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recognize and protect precisely as they would a title derived from any other source.
The bill alleges that, about August 1, 1850, the complain. ant's son, to whom said property had been conveyed, at the complainant's request, made, executed, acknowledged, and delivered to the complainant a deed of said property; that said deed had not been recorded, and that it had been lost by or stolen from the complainant, and the prayer of the bill is, that a decree be entered establishing the complainant's legal title to said property. The answers of both defendants deny that such deed was executed as alleged, or that any such deed ever existed, and the real controversy in the case arises upon the issue of fact thus presented. By the decree of the court below that issue was determined in favor of the complainant, and the question now is, whether that decree is sustained by the evidence.
The evidence as to whether said deed was executed as alleged is conflicting, and is not perhaps in all respects as clear and satisfactory as could be desired, but after giving it careful consideration, we are not prepared to say that it is not Bufficient to warrant the finding of the court below. John E. Roll, the complainant, testifies positively that about the 28th or 30th of July, 1880, Frank P. Roll, his son, executed and delivered to him a deed of said property; that the signature to the deed was in his son's bandwriting; that according to his best recollection the deed was acknowledged before Charles Arnold, a notary public, but as to that he is not positive; that his son banded him said deed after it was executed, and that he placed it in a bureau drawer in his room in the house where he lived, and that he saw it many times afterward in that place of deposit; that he first missed it about July or August, 1883; that his son, who was married shortly after the execution of said deed, and also his wife, lived in the same house with the complainant for several years, and had complete access to said room and bureau drawer, and that after said deed was found to be missing, the complainant charged them with having taken it away, but they denied, or at least refused to admit, having done so.
Charles Arnold testifies that he was a notary public in 1880, and that he remembers Frank P. Roll's coming to his office that year to get an acknowledgment taken, and that while he does not remember whether he actually took said acknowledgment, he thinks he did. He adınits, however, that he did
not examine the deed nor see its contents, nor what land it related to, and his recollection of the transaction seems to be quite indistinct.
William E. Shutt testifies that, about 1884 or 1885, he pur. chased, as the result of a somewhat protracted negotiation with John E. Roll, a small lot which formed a part of the property claimed to have been conveyed by Frank P. Roll to John E. Roll by the deed the existence of which is now in controversy, the price agreed upon being $350; that after agreeing upon the terms of the purchase, he examined the title of said lot as the same appeared of record, and found it to be in Frank P. Roll; that he then went to Frank P. Roll and told him that the title of a piece of property which he had bought of his father was in him, and that as soon as said title was made good, the purchase money was ready; that Frank P. Roll then told the witness that he had nothing to do with said lot; that the property belonged to his father; that he had made to his father a deed for it, which his father said was not on record; that thereupon, at the suggestion of the witness, John E. Roll and Frank P. Roll and wife joined in the conveyance of said lot to the witness, and that the witness paid for it with his check payable to the order of John E. Roll.
The testimony of these witnesses is met by Frank P. Roll with a simple denial. He swears that he never made a deed of the property in question to his father or to any one else; that Charles Arnold never took an acknowledgment of a deed from him to his father; that he sold said lot to Shutt, although he admits that the bargain was made with Shutt by his father; that he received the consideration, although he admits that it was paid by a check, and that he cannot remember who drew the money from the bank or where it went to; and as to the admissions to Shutt in relation to an unrecorded deed to his father, testified to by that witness, he merely says that he does not remember them.
The testimony of Frank P. Roll stands uncorroborated, and besides, the judge of the court below saw the witnesses and had an opportunity of hearing them testify, and therefore had a better opportunity for judging of their relative credibility than we can have. In view of all the facts, we are of the opinion that the said court was justified in holding that the clear preponderance of the evidence was in favor of the complainant, and decreeing accordingly.
The evidence clearly shows that at and before the time of the execution of the mortgage to the Springfield Homestead Association, the complainant was in visible and notorious possession of that part of the property in question in respect to which the decree is in favor of the complainant. Such possession charged said association with notice of the complainant's title, and the court therefore properly held that, as to that property, the mortgage was void as against the complainant.
The decree, being supported by the evidence, will be affirmed.
FRAUDULENT CONVEYANCES are valid between the parties and their representatives: Gilbert v. Stockman, 81 Wis. 602; 29 Am. St. Rep. 922, and cases cited in the note.
POSSESSION OF REALTY IS NOTICE OF TITLE: Lance v. Gorman, 136 Pa. Sto 200; 20 Am. St. Rep. 914; Johnston v. Glancey, 4 Blackf. 94; 28 Am. Dec. 45; but such possession must be notorious and exclusive: Boyce v. McCulloch, 3 Watts & S. 429; 39 Am. Dec. 35. Compare Hardy v. Summers, 10 Gill & J. 316; 32 Am. Dec. 167; Buynard v. Norris, 5 Gill, 468; 46 Am. Dec. 647; Dutton v. Warschauer, 21 Cal. 609; 82 Am. Dec. 765 (cases of ven. dor and purchaser). On the other hand, where the grantor, prior to his discovery of the fraud by which a conveyance of the land had been induced, continued in possession of the land under an agreement with the grantee, it was held that such possession was not constructive notice of his equity arising out of the fraud against one claiming under a mortgage from the grantee: Mateskey v. Feldman, 75 Wis. 103.
MoNulta v. LOOK RIDGE.
