author: SMALL, C.

text:
    BATES H. McFARLAND and PAUL V. JANIS, Trustees for HENRY B. GRAHAM and GEORGINE M. GRAHAM, Appellants, v. JOHN E. BISHOP and AMERICAN TRUST COMPANY, Trustees for HENRY B. GRAHAM, DOROTHY M. GRAHAM, et al.
    Division One,
    June 2, 1920.
    1. EQUITY SUIT: Conclusion on Facts: Deference to Chancellor. The rule of the Supreme Court is to defer somewhat to the findings of the trial court as to the facts of an equity case, and not to disturb such findings unless clearly satisfied that they are against the weight of the evidence; and the rule is especially applicable where there is a great volume of oral testimony conflicting on every material issue in the case.
    2. TRUST AGREEMENT: Fraud and Mistake in Execution: Intoxication: Aunullment. The weight of the evidence in this case shows that no fraud or misrepresentation was practiced by any one upon the maker of an agreement by which he conveyed a large estate to trustees to be held and controlled for himself and his children; that though a hard drinker, he was not intoxicated when he executed it; that he was fully informed of its contents and made no mistake, and was not incapacitated by drink or otherwise, when he signed and delivered it; that he was fully informed that the trustees. he had selected would not act unless the clause making it revocable was stricken out, and consented to its elimination and then executed it; that owing to his dissipated habits his affairs were drifting towards bankruptcy, and he wisely determined to turn his property over to competent and responsible trustees to manage, control and hold, and thereby make certain the payment ®f his debts and a sufficient support for himself for life and the final enjoyment of the corpus by his children.

      3. -: Cash Commission. Where the trust agreement named a lawyer and a trust company as trustees, and provided that the lawyer was to receive a regular commission of two per cent and the trust company three per cent, and the lawyer informed the maker that the trust company demanded an additional cash commission of three thousand dollars, and the maker wrote them a joint letter authorizing them, “as an inducement and additional compensation for handling” the estate, to pay themselves three thousand dollars “in addition to the compensation provided in said contract,” the trust instrument was not in any wise impaired by the lawyer’s representations, although he did not tell the maker that he was to share in the additional commissions, for that was the natural inference to be drawn from the instrument itself.
    4. -: Mistake: Self-serving Declarations. Statements made by the maker of a trust agreement, before its execution, to third parties, in the absence of defendants, that he was going to place his property in the hands of trustees until his debts were paid and then it would be returned to him, were self-serving, and not competent on the theory that he made a mistake and did not know the instrument was irrevocable by its terms.
    5. -: Validity Under Statute: Subsequent Wife as Purchaser. Section 2880, Revised Statutes'1909, declaring a deed of gift or conveyance, in trust, “to the use of the person so making it,” “to be void as against creditors, existing and subsequent, and purchasers,” is not an enactment in favor of the maker of a trust agreement by which he conveys property to trustees, to hold and manage for his support and the payment of his debts, the corpus to be enjoyed by his children after his death. So far as such an agreement is a conveyance to the use of the maker, it would be void as to his creditors and purchasers, in a suit by them; but as to the remainder of the estate conveyed for the use of his children, the statute does not make it void, even as to creditors or purchasers. Hence, if the owner of property, after having executed such trust agreement, marries and he and his wife attempt by another trust agreement to revoke the former and to convey the bulk of the property to other trustees for his and her joint benefit, the statute is not available to such other trustees, in their suit, prosecuted more for the maker’s benefit than for either his creditors or his wife, even conceding her to be a purchaser, to have the first agreement annulled.
    6. -: Contingent Remainder: Created by Deed. Even though a deed of gift in trust for the benefit of the maker’s children gives to them only a contingent remainder, it is not for that reason void or ineffectual. A contingent remainder is an interest in real estate, and there is no reason why its owner cannot by deed give a contingent remainder therein to his children, or why the trust deed by which it is created should be deemed void or for the grant- or’s use,

      7. -: Vested Remainder: Postponed Use. A conveyance to trustees for the use of the grantor’s named children, to be enjoyed after his death, creates a vested remainder in them, and is not made contingent by the fact that it is to open to let in after-born children; nor is the vesting of the title postponed by the further fact that their enjoyment of the property is postponed until after the grantor’s death and until they reach the age of twenty-five years, for such provision postpones only their right to possession, and not the vesting of the title.
    8.--: --:' Annuity to Maker: Encumbrance. A deed of gift to trustees for the use of the grantor’s children after his death is not made contingent by the fact that an annuity to the grantor is made payable out of the principal. The annuity to him is but an encumbrance on the property, and simply makes the remainder to the children subject thereto.
    9. -: When Void As to Creditors and Purchasers: When Otherwise Valid. A deed of gift to trustees for the grantor’s support, the payment of his existing debts and the use of his children after his death, although valid in so far as it is a provision for his children, may be avoided by subsequent purchasers or subsequent creditors of the grantor, in so far and in so far only, as it is for his use; and in a proper proceeding, subsequent creditors or purchasers may reach and appropriate the annuity and the income which the instrument reserves to the grantor. But a deed of gift to trustees, without power of revocation, with remainder over, is valid, except as to the income or part reserved to the grantor, which is subject to the rights of creditors and purchasers. [Distinguishing Jamison v. Mississippi Valley Trust Co., 207 S. W. 788.]
    10. -: Remote Contingencies: Power of Equity. Remote contingencies that the grantor, because of sickness or accident, will need more than the monthly stipend named in the instrument for his support, neither alleged nor proven, will not authorize the setting aside of a deed of gift to trustees made in good faith for the benefit of his children. Especially should this be the ruling where the income is large, and the debts have for the most part been paid, and after they are fully paid the trustees are required to pay him the income during his life; and where, if such contingency should arise, it is not beyond the power of a court of equity to determine what amount the grantor would be entitled to for extraordinary expenses on account of sickness or personal injury.
    11. EQUITY: Relief Against Fraud or Mistake: Clean Hands: In Aid of Divorce. A court of equity will not set aside a voluntary deed of trust made by a married man to a trustee for the benefit of himself and his children, because by fraud or mistake it omitted certain clauses which he desired inserted, to enabe him to-carry out an agreement made with a married woman to marry anl provide for her, when he should he divorced from his wife and she should be divorced from her husband, such agreement being illegal. He who comes into equity for relief, must come with clean hands.
    Appeal from St. Louis City Circuit Court. — Eon. Win. T. Jones, Judge.
    Affirmed.

      Koerner, Fahey & Young and Jour dan, Bassieur é Pierce for appellants.
    (1) The instrument of May 23, 1916, is void as to creditors and purchasers under the provisions of Section 2880, Revised Statutes of Missouri, 1909. - Jamison v. Mississippi Yalley Trust Co., 207 S. W. 788; Bank v. Watkins, 126 Tenn. 453; Nolan v. Nolan, 218 Pa. 140; Mcllvaine v. Smith, 42 Mo. 58. (a) Such conveyances are void as to purchasers whether with or without notice. Lewiri on Trust (8 Ed.), p. 75, sec. 20; Underhill’s Law of Trust and Trustees (7 Ed.), pp. 114, 115. (b) Such conveyances are void as to purchasers whether théy are fraudulent or not. Jamison v. Mississippi Yalley Trust Co., 207 S. W. 788; Robinson v. Robards, 15 Mo. 466; Brooks v. Wimer, 20 M<^. 503 ;■ Walter v. Wimer, 24 Mo. 63. (c) The interests of Graham’s children under the instrument of May 23rd, are entirely contingent, just as were the interests of the children of Bell in the case of Jamison v. Mississippi Valley Trust Co., 207 S. W. 790. They are contingent'because the corpus of the estate is not reserved to the children, but may be expended by the trustees for Graham, and for his creditors. They are contingent because after Graham’s death the trustees are to pay the children only such sums, as in the judgment of the trustees, may be necessary until the children reach the age of twenty-five years. They are contingent on each child of Graham surviving his father and reaching the age of twenty-five years. Emerson v. Hughes, 110 Mo. 627; Godman v. Simmons, 113 Mo. 122; Buxton v. Kroeger, 219 Mo. 224; Eckle. v. Ryland, 256 Mo. 424; Emison v. Whittlesey, 55 Mo. 258; DeLassus v. Gate-wood, 71 Mo. 379; Warne v. Sorge, 258 Mo. 171. A vested remainder may be disposed of by sale during life or by will, as tbe interest of tbe children under this instrument obviously could not. Dougherty v. Thompson, 67 N. Y. Supp. 200; Oldaker v. Spikey, 210 S. W. 61. (2) The plaintiffs are purchasers in the right of Mrs. Graham and the subsequent creditors. Chilvers v. Rice, 196 111. 80; Bank of Commerce v. Chambers, 96 Mo. 459. (3) The court erred in ruling that the declarations of Graham made before and after the instrument of May 23rd was signed should be excluded as 1 ‘ self-serving. ” The court allowed the defendants to introduce evidence as to supposed conversations by Graham about this time,' but refused to allow the plaintiffs to show by various witnesses conversations between such witnesses and Graham in which Graham stated his plans and purposes before the instrument was signed, and in which he stated, after the instrument was signed, that he had made a temporary conveyance in trust. Such declarations were clearly competent. They do not violate the hearsay rule. They have rational probative value and are not excluded by any rule of evidenced 1 Wigmore on Evidence, p. 31, secs. 9, 10; 16 Cyc. 1146, 1176, 1183, 1184; 3 Wigmore on Evidence, secs. 1739, 1790; Mutual Life Ins.' Co. v. Hillmon, 145 U. S. 295; State v. Hayward, 62 Minn. 474; Commonwealth v. Trefethen, 157 Mass. 180; Wilson v. State, 33 Ark. 557; Mooney v. Olsom, 22 Kans. 69; Schailer v. Bumstead, 99 Mass'. 112; Cross v. Black, 9 Gill and J. 206; Rogers v. Wilson, 12 Amer. Dig. 62; Kyle v. Craig, 125 Cal. 107; State v. Abbott, 8 W. Va. 745; Thomas v. Wheeler, 47 Mo. 363; Allen v. Morris, 244 Mo. 357; Heynbrock v. Ilarmann, 256 Mo. 21; Minor v. Burton, 228 Mo. 558. An instrument signed under a mistake as to its contents is void. Essex v. Day, 52 Conn. 483; Smith v. Patterson, 53 Mo. App. 66; 16 Cyc.'68; Bleyer v. Bleyer, 219 Mo. 99; Raffel v. Safe Deposit Co., 100 Md. 141; Garnsey v. Munday, 24 N. J. Eq. 243. (4) An instrument that is signed by one who is suffering from the lond-continued excessive use of alcohol to such an extent that he does not understand the instrument is vbid. Longhead v. Commission Co., 64 Mo. App. 559; Rogers v. Warren, 75 Mo. App. 271; Mathis v. O’Brien, 137 Ky. 651; Hutcheson v. Tindall, 3 N. Y. Eq. 368; Freeman v. Dwiggin, 55 N. C. 162; Conant v. Jackson, 16 Vt. 335; Marshall v. Billingsly, 7 Ind. 250; Morrison v. McLeod, 22 N. C. 221; Calloway v. Witherspoon, 40 N. C. 128; Seoville v. Barrey, 40 Vt. 288; Hotchkiss v. Fortson, 15 Tenn. 67; Weeks v. Wortman, 84 Neb. 217. (5) Any conveyance made by a client to his attorney from which the attorney derives a profit is voidable and is open to the suspicion of fraud. Underhill’s Law of Trust and Trustees (7 Ed.), p. 98; Thompson v. Sterns, 19'5 S. W. 43; Thomas v. Turner, 87 Va. 1; Tyrrell v. Bank of London, 10 H. L. Cas. 44. (a) An attorney owes a duty of absolute loyalty to his client. If he allows his mind to be subjected to the influence of a secret profit, the client is not bound. Especially is this true where the conveyance is to the attorney in trust and without consideration. G-uinan v. Donnell, 201 Mo. 292; Witte v. Storm, 236 Mo. 470; Horner v. Spencer, 95 Pac. 575; Donelvan v. Compian, 20 C. C. A. 30; Montgomery v. Hundley, 205 Mo. 138, 11 L. R. A. (N. S.) 122; Bucher v. Hohl, 199 Mo. 327; Crumley v. Webb; 40 Mo. 444.. (b) A voluntary settlement of all of the grantor’s property without power of revocation is open to suspicion of undue advantage taken of the settler. Sims v. Brown, 252 Mo. 69; Perry on Trusts (6 Ed.), sec. 104; Everett v. Everett, L. R. 10 Eq. 405; Coutts v. Acworth, L. R. A. Eq. 588; Predieaus v. Lonsdale, 1. De G. J. & S. 433; Underhill’s Law of Trusts and Trustees (7 Ed.), p. 93. (c) Donations made between parties occupying a confidential relation will be watched with great jealously by the courts. Every presumption is against them. The burden of proof in such cases is on the grantee. Yosti v. Laughram, 49 Mo. 595; Bradshaw v. Yates, 67 Mo. 221.

