McMiens v. United Railways. and watched seven or eight cars pass, and that it was their custom to stop with the front end of the car west of the end of the platform. The plaintiff testified that for two years she had taken the car at that place every two or three weeks, and that she had never noticed the car come down where it came that morning, that they usually stopped the car back by the platform. She further testified: "Q. Now, as you approached this stopping place at Tamm and Manchester Avenues, state whether or not you came along this traveled way across the Frisco and the Missouri Pacific tracks that has been mentioned? A. Yes, sir; I came over the bridge and along that path. "Q. Now, as you neared the platform, did you see a street car coming from the west? A. Yes, sir; I seen a street car coming; I was hurrying to get it. "Q. Now, just state what occurred from the time you noted the car coming until you were injured, in your own way? A. Well, my one little granddaughter ran on and this other one was with me and I was hurrying on, and I went on up this path, and when I got ready to turn, just as I went to turn, the car hit me and that is about the last that I knew of it. "Q. Now, state whether or not you anticipated or expected the car to run down beyond the end of the platform? A. No sir. "By the Court: Were there any other persons there to get on the car at that time? A. I think there were, but I don't know; I know my little granddaughter was up on the platform. "By the Court: At the usual stopping place? A. She had run on ahead of us, the one. "By the Court: She was at the usual stopping place to get on the car; is that it? A. Yes, sir." The defendant asked an instruction in the nature of a demurrer, which was refused. I. There was no sufficient proof of a custom of defendant to stop its cars without projecting the front end McMiens v. United Railways. beyond the platform. The plaintiff had never noticed the cars come as far as they did that morning. Custom. Certainly not; she had no occasion to notice. Mr. Fish, the only other witness, evidently had never noticed where the cars stopped, for he states that, after the injury, he stood there and watched seven or eight cars, none of which projected beyond the platform. Give all the testimony for plaintiff full credit, and it still falls far short of what is necessary to prove a custom of the defendant to so stop its cars. In Pankey v. Railway Co., 180 Mo. App. 185, 1. c. 199, the court said: "To make a custom effective it must be shown to have been general, uniform, certain and notorious, known to the parties or so general and universal in its character that knowledge must be presumed. [Shields v. Railway, 87 Mo. App. 637; Boyd v. Graham, 5 Mo. App. 403; Sweet v. Leach, 6 Ill. App. 212; C. M. & St. P. Ry. Co. v. Lindeman, 143 Fed. 946.]" Doctrine. II. Even if it was the defendant's custom, in stopping for passengers at that point, to so stop its cars, the evidence in this case tends to show that plainHumanitarian tiff and the children were hurrying to get on the platform. There is no showing that there were other persons on the platform. The car, so far as the evidence goes, was not intending to stop there until the child rushed on the platform. The car was probably stopped at the earliest moment after those in charge of it found that it was necessary to stop there. There is no room in this case for the humanitarian doctrine. The car was going east, plaintiff was hurrying north and just turning west to the platform. There was no reason to anticipate that she would get too close to the track. [Keele v. Railroad, 258 Mo. 1. c. 74.] The judgment is affirmed. PER CURIAM:-The foregoing opinion of Roy, C., is adopted as the opinion of the court. All of the judges concur. Swabey v. Boyers. AMELIA SWABEY v. JOSEPH A. BOYERS, Division Two, April 26, 1918. 1. CONTRACTS: Statutes a Part. Laws in force at the time and place of making a contract which affect its validity, performance, discharge or enforcement enter into and form a part of it as if they were expressly referred to or incorporated in it in terms. This rule, it seems, applies to every kind of contract which is the subject of statutory enactment. 2. DEED OF TRUST: Death of Trustee: Interest of Sheriff. In the usual deed of trust, naming the sheriff as successor and authorizing him to sell in the event of the death of the trustee named, the sheriff acquires something more than a mere naked power to sell. If that were all, it could be revoked by the grantor, or it would lapse upon the grantor's death. In such case the sheriff acquires an interest in addition to the mere power to sell. 3. 