to the said lands, and that diligent search had been made by the said Hedden for the said deed from Spalding to himself, and that he could not find the same, but that his best recollection was that at the time he conveyed the said lands to the plaintiff, Graton, he had sent Spalding's deed to the plaintiff, and there was evidence by the plaintiff himself that he had made due and diligent search for the said deed and could not find it, and the further proof that the courthouse of Wayne county had burned in 1892, and with it the record of all the deeds recorded in the recorder's office of said county at that time. In addition to this, it was shown in evidence that Reuben Spalding had been dead for 20 years prior to the trial of this cause, and that his widow had been dead for 18 years, and the plaintiff had been unable to find any of his living relatives, and for that reason he was unable to find the original deed from Lysander Greenman and wife to said Spalding. Hedden testified that he had at one time the deed from Greenman to Spalding to said lands, and that he was under the impression he had sent that deed, with the abstract of title and his own deed, to the plaintiff, and that he had made diligent search therefor among his papers, and could not find the same. The record of this deed was likewise destroyed when the courthouse of Wayne county was burned in 1892. The evidence further shows that Hedden had the old patent from the government to Orrick, the orig. inal patentee, which he thought he had sent to plaintiff when he conveyed the land to plaintiff, but was not sure that he had, but that he had examined for these papers and could not find it: that he, Hedden, had paid the taxes on this land from 1875 to when he purchased the same from Reuben Spalding up to 1894, and the testimony of the plaintiff shows that he had paid all these taxes on this land for the years 1895, 1896, 1897, 1898, and produced the tax receipts therefor; that in September, 1896, he inquired of the collector of Wayne county as to what taxes were due and unpaid on this property, and the collector did not inform him that any taxes were delinquent for the year 1894; that he learned for the first time in October, 1899, that the lands had been sold in 1898 for the taxes of 1894, although he had paid in January, 1899, the taxes for 1898.

This brings us to the other phase of this case. When the collector brought suit for the taxes of 1894 he made as defendants W. Reener Orrick, the original patentee, Henry J. Martin, Lysander B. Greenman, Reuben Spalding, Horace M. Hedden, and Henry C. Graton. The plaintiff, as a part of his case to establish that the defendant, the HollidayKlotz Land & Lumber Company, was making an adverse claim to these lands, offered and read in evidence the sheriff's deed to the said company, purporting to convey all the right, title, and interest of the said Spalding, Hedden, and plaintiff in and to said lands. That this sheriff's deed was absolutely void, be

cause not acknowledged by the sheriff as required by law, there can be no doubt whatever. Ryan v. Carr, 46 Mo. 483; Adams v. Buchanan and Others, 49 Mo. 64.

In this manner plaintiff showed that he and the defendant were claiming title under and from a common source. The contention of the defendant, that by the introduction of this deed without objection the plaintiff proved too much and showed title in the defendant, is, in our opinion, without merit. He simply in this manner showed that the only claim of which he was advised which defendant had to this property was this void sheriff's deed. It is true the defendant cites us to Baird v. Hospital Association, 116 Mo. 419, 22 S. W. 726, as holding that this sheriff's tax deed was not void, but that case does not establish its contention. Black, C. J., speaking for the court, says: "The sheriff's deed was not acknowledged, and for that reason did not convey the interest of Baird. Though invalid as a conveyance, it is good as color of title, and, according to the abstracts of the evidence before us, it was admitted on the trial that the defendant and those under whom it claims have been in the adverse possession of the land ever since 1841, a period of 30 years before the commencement of this suit." It will thus be seen that in that case the sheriff's deed, though void, was admitted simply for the purpose of showing color of title in connection with the adverse possession of 30 years. It is obvious that no such state of facts was shown in this case, because the defendant in this case took said void sheriff's deed on the 2d day of August, 1898, and put it to record on the 2d day of September, 1899, and this action was brought to the February term, 1901. When the plaintiff had established that the record of deeds in Wayne county had been burned or destroyed by the fire which burned the courthouse in 1892, and had made proof of diligent search for the deeds from Spalding to Hedden and Greenman to Spalding, it was entirely competent to establish the existence of those deeds by parol, as was done by the evidence of Hedden and the plaintiff in this case. It is a significant fact that, notwithstanding the destruction of the records of the county when the collector brought suit for the taxes of 1894, he should name Greenman, Spalding. Hedden, Orrick, and Martin as the record owners of the land against which he asked judgment for the taxes for 1894. The evidence of the plaintiff tended to show or establish that Greenman had conveyed to Spalding, and Spalding to Hedden, and Hedden to plaintiff; and the evidence shows that Spalding had been dead for 20 years, and therefore the judgment against him was void, and that Hedden had conveyed all of his title by warranty deed to plaintiff, and hence the defendant did not and could not acquire any title by the purchase of their interests. The evidence further was that neither Orrick nor Martin, during all of the years from 1875 to 1895, had ever paid any taxes or made any

