author: WALKER, P. J.

text:
    GEORGE W. ELSEA et al. v. ABRAM J. SMITH et al., Appellants.
    Division Two,
    February 16, 1918.
    1. EVIDENCE: One Party Dead: Competency of Other: General Objection. The statute (Sec. 6354, R. S. 1909) declaring that if one of the parties to the contract or cause of action is dead the other party to such contract shall not be permitted to testify, was not intended to render incompetent as a witness for all purposes the surviving party to the proceeding, but only to the extent that his testimony might be subject to question by the other party if living. Hence, a general objection- to the admission of the testimony of the surviving party based on the death of the other should be overruled, unless the examination discloses a purpose to violate the reason of the rule.
    2. -: Incorrect Objection. An incorrect objection urged against the admission of proffered testimony amounts to nothing more than a general objection; and, hence, if the testimony offered is admissible for any purpose, both the incorrect specific objection and a general objection go for naught.
    3. CONVEYANCE: Delivery: Possession of Land. Where the deed was found in grantee’s trunk after her death, and discloses when it was made and signed, and other evidence shows the period of her possession, not only of the deed, but of the' land described therein and the nature of her tenure, all in consonance with the deed, and there is no affirmative countervailing evidence, the evidence is sufficient to establish delivery of the deed.
    4. REVIEW: General Finding by Court: No Declarations of Law. Where the court below in trying issues of fact in a legal action sits as a jury and makes a general finding which the record shows was sustained by substantial evidence, the appellate court will not review the judgment, unless declarations of law were asked or given; and where no declarations of law were asked or given in such case, no questions are left for review except such as may appear in the record proper.
    5. CONVEYANCE: Manual Delivery: Acknowledgment After Grantee’s Death. Acknowledgment is not a prerequisite to the validity of a deed or to a valid transfer by it of the title from the grantor to the grantee. The purpose of the statute requiring acknowledgment (Sec. 2792, R. S. 1909) is to protect creditors and subsequent purchasers. Title vests in the grantee upon the signing and delivery of the unacknowledged deed, and a subsequent acknowledgment, even after the grantee’s death, does not affect its validity.
    6. --: Estate Tail: Reversion Over in Case of Death. A deed by which the grantor conveyed land to his daughter “and to the heirs of her body begotten,” with the proviso that if the said daughter “should die without heirs of her body, said lands shall revert to and become the property of ‘the grantor’ and in case of his death the same shall descend to his heirs” and “provided further that if said” daughter “shall die, leaving surviving heirs of her body begotten, and the said heirs shall die without issue then said lands shall revert to and become the property of the said’’ grantor “and in case he be then deceased the same shall descend to his heirs,” created an estate tail, and being such, by operation of the statute the daughter took a life estate, and upon her death title vested in her only surviving child, and passed by his will to his devisees at his death without issued and the reversion to the grantor is void, notwithstanding it is clear that the grantor’s intention was that upon the death of his daughter’s child without issue the lands should descend to his own immediate heirs.
    7. -: -: Remainder: Executory Devise After Fee Vested. The statute (Sec. 2872, R. S. 1909) abolished estates tail, and provided that, when such an estate is attempted to be created by devise or grant, the first taker shall be seized of the land for life, and that the remainder shall vest in fee in the persons to whom the estate tail would, on the death of the first grantee or devisee in tail, pass in the course of the common law by virtue of such grant or devise. And Section 2874 makes impossible the existence of an executory interest after the vesting of the fee. A vested fee created by law in the second taker cannot be cut down l?y a defeasance or executory reversion, dependent on the said second taker dying without issue, but upon the death of the first taker becomes absolute in the second.
    8. -: Remainder: Limited Upon Fee. A remainder cannot be limited upon an estate in fee, but must have a particular estate to support it.
    9. -: Insertion of Clause After Delivery. An insertion in the deed by the grantor at the time of its acknowledgment, long after its delivery, that the guardian of the infant remainderman was to pay the taxes annually, in no wise affected its validity; it added nothing to and took nothing from the conveyance, and its presence was surplusage.
    Appeal from Saline Circuit Court. — Hon Samuel Davis, Judge.
    Affirmed.

      Duggins & Duggins and Virgil V. Huff for appellants.
    (1) The plhintiff, George W. Elsea, was incompetent to testify for his co-plaintiff, American Bible Society, as both had an identical interest in the- validity of the deed sought to be established. Sec. 6354, R. S. 1909; Hisaw v. Sigler, 68 Mo. 449; 40 Cyc. 2334; Dumbar v. Meadows, 176 S. W. (Ky.) 1167. (2) The delivery of a deed is essential to its operation as a conveyance, and the grantee must have accepted it. Hall v. Hall, 107 Mo. 107; Wren v. Sturgeon, 184 S. W. 1036. (3) The burden of proof of the delivery of a deed is on him who alleges it. 13 Cyc. 730. (4) It is presumed that a deed was not delivered so as to become operative until after the date of its acknowledgment. Fontaine v. Bank, 57 Mo. 561; Barber Asphalt Co. v. Field, 174 Mo. App. 11; Gerardi v. Christie, 148 Mo. App. 91; 13 Cyc. 730, 734. (5) Where a deed shows on its face that it is to be executed by two or more grantors, who afterwards actually execute it, it is presumed that the deed was not delivered until all the grantors had executed the same. Gilman v. Morris, 13 Mo. App. 115; 13 Cyc. 565; Arthur v. Anderson, 9 S. C. 234; Overman v. Kerr, 17 Iowa 489, 490; Parker v. Parker, 67 Mass. 411. (6) When an instrument has been changed or altered, the presumption is that the alteration was made before or at the time of its execution. Paramore v. Lindsay, 63 Mo. 63; 2 C. J. 1275; Kilpatrick v. Wiley, 197 Mo. 123; Stillwell v. Patton, 108 Mo. 352, 360; Carterville v. Luscombe, 165 Mo. App. 521; Collison v. Norman, 191 S. W. 60. (7) The entire conduct of the parties with reference to the deed before and after its discovery may be taken into consideration in determining when, in fact, the deed was delivered. Miles v. Robertson, 258 Mo. 717; Cook v. Newby, 213 Mo. 471. (8) The execution of a deed will not be presumed until its completion and execution have been established by proof. 13 Cyc. 554; Turner v. Carpenter, 83 Mo. 333, 336; Martindale on Conveyances, sec. 220, p. 201; Tiedeman on Real Property, 812. (9) Although the deed in question was made to Lou E. Elsea and the heirs of her body, with reversion to the heirs of the grantor, and not delivered until after her death, yet the deed would be valid as to the heirs of the body of the first taker named, the description “heirs of the body of Lou E. Elzea” being sufficient to identify Earle N. Elzea as the person intended as grantee under the deed. Papin v. Massey, 27 Mo. 450; Boone v. Moore, 14 Mo. 426; 13 Cyc. 538; Martindale on Conveyances, sec. 67, p. 70; 1 Jones-on Conveyances, par. 224, 225, 226. (10) The first provision of the deed, “Provided, however, if the said Lou E. Elzea should die without heirs of her body, said lands shall revert to and become the property of the said Paschal E. Smith, and in case of his (said Paschal E. Smith) death the same shall descend to his heirs,” is “dead and out of the case,” because that contingency can never happen. Gannon v. Pauk, 200 Mo. 96; Sullivan v. Garesche, 229 Mo. 496; Jones v. Jones 123 S. "W. 29. (11) The deed to Earle N. Elsea, the heir of the body of Lou E. Elsea, providing that upon his death without issue the title should revert to the grantor and his heirs, created in Earle N. Elsea an estate in fee simple defeasible upon his death without' issue, with reversion to the heirs of Paschal E. Smith. Sec. 2873, R. S. 1909; Yocum v. Siler, 160 Mo. 281; Gannon v. Pauk, 200 Mo. 75; Gannon v. Albright, 183 Mo. 257; Trust Co. v. Curley, 255 Mo. 393, 416; Yocum v. Parker, 130 Fed. 722; 134 Fed. 205; Ives v. Bank, 140 Mo. App. 300; Wilkerson v. Boyd, 136 N. C. 46; 4 Kent, 9, 10; Brown v. Tuschoff, 235 Mo. 458. .(12) Sec. 2873, R. S. 1909, has been construed to apply to all limitations upon death without issue, whatever the character of the estate following. Gannon v. Albright, 183 Mo. 257; Faust’s Admr. v. Birner, 30 Mo. 417; Naylor v. Godman, 109 Mo. 550. (13) The clause of the deed providing that the estate, in the event of the defeasance without heirs, revert to the grantors and his heirs, being in the nature of a condition, reversionary in character and vested, the rule against perpetuities does not apply to the estate vested in the grantor and his heirs thereby. Gray on Rule Against Perpetuities (2 Ed.), par. 41, 304, 311, 312 and 455; Hopkins v. Grimshaw, 165 U. S. 352; Stewart v. Coshow, 238 Mo. 662, 673; 30 Cyc. 1473; Universalist Society v. Boland, 155 Mass. 171; Tobey v. Moore, 130 Mass. 448; Cowell v. Colorado Springs Co., 100 U. S. 55; French v. Old Society in Boston, 106 Mass. 448; Deacon v. Trust Co., 197 S. W. 26. ' (14) But if the rule against perpetuities should be offended by the above limitation, the effect would be to render the deed void, and leave the estate in the heirs of the grantor. Lock-ridge v. Mace, 109 Mo. 162; Riley v. Jaeger, 189 S. W. 1168. (15) “An executory devise may be created to take effect as well on a condition that will terminate an estate tail as one that will terminate an estate in fee simple.” Gannon v. Pauk, 183 Mo. 265, 273; 16 Cyc. 608, 609; Linn v. Alexander, 59 Pa. St. 43; 1 Washburn, Real Prop. (6 Ed.), 91; 2 Blackstone Com., 154; 4 Kent Com., sec. 298. (16) Under the statutes of Missouri of 1825 and 1865 abolishing entails, limitations over in default of heirs of the body of the first takers are permitted, and such limitations, being alternate remainders, are outside of the estate tail created in the deed, and in derogation thereof, yet these remainders are not stricken down by the operation of the statute along with the estate tail, but by the uniform decisions of the courts are conserved and enforced as if limited after any other life estate. Farrar v. Christy, 24 Mo. 453, 470; Harbison v. Swan, 58 Mo. 153 (under statute of 1825); Wood v. Kice, 103 Mo. 329;.Cox v. Jones, 229 Mo. 53 (under statute 1865, the present statute). It is admitted the rule was otherwise as to such remainders under the statute of 1845 abolishing entails. Brown v. Rogers, 125 Mo. 390. (17) The results of any construction may he taken into consideration in testing the soundness of that construction, and as the purpose of the statute is to abrogate distinctions between estates, and as the construction of the statute not allowing defeasances cutting it down would make a peculiar type of remainder in fee, such construction should be discarded as unsound and out of harmony with the purpose of the statute. 2 Lewis, Sutherland, Stat. Const., 1487-1490 j' Bowers v. Smith, 111 Mo. 45, 55; Lamar v. Lamar, 128 Mo. 210. (18) The mischiefs to be remedied by the statute are those arising from entails, and not from defeasances and other limitations, and the statute should be confined by contraction within the limits of the obvious purpose of its enactment. 2 Lewis, Sutherland, Stat. Const., 471 et seq.; 4 Kent, 17, 18; Dowdy v. Wamble, 110 Mo. 280; Greeley v. Railway, 123 Mo. 157. (19) Deeds should be so construed as to give effect, if possible, to every word in them, and some effect should be given to the reversionary limitation in the deed at bar. Sims v. Brown, 252 Mo. 58; Perrett v. Bird, 152 N. C. 220.

