swer, not for a demurrer. It is distinctly alleged that it was the intention of both parties to convey 470 acres, estimated as the acreage of exemption and dower right in about 1,200 acres, owned by the husband at his death; that this was to be in one body, the purpose being to enlarge the dower interest therein to an estate in fee; that the $600 were paid for that and received for that; that she now only has about 240 acres of the 470 which it was the intention to convey, the rest being withheld from her; that, of the land conveyed to her, S. E. 4, and E. 1⁄2 of S. W. 4, of section 14, never were conveyed by the sheriff's deed. In short, as against Mrs. Person, the allegation is that she intended to convey, and appellant to receive, 470 acres in one body, being the land to which she was entitled as dowress, and on which she and her family had all the while been living; and that, to secure the enlargement of a life estate therein into a fee simple she paid, and Mrs. Person received and retains, $600. That is the plain gravamen of the bill, and the deed looked to does not escape it. If nothing else were true, it certainly is true that the bill states a good case for relief as to a proportionate part of the purchase money as against Mrs. Person. See the authorities in brief of counsel for appellant, especially Wilson v. Cox, 50 Miss. 136, and Hull v. Watts, 95 Va. 10, 27 S. E. 829. As the demurrer is general, it should have been overruled on that ground, at all events. But it should have been overruled on both grounds on the allegations of this bill. As to the guardian, it is distinctly alleged that he and said minors had knowledge that a portion of the land described in said mortgage was the land of complainant. This averment calls for an answer, not a demurrer. Reversed, demurrer overruled, and cause remanded, with leave to answer in 30 days from the filing of the mandate in the court below.

Suggestion of Error.

The following suggestion of error was filed in this cause by counsel for appellees: "(1) All the material averments of the bill of complaint, original and amended, are based entirely on deed from I. M. and J. W. Person to Elizabeth Chambliss. (2) Said deed specifically indicates the land conveyed in the following words, to wit: 'But, as an exact survey of said land has not been made, said tract is further described as that part of the Cortez Chambliss place, in Claiborne county, Mississippi, sold by John J. Smith, sheriff, to James W. Person, by deed recorded in Book HH, page 266 et seq., of the records of deeds of Claiborne county, which has been claimed and held by said grantee, as her exemption and dower, since 6th of September, 1869; but it is not intended to in any way sell or alien that part of the land described in said sheriff's deed which has since said 6th of September, 1869 (when said sheriff's deed was executed), been

claimed and held by said James W. Person and those claiming under him, which said last-named tract contains about 400 acres: the sole object of this deed being to enlarge the estate of said grantee in the lands now held by her from an estate for life to an estate in fee.' (3) The original and amended bills nowhere charge that the land claimed to be that intended to be conveyed by appellant is the land which has been held by her and claimed by her as her exemption and dower since 6th September, 1869, nor do they anywhere charge that the land she asks to be deeded to her under decree are not the lands claimed and held by J. W. Person and those claiming under him since September 6, 1869. (4) Because the said bills did not aver that the land sought to be recovered by the appellant were lands which she had claimed and held as exemption and dower since September 6, 1869, and were not lands claimed and held by J. W. Person and those claiming under him since September 6, 1869, demurrers were interposed. (5) Clearly, appellant could not recover unless she put herself within the terms of her deed. She makes her deed an exhibit to her bill, and she makes it the predicate of every, averment. Instead of averring the matters that would give her standing in court, she distinctly charges that the lands she seeks to recover are lands claimed and held by J. W. Person, and that they have been held and claimed by him since September 6, 1869. See both original and amended bills. In view, then, of the above-recited facts, which are the material allegations of the bill, and which the demurrers confess, is appellant entitled to a reversal of the decrees sustaining the demurrers to her bills? Appellees submit that, if the facts are as above stated, then the finding of the court, as given in the opinion handed down, on the 9th of April, 1900, is erroneous. That they are as above stated, appellees press upon the notice of the court the said deed, filed as Exhibit A to bill of complaint, and the averments of the original and amended bills of complaint. A careful inspection of these will show the facts as above set out, and that an error in fact has been made by the court, with a consequent error in law."

