ON MOTION FOR REHEARING. Appellants ask a rehearing on several grounds, which we have carefully considered, and in light of which, we have again reviewed the whole record.
Appellants' reasons are included in three main contentions:
First: That the deed from the Bargain Realty Company to Dr. S.W. Scott was absolutely void; that no title to the land passed by it; and that, therefore, his position is the same as if he had gone into possession without a deed.
Second: That Dr. S.W. Scott was not in possession under color of title; that his right to the land could not be established by constructive possession following the deed but only by continuous, actual, adverse possession; and that the evidence does not show that his possession was continuous.
Third: That even though appellants were barred by limitation from recovery of the land, yet, since the stock certificate, which appellants received, was a written obligation to pay a definite sum of money in five years, appellants having brought this action in less than ten years, after the same matured, should be entitled to have this debt (par value of the stock) established as a vendor's lien on the land as the purchase price.
As to the first proposition: A deed procured by fraud will be set aside because fraud vitiates all contracts. [18 C.J. 227, sec. 147; Mentzer v. Mentzer, 30 S.W.2d 146; Wilkerson v. Wann, 322 Mo. 842, 16 S.W.2d 72; Summers v. Abernathy,234 Mo. 156, 136 S.W. 289; Derby v. Donahoe, 208 Mo. 684, 106 S.W. 632; Turner v. Turner, 44 Mo. 535.] A deed procured by fraud is ordinarily held voidable and the same is true of a deed procured by undue influence *Page 330 or duress. [18 C.J. 242, sec. 175.] Such a deed may be ratified. [18 C.J. 243, sec. 178; Wood v. Kansas City Home Tel. Co.,223 Mo. 537, 123 S.W. 6; Bray v. Haskins (Mo.), 229 S.W. 1074.] Undoubtedly, appellants could have ratified their deed had it been for any reason, to their advantage to do so. One who has been injured by fraud always has the right to accept the situation created by the fraud and seek to recover damages; or he may repudiate the transaction and recover the specific thing lost. [27 C.J. 18, 128; State ex rel. Cary v. Trimble (Mo.), 43 S.W.2d 1050.] Indeed, that is the right appellants, in effect, claim by the third contention above referred to. A deed which can be ratified, by the person who made it, ordinarily, is only voidable. Examples of deeds absolutely void are: Deeds made by one permanently incapacitated mentally (Hall v. Almond (Ga.), 137 S.E. 825; Vining v. Ramage (Mo.), 3 S.W.2d 721); forged deeds (18 C.J. 224, sec. 138; Neal v. Pickett (Tex.), 280 S.W. 748); deeds to which signature is fraudulently procured when grantor had no intention of signing a deed (Horvath v. Natl. Mortgage Co. (Mich.), 213 N.W. 202, holding this amounts to forgery). See, also, notes 14 A.L.R. 316, 56 A.L.R. 582; and deeds which have otherwise been procured by fraud without a valid delivery. [Pitts v. Sheriff, 108 Mo. 110, 18 S.W. 1071; Meador v. Ward (Mo.), 260 S.W. 107; Delaney v. Light (Mo.), 263 S.W. 813.]
However, we think that appellants must, in any event, fail on their second proposition. It may be noted here that the statute, Section 850, Revised Statutes 1929, bars recovery after ten yearsfrom the time when appellants were seized or possessed of thepremises. Appellants admit that they went out of possession when they conveyed the land to Dr. S.W. Scott. He immediately put men to work on it and thereafter rented it to Davidsons, the dairy people, who went into possession under him and used the entire tract for pasturing their cows. Appellants seek to avoid their failure to be in possession after that time or to disaffirm their transaction, within ten years, by the contention that there were times when Dr. S.W. Scott was not in actual possession of the land, and that at such times the appellants, being the true owners, must be considered to have been in constructive possession. This contention is based upon the contention that the deed to Dr. S.W. Scott was absolutely void; and that therefore constructive possession followed the title back to appellants (evidently without appellants knowledge, since they claimed no possession and paid no attention to the land during those years) whenever his actual possession ceased.
The cases of failure to show adverse possession cited by appellants, to-wit, Stone v. Perkins, 217 Mo. 602, 117 S.W. 720; Hays v. Pumphrey, 226 Mo. 119; Kingsolving v. Laswell Lbr. Co.,300 S.W. 506; Jamison v. Wells, 7 S.W.2d 347, are all cases where the acts of ownership were very slight. However, in the latter case, where *Page 331 plaintiff claimed under a void tax deed, on first appeal (250 S.W. 63), this court held much weaker evidence of adverse possession than that in this case was sufficient for the jury to make a finding of ten years continuous adverse possession. We also find in that opinion the following statement (7 S.W.2d l.c. 348):
"No more affirmative act of ownership can be asserted than the rental of the land by the plaintiff and the collection of the rents thereon. The inclosure of the same by fences at different times and the payment of taxes due on the land are, in addition to other more potential facts, persuasive evidence of actual possession. [Phillips v. Boughton, 270 Mo. 365, 193 S.W. 593; Stone v. Perkins, 217 Mo. 586, 117 S.W. 717.]"
