Matthews v. Karnes

Full title: CHARLES D. MATTHEWS, JR., v. JOHN M. KARNES, Appellant

Court: Supreme Court of Missouri, Division One

Date published: Jul 30, 1928

320 Mo. 962 (Mo. 1928)

9 S.W.2d 623

Opinion

July 30, 1928.

1. PATENT: To Deceased Patentee: Equitable Title. A patent issued by the county to a deceased patentee, who in his lifetime had paid the county for the lands and had applied for a patent, invested the equitable title in his heirs.

2. CERTIFICATE OF ENTRY: Notice. The Register of Swamp Lands sold by the county was required by statute (Laws 1854, p. 155) to make certificates of entry in triplicate and file one in his office, and a copy of such certificate, duly certified by the clerk of the county court in whose custody the certificate now is, is admissible in evidence for the purpose of showing notice to all the world of matters in it appearing.

3. PATENT: Payment: Prima-Facie Evidence. Under the Swamp Land Act (Sec. 3, Laws 1857, p. 271) a county patent is prima-facie evidence of title, and a recital therein that the patentee had "made payment in full as provided by law," although apparently based on a like recital contained in the certificate of the Register of Swamp Lands, is entitled to the presumption that the county court complied with the laws and satisfied themselves that the purchase price had been fully paid.

4. ____: Registration in Recorder's Office: Notice: Innocent Purchaser. The triplicate original certificate of entry, showing entry of the land by the patentee, kept on file in the office of the Register of Swamp Lands, and the recording of the patent in the office of the County Clerk on the date of its issue, were sufficient notice that the land had been patented, and made it unnecessary to record the patent in the office of the Recorder of Deeds, and a claimant under a later patent for the same lands was not an innocent purchaser without notice.

5. ASSIGNMENTS OF ERROR: Indefinite. Assignments that "the judgment is for the wrong party" and that "the judgment is against the evidence, the weight of the evidence and the law under the evidence" are indefinite, and standing alone preserve no specific matters for review.

6. QUIETING TITLE: Possessory Action: Limitations. Under Section 1970, Revised Statutes 1919, since its amendment in 1909. Laws 1909, page 343, an action to ascertain and determine title to land is a possessory action, if the right to possession is asked for in the pleadings; and the right of ownership by adverse possession may be determined in such an action as in an action of ejectment.

7. ____: ____: ____: Adverse Possession: Amended Petition: Commencement of Suit. The ten-year statute of limitations is not available to a defendant whose adverse possession began less than ten years before the possessory action was begun, but its commencement within the ten years suspends the running of the statute; and if the action is tried on an amended petition, in all respects the same as the original petition except that an additional defendant is made a party, the date of the filing of the original petition is the date of the commencement of the suit; and if such additional defendant acquired title through the original defendants after the suit was filed, the date on which the original petition was filed is to be taken as the date of the commencement of the suit against him; and an action to ascertain and determine title, in which the original and amended petitions specifically ask that plaintiff "be adjudged entitled to the possession of said property and that defendant be required to surrender said possession to him" is a possessory action.

8. ____: ____: Decree for Possession: Same Count. The plain legislative intent by the amendment of 1909 to present Section 1970, Revised Statutes 1919, was to make the statute sufficiently comprehensive to authorize a decree determining the right to possession of the land in an action to ascertain and determine the title, if such is asked for in the pleadings of either party, whether in the one count or in a separate count.

Corpus Juris-Cyc. Reference: Actions, 1 C.J., Section 413, p. 1159, n. 20. Appeal and Error, 3 C.J., Section 1534, p. 1387, n. 60. Public Lands, 32 Cyc., p. 1032, n. 41; p. 1033, n. 46; p. 1044, n. 55. Quieting Title, 32 Cyc., p. 1311, n. 33; p. 1356, n. 70.

Appeal from Butler Circuit Court. — Hon. Charles L. Fergusor Judge.

AFFIRMED.

John T. McKay for appellant.

