source: Caselaw Access Project

author: RAGLAND, C.

license: Public Domain

text:
    NATHANIEL SHANKLIN, Appellant, v. HENRY A. WARD et al.
    Division One,
    December 19, 1921.
    1. GUARDIAN: Furnishing Money to Ward’s Family: Volunteer: Reimbursement. A person who acted as guardian and curator of an insane person in the honest belief that his ward had been legally adjudged to be insane, whereas such attempted adjudication was void because no notieo of the lunacy inquiry had been given as the law requires, and who during the pendency of such guardianship advanced money to the insane man’s wife, whieh was used for her support and the maintenance and education of his children, although in a technical sense a volunteer, is entitled to be reimbursed out of the insane man’s estate for the money so -advanced.
    2. EQUITABLE LIEN: Purchase of Land from Guardian: Guardianship Illegal: Use of Proceeds. Where the adjudication in the probate court in the lunacy inquiry was illegal because the insane person had not been given notice, the purchaser in .good faith of the insane man’s land from the appointed guardian, who acted in good faith throughout in the honest belief that he-was a legal guardian, the purchase money being used to support the insane man's wife and for the maintenance and education of his children, and by its payment the guardian obtaining a release from the wife of her inchoate dower, whereby he was enabled to sell the insane man’s real estate at a fair value and pay his pressing debts, is entitled to an equitable lien on the land so purchased for the purchase price,.with interest, regardless of the form the transaction took.
    3. -: Purchase in Good Faith: Constructive Notice. The purchaser of land from the guardian of an insane person, in good faith, for full value, without notice of any infirmity in the title, is entitled to have the land charged with the purchase price and with the amounts expended by him in the payment of taxes and in the making of permanent improvements, with interest, less the rental value, with interest, from the date of the purchase from the guardian, although the probate court records showed that said insane person was adjudged insane in a lunacy inquiry without notice to him, and the appointment of said guardian and the sale of the estate land by him were therefore void. In such ease, the doctrine of constructive notice is inapplicable, and the purchaser’s good faith can be challenged only on the ground that he had actual notice of the defect in ‘the title, or knowledge of such facts and circumstances as would have put a man of ordinary circumspection upon inquiry. '
    4. -: -: -: Mistake of Law- Where manifest justice and equity require it, a court of equity will relieve one from the consequences of a mistake as to title to real estate, even though the mistake is one of law. Even if the purchaser of land at the time he received a deed from the guardian of an insane person and paid the purchase money knew that the proceedings in the probate court were had without notiee to said insane person, yet, unless he also knew that by reason thereof the proceeding was void, or that the guardian h'ad no title, he will not be precluded from re- ’ lief, but is entitled to be reimbursed for the amount of purchase money paid to the guardian and for the 'moneys expended on the faith of his title in making permanent improvements and discharging liens, with interest, less the rental value of the premises, with interest.

      5. -: Mortgage: Payment of Interest to Protect Equities. Where the defendant had purchased town property, in good faith and without notice of any infirmity, in the title, from the guardian of an insane- owner, and thereafter said owner was restored to his right mind, and the title was in such a state of uncertainty that neither could borrow money on it without the other joining in the lien papers, and both joined in the mortgage, and it now turns out that said insane person is the owner, he should be charged with the payment of the debt, but such purchaser is entitled to be reimbursed for the interest paid by him to protect his equities in the property.
    6. -: Kents: Reversal as to Part of Period. Where the trial court erroneously failed to allow to plaintiff for the rental value of the premises adjudged to belong to him for certain years, and the cause must therefore be remanded for that reason, and defendant's own testimony shows that the rental value for the other years was twice the amounts allowed by the trial court, the plaintiff on the re-trial should be allowed the full value of the rents for those other years.
    7. -: Insurance: Offset for Permanent Improvements: Theory of Trial. A party on appeal is held to the theory on which he tried the ease. Where appellant was adjudged to be the owner of the land, and at the trial asserted that respondent was not entitled to an allowance for permanent improvements because they had been destroyed by fire, and that such loss, which was covered by insurance, was respondent’s, and the trial court accepted his theory and refused to allow respondent for any permanent improvements made by him, or for any of the premiums he had paid for the insurance, nor required him to account for the insurance he might thereafter receive, the trial court, upon a remanding of the case, ' will not be required to. charge respondent with whatever money is received by him from the insurance company.
    Appeal from Grundy Circuit Court. Hon. L. B. Woods, Judge.
    REVERSED AND REMANDED (ivith directions).

