text:
    CHARLES WRIGHT et al., Appellants, v. CITY OF JOPLIN et al.
    Division One,
    July 5, 1918.
    1. STREET AND LOTS: Plats and Measurements: Conflict. By Section 6573, Revised Statutes 1879, the platting of ground had the same legal effect to dedicate to public use the streets and alleys therein described as would a conveyance directly to the city; and when the owners of the lots and blocks fronting on said streets and alleys as shown by the plat sell them to third parties, the title to the streets and alleys cannot be questioned by the city or by the purchasers of other lots, nor can the rights of the purchasers of lots to access to the streets and alleys as shown by the plat be questioned by purchasers of other lots embraced within the plat. [Following Laddonia v. Day, 265 Mo. 383.]

      2. -: -: -: Plat Determinative. When the plat of an addition has been executed and filed in conformity with the statute, the streets and alleys indicated by the plat as actually fitted to and laid out on the land, and not as indicated by calls of measurements, courses and distances as shown by field notes of the purveyor, became vested absolutely in the city for the use of the public. If there is a conflict between said plat and the measurements of a survey — if the plat designated certain streets and they were actually laid off on the surface of the ground by the dedicators as indicated by it and as subsequently used by the public, and lots were sold and improved in conformity to stakes and boundary lines, which also were in conformity to the plat, although the field notes attached to and filed with the piat described the tract as 1320 feet square, when as shown by the plat the tract was 1325 feet east and west, and as shown by a subsequent survey was 1300 feet on the north line thereof and 1299.7 feet on the south line — the plat must prevail, and the city cannot change the lot lines as shown by it, nor re-establish the streets and alleys in accordance with the actual measurements.
    Appeal from Jasper Circuit Court. — Hon. J. D. Perkins, Judge.
    Reversed and remanded.

      Hugh Dabbs and W. J. Owen for appellants.
    (1) Where the land, as in this instance, was actually surveyed and stakes set out to indicate the various lots, streets, and alleys by the proprietors, and were fenced and improved, and the streets and alleys opened and used in accordance with these stakes, and the conduct of the first settlers shown a uniform understanding, such lines so shown to exist cannot be changed by subsequent surveys. McKinney v. Doane, 155 Mo. 288; Jones v. Poundstone, 102 Mo. 240; Waysville v. Truex, 235 Mo. 628; Whitwell v. Spiker, 238 Mo. 638; Thrush v. Gray-bill, 81 N. W. 798; Root v. Town, 54 N. W. 206; Stetson v. Adams, 39 Atl. 375; Bean v. Bachelder, 3 Atl. 279; Ripley v. Berry, 17 Am. Dec. 201; Halst v. Streitz, 20 N. W. 307; Richardson v. Chickering, 77 Am. Dec. 269; Kellog v. Mullen, 45 Mo. 571. (2) Tradition, reputation, hearsay, visible monuments, both natural and artificial, conduct of first settlers, uniform constructions and improvements, testimony of any one ¡having knowledge of the facts may be employed to prove and establish the true lines as staked out and marked by the original proprietors upon the ground. St. Louis Pub. School v. Risley Heirs, 40 Mo. 371; Marysville v. Truex, 235 Mo. 628; Whitwell v. Spiker, 238 Mo. 638; Kronenberger v. Hoffner, 44 Mo. 192; Whitehead v. Regan, 106 Mo. 235; Jacobs v. Mosley, 91 Mo. 460; Major v. Watson, 73 Mo. 662; Mayor of Liberty v. Burns, 114 Mo. 430. (3) The particulars of the description contained in a plat are not conclusive of the correctness of such description, and is only a picture of the survey from which it was made, and is only intended to be a representation of the actual survey as made upon the ground. Coleman v. Lord, 52 Atl. 645; Whitwell v. Spiker, 238 Mo. 638. (4) The city improved some of these streets, laid water mains therein, put in culverts, and street cars operated thereon, and all conforming to lines as marked and staked out by original proprietors, and all of these facts evidenced dedication and acceptance. Rose v. St. Charles, 49 Mo. 510; Naylor v. Harrisonville, 207 Mo. 349 ; Benton v. St. Louis,” 217 Mo. 703.

      E. F. Cameron for respondent.
    (1) When an authenticated plat of a sub-divided tract of land is referred to in a deed conveying a subdivision of such tract, the plat becomes as much a part of the deed as if fully incorporated in it. Whitehead v. Ragan, 106 Mo. 231. (2) Equity will interfere to ascertain and fix boundaries where the rights of a large number of persons are, as in the present case affected, and the confusion of boundaries has been occasioned by lapse of time, accident or mistake, and a necessity arises therefrom to adjust such conflicting claims, and thus prevent multiplicity of litigation. Frame v. Roboteau, 56 Mo. 415; 1 Story’s Equity Jurisprudence, sec. 621. (3) The lines that appellants contend for have long since become obscured, if not entirely obliterated. The monuments are gone, In such' a case equity has jurisdiction to settle them. Watkins v. Child, 11 Am. & Eng. Ann. Cases, 1123. (4) When a plat is filed to an addition in a city or village that is not incorporated, the fee of such land conveyed as aforesaid shall be vested in the proper county in trust for the uses and purposes mentioned in said plat. Sec. 10294, R. S. 1909. There need not be an acceptance by the county or by the city to vest this title. Hill v. Hopson, 150 Mo. Ápp. 611; Brown v. Carthage, 128 Mo. 17.
   WOODSON, J.

The plaintiffs instituted this suit in the circuit court of Jasper County against the defendants, for the purpose of having the streets and alleys in First Addition to East Joplin City, now incorporated in and constituting a part of the City of Joplin, Jasper County, Missouri, as laid off on the surface of the ground by the original owners.of the land on which the addition is located, ascertained, determined and established. The full prayer is “that the said streets and alleys as laid off on the surface of the ground by the original owners be ascertained, determined and established, and the acts of said original owners be confirmed and adjudged; that all lots and tracts of land owned by plaintiffs and others likewise situated in said addition be ascertained, determined, established and adjudged as the same was laid and staked off by the original owners on the surface of said ground,; that said defendant, City of Joplin, be perpetually enjoined and restrained from changing the lot lines as-originally established by the original owners, of the streets and alleys, as laid off and established by the original owners, or from exercising any dominion over any part of the lots and tracts of ground owned by these plaintiffs, inconsistent with lines and boundaries as laid off and staked on the surface of said ground by the original owners; and that said defendant city be perpetually enjoined and restrained from passing any ordinances authorizing any improvements otherwise than in conformity with the lines made by said original owners; that said defendant V. E. Koch, a contractor, be perpetually enjoined and restrained from putting in any street crossing, constructing any sidewalk or making any other improvements that will change or interfere-with any of the boundary lines, marks or monuments established by the original owners of said ground as aforesaid; that both of said defendants be perpetually enjoined and restrained from doing any act of trespass upon the realty of these plaintiffs, or prevent them in any manner from occupying and enjoying the tracts and lots of land claimed by them to be the boundary lines as laid and staked off by said original owners, subject to the city’s rights as a municipal corporation, and plaintiffs pray for all such other, further and general orders, judgments and decrees touching the premises, as to the court shall seem meet, just and proper, and for costs of suit.”

The material parts of the answer are as follows:

That on the 30th day of May, 1872, the owners of the southeast quarter of the northeast quarter of section two, township twenty-seven, range thirty-three, Jasper County, Missouri, being the same owners as those said owners who platted the said addition entitled “East Joplin City,” as aforesaid, made and executed a plat of and dedicated a town addition located on said last mentioned land, and entitled the same, “First Addition to East Joplin City,” a copy of which marked “Exhibit C” and “Exhibit D” is attached hereto and the same, together with the notations and averments thereon, are made a part hereof and of the averments of this answer, the said plat being duly filed for record in the office of the Recorder in said Jasper County, Missouri, on the 3rd day of June, 1872; and that said plat, with the dedication of the streets and alleys to the public use as therein provided, at all times since, has been accepted, recognized and treated as an addition to the city of Joplin, by this defendant and the municipal corporation of which it is the successor.

