author: CRAVES, J. PER CURIAM.

text:
    MARY J. DAVIDSON et al., Appellants, v. I. M. DAVIDSON REAL ESTATE & INVESTMENT COMPANY and ISAAC BARNHILL, Appellants; and JAMES L. DALTON, WILLIAM FERGUSON and JAMES LAVIN, Respondents.
    Division One,
    April 8, 1913.
    1. PARTITION: Allowances of Probate Court: Notes and Mortgages as Additional Security: Res Adjudicata. Where claims were allowed against decedent’s estate by the probate court, and directed to be paid in the interlocutory judgment in partition, and after the real estate was sold in partition the claimant took notes from the purchaser secured by deeds of trust on the land so sold, a subsequent judgment setting aside the sale in partition and adjudging the notes and deeds of trust invalid and void, did not affect the validity of the original claims, if in fact they were not merged into the notes and deeds of trust, hut the claimant held on to and did not surrender them, but only took the notes and deeds of trust from the purchaser as additional security. Being still valid, the court in a corrected interlocutory judgment in partition should allow them and direct their payment out of the proceeds of the sale of the lands.
    2. JUDGMENTS: Bounded by Pleadings: Res Adjudicata: Partition. Judgments cannot be broader than the issues made by the pleadings. Though the language of a decree setting aside a sale in partition may seem to indicate that a claim allowed against the estate was for naught held, yet if the issues made by the pleadings only attacked the notes and deeds of trust given by the purchaser to the claimant and the decree set them aside, it will not be held that such judgment of cancellation also set aside and for naught held the valid claim allowed and adjudged by the interlocutory decree therein. If the validity of the claim itself was not involved in the • decree setting aside the sale in partition, its validity is still open for consideration when the court comes to make a modified interlocutory decree.
    ¿5. PARTITION: Cancellation of Final Judgment: Status of Interlocutory Judgment. Where the final judgment in partition approving the sale of the property, was attacked by the heirs by a separate suit in equity, charging it was obtained by fraud in its concoction, and that charge was sustained and the judgment set aside, the interlocutory judgment being left unaffected by the decree, the partition suit was still pending as if no final judgment had ever been rendered, and all the parties were left by the interlocutory judgment in possession of all the rights they would have under an interlocutory judgment in any other partition case. Being interlocutory it remained interlocutory, subject to correction and alteration, and no allowance _ or adjudication by it became res adjwUoata.

    4. -: Purchase of Interest by Trustee: Presentation of Deed: Fiduciary Relation. The presentation by the trustee under the will of deeds showing he had purchased the interests of two heirs does not alone entitle him to participate in the proceeds of the estate. The fiduciary relation being shown, it devolves upon him to show the fairness of the transaction, the burden shifting to him to establish adequacy of consideration and that he did not take advantage of the devisees; and if the evidence shows that he obtained property worth $15,000 for $8,000, the deeds should be set aside, and he allowed a lien on their interest for the amount actually paid them, with six per cent interest.
    5. -: Trustee: Services. Where the evidence shows that the services of the trustee under the .will were worth $50 a month, the court should modify its original interlocutory decree in partition which allowed him $150 per month.
    '6.-: -: Advancement for Benefit of Estate. The trustee under the will should be repaid in the partition suit the money he advanced for the benefit of the estate. And where there was final judgment and sale, and he accepted a note from the purchaser, secured by a deed of trust on the land, and that sale is uprooted and the final judgment set aside as being obtained by fraud, the debt itself still exists, and should be allowed.
    7. -: Void Sale: Sale of Interest by Widow to Illegal Purchaser. The sale by the widow of her stock in the corporation organized to purchase the land at the partition sale, which was set aside for fraud, did not in law carry her title to the estate property.

      8. -: Estoppel: Officers of Corporation: Not Nominal Parties. The president and secretary of the corporation who were present and managed the defense for it in the suit by the heirs to set aside the final decree in partition and to divest it of all title to the real estate which had been conveyed to it as a result of that void sale, were so far privies in interest as to be bound by a judgment annulling the sale and divesting the corporation of the properties; and if in that suit they set up no claim in themselves to the interests of two of the heirs, but aided and abetted the corporation in claiming those interests, they are estopped to assert that they are the owners thereof.
    ■9. -: Services of Employee of Tortfeasor. Where a corporation was a tortfeasor and as such wrongfully in charge of the estate, an employee of the corporation should not be allowed in the partition decree.for his services in managing the estate.
    10. -: Liens: Effect of Setting Aside Sale. Liens on the interest of heirs acquired, for money advanced, prior to the time the property was ordered sold under partition, should be allowed in the corrected judgment, although the final judgment and sale thereunder were set aside for fraud, and the title divested out of the corporate purchaser which had given notes for the amount of the debts and secured them by mortgages on the properties. And though these pre-existing liens were owned by the officers of the corporation, it was not inconsistent for them in the suit to set aside the partition judgment, to assert title in the corporation, and now say, after that title has been held to be invalid, that they should be given a lien on the interests of the heirs to whom they loaned the money - in the renewed partition judgment.
    11. -: Adjusting Equities: Breadth of Pleadings. In partition proceedings the court has wide latitude in the adjustment of all equities. If the answer of some defendants sets up that they are owners by purchase of the interests of certain heirs for money advanced, and the proof shows that they are not purchasers but only have liens on the interests of such heirs, their rights should be adjusted, even to the extent of requiring the pleading to be amended.
    12. -: Tortfeasor: Allowance. Where the tortfeasor in possession of the property tried to collect all the rents obtainable, and used the money in improving and caring for the estate, he will not be charged, in the final partition decree, with the reasonable rental value of the property, but only with what was actually received.

      Appeal from Butler Circuit Court. — Ron. Jesse C. Sheppard, Judge.
    Reversed AND remaNded (with directions).

      Louis F. Binning, John M. Atñnson aud David W. Rill for plaintiffs-appellant.

      Phillips, Lentz & Phillips for defendants-appellant and respondent William Ferguson.

      Wilson Cramer for respondent James L. Dalton.

      Ernest A. Green for respondent James Lavin.
   CRAVES, J.

The original petition in this case was filed in 1901. [Davidson v. Davidson, 226 Mo. l. c. 13.] The exact character of this petition is not. material and we only mention it in passing. In January, 1902, all the heirs at law of I. M. Davidson except Rose Belle Finley filed their amended petition in this cause, in which petition they asked, first, for a construction of the last will of the said I. M. Davidson, deceased, and in that connection asked that a trust attempted to he created by such will be declared void for uncertainty and other things; and, secondly, this amended petition prayed for the partition of the lands, and in connection with such claim urged that such lands should be sold and the proceeds divided. The defendants named in that suit were Rose Belle Finley, one of the Davidson girls, James L. Dalton, and some other parties who held liens against the Davidson estate. Issues were duly formed by appropriate pleadings, and the circuit court of Butler county entered an interlocutory' decree of partition June 19, 1903. Under this interlocutory decree an attempted sale was had and the I. M. Davidson Real Estate and Investment Company was reported as the purchaser of all the landed interest of that estate, reasonably estimated at $200,000, for about $98,000. In October, 1903, a final judgment was entered approving tbe report of sale and ordering distribution. Dalton, wbo bad been appointed by tbe court as trustee under tbe Davidson will, was discharged from bis trust by order duly made. No appeals were taken from tbis judgment. In May, 1906, Laura Carter Davidson, wbo, through her guardian Mary J. Davidson, was a party plaintiff in tbe partition case, upon tbe filing of tbe amended petition in 1902, supra, having attained her majority, brought a direct proceeding in tbe circuit court of Butler county, attacking tbe interlocutory and final judgments aforesaid for fraud and other matters, and attacking tbe sale, tbe report of sale and tbe deeds made thereunder for the same reasons. In tbis case, which for convenience, we shall hereafter speak of as tbe Laura Davidson suit, issues were duly framed by appropriate pleadings, and tbe cause was tried by tbe circuit court of Mississippi county, to which court tbe venue bad been changed. The petition in tbe Laura Davidson suit not only prayed for tbe cancellation of tbe judgments aforesaid, but also prayed to have her interest of one-ninth in her father’s estate quieted in her. Tbe Davidson heirs wbo were made defendants by Laura Carter Davidson filed answers admitting tbe facts of her petition and asking that tbe decree go as prayed for by her. Tbe answers of tbe other defendants' were quite different. Tbe Mississippi Circuit Court held that tbe final decree of partition and all tbe proceedings after tbe interlocutory decree were void, and vacated all tbe steps taken after tbe interlocutory decree. Tbis judgment with a slight modification was affirmed in Davidson v. Davidson Real Estate & Investment Co., 226 Mo. 1. Tbis deposition of tbe Laura Davidson case, left tbe case now before us pending in tbe circuit court of Butler county upon a mere interlocutory judgment in partition, which we then said was a judgment within tbe breast of the'trial judge until final judgment was entered.