      Roy D. Williams, A. B. Hoy, A. R. James and R. M. Reynolds for respondents.
    (1) The finding and judgment of the trial court on a question of fact in a law case in which no instructions are asked or given cannot be reviewed or disturbed by the appellate court, where there is any substantial evidence to sustain it. Coulson v. LaPlant, 196 S. W. 1144; Rausch v. Michel, 192 Mo. 293; Jordan v; Davis, 172 Mo. 599; Lewis v. Muse, 130 Mo. App. 201; Sutter v. Raeder, 149 Mo. 307; Bozarth v. Legion of Honor, 93 Mo. App. 564; Easley v. Elliot, 42 Mo. 289; Wilson v. Railroad, 46 Mo. 36; Weilandy v. Lemuel, 47 Mo. 322; Hamilton v. Boggess, 63 Mo. 233; Henry v. Bell, 75 Mo. 194; Harrington v. Minor, 80 Mo. 270; Gaines v. Pender, 82 Mo. 497; Cunningham v. Snow,-82 Mo. 587; Seiferer v. St. Louis, 141 Mo. 586; Swayze v. Bride, 34 Mo. App. 414; O’Howell v. Kirk, 41 Mo. App. 523; Claflin v. Burkhart, 43 Mo. App. 226; Morgan v. Railroad, 51 Mo. App. 523; Hatton v. City of St. Louis, 264 Mo. 634; Searritt Est. v. Casualty Co., 166 Mo. App. 570; Wilkinson v. Western Union, 163 Mo. App. 148; Pendergast v. Graverman, 166 Mo. App. 33; Strother v. Barrow, 246 Mo. 241; Paxton v. Bonner, 172 Mo. App. 479; Keyser v. Hayes, 190 Mo. App. 380. (2) Every presumption and intendment favor this judgment. No declaration of law or instructions were asked and none were given. If the judgment can be sustained' upon any theory, it will' be done. • Searritt Estate v. Casualty Co., 166 Mo. App. 570; Rausch v. Michel, 192 Mo. 293. (3) Witness George W. Elsea was a competent witness for his co-plaintiff, American Bible Society. Section 6354, R. S. 1909; Hoyt v. Davis, 30 Mo. App. 309; Steward v. Kirk, 69 111. 509; Ely v. Clute, 19 Hun (N. Y.), 332; Story v. Story, 61 S. W. 229 (Ky); Anderson v. Aikens Estate, 157 N. W. 334; 40 Cyc. 2270-c.; Angelí v. Hester, 64 Mo. 144; Ray v. Westfall, 183 S. W. 629; Shanklin v.. McCracken, 140 Mo. 348; Brown v. Patterson, 224 Mo. 639. (4) The evidence of George W. Elsea being' competent for any of .his co-parties in this cause, inured to the benefit of all parties, including himself. Ray v. Westfall, 267 Mo. 130; Gunn v. Thurston, 130 Mo. 339; Conrey v. Pratt, 248 Mo. 576. (5) The deed in controversy was delivered to Lou E. Elsea, in her lifetime. In addition to the direct evidence in the record the presumptions in this case favor the delivery of the deed to her. (a) “Where a grantee is in possession of a deed which has been duly executed the presumption arises that it has been duly delivered to him.” 13 Cyc. 733; Pitt v. Sheriff, 108 Mo. 110; Allen v. DeGroodt, 105 Mo. 442; Rogers v. Carey, 47 Mo. 232. (b) Where a deed shows on its face that it was signed and sealed on a certain date it will be presumed to have been so signed and sealed on that date. “The date of a deed is prima-facie evidence of its execution on that day.” 13 Cyc. 727. (c) The presumption, in favor of the delivery of a deed of gift or settlement is declared to be stronger than in the case of a deed of bargain and sale. 13 Cyc. 730; Crowder v. Searcy, 103 Mo. 118. (d) An unacknowledged deed is as effectual to pass title as between the parties thereto and those with actual notice, as though it was duly acknowledged and recorded. St. Joseph v. Baker, 86 Mo. App. 315; Saunders v. Blythe, 112 Mo. 5. (e) Even if George W. Elsea is not a competent witness, there is ample evidence in the record outside of his testimony, to show the gift of this land to Lou E. Elsea and the heirs of her body, by Paschal E. Smith and the delivery of the deed by him to her. (6) The deed was sufficient to and did vest the estate for life in the premises in.Lou E. Elsea, the remainder in fee simple in Earle N. Elsea. Sec. 2872, R. S. 1909; Sec. 3941, R. S. 1879; Sec. 2874, R. S. 1909; Sec. 3942, R. S. 1879. (a) Under the common or statute law of England the deed in controversy would have created an estate tail. Fanning v. Doan, 128 Mo. 323. An estate tail, then, being one that reverts to the grantor upon failure of issue of lineal descent from the first taker, cannot be affected by the fact of the grantor putting into the deed the provision for it to revert on failure of such issue, and it still remain an estate tail, though the deed contains a reverter clause. Cox v. Jones, 229 Mo. 53. But estates tail are not permitted in this State.- See. 2872, R. S. 1909. Section 2874, R. S. 1909, provides that the heirs .of the life tenant, as remaindermen shall take as purchaser in fee simple, by virtue of the remainder so limited in them. Gray v. Ward, 234 Mo. 291; Stockwell v. Stockwell, 262 Mo. 671; Hall v. French, 165 Mo. 430; Hunter v. Patterson, 142 Mo. 310; Clarkson v. Clarkson, 125 Mo. 381; Reed v. Lane, 122 Mo. 311; Bone v. Tyrell, 113 Mo. 175; Emmerson v. Hughes, 110 Mo. 627; Phillips v. Laforge, 89 Mo. 72; Burris v. Page, 12 Mo. 358; Farrar v. Christy, 24 Mo. 468; Chiles v. Bartleson, 21 Mo. 344; State ex rel. Farley v. Welsh, 175 Mo. App. 303. (7) The interlineation of the words, “the taxes is to be paid by the gardee of the child of Lou E. Elsea, yearly,” adds nothing to nor detracts anything from the title conveyed. The conveyance was still to Lou E. Elsea and to the heirs of her body-. It is immaterial whether they were interlined in the deed at the original delivery thereof to Lou E. Elsea., or whether they were added, in an unauthorized way, by Paschal E. Smith' at the time he made the acknowledgment, after the death of Lou E. Elsea. In the last instance, even if they had been words of any significance, they could not effect anything, because they were unauthorized. In the first instance they had no significance, whatever, in passing a title different from the one clearly expressed in the deed to Lou E. Elsea for life and to the heirs of her body upon her death, in fee simple. Where an estate or interest in land is clearly granted, it can not be afterwards cut-down by the use of words which are ambiguous or inferential in intent only. Gannon v. Pank, 200 Mo. 94; Sevier v. Woodson, 205 Mo. 214; Small v. Field, 102 Mo. 127; Middleton v. Suddington, 183 S. W. 443. (8) The last proviso in said deed, to-wit: “If the said Lou. E. Elsea, shall die leaving surviving heirs of the body begotten, and the said heir or heirs shall die without issue then the said lands shall revert to and become the property of the said Paschal E. Smith, and in case he shall be then deceased, the same shall descend to his heirs,” is void and has no effect whatever. Sec. 2872, R. S. 1909; Sec. 3941, R. S. 1879.
   WALKER, P. J.