      Wilfley, McIntyre, Nardin $ Nelson for respondents.
    (1) Section 2880, R. S., 1909, is not applicable to the trust agreement of May 23, 1916. The statute applies only to conveyances to the nse of the grantor, (a) The trust created by the instrument of May 23rd was for the benefit of Graham’s creditors, and for the benefit of Graham’s children, and to preserve Graham’s estate.' (b) Section 2880, applies only to voluntary conveyances and does not affect conveyances founded upon a valuable consideration. Eaton’s Admr. v. Perry, 29 Mo. 96; Robinson v. Robards, 15 Mo. 459; 18 C. J. pp. 163 and 164; Hutsell v. Crewse, 138 Mo. 1. (c) The instrument created a vested remainder in Graham’s children (Dorothy, Marjorie and Henry B.), subject to its opening to let in any after-born children. Waddell v. Waddell, 99 Mo. 338; Heady v. Hollman, 251 Mo. 632; Jones v. Waters, 17 Mo. 589,; Tindle v. Tindle, 167 Mo. 225; Tiedeman, Real Property (3 Ed.), sec. 302; Emerson v. Hughes, 110 Mo. 627; 18 C. J. p. 306; Gates v. Siebert, 157 Mo. 254; Warne v. Sorge, 258 Mo. Í62; 13 Cyc. 647; Buxton v. Kroeger, 219 Mo. 261; Doemer v. Doemer, 161 Mo.-399. (d) A conveyance in trust containing no power of revocation, but reserving* to the g*rantor or settler a life use of the property with a vested remainder over to certain persons or a class (as the settler’s children) is valid, even though his creditors may in a proper proceeding "reach the reserved life estate. See case note, 12 L. R. A. (N. S.) p. 370; Brown v. McGill, 87 Md. 161, 36 L. R. A. 806; Wentzell v. Powder-, 100 Md. 36; Pacific Natl. Bank v. Windrum, 133 Mass. 175; Schench v. Barnes, 156 N. T. 316, 45 L. R. A. 395: Sloane v. Birdsall, 58 Hun, 317. (2) The instrument of May 23, 1916, is valid, although Graham at the time may have been addicted to the use of alcohol. To render an instrument void on the ground of excessive use of alcohol it must clearly appear that there has been a total dethronement of the reason and understanding at the time the instrument is signed. 14 Cyc. 1105; Pomeroy’s Equity Jurisprudence, sec. 949; 6 R. C. L. p. 598; Right v. Fisher, 65 Mich. 275; Case Threshing Machine Co. v. Myers, 9 L. R. A. (N. S.) 970; Eaton’s Administrator v. Perry, 29 Mo. 96; Conant v. Jackson, 16 .Vt. 3'35; Martin v. Harsh, 13 L. R. A. (N. S.) 1000, 231 111. 384; Saum v. Talbot, 152 Cal. 142,; Longhead v. Comm. Co., 64 Mo. App. 559; Cavender v. Waddingham, 5 Mo. App. 465; Rodgers' v. Powers, 75 Mo. App. 271; Cutter y. Zollinger, 117 Mo. 101; Masterson v. Sheehan, 186 S. W. 527. (3) At the time he executed the trust agreement of May 23, 1916, Graham was fully advised as to the contents of the instrument and its legal effect, gave his free consent thereto after he had personally read the same and it had been fully explained to him by Mr. Bishop. After Graham had had the benefit of independant counsel in the preparation and as to the meaning of the instrument, he executed it free from fraud, deceit and undue influence. Thornton on Attorneys at Law, p. ,277; Bordie v. Ward, 151 Ala. 204; Donahue, v. Chicago Cricket Club, 177 111. 351; Kidd v. Williams, 56 L. R. A. 880; President Bowdoin College v. Merrett, 75 Feb. 508. (4) The allowance by the trial court to the attorneys of the trustees ■was proper and reasonable. Pomeroy, sec. 1085; Perry on Trusts (5 Ed.), sec. 910; Coffman v. Gates, 110 Mo. App. 488; Albert v. Sanford, 201 Mo. 133; Denvir v. Park, 169 Mo. App. 350; Jacobs v. Jacobs, 99 Mo. 436.
   SMALL, C.

Appeal from the Circuit Court of the City of St. Louis. On May 24, 1916, Henry B. Graham of that city, then about 41 years of ‘ age, signed and delivered an agreement dated May 23,1916, which is sought to be set aside by this proceeding. By said agreement Graham conveyed to the defendants, John E. Bishop, his attorney, and the American Trust Company, as_ joint trustees, all of his estate, consisting of both real and personal property, all located in St. Louis. The real estate was encumbered and the equities were of the estimated value of $87,200. The personal property, consisting mostly of, stocks and bonds, was of the value of about $513,351.8Í. The yearly gross income from the personal estate was about $32,420. Not including the deeds of trust on the real estate, the amount of his indebtedness was $168,000, and the total yearly fixed charges, including interest, amounted to $23,246.22. In addition, he owed sundry current hills, amounting to $2,772. The larger part of this indebtedness was held by W. K. Bixby, all of which was secured by stock in the Graham Paper Company, a very prosperous concern, the common stock of which was then paying 27 per cent annual dividends. Afterwards, such dividends were greatly increased, so that from the time the deed of trust was made, until the trial, a period.of less than two years, the aggregate dividends on such common stock of which the trustees held 700 shares, was $220 on each share. His net income at the time.the first deed of trust was made, over interest and other charges, was about $9,000 per annum, and at the time the petition was filed, it alleges, the gross income from the estate was $5,000 per month.

The deed of trust by which the property was conveyed to the defendants, Bishop and the American Trust Company, as trustees, after reciting that it was made “to make provision for the party of the first part and his children, Dorothy, Marjorie and Henry B. Graham III., and any child or children "that may hereafter be born to the party of the first part,” and with the power and obligation on the part of the trustee to hold, sell, manage, invest and re-invest said property, and to that end, to undertake to provide for the payment to the then existing debts and obligations of the said Graham, and of all liens and incumbrances upon said property from either sale or by pledging said property, provided that “from the property hereby conveyed to said trustees, or from the income or proceeds of sale of said property, or from any property or proceeds thereof, acquired by the trustees, under the provisions and powers hereof, the said trustees shall pay or provide for the payment of the fixed charges,” etc. And also by paragraph 4 it was provided that “from said estate, or from the income or proceeds thereof, said trustees shall during the life time of the party of the first part [said Graham], and the continuance of this trust, pay to the party of the first part, the sum of $500 per month . . . and in addition thereto, such further sums, as in the sole discretion of the said trustees, may-he necessary and proper to provide for medical and hospital .care and treatment, and such extraordinary care and expenses as may arise from bodily injury, sickness or ill health of the party of the first part. ’ ’ Then follows a provision that, after all the debts of said Graham have been paid, together with all expenses and indebtedness incurred by the trustees, the said Graham shall receive “all of the income from said estate.” It was also then provided as follows in said agreement: “The trust hereby created shall be a continuing one, and the trust estate shall be held intact subject to the payments hereinabove provided, during the life of the party of the first part, and after his death, the same shall be held for his children in equal parts, and as they severally arrive at the age of twenty-five years the proportionate part of the estate then held by the trustees hereunder shall be paid to said children, except that no child shall receive his or her proportionate part of said estate until one year after the death of the party of the first part. And providing further that the trustees are authorized after the death of the party of the first part from said estate to pay to or on behalf of each of said children such amount as in the judgment of said trustees may be necessary and proper for the support, maintenance, education and comforts of said children.”

