former husband and the second marriage is much less than seven years."

As to burden of proof, the doctrine is thus announced in 19 Ency. of Law (2d Ed.) p. 1209: "As invalidity of marriage cannot be established like any other question of fact, as every presumption must be overcome by satisfactory proof, the burden of proof is always on the party attacking the validity of the marriage." And, further, upon the same page, the author says: "The party having the burden of proof must overcome every presumption in favor of the marriage alleged to be invalid, even though this may require the proof of a negative." On the question of burden of proof, even though it require the proof of a negative, the Supreme Court of the United States, though Justice Swayne, in the case of Patterson v. Gaines et ux., 6 How. (U. S.) 550, 12 L. Ed. 553, says: "But there is no force in this objection for another reason. When, in the progress of a suit in equity, a question of pedigree arises, and there is proof enough, in the opinion of the court, to establish the marriage of the ancestor, the presumption of law is that a child of the marriage is legitimate, and it will be Incumbent upon him who denies it to disprove it, though in doing so he may have to prove a negative."

In cases of the character involved in this record, the following cases declare in favor of the presumption of divorce, although there may be evidence of a former valid marriage: Johnson v. Johnson, 114 Ill. 611, 3 N. E. 232, 55 Am. Rep. 883; Boulden v. McIntire, 119 Ind. 574, 21 N. E. 445; Blanchard v. Lambert, 43 Iowa, 228, 22 Am. Rep. 245; In re Edwards, 58 Iowa, 431, 10 N. W. 793; Leach v. Hall, 95 Iowa, 611, 64 N. W. 790; Parsons v. Grand Lodge, 108 Iowa, 6, 78 N. W. 676; Hall v. Hall, 27 Miss. 458; Klein v. Laudman, 29 Mo. 259; In re Rash, 21 Mont. 170, 53 Pac. 312; Carroll v. Carroll, 20 Tex. 731; Coal Run Coal Co. v. Jones, 127 Ill. 379, 8 N. E. 865, 20 N. E. 89; Harris v. Harris, 8 Ill. App. 57; Cartwright v. McGown, 121 Ill. 388, 12 N. E. 737, 2 Am. St. Rep. 105. Along the same line, in Hynes v. McDermott, 91 N. Y. 459, 43 Am. Rep. 677, it is said: "The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy.

Where

there is enough to create a foundation for the presumption of marriage, it can only be repelled by the most cogent and satisfactory evidence." And Lord Lyndhurst, in Morris v. Daviss, 5 Clark & F. 163, says: "The presumption of law [the presumption of the validity of a marriage shown] is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory, and conclusive." And Lord Campbell said, in Piers v. Piers, 2 H. L. Cas. 331, it could only be negatived "by proving every reason

able possibility." In Harris v. Harris, 8 Ill. App. 57, the court says: "When it is shown that a marriage has been consummated in accordance with the forms of the law, it is to be presumed that no legal impediments existed to their entering into matrimonial relations; and the fact, if shown, that either or both of the parties have been previously married, and of course at a former time having a husband or wife living, does not destroy the prima facie legality of the last marriage. The natural inference in such case is that the former marriage had been legally dissolved, and the burden of showing that it had not been rests upon the party seeking to impeach the last marriage. The law does not impose upon every person contracting a second marriage the necessity of preserving the evidence that the former marriage had been dissolved, either by the death of their former consort or by decree of the court, in order to protect themselves against a bill for divorce or a prosecution for bigamy." Along the same line fall the cases of Yates v. Houston, 3 Tex. 433; Dixon v. People, 18 Mich. 84; Greensborough v. Underhill, 12 Vt. 604. On the other hand, there are cases against this proposition, such as Williams v. Williams, 63 Wis. 58, 23 N. W. 110, 53 Am. Rep. 253; Rhode Island, etc., Co. v. Thorndike, 24 R. I. 105, 52 Atl. 873; Wilson v. Allen, 108 Ga. 275, 33 S. E. 975. Several others are cited, but are not exactly in point.

