text:
    J. W. CHILTON et al., Appellants, v. SEBASTIANNI COMANIANNI et al.
    Division Two,
    June 29, 1909.
    1. ADVERSE POSSESSION: When Not Question for Jury. Ordinarily adverse possession is a question of fact for the determination of the jury; but where the paper title is clearly in the plaintiffs, and the evidence to establish such possession in defendants as the law requires to divest the title of the true owner, is wholly insufficient, it is the duty of the court to declare as a matter of law that it is insufficient, and to direct a verdict for plaintiffs.
    2. -: Paying Taxes, Etc. Paying taxes on the land, and having an agent to look after trespassers and the timber on the land, is evidence of a claim of ownership, but not of adverse possession.
    2. -: Cutting Timber. A contract by which defendant sold to third parties the timber on the land and under which within two or three years they removed the timber and wood, but did nothing more, is not sufficient to establish adverse possession in defendant.
    4. -: License. The permitting of a woman to live in a cabin on the timber land for three years without paying rent, and the cultivation by her of a garden spot thereon, she being neither a tenant nor a lessee, and the house having been built by a trespasser, does not tend to establish adverse possession; especially, where the claimant knew nothing about her occupancy of the house until after she had vacated it.
    Appeal from Shannon Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed {with directions).

      J. W. Chilton and James Orchard for appellants.
    (1) A deed made by a grantor who has previously sold the same land by deed which has been recorded before the execution of such second deed, is an absolute nullity and conveys no title. This is A B C law and needs the citation of no authorities to support it. Where, in á tax suit, service of process is had only by order of publication against the record owner of land by the initial letters of his name (the land standing of record in his full Christian name), the court acquires no jurisdiction of such defendant, the judgment is void, and a-deed founded thereupon is likewise void and conveys no title to the purchaser. Spore v. Ozark Land Co., 186 Mo. 656; Vincent v. Means, 184 Mo. 329; Evarts v. Mo. Lbr. and Mining Co., 92 S. W. 372; Turner v. Gregory, 151 Mo'. 100. "(2) Adverse possession, under color of title, in order to ripen into title under the ten-year limitation statute, must have been actual, open, notorious, exclusive, adverse, hostile and continuous in the claimant or those under whom he claims, as against the true owner, for a period of ten consecutive years. A hiatus in the possession will • stop the statute. Dalby v. Snuffer, 57 Mo. 294; St. Louis v. Priest, 103 Mo. 655 ; Brown v: Hartford, 173 Mo. 183; Sedgwick & Wait, Trials, sec. 729; Nye v. Alfter, 127 Mo. 529. (3) To sustain the affirmative plea of the thirty-year Statute of Limitations (See. 4268, R. S. 1899), the following (among other things), must be proved by the party asserting and relying upon such plea, to-wit: 1. The premises must not have been in the possession of the true owner nor any one under whom he claims for thirty consecutive years. 2. No taxes must have been paid on the land by the true owner nor by any one under whom he claims, for thirty consecutive years. 3. The original owner must have failed to bring his action within one year succeeding the thirty-year period referred to.
      4. The pleader must have been in lawful possession of the land one year after the expiration of the thirty-year period referred to. Fairbanks v. Long, 91 Mo. 633; Rollins v. McIntyre, 87 Mo. 515. Payment of taxes, cutting of timber and keeping off of trespassers are acts not of themselves ordinarily sufficient to constitute actual possession within the meaning of the law, especially in the absence of actual notice to the true owner. Pharis v. Jones, 122 Mo. 131; Nye v. Alfter, 127 Mo. 529. (4) When the verdict of a jury is unsupported by evidence, or is the result of erroneous instructions from the court, this court will set aside or reverse a judgment founded thereupon. Mosris v. Barnes, 35 Mo. 412; Pipkin v. Allen, 24 Mo. 520 ; Robbins v. Phillips, 68 Mo. 100.

      A. E. McGlashan for respondents.
    (1) The instructions of the court correctly declared the law as to what constitutes possession. Draper v. Shoot, 25 Mo. 203; Leeper v. Baker, 68 Mo. 400; Fugate v. Pierce, 49 Mo. 441; Turner v. Hall, 60 Mo. 271; Mississippi Co. v. Yowels, 101 Mo. 225; Cook v. Farrah, 105 Mo. 493; Goltermann v. Schiermeyer, 111 Mo. 405, 125 Mo. 302; Brown v. Hartford, 173 Mo. 183. (2) The evidence is sufficient to sustain the verdict of the jury and the judgment of the court. (3) The thirty-year Statute of Limitation, sec. 4268, applies. The defendant proved: (a) That neither plaintiffs nor those under whom they claim had ever been in the possession of the land, (b) That neither plaintiffs nor those under whom they claim had paid any taxes on the land since 1869. (e) That after the expiration of the thirty-year period prescribed by the statute, defendant under color of title and claim of ownership entered into the possession of the land and remained in the possession thereof for more than one year, (d) That plaintiffs failed to bring this action within one year after the termination of the thirty-year period and within one year after the possession of the land by the defendant. (4) The possession of the land by Wood and Stewart, while cutting the timber, was the possession of defendant. Tiedeman on Eeal Property (2 Ed.), chap. 20, sec. ,692, p. 642; Holladay-KLotz L. So L. Co. v. Markham and Duckett, 96 Mo. App. 51. (5) The land was not susceptible of a more strict and definite possession and was so found by the jury. (6) Possession of part of the tract, under color of title, is possession of the whole tract. Sec. 4266, R. S. 1899. (7) A less weight of evidence is necessary to support the claim of title by adverse possession where the entry is with color of title, than where it is not. Draper v. Shoot, 25 Mo. 202. (8) The appellate court, in determining whether the evidence is sufficient to support a verdict, will assume that the evidence is true and will give it every favorable inference which may be reasonably drawn from it. James v. Life Assn.,' 148 Mo. 16. (9) It is not enough that there is an insufficiency of evidence; a case- will not be reversed on the ground of lack of evidence unless there is no evidence tending to establish the facts found by the jury. Smith v. Royse, 165 Mo. 658; James v. Life Assn., 148 Mo. 16; State v. Fischer, 124 Mo. 462.
   GANTT, P. J.

This is an action, to determine and quiet the title to the south half of section five in township 30, range 4, west, in Shannon county and containing three hundred and twenty acres.

The suit is brought under section 650, Revised Statutes 1899', and was begun March 29, 1904. At the September term, 1904, of said court, judgment was rendered in favor of the plaintiffs and against the defendant by default, and at the Mwch term, 1905, of said court, said judgment was set aside on petition for review and the defendant was permitted to file an answer and make defense. On November 30, 1905, the canse was tried in the circuit court of said county before a jury, and judgment was rendered for the defendant. In due form the plaintiffs have appealed from the judgment and decree. In his answer the defendant admitted that he claimed to be the owner of said land and denied the other allegations in the petition. He then set up that he had actual possession of .the said lands for ten years and then pleaded the thirty-year Statute of Limitations against the plaintiffs. The reply denied all the new matter set up in the answer.

To sustain the issues upon his part, the plaintiffs offered in evidence a patent in due form from the United States to Joshua Spencer dated September 1, 1859, recorded April 13, 1873, in book 1, page 795, to the lands in controversy. Plaintiffs next introduced in evidence a warranty deed in due form from Joshua Spencer and wife to Joseph N. Boyce, dated August 1, 1860, duly recorded September 3, 1869, in recorder’s office of said county. Plaintiffs then introduced a warranty deed in due form from Joseph N. Boyce and wife to Daniel B. Dyer of date September 15,1869, recorded September 29, 1869, and re-recorded March 25, 1873. Plaintiffs then introduced a quitclaim deed from Daniel Dyer, a single man, to J. W. Chilton, to an undivided one-half of the said land, dated March 21,1904, recorded March 31,1905.. Plaintiffs then rested.