PER CURIAM. Suggestion of error denied.

O'NEAL et al. v. McLEOD. (Supreme Court of Mississippi. April 9, 1900.) PAROL EVIDENCE-VARYING CONTRACT. Parol evidence is not admissible to control the statements of a written contract (notes and trust deed securing them) as to the amount that would be due thereunder.

Appeal from chancery court, Sunflower county; A. McC. Kimbrough, Chancellor. "Not to be officially reported."

Suit by Mrs. S. J. McLeod against Ireland O'Neal and others. Decree for complainant. Defendants appeal. Reversed.

This suit was filed in the chancery court for the purpose of setting aside, as fraudulent, the cancellation of a deed of trust given by appellants to appellee. The bill alleges that on June 14, 1897, Ireland O'Neal and his wife, Tennie O'Neal, made a mortgage to Mrs. McLeod to secure two notes,-one for $250, and one for $200; that on March 16, 1898, in order to raise the money to pay these two notes, and also to pay a certain judgment due by Ireland O'Neal, said O'Neal effected a loan from one N. T. Burroughs, giving him a mortgage on the land, on which complainant held a deed of trust; that O'Neal agreed to pay complainant out of the money borrowed from Burroughs, and, on the faith of this promise, complainant had her mortgage marked "Satisfied," of record; that O'Neal only paid complainant $110, and refused to pay the balance due; that O'Neal received $307.20 from Bur roughs; and that the cancellation of the deed of trust was fraudulently obtained. The prayer of the bill is to have the cancellation of the mortgage set aside, and to have the mortgage foreclosed. Ireland O'Neal and Tennie O'Neal, in their answer to this bill, admit that the mortgage was executed to complainant; aver that the mortgage was given for the real purpose of paying off a judgment for $425 in favor of Faison & Son against complainant and Ireland O'Neal; that C. H. McLeod, agent for complainant, agreed, in consideration of the mortgage, to pay off this judgment, and this was the sole consideration; admit that O'Neal borrowed the money from Burroughs. They deny that defendants owe complainant anything whatever, or that there was any fraud in obtaining the cancellation of the mortgage, and aver that defendants have paid on the judgment, since the mortgage to complainant, the sum of $443.19. The answer of Burroughs denies all knowledge of any fraud in the cancellation of complainant's mortgage. While the suit was pending the court allowed an amended bill to be filed. This amended bill set up that by mistake the entire granting clause had been omitted in the mortgage of June 14, 1897; and the prayer was for a reformation of the instrument, and its enforcement as reformed. At the trial C. H. McLeod testified that he was general agent for his wife, Mrs. S. J. McLeod, and that he rented land to O'Neal for 1889 for $825, for which O'Neal gave his note; that this note was assigned to Faison; that O'Neal did not pay this note; that he (McLeod) paid $211.91 and $250 on this note in 1890, and that Faison obtained judgment for the balance; that the mortgage was given to secure what had been paid on the note, and the amount of the judgment; that O'Neal paid the balance of the judgment, and paid Mrs. McLeod $110; that $279.60 was due Mrs. McLeod at the time the $110 was paid, and, crediting this, $169.60 is due. At

the final hearing there was a decree against defendants for $169.60, with 10 per cent. interest; and the mortgage was reformed, and a sale under it decreed by the court. From this decree, defendants appeal.

Thomas R. Baird, for appellants. Baker & Moody, for appellee.

WHITFIELD, C. J. The action of the court below is correct in all things, save the amount for which decree was entered. The parol statement of McLeod that $169.60 was due cannot control the statements of the written contract (the notes and the trust deed) as to what amount would be due. The parol testimony could not enlarge the liability, which is measured by the written contract. The decree is, as a simple computation shows, manifestly for too much. But, as there is some uncertainty about the dates of payment, we reverse and remand for a decree below in the proper amount. So or

dered.

