Skillman v. Clardy

165 S.W. 1050, 256 Mo. 297, 1914 Mo. LEXIS 414

• Court: Supreme Court of Missouri
• Decided: April 2, 1914
• Status: Published

Opinion

LAMM, J.

— From a judgment of the Butler Circuit Court in favor of defendant, quieting title in him to a quarter section of land, plaintiffs appeal.

The petition reads :

“Plaintiffs state that Samuel E. Hamilton died intestate in the year 1875, seized in fee of the real estate hereinafter described; that the plaintiffs are the sole surviving and legal heirs of Samuel E. Hamilton, deceased; and that by inheritance, as such legal heirs of Samuel E. Hamilton, deceased, they are the owners, in fee simple, and claim title to the following real estate, lying, being and situate in the county of Stoddard, in the State of Missouri, to-wit: the northwest quarter of section three, township twenty-three north, of range twelve east, containing one hundred and sixty acres, more or less.

“Plaintiffs further state and aver that the said real estate is not in the actual possession of any person or persons, whatsoever, but is wild and uncultivated timber land; that the defendant claims some title, estate or interest in and to said premises, the nature and character of which claim is unknown to plaintiffs and cannot be described herein, except that said claim is .adverse and prejudicial to these plaintiffs.

“Wherefore, the premises' considered, the plaintiffs ask the court to try, ascertain and determine the estate, title and interest of the plaintiffs and the defendant herein, respectively, in and to the real estate aforesaid, and to define and adjudge, by its judgment or decree, the title, estate and interest of the parties, plaintiff and defendant, herein, severally, in and to the aforementioned premises, according to the, statute in such cases made and provided, and for the costs in this behalf expended.”

Admitting that defendant claims some interest and title and averring that bis title is in fee simple, the answer goes on to plead estoppel generally through laches, and then turns the tables on plaintiffs by alleging that defendant is the owner in fee simple of the real estate in controversy and that plaintiffs claim some right or interest therein, the precise character of which defendant says he does not know except that such pretended claim is adverse to him, wherefore his prayer (mutatis mutandis) is the sanie as plaintiffs.

The reply was a general denial.

The cause was treated, nisi, as in equity. It was stipulated in open court that one Sámuel B. Hamilton is the common source of title. The following sufficiently outlines the case, to-wit:

One Samuel B. Hamilton, a citizen of Ohio, owned the land and died intestate in 1876, leaving Samuel B. his only son and heir and Abigail Maria his widow.' Abigail Maria died in 1888, her dower estate for life falling in at that event. The title became vested in-Samuel B. by descent cast on the death of his father. Samuel B. died in 1899, intestate, leaving surviving him three children, his wife Rebecca having died in 1894. Those children (and his only heirs) were Mary Cornelia, Anna Eliza, and Hannah Maria, two of whom married and the three (with the husbands of those married) are plaintiffs in the instant case. Their title, if any, is by descent cast on them as heirs of Samuel B.

There is no question of the Statute of Limitations, the land being wild.

In 1890 a judgment was rendered against the land for taxes of 1887 and 1888 in a suit then pending in the Stoddard Circuit Court in favor of the collector of that county against “Samuel B. Hamilton, and Rebecca Hamilton, his wife, Abigail Hamilton, widow of Samuel R. Hamilton, deceased, and Andrew Hamilton, defendants.’'’ Andrew Hamilton (a collateral kinsman) had no title at any time and was dead at the time suit was brought. On that judgment execution issued in January, 1891, and in March of that year a sale was made under the sheriff’s hammer to Ligón Jones and Emil M. Weber, an executed deed following in consummation of that sale.

By a conveyance defendant, Clardy, acquired their title in 1903 — Jones, Weber and Clardy paying the taxes levied from 1889 down to this date.

If that tax sale conveyed title, the case was well decided. If not, it was badly decided.

