author: WHITE, C. PER CURIAM:

text:
    W. E. EDMONDS, Appellant, v. ADOLPH SCHARFF et al., Appellants.
    Division Two,
    July 5, 1919.
    1. EES ADJUDICATA: Ejectment: Voluntary Conveyance: Former Appeal. While a judgment in ejectment is not res adjudieata as to any issue determined therein, the doctrine announced on an appeal from such judgment is an authoritative statement upon the law as applied to the facts therein presented; hut a finding by the trial court that a certain deed from a husband to his wife, recitiñg a nominal consideration, was voluntary and void as to creditors, there being no showing that it was in fact supported by a valuable consideration, is not res adjudieata in a subsequent suit in equity in which a valuable consideration is asserted.
    2. WITNESS: Competency: Other Party Dead: Agent. A woman, whose son-in-law is dead, cannot testify that he owed her notes to the amount of three hundred dollars and that she bought from him the lots in suit and had him deed them to his wife and that the notes were the actual consideration for the deed, which recited a consideration of one dollar. She was not the agent of the wife, hut a party to the original contract, for the transaction is precisely the same as if she had purchased the lots, had the conveyance made to herself and subsequently conveyed to the wife; and under the statute (Sec. 6354, R. S. 1909), the son-in-law, “the other party to such contract,” being dead, she is incompetent to testify' in favor of the wife, of any person claiming under the wife.
    3. CONVEYANCE: Nominal Consideration: Voluntary: Correcting Mistake. If no witness competent to testify is produced to show that a deed from the husband to his wife was supported by a valuable consideration, a recital therein that it was for a nominal consideration prevails, and it must be adjudged void as to his existing creditors, and neither the wife nor her grantees can maintain a suit in equity against them to correct a mistake in it.
    4. DISQUALIFICATION OF JUDGE: Judgment of Dismissal: Void Execution. A judgment rendered by a judge not authorized to hear or determine a ease is subject to collateral attack; and where á cause was submitted to a special judge and by him taken under advisement, and one of the counsel in the case afterwards became the regular circuit judge, a subsequent judgment of dismissal rendered by such regular judge is void, and an execution for costs and a sale of lands thereunder are likewise void.
    5. DOWER: Mansion House: Limitations. Actions to establish the widow’s dower in her husband’s real estate, unless begun within ten years after his death, are barred by limitations; and the occupation by the widow of the mansion house thereon after her husband’s death is no longer, since the Revision of 1889, an exception to the unqualified language of Section 391.
    Appeal from Iron Circuit "Court. — Ron. E. M. Bearing, Judge.
    Affirmed in part; reversed and remanded in part.

      J. L. Fort for plaintiff.
    (1) The deed should have heen reformed, as sought in the first count. 7 Cyc. 255, 257; 34 Cyc. 904, 923; 24 Cyc. 57; Campbell v. Johnson, 44 Mo. 249; Jennings v. Brizeadine, 44 Mo. 335; Ford v. Unity Church, 120 Mo. 507; Bryant v. Gammon; 150 Mo. 655; Stroberry v. Walsh, 203 S. W. 291; Swearengin v. Swearengin, 202 S. W. 556; Wilson v. Fisher, 172 Mo. 22. (2) The consideration clause in the deed from Edwards to his wife was open to explanation. Edwards v. Latimer, 183 Mo. 626. (3) The deed from Edwards to his wife was valid against the world and conveyed the equitable title to the wife. Clark v. Thias, 173 Mo. 644; Daniels v. Goeke, 191 Mo. App. 1; Brewer v. Daniel, 198 Mo. 320; O’Day v. Meadows, 194 Mo. 604; Tennison v. Tennison, 46 Mo. 77; Hammons v. Renfrow, 84 Mo. 342. (4)' Mrs. Edwards had a dower interest in this land and that interest has passed to plaintiff. R. S. 1889, secs. 2934, 4514; Phillip v. Presson, 172 Mo. 24; Graham v. Stafford, 171 Mo. 697; Smith v. Stephens, 164 Mo. 422-3; Null v. Howell, 111 Mo. 277; Beard v. Hall, 95 Mo. 16; Robinson v. Wear, 94 Mo. 687;' Sherwood v. Baker, 105 Mo. 478. (5) The judgment in ejectment in the case of Scharff v. McGaugh, constitutes no bar to the granting of any relief to plaintiff, by him sought in this suit. Swearengin v. Swearengin, 202 S. W. 556. (6) The plaintiff has whatever title to the premises in ‘suit that defendants acquired by and through the sheriff’s sale. The record in this case shows that the court had jurisdiction of the subject-matter and the parties in the case in which the judgment for costs was rendered, and the law is 'that the judgment so rendered was a lien upon the real estate of the party against whom it was rendered, situated in the county in which the judgment was rendered. Right action and not wrong action is to be presumed in cases like this. The judgment for costs was not void on its face and its validity has never been assailed in a direct proceeding, but has been assailed in "this collateral proceeding. That judgments, regular upon their face and rendered by a court having jurisdiction of the subject-matter and the parties, cannot be assailed in a collateral proceeding is elementary learning. R. S. 1909, secs. 2284, 2290; Beedle v. Mead, 81 Mo, 304; Cranor v. School Dist., 151 Mo. 127.

      Wilson Cramer for defendants.
    (1) Plaintiff seeks to recover on the same title relied upon by defendant in the case of Scharff v. Mc-Gaugh, 205 Mo. 344. All questions relating thereto were considered by this court in that case and its decision is res judicata. (2) The sheriff’s deed under exetion to plaintiff, dated September 12, 1904, and purporting to convey the interests of defendants, is void and conveys no title, (a) Because the judgment upon which the execution was issued, was rendered by J. L. Fort, then circuit judge, who had been counsel for the defendant in the cause and was disqualified from acting as judge. R. S. 1899, sec. 819. (b) Because at the time of the rendition of this judgment by Judge Fort the cause was still under advisement by Special Judge Bedford, who had tried the same and retained jurisdiction, and Judge Fort had no authority to make any order in the case. (3) .In the fourth count plaintiff seeks to recover the dower interest of M. A. Edwards, widow of George L. Edwards, who died on the 22nd day of July, 1898. The present suit was brought February 5, 1910, as shown by the file marks on the petition and is barred. R. S. 1899, sec. 2979; R. S. 1909, sec. 371; Harrison v. McReynolds, 183 Mo. 533; Investment Co. v. Curry, 264 Mo. 483.
   WHITE, C.

The petition in this suit was filed in 1910 in four counts, each of which seeks to affect the title to lots 10, 11 and 12 of Block 16 in the town of Bernie, in Stoddard County, Missouri. There was a judgment for defendants on counts 1, 2 and 3, and a-judgment for plaintiff on count 4. The parties on both sides appealed.

It is admitted that George L. Edwards was the common source of title; he died in 1895. On December 26, 1892, he conveyed the property to his wife, M. A. Edwards, by direct deed. In the description in that deed lots 10, 11 and 12 were mentioned, but the block number was omitted. The consideration was 'recited to be one dollar. After her husband’s death, in 1897, Mrs. M. A. Edwards. conveyed the property to James L. Port and James B. Buck and her title then passed by mesne conveyances to William McG-augh, who acquired it August 15, 1899. William McGaugh passed the title on by mesne conveyances to the plaintiff, W. E. Edmonds, who acquired a one-half interest in 1900 and the remaining half interest in 1902.

In December, 1892, at the time that G. L. Edwards conveyed the property to his wife, he was indebted to the firm of L. & A. Scharff in the sum of $162.40, for whiskey which he bought September 30, 1892. Suit was brought on this claim before a justice of the peace and judgment for $162.40 obtained January 19, 1893. A transcript of the judgment and proceeding before the justice was filed in the office of the clerk of the circuit court; execution issued, by virtue of which the Sheriff of Stoddard County levied upon and sold the property by correct description, and the same was purchased by L. & A. Scharff for the sum of $120, and conveyance made by the sheriff to them. The Scharffs then brought suit in ejectment against William McGaugh while he was in. possession of the land; the petition was in the usual form and the answer was a general denial. Judgment of the circuit court was rendered in favor of the plaintiffs in that case for possession of the premises. The case was appealed to this court, where the judgment was affirmed. The Scharffs were put in possession in 1907, under a writ of restitution in that case.

Prior to the filing of the suit in ejectment and before the death of G. L. Edwards, L. & A. Scharff had brought suit against Lee Edwards (meaning G. L. Edwards) and M. A. Edwards, the purpose of which was to obtain equitable relief; that is, to set aside the conveyance made by G. L. Edwards to his wife. The suit was subsequently dismissed and costs assessed against the plaintiffs, L. & A. Scharff. Execution was issued . upon that judgment for costs, the property sold by the sheriff and conveyance made to the plaintiff here, W. E. Edmonds.

The petition in this case is in four counts, as stated: The first count sets out the conveyance hy Gr. L. Edwards to his wife with mistake in the description, the subsequent conveyance whereby the plaintiff acquired her title, and prays to have the misdescription corrected and for possession of the premises, against the Scharffs, with an accounting’ for the rents and profits during the time of their incumhency.

The second count of the.petition sets up the title under which the plaintiff claims, the sheriff’s deed under which L. & A. Scharff acquired their interest and the facts that they were in possession, and prayed for a cancellation of the sheriff’s deed, as a cloud upon the title, and an accounting of the rents and profits.

The third count of the petition states a cause of action to determine the title under the statute, Section 2535.

The fourth count alleges the title of Gr. L. Edwards, his death, the right to dower of his widow in the property and her conveyance of the same to the plaintiff.

The answer of the defendant alleges the title by which they acquired their claim in the property under the sheriff’s deed in September, 1893, and sets up the Statute of Limitations in bar of the action for dower as alleged in the fourth count of the petition.

The Circuit Court held the sheriff’s deed to the Scharffs was good, denied plaintiff’s right to relief as prayed in the first, second and third counts, but adjudged that he had a right to the dower of the widow, M. A. Edwards, in the property. Other facts pertinent to the different issues raised in the case will be considered as the questions which they affect arise.

I. The plaintiff’s claim of title as asserted in the •first and second counts of his petition is based on an .assertion of the validity of the deed from G. L. Edwards, to his wife, made in 1892, and Ms • right to have that deed reformed so as correctly to describe the land. The plaintiff proceeds in equity and the question is whether the deed under which he claims gave him such a right as he might enforce against the defendants in a court of equity.

