Appellants have summarized the pleadings and evidence substantially as follows:
This is an appeal from a decree of the circuit court in a suit to determine title to lands. The first count of
The prayer is that the court set aside and hold for naught said sheriff’s deed, and to determine title, and for all proper relief, as provided by Section 1970, Revised Statutes 1919.
To the second count defendants answered, admitting possession and denying any ownership in plaintiff ; admitting that Mafilda Kinney acquired title to a part of the land by virtue of a sale in a suit for taxes, but that defendants acquired such tax title as innocent purchasers for value without knowledge of any defect in her title; pleading the ten-year, twenty-four year and the thirty-year' limitation, and payment of taxes therefor by defendants, and failure of plaintiff to pay any such; valuable improvements as occupying claimant; pleading also that the surplus money proceeds of the tax-suit sale of the land was claimed Toy Joseph B. Kin
The cause was heard by the court at the September term, 1917, and taken under advisement. At the September term, 1919, judgment was rendered setting aside and holding void the sheriff’s deed on the tax-judgment sale, and adjudging the plaintiff to be the' owner in fee of and entitled to the possession of 5214/6300 undivided part of two tracts of land, one originally containing 101.60 acres and the other 38.93 acres, and 5214/6300 of an undivided one-half of another tract of 4 % acres, all in Township 50, Range 29, Jackson County.
The tract described in the petition and judgment as the southwest fractional part .of the southwest quarter of Section. 5, originally containing 38.93 acres, appellants designate as “Tract A,” and that described as all of the southeast fractional quarter of Section 6, originally containing 101.60 acres, as “Tract B,” and that described by metes and bounds, containing 4% acres, as “Tract C.” This tract adjoins Tract B at the northwest corner. (Mrs. Mathews also owned an undivided one-half in fee of Tract C at the time the mortgage, at number 12 of the abstract of title infra, was executed.)
The lands sold in the proceeding for delinquent taxes are Tract A and the west eight acres of Tract B. The Missouri River is the northern boundary of each tract.
The abstract of title shows the following transfers: ■ Tract A:
1. Sept. 7, 18^8. Patent, Ik. S. to Joseph Roy.
2. Aug. 21, 1847. Warranty deed recorded Book M, page 411, Joseph Roy and wife to Celia F. Robinson (afterward Cushenbury) and Fannie A. D. Cogswell (afterward Mathews, mother of plaintiff).
“Also our undivided interest in a fractional piece of land deeded by Joseph F. Roy to Celia F. and Fannie A. D. Cogswell, now Celia F. Cushenbury and F. A. D. Mathews, it being a part of the S. W. y% of the S. W. of Sec. 5, Twp. 50, Range 29.”
The certificate of acknowledgment of the female grantors to this deed is as follows:
. “Being by me made acquainted with the contents of said deed, acknowledged on an examination apart from their respective husbands, and they executed and delivered the said deed freely and without compulsion of their said respective husbands.”
On the offer of this instrument in evidence, defendants objected because the description was insufficient to identify Tract A, and the acknowledgment did not recite that the married women had declared they executed “freely and without compulsion or undue influence” of their husbands.
4. Oct. 29, 1857. Warranty deed, Book 27, page 46, William Cogswell and wife to F. A. D. Mathews, the granting clause being as follows:
“Bargain, sell and convey to the said F. A. D. Mathews and all her children she has now or ever may have the following described tract of land, to-wit: ’ ’ (Here follows description of Tract A).
The habendum clause reads:
“To have and to hold the same unto the said F. A. D. Mathews and her children as aforesaid and their heirs, but it is to be distinctly understood if the said F. A. D. Mathews may hereafter conclude', to sell the above dedescribed tract of land she is hereby empowered and authorized to do so by arranging it so that the proceeds of said land is to be laid out for other lands or property to
5. June 1,1868. Patent, U. S. to William Cogswell, contaning 101.60 acres.
6. April, 1856. Warranty deed recorded Book Y. page 532, William Co.gswell and wife to Fanny D. Mathews. The granting and habendum clauses are the same in this deed as in number 4 supra.
Tract C: 4% acre tract described by metes and bounds (approximately 15 poles E. and W. by 42 poles N.- and S.) in and out of the N. E. corner of New Madrid Claim Survey at N. W. corner of Tract B.
7. 8 and 9 are transfers which bring the title down to Jonathan Colcord.
