Action by John C. Downing against M. H. Corcoran. From a judgment for plaintiff, defendant appeals. Affirmed. Wilson & Wilson, for appellant. Anderson & Carmack, for respondent. ELLISON, J. Plaintiff by this proceeding sought to enjoin defendant from placing obstructions in a certain private road and maintaining the same so that plaintiff's free use of the road from his adjoining premises was interfered with and in great measure prevented. The trial court granted the injunction. It appears that the parties to the controversy are neighbors, and that each needed a way out to the public road. The plaintiff made use of a passway out, and afterwards defendant, by proceeding in the county court, got this converted into a private road. When the road was established it became free to the use of the public, and was consequently subject to the free and untrammeled use of this plaintiff. Section 9468, Rev. St. 1899. But it appears that defendant began to prevent its free and convenient use by the plaintiff by divers obstructions which hindered such use. First, plaintiff placed a gate at or near the eastern terminus, and defendant erected posts and wire so near thereto that it prevented its use from plaintiff's premises. Plaintiff then made a gate at another place, and then again at another, but each of his efforts to obtain use of the road was circumvented by some corresponding effort on part of defendant to prevent it. He piled rock and dug ditches, and thus annoyed and prevented plaintiff from enjoying the privileges the law vouchsafed to him. In support of his objections to the conclusions of the trial court, defendant states several correct propositions of law, and cites authority in connection therewith, but we are clear that the facts of the case leave them without just application. It is contended that plaintiff is not entitled to connection with a public highway at every point along his line. That may be granted, especially if having connection at every point would inconvenience some other person. But here, plaintiff had a right to reasonably convenient points of connection, and it was wrong in defendant, without excuse or right, to prevent his use of such points, notwithstanding there possibly may have been other places where plaintiff could have gotten through. wrong, whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages." 2 Story's Eq. (6th Ed.) 264; Wood on Nuisances (1st Ed.) § 770; Lakenan v. Ry. Co., 36 Mo. App., loc. cit. 372; Cook v. Ferbert, 145 Mo. 462, 46 S. W. 947; Rude v. St. Louis, 93 Mo. 415, 6 S. W. 257; Dickinson v. Whitiny, 141 Mass. 414, 6 N. E. 92. It is suggested that the acts complained of are now, and were at the beginning of this proceeding, accomplished facts, and that equity will not undertake to restrain the doing of things already done. The case of Carlin v. Wolff, 154 Mo. 539, 51 S. W. 679, 55 S. W. 441, is cited to sustain the suggestion. That case states the general rule of the powerlessness of courts of equity to restrain acts committed before the aid of the court is sought. That rule of law was stated in that case to the single and isolated act of obstructing an alley. But this is a different case. Here the pleader has set up, not a single accomplished act, but a series of acts continued through a space of time, each of them being a new obstructive measure to thwart a move of avoidance which the plaintiff would make to overcome a preceding wrongful act on the part of defendant. The defendant, according to plaintiff's bill, was engaged in a series of continuous wrongs, and the proof sustained the allegations. Surely, in such state of case, the injured party must have a time when he can complain with certainty of redress. If the defendant should obstruct plaintiff at every successive point where he endeavored to gain access to the road, and with the evident intention to continue the process, it would be. a denial of justice to refuse him relief. "An abutting property owner has the same right to the use of the street that the public have, and, in addition thereto, he has rights which are special to himself, as the rights of ingress and egress, and this right is a property right which he may protect. An obstruction in a street or highway may be both a public and a private nuisance, and in such cases the private citizen who has been injured may have injunctive relief. Glaessner v. Brewing Co., 100 Mo. 508, 13 S. W. 707; McDoland v. Newark, 42 N. J. Eq. 136, 7 Atl. 855." Schopp v. St. Louis, 117 Mo. 135, 22 S. W. 898, 20 L. R. A. 783. We have not overlooked the fact that many of the points of plaintiff's case, as made out by testimony in his behalf, are contradicted by the defendant. But we view the evidence as preponderating in plaintiff's favor. It is a case where we readily defer to the conclusions of the trial court. Parker v. Roberts, 116 Mo. 657, 22 S. W. 914. A careful examination of the evidence, in connection with the briefs of the respective counsel, has brought us to the conclusion that the judgment should be affirmed. All concur. MYHER v. MYHER (Kansas City Court of Appeals. May 8, 1905.) Missouri. EXECUTION-JUDG HOMESTEAD-EXEMPTION Rev. St. 1899, § 3616, exempts homesteads from execution; and Acts 1903, p. 240, amended Rev. St. 1899, § 4327a, relative to married women, so as to provide that no property should be exempt from execution based on a judgment for alimony. Held, that the question whether a homestead was exempt from an execution for alimony, where the judgment was rendered prior