24 feet between curbs, so that the business of the railroad company and the public could not be carried on there at the same time. The grant of authority to the company to occupy the street was, in substance and effect, giving to the company a monopoly of the use of the street; and it was held the city had no power to thus destroy the street for the purposes for which it was originally dedicated. Taking these cases all in all, it is very clear that a municipal corporation has no power to grant to a railroad company such use of a street as will destroy its usefulness as a public thoroughfare, or destroy or unreasonably interfere with the right of an abutting property holder to access to and from his property. Though the city gave its assent to the construction of this railroad track, still the defendant was bound to construct and use the track with due regard to the rights of the public and adjacent property owners. The defendant has no greater rights than others, for in the use of the street it is but one of the public, and must conduct and operate its track accordingly. As said in Railway Co. v. Twine, 23 Kan. 585: “A railroad company has no higher rights in a highway than an individual. It may share its use, but cannot monopolize it; and the owner of a lot abutting on the highway, and who has special need thereof for ingress and egress from his lot, is specially damaged by any monopoly of the use of the highway by railroad company." Guided by these principles, it is plain this switch track is an illegal structure; for it, in effect, deprives the plaintiff of any use of its Hall street front. We have here a virtual attempt to confiscate plaintiff's right of access, which right, we have seen, is private property. The structure is a public nuisance, and as to the plaintiff it is also a private nuisance, and ought to be removed with all due speed. As this track was placed there without the plaintiff's consent, and against his will, the fact that plaintiff received coal and some lumber by cars brought over the track is immaterial. The right to have the track removed is not affected by such use of it. On behalf of the defendant it is insisted that plaintiff's remedy, if any it has, is an action at law to recover damages; and in support of this proposition we are cited to Osborne v. Railway Co., 147 U. S. 248, 13 Sup. Ct. 299, and Gaus & Sons Manuf'g Co. v. St. Louis, K. & N. W. Ry. Co., 113 Mo. 308, 20 S. W. 658. What was said in those cases on the subject of equitable relief is not applicable to this case; for we have reached and before expressed the conclusion that this track, placed on what is properly the sidewalk, close up to the plaintiff's lot, is an unlawful structure, one which the city did not and could not legalize, as against the rights of plaintiff. The injury inflicted upon the plaintiff is of a continuous character, and the case is one calling for equitable relief. The judgment is reversed, and the cause remand ed, with directions to the circuit court to award the plaintiff the injunctive relief prayed for in the petition. BARCLAY, J., not sitting. The other judges concur. BROWN et al. v. RODGERS et al. (Supreme Court of Missouri, Division No. 1. Dec. 10, 1894.) WILLS-ESTATE TAIL-LIFE ESTATE LIMITATION OVER-PARTITION. 1. The provision in a will, after a devise to each of testator's children "and the heirs of her body" (which, under the statute of entails, would have been an estate in fee tail), that, should any of testator's said heirs die without issue, the property bequeathed to such heir should be divided between testator's then surviving heirs, the same to vest absolutely in them and the heirs of their body, is void, as in contravention of St. 1845, declaring that when a devise is made, whereby the devisee is seised of such estate as would, under the statute of entails, have been a fee tail, such devise shall vest an estate for life, only, in the devisee, and on his death the lands shall be vested in his children, or, if he have none, then in his heirs. 2. In such case, after the death of each devisee, the land devised to her is subject to partition. Appeal from circuit court, Jackson county; C. O. Tichenor, Special Judge. Ejectment by Rowena Brown and others against A. M. Rodgers and others. Judgment for defendants. Plaintiffs appeal. Affirmed. H. C. McDougal and C. F. Moulton, for appellants. Gates & Wallace, for respond ents. MACFARLANE, J. This is a suit in ejectment to recover possession of the following lands, viz.: The W. 1⁄2 of the S. W. 4 of section 34, and the S. E. 4 of the S. E. 4 of section 33, all in township 50, range 32, in Jackson county. The suit was commenced September 22, 1890. It was agreed that Jacob Johnson was the common source of title. He died testate in 1851, leaving one Gordon P. Johnson and six daughters,Clarinda; Catherine, wife of Daniel C. Woodall; Eliza, wife of Abraham Buford; Amanda, wife of Castleman; Mary Jane, afterwards wife of Richard Kirby; and Julia, afterwards wife of James McCormick. By his will, under separate paragraphs, he devised to each of his childrencertain described land. The devise to his son was in fee, but to each of his said daughters it was to her "and the heirs of her body." The said S. E. 14 of the S. E. 4 was by the seventh paragraph devised to his daughter "Mary Jane and the heirs of her body," and the said W. 1⁄2 of the S. W. 4 was by the eighth paragraph devised to his daughter Clarinda "and the heirs of her body." The final paragraph of the will was as follows: "Finally, it is my will and desire