The interesting details of the vicissitudes to which the "register's book" and the "receiver's book" of Pemiscot county have been subjected is to be gathered in shreds and ing here from that county involving swamp land titles, and may be pieced together into a fairly consistent history. When the courthouse of that county was destroyed by fire in 1882, both the "register's book" and the "receiver's book" were temporarily out of the custody of the clerk of the county court. He had permitted Hon. George W. Carleton, a lawyer and abstractor, resident at Gayosa, the then county seat, to borrow and to take these books out of their usual custody for a short time, in order. that entries therefrom might be copied into Carleton's abstract. While in the custody of Carleton, the courthouse with all records of land titles, court records, and records of whatever sort was destroyed by fire. These books remained in Carleton's hands thereafter, almost forgotten, till his death, in 1893, when they passed to his heirs as if assets of his estate, and were sold by the administrator or by his heirs, just as if they had been in fact Carleton's property. Subsequently, and in very recent years, the purchasers of the two books have again placed them in the custody of the county clerk of Pemiscot county. the reasons above suggested it would other- [ wise seem queer that such patents have not theretofore been issued, for this act was passed, as stated, on March 10, 1869. It repealed all inconsistent acts and provisions, | patches from the vast number of cases comand, when read in connection with the act of March, 1868, supra, has had the effect of practically crystallizing the statutory swamp land law of this state. Pursuant to the act of March 1, 1855 (Laws of Mo. 1854-55, supra) the several registers of swamp lands and the several receivers of public moneys in the southeastern group, whether such officers were registers and receivers, respectively, ex officio, as they were in some counties in this group, or whether they were elected, proceed ed to make sales of these lands and to attend to their duties as required by said act. The lands being then held to be practically valueless, these sales were slow, except when reclamation scrip could be "located" on them. There were in many of these counties more than 300,000 acres of these swamp lands, embracing many thousands of different tracts, according to the smallest government subdivision. This fact made the keeping of books, wherein there were set down the number of the swamp land scrip offered in payment for the land, the name of the purchaser of the land, the description of the land, the price thereof, the aggregate number of acres of such land purchased, and the aggregate price paid therefor. This was a matter of absolute necessity, otherwise it would have been impossible to have performed any of the duties made incumbent upon these two officers in an intelligent way. These books, which were usually designated as the "register's book" and the "receiver's book," were kept in the offices of such officers and in the offices of the treasurer and county clerk, where these two latter officials were receivers and registers of swamp lands, ex officio, respectively. When these officers-the receiver of public moneys and the register of swamp lands were put legally out of office by the acts of 1868 and 1869, supra, their books and the records kept by them passed into the custody of the county clerks of the several counties of the southeastern group for the most part. It may be said in passing, as a matter of history, that the Civil War put these two offices and officers in practically all counties in the southeastern group out of commission for a time, and that from the beginning of the Civil War until the passage of the acts of 1868 and 1869 above referred to, abolishing their offices, none of them in fact performed any of the duties incumbent on them by statutes. In some of the counties, as, for example, Pemiscot county, the books kept by these officials were saved from loss by war, almost by a miracle, only to pass for a long period by the catastrophe of fire, as an incident of the burning of the courthouse therein in 1882, into the hands of private persons, and were by these private persons for many years retained. Many special acts of the Legislature, passed throughout the years before the Constitution of 1875, permitting Pemiscot, Dunklin, and other of the southeastern group to donate portions of the swamp lands therein to railroads, toll roads, plank roads, and other corporations, have not been noticed. They are not pertinent to the matter now in hand. Likewise some special provisions affecting