September, 1917, filed in said suit to quiet title, their motion, now before us, for a writ in the nature of a writ of coram nobis, asking the court to set aside said judgment for errors of fact not appearing on the record, of which, had the court been advised, it would not have rendered judgment against appellants in said cause.

“Such facts, as charged in said motion, are substantially as follows: That the petition in the suit to quiet title charged that the unknown devisees of said Catron were all non-residents of Missouri, so that the ordinary process of law conld not be served upon them in this Stale. Whereas, the appellants were devisees of said Catron, and as snch owned the remainder in fee in said real estate, and at the time said petition was filed and said judgment was rendered, and for more than 30 years prior thereto, had resided in said Lafayette County, Missouri, except one of the appellants, who then and for many years before, lived in Jackson County, Missouri. That they were all, and for many years had been, well known people in said Lafayette and Jackson counties. That the patents for said land were issued by the United States to their said grandfather, Catron, in 1836, and described him as of Lafayette County, Missouri, where he then lived, and continued to live'ug to the time of his death in 1862, and where the same year, 1862, his will, devising the remainder in’ fee to appellants, after the termination of the life estate of their mother, the said Prances Eveline McPadin, was duly probated and recorded in the office of the Clerk of the-Probáte Court of said Lafayette County. That by reason theiteof, the plaintiffs were charged with full knowledge of! appellants ’ title, at and long before the institution o? said suit to quiet title. And, furthermore,’ as a matter ofsfact, the plaintiffs, at and before bringing such suit, knei^ or by the exercise of due diligence in making inquiries, cohid have ascertained the names and places of residence of ap-\ pellants, and the extent and nature .of their estaté in saidl^ lands. But that said plaintiffs brought suit fraudulently against the devisees of said Catron as non-resident unknown parties. That appellants had no notice or knowledge of said suit until just before the filing of their mo. tion herein. That by reason of the facts alleged in said motion not appearing from the record or upon the trial of said cause, the court erroneously tendered judgment against appellants therein, and rendered it without jurisdiction which it would not have done had it known of the existence of such facts.

“After the filing of appellants’ said motion, the respondents-, John W. Simms et ah, plaintiffs in -said snit to qniet title, filed a motion to overrule the motion of appellants, substantially for the following reasons: That the facts stated in appellants’ motion did not entitle them to any relief; and further setting up that Mary A. Simms, their mother, in 1867, purchased said property, paying full value therefor in good faith, believing she was obtaining a perfect title from Prances Eveline McPadin, and receiving a general warranty deed therefor. That their said mother died in 1887, intestate, leaving their father and the plaintiffs as her heirs, and that from the date of said purchase in 1867, their parents during their lifetime, and the plaintiffs thereafter until they sold to the respondents, Wilson, in 1911, were in open, notorious and adverse possession of said property, claiming to own the same absolutely and against the whole world. But, that in 1909, they had the records in Carroll-County examined and found that there was no deed from the paten-tee, Mini tree Catron, to their mother’s grantor, Prances Eveline McPadin, or anyone else; that, therefore, they brought suit to quiet title, making the heirs and dev-isees of said Catron parties, as unknown defendants. That they were unknown to plaintiffs, and that interests they had in said property, if any, were unknown to them. That during all of said years that they and their ancestors had been in possession of and claiming to own said property, they never heard of any of the plaintiffs, nor of any other persons, making any claim to said-property; that they knew nothing of the will or residence of said Catron; that his said will was never recorded in Carroll County.

“Plaintiffs further in their said motion, set out the entire record of the proceedings in said suit to quiet title, and alleged, that the judgment therein was binding upon the appellants and all other devisees of said Catron. They, however, admit in their said motion, that appellants were the devisees of said Catron, and do not deny that they all lived in Lafayette and Jackson Counties, Missouri, were well known in said counties, and bad no notice of said suit to quiet title, as alleged in appellants ’ motion.

“Respondents James L. Wilson, et al., appeared in said cause, and- filed a motion to overrule a motion filed by appellants, in substance tbe same as tbat of plaintiffs John W. Simms et al., with the addition, that they, since said judgment quieting title was rendered, had purchased the property from the plaintiffs in said cause; that they were innocent purchasers, had no knowledge or notice of any of the matters alleged in appellants’ motion, and paid full value for the property.

