facts in a late case not yet officially reported. Skillman v. Clardy, 165 S. W. 1050. So the execution made a similar recital, the levy was on her interest, the advertisement of the sheriff's sale made a similar recital, and (to cap the climax) the very sheriff's deed under which Campbell and Campbell hold made recitals meaning in legal intendment that they purchased her interest in the land. In this state of the record all question of notice to the tax purchasers of Mrs. Wilcox's ownership is set at rest by an adjudication of this court in Adams v. Gossom, 228 Mo. loc. cit. 582, 129 S. W. 20 et seq. In the Adams-Gossom Case, as in the instant case, the tax purchaser entered into possession under his sheriff's deed. In that case Adams was dead, and here Mrs. Wilcox was dead. In that case, as in the instant case, the dead Adams was a party defendant brought in by publication together with a former record owner, one Stay, and we there said:

“But in our case Gossom had notice of Adams' title and estate by the very proceedings under which he bought. Adams was owner in fact. He was notified by publication as owner. He was sued as owner. The judgment proceeded against him as owner. The sheriff's notice of sale proclaimed to all purchasers that Adams' interest had been seized by an execution levy and was about to be sold. Gossom's bid was for Adams' interest and his sheriff's deed purported to convey it to him. Gossom entered into possession under that deed, and therefore held possession on the theory that he had acquired title from Adams. Under such circumstances, he could not be allowed to claim that he had no

As the tax judgment was void as to Adams and his heirs, the ruling just made means that the case was wrongly decided nisi."

The ruling in the Adams-Gossom Case is precisely in point, and hence conclusive in the instant case, unless we are prepared to overrule it, and that we are not willing to do. (b) As said, there are some subsidiary questions in the case:

(1) Plaintiffs complain in their second count-their bill in equity-of irregularities in defendants' sheriff's deed, a sale in solido, a reference to a sale of only the "last tract" mentioned (said last tract being only one quarter quarter section), and so on. But it is evident the case has broken before those questions are reached. Hence they are reserved.

(2) So the former township organization law under which the taxes in question were assessed and levied, and under which the county treasurer was ex officio collector of back taxes and therefore brought the tax suit, was declared unconstitutional by this court in banc in State ex rel. v. Gibson, 195 Mo. 251, 94 S. W. 513. The opinion in that case went down March 30, 1906. Plaintiffs in the second count of their petition also attack the tax deed and judgment as void because founded on an unconstitutional law. In turn defendants defend the judgment and deed. They say the attack is collateral, that the tax judgment is res adjudicata, and so on. The extremely grave and deep-going decision of this case, and are put to one side questions thus raised are not necessary to a as reserved. Their gravity and far-reaching consequences bespeak a ruling only in a case where they are decisive.

(3) When the case at bar was ruled the first time (199 Mo. 289, 97 S. W. 886) it was on an unanimous opinion. The first opinion in that case broke defendants' title on the theory that a mere entryman did not hold such title as made the land subject to taxation by the state and county. A rehearing was granted on that ruling. At the rehearing the chief attention of counsel and court was directed to that ruling, and it was exploded.