Taking a cne from onr opinion in the Lanra Davidson case, an amended petition was filed in this case in the Butler Circuit Court on April 4, 1910. New plaintiffs were substituted and added and new defendants added, if we take as the starting point of this long drawn-out lawsuit the petition of 1902 as the basis. This petition, if the description of the real estate is omitted, is not long, and had best be set out. Leaving out the long list of property involved therein, it reads:

“Now at this time come the plaintiffs in the above entitled cause and by leave of court file this, their amended petition in said cause, and for such amended petition state:
That the plaintiffs are seized, as tenants in common, of the following described lands, to-wit: . . .
“And that a majority of the owners thereof reside in said county of Butler.
“Plaintiffs further state that the plaintiffs are the owners and entitled to the following shares of said lands:
“Jay Davidson and Ida M. Rhodes, each an undivided one-ninth.
“Mary J. Davidson, Ira M. Davidson, Rose Belle Davidson, Laura C. Davidson, G-rant Davidson, May Davidson and Nina Davidson, each an undivided one-eighteenth.
“Louis P. Dinning and John M. Atkinson, each an undivided 7-72.
“David W. Hill an undivided 7-36 of the lands above described; and the defendant James L. Dalton claims a debt against said lands in the approximate sum of twenty-six thousand dollars, mentioned in the interlocutory decree heretofore rendered in this cause; that the defendants, William Ferguson and I. M. Davidson Real Estate & Investment Company claim the share of said lands belonging to Jay Davidson; that the defendants Isaac H. Barnhill and I. M. Davidson Real Estate & Investment Company claim the share of lands belonging to Ida M. Rhodes; that the plaintiff Chris L. Rhodes is the hnsband of Ida M. Rhodes; that the plaintiff Nina Davidson is a minor, nnder the age of eighteen years, and that W. W. Turner is the duly appointed, qualified and acting curator of her estate; and that the defendant I. M. Davidson Real Estate & Investment Company is a corporation organized and existing under and by virtue of the laws of the State of Missouri.
“Plaintiffs further state that whatever right, title or interest the defendants William Ferguson and Isaac H. Barnhill held, or claim to hold, in the above described lands are held by them in trust for the I. M. Davidson Real Estate & Investment Company, which corporation has since the 12th day of October, 1903, been wrongfully in the possession of all the lands above described, and has wrongfully collected and appropriated, to its own use, the rents and profits for such time, to the extent of $100,000', and for which rents and profits the owners of said property are entitled to an accounting.
“Plaintiffs further state that the plaintiffs hold title to the above described real estate by virtue of the last will and testament of Isaac M. Davidson, deceased, a certified copy of which was, on the 11th day of November, 1897, recorded in book 51 at page 36 of the deed records of Butler county, Missouri, and by virtue of a decree of the circuit court of Mississippi county, Missouri, rendered on the 11th day of April, A. D. 1908, a certified copy of which was, on the 22nd day of March, A. D. 1910, recorded in book 90 at page 502 of the deed record of Butler county, Missouri, and by virtue of a quit-claim deed recorded March 21, A. D. 1910, in book 87, at page 500 of the deed records of Butler county, Missouri, and a quit-claim deed from Louis F. Dinning to John. M. Atkinson on the second day of April, A. D. 1910.
“Plaintiffs further state that the estate from which said lands descended has been finally settled and all claims against the same have been fully discharged.
“Plaintiffs state that the interlocutory decree rendered in this cause on the 16th day of June, 1903, and entered in book S at page 352 of the circuit court records of Butler county, Missouri, is erroneous and does not correctly adjudg'e and define the true interests of the owners of the above described real estate;- that some of the interests in said real estate, since the rendition of the interlocutory decree, have changed or merged and that said interlocutory decree ought to be set aside and for naught held.
“Plaintiffs further state that on account of the nature and character of the lands sought to be divided, and the number of the owners thereof, partition in kind cannot be made without great prejudice to the owners and that said lands ought to be sold and the proceeds partitioned among the several owners.
“Plaintiffs further state that the above described real estate consists very largely of houses and improved farms, yielding annually about twelve thousand dollars rent; that said property (except some of the apartments of the Davidson Flats) is now in the possession of N. C. Whaley, receiver appointed by the circuit court of Mississippi county, Missouri, which receivership has not yet terminated and that it is necessary that a receiver should be constantly in charge of said property to preserve the same and collect the rent.
“Wherefore plaintiffs pray the, court to appoint, as soon as said Mississippi Circuit Court receivership be terminated, a receiver to collect the rents and to care for and preserve the said real estate while this property is in litigation in this court; that said inter-loeutory decree of partition heretofore entered herein be set aside and for naught held; that partition of said lands may be made among the owners thereof according to their respective interests therein; that said lands be ordered sold and the proceeds divided among the said owners in proportion to their respective interests ; that the I. M. Davidson Real Estate & Investment Company, and William Ferguson and I. H. Barnhill, its officers, account to the owners of said property for the rents and profits thereof from the 12th day of October, 1903, aggregating one hundred thousand dollars; and for such other and further orders, decrees and relief in the premises as may seem just and proper to the court, plaintiffs will ever pray.”

Each defendant filed a separate answer, to which plaintiffs replied. The pleadings are verbose, covering nearly 100 pages of this voluminous record. The circuit court, after trial, modified in some respects the original interlocutory decree, and from this modified interlocutory decree the plaintiffs have appealed, as also have the defendants Barnhill and the I. M. Davidson Real Estate & Investment Company. The contentions of the several parties will have to be stated separately, to the end that a fair understanding of the present record may be had from any reasonably short statement of the case. To that end we will note that portion of the interlocutory decree and the pleadings and proof in connection with the contentions and counter-contentions with reference to each party. Reference will also be made to our former opinion in Davidson v. Davidson Real Estate & Investment Co., 226 Mo. 1, which opinion should be read in conjunction with this opinion for a fuller statement of some of the pertinent issues and facts. This gives a general outline of the case now here.

I. Plaintiffs urged .that the court erred in the modified interlocutory judgment in making any allowance to James Lavin and in mating such allowance a lien npon the Davidson estate. Lavin npon application at the April term, 1910, of.the Butler Circuit Court was permitted to come in as a party defendant. In the original interlocutory judgment there was an allowance of $4350 allowed to Ferguson and Wheeler. The basis of the allowance in the original interlocutory judgment was that such amount was due them under an allowance or judgment in the probate court against the Davidson estate. Lavin claims to be the assignee of this claim. In the original interlocutory judgment it was further provided: “That out of the proceeds of said sale there be paid, first, the costs of this proceeding, including an allowance of a reasonable fee for plaintiffs ’ attorneys hereinafter to be made by the court: secondly, the claim of Ferguson and Wheeler aforesaid allowed by the probate court.” Lavin claims to be the assignee of this attorneys’ fee allowed to Phillips & Phillips in the sum of $5000. In the modified interlocutory decree, the one here for review, the trial court found for Lavin upon both these items, in the aggregate sum, principal and interest, of $10,124.40. Lavin affirms the correctness of this ruling, and plaintiffs deny. It should be here remarked that both items of the present Lavin claim were assumed by the Real Estate & Investment Company at the time it attempted to purchase at the sale in 1903, and said company gave notes and deeds of trust to secure the two claims. Plaintiffs, in the brief, thus challenge the Lavin allowance in this present judgment:

“With reference to the defendant James Lavin, plaintiff’s position is simply this — the decree of the circuit court of Mississippi county is conclusive as to his claims (whether they exist in the form of assignments or merge in the notes read in evidence) here asserted. That was a suit, among other things, to determine and qniet the title — he was made a party defendant, was duly summoned, filed two answers, judgment was rendered against him, determining the title to be in the nine devisees in equal shares and barring whatever claims he might have, whereby he is precluded and estopped from asserting his claims in this proceeding, which he owned and held at the time of the proceeding, ■ as he so testified in this case. He toot no appeal. The trial court erred in not sustaining plaintiffs’ plea of res adjudicata as to his claims.

Lavin was the holder of these two notes and deeds of trust from the Real Estate & Investment Company at the date of the Laura Davidson suit in Mississippi county. By evidence in this record he shows that the answer filed for him in the Laura Davidson case was filed without authority; that he had always held unassigned and uncancelled these two claims and only took the notes and mortgage as additional security; that the claims have never been paid. The validity of the original Ferguson and Wheeler claim does not bear denial. It'was reduced to judgment in the circuit court of Carter county first, then probated in the probate court of Butler county against the estate of I. M. Davidson, and later in the interlocutory decree of 1903 was directed to be paid out of the proceeds of the sale prior to partition of such proceeds. The Phillips claim was duly allowed as costs and directed to be paid -in the same way. It is evident that these were just demands against the Davidson estate and should now be paid out of the proceeds of that estate, unless Lavin has in some way lost his rights. This plaintiffs say was done by the judgment in the Laura Davidson case. In the petition of plaintiff in that case, the only place therein where Lavin’s name is mentioned is in this clause: “ That said corporation, by virtue of said partition proceeding only, is in possession of all the above described real estate, and has executed mortgages and deeds of trust thereon, now held by James L. Dalton and James Lavin defendants herein to the extent of $40,000 or more.” But for the purpose of this case it may he granted that as to these two mortgages, thus meagerly described in the petition, the judgment of that court did destroy the mortgage lien held by La-vin, yet does it follow from such fact that the triaL court in the case at bar was in error in directing the original claims to be paid out of the proceeds of the partition sale to be had under the new order, of sale? We think not. Grant it that Lavin was served in that case, and grant it further that the decree in that case divested Lavin of his mortgage lien, yet there is ample evidence in this record to sustain the present interlocutory decree.' Lavin has never been a party to any of the frauds connected with this case. His evidence tends to show that he never surrendered his original claims; that he held on to them and only took those mortgages and notes as additional security; that he paid actual cash for the claims is not seriously disputed; that originally they were valid claims against the Davidson estate is not seriously disputed. If the trial court believed the evidence for Lavin in this record, there is ample evidence to sustain this allowance, and yet give the Mississippi county judgment its full force and effect. If those original claims had never been canceled and merged into those notes and mortgages as full payments thereof, as the evidence tends to show, then Lavin had valid claims which should be in this judgment. The trial court heard these witnesses and believed them, and we shall not disturb this finding. Plaintiffs are overruled on this contention.

