have been added, enjoyment-'of such rights.' The bill in this case was not sworn to, and it fails to show how, when, or by whom the deed was lost. It contains no description of the contents of the deed, the title or interest conveyed by it, or the consideration paid, and by whom paid. It merely states 'that the legal title to said property was in fact conveyed to it by said city, and that the deed conveying the same was not recorded, and was, after the same was duly executed and delivered, in some manner unknown to complainant, lost or destroyed;' and that complainant caused said lot to be purchased and paid for. It, therefore, presents insufficient grounds for relief on this phase of the case, and the grounds of demurrer interposed, questioning relief based on this theory, were properly sustained."

Loss of deed as affecting evidence.

The mere destruction of a deed will not give equity jurisdiction, but where one in possession of land has lost the evidence of his title, equity may establish the existence and contents of the document. Virginia & W. V. Coal Co. v. Charles (1917) 251 Fed. 83, affirmed in (1918) 165 C. C. A. 599, 254 Fed. 379.

One who has lost an unrecorded deed and has thereby been deprived of written evidence of her title will be granted re-execution of such deed. Conlin v. Ryan (1873) 47 Cal. 71.

In Shores v. Withers (1913) 166 Cal. 403, 137 Pac. 7, it appeared that the defendant refused to re-execute an unrecorded deed which had been destroyed by fire, on the ground that it had been made with the understanding that it was not to take effect as a delivery, or to be recorded, until the payment of a certain sum had been made. This point of payment was held to be immaterial, the object of the proceeding being to restore the record. Such instruments, said the court, should be restored, even though voidable, and the person having a defense not apparent on the face of the instrument may assert it as he might, have done if the instrument had not been lost or destroyed. The court said: "The owner of the destroyed

instrument is entitled to be placed in a position in which he will not be compelled to establish his rights by secondary evidence."

In Haworth v. Haworth (1906) 123 Mo. App. 303, 100 S. W. 531, an action to establish a deed of adoption, which, together with the record thereof, had been destroyed by fire, and which the plaintiff alleged had been executed, the court said: "Defend

ants contend that for the reason the petition fails to allege, in direct terms, that defendants were claiming some property right in the estate of J. M. Haworth adverse to plaintiff, it is insufficient to confer jurisdiction on the trial court, is without merit. The object of the suit was not to establish any right in the estate of J. M. Haworth, which was then undergoing administration, but to restore lost evidence which may be admissible in any controversy that might arise between plaintiff and defendants on the final distribution of the assets of the estate.

We think the judgment is for the right party, and it is affirmed." And in Shugars v. Shugars (1907) 105 Md. 336, 66 Atl. 273, the court, assuming the power to restore a lost deed, declared that where the restoration of such a deed would not deprive the defendants of anything of value, and would supply the plaintiff with appropriate evidence of the title which he already had, the doctrine of laches could not be invoked against the latter.

But in the reported case (NICHOLSON v. NICHOLSON, ante, 548) the court declares that where one seeks the restoration of a lost deed, the pleading must disclose an interest in the property in question, as distinguished from an interest in the instrument or evidence of title; that courts of equity will not restore valueless paper. And in reviewing the opinion in the case of Jacobson v. Roman (1920) 57 Mont. 299, 188 Pac. 138, the court interprets it as holding that one of the jurisdictional facts in such an action is that "the title of the grantee" is injured by the absence of the instrument. And it is pointed out that the complaint in the case before

the court contains no allegation of title in the plaintiff, nor any to the effect that the plaintiff's grantors were interested in the property when the deed was executed.

Effect of responsibility for loss of deed.

In Lancy v. Randlett (1888) 80 Me. 169, 6 Am. St. Rep. 169, 13 Atl. 686, wherein the petitioners sought to be confirmed in their title to land, clouded by loss of their deed prior to its recordation, the court said: "Equity withholds relief in causes when the party asking it deliberately makes the mischief from which he suffers. If the loss of a deed be accidental and without the fault of the grantee, thereby subjecting his title to hazard and peril from which the law gives him no adequate relief, equity will afford that relief most suited to the necessities of the case." The bill was held to be insufficient for the want of equity in failing to show the circumstances of the loss of the deed.

