Troll v. City of St. Louis

168 S.W. 167, 257 Mo. 626, 1914 Mo. LEXIS 312

• Court: Supreme Court of Missouri
• Decided: May 4, 1914
• Status: Published

Opinions

LAMM, C. J.

This suit is under former section 650 (now 2535) to try and determine title to real estate in the city of St. Louis. The pleadings cover seventy-nine pages of print. Absent any question raised on their sufficiency, we shall not reproduce even a summary of them. Presently something more will be said of them. For present purposes it will do to say that they are in scope and object sufficient to raise the- propositions discussed by counsel.

Dates are of significance. In 1871 Charles K. Dickson and John J. Murdoch were and for a score or more of years had been partners in St. Louis dealing under the firm name and style of Murdoch & Dickson. Possibly they were general partners as real estate dealers, but the scope of the partnership is not dear. In 1871 Dickson died, and Murdoch, as surviving partner, took upon himself the burden of administering upon the partnership estate under the auspices of the probate court, giving a bond therein in the penal sum of $125,-000. In 1873 Murdoch, having theretofore made two elaborate settlements in that court, as surviving partner made a statutory deed of assignment of the partnership assets to one John G. Priest for the benefit of creditors of Murdoch & Dickson. Subsequently in that same year, failing to obey an order of the court to give an additional bond as surviving partner, he was removed. Prom the record facts before us, we have no doubt the firm owed in excess of its assets and was insolvent. We take judicial notice of the historical fact that the times were ones of severe financial depression and falling prices. Among the firm’s liabilities of over two hundred thousand dollars was a liability of over eighty thousand dollars to Dickson, and ■one of thirty-four thousand to Eads, and one of about five thousand to Barton Bates, trustee. Dickson died •testate, his will nominating Barton Bates and James B. Eads, two of his friends, as executors. It also created a trust in the residue and remainder of his estate •and they were nominated trustees of the trust estate. 'There were excluded from this “residue and remainder ” only an annuity to his sister and his mansion bouse and grounds and personal property in and about dhe same and appurtenances to that establishment, devised to his wife absolutely. They qualified as executors, and in 1890 settled finally his individual estate .and were discharged, the final judgment in that matter showing Dickson’s individual estate indebted to them the rise of $46,000. Eads and Bates are both long since dead and so far as we can see never collected .aught of that sum. The history of the trust is not .disclosed. These same executors were sureties on the bond of John J. Murdoch as surviving partner of the firm of Murdoch & Dickson.

For twenty-two years, to-wit, 1873 to 1895., no steps were taken in the probate court by anyone interested -to appoint a successor for Murdoch as administrator .■of the partnership estate, nor was an entry made by the court. In August of that year, to-wit, 1895, the widow and children of Dickson filed a petition in the probate court “In the matter of Murdoch & Dickson,” praying that Richardson, public administrator, take ■charge of the estate of Murdoch & Dickson. This prayer was granted, and an order was made that Rich.ardson take charge and custody of all the estate of the late firm remaining unadministered. Later in that year said Richardson was appointed administrator d. «A n. c. t. a. of the individual estate of Dickson.

Doing back to pick up tbe thread of the assignment, in the meantime Priest as assignee proceeded with his assignment, collecting assets; allowing claims, disbursing moneys, and in 1874, joining with himself one Renick, he sued John Maguire and, say, seventy other defendants in the St. Louis Circuit Court in partition, claiming as assignee a one thirty-second interest in a tract of land known as the Brazeau Reservation located on the west bank of the Mississippi river and of an area of four by four arpents. (Note: This Brazeau Reservation, or rather this one thirty-second part thereof, is the subject-matter of the instant suit.) The defendants in that partition suit were said Eads and Bates as executors and trustees of Dickson, the widow and children of said Dickson, members of such families as the Harrisons,.the Clemens, the Harneys, the Yalles, the Chouteaus, the Filleys, the Lindells, Judge William B. Napton and many others. In 1875 such steps were taken in that suit as resulted in a partition sale of the Brazeau Reservation, it being divided by order of the court into lots, blocks, streets and alleys prior to the sale. At that sale, made en masse, Edwin Harrison purchased the whole tract for about $120;000. The sale was reported, approved and a deed made to him. It seems objections were made to the sale by Priest, assignee, which resulted in his getting from the purchaser the rise of seven thousand dollars for the Murdoch & Dickson interest, instead of the rise of three thousand dollars as a pro rata would have given him at the outset. Presently in the same year Harrison entered into possession under that purchase and deed, afterwards from time to time conveying parts of the tract (by lot and block descriptions) to different grantees at sundry times; as we understand it, the parts so conveyed were much the greater part of the whole tract. The grantees under his conveyances severally entered into immediate possession and severally spent great sums of money, some in tracks and railroad betterments, some in buildings and improvements. Prom 1875 down to this day, Harrison (during his lifetime) and his several vendees and subvendees (defendants here) have been in actual, open, notorious, continuous, peaceable and adverse possession of the respective parts of the Brazeau Reservation conveyed to them as aforesaid and this possession was taken and, has been continued under a claim of exclusive right and title. They have paid all taxes, estimated at a great sum.' Neither the Dickson heirs as remote beneficiaries in the Murdoch & Dickson partnership estate, nor the executors or trustees under Dickson’s will, holding the legal title thereunder, nor Murdoch, nor his heirs, remote beneficiaries, nor the creditors of Murdoch & Dickson (near beneficiaries), nor anyone standing in their shoes, nor representing them, have been in possession of any part of said Brazeau Reservation since 1875, or ever, on this record, directly complained in court of that partition sale till 1904. Shortly after obtaining his partition deed, Edwin Harrison executed and recorded a declaration of trust showing his purchase to be in his own behalf and in behalf of certain of his co-defendants in the partition suit, and that he held title as trustee. After being sued in the instant case he died, and defendant, St. Louis Trust Company, became his successor in trust and took and held possession of the remaining unsold part of the Brazeau Reservation.

