ON MOTION FOR REHEARING.
In the motion for rehearnig it is claimed that the court is-ih error in several important phases of the case.
*272^antee Tenant, *271I. It is said that Joseph B. Kinney acquired title May 15, 1871, at the foreclosure of the mortgage given by Fannie A. D. Mathews and her husband to Joseph *272Kinney, July 14, 1866, and that he did not get possession of the land until after the decision in the case of Kinney v. Mathews at the April terra, 1879.
Kinney testified: “I left Mathews stay there and kept telling him I did not want him to move off this place if he would only keep up the property, and he promised this and he promised that, and finally someone wrote me that he was tearing down á brick storehouse and selling the brick off the place, and I went down to look at it, and saw that he was just letting the property go down and was selling the brick from the storehouse. . . . I left him there for I don’t know how long, but he seemed -to be angry, mean and mad, and I sent a man down there and told him to get right off the place and if he didn’t get off to throw him off, and I put it in charge' of -some of the neighbors there.
“Q. Did you ever rent the pla.ce to anybody? A. I don’t recall it now. I remember I told these people to go on there and take care of the place and they could have all they made off of it; but if I leased it I cannot remember.” 1
The purport of this testimony is that Mathews bceame Kinney’s tenant in the year 1871.
Mrs. (Mathews, the life tenant, allowed the taxes to go delinquent for the years 1869 to 1879. The motion states that Mrs. Mathews was in possession of the land until Kinney got possession. It was improved, productive, farming land. When Kinney acquired his- title and possession he stepped into her shoes and into, the fiduciary relation she sustained to the remaindermen. It was’ the duty of the life tenant to pay the taxes. The payment of the taxes was a charge upon the life estate, no matter who owned it. The fact that the taxes were delinquent when Kinney acquired possesion is immaterial, whether it was at the time of the foreclosure in May, 1871, or at the end of the litigation in 1879.
*273Counsel cite authorities holding that it is not the duty of the life tenant of unimproved, unproductive land to pay the taxes.' That rule has no application here, as all the evidence show's this was productive farming land.
nf common. II. We have again gone over the case of Barkhoefer v. Barkhoefer, 204 S. W. 906. In that case the testator devised to the children of his son, Henry W. Barkhoefer, a tract of land, provided that the testator’s son, Henry W., have the use of the land during his life on certain named conditions. At the time the will was made, Henry had two children; a third was born after the death of the testator. It was held that the children in esse at the death of the testator took a vested interest as tenants in common, subject to their father’s life estate; “subject to open and let in after born children who came into being during the existence of the prior life estate.” The ruling is not in conflict with Kinney v. Mathews where the deeds in question were judicially construed, nor with the later cases cited in the opinion.
Acknowledgment. III. It is insisted that we have overlooked the real question involved in the defective acknowledgment to the deed at number 3 of the abstract, conveying the 39-acre tract, A, and have disregarded the majority opinion in Chauvin v. Wagner, 18 Mo. 531. The certificate recites that they (the married women) “executed and delivered the deed freely and without compulsion of their said respective husbands.” The objection is that the words “or undue •influence” were omitted, and 'exception is also taken to the quotation from the opinion of Scott, J., as not stating the law of the case.
It will be seen from the opinion of Gamble, J., at page 545, that the statute required the certificate to state that “the contents were made known and explained to her.” The certificate recited that Mrs. Chauvin was “made acquainted with the contents of the deed.” It *274was held that the statement that she was made acquainted with the contents of the deed was a substantial compliance with the statute.
The certificate was further required to state that “she does not wish to retract.” The court said: “She is to be examined as to whether the deed had been executed by her voluntarily, not whether she wished it to be in force as a conveyance. Still, if the acknowledgment which she is to make, Os to include her present wishes in relation to the deed, it must so appear.” [P. 548.]
It was held by the whole' court that it would have been superfluous to “make known and explain the contents of the deed” (although the statute required it) to one already acquainted therewith, but it was also held by two.of the judges that, as the law still gave Mrs. Chauvin a locus penitentiae, the failure to state that “she did not wish to retract” was fatal; Scott, J., dissenting.
We are asked to declare this deed, executed in the year 1856, and under which possession has ever since been held, void because of the omission of the words “or undue influence” in the certificate of acknowledgment. It is argued that there is a difference between compulsion and undue influence, and that the fact that she executed the deed freely and without compulsion is not a compliance with the law. There may be a shadowy distinction, but the law looks to the substance rather than the shadow.
The motion for rehearing is overruled.
All concur.