that should any of my heirs above named die without issue of their body, that the property bequeathed to such heirs shall be equally divided between my then surviving heirs, the same to vest absolutely in them and the heirs of their body, except my son, Gordon P. Johnson, who, it is my will, shall take his share absolutely himself." The son, Gordon P., died without issue, June 29, 1863. Clarinda died without issue on the day of her father's death. Eliza Buford died November 11, 1860, leaving four children, viz.: William, born February 19, 1851; John, born June 20, 1853; Rowena (now wife of James F. Brown), born June 5, 1855; Elizabeth (now wife of John C. Blakely), born March 11, 1858,-who are the plaintiffs in this action. Julia Ann, who intermarried with James McCormick, died February 14, 1864, leaving two children then living, viz. Gertrude, who died in infancy prior to 1871, and the other, viz. William W. McCormick, died single and unmarried on the 21st day of November, 1888. Amanda Castleman, who afterwards married Anderson, died April 11, 1867, without issue. Mary Jane Kirby died September 30, 1870, without issue. Catherine Woodall died May 20, 1889, without issue. Both parties to the suit claim title through the will. Plaintiff's are the sole surviving grandchildren of the testator. Defendants claim as purchasers under judgments and orders of sale in partition made after the death of the said Clarinda and Mary Jane, and by virtue of adverse possession. All the surviving heirs of the said Clarinda and Mary Jane, including the plaintiffs, who are the children of Eliza Buford, deceased, were made parties to these partition suits. Objection is made to the manner in which plaintiffs, who were then minors, were made parties to some of these suits; but the proceedings are conceded to have been sufficient to give the purchasers color of title, and the adverse possession of the defendants and their grantors has been sufficient to give them the absolute title of the interest of plaintiffs if the land was, at the time, subject to partition. The question here is, what estate passed under the will, and to whom? Plaintiffs claim that, reading the separate, special paragraphs of the will in connection with the final one, an executory devise was created, under which the entire estate finally passed to them as the sole surviving children of the devisees of the testator, and a partition of the land, being in contravention of the will, could not be made. As we do not think the will created an executory devise, it will be unnecessary to determine whether the land would have been subject to partition, had one been created. There can be no doubt that each separate paragraph of the will which makes devises to the daughters of the testator created what would have been, under the English statutes of entails, an es tate in fee tail. The exact words necessary to create such an estate were used. If there had been no other provision of the will, the statute of this state concerning entails, in force at the death of the testator, would have immediately converted the estate tail into one for life, only, in the devisee, with remainder in fee to her children, and, in the event of such devisee dying without issue, the remainder would have passed to, and been vested in the heirs of such devisees. Rev. St. 1845, p. 219, § 5. This statute has been so construed in Clarkson v. Clarkson (decided at the present term of this court) 28 S. W. 446. There can be no doubt that the testator, by the final paragraph of the will, intended, in case of a failure of issue to any of the devisees, to have the estate pass to the other devisees and the heirs of their bodies. Having in view the purpose of finally vesting the entire estate in his grandchildren, the intention of the testator is very clear. It is true that the controlling guide in the construction of wills is to ascertain the intent of the testator. In order to arrive at the intention, the entire instrument and all its parts must be read together, and, if possible, effect must be given to every clause; but the intention of the testator must give way if clearly inconsistent with the rules of law. Our institutions are opposed to primogeniture in any form. The system has been broken up by express legislation in probably all the states of the Union which have adopted the English common law. In some of them, estates tail have been abolished altogether. In others, the legal effect of such common-law grants and devises has been declared. Under the statutes of some of the latter class the tenant in tail takes a fee simple absolute.* The same object of destroying entails is accomplished under our statute, and those of some others of the states by means less radical than that adopted by others, but equally effective. The statute of 1845, which was in force at the death of the testator, which occurred in 1851, declares "that from and after the passage of this act, when any conveyance or devise shall be made, where by the grantee or devisee shall become seized in law or equity, of such estate, in lands or tenements, as under the statute of the thirteenth of Edward the First, (called the statute of entails) would have been held an estate in fee tail, every such conveyance or devise shall vest an estate for life only in such grantee and devisee, who shall possess and have the same power over, and right in such premises, and no other, as a tenant for life thereof would have by law, and upon the death of such grantee or devisee, the said lands and tenements shall go and be