text:
    JACKSON CREAMER v. ROSALIE BIVERT, Appellant.
    Division One,
    November 25, 1908.
    1. EQUITY: issues of Fact: Appellate Practice. Where an issue of fact rests in equity alone on the credibility of witnesses, the appellate court will usually defer to the finding of the chancellor, who has many opportunities denied to the upper court of determining the weight which properly attaches to their testimony.
    2. CONVEYANCE: Delivery: Record. If the deed was never delivered, it never became operative as a conveyance, whether recorded or .not. But if delivered, its record did not as between the parties add to or detract from its validity as a conveyance.
    3. -: Executed. To speak of a deed as executed, means not only that it was signed, but also that it was delivered. And to allege in the bill that the deed was “executed” is, in a broad way, to allege that it was delivered.
    4. -: To Perpetrate a Fraud: Delivery. Where plaintiff was sued by a woman for breach of promise and in order to defeat execution under any judgment she might obtain, sighed and acknowledged a deed conveying his land to his sister and handed it to her, to be handed back to him at his request, as he says, the controlling fact as to whether or not there was a delivery of the deed is that delivery was essential to consummate the fraudulent purpose, and that purpose being alleged in the petition, and shown by the evidence, and the preponderance of the creditable testimony being to the effect that there was a delivery, the plaintiff’s bill to have the deed set aside should^ be dismissed, even though no consideration passed, and even though there was an understanding between them that the title should be conveyed back to,him when his troubles were at an end, for such an understanding assumes that the title had passed. [Distinguishing Bunn v. Stuart, 183 Mo. 375.]
    5. -: -: Setting Aside Deed: Clean Hands. The rule that he who comes into a court of equity must come with clean hands, is a cardinal one; and its application does not depend upon the averments of the pleadings, or the wish of counsel, but it may be invoked and applied by the court of its own motion. Where plaintiff made a deed to his sister for the fraudulent purpose of defeating an anticipated judgment creditor, and the sister accepted the deed knowing that was its purpose, equity will let them lie in the bed they made for themselves, and will dismiss his bill to have the dfeed set aside, and her cross-bill asking that the deed be confirmed and the title declared to be in her.

      Appeal from Gentry Circuit Court. — No». Wm. G. Ellison, Judge.
    Reversed and remanded {with directions).

      G. E. Ernst and G. R. 8. Goodman for appellant.
    (1) The burden of proof was on plaintiff to establish the facts of the non-delivery of the deed, and the non-payment of the consideration expressed in the deed, by evidence so cogent, clear and convincing as to leave no reasonable doubt in the mind of the chancellor. This is the rule whenever it is sought to deprive one party of a vested estate, and vest the same in another. Worley v. Dryden, 57 Mo. 226; Allen v. Logan, 96 Mo. 591; Atkinson v. Henry, 80 Mo. 151; Jackson v. Wood, 88 Mo. 76; Keiser v. Gammon, 95 Mo. 217; Pitts v. Weakley, 155 Mo. 109; Mulock v. Mulock, 156 Mo. 431; Viers v. Yiers, 175 Mo. 444; McKee v. Higbee, 180 Mo. 263; Smith v. Smith, 207 Mo. 533. (2) The conveyance sought to be set aside was duly delivered. When a deed has been executed and acknowledged, the possession of it by the grantee is presumptive evidence of its delivery. Green v. Yarnall, 6 Mo. 326; Rogers v. Carey, 47 Mo. 232; Scott v. Scott, 95 Mo. 3Ó0; Souverbye v. Arden, 1 Johns. Ch. 240; Methodist Church v. Jaques, 1 Johns. Ch. 450'; 5 Am. and Eng. Ency. Law (1 Ed.), 447; 3 Washburn on Real Property (6 Ed.), secs. 2165', 2169. (3) If the deed was delivered-with the object and purpose to defeat a prospective judgment creditor, while it might have been fraudulent as to said creditor it was valid and binding as between plaintiff and defendant, and plaintiff cannot impeach it. Mulock v. Mulock, 156 Mo. 442; McLaughlin v. McLaughlin, Admr., 16 Mo. 242; Caldwell v. Bower, 18 Mo. 375; George v. Williamson, 26 Mo. 190; Merry v. Freeman, 44 Mo. 518; Hall v. Callahan, 66 Mo. 316; Larimore v. Taylor, 88 Mo. 661; Hayes v. Fry, 110 Mo. App. 20; Knapp v. Knapp, 118 Mo. App. 686. (4) The deed of May 15', 1890', was not an escrow. A deed can never he an escrow if delivered to the grantee unless for the express purpose of being handed to a third party, even though accompanied with an express condition and not to take effect unless such condition be complied with. The title will nevertheless pass by such delivery. 3 Washburn on Real Prop1. (6 Ed.), sec. 2176; 4 Kent (11 Ed.), side page 454; State v. Potter, 63 Mo. 212; Massman v. Hatcher, 49 Mo. 87; Henshaw v. Dillon, 59 Mo. 139; Jones v. Shaw, 67 Mo. 667.

      Allen, Gabbert S Mitchell, W. F. Dalbey and R. L. Nichols for respondent.
    (1) A deed, without consideration, delivered to grantee under a distinct understanding that it was not to be recorded, and was to be returned at any time thereafter when the maker should call for it, was never delivered, and such deed would not become operative to convey the title. Bunn v. Stuart, 183 Mo. 375. (2) Chancery courts will defer to the finding of the lower court when the evidence is conflicting. Chouteau v. Allen, 70 Mo. 336; Chapman v. Mcllwrath, 77 Mo. 43; Springer v. Kleinsorge, 83 Mo. 159; Mathias v. O’Neill, 94 Mo. 530; Gottschalk v. Kircher, 109 Mo. 170; Bartlett v. Brown, 121 Mo'. 364; Kinzer v. Kinzer, 130 Mo. 131; Bemis Bros. Bag Co. v. Ryan Com. Co., 74 Mo. App. 632. (3) A case on appeal must be disposed of upon the same theory upon which it was tried in the lower court. State ex rel. v. Chick, 146 Mo. 645; Trustees v. Hoffman, 95 Mo. App. 489'; Overshiner v. Britton, 169 Mo. 341; Stewart v. Outhwaite, 141 Mo'. 562; Novelty Mfg. Co. v. Pratt, 21 Mo. App'. 171; Gold-stein v. Winkelman, 28 Mo. App. 432; Fullerton Lumber Co. v. Calhoun, 89 Mo. App. 209; Randolph v. Frick, 57 Mo. App. 400; Hollman v. Lange, 143 Ma. 100'; Glaser v. Rothchild, 106 Mo. App. 418. (4) There is no question bnt that the' possession of grantee of a deed duly executed and acknowledged is presumptive evidence of its delivery, but such presumption falls in the presence of testimony that there was no such delivery. Bunn v. Stuart, 183 Mo'. 375.
   LAMM, J.

From a decree of the Gentry Circuit Court adjudging a certain deed conveying one hundred acres of land from plaintiff to his sister, Rosalie, null and void and divesting the record title out of her and into him, defendant appeals.

The bill is subdivided into counts. If that method of pleading be not somewhat of an innovation on modern equity practice, yet the counts as such need no attention, for the gravamen of both is the same — the first merely stating thq cause of action with more full* ness of detail than the second.