10. Aug. 9,1850. Warranty deed, Book P, page 477. Jonathan Colcord and wife to F. A. D. Cogswell and Celia F. Cuisenbery, daughters of Wm. Cogswell.
11. June 1856. Deed Book Y, page 528, Celia F. Cushenbury and husband, Daniel, conveying undivided interest of grantor in Tract C to Fanny A. D. Mathews. (The granting and habendum clauses are the same as in number 4.)
12. July 14, 1866. Mortgage with power of sale, Book 46, page 497, filed September 16, 1866, Fanny A. D. Mathews and her husband to Joseph Kinney, conveying among others, Tracts A, B and 0. This mortgage recites that it is given to secure a note for $7280, due at twelve months, with the usual power of sale. ■
13. May 15, 1871. Mortgagee’s deed, Book 89, page 41, Joseph Kinney, mortgagee, to Joseph Beeler Kinney. This forecloses number 12.
14. Suit was brought by the State ex rel. Daniel Murphy, Collector, against Joseph B. Kinney, James P. Mathews and Fanny A. D. Mathews, his wife, Porter H. Mathews, Andrew R. Mathews and Mary Eliza Mathews, a minor, to the March term, 1880, of the circuit court, to enforce the State’s lien for taxes on Tracts A
On March 27, 1880, judgment was rendered as prayed, adjudging the amount of taxes, interest and fees on Tract A at $111.96, and on Tract B at $373.42, total $485.38.
Special execution was issued on this judgment, September 4,1880, and the sheriff sold all of Tract A for $410 and eight acres off the west side of Tract B for $480, to Matilda Kinney, out of which the sheriff paid the judgment and costs, and had remaining $245.68.
Thereupon the defendant J. B. Kinney filed his motion setting up that he was the absolute owner of the lands sold and was entitled, as against the other defendant’s to this surplus of sale proceeds, $245.68. Notice of this motion was given to Porter H. Mathews by posting in the dark’s office, and the motion was sustained by the court on September 29, 1881, Sheriff’s deed, dated October 25, 1880, recorded in Book 120, page 448.
15. Oct. 4, 1880. Warranty deed, Book 111, page 537, by James P. Mathews, Fannie A. D. Mathews and Andrew R. Mathews to Mary E. Mathews, conveying Tract A, 30. 93 acres; also Tract B, therein recited as 90 acres.
16, Dec. 14, 1882. Warranty deed, Book 130, page 143, consideration $3000, from J. B. Kinney, J. Kinney and Matilda Kinney, his wife, to Mary E. O’Donnell, conveying Tracts A, B and O, containing a recital as follows:
‘ ‘ Should at any time the title be imperfect, and the above Kinneys unable to make it perfect, then said Kinneys agree to refund all money paid in original purchase, upon condition that Mary E. O’Donnell deed the
17. Ang. 12, 1885. Warranty deed from Joseph B. Kinney and Alice P. Kinney, his wife, to Mary E. O’Donnell, Book 141, page 94, consideration $5 cash, conveying Tracts A and B. (This deed evidently was made to release dower of Joseph B. Kinney’s wife, Alice P).
18. Sept. 13, 1882. Mortgage deed of trust, Mary E. O’Donnell to Joseph B. Kinney, trustee, to secure note of $3000 due eight years after date, bearing eight per cent interest, to Joseph Kinney, mortgaging Tract B, recited to contain 80 acres.
19. April 25, 1892. Warranty deed, recorded, Book 186, page 367, Mary E. DeGarmo, formerly Mary E. O’Donnell, and husband Frank DeGarmo, to Michael H. O’Donnell, Daniel C. O’Donnell, Richard M. O’Donnell and Mounnie D. O’Donnell, consideration $6000, conveying Tracts A and B, subject to deed of trust from Mary E. O’Donnell to Joseph B. Kinney, which the second parties assume and agree to pay.
20. April 30, 1900. Warranty deed, Book 226, page 254, M. D. O’Donnell to Richard M. and Michael H. O’Donnell, conveying Tracts A and B and other lands.
21. Jan. 7, 1915. Warranty deed, Book 334, page 231, Daniel C. O’Donnell to Richard M. and Michael H. O’Donnell, conveying Tracts A, B and O.