the minimum price at which swamp lands in Dunklin and counties other than Pemiscot could be sold are passed over as not pertinent, till a swamp land title with this point of minimum price in it shall come up from these counties. See act of January 30, 1857, Laws 1856-57, p. 464. Such, in brief, is the history of swamp land legislation affecting the title to such lands in the southeastern group in 'general and in Pemiscot county, Dunklin county, and Scott county more particularly. [1, 2] After this historical diversion I return to the subject in hand. It is seen by the act of 1901 (Laws 1901, p. 251), known as the "Carleton Act," making the abstracts he had prepared from the register's and receiver's books prima facie evidence of land titles in Pemiscot county. (That act, by the way, has been declared unconstitutional by this and the federal courts, which rulings lead to the enactment of the act of 1907 [Laws 1907, page 271], remedying the vice of the former act). It stands to reason that if Carleton's abstract was admissible in evidence under either of said acts, which counsel for respondent insists it was, then under and by virtue of the well-known rules of evidence the original books in the hands of Iveyed the land to his son James B. Easley Mr. Brewer, from which the abstract was made, was also admissible, because it was the best evidence; the original is always the best. We are therefore clearly of the opinion that the court did not err in admitting the original books. We had an occasion to review this law somewhat extensively in the case of Mosher v. Bacon, 229 Mo. 338, 129 S. W. 680, and there we considered the act of the Legislature creating the offices of the register and receiver of swamp lands, in the counties therein mentioned, their duties, the mode of selling those lands, and the books they were required to keep, and what they should show, etc. After so doing we held that when a purchaser had fully complied with all of the provisions of said laws, and paid the purchase price for the lands entered, and received the receipts of said officer therefor, as therein provided for, that he thereby acquired the equitable title to the land so entered and paid for, notwithstanding, through the fault of the officers of the state or county, he never received a patent therefor as prescribed by the act, also that the register's and receiver's books required to be kept by said act were notice to the world that the county had sold the lands shown thereby, and that if any one subsequently purchased them again, he did so at his peril. It was also there held that said equitable title was superior to and better than the legal title subsequently acquired from the county. The law as announced in that case is controling in this. But the application of that principle of law to this is not absolutely necessary for appellant's right to recover here, because William G. Easley was the common source of title through whom both parties to this suit claim title which forecloses all necessity to make inquiry into said Easley's title. [3] II. Counsel for appellant contends that the judgment of the circuit court should be reversed for the reason that the record shows affirmatively that the respondent has no title whatever to the land in controversy, for the reason that the tax judgment against William G. Easley, under which the respondent claims title, was rendered March 15, 1879, that the execution thereunder was issued September 8, 1879; that the execution was delivered to the sheriff September 10, 1879; that the sheriff's levy was made on the same day, and the sale thereunder of tract No. 2, the N. 1⁄2 of the N. E. 4 of section 18, township 17, range 11, etc. (the remaining part of the land sued for was not sold), was made November 4, 1879. by deed dated April 13, 1873, duly recorded April 14, 1873. This evidence shows that William G. Easley, the defendant in the tax suit, under which both the respondent and appellant claimed title, had disposed of the land to his son James, some six years before the tax suit was instituted, the judgment rendered, or sale made thereunder. That being true, the judgment and the sale of the land thereunder were absolute nullities, in so far as James and those who claim through him are concerned. This alone is sufficient to justify a reversal of the judgment of the circuit court. [4-6] But there is another equally valid reason why the judgment should be reversed, and that is the deed shows that that part of the land which was sold was made on November 4, 1879, at the November term of said court. This court takes judicial notice of the terms of the various circuit courts of the state, as they are established