It is alleged in the bill that plaintiff is the owner of the north half of the northwest quarter of section 15’, and 20 acres off of the south end of the southwest quarter of the southwest quarter of section 10', all in township 63, range 31, in Gentry county, and is and has been for forty years in possession; that on May 15, 1890, he was threatened by one Sarah Kuhey with a suit for damages for breach of promise to marry; that having in view the disposition of his land he “did make and. execute ’ ’ a warranty deed on said date, purporting to convey said real estate to defendant; that be acknowledged it; that defendant induced him to make it by stating to him she would assist him thereby in preventing said Sarah Kuhey “from securing said land or taking said land under and by virtue of any suit instituted or that might thereafter be instituted by her,” said Kuhey; that defendant being his sister he implicitly trusted her and relied upon her said statements and promises; that the deed was without consideration; that plaintiff never intended to part with his dominion or control over it and never delivered it to defendant for the purpose of conveying said land but that when it was handed to defendant “it was mutually agreed by this plaintiff and defendant that said deed executed as aforesaid should be handed to defendant to be held and kept by her for this plaintiff and that said deed should be returned to this plaintiff whenever he should demand same, and that in no event should it be placed on record in the recorder’s office in said comity and that defendant at the time said deed was handed her by plaintiff promised plaintiff that she would merely hold said deed in her possession without recording same and subject to his recall whenever he should demand same;” that afterwards without plaintiff’s knowledge or consent defendant wiongfully and deceitfully caused said deed to be put of record; that afterwards on the 30th day of November, 1900, plaintiff settled his differences with Sarah Kuhey and married her. That afterwards at divers times (without avail) he requested defendant to return said deed, he not knowing- it had been recorded ; and that when he found it was recorded he requested her to quitclaim the land back but she refused to do so.

The answer admitted Rosalie holds title by virtue of the deed, but denies each and every other allegation in the petition. It next goes on to allege that she is the rightful owner of the premises, that she purchased the same for a full and valuable consideration paid by her; that the conveyance was intended to be operative in conveying the legal title. Based on such allegations, she prayed affirmative equitable relief, viz., that the court declare she is in good faith the legal and rightful owner of the premises, discharged of any equity or trust whatsoever, and for all other and proper relief.

On such paper issues the cause was tried, and the chancellor found (1) there was no consideration for the deed and (2) there was no delivery of the deed. On these findings the decree went as prayed in the bill.

The case on appeal presents three propositions, viz.:

First. Was there error, nisi, in finding no consideration for the deed?

Second.- Did the chancellor err in finding there was no delivery of the deed?

Third. On all the facts, will a court of conscience interfere?

I. Of payment. There was testimony by plaintiff that no valid or valuable consideration passed from defendant to him. Creamer testified that way. He introduced witnesses' who testified to facts pointing the same way and strongly corroborative to the effect that in 1890 Rosalie lived in an humble way in the town of Albany and eked out a scant living for herself and family as a washwoman; that she had no visible signs of ready money and practically admitted to others she paid nothing. Contra, defendant put in proof on the issue of payment, in substance, that the money was paid shortly after the date of the deed partly out of Rosalie’s savings as a washwoman, partly out of her savings in raising and selling chickens, a few pigs and a cow or so each year and partly out of money sent and brought to her by Louis, her son, who on coming to man’s estate worked in Colorado in restaurants and saloons at $40 per month and who went to Oklahoma at the opening of the territory for settlement. This money had been kept in a wardrobe in an upper chamber hid in the lining of an old fur muff, which said muff had a somewhat picturesque and variegated career. Not only was it at the start a wedding present, and presently the family money chest, but at a certain time it was put out in the sunshine to rid it of moths when a puppy (not understanding or respecting the purpose of its appearance within his reach and runways, nor its value as a family receptacle for money) appropriated it to Ms own use and, when through with it, it became straightway a reminiscence as distinguished from a fact susceptible of tangible evidence by tender in open court.

If the issue of-payment or no payment is to be determined by the mere bulk of the testimony and the number of the witnesses pro and con then defendant had the better of it, for the existence of the muff, its use in secreting treasure, the existence of the hidden treasure itself and its appropriation in paying for the land are shown by the copious testimony of several members of the Bivert family. As against their positive testimony stands that of plaintiff himself supported by corroborative proof of the character stated. But the justice of a cause does not alone hang or turn on the count of witnesses on the fingers, or on mere numerical weight. That (by itself) would be a crude rule for establishing a fact. The philosophy of the plan of getting at the fact, in cases of conflict in testimony, has deeper and more sure guides than such easy scheme. Here there was a maze of testimony affecting the credibility of some of the witnesses on both sides — there were currents and cross-currents in it sharply affecting the probability and the improbability of the stories told on the stand. The bulk of the testimony was oral. In such condition of things, while this court has said over and over again that the whole record must come here in equity cases so that (sitting as the final arbiter in chancery) we may weigh and decide de novo and thus do equity, yet the court is also fond of saying that deference should be given to the trial chancellor. He sees and hears much we cannot see and hear. We well know there are things of pith that cannot be preserved in or shown by the written page of a bill of exceptions. Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last resort. She oft hides in nooks and crannies visible only to the mind’s eye of the judge who tries the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full, realization of the solemnity of an oath, the carriage and mien. The brazen face of the liar, the glibness of the schooled witness in reciting a lesson or the itching over-eagerness of the swift witness, as well as honest face of the truthful one, are alone seen by him. In short, one witness may give testimony that reads in print, here, as if falling from the lips of an ángel of light and yet not a soul who heard it, nisi, believed a word of it; and another witness may testify so that it reads brokenly and obscurely in print and yet there was that' about the witness that carried conviction of truth, to every soul who heard him testify. Therefore, where an issue in equity rests alone on the credibility of witnesses, the upper court may with entire propriety rest somewhat on the superior advantage of the lower court in determining a fact.

Therefore it is our opinion that if there is nothing in this case but the issue of payment or no payment we would not disturb the decree.

We are furthermore of the opinion that the issue of payment, whether found for plaintiff or defendant, is not a deciding’ one, but that the controlling’ questions are the second and third propositions. This conclusion makes it a useless task to state the evidence at large relating to payment and brings us at once to the remaining propositions — propositions that depend upon common facts and hence may be considered together, as they are in the next paragraph.

II. Jackson Creamer’s true given name is Jacques, commonly called “Jack” by his, plain Missouri neighbors, and dignified as “Jackson” for court purposes. Both parties litigant are of French birth, being bom in Lorraine when that was a province of France. Neither of them can readily read or write English, both of them read and write French, we infer. Neither is shown to have any advantage of the other in intelligence. J acques has served a term in the penitentiary for a felony, Rosalie, in jail for a misdemean- or. Nor can we make out from the record that either of them stood in the relation to the other of business manager, adviser, or other fixed and settled general relation of confidence and trust. True, they were brother and sister, but their relations in that regard are not shown to put one in the vantage ground' of managing or controlling the business acts and conduct of the other. Nor, under the proof, can it be justly held that her mind held mastery over his. It cannot be said in this case that theirs were “two souls with but a single thought” (or, as put by Bellinghausen in Ingomar, The Barbarian, “Zwei Seelen und ein Gedanke”), and that thought hers.

The case stands clear of any fiduciary relation and the solicitude and jealousy with which courts of conscience watch and pry into such relation [Stitt v. Stitt, 205 Mo. l. c. 166] cannot be invoked to aid plaintiff.

In 1882 or 1883 their mother deeded her home— the land iu dispute — to Jacques. Her record title was somewhat cloudy. At the time of the trial Rosalie was seventy years old. He, we gather, was also old. The land was broken and thin, in 1890 worth possibly $2,000 or $2,500 with a clear title. Jacques resided on it in 1890 as a bachelor. Avoiding details, the record discloses that during thát year and before he became entangled in an intrigue with his housekeeper and through sinful inadvertence or evil concupiscence became much “battered in the wars of Venus,” to borrow for use the figure of a distinguished judge. As a result a child was horn out of wedlock to them. Thereat, he was arrested for violating the statutes denouncing open and notorious sexual immorality. Not only so, hut he was sued by the woman for damages for breach of promise to marry. At that time, his sins having found him out, he was in hard lines. The evidence falling from his lips and put in by his witnesses shorvs beyond cavil or doubt that he feared the result of a civil suit, and, casting about him for a way out, he conceived the plan of circumventing the woman by disposing of his real estate. His first plan Avas to deed it to one C, who was to borrow $700' on it, turn the money over to him and then deed the land back subject to the loan when his troubles were over, if ever. This plan miscarried because of irregularities in the title. Thereupon a new scheme was hatched, to-wit, that the land should be conveyed to Rosalie, who lived in Albany three or four miles, away. The testimony shows that a lawyer was consulted by one or both.

