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deed of February 2, 1854, hereafter mentioned,) "under which deed said conveyance to said defendant Ward was made, had been operative and effective, the joinder of your oratrix in the execution and acknowledgment of said conveyance was wholly unnecessary and without effect."
"The meaning of this last averment is this: On May 1, 1851, Samuel Brereton, Sr., the father of William H. and Samuel, Jr., conveyed the land in question, with some land in lot 8, to William H. and his heirs, in trust for the use and benefit of Mary Ann, the wife of the said Samuel, Sr., for her life, with remainder in fee for the use and benefit of said William H. and Samuel, Jr., as tenants in common. The said Mary Ann having died, Samuel Brereton, Sr., on the second of February, 1854, executed a deed to William H. and Samuel, Jr., in fee, as tenants in common, of the land covered by the deed of May 1, 1851. The bill avers that, by reason of the deed of May 1, 1851, Samuel Brereton, Sr., no longer had any interest in the premises which the deed of February 2, 1854, purported to convey, and that that deed was inoperative. The meaning of the allegation that the conveyance to Ward of June 1, 1874, was made under the deed of February 2, 1854, is that the only description in the conveyance to Ward of the land it covers says that it is parts of lots 8 and 9, "as the same is more particularly described by metes and bounds in a deed from Sam. Brereton to Wm. H. and Sam. Brereton, Jr., dated the second day of February, 1854."
The bill avers that Ward is intending to sell the interest of the plaintiff in the land in question, claiming that it passed to him by reason of her having signed and acknowledged the deed of June 1, 1874, notwithstanding the before-mentioned circumstances of such signature and acknowledgment. The bill prays for an injunction restraining Ward and Mrs. Batchelor from selling the property, and for a sale, under the direction of the court, of the interest in it of all the parties to the suit, and the proper distribution of the proceeds. A temporary injunction was granted. The answer of Mrs. Batchelor sets up that the entire title to the land was vested in Ward, as trustee, to secure the $3,500 note. The land was sold at auction under a decree of the court, by a trustee, a reference was made to an auditor to state the trustee's account, and "the legal distribution of the fund among the parties in interest," and the sale was confirmed.
In July, 1880, the auditor made his report. In it, speaking of the deed to Ward of June 1, 1874, he says: "The signature of Sarah A. Brereton appears to the said deed, with her seal. She also united in the acknowledgment attached to the said deed, the said acknowledgment being made in the proper form prescribed by the statute regulating that matter in this district. It will be observed that she is not a party named in any of the recitals of the said deed, and that the trustee, Hannay, is neither mentioned as a party, nor does he unite in any manner in the execution or acknowledgment of the convey* * It is asserted, upon the one hand, that this deed cannot be recognized here, inasmuch as the trustee is not in any manner a party to it, and inasmuch as it is left uncertain what might have been the intention of the complainant, Sarah A. Brereton, in affixing her signature and uniting in the acknowledgment of the same. Upon the other hand, it is argued that the paper is such an act of the said Sarah A. Brereton as will induce a court of equity to recognize it as the exercise upon her part of the power of appointment, or a direction to her trustee, and to enforce the same as such, and, this distribution being in a court of equity, and being the act of a court of equity, the instrument in question will be so treated and enforced. * * * I am constrained to look upon the paper as absolutely void so far as" Sarah A. Brereton "is concerned, for the purpose of this proceeding. * * ** I have, therefore, * * * treated this conveyance as that of William H. Brereton alone, and as not conveying or affecting the interest or estate of the said Sarah A. Brereton; and the distribution to the indebtedness secured by this deed
of trust is, therefore, made from the share of the said William H. Brereton, so far as the same is available." Mrs. Batchelor filed exceptions to the report of the auditor, in which she claims that the deed of trust to Ward, of June 1, 1874, "is a good and valid lien as well upon the moiety of, or interest in, the land described in the bill, held by Peter Hannay, trustee, as upon that of William H. Brereton," and she, therefore, excepts to the allowance of every item in the report which treats “the said deed of trust as invalid and not lien upon the moiety or interest held by Hannay."
