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created by an express contract, and not one | 143 Mo. App. 393, 127 S. W. 595. Special created by an implied contract. The rela- conditions are frequently imposed for the tion of passenger and carrier may be created transportation of passengers upon freight by either express or implied contract. In trains, and such conditions must be complied this case it was by express contract, and we with by the passenger, or he may be exmust deal with the case in that light. That it pelled. 6 Cyc. 552. is more hazardous to ride on a freight train It will not do to say that a railroad comin a freight car, loaded with stock and mer- pany may not impose reasonable restrictions chandise, than in the caboose of the same upon the right to ride upon its freight trains. train is a matter of common knowledge. Such company has a right to say, “You can The contract of carriage fixed the place upon ride upon a freight train, but if you do so defendant's train where the plaintiff must be ride you must ride in the caboose, which has when such train was in motion or about to been arranged for such purposes." I do not be put in motion. This contract of carriage is understand that counsel for the plaintiff secontained in two instruments,' both signed riously deny this proposition, but their theby plaintiff, i. e., (1) the live stock con-ories we take later. Under this proposition tract, and (2) the drover's pass. The latter we come to a further question. If in violais printed on the back of the former. Clause tion of the contract the passenger rides in a 8 of the “live stock contract," so far as re- more dangerous place, and by reason of that quired, reads :

fact is injured, can he recover? We say no. "That the person, or persons, in charge of the In this case there is no question that the live stock covered by this contract, shall re- place in which plaintiff was riding was at main in the caboose car attached to the train: least one of the proximate causes of his inwhile the same is in motion, or about to be put in motion, and that whenever such person, or jury. In other words, had he been riding in persons, shall leave the caboose or pass over or the caboose, as demanded by his contract of along the cars, or track, they, shall do so at carriage, he would not have been injured. their own risk of personal injury from every cause whatever, and that the said first party Under the facts shown, therefore, we must shall not be required to stop or start its train find this as a matter of law. And as stated, or caboose cars, from depot platforms, or fur: supra, we must know that it is more hazardnish lights for the accommodation or safety of such persons.'

ous to ride in a freight car with stock and

goods than in a caboose at the end of the From the reverse side of the contract and train. In the Sparks Case, supra, the Kanin the body of the drover's pass we find the sas Court passed upon a contract almost in following:

the exact wording of the contract in issue "The party or parties in charge of this stock

here. The conclusion of the court is well sball and they hereby agree to observe the following regulations and identify themselves stated in the first paragraph of the syllabi whenever required to do so by any conductor: thus: (1) Remain in the caboose attached to the train

"A written contract with a railway company, drawing said cars while the train is in motion. signed by the shipper of live stock, providing (2) Geť on and off said caboose while the same that such shipper, while being carried upon the is still. (3) Get on or be on no freight or other train transporting his stock, shall remain in cars while switching is being done at stations. the caboose car attached to the train while the (4) Will not walk or stand on any track at sta

same is moving, is valid and binding between tions or other places at night without a lan- the parties thereto. Such a contract is a reatern."

sonable one, intended for the safety and conPlaintiff maintains that the whole in- venience of the shipper, as well as for the prostrument was in evidence, and we think it it does not contravene any law or a sound pub

tection of the railway company carrying him. was, and will so treat it. That plaintiff, at lic policy." the time of his accident, was in a place in

In the Tuley Case, supra, that distinguishviolation of these written instruments there ed jurist, Judge Rombauer, thus speaks: can be no doubt. How does such conduct

"Touching the second proposition, we say upon his part affect his case? This is the that it is wholly immaterial whether the infirst vital question. After that will come the struction to agents and shippers was formally question of waiver of the contract, as well part of the live stock contract signed by the

plaintiff or not. It was a reasonable regulaas the effect of other clauses of the contract. tion of the company, purporting, in express

For the present we take the case as if terms, to be directed to him as a shipper, of there were no waiver of the terms of the which, under the uncontroverted evidence, he

was bound to take notice, and of which, uncontract of carriage, and as if there were questionably, under the facts of this case, he no other conditions cutting down the full had actual notice. A passenger who is reforce and effect of the conditions we have ceived on a freight train is entitled to the same set out, supra. These restrictions in a con

rights as one on a passenger train, except that

by so doing he acquiesces in the usual incitract of carriage have been held to be rea- dents and conduct of a freight train, managed sonable and valid. Railroad v. Sparks, 55 by prudent and competent men.