There were many objections made to the validity of the tax judgment and deed on many alleged defects. In oral argument learned counsel for appellants conceded a group of them were small ones, taken severally and one at a time, but he insists with spirit that (taken collectively as an aggregation) they had a cumulative effect and invalidated the title. He illustrated his position by the homely proposition announced at our bar, to-wit: “Enough specks make an apple rotten.” The enough-specks theory, thus making its virgin and blushing bow on the stage of real estate law, may well excite a mild judicial interest — an interest to be tempered by a word of caution, thus: If comparisons are not “odious” as some writers put it, they may be “odorous” as others will have it, and, finally, in dealing with similitudes must we not be chastened by the thought that so great a jurist as Lord Mansfield found it wise to declare (so Lord Westbury vouches) “that nothing in law is so apt to mislead as a metaphor.” [Knox v. Gye, 5 L. R. (H. of L.) l. c. 676.] We are told at the mother’s knee that continual dropping wears away a stone, that enough pebbles change the courses of rivers, that while one swallow may not, yet many swallows may, make a summer, and why may not many specks spoil an apple 1

We shall attend to the cumulative effect of “specks” on real estate titles before we dismiss this opinion.

Quieting Title: Petition in Language of Statute: Collateral Attack, I. For the purpose of showing that the petition was couched in the general verbiage of the statute, Revised Statutes 1899, section 650 (a form of pleading in ambush approved in Huff v. Laclede Land and Imp. Co., 157 Mo. 65, and tolerated ever since) we set it forth, supra, in words and figures. We allow ourselves an observation or two as a foreword, thus: In the exposition of that highly beneficial statute for quieting title the trend of the judicial mind has been to consider suits brought under it as of an equitable nature, except where the issue was title by limitation, accretion or the like, that is, one wholly cognizable at law. [Peniston v. Pressed Brick Co., 234 Mo. l. c. 709, and cases cited.] In that view of it cases may be found where we have countenanced a bill in equity so framed as to invoke the aid of section 650 commingled with other allegations of purely equitable cognizance, thereby putting the case clearly in equity on ancient and established heads of equity jurisdiction as well as on the statute. We need not go into any question relating to a bill directly attacking a tax judgment and a deed on a sale under that judgment on specifications averred with the fullness and precision of equity pleading. It suffices to say for the purposes of this case that there can be no doubt that a petition in the general form of the one we are now dealing with is not a direct attack but, if any attack on the tax judgment and proceeding is ambushed in the general allegations of the petition, it is a collateral attack, and so we have always held in suits strictly under that section. [Evarts v. Lumber & Mining Co., 193 Mo. l. c. 444 et seq.; Cooper v. Gunter, 215 Mo. l. c. 562; Morrison v. Turnbaugh, 192 Mo. l. c. 444 et seq.; Warren v. Manwarring, 173 Mo. l. c. 34; Shelton v. Franklin, 224 Mo. l. c. 355 et seq.; Lovitt v. Russell, 138 Mo. l. c. 482 et seq.; South Mo. L. Co. v. Carroll et al., 255 Mo. 357.]

The premises considered, we must be guided in our judgment by the general doctrine of the law, to-wit, that mere irregularities (or, if the word be preferred, “specks”) in a tax suit (by which suit the taxes were merged into a judgment in a court of general jurisdiction, and a sale'made thereunder) are not sufficient to overturn such judgment in a collateral attack. Contra, nothing short of some capital vice amounting to a lack of jurisdiction rendering the judgment void can be successfully interposed to parry its effect or overturn a sale thereunder. Tax judgments stand precisely on the same foot as any other in that particular and are protected by the same general principle when assailed collaterally under section 650 or in ejectment. [Schmidt v. Niemeyer, 100 Mo. 207; Boyd v. Ellis, 107 Mo. 394; Gribbs v. Southern, 116 Mo. 204; Jones v. Driskill, 94 Mo. 190. Vide, also, the authorities last cited above.]

The right (and trite) doctrine was thus succinctly announced in Lovitt v. Russell, supra: “No principle of law is more universally accepted in this country than that the judgment of a court of competent jurisdiction, so long as it stands unreversed, cannot be impeached in a collateral proceeding, on account of mere errors, or irregularities, not going to the jurisdiction.” It is strictly by the standard of that pronouncement (and not otherwise) that the validity of plaintiffs’ objections must be measured and adjudged.

II. Plaintiffs complain of alleged defects in the tax judgment and proceeding, in the tax deed and in defendant’s chain of title subsequent to the tax deed. Of these seriatim.

(a) Of alleged defects in the tax judgment and proceeding.