II. The modified interlocutory decree, in so far as it affects the defendant James L. Dalton, is vigorously attacked by the plaintiffs. The amended petition of the plaintiffs we have duly set out in our statement. To this amended petition, filed after the Lanra Davidson case was decided hy this court, Dalton filed an answer consisting (1) of a general denial and a prayer for the dismissal of this amended petition, and (2) a plea of former adjudication by virtue of the first interlocutory decree entered June 19, 1903. To this answer the plaintiffs replied thus: (1) That said decree pleaded in bar hy Dalton was only interlocutory and was in no sense final and conclusive; (2) that the right to the share of Rose Bell Davidson and Ira M. Davidson had been against said Dalton hy the circuit court of Mississippi county in the Laura Davidson case; (3) that the said Dalton was estopped to claim said two interests hy reason of his acts and conduct in the Laura Davidson case; (4) that as to the claim of said Dalton allowed in the original interlocutory decree for $28,618.24, it had been fully settled and satisfied; and (5) that the allowance to said Dalton of $150 per month for fifty-eight months, the term of his trusteeship, was excessive, unwarranted and wrong, and that the original interlocutory decree should be reduced so as to allow said Dalton only $50 per month. The original interlocutory decree made allowances to Dalton thus: (1) two shares in the estate (Rose Bell Finley’s and Ira M. Davidson’s) subject to certain liens and claims; (2) for money advanced to the estate hy the trustee $16,966.76; (3) for salary as trustee at $150 per month, $8,700; (4) certain allowances to Dalton for liens held by him on other interests. The modified interlocutory decree at state in the present hearing practically gives to Dalton what was given to him by the interlocutory decree first made in the case. These are the questions presented so far as Dalton and the plaintiffs are concerned. These questions can be thus summarized:

(1) Did the decree of the Mississippi Circuit Court divest Dalton of these two shares, if in fact he ever owned them?

(2) Is Dalton estopped from claiming these shares, if he ever owned them, by his conduct in the Lanra Davidson case?

(3) Is the interlocutory decree of Jüne 19, 1903, pleaded in bar by Dalton, final and conclusive, as to his rights?

(4) If such decree is not conclusive, then in what respect is the present interlocutory decree wrong in practically reaffirming the old interlocutory decree. The latter question will of necessity involve the discussion of several others, which can be outlined if we reach that point.

Taking our questions, supra, in their order, we can get at the meat of this controversy so far as Dalton is concerned. Doing to the first question, we are impressed that counsel for plaintiffs have misconstrued the scope of the judgment in the Laura Davidson case as rendered by the Mississippi Circuit court, and as slightly modified, and affirmed by this court. There is some broad language in the latter part of that judgment which lends credence to plaintiffs’ contentions. Judgments, however, cannot be broader than the issues made by the pleadings. That action was one by Laura Carter Davidson, one of the devisees against the other devisées, the corporation, Dalton, Lavin and others. In that petition Dalton and Lavin are not described as owners or alleged owners of the land, but it describes the I. M. Davidson Eeal Estate & Investment Company as the party claiming the land, and then describes Dalton and Lavin as persons who hold deeds of trust given them by such corporation on these lands. It is true that in the prayer of the petition it is said:

“Wherefore, plaintiff prays the court to cancel, set aside and for naught hold the decree of partition aforesaid and the order of sale made thereunder, set aside and for naught hold the report of sale made by the special commissioner thereunder, set aside and for naught hold the order of this court ordering said special commissioner to make and execute the deeds aforesaid, and to cancel, set aside and for naught hold both of the special commissioner’s deeds above referred to as constituting a cloud upon the title of plaintiff, and to render judgment against the defendants, determining the title to said real estate, and quieting and confirming plaintiff’s title to an undivided one-ninth interest in and to all the above described real estate, and to enjoin the defendants, their officers, attorneys, agents, servants and employees from selling or disposing of said real estate, or otherwise dissipating or injuring the same, pending the final disposition of this cause; and that the court appoint some suitable person to take charge of said real estate as trustee or receiver, collect the rents and profits thereof, and pay the same over to this plaintiff and the other heirs of Isaac M. Davidson, deceased, as is provided by the terms of said will, and for all other proper relief in the premises plaintiff will ever pray. ’ ’

Dalton never claimed any interest in the share of Laura Carter Davidson, except in so far as the deed of trust given him by the corporation might affect her claims. The answers of the other devisees in that case prayed for no affirmative relief. Their answer simply admitted the facts pleaded by Laura Carter Davidson, and asked that, judgment be entered as by her prayed. This petition when fairly construed only asked for a determination of the title so far as Dalton is concerned on the ground that he was a mortgagee under a conveyance from the corporation. We think this decree, so far as Dalton is concerned, Qut up by the roots his mortgage lien, but as to him and Lavin went no further. If as a fact, Dalton owned two shares in this estate, we are not prepared to say that the Laura Davidson decree barred his rights. It is clear that he was only sued in that action as mortgagee, and the decree could not be broader than the issues-made by the pleadings. 'Plaintiffs’ plea of res adjudicata on the grounds above detailed and discussed should be overruled. The quieting of title in that judgment decreed, should be construed to mean, so far as Dalton and Lavin are concerned, as only applicable to their deeds of trust, which covered the whole estate, and as given by the corporation. The two alleged grantees of Dalton by their answer in the Laura Davidson case were not asserting their title to these shares and asking affirmative relief. They seemed to be content with the views of the plaintiff which only attacked Dalton in so far as he claimed a mortgage lien upon the whole estate. We deem the plea of res adjudicata not well founded.

G-oing now to the second question. Does the conduct of Dalton in the Laura Davidson case now preclude him from claiming these shares? In his answer he did defend the title of the corporation to all these lands. This he would naturally do in the protection of the deed of trust which he held from the corporation. There is no question that Dalton’s whole conduct in that case was to uphold the sale under partition, which sale, if valid, passed title to all the lands to the corporation. Does this conduct now estop him from now claiming the interests, if any he had, prior to the sale? His grantee did join in a request that the judgment in partition be set aside and for naught held. This Laura Davidson asked and in her request they joined. That request only affected the deed to the corporation and subsequent mortgages made by the corporation. At least it was only granted that far. Had the whole request been granted in the Laura Davidson suit, and both the final and interlocutory judgment been uprooted, how would Dalton’s conduct in that case have affected his grantees, if in fact they had actually parted with their title by deeds to Dalton? One cannot complain of the acts of another unless such acts work injury to him. If as a fact Dalton owned these.two shares, his conduct in that case could not have worked injury to his grantees. He had been adjudged to own them, and that decree left him the adjudged owner under the interlocutory decree of June 19, 1903. We do not believe that his conduct of necessity bars him of his claimed rights. These plaintiffs must strike deeper than the doctrine of es-toppel.

Passing to the third question. Does the first interlocutory decree finally fix the rights of Dalton? In the trial resulting in the modified interlocutory decree, and from which this appeal is taken, he took that position in his answer. The question then is, what is the character of the interlocutory decree of June 19, 1903 ? Is it such a decree as finally fixes rights in the case at bar? Upon motion to modify our judgment in the Laura Davidson case (226 Mo. l. c. 39), we said this.concerning that interlocutory decree:

“It developed in-the evidence in the case at bar, that Dalton had been allowed in the partition suit $150 per month for his services. It was also proven that Dalton whilst acting as trustee had bought the interests of two of the devisees for $8000 and had sold them for $15,000, thus clearing $7000 on the deal. The plaintiff, in her motion, asks us to modify the interlocutory judgment in the partition suit so as to cut down Dalton’s allowance for services, and to charge him with this seven thousand dollars. Counsel misconceive the case we have before us. The case at bar is an action to set aside the judgment of the circuit court' of Butler county, because of fraud in the concoction of that judgment. The circuit court of Butler county construed the will, declared that no valid trust had been created thereby and entered first an interlocutory judgment of partition and order for sale. Afterward it approved the report of sale and entered its final judgment. This entire judgment was attacked for fraud in the present case, which is a direct proceeding in equity to set the same aside. The trial court held that there was fraud in the proceeding occurring after the interlocutory judgment, hut that there was no fraud in the procurement of this interlocutory judgment. In these views of the trial court we concurred. There was no fraud in the proceedings thus far, hut the fraud began thereafter.
“Had there been an appeal from this interlocutory judgment, or from the final judgment, then we could review the matters urged in this motion, hut there was no such appeal, and in the case at bar, the only thing we can do as to this interlocutory judgment is to set it aside on the ground of fraud in its concoction, or in the absence of such fraud, permit it to stand. The latter we have done, so that the original partition suit stands in the circuit court of Butler county with an interlocutory judgment only. That case is not now before us and never has been before us. The case we have is simply one attacking the judgment in the partition case. It should be remembered that in the partition case after the affirmance of the judgment in this case, there is only an interlocutory decree and not a final decree. As to what powers the circuit court of Butler county has as to this simple interlocutory decree, it is not proper for us to say in this case. "We can only discuss that question, if the partition case ever reaches this court. For the present, the circuit court of Butler county will have to wrestle with all questions pertaining to its duties relative to the interlocutory decree. We can only say that there was no fraud in the concoction thereof, so far. as this record is concerned, and protect the interest of Dalton thereunder so long as it stands.”

