directing the sheriff to release Brooks from custody under both commitments, and that he be placed in charge of R. W. Williams and J. W. Ormsby, to whom he (Brooks) had been hired by the county court for the period of five months at $20 a month. Williams and Ormsby gave a bond of $200 for the payment of the stipulated wages for Brooks' services, and, as said, the jailer was ordered to put the prisoner in their charge. In making this order the county court assumed to act under the authority of section 1791 of the Revised Statutes of 1899, which reads as follows: "The county courts of the various counties of the state shall have the power to provide for the employment, under such rules and regulations and under such terms as they may prescribe, of all persons convicted of misdemeanor under the statutes of this state, and who may be sentenced to imprisonment in the county jail, or who may be committed to the county jail for non-payment of fine; and the amount so received for the services of such person so hired shall be applied upon the judgment against him." The jailer of the county released Brooks pursuant to the order of the county court, and turned him over to Williams and Ormsby. The so called hiring was a sham. From Brooks' petition for the writ of habeas corpus, it appears that he returned to his home, near Cabool, and near where Ormsby lived, and remained ready and willing to work for Ormsby and Williams at any time they might order him into service. The obvious purpose was to let Brooks pay $100 on his fines, instead of $250, the amount of them, and the county escape the expense of his imprisonment. The action of the county court was in effect a compromise with the prisoner. The prosecuting attorney of Texas county disputed the right of the county court to order the discharge of Brooks in the face of the commitments issued by a court of competent jurisdiction, commanding his imprisonment until he was entitled to be discharged by having served out his fines. Therefore the prosecuting attorney directed the sheriff to rearrest Brooks under the commitments in the sheriff's hands, and this was done, and Brooks returned to jail March 13th.

He thereupon petitioned the respondent, as judge of the county court, for a writ of habeas corpus, and this proceeding was instituted by the prosecuting attorney in order to have the records and proceedings in the habeas corpus matter sent here for review.

The position of the relator is that the county court acted without authority in ordering Brooks discharged in the first instance; that his rearrest and commitment to jail a second time were lawful and in obedience to the writs issued by the justice of the peace on the convictions for the two misdemeanors; and that respondent, as judge of the county court, had no jurisdiction or authority to discharge Brooks from the jailer's custody on a hearing of the habeas corpus proceeding. We are willing to grant the soundness

of all those propositions, except the last one. The respondent is the judge of a court of record, and, as such, has authority, in the vacation of his court, to issue writs of habeas corpus for persons alleged to be unlawfully restrained of their liberty, hear their applications for discharge, and decide them. Rev. St. 1899, § 3546. Now, as the respondent was empowered to issue the writ and decide on the right of the petitioner to a discharge, he was empowered to decide erroneously as well as rightly. In other words, his jurisdiction of the subject-matter of the particular case was complete. The doctrine prevails in this state that, if an inferior court grants the discharge of a prisoner in a habeas corpus proceeding when he is not entitled to be discharged, the decision is not subject to review by an appellate court, as it is in favor of personal liberty. Of course, if some magistrate or court should undertake to grant the writ when he or it had no jurisdiction to do so, the proceeding might be prohibited or perhaps reversed on certiorari. That is not the present case, however, for the judge of a county court in vacation may grant the writ. In some states the discharge of a prisoner may be reversed in a certiorari proceeding if it appears from the record, and without looking into the evidence, that the proceedings in the habeas corpus matter were irregular, or the court had no jurisdiction to issue the writ. People v. Cassels, 5 Hill (N. Y.) 164; United States v. Wyngall, Id. 17; Field v. Putman, 22 Ga. 93; Livingston v. Livingston, 24 Ga. 379. What may be done under the writ of certiorari in such a matter in this state never has been decided, to our knowledge. But the Supreme Court has decided that an erroneous discharge of a prisoner cannot be reversed on appeal or writ of error, and this was tantamount to deciding that it cannot be reversed on certiorari. The rule is that the decision of the tribunal where the case originated, if it was a tribunal enjoying jurisdiction of the cause, is allowed to stand, whether right or wrong. This subject was so thoroughly expounded in Ex parte Jilz, 64 Mo. 205, 27 Am. Rep. 218, that we need not do more than refer to that decision. We have no idea that the provisions of the statute under which the county court hired Brooks to Williams and Orinsby contemplated that such a hiring should entitle the prisoner to be released from the custody of the jailer, and exempt him from further punishment. If such a proceeding as the county court adopted in this instance is valid, that court practically exercises the pardoning power, and may remit fines and penalties. But we are concerned, not with the release of Brooks from custody pursuant to the order hiring him to Williams and Ormsby, but with his release by the writ of habeas corpus pursuant to the order of a judge who had authority in the premises. We cannot interfere with that decision.

