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plaintiffs appeal. Reversed, and judgment, pany, Kentucky militia, in the War of 1812. ordered for plaintiffs.
That company was in the military services See, also, 199 Mo. 288, 97 S. W. 886. of the United States in that war. Jones duly D. M. Wilson and J. W. Clapp, both of received a military land warrant entitling Milam, A. W. Mullins, of Linneus, and G. W. him to locate 120 acres of land as bounty Haverfield, of Kansas City, for appellants. lands for his services as such soldier. ThereN. A. Franklin, of Unionville, Jno. W. Bing- upon Jones transferred his warrant to Wilham and Calfee & Painter, all of Milam, and liam H. Brownlee. Thereupon Brownlee, in Campbell & Ellison, of Kirksville, for re- the proper local land office, located the warspondents.
rant upon the land in suit, and in turn re
ceived a due official certificate of such locaLAMM, C. J. Plaintiffs sued defendants tion, which he duly assigned to one James Phillips and Reed in the Sullivan circuit Montgomery. By virtue of such warrant, court in 1902 in straight ejectment for 120 such assignment of the warrant, such locaacres of land situate in that county, to wit, tion of the warrant upon the land in disthe s. 42 N. W. 44 and the N. E. 44 S. W. pute, such certificate of location, and such 44, section 3, township 63, range 18. Reed assignment of such certificate (and on due and Phillips held a warranty deed from showing made of all such facts), James BuCampbell and Campbell. The latter, on mo-chanan, on the 16th day of June, 1860, acting tion, were permitted to come in as codefend for the government of the United States, as ants because in privity with Phillips and President, duly issued a patent to that MontReed as warrantors of their title, and filed gomery for said lands, and said patent was answer, thereby making denials, but admit. at once duly recorded as required by United ting the possession of Reed and Phillips. States statute in volume 215, p. 286, in the Reed and Phillips answered admitting pos- office of the Recorder of the General Land session and making a general denial of other Office, at Washington, D. C. This patent was averments.
not recorded in the office of the recorder of Plaintiffs are the living (and descendants deeds of Sullivan county until 42 years passof deceased) sons and daughters of Abbie D. ed, to wit, on the 2d day of August, 1902. Wilcox, who (they claim) died seised of the At the time the presently mentioned tax land.
suit was brought the records of Sullivan Presently plaintiffs recovered, and defend-county showed as follows: (1) A tract book, ants appealed here. In 1906 that judgment duly certified by the proper local land office was reversed (199 Mo. 288, 97 S. W. 886), register, duly on file, showing the land enand the cause was remanded for a new trial, tered by W. H. Brownlee as entryman in with directions hereinafter noticed. When 1857; (2) The consolidated back tax book the case went down plaintiffs, without objec- showing in a column headed "Owner” that tion, filed an amended petition in two counts. W. H. Brownlee, James Montgomery, Abbie The first count was in ejectment in conven- D. Wilcox or “her heirs" were owners; (3) tional form, as was the original petition; and the deed records showing a chain of title the second count was a bill in equity to clear by duly recorded deeds beginning with James up their title. In the meantime (in 1906) Montgomery and ending with a deed to AbPhillips and Reed had reconveyed to their bie D. Wilcox. codefendants, Campbell and Campbell, by Plaintiffs claim under said patent and said quitclaiming the premises to them. (Note: mesne conveyance duly recorded. DefendThey had paid a small sum down and had ants claim under a tax suit in the Sullivan given a note and deed of trust to secure the circuit court (against said Brownlee, said balance of the purchase price, which note Montgomery and said Abbie D. Wilcox, she, was surrendered to them by Campbell and as said, being plaintiffs' ancestor), such suit Campbell, the latter repaying to Phillips and ripening into a judgment in April, 1900, folReed their outlays. We find no answer filed lowed by a special execution thereon, a levy, by Phillips and Reed to plaintiffs' amended a sale made in October, 1900, and a sheriff's petition.) The issues were apparently made deed to defendants Campbell and Campbell, up by Campbell and Campbell filing an an- purchasers. swer to the amended petition and plaintiffs There was no service in the tax suit on replying thereto. This answer admits pos- James Montgomery, patentee, but W. H. session in Campbell and Campbell, and they Brownlee, entryman, was personally served, assume the burden of the defense, Phillips and made no defense. As to Abbie D. Wilcox, and Reed apparently dropping out. The cause she was ostensibly served by an order of pubcame on for its new hearing in the Putnam lication, but, in fact, had died in 1884. Her circuit court on change of venue granted on husband, William, died in 1889. None of the Campbells' application. Presently on plaintiffs were parties to that suit. The desuch hearing the court found for defendants linquent taxes merged in the tax judgment on both counts, and from a judgment follow- were assessed and levied for the years 1895, ing in defendants' favor, plaintiffs in turn 1896, 1897, and 1898. The judgment, as said, appeal.