It thus appears that we by no means attempted to affirm that decree, for the good reason that it was not before us upon the question of error or no error in its make-up. The case wherein it was entered was not before ns. We were trying a direct proceeding in equity to set aside that decree as well as the final decree on the ground of fraud. The Mississippi Circuit Court found no fraud in the case until after the entry of interlocutory judgment. We affirmed that court’s judgment upon that question. We, however, left the trial court to wrestle with the exact status of that decree when such court undertook to proceed further with the case. That decree, therefore, has never been reviewed by any court except upon the question of fraud or no fraud in the concoction of the judgment. Since that time the Butler Circuit Court has proceeded with the' partition suit and has modified the original interlocutory decree in certain phases and from this new decree plaintiffs have appealed. Under these circumstances is Dalton’s plea of res adjudicaba good? This bespeaks a consideration of the legal status of interlocutory decrees in partition suits. Under our statute (Sec. 2038, R. S. 1909), parties in a partition case can appeal at either one of two stages of the case. Such statute says the parties may appeal “from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case. ’ ’

But before discussing the situation of an ordinary interlocutory judgment in partition there is a question peculiar to this case which should meet with disposition. In this case there were both an interlocutory judgment and a final judgment. No appeal was taken from either. Later both were attacked for fraud in the Laura Davidson case and the final judgment set aside for fraud as well as for other reasons. Does this situation make the interlocutory decree conclusive, although it be conceded that it would not be conclusive upon the parties until after final judgment in the ordinary case? We find no authority for such a .situation and must permit this question to ride off upon the reason of the thing. Fraud vitiates everything which its withering finger touches. Fraud in the concoction of a judgment, when so adjudged by a chancellor, leaves the case as if no judgment had ever been entered. So we think that when the final judgment, so thoroughly soaked with fraud, as was decreed in the Laura Davidson case, was held for naught, then it left the partition suit pending just as if no final judgment had ever been rendered, and as to the interlocutory decree theretofore entered left all parties in the possession of all rights they would have under an interlocutory decree in any other partition case. We, therefore, conclude that the circumstances of this case do not take it out of the ordinary rules.

Reverting now to the previous question, what is the legal status of this interlocutory decree of 1903 as being conclusive upon the rights of the parties? In 1891 the statute relating to appeals was amended allowing an appeal from an interlocutory judgment in partition. That provision is carried forward to our present statute, Revised Statutes 1909, section 2038.

In Aull v. Day, 133 Mo. 337, all the authorities are reviewed upon the character and legal status of an interlocutory judgment in partition. Many of these authorities go hack of the Act of 1891, supra. At page 347 of that case Macfarlane, J., says:

“That the final judgment in partition proceedings is merely interlocutory has often been declared by this court, and is so well settled that a citation of the cases is deemed unnecessary. But see Murry v. Yates, 73 Mo. 15.”
“That such interlocutory judgments, made in the progress of a cause, are always under the control of the court until a final decision is reached, and may be modified at any time to meet the exigencies that may arise, is equally well settled. [Bobb v. Graham, 89 Mo. 207.]”
“The uniform holding of this court before the statute allowing an appeal, that an appeal, or writ of error, for such interlocutory judgment, would not lie, rests npon the theory that such judgment continues under the control of the court and is subject to corrections and modifications. The right to correct and modify its own orders,‘ springs from the court’s power to control its own action in pending poceedings, so as to subserve the ends of justice. ’ [Bryant v. Russell, 127 Mo. 433.] Courts should not leave the matter of controversy ‘in such a condition that its final administra^ tion may be wholly inconsistent with equity and good conscience.’ [Shields v. Barrow, 17 How. (U. S.) 130. See, also, Hiles v. Rule, 121 Mo. 256.]
“Elliott says: ‘Until there is an ultimate judgment the case is not finally disposed of, inasmuch as the trial court may change its rulings, award a venire de novo, grant a new trial, or make some such order, notwithstanding the fact that in other rulings it may have clearly manifested a purpose to carry its rulings into the ultimate judgment or decree.’ [Elliott, App. Proc., sec. 83.]
“Black, in his work on Judgments (sec. 308) says: ‘ Art interlocutory judgment or decree, made in the progress of a cause, is always under the control of the court until the final decision of the suit, and it may be modified or rescinded, upon sufficient grounds shown, at any time before final judgment, though it be after the term in which the interlocutory sentence was given.’ ” And in page 348 of what opinion he thus discusses the Act of 1891, which is in effect, if not in exact words, our present statute:
“But it is said that section 2246, Revised Statutes 1889, as amended by Laws of 1891 (page 70), makes . the judgment in partition, which determines the rights of the parties, final on that issue and is therefore beyond the control of the court after the term at which it was rendered.
“The only purpose of the statute is to give a right to appeal from such an interlocutory judgment. Nothing in the act discloses an intention to change, in any respect, the character of the judgment in form or effect. Indeed the statute denominates the judgment as ‘interlocutory,’ and provides that ‘a failure to app'eal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.’ The plain purpose of the law is to give a party the right of appeal from the order when made, hut all his rights to have the adverse ruling reviewed on appeal from the final judgment are reserved. [Ess v. Griffith, 128 Mo. 60.] If no direct appeal is taken the interlocutory judgment stands merely as a part of a pending proceeding and is under the control of the court.”

Of course if an appeal is taken hy either party from the interlocutory decree and the judgment of this court invoked, and that interlocutory decree is affirmed, then the rights of the parties become firmly and finally fixed, and such judgment of affirmance makes the interlocutory judgment conclusive, and one which could be pleaded in bar. This rule is well stated by Lamm, J., in Padgett v. Smith, 206 Mo. l. c. 312, in this language:

“It has been held that an interlocutory judgment in partition, unappealed from, remains interlocutory in character and within the supervision of the court until final judgment at a subsequent term. [Aull v. Day, 133 Mo. 337; Ess v. Griffith, 128 Mo. 50.] It was argued in the Anil case and the Ess case that the mere statutory right to an appeal from an interlocutory judgment, though unused, changed the interlocutory character of such judgment into a final one; but that argument was disallowed and it was held that the unexercised, naked right to appeal from such judgment left the judgment interlocutory in character. But the situation changes when an appeal from such order is taken and the judgment is affirmed here. The judgment then, in effect, becomes the judgment of this court; and may a court, nisi, set aside our judgment, or'be held to commit error because it does not? To so hold reverses the logical order of things and opens the door to confusion.”

In the modified interlocutory decree it is said: »

‘ ‘ The court further finds the interests of the parties to the above described lands to be as follows; that James L. Dalton is entitled to an undivided two-ninths interest in and to all of said above described real estate as heretofore found by the interlocutory decree of June 19, 1903, and affirmed by the Supreme Court in the case of Laura Carter Davidson versus I. M. Davidson Real Estate & Investment Company, James L. Dalton and James Lavin, on March 1, 1910.”

We have italicized the objectionable recital so far as the present point is concerned. That interlocutory judgment was not affirmed in the Laura Davidson case and could not have been affirmed in that case. All we did say or could say in that case was that the record before us in that direct proceeding would not authorize us to vacate such judgment for fraud. The question of error or no error, mistake or no mistake, as to that judgment was not before us, and this is made plain in the opinion upon plaintiffs’ motion to modify our judgment in that case. [Davidson v. Real Estate and Investment Co., 226 Mo. l. c. 39.]

From this it follows that there is no vitality in Dalton’s plea of res adjudicata. This leaves him a general denial in the present record. The interlocutory decree not being conclusive, how stands the adjudication in the present record that Dalton owns two-ninths of the Davidson estate? Plaintiffs Rose Belle Finley and Ira M. Davidson claim these shares. Dalton claims them by virtue of deeds to them, as found and recited in the original decree. Upon the present record plaintiffs Rose Belle Finley and Ira M. Davidson make proof to the effect that they are two of the nine devisees under the Davidson will. This proof makes a prima facie case for them. If Dalton introduced his deeds in this record, we failed to find them. He could have introduced them under his general denial. As we see it he rested content by introducing the original decree reciting these deeds as made long prior to this suit. But we need not stick in the hark upon this point. There is oral evidence in the record which shows that Dalton whilst acting as trustee under the will, and whilst in law and in fact the trustee of these two parties, bought their respective interests for $4000' each; that he afterward bargained their interests.to others for $15,000. He claims in this record that he did not transfer the interest, because he was never paid for them. The original replies of these two plaintiffs were put in evidence in the case, and frgm them it appears that they admitted the execution of the deeds to Dalton, but averred that he was their trustee, and other facts which would avoid the deeds. This oral proof as to the deeds went in without objection and the case seems to have proceeded upon the theory that Dalton did have deeds from these two devisees. This being true we would not disturb the modified decree, but for one thing. The fiduciary relation between these parties at the time of these deeds is shown by the evidence. That fact admitted, it devolved upon Dalton to show the fairness of his contracts or deeds. That fact admitted, the burden shifted and it was for D'alton to explain his conduct and show the fairness of these deeds. This he did not do and made no attempt to do. There is so much in this record tending to show the absolute inadequacy of this price, that we cannot see how Dalton could carry the burden imposed upon him by the fiduciary relationship. We do not see how be was adjudged an interest under these deeds in the first decree. This record shows that he was adjudged an interest under these deeds in the first decree. This record shows that his contracts with these two wards were utterly unconscionable, and his deeds could not stand. Even did his proof in this case consist of the deeds themselves, rather than the parol proof of them, the modified decree should not stand. As to these two interests the court should have declared them to be in Eosa Belle Finley and Ira M. Davidson, and not in Dalton. Dalton, in equity and good conscience, should he allowed a lien thereon or the proceeds thereof for the $4000 each, which he advanced and paid these parties, together with six percent interest from the date of payment. Such would do equity to Dalton and is certainly all that he is entitled to under this record, or in our judgment, taking into consideration his admission here, under any record he cpuld possibly make. To this further extent this modified decree should he further modified.

