the partition suit and sets up an equitable and wife until her death in 1907. After her claim to the land.

[Ed. Note.-For other cases, see Equity, Cent. Dig. 88 104-114; Dec. Dig. § 39.*]

4. LIFE ESTATES (§ 8*)—ADVERSE POSSESSION -PERSONS CLAIMING.

Neither a life tenant nor her grantee could claim adversely to the remainderman, so that limitations would not begin to run in favor of one holding adversely through the life tenant

until the death of the life tenant.

[Ed. Note. For other cases, see Life Estates, Cent. Dig. §§ 24-28; Dec. Dig. § 8.*] 5. TRUSTS ($ 89*)-PURCHASE-MONEY TRUSTS -EVIDENCE.

A purchase-money trust can only be established by clear, strong, and unequivocal parol

evidence.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 134-137; Dec. Dig. § 89.*]

death William Frazier continued in the

possession of the land, and held such possession until this present suit for partition of the 40 acres conveyed by James Lee to Malinda was instituted by the brothers and sisters of Malinda Frazier, in February, 1908; the said Malinda having died without

issue.

The petition in this case is based upon the theory that the deed from James Lee to Malinda Frazier and the heirs of her body, made in 1860, gave her, under the statute then in force, a life estate, with remainder to her heirs, in default of bodily issue; that the persons seeking partition were her heirs; that the sale of the land by William and Malinda Frazier, in 1862, to James M. Frazier, and the subsequent conveyance from his estate to William Frazier, carried only the life estate of Malinda; and that consequently, upon her death in 1907, the title passed to her heirs. William Frazier, upon his request, was made a party defendant in

6. APPEAL AND ERROR (§ 1009*)-FINDINGS- this partition suit. He filed an answer, in CONCLUSIVENESS-EQUITY CASES.

While the Supreme Court is not bound by the chancellor's findings, it may properly defer in some degree thereto, in view of his superior opportunities for weighing the evidence. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 3970-3978; Dec. Dig.

1009.*]

Appeal from Circuit Court, Sullivan County; Jno. P. Butler, Judge.

Action by Mollie Waddle and others against William Frazier. From a judgment for plaintiffs, defendant appeals. Affirmed.

which he claims to be the owner of the land; that he bought and paid for it with his own money; and that his wife held the title as his trustee. He also pleads adverse possession, under the deeds from the estate of James M. Frazier, since July, 1866. He further says in his answer that if the said Malinda had any right or interest in the land he, as her husband, would, under the statute, be entitled to "one-half of all real estate which her heirs would inherit." He prays that all rights which the parties seeking partition may seem to have, "if any they have," be divested out of them and vested in him, that he be declared the absolute owner, that plaintiffs' petition be dismissed, and for "such other and further orders, judgments, and decrees herein as to the court may seem right and proper." A reply was filed, alleging that William Frazier took the deeds from James M. Frazier's estate with full knowledge of the condition of the title.

When the case came to trial, plaintiffs proved the conveyances as alleged, the death of Malinda Frazier without issue, and the relationship of the parties asking partition. Several witnesses were examined orally upon the issue raised by the defendant as to his having bought the land with his own money, and as to his having claimed it as his.