At the time said agreement was executed and delivered, the American Trust Company agreed to and did advance some $15,000 or $16,000 to pay off pressing debts secured thereby, and at the time of the trial had paid off about one-half of the total indebtedness, leaving about one-half thereof unpaid, and had also, in the meantime, paid the said Graham $500 per month.

On March 12, 1917, Graham and his then wife made another deed of trust, revoking the deed of trust of May 23, 1916. made to the defendants, Bishop and American Trust Company, and conveying to the plaintiffs, McFarland and Janis, as trustees, all of hia property, real and personal, including that in possession of the defendants, and authorizing them to take possession thereof and, if necessary, to resort to the courts for that purpose. Plaintiff thereupon, on March 14, 1917, demanded of said defendants, trustees, the possession of all the property conveyed to them, and then in their hands, with which demand they refused to comply. Thereupon on March 17, 1917, this suit was brought.

The deed of trust executed to the plaintiffs on March 12,1917, after conveying all said property, provided that the much larger part thereof in value should be held by said trustees for the joint use and benefit of the said Henry B. Graham and Georgine Graham, his wife, and to the survivor of them, and also contained the following clause:

"In case of the death or divorcement of my wife, prior to my decease, said estate shall vest automatically in said trustees and be thereafter held and administered by them as part of my general estate, under paragraph second hereof, subject to the order, as to alimony, of the court granting such divorce and said joint estate may be changed or revoked at any time prior to such death or divorcement by joint action of myself and my wife, Georgine Graham.”

The balance of the property not included in the joint estate in case he died before his wife, was to be held in trust and paid to his children then living and afterwards born, in practically the same manner as in the deed of trust of May 23,1916. As to this part of the trust estate, a power of revocation was vested in Graham alone. There was also a similar provision for the payment of all existing creditors by the trustees, and like powers of manage • ment, control, sale, investment and re-investment, as in the conveyance of May 23, 1916. Also a provision for a payment of $1,000 per month to said Graham, until all debts were paid, and then the whole income from the joint estate was to be paid to his wife and himself jointly, and the income on the balance of his estate to himself. The instrument further provided that in consideration of the creation of the joint estate in the wife and the husband, the wife relinquished all her rights of dower to her husband in said estate. It was signed by Graham and his wife, Georgine Graham.

The petition, after setting up the execution of these two deeds of trust, charged that the deed of trust of May 23,1916, made to the defendants, Bishop and American Trust Company, as trustees, was void under Section 2880, Eevised Statutes 1909, which provides that all conveyances for the use of the grantor shall be void as to existing creditors and subsequent creditors and purchasers. The petition further alleged that the plaintiffs, as trustees, were purchasers in that they were trustees for the wife and also represented the creditors of said Graham. That it was also void because it was procured by the fraud of the defendant Bishop, in inducing said Graham by false representations as to its contents to execute it. Also, because it was procured by accident and mistake, in that the said Graham, at the time he executed it, supposed that it contained a clause authorizing him to revoke it and change it, and for the return of his property to him, when his debts were paid. That it was also void because said Graham was intoxicated at the time he executed it, and was mentally incapacitated on account of his indulgence in strong drink, and by reason of worry over his daughter’s illness, his own bad health, and the trouble with his then wife.

The prayer of the petition is that the agreement of May 23, 1916, be cancelled, and an order be made compelling defendants, Bishop and the American Trust Company, trustees, to deliver possession of the estate to the plaintiffs.

The answer of the defendants put the allegations of the petition in issue.

It appeared from the evidence that said Graham at the time the suit was commenced, had been married four times. His first wife had died, leaving two children, Dorothy and Marjorie. In 19Í2 his second wife was divorced; she had one child, Henry B. Graham III. He afterwards married a third time, and in February, 1916, his third wife left him, and went to New York City, where she lived' in adultery with another man. By her Graham had no children.

In March, 1916, he became engaged to marry Mrs. Snowden, who was then living with her husband in St. Louis, as soon ás he should be divorced from his wife and she from her husband. Both of them employed the same lawyer in' St. Louis, to bring their divorce suits for them. Graham’s divorce suit was brought in the County of St. Louis, his wife coming on from New York City and being served with process in that county. She failed to appear at the trial. A divorce was granted to him on the 3rd of June, 1916. The wife received $2500 in money, for which she released her rights in his homestead, and made no defense to his suit. Mrs. Snow-den brought her suit in the City of St. Louis, and her divorce was granted on the 30th day of June, 1916. On the 1st day of July, Graham eloped with Mrs. Snowden’s sister. They went to Decatur, Illinois. They tarried there a day or so, and then went to Indianapolis, where they remained a few days. They then proceeded to Pearl Beach, Michigan, where Graham had a summer home, and the next day they were married. They returned to St. Louis about the 26th of July,- in order that Graham might attend a meeting of the Graham Paper Company in which he was a director. Mrs. Snowden then sued him for breach of promise for $100,000, which he compromised for $4,000.

- The evidence showed- that Graham was a hard drinker, but it was conflicting as to whether or not it incapacitated him from business. Much testimony was introduced pro and con on this issue. The same is true as to. whether or not he was drunk at. the time he executed the instrument of May 23, 1916.

There was evidence on the part of the plaintiffs tending to support the allegations of the petition that Graham supposed that said instrument of May 23, 1916, contained a clause giving him the right to revoke it and providing that his property should be returned to him, when his debts were paid, for the reason, among other things, that he was engaged to marry Mrs. Snowden, when he should be divorced from his then wife, and Mrs. Snowden should be divorced from her husband, and he desired to make a provision for her of greater value than he would be able to do from the $500 per month, and the income of his property, after his debts were paid, reserved to him by said agreement. On the other hand, there was evidence to show that while Graham wanted this reservation in said deed of trust, he was notified a day or so before it was executed, by defendant Bishop, that the Trust Company would not consent to any such reservation and would riot act as trustee, except on condition that the said deed of trust was irrevoeable. That Mr. Bishop fully explained the deed of trust, as it was made, to Graham, before he executed it, and that he fully understood its contents and was sober and in his right mind when he executed and delivered it.

Likewise, on all other issues in the case, there was much evidence, and it was conflicting. The evidence was all practically oral and delivered in open court before the judge below, who decided all the issues of fact in favor of the defendants, and rendered judgment against the plaintiffs and for the defendants.'

After unsuccessfully moving for a new trial, the plaintiffs appealed to this court.

In the view we take of this case, it is not necessary for us to set out the proceedings at the trial, or’ refer to the very voluminous testimony to any greater extent than we have done, or shall do in the course of the opinion.

Tr¿?court° Mistake^1 I. The record is very voluminous. It would be wholly impracticable to attempt to set out even the substance of the evidence of the various witnesses. The testimony was practically all oral. It was heard by the learned chancellor below, who had a better opportunity to observe the witnesses and judge of the weight of their testimony than we have from the cold type of the record. He found all the issues of fact for the respondents and against the appellants. Even had. we some doubt as to the correctness of his conclusion of the facts, we should not be inclined to disturb his rulings, because our rule in equity cases is to defer somewhat to the findings of the lower court as to the facts, and not to disturb such findings unless we are clearly satisfied that they are against the weight of the evidence. This rule is especially applicable when there is such volume of conflicting testimony by oral witnesses on each side of every issue as is the ease here. But, in this case, the evidence has not awakened any doubt in our minds as to the soundness of the conclusion on the facts of the learned chancellor below. On the other hand, we entirely agree with him that the weight of the evidence is clearly in favor of the respondents on the issues in the case. That there was no fraud or misrepresentation practiced by any one to induce Graham to execute the instrument of May 23, 1916, mentioned in the petition; that he was a hard drinker, but was not drunk when he executed said instrument; that he was not incapacitated by drink or otherwise so that he did not understand it; and that he was fully informed as to its contents and made no mistake, when he signed and delivered it. We are also satisfied that it was a - wise, timely and provident disposition for him to make of his property, under all the circumstances of the case. His affairs, owing to his dissipated habits, were drifting towards bankruptcy, and he wisely determined to turn his property over to -competent and responsible trustees to manage and control it and hold it, so that he could not further waste or dissipate it, and thereby his existing creditors would be paid and he would be assured a sufficient support for life, and the children of his blood and bone would receive the corpus of his estate at his death. We find that he himself, first thought of and suggested a trusteeship, as admitted by appellants. This shows that while, in his dissipated condition, he did not think he was competent to successfully handle his affairs, in which we agree with him, he was competent enough to know that fact and to understand and appreciate it, and sensible and sound-minded enough to conclude to put his affairs in. competent hands. • The agreement, itself, is strong evidence that he was in his right mind. It is true that at first he desired to have a power of revocation in'the trust deed, but when he found he could not obtain a satisfactory trustee without making the trust irrevocable, he concluded, and we think wisely under the circumstances surrounding him, to make the trust irrevocable. In any event, we find he did so with full knowledge and appreciation of the fact, and we see no reason in the proofs to set aside his action or that of the lower court in refusing his demand in that behalf.

mdSon°m' II. But, independent of all other considerations, it is said by appellants, that the evidence shows that defendant Bishop misled Graham, as to his receiving one-third of the $3,000 cash commission paid by Graham to the trustees, in addition to the regular commission provided for in the deed of trust. The evidence shows that Bishop told Graham that the American Trust Company wanted a cash commission of $3,000 besides the regular commission, and did not inform him that he (Bishop) was to get any part of it. The regular commission was to be five per cent, of which Bishop was to receive two per cent and the Trust Company three per cent. ■ This ;was provided for in the deed of trust. Both were trustees. It is not claimed that Bishop told Graham that he was not to receive any part of the $3,000 cash commission. But that he told him (Graham) that the Trust Company wanted the $3,000 extra commission. This was true. Bishop did not ask for it. It was the Trust Company which demanded it. But, as there were two trustees, and the commission provided for in the deed of trust was to be divided between them, Graham was, at least, put upon inquiry by Bishop as to whether he would receive a part of the $3,000 commission, when he told Graham that the Trust Company demanded such commission. The presumption was natural, it seems to us, that this commission would also be divided between the trustees. Furthermore, Bishop prepared and Graham signed the following letter, directed to both the Trust Company and himself, with reference thereto:

“American Trust Co., and John E. Bishop.

