against Norman J. Hill and others. From Austin Marshall, and Stanhope Marshall, judgment for plaintiffs, defendants appeal. claim title to the aforesaid premises, as Modified and affirmed. plaintiff is informed and believes, by and The following is the opinion in Division through the aforesaid Sarah Marshall as the

BROWN, C. In February, 1905, the determine the estate, title, and interest in said fendant Norman N. Hill filed his petition in the St. Francois circuit court, returnable at the next May term thereof, in words and figures as follows:

that the judgment was obtained by false rep-set aside the decree entered in the cause resentations and upon false testimony. They aforesaid, to permit the plaintiffs herein to set up their own title substantially as follows:

On or about May 6, 1872, Hill entered the land in question at the United States land office; that by an error the certificate of entry described it as "the southeast quarter of the northeast quarter of section 1, township 36 north, range 4 east of the fifth principal meridian; that on August 30, 1872, a patent was issued to Hill, in which the same error was made; that on or about the 19th day of June, 1874, the said Hill sold the land so entered to plaintiff Leander J. Marshall, and executed and delivered to him a warranty deed, in which the land was erroneously described as the southeast quarter of the northeast quarter, instead of the southeast quarter of the southeast quarter of said section; that at the time of making this conveyance Hill delivered to Leander J. Marshall the original patent above mentioned, and afterwards on August 31, 1875, Leander J. Marshall for a valuable consideration conveyed the same land by the same erroneous description by warranty deed to Sarah S. Marshall, his mother, from whom plaintiffs deraign their title; that in all these transactions the southeast quarter of the southeast quarter was intended, but by mistake of all the parties it was described as the southeast quarter of the northeast quarter; that there is no such tract of land as the southeast quarter of the northeast quarter of said section; that in March, 1898, Hill, who was formerly of Richland county, Ohio, but was then living in Washington, D. C., applied for and obtained from the United States a patent granting to him the said southeast quarter of the southeast quarter of section 1, township 36, range 4, on the sole ground that he had entered the said land as above stated, and that by mistake the patent therefor had described it erroneously. The said last patent states upon its face that it was made to rectify said mistake. The petition also charges that Hill procured from Charles R. Marshall, one of the heirs of Sarah S. Marshall, a quitclaim deed to the lands in controversy, dated June 23, 1890, which plaintiffs believe was procured by fraud and misrepresentation, and could convey no greater interest than the undivided one-sixth interest owned by the grantor as one of the heirs of Sarah S. Marshall; that all the acts charged in the petition constituted a fraudulent scheme, having for its object the unlawful aquisition by Hill of the land in controversy. Charles R. Marshall is made a defendant in order that his interest may be adjudicated in the suit, and the Doe Run Lead Company to adjudicate their claim on account of an option to purchase the same land from Hill. The petition concludes as follows:

controvert by proof the allegations of the petition in said cause, and to support the allegations herein, and, upon testimony being heard, to declare the title which may have been conveyed by the United States by the patent of March 21, 1898, to Norman N. Hill, Jr., of southeast quarter of southeast quarter of section 1, township 36 north, range 4 east, to be vested in the plaintiffs as herein set forth. Plaintiffs' interest herein be decreed in said lands as herein set out; that is, to Winifred Marshall Dittmar two-fifths, Mrs. W. S. Marshall one-fifth. Adella M. Lasley one-fifth, Charles R. Marshall one-thirtieth, and to Norman N. Hill, Jr., or Charles R. Marshall, as the court may determine, five-thirtieths-and for all other and further equitable relief.”

Petition was duly sworn to.

Hill answers that Charles R. Marshall repaid him one-half the amount of money he had paid for the land, and that he supposed he had conveyed him one-half the land, but denies any knowledge of the deed to Leander J. Marshall, although he does not deny its execution. He also pleads adverse possession of the land for more than 10 years prior to the filing of the petition, and the 10-year statute of limitations.

The Lead Company set up its option to purchase from Hill, upon which it has paid $100, and expended in prospecting about $3,000 more, and asserts its willingness to it can get title. It also says it has no knowlpay the purchase price, $15,000, as soon as edge of the truth or falsity of the matter set up in the petition, and answer of Hill, except such as it pleads, and such records and facts as the law would charge it with knowledge of.

The answer of Charles R. Marshall set deed of June 23, 1890, was obtained by Hill up, among other things, that the quitclaim through fraud and misrepresentation, and asks that it be set aside. Hill filed a motion to strike out that part To this answer referring to, and asking relief on account of, the quitclaim deed, on the ground, among others, that "in this cause Norman N. Hill can set up no title other than that which he set up, or might have set up, in his original petition in this suit, the decree in which is herein sought to be vacated."