In 1897, two years after his appointment, Richardson sued out of this court a preliminary rule in prohibition (141 Mo. 69) directed against the several judges of the circuit court of the city of St. Louis, citing them to show cause why they were assuming to-exercise jurisdiction of the Murdoch & Dickson partnership estate under the Priest assignment. On a return coming in, a peremptory writ issued on the judgment of a divided court holding the deed to Priest void, forbidding any further exercise of jurisdiction in the circuit court over the assigned estate, on' the ground the probate and not the circuit court had jurisdiction. Harrison and none of those claiming under him (defendants here) were parties to that suit, nor were any of their present defenses within the scope of the pleadings, nor were they directly adjudged. What remained of the estate of Murdoch & Dickson does not appear, but it does appear that Priest took possession' of assets valued at $40,000 (141 Mo. l. c. 72) and that when he applied for his discharge in 1888, he admitted the possession of $2,911 and some cents, which amount was increased on appeal to $9,632, and some cents (Ibid., p. 72. Vide, also, In re Assignment of Murdoch & Dickson, 129 Mo.488, where the record of a loosely managed estate may be read). It also appears that Richardson, administrator, came into possession of over $600. At d certain time Priest died, whether before or after the prohibition is not clear, but, having reported to the circuit court his proceedings as assignee at delayed intervals, we infer he never paid over the amount found due creditors, though it does appear from this record that he charged himself with and disbursed the rise of $7000, the amount realized for the Murdoch & Dickson estate at the partition sale.

In July, 1904, seven years more having passed, Richardson brought the instant suit against the city of St. Louis (said city claiming title to certain streets and a certain wharf) and against Harrison, and, as said, against an aggregation of individuals and corporations claiming title under conveyances under the Harrison partition title — several of them railroad companies occupying their several portions with their tracks, others manufacturing companies occupying their several portions with their plants. He also made the widow and children of Dickson parties defendant.

After the cause came into this court one of the Dickson children, John M., died, and his widow, Emma, executrix of his last will, entered her appearance and was substituted in his place. While the case was pending below Richardson was removed as administrator in charge and his successor in office, Harry Troll, was substituted as plaintiff. The Mississippi Valley Trust Company and Wiggins Ferry Company, two of defendants, bought their peace and the cause was dismissed as to them.

The trial court found for defendants and plaintiff sued out a writ of error in this court. For convenience we will refer to Troll as plaintiff instead of plaintiff-in-error and to defendants-in-error as defendants.

There was not a vestige of record title to any part of the Brazeau Reservation in the names of the two members of the partnership of Murdoch & Dickson by any conveyance. To the contrary, on September 20, 1852, by a deed then spread of record, Dickson for a consideration of $3750, acquired a one-twelfth interest of one Maguire’s three-fourths interest in that tract, thereby putting a one-sixteenth interest in him. In 1866 Dickson, one Renick and one Peterson and their wives (why Peterson and Rénick joined does not appear) conveyed to O. D. Filley (by deed spread of record in February, 1874, and reciting a consideration of $6,000) a one-half interest in the one-sixteenth interest Dickson got from Maguire, thus leaving a one-thirty-second interest remaining in him of record. The deed from Maguire to Dickson in 1852 made no reference to Murdoch or to the firm of Murdoch & Dickson, but put a straight legal title in Dickson as an individual. The first time or place that the firm of Murdoch & Dickson appears in this record as owning Dickson’s interest in the Brazeau Reservation is in .the inventory of the partnership estate filed by Murdoch in the probate court in 1871. It is there referred to as a one thirty-second part of the John Maguire tract of land in the northern part of St. Louis “being the same premises now in dispute between John Maguire and Mary Tyler” (of which more presently). In 1873 Murdoch had it appraised with other real estate and assets and its value was estimated at $10,-000, now swollen by the outlays of others and increase of real estate values to a great sum. The instant case proceeds on the theory on all sides that it actually and in truth was an asset of the partnership of Murdoch & Dickson, although the legal title was in Dickson individually. The Priest partition suit proceeded on the theory that the firm owned the equitable title in that one thirty-second interest in the Brazeau tract and that the legal title passed by Dickson’s will to Bates and Eads, executors and trustees under that instrument; and one main object of that suit was to clear up the title and perfect it so that both the legal and equitable title might unite and pass by the partition sale.

In brief, the theory of the petition in the instant case to quiet title is that the equitable partnership interest or equitable right of Murdoch & Dickson became, in the eye of the law, personal property for winding up purposes and by operation of law passed to Eichardson as administrator and thence to Troll his successor.

In a nutshell, the separate defenses of the several defendants, mutatis mutandis, are limitation, laches, and estoppel. There are side or subsidiary contentions in this answer or that, but the foregoing covers them all for our purposes.

By way of reply to such defenses plaintiff pleaded facts upon which his learned counsel base the contention that the one thirty-second interest in the Brazeau tract was, at all times after Murdoch gave bond as surviving partner, in the custody of the law, within the jurisdiction of the probate court, came within the scope of the doctrine of Us pendens, and, hence, neither laches nor any statute of limitation constituted a defense. ' The replies pleaded other facts avoiding, it is claimed, the application of any estoppel.

The trial court passed the question of estoppel sub silentio and found for defendants on limitation and laches, and plaintiff, as said, brought ■ error.

The city of St. Louis, not satisfied with the form of the decree, appealed to correct it. Its appeal is pending as a separate case aud will not be further noticed in this opinion.

Any further record facts, deemed by us necessary to a determination of material questions in judgment, will appear in due course in connection with a discussion of those questions.

We will not follow the heads or subheads of the aggregation of briefs, but will put our rulings under heads adopted by ourselves and the propositions there announced will dispose of those contentions we deem vital.

I. Of a foreword as a foreground (and herein of the pleadings and the history of the Braseau Reservation) and certain general observations.

, . Multifariousness, (a) No question of multifariousness was raised below or is raised here by defendants’ counsel and none of a misjoinder of parties defendant. Hence if the cause be- one in equity we are not called , upon to say whether the petition was open to attach below for multifariousness. Or, if it be at law, then, by the same token, we are not called upon to say whether it was open to attack below for misjoinder of parties defendant. We say so much to avoid misunderstanding and confusing good practice; for in Peniston v. Press Brick Co., 234 Mo. 698, and Chaput v. Bock, 224 Mo. 73, many defendants claiming to own distinct tracts in severalty (as here) whose titles depended in part at least on limitations (and were separately asserted, as here) objected to the omnibus character of the petitions and their objections were allowed as fatal in suits directed (as here) to clear up and adjudge title under former section 650. The doctrines of the Peniston and Chapnt cases we adhere to; hnt we shall assume (without deciding) that learned counsel on both sides considered the instant case as one in equity and that there was such common relation between defendants, .and such common interest or common question involved, that the equitable doctrine of avoiding a multiplicity of suits so controlled the situation as to permit a general bill of peace. [Vide the Peniston case, supra, p. 712.] That view of it reflects credit on counsel; for .it, we hope, permits squabbles over the Brazeau Reservation (that in one form or another have been on the carpet in State and Federal jurisdictions for nearly a century) to be finally cut off and set at rest at one judicial stroke. Debet esse finis litium. "We say one judicial stroke, not unmindful that it has. always been taken for evil that a bad emperor, Caligula, once wished all the necks of Rome made into one for his decapitation by-ends, and is claimed by some jocose persons to be the putative father of the “one stroke” theory. The doctrine of uniting claims of a certain kind against sundry individuals to avoid a multiplicity of suits is a sensible device of equity, applicable here. We use the word “hope” above,not unmindful of the conceit that (maybe) hope is not permitted to “spring eternal” in judicial breasts as Pope says it does in others, and that (maybe) if it does so spring it is subject to the same sad limitation, to-wit, that ‘ ‘ man never is, but always to be blest.”