But said defendant further says that by reason of mistake and accident in computing and drafting said plat of East Joplin City, the same is inconsistent and repngnant, for that the call for the external lines of said addition are 1320 feet north and south, and 1320 feet east and west, but calls for the lots and subdivisions thereof aggregáte 1325 feet east and west, while the dimensions of' the designated forty-acre tract whereon the plat is located are only about 1300 feet east and west, and about 1218 feet north and south. That by-reason thereof the lines and limits of the said addition and the lots, streets, alleys, and subdivisions thereof, and by reason of the lapse of time, carelessness of the occupants, mistaken and conflicting surveys, and absence of any fixed monuments, have become confused and uncertain, and likewise the lines and limits of the said First Addition to East Joplin City, and because the same is on the contiguous subdivision of the same quarter section as East Joplin City, and conflicts with and overlaps the plat of said East Joplin City, and because of the lapse of time, carelessness of the occupants, mistaken and conflicting surveys, and absence of any fixed monuments, have also become confused and uncertain. That by reason thereof the external lines of both said additions, and of the lots, streets, alleys and subdivisions have been and are now obliterated, so that no one of the plaintiffs is occupying according to the original boundaries of his premises, and by reason of such conditions and the said state of affairs the lines of the streets and alleys of the said defendant, City of Joplin, in both said additions, are confused, irregular, uncertain and their true limits obliterated, nor is this defendant able with reasonable accuracy, to locate, by any personal knowledge of its officers, agents or servants, or by public records as exist, the physical location, metes, and bounds of the streets and alleys of said addition, dedicated to the public use and intended to be under said defendant’s supervision- and control.

And said defendant says, following upon the uncertainty, mistakes, confusion in respect of said lines as aforesaid, the plaintiffs herein and numerous of the other occupants of said additions have been and are encroaching upon the streets ’ and alleys thereof, and proposing and threatening to resist every effort of said defendant to exercise authority over such streets and alleys, and threatening to enjoin said'city and its officers and to prevent any work of improvement in said streets or alleys or parts thereof. That the said defendant is embarrassed and impeded in making necessary and proper improvements upon its streets and alleys, and in attempting to perform such duties in the premises would inevitably and necessarily become involved in controversies and litigation with a great number of the owners of the lots and parcels of said addition, and delayed by long, continued, vexatious and unreasonable litigation, cost, and expenses, as well to the property owner? in said additions as to this defendant.

And defendant says that all of the parties plaintiffs, and all the numerous owners, residents, and occupants of all and every the various lots and tracts and parcels in said additions, more numerous than is practicable to bring them all before this court, are equálly interested in having the boundaries and lines of said additions and of the streets and alleys thereof determined in one action, and that the same is necessary in the premises, in order to avoid a multiplicity of suits at law, and which would necessarily have to be resorted to if the relief prayed for in this answer be denied.

Wherefore, said defendant, City o;f Joplin, prays that the court correct and amend the said East Joplin City''plat, and harmonize and adjust the lines thereof in. accordance with the intentions of the grantors thereof; and that the court fix and determine the external boundaries of both said additions, and the lines and boundaries of the streets and alleys thereof, as against the • said plaintiffs, and by representation against all parties having a common interest in the subject of this action, and for any other and further relief as to the court may seem just and proper in the premises.

The reply was a general denial.

After hearing the evidence, which is very voluminous, the court found the issues for the defendants and rendered judgment as prayed for in the answer.

After moving un successfully for a new trial, the plaintiffs duly appealed the cause to this court.

In 'so far as the survey of this addition is concerned, the dedication of the streets and alleys to the public and the staking off- of the lots and blocks according to their frontage upon said streets and alleys by the owners of' the land platted in the year 1872, the evidence is practically undisputed.

The facts are tersely outlined by counsel for plaintiffs in their statement of the case, as will more fully appear presently from excerpts made from the finding of the court, which are preserved in the record.

The statement' of counsel for the plaintiff is as follows:

“During the year 1872, and long prior thereto, John H. Taylor, S. B. Corn and others were the owners in fee of the southwest quarter of the northeast quarter of section 2, township 27," range 33, in this county, and they also owned' the land surrounding, adjoining and-adjacent thereto. They laid off this tract in streets, alleys and lots, as an addition to East Joplin City, now a part of the City of Joplin, and these plaintiffs, together with many other persons, became and are the owners of certain lots so laid off and sold by said, owners.

“The lots so purchased and sold-were improved by the purchaser, in conformity with certain stakes and boundary lines set and established by the owner. Said improvements were uniform and conformed to the streets and alleys, as then established and located on the surface of the earth.

“These plaintiffs, and other persons likewise situated, have since that date maintained their improver ments in conformity with these lines, and still claim to the lines as originally laid off.

“Some time thereafter the city of Joplin made another survey of this land, which, if conformed to, would move all .of the original owners, so that the streets, under the new arrangement, would cut twenty-five feet into the lots of the original owners and leave twenty-five feet of the old' streets/ as a part of their holdings, and this suit was instituted in July, 1912, in an effort to set at rest as to whether the old, original owners should yield to the changed conditions as brought about' by the city.

“The city of Joplin answered, admitting the ownership of the original holders and asserting the disputes as to the true lines, and joins with the plaintiffs in the request to have the boundaries and lines of said addition, and all of the streets and alleys thereof, determined.”

The findings of the court insofar as they are material to the legal proposition presented for adjudication are as follows:

“The court now being fully advised in the premises doth find that the defendant, City of Joplin, is a city of the third class under the laws of the State of Missouri, and is the successor of East Joplin City, a municipal corporation of the State of Missouri, and of all additions heretofore made thereto, and of all the rights, privileges and jurisdiction thereof as limited by its authority and charter as such city of the third class, and that the southwest quarter of the northeast quarter of section 2, township 27, range 33, is within the corporate limits of said city of Joplin. That on the 18th day of March, 1872, the owner of said southwest quarter of the northeast quarter of section 2, township 27, range 33, made and executed a plat of said l&st described land, laying the same off into blocks, lots, streets, and alleys, and entitled the same ‘East Joplin City/ and dedicated the streets and alleys to public use, which said plat, together with' the field notes thereto attached, was filed for record in the Recorder’s office of Jasper County, Missouri, on thé 20th day of March, 1872. That said field notes described said tract of land so platted and laid out as being 1320 feet east and west and 1320 feet north and south; that said plat shows the aggregate width of said tract of land east and west to be 1325 feet, and the court finds from the ■evidence that the actual width of said tract of land east and west is 1300 feet on the north line thereof and 1299.7 feet on the sonth line thereof. That the measurements, call and distances in the field notes begin on the west line of said tract and extend eastward across the same, so that the actual size of said tract of land is 20 feet less at the north end and 20.3 feet less at the south end, than was platted, as shown by the field notes, and that the actual size of said tract of land east and west is 25 feet less at the north end and 25.3 feet less at the south end than was platted, as shown by said plat. Said plat shows a street 25 feet wide on the east thereof designated- as Fifth Street, now named Hight Street, so that at the north line of said tract the west line of Fifth Street as shown by the plat is identical with the east line of said tract of land, and is .3 of a foot west of the east line of said tract of. land at the south end thereof, and according to the field notes 20. feet of Fifth Street is east of the east line of said tract of land at the north end and 20.3 feet east of the east line of said tract of land at the south end thereof, therefore, according to said plat, the whole of Fifth Street was east of and entirely off of the said plat so platted, and according to the field notes 20 feet of Fifth Street was east of and off of said tract so platted, with a variation of .3 of a foot at the south end as above stated.

