author: GANTT, P. J.

text:
    DORA McMAHAN et al. v. NANNIE E. HUBBARD, Appellant.
    Division Two,
    March 30, 1909.
    1. WILL: Presumption: To Devise Ail Property. The presumption is that the testator intended to dispose of his whole estate. Where there is a general intention appearing in the will to thereby make a complete disposition of all of testator’s property, such general intention is allowed weight in determining what was intended' by a particular devise that may admit of enlargement or limitation.
    2. -: -: -: Supplying Words. To prevent the happening of the incongruous condition of an estate passing partly by descent and partly by devise, words may be supplied, transformed or changed in the will, so that the instrument may not perish or the manifest intention of the testator be not defeated by a palpable error of the scrivener.
    3. -: Property Devised: Evidence of Attendant Facts. For the purpose of determining the object of the testator’s bounty, or the subject of disposition, or the quantity of interest to be given by his will, the court may inquire into every material fact relating to the person who claims to be interested under the will, or to the property which is claimed as a subject of disposition, or to the circumstances and affairs of the testator and of his family. Such evidence is competent for the purpose of enabling the court to identify the devisee or the thing devised and to determine the quantity of interest intended by the testator to be given. The court may admit parol evidence to show what lands testator had at the time of the making of his will and at the time of his death, and what lands mentioned therein he did not own.

      4. -: No Description of Devised Land. Where the will’ gave to the wife, an unmarried daughter and an adopted son, certain lands described by quarter sections and a fence but omitting the number of the section, it is competent to show by parol evidence that if section 28 is understood, the description exactly fits testator’s home place, that it gave to them 130 acres in one body, and that if the will meant lands located in section 33 in which 23 other acres given to them in the same clause is thereby located it gave to them land that he never owned. It is also competent to show that he had a married son and a married daughter to whom he gave other properly described tracts disconnected from the home place. And it is held, in this case, that the testator intended to give to the wife, unmarried daughter and the adopted son the land in section 28, although the will does not mention the number of the section.
    5. -: -: Latent Ambiguity. As an application of the rule that a latent ambiguity in a written instrument may be removed by extrinsic evidence, parol evidence is competent to show that the description of land devised by the will was an incorrect and imperfect description, and to correct the description according to the testator’s manifest intention.
    6. -: -: -: This Will. Item three of the will read: “In order that my wife, my daughter Leah and my adopted son William, may have ample support, I give and bequeath unto them the following described land, viz.: Seven acres, part of southwest quarter of southeast quarter, also the northwest quarter of the southeast quarter, also the east one-half of the southwest quarter and that part of the west half of the southwest quarter lying east of the present fence running on the east side of said tract; also the twenty-three acres, being a part of the northeast quarter of the northwest quarter of section 33, all in township 25, of range 31.” Held, first, that it is not necessary to supply the words “section 28” to the description of the lands preceding the description of the 23-acre tract, but all that is necessary is to confine the words “section 33” to the 23-acre tract, in immediate connection with which it is used; second, parol evidence is admissible to show that testator owned 130 acres of land in section 28 which constituted his home place, and that the description used accurately describes that place except that the section number is omitted, and that he did not own any land of that description in section 33; third, the description of the home place, in the light of this parol evidence, is sufficient to identify the lands intended to be devised to the three devisees named, and the will passed the lands to them; and, fourth, this conclusion is strengthened by the presumption of law that testator did not intend to die intestate as to this valuable tract, and by a parol showing that it was not devised to ranyone unless it passed by this item of the will, and is also strengthened by the fact that it accords with his expressed purpose to provide, an “ample support” for them, whereas unless he gave them this tract he gave them nothing.
    7. -: Precedent or Subsequent Condition. Whether the condition in the will that the adopted son should “remain with his adopted mother until he is twenty-one years of age and behave towards her as a dutiful son” was a precedent or subsequent condition, it is unnecessary to decide, if the son fulfilled the condition. The mere fact that he married before he was twenty-one, if he continued to live on the place and provide for his mother, was no breach of the condition.
    8. -: Probate: Codicil: One Certificate. Where the original will and the codicil thereto were written upon the same sheet of paper, and the probate court by his certificate thereto attached certified he had examined the said instrument, heard the evidence of the subscribing witnesses and adjudged the same to be the last will and testament of the testator, it will be held -that he probated both the will and codicil.
    9. SUIT TO DETERMINE TITLE UNDER WILL: Pending Suit to Contest Codicil: Abatement. Plaintiffs brought suit to determine title to certain lands under a will. Prior to that time defendants had filed suit against these plaintiffs to contest a codicil to the will, but no service had been had, but defendants filed a plea in abatefnent to the trial of this cause, basing their plea on the pendency of that contest. But this cause was tried without any objection or a request for a continuance. During .the trial the defendants obtained an alias summons in that contest suit, but raised the pendency of that suit only as a defense to the merits of the case. Held, that the court committed no error in refusing to abate this cause until the trial of the alleged contest over the codicil.
    Appeal from Newton Circuit Court. — Ron. F. G. Johnston, Judge.
    AFFIRMED'.

      Horace Ruark, James R. Pratt and George Rubbert for appellant.
    (1) The land being described in the will as in section 33, it was error for the court to admit extrinsic evidence to show that the testator intended to convey land in section 28, other and different land from that described. Even a court of equity cannot reform a will or a gratuitous devise therein upon the ground of mistake. It does not stand upon the ground of mistake in executing or making a contract for a valuable consideration. Goode v. Goode, 22 Mo. 518; Kurtz v. Hibner, 55 111. 514; Lomax v. Lomax,' 218 111. 629; Howard v. Evans, 24 App. D. C. 127; Oliver v. Henderson, 121 Ga. 836; In re Lynch Estate, 142 Cal. 373; Godfrey v. Wingert, 189 111. 500; McGovern v. McGovern, 75 Minn. 314; Engelthaler v. Engelthaler, 196 111. 230; Hull v. Hull, 9 Ohio Cir. Dec. 19; Jennings v. Brizeadine, 44 Mo. 332; Sturgis v. Work, 122 Ind. 134; Starkweather v. American Bible Society, 27 111. 50; Yan Yachten v. Sill, 11 Johns. 201; Ehrman v. Haskins, 67 Miss. 192. But this is a law case, and the surplusage in the petition relating to a supposed error in drafting the will cannot be regarded as changing the nature of the action into an equitable one, nor confer authority to reform the will or construe it. If, however, the section number given applied apparently to the last forty-acre tract alone, then the defect is patent upon the face of the will itself and extrinsic evidence is not admissible to remove such a defect. For there is no general description to be applied. Mudd v. Dillon, 166 Mo. 110. There must be a latent ambiguity before the courts can resort to parol evidence to determine the testator’s intention. Krechter v. Grofe, 166 Mo. 385'; Morris v. Hall, 102 Mo. App. 449; Hawkins v. Garland, 76 Va. 149; Moreland v. Beady, 8 Ore. 303; Hart v. Stover, 164 Pa. 523; Hand v. Hoffman, 8 N. J. L. 76; Brown v. Quintal, 177 N. Y. 75; Stoner v. Freeman, 6 Mass. 435; Marshall v. Haney, 4 Md. 498; Hill v. Felton, 47 Ga. 455; Chambers v. Ringstaff, 69 Ala. 140; Decker v. Decker, 121 111. 341. And the fact that the testator did not own the land devised but owned other land to which the description would apply by the addition or alteration of a number does not change the rule or make parol evidence admissible for such purpose. Lomax v. Lomax, 218 111. 629; In re Lynch, 142 Cal. 373; Sturgis v. Work, 122 Ind. 134; Punk v. Davis, 10'3 Ind. 281; Fitzpatrick v. Fitzpatrick, 36 Iowa 674; Nevins v. Martin, 30 N. J. L. 465; Kurtz v. Hibner, 55 111. 514; Bishop v. Morgan, 82 111. 351; Bingel v. Volz, 142 111. 214; Judy v. Gilbert, 77 Ind. 96; Mc-Goyern v. McGovern, 75 Minn. 314; Sherwood v. Sherwood, 45' Wis. 357; Starkweather v. American Bible Society, 27 111. 50; Senger v. Senger, 81 Va. 687; Jones v. Quattlebaum, 31 S. O. 608; Oades v. Marsh, II Mich. 168; Cleveland v. Havens, 78 Am. Dec. 90; Wilkins v. Allen, 18 How. 385; Warner v. Miltenberger, 21 Md. 264; Waugh v. Waugh, 28 N. T. 94; Best v. Hammond, 55 Pa. 409. Only one description of the land is given in the McMahan will, if this is rejected, nothing is left by which to identify the land. The question thus presented is radically different from that presented by a line of cases where two^contradictory descriptions are given in a will and where it is held that one of the descriptions may be rejected and the land identified by the other. (2) It was error for the court to attempt to adjudicate the title while contest of the codicil to the will, materially altering the apparent interests of the parties, was pending. The effect of such contest was to vacate the action of the probate court, or at least suspend its operation, and have the question tried anew in the circuit court, as if on appeal. Hogan v. ITinchey, 195 Mo. 527; State ex rel. v. Guinotte, 156 Mo. 513; Schaff v. Peters, III Mo. App. 488; Benoist v. Murrin, 48 Mo. 48; Lamb’s Admr. v. Helm’s Admr., 56 Mo. 432. And the statutory contest is the only proceeding in or by which the issues thus made can be tried. Stevens v. Oliver, 200' Mo. 514; Stowe v. Stowe, 140 Mo. 594; Jourden v. Meier, 31 Mo. 40; Stevens v. Larwell, 110 Mo. App. 159. The pendency of the suit to contest the codicil was properly set up in the answer. Matters in bar and in abatement should be pleaded in the answer, along with matters going to the defense of the merits of the action. And it was error for the court to exclude the evidence thereof or ignore issues thereon. Cohn v. Lehman, 93 Mo. 574; Baxter v. Railroad, 198 Mo. 1; Little Rock Trust Co. v. Railroad, 105 Mo. 682; Meyer v. Insurance Co., 184 Mo. 481; 1 Ency. PL and Pr., 1. The probate of the codicil was had August 24th. On August 26th plaintiffs filed their present suit and August 30th defendants filed suit to contest the codicil. Summons was served upon defendants August 30th.