McGee v. Kan. 288, 39 Pac. 1032; Tuley v. Railroad, 41 Railroad, 92 Mo. 208, 4 S. W. 739, 1 Am. st.

Rep. 706. "It cannot be expected, says Judge Mo. App. loc. cit. 435; Fussellman v. Rail. Thompson, in his work on Carriers, p. 234, way Co., 139 Mo. App. 198, 122 S. W. 1137; 'that a company will provide its freight trains Bruce v. Railroad, 136 Mo. App. 204, 116 s. with all the conveniences and safeguards W. 447; Aufdenberg v. Railway Co., 132 Mo. ed of it in the construction and operation of

against danger which may properly be demand565, 34 S. W. 485; Youmans v. Railway Co., I cars designed solely for the transportation of

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passengers.' That the prima facie presumption [71 IV. But it is urged that there are othof negligence arises in these cases from the er clauses of the contract which gave the mere happening of the accident is a proposi. tion not open to discussion. Lemon v. Chans- right to be where he was at the time, and lor, 68 Mo. 340 130 Am. Rep. 799); Coudy v. that the whole contract must be considered. Railroad, 85 Mo. 79; Hipsley y. Railroad, 88 We grant the latter proposition. We shall Mo. 348. But the passenger who seeks to re-take the whole contract of carriage. These cover on this presumption must show, not only that he was a passenger, but also that, at other provisions are: the date of the accident, he was in a place "Second. That the first party is exempted where he had a right to be, or at least that from liability for loss or damage arising from the place where he was, if he was not in the derailments, collision, fire, escapement from right place, did not affect the result."

cars, heat, suffocation, overloading, crowding, The instructions to shippers, spoken of by maiming, or other accident or causes not aris. Judge Rombauer, included a direction to ride ing from negligence of the first party.

“Third. That the second party shall assume in the caboose, thus covering the exact ques- all risk and expense of feeding, watering, bedtion involved in the contract of carriage in ding, and otherwise caring for the live stock this case.

covered by this contract while in cars, yards,

pens, or elsewhere, and shall load and unload In 3 Thompson on Negligence, g 2911, it is the same at his own expense and risk. said:

"Fourth. That the party is exempted from "Injuries to stockmen have been so frequent liability for loss or damage caused by any mob, that railroad companies have found it neces- strike, or threatened or actual violence to persary to insert in the so-called drover's pass a

son or property from any source. written contract, generally signed by the ship

"Seventh. That this contract does not enper or by the holder of the pass, requiring him, title the holder thereof, or any other person, to while riding on the train, to remain in the ca

ride on any train except for the purpose and in boose attached thereto, while the train is mov- accordance with the conditions printed on the ing. Such a stipulation is valid and binding back hereof, all of which are agreed to be a upon the stockman, and if he is killed in con- part of this contract, nor to ride in the cars of sequence of its violation, under such circum- any train except that in which the live stock stances that the fact of its violation is the covered by the contract is transported, nor to proximate cause of the injury, there can be no point of origin, unless this contract is present

return passage from destination of live stock to recovery of damages.'

ed within

days from date hereof to And the same author further says:

the properly authorized agent of the first par“The word 'motion' in such a contract means ty for return pass; that such pass, properly obthat continuous movement of cars towards tained as above, shall be used within 24 hours their destination, which is commonly under- after date and hour issued, by such person or stood when we speak of moving trains or a persons only whose names are written therein, train in motion, and does not mean a sudden and who actually accompanied the live stock jolt or jar of a car while the train is station for the purpose of caring therefor, and shall ary."

not include women, infants, or other persons We shall not quote further, for the cases live stock in transit, as required by this con

unable to perfrom the services of caring for generally recognize the reasonableness of this tract." restriction, whether such restriction is in the

The conditions printed on the back, as men: contract of carriage, or is a mere rule or tioned in the seventh clause of the contract regulation of the carrier. The restriction,

above, are the conditions which we have set being in the contract, prevents a denial of out as a part of the drover's pass, supra. knowledge which is sometimes discussed in There is not a word in any of these provicases where it is a mere rule or regulation. sions which cuts down or modifies the terms

