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know that 157 had started. A. Yes, sir; they track? A. Yes, sir; that engine was standing whistled off, and was supposed to start. I still; after I stepped over the rails to cross it, heard them working steam. Q. After you said, she was still standing, but she moved immedi“What?' and the fireman said that Moore was ately after I started across. Q. How far would signaling to back up and you looked and saw you judge you had got away from the engine, Moore signaling to back up and Tighe throwing from where the engine was, when it stopped still, the switch, did you understand that you were and you turned around the corner of the tank . to cross that switch before 157 could get to it? when it hit you. A. How far was I from the a. I understood that's what they meant for back of the tank? Q. Yes, sir; how far do you me to do. Q. Did that require you to act say it had moved ? A. Well, maybe it might promptly and quickly? A. Well, yes, it did, to have been from here to that gentleman, the a certain extent. Q. How wide open did you second man here. I don't know; I just stepped open the throttle? A. Well, I could not say over and across, out, you know. Q. Well, give about that. Q. Did you try to make a quick your best judgment of it in feet? A. Well, I run for that switch? A. Ordinarily. If it should say 5-not more than 10 feet, anyhow. hadn't looked safe I wouldn't have started. Q. Q. You may state whether or not any whistle How long after Ostertag got off the engine be- was blown or bell rung? A. No, sir; God fore you started back? A. Well, it didn't seem knows. Q. What injuries did you receive there to me more than a minute. It might bave been at the time, Mr. Ostertag? A. Well, I lost a little longer, and it might have been not any this limb, 543 inches from the bip joint, bruised more. Q. How far did you run altogether on this eye here, this left eye; this right hip was that last movement? A. Well, in my judgment bruised clear down to the ankle and back; it I didn't run over three engine lengths from the is skinned; the watch here ran into my side; time I started till I stopped. Q. What is about there is the dent in it yet. I carried that watch the length of the engine? A. Of that engine? right here; it ran this watch stem into my I suppose it was about probably maybe between side, and part of the chain I had on it." Q. 40 and 50 feet, the engine and tank. When we You feel that foot, you mean the foot that is speak about the engine we mean the tank and gone? A. Yes, sir, feel the natural leg, the toes all. Q. That's what I mean. Where was Os down here, it hurts sometimes, feels like a tertag after you stopped? A. Ostertag was at great wheel standing on the toes, or something. the front end of the engine."

Q. Now, how does the limb bother you now, in

what way? A. Well, from walking around, He testified that the fireman pulled the bell you know, it gets sore, and I can't stoop over; when he started to back up.

you see, I can't bend; I have to stand stiff like; E. C. Allison, fireman of 1241 testified that if I want to stoop over, you know, it sets right up he did not ring the bell before they started, in the crutch, you know, it is hard on me in the

summer time, especially hot weather. Q. What but just as they started.

difference does the summertime make? A. The All witnesses, except the above two and the heat, you know, and perspiration, sweat a good plaintiff, testified that they could not say deal, kind of chafes it, and it takes a long time, whether the bell was rung.

you know, to get a stump bealed up, to get it good

and solid and get used to it.” Q. Then you may Plaintiff testified:

answer directly the question whether or not "Well, we had been down to the freight house that limb has ever been free from pain since this and set a freezer on 542, and we came back up accident? A. No, sir." No. 5, backing up, understand, working that engine 1241; when they were getting up towards

He testified that the engines were operated the bead end of this 57, she made up on 4 along-on signals; that he was familiar with the side of us, and while we was beading up towards rules of the company and with the signals; the head end of this train, she had whistled that the employés were supposed to look out off; we had run up on the frog and stopped. I was up in the cab all this time, got in the for the signals; that the switch engines have cab when we were leaving the freight bouse plat- no schedule time; and that there is danger form, cut the car off and put a block under it so from their moving back and forth. He also it would not run off, climbed up in the cab, testified that he did not see the signal given and rode up, standing up there with the engineer and fireman. Well, this train had whis- to 1241 to back up; that he was not looking tled off when we ran up on this frog, and some for it, but was looking where he was going. body told us to get in the clear, I couldn't say