This is a suit to partition 40 acres of land. The original parties are the collateral heirs of Malinda Frazier, who died in 1907. This 40 acres was conveyed to said Malinda by her father in 1860-to her "and to the heirs of her body." She died without issue. The record shows that in April, 1860, James Lee and wife, by general warranty deed, conveyed to William Frazier, the appellant, the S. W. 4 of the N. E. 4 of section 20, township 62, range 19, in Sullivan county, for a recited consideration of $300. In May, 1860, the said James Lee and wife, by general warranty deed, conveyed the adjoining 40, namely, the S. E. 4 of the said N. E. 4, the same being the land in controversy, to their daughter, Malinda Frazier, wife of said William, "and to the heirs of her body," for a recited consideration of $400. In February, 1862, William Frazier and wife, by general war- The court rendered judgment, which, in ranty deed, conveyed the above-described part, is as follows: "Now, to wit, on this two tracts, 80 acres in all, to James M. 9th day of January, 1909, this cause, having Frazier, brother of said William. In July, been heretofore heard by the court, comes on 1866, said William Frazier purchased the for final determination; and the court, havaforesaid 80 acres from the estate and wid- ing been fully advised in the premises, and ow of said James M. Frazier, and received as to the evidence adduced on the part of the proper conveyance thereof. William Frazier defendants, as well as on the part of plainwent into possession of this 80 acres in 1866, tiffs, being duly advised as to such evidence and occupied same as a home for himself and the facts, finds that the impleading de

dren of such grantee or devisee, equally to be divided between them as tenants in common, in fee; and if there be only one child, then to that one, in fee; and if any child be dead, the part which would have come to him or her, shall go to his or her issue; and if there be no issue, then to his or her heirs."

fendant, William Frazier, has no right, title, | ments shall go, and be vested in the chilclaim, or interest in and to the S. E. 4 of the N. E. 4 of section twenty (20), township sixty-two (62), of range nineteen (19), Sullivan county, Missouri, sought to be partitioned herein; and the court finds that said land was conveyed to Malinda Frazier, wife of said William Frazier, and her bodily heirs, and, although subsequently conveyed to one James M. Frazier by warranty deed, the effect thereof was to vest in the grantee a life estate only in the land in controversy; that, although the defendant, William Frazier, subsequently purchased said land from the administratrix of the estate of James M. Frazier, deceased, he made such purchase with full knowledge and notice of the condition of the title, that a life estate only could be sold or purchased; and that, although he remained in the rightful possession of such land, as a purchaser of his wife's life estate, until the time of her death, to wit, on the 15th day of September, 1907, he is not now entitled to the possession and control thereof, but, on the contrary, the said Malinda Frazier having died without issue of her body, the plaintiffs and defendants, other than said William Frazier, as her collateral heirs, are the owners of the legal title, and entitled to the possession of said land, which is hereby declared to be vested in them."

The judgment further finds that the original parties to the partition suit own the land in fee, finds their respective interests, that the land is not susceptible of division in kind, and orders it sold for cash, and the proceeds divided among the parties entitled thereto. William Frazier appeals.

D. M. Wilson and J. W. Clapp, both of Milan, for appellant. Jno. W. Bingham and W. H. Childers, both of Milan, for respondents.

FERRISS, J. (after stating the facts as above). 1. It is conceded by appellant that, by its terms, the deed from James Lee to Malinda Frazier and the heirs of her body gave her a life estate, with remainder to her heirs in the event she should die without issue, and this by virtue of section 5, c. 32, R. S. 1855, which reads as follows: "Sec. 5. That from and after the passage of this act, where any conveyance or devise shall be made whereby the grantee or devisee shall become seised, in law or equity, of such estate, in any lands or tenements as, under the statute of the thirteenth 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 or 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

[1] It is further conceded in the answer of the appellant that Malinda died without issue of her body, and that the parties seeking partition are her heirs. Appellant contends, however, that as her husband he is entitled, as heir of his wife, to one-half of the land, under section 350, R. S. 1909, which reads thus: "Sec. 350. When a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife's debts."

