(232 S.W.)

lowing memoranda thereon made by the recorder of deeds:

"Red dash after the word 'St. Louis' denotes that at this point in the original deed a part of the sheet was cut off, the edge passing through a line of writing which could not be read. Red dash after the word 'according' shows that from here on it had been pasted to main deed, including sheet which was cut off and also had the acknowledgment on it. "Filed August 21, 1906.

"Vic. D. Dierker, Recorder. "Recorded in Book No. 94, page 31."

The defendant Huning objected to the introduction in evidence of this declaration, because it was recorded more than 10 years after the conveyance to Mrs, Huning, and 20 years after the absolute conveyances to Kossuth Morgner, by his father, Albin; that there is no evidence that defendant Huning had any knowledge of it prior to its being re

It is not disputed that both deeds were duly acknowledged and recorded about the time they were made. March 27, 1896, Kossuth Morgner, as trustee for his wife, Emma Morgner, and said Emma Morgner, conveyed by general warranty deed the property in question and other property to his sister, Adelhaide Huning, wife of defendant August R. Huning, for the recited consideration of $1. This deed contained no reference to any trust for the grandchildren, but was absolute warranty deed on its face. At that time, the evidence tends to prove the property conveyed was much incumbered with deeds of trust to secure notes made by said Kossuth Morgner, also taxes. Subsequently, Mrs. Huning sold various tracts of said property, and paid off such taxes and incumbrances, including those on the remaining tracts, which are the ones in suit. June 25, 1902, Kossuth Morgner brought suit against his sister, Adelhaide Huning, to recover the prop-corded, and no evidence that it was ever deerty, alleging that said conveyance to her made by his wife and himself, as trustee, was intended to be and was in trust for him, the said Kossuth. Judgment in this suit was subsequently, on March 14th, rendered for the defendant in said circuit court. Afterwards, on August 21, 1906, there was filed in said recorder's office a declaration of trust signed by said Kossuth Morgner, without date, but purporting to have been acknowledged April 26, 1883, reciting the conveyances made on December 8, 1882, to said Kossuth Morgner, by said Albin Morgner, and stating, among other things, that said conveyances were made for the use and benefit of said Kossuth, for the life of said Albin Morgner, with remainder in fee, in such of the grandchildren of sand Albin Kossuth, "as are now, or might be in existence." This declaration also provided that the grandchildren should take per stirpes and not per capita. It also contained the following, among other provisions:

"Twenty-one hundred shall be credited on the amount that is on lot one according * * to rent contract, after the death of Albin Morgner, and the interest of one hundred and twenty-five doll. shall be credited to said Kossuth Morgner on and every 12th day of December of each year and further agreed that if there should be any dower against said property above described claimed by the wife of said Albin Morgner, Johanna Morgner, then the amount of said dower to be paid from the funds of the estate then on hand, and when the balance of said notes against Kossuth Morgner on the above-described property shall be paid or canceled then the above-described property comes out of the estate which lies in the city of St. Louis, *** and further agreed that in case of the death of Kossuth Morgner then A. W. Windhorst shall act and fulfill the above articles of agreement.

"Kossuth Morgner. [Seal.]"

The original declaration of trust was introduced in evidence and contained the fol

livered by Kossuth Morgner to Albin Morgner or to any one interested in the matter. These objections were overruled and excepted to.

The plaintiffs also introduced in evidence the following letter from Mrs. Huning to her sister, Mrs. Phillips, which was written in German, but translated as follows:

"Aug. 7, 1906.

"Dear Pauline: After trying in vain for years to sell the rest of the property left by father which has been in my hands for ten years, and divide the proceeds among father's heirs, I will in the future divide the income of the property among father's heirs. Will send you and the others your part every three months. property is in good condition and well rented as it is worth much more now than ten years ago. But a small debt still rests against it, which it will take 5 years to pay at 16 dollars monthly in the B. & L. Co.

The

"In hopes that you and your dear ones are doing well, I can say the same about us.

"Julia was on a visit again for the first time, in St. Charles, but she did not stay long enough to pay me a visit.

"By chance I met her mother last week, she told me she would go to Chicago and promised me to come to me for your address, and then both would look you up, as Julie anyway would change her place (position).

"Please remind Stanley that he owes me a letter. With cordial greetings from house to house (to all)

"Your sister,

"St. Charles, Mo., Aug. 7, 1906."

Adelhaide.

Also the following letters from the defendant August R. Huning to plaintiff Stanley Phillips:

"A. R. Huning Dry Goods Co., Dry Goods, Carpets, Rugs, Shoes.