It is alleged in the bill, faintly suggested by plaintiff’s proof and denied by defendant’s, that the scheme finally carried out was hers, that she induced Jacques to make the deed. But we do not find it so, nor did the court below find it that way. It was Jacques, not she, who was stung by the nettle of dan'ger. It was his affair, not hers. His eye, not hers, was looking this way and that for, the path of safety out of the brambles of trouble. His, not hers, was the first abortive plan; and undoubtedly he it was that fell upon the second plan as a dernier resort. That she fell in Avith it does not alter the fact. Adam’s old and discredited ruse of shifting the blame on a woman must be strongly supported by the proof to be favored in á court of justice.

While there is a divergence and conflict in the testimony on the payment of the consideration, yet there is none on the fact that tbe physical custody of the deed signed by Creamer, duly acknowledged'and reciting the payment, was handed over to defendant either by Creamer himself, or by the attorney who wrote the deed with Creamer’s consent. She retained the custody of it until the 11th day of October, 1890, when it was spread of record.

It is asserted on one side and denied on the other that the deed was to be recorded. Ye deem that issue immaterial; because, if never delivered, it never became operative as a conveyance and, in that view of the •case, its record created a cloud on plaintiff’s title removable in equity. If, however, it was in truth and in fact delivered, then the title passed and its mere record (standing alone) caused plaintiff no injury and •gave him no cause of action. [Cook v. Newby, 213 Mo. 471.] Hence, the real question resolves itself into the delivery of the deed.

The bill contains an allegation that the deed was “executed.” Now, to speak of a deed as executed means in law that it was signed, sealed (when that is necessary), acknowledged (when that is necessary) and delivered. In a broad way, then, the bill alleges delivery. But the context is of such sort as to show the pleader did not mean it that way. He states in effect that it was not to be delivered — that plaintiff did not lose dominion over it but that it was to be handed back to him at his request. There is testimony sustaining that averment. There is very strong testimony the other way. We are constrained to disagree with the learned chancellor in his finding that there was no delivery. We base our conclusion not only on what seems to us the great weight of the credible oral testimony on that point, hut on another and controlling fact, vis.: that delivery toas essential to consummate the admitted fraudulent purposes of plaintiff. He started out to do that very thing, to-wit, commit a fraud. What stopped him? Is it supposable in reason that a grantor who starts out to make a deed for the avowed purpose of perpetrating a fraud would (absent twinge of conscience or visible obstacle) halt midway in his. career of covin and approach to and yet not do the identical thing he set out to do> to-wit, consummate the fraud by passing the title to his grantee by delivering the deed? Was something doing, and yet nothing done? He either delivered that deed or else he perpetrated a fraud within a fraud, i. e., he put himself and the grantee in a fix where, when the worst came to the worst, they both could swear in a court of justice that the deed was delivered. Why should we pick the latter theory in preference to the former and thus add contemplated perjury to the fraud?

We think it must be held there was a delivery of the deed and this is so although it may very well be there was an understanding the title should be conveyed back when the clouds rolled by, if ever. But, observe, an agreement to convey the title back assumes the fact that the title had once passed, and that is fatal to plaintiff’s theory of no delivery.

Learned counsel for plaintiff rely greatly on Bunn v. Stuart, 183 Mo. 375. At first blush that case is favorable to their view. But well looked to, it is not so. We have read the opinion painstakingly. We have examined the pleadings, abstracts and briefs preserved in the judgment roll of that ease. The most to be said is that it has some features in common with the case at bar. But theré were other features distinguishing that case from this. In that case an old man had made a will devising certain property to his daughter. Becoming discontented with that form of disposition of the land, he concluded to deed the property directly to her children. These deeds, with others executed about the same time to his own children, were in the nature of a testamentary disposition of his real estate; He held all of them for several months. He then married a third wife and trouble subsequently arising between them, he made some provision for her and a divorce snit was pending. The record shows that it stood practically conceded in the proofs that all the deeds in question were handed over to the respective grantees about the time of the divorce suit, with the express understanding they were to be kept for the grantor and handed back to him at his request. Some of them were handed back at his request in accordance with the agreement. The grantees in such as were handed back testified to the agreement. The grantees in the deeds placed of record and not handed back did not take the witness stand and deny the agreement. While, as said, the case has some common features to the one at bar, yet the proof is different and it was held there was no delivery. That case, therefore, does not control this one.

After the record of the deed, plaintiff married the Kuhey woman who has since died. There is some evidence sustaining the averment in the bill that, not knowing the deed was of record, plaintiff asked to have it returned to him. There is also evidence that after the deed was recorded plaintiff demanded back a quitclaim deed which was refused, but we deem none of these features decisive.

Finally, plaintiff must be denied relief because of public policy — he does not come into a court of equity with clean hands. He is confronted with the related maxim that where the fault is mutual the law will leave the case as it finds it (In pari delicto potior est conditio, etc.).

There are exceptions to those maxims, but none of them avail this plaintiff. The maxim that he who comes into equity must come with clean hands is a cardinal one. It touches to the quick the dignity of a court of conscience itself. Hence, its application does not depend upon the averments of the pleadings, or the wish of counsel, but it may be invoked and applied, ex mero motu, by the court. [16 Cyc. 148.] The case may well rest on this ground, if no other. [Poston v. Balch, 69 Mo. 115; McNear v. Williamson, 166 Mo. 358; Holliway v. Holliway, 77 Mo. 392; Hobbs v. Boatright, 195 Mo. 693.]

On this ground, too, defendant should be denied affirmative relief on the averments of her answer, even if those averments are sufficient to entitle her to such relief (on which question we do not pass).

The parties litigant made their bed — an unclean one — let them lie in it. Equity will not make it over. She is a handmaiden to Justice withal, but her precept is John Wesley’s, “Cleanliness is indeed next to godliness.”

There was evidence in the case on behalf of defendant that plaintiff was her tenant paying rent from time to time in wood, hay, etc. There was evidence to the contrary. The evidence on both sides on that behalf was put in on the issues of payment and delivery and not on any issue of the Statute of Limitations and title created by adverse possession, if any, since the execution of the deed.

We deem it proper to say that an issue of title by adverse possession since the execution of the deed is not involved in this suit and is, therefore, not passed on.

The judgment is reversed and the cause remanded with directions to dismiss plaintiff’s bill, such dismissal to carry with it defendant’s cross-bill in the form of an answer asking affirmative relief.

All concur; Woodson, Jin all except what is said on the Statute of Limitations.


source: Caselaw Access Project

author: VALLIANT, P. J. WOODSON, J.