(1) Something is made, arguendo, of the fact that the name “Hamilton” is spelt Hamelton, and that the Christian name Abigail is spelt Abigal in the order of publication. Surely, “Abigal” is idem sonans with Abigail — the letters ai being diphthongal in character, a digraph, and having a joint value equal to a (so a scholar tells me). Not only so, but, as the laws of man deal with the quick and not with the dead, and as Abigail Hamilton had departed this life two years before the tax suit and could not by any known form of service be brought into an earthly court (even on the sovereign matter of taxation under any name, either in Southeastern Missouri or elsewhere in the State, spelled well or ill) the pretermission of an i in the final syllable of her name is of no consequence. We were told in school to mind our p’s and q’s, but such exactness is of no force in jurisprudence in dealing with names after death. Clearly, too, Hamelton is idem sonans with “Hamilton,” when spoken eolioquially or by the most skilled voice into the most exquisite ear. ■

(2) The order of publication made by'the clerk in vacation in the tax suit directed publication to be made in the “Bloomfield Vindicator,” a newspaper published weekly in Stoddard county, Missouri. The proof of publication made refers to the sheet as the “Vindicator.” But the judgment narrates inter alia, as follows: “And it appearing to the court that defendants have been legally notified of the commencement of this action by publication in the Bloomfield Vindicator, a newspaper published weekly in Stoddard county, Missouri, for four weeks successively,” etc., etc. It will thus be seen that while the affidavit of proof by the publisher leaves off the word “Bloomfield” from the title of his newspaper, yet the judgment inserts it on the fact found. Something is made of that fact, but the contention is without substance. Because: No attempt was made to show there were twro papers called the “Vindicator” published in Stoddard county. "We take judicial notice of the fact that there was then and now is a town known as Bloomfield in that county. It is a matter of common knowledge that the name of the town in which a paper is published is usually found in the caption or name of papers published therein, this for purposes of use or ostentation, identification and differentiation from other sheets, or local pride. To give the matter a proper setting, it must be noted that the statute in existence in 1890, at the time the tax suit was brought, did not require an order of publication to designate a newspaper when the publication was made in the county where the suit was instituted. [R. S. 1889, sec. 2028; lb., sec. 2022; Coffin v. Elgin, 243 Mo. 455.] But if it did, then, the good sense of the thing is to be looked to. In State ex rel. v. Blair, 245 Mo. l. c. 694, a suit on drainage assessments, the order directed the clerk to insert a notice incident to establishing the district in the Western Enterprise. The insertion was made in the Rich Hill Enterprise. In that case there was testimony that the paper was sometimes known as the “Western Enterprise” and sometimes as the Rich Hill Enterprise, but that there was only one paper published in Rich Hill with the word “Enterprise” a part of its name. It was ruled that the variance in the name of the paper, a variance much more pronounced than that we are dealing with, did not invalidate the notice. In Blickensderffer v. Hanna, 231 Mo. l. c. 107 et seq., a probate notice is dealt with. In that case there was an order by the court that notice be published in the “Lebanon Journal.” It was in fact published in the Chronicle. On the theory that the statute did not require the court to designate the newspaper, the publication was held well enough. So, the failure was held to be at most an error or irregularity where the court accepted the publication (as it did in the case at bar) as a compliance with the order.

The acceptance of the publication by the court as in compliance with the law and with the order, as the judgment narrates in the instant case, is of stiff significance where the finding in the judgment is not assailed by the rest of the record, as here. In McDermott v. Gray, 198 Mo. l. c. 282, an equivalent matter to that now in judgment was up for consideration and a ruling was made controlling the question here, vis.:

“While it is true that in determining the validity of judgments rendered upon constructive notice we may look to such notice to see that it is directed to the proper party, for that goes to the jurisdiction of the court over the person; yet if the order of publication was directed to the proper party in his proper name and the proof of such publication is submitted to the court, and the court finds that the defendant has been duly and legally brought into court by such publication, a judgment rendered upon such publication cannot be attacked in a collateral proceeding for mere irregularities of the clerk in making sneh order. Judge Macearlane, in Charley v. Kelley, 120 Mo. l. c. 142, in reviewing the authorities on this subject, states: ‘It is said by Judge Napton in Kane v. McCown, 55 Mo. 200: When the record shows a finding of the court, that there has been a legal order of publication, and a publication made in pursuance of such order, it is not apparent how this finding or determination of fact can be attacked collaterally any more than any other conclusion of the court in the course of its proceedings to final judgment. [Brawley v. Ranney, 67 Mo. 283.] The court found that an order, previously made, was duly published. This finding is not assailable in this suit.’ ”