“On the trial of these motions, appellants’ evidence tended to prove their title as devisees -of their grandfather, Minitree Catron, and that his will was duly probated and recorded in the office of the Probate Clerk in Lafayette County on August 26, 1862, and their residence in Lafayette and Jackson counties in this State. Appellants’ evidence further tended to prove that they were well known in said Lafayette and Jackson counties for many years before said suit to quiet title was instituted, all as alleged in their said motion, and that they had no notice whatever of the institution of said suit to quiet title or the rendition of judgment therein, until the year after their mother’s death, when their motion-was filed in 1917.

‘ ‘ The evidence for the plaintiffs-respondents tended to show that they never knew there was any defect in their title or their mother’s title, until just prior to the commencement of the suit to quiet title, when they discovered that there was a missing link. The abstract they procured showed the entry of Minitree Catron in 1836, but said entry left his place of residence blank; a bond for title from John McFadin, the father of appellants, to one Edward Hamill in 1865, describing the parties as of Lafayette County, Missouri; and a warranty deed from appellants"’ mother, Frances Eveline McFadin, to Mary A. Simms, the mother of the plaintiffs, in 1867, for the consideration of $1000, describing the grantor as of Lafayette County. All of these documents were duly recorded and for many years had been in said Carroll County before said suit to quiet title was instituted. The patents to Minitree Catron were recorded in 1838, in the General Land Office at Washington, D. C., but never in Carroll County. There was no conveyance nor will of said Minitree Catron of record in said Carroll County, or shown upon said abstract. The evidence of plaintiffs further showed that they never made any inquiry in Lafayette County as to any will that might have been made by said Catron and probated and of record in the probate court of that county, and never inquired of any one as to the names or whereabouts of the heirs or devisees of said Catron; that they knew nothing .and heard nothing of them during the fifty years that they and their parents had lived on and claimed the property; that they and their parents, since their mother obtained her warranty deed in 1867 from Mrs. McFadin, were in undisturbed possession of said property, claiming absolute ownership thereof, and always supposed that her title and their title as her heirs was good until the abstract showed the missing link, just before they brought their suit to quiet title; that at the trial and before judgment was rendered quieting title in them, the court heard evidence showing the plaintiffs’ long possession and title and that the whereabouts of said Catron and the heirs and devisees of said Catron and their interests, if any, in the property, were unknown to the plaintiffs.

“The evidence of the intervenors and respondents Wilson and others showed that they knew nothing as to the appellants or their title, except what was disclosed by the records of Carroll County and the records in the suit to quiet title, and that they purchased in 1911 the property and paid a valuable consideration therefor from the plaintiffs after judgment was rendered quieting title in them.

“The petition to quiet title, filed on said 22nd day of July, 1909, is as follows:

“‘State of Missouri, County of Carroll. In the Circuit Court, September Term, 1909. John W. Simms, Catherine Boschert, Elizabeth Christopher and Margaret Flanagan, plaintiffs, vs. Robert Thompson, Bettie G-rider, Callie Wilson, Minitree Catron, Edward Hamill, John Potter; the unknown wife or widow and the unknown heirs, the unknown descendents, the unknown devisees and the unknown assigns of Minitree Catron; the unknown wife or widow and the unknown heirs, the unknown descendents, and the unknown devisees and the unknown assigns of Edward Hamill; the unknown wife or widow and the unknown descendents, the unknown heirs, the unknown devisees and the unknown assigns of John Potter; the unknown widow, the unknown heirs, the unknown descendents, the unknown devisees and the unknown assigns of William J. Todd, deceased, defendants.

“ ‘Now come plaintiffs and for their cause of action state that they are the owners in fee simple and are in peaceable possession of the following described land in Carroll County, Missouri, to-wit:

“ ‘The east half of the northeast quarter of section one in township fifty-one of range twenty-five; also the east half of the southeast quarter of section one in township fifty-one of range twenty-five; also the southeast quarter of the southwest quarter of section thirty-one in township fifty-two of range twenty-four; also the northwest quarter of the northwest quarter of section six in township fifty-one of range twenty-four in Carroll County, Missouri; that plaintiff John W. Simms is the owner of an undivided nine-twenty-fourths of said land, and plaintiffs Catherine Boschert, Elizabeth Christopher and Margaret Flanagan are each entitled to an undivided five-twenty-fourths of said land.