Many of the questions affecting the regularity of the transaction whereby the defendants acquired their title, and some of the questions affecting the validity of the deed of Edwards to his wife, were settled in this court in the case of Scharff v. McGaugh, 205 Mo. 344. It was held by this court in that case that the judgment, and all other proceedings, by which the Scharffs acquired title, were regular. It is true, the judgment being-in ejectment is not res adjudieata here as to any issue determined there, hut the doctrine announced in that case upon the facts presented is an authoritative statement of the law as applied to such facts.

The court there held in the first place that the deed from G. L. Edwards to his wife showed on its face that it was a voluntary conveyance; it recites a consideration of one dollar; that a voluntary conveyance .by a husband to his wife is void as to existing- creditors. The debt to the Scharffs had been incurred and was in existence at the time the conveyance was made. It was also held that Mc-Gaugh, who claimed under Mrs. Edwards, might show there was in fact a valuable consideration for the deed which passed from her husband to her at the time. However, there was a failure of such showing in that case and the finding by the trial court that the deed was voluntary and void as to creditors was sustained. That finding is not res adjudieata here. This being an equity case it becomes necessary to examine the facts to see whether the recited consideration is refuted by a showing that in this ease there was a valuable consideration.

Mrs. Edwards, who had married again and appeared under the name of M. A. Ashworth, swore that her mother, a Mrs. Summers, loaned her husband a considerable sum of money, for which her mother held his notes, and surrendered these notes to G. E. Edwards on execution of the deed to his wife. Mrs. Summers testified that she bought the land from G. L. Edwards, paid him three hundred dollars for it; that he owed her some notes and she gave him the notes for the lots, and had the deed made to her daughter. This same evidence was offered in the case of Scharff v. McGaugh, and was considered as part of the case, for the reason that there was no ruling by the trial court as to whether it was competent or incompetent.

It is claimed here that the evidence is incompetent. The plaintiff admits the testimony of the widow, Mrs. Ashworth, iformerly Mrs. EdAvards, is incompetent,, because she was a party to the transaction; that is, a party to the conveyance which is immediately the subject of the action here; her husband, the other party to the transaction, being dead. But the competency of Mr. Summers is asserted by the plaintiff, who claims that she was the agent of her daughter in procuring the property from the daughter’s husband. Plaintiff cites in support of this position the ease of Clark v. Thias, 173 Mo. 628, where it is held that the agent who transacts the business Avith a party since dead is competent to testify as to the transaction. The propriety of that ruling has been seriously questioned in later cases. [Griffin v. Nicholas, 224 Mo. 275, l. c. 326-7; Bone v. Friday, 180 Mo. App. 577; Taylor v. George, 176 Mo. App. 215; Green v. Ditsch, 143 Mo. l. c. 8; Chas. Green Real Estate Co. v. Building Co., 196 Mo. l. c. 370.]

However, the question of whether an agent conducting a transaction may afterwards testify, when the other party to the transaction is dead, hardly enters in this case Mrs. Summers was not the agent of her daughter; according to her own testimony as she gives it, she was herself the original party to the contract. Speaking of G. L. Edwards, she testified: “I bought some lots in Bernie from him and paid him about three hundred dollars for them. He owed me some notes which I had been trying to collect for a long time and he gave me the lots for the notes. I had the deed made to .my daughter, M. A. Edwards. . . . The notes I turned over to G. L. Edwards for these lots, and they were canceled at the time, and I gave him a receipt for the account he owed me.”

The effect of the transaction as she describes it is precisely the same as if she had purchased the lots and had the conveyance made to herself and subsequently had conveyed to her' daughter. She is a party to the original contract or cause of action. The wording of the statute completely covers her case, Section 6354, Revised Statutes 1909. The provision is this: “Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of another party to the action claiming under him.”

It was held in the case of Chapman v. Dougherty, 87 Mo. 617, that the “disability of one of the original parties to the contract or cause of action, in issue and on trial, where the other party is dead, and the survivor is a party to the suit, is co-extensive with every occasion where such instrument or cause of action may be called in question.” That case is a leading case and is cited and approved in many later cases. [Goodale v. Evans, 263 Mo. l. c. 228-9; Lieber v. Lieber, 239 Mo. l. c. 13.]

In Bishop v. Brittain Inv. Co., 229 Mo. l. c. 723, numerous cases are cited and the rule which seems pertinent to the question is stated as follows: “In applying the statute it has been ruled that where, as in ejectment, the issue was title and one of the parties to a deed necessary to establish it was dead, the living party could not testify in denial of the validity of the deed (Chapman v Dougherty, supra); nor to sustain a contrat which, if established, would defeat ejectment (Hughes v. Israel, 73 Mo. 538); nor to establish in ejectment the contents of a lost deed (Messimer v. McCray, 113 Mo. 382); nor to establish the contract in a suit for specific performance (Teats v. Flanders, 118 Mo. 660); nor to acts of performance (Sitton v. Shipp, 65 Mo. 297); nor to reform a contract by supplying a term omitted by mistake, accident or oversight (Smith v. Smith, 201 Mo. 533).”

The disqualification is not because of the interest of the witness offered, but because . . . the .other party to the contract, or cause of action in issue and on trial, is dead. [Weiermueller v. Scullin, 203 Mo. l. c. 471.] The party to the contract is the person who negotiated the contract, rather than the person in whose name and interest it was made. [Banking House v. Rood, 132 Mo. l. c. 262; Meier v. Thieman, 90 Mo. l. c. 442-443.]

There being no competent evidence offered to show there was a valuable consideration for the deed from G. L. Edwards to his wife, the recital that it was for a nominal consideration prevails. Under the rule as laid down in the case of Scharff v. McGaugh it was void as to creditors. The plaintiff, claiming under it, could not in equity maintain an action to correct a mistake in it. [Smith v. Smith, 201 Mo. 533, l. c. 546-7.] Nor could he maintain an action to remove, as a cloud upon his title, the sheriff’s deed under which defendants claim, a deed already held in the McGaugh case to be regular. The judgment for defendant, therefore, upon the first three counts, was correct.

II. The plaintiff claims that the sheriff’s deed, executed in 1904, whereby the land was sold under a judgment for costs rendered in 1900, in favor of Lee Edwards and against L. & A. Scharff, passed the title to Edmunds. The defendants assert that the deed is void because the judgment upon which it is based was rendered by J. L. Fort, Circuit Judge, who was incompetent to sit in the case because he had previously been of counsel for the defendant therein.

The suit in which that judgment was “rendered was filed in 1894. The record entries of the court was presented in the abstract of the record here and show that March 19, 1894, on a change of venue from the regular judge, Hon. H. H. Bedford, was selected as special judge to try the cause. The files show answer filed by J. L. Fort. At the September term, 1895, on the 15th day of October, an entry appears showing that the cause was tried and taken under advisement by the Honorable H. H. Bedford, Special Judge, and at that time Honorable John Gr. Wear was regular judge. No entry appears as to any disposition of the case until the September term, 1900, when, on the tenth day of the term, this entry appears:

Court met pursuant to adjournment, present Hon. Jas. L. Port, Judge.
L. & A. ScHAnarir against Lee Edwards et al.
Civil Action
This cause coming on to be beard and there appearing no one in behalf of this plaintiff to prosecute this cause of action and plaintiff being three times called and comes not, it is therefore ordered by the court that this cause be stricken off this docket and the cost of this suit laid out and charges be assessed against plaintiff and that execution issue therefor.”

Execution was issued on this judgment for costs on the 15th day of August, 1904, the property levied upon and sold, and purchased by the planitiif, Edmonds, on the twelfth day of September, 1904.

The testimony of Judge Fort as abstracted in another case was offered in evidence, and he appeared to have no definite recollection about his action in dismissing the case so many years before. He said he didn’t think he dismissed the case, hut that Judge Bed-ford might have taken the bench and dismissed it.

That part of the statute which disqualified Judge Fort from sitting in the case,. Section 1928, Revised Statutes 1909, is as follows: “Sec. 1928. If the judge interested or related to either party, or shall have been of counsel in the cause, the court or judge shall award such change of venue without any application from either party.”

The general rule is that a judgment rendered by a judge not authorized to hear or determine a case is subject to collateral attack. [23 Ency. Law & Proeed. p. 1095; Horton v. Howard, 79 Mich. 642; Ex parte Bedard, 106 Mo. l. c. 627; 15 R. C. L. p. 846.] The authority of a judge to act in a given case should appear by a record entry. [Collier v. Lead Co., 208 Mo. l. c. 261-262.] Where a special judge is called to sit in the place of a regular judge he acquires jurisdiction of a case and that jurisdiction continues until the termination of the case by judgment. [State v. Moberly, 121 Mo. 609; State ex rel. v. Williams, 136 Mo. App. 330; Ward v. Bell Egolf, 157 Mo. App. l. c. 527.] Therefore when Judge Bedford was qualified as special judge and proceeded to hear the case his jurisdiction of the case continued. He heard the case and took it under advisement. Nothing more was heard from it until six years later when it appeared on the docket with Judge Port, regular judge, presiding. If Judge Bedford had made any disposition of the case the record should have shown it. It remained on the docket undisposed of. We presume the record entries brought here are all there are in the case. There should be some entry showing a divestiture of jurisdiction on the part of Judge Bed-ford before the regular judge could - proceed to hear the case. Yet, since all presumptions of regularity of jurisdiction are indulged, if Judge Port had been qualified to sit in the case, this court might presume, in this collateral attack upon the judgment, that he had authority; that is, that Judge Bedford had failed to determine the case, and had been in some manner divested of jurisdiction. [Collier v. Lead Co., 208 Mo. 246; Nickerson v. Leader Merc. Co., 90 Mo. App. l. c. 338; Green v. Walker, 99 Mo. l. c. 73.]

There is no record entry of any kind to indicate that Judge Bedford appeared and made fhe order of dismissal. On the contrary, the plaintiff in his brief admits that Judge Port dismissed the cause, having been of counsel in'the case while the same was pending before the Hon. H. H. Bedford as special judge, though it is probable that Judge Port at that time did not remember that he had been of counsel. Thus Judge Port’s disqualification appearing upon the face of the record, and being admitted, the judgment of dismissal was a nullity and the sale and deed thereunder were likewise nullities and passed no title to Edmonds.