This is a suit brought by the respondents against the appellants to quiet title to 240 acres of land in Saline County. Upon a trial before the court a judgment' was rendered for the respondents, from which the appellants have prosecuted this appeal.

The respondents claim as devisees under a.will of Earle N. Elsea, the appellants as the heirs of Paschal E. Smith, who is the common source of title.

' In March, 1883, Paschal E. Smith made a deed to the land in controversy to his daughter Lou E., intermarried with one George W. Elsea. Soon thereafter the grantor built a dwelling on the property, as he stated to his neighbors, “for his daughter Lou,” to whom he said he had deeded the land. She and her husband' took possession of the premises and improved, occupied and Used the same as their own until her death in September, 1885. Two weeks prior thereto she gave birth to a son who is the Earle N. Elsea mentioned herein. The day after her death the deed from her father to the land was found in her trunk. It had not been acknowledged and the evidence is indefinite as to whether it had been signed by the wife of Paschal E. Smith. Several months after the death of Mrs. Elsea, her husband, George W. Elsea, took the deed to Paschal E. Smith, and it was by him and his wife acknowledged and returned to George W. Elsea as originally drawn, with the exception of the insertion in the body of the same of these words: “the taxes to be paid by the guardee of the child of Lou Elsea yearly. ’ ’

The granting clause of this deed is as follows: “Unto the said Lou E. Elsea, and to the heirs of her body begotten.” Between the description of the land and the habendum clause appear the following provisos: “Provided, however, if the said Lou E. Elsea should die without heirs of her body, said lands shall revert to and become the property of Paschal E. Smith, and in case of his (said Paschal E. Smith’s) death the same shall descend to his heirs. Provided, further, if the said Lou E. Elsea, shall die, leaving surviving heirs of her body begotten, and the said heir or heirs shall die without issue then the said lands shall revert to and become the property of the said Paschal E. Smith and in case he be then deceased, the same shall descend to his heirs.” The habendum clause is: “Unto the said Lou E. Elsea and to her heirs as above set forth and not otherwise forever.”

Earle N. Elsea, named herein, is admitted to have been the only heir of the body of Lou E. Elsea. He lived to manhood and used and occupied the land as his own until March, 1912, when at twenty-seven years of age he died without issue. He left a will devising a life estate in the land to his father, George W. Elsea, and directing upon the death of the latter that the land be. sold by a trustee named and the proceeds turned over to the American Bible Society.

The specific nature of the respective claims of the respondents to the land is, therefore, as follows: George W. Elsea as life tenant; the American Bible Society as residuary legatee; and Henry S. Colvert as trustee and executor named in the will. The property is and has been since the death of Earle N. Elsea in the possession of the life tenant.

The record is indefinite as to the date of the death of Paschal E. Smith. It is sufficient, however, for us to know, which fact does definitely appear, that he was not living at the time of the institution of this suit, and that he died before Earle N. Elsea. Appellants, as heirs at law of Paschal E. Smith, claim title to tfye lands upon the assumption that there was no sufficient proof of the delivery of the deed from him to Lou E. Elsea, and, as a consequence, that the execution and delivery of same to her former husband, George W. Elsea, after her death, created in Earle N. Elsea as the “only heir begotten of the body of Lou E. Élsea” a defeasible estate in fee, determinable upon the death of the latter without issue; that upon his death without issue the fee, under the terms of the deed, vested absolutely in appellants as heirs of Paschal E. Smith. They also claim alternatively that, if the delivery of the deed in the lifetime of Lou E. Elsea be conceded, her life estate thereby created did not, in view of the death of Earle' N. Elsea without issue, destroy their alleged resultant fee in the land which vested upon the delivery of the deed.

The rulings of the trial court assigned as error are: the admission of the testimony of George "W. Elsea in behalf of his co-plaintiff, American Bible Society; that the deed was delivered prior to the date of its acknowledgment; that the limitation over to Paschal E. Smith and his heirs after the vesting of the estate of Earle N. Elsea violated the rule as to perpetuities; that Sections 2872 and 2874, Revised Statutes 1909,- which abolished entails and out of a life estate created a fee, also struck down the reversionary interest claimed by appellants to have been created in them as a defeasance or executory interest upon the death of Earle N. Elsea without issue; and generally as a consequence of the foregoing rulings that the court erred in finding for the respondents, and its converse in not finding for appellants. These in their order:

I. The portion of Section 6354, Revised Statutes 1909, invoked by appellants in the contention that error was committed in the admission of the testimony of George W. Elsea, is as follows: “in actions where one of the original parties to the contract or cause action in issue and on trial is dead, . . . the other party to such contract shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him