“ ‘Plaintiffs further state that the defendants claim some title, interest or estate in said premises adverse to that of plaintiff, the nature or character of said title, interest or estate which defendants or any of them claim cannot be more definitely stated (except as is herein after done) because it is unknown to plaintiffs except that it is adverse to plaintiffs.

“ ‘Plaintiffs further state that there are persons interested in the subject-matter of this petition whose names plaintiffs cannot insert because they are unknown to plaintiffs, said unknown persons being the defendants herein designated and referred to in caption as unknown, to-wit, the unknown wife or widow and the unknown heirs, the unknown descendents, the unknown devisees and the unknown assigns of each of the following named persons, respectively: Minitree Catron, Edward Hamilk, John Potter and William J. Todd; that the title, interest or estate which said unknown persons (defendants) claim or might claim in said land or any part thereof is such as they derived by the statutes of descent and distribution, of dower and homestead of the State of Missouri, by devise, by deed of conveyance or by assignment from said persons respectively, to-wit, Mini-tree Catron, Edward Hamill, John Potter and William J. Todd. Plaintiffs cannot further describe the interest of said unknown persons, defendants herein, nor how said interest, if any, was derived, because such is unknown to plaintiffs and plaintiffs have described herein the right, title, interest and estate, if any, in said land, of the said unknown defendants and how said interest, title and estate was derived so far as plaintiffs’ knowledge extends.

“ ‘Plaintiffs further state that all of the defendants (except Robert Thompson, Bettie Grider, Callie Wilson) including the defendants herein described as unknown, are non-residents of the State of .Missouri, residing outside of the State of Missouri, so that the ordinary process of law cannot be served upon them within this State.

“ ‘“Wherefore, plaintiffs pray for an order of publication against the non-resident and unknown defendants, notifying them of the pendency of this petition, the nature and character thereof, and that the court hear and determine this cause and by its judgment andi decree ascertain and determine the estate,_ title, and in.- terest of. the parties, plaintiffs and defendants, and ascertain and determine the title and estate of plaintiffs in and to said land to be as herein set forth, and by its judgment and decree to estop and debar defendants and each of them from claiming any interest in and to said land or any part thereof.

“ ‘State of Missouri, Connty of Carroll.

“ ‘John W. Simms having been duly sworn states in his own behalf and on behalf mf his co-plaintiffs herein that the allegations of the above and foregoing petition are true.

‘ ‘ ‘ JohN W. Simms,-

“ ‘In his own behalf and in behalf of his co-plaintiffs herein.

‘Sworn and subscribed to before me, a notary public within and for Carroll County, Missouri, this 22nd day of July, 1909. My term expires July 27, 1910. Witness my hand and official seal at Norborne, Mo., July 22, 1909.

“ ‘W. A. FeaNkeN.

“ ‘We hereby designate the Carrollton Democrat of Carrollton, Missouri, a weekly newspaper of general circulation, published within Carroll County, and which we designate as most likely to give notice to the non-resident and unknown defendants.

“ ‘W. A. Franken, Attorney for Plaintiffs, John W. Simms, Catherine Boschert, Elizabeth Christopher, Margaret Flanagan.’

“The order of publication follows the language of the petition and need not tó be set out.

“The judgment, rendered,on the 28th day of September, 1909, omitting the caption which is the same as the caption in the petition, is as follows:

“ ‘Now on this day come plaintiffs, but the defendants and each of them, although duly summoned according to law, come not but make default, and this cause coming on for hearing, the court finds that the order of publication heretofore entered by the clerk of this court in vacation against all of the defendants named and referred to in the caption, except Robert Thompson, Bettie Grider and Callie Wilson, was duly published in the Carrollton Democrat, a weekly newspaper published in the town of Carrollton, Carroll County, Missouri, for four successive weeks, the last insertion being more than thirty days before this September term of this court, and that each' and all of said defendants including Robert Thompson, Callie Wilson and Bettie Grider were duly and legally served with process more than thirty days before the first day of this September term of this court.