III. The plaintiff, however, claims that he was at all events entitled to an assignment of the dower of the widow in the premises. George L. Edwards was seized in fee simple of the property during his life and his title was divested by a sheriff’s sale, leaving the widow’s dower untouched. This dower the plaintiff -claims to have acquired through conveyance from the widow M. A. Edwards. George L. Edwards died in 1895. This suit Avas brought in 1910. Defendant sets up the Statute of Limitations in bar of the claim for dower.

The plaintiff asserts that the Statute of Limitations did not run on account of the occupation of the mansion house by the widow after the death of her husband. There is some doubt about the facts as to that. Edmonds testified at the trial that EdAvards was not living on the ground at the time of his death.

However, under the recent rulings of this court and the plain terms of the statute, Section 391, the right of action to have dower assigned is barred. Section 391 is as follows:

“See. 391. All actions for the recovery of dower in real estate, which shall not be commenced within ten years from the death of the husband through or under whom such dower is claimed or demanded, shall be forever barred.”

As the act containing this section was originally passed in 1887, a proviso was appended to the effect that -the act should not apply to persons suffering certain disabilities, nor to any case wh -.re the widow is in possession of and enjoying the mansion house. The act was amended in the revision of 1899 so as to omit the proviso and leave the section to read as above. This court in two recent cases has commented upon the legislative intention manifested in that revision and has announced that there is no doubt the section as it now reads bars an action for dower in every case without an exception.

In Investment Co. v. Curry, 264 Mo. 483, l. c. 590, Division Number Two of this court used this language: “The fact that in the statute as originally enacted there were saving clauses in favor of the widow if she was in possession of the mansion house or under legal disability and that these several clauses were stricken out in the revision of 1889, strongly indicates the legislative purpose that there should he no exception at all to the operation of this statute.”

In the case of McFarland v. McFarland, 278 Mo. — 1, the statutes as originally enacted and as thus amended is again set out, and this court held that the motive of the Legislature was evident in the result, that was to “limit the quarantine of the widow to ten years and such further time as is enough to perfect a judicial assignment of her dower.” A concurring opinion by G-raves, J., in the same case, holds that Section 391 is an absolute bar to an action to recover dower, if such action is brought for the first time more than ten years after the death of the husband. These cases settle this contention against the claim of the plaintiff.

The judgment is affirmed as to the first, second and third counts, and is reversed and the cause remanded as to the fourth count, with directions to enter judgment for the defendant on that count. Bailey and Mosley, GG., not sitting.

PER CURIAM:

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

All of the judges concur.


source: Caselaw Access Project

author: RAILEY, C. PER CURIAM:

license: Public Domain

text:
    HULDA J. MURRELL v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant.
    Division Two,
    July 5, 1919.
    1. CONSTITUTIONAL LAW: Title: Leasing Railroad. The title to an act passed in 1870, entitled, “An Act to amend chapter sixty-three of the General Statutes, entitled ‘of -railroad companies/ so as to authorize the consolidation, leasing and extension of railroads,” was broad enough to authorize a designation in the body of the act of the terms and conditions upon which such leases should be made, and to include a provision that “a corporation in this State leasing its road to a corporation of another state shall remain liable as if it operated the road itself.”
    2. -: Speed Ordinance: Six Miles An Hour: Unreasonableness. An ordinance limiting the speed of railroad passenger trains to six miles an hour at a much-used public-street crossing, 1200 feet from the station, in a city of the fourth class containing 2700 inhabitants, is not unreasonable, nor an unlawful interference with interstate commerce, but a needed protection of the public at such crossing.
    3. DEMURRER TO EVIDENCE: Practice. Where defendant, at the close of plaintiff’s ease in chief, offers a demurrer thereto, and upon its being overruled puts in its own evidence, the sufficiency of the evidence to sustain the verdict must be determined from all the evidence in the case; and the appellate court, in considering the demurrer, will indulge every inference in favor of the verdict which men of average intelligence and fairness might legitimately draw from the proven facts.
    4. NEGLIGENCE: Contributory: Demurrer to Evidence: Proven Facts: Humanitarian Rule. Where there was substantial evidence tending to prove (1) that the servants in charge of the train were negligent in failing to ring the bell, and keep it ringing, as required by statute, as it approached the public-street crossing where plaintiff’s husband was killed, (2) that they were guilty of negligence in failing to give proper and timely danger signals after he was known to be in peril, (3) that they were guilty of negligence in violating the six-mile speed ordinance and which they continued to violate until he. was struck by the train, (4) that they were guilty of common-law negligence in running the train, at the time and place of the accident, at a dangerous and unsafe rate of speed, (5) that the engineer was negligent in failing to reduce the rate of speed after seeing deceased in peril and apparently oblivious to the approaching train, and (6) that said servants were likewise negligent in failing to give danger signals with a whistle, so as to arouse in deceased a realization of the danger into which he was moving, no demurrer to the evidence can be sustained, although it be conceded that deceased, at the time and place of the accident, was guilty of negligence that directly contributed to his own death.
    5. -: Duty of Engineer: Inference. In the absence of evidence to the contrary, the jury have the right to draw the inference that the engineer of a passenger train entering a town was at his place in the cab, looking towards the station, since he owed that duty to his passengers, as well as to members of the public who might be upon the track ac a public-street crossing.
    6. -: -: Inference from Sounding Whistle. Where defendant offers evidence tending to show that the station whistle was sounded and the bell was rung before the train reached the public-street crossing, the jury have the right to infer that the engineer and fireman were at their respective places in the engine cab; and hence they have the right to infer, the view being clear and the track straight, that the engineer saw deceased in peril when the train was 500 feet away and that he was moving to a place of danger on the track at the street crossing, apparently oblivious to the approach of the train.
    7. -: -: Failure to Testify: Other Inferences. Where the view was unobstructed for 500 feet before the train reached the public-street crossing where plaintiff’s husband was struck, the jury have the right to take into consideration the fact that the engineer and fireman, who of all persons were best prepared to give the actual facts concerning deceased’s movements, were not produced as witnesses.
    Appeal from Saline Circuit Co art. — lion. Samuel Davis, Judge.
    Affirmed.

      Joshua Barbee and Scarritt, Scarritt, Jones & Miller for appellant.
    (1) Sec. 3078, R. S. 1909, is unconstitutional, for the reason that the bill when enacted contained more than one subject which was not clearly expressed in the title, as provided by Section 28, Article 4, Constitution of Missouri. Williams v. Railroad, 233 Mo. 666; Witzmann v. Railroad, 131 Mo. 612; St. Louis v. Bray, 213 Mo. 131; Shively v. Lankford, 174 Mo. 545; State v. Coffey Company, 171 Mo. 634; Gulf Ry. Co. v. Stokes, 91 S. W. (Tex.) 328. (2) The speed ordinance of six miles an hour of Iligginsville is unreasonable, unconstitutional and an attempt to interfere with and regulate interstate commerce, contrary to Section 8 of Article 1 of the Constitution of the United States. Lusk v. Town of Dora, 224 Fed. 630; Zumault v. Railroad, 71 Mo. App. 670; White v. Railroad, 44 Mo. App. 540; Plattsburg v. Hagenbush, 98 Mo. App. 669; Murphy v. Railroad, 153 Mo. 252; Byington v. Railroad, 147 Mo. 673. (3) The trial court erred in refusing defendant’s requested peremptory instructions at the' close of plaintiff’s evidence, and at the close of all the evidence, for the reasons, (a) the negligence of deceased Murrell barred recovery, and (b) no actionable negligence was shown against defendant. Reeve’s Admr. v. Railroad, 251 Mo. 169; Keele v. Railroad, 258 Mo. 78; Laun v. Railroad, 216 Mo. 563; Pope v. Railroad, 242 Mo. 232; Moore v. Lindell Railway, 176 Mo. 538, 546; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Schmidt v. Railroad, 191 Mo. 215 ; Dyrczv. Railroad, 238 Mo. 33; Lane v. Railroad Co., 132 Mo. 4; Kelsey v. Railroad, 129 Mo. 362; Walker v. Railroad, 193 Mo. 453; Burge v. Railroad, 244 Mo. 76; Farris v. Railroad, 167 Mo. App. 392; Green v. Railroad, 192 Mo. 131. (4) The court erred in submitting the case to the jury on the last-chance theory. Reeve’s Admr. v. Railroad, 251 Mo. 169; Pope v. Railroad, 244 Mo. 76; Degonia v. Railroad, 224 Mo. 595; Hawkins v. Railroad, 135 Mo. Ápp. 534; Schmidt v. Railroad, 191 Mo. 234; Boyd v. Railroad, 105 Mo. 382; Moore v.-Railroad, 176 Mo. 546; McGee v. Railroad, 214 Mo. 542; Burge v. Railroad, 244 Mo. 96; Ruschenberg v. Railroad, 161 Mo. 81; Culbertson v. Railroad, 140 Mo. 59; Mammerberg v. St. Ry. Co., 62 Mo. App. 563.