At the argument of this cause, we are frank to state that, upon this instruction No. 4, we were of opinion that the trial court was in error; but an examination of the authorities has convinced us to the contrary. Under the weight of authority, the second marriage, when shown to have been legally entered into that is, in due form of law-is clothed with every presumption of validity. Such

is the doctrine announced by Bishop. If its validity is attacked, the burden of proving the invalidity is upon the party attacking it; and if, in assuming this burden, which the law demands, it becomes necessary to prove a negative he must do so. The law presumes death after seven years. Why not presume divorce? The courts seem to look upon the presumption of innocence as the stronger and greater presumption, and, in order to sustain the presumption of innocence, will indulge the presumption of divorce, rather than find the party guilty of bigamy. To say the least, the weight of judicial opinion places with the party attacking the burden of proving the invalidity of the second marriage. This is all the instruction required. Again, the facts of the case are not specially inviting to a strained construction. The first wife for nearly 10 years was living with another man, by whom she evidently had two children. She settled with defendants for $100, and hardly thought she was entitled to that sum. She made no claim to more, and upon the receipt of the $100 agreed to and did

testify. It is true that upon hearing of the, death of Johnson, a year afterward, she married the man with whom she had been living for 10 years, using the $100, paid for by defendants for that purpose. But, without going into further detail, we are of opinion that there was no error upon the part of the trial court in giving said instruction. The presumption of innocence, which is stronger than all counter presumptions in such cases, casts the burden of proof upon the party denying the validity of the marriage. even to the extent of proving a negative. This in no way conflicts with the recent case of Snuffer v. Karr, 94 S. W. 983, 197 Mo. 182, for the reason that, in the Snuffer Case, it was an admitted fact that there had been no dissolution of the first marriage. The case was so argued and so presented. The validity of the first marriage was attacked; but, if found to be valid, its nondissolution was a conceded point. This being true, there was no place for presumption of divorce.

5. Plaintiff's instruction No. 1 is vigorously assailed by the defendants. This instruction is as follows: "The court instructs the jury that if they believe from the evidence that John C. B. Johnson at the time he was killed was the husband of the plaintiff, and that this suit was brought within one year after a suit was instituted against the defendants, and that the suit that was dismissed was instituted against the defendants within six months after the death of John C. B. Johnson; and the jury further find from the evidence that the defendant Atchison, Topeka & Santa Fé Railway Company was operating a passenger train over and upon the railroad tracks and right of way of the St. Joseph Terminal Railway Company under and by virtue of a traffic arrangement or lease from said St. Joseph Terminal Railway Company; and the jury further find from the evidence that plaintiff's husband was a section hand in the employ of the St. Joseph Terminal Railway Company, and as such was engaged in the performance of his duties, on or about the track being used by and over which said passenger train was being moved, and that the plaintiff's husband did not see said train or know of said train being operated or moved on said track at the time he was injured; and the jury further find from the evidence that the defendants were moving said train on said track at a rate of speed in excess of five miles per hour, and that said train was moving along said track towards plaintiff's said husband, and that the agents and servants in charge of the operation of said train did not warn plaintiff's said husband of its approach by ringing the bell, and that said servants, agents, and employés saw plaintiff's said husband on the track, or by the exercise of ordinary care could have seen him, in time to have stopped said train before it struck him, and thereby have avoided the injury, and did not do so, that it did not

stop it, or that said agents, servants, and employés saw plaintiff's said husband, or by the exercise of ordinary care could have seen him, in time to have warned plaintiff's said husband, and thereby have avoided the injury, and did not do so (that is, did not so warn him), if you believe plaintiff's said husband was injured, and that said train was being operated within the corporate limits of the city of St. Joseph-then your verdict must be for the plaintiff. In this connection the court instructs you that it is your duty, and you must read all the instructions in the case together, and especially is this true in regard to this instruction, and those given for the defendant stating the rights and duties of the deceased, and of the agents and servants of the defendants."