claim of ownership of the land. It is a wellestablished rule in actions of ejectment that, where both parties assert title from a common grantor and no other source, it is not usually necessary for the plaintiff to go back of the common source in order to prove a title upon which he can recover. It is enough that he show a better title through a common source than the defendant can show through the same source. Worley v. Hicks, 161 Mo. 348, 61 S. W. 818, and cases cited.

That the plaintiff was a record owner of the land by virtue of his warranty deed recorded January 7, 1895, before the tax proceedings were begun against him, is obvious. And it would seem that it was the purpose of the attorney for the collector to make every owner of the land from the original patentee, Orrick, down to and including the plaintiff, the defendants in that action, and this action on his part indicates that from some source, an abstract of title or otherwise, he had traced the ownership of this land through the same parties under which the plaintiff claims title. When the defendant purchased at said tax sale, it bought the right, title, and interest of the plaintiff, and took with notice of the plaintiff's claim, as well also as of plaintiff's recorded deed; and, considering the burning of the records and the attitude in which that fire placed the plaintiff by destroying the evidence of his title, and the fact that in ejectment the rule is that the plaintiff must recover upon the strength of his own title, and not upon the weakness of his adversary's, and yet it is sufficient even in ejectment to show that both plaintiff and defendant claim under the common source of title. It seems to us that we violate no rule of justice, in the circumstances of this case, in applying that doctrine to the facts before us, and in holding that as against the defendant, whose only assertion of title is a void deed purporting to convey the plaintiff's interest, it was sufficient to show that plaintiff was claiming the land under a warranty deed duly recorded, and that defendant's only title thereto was the void sheriff's deed above noted. We are strengthened in this view by the further consideration that the state, through its lawmaking power, deems it sufficient in the enforcement of its taxes to make the last record owner the defendant in these tax suits, and, if the recording of plaintiff's deed is deemed sufficient evidence of title to justify the taking of the property when these tax proceedings are reg ular, we can see no reason why the same evidence of title will not suffice, as between such record owner and one who claims his title under that record owner, when the proceedings are void. Not only was the defendant's deed void because the same was not acknowledged as required by law, and the uniform decisions of this court, but it is clear that he acquired no title as against plaintiff by virtue of the judgment in the said tax proceedings, because in that case it is not pretended plaintiff was personally noti

fied of the commencement of the suit, and the files of the court and the record of that case disclose that the only service upon plaintiff was by an order of publication which was not directed to plaintiff, but to one Henry C. "Grafton," and the foundation for said order of publication is an allegation in the petition that Henry C. "Grafton" was a nonresident of the state of Missouri, and no affidavit or statement in the petition charged the plaintiff, "Graton," with being a nonresident of this state. It is true the defendant insists that "Graton" and "Grafton" are idem sonans, and a large number of cases are cited on that subject, but the rule announced by this court in Robson v. Thomas, 55 Mo. 582, to wit, "that names are idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or common or longcontinued usage has by corruption or abbre viation made them identical in pronunciation,” is now the accepted doctrine of this court, and, applying that rule, it cannot be said that "Grafton" and "Graton" are idem sonans. Whelen v. Weaver, 93 Mo. 430, 6 S. W. 220.

The judgment in the tax proceedings as against plaintiff is void for this additional reason. Our conclusion is that the learned circuit court erred in holding that the plaintiff had not shown a presumptively good title as against the defendant, and in dismissing his bill, and that the judgment should have been one establishing the title of plaintiff as against the defendant.

Accordingly, the judgment is reversed, and the cause remanded to be proceeded with in accordance with the views herein expressed All concur.

MISHLER LUMBER CO. v. CRAIG et al. (St. Louis Court of Appeals. Missouri. May 2, 1905.)

TRESPASS-WHAT CONSTITUTES-PLEADING. 1. A petition alleging that defendants entered upon plaintiff's land, and committed trespass on the same by cutting and carrying away timber therefrom without plaintiff's consent, and stating the value of the timber carried away, and praying judgment for treble damages, while insufficient, in failing to allege that defendants had no interest in the timber cut and removed from plaintiff's land, to state a cause of action under Rev. St. 1899, § 4572, authorizing a recovery of treble damages for carrying away timber, in which the trespasser has no interest or right, from the land of another, states a cause of action at common law for the actual value of the timber taken.

