author: LAMM, J. GRAVES, J.

text:
    MYRTLE CHANDLER v. CHICAGO & ALTON RAILROAD COMPANY and O. HOLLIDAY, Appellants.
    Division One,
    June 28, 1913.
    1. APPELLATE JURISDICTION: Constitutional Question: Set- • tied After Appeal Taken. Where an appeal has been taken to the Supreme Court on the ground that the judgment involves the constitutionality of a statute, that court will retain jurisdiction if the appeal was taken prior to the time the validity of the statute was settled in other cases.
    2. PLEADING: No Cause of Action: Jurisdictional Matter. A petition that states no cause of action at all presents a defect in its nature jurisdictional, and its fatality may be raised in any court at any stage of the case. And a petition, filed in April charging that plaintiff’s husband was killed as the result of defendant’s negligence in the prior June, and asking for the statutory penalty, is such a petition.

      3. NEGLIGENCE: Death of Husband: Suit by Widow Nine-Months Later: No Cause of Action. A petition, filed by a. widow as plaintiff in April, in which she sues a railroad company and its engineer for the negligent killing of her husband in the prior month of June, under the statute which declares-that the individual or corporation guilty of certain negligent acts resulting in death, shall forfeit and pay as a penalty a sum not less than $2000 and not exceeding $10,000, which may be recovered, “first, by the husband or wife of deceased; or, second, if there be no husband or wife, or he or she fails to-sue within six months after such death, then by the minor-child or children of deceased,” is fatally defective, because the suit was not brought within six months; for the rule of law is that where a statute creates a new right and goes on to-prescribe the means of acquiring it, the statutory plan is exclusive, and parties are confined to the statutory remedy. In such statutory actions, the party suing must bring himself strictly within the statutory requirements necessary to confer the right, and this must appear in his petition; otherwise, it shows no cause of action.
    4. -: -: -:--: Amendment in Supreme-Court. Notwithstanding the statute (Sec. 2120, R. S. 1909) permitting amendments to pleadings in “the court into which such judgment shall be removed by writ of error or by appeal,” a petition cannot be so amended in the Supreme Court as to supply a material allegation omitted therefrom, in the-absence of proof brought up in the abstract. So where plaintiff sued for damages for the negligent death of her husband, nine months, after his death, the petition cannot be so amended' in the Supreme Court as to show that she brought the suit within six months, and suffering a nonsuit brought a new suit, within the year prescribed by Sec. 5429.
    5. APPEAL: No Cause of Action: Reversal: On One -Point Only. Where the petition states a cause of action in all respects-except that it omits one material allegation and a judgment has been rendered for plaintiff, the appellate court, where occasion demands, may, in an equity case, in which a jury fills no office of substance, reverse the judgment on one point only, and send the cause down for 'a rehearing on an amended petition on that sole issue. But such a reversal is not allowable in a case at law; for a law case is triable before a jury, and when it is sent down for a retrial it is tó be tried on questions of fact before another jury. So that where plaintiff, nine months after her husband’s death, sued a railroad company for negligently killing him, and in her petition failed to state that, having brought the suit within six months and having suffered nonsuit, she brought a new suit within one year, a judgment in her favor cannot he reversed on this one point only and the cause sent down for a rehearing on an amended petition on this sole issue. But in this case, in the exercise of a judicial discretion, justified by a showing of facts dehors the record, the cause is remanded for a new trial, and not simply reversed, although the petition does not contain such necessary allegation.
    6. NEGLIQENCE: Engineer: Obeying Signals. An engineer in charge of a switch engine, making up a freight train in the railroad yards, who, under the immediate supervision of a switch foreman and other switchmen’s orders and not otherwise, knew nothing of the exposed situation of the switchman of another road, who, many car-lengths from the engine, while coupling the air hose next to the caboose, was killed, when the cars were “kicked” back in obedience to signals, is not liable for said switchman’s death.
    7. -: Master and Servant: Switchman of Another Road. The relation between defendant railroad company and a switch-man of another railroad, who was killed while coupling the air hose to the caboose on a train that was being made up in defendant’s yards for said other railroad, was not that of master and servant; neither was he a trespasser, but an invitee, to whom defendant owed the duty of exercising ordinary care, subject to his own duty to use ordinary care for his own safety.
    Appeal from Franklin Circuit Court. — Hon. B. B. Byors, Judge.
    Reversed and remanded.

      Bcarritt, Bcarritt, Jones & Miller for appellants.
    (1) In order for the widow to maintain an action under the statute (now Sec. 5425, R. S. 1909), of the .suit is instituted more than six months after the death ■sued for, it must be alleged and proven that the deceased left no minor children. Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Mathieson v. Railroad, 219 Mo. 548. (2) The peremptory instructions asked by defendants at the end.of the evidence ¡should have been sustained. The verdict of the jury ■was necessarily founded upon conjecture rather than ■.upon substantial affirmative evidence. A verdict founded upon mere speculation or conjecture will not be allowed to stand. Moore v. Railroad, 28 Mo. App. 622; Warner v. Railroad, 178 Mo. 125; Yarnali v. Railroad, 113 Mo. 570; Trigg v. Lumber Co., 187 Mo. 234; McGrath v. Transit Co., 197 Mo. 97; Railroad v. Cathey, 70 Miss. 332; Wintuska v. Railroad, 20 S. W. (Ely.) 819; Ogelsby v. Railroad, 177 Mo. 272; Short v. Railroad, 69 Miss. 848; Corcoran v-. Railroad, 133 Mass. 507; Rogers v. Railroad, 88 Fed. 452; The Columbia, 106 Fed. 145; Railroad v. O’Brien, 132 Fed. 593; Railroad v. Shertle, 977 Pa. St. 450; Orth v. Railroad, 47 Minn. 384; Asbach v. Railroad, 74 Iowa, 248; Railroad v. State, 73 Md. 74; Perkins v. Railroad, 103 Mo. 52. (3) There is not a particle or even a scintilla of evidence in the record tending to show any negligent act on the part of Holliday. If defendant railroad company is liable at all in this matter, it is by virtue of the doctrine of respondeat superior. It follows that inasmuch as Holliday alone of defendant’s servants was singled out and charged with negligence in the petition-and as there was no proof of any negligent act on his part, the company cannot be held liable. McGinnis v. Railroad, 200 Mo. 361.

      E. S. Gantt and Barclay, Eaimtleroy, Cullen & Orthwein for respondent.
    (1) The system of rules or methods adopted by the master for the conduct of his business forms a part of the contract of hiring and is binding on both master and servant. The violation thereof by the master to the injury of the servant is culpable negligence. Lewis v. Railroad, 142 Mo. App. 585; Jordan v. Transit Co., 202 Mo. 423; Railroad v. Burton, 78 S. W. (Ky.) 823; Railroad v. Heck, 17 A. & E. R. Cas. 389; 4 Thomp. Neg. (2 Ed.), sec. 4165; Railroad v. Whit-comb, 111 Ind. 212; Wharton, Neg., secs. 205, 233; Luebke v. Railroad, 63 Wis. 91; Sobiesld v. Railroad, 41 Minn. 169; Railroad v. Murpby, 50 Ohio, 135; Railroad v. McElyea, 71 Tex. 389, 1 L. R. A. 411. (2) When the master, as is the case at bar, adopts a system of notification of danger the servant has a right to rely upon such notification, and the master is guilty of negligence, if he omits the customary signal. Tet-wiler v. Railroad, 242 Mo. 178; Lewis v. Railroad, 142 Mo. App. 585; Jordan v. Transit Co., 202 Mo. 423; Speed v. Railroad, 71 Mo. 303; Railroad v. Rhea, 84 S. W. (Tex.) 428; Barker v. Railroad, 21 S. W. (Ky.) 340; Railroad v. Schultz, 19 Ohio, 639; Ring v. Railroad, 112 Mo. 220; 1 Labatt, Master & Servant, p. 452, sec. 209; Anderson v. Mill Co., 42 Minn. 424. (3) The customary method of the defendant in the particular respect in question is always competent to explain the acts of the parties and may be considered on the issue of defendant’s negligence, and -plaintiff’s freedom from contributory negligence. Stockyards v. Godfrey, 198 111. 288; Bachant v. Railroad, 187 Mass. 392. (4) That negligence may be inferred from circumstances there is no doubt'in reason or upon authority, and likewise the due care of the person injured or killed and the place where he was at the time he was killed may be proven by circumstances. Lynch v. Railroad, 208 Mo. 1; 3 Ency. of Ev., 103; 6 Thomp. Neg. (2 Ed.), secs. 7863 and 7912; 7 lb. 7863; Black v. Tel. Co., 26 Utah, 451; Riñe v. Railroad, 100 Mo. 228; Harned v. Railroad, 51 Mo. App. 482; Haynes v. Railroad, 54 Mo. App. 585; Rosenfield v. Arrol, 44 Minn. 393. (5) Brakeman has a right to assume that engine will not be moved without signal from him. Railroad v. Courtney, 30 Tex. Civ. App. 541; Railroad v. Caskey, 84 S. W. 264; 7 Thomp. Neg., pp. 829-830-831. (6) If it is the custom of a railroad company to warn employees working upon the track, of the approach of an engine, by ringing the bell, or sounding the whistle, or otherwise, such servants are in a large measure relieved from tlie strict rule of self-protection and in very few cases can it be said that they are guilty of contributory negligence as a matter of law. •Ordinarily it is a question for the jury whether the injured servant was guilty of contributory negligence where the custom was not observed. Railroad v. Jackson, 78 Ark. 100, 6 L. R. A. 646; Sloan v. Railroad, 101 Minn. 113; Joyce v. Railroad, 100 Minn. 225; Ooodfellow v. Railroad, 106 Mass. 461; D’Agostino v. Railroad, 72 N. J. L. 358; Ditberner v. Railroad, 47 Wis. 138; Schultz v. Railroad, 44 Wis. 638; Davis v. Railroad, 159 Mass. 532. (7) It is not necessary to plead the existence of rules or of a custom. They are mere evidence bearing upon the question on the part of the defendant or its employees and the care and diligence of the person killed or injured. Alcorn v. Railroad, 108 Mo. 81; Logan'v. Railroad, 77 Mo. '663; Henry v. Railroad, 66 Iowa, 52; Pilkington v. Railroad, 70 Tex. 226.
   LAMM, J.