On a hearing by the court, at special term, the exceptions filed by Mrs Batchelor were sustained, so far as they related to the deed of June 1, 1874; and the court, in its decree, declared that deed to be a valid lien and charge on both moieties of the land sold; and the report was overruled, so far as it appropriated the proceeds of sale in favor of Sarah A. Brereton and James I. Brereton, as against the deed of June 1, 1874. The court, in general term, on an appeal by the plaintiff from the decree sustaining Mrs. Batchelor's exceptions, reversed the decree in special term, so far as it sustained the exceptions in regard to the effect of the plaintiff's signature to the deed of June 1, 1874, and her acknowledgment thereof, and overruled the exceptions and confirmed the report of the auditor. From the decree to that effect Mrs. Batchelor has appealed to this court.
The only question involved is that stated by the auditor in his report, and it is easy of solution. Mrs. Brereton was not named in the deed of June 1, 1874. She was not a party to it. She granted nothing by it. Although she signed it, and although the magistrate certified that she was a party to it, and that she acknowledged it to be her act and deed, after having had it fully explained to her, and declared that she had willingly signed, sealed, and delivered it, and that she wished not to retract it, it is apparent that she was regarded by the parties to it and the magistrate as having executed it only in respect of a dower interest of hers, as the wife of Samuel Brereton,-a supposed interest, perhaps, as regarded lot 9, and an actual interest as regarded lot 8. In view of the deed of February 2, 1854, to William H. Brereton and Samuel Brereton, conveying the land in lots 8 and 9 to them in fee, as tenants .4*common, and of the reference, in the deed of June 1, 1874, to the deed of February 2, 1854, as the basis of the title which the grantors were conveying, it may have been supposed that there was sufficient scope for the signature and acknowledgment by Mrs. Brereton, as regarded lot 9, in the fact that, if her husband had an interest, under that deed, in respect to lot 9, which was capable of conveyance, she, as his wife, had an inchoate right of dower in regard to it, which she had not conveyed by the deed of September 29, 1859, and which the parties to the deed of June 1, 1874, and the magistrate, had a right to regard as the subject-matter to be affected by her signature and acknowledgment, although the deed of May 1, 1851, had, by the death of Mary Ann Brereton, become operative to vest in William H. and Samuel, Jr., a title in fee to the land in lot 9, prior to the execution of the deeds of February 1, 1854, and September 29, 1859. This may have been thought a sufficient reason for signing the deed, so far as the land in question, which is wholly in lot 9, is concerned; the deed of September 29, 1859, covering land wholly in lot 9. Then, again, the deeds of May 1, 1851, February 2, 1854, and June 1, 1874, cover land in lot 8, as well as land in lot 9; and, as to the land in lot 8, there was clearly a dower interest to be covered by the execution, by Mrs. Brereton, of the last-named deed.
But, however all this may be, (and it is referred to only as furnishing an explanation of her signature,) her interest in the undivided half of the land in lot 9, for her life, free from the ownership of her husband, with the power to direct the conveyance of it by Hannay, was a distinct interest, the legal title to which was in Hannay, in trust, and could not be conveyed, except by Hannay, on her request or direction in writing, with the written consent of
her husband. Under the deed of September 29, 1859, no interest in the undivided half of the land in lot 9 could revert to her husband prior to her death. Therefore, it was not any interest of his under that deed which her husband was conveying by the deed of June 1, 1874. Nor was it her power of appointment, created by the deed of September 29, 1859, which she was exercising by the deed of June 1, 1874, because that was to be made effective by a conveyance by Hannay, and there was no request or direction by her to Hannay to convey, and he never did convey. The debt of $3,500 to Batchelor, named in the latter deed, is described therein as a debt by William H. Brereton and Samuel Brereton to Batchelor, and Mrs. Brereton is not named as debtor. Therefore, all property which they were conveying by that deed, to secure that debt, was presumably their own property, and any interest of Mrs. Brereton in it, sufficient to call for her signature to that deed, was presumably an interest created by her being the wife of Samuel, and which was supposed to grow out of his title and her marital relation, and not to have been before conveyed, irrespective of any other interest which she had in the land, or any power of appointment in respect of it.