2. The taking and carrying away by defendants' servants of timber growing on plaintiff's land constitutes trespass at common law, even though done by mistake, and though not done at defendants' instance or direction or by their

consent.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by the Mishler Lumber Company against J. M. Craig and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Defendant J. M. Craig in 1903 had a cotract with the United States government and

a towboat company to deliver to the towboat company cypress and other kinds of piling at the mouth of St. John's bayou, which empties into the Mississippi river. The evidence of Rogers and Craig is that Rogers had a contract with Craig to make delivery of the piling called for in Craig's contract with the government and the towboat company. The evidence shows that Craig furnished Rogers money with which to pay his choppers and floaters, or paid them on Rogers' order, and that he bought the timber on section 13, township 23, range 15, in New Madrid county, from which the piling was to be cut and floated out into St. John's bayou. Craig was not present at any time while the piling was being cut and floated, but Rogers was, and employed or hired choppers to go upon the land, cut the piling sticks, and float them out into the bayou; the country being submerged at the time with overflow water from the Mississippi river. The choppers, except in a few cases, were paid by the stick for chopping and floating the timber to the bayou. The plaintiff, a corporation, owned sections 15, 21, and 22 in township 23, range 15, from which, the evidence tends to show, some of the men employed by Rogers eut 84 sticks of piling timber, of the value of $84, and floated them out, and they were received by Rogers and Craig and delivered to the towboat company on Craig's contract. The evidence is all one way-that Rogers instructed his employés not to cut timber on plaintiff's land, and, when an employé was not familiar with the line between plaintiff's and defendants' land, Rogers took pains to point out the same to him. The overflow was from 8 to 10 feet deep in the spring of 1903, when the timber was cut, and some of the witnesses testified that the blazes marking the division line were not visible; and we think the evidence clearly shows that none of the employés knowingly cut any timber on the plaintiff's land, and that what was cut was through the mistake of the party cutting it. Craig was not on the land or near it at any time during the season the timber was cut and floated out, nor did he employ any of the hands.

Omitting caption, the petition is as follows: "Plaintiff states that it is a corporation existing under the laws of the state of Missouri, and as such can sue and be sued, and for cause of action states that it was the owner and in possession of the following described lands on the day of

1903, as well as since and prior to that time (said lands described as sections 15, 21, and 22 in township 23, range 15); that these defendants, by their agents and employés, entered upon the above-described lands of plaintiff, and committed trespass on the same, by cutting and carrying away timber therefrom; that the timber so cut and carried away by these defendants was cypress timber, and that most suitable for making piling; that the amount of timber cut and carried away by these defendants was eighty-four trees, and that the reasonable value of the

same was eighty-four dollars; that said defendants went upon the said lands of the plaintiff without its knowledge or consent; that, by said acts of trespass so complained of, the plaintiff has been damaged in the sum of eighty-four dollars, the reasonable price of said timber. Wherefore plaintiff prays judgment against the defendants for the sum of two hundred and fifty dollarstreble the amount of damages sustained-as in such cases made and provided." Defendants filed a general demurrer to the petition which the court overruled. Defendants then filed their answer-a' general denial. At the close of all the evidence, the defendants moved that plaintiff be nonsuited, which was refused.

At the request of plaintiff, the court gave the following instruction: "The court instructs the jury that if you believe and find from the evidence that defendants' agents or employés cut timber or piling from the lands of plaintiff, even though you believe it was done by mistake, then in that event your verdict should be for the plaintiff in such sum as you may find from the evidence the timber to be worth, not exceeding the amount sued for." And refused the following asked by defendant: "The court instructs the jury that if they find from the evidence that Albert Cracraft and Jim Mason did cut the piling, or any part thereof sued for, on the lands of plaintiff, unless you further find that they cut said piling at the instance or direction of defendants, or either of them, or by or with their consent, or either of them, and got said piling off said lands of plaintiff, then your judgment should be for the defendants."

The jury found the issues for plaintiff, and assessed its damages at $84, for which amount the court rendered judgment. Defendants appealed.

Robt. Rutledge, for appellants. T. J. Brown, for respondent.