J. B. Kinney, witness for plaintiff, by deposition testified on direct examination as follows:
My full name is Joseph Beeler Kinney; father’s name, Joseph Kinney; mother’s name, Matilda Kinney; witness born July 25, 1846; married in 1882; business, steamboating; father’s and mother’s home, Ivkich he called his home, was in Old Franklin, Howard County, Missouri; his mother died in 1896, his father two or three years previously. That he bought the land in question in this case at foreclosure sale under mortgage in which his father was mortgagee; could not remember when; did not remember what he paid; that he “left” Mathews stay on the place; he promised to keep up the
Mary DeGfarmo, witness for plaintiff, by deposition, testified: That her maiden name was Mary E. 0 ’Donnell, sister of Daniel, Richard, Mounnie and Michael O’Donnell; she was born November 3, 1861; knew Joseph Kinney, his wife Matilda, and son J. B. Kinney and his wife; she first met them at a farm near Franklin, Howard Conn
Porter Mathews, plaintiff, testified that he was the son of James P. Mathews and Fannie A. D. Mathews; that his father died November 28, 1898, his mother, August 22,1915, and that he was the only surviving child; that none of the other children ever married and none of them left any descendants; that he. was born in 1851 and left the farm in 1871; that he moved to California in 1883 and had lived there ever since; that immediately before that he was in Denver, Colorado, living there about a year and a half, and prior to that in Leádville about two years; that he had not lived in Missouri since 1878; in that year was at the old home place for a year; testified as to the buildings on the land in question; that the farm was under fence and some cross fenced; witness did not know about some of the property being sold for taxes at the time it was sold, but afterwards knew it was sold; on his asking what time it was sold and being told that it was some time in the year 1880, answered that he was in Colorado; that when witness was on the place in 1878, about fifty acres of the land was in timber; that when last on the place, about three months before the trial, he thought only about eight or ten acres was in-timber; and the other had been removed; that all of the place except the seven or eight acres in' timber was in cultivation when he was last on the place, and in 1878 it was all in cultivation except the fifty acres then in timber.
Joe Cogswell testified that the land in question seemed to be pretty good level land lying along the river; thought it not subject to overflow except at very high waters; used mostly for grain lands; that he had
Isaiah H. Johnson testified that he moved onto the land in question to occupy it in the latter part of August, 1881; that while living there he met Miss Mary O’Donnell in the summer of 1882; don’t remember having any conversation with her relative to the title; did have some talk with members of the O’Donnell family about 1882, probably a year after; this talk was with the O’Donnell father in the presence of the boys, Dan, Michael, Richard and Monty; thought they were all grown then except Monty, who was probably fifteen years old; this talk was after 1882 and was 'concerning that Mr. Mathews was claiming the place; that it was a common thing to hear that talked about in the neighborhood; that the litigation over the title was talked about in the neighborhood; J. B. Kinney told him in the spring of ‘82 that he had lawed Mr. Mathews for fourteen years; this conversation was while witness was occupying this place; the O’Donnells moved on the adjoining place in'the spring of ‘82, and on this land in question in the latter part of ‘82, by arrangement with the witness; described the buildings then on the place as a dwelling house, a store house and some old tumbledown other buildings; the farm was fenced; that the adjoining land rents for $10 an acre.
The testimony of B. F. Johnson was substantially the same.
For the defendants, M. D. O’Donnell testified that he is one of the grantees of the deed to the land in question, from his sister; that he was ten years old in 1882 and his brother Richard was twelve years old; that all of the boys were miuors with about two years difference between their ages; that he recollected going on
Defendants, introduced in evidence an agreement between the parties as to the children of Fannie A. D. Mathews and the dates of their births and deaths, as follows ;
Born Died
Porter H. Mathews (plaintiff)......April, 1851 ...................
Andrew R. Mathews .............May 19, 1853...............1908
Fannie J. Mathews ................Sept. 19, 1855.........April, 1873
Ellen Mathews ....................Jan. 3, 1859 Mar. 14, 1859
Mary E. Mathews ................April 25, 1862...............1906
Cecil C. Mathews ..................Aug. 8, 1865 .......Sept. 5, 1865
Sarah A. Mathews ................Aug. 30, 1867 ......April 27,1870
(None of the children left descendants.)
The husband of Mrs. Mathews, father of the children, died November 24, 1898.
Mrs. Mathews died August 22, 1915.
This is all the evidence. The defendants did not testify.
Bne:f' I. The appellants’ brief does not contain a statement of the facts in this case, as required by Rule 15. "We misfit dismiss the appeal for failure to complv with the rule, but prefer to dispose of the case on its merits.