C. A. Moore, a witness for defendant, teswho it was, but I heard somebody say "Get in the clear;' the engine ran in the clear, ran

tified as follows: down probably opposite the road engine, at that "Q. Now, what conversation, if any, did you time she was starting to move, you know, so have with Mr. Shull up there in regard to the just as he stopped in the clear I got down on movements of your train and movements of the left side of the gangway, got out of the cab, 157? A. Why, I asked him if we had time to you know, the back of the cab, got down on the go out ahead of 157, or something to that efleft side, I walked back between this moving fect, or I remarked to him that we had time train, and our engine was standing still here, on to go ahead of them, and he said yes, we had. the left side of me, this train was pulling out Q. Had you seen at that time, Mr. Detwiler; along on the north side, on my right, and I where was he at that time, do you remember; was heading west; just after I was walking did you see him? A. He came out of the office along here, the side of our tank, I was watch- as Mr. Shull and I were talking, with his bills ing this train, too, you know; she was under in his hand, and when I got through telling Mr. motion; this engine of ours was standing still, Shull about this, about the time I made the reI got to the back of the tank of our engine, I mark I says 'Is 157 ready to go?' stepped across with this foot over the north rail, Yes, just about.' 'Well,' I says, 'We can get cot diagonally across, going up to the shanty, out ahead of them.' He says, 'Yes, come ahead,' customary to go up there, you know, when the so I just turned and gave my man a sign to back engine is idle, and the foreman was up there-up. Q. Now, just state to the jury whether yes, he was up there-so just as I stepped be- you could tell from where you were at that hind the tank this way, about to cross this time; you could tell, now, where Mr. Ostertag way, the engine hit me in the back, knocked me was at that time, if you know? A. No, I down, and that is all I know. Q.' Was engine could not tell just exactly where he was at; 1241 stationary at the time you passed behind he was near the tender of the engine. Q. And

He says,


When I gave my back-up signal? Q. Yes. A. I train.” The defendant's witness Moore testiYes, sir."

fied that it was not customary for switch enTwo days after the injury, Mr. Taylor, rep- gines to answer signals with the whistle. resenting the defendant, called to see plain Among the instructions the court gave the tiff at the hospital, and plaintiff signed a jury the following for the plaintiff: statement at Mr. Taylor's request, stating, “(A) If from the evidence you find that on among other things, that plaintiff could not or about the 7th day of June, 1910, while plainsay whether the bell was ringing when he a switching crew in charge of and operating a

tiff was in defendant's employ as a member of was struck, as there was so much noise. switch engine of the defendant in the course of Plaintiff was at that time under the influence its business, he was, without negligence upon his more or less of an opiate. That statement part, struck and injured by said switch engine, was read in evidence by the defendant. The negligence, if any, of any of defendant's serv.

and that he was so struck by reason of the . plaintiff read in evidence, over the objection ants in charge of such, engine or in control of of defendant, a rule of defendant providing its movements in causing such engine to move for two short whistles in answer to any without warning, your verdict should be for the

backward against the plaintiff suddenly and signal not otherwise provided for. During plaintiff.

By 'negligence' used above is plaintiff's examination in chief the follow- meant the want of such care as persons of oring occurred:

dinary prudence should be expected to use under "Q. You may state whether there was any

the same or similar circumstances." custom in that yard at that time and previous And the following for the defendant: to that time-I mean the time of your injuryas to any signal other than the bell from the not negligence of itself for defendant to move

"(1) The court instructs the jury that it was engineer when he gets a signal to start to work engine 1241 over track 5, passing the switch again after being laid off or tied up for any connecting track 4 and track 5, ahead of train time, is there or is there not or was there or 157, at the time and place described in evidence, was there not, such a custom? A. Yes, sir. and you cannot find for plaintiff on that issue. (Defendant's counsel objected as incompetent, irrelevant, and immaterial, because not pleaded, not' negligence of itself for Foreman Moore to

“(2) The court instructs the jury that it was and asking for the conclusion of the witness, give a signal to engine 1241 to come ahead of and asking him to pass upon wbat is the custom, train 157 at the time and place mentioned in assuming facts not proven. The court over: evidence, and you cannot find for plaintiff on ruled the objection, to which ruling of the court

that issue. defendant then and there duly excepted.) Q.