Going now to the proposition of the allowance of $150 per month for fifty-eight months’ service. Upon this item the prior decree is not conclusive. The weight of the proof before us in this record shows those services to have been $50' per month, and the item should be reduced so as to allow to Dalton but $50 per month for fifty-eight months, rather than $150, with interest on said allowance at six per cent from the date of the original •allowance.

As to the other allowance to Dalton we find no fault. He advanced more than $16,000 for the benefit of that estate and should be repaid that sum. Plaintiffs contend that he settled this by taking the notes of the corporation. There is sufficient evidence m the record to authorize the trial court to find that Dalton is still the real owner of the note given on his indebtedness due from tbe estate and that snob note bas not been paid, and bence tbe indebtedness not paid. Not only so, but there bas been no assignment of tbe indebtedness by Dalton, save and except a receipt given tbe sheriff at tbe sale. That sale and all matters connected with it was uprooted by tbe Laura Davidson suit. The estate got tbe benefit of these advancements from Dalton. It got tbe benefit of bis services, and each should in fairness be paid out of tbe estate.

This concludes tbe Dalton end of this much mixed controversy.

III. Defendant Isaac H. Barnhill is in this shape upon tbe record. By tbe modified interlocutory decree tbe court found that be bad no title to any part of tbe Davidson estate lands, by reason of bis attempted purchase of an interest therein, nor did be have any title to lot 28, tbe Davidson Plats, a very valuable piece of property, and decreed title out of him. Tbe court also found that be was indebted to tbe estate in tbe sum of $794.68, but on tbe other band found that Barnhill bad advanced to Ida M. Rhodes $17,222.07 or her interest in tbe estate, and directed such sum to be paid out of her one-ninth interest in tbe net proceeds of tbe sale. Barnhill complains of tbe first three items above named and tbe plaintiffs of tbe latter.

Tbe pleadings may be of interest. Tbe petition we have in our short statement.

Barnhill in a voluminous answer says: (1) that be denies all facts in tbe petition stated except those specifically admitted; (2) denies that Dinning, Atkinson and Hill are proper plaintiffs or have any interest in the subject of litigation; (3) denies that Ida M. Rhodes or Chris, her husband, bas any interest in tbe case, and avers that be bought tbe interest of tbe said Ida M. for $11,000 on the 12th of October, 1903; (4) that be is tbe owner of lot 28, having purchased after a foreclosure sale, and after detailing at great length just how he procured the title, asks that the original decree be so modified that it find title to this lot to be in him; (5) that he was entitled to $5850 for assisting in managing the Davidson estate, and only received from it $1107.15, and is entitled to receive $4742.85 more; (6) he then recites the organization of the I. M. Davidson Real Estate & Investment Company and avers that certain sums were paid to the widow and four minor dev-isees by such company for their maintenance and support, and asks that such sums be charged by way of advancements; (7) he says that he and Ferguson tried to dissuade the widow from selling them her $10,000 stock in the corporation for $3000, but that she persisted and they bought the stock, at that sum, and that thereby he is entitled to a one-half of the widow’s former one-ninth interest in her husband’s estate and asks the court so to decree; (8) he attacks the appointment of Whaley as receiver by the circuit court of Mis-sissipi county, and charges that D. W. Hill, through Whaley, has been in possession of the property, collecting rents, and he asks that they be called to account; (9) he avers that the circuit court of Mississippi county wrongfully ordered $300 per month to be paid by Whaley to the widow and four former minors, and that Whaley has so done, and that by.some unknown process one-half of that sum has each month found its way into the pockets of Dinning, Hill and Atkinson, and he asks that these sums be declared an additional lien upon the interests of these five devisees and emphatically demands that the lawyers aforesaid be by judgment of the court directed immediately to “cough up” tbeir part of such sums; (10) this défense in -another attack upon Dinning, Hill and Atkinson, the-details of which need not be noted here; and (11) lastly it is urged that the Butler Circuit Court acted under a mistaken belief that the estate had been fully settled when it discharged Dalton as trustee in 1903, and he asks the reinstatement of Dalton.

By reply plaintiffs fully pleaded former adjudication and estoppel as to the claims of Barnhill to any actual interest in the estate, including lot 28 above mentioned, which lot it is averred was held by Barn-hill for the corporation. The reply in respectful language then places in issue all other matters of this lengthy answer.

So much for the pleadings in the Barnhill side of this controversy.

Most of these contentions can be disposed of by stating a few of the record facts. Lot 28, mentioned supra, is a very valuable property, worth $20,000 or more and bringing in rent at the rate of about $180 per month. When Dalton was trustee this property had been converted from a hotel into flats. By direction of the court it was mortgaged by Dalton for $8500. During the pendency of the Laura Davidson case this mortgage was foreclosed and Dalton agreed to and did buy it in for the Real Estate & Investment Company. Later Dalton deeded to Barnhill, and he at the time took the deed with the understanding that he, like Dalton, was holding it for the corporation. Barnhill put a new loan on it for $8500 and still later concluded that he actually owned the property in his own right. The loan of $8500 practically covered the price bid at the sale. He took possession of it and collected the rent for himself. The learned circuit judge evidently concluded that the property never in fact belonged to Barnhill, but remained at all times as the property of the corporation, and passed from the corporation by the Laura Davidson decree in this court. The evidence fully justifies the finding of the lower court in decreeing the title, of this property to be in the Davidson estate. Barnhill left it with the same-size mortgage upon it and collected and appropriated more rents than were sufficient to meet the accrued interest and costs of sale. From other parts of the evidence and the decree it is evident the court charged him with these rents and credited him with all that he was entitled to receive and yet found him indebted to the estate over $700, which finding is likewise correct.

Next he urges that he is entitled to have decreed in him one-half of the interest of the widow. This contention is based upon the proposition that the widow, Mary J. Davidson, owned $10,000 of the stock in the corporation. That he and Ferguson urged her to hold her stock, but that she insisted upon selling it to them for $3000, and they bought it. They alleged that the corporation was organized to take over the Davidson estate and that Mrs. Davidson was a party to the organization. We need not go further into details. The history of this corporation is fully detailed in the Laura Davidson case, 226 Mo. 1. The sale of this stock did not by law carry the title of Mrs. Davidson to the estate property, if any title she had. As said in the opinion in the other case the Davidson devisees viere not possessed of business acumen, and such can be gathered from this case. The trial court was right when it declared that neither Barnhill nor Ferguson was entitled to Mrs. Davidson’s interest in the estate.

Next it is contended that Barnhill is the owner of the interest of Ida M. Rhodes, by virtue of a deed from her and her husband. The learned trial judge held that he was not so entitled, because, although not a party to the Laura Davidson suit, yet he as secretary and Ferguson as president of the corporation controlled and managed that suit. That in such suit they urged that the corporation was the owner of all such real estate. That Barnhill and Ferguson were the active managers of the corporation’s defense to that action there can be no question. That all the Davidson devisees asked that the corporation’s rights to that property he determined there can he no question. The petition was broader than a mere action to cancel the judgment for fraud, but as to the corporation the plaintiff’s petition asked that the corporation’s title to the property be determined. The other devisees by answer joined in that request. One does not have to be a party to a suit to be estopped by the judgment in the case.

In 2 Black on Judgments (2 Ed.), sec. 583, p. 877, it is said: “ ‘Every member of a corporation is so far' privy in interest in a suit against the corporation that he is bound by a judgment against it.’ This doctrine has also the sanction óf the United States Supreme Court; and is approved and accepted in many' of the States, as well as in England.” That one does not have to be an actual party to the suit to be estopped by the judgment therein is shown by the following authorities: State to use v. Coste, 36 Mo. 272; Strong v. Insurance Co., 62 Mo. l. c. 296; Wood v. Ensel, 63 Mo. l. c. 194; Cooley v. Warren, 53 Mo. l. c. 169; Landis v. Hamilton, 77 Mo. l. c. 565.

In the case at bar all of the devisees in the Davidson estate, in the Laura Davidson case, either by petition or answer, were challenging the title of the corporation. This challenge went to the fee title to all the property involved in this case. In this respect the challenge was different from that to Dalton and Lávin discussed supra. Here the Davidson devisees all join in a protest against the alleged title of the corporation. Barnhill and Ferguson, although actively in charge of the case for the corporation, as officers of the corporation, at no time claimed any title in themselves for the two interests they now claim. Neither did they claim the interest of the widow. Under their directions thé corporate defendant claimed the title. They aided and abetted the corporate defendant in so claiming. They not only managed the case for the corporate defendant, but as witnesses testified for it, and all this after their alleged deeds. Under these circumstances, the trial court was. right in holding that they were es-topped to now assert title in themselves.

Barnhill next complains that the trial court erred in refusing to allow him $75 per month for his services in managing the Davidson estate. In this the trial court was right. Barnhill was an officer and employee of the corporation. He was employed and paid by the corporation. He was not in charge of the estate as a cotenant, hut the corporation was the party in charge of the estate. Not only was the corporation the party in charge of the estate, hut it was wrongfully in charge of it. It was a- tortfeasor, and neither the corporation, nor Barnhill, its employee and agent, is entitled to recover. As to the accounting had by the court, between Barn-hill and the estate, the trial court seems to have carefully weighed each item. It reopened the case upon its own motion and recalled Mr. Barnhill to explain many items of account, especially those of the corporate defendant. Under the circumstances we are of opinion that the trial court’s judgment upon this matter should not be disturbed.

The foregoing are all of Barnhill’s contentions that we deem worthy of space in this opinion.