All the matters pleaded in the several answers were properly put in issue. The facts relating to the title to the land in controversy are as follows:

On May 6, 1872, Norman N. Hill applied at the local United States land office at Ironton, Mo., to enter the southeast quarter of the southeast quarter of section 1, township 36 north, range 4 east, in St. Francois county, Mo. His application is now on file in the local land office, and the plat book shows the entry (43,783) by its proper de

the tract books of the local office show the | I have owned it since that time." This apentry to cover the "S. E. 1⁄4 N. E. 1⁄4" of plication proceeded, with voluminous corresaid section, but the letter "S" appears writ-spondence. February 25, 1895, the Commisten in pencil over the "N," changing the de- sioner called upon Mr. Hill for an affidavit scription to the "S. E. 4 S. E. 4." The showing loss of the patent issued in case of acreage of the last described tract (41.02) C. E. 43,783, also conveyance to the United appears on the records throughout. The cer- States of the land described in that patent, tificate was erroneously made out as the and an abstract showing that such land was southeast quarter of the northeast quarter, free from all incumbrances, mortgages, aswhich was covered by the claim of one Jo- signments, and conveyances, to which Hill seph Girrard, Jr., which had been patented replied with an affidavit that the patent had to him June 6, 1836. Patent was issued to been lost and an abstract as follows: "AbHill by the same erroneous description Au-stract of title to S. E. 4 of S. E. 14 Sec. 1, gust 30, 1872. Hill conveyed the southeast Tp. 36 N., R. 4 E.: United States to Norquarter of the northeast quarter to Leander man N. Hill, entry dated May 6, 1872, S. E. J. Marshall June 19, 1874, and the deed 4 Sec. 1, Tp. 36 N., R. 4 E., Chas. R. Marwas, on May 18, 1875, duly recorded in St. shall to Norman N. Hill, quitclaim deed, datFrancois county. Leander J. Marshall con- ed June 23, 1890, filed July 2, 1890, Rec. 39, veyed the same land to Sarah S. Marshall, p. 465." his mother, August 31, 1875, by warranty Further proceedings on this application led deed, recorded January 4, 1876. The plain- to the disclosure of the record of the deed tiffs in this case are the heirs of this gran- to Leander J. Marshall. To this Mr. Hill tee, who have acquired her interest by inheritance and transfers between themselves, in the proportions stated in the prayer of the petition.

answered that the patent of June 6 1836, under private land grant survey No. 870 to Joseph Girrard, Jr., had divested the title from the United States, so that the patent of August 13, 1872, was void, from which it followed that the alleged transfer by him to Leander J. Marshall was void and that it was also void for the reason that it was obtained covertly and by fraud, and was intended to be and believed to be to Charles R. Marshall, who afterward conveyed to him. May 23, 1896, the department ordered notice to Leander J. Marshall, which was afterward given, and the matter proceeded until it was finally determined by the Commissioner of the General Land Office February 7, 1898, in a decision containing the following paragraph:

The Flat River lead district began to develop in the '80's; the first map of it having been made, as disclosed by the record, in 1882. In 1886 and 1887 lands in the vicinity of the tract in question began to sell, and in December, 1889, Mr. Hill, who was then occupying a position in the pension office in Washington, seems to have become aroused, and paid $38 and some cents in taxes which had been assessed against the tract in controversy from 1874 to 1889, inclusive, and has since paid the taxes from year to year, both before and since the emanation of the legal title from the United States, up to the time of the trial. In 1890 "It is true that there is no evidence of the defendant Doe Run Lead Company was service of notice on the Marshalls of the moworking on the Cofman and Hampton lands tion for review now pending, as is required adjoining, and Judge Taylor was working by rule of practice 76; but there are no his land east of it. June 23d of that year adverse parties before this office. The MarHill sent a lawyer named Sewall, of Mans- shalls all claim under Hill's entry, and the field, Ohio, who is now dead, to Charles R. conflict of interest between Hill and the Marshall, and procured a quitclaim deed to Marshalls this office has no jurisdiction to the same land described in the second pat-determine. They may have conflicting interent. This is the deed that is now being ests; but, if so, it will be for another triattacked by the defendants Marshall as bunal to decide. Nor did the Marshalls come fraudulent. He testifies that it was pro- into this case as adverse parties, under rule cured by misrepresentation, while Hill testi- 102. They have asked nothing, simply obfies that he obtained it because Charles R. jected to this office correcting its own error, Marshall had, in 1874, refunded half the when, so long as the title to the S. E. 4 cost of the land to him, and he had, or sup- S. E. 4 remains in the government, neither posed he had, for that consideration, convey- the Marshalls nor Hill can enforce whatever ed to him an undivided half of the tract de rights they may have." scribed in the patent.

