OPINION.
BOND, J..
Quieting Title: Equitable Defense. (after stating the facts as above):—I. Preliminary to a review of this case, we will dispose of the contention of the learned counsel for appellant, that this action, though strictly one at law in its inception, was transformed into a suit in equity by the inclusion in the
answer of the defense of laches and estop-pel.
As has been seen, four defenses were interposed in the answer. The record shows that each one of them, including the one resting on laches and estop-pel, concluded in the following terms: and defendant “again prays the court to go hence without day and with his costs.” None of the defenses asked for any affirmative relief whatever.
It has long been settled In this State that a purely legal action, such as ejectment, is not converted into one in equity simply by the interposition of equitable defenses thereto unless there is a prayer for affirmative relief based on those defenses. [Shaffer v. [159]*159Detie, 191 Mo. l. c. 388; Kostuba v. Miller, 137 Mo. l. c. 172; Kerstner v. Vorweg, 130 Mo. 196.] Both, divisions of this court, after some hesitation, have applied this rule to suits to quiet title. [R. S. 1909, sec. 2535.] In the leading case on that subject, the test was stated to be, “If the issues joined entitle the parties to an ordinary judgment at law, then, under the Constitution and laws of the State, the parties are entitled to a trial by a jury; but if the issues tendered are equitable in their nature and call for equitable relief, then the cause is triable before the chancellor.” [Lee v. Conran, 213 Mo. l. c. 412.] That case was followed, after a thorough discussion of the subject, in a case’ where the point for review arose upon the answer in a suit under the statute to determine title, to which the defendant made the identical pleas made in the case at bar, but concluding his answers with a prayer for full and complete affirmative relief by the investiture of title, and for general relief. [Withers v. Railroad, 226 Mo. l. c. 384.] Speaking as to the state of the pleadings in that case, Division No. Two said, that while it was true that the setting up of equitable defenses without more would not change a legal action into one in equity, yet in that case there was a prayer for affirmative relief, and that this conjoined with such defenses did “convert the case from one at law to a suit in equity,” citing cases. [Withers v. Railroad, supra, l. c. 397.] And added, that this distinction brought the ruling of the court in harmony with the doctrine announced in the leading case of Lee v. Conran, supra. This latter case was also affirmed by this Division in Minor v. Burton, 228 Mo. l. c. 563. And again affirmed in Division No. Two in Frowein v. Poage, 231 Mo. l. c. 90.
We are cited to a recent decision of this court In Banc where a suit was brought to determine title, and it was held that the case was one in equity. The answer in that case “pleaded estoppel in aid of defend[160]*160ant’s title.” This is the only reference to the contents of the answer, and from it the inference may be drawn that the answer contained a prayer for affirmative relief; and, hence, the decision in that case was in harmony with those cited above. (The ruling in that case was over the dissent of Woodson and Graves, JJ.) [Nelson v. Jones, 245 Mo. 579.]
In the case at bar the petition merely stated that they “owned in fee” and “claimed title” to the property described. It presented no matter of distinctive equitable cognizance. The answer pleaded only matters* in bar and preclusion. A jury was waived on the trial. Instructions or declarations of law were requested by the parties and given and refused. The court made a finding of facts and law. Only one of the defenses— estoppel and laches- — presented ,any matter of equitable cognizance. It was interposed solely as a bar to plaintiffs’ suit. If it had been interposed in that form and to that extent only in any other legal action, including ejectment, it could not have converted such action into a suit in equity under the unbroken current of decisions in this State. Nor can it have that effect in the present case without destroying the symmetry of the law. The statutory remedy as it now exists for determining titles provides in explicit language for the bringing of legal as well as equitable actions which shall conform in all respects to the code of civil procedure. [R. S. 1909, secs. 2535 and 2536.] Under this statutory authority plaintiffs brought a strictly legal action. We do not see how the answer to that action can have a greater potency than the -same answer to other legal actions, except by the creation of an arbitrary rule. We think (as the record shows the parties thought on the trial below) that this was a legal action; and being submitted to the court, without a jury, the finding of facts has the force of a verdict of a jury. [Minor v. Burton, 228 Mo. l. c. 564, and cases cited.] We do not concur in appel[161]*161lant’s contention that the case is before ns for review as upon appeal in a suit in equity.