While Dr. S.W. Scott said he did not remember which years the land was leased to the Davidsons, but would have to look it up to tell, he did claim that he was in possession either through his tenants or his employees at all times. There was also the evidence of Mrs. Davidson, of Mrs. S.W. Scott, of his foreman and of others who had been on the land. We think the evidence, instead of showing an abandonment of the land by Dr. S.W. Scott, shows that he was exercising extensive acts of ownership over it. It was shown that when the deed was delivered appellants moved off a real estate office which they had built on the land; that Dr. S.W. Scott immediately took possession and had the brush cleared and trees cut; that the Davidsons then rented it for cash rent for two or three years; that then it was rented at higher rental to a cattle man who also used it for pasture; that Dr. S.W. Scott then stopped renting it, and from 1916 to 1918 was improving it, at times employing a large force of men with several teams to quarry rock, fill ravines and grade it, to put it into condition for selling lots; that he had a "No Trespassing" sign on the land; that he built a barn on it, in which to keep the teams used; that his wife looked after it and paid bills for the work when he was away, and that after this work was done, the idea of selling lots was given up, the land was seeded, a new fence was built around it, and he again rented it to the Davidsons for pasture. During the course of this work he claims to have expended more than two thousand dollars. He not only did that, but in 1911 and 1913 he paid off the two mortgages against the land which, with the interest he paid, amounted to almost seven thousand dollars. It hardly seems reasonable that, after doing this, he abandoned it when it was clear of all encumbrances.
Dr. S.W. Scott also paid all the taxes due on the land, which averaged about one hundred dollars per year. He had an attorney examine the title and do what was necessary for "getting the title in shape" so a title company would guarantee it. The evidence was that the land was increasing in value, throughout the entire time, between the delivery of appellants' deed and the commencement of *Page 332 this suit. There is no evidence that really controverts his claim that he was in possession at all times. Appellants' evidence minimizes the improvements he claims to have made; shows that the building he put on the land was made of cheap material; shows that the old fence was down in many places before the new one was built (which, however, seems to have been when the improvements were being made); but does not show that appellants ever did anything to dispute his possession or to interfere in any way with what he was doing with the land until long after this suit was filed. Even when Dr. Annie Scott did take possession of the land, she did so under a deed which necessarily recognized the title of Dr. S.W. Scott because it was based on an attempt to convey his title under an execution sale. Under this evidence, we cannot say that the finding of the able and experienced chancellor, who heard it, that appellants were not seized or possessed of the premises within ten years before the commencement of this action (either actually or constructively) was unwarranted and should not be deferred to.
Nor can the third proposition of appellants be sustained. The powers of a court of equity are broad but they are limited to the cause of action and issues made by the pleadings. The power to give relief in addition to that prayed for means relief consistent with the suit tried. [21 C.J. 671, sec. 854; 10 R.C.L. 555, sec. 338; Spindle v. Hyde, 247 Mo. 32, 152 S.W. 10, 24; Black v. Early, 208 Mo. 281, l.c. 313, 106 S.W. 1014; Schneider v. Patton, 175 Mo. 684, 75 S.W. 155; Reed v. Bott, 100 Mo. 62, 12 S.W. 347, 14 S.W. 1089; 21 C.J. 682, sec. 858; Grafeman Dairy Co. v. Northwestern Bank, 315 Mo. 849, 288 S.W. 359; 21 C.J. 688, sec. 861; 10 R.C.L. 556, sec. 338; Reynolds v. Stockton,140 U.S. 254, 11 Sup. Ct. 773; 35 L. Ed. 474.] To grant the relief asked for would require a decree that appellants' deed was a valid conveyance of the title; that respondents are the owners of the land sued for, but still owe appellants for it, because the par value of the stock certificate was the purchase price; that it was an obligation of Dr. S.W. Scott (and the other incorporators) due in 1913, and was not paid; and that a lien for the amount of this obligation should be impressed on the land as a vendor's lien for the purchase price. Such relief could be granted only in a suit based on an affirmance of appellants' deed to Dr. S.W. Scott. The present suit is based on a disaffirmance of it. It would be based on a sale. This one is based on no sale. Such a suit would be upon the theory that appellants had elected to accept the conveyence as a valid transfer of title for which they received a valuable consideration, namely: the obligation of Dr. S.W. Scott (and the other incorporators) due in five years and enforceable as a partnership obligation. The present suit is upon the theory that appellants had repudiated the transaction and were entitled to recover the land *Page 333 because they got nothing of value for it. Appellants may have had the right to make a timely choice of remedies and proceed on either theory. It is well settled that they cannot proceed on both.
It is true that the statute, requiring suit to recover land to be brought within ten years after losing possession, is an arbitrary rule. It was within the power of the Legislature to make it eight years or fifteen years. That it was made ten years may work a hardship in this case and that is to be regretted. However, the Legislature did fix the period at ten years and this court has no power to change it.
The motion for rehearing is therefore overruled.