notice of Adams' title and claim. He was plainly put on inquiry and must be held to know what such inquiry, reasonably and diligently pursued, would have resulted in finding out. Under such circumstances, knowledge is imputed to one who had the means of knowing at hand, and the recitals of his title papers are somewhat in the nature of an estoppel upon him to deny Adams' title. Wade on Law of Notice (2d Ed.) $$ 308, 309. That law writer sums up the general doctrine in this way: 'As a matter of fact, a purchaser of real estate may be totally ignorant of the recitals in his own deed; yet every recital of a fact affecting the title to the premises, contained in such deed, will be presumed to be known to such purchaser, and he will be affected with notice thereof in the same manner and to the same extent as though he had actual knowledge. Therefore it may be said that notice derived from the recitals of a deed to a Questions now emphasized by elaborate purchaser is actual, though it clearly rests upon discussion by counsel were overlooked or a presumption of law. It may be called actual, faintly pressed before, and we have come to however, in the same sense that a written notice delivered to a party who never reads it the conclusion that, if in the last (and printmay be called actual notice.' * * * At ed) opinion on the former hearing any docworst, Adams' title was on the foot of an un- trines were announced differing inferentialrecorded deed, and it is settled, doctrine that a ly or directly from those now announced, purchaser at a tax sale, who has notice of an unrecorded deed, takes subject to the rights of they should no longer be followed. the grantee in such deed, since he stands charged with the knowledge that the apparent record owner was not the real owner. Stuart v. Ramsey, 196 Mo. loc. cit. 414, 415 [95 S. W. 3821; Harrison Machine Works v. Bowers, 200 Mo. loc. cit. 232 [98 S. W. 770] et seq.; Zweigart v. Reed, 221 Mo. loc. cit. 43 [119 S. W. 960] et seq.). It is sound to reason from similar to similar; for the precept is, concerning similars, the judgment is the same. We rule, then, that Gossom bought with notice of the title of Adams.

[10] (4) It is argued that if the tax deed and judgment be void on their faces for any of the reasons claimed by plaintiff's, then equity does not take jurisdiction. We will not develop the contention. In Pocoke v. Peterson, 165 S. W. 1017 (not yet officially reported) the grounds of equitable interference in removing clouds on land titles are set forth (q. v.). We consider them perti

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

no injury was done to the lot owners because of | Sixth street leading from the bottoms up the objectionable language.

town and being the main traveled thoroughfare for heavy hauling between the two. The authority for this proceeding was ordinance

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 461; Dec. Dig. § 169.*] 7. EMINENT DOMAIN (§ 185*)-COMPENSATION No. 3209, and, as there are several ordinanc

-ASSESSMENT-APPEARANCE.

Where persons whose property is assessed for the benefits of widening a street appear in response to an order of publication in supplemental proceedings to cure errors in proceedings to condemn land and assess the benefits, they ordinarily waive their right to object to the form of such order.

district.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 461; Dec. Dig. § 169.*] 9. EMINENT DOMAIN (§ 243*)-JUDGMENT-RES

es in the record, we will call this the "original ordinance" passim. Under this original ordinance and in supposed compliance with charter provisions (article 6, 1908), condemnation proceedings were instituted in a court known as the "municipal court," and ripened [Ed. Note.-For other cases, see Eminent into judgment whereby damages were awardDomain, Cent. Dig. § 499; Dec. Dig. § 185.*] ed for the land taken in the rise of $166,000, 8. EMINENT DOMAIN (§ 169*)-COMPENSATION and the same amount was assessed against -ASSESSMENT-SUPPLEMENTAL ORDINANCE. A supplemental ordinance in supplemental the city and over 13,000 different tracts proceedings, pursuant to Kansas City Charter, owned by individuals and corporations, lying art. 6, § 23, to cure defects in the original pro- within a benefit district prescribed by said ceedings to condemn land and assess benefits No appeal from this for widening a street, need not definitely de- original ordinance. scribe each particular tract erroneously omit- judgment was taken either by any landowner ted or assessed in the original proceeding, but whose property was condemned nor by any it is sufficient to define the limits of the benefit landowner whose property was assessed with benefits. On that judgment the city collected of those benefit assessments the rise of $89,000 to pay said award of damages. Presently, and with matters in this fix, a certain railroad company, the Union Pacific, discovered the service on owners whose parcels were subject to assessment of benefits was defective, and brought its suit in equity in the circuit court of Jackson county against Kansas City and its officers, among them one Flynn. The life of the bill was injunctive relief in its favor (as an owner of property within the benefit district and which was assessed with benefits) against such assessment of benefits in the condemnation judgment under the original ordinance. Other parties in like fix (say, two or three) intervened. As there are several suits mentioned in this record, we will call this the "Flynn suit" to identify it. The Flynn suit ripened into a decree in favor of plaintiffs and inter

JUDICATA.