Plaintiff’s Title. II. The first point in appellant’s brief is directed to the assumed effect of the allegation in the petition, that plaintiffs are “the owners in fee and claim title to the following described real estate,” appellant’s contention being, that this allegation confines the proof of plaintiffs to the establishment of a legal estate in fee; and that failing proof of that exact estate, they must be cast in this suit. This is an erroneous conception of the statute under which this action was brought. The allegations of the petition are in conformity with the langauge of the statute and have been expressly approved as sufficient to obtain the benefits of the statute by this court. [Huff v. Land & Imp. Co., 157 Mo. 65; Spore v. Land Co., 186 Mo. l. c. 659; Ball v. Woolfolk, 175 Mo. 278; Elliott v. Sheppard, 179 Mo. 382.] These allegations describe full rights of absolute ownership and necessarily include any and all lesser titles, interests or estates, for it takes every degree of title to make up the perfect title of an absolute owner of land. It has been again and again ruled by this court, that the object of this statute (as expressly said in it) is to ascertain and define “respective titles” and to adjudge or decree the “several” estates of the parties between themselves. Whichever of the parties has the better title, is entitled to have it quieted against his adversary. It is not essential that either plaintiff or defendant should possess the highest form of ownership in land, such as would warrant a judgment investing him with a fee simple title good against the world. It is sufficient if one of the parties proves title and ownership superior to that of the opposite party. When this is done the owner of the better title has the right to a judgment or decree establishing it as against the [162]*162opposite party and quieting it from further attack by him. [Maynor v. Land & Timber Co., 236 Mo. l. c. 728; Gage v. Cantwell, 191 Mo. 698; Craton v. Land & Lumber Co., 189 Mo. 322.] Appellant cites the case of Stewart v. Land Co., 200 Mo. 281. An examination of that case will show that plaintiff while claiming a fee simple title gave no evidence of any title whatever. The defendant stood upon a demurrer to the evidence, and the ruling was that the case should be reversed and remanded with leave to the parties to amend their pleadings if so advised.
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OPINION.
BOND, J..
Quieting Title: Equitable Defense. (after stating the facts as above):—I. Preliminary to a review of this case, we will dispose of the contention of the learned counsel for appellant, that this action, though strictly one at law in its inception, was transformed into a suit in equity by the inclusion in the
answer of the defense of laches and estop-pel.
As has been seen, four defenses were interposed in the answer. The record shows that each one of them, including the one resting on laches and estop-pel, concluded in the following terms: and defendant “again prays the court to go hence without day and with his costs.” None of the defenses asked for any affirmative relief whatever.
It has long been settled In this State that a purely legal action, such as ejectment, is not converted into one in equity simply by the interposition of equitable defenses thereto unless there is a prayer for affirmative relief based on those defenses. [Shaffer v. [159]*159Detie, 191 Mo. l. c. 388; Kostuba v. Miller, 137 Mo. l. c. 172; Kerstner v. Vorweg, 130 Mo. 196.] Both, divisions of this court, after some hesitation, have applied this rule to suits to quiet title. [R. S. 1909, sec. 2535.] In the leading case on that subject, the test was stated to be, “If the issues joined entitle the parties to an ordinary judgment at law, then, under the Constitution and laws of the State, the parties are entitled to a trial by a jury; but if the issues tendered are equitable in their nature and call for equitable relief, then the cause is triable before the chancellor.” [Lee v. Conran, 213 Mo. l. c. 412.] That case was followed, after a thorough discussion of the subject, in a case’ where the point for review arose upon the answer in a suit under the statute to determine title, to which the defendant made the identical pleas made in the case at bar, but concluding his answers with a prayer for full and complete affirmative relief by the investiture of title, and for general relief. [Withers v. Railroad, 226 Mo. l. c. 384.] Speaking as to the state of the pleadings in that case, Division No. Two said, that while it was true that the setting up of equitable defenses without more would not change a legal action into one in equity, yet in that case there was a prayer for affirmative relief, and that this conjoined with such defenses did “convert the case from one at law to a suit in equity,” citing cases. [Withers v. Railroad, supra, l. c. 397.] And added, that this distinction brought the ruling of the court in harmony with the doctrine announced in the leading case of Lee v. Conran, supra. This latter case was also affirmed by this Division in Minor v. Burton, 228 Mo. l. c. 563. And again affirmed in Division No. Two in Frowein v. Poage, 231 Mo. l. c. 90.
We are cited to a recent decision of this court In Banc where a suit was brought to determine title, and it was held that the case was one in equity. The answer in that case “pleaded estoppel in aid of defend[160]*160ant’s title.” This is the only reference to the contents of the answer, and from it the inference may be drawn that the answer contained a prayer for affirmative relief; and, hence, the decision in that case was in harmony with those cited above. (The ruling in that case was over the dissent of Woodson and Graves, JJ.) [Nelson v. Jones, 245 Mo. 579.]
