text:
    MICHAEL S. SWISHER, Appellant, v. OTIS A. PEMBERTON.
    Division One,
    March 28, 1913.
    1. PARTITION DEED: Conveying Less Than Decree Ordered: Cut Down by Description: Surplusage. Where a sheriff, acting as commissioner in partition, directed by the order of court to sell a particular tract of land, fails or refuses to sell all the land as defined and bounded by the decree, his deed’ for the lesser quantity actually sold by him cannot be construed as a deed for the whole tract. His deed carries title only for what was actually sold. If in his deed describing the tract described in the decree he added a description of the boundary line thereof which curtailed the tract, and at the sale announced that he would sell the tract subject to that boundary line as made by a surveyor, the court, in an ejectment brought by the purchaser at the partition sale, cannot reject that description in the deed as surplusage. The rule that clerical errors or misstatements contrary to the general purposes expressed in the deeds of sheriffs, administrators and other ministerial officers of the court may, in construing the instrument, be stricken out as surplusage, does not apply to such a case.
    2. -: -: -: Land Unsold: Quitclaim: Suit to Quiet Title. That part of the land described in the decree in partition and ordered by it to be sold, which was not sold and which was not embraced in the sheriff’s deed, thereafter still belongs to the coparceners if'they owned it at the time of the decree; and if the purchaser at the partition suit subsequently acquired their title to that unsold part by quitclaim deeds, and he brings suit against the adjoining ow,ner who claims that strip, to quiet the title, it is the duty of the court to ascertain and determine the title, although plaintiff’s count in eject ment based on his sheriff’s deed must fail.

      Appeal from Saline Circuit Court. — Hon. Samuel Davis, Judge.
    REVERSED AND REMANDED.

      T. H. Harvey for appellant.
    (1) The court officer is presumed by the law to perform bis engagements and duties. Agan v. Shannon, 103 Mo. 661; Lenox v. Harrison, 88 Mo. 491. (2) Could the sheriff, at his said sale, disregard the order of the circuit court, and sell only so much of the land as he was directed to sell by the attorney for plaintiffs? The answer to this question must be in the negative, even though all the parties to the suit had so agreed. The order of sale, based on the partition decree, is the sheriff’s authority, to make the sale. Hughes v. Hughes, 72 Mo. 136; Agan v. Shannon, 103 Mo. 661; Loring v. Groomer, 110 Mo. 632. .(3) A particular description in a deed, which is contrary to the general intention and purpose of the deed should be rejected as repugnant. Agan v. Shannon, 103 Mo. 661; Thomson v. Thomson, 115 Mo. 56; Mitch-ener v. Holmes, 117 Mo. 185; Johnson v. Boulware, 149 Mo. 451; Johnson v. Johnson, 170 Mo. 34; Goiter - mann v. Schiermeyer, 111 Mo. 404; West v. Bretelle, 115 Mo. 653; Evans v. Greene, 21 Mo. 170; Tiedeman on Real Property, sec. 829; 8 L. R. A. (N. S.) note, pp. 1038, 1039. (4) The trial court held that before the plaintiff could recover, he must first bring a suit to have his deed corrected. This we contend was error. We are aware of a line of cases which on casual examination might lead to this conclusion, but when carefully considered do not so hold. In all of them the description was either false or so defective as only to convey an equitable title, and under such circumstances it was held plaintiff’s remedy would be to get a corrected deed in the statutory way. But where the land is properly described in the first place and a clause is afterwards inserted restricting or cutting down the property conveyed, then the words of such restriction will be treated as surplusage. West v. Bretelle, 115 Mo. 653; Johnson v. Boulware, 149 Mo. 451; Evans v. Greene-, 21 Mo. 170; Presnell v. Headley, 141 Mo. 187. (5) The evidence showed that the strip of land in controversy was a part of said quarter quarter section. (6) Under the second count of the petition, it was the duty of the court to ascertain and determine the estate, title and interest of the parties to the suit. Richards v. Mining Co., 221 Mo. 149.

      Reynolds & James for respondent.
    (1) The strip of land sought to he described in the petition does not lie in the southwest quarter of the northwest quarter of section 21, hut lies wholly in the northwest quarter of the southwest quarter of said section. This fact is incontrovertibly shown from the testimony and from the survey of Latimer, the surveyor. (2) The Latimer survey was made in accordance with the provisions of the statutes governing surveys, and is a correct survey and establishment of the line between the southwest quarter of the northwest quarter of section 21, and the northwest quarter of the southwest quarter of said section lying south thereof. According to the Latimer survey, the line runs through the center of said section 21, east and west, and divides it in halves. The effect of said line is also to make an equal number of acres in the southwest quarter of the northwest quarter, and in the northwest quarter of the southwest quarter. R. S. 1909, secs. 11313 to 11321. (3) The plaintiff in ejectment must recover upon the strength of his own title. Marvin v. Elliott, 99 Mo. 616; Mather v. Walsh, 107 Mo. 121; West v. Bretteells, 115 Mo. 653; Mutherin v. Simpson, 124 Mo, 610. (4) Likewise when the court is asked to determine and declare the title, it must be the title which plaintiff, by his deeds and muniments of title presents. (5) In ejectment the plaintiff mnst have the legal title. "Williams v. Carpenter, 35 Mo. 52; Hnnt v. Selleclc, 118 Mo. 588; Pierce v. Lee, 197 Mo. 480; Shaffer v. Detie, 191 Mo. 377; Martin v. Kitchen, 195 Mo. 377. (6) An equitable title alone will not support ejectment. Shaffer v. Detie, 191 Mo. 377; Martin v. Kitchen, 195 Mo. 477. (7) The proceedings in partition in this case, outside the deed, did not vest the legal title to the southwest of the northwest quarter of section 21, in the plaintiff. He was hound to have the -sheriff’s deed. R. S. 1909, sec. 2596. (8) If the deed be defective, or does not properly describe the lands, the purchaser’s remedy is to bring the matter to the attention of the court in which the sale was had, by motion showing the facts, and upon such motion obtain an order of the court for a new and corrected deed from the sheriff. R. S. 1909, sec. 2597; Howell v. Sherwood, 242 Mo. 513.
    STATEMENT BY THE COURT.
    On the 18th of January, 1908, the sheriff of Saline county executed to plaintiff a deed to the following tract of land, which had been sold by him under a judgment in partition between the devisees of the former owner of said land; to-wit: “the southwest quarter of the northwest quarter of section' 21, township 51, range 20, in.Saline county, Missouri, subject to the survey as to the south line made by Frank M. Lat-imer, surveyor of Saline county, Missouri, on the 25th and 26th days of November, 1907, and recorded in Surveyor’s Record Book J, page 190, as establishing the south line, and subject to the right of the tenant, O. A. Pemberton, to remove the fence built by him as teDant along the south line.” The said O. A. Pemberton was the.owner, at the time of his purchase of the above tract of land, of a quarter section lying immediately south of it, and was also in possession of that sold in the partition proceeding, as tenant of the parties to that suit. The plaintiff brought an action based on the sheriff’s deed to him and a quit-claim deed to him from certain of the parties to the partition suit, to recover “a strip of land off the south side of'the southwest quarter of the northwest quarter of section 21, township 51, range 2.0, 130 feet wide at the west end thereof and 104 wide at the east end thereof.” The first count of the petition was in ejectment, and the second count under the special statutory proceeding for trying titles of conflicting claimants. [R. S. 1909, sec. 2535.] The theory of plaintiff’s action was, that all the strip of land described in the two counts of his petition was conveyed to him by the aforesaid terms of the sheriff’s deed executed in the aforesaid partition proceeding and a portion by the deed of the quit-claimers. The amended answer of defendant as to the first count was a general denial and a further defense, that the parties to the partition suit under which said sheriff’s deed was made were the owners in fee of the land described, in that deed and only claimed title to the south boundary line located by said Latimer, and caused a statement to that effect to be made on the day of the sale under the partition suit, and that said plaintiff purchased at such sale only the land contained in the fractional section which lies north of the line surveyed and located by said Latimer. All of which is pleaded as matter of estoppel on the part of the plaintiff to question the accuracy of the said Latimer line of survey. Th@ defendant interposed the same defenses to the second count of plaintiff’s petition. Plaintiff replied by a general denial of the new matter contained in defendant’s answer, and alleged further that the order of the circuit court in the partition suit directed the sheriff to sell “the southwest quarter of the northwest quarter of section 21,” and that.the sheriff duly advertised that he would sell the southwest quarter of the northwest quarter of section 21, township 51, range 20; hut “that at the time of said sale the sheriff without any authority from said court stated that he would sell said land subject to the survey as to the south line made by Frank M. Latimer, surveyor of Sáline county, Missouri; on the 25th and ‘ 26th days of November, 1907; that at said sale the plaintiff bought said southwest quarter of the northwest quarter of said section 21, for the price and sum of $3740, and said sheriff executed and delivered to plaintiff a deed therefor; but after describing the same in said deed as “the southwest quarter of the northwest quarter of section 21, township 51, range 20;” without any authority from said court, or any other authority whatsoever, added the words, “Subject to the survey, as to the south line made by Frank M. Latimer, Surveyor of Saline county, Missouri, on the 25th and 26th days of November, 1907, as establishing the south line, and recorded in Surveyor’s Record Book J, page 190, as establishing the south line.” The reply of plaintiff further stated that the true south line of said fractional section had been recognized for sixty years by the owners of each side thereof as including the strip of land sued for and described in the petition, which lies south of the Latimer line of survey. Plaintiff prayed in his reply that the following terms, to-wit, “Subject to the survey, as to the south line, made by Frank M. Latimer, Surveyor of Saline county, Missouri, on the 25th and 26th days of November, 1907, and recorded in Surveyor’s Record Book J, page 190, as establishing the south line,” be construed as surplusage in the sheriff’s deed and as not prejudicing the title of plaintiff to the land in- controversy.
    On the trial there was evidence tending to show that- at the time of the partition sale, defendant was in possession of the fractional section of land referred to in tlie sheriff’s deed as the tenant of the parties to the partition suit, and was also in possession of the strip of land for which this action is brought; that after the sale and after plaintiff had received the sheriff’s deed to the land therein described, the defendant built a fence along the south line of the Latimer survey, thus taking possession of the strip of land in controversy; that prior to the said Latimer survey and for sixty' years the south line of the fractional section referred to was recognized as including the strip of land in ■ controversy, as appeared by two previous surveys and by the existence thereon of a hedge fence a part of the way and a rail and wire fence the rest of the way; that the strip of land in controversy now lies between the old fence on the south of the strip and the other fence built by defendant north thereof and upon the line of said Latimer survey described in the sheriff’s deed. There was evidence tending to show that prior to the sale by the sheriff he had advertised that he would sell' the land, describing it as “the southwest quarter of the northwest quarter of section 21, township 51, range 20.” There was evidence tending to show that with the assent of one of the parties and the attorney who brought the partition suit, but without the authority of all the parties, the sheriff and the attorney who brought the partition suit stated publicly to the bidders on the day of sale, that he would sell said land subject to the survey as to the south line made by Frank M. Latimer, Surveyor of Saline county, Missouri, on the 25th and 26th days of November, 1907, and so sold it and executed his deed accordingly.
    The cause was submitted to the court, a jury being waived, who after taking the case under advisement, rendered the following finding of fact: “And the court being fully advised of and concerning the premises finds the issues for the defendant,” and gave judgment accordingly, from which, the plaintiff has appealed to this court.
   OPINION.