      George Hall, O. M. Shanhlin and Hubbell & Hubbell for appellant.
    (1) The trial court erred in rendering judgment in favor of respondent against appellant for purchase money in the sum of $2600 and interest thereon, because respondent is only a grantee of a grantee of the pretended guardian of appellant and has no legal or equitable claim against appellant for his purchase money, which respondent paid to Berry, his grantor, solely, under the terms of a warranty deed. McKenzie v. Donnell, 151 Mo. 469; Dewey v. Algire, 55 N. W. 276, 37 Neb. 6, 40 Am. St. 469; Hovey v. Hobson, 53 Me. 457, 89 Am. Dee. 705; German Savings Soo. v. DeLashmntt, 67 Fed. 399; 23 Am. & Eng. Ency. Law (2 Ed.), 482 to 485; Brown v. Baldwin, 121 Mo. 125; Rugel v. Knuckles, 95 Mo. App. 670; Patterson v. Booth, 103 Mo. 414; McDonald v. Qnick; 139 Mo. 498; Dormitzer v. German Sav. Soc., 62 Pac. 890, 23 Wash. 132; Brush v. Ware, 10 L. Ed. 679; Rogers v. Walker, 47 Am. Dec. 470, 6 Pa. St. 971; Dexter v. Hall, 21 L, Ed. 73, 82 U. S. 9, 15 Wall. 9, 28; Shanklin v. Boyce, 275 Mo. 5; Building & Loan Assn, v.' Eveler, 237 Mo. 679; Bank v. Shanklin, 174 Mo. App. 639; Hunter v. Hunter, 79 Am. St. 845. (2) Hughes, the pretended successor of Berry, as guardian did not sell the property in controversy for cash as provided in the order of sale and as provided by statute, and the whole proceeding between Hughes and Berry was void and illegal, and the pretended order of approval was void and illegal; the assumed twenty-five hundred dollars purchase money, assumed to have been paid by Berry to the pretended guardian, was not paid in cash, or otherwise, to the pretended guardian, but was taken out of Shanklin ⅛ estate under the pretense of reimbursing Berry for his exchange and trade of his own property to Shanklin⅛ wife; the assumed $2500 purchase money went from Shanklin ⅛ estate to Berry instead of Berry to Shanklin. This was a fraud in law and in fact against Shanklin, and equity will not aid in the perpetration of a fraud, such as this, by snbrogation or otherwise; and for this reason, the respondent, nor any one else, could be subrogated to any alleged rights or privileges of Berry, the fraudulent grantee in, the pretended guardian’s deed. Secs. 4301, 505, 506, R. S. 1909 ; 37 Cyc. 372, 380, 381; 16 Cyc. 142, 194; 16 Am. & Eng. Ency. Law (2 Ed.), 593; 27 Am. & Eng. Ency. Law (2 Ed.), 204, 241; Tallent v. Fitzpatrick, 253 Mo. 18; Freeman on Void Judicial Sales (4 Ed.), secs. 4a, 9, 21, 36, 40, 50; Rannells v. Gerner, 80 Mo. 480; King v. Sipley, 25 Am. <& Eng. Ann. Cas. 1912D, 704,166 Mich. 258, 34 L. R. A. (N. S.) 1058; 14 R. C. L. 576; 12 R. O. L. 1127; Kearnes v. Nickse, 10 Am. & Eng. Ann. Cas. 420, 80 Conn. 23; Woodward v. Jewell, 25 L. Ed. 481, 140 U. S. 247; Perin v. Megibben, 53 Fed. Rep-. 97; Miller v. Staggs, 266 Mo.. 449; Parker v. Bowers, 84 S. W. 382; German Savings Soc. v. Tnll, 136 Fed. 1; Milwaukee Ry. Co. v. Stouter, 13 Wall. 517, 20- L. Ed. 543. (3-) Without considering the fraudulent procurement of Shanklin’s property by Berry, the respondent does not show a state of facts which would authorize him to be subrogated and substituted to any alleged rights or privileges of the said Berry against the appellant for the purchase money which the respondent paid to his grantor, Berry. 37 Cyc. 447, 448; Ins. Co. v. Middleport, 31 L. Ed. 537, 124 TJ. S. 534; McKenzie v. Donnell, 151 Mo. 471; Bank v. Shanklin, 174 Mo. App. 646; Berry v. Stigall, 253 Mo. 690; German Loan Soc. v. DeLashmutt, 67 Fed. 401; Roberts v. Best, 17,2 Mo. 67; McDonald v. Quick, 139 Mo. 484 ; 27 Am. & Eng. Ency. Law (2 Ed.), 246, 204; Implement Co. v. Jones, 143 Mo. 253; Yalle v. Fleming, 29 Mo. 160; 37 Cyc. 373, 391; Shanklin v. Boyce, 275 Mo. 5. (4) Respondent had personal knowledge and actual notice of the insanity of appellant at all times, and the fact that the Probate Court proceedings were held without his presence and without notice being served on appellant was spread of record in the chain and line of respondent ⅛ title; and the fact that the pretended guardian’s deed of May 3, 1900, was executed, jointly, by said pretended guardian and Nora B. Shanklin was shown in the chain and line of his title and, therefore, the respondent was not a purchaser in good faith', for value, without notice for any purposes in this case. 39 Cyc. 1688; Shanklin v. Boyce, 275 Mo. 5; Halley v. Troester, 72 Mo. 73; Heard v. Sack, 81 Mo. 610; Gillespie v. Gouly, 52 Pac. 816, 120 Cal. 515; 14 R. C. L. sec. 40’, pp. 584, 585; Frazier v. Peakins, 64 Kan. 615, 68 Pac. 24, 57 L. R. A,. 575; Reeder v. Barr, 22 Am. Dec. 762, 4 Ohio, 446; Brown v. Baldwin, 121 Mo. 107; Lee v. Bowman, 55 Mo. 400; Lodge v. Simon-ton, 23 Am. Dec. 36, 48 ; Tydings v. Pitcher, 82 Mo. 379; McArthur v. Scott, 28 L. Ed. 1015, 1025', 1086 ; Cordova v. I-Iood, 21 L. Ed. 587; Brush v. Ware, 10 L. Ed. 672, 40 U. S. 93; Coal Co. v. Doran, 35 L. Ed. 1072, 142 U. S. 417; Turner v. Edmonston, 210 Mo.-411, 124 Am. St. 739.; Cobe v. Lovan, 193 Mo. 235, 112 Am. St. 480, 4 L. R. A. (N. S.) 439; Gross v. Watts, 206 Mo. 373, 394; 27 R. C. L. sec. 481, pp. 710, 715; 201 R. C. L. see. 7, pp. 346; 347, 353; Building & Loan Assn. v. Eveler, 237 Mo. 679; Sec. ,2401, R. S. 1909.

      L. A. Warden, J. G. Wilson and A. G. Knight for respondents.
    (1) Conceding the irregularities of the proceedings adjudging plaintiff insane, and that the deed of Hughes, his second guardian, as absolutely void, and likewise the warranty deed from Berry, the grantee, to defendant Ward, yet plaintiff’s estate received the benefit of this very property, and where this is so an owner or his heirs cannot attack the sale, as against a bona-fide purchaser, without refunding* the purchase money, with simple interest, together with all sums laid out by him in improvements, and a liberal allowance for all trouble, costs and expenses incurred by him, including just allowances for necessary expenses of rep-air, management and improvement. 16 R. C. L. sec. 75, note 11; Clay v. Freeman, 118 U. S. 97, 30 U. S. (L. Ed.) 104; Penn, v. Heisey, 19 Ill. 295, 68 Am. Dec. 597; Muir v. Berkshire, 52 Ind. 149; Wilson v. Brown, 82 Ind. 471; Banks v. Bales, 16 Ind. 423; Burnes v. Ledbetter, 56 Tex. 282; Jones v. Smith, 55- Tex. 383; O’Brien v. Harrison, 59 Iowa, 686, 12 N. W. 256, 13 N. W. 764; Kendrick v. Wheeler, 85 Tex. 247, 20 S. W. 44; Douglas v. Bennett, 51 Miss. 680; Burleigh v. Bennett, 9 N. H. 15, 31 Am. Dec. 213; Yale v. Fleming, 19 Mo. 454; Same Case, 29 M;o. 152; Schafer v. Pansey, 76 Mo. 365; 2 Woerner, Am. Law Annin. 1080, 1081’, Cunningham v. Anderson, 107 Mo. 371; Mobley v. Nare, 67 M;o. 546; Long v. Joplin Co., 68 Mo. 422; Shroyer v. Nickell, 55 Mo. 264; Henry v. McKarlie, 78 Mo. 416; Wellsly v. Lincoln Co., 80 Mo. 424; Bnrden v. Johnson, 81 Mo. 318; Price v. Estill, 87 Mo. 378; Sampson v. Mitchell, 125 Mo. 217; Stump v. Hornback, 109 Mo. 272; Hull y. Hull, 35 W. Va. 155, 29 Am. St. 800; Iron Co. v. Fullenwider, 87 Ala. 584,13 Am. St. 73; Elliott v. Labarre, 2 La. 326; Evans V. Snyder,' 64 Mo. 516; Griffin v. Nicholas, 224 Mo. 275, 312-340.; Bruschke y. Wright, 166 HI. 183, 57 Am. St. 125 ; Eay v. Detchon, 79 Ind. 56; O ’Brien v. Harrison, 59 Iowa, 686; Richards y. Morton, 18 Mich. 255; Jellison v. Halloran, 44 Minn. 199; Rogers v. Benton, 39 Minn. 39,12 Am. St. 613; Bonner v. Lessley, 61 Miss. 392; Winslow v. Clark, 47 N. Y. 261. (2) Point II of appellant’s brief is not well taken. The answer is two-fold, (a) As long as Shanklin had any estate, whether his guardian was one de facto or de pire, such estate was in law and morals, subject to the support and maintenance of his wife and children. It is horn-book law that Shanklin ⅛ estate was liable to anyone, whether guardian or otherwise, that furnished his wife and children necessary support. 21 Cyc. 1217, 1218, 1219. (b) And in equity, a third person supplying a married woman with money for necessaries, is permitted to recover from the husband the amount of such sum actually expended for necessaries by her. 21 Cyc. 1222, 1223, note 42; Reed v. Crissey, 63 Mo. App. 184; Moran v. Montz, 175 Mo. App. 360,162 S. W. 323. (e) Conceding that Hughes reported the $8900: as cash received from Berry for the sale of the property in (Juestion, and other properties, when the transaction in fact was a mere credit to Berry for money for which the estate was validly in debt to Berry, and for which Shanklin had received full benefit, no such irregularities and non-observance of statutory requirements will authorize a court in equity to take the property away from Berry, or his grantee, and give it back to Shanklin, and at the same time permit Shanklin to hold on to the benefits of his estate, which he received in full, and as well to the improvements, taxes, and to allow bi-m in addition thereto, rents. Such a result is unthinkable in a court of equity. 16 R. C. L. sec. 76, p. 105, note 2; Penn v. Heisey, 19 Ill. 295, 68 Am. Dec. 597; Griffin v. Nicholas, 224 Mo. 275, 340,; Bond v. Montgomery, 56 Ark. 563, 35' Am. St. 119; Hull v. Hull, 35 W. Ya. 155, 29 Am. St. 800; Jones v. French, 92 Ind. 138; Evans v. Snyder, 64 Mo. 516; Elliott v. Labarre, 2 La. 326 ; Kendrick v. Wheeler, 85 Tex. 247, 20 S. W. 44; Eisberg v. Phillips, 197 Mo. App. 329, 334; Henry v. Mc-Karlie, 78 Mo. 416. (d) Berry in making provision for the support and maintenance of Shanklin’s wife and children, and for the wife’s inchoate right of dower, can in no sense he treated as a stranger or volunteer, as he was at least acting under color of authority, and so acting he' had and has an equitable right to he reimbursed for such expenditures, the same as though his appointment had been perfectly valid. 16 Am. & Eng. Ency. Law, (2 Ed.), p. 593; Jessup v. Jessup, 17 Ind. App. 177; Coolidge v. Allen, 82 Me. 23. (3) There is nothing in appellant’s point 4, that because Ward did not search back through the chain of his title and discover the defect that leads to the overthrow of the judgment adjudging Shanklin insane for the reason that no notice had been given him, that therefore'Ward is not a purchaser in good faith, for value, without notice. Ward should not he held remiss in not detecting a defect which it took the bench and bar of this State fifty years to discover. The essential matter for investigation is, did Ward believe he had a good title. “Not that by a recondite investigation he might have ascertained he had a bad' one or a limited one.” Gallenkamp v. Westmeyer, 116 Mo. App'. 680, 688; Eisberg v. Phillips, 197 Mo. App. 334; Stump v. Hornback, 15 Mo. App. 367, 94 Mo. 35, 109 Mo. 272; Brown v. Baldwin, 121 Mo. 107.
   RAGLAND, C.