St. Louis, Mo.

“Gentlemen: In view of the proposed contract

contemplated to be entered into between you and myself for the purpose of handling my property and disposing of it in accordance with that contract, and, as an inducement and additional compensation for handling the matter, I hereby authorize you to pay to yourselves the sum of three thousand dollars in addition to .the compensation provided for in said contract, the same to be paid out of the property transferred to you by said contract.

“Tours truly, H. B. Graham.”

It may be that Graham did not read, or read carefully, this letter, but Bishop did nothing to prevent him from so doing, and it shows he intended to do nothing to mislead him. We hold, there was nothing improper in the conduct of Mr. Bishop in this regard, and that the deed of trust assailed is in no way impaired thereby.

III. It is also asserted that the lower court erroneously excluded certain declarations alleged to have been made by Graham to third parties, in the absence of defendants, before and after the deed of trust to them was executed and delivered, as to the contents-of said instrument. That he told said parties he had made, or was going to make, an instrument, which placed his property in the hands of trustees until his debts were paid and the property was returned to him. The evidence was offered on the theory that it tended to show that Graham made a misake or did not know the contents of the instrument he made. It was, therefore, to prove the truth of the plaintiff’s assertions. The court rejected this testimony, as hearsay and self-serving. We know of no authority holding that a party can make declarations to third parties in his own favor and then have such parties testify to such declarations to sustain the truth of his allegations in the case. The rule is elementary that such declarations are inadmissible. [Gibson v. Gibson, 24 Mo. 227; Bush v. Bush, 87 Mo. 485; Hammond v. Beeson, 112 Mo. 201; Teckenbrock v. McLaughlin, 209 Mo. l. c. 546-9; Weber v. Strobel, 236 Mo. l. c. 663.]

IV. But, it is claimed that Section 2880', Revised Statutes 1909, makes the trust deed, to defendants null and void. That section is as follows:

Statute “Every deed of gift and conveyance of goods and chattels, in trust, to the use of the person so 77 ' making such deed of gift or conveyance, is declared to be void as against creditors, existing and subsequent, and purchasers.”

It may be admitted that this section'makes the conveyance, so far as it is to the use of Graham, null and void as to creditors and purchasers. But the statute does not make it null and void, even as to creditors and purchasers, so far as it is for the use and benefit of Graham’s children. This deed provided for the payment of his then existing debts, and there is -nothing in the statute preventing Graham from giving or conveying the remainder of his property to his children. or others as against subsequent creditors and purchasers.

Furthermore, this statute does not provide that a conveyance to one’s own use shall be void as to him, but only void as to purchasers and creditors. This proceeding' is more for the benefit of Graham than for either creditors or his wife, even conceding she is a purchaser. The plaintiffs are not purchasers nor creditors, but simply agents or trustees. This ease is, therefore, not bottomed upon the statute relied on, because said statute is not for the benefit of the party making the conveyance. [Sauter v. Leveridge, 103 Mo. l. c. top p. 624.]

Y. We hold said deed of trust to defendants is valid as to the defendant trustees and Graham’s children.

Remainder, It is said the remainder to Graham’s children is a contingent-remainder, void and ineffectual, and that the conveyance to them was, in effect, but for the use and benefit of Graham. We know of no reason why a man cannot by deed give a contingent remainder in his property to his children, or why such conveyance should be deemed void or for the grantor’s use. A contingent remainder is an interest in real estate. [Godman v. Simmons, 113 Mo. 123; Sikemeier v. Galvin, 124 Mo. 367.]

But, it is plain enough that the remainder of Graham’s children created by the deed of trust assailed is a vested remainder. The children to whom the remainder is given were living and are named, and the fact that the remainder opens to let in after-born children does not make it a contingent remainder. All the children, not simply those living at his death, are to take upon Graham’s death, which is sure to occur. The vesting of the title is not postponed after Graham’s death, until they reach the age of twenty-five years, but only the enjoyment of the possession of the property is thus postponed. This does not make the remainder contingent, or in any manner militate against its character as a vested remainder. [Barkhoefer v. Barkhoefer, 204 S. W. l. c. 910; Waddell v. Waddell, 99 Mo. l. c. 345; Thomas v. Thomas, 149 Mo. l. c. 433; Doerner v. Doerner, 161 Mo. l. c. 406; Carter v. Long, 181 Mo. l. c. 709; Warne v. Sorge, 258 Mo. 162; Eckle v. Ryland, 256 Mo. 424; Buxton v. Kroeger, 219 Mo. l. c. 261; Heady v. Hollman, 251 Mo. 632.]

It is also urged that the remainder is contingent in the children and void because Graham’s $500 per month is payable out of the principal, as well as the income, and therefore might absorb the whole estate. In effect, this monthly charge is but an encumbrance on the property and simply makes the remainder subject thereto. It does not change the nature of the title of the remaindermen any more than an encumbrance on a fee simple would change the fee simple title. Both remain unchanged, except they are subject to the encumbrance. They are in no way made void thereby.

But, we hold that the remaider to Graham’s children, whether vested or contingent, was a valid conveyance for the benefit of said children, and not for Graham’s, use. It is immaterial, therefore, so far as this case is concerned, whether said remainder was vested or contingent.

^edttors Purchasers. VI. The deed of trust, being valid as to the provision for the children, may, no doubt, be avoided by subsequent purchasers or-subsequent creditors of Graham, in so far, and so far only, as it is for Graham’s use. In a proper proceeding, subsequent creditors or purchasers might therefore reach and appropriate the monthly sum of $500 and the income reserved to Graham. [Authorities, infra.]

„ „ . VII. But, it is said by learned counsel, that it is possible that the vicissitudes of fortune might so reduce the income and value of the property, or might so afflict Graham personally, that the trustees, in the exercise of their honest discretion, might appropriate, or be compelled to appropriate, the entire estate to the payment of doctor bills and extraordinary expenses tor the care of Graham, on account

of personal injury or sickness; that even if the creditors or purchasers might secure his monthly stipend, they could not reach that part of the fund necessary to be reserved for Graham’s benefit, in case of injury or sickness, because that amount is uncertain. The law is a practical science. There is no allegation in the petition and no proof that it ever will be necessary for the trustees, in their honest discretion, to advance any more than $500 per month, or than all the income after Graham’s debts are paid, to pay his doctor bills. The petition alleges that the income was $5,000 per month when the suit was brought. At this rate, the debts will all soon be paid, if they have not already been paid, when Graham is entitled to the entire income. The doctor bills are only payable when necessary, and the amount so payable is in the sole discretion of the trustees.. It is not presumable that they would determine to pay such bills, or any part thereof, if Graham wasted his income in riotous living, so that he would not have enough left to pay doctor bills. The contingency of Graham ever receiving or being entitled to anything for doctor bills, in addition to his regular allowance provided for by the deed of trust, to the detriment of creditors or purchasers, is a most remote possibility, and will not, in a court of equity, be presumed against the allegations of the petition and the evidence in the case, to destroy an estate created in good faith for the benefit of his children.

But, if this contingency should ever happen, it is not beyond the power of a court of equity to determine the amount Graham would be entitled to for such doctor bills and extraordinary expenses on account of. sickness or personal injury, or require the trustees to do so, and award it to such creditors or purchasers instead of to Graham.

We must rule this contention also against the appellants.

Jamison Case. VIII. But,, it is strenuously argued that the case of Jamison v. Mississippi Valley Trust Co., 207 S. W. 788, decided by Division Two of this court, is decisively in favor of the claim of learned counsel for appellants, that under Section 2880, R. S. 1909, the deed of trust of May 23, 1916, to defendant trustees, is void. We are not of that opinion. That was a proceeding by judgment creditors and could have no application here for that reason alone, as we have already indicated.

In that case, there was no provision for the security of creditors, as in the case at bar. But the grantor conveyed his property to trustees: First, for the benefit of the grantor for five years, and if he died during that time, and in the absence of a will, to his heirs at law, under the laws of Missouri; second, the trustees were to pay to the grantor the net income, as he might demand; third aid fourth, the trustees were authorized to sell and manage the property in their discretion; fifth, the trustees were not to pay the grantor more than the income, “except that in case of the extremity of the beneficiaries, or if by misfortune or unavoidable accident the value of the trust estate shall become greatly diminished and imperious necessity affecting the then beneficiary should, in the judgment of the trustees, render it proper to use additional amounts out of the trust estate; . . . as to what is such extremity or imperious necessity and what amount of the principal is necessary to be used, the trustees shall exercise their best discretion and their decisions shall be absolute;” and sixth, the grantor was prohibited from anticipating the income payable to himself, and prohibited from selling or incumbering it, and both principal and interest were declared not subject to his debts or liabilities.

The court held the conveyance to the trustees was wholly for the use of the grantor, and was, therefore, void as to the plaintiffs, under said Section 2880 of the statutes. White, C., delivering the opinion of the court, said, at page 790 :

“It was not shown that Bell (the grantor) had any children, or that there was any one answering the description of ‘his heirs’ in case he should die. This contingent estate, if it may be so construed, depends upon several contingencies: The contingency that he die within five years; the contingency that he leave no Avill; and the contingency that he have heirs capable of taking. In case of his death without a will, the property would go to his heirs precisely as if no trust had been created; that is, the.trust Avould terminate at the end of five years, or sooner, in the case of his death. He retained control of the contingency by which the title might vest by purchase in his heirs. The restraining- barrier set to prevent assault upon the corpus of the estate contained an elastic panel euphemistically designated as ‘imperious necessity,’ which had already yielded under pressure so as to permit the escape of something near ten per cent of the amount in the trustee’s hands.”