It needs not much argument or authority to support the conclusion at which we have arrived. In Agricultural Bank v. Rice, 4 How. 225, 241, it was held that, in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee, and that merely signing, sealing, and acknowledging an instrument, in which another person is grantor, is not sufficient. In the present case, if Mrs. Brereton possessed the right, she was not the grantor, and used no words to convey her right. No intention on her part to execute the power she possessed appears in the deed. Warner v. Connecticut Mut. Life Ins. Co. 109 U. S. 357, S. C. 3. SUP. CT. REP. 221, and cases there cited; Story, Eq. Jur. § 1062a. Moreover, Hannay possessed the right, and was not the grantor, and was not requested or directed by Mrs. Brereton to convey. 2 Perry, Trusts, § 778.
The decree of the court in general term is affirmed.
(112 U. S. 377)
CHICAGO, M. & Sr. P. RY. Co. v. Ross.1
(December 1, 1884.)
1. RAILROAD COMPANY-NEGLIGENCE OF CONDUCTOR-INJURY TO ENGINEER-RELATIONS OF PARTIES-RESPONSIBILITY.
The conductor of a railway train who commands its movements, directs when it shall start, at what stations it shall stop, and at what speed it shall run, and has the general management of it and control over the persons employed upon it, represents the company, and for injuries resulting from his negligent acts the company is re sponsible.
2. SAME CONDUCTOR IS THE REPRESENTATIVE OF THE COMPANY.
The conductor of a railway train is the representative of the company, standing in its place and stead in the running of the train. The engineer is in that particular the conductor's subordinate, and for the former's negligence, by which the latter is injured, the company is responsible.
BRADLEY, MATTHEWS, GRAY, and BLATCHFORD, JJ., dissenting.
In Eiror to the Circuit Court of the United States for the District of Minnesota.
*J. W. Cary, for plaintiff in error. C. K. Davis and Enoch Totten, for defendant in error.
FIELD, J. The plaintiff in the court below is a citizen of Minnesota, and by occupation an engineer on a railway train. The defendant in the court
1 S. C. 8 Fed. Rep. 544.
below, the plaintiff in error here, is a railway corporation created under the laws of Wisconsin. This action is brought to recover damages for injuries which the plaintiff sustained while engineer of a freight train by a collision with a gravel train on the sixth of November, 1880. Both trains belonged to the company, and for some years he had been employed as such engineer on its roads. On that day he was in charge of the engine of a regular freight train which left Minneapolis at a quarter past 1 in the morning, its regular schedule time, and had the right of the road over gravel trains, except when otherwise ordered. At the time of the collision, one McClintock was the conductor of the train, and had the entire charge of running it. It was his duty, under the regulations of the company, to show to the engineer all orders which he received with respect to the movements of the train. The regulations in this respect were as follows: "Conductors must, in all cases, when running by telegraph and special orders, show the same to the engineer of their train before leaving stations where the orders are received. The engineer must read and understand the order before leaving the station. The conductor will have charge and control of the train, and of all persons employed on it, and is responsible for its movements while on the road, except when his directions conflict with these regulations, or involve any risk or hazard, in which case the engineer will also be held responsible."
When the freight train left Minneapolis on the morning of November 6, 1880, there was coming towards that city from Fort Snelling, by order of the company, over the same road, a gravel train, termed in the complaint a "wild train;" that is, a*train not running on schedule time any regular trips. The conductor, McClintock, was informed by telegram from the train dispatcher of the coming of this gravel train, and ordered to hold the freight train at South Minneapolis until the gravel train arrived. South Minneapolis is between Minneapolis and the place where the collision occurred. The gravel train had been engaged for a week before in hauling in the night gravel to Minneapolis from a pit near Mendota, for the construction by the company of a new and separate line of railroad between St. Paul and Minneapolis, and the freight train had, during this time, been stopped by the conductor, on orders of the train dispatcher, upon side tracks between Minneapolis and St. Paul Junction for the passage of the gravel train. But on the night of November 6, 1880, he neglected to deliver to the plaintiff the order he had received, and after the train started he went into the caboose and there fell asleep. The freight train, of course, did not stop at the station designated, but, continuing at a speed of 15 miles an hour, entered a deep and narrow cut 300 feet in length, through which the road passed at a considerable curve, and on a down grade, when the plaintiff saw on the bank a reflection of the light from the engine of the gravel train, which was approaching from the opposite direction at a speed of five or six miles an hour, and was then within about 100 feet. He at once whistled for brakes and reversed his engine, but a collision almost immediately followed, destroying the engines, damaging the cars of the two trains, causing the death of one person, and inflicting upon the plaintiff severe and permanent injuries, for which he brings this action.