This is a suit in equity to set aside two deeds purporting to convey title to real estate, to recover the possession of the premises and for am accounting of the rents and profits.

In November, 1895, and prior thereto, plaintiff was actively engaged in business in the city of Trenton. He owned five substantial store buildings centrally located in the business district of tbe city and some twenty small residences in other parts, all of which he rented. He also owned an interest in the local gas and electric light plant, a one-fourth interest in the Trenton Land Company, and nineteen of the fifty-five shares of the Grundy County Coal Company. The Land Company owned 1600' or 1700' acres of land worth from $.20 to $25 per acre. The Coal Company seems to have had a capital stock of only $5,500; it operated almost exclusively on borrowed capital; and in November, 1895, it owed $40,-000. Plaintiff was the manager and conducted the company’s business, practically as though it was his own, using it as a clearing house, so to speak, for all of his other business. The value of plaintiff’s holdings at the time just mentioned, according to his estimate, was $130,-000; his individual indebtedness was from $25,000' to $30,000; and he seems to have been personally obligated for some of the debts of the Coal Company as its surety. His account at one of the local banks was overdrawn to the extent of $400.

On the date last mentioned plaintiff became insane. He was found in his office by a business associate in a dazed condition, turning through his books and ledgers, and saying that he was an embezzler and had ruined himself and friends. He developed suicidal tendencies and was taken to a private sanitarium in St. Louis. After receiving treatment there for quite a while he was taken to Chicago and there operated on by the late Dr. John B. Murphy. He was then taken to the home of a brother in Arkansas where he remained until October, 1898, when he was removed to the State Hospital for the Insane at St. Joseph, Missouri. He was confined in the latter institution until July, 1910, except for a period of about two years in 1901 and 1902, during which time he was in the care of a brother-in-law at the latter’s home in Trenton. Continuously from November 26, 1895', to July 15⅛ 1910-, plaintiff was insane and incapable of managing his affairs. On the latter date he was discharged from the state hospital as restored, and has ever since been of sound mind.

At the time he became insane, plaintiff’s family consisted of his wife, their three small children, and three, daughters by a former marriage. He had still another daughter, Minnie, who had married and was living with her husband, Corydon L. Berry. Plaintiff was a devoted husband and father, and maintained his family in a style of living that fully comported with his means and with his prominent social and business standing. To two of his daughters he had given a four years’ course in college, and at the time he was stricken he was sending the two next younger.

Three or four months after plaintiff had been taken to the sanitarium at St. Lotus, his son-in-law, Berry, filed in the Probate Court of G-rundy County information in writing alleging that plaintiff was of unsound mind and incapable of managing his affairs and praying that an inquiry be had. On March 11, 1896, the day set for the hearing, the court caused this to be spread upon its records: “It appearing to the court that said Nathaniel Shanklin is now confined in a hospital in the city of St. Louis, and unable to attend and be present at said inquiry, or to be served with notice thereof, it is ordered that said proceedings be had without his presence and without notice being served upop him,” and then proceeded with the inquest. A jury after hearing evidence returned a verdict finding plaintiff of unsound mind and incapable of transacting his own business, and judgment was entered accordingly. Berry was. thereupon appointed guardian of the person and estate of plaintiff as an insane person; he complied with all the statutory requirements with respect to qualifying as such guardian, and entered upon the discharge of the duties and functions pertaining to such a guardianship'.

Soon after Berry’s appointment as guardian, plaintiff’s creditors became insistent in demanding immediate payment of their claims; suits were threatened and one or two were brought. There were not sufficient personal assets available to pay the debts and support plaintiff’s family and it became necessary to sell some of the real estate. Orders for the sale of such of the real estate as was necessary to supply the deficiency were made by the probate court conformably to the provisions • of the statute in such cases made and provided, but plaintiff’s wife, acting under the advice of her father, refused to join the guardian in making- deeds of conveyance for the purpose of releasing her inchoate dower. Under such circumstances the real estate could not be sold except at a great sacrifice. To meet this situation the guardian with the approval of the probate court entered into a written contract with plaintiff’s wife whereby she agreed that in consideration of $10,000 she would support herself and maintain and educate her three minor children, entirely relieving her husband’s estate from the burden thereof, and would join with the guardian in the conveyance of real estate sold pursuant to the orders of the court. This contract was fully performed on both sides. Berry paid Mrs. Shanklin out of his own money and property $10,000 and charged her husband’s estate with the amount thereof. She thereafter during the remainder of'her life supported herself and her three children and joined with her husband’s guardian in the conveyances of real estate. She died in 1901, leaving intact apparently the principal of the fund that had been turned over to her by Berry. This was inherited by the three children, and guardians were appointed for them. One of them, Helen, on becoming of age in 1911, received from her guardian $3,600, and this she immediately turned over to her father, the plaintiff. The latter at the time he received the $3,600 from his daughter had been fully advised as to the transaction between his wife and Berry, and he knew the source from which the money had come. However, he treated it as his daughter’s and used and applied it exclusively for her benefit.