Obviously the husband could take no interest directly, under this section, in land in which his wife owned a life estate only. Nor could he claim heirship under the law of descent (section 332, R. S. 1909); his wife having left brothers and sisters surviving her. The claim of heirship on the part of appellant must therefore rest on the proposition that section 350, supra, constitutes him an heir of his wife, so as to bring him within the final clause of the law in force in 1855, and quoted above. We think this proposition unsound. Section 350, giving the husband an interest in his wife's real estate, was enacted to equalize the rights of widows and widowers. That which the husband takes under this section is in the nature of dower. His claims are limited to property belonging to her at her death. It does not make him his wife's heir in the full sense of that term, The term "heirs," in its accepted legal signification, means kindred who, by the law of descent, are entitled to an interest in real estate (Ruggles v. Randall, 70 Conn. 44, 38 Atl. 885; Dodge's Appeal, 106 Pa. 216, 51 Am. Rep. 519; Jarboe v. Hey, 122 Mo. loc. cit. 354, 26 S. W. 968), and, under the authorities, excludes the husband or wife, where there is nothing in the connection in which it is used to indicate otherwise. Dodge's Appeal, supra; Fabens v. Fabens, 141 Mass. 395, 5 N. E. 650; Jarboe v. Hey, supra; Clarkson v. Clarkson, 125 Mo. 381, 28 S. W. 446; Am. and Eng. Ency. Law (2d Ed.) vol. 15, p. 329. The word "heir" has been construed in many cases to include the wife or husband, where personal property was involved and the intent was manifest, particularly in provisions in benefit certificates; but with regard to real estate the rule stated above is uniform. There is certainly nothing in the law quoted above from the Revision of 1855

there is nothing in section 350, R. S. 1909, to | belong to a court of equity, there can be no extend the rights of the husband beyond the plain limitations and purposes of that section.

2. Appellant asserts this proposition in his brief: "To maintain partition, the parties seeking it must have either actual or constructive possession. Partition is not a suit to try the title, or to settle the right to a disputed possession. If the defendant, Wm. Frazier, was in the actual possession, claiming the land sought to be partitioned adversely to plaintiffs and his codefendants, partition cannot be maintained."

reason for suspending the proceedings short of complete justice between the parties. Cox v. Smith, 4 [Johns.] Ch. [N. Y.] 275; Hosford v. Merwin, 5 Barb. [N. Y.] 62."

In Dameron v. Jameson, supra, this court says: "It is urged by defendant that partition will not lie when defendant is in adverse possession of the premises of which partition is asked. This doctrine, in cases to which it is applicable, is well settled; but no case can be found in our reports where the principle was applied in a proceeding to establish an equitable title, and also for par[2] Appellant cites several cases to the ef- tition. When the plaintiff asks for partition, fect that partition cannot be rendered in a and the defendant is in the adverse possescause where a party claims adversely to all sion of the property, the courts refuse to those seeking partition, and that in such partition the land between them until plaincase the right to possession must be first de- tiff establishes his title, and a suit in ejecttermined by an action in ejectment. Cham- ment is the proper proceeding for that purberlain v. Waples, 193 Mo. 96, 91 S. W. 934, pose; but where, as here, the plaintiff has an and cases cited. The above rule is based equitable title, and asks the aid of the court upon the proposition that in partition the of equity to establish it, if the court ascercourt does not try title and right to posses-tain that he has an interest, and what that sion, and, further, upon the practical dif- interest is, the doctrine that partition cannot ficulty in enforcing a decree of partition against one in adverse, exclusive possession. Does this rule apply when the adverse outside claimant voluntarily comes into the partition suit as a party, sets up an equitable title to the land, and prays an adjudication thereon, and prays for such other and further orders and decrees as to the court

may seem proper? In this case the appellant asserted equitable ownership of the land, and asked a court of equity to decide between his rights and those of the parties asking partition. The court tried the issue thus presented, and decided it against appellant, and adjudged the title and right to possession to be in the claimants seeking partition. The court, as a court of equity, took jurisdiction, as requested by appellant, of the issue presented by him.

be had when the defendant is in the adverse possession of the premises does not apply. under it the court may put him in possession, The decree establishes plaintiff's title, and and a suit in ejectment becomes necessary [unnecessary]. The court, having acquired jurisdiction of the cause, may proceed to determine the whole controversy by decreeing a partition of the premises. Rozier v. Grif

fith, 31 Mo. 171." To the same effect is 644, 11 S. W. 233, 10 Am. St. Rep. 339. Holloway v. Holloway, 97 Mo. loc. cit. 643,

Appellant invoked the judgment of the court upon his claim to equitable ownership of the land. The judgment decreed the title to be in the other parties, and that they were entitled to possession.