Plaintiff, widow of Albert Chandler, sued defendant railroad and Plolliday (a locomotive •engineer in its employ) in the Audrain Circuit Court on April 1, 1908, for the alleged negligent death of her husband on June 24, 1907, occasioned whilst operating a train of cars. The venue being changed to the Franklin Circuit Court, on a trial a jury gave her a verdict of $5000 against both defendants. From a judgment on that verdict, they, on apt steps and in ■due time, appealed here.

I. There is well lodged in the record a constitutional question, to.-wit, whether the act to' amend section 2864, Revised 'Statutes 1899, concerning damages, approved April 13, 1905 (Laws 1905, p. 135 — now Sec. 5425, R. S. 1909 — amended, Laws 1911, p. 203) is constitutional. True it is, the constitutional question, to-wit, the statutory plan permitting dis- ,. . , „ -, cretion m a jury to allow damages on a sliding scale from $2000 to $10,000, is now at rest (Young v. Railroad, 227 Mo. 307; Burge v. Railroad, 244 Mo. 76); but as the appeal was taken prior to the decision of the Young case and while the constitutional question was open, that fact vested jurisdiction in this court. Here it remains. So the precedents run. Thus: In Gabbert v. Railroad the constitutionality of a constitutional amendment permitting nine concurring jurors to render a verdict was first settled. [171 Mo. 84.] Appeals were pending here at the time the Gabbert case was decided in which our jurisdiction hinged solely on the question. We retained jurisdiction of them. Lee v. Jones, 181 Mo. 1. c. 297, is a sample. Following precedents, we retain jurisdiction of this appeal.

II. Two propositions advanced by appellants are that the petition states no cause of action and that demurrers to the evidence should have been given.

On the first day of April, 1908, plaintiff sued for the wrongful death of her husband occurring on the 24th day of the prior June, i. e., nine months gone. The statute by virtue of which plaintiff may álone sue provides that the individual or corporation guilty of certain negligent acts resulting in death, as here, shall forfeit and pay as a penalty the sum of not less than $2000 and not exceeding $10,000, which may be sued for and recovered, “first, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased,” etc. The statute goes on to provide third and fourth contingencies in which a father and mother or the survivor of them or an administrator may sue, but they do not concern us.

Though the petition shows that the death of Mr. Chandler occurred nine months before suit brought, yet it is silent on the existence of minor children. However, plaintiff’s proof shows that Mr. Chandler was about thirty years of age and left plaintiff as his. widow and three children — the -latter necessarily minors. Neither does the petition make any averments that would toll the six month statute; for instance, that she had appropriated the cause of action by a timely suit, but had suffered a nonsuit and commenced a new action within one year, thereby cutting the minors out. [R. S. 1909, sec. 5429; Packard v. Railroad, 181 Mo. 1. c. 426 et seq., and cases cited and commented on; McQuade v. Railroad, 200 Mo. 1. c. 157 et seq. See averments in the petition in the McQuade case as to appropriation of the cause of action in time and a dismissal.]

Demurrers, offered below to plaintiff’s evidence, were overruled and on saved exceptions are now pressed. Moreover, appellants insist here that the petition states no cause of action.

As to those grounds, we are of opinion the judgment stands for reversal on either or both. Because:

(a) There are some aiding general rules pertinent to the questions in hand, viz:

(1) In the first place, a petition that states no cause of action at all presents a defect in the nature of a jurisdictional one. The fatality of such defect is due to be raised in any court or at any stage of the case. The following are samples from a long line of cases sustaining one, the other or both of those propositions: Childs v. Railroad, 117 Mo. 1. c. 427, and cases cited: Lilly v. Menke, 126 Mo. 1. c. 212 et seq., .and cases cited; Hanson v. Neal, 215 Mo. 1. c. 278, and Hudson v. Cahoon, 193 Mo. 1. c. 557 et seq.

(2) In the second place, when a statute creates .a new right and goes on to prescribe the means of acquiring it, the statutory plan is exclusive and parties are confined to the statutory remedy, “If there would be no general liability for . neglect of the duty imposed, unless by statute, then it (the corporation) could only be held for the statutory liability.” [Per Bliss, J., in Iba v. Railroad, 45 Mo. 1. c. 474.) “It is a general rule of law that where . . . the statute creates a new right and prescribes a remedy, the statutory remedy is exclusive.” [Per Black, J., in City of Clinton v. Henry County, 115 Mo. 1. c. 569.) “Where a right Is created by statute and a remedy for its violation is given by the same statute, that remedy is exclusive unless the statute says otherwise.” [Per Valliant, P. J., in Albers Commission Company v. Spencer, 205 Mo. 1. c. 119.] State ex rel. v. Trust Company, 209 Mo. 1. c. 493; Carlisle v. Railroad, 168 Mo. 1. c. 656; State ex rel. v. Snyder, 139 Mo. 1. c. 554, read likewise.

We are not dealing here with cumulative remedies as where the common law gave one and the statute supplemented that one, or where equity gave one and the statute stepped in and gave another at law, nor with that class of cases where the statute gives a new right and prescribes no remedy at all. Such cases have their own pertinent doctrines, not concerning us at this time.

(b) Attending to the propositions announced in paragraph “a,” they have been consistently and uniformly applied, so far as I am advised, to ruling the precise questions now up for considerafion — questions anything but new. A party suing under the statute referred to must bring himself in his pleading and proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action and his proof is insufficient to sustain his judgment. Only such persons can recover (and in such time and in such manner) as the letter of the law prescribes. Only such persons -may sue as the statute permits and they alone can sue. They must sue, too, within the time prescribed by the statute. It must “be conceded that the section reserves to* itself the exclusive power of naming those who could maintain the action and of fixing the time in which each of the enumerated persons could sue.” [Aley v. Railroad, 211 Mo. 1. c. 478; Barker v. Railroad, 91 Mo. 1. c. 94; McNamara v. Slavens, 76 Mo. 329; Coover v. Moore, 31 Mo. 574; Oates v. Railroad, 104 Mo. 1. c. 518; Barron v. Lead and Zinc Co., 172 Mo. 228; Packard v. Railroad, 181 Mo. 421; Hennessy v. Brewing Co., 145 Mo. 1. c. 113; Clark v. Railroad, 219 Mo. 1. c. 538 et seq.; McIntosh v. Railroad, 103 Mo. 131; Mathieson v. Railroad, 219 Mo. 1. c. 548 et seq.; Marshall v. Mines Co., 129 Mo. App. 649.]

In the Barker case, supra, the acceptable doctrine was put in this way: “In statutory actions of this sort, the party suing must bring himself strictly within the statutory requirements necessary to confer the right, and this must appear in his petition; otherwise, it shows no cause of action.” The reasoning and pronouncements of the whole body of eases cited are aptly epitomized in the above excerpt from the Barker case.

It may be said, then, as the sum of the matter that outside of that statute plaintiff had no right to sue, therefore she must bring herself inside the statute in order to sue. This she has not done and for that reason the judgment must, at least, be reversed. Whether the cause shall be remanded presents a question we will next examine.

III. Recognizing that the situation is ticklish, learned counsel tender an amendment in this court to the effect that the widow appropriated the cause of action within six months of her husband’s death and that thereafter having suffered a nonsuit she instituted a new suit within the year prescribed by section 5129, Revised Statutes 1909. They point to a statute permitting amendments in “the court into which such judgment shall be removed by writ of error or by appeal.” [R. S. 1909, sec. 2120.] They argue, also, that the section preceding the one just referred to is in point; that neither party has been prejudiced; that the merits of the action have not been materially affected. But we are unable to agree with counsel. If a material allegation is absent from the petition, as here, and the proof thereon is absent, as here, it would be a startling innovation for us to allow an amendment and to proceed to judgment, in the absence of proof sent here in the ancient way, to-wit, in an abstract of the record. I think no precedent can be found for that course and the absence of precedent is due, doubtless, to the lack of meritorious substance in such a dangerous novelty.

It is further argued that if the judgment is reversed it should be reversed only on the one point, and not generally, and that the cause should be sent down for a rebearing on an amended petition'on that sole issue. In equity where the issues rest with the chancellor, and a jury fills no office of substance, that course is sensible where occasion demands. It is within precedent. We cite one case out of many. [Leeper v. Taylor, 111 Mo. 1. c. 326.] But in a case at law triable to a jury, to send the case below on one question of fact to be tried out before another jury, leaving other issues of fact foreclosed by a former verdict, is contrary to our statutory scheme for jury trials. It would result in awkward situations and complications not conducive to the orderly administration of justice. If learned counsel are of a mind that such course would be a reform in jurisprudence, they must appeal to legislative power for the remedy.

But on the suggestions of learned counsel, made •obviously in good faith, brought to our attention in briefs and in a so-called supplemental abstract (which, by the by, is not an abstract of the record at all but a compendium of matter dehors the record in this case), we are not willing to reverse the judgment without remanding the cause. "We have a discretion in that particular and a wise exercise of it runs with remanding this cause for the amendment of the petition (if counsel so elect) and a' new trial. That we are within the beaten way, and therefore the safe way, in taking that course there can be no doubt. Witness: Bowen v. Railroad, 95 Mo. 268; Tickell v. Railroad, 90 Mo. 296; Sampson v. Mitchell, 125 Mo. 1. c. 232-3; Haseltine v. Smith, 154 Mo. 404. So, the reasoning of the per curiam in the Finnegan case (244 Mo. 1. c. 662 et seq.) Is in line with the above conclusion.