A complainant whose bill, not sworn to, alleges that he has lost a deed delivered to him by the defendant, but contains no description of the contents of the deed, or of the title or interest conveyed thereby, and prays that the defendant shall be compelled to make him another, presents no grounds for equitable relief. See Hoddy v. Hoard (1851) 2 Ind. 474, 54 Am. Dec. 456, wherein the court also made the following remark: "We know of no principle in equity jurisprudence by which a grantor can be required to execute a second deed, where one previously executed has been lost or destroyed while in the possession of the grantee. Courts of equity will, indeed, establish the possession of a party who claims title under a deed which has been lost or destroyed, or grant such other relief as the particular circumstances of the case may require; but this ought not to be done at the expense of him who executed the lost instrument, for he is under no obligation to preserve the evidences of the grantee's title, or to furnish a new deed if the deed originally delivered to him should be lost." 31 A.L.R.-36.

Dull v. Rohr (1895) 13 Misc. 530, 35 N. Y. Supp. 523, was an action to compel the execution of a conveyance by the defendants. It appeared that the premises in question had been the property of an intestate who died leaving a husband and six children, including one Josephine Rohr, the children conveying the same to their father by a quitclaim deed for a nominal consideration. This deed was never recorded and, according to the plaintiff's claim, was lost, the grantee therein conveying the premises to the plaintiff for value. Josephine Rohr, who later died, leaving her husband and children, the defendants, had refused to execute a quitclaim deed of the premises in favor of the plaintiff, expressing the opinion that one was sufficient. The court said: "We are met with the broad question whether, when a person who, without obligation to deed, does so for a nominal consideration (in effect a gift), and through the carelessness or folly of the grantee the deed is not recorded, but is lost, and the grantee deeds to another for value, that other, for the purpose of supplying a missing link in his record title, can compel the heirs of the first grantor to deed to him." The court distinguished the case from Kent v. Church of St. Michael (1892) 136 N. Y. 10, 18 L.R.A. 331, 32 Am. St. Rep. 693, 32 N. E. 704, pointing out that in that case the lost deed involved had been executed pursuant to a contract of sale, while in the case at bar there never had been any obligation on the part of Josephine Rohr to give a deed to her father, or to the plaintiff. In conclusion it was said: "Upon what principle, therefore, can Josephine or her heirs be called upon to repeat the voluntary act of conveying her interest in the property, when neither she nor any of her heirs have made, or now make, any claim to the premises? The court is asked, in effect, in this action, to assert the principle that whenever, upon search of the records, a party discovers a missing link in his title to real estate, he may come into court and compel a conveyance from anyone who may appear to have the rec

ord title, no matter whether that person makes any claim to the property or not, and although that person is under no obligation, legal or equitable, to make the conveyance. There is no foundation in reason or authority for such a proposition; it does not come under any branch of equity jurisdiction, and the court, as the guardian of these infants, cannot permit a recovery against them, or any title asserted against them under the circumstances. It is time enough for the plaintiff to ask this relief when any adverse claim is made against him."

And see the case of Louisville & N. R. Co. v. Letcher County Coal & Improv. Co. (1922) 195 Ky. 297, 243 S. W. 45, herein before set forth.

Compare Conlin v. Ryan (1873) 47 Cal. 71, wherein the court held that the facts that the loss of the deed in question resulted from even gross negligence on the part of the plaintiff would not bar her claim for relief from the loss.

In Vint v. King (1853) Fed. Cas. No. 16,950, a case not within the scope of this annotation, the court observed that in order to set up a lost deed in equity, a bill must be brought, alleging the execution of the deed and its loss.

In McBroom v. McBroom (1919) 140 Ark. 579, 215 S. W. 627, another case not within the scope of this annotation, a lost deed was restored with no further discussion as to the right of action than the statement that the deed had unquestionably been lost or destroyed.