to the act of 1903, but the execution was not issued until after the statute, would be certified to the Supreme Court, as involving the question of a vested constitutional right. Appeal from Circuit Court, Adair County; N. M. Shelton, Judge. Action by Rosina Myher against E. W. Myher. From an order sustaining defendant's motion to quash a levy under execution based on a judgment in favor of plaintiff, plaintiff appeals. Cause certified to the Supreme Court. A. Doneghy, for appellant. Greenwood, for respondent. Millan & ! BROADDUS, P. J. On March 8, 1904, execution was issued out of the office of the circuit clerk of Adair county against defendant and in favor of plaintiff, returnable on the 16th day of May, 1904, at the May term of the circuit court of that county for said year. On said last-named date the defendant filed in said court the following motion to quash the levy made by the sheriff of said execution and to recall the same, to wit: "Now comes the defendant, and moves the court to quash the levy made in this case, and recall the execution issued on a judgment in favor of Rosina Myher and against the defendant, and made returnable to this term of court, for the following reasons, to wit: Because the defendant is a housekeeper and the head of a family, and, as against said judgment, is entitled to a homestead. That all the land owned by defendant, levied on and advertised for sale by the sheriff of Adair county, is not of the value of $1,500. That he was not notified by the sheriff prior to the levy of said execution of his rights under the law, nor were commissioners appointed to set off a homestead to defendant. Because said judgment upon which said execution was issued has been fully paid and satisfied, and there is nothing due on the same. That said execution was not issued by any one having authority in the premises to order an execution." The parties tried the motion upon the following agreed statement of facts: "That the judgment upon which execution was issued was for alimony, and that said judgment was rendered by the aforesaid circuit court of Adair county, Missouri, at its October term, 1902, against defendant and in favor of the plaintiff in the above-entitled cause; that the land levied on was the homestead of defendant, and acquired prior to the rendering of the judgment for alimony as aforesaid." The only issue raised on the motion was as to whether the homestead of defendant was exempt from execution issued upon a judgment for alimony. The court held that it was so exempt, and sustained defendant's motion, and the plaintiff appealed. Section 3616, Rev. St. 1899 (chapter on "Homesteads"), exempts homesteads from attachment and execution. In 1903 the Leg islature amended section 4327a, c. 51, Rev. St. 1899, relating to married women, so as to make it read as follows: "No property shall be exempt from attachment or execution in a proceeding instituted by a married woman for maintenance, nor from attachment or execution upon a judgment or order issued to enforce a decree in alimony," etc. See Acts 1903, p. 240. As the judgment was, in point of time, prior to the legislative enactment of 1903, the question presented by the record is whether the law in force at the time of the rendition of the judgment exempting defendant's homestead from attachment and execution, or the later enactment, in force at the date of the execution, governs the case. That a statute creating exemption of property from execution may be upheld, unless such property at the time had been set apart to the debtor, was decided in Bramble v. State, 41 Md., loc. cit. 442. In the state of Wisconsin, where the Constitution, like that of Missouri, authorizes the passage of exemption laws by the Legislature, it is held that: "After the Legislature has passed exemption laws in pursuance of the Constitution, it cannot constitutionally abrogate them entirely, without the contemporaneous passage of substitutes." In Georgia, where it appears that the legislative enactments for exemptions of the kind in question are not dependent upon constitutional authority, it is held that "debtors have no vested rights not to pay their debts,” and that "exemptions of their property from legal process for the satisfaction of creditors is but a privilege-mere grace and favor-dependent on the will of the state. Statutory exemptions are subject to be reduced or revoked by the Legislature, and constitutional exemptions by the people, through a change of the organic law." Harris v. Glenn, 56 Ga. 94. In Waples on Homesteads, p. 85, it is said that "all homestead laws are repealable, * * * as the privilege granted is not a vested right; that is, there is no contract between the beneficiary and the state, arising upon his compliance with the required conditions." In O'Brien v. Ash, 169 Mo. 283, 69 S. W. 8, the distinction was drawn between the right to dispose of property by will and the right to own and hold property, and it is there said that "the one is the natural right of the citizen, which, when acquired under existing laws, becomes a vested right, not subject to be defeated by subsequent legisla tion. The other is a creation of legislative enactments, and subject at all times to legislative regulation and change." The contention of the appellant is that, as the exemption law is but a creation of the Legislature, defendant acquired no vested right in his homestead which the Legislature could not take away, and that the enactment of 1903 was effectual to subject such homestead