to the claim of the Illinois Central Railroad Company: 19 Am. & Eng. Ency. of Law, 899, and note; Englewood v. Chicago etc. R. R. Co., 117 Ill. 611, 6 N. E. 684; Dietrichs v. Lincoln etc. Co., 13 Neb. 361, 13 N. W. 624; Gottschalk v. Lincoln etc. Co., 14 Neb. 389, 15 N. W. 695; Kip v. New York, 67 N. Y. 227; 1 Elliott on Railroads, sec. 37; 1 Rorer on Railroads, p. 36. Even 'the right to place rails upon a road or street, and use it in the operation of a railroad, can only be granted expressly or by necessary implication, and the use must be reasonable, and such as was clearly contemplated': 3 Elliott on Railroads, sec. 1076, and the authorities it cites in note 1, p. 1613. In Edmonds v. Baltimore etc., 114 U. S. 461, 5 Sup. Ct. Rep. 1100, 29 L. ed. 216, it is said: 'It is not known to any member of this court that any railroad company has ever claimed to use the streets of an incorporated city, or any part of them, without express authority from some one legislative body.' Where is any express authority in this record Nowhere.

“To my mind it is manifest: 1. That the New Orleans, Jackson and Great Northern Railroad Company, if it were now operating this road, could not, under its charter of 1852, containing the clause relied on, do the act sought to be done here. Repeating that clause it reads as follows: "That said company are hereby invested with all rights and powers necessary for the construction, repair and maintenance of said railroad through this state.' Is it reasonable to suppose that the legislature, in the language used, even if it were used now at this date, had any contemplation of conferring power to undermine the streets of a city? Water mains for the sale of water were unknown here in 1852. 2. If the power exists, it can only be exercised when necessary, and it is not necessary under the facts of this case. If not regarded necessary for fifty years, why is it so now? 3. If necessary now, it is still the exercise of a franchise which cannot be availed of by the lessee, and the lessor is not a party. The act of 1882 does not authorize the lease of any franchise. 4. The warehouse company being without power, the railroad company will not be allowed to combine with it to evade the law."

A Railroad Company has the right to occupy any portion of its right of way when necessary for railroad purposes. Occupancy of its right of way by a railroad corporation for the purposes of a water tank, when necessary, is proper, and the owner of the fee cannot object thereto: Railroad v. French, 100 Tenn. 209, 66 Am. St. Rep. 752. And a railroad company has a right to dig a well upon its right of way, and use the water for railway purposes: Hougan ▼. Milwaukee etc. R. R. Co., 35 Iowa, 558, 14 Am. Rep. 502.

MARX v. JORDAN.

[84 Miss. 334, 36 South. 386.]

DEEDS-Record of as Notice.-If the name of one person is inserted in a deed as the grantor, but it is signed, acknowledged and delivered by another person not mentioned in the body of the deed, the record thereof is not constructive notice to a subsequent purchaser that it is the deed of the person who signed it. (p. 458.)

E. S., J. T. and H. W. M. Drake, for the appellants.

C. A. French, for the appellee.

336 WHITFIELD, C. J. In the alleged trust deed to M. Levy, trustee for the benefit of Henry Marx & Sons, of date March 3, 1902, the granting clause of the deed expressly names as the sole grantors Frank Bowie and Frances Bowie. In the reciting part of the trust deed it is stated that they are indebted in the sum of one hundred and thirty-nine dollars and seventy cents, "evidenced by their note." At the conclusion of the trust deed it is recited that, "In testimony whereof the said party of the first part set their hands," etc., in the plural.

From this simple statement of the exact instrument before us, several things are evident.

1. This is not the case of a deed in which the grantors are not named. Both grantors are expressly named in the reciting part of the instrument, and in the granting clause of the instrument, and in the conclusion of the instrument; "said party of the first part," in the last, meaning, of course, the previously recited grantors, Frank Bowie and Frances Bowie.

337 2. This is not the case of a wife seeking to convey her separate estate, in which the husband's name does not appear as grantor, but in which his name is signed to the deed, and his acknowledgment duly taken; nor one in which the husband, though not named as grantor, and not having signed the deed in the proper place for signature together with the wife, declares after the signature of the wife in writing, "that he hereby consents to the above obligation of his wife," and signs that and acknowledges it, as was the case in the cases of Stone v. Montgomery, 35 Miss. 83, and Armstrong v. Stovall, 26 Miss. 275. It may just as well be noted, besides, that in these two cases the court seems to have proceeded quite as much

upon the idea that the husband would be estopped, by what he had done, to deny that he had consented, as upon the idea that what he did amounted originally to an execution of the deed.