(1) The court erred in sustaining a demurrer to the evidence at the close of all the evidence by the plaintiff, and in directing the jury to return a verdict against the defendant on the statute of limitations. Sec. 1305, R.S. 1919. (a) Plaintiff commenced this action by the filing of a petition to determine title on September 25, 1920. Defendant's amended answer, which was in the nature of an affirmative defense under Section 1973 to perfect title by limitation, was filed March 4, 1925, showing a period of more than fourteen years had passed since defendant became possessed of said land under claim of ownership and continuous possession from the time he became possessed until the filing of the answer, and was still in possession at the time of the trial. The record also discloses that plaintiff has never been in the possession of said real estate: that therefore he was barred under the ten-year statute of limitations and defendant was entitled to a decree, decrecing title in him under Sec. 1973. R.S. 1919. (b) The pendency of an action to determine title is no bar under the statute of limitations, for the reason it is not a possessory action, and its ultimate results will not disturb the possession. Even ejectment, which is a possessory action, does not toll the statute until a final judgment is rendered and then only from the date of the judgment. Sanford v. Herron, 161 Mo. 176; Rogers v. Johnson, 259 Mo. 173; Armor v. Frey. 253 Mo. 447: Powell v. Powell, 267 Mo. 117; Real Estate Co. v. Lindell, 133 Mo. 38; Peper v. Union Tr. Co., 281 Mo. 563. (c) A verdict should be directed for the plaintiff only when defendant's evidence viewed in the most favorable light without regard to plaintiff's evidence is insufficient to sustain a verdict for defendant. Dyer v. Cowden, 168 Mo. App. 649; Johnson v. Gracey, 230 Mo. 380: Jackson v. Hardin. 83 Mo. 186. (d) On demurrer to the evidence, or the direction of a verdict by a peremptory instruction directing the jury to return a verdict for the plaintiff on the statute of limitations, the court must indulge every inference of fact in favor of the party offering the evidence which a jury might indulge with any degree of propriety. Wilson v. Board of Education. 63 Mo. 137; Heine v. Railroad, 144 Mo. App. 447; Buckley v. Kansas City, 95 Mo. App. 188: Ammon v. Cole Coke Co., 156 Mo. 232. (e) This action being a law case and evidence offered which if true would establish any one of the good defenses pleaded in the answer, the court should not have given peremptory instruction to find for the plaintiff, but should have submitted the issues to the jury. Johnson v. Gracey, 230 Mo. 394; Jenks v. Glenn, 86 Mo. App. 329; Dumbar v. Fiefield, 85 Mo. App. 484: Hohn v. Bradley, 92 Mo. App. 399. (f) Adverse possession not only bars recovery but vests perfect title in the adverse holder. Franklin v. Cunningham, 187 Mo. 184; Johnson v. Calvert, 260 Mo. 456; Curtain v. Bull. 168 Mo. 622; Sconnell v. Am. S.F. Co., 161 Mo. 606; King v. Theis, 272 Mo. 422; Real Estate Co. v. Megaree, 280 Mo. 41. (2) The court erred in refusing to submit the question as to whether William Prnett, the grantee in the patent offered in evidence under which plaintiff claims title, was living or dead on the 20th day of August, 1867, being the date on which said patent was issued by the court. The defendant offered testimony tending to show that the patent on which plaintiff relies for title, through mesne conveyances, was issued to Pruett, August 20, 1867, and that Pruett died between the years 1862 and 1863; that he was dead some four or five years prior to the date the county court issued the patent in his name, and for that reason the patent is void and passed no title whatever. This evidence was competent and material but was ruled out by the court and not permitted to go to the jury. Collins v. Brannie, 1 Mo. 540; Thomas v. Wyatt, 25 Mo. 24; Norflect v. Russell, 65 Mo. 178; McDonald Heirs v. Smalley, 6 Pet. 332; Golloway v. Finley, 12 Pet. 297; Galt v. Galloway. 4 Pet. 332; Byrd v. McGrew, 255 F. 759; Norfleet v. Russell, 64 Mo. 176; Bartlett v. Brown, 121 Mo. 335; Martin v. Kitchen, 195 Mo. 477; Carter v. Macy, 239 Mo. 518. (3) The court erred in admitting in evidence the certified copy of a certificate issued by the Register of Dunklin County to William Pruet, dated December 27, 1860, and upon which said certificate the patent herein was based, for the reason that said certificate of entry is no evidence of title under the law governing the sale of swamp land donated by the Government to the State and by the State to the county, and unless accompanied by receiver's receipt showing payment no title can pass on the same. (a) The Register's certificate, being Certificate No. 329, offered in evidence on the part of plaintiff, should have been excluded, as it is no evidence of title in this State. Nall v. Conover, 223 Mo. 490; Phillips v. Trust Co., 214 Mo. 669; Whitman v. Giesing, 224 Mo. 600; Bishop v. Blocker, 235 Mo. 613. (b) The County Register's Books, in which is entered certificates of entry of swamp land, are no evidence of title are not records required by law to be kept, but simply private books of the parties who made them, and therefore a certified copy of the original record from the Register's books would not be competent. Authorities last cited above. (4) The court erred in rejecting evidence tending to show that the defendant is an innocent purchaser for value without notice as against the plaintiff. Secs. 2809, 3810, R.S. 1919. (a) Each of the above sections have been carried through all the revisions of the statutes dating back to 1855, without any material changes. Defendant had no notice either actual or constructive of the sale by Dunklin County to William Pruett in 1867, if there was such sale, as said patent purporting to have been issued by Dunklin County dated August 20, 1867, was never recorded in the Recorder's office of Dunklin County, and as to defendant the Pruett patent was inoperative to convey any title to plaintiff. Wilcox v. Phillips, 199 Mo. 288; Dclassus v. Winn, 174 Mo. 636; Morrison v. Juden, 143 Mo. 282; Elliott v. Buffington, 149 Mo. 663; Hickman v. Green, 123 Mo. 165; Byrd v. McGrew, 255 F. 759. (b) Defendant was bound to take notice of only such deeds as appeared of record, and in this instance they showed the title to be vested in Tennie C. Langdon and from her to defendant. Greer v. Lbr. Mining Co., 134 Mo. 85; Railroad v. View, 156 Mo. 608; Becker v. Strocher, 167 Mo. 306. (e) A purchase is only charged with notice of recitals of deeds lying within the chain of title through which he claims. The record of a deed lying outside the chain of title is no notice to him. Tydings v. Pitcher, 82 Mo. 379; Mason v. Black, 87 Mo. 329; Gross v. Watts, 206 Mo. 397. (d) Within the meaning of the Missouri Registry Act, a patent is not different from any muniment of title, and like a deed should he filed and recorded, and if by failure to record the rights of an innocent party accrues such rights must prevail, just as in cases where there is a failure to file a deed. Wilcox v. Phillips, 199 Mo. 289; Vance v. Corrigen, 78 Mo. 94; Allen v. Ray, 96 Mo. 542; Payne v. Lot, 90 Mo. 676; St. Joseph v. Forsee, 110 Mo. App. 127. (e) There was no law requiring the keeping of a Register's Book, at the time the Pruett patent was issued, nor at the time the register's receipt was recorded therein if received, hence it imparted no notice to E.V. McGrew, a subsequent purchaser, under the Sugg patent. Russ v. Simms, 261 Mo. 27; Nall v. Conover, 223 Mo. 447. (5) The court erred in refusing defendant's declarations of law numbered 1, 2, 3 and 4. Each of these declarations of law were based upon the various issues raised by the pleadings and should have been given, and more especially instruction number one, based on the statute of limitations, and it was error of the court to refuse either of them. All authorities heretofore cited. (6) The court erred in admitting in evidence certificate number 60, bearing date August 20, 1867, purporting to be a patent issued by the county court on that date to William Pruett for the lands in controversy, because said patent shows on its face that it is based upon the certificate of the Register of Swamp Lands which is no evidence of payment or title, and the patent is void on its face. Nall v. Conover, 223 Mo. 490; Phillips v. Trust Co., 214 Mo. 669; Whitman v. Geising, 224 Mo. 600; Bishop v. Blocker, 235 Mo. 613; Russ v. Simms, 261 Mo. 27. The statement contained in the patent that "William Pruett has deposited in the County Clerk's office of Dunklin County, Missouri, a certificate of register of swamp lands for said county, whereby it appears that full payment has been made to said county by said William Pruett" does not prove payment was made, and is no more evidence of payment than the certified copy of the Register's receipt offered by the plaintiff and is no evidence of title. Nall v. Conover, 223 Mo. 490: Phillips v. Trust Co., 214 Mo. 669. (7) The judgment is for the wrong party. In suits to determine title the issues may be submitted to a jury. Lee v. Conran, 213 Mo. 404; Hauser v. Murray, 256 Mo. 84; Toler v. Edwards, 249 Mo. 159. (8) The judgment is against the evidence, the weight of the evidence and the law under the evidence. (9) The court erred in refusing competent, relevant and material evidence offered by the defendant. (10) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by the plaintiff. (11) In a suit to quiet title under the Act of 1897 the court cannot render judgment for plaintiff for the possession of the land. Belford v. Sykes, 168 Mo. 8: Kochler v. Rowland, 275 Mo. 588. Bailey Bailey and Oliver Oliver for respondent.