In the case at bar the petition merely stated that they “owned in fee” and “claimed title” to the property described. It presented no matter of distinctive equitable cognizance. The answer pleaded only matters* in bar and preclusion. A jury was waived on the trial. Instructions or declarations of law were requested by the parties and given and refused. The court made a finding of facts and law. Only one of the defenses— estoppel and laches- — presented ,any matter of equitable cognizance. It was interposed solely as a bar to plaintiffs’ suit. If it had been interposed in that form and to that extent only in any other legal action, including ejectment, it could not have converted such action into a suit in equity under the unbroken current of decisions in this State. Nor can it have that effect in the present case without destroying the symmetry of the law. The statutory remedy as it now exists for determining titles provides in explicit language for the bringing of legal as well as equitable actions which shall conform in all respects to the code of civil procedure. [R. S. 1909, secs. 2535 and 2536.] Under this statutory authority plaintiffs brought a strictly legal action. We do not see how the answer to that action can have a greater potency than the -same answer to other legal actions, except by the creation of an arbitrary rule. We think (as the record shows the parties thought on the trial below) that this was a legal action; and being submitted to the court, without a jury, the finding of facts has the force of a verdict of a jury. [Minor v. Burton, 228 Mo. l. c. 564, and cases cited.] We do not concur in appel[161]*161lant’s contention that the case is before ns for review as upon appeal in a suit in equity.
Plaintiff’s Title. II. The first point in appellant’s brief is directed to the assumed effect of the allegation in the petition, that plaintiffs are “the owners in fee and claim title to the following described real estate,” appellant’s contention being, that this allegation confines the proof of plaintiffs to the establishment of a legal estate in fee; and that failing proof of that exact estate, they must be cast in this suit. This is an erroneous conception of the statute under which this action was brought. The allegations of the petition are in conformity with the langauge of the statute and have been expressly approved as sufficient to obtain the benefits of the statute by this court. [Huff v. Land & Imp. Co., 157 Mo. 65; Spore v. Land Co., 186 Mo. l. c. 659; Ball v. Woolfolk, 175 Mo. 278; Elliott v. Sheppard, 179 Mo. 382.] These allegations describe full rights of absolute ownership and necessarily include any and all lesser titles, interests or estates, for it takes every degree of title to make up the perfect title of an absolute owner of land. It has been again and again ruled by this court, that the object of this statute (as expressly said in it) is to ascertain and define “respective titles” and to adjudge or decree the “several” estates of the parties between themselves. Whichever of the parties has the better title, is entitled to have it quieted against his adversary. It is not essential that either plaintiff or defendant should possess the highest form of ownership in land, such as would warrant a judgment investing him with a fee simple title good against the world. It is sufficient if one of the parties proves title and ownership superior to that of the opposite party. When this is done the owner of the better title has the right to a judgment or decree establishing it as against the [162]*162opposite party and quieting it from further attack by him. [Maynor v. Land & Timber Co., 236 Mo. l. c. 728; Gage v. Cantwell, 191 Mo. 698; Craton v. Land & Lumber Co., 189 Mo. 322.] Appellant cites the case of Stewart v. Land Co., 200 Mo. 281. An examination of that case will show that plaintiff while claiming a fee simple title gave no evidence of any title whatever. The defendant stood upon a demurrer to the evidence, and the ruling was that the case should be reversed and remanded with leave to the parties to amend their pleadings if so advised. The only point decided by the court was, that an allegation of absolute ownership on the part of the plaintiff could not he sustained, where there was no evidence of any kind of title. That case neither in the point in judgment nor in its reasoning gives any aid to the contention of appellant. 'We, therefore, rule there is no merit in appellant’s point, that plaintiffs’ petition precluded them from showing any quality of ownership, legal or equitable, in the land in dispute, which (though less than an absolute fee) was superior to that shown by defendant.
Common Source. III. The learned trial court found that the title to the land in controversy originated in a military land warrant in 1852 issued to one Albion Crow, whose title was devolved by mesne conveyances upon said Susan J. and William A. Summers and was of record in them at the time of its sale for taxes; that defendant’s title ran from the deed under the aforesaid tax sale. The law is well settled as to this proceeding, as well as in ejectment, that if a common source title is assumed by the parties on the trial of the case or pleaded or proven, then the only question is, which of the parties has the title of the common ancestor. [Machine Works v. Bowers, 200 Mo. l. c. 235; Stewart v. Land Co., 200 Mo. l. c. 291; Charles v. White, 214 Mo. l. c. 211; Gage [163]*163v. Cantwell, 191 Mo. 698; Nall v. Conover, 223 Mo. 477.]