Berry resigned as guardian October 3, 1898, and H. J. Hughes was appointed to succeed him. Berry’s final settlement, which was duly approved by the court, showed the estate indebted to him to the amount of approximately $10,000'. In May, 1900', Hughes, as guardian, pursuant to an order of the probate court, sold at private sale the property in controversy and other property belonging; to plaintiff to Berry for the sum of $8,900, the appraised value. The sale was reported as having been made for cash and Hughes in his next settlement thereafter charged himself with that sum. However, he took credit for a like amount as paid to Berry in discharge of the estate’s indebtedness to the latter. On May 3, 1900, Hughes, as guardian, and Mrs. Shanklin, as wife of plaintiff, executed a deed purporting to convey to Berry the property so purchased by him.

The property in controversy was valued at $2500 in the transaction had between Hughes and Berry. The latter made some repairs, and on December 26, 1904, sold and'conveyed it to the defendant Ward for the sum of $2600. Ward immediately went into possession and had up to the time of the commencement of this action continuously occupied the premises as a residence. Presumably he is still in possession.

On affidavits theretofore filed by some of his relatives, an inquiry was had in the probate court on September 12, 1910, with respect to plaintiff’s sanity. In that proceeding he was duly adjudged restored, and thereupon discharged from ward.

In 1909 or 1910 Ward borrowed $1200 to pay for a sidewalk and street paving in front of his premises and for constructing a sewer to connect the house with the public sewer on the outside. Upon the maturity of the obligation given for this money he applied' for a loan of $1200 on the premises from the school fund of Grundy County. The county court declined to make the loan unless both plaintiff and Ward joined in the execution of the bond and mortgage. This they did on the ;-day of .May, 1911, and Ward thereafter paid the annual interest thereon as it accrued. At the time of the trial these payments so made by him amounted to $504. From December 26, 1904, to July 1, 1919, the day on which the trial of the case was concluded, Ward had paid all the taxes on the premises and kept them in repair—ontside of a fire damage which occurred after the institution of this suit and with which we are not concerned. During that time property of like character in the city of Trenton increased in value from thirty to forty per cent irrespective of improvements.

The petition, which was filed June 25, 1913, alleges in substance that on November 26,1895, plaintiff was the owner in fee of Block One in Nathaniel Shanklin’s First Addition to the City of Trenton; that thereafter on May 3, 1900, while plaintiff was in an insane and helpless condition one Hughes wrongfully took possession of said property and attempted to'sell and convey it to one Berry for a purported consideration of $2500; that thereupon Berry wrongfully went into possession and thereafter on December 26, 1904, while plaintiff was still insane, attempted to sell the property, and by deed purported to convey it to the defendant Ward, who has ever since wrongfully withheld the possession from the plaintiff; that at the times the purported conveyances were made the parties thereto were fully advised as to plaintiff’s insane condition; and that said deeds constitute a cloud on plaintiff’s title. The prayer is that the deeds be set aside, that possession be restored to plaintiff, and that defendant Ward be required to account for the rents and profits.

The separate answer of defendant Ward, after setting out at length the facts with respect to the attempted adjudication of plaintiff’s insanity, the appointment of guardians, the administration by them of his estate and the sales of his real estate, avers: “that the proceeds of said sale to the said Corydon L. Berry went into the hands of plaintiff’s guardian, as aforesaid, and were by him used for the benefit of said estate, and the payment of the plaintiff’s indebtedness, and was used for the use and benefit of the plaintiff herein, and defendant avers that the plaintiff directly or indirectly received all of the proceeds of the sale of said real estate, or received the benefit thereof; that said.sale and purchase was made in good faith, without any notice on the part of this defendant of any defect or irregularity therein, and that he accepted said deed from said Corydon L. Berry and paid said purchase money believing; and relying upon the facts that he was receiving an indefeasible and fee simple title in and to said property. ’ ’

The answer, after further averring the payment of taxes and the making of permanent improvements by Berry and Ward, prays that if it be held that plaintiff still lias the legal title, “the court shall by its judgment and decree, order and direct that plaintiff, as a condition precedent to obtaining the possession of said land, or ousting the defendant from the possession thereof,-be required to pay to defendant, or into court for his use, the amount so paid said guardian, or the said Corydon L. Berry, for the purchase price of said land, and used for the benefit of plaintiff and his estate, with interest there7 on, together with amounts paid out. for improvements, taxes and repairs on said land, together with interest thereon, and that the amounts so found to be due shall be declared a lien on said land.”

The affirmative matters set up in the answer were put in issue by the reply.

The suit was originally instituted against both Berry and Ward; during its pendency Berry died, and it was revived in the names of his widow and heir. They filed no answer and have made no appearance in this court.

The trial court found and decreed that the proceedings in the probate court wherein plaintiff was adjudged to be a person of unsound mind and the subsequent appointments of guardians thereunder were void, and that the deed from Hughes, as guardian, to Berry was likewise void, conveyed no title and constituted a cloud on plaintiff’s title. It further found that Ward was a purchaser in good faith; that he paid $2,600-as the purchase price of the property; that said sum inured to the benefit of plaintiff, and with the interest thereon from February 28,1905, the date when it was paid by Ward to Berry, amounted to $4,901; that Ward paid the state and county-taxes on the property for the years from 1905 to 1918. inclusive, which with interest amounted to the sum of $1,037.91; that he also paid $504 interest on the money borrowed to pay for the sidewalk and paving’; and that the aggregate of these sums, $6,442.91, less the rental value of the premises from 1905 to 1918, inclusive, with interest, amounting to $2,349.20, should be charged as a lien thereon. The court thereupon further ordered and adjudged that the deed from Hughes to Berry be set aside, that plaintiff was vested with the legal title and that he be restored to the possession of the premises-all on condition that he pay to the defendant Ward the sum of $4,093.71, which was thereby adjudged a lien on the property. The decree further exonerated Ward, as between him and plaintiff, from the payment of the $1,-200 school fund mortgage. From such judgment plaintiff appeals.

Appellant finds no fault with the trial court in charging the premises with a lien for the taxes paid by defendant Ward, with interest, nor with respect to the amount allowed him as and for the rents and profits. His complaint is: that the judgment is erroneous in so far as it requires him to refund the purchase money paid by Ward to Berry, and the interest paid by Ward on the school fund mortgage, and imposes upon him the sole liability for the payment of that mortgage.

I. It is assumed by counsel for both parties that the guardian’s deed to Berry was void and conveyed no title because the initial proceeding in the probate court, having for its purpose the appointment of a guardian for piainti~, was void, no notice thereof having been given him. [Shanklin v. Boyce, 275 Mo. 5; Hunt v. Searcy, 167 Mo. 158.] The only questions raised on this appeal, therefore, are those with respect to the character and extent of the equitable accounting, if any, that may be required at the hands of the plaintiff as a condition precedent to the granting of the relief he seeks.

It should be said at the outset that there is not a particle of evidence in the record tending to show fraud, collusion or bad faith on the part of any one concerned in the attempted administration of plaintiff’s property as that of an insane, person, or on the part of those who purchased property from persons assuming to act as his guardian. And further, that the proceedings in the probate court under which the successive guardians for plaintiff were appointed were had in accordance with the law as it had been assumed to be and as it had been followed in this State for more than half a century. Hunt v. Searcy, supra, was not decided by this court until six years later. There was no reason, therefore, for either of the persons, who under appointment by the probate court assumed to act as plaintiff’s guardian, to have any thought but that he was, while so acting, clothed with all the powers conferred by law upoii the guardian of an insane person. Nor was there anything to call in question the authority of either in the premises in the minds of those who dealt with them as guardians.

