by the plaintiff Mollie A. Walters against these defendants for the recovery of the same goods sued for in this action. (2) Because of error in refusing the motion for a nonsuit as to the second cause of action stated in the complaint.

While it may be quite true that the record of the former action was not competent as a bar to this action, for lack of the necessary identity of parties, yet it was competent, as well as pertinent to the question as to whether the goods sued for belonged to the plaintiffs jointly, or to one of them separately.

As to the second ground, the allegation in the complaint upon which the second cause of action was based was that the defendants "forcibly, maliciously, and oppressively, with design to reduce plaintiffs to destitution and dependence, and thus to compel them to remain in the employ of the said corporation against their will, and to work for the said corporation upon its own terms," seized and carried away the goods sued for, and "detained the same unlawfully, maliciously, and oppressively, with design to intimidate their remaining employes, and deter them from exercising their rights as freemen to go at will, and pursuant to defendants' general policy and system of oppression and tyranny in that regard." I am unable to find any testimony whatever which even tends to sustain these allegations, or any one of them. On the contrary, the testimony of both of the plaintiffs tends to show that the whole controversy arose out of a dispute between the parties as to the amount the plaintiff J. C. Walters was owing the company, and whether the goods taken were to stand as security for any amount that might be due; and, so far as 1 can perceive, there was not the slightest evidence that the defendants acted either mall ciously or oppressively, or were actuated with any design to force the plaintiffs to remain in their employ. For these reasons, thus briefly indicated, I am compelled to dissent.

(53 S. C. 126)

SATCHER et al. v. GRICE et al. (Supreme Court of South Carolina. Sept. 3, 1898.)

ADVERSE POSSESSION-PRESUMPTION - DISABILITY OF OWNER-ACCRUAL OF CAUSE OF ACTION-WILLS-TITLE OF DEVISEE.

1. In an action for possession of land which has been held by a stranger for more than 20 years, where there is no evidence that his possession was permissive, or in subordination to plaintiff's rights, it is presumed to have been adverse.

2. Under Code Civ. Proc. 108, providing that, to prevent or arrest the running of the statute of limitations, a person entitled to commence an action for lands must show a disability "at the time such title shall first descend or accrue," the fact that plaintiff is a minor when the action is commenced does not arrest the statute, where it has already commenced to run against the one under whom the minor claims.

3. While there is no statute limiting the time for admitting a will to probate, and while Rev.

St. 1893, § 2006, provides that no devise shall be admitted as evidence until after probate of the will, yet the title of a devisee vests immediately on testator's death, and hence it is from that time that the statute of limitations commences to run against his right of action to recover the land.

Appeal from common pleas circuit court of Edgefield county.

Action by Amos W. Satcher and others against Lucretia Grice and others. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

Croft & Tillman, for appellants. Sheppard Bros., for respondents.

JONES, J. This is an action to recover the possession of land, and the appeal is from a judgment of nonsuit based on the ground that plaintiffs' action is barred by the statute of limitations. The plaintiffs claimed title to the land in dispute under the will of their grandfather, Amos W. Satcher, Sr., who died in 1842, seised and possessed of the said land. The will was dated January 18, 1842, but was not probated until in May, 1896, a few days before the commencement of this action. The second clause of the will devised the land to his daughters, Lizzie, Cherry, and Nancy, and the third clause devised the same land to them, "to hold jointly as long as they live, ana, should either die without issue, their part to go to the other, and at their death to their brothers and sisters, and to their issues of their bodies." Lizzie and Nancy died previous to 1860, without issue. Cherry married Eldred S. Grice, and died, without issue, in 1871, in possession of the land. Eldred S. Grice remained in possession until his death, in 1895. Some time after the death of his first wife, Cherry, Eldred S. Grice married the defendant Lucretia Grice, who, with her son and co-defendant, have been in possession since his death. The plaintiffs are the children or is sue of Ira H. Satcher, Henry Satcher, and Lois Watson, who were children of the testator. These brothers and sisters of Cherry were living at the time of her death, in 1871. Under this will Cherry took a life estate in the land, and at her death the brothers and sisters named took a fee conditional, the words "and to their issues of their bodies" being words of inheritance, and not of purchase. The possession of Eldred S. Grice, a stranger to the will, having begun in 1871, and having continued for more than 20 years previous to his death, without any evidence that it was permissive or in subordination to rights of others under the will, is presumed to have been adverse. The statute of limitations, being 20 years at the time of the death of the life tenant, Cherry, commenced to run against the tenants in fee conditional, all of whom were sui juris, in 1871, whereas the action was not commenced until 1896. It is contended that one of the plaintiffs was a minor when the action was commenced, and that this fact saves the statute. The minor in question was born June 14, 1875, and the stat