(1) The paper title to the land in controversy is the same as the paper title to the land in controversy and described in the patents, deeds, and records, and has been finally adjudicated by this court, in three well-considered opinions recently handed down. Matthews v. Greer, 260 S.W. 53, 297 S.W. 366; Matthews v. Austin, 317 Mo. 1021. (2) This action can be maintained without regard to the nature of the estate or interest, whether legal or equitable or both, held by the plaintiff. Sec. 1970, R.S. 1919; Utter v. Sidman, 170 Mo. 284; Talbert v. Grist, 198 Mo. App. 499. (3) Peremptory instruction was properly given as to adverse possession. The undisputed testimony of appellant's witnesses showed that the adverse possession commenced in 1911. No contradicting evidence and only one conclusion could be drawn from the evidence. The original petition filed September 25, 1920, asked for the possession of the land in controversy and the filing of this petition stopped the statute of limitations as of that date. 38 Cyc. 1667-1669; Orcutt v. Cen. Bldg. Co., 214 Mo. 35; Dec v. Nachbar, 207 Mo. 698; Cahill v. Railroad, 205 Mo. 407. (4) To defeat paper title adverse possession must be actual, open, hostile, exclusive and continuous under claim of ownership for a period of ten years before suit is filed for possession. Stone v. Perkins, 217 Mo. 586; Hendricks v. Musgrove, 183 Mo. 300; Myers v. Schuchmann, 182 Mo. 159. (5) The statute under which this suit is brought is remedial and beneficial and should be liberally construed. Ball v. Woolfolk, 173 Mo. 278. (6) The prayer for possession under this statute granting complete relief puts the question of possession of the land in issue and stops the statute of limitations at the time of filing suit, which is true in an ejectment suit. The contention of respondent here is that this prayer for possession has the same effect on the statute of limitations as the ancient form of ejectment. Dunn v. Miller, 27 Mo. 260; Rogers v. Johnson, 259 Mo. 177; Snell v. Harrison, 131 Mo. 495; Swearengin v. Swearengin. 202 S.W. 556.