      Duggins & Duggins and Aull & Aull for respondent.
    (1) The demurrer to the evidence offered at the close of the plaintiff’s testimony and at the close of all the testimony in the case was properly overruled, (a) The servants in charge of the locomotive and train that struck and killed Murrell on the crossing, failed and neglected to ring the bell on the engine as required by statute when approaching and passing over the crossing which was negligence per se. Lloyd v. Railroad, 128 Mo. 595; Sullivan v. Railroad, 117 Mo. 245; Gratiot v. Railroad, 116 Mo. 450; .Murray v. Railroad 101 Mo. 242, Reyburn v. Railroad, 187 Mo. 565; Dickson v. Railroad, 104 Mo. 501; Hanlan v. Railroad, 104 Mo. 387; Karle v. Railroad 55 Mo. 476; McNulty v. Railroad, 203 Mo. 477; 'Wieigman v. Railroad, 223 Mo. 699. (b) Carelessly and negligently ran said locomotive and train of cars within and through the corporate limits of the city and to and over said public crossing therein, in violation of the ordinance prohibiting the running of locomotives and trains within such limits at a rate of speed exceeding six miles an hour. This was negligence per se and a direct cause of Murrell’s'death. Miller v. Engle, 185 Mo. App. 563; Lueders v. Railroad, 253 Mo. 97; Gratiot v. Railroad, 116 Mo. 463; Jackson v. Railroad, 157 Mo. 643; Johnson v. Railroad, 259 Mo. 535; Weller v. Railroad 120 Mo. 654 Schlerth v. Railroad, 115 Mo. 88 104; Dahlstrom v. Railroad, 108 Mo. 525; Murray v. Railroad, 101 Mo. 236; Bluedorn v. Railroad, 108 Mo. 439; Graney v. Railroad, 140 Mo. 89 ; Keim v. Railroad, 90 Mo. 321; Schlerth v. Ry. Co., 96 Mo. 515. If the train had been running as prescribed by ordinance every reasonable inference is that deceased would have cleared the track. Lueders v. Railroad, 253 Mo. 116; Murrell v. Railroad, 105 Mo. App. 94; Johnson v. Railroad, *259 Mo. 550; Schlerth v. Railroad 96 Mo. 515; Keim v. Railroad, 90 Mo. 324; Prewitt v. Railroad, 134 Mo. 615; Graney v. Railroad, 140 Mo. 189. (2) Yiolation of speed ordinance, and violation of statute, both negligence per se, and causal connection between negligence and injury, sustained a verdict (barring contributory negligence as matter of law). Hunt v. Railroad, 262 Mo. 275; McNulty v. Railroad, 203 Mo. 477; McNulty v. Railroad, 166 Mo. App-. 459; Stotler v. Railroad, 200 Mo. 121. (3) Contributory negligence as matter of law does not arise in this case. Dudley v. Railroad, 167 Mo. App. 665; Baker v. Railroad, 122 Mo. 544; McNulty v. Railroad, 203 Mo. 475; Weigman v. Railroad, 223 Mo. 699; Petty v. Railroad, 88 Mo. 306; Williams v. Railroad, 257 Mo. 115; Donohue v. Railroad, 91 Mo. 365; Kleiber v. Railroad, 107 Mo. 247. In no case has a pedestrian been charged with contributory negligence as matter of law where, from the very incipiency of the danger, and where from his very surroundings, he could first know of the approach of the train after he had lawfully and in the exercise of ordinary care placed himself in a position of peril. Harshaw v. Railroad; 173 Mo. App. 483. Where there are flagrant violations of the law resulting in' injury, contributory negligence must be clearly made out. Yonkers v. Railroad, 182 Mo. App. 558; Weighman v. Railroad, 223 Mo. 719; Bluedorn'v. Railroad, 108 Mo. 449; Kennayde v. Railroad, 45 Mo. 255; Dutoher v. Railroad, 91 Mo. 363; Petty v. Railroad, 88 Mo. 306; Baker v. Railroad, 147 Mo. 166; Jennings v. Railroad, 112 Mo. 268; Lueders v. Railroad, 253 Mo. 116; Sexton v. Railroad, 245 Mo. 254; Lyons v. Railroad, 253 Mo, 166; Weller v. Railroad, 164 Mo. 180. Where the laws are flagrantly .violated contributory negligence should be submitted to the jury. Petty v. Railroad, 88 Mo. 306; Baker v. Railroad, 147 Mo. 166; Bluedorn v. Railroad, 121 Mo. 268, 108 Mó. 449. (4) If the evidence tends to, or if inferences therefrom, regardless of confer inferences, can be reasonably drawn, tending to uphold the action of the trial court; if after every inference which the trial jury might with- any degree of propriety have made; if there is conflict in the evidence; if the truthfulness of a witness is in question; if there is reason for difference of opinion among practical men from all walks of life whether care or caution on part of deceased; or servants acted as ordinarily prudent servants under the facts and circumstances; whether they did, or had time to warn or to stop; if there is any uncertainty, the case should have heen submitted to the jury and the trial court should be upheld. Miller v. Engle, 185 Mo. App. 363; Maginnis v. Railroad, 180 Mo. App. 694; Holmes v. Railroad, 207 Mo. 163; Buesching v. Gaslight Co., 73 Mo. 219; Weigman v. Railroad, 223 Mo. 722; Hunt v. Railroad, 262 Mo. 181; Troll v. Railroad, 254 Mo. 722; Stauffer v. Railroad, 243 Mo. 316-17; Weller v. Railroad, 164 Mo. 199; Murphy v. Railroad, 228 Mo. 76; Fritz v. Railroad, 243 Mo. 62; Church v. Railway, 119 Mo. 215; Williams v. Railroad, 257 Mo. 87; Dudley v: Railroad, 167 Mo. App. 647; Rollison v. Railroad, 252 Mo. 538; Johnson v. Raili'oad, 259 Mo. 550; Franklin v. Railroad, 188 Mo. 542; Power v. Railroad, 244 Mo. 1; Petty v. Railroad, 88 Mo. 318; Keim v. Railway, 90 Mo. 314; Lamb v. Railroad, 147 Mo. 186; Hegberg v. Railroad, 164 Mo. App. 514. Negative testimony takes the case to the jury. Murray v. Railroad, 176 Mo. 183; Moo.re v. Railroad, 137 Mo. App. 53; Buckry-Ellis v. Railroad, 158 Mo. App. 506; Stotler v. Railroad, 200 Mo. 107; Murray v. Railroad, 101 Mo. 242; Isaacs v. Skrainka, 95 Mo. 517. Upon a demurrer to the evidence the right doctrine to go by is: Defendant’s testimony where contradicted is false; plaintiff’s testimony, whether contradicted or not, is true; discrepancies, contradictions between witnesses or self contradictions by witnesses, and the weight due their testimony, are for the jury, not the court. Plaintiff is entitled to the' grace of having allowed in his favor every inference springing reasonably from the proof. Fritz v. Railroad, 243 Mo. 79. (5) Deceased was in the exercise of due care, (a) He could not, when he went upon the crossing and tracks, by looking or listening have seen or heard an approaching train. No train was within sight or hearing. He could not tell upon what track a train was approaching, whether freight or passeng*er, nor in what direction to proceed to avoid it, even if he had knowledge of its approach. Harshaw v. Railroad, 173 Mo. App. 483; Dunn v. Railroad, 192 Mo. App. 260; Campbell v. Railroad, 175 Mo. 676; Gratiot v. Railroad 1.16 Mo. 450; Weigman v. Railroad; 223 Mo. 717; Weller v. Railroad, 120 Mo. 635; Williams v. Railroad, 257 Mo. 115. (b) The old man was not a trespasser nor did his right to pass over the crossing depend upon the permission of the railroad. Lueders v. Railroad, 253 Mo. 97. (c) When the evidence is silent, on the question as to whether the traveler, before crossing the track, looked and listened for the train, the presumption is that he did both, where there was such obstruction that had he looked he could not have seen, and had he listened it would have been difficult, if not impossible, to hear. Johnson v. Railroad 259 Mo. 547; Weigman v. Railroad, 223 Mo. 717. (d) If in and on the danger zone when the train approached, in the exercise of ordinary care, he was only required to exercise care commensurate with the situation and circumstances to extricate himself. He could not stop between tracks with safety. Weigman v. Railroad, 223 Mo. 717. A traveler in a walk four feet from the track is in the danger zone. Dunn v. Railroad, 192 Mo. App. 268. (e) A defendant cannot impart want of vigilance to one injured by reason of his acts of negligence if those very acts of negligence were the consequence of an omission of duty on the part of defendant. Weigman v. Railroad, 223 Mo. 723; Kennayde v. Railroad, 45 Mo. 262. (f) Deceased had the right to rely upon obedience to the law on the part of appellant. Mocowik v. Railroad, 196 Mo. 571; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180; Hutchinson v. Railroad, 161 Mo. 254; Lueders v. Railroad, 253 Mo. 116; Crawford v. Railroad, 215 Mo. 414; Felver v. Railroad, 216 Mo. 213; Dutcher v. Railroad, 241 Mo. 137, (6) Sec. 3078, R. S. 1909, has been, from the time of its passage, attacked by appellant in various ways The section has been by the appellate courts upheld. This attack has long since been rendered non-debatable. Brown v. Railroad, 256 Mo. 532; State v. Saline County Court, 51 Mo. 350; State v. Callaway County Court, 51 Mo. 395; Fleming v. Railroad, 199 Mo. 390; O’Donnell v. Railroad, 197 Mo. 110; Fleming v. Railroad, 263 Mo. 187; Markey v. Railroad, 185 Mo. 348; Thomas v. Railroad, 101 U. S. 71; Smith v. Railroad, 61 Mo. 1, 17; Markey v. Railroad, 200 U. S. 622; Brady v. Railroad, 206 Mo. 521. Under the facts in this case the validity of the speed ordinance limiting the rate of speed to six miles an hour in approaching and passing over this crossing is no longer debatable. Holmes v. Railroad, 207 Mo. 162; St. Louis v. Weber, 44 Mo. 547; Gratiot v. Railroad, 116 Mo. 467; Jackson v. Railroad, 157 Mo. 643; Lueders v. Railroad, 253 Mo. 116; Roberston v. Railroad, 84 Mo. 123; Prewitt v. Railroad, .134 Mo. 627; Miller v. Railroad, 185 Mo. App. 574; Petty v. Railroad, 88 Mo. 306; Johnson v. Railroad, 259 Mo. 535; Eckhard v. Railroad, 190 Mo. 593; Riska v. Railroad, 180 Mo. 168. The presumption is that the speed ordinance is reasonable. Mullins v. Cemetery, 187 S. W. 1170; Hislop v. Joplin, 250 Mo. 558; St. Louis v. Theatre Co., 202 Mo. 690. (7) The court properly submitted the case to the jury on the humanitarian theory. Hunt v. Railroad, 262 Mo. 181; Maginnis v. Railroad, 182 Mo. App. 713, 187 S. W. 11.65; Reyburn v. Railroad, 187 Mo. 565; Moore v. Railroad, 194 Mo. 1; Murray v. Transit Co., 108 Mo. App. 501; Klockenbriri'k v. Railroad, 172 Mo. 678; Murphy v. Railroad, 228 Mo. 76; Thompson v. Railroad, 243 Mo. 351; Feldman v. Railroad, 175 Mo. App. 634 Lueders v. Railroad, 253 Mo. 114; Johnson v. Railroad, 259 Mo. 550. Deceased became and was in imminent peril and the servants operating the locomotive and train saw, or by the exercise of ordinary care could have seen, him in his peril in time by the exercise of ordinary care to have slowed down the locomotive and train, to have given emergency warnings, to have used emergency appliances, to have stopped the train, but carelessly and negligently failed so to do. Hunt v. Railroad, 262 Mo. 181.
   RAILEY, C.