Plaintiffs urge that the trial court’s action was erroneous in allowing Barnhill a lien on the interest of Ida M. Bhodes, and mainly for the reason that such a judgment was not within the purview of the pleadings. The case is in a peculiar situation throughout in this respect. As heretofore indicated the trial court seemingly proceeded upon the theory that we had affirmed the original interlocutory decree, and that the subsequent petition and answer and replies went merely to questions of modifying that decree. Plaintiffs also contend that the decree in the Laura Davidson case precludes both Barnhill, and Ferguson as lienors. In this we think plaintiffs are in error. The contest in that case was one over title and not liens, save and except the liens of Dalton and La-vin. ■ In other words, that petition attacked no lien, except snch as had been pnt on the estate by the corporation. It was not inconsistent for both Barnhill and Ferguson in that case to assert title in the corporation, and now say they have a lien upon' snch a title in whomsoever it may be found to be vested. By that petition in that case they were not called upon to say whether they owned liens upon the property, even though the fee title might not be in the corporation. They did not hold liens under the corporation, but held pre-existing liens. Had the corporation won, their liens, if good at all, would have been good against the corporation and we think good against the devisees in whom title under that case was decreed. The lien given Barnhill by the trial court was for pre-exist-ing mortgages and advances made by Barnhill and other parties to Ida M. Roberts upon her interest in the estate. Barnhill for value had acquired all these liens, and they all total the amount found by the court. These debts are debts honorably contracted and are not seriously disputed. Common honesty would demand their payment out of the interest of Ida M. Rhodes, if such can be done by a decree under the pleadings.

It seems to appear, however, that the trial court has allowed $6200 of these liens both to Barnhill and Dalton. As we gather it Dalton held two deeds of trust on the Ida M. Rhodes interest and that Barnhill claims to be the assignee of these items. They were allowed to Dalton as a lien, and if they are the same items the court upon a remanding of the cause should amend its decree so as to either take these items from Dalton or from Barnhill. To this end it might hear additional evidence. It strikes us that there has been a double charge here. This, however, can be determined fully by the trial court before modifying its decree under the directions -which we will give. Now going to the pleadings it is urged that Barnhill does not ash for such relief in his answer. It is urged that he asks for the full title rather than for a lien. This is true, but it must be recollected that in partition proceedings the court has wide latitude in the adjustment of all equities. The very object of the proceeding is to adjust all equities, and thus leave the purchaser at the partition sale with a clear record title. Again it should be remembered that in the' original pleadings these claims were made in the answer by the lien holders, so far as they then existed. We are therefore of opinion that the judgment nisi reached the real equities of this case upon this question, under the evidence before it, and as the case will have to be reversed and remanded with directions for other reasons, the court is directed to permit Barnhill to so amend his answer as to meet this objection. We are rather of opinion that the present record will sustain the judgment, but such amendment to conform to the proof will aid matters. Ida M. Rhodes owes certain sums to Barnhill and equity demands payment.

TV. Defendant Ferguson by his answer sets up the same things as pleaded by Barnhill, except that he claims the interest of Jay Davidson, whereas Barn-hill claimed the interest of Ida M. Rhodes. He likewise claims one-half of the widow’s interest. In fact, his answer, with the exception first noted, is practically a duplicate of the Barnhill answer, except of course lot 28 is not spoken of in this answer. The trial court found against him or his claim for a half interest of the widow’s part and-also said he did not own the Jay Davidson interest, but gave him a lien upon that interest for $22,633.30. The court found that he was not entitled to $75 per month for managing the Davidson estate. What we have said as to Barnhill settles all contentions as to Ferguson. The reply raised the same issues. The plaintiffs opposed his lien on Jay Davidson’s interest upon the same grounds that they opposed the lien granted Barnhill upon the Ida M. Rhodes interest. What we said as to the justice of the debt from Ida M. • Rhodes to Barnhill applies with equal force to the debt from Jay Davidson to Ferguson. They were created and acquired much in the same way. What we said as to the pleadings in the one applies to the other. Under the circumstances we find no reason to disturb this part of the decree, but leave it with the suggestion made in the paragraph of this opinion relating to Barnhill.

V. We come now to the contentions of the corporation. With this defendant the trial court took an accounting. It was painstakingly done. As stated before, the court opened up> the case for further evidence and himself interrogated about many items in the long accounts filed by this defendant with its answer. This evidence we have gone over carefully. The court charged the corporation with rents and other moneys received from the estate and gave credit for such items as went to keep up the estate or improve it substantially. Plaintiffs contend with much force that this defendant was a tortfeasor, and is chargeable not with what it actually received in rent, but with the reasonable rental value of the premises. Strictly speaking this may be true, but the evidence shows that the corporation was trying to get all the rents it could, and whilst it might not have collected the full amount of $1000 per month, which the evidence tends to show was the rental value of the estate during its holding, yet we do not feel justified in disturbing this finding for the slight difference it would make. The court upon this carefully scrutinized accounting found the corporation indebted to the estate in the sum of $5490.-09, and we are disposed to let that matter stand as found.

VI. The decree before ns is in the nature of a modification of the original decree, and the trial court evidently intended it so. In other words he intended it to supplement the original decr'ee. The original will is before us in the present record, and from it we can hold as in the original decree held, that the clause attempting to create a trust is void.’ The trial court necessarily so held when it, in the modified decree, granted partition. The decree should be modified further to be more explicit upon this point. Both parties so treated it in the last trial. Other points made by divers interests have been considered, but we do not feel that this opinion should be further lengthened with a discussion of them.

The judgment will, therefore, be reversed, and the cause remanded to the circuit court, with directions to modify its interlocutory decree so as to make it conform to the views herein expressed, and then proceed with the cause to a sale, distribution and final judgment. ' To that end evidence may be taken upon the questions suggested in this opinion, and amendments made to the pleadings as herein suggested.

Let the judgment be reversed and the cause remanded with the directions aforesaid, to the end that this cause may be brought to a speedy end. All concur.

UPON MOTION FOR REHEARING AND MOTION TO' MODIFY.

PER CURIAM.

Defendant Dalton files motion for'rehearing. This we.have examined and are of opinion that it should be overruled. Plaintiffs file motion to modify our opinion and directions therein given. In the opinion it is held that Dalton has no title to the shares of Rose Belle Findley and Ira M. Davidson. It is further held, however, that he is entitled to a lien upon these shares for $4000 each, the purchase price paid by him and six per cent interest from the dates of payment. Prom the original interlocutory decree in evidence in this case it appears that Dalton had the nse of lands during the years intervening from his purchase until October 13, 1903, when it was turned over to the corporation defendant. In the original interlocutory decree these shares were taxed up with $3000 received by Dalton. Having received the rents and profits, he should not receive the interest on his money. The opinion is therefore modified, so that Dalton will be permitted to receive his $4000 for each share, with interest at six per cent from October 13, 1903, instead of from the date of payment as heretofore ruled. The result is that the motion to modify our opinion filed by plaintiffs is sustained' and the opinion modified as above indicated.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    HARRY RASHALL v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    April 8, 1913.
    1. FOREIGN LAW: Pleading and Proof: Negligence: No Fellow-Servant Statute. If the statute of another State is the foundation of the cause of action it must he both pleaded and proven; if it is only evidentiary, it may be proven though not pleaded. In both cases it must be proven. But where the case is founded on negligence and consequent personal injuries, and no statute was pleaded or proven, and no decisions of that State declaratory of the common law were introduced, but there was a stipulation that there is in the State in which the accident occurred no statute governing the relation of fellow-servants, the case will be disposed of according to the principles of the common law as it has been expounded in this State.
    2. NEGLIGENCE: Yard Man: Humanitarian Rule: Might Have Seen. The defendant’s servants operating its trains were not required to look for a yard clerk, whose duty it was to traverse the switching yards and check up the cars as they came in and whose foot, as he walked across the track in front of a slowly moving train, which he saw, caught in a switch; the duty attached to his calling to look out for his own protection. Hence, it was error to instruct that if the servants in charge of the engine saw, “or hy the exercise of reasonable care and diligence might have seen,” .plaintiff’s peril in time, by the exercise of ordinary care, to have stopped the engine in time to avoid injuring him, he was entitled to recover. The defendant is not liable unless the train men actually saw him in time by the exercise of ordinary care to have stoppe'd the engine before injuring him. And where there is no testimony on plaintiff’s part that they saw him at all, and the engineer testifies he did not see him at all, the switchman that he did not see him in a position of peril, and the fireman that he saw him just as the engine struck him, there can be no recovery under the humanitarian rule, and the case should not have been submitted to the jury. ■
    Appeal from Jackson Oircnit Court.-"-Son. Henry L. McGune} Judge.
    REVERSED;