ute had commenced to run against her father, Ira Satcher, under whom she must claim, and could not be arrested by such disability. Shubrich v. Adams, 20 S. C. 52.

It is

It is further argued that the statute did not commence to run against plaintiffs until the probate of the will, in 1896, at which time it is alleged the right of action accrued. true that there is no statute in this state limiting the time during which a will may be admitted to probate, and it is true that section 2006, Rev. St. 1893, provides that "no devise of real estate shall be admitted as evidence in any ease until after probate," etc.; but these facts cannot in any way control the operation of the statute of limitations in reference to actions to recover the possession of land. The effect of the probate of a will is to establish the fact that the will has been according to the form prescribed by statute, or, In other words, to ascertain the original validity of the will. Burkett v. Whittemore, 36 S. C. 433, 15 S. E. 616; 19 Am. & Eng. Enc. Law, 181. Since the fee cannot be in abeyance, a devisee of land takes under the will directly from the testator, immediately on his death. Crossland v. Murdock, 4 McCord, 217; 19 Am. & Eng. Enc. Law, 181.' Such title, therefore, vests on the death of the testator, and not at the probate of the will. The probate, whenever it occurs, relates back to the death of the testator. The devisee's cause of action against a trespasser on the devised land accrues at the time of the trespass. To prevent or arrest the running of the statute, the person entitled to commence an action to recover land must show a disability,-as infancy "at the time such title shall first descend or accrue." Code Civ. Proc. § 108. In this case, as shown, the right of action accrued, on the death of the life tenant, in 1871, to the tenants in fee conditional, the parents of the plaintiffs, then under no disability. This conclusion renders it unnecessary to consider the other grounds upon which the motion for nonsuit was based. The judgment of the circuit court is affirmed.

(96 Va. 277)

ARTRIP v. RASNAKE et al. (Supreme Court of Appeals of Virginia. July 11, 1898.)

DEEDS- MENTAL INCAPACITY — EVIDENCE-PARTNERSHIP-MORTGAGES-LIEN-FORECLOSURE-SALE.

1. In a suit to foreclose a mortgage, wherein defendant alleged want of capacity to execute the instrument, evidence merely that she was ill seven or eight months before the mortgage was made, and acted queerly at times not specified, did not show a general derangement, shifting the burden of proof on complainant to show her legal capacity to contract when the deed was executed.

2. Testimony of persons present at the fac tum of a deed, as to the mental condition of one of the contracting parties, is of more weight than the opinions of witnesses based on the erratic conduct of such party.

3. Partnership relation is precluded where a party avers that he had no part or parcel in the profits of the business, and acted only as salesman and servant.

4. To decree a sale of land under a mortgage wherein parties contract for a sale, without first having a reference to a commissioner to report liens, where no question of priority of liens is raised, is not erroneous.

5. A mortgage remains a lien until the debt it was given to secure is satisfied, and is not affected by a change in the evidence of indebtedness.

Appeal from circuit court, Buchanan county. Separate bills by J. S. Rasnake & Son against Floyd Artrip and Alice Artrip, by M. T. Browning against Floyd Artrip, and by Alice Artrip against Floyd Artrip. The causes were heard together, and a decree was rendered, from which Alice Artrip appeals. Affirmed.

Wm. E. Burns, for appellant. Finney & Stinson, S. W. Williams, and R. Walter Dotson, for appellees.

