
    Ivy et al. v. Yancey et al., Appellants.
    
    Division Two,
    July 2, 1895.
    1. Practice: change of venue. Where an application for a change of venue was made by all of several defendants, the affidavit in support of it was properly made by one of them alone, and the order granting the change was valid, and it makes no difference, in such case, as to the 'other defendants, that the action was afterward dismissed as to the defendant making the affidavit.
    2. -: -: jurisdiction: estoppel. A defendant who answers after the transcript has reached the venue to which a change has been awarded, will be estopped to question the jurisdiction.
    3. Deed of Trust: grantor: adverse possession. The grantor in a deed of trust does not hold adversely to the trustee, unless he specifically repudiates the trust deed.
    4. -: -: -. The grantor in a deed of trust who remains in possession after a sale by the trustee does not hold adversely to the purchaser at the sale, where he does not specifically repudiate the trust deed.
    5. Adverse Possession: intent. Adverse possession is the act of holding possession against one having a superior right or title, under a claim of right to do so, and to constitute it there must first be an ouster of the real owner followed by actual possession by the adverse claimant, and second an intention on the part of the latter to oust the real owner and possess for himself.
    6. Appellate Practice: evidence: certified copy of deed. A judgment will not be reversed in the supreme court upon the ground alone that certified copies of conveyances were admitted in evidence instead of the originals.
    
      7. -: immaterial errors. Judgments will not be reversed on appeal because of errors which do not materially affect the merits of the action.
    8. - — : bill of exceptions- presumption. Reeitals in a deed not copied in the bill of exceptions will not be noticed on appeal. In such ease it will be presumed the deed was properly admitted in evidence.
    9. Offices and. Officers: sheriff: presumption. In the absence of any showing to the contrary, it will be presumed that a sheriff acted within the legitimate bounds of the duties of his office in making a sale of land and executing a deed therefor.
    10. Deed: deed of trust: presumption. Where a purchaser of land, on the same day he receives his deed, executes a deed of trust for the benefit of his grantor, it will be presumed that he executed the trust deed after the deed to him had been delivered.
    11. -: -: after acquired title. Where one executes a deed of trust to land to which he has no title and afterward acquires the title, such after acquired title will inure to the benefit of the grantee in the deed of trust.
    12. Ordinary Course of Business: presumption. It is a presumption of law that the usual and ordinary course of business has been pursued in business transactions.
    13. Mortgage: foreclosure: improvements. Upon foreclosure of a mortgage, all improvements made by the mortgagor will inure to the benefit of the mortgagee or purchaser at the foreclosure sale, in the absence of any provision in the mortgage that the mortgagor shall be allowed their value.
    
      Appeal from Iron Circuit Court. — Hon. James D. Eox, Judge.
    Ae firmed.
    