by public statutes. From 1871 to a date subsequent to the date of this sale, the terms of the Pemiscot circuit court began on the "second Monday of March and September" of each year. From this it is seen that there was no such term as the November term of the circuit court of Pemiscot county in the year 1879, when the sale took place. And sections 2380 and 6838, R. S. 1879, the such sales to be made during the term of the same as our present statutes, required all sale did not take place during a term of circuit court. It thus appearing that the the sale was also void on that account, as the circuit court, it necessarily follows that this court has repeatedly held. But independent of the two defenses just mentioned, the record shows that the sheriff only sold the N. 1⁄2 of the N. E. 4 of section 18, township 17, range 11, and did not pretend to sell the N. E. 4 of section 18, township 17, range 11. Under this showing the respondent had no color of title whatever to this 160 acres. III. Respondent also interposed the defenses of the statute of limitations and estoppel. After a careful reading of this entire record, which is not unusually long, we fail to find a scintilla of evidence preserved tending to support either of those defenses, but, upon the other hand, the evidence shows that the lands were wild, swamp-timber lands, uncultivated, and in the possession of no one. Under these views of the case, we are of the opinion that the judgment of the circuit court should be reversed, and that a judgThe evidence also shows that the appel- ment should be here rendered in favor of lant derived his title through William G. appellant in accordance to the prayer of the Easley through mesne conveyances. He con-petition. It is so ordered. All concur. JOHNSON et al. v. CALVERT. (No. 16,388.) TION. Where parents conveyed land in controversy to their daughter-in-law "and to the heirs" of their son, the daughter-in-law's husband, in 1865, and in 1881 the daughter-in-law and her husband conveyed the land to defendant's grantor by warranty deed purporting to convey the whole title to the land, which deed was promptly recorded, and the grantee and his successors in title thereafter continued in possession for more than the statutory period of limitation, the heirs of the son could not thereafter recover any part of the land in ejectment. [Ed. Note.-For other cases, see Ejectment, Cent. Dig. §§ 16-29; Dec. Dig. § 9.*] Bond and Woodson, JJ., dissenting. Thomas Johnson heirs and assigns, against the lawful claim or claims of all persons whatsoever, claiming or to claim the same or any part thereof." The words italicized are written with pen, and are interlineations into a printed form of warranty deed. There is a controversy about whether the consideration recited in this deed was actually paid, and also another controversy relating to the reasons which moved Robert Johnson and his wife to execute the deed, but, as the instrument is valid, whether the alleged consideration was paid, or whether the deed was a gift (the right of no creditor being involved), we do not think that the consideration upon which the instrument was based is a necessary factor in this case. On June 16, 1881, Mary E. Johnson and In Banc. Appeal from Circuit Court, Clin- her husband, Thomas Johnson, made to one ton County; A. D. Burnes, Judge. Ejectment by Edgar C. Johnson and others against Frank Calvert. Judgment for defendant, and plaintiffs appeal. Affirmed. Plaintiffs sue in ejectment for 20 acres of real estate in Clinton county. The cause was tried by the court sitting as a jury, and a judgment entered for defendant, from which plaintiffs appeal. Both parties claim under a deed hereinafter set out in full, a construction of which forms the most important issue in this case. The defendant also claims title through the ten-year statute of limitations. Robert L. Searce a warranty deed purporting to convey the whole title to the land in controversy. This deed was promptly placed of record. Defendant claims title under this deed to Searce; and, if it passed a fee-simple title to the whole tract, then the judg ment is for the right party. Thomas Johnson, the ancestor of plaintiffs, died on April 16, 1884, and his wife, Mary E., died in April, 1909. The descendants of Mary E. Johnson, who are likewise descendants of Robert Johnson, are the plaintiffs in this action. One of said plaintiffs, Mrs. Carter, was born subsequent to the execution of the deed by Robert Johnson and wife now in judgment. On October 9, 1865, one Robert Johnson, of Clinton county, owned the real estate which forms the subject-matter of this action. Said Robert Johnson at that time had a son