A judgment in proceedings to condemn land and assess benefits for widening a street was not res judicata on the question of liability of certain land for assessment of benefits, so as to bar supplemental proceedings brought pursuant to Kansas City Charter, art. 6, § 23, authorizing such proceedings to cure errors, defects, and omissions in the original proceedings, though the original verdict stated that as to land lying within the benefit district "not hereinbefore mentioned and described we assess no benefits," where such land was erroneously omitted.

Ed. Note.-For other cases. see Eminent Domain, Cent. Dig. §§ 551, 627-629, 700; Dec. Dig. § 243.*]

Graves and Woodson, JJ., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Condemnation proceedings by Kansas City against St. Louis & Kansas City Land Com-veners. pany and others. From the judgment, defendants appeal. Affirmed.

It is sufficient to say of the Flynn suit that the condemnation judgment under the original ordinance was not assailed for White & Lyons, Warner, Dean, McLeod & lack of jurisdiction in the municipal court to hear any condemnation proceedings and asLangworthy, Sebree, Conrad & Wendorff, Ball & Ryland, Kenneth McC. De Weese, sess any benefits to pay damages awarded therein (a newly discovered theory, now Watson, Watson & Alford, Cowherd, Ingraham, Durham & Morse, and Scarritt, Scar-pressed), but, in substance, that case proceedritt, Jones & Miller, all of Kansas City, for ed on the theory that plaintiff had no notice appellants. A. F. Evans, City Counselor, of of the proceeding, and hence the judgment Kansas City (Jay M. Lee and J. C. Pether- as to it was void. The chancellor found a bridge, Asst. City Counselors, both of Kansas City), for respondent.

lack of notice and process (the order of publication required by the charter was not published a sufficient time), and that the several assessments made against plaintiff's and inLAMM, C. J. This is an appeal by corpo- terveners' properties were void because of rate owners of property in Kansas City whose parcels were assessed to pay benefits to meet such lack of service. Hence the municipal an award of damages to other persons whose court had acquired no jurisdiction of them. property was taken or damaged in a proceed-The scope and object of the decree in the ing to widen a street. Kansas City in 1909 Flynn Case are indicated by the following exundertook to open and widen Sixth street from the east line of Bluff to the west line of Broadway by condemning 40 feet of private property on the south side of the street; For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

cerpt:

"It is therefore considered, ordered, adjudged, and decreed by the court that said assessments, in so far as they effect (sic) or purport to effect (sic) plaintiffs or any of them or any of their

several properties, be and the same are hereby annulled and for naught held; that the several assessments against the respective properties aforesaid of the plaintiffs and each of them be and the same are hereby set aside and annulled; the defendant, Kansas City, M. A. Flynn, city clerk, U. L. Weary, clerk of said municipal court, and the officers and agents of said city, be and they are each of them perpetually restrained and enjoined from making out, certifying, or attesting any tax bills against the several properties of the plaintiffs or any of them under and by virtue of said assessments, and that plaintiffs have and recover from the defendant, Kansas City, the costs herein expended and have execution therefor."

Neither side took an appeal from the Flynn decree, and it remained operative as a perpetual injunction against collecting such unpaid assessments.

ran on the theory the unpaid benefit assessments were void. The charter provision in question, together with the supplemental ordinance will be found set forth in hæc verba in State ex rel. v. Seehorn, 246 Mo. loc. cit. 549 et seq. (q. v.) 151 S. W. 716, and they will not be reproduced here. The object of said sensible charter provision was to afford a remedy when, by any error, defect, or omission in condemnation proceedings, assessments made against private property that cannot be enforced or collected, or where property in the benefit district is omitted, etc. In such case it was provided that the city may by ordinance institute and carry on supplemental proceedings to make a proper assessment against any parcel of property in the benefit district erroneously omitted or erroneously made in the first proceeding, etc.