Brazeayu0f Reservation. (b) And this paves the way to fetch a small compass on the remarkable history of the litigation over the Brazeau Reservation, in which counsel such as Ewing, Carlisle, Cushing, Blair, Krum, Hill, Glover, Shepley, Gamble, Geyer, at one time or another, only memories now, appeared at the bar and the judgments fell from such judges as Catron, Taney, Clifford, Nap-ton, Scott and Wagner, all gathered to their fathers.

When George Washington had yet a lustrum of life left to him, to-wit, in 1794, Don Zenon Trudeau, Spanish lieutenant-governor of Upper Louisiana, ‘ ‘ conceded” to Joseph Brazeau out of the “royal domains” a tract of four by twenty arpents on the Mississippi river about two miles from “the town of St. Louis,” a tract lying alongside the concession and survey of a “free mulatress,” Esther. [84 U. S. l. c. 293.] An arpent is a land measure varying in dimension from eighty-four hundredths of an acre to one acre and four hundredths and to one acre and twenty-eight hundredths, accordingly as the arpent meant is an arpent de Paris, an arpent commun, or an arpent d’ordonnance. In 1798 this same Joseph by deed conveyed to Louis Lebeaume (spelled in more ways than one)- the same concession, reserving therefrom to himself four by four arpents in the southern part “to be taken at the foot of the hillock.” [84 U. S. 1. c. 275.] This four by four arpents is the “Brazeau Reserva-, tion ’ ’ and hence its name. This Lebeaume dug a drainage ditch, not on the south line of his own arpents, but on the south line of those reserved by Brazeau, a ditch known in judicial records as “Lebeaume’s Ditch.” [Magwire v. Tyler, 25 Mo. l. c. 489.] The location of this ditch confused the south out-boundary of his land and figures much in the litigation, as does a stockade and an earth barn (“Grange de Terre”) and the “Big Mound” — all taking the mind back to a dim and almost forgotten past, a past older than the Treaty of Paris, that of San Ildefonso and that of Madrid, whereby good luck came to us,it is said,in heaped-up measure.

Before that, Lebeaume got a Spanish concession of 360 arpents “including that which he acquired from Brazeau.” Then he got in 1799’ a Spanish survey of the concession made by a surveyor, Don Antonio Soulard, in which Soulard (by slip or design) included the four by four arpents reserved by Brazeau. This added more confusion. Then followed in 1810 a confirmation in Brazean by a board of commissioners, acting under United States laws passed to carry out tbe terms of the Treaty of Paris and the obligations of Napoleon to Spain under the treaties of San Ildefonso and Madrid. The same commissioners confirmed to Lebeaume 356 arpents, four less than in his concession (evidently Brazeau’s reserved four). They then issued to Brazeau a “patent certificate” and ordered a survey of both confirmations. Then Brazeau conveyed his four by four arpents to Pierre Chouteau in 1816. Then Brown, United States surveyor, further confused the situation by surveying ‘ ‘ two tracts in one, ’ ’ Lebeaume’s and Brazeau’s. Then conflicting patents issued. Then by conveyances from Chouteau and his vendees, one “John Magwire” acquired Brazeau’s title to his reservation in January, 1852. This “Magwire” is.the J ohn Maguire of the present record, who eight months afterwards conveyed a one-twelfth in a three-fourths interest to Mr. Dickson as hereinbefore set forth. Lebeaume ’s title early passed off to one Chambers in another direction and the claimants under Lebeaume and claimants under Brazeau began “lawing” in the courts as early as 1823 in forcible entry and detainer, ejectment, equity to remove clouds, cancel patents, etc., etc., besides carrying on auxiliary contentions in the government land offices and before the Secretary of the Interior. We need not set forth in detail the vast snarl in surveys, resurveys, patents, certificates of patent, cancellation of patents and certificates, charges of fraud and mistake, and suits that, while, tó borrow Milton’s phrase, possibly gave rise to “fat fees and flowing contentions,” yet spread a blight over this reservation in the twenties, thirties, forties, fifties, sixties and seventies of the last century, all growing out of the location of Lebeaume’s Ditch and confusion in description and mistake of fact in surveys, certificates, confirmations and patents. It is sufficient to note that finally title to the Brazeau Reservation was, in 1872 or 1873, say two years after Dickson’s death, confirmed in John “Magwire” by a decision of the Supreme Court of the United States in Tyler v. Magwire, 84 U. S. 253, a notable case. Of nine judges on that bench when the opinion was handed down, one did not sit and three dissented; and so vexed was the question, so long drawn out the dispute and so reluctant had been the Supreme Court of Missouri to give full force and effect to a former decision by the Supreme Court of the United States on a writ of error in the same case, that the Supreme Court of the United States did not remand the case with directions, trusting to this court to carry them into full and rounded effect, but entered its own judgment determining the validity of Maguire’s title, and through its own marshal, put him in possession.

Peradventure, the student in case law following •the lead of a curious and scholarly spirit may find the judicial records of the history of the Brazeau Reservation not so hopelessly uninteresting or dry-as-dust affair as appears on the surface. If the game be worth the candle, then such an one may consult Maguire v. Vice, 20 Mo. 429; Magwire v. Tyler, 25 Mo. 484; Magwire v. Tyler, 30 Mo. 202; Magwire v. Tyler, 40 Mo. 406; Magwire v. Tyler, 47 Mo. 115; West v. Cochran, 17 How. (58 U. S.) 402; Maguire v. Tyler, 1 Black (66 U. S.), 195; Maguire v. Tyler, 8 Wall. (75 U. S.) 650; Tyler v. Magwire, 84 U. S. 253, and other cases referred to in those several reports where one or another question concerning title to the Brazeau Reservation was held in judgment.