named Thomas Johnson. The latter had intermarried with one Mary E. Johnson, of which union five children were born and then living. On the date first named Robert Johnson and wife executed the following warran-judgment should have been for plaintiff's. ty deed: "This deed, made and entered into this ninth day of October, A. D. 1865, by and between Robert Johnson and Clarissa Johnson, his wife, of the county of Clinton, in the state of Missouri, parties of the first part and Mary E. Johnson, wife of Thomas Johnson of the county of Clinton, in the state of Missouri, party of the second part, witnesseth: That the said parties of the first part, for and in consideration of the sum of four hundred dollars, to them in hand paid, by the said party of the second part the receipt whereof is hereby confessed, do by these presents give, grant, bargain and sell unto the said party of the second part and the heirs of the said Thomas Johnson and assigns forever, the following described real estate, lying and being in the county of Clinton and state of Missouri to-wit: [Description omitted.] "To have and to hold the same, with all the privileges and appurtenances thereto belonging or in any wise appertaining, unto him, the said party of the second part and to the heirs of the said Thomas Johnson and assigns forever; the said parties of the first part, for themselves, heirs, executors, and administrators, do covenant and agree that they will warrant and forever defend the title to the said real estate, and every part thereof, unto him, the said party of the second part and the heirs of the said Plaintiffs contend that the deed hereinbefore set out conveyed only a life estate to their mother, Mary E. Johnson, with remainder to the children of Robert Johnson, and that, the life estate of said Mary E. Johnson having terminated at her death in 1909, the On the other hand, defendant asserts that, as a living person cannot have heirs, the interlining into the deed of the words "to the heirs of Thomas Johnson" can have no force, and should be rejected, thus leaving the whole title in said Mary E. Johnson, and that said title passed by the deed from Mary E. Johnson and Thomas Johnson her husband to Searce, executed June 1, 1881, and therefore is now fully vested in defendant. These contentions seek a construction of the deed before quoted from Robert Johnson and wife to Mary E. Johnson "and the heirs of Thomas Johnson." The evidence in regard to adverse possession will be noted in our opinion. Frank B. Ellis, of Plattsburg, and John A. Connett, of St. Louis, for appellants. W. S. Herndon, of Plattsburg, for respondent. I. Estate Tail. BROWN, J. (after stating the facts as above). One theory of appellants is that the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes deed from Robert Johnson and wife conveyed | strue it according to its full legal and technian estate tail, which, by sections 2872 and cal import. However, in this case the deed 2874, R. S. 1909, was converted into a life estate in said Mary E. Johnson, with remainder to her bodily heirs, who are the plaintiffs in this case. It is true that the plaintiffs are the bodily heirs of Mary E. Johnson, but they are not so described in the deed. In fact, they are not referred to as the heirs of Mary E. Johnson; neither do we find any language in the deed which designates them as remaindermen. Therefore this point must be ruled against plaintiffs. to be construed bears on its face almost conclusive evidence that it was drawn by a layman. The ordinary printed form of warranty deed was used, and the words "his heirs" are erased therefrom, and the words "to the heirs of Thomas Johnson" are written in three times with a pen. There are two rules of law well accepted in our state which render it impossible for us to ignore the words "to the heirs of Thomas Johnson" in this conveyance: First, the intent of the grantors, rather than technical rules of law, must be considered in construing the deed. The authorities upon this point are numerous, as well as harmonious: Long v. Timms, 107 Mo. 512, loc. cit. 519, 17 S. W. 898; Hunter v. Patterson, 142 Mo. 310, loc. cit. 318, 44 S. W. 250; Bean II. Deed to Heirs of Living Person. The main contention of plaintiffs is that Thomas Johnson could not have had any heirs in 1865, because he was then living; therefore the words "to the heirs of Thomas Johnson," written three times into the deed, v. Kenmuir, 86 Mo. loc. cit. 671; Aldridge are vague, meaningless, and should be rejected as surplusage and given no effect. In support of this insistence the following cases are cited: Arthur v. Weston, 22 Mo. loc. cit. 382; Boone v. Moore, 14 Mo. 420; Hall