[4] It is obvious that appellant's claim of title by adverse possession is without founda

tion. The deed to him from the administra[3] The general rule applicable to such a trix of James M. Frazier conveyed only the situation is this: When a court of equity life estate of Malinda Frazier, as that was has acquired jurisdiction of a cause for one the only estate conveyed to James M. Frapurpose, it will proceed to do complete jus-zier by the deed from Malinda and William tice between the parties, and determine all Frazier. Neither Malinda, nor any grantee matters in issue, even if this involves adjudicating matters of law. Dameron v. Jameson, 71 Mo. 97; Real Estate Savings Inst. v. Collonious, 63 Mo. 290; Paris v. Haley, 61 Mo. loc. cit. 462; Hagan v. Bank, 182 Mo. loc. cit. 342, 81 S. W. 171. This doctrine has been applied by this court in modification of the rule, above stated, applicable to partition. In Rozier v. Griffith, 31 Mo. 171, this court said: "The fact that the defendant is in possession of the premises, claiming to hold them adversely to the plaintiff, is, in general, a sufficient ground for denying a partition in a court of law; but when the question arises upon an equitable title set up by either of the parties the reason of the

of her life estate, could claim adversely to the remaindermen; hence the statute could not begin to run in favor of appellant until the death of Malinda, in 1907. It follows that appellant, at the time of the institution of this suit, had neither title nor the right to possession. Charles v. Pickens, 214 Mo. loc. cit. 215, 112 S. W. 551, 24 L. R. A. (N. S.) 1054, 127 Am. St. Rep. 687; Dugan v. Follett, 100 Ill. 589; Colvin v. Hauenstein, 110 Mo. 575, 19 S. W. 948; Scott v. Colson, 156 Ala. 450, 47 South. 60. The court below, having acquired jurisdiction of all the issues in the cause, rendered judgment on this issue of adverse possession, and decreed the title and right to possession to be in the col

We find no reversible error.

The

the partition suit. It thus became unneces- [ record.
sary to resort to ejectment to try the ques- judgment, therefore, is affirmed.
tion of title by adverse possession. Coberly
v. Coberly, 189 Mo. 1, 87 S. W. 957.

BROWN, P. J., and KENNISH, J., con

BENJAMIN v. METROPOLITAN ST.

RY. CO.

(Supreme Court of Missouri. Nov. 14, 1912.) 1. CARRIERS (§ 320*)-ACTION FOR INJURIESQUESTION FOR JURY-"SUDDEN" STARTING OF CAR.

[5] 3. Appellant, in his answer, alleged cur. that he bought and paid for the land conveyed to his wife, Malinda, and that she held the title in trust for him. Evidence was introduced upon this issue by both sides. Upon the testimony the court found against appellant. James Lee, the father of Malinda, conveyed 40 acres to William Frazier, April 13, 1860. In May following James Lee conveyed the 40 acres in controversy to Malinda Frazier. The two tracts are adjoining, and together make the 80 acres which William Frazier and his wife occupied as a home, except during the interval from 1862 to 1866, when the 80 acres was in possession of James M. Frazier under deed from Wil

On evidence in an action against a street railroad for injuries from negligently and suddenly starting a car, as plaintiff was entering, construing the word "sudden" to mean happening without notice, coming unexpectedly, held, that the question whether the car was negligently started was for the jury.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217. 1233, 1244, 1248, 13151325; Dec. Dig. § 320.*]

2. CARRIERS (§ 247*)-CARRIAGE OF PASSEN-
GERS WHO ARE PASSENGERS-PERSON EN-
TERING Car.

street car is a passenger.
A person in the act of getting upon a

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. § 247.*

For other definitions, see Words and Phrases, vol. 6, pp. 5218-5227; vol. 8, p. 7748.] 3. CARRIERS (§ 280*)-CARRIAGE OF PASSENGERS CARE REQUIRED.