      R. M. Sheppard and John T. Sturgis for respondents.
    (1) The presumption is that the testator meant to dispose of his whole estate and not to die intestate as to any part of it. And to prevent the incongruous condition of the estate passing partly by will and partly by descent, words may be supplied, transposed or rejected, and where this can be done descriptions will be so corrected and interpreted as to include the whole property. Robards v. Brown, 167 Mo. 447; "Willard v. Darrah, 168 Mo. 670’; Whitcomb v. Rodman, 156 111. 116; Hurst v. Von De Veld, 158 Mo. 248; Watson v. Watson, 110 Mo. 171; Simons v. Cabanne, 177 Mo. 336; Meiners v. Meiners, 179 Mo. 614; Grace v. Perry, 197 Mo. 560; ICorf v. Gerichs, 145 Ind. 134; Carney v. Kain, 401 W. Va. 758. (2) Extrinsic and parol evidence is always admissible to show what land the testator owned at the time of making the will and at his death, and it is presumed that he intended to convey his own land and not that of another. Board of Trustees v. May, 201 Mo. 368; Patch v. White, 117 U. S. 210; Riggs v. Myers, 20 Mo. 243; Creasy v. A Iverson, 43 Mo. 22; Wolf v. Dyer, 95 Mo. 550 ; Presnell v. Headly, 141 Mo. 193; Stewart v. Stewart (Iowa), 65 N. W. 976; Eckford v. Eckford (Iowa), 58 N. W. 1093; Pate v. Bushong (Ind.), 63 L. R. A. 602 (overruling Sturgis v. Work, 122 Ind. 134, and Funk v. Davis, 103 Ind. 281, cited by appellants); 2 Underbill on Wills, 1008. (3) Aided by tbe foregoing rules, the court will, with the aid of extrinsic evidence, put itself in the situation of the testator, apply the description given in the will to the locus in quo, ascertain the intention of the testator, and carry out that intention even if it be necessary to reject some words and supply others, reject a particular description and use a general one, or vice versa, and, in a word, give to the person designated the property intended. Thompson v. Thompson, 115' Mo. 68; Briant v. Garrison, 150 Mo. 670; Hoffman v. Reil, 27 Mo. 554; Wolf v. Dyer, 95 Mo. 550; Riggs v. Myers, 20 Mo. 243; Board of Trustees v. May, 201 Mo.' 360; Willard v. Darrah, 168 Mo. 660; Creasy v. Alverson, 43 Mo. 13; Gordon v. Burris, 141 Mo. 611; Seebrock v. Fedawa (Neb.), 50 N. W. 270; Whitcomb v. Rodman, 156 111. 116, 28 L. R. A. 149 (overruling Bingle v. Volz, 142 111. 214, cited by appellants) ; Pate v. Bushong (Ind.), 63 L. R. A. 593 (overruling Sturgis v. Work, 122 Ind. 134, and Funk v. Davis, 103 Ind. 281, cited by appellants); Patch v. White, 117 U. S. 210; Wheat v. Pope (In re Pope’s Estate), (Minn.), 97 N. W. 1046; Merrick v. Merrick, 37 Ohio St. 132; Covert v. Sebern (Iowa), 35 N. W. 636; Stewart v. Stewart (Iowa), 65 N. W. 976; Flynn v. Holman (Iowa), 94 N. W. 447; Eckford v. Eckford, 58 N. W. 1093, 26 L. R. A. 370; Tobin v. Tobin (Ind.), 69 N. E. 440; Priest v. Lackey, 140 Ind. 399; Huffman v. Young, 170 111. 290';. Page on Wills, p. 976, sec. 819. (4) The description in a will of land no.t owned by the testator creates a false description which will be rejected. Falsa demonstrate non nocet. It creates a latent ambiguity which may be removed by extrinsic evidence. “It is settled doctrine that as a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence,” and it arises when “the thing does not belong to'the testator.” Patch v. White, 117 U. S. 210; Pate v. Bushong (Ind.), 63 L. E. A. 601; Page on Wills, p. 976, sec. 819; Whitcomb v. Eodman, 156 111. 116; Cleveland v. Spillman, 25 Ind. 95; Govin v. Metz, 79 Hun' 461; Peters v. Porter, 60 How. Pr. 422; Nook v. Wilson, 142 Ind. 24. (5) If the testator does not own the land particularly described in the will, then the court can reject such part of the description as is shown to be false when applied to the locus in quo; and if enough remains to identify the land owned by the testator, by the aid of extrinsic evidence, then the devise will be upheld. Any expression in the will indicating that the land meant to be devised was owned by testator; any reference to external obj ects or monuments, and even the size or shape of the whole, or some particular part of the land devised, will be seized upon as identifying the land. Briggs v. Myers, 20 Mo. 239; Creasy v. Alverson, 43 Mo. 13; Eogers v. Eogers, 78 Ga. 688; Pocock v. Eedinger, 108 Ind. 573; Bowen v. Allen, 113 111. 53; Hunt v. Devling, 8 Watts 403; Decker v. Decker, 121 111. 341; Wheaton v. Pope, 91 Minn. 299; Priest v. Lackey, 140 Ind. 399; Zirkle v. Leonard, 61 Kan. 636; Stewart v. Stewart, 96 Iowa 620; Wright v. Collins, 16 0nt. Eep. 182; Hickey v. Hickey, 20 Ont. Eep. 371; Page on Wills, sec. 487, p. 571. This principle is clearly recognized in such cases as Lomax v. Lomax, 218 111. 629, 6 L. E. A. (N. S.) 942, and Sturgis v. Work, T22 Ind. 134, relied on by appellants. (6) It is not even necessary for the court to supply “section 28” as applied to the descriptions preceding the twenty-three-acre tract. It can so construe and read the will as to confine the words ‘ ‘ section 33” to the twenty-three-acre tract in immediate connection with which it is used. Then the remainder of the land is correctly described except that the section in which, it is located is not designated. In such cases extrinsic evidence is admissible to supply the deficiency by showing- in what section the testator owned land of that description. Page on Wills, p. 976, sec. 819'; Chambers v. Watson, 60' Iowa 339; Flynn v. Holman, 119' Iowa 731; Chambers v. Rigstaff, 69 Ala. 140; Black v. Richards, 95 Ind. 184; Pate v. Bushong (Ind.), 63 L. R. A. 593; Moreland v. Brady, 8 Ore. 303; Whitcomb v. Rodman (111.), 28 L. R. A. 149 (with note saying this case overrules Bingle v. Volz, 142 111. 214, cited by appellant); Case v. Young, 3 Minn. 209. (7) Whenever such wills are brought in controversy courts of law hear the evidence and correct, or rather treat as corrected, all such errors in. description without any resort to a court of equity. Thompson v. Thompson, 115 Mo. 56; Briant v. Garrison, 150 Mo. 670; Patch v. White, 117 U. S. 210.
   GANTT, P. J.

This action was commenced in the circuit court of Newton county to determine the title to certain lands in said county. The plaintiffs claimed title to the lands in controversy under, and by virtue of items three and eleven of the last will and testament of John McMahan, deceased, who is the common source of title, and the first section of the codicil to said will.

The said provisions of the will are in these words:

“3. In order that my wife, my daughter Leah and my adopted son William McMahan, may have ample support, I give and bequeath unto them, the following described land, viz: Seven acres, part of the southwest quarter of the southeast quarter, also the northwest quarter of southeast quarter, also the east one-half of the southwest quarter and that part of the west one-half of the southwest quarter lying east of the present fence running on the east side of said tract; also the twenty-three acres,»being part of the northeast quarter of the northwest quarter of section 33, all the above land in township 25 of range 31.
‘ ‘II. All the property herein bequeathed shall descend to the heirs of the bodies of those to whom it is bequeathed, provided said heirs are born in lawful wedlock and should any of my legatees die without heirs of their body as above stated, then all the property bequeathed to them shall descend to my legal heirs.”

Codicil: “In explanation of section 3, where the bequeath is to my wife and daughter Leah and adopted son William McMahan, at the death of my wife, the real estate herein mentioned is to descend to my daughter Leah and William McMahan (adopted son).”

The plaintiffs, who are the wife and child of William McMahan, deceased, alleged in their petition that the land intended to be described and conveyed by the third clause of the said will to the testator’s wife, daughter Leah, and adopted son, William Mc-Mahan, is the land in controversy herein, and that by mistake the scrivener in writing the will failed to designate that all of- said land described in said third item of the will is in section 28, except the last described tract of twenty-three acres, which is properly described as being in section 33. The defendants in their answer allege that the said John McMahan made no disposition in his last will of the part of the land in controversy, which is located in section 28; that as to this land, he died intestate. The defendants also said in their answer that all the bequests and gifts made to the said William McMahan by the said will were made upon the following terms and conditions set forth in the seventh item of said will in the following language, viz: “7. All the bequests made to him are conditioned that he remain with his adopted mother until he is twenty-one years of age and behaves himself toward her as a dutiful son.” And it is asserted that the said William McMahan failed and refused to comply with the said terms or provisions of said will and by his conduct and action forfeited any and all bequests under the terms and provisions of said will.