A somewhat technical, but at the same time a sufficient, reason for overruling this contention lies in the condition of the record as to the nature and extent of tire objections interposed by appellants to the introduction of this testimony. Counsel for appellants urged these general reasons as to the incompetency of the witness: “Well, we think, Your Honor, he cannot testify in the case. He is claiming by and through a deed made by his son, who is deceased, and also under a title that Earle claimed through his mother, and he was the husband of this woman Lou Elsea, and therefore, is incompetent to testify in the case.” The objection was overruled, exceptions saved and the witness was permitted to testify in the separate behalf of his co-plaintiff. The reason for the overruling of the objection and the consequent admission of the testimony involves a distinction without a difference because under the express terms of the statute the incompetency extends when applied with reason, not only to the testimony proffered in the witness’s own favor, but as well to that in favor of any party to the action claiming under him. While the objection urged is based generally upon the statutory ground of exclusion, viz: the death of one-of the original parties to the contract, it was untimely, too sweeping when made, and was therefore properly overruled. It is a well worn maxim that “the reason of the law is the life of the law.” The purpose of this statute, it is true, is to silence the voice of one of the parties to a litigated proceeding, where death has hushed into eternal stillness that of the other; hut it must be construed in a reasonable manner and one compatible with ■ the purpose of its enactment. [Weiermueller v. Scullin, 203 Mo. 466.] This statute was not intended to render incompetent as a witness for all purposes the surviving party to the proceeding, but only to the extent that his testimony might be subject to question by the other party if living. In other words, the disqualification is not general, but is limited to transactions between the witness and the party then dead. [Eaton v. Cates, 175 S. W. (Mo.) 953; Mann v. Balfour, 187 Mo. 290, 304; Burns v. Polar Wave Ice Co., 187 S. W. (Mo.) 147.] Ruled otherwise, the reason for the statute ceases to exist. When, therefore, the surviving party to a proceeding is placed on the witness stand, as in this case, a general ■ objection to the admission of his testimony based on the death of the other party should be overruled unless the examination discloses a purpose to violate the reason of the rule. In short, the portion of the statute under review is not one of absolute exclusion, but of limitation. Until the limit has been reached such a witness’s testimony is as competent except for thq inhibited purposes as that of any other. The objection urged,, therefore, to George W. Elsea’s testimony, while it correctly stated the reason why same might be incompetent, was ineffectual to preserve reviewable error, unless, upon an attempt being made to introduce evidence of the character intended to be excluded by the statute, timely objection had been made to its admission and exceptions saved to an adverse ruling in regard thereto. Otherwise, the presumption might well be indulged that the objector had contented himself with a statement of a reason why the witness’s testimony might be held incompetent but did not care to avail himself of his right to demand its exclusion when offered. This does not involve a case where a proper objection was made at the threshold of the admission of a class of evidence; the objection was not to the evidence except by inference, but to the witness. It does not come within the rule, therefore, where one general objection to the testimony of a certain class will obviate subsequent objections. Bailey v. Kansas City, 189 Mo. 503, affords an illustration of this class. The only objection other than the one noted, made by counsel for appellant to this testimony, was that the answers sought to be elicited were hearsay. This will not suffice to preserve an objection to the witness’s competency under the statute. The reason urged to sustain the objection that the testimony offered was hearsay was, as the record discloses, incorrect. If a portion of the testimony had been hearsay in the absence of'a specific objection, to that so classified, the court would have been authorized to overrule the objection as being too broad. [Simpson v. Van Laningham, 267 Mo. 286, 183 S. W, (Mo.) 324.] But the objection incorrectly stated the reason for same. The purpose in requiring specific objections to testimony is to give definite notice of the objector’s grounds for same to the trial court and opposing counsel, that the one may be exxabled to rule intelligently thereon and that the other may present arguments against its admission. [Kinlen v. Railroad, 216 Mo. l. c. 174; O’Neill v. Kansas City, 178 Mo. 91, 100; Costigan v. Mich. Trans. Co., 38 Mo. App. 219.] An incorrect reason urged against the admission of testimony amounts to nothing more than a general objection to same, because it gives no proper information as to its purpose. If, therefore, the testimony offered is admissible for any purpose, the objection goes for naught. [State ex rel. West v. Diemer, 255 Mo. 336, 164 S. W. (Mo.) 517; Dean v. K. C., St. L. & Chi. Ry., 199 Mo. 386, 97 S. W. 910.] A careful review of this testimony does not, however, disclose an examination which brought the witness within the inhibition of the statute, and while the action of the trial court in overruling the objection is sustained on the ground that it was not timely nor specific, it is pertinent to add that the appellant was not hurt by the trial court’s ruling and has no ground of complaint.

II. Proof of the delivery of the deed is claimed by appellants to have been lacking. These are the facts: The deed was found in the trunk of Mrs. Elsea after her death. The instrument itself disclosed when it was made and signed ar\d other evidence showed the Peri°d of her possession, not only of the deed, but of the land described therein and the nature of her tenure. There was no affirmative evidence to countervail this proof; at best the attempted refutation of same consists of arguments based on inferences. The evidence in itself, therefore, is sufficient to sustain a claim of proof of delivery. This will suffice to dispose of this contention. [Barbee v. Bank, 240 Mo. 297, 307; Schooler v. Schooler, 258 Mo. 83.]

This record, however, for a more general reason authorizes the sustaining of the findings' of the trial court, not only as to the delivery of the deed, but as to the other facts upon which it based its judgment. The ac^on w^ich was under Section 2535, Revised Statutes 1909, was tried as one at law; the trial court. sat as a jury; no declarations of law or instructions were asked or given; there was substantial evidence to uphold the trial court’s finding. This finding, which was relatively that of a Verdict of a jury, was a general one. We will, under such circumstances, not undertake to review the facts, and no question of law having been saved we will review only those which confront us in the record proper. The rule governing our review in this regard has been given added strength by repeated applications of same to cases presenting like record conditions to the one at bar. Not only once but often have we said that where the court below in trying issues of fact sits as a jury and makes a general finding which the record shows was sustained by substantial evidence, we will not review the judgment unless declarations of law are asked and refused. Where, therefore, as here, the evidence offered reasonably tends to sustain the finding of the trial court, we will hold same to be conclusive (St. Louis v. Railroad, 197 S. W. (Mo.) l. c. 109; In re Lankford’s Est., 197 S. W. (Mo.) 147, 152); and furthermore, where in addition no declarations of law were asked or given no questions are left for review except such as may appear in the record proper. [Rausch v. Michel, 192 Mo. l. c. 302; Hatton v. St. Louis, 264 Mo. 634, 646; Coulson v. La Plant, 196 S. W. (Mo.) 1144, 1146.]

Appellant urges, however, that although it be conceded that Mrs. Elsea had prior to and at the time of her death manual possession of the deed, yet lacking an acknowledgment, it did not effect a transfer of the property from the grantor to her; or, in other words, was not such a deed as is contemplated by law and hence did not vest title in her, which did not pass until the date of the acknowledgment, which was subsequent to her death, when the title vested in her issue then in being, who was the Earle N. Elsea mentioned herein.

The statute provides that “all deeds or other conveyances of lands, or of any estate or interest therein, shall be subscribed by the party granting the same, or by his awful agent, and shall be acknowledged or approved and certified in the manner herein provided.” [Sec. 2792, R. S. 1909.] Other Sections (Sections 2794 and 2799) prescribe who shall take acknowledgments and the forms of same, but they add nothing to the requirements of Section 2792, and hence need not be considered in this connection. While this section requires an acknowledgment, it is not a prerequisite to the validity of the deed as effecting a transfer of the title from the grantor to the grantee and the latter’s heirs. The purpose of the section being to protect creditors and purchasers, the title vests in the grantee without an acknowledgment as completely as if the formalities of the statute had been complied with. [Schroeder v. Turpin, 253 Mo. 258, 270; Vincent v. Means, 207 Mo. 709, 715.] The subsequent acknowledgment in no way affected the question of validity. The title vested upon delivery as completely as if all formalities had been complied with. The objection, therefore, so far as it seeks support on this ground must be considered without merit.

III. Preliminary contentions disposed of, we are confronted with the construction of the deed from Paschal E. Smith to Lou E. Elsea. Upon this depends the determination of this case. Upon the terms of this deed, the material parts of which we have set out jn tbis státement, an estate tail was created. [Tiffany, Mod. Law R. Prop., p. 53, sec. 22; Cox v. Jones, 229 Mo. 53, 65; Clarkson v. Clarkson, 125 Mo. 381, 385; Reed v. Lane, 122 Mo. 311, 313.] That it was the purpose of the grantor to create an estate of this character is evident from the terms of the' deed. According to a well established rule a deed is to be construed as nearly as possible in harmony with the purpose of the grant- or to be determined from the terms of the instrument. [Eckle v. Ryland, 256 Mo. 424, 440; Howell v. Sherwood, 242 Mo. l. c. 536.] Thus interpreted, it would result in a holding that the title to the land in question is vested in the defendants. An express statute, however, precludes such a ruling. Estates tail have no existence under our system of land tenure; they were abolished in this State in 1825. [I Laws 1825, sec. 4, p. 216.] While this statute was somewhat modified in its phraseology in 1845 (Sec. 5, p. 219, R. S. 1845), and again in 1865 (Sec. 4, p. 442, Gr. S. 1865), its underlying purpose, despite its changes in verbiage, was and is to abolish this character of estates, and provide, in accordance with the present statute (Sec. 2872, R. S. 1909), the same in effect as its predecessors, that when, according to The terms of a devise, gift, grant or other conveyance, an estate tail is attempted to be created, the first taker shall be seized thereof for his natural life only, and that the remainder shall vest in fee in the persons to whom' the estate tail would on the death of the first grantee, devisee or donee in tail pass in the course of the common law by virtue of such gift, grant, devise or conveyance. Under this statute, therefore, Earle N. Elsea, the only begotten heir of the first taker, was vested upon the death of his mother with an estate in fee in the land in question, and the attempted reversion over to the grant- or in the event of the death of the holder of the foe without issue, was of no effect. [Bone v. Tyrrell, 113 Mo. 175, 182; Tennison v. Walker, 190 S. W. (Mo.) 9, 11.] The grantor having died before the holder of the fee eliminates the reversion from consideration, but the attempted limitation over to defendants must for a like reason, viz: the vesting of the fee in Earle N. Elsea, also be held to be invalid. [King v. Theis, 199 S. W. (Mo.) 183; Gray v. Ward, 234 Mo. 291, 297.]