BOND, J.

(after stating the facts as above).

As a basis for his prayer in his reply to defendant’s answer to strike out the clause in the deed to him from the sheriff which delimited the south boundary of the land sold by the sheriff, the plaintiff invokes the class of cases which hold that clerical errors or misstatements contrary to the general purposes expressed in the deeds of sheriffs, administrators and other ministerial officers of the -court may be stricken out as sur-plusage in the interpretation of such, instrument. There is no doubt about the correctness of this rule in cases to which it is applicable. It has often been applied in instances where a particular description in a deed is repugnant, to its general intention and purpose. [Agan v. Shannon, 103 Mo. 661; Thomson v. Thomson, 115 Mo. l. c. 63, et seq.; Evans v. Greene, 21 Mo. l. c. 208.] All of these rulings, however, upon the proviso that the deed or instrument shall be left with a sufficient description to identify lands sold after the elision of the inconsistent portion thereof. [Presnell v. Headley, 141 Mo. l. c. 191.] For in that event the deed may be enforced in a legal action, otherwise other steps are necessary to obtain a sufficient deed before it can be enforced as a muniment of title. [Dixon v. Hunter, 204 Mo. l. c. 387; Howell v. Sherwood, 242 Mo. l. c. 535.] But none of the cases go to the extent of holding that a deed which is insufficient to carry the legal title may be amended when introduced ás evidence on the trial of an ejectment suit by such additions thereto as will make a valid deed of an invalid one. Neither have we been able to find any case which holds that where a sheriff or administrator or other agent of the court is directed to sell a particular tract of land and either fails or refuses to sell all of the land as defined and hounded in the authority given to him, that his deed for the lesser quantity actually sold by him may be construed as a deed for the whole of the tract which he was authorized to sell but all of which he did not in fact sell. If is self-evident that the deed of the agent to sell can only carry title to what was actually sold by him. But that he could grant something which he had not sold is a proposition which is disproved by its mere statement. ’

In the case at bar, whether the sheriff was directed to sell the strip of land in controversy is wholly immaterial in the light of his subsequent actions. He did not sell that strip of land, and it was publicly announced when he was making the sale that he would not ,sell that particular piece of ground and that he would sell the fractional section only to an existing and duly recorded boundary line on the south. After the sale he made his deed in strict accordance with what was actually done. As far as the sale is concerned, the strip of land sued for has never been disposed of under the facts in this case. For it was not offered and no bids were received for it, and it is not conveyed in the deed made by the sheriff. If the parties to the partition proceeding under which this sale was made had any title to that strip of land prior to the sheriff’s sale, they have that title still unless they have conveyed it. It unquestionably did not pass under the sale and deed of the sheriff.

The learned counsel for appellant is wholly mistaken in the view, that there is any legal warrant for the effacement of the south boundary line of the fractional section recited in the sheriff’s deed. If that is stricken out, then the deed would- not speak the truth, but would purport to convey what has not been sold so far as it might be shown in the proqf that the fractional section was located so as to include the land sued for or had been extended over it by acts giving its owners title under the Statute of Limitation. The learned counsel for appellant are entirely correct in stating that the authority of the sheriff to sell in this case was limited by the interlocutory judgment in partition. [Loring v. Groomer, 110 Mo. 632.] And the sheriff should have conformed his actions strictly to this authority. But if the contention of counsel for appellant is correct, i. e., that the strip of land sued for is contained within the fractional section which the sheriff was directed to sell, then the sheriff disregarded his duty in the matter, for that he did not-sell that particular parcel of ground is plainly evidenced from his statements to the bidders at the sale and from the contents of the deed which he made to the purchaser. We are unable to find any theory of law upon which plaintiff could recover on the count in 'ejectment as being the owner in fee of the property in dispute under the sheriff’s deed exhibited to establish that fact; and we think the trial court was clearly right in holding that there could be no recovery on that count of plaintiff’s petition.

II. The right of plaintiff to recover on the second count of his petition presents a different question. That count was based upon section 2535, Revised Statutes 1909, providing a procedure for the trial of titles between rival claimants of real estate. The very issue presented was one of comparative title between the plaintiff and defendant as to this specific piece of land. [Richards v. Coal & Mining Co., 221 Mo. 149.] Plaintiff exhibited in sustention of his claim a quitclaim deed from certain of the parties to the partition suit. There was evidence tending to show that the ancestors of all the parties to the partition suit had acquired a fee simple title to this particular land under the Statutes of Limitation if not otherwise. This being the case, plaintiff was entitled to a finding on the count of the petition as to his rights under the quit-claim against any adverse claim of defendant. The court should have made that finding and should have embraced its finding on the previous count in ejectment as well as the latter finding in one general judgment.

The judgment in this case is reversed and the cause remanded to be tried in conformity with this opinion.

Woodson, P. JLamm and Graves, JJ., concur.


source: Caselaw Access Project

author: BLAIR, C.

license: Public Domain

text:
    JESSIE P. FARRAR v. METROPOLITAN STREET RAILWAY, Appellant.
    Division One,
    March 28, 1913.
    1. NEGLIGENCE: Pleading: Repugnancy. Allegations in a petition for damages for personal injuries, to-wit, that the street ear which injured plaintiff was exceeding the speed limit set by ordinance, and that the motorman discovered or ought to have discovered the plaintiff’s peril in time to avoid injuring her, are not repugnant.
    2.-: Evidence: Speed of Car. Evidence held sufficient to support a finding that the speed of the car which injured the plaintiff exceeded twenty miles an hour.
    3. -: -: -: Excessive. Where thére was evidence that the wagon which bore the plaintiff when she was injured by a collision with a street car was leaving the car tract, the team moving in a trot, thus making it clear that the corner of the wagon which was struck would in another moment have moved out of the danger zone, there is. ample evidence to support a 'finding that the speed of the car was the proximate cause of the injury if the jury found the speed excessive.
    4. -: -: -: Contributory Negligence: Presumptions of Law. In this suit for damages for personal injuries received in a collision between defendant’s street ear and a hay wagon on which plaintiff was riding there was testimony tending to show that the driver turned his horses sharply as the car was passing and thereby threw the rear of the wagon against the car, but, even if the driver’s negligence could be imputed to the plaintiff, which cannot be doné under the facts of this case, where there is, as well, ample evidence tending1 to show that the driver’s act had nothing to do with the injury, it cannot be assumed as a matter of law that plaintiff is barred by contributory negligence.
    5.-; -; -; -; -: other Facts. Where plaintiff was injured while sitting with her feet hanging over the side of a hay wagon as it was driven along near a car track, and it appears from the evidence that she was not in control of the wagon, that the street lights were burning so that the wagon could be seen 300 feet away,by the motorman of the car which struck it, and the gong on the street car was not rung, it cannot be said as a matter of law that there was such contributory negligence in this respect on plaintiff’s part as to bar recovery.
    6. -: -: Stopping Street Car: Humanitarian Doctrine. If there is evidence of any kind sufficient to support a finding that a car could have been stopped in time to avert injury after the danger was or ought to have been discovered, it will warrant the submission of the case to the jury on the humanitarian or last clear chance theory.
    7. -: -: -:-: Physical Facts. Held, that the physical facts do not preclude the application of the humanitarian doctrine in this personal injury suit.
    8. -: Instructions: Excessive Speed of Street Car: Moving Into Danger Zone. Where plaintiff was injured by a collision between a hay wagon, on which she was riding, and a street car, there being evidence that the car was exceeding the speed limit set by ordinance at twenty miles an hour, it was proper for the court to amend defendant’s instruction, asked upon the theory that when the motorman saw the wagon it was in the clear, by inserting words as follows: “If the motorman was .running the car not over tioenty miles per hour and saw the wagon . . . put of range,” etc.
    9. EVIDENCE: Impeachment: Previous Testimony of Witness. A transcript of a previous examination, not signed by the witness and therefore not a deposition, may, when it relates to a material matter, be admitted for impeachment after a proper foundation is laid.
    10.REMARKS OF TRIAL JUDGE: Opinion Evidence. When a wagon driver was testifying as to the effect upon the rear of his wagon of a sharp turn of the front end, a circumstance he did not observe when the collision occurred which injured plaintiff, the judge remarked that the witness must not testify “by conjecture or conclusion,” and then said, “the witness says he knows but the court rules he does not know.” Defendant’s attorney excepted, whereupon the judge took the witness and showed that he did not know as a fact, and then remarked: “Now, the ruling of tile court was correct and counsel is rebuked for making a prejudicial objection in front of the jury.” Counsel excepted and the court said, “He shows by his testimony he doesn’t know.” To this counsel twice excepted. The court then said: “I won’t haye any defiance of the rulings of the court. Go ahead.” Held, not reversible error.
    11. NEGLIGENCE: Verdict: Excessive. Where plaintiff, a young unmarried woman, was so injured by the negligence of defendant’s servants that her left leg had to be amputated seven and one-half inches below the knee, a verdict for her for $15,000 is affirmed by the Supreme Court provided she remit $5000.
    Appeal from Jackson Circuit Court. — Hón. John G. Park, Judg'e.
    Heeiemed (conditionally).