“(3) The court instructs the jury that there What was the custom, Mr. Ostertag? (De. fendant's counsel objected to the

question for the is no evidence in this case showing that the reason that the witness is not shown competent, in a situation of peril after he stepped onto the

agents and servants of defendant saw plaintiff not shown there was any custom, and not with track in front of switch engine 1241, in time in the issues of the pleadings. The court overruled the objection, to which ruling of the court and avoided injuring the plaintiff, and you will

to have stopped said engine after it was started defendant then and there duly excepted.) What was the custom? A. Well, if the engine therefore find for defendant on that issue.” was standing there, and we all had been up to

And refused to give other instructions askthe shanty, say, for instance, we come down. ed by defendant, among which are the folwith that engine, and the foreman or I, or anybody would give them a signal, he did acknowl- lowing: edge the signal by giving two short blasts "(4) The court instructs you that under the of the whistle, 'Choo, choo,' answer he got law of Kansas, read in evidence, it was not negyour signal, lots of times. Q. Was it customary ligence for defendant's employés to move said all the time? (Defendant moved to strike out engine over track 5, ahead of train 157 on the preceding answer for the same reasons last track 4, as detailed by the evidence, and you above stated; it being a mere conclusion of the cannot find defendant guilty of negligence in witness. The court overruled the motion to so running engine 1241 at the time and place strike out, to which ruling of the court defend- described in evidence. ant then and there duly excepted.) A. And oth “(5) The court instructs you that the rule of er days when they all go to work he will ac- defendant, read in evidence, that ‘all employés knowledge the foreman's signal and mine, if I are further warned that they must not rely on give any, two short blasts of the whistle. (De- others to notify them of the approach of a train' fendant's counsel moved to strike all that out did not require the engineer of 1241, to give for the reasons last above stated. The court plaintiff any warning just before starting said overruled the motion, to which ruling of the engine, in the absence of knowledge of said encourt defendant then and there duly excepted.)" gineer that plaintiff was in the act of going

The plaintiff pleaded and proved a statute upon said track at said time.” of Kansas providing that a servant may re Plaintiff's counsel in his opening state. cover against the master for the negligence ment to the jury, said that plaintiff was with of a fellow servant upon the giving of a Dewey at Manila Bay, to which counsel for notice not necessary here to be stated. De- defendant objected, when the following ocfendant read in evidence a statute of Kansas curred: adopting the common law as modified by the

“Mr. Guthrie: I mean he was a sailor in the Constitution, statutes, decisions of the courts, United States Navy. etc., also the case of Dyerson v. Railroad, as

"Mr. Watson: I objeot to that as incompereported in 74 Kan. page 528, 87 Pac. 680, 7

tent, irrelevant, and immaterial.

“The Court: It don't make any difference L. R. A. (N. S.) 132, 11 Ann. Cas. 207. De- what his employment has been at other times. fendant read in evidence a rule of the com- It might be a matter of argument when you pany providing that “all employés are fur. come to argue the case.

"Mr. Guthrie: I will explain, your honor, ther warned that they must not rely on oth- because I want to keep within the line; the ers to notify them of the approach of a theory upon which I am making these sugges


tions as to his early experience is that his past "Mr. Guthrie: Have I no right to argue that experience has not been such as to qualify him counsel are seeking to mislead the jury? for any form of earning capacity outside of the "The Court: That is not the effect of the way railroad business and the duties of a sailor. you are arguing.

“Mr. Watson: I object to that because no “Mr. Guthrie: I say to you that in my honest euch allegation in the petition, no such issue judgment, and I hope it will meet your convicframed here; it is not competent for any pur- tion, gentlemen, the amount claimed here will pose under the allegations of the petition here. not compensate him for what this has meant to

"Mr. Guthrie: It may be a question of good him. Put yourself in his place. Consider what faith on the part of counsel

. [Reading from pe- it would mean to you, and others similarly sittition] 'was impaired in his earning capacity to uated, and answer that question according to the the entire extent thereof, and his enjoyment of dictates of your honest judgment. life and the exercise of his physical faculties "Mr. Watson: We object to that. was permanently impaired.'