CARDWELL, J. This is an appeal by Alice Artrip to a decree of the circuit court of Buchanan county, rendered October 3, 1896, in the following named causes, heard together: J. H. Rasnake & Son against Floyd Artrip and Alice Artrip, M. T. Browning against Floyd Artrip, and Alice Artrip against Floyd Artrip. In the first-named cause, the bill, filed in August, 1895, alleges that Floyd Artrip and Alice, his wife, are indebted to the complainants for the purchase price of a stock of goods and merchandise sold by complainants to the defendants, to the amount of $1,438.79, for which amount Floyd and Alice Artrip executed their joint bonds,--one for $280, payable in 4 months, and three for $384.79, payable, respectively, at 8, 12, and 18 months, after their date, and secured their payment by mortgage dated March 2, 1893, to complainants, J. H. Rasnake & Son, conveying a tract of 180 acres of land, another of 50 acres, and another of 64 acres, all situate in Buchanan county, and all the real estate owned by the defendants; that the mortgage was duly executed and delivered by defendants, Floyd Artrip and wife, to complainants, but was never put to record in theTM clerk's office of Buchanan county court, because complainants had implicit confidence in the honesty and integrity of Floyd Artrip, and at that time also in Alice Artrip, and therefore did not go to the expense and trouble of recording same; that Floyd Artrip paid the $280 bond in full, and July 16, 1894, paid a large part of the second-named bond of $384.79, and on that date he and his wife, Alice, executed their joint bond to complainants, payable one day after date, for $157, the balance due on this bond, and upon the bond of $157 Floyd Artrip made a number of payments, the date and amount of each payments being given; and that on the second bond for $384.79 Floyd Artrip had paid $175.

It is further alleged that complainants had caused an attachment in this suit to be issued and levied upon certain lands belonging to Alice Artrip, and that the rents and profits of the lands for five years will not pay the debt of complainants and "keep down the

interest on the same." The prayer of the bill is that a sale of the land be made to pay complainants' debts, etc.

The bill was taken for confessed as to Floyd Artrip, but Alice Artrip filed her demurrer and answer thereto, and in her answer says that she was incapable of transacting any business at the time the mortgage is said to have been executed. That the goods were sold to Floyd Artrip, who alone made the purchase, and that they were delivered to him. She denies any participation in the negotiations for the stock of goods, and avers that Floyd Artrip, her husband, had no defense to make to the sult; his object being to have the lands of respondent sold to satisfy his debt. That the 180-acre tract of land in the bill mentioned belongs to her, and is a part of a 450-acre tract that was deeded to her and her husband, Floyd Artrip, jointly in exchange of lands that belonged to her. That therefore the lands belonged to respondent, and Floyd Artrip had no interest in them. She further avers that complainants had knowledge of this fact at the time her signature was procured to the papers creating the debt, and that no effort was made to make the debt out of the personal property of Floyd Artrip; asks that the mortgage be annulled as to her; but avers that the lands will rent for enough in five years to pay the debts, if the court should be of opinion that her land is bound for the debt alleged in the bill.

In the second of the causes named above, M. T. Browning's bill, filed January, 1896, alleges that he obtained a judgment before a justice of the peace for $25, with interest from the 26th day of July, 1895, until paid, and 80 cents costs, against Floyd Artrip; that the same had been duly docketed in the clerk's office of Buchanan county, and is a lien upon the lands owned by Floyd Artrip in Buchanan county, containing acres; that there are other judgments against him, and the lands will not rent for enough in five years to pay these judgments. An account of liens and their priorities was asked for, ordered, and made, as Floyd Artrip made no defense to this suit.