The cases cited by the court from other states, including also McIlvaine v. Smith, 42 Mo. 45, were all cases where the intent was apparent that the transfer was intended to be and was wholly for the grantor’s use, and not, as in the case before us, for his use for life with a clear vested remainder in his children.

Nolan v. Nolan, 218 Pa. St. l. c. 140, 12 L. R. A. (N. S.) 369, cited by the court, was like the case before Commissioner White, and the court,' in that case, clearly distinguishes it from cases like the one we have to pass upon, by saying (12 L. R. A. (N. S.) 374):

“What has been said does not in any way disturb the rule in Potter v. Fidelity Ins. Trust & S. D. Co., 199 Pa. 360, 49 Atl. 85, wherein it was held that, where a voluntary, active trust by express terms is made irrevocable, and there has been no failure of the purpose of the trust, and it is not shown that the deed was procured by fraud or imposition, or executed under a misapprehension of the facts or the law, the trust cannot be revoked at the instance of the settlor, but will be enforced in favor of the beneficiaries. That was a controversy between the settlor and the beneficiaries, and the rights of creditors were not considered. Even in that case it was said that one of the reasons for setting aside a voluntary settlement of this character was that it appeared that the design of the deed was to give the settlor full enjoyment of his property for life, with power of testamentary disposition -and at the same time protect it from his creditors. This is exactly what the learned court below held the present deed to be, and we concur in that conclusion.”

When, however, as in the case at bar, conveyances have been made without power of revocation, and reserving a life estate to the grantor, with remainder over, the conveyances have uniformly been held valid, except' as to the income or part reserved to the grantor, which is held subject to the rights of creditors and purchasers. [Brown v. MacGill, 87 Md. 161; Bank v. Windram, 133 Mass. 175; Schenck v. Barnes, 156 N. Y. 316 ; Low v. Carter, 21 N. H. 433; De Hierapolis v. Lawrence, 115 Fed. 761; Sloan v. Birdsall, 58 Hun, 317; Jones v. Clifton, 101 U. S. 225; Curtis v. Leavitt, 15 N. Y. 9.]

IX. But there is another reason which would lead to an affirmance of this judgment. The principal complaint in the petition is that a clause in the agreement of May 23., 1916, making defendants, Bishop and American Trust Company, trustees, reserving to said Henry B. Graham, the right of revoking said trust and terminating it upon the payment of his debts and the restoring his property to him, was omitted through the incompetency,'mistake or accident of Graham, or fraud of the defendant, Bishop, who drew up said agreement, as the attorney of said Graham. The evidence shows that if said Graham desired any such clause of revocation in said agreement of May 23, 1916, or a clause restoring said property to him, it was principally for the purpose of enabling him to provide more abundantly than he otherwise could for Mrs. Snowden, as his future wife. Mrs. Snowden then was a married woman living with her husband in St. Louis. Graham had for some time visited her almost daily and was engaged to marry her when he should be divorced from his wife, who was then living in adultery with another man in New York City, and Mrs. Snowden should be divorced from her husband with whom she was • then living in the house where Graham visited her.

In fact, the appellants claim in their brief that such was the purpose of said Graham in desiring to have the revocation and return clause inserted in the deed of trust now assailed. Appellants’ learned counsel say in their brief:

“Despite the numerous sharp conflicts, certain facts stand out clearly in the record. Mr. Graham was intending to get a divorce and to marry Mrs. Snowden. He was heavily in debt and had the idea that the very existence of his estate was threatened by a pending foreclosure of collateral then in the hands of W. K. Bixby. It was clearly his intention to dispose of his property so that his wife would not be able to assert a claim against it and that the collateral in Bixby’s hands should be protected and to have the conveyance in such shape that he could modify it to provide for Mrs. Snow-den as soon as he was married to her. This was his general purpose. ’ ’

We are asked, therefore, to exert the powers of a court of equity to set aside an agreement which said Graham made, because by fraud and mistake, it omitted certain clauses which he desired inserted to enable him to carry out an illegal agreement with Mrs. Snowden to marry and provide for her when both he and she were divorced. It is true, that he deserted Mrs. Snowden and eloped with and married her sister, as soon as he and Mrs. Snowden were divorced, and seeks now to have said deed of trust to defendants set aside, not for Mrs. Snow-den’s benefit but for her sister’s. But, the clauses he desired to have inserted in, but which were omitted from, said agreement, being designated to carry out a wholly unlawful contract, he could not have been heard to complain of their omission at the time the agreement was made, and the fact that they would be used for a lawful purpose now (if such were the fact), had they been so inserted, would not purge the plaintiff’s case of its original vice and immorality. He who comes into a court of equity for relief must come with clean hands. [Gilmore v. Thomas, 252 Mo. 147; Creamer v. Bivert, 214 Mo. 485; Stillwell v. Bell, 248 Mo. 61.]

Attorney’s Fee. X. Complaint is also made of the allowance of $18,000 as compensation to defendant’s attorneys for their services in the circuit court in trying this cause. There was evidence taken by the learned court below, which we have examined, as to the value of such service. R abundantly supported the allowance. The deed of trust to defendants authorized the charge of necessary counsel fees to the trust estate. The lower court, who not only heard the evidence as to the value of such services, but by optical and long continued oral demonstration knew what such services were, made sucli allowance as a reasonable charge for such services. We shall not disturb it.

The judgment of the lower court, being without error, is in all things affirmed.

Brown and Ragland, GG., concur.

PER CURIAM: — The foregoing opinion by Small, C., is adopted as the opinion of the court.

All of the judges concur except Woodson, J., absent.


source: Caselaw Access Project

author: BLAIR, P. J.

license: Public Domain

text:
    HERMAN WOLF, Appellant, v. TERMINAL RAILROAD ASSOCIATION.
    Division One,
    June 2, 1920.
    1. NEGLIGENCE: Liability of Master for Servant’s Act: Scope of Employment. To bind the master for injuries to a third party it is necessary that the acts of the servant, whose intervention brought about the injury, pertained, at the time, to the duties of his employment.
    2. -: -:-: Unloading Furniture: Switchman-As Helper. Plaintiff, a furniture mover, placed his wagon on the team way, south of the railroad track on which stood a car loaded with furniture; when the south door was opened, he discovered that the car had been loaded from the north door, and that some of the crates on that side would have to be moved before those next to the south, door could be loosened and taken out; he thereupon opened the north door, and placed two crates upon a “gondola” or flat car, which stood on the tr-ck ;'u"t north of the furniture car; after he had partly filled the wagon from the south door, he went to the gondola car'and was in the act of removing the two crates when defendants .'.switchman appeared and announced that he was going to move the car, to which plaintiff replied that he would immediately remove the two crates, and as he was attempting to remove one of them the switchman said he would show him an easier and faster way, and removed some pins which field up the end gate and as he and plaintiff let down the crate on this end gate it fell and injured plaintiff. Held, that the switchman was under no obligation to aid plaintiff in removing the crate and owed him no duty to await its removal before moving the gondola car, and was not at the time of the attempted removal engaged in duties which pertained to his employment, and the railroad company is not liable in damages for plaintiff’s injury.
    Appeal from St. Louis City Circuit Court. — Hon. Benjamin J. Klene, Judge.
    Affirmed.

      Brownrigg, Mason é Allman for appellant.
    It appeared from defendant’s own evidence in the cause, as well as from plaintiff’s evidence, that it was necessary for defendant’s switchmen to move the car from which plaintiff and his helper were in the act of removing the furniture which they had temporarily placed there. Defendant’s witness testified that “the stuff had to be out of there before we could move the car.” Therefore, in assisting the plaintiff to remove the furniture from the car and in turning in the end gate of the car for that purpose, defendant’s switchman was doing something the natural effect of which was to expedite his own work which he was employed to do. It was clearly an act done by defendant’s employee in virtue of his employment and in furtherance of its ends, and is deemed by the law to be an act done within the spope' of the employment, for the negligent doing of which the master is legally responsible to any one injured thereby. Hinkle v. Ry. Co., 199 S. W. 227; Green v. Standard Oil Co., 199. S. W. 747; Maniaci v. Express Co., 182 S. W. 981; Whiteaker v. Railroad, 252 Mo. 438; Chandler v. Gloyd, 217 Mo. 415; Garretson v. Duenckel, 50 Mo. 104; Compher v. Telephone Co., 127 Mo App. 553; Haehl v. Wabash Ry. Co., 119 Mo. 325; Felhauer v. Quincy, 117 S. W. 797; Hellriegel v. Dun-ham, 179 S. W. 763.

      J. L, Howell and W. M. Hezel for respondent.
    The instruction in the nature of a demurrer to the evidence was properly given: (1) Because the plaintiff failed to prove, as alleged in the petition (a) That the employees of the defendant assured the plaintiff that the end gate was all right and that he might safely unload the furniture over the same; (b) that defendant’s employees directed the plaintiff 'and his helper to unload the furniture by sliding the same over the end gate while it was in the position in which it remained when the switchman opened it, namely, not all the way down; and (c) because defendant’s, employees were not acting within the scope of their employment. (2) Because it was not shown that defendant’s employees were negligent. (3) Because plaintiff was guilty of contributory negligence.
   BLAIR, P. J.

This is an appeal from an order overruling a motion to set aside an involuntary nonsuit taken by appellant in an action he brought for damages he alleged he received when a tail gate or end gate in one of respondent’s cars fell upon his feet while he was moving a piece of furniture out of the car. .