The cause was tried in the circuit court of Newton county, and at the trial it was agreed that John McMahan died on the — day of --, 1888, and that he left surviving him his. widow, Elizabeth McMahan, who died on the 29th of July, 1904; that he also left surviving him as his only heirs at law J. Raphael Mc-Mahan, who is a son by a former marriage, his daughter Leah McMahan, now Leah G-oin, and his daughter Nannie E. Hubbard; that William McMahan mentioned in the will as his adopted son died on or about the 25th of December, 1901, leaving as his heirs his widow Dora McMahan and his children, Logan, Floyd, Noble and Duard McMahan, all plaintiffs herein. That the defendant Commodore Thomas is the only child of Leah Groin. The evidence on the part of the plaintiff tended to show that the testator John McMahan at the time he executed his will and at the time of his death and for many years prior thereto, owned the land in suit in section 28, township 25, range 31, and at the time of the execution of his will, nor any other time, did he own any land in section 33 except the twenty-three-acre tract described in said will as being a part of the northeast quarter of the northwest quarter of section 33 and the forty-acre tract west of said twenty-three acres, which he devised to his son J. R. McMahan in the ninth item of the will. The evidence also tended to show that if section 33 should be held to be a part of the description of all the land described •in item three of the will then all of it except the twenty-three-acre tract was at the time the said will was •executed and at the time of the death of the testator owned by T. B. Durham and James Hubbard. • A plat of section 33 and of a part of section 28 will accompany this opinion.

The plaintiffs are claiming title to that part of the land shown by said plat which is inclosed in the black dotted lines. The evidence clearly demonstrated that the land in which the plaintiffs claim an interest in this suit belonged to John McMahan at the time his will was executed and at the time of his death, and that that part of said land contained in section 28 would have been the identical land described in item three of the will, if the scrivener who drew the will had inserted the words “section 28” just after- the words “and that part of the west half of the southwest quarter. ” The testimony disclosed that the lands owned by John McMahan as his home farm was a compact body of land mostly in section 28 and the balance in section 33 immediately south. The house in which he and his family lived was and is on the part of the farm in section 28 and was occupied by his widow until her death in 1904. His wife, daughter Leah and adopted son were the members of his family living at home when the will was made. In his will he expressed the intention of providing that his family should have “ample support” and to this end devised 130 acres of land by description. To his daughter, Nannie Hubbard, he gave land which was not a part of the home farm; to his son J. R. Mc-Mahan, who was married and living on the land given him by the will, he gave three forty-acre tracts extending north and south along and constituting the western part of the farm. Two of these forty-acre tracts are in section 28, and one in section 33, and are correctly described in the will. After deducting these special devises to his daughter Nannie Hubbard and his son J. R., there was left the 130 acres with the residence on it.

The evidence also showed there was at that time and yet is a fence dividing the land occupied by and given to J. R. McMahan, from the balance of the home place. This fence was somewhat irregular and did not follow the subdivision lines, but ran east of the same, cutting off a few acres of land from the J. R. McMahan tracts, to-wit: the northwest of the northwest of section 33 and west half of the southwest of section 28. This fence was in the mind of the' testator when- he made his will, as he says he gives to his son J. R. McMahan the west half of the southwest quarter of section 28 ‘ ‘ west of the present fence ’ and the northwest quarter of the northwest quarter of section 33 “lying west of the present cross-fence.”' In item three he devises to the plaintiffs “that part of the west half of the southwest quarter lying east of the present fence running on the east side of said tract,” but omits the.number of the section. The testator also owned at that time, in section 28, a seven-acre tract, part of 'the southwest of the southeast quarter, and this he also devised to his wife, daughter and adopted son, but omitted the section also in that description.

I. Among the cardinal rules often invoked by this court in the construction of wills is the presumption that the testator intended to dispose of his whole estate. This presumption seems to amount to this, that where there is. a general intention appearing in the will to thereby make a complete disposition of all of the testator’s property, such general intent is allowed weight in determining what was intended by a particular devise that may admit of enlargement or limitation. [Watson v. Watson, 110 Mo. l. c. 171.] Whatever may be the rule in other States, it is well established in this State that in pursuing the general presumption and to prevent the happening of the incongruous condition of the estate passing partly by will, and partly by descent, words may be supplied, transformed or changed in the will so “that the instrument may not perish and the manifest intent of the parties be not defeated by the palpable error of-the scrivener.” [Thomson v. Thomson, 115 Mo. l. c. 67; Briant v. Garrison, 150 Mo. l. c. 668; Rines v. Mansfield, 96 Mo. 398; Presnell v. Headley, 141 Mo. 194; Rohards v. Brown, 167 Mo. 447.]

It is also well settled in this State that for the purpose of determining the object of the testator’s bounty or the subject of disposition, or the quantity of interest intended to be given by his will, the court may inquire into every material fact relating to the person who claims to be interested under the will and the property which is claimed as a subject of disposition, and to the circumstances of the testator and of his family and affairs for the purpose of enabling it to identify the person or thing intended by the testator or to determine the quantity of interest he has given by his will. [Riggs v. Myers, 20 Mo. 239.] In the lashmentioned case a will described land devised as the southeast and southwest quarter of section 4 in township 60, range 38 in Holt county, Missouri, the devisee to have the privilege of using water of the big spring with free access to and from it as he might wish, and it was held by this court that parol evidence that the corresponding quarter sections of township 59 in the same range and county were intended to be devised, was admissible, it appearing that the big spring was upon the southeast quarter of section 4, township 59, and that the testator never owned or claimed any land in section 4 of township 60. [Willard v. Darrah, 168 Mo. 660.] Under this adjudication, we think the court properly admitted parol evidence to show what lands the testator in this case had at the time of making his will and at the time of his death.

And when this evidence is considered, we think the will taken as a whole shows a clearly expressed purpose on the part of John McMahan to dispose of all his property, real and personal, and we think it' is also a fair presumption that, as he owned no other real estate outside of his home place except that which he devised to his son J. R. and his daughter Nannie Hubbard, there can be little doubt that he intended to give to his wife and his daughter Leah and his adopted son, this home place. He was devising his own estate and he did not intend to give away anything which did not belong to him, and yet if the contention of the defendants is true, he would have been devising the land which belonged to his neighbors Durham and Hubbard, and the Missouri Land and Live Stock Company, which he did not own at the time. Again to sustain the defendants we must reach the conclusion that the testator meant to die intestate as to a very large part of his estate, a conclusion, which we have seen, the law would never presume especially where the decedent makes a will as John McMahan did in this case.

In the third item of the will, the testator says that he makes provision for his wife and daughter Leah and his adopted son to have “ample support” out of the lands, which he devised to them. Certainly he could not have, for one moment, supposed that he provided an “ample support” for them out of the twenty-three acres of land in section 33, and yet he must have known that this was all the land he owned in section 33 at that time. The bare statement of the proposition shows that it is a most unreasonable and unnatural construction of the language used by the testator. He had described 130 acres of land, only twenty-three acres of which was in section 33. . It is readily seen that the real point in controversy in this case is whether it was competent for the circuit court to admit parol evidence to show that the description of the land devised to the wife and daughter Leah and their adopted son, if section 33 was a part of said description, was described land owned by the testator, and thereby to show that the description was false if it should be held that all the said lands were in section 33. While there has been great conflict in the authorities as to how far a court can go in receiving testimony to show that the words used in a will are an incorrect description of land devised, we think the rule announced by Judge Scott in Riggs v. Myers, 20 Mo. 243, has become the settled law of this State, and such evidence is admissible to show a latent ambiguity, and when this is done the rule is well settled that a latent ambiguity may be removed by extrinsic evidence. In Willard v. Darrah, 168 Mo. l. c. 670, this court approved the rule laid down in 2 Underhill on the Law of Wills, section 910, in these words: “In every case the court is entitled to be placed in possession of all the information which is available of the circumstances of the estate and family of the testator when he made his will, to the end that the court may he in his situation as nearly as' may be, and may interpret and understand the will as he would if he were living. When the evidence of extrinsic circumstances is all in, it may appear that a description in the 'will which was intended by the testator to apply to one object or thing is applicable, with more or less certainty, to several objects or things. This is a case of latent, ambiguity, and parol evidence is then received to ascertain which person or thing was intended by the testator. Where the ambiguity is latent, it is created by evidence of extrinsic facts, and the same evidence is admissible to remove it. ’ ’ In Page on Wills, section 819, it is said: “Where testator describes the property devised by township, range, section and quarter section, but does not locate it in the correct section or range or the, like, the weight of authority is that extrinsic evidence is admissible to show exactly what real estate the testator owned. Under this view, if he owns any real estate which corresponds in part to the description in the will, the court will reject the incorrect part, of the description and will pass the realty conveyed hy the correct description.” In the very exhaustive discussion of this question hy the Supreme Court of Indiana in Pate v. Bushong, 63 L. R. A. 593, that court cited with approval the decision of this court in Riggs v. Myers, 20 Mo. 239, and numerous other cases which supported the text of Page above cited. The court added: ‘ ‘ There are some cases which seem to hold that when the evidence of the circumstances, situation, surroundings, and property owned by the testator at the time he made his will shows that the testator did not own the land as described in his will, hut owned other land to which a part of the description might properly apply, no latent ambiguity was disclosed, unless the words ‘my land,’ or other words stating in effect that the testator owned the land devised, are contained in the will. The rule established by the weight of the authorities, and the better reason, however, is that such evidence does disclose a la.tent ambiguity, whether words stating, in effect, that the testator owned the lands devised are used or not; and if, by rejecting the false description or the false part thereof, sufficient remains, when considered from the position of the testator, to identify the land intended with reasonable certainty, the same will pass under the will to the devisee. It is true that, after rejecting the false description or the false part thereof, the words ‘my real estate,’ or words of like import, if used by the testator in making the devise, would be of great force in identifying the land intended, and might, alone or in connection with the true part of the description, if any, pass the land to the devisee, in cases where, if the words were not used, tlje devise would fail for want of a description sufficient to identify the land. The enforcement of this rule does not reform or'add any words to a will, for this cannot be done, but enables the court to construe the will after rejecting the false part of the description, and thus carry into effect the intention of the testator as expressed therein.” A leading case on this subject is Patch v. White, 117 U. S. 210. The testator gave to his children a lot described “as lot numbered six in square 403, together with the improvements thereon erected.” The parol evidence disclosed that the testator did not have or own lot six in square 403, and that the same had no improvements thereon, but he did own lot three in ¿square 406, which had a house thereon, and it was held that this raised a latent ambiguity and the evidence taken in connection with the context of the 'will was sufficient to show there was an error in the description and the lot really devised was lot three in square 406. Numerous other cases might be cited, but would subserve no good purpose.