TV. Many questions are raised on this record which may disappear from a new trial or assume another form, hence, as the case has broken, we shall say nothing about them at this time. But the record and briefs are in such form as to deserve two general observations serving a useful office on a new trial. Thus:

(a) Defendant Holliday is not liable on the record now before us, hence, if on another trial there is no new evidence tending to fasten liability on him, a demurrer on his part should be sustained. -^-e was a11 employee of his corporate co-defendant, the engineer of a switch engine making up a train in the yards at Francis, Missouri, in the darkness of night. Decedent was a brakeman, an employee of a different railroad corporation, the C. B. & Q. Holliday was under the immediate supervision of. a switch foreman, obeying his and other switchmen’s orders and not otherwise. The accident happened in “kicking” or pushing-down some loaded freight cars in those yards to make up a train for St. Louis. Holliday was many car-lengths from where decedent was killed, while, it is supposed, he was coupling the air hose next to the caboose of the train being made up. Holliday moved his engine backward, forward, stopped the same and controlled its speed solely by lantern signals given by the foreman and switchmen on the ground or cars. There is no testimony he knew anything of the presence of decedent or his exposed situation at the time. There is no testimony he did not in all things obey the signals given him by those commanding his movements. Contra, the testimony all indicates that he did. We perceive, at this time, no liability on his part.

(b) The relation between decedent and the corporate defendant was not that of master and servant, as inadvertently argued by counsel. It seems defendant railroad company was making up the train in a railroad yard used jointly with ^g for which latter, as said, decedent was working — the intention being that when the train was so made up the C. B. & Q. would hitch on its own engine and pull it over its own line to St. Louis. Decedent was no trespasser but an invitee at least, and defendant railroad company owed him the duty of exercising ordinary care towards him subject, to his own duty to use prdinary care for his own safety. Within the lines of those simple correlative duties must liability be worked out, if at all. On this record we withhold our judgment on the merits until, if ever, the case comes here fully developed on a sufficient petition. [Higgins v. Higgins, 243 Mo. 1. c. 173-4; Groves v. Terry, 219 Mo. 1. c. 599.]

Let the judgment be reversed and the cause remanded for further proceedings conformable to this opinion. It is so ordered.

Woodson, P. J., and Bond, J., concur; Graves, J., concurs in separate opinion filed.

SEPARATE OPINION.

GRAVES, J.

I concur in this opinion of my brother Lamm in so far as he undertakes to announce doctrines of law. His legal deductions are right. I do not agree that this case should be remanded, because in my judgment the plaintiff failed to make out a case upon the merits by her proof, givSIlck Pro°f its broadest latitude, and permitting all reasonable inferences therefrom. In other words, eliminating the question as to whether the petition stated a cause of action, by reason of the absence of the material allegation discussed in the principal opinion, my view is that’ the facts shown fail to show the plaintiff’s husband met death by reason of the negligence of defendants or either of them. The cause of his death is purely speculative.

If the facts given upon the merits would warrant the remanding of the cause, then I would agree with my brother in the doctrine announced in the latter part of his paragraph three, to the effect that such .a showing had been made here as would warrant the remanding of the cause to the end that the petition' might be amended. Rut this does not reach what I •deem the vitals of the case. My view is that we might •concede that the petition stated a cause of action, yet the cause should not be remanded, because plaintiff’s proof fails to make out the case pleaded. I, therefore, am of opinion that the judgment should be reversed without remanding the cause.


source: Caselaw Access Project

author: WOODSON, P. J.

license: Public Domain

text:
    PROGRESS PRESS BRICK & MACHINE COMPANY v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division One,
    June 28, 1913.
    RAILROAD: Easement Over Tracks: Obstruction: Condition Subsequent. Where a railroad company by deed sold to a brick company certain property and “permission to cross over its railroad tracks, at or near Scanlon avenue, with the privilege to drive over its land lying between Fyler avenue and Scanlon avenue, until such time as a street or highway may be established and opened in that vicinity across its railroad, thereby giving and securing to said brick company as direct and convenient ingress and egress to and from the property hereby conveyed as is hereby granted,” it could not obstruct said easement by fencing its tracks until a street or highway was established and opened in the vicinity, and a street which secured to the brick company “as direct and convenient ingress and egress” to and from its property as the right of way conveyed; and the construction of a bridge over its tracks at Fyler avenue, which required the brick company to travel about eight hundred feet further in hailing its brick to market, was not a compliance with the subsequent condition. The construction of an elevated bridge is not equivalent to the establishing and opening of a street. Nor is the longer route, with a steeper grade, “as direct and convenient.”
    Appeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Affirmed.

      Jones, Hooker, Hawes & Angert for appellant; W. F. Evans and Vincent L. Boisa-ubin of counsel.
    (1) In construing a clause in a deed the principal object to be arrived at is the intention of the parties; and. in order to ascertain the true meaning, the court will consider all the facts and circumstances attending the execution of the deed. Bank v. Kennett Est., 101 Mo. App. 388; Lakeman v. Railroad, 36 Mo. App. 371'; 17 Am. & Eng. Ency. Law, 21, 22; Devlin on Deeds, secs. 836, 836a, 837, 839. (2) The trial court erred in entering the decree in favor of respondent and in overruling appellant’s motion for a new trial on the ground that the judgment and decree is against the evidence- and the weight of the evidence. While this court will defer to the 'findings of the trial court in equity cases, it will not be concluded thereby hut will make its own findings in accordance with the weight of the evidence - Derry v. Fielder, 216 Mo. 195; Huffman v. Huffman, 217 Mo. 241. The evidence, properly considered, warrants, and could only warrant a decree for defendant denying the relief asked and dismissing the bill. (3) Unless the plaintiff’s right is clear and certain, the court will not enforce specific performance or what amounts to specific performance. 26 Am. & Eng.. Encv. Law, 32; Wend over v. Baker, 121 Mo. 293; Mastin v. Halley, 61 Mo. 200; Mueller v. Fire Ins. Co., 45 Mo. 84; Strange v. Crowley, 91 Mo. 294; Tribune Pub. Co. v. Assoc. Press, 83 Fed. 357; Pomeroy on Contracts, sec. 159; Fry on Spec. Perf., sec. 152; Strang v. Railroad, 93 Fed. 75; Stanton v. Singleton, 126 Cal. 157, 47 L. R. A. 334; Zeringue v. Railroad,. 34 Fed. 243. (4) Even assuming that the contingency terminating the easement has not occurred, yet a court of equity will not decree specific performance (or an injunction amounting to specific performance), to enforce a mere technical right, if the enforcement of such right would be attended with great detriment to the defendant and with but little benefit to the plaintiff. A court of equity will, in granting an injunction, balance the equities and weigh the benefits to accrue therefrom against the disadvantages which will result from the refusal thereof. Bank v. Kennett Est., 101 Mo. App. 395; Christian v. S-t. Louis, 12.7 Mo. 115; Bailey v. Culver, 84 Mo. 539; Shubert v. Woodward, 167 Fed. 60; Bliss v. Mining Co., 167 Fed. 365; 26 Am, & Eng-Ency. Law, 66.

      Schnurmacher & Rassieur for respondent.
    (1) The easement sold and granted by defendant to plaintiff, for a valuable consideration, was the right “to cross over its railroad tracks, at or near Scanlan avenue, with the privilege to drive over its land lying between Fyler avenue and Scanlan avenue, until such time as a street or highway may be established and opened in that vicinity,” etc. The principal thing granted was the right to cross at Scanlan avenue; the incidental thing granted was the right to drive over the intervening land, to reach Scanlan avenue ; the easement to cross is to continue until a street or highway shall be established and opened in the vicinity of the place of crossing; that is, at or near Scanlan avenue. (2) Though, as a matter of fact, no new street or highway has been established in the vicinity of Scanlan avenue between October 22, 1902, and August 1, 1908, yet if the erection of the bridge be treated as a new street or highway, the trial judge, sitting as a chancellor, and seeing and hearing the witnesses, found that the crossing of defendant’s tracks and right of way by means of such bridge was neither as direct nor as convenient as by way of the road described in the deed. While it is true that in equity cases this court'is not concluded or bound by. the findings of fact of the' chancellor, it nevertheless defers largely to them and generally accepts such findings where, as here, the evidence is conflicting. Fifer v. McCarty, 243 Mo. 42; Albright v. Stephenson, 227 Mo. 333. (3) The doctrine that a court of equity, in an application for an injunction, will balance the rights of the parties, has no application where the interest sought to be protected is based on contract or statute. * ‘ The extent of the injury is vital when a nuisance, unrelated to contractual rights, is the gravamen of the action; but if parties settle their rights in regard to a parcel of land by covenants, these must be observed, whether their non-observance will inflict injury or not.” Bank v. Kennett Estate, 101 Mo. App. 370; Sullivan v. Steel Co., 208 Pa. St. 540; Commonwealth v. Eailroad, 24 Pa. St. 159; Dickerson v. Canal Co., 15 Beav. 260; Sanders v. Dickson, 114 Mo. App. 229; Paddock v. Somes, 102 Mo. 226.
   WOODSON, P. J.

Bill in equity, begun in the circuit court of the city of St. Louis, by the plaintiff, to enjoin the defendant from obstructing and interfering with the former’s easement or right of way across the latter’s railroad track at or near Seanlan avenue in the city of St. Louis.

A trial was had which resulted in findings and a decree for plaintiff, enjoining the defendant from further obstructing said way; and after defendant’s motion for a new trial was overruled by the circuit court, the latter duly appealed the cause to this court.

The facts are few and practically undisputed. The plaintiff is a corporation organized and incorporated •under the laws of this State, and is engaged in the manufacture and sale of brick in said city.

The plant of the plaintiff is located in the southwestern portion of the city, near the river Des Peres, <on the west side of said railway track, near the western end of Seanlan avenue. Said track, in that vicinity, runs in a southeasterly and northwesterly direction, and then runs practically east and west. Scanlan and Fyler avenues run east and west, with Bradley avenue between and paralleling them.