Defendants on their part offered in evidence a warranty deed in due form from Joshua Spencer to William E. D. March, dated January 2, 1875, recorded November 21, 1877, to the introduction of which the plaintiffs duly excepted at the time for the reason that the grantor had previously conveyed all his rights, title and interest in said land to Joseph Boyce by warranty deed. Defendant then introduced a deed from March and wife to Amos Bissel dated May 6, 1876, recorded November 21, 1877, to the introduction of which the plaintiffs interposed the same objection, which being overruled by the court they duly excepted. Defendants then introduced a warranty deed from Bissel to Matheny of date June 1, 1876, recorded November 21, 1877, to the introduction of which plaintiffs objected for the reason that there was no title in the grantor to said deed. Defendants then introduced a warranty deed from Luther T. Matheny to William T. Ingram of date August 18, 1876, and recorded November 21,1877, to the introduction of which the plaintiffs objected because it Was shown that said Matheny never had any title to said iand. Defendants then introduced a mortgage by William R. Ingram and wife to Thomas M. Heard of date December 8, 1880,'to secure the sum of $1,800’, to the introduction of which a like objection was made. Defendants then introduced a release from Heard to William R. Ingram of date July 3, 1882, of the said mortgage debt. Defendants then introduced in evidence a warranty deed from William T. Ingram and wife to the defendant Comanianni of date June 22, 1895, recorded June 25, 1895, to the introduction of which plaintiffs objected for the reason that the said Ingram had no title to said land to convey. Defendants then introduced a sheriff’s deed for taxes by George F. Chilton, sheriff, under a judgment in November, 1878, for taxes against Joshua Spencer, D. B. Dyer, William T. Ingram, said deed being dated May 1, 1879, recorded May 21, 1879, conveying the land in question to William T. Ingram, to the introduction of which plaintiffs objected at the time on the ground that the court had no jurisdiction over the person of the defendant Daniel B. Dyer and that no suit had been instituted or prosecuted against said Dyer.

The defendant then introduced in evidence the deposition of William T. Ingram, who testified that he was seventy-five years old and resided in Murphysboro, Illinois. He testified that he had known the defendant Comanianni about fifteen years; that witness had bought the land in suit from Matheny in 1876, and bought the same in at a tax sale in 1879. He testified that he paid taxes on the land in 1877 and from the year 1879 down to the time he sold it to Comanianni, he could not state what amount he paid out in taxes as he had no means of approximation, but supposed it was something like $300, more or less. Asked what acts of ownership he exercised over the land while he owned it, he answered, “Paying taxes and having men to look after the land and timber.” That he had never had the land surveyed. He went on the land once in 1895; that he had an agent to look after it for him in the person of Mr. Carpenter, a farmer living on the public road running from Eminence to Salem, about two miles from the land. Carpenter consented that a Mr. Wood could build a log house on the land sometime in the eighties; this house was the first improvement ever made on the land to his knowledge. He testified that plaintiff Dyer never occupied the land to his knowledge; that it was wild timber land. There was about one-third of an acre of land across the creek from where the house was built that was susceptible of cultivation, and he gave his consent to the men farming the adjoining land to use this cultivating land. He testified he let it sell for taxes because he could buy it in at a tax sale for less money than to pay the amount of taxes assessed against it, and Dyer had a claim of title by his1 deed of record. All this evidence, was objected to on the ground that it was irrelevant and immaterial and did not tend to prove any issue in the case.

The defendant Comanianni testified that he was forty-nine years old, a coal miner and lived in Murphysboro, Illinois; that he bought the land from Ingram in 1895, and paid the taxes, from that day up to the bringing of this suit. That the taxes averaged about nine dollars per year. He was asked what acts of ownership he exercised over the land after he bought it, and testified that he was on the land twice and gave orders what to do; had some timber cut on it; he gave Mr. Stewart money to have it surveyed in November, 1902; he was on the land in 1900 and in 1902, the only improvements on the land was a small log-house and about one acre cleared. After he bought the land, he allowed Mrs. Woods to occupy the house. He sold Mr. Woods and Stewart all the tie timber on the land. He did not recollect whether they asked permission to stay in the house, but he afterwards learned that.they occupied the house. He had no objection. He supposed that Mrs. Woods went into the house about the time they began to cut the timber.

A. E. McGrlashan testified that he had examined the tax records in regard to this land and the assessor’s books showed that the land had been assessed to William T. Ingram as far back as 1895, except in the last few years, when it was assessed to the defendant Comanianni, and these taxes appeared to have been paid.

Joseph Woods testified -that he lived in Shannon county and knew the defendant. The first and only time he ever saw him was in November, 1901, when he and Stewart entered into a contract with him- to cut the timber on this land. They cut it and it took them about two years to do so. They employed ten or fifteen men for the purpose. Witness put his mother in a little house on the place and she lived there about three years. The land is very rough timber land, the bluffs are the highest in the country, not more than an acre or an acre and a half of the land could be cultivated, possibly four or five acres in the whole half section. It was not suitable for pasture land. It was only valuable for the timber as far as be could judge. He and Stewart simply had a writing to the effect that they had bought the timber, they did nothing but cut the timber off of the land. This agreement between the defendant and Stewart and Woods and others was dated November 13, 1901, and provided: “That the said party of the first part [Comanianni] in consideration of the sum of four hundred dollars does sell and transfer unto the said parties of the second part all railroad tie timber (all timbers too small for railroad ties, also all pine timber, being reserved) on the south half of section five, township thirty, range four west, to be paid for in monthly payments at the amount of four cents per tie for all ties cut from the above described land.”’

John Lambert testified that he had lived in that county some two or three months and was acquainted with the land and with Dr. Ingram. Hesterly was the first man that he knew of making any improvements on the land and witness bought him out in 1895. He stayed on the land something like a year. He agreed with Ingram to deliver up to him the possession of the land. This witness testified that not more than ten or twelve acres could be cultivated on the whole tract and that only in patches.

F. L. Tyrrell testified he lived near the land in the year 1902. A man could not afford to fence the land for the grass that would grow on it. The creek overflows in the bottom land from hill to hill. The bluffs are very high. The land is only valuable for the timber that is on it.

This was about the substance of all the testimony.

On the part of the plaintiffs the court instructed the jury that the patents and deeds introduced by the plaintiffs in evidence showed the legal title to the premises to be in the plaintiffs, and unless the jury should find by a preponderance of the evidence that defendants have held such adverse possession of said land under claim of title as the court instructs to be sufficient to divest the plaintiffs of their legal title, the verdict must be for the plaintiffs. The court further instructed the jury that for defendant’s possession of the land in controversy under his deeds introduced in evidence to be a bar to plaintiffs’ legal title, such possession must have been open, notorious, exclusive, continuous and adverse to plaintiffs, and must have been taken and continued by defendant in person or by tenant by him placed in possession of the land is controversy, or by more than one tenant claiming successively under the owner, the said Comanianni, by a lease. The court refused to instruct the jury at the request of the plaintiffs that their verdict must be for the plaintiffs, and also refused to instruct for the defendant that the tax sale passed all title of the plaintiff Dyer to the defendants’ grantor, Ingram, and that under the record evidence the legal title was shown to be in the defendant. The court then gave the jury other instructions which in the main consisted of excerpts from different decisions on the question of adverse possession, but inasmuch as the evidence did not justify any instructions for defendant on that subject, we refrain from inserting them in this opinion. Under the instructions of the court the jury found a verdict for the defendant.