vested in the children of such grantee or devisee, ** * * and if there be no issue then to his or her heirs." Under this statute, where the attempt is made to create an estate tail, the estate is immediately converted to one created by the statute, under which the entire estate passes to the grantee or devisee for life, with remainder in fee simple to his or her heirs. The attempt of the testator, by the final paragraph of the will, to follow up the estate tail first created with a succession of others limited upon cross remainders, with a view that ultimately his entire estate should vest in his grandchildren, is in direct contravention of the clearly expressed intention of the statute. The intention of the legislature must prevail over that of the testator. After the devises were made to his daughters and the heirs of their bodies, his power of disposal ended. The statute operating upon the will vested a life estate in the devisees, Clarinda and Mary Jane, to the land devised to them, respectively, with remainder in fee simple absolute in their respective heirs. Both dying without issue, the remainder in fee, upon their death, passed to and vested absolutely in their collateral heirs as tenants in common. After the death of each devisee, the land devised to her for life was subject to partition, and to the application of the statute of limitation. As it is conceded that defendants and those under whom they claim had been in the adverse possession of the land in question, under color of title, for more than 10 years after the youngest of the plaintiffs became of age, the judgment is for the right party, and should be affirmed. All concur. BUFORD et al. v. KRONHART et al. (Supreme Court of Missouri, Division No. 1. Dec. 10, 1894.) Appeal from circuit court, Jackson county; C. O. Tichenor, Special Judge. Ejectment by John Buford and others against John Kronhart and others. Judgment for defendants. Plaintiffs appeal. Affirmed. H. C. McDougal and C. F. Moulton, for appellants. Gates & Wallace, for respondents. MACFARLANE, J. By stipulation it was agreed that this case should be submitted with, and abide the result of, the case of Brown v. Rodgers, 28 S. W. 630. The judgment is accordingly affirmed. All concur. BROWN et al. v. FULKERSON. (Supreme Court of Missouri, Division No. 1. Dec. 10, 1894.) CONTINGENT REMAINDER-CONVEYANCE. A remainder contingent on the death of the life tenant before the remainder-man may be conveyed by the latter. Appeal from circuit court, Jackson county; John A. Sea, Special Judge. Action of ejectment by Rowena Brown and others against William I. Fulkerson. From a judgment in favor of defendant, plaintiffs appeal. Affirmed. C. F. Moulton and Jas. Callahan, for ap pellants. John W. Clements and John P. Flournoy, for respondent. MACFARLANE, J. This is an action of ejectment to recover the S. 1⁄2 of lot 20 in Hansbaugh's addition to the city of Independence. It is agreed that Jacob Johnson is the common source of title. His will is the same that was construed in Brown v. Rodg ers, 28 S. W. 630, by an opinion filed at this term. For its provisions, see that opinion. The fourth paragraph of the will devised to Catherine Woodall, a daughter of the testator, and the heirs of her body, the land in dispute. According to the construction given to the will, the said devisee, Catherine Woodall, took a life estate, only, in this property, with remainder in fee to her heirs. The said Catherine died May 20, 1889, without ever having had issue of her body. The plaintiffs Rowena Brown and Elizabeth Blakely, and their brothers, William and John Buford, children of Eliza Buford, a sister of deceas ed, were, at the death of the said Catherine, her sole surviving heirs. On the 21st day of February, 1881, plaintiffs, their husbands joining, executed, acknowledged, and delivered, all in due form, a deed whereby they did "grant, bargain, sell, convey, and confirm" unto one James B. Forbis, Jr., "all their right, title, and interest" in said lot. The deed con tained full covenants of seisin, in addition to those implied by the words "grant, bargain, and sell." Defendants are in possession, claiming title under this deed. As the construction of the will of Jacob Johnson was settled in the Brown Case, supra, we have only now to inquire as to the effect of the deed made by plaintiffs prior to the death of the life tenant, Catherine Woodall. The right of the plaintiffs, at the date of the conveyance, to come into the enjoyment of the property in question, was contingent upon their survival of Mrs. Woodall, who held the life estate. They had at that time neither an immediate right of present enjoyment nor a present fixed right of future enjoyment. The right of future enjoyment was uncertain, and the remainder was consequently contingent. 