to execution issued on a judgment for alimony. Referring to the case last cited, we do not think a question of natural right is involved; but it seems clear that, as defendant acquired his homestead under an enactment of the Legislature authorized by the Constitution of the state, a question of vested constitutional right is involved. The cause is therefore certified to the Supreme Court. All concur. STEELE et al. v. ROBERTSON. (Supreme Court of Arkansas. April 29, 1905.) CONTRACTS-SALE OF LAND-HOMESTEAD-SPE CIFIC PERFORMANCE ACTIONS NOTICE TO THIRD PARTIES - LIS PENDENS STATUTORY PROVISIONS-BURDEN OF PROOF-EVIDENCE SUFFICIENCY OF. 1. In an action to enforce specific performance of a contract for the sale of land, a defendant vendor alleging that the land was his homestead has the burden of proving the fact. [Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Homestead, § 397.] 2. In an action to enforce specific performance of a contract for the sale of land, where defendant vendor denied the sale, and alleged that the land was his homestead, and that he and his wife had conveyed the same to other parties before the action was begun, evidence examined, and held not to show that the land was their homestead at the time defendant and his wife contracted to sell to plaintiff. 3. Under the express provisions of Act 1903 (Kirby's Dig. § 5149), in order to give an action to enforce specific performance of a contract for the sale of land the effect of lis pendens, it is necessary to file a notice of the pendency of the action in the office of the recorder of deeds of the county wherein the land to be affected by the notice is situated. 4. In an action to enforce specific performance of a contract for the sale of land, interpleaders, alleging that they bought the land without notice of the contract, have the burden of proving the fact. [Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, § 604.] 5. Where, in an action to enforce specific performance of a contract for the sale of land, both of two interpleaders took part in the negotiations leading up to the purchase of the land by them, it was necessary to show that, up to the time they paid the consideration, neither of them had notice of plaintiff's prior contract. 6. Evidence of defendant vendor that he only told one of the interpleaders that plaintiff "was figuring on the property" is insufficient to show lack of notice, in the absence of evidence that the interpleader did not get the information from some other source. 7. Notice to such interpleader, who acted for his associate as well as for himself in consummating the purchase, was, in law, notice to the associate. Appeal from Lee Chancery Court; S. H. Mann, Special Chancellor. Suit by J. T. Robertson against H. L. Steele and others. Judgment for plaintiff, and defendants appeal. Affirmed. W. A. Compton, for appellants. H. F. Roleson, for appellee. RIDDICK, J. This is a suit in equity brought by J. T. Robertson against H. L. Steele for the specific performance of a contract for the conveyance of a house and lot in the town of Marianna, Ark. Steele filed an answer denying that he had sold the land to Robertson. He also alleged that the land in question was his homestead, and that he and his wife had sold and conveyed the same to C. T. Chandler and Sam Harrington, and received payment in full therefor, before the suit of plaintiff was commenced. Chandler and Harrington filed an interplea, asking to be made parties. They alleged that they had, in good faith, and without notice, bought and paid for the property in question, and received a deed therefor, and were entitled to protection as bona fide purchasers without notice. The letters introduced in evidence by the plaintiff from Robertson to Steele and from Steele to Robertson show conclusively to our minds that there was an offer to sell this place made by Steele and accepted by Robertson, and that these letters constitute a valid contract for the sale of the land. Nor do we think there is anything in the record sufficient to overturn the finding of the chancellor that this place was not a homestead. The burden was on defendant to prove that fact. But the only reference in the entire transcript to the matter of homestead is an incidental remark made by the wife of the defendant in her deposition. She was asked if she had executed a deed conveying her homestead to Chandler and Harrington, and she replied: "Yes; I signed the deed conveying my homestead, in the town of Marianna, to Chandler and Harrington." Now, she was not asked if the place was in fact her homestead at that time, nor does she so testify. This deposition was taken in Hope, Ark., to which place she and her husband had gone from Marianna, and where, it seems, he was living at the time he sold the land to Robertson. The fact that his wife, in her deposition, spoke of this place as her homestead, may convey the idea that it was at one time their homestead; but, as they may have moved away and abandoned it as a homestead before they sold it, we are not able to say, from that incidental remark, that it was a homestead at the time Steele contracted to sell it to Robertson. If it was their homestead at that time, it was a fact that could easily have been proved by testimony that it was in fact the home of Steele and his family at that time, but not a witness was asked to state whether in fact it was a homestead, or the home of Steele and his family, at the date of the letters to Robertson; and that shows to our minds that