The right of way across the defendant’s tracks was obtained by plaintiff from defendant, for a valuable consideration by a deed in regular form, dated October 22, 1902. It conveyed to plaintiff a certain tract of real estate situate in said city, lying immediately south of Fyler avenue, together with the aforesaid right of way. The latter grant was expressed in the following words.

“The said party of the first part also grants nnto the party of the second part, its successors and assigns, permission to cross over its railroad tracks at or near Scanlan avenue, with the privilege to drive over its land lying between Fyler avenue and Scanlan avenue, until such time as a street or highway may be established and opened in that vicinity across its railroad, thereby giving and securing to them as direct and convenient ingress and egress to- and from the property conveyed as is hereby granted.”

The deed was executed in behalf of defendant by Mr. C. H. Beggs, its vice-president; and the evidence showed that Mr. Beggs, together with Mr. C. D. Purdon, defendant’s engineer, conducted the negotiations which resulted in this deed and grant, and that the conveyance itself was prepared by counsel for defendant upon instructions from Mr. Beggs.

The evidence showed that on or about August 1, 1908, defendant obstructed plaintiff’s right of way by placing barriers along the .sides of its tracks at or near Scanlan avenue and by maintaining cars at that point and by removing the materials which formed the driveway across the tracks; and that defendant threatened, notwithstanding a demand on the part of plaintiff that it cease so doing, to continue such obstruction and interference.

Defendant admits that on October 22, 1902, “plaintiff purchased and acquired from defendant, for use in its business of manufacturing, selling and dealing in brick, that certain piece, parcel or tract of land lying and being in the city of St. Louis, Missouri, described in plaintiff’s petition, and that in connection with the purchase and acquisition of said piece of property, plaintiff also acquired from defendant permission to cross defendant’s railroad tracks, at or near Scanlan avenue and Fyler avenue in said city.” Also that plaintiff gave defendant a valuable consideration for said property and for said easement and that it executed and delivered to plaintiff the deed above referred to.

Defendant further admits that on or about August 1, 1908, or at .some time prior thereto, it obstructed plaintiff in the exercise of said easement and that it still continues so to do, “thereby preventing-plaintiff from driving across the same.”

In justifying its conduct in obstructing plaintiff’s easement, the answer pleads that, pursuant to an ordinance of the city of St. Louis, defendant received permission and authority from the city to carry Fyler avenue over its tracks, by the erection of a bridge, with suitable abutments and retaining walls, and that said bridge was opened at some time prior to August 1, 1908, and that by means of such bridge plaintiff is afforded “direct and convenient ingress and egress to and from its said property. ’ ’

The evidence shows that prior to October, 1902, the defendant had formulated plans for using this tract of land for yard and roundhouse purposes; also that Fyler avenue and Frisco avenue, the latter paralleling defendant’s track on the east, were at all times mentioned, public streets duly established and used as such; and that on Fyler avenue crossing-planks had been laid between the rails of defendant’s tracks and on the outside thereof, for the purpose of facilitating vehicles in crossing .the same at that point.

From October 22, 1902, the date when plaintiff acquired said right of way over defendant’s tracks, the physical situation in the vicinity under consideration had not changed a particle until up to August 1, 1908, the date when the defendant obstructed said way of the plaintiff, except in the meantime the former had erected an elevated bridge over Fyler avenue, in pursuance to the ordinance mentioned in the answer, which was opened to travel about August 1, 1908.

The distance from plaintiff’s plant to its easement or way across the defendant’s tracks, at Scanlan avenue, was considerably shorter than-was the distance to the elevated bridge, constructed by defendant at Fyler avenue; the witnesses testified, from two to five blocks; also that distance nearer the market for its brick. The grade of the road to the Scanlan crossing, the easement right of way, was a much better and easier grade than the one leading to. Fyler avenue crossing, notwithstanding one short, steep grade in the former. It was generally used by the teamsters, because of that fact, and because it was the more convenient route.

The survey of this route, made by Julius Fitzman, an engineer, together with the profile drawings on the same, show that the drive over the bridge is not only longer, but a long, steep grade, practically all the way, and less convenient for plaintiff.

I. The right of way sold by defendant to the plaintiff was the right “to cross over its railroad tracks, at or near Scanlan avenue, with the privilege to drive over its land lying between Fyler avenue and Scanlan avenue, until such time as a street or highway may be established an^ 0p6ne¿i vicinity . . . thereby giving and securing to them as direct and convenient ingress and egress to and from the property,” etc.

By this reading the terms of the grant of the right of way it will be seen that it is impressed with a condition subsequent composed of two provisions, namely: first, that it should continue until such time as a street or highway might be established and opened in that vicinity; and, second, thereby giving and securing the plaintiff as direct and convenient ingress and egress to and from its property, as the one conveyed to plaintiff by said deed of October 22nd, 1902.

The question before ns for determination is, has this condition subsequent been fulfilled? If that question is to be answered in the affirmative, then the decree of the circuit court enjoining the defendant from obstructing the right of way of the plaintiff must be reversed and the bill dismissed; but if it is to be answered in the negative, then the decree of the circuit court must be affirmed.

We will consider the two elements of the condition in the order stated.

Attending the first: Has a street or highway been established and opened in that vicinity since the grant was made?

That question must be answered in the negative. In fact, there is not a scintilla of evidence preserved in this record tending to show that fact; but upon the contrary the undisputed evidence conclusively shows that the physical conditions in that vicinity had not changed a particle since the date of the grant of the way to plaintiff down to the date of its obstruction by the defendant, except the latter constructed an elevated bridge over its tracks at Pyler avenue, which the greater weight of the evidencé shows was about eight hundred feet out of plaintiff’s way in hauling its brick to market.

The construction of this bridge is the only shadow of justification defendant makes for obstructing plaintiff’s way, and that is made upon the theory that the building of said elevated bridge was equivalent to the establishment and opening of a highway within the terms of the grant of the way to plaintiff.

That contention is wholly untenable. The construction of the bridge was neither in the letter nor spirit of the grant.

We therefore decide this against the defendant.

II. Regarding the second question previously stated: It is only necessary to state that we .have carefully read all the evidence bearing upon that ques-. tion, and find from the greater weight of the evidence, as the circuit court found, that the construction of the elevated bridge at Pyler avenue did not give plaintiff a “direct and convenient ingress and egress to and from its property,” as was the one conveyed to it by the deed of October 22, 1902.

That is almost conclusively shown by the fact that the teamsters generally use the Seanlan avenue route in preference to the bridge route.

Moreover, the survey and drawings made by Mr. Pitzman, a competent engineer, showing the physical conditions and supported by the weight of the testimony of the eye-witnesses, leaves but little doubt as to the fact that the granted way was much more direct and convenient for the plaintiff than was the bridge route; and we therefore answer the second question in the negative.

Entertaining these views, we are of the opinion that the findings and decree of the circuit court were correct, and should be affirmed.

It is so ordered.

All concur.


author: BOND, J.

text:
    JAMES E. PEW, Trustee in Bankruptcy of Estate of EARL R. PRICE, Appellant, v. J. N. PRICE.
    Division One,
    June 28, 1913.
    1. EQUITY SUIT: Instructions. Instructions have no place in a suit in equity.

      H. BANKRUPT ACT: Preference: Recording Deed. It is not essential to the validity of a conveyance of real estate that .the deed be recorded or registered. If the deed was delivered to the grantee four months before the bankruptcy proceeding against the grantor was begun and the possession of the land followed its delivery, the grantee was thereupon vested with full title as against the grantor, and there was no such preference of the grantee as made the conveyance invalid as to other creditors under the Bankrupt Act, which declares that “where the preference consists of a transfer, such period of four months shall not expire until four months after the date of the recording or registering of the transfer, if by law such recording or registering is required.”
    S. -: -: -: Chattel Mortgage. The statutes relating to the recording of mortgages of personal property are different in terms and legal effect from the statutes governing the conveyances of réal estate. ' The grantee of land whose deed has not been recorded takes the title as against the grantor’s prior or subsequent creditors who do not procure a sale of the land by legal process before the recording of the deed. But a chattel mortgage, if not recorded, is invalid as to subsequent creditors, and is good against prior creditors' where possession of the property is taken before such creditors fix a lien thereon.
    4. FRAUDULENT CONVEYANCE: Bankrupt Act. A conveyance fraudulently contrived may be set aside because of its fraudulent character, although not invalid under the Bankrupt Act as an illegal preference.
    5. -: Preference. An insolvent debtor has the right, in the payment of' his debts, to prefer one creditor over another, provided the payment is made and received in good faith, and not with the intent to hinder, delay and defraud any other creditor, except as that might necessarily result from the mere act of paying in full the just debt of the preferred creditor.
    6. -: -: Honest Transaction. Where the property was conveyed for its reasonable value and to discharge an honest indebtedness and neither grantor nor grantee had any purpose to defraud any other creditor, the conveyance was not fraudulent, although it left the grantor insolvent and his other creditors were thereby hindered and delayed.
    Appeal from Louisiana Court. of Common Pleas.— Hon. David H. Eby, Judge.
    Abbirmed.

      James E. Pew and Pearson c& Pearson for appellant.
    (1) A very comprehensive, terse, and apropos epitome of the law applicable to the facts in this case is treated in Landis v. McDonald, 88 Mo. App. 347,. and Babbitt v. Kelley, 96 Mo. App. 534. (2) Tbe court committed error, botb in refusing the two instructions asked by appellant, and in giving tbe instructions asked by tbe respondent. Tbe court gave no indications, upon wbat law, or theory of tbe law, he applied tbe evidence and rendered bis findings and decree in this case. Babbitt v. Kelley, 96 Mo. App. 535. (3) A debtor is insolvent within tbe meaning of tbe Bankrupt Act, where bis indebtedness is greater than bis assets. (4) Tbe entire testimony of tbe father and son shows conclusively that at tbe time of tbe execution and delivery of said deed, tbe son was insolvent; and that respondent bad not only reasonable cause to believe bis son was insolvent, but that be had such facts and statements made to him that absolute knowledge of insolvency was brought directly home to him. (5) Tbe conveyence was fraudulent. Tbe evidence is not only strong enough to show insolvency on tbe part of tbe son and knowledge on tbe part of the father; but that tbe conveyence was fraudulent on tbe part of botb son and father; and made with tbe purpose on tbe part of tbe son of taking advantage of tbe Bankrupt Law, as soon as four months should have passed, after tbe date of the execution and delivery of said deed. (6) Tbe four months’ possession only avails as a defense or a bar, when tbe conveyance is by an instrument, which is not subject to record. Otherwise, tbe four months’ limitation is from tbe date of tbe filing for record of such instrument. Babbitt v. Kelley, 96 Mo. App. 535.