"Judge Douglass: The courts have said a “The Court: That he was with Dewey at Ma- number of times it is a very improper appeal to nila that would not

the jury to put themselves in the place of the "Mr. Guthrie: I apologize to the jury on that plaintiff. We object to it, and now move that particular form of expression.

the jury be discharged. "Mr. Watson: We move that the jury be in. "The Court: Yes, sir, structed to disregard that statement.

"Mr. Guthrie: I said ‘similarly situated.' "Mr. Guthrie : Gentlemen, I apologize to you “The Court: It is objectionable; I would - that his services in the navy included that avoid that." particular item of service.

"Mr. Watson: I object to it, and move that R. W. Blair, of Topeka, Kan., and Watson, the jury be discharged.

“The Court: The jury are instructed to dis-Watson & Alford, of Kansas City, for appelregard those statements which are outside of the lant. Guthrie, Gamble & Street, of Kansas evidence."

City, for respondent. During the argument of Mr. Guthrie for plaintiff to the jury the following occurred: ROY, C. (after stating the facts as above).

"I want to confess to you frankly in this [1] I. Appellant has chosen to present this case that this is a hard case for me to try. case on the theory that the plaintiff stepped Years ago in the little town from which we came, Louis Ostertag and myself went in the on the track in front of a moving engine same swimming hole-he is my boyhood friend without looking or listening for its approach. and as I think of him there, mangled, torn, It put in evidence the case of Dyerson y. Railbruised, his clothing and his flesh strewn along road, 74 Kan. 528, 87 Pac. 680, 7 L. R. A. that rail, his foot hanging to his limb by this battered mass of flesh, as I think, two days aft- (N. S.) 132, 11 Ann. Cas. 207, in support of er that, of this claim agent for this railroad com- that theory. It is enough to say that this pany, that man just coming out of an operation, case does not involve that proposition. It in the condition that you understand was inevitable in this case, that ghoul following around belongs to that class of cases which involves that hospital endeavoring to get that man's the question as to whether an engine in the name to a statement which should damn him in switchyards was suddenly, without warning, the future, when I think of these practices, put in motion under such circumstances as to gentlemen, it is hard

“Mr. Watson: I object to any such language cause an injury to one entitled to such warnas that as incompetent and improper.

ing. The fact that the engine may have "Judge Douglass: We except to that language, started to move just before plaintiff stepped and ask that the jury be instructed to disregard into the place of danger, under the circumit, and the jury be discharged. The Court: I did not hear the statement:

stances of this case, does not transfer this "Mr. Guthrie: I did not even finish the state- case from the latter class to the former. ment."

Here, the plaintiff walked along by the side Mr. Guthrie then proceeded to comment of an engine standing still on the track. He on the fact that the court had modified some was close enough to touch it with his left of defendant's instructions before giving hand. At his right was the engine of the them. Defendant objected, and the court freight which had “whistled off," had been sustained the objection. Mr. Guthrie then given the switch, and, according to the eviproceeded as follows:

dence for the plaintiff, was starting on its "Gentlemen, I say these counsel who are so way; the engines on both tracks, according to easily hurt and shocked in their feelings are some of the witnesses, being only a car's here like the woman of 'bad repute who bates length from the clearing point. What is to have any suggestion made about virtue in her presence, because it hurts, and because they were more, engine 1241 had just cleared the track trying to argue this case to you

for the freight, and plaintiff, as he left the "Judge Douglass: I object to the remark of engine, had said, “Yes, give them a good counsel for the simple reason that he is im- clear.” The circumstances so nearly precludputing improper motives to counsel in the case, ed the thought of starting 1241 over the and there is no testimony before the court or jury to that effect; we except to it, and we switch in front of the freight that the engi. ask now that the jury be discharged from fur neer of 1241, on being told of the signal to ther consideration of this case. "Mr. Guthrie: I do impute improper motives