defendants did not rely on this point at the trial, and that it was only brought forward after the case had been tried and lost on other issues. If it was a homestead, defendant did not prove it, and his contention on that point must be overruled. The only remaining question is whether the interplea of Chandler and Harrington can be sustained on the ground that they bought without notice. In saying this, we do not forget the contention of counsel for Robertson that this action against Steele had been commenced before the sale to Chandler and Harrington was consummated. But under the act of 1903 (Kirby's Dig. § 5149), in order to give such action the effect of lis pendens, it was necessary to file a notice of the pendency of the action in the recorder's office, and it is not shown that such notice was filed by plaintiff. So the question of lis pendens passes out, and the decision turns on the question as to whether the interpleaders bought without notice. That fact was alleged in the interplea, and denied by plaintiff in his answer to the interplea. The burden to prove it was on the interpleaders. Now, both Chandler and Harrington took part in the negotiations which led up to the purchase. The negotiations began the day before the suit was brought by Robertson. The sale was consummated and the deed delivered by Steele to Chandler and Harrington about 4 or 5 o'clock the next day, some two or three hours after the suit was brought. The contract for the sale was made by Chandler with Steele some time before noon of that day, when Chandler paid Steele $10 of the purchase money, and took a receipt from him showing that it was a part payment on the land. Chandler and Harrington agreed to pay Steele $600 for the property-$75 in money, and the balance in debts of Steele, for which he had executed mortgages on the property. The remainder of the money-$65-was paid by Harrington at his office in the afternoon when the deed was delivered, Chandler not being present. Now, as both of these interpleaders took part in the negotiations which led to this purchase, it was necessary to show that neither of them had notice up to the time of the payment of the consideration. Chandler testified directly and positively that he had no notice of the Robertson purchase until after the delivery of the deed, and, as there is nothing to contradict his statement, we take it that be had no notice. But Harrington did not testify, and the only testimony bearing on the question of whether he had notice or not is the testimony of Steele, who, on being asked whether before the sale to Chandler and Harrington he had told either of them of the claim of Robertson, responded that he did not say anything to Chandler about it, but that the day before the suit was brought he told Harrington that Robertson "was figuring on the property." In another answer he states that he only told Harrington that Robertson "was figuring on the property." While this may show that Steele did not tell Harrington of the Robertson purchase, there is nothing to show that Harrington did not get the information from some other source. As before stated, the burden was on these interpleaders to show affirmatively that neither of them had notice. They show that Chandler had no notice, but as Harrington acted for himself and Chandler in consummating the purchase, notice to him was, in law, notice also to Chandler; and, as the evidence does not show that he did not know of Robertson's claim before the payment of the consideration to Steele, we are of the opinion that the interpleaders failed to show that they were purchasers without notice, and the judgment of the special chancellor in favor of Robertson must be sustained. Judgment affirmed. DE REITMATTER v. DE REITMATTER. (Supreme Court of Arkansas. April 29, 1905.) DIVORCE-CUSTODY OF CHILDREN-ORDER-EVIDENCE. Plaintiff was granted a divorce from defendant on the grounds of his drunkenness and cruel treatment, and given the custody of the children, a boy, aged 10, and two girls, aged 4 and 6 years respectively. Subsequently, on application for a modification of the decree, defendant showed that he had quit drinking, was amply able to comfortably care for and educate the children, and had great affection for them, though he had no home to which to take them, and expected to place them in a convent if awarded their custody. Plaintiff showed that she and her parents, with whom she was living, were greatly attached to the children, were raising them in comfort and educating them, and were rearing them in the religious faith of their parents. Held, that an order granting defendant the custody of the boy the first week of each month, and permitting defendant to visit the children at his convenience as often as once a week, was as fair an order as he was entitled to. Appeal from Pulaski Chancery Court; Thomas B. Martin, Chancellor. Action for divorce by Mary De Reitmatter against Adolph De Reitmatter. From an order modifying the decree as to the custody of the children, defendant appeals. Affirmed. J. H. Harrod and H. F. Auten, for appellant. Sam Frauenthal and E. M. Merriman, for appellee. HILL, C. J. Mrs. De Reitmatter was granted a divorce from her husband, the appellant, on the grounds of his drunkenness and cruel treatment. She was awarded the custody of their three children, a boy, aged 10, and two girls, aged respectively 6 and 4. This is an appeal from a second application to the chancery court to modify the decree so far as the custody of the children