license: Public Domain

text:
    ADA THOMPSON, Appellant, v. KEYESMARSHALL BROTHERS LIVERY COMPANY.
    Division One,
    November 25, 1908.
    1. NEGLIGENCE: General Allegations: Specifications. A general charge of negligence, followed by specifications of particular acts, is; as a general rule,' merged into the specifications, or rather the specifications are deemed as explaining what the general charge is intended to mean.
    2. -: -: Two Acts in Same Count. In a petition in which a personal injury is alleged to have been suffered through the negligence of defendant, the pleader is not limited to one act of negligence, or to two or more of the same kind, either of which or all of which together might have produced the same result. That form of pleading is not violative of the rule that not more than one cause of action can he stated in one count, because each and all the several acts point to but one injury. In the same count may be included an act or acts constituting negligence at common law and an act or acts of negligence under a statute or ordinance, if all point to the same result and are not inconsistent.
    3. -: -: -: Specifications: At Common Law and Under Ordinance. The petition in this case stated a complete cause of action at common law and another under the ordinance, and the one at common law, containing as it does both charges of negligence and specific acts, was not merged in the one of negligence for a violation of the ordinance.
    4. -: -: -: No Ordinance. Where the petition states a good cause of action at common law and one for a violation of the ordinance, in the same count, and the court sustained a demurrer to plaintiff’s case on the ground that she was guilty of such contributory negligence as barred a recovery, the court’s action will not be sustained for that no ordinance was introduced in evidence, if the defense of contributory negligence under the common law count cannot be sustained as a matter of law.
    5. -: Struck by Team on Street: Contributory Negligence. Plaintiff and her sister were standing, with other persons, at the northwest corner of a street crossing, waiting for a west-bound car. The sister saw defendant’s carriage a block away, driving fast towards them, but saw it no more until it struck plaintiff, standing ten feet east of her, just as both were in the act of getting on the car. Plaintiff, who was a girl seventeen years old, noticed the team driving fast a half block away, and testified that “before I knew it was up by me,” and testified that “it continued to come at a very rapid rate until it struck me.” Held, that her testimony clearly indicates that she saw it only a half block away and just as it struck her, and that her statement that “it continued to come at a very rapid rate” was a conclusion from the facts, and a reasonable one, and her testimony did not show contributory negligence, and the court erred in sustaining a demurrer to the evidence on that ground.
    6. -: Irrelevant Testimony. Where there was no charge in the petition that the horses which ran against plaintiff and injured her had got beyond the driver’s control, but on the contrary the prevalent idea of the case is that the accident occurred through the driver’s fault, it is not error to strike out the testimony of a witness that “the driver did not seem to have good control of the horses.” The testimony was not relevant to the issues.
    7. -:-: “To Avoid Injury.” Testimony by a witness, who was standing near the injured plaintiff and her sister, saw the horses coming and in jumping on the car struck the sister and knocked her down, that “to avoid the team I jumped on the front end of the car instead of getting on in the usual way,” was properly struck out. It was the opinion of a witness not called for by the situation.

      Held, by WOODSON, J., dissenting, that the witness’s testimony as to why he jumped on the car in such haste as to knock plaintiff’s sister down, characterized his act and the situation, which could only be shown by oral testimony. His act bespoke his fear, and cannot be understood without the explanation contained in the words “to avoid the team.”
    Appeal from St. Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge.
    Reversed and remanded.

      J. F. é R. II. Merryman for appellant.

      Seddon & Holland for respondent.
   VALLIANT, P. J.

Plaintiff sued for damages for personal injuries sustained by her through, as she alleged, the negligence of defendant. At the close of the plaintiff’s testimony the court gave an instruction to the jury that she could not recover because she was guilty of contributory negligence, the verdict of the jury was for the defendant and the plaintiff appealed.

Plaintiff in her petition states that she was standing in Olive street near the corner of Ninth street at the crossing in a business center of the city greatly traveled by persons on foot, waiting for a west-bound street car, “when defendant by its agents and servants violently ran a team of horses attached to a vehicle into and against plaintiff; said horses knocking plaintiff down and trampling her under their feet, thereby severely wounding and injuring plaintiff; that the injury to plaintiff was due to the carelessness and negligence of defendant’s agent in driving said horses attached to said vehicle at the time and place aforesaid and in violently running into and against plaintiff.

“Plaintiff further states that at the time of the injury aforesaid there was in full force and effect in the city of St. Louis an ordinance of said city known as section 1473 of the Municipal Code of St. Louis, Edition 1901, which provides that ‘no person who shall in this city ride or drive any animals in any highway, thoroughfare or public place quicker than or beyond a moderate gait, or shall not slacken the pace of such animal or animals in approaching any cross walk upon which any person may be ... in the act of approaching or leaving a street car, or shall ride or drive any such animals so as to cause any such animal or any vehicle attached thereto to come in collision with or strike any other object or person . . . shall be deemed guilty of a misdemeanor.’ ”

Then the petition alleges that the defendant did drive the horses “quicker than a moderate gait and did not slacken the pace,” etc., following the language of the ordinance specifically charging the doing of the acts therein forbidden and that in consequence of the violation of tlie ordinance the team was violently and negligently run against plaintiff, knocking her down, etc.

At the trial there was evidence tending to show that the defendant did negligently run the team of horses against plaintiff inflicting the injuries as stated, hut the plaintiff did not introduce the alleged ordinance in evidence and her failure to do so is relied on by defendant as the first ground which justified the court in giving the peremptory instruction. It was not on that ground, however, that the court gave the instruction. The instruction as asked was general in its terms, saying in effect that plaintiff was not entitled to recover; the court refused to give it in that form, but added as the specific reason for giving it that ‘ ‘ she having been shown by the evidence to have been guilty of contributory negligence as a matter of law.”

I. The insistence of the defendant is that what precedes the paragraph in the petition wherein the ordinance is pleaded is only a general charge of negligence, and that the ordinance and the specifications of acts in violation of it are but specifications under the general charge and that plaintiff is limited to those specifications; and in support of that contention defendant cites a number of cases, first being McManamee v. Railroad, 135 Mo. 440, wherein at page 447 this court said: ‘ ‘ The practice is well established in this State that when a general allegation of negligence, like this, is followed by an enumeration and averment of specific acts of negligence, the plaintiff will he confined to the negligence specifically assigned.”

That rule of interpretation is not a technical rule applicable only to pleading, but is a general rule of construction. A general charge of misconduct followed by specifications of particular acts is, as a general rule, merged into the specifications, or rather the specifications are deemed as explaining what the general charge is intended to mean. That is only the converse of the ejusdem generis rule of construction, which is a rule of common sense and is aimed to ascertain the true intention of the writer of the document then being construed.

In a petition in which a personal injury is alleged - to have been suffered through the negligence of the defendant the pleader is not limited to one act of negligence, or to two or more acts of the same kind, hut may plead in the same count several acts, not inconsistent with each other, either of which or all of which together might have produced the result complained of. That form of pleading is not in violation of the rule that not more than one cause of action can he stated in one count, because each and all the several acts pleaded point to but one injury, one wrong or, in technical language, one injuria, for which reparation is asked. It is, therefore, competent to include in one count an act or acts constituting negligence at common law and an act or acts of negligence under a statute or ordinance all pointing to the same result. Section 629, Revised Statutes 1899, Ann. Stat., p. 652, is: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall he liberally construed, with a view to ^substantial justice between the parties. ’ ’ Keeping that mandate in mind when we come to applying the rule of construction we are now considering to a petition like the one in the McManamee case above mentioned and like the one in the case at bar, our safe course “with a view to substantial justice” is to ascertain what was the intention of the pleader, did he mean to charge two acts of negligence, one at common law and one under the ordinance, or did he mean to charge one act alone and that one under the ordinance?

But in endeavoring to give effect to the intention of the pleader we must not overlook the fact that what he says in his pleading is the tendering of an issue to his adversary and he must say what he has to say in terms that his adversary will understand. Therefore in construing the petition the inquiry must not stop at what the pleader probably intended, as that intention may be gathered from his conduct when the trial is over, but also what the defendant had reason to understand from the petition was the issue tendered.

So it may be said of the petition in the case now to be passed under judgment, if the facts stated in the petition, preceding those concerning the ordinance and the acts in violation thereof, are not to be understood as intended by the pleader to state a case of negligence at common láw, then, we must understand that he intended to plead but one act of negligence and that one the violation of the ordinance. The first question therefore is, what was the intention of the pleader as shown by the petition? Looking to that part of the petition which pleads the ordinance and the acts in violation of its terms we see that they are sufficient in themselves without reference to the preceding paragraph to constitute a cause of action, therefore there is no necessity for referring them back as specifications under the supposed common law'charge. The statements concerning the ordinance and the acts in violation thereof are not aided by reference to the preceding paragraph, because every fact stated in that paragraph which might be deemed necessary to complete the charge of negligence under the ordinance, is industriously repeated in the next succeeding paragraph pleading the ordinance. If therefore the first paragraph does not show an intention to state facts constituting a common law act of negligence it is a useless clause and could be stricken out of the petition without impairing its force. Then why is it in the petition? What did the pleader intend by it? What must the defendant have understood from reading it that the plaintiff meant by it? We are satisfied that he intended by it to plead an act of negligence under the common law, and then follow it by pleading an act of negligence under the oi'dinance, and we think the defendant must also have so understood it.