. I. The circuit court properly directed the jury that the patent and deeds read in evidence by the plaintiffs showed the legal title to the premises in controversy was in the plaintiffs, and that unless the jury should find by the preponderance of the evidence that defendants had held such adverse possession of the said land under claim of title as would be sufficient to divest the plaintiffs of their legal title, the verdict should be for the plaintiffs. And in order for the defendants’ possession of the land to be a bar to plaintiffs’ legal title such possession must have been open, notorious, exclusive, continuous and adverse to plaintiffs, and must have been taken and continued by defendant in person or by a tenant placed by him in possession of the land or by more than one tenant claiming successively under the claimant, the said Comanianni.

The real question confronting us in this case is whether there was sufficient evidence to submit to the jury the question of adverse possession under the ten-year Statute of Limitations, or the thirty-year statute. While ordinarily adverse possession is a matter of fact to be determined by the jury 'under proper instructions, nevertheless it has often been adjudged by this court that where the evidence was wholly insufficient to establish such a possession as the law requires to divest the title of the true owner, it is the duty of the court to declare as a matter of law that it is insufficient and take the case from the jury. [Brown v. Hartford, 173 Mo. 183.] We are thus necessarily required to examine the nature of the possession upon which the defendants rely to sustain the pleas of the Statute of Limitation, under either the ten or thirty-year statute. The defendant, Comanianni, claims under his grantor, Ingram. There is no pretense whatever that March “ or Bissel or Matheny ever had the slightest possession of the land in suit. Ingram testified that he lived in Murphysboro, Illinois; that he bought this land in 1876 from Matheny. He was asked what acts of ownership he exercised over the land while he claimed to own it, and he answered, “Paying taxes and having men to look after the land and the timber.” That he visited the land only once in his life and that was in the year 1895. He claims that he had an agent in the person of Mr. Carpenter, a farmer, who lived about two miles from the land, but Carpenter was not called as a witness to testify to any act that he did on or in relation to the land; in fact the only transaction that it is claimed Carpenter ever did in regard to the possession, was in connection with the man Woods. And Ingram testifies in this indefinite manner in regard to that:

“Q. Did yon yourself directly through Mr. Car-' penter or any other agent contract, agree and consent that Mr. Wood or some other man to build a house on said land and to cultivate the tillable land, to-wit, about one-half acre near the house? Ans. Yes, I think it was Mr. Wood, through Mr. Carpenter, agent.

“Q. When did you make said contract or lease?' Ans. I do not remember what year, sometime in the eighties. I suppose it was between Mr. Carpenter,, my agent, and Mr. Wood.”

But he testifies to' nothing definite as to who his tenant was, nor when, nor for how long a time, or any other fact which a court or jury could accept as. a basis of an intelligent judgment that he ever had actual possession of this land so open, notorious and exclusive that it would advise the real owner of such-possession and adverse claim. He also speaks of permitting a man to farm about one-third of an acre-across the creek from the house, hut he does not say as to this when that was, nor how long, nor in fact that the man ever actually cultivated this one-third of "an acre. In truth, the payment of' taxes on the-land and having an agent look after the land and timber was all that Ingram ever did. The evidence-that he paid the taxes was of the most unsatisfactory and inconclusive character as not a single tax receipt was offered and read in evidence, but conceding that he did pay the taxes and had an ag'ent to look after-trespassers, it has often been held by this court that this amounted to no more than evidence of a claim of ownership and did not constitute actual possession. This brings us then to the testimony of defendant himself. .;

He stated that he bought this land in 1895, he paid the taxes on the land and was on it twice and gave some orders about what to do and had some timber cut, and left money to have the land surveyed. He was on the land once in 1900 and once in 1902. These are the only acts of ownership by him. The attempt to show that he had a tenant on the premises failed entirely, because the defendant testified that he did not know that Mrs. Woods occupied the little house until after she had left. The contract between the defendant and Woods was simply a sale of the timber on this land by defendant to those parties, and the testimony of Woods shows that he had no lease from the respondent and did nothing on the land save cut the timber. There is not a syllable of testimony that Mrs. Woods was the tenant or lessee of the respondent. On this point, the defendant himself says: “I told Stewart and Woods to cut the timber and sell it, but do not remember just whether they asked to stay in the house or not, but I afterwards knew they occupied it. I had no objections.” But there is no testimony that Woods and Stewart occupied the house. But in regard to this little building on this land, the testimony of Ingram sought to leave the impression that this house was built by the consent of Ingram or his agent Carpenter, but the defendant called one John Lambert as a witness and he testified that Hesterly was the first man that made the improvement on this land, and that he, Lambert, bought Hesterly out and traded for the improvements in 1890 and lived there a year and then moved off and in 1894 moved back on this land and was living there in 1895, when he was requested by Ingram to vacate the premises, which he says he did about a year later. He testifies positively that he never had any lease from Ingram and was not his tenant. Now there was but one house on the land and this was the house put up by Hesterly and it must needs follow that any claim by Ingram that he had possession of this land through a tenant occupying this house prior to 1896 is utterly without foundation, as Lambert was not the lessee of Ingram and was holding adversely to him up to that date. This action was brought in 1904, and even if the defendant had held continuous possession of the land from the date to his purchase from Ingram in 1895 he could not have had ten years ’ possession and hence While the court’s instruction correctly states the law in this case, it was absolutely without substantial evidence upon which to base it. The only possession which the defendant himself claims to have had was the cutting of this timber in 1902 and this was not done by the defendant or for him, but the parties to whom he had sold the timber. As already said the possession by Mrs. Woods was without any authority of the defendant and there is nothing to show that she was his tenant or lessee. The most that can be said of the defendant’s testimony on this point is that when he heard of Mrs. Wood’s occupancy, he made no objection. In Brown v. Hartford, 173 Mo. l. c. 194, the court, in speaking on the subject of what constitutes possession to ripen into title, says: “Acts of ownership by others than the holder of the legal title should not be held sufficient to constitute adverse possession unless they were of such frequency and of such a character as would at all times apprise the real owner that his seizin was interrupted and that his title was endangered. Most dangerous results would flow from the permission by courts of titles by limitation to ripen, in favor of those holding mere color of title, without actual occupancy, by acts of ownership* so slight in themselves as not calculated to attract the attention of the real owner, or to indicate that his seizin (that follows his legal title) was interrupted. An occasional trespass by way of cutting timbers or digging a few loads of rock, is not sufficient to amount to an adverse assertion of title against the true owner, in the absence of express notice to the owner of such assertion of ownership by the trespasser. ’ ’ In Pharis v. Jones, 122 Mo. l. c. 131, it was said: “The payment of taxes on land by plaintiff, cutting timber therefrom, and keeping off trespassers, did not constitute possession, but *were merly acts of ownership, tending to show that he claimed to own it.” [See Nye v. Alfter, 127 Mo. 529.]