II. Appellant’s first contention is that the defendant Ward has no legal or equitable claim against him for the $2,600 paid by Ward to Berry as purchase money for the property in controversy. The court found that the $2,600 “went to the benefit and was received by the said Nathaniel Shanklin by reason of the purchase of said property.” There does not seem to have been any basis of fact for this finding. The evidence merely discloses that Berry sold the property to Ward for $2,600, and that the latter paid that amount to the former, who presumably applied it entirely to his own uses. It may be reasonably claimed that the $2,500 paid to Hughes by Berry was used for Shanklin’s benefit, but not the. $2,600 paid by Ward .to Berry. It is obvious, therefore, that if Ward has an equitable claim against Shanklin, with respect to the purchase money received by the latter’s estate, it is one derived solely through Berry.

The first question for consideration then is: What would-have been Berry’s equities, if he had not sold the property but had continued in possession and Shanklin had brought this suit against him alone? In advancing Mrs. Shanklin $10,000 for the support of herself and children out of his own means, to be repaid later by Shanklin’s estate, Berry was perhaps in a technical sense a volunteer. There is no question, however, but that he thought, and with reason, that in furnishing such support he was discharging a duty incumbent upon him as Shanklin's lawful guardian, and had he in fact been such guardian his acts would have been valid and binding on his ward’s estate. Under such circumstances it should not be held that he would have to abide the consequences of one “who either foolishly or for charity’s sake pays the debt of another.” Even if he had never been appointed guardian, or assumed to act as such, and independently of any such relationship to Shanklin or to his estate, he had furnished money for the procurement of necessaries for the latter’s wife and minor children, he could have recovered it from Shanklin. [Reed v. Crissey, 63 Mo. App. 184, 191.] In this connection it may be observed that appellant makes no complaint as to the amount of money paid Mrs. Shanklin for the support of herself and the maintenance and education of her children, or as to the use she made of it.

Regardless of the form the transaction took, it is incontrovertable that the $2500 paid by Berry for the property in suit and the additional sums he paid for other property belonging to Shanklin furnished support for the latter’s wife during the remainder of her life, educated three of his minor children and maintained tamed them for a period of approximately fifteen years. Not only that, but it effected a release of his remaining real estate from the encumbrance of his wife’s inchoate dower, and thereby made it possible for the full value of such real estate to be applied to the payment of his debts. Twenty-five hundred dollars of this money was paid by Berry in good faith for the land in controversy, in the honest belief that he was getting a good title; and after appellant has receive the benefit of the'money so paid, by its having been applied to the support of his family and indirectly to the payment of his debts-burdens with which all of his property stood charged-he seeks to recover the land. As against Berry he would not be permitted to have both land and money; the land, if restored to him, would under equitable principles be charged with a lien in Berry’s favor to the extent of the purchase money with interest. The maxim that we have borrowed from the civil law, “Jure naturae cequum est, neminem cum alterius detrimento et injuria fieri locupletiorem,” is clearly applicable. [Berry v. Stigall, 253 Mo. 690; Valle’s Heirs v. Fleming’s Heirs, 29 Mo. 152.]

III. The evidence quite conclusively shows that the defendant Ward was a purchaser in good faith, for full value, without notice of any infirmity in Berry’s title. Appellant, however, makes the point that the fact that the probate court proceedings were had without notice to him was shown by record constituting a part of Ward’s chain of title, and hence Ward should not be permitted to say that he had no notice thereof. As to this it may be said that the question here is not whether Ward acquired title through Berry’s deed-it is conceded that he did not-but whether under equitable principles he is entitled to have the land charged with the amounts expended by him in the payment of taxes and the making of permanent improvements. In the determination of that question the doctrine of constructive notice is without application. His good faith can be challenged only on the ground that he had actual knowledge of the defect in the title, or knowledge of such facts and circumstances as would have put a man of ordinary circumspection upon inquiry. [Brown v. Baldwin, 121 Mo. 106, 115.]

As was said by Goode, J., in Gallenkamp v. Westmeyer, 116 Mo. App. l. c. 689, “the essential matter in this connection is the good faith in which the improve-meats were made-the fact that the party in possession made them believing he had ,a good title; not that, by a recondite investigation, he might have ascertained he had a bad or a limited one.” Even if Ward knew at the time he received the deed from Berry and paid the purchase money that the probate court proceeding was had without notice to Sh.anklin, yet, unless he also knew that by reason thereof the proceeding was void, or that Berry had no title, he would not be precluded from relief. Where manifest justice and equity require it, a court of equity will relieve one from the consequences of a mistake as to title to real estate, even though the mistake is one of law. [10 R. C. L., p. 311 sec. 54.] It is entirely clear that under the circumstances of this case the respondent is entitled to be reimbursed for the moneys expended by him, on the faith of his title, in making permanent improvements and in discharging liens against the property.

IY. While Berry had no legal title to the real estate in controversy, yet, as already shown, he had an equitable interest therein-the right to have it charged with the repayment of the purchase money and taxes paid by him, with interest up to the time of such repayment, less the rental value, with interest, during the time he was in possession; and his deed to Ward invested the latter with that interest. [Valle’s Heirs v. Fleming’s Heirs, supra; Bruschke v. Wright, 166 Ill. 183; Bright v. Boyd, 1 Story, 478.] The trial court, therefore, in stating the account between Shanklin and Ward, should have allowed the latter $2500 with interest from May 3, 1904, instead of $2600 with interest from February 28,1905, and taxes for the years 1900 to 1918-, inclusive, with interest, instead of for the years 1905 to 1918; and he should have deducted from the total of these amounts the rental value of the premises, with interest, from May 3, 1900, to the time of entering the decree. In this connection it should be said that no question is raised by either party with respect to the allowance of interest by the court below, and in any event the court’s action in that regard was in accordance with the equities of the case. [Woerz v. Rademacher, 120 N. Y. 62; Stump v. Hornback, 109 Mo. 272, 281.]

V. The item of $504 allowed respondent by the circuit court was for seven annual interest payments on the $1200 school-fund mortgage. The original indebtedness represented by the mortgage was incurred for the payment of the cost of street improvements which presumably constituted a lien on the property in controversy. In 1911 when the mortgage was given, the title to the property was in such a state of uncertainty that neither appellant nor respondent could borrow money on it without the other joining in the execution of the lien papers. Evidently they both then thought that the property should be charged with the payment of the $1200' and the interest thereon, because they joined in the bond and mortgage; and that the one who ultimately secured the title should take with it the burden of the- debt. It turns out that appellant is the owner of the property; the debt, therefore, is likewise his, and the court very properly charged him with its payment. It was necessary for respondent to pay the annual interest as it accrued in order to protect his own equities in the property, hence he is entitled to have it charged with a lien in his favor to the amount of such payments.

We -are unable to modify the judgment of’ the trial court so that it will conform to the equitable principles we have pointed out as controlling on the facts In proof, because the record contains no satisfactory evidence as to the rental value of the premises from 1900 to 1905, while in the possession of Berry, and no evidence at all as to the payment of taxes during that period. The judgment, therefore, will be reversed and the cause remanded with directions to the circuit court to hear such evidence as the parties may desire to offer as to the items just mentioned, and on the finding with respect to them, in addition to the findings already made, to enter a decree in accordance with the views herein expressed.