ATWOOD, P.J.

This is a proceeding to determine interest and quiet title to sixty acres of land in Dunklin County. Missouri, under Section 1970, Revised Statutes 1919. From an adverse judgment defendant appealed.

The original petition was filed in the Circuit Court of Dunklin County, September 25, 1920. Plaintiff went to trial on his amended petition which was the same as the original petition, except that it included John M. Karnes as an additional party defendant, who entered his appearance by joining the other defendants in the filing of an amended answer. Plaintiff's petition contained the usual allegations in proceedings of this kind and asked the court to try, ascertain and determine the rights, title, interest and estate of plaintiff and defendants, respectively, in and to said land: to preclude, bar, enjoin and estop defendants from thereafter setting up any right, title, claim or interest therein: to adjudge plaintiff entitled to the possession of said land, and to require defendants to surrender to him possession thereof. Defendants, in their amended answer, allege their ownership of said land, and deny each and every allegation in said amended petition except that they claim some right, title and interest in said land. The answer further pleads that they are innocent purchasers for value and without notice: that the law of this case has been determined by a decision rendered in the United States Circuit Court of Appeals reported in 255 Federal Reporter at page 759: and the ten-year statute of limitations. Section 1305. Revised Statutes 1919, is specifically pleaded as a defense. Plaintiff filed a reply in the nature of a general denial, and further setting up the invalidity of defendants' alleged source of title and reciting some of the history of the case in the Federal court.