There is a German word, sittlichkeit, which Lord High Chancellor Haldane, in his noble Montreal address before the American Bar Association, September 1,1913', in substance defines as the spirit and habit of life, the hidden and uniform ground of action of a people. Maybe a man, too, can have his sittlichkeit. Possibly it is too far a cry to say that an inanimate thing like a title to land or a piece of land, say, four by t four arpents, may have its custom, its trend, its sittlicfokeit; but sure it is this Brazeau Reservation was born to trouble as under an evil star — was as prone to trouble as sparks are to fly upward — and has had it in a turbulent career. Its destiny was cast rough. In chimney-corner phrase, it was always in hot water. In the midway of that career in 1852 Mr. Dickson (with the litigation yet twenty years to run) bought into the lawsuit by buying a one-sixteenth interest, we shall assume for speculative ends. It is charged in briefs of respondents and vehemently denied in appellant’s that his children under cover of the name of the public administrator reopened the litigation on another issue and in another form in 1904 and continued it since for the same speculative ends, to press a thorn in their side and compel the present claimants to severally buy their peace. We say neither aye nor nay on those contentions, but we point to the fact that during the former litigation the tract remained unimproved except by an indifferent and humble house, or so, now and then occupied; that it mostly, at the earlier periods of the litigation, remained open and unoccupied ; that the improvements were not worth while so late as 1875, though it had become part and parcel of a great city and should have borne its proper share in the betterment of the town; that when the land passed to Harrison and from him in great part to those holding under him, then (and for the first time) improvements were made to the amount of hundreds of thousands of dollars on the faith of an established title; and that the effluxion of time and laches have been so marked that their title ought not now to be disturbed except for the gravest reasons and only to preserve settled and indispensable principles relating to real property. If this ca.se is to be ruled justly, it must be ruled in the spirit of those observations and not otherwise.

II. Does section 650 relating to a remedy for determining and adjudging title to land apply to railroad pa,rties defendantf

_ . .. _... . suit Against Railroad. This is a real estate action to adjudge title as a prerequisite, a forerunner to a recovery of possession and a sale of the land for the purpose of winding up a partnership estate. Presently, before we dismiss this opinion, we shall have something further to say of this general feature of the case in connection with a contention made by appellant. For present purposes a question springs, to-wit, the railroad corporations, parties defendant, having many years ago acquired the Harrison title and devoted the land to trackage uses as an integral part and parcel of their- railroads, is the remedy against them or either of them, if any, not one for damages instead of for a decree of title heading towards possession and ultimate sale of the land? There is a doctrine of the law to the effect that the true owner of land may be estopped from bringing a possessory action, or what amounts to the same thing, the recovery of the land, where the original entry by the railroad was unlawful (as it is claimed in this case it was) and where he knowingly permits or acquiesces in the placing and use of railroad tracks upon the land as part of a railroad system. Under such circumstances, where the land itself is permanently appropriated for railroad purposes, a sound public policy requires that such appropriation be left intact as a fait accompli, and that the remedy of the land owner be confined to an action for the value of the land by way of damages. [Alexander v. Railroad, 138 Mo. l. c. 473 et seq., and cases cited; Second St. Imp. Co. v. Railroad, 255 Mo. 519; Rivard v. Railroad, ante, p. 135.]

Whether the facts justify the application of that doctrine to this case need not be looked into or decided. No such question is raised by learned counsel. We may assume, then, that both sides concede the case well brought under section 650', insofar as the stated and foregoing proposition is concerned. We only allude to the matter now so that it may not hereafter be contended that by overlooking it we inadvertently introduced confusion into the administration of the law. It is trite doctrine that parties can not complain if the court adopt on appeal their common' trial theory; though, if the question were here on facts justifying its application, it would be well worth while to look into plaintiff’s right to do the following thing (which thing he emphatically seeks to do), to-wit, to have title adjudged to real estate under a statute solely relating to real estate, when in no possible event would he be entitled to the land itself, but his only remedy would be for damages measured by the land’s value. Clearly the statute in question was never intended to clear up a title to mere damages, or to a chose in action. But we drop the subject with the pronouncement that the question is reserved for some case turning on it.

III. Of fraud.

Fraud: Based on Conjecture. Running like a marking thread through the several briefs of appellant is a heavy charge of fraud-fraud against the dead in their graves. At places it is boldly made; at others by innuendo and in an undertone as if to hoot away the reputa^-on 0£ ^oge wp0 carmot answer — fraud in the administration of the partnership assets by Murdoch, surviving partner; fraud and covin in that his sureties,Bates and Eads,aided or acquiesced in that ad-' ministration; fraud in Murdoch’s assignment to Priest; fraud and covin in Bates and Eads taking no steps in the probate court to have an administrator appointed in lieu of Murdoch, removed, so that his bondsmen could be brought to book; fraud in bringing the partition suit; fraud and covin in the conduct of that suit by the attorneys on both sides; fraud and covin In the parties defendant in that suit not answering, in consenting to a decree whereby the land was sold instead of partitioned in kind; fraud in the circuit court’s assumption of jurisdiction and so on and so on. The story is long and details unimportant in the view we presently take of the question. We can not quite make out whether the probate and circuit courts are also tarred with the same stick or whether the creditors of Murdoch & Dickson (who seem, as things stood, to have been the only ones vitally interested in the estate) are also accused of fraud in Murdoch’s administration, in the matter of that assignment and in the subsequent partition sale and Priest’s dealings with the estates, or not.

That there may be no mistake about the fact that fraud is depended upon by plaintiff as a deciding element in the case — we reproduce the animated conclusion of one of his briefs, thus :

“The relation of the widow and children of Dickson to the estate is sufficiently set forth in the will. Suffice it to say that they had no right, title or interest in this property when Harrison acquired title. They were the remote beneficiaries of a trust estate the title to which was vested absolutely in Eads and Bates. Of all the world they alone were under no obligation to inquire into the estate’s affairs. We are not dragging them” (the parties to the fraud) “out of their graves. We point to the ineffaceable records of two courts. We are seeking to uphold the law’s majesty. Defendants are seeking to drag it down. They are the beneficiaries of this monstrous fraud on the law and courts.

“Says Pomeroy in his Eq. Jur. (3 Ed.), see. 918: ‘ The remedy which equity affords to the defrauded persons is most extensive. It reaches all those who are actually concerned in the fraud, all who knowingly and directly participated in its fruits, and all those who derive title from them voluntarily or with notice. “A court of equity will wrest property fraudulently acquired, not only from the perpetrators of the fraud, but, to use Lord Cottenham’s language, from his children and his children’s children, or, as elsewhere said, from any persons amongst whom he may have par-celled out the fruits of his fraud.” ’

‘ ‘ When the frauds are committed through the juggling of jurisdictions and unbridled usurpations, the. question is above equity and relates to government itself.”