      John W. Matson for respondent..
    (1) Earl R. Price was a voluntary bankrupt and therefore, paragraphs a and b of section three of chapter three of tbe Bankruptcy Law which provides under wbat conditions ‘ ‘ a petition may be filed against a person who is insolvent and who has committed an act of bankruptcy within four months after the commission of such act” and which said paragraph b refers to “transfers of any of his property with intention to hinder, delay, or defraud his creditors,” or for the purpose of giving a preference as hereinbefore provided and which paragraph further provides that the four months which begin from “the date of the recording or registering of the transfer. . . if by law such recording or registering is required or permitted, or, if it is not, from the date when the beneficiary takes notorious, exclusive, or continuous possession of the property,” only applies to an involuntary bankrupt against whom a petition is filed. (2) Under the laws of this State a debtor can prefer any of his creditors and such preferences are not “held null and void as against the creditors of such debtors by the laws of the State.” Cole v. Cole, 231 Mo. 236; Urowney v. Lowe, 234 Mo. 689; First Nat’l Bank v. Pry, 216 Mo. 24; Black v. Epstein, 221 Mo. 286. (3) An unrecorded deed is good against a judgment if recorded before an execution sale under the judgment, and the mere withholding the deed from the record does not invalidate it as to creditors. In that respect they bear no analogy to the question of recording as applied to chattel mortgages. The reason is that the two classes of deeds are based on wholly different statutes. Simpson v. Stoddard County, 173 Mo. 451; Harrison v. Mining Co., 95 Mo. App. 86; Davis v. Owenby, 14 Mo. 170; Deen v. Bjane, 195 111. 455; Parham v. Priedmeyer, 109 111. App. 54. The record title of the property in controversy was in the respondent at all times. The bankruptcy statute in reference to four months period and the time within which conveyances are “required” to be recorded do not apply in this case. The actual, open and notorious possession of the property and the record title thereof had never been out of respondent prior to the time that Earl R. Price was declared to be a bankrupt. Drug Co. v. Drug Co.,. 136 Fed. 396; Tatman v. Humphrey, 181 Mass. 361; Bank v. Connett, 73 O. C. A. 219; Summerville v. Milling Co., 112 Cal. 529; In re Hunt, 139 Fed. 283; In re Chadwick, 140 Fed. 674; Bradley, Clark .& Co. v. Benson, 93 Minn. 91; Seager v. Lamm, 95 Minn. 325; Joseph v. Raff, 176 N. Y. 611; Sabin v. Camp, 98 Fed. 974.
   STATEMENT BY THE COURT.

In 1898, J. II. Price conveyed to his son, Earl R. Price, eighty acres of land, whereon was a two-story house of seven rooms, for the consideration of $3250, which was paid in the following manner: $1000 thereof to be a gift to his son; $500 to be paid in cash, and $1750 to be evidenced by the son’s note to the father. The deed to Earl R. Price was delivered, but not recorded, and he took possession of the land and lived there until August 15, 1908. Just prior to that date, he was pressed by his father for the payment of the balance due on the note given for part of the purchase money. Not being able to comply with this demand it was finally agreed between them that he should quitclaim the land, then worth $3200, to his father, who would thereupon surrender the note and an account for tases paid, then amounting to $3175. This was done. The father did not record the quit-claim deed to him. Just prior to the reconveyance of the land, the house thereon was burned, for which the son collected in insurance at one time $1000 and later a subsequent installment of $500. The son was insolvent and then .indebted in the sum of $1000. About $790 thereof evidenced by his notes and the remainder by the notes of himself and his father. He gave $800 of the insurance money to his wife. The father who had received back his warranty deed from his son, withheld it from record under the advice of his attorney until the 5th day of April, 1909. On March 5, 1909, the son filed a petition in the Federal court at St. Louis seeking to be adjudged a voluntary bankrupt. He listed the claims heretofore mentioned, some of which in the meantime had been reduced to judgments against him. One of these creditors after his house was burned, sought unavailingly to collect his claim, and tried unsuccessfully to get the defendant to influence his son to pay.

Plaintiff James E. Pew was appointed trustee in the bankruptcy proceeding and instituted this suit for the purpose of annulling the reconveyance of the land by the son to tbe father on the ground that it was a fraudulent preference under the Bankrupt Act. His petition on the point is to-wit:

“Plaintiff further states that after making the execution and delivery of said above deed, from the said Earl R. Price, bankrupt, to his father James H. Price, the said deed was on purpose, and intentionally withheld from the recorder’s office in the county of Pike, State of Missouri; that said deed was not and had not been on the 5th day of March, 1909, the date the said Earl R. Price was adjudged a bankrupt, filed for record, nor recorded in the recorder’s office in the county of Pike and State of Missouri.
“Plaintiff further states that the said conveyance made as aforesaid was made within four months of the filing of the petition, and the adjudication of the said Earl R. Price a bankrupt, within the meaning of the bankrupt enactment, and is therefore void as against the other creditors of the said Earl R. Price, bankrupt.”

The answer was a general denial and a claim of a vendor’s lien, and alleged that the deed given was withheld from record upon agreement that it should in that way secure the note for the balance of the purchase money. The answer also averred the foregoing facts and prayed for general relief.

At the end of the trial the court refused certain instructions asked by plaintiff and declared the law to be that he could not recover under the pleadings and evidence, and gave judgment for the defendant from which this appeal is taken.

OPINION.

I.

BOND, J.

(After stating the facts as above.)— This being an action in equity instructions have no place in it. [Troll v. Spencer, 238 Mo. 1. c. 92; Anthony v. Kennard Bldg. Co., 188 Mo. 704; Gerstner v. Payne, 160 Mo. App. 1. c. 296; Epstein v. Railroad, 143 Mo. App. 135.]

The only question presented by this appeal is for whom, under the case submitted, the decree should go; or has the plaintiff made out a case for equitable relief by a preponderance of the competent evidence contained in the record?

The legal questions presented are: first, whether the reconveyance by the son to the father was a voidable preference under the Bankrupt Act? Second, if not, whether it was a fraudulent disposition of his property, and hence voidable as to his creditors or their representatives of the grantor? A.s to the first question. The language of the provision of the Bankrupt Act bearing on it, is that, “Where the preference consists in a transfer, such period of four months shall not expire until four months after the date of the recording or registering of the transfer, if by law such recording or registering is required.”

It is not essential to the conveyance of real estate between parties, that the instrument of transfer should be either registered or recorded. Here the deed from the son to the father was delivered more than four months 'before the bankruptcy proceeding was begun, and the possession of the land followed the deed. The grantee was thereupon invested with full title as against his son. [R. S. 1909, sees. 2809, 2810, 2811.] "We see no occasion under these facts to stretch the Bankrupt Act by construction beyond the'natural import of its terms. These do not bring the transaction between the parties within its provision. There has been some diversity of view as to the meaning of the last clause above quoted. Its present language resulted from the amendment of 1903. ^

In his valuable work on Bankruptcy, Mr. Collier (9 Ed., p. 799), in speaking of the meaning of the terms contained in the last clause above quoted, says: ‘ ‘ The failure to record a deed until after the grantor’s adjudication as a bankrupt, is not sufficient .to make it an unlawful preference, in the absence of a fraudulent agreement, where, under the State law, the unrecorded instrument is valid between the parties and against general creditors.” He, however, concedes that there are eases which hold that if recording or registration is required for any purpose, though not for all, it is to be deemed as required within the meaning of the above provision of the Bankrupt Act. He then states as his own conclusion on the subject the true rule to be as follows: “The purpose of the amendment will be effectuated by construing it as referring to transfers which required recording or registration to make them valid as against general creditors.”

This statement of the law is fully sustained by the able judgment of Sanborn and Carland, Circuit-Judges. [Sturdivant Bank v. Schade, 195 Fed. 188.] The' question in that case was the same as the one ' presented here. There the trustee of a bankrupt corporation sought to annul a transfer by it of certain notes, which were secured by a deed of trust, to a bank as collateral security. The transfer of the notes to the bank was made more than four months before the corporation hypothecating them became a bankrupt, but the deed of trust securing them was not recorded for four months before said bankruptcy. Tbe contest was between tbe bank and tbe trustee of tbe corporation on these facts. Tbe court held, after a review of our decisions, beginning with Davis v. Owenby, 14 Mo. 170, and including Harris on Machine Worke v. Bowers, 200 Mo. 219, that these constructions of tbe Missouri statute (R. S. 1909, secs. 2809, 2811) were controlling and established tbe law to be, that the grantee of an unrecorded deed takes title as against tbe general creditors of tbe grantor who have not, by execution or attachment, procured tbe sale of tbe land before tbe recording of tbe deed. Tbe court further held that tbe trustee of tbe bankrupt corporation must be deemed as having a lien on tbe land described in tbe trust deed, and since that bad not been enforced by him before tbe bank put its trust deed on record, be bad no rights superior to tbe bank. We think tbe conclusion thus stated is clear in logic and sustained by tbe Missouri cases cited in tbe opinion. Tbe application of that rule to tbe present case affords a complete solution for tbe first question under review. Tbe facts here are that tbe reconveyance from tbe bankrupt to bis father was made more than four months before tbe proceódings in bankruptcy were begun and tbe quit-claim deed was actually recorded before tbe present suit of tbe trustee was instituted. So that, •when this step was taken, tbe defendant in this case bad put himself in a status which would have protected him against an execution or an attachment creditor of bis grantor, who bad not theretofore caused a sale of tbe land; and hence, under tbe rulings of tbe Federal court, be was equally protected against tbe trustee in bankruptcy.