BLAND, P. J. (after stating the facts). 1. From the foregoing statement it will be perceived that the court treated the action as one at common law to recover the actual value of the timber taken from plaintiff's land, and converted by defendants to their own use. The pleader undertook to bottom his petition on the trespass act (section 4572, Rev. St. 1899), but failed to allege that defendants had no interest in the timber alleged to have been cut and removed from plaintiff's land. For this reason the petition is not good, and failed to state facts to bring it within the provisions of section 4572, supra. However, it states a cause of action at common law for the actual value of the timber taken. Pitt v. Daniel, 82 Mo. App. 168; Hewitt v. Harvey, 46 Mo. 368; Tackett v. Huesman, 19 Mo. 525. And we think the learned trial judge took the proper view of the petition, and correctly declared the law by the instruction given for plaintiff. The instructions asked by defendants and refused would have been good if the suit had

"been bottomed on the trespass section, but, as the petition is not sufficient to state a cause of action under that section, the instraction was properly refused.

2. The witnesses testified that defendants bought the timber on section 13, township 23, range 15, and put the men to work to cut timber on this section. They further testified that this land joined that of plaintiff, described as sections 15, 21, and 22, township 23. Section 13 does not join or even corner with sections 15, 21, or 22 in any township, and the witnesses must have been mistaken as to the numbers of the sections owned by the plaintiff. But the witnesses for both sides testified that the land of plaintiff and defendants joined, and spoke of the dividing line. However this may be, this evidence is of no particular importance, as the controlling issue was whether or not timber had been cut from plaintiff's land by defendants' employés, and delivered to them, and then converted to their own use. The jury so found, and we think there was suffi cient evidence to warrant this finding, and for this reason the defendants' motion for a compulsory nonsuit was properly refused. The judgment is affirmed. All concur.

BAILROADS - CROSSINGS — INJURY TO TEAMNEGLIGENCE OF DRIVER-SIGNALS -STATUTES.

1. In an action for injuries to plaintiff's team in a collision with a railroad train at a crossing, evidence held insufficient to charge the -driver with contributory negligence, as a matter of law.

2. Rev. St. 1899, § 1102, requiring the ring. ing of the bell of a locomotive and the sounding of the whistle at least 80 rods from a railroad crossing, does not exempt a railroad company from such requirement where the train started to back over the crossing in question from a point within the 80-rod limit.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Ed. Spiller against the St. Louis, Memphis & Southeastern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

In December, 1903, Jim Jones was living on plaintiff's farm, in Pemiscot county, and, by permission of plaintiff, had possession of and the privilege of using plaintiff's wagon, harness, and span of work mules. On the 12th of the month, Jones hitched the mules to the wagon, and drove to the city of Caruthersville, and remained there until about 9 o'clock p. m., when he started home, driving the team. The road he traveled to reach his home was a public one, and crossed diagonally over defendant's right of way near to or in the edge of Caruthersville, and at a point where defendant had laid its main

track, two switch tracks, and a spur track; the spur running up to an oilmill. The distance across these tracks was estimated by the witnesses to be from 50 to 60 feet. The night was very dark, and it was snowing or sleeting, and the wind was blowing. Jones testified that when he reached the crossing, before attempting to drive over it, he stopped his team and looked and listened for a train, but neither saw nor heard one in either direction; that he did not hear a locomotive whistle sounded or a bell rung, nor did he hear the noise of a moving train, and, after stopping and looking and listening, he proceeded to cross. Just as he was on the fourth or last track, a train backing cars to the oilmill struck the wagon and one of the mules; breaking up the wagon, and so badly crippling the mule that he was considered worthless, and was abandoned or given away by plaintiff. The evidence on the part of the defendant tends to show that the train was running slowly (from three to four miles per hour); that the whistle was sounded at the proper time, and the bell was ringing as the train approached the crossing; that a switchman, with a lighted lantern in his hand, was standing in the middle of the fourth track, and another switchman, also with a lighted lantern, was farther down the track. The switchman at the crossing testified that he could not see the wagon on account of the darkness, but as soon as he heard it approaching he gave warning, but the warning was too late to avert the collision, and as soon as he discovered the danger he gave a signal to the engineer to stop, and the train was stopped in as short a time and space as possible, but that it was impossible to stop it in time to avoid the collision. He further testified that he did not see Jones until he got on the track, but heard him coming, and hallooed to him, but it was too late; that after the accident he asked Jones what he tried to get over for, when he saw it (the train), and Jones replied that he thought he could "beat it over"; that he told Jones he ought not to take chances like that, and Jones' answer was that he "didn't give a damn"-the team did not belong to him. Jones positively denied that he had any such conversation with the switchman, and denied that the switchman was at the crossing with a lantern. Other witnesses for plaintiff testified that the switchman was not at the Crossing with a lantern, and that the whistle was not sounded, nor the bell rung. Plaintiff's evidence tends to show that by the injury to his mule and wagon he was damaged in the sum of from $170 to $190. Defendant offered an instruction in the nature of a demurrer to the evidence, which the court refused, and the issues were submitted to the jury on a set of instructions against which no point is made. The jury found for plaintiff, and assessed his damages at $170. The appeal is in the usual way.