As to the plea of thirty years limitation (Sec. 4268, R. S. 1899), the same infirmity inheres in the case as has been noted in regard to the ten years’ limitation, to-wit, any actual possession of the land by the defendant Comanianni. His complacent, failure to object to the occupation of the little cabin by Mrs. Woods, when he was ignorant of her occupying the house, falls far short of establishing a tenancy and an actual occupancy by him through her as his tenant, and his payment, of taxes and selling the timber to the tie choppers did not constitute actual possession. Counsel refer us to Holladay-Klotz L. & L. Co. v. Markham, 96 Mo. App. 56, to establish that the cutting of timber was evidence of adverse possession,, but the language of Judge Bond properly distinguishes the effect to be given such testimony, when he says of the “instruction wherein the court told the jury that * actual possession of the land with claim and exercise of rights of ownership, would entitle defendants to a verdict,’ we do not see how the jury could have been misled if they were capable (and we must assume they were) of distinguishing between mere entry to out and remove timber} and facts tending to show actual possession with claim and exercise of rights of ownership.” Obviously the learned judge did not regard the mere cutting and removing timber, disconnected with any other evidence of visible actual occupancy, sufficient to constitute adverse possession.

In our opinion the defendant has no actual possession and there was no substantial evidence to submit that question to the jury. A careful reading of every line of this record impiesses us that this was a bold attempt to deprive the owner Dyer of his land by taking deeds with full knowledge of Ms recorded title and then cutting and removing the timber by trespassing on his land. The defendants’ claim has no element of merit, honesty or fairness in it and the owner of timber lands in this State cannot be deprived of their property in this manner.

The judgment of the circuit court is reversed with directions to enter a decree divesting defendants of all title to said lands and quieting the same in plaintiffs.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    A. H. BUCKNER v. STOCK YARDS HORSE & MULE COMPANY, Appellant.
    Division One,
    July 1, 1909.
    1. NEGLIGENCE: Master and Servant: Dangerous Place: Knowledge. Where there is knowledge of dangerous conditions by both master and servant, and a promise by the master to remedy the condition, and the master directs the act to be done without remedying the dangerous condition, the servant loses no right to charge the master with his injury, unless the danger was so patent that a reasonably prudent person would not have undertaken to obey the directions of the master, or unless the servant in performing the work was guilty of contributory negligence.
    2. ———: -: -: Anticipated Injury. It is not essential that the master could have anticipated the very injury that resulted to the servant from the dangerous condition, or that he could have anticipated that it would have occurred in the exact manner in which it did occur; but it 'is sufficient if the negligence of the master was the proximate cause of the injury.
    3. -: -: -: Combined With Other Causes. Where tlm master’s negligence in maintaining a dangerous condition, and but for which the injury to the servant would not have occurred, combined with some other unforeseen cause, has resulted in an injury to the servant, the master is liable, unless such other cause was under the control of the servant or was the outgrowth of his own conduct.
    Appeal from Jackson Circuit Court. — Eon. W. B. Teasdale, Judge.
    Akfirmeb.

      Harkless & Histed for appellant.
    (1) Under the evidence plaintiff was not entitled to recover. The gate and floor was a simple, ordinary appliance, without any complication, plain to he seen and observed by any man. It was being used constantly and might be out of line at any time. Plaintiff knew its condition and was the man to know it. He had control of it. It was his duty to report it if it needed repairing and he was the man to know when it needed repairing. He knew precisely what he was doing and left the gate in the condition in which it was. There could be no liability on the defendant’s part from plaintiff’s use of such simple appliances. No such accident had ever occurred before. Plaintiff was the sole judge of where he should leave the gate and how he should leave it and selected his own manner of conducting his affairs, and in no event could defendants have anticipated that he would leave the gate in such condition, or if he did, that horses would get in back of it and push it around against him. Trigg v. Land Co., 187 Mo. 237; Ferber v. Bolt Co., 185 Mo. 309. (2) Defendant was guilty of no negligence. The floor or gates are claimed by plaintiff to have been higher on that morning than at any other time. Defendant knew nothing about it. It was plaintiff’s sole duty to look after this condition and to see that it was repaired if he thought it ought to be done. (3) But the alleged defective condition of the gate was not the cause of the plaintiff’s injury. The proximate cause of his injury was the intervening, unexpected and unheard of action of the wild horses in running in behind it. (4) “Where the servant in command of the work is charged with the duty of looking after the repairs, the master cannot be guilty of negligence because that has not been done which it was the duty of the servant himself to do. Hollerin v. Iron Foundry Co., 133 Mo. 470; Kleine v. Friends Company, 91-Mo. App. 102.

      Charles R. Pence for respondent.
    (1) Plaintiff knew of the conditions but reported them to his foreman time and again, who promised to have them repaired. It was not plaintiff’s duty to repair or to have the repairs made. Defendant through its manager was fully informed of the condition which had existed for several months before the injury. The evidence proving these facts was not even disputed. The manager did not deny, but testified that he did not remember, of plaintiff reporting the condition of the gates and alley. (2) The defective condition of the gate and alley was the proximate cause of plaintiff’s injury. The crowding and pushing of the horses would have been harmless had it not been for the defective gate which could not be put back, but projected into the alley and was an obstruction in the alley, in the way of the horses, behind and against which they ran, throwing the gate around and upon plaintiff. It is not essential that a defendant could have anticipated the very injury complained of. It is enough that he has been guilty of negligence, and that such negligence is the proximate cause of the injury. Miller v. Railroad, 90 Mo. 394; Graney v. Railroad, 140 Mo. 98; Hoepper v. Southern Hotel Co., 142 Mo. 388; Harrison v. Electric Light Co., 195 Mo. 629; Dean v. Railroad, 199 Mo. 411. (3) If the gate and alley had not been defective, so as to make the gate an obstruction in the alley, the action of the horses would not have caused the injury. We have the case, then, of damage caused by the concurring force of defendant’s negligence and some other force for which he is not responsible. In such cases the intervening agency does not excuse defendant. Bassett v. St. Joseph, 53 Mo. 300; Vogelsang v. St. Louis, 139 Mo. 136; Lore v. Mfg. Co., 160 Mo. 625; Brash v. St. Louis, 161 Mo. 438; Harrison v. Electric Light Co., 195 Mo. 622.
   GRAVES, J.

This is an action for personal injuries. Plaintiff was an employee of defendant, which is a Missouri corporation engaged in the business of a commission merchant, buying and selling horses and mules. In its said business the defendant was using a certain barn in Kansas City, Missouri, known by it as barn “C,” which barn extended from Cenessee street on the east to Bell street on the west. Through said barn from east to west was an alley twelve feet wide and upon either side thereof were pens in which horses and mules were kept, fed and watered. This alley way had a board floor, and these pens opened in such alley way by means of gates, which gates were in length about the width of said alley way, and swung out into said alley way, so that when the gate of the pen was opened it might be used, if desired, to close the alley way. On the south side of the alley were what were known as pens No. 1, No. 2 and No. 3, No. 1 being at the east end of this alley way and going west followed No. 2 and No. 3 in order. The gate to said pen No. 2 could be opened so that it would close the passage way of' said alley way so as to prevent the horses coming out of said pen from going eastward to the street on the east of the barn. At the time of the accident, plaintiff was removing some horses from pen No. 2 to pen No. 3, the said pen No. 3 being on the south side of the alley way, and the first pen to the west of No. 2 as above indicated. To do so- the east end of the alley way would be closed by the opening of the gate to pen No. 2, and of course the gate to pen No. 3, which swung back east in said alley way, would have to be open and the horses driven out of pen No. 2 through said alley way to pen No. 3. The negligence charged in the petition is in this language:

“That it was the duty of defendant to keep said gates and alley in a reasonably safe condition for the purposes aforesaid, but plaintiff states that said defendant negligently and carelessly failed to perform said duty in this, to-wit: That the floor of said alley was at the time of said injury and for a long time prior thereto had beén in a defective, dilapidated and unsafe condition, the boards thereof were broken and rotten and the surface was uneven and portions thereof about the gate into which said horses were to be driven were raised up so that said gate could not be fully opened and swung back against said pens, but when opened as far as possible projected out into said alley and left a space between said gate and pens into which the said horses might rush when being driven from one pen to another.

