Pullen v. Hart. tiffs' evidence in chief, the defendant William Hunter offered a demurrer to the evidence which was refused and he saved his exception. But he did not stand on this demurrer and waived the same, in that, after it was refused he offered evidence in his own behalf. Riley v. O'Kelley, 250 Mo. 660. (b) Moreover, defendant failed to assign this action of the court as error in his motion for a new trial, wherefore the same is not now for review. Lusk v. Commission, 210 S. W. 72; Maplegreen v. Trust Co., 237 Mo. 362-63. (c) Defendant did not by demurrer or answer or orally at the trial sugest to the court that any party not a party to the action might be interested in the property involved herein. Hence the point that all interested parties are not before the court is waived and comes too late. Sanders v. Kaster, 22 S. W. 133. (d) Defendant failed to offer a demurrer to the evidence at the close of all the evidence. This is an admission that there was substantial evidence, if competent, to sustain the issues the plaintiffs were required to sustain. "It is a theory defendant cannot be allowed to take back on appeal." Lumber Co. v. Neidermeyer, 187 Mo. App. 186; Heller v. Ferguson, 189 Mo. App. 492. (e) Moreover, this court will not, in the absence of a demurrer to the evidence at the close of the case, review the evidence to ascertain whether or not it was substantial. Dooden v. Woolen Mills, 216 S. W. 534. (f) A jury was waived. The defendant asked no declarations of law or finding of facts and none was given. The finding of the judge sitting as the trier of the facts is therefore conclusive, is based on competent evidence (the evidence having been admitted to be substantial by failing to offer a demurrer). Trust Co. v. Hill, 223 S. W. 434; Reader v. Williams, 216 S. W. 738; Hunter v. Weil, 222 S. W. 472. (2) If Hart owned any title by inurement the judgment of August 10, 1917, after the possible inurement was conclusive as to him. If Hunter was the owner of the true title from Hart, the judgment of March 11, 1915, was conclusive as to him (as privy to Hart). Case v. Sipes, 217 S. W. 309; State ex rel. v. Patton, 271 Mo. 293 Mo.-5 Pullen v. Hart. 559; Lukens v. Ins. Co., 269 Mo. 574; Hutchinson v. Patterson, 226 Mo. 182-83-84; Armor v. Frey, 253 Mo. 475; 23 Cyc. 1253, sec. 5, b; 1256, f; 1257 (III) (A); Sugg v. Duncan, 238 Mo. 422. (a) These judgments foreclosed the issue of title both as to Hart and as to Hunter and prevented them side-stepping the issue on trial. If the true paramount title was in Cummings, Stephens and Cummings or any one else except Hart at the time of the tax sale that title inured to Hart under Hunter's warranty deed of March 3, 1911, and Sec. 2266, R. S. 1919, and the judgment of March 3, 1915, and August 10, 1917, after the tax deed of April 12, 1917, concluded Hart. (3) The three judgments show conclusively that the issue of title between the parties hereto is not a proper subject of further litigation and has been improperly injected and forced into the case by the appellant, so that the plaintiffs were not required to show a title in themselves or a title by common source. The subject-matter of the three former judgments was title, the same as here. However, if the element of res adjudicata be discarded and plaintiffs thrown upon their proof of title or common source, it is apparent they were not required to establish a conclusive or invulnerable case of either title or a common source. At the utmost all they could be required to do would be to establish a prima-facie case of one or the other, by evidence or evidence coupled with presumptions of law. Brooks v. Roberts, 220 S. W. 13; State ex rel. v. Ellison, 268 Mo. 243. (4) Where title is properly drawn in issue in a strictly legal action, unless a common source of title be assumed, admitted or shown, the plaintiff must show a paper title or title by limitations in himself or those under whom he claims; that is, he must adduce substantial evidence tending to show one or the other of such facts. In this case it is admitted that plaintiffs did adduce such substantial evidence in that defendant did not offer a demurrer to the evidence at the close of the case. Dooden v. Woolen Mills, 216 S. W. 524. (5) The tax deed of April 12, 1917, is a nullity. It was a farce. It was a perversion of the Pullen v. Hart. processes of the law to improper purposes. Under a proper proceeding defendant might be adjudged entitled to reimbursement from plaintiffs for their pro rata part paid out in good faith in quieting the title in this way, but he may not base a title on titleless claim which he extinguished by a fiction of law in the payment of his own tax. Kohle v. Hobson, 215 Mo. 213; 38 Cyc. 40, sec. D; p. 48, sec. 2. GRAVES, J.