Suggestion of Error.

The following suggestion of error was filed by counsel for appellee: "As counsel for appellee, we desire to suggest that error was made in the opinion of the court, rendered through Chief Justice WHITFIELD, in the above-styled cause, on the 9th day of April, 1900, which, we are satisfied, was occasioned by a misapprehension of the facts in the case, in supposing that the notes and deed of trust in controversy were intended to secure the payment of the judgment recovered by G. W. Faison. This is not the case. The bill alleges that on the 14th day of June, 1897, appellants Ireland O'Neal and Tennie O'Neal were indebted to appellee in the sum of about $450, and that on the said 14th day of June, 1897, the said defendants, in order to secure to complainant the prompt payment of said indebtedness, made, executed, and delivered to her the following promissory notes, to wit: One for $250, due November 15, 1897; one for $200, due November 15, 1898; said notes bearing ten per cent. interest from date,and, in order to secure the prompt payment of said notes, executed the deed of trust on the land in the original bill of complaint described. In the answer of Ireland O'Neal and Tennie O'Neal, 'they deny that they were indebted to said complainant in any sum at the time, and state to the court that the two notes, and the deed of trust to secure the same, were made, by agreement between C. H. McLeod, agent for complainant, and your respondent Ireland O'Neal, to pay off and settle a certain judgment rendered at the November term, 1892, of the circuit court of the said county and state, against said complainant and respondent Ireland O'Neal, for the amount of $425, in favor of G. W. Faison & Sons, which judgment the said C. H. McLeod, agent, etc., at the time of the execution of said deed of trust, promised this respondent, Ireland O'Neal, had been or would be paid off and satisfied, and that the same

would no longer be a charge against or trouble this respondent.' The court will observe here that the answer states that the notes and deed of trust were to secure the judgment which had been or would be paid off and satisfied by Mrs. S. J. McLeod; in other words, to secure what Mrs. McLeod had paid or would pay on the judgment,-not the judgment itself, but what she had paid or would pay on it. The bill alleges an indebtedness of about $450, which the notes evidenced; and we take it that there can be no doubt but that the appellee had a perfect right to show the true consideration of the notes, or, in other words, to what extent appellants were indebted on said notes. The proof shows that on November 15, 1892, G. W. Faison recovered a judgment against Ireland O'Neal, as principal, and Mrs. S. J. McLeod, as surety, for $425. The interest on this judgment at 6 per cent. from that date to March 23, 1897, would amount to $110.22; making due at that time on the judgment itself $535.22. At that time nothing had been paid on the judgment, and on that day, to wit, March 23, 1897, Mrs. S. J. McLeod paid on it $225, and on March 29, 1897, she paid the costs in the suit, amounting to $39.60; making a total paid by her of $264.60. These two amounts so paid are evidenced by receipts of R. P. Miller, sheriff, filed with the deposition of C. H. McLeod, to which we direct attention. The said amounts were paid in pursuance of an agreement had with J. H. Wynn, the attorney of G. W. Faison. See J. H. Wynn's deposition. In order to secure to Mrs. S. J. McLeod the repayment of the amount paid by her on the judgment, and also the costs paid by her, as well as to secure to her the repayment of any other amount which she should pay on the judgment, the appellant on June 14, 1897, executed the two notes and deed of trust in controversy. That this is true is clearly shown by the depositions of C. H. McLeod and Mrs. S. J. McLeod, as well as that of Ireland O'Neal, found in the record in this cause, to which we refer the court. There can be no doubt but that we are correct in this, and if the court will examine the depositions of these parties, above referred to, you will see that we are correct. The amount mentioned in the decree, of $169.60, was not ascertained solely from the deposition of C. H. McLeod, but was ascertained by calculating and adding to the principal the interest at 6 per cent. on the $225 paid March 23, 1897, and the $39.60 paid March 29, 1897, from those respective dates to March 16, 1898, the time at which the $110.95 was paid by Ireland O'Neal to the son of Mrs. S. J. McLeod, which she received, and deducting from the total amount so ascertained said $110.95, which would leave due the amount named in the decree, $169. The court will bear in mind that the notes and deed of trust were not executed for the purpose of securing the payment of the judgment, but they were executed for the purpose of securing to Mrs. S. J. McLeod the