On the other hand, in some of defendants’ briefs is a defense to those charges we will leave unstated for the reason that as to the charge of fraud we rule it falls out of the case and should be put to one side as a deciding factor. This is so, because:

The settlements of Murdoch are elaborate, but are obscure in matters of charge and disbursement, which, as we see it, a single word or so by the responsible actors might have cleared up in life. To some extent the same is true of Priest’s. Moreover, as far as we know the creditors of Murdoch & Dickson,if not dead,in person do not now and did not then complain of fraud. No creditor appeared then or appears now to say in person, lo! here it is, or there it is, or to- put his finger on a fact proving fraud. With an insolvent partnership estate on Murdoch’s hands, observe, the shoe pinched the creditors and no one else; for if the estate was insolvent, as we hold it was, then the widow and children of Dickson or the widow and children of Murdoch, had not a particle of interest in the corpus of the estate as remote beneficiaries. If those creditors be dead, then during life, when under a call to speak and act, they murmured not and ‘ took no steps to surcharge Murdoch’s accounts, or to put themselves in .a position to sue on his bond. They did not, so far as this record discloses, pursue the individual estates, but, as to fraud, remained mute and rested satisfied. Look at it. Murdoch is dead. Eads is dead. Bates is dead. Priest is dead. Harrison is dead. Verily, while the dead tell no tales neither- can the dead defend themselves against- tales. The lawyers in the partition suit are dead as well as most if not all of the defendants in that case. We have the right to assume the creditors are dead, too, for does not every man of ns shortly meet up with death and his scythe? Under such circumstances, with those dead who should have lifted up their voices and cried “fraud,” if fraud there was, and those dead who could have defended against the cry, if it had been made, this belated charge of fraud by the public administrator (a new king that arose up over Egypt and knew not Joseph, Ex. 1-8) — a charge based largely on speculation, conjecture and theory-can not now be answered except by conjecture, speculation and theory; for the dead lips of those who knew the facts pro and con can not establish, justify, explain or excuse. Mark, we are not dealing with a case where actual fraud is proved, but with one where inferences of fraud are said to arise, where the facts (unexplained) are said to bear a sinister look and to deserve a sinister twist.

Now the fireside -rule, preserved in the wise Latin, is: De mortuis nil nisi bonum. Equity and Law are not so deadly cold, withal, as to eschew all sentiment, or turn their faces to the wall and away from all human feeling. Hence, some of their accepted rules are: Fraud is never presumed and may not rest alone on supposition or conjecture. Men are presumed honest. The doctrine of ‘ ‘ original sin ’ ’ is not applied in equity. [Troll v. Spencer, 238 Mo. l. c. 102.] So, if in the pursuit of fraud, two judicial views are open on the facts, one in favor of honesty, the other contra, the law (an invention of men for their welfare) but agrees with human nature in saying we must take the nobler view. So, the maxim is: In cases of doubt the more generous and more benign presumptions are preferred. (Nobiliores et benignores, etc.) The rule of the fireside, quoted above, finds its beautiful prototype or supplement in equity when the fraud is charged against the dead and a pronounced lapse of time has intervened. Says Chief Justice Fuller finely in Hammond v. Hopkins, 143 U. S. l. c. 274:

“In all cases where actual fraud is not made out, but the imputation rests upon conjecture, where the seal of death has closed the lips of those whose character is involved, and lapse of time has impaired the recollection of transactions and obscured their details, the welfare of society demands the rigid enforcement of the rule of diligence. The hour-glass must supply the ravages of the scythe, and those who have slept upon their rights must be remitted to the repose from which they should not have been aroused.”

In charging the jury in a will case, with fraud the gravamen of the action, Mr. Justice Grier, on the circuit (Turner v. Hand, 3 Wall., Jr. [U. S. C. C. R.], 111 et seq.) let fall some just observations on fraud I am fond of. I esteem them as profoundly acute and apposite. They have worthily found imperishable place in a scholarly treatise (1 Moore on Facts, p. 83 et seq.), to-wit:

“You must remember, that the burthen of proof is on the party who alleges fraud. That fraud, though proved by circumstances, can never be presumed — for fraud is a crime. It is not enough to show suspicious circumstances. Suspicion is not proof. It does not require a great deal of ingenuity to cast suspicion of fraud upon any transaction.

“There is a very great and sometimes grievous error into which not only the public mind, but that of jurors and judges too, are apt to fall; and which leads to false judgments, and sometimes to great oppression. I would, therefore, especially call the attention of the jury to it, and caution them to beware of it. It is this: The law abhors fraud. Every honest mind hates it, and even those who practice it themselves will join in the denunciation of it. It makes them feel virtuous for the time, and they are the most ready, from the arguments of conscience, from judging of others by themselves, to believe it true, and inveigh most loudly against it. When the clamor of fraud is raised in a community, or when it is confidently charged by counsel in a court, .we are prone to see all facts through a false medium, which magnifies the importance of every fact from which suspicion of fraud may be raised, and ignores the plainest inference against it. In the midst of our virtuous indignation against fraud, we first assume it has been committed, and then seek for arguments to confirm, not our judgments, but our prejudice. ‘Trifles, light as air,’ then become ‘strong as proofs of holy writ.’ Circumstances which to- an unprejudiced mind are just as-compatible with innocence as guilt; which at best could only raise a suspicion, are set down as conclusive evidence of crime. Those who sit in judgment over men’s rights, whether as courts or jurors, should beware of this natural weakness to which we are almost all of us subject. We all fancy ourselves wiser than perhaps others are willing to give us credit for. This feeling is gratified by what we believe to be superior sagacity. Rogues may be cunning, but they can’t deceive us. Under this satisfactory belief, we become over-astute, and often see that which is not to be seen. We suffer our imaginations to take the rein from our judgments, and rush headlong in this chase after the fox called fraud. Circumstances which should avail for the proof of fraud, are such only as are inconsistent with a contrary view of the transaction, and lead irresistibly to that conclusion.”

Each and every of the premises in mind, admonished by the record facts and the legal propositions advanced, we take the most benignant view possible and, hence, put fraud to one side. This leaves us to confront tlie two main propositions in the ease, laches and limitations. We take them under one head because plaintiff has a common answer to both, viz., lis pendens and custodia legis.

IV. Laches and limitations (and herein of custodia legis, Us pendens, and State ex rel. Richardson, Admr., Dickson et al. v. Withrow et al., Judges, 141 Mo. 69, and of estoppel).