(3) At the time in hand (1900) the statute provided that in counties like Stoddard a defendant summoned or notified according to the provisions of chapter 33, Revised Statutes 1889, shall demur or answer the petition on or before the third day of the term at which he is required to appear, if the term shall so long continue, and if not, then before the end of the term, unless further time be given by the court. It also provided that the action shall be triable at the return term. [R. S. 1889, sec. 2042.] So, section 2022, ibid, provided that the order of publication should require the defendant or defendants “to appear on a day to be named therein and answer the petition, or that the petition will be taken as confessed.” Now in the tax suit the order of publication (bearing date June 10,1900) notified defendants to appear at the next regular term of the circuit court of Stoddard county to be begun and holden at the court house in the town of Bloomfield in said county on the eighth day of September next and (quoting) “on or before the sixth day of said term if the term shall so long continue — and if not then on or before the last day of said term — answer or plead to the petition in said cause,” eto. It will be observed that defendants had notice of the venue, the term and the day on which the term began, but instead of notifying them that they had only the statutory time of three days thereafter in which to answer or plead the notice doubled the time and gave them six. The record shows the judgment was rendered by default on the twelfth day of the term, thus giving defendants a leeway of six term days to appear beyond the time noticed. It is contended that such variance from the statute is fatal to the validity of the constructive service. We think not, and on these grounds: It will be observed that the statute on notice does not say that the defendants shall be required to appear on or before the third day of the term. The statute says they shall be required to appear “on a day to be named therein” and leaves the matter at that point. This notice complies with that statute literally. If, now, the notice had named a shorter time than does the section on the time of pleading, to-wit, 2042, supra, we would have had another question to deal with; or if a judgment had been rendered on the fourth day as section 2042 permitted, or if a judgment had been rendered at any time before the day mentioned by the notice, to-wit, the sixth day, we should have had a different question to deal with. In such event defendants could well complain that they were misled by the notice, or that the statute or some constitutional requirement of due process had been violated, but neither the one thing nor the other occurs here. No injury did or could arise to defendants'by reason of the irregularity, and, on a collateral attack on the judgment, we can assign no vitality to the contention.

(4) It is contended that the petition states no cause of action. The specification is that it does not state that defendants are the owners of the land. That claim is inadvertently made by plaintiffs’ counsel. The fact being contra, we see'nothing wrong with the petition in that particular.

We have looked into other criticisms of the petition and find them not vital on the question of jurisdiction, as stating no cause of action.

(5) Complaint is made of the certified tax bill attached to the petition, but it has been ruled over and over again that on a question of jurisdiction the petition in tax suits is to be looked to and the order of publication, not the tax bills, which latter are mere evidentiary matter. If the tax bill were bad the vice in it might be or might not be of substance on direct proceeding by appeal or writ of error, but on collateral attack it will be presumed that the court proceeded by right and not by wrong and had satisfactory evidence before it upon which to render judgment. [State ex rel. v. Rau, 93 Mo. 126; Gibbs v. Southern, 116 Mo. l. c. 218 et seq.; State ex rel. v. Bank, 144 Mo. l. c. 386; State ex rel. v. Hutchinson, 116 Mo. l. c. 402; State ex rel. v. Wilson, 216 Mo. l. c. 303.] Conceding to appellants that when the validity of a judgment is questioned on jurisdictional grounds the whole record Is to be searched and read together (Cummings v. Brown, 181 Mo. 711), yet when all is said, the vital matter remains as jurisdiction, and the tax bill does not touch that at all.