Section 2872, supra, is supplemented by another section which defines the manner in which the estate created by it shall vest, as follows: “Where a remainder shall be limited to the heir or heirs of the body, of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heir or heirs of the body of such tenant for life shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them.” [Sec. 2874, R. S. 1909.] This statute which effected the abolition of the rule in Shelley’s case removes from consideration any argument that may be adduced in favor of the existence of an executory interest after the vesting of the fee. Leaving o,ut of consideration, therefore, the rule as to the more strict construction to be given to deeds creating executory interests than to wills creating executory devises (Stallcup v. Cronley’s Tr., 117 Ky. 553), we hold that under the statutes cited, where land has been conveyed to a first taker for life with limitations over, that the fee created by law in the second taker cannot be cut down by a defeasance or executory interest, but upon the death of the first taker becomes absolute. Any limitation by construction upon the estate thus created, would destroy the purpose of.-the statute. An estate in fee having been created, a remainder cannot be limited thereon because the latter must have a particular estate to support it; any other limitation, whether it be in the nature of an executory interest or other defeasance, being inconsistent with the complete sovereignty of the owner of the fee over the land and his consequent unlimited right of alienation, cannot be attached to the estate and if attempted to be created, is void. [Gannon v. Albright, 183 Mo. 238, 252; 10 R. C. L., p. 648, sec. 3, n. 18.]

The holding as to the absolute fee of Earle N. Elsea renders unnecessary a discussion of the rule as to perpetuities as applicable to this case.

The insertion of the sentence in the deed at the time of its acknowledgment that the' guardian of Earle N. Elsea was to pay the taxes on the land, although inserted long after the delivery of the deed, in no wise affected its validity. It added nothing to nor took nothing from the conveyance; its presence ivas surplusage and its consideration is frivolous.

The care manifested by the trial court in the hearing and determination of this case merits commendation. Finding no error warranting reversal, the judgment is affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: WHITE, C.

license: Public Domain

text:
    M. J. HARRINGTON, Appellant, v. R. J. DUNHAM et al.
    Division Two,
    February 16, 1918.
    1. CONTRIBUTORY NEGLIGENCE: Crossing Street-Car Track: Presumption. Any person approaching a street car track has a right to presume that those operating cars on the track will exercise ordinary care to avoid striking any one who may be about to cross, and to act upon that presumption.
    2. —:--: -:--: Driver of Wagon. The driver of a wagon on a public street, whose view was obstructed by a power-house until his horses’ feet were on the street-car tracks which crossed the street, had a right to presume that the motorman would perform his duty to stop his car where a sign required him to stop and where it was customary for cars to stop; he had a right to act upon that presumption in approaching the track, and if there was nothing in the appearance of the car to indicate that it would not stop and he got upon the track before he discovered that the car would not stop, he was not guilty of contributory negligence as a matter of law.
    3. -: Question for Jury: Instruction. If the issue of the plaintiff’s negligence is one which under the evidence should be submitted to the jury, an instruction which in effect directs them to find for defendant should not be given.
    4. -: Instruction: Duty to Look and Listen: Superfluous. If the evidence is undisputed that the driver of the wagon, at the first opportunity after he passed the power-house which abutted on the cross street and obstructed his view, looked for a car and saw one coming, and under the law he had a right to presume that it would stop before it attempted to cross the street, as it was required by the rules to do and as cars customarily did, and acting on that presumption he drove on, an instruction defining his duty to look and listen is superfluous, and one making it his duty to “get off of the track and let the car pass” is erroneous.
    5. -: -: -: Must Be Caused of Injury. An instruction which directs the jury to find for defendant if they find he did not look or listen for the approaching car, without also requiring them-to find that he could have avoided the injury by looking, or by attempting to stop and clear the track after he saw the car, when he had the right to presume it would stop before attempting to cross, is erroneous
    6. -: Must Be Pleaded. The issue of contributory negligence is an affirmative defense, and the allegation asserting it should be as specific and direct as allegations- of negligence in the petition. An allegation that “if the plaintiff received any injuries at the time mentioned in said petition the same were caused by his own fault and negligence” pleads no specific act constituting contributory negligence, and will not authorize the submission of that issue to the jury.
    7. -: -: Instruction. And in view of such a plea, which in effect is no plea of contributory negligence at all, an instruction which requires the jury to find that “plaintiff himself was not negligent in any manner that contributed to the collision,” is erroneous.
    8. NEGLIGENCE: Instruction: Speed: Misleading: Misdirection: Withdrawing Issue. An instruction which tells the jury that “there is no evidence in this case that defendants were running the car in question at a negligent, careless or high rate of speed, and upon that issue your verdict will be for the defendant,” being an attempt to remove from the jury the issue of excessive speed, was erroneous for three reasons: first, it was ambiguous and misleading, in that it might be interpreted by the jury to mean that there was no issue before them as to whether the car was run at a careless rate of speed, or that in any event their verdict must be for defendant; second, it was confusing and a positive misdirection, in that it permitted two verdicts, one for defendant on that issue, and possibly another for plaintiff on other issues; and, third, it attempted to remove the issue of negligent speed from the jury, which was improper, since there was evidence that the car was running ten or twelve miles an hour at a point where the rules and safety required it to stop.
    9. -: Excessive Speed. It was a careless rate of speed for a street car to approach a safety stop where cars customarily stopped so fast that the motorman could not stop the car there, and to so run it that it must necessarily collide with any one who might happen to be on the track in the street at that place, unless such collision was caused by a “blowout of the overhead,” and whether it was so caused is a question for the jury where the evidence is conflicting.
    10. -: Instruction: Stopping Oar: Relieving Defendant of Ordinary-Care. An instruction telling the jury that the issue of the motorman’s duty to exercise ordinary care to stop the car, after he saw plaintiff in a position of peril, is withdrawn from their consideration, is error, where there is evidence tending to show that the motorman did not attempt to stop after he saw plaintiff’s peril, or other evidence that he pursued an improper method to stop if he made any attempt at all.
    11. -: Conflicting Instructions: Cure. Instructions for defendant which present a wrong theory of the case to the jury are not cured by a single correct instruction given for plaintiff.
    Appeal from Jackson Circuit Court. — Hon. Kimbrough Stone, Judge.
    Reversed and remanded.

      John D. Strother, Ingraham, Guthrie & Durham and Hale Houts for appellant.
    (1) The court erred in giving instructions “AA” and “2,” and each of them. These instructions withdrew from the consideration of the jury issues of negligence which plaintiff was entitled to submit, (a) By “AA” the court erroneously instructed the jury that defendants’ motorman was guilty of no negligence after he saw the plaintiff in a position of peril. This in effect told the jury that in determining whether or not the failure to stop at the safety was negligent, the jury could consider nothing the motorman did or failed to do after he saw the plaintiff in a position of peril; thereby withdrawing many acts of negligence of which there was ample evidence. Laison v. Transit Co., 192 Mo. 449. (b) The court erred in telling the jury in instruction “2 ” that there was no evidence that the car was being operated at a negligent; or careless speed. Even had there been no evidence of the rate of speed, the fact that the car crashed by the stop into plaintiff and carried the outfit to the far edge of the road, despite the motorman’s efforts to stop, made the issue one for the jury. Heinzle v. Metropolitan, 182 Mo. 528; Beier v. Transit Co., 197 Mo. 215; Felver v. Met. St. Ry. Co.,. 216 Mo. 214; Brandt v. Railway Co., 153 Mo. App. 16, (c) From the undisputed evidence either one of two conclusions is irresistible, first, that the car was going too fast, or, second, that the motorman was negligent after he saw plaintiff in a place of peril. The motorman admitted that he knew of the safety stop, knew the track, was intending to make the stop, could see the crossing for 500 feet, and that plaintiff’s horses came out from behind the power house upon the tracks before he began to use the appliances at hand to make the safety stop. Certainly, if the rate of speed of the car had not been negligent and the motorman had exercised ordinary care in the use of brakes and other appliances the safety stop. would have been made. (2) The giving of defendants’ instructions 4 and 6, constituted reversible error, for the reason they too broadly defined the? issue of contributory negligence by the use of the words “any negligence” and “negligent in any manner.” Benjamin w Metropolitan, 245 Mo. 612; Williams v. Lamp Co., 173 Mo. App. 87; Miller v. Engle, 185 Mo. App. 580. (3) It was error to give instructions 5 (modified) and 8, for the reason that in these instructions the court ignored the safety stop custom and the right of plaintiff to presume that the custom would be observed. Pereell v. Met. St. Ry. Co., 126 Mo. App. 43; Soott v. Met. St. Ry. Co., 138 Mo. App. 196; Riska v. Railroad, 180 Mo. 168, 190; Eckhard v. Transit Co., 190 Mo. 593, 617; Moon v. Transit Co., 237 Mo. 425; Taylor v. Met. St. Ry. Co., 166 Mo. App. 131. (4) Instruction 8 was also erroneous for the reason that it failed to require the jury to find that the plaintiff’s negligence therein submitted; if they should find any, was the proximate contributing cause of his injury. Oats v. Met. St. Ry. Co., 168 Mo. 535, 548; Grail v. Car Co., 177 Mo. 427. (5) The instructions of defendant when read together amounted in effect to a peremptory instruction to find for defendants.