Going now a step further. If the plaintiff of clause 8 of the contract, which says that was in a place where he was by the contract the plaintiff shall ride in the caboose when forbidden to be, and the fact of being in that the train is in motion. Grant it that these place was one of the producing causes of his clauses do make it incumbent upon the plaininjury upon the facts shown, can be recover? tiff to look after his stock, and feed and waA general rule is thus announced in 6 Cyc. p. ter the same whilst in transit, it does not 653:

authorize him to do this whilst the train is "To ride in a car not intended for passengers in motion. The contract must be construed, such as a baggage, mail, or express car, and without the consent of the carrier's servants, if it can be so construed, in such manner as is usually considered negligence per se so far will permit all of its provisions to stand and as to absolutely defeat recovery for injuries to have force and effect. This rule of conwhich would not have been sustained had the

There are times passenger been in a proper place. It is usually struction is elemental. for the jury to say whether the injury is the when these freight trains stop at stations and proximate result of riding in such car."

watering places. At such times the train is In this case the undisputed evidence shows not in motion, as this term is defined by that, had plaintiff been in the caboose, he Judge Thompson. At such times and places would not have been hurt; therefore there the plaintiff had the right to go into the was no question for the jury as to whether stock car and care for his stock, but when he the place in which he was riding was one of saw the train was about to be put in motion, the proximate causes of his injuries.

or was in motion, he had no such rights. So, taking the facts thus far disclosed and This contract, fairly construed, did not authe contract of carriage thus far outlined, the thorize the plaintiff to be in the car for any plaintiff was not entitled to recover. He was purpose at the time of this accident. But not in fact a passenger, because not riding plaintiff says Bolton v. Mo. Pac. Ry. Co., 172

case.

vor, and contrary to the views which we have, [8] V. There is but one other thought that expressed. Such is not true. The facts of comes to us in this case, and that is the questhat case are not the facts of this case, and tion of a waiver of this contract. This is Judge Valliant expressly excludes from his suggested more by some evidence, which was opinion a discussion of a case having the set out in the divisional opinion, than by facts of the case at bar. In the Bolton Case, briefs of counsel. Nor did the divisional at page 104 of 172 Mo., at page 533 of 72 S. opinion go off on this ground. It will suffice W., Judge Valliant says:

to say that the evidence in this case does not "Whether he had a right to ride in the car show a waiver under the express ruling of while the train was under way is immaterial; this court in Aufdenberg v. Railway Co., 132 the train at this critical moment was not under way. He had ridden in the car from Versailles Mo. 565, 34 S. W. 485. But, if this were a to Tipton, and the indications were that he in- pressed question in the case, another sufij. tended to ride in it from Tipton to Trinidad, cient answer would be that no waiver of the and, if the injury had occurred while the train contract was in any way pleaded. The dewas so in progress, the question that defendant seeks to raise might have come up. The testi- fendant invoked the contract as a defense. mony, therefore, as to custom (even if it were The plaintiff by reply pleaded no waiver inadmissible, which we do not decide) could not thereof. The question is not therefore in the have affected the question of the right of the plaintiff to be where he was at that time, because the contract gave him that right."

We reiterate that a reasonable construcIn the Bolton Case the train was not in tion of this contract only gave plaintiff the motion and on its way to its destination. It right to be in the stock car for the purpose was on track but not in motion. The facts of looking after his stock, when the train in the Bolton Case were thus stated by Judge was not in motion; that the position of Valliant:

plaintiff at the time of the accident was one “At Tipton the car was taken out of the taken by him in violation of the express train in which it bad come there, and was side- terms of the contract of carriage; that it tracked to await the arrival of a freight train was a more hazardous position than the one on the main line, into which it was to be placed. On the arrival of a west-bound freight specified in the contract; that his position train, plaintiff asked the station agent if his in the train was one of the proximate causes car was to go in that train, and, being informed of his injury; that under the facts of the that it was, he got into the car again. The car was moved onto the main track, and while case he would not have been injured had he there another car loaded with ties was bumped been in the caboose where the contract proagainst it with such violence as to knock one vided he should have been at the time of the of the cows through a partition and against accident; that, under such facts, the dethe horse, and knocking both down. Plaintiff went to the door of the car to see if the engine fendant was not liable, and the judgment had hold of the tie car, and finding that it had nisi should be simply reversed. not, but seemed to be going away, plaintiff It is so ordered. All concur; BROWN, J., went to the assistance of the horse and cow, in result. and succeeded in getting them on their feet again, then came another bump, harder than before, and the horse and cow and man all went down together, the cow falling on plain- STONE v. KANSAS CITY & W. B. RY. CO. tiff's leg and breaking both bones between the ankle and the knee. Between the first bump,