“The plaintiff in transferring said horses opened said gate as far as the same would go; and while in the act of taking a position beyond the said gate to turn the horses therein, the said horses rushed into the space between the said gates and said pens and threw said gate with great force and violence around and against the plaintiff, knocking him down and permanently injuring him.”

Damages were alleg-ed in the sum of $10,845, which included $325 for medical attendance and $520 for loss of earnings. There was a second count but this was dismissed and need not be noticed further.

Answer was a general denial, plea of contributory negligence and a plea of assumption of risk. Reply, general denial.

Plaintiff had verdict and judgment for $5,000, from which judgment defendant, after an unsuccessful motion for new trial, has appealed.

The evidence in the case discloses about this state of facts. On June 1st and for a long time prior thereto defendant had the plaintiff in its employ. Defendant was continuously receiving horses and mules for sale, which came from all sections of the country. Plaintiff was what is sometimes denominated a “straw boss” and under the evidence he was strictly such, if in fact he reached that altitude in the scale. It appears that he did see that the men in defendant’s employ around their said barn “ C ” worked, and he worked with them. At times he was alone there and at times he had other men with him. One J. C. Endieott was the foreman for defendant and visited this and other bams belonging to defendant practically every day. Pie said the duties of the plaintiff were to water, feed and curry the horses, place them around in the barn “and kind of keep the men that I (Endieott) had under him working down there busy.” This witness also said that if anything got out of shape plaintiff was expected to fix it up if he could, and if not, to report it to' him.

Mr. Wolcott, vice-president of defendant, said plaintiff was not expected to make repairs; that his business was to take care of the horses; that Endieott was their general foreman and hired and discharged the men, and that Endieott had the right to give orders to Buckner, the plaintiff; that he knew of the condition of the gate only in a general way; that looking after the condition of the gate was supposed to be done by the foreman. Endieott was made a witness by plaintiff and Wolcott by the defendant. Other evidence tended to show that plaintiff had nothing to do with repairs, bnt that he was expected to report sneh things to the foreman, and that there was a gang of carpenters at the stock yards who made repairs. Snch is the testimony of plaintiff relative to defendant and the barn in question.

It was shown that this alley way floor was made of planks running cross-wise, which planks were two or three inches thick and twelve inches wide. That they had become badly rotted and worn near the-center of the alley way, with holes and broken places therein. That they had been in such condition for a long time prior to said June 1, 1901, the date of the accident to plaintiff; that by reason of such condition the ends of such planks next to the south side of the alley way had become so elevated as to preclude the gates from going clear back to the fence when the same were opened; that these gates had hooks upon them for the purpose of fastening them to the alley way fence when opened in full, thus preventing horses from getting between the end of the gate and the fence, and when opened half way for the purpose of closing the alley way these hooks would catch in a staple on the opposite side.

It also- appears that plaintiff had full knowledge of these conditions and had notified the foreman Endicott thereof and that Endicott had promised to have the same repaired.

The night before the accident defendant had received a lot of western horses, which were somewhat wild — the receipt of such character of horses was not an unusual occurrence, however. These horses had been placed- in pen No. 2 and when the owner of the horses came down the next morning he asked plaintiff to divide them and place a part in another pen. Plaintiff had no help that morning and declined to do so, whereupon the owner went to the foreman, Endicott, and renewed Ms demand. Endicott then went to barn “C” and directed plaintiff to pnt a part of the horses into pen No. 3. Under this direction from his foreman he attempted to divide and remove the horses. He opened the gate of pen No. 3, and pushed it to the east as far as it would go, hut owing to the elevated condition of the ends of the hoards, could not get it closer than five or six feet of the fence, to which it ought to have been fastened; after he had thus opened the gate, he requested a horse buyer who was present to open the gate of pen No. 2, so that the horses would come out and he, plaintiff, started to the west to turn them into the gate way of pen No. 3; whilst so doing the horses rushed out en masse from pen No. 2 and some of them got between the partially opened gate and the fence, violently pushing the gate toward the west and catching plaintiff between the gate and a post or a part of the fence, seriously and permanently injuring him.

Omitting the instruction upon the measure of the damages, the instructions given for the plaintiff read:

“2. The court instructs the jury that if you find from the evidence that plaintiff was employed hy defendant to care for the horses in its charge and possession, and was ordered hy defendant’s foreman to transfer certain horses in its barn from one pen to another therein, through an alley alongside of said pens, and that the floor of said alley was in a dilapidated and defective condition, and the surface thereof so uneven .that the gate to said pen into which said horses were to he driven could not he opened fully, hut when opened so far as said floor would allow, projected into said alley so that the horses in passing from one pen to the other would likely run behind and against said gate, and that hy reason thereof, said floor and gate were not reasonably safe and sufficient; that said conditions were known to defendant, or had existed for such length of time that defendant, by tbe exercise of reasonable care, would bave known of and could have repaired the same; and that on account of the said condition of the said gate and alley, the said horses, in passing through said alley, ran behind or against said gate and threw the same upon and against plaintiff, while in the performance of his said duty, and he was injured thereby, without negligence on his part directly contributing thereto, then your findings shall be for the plaintiff.

113. And you are further instructed that although you may believe from the evidence that plaintiff knew of the defective condition of said gate and alley, and the danger therefrom, in transferring said horses, yet if you further find that the use of said gate and alley was not so dangerous as to threaten immediate injury, or if a reasonably prudent person in the exercise of care and caution incident to the situation in which he was placed, would have continued to work about said place, his knowledge of said defects would not defeat a recovery by him.

“4. By contributory negligence is meant the want of such care and prudence on the part of the plaintiff as an ordinarily careful and prudent person would have used under the same circumstances. ’ ’

Defendant asked an instruction in the nature of a demurrer and none other. This instruction was refused. Such are the facts of this record.

I. Defendant having stood upon the one instruction in the nature of a demurrer, below, urges here and with some force, that there was no case to be submitted to the jury. The case is not absolutely without difficulties, yet when we consider all the applicable rules, we are of opinion that there was made by plaintiff such a case as entitled him to have the judgment of a jury upon the facts.

First, there is ample evidence in the record to show that plaintiff had no duty to repair the place where and the appliance with which he worked. The vice-president of defendant admits that he had no snch dnty. He was to report conditions to the foreman, and this the evidence tends to show that he did, and received a promise that the repairs would be made. It was the duty of the defendant to keep both the place and appliances in a reasonably safe condition. A failure so to do was negligence. The evidence amply shows a defective condition of the alley way and gate. It not only shows that plaintiff called the foreman’s attention to the condition, but the foreman was there each day and must have personally seen the conditions. But it is sufficient that he was notified by plaintiff, and promised to have the repairs made. There is no question that plaintiff fully knew and understood the conditions when he undertook to remove the horses, but so did the defendant, and defendant directed that the act be done. Under such circumstances the plaintiff would lose no rights, unless the danger was so patent that a reasonably prudent person would not have undertaken to obey the directions of the master. It was at least a question for the jury under the evidence before us.