This action was commenced by plaintiff, in the Circuit Court of Lafayette County Missouri, on September 17, 1913, as the widow of John D. Murrell, who was killed in the City of Higginsville in said Lafayette County, by an east-bound fast-passenger train, operated at the time by the Chicago & Alton Railroad Company, by virtue of a lease in 1879, from defendant, a Missouri coporation, which was the owner of the right-of-way, road-bed, tracks, etc., where deceased was killed. On defendant’s application the venue was changed to Saline County, Missouri, and there tried upon plaintiff’s second amended petition, which among other things, in substance, alleges the following grounds of negligence: 1. That the statutory signals were not given for the crossing, where deceased was killed. 2. That the train in question was being operated through the city limits of Higginsville, Missouri, in violation of its six-mile speed ordinance, and while traveling at a highly dangerous rate of speed, to-wit, twenty-five to thirty-five miles per hour. 3. Failure on the part of the servants operating the train to be at their posts of duty, to slow down the train and have the same under control as it approached and passed over the crossing, when they knew and saw, or by the exercise of ordinary care could have known and seen, deceased in peril on the crossing in time, by the exercise of ordinary care, t to have slowed down the locomotive and train, given emergency signals or stopped the train and averted the killing, which they carelessly and negligently failed to do.

The answer to second amended petition contains (1) a general denial; (2) a plea of negligence on the part of deceased; (3) an averment mat the statutes, under which it is sought to hold defendant, are unconstitutional; and (4) that the six-mile speed ordinance of Higginsville is unreasonable, void, unconstitutional, and an unlawful interference with interstate commerce.

At the time of his death, deceased was sixty-seven years of age; hie health was good, but he was a cripple. His right leg had been broken; he wore a stirrup on this leg; it was shorter than the other. He used a crutch under his left arm and a cane in his hand. Deceased lived about three blocks southwest of where he was killed, and walked very slowly.

It is conceded that, at the' time of said killing, defendant was the lessor of the railroad right-of-way, road-bed and tracks over which the Chicago & Alton Railroad Company was operating the train which killed deceased. It is likewise conceded that, at the time of said killing, the Chicago & Alton Railroad Company was operating defendant’s road, by virtue of the lease aforesaid, and that it was at the time an interstate common carrier, etc.

Plaintiff’s evidence tends to show that the public crossing, where Murrell was killed, is situate in the heart of Higginsville, a city of the fourth class, with about 2700 inhabitants, the business portion of the city being north, and about half of the residence population south, of the railroad tracks, about midway between the depot and the western limits of the city, or about a quarter of a mile east of the western limits of the city and about 1200 feet west of the depot in said city. Two other public crossings intervened between the one on which Murrell was killed and the depot. There were two other public crossings between the depot and the eastern limits of the city. Murrell was killed at the intersection of Brand Street and the railroad tracks. Brand Street, after passing over the railroad tracks, west where the killing occurred, and Brand Street, with the other crossings mentioned, ran practically north and south. Brand Street was a regular traveled public road or street, and used by many residents going to and continues on north to other portions of the city. The railroad tracks ran in the general direction of east and from their places of business. North and south of this crossing, where the killing occurred, and west thereof, except the railroad right-of-way, were many and numerous residences, extending to and beyond the city limits on the west. The crossing, with five tracks, covered a space of about fifty feet, over which there was constructed a plank walk about four feet wide, on the west side of Brand Street, over the railroad tracks, and there was a regular north-and-south wagon crossing, east of the sidewalk. The road-bed at this crossing was elevated above the ground on each side, the tracks being constructed on a fill, some four feet or more deep, extending west for about 1200 feet, and ending at the 'cut mentioned in evidence. The approach to the crossing from the south was up this incline to the road-bed and south switch track, parallel and connected with four other tracks, and connected with the next track north about 100 feet or more west of the crossing. The second track, traveling north, extended west from the crossing from 800 to 900 feet, where it connected with the next track north. The third track from the south, called in the evidence a “passing track,” and at times used as the main track, continued west from the crossing some 1200 feet, where it connected with the next north track, called in the evidence, “the main track,” which continued west from the crossing to.Kansas City, Missouri. The north, or switch track, extended west about 200 or 300 feet, and connected with the main track. Plaintiff’s evidence tends to show that the tracks at the crossing were about four feet and eight inches wide, between rails; and the space between the main track and passing track was thirteen feet and two inches. The entire distance from outside of north rail to outside of south rail was about fifty feet.

Plaintiff contends that a man on the crossing looking west along the tracks could see from 500 to 600 feet. Defendant contends that a man anywhere on the crossing could see an engine approaching from the west for at least a thousand feet. Substantial testimony was offered in support of each contention.

The deceased came upon the board'walk across the tracks, from the south, with his crutch and cane, and must have traveled north toward the main track where he was killed. The train was due at 11:35 a. m. and arrived at 11:40 a. m. on the day of the accident. Plaintiff’s evidence tends to show that Murrell was crossing over the north rail of the main track when struck and killed, as his headless body, his brains, pieces of his skull, broken crutch, hat and clothing’, were found immediately after the train passed, north of the north rail of the main track, between the latter and the north switch track, and some portion of same was attached to slivers on the north rail of the main track, commencing about ten feet east of the plank walk, and continuing for some distance.

Such other facts and circumstances shown by the record, as far as necessary, will be considered later, .in connection with the instructions given and refused.

At the conclusion of plaintiff’s evidence, the defendant interposed .a demurrer thereto, which was overruled and an exception saved. At the conclusion of all the evidence, defendant again asked the court to direct a verdict in its behalf, which request was refused, and an exception saved to the ruling of the court.

The jury returned a verdict in favor of plaintiff for $2,000, and judgment was entered accordingly. Defendant, in due time, filed its motion for a new trial, which was overruled and the cause duly appealed by it to the Kansas City Court of Appeals, and certified to this court on account of the constitutional questions raised in the case.

I. The lease under which appellant was operating its trains over the property of defendant was executed in 1879. In its assignment of errors, defendant attacks constitutionality- °f Section ,2 of the Act of the General Assembly for 1870, at pages 90 and 91, approved March 24, 1870, and now known as Section 3078, Revised Statutes 1909, as follows: “Section 3078, Revised Statutes 1909, is unconstitutional for the reason that the bill when enacted contained more than one subject, which was not clearly expressed in the title, as provided by Section 28, Article 4, of the Constitution of Missouri.”

The above charge is more specifically stated at page 10 of appellant’s brief, as follows: “By reference to the title of the act, it will be observed that at no place in the title is any reference made to holding the railroad leasing its line of railroad liable, the same as though operating it.”

The title to the Act of 1870, page 89, reads as follows: “An Act to amend chapter sixty-three of the General Statutes, entitled ‘of railroad companies,’ so as to authorize the consolidation, leasing and extension of railroads.” (Italics ours).

We had occasion to fully consider this subject in the recent case of Woodward Hardware Co. v. Fisher, 269 Mo. l. c. 276-9, where many recent authorities are collated, including some of those cited by appellant. We have no fault to find with the above cases, nor those cited by appellant, considered in connection with the general principles of law announced therein. In our opinion, they do not sustain appellant’s contention, when applied to the facts before us.

In the Act of 1870, supra, the Legislature had under consideration the subject, as to what aid railroad companies might furnish each other by way of extension lease or consolidation. The State, acting through its legislative agencies, had the undoubted right in the granting of railroad charters to corporations organized under the laws of this State, to prohibit them from leasing such roads to railroad corporations, chartered under the laws of another State. The General Assembly likewise possessed the power to authorize leases under such circumstances, and to designate the terms and conditions upon which such leases could be made. [Fleming v. Railroad, 263 Mo. l. c. 186-7-8; Brown v. Railroad, 256 Mo. l. c. 533-4; Moorshead v. United Railways Co., 203 Mo. 121; Dean v. Railroad, 199 Mo. l. c. 390; Markey v. Railroad, 185 Mo. 348.] The same principle of law is recognized by Court in Banc in the recent case of State ex rel. v. Hemenway, 272 Mo. 1. c. 199.

Appellant contends that the following portion of Section 2 of the Act of 1870, to-wit, “and a corporation in this State leasing its road to a corporation of another State shall remain liable as if it operated the road itself” relates to a different subject than the lease mentioned in the title to the act. We do not so interpret the act. On the contrary, we think it manifest that the Legislature intended that the words quoted aboye should be construed as an inseparable part of the lease itself. In other words, the title to the act provided ■ that a lease might be made, but left the legal effect thereof to be determined in the body of the act. They both relate to the same subject, and contemplate the making of a lease by the Missouri Corporation, to a railroad corporation of another State, with the understanding, that the former shall remain liable as if it operated the road itself.

The cases cited by appellant are clearly distinguishable from the case at bar in many particulars and are insufficient, in our opinion, to overturn the validity of the act under consideration. We accordingly rule that the Act of 1870 is not obnoxious to the criticism leveled against it in appellant’s brief, and that it is a valid enactment.

II. Appellant contends that the Higginsville speed ordinance of six miles an hour “is unreasonable, unconstitutional, and an attempt to interfere with and regulate interstate commerce, contrary to Section 8 of Article I of the Constitution of the United States.” The following authorities are cited in support of this contention: Lusk v. Town of Dora, 224 Fed. 650; Zumault v. K. C. & I. Air Line, 71 Mo. App. 670; White v. Railroad, 44 Mo. App. 540; Plattsburg v. Hagenbush, 98 Mo. App. 669; Murphy v. Lindell Ry. Co., 153 Mo. 252; Byington v. St. Louis R. R. Co., 147 Mo. 673.

In the Lusk case, supra, 224 Fed. 650, an injunction suit was brought to restrain the enforcement of a six-mile speed ordinance in a town of one thousand inhabitants. The court, under the peculiar facts of the case, sustained the injunction, and in doing so, at page 654, said: ‘ ‘ This finding is predicated upon the idea that the danger to be apprehended can be adequately guarded against by property protecting the crossing or crossings that need protection by flagmen, without unnecessariU impeding the plaintiffs’ operation of the railroad by so stringent a speed limit.”

The court, by its decree, required the railroad company to maintain' adequate protection against the hazards arising from the operation of trains over the crossings. It further appears that there was a watchman stationed at,the principal crossing. We do not think this case can have any application to the facts before us.