Of those seriatim.

fN0rWDecreend (a) It is argued on defendants’ behalf that the decree can stand on the theory of estoppel. We shall not develop the facts, let alone belabor the point or allow the case to break on it. As estoppel and laches may meet in a faded line or overlap at the edges, those elements of estoppel in pais which exist (as they do) may presently serve as a handmaiden to laches. It is in the main argued that the acceptance by the creditors of benefits (by way of disbursements by Priest of the purchase price of the one thirty-second interest of Murdoch & Dickson arising on the partition sale — disbursements made for the benefit of the estate and its creditors it is claimed) raises an estoppel. There is a doctrine arising from the acceptance of benefits or from election, or taking inconsistent positions, which precludes a party, sui juris, from objecting to a decree or deed under which he has with knowledge and notice accepted benefits, although the decree or deed be void. That doctrine is denominated guusi-estoppel in the books. [Hector v. Mann, 225 Mo. l. c. 245 et seq.] But the trial chancellor did not put his decree on that ground and we lay it to one side on this appeal because of that fact, absent an appeal by the defendants.

stare Decisis (b) Ex industria and with vigor, a thrust is made by defendants at the soundness of the doctrine of State ex rel. v. Withrow, 141 Mo. 69. With the same set Papóse and vigor that thrust is parried by plaintiff. As already pointed out, the judgment in that case was to the effect that, in the state of our statutes in 1873, jurisdiction of a partnership estate could not be transferred from the probate court to the circuit court by means of a voluntary assignment of the surviving partner under our statute on assignments, hence the deed of assignment was void. "We are asked to explode that doctrine and to rule that a surviving partner had the clear legal right in 1873 to make a general assignment of the partnership estate for the benefit of its creditors' and thus put the burden of marshaling, the assets and administering the estate oh the assignee and within the jurisdiction of the circuit court. Counsel leave no stone unturned in their attack and defense of that case. The general law of partnerships on the right of a surviving partner to settle the estate, the early statutes, the evolution of those statutes by amendments making inroads on the general law, precedents, reason — all have been levied upon and brought into play on one side’ and the other in the glow and ardor of the work. While the discussion has been illuminating and the field an inviting one for exploration, while we have been both informed and interested, yet it boots nothing; for we have not been persuaded to overturn that case. What say the maxims: Obedience is miserable when the law is uncertain. Where the law is uncertain there is ne law. There was need of a rule and the case established the rule. No harm or injustice can spring from it. Stare decisis.

Laches (c) Laches is a word of rare or obsolete use in ordinary discourse. At root its meaning is laxness, negligence, neglect. The word,. however, is in live 1186 as name °f a doctrine, or concept, found useful in the administration of justice— a doctrine forged in the workshop of equity. Laches consists in not doing something which" a party might do and might reasonably be expected to do in the vindication of his right. Laches, as an unreasonable or unexcused delay, is the antonym of vigilance, which latter in turn is a synonym for activity and diligence. Laches does not rise to the rounded dignity of estoppel and yet in its equitable application it borrows from the doctrine of estoppel. While time is an element in it, yet it moves independently of limitations. To lay down a rule for the application of laches to all cases is impossible. The doctrine is not applied mechanically and to every situation where there has been any neglect at all, but each case must stand on its own facts in that regard. Speaking to the doctrine generally it may be said that where a party has some natural justice behind his claim, he may invoke in its protection the equitable doctrine of laches, a doctrine that is “free from artificial or fixed rules, having regard to the relation of the parties to each other and the subject-matter, to be applied to each case in accordance with its own particular circumstances in order to reach substantial justice — for instance, where plaintiff lies by an unreasonable length of time awaiting a rise in land or some future event to determine his course, or where by acquiescence or by sleeping upon Ms rights he creates the belief in others that those rights are abandoned whereby he influences them to act on such belief, or where something has intervened whereby the party asking relief would obtain an unconscionable advantage if the relief were given.” [Rutter v. Carothers, 223 Mo. l. c. 640.] Laches is “principally a question of the iniquity of permitting the claim to be enforced —an iniquity founded upon some change in the condition or relations of the property or the parties.” [Quoted approvingly by Graves, J., in Shelton v. Horrell, 232 Mo. 375, from Caldwell, J., in Lemoine v. Dunklin County, 2 C. C. A, l. c. 347.] The philosophy of the doctrine of laches is elegantly formulated by Mr. Justice Brewer in a pronouncement our Brother Graves also quotes approvingly in the Shelton-Horrell case (p. 376):

“No doctrine is so wholesome, when wisely administered, as that of laches. It prevents the resurrection of stale titles, and forbids the spying out from the-records of ancient and abandoned rights. It requires of every owner that he take care of his property, and of every claimant that he make known his claims. It gives to the actual and longer possessor security, and induces and justifies him in all efforts to improve and make valuable the property he holds. It is a doctrine-received with favor, because its proper application works out justice and equity, and often bars the holder of a mere technical right, which he has abandoned for years, from enforcing it when its enforcement will work large injury to many.”

The facts in this casein no small tones call out for the application of the doctrine of laches against plaintiff’s claim, unless, indeed, there be an insurmountable obstacle in the way (an insistence by plaintiff we will consider presently), for the wit of man could not invent a more typical case of neglect — a case in which the omission to move for many years has caused vast changes to be made in the betterment of the property and in the rise of values — a case in which it would cause a just man instinctively to cry out against holding that defendants, who in good faith invested great sums to improve the property, should now lose part of it on this newly-sprung, newly-asserted stale claim. It seems to us that the fact that a just man would cry out instinctively against it is none the less apparent when it is seen that those persons behind the public administrator (whoever they may be) would thereby reap where they have not sown and gather where they have not strewn; for, observe, it is only by death of creditors and death of-their claims that the Dickson heirs reap aught of a harvest.

The creditors of a partnership have the primary right to have their claims against the partnership paid ont of the partnership assets. If time be reckoned from the removal of Murdoch as administrator up to the appointment of the predecessor of Troll, twenty-two years went by — if time be reckoned up to the institution of this suit, thirty years went by — while these creditors stood idly by with shut eyes and hands on their mouths until they saw a city built on the land they claim was devoted to the payment of their claims. If the claims of creditors, whether in the form of allowances in the probate court or elsewhere, have long since perished by the flux of time, as we believe to be the fact, and if this valuable property is now to drop like a ripe plum from a judicially shaken plum tree into the lap of Dickson’s heirs because those primary claims (with those who owned them) have perished, whereby death brings a windfall to them, then the doctrine of laches applies to those beneficiaries too; for what the creditors saw, they saw; what the creditors-did, they did. It was six of one and half a dozen of the other. The record shows they have been sui juris for a fourth of a century or more. No conceivable reasonable excuse can be given why they did not move with diligence and vigilance. Observe the theory now advanced by plaintiff’s counsel is that the circuit court was without jurisdiction of the assignment and partition, hence Harrison’s deed was void. If that he so, what obstacle was in the way of creditors moving at once, or the heirs moving sooner? Equity, it has been said, above all things desires the wronged to have restitution, but it also abhors sloth and favors diligence. A court of conscience does not sit to correct the evils of negligence. When it confronts laches equity remains passive. The maxim is: Gross neglect is equivalent to fraud. Magna culpa dolus est. We leave the' matter with a question: Should equity, which is a synonym for natural right and justice, whose golden rule and great commandment is to do to others as we desire them to do to us (as Justinian puts it, Inst. 1, 1, 3: “to live honestly, to harm nobody, to render to every man his due”), refuse to apply the doctrine of laches to plaintiff’s ancient claim? We trow not, unless to do so contravenes some stubborn and controlling principle of law yet to be reckoned with.