With things in this fix, it seems that Kansas City attempted to repeal the original ordinance presumably for the purpose of aban- Presently, under such supplemental and doning the proceeding and returning to those curative ordinance, a new proceeding was inpaying assessments the amounts so paid. stituted in the municipal court to make a new But the city was reckoning without its host; assessment against such properties within the for, pending such repeal measure, another in- benefit assessment district as had not acceptjunction suit was brought in the Jackson ed the former judgment by payment. Proper circuit court; this time against the city and charter notice was given, and, among others, in favor of those property owners whose the present appellants, save one, appeared. lands had been condemned under the original The assessments left unpaid under the origordinance and who had been awarded dam-inal proceeding on the original ordinance ages, to wit, one Tuller and others. These were spread by this new proceeding over the new suitors-Tuller and others-took the position in their bill that on recognized equitable principles the city, under its charter, could not repeal the original ordinance and abandon such condemnation proceedings so far as those persons were concerned whose property had been taken or damaged and to whom damages had been awarded by the judgment, where (as here) benefits had been assessed and in part paid, and where (as here) such property owners had appeared, tried out the issue as to them, and recovered their damages, and where (as here) the judgment was not appealed from. We will call this case the "Tuller Case" for convenience. This Tuller Case also ripened into a decree whereby the city was, in effect, perpetually enjoined from repealing the original ordinance and abandoning the condemnation proceeding, and this decree also was unappealed from, but remained operative as a perpetual injunction.

By the decrees in the Flynn and Tuller Cases the city (to borrow the homely similitude of one of its briefs) was enjoined "fore and aft. It could neither go forward nor backward." In this peculiar condition it enacted an ordinance, No. 7539, which we will call the "supplemental or curative ordinance." The general object and purpose of this supplemental ordinance was to authorize a proceeding to assess and spread the balance of the benefit assessments (viz., those unpaid under proceedings on the original ordinance) over the nonpaying properties in the benefit district. This supplemental ordinance was based on the authority of section 23, art. 6, of the present charter of Kansas City, and

nonpaying parcels in the benefit district, assessing to Kansas City her share, and the appellants here, save one, appealed from that judgment to the circuit court of Jackson county, and the case was assigned to Judge Seehorn's division. In that court such proceedings were had that the case reached a stage of the trial where Judge Seehorn announced his determination to try out the question of the amount of damages awarded to property owners whose property was taken or damaged under the original proceeding, as well as the question of assessing and spreading benefits over nonpaying properties within the benefit district; his view being that the nonpaying property owners to be assessed with benefits were necessary parties to a proceeding awarding damages, hence a judgment void as to one was void as to the other; that to award damages and lay or spread assessments to pay them constitute an indivisible proceeding with two objects riding together.

The pleadings in this supplemental proceeding warranting such contentions, two prohibition suits were brought in this court to stop the trial in Judge Seehorn's court; one we will call the "Graham-Seehorn Case"; the other, the "Tuller-Seehorn Case." Preliminary rules in prohibition issued and those cases will be found reported in 246 Mo. at pages 541 and 568, respectively, and 151 S. W., at pages 716, and 724, respectively.

So far as pertinent here, the Graham-Seehorn Case held in judgment the main question: Had the charter court, known as the "municipal court," any jurisdiction whatever of any condemnation proceedings. That

on an appeal to the circuit court from a judgment in a supplemental proceeding. Another question decided in the Tuller-Seehorn Case is thus correctly epitomized in the eighth syllabus:

Accordingly in the Tuller-Seehorn Case our writ issued, and the circuit court of Jackson county was prohibited from trying the question of the amount of damages awarded to those property owners whose property was taken or damaged by the widening of Sixth street under the original, unappealed-from judgment. Accordingly in the Graham-Seehorn Case we denied a writ of prohibition. When our judgments went down in those prohibition cases, the circuit court of Jackson county resumed the trial of the appeal from the judgment of the municipal court in the supplemental proceeding at the point the trial was arrested by our preliminary rules in prohibition proceeding to verdict and judgment in those particulars in line with our pronouncements in the prohibition cases, the verdict assessing part of the damages against the city, and part against the nonpaying parcels of property in the benefit district, including appellants' parcels.