The gist of the objection is that the instruction is one covering the whole case, and leaves out the question of whether or not plaintiff's husband was, at the time, in the exercise of ordinary care and prudence, in looking out for the train; or, in other words, leaves out the question as to whether or not the deceased was guilty of contributory negligence. It would have been much better for the plaintiff, upon one theory of this case, to have incorporated this element in this instruction; but, upon the theory of the "bumanitarian doctrine," contributory negligence is eliminated from the case, and there was no necessity of incorporating it. But by instructions 6 and 14, given for the defendants, the doctrine of contributory negligence is fairly given, if not in other instructions given for defendants. Also in instructions 2, 4, 7, 8, and 12, modified by the court and given. From the modifications made in each of these instructions, which is in words, "without you find the facts to be as stated in instruction No. 1, given for plaintiff," it is evident the trial court was giving instruction No. 1 on the theory of the "humanitarian doctrine." There is ample evidence to support an instruction upon this doctrine. The evidence shows that this train could have been stopped within 30 feet, and the custom of the men was to leave the track when the train got within 75 or 100 feet of them. Grant it to be true that deceased was negligent, yet the trainmen, under plaintiff's evidence, must have known of this custom of sectionmen to withdraw from danger 75 or 100 feet from the approaching train. If this was the custom, and the trainmen knew it, which they are presumed to have known, then they could have seen plaintiff's husband in a place of known and imminent danger in time to have averted it, either by stopping the train, or awakening him from his lethargy by a shrill sound of the whistle, neither of which was done. Again, the last clause of this instruction specifically directs the jury to consider defendants' instructions as to the duties of deceased. On the whole, we think the instructions pre

sented the case as fairly for the defendants as could be asked.

6. In the reply brief, the defendants raise for the first time the following proposition: "Plaintiff, having alleged a cause of action based upon a joint control of the servants and agents operating the train in question, must stand upon the cause of action as alleged, and will not be permitted to invoke any statements upon which the pleadings are not based, and, the proof failing to show any such joint control, there was a fatal variance between the allegations and the proof, and plaintiff is not entitled to recover against either defendant." This question was not raised in the original brief, and does not seem to have been urged in the court below. It would be a sufficient answer thereto to say that the point was not timely raised; but, going beyond this, there is evidence tending to show that the train inflicting the injury was under the joint control of both defendants. The record shows that the servants of the Santa Fé Company had to await the signal of the pilot, an employé of the terminal company, before they could proceed over the identical track where deceased was killed. They proceeded to pass over this track upon the signal of the terminal company's agent that morning. But, beyond all this, the petition charges the use of the tracks of the terminal company by the Santa Fé Company. It charges the fact that the former is a Missouri corporation and the latter a foreign corporation. It charges, further, a traffic arrangement between the two, which when introduced in evidence amounts to the leasing of the tracks of the terminal company, the Missouri corporation, to the Santa Fé Company, a Kansas corporation. This would make them jointly liable under our statute.

Other points made have been duly examined, but not found of such character as to require specific notice here. The only question we have had about this case was the propriety of instruction No. 4, for plaintiff, hereinabove discussed.

Having reached the conclusion we did upon that point, we have no hesitancy in saying that the case has been fairly tried, and the judgment should be and is affirmed. All concur, except WOODSON, J., not sitting.

KIRKPATRICK v. PEASE et al. (Supreme Court of Missouri. Division No. 1. March 28, 1907.)

1. FRAUDS, STATUTE OF-CONTRACT FOR SALE OF LAND-AUTHORITY OF AGENT.

Under Rev. St. 1899, § 3418 [Ann. St. 1906, p. 1951], providing that no contract for the sale of lands made by an agent shall be binding upon the principal unless the agent is authorized in writing to make the sale, where a husband had no written authority from his wife in reference to the sale of her land, his written authority

Though one gave an agent no written authority to sell her land, where she and her husband corresponded with him relative to a sale to plaintiff, and she knew he was acting for her in selling the land, and that he had made a deed therefor in her name, she having a copy thereof, and she accepted the full purchase price, there was an irrevocable ratification of the agent's acts.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 644-655.] 3. HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE-CONVEYANCES-CONTRACTS.

Since a married woman may sell and make a deed to her separate property as a feme sole, she may authorize an agent to contract a sale and may ratify his acts.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 732-734.]

A deed from an agent to plaintiff insufficient for a lack of acknowledgment and the agent's want of authority was susceptible of specific performance as a contract to sell, the land being specifically described, the parties named and price set out, and the owner having ratified the agent's acts.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 71, 72, 196.] 6. VENDOR AND PURCHASER-RIGHTS OF THIRD PERSONS.