L'm'tations ■ (d) One of the defenses was limitation. It has always been a main concept of civilized man that long possession was the law of peace. That idea is crystallized in our Statute of Limitations and in the general doctrine of prescription. Statutes of limitation are no longer in disfavor. The modern doctrine is to look on them as highly salutary. [Dudley v. Clark, 255 Mo. 570.] Plaintiff is the mere representative of the rights- of others in the administration of the estate. He has no individual claim. If those others are bound, he is bound — if loosed, he is loosed. There is no sign -in this record that back of him in his administration is a live creditor with a live claim or a dead creditor with a live claim. If there be only dead creditors with dead claims (shadows of shades) then the rule is: out of nothing nothing comes. (Ex nihilo, etc.) It is significant that no creditors moved in his appointment. It is not of insignificance that the heirs of Dickson alone moved. Nor is it of insignificance that' they are made parties defendant only apparently to help swell the refrain of the petition, which they do. But if the fact be conceded to him that there are any such, then the further conceded facts of the case show that one or another statute of limitations has run in favor of defendants as against any claim to the land, whether asserted by him for creditors or asserted by him for the heirs of Dickson under the cloak of an administration; provided, of course, some principle yet to be discussed does not avoid limitations. Every recognized and trite element of limitations is present, to-wit: (1) the presence of a period of time prescribed by tbe statute, (2) tbe presence of a claim of right and title, (3) tbe presence of an actual, uninterrupted, peaceable and adverse possession during the prescribed time, and, we may add, (4) with at least a color of title, as color is defined in tbe books. That in this jurisdiction limitation is both a sword and a shield, both a bar to an action and a conferring of title to land, is no longer in need of citation or open to debate. Tbe proposition announced is not to be weakened or varied by any lack of jurisdiction or by any irregularities in tbe partition proceeding in tbe circuit court, or tbe badness of tbe partition deed. Let tbe partition deed be taken, without discussion, as void as bottomed on a void judgment, and yet it matters not a whit in tbe face of tbe conceded facts of this case relating to adverse possession as against tbe whole world, as we have set them down.

(e) In paragraphs c and d reference is made to a contention of plaintiff that tbe doctrines of laches and limitations are suspended or their application prevented in this case because of two things, lis pendens and custodia legis — a, contention in tbe nature of confession and avoidance. Let us look to that.

(1) Of lis pendens in the circuit court.

l¡s pendens We may fail'to follow all tbe recondite argument of plaintiff (recondite because tbe subject-matter is abstruse) but, as we grasp one phase of it, it is that tbe partition suit is still pending undisposed of in tbe circuit court. That contention is made to seek root or countenance in tbe fact that at a certain time by agreement of parties tbe cause was improperly (it is said) transferred from one division of tbe St. Louis Circuit Court to another and tbe approval of the report of tbe partition sale (then pending on exceptions) was made in tbe latter division, hence never was made at all in contemplation of law. Hence, too, tbe matter has been pending from that day to this without a final judgment, and tbe purchaser at that sale, Harrison, bought pendente lite and he and those holding under him take with notice.

The point is without substance, because:

We need not allow it to ride off on the narrow question whether at the time of the pendency of the partition suit jurisdiction of a suit pending in one division ■of the St. Louis Circuit Court could by agreement be conferred on another division. There is no meat on that bone. It is bare, and gnawing it avails nothing. Mark, plaintiff does not want the judgment reversed in order that the proper division of the circuit court might take back jurisdiction of the partition suit and confirm or reject a report of sale sleeping for forty years in the files. Not at all. Contra, plaintiff’s whole case stands on the foot that neither division of the circuit court had or could ever have a shred of jurisdiction. That from a to izzard the suit was mummery, nothing, “monstrous usurpation,” the decree void, every step leading up to it illegal, and, hence, the deed itself void as a crowning act of a series of invalidities. Plaintiff may not blow hot and blow cold on the vital ■question of jurisdiction. He may not in one breath deny jurisdiction and have his claim allowed (as here), and in the nest assert lis pendens which assumes jurisdiction as a postulate. He may not even be lukewarm (Rev. 3:15,16). If the circuit court was without jurisdiction, ah initio, as plaintiff must and does claim, then, where was the lis pendens in the circuit court? It is trifling with terms, it seems to us, and putting the matter into a mere limbo of confusion to speak of lis pen-dens in connection with a litigation in a court without jurisdiction of the subject-matter, ergo without authority to enter any decree or grant relief. Lis pendens means a suit, a controversy in court. It involves the essential and primary concept of jurisdiction of the subject-matter of the litigation and of the parties. Hence jurisdiction to enter a decree or make a finding involving the subject-matter and parties is indispensaMe to lis pendens. We are not dealing with'the statute, for the record does not show a record of a notice of lis pendens, but we are dealing with the general law. ■! ‘ The policy on which the doctrine of lis pendens is founded, is to give full effect to the judgment which might be rendered in a suit depending at the time of the purchase. ’ ’ [Herrington v. Herrington, 27 Mo. l. c. 562.] If, then, no judgment be possible because the court is without power to render any, it is nonsense (or, to use a phrase of the ancients, it is milking a he-goat into a sieve — a double absurdity) to stress lis pendens, a mere incident to a judgment, when a judgment was impossible. Incidents, peradventure, come in and go out with the principal thing to which they are incidental. Incidentia rei tacite sequuntur. “In order that an action may be Us pendens the court must have jurisdiction .of the subject-matter as well as of the person of defendant.” [25 Cyc. 1461.]

We conclude, then, that plaintiff’s ease cannot prosper on the theory lis pendens in the circuit court avoids either laches or limitations.

(2) Of custodia legis. In a brief of marked refinement with subtle distinctions and ramifications (all lending a scholarly charm of industry and research), plaintiff’s counsel maintain that the Dickson one thirty-second interest in the Brazeau Reservation was at all times in the custody of the law, by virtue of the jurisdiction of the probate court, as an asset of the partnership estate of Murdoch & Dickson, hence neither limitations or laches apply.