is concerned. The appellant showed that he had abandoned the drink habit entirely, and that he was making ample money to comfortably care for and educate his children, and that he had great affection for them. He claimed that their mother and her family were weaning the affection of his children from him, and teaching them to fear and dislike him. The latter charge was met with contrary testimony, and the chancellor evidently found the charge unsustained by a preponderance of the evidence, and in this he was correct. The mother showed that she was making her home with her parents in Faulkner county, and was working industriously to support her children, and it was shown that her father was in comfortable circumstances and a man of good standing. It was further shown that the mother and grandparents were greatly attached to these children, were raising them in comfort, educating them, and rearing them in the religious faith of their parents. The father conducted a meat market in Argenta, and had no home to take the children to, and expected to place all of them in a convent if their custody was awarded to him. The chancellor denied the custody of the children to the father, but made an order that he be granted the custody of the boy the first week of each month, and that he be permitted to visit the children at his convenience as often as once a week. He appealed from that order. The father would evidently care for his children well, and doubtless they would be well trained and educated in the convent he expected to put them in, but no other rearing could compensate for that found in a religious household presided over by a loving mother and affectionate grandparents. The chancellor gave the appellant as fair an order as he was entitled to, and it is affirmed. 1. Under the express provisions of Kirby's Dig. 2709, where deceased left no children and no creditors, and the real property left by him was a new acquisition, and not an ancestral estate, his widow was entitled to one-half of the estate, both real and personal. 2. Where plaintiff, the widow of decedent, acting under a mistake as to her legal rights, entered into an agreement, without consideration, with decedent's mother, for a division of his estate, whereby plaintiff was to receive only a third thereof, plaintiff being misled by the statements, probably made in good faith, of certain of defendants, that she was only entitled to such third, the agreement was properly set aside. Cross-appeals from Circuit Court, Franklin County, Ozark District; Jeptha H. Evans, Judge. Action by Mary P. Logue against Sarah Terry and others. Judgment for plaintiff, and both sides appeal. Affirmed. This is an action in equity to set aside an agreement for the division of property belonging to the estate of plaintiff's former husband. Plaintiff was the wife of Marion F. Terry, who afterwards died without children, leaving the plaintiff, Mary P. Terry, as his widow, who afterwards married one Logue. Marion Terry also left surviving him his mother, Sarah Terry, and certain brothers and sisters, and certain children of a deceased brother. He owed no debts. After Terry died, his widow, the plaintiff, entered into an agreement with his mother to divide the prop. erty on the basis of one-third to the widow and two-thirds to his mother; and they left the matter to two of their neighbors to make the division, and give each of them such share of the property as, in the opinion of the persons making the division, she was entitled to receive. It seems that all parties to this division acted in good faith, but under the mistake that the widow was only entitled to one-third of the property, and so it was divided in that way, or at least a part of it was so divided. She afterwards brought this suit to recover an additional amount as dower, on the theory that the contract with the mother of her husband, and the subsequent division of the property, was made in ignorance of her rights, and was without consideration. The chancellor sustained her contention, and decreed accordingly. Sam R. Chew, for appellants and cross-appellees. W. W. Cotton and T. A. Pettigrew, for appellee and cross-appellant. RIDDICK, J. (after stating the facts). We are of the opinion that the judgment of the chancellor should be affirmed. The husband of the plaintiff left no children and no creditors. The real property left by him was a new acquisition, and not an ancestral estate. The chancellor therefore, in our opinion, correctly decided that the widow was entitled to one-half of the estate, both real and personal. Kirby's Dig. § 2709. The agreement for a division of the property, which was made between the widow and the mother of Terry, the former owner, was made under a mutual mistake as to the rights of the widow in the estate. The chancellor found that this agreement was without consideration, and "without knowledge on the part of plaintiff as to her legal rights, and that the agreement was in part executed before the commencement of this suit, the extent of the performance being uncertain from the proof." The evidence supports the finding of the chancellor that the agreement in reference to a division of the property was made by plaintiff under a mistake as to her legal rights, and that it was without consideration. The plaintiff was a woman who had no experience in business matters, was entirely ignorant of the law, and was, it seems, to some extent, at least, misled by the statements of certain of the defendants to the effect that |