V. Limitation.

The defendant introduced evidence showing that he and his grantors claiming through and under the warranty deed made by Mary E. Johnson and Thomas Johnson to Robert L. Searce on June 6, 1881, have been in the actual, open, adverse, exclusive, and continuous possession of the land in controversy for a period of more than 16 years, cultivating same as a farm. This evidence was admissible under their general denial. Stocker v. Green, 94 Mo. 280, 7 S. W. 279, 4 Am. St. Rep. 382; Coleman v. Drane, 116 Mo. 387, loc. cit. 391, 22 S. W. 801. Plaintiffs made no effort to rebut or discredit this evidence in any way; they tried the case on the theory that Mary E. Johnson held only a life estate, and therefore the statute of limitation would not begin to run against them as remaindermen until her death in 1909. We find that the plaintiffs were mistaken in that view.

Mary E. Johnson was a tenant in common with plaintiffs, and the statutes of limitation began to run against all of them as soon as Mary E. Johnson and her husband executed the warranty deed to Searce and the latter placed the same of record and took possession. Hendricks v. Musgrove et al., 183 Mo. 300, loc. cit. 311, 81 S. W. 1265; 38 Cyc. 34. The children of Thomas Johnson all attained their majority more than 10 years before this suit was instituted; consequently their rights are barred by the adverse possession of defendant and his grantors. If coverture or any other matter could have been interposed to toll the statute as to part of plaintiffs, no effort was made to do so, and we will decide the case on the issues presented below. The judgment is for the right party and will be affirmed.

It is so ordered.

LAMM, C. J., concurs. GRAVES, WALKER, and FARIS, JJ., concur in result for reasons stated in opinion filed by WALKER, J. BOND and WOODSON, JJ., dissent.

WALKER, J. I concur in the conclusion reached in the majority opinion that the judgment of the trial court should be affirmed, but not alone on the ground of the bar of the statute of limitations. I admit that generally all the words of a conveyance should, if possible, be so construed as to give full effect to the intention of the grantor as therein expressed; but this rule should not be invoked at the expense of the context of the instrument and in violation of the reasonable rules of interpretation.

The vexed words here are, "and the heirs of Thomas Johnson." These words are susceptible of three constructions: First, that they create tenancies in common in Mary E. Johnson and the heirs of Thomas Johnson; or, second, that they create a life estate in Mary E. Johnson with remainder over in the said heirs; or, third, that they are inopera169 S.W.-6

tive, and hence a fee is created in Mary E. Johnson.

It is well established that to create an estate of freehold or inheritance, to commence in the future, it is necessary that the right to the future estate conveyed vest in the grantee upon the execution and delivery of the deed. We so held in Aldridge v. Aldridge, 202 Mo. 565, 101 S. W. 42, in construing the statute (section 2876, R. S. 1909) which provides that "an estate of freehold or of inheritance may be made to commence in the future by deed in like manner as by will."

At the time of the execution and delivery. of the deed in question Thomas Johnson was living; consequently he could have no heirs, and no estate could, therefore, vest in them, If this conclusion is not correct as an elementary proposition, then the uniformly accepted definition of the word "heir" as "one on whom the law casts an estate upon the death of the ancestor" (Desloge v. Tucker, 196 Mo. loc. cit. 599, 94 S. W. 283) must go for naught.

There is nothing in the court's rulings in Buxton v. Kroeger, 219 Mo. 224, 117 S. W. 1147, or in O'Day v. Meadows, 194 Mo. 588, 92 S. W. 637, 112 Am. St. Rep. 542, or in Christ v. Kuehne, 172 Mo. 118, 72 S. W. 537, which militates against the conclusion reached here as to the necessity in the creation of an estate of its vesting in præsenti upon the execution and delivery of the deed. In each of these cases the facts clearly show that the estates there in controversy vested upon the execution of the instruments construed. Whatever may have been said, therefore, especially in O'Day v. Meadows, supra, in construing section 2876, R. S. 1909, as to the validity of instruments creating estates

of freehold in the future without the creation at the same time and in the same instruments of a particular estate to support them, can have no application here.