Now applying the foregoing principles to the case in hand, it is not necessary for this court to supply the words “section 28” as applied to the description of the lands preceding the twenty-three-acre tract. All that is necessary is to confine the words “section 33” to the twenty-three-acre tract, in immediate connection with which it is used, and this we do because the evidence abundantly established that the testator did own seven acres, a part of the southwest of the southeast, and the northwest of the southeast quarter and the east half to which that description would specifically apply in section 28. And so by rejecting the words “section 33” as to these last described lands, and applying the evidence which shows that these lands constituted the home place of the testator, we find that they are correctly described, except that the section is omitted from their description, and there is sufficient description to identify these lands and they passed under the will of John McMahan to his wife, daughter Leah and adopted son. This conclusion fully accords with the presumption that the testator intended to devise all of his estate and not leave this valuable tract of laud wholly undisposed of, and because, moreover, it accords with his desire to provide an “ample support” for these devisees, whereas a different construction would render this expressed intention wholly inoperative.

II. But is is insisted by the defendants that the seventh clause in the will created a condition precedent, and that no interest passed to or vested in the said William McMahan by clause three of the will, because it did not appear that he had complied with the conditions set out in clause seven, that he should “remain 'with his adopted mother until he is twenty-one years of age and behave toward her as a dutiful son.” Now, as to this contention the court found as a matter of fact that William McMahan was over twenty-one years of age at the time of his marriage, and the evidence abundantly established that finding. The only way in which it was claimed that he violated this condition is that he married before he was of that age, but all the testimony shows that he was an exemplary young man,, hard-worker, sober and industrious, with no bad habits. While there was some evidence tending to show that his foster mother objected to his marrying when he did, the evidence establishes that they were soon reconciled, and that he continued to live on the farm, although in another house, and cultivated the land and took care of the crops and her stock; that he was at her house every day, and furnished her her fuel and kept up the farm. The evidence tends clearly to show that the foster mother at least was entirely satisfied with his conduct towards her. We do not, under these cireumstauces, think it is necessary to go at any length into, the learning on the subject as to whether this condition was a precedent or a subsequent one, for in either event, William McMahan fulfilled it.

III. The answer set np that there was then pending’ a suit to contest the codicil to this will of John McMahan’s. The evidence tended to show that while such a suit had been filed no service had been had on the defendants in that case who are the plaintiffs in this case. This plea was in the nature of a plea in abatement to the trial of this cause. But the record of this case shows that when it was reached it was was' tried without any objection or a request for continuance. And during the trial of this case, the plaintiffs in that ease obtained an order for an alias summons on these plaintiffs and only raised the pendency of that suit as a defense to the merits of this case. The point now made is that it was error for the circuit court in this case to attempt to adjudicate the title while the contest of the codicil to the will was pending. We think the court committed no error in refusing to abate this suit until the trial of the alleged contest over the codicil. No service had been had on the defendants in that case who are the plaintiffs in this case, and they were not in court. Moreover, the defendants went to trial without objection in this case. It was perfectly competent for the circuit court in this case to find as it did find that the original will and codicil had both been probated by the probate court of Newton county in 1888. The original will and the codicil thereto were written upon the same sheet of paper and has attached thereto the certificate of the probate judge of Newton county, certifying that the judge of Newton County Probate Court had examined the said instrument and had heard the evidence of the subscribing witnesses and adjudged fhe-same to be the last will and testament of John'McMahan. The court very properly, we think, puled that the probate court probated both the will and the codicil, as they were both written upon one piece of paper and were presented to the probate court at one and the same time for probate. If the court rejected the codicil, it was its duty to grant a certificate of rejection, but, taken together,, we tbink tbe probate court granted a certificate of probate of tbe whole will including tbe codicil.

We have carefully gone through various other objections as to the admissibility of testimony and the rejection of the same, but in our opinion there was no error in this respect, but if any at all, of a technical nature, which was not such as would call for a reversal of the judgment. The judgment of the circuit court is therefore affirmed.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    ANNIE V. PARTELLO v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    March 30, 1909.
    1. OPINIONS: Non-Expert. A non-expert witness may give his opinion as to the apparent health of the injured plaintiff whom he has had opportunity to observe — her apparent health both before and at the time of her injury.
    2. DAMAGES: Instruction: Not Exceeding Alleged Amount. An instruction in a personal injury case telling the.jury that “if they should find for plaintiff they will assess her damages at such sum .... not exceeding the total sum of fifty thousand dollars” (the amount which it is alleged in the petition she has sustained), is not erroneous. It is not the law that • such an instruction is proper only in cases growing out of contract where the damages are susceptible of easy ascertainment.
    3. -: -: Elements. An instruction which embraces as elements of damage no matter of importance not covered by the petition, is not erroneous as submitting to the jury issues not presented by the petition. And in this case the criticism of the instruction to the effect that it did present such issues is held to be too technical.

      i. EXCESSIVE VERDICT: $30,000: Nervous Troubles. Plaintiff was a passenger on a railroad train, and when it collided with another train in the yards she was thrown forward from her seat in the chair car, her face striking the back of the chair immediately in front of her, and she fell to the floor on her knees. Her nose bled freely and she seemed to suffer great pain, and was in a semi-conscious condition. At the hospital she was in an unconscious condition, and the nurse testified that there was a displacement of the womb, and the physicians who attended her at the hospital placed her womb in place, forcing it back with a pack, but no physician testified that there was a permanent displacement. She remained in the hospital for five weeks, and during the early part of that time the abdominal regions were swollen and very sore, she was unable to sleep without opiates, and suffered from nervousness and nausea. Her womb was much enlarged, but not extraordinarily sensitive, but her side was somewhat swollen and very sensitive to pressure. She left the hospital and went by sleeper to her home in Ft. Reno, and on arriving there was in a fainting condition, and for hours was partly unconscious. She remained in bed two or three months, there was great tenderness and a swelling in the abdomen which lasted for weeks, and the broad ligaments supporting the womb, and the surrounding tissues, were inflamed and enlarged, and she- became emaciated and sallow. All the' physicians testified that her condition might result from a severe muscular strain or a blow, or concussion, and some of them testify- that she is without rallying power and that the- injury had almost destroyed her nervous system and that the injuries are permanent; others testify that they are not permanent. None of her bones were broken, and no joint dislocated or injured, and at the time of the trial there was no apparent disfigurement save a slight mark on the nose. At the time of the accident she was 46 years old, and 'had previously been in excellent health, lived an active life, was agile, and in every way sound. The jury returned a verdict for $30,000, and while a motion for a new trial was pending she voluntarily filed a remittitur of $10,000. Held, that plaintiff was entitled to just and adequate compensation for her injuries, pain and suffering, and no more, there being no element of malice in the case; and the verdict is so large that the ends of justice would be conserved by a new trial.
    Appeal from Jackson Circuit Court.- — Ron. Edw. P. Gates, Judge.
    Reversed and remanded.

      Martin L. Glardy and Elijah Robinson for appellant.
    (1) The court committed error in permitting the plaintiff to read depositions of non-expert witnesses, in which they expressed opinions as to her physical condition. Sharp v. Railroad, 114 Mo. 94; Railroad v. Demsey, 89 S. W. 786. (2) The court committed error in giving plaintiff’s instruction 5, on the measure of damages. 1. Said instruction amounted practically to a statement to the jury that, in the opinion of the court, the evidence warranted them in returning a verdict for any sum up to $50,000. Bryan v. Acee, 27 G-a. 87; Glasscock v. Shell, 57 Tex. 224; Willis & Bro. v. McNeill, 57 Tex. 478; Fordyce v. Nix, 23 S. W. 967; Gilbertson v. Railroad, 43 N. T. Supp. 782; Railroad v. Austin, Admx., 69 111. 428; Railroad v. May, 33 111. App. 366; Rost v. Brooklyn Heights, 41 N. Y. Supp. 1069. 2. Said instruction was also erroneous, in that it submitted to the -jury issues not made by the pleadings — was broader than the petition. Bank v. Westlake, 21 Mo. App. 565; State ex rel. v. Sitlington, 51 Mo. App. 256; Harper v. Railroad, 70 Mo. App. 604; Colliott v. Mfg\ Co., 71 Mo. App. 163; Edwards v. Railroad, 79 Mo. App. 257; Kattleman v. .Fire Assn., 79 Mo. App. 447; Kirby v. Railroad, 85 Mo. App. 345; Pryor v. Railroad, 85 Mo. App. 367; Fegan v. Grain Sep. Co., 92 Mo. App. 236; Budd v. Hoffheimer, 52 Mo. 297; Pinney v. Berry, 61 Mo. 366; Bank v. Murdock, 62 Mo. 70; Abbott v. Railroad, 83 Mo. 271; Mellor v. Railroad, 105 Mo. 455; Coontz v. Railroad, 115 Mo. 669 ; Slaughter v. Railroad, 116 Mo. 269; Chitty v. Railroad, 148 Mo. 64; De Donato v. Morrison, 160 Mo. 581; Wolfe v. Supreme Lodge, 160 Mo. 675; Heinzle v. Railroad, 182 Mo. 528; Logan v.. Railroad, 183 Mo. 582. (3) The verdict was so grossly excessive as to show conclusively that the nine jurors who signed it were influenced by prejudice against defendant or sympathy for plaintiff, and that their verdict was not the result of a fair and impartial consideration of the evidence in the case, and for that reason the judgment ought to be reversed. Baker v. Stonebraker, 36 Mo. 338; Spohn v. Railroad, 87 Mo. 84; Ice Co. v. Tamm, 90 Mo. App. 202; Adams v. Railroad, 100 Mo. 555; Clilanda v. Railroad, 112 S. W. 249; Cook v. Railroad, 94 Mo. App. 425; Whalen v. Railroad, 60 Mo. 323; Nichols v. Glass Co., 126 Mo. 55; Furnish v. Railroad, 102 Mo. 438; Chitty v. Railroad, 166 Mo. 435.