      Settle & Bugg and C. D. Yancey for appellant.
    (1) Upon this record it seems to be clear that the defendant acquired title to the property in dispute by limitation. Tiedeman on Real Property, p. 326, sec. 326; Bush v. White, 85 Mo. 339; Scruggs ,v. Scruggs., 43 Mo. 359; Musich v. Barney, 49 Mo. 464; Rogers v. Brown, 61 Mo. loe. cit. 159; 4 Kent's Com. [Ed. 1868], top page 186, side page 187, side page 190; 3 Washburn on Real Property [5 Ed.], p. 337; Lewis v. Schwenn, 93 Mo. 26. From July 27, 1875,to December 23,1890, defendant held the actual, visible, notorious and hostile, continuous and uninterrupted possession of the disputed premises and of the whole and every part thereof, exercised all of the usual acts of ownership over it, improved and cultivated it, and got off the crops; acknowledged subservient relationship to none, in writing or otherwise, and acquired a good title as against the plaintiffs and against all the world. Dally v. Snuffer, 57 Mo. 284; Middlesex Co. v. Lane, 149 Mass. 101; Finn v. Land Co., 72 Wis. 546. All this was well known to plaintiffs when they bought. Gardner v. Terry, 99 Mo. 523; Key v. Jennings, 66 Mo. 367; Bushv. White, supra, loe. cit. 359, 360; Pall v. McFlroy, 36 Cal. 277; Williamson v. Brown, 15 N. Y. 354. (2) The court erred in the admission of evidence offered by the plaintiff against the objection of the defendant at the time. The first offering was a copy of a deed from Pettit and wife to defendant Yancey, dated January 30, 1870. Defendant objected to this copy for the reasons that no sufficient foundation had been laid for the introduction of a copy; that it was not shown that the original was either lost or destroyed, or that it was not in the possession or within the control of plaintiffs. The admission of the copies without accounting for the nonproduction of the originals, and over defendants’ objection, was palpable error. Strain v. Murphy, 49 Mo. 337; Farrell v. Brennan, 32 Mo. 328; Carr v. Carr, 36 Mo. 408; Greenleaf on Evid., secs. 82, 84. (3) The circuit court of Iron county had no jurisdiction of the subject-matter of this action. The application for change of venue was sworn to by the defendant, James Wilhite, alone. He had no power or authority to change the venue for the other defendants, as it nowhere appears that they engaged him to do their swearing for them. In the Matter of Whitson’s Estate, 89 Mo. 58; Euthsing v. Mans, 36 Mo. 101; Norvell v. Porter, 62 Mo. 310; R. S. 1889, sec. 2261. Jurisdiction of the subject-matter could not be conferred by consent. Bray v. Marshall, 66 Mo. 122. There was no order changing the venue. R. S. 1889, secs. 2263, 2265.
    
      M. B. Smith and John E. Baney for respondents.
    (1) The foundation for the introduction of the certified copy of the warranty deed from Lee M. Pettit and wife to Joel Yancey, appellant herein, dated January 31, 1870, was regarded by the trial court as sufficient to admit the copy over the objections of the appellant. R. S., 1889, sec. 2428; Gilbert v. Boyd, 25 Mo. 27; Pierce v. Georges, 103 Mo. 543, and authorities cited. Evidence having been introdoced to lay the foundation for the introduction of the copy, the finding of the court stands as against appellant. Eamilton v. Boggess, 63 Mo. 251 (bottom of page); Gaines v. Fender, 82 Mo. 509. As to the introduction of the certified copy of the deed of trust from appellant and wife to Greorge W. Creath, trustee, dated July 24, 1883, foreclosed by advertising, see following authorities: R. S. 1889, sec. 4957 and sec. 7079; Eammond v. Johnston, 93 Mo. 207, 208. The certified copy of the warranty deed from Wm. T. Leeper and wife to Lucinda Yancey, dated June 12, 1883, and recorded March 31, 1884, was improperly admitted, but it was wholly immaterial, and not necessary to respondent’s case, and therefore the error of its admission was harmless. R. S. 1889, secs. 2100, 2303; McDearmott v. Claas, 104 Mo. 22; Young v. Eudson, 99 Mo. 106; Griffith v. Bail-road, 98 Mo. 175; Osarle, etc., Go. v. Eays, 105 Mo. 153. (2) The trustee’s deed to respondents was sufficient to vest the title in them, and it did; and it was not necessary for them to show that Lucinda Yancey had title when she made the deed of trust that was foreclosed°by George T. Lee, the trustee therein, whose deed they obtained. Springfield Engine, etc., Go. v. Donovan, 120 Mo. 427; Kennedy v. Siemers, 120 Mo. 86; Schanewerk v. Eoberecht, 117 Mo. 29, 30; 2 Perry on Trusts [4 Ed.], sec. 602. The trustee’s deed made by William Warmick June 2, 1883, and recorded on the same day, as trustee, is regular in form, and conveyed all the right, title and interest that appellant had in and to the land in dispute. This trustee’s deed was an original instrument, and appellant’s objection as to it was properly overruled. Springfield Engine, etc., Go. v. Donovan, 120 Mo. 427; Schanewerk v. Eoberecht, 117 Mo. 29, et seq. Recitals in trustee’s deeds prima facie evidence of their truth. R. S. 1889, sec. 7103. (3) Respondents claim that the first point in appellant’s brief is not well taken; that the statute of limitations constitutes no bar, and that the judgment of the lower court ought to be affirmed. Leivis v. Schwenn, 93 Mo. 26; 1 Jones on Mortgages, sec. 672; St. Louis v. Priest, 103 Mo. 665; Gardner v. Terry, 99 Mo. 523; Booker v. Armstrong, 93 Mo. 49; Combs v. Goldsworthy, 109 Mo. 160; Chouteau v. Biddle, 110 Mo. 372. (4) The affidavit to the application for change of venue was sufficient in every particular, and the order made granting the same was also sufficient. R. S. 1889, sec. 2260; Norvell v. Porter, 62 Mo. 312; Clements v. Greenwell, 40 Mo. 594; Squires v. Chillicothe, 89 Mo. 232; Mix v. Kepner, 81 Mo. 95; State v. Knight, 61 Mo. 374.
   Sherwood, J.