This being so, it is unnecessary to deal with tbe question as to whether tbe defendant bad reasonable grounds to believe tbe reconveyance to him would work a preference. For whether that was true or not, tbe fact that this occurred outside of tbe time wherein preferences are forbidden by tbe Bankrupt Act, relieves it from attack as a violation of that act.

We have not overlooked the decisions cited by the learned counsel for appellant from the courts of appeals. [Landis v. McDonald, 88 Mo. App. 335; Babbitt v. Kelley, 96 Mo. App. 529.] Neither of these cases are in point, for they relate to a construction of our statutes as to the recording of mortgages of personal property, which are different in terms and legal effect from the statutes governing the conveyances of land. [Harrison v. South Carthage Min. Co., 95 Mo. App. 80; R. S. 1909, sec. 2861.] In the latter case, as has Ijeen seen, the grantee whose deed is not recorded, takes the title as against prior or subsequent creditors of the grantor who do not procure a sale of the land by legal process before the recording of the deed. In the former case (chattel mortgages, etc.), the instrument is, if unrecorded, invalid as to subsequent creditors (Babbitt v. Kelley, 96 Mo. App. 1. c. 534; R. S. 1909, sec. 2861), and is good against prior creditors where possession of the property' is taken before such creditors fix a lien thereon. [Landis v. McDonald, 88 Mo. App. 335.]

II.

The second question concerns the character of the transaction between the father and son, as judged by the law of this State defining fraudulent conveyance and valid preferences of creditors, for if the deed from the son to his father was fraudulently contrived it may be set aside for that reason, although not amenable to the provision of the Bankrupt Act.

The law is well settled, that an insolvent debtor has the right to prefer, in payment of his debts, one creditor over another, provided the payment is made and received in good faith and not with intent to hinder, delay, or defraud any other creditor, except so far as that might necessarily happen, by the mere act of paying in full the just debt of the preferred creditor. [Growney v. Lowe, 234 Mo. 689; Cole v. Cole, 231 Mo. 1. c. 260, and cases cited.]

The facts and circumstances in this case showed that the property was conveyed for its reasonable value and to discharge an honest indebtedness, and they further show that neither party to the transaction had any purpose, by its accomplishment, to defraud any other creditor of the grantor. It was not therefore in contravention of the Statute of Frauds. [R. S. 1909, sec. 2881.] c

The judgment of the circuit court is affirmed.

Woodson, P. J., Lamm and Graves, JJ., concur.


author: BROWN. C.

text:
    HENRY C. SPRAGUE, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    June 28, 1913.

    1. NEGLIGENCE: Performance of Municipal Duty: Reasonable Care. The city is not answerable in damages for the negligent acts of its officers and servants in the use of a hose for washing out its sewers where that duty is imposed by law for the health and general welfare of the community; yet that fact does not relieve the city of the duty to use reasonable care to maintain its streets in a reasonably safe condition for public travel. The city is no more excusable, in a suit against it by a traveler on its streets for damages for personal injuries, for creating and maintaining a dangerous condition of its streets, when such condition is induced by its own act in the performance of a public .duty, than if it were due to any other cause.
    2. -: -: Concurrent Right. The duty of the city to maintain its streets in a reasonably safe condition contemplates their reasonable concurrent use for all those purposes for which the law devotes them. " The knowledge of these uses is imputed alike to all, from which it follows that each is expected to enjoy them with reasonable regard for the rights of others-Reasonable prudence is the only safeguard in their enjoyment by all alike.

      3. -: -:-: Hose on Sidewalk: Flushing Sewer: Injury to Pedestrian. The city is not liable to a pedestrian on a wide sidewalk, who, after waiting eight or ten minutes in the shade of a building, on a hot day, without looking and wholly oblivious to his immediate surroundings, walked toward a street car, and, forty feet from the next cross street, stumbled over a four-inch hose, placed on the sidewalk ten inches from the curb, and connected with a fire-plug, by the city’s servants, for the purpose of performing the necessary municipal duty of flushing out inlets into the sewer, and lying there and being used for about twenty minutes when he fell over it into the street and was injured, it being established by his own witnesses that the hose was laid on the sidewalk, instead of in the street, to prevent it being trampled and run over by vehicles,
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Affirmed.

      Jones, Jones, Hooker & Davis and Thomas R. Sprinkle for appellant.
    (1) The court erred in giving defendant’s instruction in the nature of a demurrer to the evidence, for the reason that there was sufficient evidence for the case to go to the jury; and it was error in declaring as a matter of law the plaintiff could not recover, Graney v. St. Louis, 141 Mo. 180 ; Lattimore v. Union E. L. & P. Co., 128 Mo. App. 37; Beck v. Brewing Co., 167 Mo. 199; Perrigo v. St. Louis, 185 Mo. 274; Frank© v. St. Louis, 110 Mo. 516; Carrington v. St. Louis, 89 Mo. 209; Dillon Mun. Corp. (3 Ed.), sec. 988; Loewer v. Sedalia, 79 Mo. 444; Mans v. Springfield, 101 Mo. 618; Flynn v. Neosho, 114 Mo. 572. (2) The judgment is for the wrong party, for the reason there was evidence of negligence on the part of defendant in allowing said hose to he stretched on a crowded public sidewalk unguarded and with nothing to notify the passers-by of its presence. Lattimore v. Union E. L. & P. Co., 128 Mo. App. 37; Purette v. Kansas, City, 162 Mo. 238; McCormack v. Monroe, 64 Mo. App. 196; Burnes v. St. Joseph, 91 Mo. App. 489; Powers y. St. Joseph, 91 Mo. App. 65; Matthews v. Cedar Rapids, 80 Iowa, 459; Coffey v. Carthage, 186 Mo. 573; Barr v. Kansas City, 105 Mo. 550.
    .. Lambert E. Walther and Robert Burkham for respondent.
    (1) The city is not an insurer of the safety of its highways, but is liable only for negligence. Carvin y. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Warren v. Independence, 153 Mo. 593. (2) The hose against which appellant fell was not an unlawful obstruction, for: (a) A municipality is not liable for injuries received by a traveler who runs against an obstruction in the highway which has been properly placed there from considerations of public necessity or convenience. Dillon Mun. Corp. (5 Ed.), sec. 1168; Pueschell v. Wire & Iron Wks., 79 Mo. App. 459; Hesselbach v. St. Louis, 179 Mo. 505; Seibert v. Railroad, 188 Mo. 657; Morie v. Transit Co., 116 Mo. App. 12; Atchison v. St. Joseph, 133 Mo. App. 536; Phelan v. Paving Co., 227 Mo. 666; Macomber v. Taunton, 100 Mass. 255; Ring v. Cohoes, 77 N. Y. 83; Horner v, Philadelphia, 194 Pa. St. 542; Van Wie v. Mt. Vernon, 49 N. Y. Supp. 779; Jordan v/New York, 55 N. Y. Supp. 716; Wolf v. Disk of Col., 196 U. S. 152; Dubois v. Kingston, 102 N. Y. 219; Robert v. Powell, 168 N. Y. 411; Dist. of Col. v: Moulton, 182 U. S. 576. (b) A hose in a^ highway being used for flushing a sewer, in order to protect the public health, is not an unlawful obstruction. Portsmouth v. Lee, 112 Va. 419. (3) The city was not guilty of negligence, for it omitted no reasonable or practicable precaution. Portsmouth v. Lee, 112 Va. 419; Overholt v. Vietks, 93 Mo. 422; Barney v. Railroad, 126 Mo. 372. (4) Appellant was guilty of contributory negligence, ■which was not only the proximate cause, but in fact the sole cause of the injury. Ryan v. Kansas City, 232 Mo. 471; Woodson v. Railroad, 224 Mo. 685; Coffey v. Carthage, 186 Mo. 573; Kaiser v. St. Louis, 185 Mo. 366; Wheat v. St. Louis, 179 Mo. 572; Diamond v. Kansas City, 120 Mo. App. 185.
   BROWN. C.

This is an action for damages on account of personal injuries suffered by plaintiff on July 24, 1907, by falling over a hose on Broadway near Locust street in the city ** of St. Louis. The hose was placed there by the employees of the sewer department of the city.

At the close of the plaintiff’s case the court instructed the jury to find for the defendant. ■

Broadway, a street running north and south, is intersected by Locust street, which runs east and west. This locality was, at the time of the accident, one of the busy retail districts in the city. At the .southwest corner is the Mercantile Library building, the first second and third floors of which were occupied by the Scruggs, Vandervoort, Barney Dry Groods Co. The Broadway cars run along that street, and the Olive street cars come west on Locust street and run south past this block to Olive street. These lines transfer at that corner. The sidewalk along' Broadway at that point is about fifteen feet wide, constructed of concrete. The curb stands about ten inches above the gutter.

