The case was heard in the circuit court as if a replication had been filed, denying the new matter in the answer, though none was in fact of record.
When parties have thus tried and submitted a cause it is too late to claim that there was no issue to try. It is unnecessary to extend reasons for this rule in view of the repeated decisions on the subject. Smith v. St. Joseph (1870), 45 Mo. 449; Henslee v. Cannefax, (1872), 49 Mo. 295; Howell v. Reynolds County (1872), 51 Mo. 154; Meader v. Malcolm (1883), 78 Mo. 550; Heath v. Goslin (1883), 80 Mo. 310.
II. There was no evidence justifying an inference that plaintiff had notice of any of the facts on which defendants’ supposed equitable title stated in the answer depends. Osborn conveyed the land to plaintiff in 1864 *511for $1,150, by deed of general warranty, and after-wards obtained from Brown (the patentee) the conveyance by which his (Osborn’s) warranty of title to plaintiff was made good. The testimony does not prove that he was acting as agent for plaintiff in so doing. He was, in fact, agent for defendant in respect to the land, and the mere fact of his procuring a conveyance of the legal title from Brown to plaintiff, in the circumstances here shown, does not establish such agency for plaintiff.
The deed by Brown to plaintiff was one of bargain and sale and contained a warranty to the grantee and his heirs “against the claim or claims of any person or persons whatsoever.” It operated to pass the record title of Brown to plaintiff, in the absence of any notice by the latter of any limitations on its apparent effect. Munson v. Ensor (1887), 94 Mo. 504. The deed of Fulkerson to defendant, in 1859, even were it entitled to be considered on the question of notice to plaintiff of defendant’s equity gives no intimation of any connection with, or relation to, the title of Brown.
We, therefore, see no sufficient reason for disturbing the finding, implied by the result reached in the trial court, that plaintiff was an innocent grantee so far as concerns any equities which defendants might have asserted against Brown.
III. The evidence respecting the acts and claims of plaintiff and defendant respectively to ownership by virtue of mere possession of the land, and as to the duration of such possession, was conflicting, and, as no instructions were given or refused on the subject, we cannot discern any error in the finding of the circuit court thereon. At least none has been made to affirmatively appear, as would be essential to a reversal of its judgment on that branch of the case.
We, therefore, agree to affirm it;
all the judges of this division concurring.