      Martin L. Glardy, Edw. J. White and Martin Lyons for appellant; Elijah Robinson of counsel.
    (1) The plaintiff, under his own statement, was guilty • of contributory negligence in attempting to cross the track directly in front of a moving locomotive approaching him in plain view. Loring v. Railroad, 128 Mo. 349; Moore v. Railroad, 176 Mo. 544; Hook v. Railroad, 162 Mo. 569; Vanback v. Railroad, 171 Mo. 338. Plaintiff assumed the risk of injury from moving cars and engines in the defendant’s railroad yard as a matter of law.. Aerkfetz v. Humphrey, 145 U. S. 418; Loring v. Railroad, 128 Mo. 349. A railroad company was not required to block switch frogs at common law and the risk of injury from stepping into such open, obvious places as unblocked frogs, was assumed as a matter of law in Illinois. Railroad v. Crow, 155 Ill. 72; Railroad v. Massig, 50 Ill. App. 666; Railroad v. Healey, 108 Ill. App. 531; Railroad v. 0 ’Hara, 59 Ill. App. 649; Andeberg v. Railroad, 98 Ill. App. 207; Eailroad v. Kithcart, 79 O. C. A. 150; Donogan v. Eailroad, 165 Fed. 869. In States where the doctrine of assumed risk has not been emasculated, by the courts, as it has in Missouri, an employee is held to assume the risk of catching his foot in unblocked switch frogs as a matter of law. York v. Eailroad, 86 Ark. 244; Eailroad v. Higgins, 90 S. W. Eep. 200; Sheets v. Eailroad, 139 Ind. 682; Eailroad v. Healey, 108 Ill. App. 531; Donogan v. Eailroad, 165 Fed. 869. Plaintiff’s evidence wholly failed to show that the defendant’s employees in charge of the engine which injured him, could have stopped the engine by the exercise of reasonable care on their part, after his perilous position was discovered, and for this reason, the demurrer should also have been sustained. Boyd v. Eailroad, 105 Mo. 371; Tanner v. Eailroad, 161 Mo. 497; Watson v. Eailroad, 133 Mo. 250. (2) The court erred in giving instruction one on the part of the plaintiff. The first instruction given for the plaintiff, was erroneous in the following particulars: 1st — It assumed that the plaintiff was in the due course of his employment at the time of his injury; 2nd — It assumes that the employees in charge of the engine, by ordinary care, could have prevented the injury to plaintiff, after his danger was discovered, by means of the appliances at hand and, 3rd — This instruction was also erroneous in submitting the legal proposition to the jury that the plaintiff would be entitled to recover unless he assumed the risk of being so injured. None of the instructions define the term of assumed risk but leave.this question of law wholly to the jury to fignire out.

      Frank P. Walsh, E. B. Morrison and James P. Aykoard for respondent.
    (1) The decisions of 'the courts of Illinois were not put in evidence, hence this case is governed by the common law, which, is presumed to be the same in Illinois as in Missouri, and the decisions of the Missouri courts control the case. Tennent v. Ins. Co., 133 Mo. App. 345; Leather Co. v. Ins. Co., 131 Mo. App. 701; McPike v. McPike, 111 Mo. 226; Jordan v. Pence, 123 Mo. App. 324; lioughtaling v. Ball, 19 Mo. 84; 6 Am. & Eng. Ency. Law (2 Ed.), 284; Express Co. v. Owens, 146 Ala. 412; Bank v. Bank, 128 N. T. 26. (2) Plaintiff was not a fellow-servant of the employees of defendant in charge of the engine. Koer-ner v. Car- Co., 209 Mo. 141; Lanning v. Railroad, 196 Mo. 647; Parker v. Railroad, 109 Mo. *362; Dixon v. Railroad, 109 Mo. 413; Schlereth v. Railroad, 115 Mo. 87; Nordhaus v. Railroad, 242 Ill. 166; Railroad v. O’Brien, 155 Ill. 630; Railroad v. Otstat, 113 Ill. App. 37; Railroad v. Wise, 206 Ill. 453; Railroad v. Kelly, 127 Ill. 637; Hartley v. Railroad, 197 Ill. 440; Lyons v. Rynerson & Son, 242 Ill. 409; Bennett v. Railroad, 243 Ill. 429; Railroad v. Moranda, 93 Ill. 302. (3) The question.of assumption of risk of injury by being caught in the switch is not 'in the case because plaintiff based his right of recovery on the ground that after he was caught his peril was obvious and the engine could have been stopped by the exercise of ordinary care with the means and appliances at hand. Railroad v. Bender, 32 Tex. Civ. App. 568; Foster v. Railroad, 127 Iowa, 84; Moore v. Transit Co., 193 Mo. 411; Cole v. Transit Co., 183 Mo. 81; Deweese v. Min. Co., 128 Mo. 423; Haworth v. Railroad, 94 Mo. App. 215. (4) The engine could have been stopped by the exercise of ordinary care after plaintiff’s peril was apparent. (5) Plaintiff’s instruction one is not erroneous. Brady v. Railroad, 206 Mo. 509; Jaffi v. Railroad, 205 Mo. 450; Moore v. Transit Co., 193 Mo. 411; Phippin v. Railroad. 196 Mo. 321; O’Connell v. Railroad, 106 Mo. 482.

      STATEMENT BY THE COURT.
    The plaintiff was employed as yard clerk at Bixby, Illinois, where defendant’s railroad yards contain eleven tracks connected by a “lead” with its main track, which is laid north and sonth at that station. The yard tracks are on the west side of the main track. On the 17th of July, 1907, plaintiff had been in the employ of defendant two months, his duties being when a north-bound freight train arrived to go on the yard tracks and check and record in a book the number and initials of each car of that train and then return to the office, which stood east of the main track, and get the proper waybills for that train, and from a comparison of them and the notations on his book to make out cards for each car, and to go back into the yards and affix these cards on the cars of that train, beginning at the north end and going south. Plaintiff testified that on the morning of said day after he had finished checking a few cars placed on the repair track, and while he was returning to the office he heard an incoming north-bound train; that he went to the office, got his book, checked and carded that train, after which he heard another “one pull in,” whereupon he went again to the office, got his book and returned to the yards and checked this train, and then went to the office to make out proper cards, after which he went back in the yards and carded that last train; but found when he got to the south end that there was one car left over, so he went further south to look up that car and found it and carded it; that he did not remember on which one of the yard tracks this car stood, but knows it was on the west side of the main track at the south end, adding: “Well, when I got through carding that car I went back to the west end to get the footpath, because I could not get through because the cars were all along there. I did not want to climb over them cars or under them.” That his intention was to go hack to the office; that while following the footpath he heard a train which got ahead of him about two cars and slowed down; that he walked about twenty-five or thirty-five feet ahead of this train and then attempted to cross the track, when his foot caught right in the switch; that the train was moving about two' miles an hour; that he waved his hands and “halloed to the fireman, and halloed and waved his hands. ’ ’ Ho also stated that it was a clear bright morning; that the engineer and fireman were at their places in the engine which came along and caught his left leg and left arm, throwing him back on his head; that the front part of the engine passed over and severed his two' limbs; that his leg was cut entirely off and left in the' switch, and his arm left hanging by a little bit' of flesh; that he was taken to the office and from there to' the hospital in East St. Louis, where amputations were performed the same morning; that he remained there about one month.. At the time of the injury he wore a wide leather shoe, the whole of which was caught in the switch. The injury happened about eight feet and two inches in front of the switch board connecting the “lead” from the yard tracks to the main track. The engine of the train was at the time about fiftv-two' feet north of this switch stand and was drawing thirteen cars loaded with coal. The train was stopped when the plaintiff was between the engine proper and its tender. There was a footboard or platform at the' front part of the engine. The plaintiff testifies that he seized this with his arms and tried to pull himself up at the moment the engine came upon him but could not detach his foot. He further testified that he had never ridden on this platform and that he did not throw the switch for this train. There was testimony tending to show that such a train moving at two miles an hour could have been stopped within ten feet. On cross-examination one of defendant’s witnesses (Patton) said that, in reply to an inquiry from some one, the plaintiff at the time of the injury stated “that he did not try to get on the footboard but that his foot was caught.” The defendant introduced a number of witnesses .who testified that the plaintiff had ridden on the footboard attached to the pilot of this engine from the time the train left one of the yard tracks and was riding on the same when it stopped before entering the main track oyer the switch where the accident occurred; that when it stopped the plaintiff got off the footboard, went to the switch and threw it open so that the train could come on the main track, and walked hack towards the approaching train, and was injured in endeavoring to get on the footboard of the engine by some slip or mishap; and also by a number of witnesses that after the accident occurred, and when the trainmen were getting the plaintiff from the place where he was injured, he stated he did not know how the accident occurred; and by one witness, that the plaintiff stated that he was trying to get on the foot-board. The defendant also introduced two statements made by its witness Patton (which it was permitted to do on the ground that his testimony had surprised them) and signed by him contradictory of his state-ment on cross-examination as to the remark made by plaintiff at the time of the injury, and which further showed that Patton was the switchman on this engine and saw plaintiff .throw the switch after alighting from the footboard of the engine, and that he (Patton) gave the signal for the train to go on, in obedience to which, it began to move.
    Plaintiff alleged as his cause of action, that he was employed by defendant as yard clerk at Bixhy, Illinois, and that in the course of his duty he was “passing upon and over certain tracks of the defendant at or near what.is known as the main lead at the south end of the yards,” and at' said point his foot was caught and held in the track so that he was unable to escape, and was run over by tbe engine and injured, and that the agents, servants and employees of defendant in charge of the engine saw, or by reasonable care and diligence might have seen, his position of peril on the track of defendant, and by ordinary care might have averted any injury, but negligently ran the train upon his body and injured him, as stated above; and prayed for judgment in the sum of $35,000. It was stipulated that there is no felJow-servant statute in Illinois. The jury returned a verdict for $35,000, from which the defendant has appealed.
    The errors assigned relate to the sufficiency of the petition to state a cause of action; the sufficiency of the evidence to make a case; the giving and refusing of instructions; and the amount of the verdict.
   OPINION.

BOND, J.