      Reed, Yates, Mastin & Harvey for respondent.
    (1) No error was committed in any ruling by the court admitting non-expert testimony as to respondent’s physical condition- before and after the injury. 3 Wigmore on Evidence, p. 2616, and many authorities cited; Fulton v. Railroad, 125 Mo. App. 247; State v. Buchler (stating rule), 103 Mo. 207; Lawson, Expert and Opinion Ev., p. 470; State v. Ramsey, 82 Mo. 137; State v. Parker, 96 Mo. 393; State v. David, 131 Mo. 394; Binsbacher v. Railroad, 108 Mo. App. 3; Wilkenson v. Mosely, 30 Ala. 572; Railroad v. Mc-Lendon, 63 Ala. 275. “A non-expert is competent to give his opinion as to the apparent health of a person whom he has had the opportunity to observe, this being a matter open to the senses, but incapable of exact description.” 12 Am. and Eng. Ency. Law, 491; Hardy v. Merrill, 56 N. H. 227; 1 Wharton on Evidence, sec. 513. (2) 1. Plaintiff’s instruction 5, on measure of damages, in that it confines the jury to the amount prayed for in the petition, follows the precedent of every instruction given in Missouri since courts were established. Hundreds of cases approving a like instruction'might be cited. We content ourselves with Dougherty v. Railroad, 97 Mo. 657; McNamara v. Railroad, 106 Mo. App. 352; Devoy v. Railroad, 192 Mo. 207; Stobier v. Railroad, 203 Mo. 712; Girard v.. Coal Co., 207 Mo. 258; Logan v. Railroad, 183 Mo. 591. 2. The instruction in question is not broader than the petition. If counsel thought it too broad they should have asked its modification. Swearingen v. Coal Co., Ill S. W. 545. (3) The verdict is not excessive, if plaintiff is in the physical condition depicted by the evidence. Waldhier v. Railroad, 87 Mo. 307; Markey v. Railroad, 185 Mo. 356; Reynolds v. Railroad, 189 Mo. 409. The recent trend of judicial opinion favors sustaining larger verdicts for permanent and practically total disabilities. Strand v. Railroad, 101 Minn. 85 ($20,000); Railroad v. Nesbit (Tex. Civ. App.), 97 S. W. 825 ($20,950); Huggard v. Glucose Sug. Ref. Co., 132 la. 724 ($32,916); Railroad v. Connelly (Neb,), 109 N. W. 368 ($27,500); Railroad v. Yanlandingham (Tex. Civ. App,), 85 S. W. 847 ($25,000); Railroad v. Toliyer (Tex. Civ. App.), 84 S. W. 375 ($19,500); Smith v. Whittier, 95 Cal. 279 ($30,000); Railroad v. Brazzil, 78 Tex. 314 ($20,000); Railroad v. Ewing, 7 Tex. Civ. App. 8 ($20,000); Alberti v. Railroad (N. Y.), 43 Hun 421 ($25,000); Harrold v. Railroad (N. Y.), 24 Hun 184 ($30,000); Hall v. Railroad, 46 Minn 439 ($25,000); Railroad v. Friedman, 41 111. App. 270 ($30,000); Railroad v. Holland, 18 111. App. 418 ($25,000).
   BURGESS, J.

This is an action for damages for personal injuries received by plaintiff in a collision occuring on defendant’s railroad, and alleged to have been caused by the negligence of defendant, its agent and servants. The jury trying the cause returned a verdict for $30,000 in favor of plaintiff, and judgment was rendered accordingly. Afterwards, upon the hearing of defendant’s motion for a new trial and in arrest of judgment, plaintiff, by attorney, remitted $10’,000 of said judgment. The court overruled defendant’s said motions, whereupon an appeal was taken to this court.

Plaintiff is the wife of an army officer, stationed at Ft. Reno, Oklahoma. On the 9th day of October, 1904, plaintiff, her husband, daughter and son, were passengers on one of defendant’s trains going from the union depot at Kansas City to Leavenworth, Kansas, and when the train was passing through the defendant’s yards, in Kansas City, at a point about three hundred yards west of the union depot, the engine collided with the tender of another engine. A crossing switch was left open, and the engine, instead of proceeding westwardly on the main track, ran in on this cross-over track and collided with the tender of the other engine which was backing eastwardly on another track. The pilot- or cowcatcher of the passenger engine, by reason of the collision, was broken and the forward part of the engine damaged, and the trucks of the tender of the other engine were knocked off tlie track and a large hole made in the water tank. When the collision occurred, plaintiff was thrown forward from her seat in the chair car, her face striking the back of the chair immediately in front of her, causing her nose to bleed, and she fell to the floor on her knees. Dr. A. J. McDonald, a dentist residing in Kansas City, was sitting on the opposite side of the aisle from plaintiff, and he, with Major Partello, plaintiff’s husband, assisted her back to her seat. She was bleeding freely at the nose and seemed to be suffering great pain, and Dr. McDonald got a damp towel and bathed her face and otherwise tried to alleviate her suffering. This witness testified that the concussion between the two engines was violent, and threw him forward, but that he put his hands on the seat in front of him, and remained uninjured. He further testified that nothing intelligible was said by plaintiff in his presence, after she was injured, but that she was in a semi-conscious condition, and moaning practically all the time. Plaintiff was removed through the car 'window on a stretcher and taken to St. Joseph’s hospital, she being at the time in an unconscious condition. Describing her condition, afted she regained consciousness, she said, “I felt as though I was hurt in some way in my lower parts, and could not move them. ’ ’ Dr. Fulton and Dr. Hamel, two surgeons connected with the defendant railway company, came to see plaintiff on the day of the injury and administered strychnine, and put her womb back in place, Dr. Fulton forcing it back in place with a pack.

Miss Carrico, the nurse who waited on plaintiff at the hospital, testified that when plaintiff came to the hospital she was in great pain and continually asked for something to relieve her. She saw Dr. Fulton examine plaintiff, and force back her womb by means of a pack saturated with ichthyol oil. The doctors also applied antiphlogistine to the lower part of her abdomen, on the right side, which was greatly swollen, and this treatment was continued for weeks. During plaintiff’s stay at the hospital she wás unable to sleep without the aid of an opiate, and she suffered from nervousness and nausea. She failed in flesh, and during the first three weeks of her stay at the hospital she was out of bed once, when she was put in an invalid’s chair and taken to the porch for a few minutes. After plaintiff had been at the hospital some two or three weeks, Dr. Lester Hall, who had been asked by plaintiff’s husband to attend his wife, performed a minor operation on plaintiff. He found that in giving birth to her first child the perineum was lacerated, and he cut away the old scar tissue and sewed up the lacerated perineum.

At the end of five weeks, plaintiff left the hospital and was taken in a carriage to the Coates House, in Kansas City, where she remained three days, and then took a night train for home, lying down in a sleeper as soon as she entered it. Reaching Ft. Reno, .she was immediately put to bed, which she was unable to leave, even with the help of assistants, for two or three months afterwards, during which time a nurse constantly attended her. Dr. A. M. Chase, an army surgeon stationed at Ft. Reno, was called in immediately upon Mrs. Partello’s arrival. He found her in a fainting condition, and gave her several hypodermic injections of strychnine, and did not leave her for hours. She was partially unconscious; her extremities were cold and pulseless and she was without rallying power. In appearance, she was emaciated and sallow. A few days later Dr. Chase made a physical examination of plaintiff, and found the womb fixed and the patient suffering from great tenderness of the abdomen. The broad ligaments supporting the womb, and the surrounding tissue, he found inflamed and enlarged. There was also a swelling in the abdominal region which lasted for weeks. In his opinion this condition was due to an acute injury, a blow or concussion. He visited her three times a day for a period of about two months, and continued to visit her at intervals up to the time of testifying; he thought that the injury received by plaintiff had almost destroyed her nervous system, and that her health and vigor were permanently impaired.

Dr. J. H. Ford, assistant surgeon at Ft. Reno, testified that plaintiff, before her injury, was remarkably strong and robust and in excellent health. She had been accustomed, as the wife of the commanding officer, to attending the balls and social functions at the fort, and taking a leading part therein, and she was also fond of doing her own housework, although it was not necessary for her to do so. She had not suffered from any chronic disease or serious womb trouble. The first time Dr. Ford saw plaintiff after the infliction of the injury was on November 15, 1904, at the Coates House, after she left the hospital and just prior to her return to Ft. Reno. To him “her appearance indicated that she had undergone some violent shock.” “She had lost greatly in weight, and was suffering from a nervous lack of strength.” He further testified that her ill condition had steadily progressed, and' that she was a nervous and physical wreck. He did not think it possible that she could ever he restored to health.