Small and Brown, CC., concur.

PER CURIAM:&emdash;The foregoing opinion of Rag-nAND, C., is adopted as the opinion of the court. All of the judges concur.

ON MOTION TO MODIFY

RAGLAND', C.-Appellant asks that the foregoing opinion and the judgment here in conformity therewith be so modified that the trial court will he required to hear and try de novo the issue with respect to the rental value'of the premises in controversy from May 3, 1900, to the time of entering the decree, and, in stating the account between appellant and respondent, Ward, to charge the latter with “whatever is received” by him from the insurance company.

The court below in its finding and decree charged respondent with rents which in the aggregate were but little more than one-half of the rental value of the premises for the period covered, as fixed by respondent hirnse~f. In doing so it was manifesUy in error. But appellant in his original briefs filed here expressly waived all questions as to the correctness df the trial court's holdings with respect to the rents, and sought a reversal on other grounds. I-Ic now insists, however, that his waiver! was for the purpose of the appeal only, and that in as much as a further hearing is to be had hi order to determine the rental value from 1900 to 1905, the question of the rental value for the entire period should be tried anew. Thiis~ contention should be allowed.

With respect to the insurance the references to it in the records here are so meager and fragmentary that it is impossible to form an intelligent opinion from them as to the respective rights of the parties in relation to it. It does appear that after the institution of this suit a roof on the dwelling house was burned and the building otherwise damaged by fire, and that Wai-d at the time had a policy of insurance on it in his favor in the sum of $2500. There are intimations in the briefs of counsel that "Ward and the insurance company were engaged in litigation ■ over the matter, and that appellant was trying in some way to intervene therein. So that respondent has not yet received any insurance, and may never do so. But be that as it may, there is sufficient in the record to indicate that appellant has changed front since the trial. Prom his pleading and from one of his declarations of law, as well as from certain objections he made during the reception of the evidence, his position then seems to have been that respondent was not entitled to any allowance for permanent improvements made on the premises, because the enhanced value by reason thereof was lost through damage by fire, and that such loss, which was covered by insurance, was respondent’s. The trial court seems to-have accepted appellant’s theory, because it refused to allow respondent for any permanent improvements, or for any of the premiums he had paid for insurance; neither did it require him to account for insurance that he might hereafter receive. This must have been entirely satisfactory to appellant, for there is no inference in his motion ..for a new trial to the court’s action with respect to the insurance. He is not now entitled to have a new trial as to this phase of the case.

As additional taxes have accrued, and may have been paid by respondent, since the rendition of the judgment nisi, our opinion and judgment `will be so modified that the trial court may hear additional evidence as to the payment of taxes by respondent or his grantor, regardless of the time when made, as well as evidenee relating to the rental value. Accordingly, the circuit court is directed to hear such further evidence as the parties may desire to offer as to the rental value of the premises from May 3, 1900, to the time of entering the decree, or the surrender of the possession by respondent if that should occur sooner, and as to the payment of taxes during said period, and on findings with respect to them, in addition to the finding's already, made on other issues, to enter a decree in accordance with the views expressed in this and in the original opinion. Small, G., concurs; Broivn, G., absent.

PEE CUBIAM:—The foregoing opinion by RaglaND, C., is hereby adopted as the opinion of the court. All of the judges concur.


author: JAMES T. BLAIR, J.

text:
    ELIZABETH B. QUIGLEY, Administratrix of Estate of JAMES H. QUIGLEY, Appellant, v. WALKER D. HINES, Director General of Railroads in Charge of and Operating ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY and TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS.
    Division One,
    December 19, 1921.
    1. NEGLIGENCE: Irregular Train: Pedestrian: Experienced Engineer: Assumption of Bisk. Plaintiff’s husband had been in railroad service for thirty-two years, and had served as an engineer on defendant railroads for twenty-five years. On the day of his injury he had been at work on the Illinois side of the Mississippi, but his home was in St. Louis. To carry sueh workmen to their homes at the end of the day’s work, the railroads ran a cab train, consisting of an engine and one car. West of the west end of the bridge were double tracks, with sufficient space between them to permit persons to walk therein with safety, and it had been so used that it was the defendant’s duty to expect pedestrians therein. In crossing the bridge the cab train used the west-bound track, but at the west end a long freight train occupied that track, and the cab train was deflected to the south or east-bound traek. Plaintiff’s husband was walking west in the space between the two tracks, and when the cab train was about two hundred feet from him the bell was rung and the signal sounded, and in response he gave a signal to "come on, everything is clear,” and the engineer saw and understood his signal, and the train proceeded at a speed of seven or eight miles per hour. Suddenly when the train was about to pass him, he left the path in which he was walking, stepped in front of the train and was immediately struck, and there is no evidence that his danger, after he started to go upon the track, was or could have been seen in time to save him. Helé, that, under the Federal rule, -he assumed the risk, and plaintiff cannot recover.
    2.-: Irregular Train: Ipso Facto Negligent. The mere fact that a west-bound train is running on the east-bound track, contrary to the usual custom, is not of itself evidence of negligenee. The question still remains whether its crew, in all the circumstances, used due care.
    3. -: — -: Negligent Handling of Train: Warning. Where the west-bound train was on the east-bound track, was running at a speed of seven or eight miles an hour, a pedestrian was seen walking in the space between the tracks one or two hundred feet ahead, the bell was rung and the whistle sounded, he observed the warning and signaled the engineer to 'come on, everything is clear,” the engineer saw his signal and proceeded at the same speed, he suddenly left the place of safety and stepped upon the track in front of the on-coming train, it being then too late to stop it, the crew were not negligent in handling the train.
    4. -: -: Ordinary Care. The rule that the crew of a westbound train on an east-bound traek should have cheeked or stopped its speed in time by the exercise of ordinary care to have avoided injuring a pedestrian walking in a place of safety between the tracks does not mean that the train must have been under such - control that it could not have passed him at all.
    5. —--: -: Danger Signals: Others: Knowledge. Where it was customary for a cab west-bound train to run on an east-bound track when a freight train occupied the west-bound track, and a pedestrian knew that fact, and warning by ringing the bell and sounding the whistle was given, which he observed and understood, it was not necessary for the railroad company to prescribe rules calling for signals other than danger signals.
    6. -: -: Assumption of Risks: Federal Rule. Under the Federal rule the servant assumes extraordinary risks incident to his employment or risks caused by his master’s negligence which are obvious or fully known and appreciated by him. So that, even if it be assumed that it was the duty of defendant railroad company to prescribe rules requiring definite signals, other than danger signals, to be given to apprise its employees using its tracks that an on-coming train was running irregularly, a pedestrian, walking in a place of safety between -the tracks, who had had twenty-five years experience as an engineer in defendant’s employment, and knew that there were no such rules and that the train which struck him when he suddenly stepped upon the track in front of it was running irregularly, and observed and understood the danger signals given, assumed the risk of his consequent injuries.
    Appeal from, St. Louis City Circuit Court. Hon. Gran-ville Hogan, Judge.
    AKKIRiMBD.