“ ‘The court further finds that this is a proceeding under Section 650 of the Revised Statutes of 1899 of the laws of Missouri and upon the evidence adduced by plaintiffs, the court finds that plaintiffs, Catherine Bos-chert, John W. Simms, Elizabeth Christopher and Margaret Flanagan are the absolute owners in fee simple of the following described land situate and being in Carroll County, Missouri, to-wit [Description same as in the petition]; that plaintiff John W. Simms is the owner of an undivided nine-twenty-fourths of said land, and that plaintiffs, Catherine Boschert, Elizabeth Christopher and Margaret Flanagan are each entitled to an undivided five-twenty-fourths of said land; and the court further finds that the defendants, Robert Thompson, Bettie Grider, Callie Wilson, Minitree Catron, Edward Hamill, John Potter, the unknown wife or widow and the unknown heirs, the unknown descendents, the unknown devisees and the unknown assigns of Minitree Catron, the unknown wife or widow and the unknown heirs, the unknown descendants, the unknown devisees, and the unknown assigns of William J. Todd, deceased, and each and all of them have no title, interest or estate in said land or any part thereof.

"' The court doth here ascertain and determine that plaintiffs are the owners of said land and each and every part thereof, in the shares as aforesaid, absolutely and in fee simple, and that neither the defendants nor any of them have any title, interest or estate in or to said land or any part thereof. And the conrt doth further adjudge and decree that the defendants and each of them he estopped and debarred from ever setting up or claiming any title, interest in or to said land or to any part thereof.

“ ‘The court doth further adjudge that the plaintiff pay the costs of this suit. ’

“No instructions were asked or given.

“After hearing the evidence on the several motions, the court overruled appellants’ motion to set aside said judgment, and found the facts stated in the motions of respondents Simms et al. and Wilson et al. to be true. Also found that appellants are the descendants and devi-sees of Minitree Catron, the original patentee of the land; that his will was duly probated in the probate court of Lafayette County, Missouri, August 26, 1862; hut that no copy thereof was filed in the Recorder of Deeds, office of Carroll County until 1916; and that neither the plaintiffs’ ancestor nor the plaintiffs themselves, nor the said Wilson to whom they sold the land in 1911, had any knowledge or notice of the existence of said will, nor of facts sufficient to put them on inquiry in regard thereto, until 1916; and no knowledge or notice of or concerning said Minitree. Catron, nor of his residence, except that he was the original patentee of said land, nor of the residence, whereabouts or interests of his devisees, nor of the existence of his will. The court also found that proof in accordance with the facts known by the plaintiffs at the time was offered and heard by the court upon the trial of the case.

“No motion for new trial was filed, but the appellants in due time filed a hill of exceptions, and appealed from the order of the court overruling their said motion to this court.”

I. In this State a motion to vacate a judgment for error ,of fact, and not for patent error of record, supported by evidence' dehors the record, takes the place of the common-law writ of error coram nobis, Motion to Vacate Judgment. and is in the nature of an independent and direct attack upon the judgment of the court committing the error. [State ex rel. v. Riley, 219 Mo. 667, 695.] The motion is in the nature of an application for a writ of errQr co'ram qiobis, and is in the nature of a pleading, and does not have to be preserved by a bill of exceptions. [Jeude v. Sims, 258 Mo. 26, 44.] Issues must be made up under a writ of error àoram qiobis, and these must be tried, if necessary by a jury; but the writ does not open up the whole case for a new trial, but only those points and questions raised by the application for it. [23 Cyc. 885 (4).] The motions filed by the respondents set up their defenses and, with the movents' reply, made up the issues. These motions, therefore, were in the nature of answers and No Motion for New Trial. are p'eadings in the case. This being an independent proeeeding and not an adjunct to the original action, we cannot review matters of exception in the absence of a motion for a new trial. There is, therefore, nothing before us but the record proper. [Jefferson City v. Wells, 263 Mo. 231, 250; Hemm v. Juede, 153 Mo. App. 259, 267.]

