"That heretofore, to wit, on the day of August, 1897, the above-named defendants did wrongfully take and appropriate for the purpose of a railroad right of way a strip of land running diagonally through said lots to the extent of 10 feet on each side of the center line of the railroad roadbed, as the same is now located and situated on said lots; that said defendants took and appropriated said strip of land as aforesaid without any condemnation proceedings, or other lawful right to do so, and without the consent of the plaintiffs, or either of them, and did so without paying any compensation whatsoever; and that no compensation has ever been paid to the plaintiffs, or either of them, on account of the wrongful taking of said strip of ground for public use as aforesaid."

The petition then offered to convey the title to the right of way to defendant, and prayed for $5,000 as damages for the appropriation.

On October 12, 1901, judgment was rendered in that case as follows:

"Now, on this day, the above-entitled cause coming on regularly to be heard, and the defendant, Kansas City & Westport Belt Railway Company and defendants having filed their answer herein, and the plaintiffs appearing by N. F. Heitman, their attorney, and the defendants appearing by Johnson & Lucas, their attorneys, and the parties duly waived a jury in open court, and the court, having heard and duly considered the pleadings, evidence, and arguments of counsel, finds the issues in favor of the plaintiff and assesses plaintiff's damages at the sum of $600.

"Wherefore, it is considered, ordered, and adjudged by the court that plaintiffs have and recover of and from the defendants the sum of $600, and costs of suit, on account of the appropriation of a right of way for railroad purposes over the premises described in plaintiff's petition, situate in Jackson county, Mo., to wit, lots 101 and 104 in Campbell's addition to the town of Westport, now a part of Kansas City, Mo., across the above-described tract of land as said right of way is now located thereon; said appropriation of said right of way having taken place without the payment of just compensation, as alleged in plaintiff's petition. And defendants did in open court pay to the plaintiffs the damages as aforesaid, and the plaintiffs acknowledge satisfaction of the judgment afore

said.

"Wherefore, it is ordered, adjudged, and decreed by the court that the title to said premises be fully vested in the above-named defendant Kansas City & Westport Belt Railway Company free and clear from any and all claims."

With reference to that suit, John S. Perkins for plaintiff testified as to conversations between him and his counsel, Mr. Heitman, on one side, and Mr. Lucas, counsel for defendant, and Mr. Miller, its president, on the other side. He testified as follows:

"Q. State what was said by Mr. Lucas and Mr. Miller with reference to the right of way. A. Of course, I was introduced first, and Mr. Heitman said we came over in regard to that matter, and I don't remember all that was said; bat Mr. Lucas says, 'We are entitled to 50 feet. I says, 'Well, if you take 50 feet you ruin the balance of our lot; it does not leave us any frontage; and we would want pay for all of

a little bit, and he said to Mr. Miller that we recollection is that Mr. Miller decided that 20 can get along all right with 20 feet, and my feet would be sufficient, and that was the final windup of it. I don't remember just exactly all that was said it has been a good while ago, but that was the final windup, and he decidedMr. White: We object to what was decided. Q. Just tell what was said. A. They said they would take the 20 feet, and agreed on the price. Q. What were they to pay for it? A. $600, and pay the court costs. claim to own Q. Did they at any time Mr. White: I make the same objection as made or occupy more than 20 feet? to the principal question, and for the same reason. (Objection overruled. To which ruling and action of the court the defendant then and there at the time duly excepted and still except.) A. No, sir; they never claimed any. Q. Did they at any time afterwards, up to the time you sold it, make any claim to more than 20 feet? A. No, sir."

On cross-examination the following occurred:

"Q. The suit had already been filed? A. It had been filed virtually by agreement between the parties that that was all that they would need. It was a friendly suit."

In reference to that matter Mr. Lucas testified:

"Q. You bought a right of way from the Perkins in those negotiations? A. Did what? Q. Bought a right of way? A. No, sir; I bought peace. I had a right of way, but I bought peace; just as I have done for 20 years in railroad litigation. They claimed adversely, and I purchased my peace in the matter of these people. Q. You purchased what they were claiming? A. I purchased whatever rights they were asserting there at that time. Q. Did you assert at that time any rights to any more than you purchased? A. I don't recall whether I made any statement about any rights more than I purchased or not; for I don't recall the conversation. I have got only a faint impression in my mind that somebody introduced me to Mr. Perkins, and I don't recall now whether I ever saw him more than that once. Q. The right of way you did pay for was 10 feet on each side of the center line? A. I would not be able to tell you that. The pleadings would show whatever that was. Q. Wasn't the matter of the width of the right of way taken up at that time by you and Mr. Heitman and Mr. Perkins, and didn't they offer you whatever you were willing to pay for, and you said that was all you needed was what your track occupied, and that was all you wanted? A. I would be unable to answer about that conversation, because my mind is indistinct about it. If some circumstance was recalled I might remember what the conversation was, but I will say in a general way, of course, I wouldn't attempt to conclude my company's right by any negotiations for any less from Mr. Perkins, who was insisting he had a right there. I don't remember what the defense was that I believed I had; whether I claimed to have a deed or by virtue fresh my recollection by the files in the Perof condemnation. If it is important, I can rekins Case, but, in any event, whatever I did there was simply to buy peace."