Appellant testified he was a furniture mover in the employ of Lammert Furniture Company, and was sent, with a helper, to remove the furniture from one of respondent’s box cars which stood upon a track in its yards; the team track was on the south side of the car; when the south car door was opened it was disclosed that the furniture car had been loaded from the other side and some of the furniture on that side would have to be moved before the crates next to the south door could be loosened and taken out; appellant’s helper opened the north door of the car, and he .and appellant lifted two crates of furniture out of that door and placed them on a gondola or flat car which stood immediately north of the furniture car on a track parallel to that on which the furniture car stood; this enabled appellant and his helper to “loosen up” other crates in the furniture car so they could load their wagon at the south door; this they did, but left room on the wagon for the two crates they had transferred to the gondola car; they then went to the gondola car and were about to unload from it the two crates they had placed upon it, when one of respondent’s switching crews came up, and one of them said: “We are going to cut out those cars.” Appellant replied: “AH right, we have got two crates in there and we will take them out and put them on the end gate of my wagon,” and then lifted the lighter crate over the side of the car and “slid it down” the side to the ground; one of the switching crew then said: “Wait a minute, I’ll show you an easier and faster way than that; you won’t have to leave it off that end,’’and he then pulled some pins or hooks out of the end of the car and “kicked it over and let this end down, but they didn’t come all the way,” and the switchman then stepped upon the end and on iiito the car, and said: ' ‘ That is as far as it will go; let’s go in and throw it over ; ’ ’this car end or tail gate was as wide as the car and as high as its sides (3% or 4 feet), about three inches thick, and iron-bound; the gate was not down on the car floor but lacked about twelve or eighteen inches of it; appellant saw it was lying at an angle; he and his helper and one of the switchmen then “tipped” a two hundred pound crated table over on this gate; appellant stood very near to it; when the weight of the table came upon the gate it fell and injured appellant; no one made any investigation to see whether the door would go down nearer the floor; appellant had never seen one of these tail gates put down before; it was ‘‘just a gate on hinges” which “folded” to the inside of the car to which it was attached.

Appellant contends the act of the switchman was within the scope of his employment and was negligent. Respondent contends otherwise, and also insists appellant was guilty of negligence as a matter of law.

The fact that the act was done during the time of the servant’s employment is not conclusive, nor is the motive of the servant so. The question is, was the act done by virtue of the employment' and in furtherance of the master’s business? [Hinkle v. Railroad, 199 S. W. 227.] “Whose business was'being done and whose general purposes were being promoted?” [Maniaci v. Express Co., 182 S. W. 981.] Was the servant acting-in the line of his employment, about his master’s business and seeking to accomplish his master’s purpose? [Whiteaker v. Railroad, 252 Mo. 438.] These and other cases cited by appellant announce the general rule as heretofore expressed in this State, but the facts of the cited cases are not such as to shed much light upon the question whether the rule is applicable to the facts of this case; and that is the only question the briefs present in this connection.

It is not contended the switchmen were charged with any general duty relating to the unloading of cars. Appellant’s contention is that the evidence tended to show that they undertook to aid him in order to hasten the accomplishment of their purpose, and duty, to take out a car which stood back of the gondola car upon which he and his helper had placed the two crates of furniture, in the unloading of which the injury was inflicted. Appellant placed the crates upon the gondola car without authority and at his own risk. The switchmen were under no obligation to aid him in their removal and owed him no duty to wait for their removal before moving out the car they sought at the time. They were free to proceed with their switching and allow appellant to wait until they returned the gondola car before removing the crates therefrom. The presence of the crates constituted no obstacle to the switching operations. In this situation they determined to delay the master’s business until appellant could accomplish his purpose of removing the crates. They were in fact not performing their work in so doing, but were merely accommodating appellant. The effect of this was not the furtherance of the master’s business, but the temporary suspension of it for the accommodation of appellant. It is true, after the switching crew suspended their operation to await appellant’s removal of the crates from the gondola car, that the quicker the crates were removed the quicker the crew could resume the master’s business; but the fact that they did temporarily suspend the performance of that business for appellant’s benefit makes it clear that the switchmen were not at the 'time, and in the act done, serving the master, but had stepped aside therefrom, and their acts in aiding appellant were, therefore, not acts for which the master was responsible. [1 Thompson on Negligence, sec. 526; 1 Shearman & Redfield on Negligence, sec. 147.] To bind the master it was necessary that the acts “pertain to the duties of the employment.” [Snyder v. Railroad, 60 Mo. 413; Walker v. Railroad, 121 Mo. 575.]

This disposes of the ease and other questions need not be discussed. The judgment is affirmed.

All concur, except Woodson, J., absent.


author: SMALL, C. GOODE, J.

text:
    SARAH CLEMENTINE DECK et al., Appellants, v. ELLA WOFFORD et al.
    Division One,
    June 2, 1920.
    . 1. QUARANTINE: Mansion House. If before the husband’s death the mansion house is destroyed by Are or flood or tornado or war and is not rebuilt or in existence at the time of his death, the widow has no quarantine in the plantation or messuages.
    2. -: -: Smokehouse. A smokehouse or granary or stable or other outhouse, existing on the plantation at the time of the husband’s death, but never used as a dwelling house by him or his family or any other person prior to his death, is not his mansion house at the time of his death; and although it may after-wards be enlarged or repaired and used as a residence by his widow and family, it it is not the husband’s mansion house, and such use of it by her after his death does not entitle her to quarantine.

      3. -: Eight to Possession: Dower: Conveyance: Limitations. Where the widow is not entitled to quarantine at the time of her husband’s death and therefore has no right to possession as against his heirs, a grantee, in an administrator’s deed made by order of court directing the land to be sold, but not sold according to its directions and erroneously describing the lands, who goes into possession, claiming to own the property under said deed, and holds possession for the statutory period, obtains title by limitation as against the heirs, and a deed from the dowress by which she in terms conveys her dower to him, obtained after he entered into possession, does not have the effect of suspending the running of the Statutes of Limitations; for being in adverse possession, under color of title and claim of ownership, at the time her deed is made, and not claiming simply in right of the widow’s dower conveyed to him, his possession is adverse to the heirs.
    4. -: -: -: Eight to Convey: Limitations. Prior to the revision of the statutes in 1889, a widow without quarantine had no right to the possession of the lands of her deceased husband and could not convey unassigned dower to one having no interest in the land until dower was assigned. And a deed made in 1878 conveying her unassigned dower ih land to which she had no quarantine right was a nullity and conveyed nothing to the grantee, unless he was the terre-tenant, in which event it operated only as a release of her dower.

      Held, by GOODE, J., concurring in the result, with whom BLAIR, P. J., concurs, that there being evidence to .support the finding of the trial court that neither the husband nor his family were living on the premises when he died in 1864, and the land having been sold by the administrator by a void deed in 1872, and the grantee having gone into possession under that deed and he and his grantees having since been in possession, the judgment of the trial court adjudging that the present grantee is the owner and that the heirs are barred by limitations should be affirmed.
    Appeal from Dent Circuit Court. — Hon. L. B. Wood-side, Judge.
    Affirmed.

      Wm. P. Elmer for appellants.
    (1) The administrator’s deed is void, because tbe order and report of sale do not describe tbe land in dispute, but other lands. Morgan v, Fitch, 125 Mo. 281; Gilmore v. Thomas, 158 S. W. 577; Wofford v. Mar- • tin, 183 S. W. 603. The sale was not made in conformity to the order of sale. It authorized a private sale to January 2, 1872, and thereafter a public sale. The land was sold at private sale April 12, 1872. Id. (2) The widow held her quarantine and dower rights in the land notwithstanding she and her husband left the homestead temporarily and he died elsewhere. She returned and occupied the homestead as his widow before' the execution of the administrator’s deed. Gentry v. Gentry, 122 Mo. 216; Brown v. Brown, 68 Mo. 388. Being temporarily away from a homestead to avoid personal injury does not constitute an abandonment. Blealdey v. Blake, 153 Mo. 388. Leaving homestead on account of war, the husband dying and the widow returning to the home, did not constitute abandonment or forfeit homestead rights. Lake v. King, 85 Mo. 413. The same rule applies to the widow’s quarantine and dower. Actual possession of husband is not essential to the right of dower attaching. Null v. Howell, 111 Mo. 277; Davis v. Evans, 102 Mo. 165. (3) The Statute of Limitations does not run against the heirs so long as the widow has the right to possession; no cause of action has accrued to them. Roberts v. Nelson, 86 Mo. 24; R. S. 1909, sec. 366;' Collins v. Pease, 146 Mo. 139; Swearengin v. Stafford, 188 S. W. 98; Coulson v. La Plant, 196 S. W. 1147. Neither the possession of the widow nor of anyone else claiming under her is adverse to the heirs. Hicks v. Watson, 167 S. W. 534; Hauser v. Murray, 165 S. W. 384; Shoultz v. Lee, 168 S. W. 1146, 260 Mo. 719. There could be no adverse possession under the void administrator’s deed. Melton v. Fitch, 125 Mo. 290.

      G. G. Dalton and S. R. Miner for respondents.
    (1) The right of quarantine exists only when the widow is living in the mansion house at the time of the death of her husband. McClurg v. Turner, 74 Mo. 46. At the time John B, Smith died he did not live on the place in dispute. He had been away from it over three years, and his family had moved away more than two years before his death, therefore the widow had no quarantine right in the premises. G. S. 1865, sec. 21, p. 522. (2) Prior to the Revision of 1865, there was no homestead statute whatever in Missouri, and since John B. Smith died prior to the enactment of that statute and before same became a law, the question of the homestead rights is not in this case. G. S. 1865, p. 450. (3) A tax deed to the land in question was made to Masters in 1866, when the land was sold for delinquent taxes, and he took possession of said land in 1866, and held the actual, open notorious, adverse, exclusive and continuous possession of said land from that date till he sold it to Miller in 1873, at which date said Miller stepped into the shoes of said Masters and his adverse possession was tacked to that of said Masters. So Miller had the benefit of the adverse possession of said land from 1866 to the date he sold same to Ella Wofford in 1904. So she had the benefit of adverse possession of said land from 1866 tó June 29, 1916, before any suit or action was filed for possession of this land. Therefore, Ella Wofford is vested with the absolute title in fee to said land by provisions of the Statute of Limitations. (4) The tax deed was color of title to the land in question, and was sufficient to start the Statute of Limitations running from and after 1866, the date Masters took possession of said land under his tax deed. 1 Bouvier’s Law Dictionary (3 Rev.), p. 527. Any instrument of writing which purports to convey a certain tract of land, describing the same, is color of title. 1 Words and Phrases (2 Series), p. 769; Joplin Brewing Co. v. Payne, 197 Mo. 422, 114 Am. St. 770. (5) The continuity of the adverse possession of Masters to the land in question, taken under the tax deed in 1865, was not broken by accepting the administrator’s deed in 1873. (a) It is very generally conceded that an adverse occupant may purchase an outstanding title without thereby interrupting the continuity of his possession. 2 C, J. sec. 150, p. 105; Mather v. Walsh, 107 Mo. 121. (b) He has a right to quiet his possession and protect himself from litigation in any lawful mode that appears to him most advantageous and- desirable. 2 C. J. sec. 150, p. 106, n. 76. (c) The adverse occupant does not rely upon his purchased title in preference to the one which he previously possessed. He joins the two together and possesses whatever title both may give him. Wiese v. Union Pac. R. R. Co., 77 Nebr. 40, affirmed 208 U. ¡3. 234.
   SMALL, C.