“That on the 30th day of May, 1872, the said owners of said land so platted and laid out as aforesaid, being also owners of the land immediately east thereof, to-wit, the southeast quarter of the northeast quarter of said section 2, township 27, range 33, made and executed a plat of said last described land, laying the same off in blocks, lots, streets and alleys, and entitled the same ‘First Addition to East Joplin City,’ and dedicated the streets and alleys to public use, which said plat, together with the field notes thereon and ’thereto attached, was filed for.record in the Recorder’s Office of Jasper County, Missouri, on the 3rd day of June, 1872. That said field notes and also said plat described said tract of land so platted and laid off as being 1265.5 feet east and west, and the court finds from the evidence that the actual width of said tract of land east and west is 1301.01 feet on the north line thereof, and 1299.7 feet on the south line thereof. That the measurements, call and distances in the field notes begin at the west line of said tract and extend eastward across the same, instead of beginning at the east line of Fifth Street as laid off and platted by the plat of the First Addition to East Joplin City. A strip on the west side thereof 30 feet wide is designated as Fifth Street. The court finds that the owners of said two tracts of land so platted and laid off as aforesaid made surveys thereof and staked off the lots, streets and alleys by planting wooden pegs in the ground, so as to show the lines of the streets and alleys and the corner óf the lots, but the exact dates thereof are not shown, but in the summer of 1872 lots were being sold and improvements being made thereon in accordance with the lines shown by said pegs. These improvements were on the south part of the addition, mostly in the vicinity of Hill Street and Main Street (now Broadway), and the .improvements were made on lines east of tbe lines shown on said plat of said addition, but how far east cannot now be determined, the original pegs and also fences built while the pegs were standing having all disappeared, and there being a discrepancy of five feet between the lines called for by the field notes and the lines shown by the plat of East Joplin City, there is now no way to determine whether the pegs planted in the First Addition were located with reference to the east line of Fifth Street, as shown by the field notes or as shown by the plat of East Joplin City.

“Between the years 1872 and. 1892, the houses now belonging to the plaintiffs and a few others were erected, consisting of residences and outbuildings and fences on the lines as originally shown by said stakes, and these improvements were mostly along Main Street (now Broadway) and Hill Street, some as far north as Valley Street. About the year 1892, the exact date not shown, the owners who platted and laid out these two tracts, being also tbe owners of the forty-acre tract lying immediately south of the First Addition to East Joplin City, sold said' forty-acre tract, together with all the unsold lots in the First Addition to East Joplin City, to a eompai^y of persons' who laid out said forty-aere tract and platted same as ‘Taylor’s Addition-to East Joplin City,’ and had the same surveyed, which survey showed the discrepancy between the lines of the old improvements in First Addition to East Joplin City and /the lines according to the plat thereof, whereupon they made a survey of First Addition to East Joplin City and located the lines of 'the streets and alleys and lots in accordance with the plat thereof and planted stakes showing said lines, and proceeded to sell the unsold lots, and the purchasers of such lots began to build houses and fences in accordance with said last mentioned stakes and in accordance with the lines as shown by the plat of said First Addition, the old original stakes all being gone.”

The court then proceeds at some length in finding how the streets and property situate in First Addition to Joplin City had been improved since the resurvey of the same was made by said purchasers of the unsold lots just mentioned, which. was some twelve or fifteen yards after the original survey was made, which was in 1872. But all of these findings are foreign to the question here involved.

I. The only question presented by this record for determination is, which shall prevail, the plat of First Addition to Joplin City, as actually laid out, located and staked out upon the surface of the ground by the original .owners of the ‘ land and the makers of the plat, or the plat that erroneously attempted to follow the calls for monuments, courses and distances?

While there is but one plat in controversy, yet when viewed from the two aspects mentioned, the streets and alleys, lots and blocks indicated by the former occupy ground quite different from that called for by the latter. The pleadings recognize this difference, and the petition asks that the plat as actually laid out, located and staked off upon the surface of the ground he adjudged the true plat of the addition, while the answer asks that the court correct errors of the plat mentioned in the answer in conformity to the calls for the monuments, courses and distances as disclosed by the plat and field notes filed therewith.

We have just recently had this precise question before this court in the case of Laddonia v. Day, 265 Mo. 383, where we had under consideration Section 6573,- Revised Statutes 1879, which also governs this plat, and is now Section 10294, Revised Statutes 1909. That section reads: '

“If any person shall sell or offer for sále any lot within any city, town or village, or any addition .thereto, before the plat thereof be made out, acknowledged and recorded, as aforesaid, such person shall forfeit a sum not exceeding three hundred dollars for every lot which he shall sell or offer to sell. Such maps or plats of such cities, towns, villages and additions made, acknowledged, certified and recorder, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein named, described or intended for public uses in such city, town or village, when incorporated, in trust and for the uses therein named, expressed or intended, and for no other use or purpose. If such city, town or village shall not be incorporated,, then the fee of such lands conveyed as aforesaid shall be vested in the proper county in like trust, and for the uses and purposes aforesaid, and none other.”

In discussing that statute, this court, on page 397, said:

“The question involved in this case is too important and far-reaching, either for good or evil, to rest unsettled, and for one I am now in favor of eliminating from the jurisprudence of this State, forever, all of the evil that still lingers in the law regarding this matter, which said Section 10294 was evidently designed to eradicate. In the administration of the law the courts have, at times, through inadvertence or oversight, overlooked said statute, and at other times have tried to harmonize it with the old rules of the common law regarding monuments, courses and distance governing the conveyance of rural property, when the two are as irreconcilable as are oil and water or good and evil, as is conclusively shown by the conflict mentioned in the cases before mentioned.

“The old rules of courses, distances and monuments when concededly applicable to the conveyance of rural property — after conveyance made and the vendee has been placed in possession of the property by the vendor, and large and lasting improvements have been made and placed thereon — the courts of this and many, if not of all, other states, have not hesitated for one moment to suspend through the application of the doctrine of estoppel, in order to carry out the real intent and purpose of the parties and to mete out equity and justice between them and their privies in contract, blood and estate.

“In many such cases that doctrine of estoppel has been applied to the conveyances of farms, to grants of rights of way for railroads, and even to the sale of city property.

“Those cases are so numerous and familiar to the bench and bar that it would be a supererrogation of labor and a waste of space to cite them.

“The courts in those cases work out through the principles of equity precisely what the Legislature evidently designed to accomplish by the enactment of the statute in question. Or in other words, the frequent errors and the many mistakes made by surveyors and property owners in laying out towns and cities and additions thereto, fraught with the hundreds of incidental and irreparable evils thereof, were the causes that gave birth to that statute; and the evident design was that when such a plat had been executed and filed in conformity to the statute covering the land owned by the party malting the addition and dedicating the streets and alleys indicated by the plat filed therewith, then the streets and alleys indicated bjr the plat as actually fitted to and laid out on the land, became vested absolutely in the town or city for the use of the public, and that is true whether the plat as actually located upon the ground by the owner, by the sale of lots or otherwise, conforms to the lines of the survey or not, and especially after lots have been sold by him according to the actual location of the plat.

“Neither the public, the owners of the streets, nor the purchasers of the lots are so much interested in the question as to whether or not the plat conforms to the points of the compass or to the lines of the survey of sections and quarter sections, as they are in the certainty of the location of the lots and blocks and streets and alleys.

“Monuments are easily removed or destroyed, and for that reason they frequently disappear; but additions to towns and cities, laid out into lots and blocks and streets and alleys, with buildings erected upon the former and the streets improved, which is the very purpose of the addition, are not easily removed or destroyed. In the latter case, if a mistake is made of the true line of the street or of a lot or block, as a rule it only affects the party or parties making it; but in the former, the city and every property owner in the addition is of necessity affected thereby; and if that rule and not the statute is observed, each and all of them will be more or less damaged thereby.

“Any other construction of the statute would practically nullify and destroy the highly remedial provisions thereof, and in' case of a mistake as previously indicated, that entire part of the city, and all of the property owners therein, would be thrown into confusion and uselessly damaged more or less; and in many eases the damages would be irreparable.

“We, are, therefore, of the opinion that the.judgment should be reversed and the cause remanded to the circuit court for a new trial in conformity to the views herein expressed.”

In brief, we tried to state that tbe platting of ground under this statute had the same legal effect to dedicate the streets and alleys therein described to the public as effectually as if they had been conveyed by deed directly to the city; and that when the owners of the lots and blocks fronting upon said stréets and alleys as shown by the plat sell any or all of them to third parties, the title of the streets and alleys so dedicated cannot be questioned by the city, nor by other purchasers of other of such lots, nor can the rights of the purchasers of such lots to access to such streets and alleys as actually located be questioned by other purchasers of other lots embraced within the plat from the dedicators-.