amounts paid by her on the judgment, namely, the $250 and $39.60 above referred to, as well as to secure to her such other amounts as she might thereafter pay, either voluntarily or involuntarily, on said judgment. It cannot be said that parol testimony was introduced to enlarge the liability of appellants, which was measured by the written contract, for the fact is that the parol testimony lessens the liability, rather than enlarges it. The written contract evidenced by the notes and deed of trust was to secure a debt aggregating $450, whereas the parol testimony shows that the amount due was only $264.60, the aggregate amount of the two payments, $225 and $39.60, with interest thereon at 6 per cent. The opinion states that 'the decree is, as a simple computation shows, manifestly for too much.' In this the court erred, as we will now show you. The interest on $264.60 from March 29, 1897, the date of the last payment by Mrs. McLeod to the sheriff, to March 16, 1898, the date the payment of $110.95 was made by Ireland O'Neal to the son of Mrs. McLeod, shown by the receipts filed as exhibits to his deposition, amounts to $15.26; making a total due at that time (namely, March 16, 1898) of $279.86. If you deduct from this amount the amount paid on that day to Mrs. McLeod, $110.95, it would leave due $168.91, on which interest should be added at 6 per cent. from that date to May 11, 1899, the date of the decree, which would have made the amount due in excess of the amount shown in the decree by several dollars. All the amounts paid by Ireland O'Neal, with the exception of the $110.95 above referred to, were paid on the judgment to G. W. Faison, and not to Mrs. S. J. McLeod. We submit, therefore, that the court has erred in its opinion in this cause, and ask that the judgment of reversal be set aside and one of affirmance entered."

PER CURIAM. Suggestion of error denied.

VELIE V. BREEN.

(Supreme Court of Mississippi. May 21, 1900.) EQUITY-SUPPLYING ACKNOWLEDGMENT TO

CONVEYANCE.

A bill for relief, because a conveyance given complainant by defendant was not acknowledged, and defendant refuses to acknowledge it, cannot be maintained, as there being a subscribing witness, and no allegation that proof of execution cannot be made by him, complainant may have adequate remedy without the suit.

Appeal from chancery court, Bolivar county; A. McC. Kimbrough, Chancellor.

Suit by D. J. Breen against S. H. Velie, Jr. Demurrer to bill was overruled, and defendant appeals. Reversed.

Appellee, who was complainant below, filed his bill in the chancery court of Bolivar county against appellant, who was defendant be