This proceeding is therefore dismissed. All concur.

1. A recital in the abstract that during the term at which the judgment was rendered plaintiff was granted 90 days in which to file a bill of exceptions, and that afterwards, within the 90 days, the bill was signed and sealed, and at a later date, but also within the 90 days, was filed in vacation, is sufficient without setting forth the order of court showing leave to file the bill.

2. Under Rev. St. 1899, § 650, providing that any person claiming title to real property may institute an action against any person claiming an estate or interest therein, to ascertain and determine the estate and interest of the parties respectively, etc., it is not necessary for the plaintiff to establish an indefeasible title against the whole world, but only necessary to make a prima facie case as against the defendant.

3. An acknowledgment by the sheriff of the execution of a tax deed, which acknowledgment does not contain the name of and is not signed by the clerk, or the judge before whom the acknowledgment purports to have been taken, is irregular and defective.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 1528.]

4. A sheriff's deed, not acknowledged as required by law, is void.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 1528.]

5. In an action to quiet title, the introduction by plaintiff of a void sheriff's deed to defendant does not show title in the latter.

6. Where, in an action to quiet title, plaintiff proved that the record of deeds in the county where the land was located had been destroyed by fire, and that diligent search had been made without avail for the deeds constituting his chain of title, he was entitled to establish the existence of those deeds by parol.

7. In an action to quiet title, where defendant's only claim was under a void tax deed purporting to convey plaintiff's interest, proof that plaintiff was, at the time of the execution of the tax deed, holding the land under a duly recorded warranty deed, was sufficient to make a prima facie case against defendant.

8. The names "Graton" and "Grafton" are not idem sonans.

Appeal from Circuit Court, Wayne County; Frank R. Dearing, Judge.

Action by Henry Graton against the Holliday-Klotz Land & Lumber Company. Judgment for defendant, and plaintiff appeals. Reversed.

Lee W. Grant and Pierre B. Kennedy, for appellant. James F. Green and John H. Raney, for respondent.

GANTT, J. This is an appeal from the judgment of the circuit court of Wayne county. The action is brought under section 650, Rev. St. 1899.

The petition in substance states that the defendant is, and was at the times hereinafter mentioned, a corporation duly organized and existing according to law; that plaintiff is and has for a long time past been the owner in fee simple of the following real estate in Wayne county, of this state, to wit:

The southeast one-fourth, and the west onehalf of southeast one-fourth, of section thirty-four (34), township thirty (30), in range six (6), consisting of two hundred and forty (240) acres; that defendant claims to have some title, estate, or interest in said property adverse to the title and interest of this plaintiff. The prayer of the petition is that the court ascertain and determine the estate, title, and interest of the plaintiff and defendant herein, and by its judgment and decree define and adjudge the title, estate, and interest of plaintiff. The answer was a general denial, coupled with the averment that the title was well vested in the defendant. On February 3, 1902, judgment was entered dismissing plaintiff's bill. Within due time plaintiff filed a motion for a new trial, which was heard and overruled, and exceptions duly saved. Plaintiff was allowed 90 days from February 4, 1902, within which to file a bill of exceptions, and on the 29th of April, 1902, the bill of exceptions was filed.

At the outset the point is made by the respondent that the abstract is insufficient, because the order of the court showing the leave to file the bill of exceptions is not set forth in full, but that there is simply a recital thereof. The abstract recites that on February 4, 1902, and during the same term at which the judgment was rendered, plaintiff was granted 90 days in which to file a bill of exceptions, and that on April 25, 1902, the bill of exceptions was signed and sealed, and on April 29, 1902, was filed in vacation. This was sufficient under the rulings of this court in McDonald v. Hoover, 142 Mo. 484, 44 S. W. 334, and Ricketts v. Hart, 150 Mo. 64, 51 S. W. 825.

The circuit court, at the close of plaintiff's evidence, sustained a demurrer to the evidence, and dismissed the bill, and this action of the court presents the sole question for determination at this time. The unfortunate burning of the Wayne county courthouse, and of all the records of deeds, in 1892, places the plaintiff in a very awkward situation. Plaintiff offered and read in evidence a deed from H. M. Hedden and wife to plaintiff, conveying the land in question, in the ordinary form of a warranty deed. This deed was executed and acknowledged on the 4th day of January, 1895, before Re well E. Grow, a notary public within and for the county of Arapahoe, Colo. This deed was duly filed for record on the 7th of January, 1895, in the recorder's office of Wayne county, Mo. The plat of original entries of Wayne county was offered and read in evidence, from which it appears that Wm. R. Orrick was the original patentee of the land in question on the 10th day of September, 1853. H. M. Hedden testified on behalf of the plaintiff that he was a resident of Denver, Colo., and a merchant by occupation; that prior to his going to Denver he lived or resided in Worcester, Mass., and had resided there about 25 years; that he was the H. M. Hedden who sold the land in controversy to the plaintiff, Henry C. Graton, and made the deed above referred to; that