3. This is not the case in which the scrivener intended to write the name of a particular party (David Bowie), but wrote his name wrong. There is no mistake of that sort here. It is perfectly plain that the scrivener meant to write "Frank Bowie" and "Frances Bowie," and to write them as the names of those two persons, and that he did not intend to write the name of David Bowie in the deed at all. He manifestly supposed that Frank Bowie and Frances Bowie were the grantors to be bound, and he wrote that intention plainly and clearly down. It may be quite true that he made a mistake in supposing Frank Bowie and Frances Bowie were to be the grantors; but that mistake cannot convert an instrument plainly declaring that Frank Bowie and Frances Bowie executed the instrument, and that they alone executed it as grantors, into an instrument made by a party who was not recited as a grantor in it, who clearly was not intended to be a grantor in it, but who, in some curious way, signed and acknowledged it. The deed is, and must be-that is, the deed before us, with its particular recitals-the deed of the parties who are expressly declared 338 to be the grantors, who expressly granted the things conveyed, and who alone anywhere in it appear to have been intended as grantors.

4. And, finally, this is the case of a deed in which, therefore, the grantors are expressly recited in it. Said grantors expressly conveyed by a deed effectual only as against them. Is it possible that the fact that David Bowie signed such a deed, effectual only for such a purpose, and acknowledged it, can make such a deed his deed? Manifestly not. The testimony in the case shows that Frank and Frances Bowie were husband and wife, and that David Bowie was their son. It is not, therefore, a case of mistaken identity on the part of the scrivener. He wrote exactly what he meant to write. He wrote a deed which could only bind the parties expressly named therein as grantors: See the authorities collected in 1 Devlin on Deeds, secs. 194-206. See, also, the Alabama cases cited in the brief of counsel for appellee.

The precise question presented for adjudication here is, Did this alleged trust deed to Henry Marx & Sons, having been recorded, impart notice to third parties? Was the appellee

notified by the record of such an instrument that it was the deed of David Bowie? We are clearly of the opinion that no such notice was imparted.

Affirmed.

The Signing of a Conveyance by one not described therein as grantor is said to be wholly inoperative. At most it manifests the consent of such signer that another party described in the conveyance as a grantor may execute it: Stone v. Sledge, 87 Tex. 49, 47 Am. St. Rep. 65. See, too, the note to Payne v. Parker, 25 Am. Dec. 226.

The Effect of the Defective Recording of legal instruments upon the rights of third persons is discussed in the monographic note to Koch v. West, 96 Am. St. Rep. 397-406. See, too, the recent cases of Agurs v. Belcher, 111 La. 378, 100 Am. St. Rep. 485; Roberson v. The Downing Co., 120 Ga. 833, 102 Am. St. Rep. 128.

HARTZOG v. WESTERN UNION TELEGRAPH CO. [84 Miss. 448, 36 South. 539.]

TELEGRAPH COMPANIES-Claim for Damages-Time for Filing. A stipulation in a contract for the transmission of a telegram, that the telegraph company will not be liable for damages in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission, is valid and binding. (p. 459.)

K. McInnis, G. B. Power and Alexander & Alexander, for the appellant.

Harris & Powell, for the appellee.

450 CALHOON, J. A stipulation in the contract for the transmission of a telegram, that the company would not be liable for damages "in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission," is valid and binding. This is precisely so decided in Clement v. Western Union Tel. Co., 77 Miss. 747, 27 South. 603, which is in keeping with the decisions of this court in kindred matters of contract limitations as to express companies; in Southern Express Co. v. Hunnicutt, 54 Miss. 566, 28 Am. Rep. 385; and, as to life insurance companies, in Universal Life Ins. Co. v. Whitehead, 58 Miss. 226, 38 Am. Rep. 322; and in Bonner v. Mutual Life Ins. Co. (this day delivered), 36 South. 538. Our conclusion makes it unnecessary to

give our views of the instructions or as to whether the facts in the record before us warrant punitive damages.

Affirmed.

▲ Stipulation in a Contract Between a Telegraph Company and the sender of a message that the company shall not be liable for damages in any case if the claim is not presented in writing within sixty days after the message is filed is, according to the better opinion, invalid: Davis v. Western Union Tel. Co., 107 Ky. 527, 92 Am. St. Rep. 371, and cases cited in the cross-reference note thereto.