The views announced in the Laddonia case, supra, were confirmed by this court in the case of Macom v. Brewster, 273 Mo. 616, in an opinion written by Bond, J., on March 4, 1918.

For the reasons stated the judgment is reversed and the cause remanded to the circuit court with directions to render a decree for the plaintiffs as prayed for in the petition.

Blair, P. J., and Graves, J., concur.


source: Caselaw Access Project

author: RAILEY, C.

license: Public Domain

text:
    CORNELIA TOWNSEND v. M. L. SCHADEN, Administratrix of Estate of GEORGE TOWNSEND, Appellant.
    Division One,
    July 5, 1918.
    1. APPELLATE PRACTICE: Weight of Evidence: In Law Case. A claim against an administrator for the recovery of the value of bonds borrowed by decedent from claimant and never returned, commenced in the probate court and taken by appeal to the circuit court, is an action at law, and if the verdict in favor of claimant is supported by substantial evidence, the trial court is within the law in overruling a demurrer thereto, and it is not the province of the appellate court to pass upon the weight of the evidence.

      2. WITNESS: Competency: Sister of Deceased Donor of Bonds. Decedent by one letter addressed to two sisters gave one forty bonds and the other twenty, which he afterwards borrowed from them and did not return, and both bring separate actions against the administratrix for the value of the bonds given-to them respectively. Held, that he made separate and distinct gifts to each, and though the gifts were made in the same transaction, yet as neither had any interest in the bonds intended for the other, neither is disqualified by the statute to testify as a witness for the other in her separate suit.
    3. GIFT: Intention and Delivery: Sufficient Evidence. Where decedent by letter written in Indianapolis, directed to his sister, stated he was on that day sending to her, as a gift, at Chicago, forty bonds of a named company and of designated numbers, and on the same day entered in his diary a memorandum that he had given her said bonds, there is substantial evidence of his intention to give; and where) instead of sending them to her, by express as he had intended, he took them to the home of another sister and in her presence gave them to the designated donee, and then took them to a safety deposit box, where she found them a week later and where they remained for six months, when he borrowed them from her and by letter to her and by statements made to others ad-1 mitted he had borrowed them, there is sufficient evidence of delivery, to support a verdict that the gift was complete, both as to intention and delivery.
    4. -: Self-Serving Testimony. Declarations or admissions of a donor as to the fact of delivery and as to his intention are admissible to support an alleged gift, but not to impeach his gift. Letters written or statements made by decedent subsequently to the time he made a gift of bonds to his sister, offered for the purpose of showing he had not given them to her, are self-serving and are not competent for that purpose.
    5. -; -: Explained By Other Witnesses. A witness having testified that decedent declared he wished to return the bonds he had borrowed from his sisters, it was not error to refuse to permit another witness, who was present when the declarations were made, to testify that decedent said he was returning the bonds to his sisters for his own use, so that he might use them in case of necessity, because the proffered testimony was self-serving and could not be used to defeat the gift previously made.
    6. -: Hearsay. Statements made by decedent, at the time he wrote a letter to his sister in which he distinctly declared he was giving and sending her certain bonds, as to why he was writing the letter, were pure hearsay, self-serving and incompetent, when offered by his administratrix.

      7. -: Conclusion. • Testimony as to why decedent turned to a diary at the time he wrote, the letter of gift is a conclusion of the witness, and incompetent.
    8. -: Instructions. Instructions set out in the opinion embodied correct principles of law applicable to gifts inter vivos.

    9. -: Limitations: Five Years. An action of assumpsit brought by a sister in January, 1914, against the donor’s administratrix, for the value of bonds given to-her by her brother in October, 1907, and by him borrowed from her in March, 1908, and never returned, where the evidence shows the doner and donee had mutual' dealings in regard to the bonds up to and including 1911, was not barred by the five-year Statute of Limitations.
    Appeal from Jackson Circuit Court. — Hon. Harris Robinson, Judge.
    Affirmed.

      William G. Holt, Haff, Meservey, German & Michaels and Beardsley & Beardsley for appellant.
    (1) There was no proof of a gift from G-eorge Townsend to the plaintiff of the 40 Water bonds and therefore the court should have directed a verdict for defendant, (a) Giving all possible weight to the testimony offered on plaintiff’s behalf, there was no proof whatsoever of a delivery of the bonds in October, 1907. Tomlinson v. Ellison, 104 Mo. 105; In re Estate of Soulard, 141 Mo. 642; McCord’s Admr. v. McCord, 77 Mo. 166; Burchett v. Fink, 139 Mo. App. 381; Walter v. Ford, 74 Mo. 195; Harris Banking Co. v. Miller, 190 Mo. 640; Jones v. Falls, 101 Mo. App. 536; Pennell v. Ennis, 126 Mo. App. 355; Doering v. Kenamore, 86 Mo. 588; Citizens Nat. Bank v. McKenna, 168 Mo. App. 254; Gray v. Doubikin, 188 Mo. App. 667; Chambers v. Mc-Creery, 106 Fed. 364; Basket v. Hassell, 107 U. S. 602; Eeynolds v. Hanson, 191 S. W. 1030; Liebe v. Battman, 33 Ore. 241, 54 Pac. 179; Knight v. Tripp, 121 Cal. 674, 54 Pac. 267; Apache State Bank v. Daniels, 32 Okla. 121, 121 Pac. 237; 20 Cyc. 1234; 2 Kent. Com. 556; Newman v. Bost, 122 N. C. 524, 29 S. E. 848; Bauernschmidt v. Bauernschmidt, 97 Md. 35, 54 Atl. 637; Millard v. Millard, 221 111. 86, 77 N. E. 595; Foley v. Harrison, 233 Mo. 460. (b) The whole record shows that George Townsend never intended to make any gift .of bonds to his sister in October, 1907; that the bonds in question were never treated by him or by her -as having been so given and the attempted proof of a gift falls far short of the character of proof required to support gifts- inter vivos. Foley v. Harrison, 233 Mo. 460; Northrip v. Burge, 255 Mo. 653; Denny v. Brown, 193 S. W. 552. (2) The alleged declarations of Townsend made to his relatives and partner subsequent to October, 1907, are valueless and ineffectual, because there had been no proof of delivery, and therefore the trial court should have disregarded them in passing on the demurrer to the evidence. Chambers v. McCreery, 106 Feb. 364. (3) The court erroneously excluded letters and statements of Townsend made or written subsequently to October, 1907, showing that he had not given any bonds in 1907 to plaintiff. Simms v. Saunders, Harper (So. Car.) 374; Stone v. Stroud, 6 Rich. (So. Car.) 306; Exrs. McKane v. Bonner, 1 Bail. (So. Car.) 113; Caldwell v. Wilson, 2 Spears (So. Car.) 63; Chambers v. McCreery, 106 Fed. 364. (4) The trial court, having permitted one. of plaintiff’s witnesses to relate a particular' conversation with the deceased, should have permitted the other witness who was present to give her version of the same conversation. Harmon v. Insurance Co., 170 Mo.'App. 309; Hodges v. Hill, 175 Mo. App. 441; Gourley v. Callahan, 190 Mo. Ápp. '666; Enyeart v. Peterson, 184 Mo. App. 522; Crawford v. Stock Yards Co., 215 Mo. 416; 16 Cyc. 1039, 1041; Reevs v. Hardy, 7 Mo. 348; Haver v. Schwyhart, 48 Mo. App. 50, 54. (5) The court-erred in excluding the testimony of Mrs. Schaden as to what Townsend said at the time when he wrote the letter which was dated October 25, 1907. Stewart v. Glenn, 58 Mo. 481; McMahon v. Cronin, 128 N. Y. S. 425. (6) The court erred in striking out certain statements of Mrs. Schaden with reference to the writing of the letter dated October 25, 1907. (7) -The court erred in giving instructions “A” and ££B” of its own motion. Black’s Law Dictionary, “Reasonable;” Foley v.’Harrison, 233 Mo. 589; Hunt v. Railroad, 126 Mo. App. 83; Smith v. City of Brunswick, 61 Mo. App. 581. (8) The five-year Statute of Limitation is a bar to plaintiff’s claim. (9) Mrs. Davis was an incompetent witness. See. 6354, R. S. 1909. (10) The finding of the jury in this case that there was a gift, since it has no foundation in fact upon which it can stand, calls for a reversal outright. Beaver v. Beaver, 117 N. Y. 421, 6. L. R. A. 403, 15 Am. St. 531.