Where an agent made an abortive attempt to convey land to plaintiff, the deed being unacknowledged, and the agent having no written authority to sell, though the vendor ratified his acts, subsequent purchasers, with notice of plaintiff's interest took title subject to plaintiff's equitable right to specific performance of the contract to sell to him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 474-476, 583-586.]

7. SPECIFIC PERFORMANCE-DISCRETION.

Though the granting of specific performance rests in the discretion of the chancellor, it must not be exercised in an arbitrary or capricious manner, but is to be governed by sound legal rules and principles, and hence where a contract to sell land was free from unfairness, overreaching or overkeenness on plaintiff's part, a decree denying him specific performance should be reversed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 17, 18.]

Appeal from Circuit Court, Platte County: A. D. Burnes, Judge.

Suit by W. H. Kirkpatrick against Mary A. O. Pease and others. From a decree for defendants, plaintiff appeals. Reversed and remanded.

Wilson & Wilson and George W. Day, for appellant. James W. Boyd and James H. Hull, for respondents.

LAMM, J. Plaintiff lodged a bill in equity in the Platte circuit court to enforce specific performance of an alleged contract of purchase of 1.97 acres of land, more or less, being part of the S. W. 4 of section 12, township 54, range 37 in Platte county, described in the bill with particularity in courses, distances, and monuments. This parcel of land will hereinafter be referred to as "tract A.” On a hearing, nisi, plaintiff's amended bill was dismissed. Thereupon, he appeals to this court.

Attending to the pleadings, the amended bill proceeds on the theory that defendant Mary A. O. Pease was the owner in her own exclusive and separate right of tract A, an irregular parcel of land on the shores of Bean Lake, a body of water in said Platte county (the description of tract A, being diffuse and technical, need not be set forth, but appears correctly in plaintiff's amended bill); that her codefendant, Charles S. Pease, is her husband; that there was excepted out of tract A a certain indefinite right described in the bill as "a right to use, occupy, and enjoy a water front along the water line on the east side of Bean Lake as conveyed by William Osborne to John Savage by deed recorded in book 21, page 278 of the records in the recorder's office of Platte county"; that said Mary was the granddaughter of Col. William Osborne, and that during her coverture Col. Osborne conveyed tract A, together with a very large body of land, to Mary by a deed of April 6, 1894, duly of record; that said deed was a gift of inheritance in lieu of a devise by will; that defendant W. O. Park was Mary's duly accredited agent, authorized in writing "to look after, rent, care for, sell and otherwise attend to tract A and said larger body of land; that on February 26, 1898, through said Park, as agent, in consideration of $200, she sold said tract A to plaintiff, and delivered possession thereof to him, and he thereupon made valuable improvements; that a deed to tract A was made by Park, but the same was insufficient to convey the legal title to plaintiff, but that Park, as agent, transmitted the consideration to his principal, Mary, which was by her received with full knowledge that it was the purchase price of tract A, and she thereupon ratified and confirmed the act of her agent in the premises; that Mary's husband, in all said things concerning the sale of tract A and the ratification thereof, co-operated with her; that plaintiff under said sale, payment of the purchase money, conveyance, and delivery of possession, together with the acquiescence of Mary, had rested in the belief that he had a sufficient deed for tract A, but that a short time before the bringing of this suit defend

ant Park retired from the said agency and plaintiff was then informed by Mary's new agent (one Petty or Peddie) that Mary's deed was invalid; that thereupon plaintiff was advised by counsel that Petty's contention was true, and plaintiff thereupon applied to Mary for a sufficient deed to rectify the errors in her former conveyance, which, howeven had in law, was alleged to be binding in equity and good conscience as a written contract to convey, but that Mary refused to make a sufficient deed, and thereafter, in March, 1900, sold tract A with other land to her codefendants Rees and Rose, who, in turn, in April of that year, conveyed the same to her codefendant Meyers; that said Rees, Rose, and Meyers, collectively and severally, having received their said deeds with full knowledge of plaintiff's equities and claims, are bound thereby. Wherefore, plaintiff prayed a decree adjudicating that Rose, Rees, and Meyers took their respective deeds subject to plaintiff's equities; and that said conveyances be held void as to tract A; and for specific performance and for all proper general relief.