It may clarify the case to consider the relief that may be had in a proceeding of this nature. In Cross v. Gould, 131 Mo. App. 585, 597, Nortoni, J., speaking for the court, said:

"A writ of error coram `nobis is parcel of that procedure which came to us with the common law. It issues out of and for the purpose of review by the sam~ court in which the record lies and predicates upon errors of fact as contradistinguished from errors of law. Besides for error in process -through the default of the clerk (Bronson v. Schulten, 104 U. S. 410; Tidd's Practice (4 Am. Ed.) sec. 1137), the writ would lie at common law when the court had proceeded in a case as though a fact which was material to its right to proceed, existed, when it did not exist, and when the absence of the fact assumed to exist, entirely defeated the power of the court to attain a valid result in its proceeding. [Citing cases.]

“It may be taken as a proposition settled entirely beyond controversy in the law of this country and of England that the writ of error coram nobis does not go to errors arising on facts submitted to a jury, referee, or to the court sitting as a jury to try the issues of fact. [Bronson v. Schulten, supra; 5 Ency. Pl. & Pr., 736.] Nor will this writ lie for the purpose of correcting errors of law.”

The learned jurist cited instances: a judgment rendered against an insane person without the intervention of a guardian; where a defendant dies after service of process and before judgment; where a married woman was sued without her husband being joined and judgment rendered against her (before the Married Woman’s Act); judgment against an infant without a guardian ad litem, etc.

In Jeude v. Sims, 258 Mo. 26, 40, Walker, J., delivering the opinion of Court in Banc said:

“At common law writs of error coram nobis were writs granted by the court rendering the judgment for the purpose of correcting some error of fact. [Tidd’s Practice, p. 1136.] The fact must be such a fact, that had it been known at the time of the rendition of the judgment, such judgment would not have been entered. It must be a fact directly connected with the case in which the judgment was entered, and a fact wrongly, considered in the entry of the judgment which is sought to be corrected by the writ of error coram nobis. To illustrate, the court enters a judgment against a dead person after service, on the theory that he is still alive, or against a minor thinking such minor was an adult. In other words, the erroneous fact must be one which entered into the very makeup of the judgment sought to be overruled and set aside by the writ, and the real fact sought to be established upon the hearing of the writ must be one which would have prevented the entry of the judgment had it been known to the court. [State v. Stanley, 225 Mo. l. c. 534; State ex rel. v. Riley, 219 Mo. 667.] In the Stanley Case, supra, this court said: ‘But again, this writ is only allowed to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which without any fault or negligence of the party was not presented to the court.’ The motion in this case simply sets up that the plaintiffs fraudulently misled counsel for the defendants as to the time of the trial of the cause. Whilst such conduct, if shown upon a trial by bill in equity to set aside the judgment for fraud, would perhaps be good, yet we fail to find any case wherein such fact is a ground for the common law writ of error coram. nobis. In our practice a motion is considered as an application for such a writ. The writ being heard in the .same court which issues it, is usually never issued at all, but the matter is determined upon a hearing of the matters raised in the application (in this State in the motion) as if a formal writ had been issued. [5 Ency. Pl. & Pr., 36.] ”

Again, in 23 Cyc. 883 D:

“1. This is a writ which lies in the same court which rendered a judgment, and brings its own judgment before it for review and reversal or modification, on account of some error of fact, not of law, affecting the validity and regularity of the proceedings, and which was not brought into the issue. It is not a .writ of right. It can be granted only on a showing of cause, and then it is in the discretion of the court whether, on the affidavits presented, to allow the writ or not, and its decision will not be reviewed by an appellate court. In most of the states, if not abolished by statute, it has become obsolete, being superseded by the more speedy and efficacious remedy by motion in the same court.

“2. Error coram nobis does not lie to correct any error of law, its office being confined strictly to errors of fact. Only such errors can be assigned as are consistent with the record before the court, and the court will not look into the cause of action on which the judgment was rendered, or consider any facts which might have been presented to the court on the trial of the cause, and still less any facts which were put in issue and adjudicated upon the trial. But the writ may issue where there is a vital jurisdictional defect not apparent on the face of the record, or on account of the death of a party before judgment, or the infancy, insanity, or coverture of defendant, such disability not having’ been brought to the notice of the court before judgment, or where a default has been irregularly entered against a party not legally in default, or has been taken against him by fraud, accident, or mistake, without fault on his part. ’ ’

It will be seen, however, that relief is not granted in this State on the ground of fraud, and doubtless would not be on the ground of accident or mistake, those being distinct grounds of relief in equity. Jeude v. Sims, supra, and Cross v. Could, supra, in that respect are therefore disapproved.

