¶1I fully concur in all that is said by Black; C. J., in the foregoing opinion, with the exception of the third and last paragraph.
¶2The proof clearly shows that the money borrowed by the trustee, Sampson, was applied to the payment of taxes which- were a lien upon the land in question, and as 'plaintiffs received the benefit of the money thus paid which served to extinguish the liens they should •in equity and good conscience be required to refund the same before taking possession of the land, and this, too; notwithstanding the answer sets up no such defense. ’That in this case would be but enforcing the old maxim that “he who seeks equity must do equity.”
¶3In 'order, therefore, to avoid- another action by defendants, against plaintiffs for the money • thus borrowed -and- used, by said trustee, the judgment should be reversed and the cause ¡remanded, that the defendants may ainend their answer if so inclined,- setting up the payment - of the money for.the- extinguishment of the tax'lien,'praying that an account be taken, in •which they should be charged with the rent of the *233property while in their possession and that the sum found due defendants, if anything, should be declared a lien upon the land, and that the plaintiffs’ possession of the land be conditioned upon the payment to defendants of the amount due to them, if anything. The court should proceed to settle the controversy, and I think it may be equitably settled in the manner above indicated.
¶4SEPARATE OPINION.
¶5Without going into the question whether the orders of the Boone circuit court (purporting to authorize the loans secured by the deeds of trust) are valid as against those of the adult beneficiaries who requested the trustee, Mr. John JEL Sampson, to apply for those orders, another phase of the case seems to me to commend the present appeal very strongly to favorable consideration upon grounds of substantial equity.
¶6Under the ruling of a majority of this court in Schanewerk v. Hoberecht (1893), 117 Mo. 22, the legal title to the property passed from Mr. John H. Sampson by his deed to Mr. Waugh (the trustee in the later deed of trust) andfrom the latter to Mr. Mitchell, upon the sale after nonpayment of the loan apparently secured by that deed.
¶7On his supposed title Mr. Mitchell sued the present plaintiffs in the ejectment case that has been mentioned.
¶8For answer in that action, they entered a general denial of Mr. Mitchell’s claim to possession, and then set up a defense, which recited those parts of the will of Mr. Richard Sampson creating a trust in the land in suit for their benefit, and declared that they were in *234the possession and enjoyment of the premises as they had the lawful right to be.
¶9To this answer Mr. Mitchell replied, admitting the allegations as to the trust under the will, and then adding some new matter which has not yet received all the notice it seems to me to merit.
¶10In that reply are the following allegations which will be quoted at large, to avoid the possibility of any misinterpretation:
¶11“The plaintiff avers and states that since the probate of said will the defendants, Thomas W. Sampson and his wife Jessie B. Sampson, and the other defendants, their children, as from time to time they were respectively born, have lived upon and enjoyed, and have been the pernors of the rents and profits of the premises in controversy, and the said children have been nurtured and educated out of the issues and profits thereof. He avers that the issues, products and profits thereof were applied by the said Jessie B. Sampson to the support and maintenance of herself, her said husband and children, and to the education of the latter, and to the payment of the annual taxes levied and assessed against said trust estate up to and including the year 1871. That since said year the whole of the rents and profits of said trust estate have been consumed in the support and maintenance of the said Jessie B. Sampson and her family and the education of their children aforesaid, leaving the annually accruing taxes and tax charges and penalties wholly unpaid. He avers that such a contingency as the nonpayment of taxes by the cestuis que trust occupying and enjoying the premises was not contemplated by the testator, when he made the will aforesaid, and he made no provision therein for the same, empowering said trustee John H. Sampson to use the rents and profits thereof in the discharge of. such tax incumbrance. That by means *235of the continuing nonpayment of said taxes, the forfeiture, sacrifice and sale of the trust property, the premises in controversy, to satisfy such tax charges, was threatened by suit, as provided by law and otherwise. That, to prevent such sacrifice and to preserve •the trust property, the said trustee John H. Sampson, pursuant to his power and duty as testamentary trustee, and under the directions and decree of the Boone circuit court, in the exercise of its power and jurisdiction as a court of equity, from time to time borrowed money by pledging under deed of trust the premises in controversy, wherewith to pay off and discharge such tax liens and incumbrances.