At the close of all the evidence, plaintiff having dismissed as to all defendants except John M. Karnes, by direction of the court, the jury returned a verdict finding "the issues for the plaintiff on the question of adverse possession." Thereupon the jury was discharged from further service, and the court sitting as a jury further found from the evidence "that on the 20th day of August, 1867, the County Court of Dunklin County. Missouri, upon the finding that William Pruett had made full payment for the land described in the petition, issued a patent covering said land in the name of said William Pruett, and that said patent was issued under the provisions of the Act of 1857 relating to the disposal of swamp lands; and that said patent conveyed title to the said William Pruett and his heirs and that title of plaintiff herein is deraigned from said patent, and that the title to the lands described in plaintiff's petition, to-wit: "The south half of the southwest quarter of the northwest quarter and the southeast quarter of the northwest quarter all in Section Thirty-two (32). Township Seventeen (17), North, of Range Eight (8) East, in Dunklin County, Missouri, is vested in the plaintiff: and that plaintiff is the sole, legal and equitable owner and entitled to the possession of the above-described land, and that defendant has no right, title or interest in and to said land or any part or parcel thereof." Thereupon the court ordered, adjudged and decreed that "the defendant has no right, title or interest in or to said land and that the defendant be and he is hereby forever barred from asserting any right, title, claim or interest in and to said land or any part or parcel thereof, and that the plaintiff have and recover of and from the defendant the possession of the above-described land. together with the costs of this suit, and that writ of restitution and execution issue therefor."

Plaintiff put in evidence certain acts of the General Assembly of Missouri relating to swamp lands and disposition of the same in the County of Dunklin and certain other counties of the State; also, a certified copy of an order by the County Court of Dunklin County made October 2, 1883, which is not set out in appellant's abstract of the record; also, a certified copy of an entry in a Patent Register referred to in said order of the Dunklin County Court, which copy, including attached certificate of the County Clerk of Dunklin County, is as follows:

"No. 239.

"Register office at Kennett. Dunklin County, State of Missouri, December 27th, 1860, it is hereby certified that in pursuance of law. William Pruett of Dunklin County. State of Missouri, on this day purchased of the Register of this office the Lot or N½ of SW¼ and W½ and SE¼ of NW¼ of Section No. 32, in Township No. 17 N. of Range 8 E., containing 200 acres, at the rate of one dollar per acre, amounting to $200 for which the said Wm. R. Pruett has made payment in full as required by law.

"Now therefore, be it known that on presentation of this certificate to the County Court of Dunklin County. State of Missouri, the said William Pruett shall be entitled to receive a patent for the Lot above described.

"W.M. HARKEY, Register.

"State of Missouri, County of Dunklin. — ss.

"1. Chas. S. Shultz, Clerk of the County Court in and for said County, hereby certify that the above is a true and correct copy of the certificate of Purchase, as same appears in Patent Register No. 2, Page 20, in my office.

"Witness my hand as Clerk, and the seal of said Court. Done at office in Kennett, Missouri, this the 10th day of April, 1916. "(Seal)

"(Signed) CHAS. S. SHULTZ, Clerk."

Plaintiff also put in evidence the original patent from Dunklin County, Missouri, conveying the land here in dispute and other lands to William Pruett, dated August 20, 1867, and filed for record in the office of the County Clerk of Dunklin County on the same date, which patent among other things contains the following recital:

"Whereas, William Pruett, of Dunklin County, State of Missouri, has deposited in the Clerk's office of the County Court of Dunklin County, in the State of Missouri, a certificate of the Register of Swamp Lands, for said county, whereby it appears that full payment has been made to the said County of Dunklin, by the said William Pruett for the following described lands, to-wit:" (here follows description of lands including land here in dispute).