was rendered in 1900. Abbie D. Wilcox durBriefly in outline the case is this: Charles ing her life, subsequently William, her hus. Jones was a private in Capt. Alsberry's com- band, during his, and plaintiffs on the death
of both, paid the taxes to the proper tax of- ification, then the authorities cited in the ficers (presumably by correspondence) for the Mangold-Bacon Case abundantly point to our years 1882, 1883, 1884, 1885, 1886, 1887, 1888, duty and authority to make the modification, 1889, 1890, 1891, 1892, 1893, and 1894. ex debito justitiæ; for, as said in the Man
Questions raised, to be disposed of under-gold-Bacon Case: standingly, will require more particularity in "An appellate court is a court for the correcstatement of fact and pleadings; such par- tion of errors—its own as well as others. In ticularity will be supplied in connection with correcting the errors of lower courts we do not
proceed on the theory we make none of our a disposition of those questions in the course own. of the opinion.
 Nor, closer home, is there anything in So much for a general outline by way of the phrase employed by us in remanding this statement. We will consider the case under case when here before, to wit, “To be protwo heads, to wit: First, of a certain motion ceeded with therein in accordance with this on which defendants place emphasis; and, opinion,” which forecloses the right to amend, second, of the merits. In our opinion, the to raise new issues, and to have the case on judgment was for the wrong party and stands
a second appeal determined on a record preto fall; this because :
sented by such second appeal. In Sheppard I. Of Defendants' Motion to Dismiss the Ap- v. Wagner, 240 Mo. loc. cit. 442, 144 S. W. peal (and Herein of Res Adjudicata).
394, 145 S. W. 420 et seq., we held in judg
ment a motion for a rehearing in which the At practically the same time of filing briefs, point was made that the language in the defendants filed a motion to dismiss the ap- opinion handed down amounted to a foreclopeal on the ground of res adjudicata and
sure of all possible questions and to a direcbriefed the point. In their brief proper the tion to enter judgment, which language folsame question is raised. The point hinges lows, to wit: on the fact that the judgment appealed from
"Judgment reversed, and cause remanded to in the first appeal 'was reversed, and the be proceeded with according to the views in cause was remanded to the circuit court with this opinion expressed." the following directions: “To be proceeded Observe that language is of the same imwith therein in accordance with this opin- port as that now held in judgment. In overion." The contention is that the lower court ruling that motion Brother Graves, had no authority under that form of rever-speaking for us all, construed that language sal, accompanied with such directions, to per- against the views of movent, saying, inter mit an amended petition to be filed or to try alia: the case over again, but was restricted to
When we remanded the case for a entering a judgment for defendants. Hence, new trial, we had in view the fact that the when it entered such judgment, it was in con
answer might be made more specific.
one among several things which formity with the authority of our mandate prompted the remanding of the case. Our judgon the first appeal, and no second appeal lies. ment was not a remanding of the case with di
If the premises were correct, the conclusion rections to enter any specific judgment, nor to contended for might follow, but the premises the defendant, Ella Wagner, can show her right
proceed in any particular way.