      John H. Lucas for appellant.
    (1) There is no evidence sufficient to sustain either specification of negligence. (a) Excessive speed, no credible evidence, contrary to physical facts, not proximate cause, contributory negligence. 3 Cham-berlayne, Evidence, sec. 2086; Muth .v. Railroad, 87 Mo. App. 434; Burge v. Railroad, 148 S. W. 932; McCreery v. Railroad, 221 Mo. 18; Morkawitz v. Railroad, 186 Mo. 350; Moon v. Railroad, 141 S. W. 870; Marsh v. Railroad, 104 Mo. App. 577; Burleigh v. Railroad, 124 Mo. App. 724; Schmidt v. Tran'sit Co., 140 Mo. App. 187. (b) Humanitarian rule, no credible evidence conjectural, against physical facts, not proximate cause. Roenfeld v. Railroad, 180 Mo. 565; Boring v. Railroad, 195 Mo. 552; Grourley v. Railroad, 35 Mo. App. 92; Heinz!e v. Railroad, 182 Mo. 554; Senn v. Railroad, 108 Mo. 151; Burge v. Railroad, 148 S. W. 931; Wasmer v. Railroad, 148 S. W. 155; Matz v. Railroad, 217 Mo. 275; Schmidt v. Transit Co., 140 Mo. App. 187. (2) Admission and exclusion of evidence. Paper claimed to be deposition of I. N. Hargis. Glasgow'v. Railway,’191 Mo. 368; Chalmers v. Rail-xoad, 153 Mo. App. 61. (3) Excessive verdict. Richardson y. Railroad, 233 Mo. 346; CMtty v. Railroad, 166 Mo. 443. (4) Misconduct of court. State v. Reed, 58 Mo. 507; Landers v. Railroad, 134 Mo. App. 88; Rose y. Kansas City, 125 Mo. App. 236.

      J. Walter Farrar and White & Lyons for respondent.
    (1) There was evidence sufficient to sustain both allegations of negligence, i. e., that the car was being operated in excess of the ordinance speed limit of twenty miles per hour, and there was sufficient evidence to submit the case to the jury on the humanitar-' ian doctrine. (2) The allegations of negligence in the petition were not inconsistent, as the excessive rate of speed, in violation of the ordinance, and the failure to attempt to stop the car until it struck the wagon, when it could have been stopped within twenty feet, if it had been going in accordance with the ordinance speed limit, according to the admissions of the motorman, were thoroughly consistent allegations of negligence. White v. Railroad, 202 Mo. 539; Alten v. Railroad, 133 Mo. App. 425; Thompson v. Livery Co., 214 Mo. 487; Strauchon v. Railroad, 232 Mo. 587. . (3) There was not a particle of evidence in the record showing contributory negligence on the part of the plaintiff, and the negligence of the driver of the wagon could not be imputed to the plaintiff. Sluder v. Transit Co., 189 Mo. 143; Little v. Hacket, 116 U. S. 366; Lewis v.. Railroad, 162 N. Y. 52; Cotten v. Railroad, 109 N. W. 835; Transit Co. v. Norton, 141 Fed. 599; Becke v. Railroad, 102 Mo. 544; Dixon v. Railroad, 104 Mo. 491. (4) Instruction 7-D was properly modified by the court before it was given, because in the manner in which it was asked originally it left wholly to the judgment of the motorman the issue of the negiligence of the defendant, predicated upon the hypothesis that he had the right to assume that the wagon was out of danger,’ and that he was not required to slacken the speed of the ear if lie thought he could clear the wagon until after he discovered he could not clear it. The motorman had no right to act upon any such rule, because where precious lives or limbs of citizens are at stake, if established, such a rule would mean to let the motorman, himself determine the case of the plaintiff by testifying as he did in this case, that he thought he could clear the vehicle, and hence did not slacken his speed. If this instruction were to become a rule of law, then the maimed and crippled citizens upon the public thoroughfares of crowded cities would he re-mediless in courts of justice. (5j For purposes of impeachment, when the motorman was brought upon the stand by the defendant, and testified to a diametrically opposite state of facts, the court permitted the plaintiff to ask this employee of the defendant the questions contained in his deposition for the purpose of showing self-contradiction contained in this formerly sworn testimony, and that this was competent for purpose of cross-examination and impeachment is held by all the authorities in courts where correct judicial standards obtain, for the purpose o.f arriving at the truth of any transaction. 2 "Wigmore on Evidence, pp. 1035, 1037, 1038, 1206; Railroad v. Artery, 137 U. S. 519. (6) The verdict is not excessive. Jewell v. Bolt and Nut Co., 245 Mo: 720; Tost v. Railroad, 245 Mo. 219; Stotler v. Railroad, 200 Mo. 107; Partello v. Railroad, 240 Mo. 122. (7) There was no misconduct on the part of the court. State v. Teeter, 239 Mo. 483; State v. Duestrow, 137 Mo. 44; State v. Pratt, 121 Mo. 566; State v. Etterige, 188 Mo. 352.
   BLAIR, C.

This is an appeal from a judgment for $15,000 recovered by plaintiff in the circuit court of Jackson county, in an action for damages for injuries sustained on the evening of August 18, 1908, when one of defendant’s cars collided with a wagon npon which plaintiff and twenty-six other yonng ladies were riding. The wagon was obtained from The Kansas City Carriage and Buggy Company and was being driven by an employee of that company to whom the only direction given was that he should drive to Swope Park. The wagon was proceeding southward along Troost avenue and was approaching Forty-sixth street when it was struck by the car. The negligence alleged is the violation of a speed ordinance, failure to sound warning and want of ordinary care after defendant discovered plaintiff’s peril.

Some six or eight blocks north of Forty-sixth street the car and trailer involved in the collision stopped that the crew might replace a fuse which had “blown out,” and there the wagon upon which the plaintiff and her companions were riding passed them. Thence the wagon proceeded southward along the car line on Troost aVenue, the wheels astride the west rail of the south bound track. The evidence tends to show this use of the track was necessitated by the presence in the avenue of debris due to street improvements then being made. The hour was about 9 p. m., the night was not more than usually dark for the hour and season, the car was equipped with a headlight and the street lights were burning at Forty-fifth and Forty-sixth and other cross streets. From the point where the car stopped, as stated, to the point of collision the track is straight and there is no physical obstruction of the view.

There is sharp conflict in the evidence as to the speed of the car. The ordinance fixed a limit of twenty miles per hour. There is evidence the car was running twenty-five or thirty miles an hour for several blocks before it struck the wagon and that its speed was unchecked until the collision occurred. There is also evidence, offered by defendant, that the car stopped at Forty-fifth street and after starting again attained a speed not exceeding fifteen miles per fionr which before tbe collision bad been reduced to a rate variously estimated from four to seven miles per bonr. There is also conflict in tbe evidence as to tbe distance tbe car ran after striking tbe wagon. Some of tbe evidence tends to show tbe stop .was made in a distance of seven to ten feet; one witness testified tbe stop was made almost instantaneously and other testimony is that the car ran fifty feet or more. Defendant’s motorman testified that after leaving Forty-fifth street lie saw the wagon three hundred feet away near Forty-sixth street. There was evidence the driver of the wagon looked back and saw the approaching car one hundred and fifty or two hundred feet away, drove off the track and then continued driving southwardly, gradually moving away from the west rail. The evidence conflicts on the question whether the wagon was “in the clear” as the car neared it. Plaintiff and her companions, constituting a church society, were indulging in what is called a hay ride and plaintiff was sitting near the center of the left hand or east side of the wagon, her feet hanging over the side. She says when she first observed the car’s approach the wagon platform, which protruded somewhat, was over the west rail, though the wheels were west of that rail; that the car was but a short distance away .and coming so rapidly that she had no time to do more than to attempt to raise her feet when the car struck the wagon and her foot was practically crushed off above the ankle.

The vestibule was several inches narrower than the body of the ear and the evidence shows the former passed the corner of the wagon without striking it, There is substantial evidence that it was the protruding rounded shoulder of the body of the car which struck the corner of the wagon platform. This platform was eighteen feet long, eight feet wide and three feet nine inches high.. It was between the edge of the side of this platform and the corner or side of the car plaintiff’s leg and foot were cang'ht and crushed.

I. It is contended that the petition seeks recovery upon allegations of negligence so inconsistent as to destroy each other and the pleading con-taming them. jNo such question was raised the trial court nor does counsel in this court advance any argument or cite any decision supporting this assignment. There is no necessary repugnancy between the allegations mentioned even if repugnancy could now have the effect claimed. Though the speed of the car exceeded the ordinance limit yet it might well be true the motorman discovered or ought to have discovered plaintiff’s peril in time to have avoided injuring her, in which even it would be the province of the jury to_ determine which act of negligence was the proximate cause of injury. Further, in principle the point has heretofore been adjudged adversely to defendant’s contention. [Sluder v. Transit Co., 189 Mo. l. c. 123, 136; Rapp v. Transit Co., 190 Mo. 150, 153.]