. , , ,' ^ Acknowledgment. Appellants’ objection to this deed is that the certificate of acknowledgment omits the words “or undue influence. ’ ’ Revised Statutes 1855, chapter 32, section 39, page 363, requires the certificate of acknowledgment of a married woman shall set „ . , ,- , ,, r, forth “that she executed the same freely and without compulsion or undue influence of her husband.” The certificate recites that “they executed and delivered the said deed freely and without compulsion of their said respective husbands.” The law touching acknowledgments requires no more than a substantial compliance with its terms. [Chauvin v. Wagner, 18 Mo. 531; Hughes v. Morris, 110 Mo. 306; Alexander v. Merry, 9 Mo. 514.]
In Gross v. Watts, 206 Mo. 373, l. c. 393, it was held (syl. 4): “A certificate of acknowledgment is not defective because it does not recite that the deed was executed as the grantor’s 'free act and deed.’ The statute' requires it to state the 'act of acknowledgment’ and where the certificate recites,that the grantor 'duly acknowledged the execution of the same,’ it substantially complies with the statute.”
See also Ray v. Crouch, 10 Mo. App. 324; Hughes v. McDivitt, 102 Mo. 77; Huse v. Ames, 104 Mo. 91.
The identical question was ruled adversely to appellants’ contention in Bohan v. Casey, 5 Mo. App. 101, l. c. 110, where the court said: “It is complained that the notary did not ask the wife as to 'undue influence’ and to have asked her as to 'compuls’ion’ is not enough. But the notary asked her whether she executed the deed of her own free will or whether her husband compelled her to do it. To the former question she ré
The object of the law, as Scott, J., said in substance, is to obtain the free and unconstrained consent of the wife to the deed alienating her rights. If this is done, the law is satisfied. The law has entrusted the writing of deeds and the taking and certification of acknowledgments to officials unskilled in the drafting of forms. It is a task beyond their powers from the want of skill. Under such circumstances it would be hard in courts to exact a rigorous compliance with forms. Such a course would disturb a grfeat many titles, and that, too, in cases where no wrong has been done and where there had been entire acquiescence in the acts, conscious of their propriety, until the information of the technicality is found out by some prowling assignee, or some child who may make the mother who bore him sin in her grave. [Dissenting opinion in Chauvin v. "Wagner, 18 Mo. l. c. 556.] It is the policy of the law to construe them (certificates of acknowledgment of married women) liberally, and where a substantial compliance appears clearly and affirmatively, the certificate will be held sufficient, no matter what the language employed. [1 C. J. 858, sec. 209.]
In the instant case, Mrs. Mathews and her sister, owning the tract in common, conveyed it to their father who reconveyed the whole of it to Mrs. Mathews and her children as a settlement. She accepted and retained possession, claiming title under this deed, and was satisfied.
Descnption. III. I*t is also urged that the description in the deed, at number 3 of the abstract, is insufficient to identify Tract A, and that it is also bad “because it says our undivided interest” and did not under- ^ e0ILVey itself, and the words
“The office of a description is not to identify the land but to afford the means of identification, and when this is done it is sufficient. Generally, therefore, any description is sufficient by which the identity of the premises can be established, or which furnishes the means of identification. A conveyance is also good, if the description can be made certain within the terms of the instrument, for the maxim, Id certum est quod certum reddi potest, applies. So a description from which a surveyor can locate the land is good. A deed will not be held void for uncertainty of description if by any reasonable construction it can be made available. Extrinsic facts pointed out in the description may be resorted to to ascertain the land conveyed, and the property may be identified by extrinsic evidence, as in the case of records of the county where the land is situate.” [18 C. J. 180.]
“The property intended to be conveyed may be designated by the descriptive name of the tract by which it is generally known, or well known, or can be identified, or where there is no other tract of tire same name in that locality, even though there are defects in other parts of the description.” [18 C. J. 181. See also Bollinger County v. McDowell, 99 Mo. 632; Whitwell v. Spiker, 238 Mo. 629.]
The deed conveys “all our undivided interest,” meaning the undivided interQst of each grantor. Evidently the deed was written by an unskilled hand, yet the meaning is plain. The grantee took and retained
Remainder. IY. Did the several deeds conveying the three tracts “to Fannie A. D. Mathews and all her children she has now or ever may have” vest in Fanny a life estate with remainder in fee to her children? considering this question we should not overlook the habendum clause which is the same in each deed. If the parties understood that Mrs. Mathews took a fee simple estate, why did they give her the power to sell on condition that the proceeds should be invested in other lands to be conveyed'so as to put the title in her and her children?