      W. H. Douglass for appellant.
    (1) The deceased was engaged in interstate commerce at the time he sustained the injliries. (a) In doing repair work on tracks of an interstate railroad the employees engaged in tins work are employed in interstate commerce. Pederson y. Railroad, 229 U. S. 146; Southern R. R. v. Accident Comm., 251 TJ. S. 263; 1 Roberts’ Federal Liability of Carriers, secs. 468, 469, 481, 482, 473, 474; Southern Railroad v. McGuin, 240 Fed. 649. (b) The deceased at the time he sustained the injury was on his way home and still on the premises of the defendant, and while returning to and from his work was still 'employed in interstate commerce. 1 Roberts’ Federal Liability of Carriers, sec. 556, p.. 784; Erie Railroad Co. v. Winfield, 244 TJ. S. 173; North Carolina Railroad y. Tachary, 232 U. S. 260; Williams v. Scharff, 222 S. W. (Mo.) 412. (2) It was the duty of the defendant to anticipate the presence of deceased walking between these tracks and in a position of danger, as the testimony shows that employees usually and frequently walked along this approach on their way to and from their work. Dunn v. Railroad Co., 192 Mo. App. 268; Justus y. Railroad, 224 S. W.-83; Thorp v. Wabash Ry. Co., 206 S. W. 403; L. & N. Railroad Co. v. Eyersolle, 178 Ky. 67, L. R. A. 1918B, 211; Stark v. Lusk, 194 Mo. App. 250; G-ray v. Wabash Railroad, 198 S. W. 1137; 4 Thompson on Negligence, seo. 4456; Feldman v. Railroad, 175 Mo. App. 629. (3) The deceased, in walking between the tracks on the approach, was in a position where a step to the side would place him in a position where he would be struck by a passing train, and he was therefore in a position of danger in walking between these tracks on the approach. Dunn v. Railroad Co., 192 Mo. App, 268; Southern Railroad Co. v. MeGuin, 240 Fed. 651; Barry y. Railroad, 98 Mo. 62. (4) It was the duty of defendant to adopt some reasonably safe system of signals or method of signaling employees walking between the tracks of the approach of a train being run on the wrong track, that is, irregularly, as' an employee walking between these tracks was in a position of danger. Southern Railroad Co. v. MeGuin, 240 Fed. 651; Reagan y. Railroad, 93 Mo. 352; Gaska v. Car Co., 127 Mo. App. 180. (5) Deceased, in walking between the tracks on the approach, was in a position of peril, especially in view of the fact that a westbound train was approaching on the eastbound track, as a single step' to the side would place him in a position to be struck by the train and it was the duty of the defendant’s employees in charge of the train to keep it under control, run it at such a rate of speed and stop it or give a warning of its approach on the wrong track in time to avoid injury to deceased. Gray v. Wabash Railroad Co., 198 S. W. 1137; Southern Railroad Co. v. MeGuin, 240' Fed. 649. (6) Even though deceased may have been guilty of negligence this would not defeat .plaintiff’s right to recover under the Federal Employers Liability Act if the defendant was guilty of any negligence, which in any degree contributed to the injury. Brightwell v. Lusk, 194 Mo. App. 647; Penn. Co. v. Cole, 214 Fed. 948; Sec. 3, Chap, 149, 35 U. S. Statutes at Large, p. 66; Southern Railroad Co. v. MeGuin, 240 Fed. 652. (7) If from all the facts in this case an inference of negligence is permissible, then, it is a case for the jury. Myers v. Coal Co., 233 U. S. .192; Jones-v. Railroad Co., 178 Mo. 543; Settle v. Railroad, 127 Mo. 341; Leeright v. Ahrens, 60 Mo. App. 178; Middleton v. L. TI. & P. Co., 196 Mo. App. 263. (8) Deceased was not guilty of assumption, of risk, (a) Either under the common-law assumption of risk as interpreted by our State courts. Williams v. Pryor, 272 Mo. 613; Fisk v. Eailroad, 263 Mo. 106. (b) Or under the common-law assumption of risk as interpreted by the Federal courts. Texas & Pac. Ey. Co. v. Swearingen, 196 U. S. 51; Eail-road v. McDade, 191 U. S. 64; Eailroad Co. y. Hall, 232 U. S. 101; Yazoo Eailroad Co. v. Wright, 235' U. S. 376; Chesapeake & Ohio v. Proffitt, 241 TJ. S. 468; Chesapeake & Ohio v. DeAtley, 241 U. S. 315; Erie Eailroad Co. v. Purucker, 244 U. S. 320:; Southern Eailroad Co. y. Mc-Guin, 240 Fed. 649. (9) Whether or not deceased was guilty of assumption of risk is a question for the jury. Erie Ey. Co. v. Purucker, 244 U. S. 320; Southern Bail-road Co. y. McGuin, 240 Fed. .649, 652.

      J. L. Howell and W. M. Hesel for respondents.
    The instruction requested by the defendants, and given by the court, in the nature of a demurrer to the evidence, was properly given. (1) Because the deceased had heard the danger signals and had given the railroad sign “come on” while he was in a place of safety, and for the reason that there was nothing to* suggest to the engineer that Quigley did not know the train was on the eastbound track. Southern Eailroad Co. v. McGuin, 240 Fed. 649; Eailroad Co. v. Eversole, 198 S. W. 548; Erie Eailroad Co. v. Purucher, 244 U. S. 3201; Dunn v. Eailway Co., 192 M;o. App. 260i. (2) Because under the circumstances there was no duty on the part of the engineer to stop his train until Quigley left the place of safety and put himself in peril; and there is no testimony that the engineer could have stopped the train in time to have avoided injuring him after he put himself in peril. Baecher v. Eailroad, 240’ Mo. 519; Steele v.' Eailroad, 265 Mo. 97: (3) Because the deceased assumed the risk, if any, created by the failure of the defendants to establish signals calculated to specifically warn of the irregular running of trains, even though it be held that failure to provide such signals was negligence. Boldt v. Railroad, 245 U. S. 442.
   JAMES T. BLAIR, J.

This is an action for damages for the death of James H. Quigley, who was struck and killed by a train operated by employees of respondent. At the close of appellant’s evidence the trial court’s rulings resulted in an involuntary nonsuit. The motion to set aside was overruled, and judgment entered accordingly. This appeal followed.