In Maloney v. Bewley (1873) 10 Heisk. (Tenn.) 642, without passing on the general principles of the right of action to restore a lost deed, the court set up a deed of gift from which the signature had been torn, the delivery thereof having been shown to be sufficient.

In Hall v. Hall (1921) 192 Ky. 664, 234 S. W. 282, wherein it was conceded that equity had jurisdiction to restore or supply lost instruments, it was held that the evidence of the execution and former existence of the deed was sufficient to satisfy the requirements of the rule that such execution and for

mer existence must be clearly established. And allegations that that the deed had been executed fifteen years prior to the filing of the petition, and that the full purchase price had been paid, were held to be sufficient.

Where equitable relief is sought in the case of a lost deed, the absence of an affidavit of the loss thereof, as charged in the bill, is a matter to which objection should be raised at the earliest practicable stage of the cause, and is to be considered waived if not then made. Findley v. Hinde (1828) 1 Pet. (U. S.) 241, 7 L. ed. 128.

In each of the following cases the action was instituted under statutory provisions:

Anthony v. Beal (1892) 111 Mo. 637, 20 S. W. 326, was a proceeding commenced under the provisions of article 4, chapter 58, Mo. Rev. Stat. 1879. The petitioner prayed that his estate. and interest in property claimed under a chain of title involving a lost deed should be adjudged an estate in fee simple absolute, and for other equitable relief. The court said: "Upon the pleadings and the legitimate evidence in the case (which, from the peculiarity of the proceeding, have been set out more at length than is our custom) the court should have made a finding setting out the facts found to be true touching the execution of the alleged deed and its loss; determined whether or not those facts were sufficient to prove the execution of the deed and its loss; and, if found to be sufficient, declared the estate or interest thereby conveyed; and if found not to be sufficient, to have so declared and then dismissed the bill. For this error the judgment will have to be reversed, and the cause remanded to be proceeded with in accordance with the views herein expressed."

Thomas v. Scott (1909) 221 Mo. 271, 119 S. W. 1098, was an action under a statute providing for the establishment of land titles, and involved a deed to the plaintiff's grantor, which had been destroyed. In answer to the objection that the plaintiff, not being the grantee in the destroyed

con

deed, could not bring the action in his own name, the court said: "Nor is there anything in the words of the statute requiring such narrow struction as to preclude everyone but the grantee in the lost or destroyed deed suing to re-establish it. The grantee may be dead, or may have long since parted with his title. He may be insolvent, or indifferent, and care not a fig whether the deed be re-established or not. One holding title

under mesne conveyances from him, as in this instance, many have an estate in jeopardy because of the loss or destruction of the deed. Shall we deal with the lawmakers on the theory that they did not hold the true owner of the title in mind when writing the law, but were amusing themselves by limiting the benefits of the act to some remote grantee in the lost or destroyed deed? The point is ruled against defendant." R. S.

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street railway safe alighting place.

2. The rule requiring a street railway company to furnish the passenger a safe place to alight upon the street does not require it to protect all passengers at such place against independent agencies operating in the street.

[See notes in 1 A.L.R. 953; 12 A.L.R. 1371.]

- warning to children and defectives. 3. The rule is not held to be an inflexible one, not subject to exceptions in the case of children or in the case of persons not apparently possessed of normal faculties for protecting themselves, or where a person of normal faculties actually is known by the employee to be about to incur a danger in alighting of which the employee knows the passenger is una

ware.

- compelling alighting in danger. 4. The company must give the pasHeadnotes by FLANSBURG, J.

senger a reasonable opportunity to select his time to alight and to direct his own progress, having regard for his own protection and safety, and must not influence or compel him to alight so as to cause him to be placed in the way of danger from passing vehicles.

- duty to passenger after alighting.

5. A street car passenger who alights at his destination upon the street becomes a pedestrian upon the street, and the street railway company is not bound to guard or protect him in his progress on the street from the place where he alights.

See 4 R. C. L. 1047; 1 R. C. L. Supp. 1262; 4 R. C. L. Supp. 304.]