(after stating the facts as above). — I. If a foreign law is the foundation of a cause of action or a defense thereto, it must be both pleaded and proven. On the other hand, if such a law is only evidentiary, it may be proven though not pleaded; but it must be proven in both cases, for in no other way can this court apply to it a joinder of issues. The reason is, that our courts do not take judicial cognizance of the laws of sister States or foreign countries when they are issuable facts in any controversy. In such cases formal proof must be made just as of any other fact, and it is immaterial that the court may be possessed of independent knowledge of’ the foreign laws. In the present case there was neither proof nor pleading of the laws of Illinois other than a stipulation that there is in that State no statute governing the relation of fellow-servants; and, hence, in-ferably, that relation subsists as’ it did at common law. But the Illinois decisions declaratory of its common law were not offered in evidence. If that had been done, we should have applied their doctrines to the determination of the relation between the plaintiff and the persons in charge of the freight train. As that was not done, we must apply the common law as it is expounded in this State. For when a question arises as to the non-statutory law of a sister State which has not been proven, and whose territory was a part of that over which the common law of England prevailed, the rule is clear that we will apply our own exposition of that body of law. This will not, however, exclude from our consideration the interpretation of the common law, on points not covered by our own decisions, as it has been made in other States or in England. We may regard these as persuasive authorities depending for their force upon their intrinsic logic. We shall, therefore, consider this appeal from the viewpoint of the Missouri courts in cases to which our statutes abrogating the fellow-servants rule have no application, if it becomes necessary to advert to that doctrine in disposing of this appeal; and we overrule the contention of learned counsel for appellant that, as far as that doctrine is concerned, this case should he determined according to the construction of the Illinois common law as expressed in the decisions of its courts.

II. This case presented "a simple issue as to whether the plaintiff got caught in the switch and was negligently run down by the engine.” [Respondent’s brief, last paragraph.] As has been seen from the preceding statement, this issue was presented in plaintiff’s petition in a form to invoke the application of the last-clear-chance rule, and was submitted to the jury in the following instruction:

“1. The court instructs the jury that if you believe and find from the evidence that on or about the 17tb day of June, 1907, plaintiff was employed by the defendant, St. Lonis, Iron Mountain & Southern Railway Company, as yard clerk, and that in the due course of his employment as such yard clerk he was passing over the track of the defendant mentioned in evidence, and that his foot was caught and held in the track at said point, and he was thereupon run over by an engine of said defendant and thereby injured, and that the employees of said defendant in charge of said engine saw, or by the exercise of reasonable care and diligence might have seen, the plaintiff in such position upon the track of said defendant at said point, if you so find, in time, by exercise of ordinary care with the means and appliances at hand, to have stopped said engine, and so have prevented said injury to the plaintiff, if any, but negligently and carelessly failed to do so,- and that thereby plaintiff was injured, and plaintiff was at the time in the exercise of ordinary care himself, then your verdict should be for the plaintiff, unless you believe and find from the evidence that the plaintiff assumed the risk of being so injured, as submitted to you in the other instructions.”

The giving of this instruction over its objection is one of the errors assigned by appellant. In considering its correctness we will leave out of view for the moment the other points pressed by appellant, that the plaintiff was a fellow-servant of the switching crew in charge of the engine, or that he was injured in consequence of a risk assumed by him when he entered in the employ of defendant, and give our attention to the correctness of the instruction as applicable to the undisputed facts and from the standpoint that the plaintiff was an employee of defendant whose proper work required his presence on its switching grounds and his crossing of the tracks thereon, over which its engines were constantly moving to attach or detach cars and to make up trains. Thus viewed, what was the relation between the plaintiff and defendant and what obligations did it owe to him?

In the application of the last-clear-chance doctrine a different rnle applies when it is invoked by one of the general pnblic for an injury sustained at a place where the railroad had no- right to expect “a clear track,” and where it is sought to be applied for an injury suffered at a place where a clear track was to be expected or where a workman on the track or grounds of the railroad is injured by the necessary movements of its trains. In the former instance the legal theory expressed in plaintiff’s petition and submitted in the above instruction would be correct. In the latter cases it is incorrect. The reason is, that railroads are' required to exercise at all times a degree of care and vigilance commensurate with the occasion. This implies a duty on their part correlative with the danger to be encountered. Hence, in passing portions of their tracks subjected to public use or license, they are charged with a knowledge of what is actually seen or what could be seen by proper care; but where no such conditions exist or where in the course of the necessary movements of their trains over their tracks or switching grounds a workman or employee is injured through an act of negligence on his part not to be expected, the railroad is not liable therefor, unless he was “actually seen” by its operatives in a position of peril in time, by ordinary care, to stop the train and avoid the injury. This distinction is shown by Graves, J., in a recent case, In Banc, upon an analysis of the decisions in this State and elsewhere, and is thus formulated: ‘ ‘ The rule as to an employee is different from the rule applied to a passenger or stranger.” [Citing Cahill v. Railroad, 205 Mo. l. c. 408; Evans v. Railroad, 178 Mo. l. c. 517; Aerkfetz v. Humphreys, 145 U. S. l. c. 419.] In that case the plaintiff was a section hand, who was at work upon the defendant’s track, and was injured by being run into by a passenger train without giving him any warning by ringing the hell or blowing the whistle. The court held that he was not entitled to these signals; that the duty attached to his calling to look out for his own protection; and, hence, that the doctrine applicable “to a clear track” measured the liability of defendant, under which rule it did not become liable for the injury unless the servants in control of the engine ‘ ‘ actually saw the deceased in a position of peril, of which position he was oblivious, in time to have averted the injury by the exercise of ordinary care.” [Degonia v. Railroad, 224 Mo. l. c. 592.] The court further ruled in that case, that the instruction which predicated the right of the widow to recover for the death of her husband, if the defendant’s agents “knew, or by the exercise of reasonable care could have known, that said Degonia was upon the track,” etc., was erroneous; and upon consideration of the entire record reversed the judgment in her favor without remanding. This ruling is conclusive of the present appeal, for there can be no distinction in principle between the relation of the plaintiff, who was a yard clerk employed to traverse all the tracks contained in defendant’s switching grounds, and that of the section hand in the Degonia case. The defendant in this case could not he held liable under the last chance doctrine in any other manner than was ruled in the Degonia case. It had the same right here to assume that the yard clerk would look after his own safety that the section man was required to do in the other case. In the case under review the yard clerk had completed his duties, and, according to his own testimony, walked across the track in front of a slowly moving train which he had passed as it slowed up. The physical facts in this case present stronger reasons for the application of the modified rule of the last clear chance to it than was presented in the Degonia case. There the section hand was at Ms work and unaware of the on-coming train. Here the plaintiff testified that he had got ahead of the train which had already passed him, and crossed its tracks wMle he saw it was slowly moving. In the Degonia case, the court said: “Plaintiff’s case, therefore, must proceed upon the theory that defendant’s servants saw the perilous position of the deceased, and saw such things as would lead prudent persons to believe that' deceased was oblivious to such perilous position, and after so seeing had time to obviate and avoid the accident by ordinary care and caution upon their part. It devolved upon the plaintiff to show these facts.”

In the case at bar the court instructed the jury that the defendant would be liable if its 'agents in charge of “said engine saw or by the exercise of reasonable care and diligence might have seen” the perilous position of plaintiff. The error of tMs instruction was the alternative submitted by the phrase “or by the exercise of reasonable care and diligence might have seen.” That would have been proper if the plaintiff had been other than an employee of the defendant engaged in work requiring him to cross its switcMng tracks and to take reasonable care of his own safety in so doing. That the trial judge wholly misconceived the theory on which plaintiff was entitled to recover, if at all, is shown by the further fact that he refused instruction numbered 3 requested by defendant, which submitted its liability under the last-clear-chance doctrine upon the assumption that the switching crew “saw the plaintiff in a position of peril in-time to have stopped the engine and prevented the accident, but carelessly and negligently failed to do so.” That instruction presented the only legal theory upon which defendant could have been held liable in this action, and should have been given if there was any substantial evidence upon which to base it. [Eppstein v. Railroad, 197 Mo. l. c. 733, par. c; Hufft v. Railroad, 222 Mo. l. c. 301, par. a.] The evidence for defendant tended to show that neither its fireman, its engineer nor its switchman in charge of the engine ever saw the plaintiff in a position of peril until the engine was upon him. The engineer testifies positively' he did not see him at all. The switchman states that he never saw him in a position of peril; and the fireman, who was on the west side of the engine, after having testified in his direct examination that he saw the whole conduct of the plaintiff in throwing the switch and his return and attempt to mount the platform in front of the pilot of the engine, stated on cross-examination (as noted in the brief of respondent) that the truth was the first time he saw plaintiff “was just as he was falling down.” If the statement of these three witnesses is to be credited, then the plaintiff was never' seen by any of them “in a position of peril at any time prior to the engine reaching his person; and under the rule announced in the Degonia case, the defendant would not be liable in this action. The plaintiff, himself, stated in general terms that the engineer and fireman were at their places. The testimony given for him only tended to show that he was in a position of peril at a sufficient distance from the approaching engine for it to have been stopped and averted the injury. Had he been actually seen at that time by the persons in charge of the train, and had they omitted to exercise ordinary care to prevent the injury, then the defendant would have been liable. As to this, the positive testimony of the three men in charge of the engine has been shown. That necessarily does away with any merely disputable presumption that plaintiff was seen in a position of peril, which might have arisen before the advent of that evidence upon his statement that he was within seeing distance. This-is a familiar rule of law. [Brown v. Brown, 237 Mo. l. c. 668; Burge v. Railroad, 244 Mo. l. c. 94 et seq.] Its application in this case shows that no ground existed for a recovery.

The judgment is therefore reversed.

Woodson, P. J., and Graves, J., concur; Lamm, J., concurs in the result.