(7) It is argued that the judgment does not find that the defendants in the tax proceeding were owners of the land. If a literal view is to be taken of the statute relating to tax judgments then in force (R. S. 1889, sec. 7683, q. v.) it does not put that finding on its list of requirements. But taking a broader view and conceding that on the good sense of the thing the judgment should so find in order “to be a proper conclusion on the facts found or, as the statute defines a judgment (R. S. 1909, sec. 2090), “the final determination of the right of the parties in the action,” yet the judgment in hand narrates as follows: ‘ ‘ And, all and singular the premises being seen and fully understood, the coiort finds the issues for the plaintiff.” That finding was in response to all the substantive charges of the petition, one of which was that defendants were the owners. We think that finding will do, hence there is no substance in the point.

(8) Having referred throughout to the parties defendant in the plural form, as was proper, at a place or two the judgment omitted the “s” off of the word “defendants,” and that is charged as a fatal irregularity. If the maxim, Be minimis, is worth anything at all in legal exposition the situation vehemently cries out for its use here. Evidently the omission of the letter was the mere penslip of a slovenly clerk. Sufficient appears from the context to show that to be so and we cannot well adjudicate substantial rights on such a mere pinprick of inadvertence. Appellants have cited us to no authority so holding, and if there were any we would not follow it. [Shinn v. Railroad, 218 Mo. l. c. 179 et seq.]

(9) We suppose from certain earmarks that the tax judgment is found, below, in a record book of tax judgments made up of printed forms. Be that so or not so, the form used here contemplated a series of years for which taxes might be delinquent and in suit in the same case, and appropriate blanks were provided for that purpose. In this tax suit having filled the blanks appropriate to the years 1887 and 1888, the others were left unerased. It is argued that this slovenly omission of the clerk invalidates the judgment. As the blanks, thus unfilled, appear to us on the record, they are referrable only to a limbo of jumbled nonsense. Peradventure they say nothing intelligible; they mean nothing intelligible, except that the clerk neglected to run a pen line through them. As the cause was treated as in equity, does not equity consider that done which should have been done? May not the discriminating eye of the chancellor see that line now? To hold that this breach in carefulness, this clerical error springing from lazy slovenliness, overturns the judgment would be to deal with the sober and practical affairs of justice from the viewpoint of frivolity. Miller v. Keaton, 236 Mo. 694, is in point. (Q. v.)

(10) But appellants criticise the judgment from another angle, namely, that it is a personal judgment for taxes on real estate. It is prolix and we will not cumber this opinion with it. Fairly read in all its provisions and by its four corners, we think the criticism must be disallowed as unsound. There is language in the judgment squinting toward the construction contended for, but there is other language contra; and when we consider that the petition was directed to a special judgment to be executed by a speial fi. fa. and that the statutes required those things, it would be ovemice analysis of its terms to hold this judgment, rendered on constructive service (and for taxes on real estate at that), personal and not special. Appellants argue they are in danger of being pursued in their distant home by a suit on this judgment as one in personam. But, in the face of the whole body of the law, that is a vain fear, an idle timidity that can be allowed no efficacy in overturning the judgment. What say the maxims: Those are to be regarded as idle fears which do not affect a steady man. A frivolous fear is not a legal'excuse.

(b) Of defects in the deed. The sheriff’s name was Jonathan R. Barham. The deed so recites passim. But he signed his name thereto in this fashion: “J. R. Barham, sheriff.” The acknowledgment in open court recites, inter alia, that “ J. R. Barham is personally known to the judge to be the same person whose name is subscribed to the foregoing instrument of writing as having executed the same as sheriff, and is known to be the sheriff of the county of Stoddard aforesaid,” etc.

Again, the deed shows that the land was described by abbreviations, and that the quarter section in question was sold in bulk.

It is argued those alleged defects are fatal to the deed, and it is also contended that the deed is fatally defective because of its narrations relating to the sheriff’s advertisement of sale, which were, to-wit: “. . . . and having previously to the day of sale, hereinafter mentioned, given at least twenty days notice of the time and place of sale, and of the real estate to be sold, and where situate, as the law directs, by advertisement in the Vindicator, a newspaper published in my said county,” etc.