Ejectment for land in Wayne county, begun December 22, 1890; change of venue to Iron, county on application of defendants. On its arrival there, a trial occurred, resulting in a judgment for plaintiffs and defendant Joel Yancey appealed to this court.

I. The application for the change of venue having been made on notice by all of the defendants and on application by all of the defendants, and sworn to by Wilhite, one of their number, on behalf of all of them, the application was a valid one and the order of the circuit court of Wayne county based thereon was a valid order and transferred the case to the Iron county circuit court. Besides, after the transcript reached the venue to which it had been ordered, defendants Mattie Yancey and Jennie Sullivan appeared and filed their separate amended answer to the petition; then Joel Yancey did the.like, then Joel Yancey appeared again and with his codefendant Wilhite filed another separate amended answer.

By these occurrences the defendants thus appearing submitted themselves to the jurisdiction of the court, and can not now question such jurisdiction. Baisley v. Baisley, 113 Mo. 544. And the subsequent dismissal by plaintiffs of the suit as to Wilhite, did not defeat the jurisdiction previously acquired as to the other defendants. The conveyances introduced in evidence by plaintiffs are as follow:

Certified copy of a warranty deed — Lee M. Pettit and wife to Joel Yancey, made January 31, 1870, recorded February 26, 1870.

Certified copy of deed of trust — Joel Yancey and wife to Geo. W. Creath, trustee, and A. A. Duncan, curator of Willie N. Steele, minor, beneficiary, made July 24, 1873, recorded August 13, 1873.

Original trustee’s deed — Wm. Warmick, sheriff, acting as trustee to Wm. T. Deeper, made June 2, 1883, recorded June 2, 1883.

Certified copy of warranty deed — Wm. T. Deeper and wife to Lucinda Yancey, made June 13, 1883, recorded March. 31, 1884.

Original deed of trust — Lucinda Yancey and husband to George T. Lee, trustee, and William T. Leeper, beneficiary, made June 13, 1883, recorded February 18, 1884.

, Original trustee’s deed — George T. Lee, trustee, to P. O. Ivy and O. A. Bennett, made September 6, 1890, recorded September 6, 1890.

II. On the trial Joel Yancey admitted that he went into possession of the land in suit a short time after he bought the land of Pettit; that he obtained the title to the land from Pettit, and that he still held possession under that title. The note which he gave in 1873 he secured by a deed of trust on that land; that note fell due in 1875, and on the second of June, 1883, the note and interest being unpaid, a sale occurred under the deed of trust, and Leeper became the purchaser and received on the same day a deed for the land, which sale and deed swept away whatever title Joel Yancey had in and to that land and transferred it to Leeper.

And while Yancey remained in possession under the trustee, he did not hold adversely to the trustee before the sale, and after the sale he will be presumed to hold in subordination to the title of the purchaser, and consequently the statute of limitations did not run in favor of defendant Yancey, and could not have done so, unless he had by his acts and declarations repudiated the deed of trust, and thus converted his subordinate holding into one adverse to his creditor; but nothing of the kind occurred. 1 Jones, Mortg. [4Ed.], secs. 672, 703; Gardner v. Terry, 99 Mo. 523; Booker v. Armstrong, 93 Mo. 49; St. Louis v. Priest, 103 Mo. 652; Chouteau v. Riddle, 110 Mo. 366.