In the third-named suit of Alice Artrip against Floyd Artrip, instituted in August, 1896, complainant alleges that she was induced by the defendant Floyd Artrip to exchange certain lands she owned in Russell county, Va., for a certain 450-acre tract in Buchanan county, owned by one J. C. Artrip; that J. C. Artrip gave Floyd Artrip $360 to boot or difference in the exchange of the two tracts, and that a deed was made to the complainant and defendant jointly by J. C. Artrip for the 450acre tract; that Floyd Artrip had no interest in her Russell county lands, and should not have been mentioned in the deed for the Bu chanan county land as one of the grantees, but that he controlled the whole matter, and had the deed made as he desired; that he took the $360, and used it; that at the date of the

deed, September 10, 1885, complainant was an infant, and that while yet an infant the defendant induced her to join in conveyances with him for parts of the 450-acre tract, and, after he had disposed of the timber, brought suit against her in the circuit court of Buchanan county, and obtained a decree at the May term, 1896, granting him a divorce a vinculo matrimonii; that since then he has occupied the remainder of the 450-acre tract, viz. about 180 acres, collecting the rents and receiving the benefits therefrom, etc. She prays that the defendant be compelled to convey this 180-acre tract of land to her, account to her for the $360, and for the rents, issues, and profits of the land for the past five years, etc.; but that, if she is not entitled to this relief, then partition of the land be had between her and the defendant.

This bill the defendant Floyd Artrip answered, and, after stating that he had no defense to make to the other two suits, that the claims were just, etc., he admits as true the allegations of the bill that complainant owned the Russell county land exchanged for the Buchanan county land, but denies the other allegations of the bill generally.

Numerous depositions were taken in the first-named cause, and upon the hearing of the three causes together, on the pleadings therein, respectively, the depositions and affidavits therein, and the report of the liens against Floyd Artrip made in the secondnamed cause, the court confirmed the report of liens, and, ascertaining in its decree the priority and amount of the lien of complainants, J. H. Rasnake & Son, asserted in the firstnamed suit, decreed that the lands conveyed in the mortgage held by J. H. Rasnake & Son, with the exception of the 64-acre tract, or enough thereof, be sold by a commissioner of the court appointed for the purpose, to pay off and discharge the indebtedness shown by the decree.

The grounds of error assigned in the petition for this appeal are: (1) "The proof clearly shows that Alice Artrip was not competent to make a contract at the time Floyd and said Alice made and signed the trust deed referred to." And (2) "It was error in the court to decree a sale of the lands of Alice Artrip."

No attempt was made by appellant to sus tain by proof her defense set up in her answer to the bill of J. H. Rasnake & Son, except on the issue of insanity. She had never been adjudged a lunatic, and, while there is some evidence that she was ill seven or eight months before the mortgage to J. H. Rasnake & Son was executed, and acted "queerly or strangely" at times, without saying when, it wholly fails to show a general derangement, whereby the burden was shifted to J. H. Rasnake & Son to show her legal capacity to contract when the mortgage was executed and delivered to them, if it shows at any time that she was incapable of contracting the debt. 1 Greenl. Ev. § 81; 2 Greenl. Ev. p. 336, § 371;

Fishburne v. Ferguson's Heirs, 84 Va. 107, 108, 4 S. E. 575; 2 Minor, Inst. p. 644.

On the other hand, it is not only shown that she made no sort of objection to signing the bonds or mortgage, but urged her husband to make the purchase of the stock of goods, and 16 months afterwards united in the bond given for the balance due on one of the bonds secured by the mortgage. One of the five persons present when the bonds and mortgage were executed, introduced as a witness for appellant, says that her mind was in its usual condition when she signed these papers, that witness had no impression at the time of her mind being affected, and that she did not see anything that indicated to witness that appel. lant was not right. The witness also says that she was employed at the house of appellant when the bonds and mortgage were signed, was there about two weeks,, and during the time saw appellant often in the store waiting on people, trading, and doing business, and that she paid witness for her services in goods out of the store, making the calculation herself of what was due witness.

The other four persons present when the bonds and mortgage were signed and delivered to appellees all testify that appellant had mental capacity to contract and do important business at that time. One of them, who is wholly disinterested, and witnessed the execution of the "deed of trust," says that appel. lant was of sound mind; that at the time of, just before, and after, these transactions she stayed in the store, sold goods, acted as general clerk; that witness had traded with her right much, and she could calculate, keep accounts, change money, and do the general business of a clerk.