II. The sufficiency of the evidence is questioned. In this connection it is insisted (1) there is no evidence the car was running more than twenty miles an hour, (2) the excessive speed was not the proximate cause of injury, (3t) plaintiff was guilty of contributory negligence, (4) there is no evidence as to the time in which the car could have been stopped, and (5) the physical facts demonstrate the inapplicability of the humanitarian or last chance doctrine.

1. Several witnesses testified the car was running twenty-five to thirty-five miles per hour. Some of these were shown to be experienced in tim-mg moving rains, automobiles, boats and other moving vehicles and objects and the testimony of others was admitted without objection. One of these witnesses was upon the sidewalk between Forty-fifth and Forty-sixth streets; another was driving along Troost avenue in a buggy a block and a half north of the place of injury; another was a passenger on the trailer drawn by the car which struck the wagon. The testimony is entirely sufficient to support a finding that the speed of the car exceeded twenty miles an hour. In this respect this case is wholly unlike McCreery v. United Railways Co., 221 Mo. l. c. 26, et seq., upon which counsel seems chiefly to rely. In that case one witness, after saying' he did not notice the speed of the car, was directed to guess; another after guessing declared he didn’t notice the speed and the opinion of the third was a conclusion he drew from his own movements during the time the car moved a stated distance — a conclusion it would be for the jury to draw rather than the witness, but which the testimony of the witness did not warrant either witness or jury in drawing. The testimony in this case is markedly different. As said in the case cited (l. c. 28), “courts have never required a very high degree of experience to enable a witness to give his opinion upon the matter of the speed of a street car” and, measured by the usual standard (Muth v. Railroad, 87 Mo. App. l. c. 434) the testimony of the witnesses in this, case possessed sufficient probative fpree to warrant a finding of excessive speed- The conflict of evidence was for the jury to solve.

2. There was evidence the wagon was leaving the track, the team moving in a jog trot, and if so, it is clear the corner which was struck would in another moment have moved the three or four inches necessary to place it out of the zone of danger. In the circumstances if the jury found the speed excessive there is ample evidence to support a finding it was the proximate cause of the injury.

3. It is insisted contributory negligence bars recovery. This contention is grounded upon the assumption of the truth of the testimony tending to show the driver turned his horses sharply to the right as the car was passing and thereby threw the rear of the wagon to the left and against the car and the further assumption that the negligence of the driver is imputable to plaintiff. There is ample evidence tending to show the driver’s act in turning his horses had nothing to do with causing the injury and the fact the wagon undoubtedly struck at or near the front of the body of the car and the testimony that the driver did not turn his horses until the vestibule of the car was opposite the horses’ heads would seem to refute the contention that the rear corner of a wagon eighteen feet long could have come in contact with the car at any place there is evidence tending to show the car was struck.

There was other evidence that the collision did not result from the driver’s turning his horses and also expert testimony tending to show it could not have done so. In these circumstances it would have been error for the trial court to assume the driver’s act caused the collision. Nor is the assumption that the driver’s negligence, if any, is imputable to plaintiff permissible in view of the facts disclosed by this record. The instruction given on this branch of the case is a rescript of one approved by this court in Sluder v. Transit Co., 189 Mo. l. c. 138, et seq., and the court’s action in giving it in this case was fully justified by the evidence.

It was for the jury to say whether plaintiff in remaining seated upon the side of the wagon as it was driven along on or near defendant’s track was guilty of negligence contributing directly to her injury and no complaint is made this issue was improperly submitted. Plaintiff was not in control of the wagon. The street lights were burning and the wagon could be seen by the motorman three hundred feet away. The collision occurred very near a crossing at which cars were required to stop. Tlie driver was oil the lookout for the car and actually did see it some two hundred feet away. The gong which plaintiff had the right to expect to hear sounded was not rung. It cannot he said as a matter of law there was such contributory negligence in this respect on plaintiff’s part as to bar recovery. [Schafstette v. Railroad, 175 Mo. l. c. 154; Klockenbrink v. Railroad, 172 Mo. l. c. 687; McGauley v. Railroad, 179 Mo. l. c. 500, 591.]

4. It is argued the case should not have been submitted on the theory that defendant had the last clear chance to avert the collision since (it is gai¿n there was no evidence as to _ . . ;he distance m which the car could have been stopped. It is true no witness testified directly on the point but it is also true that the motorman testified that after the collision occurred he actually stopped the car within a distance he estimated to be from seven to ten feet. Another witness testified the car stopped almost immediately. There is no evidence the car ran as much as one-fifth as far after striking the wagon as the distance between the two when the motorman first saw the wagon after crossing Forty-fifth street.

It is not in every case absolutely necessary that experts be called to testify as to the distance within which the car could have been stopped. If there is evidence of any kind sufficient to support a finding that the car could have been stopped in time to avert injury after the danger was or ought to have been discovered, that will suffice, and facts like those in evidence in this case have been held to meet the requirements of this rule. [Wise v. Transit Co., 198 Mo. l. c. 557; Schmidt v. Transit Co., 140 Mo. App. l. c. 187; Richmond v. Railroad, 123 Mo. App. l. c. 498; Windle v. Railroad, 168 Mo. App. l. c. 604; Klockenbrink v. Railroad, 172 Mo. l. c. 687.] There is nothing in the cases which defendant’s com-sel cites in this connection militating in any degree against tlie conclusion we have reached.

It is nest insisted the physical facts preclude the application of tire humanitarian rule. In support of this contention counsel selects the testimony tending to show that the collision was the result of accident or of the negligence or poor judgment of the driver in turning his horses so as to bring the wagon into contact with the car as it was passing. These theories were submitted in instructions requested by defendant and the jury did not see fit to believe this testimony. There was other evidence to show the wagon was being driven along beside and parallel to the track and was so near that its corner was struck by the projecting shoulder of the body of the car. The physical facts tend to support the theory that the force of the collision threw the rear of the wagon away from the track and that the car next struck the side of the wagon platform at the point where plaintiff’s foot was hanging over it. It cannot be said the jury were required to believe that plaintiff’s foot would have been caught at all if the front of the wagon was two to six feet from the side of the car when the collision occurred, since if the rear left hand corner was in contact with the car and the front left hand corner was two feet from the side of the car it seems the center of the side of the wagon platform, at which point the evidence tends to show plaintiff was sitting, must have been a foot from the car and plaintiff would not have been injured at all. There is no dispute about her having her foot crushed off between the two vehicles.

III. To the assignment that the court instructed upon theories unsupported by evidence what has been in the preceding paragraph constitutes sufficient answer. That paragraph also disposes of the criticism of the instruction relat-mg to the imputability to plaintiff of the driver’s negligence, if any.

Defendant requested an instruction which the court amended and then gave, the amendment complained of being shown in italics:

“If the motorman %oas running the car not over twenty miles per hour and saw the wagon on the west side of Troost avenue, out of range of the approaching car, and in no danger of being struck thereby, then said motorman had the right to assume that the wagon would remain out. of range of the car, and out of danger of being struck thereby, and that said wagon would not be placed within the range of danger of a collision with the car; and he was not required to slacken the speed of the car until it became, or should, by exercise of ordinary care on Ms part, have become, apparent to him that there was danger of a collision; and if the motorman used ordinary care to prevent a collision with and injury to the plaintiff after the danger became or should have become apparent to him, then said motorman was not guilty of any negligence and the plaintiff cannot recover in this suit and the jury must return a verdict for defendant company.”

The criticism of the amendment made is based upon the idea that without regard to the .speed of the car defendant is blameless if the driver, in an effort to get farther from the track, turned his horses in such manner that the corner of the wagon swung eastward so that it came into contact with the car. Conceding the driver did so turn his horses yet it was the (corner of the wagon which collided with the car and the jury might well have found that if the car had not been exceeding the ordinance rate the wagon would have been drawn the three or four necessary inches before the body of the car reached the point of collision.' TMs instruction directs a verdict for defendant on certain facts and to have given it as requested would have elirüinated one theory of the evidence which plaintiff was entitled to have considered.. The jury was unequivocally instructed that if the driver caused the collision by pulling his team to the right after the vestibule of the car passed the rear of the wagon, then they must find for defendant without'regard to the speed of the car. It was also instructed to return a verdict for defendant if they found the collision was the result of accident or unavoidable casualty or any other reason save the negligence of the motorman. The court did not err in incorporating the amendment in question. Only one instruction offered by defendant’s counsel was refused and that was fully covered by those given.

IY. To lay a foundation for contradicting and thus impeaching him the motorman was cross-examined at great length as to statements he made on an occasion when an attempt was made to take his deposition. It is indisputable that he appeared, was sworn and an-, swered questions propounded and that one of the defendant’s experienced stenographers took short hand notes of the questions and answers. The witness examined the transcript made by this stenographer and made several corrections but did not sign, the stenographer testifying the witness did not refuse to do so but, for lack of time, left before he finished reading the transcript and did not thereafter return. The stenographer also testified he took the notes at the time and transcribed them the best he could and that the transcript offered was the one he made from his notes. The. transcript was. then admitted in evidence for the purpose of impeachment and this ruling is assigned as error.