Where there is kno'wledge of dangerous conditions upon the part of both employer and employee, and a promise from the employer to remedy the condition, the rule is well expressed by this court in Holloran v. Iron Foundry Co., 133 Mo. l. c. 479, where we said: “This brings us to the contention of plaintiff’s counsel that this case falls within the exception to the general rule, that, notwithstanding the defect or risk is brought to the knowledge of the employee yet if he reports it to Ms employer and the master promises to repair the defect or remove the danger, the servant can recover for an injury caused thereby, within such a period as it would be reasonable to allow the master for its performance, and for any injury suffered in any period which would not-preclude all reasonable expectations that the promise might be kept. This qualification of the general rule is now firmly engrafted in the law of this State. [Conroy v. Vulcan Iron Works, 62 Mo. 35; Keegan v. Kavanaugh, 62 Mo. 230; Flynn v. Railroad, 78 Mo. 195; Stephens v. Railroad, 96 Mo. 207.] And it is likewise the accepted rule in England. [Holmes v. Clarke, 6 Hurl. & N. 349; Clarke v. Holmes, 7 Hurl. & N. 937.]”

But it is urged that the accident is not one which could have been anticipated by the defendant. In other words defendant could not anticipate that wild horses would run between the partly opened gate and the fence, and thus cause the injury. Defendant knew that it was handling horses of that kind and character: Defendant knew that the fence and gate were out of repair and that a promise to repair had been given. It is not essential that defendant could have anticipated the very injury complained of, or that it could have anticipated that it would have occurred in the exact manner in which it did occur, but it is sufficient if the negligence of the defendant was the proximate cause of the injury. [Dean v. Railroad, 199 Mo. l. c. 411; Harrison v. Light Co., 195 Mo. l. c. 629; Hoepper v. Southern Hotel Co., 142 Mo. 378.]

In the Dean case, supra, we quoted with approval the following from the case of Fishburn v. Railroad, 127 Iowa l. c. 492: “The liability of a person charged with negligence does not depend on the question whether, with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of; but he may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission.” This as succinctly states the rule as we can state it.

Again, defendant urges that the unforeseen conduct of the horses and not the condition of the floor and gate caused the accident, or was the proximate cause of the accident. This is not tenable. Where defendant’s negligence, and but for which the accident would not have occurred, combined with some other cause or causes has occasioned an injury the defendant is still liable, unless such other cause or causes were under the control of the plaintiff in the action, or are the outgrowth of his own conduct. [Harrison v. Kansas City Elec. Light Co., 195 Mo. l. c. 625.]

In the Harrison case, supra, we find a review of all our cases and further citation is useless. After this review the rule of law is thus stated: “Many other cases in this State might be cited illustrative of the rule in reference to concurrent negligence constituting proximate cause, but the foregoing cases are sufficient to demonstrate that if a defendant is negligent and his negligence combines with that of another, or with any other independent, intervening cause, he is liable although his negligence was, not the sole negligence or the sole proximate cause, and although his negligence without such other independent, intervening cause would not have produced the injury.”

We conclude therefore that there was no error in refusing the one instruction asked by the defendant.

. II. Some complaint is made of the instructions given for the plaintiff, which instructions we have herein set out in full. We are of opinion that there is nothing objectionable in these instructions. They fairly declare the law under the facts of the case. We conclude that there is merit in plaintiff’s case and that the trial, nisi, conformed to settled principles, and the judgment will be affirmed.

All concur.


author: WOODSON, J.

text:
    JOSEPH G. STAYTON v. W. A. HASTAIN, Appellant.
    Division One,
    July 1, 1909.
    1. MORTGAGE: Note: Parting With Ownership. Where defendant is the owner and has possession of a live note and a duly recorded deed of trust securing the same, it must be shown by positive and convincing evidence that he has parted with his ownership of the same prior to the institution of the suit to set the deed of trust aside, or else the suit cannot prevail.
    2. -: -: -: Sale by Payee’s Consent: Sufficient Evidence. Gusman executed a note for $1,000 to Avery and secured it by a duly recorded deed of trust on land, naming Hastain as trustee, and Avery for value indorsed the note to Hastain. Afterwards Gosman in payment of the note conveyed the land to Avery by quitclaim deed in which payment was recited. Thereafter Avery conveyed the land to plaintiff, who brings suit against Hastain to set the deed of trust aside. Held, that the evidence does not sfiow that Hastain authorized Avery to sell the land to plaintiff, or that it was sold to plaintiff by his knowledge or consent.
    3. -: -: -: Estoppel: Improvements. Since Hastain did not know that Avery had sold the land to plaintiff until long after plaintiff had made the improvements on the land, he is not estopped to dispute plaintiff’s right to have the deed of trust set aside because of the improvements made ' by the plaintiff thereon.
    4. -: Limitations As Against Mortgagee. Continuous, open and actual possession by the purchaser from the named mortgagee for ten years or longer is not such sufficient adverse possession against the actual cestui que trust as to bar the latter’s rights under the deed of trust. Relations existing between the mortgagor and mortgagee are presumed to be friendly and to continue friendly until shown to be hostile; and the purchaser from the named mortgagor, with actual or constructive notice of the existence of the mortgage, stands in the same relation to the actual cestui que trust as did the original mortgagor to the named mortgagee.
    Transferred from Kansas City Conrt of Appeals.
    Reversed.

      Francisco & Clark and Bruce Barnett for appellant.
    (1) Although defendant in his individual capacity acquired the note in question after its maturity, yet he stands in the shoes of and has all the rights and benefits of a purchaser before maturity, because he is the transferee of a. purchaser-before maturity. Langsford v. Yarner, 65 Mo. App. 370; Bank v. Stanley, 46 Mo. App. 440; Griswold v. Buechle, 72 Mo. App. 53. (2) It is a general principle that a man cannot be divested or deprived of his property without his own consent or voluntary act and to divest him of his property by the act of an agent, two things must appear : first, the agency, must be shown; second, authority of the agent to dispose of the property must be shown. Mechem on Agency, sec. 785. (3) The deed of trust in question having been properly acknowledged and recorded prior to the purchase of the land by plaintiff, the same imparted notice to him of the contents thereof and he is “deemed, in law and equity,” to have purchased with such notice. R. S. 1899, sec. 924. (4) Defendant’s right under his deed of trust was an interest in real estate and Avery had no authority to dispose of or relinquish the same or contract therefor as agent, because not authorized in writing. R. S. 1899, sec. 3418; Greening v. Steele, 122 Mo. 287; Hawkins v. McGroarty, 110 Mo. 546; Roth v. Georger, 118 Mo. 556. An oral agreement to cancel a mortgage note in consideration of the surrender of the premises is within the Statute of Frauds. Wendover v. Baker, 121 Mo. 273. (5) An agent authorized only to sell land has therefrom no implied power to release or discharge a mortgage belonging to his principal. Mechem on Agency, sec. 333. (6 ) The evidence wholly fails to show any agency or authority whatever upon Avery’s part to dispose of or relinquish defendant’s interest in the land under the deed bf trust. Mechem on Agency, sec. 100. Authority of an agent to sell or relinquish an interest in real estate must be established by clear, distinct and positive evidence. Billings v. Morrow, 7 Cal. 171, 68 Am. Dec. 235; Hunter v. Sacremento Valley Beet Sugar Co., 11 Fed. 15; Lord v. Sherman, 2 Cal. 498; Hurley v. Watson, 68 Mieh. 531; Aldrich v. Londonderry, 5 Vt. 441. (7) Defendant’s rights under his deed of trust have not been defeated by adverse possession because the evidence wholly fails to show any act of adverse possession as against defendant as mortgagee. The friendly relation between the mortgagor and mortgagee will be regarded as continuing until disclaimed by declarations or acts unmistakably hostile, and the purchaser from the mortgagor with constructive notice of the mortgage stands in the shoes of the mortgagor. Chouteau v. Riddle, 110 Mo. 366; Lewis v. Schwenn, 93 Mo. 29; Combs v. Goldsworthy, 109 Mo. 160; Benton Co. v. Czarlinsky, 101 Mo. 275; Comstock v. Eastwood, 108 Mo. 41; Hamilton v. Boggess, 63 Mo. 234. (8) The record of a deed given by a mortgagor after the execution of a mortgage does not constitute notice to the mortgagee, and is not an act of adverse possession. Meier v. Meier, 105 Mo. 433; 2 Jones on Mortgages,' sec. 1624.