low, to ascertain and establish his title to certain lands and other property described in the bill by decree of the court, and to have a certain conveyance directed to be recorded. The bill alleges that on the 24th day of October, 1891, complainant and defendant entered into a certain agreement, whereby, and for the consideration stated in said agreement, said defendant sold to complainant certain lands described in the bill, together with an undivided half interest in a saw mill; that said agreement was duly signed by complainant and defendant, and delivered to complainant by defendant, and was witnessed by one A. R. Ebi; that said conveyance was in every respect formal, and was duly and fully executed by the parties thereto; that said defendant neglected and failed to acknowledge the said instrument in the manner required by law, and by reason of such failure the said instrument cannot be admitted to record; that said defendant unjustly, and without any good or sufficient reason therefor, refuses to acknowledge said instrument; that, because of such failure to acknowledge said conveyance, the title in and to said property is clouded, and the record shows that the title is not in complainant, but in defendant. The agreement of conveyance was marked "Exhibit I," and filed with the bill. The prayer of the bill is that the rights of complainant in and to said property conveyed to him by the terms of said conveyance be ascertained and established by decree of the court, free from the cloud thereon by any claims thereto on the part of de fendant or any one claiming through him, that said conveyance be directed to be recorded, and for general relief. To this bill defendant demurred, showing the following grounds of demurrer: First, the indenture or agreement on its face does not convey any of the land described in the bill; second, said indenture or agreement is void for want of any legal consideration; third, that said indenture is not enforceable in equity, because upon the face thereof the consideration therein mentioned is grossly inadequate; fourth, that said instrument is so uncertain in its tenor and effect that a court of equity will not enforce it, for the true meaning and interest of the parties cannot be arrived at. From a decree overruling the demurrer, the defendant appeals.

Scott & Woods and Harwood & Meredith, for appellant. Moore & Clark, for appellee.

TERRAL, J. The demurrer to the bill of complaint in this cause should have been sustained. The complainant may have adequate remedy or relief without any suit in equity. There is a subscribing witness to the conveyance, and by him proof of the execution of the instrument may be made. The bill alleges that the defendant refuses to make the acknowledgment of the conveyance; no similar allegation is made in regard to the subscribing witness. The decree of the court

In an action by a widow against a railroad company for causing the death of her husband, an employé, prior to 1896, it appeared that a freight car standing on a siding became dislodged, and ran down the grade onto the main track, where the decedent's engine collided with it, causing his death. The car was not blocked as required by the company's rules, but it was securely braked, so as to render its being moved by any natural cause very improbable. A severe wind was blowing shortly prior to the accident in the direction in which the dislodged car moved. Held, that the evidence did not support a finding of negligence in the company in failing to provide a safety switch, operating as the proximate cause of the injury, the failure to block the car being the act of a fellow servant, and it being incumbent on defendant to furnish only a reasonably safe track and appliances.

Appeal from circuit court, Lafayette county; Z. M. Stevens, Judge.

"To be officially reported."

Action by Mrs. J. A. Woolley against the Illinois Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Appellee, Mrs. J. A. Woolley, brought this suit against appellant, the Illinois Central Railroad Company, to recover of it damages for the killing of her husband, an engineer, who was in the employ of appellant at the time of his death, which occurred in November, 1895, by reason of colliding with a box car which had been left on a side track at Lamar station, and which had by some means rolled to the main track. At the time of the killing said Woolley was running through the said town in the night at a high rate of speed. From a judgment awarding plaintiff $15,000 damages defendant appeals. The opinion contains a further statement of the facts.

Mayes & Harris and J. M. Dickinson, for appellant. Stone & Siveley, for appellee.

CALHOON, J. The death of plaintiff's husband having occurred on November 25, 1895, and before the act of 1896, and he being an employé of the company, his widow could not sue, basing her action on section 193 of the constitution as to fellow servants, as was held in Railroad Co. v. Hunter, 70 Miss. 471, 12 South. 482. This she concedes, and therefore she places her right to sue on the case of White v. Railway Co., 72 Miss. 12, 16 South. 248, which holds that she may sue where her claim is not on the ground that the death was caused by the negligence of a fellow servant, but because of the negligence of the company in not providing a safe railway. Such right to sue for the company's

negligence that case holds to exist independently of the constitutional provision. It follows that if the negligence of the company showed a want of ordinary care, and was the proximate cause of the death, in this case, Mrs. Woolley had a right of action; otherwise, not.