      Clyde Taylor and L. T. Dryden for respondents.
    (1) Instruction “AA,” given by the court of its own motion, told the jury that the alleged negligent act of failing to give signals was withdrawn from their consideration as a ground of recovery. There are two reasons why this was proper, (a) There was no evidence of a failure to give the signals as the car approached the street, (b) Had no signals been given it would have made no difference and such failure would not have been the proximate cause, for the reason that appellant saw the car and knew of its approach; but as lie said relied entirely upon the custom to stop the car before crossing the street road. A negligent act affords no ground of recovery unless it is the proximate cause of the injury. Jackson v. Butler, 249 Mo. 342; Strayer v. Railway, 170 Mo. App. 514;, Heinzle v. Railway, 182 Mo. 528; Lyman v. Dale, 156 Mo. App. 427; O’Connell v. Railway, 149 Mo. App. 501; Hull v. Transfer Co., 135 Mo. App. 119. (2) The appellant cites but one case in support of his criticism of this point. Latsin v. Transit Co., 192 Mo. 449. This case is not in point at all, and in that case the plaintiff was driving; along the track a distance of 469 feet in plain view of the motorman, and vehicles going in the opposite direction prevented the plaintiff in that case from getting off the track, and the motorman had but to look to see the situation. While in the case at har, the plaintiff testified that his horses came upon the track when the car was just south of the power-house, and close to him, and then whipped his horses up, attempting to go on across the track. The motorman testified that as soon as he saw the horses’ heads appear on the track, he attempted to stop the car, and put on the airbrake, but he saw it was not going to stop on account of the rail being slick, and it being down-grade, and then he released the air and reversed, and then had an overhead blowout. The evidence in the case corroborated the motorman and showed that the collision was unavoidable so far as he was concerned, and due to this overhead blowout, and also to the contributory negligence of the appellant in driving his team on or across the track when he saw the car close to him, -when by stopping he could have avoided the collision. (3) There was no evidence whatever that the ear was being operated at a careless or high rate of speed. This being one of the distinct acts of negligence alleged in plaintiff’s petition, and there being no evidence of any kind or character to support it, it was the duty of the trial court, upon motion of defendant, to eliminate this ground of recovery from the consideration of the jury, which he did. (4) But had there been evidence that the car was being operated at a high rate of speed, in order that it might be the proximate cause of the accident, it would have to be shown that the appellant had knowledge of the regular and ordinary rate of speed of the car, and that he relied upon the car being operated at this rate and was thereby entrapped or deceived into driving upon the track. See authorities above cited. (5) All the instructions in a case must be read together, and if when so read as a whole they fairly present the issue, this is sufficient. This is clearly true in this case, as will be shown by reference to several instructions given in the case. The evidence showed that appellant was negligent in attempting to cross the track in front of the car, relying wholly and entirely upon the safety stop. The case was tried and submitted upon this theory. (6) Instructions 5 and 8 pointed out the negligent acts of appellant, if the jury believed from the evidence him to be guilty of such acts as would preclude a recovery. So that the particular acts of negligence upon the part of the appellant were clearly and properly set forth in these instructions, and when all the instructions arc read together, they surely could not have been misled. Hoover v. Coal Co., 160 Mo. App. 326; Wilson v. United Rys., 169 Mo. App. 405; Jackson v. Telegraph Co., 174 Mo. App. 70; Patterson v. Evans, 254 Mo. 293; Tawney v. United Rys., 262 Mo. 602; Barrett v. Delano, 187 Mo. App. 501; Evers v. Ferry Co., 127 Mo. App. 236; Batten'v. Modern Woodmen, 111 S. W. 513. (7) It was plaintiff’s duty to look and listen, and it was for the jury to* determine the question of fact. Products Co. v. United Rys., 185 Mo. App. 310; Burnham v. Railroad, 175 Mo. App. 286; Cole v. Met. St. Ry. Co., 121»Mo. App. 605; Owens v. Railway, 188 Mo. App. 450; Huggart v. Mo. Pac., 134 Mo. 673; Kelsay v. Mo. Pac., 129 Mo. 362; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566. (8) Instruction 8 states the acts of the appellant, which, if the jury believe to be true, would amount to such negligence upon his part as to prevent a recovery. If any error was committed in this case by the trial court, it was in overruling respondents’ demurrer to all the evidence, because appellant’s own testimony showed himself guilty of such negligence as to prevent a recovery in the case. Schmelzer v. Metropolitan, 166 Mo. App. 204; Guffey v. Harvey, 179 S. W. 729; Byerley v. Metropolitan, 172 Mo. App. 470; Products Co. v. United Rys., 185 Mo. App. 310; Burnham v. Railway, 175 Mo. App. 286; Cole v. Met. St. Ry. Co., 121 Mo. App. 605; Owens v. Railway, 188 Mo. App. 450; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Kelsay ’v. Railroad, 129 Mo. 362.
   WHITE, C.

The plaintiff sued for injuries received by collision with a street car operated by defendants. There was a verdict for the defendants and the plaintiff appealed.

' The place where the collision occurred was at the intersection of Blue Avenue and the defendant’s street railway tracks at a point between Kansas City and Independence. At that point Blue Avenue runs practically east and west, and two parallel street-car tracks cross it running north and south. Blue Avenue was a hundred feet wide, with a macad'amed track down the centre twenty-six feet wide. Along the east side of the streetcar tracks, and on the south side of Blue Avenue, was situated the power-house of the street-car company, sixty-six feet in length north and south, and thirty-three feet wide east and west.

The west side of the power-house was about six feet east of the east rail of the east track, and the north front of the power-house, being fifty feet from the centre of the avenue, was about flush with its south line. About half way between the northwest corner of the powerhouse and the centre of the street was a pole, on which was posted in large letters, “STOP.” This was called a safety stop, and indicated that cars going north were required to stop at that point before crossing the street. The collision occurred where the east track crosses the macadam portion of the avenue, after the colliding car had passed this safety stop.

The evidence shows that the plaintiff was driving a heavily-loaded moving van westward along the centre of the avenue upon the macadam portion of it. He sat upon a seat in the front part of the van, so that his view was unobstructed by his load. He testified that before he got to where the power-house shut off his view he looked south to see if a car was approaching from that direction, and saw none. He then drove on until the power-house obstructed his view to the south, so that he could not see an approaching car until he' had cleared the power-house. He then looked south and saw a car coming from that direction, a little beyond the south end of the power-house. There was nothing in the appearance of the car, he said, to indicate it would not stop at the safety stop according to custom. He was well on the track before he discovered that the ear was not going to stop, and then he endeavored to get ont of the way, but the car struck his wagon and caused serious injuries, for which he brought the suit.

Several witnesses testified that it was the custom of the north-bound cars to stop before crossing the street at that' point, in obedience to the sign indicated by the safety stop. Defendants offered no evidence to controvert them, though they did contend that the place was a regular stopping place to receive and discharge passengers. Plaintiff’s evidence tended to show the stops were regularly made there when no passengers got on or off. It further shows, and it is conceded by defendants, that in approaching the street-car tracks from the east, at a certain distance from the tracks the power-house shut off the view of the tracks to the south ''and a person could not see them again until quite close to the track. The distance from the track where the view is first shut off in that way was stated by the defendants’ engineer to be fifty-five feet. Then from the time the view of the plaintiff approaching from the east would be cut off by the power-house until he got past it, so that he could look up the track, was such that a car would have time to come a considerable distance.