      Lynn S. Pease, Walter F. Mayer and II. F. Wieman for respondent.
    (1) The intention of the donor to make a gift is the controlling element and factor to establish a gift. Hamilton v. Armstrong, 120 Mo. 597; Richardson v. Richardson, 148 111. 563; Devol v. Dye, 123 Ind. 321; Weaver v. Weaver, 182 111. 287;. Weber’v. Christen, 112 111. 91; Rumsey v. Ottis, 133 Mo. 85. (2) The admissions, declarations and acknowledgments of the donor are competent evidence to prove any of the essential elements of a gift. Lord v. N. Y. Life Ins. Co., 66 S. W. (Tex.), ■ — ■; Crouse v. Judson, 84 N. Y. S., 755; Grangiac v. Arden, 10 Johns. 293; In Re Townsend, 5 Dem. Sur. 147';' Estate of Soulard, 141 Mo. 642; Bank v. Miller, -190 Mo. 640; People v. Benson, 99 111. App. 325; Sparling v. Smeltzer, 133 Mich. 454; Jacques v. Fourthman, 137 Pa. St. 428; Weaver v. Weaver, 182 111. 287; Dehm v. Dehm, 86 111. App. 479; Brandon v. Dawson, 51 Mo. App. 237. (3) The delivery of the gift as a manifestation of the intention of the donor may be actual, constructive or symbolical. Delivery may be made to a third person to be "by him delivered to the donee. Reese v. Pliila. Trust Co., 218 Pa. 150; Hamilton v. Armstrong, 120 Mo. 597; Hageman v. Hageman, - 90 111. App. 251; Devol v. Dye, 123 Ind. 321; People v. Benson, 99 111. App. 325; Shackleford v. Brown, 89 Mo. 546; Sneathen v. Sneathen, 104 Mo. 201; Bickford v. Mat-tacks, 95 Mo. 547; Grangiac v. Arden, 10 Johns. 293; Hall v. Hall, 76'Kan. 806; Seavey v. Seavey, 30 111. App. 625; Telford v. Patton, 144 111. 619; Williams v. Latham, 113 Mo. 165; Waite v. Grubbe, 43 Ore. 406; Mnir v. Gregory, 168 Fed. 641; Hess v; Iiartwig, 83 Kan. 592; Marsh v. Fuller, 18 N. H. 360; In Re Palmer’s Estate, 102' U. Y. S. 236; Jast v. Wolf, 130 Wis. 37; Bates v. Vary, 40 Ala. 421; Sparling v. Smeltzer, 133 Mich. 454. (4) The donor may hold the subject of the gift, constructively deliver the property to himself for the donee and thereby put himself in the position of trustee for the donee. ' The donee need not have possession o,f the subject of the gift. Harris Bank v. Miller, 190 Mo. 640; Mize v. Bank, 60 Mo. App. 358; Hamilton v. Armstrong, 120 Mo. 597; Yokem v. Hicks, 93 111. App. 667; Martin v. Funk, 75 N. Y. 134; Grangiac v. Arden, 10 Johns. 293; Trowell v. Carroway, 10 Heisk. 104; Dressen v. Dressexi, 46 Me. 48; Bants v. Ellis, 17 Beav. 121; Gamian v. McGuire, 160 N. Y. 476 ; Crouse v. Jndson, 84 N. Y. S. 755. (5) The questions of intention and delivery are exclusively within the province of the jury. The jury may presume intention and delivery from the facts and circumstances, admissions, declarations axxd acknowledgments of the donor. Reynolds v. Hanson, 191 S. W. (Mo.) 1030; Fair v. Wynne, 155 Mo. App. 34Í; Sparling v. Smeltzer, 133 Mich.’ 454; Jacques v. Fourthman, 137 Pa. St. 428; Clough v. Clough, 117 Mass.' 85; Hunt v. Hunt, 119 Mass. 474; Keeney v. Hen-, rick, 148 Pa. St. 223; Sprouse v. Littlejohn, 22 S. C. 358; Grangiac v. Arden, 10 Johns. 293. (6) The appellate court will not weigh the evidence and set a verdict aside as against the weight of the evidence. Reynqlds v. Hanson, 191 S. W. (Mo.) 1030; Shackleford v. Brown, 89 Mo. 546. (7) Mrs. Davis was a competent witness. Snider v. McAtee, 178 S. W. (Mo.) 484; McKee v. Downing, 224 Mo. 115; Cole v. Waters, 164 Mo. App. 567; Morvell v. Cooper, 155 Mo. App. 445; Weiermueller v. Scullin, 203 Mo. 467; Gray v. Donbikin, 188 Mo. App. 667. (8) Conversations with and letters written by the deceased which were not declarations or admissions against interest are not eompetént evidence. Baker v. Baker, 43 Ind. App. 26; Hitt v. Hitt, 131 S. W. (Mo.) 369; Dalby v. Maxfield, 244 111. 214; Tyler v. Wright, 164 Mich. 606; Reese v. Trust Co., 218 Pa. 150; Church v. Comb’s Ex’r, 113 S. W. (Ky.) 119; Mahan v. Schroeder, 142 111. App. 538; Dillivan v. Savings Bank, 124 N. W. (Ia.) 350; Driscoll v. Driscoll, 143 Cal. 528. (9) The court properly instructed the jury that “the plaintiff must prove to your reasonable satisfaction by the greater weight of all the credible evidence,” etc. Jones v. Park, 101 Mo. App. 536; Reynolds v. Hanson, 191 S. W. (Mo.) 1030. (10) The five-year Statute of Limitations does not apply in this case.
   RAILEY, C.

This action was commenced in the probate court of Jackson County, Missouri, on January 8, 1914, in the following form:

“Estate of George Townsend, deceased, to Cornelia Townsend, debtor,

.“To one hundred shares of the Central States Bridge Company, par value one hundred dollars ..................................... $10,000

“To thirty-two bonds, Citizens Street Railway Company, Indianapolis, par value one thousand dollars ............................ 32,000

“To eight water bonds, City of Indianapolis, Indiana, par value one thousand, dollars . 8,000

“Total .................................$50,000”

Before the case was finally submitted to the jury, plaintiff reduced her demand for the par value of the thirty-two Citizens Street Railway Company bonds, of Indianapolis, Indiana, from $32,000 to twelve of -said bonds of the alleged value of $12,000. She also withdrew from the consideration of the jury, as shown by her instruction “D,” that part of her claim relating to the one hundred shares of the Central States Bridge Company, of the alleged value of $10,000.

Prom the judgment of the probate court in favor of defendant, plaintiff appealed to the circuit court, where the case was tried de novo, at the November Term, 1914, before a jury. The trial began on January 5, 1915, and thereafter resulted in a verdict for plaintiff in. the sum of twenty thousand dollars, upon which judgment was entered in due form.

There was substantial evidence offered upon the part of plaintiff tending to show that George Townsend, who was a brother of plaintiff, on or about the 25th day of October, 1907, had met with success as a railroad builder, and had accumulated at that time valuable bonds and notes of the face value of $250,000; that he and plaintiff were twin sister and brother, and that for many years» they made their home with their sister, Mrs. Anna Townsend Davis; that plaintiff and her brother George were dear to each other, and traveled a great deal together.