We cannot very well follow the lead of appellants’ suggestions in the foregoing insistences, supported as they are by ingenious argument, because:

(1) In the first place, the certificate of acknowledgment must be read with the deed. [City of Kansas v. Railroad, 77 Mo. l. c. 185.] Part of the function (and a main one) of a certificate of acknowledgment to a deed is to identify the person who signs and executes the deed. Here that person is identified by the judge as the sheriff who made the conveyance. Why should an appellate court have doubt about his identity when the sitting judge below, who knew the fact and solemnly vouches for it, had none? There is an elaborately reasoned case in point, Lincoln v. Thompson, 75 Mo. l. c. 629 et seq. Do not sheriffs’ deeds, in the particular in hand, stand on the same foot with other conveyances of real estate? And, if we once- announced the doctrine that a deed was bad in the body of which the full name of the grantor appeared but which was signed by the initials of his Christian name with his full surname, though properly acknowledged, would it not draw within its hazard all other conveyances? Clearly so. The point has been rarely made but (so far as we stand advised) when made has always been disallowed. We do the same now. The maxim is: The presence of the body curves error in the name; the truth of the name curves error of description (Praesentia corporis tollit errorem nominis, etc.)

(2) Abbreviations in land descriptions in customary use are part of the statutory scheme of a tax; levy, assessment and collection by suit and such was the fact at the time of this tax suit. [R. S. 1889, sec. 7707.] That statute, as preserved and brought down to us in subsequent revisions as live law, has always been liberally construed to further its beneficent life and purpose. The authorities are canvassed on that question in a case just handed down at this delivery. [Akins v. Adams, ante, p. 2.] We can add nobbing to what is there said. The abbreviations here were the customary ones and followed the statute.

(3) Whatever may be the rule on direct attack where injury is made to appear, the sale of the land in bulk will not avail appellants in a collateral attack on a tax judgment or deed. [Morrison v. Turnbaugh, 192 Mo. l. c. 444 et seq.; Shelton v. Franklin, 224 Mo. 342; Culbertson v. Edwards, 243 Mo. 433.]

(4) Referring to the narrations in the deed touching the advertisement, they are well enough. Section 7684, Revised Statutes 1889 reads:

“The sheriff shall execute to the purchasers of real estate under this chapter a deed for the property sold, which shall be acknowledged before the circuit court of the county or city, as in ordinary cases, and which shall convey a title in fee to such purchaser of the real estate therein named, and shall be primafacie evidence of title, and that the matters and things therein stated are true.”

It is argued that those narrations (q. v.) ‘are mere conclusions of the sheriff and state no facts. As to that we say: -The statute is silent on the form of a tax deed. But as the whole scheme of collecting delinquent taxes was changed in 3877 and suits, as in ordinary cases, were prescribed to be brought in courts of general jurisdiction, it is not a far-fetched conclusion to hold, as we do, that the lawmaker contemplated that the tax deed in its terms should follow the long-existing statute {in pari materia) relating to the narrations of sheriffs’ deeds in general, to-wit, section 4954, Revised Statutes 1889, reading:

‘ ‘ The officer who shall sell any real estate, or lease of lands and tenements for more than three years, •shall make to the purchaser a deed, to be paid for by the purchaser, reciting the names of the parties to the execution, the date when issued, the date of the judgment, order or decree, and other particulars, as recited in the execution; also a description of the property, the time, place and manner of the sale, which recital shall be received as evidence of the facts therein •stated.”

The tax deed in judgment complies with the last -quoted statute. So, it is in the usual form.of sheriff’s deeds on execution sales on tax judgments. The •case of Large v. Fisher, 49 Mo. 307, was under a former taxing dispensation and what is said in that case but illustrates the jealous solicitude with which courts then viewed the transfer of one man’s land to another under the summary system then in vogue for tax sales. Appellants’ reliance on that case we think ill advised. "We shall not hold the narrations in the present deed relating to the advertisement a fatal defect or any defect at all. Prima-facie, and by virtue of the statute itself, those narrations are true. [R. S. 1889, sec. 7684.]

(4) Something is made of the fact that two of the parties defendant were dead at the time the tax suit was begun. But in the face of the fact that the common source (and then owner) of the title was alive and made a party, that feature becomes unimportant. The rule is that judgment defendants well served (barring exceptions not here) cannot complain even on appeal (let lone on collateral attack) that the judgment is void as to other parties defendant not served —doubly so where they had no interest, as here, [Boyd v. Ellis, 107 Mo. l. c. 399, and eases cited.] The modern doctrine is that a judgment (saving exceptions not material to this case) is no longer held to be in so far forth an entirety that if void as to one it is void as to all. [State ex rel. v. Tate, 109 Mo. l. c. 269 et seq.; Stevenson v. Black, 168 Mo. l. c. 559; Keaton v. Jorndt, 220 Mo. l. c. 133 et seq.; Stotler v. Railroad, 200 Mo. l. c. 149 et seq.]