The argument is that the transcript was inadmissible because tbe witness did not sign it. It was not a deposition and was not offered as such. "Without the signature of the witness or some other evidence that the statements the paper contained were made by the witness, the ruling would have been erroneous (Owens v. Railroad, 95 Mo. l. c. 183) but any statement, oral or written, relating to a material matter may, after a proper foundation is laid, be admitted for impeachment purposes. The signature of the witness would have rendered unnecessary any further proof that he gave the answers appearing in the transcript, but if their authenticity be otherwise shown such signature is not absolutely essential. It is one, but not the only, method of authenticating the statements attributed to him. A letter may be used to contradict a witness and might be shown to be that of the witness by proof of the handwriting if no signature was' affixed. It is clear that the signature of the witness is not always necessary to render a writing admissible to contradict him. In this State the rule has long been that a transcript of the testimony of a witness, after being identified, by the stenographer who made it, is admissible on a retrial to contradict him. [State v. Jefferson, 77 Mo. l. c. 138; State v. Rose, 92 Mo. l. c. 207; State v. Gatlin, 170 Mo. l. c. 371.] To the facts stated must be added another all important one, and that is that the witness declared on the trial that the answers set out in the transcript as corrected by him were, to the best of his knowledge, those he gave in answer to the questions propounded when the attempt to take his deposition was made. The court ruled the answers must be read as corrected. It is true the witness in the course of his subsequent testimony denied that “the deposition now as it stands” was his testimony, but it was not for the court to say plaintiff was bound by this retraction. In the circumstances there was no error in admitting the transcript.

V. Certain remarks of the trial jnclge during the course of the cross-examination of the driver of the wagon are assigned as error.

The witness was being examined by defendant’s counsel upon the effect upon the rear of the wagon platform when the team drawing .the wagon was, as he had testified, driven sharply to the right and the front end of the wagon thus turned quickly from its course. He did not claim to have seen the effect thus turning his team had on •the rear of the wagon on the particular occasion in question and, consequently, the court restricted his testimony to his opinion based upon his previous observation of the movements of the rear of the wagon under like circumstances. The court remarked that the witness must not testify “by conjecture or conclusion” and also remarked that “the witness saysi he knows but the court rules he does not know.” To these remarks exceptions were saved. The witness subsequently made it clear he did not know in the sense that he saw the rear of the wagon move on that occasion and the rulings and remarks could not have harmed defendant. The court was right in refusing to permit the witness to state as a fact a thing of which his testimony left no doubt he knew nothing except as he reasoned about it in the light of previous experience. It was entirely proper to require the witness to give his opinion as an opinion. The jury might otherwise have been misled.

After the exception referred to. had been saved counsel added: “We save our exceptions to the remark of the court ruling that he doesn’t know as violently invading the province of this jury, and ask the court to withdraw the remarks from the jury here and now and instruct them that they must not be influenced by the remark.” Thereupon the court took the witness and made it clear he did not see and thereby 'know as a fact how the rear of the wagon moved at the time and then the court remarked: “Now, the ruling of the court was correct and counsel is rebuked for making a prejudicial objection in'front of the jury.” To this counsel saved an exception. The court again said, doubtless to make clear the ground of the ruling, that “this witness was endeavoring to give an answer to something he shows by his testimony he doesn’t know.” To this exception was saved and the witness began an explanation when defendant’s counsel interrupted him and again announced he saved an ■ exception in the record. The court rejoined: “You have your exception in the record. I won’t have any defiance of the rulings of the court. Go ahead.”

It is earnestly insisted defendant was prejudiced by this interchange. The first indication of heat or resentment, if any there was, appears in the objection that the court had “violently invaded the province of this jury,” etc., and there is nulling to show that the gentle rebuke administered therefor was unjustified nor have we before us the manner and tone of counsel when he twice took an exception to the same ruling and was thereupon admonished by the' court. Trial courts must be allowed wide latitude in conducting trials and in dealing with counsel who appear before them and must be left free to maintain the dignity of the tribunal over which they preside.

It may be counsel who now represents defendant takes the remarks of the court more seriously than did counsel who tried the case below. The record shows that the latter and the court during the rest of the trial treated each other with great courtesy and respect. There is no reversible error disclosed by this assignment. [State v. Teeter, 239 Mo. I. c. 483.]

VT. Finally, it is contended the verdict is excessive. The physical injuries for which the petition prays damages are the loss of the left foot and lower part of the left leg, nervous shock and the pain and suffering incident to those. To this is subjoined the usual allegation as Lo mental anguish and suffering.

The injuries’ sustained necessitated the amputation of plaintiff’s left leg at a point seven and one-half inches below the knee. The physician, who attended her testified that the end of the limb had nearly but not quite healed in April after the amputation in August. Plaintiff testified she suffered from the injury at the time it was inflicted, was in the hospital four weeks, that the limb still pained her at times, in fact every time she attempted to walk, that she had been unable to go about unaccompanied and suffered mentally and was humiliated by her increased dependence.

There is no direct evidence of plaintiff’s age but the evidence tends to show she was a young, unmarried woman and the failure to prove her exact age is now unimportant since she was before the jury and doubtless its members were able to approximate her age closely in considering it in connection with fixing the amount of damages. In view of reasons, given in previous decisions of this court (Brady v. Railroad, 206 Mo. l. c. 518, 540; Newcomb v. Railroad, 182 Mo. l. c. 727, 728) in cases of this kind it must be held the judgment is excessive and can be sustained only to the extent of $10,000. If the plaintiff will within ten days remit $5000 as of the date of the verdict the judgment will be affirmed, otherwise it will stand reversed and the cause remanded.

Brown, O., concurs.

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

All the judges concur.


author: LAMM, C. J.

text:
    SALLIE E. DONALDSON, Appellant, v. MACE DONALDSON et al.
    In Banc,
    April 8, 1913.
    1. BILL OF EXCEPTIONS: No Motion for New Trial: Amendment: Accepted in Division. Where, notwithstandihg the abstract as originally filed showed no motion for a new trial or a call for one as a part of the bill of exceptions, appellant tendered an amended abstract showing such motion as a part of the bill, while the case was pending in division, and the judges of that division took cognizance of the amended abstract, and both appellant and respondent filed amended briefs after the case was transferred to Court In Banc, the court will ex gratia pass over the technicality of an imperfect abstract.
    2. MARRIAGE CONTRACT: Fraud: Cancellation: Divorce as Bar. A decree of divorce obtained by the husband, after a marriage contract by which certain money was to be given to the wife in lieu of dower and homestead, alleged to be the product of fraud, and after he had deeded the land to certain sons in pursuance to that contract, it being alleged that the conveyance was a part of the fraudulent scheme, presents an insuperable barrier in the way of any right she may once have had to have such contract annulled for fraud and to have the conveyance set aside. The decree of divorce, ipso facto, forfeited her dower, homestead' and all her other marital rights; and along with them, went her incidental right to complain of fraud practiced upon her in the procurance of the contract and deed by which her prospective dower and homestead in his estate were surrendered and disposed of.
    3. DIVORCE: Subsequent Rights of Wife. Our statutes recognize but one form of divorce and that one a vinctilo — an absolute severance of the bonds of matrimony; and by virtue of an express statute a divorce in favor of the husband for the wife’s fault cuts off the marital rights of the wife, ipso facto, fully, instantly and forever as to the marriage dissolved.
    4. -: -:-: -: Inn.ocent Party. The wife will not be heard to contend that she had a meritorious defense in 'the divorce case. The time to have made that defense was in that case, and the decree, so long as it stands, forever puts an end to that contention. It became res adju&icata; that is, a complete bar to future action.
    5. -: Remarriage: Fraud During First Marriage. Nor does the fact that she and her husband, after the divorce, married again, help her in attacking, as fraudulent, the contract made prior to the' first marriage, whereby, for a monetary consideration, she agreed to and afterwards did release her claim to dower and homestead. The divorce decree obtained by the husband put an end to her right to dower or homestead under the first marriage.
    6. -: Fraudulent Contract in Lieu pf Dower: Incident to Marital Relation. The wife’s right to complain of frauds practiced upon her by her husband in obtaining from her a contract whereby she surrendered her homestead and dower,- and in pursuance to which she executed a deed conveying his lands, was but an incident to the then marital relation, and when that principal thing was afterwards destroyed by a decree of divorce, obtained by him, for her fault, the incident went with the principal. The maxim is: The incidents of a thing follow tacitly.
    7. DOWER: Deed During Marriage: Divorce: Subsequent Remarriage. If during the first marriage the wife joined her husband in a voluntary deed to his sons, reserving to himself a life • estate, and that deed was delivered, and thereafter he obtained a divorce for her fault, her subsequent marriage to him a second time did not invest her with dower in the lands so conveyed, for he had only a life estate and was not “seized of an estate of inheritance, at any time during the marriage”— an essential element in the widow’s dower; and the divorce having been obtained by him for her fault, it maters not that the deed was a result of fraud practiced on her by him. .
    8. ANTENUPTIAL CONTRACT: Fiduciary Relation: Burden. The relation of a man tó a- woman he is about to marry is a confidential one in an exacting and stringent sense; and lie carries the burden of showing that any amie-nuptial contract entered into between them by which she surrendered her dower, ■ homestead or other marital right, made under the glow and trust of that relation, was made fairly and understandingly, upon full disclosures, and is just and adequate. That rule in this case is applied to a contract entered into by a woman and her husband upon the eve of a second marriage after they had been previously divorced.
    Appeal from Clay Circuit Court. — Row. Francis H. Trimble, Judge.
    AFFIRMED.