¶12“That defendant Jessie B. Sampson and the other defendants and cestuis que trust have since continued to occupy and enjoy said premises, applying the issues, rents and profits thereof to their support and education, and have failed to apply the same, or any part thereof to the payment of the mortgage debt, so as aforesaid by John H. Sampson, the said testamentary trustee, imposed thereon, or the interest thereon accrued, or to the discharge of the annually accruing taxes, so that James H. "Waugh, the trustee in said deed of trust, at the request of the holders of said mortgage debt, on the fourteenth day of June, 1890, after due and proper notice, and in manner and form as required by the terms of said deed of trust, and the statute for such cases provided, sold at public vendue all the right, title and interest of the defendants, and of John H. Sampson, testamentary. trustee, of, in and to the premises in controversy, at which sale the plaintiff became the purchaser thereof.
¶13“And he avers that by reason of the premises, and of the deed of conveyance to. him made by the said trustee, Waugh, he was on the sixteenth day of June, 1890, the fee simple owner of and was then and is now *236entitled to the possession of the lands in the petition described.
¶14“Whereupon the plaintiff reaffirms the several allegations and averments of his original petition herein and prays judgment as therein demanded.”
¶15Upon the issues raised by the aforesaid pleadings that case was tried by the court, without a jury, and the substantial facts appearing in the suit at bar were all shown to the court then, ánd its judgment pronounced upon them.
¶16The court found for the plaintiff, Mr. Mitchell, assessed his damages at $156, and the monthly rents at $20, and rendered judgment for plaintiff for possession and the damages, etc., as found.
¶17That judgment was never appealed from. It became final in .due ’course. Mr. Mitchell went into possession under it. He was in possession under it when this suit was begun.
¶18The plaintiff’s petition in this case is framed as a bill in equity asking for the cancellation of the deed of trust of Mr. John H. Sampson to Mr. Waugh and the deed from the latter to Mr. Mitchell and “that the legal title to said land be reinvested in a trustee, to be held under the terms of the will,” etc.
¶19. The answer of Mr. Mitchell, dpnies many, of the allegations of the petition, and then sets up the former judgment as an adjudication of the same matters sought to be revamped in the petition herein.
¶20This plea of res judicata is quite full and circumstantial, but.its language need not be further dwelt upon.
¶21The above is its substance. Its form is not questioned ; but some of my learned brethren appear to consider that the. facts do not sustain jt. .
¶22What wasithe effect of the former judgment?. It adjudged that Mr. Mitchell was entitled to possession, in view of the facts then before the court.
¶23*237The answer in the former case which sought to avoid in equity his claim to possession (under his legal title) set up the terms of the will of Mr. Richard Sampson creating the trust, in which defendants were beneficiaries.
¶24The reply thereto (which has been quoted) asserted, in substance, that the funds raised by the deed of trust had been used to discharge the liens of taxes and costs and interest thereon, as already indicated.
¶25In equity those facts entitled plaintiff to claim possession of the land, at least until reimbursed from it for the amount of the tax liens and charges which his funds had liquidated.
¶26Upon that state of the case a competent court pronounced judgment, after a hearing upon the merits, and awarded possession to plaintiff, Mr. Mitchell.
¶27The effect of that judgment was to sanction plaintiff’s possession as against the title interposed by the defendants based on the will. That title was equitable in its nature, and the facts urged against it by the reply raised another equitable issue to meet the equitable title.
¶28The proposition is not gainsaid that a judgment in ejectment is no bar to another such action. But it is equally well settled that, where, in such a proceeding, an equitable title is pleaded and adjudged, the result can not be regarded otherwise than as a conclusive judgment on that title.
¶29The rule as to an ordinary judgment in ejectment being no bar to other actions on the same title is itself exceptional, and depends for its maintenance on a close application of technical principles of the common law governing the action of ejectment • at the time of its origin. In many states the rule itself has been abolished or modified by statutes, as no longer in harmony with the demands of justice at the present day
¶30*238With, us no such change has occurred. It is not my purpose to question the force of the rule itself in Missouri. But it certainly should not be enlarged by construction.
¶31The judgment in the former action determined that the defendants’ (now plaintiffs’) claim to possession of the estate as beneficiaries, under the trust created by the will, was not tenable, and that Mr. Mitchell was entitled to possession in view of the facts then submitted to the court.