But even if he did intend to plead a common law act of negligence the question still remains, did he accomplish what he intended? On this question, Thompson on Negligence, vol. 6,'page 488, says: “If the pleading fairly informs the opposite party of what he is called upon to meet, and the specific acts of negligence are followed by a general statement that they were negligently done; or if it fails, to state these facts with particularity and the opposite party nevertheless fails to claim a surprise or take the necessary steps to extricate himself from the difficulty — there ought not to be much trouble about the question. ’ ’

The petition in this case says that plaintiff was standing in the street where, under the circumstances stated, she had a right to be, “when defendant, by its agents and servants, voluntarily ran a team of horses attached to a vehicle into and against the plaintiff; said horses knocking the plaintiff down and trampling her under their feet thereby severely wounding and injuring plaintiff; that the injury to plaintiff was due to the .carelessness and negligence of defendant’s agent in driving said horses attached to said vehicle at the time and place aforesaid and in violently running into and against plaintiff. ’ ’ In what respect is that declaration wanting in specification? It describes the situation, the plaintiff’s position and the environments and then says that the defendant drove its horses against her violently, knocking her down and trampling on her, and that it was due to the driver’s negligence in driving the horses. What other act could she specify? Driving a team of horses at rapid gait into a narrow space where people are standing in plain view of the driver, is prima-facie evidence of negligence and the statement of snch acts accompanied with a charge of negligence is a specification of acts of negligence. Such is the substance of the statements in the petition in this case in stating’ the act of negligence under the common law. We do not see what more the plaintiff could have said than she did say to make out a charge of common law negligence. The trial court seems to have so construed the petition, because it refused to give a general peremptory instruction, but limited it to the specific ground that plaintiff was guilty of contributory negligence. We hold that the petition sufficiently states a case of negligence under the common law, as well as under the ordinance.

II. Was the court justified in taking the case from the jury on the ground of the plaintiff’s supposed contributory negligence ?

The answer to that question is to be found in the evidence showing whether not the plaintiff saw the horses and carriage coming when they were so near and coming in such a manner that she had cause to apprehend that they would run against her unless she fled out of the way. The natural instinct of self-preservation is almost a conclusive answer to that question. Can we imagine a girl seventeen years old, in her right senses, seeing a team of horses coming at a rapid gait, aiming to pass through a narrow space where she was standing, threatening injury to her if she did not get out of the way, yet standing* there deliberately until she was run over and trampled under the feet of the horses? It is almost beyond belief; it is certainly beyond reasonable expectation. Yet that is the contention, and that is what the contributory negligence theory is based on.

The evidence showed that this plaintiff and her sister had stopped at the northwest corner of Ninth and Olive streets to take a west-bound street car on Olive street. The sister testified that looking' east, from which direction the car was expected, she saw the carriage coming when it was just east of Eighth street, it was being driven rapidly, she did not see it or notice it any more until the horses struck her sister and knocked her down. As she saw the ear draw near she and her sister, the plaintiff, stepped off of the sidewalk and stood waiting for the car between the curb and the railroad track four or five feet from the track. Witness was standing about a car’s length from the west crossing of Ninth street, the plaintiff about ten feet further east. There were several other persons standing there apparently to board the car, and as it approached the horses drawing the carriage came fast into the space between the track and the curb, a man who was standing between her and the plaintiff jumped on the front platform of the car and in doing so collided with the witness and knocked her down, the horses collided with the plaintiff and knocked her down, some one in the street seized the horses and stopped them. Cross-examination: “Q. You did not see those horses a little while before they struck her? A. I saw them just as they struck her. Q. So that you are not in a position to tell how they were moving at that time? A. Surely I saw them driving fast. Q. How long? A. From the time they left Eighth street until they struck her. Q. But you know the rate at that street, you say? A. Yes, sir, I was not looking all the time at the horses. Q. Off and on you saw them approaching rapidly from the time you saw them at Eighth street until the time of the accident? A. I never noticed any more only I saw that he was driving very fast. Q. Did you notice them at all, is what I want to find out, between the time that you first saw them at Eighth street and the time of the accident? A. I didn’t see them until they struck my sister; drove up over her.”

The plaintiff herself testified to the situation in which she and her sister were standing waiting for the car substantially as her sister had testified. She said that she noticed the victoria coming, over half a block away, driving at a very fast speed. “The victoria came on before I knew it was up by me, I noticed it half a block away driving at a fast speed. Before I knew it was up by me, it came along and hit my left shoulder and knocked me down and knocked my light knee cap off.” On cross-examination: “Q. Well as you were standing there you say you noticed the victoria a half a block away from you coming at a rapid rate? A. Yes, sir. Q. You noticed it coming at a rapid rate at Ninth street? A. It knocked me down. Q. As it passed over Ninth street there, did you notice it? A. It was driving very rapidly all the time. . . . Q. While standing there you noticed the victoria coming westwardly at a rapid rate? A. Yes, sir. Q. And it continued to come at a rapid rate until the horses struck you? A. Yes, sir. . . . Q. You still stood there between the tracks and the curb? A. Oh, yes. Q. Now can you tell us, did you see this team when it was fifteen or twenty feet east of you? A. I saw it over half a block away. Q. When was the last time you saw it? A. Just as it was up by me and knocked me down.”

That is the evidence on which it is insisted the plaintiff saw the victoria as it was coming fast all the way from near Eighth street until it was driven into the narrow space between the track and the curb where plaintiff was standing. She testified in chief that she saw the victoria over half a block away coming fast, and “before I knew, it was up by me, it came along and hit my left shoulder.” If she had been looking at it all the way it would not have been up by her and hit her before she knew it. The cross-examination was very skillful, and was aimed to bring out the fact that she had seen it all the way, hut the nearest she came to so saying was in answer to a leading question, “And it continued to come at a rapid rate until the horses struck you? Yes, sir.” Take that in connection with her statement on that point in chief and with what further followed in the cross-examination: “Bid you see this team when it was fifteen or twenty feet east of you? I saw it over half a block away. When was the last time you saw it? Just as it was up by me and knocked me down.” She was justified in answering yes to the leading question if the horses were not moving at a rapid gait all the while from the time she first saw them until they struck her, because she saw that they were going fast when she first saw them and were going fast when they struck her, and she had a right to conclude that they went fast all the while, but it was a mere conclusion, she never meant to say that she saw them all the way and it is unreasonable to presume that she did; if she had seen them coming against her and realized her danger she would not have stood there and been run over. It would be a forced construction put on her words to say that she intended to convey the idea that she saw the horses and carriage all the while; she did not say so, she only mentioned two points at which she saw them, one when they were near Eighth street, the other when they struck her.

But having seen the team when it was a half a block or more away, was she failing in her duty to' use ordinary care for her own safety by not keeping her eye constantly on the team so as to be ready to run to the sidewalk when the danger became imminent? No, she had a right to presume that the driver would slacken his speed and either turn aside or else stop before running into the narrow space where he saw people standing. The law laid upon her no duty to anticipate that the man would behave in that way.

We are of the opinion that the plaintiff neither saw the danger nor failed to nse ordinary care to discover it. The court erred in its judgment that the plaintiff was guilty of contributory negligence.