II. The principal error of fact alleged in the motion is that the petition in the suit to quiet title charged Immaterial Fact. that the unknown heirs and devisees of Mini-^ree Catron were non-residents of Missouri, so that the ordinary process of law could not be served upon them, whereas they were all well known residents of the counties of Jackson and Lafayette and had been for thirty years, and were the owners of the fee in remainder.

Minitree Catron died in the year 1862. There was no deed or will on record in Carroll County by which he conveyed or devised the land in suit. Eveline Mc-Fadin and her husband had conveyed the land by a warranty deed to Mary Simms in 1867. She and her children, the respondents, had had exclusive possession, claiming title in fee, fom 1867 until July, 1907, when it was discovered that there was no deed on record from Minitree Catron, the patentee of the land. Although appellants had lived in an adjoining county all these years, yet they had never visited the land or communicated with the respondents or their mother, nor even recorded a copy of the will. There was nothing to suggest to the respondents that the children of the McFadins had an interest in the land, or that the McFadins had perpetrated a gross fraud on their children or their grantee in conveying the land. The appellants’ long, unexplained silence, from 1867 to 1909, would seem to he enough to convince any reasonable person that there was simply a missing link in the record title. They had been as silent as' the tomb and so continued until 1917, a period of fifty years. Their existence was unknown to respondents. Under these circumstances, respondents began an action against Minitree Catron and his unknown heirs and devisees, etc., as provided by Section 650, Revised Statutes 1899.

This is a highly remedial act. It has been amended so as to enable parties to have their titles and all conflicting interests speedily settled and determined. [R. S. 1919, sec. 1910.] Respondents did not know whether Catron was living or dead, drif dead, who were his heirs or devisees. We have held that a party may proceed by publication against a defendant if living, or if dead, against his unknown heirs. [Hambel v. Lowry, 264 Mo. 175, 174 S. W. 405.] We regard the publication in this case as a substantial compliance with the statute in that respect.

The contention now made is that designating the unknown heirs and devisees of Minitree Catron as nonresidents of the State, so that the ordinary process of law could not be served upon them within this State, was> error of fact; that the trial court believed they were nonresidents of the State and that they, as such non-resident defendants, had been duly and legally served with notice and process in this cause by publication, and, act-' ing on such belief and supposition, the court rendered the said judgment by default and decree in this cause against these movents, as such devisees and descendants.

It must be apparent that the averment complained of was wholly superfluous and not required by the statute. The allegations in the petition in other respects are in strict compliance with, the statute in proceedings against unknown persons. Whether unknown defendants are or are not residents of the State is, under the statute, wholly immaterial, and a fact unnecessary to he stated. If the appellants had seen and read the order of publication, the superfluous averment nould not have misled them. Viewed in any conceivable light, it was mere surplusage. Their residence or non-residence was not a-fact which was material to the right of the court to render the judgment, nor could it have had any influence on the court’s action in the premises. [Cross v. Gould, supra.] “The fact must be such a fact that had it been known at the time of the rendition of the judgment, such judgment would not have been entered.” [Jeude v. Sims, supra.]

III. It is further contended under this head that the record of the patent to Minitree Catron in the General Land Office at Washington showed that he was a Chain of Title as Notice. resident of Lafayette County, 'Missouri, and that the deed from the McFadins disclosed their residence; that respondents thus had notice of facts which put them on inquiry and that the judgment was concocted in fraud. It is also contended that respondents are charged with notice of every fact appearing' in their chain of title and hence cannot be heard to say that they were ignorant of the will of Mini-tree Catron, which, being probated and recorded in. the office of the probate judge of Lafayette County, disclosed the residence and interests of the appellants.

Respondents claimed through the deed executed by the McFadins to Mary Simms in 1867; they never heard of Catron’s will until this action was commenced in the year 1917, and of course did not claim under it. It did not lie in the chain of their recorded title; they, in fact, held adversely to the will. “It is well settled law in this State that a purchaser of land is charged with constructive notice of everything contained or recited in the recorded deeds which lie in and constitute the chain of title under which he holds.” [McDonald v. Quick, 139 Mo. 484, 498, and cases cited; Marshall v. Hill, 246 Mo. 1, 30.]