question we answered in the affirmative by | to damages and benefits settled by it and acholding the court a constitutional repository quiesced in, and are no sufficient reasons for of power in that behalf. In the Tuller-See- a trial de novo of such particular matters horn Case several questions were decided. One was that in supplemental or curative condemnation proceedings, brought in the municipal court under a supplemental ordinance, as here, an appeal would lie in favor of a property owner or any party interested "Property owners in the benefit district whose to the circuit court. Another was that, property is not taken, but which will be chargwhere such supplemental proceeding under ed with its share of the damages to be paid for the property taken for the street, are not necessuch supplemental ordinance related only to sary parties to the issue of the value of the making assessments on property against property to be taken for the street; nor is it which an assessment was erroneously made a denial of due process of law to deny to them in the original proceeding or was erroneously high valuation of the property to be taken, a day in court to aid in preventing an unduly omitted to be made, as here, the jury should whose value in the end must be assessed against not include in their verdict the assessment their property. The necessary parties are the of benefits and damages on property properly city as plaintiff and the owners of the property to be taken as defendants; though, as a matincluding in the first verdict; i. e., those propter of grace, the owners of other property in erties taken or damaged the owners of which the benefit district may be permitted to aid in appeared at the first trial and acquiesced in preventing a too high valuation." the judgment, or those properties assessed with benefits the owners of which paid. But the scope of their verdict could not extend beyond the assessment of property so wrongfully made or omitted to be made. Another question decided was that the verdict and judgment in the original proceedings were valid and binding as to those who appeared and accepted them, and cannot be taken either as interlocutory or as vacated because of an appeal in the supplemental proceedings to the circuit court. Another question decided was that Kansas City by its charter may, through its common council, repeal an ordinance for widening a street, and thereby a judgment for compensation and benefits in a condemnation proceeding is made void; but that such repeal is, by charter provision, restricted to "any time before any of the parties assessed with benefits shall have paid the amounts so assessed"; that the charter provision providing that no assessments made in the original proceeding in widening a street "shall be affected or interfered with for the reason that any other assessment made in the same proceeding may be invalid in whole or in part" is the basis of the power given in the charter to the city by supplemental proceedings to subject only property omitted by mistake or illegally assessed to its proportional part of the costs of the improvement, and leaves the assessment of other property in the original proceeding either with damages or benefits stand as regular, and not to be tried anew on an appeal in a supplemental proceeding, absent an appeal from the judgment in the original proceeding, as here, and present a payment of benefits and an award of damages to persons appearing, as here. Other reasons based on other charter reasons are given for that conclusion, and, among other things, it was held that the fact that a condemnation proceeding was an entirety and the fact that the I. Of Questions Determined in the Tullerdamages and benefits must balance each othSeehorn and Graham-Seehorn Cases. er are no sufficient reasons for vacating the [1] Broadly, and as a main proposition, it original judgment of the municipal court as is contended by appellants' aggregation of

169 S.W.-5

Of the 13,000 tracts involved in the assessments of benefits, an aggregation of only 13 corporate defendants appeal on due steps on a joint bill of exceptions. There is an appellant, the Union Depot Bridge & Terminal Railroad Company, that joins in questions raised by its coappellants, but also raises questions singular to itself. Those questions will be considered separately.

What we have to say in determining this appeal may be put under the following heads:

(1) Questions determined in the Tuller-Seehorn and Graham-Seehorn Cases.

(2) New questions arising at the trial after our judgments in those two prohibition cases went down (and herein of those left open). (3) Questions singular to the appeal of the Union Depot, etc., Company. Of these seriatim.