III. The testimony of one of the plaintiff’s witnesses, the man who jumped on the car in such haste that he knocked the plaintiff’s sister down in doing so, was read from the record of his., evidence taken at a former trial of this cause. In the course of his examination was this: “Q. What do you say about the driver? A. The driver did not seem to have good control of the horses.” On motion of defendant the answer to that question was stricken out. There was no error in that ruling, because that answer was irrelevant. There was no charge in the petition that the horses had got beyond the control of the driver, on the contrary the prevalent idea in the plaintiff’s case was that the accident occurred through the driver’s fault, not that it was from a cause beyond his control. He also testified that he saw the team coming very rapidly and 1 ‘ to avoid the team I jumped on the front end of the car instead of getting on in the usual way.” The court on motion of defendant struck out the words “to avoid the team.” This man was one of the persons standing in the street intending to board the car, he stood between the plaintiff on his left and her sister on his right. It seems that the car and the team of horses reached the place about the same time, the witness said that he saw the horses coming very fast, he jumped on the front end of the car in what he said was not the usual way, and it appears from the evidence of other witnesses that he was so hasty in his act that he struck against the plaintiff’s sister and knocked her down. Why did he behave in that unusual manner? If it was because he feared being struck by the team that would indicate that in his opinion there was a sudden danger. But suppose instead of saying what he did say he had said that he was standing on the sidewalk, saw the horses coming very rapidly into the space where people were standing, and that in his opinion the horses were coming in a manner to threaten danger to the people there, would his opinion be competent evidence? We think not, and it is immaterial whether the opinion he expressed in one form or another. The situation produced hy the coming of the horses on the scene was either so dangerous that the court would he justified in so declaring, in which case no outside opinion evidence would he needed, or else the question of whether it was so or not was one for the jury, to he determined, not hy the opinion of witnesses, hut hy a consideration of the facts' and circumstances shown hy the evidence.

There was no error in striking out those words.

The judgment is reversed and the cause remanded to the circuit court to he re-tried according to the law as herein expressed.

Lamm and Graves, JJconcur; Woodson, J., concurs in the result and in all except paragraph 3, as to which he files a separate opinion.

SEPARATE OPINION.

WOODSON, J.

I concur in the first and second paragraphs of the opinion, hut dissent as to the third, for the reason that the testimony of the witness as to why he jumped on the car in such haste, so as to knock plaintiff’s sister down, characterized his act and the situation as it then and there existed, which cannot speak for themselves, hut could only he shown hy oral testimony.

To illustrate, suppose at the instant of the accident the witness had exclaimed, “I jumped on the car in order to prevent being struck by the horses.” Clearly that expression would have been admissible as constituting a part of the res gestae.

It is apparent the expression would not be admissible simply because he uttered it, but because it characterized his act and showed why he acted in such haste, namely, the dangers he and the other persons standing there were subjected to, caused by the reckless driving. In the case at bar his act bespoke his fear, and not his words, as in the supposed case. Both, however, stand upon the same footing as .characterizing his act. That which caused the act is the soul of the act and cannot be understood or explained without first ascertaining the cause or motive which prompted it. I therefore am of the opinion that the testimony was competent, and should have been admitted and that the judgment should be reversed.


author: WOODSON, J.

text:
    JOHN M. BAKER et al. v. EVA K. THOMPSON et al., Appellants.
    Division One,
    November 25, 1908.
    1. LIMITATIONS: Notice to Wife’s Husband. If the husband of the wife who owned certain land was her agent in looking after and managing it, and practically all the possessory acts performed upon the parcel in suit to which she had no paper title were performed by him, notice to him of an arrangement entered into by prior adjoining owners that, for purposes of convenience, the wife’s grantor should use the small parcel in suit in exchange for the use of a like parcel by the other adjoining owner,- to be terminated at any time by either party thereto, was notice to her.
    2. -: -: Evidence of Agency. Where there is substantial evidence that the husband was the agent of the wife in the management and control of her farm, the court did not err in submitting the question of agency to the jury, and in instructin'g them that if he or she through'him had notice of the prior arrangement between her grantor and the adjoining owner for the use by the adjoining owner of the small parcel of her land in exchange for the use by her grantor of the small parcel of the adjoining owner’s land in controversy, and that said arrangement was to be terminated at any time by either party, then she must by some unequivocal act have brought to the knowledge of the adjoining owner that such arrangement was terminated before the Statute of Limitations would begin to run in her favor.
    3. -: Necessary Proof. Before the Statute of Limitations can be put in motion the party claiming the benefit thereof must show an intention, either by words or acts, to claim the title to the land by adverse possession. Either actual occupancy, or constructive possession under colorable title, must be shown.
    4. -: Not Claimed: Title by Will. Where the devisee does not claim title to the disputed parcel by adverse possession, but claims it solely by her father’s will, and that will does not devise the parcel to her, although it was at the time inclosed with the land actually devised to her, as a part thereof, she cannot recover or retain such parcel. ■
    Appeal from Clinton Circuit Court. — Hon. A. D. Burnes, Judge.
    Affirmed.

      F. B. Ellis for appellants.
    (1) The court erred in permitting conversation to he introduced in evidence of John B. Thompson concerning the boundary lines of his wife’s farm in her absence. These conversations were prejudicial and improper. The conversation of third parties of tlie husband concerning the title of his wife’s land or the possession thereof are never admissible against the wife in a suit for the possession of her lands. John B. Thompson was the codefendant of his wife, artistically made so by ingeniousness of plaintiffs ’ counsel. And the admissions of a party to a suit confessing away the title of his .codefendant are never admissible against his codefendant for that purpose. The conversations of Thompson with Shepherd, Guyer and Baker were in the absence of Mrs. Thompson. Ham-bright v. Brockman, 59 Mo. 57; Darrett v. Donnelly, 38 Mo. 492. No declarations of John B. Thompson concerning his wife’s land could bind her even while he was living on the premises with her. Even his deed could not have affected her. Certainly he could not do by conversations with third parties what he could not do by deed. Fox v. Windes, 127 Mo. 512; Mueller v. Kaessmann, 84 Mo. 318; Lemons v. McKinney, 162 Mo. 530. (2) Plaintiffs’ cause of action was and had been for many years barred by the Statute of Limitations. She knew nothing of the arrangements of Shepherd, Guyer, Kirk and others. She went into the possession of this land claiming to own the same since July, 1887. Her possession according to the undisputed evidence was adverse to all the world. She used this piece of land in connection with the rest of her farm. Adverse possession will entitle the defendants to a title. Warfield v. Lindell, 38 Mo. 562; Scruggs v. Scruggs, 43 Mo. 142; Fugate v. Pierce, 49 Mo. 441; Mustek v. Barney, 49 Mo. 458; Key v. Jennings, 66 Mo. 367.

      W. S. Herndon and H. G. Hall for respondents.
    (1) The possession of defendant was a continuation of the possession of Kirk, her father, and Kirk’s possession was a continuation of the Shepherd possession of the four-acre tract, and consequently defendant held all the time under the agreement made with Guyer, the original owner, and could not become adverse without an unequivocal act of hostility thereto brought home to Guyer. Hamilton v. Boggess, 63 Mo. 233; Budd v. Collins, 69 Mo. 129'. (2) There, was a privity of estate and in law between defendant and Kirk in respect to the possession of the land in controversy. Wash, on Real Prop. (3 Ed.), p. 263; 23 Am. and Eng. Ency. Law (2, Ed.), 101; State ex rel. v. St. Louis, 145 Mo. 567; Haley v. Bagby, 37 Mo. 364; Meier v. Meier, 105 Mo. 432; Hurt v. Adams, 86 Mo. App. 80; Pitzman v. Boyce, 111 Mo. 392. (3) The possession of the land in controversy by Shepherd was with the consent of the owner, Michael Buyer. Shepherd sold to William Kirk, who took possession under Shepherd. Kirk died in possession and his daughter, Mrs. Thompson, and her husband went into possession under the will of her father. The possession was friendly at its inception and with the consent of the owner and in order to render the possession adverse, the party in possession must, by some unequivocal act, notify the owner fhat he holds adversely. Neither Shepherd, Kirk or either of the Thompsons, ever notified Guyer that they claimed the land, and the verdict is for the right party. Gordon v. Eans, 97 Mo. 112; Hafidlan v. McManus, 100' Mo. 124; Meier v. Meier, 105 Mo. 411; Downing v. Dinwiddie, 132 Mo. 92; Hunniwell v. Adams, 153 Mo. 440; Stevenson v. Black, 168 Mo. 549; McCune v. Goodwillie, 204 Mo. 339; Coberly v. Coberly, 189 Mo. 16; Comstock v. Eastwood, 108 Mo. 41; Harper v. Morse, 114 Mo. 324. (4) The relation of landlord and tenant will not be inferred from occupation, if the relative positions of the parties to each other can be referred to any other distinct cause. Taylor, Landlord and Tenant (9 Ed.), sec. 25; Constant v. Abell, 26 Mo. 181; Coffman v. Hach, 24 Mo. 496. In this case the possession of Shepherd, Kirk and Thompson was that of licensee, determinable by a mere demand, and ejectment will lie without notice to quit. Taylor, Landlord and Tenant (9 Ed.), sec. 25. (5) The wife being sui juris, as to the land received from her father by will, could appoint an agent therefor. McFarland v. Heim, 127 Mo. 334; Turner v. Sham, 96 Mo. 28; 6 Ency- Ev., p. 864. (6) Agency may be proved by circumstantial evidence. 10 Ency. Ev., p. 21; Cusno v. Bowser Mill Co., 106 Mo. App. 236; Mosby v. McKee, 91 Mo. App1. 500; Haubert v. R.ea & Page Mill Co., 77 Mo. App. 672; Sharp v. Knox, 48 Mo. App. 169; Robertson v. Clevinger, 111 Mo. App. 622; Hull v. Jones, 69 Mo. 587; Hoppe v. Saylor, 53 Mo. App. 4; Johnson v. Hurley, 115 Mo. 513. (7) Defendant, John B. Thompson, says in his answer that he is in possession of the land as the tenant of his wife. The evidence fails to show the existence of the relation of landlord and tenant, but it does show that he was in possession as the husband of his codefendant, Eva K. Thompson. This he had a right to under the law. She .could only gain title by adverse possession, while they lived together, by his possession, and notice to him would, of itself, be notice to her — if any notice was required. Evans v. 'Kunz, 128 Mo. 679; Flesh v. Lindsay, 115 Mo. 1; Peck v. Lockridge, 97 Mo. 549; Mueller v. Kaessmann, 84 Mo. 318; Gray v. Dryden, 97 Mo. 106; Kanaga v. Railroad, 76 Mo. 214.
   WOODSON, J.