he bought this land in November, 1875, from one Reuben Spalding, by giving in exchange therefor certain houses in Worcester county, Mass.; that he owned the land in suit from 1875 to 1894, when he sold the same to Gra ton, the plaintiff; the land was timber land; that he paid all the taxes on the said land from 1875 to 1894, and had the old patent from the government to Orrick; that he had in his possession the deed from Spalding to himself when he sold to Graton, and that it was his best recollection that he sent the deed from Spalding: to himself to Graton, with the abstract and all the papers pertain ing to the land; that he also had a deed from L. B. Greenman to Reuben Spalding, and believes that he sent that also to Graton; that he had made diligent search for all these deeds, and could not find them; that he never had a deed from Orrick, the original patentee, to Henry J. Martin, nor from Martin to Greenman. The plaintiff, Graton, testified that he was 77 years of age, and resided in Worcester, Mass., where he had lived 50 years; that he had known Horace M. Hedden, for 20 years; that in January, 1895, he bought this land from Hedden, and received from him the warranty deed already refer red to; at the time he received his deed from Hedden he obtained from him a paper mark ed "Abstract of Title," which he attached to his deposition as an exhibit; that this paper and the deed were the only ones that he remembered receiving from Hedden; that if Hedden gave him any other deeds they had been lost, because after diligent search he could not find them; that he knew Reuben Spalding, and that he formerly lived in Worcester, but had been dead over 20 years, and his widow died 18 years ago; that he had made inquiries concerning the other grantors, Greenman and Martin, and had been unable to find anything concerning them, except Mr. Spalding; that after pur chasing the land from Mr. Hedden he had never sold or conveyed it, or in any way disposed of his interest in said lands; that in September, 1896, he paid the collector of Wayne county the taxes assessed on the said land for the years 1895 and 1896, and in October, 1897, paid the taxes for 1897, and in January, 1899, paid the taxes for 1898 on the same land, and attached the said tax receipts to his deposition; that in September, 1896, he inquired of the collector of Wayne county as to what taxes were due and unpaid on the property, and was not informed that any were due and unpaid; that in October, 1898, he first learned that this property was sold in or near March, 1898, at sheriff's sale, to the defendant, for the taxes of 1894; that he never knew of, or had any knowledge or any notice of, the suit, or the advertisement for the sale of the land for the taxes of 1894, until October, 1899; that the collector did not even notify him that the property had been sold for taxes. The plaintiff introduced a sheriff's deed from Claiborn Barnes, sheriff of the county of Wayne, to the de

fendant, which recites that on the 21st day of March, 1898, judgment was rendered in the circuit court of Wayne county, in favor of the state of Missouri, at the relation and to the use of John K. Lawrence, colector of the revenue of Wayne county, against W. Reener Orrick, Henry J. Martin, Lysander B. Greenman, Reuben Spalding, Horace M. Hedden, and Henry C. Graton, for the sum of $10.20, for certain delinquent taxes on the lands in suit for the year 1894, and certain costs to the amount of $34.65, which judg ment was declared to be a lien upon said real estate for said taxes and costs; and the said deed further recited that a special execution and order of sale was issued from the clerk's office of said court in favor of the state of Missouri, to the use of said collector, and against the said defendants above named, and dated June 10, 1898, directed to the sheriff of Wayne county, directing him to sell said real estate to satisfy such judgment, interest, and costs; and that on said 10th day of June, 1898, the said sheriff levied upon said real estate, and, having advertised the same for 20 days, he did on the 2d day of August, 1898, agreeably to said notice at the courthouse door in the county of Wayne, and during the session of the circuit court at the August term thereof, 1898, expose said land to sell at public auction, and, the HollidayKlotz Land & Lumber Company being the highest bidder for said real estate, it was struck off and sold to said company for the sum bid therefor, and, in consideration of the sum of $50 to the said sheriff paid by the said company, he assigned, transferred, and conveyed to the said Holliday-Klotz Land & Lumber Company all of said real estate by virtue of the aforesaid judgment, execution, and notice, which said deed was dated August 2, 1898. On the said deed was the following acknowledgment:

"In the Circuit Court, State of Missouri, County of Wayne-ss.:

"Be it remembered, That on this third day of August, in the year of our Lord 1898, before the Hon. J. F. Green, Judge of the Circuit Court in the county aforesaid, came into open court, Claiborn Barnes, personally known to the said Judge to be the same person whose name is subscribed to the foregoing instrument of writing, as having executed the same as Sheriff, and also known to be the Sheriff of the County of aforesaid,

and then and there in open court, before the said Judge, acknowledged the said instrument to be his act and deed for the purposes therein mentioned, this certificate of acknowledgment being ordered by the said Court to be endorsed by the Clerk on this deed. "In testimony whereof, I,