The railroad upon which Quigley was killed crossed the Mississippi River at St. Louis on the Merchants Bridge. There were two tracks. There were two approaches to the bridge from the west. One of these led to the northwest, and is called the Carrie Avenue approach. The other led west and then curved to the south, and is called the Bremen Avenue approach. This approach carried two tracks and upon it the accident occurred. From the west end of the bridge the Bremen Avenue approach consisted, for some distance, of trestle work. The fill upon which the tracks continued from the end of this trestle was about thirty feet high where it joined the trestle. The grade descended thence toward Bremen Avenue. The top of this fill was broad. It carried two tracks. There was a space between these tracks which, the witnesses say and the photographs introduced by appellant show, was ample to permit a pedes-train to walk with safety between them when both tracks were occupied by moving trains. The-evidence tended to show that employees of respondent had so used this approach in going to and from their work that it was respondent’s duty to expect them upon it. Quigley had been in railroad service for thirty-two years, and had •served as a railroad engineer on the roads in question for twenty-five years. On the day he was killed he had been at work on the Illinois side. His day’s work done, he was on his way to his home in St. Louis. The train which struck him consisted of an engine and one car. Its function was to take employees to their work and, after that work was done, to their home side of the river. It was called the cab train. On this occasion it came from the Illinois side to the Missouri side. When it reached the bridge.it was found that the north, or westbound, track was occupied by a long freight train. The crew of the cab train were directed to proceed with their train across the bridge on the south, or east-bound track. This they did. The train reached the west end of the bridge. In doing so it passed the long freight train which occupied the north track. It then proceeded to the junction of the Carrie Avenue and Bremen Avenue approach. The testimony is that Quigley was at this point when the cab train was there. He proceeded down the approach, between the tracks. Subsequently the cab train started down the Bremen Avenue approach, still on the southern or southeasterly track. The only crossover by which it might pass to the right-hand track was near Bremen Avenue and 'somewhat beyond the point at which Quigley was struck. Quigley had reached a point several hundred feet ahead of the train before it left the. Carrie Avenue junction point. After leaving this point the train attained a speed of about twenty-five miles per hour. The tracks leave the bridge in a westerly direction and curve to the south. There is a steady curve, which reaches its sharpest state at a point somewhat southwest of the place of injury. The émployees operating the engine of the cab train, when about two hundred feet from Quigley, observed him. The bell had been ringing and continued to ring. The engineer had commenced to slow down for the Bremen Avenue stop. "When he saw Quigley at the distance stated he began to give the danger signal. This was given until Quigley partly turned and looked toward the on-coming train' and sig- ~ naled to the engineer, to “Come on. Everything is all right. Everything is clear.” The train’s speed was still being gradually reduced for the contemplated stop, and had been cut down seven or eight miles per hour when the train reached a point a few feet behind Quigley. Suddenly, and when the train was about to pass him, Quigley left the path in which he was walking and stepped upon the track in front of the train and was immediately strnek. There is no evidence that his- danger, after he started to go npon the track, was, or could have been, seen in time to save him. The testimony was direct that Quig-ley was walking in such a place between the tracks that no danger to him was suggested to the train crew, and that he would have been in no danger if he had not suddenly stepped aside from that place and put himself in front of the train. The testimony is that, while the other track was the one generally used for trains going in the direction in which the train which struck Quigley was moving and while it was known as the “regular east-hound track,” yet there was nothing unusual in the use of the “regular east-bound track” for west-hound trains; that it was customary so to use it when the regular west-hound track was occupied hy another train (as in this case) or it was under repair Or obstructed or not available for any reason; that it was customarily so used under such conditions; that it occurred frequently, and any railroad men who had been in the service “for any length of time” knew that was the manner of operation.

I. For the purpose of this appeal respondent concedes that Quigley was walking along the approach at a place where employees frequently walked and should have been expected to have been found; that Quigley was then in respondent’s service and that both were at the time engaged in interstate commerce ; that while Quigley was walking in a safe place, yet there might be danger by reason of his stepping aside from a train approaching from the rear on an irregular run, and that' these facts are to be considered in determining-; whether the care used by respondent’s employees was due care, in the circumstances; and that these concessions put the question of contributory negligence out of the ease in so far as concerns.the issues in this court.

II. The mere fact that the cab train was running west on the east-bound track is not, of itself, evidence of negligence. [Southern Ry. v. McGuin, 240 Fed. l. c. 651; Imler v. N. P. Ry. Co., 89 Wash. 527, L. R. A. 1916D, 702.] The question remains, whether, in all the circumstances, including the fact mentioned, the crew used due care. Quigley was in a place which was safe enough had he continued there. Let it be assumed he was so near the track that a duty to warn him aro~e. That duty was performed. The bell was rung continuously. When it was not seen that he heeded this signal and while the train was yet one hundred and fifty or two hundred feet away, the engineer began giving the danger signal. Quigley heard this and understood its import. I-Ic turned toward the on-coming engine and waved to the engineer to "come on; everything is all right; everything is clear." When this signal of Quigley was seen and uiiderstood, the engineer proceeded. The train was gradually slowing down for the stop at Bremen Avenue. When the engine was within a few feet of Quigley he suddenly. stepped in front of it. It was too late to save him. This is appellant's evidence. It is suggested that the train should have been kept under control, and "under control" is defined as "under such control that respondent's employees could have checked it or stopped its speed in time by the exercise of ordinary care to have avoided injury to deceased." If this rule, as defined, applied to this situation, the cab train could not have passed Quigley at all. The engineer had proceeded upon the theory that Q~uigley was entitled to notice of his approach. He had notified him. He had seen Quigley look back and signal the train to come on; that everything was clear. In so far as the mere handling of the train at the time is concerned, that was a signal which entitled the engineer to proceed and to pass Quigley. The rate of speed is neither alleged nor shown to have been negligent. No confusing signals were given. In the circumstances it does not appear that the train was negligently handled.

Appellant relies upon the McGuin Case. The facts of that ease were not like those in this case. MeGuin was walking between double tracks. A, train approached him from the rear. The testimony which was held to entitle the plaintiff to go to the jury was that of Miller, who said that no signal at all was given until MeGuin started to cross the track in front of the on-coming train; that the danger signal was then sounded, but it was too late. The train was on the irregular track. The testimony of other witnesses makes a case something like that here. Their testimony, it is clearly indicated by the court, would not have justified a finding for MeGuin. In fact, it is the difference between Miller’s testimony and testimony almost like that in this case which is made the foundation of the ruling that a finding of liability could be sustained.

Appellant also relies upon L. & N. Railroad Co. v. Asher’s Admr., 178 Ky. 67. In that case a section hand was aiding in clearing away earth which had slid down near, and to some extent upon, the south-bound track of the railroad. This was near a sharp curve. Deceased was sent north to get a plank. On his return he walked down the north-bound track. Half an hour prior thereto a south-bound train had used the south-bound track under slow orders and proceeded on its way. No notice of an intention to route south-bound trains over the northbound track was given; no south-bound train previously 'had used the north-bound track. As deceased neared the working place a passenger train running south at the rate of forty-five miles an hour came suddenly around a sharp curve and along the north-bound track on which deceased was walking and struck him. No warning was given by the train before Asher was seen by the crew, and it was then too late. The case is quite unlike this case.

III. It is contended respondent should have prescribed rules which would have called for signals, other than danger signals, to notify employees using the approach that a train was running irregularly.

1. Appellant proved that Quigley knew tliat it was customary for trains to run irregularly in circumstances like those existing- at the time, i. e. when a slower train occupied the regular track. It is also clear he heard the signals given, sa.w the train and signaled it to come on. It is difficult to see what more information would have been given him if signals other than those given had been used.

2. The Federal rule concerning assumption of risk applies in this case. [Pryor v. Williams, 254 U. S. 43.] For present purposes let it be assumed that it was the duty of respondent to prescribe rules requiring definite signals, other than danger signals, to be given to apprise employees using the approach that a train was running irregularly. There were no such rules. Quigley had been in service on these railroads for thirty-two years— twenty-five years as an engineer. It is beyond doubt that he knew there were no such rules and that he knew trains were run irregularly in various circumstances and in the very circumstances which existed at the time; for appellant argues he crossed the river on the freight train which then occupied the west-bound track on the bridge. There could be no doubt in the case about Quigley’s appreciation of the danger if he knew the facts just stated as known to him. Under the Federal rule it “is settled that the servant assumes extraordinary risks incident to his employment or risks caused by his master’s negligence which are obvious or fully known and appreciated by him” (citing authorities). [Boldt v. Penn. R. R. Co., 245 U. S. l. c. 445.] The trial court was right in ruling that appellant’s evidence showed she had no cause of action.

The judgment is affirmed.

All concur.