It was admitted by plaintiff and defendant that William Pruett died leaving G.W. Pruett, a son, and Martha Pruett, a daughter, who were the only surviving heirs of William Pruett at the time of his death. Plaintiff also introduced in evidence certified copies of conveyances by these heirs and their assigns through whom he claims title.

The foregoing proof of paper title, insofar as it is challenged in this proceeding, was before us in Matthews v. Greer, 260 S.W. 53. While all the points here raised were not urged in that case, it was there definitely held (l.c. 54) that even if Patent: William Pruett was dead at the time the patent was Equitable issued, nevertheless, the equitable title to the land Title. therein described vested in his heirs. From this it follows that Point II of appellant's brief in the instant case, that it was error for the trial court to refuse to submit the question as to whether William Pruett was living or dead at the time the patent was issued, must be overruled. For the same reason defendant's declaration of law numbered 3 covering the same point was properly refused.

In Point III appellant also states that it was error for the trial court to admit in evidence the certified copy of the certificate issued by the Register of Dunklin County to William Pruett, dated December 27, 1860, for the reason that said certificate was no evidence of title under the law Certificate governing the sale of swamp lands. While we have of Entry: held that a certificate of entry standing alone is Notice. no evidence of title (Nall v. Conover, 223 Mo. l.c. 491: Whitman v. Giesing. 224 Mo. l.c. 615), yet the register of lands was required to make certificates of entry in triplicate and file one in his office. [Section 4 of act passed at first session of Eighteenth General Assembly, Laws 1854, p. 155.] These files were public records required by law to be kept and were notice to the world of matters appearing therein. [Mosher v. Bacon, 229 Mo. 338; Russ v. Sims, 261 Mo. l.c. 27.] Therefore, at least for the purpose of showing notice it was proper to admit a copy of this certificate duly certified by the County Clerk of Dunklin County in whose custody it then was, and this point is also ruled against appellant.

In Point VI appellant says that it was error for the court to admit in evidence Certificate No. 60 bearing date of August 20, 1867, and purporting to be a patent issued by the Dunklin County Court on that date to William Pruett for the land in Payment: controversy, "because said patent shows on its face Recital in that it is based upon the certificate of the Certificate Register of Swamp Lands which is no evidence of and Patent. payment or title and the patent is void on its face." Section 1 of the Swamp Land Act approved February 27, 1857 (Laws 1856, p. 271), provides that whenever the county courts of Dunklin and other named counties "shall be satisfied that full payment has been made according to the terms of sale for any of the lands sold as swamp lands, under any of the acts of the General Assembly of this State, authorizing the same, they shall cause to be issued to the purchaser, his heirs or assigns, a patent for the same." As we said in Matthews v. Greer (l.c. 53). supra, this act and amendatory acts "give all authority to the county court and required it to determine the question of payment before issuing a patent thereunder." Even though a certificate of entry standing alone is not evidence of title, and even if a recital of full payment made by the purchaser would with more propriety appear in the receiver's certificate than in the register's certificate, yet upon the record in this case we cannot say that the recital in the register's certificate that the purchaser of the land, William Pruett, had "made payment in full as required by law," was untrue. However, the members of the county court at the time this patent was issued were in position to know. In the absence of proof to the contrary the presumption of right action attends their conduct, and the patent having been issued we will assume that they complied with what the law required of them and satisfied themselves that the purchase price had been fully paid. The recital in the patent to which appellant objects certainly does not show that full payment of the purchase price was not made. Under the law applicable thereto (Sec. 3, Act 1857, supra) the patent is prima-facie evidence of title to the land therein described and was properly admitted in evidence.