Under the rule above announced as to the vesting of estates in præsenti, there is no lack of authority that where a deed is attempted to be made to the heirs of one living that the same is void for uncertainty. Booker v. Tarwater, 138 Ind. 385, 395, 37 N. E. 979; Hall v. Leonard, 18 Mass. (1 Pick.) 27; Morris v. Stephens, 46 Pa. 200. In the Booker Case, supra, the grantees named were "Francis Carrico's heirs"; in the Hall Case, supra, they were "the heirs of Ephraim Leonard"; and in the Morris Case, supra, “the heirs of my son Andrew." In each of these cases the fathers of the heirs referred to were living at the time of the execution of the deeds, which were held, in consequence of said fact, to be void. No case has been found to support a grant to a man's heirs, he being living at the time of the grant. Hall v. Leonard, 1 Pick. (Mass.) 27.

In the light of these well-reasoned authorities, it cannot be held that tenancies in common are created in Mary E. Johnson and the heirs of Thomas Johnson.

In deeds, as in devises, express words are not necessary to create a life estate, but the purpose so to do must clearly appear from the entire instrument. Cross v. Hoch, 149 Mo. 325, 50 S. W. 786; Lewis v. Pitman, 101 Mo. 281, 14 S. W. 52. The construction of the deed in question is not hindered by the employment of different terms or forms of expression, for in the granting, holding, and warranting clauses we find the same language. Taking the deed as a whole, therefore, we have simply to determine whether the language used is sufficient to create a life estate with remainders over. That the words used do not expressly, or by clear implication, create a life estate in Mary E. Johnson is evident, and as much is admitted by appellants, who nevertheless contend, in effect, that the terms employed create an estate tail which, under our statute (section 2872, R. S. 1909), is converted into a life estate in Mary E. Johnson, with remainder in fee to the heirs of Thomas Johnson. Briefly, | an estate tail is an estate of inheritance, descending not to heirs generally, but to the heirs of the grantee's body. In the creation of this estate, therefore, it is necessary to employ words of inheritance as well as of procreation. Tygard v. Hartwell, 204 Mo. 200, 207, 102 S. W. 989; Summet v. City Rea. & Bro. Co., 208 Mo. 501, 106 S. W. 614.

Our reports are replete with much learning as to the origin, development, and destruction by statute of this character of estate, commencing with the case of Farrar v. Christy, 24 Mo. loc. cit. 468, down through many cases, not necessary to be cited here, to Tygard v. Hartwell, supra, and Gray v. Ward, 234 Mo. 291, 297, 136 S. W. 405. An examination of the terms creating the estate in each of these, discloses that words of inheritance as well as procreation have uniformly been used. No estate for life with remainder over having been created by the language used in the deed in question, and the necessary words being absent to create an estate tail, and the said deed containing all the essentials to the creation of a fee-simple title, there is no room for any conclusion other

While in Rines v. Mansfield, 96 Mo. 394, 9 S. W. 798, the court ruled conversely in regard to the special words referred to, and held that the word "children" in the granting clause of a deed meant "heirs," the reason stated for this holding was that it was "a construction forced by the habendum clause." Tygard v. Hartwell, 204 Mo. loc. cit. 206, 102 S. W. 989. From this it will be seen that it was only due to the language of the deed in that particular case that the substituted use of one of these words for the other was there authorized.

Parenthetically, it is pertinent to state in this connection that in its general holding the Rines Case is an authority for the construction we have placed upon the deed in the instant case. To illustrate, in the latter case, the deed being to "Mary E. Johnson and the heirs of Thomas Johnson," we hold that the grantee named took the fee, while in the Rines Case, the granting clause being to “M— her children and assigns," and the habendum and warranty clauses to "Mher heirs and assigns," it was held that "M" took the fee, and not as tenant in common with her children.

In Roberts v..Crume, 173 Mo. loc. cit. 580, 73 S. W. 662, supra, the testator devised his real estate to "his daughter and to her heirs," and the court held that the word "heirs" in that connection could not be construed to mean "children," but was used in the same sense as if the gift had been made by deed, and that the will devised the fee, and not a life estate, to the daughter. We quote the rulings in these cases that the reasons for the general rule to be deduced therefrom may appear; it is, in effect, as follows: That the word "heirs" will not be construed to mean "children," except when it is necessary to carry out the clear intention of the testator; and where an estate in fee has been created, as we contend was done in the instant case, it will not be cut down or limited by a subsequent clause, unless the words of limitation are as clear and decisive as the principal language which effects the conveyance of the real estate.

Taking into consideration, therefore, the unequivocal language of the deed under consideration, and the utter absence of any words of limitation, which, considering the circumstances, can have any binding effect, we are of the opinion that in this case the word "heirs" cannot properly be construed to mean "children." This conclusion is in accord with the reasoning of this court in Tygard v. Hartwell, supra.