Appeal from the Circuit Court of Dent County. This is a suit in ejectment by the plaintiffs, who are the heirs of John B. Smith, deceased, against the defendants, Ella Wofford and husband, John Wofford, to recover possession, rents and profits and damages- for withholding possession of a farm in said Dent County.

The answer, in addition to a general denial, claims title by adverse possession under the thirty-year and ten-year Statutes of Limitations.

The reply denied the new matter in the answer, and pleaded res adjudícala, in that the matters and things in issue had been determined in favor of the plaintiffs in this case in a cause* between the parties theretofore brought by defendants against the plaintiffs in said court and appealed and decided by the Supreme Court.

At the trial, the plaintiffs introduced in evidence the petition, answer and reply in the former case, also the decree of the circuit court therein, and the mandate of this court. Said former suit was brought to the April term of said circuit court by Ella Wofford, as plaintiff, against Mary A. Smith, the widow (since deceased) and Sarah Clementine Deck, and the other heirs of John B, Smith, deceased, as defendants. It was a suit to quiet title to the property in question in which the plaintiff (Ella Wofford) claimed title by adverse possession under the thirty-year statute of limitations. The defendants (plaintiffs in this case) appeared in that cast and filed answer denying plaintiffs’ title and claiming title as heirs and widow of said John B. Smith. The testimony was heard and the canse was tried on its merits. The circuit court found a verdict and entered judgment for the plaintiff, Ella Wofford. The defendants appealed to this court. We reversed the judgment of the circuit court on the ground that the Statute of Limitations, the only question involved in the case, had not run against the defendants, heirs of said Smith, remanded the case to proceed according to the views expressed in our opinion, and our -mandate was to that effect. When the cause was returned to the circuit court, it was dismissed by the plaintiff, Ella Wofford. Thereupon, June 20, 1917, this suit was brought.

Our opinion in the former case is reported in the 183 S. W. 693. The opinion was by Bond, J.,, and, including the statement of facts, was as follows:

“This is an action filed by Ella Wofford, the plaintiff, to quiet title to 160 acres of land situated in Dent County, Missouri.

“In the year 1856, John B. Smith acquired from the Government title to 160 acres of land in Dent County, Mo., upon which he lived with his family until the outbreak of the Civil War. During the war the buildings on the land, except a smokehouse, were destroyed by soldiers, and Smith and his family went over to his uncle’s home some distance off. In the following spring they moved again, this time over to one William Sevier’s place,- about one-half- mile away, at which place his widow resided when he was killed in 1864, during the last year of the war.

“About a year after the husband’s death his widow, Mary A. Smith, with her family moved back upon the land in question and stayed there -about one year, occupying a smokehouse, the only building remaining on the land, as her residence, at the end of which time she went to Tennessee to live.

“On July 4, 1866, letters testamentary were granted on the estate of the husband, and on October 23, 1872, an order of sale was made which stated that Thoma° W. Howe, the administrator, was to sell the property at a private sale on or before the second Monday in January, 1872; otherwise' at a public sale as directed. The land was sold April 3rd at a private sale to William Masters, which was contrary to the directions of the order of sale. The order of sale misdescribed the lands in suit by reciting that the land was situated in township 34 instead of 33.

“On November 28,1873, William Masters, by a warranty deed, conveyed the land in. controversy to John B. Miller, the father of the present plaintiff. In 1876, Mary A. Smith, the widow of John B. Smith, came back from Tennessee and wanted to sell to Miller her interest as dowress in the place, which interest Miller at first refused to buy, but after her application to the court to set off her dower, he paid her $100, in consideration of which she gave him a quitclaim deed conveying her dower in terms. Though some steps were taken preparatory to the setting off of the widow’s interest no part of the land, so far as the evidence shows, was actually surveyed and set aside as her part; and after the purchase by Miller all proceedings in the matter came to an end.

“From that time on Mr. Miller continues with his daughter, the present plaintiff, in the quiet and undisturbed possession of the land up until his death, which occurred about eight years prior to the filing of this suit. Thereafter the land was held by the plaintiff and her husband under a deed from the father, John B. Miller.

“The defendants in this case are the heirs of John B. Smith and claim a fee-simple title to the estate, subject to the dower interest of Mary A. Smith.

“The case was tried at the April term of the Circuit Court of Dent County. A jury was waived by the parties and the ease was submitted to the court for determination, who decreed that plaintiff was the owner in fee simple of the land in controversy.

“There is only one question, and that of law, in this ease. It is conceded that the plaintiff has no title to the land, unless one created by the Statute of Limitations while it was held by her father and herself. This for the reason that her father, who deeded the land to the plaintiff, himself held under mesne conveyances from the purchaser at a void sale of the land by the administrator of J. B. Smith, whose title emanated directly from the Government, and the defendants are the wife and children of the patentee.

“Unless, therefore, the defendants (who are the heirs of the patentee of the land) have parted with their title by grant or legal, divestiture (neither of which happened) or have lost it by lapse of time and per force of the Statute of Limitations, the decree below for the plaintiff was erroneous.

' “On the 27th of November, 1878, the father of the plaintiff for $100 secured a quitclaim deed describing the land and reciting, viz., ‘ The interest herein conveyed b’eing the dower interest of said Mary Smith in and to said lands as the widow of J. B. . Smith, deceased,’ which was duly executed by the dowress, Mrs. Smith. Before this happened Mrs. Smith had taken steps for the laying off of her dower, all of which were abandoned upon the sale; hence the effect of her deed was simply to convey her unassigned do'wer in the lands. Neither she 'nor her grantees could make their possession adverse to the heirs while the dower estate in the lands were unadmeasured or unassigned. [Melton v. Fitch, 125 Mo. loc. cit. 290, 28 S. W. 612, et cases cited.] . . . For until her death the heirs were not entitled to possession and could not have ejectment for the land since no dower was ever set apart therein for the widow who was alive and testified at the trial.

“The learned trial court seemed to think that this case was ruled by some of the views expressed in McClurg v. Turner, 74 Mo. 45, but that case was wholly different from the present. There the only issue involved related to the quarantine right of a widow to occupy the mansion house and lands belonging thereto, until the assignment of dower under the statute. [R. S. 1909, sec. 366.] A statutory privilege distinct from and prior to the right of dower. It was ruled under the particular facts of that case showing that there was no mansion house on the land at the time of the death of the husband, that his widow could not defend by invoking the quarantine statute against an ejectment by the purchaser of the land under a valid judgment against her husband, for her statutory right was predicated upon the existence of a mansion house. Moreover, it appeared that the widow had bought the land from a third party who claimed adversely to the husband. These two aspects of the case only were adverted to in the opinion, and it conceded that the distinct dower rights of the widow would not be affected. The case therefore is wholly without bearing on the defenses in this case, that the lands in dispute were acquired by plaintiff’s father by a conveyance to him of the dower estate of defendants’ mother. That such estates as well as rights of quarantine are jealously guarded is ably stated by Sherwood, J., in Gentry v. Gentry, 122 Mo. 202.

“It is apparent from this glance at the point in judgment in McClurg v. Turner, supra, that it does not touch the issue here as to the right of a purchaser (or his grantee, the plaintiff) from the dowress to hold the lands subject thereto adversely to the heirs during the life of the widow.

‘ ‘ That this cannot be done is the settled law of this State. Tet it is the only point presented for review, for plaintiff’s father has not been dead ten years before this suit; hence, if she were claiming in her own rights and not as his grantee, no estate could as yet be created by the Statute of Limitations.”

The facts in evidence in this case were the same as those indicated in our opinion in the former case, with the additional testimony in this case, that in 1867, William Masters was in possession claiming to have purchased the land at tax sale, and so remained until Novemher 28, 1873, when be conveyed tbe land to John B. Miller, by a warranty deed, as stated by Judge Bond in our former opinion, and that said Miller remained in possession from tbe time be obtained Ms warranty deed from Masters until 1904, after which the defendant in this case, Ella Wofford, his daughter, under a deed from him was in possession and claimed to own the property, and that her possession continued from that time until the filing of this suit.

In this case, the court below made the following finding of fact:

“While there is some discrepancy between the testimony of Mrs. Mary A. Smith and Reuben Burris as to where the family was living at the time of the death of John B. Smith, yet it appears to me from her testimony that while she was eighty-five, years old, yet her mind seems reasonably clear as to the material facts in the case, and where they were living at the time of her husband’s death and also in corroboration- of her testimony as to the fact as to where she lived at the time of her son’s death, and I find that her testimony in regard to these matters is correct and true and that John B. Smith and family lived on this place as their home at the beginning of the war; that he left and went into the Confederate Army and was killed during the last year of the war, which would be in the year 1864. That sometime during the war the soldiers burned the house and she left and went to Sinkin and lived there one winter,- which was probably the winter of 1863 and 1864, and from there she moved about half a mile to Wiliam Sever’s, and was living at Sever’s when her husband was killed and stayed there that summer, and then moved back to the neighborhood of Wick Smith’s place and lived there one winter, and the next Summer moved back to the old place, fixed up the smokehouse and lived in it that summer, and the winter following her son James died and the next spring they moved from there up to Widow Chandler ’s, about a half mile away, and lived there that summer, and in the fall moved on Current River to Thomas Smith’s, and remained there until about Christmas, when her brother came for her and her children and took them back to Tennessee.