Carleton's Abstracts, Infants. Appellant claims that no common source of title was assumed or pleaded or proven on the trial. We think a common source of title was assumed and attempted to be proven by defendant on the trial. At the time of the tas sale the record title to this property stood in the names of Susan J. and William A. Summers. It was the land described in the deed to them which the sheriff undertook to sell and convey. If the title of the record holders (Susan J. and William A. Summers) was not divested by the sheriff’s deed, then the purchaser under that deed (from whom defendant deraigned title) got nothing and could transmit no title to defendant, and the title remained in Susan J. and William A. Summers had vested in them by conveyances running hack to the military grant from the Government. Hence, it was" indispensable that defendant should prove that the sheriff’s deed transferred the title of the plaintiffs, and defendant attempted to show that fact by the evidence afforded in the recitals of Carleton’s Abstracts. Those entries are to-wit: “Entry 14; Pemiscot county; sheriff’s deed to Virg P. Adams; sheriff’s deed dated March 16, 1880; filed October 10, 1880, Book G, p. 57; consideration $7; acknowledgment regular;” a column of remarks under which are the words “S. J. and W. A. Summers.” The right to use these abstract entries as evidence is given by the Laws of 1907, which was enacted on account of the destruction of the land and court records in Pemiscot county by fire. The probative force of these abstract entries is wholly dependent upon the terms of the session act. Giving the fullest meaning to them, by assuming upon the oral evidence adduced, that the column of remarks was the heading under which was placed the names of the parties whose land was con[164]*164veyed by the deed, and the result is, that the above entries denote the making of a sheriff’s deed, dated and recorded as above stated, conveying the particular land sued for in this case, as the land of “S. J. and W. A. Summers” to the purchaser at the tax sale for a consideration of seven dollars. At the time of this deed Susan J. Summers was nine or ten years of age. The record strongly indicates that the brother had died and the sister had moved to Texas about that time, where she has lived ever since. There is nothing in the record which affords a legitimate inference as to whether the tax suit was begun by publication or by personal service. The sheriff’s deed referred to in Carleton’s Abstracts is non-existent, and hence we cannot gather anything as to its contents other than is afforded by the recitals, of the abstract. It would be prima facie evidence if it existed of the matters and things contained in it. [R. S. 1909, sec. 11501.] And also prima facie evidence that the persons named therein as defendants in the tax suit were the absolute owners of the land conveyed. [R. S. 1909, sec. 6346.] As it has been destroyed, we are left to what may be gleaned of its contents from the scant recitals of the Abstracts, to the extent these are made evidentiary under the Laws of 1907, p. 271. When this case was tried the act providing for the. use of Carleton’s Abstracts contained a provision not in the amendment of 1911 (Laws 1911, p. 254) but which was then in full force, to-wit: “In all cases in which any abstracts, minutes, copies and extracts, or copies thereof, which are made admissible in evidence under the provisions of this act, shall be required to be used in evidence, all deeds, conveyances, or other instruments appearing thereby to have been executed by any person or corporation, or in which they appear to have joined, shall (except as against any person or corporation in .the actual possession of the lands described therein, at the time of the loss, de[165]*165struction or injury of the said records of such county, claiming title thereto, and except also, as against infants and persons of unsound mind, at the time of the trial or inquiry), be presumed to have been duly witnessed, executed and acknowledged, unless the contrary appear therein.” [Laws 1907, p. 271.] At the time of this sheriff’s deed Susan J. Summers was an infant of tender years, and her brother, who died when eight years old, if then living was younger. Under the exceptions of the Act of 1907, set out above, the sheriff’s deed as against these minors, cannot he presumed to have been executed and acknowledged. It was clearly void in the absence of proper acknowledgment and execution. [R. S. 1909, sec. 11501.] Since the abstracts carry no presumption of its execution or acknowledgment, and as the deed itself was not produced and the record thereof was destroyed by fire, it is evident that there was no evidence in this case showing that any title was conveyed by the sheriff to defendant’s ancestor; and the trial court was right in its finding that defendant had no paper title to the land.
Learned counsel for appellant cites the concluding part of the Act of 1907, hut that paragraph does not touch the point specifically covered by the one before quoted. It refers to sales under powers of attorney, judgments, decrees or other legal proceedings, whereas the one cited above in express terms is applicable to the sheriff’s deed relied upon as the beginning of appellant’s title. And while it has been stricken out of the act by the act of 1911 (p. 254), it was a part of the act and in full force when this trial took place.