From all of which it follows that the judgment of the trial court should be affirmed.

SCRIVNER v. MISSOURI PAC. RY. CO. (No. 15964.)

(Supreme Court of Missouri. July 2, 1914. Rehearing denied July 14, 1914.)

1. CARRIERS (§ 315*)-PASSENGERS-INJURIES -PLEADING-PROOF-VARIANCE.

In an action by one injured while riding in a freight car, the railroad company pleaded a contract requiring plaintiff to ride in the caboose, and plaintiff by his reply attempted to avoid the effect of the contract by setting up that he was a minor at the date of its execution; that it was in violation of the statutes of the state where made; that no order from the board of railroad commissioners permitting such contract had been obtained; and that it was without consideration. Held, that evidence tending to show that plaintiff was in the freight car to protect his property from injury was inadmissible, not having been pleaded.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1270, 1281, 1282; Dec. Dig. § 315.*]

2. PLEADING (§ 177*)-REPLY-ADMISSIONS. As plaintiff replied first by a general denial, his plea of matters in confession and avoidance did not admit that there was a valid contract.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 354, 355; Dec. Dig. § 177.*] 3. TRIAL (8_251*)-INSTRUCTIONS-APPLICA BILITY TO PLEADINGS.

The instructions should not be wider than the scope of the pleadings, whatever range the evidence may have taken.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]

4. APPEAL AND ERROR (§ 302*)-PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW-NECESSITY.

Where the court on its own motion modified plaintiff's instruction, the instruction is that of the court, and defendant, to review the propriety of the instruction, must in his motion for new trial assign as error the giving of instructions by the court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1744-1752; Dec. Dig. 302.*]

5. EVIDENCE (§ 20*)-JUDICIAL NOTICE.

It is a matter of common knowledge that it is more hazardous to ride in a freight car loaded with stock and merchandise than in the caboose of the same train.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 24; Dec. Dig. § 20.*]

6. CARRIERS (§ 247*) - CARRIAGE OF PASSENGERS-CONTRACTS-VALIDITY.

Where a contract between a railroad company and a shipper of stock and household goods required the shipper to ride at all times in the caboose, such restriction was reasonable and valid, and the shipper, when riding in the

freight car contrary to the contract, was not a passenger and could not recover for injuries occasioned by an unusually hard coupling. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 984-993; Dec. Dig. § 247.*] 7. CARRIERS (§ 254*)-CARRIAGE OF PASSENGERS-CONTRACTS-CONSTRUCTION.

That a contract between a railroad company and a shipper of household goods and live stock does not avoid other provisions of the constock required the shipper to feed and water the tract requiring the shipper or drover to ride in the caboose at all times the train is in motion. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1020-1026; Dec. Dig. § 254.*] 8. CARRIERS (§ 314*)-CARRIAGE OF PASSENGERS-CONTRACTS-PLEADING.

In an action by a shipper of live stock injured while riding in the freight car instead of the caboose, waiver of the contract requirement with the railroad company that he should ride in the caboose must be pleaded.

[Ed. Note. For other cases, see Carriers, Cent. Dig. $$ 1260, 1270, 1273, 1274, 12761280; Dec. Dig. § 314.*]

In Banc. Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge. Action by Frank Scrivner against the MisFrom a souri Pacific Railway Company. judgment for plaintiff, defendant appeals. Reversed.

Martin L. Clardy, of St. Louis, and Edw. J. White, of Kansas City, for appellant. Boyle, Guthrie, Howell & Smith and Joseph S. Brooks, all of Kansas City, for respondent.

GRAVES, J. Plaintiff, whilst shipping some horses and some farm and household goods from Council Grove, Kan., to Carbondale, Kan., was injured en route near the station of Admire on February 22, 1908. He had loaded the car the day previous and had signed up a written contract entitling him to ride on the train with the car of stock and goods. He and his mother had remained in the car over night before it left Council Grove on the morning of February 22d, at about 7 o'clock. The accident occurred about 9 o'clock of that morning. The plaintiff and his mother were in the freight car, and, just after the train left Admire, the car ahead of plaintiff's car left the track, and plaintiff's car was forced from the track, toppling over, and badly crushing his right leg below the knee. The injuries were such that amputation had to be resorted to, and, owing to the appearance of septic poisoning, a second amputation was required. At the date of accident the plaintiff lacked one day of being 21 years of age. The negligence relied upon is thus stated in the petition:

"That on or about the 22d day of February, defendant's west-bound trains, running over and 1908, plaintiff was a lawful passenger on one of along aforesaid line; that while said train was passing through the said town of Admire, Kan., or running a short distance west thereof, and while plaintiff was a passenger on said train, the defendant carelessly and negligently caused said train to be wrecked, and the car in which plaintiff was riding to be derailed and thrown from its tracks and upon the embankment of

partition therein. What defendant may have been able to show about the condition of this partition we do not know, but it is clear that under the pleadings, which we have purposely set out in full, it had no reason to anticipate such proof. Defendant had the right to conclude that the plaintiff had set out all the things which he had to offer as to why he was not in the caboose, where he was required to be by the terms of the contract pleaded. But plaintiff urges that the violation of the alleged contract was but a matter of contributory negligence upon the part of the plaintiff, and that plaintiff had the right to show all the circumstances to rebut the idea of contributory negligence.

condition of his stock and other things in the car was one of such facts. By this failure the defendant was authorized to come into court prepared to meet only such things as plaintiff by the reply had outlined, and to require it to meet other and further matters was error. In other words, where an answer sets up a new matter to avoid the matter charged in the petition, and the reply undertakes to set up new matter in avoidance of the new matter in the answer, such new matter must be specifically pleaded, and the plaintiff cannot go, by way of evidence, beyond such pleadings for other and different new matter in avoidance. This plaintiff did in this case. In other words, the rule as to matters of avoidance in replies is the same as to matters of avoidance in answers. If by answer the defendant undertakes to avoid the

tiff by way of reply. That reply amounts to this:

"I deny that there was such a contract (vide the general denial in the reply), but, if I did execute the contract, I was not required to ride in the caboose, but because the contract is void."

He then assigns four reasons to sustain the view entertained by him of the invalidity of the contract. In other words, he, by way of reply, undertakes to assign a reason why he was not in the caboose, and that reason was to the effect that he did not have to be there, because the written instrument which said he should ride there was void. He did not assign as his reason for not being in the caboose that either by the contract or by the condition of things in the stock car he was obliged to be in that car rather than in the caboose. The evidence thrust upon the defendant a new and a not to be expected issue, under the pleadings, and the court erred in permitting the testimony over defendant's objec: tions, if there was such a contract, and such contract was a valid one. In other words, the pleadings in this case cut deeper then a mere charge of negligence by defendant (charged by plaintiff), and contributory negligence or assumption of risk by plaintiff (charged by defendant but denied by plaintiff). And the pleadings in the instant case cannot be measured by the rules in cases where the simple charges above stated constitute the pleadings.

We do not go as far as defendant contends, i. e., that the reply amounts to the admission of a valid contract, and, the plaintiff having failed to show its invalidity, he cannot recover. The reply contains a general denial, and this raised the issues of a contract or no contract. The reply is more in the nature of an answer in a note case, where there are pleas of non est factum and payment. Such defenses have been held not to be inconsistent. We do say, however, that in the reply the plaintiff did undertake to allege the facts which might authorize him not to be present in the caboose, but did not charge that the

specifically plead the matters of avoidance, and, in making his proof, will be confined to the matters pleaded. The same rule, both as to proof and pleadings, applies as to replies, where matters of avoidance are relied upon in the reply. There was error in admitting this testimony over the objection of defendant.

[3] II. Not only was there error in admitting this evidence under the pleadings in this cause, but there was also error in submitting such questions to the jury under the pleadings. Instructions should not be broader than the issues made by the pleadings. however wide the scope of the evidence may be. Plaintiff's instruction No. 2 was erroneous as asked and erroneous as slightly modified and given by the court.

[4] Technically speaking, the defendant cannot avail itself of this error, because in the motion for new trial complaint is not made as to instructions given by the court of its own motion. The modification was so slight, the purport of each being exactly the same, it is highly technical to call the one given the instruction of the court of its own motion, yet we shall do so, and rule that the defendant lost its right to complain of this instruction, which puts this matter of the negligent handling of the car at Council Grove, before the jury. This because of not having preserved the point in the motion for new trial. But, as said in the previous paragraph, the evidence itself was incompetent, under the pleadings, and this point is preserved in the motion for a new trial, so that in the end justice may be meted out notwithstanding the oversight in the motion for new trial above stated.

[5, 6] III. The real question in this case is the status of the plaintiff under this contract. For the error assigned in paragraph I, the present judgment would have to be reversed, but defendant urges that the cause should not be remanded. It is clear that under the contract the relationship of carrier and passenger was created, but it is a relationship