4 Kent, Lect. 59; Aubuchon v. Bender, 44 Mo. 560; Emison v. Whittlesey, 55 Mo. 254; Emmerson v. Hughes, 110 Mo. 627, 19 S. W. 979. But all interests in real estate are vendible under the laws of this state, and it has been expressly held by this court that a contingent remainder is an interest which is vendible by the owner on execution against the owner thereof. Godman v. Simmons, 113 Mo. 127, 20 S. W. 972, and cases cited. We are of the opinion, therefore, that the deeds from plaintiffs conveyed their interest in the land, and upon the death of the life tenant the remainder vested in their grantee. Judgment affirmed. All con cur. GATE CITY BLDG. & LOAN ASS'N v. NA- BANKS-PAYMENT OF CHECK TO UNAUTHORIZED Where the general fiscal agent of a building and loan association, who, while not by its by-laws the custodian of its funds, was the custodian of its securities, and authorized to make its collections and transact its banking business, deposits a check to the order of the association to his own credit, the bank on which the check was drawn is not liable for his misapplication of the money, though by the bylaws of the association the treasurer was the only person who could pay out its funds. Appeal from circuit court, Jackson county; John W. Henry, Judge. Action by Gate City Building & Loan Association against the National Bank of Commerce to recover the amount of a check to plaintiff's order deposited by one of its officers to his own credit. Judgment was rendered for defendant, and plaintiff appeals. Affirmed. C. S. Owsley and Lathrop, Morrow, Fox & Moore, for appellant. Elijah Robinson, for respondent. BRACE, J. This is an appeal from a judgment in favor of the defendant in the Jackson county circuit court. The plaintiff is a building and loan association organized under the laws of this state, of which, at the time of the transaction in question, E. E. Richardson was president, Benjamin Holmes, treasurer, and George L. Harris, secretary. In June, 1887, the association made a loan to Richardson of $4,000, evidenced by his bond, and secured by a deed of trust on some property in Kansas City. In June, 1888, Richardson concluded to pay off this loan, and made an arrangement with Judge Brumback for that purpose, who on the 19th of June, 1888, drew his own check of that date for $3,676.74, the balance due thereon, "on Armour Brothers Banking Co.," payable to "Gate City Building and Loan Association," and delivered the same to the said Harris in payment therecf, who indorsed said check, "Gate City B. & L. Ass'n, by George L. Harris, Secretary," and on the next day presented the same to the defendant bank, in which was then being kept an account in the name of said association, as also an individual account in the name of said Harris, for deposit on his personal account. Thereupon, the check was credited to Harris on his individual account, and collected by the bank, through the clearing house, of Armour Bros. Banking Company, on the 21st of June, 1888. Afterwards the proceeds thus placed to the credit of Harris on his personal account were checked out by him on his individual checks, for what purposes does not appear, except that on the same day of the deposit there was deposited to the credit of the association on its account the sum of $590.33, the exact amount of one of his checks on that day charged to him on his individual account. On the same day the check was given by Brumback, the following written statement was made upon the face of the bond of Richardson: "Received June 19, 1888, payment in full by E. E. Richardson, per J. Brumback, $3,676.74. Geo. L. Harris, Secretary,”—and the deed of trust was satisfied of record by a deed of quitclaim executed by the vice president of the association, in pursuance of a special order of the board of directors. Harris, the secretary, was the active manager of the association, and, under its bylaws, the custodian of its bonds, notes, mortgages, and other securities, the keeper of its accounts with its officers and members and those having dealings with the association, whose duty it was "to receive all moneys, and pay the same over to the treasurer," and "at all meetings of the board of directors furnish a statement of the financial condition of the association, and give a detailed statement thereof at each annual meeting, and make a semiannual report for publication in January and July of each year." The treasurer was the custodian of the money of the association, whose duty it was "to receive from the secretary all money paid into the association," to "pay all orders issued by the board of directors, signed by the president, and countersigned by the secretary," and to keep his accounts "open at all times to the inspection of the president and board of directors," and, when demanded by them, to give "satisfactory proof that the money and other assets are actually in hand in accordance with his own books and those of the secretary." It was the duty of the board of directors to hold monthly meetings, for the transaction of the business of the association not otherwise provided for, on the first Monday evening of each month. In the account of Holmes, the treasurer, kept by the secretary in the ledger of the association, appears the following entry: "October 1, 1888. Cash, E. E. Richardson, loan returned, thirty-seven hundred dollars." The evidence further tends to prove that Harris made the deposits to the credit of the association's account in the bank; that he was the only one that came to the bank to attend to its business; that prior to this transaction Harris had been making deposits both on his own account and on the account of the association; that he was in the habit of depositing checks payable to the association, indorsed as this one was, and no checks came to the bank indorsed in any other way; that he made other deposits to his own credit in the same way; that he "used very often to deposit the entire receipts to his own credit, and then give the company a check to cover it, and deposit it to the credit of the association"; that no objection was ever made by any of the officers of the association to his mode of doing the business at the bank, and this check was not deposited otherwise than in the regular course of his business with the bank. It further appears from