At the southwest corner of Broadway and Locust streets there were two inlets connecting with the sewer, which were required by the Board of Health to be flushed from time to time through these openings to keep the sediment from accumulating to such •an extent as to overflow them. The necessity for this work is expressly admitted in the record. In the west side of Broadway immediately inside the curb, and about one hundred and twenty feet south of the south property line of Locust street, was a fire plug from which the water was taken by a two-and-a-quarter-inch hose three inches in external diameter, to the sewer openings referred to, for flushing purposes. Whenever this work -was done the hose was attached to the fire plug and laid along the edge of the walk, about ten inches from the curb, to the corner, where the stream was run into the sewer. The hose was always laid in this position to protect it from being trampled and run over by vehicles, which was not only liable to injure it, but also to injure people who might be near it. The flushing of the sewer at this point occupied about twenty minués, and was in progress and nearly finished at about eleven o’clock a. m., July 24, 1907, a clear day, with the thermometer standing at about ninety degrees, when Mr. Sprague got off the Broadway car at the corner, for the purpose of transferring to an Olive street car. He walked south, he thinks, about thirty-five feet, until he came to a place in front of the Scruggs store, where there was about two and a half feet of shade, and stood there waiting for his car going south. He does not remember stepping over the hose when he got off the car, although if it were laid at the time he could not have reached the place where he waited without doing so; nor did he see anybody laying the hose. In fact he was oblivious that there was any such thing in existence. The sidewalk was well crowded with people, and a number of vehicles passed along while he stood there. After he had waited from eight to ten minutes the Olive street car turned into Broadway, and, with eyes and mind “centered” on it, he started across the sidewalk in a northeasterly direction, when his foot came in contract with the hose and he fell forward over the curb into the driveway, and was seriously injured by the fall. One of his witnesses measured the distance from the place where he fell to the south property line of Locust street, and found it about forty-seven feet. ,

The propriety of the court’s direction for .the defendant is the matter in issue in this appeal.

The plaintiff was injured by stumbling over a water hose which the city was using' at the time for washing one of its sewers. This was a public duty imposed by law for the health and general welfare of the community. It was also one of those uses to which the public streets are dedicated. While it is well settled in this State that the municipal corporation is not answerable in damages for the negligent acts of its officers and servants in the exercise of powers of this character (Ulrich v. St. Louis, 112 Mo. 138, and cases cited; Cassidy v. St. Joseph, 247 Mo. 197, and cases cited), yet this does not relieve the •city from the duty to use reasonable care to maintain its streets in a reasonably safe condition for public travel. It is no more excusable for creating or maintaining a dangerous condition of its streets when such condition is induced by its own act in the performance -of a purely public or discretionary duty than if it were due to any other cause. It makes no difference whether the defect be caused by the passage of a hose cart on its way to extingish a fire, or by the dray of a transfer company hauling a load of goods for a merchant. In either case the same duty rests upon it with respect to the condition produced.

No question is made of the right, nor of the duty of the city, to conduct the water through this same hose from the fire plug to which it was attached, over the street which afforded the only aceess, to the intake where the stream was discharging into the sewer. It is only claimed that the hose was laid in a place that was unlawful, becau.se unnecessarily dangerous to those using the sidewalk for the purpose of travel, for which it was primarily designed. The operation was a temporary one, to continue only twenty minutes and the hose was carefully placed along the edge of the sidewalk, leaving ample i"oom so far as the evidence shows or suggests, for the passage of pedestrians in the usual way, and the presumption is that the officers or employees having-charge of it did their duty properly, to the extent that it devolves upop the plaintiff to show that men of ordinary prudence, mindful of their duty, would have placed it somewhere or somehow different from the plan they did adopt. The appellant accepts this burden, and complains that it was not placed outside the curb in the driveway. Although his witness, the man who had charge of the work, testified that his plan was considered and rejected on account of its danger to both persons and property, he points to the thing itself, the situation and the accident, and says that it warns us louder and more eloquently than spoken words that, as we avoid the voracious mouths of Scylla we are legally bound to think of Charybdis,. crouching in her lair under the shade "of her gigantic fig tree, or, rather, of the Scruggs store, and expect her nomentarily to emerge into the bright sunlight,, her head in the air and her mind fixed on the savory crew of the street car, and stumble off the curb into the street. "We are to expect all this, the appellant insists, although the place was not at nor' even near a crossing where people are expected and invited to pass from the sidewalk into the street, and we are not to think for a moment that a person so preoccupied as to scorn to look where his steps were leading would probably have fallen into the gutter when* he came to it, whether- the hose had been there or not.

The duty of the city to maintain its streets in a reasonably safe condition, contemplates their reasonable concurrent use for all those purposes wkich the law devotes them. The knowledge of these uses is imputed alike to all.. from which it follows that each is expected to enjoy them with reasonable regard for the rights of the others. The facilities are offered so freely and simply that reasonable prudence is the only safeguard required in their enjoyment by all alike, and their mutual rights are built upon this foundation. Applying this ruje we cannot imagine in what way the rights of defendant were disturbed by the use of the street by the city exactly as it was being used at the time of this, accident.

We have followed the appellant faithfully through his briefs to find some case which questions the conclusion we have stated and which seems to us inevitable, but without success. We have also examined all the cases cited by respondent to ascertain whether it might not have been questioned so seriously as to have-been presented for the decision of some court, with the-same naked simplicity with which it is presented here, but have found no instance. The nearest approach to-similarity is in Portsmouth v. Lee, 112 Va. 419, but in that case the facts were such that the court was not asked to go as far as we are asked to go to overturn the judgment of the circuit court in this case. The judgment of the circuit court is affirmed.

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

All the judges concur.


author: BLAIR, C.

text:
    JOHN M. HEADY et al., Appellants, v. GEORGE W. HOLLMAN et al.
    Division One,
    June 28, 1913.
    1. VENDOR: Assertion of Title in Good Faith: Not Fraud: Breach of Warranty. A vendor’s assertion of title made in good faith does not constitute a fraud. Otherwise every breach of warranty would be attended with fraud, and the rule that a vendee in possession under covenants of warranty from a solvent, resident grantor is in the absence of fraud remitted to his covenants for relief would be a palpable absurdity.
    2. EQUITY: Rescission of Sale: Insolvency of Grantor. In a suit by a purchaser to rescind an executed sale of realty the insolvency of the grantor is not an independent ground of relief, but merely a circumstance negativing the adequacy of the grantee’s remedy at law on the covenants in his deed, and therefore, -in a proper case, warranting equitable interposition in circumstances in which, but for such interposition, irreparable loss would result.
    3. -: -: -: After-born Children: Stay or Abatement of Payment. A purchaser of realty, who, having been advised by his attorney before the sale that after-born children of A would come in as remaindermen, agreed nevertheless “to take chances” on that happening and closed the sale, cannot make that possibility a ground of rescission, and, no such child having been born, no actual loss has occurred, and the mere possibility of loss through such an event does not entitle him to a stay of payment or abatement pro tanto of the purchase price, even though his warrantor be conceded to be insolvent.

      4. REMAINDER: To Heirs of Living: Vested. In case of limitation to one with remainder to the heirs of another who is still living, if the context shows that the term is used in a popular and not technical sense, meaning the children of a living person, the term is regarded as a clescriptio personae; and whoever answers thereto, if living, may take the remainder as a vested one.
    b. DEED: Construction: Intent of Maker. In deeds, as in wills, the intent of the maker is the object of all construction, and that intent is to be gathered from a consideration of the whole instrument.
    •6. -: Vested Estates Favored by Law. The law favors vested estates, and the rule is that estates shall be held to vest at the earliest possible period, unless a contrary intention is clearly manifested in the grant.

      7. -: Remainder to “Children and Heirs at Law:” Construction. A deed conveyed land to B and C “for and during their natural life, the survivor for and during her natural life, and then unto the children and heirs at law of A, their heirs and assigns forever.- The said B is not to be regarded as a child or heir at law of said A,” etc. Held, that the children of A took a vested remainder at the time of the execution and delivery of the deed, which remainder will open to let in after-born children of A.
    Appeal from Greene Circuit Court. — Hon. George W. Goad, Special Judge.
    Affirmed.

      Hamlin & Seaivell for appellants.
    The title was defective and the grantors being insolvent authorized the relief demanded by appellants. Rozier v. Graham, 146 Mo. 352; Doener v. Doener, 161 Mo. 399; Emmerson v. Hughes, 110 Mo. 627; Wad-dell v. Waddell, 99 Mo. 338; Dennison v. Keasby, 200 Mo. 412; Bruce v. Wolfe, 102 Mo. App. 384; Coleman v. Clark, 80 Mo. App. 339; Eagan v. Martin, 81 Mo. App. 676; Thompson v. Dickson, 68 Mo. App. 535; Whiteside v. Magender, 75 Mo. App. 364; Florida v. Morrison, 44 Mo. App. 364; Williamson v. Hall, 62 Mo. 406; Kellog v. Manlin, 50 Mo. 502; Reppy v. Reppy, 46 Mo. 571; Field v. Oliver, 43 Mo. 200; Paris v. Haley, 61 Mo. 453; Luthy v. Woods, 1 Mo, App. 167; Fox v. Hubbard, 79 Mo. 390.

      V. O. Goltrane for respondents.
    (1) Plaintiffs charge the defendant, Geo. W. Hollman, with fraud in selling their two lots, the title to one of which they claim is imperfect. In order to entitle the plaintiffs to recover, this charge must be sustained by the clearest proof. It is not sufficient for plaintiffs to show a failure of title, but they must go further and show that some deceit was practiced for the purpose of putting them off their guard, or that special confidence was reposed in representations by defendant that were fraudulent, and that the agreement was entered into upon the strength of such confidence. Langdon v. Greene, 49 Mo. 363; Hart v. Railroad, 65 Mo. 509. (2) The title to lot 42 is not imperfect. The deed from the Ideal Real Estate and Abstract Company vested the remainder in the* “children and heirs at law of George W. Hollman,” living at the time of the execution of the deed, as • a class. No contingency is possible except that another child, or children, may be born unto George W. Hollman, and that risk plaintiffs admit they agreed to assume. Waddell v. Waddell, 99 Mo. 338; Rothwell v. Jamison, 147 Mo. 614.
   BLAIR, C.

This is a suit by the purchaser to rescind an executed sale of realty. The petition contains an alternative prayer for damages and a pro tanrt0 abatement of the purchase price. Allegations of fraud, misrepresentation of the title and insolvency of the warrantor are relied upon to confer jurisdiction in equity. There is also a prayer for the cancellation of a deed of trust executed by appellants to secure part of the purchase money, injunctive relief against its •enforcement during the pendency of the suit also being invoked.