“back up” said, “What?" The evidence is "The Court: You better stay within the rec- that the engineer made a quick start. The sitord and not wander around these matters out- uation demanded that he should start quickside. "Mr. Guthrie: If your honor please

ly, or not at all. The evidence was such as to "The Court: The attorneys conducted them

make it clearly a question for the jury as to selves along legitimate lines in the trial of whether the plaintiff was guilty of the want

5 as he did, and whether the engine was started without warning in such a way and under | MOSS et al. v. ARDREY et al. (No. 16446.) such circumstances as to constitute negligence (Supreme Court of Missouri. July 2, 1914, on the part of the defendant. This case falls Rehearing Denied July 14, 1914.) clearly within the Tetwiler Case, 242 Mo. 178, 1. HUSBAND AND WIFE (8 14*)-CONVEYANCE 145 S. W. 780, as to the above questions. TO-ESTATE CREATED. II. This suit is not brought under the hu ly creates an estate by the entirety, so that on

A deed to a husband and wife presumptivemanitarian doctrine, and does not involve it the death of one the whole estate vests in the in any way. We shall not discuss the cases survivor. cited on that question.

[Ed. Note. For other cases, see Husband and [2] III. Appellant says that it was error to Wife, Cent. Dig. 88 71-86, 88, 89; Dec. Dig. $

14.*) admit in evidence defendant's rule requiring two short whistles in answer to any signal


BAND AND WIFE. not otherwise provided for. The evidence for

While a court of equity, where a husband defendant was that switch engines in the takes his wife's money, and, along with some of yards were not required to answer signals bis own, pays for land taking title in the name with the whistle. The instructions did not her heirs, decree a resulting trust pursuant to

of the two, will, at the instance of the wife or submit to the jury any fact involving that which she is the absolute owner of sucb prorule. If the admission of such rule in evi- portionate part of the land as was paid for with dence was error it was harmless.

her money, the aid of equity cannot be invoked [3] IV. Plaintiff's counsel were not guilty and thereby deprive the wife or her heirs of

by the husband's heirs to secure such decree, of misconduct in saying what he did as to their right to the whole estate at his death. the statement signed by the plaintiff at the [Ed. Note.-For other cases, see Trusts, Cent. request of defendant's claim agent, and read Dig. $8 115–118; Dec. Dig. $ 81.*] in evidence by the defendant. That statement 3. TRUSTS (88*)-RESULTING TBUST-Eviread in evidence was supposed to be harmful


Extrinsic proof is admissible to show that, to the plaintiff's case. The circumstances un- though the deed was to husband and wife, a der which it was procured were such that we resulting trust was created in the wife's favor shall not say that counsel exceeded the by the purchase of the property by the husband bounds of propriety in discussing that sub- in part with her money.

(Ed. Note.-For other cases, see Trusts, Cent. ject.

Dig. 88 130–133; Dec. Dig. & 88.*] [4] As to the other objections made to the conduct of plaintiff's counsel, it is sufficient In Banc. Appeal from Circuit Court, Pike to say that the defendant did not at the time County; William T. Ragland, Judge. ask that the counsel for plaintiff be reproved Suit by Elzena Moss and others against by the court. The court sustained the ob- Margaret V. Ardrey and others. From a jections, and in one case instructed the jury judgment for plaintiffs, defendants appeal. not to consider counsel's statement. In two Reversed and remanded. instances defendant, by reason of such mis- Schofield & Plowman, of Hannibal, for apconduct, asked that the jury be discharged. pellants. M. L. Farres, of Hannibal, for reThere is nowhere, so far as we know, any au- spondents. thority for discharging the jury for such cause, though we do not now decide that in

GRAVES, J. The petition in this case is no case would such action be proper.