If are not correct. In the first place, the gener- to this property through any other valid agreeal doctrines of this court on what questions ment and transaction, the case is still open for are open on a second appeal in the same case that purpose. have been so lately announced on a review In remanding the case, after reversing the of our cases in Mangold v. Bacon, 237 Mo. judgment, we might have foreclosed the right loc. cit. 512, 141 S. W. 650 et seq., as to need of amendment, we might have entered judg. no extended exposition. Prying minds may ment ourselves, or (what would be the same consult that case and the authorities there in effect) have ordered the lower court to ennoticed and canvassed. There is no pro- ter a specified one and end the litigation; nouncement there made standing as an insur. but we did neither the one thing or the othmountable obstacle in the road of considering er, and, under the doctrine of the Sheppardthe merits of this case on a second appeal. Wagner Case, the right to amend was open. So late is that case and so full is its discus- Shall we now tread back and make the new sion that we decline to restate its doctrines hearing on new issues and the new appeal or consider them anew.
mummery?  In the next place, in this case there are Furthermore (and as equally decisive), the important questions not determined in the point now up was not made below nor passed former appeal, and, observe, the pleadings upon by the trial court. Defendants' learned without objection were amended raising is-counsel made no motion below for judgment sues on which such questions depend. For in- because of our direction. Why not if they stance, for the first time do plaintiffs ask then thought as they think now? We think equitable relief on divers equitable grounds. they must be taken secundum regulam as
 Moreover, if by inadvertence of coun- not so understanding the direction at that sel (or our own) the former appeal broke on time, because they, without a finger of proa proposition which, when illuminated by test lifted, saw an amended petition filed; new discussion, new briefs, and fuller and then they filed a new answer; then, as a
cast an anchor to the windward by taking a stion statutes and a certain admitted fact, to change of venue on the theory the judge was wit, the nonrecording of a United States prejudiced. Was the judge so prejudiced he patent in Sullivan county issued over half a would not be likely to obey our directions if century before to James Montgomery, he was asked to? That would be an astound-through whom and his vendees and subvening case of prejudice. Attend to defendants' dees they hold title-a patent duly recorded affidavit for a change of venue. It recites by the government at the place appointed that “the case stands for trial at this term by United States statute. It will be of inof court", and that “petitioner has good rea- terest to examine the reasons why that apson to believe, and does believe, that defend- parently astonishing result is said to follow. ants in the above cause cannot have a fair (a) It is argued, in effect, that the records and impartial trial,” etc. It thus appears of Sullivan county at the time of the suit that defendants expected and wanted a showed William H. Brownlee, the entryman, “trial,” not a judgment as of course, as if to be the apparent record owner; that there per our direction, as defendants now contend. was personal service on him in the tax suit;
So the question is raised here on the heels hence the purchasers at the tax sale got a of the hearing for the first time; hence it good title. This argument, we submit, pronot only comes late as smacking of after- ceeds on an entire and fundamental misconthought, but is in the teeth of trial theories ception of law and of the facts of this record. and the rule of appellate practice in that re- It might be admitted that defendants acgard.
quired Brownlee's title; but does something At the hearing at our bar the motion to come out of nothing? When they got his tidismiss was taken with the case. The prem- tle did they get anything? Had he any title ises in mind, let it be overruled. With that at all? ruling there falls out of the case the same
But defendants' contention connects itself question in defendants' principal brief.
with our laws relating to taxation and the
bringing of tas suits for the purpose of coII. Of the Merits.
ercing the payment of contributions imposed  There are some subsidiary questions by government as a sovereign in order that we set aside for the present, to be recurred the various functions of the state might not to if deemed material. For present purposes perish, and the question shifts itself and we assume that Abbie D. Wilcox died seised comes to be this: Is there anything in those of the land, and that by descent cast the ti-laws or in our adjudications that passes the tle inured to her husband, her living child title of those true owners who had no day dren, and the descendants of those dead. in court to a tax purchaser because of the When the life estate of her husband fell in fact that a half century ago the patentee by his death, the entire true title and actual through whom those owners hold neglected ownership inured to plaintiffs on the as
to record his patent in the county? That sumption made. Now, they were not parties such question must be answered in the negato the tax suit, instituted, say, 15 years tive results, I think, from the following posafter their ancestor's death and one year tulates: after the death of Abbie's husband; hence
 (1) In the first place, it would seem they had no day in court in that case. Due
that to pass title or impart notice neither a process of law depends on service—i. e., patent from the United States nor a patent notice--and, absent notice, due process was from the state itself needs record in the counnot given them. As pointed out in Womach ty in which the land is situate. v. St. Joseph, 201 Mo. loc. cit. 482, 100 S. W.