In State ex rel. v. Clarkson, 88 Mo. App. 553, the Collector of Howell County sued the defendant for delinquent taxes, by publication, alleging that he was a non-resident of the State. Clarkson’s deed was on record in the recorder’s office of Howell, showing-that he was a resident of Randolph County. The defendant filed a motion in the nature of a writ of error coram nobis to set aside the judgment on the ground that the court in rendering the judgment and “overruling a special execution for the sale of the land” committed an error of fact and had no jurisdiction of the person of the defendant. The Court of Appeals held that proof that Clarkson was a resident of the State did not prove or tend to prove that the court committed an error of fact in the rendition of the judgment fatal to its validity. The judgment of the trial court overruling the motion was affirmed. [See also Payne v. Lott, 90 Mo. 676, 682.]

This court, in State ex rel. v. Wessell, 237 Mo. 593, 604, referring to the statute authorizing judgments upon notice by publication, said:

“The statute which authorizes the court of this State to render judgments in such cases as we are now considering, upon imputed notice by publication, does not by its terms confine its operation to those who are actually non-residents of the State, but it provides that if the plaintiff or other person for him shall allege in Ms petition that a defendant is a non-resident of the State the clerk of .the court in vacation shall make an order directed to him, notifying him of the commencement of the suit, and that if he fails to appear on the day named, and answer, the petition will be taken as confessed.”

The learned, writer of this opinion then quoted approvingly from the Clarkson Case; supra, in part as follows:

“ ‘This order of publication was duly published and proven. In Tooker v. Leake, 146 Mo. l. c. 429, speaking of a similar order made in a tax case under like circumstances, the court, through Brace, J., said: “When so' published and the publication proved, the defendants in said action are as effectually served with process as if served by summons, and a final judgment rendered upon such service is just as conclusive as a judgment rendered upon service of summons, except that the defendant in the former case may within three years after the rendition thereof have the.same reviewed and set aside for good cause as provided in Revised Statutes 1889, Section 2217 et seq.’7 ’ ”

IV. Movents also assign as errors of fact that the Deceased Defendant. court believed and supposed it to be true that Minitree Catron was alive; also that the wife or widow of Minitree Catron was alive, whereas Minitree Catron died in 1862 and his widow died in 1891.

The statute, as said, is highly remedial and was intended to accomplish the purpose of its enactment. It is a practical and workable act. How could the respondents have known that Catron or his wife were living or dead? They might have assumed, according to the ordinary span of human life, that one who entered land in the year 1836 was dead in 1909, but there are many instances opposed to such an assumption. We'have held that it is proper to join as co-defendant one having an apparent interest, if living, or if dead, his unknown heirs or devisees. [Hambel v. Lowry, 264 Mo. 168, 175.] Of course the judgment against Minitree Catron is a nullity, but that does not affect the validity of the judgment against the unknown heirs or devisees when properly joined as co-defendants. The very language of the averment would advise the court that Minitree Catron might ©r might not be living, and refutes the assignment.

V. It is also assigned as an error of fact that the court believed and supposed it to be a fact that the Dlaintiffs herein -were the absolute owners in fee of the Life Estate Instead of Fee: Finality of Judgment. aforesaid lands, whereas, they simply owned the life estate of Frances Eveline McFadin, and had the court known such fact, or had such fact been presented to the court, it would not have rendered said judgment or decree. Section 650, Revised Statutes 1899 (Sec. 2535, B. S. 1909), authorized any person having any title, interest or estate in rea' property to commence an action against any person having or claiming to have any title, estate or interest in such property to have his title, interest or estate ascertained and determined. The judgment of the court determined that,plaintiffs were the o~vners in fee of the land involved in the action. On this motion the assignment cannot be considered, as it is not consistent `with the decree rendered by the court. [Reed v. Bright, 232 Mo. 399, 412.] "Only such errors can be assigned as are consistent with the record before the court and the court will not look into the cause of action on which the judgment was tendered or consider any fact which might have been presented to the court on the trial of the cause and still less any facts which were put in issue and adjudicated upon the trial." [23 Cyc. 884, supra.] Any other theory would emasculate the statute and authorize the reopening of the -oaseS at any. time, without regard to the statute which affords the right to review the judgment within three years after its rendition, and there would be no end to the litigation. [Marble v. Vanhorn, 53 Mo. App. 361, 364.]