In Zumault v. K. C. & I. Air Line, 71 Mo. App., 670, decided by Judge Smith of the Kansas City Court of Appeals, it was held that the six-mile speed ordinance of Kansas City was inapplicable and oppressive in the operation of the Independence Air Line Railroad between the Grand Central Depot and the eastern limits of the city. Judge Smith simply held that an ordinance might be declared unreasonable as to certain localities where there was no necessity for having a speed ordinance of this character.

In White v. Railroad, 44 Mo. App. 540, a speed ordinance of four miles an hour through Marshfield, Missouri, was held to be unreasonable under the facts disclosed by the record in said case. On pages 542-3, the court said: “The uncontroverted facts show that the city has a population not exceeding fifteen hundred inhabitants, and that only about one-third of its area is platted, the residue consisting of farming lands. The restriction, if valid at all, extends over this entire area. As far as the farm lands are concerned, the necessity of any restriction whatever is not obvious, and as far as the residue of the town is concerned, the necessity of a restriction to four miles an hour, which, as we know, is less than the maximum speed permitted in the most populous cities in' this State, is equally not apparent. In the absence of any necessity shown, the restriction is clearly unreasonable. If one city may adopt it, they all may, and thereby make rapid transit, in which the people of the entire State are interested, an impossibility. ” In this case the ordinance was offered in evidence for the purpose of showing negligence, in a place where a cow was killed in the corporate limits. No such facts were presented, in regard to the necessity for such an ordinance as are shown in this case. The court does not intimate that a speed ordinance of six miles an hour would be held unreasonable, where the safety of the public demanded it.

In Plattsburg v. Hagenbush, 98 Mo. App. 670, the court had before it a six-mile speed ordinance of said city, and which was attacked as being unreasonable. On page 673, Judge Smith said: “We are unable to conclude that the limitation imposed by the ordinance, when applied to trains running on that part of said railroad line between East Street and the western limits of the city, is in the least unreasonable or oppressive. A like ordinance-limitation in what was doubtless a less populous city was held by the Supeme Court to be not unreasonable. [Robertson v. Railroad, 84 Mo. 119.] And so, too, it has been held by the same court.that an ordinance of the City of St. Louis, limiting the speed of certain trains to six miles an hour, was not reasonable. [Gratiot v. Railroad, ante.] But it seems to us that the limitation as applicable to the movement of trains on that part of the said railroad between the eastern limits of the city and Second Street is wholly unnecessary for the protection of the public.” It is thus seen, from an examination of this case, that there was no intention to hold, that a city like Higginsville could not pass an ordinance that would he effective at the place where Murrell was killed.

In Murphy v. Lindell Ry. Co., 153 Mo. 252, and Byington v. St. Louis Railroad Co., 147 Mo. 673, cited by appellant, the validity of speed ordinances was not involved. The court, in those cases, held that unless the railway companies had accepted the ordinance which had been enacted, a third party would have no right of action based thereon for violation of same. These two cases were practically overruled in Jackson v. Railway Co., 157 Mo. 622, and in Sluder v. Transit Co., 189 Mo. 107 and following, decided by the Court in Banc.

We do not find, upon a careful examination of the authorities cited by appellant, any ground for holding the ordinance in controversy void. On the other hand, by a long and unbroken line of decisions in this State, six-mile speed ordinances have been upheld by this court, in cities and towns where they were necessary for the public welfare, and to prevent accidents at public crossings. In the following cases, speed ordinances were upheld by this court, to-wit: Karle v. Railway Co., 55 Mo. l. c. 483, where a five-mile ordinance at St. Joseph was sustained; Robertson v. Railroad, 84 Mo. l. e. 121, in which a six-mile ordinance in the town of Jamison was sustained; Merz v. Railway Co., 88 Mo. l. e. 675, in which a six-mile ordinance in the city of St. Louis was sustained; Keim v. Railway Co., 90 Mo. l. c. 321, in which the St. Louis six-mile ordinance was again sustained; Kelly v. Railway Co., 95 Mo. 1. c. 285-6, in which the St. Louis ordinance was again sustained; Eswin v. Railway Co., 96 Mo. l. c. 294, in which the St. Louis ordinance was again sustained; Schlereth v. Railway Co., 96 Mo. l. c. 512, in which this court again sustained the St. Louis ordinance; Grube v. Railway Co., 98 Mo. l. c. 334, in which the six-mile speed ordinance of Kansas City was sustained; Gratiot v. Railway Co., 116 Mo. l. c. 455, in which the St. Louis ordinance was again sustained; Prewitt v. Railway Co., 134 Mo. l. c. 619-20, in which a six-mile ordinance of Sedalia was sustained; Jackson v. Railway Co., 157 Mo. 621, in which a six-mile speed ordinance of West Plains was sustained, and the court, in its opinion, reviewed all the former authorities of this State in relation to this subj ect; Stotler v. Railroad, 200 Mo. l. c. 120, in which an eight-mile speed ordinance of Laddonia was sustained; King v. Railway Co., 211 Mo. l. c. 5, in which a six-mile ordinance of Elm Plat was sustained; Johnson v. Railroad, 259 Mo. l. c. 544, in which an eight-mile ordinance of Mexico was sustained; Hunt v. Railroad, 262 Mo. l. c. 275, in which a five-mile ordinance of Cape Girardeau was sustained. The last case cited was disposed of in Court in Banc.

With this long line of decisions confronting us, sustaining six-mile ordinances, we have no disposition to declare invalid the one adopted'by Higginsville in controversy here. As a police regulation it was the duty of the municipality to protect its citizens in the enjoyment of their rights, under such circumstances as are disclosed in this record.

According to the plaintiff’s evidence, the Brand Street crossing was located in the heart of Higgins-ville, a city of the fourth class, containing 2700 inhabitants, and over which many people traveled to and from their places of business.

Upon a full consideration of all the facts connected with the case, we have reached the conclusion that the ordinance in question is not unreasonable and that, at the place where Murrell was killed, it was needed for the protection of the public.

III. It is insisted by appellant, that the trial court committed error in submitting the case to the jury on the last-chance theory.

The petition undoubtedly states a good cause of action based upon the humanitarian rule, and stands unchallenged in defendant’s assignment of errors. Plaintiff’s instruction numbered 3 correctly placed before the jury the law in respect to this subject, and is likewise unchallenged in appellant’s assignment of errors. Was the evidence sufficient to warrant the trial court in submitting this issue to the jury?

At the close of plaintiff’s case in chief, defendant’s demurrer thereto was overruled and it put before the jury its own evidence. The sufficiency of plaintiff’s testimony must be determined from all the evidence in the case. It was the province of the jury to pass upon the facts, and every inference which men of average intelligence and fairness might legimitately draw from the proven facts, must he indulged in favor of plaintiff, in considering the demurrer to the testimony.

It may he conceded for the purposes of the case that deceased, at the time and place of the accident, was guilty of negligence which directly contributed to his own death, in failing to learn of the approach of the train before going upon the main track where he was killed. On the other hand, there was substantial evidence tending to show the following: That the servants in charge of the train were negligent in failing to ring the bell and keep it ringing, as required by the statute, before approaching the crossing where Murrell was killed; that they were guilty of negligence in failing to give .proper and timely danger signals after deceased was known to be in peril; that they were guilty of negligence in violating the six-mile speed ordinance of HigginsviÜe, and which they continued to violate until the time of killing; that they were guilty of common-law negligence in running the train, at the time and place of accident, at a dangerous and unsafe rate of speed; that the engineer was guilty of negligence, in failing to reduce the rate of speed with which he was running, after seeing deceased in peril, and apparently oblivious of the approach of the train; and was likewise negligent-under such circumstances, in failing to give danger signals with a whistle, so as to arouse in deceased a realization of the danger into which he was then travel-

In the absence of evidence to the contrary, the jury had the right- to draw' the inference that the engineer was at his place in the cab, looking toward the depot, as he owed that duty to the passengers on his train, as well as those who might be upon the crossing. [Reyburn v. Railroad, 187 Mo. l. c. 565-6.] The jury also had the right to infer from the facts before them, that the engineer and fireman were at their respective places in the cab, as evidence was offered by defendant tending to show that the station whistle was sounded and that the bell was rung at some time before the crossing was made. Especially is this true, as the train stopped at the station and, hence, the engineer must have been performing the duty concerning the movements of the train.

No witness claims to -have seen deceased after he came upon the sidewalk and started across the tracks, or to have witnessed the killing, except one Joe Fleming, who testified in behalf of defendant. This witness was not only impeached, by other witnesses, who testified in the cause, but, in our opinion, his own testimony is inconsistent and self-contradictory. It is so at variance with the physical facts, that neither court, nor jury, were bound to give credence to his testimony. But even this witness says that deceased, after he knew the train was coming, just started off and hobbled along on his crutch and stirrup as usual.

Even if it be conceded that deceased was guilty of negligence, as heretofore stated, yet the jury had the right to infer from the other facts in the case, that the engineer saw deceased in peril when the latter was less than 500 feet away, moving to a place of danger, apparently oblivious of the approach of the train. The evidence is undisputed that the train ran on over the crossing twenty-five to thirty-five miles an hour, without the slightest effort to slow down the speed of same, when, by so doing, even to the extent of two seconds, it would probably have saved the life of' deceased. Plaintiff’s evidence tends to show that deceased was in peril in front of a rapidly moving train, in plain view of the engineer for over 500 feet, when a few sharp blows of the whistle might have arrested his attention and saved ■ him from entering upon the track. It is claimed on account of the curve that the engineer may not have seen deceased approaching the track, but the jury had the right to infer from all the evidence, as the deceased was approaching the track on the same side of the engineer, that when the comparatively straight track of 500 feet was reached, the engineer could see down the track, and had a plain view of deceased, moving toward the main track where he was killed. As said in the Reyburn case, the jury had the right to take into consideration the further fact that the engineer and fireman were not produced as witnesses, when, of all other persons, they would have been better prepared to have given the actual facts, than any one else could have done. Unless the humanitarian rule in this State is to be abandoned, the facts before us present a plain case for its application. [Reyburn v. Railroad, 187 Mo. 565; Eppstein v. Railway Co., 197 Mo. 720; Hinzeman v. Railroad, 199 Mo. 56; Holmes v. Railway Co., 207 Mo. 149; Lynch v. Railroad, 208 Mo. l. c. 34; Dutcher v. Railroad, 241 Mo. 137; Maginnis v. Railroad, 268 Mo. 667, 187 S. W. 1165.]