(5) It is next argued, as we grasp it, that though the defects and irregularities specified áre not fatal singly, yet taken together their cumulative effect so weighs down defendant’s title in a sea of illegality as to drown it out. Such theory is more specious than sound as a working rule in reaching justice. It runs on the notion that in unity there is strength — witness, the fable of the father, sons and bundle of sticks. But there is no unity in tbe defects here, such as they are they do not dovetail together, one alleged defect does not aid the other to make out a want of jurisdiction and each defect (as in the saying about tubs) stands on its own bottom; or, to use counsel’s word, is a “speck” to be inspected, respected, or suspected according to its own merits in meeting justiciable expectations. Do not specks abound everywhere on the right hand and on the left? In men, things, laws and titles? All thifigs terrene have specks, why not land titles?

In that behalf appellants put stress on a pronouncement by Scott, J., in Shields v. Ashley’s Admr., 16 Mo. l. c. 474, thus:

“When there is a doubt about the regularity of the proceedings, which result in the sale of real estate, it represses the ardor of bidders at an auction, and causes a sacrifice of the property condemned to be sold. Hence courts cannot be too cautious in requiring, in all such proceedings, a strict compliance with the forms of the law.”

That excerpt must be read with the facts of the particular case Judge Scott was dealing with, viz., an appeal on an order relating to a sale of real estate in a probate proceeding — as, in sound exegesis, must every judicial pronouncement. [State ex rel. v. St. Louis, 241 Mo. l. c. 238 et seq.] It was, as said, a direct proceeding. The court was, therefore, called upon to see to it that no sacrifice by depressed bidding should spring from irregularities in the proceedings, heading to the sale. When the order appealed from was made the whole matter was in fieri, in process of making, and Judge Scott spoke his prophylactic words to that situation.

' " This case is not that case. This case seeks to overthrow a judgment and deed, a consummated transaction, by a collateral attack — a judgment, too, wherein the court acquired full jurisdiction, which fact, as already pointed out, made it a closed and sealed book in such form of challenge.

The point is ruled against appellants. With that ruling, all other contentions are disposed of (including some considered and not mentioned in this opinion) and the judgment stands for affirmance unless there is substance in the point we take next.

III. There is left one other assignment of error, viz,: It is argued the judgment quieting title in favor of defendant in the instant case is erroneous for that the record shows the deeds, the mesne conveyances, from the purchasers of the tax sale were insufficient to convey the entire title to defendant. Specifications are immaterial because error, if any, in the judgment as between Mr. Clardy and outside parties is not a particle of concern to appellants, provided their ancestor .lost title at the tax sale, as we have held he did. The statute ordains that error to be reversible must materially affect the rights of parties appealing, not those of others. [R. S. 1909, sec. 2082; Kansas City v. Woerishoeffer, 249 Mo. l. c. 24; City of St. Louis v. Lanigan, 97 Mo. l. c. 180; Dixon v. Hunter, 204 Mo. l. c. 391 et seq.]

In the Dixon-Hunter case it was said:

“In the first place, defendant was alone concerned with that part of the decree affecting him. He was not concerned with settling the title as between the two groups of complaining heirs. If he lost it, the subsequent proceedings interested him no more. It is fundamental that an appellant cannot complain of error unless materially affecting the merits as against him.”

So, appellants must show title in themselves before they can question a defendant’s who holds under mesne conveyances from the common source. [Wheeler v. Land Co., 193 Mo. l. c. 291; Stewart v. Land Co., 200 Mo. l. c. 290.] Having lost their title at the tax sale, the judgment in defendant’s favor as between him and Jones and Weber is unimportant on plaintiffs’ appeal.

Accordingly the assignment is also disallowed to appellants.

We have not followed all the ramifications of elaborate arguments, but have pursued the matter far enough to dispose of material questions and to rule that the case was well decided. Let the judgment be affirmed. It is so ordered.

All concur.