In Point IV appellant says that "the court erred in rejecting evidence tending to show that the defendant herein is an innocent purchaser for value without notice as against the Notice of plaintiff." Just what this evidence was does not Patent. appear from appellant's assignment of errors or his brief, but in his printed argument it is said that "the proof offered tends to show that the Pruett patent had never been recorded in the Recorder's Office of Dunklin County; that plaintiff herein had said patent in his possession and knew what the patent contained; that plaintiff knew the land records of Dunklin County had been destroyed by fire subsequent to the date of the issuing of the Pruett patent; knew that Tennic C. Langdon, defendant's grantor herein, claimed said land under the Sugg patent and was paying taxes on the same; knew that said land was wild and uncultivated and not in the actual possession of anyone, and with knowledge of all these facts he never placed his Pruett patent on record. Defendant offered testimony further tending to show that he had the land abstracted, had his title passed upon by an attorney before he purchased the land; that his attorney advised him so far as the record showed, no patent had ever been issued to Pruett: that he had no knowledge that any patent had ever been issued to William Pruett, either actual or constructive, until after he had purchased said land and had expended large sums of money in improving the same." Defendant claimed title under what was known as the "Sugg" patent, issued by Dunklin County under date of June 2, 1870. Plaintiff's proof not only showed that the triplicate original certificate of entry showing entry of the land in question by William Pruett on December 27, 1860, was on file in the office of the Register of Swamp Lands, but it further showed that the "Pruett" patent under which he claimed was placed of record in the office of the County Clerk of Dunklin County on August 20, 1867, the date it was issued. This was proof of sufficient notice and it was not necessary to show that this first patent was recorded in the office of the Recorder of Deeds prior to the issuance of the second patent in 1870. [Mosher v. Bacon, 229 Mo. l.c. 357.] The case of Wilcox v. Phillips, 199 Mo. 289, and other cases cited by appellant arose upon tax suits and are not in point. The proffered evidence was properly rejected. For the same reason the trial court properly refused defendants' "innocent purchaser" declarations of law numbered 1 and 4.

Appellant's points VII and VIII are that "the judgment is for the wrong party" and that "the judgment is against the evidence, the weight of the evidence and the law under the Indefinite evidence." Such assignments of error are indefinite Assignments. and standing alone have been held objectionable. [Bond v. Williams. 279 Mo. l.c. 227; Fitzroy v. People's Bank of Cardwell, 234 S.W. (St. L. Ct. of App.) 865.] No specific matters are brought to our attention under these points and they are ruled against appellants.

Points IX and X charge error in the rejection and admission of evidence. The rejected evidence went to defendant's contention that he was an innocent purchaser without notice, Admission and we have already held that such evidence was and Rejection properly rejected. On the assignment that evidence of Evidence. was erroneously admitted, appellant makes no specification other than the matters upon which we have already ruled.

The remaining specifications of error appear in the first, fifth and last of the eleven points presented by appellant, and chiefly relate to the special defense of the ten-year statute of limitations. Appellant's first point is that the Limitations. court erred in sustaining a demurrer to the evidence at the close of all the evidence and directing the jury to return a verdict against the defendant on the statute of limitations. Defendant's proof was that his adverse possession commenced when his predecessor in title, E.V. McGrew, took possession of the land in controversy shortly after receiving his deed which bore date of December 7, 1910. This suit was commenced in the Circuit Court of Dunklin County on September 25, 1920, less than ten years after defendant's adverse possession began. It was tried on an amended petition which was the same as the original petition except John M. Karnes was made an additional party defendant. The date of the filing of the original petition was, therefore, the date of the commencement of the suit. [Bricken v. Cross, 163 Mo. l.c. 453.] Defendant Karnes acquired title through the original defendants after suit was filed, and the date on which the original petition was filed is to be taken as the date of the commencement of the suit against him. [37 C.J. 1067, n. 77.] Did the commencement of this suit suspend the running of the statute of limitations?

We have frequently held that the commencement of a possessory action such as ejectment suspends the running of statutes of limitations. [Dunn v. Miller, 75 Mo. l.c. 272; Snell v. Harrison, 131 Mo. l.c. 503; Estes v. Nell, 140 Mo. l.c. 651; Swearengin v. Swearengin, 202 S.W. (Mo. Sup.) l.c. 557.] The original petition as well as the amended petition filed in this cause alleged ownership of the land in plaintiff, sought complete relief, and specifically asked that he "be adjudged entitled to the possession of said property and that the defendant be required to surrender said possession to him and for all proper and necessary writs, orders and process necessary to execute the decree and judgment of the court." Respondent contends that the commencement of this suit had the same effect on the ten-year statute of limitations as an action in ejectment would have had. Appellant insists that the proceeding instituted by plaintiff was in no sense a possessory action, that possession could not be decreed therein, and that its commencement did not interrupt the statute of limitations.