(137 ILLINOIS, 270.) RECEIVER OF RAILWAY — LIABILITY OF IN HIS OFFICIAL CAPACITY. - A re
ceiver of a railroad company, who is exercising the franchises of such company and operating its road, is, in his official capacity, amenable to the rules of liability applicable to the company when it is operating the road by virtue of the same franchises. For torts committed by his servants while operating the railroad under his management, he is re
sponsible in such capacity upon the principle of respondeat superior. RECEIVER OF Railway — LIABILITY FOR TORTS OF SERVANTS. The liabil.
ity of a railroad receiver for the torts of his servants in operating the road is a liability in his official capacity only. The damages for such torts cannot be recovered in suits against him personally, but may be recovered in suits in which he is named or designated as receiver, and paid out of the fund or property which the court appointing him has
placed in his possession and under his control. RECEIVER OF Railway — TORTS OF SERVANTS OF - LIABILITY OF RAIL
WAY COMPANY FOR. - A railway company, having no control over the
receiver of its property or his servants, is not, in the absence of an abe solute liability imposed by statute, responsible for the negligence or
torts of the employees of the receiver in operating the road. RECEIVER OF RAILWAY — ACTION AGAINST — JUDGMENT IN REM. – A judg.
ment against a receiver of a railroad company, as receiver, for a liability incurred by his predecessor in office, is not a personal judgment against the receiver, but is in the nature of a judgment in rem against the mat. tors of the receivership or the fund and property which are the subjects
of the trust. RECEIVER OF RAILWAY – LIABILITY FOR Aors of PREDROESSOR. — When liar
bility of a railway receiver is incurred for the torts of his servants in operating the road, and after his resignation is accepted his successor is appointed by the federal court of chancery which appointed him, an action at law by the aggrieved party will lie in the state court against
such successor in his representative capacity. RECEIVER OF RAILWAY APPOINTED BY A FEDERAL COURT - ACTION AGAINST,
WHERE WILL LIE, An action at law can be maintained in a state court against a receiver of a railway appointed by a federal chancery court,
for the torts of the servants of his predecessor in the same receivership. REMEDIAL STATUTE – How CONSTRUED. — In construing a remedial statuto,
its language, so far as is consistent with a fair construction of the law,
should be so interpreted as to promote and advance the remedy. PLEA OF GENERAL ISSUE DOES NOT PUT IN ISSUE either the character in
which plaintiff sues or the character or capacity in which the defendant
is sued. PLEADINGS - ADMISSION BY PLEA OF NOT Guilty. - When, in an action
against the receiver of a railway to recover for personal injury caused by the negligence of the servants of his predecessor in the same receiver. ship, the declaration alleges that at the time of the acciilent such predecessor was receiver 'of such railway by appointment of a certain court, and as such was in possession of and operating the road; that the operators on the trains were the servants of such predecessor as receiver; that on a certain day such predecessor resigned his office as such receiver, and on the same day said court accepted the resignation and appointed the defendant as receiver to succeed his predecessor; that the defendant qualified and entered upon his duties as such receiver and successor, - a plea of not guilty admits not only the representative character of the defendant when sued, but also the allegations of the
declaration as to his predecessor and his own appointment as receiver. INSTRUCTIONS - MEANING OF WORDS“ AT THE TIME." - In an action to
recover for the death of a person killed while attempting to cross a railroad track, an instruction submitting to the jury the question of his due care "at the time" of the accident is not erroneous as limiting the inquiry to the precise moment of collision. The words “at the time" as used in the instruction refer to the whole transaction, including duo care in looking and listening before attempting to cross the track, when
evidence on this point is before the jury. LXSTRUCTIONS - INACCURACY IN, WHEN WILL NOT REVERSE. — Though in.
structions given are faulty and inaccurate, the judgment will not bo reversed when the record demonstrates that they were properly under. stood by the jury, and that it was not misled, nor the parties injuriously affected thereby
ACTION to recover for death caused by negligence. On January 15, 1887, James Molohan and his wife, while attenpting to cross the track of the Wabash, St. Louis, and Pacific Railway Company, in a sleigh, at a public crossing, were struck by an engine belonging to said company, and killed. On July 13, 1887, Lockridge, the defendant in error, as administrator of such deceased persons, brought an action against the plaintiff in error as receiver of said railway company for causing their deaths. The declaration alleged negligence in failing to give proper signals when approaching the crossing; in allowing a growth of trees and shrubbery to remain on the right of way about the crossing, which prevented the persons killed from seeing the engine in time to avoid being struck by it; and also in allowing the engine to be driven at a high and reckless rate of speed. The declaration also alleged "that on the sixteenth day of December, 1886, in a certain cause in equity then pending in the circuit court of the United States for the southern district of Illinois, wherein the Central Trust Company of New York, and others, were complainants, and the Wabash, St. Louis, and Pacific Railway Company, and others, were defendants, one Thomas M. Cooley was, by the order of said court, appointed receiver of the Wabash, St. Louis, and Pacific Railway Company, and was then and there duly qualified as such receiver, and from thenceforward, until the first day of April, A. D. 1837, had possession of, used, and operated said railway,” etc. And such declaration concluded as follows: “And the plaintiff further avers that said Thomas M. Cooley afterwards, to wit, on the first day of April, A. D. 1887, resigned his said office of receiver, as aforesaid, and the said circuit court of the United States for the southern district of Illinois accepted the resignation of said Thoinas M. Cooley as such receiver, and afterwards, to wit, on the first day of April, A. D. 1887, the court last aforesaid, by an order entered in the said cause aforesaid, appointed the defendant, John McNulta, receiver of said Wabash, St. Louis, and Pacific Railway Company; that said defendant, John McNulta, then and there duly qualified as such receiver, and he thenceforward has been in possession of, using, and operating said railway as such receiver." Defendant interposed a plea of not guilty. At the close of plaintiff's testimony, defendant moved the court to instruct the jury that upon the evidence plaintiff was not entitled to recover. The court refused to grant the motion, and defend