Plaintiff introduced in evidence her Exhibit 6, shown to have been in the handwriting of George Townsend, which reads as follows:

“Indianapolis, Oct. 25, ’07.
“My dear Sisters:
“I have this day paid off my loan at the Fletcher Bank and am not now honestly in debt to anyone in the world and I am entirely out of business. I have now in my safe deposit box at Fletchers, 150 Indpls Water, Citizens Ry and other bonds paying me 5% interest, besides 100 New Orleans Ter. Notes in the 1st Natl Bank of N. Y. and other investments, and so I have decided to carry out my long promised intention made so often to you and Nellie of adding to the bonds you already have so that you will both be provided for should bad luck come to me or in case of my marriage and so I will.today take with me or send to you in Chicago, as a present sixty (60) of the Water and Citizens bonds, Forty (40) of which will be for Nellie and twenty (20) for Anna, because Nellie is more dependent on me than you are. You must take good care of these bonds and do not change the investment into other bonds or stock without first advising with me. These bonds all pay 5% per annum; the water bonds sell around par and the Citizens sell a few points higher but I consider them equally safe as an investment. You can divide the two binds as you see fit so that Nellie gets a total of 40 and you get the 20. I take pleasure in doing this as it will still leave me a sufficient income.
“Love to you both,
Brother George.
“This is a list of the numbers of the bonds I am giving you so in case anything happens in transit payment might be stopped. The 40 Water bonds numbers 76, 77, 196, 311, 312, 352, 1413, 1885, 1942 to 46, 1975 to 79, 2011, 2013, 2013, 2094, 2096, 2097, 2107 to 11, 2134. 2135, 2144, 2145, 2148 to 53 and '2202. The 20 Citizens bonds are numbered 6, 24, 25, 26, 27, 133, 134, 142 to 145, 284, 290, 393 to • 397, 402 and 403,
Georoe.
“Since writing the above I find it is too late to express these bonds and catch my train so I will leave them here at Fletchers and put a slip in the pkg of 40 water bonds as being the private property of Nellie and a slip in the pkge of 20 Citizens bonds as being the property of Anna and I will either continue to hold them here for you or send them to you at a later date.
Yours,
George.”
A book was identified by Mrs. Davis, as a diary of George Townsend, and in his handwriting, under dates of October 24-5-6. It was introduced in evidence, and read as follows:
“(October 24th.)
“Arrived in Indianapolis at 3:05 p. m.
“Took dinner with Mrs, Schaden.
“Took room at Columbia Club.
“(October 25th.)
“Paid Fletcher my last loan and put 35 Water, 15 Citizens 30 N. W. & 10 U. T. bonds in my deposit box. Took 40 Water & 20 Citizens as a present to my Sisters in Chicago. Arrived home at 8:00 p. m.
“(October 26th.)
"Gave Sister Nellie 40 Water bonds and to Sister Anna 20 Citizens. Had hair cut in the p. m. Played cribbage at home in the evening with the folks.”
Mrs. Davis identified “Exhibit 8” as in the handwriting of her brother George, and says she received it through the mail. It was offered in evidence and reads as follows:
“Grand Hotel,
Indianapolis,
January 3rd, 1910
“My dear Sisters:
“It is with a feeling of great relief that I am sending back to you today by Am. Express thirty-two of the $1,000 bonds of the Citizens 5.s Street Ry. being a part of the 60 bonds that I took from those belonging to you in the safety deposit box in Chicago.
“I will send you 18 more bonds tomorrow and the remaining 10 bonds shortly.
“I want Nellie to receive back these 32 bonds and Anna can take her 20 out of the remainder I am to send.
“I trust you will forgive me for having taken the 60 bonds away from you against your protest. Please put these 32 bonds in a box in your own names.
With love,
George.”

Mrs. Davis testified that the 32 bonds referred to in above letter were delivered to herself and plaintiff; that she handed them to George Townsend and they were pnt in the box. This occurred some time in December, 1909, or early in January, 1910; that these 32 bonds, in September, 1911, were sent by her to defendant for George Townsend; that this was the last time she ever saw them; that she could not give the exact date when she received Exhibit 6, supra, nor whether she had it in her possession before the death of her brother George; that she found it in the desk at home with other papers within the last year. Witness said her brother George felt grieved over plaintiff’s health, and gave her seventeen bonds for her immediate -wants, and said he would add'three more to them, and that he would have that amount taken from the will; that plaintiff still has the seventeen bonds.

■ On cross-examination, Mrs. Davis testified that her brother George was a railroad builder, and had built many railroads; that he was a careful and successful business man; that he engaged in building railroads in Indianapolis, Michigan and the Holy Land; that he also built part of the Canadian Pacific road; that the first time she recalls having seen Exhibit 6 was in May, 1910; that it was then in her husband’s desk in her room; that her brother George was very ill in January and Febuary, 1910, and went to a sanitarium; that he had a nervous breakdown; that plaintiff never had any bonds prior to October 25, 1907.

Mrs. Davis testified in chief that in October, 1907, her brother George came to her house, and in the presence of plaintiff said he had brought to Cornelia forty Water bonds, and twenty for her; that they thanked him, and he then said they should be taken right over to the safe deposit; J:hat the above occurred about 8:30 o’cldck in the morning; that she did not see the bonds, but simply the package; that he took them out of his satchel, put them in his pocket, and left; that she did not see the bonds until about one week after-wards, when she saw them in the box at Commerce Safety Deposit Company; that she had access to the box; that she had two boxes, and had the only key to each box at that time; that she had had the key since 1905; that when she went to the bank about one week after the above conversation, she then saw one package containing 40 Water bonds and one containing 20 Indianapolis Railway bonds; that the memorandum on the package was in the handwriting of her brother George. Witness testified that while she and her brother George were in the South, he spoke of the pleasure it had afforded him to have Cornelia provided with an income-bearing fund. This was in January, 1908. The bonds remained in the deposit box until March, 1908, when they were borrowed by her brother.

Ward S. Arnold, former partner of George S. Towsend, met the latter in Chicago in March, 1908. He testified that George then told him that “he had given his sisters a considerable amount of bonds, and that to raise the amount of money that would be required he would have to borrow these bonds back.” He said, George then told him that “he had given Cornelia a considerable sum, more than his sister, Mrs. Davis, due to the fact that she was single and had no one to help look after her, like her other sister, Mrs. Davis.” etc.

Wm. B. Totonsend testified that in September, 1908, his brother George told him that “he had presented his sisters with enough bonds to keep them comfortably until the end of their lives.” He said he was then in condition to do so. On cross-examination, witness said George told him in 1909 he had provided for his brothers and sisters in his will and that he was worth $250,000 to $300,000. He said that George talked with him during the last days of December, 1909, and told him he was going to Indianapolis and get the bonds that were there, buy some more, and replace some he had borrowed; that he was afraid he would die and not leave them in possession of his sisters.

Edward Waterman Townsend testified that near the end of the year 1907 his brother George talked with him about Cornelia; that he then said, he had provided by gift, a provision which would provide means of a living for his. sister.

The testimony of Mrs. Davis tends to show that George Townsend borrowed from her sister, Cornelia, the 40 bonds of plaintiff and took them with him. Witness said she never saw the bonds after that, but she got the 32' Citizens Street Railway bonds from the bank; that they were sent by express from her brother George, for Cornelia. These are probably the bonds referred to in Exhibit 8, heretofore quoted. Mrs. Davis said her sister Cornelia protested against her brother George going into business again, on account of his health, but told him “the bonds are here safe and we are perfectly willing to lend them to you, but we merely protest on account of your health,” and he said he would take them with him.

We have simply set out enough of ‘the testimony to show that plaintiff’s demand is sustained by substantial evidence relating to the main issues before us. Some of the foregoing facts are controverted by testimony elicited on behalf of appellant.

The instructions given and refused, and such other matters as may be deemed important, will be 'considered in the opinion.

On January 12, 1915, nine of the jurors returned a verdict in favor of plaintiff, for $20,000, and judgment was entered in due form thereon. Motions for new trial and in arrest of judgment were filed, overruled, and the cause duly appealed by defendant to this court.

I. It is claimed that at the conclusion of plaintiff’s evidence, and at the conclusion of the whole case, defendant’s demurrer thereto should have been sustained.

We have shown from the preceding statement that respondent was well fortified at the trial with substantial evidence tending to prove the main issues in the case. As this is an action at law, it ^ n'0^ the province of the court to pass upon the weight of the evidence. [Minor v. Burton, 228 Mo. 1. c. 564; Slicer v. Owens, 241 Mo. 1. c. 323; Abeles v. Pillman, 261 Mo. 1. c. 376; Buford v. Moore, 177 S. W. (Mo.) 1. c. 872; Kille v. Gooch, 184 S. W. 1. c. 1160; Truitt v. Bender, 193 S. W. (Mo.) 839; Coulson v. La Plant, 196 S. W. (Mo.) 1. c. 1146.]