Dr. John E. Snell, a physician living in Kansas City, made an examination of plaintiff just before the trial, and testified that he regarded Mrs. Partello as a nervous wreck and that her ill condition was permanent.

The testimony further showed that plaintiff and her family had attended the World’s Fair at St. Louis, and that the injury occurred while returning therefrom; that while in St. Louis she attended the Fair regularly, walked about a great deal, never complained of being tired, and had all the appearance of a strong and vigorous woman. According to plaintiff’s own testimony, she had journeyed twice with her husband to the Philippines, where she was in the habit of taking long horseback rides, lasting for days, merely for pleasure’s sake, and had also ridden horseback at Ft. Eeno. A number of witnesses testified as to the difference in plaintiff’s appearance and health between the time she left Ft. Eeno for St. Louis and the time she returned after the injury.

Dr. A. L. Fulton, connected with the defendant railway company as consulting surgeon, testified for the defendant that he, in company with Dr. Hamel, made an examination of plaintiff on the day of the injury. Her nose had been bleeding, but he could not see that it had been injured or broken. She complained of pain in the abdominal region and that something was wrong with her womb, and in order to relieve any irritation that might exist there Dr. Fulton inserted a small quantity of wool, saturated with ichthyol oil. He made no further examination save by palpation of the bowels. His opinion was thbt there was no displacement of the womb. Two weeks afterwards he and Dr. Hamel visited the plaintiff at the hospital, and found her sitting in a chair beside her bed. They asked her how she felt, and she replied that she was practically well, and they understood her to say that she was going to leave the hospital next day.

Dr. Lester Hall, a physician and surgeon of Kansas City, who took charge ■ of plaintiff a. day or two after the injury, testified that he examined her externally and found her suffering from pain in the abdomen. He advised local applications of antiphlogistine and hot water bottles to relieve the soreness, and this was kept up for about two weeks. He also discovered that the womb was much enlarged, but not extraordinarily sensitive, and that there was no displacement. Her side Was somewhat swollen and very sensitive to pressure, and it was his opinion that such condition might result from a severe muscular strain, or a blow or concussion. About two weeks after this examination he performed an operation upon her. There had been a rupture of the perineum in giving birth to a child, and he cut away the scar tissue and sewed up the lacerated parts. This, however, was an old laceration, and she had been going about for years, in that condition. He also performed an operation on plaintiff’s womb, curetting it. She remained in the hospital about five weeks, and kept to her bed during nearly all that period, and when she left the hospital she was carried to her carriage.

The testimony of witnesses differed as to the rate of cspeed of the passenger train at the time of the collision. The engineer and fireman testified that the speed was about four or five miles an hour, while Dr. McDonald, who was in the same car 'with plaintiff, testified that in his judgment the train’s speed was at the rate of twelve or fifteen miles an hour. The testimony further tended to show that there was a curve in the main track at the point where it converged with the cross-over track, and that neither the engineer nor fireman from the positions they occupied on the engine of the passenger train could see the misplaced switch in question, and had to depend on the signals of the switchman. As soon as the engine turned in on the cross-over track the engineer, according to the testimony, put on the emergency brakes and did all in his power to stop the train and prevent the collision. Defendant’s switchman testified that he lined up the switches properly five minutes before the starting time of the train, and gave the signal to go ahead, and that he was about three hundred feet away from the misplaced switch at the time of the collision. The conductor on board the train testified that he was in the smoking car, standing up, and that when the collision occurred he was thrown backward against the door, but that he kept to his feet.

It is claimed by defendant that the trial court committed error in permitting non-expert witnesses to state their opinions as to plaintiff’s state of health before and at the time of her injury. It is well settled by the authorities that a non-expert witness may give his opinion as to the apparent health of a person whom he has had the opportunity to observe. So may a non-expert give his opinion in a great variety of cases, when the facts known to him, and to which he would be competent to testify, 'would furnish no predicate whatever for the opinion of an expert witness. As a rule, such are confined to questions of identity* and such matters as may be open to the senses, but incapable of exact description. Thus, a non-expert “may testify that a person appeared to be suffering, was, weak and helpless, appeared sick, looked pale, or paler, than usual, or was declining in health.” [12 Am. and Eng. Ency. Law (2 Ed.), 491.]

In State v. Buchler, 103 Mo. l. c. 207, it is said: “If the expressions of the countenance of one accused of crime could be seen by or reproduced before the jury exactly as it was at the time, and immediately before and after the act, there can be no doubt it 'would have great weight in determining the intent and purpose of the acensed; often it would be absolutely convincing. Such being its character, evidence of such expressions would certainly be admissible. The general rule, it is true, is that a witness must testify to facts, and the jury draw its -conclusions from these ■facts. There are, however, manifestations, expressions and conditions which language, at least of ordinary persons, cannot reproduce. Of such matters a witness is allowed to give the impression produced upon himself. This impression may be very near to an opinion. ... A person of ordinary understanding could not detail facts which would give to a jury the remotest idea of the passions expressed on the countenance, though a child one year old would distinguish anger from love in its mother’s face. Witnesses are permitted to testify to their impressions or opinions on such matters, for want of any other way to get the evidence before the jury.”

In confirmation of what has been said, we call attention to the case of State v. Ramsey, 82 Mo. l. c. 137, where a witness was allowed to state that a certain man “looked like he was scared.” In State v. Parker, 96 Mo. l. c. 393, a witness was permitted to state that certain weeds looked like they had been pressed down by one’s knees; and in Pulton v. Railroad, 125 Mo. App. l. c. 247, it is ruled that a non-expert witness may give his opinion as to state of health, hearing or sight, or the ability of another to use his arms or legs naturally, and whether such other is apparently suffering’ pain or is in possession of his or her mental faculties, or is intoxicated, excited, calm, angry, or the like. [State v. David, 131 Mo. 380; Quinn v. Railroad, 218 Mo. 545.]

The court, in our opinion, did not err in permitting the witnesses, or either of them, to testify as they did under the facts and conditions disclosed by the record.

It is next insisted by defendant that instruction numbered 5, given at the instance of the plaintiff, is erroneous, on the ground that it practically amounts to a statement to the jury that, in the opinion of the court, the evidence warranted the jury in returning a verdict for any sum up to $50,000. Said instruction is as follows:

“The jury are instructed that if, under the other instructions and evidence in this case, they should find for the plaintiff, they will assess her damages at such sum as they may find and believe from the evidence will compensate her for all bodily pain and mental anguish that they may find and believe from the evidence she has suffered as a necessary, natural and proximate result of any injury she has sustained by reason of the bruising or breaking of her nose, if any, or by reason of the bruising or mashing of her side or lower portion of her body, if any, or by reason of any such bruising or mashing of her side or lower portion of her body resulting in the displacement of her womb, if any, or by reason of any injury to her nervous system resulting from a blow to her side or lower portion of her abdomen, if any, as well as any permanent injury, if any, she has sustained from any of the above named injuries, not exceeding .the total sum of fifty thousand dollars.”

As to this instruction defendant contends that, in a case of this kind, it is contrary to the great weight of authority in this country. While counsel for defendant concedes that some of the decisions of this court seemingly approve the giving of an instruction limiting the amount of the recovery to the amount claimed in the petition, he" contends that the cases in which that practice has been approved, or in which it was said that an instruction of that kind should have been given, were cases growing out of contract where the damages were susceptible of definite ascertainment, and that in a case like this the damages are not susceptible of definite ascertainment.

We are unable to concede that such an instruction is given only in cases growing out of contract where the damages are susceptible of easy ascertainment. An instruction of that kind has in many instances been given in actions for personal injuries, slander, libel— in fact in all kinds of actions sounding in damages. Indeed, the correctness of such an instruction in damage cases does not seem to have ever been questioned by this court. It is almost a literal copy of an instruction given in Logan v. Railroad, 183 Mo. 582. Instruction No. 2 in Devoy v. Railroad, 192 Mo. 197, concludes with like language, with reference to which instruction and one other given in that case, Lamm, J., says: “The following instructions, to be commended as models of everyday simplicity, legal precision and comprehensiveness, . . . were allowed.” In Tandy v. Railroad, 178 Mo. 240, an instruction which told the jury that “if they find for the plaintiff, they will assess at such sum as they believe from the evidence will be a fair compensation to plaintiff, . . . not exceeding the specified amount,” was approved.

While similar instructions seem to have been condemned by the courts of other states, as shown by the decisions cited by counsel for defendant in his brief, we prefer to adhere to our own decisions as the settled law of this State, and as supported by the better reason.

Said in'struction is criticised upon the further ground that it submitted to the jury issues not presented by the petition. This criticism we regard as too technical, as well as unjustifiable. The instruction embraces no matter of importance not covered by the petition.

In the motion for a new trial it is alleged that the amount of the verdict is excessive. At the time of the trial Mrs. Partello was forty-six years of age, and the testimony was that at the time of and prior to the injury she enjoyed excellent health. The evidence would indicate that‘she was severely injured, but the exact nature' of the injuries sustained is not very plain. Miss Carrico, the nurse who waited on her at the hospital, was the only witness who testified that plaintiff’s womb was displaced, the physicians who examined her the day after the injury testifying that there was no displacement. It is shown by the evidence that the lower part of her right side was swollen and that there was great soreness in the abdominal region, which was the condition for some weeks, and her physicians at Ft. Reno testified that, in their opinion, this was caused by a severe blow or concussion. None of her bones were broken, and no joint dislocated or injured, and at the time of the trial there was no apparent disfigurement save a slight mark on the nose. The physicians who made personal examinations of her condition disagree in their opinions as to the permanency of her injuries, those testifying on the part of plaintiff stating that they were permanent, and those on the opposite side that they were not. She testified that she had been a nervous wreck since the time of the injury, and a physician who examined her just before the trial testified to the same effect.