      T. A. Frank Jones, Joseph 8. Bust and D. G. Allen for appellant.
    (1) The marriage contracts were both, void for inadequacy of consideration, and because on their faces they only provided for her during his life. For the latter reason they were void as against public policy. Moran v. Stewart, 173 Mo. 207; Mowser v. Mowser, 87 Mo. 437. (2) In view of the relationship of the parties, the undue influence, want of adequate consideration, and the circumstances surrounding the pretended execution and delivery of the deed, want of advice or counsel on the part of the wife, the fact that a will had been the intention, the fact that the deed was not recorded until after the death of the grantor, and that until then it remained either in the possession of plaintiff or his attorneys, for about six years, the admission of the grantor’s lawyers, now respondents’ lawyers, and other like circumstances, together with the positive evidence of appellant, a court of equity will presume fraud and cast the burden upon these respondents. State ex rol. v. Merritt, 70 Mo. 276; Bump on Fraudulent Conveyances, secs. 31-61; Kerr on Fraud and Mistake, 143; Caldwallader v. West, 48 Mo. 483; 20 Cyc. ,450; Miller v. Sullivan, 11 Mo. App. 425; Gtarvin v. Williams, 44 Mo. 473. (3) Respondents having been cognizant of all which took place cannot now profit by their own wrong. (4) The fraudulent purpose being established and presumed because of the circumstances, the fraud is presumed to attach to everything which was done and which was necessary to the consummation of thp fraud, even to the divorce; and respondents cannot plead or use that 'divorce as a means of effecting the fraud. Caldwal-lader v. "West, supra. (5) .The rule that fraud vitiates everything cannot be so modified as to read “fraud vitiates everything unless it is perpetrated through the instrumentality of a divorce.” If a court of equity will not allow a positive statute to be used in the perpetration of a fraud, will it allow a divorce, at best a necessary evil, to do so? (6) Such transactions as the one disclosed by.the case at bar are by a court of equity presumed to be fraudulent and void and the fraudulent purpose being established a court of equity will not allow it to be consummated by any means whatever. Caldwallader v. West, 48 Mo. 493, and cases above cited. (7) Fra-us est celare fraudem. ’Tis fraud to conceal a fraud. Without reference to the actual fraud in the execution of the deed in controversy, the keeping of it from record for six and one-third years, and the concealment of its tenor and effect, were a palpable fraud on appellant.. This necés-sarily influenced.her action on receipt of decedent’s letter to her on May 23, 1902. Concealment of fraud is particularly odious in law in marriage negotiations or settlements where the interests of a spouse are in any way affected. Peyton v. Bladwell, 1 Vernon, 240; Cale v. Lindo, 1 Vernon, 475; Turt'on v. ,Benson, 1 Peere-Williams, 496; Randall v. Willis, 5 Vesey, Jr., 262; Pomeroy’s Equity (2 Ed.), sec. 931; Broom’s Legal Maxims (3 Ed.), p. 16. And what is true of the deed in controversy is true of the deed of July 25, 1898. The respondents failed to show in evidence that the deed in controversy was so explained to appellant that she thoroughly knew and understood that she was, •in signing the deed in controversy, forever releasing her dower and homestead in the land and all claims on decedent’s personalty. If there is any donbt of this, she is entitled to the full benefit. (8) Even if there were no intentional fraud on appellant in the marriage contracts or the deed in controversy, yet, in law, the three instruments were against the policy of law and were frauds in law upon her. The reason is plain: They were contracts on settlements in the nature of jointures. At the time of both marriages, decedent was a wealthy man — quite wealthy. From all of the. authorities, the provision for the wife must be adequate —something in proportion to his wealth. 2 Scribner on Dower (2 Ed.), p. 389; Mowser v. Mowser, 87 Mo. 437; Farris v. Coleman, 103 Mo. 352; Moran v. Stewart, 173 Mo. 207; King v. King, 99 Mo. 106; Logan v. Phillips, 18 Mo. 22; Sec. 2950, E. S. 1899. The provision under the first marriage contract was $500, under the second $100, and under the deed in controversy, nothing! Can it be possible that such a result is legal? Surely not. It is in the very teeth of section 2950. (9) The respondents rely much on the effect of the decree in the divorce suit. Was not remarriage, on decedent’s own motion, a complete resumption of original conditions? Was not decedent, and are not his heirs, ¿stopped from taking the benefit of the concealment and fraud of the two deeds — of July 25, 1898, and May 15, 1900? Two of the great maxims of the law are Nullus commodum cap ere potest de injuria sua propria and Nemo ex proprio dolo consegmtur actio-nem. No .man shall take advantage of his own wrong. No man shall prosecute an action arising from his own fraud. The same maxims apply, of course, to defenses. Broom’s Legal Maxims (3 Ed. Am.), pp. 209, 221; Moran v. Stewart, .173 Mo. 207.

      William J. Courtney and Sandusky & Sandusky for respondents.
    (1) In'a voluntary deed, from a parent to a child there is no presumption of fraud, Doherty v. Noble, 138 Mo. 25; Bruner v. Bruner, 115 Ill. 40. (2) The testimony of a married woman is not, alone, sufficient to overcome her signature and the official certificate of acknowledgment. Biggers v. House Bldg. Co., 9 Mo. App. 210; Barrett v. Davis, 104 Mo. 555; Mays v. Pryce, 95 Mo. 603; Eng. &• Thresher Co. v. Donovan, 147 Mo. 633. (3) The divorce granted to Robert H. Donaldson on November 12, 1901, cut out all marital rights of appellant in his property. R. S. 1909, sec. 2378. When they remarried on May 28, 1902, her marital rights then accrued as to all property then owned by Robert H. Donaldson; at that date he owned only a life estate in the lands in controversy, which fact appellant then well knew, and the decree so finds. (4) If fraud in fact were established in the execution of the deed dated May 15, 1900, the deed was, nevertheless, binding on Robert H. Donaldson and his heirs in favor of Walter and Mac,e. Ober v. Howard, 11 Mo. 425; Stevenson v. Edwards, 98 Mo. 622; Whithed v. Mallory,.4 Cush. 138. A.nd when the decree for divorce cut out appellant there was no one left to question the validity of the deed. Cross v. Lange, 70 Mo. 45.
   LAMM, C. J.

Plaintiff, now the wiáow of, twice married to and once divorced from, Robert IT. Don-, aldson, sued in two counts — one in equity, one at law. Defendants are the children of said Robert by a former marriage. Pull of years, to-wit, three score and seyen, he died testate in Clay county in September, 1906, but his will disposed of personalty, hence its terms, undisclosed, seem immaterial.

The object of the first count was to set aside two marriage .contracts between her and Robert, because of■ inadequacy of provision and fraud, and to avoid a certain conveyance of all his real estate made, during the term of his first marriage to plaintiff, by Robert to his two younger sons, Mace and Walter, for fraud, as standing in the way of her marital rights as widow, and for nondelivery. The second count was for the admeasurement and assignment of dower in the land so conveyed to Mace and Walter and to set off her homestead therein, proceeding on the theory that Robert died seized of the land.

From a decree annulling the second marriage contract for inadequacy of provision for the wife, but refusing to set aside the conveyance and passing by the first marriage contract sub silentio, plaintiff appeals. Defendants abided the decree.

The first count is an elaborate bill in forty-one paragraphs. It sufficiency as a pleading is not questioned, hence its reproduction is useless. As plaintiff’s own testimony and that of her witnesses tended to sustain some of its allegations, an outline of its charges may aid in understanding the controversy. Summarized it charges that on August 31, 1899,' Robert was the owner of a considerable estate; was sixty-nine years of age and contemplated a marriage with plaintiff, then fifty-nine years old; that he made a marriage contract with'her (verbal we infer) whereby in addition to plaintiff’s proper support during her life a promise was made of $3000 in cash to be. paid her at his death and, in that event, to secure to her the use of the mansion house on his farm with one-third of his real estate during her life, she to be taken care of by Mace, one of his sons; that in the October following, in pursuance of this agreement to marry made on the terms stated, they were married; that through the fraudulent contrivance of said Robert to defeat her marital rights (in which he was aided, abetted and influenced by his two sons, Mace and Walter, and his nephew John T. Donaldson) she was induced to sign and acknowledge a fraudulent marriage contract grossly inadequate in provision, she being at the time without business experience and without counsel and said Robert being at the time in a confidential and fiduciary relation to her by virtue of their marriage engagement and implicitly trusted by her. Said contract bound her to.receive at his death $500 in lieu of all support, maintenance and property rights as his widow, including dower and homestead; that she did not read over the contract, but was falsely assured it contained the provisions heretofore stated for $3000, her widow’s third and residence in the family mansion,' etc. That the influence of said sons and nephew on Eobert was accentuated and made easy by the fact that he was, and had long been, a hard drinker and his will power was thereby impaired and made subservient to the wills of said sons and nephew; that after the marriage in furtherance of the scheme to defraud her out of her marital rights, she, when without counsel, was fraudulently persuaded to sign and acknowledge a deed in May, 1900, for a consideration of one dollar, whereby Eobert (reserving to himself a life estate) conveyed to his said two sons, Mace and "Walter,'all his real estate. It is averred that said deed was never delivered; that it was procured under circumstances of fraud and surprise (set forth at great length in the bill) and signed and acknowledged by her without knowing of its true contents, purport or effect; that it was read over to her as if it contained the $3000 provision and that relating to her widow’s third heretofore referred to. It is next alleged that after living with him from October, 1899, to August, 1900, she separated from him because of “revolting surroundings;” that in September, 1901, Eobert sued her for a divorce; that she appeared to the action and filed an answer and (though she had a meritorious defense) through the advice of her attorneys she made no serious contest; that she was allowed $100 alimony 'pendente lite and that on December 12, 1901, a decree of divorce was rendered in his favor and against her. That on May 28, 1902, a remarriage between her and Eobert was in contemplation; that at that time in cod-sideration of the second marriage he promised her the same provision promised in consideration of the first; that on the strength of that promise they were married the second time; that at that time, under the same circumstances as in the first, she was defrauded into signing another marriage contract allowing her $100 in lieu of all support and property rights in case she became his widow, and thereafter she lived with Robert as his lawful wife until his death.

(Note: The testimony does not sustain this last allegation. Contra, having deserted her husband in the first marriage venture in eight months or so, she deserted him in the second two years before his death.)