¶32That judgment certainly ought to be given the full force which its record imports as against a second litigation of the same equities. That proposition should be considered settled law in Missouri by the precedents on that point. Chouteau v. Gibson (1882), 76 Mo. 38; Preston v. Rickets (1886), 91 Mo. 320; St. Louis v. Lumber Co. (1889), 98 Mo. 613.
¶33It is wholly immaterial whether that judgment was a correct or erroneous deduction from the pleadings and evidence in the former case. It is, nevertheless, conclusive upon the question whether or not the present plaintiffs were entitled in equity to possession on the facts then developed, which were substantially the same as those shown in this case — with the exception that, since that judgment, Mr. Mitchell has gone into possession and the judgment has become a finality.
¶34But the observations just made are not to be taken as intimations that the former judgment upon the rights of the parties, as unfolded by the answer and reply in that case, is in any respect unsound as an expression of the doctrines of equity.
¶35It then appeared, as it now appears, that the funds advanced by Mr. Mitchell (upon the faith and supposed security of the deed of trust, executed by the trustee) were applied by the latter to pay the state, and other, taxes due upon the property together with interest *239thereon. The loans were made for that very purpose as appears by plain recitals in the deeds of trust, as well as by other evidence.
¶36The trust estate was liable for the taxes upon it They were liens upon the land, paramount, by the terms of law, to any interest of the beneficiaries in the property.
¶37Wherever the liability for these taxes may properly fall, as between the trustee and the parties beneficiary under Mr. Eichard Sampson’s will, there is no doubt in my mind that, as between all of them and Mr. Mitchell, who furnished (in the manner above described) the money to relieve the estate of the liens of those taxes, equity demands that the estate should stand good for the funds so furnished..
¶38The principles of subrogation govern such a state of facts and indicate the remedy which equity applies thereto to avert a failure of justice. Lanier v. McIntosh (1893), 117 Mo. 508; Gilbert v. Gilbert (1874), 39 Iowa, 657; Levy v. Martin (1880), 48 Wis. 198; Lockwood v. Bassett, (1883), 49 Mich. 546; Crippen v. Chappel (1886), 35 Kan. 495; Wenlock v. River Dee Co. (1887), 19 Q. B. Div. 155; Emmert v. Thompson (1892), 49 Minn. 386.
¶39The present plaintiffs (assuming now, without deciding, that the orders authorizing the incumbrance of the trust properly were void) could not be permitted, in a court of conscience, to recover the estate discharged of the tax liens which the funds of another have paid in such circumstances as this case exhibits.
¶40Mr. Mitchell was no mere volunteer. He supposed his loan was protected by the security of the deed of trust, executed on the faith of a supposed order of court.
¶41So the judgment in the former case has ample support in sound principle, as well as the force of a *240final judgment on the equities of the parties to it. Mr; Mitchell has possession under it. He should, hence, be treated and considered as a mortgagee in' possession until reimbursed for the taxes and liens which his advances to the trust estate have discharged. Gooch v. Botts (1892), 110 Mo. 419.
¶42In the case at bar the defendant, Mr. Mitchell, did not set up the amount of those advances and ask to have them declared liens on the estate. His answer, however, admitted the statement in the petition that Mr. John H. Sampson, as trustee, had “encumbered said land by a certain deed of trust to James H. Waugh, trustee, for the purpose therein specified.” That purpose, as shown by the deed'of trust in evidence, was to pay the debt and interest secured by the first incumbrance given to meet the tax charges, and to pay like charges accrued before the last deed of trust was given.
¶43But the answer of Mr. Mitchell further asserts that the matters and title set forth in the petition were adjudicated in the former action referred to — and he relies upon that judgment. In the pleadings in that case the fact of the advances to the trust estate appears fully, and it also appears that they were applied to meet the liens for taxes.
¶44In this condition of the record and of the facts, defendant, Mr. Mitchell, is entitled in my opinion to retain possession until the advances for taxes and interest are repaid to him or are realized by him from the rents and profits. The former judgment did not wipe out the equity of plaintiffs to redeem upon the discharge of those proper and just burdens upon their estate. It only adjudged the right of possession at that time as between the equities set up by the parties then before the court.
¶45Plaintiffs should be allowed to redeem the land on framing their pleadings to that end.
¶46*241The judgment in the circuit court in their favor was erroneous. It should be reversed and the cause remanded, so that the plaintiffs may then amend, if desired, and present a bill to redeem.
¶47Eor these reasons my concurrence is given to the judgment of the court in lane.