(No. 16478.) in which the cow was thrown through the par- | (Supreme Court of Missouri, Division No. 2. tition, and the second, in which the plaintiff was June 23, 1914. Rehearing Denied injured, the conductor of the train came to the

July 14, 1914.) car and asked the plaintiff, 'How is every. thing?' to which plaintiff made reply that 'it 1. QUIETING TITLE (8 10*)-SOURCE OF TIknocked thunder out of one partition. At that TLE-COMMON SOURCE. time the car had not been coupled to the train. To constitute common source of title of The testimony was to the effect that the switch- the parties to a suit to quiet title, it is not necing of the cars which produced the injury was essary that both parties have a good title from with unusual force and recklessness."

the common source, but only that both claim Judge Valliant was right when he said the under the common source, and a railroad complaintiff in that case had a right to be in the right of way and another claiming title under

pany in possession claiming under a deed of a car under the contract. The car was at a the same grantor claim under a common source, station on the track, but was not even in the which cannot be impeached by defendant in a train by which it was to be moved to its des- suit to quiet title except by a title superior to

that of the common source. tination. The contract gave Bolton the right

[Ed. Note.-For other cases, see Quieting Tito look after his stock in the car at such time tle, Cent. Dig. $$ 36-42; Dec. Dig. § 10.*] and place, and such is the construction which 2. EVIDENCE (8 366*)-INSTRUMENTS ADMISwe have given to the contract here. To my SIBLE IN EVIDENCE-DEEDS. mind this case is an authority against the

A deed executed by an assignee in bankplaintiff. To say the least of it, Judge Val-deed of trust is admissible in evidence, where it

ruptcy and by a substituted trustee under a liant declined to discuss what would be Bol- recites that the property was sold under orders ton's situation had he been injured whilst the of the court in bankruptcy and under the deed train was in motion en route. The clauses of trust, in the absence of any objection on the of the contract relied upon by the plaintiff ground that the orders of the court were not

shown. did not authorize his position in the car at

[Ed. Note.--For other cases, see Evidence, the time of his accident.

Cent. Dig. $$ 1521-1539; Dec. Dig. $ 366.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

on an

3. MORTGAGES (8 342*)-TRUSTEES-SUBSTI- color of title is adjudged worthless in a litigaTUTED TRUSTEE.

tion between the parties. A proceeding under Rev St 1909, § 11920,

[Ed. Note.-For other cases, see Adverse Posfor the appointment of a substituted trustee un: session, Cent. Dig. 88 488–500; Dec. Dig. 8 der a deed of trust is an ex parte application of 84.*] the bepeticiary in the deed, and may be had on affidavit only without notice of the applica- 11. ADVERSE POSSESSION ($ 100*)-COLOR OF tion, and the appointment of the sherif

TITLE-EXTENT OF POSSESSION. ex parte application is valid.

A railroad company obtaining a judgment [Ed. Note.-For other cases, see Mortgages, thereby obtain color of title outside the strip,

decreeing title to it in a 20-foot strip does not Cent. 'Dig. $ 1041; Dec. Dig. $ 342.*]

and, where its actual possession is confined to 4. VENDOR AND PURCHASER (8 232*)-NOTICE the strip decreed to it, it acquires no title to an -POSSESSION-EFFECT.

additional adjoining strip, though it is entitled One who purchases real estate in the open to a right of way 100 feet wide. and visible possession of a third person is

[Ed. Note. For other cases, see Adverse Poschargeable with notice of the title and right of session, Cent. Dig. 88 547–574; Dec. Dig. 8 the third person.

100.*] [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 540-545, 548–562;

Appeal from Circuit Court, Jackson CounDec. Dig. § 232.*]

ty; E. E. Porterfield, Judge. 5. MORTGAGES ($ 274*)-FORECLOSURE- -PUR

Action by W. B. Stone against the Kansas CHASE OF EQUITY OF REDEMPTION.

City & Westport Belt Railway Company. A purchase of the equity of redemption From a judgment for plaintiff, defendant apafter the foreclosure of a deed of trust, but be- | peals. Affirmed. fore the recording of the foreclosure deed and without notice of the foreclosure, does not avoid This is a proceeding to quiet title to real the foreclosure sale as between the purchaser of the equity and the purchaser under foreclo- estate. There was a judgment for plaintiff, sure, but, at most, the failure to record the from which defendant has appealed. foreclosure deed wild only let in the purchas- The petition was filed September 26, 1908, er of the equity to redeem from the deed of, and contains the following: trust.