      T. W. Silvers for respondent.
    Stayton' held adverse possession of the land for over ten years, namely, from November, 1891, till April, 1902, without any knowledge or information of Hastain’s claim. Therefore, Hastain’s claim is barred by the Statute of Limitations. The intention with which a party takes possession and holds it is a controlling factor in determining whether his possession is adverse or not. As was said in the case of Ewing v. Burnet, 11 Pet. (IT. S.) 41, “The intention guides the entry and fixes its character.” 1 Am. and Eng. Ency. Law (2 Ed.), 789; Music v. Barney, 49 Mo. 458; Betts v. Brown, 3 Mo. App. 20; Knowlton v. Smith, 36 Mo. 507; Brown v. Cockrell, 33 Ala. 45; Alexander v. Wheeler, 69 Ala. 332; McMamares v. Seeton, 82 111. 498; Skinner v. Crawford, 54 la. 119; Winn v. Abeles, 35 Kan. 85; Colvin v. Land Ass’n, 23 Neb. 75. It is admitted that plaintiff’s possession was actual, open and notorious, exclusive, and continuous, the only contention of appellant being that, in its incipiency, plaintiff’s possession was friendly and not hostile to defendant’s claim. Stayton is not in the position of one claiming under a mortgagor only. He holds title from the mortgagor and the mortgagee both. The mortgagor, Gosman, repudiated any further claim against him on the mortgage when he settled with Avery and re-conveyed to Avery in full payment of his indebtedness. There could not have been any plainer a'ct on the part of the mortgagor to show his intention to end all claims against him on the mortgage. So far as he was concerned, he paid it off, as he thought. The mortgagee, Avery, took his conveyance in full settlement of the mortgage indebtedness. He then sells to Stayton and Eads, without disclosing to them that there was any mortgage on the land, or that there was any outstanding claim whatever. When they went into possession under a warranty deed from one who appeared of record to hold the entire title, they could not be held to act in recognition of any outstanding claim; and in fact they could not have acted in recognition of such claim, not having any actual or constructive notice thereof. Of record they appeared to hold both the title of the mortgagor and of the mortgagee, and their holding could not be held friendly to one claiming the interest of the mortgagee, when they had no actual knowledge of such claim, and of record are claiming to hold such title themselves. Stay-ton’s possession was so open and notorious and his acts of ownership were so obvious that all persons must have known that he claimed the land as his own, absolutely. And, having so claimed it for more than ten years before Plastain demanded any money on his deed of trust, he can still hold it as against Hastain. Daper v. Shoot, 25 Mo. 197; Fugate v. Pierce, 49 Mo. 441; Music v. Barney, 49 Mo. 458; Key v. Jennings, 66 Mo. 367; Bush v. White, 85' Mo. 360; Miller v. Bledsoe, 61 Mo. 96.
   WOODSON, J.

The plaintiff brought this suit in the circuit court of Bates county for the purpose of setting aside a deed of trust upon eighty acres of land, situate in said county, and to remove from his title thereto the cloud cast upon it by said deed.

The land formerly belonged to one Herbert D. Gosman, who, on February 12, 1888, executed the deed of trust in question to W. A. Hastain, trustee, to'secure his promissory note for the sum of $1,000, of even date, payable to A. C. Avery, due three years after date, and bearing interest at eight per cent, which deed of trust was properly recorded on April 27, 1888.

On January 23, 1891, Gosman conveyed the land to Avery in full payment of the note, secured by said deed of trust, but neither the note nor deed of trust was present when said transaction took place. Avery, in writing, acknowledged receipt of the payment of said, note and recited therein the manner of its payment. At that time Avery was neither owner nor the holder of the note and deed of trust, and therefore omitted to deliver them to Gosman or to release the deed of trust of record. After .Gosman had deeded the land to Avery, the latter for a valuable consideration endorsed the note to the defendant, and subsequently thereto, on November 25, 1891, while Avery owned the land, he conveyed by warranty deeds sixty acres of same to the plaintiff, for which he agreed to pay $709, and the remaining twenty acres to one Eads, for which, he agreed to pay $300. > This latter twenty acres was later conveyed to plaintiff also. On January 16, 1893, Avery, after transferring the note to defendant, executed a quitclaim deed without request from plaintiff, whereby he attempted to release said deed of trust, but by error described the land as being in range thirty-nine, when, in fact, it was located in range twenty-nine.

Avery testified that it was his impression that at the time he took the deed from and executed the above receipt to Gosman, he (Avery) still held the note as owner thereof, and that his impression was that a short time thereafter, and according to his impression, after the maturity of the note, he transferred, indorsed and delivered the note to W. A. Hastain, the defendant, upon an indebtedness of his to the estate of P. and G. W. Walker, of which the defendant was administrator. Avery admitted that he was not at all positive as to the correctness of these impressions.

The defendant testified that he acquired the note prior to July 5, 1888, and shortly after the date of its execution; that he was at that time administrator of the estate of P. and G. W. Walker, to which estate Avery was indebted in a large sum; that as payment upon this indebtedness he turned over this and other notes to the defendant, as such administrator; that under an order of distribution of the assets of said estate, this note fell to the two Middaugh heirs, who, as grandchildren of one of the Walkers, had an interest in the estate. The defendant Avas guardian and curator of these Middaugh heirs, as well as administrator of the Walker estate; that in his next annual settlement as such administrator, mude July 5, 1888, he accounted for a lump sum, which included the amount of this note collected from Avery upon his indebtedness to the estate, and in his annual settlement as guardian and curator of Pleasant W.' Middaugh, a minor, made in the probate court of Henry county, on July 5, 1888, lie charged himself with this note secured hy the deed of trust in question.

The annual settlement of W. A. Hastain (the defendant) as guardian and curator of Pleasant W. Middaugh, a record and court paper of the prohate court of Henry county, filed and approved July 5, 1888, was introduced in evidence and shows among the assets of the ward in the hands of the guardian and curator the following:

“To % amt. received from P. &. G-. Walker estate, and on Feb’y. 12, 1888, loaned to Herbert D. Grosman, at 8 per cent, secured by a deed of trust on Bates Co. real estate, being 80 acres in twp. 42, R. 29, $500.”

Hon. R. E. Lewis, district judge in the State of Colorado, and for eighteen years prior to 1898 a member of the Clinton, Missouri, bar, testified by deposition that he was attorney for the defendant in connection With his settlements as administrator of the Walker estate, and as guardian and curator of the Middaugh heirs; that Avery turned over the note and deed of trust in question to the defendant as such administrator “very soon after the same were executed,” as payment upon the indebtedness of from ten to twelve thousand dollars due from Avery to the Walker estate, and said note and deed of trust “were continuously thereafter carried by Hastain, as guardian and curator of said Middaugh heirs, as a part of the assets of their estate.”

Upon final settlement with the Middaugh heirs, after they became of age, this note fell to the defendant in his individual capacity, by agreement, he paying them the amount thereof in cash.