“That at the time of the death of John R. Smith, neither he nor his family were living on the place in controversy, and there was no dwelling house on the place, and nothing but.an old smokehouse which a year or two afterwards she fixed up and moved into with her children, stayed awhile and then moved away from the farm.”

In the former case there was no finding of fact by the trial court. In this case, the court gave the following instruction, to which the plaintiffs excepted:

“The court declares the law to be that the mere right of dower, existing in a widow, does not stop or prevent the running of the Statute of Limitations in favor of a stranger who is claiming the title to the same, and it is only when the right of quarantine exists, together 'with the right of dower, that limitation will not run against the heirs.

“The right of quarantine exists only when the widow is living in the mansion house at the time of the death of her husband.

“This construction was put upon the statute in the case of McClurg v. Turner, 74 Mo. 46, in the opinion of which Judge Henry uses the following language:

“The language of Section 2205 implies the occupancy of the premises by the husband at the time of his death. Until dower be assigned, the widow may remain in, etc. This language would be wholly inapplicable to a possession and occupancy of the premises by the widow, which commenced after the husband’s death. It is hot a dower right, but a right given by the statute to one who has a dower right. The possession she is entitled to under Section 2205 is of ‘the mansion house of her husband and plantation, until her dower be assigned.’

“I am unable to find where the ruling in this case has ever been modified or criticised and under the rule laid down by Judge Henry unless they were living on the place at tbe time of Smith’s death, limitations would begin to run when Masters took possession of the premises.”

The court sitting as a jury, found a verdict and rendered judgment in favor of the defendants. After unsuccessfully moving for a new trial, the plaintiffs appealed to this court.

Former "Ruling. I. Our conclusion, when the cause was here before, that the Statute of Limitations had not run against the plaintiffs in this case-, who were the defendants in that, was seemingly based solely upon the assumption of fact that John B. Miller went into possession and held and claimed the land simply as the grantee of the dower interest of Mary A. Smith, which she attempted to convey to him by her deed of the 27th of November, 1878, and as said dower had never been admeasured, and the widow was still living, there was no adverse possession against the heirs of John B. Smith, and, therefore, whether or not there was a mansion house on the property at the time of his death was not necessary to determine and was not determined.

uaraji ne. II. The substance of the instruction given in this case, and now complained of by appellants, is, that unless Smith’s family was “living on the place,” at the time of Smith’s death, limitations would begin to run against his heirs, when Masters took possession of the premises. The court found, as a fact, that at the time bis family were not living on the premises, because the mansion house had been burned down and they had moved away. There is no statement in the finding of fact when Masters took possession, but there was evidence that it was before his conveyance by warranty deed to John B. Miller, which was "on November 28, 1873.

The lower court, therefore, on the trial of this case, after it was remanded by us, decided in favor of the defendant, Ella Wofford, because it found, as a fact, that there was no mansion house on the property when Smith was killed, and, therefore, the widow had no right of quarantine, and the Statute of Limitations consequently commenced to run against Smith’s heirs in favor of Ella Wofford’s predecessors in title and possession, long prior to the date Mary A. Smith transferred her dower to John B. Miller, and thereafter continued to run in favor of said Miller and his grantee, Ella Wofford. We did not pass upon that question, when the case was here before. Consequently, our former opinion is not binding upon that point. [Keith v. Keith, 97 Mo. l. c. 231; Mangold v. Bacon, 237 Mo. l. c. 514.]

House011 III. The quotation from McClurg v. Turner, 74 Mo. 45, in the instruction given by the court in this case, shows that under the statute in relation to the widow’s quarantine, there must be a mansion house of the husband at the time of his death, upon or belonging to the fn which such quarantine is claimed. If there is no such mansion house at that time, there is no quarantine. It is not sufficient that the land belonged to the husband at the time of his death, and the widow had dower therein and a mansion house was subsequently erected thereon by the widow. In this construction of the statute we concur.

In the case at bar, the mansion.house in which Mary A. Smith’s husband had resided burned down sometime before his death, and his wife and family had left the place. Neither he nor his family lived there at the time of his death. Mere temporary absence of the husband from home or the mansion house at the time of his death, would not be held to deprive the widow of her right of quarantine, but, if before the death of the husband, the mansion house is destroyed by fire or sword or flood or cyclone or otherwise, and is not rebuilt or in existence at the time of his death, it cannot be said to be his mansion house at the time of his death, and, hence, the widow, would' have no quarantine therein or in the plantation or. messuages belonging thereto, for the obvious reason that there would he none such in existence.

mo e ouse. IV. In this case, however, it is contended hy appellants’ learned counsel, that the smokehouse was not destroyed, and that after Mr. Smith’s death, his family returned and lived in the smokehouse, which they refitted sufficiently to he habitable, and that g-^bsequcntly j.f. wag “built on to” hy Ella Wofford, or her predecessors in title, and used as a dwelling or mansion house. But, we hold, that a smokehouse or granary or a stable or other outhouses on the property at and before the husband’s death, hut never used as a dwelling by the husband or his family or any other persons in his lifetime, is not a mansion house of' the husband at the time of. his death, within the meaning of the statute, although it may afterwards he repaired or made habitable and used as a residence by his widow and family. The building of a mansion house or transformation of a smokehouse into a mansion house on the property by the widow after her husband’s death, would not be a mansion house of the husband at the time of his death. -[McClurg v. Turner, supra; Givens v. Ott, 222 Mo. 395.]

We hold, therefore, that under the finding of facts, and the evidence in this case, there was no mansion house upon or connected with the property in question, when Mr. Smith died, and, therefore, his widow had no right of quarantine, hut simply her right of dower therein.

V- There being evidence that Ella Wofford’s father, John B. Miller, her predecessor in title in 1873, went into possession and claimed to own the property under warranty deed ’from Masters, who was then in possession claiming title, the subsequent taking of a. deed from Mary A. Smith by said John B. Miller in 1878 of her dower interest only, did not have the effect to suspend the Statute of. Limitations from running against the plaintiffs, in this case, the heirs of John B. Smith. [Mather v. Walsh, 107 Mo. 121.]

The land in question not being at the time of her husband’s death in any way connected with his mansion house, Mary A. Smith had no right of possession as against the heirs of her husband, but they were entitled to the possession thereof, and her conveyance in 1878 of her dower right did not confer upon her grantee, John B. Miller, the right to the possession of said land. If said Miller, at the time he took such conveyance, was in adverse possession, under color of title, and thereafter continued in such possession, claiming the ownership of the property, and not simply Mrs. Smith’s right of dower, his possession was adverse to the heirs of John B. Smith, and the Statute of limitations ran against them. Indeed, in 1878, a transfer by a widow of her unassigned dower rights in property not connected with her husband’s mansion house at the time of his death, was a nullity, and conveyed nothing to the grantee, unless he was the terre-tenant, in which event, such transfer operated simply as a release of dower. This subject was fully considered in Sell v. McAnaw, 138 Mo. l. c. 273-4, where this court, per Maoearlane, J., said:

‘ ‘ There was no evidence whatever that the disputed land was a part of the plantation on which was situated the mansion house of the deceased husband. The home of Crohan at his death was in another county, and this land was not used in any manner in connection with it. The widow of Crohan was not, therefore, entitled to the possession and use of it until her dower was assigned.

“Section 2205 (R. S. 1879) only gave her the right to remain in and enjoy the mansion house of her husband and the ‘messuages and plantation thereto belonging’ until the assignment of her dower. It gives her no right to the possession of all the land of her deceased husband in which she had a dower right. Her conveyance of the land did not therefore confer upon her grantee the right to possession. She could convey no greater right than she herself possessed.

“Whatever interest Crohan had in the land descended to his «heirs, subject to the widow’s right of dower. If he was entitled to the possession, and, as between the parties to this suit who claim under him we must assume that he was, the right on his death vested in his heirs.

“Until the revision of 1889 (Sec. 4514) a widow could not, at law, before assignment, alienate her dower right by conveyance or assignment to one holding no interest in the land. She could release her claim of dower to the terre-tenant so as to bar herself, but she could invest no other person with the legal title thereto, until it had been assigned. [2 Serb, on Dower, sec. 42; 5 Cyclo. of Law, 906, and cases cited in each; Brawford v. Wolfe, 103 Mo. 400.]

“It follows that the deed from the widow to Smith passed no legal right of title in the land to the grantee. Defendants in the use they made of the land, can only be treated as trespassers unless they have thereby acquired the title thereto by adverse possession.

“It cannot he said that the acts of ownership exercised over the land by defendants were permissive, and not adverse to the claim of the heirs. The widow had no right she could confer upon her grantee. The deed conferred no right to possession, or to go upon the land and cut and remove timber therefrom. Defendants’ acts of ownership were, consequently, hostile to the rights of plaintiffs.”

In Givens v. Ott, 222 Mo. 395, while this court was evenly divided on the question whether there was a mansion house, in that case, withiii the‘meaning of the statute, there was no division on the proposition laid down in the opinion of Woodson, J., that if there was no mansion house connected with the property, there was no quarantine and no right to possession on the part of the widow simply by reason of her unassigned dower, and that in such case, if the -widow takes possession, under a deed from a third party, giving her color of title to land in which she has such unassigned dower but no right of quarantine, the Statute of Limitations runs in her favor against the heirs from the date of such deed.

We hold, therefore, that under the facts found and which the evidence tended to prove, in the case at bar, the title to the land in question was vested in the defendant, Ella Wofford, at the time this suit was brought by adverse possession under the Statutes of Limitations pleaded in her answer.

There was no error in the rulings of the court below, and its judgment is affirmed.

Brown and Ragland, GO., concur.

PER CURIAM: — The foregoing opinion of Small, C., is adopted as the opinion of the court.

All of the judges concur, except Woodson, J., absent; Goode, J., concurs in separate opinion, in which Blair, P. J., concurs.

GOODE, J.

(concurring). — I concur in the result of this case for the reason that there was evidence to support the finding of the court below that neither John B. Smith nor his family was living on the premises in controversy when he died. Blair, P. J., concurs herein.