This is an ejectment suit, instituted by plaintiffs against the defendants in the circuit court of Clinton county, to recover the possession of about four acres of land lying in the southwest corner of the' northwest quarter of the southeast quarter of section 14, township 55, range 32.

The petition is in the usual form, and the answer was a general denial and a plea of the ten-year Statute of limitations. The reply was a general denial of the new matter stated in the answer. A trial was had before the court and jury, which resulted in a verdict and judgment for the plaintiffs, and after taking the proper preliminary steps, the defendants duly appealed the cause to this court.

The facts of the case are few and simple, and most of them are undisputed.

The following plat introduced in evidence shows the tract of land sued for, and sheds much light upon the disputed issues involved in the case.

A — Land in Controversy.

B — Thompson land in Guyer’s field.

In the year 1885 Charles "W. Shepherd owned the southwest quarter of the southwest quarter of section 14, township' 55, range 32 (which we will hereafter call the “south forty”), and at the same time Michael Gu3rer owned the northwest quarter of the southwest quarter of same section, which lies immediately north of the “south forty” (which will hereafter be designated the “north forty”). Shepherd was a son-in-law of G-uyer, and by an agreement entered into by and between them Shepherd fenced in and occupied the tract of land in controversy, and left about the same amount of land in the northeast corner of the “south forty” in Guyer’s possession; and it was also agreed between them that this arrangement might be terminated at any time by either party thereto' and the fence put back on the true line between the two forties. The location of the railroad and branch through their lands, taken in connection with the boggy and miry condition of soil in and near the branch, suggested and induced both of them to enter into said arrangement and construct the fences as above stated, which was for their mutual convenience and benefit.

Shepherd also owned the quarter section just west of the two forties and Guyer owned the lands on the east side thereof. A year or so after this arrangement had been entered into between them and after the fences had been constructed in pursuance of that agreement, Shepherd sold and conveyed his entire land to William Kirk by proper deed of conveyance. The latter went into possession and occupied, the land until his death, which occurred something less than a year afterwards. By his last will Kirk gave all of his land to his daughter Eva K. Thompson, one of the defendants, for her sole and separate use. Mrs. Thompson rented the land to various persons up to about the year 1895 and collected the rents therefor. About the- year 1895 she, with her husband and children, moved upon the land and have occupied and resided there ever since. The land in controversy was in the possession of Shepherd until he sold to Kirk, was in Kirk until his death, and was in the possession of Mrs. Thompson and her tenants up to the time of the bringing of this suit. John B. Thompson, her husband, and one of the defendants, has occupied the farm with her ever since they moved there in 1895, but he states in his separate answer that he has no interest in the land in controversy except as the tenant of his wife, Eva K. Thompson. The evidence, however, fails to show that she ever at any time rented the laud to him. The “south forty” has been assessed to Mrs. Thompson and the taxes paid by her ever since it was willed to her, and the “north forty” has been assessed to Michael G-uyer and the taxes paid by him from 1872 until this suit was brought. In February, 1904, Michael Buyer sold the “north forty” to the plaintiffs and executed a deed -conveying the same to them.

All of the foregoing facts are practically undisputed, and the evidence for plaintiffs tended to prove that the plaintiff John M. Baker went to the defendant John B. Thompson and told him of his purchase, and requested him to show to him the line running east and west between the south and north forties, and that in pursuance to that request Thompson went down to the land and pointed out to Baker its location. This, however, was denied by Thompson. Soon after this Baker moved the fence back on the true line dividing the north and south forty, leaving the land in the northeast corner of the “south forty” in Thompson’s enclosure and put back the land in controversy in Baker’s enclosure. At the time Shepherd sold to Kirk he told the latter of the arrangement between him and Guyer regarding the occupancy of the two small tracts of land, and that the understanding was that either of them could, at will, move the fences back on the true line. The great weight of the evidence shows that John B. Thompson knew of this arrangement, and many facts and circumstances from which it might be reasonably inferred that Mrs. Thompson also knew of it, though each of them deny all knowledge of the said arrangement. Her brothers and all other parties interested in the premises knew of it. The evidence also tended to show that John B. Thomp1son was the agent of his wife in looking after and managing her farm, and that practically all of the possessory acts performed upon the land in suit were performed by him. He looked after the fences and water gaps and repaired them whenever necessary, and by permission from Guyer he broke up- and put in cultivation the land in question. The record fails to show that Mrs. Thompson personally performed any acts indicating ownership of this land, except to take' and hold the possession of the entire tract as enclosed when she acquired title to the “south forty” through her father’s will.

The evidence for Mrs. Thompson -tended to showv that she had no knowledge whatever of the existence of the arrangement between Shepherd and Guyer regard- t ing the land in controversy.

"Whatever additional facts may be necessary for a proper understanding of the case will be stated in the opinion.

I. The cause was submitted to the jury on the theory that if they found from the evidence that Mrs. Thompson and her father, William Kirk, had notice- of the arrangement made between Shepherd and Guyer regarding the land, then the appellants must have by some unequivocal act brought to the knowledge of Guyer that they claimed the land as their own before the Statute of Limitations would begin to run against the respondents; and that if they believed John B. Thompson was the agent of his wife in the- management and control of the land, then notice to- him would be notice to her.

It is first insisted that the action of the trial court in admitting evidence of conversations abeged to- have taken place between John B. Thompson and various persons interested in the matter regarding the boundary lines of his wife’s premises during her absence is reversible error.

Ordinarily the acts and words of the husband regarding his wife’s -property are no more binding upon her than they would be upon an entire stranger. This is academic and was so recognized by counsel for respondents; and in order to- make his acts and words binding upon her, evidence was introduced tending to prove he was her agent in the premises. The record discloses the fact that the “south forty” was her sole and separate estate, and even at common law she could legally appoint an agent to manage and control it for her. [MacFarland v. Heim, 127 Mo. 334.]