The second count is of no significance until the merits on the first count are disposed of; for if she is entitled to a full decree on the first count her right to dower and homestead goes as of course on the second. If not, the second is in the air.

The answer admits the two marriages, the inter- . mediate divorce, the two written marriage contracts and specifically denies the charges of fraud, collusion, undue influence or the impairment of will power in Robert II. Donaldson at the times in hand. It stresses the divorce .of Robert from plaintiff as a bar to the relief ashed on the first marriage contract and deed, and affirmatively makes allegations contrary to the specifications of wrongdoing in the bill.

The reply reiterates the charges in the petition and denies the affirmative matter in the answer.

It -should be said there were four amended petitions filed. We are told that to the first, three of the defendants, William, James L. and Emma, answered, admitting its allegations — what those allegations were we are not told. After that answer, those three stood mute on the pleadings, making no answer to the fourth amended petition. The trial answer was a joint one by defendants, Mace, -Walter, Charles and Jefferson. Defendant Thomas E. filed no answer at any time.

So much for the pleadings.

The testimony took a wide range on both sides. As we read the record, at no time was plaintiff’s competency as a witness sufficiently challenged to raise such question on appeal, as respondent does. That view of the matter is put to one side. Her own testimony tended to sustain the original verbal promise alleged to have been made by Robert H. Donaldson relating to the provision she was to have in consideration of her first marriage. She testified to her confidence and trust in him and to her acting without counsel. In the state of the proof before us the cause must proceed as if her testimony in that behalf was true. She also testified to her not reading the first marriage contract or any of the other instruments assailed and that each of them was read to her as if the alleged original verbal promise of $3000 and her widow’s third in case of her surviving her husband, was actually in each instrument, and that she acted on false assurances in that regard. In relation to false assurances of the contents of the contracts and deed and a misreading of them, or any of them, to her when she signed and acknowledged them, her' testimony is not only uncorroborated, but it is overwhelmed by the facts and testimony to the contrary. No chancellor could base a decree on her testimony on that phase of the case. That John T. Donaldson 'was the trusted adviser of the old gentleman seems to be established, but there is no testimony worth while or circumstances showing that he advised or influenced him to take the course he did in making the contracts or conveyance so as to deal harshly with plaintiff. ' That Robert H. Donaldson for a long time drank too heavily for his own or his sons’ good, and this during the lifetime of his first wife, as well as during both his marriage ventures with plaintiff, is abundantly shown, but it is not satisfactorily shown that the use of liquor lowered his will power. To the contrary it appears that (in or out of liquor) he was dogmatic, stubborn, heady and pragmatical to a degree. On this behalf we take the credible testimony pertinent to the concrete case as we find it, eschewing* the generalizations and theorizing of the witnesses. To theorize on the effect of the use of whisky on the will power of men generally, depends too much on the extent of the use, the individual man (and, it may be, the quality of the liquor) to be of value in deciding this case. The case cannot be permitted to break on a philosophical view of some moot point in physiology or psychology. Peradventure drinking makes some men surly, ugly, unaccommodating and obstinate ; some mellow, merry and yielding; some vivacious and witty; some stupid and sodden; and, since the days of Noah to this very day, all men the worse off in the long run. [Proverbs, xxiii: 29-32, q. v.] We leave this phase of the case by pointing out plaintiff’s proneness to give highly colored and incredible testimony on drinking as in some other particulars. Thus, she puts herself in the attitude of marrying Mr. Donaldson the second time on the credit of a remark or “promise” he made to her about whisky drinking. What was it? A promise to leave off drinking? No. Attend to it:

“Q. Before the second marriage, what promise did he make with regard to how he would conduct himself, respecting ^whisky? A. He told me he was a strict member of the Presbyterian church, and never drank a drop of whisht/ in Ms life.
“Q. Under those conditions you married again and signed the second contract? A. Yes, sir.”

Nor is there testimony that would persuade a chancellor that the deed or either of the contracts was the product of the influence of the younger sons, Mace and Walter. Whatever was done was as he wished it done and done on legal advice.

Defendants introduced testimony, much of it un-contradicted, tending to show that more than a year before marriage was contemplated between plaintiff and Mr. Donaldson the first time, and without any regard to a marriage, the latter (then an old man) had formed a plan for the settlement of his affairs. He had made advancements to his other children. His two younger sons had remained with him until middle life, unmarried and working- for him, and sitting as a chancellor in the equities of his family affairs and the merits of his children, he had then determined to give his two younger sons his home farm (the land in question), reserving a life estate in himself, and give his other children no more of his estate. To that end at that time, unknown to any of them, so far as this record discloses, he signed and acknowledged a deed to all his land conveying it to his said two sons and deposited it with a bank to be delivered to them at his death. That deed was never delivered to the grantees, but was produced at the trial. If it had been placed by him beyond his dominion and control when delivered to the bank, our case might have fallen within the doctrine of Williams v. Latham, 113 Mo. l. c. 174, and Cook v. Newby, 213 Mo. l. c. 489, et seq., and the delivery might have been held sufficient and the conveyance operative to vest title, reserving a life estate in the grantor. This, of course, on the theory it was not made in contemplation of his approaching marriage. But such is not our ease, which hinges on another deed. There was other testimony on the one hand tending to impeach, and on the other tending to show, the good faith of grantor in the deed assailed, a second one, made a few months after his first marriage with plaintiff, and much tending to show the information and understanding of plaintiff in regard to it, and her acquiescing fully in carrying out the known and long settled policy of her husband in conveying the land to the two younger sons, this despite her own testimony to the contrary. But for reasons presently appearing it is not necessary to determine the efficacy of this testimony pro or con.

Any other facts essential to an understanding of the transactions in review, and to a just disposition of this appeal, will appear further on in the course of the opinion.

Stated in our own way the questions here are these:

(1) Is there a fatal infirmity in the abstract of the bill of exceptions precluding an investigation and determination of the merits?

(2) Assuming for the present the deed challenged was delivered, does the divorce in 1901, after the deed and first marriage contract ‘were made, in which divorce Robert was the injured and innocent party, present an insuperable barrier in the wajr of any right she may have once had to set aside the conveyance made during that marriage for fraud, if any, practiced upon her marital rights? Or the first marriage contract for fraud or inadequacy of provision?

(3) Was there such delivery of that deed as made it operative as a conveyance?

It is apparent that if the second question be answered against plaintiff, then, a sifting and weighing, of the testimony relating to fraud upon her in the procurement of the deed is unnecessary. It is also apparent that if that question be answered against her, a determination one way or the other of the invalidity of her first marriage contract is not necessary. It is also apparent that if the deed was never delivered, then the decree avoiding the second marriage contract opened the door wide to the assignment of dower and setting off a homestead regardless of fraud. Hence in that view of it fraud is immaterial, and the decree denying her dower and homestead was wrong. It is. also apparent that if the deed was delivered and the divorce precludes her questioning it on the score of working fraud upon her at that time, then all the chan-celloi; -could do in granting relief lie did by cancelling the'second marriage contract.

Of the foregoing questions in tlieir order.

I. Of the defect in ■the abstract'.

Appellant files an abstract on its face purporting to be a full copy of the bill of exceptions from caption to signature of judge. In that bill there is no motion for a new trial, no call for one and no exception to overruling one. Elsewhere in the abstract such motion appears, the order overruling it appears and in connection with that order (-apparently in the wrong-place, viz., a record entry) appears an exception. If the bill had called for the motion, then, if it had appeared elsewhere, we would be ponfrontecl with the proposition that a motion to be read only once by us need not be printed twice. In such condition the proviso to section 2083 (R. S. 1909) might have cured the defect of the absence of the motion in the bill, but absent a call in the bill- for the motion that proviso is not applicable. Having then a case in which the bill as originally abstracted has neither a call for the motion, nor the motion itself nor an exception to overruling it, if we applied the doctrine of a line of cases, that pretermission would be such a fatal infirmity that the merits would not be here for review, and nothing but the record proper would be before us. But in this case appellant tendered an amended abstract while the case was in Division Two, showing that, as part of the original bill of exceptions, the motion for new trial as well as the exception to overruling it appeared therein. Our brethren of that Division took cognizance of the abstract as thus amended and both respondent and appellant filed additional briefs since the case was transferred to Banc. Since those briefs, as well as former ones, are on the merits, and since respondent does not question the verity of the amended abstract, we are disinclined In Banc (not ex debito but ex gratia) to let the case break on the technicality that the original abstract was imperfect where, as here, the truth has been brought up by a timely amendment and has received the attention of one Division of this court in a case holding in judgment a question of dower and homestead to a widow. Such course is not without precedent.

Accordingly respondent’s point in that behalf is disallowed.

II. Of the divorce.

The case turns in vital features on the determination of the effect on plaintiff’s marital rights of the decree of divorce obtained by Robert H. Donaldson. Attending to the second question, we are of opinion it must be answered against plaintiff. This, because:

(a) Our statute recognizes but one form of divorce and that one a vinculo — one “from the bonds of matrimony,” that is, an absolute one. [R. S. 1909, sec. 2370.] "Whatever the common law may be as to-the rights of a wife in a mere divorce from bed-and-board or whatever the statutes may be in some States, in this jurisdiction by virtue of express statute a divorce by a husband for the wife’s fault cuts off the marital rights of the wife, ipso facto, fully, instantly and forever as to the marriage dissolved. “In all cases of divorce from the bonds of matrimony, the guilty party shall forfeit all rights and claims under and by virtue of the marriage.” [R. S. 1909, sec. 2378.] “If any woman be divorced from her husband, for the fault or misconduct of said husband, she shall not thereby lose her dower; but if the husband be divorced from the wife, for her fault or misconduct she shall not be endowed.” [R. S. 1909, sec. 359.]

