lived; that the insurance company declines to change the beneficiary of said policy without her consent; that it would be inequitable and unjust for said defendant, in view of her unlawful conduct, to be allowed to collect this policy in the event of complainant's death. The prayer of the bill is for divorce from defendant, and also for the cancellation by the court of defendant's interest, right, and title in and to the insurance policy. At the first term to which the cause was triable, a demurrer was interposed by defendant to complainant's bill. The demurrer was overruled, and defendant answered, denying all the allegations of the bill, and made her answer a cross bill. To defendant's answer and cross bill complainant filed an answer. The cause was tried on the original bill and answer thereto, the cross bill and answer thereto, and on oral proof relating to both the insurance policy and the divorce suit. A decree was rendered by the court in favor of complainant, granting a decree of divorce, and also everything prayed for in the bill in reference to the insurance policy. From this decree, defendant appeals.

Hebron & Kinnison and Shields & Boddie, for appellant. J. H. Wynn, for appellee.

WHITFIELD, C. J. The demurrer, being to the whole bill, was properly overruled, since it was a good bill for divorce. The decree recites expressly that the oral proof was taken by agreement, and there is no bill of exceptions. This recital is conclusive, and makes the case of Cox v. Kyle, 75 Miss. 667, 23 South. 518, inapplicable. Besides, under section 1571, Code 1892, oral testimony is always proper in divorce cases, and as to that feature of this case no notice or agreement was necessary, under section 1764. The decree as to the divorce is affirmed.

It was, however, manifest error to award the policy to the appellee. The contract (the policy, that is), by its terms, conferred a vested interest on Mrs. Grego, irrevocable by appellee or by any court. The court had no more power to take from appellant this policy, her property vested by contract,than to take from her anything else that was her sole property. This is an ordinary life policy. Divorce has no effect upon that property which is the wife's solely. 3 Am. & Eng. Enc. Law (New Ed.) p. 980, par. 4, and notes; Bank v. Hume, 128 U. S. 195, 9 Sup. Ct. 41, 32 L. Ed. 370. This is not a policy in a benefit association, whose constitution and laws expressly authorize the member to change the beneficiary at will, as were the policies in Tyler v. Association, 145 Mass. 134, 13 N. E. 360, and Schonfield v. Turner, 75 Tex. 324, 12 S. W. 626, 7 L. R. A. 189. This is an ordinary life policy, under the express terms of which the whole beneficial interest was vested solely in the appellant. Neither the appellee nor the courts could take that which was hers solely from

her. That would be depriving her of her property without due process of law. The law as to this is well settled, and is quite independent of any statutory basis, resting upon the terms of the contract itself. Bank v. Williams (Miss.) 26 South. 965, and authorities therein cited.

We do not think the case one to be remanded for amendment, on the theory of reforming the contract so as to show that the policy was to be the wife's only while she was wife. The policy and the testimony in Goldsmith v. Insurance Co., 18 Abb. N. C. 325, well warranted reformation. But there is no hint in the policy or the testimony here of any such purpose. The parties here made their case and framed their issues on no such theory; and it is too late to ask, in this court, for the first time, that the case be remanded for an amendment for a purpose, the existence of which is not only not hinted at in the record, but in the face of the contract, and of the construction put upon it by all parties in their pleadings. An amendment to that end should have been asked below on proper showing, and then, if denied, we might have remanded, allowing the amendment. But, in the attitude of this case, we think the request comes too late. The decree as to the divorce is affirmed. As to the relief sought touching the policy of insurance, the decree is reversed, and the bill as to that relief dismissed, without prejudice to any right appellee may have to file an original bill, on the line of reframing the contract.

78 Miss. 173)

WHITE v. LEFOLDT. (Supreme Court of Mississippi. Oct. 29, 1900.) PARTITION-SALE OF PROPERTY-EXCLUSIVE OWNERSHIP.

Under Code, §§ 3097, 3120, 3121, providing that partition must be made between joint tenants or tenants in common, where a complainant owns exclusively the improvements on certain realty in which he has an undivided interest, on partition the realty must be sold independently of the improvements.

Appeal from chancery court, Warren county; W. C. Martin, Chancellor.

"To be officially reported."

Bill by Honora White against Julius Lefoldt for partition. From a decree in favor of defendant, complainant appeals. Affirmed.

In 1894, appellant, who was complainant in the court below, leased a certain lot of land in Vicksburg, Miss., from Mrs. T. H. Woolsy, who was then the owner of said lot, for a term of five years, and by the terms of the said lease the tenant at the expiration thereof had the option of removing improvements put thereon. Afterwards complainant erected a house on said lot at the expense of about $1,200. Appellee, subsequent to the beginning of the lease, instituted a suit against Woolsy and complainant for the whole of the property, and recovered a judgment for one undivided half interest. Com

plainant then purchased the other one-half interest from Mrs. Woolsy, and filed her bill in this case for partition, and asks the court to decree that the lot shall be sold, together with the house, and that the court ascertain the value of the house, and deduct from the proceeds of the sale the said value of the house. Appellee (defendant below) in his answer, objected to this, as being against his interest, and asked that the lot be sold independently of the house. A decree was rendered in favor of defendant, and complainant appeals.