v. Leonard, 1 Pick. (Mass.) 27; Morris v. Stephens, 46 Pa. 200; Green v. Sutton, 50 Mo. 186; and Desloge v. Tucker, 196 Mo. 599, 94 S. W. 283. In Arthur v. Weston, 22 Mo. 378, it was held that a deed to W. W. Phelps & Co. only operated to pass title to Phelps, and not to other members of the firm. In Boone v. Moore, 14 Mo. 420, it is held that a conveyance to the "heirs" of a man then dead was valid. The deed construed in Green v. Sutton, 50 Mo. 186, is so entirely unlike the one now in judgment that what was said in that case is not authority here. The Tucker Case (196 Mo. 599, 94 S. W. 283) contains a definition of the word "heirs" as used in section 152, R. S. 1909. I am not able to see how any of the Missouri cases cited furnish any very solid support for appellants' position. These cases are quite old, and seem to have been decided when technical common-law rules for construing deeds were in more favor than at the present time. The same may be said of the Massachusetts and Pennsylvania Cases above cited. In the Massachusetts case (1 Pick. 27, loc. cit. 31) the announcement is made that the rule in that state for construing wills is not the same as for construing deeds. While with us the rule is the same. Long v. Timms, 107 Mo. 512, loc. cit. 519, 17 S. W. 898. In Morris v. Stephens, 46 Pa. 200, a deed to the heirs of a living man was held void for uncertainty. v. Aldridge, 202 Mo. 565, loc. cit. 572, 101 S. W. 42; Utter v. Sidman, 170 Mo. 284, loc. cit. 294, 70 S. W. 702, and Speed v. Terminal Ry. Co., 163 Mo. 111, loc. cit. 124-126, 63 S. W. 393. Second, the words "to the heirs of Thomas Johnson" are interlined into this deed with a pen, the body of the deed being on a printed form; and the rule is that, where there is a conflict between the written and printed words of an instrument, the written words must be given effect, even when to do so is to disregard or place a different color upon the words or clauses which are printed. Davidson v. Manson, 146 Mo. loc. cit. 618, 48 S. W. 635; De Paige v. Douglas, 234 Mo. 78, 136 S. W. 345. The intent of the grantors (who are dead), like the intent of a testator, is the polestar which must lead us to a correct construction of the deed in judgment. We may not treat as meaningless what the grantors have caused to be inserted three times into the deed. If the word "heirs" is void or meaningless when used in reference to a living person, then it is more compatible with the principles of modern construction to place upon said word (heirs) a definition or construction in harmony with the evident intent of the parties who executed the deed. There is not a word in the deed in judgment which points to either a mere life estate in Mary E. Johnson or to a mere remainder in the heirs of Thomas Johnson. Whatever title this deed conveyed was passed in præsenti to the grantees therein. It is permissible to supply or omit words when the context of an instrument calls for such construction. Grace v. Perry, 197 Mo. loc. cit. 559, 95 S. W. 875, 7 Ann. Cas. 948, and cases In the light of the circumstances under there cited. I am, however, convinced that which the deed in judgment was executed, it is never safe to intermeddle with the lanwe are not justified in holding that the words "to the heirs of Thomas Johnson," inserted in said deed three times, may be rejected as surplusage, or as void for uncertainty. When the word "heirs" is penned by a seasoned disciple of Blackstone, we may con guage used by a grantor or testator to a greater extent than is indispensable to give effect to his obvious intent. It appears to me that even a layman would know that, in order to limit the title of the grantee Mary E. Johnson to a life estate, some word or words would be necessary to explain that intent; also that some word or words would be necessary to constitute the other grantees remaindermen instead of tenants in common. I am not aware of any rule whereby the first party named as grantee in a deed takes any greater title than grantees subsequently named in such instrument, not even where, as here, the latter grantees are designated by referring to them as a class. The only two cases where deeds very much like the one in judgment have been construed in Missouri are Fanning v. Doan, 128 Mo. 323, 30 S. W. 1032, and Franklin v. Cunningham, 187 Mo. 184, loc. cit. 195, 86 S. W. 79. The deeds construed in those cases designated as grantees a woman by name and then generally the heirs of her deceased husband (as a class), and such deeds were mon. held to pass to the woman named and heirs of her husband the title as tenants in comThose cases are not precisely like the one at bar, because the husbands whose