The trial court was within the law in overruling the above demurrer.

II. The trial court is charged with error in permitting Mrs. A. T. Davis to testify as a witness in behalf of plaintiff. It is conceded that she has a similar suit against the same defendant now pending in Division Two of this court.

It is contended by appellant that there was no gift of the bonds to either Mrs. Davis or plaintiff, on October 26, 1907, but that, if there was a valid delivery of the bonds, under the circumstances heretofore set out, it was a joint gift, which took place as part of a single transaction, and, hence, rendered Mrs. Davis an incompetent witness, under the statute, as her brother was then dead. On the other hand, it is contended by respondent that the correspondence read in evidence, in connection with the other facts, and what occurred on1 October 26, 1907, constituted separate gifts of different bonds. That is to say, the 40 Water bonds were intended for plaintiff, and the 20 Street Railway bonds for Mrs. Davis.

Let us assume for the sake of the argument that decedent, in the same transactions, intended to give and did give 40 of the Water bonds to plaintiff and the 20 Railway bonds to Mrs. Davis. On this state of facts, if said bonds had passed into the hands of defendant upon the death of George Townsend, it is plain that each of said donees could have recovered the possession of her respective bonds in an action of replevin. Even if the 60 had all been Water bonds, of 'the same value, plaintiff could have maintained an action of replevin for 40 of same, and Mrs. Davis could have recovered the remainder. [In re Estate of Largue, 267 Mo. 1. c. 116-17, 183 S. W.1. c. 611.]

The question under consideration recently came before Division Two of this court in Snider v. McAtee, 178 S. W. 484. It appears from the opinion that Mr. Sperling was offered as a witness in behalf of plaintiff. Defendant objected to his testifying in the cause, on ground that he, Mr. Snider, and Mr. Schwab, were all parties .to the same contract with Mr. .Quinn, and that, as Quinn was dead, Sperling was' incompetent to testify by reason of the provisions of Section 6354, Revised Statutes 1909. Judge Williams wrote the opinion, while a Commissioner, in which all the members of said Division concurred. On page 488, he said:

“We have reached the conclusion that the witness was not’ a party to the contract or cause of action in issue and on trial in this case. The evidence shows that all of the three purchasers were present in the bank at the time Quinn sold the 65 shares of stock. But it appears, we think, clearly, from the evidence, that, before the sale was made, each purchaser, for himself, decided upon the number of shares he would purchase. The transfer of the stock was made separately to each individual purchaser, and each purchaser respectively paid Quinn for the shares so purchased.”

It was held that Sperling was a competent witness, under the circumstances aforesaid. ,

In the ease at. bar, it appears from the diary kept by George Townsend, under date of October 26, that he “gave Sister Nellie 40 Water bonds and to Sister Anna 20 Citizens.” While he usually addressed his sisters jointly, it is manifest from what lie said,- and did, that he was making separate and distinct gifts to each, and that neither had any interest in the bonds intended for the other.

The question under consideration is similar in principle to that involved in the Snider ease, supra. The rule as announced in the -latter meets with our approval. There is nothing contained in Section 6354, Eevised Statutes 1909, which would warrant us in excluding Mrs. Davis as a witness in this cause, on the record before us.

III. It is contended by appellant that:

“There was no proof of a gift from George Townsend to the plaintiff of the 40 Water bonds and therefore the court should have directed a verdict for defendant.”

The testimony heretofore set out indicates a clear intention upon the part of George Townsend on October 25, 1907, to give plaintiff 40 of his Water bonds. Without repeating the testimony, it is plain that the jurors had before them substantial evidence, tending to establish the following facts: That on October 25, 1907, George Townsend fully intended to give plaintiff 40 of his Water bonds; that he took said bonds with him to Mrs. Davis’s house on October 26, 1907, and told plaintiff in the presence of Mrs. Davis that he had brought her the 40 bonds; that he gave them to her, and took them to the safety deposit box; that one week thereafter, plaintiff and her sister found the bonds at the bank; that one package contained 40 Water bonds and the other package 20 Eailway bonds; that the 60 bonds remained in the bank until March, 1908, when George Townsend borrowed them from plaintiff and her sister; that he never returned the same; that on January 3, 1910, he wrote Exhibit 8, heretofore set out, in which he admitted the receipt of said bonds, and that they belonged to plaintiff and Mrs. Davis. In Exhibit 8,, he further stated:

“I want Nellie to receive back these 32 bonds and Anna can take her 20 out of the remainder I am to send.

“I trust you will forgive me for having taken the 60 bonds away from you against your protest.”

Where the facts are known and unquestioned, and where but one conclusion can be drawn therefrom, the court may, as a matter of law, on the evidence adduced, declare that no delivery has taken place. The law, however, as applied to facts like those before us, is forcefully stated in 12 Ruling Case Law, sec. 46, pages 974-5, as follows:

“The question as to what constitutes a gift is a question of law, and on facts in a particular case it involves a mixed question of law and fact. On the testimony it is the province of tbe jury to determine whether there was a clear intention to make a gift, and whether that intention was1 carried into effect by such a delivery ás would make a completed gift. This is so as to a gift causa mortis as well as to one inter vivos.”

The rule above announced is substantially in accord with the views of this court as heretofore expressed. [Harvey v. Long, 260 Mo. 1. c. 386, and cases cited; Schooler v. Schooler, 258 Mo. 1. c. 91-2; Miles v. Robertson, 258 Mo. 1. c. 724, and. following; Burke v. Adams, 80 Mo. 1. c. 511; 8 Ruling Case Law, sec. 50, page 980.]

In the Burke case supra, Judge Philips, while a Commissioner of this court, on page 511, very clearly stated the law as applied to the facts of this case, as follows:

“What constitutes a delivery of. a deed is often a mixed question of law and fact. An arbitrary rule ought not to be laid down. Each case must stand more or less on its peculiar facts. The intent to convey is evidenced by the act of making out and duly executing and acknowledging a deed. The delivery may be evidenced by any act of the grantor by which the control, or dominion, or use of the deed is made available to the grantee. It is not necessary that it should be handed over actually to the grantee, or to any other person for him. It may he delivered under certain circumstances, though it remain in the possession of the maker. "Where, however, there is not an actual transfer from the grantor to the grantee, it should affirmatively appear from the circumstances, acts or words of the parties, that the intention to pass the title really existed.”

In the case at bar, there is abundant evidence of an intention upon the part of George Townsend to deliver the 40 Water bonds to plaintiff. The testimony shows: He had withdrawn these bonds from the bank to deliver to her; that he formally declared he had brought them to her; that he exercised proper care in not leaving such a large amount of securities in her hands, but took them to the custodian of the vault for her; that she got them from the vault within a week afterwards, and they remained there until her brother borrowed them from her, and never returned the same. He recognized, in writing, her ownership of the bonds, and replaced 32 of the 40, with Railroad bonds. On this state of facts, the jury were warranted in finding that the 40 Water bonds were given to plaintiff, and in contemplation of law, were delivered to her.

(a) In 12 Ruling Case Law, sec. 45, pages 973-4, it is written:

“Declarations of the donor, especially if repeatedly made, are sufficient on which to establish a title by gift, and declarations of a donor that he had delivered a gift are sufficient evidence of its delivery, particularly where he had previously expressed his intention to give, and was under a moral obligation to make the gift.”

(b) We have carefully considered the law relating to the question of delivery, as shown by the authorities cited in Wren v. Sturgeon, 184 S. W. 1. c. 1038-9, where we held that no delivery was shown by the evidence. Without considering the question further, we are of the opinion that the trial court committed no error in overruling appellant’s demurrer to the testimony, in respect to above matter.

IY. Appellant claims, that “the- court erroneously-excluded letters and statement of Townsend made or written subsequent to October, 1907, showing that he had not given any bonds in 1907 to plaintiff.”