Hill testified that he knew nothing of his December 17, 1894, Hill wrote to the Com- own conveyance to Leander J. Marshall in missioner of the General Land Office as fol- 1874, but that he supposed the only conveylows: "I am the owner of the S. E. 4 of ance he had executed had been an undivided the S. E. 4 of Sec. 1, Tp. 36, R. 4 E., in St. one-half to Charles R. Marshall, while Charles Francois county, Missouri. The original pat- R. Marshall testified, at the time of the date ent has been lost. I desire to know what of this deed, he knew Mr. Hill personally steps are necessary to secure a copy of said and well. He was a justice of the peace in patent. The land was entered by me in Richland county, Ohio, while Hill lived in

land county and part in Huron county; that a judgment that he be forever debarred and his brother, Leander J. Marshall, made a estopped from having or claiming any right trade with Hill to purchase the 40 acres in or title adverse to the petitioner. This seccontroversy, and gave the witness the pur- tion carefully guarded the interests of the dechase money to go over to Hill's home and fendant, and the bringing and effective prospay him for the land and have the deed execution of a suit appropriate to try the title ecuted, which he did. Mr. John Rank, who claimed by the plaintiff, against all such parhad gone to Plymouth with him in a buggy, ties as should be necessary to a determinaand is now dead, and Mr. Emery, a citizen tion of the questions involved, would be a of Plymouth, witnessed the deed, which was complete return to and compliance with the signed by Mr. Hill and his wife, both of order and judgment of the court. This was I whom went with him across the street into a fair and honest law, so far as it went. It Richland county and acknowledged it, know- answered all the purposes of those visibly ing well what it contained. Mr. Hill, be- and openly in the possession of lands who sides paying the taxes, exercised various desired to compel those threatening such other acts of ownership over the land in ques- possession to put their words into acts and tion; one of them being the sale of wood cut measure their rights with the possessor. It from the land in 1895, to the value of $170.40. gave no countenance to those being out of The petition and cross-petition of Charles possession to ripen claims which had never, R. Marshall were dismissed, and costs ad- by any visible act, been brought to the notice judged in favor of Hill and Lead Company, of the true owners, by judicial proceedings and after the overruling of motions for a hidden in the folds of obscure newspapers. new trial and in arrest of judgment, the Even as to the cases to which it applied, the case is here by appeal. courts were admonished to take care of the interest of those who might fail to receive such notice as would enable them to take care of themselves by withholding judgment until they should be of the opinion that there was no valid right, either at law or in equity, that required protection.

Opinion.

title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property." This section alone does not indicate an intention to repeal section 647, in so far as that section authorizes the trying of titles and interests in land by such proceedings and against such parties as should be necessary to a full

[1] I. The first question that confronts us relates to the effect of the judgment in the proceeding instituted by Mr. Hill in 1905, against the Marshall heirs, to quiet his title to the 40 acres of land in controversy. That In 1897 the following section, known in proceeding was founded upon the provisions the Revision of 1899 as 650, was enacted: of section 650, Revised Statutes 1899. The "Any person claiming any title, estate or inonly service upon any of the defendants was terest in real property, whether the same be by publication in a newspaper. None of them legal or equitable, certain or contingent, presappeared; so that if this petition is to be ent or in reversion, or remainder, whether given the effect of a petition for review, un-in possession or not, may institute an action der section 777 of the Revised Statutes of against any person or persons having or 1899, the judgment does not stand in the way claiming to have any title, estate or interest of the trial of the issues presented by it. in such property, whether in possession or No statute of our state has been subject-not, to ascertain and determine the estate, ed to more or greater vicissitudes, both legislative and judicial, than that which relates to the quieting of titles. At the time of the bringing of the Hill suit, sections 647 and 650 appeared together upon the statute book. The former had stood substantially the same for many years. It contains its own provisions for issuing and serving notice of proceedings under it, and provided, in substance, that any person in possession of real property claiming a freehold, or unexpired term of determination of the questions legitimately not less than 10 years, might file a petition in the circuit court, setting forth his estate, describing the premises, and averring that he was credibly informed and believed that the defendant made some claim adverse to such estate, and praying for summons to show cause why such person should not bring an action to try such title; and, if so, upon the return, duly executed, of the notice as provided, the defendant should make default, or, having appeared, should disobey the lawful order of the court to bring an action to try the title, or, having brought it, should fail to prosecute it with effect, and the court be of the opinion that such person had no

involved, nor remove a single safeguard with which it protected an unconscious defendant from the careless or fraudulent use of the drastic remedies it provided. Nor does the repealing section (3), providing that "all acts and parts of acts inconsistent herewith are hereby repealed" (Laws 1897, p. 74), indicate any such intention. It has, however, an "emergency clause" in the following words: "This act, being remedial in its character and taking the place of statutes which failed in their object, creates an emergency within the meaning of the Constitution; therefore this act shall take effect and be in force from and after its passage." Id. § 5.

tion from the common law or equity jurisprudence of the past. It is highly remedial, and must necessarily accommodate itself to the needs and practice of every proceeding that comes within its scope.