On the trial the conductor of the gravel train testified that at the time of the collision he was under orders to run to South Minneapolis regardless of the plaintiff's train; that having 12 cars loaded with gravel his train stalled before reaching the cut where the collision happened; that he then separated his train in the middle, took six cars to Minnehaha station, went back with the engine for the other six cars, and was coming with them through the cut when the collision occurred; that the gravel train had run in the night about a week, and that when he could reach Minneapolis before the starting time of plaintiff's train he ran without orders, otherwise upon orders, and had met or passed plaintiff's train at the same place about every night during the week.
It is evident from this brief statement that the conductor on each train was guilty of gross negligence. The conductor of the freight train was not only required by the general duty devolving on him as one controlling its movements to give to its engineer such orders as would enable him to avoid collision with other cars, but, as we have seen, he was expressly directed by the regulations of the company, when running by telegraph or special orders, to communicate them to him. Had these regulations been complied with the collision would have been avoided. The conductor of the gravel train allowed it to be so overloaded that its engine was incapable of moving it at one portion of the road before reaching the cut; and when, in consequence, he was obliged to leave half of his cars on the track while he took the others to Minnehaha, he omitted to send forward information of the delay or to put out signals of danger. Having for the week previous passed the freight train at nearly the same place on the road, he must have known that by the delay there was danger of collision. Ordinary prudence, therefore, would have dictated the sending forward of information of his position, or the putting out of danger signals. Had he done either of these things the collision would not have occurred.
The collision having been caused by the gross negligence of the conductors, the question arises whether the company is responsible to the plaintiff for the injuries which that collision inflicted upon him. The general liability of a railroad company for injuries caused by the negligence of its servants to passengers and others not in its service is conceded. It covers all injuries to which they do not contribute. But where injuries befall a servant in its employ, a different principle applies. Having been engaged for the performance of specified services, he takes upon himself the ordinary risks incident thereto. As a consequence, if he suffers by exposure to them, he cannot recover compensation from his employer. The obvious reason for this*exemption is that he has, or in law is supposed to have, them in contemplation when he engaged in the service, and that his compensation is arranged accordingly. He cannot, in reason, complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid. There is also another reason often assigned for this exemption-that of a supposed public policy. It is assumed that the exemption operates as a stimulant to diligence and caution on the part of the servant for his own safety as well as that of his master. Much potency is ascribed to this assumed fact by reference to those cases where diligence and caution on the part of servants constitute the chief protection against accidents. But it may be doubted whether the exemption has the effect thus claimed for it. We have never known parties more willing to subject themselves to dangers of life or limb because, if losing the one, or suffering in the other, damages could be recovered by their representatives or themselves for the loss or injury. The dread of personal injury has always proved sufficient to bring into exercise the vigilance and activity of the servant. But, however this may be, it is indispensable to the employer's exemption from liability to his servant for the consequences of risks thus incurred that he should himself be free from negligence. He must furnish the servant the means and appliances which the service requires for its efficient and safe performance, unless otherwise stipulated; and if he fail in that respect, and an injury result, he is as liable to the servant as he would be to a stranger. In other words, while claiming such exemption he must not himself be guilty of contributory negligence.
When the service to be rendered requires for its performance the employment of several persons, as in the movement of railway trains, there is nec essarily incident to the service of each the risk that the others may fail in the vigilance and caution essential to his safety. And it has been held in numerous cases, both in this country and in England, that there is implied in his contract of service in such cases that he takes upon himself the risks arising