"A patent from the United States for land 446, 10 L. R. A. (N. S.) 140:
need not be delivered or recorded. Title by pat'Due process of law' means law in the reg- ent from the United States is title by record; ular course of administration through the courts, and though it is usual to deliver a patent to the Jones v. Yore, 142 Mo. loc. cit. 44 (43 S. W. claimant, as in case of deeds, yet delivery of it 384). The term 'due process of law' is equiva- is not necessary. The acts of Congress prolent to the term 'the law of the land'-a term vide for the record of all patents for land in an as old as Magna Charta. And, as said by Web- office, and in books kept for that purpose. An ster in a brief sparkling forever as a jewel in officer called the 'recorder' is appointed to make the crown of the American bar in the Dart and to keep these records. He is required to remouth College Case (see 4 Wheat. loc. cit. 581 cord every patent before it is issued, and to [4 L. Ed. 629]): By the law of the land is most countersign the instrument to be delivered to clearly intended the general law; a law, which the grantee. This, then, is the final record of hears before it condemns; which proceeds upon the transaction—the legally prescribed act which inquiry, and renders judgment only after trial. completes what Blackstone calls 'title by record' The meaning is that every citizen shall hold --and when this is done the grantee is investhis life, liberty, property, and immunities un-ed with that title.
The statutes in der the protection of the general rules which regard to recording do not apply to conveyances govern society. Barber Asphalt Co. v. Ridge, 169 by a state. Such conveyances may be recorded, Mo. loc. cit. 384 [68 S. W. 1043). 'In judicial and generally are, but their effect as vesting proceedings,' says Andrews, J., in Bertholf v. title and affording potice is not dependent upon O'Reilly, 74 N. Y. 509 (30 Am. Rep. 323], 'due their being recorded.
2 Jones, Real process of law reguires notice, hearing, and Prop. & 1377, 1378; Mosher v. Bacon, 229 Mo. judgment.
loc. cit. 358, 129 S. 'W. 680 et seg. Defendants' proposition is, at bottom, that The statutes of the state of Missouri, recogplaintiffs lose their land because of our taxa- nizing the fact that patents emanate from
the general government and evidence acts of ! peculiar about tax sales and tax deeds takthat government as overlord, do not require, ing them out of the generally recognized as a condition precedent to vesting title or principles relating to notice of ownership in imparting notice, that such patents be re- another that it may not be amiss to reprocorded in the county in which the land is duce a part of what is there said: situate. It would be uncommonly revolution "If an unrecorded deed from the apparent recary and singular if they assumed such a hos- ord owner of land to a bona fide grantee be put tile and unconstitutional attitude. To the ent record owner, but before a sale under exe
of record after a judgment against such apparcontrary, our statutes are merely permissive cution issued on that judgment, the grantee in and use the phrase “may be recorded.” R. such deed will hold the land as against the purS. 1909, § 10,390. Conveyances that must be chaser at such sale; but it is not so if such
deed be recorded after the execution sale. See recorded are mentioned in another section. Davis v. Owenby, 14 Mo. 170 [55 Am. Dec. Id. § 10,381. Why should taxing officers and 103), and a long current of authority flowing tax purchasers not be charged with notice of from that leading case. United States grants by way of patents duly foregoing proposition has been applied where an
"Like reason makes like law. Hence the recorded, where the law under which, they attachment was levied on land standing in the are made requires a record? But, because name of the defendant in the attachment suit. of what follows, we need not pursue the sub- It has been held that if such defendant part ject or allow the case to ride off solely on cuting a deed, which such purchaser had failed
with his title to a bona fide purchaser by exesuch view, though that view might settle this to record before the levy of the attachment, but case if followed to its logical conclusion; which he records prior to a sale under the for, in that view of it, the record of Mont- attachment proceedings, he would hold the land gomery's patent in the proper office in Wash- Hannah v. Davis, 112 Mo. loc. cit. 607 (20 S.
against the purchaser at such sheriff's sale. ington, D. C., imparted notice as a matter of W. 686); Hope v. Blair, 105 Mo. loc. cit. 95 law.
[16 S. W. 595, 24 Am. St. Rep. 366).  (2) In the second place, it is a mistake it and substance of the
statutes of this state.