Appellants are somewhat at sea. They contend that the deeds should be construed as either vesting a fee in Mrs. Mathews, or an' estate in common in her and her children, “the estate opening to let in each unborn child.” In Hamilton v. Pitcher, 53 Mo. 334, the deed was to M. W. Pitcher and her children. It was held that she and her children in esse took as tenants in common. The same ruling was made in the case of a devise in Allen v. Claybrook, 58 Mo. 124: [See, also, Hall v. Stephens, 65 Mo. 670.]
It is obvious that neither of these cases lends support to either of appellants’ contradictory constructions of the deeds in question. Here the grant is to Mrs. Mathews “and all her children she has now or ever may have.” If the grantor intended the children to take a present interest he doubtless would have expressed that purpose by naming them as grantees. The grant, however, has the indicia of a settlement. The habendum empowers her to sell the land, but expressly provides that in case of a sale “the proceeds shall be laid„ out for other lands or property to be conveyed so
In the annotations to Rice v. Klette, 149 Ky. 787, 149 S. W. 1019, L. R. A. 1917B, 45, where the cases are collated, the learned editor at page 65, says: “It has been held that if, in addition to the bequest, there are any superadded words which import a desire that the property shall be settled, the court will lay hold of the words and infer a gift to the parent for life, with remainder to the children.” Citing Holt v. Bowman, 33 Ga. Supp. 129, where a devise to a woman and her children was held to give the mother a life estate and the children a remainder in fee; and Re Bellasis, L. R. 12 Eq. (Eng.) 24 L. T. (N. S.) 466, 19 Week. Rep. 699, in which “an informal instrument creating a trust ‘for my niece Mrs. Chas. Milford and her children’ was held to create a trust for Mrs. Milford for life, with remainder to her children as joint tenants.”
On this question our court has spoken in no uncertain terms. In Garrett v. Wiltse, 252 Mo. 699, Lamm, J., conclusively answered the contention that the mother and children take as tenants in common under these deeds, and gives the sanction of his approval to the same ruling by Yalliant, J. At the foot of page 710, the learned jurist said: “Look at it from another viewpoint. As said, there were three children in being, born of Laura Alice by Richard, her husband, at the time of the Whitson deed. Now, in construing a deed it is sometimes worth while to take into account what the grantor would say but does not say as well as what he does say in getting at his intent. This grantor in making a conveyance on which, when spread of record, the world might act, named none of those children. If he desired them to take a present interest as tenants in common with their mother why did he not sav 'so and name them? Is that not the usual wav? Why,
It will be noticed that these rulings are based on Kinney v. Mathews, 69 Mo. 520. By referring to the opinion in that case, l. c. 524, it will also' be seen that Valliant and Lam:m:, JJ., adopted the argument of Napton, J.
After Kinney, on May 15, 1871, had purchased the three tracts of land involved in this action at the foreclosure of the mortgage given by Mrs'. Mathews and her husband to Joseph Kinney, he brought an action of ejectment, in July, 1876, against James P. Mathews. He did not claim that Mrs. Mathews owned the fee, but contended that the giving of the mortgage was a valid’ execution of the power of sale given her bv the deed from her father. The venue rvas changed to Livingston County. In the circuit court it was held that the power was special and limited, and did not empower her to excute the mortgage. On appeal this court considered the terms of the grant and the power to sell contained in these very deeds. Concerning the pow
After reviewing and distinguishing other eases, it was the judgment of the court that Mrs. Mathews had a life estate in the lands, which was vendible, with remainder in fee in her children; Henry, J., dissenting; Sherwood, J., expressing no opinion.
In the light of the foregoing authorities, we think it clear that the grants contained in the deeds in question manifest an intention to make a settlement and that Mrs. Mathews took a life estate only in the lands with a remainder in fee in her children.