In Bedford v. Sykes, 168 Mo. 8 (decided in 1902), we held that, in a suit to quiet title under the Act of 1897, the court could not render judgment for plaintiff for the possession of the land. This statute was thereafter amended (Laws 1909, p. 343) by subjoining the following:

"And upon the trial of such cause, if same be asked for in the pleadings of either party, the court may hear and finally determine any and all rights, claims, interests, liens and demands whatsoever of the parties, or of any one of them, concerning or affecting said real property, and may award full and complete relief, whether legal or equitable, to the several parties, and to each of them, as fully and with the same force and effect as the court might or could in any other or different action brought by the parties, or any one of them, to enforce any such right, claim, interest, lien or demand, and the judgment or decree of the court when so rendered shall be as effectual between the parties thereto as if rendered in any other, different or separate action prosecuted therefor."

If the language of the foregoing amendment is not sufficiently broad to authorize the determination of the right of possession of the land in question, when such is "asked for in the pleadings of either party," we are at a loss to know how it could be made so. In Ball v. Woolfolk, 175 Mo. l.c. 285, speaking of the Act of 1897, we said: "The statute is highly remedial and beneficial in its purposes, and supplements the old equitable remedy to remove a cloud from title and is much more comprehensive in its scope." When, in Bedford v. Sykes, supra, we held that the right of possession could not be determined in a proceeding under this statute, it evidently occurred to the legislative mind that the scope of the statute should be comprehensively extended, and the above amendment resulted. We are aware that in Koehler v. Rowland, 275 Mo. l.c. 588, Division Number Two of this court held that this amendment has not "enlarged the scope of the statute so as either to repeal the statutes relating to ejectment or to provide for giving possession in an action brought under it." While this amendment does not evidence any intention to repeal statutes relating to "any other or different action" that might have been brought by the parties, it does plainly say that upon the trial of the cause, if asked for in the pleadings of either party, "the court may hear and finally determine any and all rights, claims, interests, liens and demands whatsoever of the parties, or of any one of them, concerning or affecting said real property, and may award full and complete relief, whether legal or equitable, to the several parties, and to each of them, as fully and with the same force and effect as the court might or could in any other or different action brought by the parties," etc. If this means, as in effect it is held in the Koehler case, supra, that such relief will not be granted unless asked for in the usual form of pleadings required in such actions, either in a separate count or if not timely objected to in the same count, then the comprehensive language used confers no new right and the amendment means nothing, for under our liberal code this right was already well recognized. [Mann v. Doerr, 222 Mo. l.c. 11.] The plain legislative intent was to make this statute sufficiently comprehensive to afford such relief, "if same be asked for in the pleadings of either party," even though, as in the instant case, the facts relating thereto be not pleaded in a separate count or with all the formality usually required in such "other or different action." This statute permits an action to quiet title to be prosecuted by one not in possession, and as the Supreme Court of Iowa said in Lees v. Wetmore, 58 Iowa, l.c. 172: "We know of no reason or principle of law which stands in the way of the plaintiff, in such a case, uniting a prayer to recover possession with the prayer that the cloud on his title be removed, as was done by the substituted petition in this case." [32 Cyc. 1356, n. 70.] Even though as a general rule possession of the land may not be delivered as a mere incident to a bill to quiet title, yet the rule may be varied by statute. [32 Cyc. 1381, n. 93; Landregan v. Peppin, 94 Cal. 465; People v. Center, 66 Cal. 551.] We conclude that the trial court had full power to determine the right of possession in this case, that the filing of the original petition herein interrupted the running of the ten-year statute of limitations, and that peremptory instruction was properly given. It follows that defendant's second declaration of law, mentioned in appellants' fifth point, to the effect that if the court found and believed from the evidence that defendant and those under whom he claimed held adverse possession of the land in question for ten years next before the filing of the answer containing the affirmative defense of the statute of limitations he should find for defendant, was properly refused. What we have said also disposes of appellant's final point that the trial court was without power to decree possession.

Having found no reversible error in the record presented it is ordered that the judgment be affirmed. All concur.