67 S. W. 250, 251, this court referring to | bination of words incumbered with a definisection 5, already quoted, assumed that "the lawmakers unquestionably believed that section 2092 was inconsistent with the act of 1897, and intended to repeal section 2092, and to provide a more complete and efficient and direct statutory method of determining and quieting land titles." In this connection the court said: "In Huff v. Land Co., 157 Mo. loc. cit. 69 [57 S. W. 715], it was pointed out that the act of 1897 was probably enacted in consequence of what was said in the Northcutt Case" (Northcutt v. Eager, 132 Mo. 265, 33 S. W. 1125) "about section 2092 not being broad enough to authorize the life tenant to make the remainderman, who claims under, and not adverse to, the life tenant, bring a suit to try his title." This case was followed in Hudson v. Wright, 204 Mo. 412, 423, 103 S. W. 8, and in Powell v. Crow, 204 Mo. 481, 486, 102 S. W. 1024. The act was further construed in an opinion by Valliant, P. J., by which it was held that in proceedings brought under it the court was confined to trying the issues and affording the remedies authorized by its terms. attention of the Legislature does not seem to have been again directed to any fault or imperfection in this law until by the act of June 1, 1909 (Laws 1909, p. 343), it not only enlarged the jurisdiction in such cases, but in express terms gave the parties the right to present to the court for adjudication such questions, germane to their respective titles, as they see fit. Whether this act was in any way influenced either by the opinion of this court in Powell v. Crow, supra, or in Richard v. Coal & Mining Co., 221 Mo. 149, 173, 119 S. W. 953, while of interest as a matter of curiosity, has no bearing upon this case, which had already been tried.

The

[2] The question here is whether the petition of these plaintiffs should be considered from the standpoint of a petition for review under sections 777, 780, Revised Statutes 1899. These sections require (1) that it should state the existence of the facts set forth in section 777; (2) that the petition of plaintiff, upon which the judgment complained of was obtained, is untrue in some material matter; or that the defendant has, and then had, a good defense thereto, setting such defense forth, or both. That it sets out all these matters with the utmost detail, and closes with the prayer for relief prescribed by the statute, namely, the setting aside of the judgment, cannot be denied. These sections require it to be verified, and it is verified. True, it makes an additional party; but this is necessary to a complete defense. Charles R. Marshall is transferred to the other side; but this also was probably necessary to meet the exingencies of the case. The statute does not seek to control the arrangement of the parties. It names the proceeding a "petition for review," a name

The act under which the suit which it is sought to reopen was brought is equally silent upon this matter of pleading. It only requires that "the institution, prosecution, trial and determination of suits under the preceding section shall conform in all respects to the provisions of the 'Code of Civil Procedure' now existing and be in force in this state concerning actions affecting real estate." R. S. 1899, § 657. Under this we have held that, although it only permits the person desiring to take advantage of its provisions to "institute an action," it may be used as a defense as well. Summet v. Realty & Brokerage Co., 208 Mo. 501, 506, 514, 106 S. W. 614; Lambert v. Railroad, 212 Mo. 692, 706, 111 S. W. 550. The remedy is distinctly given, and the Code affords the means to make it applicable in the particular case. So in this case the plaintiffs have in the form of a "petition," as the statute requires, presented a complete defense to the absolute title set up in the petition of Mr. Hill to quiet his title; they have made the parties necessary to the trial of the contest to which they have been invited; they have given the notice required by section 781 of the Revised Statutes of 1899, and have tried the issue so presented. Even if section 780 contemplates that all these things should be repeated in an answer, this petition has been treated as an answer for all the purposes of the proceeding. The arrangement of the parties plaintiff and defendant is of the same inconsequence in this case as in the Summet and Lambert Cases, supra. If, under the law and evidence, the plaintiffs have made out their title, they have the right to have the judgment decreeing Mr. Hill's title to be good and valid as against them set aside, and to have such relief as they are entitled, in law or equity, to have under their petition and evidence.

[3] II. The title of Mr. Hill depends upon a patent issued directly to him March 21, 1898, which contains the following statement: "This patent is issued in lieu of one dated August 30, 1872, in which the description of the land was erroneous, the record of which has been canceled." It is not contended that there was any other consideration for its issuance than the money that was paid upon the entry made in 1872, for which the patent was issued purporting to grant the southeast quarter of the northeast quarter of the same section. All the rights that he acquired by virtue of the payment of this money, and of the patent last mentioned, were transferred by him to Leander J. Marshall by the warranty deed dated June 19,