heirs were designated as grantees in those deeds were dead, while here the husband, Thomas Johnson, was living. If we should read the words "heirs of Thomas Johnson" to mean "children of Thomas Johnson," then the cases last before noted furnish complete support for holding that it was the intention of Robert Johnson and wife to make their daughter-in-law, Mary E. Johnson, and the children of their son, Thomas Johnson, tenants in common-a construction which is in accord with reason and experience. The five children of Thomas and Mary E. Johnson were infants in 1865, when the deed was made, the oldest of those children being then only nine years old, and I am unable to see any reason why their grandfather should not have made them tenants in common with their mother if he so desired. its technical sense, but should be construed as meaning children, so that the deed took immethe heirs of B. by A., his wife, the title vests diate effect. If a deed grants land to A., and immediately in A. and the children then living of A. and B., as the word 'heirs' is to be taken as meaning the living children of the persons mentioned in the deed, rather than an indefinite line of descendants." To the same effect are the cases of Heath V. Hewitt, 127 N. Y. 166, 27 N. E. 959, 13 L. R. A. 46, 24 Am. St. Rep. 438; and Grimes v. Orrand, 2 Heisk. (Tenn.) 298; Tinder v. Tinder, 131 Ind. 381, 30 N. E. 1077; Tharp v. Yarbrough, 79 Ga. 382, 4 S. E. 915, 11 Am. St. Rep. 439. The Grimes Case is especially in point here, because the briefs of the attorneys show that the losing party in that case unavailingly relied upon many of the cases which plaintiffs have cited as tending heirs of a living person is void. We thereto sustain the position that a deed to the fore hold that the deed in judgment conveyed the land in controversy to Mary E. Johnson and the five children of Thomas Johnson, who were living at the time that deed was executed as tenants in common. III. Unborn Children. One of the plaintiffs, Mrs. Carter, was born after the deed now in judgment was executed. We do not think she took any title under or through that deed, because the law favors vested, rather than contingent, estates. Tharp V. Yarbrough, 79 Ga. 382, 4 S. E. 915, 11 Am. St. Rep. 439. There is nothing in this deed which tends to show a design to convey to unborn children. At any event, Mrs. Carter, as well as the other plaintiffs, seem to be barred by adverse possession, as will here after appear. IV. Erasure of Words "His Heirs." It would certainly do less violence to the A further contention is made by plaintiffs language of grantors to read said word that, as the words "his heirs" appearing in "heirs" as and for the word "children" than the printed form of the deed used were erasto manufacture and insert into the deeded and the words "heirs of Thomas Johnson" enough words to cut down Mary E. John-interlined in lieu of the words thus erased, son's title to a mere life estate. We are this shows an intention on the part of the therefore of the opinion that the written grantors to cut down the title of Mary E. This contention word "heirs," as used in the deed under con- Johnson to a life estate. sideration, should be read "children," there- cannot be sustained. Under the common law by making the wife, Mary E. Johnson, and it seems to have been necessary that the word the children of Thomas Johnson tenants in "heirs" should follow the name of the grantee in a deed to create a fee-simple estate, but In this country, where nearly every man that rule is abolished by section 2870, R. S. who owns real estate is the father of chil-1909. This has been the statutory rule since dren, few laymen are familiar with the rules R. S. 1855, vol. 1, p. 355. See, also, of law whereby lands may pass to collateral O'Day v. Meadows, 194 Mo. loc. cit. 621, 92 or ancestral heirs. If we speak of "heirs" of S. W. 637, 112 Am. St. Rep. 542. a living landowner, the mind of the layman intuitively turns to the children of such landowner. Such a construction is not new or strained, but is supported by respectable authorities. In Devlin on Real Estate (3d Ed. 1911) vol. 2, § 846d, p. 1556, it is said: common. "Where land was conveyed to 'the heirs' of a person living at the time, the court was of the opinion that the word should not be taken in 1855. As the words "his heirs" were not necessary in this deed to pass a fee-simple estate to Mary E. Johnson as one of the tenants in common, it would certainly be a strained construction to hold that the mere act of striking out these unnecessary words would revive the common law and change the meaning or the deed. Hunter v. Patterson, 142 Mo. 310, 44 S. W. 250. |