The plaintiff was entitled to just and adequate compensation for her injuries, pain and suffering, and no more, there being no elements of malice in the case. As said in Adams v. Railroad, 100 Mo. l. c. 569, ‘‘ The amount of damages in cases of this kind must be left largely to the discretion of the jury, and their verdict ought not to be disturbed unless the amount is so gross as to shock the sense of justice of the judicial mind, and satisfy it that such a verdict must have been the result of passion, prejudice or partiality.” The verdict should not be permitted to stand when no inference can be drawn therefrom other than that it is the result of passion or prejudice.

In the case of Ice Co. v. Tamm, 90 Mo. App. l. c. 202, the St. Louis Court of Appeals used the following language.: “When the amount assessed is so glaringly unauthorized by any evidence, so outrageous and conscienceless as to compel a conviction that the jury were poisoned with prejudice and inflamed with resentment against the losing party, and therefore incapable of impartially weighing the evidence on the various issues submitted to them, their verdict must be wholly set aside. They are proved by the event to have been dominated by sentiments 'which unfitted them to participate in the administration of justice, and this would have been ground for setting aside the array in the first place had their state of mind been kno'wn. ’ ’

Chlanda v. Railroad, 213 Mo. 244, is in many of its features very similar to the case at bar. In that case the amount sued for was $35,000', and the verdict was for $18,000. On motion of the defendant the court granted a new trial and the plaintiff appealed. In course of the opinion delivered by this court, Lamm, J., speaking for the court, said: “The verdict is a heavy one. While it must be viewed with serene judicial judgment, yet its very size bespeaks anxious judicial scrutiny. It stands conceded there were no broken bones. There was once a slight and very temporary discoloration, but never a visible scar. There were and are no discoverable lesions or known existing abnormal organs traced to the injury. That Mrs. Chlanda has resulting nervous trouble seems put beyond all question. Her main symptoms are classified by men of science as subjective instead of objective — that is, they are got at through her own statements, except as to those visible indices such as the expression of her countenance, her loss of weight and her use of artificial aids in moving about. The testimony of her experts was based on examinations antedating the trial by a year or more. Their conclusion as to the permanency of the injuries to her nervous system must be tempered by that fact. - The disinterested commission of doctors appointed by the court gave it as their opinion that the probabilities of recovery were in her favor. We find no testimony from physicians who examined her condition at or close to the time of the trial tending to show that she was not in a class suffering from nervous trouble colored and somewhat affected by psychological phenomena prone to disappear when her mind was set at rest. We say this without the slightest intent to indicate our belief in the lack of sincerity and honesty of the worthy lady whose cause is held in judgment. There being no elements of malice in the case, she was entitled (not to punitive damages, hut) to just compensation — no more. We are of opinion the order granting a new trial may be sustained on the theory of an excessive verdict somewhat attributable to such overwrought sympathy on the part of the jury as amounts (in legal effect) to prejudice and passion. There was an assignment of error to that effect in the motion for a new trial, and the order granting one may stand on that assignment. ’ ’

Prom a reading of the facts disclosed by the record in this case, it is apparent that the amount of the verdict is excessive and beyond reason, and so gross as to shock the sense of justice. It cannot be accounted for npon any theory other than prejudice or passion. That it was largely excessive was tacitly admitted by plaintiff when she remitted therefrom the large sum of $10,000, leaving the verdict yet remaining at an excessive amount. [Gribney v. Railroad, 204 Mo. 704.]

We think the ends of justice will be subserved by a new. trial. The judgment is reversed,, and the cause remanded.

All concur.


text:
    GEORGE S. HADEN, Appellant, v. CARRIE E. GOODWIN, CHARLES W. GOODWIN and JAMES A. OWENS.
    Division Two,
    March 30, 1909.
    EJECTMENT: Possession by Defendant: After Judgment in For- ' cible Detainer: Estoppel. Ejectment cannot be maintained against a defendant unless he was in actual possession of the land in dispute at the commencement of the action. But where plaintiff sued in ejectment on September 1st for possession of a narrow strip of a lot, which strip had for some years been within defendant’s inclosure, and the evidence shows that on August 7th plaintiff took actual possession of a part of the strip for the purpose of building a foundation for an addition to his residence, and on August 29th was convicted of forcible entry and detainer, and on August 31st paid to the constable all the costs and damages, and on the same day the justice entered on his docket: “Constable reports this case satisfied and all costs paid,” and on the same day plaintiff repaired to the premises, and stated to defendant’s tenant who had brought the suit that he had paid the costs and damages and that, “I am now off of the ground,” and immediately afterwards the tenant had the grass cut off of the disputed strip and gathered grapes from the vines thereon, it was error in the trial court to give a peremptory instruction for defendants. There was a turning over and redelivery of the premises, and plaintiff is not estopped to deny there was by the fact that thereafter the justice issued a writ of restitution and this writ was introduced in evidence at the trial, either by plaintiff upon defendant’s consent or by defendant upon plaintiff’s consent. The issuance of the writ under the circumstances was wholly nugatory and unnecessary.
    Appeal from Pettis Circuit Court. — How. Louis Hoffman, Judge.
    Reversed and remanded.

      Shain & Barnett for appellant.
    The court erred in that, at the close of plaintiff's evidence, at the instance of defendants and over the objection of plaintiff, it gave a peremptory instruction in nature of demurrer to plaintiff’s evidence, directing the jury to find for defendants. (1) One ousted by forcible entry and detainer suit who submits to the judgment, pays the costs, damages and rents allowed and restores the possession, thereby places himself in position to bring ejectment, laying his ouster prior to time he dispossessed the pai*ty; and in such suit is entitled to recover premises and damages. Robinson v. Walker, 50 Mo. 19. (2) Judgment in forcible entry and detainer case is no bar to suit in ejectment for same premises. There is no actual possession gained by a forcible entry, forcible entry being an unlawful invasion of an actual possession. Carter v. Scaggs, 38 Mo. 303. (3) Such possession as one gains by forcible entry is merely constructive and when restitution has been made under the judgment the status quo is restored, and the defendant’s possession becomes from the beginning the plaintiff’s possession. Bradley v. West, 68 Mo. 69. (4) By their plea of Statute of Limitations defendants admit possession. Notwithstanding that the attorney for the defense had a writ of restitution to issue from the court, where the docket entry showed “case satisfied,” after this cause was instituted, still the testimony stands uncontradicted that costs and damages had been fully paid, restitution been fully made and possession taken prior to the commencement of this suit. The writ of restitution gave no more complete possession than was already enjoyed. Defense admits plaintiff has prima-facie legal title and place themselves squarely on a plea of Statute of Limitations. Under an issue so joined a peremptory instruction has no application in law. Whitaker v. Whitaker, 157 Mo. 242; Tatum v. St. Louis, 125 Mo. 647.

      Sangree & Bohling and Wm. D. Steele for respondents.
    (1) Plaintiff is bound by Ms own evidence, tbe same as if it was an admission in a pleading. Lilly v. Menke, 143 Mo. 137; SMrts v. Overjobn, 60 Mo. 308; Feary v. Railroad, 162 Mo. 105; Payne v. Railroad, 136 Mo. 594. (2) There is no evidence that defendants, or either of them, were in the possession of the premises at the time of the commencement of this suit. In order to recover, plaintiff had to show that at the time of the commencement of this action defendants or one of them was in the actual possession of the premises. Ins. Co. v. Cummings, 190 Mo. 269; Llewellyn v. Llewellyn, 201 Mo. 303; R. S. 1899, secs. 3056 and 30'60.
   GANTT, P. J.

This is an action of ejectment for a strip of ground off of the south side of lot seven of block three of Westenburger’s addition to the city of Sedalia.

This action yas commenced in the circuit court of Pettis county, September 1, 1905. The petition was in the ordinary statutory form and ouster was laid as of August 2, 1905'. At the October term, 1905, the defendants Charles Goodwin and James Owens each filed separate answers which were general denials.

The defendant Carrie E. Goodwin in her separate answer, denied .each and every allegation of the petition. And for a further defense, pleaded that she was the owner of lot eight of block three of said Westenburger’s subdivision, and that plaintiff was and is the owner of lot seven of said block three. That in the year 1891, the division line between the two said lots was uncertain and unknown, and that then the defendants and plaintiff’s grantor agreed upon a boundary line between said lots and located a fence upon the line so agreed upon, and that defendants have ever since that date claimed all of said lot eight and up to said fence so located, and have had the peaceable, open and notorious possession of the same up to the 7th day of August, 1905, on which last date the plaintiff and one Zenobia Haden, with strong hands, made unlawful, forcible entry upon said premises and tore down the defendant’s fence and built a foundation for an addition to the dwelling on the south side of the line so agreed upon by the defendants and plaintiff’s grantor to be the boundary line between them as aforesaid; that afterward, to-wit, on the 15th day of August, 1905, defendant’s tenant, James A. Owens, who was in possession of said premises, instituted a forcible entry and detainer suit against the plaintiff herein and the said Zenobia Haden, before N. H. Rogers, a justice of the peace,.and on the 29th day of August, 1905, the same was tried before a jury and the jury found the plaintiff herein and the said Zenobia Haden guilty in the manner and form as charg’ed in the complaint of the said James A. Owens. For further answer defendant states that neither the plaintiff herein, nor the said Zenobia Haden, has ever redelivered the possession of the premises so unlawfully entered by them to this defendant’s tenant, James A. Owens, nor to this defendant, but that the plaintiff and the said Zenobia Haden still retain possession of the said premises the same as before the institution of the said suit before said justice. This defendant for further answer states that on the 30th day of September, 1905, the said N. H. Rogers, the justice before whom said forcible entry and detainer was tried, issued a writ of restitution against the plaintiff and the said Zenobia Haden to remove them from said premises and restore said possession to the said James A. Owens, defendant’s tenant, and said writ is no’w in the hands of the constable of Sedalia township. Defendant denies that she was in possession of the premises described in plaintiff’s petition at the commencement of this ’ suit. For further answer defendant states that, if the court should find upon the hearing of this case that at the institution of this suit she was in the possession of the premises described in plaintiff’s petition, she has had the peaceable, adverse and continuous possession of said premises for more than ten years prior to the institution of this suit, claiming the same adversely to the plaintiff and his grantors, to-wit: from the —day of — ——, 1891, to the 7th day of August, 1905, and having fully answered, defendant asks to go hence with her costs.