"Plaintiff for his cause of action against said [Ed. Note. For other cases, see Mortgages, defendants states that he is the owner of all Cent. Dig. 88 718–724, 728; Dec. Dig. § 274.*]

of lots 101 and 104 in Campbell's addition to 6. ADVERSE POSSESSION (8 112*)-TITLE BY

the town of Westport, now a part of Kansas ADVERSE POSSESSION-BURDEN OF PROOF.

City, Jackson county, Mo., except a right of One asserting title by adverse possession way over and across said lots, extending for a

distance of 10 feet on each side of the center has the burden of proving it.

line of the present railroad now located over [Ed. Note.--For other cases, see Adverse Pos and across said property. Plaintiff further session, Cent. Dig. $$ 651, 653, 654, 657-659, states that defendants, Kansas City & West661-663, 665, 666; Dec. Dig. 8 112.*]

port Belt Railway Company and the Metro7. ADVERSE POSSESSION ($ 43*)-Acts Con- terest in and to a part of said property adverse

politan Street Railway Company, claim an inSTITUTING POSSESSION.

to that of plaintiff, the part claimed by said deWhere one in possession ceased, on a des- fendants being a strip of ground over and ignated date, to make any claim to the land, his across said lots, extending 50 feet on each side subsequent possession under a claim of right of the center line of said railroad.” could not be tacked onto the possession under claim of right prior to the designated date be

Then follows the usual prayer for relief in cause of the break in the claim.

such cases. [Ed. Note.-For other cases, see Adverse Pos- The answer contains the following: session, Cent. Dig. S: 213-224; Dec. Dig. $ 43.*]

"Comes now the Kansas City & Westport 8. JUDGMENT (§ 713*)-RES JUDICATA-Ques- Belt Railway Company, and for its separate TIONS CONCLUDED.

answer to the petition of the plaintiff filed hereA judgment is res judicata as to the par- in states that it is now, and has been for 30 ties and their privies as to all matters which years or more, the owner of the easement over were, or which might have been, submitted to and upon, and in the possession of, the propthe court for consideration on the issues of the erty described in plaintiff's petition, to wit: case in which the judgment was rendered.

All of lots 101 and 104, Campbell's addition to

the town of Westport, now a part of Kansas (Ed. Note.-For other cases, see Judgment, City, Jackson county, Mo. Wherefore defendCent. Dig. $$ 1063, 1066, 1099, 1234-1237, 1239, ant prays the court to enter a decree herein 1241, 1247; Dec. Dig. ß 713.*]

declaring this defendant to be the owner of 9. ADVERSE POSSESSION (8 100*)-COLOR OF and further declare that plaintiff has no right,

the easement referred to herein over said lots, TITLE. One in possession of a strip under a judg. its costs herein expended.”

title, or interest in or to said property, and for ment decreeing title in him does not thereby hold constructive possession sufficient to ripen The reply was as follows: into title by adverse possession of an adjacent "Now comes plaintiff, and for reply to the strip not actually occupied by him or others, answer filed herein by defendant Kansas City but his possession extends only to the land in & Westport Belt Railway Company denies that his actual occupancy.

said defendant is in possession of or entitled to [Ed. Note.-For other cases, see Adverse Pos- any right of way or easement over the land desession, Cent. Dig. $$ 547-574; Dec. Dig. $ scribed in plaintiff's petition, except the right 100.*)

of way in such petition described, and denies

that defendant has been in possession of any 10. ADVERSE POSSESSION ($ 84*)-COLOR OF right of way over said !and, except the right TITLE.

of way described in plaintiff's petition, for a A claim of right under color of title in- period of 30 years or for any other period of cludes good faith, which is destroyed when the time.

"Plaintiff for further reply to said answer | District Court of the United States for the says that, if said defendant or any person or Western District of Missouri assigning the corporation under whom it claims ever had any right of way over and across said land, ex- property and estate of Oliver Case & Co. and cept the right of way described in plaintiff's Theodore S. Case, bankrupts, to John A. Ross, petition, it or they have long since abandoned ' assignee in bankruptcy; also a deed dated and relinquished the same, and the same has June 18, 1877, executed by John A. Ross, aslong since been lost and extinguished by abandonment.