The evidence shows that a preliminary contract was executed whereby George W. Hollman agreed, in consideration of $2900, to be paid to him, to “convey and assure to J. M. Heady, in fee simple, clear of all incumbrance whatever, by a good and sufficient warranty deed and abstract of title” lots 41 and 42 in the First Inside Addition to Springfield, Missouri. The title to lot 42 was not in Hollman but, for a consideration paid, in part at least, by him, had been conveyed by a former owner to Nellie E. Hollman/' his daughter, and Annie I. Maxfield “for and during their natural life, the survivor for and during her natural life, and then unto the children and heirs at law of George W. Plollman, their heirs and assigns forever. The said Nellie E. Hollman is not to be regarded as a child or heir at law within the provisions of this deed of said George W. Hollman. And the said Ideal Real Estate and Abstract Company hereby covenants to and with the said Nellie E. Hollman, Annie I. Max-field and children of George W. Hollman, and their heirs and assigns of said children . . . that the title of the premises aforesaid unto them, the said Nellie E. Hollman, Annie I. Maxfield and children of George W. Hollman and heirs and assigns of said children it will forever warrant and defend,- except,” etc. When this deed was made Hollman had six living-children, one of whom was Nellie E. Hollman, and all of whom were living at the time of the trial. Some of them had children but they and their children constituted all the living descendants of George W. Hollman. Annie I. Maxfield, George W. Hollman and five of George W. Hollman’s children conveyed to the sixth, Nellie E. Hollman, and she executed a warranty deed to plaintiffs for lot 42. This evidently accorded with the understanding of the parties, and no complaint was or is made because George W. Hollman was not a party to this deed.

Heady, who conducted all the negotiations for the purchase, testified that after the • abstract was submitted his attorney examined it and told him, in George W. Plollman’s presence, that “the title was good except one defect;” that, under the deed quoted from above, in case another child was born to Hollman it would “come in for its part later on.” This ■defect plaintiff testifies he thereupon “agreed to take chances on” and the trade was closed. Instead of paying the full purchase price in cash, however, Heady paid $1500, and he and his wife executed a deed of trust -on lots 41 and 42 to secure a balance of $1400. Tbe note thus secured was assigned by Hollman to defendant bank, and tbe bank was proceeding to sell under the deed of trust when this suit was instituted.

There was no evidence Hollman actually misrepresented the title in any way, and the weight of the evidence is that he owned real property, subject to execution, to a value somewhat exceeding the entire value of lot 42. Heady was asked by his counsel whether Nellie E. Hollman (now Hatfield) was solvent, and answered: “Well, no, sir; she is not, to the best of my knowledge.” This was all the evidence respecting her solvency.

I. The evidence does not suggest bad faith or concealment, and the only representations as to the title are found in the contract of sale and the deed of conveyance. This is an ex-v ecuted contract and the vendee is in possession. If it be conceded the title is defective, yet a vendor’s assertion of title made in good faith does not constitute fraud. Otherwise “every breach of warranty must be attended with- fraud” (Mitchell v. McMullen, 59 Mo. 1. c. 257), and the rule that a vendee in possession under covenants of warranty from a solvent, resident grantor is in the absence of fraud remitted to his covenants for relief would be a palpable absurdity. The question is settled. [Herman v. Hall, 140 Mo. 1. c. 276; Crumb v. Wright, 97 Mo. 1. c. 19; Hart v. Railroad, 65 Mo. 509.]

II. The insolvency of a grantor in a case of this kind is not, of course, an independent ground of relief but merely a circumstance negativing the adequacy of the grantee’s remedy at law on the covenants in his deed, and, therefore, in a proper case, warranting equitable interposition in circumstances in which, but for such interposition, irreparable loss would result. [Swain v. Burnley & Street, 1 Mo. 1. c. 405.] If it be conceded tbe evidence sufficiently shows insolvency, the question in the case is whether there was an actual or impending loss against which equity will grant relief.

Advised by his attorney that after-born children of George W. Hollman would come in as remaindermen in lot 42, Heady, nevertheless, agreed “to take chances on” that happening and closed the sale. He cannot now make that possibility a ground of rescission, and, no such child having been born, no actual loss has occurred, and the mere possibility of loss through such an event does not entitle him to a stay of payment or abatement, pro tanto, of the purchase price on that ground, even though his warrantor be conceded to be insolvent. [Barton’s Admr. v. Rector, 7 Mo. 1. c. 528, 529; Rawlins v. Timberlake, 6 T. B. Monroe, 1. c. 232, 233; Fletcher v. Wilson, Sm. & M. Ch. 1. c. 389; Perkins v. Williams, 5 Cold. 1. c. 513, 514; Whitbeck v. Cook, 15 Johns, 483; Farber v. Blubaker Coal Co., 216 Pa. St. 1. c. 214; Whitworth v. Stuckey, 1 Rich. Eq. 1. c. 410.]

Counsel seemingly concede the correctness of this rule, and their real contention is that under the deed partially set out above the remainder'to “the children and heirs at law” of George W. Hollman, is contingent, whereas all the “chances” Heady agreed to take were such as would be those consequent upon the existence, under the deed, of 'a vested remainder in Hollman ’s children as a, class.

It is conceded, of course, that if the grant had been to the named life tenants, remainder to the chil•dren of George W. Hollman, the remainder would have been vested; but it is contended that the words “the ■children and heirs at law of George W. Hollman” embrace two classes, i. e. (1) children and (2) heirs at law; that each of these classes takes a one-half inter•est in remainder and, since the living have no heirs, as to one-half the fee after the life estate the remainder is contingent; that the children might, by surviving their father, also take as heirs bnt their deeds executed before the life estate has fallen in would not convey their interests as such. So runs the argument.

It is well settled that in a case of limitation to one with remainder to the heirs of another who is still living (as in this case) if “the context shows that the term is used in a popular and not technical sense, meaning the children of a living person . . . the term is regarded as a descriptio personae; and whoever answers thereto, if living, may take the remainder as a vested one.” [2 Washburn on Real Property (6 Ed.), sec. 1565; Fanning v. Doan, 128 Mo. 1. c. 329.] It is argued, however, that the use in the deed of both the terms, “children” and ' “heirs at law,” necessarily discloses an intent to use them in different senses. In deeds as in wills the intent of the maker is the object of all construction (Tindall v. Tindall, 167 Mo. 1. c. 224), and that intent is to be gathered from a consideration of the whole instrument. [Roberts v. Crume, 173 Mo. 1. c. 579, 580.]

It is to be kept in mind also, that “the law favors vested estates and the rule is that estates shall be held to vest at the earliest possible period unless a contrary intention is clearly manifest in the grant.” [Tindall v. Tindall, supra, 1. c. 225; 2 Washurn on Real Property (5 Ed.), sec. 1544.]

In the case of Waddell v. Waddell, 99 Mo. 338, the grant was to John J. Waddell for life “and on the death of said John J. Waddell, the title, in fee simple, to go and vest in the children and heirs at law of the said John J. Waddell, equally, to be divided between them as tenants in common.”

This court in that case held: “The words ‘children and heirs at law’ as used in the deed must be construed as constituting a class,” and that the remainder vested in the chil- ^ time of the execution and delivery of the deed but that such remainder would open and let in such of the class as might come into existence during the existence of the particular estate, i. e., that “all of the children of John J. Wad-dell, whether living at the time of the execution of the deed or born subsequently thereto, were equal sharers in the land conveyed . . . and took thereby a vested estate in remainder.”

In the instant case an examination of the deed in question in the light of that decision and the principles above stated reveals ample reason for the conclusion that the word “children” and the words “heirs at law,” as employed therein, are used as synonyms and the whole intended to designate the children of George W. Hollman as remaindermen. While the first designation of the remaindermen is “the children and heirs at law” of Hollman, yet the covenants of warranty run only to the children of Hollman, their heirs and assigns. In view of the fact that this deed was executed by a stranger for a valuable consideration paid, at least in part, by George W. Hollman, the omission of covenants of warranty to the “heirs at law” of George W. Hollman is difficult of explanation if, as contended, the words “heirs at law,” were intended to designate a class of beneficiaries in remainder separate and distinct from the “children” of George W. Hollman. Further, the deed excludes Nellie E. Hollman from participation in the remainder, and the language employed for that purpose is that she “is not to be regarded as a child or heir at law within the provisions of this deed of George W. Hollman.” If the hypothesis that “children” and “heirs at law” designate distinct classes of beneficiaries be accepted, then the exclusion of Nellie E. Hollman would have been fully accomplished by language excluding her from participating as one of George W. Hollman’s “children.” The use of the words “or heirs at law” in the clause excluding her is without meaning except on the theory that the word “children” and the words “heirs at law” had been employed as synonymous and were repeated in the same sense. This is true unless the deed be interpreted to mean that the children living at the time of the execution and delivery of the deed were to take as members of the class “children” and, in case they survived the life tenants, were again to take an additional distinct interest as “heirs at law.” This construction of the deed would be productive of such singular consequences that only clear language could induce its adoption. The context clearly warrants, in this case, the same conclusion reached in Waddell v. Waddell, supra.

Something is said as to the effect of the word “then” introducing the phrase designating the remaindermen. It, or an equivalent expression, is usually employed in a grant of this kind and the effect is to denote the time when the remaindermen are to have possession, not to postpone the vesting of their interests. [Rodney v. Landau, 104 Mo. 1. c. 258; Bowers v. Porter, 21 Mass. 1. c. 210.]

Prom these considerations and the favor with which the law regards the vesting of estates it follows, as in the Waddell case, that the children of George W. Hollman took a vested remainder at the time of the execution and delivery of the deed in question, which remainder will open to let in after-born children of Hollman; that the interests of all living children have been acquired (so it is conceded) by appellants and, as to children hereafter born appellants have no right to equitable relief in view of tbe agreement discussed In a preceding portion of this paragraph.

Tbe judgment is affirmed. Brown, C., concurs. •

PER CURIAM. — Tbe foregoing opinion of Blair, O., is adopted as tbe opinion of tbe court.

All of tbe judges concur, except Bond, J., wbo tabes no part.