"St. Charles, Mo., Fby. 16, 1907. "Stanley Phillips, Chicago: Inclosed find draft for fifty-one dollars. You will please send receipt. "Respectfully, A. R. Huning."

"The A. R. Huning Dry Goods Co., Dealers in | Windhorst nine, so that his children would get Dry Goods, Boots, Shoes, Oil Cloths,

"A. R. Huning Dry Goods Co., Dry Goods, all the information you want, please write again. Carpets, Rugs, Shoes.

*

(232 S.W.)

She did leave a will, leaving all her property [ trust by said Kossuth Morgner for the grandto you? A. She did, yes. (The wife's will children of said Albin Morgner, under said did not show that she devised this specific prop- absolute deeds of conveyance made to said erty to her husband, but all her property, and Kossuth by said Albin in 1882. That defendher husband, as her executor, inventoried the ant Huning and his wife, and their predecesproperty sued for, as part of her real estate). sors in title, having taken said trust property Q. Then, you don't make claim to the prop-sors erty that is now left? A. No; they can have with actual notice of said trust, and there it, if they can get together. I advised them being no bar by the statute of limitations, a long time ago to take it out of the hands of said defendant, Huning, was charged in law the lawyers. * Q. As I understand, you and equity as holding the property in trust admit that you hold this property, what is left for said grandchildren, and was properly diof it, that came to Mrs. Huning from Kossuth vested of title and required to account and to Morgner, for the benefit of the grandchildren? surrender said property to a new trustee, all A. No, sir; I do not. Q. You claim it as your as required and provided by the decree of the own property? A. I claim it as my property, circuit court. Coffee's Adm'x v. Crouch, 28 as I have it from her will. As I say, I don't want the property, if the children will settle Mo. 106; Turner v. Edmonston, 210 Mo. loc. among themselves. If a deed can be made to cit. 422, 109 S. W. 33, 124 Am. St. Rep. 739; it, I am willing to turn over the money realized Darling v. Potts, 118 Mo. 506, 24 S. W. 461; to them, but I do not make claims to the prop- Condit v. Maxwell, 142 Mo. 266, 44 S. W. 467. erty."

Witness' wife left no other property except the homestead and his store building in St. Charles, which were in her name.

The court found the issues against the defendant Huning, and rendered judgment against him for $3,607.45, the net rents collected after June 29, 1911, the date of his wife's death, and divested him of all title in the real estate sued for, appointed a new trustee to hold the title, and ordered him to sell the property and divide the proceeds among all the grandchildren of said Albin Morgner per stirpes and not per capita. The court further found and decreed that said defendant, Huning, be not required to account for any rents or proceeds of sale prior to the 29th day of June, 1911.

Failing to obtain a new trial, said defendant Huning appealed to this court.

[4] V. Appellant also complains of error, in that, his codefendants were summoned by publication to answer the original petition, and the case was tried on the amended petition, which differed in some respects from the original. But said codefendants are not here complaining of such change in the petition, and appellant, Huning, cannot complain for them. It in no way affected his interests adversely.

Finding no reversible error, we affirm the judgment of the lower court. Let it be so ordered.

WHITE et al. v. WHEELER et al. (No. 20823.)

[1] II. The recitals in the deeds of September, 1885, from Kossuth Morgner and wife to John C. Gmeiner, and from the latter to said Kossuth, as trustee, for the sole and separate use of his wife, Emma, being in the chain of title of defendant Huning and his wife, they were bound by such recitals. Free (Supreme Court of Missouri, Division No. 1. man v. Moffitt, 119 Mo. loc. cit. 302, 25 S. W. 87; Turner v. Edmonston, 210 Mo. loc. cit. 422, 109 S. W. 33, 124 Am. St. Rep. 739.

[2] III. We are also satisfied, from the letters of said defendant and his wife, shown in

evidence, and set forth in our statement of
the facts, that they had actual notice of the
trust in favor of the grandchildren, and rec-
ognized the same and held said property in
subserviency thereto
thereto and not adversely.
Therefore the statute of limitations did not
run against and has not barred the rights of
said grandchildren.

Brokers

June 6, 1921.)