On this line of inquiry, the facts, viewed most strongly for her, are that the company had a side track at its station (Lamar) that, starting from its switch junction with the main track, ran south to the north end of the depot house about 450 feet, and thence on south past the house; that from the house north towards the main track there was a down grade; and that this siding had been there as it then was for 14 years certainly, and how much longer is not in evidence. The proof undisputed is that an empty box car had been on this siding two or three days. About two hours before the accident a freight train had run in on this siding, and had to move this car, but before leaving left it about where it was before, and a brakeman had set the brakes. They (the brakes) were in perfect order, and of the kind in use for cars of that sort not provided for air brakes, but the car was not blocked in addition to setting the brakes. This car, standing where it then stood, with proper brakes on it, could not have been blown down the siding to the switch. It would have blown over first. If, in addition to the application of the brakes, it had had its wheels blocked, the impossibility would have been absolute, even if it had not been absolute before. It was standing there when the depot agent went to supper. After dark that night there was a severe wind and rain storm blowing from south to north, or from southwest to northeast. At about 7 o'clock that night Mr. Woolley, the deceased, was the engineer of a passenger train coming south, running at the rate of 35 to 40 miles an hour, the night being very dark, and his engine ran into this same car, which, by some means or other undisclosed by testimony, had moved from its place at the depot or cotton platform, equally far or further down to the switch junction, and protruded over the main track. Mr. Woolley was instantly killed.

The rule of duty of a master to his servant is not so strict as his duty to the public who hire his services for transportation. He is held only to reasonable care in furnishing his servants with safe ways, appliances, and machinery, and, in an action for damages, the servant is held to make it clear that the negligence of the master was the proximate cause. Nor is a railroad company bound to furnish its employés with an absolutely safe track, the requirement being that it shall be reasonably careful in keeping it in safe condition. 14 Am. & Eng. Enc. Law, 879. It is not actionable negligence in itself for a railroad company to have grades on its main tracks or its sidings, so far as its employés are concerned. All they can require is that reasonable precautions are taken to prevent danger

ous results. Whether the box car in the case before us was in fact left standing on an incline, or, as the great preponderance of evidence is, on a level beyond the incline, is of no consequence, unless the incline was the proximate cause of the injury, and that some intervening act of negligence of other employés of the company was not the proximate cause. Because, by reason of the incline, a car might at some time be left unblocked by the disobedience of rules and orders by other employés, and because a wind of sufficient force might some time arise, and might be blowing in the right direction, and might move the car to the main line, and might protrude it over the main track, and an engineer • might not see it, and might run on it, and be killed, is not sufficient to show actionable negligence on the part of the company, where the intervening negligence of a servant left the car so it could be so moved. It is perfectly plain that the car with brakes applied was absolutely safe. How it was moved no one can say. We know, however, by evidence uncontradicted, that, if the car had its brakes properly applied, the wind could not have done it. "In order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence, and that it was such as might or ought to have been foreseen, in the light of the attending circumstances." 16 Am. & Eng. Enc. Law, 436.

Now, by the rules of the company in proof, cars left on sidings are required to have their brakes properly set, and, if the brakes are out of order, have their wheels blocked, and, in all cases where they are left on a grade, the wheels must be blocked, in addition to the brakes being properly set. If the car in the instant case was left on a level, and had its brakes set, the proof undisputed is that it was safe. If it was left on a grade, the duty of the employés was both to brake and to block it. This car was not blocked. A failure to obey these orders was the negligence of the employés, and not of the company, and was the proximate cause of the injury. If these orders had been obeyed, harm was not only improbable, but impossible. If they were not obeyed, the company is not responsible. Remembering that before plaintiff can recover in her action, brought when it was, the burden is on her to show that the proximate cause of the death actually was the negligence of the company, and not merely that it might have been so caused, as held in Railroad Co. v. Cathey, 70 Miss. 332, 12 South. 253, announcing an old and well-recognized principle, and it follows that recovery cannot be had because no safety switch was provided. If this needed any further mention, it is enough to say that all employés are chargeable with notice of the rules. By the terms of one of these, they knew that some switch tracks were on grades, and that in such cases employés were charged with the duty of braking and also blocking the