VI. Appellants rely upon State ex rel. Hudson v. Heinrich, 14 Mo. App. 146, in which a motion to vacate a judgment was rendered against the defendant for delinquent taxes on an order of publication as a non-resident when he in fact lived in the county in Scope of Motion. which the judgment was rendered. The motion, while considered as in the nature of a writ of error coram nobis, was in fact filed within three years after the rendition of the judgment, and a reopening of the case was authorized under the statute providing for a review of the judgment. within three years after its rendition, but the action of the learned court in treating the motion as a writ of error coram nobis was a misconception of the scope and function of that writ and is not in harmony with our later rulings, cited supra.

YII. It is alleged in the motion that the petition in the original action was verified by John Simms, one of the plaintiffs, only, and it is argued that.the statute requires that the petition should have been sworn Error of Law. to by all of the plaintiffs, and in the absence of such verification the court had no jurisdiction of the action, and its judgment is a nullity. The language of the statute, Section 580, Revised Statutes 1899, is: “If any person shall allege in his petition under oath,” etc.

We held, in Rohrer v. Oder, 124 Mo. 24, that a petition by a collector of revenue in an action against unknown defendants to recover delinquent taxes, verified by his attorney only, was not properly verified, and that a judgment rendered on publication on such petition was a nullity. It is not necessary for the decision of this case to rule on this point, for the reason that if the petition was not properly verified, it was an error of law, apparent on the face of and not dehors the record.

VIII. Appellants allege in their motion that the court believed and supposed the facts to be that the defendants, the decendants and devisees of said Minitree Catron, had no interest in said land, whereas said Catron, Probate of Will: Proceedings of Rem. by his will duly probated in the probate court of Lafayette County, August 26, 1862, and duly recorded in the records of said court, devised said lands to his daughter Frances Eveline McFadin, the mother of the movents, during her life, with a vested remainder in fee in said lands to her children who resided in said county, and that said Frances Eveline McFadin had conveyed her life estate in said lands to Mary A. Simms, the mother of plaintiffs, of which fact the court was wholly uninformed, and that if the court had known such facts it would not have rendered said judgment.

It is argued that the probate of the will in Lafayette County was a proceeding in rem and was constructive notice to the world of the rights of the beneficiaries named in the will. If that be true then the judge of the court who rendered the judgment had constructive notice thereof as well as the respondents. Counsel cite Benoist v. Murrin, 48 Mo. 48, where it is said at page 52: “The proceedings were in rem, operating directly upon the will-the res.”

If the judge had notice of the will and of the rights of the beneficiaries in the land, then it cannot be said that he acted in ignorance, of the facts. However, the oft repeated statement that the appellants owned the remainder in fee in the lands under the provisions of the will and that the respondents had knowledge thereof, is inconsistent with the findings of the court and cannot be considered on this motion, as suggested in paragraph 5 of this opinion. That would be to look into the cause of action on which the judgment was rendered, a proceeding authorized on a petition to review the judgment filed within three years after the rendition of the judgment.

IX. Appellants contend that the respondents owned an estate pur aiitre vie and can do nothing to pr-ejudice the estate of the remaindermen, and are estopped to Duty of Life Tenant. claim title adversely to them. This question was considered in Mathews v. O'Donnell, 289 Mo. 235, in Division Two of this court, where it was held that a life tenant, being charged with the duty of paying taxes, could gain no advantage by permitting the land to go to sale on a judgment for delinquent taxes and buying it in at such sale. In that case the recorded deed under which the defendant derived title showed that he acquired the estate of the life tenant and had no other interest. This contention, however, cannot be considered in a proceeding of this character.

There are other questions raised in appellants’ brief, hut what we have said disposes of all the matters in issue against appellants’ contentions.

It is proper to add that this is a hard case; one that has appealed very strongly to us and has received close consideration. The appellants, it must he conceded, through indifference to their own interests, have lost their patrimony of no inconsiderable value. As Wn> liamsoN, J., who recently graced this bench, has aptly said: "The tragedies of this life are not the contests between right and wrong, but between right and right.”

The judgment is affirmed. All concur.