Defendant Park failed to answer, and it is not clear why he was made a party. Defendants Rees, Rose, and Meyers were brought into the case by an amended billtheir deeds having been executed after the original bill was filed. Mary A. O. Pease answered by way of general denial. Further she specifically denied that her codefendant Park had any authority in writing to sell tract A or any other land for her; and she avers that Park sent her $200, but falsely pretended he had sold some land, but not the land described in the petition; that thereupon she declined to accept said sum, and “immediately after receiving it, she tendered it with interest thereon, if any, to plaintiff," who refused to accept it; that when this suit was instituted, she renewed her tender, and brought said money and interest into court for him. Defendants Charles S. Pease, Rees, Rose, and Meyers, answered tendering the general issue, except said Pease admits being the husband of Mary. The reply denied new matter, and reaffirmed the allegations of plaintiff's amended bill that Mary accepted the consideration with full knowledge of all the facts relating to the purchase and kept the same until the institution of this suit, to wit, for about two years, during which time plaintiff in good faith made valuable improvements on tract A, because of all which, plaintiff says, Mary is estopped to allege a want of a written contract. A surveyor's map used at the trial will serve in understanding the facts. The tract marked on that map "W. H. Kirkpatrick," bisected by a line showing the shore line of Bean Lake in 1840, as we grasp it, is tract A. In tract A, and north of the platted road and some distance away from the present water line of Bean Lake, is the "boathouse," which figures

Questions raised on appeal group themselves into the following: First. Was there a binding contract made between plaintiff and Mary A. O. Pease? Second. If there was any infirmity in the authority of Park to make the contract, was there such ratification by Mrs. Pease as relates back and binds her? Third. If a contract was made, or ratified, was it so definite and certain as to be susceptible of specific enforcement? Fourth. Did Mary A. O. Pease own tract A.; i. e., was her title such as made the contract, if one was made or ratified, susceptible of specific performance? Fifth. Did defendants Rees and Rose purchase with notice of plaintiff's equities, if any? And does defendant Meyers now hold under a conveyance subject to such equities? Sixth. Specific performance being directed to the sound discretion of the chancellor, should it be withheld in this case? The facts essential to the consideration of these questions will appear in the opinion.

1. The first and second questions may be considered together. Attending to them plaintiff's learned counsel concede there was no valid conveyance by Mrs. Pease to plaintiff, but they contend there was written authority from Mrs. Pease authorizing Park to make a contract; and, further, that the legal effect of what was done by him was to make such contract and they rely on ratification. Defendants' learned counsel argue contra. The facts uncovered below on these phases of the case are contained in a long record and cover many writings and matters of detail. Summarized, they are as follows: Park was a banker in Atchison, Kan., and a relative of Mary A. O. Pease. Bean Lake lies on this side of the Missouri river and south

New York as a gift of inheritance. Col. Osborne (now dead) reserved to himself the income and profits arising from these lands during his natural life. The lands so conveyed included tract A, but in fact the grant, as appears aliunde, was subject to a prior conveyance of tract B, and a certain boathouse permit on Bean Lake; all of which will appear presently. The Peases lived at Upper Montclair in New Jersey; and it is conceded on all sides that during the years 1897 and 1898 Park held a written power of attorney, authorizing him to represent Mrs. Pease in the renting and caring for all said real estate. The terms of this power of attorney are such that it is agreed they did not include a power of sale. Under that power Park became her general agent to make improvements, farm, or lease the land, collect rents, pay taxes, etc., and was to have all the income in excess of $700. If the revenue of the farm fell below $700, Park was to have nothing. If they went over $1,000, Mrs. Pease was to have two-thirds of such excess. By a supplemental and later agreement the recompense of Park as agent was placed at the fixed sum of $12.50 per month; and he agreed to perform the duties of agent and of farm overseer or superintendent, subject to the approval of the owner. In 1897 plaintiff lived on an island in Bean Lake, close to tract A, on the shore. We infer he had resided there for many years, kept a fishing and bathing resort there, and, under some undisclosed arrangement, had stables and a feed lot, possibly for his own stock, but certainly for the horses of those who came to his resort to bathe and fish, which stables and feed lot covered a part of tract A, and were accessible from his island. The water