Miller, Smith & Hirsh, for appellant. Dabney & McCabe, for appellee.

CALHOON, J. We know no statute, nor common-law principle, nor adjudication in law or equity, nor sound reason which would, by any stretch, authorize or justify a court of equity, without express consent of the parties, in including in a decree of sale for partition of property owned in common other property owned exclusively by one of the parties. Partition of land must be between "joint tenants, tenants in common, or coparceners" (Code, § 3097); and so of personalty (Id. §§ 3120, 3121). The action of the court below is affirmed, and the cause remanded for such procedure as may be desired and proper in reference to the land exclusive of the house on it, which is the personal property of Mrs. White.

(78 Miss. 187)

FELD et al. v. STEWART.

SAME v. THOMAS.

to each plaintiff, tenants on her place, who were to pay for them the next fall. Plaintiffs made crops with the mules, and in the fall turned over to Miss Miller several bales of cotton to pay on them, which lacked only a small amount of paying the amount agreed on. In November, 1899, Miss Miller died, and Henry Feld & Co. took possession of the mules, and plaintiffs brought suit. At the trial in the court below defendants offered to prove that, at the time each mule was sold by defendants to Miss Miller, it was sold with the express understanding and agreement that it was not to belong to Miss Miller, and title not to vest in her until the mule was paid for, and that when the note was given it was given with the understanding that it was not in settlement of the mule. They also offered to prove that it was the understanding and agreement that, if the mule was not paid for in December of that year, rent was to be paid for it, and that rent was paid for it. To this evidence plaintiffs objected, the objection was sustained by the court, and defendants excepted. The trial resulted in verdicts and judgments in favor of plaintiffs, and defendants appeal, and assign, among other grounds of error, the action of the court in excluding evidence offered by defendants.

Dabney & McCabe and N. B. Field, for appellants. Miller, Smith & Hirsh, for appellees.

WHITFIELD, C. J. The case falls precisely within Machine Co. v. Ringold (Miss.) 19 South. 675. Volking v. Huckabay, 67 Miss. 206, 7 South. 325, is clearly distinguished by its facts. That case presented the

PAROL EVIDENCE.

Parol evidence cannot be received to show that at the time of sale of personalty for which a note was given the parties verbally agreed that the title should remain in the vendor until payment of the price, and, if the price was not paid, it was the understanding that rent was to be paid for the property.

Appeal from circuit court, Warren county; O. W. Catching, Special Judge.

"To be officially reported."

Actions by Robert Stewart and Horace Thomas against Henry Feld & Co. Judgments for plaintiffs. Defendants appeal. Affirmed.

Plaintiffs in the court below sued out writs of replevin against defendants below to recover of each of them a mule of the value of $65, which plaintiffs alleged was wrongfully detained by defendants. The mules in controversy were in January, 1899, bought from defendants by one Miss Sallie Miller for the use of tenants on her place. The mules were delivered to Miss Miller at the time of the sale, and a short time afterwards she executed to Henry Feld & Co. her promissory note, payable the following December. Some time after buying the mules from Henry Feld & Co., Miss Miller sold a mule

all. The finding the representations to be true was the contingency upon which the sale was to be made at all. The question was, had there been a sale at all? not whether, there being a sale the terms of which were in writing, that sale was conditional or absolute. It is to be noticed, further, in that case that it was denied that there was any note, and there was no objection to any testimony; the case going off on the wrong issue. The distinction in the case at bar between permitting parol proof to show the consideration of the contract-the note-and to add a new term to the contract contradictory of the written terms is obvious.

SIMS v. STATE.

(Supreme Court of Mississippi. Oct. 29, 1900.)

HOMICIDE-MANSLAUGHTER-SUFFICIENCY OF EVIDENCE,

Deceased and defendant lived in adjoining, connected rooms in a house. The only witness of the killing of deceased was a little boy, who was decedent's grandson, who testified that he was sitting outside the house, and near an outside door to decedent's room, when defendant shot deceased, and that the former was standing in the doorway between the rooms, and the

deceased was sitting at a table in his room, and that after he was shot he ran outdoors and fell. Several other witnesses testified that the body of deceased was found outside the house, and that an ax and chair were found near the door of the north room, and a little north thereof. Defendant testified that deceased picked up an ax, and threatened to kill her, and that she got a gun from a rack over the door, and killed him in self-defense. Held sufficient to sustain a verdict for manslaughter.

Appeal from circuit court, Desoto county; Z. M. Stephens, Judge.

Sarah Sims was convicted of manslaughter, and appeals. Affirmed.