Some witnesses swore that there were two men in the motorman’s box at the time, and one seemed to be teaching the other how to run the car. The motorman swore, and the defendants produced some corroborating evidence to show, that he attempted to stop the car according to custom when “the overhead blew out,” so that he could not control his car. There was considerable evidence contradicting his statement' — evidence which tended to show that he made no attempt to stop until the wagon was upon the track. His evidence indicates that he didn’t take the proper precaution to make the regular stop, and could not have made it in any event after he began the attempt, and only used his emergency expedient of reversing the power after he saw that he was likely to strike the plaintiff at a point in the street fifty feet north of where he should have made the safety stop. Respondents do not seriously question that there was sufficient evidence for the jury-tending to show the custom to stop in obedience to the safety stop sign, and whether or not defendants were negligent in that regard was submitted to the jury by appropriate instruction.

I. Since appellant claims that erroneous instructions were given relating to contributory negligence it will be necessary to consider more closely the facts upon which those instructions bear.

Plaintiff testified that as he approached from the east, before he got near the power-house and when he was at a point where he could see the tracks southward beyond it, he looked in that direction and saw no car. He drove on and the power-house shut off his view of the track until he was so close to it that his horses already were stepping upon it; then he looked southward and saw the-car approaching a little beyond-the south end of the power-house. The measurement of distances by witnesses for both the plaintiff and the defendant corroborated that statement, and they show that his horses would have to be about on the track before the driver sitting on the wagon could see past the power-house to the distance where the car was coming. The plaintiff then says he went ahead, supposing the car would make the usual stop; and when he found out, by the time the car had reached the stopping place, that it wasn’t going'to stop, he “whipped up,” did the best he could to get off the track, and threw up his hand for the motorman to stop. The testimony varied as to where the wagon was struck; some witnesses testified that it was struck about the front wheels and plaintiff testified it was struck about the centre of the back wheels. The wagon and team were carried to the north side of the avenue, a distance of from thirty to forty-five feet, and thrown off to the west side of the track.

Plaintiff’s testimony indicates that he saw nothing in the attitude of the motorman, nor in the way the car was coming, to indicate that it would not stop at the usual place, until it was too late to escape the collision. Having knowledge of the custom, he had a right to presume the usual stop would be made, and if, acting upon that presumption, he used ordinary care for his own safety, he could not be nonsuited on account of his own negligence. After giving him the benefit of the presumption mentioned, whether, under the circumstances indicated, he was guilty of contributory negligence was a question for the jury, under numerous authorities in this State, if that issue was raised by the pleading.

The rule is that any person approaching a street car track has a right to presume that those operating* cars on the track will exercise ordinary care to avoid injuring anyone who may be about to cross, and has a right .to act upon that presumption. The case of Moon v. St. Louis Transit Co., 237 Mo. 425, is where the plaintiff was struck by a car and injured while crossing the street-car track in a carriage. In describing the driver’s approach to the track the opinion says (p. 430):

“When his horses got about eight feet from the track, he being about twenty feet therefrom, he saw a car coming from the south, he thought, about 15Q or 160 feet away. He judged he could cross safely, but when his horses were about three feet from the track he saw that 'the car was coming much faster than he at first thought and he then whipped up. The carriage was struck on the rear hub. The driver testified that the car was going about three times as fast as the carriage at the time he was struck, and that he could have stopped the carriage in a distance of from eight to ten feet.”

The court then, in commenting upon this evidence, said (pp. 433-4):

“But that is not all, the evidence for appellant further tended to show that the driver did not realize or discover that the car was running in excess of the ordinance speed, until the team was within three feet of the track, which fact made it impossible for him to have stopped in time to have avoided the collision if he could not have stopped the team under eight or ten feet, as the evidence tended to show; and until he discovered the speed of the car, the driver had the right to presume and to rely upon the presumption that the car teas not running in excess of the speed prescribed by the ordinance. If the speed of the car had not exceeded that fixed by ordinance, then clearly under the evidence in this case the collision would not have occurred.”

It is impossible to see the difference in principle between that case and this. There the plaintiff had a right to presume that the street car employees would keep within the speed limit; he couldn’t tell that they were exceeding the speed limit, and counting upon the presumption he drove upon the track and would have got across safely except for the excessive speed of the car, and it was held that he was not guilty of contributory negligence as a matter of law.

In the case of Eckhard v. St. Louis Transit Co., 190 Mo. 593, a man was killed while crossing the street car track, and the question of whether he was guilty of contributory negligence in going upon the track was an issue; the defendant’s alleged negligence was running beyond the speed limited by ordinance. The court says on page 617:

“The deceased had the right, as said in the Riska case, to presume that the car was not moving at a greater rate of speed than that prescribed by ordinance, and acting upon this presumption, had the car been running at the speed he had the right to presume it was, there was reasonably sufficient time for him to cross the track in safety, it was not contributory negligence for him to attempt to do so. ”

The Riska case referred to there is Riska v. Union Depot Railroad Co., 180 Mo. 168. This court, in that case, says at page 191:

“But, where the law, as in the case at bar, regulates the speed of cars, every pedestrian has the right to presume, in the absence of evidence to the contrary, that they will not be run in violation of it and to gauge his movements accordingly.”

The Kansas City Court of Appeals has decided a case in which the facts are almost exactly the same as the facts here. [Percell v. Railroad, 126 Mo. App. 43.] That is where the plaintiff was driving towards the street car track with the intention of crossing it when he saw a car approaching on the track, but he knew there was a custom to stop the car before crossing the street on which he was driving. The car, however, did not stop, collided with him and injured him. The question of whether he was guilty of contributory negligence in driving upon the track was before the court and the court said (page 51):

“But a traveler has the right to presume that the operator of approaching trains or cars are exercising and will continue to exercise reasonable care in approaching a crossing. And, while this presumption does not absolve him from the duty of using his senses for his own protection, still, where the appearances disclosed to reasonable observation do not indicate the presence of negligence, he has the right to continue to indulge in the presumption stated and to act thereon.”

And further the court said (page 52):

“With nothing in the appearance of the train to disclose that it was beyond control, and with every reason to think it would stop at the accustomed place, it was not negligence per se for plaintiff, who, under the conditions presumed, had abundant time to clear the crossing, momentarily to withdraw his eyes from the train.”

Italics in all above quotations are the writer’s.

Under these authorities, if they are to be followed in this case, the plaintiff had a right to presume that the defendant’s motorman would perform his duty, would stop where he was ordered to stop and where it was customary to have cars stop. He had a right to act upon that presumption and, if there was nothing in the appearance of the car to indicate that it would not stop there and he got upon the. track before he discovered that it would not stop, he was not guilty of contributory negligence as a matter of law.

The circuit court, on the issue of contributory negligence, gave instructions on behalf of the defendants as follows:

“5. The court instructs the jury that it was the duty of the plaintiff before he drove upon or so close to the track in question as to be in danger of being-struck by a passing car, to look and listen for cars running thereon, and that this duty was a continuous one from the time he got upon said track or so near thereto as to be in danger of being struck by a passing car until after he got off of the same, and if he saw or knew the car was approaching it was his duty to get off the track and let the car pass, and if you believe from the evidence that the plaintiff did not look or listen for approaching cars before he went upon said track, or that he did not continue to so look and listen, and by so doing he could have seen or heard the approaching car and been apprised that it would not stop before crossing said highway in time to have avoided said collision, then you are instructed that his injuries, if any, were caused from his own fault or negligence, and your verdict must be for the defendants.
“8. The court instructs the jury that if you find and believe from the evidence that plaintiff as he approached the track, if he had looked he could have seen the car approaching, or if he had listened could have heard the ear -approaching, and that he drove upon the track without looking, or if he did look, without heeding what he saw, and without listening, or without heeding what he heard, then plaintiff is not entitled to recover and your verdict must be for the defendants.”

These instructions are in effect directions to find for the defendants at all events. If the issue of plaintiff’s negligence could be submitted to the jury at all these instructions should not have been given. This laying down of his duty in Instruction Number 5 was entirely superfluous, because the evidence is undisputed that he did look and that he saw the car coming; that he presumed it' would stop at the usual place and he drove on acting upon that presumption. That being the case there was no issue of fact as to whether he looked. The instruction required him to “get off the track and let the car pass,” whether it was possible to get off or not. It was his duty to use ordinary care to avoid injury and to discover whether the car would or would not stop at the usual place.