In 1904 the defendant again used 25 feet on each side of the center of its road to pile material and to get dirt for the repair of its track. On March 5, 1905, plaintiff obtained a warranty deed from the widow and heirs of Stephen Perkins for the lots subject to a right each side of the center of its track. of way for defendant's road 10 feet wide on The right of way was never fenced from the bal

John H. Lucas and Halbert H. McCluer, both of Kansas City, for appellant. McCune, Harding, Brown & Murphy and Spencer F. Harris, all of Kansas City, for respondent.

ROY, C. (after stating the facts as above). [1] I. Objections were made to several of the deeds introduced in evidence by plaintiff in the chain of title to the Cases. We shall not consider the merits of those objections. The Cases are the common source of title. To constitute a common source of title, it is not necessary that both parties should have a good title from the common source. That would be impossible. All that is necessary is that both parties claim under the common source. The deed for the right of way from the Cases made in 1873 described the lots as Nos. 102, 103, 104, and 178. There was no lot numbered 178. Immediately after the making of that deed the road was graded through lots 101, 102, 103, and 104. There is no doubt that lot 101 was intended instead of lot 178. Possession for the purpose of grading the track was undoubtedly taken under the Cases and because of that deed for the right of way. That makes a common source of title which cannot be impeached by defendant except by showing a title superior to that of the common source. Miller v. Hardin, 64 Mo. 545; Feller v. Lee, 225 Mo. 319, 124 S. W. 1129.

[2] II. Appellants insist that the deed made jointly by the assignee in bankruptcy and by the substituted trustee under the deed of trust to Stephen Perkins was improperly admitted in evidence. The objection to the deed was that it was "incompetent, irrelevant, and immaterial, because it is not shown that the parties had any power to make the deed." The deed recites that it was sold under an order of the court in bankruptcy and under the provisions of the deed of trust. It also recites that the sale was approved by the court. There was no objection on the ground that the orders of the court were not shown in evidence. We hold that the objection was properly overruled.

[3] III. The fact that the sheriff was appointed as a substitute trustee under the deed of trust on an ex parte application of the beneficiary in the deed of trust does not invalidate such appointment.

Sections 1 and 2, Rev. Stat. 1855, pp. 1554, 1555, provide for the appointment of the sheriff as such substitute trustee on the application of the beneficiary in a deed of trust. By the act of February 2, 1872 (Laws 1872, p. 67, § 1), it was provided that on such application the court should appoint "the sheriff or some other suitable person of the

"No notice of such application is necessary; none is required by the statute. The proceeding is ex parte, and upon affidavit only; and, by the provisions of the statute in force at the time the substitution in the present case was made, the appointment to be made by the court, as, no question could arise as to the propriety of under that statute, no other person than the sheriff of the county could be appointed."

In Thompson v. Foerstel, 10 App. 290, the appointment of a person other than the sheriff was upheld. In Hitch v. Stonebraker, 125 Mo. loc. cit. 138, 28 S. W. 443, this court said that such statute was in derogation of the common law, and should be strictly construed. In Tatum v. Holliday, 59 Mo. 422, and in State ex rel. v. Griffith, 63 Mo. 545, it was held that a sheriff, acting under such statutory appointment, does so officially. His bond as such sheriff secures his faithful discharge of the duties of such trustee. We are not deciding as to whether the court can appoint "some other suitable person," but we do hold that the appointment of the sheriff on such ex parte application is valid.

[4] IV. The deed by the assignee in bankruptcy and the substitute trustee under the deed of trust was withheld from record from its date, June 18, 1877 until June 22, 1891. Appellant's brief contains the following: "In the time intervening the Kansas City & Southeastern Railway Company purchased the property, took possession, completed the road, and expended a large sum of money in so doing, and had operated the road for about four years. Respondent's grantor, having withheld his deed purchase and improvement of the property by from record and stood by and witnessed the appellant's grantor, cannot now make claim against appellant."

When the Kansas City & Southeastern got its deed to the road on January 28, 1887, these lots, including the right of way, were inclosed with a fence, and were in the possession of Stephen Perkins.