A carrier owes to a passenger the exercise of the highest degree of care that a prudent person experienced in that business can practicably exercise.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.*] 4. CARRIERS (§ 320*)-CARRIAGE OF PASSENGERS-QUESTION FOR JURY-CARE TOWARD

liam and wife. Appellant claims that he bought the 80 acres at one time from James Lee. No explanation is given for the conveyance of one 40 to his wife. One witness stated that he understood that the 40 was given to her by her father for a home. The language of the deed to her "and to the heirs of her body" is consistent with this, and tends to negative the claim to a resulting trust. We deem it unnecessary to detail the oral testimony. It came from friends and neighbors, who testified, pro and con, to fragments of conversations, and to remarks by James Lee, Malinda and William Frazier, some of them as far back as 50 years. One witness, 59 years old, testified to a conversation heard by him in 1859, before he was 10 years old. The evidence at best is vague and fragmentary. It fails to measure up to the rule declared by this court in King v. Isley, 116 Mo. 155, 22 S. W. 634, where, speaking of the quantum of evidence essential to establish a resulting trust, we say: ""The rule in this court is settled by a uniform line of decisions that parol testimony, in order to accomplish such an object and secure such an end, must be clear, strong, and unequivocal; so definite and positive as to leave no room for doubt in the mind of the chancellor as to the existence of such a trust.' Allen v. On evidence in an action against a street Logan, 96 Mo. 591 [10 S. W. 149]. "These re- railroad for personal injuries, held, that the question whether the plaintiff, a woman of 57 sulting trusts must not be declared upon years, weighing nearly 200 pounds, facing fordoubtful evidence, or even upon a mere pre-ward while entering the car from the platform, ponderance of evidence. could have been thrown forward by its start, should be no room for a reasonable doubt as was for the jury.

* ** *

There

to the facts relied upon to establish the Adams v. Burns, 96 Mo. 361 [10 S.

trust.' W. 26]."

PERSON ENTERING.

The mere fact of starting a street car befor a passenger has taken his seat is not negligence per se, and whether it is negligence to do so in a particular case is a question for the jury.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 13151325; Dec. Dig. § 320.*1

5. CARRIERS (§ 320*)-ACTION FOR INJURIES— QUESTION FOR JURY.

Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, [Ed. Note. For other cases, see Carriers, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 13151325; Dec. Dig. § 320.*]

6. APPEAL AND ERROR (§ 854*)-MOTION FOR NEW TRIAL-GROUND.

[6] We are not bound by the finding of the chancellor; but we properly may defer in some degree to his superior opportunity to weigh the testimony. Our views upon tes-ed, timony of this character in such a case as this are expressed at length in Williams v. Keef, 145 S. W. 425, and need not be further extended here.

Where a motion for a new trial is sustain

and the court states in its order a ground on which it bases its ruling, the appellate court, if it concludes that on the ground stated the new trial should not have been granted, will reverse the order, unless its attention is called to some other ruling of the trial court which justified the order, as it is not bound to We think the judgment is sustained by the search the record to find grounds other than

those assigned by the trial court, but, if re-ed by his own fault and negligence, is insufspondent brings to its notice any other point ficient. sustaining the ruling, it will be considered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. § 854.*]

Contributory negligence is an affirmative defense and must be pleaded to be available, and, to be sufficient, the facts constituting contributory negligence must be pleaded; but, where the plaintiff in making out his own case shows that he was guilty of negligence that contributed to his injuries, no plea of contributory negligence is necessary, and a plea that, if the plaintiff received any injuries at the Graves, J., dissenting, and Ferris, J., distime mentioned in his petition, they were caus-senting in part.