After thus defining plaintiff’s duty the court presents Instruction Number 8 which tells the jury if they found “that he drove upon the track without looking, or if he did look without heeding what he saw” . . . then he was not entitled to recover. That is to say, if he drove upon the track without stopping — if he saw the car coming and still drove upon the track, he could not recover. This, in the face of the rule, that he would not necessarily be negligent' in driving upon the track under the circumstances as shown here.

Instruction Number 8 also authorizes the jury to render a verdict for defendants if plaintiff was negligent, although his negligence did not in any manner contribute to his injury. That is, it directs the jury to find for the defendants if the plaintiff failed to look or failed to heed what he saw, although they are not required to find that he could have avoided the injury by looking, or by attempting to stop or clear the track after he saw the car. The evidence indicates that after he became aware of danger he was unable to escape it by getting off the track in time.

These instructions are erroneous for another reason, and that is the answer does not plead the acts of negligence hypothesized in them. The contributory negligence pleaded in the answer is as follows:

“If the plaintiff received any injuries at the time mentioned in said petition the same were caused by the plaintiff’s- own fault and negligence.”

This is no sufficient allegation to authorize a submission of the issue to the jury, as will he seen as we consider the next instruction in order, given for defendants, which is as follows:

6. The court instructs the jury that before plaintiff' can recover in this case, it devolves upon him to prove, by a preponderance of the evidence, that defendants were negligent, yet before you can find for the plaintiff, you must also further find and believe from the eyidenee that plaintiff himself was not negligent in any manner that contributed to the collision between the street ear and plaintiff’s wagon, and unless you -so find and believe, plaintiff cannot recover and your verdict must be for the defendants.”

That form of instruction has been condemned by this court in a case similar to this, in Benjamin v. Railroad, 245 Mo. 598. The instruction happened to be Number 6, and is found on page 612.

The pleading as set out above in the answer is word for word the plea of contributory negligence in the Benjamin case- (page 614), and the court there held an instruction was erroneous which authorized a verdict for the defendant, “if plaintiff was guilty of negligence of any character which directly contributed to his injury.” It was held that the issue of contributory negligence was an affirmative defense, that the statement of the answer did not allege any specific act which constituted such negligence, and that the allegation of contributory negligence should be as specific and direct as • allegations of negligence in the petition, and therefore, it was not pleaded at all. The instruction authorized a verdict for the defendant if plaintiff was guilty of any negligence of any kind or character, whether pleaded or -not, and was, therefore, erroneous. If that case is to be followed, the giving of instruction number 6 here was error.

The St. Louis Court of Appeals has followed the Benjamin case in the case of Williams v. Lamp Co., 173 Mo. App. 87, l. c. 97, where it was held that the acts constituting contributory negligence must be pleaded, and an instruction like the one under consideration was disapproved. The Kansas City Court of Appeals likewise has reached the same conclusion in the case of Miller v. Engle, 185 Mo. App. 588, l. c. 580, where the court denounced a similar instruction calling it “merely an abstract instruction on contributory negligence” and held it was erroneous because it did not “point out in anyway what acts would constitute eon-tributary negligence.” The answer here, under those authorities, fails to plead contributory negligence, and therefore, there was no question for the jury on that issue. [Taylor v. Met. Street Railway Co., 256 Mo. l. c. 216; White v. Railroad, 250 Mo. l. c. 482; Collett v. Kuhlman, 243 Mo. l. c. 591.]

II. The court also gave for defendants instruction numbered 2, as follows:

“2. The court instructs the jury that there is no evidence in this case that defendants were running the car in question at a negligent, careless or high ra-te of speed, and upon that issue your verdict will be for the defendants.”

This instruction is ambiguous. It is an attempt to remove from the jury the issue of excessive speed. It might be interpreted to mean that there was no issue before them as to whether the car was run at a careless rate of speed; or, it might be interpreted to' mean that upon that issue the verdict must be for the defendants in all events. That is, it might mean that in .any event the verdict' must be for the defendant on account of that issue being in the case. Juries cannot be presumed to weigh nicely the significance of obscure language and a jury very easily could be misled by this instruction in the way indicated.

Furthermore, the instruction is erroneous because it has a positive misdirection. The jury are told to render a verdict for defendant on that issue, whatever they might do on other issues; they could give two verdicts, one verdict for the defendant on that issue and possibly a verdict for the plaintiff on other issues. The best that can be said of the instruction is that it is hopelessly confusing.

Furthermore, it was improper for the court to tell the jury that there was no negligent rate of speed and remove that issue entirely from their consideration. The evidence shows the car was running at the rate of ten or twelve miles an hour. Whether or not that was a careless rate of speed depended upon the circumstances. If the speed was that rate after the defendant’s car was so close to the safety stop that it conld not he stopped at that point, then it was a negligent rate of speed. The evidence of the motorman himself shows that he conld not stop at that point because he did not have the car sufficiently under his control; it shows that he was going at a rate of speed which necessarily carried him beyond it, and caused him to use his emergency reverse in his attempt to avoid hitting, the plaintiff’s wagon at a point fifty feet beyond where the car should have stopped. It was a careless rate of speed for the motorman to approach the safety stop so fast that he could not stop there and to run so that necessarily he must collide there with anybody who might happen to he upon the track in the 'street, unless such collision was caused by the blowout of the overhead, which was a question of fact for the jury. There was considerable evidence tending to show that the motorman was teaching a new man to run the car and was not paying attention so as to keep within proper speed at that point.

This court has said in the case of Beier v. St. Louis Transit Co., 197 Mo. 215, that the rate of speed at which' a car may be going may be negligent or not, according to the circumstances, and in that case the direct evidence indicated that the car which caused the injury was running at no greater rate of speed than the evidence shows the car was running here. It did not matter whether it was within the speed limit or not. In that case the court says (page 230): “In other words, unlawful speed may be one thing and negligent speed may be another.” The positive speed of the car does not necessarily determine whether it is negligent or not, as indicated by the St. Louis Court of Appeals in case of Brandt v. United Rys. Co., 153 Mo. App. 16. In that case the court said (pages 22-3): “In the present case, though the evidence conclusively shows, the ear was not operated to exceed twelve miles an hour, an element of liability may appear against defendant notwithstanding the ordinance [which permitted that rate], if other facts and circumstances in proof suggest such a rate of speed to .have been careless. ’ ’

III. Plaihtiff objected and excepted to the giving of the following instruction:

£<AA. The court instructs the jury that issues of the alleged lack of giving signals, and the alleged failure, in the exercise of ordinary care, to stop the car after defendant’s motorman / saw plaintiff in a position of peril, are withdrawn-from your consideration, and no finding can be made for the plaintiff upon either ground.”

This instruction was given on the court’s own motion. By this instruction the motorman is relieved from exercising ordinary care after he saw plaintiff’s peril, although the plaintiff was not guilty of any negligence whatever. There was evidence tending to show he did not attempt to stop after he saw the peril, and other testimony to- show he pursued an improper method in his attempt if he did attempt to stop.

It is evident the motorman in approaching the crossing could have seem the heads of plaintiff’s horses before plaintiff could see the car past the corner of the power-house. The plaintiff probably sat twelve or fourteen feet back of his hoises ’ heads. The motorman was not more than six or seven feet from the western edge of his car. After the heads of the horses appeared to the motorman’s view, plaintiff would travel six or eight feet before he could see the car. The car probably was running about four times as fast as the wagon, so that the car must have run twenty-five or thirty feet after the motorman could see the peril of the plaintiff before plaintiff could see the car. The motorman testified: “When I got right at the south end of the powerhouse I see the horses stick their heads past thp end of the building. ’ ’

At that moment he must have known that plaintiff could not see his car and was likely to drive upon the track. This instruction tells the jury that the motorman after'that was under no obligation whatever to try to stop Ms car-and avoid the collision. It was, therefore, erroneous.

These instructions as a whole present a wrong theory to the jury and do violence to any rational view of the case. And none of them was cured by the single instruction given for plaintiff which was solely on the issue of whether the defendant was negligent in failing to observe the custom and stop at the safety stop.

The judgment is reversed and the cause remanded.

Roy, C., concurs.

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

All of the judges concur.