106-Evidence held to show defendants acted as agents for plaintiffs in exchange of lands.

rights in land taken in exchange for plaintiffs' property, evidence held to show that the agents effecting the exchange acted as agents for plaintiffs as well as for the other party to the exchange, and that defendants breached their duty as such agents in having the deed to plaintiffs of the land received in exchange make an exception of the coal and mineral rights in such land, and in receiving from the other party to the exchange a deed to such rights as their commission for effecting the exchange, all without plaintiffs' knowledge until after plaintiffs' deed had been recorded and the exchange

In suit to secure title to coal and mineral

[3] IV. Independently of the belatedly recorded and somewhat suspicious declaration of trust, which we need not consider at all, we hold that the recitals in said deeds of 1885 show that the property was held in consummated.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Circuit Court, Linn County; her husband and her for the coal and mineral. Fred Lamb, Judge.

Suit by John White and another against William N. Wheeler and another. From decree for plaintiffs, defendants appeal. Af

firmed.

She testifies appellant Randolph told her not to mention that contract to respondents unless they mentioned it to her. This testimony was not denied. Appellants were active in procuring the reduction of the incumbrance on the Wells tract to $3,000 and arranging a long

C. M. Kendrick, of Marceline, and Bailey & time loan to replace the one then on the tract. Hart, of Brookfield, for appellants.

John C. Crawley, of Marceline, for spondents.

JAMES T. BLAIR, Judge. This is an appeal from a decree of the Linn circuit court which devests appellants of the legal title to coal and other minerals under a tract of Linn county land and vests that title in respondents. It is undisputed the title to all other interests in the tract, subject to a $3,000 loan, is in respondents as a result of an exchange of properties between respondents and one Wells. In this exchange appellants, who are in the real estate business, figured as agents.

The sufficiency of the petition is not questioned. Neither is it suggested that there is not evidence of facts adequate to justify the decree. As we read the very pointed brief filed by appellants, the sole contention made is that respondents did not sufficiently prove the facts pleaded as the foundation of the relief sought and obtained.

Appellants submitted to respondents an abre-stract of the Wells tract. It is undisputed this abstract showed the full title in Wells, subject only to the incumbrance already mentioned and without reservation or exception of any kind. Respondent John T. White told appellants he would take their opinion as to the title. They did not even then advise him concerning their commission contract with Wells. On February 26, 1917, appellants caused to be prepared a deed drawn to convey respondents' property to Wells. This deed respondents executed, and it was placed in a bank. On the same day appellants caused to be prepared two deeds from Wells and wife one to respondents, which was drawn so as to convey the Wells property "except the coal and mineral under said land"; and one which was drawn to convey to appellant Wheeler the coal and mineral under the Wells tract. There is no pretense respondents were allowed to see either of these deeds. Mr. Wells was then in Michigan, and both deeds were sent to him for his signature. Appellants entered into a contract with respondents to insure the procuring of a long-time loan on the Wells tract in lieu of the existing loan, and respondents moved into their new home. Mr. Wells signed the deeds sent him, and they were sent back to the same bank where respondents' deed to Wells was deposited. Thereafter, appellants procured from the bank all three deeds and took the deed from respondents to Wells and from Wells to repondents to the recorder's office and had them recorded. It is beyond question that respondents never learned never learned of appellants' claim to the coal and mineral under the Wells tract until respondent John T. White received the deed to the Wells tract after it had been taken and caused by appellants to be recorded. Appellants had a trust deed prepared for respondents to sign in order to secure the new loan negotiated upon the Wells tract. This trust deed was seen by respondents when they executed it. In it the whole title purports to be conveyed as security for the new loan. No exception of coal or mineral is contained in it. The deed from Wells and wife which conveyed to appellant Wheeler the rights to the coal and mineral under the tract for which respondents were trading was not recorded until after this suit was brought.

Respondents owned and occupied residence property in Marceline. It was incumbered. Wells owned and occupied a tract of about 35 acres of farm land near Marceline. Appellants were in the real estate business in that city. It is undisputed that in November, 1916, appellants listed the Wells tract for sale or exchange, and that Wells agreed to convey to them the coal and mineral under the tract in case they found a buyer or negotiated an exchange. They made several unsuccessful efforts to sell to buyers from other places. About February 20, 1917, appellants approached respondent John T. White and suggested that an exchange of his property for the Wells tract might be arranged. The evidence is conclusive that nothing was said to White at this time about any expectation of appellants that they would get the coal and mineral rights in the tract. It is fully established that respondent refused to trade unless the incumbrance on the Wells tract was reduced to $3,000, and some binding arrangement made where by this loan would be renewed when it came due a year later, or a new loan negotiated which would run about five years. It is admitted that appellants then sent Mrs. Wells to respondents to forward the exchange. She knew about the contract of appellants for the coal and mineral as their commission for the proposed exchange. She In audition, it is alleged by respondents testifies, and a letter written by her shows, that appellants were acting as their agents that she purposely refrained from mentioning as well as acting for Wells in the exchange. to respondents the contract of appellants with This is denied by appellants. It is undis

(232 S.W.)