Plaintiff for reply admitted that the defendant Carrie Goodwin is the owner of lot eight of block three of said Westenburger subdivision, but denies that there was ever an agreement as to the boundary line between said lots seven and eight and denies that there was a fence located upon an agreed boundary line between said lots. Denies the adverse possession of the tract in dispute by the defendant. Plaintiff alleges the fact to be that a fence was located upon the plaintiff’s said lot seven whereby certain portions of said lot were thrown within the enclosure of the defendants’ said lot eight at a time of which the plaintiff is not informed, but plaintiff alleges that it has been understood between defendant and plaintiff that this said fence was not on the true line between said lots, and was left as a matter of convenience with the understanding that plaintiff could at any time occupy lot seven up to the true line. Plaintiff admits the institution of the forcible entry and detainer suit as alleged in Carrie E. Goodwin’s answer, and that the finding of the jury was as therein set forth. But plaintiff denies that either he or Zenobia Haden still retained possession of said premises. Plaintiff alleges the fact to be that on the 31st day of August, 1905, and before the institution of this suit, plaintiff and said Zenobia Haden paid the damages assessed together with the costs in said forcible entry and detainer cause, and as far as within the power of plaintiff and said Zenobia Haden restored the possession to the defendant, and defendant had the possession of the same at the commencement of this suit.

This canse was tried in the circuit court, and in obedience to a peremptory instruction the jury returned a verdict for. the defendants. Within due time and in proper form an appeal was perfected to this court.

There is very little controversy about the facts. As already indicated in the pleadings it stands admitted that the plaintiff is the owner of lot seven and the defendant Carrie E. Goodwin owns lot eight, which joins lot seven on the south. Charles Goodwin is the husband of Carrie E. Goodwin and James Owens was and is the tenant of Carrie E. Goodwin, and he occupied the said lot at the time of the commencement of the forcible entry and detainer case. The testimony very clearly indicates that when the dividing fences in this block were built, they were not put upon the true lines between the same, and for some time the strip of ground in controversy in this suit was within the enclosure of the defendant, Carrie E. Goodwin. The survey made by the city authorities in 1905 located the true line between lot seven and lot eight, and showed that this strip of land was within the Goodwin enclosure. In August, 1905, the plaintiff desiring to build an addition to his residence on lot seven, tore down a part of the dividing fence and built a foundation 'wall on this strip south of where the said fence stood. Thereupon the defendants Goodwin by and through their tenant Owens, instituted a forcible entry and detainer case against the plaintiff, and judgment was rendered in Owens’s favor against plaintiff and his wife on the 29th of August, 1905, for the possession of this strip and one cent damages. On August 31, 1905, and before the commencement of this action, the plaintiff George S. Haden, the defendant in said forcible entry case, paid in full the judgment for damages and all the costs taxed in the said case, and the justice’s docket of that date contains this entry: “Constable Chaney reports this case satisfied and all costs paid.” And the itemized costs upon the justice’s docket were all marked paid. The testimony further shows that on that date, the plaintiff herein went to the land in controversy and called out James A. Owens, the plaintiff in said forcible entry case and tenant of Carrie E. Goodwin of her said lot eight, and told him that he had now paid the damages and said to him, “I am now off of the ground.” The testimony further shows that immediately afterwards, Owens had the grass cut on this disputed piece of ground, borrowing plaintiff’s mower to do it. The testimony also shows there was a grape vine on this strip and Mr. Owens gathered grapes from it.

I. The circuit court having sustained the demurrer to the testimony on the ground that the evidence did not establish that the defendants were in possession of this disputed strip of land on the day of the commencement of this action in ejectment, the first question is as to the propriety of that action by the court. Of course, the action in ejectment cannot be maintained against a defendant unless he is in the actual possession of the land in dispute at the commencement of the action. [Secs. 3056 and 3060, R. S. 1899; Llewellyn v. Llewellyn, 201 Mo. l. c. 306, 307.] Plaintiff does not controvert this, settled principle of law in this State. That this strip of land was within the enclosure of the defendants prior and up to August 7, 1905, when the plaintiff entered for the purpose of building his foundation for his addition to his residence, is conceded on all hands. The record of the action for forcible entry by Owens against the plaintiff conclusively established that plaintiff took actual possession of this strip' for the purpose of making said improvement .without having first resorted to any legal process to obtain the actual possession, and he was convicted of a forcible and unlawful entry on August 29, 1905'. Thereupon on August 31st, the plaintiff: herein sought out the constable and obtained from him a full statement of all the costs and damages which had accrued in said action and paid the same in full, and this satisfaction was entered on that date on the justice’s docket. In addition to this the plaintiff at once on the same day repaired to the premises in dispute and calling upon Mr. Owens, the tenant in possession of said lot eight, notified him that he had paid to the constable all the damages and costs, and said to him, “I am now off of the ground.” And thereafter within a few days, at least, the evidence shows that Owens cut the grass upon this disputed strip and gathered the grapes from a vine growing thereon'. But the defendants say that this did not constitute a sufficient turning over and redelivery of possession to them. For that, they say, afterwards on the 20th or 30th of September, at the instance of the attorney for Owens, the justice issued a writ of restitution in the aforesaid forcible entry case, and that plaintiff is estopped by reason, as they say, of having introduced the record of the issuance of this writ of restitution after the commencement of this action in ejectment, showing that the possession had not up to that time been redelivered to them. Inasmuch as only so much of the division fence was taken down as was necessary to enable plaintiff to lay his foundation for the addition to his residence and as the remainder of the fence stood just as it did before plaintiff constructed his foundation wall, and as he had paid all the damages and costs and had gone in person and notified the tenant in possession that he was now off of the premises and the undisputed evidence was that the tenant immediately resumed possession and cut the grass and gathered the grapes on this disputed strip, we think there was ample evidence of a redelivery of the premises to the defendants. Nothing more in reason could have been demanded. The law never exacts an unnecessary thing. Nor do we think the plaintiff is estopped by what occurred in regard to the issuing of the writ of restitution. The issuing of that writ was the act of the defendants themselves and at the time it was issued the possession had already been redelivered. Nor does the record put the plaintiff in the attitude of maintaining contradictory positions in this respect. The colloquy which occurred between counsel and the court at the time this writ of restitution was brought to its attention was as follows. Mr. Rogers, the justice being recalled in order that he might correct a statement which he had made in answer to counsel for the defendants, when he was on the stand, that he had issued the writ of restitution on September 30th, stated that it must have been issued on the ’ 25th. Thereupon counsel for the defendants said, “If the other side do not wish to offer this writ in evidence, we will offer it in evidence. ’ ’ The- Court : “Of course, it would not be proper for you to introduce it at this time.” Counsel for plaintiff: “We will not make any objection to it.” Thereupon on cross-examination, by counsel for the defendants, the following occurred: “Q. Judge Rogers, this is the writ that you issued? Ans. Yes, sir. Q. In the case ¡■of Owens v. Hayden, and it is returned by the constable? Ans. Yes, sir, with his return on it.” Counsel for defendant: “We now ask the stenographer to identify Jt.” And the paper was marked Ex. B. Counsel for plaintiff: “We have no objection to his offering it, we will offer it in evidence ourselves.” Counsel for defendants : “ Do you want it read now ? ’ ’ Counsel for plaintiff : “ We do not care about reading it now, it can be considered in evidence.” By the Court: “You, gentlemen, do not insist upon this being-read now?” Counsel for defendants: “No, sir.” When the justice was being examined prior to this, after the defendants had shown the issuance of this writ, and the date of its issuance at the instance of the attorneys for the defendants, and the return upon the writ, the court said: ‘ ‘ Why not introduce the original paper ? ’ ’ Whereupon counsel for the defendants said, “It will be here in a moment.”

Thus it appeared that without objection on the part of the plaintiff ’the defendants themselves had already proved the issuance of this writ of restitution and its service and return, and the fact was fully established before the colloquy above' recited. To now hold that the plaintiff was conclusively estopped by what occurred when the defendants offered to introduce the writ itself, would we think be utterly unreasonable. We think it was perfectly competent for the plaintiff herein, the defendants in the forcible entry and detainer case, to show as a matter of fact that without waiting to be ousted of their forcible possession by a writ of restitution, they had in obedience to the judgment of the court turned back the possession to the defendants, and the subsequent issuance of the writ at the instance of the defendants could not and did not in any manner change the effect of the actual redelivery of the premises to the defendants. And we think that the learned circuit court erred in holding it did.

Under this ruling the defendants are placed in the position of being in actual possession of this strip, enjoying all the rights and privileges belonging thereto, but not sufficiently in possession to enable the plaintiff to maintain his action- for possession. We think that the issuing of a writ of restitution at the time and under the circumstances, was wholly nugatory and unnecessary.

The defendants offered no evidence of course to sustain their plea of the Statute of Limitation, having obtained a ruling in their favor that the plaintiff could not maintain his action on the ground that they were not in possession, and of course it would be unfair to construe the record as holding that the court passed upon that question at all.

For the reasons assigned, the judgment of the circuit court is reversed and the cause remanded in order that the question of adverse possession may he tried, if defendants desire to he heard on that issue.

Burgess and Fox, JJ., concur.