signee in bankruptcy, as aforesaid, and by “Plaintiff for further reply to said answer C. B. L. Boothe, sheriff, the substitute trussays that all the rights of said defendant Kan- tee, to Stephen Perkins, foreclosing the deed sas City & Westport Belt Railway Company of trust dated April 23, 1868, to which de over and across said property were fixed and determined by a judgment of the circuit court fendant made the formal objections, and also of Jackson county, Mo., at Kansas City, in an objected on the ground that it was not shown action wherein Sophia Perkins, John S. Pero that the parties had any authority to make kins, and Robert Perkins, under whom plaintiff claims title to the property described in the deed. That deed was not recorded until plaintiff's petition, were plaintiffs, and the June 22, 1891. It recited that it was made Kansas City, Osceola & Southern Railway Com in pursuance of an order of said district pany, John 1. Blair, De Witt C. Blair, d. Ledyard Blair, Clarence B. Mitchell, Henry Pfeiffer, court, and that the sale had been approved and said defendant Kansas City & Westport by that court. Belt Railway Company were defendants, in

On August 27, 1873, after the execution of which judgment the right of said defendant to the foregoing deed of trust and before its an easement or right of way over and across said property was fixed and determined, and foreclosure, the Cases executed a conveyance such right of way established as described in of a right of way to the Kansas City, Memplaintiff's petition. "Wherefore plaintiff asks judgment as in his wide on each side of the center line of its

phis & Mobile Railroad Company 25 feet petition prayed."

On April 23, 1868, Theodore S. and Oliver railroad through lots 102, 103, 104, and 178 Case, having color of title to said lots 101 in said addition. There was no lot 178 in and 104, and being in possession thereof, ex

that addition. Immediately following the ecuted a deed of trust on the lots to George road through lots 101 and 104 on the line

execution of that deed the grantee graded its W. Doggett, as trustee, to secure the payment of a debt to Stephen Perkins, with the usual where defendant's track now runs. provisions for sale by trustee in case of de

After the purchase by Stephen Perkins un. fault, but there was no provision for a sale der the foreclosure of the deed of trust on by a substitute trustee. It was acknowl- the lots, he took possession and built a fence edged and recorded on April 29, 1868.

around the lots, including the grade of the The plaintiff read in evidence an entry in

railroad. the records of the circuit court of Jackson

On January 28, 1887, the Kansas City & county, dated October 31, 1874, as follows:

Southeastern Railroad Company became the "This day comes Stephen Perkins, by his at

owner by mesne conveyances of the railroad torney and presents his petition, sworn to, and its right of way through lots 101 and 104, stating, among other things, that he is the ben- all of which were at that time inclosed by eficiary or cestui que trust in a certain deed of said fence. It constructed its road along trust executed on the 230 day of April, 1868, by Theodore S. Case, Julia M. Case, and' Oliver and over that old grade during that year. At Case, to George W. Doggett, trustee, conveying what period during that year the work was certain real estate and personal property there done is not shown. The evidence does not in described, and situated in the city of West- show that the roadbed occupies any ground port, county of Jackson, and state of Missouri, to said Doggett in trust to secure the payment more than 10 feet from the center of the of certain notes therein described of which said track. In 1891 the railroad company rePerkins was then and still is the legal owner paired and improved its track through those and holder. That a part of the interest and principal of said notes remains due and unpaid, lots and piled material for bridges and track and that said George W. Doggett, trustee, bas construction on the lots along its track, the since died, leaving no one authorized by the distance from the track not being definitely terms of said deed to execute the same, and shown. In the years 1891 and 1892, cars of praying the court for the appointment of the sheriff of the county trustee to execute said freight were placed on the track at that trust.

place and unloaded there by wagons which "It is therefore ordered and adjudged that came on the uninclosed lots for that purC. B. L. Boothe, sheriff of the county, be and he is hereby appointed trustee in place and pose. During the work in 1891 dirt was stead of said George W. Doggett, deceased, to taken from places within 25 feet on each execute said trust.'

side of the center of the tract for improve There was no showing of the service of ment of the roadbed. There was rock there, any summons or notice on any one to appear and the dirt was not taken over 6 inches in such proceeding. The defendant objected deep. to such evidence on the ground of irrelevan- On July 20, 1897, the defendant became cy, incompetency, and immateriality, and be the owner of the railroad by deeds which decause the court had no power to make such scribed its right of way as 100 feet wide. appointment on the showing recited in the or- Stephen Perkins died intestate, leaving a der. The objection was overruled.

widow, Sophia, and his children, John S. and Plaintiff read in evidence a deed of assign- Robert H., his sole heirs, who, on August 30, ment by the register in bankruptcy in the 1897, brought suit against this defendant in

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