4. Municipal corporations 706 (2)-No failure of proof of negligent swerving of auto onto sidewalk by showing of intentional turning in street.

tiff thereon, by a showing that he purposely swerved it, intending to remain in the street, and then back into a garage; the negligence being in continuing, in the direction he had turned, onto the sidewalk.

In

puted respondents paid appellants $25 for | exercise such care, controls in case of an accisome service in connection with the business. dent after repeal of such statute by Laws Respondents contend this was paid as a 1917, p. 403, but before the repealing statute took effect. commission for service in making the exchange. Appellants say it was paid for their service in arranging the loan to which reference has been made. It is to be kept in mind that the value of the equity in each of There is no failure of proof of the allegathe exchanged properties amounted to but a few hundred dollars. It is admitted that the driver of defendant's auto truck negligently tion of the petition, the gist of which is that Randolph broached the exchange to respond-swerved it onto the sidewalk and struck plainent John T. White. It is also undisputed that respondents were not in the attitude of being mere applicants for a loan. It is clear that respondents imposed the require ment concerning the long-time loan as a condition precedent to the making of the exchange of properties at all. The effect of this was to make the loan requirement one condition of the trade and a part of the consideration thereof. It was a condition, therefore, imposed upon Wells, in point of fact. In these circumstances no liability arose against respondents to pay a commission for the loan. While the testimony is conflicting upon the question, this record does not justify a holding that the trial court was wrong in believing respondents' evidence and holding that the $25 was paid upon the only theory which was advanced which showed any obligation that a commission should be paid at all, rather than that it was paid for services for which respondents were not liable.

The decree is not open to the objection made. It is affirmed.

All concur.

ROGLES v. UNITED RYS. CO. (No. 22054.) (Supreme Court of Missouri, Division No. 1. June 6, 1921.)

1. Municipal corporations 706 (6)-Evidence of negligence of driver of auto truck, injuring person on sidewalk, sufficient to go to jury.

Evidence in action for injury to pedestrian, by auto truck going on sidewalk, held sufficient to take question of negligence to jury.

2. Municipal corporations 706 (3) That auto truck runs onto sidewalk is some evidence of negligence.

The mere fact that an auto truck swerved from the street and ran onto the sidewalk, where it injured a pedestrian, is some evidence of negligence, if not gross negligence, of the driver.

3. Municipal corporations
quired in operating auto measured by repeal-
ed statute while still in force.

5. Municipal corporations 706 (8)
@mm
struction held to require finding that swerving
of auto onto sidewalk was caused by negli-
gent operation.

An instruction that, if defendant's servant negligently operated and controlled its auto truck, and said truck "was caused" (instead of "was thereby caused") to swerve from the street onto the sidewalk, and against plaintiff thereon, and plaintiff exercised ordinary care for her safety, defendant is liable, held, as a whole, clearly enough to require, as a condition of recovery, a finding that such swerving onto the sidewalk and running over plaintiff was caused by defendant's negligence in operating the truck.

6. Trial 296 (3)-Doubt in plaintiff's instruction as to necessity of negligence being cause held eliminated by defendant's instructions.

Any doubt as to plaintiff's instruction, that if defendant negligently operated its auto truck, and it "was caused" (instead of "was thereby caused") to swerve from the street and onto the sidewalk, and against plaintiff thereon, etc., not requiring, as a condition of recovery, fendant's negligence in operation, held removed a finding that such swerving was caused by deby defendant's instructions, expressly stating that there could be no verdict for plaintiff, if she was injured by an accident, "and not through the negligence of defendant."

7. Municipal corporations 706 (8)-Instruction in auto accident case, not broader than petition; "operated and controlled."

An instruction, in action for injury from a truck diverted from the street onto the sidewalk, that if defendant negligently operated and controlled the truck, etc., is not broader than the petition, alleging that defendant negligently. operated it; "operated and controlled" meaning substantially the same thing as "operated." 8. Trial 256(10)-In view of petition, instruction sufficiently specific. as to negligence to be found, in absence of request.

The petition, while charging specifically that 705(1)-Care re-injury to a pedestrian was caused by negligent operation of an auto, being general in its charge of negligence in such operation, and there being evidence of various negligent acts of commission and omission in operation, it was enough, in absence of request for more specific finding as to the negligence, to instruct

Laws 1911, p. 330, § 12, par. 9, requiring driver of auto to exercise highest degree of care of a very careful person, and making owner liable for injury to person by failure to

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