Avery testified that prior to this sale to the plaintiff, he (Avery) tried to induce the defendant to take the land in payment of the note secured by the deed of trust upon it, but defendant, after making a trip to the land and looking it over, said that he would rather have one thousand dollars than the land, and that he -would not take the land for the note; that he (Avery) then had some negotiations with Stayton, the plaintiff, and reported hack to the defendant that he could sell the land for $1,000 on time, ánd the defendant told him to do so; that the plaintiff then purchased the land from him (Avery), and in time paid the full amount of the purchase price in installments. The plaintiff testified that he never knew anything about there being a deed of trust upon the land until about two years before the institution of this suit; that he never at any time made any examination of the records, nor caused any to be made, to ascertain whether or not there were any liens or encumbrances upon the land. He testified that about one week before the date of his purchase of the land, and while negotiations were pending therefor, he went to Avery’s office in Clinton, and there met two old men, to one of whom Avery said: “This [referring to plaintiff] is the old man who is going to buy our Bates county land;” that one of these old men looked like the defendant, but referring to a blemish which was on the defendant’s nose at the time of the trial he said: “That place on his nose don’t look just right, don’t think it was there.” It is most likely that plaintiff was mistaken as to one of these old men being the defendant, because the blemish referred to had been upon defendant’s nose for about twenty years, and is very noticeable, as defendant testified, and was there in 1891, when this occurrence is claimed to have taken place; the defendant denied that such a remark was ever made in his presence; and Avery testified as follows: “It is my impression that it was right there in the office, and I made this remark to him [Hastain], in the presence of Stayton at the time, ‘Here is these men come down to buy our land,’ and I told him then, or that afternoon, they had taken it on time.”

The defendant, in his testimony, denied that he ever told Avery to sell the' land for $1,000, or for any other sum, and testified that he never knew the land, had been sold at all until about two years before the trial of this cause, at which time Avery so informed him; that he thereupon asked Avery how it was that he could sell the land, when he (the defendant) held a deed of trust upon it, to which Avery replied: ‘ ‘Well, I sold it for what you said it was worth. ’ ’

The defendant further testified that he at no time gave Avery or any other person to understand that he would relinquish his rights under his deed of trust, but at all times looked to his lien upon the land thereunder. The defendant testified, Avery admitted, and it was undisputed, that defendant had the note and deed of trust continuously in his possession ever since it was first turned over to him, and that never until two years before the institution of this suit was any demand made upon him to release the deed of trust, or surrender the note. And it is also undisputed that neither Grosman, nor the plaintiff, ever made any demand or request of either the defer dant or Avery that the deed of trust he released.

The note has been kept in force by the payments made upon it from time to time by Avery, who was liable upon it, both as indorser and by virtue of his obligation to plaintiff under the covenants of his warranty deed.

The evidence shows that the plaintiff has put some valuable improvements upon the land since he purchased it, but there is no evidence that the defendant had any knowledge whatever that same was being done.

There was some testimony introduced by plaintiff hearing upon the question of adverse possession, and showing that he had made valuable improvements upon the land since he had purchased it from Avery, but that evidence will be further considered later on.

The trial court found the issues for plaintiff and entered a decree setting aside the deed of trust and clearing plaintiff’s title from the cloud thereof and divesting the defendant from all right, title and interest in and to said land under and by virtue of said deed of trust.

In due time and in proper form defendant appealed said cause to the Kansas City Court of Appeals, which Was by that court transferred to this court, because title to real estate is involved in the cause.

I. This record conclusively shows that Hastain, the appellant, as administrator of the estate of P. & Gr. W. Walker, sometime prior to July 5th, 1888, in good faith and for a valuable consideration, acquired both the legal and equitable title and possession of the note and deed of trust described in the pleadings and evidence in this case, and that subsequently he individually acquired title to both, and before he can be deprived of his legal rights thereto it must be shown by clear, positive and convincing evidence that he had parted with his ownership prior to the institution of this proceeding. Now, in what way and in what manner has the respondent attempted to show plaintiff’s disposition of the note and deed of trust?

If I correctly understand counsel for respondent, his contentions are that appellant parted with his interest in and to said note and deed of trust in one or all of the following modes:

First: By authorizing Avery to sell the land to respondent, or that Avery sold the land to respondent with appellant’s knowledge and consent.

Second: That appellant is estopped from asserting his interest in said note and deed of trust, for the reason that he stood by, without objection, and permitted respondent to make valuable and lasting improvements upon the land, at great cost, and that it would be unjust and inequitable to now permit appellant'to enforce Ms legal rights under the note and deed of trust, and;

TMrd. That appellant’s rights and interests in and to the note and deed of trust are barred by the Statute of Limitations, or rather that respondent has acquired title to the land described in the deed of trust by adverse possession.

We will discuss and dispose of those contentions in the order stated.

As to the first, it is sufficient to state that this record is barren of all evidence Worthy of credence which even tends to show appellant authorized Avery to sell and convey the land to respondent. While Avery, by insinuation more than by direct testimony, tried to convey the idea to the court that he had authority from respondent to sell the land, yet that testimony of Avery is flatly and unconditionally denied by appellant. And from the disclosures made by this record, we have no hesitancy whatever in saying that the dishonest conduct of Avery all through this transaction shows his testimony to be. entirely unworthy of belief.

And the contention that Avery sold the land to respondent with the knowledge and consent of appellant is equally unfounded and unsupported by the evidence. The greater weight of the evidence not only disproves that contention but it is conclusive that appellant did not know the land had been sold at all until about two years before this suit was instituted.

As to the second contention made by counsel for respondent, which regards the estoppel set up against appellant’s right to assert his title and interests in and to the note and deed of trust, it may also be said that there is no substantial evidence to be found in this record which gives support to. that contention. The evidence shows that appellant not only did not stand by and see respondent make the improvements upon the land, without objection, but it also shows that ¡he did not know that the land had been sold to him until some two years before this suit was brought, and could not, therefore, have acquiesced in the making of- the improvements by respondent.

The third and last contention presented by respondents is, that he has been in the actual, open, exclusive and adverse possession of this land for a period of more than ten years, next before the institution of this suit, claiming title thereto against the world, and especially against the appellant. The record shows, and it is undisputed, that on November 25,1891, Avery, by warranty deeds, conveyed sixty of this eighty acres of land to respondent for the sum of $700, and the remaining twenty acres to Eads for the sum of $300, which latter tract respondent subsequently acquired from Eads. They immediately took possession of the land under those deeds and have been in the unbroken possession ever since, and claiming title thereto and thereunder. But that alone is not sufficient to bar appellant’s rights under the deed of trust, because the evidence wholly fails to show any act of adverse possession as against appellant as mortgagee.

All of the authorities sustain the proposition that the relations existing between the mortgagor and mortgagee are presumed to be friendly and not hostile until the contrary is shown, and that friendly relation must be presumed to continue until disclaimed by declarations or acts of unmistakable hostility, and the purchaser from the mortgagor with actual or constructive notice of the existence of the mortgage stands in the same relations to the mortgagee as did the original mortgagor. [Chouteau v. Riddle, 110 Mo. 366, and cases cited; Lewis v. Schwenn, 93 Mo. 26; Combs v. Goldsworthy, 109 Mo. l. c. 160; Benton County v. Czarlinsky, 101 Mo. 275.]

We are, therefore, of the opinion that none of the three contentions of respondent are tenable.

II. Counsel for both appellant and respondent discuss many secondary or minor questions to those before determined, which only amplify or throw light upon those questions but do not control them, which makes it unnecessary to consider them in this opinion.

We are, therefore, of the opinion that the judgment should be reversed and the bill be dismissed. It is so ordered.

All concur, except Graves, J., not sitting.