Legist'3 It is a bit difficult to follow the argument of counsel on whether it is meant that the actual property itself, the res, or the title to it, was in the custody <bf the law. If mere “title” is meant, then it is self-evident that the legal title was in Dickson individually, and on his death, testate,, and under the terms of his will, passed to his executors and trustees, Bates and Eads, who were active trustees and not immune from either laches or limitations binding them as well as the beneficiaries of the trust. Under no possible view did that legal title come into the custody of the law as an incident to the jurisdiction of the probate court over the partnership estate. It is plain enough that, under the record we are dealing with, such legal title could only be made subservient to or united with the equitable title by the decree of some court having equity jurisdiction or by apt conveyance.

If the equitable title is meant, then we confront two propositions: First, is mere title within the concept of custodia legis as that concept is developed and understood in the law? Second, did Murdoch hold the equitable title by virtue of the jurisdiction of the probate court, or in his own right by virtue of the fact that he was surviving partner and had an interest in the. property as such, together with the right to conserve and wind up the estate, which right was subject to be taken from him in certain contingencies pointed out by the statute? We reserve the last question because in our opinion a determination of it is not necessary. As to the other we say this: To enlarge the boundary of custodia legis to include the. mere concept of title as a separate entity and as contradistinguished from actual adverse possession of the thing itself, the physical land (which, possession, in turn, créales title), is going further than any case known to us has gone. Take an a-b-c case: Roe has title, legal or equitable. Doe had adverse possession for the statutory period under a claim of right. What becomes of Roe’s title in that case? Does not the boot, title, shift to Doe’s foot?

Custodia legis involves the actual domination over some objective thing by the court. It may be corporeal or incorporeal, but it is not a controversy, a question or an inquiry. [Rothschild v. Hasbrouck, 65 Fed. l. c. 286 et seq.]

Custodia legis is defined to be “that custody only which an officer has the right to assume , over property by virtue of legal process.” [12 Cyc. 1025.] It would include attached property or property actually held by a replevin writ, or property actually held by a receiver as a hand of the court, or property actually held by a general administrator and actually a part of the estate. “When property is lawfully taken, by virtue of legal process, it is in the custody of the law, and not otherwise.” [Ib., note 43.] To enlarge the doctrine so as to include the mere controverted right to possession and not the actual fixed possession itself in the officer is a refinement that would lead to unexpected and serious results — a refinement repudiated in set terms in Strode v. Gilpin, 187 Mo. l. c. 392. Take an a-b-c case to illustrate: Jones, administrator of Smith, deceased, has a horse in his possession as part of Smith’s estate, which horse is claimed by Brown and is his. If Brown sue Jones in replevin for possession is he to be defeated by the doctrine of custodia legis? Or if Jones, administrator, be put in possession of “X,” a tract of land, as part of Smith’s estate, and Brown, claiming to own the land, sue in ejectment, does the doctrine of custodia legis defeat him? Or if Jones, administrator, be ordered to take possession of decedent Smith’s real estate and tract “X” be claimed as part of the estate and Brown be in possession and Jones sues, is Brown’s defense of ownership cut out by the doctrine of custodia legis.

But turn to another view. There is a doctrine of the law that may be stated in this way: “Real estate purchased with partnership funds for partnership uses, though the title be taken in the name of one partner, is in equity treated as personal property so far as is necessary to pay the debts of the partnership and adjust the equities of the partners. For this purpose, in case of the death of such partner, the survivor can sell the real estate; and, though he cannot transfer the legal title which passes to the heirs or the devisees of the deceased, the sale vests the equitable ownership, and the purchaser can, in a court of equity, compel them to convey that title.”

The foregoing syllabi are the sum of the matter in a leading case, Shanks v. Klein, 104 U. S. 18. The foregoing is also the doctrine of this court. [Easton v. Courtwright, 84 Mo. l. c. 37 et seq.] The title thus vested in the purchaser is the equitable title once vested in the surviving partner for winding up purposes. “It is an equitable right joined with an equitable title, which courts of equity will recognize and protect.” [Shanks v. Klein, supra; Easton v. Courtwright, supra.] If it is thus an equitable right coming within the jurisdiction of equity, how can it be said to be within the jurisdiction of the probate court and thus be within the doctrine of custodia legis by virtue of that court’s jurisdiction? Apparently it would lead to a confusion of fundamental ideas to hold as we are asked by plaintiff to do.

The plain common sense of the matter is that neither the legal nor equitable title was in custodia legis in the probate court, and if we pass from mere title to the custody of the very thing itself, to-wit, Dickson’s one thirty-second interest in the Brazeau Reservation, that custody, “the actual domination” over the objective thing, has been in the hands of Harrison and those defendants holding under him for nigh forty years. If Murdoch was entitled to it, he thereby lost it. If plaintiff be the successor of Murdoch, he stands in Murdoch’s shoes, and what was lost to one is lost to the other.

Moreover, conceding that in the eye of equity, for liquidation and winding up purposes, Dickson’s one thirty-second interest in the Brazeau Reservation was personal property and constructively in the possession of the probate court’s administrator by virtue of that court’s jurisdiction, yet the law would be inefficient and lame indeed were it to allow it personalty for all purposes. It is still real estate in fact. It is real estate for the purpose of conveyance and under the law of conveyancing. It is real estate within the purview of the revenue and registry laws. Why is it not real estate for the purpose of the application of the Statute of Limitations and the doctrine of laches? The correct answer to that question we think is: it is.

It must he remembered that plaintiff is in a court of equity in a bill seeking relief under a statute relating to real estate, not personalty. He seeks a decree of title to land, not personalty. Under such circumstances, to ignore the settled principles of law relating to real estate, like laches and limitations, and allow this case to break only on- the fiction of equity that for winding up purposes the real estate of a firm is personal property in the hands of the surviving partner, and when he is removed, then it is claimed in the probate court, would make posterity think ill of our understanding. It would be a dangerous travesty breeding confusion in unexpected ways. What says the precept? Via trita est tutissima.

Four judges of this court who at one or another time heard the instant case argued at our bar, have died. Agreement in division was impossible. The leading attorney for plaintiff died after an argument In Banc, with the hand of mortality even then plainly on him. Changes in the personnel of this bench also-caused regrettable delay. With the mention of such sorrowful incidents, we dismiss this opinion by pronouncing the judgment reached by a majority of the court, to-wit: ■ There is no substance in plaintiff’s claim of title. Let the judgment, nisi, be affirmed. It is so ordered.

Graves, Brown, Walker and Faris, JJ., concur; Woodson, J., dissents in a separate opinion in which Bond, J., concurs.