in two counts. By the first count the plain[5] V. Though we have held that the mis- tifi Elzena Moss seeks to set aside for fraud conduct of plaintiff's counsel in his argument and undue influence a certain deed executed to the jury is not reversible error under the by her and others to her father, conveying circumstances of this case, yet we take such the land in dispute. This count, in addition, conduct into consideration in deciding the asks that the court ascertain and determine question of excessive damages, in accordance the title of the several parties in and to the with the rule in Applegate v. Railroad, 252 lands. The second count is an action for the Mo. loc. cit. 202, 158 S. W. 376, and Kinney partition of the land. The case is fully statV. Railroad, 169 S. W. 23, not yet officially ed by the trial court in a finding of facts reported.

incorporated with its judgment. Many of [6] If the plaintiff will, within 10 days, these findings of facts stand admitted in the enter a remittitur of $5,000 as of the date of briefs, but where there is dispute such disthe judgment in the trial court, the judgment pute can be considered in the course of the will be affirmed for $10,000, with interest at opinion. The findings nisi will serve well for 6 per cent. from the date of the judgment in a statement of the case. Such findings are the trial court; otherwise the judgment will as follows: be reversed and the cause remanded.

“The court finds under count No. 1: That

Noah Turley died intestate about the year 1859, WILLIAMS, C., concurs.

leaving surviving him his widow, Christiana

Turley, and their only child, Charity C. TurPER CURIAM. The foregoing opinion is ley, and seised in fee of the following described adopted as the opinion of the court. All the That' at the death of said Noah Turley all of

lands, to wit [described lands in controversy), Judges concur.

said lands descended to said Charity C. Turley, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes subject to the dower right therein of her mother, That in the matter of the execution of said deed the said widow of said Noah Turley, deceased. the said William G. Ardrey did not exercise That thereafter there was duly assigned and set any influence over his children, nor were their out to said widow, Christiana Turley, as and interests in said lands sacrificed, nor did they for her dower in said lands, 63 acres thereof. suffer any loss by reason of such conveyance. That after the death of Noah Turley his said On the contrary, they received a fair and full widow married one Benjamine Milam. That consideration for the interest they conveyed ; in the year 1870 or 1871 said Charity O. Tur their father then being 56 years of age, and the ley married one William G. Ardrey. That value of the curtesy estate being in excess of thereafter, in the year 1873, the said Christi- the value of the remainder interest; and said ana Milam and Benjamine R. Milam, her hus- lands were at the date of said quitclaim deed band, by their general warranty deed of date not worth over $10 per acre. The said transMarch 20, 1973, and duly acknowledged by the action was characterized by fairness, and was grantors in said deed and duly filed for record without any fraud or semblance thereof on the June 2, 1891, in the office of the recorder of part of the said William G. Ardrey. deeds in and for Pike county, Mo., granted and "The court further finds that, of said considconveyed to the said Charity C. Ardrey all of eration paid to said heirs for said lands, sixsaid 63-acre tract. That by reason of such thirteenths thereof, to wit, the sum of $600, the conveyance the said dower interest in said 63- separate money and means of said Margaret V. acre tract and the said remainder interest there- Ardrey, was by her said husband, be having the in of the said Charity C. Ardrey merged, and same in possession at the time, paid to said she became and was the owner in fee of both heirs as part of the purchase price, and not with the said 63-acre tract and the 73-acre tract, con- the written consent of the said Margaret V. stituting together said 136-acre tract. That Ardrey. The fact of such payment was testithere were born to said William G. Ardrey and fied to by the defendant Margaret V. Ardrey as Charity, C. Ardrey, his wife, four children, a witness in the case, testifying therein in be James T. Ardrey, Evelena Ardrey, Elzena Ard- half of plaintiffs, and was conceded by counsel rey, and William S. Ardrey. That Sophia for defendants in their briefs furnished the Ardrey, a defendant herein, is the wife of said court. The fact of such payment prevented said James T. Ardrey. That Nora Ardrey, a de quitclaim deed from creating an estate by the fendant here, is the wife of William S. Ardrey. entirety in said William G. Ardrey and his That said Evelena Ardrey married George wife. If, after such conveyance, Margaret V. Burch, a defendant herein. That said Elzena Ardrey had died before her husband, it clearly Ardrey married one Charles Liter; from whom, appears that neither he nor his heirs after him on the day of May, 1907, she was law could be heard to claim that he took the entire fully divorced. That thereafter, and prior to estate as surviving tenant by the entirety. If the death of her father, the said Elzena Liter it were such estate as to one, it was as to the married, and is now the wife of, Joseph Moss, other. It would be an estate by the entirety as her coplaintiff herein. That in the year 1884 to both, or as to neither. The court finds and said Charity C. Ardrey died intestate, leaving declares as a proposition of law that, under surviving her her widower, the said William G. and by virtue of said quitclaim deed, the granArdrey, and the said four children born to the tees therein took title in and to said lands as said William G. Ardrey and his wife, Charity tenants in common; the said William G. ArdC., as aforesaid. That after the death of their rey thereby becoming the owner of an undividmother the said children, by means not clearly ed seven-thirteenths interest in said 136-acre appearing in the evidence, sought to dispossess tract; and his wife, Margaret V. Ardrey, their father of said lands, which by reason of thereby becoming the owner of an undivided the death of their mother had descended to said six-thirteenths interest in said 136-acre tract, four children as tenants in common, subject to subject to the said curtesy estate therein of their father's curtesy estate therein. Failing the said William G. Ardrey. in their attempt to dispossess the said William "The court further finds: That there were G. Ardrey, the said heirs sought efther to buy born to the said William G. Ardrey and his the interest of their father in said lands or sell wife, Margaret V. Ardrey, two children, detheir interest therein to him. Several propo- fendants herein, viz., Pansy L. Ardrey and sitions tending to that result were made by the Clifton Ardrey, the latter of whom is a minor, respective parties; and thereafter, on the 27th duly served with process herein and represented day of September, 1901, by their quitclaim deed herein by his duly appointed guardian ad litem of that date, the said James T. Ardrey and his herein, the said Margaret V. Ardrey; that on wife, Sophia, Evelena Burch and George Burch, the