“The foregoing cases but promulgate the spirto suppose that our taxing laws proceed on For instance, section 923, Revised Statutes the theory that the landowner loses his land 1899, provides that: ‘Every instrument in writin any way or on any principle differing ing that conveys any real estate, or whereby any from the way and principle on which land- real estate may be affected, in law or equity,
proved or acknowledged and certified in the owners lose their land on general or special manner hereinbefore prescribed, shall be recordjudgments followed by sheriffs' deeds. Con- ed in the office of the recorder of the county in tra, those ways and principles are precisely which such real estate is situated. The next the same, and all relate, in the particulars in writing, certified and recorded in the manner
section is as follows: 'Every such instrument in hand, to the question of purchasing in hereinbefore prescribed, shall, from the time of good faith; that is, without notice. In other tiling the same with the recorder for record, imwords, a tax purchaser stands in the shoes part notice to all persons of the contents there
of and all subsequent purchasers and mortof any other purchaser at sheriffs' sales. gagees shall be deemed, in law and equity, to If the other purchaser would get title, the purchase with notice.' And the next section tax purchaser gets one and not otherwise. reads as follows: No such instrument in writTax suits are required by the statute to be ing shall be valid, except between the parties
thereto, and such as have actual notice thereof, brought against the owner of the land. If until the same shall be deposited with the rethat owner has kept his title off of record, corder for record.' and if the suit is brought against the last "The principles of law giving a sheriff's deed apparent record owner, and the purchaser upon a tax judgment and sale precedence over
an unrecorded deed from the apparent record buys without any notice of the fact that the owner are but the principles announced in the appa rent record owner has parted with his foregoing statutes and the foregoing cases. The title to another, then the true owner loses leading case on the effect of a tax deed borrows his land. Why? Because he neglected to unrecorded deed from the apparent record own
and uses the same principles applicable to an record his deed and thereby impart notice of er in cases arising on sheriff's sales on ordinary his title. If one of two stands to lose, the judgments. Vance v. Corrigan, 78 Mo. 94. law puts the loss on the one whose neglect And it has been held in a very late case (Stuart caused it.
v. Ramsey, 196 Mo. 404 [95 S. W. 382), su
pra), that, if the execution purchaser under a  But we have never held that a record tax sale had notice of an unrecorded deed, then, notice is the only method of imparting notice his title acquired at the tax sale was inferior of an outstanding title. The doctrine of this to that of the grantee in such unrecorded deed.
The same doctrine was recognized (arguendo) court is that, if the party relying on the lack in Allen v. Ray, 96 Mo. 542 [10 S. W. 15:3). of notice of land ownership in another at the * time of his execution purchase has actual It is true in the Bowers Case we were notice dehors the record, then a record no- dealing with a case where the true owner put tice to such party fills no office and becomes his hitherto unrecorded deed on record pendunnecessary. In Harrison Machine Works ing the tax suit, but we were also considerv. Bowers, 200 Mo. loc. cit. 231, 98 S. W. 773 ing the registry acts in connection with the et seq., our pertinent recording and tax stat- statutes relating to tax suits with the purutes are considered. There seems to be pose of showing that the purchaser at a tax such a widespread and mischievous notion sale stands precisely in the position of an ex
he gets no title where he has notice of an Emmons, 47 Mo. 304. As said by this court in outstanding title in another: (1) Either by Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. the record of the unrecorded deed during the 292 (22 S. W. 623, 38 Am. St. Rep. 656):
'Courts of equity, since their earliest foundation, pendency of the tax suit; (2) or such record have always recognized that the still, small after judgment and before the tax sale; (3) voice of suggestion, emanating as it will from or, which is close home; where he gets such no- contiguous facts and surrounding circumstances, tice dehors the deed record. The adjudicated quiry, is as potent to impart notice as a presi;
pregnant with inference and provocative of in cases are in accord on all the propositions dential proclamation or an army with banners.' just announced, and the last proposition we In Sensenderfer v. Kemp, 83 Mo. loc. cit. 588, will pursue further. The leading case of Black, J., speaking for the court, said: "No Vance v. Corrigan, 78 Mo. 94, recognizes it of the existence of the adverse claim of title
tice” is actual when the purchaser either knows arguendo. Watt v. Donnell, 80 Mo. loc. cit. or is conscious of having the means of knowl. 198, recognizes it. Lucas v. Land & Cattle edge, although he may not use them. Speck v. Co., 186 Mo. loc. cit. 456, 85 S. W. 359, rec-Sensenderfer, 84 Mo. 104."