[166]*166Suit by Initials. [165]*165Again, if there had been proof of a valid deed by the sheriff, still if the tax suit was based upon publication, as it must have been if Susan J. Summers had left the State at that time, then the court acquired no [166]*166jurisdiction whatever of the parties, for the rule i-s ti-iat where a publication is made by using the initials of defendants who are the record holders of property in their Christian name, no jurisdiction is acquired, and the judgment rendered in a tax suit thus begun is void. [Shuck v. Moore, 232 Mo. l. c. 656; White v. Gramley, 236 Mo. l. c. 648; Spore v. Land Co., 186 Mo. 656; Vincent v. Means, 184 Mo. l. c. 344.]
Limitations IV. There was conflicting evidence in this case as to the continuity and hostile character of the possession of the land in controversy by the tenants or representatives of those under whom appellant claimed for the ten years prescribed by statute. The trier of the facts could, therefore, properly make a finding on that issue, as he did, that the defense of the Statute of Limitations was not made out. ITe was also at liberty from all the evidence in the case to find, as he did, that the defense of the Statute of Limitation of thirty years was not established. His conclusions on these issues are not subject to review in the state of the record on this appeal.
Laches V. The only question left in this case is, whether or not plaintiffs are estopped from asserting their title to the land by reason of failure to take any steps to assert it or to recover the land for about eighteen years after plaintiff Susan J. Summers, now Susan J. Toler, arrived at her majority. The evidence given by her shows that.she took the-deed to the land with Per when she left Missouri for Texas; that she left the State when about ten years of age; that she never .paid any taxes on the land nor authorized any one to do so on her behalf, her reason being that she did not wish to pay taxes until she reduced the land to possession; that while living in [167]*167Texas she had some correspondence with attorneys in Pemiscot county (letters and names not given) and that they declined to bring any suits for her to recover this land; that she secured the services of her co-plaintiffs, Brewer and Patrick, under an agreement shown by her quit-claim deed conveying to them one half of the land in controversy, of date August 21, 1905. The evidence is uncontradicted that during all this time the land has been claimed by the persons whose titles defendant acquired; that improvements have been made upon it; that money has been expended in clearing, and a partial enclosure; that the land has been successively tilled and cultivated by the agents of the grantees in the chain of title running back to the sheriff’s deed; and that the 160 acres have greatly advanced in value; that until the institution of this suit, in April, 1906, plaintiff Susan J. Toler made no claim to any right, title or interest in said land; but as far as defendant or his grantors knew, acquiesced in the claim of ownership made by him; that during the thirty years of non-claim by respondents, the public records of that county containing the sheriff’s deed and court proceedings have been burned and witnesses have disappeared. The learned circuit judge does not call attention to any fact or matter, in proof supporting his finding against the facts admitted by plaintiff in her deposition or established by the evidence. The defense of laches is based on the maxim, that he who seeks equity must do equity; it exists independently of the Statute of Limitation and arises whenever the holder of a paramount title with knowledge of his rights neglects to assert it as against an adverse claimant for .such a period of time that its assertion would prejudice the other party or put him at a disadvantage in proving his title. [5 Pomeroy Eq. Jurisprudence (1 Eq. Remedies), secs. 22 et seq.; Shelton v. Horrell, 232 Mo. 374; Cockrill v. Hutchinson, 135 Mo. l. c. 75; Rutter v. Carothers, 223 Mo [168]*168640; Stevenson v. Smith, 189 Mo. 447; Bucher v. Hohl, 199 Mo. l. c. 330; Loomis v. Railroad, 165 Mo. l. c. 495; Hudson v. Cahoon, 193 Mo. l. c. 562; Kline v. Vogel, 90 Mo. l. c. 247.] All the elements to constitute this defense were stated in the deposition of the plaintiff, or shown by the nncontradicted evidence of other witnesses. As trier of the fact, neither the circnit judge nor the jury could properly exclude from their view the evidence establishing this defense resting upon the admission under oath of the respondent, and the nncontradicted corroboration thereof by all the facts and circumstances in the case. The finding should have been for appellant on that issue.
Our conclusion is that the court at the close of the testimony should have been given a declaration of law that upon the pleadings and evidence the plaintiffs were not entitled to recover.
The judgment herein is reversed and the cause remanded with directions to dismiss plaintiffs’ suit.
Graves, J., concurs; Woodson. P. J.. and Lamm, J., concur in result.