Moses Whybark, for appellant.

BLAND, P. J. (after stating the facts). Defendant makes two points in support of its motion for a compulsory nonsuit: First, that in the circumstances it was not required to ring the bell or blow the whistle; second, that Jones was guilty of contributory negligence, as shown by all the evidence.

*

The case of Stillson v. Railroad, 67 Mo. 671, is cited and relied on as sustaining the first point. In the Stillson Case the crossing which plaintiff approached was entirely obstructed by a train of cars standing across it. Several feet from the line of the street there was an opening about 10 inches wide, through which plaintiff attempted to pass, and was caught by a backward movement of the train. Whether this movement was caused by an impulse of the locomotive, or on account of an incline in the track, was not shown. On this state of facts the court, at page 677, 67 Mo., said: "But here there was no street crossing. It does not appear that any officer or servant of the road was aware that the plaintiff or any one else was proposing or attempting to cross at the point where the injury to plaintiff occurred. It does not appear that any bell was rung or whistle sounded, but this is only required when approaching a crossing. The train was about to leave unobstructed the street crossing, over which several of its cars extended." The case in hand presents an altogether different state of facts. The crossing over which Jones attempted to pass was not obstructed by cars standing across it, nor was there any indication, according to his evidence, that a train was approaching anywhere near. Therefore there was nothing to deter him from attempting to cross, or to indicate to him the presence of danger; and we are wholly unable, from Jones' evidence, to see wherein he was careless. But from the examination of the witnesses on the trial, and the argument of plaintiff's learned counsel in his brief, we draw the inference that, for the reason the train started to back from a point less than 80 rods from the crossing, the trainmen were not required to observe section 1102, Rev. St. 1899, by ringing the bell or sounding the whistle at least 80 rods from the crossing. Such a construction of the statute would be extremely technical and very literal, and clearly against the plain intent of the statute, to wit, to give warning to the traveling public of the approach of a train at a public road crossing. Not only the statute, but ordinary prudence, would require, irrespective of the nearness of a standing train to an unobstructed public crossing, that when the train starts to move in the direction of the crossing, with the purpose of passing over it, the statutory warning should be given of its approach. We think plaintiff's evidence tends to show that the defendant's servants failed to discharge that duty, and both of defendant's points should be ruled against it.

There is a very sharp and marked conflict

in the evidence. That for plaintiff makes a clear case, entitling him to recover. That for defendant convicts Jones of the grossest negligence, and of such a character as would defeat plaintiff's right of recovery. The conflict was a proper matter for settlement by the jury. They have settled it by their verdict, which is conclusive on us.

The judgment is affirmed. All concur.

WERCKMANN et al. v. TAYLOR.

(St. Louis Court of Appeals. Missouri. May 2, 1905.)

APPEAL-REVOCATION OF ALLOWANCE OF APPEAL ACCOUNT STATED.

1. Where an agent called on his principal for the purpose of settling the account between them, and submitted the account, and they went over it, and the principal agreed that all the charges were satisfactory and the account correct, the agent was entitled to recover the balance in his favor shown by the account.

2. One cannot complain of an instruction given at his request.

3. The circuit court has power to revoke, during the term at which it was made, an order allowing an appeal.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Caroline M. Werckmann and others against William H. Taylor. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Campbell & Thompson, for appellant. Wm. H. Clopton, for respondents.

Opinion.

GOODE, J. Plaintiffs Caroline Werckmann and Rose L. Downey are the children and residuary devisees of George C. Werckmann, deceased. Joseph F. Downey is the husband of Rose L. Downey. Said George C. Werckmann died testate in the city of St. Louis in October, 1899, having appointed the defendant, William H. Taylor, executor. The will devised to his two daughters (plaintiffs) two houses and lots on South Broadway, in the city of St. Louis, Nos. 3942, 3944. For two years or more after he qualified as executor, the defendant attended to the collection of the rents of said properties; he states, by the direction and authority of the devisees (plaintiffs), but they say, with their consent for the first year and against their will for the second year. He gave a statement to the devisees January 27, 1902, showing that he had collected rent to the amount of $2,094.55, and had credited himself with $1,004.95, in part disbursed for expenses incurred in caring for the property, paying taxes and other items, and in part retained for his own compensation. This left a balance of $1,089.60 due the two daughters, as devisees and owners of the premises. His statement also showed he had paid each of said parties $544.80 in cash, thus balancing the account. The disputed items of the ac