But in order to escape this rule counsel for appellants earnestly insists that the record fails to disclose any evidence of agency. After a careful reading of this entire record, we are unable to lend our concurrence to that insistence. There is a great mass of testimony bearing upon that question, and while it is not as direct and clear as it might be, yet we are fully satisfied that, when taken as a whole with all the inferences which may be reasonably drawn therefrom, it constituted sufficient evidence upon which to submit that question to the jury. [Hull v. Jones, 69 Mo. 587.] The finding of the jury that the agency existed is conclusive upon this court, because it is supported by substantial evidence. We are, therefore, of the opinion that the action of the court in admitting that evidence was not error.

We have carefully considered the instructions given by the court for the respective parties. They, in our opinion, properly and fairly presented the law of the case to the jury; and we have no hesitancy in saying that their verdict is supported by the great preponderance of the evidence.

II. But there is an additional valid reason why this judgment should be affirmed, and that is the record nowhere discloses any written or oral agreement or arrangement between Mrs. Thompson and her father regarding the land in question. He made no adverse claims to the land and in no manner whatever authorized her to take possession of and occupy the same. That being true, then it must be conceded that she acquired no legal or colorable title to this land from her father, William Kirk. So, in the light of the undisputed facts of this case her title must be determined wholly independent of her father’s will and his possession of the land in dispute. So, if she has title to these four acres, it is because sbe has acquired title thereto by acts of real occupancy thereof for a period of ten years, unaided by paper or colorable title. Now, what are the facts regarding that matter as disclosed by this record? They are practically undisputed and are as follows:

Upon the death of William Kirk, the father of Mrs. Thompson, she, through her tenants, took possession of and occupied the farm willed to her, which consisted of the “south forty” and other lands. She also at the same time and by the same tenants took possession of and occupied the four acres in controversy, which were inclosed with the “south forty.” She testified to and insisted throughout her entire testimony that she thought at all times that these four acres of land were willed to her by her father and that she owned the legal title thereto under and by virtue of the will. The following is almost a literal copy of her testimony upon that subject:

“Q. Now, after your father’s death and when you moved on that place didn’t you notice that this fence there on the north side of your forty — your house is on this forty? A. Yes, sir.
“Q. You noticed that fence didn’t run. straight but crooked in around next to the railroad, didn’t you? You knew that fence wasn’t on a straight line across the forty acres? A. No, sir, it wasn’t right straight.
“Q. You saw the condition of the fence there? A. Yes, sir.
. “Q. You heard your father’s will read soon after his death. A. Yes, sir.
“Q. You knew when you saw this fence in the condition it was in that you had land there that was not described in that will, did you not? A. I never thought anything about it. I never claimed only what was in my enclosure.
‘ ‘ Q. Did yon claim this piece of land south of the railroad? A. I claimed that in my enclosure.
“Q. Who did you make that claim to? A. Well, in my own family always. I didn’t have to make my claim. I always thought I owned it and they always believed the same.
"Q. You thought, notwithstanding that fact that the will gave you this forty, that you owned the other? A. I never claimed any inside of Mr. Guyer’s field.
"Q. Did you ever tell Mr. Guyer that you claimed this land in controversy? A. I never told him, for he never said nothing to me about it. I never had a word about it.
££Q. You never told him you claimed this land? A. I never told him and he never told me.
££Q. This fence was in the same condition it was when you went there clear up to the time Mr. Baker' moved it on the northeast corner of the forty? A. The fence was the same way from the time I moved there.
£‘ Q. Just like it was when your father lived there? A. Yes, sir.
££Q. Now, you understand that part of this forty-acre tract in the description of the land which your father willed to you was in Mr. Guyer’s pasture? You testified to that fact before, didn’t you? A. No, sir.
££Q. Didn’t you say'that part of this forty-acre tract was in Mr. Guyer’s pasture? A. I never claimed any in Mr. Guyer’s pasture.
££Q. I didn’t ask you that, Mrs. Thompson. There was part of your forty-acre tract in his pasture. A. If there was I never knew it.
££Q. This is part of this forty acres here that Mr. Guyer sold to Mr. Baker, you know that, don’t you? A. They are claiming four acres on my side they say. He says four acres of mine was on him and four acres of his on mine, but I never knew it.
“Q. I will ask you whether or not yon knew that part of this forty-acre tract on which your house is situated, if before Mr. Baker moved his fence part of that forty was over in Mr. Buyer’s pasture? A. No, sir.
“ Q. Didn’t you know that part of your land was in liis pasture? A. No, sir, I did not.
“Q. Now, you testified in this case before. I will ask you if this' question was asked you and if you made this answer: ‘I believe you answered this question once, Mrs. Thompson, but to be sure about it I will ask you again: Did you know before this suit was commenced that this strip' of land in the dotted line heretofore in the possession of Mr. Buyer was really willed to you? Did you know that before this suit was brought’? Ans. ‘I supposed it was willed to me.’ Was that question asked and did you make that answer? A. Well, I will have to read it again, please?
“Q. ‘I believe you answered this question once, Mrs. Thompson, but to be sure about it I will ask you again: Did you know before this suit was commenced that this strip of land in the dotted line heretofore in the possession of Mr. Buyer was really willed to you? Did you know that before this suit was brought?’ Ans. ‘I supposed it was willed to me. ’ A. No, what was in Mr. Buyer’s field I didn’t think was willed to me. Nothing only on my side.
“Q. But did you make that answer before? A. I don’t remember it if I did.
“Q. I will ask you if you claim these tracts, this one and this( one over here? A. I don’t claim anything on Mr. Buyer’s side.
“Q. They are both in your enclosure now. A. I don’t claim the piece that Mr. Baker threw on my side.
“Q. That was willed to you? A. What ivas on my side I supposed was willed to me.
“Q. Don’t you know that you never have paid the taxes on this four acres over here? A. I supposed I was paying taxes on my side.
‘ ‘ Q. I will ask you if you ever have paid the taxes on this four acres in controversy? Now, what is your answer? A. Well, I don’t know as I did on his side.
‘ ‘ Q. I will ask you if you ever, at any time,, paid the taxes on this northwest of the southwest? This forty acres immediately north of the forty your father willed to you? A. Well, I could not tell you whether taxes was paid on his side or not.
“Q. Mr. Thompson gave in this land to the assessor, didn’t he? A. Yes, sir, he did.
“Q. And he paid the taxes, did he not? A. Yes, sir, with my permission.
“Q. He paid them at all times with your permission, did he? Did you direct him to pay the taxes on the land in Mr. Guyer’s field? A. No, I never directed him to pay on Mr. Guyer’s side.
“ Q. He gave the land in to the assessor for you, did he not? A. I suppose he did.
“Q. And signed his name to the assessment list? Did either you or Mr. Thompson ever give this four-acre in controversy in to the assessor? A. On Mr. Guyer’s side?
“Q. The four acres in controversy here, on your side of the fence? A. Well, I don’t know.
“Q. How is that? A. I don’t know.”

We have copied thus extensively from the testimony of Mrs. Thompson for the purpose of showing that she at no time claimed possession or title to the land in controversy by adverse possession, but her sole claim has at all times been, as before stated, that she acquired title to this land under and by virtue of her father’s will, and that in pursuance to that title she took possession of and has occupied it ever since.

We do not wish to he understood as holding that a person may not at one and the same time claim or acquire title to real estate both by deed or will and adverse possession, but we do hold that the proof of the one without more, as is true in this case, will not support the other. In the case at bar appellant’s own evidence shows that her sole claim to the land was under and by virtue of her father’s will, and when the undisputed evidence shows that the land is not embraced within the terms of the will, then her title in that regard must fail; and when we consider the plea of the Statute of Limitations we fail to find a scintilla of evidence which tends in the remotest degree to show she claimed this land by adverse possession. That being true her whole case must fall to the ground for want of evidence to support it'upon either theory of her defense.

The law of this State is well settled to the effect that before the Statute of Limitations can be put into operation the party claiming- the benefit thereof must show an intention either by word or acts to- claim the title to the land by adverse possession. Either actual occupancy or constructive possession under colorable title must be shown. [DeBernardi v. McElroy, 110 Mo. 650.]

Finding no error in the record prejudicial to the rights of the appellants, the judgment should be affirmed.

It is so ordered.

All concur.