the evidence that in April or May, 1889, Harris absconded, and it was thereafter discovered by the association that there was a shortage in his accounts, and that the check in question had been deposited by him to the credit of his individual account. In July thereafter, a demand was made on the bank for a return of the money collected thereon, and on the 28th of September, 1889, this suit was instituted for its recovery, in the form of an action for money had and received to the use of the association. At the close of all the evidence, the court instructed the jury to find for the defendant. Plaintiff thereupon took a nonsuit, and, the court refusing to set the same aside, the plaintiff appeals. The law of the case seems to be within a narrow compass. There is not a particle of evidence tending to prove that the bank did not act in perfect good faith in this transaction, in respect of which it occupied no fiduciary relation to plaintiff. It does not appear from the evidence to what purposes the proceeds of the check were ultimately applied by Harris, it may have been to his own, or to those of the association,-nor is this a matter of any importance upon the present issue. The bank was not responsible for the proper application of those proceeds by him. Rev. St. 1889, § 8691. The check was a negotiable instrument. Clothing Co. v. Crosswhite (Mo. Sup.) 27 S. W. 397. The credit given to the account of Harris was the same as if the money had been paid him on the check, and had been immediately placed back by him and credited on his own account. Benton v. Bank (Mo. Sup.) 26 S. W. 975; Oddie v. Bank, 45 N. Y. 735; 2 Morse, Banks, § 451. The bank thereby became a purchaser for value, in the ordinary course of business, of the instrument, and entitled to collect the proceeds thereof to its own account, if it acquired plaintiff's title by indorsement. So that the only question is, did Harris, in his official capacity as secretary, have power to transfer the check by indorsement? By the by-laws, the secretary was made the general fiscal agent of the association, the custodian of all its securities, whether bonds, bills, notes, drafts, checks, or whatever their form might be. To him, and to him alone, was intrusted the duty of keeping the accounts of the association, and of collecting all moneys due or coming to the association on account of such securities, or from any other source. All moneys were to pass through his hands into those of the treasurer, whose only authority was to receive the moneys of the association from the secretary, and pay the same out in the manner prescribed by the by-laws. The by-laws were of course made for an association to be conducted in accordance with the business principles of the age, and it would be a strange construction of those by-laws, in an age in which nine-tenths of the business of the country is transacted through the medium of bills of exchange, inland drafts, and bank checks, to hold that this secretary-who, it is conceded, had full power to collect the loan from Richardson, and in doing so to receive the check of Brumback therefor, payable to the association, and who had full power to collect said check-had not the power to indorse the check for the association, in order that he might have in hand the actual money which he was required to receive and. to pay over to the treasurer. Although the by-laws do not in express terms give the pow er to indorse checks, or to give acquittances for money received on account of the association, yet these powers are necessarily implied in the power given to the secretary to collect its securities and pay the money for the same to the treasurer. While by the bylaws all moneys are to pass through the hands of the secretary into those of the treasurer, and he must have all the power necessary to enable him to collect the money for such securities, and have it on hand for that purpose, they do not contemplate that it shall remain in his hands for any considerable length of time, or that it shall be paid out by him at all; and, in order that no loss or inconvenience may result therefrom, the accounts showing the condition of its treasury were open at all times to the inspection of the board of directors, whose duty it was each month to meet, ascertain the amount in the treasury, and loan the same if practicable. Had these officers discharged their duties, the exact condition of the fund arising from the collection of the loan to Richardson would have been known to them within 10or 15 days after it had been received by Harris, and they could have then taken such measures for its disposal, and the protection of the association, as to them might have seemed necessary and proper. If the association has met with any loss by reason of a misapplication of that fund, it must be charged to a breach of the trust reposed in one of its officers, and the neglect of duty by the others. It cannot be charged to the bank on account of this transaction had with its secretary, who therein acted clearly within the scope of his authority. The judgment is affirmed. All concur. SPURLOCK v. MISSOURI PAC. RY. CO. (Supreme Court of Missouri, Division No. 1. Dec. 10, 1894.) EVIDENCE-ADMISSIBILITY BILL OF EXCEPTIONS -REVIEW ON APPEAL. 1. On the third trial of a cause, the previous pleadings therein are admissible in evidence. 2. Exceptions to the court's amendment of requested charges will not be reviewed when the amendments are not set forth in the bill of exceptions. Error to circuit court, Hickory county; W. I. Wallace, Judge. |