Riggin, 40 Mo. 405. See, also, Swisher V. ognizes it by necessary inference. Sugg v. Duncan, 238 Mo. 425, 142 S. W. 321, recog
In Sweigart v. Reed, 221 Mo. 33, 119 S. nizes it similarly. Moore v. Woodruff, 146 W. 960, the case was ruled on the doctrine Mo. loc. cit. 602, 48 S. W. 489, recognizes it of Stuart v. Ramsey, on facts slightly differsimilarly. All those cases (and many more ing from, but equivalent in substance to, might be cited) lay down the general rule those in the Stuart-Ramsey Case. In the that if the tax suit is brought against the Zweigart-Reed Case Reed bought from Dunperson who appeared from the record to be negan by quitclaim deed, who, in turn, was owner the purchaser gets title, but mark the the purchaser at the tax sale, and therefore weighty exception, viz.: “In the absence of held subject to the equities between the true notice of facts that such person is not the owner, the plaintiff, and Dunnegan, and was true owner."
cast because Dunnegan was put on inquiry In Stuart v. Ramsey, 196 Mo. loc. cit. 415, and was charged with notice of the facts 95 S. W. 385 et seq. (q. v.) is an extended which such inquiry, reasonably pursued, discussion on the invalidity of a tax title would disclose. arising from the fact the purchaser was in
 Assuming, therefore, without citing formed before his purchase that another, the other authorities, that the rule is that, where true owner, claimed the land, and who was a purchaser at a tax sale has knowledge of not a party to the suit. The proposition is facts and circumstances prompting an inthere announced that the true owner does quiry on the part of a reasonably prudent not lose his land under such circumstances, person and where such inquiry from the and the grounds of such conclusion are satis- proper source would have disclosed the real factorily put as resting on the general doc- owner of the land, then the purchaser takes trine that he who takes a deed with actual nothing by the tax deed, because legal notice notice of an outstanding deed carrying the always follows facts sufficient to put a pertitle takes it subject to the outstanding title. son on such inquiry, we come to facts in In the Watt-Donnell Case, supra, notice was the instant case. imparted by actual possession in the party
 (3) Undoubtedly those officers charged holding the outstanding title. In the Stuart with the duty of collecting taxes in Sullivan Ramsey Case the tax purchaser was put county had notice of the fact that Abbie D. upon inquiry by a verbal notice that the tax Wilcox or her heirs had been paying the judgment defendant had parted with his taxes on this land for many years immedititle. In the latter case this court rigidly ately prior to the years on which the tax de applied the doctrine of plenary notice from linquency arose. Evidently, too, they had being put on inquiry by facts and circum- some sort of notice of Montgomery's patent, stances.
or at least of his sometime claim. They "It has often been decided by this court,” said knew, too, from the tract book that Brownlee Gantt, J., in the Stuart-Ramsey Case, “that, was entryman. We say so much as that beif one has notice of the actual possession of cause in the consolidated back tax book in land which another has, it will be notice to him of that other's title. Masterson v. Railroad, 72 the column headed “owner" appeared a noMo. 342; Davis v. Briscoe, 81 Mo. 27; Free- tation in the county clerk's handwriting that man v. Moffitt, 119 Mo. 280 (25 S. W. 87]; Brownlee, Montgomery, Abbie D. Wilcox, “or St. Joseph v. Baker, 86 Mo. App. 310; Wiggen- her heirs” were owners. horn v. Daniels, 149 Mo. 160 [50 S. W. 807]. information in that book, the tax attorney
Armed with that But these cases do not mean that actual notice of one's title may not be imparted otherwise omitted from his petition the heirs of Abthan by actual possession of the land. Actual bie D. Wilcox, and made Brownlee, Montgom. notice, within the meaning of our law, is used ery, and Abbie D. Wilcox parties defendin contradistinction to the constructive notice imparted by the record of a conveyance. It does ant, alleging therein that they were the ownnot mean direct evidence that the subsequent ers of the land. So the judgment recited that purchaser actually knew of the existence of the the allegations of the petition were found to feed. Any proper evidence tending to show it, be true. Hence the court found and spread facts and circumstances coming to his knowl. edge that would put a man of ordinary circum- of record the fact that Abbie D. Wilcox was spection upon inquiry, will suffice. Maupin v. an owner. We so held on a similar state of