Whatever the powerful and elastic function of equity, we are not at liberty to add a jot to or abate a tittle from the plain intent of those two statutes -by construction to meet a supposed hard case. Ita lex scripta est. Where the meaning of the. lawmaker, as evidence by his words, is plain, there is no room for judicial construction. Now, the meaning of those two statutes is obvious, they stand on their own reason and must be enforced as written. That the quoted statutes do not apply where property is settled on the wife as a jointure, except in cases of adultery (Saunders v. Saunders, 144 Mo. 482; Leavy v. Cook, 171 Mo. 292), does not help plaintiff, for there is no jointure liere and no vested estate.

(b) It will not do to hoot away the legal effect of that divorce or impair it by innuendo. As the writer said in another case, it will not do to think as a court behind the judgment when we may not go behind it. [Walther v. Null, 233 Mo. l. c. 112.] Vehemence may possibly fill a modest office in briefs in this court, as elsewhere in life, when kept within strait bounds. For instance in that part of the Apocrypha known as the History of Bel and the Dragon (q. v.), we are told the Angel took Habakkuk by his crown and bore him to Daniel by the hair of his head through the “vehemency of his spirit,” whereby Daniel got a dinner on a notable occasion familiar to the Bar. But the vehemency of learned counsel in characterizing the divorce in question as a fraud must go for naught. For all purposes of the law that decree settled for all time the merits of that divorce suit. Thereby it was determined that this plaintiff deserted her then spouse without cause for the statutory time; that he was the injured and innocent party, that plaintiff was the guilty party in breaching the bonds of matrimony and that those bonds were dissolved once for all. That decree is res judi-cata. Res judicata rigidly applied (as it must be) and in full vigor, as here, has a prodigious potency in jurisprudence. It makes of white, black; of black, white; of the crooked, straight; of the straight, crooked.

“For it is a maxim that res judicata, or the decision of a legal or equitable issue by a competent jurisdiction, is a complete bar to any future action; res judicata facit ex albo nigrum, ex nigro album, ex curvo rectum, ex recto curvum.” [1 Bouv. Inst., sec. 840.] Res judicata is estoppel by record. It is as a plea, a bar, or as evidence conclusive between the same parties. [Womach v. St. Joseph, 201 Mo. l. c. 480.]

It is vain, then, for learned counsel to argue that she had a meritorious defense to that action; that she left him because of his (and not her) fault; that the divorce is but an “incident” in a linked and drawn out scheme of fraud on the (part of Robert IF Donaldson and is to be treated as a part of a fraud heading to a defeat of her marital rights instead of the deliberate act of a court of justice on due process, i. e., on notice and a full hearing, whose judgment imports verity and against which nothing can avail while it stands.

It must be held, then, that when the divorce went against her, by that token her right to support as.a wife during the marriage as well as all right to dower or any other provision in the event she became .his widow ceased. As to Robert II. Donaldson, by that' event, she became as a stranger, no more, no less. True he and she could become reconciled and remarry. That is as you like it. But when they did so it was precisely the same in the eye of the law as if they had never been married to each other before. It will not do in some mystic way to link the second marriage with the first so as to carry over her rights under the first to the second. The dead coal of her lost marital rights could not be set ablaze by any new flame of love, as a matter of law. As to her, old things had passed away and all things had become new. We know of no principle of law permitting that to be done, and industrious counsel have cited us to no case deciding it may be' done.

(c) It follows from tlie ruling in paragraphs a and b as an irresistible conclusion, I tliink, that if plaintiff lost her marriage rights by the divorce, she also lost her incidental right to complain of fraud practiced upon her in the first marriage contract or of fraud practiced upon her in the deed executed during her first marriage, none of which frauds, if any, injured her except as they touched those same martial rights. Her light to complain of those frauds was but an incident to the then existing marriage relation and when that principal thing was destroyed by the divorce”, on her adjudged fault, the incidents went with the principal. The maxim is: The incidents of a thing follow tacitly. The rule is fraud must conjoin with injury to be actionable.

• If there was any evidence tending to show that the deed made during the existence of the first marriage was made in view of not only a contemplated divorce -but in contemplation of a reconciliation and remarriage (an unthinkable hypothesis, and one wholly unsupported by an iota of proof) the case might be brought within the purview of those principles of law which avoid conveyances made by the husband in contemplation of marriage in fraud of the marital rights of the wife. For the doctrine of the law is that a wife can complain of such frauds (done in contemplation of marriage or during its existence) and stands on the foot of a creditor in that regard. [Davis v. Davis, 5 Mo. 183; Stone v. Stone, 18 Mo. 389; Hach v. Eollins, 158 Mo. 182; Newton v. Newton, 162 Mo. 173; Eice v. Waddill, 168 Mo. 99.]

The noble maxims of the law are: Dower is favored as the reward of chastity; in doubt the response is in favor of dower; the law favoreth life, liberty, dower. Accordingly courts are astute and vigilant in preserving dower. [Chrisman Linderman, 202 Mo. l. c. 614, et seq.; Blevins v. Smith, 104 Mo. l. c. 588, et seq.] Agreeable thereto all the eases ran. Bnt in this case we are ashed to do the impossible thing’ of ignoring a divorce suit which destroyed her dower, and carrying over her rights under the first marriage to her second marriage when there is an impassable gulf fixed between the two. Such a ruling would not only breed confusion and chaos in the law, spoil its symmetry, draw within the hazard of its novel doctrine other cases, but we' think it could not be sustained on principle. If the deed was delivered so as to be operative as a conveyance as between the parties to it, then on the remarriage it must be held that plaintiff married a man who at that time held a life estate only in the land and was not “seized of an estate of inheritance, at any time during the marriage” — an essential element in the endowment of a widow. [R. S. 1909, sec. 345.]

III. Of the delivery of the deed in question.

The life of a deed is its delivery. Without delivery a deed is a mere dead scroll and has no life in it operative to vest an estate. Delivery hinges on intent and is usually a mixed question of law and fact. [Chambers v. Chambers, 227 Mo. l. c. 282.]

Assuming for the purposes of the point, as has been just held, that the divorce decree cut off the right of plaintiff to complain of frauds upon her marital rights existing during and by virtue of her first marriage, then the question remains: Was the deed actually delivered for the purposes- of a conveyance1?

It would be an ostentatious display of industry to set forth in detail the record facts and evidence showing delivery. We proceed to judgment with these observations: If any credence can be put in human testimony there was a delivery of that deed. There can be no two ways about that. The transaction was not hid in a corner. The facts are not equivocal, springing doubt. There were many eyes to' see what was done and ears to hear what was said and some of them admittedly friendly to plaintiff. Mark, the known infirmity of the first deed was the very fact of non-delivery. Is it snpposable the second (made to take the place of the first) was also not delivered when there was nothing nigh to hinder ? Attorneys learned in the law (and recius in curia) presided • over its delivery.

We pause to notice that counsel for appellant assume to refer to one of Mr. Donaldson’s counsel as “a prestidigitator,” etc. In taking that course counsel overlook the rod danger signal in the dictum of G-aet, J., .in that behalf, viz.: Ill nature and vituperation in a brief excite suspicion that its maker is on the wrong side of the case. [Touhy v. Daly, 27 Ill. App. l. c. 460.] That dictum is not without standing-ground in reason; for is not the cynical advice of General T. to an inquiring young brother often followed (more’s the pity), viz.: “When the law and the facts are both against you, there are only two courses left open — yell like an Indian, or abuse the attorney on the other side.” But enough of that. (Verbum sat sapientii.)

Recurring to the occasion the deed was executed, it was a time fixed for a family settlement and that was what they met for. Disinterested witnesses present testified to a delivery in unequivocal terms, giving circumstances. Plaintiff alone stands out contra. It would be. a daring and anxious matter to rule that because we might think it should not have been delivered it was not, and yet to that complexion we must come at last if we held there was no delivery. Indeed, as we read the briefs of counsel for appellant, the delivery of that deed is practically conceded. Whether conceded or not it must be held to have been accomplished.

The views announced make it unnecessary to consider a letter written by Robert II. Donaldson to plaintiff on tlie eve of their second engagement, of which much is made in appellant’s brief. Two views might be taken of that letter anent its use of' the word “home” in connection with the number of acres in the farm, but in the worst view to the writer of the letter, if the deed was delivered as we have held, he had lost the power to affect the title by his assurances, where, as here, the grantees in the deed are not shown to have taken part in practicing any fraud upon her in that regard or to have subjected themselves to an es-toppel. Indeed the use made of that letter seems to have been an afterthought. It was not introduced in chief when plaintiff was making her case and estoppel is not pleaded. The case cannot turn on that letter.

We have conceded to appellant the well settled proposition of law that the relation of a man to a woman he is about to marrv is a confidential one in an exacting and stringent sense. In fact, none is more so. lie carries the burden of showing that any ante nuptial contract entered into under the glow and trust of that tender and trust relation was made fairly and uliderstandingly on full disclosures, and is just and adequate. Courts are fond of applying that doctrine when the case calls for it. In this case it is applied to the annulment of the second contract. As to the first contract, we are of opinion the divorce stands in the way of giving plaintiff any relief from that doctrine or any other.

The rulings set forth dispose of the case. Questions by appellant relating to the introduction of testimony need not be discussed because if the challenged testimony was rejected it would avail her nothing. So, the rule in equity-is that questions relating to the admissibility of 'testimony, when that testimony is here on a hearing de novo on appeal, can rarely work a reversal. We can reject, consider, weigh and decide on the competent proof. The chancellor set aside the second marriage contract and opened np tlie personalty to plaintiff’s rights. That decree measures out her rights as the widow of Eobert IT. Donaldson on this record. If we could enlarge those rights by permitting her to share in the real estate, it would be a matter of judicial satisfaction, but for reasons stated that cannot be done.

Let the decree be affirmed. It is so ordered.

All concur but Brown, J., who dissents.