Which deed was filed for record the 2d day of September, 1899, at 11:30 a. m. The court, over the objection of the defendant, excluded all of the deposition of Horace M. Hedden as to his purchase and sale of the land, and possession of the patent, and deeds as above noted. Plaintiff also offered in evidence the files of the court in the tax proceedings, showing the order of publication made in the said cause, wherein all the defendants above named, except the plaintiff, Henry C. Graton, are set forth as recited in the deed, and Henry C. Graton, are named as the defendants, and the said defendants were notified to appear on the first Monday in February, 1898, in the circuit court of Wayne county, to plead, answer, or demur to plaintiff's petition, or the same would be taken as confessed, and judgment rendered accordingly. It should be noted also that, in the petition in the said suit, plaintiff states that W. Reener Orrick, Henry J. Martin, Lysander B. Greenman, Reuben Spalding, Horace M. Hedden, and Henry C. Graton are not residents of the state of Missouri. The foregoing, in substance, constituted the evidence on behalf of the plaintiff.

1. The circuit court held that the plaintiff had not established any title, legal or equitable, and dismissed the bill and rendered judgment for the defendant, and this ruling presents the one question for our decision. Section 650 of the Revised Statutes of Missouri of 1899 provides: "Any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property." It is to be observed that by the language of the enactment the controversy is limited to the respective claims of the parties to the action. The statute does not require that the plaintiff shall establish an indefeasible title against the whole world. The statute does not authorize a proceeding which would make the decree operate as a judgment in rem. By its terms no right or title can be litigated, save and except such as may be asserted by the plaintiff and the defendant respectively, and a decree under the statute would not be binding against strangers to the title and party to the suit. This section had often been before this court since its enactment, and the statute had been given a highly remedial and beneficial construction. Its purpose clearly is to supplement the old equitable remedy of removing cloud upon title, and is much more comprehensive in its scope. Huff v. Land & Improvement Company, 157 Mo. 65, 57 S. W. 715; Garrison v. Frazier, 165 Mo. 40, 65 S. W.

229; Ball v. Woolfolk (Mo. Sup.) 75 S. W. 410.

Under a similar but more restricted statute than ours (section 3490, 2 Comp. Laws Mich. 1857), by which any person having possession may institute a suit against another person setting up a claim thereto in opposition to the title claimed by the complainant, and require the defendant to establish his title to such land, it was ruled in Hall v. Kellogg, 16 Mich. 135, "that the complainant was only bound to make out a case as against the defendant, and would not be required to make proof of title beyond that which, when establishing a presumptive case, had not been met by any proofs adequate to shake or destroy it." The contention in that case was that the statute required the complainant to establish his title by clear and satisfactory proof. In answer to this contention, the Supreme Court of that state said: "If a bill under the statute in question could be filed against all possible parties, so as to make the decree operate as a decree in rem to quiet the title against all the world, there would be great force in this objection, and it would be necessary to decide what amount of proof would suffice to shut out any adverse propositions or possibilities." But we have already decided in Hunton v. Platt, 11 Mich. 264, "that a bill seeking to bring defendants having distinct and disconnected adverse claims would be multifarious. No claim can be litigated by complainant in this cause, excepting such as may be asserted by the defendant. The decree cannot be binding against stran gers to the title and parties in this suit. We can see, therefore, no reason for requiring of the complainant any proof of title beyond that which, in making out a presumptive case against the defendant, has not been met by any proofs adequate to shake or destroy it." And the same doctrine is reasserted in Rayner v. Lee, 20 Mich., loc. cit. 388. In Loomis v. Roberts, 57 Mich. 288, 23 N. W. 818, the same court said: "The defendant's solicitor contends that it was incumbent upon the complainant to substantiate and clearly establish his title as alleged; and he claims that it was indispensable to trace his right to the legal title by a continuous chain back to Pettibone, not through the quitclaim deed direct from Pettibone to him, but through the intermediate contract and conveyance alleged." But the court held that, if the complainant made out a presumptive case against the defendant which had not been met by any proofs adequate to shake or destroy it, it was sufficient under that statute.

This brings us, then, to the consideration of the respective rights of the plaintiff and the defendant. In this case, the lands in suit were shown to be unoccupied timber lands. On the part of the plaintiff, he offered in evidence a warranty deed for the land in suit from one Horace M. Hedden and wife, of date January 4, 1895, duly recorded. He also offered in evidence that in the year 1875 the said Horace M. Hedden had received a warranty deed from Reuben Spalding and wife