Many other well considered decisions of this court might be cited in line with the foregoing, but we deem the above sufficient to sustain the action of the trial court in overruling defendant’s demurrer to the evidence and submitting the cause to the jury under the humanitarian rule.

IY. We call especial attention to the cases of Reybura, Hinzeman and Holmes above cited, where the fac^s are fully set out and the principles of law governing the same are clearly defined.

We have given full consideration to the assignment of errors submitted by appellant, as well as the propositions discussed in the respective briefs on file in the ease. We are satisfied from the record before us that the judgment below was for the right party, and

it is accordingly affirmed.

White and Mozley, CC. concur.

PER CURIAM:

The foregoing opinion of Raikey,

C., is hereby adopted as the opinion of the court.

All of the judges coneur.


author: WILLIAMS, P. J.

text:
    JAMES E. MAXWELL v. JAMES C. GROWNEY, Appellant, et al.
    Division Two,
    July 5, 1919.
    1. EXPRESS TRUST: Power of Beneficiary to Mortgage. A deed giving to the trustee power to sell, convey, pledge, mortgage or otherwise dispose of land, and to invest, re-invest or use the money derived from any such sale, mortgage or pledge, or any income arising from said property, for the use, benefit, support and maintenance of another, creates an express, active trust in the land, and gives to the beneficiary no power to sell or mortgage the same.
    2. -: Pleading: Cause of Action: Present Interest. An allegation that it is now necessary that plaintiff, in the exercise of the powers conferred upon him as trustee by a certain trust instrument, either lease, sell or mortgage the lands for the purposes of the trust, and that a mortgage executed by the beneficiary constitutes a cloud upon the plaintiff’s title and has heretofore and does now prevent the plaintiff from carrying out the provisions of said trust, states that plaintiff had an interest in the land at the time his suit was brought.
    S. -: Cancellation of Beneficiary’s Mortgage: Discovery of Defect. A “mind of legal acuteness’’ is generally, if not always, required to determine what rights of a beneficiary of a trust are alienable; and where the defect in the mortgage made by the beneficiary is of such a character as to render it invalid but can only be discovered by a mind of legal acuteness, a court of equity will remove it as a cloud upon the trustee’s title.
    4. -: -: Sufficient Facts. Where the trustee- is unable to carry out the powers conferred upon him by the trust instrument unless the suspicion cast upon his title by a mortgage made by the beneficiary is removed, and there is no adequate legal remedy open to the trustee, a court of equity will, at his suit, cancel the mortgage.

      Appeal from Buchanan Circuit Court. — Eon. Thomas B. Allen, Judge.
    Am?IB.MBD'.

      James G. Growney for appellant.
    (1) The petition in the instant case does not state facts sufficient to constitute a cause of action. It is not alleged that plaintiff at the time he filed his bill in 1913, had any interest in the subject-matter in suit. The only allegation of interest is that in 1907 the land was conveyed to him as trustee. Shelton v. Horrell, 232 Mo. 369; 17 Ency. PI. and Prac. p. 327. (2) The demurrer contained in appellant’s answer should have been sustained for the reason that the allegation in the petition is, that the legal title is in the plaintiff, and that the defendant, John E. Maxwell, had not title or right to make the deed of trust to appellant, Growney. This shows that no grounds exist for the authority to invoke the aid of a court of equity to decree cancellation of said deed of trust for the allegation, if true, makes the deed of trust void and no extrinsic evidence is required to show its invalidity. Dunklin Co. v. Clark, 51 Mo. 60; Connecticut Ins. Co. v. Smith, 117 Mo. 297; Thorp v. Miller, 137 Mo. 231; Hannibal Ry. Co. v. Nortoni, 154 Mo. 142. (3) The evidence in the instant case shows the defendant, John E. Maxwell, cestui que trust in possession of this land, asserting ownership thereof, and the plaintiff claiming title thereto, being out of possession, cannot invoke equitable jurisdiction to remove cloud upon title. Graves v. Ewart, 99 Mo. 18; Davis v. Sloan, 95 Mo. 552; Turner v. Hunter, 225 Mo. 83. (4) The trust instrument is not a trust for an infant; it is not a trust for a person non compos mentis; it is not a trust for a spendthrift, because the instrument does not withhold from the cestui que trust the right of possession, neither does it deprive oi withhold from him the right to alienate his equitable interest in the trust estate. Kessner v. Phillips, 189 Mo. 524; Wenzel v. Powder, 59 Atl. 194; Heaton v. Dickson, 153 Mo. App. 326. (5) The instrument carried the corpus of the estate, as well as the income for his use and benefit. It' all belongs to him, and in equity he is the absolute owner thereof and can mortgage it. 1 Perry on Trusts (5 Ed.), sec. 321; 2 Perry on Trusts (5 Ed.), sec. 815; 39 Cyc. 203-229; 28 Am. & Eng. Ency. Law (2 Ed.), 1107; Wenzel v. Powder, 59 Atl. 197. (6) The evidence in this case is to. the effect that the cestui que trust John E. Maxwell, has elected to take the truist estate as it exists — the land. That he is in possession thereof; that the plaintiff trustee admits that the cestui que trust had denied him any right to manage or control the trust estate. That the cestui que trust is enjoying the possession with the rents and profits thereof. Under such circumstances a surrender has been made by the trustee and the legal title with the possession has vested in the cestui que trust. Perry on Trust (5 Ed.), secs. 349, 351, 920; Sears v. Choate, 146 Mass. 398; Sparhawk v. Cloon, 125 Mass. 263.

      Culver é Phillip for respondent.
    (1) The petition alleges that plaintiff has an interest in the subject-matter of the suit. (2) The cestui que trust had no power to sell, convey or encumber the trust property. (3) The beneficiary is not even given the right to occupy the land, nor any power or control over the sale or disposition thereof, while the trustee is given full power to sell, mortgage and convey. This vests in the trustee “the full fee in the real estate itself.” Cornwell v. Wulff, 148 Mo. 542. The estate of the trustee is commensurate with the powers conferred by the trust. Ewing v. Shannahan, 113 Mo. 188; 38 Cyc. 208; Iligbee v. Brockenbrough, 191 S. W. 995. Under such circumstances the corpus of the trust estate is not liable to the payment of a judgment against the cestui que trust, the only theory on which this could be done being that the trust was a dry one, imposing no active duties on the trustee. Heaton v. Trust Company, 153 Mo. App. 328. Where the cestui que trust enjoys only the income or support and maintenance from the principal and the trustee - is charged with any control over the trust estate, then the trust is an active one. Pugh v. Hayes, 113 Mo. 431; Walton v. Ketchum, 147 Mo. 218; Freeman v. Maxwell, 262 Mo. 24. The cases even go to the extent of holding that where the trust is an active one it is the duty of the trustee to protect the trust estate, and if the trustee becomes barred by limitation, the cestui que trust, even though under disability such as infancy, coveture, etc., is likewise barred. Simpson v. Erisner, 155 Mo. 157. Moreover “where the trustee is not merely the recipient of the title for the use of the beneficiary, where he has a duty to perform in relation to the property which calls for the exercise of judgment and discretion, it is an active trust, and is not affected by the Statute of Uses.” Webb v. Hayden, 166 Mo. 39.
   WILLIAMS, P. J.

This is a suit in equity to cancel and annul a certain deed of trust upon real estate. Trial was had in the Circuit Court of Buchanan County, Avhich resulted in favor of plaintiff, canceling the deed of trust. From that judgment James C. Growney, the cestui que trust, duly perfected an appeal.

The facts may be summarized as follows:

On January 14, 1907, Margaret E. Smith et al. conveyed by warranty deed, to the plaintiff, in trust for defendant John E. Maxwell, Sr., five acres of land in Buchanan County. The deed was made subject to a life estate in said property in favor of James Maxwell and Malinda Maxwell.

John E. Maxwell, Sr., named in said deed is the father, and James Maxwell and Malinda Maxwell (life tenants) were the grandfather and grandmother, of plaintiff, James E. Maxwell, named as trustees in said deed.

The powers given plaintiff as trustee are stated in the deed as follows:

“Giving and granting to said trustee full power and authority to grant, bargain, sell, convey, pledge, mortgage or otherwise dispose of said property, to invest, re-invest or use' the 'money derived from any such sale, mortgage or pledge of said property or any income derived therefrom, for the use, benefit, support and maintenance of said John E. Maxwell, Sr.”

The above deed was duly recorded January 15, 1907.

The survivor of the two life tenants died in 1912, or 1913 and shortly thereafter John E. Maxwell Sr., “went out and took possession of the land.”

On March 23, 1914, John E. Maxwell, Sr., executed a deed of trust (being the deed of trust involved in the present suit) on said land, to secure the payment of a note of even date in the sum of $300 payable to defendant (appellant) James O. Growney.

On the following day said James O. Growney, acting as the attorney for John E. Maxwell, Sr., filed a suit in the Circuit Court of Buchanan County against the present plaintiff, the object and general nature of which was to have the legal title to said land vested in John E. Maxwell, Sr., or, failing in that, to have the trustee removed and a new trustee appointed. The case was tried, resulting in a judgment in favor of the trust and also in favor of the trustee, and no appeal was taken from said decree.

The evidence further tends to show that John E. Maxwell, Sr., moved “back to town” (St. Joseph, Mo.) in the fall of 1915, and that there was no one on the property at the time this suit was tried.

The plaintiff trustee testified that his father was without other means of support; that he (the son) had paid for the board and clothes of his father for the past several years and that in August, 1915, he as trustee decided to sell or mortgage the property for the purpose of raising the necessary money with which to support his father under the terms of the trust; that he then discovered for the first time the deed of trust given to secure the $300 note to defendant Growney ; that by reason of the existence of the Growney deed of trust he was unable to borrow any money on the land.

Hence this suit to cancel the deed of trust, in order that the trustee might not be hampered in the execution of said trust.

I. It will be noticed that the respondent trustee is given full and complete, discretionary control over the trust estate. Under the express terms of that P°wer he may sell, mortgage or otherwise dispose of said property; may re-invest the proceeds thereof or use the money derived from any such sale or mortgage or the income thereof for the support of the named beneficiary. The trust created in said land was therefore an express active trust. [Freeman v. Maxwell, 262 Mo. l. c. 24; 3 Pomeroy’s Equity Jur. (3 Ed.) par. 991.]