-This is a suit in partition. The subject of partition is eighty acres of land in Pemiscot County. The petition is an ordinary one in partition, averring, however, that the plaintiffs are only entitled to oneeighteenth interest each in the lands, which interests had been fixed by judgment in a previous suit. They also averred that partition in kind could not be made without great prejudice to their interests, and asked that the land be sold and the proceeds divided. Defendants, excepting William Hunter, filed a general denial by way of answer. This is the showing made in the appellant's abstract, which governs. The abstract says: "The other defendants filed answer and denied generally all the averments and allegations in plaintiffs' petition." The brief of appellant has a different line of facts as to these answers, but we must follow the abstract. William Hunter answered as follows: "Comes now the defendant, William Hunter, and for his special answer herein to plaintiffs' petition denies that he is a tenant in common with the plaintiffs in and to the lands in question; denies that plaintiff has any right, title or interest whatever in and to the land in question; denies that the land in question is subject to partition and states the facts to be that plaintiff has no right, title, interest or estate in and to said lands, and that said title and all of it in and to said land is well vested in this defendant and that the land is not subject to partition here, and further answering alleges the facts to be that the plaintiffs have no right, title or interest whatever in and to said land and that the whole title is Pullen v. Hart. well vested in the defendant, and having fully answered prays to go hence without day and with his costs." The real issues are raised by this answer. The trial court found and adjudged as follows: "The court finds that at the time of the filing of this suit the plaintiffs, Timothy Pullen, Caroline Reynolds and Ellen Ransdale, and the defendants, R. B. Hart, Linn Hunter and Wm. Hunter were the owners in fee and tenants in common of, in and to the lands involved in this suit and hereinafter described, and at the time the plaintiffs were the owners of a one-eighteenth undivided interest each therein, and that the defendant R. B. Hart was the owner of the fifteen eighteenths undivided interests therein; that the defendant R. B. Hart, on March 3, 1911, executed and delivered to defendant Linn Hunter, as trustee for the defendant William Hunter, beneficiary, his certain deed of trust conveying said lands thereby (and other lands) to secure the payment of the sum of $11,200, which deed of trust is recorded in Book 41, at page 640, of the deed records of Pemiscot County, Missouri, and is unsatisfied of record, and that the said defendants Linn Hunter and William Hunter were at the time of the filing of this suit the owners of the interest conveyed by said deed of trust. "The court finds, however, that since the filing of this suit the defendant William Hunter claims to have acquired all the right, title and interest of the defendants R. B. Hart and Linn Hunter, in and to said lands by reason of a certain alleged tax sale and deed made by the sheriff of Pemiscot County on April 12, 1917, to J. W. McFarland, and by deed from said McFarland to defendant William Hunter, and that defendant R. B. Hart, in this action, by his answer disclaims all right, title or interest in said lands and defendant Linn Hunter has made no answer whatever. "The court finds that at the time of this trial the plaintiffs, and the defendant Wm. Hunter, are the owners in fee and the tenants in common of, in and to said lands described as follows, to-wit: Pullen v. Hart. "The east half of the northeast quarter of Section 10 in Township 19 north, Range 12 east, in Pemiscot County, Missouri, and that the respective interests of said parties are as follows: "Timothy Pullen, Caroline Reynolds and Ellen Ransdale a one-eighteenth undivided interest each, and defendant William Hunter fifteen-eighteenths undivided interest, and the court further finds that said lands cannot be divided in kind without great prejudice to the owners thereof, and that the same should be sold for a division, and the proceeds thereof divided among the parties in interest as found herein by the court." Sale was ordered and the proceeds were to be divided as per the terms of this interlocutory decree. From such interlocutory judgment in partition, William Hunter has appealed. Pertinent facts and the points made will be noted in the opinion. I. Pertinent facts from the Bill of Exceptions may be thus stated: Plaintiffs offered the following record title: (1) Warranty deed from William Hunter and wife to R. B. Hart, for the land involved here and other lands, said deed bearing date of March 3, 1911. (2) Application of R. B. Hart to the County Court of Pemiscot County for a patent of date October 18, 1912, in which application it is averred that one Wm. G. Gray was the purchaser of said land from Pemiscot County, and had paid in full therefor, and that he, the said Hart, Facts. had by mesne conveyances acquired the title of Gray, and he prayed that a patent be issued to him. (3) Patent from Pemiscot County to Hart, reciting and confirming the matters set out in the application aforesaid. (4) Deed of trust of date 3rd day of March, 1911, from Hart to Linn Hunter, trustee for William Hunter. (5) Judgment in Circuit Court of Pemiscot County, at February Term, on March 11, 1915, wherein Timothy Pullen, Caroline Reynolds and Ellen Ransdale were plaintiffs, and R. B. Hart was defendant. In this judgment the court found that each plaintiff was entitled to a three |