If any such letters were written, or statements made by George Townsend, subsequent to October, 1907, and'they were offered in evidence for .the purpose of showing that he had not given any bonds in 1907 to plaintiff, they were properly excluded as self-serving declarations and incompetent for that purpose. [O’Day v. Annex Realty Co., 191 S. W. (Mo.) 1. c. 46 and cases cited; 12 R. C. L. Section 43, p. 971; Tyler v. Wright, 164 Mich. 606; Dalby v. Maxfield, 244 Ill. 214; Reese v. Trust Co., 218 Pa. 150; Driscoll v. Driscoll, 143 Cal. 528; Baker v. Baker, 43 Ind. App. 26; Dillivan v. German Savings Bank, 124 N. W. (Ia.) 350.]

In O’Day v. Annex Realty Co., 191 S. W. 1. c. 46, in considering this question, we said:

“Aside, however, from the foregoing potent objection to a single page of this diary being considered as competent evidence we find that the contents of same does not purport to be an' admission contrary to the interests of defendants and M. B. O’Reilly. On the contrary, this diary was offered for the express purpose of overturning 'the constructive trust sought to be established by plaintiff- on May 26, 1898, when the quitclaim deed was delivered. It was also offered to show that an entirely different agreement had been made from that claimed by plaintiff, and which was more favorable in its terms to O’Relliy and the defendants. The cases relied upon by respondents hold that the' admission of a .party, against his interest when made, may, under certain circumstances, be given in evidence, but they have no application to the' facts of this case, for the reasons aforesaid. On the contrary, the page of diary offered in evidence must be classed as a self-serving declaration of M. B. O’Reilly ' and inadmissible for any purpose. [Laclede Land & Improvement Co. v. Goodno, 181 S. W. 1. c. 413; Elliott v. Sheppard, 179 Mo. 1. c. 390, 78 S. W. 627; Wilcoxson v. Darr, 139 Mo. 1. c. 673, 41 S. W. 227; Coombs v. Coombs, 86 Mo. 1. c. 178; Manion Blacksmith Co. v. Carreras, 19 Mo. App. 162; Gregory v. Jones, 101 Mo. App. 270, 73 S. W. 899.]'”

In 12 Ruling Case Law, sec. 43, page 971, the rule of law in respect to this matter, is stated as follows:

“The declarations or admissions of a donor as to the fact of delivery and as to his intention are admissible to support an alleged gift, but not to impeach his gift.”

The above contention is clearly without merit and is overruled.

V. Appellant insists that “the trial court, having permitted one of plaintiff’s witnesses to relate a particular conversation with the deceased, gbould have permitted the other witness who was present to give her version of the same conversation. ’ ’

The above contention is b'ased upon the testimony of William R. Townsend, who testified, in substance, that in September, 1907, George Townsend, in a conversation with his secretary, said if he collected ,a certain sum of money from Wyandotte County he would go to Indianapolis, take up thirty-two bonds, purchase eighteen more, and give them to his sister. This testimony was stricken out, and the witness corrected his evidence by stating the following:

“A. I certainly knew they were borrowed bonds.

“The Court: You say you knew? A. He said he wished to return the bonds he had borrowed from his sisters. I think the total was more than that. . . .

“He was very glad that he was able to return to his sisters fifty of the bonds that he had borrowed from them. ’ ’

The defendant testified that she did not think William R. Townsend heard the conversation; and that the above conversation, testified to by William R. Townsend, did not occur.' Her counsel then sought to prove by her that George Townsend said he was returning certain bonds to his sister for his own use, so that he might use them in case of necessity. This offer was obtained to as incompetent, because it was a self-serving statement and could not be used to defeat the gift. The other testimony sought to be elicited-from her related solely to a self-serving declaration of George Townsend, and under the authorities heretofore quoted from was incompetent and properly excluded. This contention is likewise without merit.

VI. The trial, court is charged with error in “excluding the testimony of Mrs. Schaden as to what Mr. Townsend said at the time when he wrote the letter which was dated October 25, 1907.” The letter re£erre(j †0 jg Exhibit 6, set out in the statement. Defendant testified that this letter was written in 1909, and not in October, 1907. She was then asked the question: “Did Mr. Townsend make any statements to you at the time he wrote that letter as to why he was writing that letter?” The testimony sought to be elicited, was purely hearsay, self-serving in character, and clearly incompetent.

VII. The court is charged with error “ in striking out certain statements of Mrs. Schaden with re£erenee †0 writing of the letter dated October 25, 1907.”

The question propounded reads as follows: “Q. State to the jury what he [Townsend] did. A. At the time he asked me for the letterhead, he asked me to get the diary in an old suitcase and he turned back to see when he was in Indianapolis and wrote the letter to correspond. with the date.”

Counsel for plaintiff objected to that portion of the above answer, as to why he turned back to the diary, as being a conclusion of the wdtness. The objection Avas sustained, and properly so. She then testified fully as to what she saw him do Avith the' diary.

The above contention is devoid of merit and is overruled.

VIII. Appellant contends, that the “court erred in giving instructions ¡A’ and ‘B’ of its own motion.”

These instruction read as follows:

“A. You are instructed that if you find that George Townsend made a gift as defined in other instructions herein of these bonds to his sister Cornelia, on or about October 26, 1907, then her title to or ownership of said bonds at said time cannot be affected by the subsequent possession of the same by George Townsend nor by his using or selling them.

“B. The court instructs the jury, if you believe from all the evidence that George Townsend made a gift as defined in other instructions herein, of forty Water bonds to his sister Cornelia in 1907, and thereafter on or about the month of March, 1908, borrowed, said bonds from said sister, and that he sold said bonds and returned to her in January, 1910, thirty-two Citizens Street Railway bonds of the par value of $1000 each, instead of thirty-two of those he sold, then the plaintiff is entitled to recover from the defendant in the amount of $1000 for each of the eight bonds not so replaced.”

We are of the opinion that the above instructions properly declare the law in a cas^ of this character, and that they presented both sides of the controversy fairly to the jury. The case of Foley v. .Harrison, 233 Mo. 460, so strongly relied on by appellant, involved the question of donatio mortis causa: The court in that case was not discussing instructions, but the law as applied to that kind of an action. In considering the merits of the case, Woodson, J:, on page 582, said: “It is conceded by all the authorities, that a greater weight of evidence is required in this class of cases than is required in ordinary cases, in order to receive the sanction and approval of the courts of the country. This must be true in the very nature of the transaction, and is based upon a wise public policy.” We have no fault to find with the able and exhaustive opinion in the Foley case, as applied to the facts there considered, but do not deem the rule enunciated therein applicable to the facts under consideration here. The above instructions, are, in our opinion, in line with the principles of law declared in the cases cited under Proposition III, supra. The question now raised in reference to said instructions “A” and “B” appears to have been an afterthought, as defendant, in her instructions five and six, refused by the court, presented no such issue.

• The foregoing contention of appellant, is not well founded and is accordingly overruled.

IX. It is insisted by defendant that “the five-year Statute of Limitations is a bar to plaintiff’s claim.” There is no merit in this contention. The evidence shows that plaintiff and her brother, Qeorge q'ownserL(jj had mutual dealings in regard to these bonds up to and including 1911. This suit was brought January 8, 1914, as an action in assumpsit, for the value of the bonds loaned to George Townsend by plaintiff and which' were used by him in his business. [Henderson v. Koenig, 192 Mo. 1. c. 709 and cases cited.] There was no testimony adduced at the trial which would have warranted the jury in finding that the five-year Statute of Limitations had barred plaintiff’s right, of recovery.

X. We have carefully examined all the questions presented for our consideration. Some of the authorities cited by appellant upon the subject of gift, relate to testamentary disposition and are not in ' P°mt- In many of the cases cited upon the subject of delivery, there was no substantial evidence of delivery shown. In still other cases relied on the donors expressly reserved title, and dominion.

We are satisfied with the legal principles heretofore considered, which should govern this case. Finding- no errors in the record of which defendant can legally complain, we affirm the judgment.

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

All of the judges concur, except Woodson, J., not sitting; Bond, P. J., concurs in result.