day of

190i, the said William her husband, Elzena Liter and her then hus- G. Ardrey and his wife signed, and on the band, Charles Liter, William S. Ardrey and his

day of 1901, acknowledged, a cersaid wife, Nora, remised, released, and quit- tain quitclaim deed purporting to convey to their claimed to the said William G. Ardrey and his said two children, Pansy L. and Clifton Ardrey, then wife, Margaret V. Ardrey, for the ex- the above-described 136 acres. That said lastpressed consideration in said deed of the sum mentioned deed, after the signing and acknowlof $1,300, all of said 136-acre tract. Tbat of edgment of the same as aforesaid, was by the said consideration the sum of $325 was in fact grantors named therein put away and kept at paid to each of said four heirs of Charity C. their home, among their papers, and was conArdrey, deceased. That after the death of tinuously in their possession during the said Charity c. Ardrey, and prior to the execution William G.'s life, and thereafter remained in of said mentioned deed, said William G. Ardrey the possession of said Margaret V. Ardrey unmarried Margaret V.

who, as the sur til January 4, 1910, when she duly filed the viving widow of said William G., 'is one of the same for record in the office of said recorder of defendants herein. That on the 31st day of deeds, and with the intent thereby to pass the December, 1901, said quitclaim deed was duly title to the lands in controversy to said Pansy acknowledged by all of the grantors therein, and L. and Clifton Ardrey. That there was never was duly recorded in the office of said recorder any delivery of said last-mentioned deed by Wilt of deeds. That at the date of the execution by liam G. Ardrey, and there was never any dethem of said quitclaim deed each of the four livery of the same by Margaret V. Ardrey until children of William G. Ardrey was of age, mar- the filing of the same by her for record as aforeried, and not living with their father, and each said, and no title of the said William G. Ardof them had a separate home and domestic estab- rey in or to said lands passed or was conveyed lishment. That they sold their said interest in by said deed to any one. That said William G. said lands with full knowledge of the interest Ardrey did not reside on said lands at the time their father had in the same, having previously of his death, and did not have any homestead consulted a lawyer and by him been informed therein, and there is no homestead interest or

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