"Evidence of this character-those present at the factum of the deed-has always been held by the courts to be entitled to far more weight and importance than the opinion of witnesses based upon the erratic conduct and eccentricities of the party of whom they speak." Beverly v. Walden, 20 Grat. 159; Mercer v. Kelso, 4 Grat. 106.

Had the proof shown a general derangement of appellant's mind, thereby shifting the burden to appellees to show a lucid interval at the time of the factum, their proof, uncontradicted, as it is, clearly and conclusively proves her mental capacity to contract at the time the bonds and deed of trust or mortgage were executed.

Under the second assignment of error, it is contended that appellant and her husband, Floyd Artrip, were engaged as partners in the mercantile business, and, under section 2287 of the Code, she had no power or authority to make the contract with appellees, binding her separate estate for the debt due them for the stock of goods; and that, if they are not treated as partners, then the wife is surety for the husband, and should have been so treated, and her rights as surety respected, her lands should not have been decreed to be sold until

the property of the principal had been exhausted, and that, before a decree of sale could have been made, an account and report of the property owned by Floyd Artrip, the husband, was necessary, and his property sold first, etc.

The position that appellant and her husband were partners in the mercantile business is wholly untenable, in view of the positive statement in her answer to the contrary, wherein she says that she had no part or parcel in the profits of the business, and only acted as the servant and salesman of her husband at such times as his pleasure demanded.

It is not error to decree a sale of land under a mortgage or deed of trust, wherein parties contract for a sale, without first having a reference to a commissioner to report liens, where no question of priority of liens is raised by answer or otherwise.

Where there are conflicting claims to priority of payment out of the proceeds of land about to be sold to satisfy the liens upon it, the court, in order to prevent the danger of sacrificing the property by discouraging creditors from bidding, as they probably might if their right to satisfaction of their debts and the order in which they were to be paid out of the property were previously ascertained, should declare the order of payment before it decrees the sale to be made. Iaege v. Bossieux, 15 Grat. 103.

There was, however, no conflict in the court below as to priority of liens upon the property of appellant embraced in the mortgage held by appellees, and no controversy as to amount due on the debt thereby secured, except as to the $157 bond executed by Floyd Artrip and appellant for the balance due on one of the bonds secured by the mortgage, and upon which payments had been made. The contention, though it does not appear to have been made in the court below, is that it was error to include the balance due on this $157 bond in the amount of the debt ascertained to be due and unpaid on the bonds secured by the mortgage.

A mortgage or deed of trust remains a lien until the debt it was given to secure is satisfied, and is not affected by a change of the note, or by giving a different instrument as evidence of the debt. Stimpson v. Bishop, 82 Va. 198; 2 Jones, Mortg. § 924.

The debt secured by the mortgage and unpaid being ascertained by the decree of the circuit court ordering a sale of the land, and no conflict as to priority of liens on the property conveyed in the mortgage appearing in the pleadings, or otherwise brought to the attention of the court, it was not error to decree a sale of the property, or so much thereof as might be necessary to pay this debt; and in doing so the court was merely executing the contract of the parties embraced in the mortgage. Under the decree, the judgment liens upon the lands of Floyd Artrip, reported by Commissioner Hibbitt, can only be satisfied

out of the proceeds arising from the sale of his lands, and, as to the equities of appellant and Floyd Artrip inter sese, we are not called upon to express any opinion, nor do we understand the decree as concluding them.

We are therefore of opinion that the decree of the circuit court should be affirmed.

(96 Va. 152)

SIMONS' ADM'R v. SOUTHERN RY. CO. (Supreme Court of Appeals of Virginia. June 16, 1898.)

RAILROADS-SIGNALS AT CROSSINGS-COMPLIANCE WITH STATUTE CONTRIBUTORY NEGLIGENCE DEMURRERS To Evidence-CAUSAL CONNECTION. 1. The failure to sound the whistle of an approaching locomotive at least twice, sharply, not less than 300 yards before a highway crossing, as required by Acts Assem. 1893-94, p. 827, constitutes negligence; and the fact that, 484 yards from the crossing, a loud long blast was blown, which was claimed to be a more efficient warning than the two sharp blasts, cannot be said, as a matter of law, to be a sufficient substitute for the signal required by the statute.