4. : Exercise of Power: Successor. It is not necessary, upon the death of the trustee named in the usual deed of trust, that the trust should devolve at once upon the successor. It is necessary only that the trust shall not fail for the want of a trustee. The succession may occur immediately upon the death of the trustee named, or after an interval, and is dependent not alone upon the contingency of the failure of the original trustee, but upon the further contingency of a demand of foreclosure after default. That is the evident intention of the parties to such an instrument. [Distinguishing Miller v. Bank, 235 Mo. 582, and Feller v. Lee, 225 Mo. 319.] -:Successor Named By Instrument: Sale by Court's Appointee. The power to sell under a deed of trust is a matter of convention and contract between the parties, who are authorized to select their own trustee; and if they in the instrument have named a successor, in case of the death of the trustee named, the court cannot, upon said trustee's death, disregard the successor and appoint another as trustee and authorize him to execute the power, but the sale can be made only by such successor if he is available and willing to execute the trust. Swabey v. Boyers. 5. 6. : -: Sheriff. The habendum clause of the deed of trust was "to the said party of the second part and to his successors hereinafter designated and to the assigns of him and his successors forever," and provided that "the said party of the second part, or in case of his . .'. death . . . the then acting sheriff . may proceed to sell" and upon such sale "shall execute a deed . . and any deed made by the trustee or his successor in pursuance to the powers herein contained, shall," etc. Held, that the intention of the parties was that the sheriff should be the successor, and he had the same interest and the same complete power to execute the trust as would the trustee named had he survived to the date of foreclosure; and since the trustee, and the sheriff as his successor, were vested, not with a mere naked power to sell, but with an interest and power to execute the trust, including a sale and a conveyance, the trustee appointed by the court, different from the successor named, had no power to sell. : : Appointment by Court. The statute (Secs. 11919 and 11920, R. S. 1909) declaring that "if any trustee in such deed of trust die" the court may appoint some one to execute the trust, does not mean that, if the deed of trust names a trustee and an ascertainable successor in case of his death, the court may appoint a trustee upon the death of the trustee named, and thereby ignore such successor, but it means that the court may appoint a trustee when no one designated as successor by the instrument can or will execute the trust. Appeal from St. Louis City Circuit Court.-Hon. Thomas C. Hennings, Judge. REVERSED AND REMANDED. James T. Roberts for appellant. In view of the fact that the deed of trust from Boyers to Kotthoff, trustee, expressly conveyed the property to "the said party of the second part, and to his successor as hereinafter designated and to the assigns of him and of his successor, forever" and further provided that "in case of his [Kotthoff's] absence, death, refusal to act or disability in any wise the then acting sheriff of the city of St. Louis, Missouri" should execute the trust therein and thereby created, the sale by Wanstrath was made in violation of the express Swabey v. Boyers. terms of the deed of trust and conveyed no title; and, therefore, under the agreed statement of facts, the title is still in the appellant. 2 Jones on Mortgages, sec. 1774; Bacigalupo v. Lallement, 7 Mo. App. 595; White v. Stephens, 77 Mo. 452; Hughes v. Davis, 85 S. W. 1161; Washington Co. v. Railroad, 100 Am. Dec. 710; Trust Co. v. Fisher, 106 Ill. 189; Singer Mfg. Co. v. Chalmers, 2 Utah, 542; Dunham v. Hartman, 153 Mọ. 625; Graham v. King, 50 Mo. 22; Cassaday v. Wallace, 102 Mo. 550; Polliham v. Reveley, 181 Mo. 622; Dolbear v. Norduft, 84 Mo. 619; Landrum v. Bank, 63 Mo. 48; Bales v. Perry, 51 Mo. 449; Whittlesey v. Hughes, 39 Mo. 13; McKnight v. Wimer, 38 Mo. 132; Perry on Trusts (5 Ed.), secs. 602-x and 602-p; Kelsey v. Bank, 166 Mo. 157. O. J. Mudd for respondent. (1) The court had authority to substitute Wanstrath, trustee, in place of Kotthoff, who died. R. S. 1909, secs. 11919, 11920. (2) In proceeding under these sections, the court rightly proceeds ex parte, on the affidavit of "any person interested in the debt" secured in the deed of trust, and, as no adversary proceeding is intended, no notice is required to any person. Martin v. Paxson, 66 Mo. 260; Thompson v. Foerstel, 10 Mo. App. 290; Rothenberger v. Garrett, 224 Mo. 189; Stone v. Railroad, 261 Mo. 61. (3) The trustee is vested with the fee and has powers and rights not found in the sheriff, who is clothed only with a contingent power of sale, so that the appointment of a substitute on the death of the trustee is needed, notwithstanding the contingent power of sale in the sheriff and the authority of the latter to foreclose. Johnson v. Houston, 47 Mo. 227; Rothenberger v. Garrett, 224 Mo. 196; Chouteau v. Boughton, 100 Mo. 406; Meyer v. Hale, 17 Mo. App. 204; Miller v. Bank, 235 Mo. 530. (4) The statute is a part of the deed of trust with like effect as if its pertinent provisions had been adopted by the grantor and written into the deed. 2 Page |