Taxes'*1 V. Appellants complain that the court erred, in setting aside the sheriff’s deed, pursuant to the judgment for taxes. This sale includes Tract A and eight acres off of the west side of Tract B. The testimony shows very clearly that Mrs. Mathews and Kinney, the life ^enan^s) allowed the taxes to go delinquent for - the years 1869 to 1878. As we have seen, Joseph Kinney acquired the life estate of Mrs. Mathews at a foreclosure sale, May 15, 1871, and arranged for Mathews to remain on the land as his tenant. After the
The payment of the taxes was a charge upon the life estate. It was the duty of the life tenant to pay the taxes and protect the interests of the remainder-men. [Fountain v. Starbuck, 209 S. W. 900; Bone v. Tyrrell, 113 Mo. 175, 188, 20 S. W. 796.] The purchase of the land at the tax sale inured, to .the benefit of the remaindermen. [Peterson v. Larson, 225 S. W. 704.] It operated as a mere payment of the taxes. [First Congregational Church v. Terry, 130 Iowa, 513, 515; Blair v. Johnson, 215 Ill. 552, 557.] Kinney occupied a fiduciary relation to the remaindermen and was bound to exercise every reasonable precaution to preserve the property intact for transmission at the termination of the life estate. [Gibson v. Brown, 62 Ind. App. 460.] Not only Kenney, but all who took title from him with notice of the violation of the trust, were trustees ex maleficio. [Case v. Goodman, 250 Mo. 112.] Mary O’Donnell and her brothers had constructive notice from the deed records that J. B. Kinney had only the life estate of Mrs. Mathews. The tax deed informed them that the life tenants had suffered the land to go to sale for delinquent taxes which the law required them to pay. [Loring v. Groomer, 110 Mo. 632, l. c. 641.] But it further appears from the evidence that Marv O’Donnell was an intimate member of Kinney’s family, a clerical member; that she knew of the case in the Supreme Court, then of the
The condition of the title had been the subject of general neighborhood talk for many years.. It could not well have been otherwise, in view of the decision of this court in Kinney v. Mathews. Mathews, as we have seen, told Miss O’Donnell how the title stood. It was generally known that the children of Mrs. Mathews would be entitled to the land when their mother died. The testimony of the Johnsons is that this was discussed in the O’Donnell family when the defendants were present in the winter of 1882. They heard this testimony and did not take the witness stand.
“Courts of equity, since their earliest foundation, have always recognized that the still, small voice of suggestion, emanating as it will, from contiguous facts and surrounding circumstances, pregnant with inference and provocative of inquiry, is as potent to impart notice as a presidential proclamation or an army with banners.” [Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. 261, l. c. 292.]
nrterest?<1Uire<i YI. It is insisted by- appellants that the interests which Mrs. Mathews 'inherited from her deceased children subsequent to the execution of the mortgage, July 14, 1866, to Joseph Kinney, passed by viMue of Section 36, Chap. 32, p. 363, Eevised Statutes 1855, now Section 2266. Eevised Statutes 1919.
In Hendricks v. Musgrove, 183 Mo. 300, l. c. 309, it was said: “In addition to this the rule in this State is that the doctrine of after-acquired property does not apply to a married woman’s deed (at any rate if it was made pripr to 1889 when the Married Woman’s Act was passed), but that without regard to the form of the deed only whatever interest she had at the date of the deed passes. [Brawford v. Wolfe, 103 Mo. l. c. 397; Ford v. Unity Church Society, 120 Mo. l. c. 509.]”
This ruling was affirmed in Conrey v. Pratt, 248 Mo. 576, l. c. 583.
statute, begins to run against him until the life- estate is lifted. [Hall v. French, 165 Mo. 430; Bradley v. Goff, 243 Mo. 95, l. c. 102; Danciger v. Stone, 278 Mo. 19, 27.] Kinney and his grantees with notice, being trustees ex maleficio, the statute would not run in their favor. [Case v. Goodman, 250 Mo. 112, l. c. 115.]
Tax Sale: Money. , YIII. The claim that the order of the court sustaining Kinney’s motion directing the sheriff to pay over the surplus money in his hands arising from the . sale stops plaintiff to claim title to the land, is without any merit. It has been seen that Kinney occupied a fiduciary relation and was under obligation to pay the taxes and protect the estate of the remainderman against the very, proceeding he either instituted or allowed to be instituted for the avowed purpose of covinously defeating plaintiff’s title. He will not be permitted to profit by his own wrong. The law regards that proceeding simply as a payment of the taxes by the tenant whose life estate was bound for their payment. In that view, the court rightly ordered the surplus money paid over to him. Moreover, the order was made on a motion respecting a collateral question arising after judgment. It is a bar to a renewal of any claim to the surplus fund. It is not res adjudicata as to plaintiff’s claim of title to the land. [23 Cyc. 1224.]
The judgment is affirmed.