"He who buys a piece of property in the open and visible possession of a third person is chargeable with notice of the title and right of that person in the premises." Wiggenhorn v. Daniels, 149 Mo. loc. cit. 165, 50 S. W. 808; Squires v. Kimball, 208 Mo. loc. cit. 119, 106 S. W. 502.

[5] The defendant and all those under whom it claims were at all times affected with constructive notice by the record that the legal title to the lots was outstanding in the trustee under the deed of trust in which Doggett was named as trustee. As between the trustee and Stephen Perkins that legal title passed by the foreclosure sale. The purchase of the equity of redemption after the foreclosure and before the recording of the foreclosure deed without notice of such foreclosure to the purchaser of the equity would not have the effect of entirely avoiding that sale as between the purchaser of the equity and the purchaser under the foreclosure. At most, such failure to record would only let in the purchaser of the equity

[6] V. We thus find, as a result of the foregoing conclusions, that the record title to the land in controversy is in the plaintiff, and the question remains as to whether defendant has acquired title by adverse possession. The evidence does not show at what time in the year 1887 the track was constructed across the lots. On August 30, 1897, the Perkins suit against this defendant was instituted. It does not appear that ten years had intervened since the track was constructed. The witnesses Heitman and John S. Perkins for plaintiff testified that such suit was filed under an arrangement by which it was agreed that 20 feet was all defendant wanted for its right of way. Mr. Lucas, witness for defendant, disclaimed being able to remember what was said in that conversation. We are justified in finding that such suit was brought under such agreement. Such being the case, the defendant was not on August 30, 1897, asserting any claim to the land in controversy, but had yielded such claim. It had not prior to that time acquired title by adverse possession, because there is a lack of evidence to show that ten years had then expired since the track was built. One who asserts title by adverse possession has the burden of proving it. Hulsey v. Wood, 55 Mo. 252.

[7] VI. Defendant having on August 30, 1897, ceased to make any claim to the land in controversy, whatever right it may have by adverse possession must have accrued since that date. The possession under claim of right must have been continuous. Possession under a claim of right since 1897 cannot be tacked onto such possession under claim of right prior to 1897 because of the break in the claim.

We therefore inquire whether, since 1897, the defendant has had the continuous adverse possession of the land in dispute under a claim of right.

[8] The judgment in the Perkins Case is res judicata against the defendant on the proposition that defendant was not, at the date of the institution of that suit, the owner of the 20-foot strip either by paper title or by adverse possession. The evidence in this case does not show whether the deeds in defendant's chain of title were in evidence in that case. They were proper evidence, and might have been introduced in that case to show defendant's title to the 20-foot strip.

[9] The court adjudged in the Perkins Case that the deeds under which defendant claims did not constitute title to the 20-foot right of way. That judgment itself decreed the title to that strip to defendant in consideration of the $600 damages adjudged to the plaintiffs therein. Since that decree defendant has not held that right of way under any color of title, but under an actual title; i. e., that judgment. The defendant certainly does not hold actual adverse possession of the 20-foot strip under color of title to the whole 50 feet. In Crispen v. Hannavan, 50 Mo. loc. cit. 544, it was said:

"Ordinarily the possession of one who does land in actual occupancy. The owner, who holds not hold the true title can extend only to the constructive possession of all lands not actually occupied by others, cannot be disseised by a mere claim. There must be something more. In addition to the actual occupancy of a partthe open, notorious, and continuous possession as owner-there must be a claim to the whole, by the same right under which the part actually fide and evidenced by some paper or proceeding occupied is held, and such claim must be bona or relation that makes the claimant the apparent owner of the whole. Fugate v. Pierce, 49 Mo. 441."

[10] After the decree in the Perkins Case the plaintiff's deeds did not constitute color of title to the land in controversy. A claim of right under color of title includes good faith, and good faith is destroyed when the color of title is adjudged worthless as between the parties. Scholl v. Coal Co., 139 Ill. 21, 28 N. E. 748; Hintrager v. Smith, 89 Iowa, 270, 56 N. W. 456.

[11] Appellant claims that, under the authority of Hargis v. Railroad, 100 Mo. 210, 13 S. W. 680, it will be presumed that defendant's possession extended to the full statutory width of 100 feet. That case says that such is the presumption where there is nothing appearing to the contrary. In this case defendant does not even claim 100 feet, and its actual possession is confined to the 20-foot strip decreed to it by the court. It has no color of title outside the 20-foot strip.

There are numerous other questions raised in the briefs of counsel, but the propositions above announced are decisive of the matters

involved.

The judgment is affirmed.

WILLIAMS, C., concurs.

PER CURIAM. The foregoing opinion of ROY, C., is adopted as the opinion of the court.