III. The other mesne conveyances already set forth transferred the title and vested it in plaintiffs and this suit was brought in 1890, less than ten years after the first sale under the deed of trust. There was no adverse possession of the land after the first sale under the the deed of trust, because that sort of possession is defined to be: “Adverse possession is the act of holding possession and claiming the right to do so, against onehaving a superior right or title. Two things, it is said, must occur: ‘First, an ouster of the real owner, followed by an actual possession by the adverse claimant; and, second, an intention on the part of the latter to so oust the owner and possess for himself.’ Sedg. & Wait, Trials, see. 729; Davis v. Bowmar, 55 Miss. 765.”

IY. As to the certified copies of certain conveyances being read in evidence, instead of the originals, it does not appear in one or two instances whether the originals were within the control of plaintiffs, and as to the other instances we have ruled that we will not reverse a judgment on the ground alone of this error. Smiley v. Cockrell, 92 Mo. loc. cit. 113.

We are forbidden to reverse a judgment except for errors which materially affect the merits of the action. R. S. 1889, sections 2100, 2303; Garth v. Caldwell, 72 Mo. loc. cit. 628; Alexander v. Campbell, 74 Mo. loc. cit. 145; Kirkpatrick v. Railroad, 86 Mo. loc. cit. 347; Young v. Glasscock, 79 Mo. loc. cit. 580; Miller v. Graham’s Adm’r, 41 Mo. 509, and many other cases.

Y. a. As to the deed to Leeper made by War-mick, sheriff, acting as trustee, the deed is not copied in the bill of exceptions and its recitals can not be noticed. State v. Griffin, 98 Mo. loc. cit. 675. This being the case it will be presumed the circuit court ruled correctly as to the admission of the deed in evidence.

b. And in any event there was no necessity for showing that Warmickwas acting as sheriff of Wayne county when he made the deed to Leeper. Nothing to ■the contrary appearing, it will be presumed that the sheriff acted within the legitimate bounds of his duty, when he made the sale and executed the deed. To such lengths has the law proceeded in this favorable and conservative class of presumptions, that it will put a party who asserts the contrary of such presumption upon the proof of a negative; “for a person shall be presumed duly to execute his office till the contrary appear.” Lord Halifax case, Bull. N. P. 298, a. See, also, Long v. Joplin, etc., Co., 68 Mo. loc. cit. 431, and other cases there cited.

YI. a. It will be presumed, also, that Lucinda Yancey, the purchaser from Leeper on the thirteenth of June, 1883, and who made a deed of trust on the same day to Lee as trustee, for Leeper made the latter deed after the prior acquisition of title to the land through and by means of the former deed; for this was the regular and ordinary course of business, and of such course of business the law always presumes. Fitzgerald v. Barker, 85 Mo. loc. cit. 21, 22 and cases cited.

b. But whether Lucinda Yancey was or was not the purchaser of the land before making the deed of trust, would not affect the proper conclusion to be reached herein, and this for the reason: That if she executed the deed of trust before she received her deed from Leeper, her subsequent acquisition of the title would inure to the benefit of the beneficiary in the deed of trust she had previously made. 1 Jones, Mortg. [4 Ed.] section 153 and cases cited. This court has also ruled the point the same way, but inasmuch as we have no digest of our decisions in this state, the case containing the point is not readily accessible.

YII. The last point for examination is whether Joel Yancey was entitled, after judgment going against him, to have his claim allowed for improvements made by him on the land. But one answer can be returned to a question based on the foregoing facts. Unless provision be made in the mortgage for such allowance for improvements in a case of foreclosure, all improvements made will inure to the benefit of the mortgagee or purchaser at the foreclosure sale. 1 Jones, Mortg. sec. 681.

Finding no substantial error in the record, we affirm the judgment.

All concur.  