2. Plaintiff's intestate, while driving on a dark night, approached a railway where the highway crossed it obliquely, and where the view was obstructed by the woods until within 80 feet of the center of the track. The horse had been driven some 40 miles, and was moving slowly along the highway, while intestate was looking out for the crossing and listening for trains. Held, that where killed while crossing the track, without warning, intestate was not guilty of contributory negligence as a matter of law.

3. On a demurrer to the evidence, the court is required to make all the presumptions that the jury might have made had not the case been withdrawn from it.

4. A railroad company on a dark night failed to blow a whistle, as required by statute, at crossings, and ran over intestate, who was slowly driving across the track and listening for trains. Held, that the duty of showing a causal connection between the breach of duty and the injury, in that the evidence must tend to establish such a relation between them as, according to ordinary experience, warrants the conclusion that the injury would not have happened had not the negligence occurred, was complied with.

Error to circuit court, Lunenburg county.

Action by Simons' administrator against the Southern Railway Company. From a judgment for defendant, plaintiff brings error. Reversed.

Wm. H. Mann and G. S. Wing, for plaintiff in error. B. B. Munford, for defendant in

error.

KEITH, P.

About 6 o'clock on the evening of December 27, 1895, W. H. Simons and Walter and John Rutledge undertook to cross the tracks of the Southern Railway Company at a point a short distance south of Meherrin Station. They were seated in an open vehicle, drawn by one horse. Simons was driving. They had traveled during the course of the day a distance of about 40 miles. They had no particular acquaintance with the road, but knew that they were approaching the point where it crossed the railway, and were driving

cautiously and carefully, and keeping a sharp lookout. It was not raining, but no stars were visible, and the night was very dark. Just

as they got upon the track a passenger train coming from the south struck the vehicle, killed Simons, broke the leg of Walter Rutledge, and John Rutledge, who occupied a seat with Simons, the driver, escaped by leaping across the track in front of the engine.

This suit was brought to recover damages for the alleged negligent killing of Simons by the defendant company.

The declaration contains three counts, only one of which will be noticed. The second count states as the cause of action that "while the said W. H. Simons, without any fault on his part, was traveling along said public road or highway, and over said railroad crossing, as he had the right to do, the Southern Railway Company carelessly and negligently failed and refused to cause the whistle on its locomotive engine to be at least twice sharply sounded, not less than three hundred yards before its locomotive reached the said highway crossing, and by reason of its said negligence, in so failing to blow, or cause to be blown, the whistle of its locomotive engine three hundred yards before reaching said crossing, as it had a right to do, the said defendant negligently, carelessly, and wrongfully caused or permitted its said engine, to which was attached a train of cars, to be violently, and with very great speed, driven against and upon the said Simons, inflicting fatal injuries, on account of which said injuries, so carelessly, negligently, and wrongfully inflicted by the said defendant on the said Simons, he, the said Simons, then and there died; to the damage of the said plaintiff $10,000."

Upon the trial the defendant demurred to the plaintiff's evidence, and the jury rendered a verdict for $8,500, upon which verdict the circuit court entered a judgment for the defendant, and the case is before us upon a writ of error granted by one of the judges of this court.

By an act of assembly (Acts Assem. 1893-94, p. 827) it is provided "that a bell and a steam whistle shall be placed on each locomotive engine operated on any railway in this state, and said whistle shall be at least twice sharply sounded, not less than three hundred yards before a highway crossing is reached: provided, that at street crossings within the limits of incorporated cities or towns the sounding of the whistle may be omitted, unless required by the council of any such city or town, and the company shall also be liable for all damages which shall be sustained by any person by reason of such neglect."

It is conceded that this case does not come within the exceptions named in the statute; that it was the duty of the company to sound its whistle as above prescribed; and that this duty was not performed. The negligence of the defendant company being thus established, it can only escape its consequences by showing that the damages suffered by plain