The full and express powers conferred upon the trustee clearly excluded the idea that the beneficiary was given a like power of disposal. It therefore follows that the beneficiary did not have an alienable interest in the land which he attempted to incumber with the deed of trust. [Partridge v. Cavender 96 Mo. 452; Higbee v. Brockenbrough, 191 S. W. Rep. 994.]

The above being true the deed of trust should be held as having no effect whatever upon' the title to this land nor the powers of the trustee thereover;

II. It is contended by appellant that plaintiff’s bill fails to state a cause of action in that it fails to allege that plaintiff had an interest in the land at the time suit was filed; citing, Shelton v. Horrell, 232 Mo. l. c. 369.

The petition after alleging that the land was conveyed to him in trust, etc., in 1997 proceeds: “That it is now necessary and advisible that plaintiff in the exercise of the powers conferred upon him as said trustee, either lease or sell or dispose of or encumber said lands for the purposes of said trust, but that said deed of trust so executed to said defendant Growney . . . constitutes a cloud on the title of the pláintiff in and to said real estate and has heretofore prevented and does noiv prevent the plaintiff Grom carrying out the provisions of said trust.’ ” (Italics ours.)

A mere reference to the foregoing portion of the bill is we think entirely sufficient to distinguish this case from the Shelton case, supra, and to show that plaintiff’s present interest in the subject-matter of the suit was sufficiently alleged.

III. We are also of the opinion that the trial court acting as a court of equity properly cancelled deed of trust in question.

Appellant in insisting to the contrary relies upon a line of cases of which Hannibal & St. J. Ey. Co. v. Nortoni, 154 Mo. 142, 1. c. 149, is a fair type, In that case the court said: “The deed from Blake to defendants is clearly void on its face, because Blake had no title whatever to the land, which was apparent from the records of deeds in the Eecorder’s office of the county. Under such circumstances a court of equity will not lend its aid to remove what is claimed to be a cloud upon the title, because there is an adequate remedy at law, and it is only where the deed sought to be removed as a cloud does not appear to be void upon its face, but is void by reason of some other infirmity, and extrinsic evidence has to be resorted to for the purpose of establishing its invalidity, or the defect is of such a character as to render the deed invalid but can only be discovered by a mind of legal acuteness, that it will do so.”

The rule above announced will not protect appellant under the present situation. A “mind of legal acuteness” is generally, if not always, required to determine what rights of a beneficiary of a trust are alienable. This will become quite apparent to any researcher. Wide the many authorities reviewed in 3 Pomeroy’s Equity Jurisprudence (3 Ed.), par. 989, p. 1840, note 5, and par. 1005 and eases cited thereunder. See also 39 Oyc. 234 (e) and numerous oases thereunder.]

Prom the uncontradicted evidence in the case at bar it clearly appears that the trustee is unable to carry out the power conferred upon him by the settlors of the trust, unless the suspicion cast upon the trustee’s title by the deed of trust in question is removed by the decree of a court of equity. There is no adequate legal remedy open to the trustee. His only adequate relief is in equity and we are of the opinion that the trial court did not go beyond its equitable powers in awarding relief under the circumstances now held in review. [Jewett v. Boardman, 181 Mo. 1. c. 656-7; Pocoke v. Peterson, 256 Mo. 518-9.]

The judgment is affirmed.

All concur.


text:
    JOHN CALVIN DOBSCHUTZ et al. v. LOUISA DOBSCHUTZ et al., Appellants.
    Division Two,
    July 5, 1919.
    1. FOREION ‘WILL: Effect in This State. The will of a resident of Illinois, executed and probated there, when a copy duly authenticated is filed for record in this State, will take effect and be • interpreted according to the laws of this State, exactly as if it had been originally proved here.
    2. -: -: Partition. Children, residents of Illinois, not mentioned in their father’s will, by which he attempted to devise all his property, wherever situate, to his widow, may maintain a partition proceeding in the courts of this State and assert the same rights' to land in this State, belonging to testator at the time of his death, that they could have done had he left no will.
    3. -: -: Contrary to ■ WiU and Statute. Children “not named or provided for” in their father’s will, by bringing suit for the partition of lands belonging to him at the time of his death, do not seek partition contrary to any will which affects them, and consequently Section 2569, Revised Statutes 1909, which provides, that no partition of lands devised by any last, will shall be made contrary to the- intention of the testator as expressed in the will, has no application to them.
    Appeal from Ste. Genevieve Circuit Court. — Ron. Peter R. Ruolc, Judge.
    Affirmed.

      John J. O’Connor for appellants.
    (1) Plaintiffs, are barred- from recovering under the second cause of action by Sec. 2569, R. S. 1909, which says that “no partition or sale of lands devised by any last will shall be made contrary to the intention of the testator, expressed' in any such will.” Stuart v. Jones, 219 Mo. 635; Sikemeier v. Galvin, 124 Mo. 367; Cubbage v. Franklin, 62 Mo. 364; Cannon v. Cannon, 175 Mo. App. 88; Stevens v. De La Vaulx, 166 Mo. 20Stevens v. Larwill, 110 Mo. App. 151. (2) Land owned in this State by a deceased non-resident shall be disposed of according to his last will. Sec. 260, R. S. 1909. (3) Where a remedy is part of an entire and complete scheme of law as; in the “law of partition, ” and one adopts that remedy, he must recover under that law or fail. If plaintiffs have mistaken their remedy, equity will not aid them. State ex rel. v. Allen, 45 Mo. App. 551.

      Charles Fenslcy and M. E. Rhodes for respondents.
    (1) A will devising real estate situated in the State of Missouri must be executed according to the- laws of this State. .Sec. 567, R. S. 1909. (2) If any person make his last will and die leaving a child or children, or descendant of such child or children, not named or provided for in .said will, such testator, so far as regards such child, or children or their descendant, not provided for, shall be deemed to die intestate. Sec. 544, R. S. 1909; Bradley v. Bradley, 24 Mo. 311; Hargadine v. Pulte, 27 Mo. 423; Thomas y. Block, 113 Mo. 66; Breidenstein v. Bertram, 198 Mo. 328; Vantine v. Butler, 250 Mo. 451. (3) In partition the interest of children omitted from the will can he determined, and all rights and equities between all persons interested in the real estate can be determined, in such proceeding. Breidenstein v. Bertram, 198 Mo. 344. (4) Under the law plaintiffs’ rights secured to them by Sec. 554, R. S. 1909, are not affected,' whether. a will is established or annulled, and their right to maintain this action for their share of said real estate situated in Missouri would be the same as though their father died without a will. Vantine v. Butler, 250 Mo. 451.
   WHITE, C.

This action seeks the partition of a large tract of land in Ste. Genevieve County. The plaintiffs are four children and heirs, of whom there were ten in all, of Moritz J. Dobschutz, deceased; the defendant, Louisa Dobschutz, is his widow, and the other defendants his six remaining children.

Moritz Dobschutz, who owned the land at the time of his death, lived and died at Belleville, Illinois, and reared his family there. All the parties were at all times residents of the State of Illinois. The land was wild; neither Dobschutz nor any of his children ever lived on any part of it. The petition alleges the relationship of the parties, the death of Moritz Dobschutz, that the widow has a dower, and the plaintiffs and remaining defendants are tenants in common of the property, subject to said dower, each being entitled to an undivided one-tenth interest, and prays for partition in the usual form.

Defendants’ answer, admitting the ownership of the land in Moritz Dobschutz at the time of his death, set out at length in defense the will of Moritz Dobschutz, which was admitted to probate in the probate court of St. Clair County, Illinois, on July 31, 1913, and a copy, duly authenticated, filed for record in the office of the Recorder of Deeds of Ste. Genevieve County, Moritz died June 24, 1913. The will left all the property, real and personal, of the testator to his wife Louisa Dobschutz. No mention of any kind of any of testator’s children was made in the will. On a trial of the case there was a judgment for plaintiffs as prayed in the petition, and the defendants appealed.

I. The rule prevails, not only in this State, but is of universal application, that the title to land can be acquired only according to the law of the place where it is situate. Land may be devised in this State by a non-resident testator, but his will will take effect and be interpreted according to the law of this State. Section 567, Revised Statutes 1909. [Hughes v. Winkleman, 243 Mo. l. c. 92; Keith v. Keith, 97 Mo. 223, l. c. 230.] The will of Moritz Dobschutz can have the same effect and only the effect it would have if he had been a resident of this State and his. will had been originally proved in this State.

II. The appellants assert that the judgment here was erroneous because in conflict with Section 2569, Revised Statutes 1909, which provides that no partition of lands devised by any last will shall be made contrary to the intention of the testator as expressed in the will. It is argued that having elected to pursue the statutory remedy by proceeding in partition, the plaintiffs are bound by all the provisions of the statute relating to partition, including that section. The will gives the real estate in dispute in fee simple to the widow, Louisa Dobschutz; therefore the partition decree is in direct conflict with the very statute under which the plaintiffs are proceeding.

Section 544, Revised Statutes 1999, provides that if any person make his last will and die leaving a child or children, or descendants of such child or children in case of their death, “not named or provided for in such will, ’ ’ such testator shall be deemed to have died intestate as regards such child or children or their descendants; Under the plain, unequivocal provision of that section the plaintiffs are not seeking partition contrary to any will which affects them. So far as they are concerned there is no will; he died intestate as to them. They are no more hound by the terms of the will in respect to their remedies, than they are in respect to their substantive rights.

It has been held by this court that a pretermitted heir may maintain an action for partition of land disposed of by a will in which he was not mentioned or provided for; that is, he may “assert his rights under the statute creating an intestacy as to him.” [Breidenstein v. Bertram, 198 Mo. l. c. 344; Vantine v. Butler, 250 Mo. l. c. 451.]

AppeEants rely upon two cases in support of their position where it is held that partition cannot be made contrary to the terms of the will. In the first case, Stevens v. Larwill, 110 Mo. App. 140, there were no children or other descendants parties to the proceeding, and Section 544 could have no application; and besides, the parties plaintiff, collateral relatives, were expressly mentioned in the will. In the other case, Stewart v. Jones, 219 Mo. 614, 1. c. 638, the plaintiff, who sought the partition contrary to the terms of the will, asserted rights which arose under the will. He could not maintain partition contrary to the terms of the will under which he claimed.

Section 544 would have no meaning if plaintiffs were denied their right to sue in this case.

The judgment is affirmed.

Mosley, C., concurs; Railey, C., not sitting.

PER CURIAM:

The foregoing opinion by White, C., has been adopted as the opinion of the court.

AE of the judges concur.