At

Appellant, Sarah Sims, was indicted by the grand jury of Desoto county at the November, 1899, term of the circuit court, of manslaughter in the killing of one Ras Granberry, a man with whom she was living, and was tried at the May, 1900, term. There was no one present at the time of the homicide except defendant, deceased, and a little boy, Eddie Green, a grandson of deceased. The record shows that the defendant, deceased, and the little boy, Eddie Green, lived in a two-room house with a partition wall between the rooms; that there was a door in this wall between the rooms; that deceased lived in the north room, and defendant in the south room. There were also doors on the west side of the rooms. the trial Eddie Green testified that he was sitting on a chair on the outside of the house, and near the door of deceased's room, when defendant shot deceased; that defendant was standing in the door between the rooms when she shot deceased while he was eating breakfast at a table in the room, and that deceased jumped up after he was shot, and ran out doors, and fell near the chimney. Several witnesses for the state testified that a short time after the killing deceased was found on the outside of the house, with a wound in his side; that an ax and a chair were found near the side door of the north room, and that the ax and chair were north of the door. Defendant testified that on the night before the killing she went to a frolic, and was gone all night, returning the next morning a little after 6 o'clock; that immediately after her return deceased commenced to curse her, and picked up an ax and threatened to kill her, advancing with the ax drawn, when she got a gun from the rack over the door between the rooms, and shot and killed him. Defendant was convicted, and sentenced to imprisonment for 10 years, and from this judgment she appeals.

R. L. Dabney, for appellant. Monroe McClurg, Atty. Gen., for the State.

TERRAL, J. The appellant stands convicted of manslaughter in the killing of Ras Granberry, and the only contention here made is that the physical facts in the case are so inconsistent with commission of any crime by Sarah Sims that she is entitled to an acquittal. We fail to see how the physical facts of the case of themselves direct a verdict of guilt or innocence. In this as in many other cases

we think the guilt of the defendant is to be determined from the manner of the killing, and that is to be gathered from the whole evidence in the case. If the jury had fully believed the testimony of the defendant, she was entitled to a verdict of acquittal; but there were material circumstances in the case contradicting the statement of the accused, and calling for a decision of the jury upon the merits of the defense, and we see no reason for disturbing the verdict they have found. Affirmed.

(78 Miss. 432)

ALABAMA & V. RY. CO. v. BARRETT. (Supreme Court of Mississippi. Oct. 29, 1900.) RAILROADS-FIRES-NEGLIGENCE-PROPERTY ADJOINING RIGHT OF WAY-EVIDENCE -PROXIMATE CAUSE.

1. The fact that a fire was caused by sparks from a locomotive, and that it was caused negligently, may be established by circumstantial evidence.

2. Proof that a fire was caused by sparks from defendant's locomotive, and that damages resulted therefrom, is prima facie evidence of the negligence of the defendant company.

3. Where a fire is negligently caused by sparks from a locomotive, the railroad company is liable for damages to property which does not adjoin its right of way, and to which the fire is transmitted after it has burned its way through the adjoining property.

4. Where a fire is negligently caused by sparks from a locomotive, and property not adjoining the right of way is damaged, the length of time the fire has been burning, and the distance to the property from the right of way, while not determinative, may be considered in determining if the negligence of the company was the proximate cause of the injury.

Appeal from circuit court, Hinds county; Robert Powell, Judge.

"To be officially reported."

Action by Mrs. Dorsey Barrett against the Alabama & Vicksburg Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Plaintiff sued the defendant below to recover of it damages for the burning over certain lands and the destruction of trees, grass, fences, etc., by fire, which plaintiff alleged, in her declaration, was negligently set out or permitted to start from sparks from a passing train on defendant's railway track. The lands the burning over of which is complained of do not adjoin the railway track or its right of way, but are separated from the right of way by the lands of others. The evidence in the case shows that the fire started near the edge of the right of way, and was discovered soon after the passage of one of defendant's trains, and that it burned over the adjoining lands, and reached plaintiff's lands. A plea of the general issue was filed by defendant, and at the trial the defense was made that the cause was too remote. A trial by jury was had, and resulted in verdict and judgment for plaintiff.

McWillie & Thompson, for appellant. Williamson, Wells & Groom, for appellee.

WHITFIELD, C. J. There is no more reason why circumstantial evidence should not be sufficient to establish the fact that a fire was caused by sparks from a railroad locomotive, and that it was so caused negligently, than that it should not be sufficient to establish any other fact susceptible of proof in that way. The damages were the natural and direct consequence of the negligent act of the defendant in setting the fire. This court has held that proof of such fire and damage from it makes out a prima facie case. Louisville, N. O. & T. Ry. Co. v. Natchez, J. & C. R. Co., 67 Miss. 399, 7 South. 350. The defendant did not meet this burden of explanation and exculpation. This court is also committed to the doctrine that the owner of property destroyed by such a fire, though his property be not on land adjoining the railway, and is only reached by the fire after it has burned its way across the land or buildings of another, can recover for such loss against the railroad company (Tribette v. Railroad Co., 71 Miss. 212, 13 South. 899); and it is the well-settled doctrine, according to the overwhelming weight of modern authority. Among many cases, see Railroad Co. v. Williams, 131 Ind. 30, 30 N. E. 696; Poeppers v. Railroad Co., 67 Mo. 715. We have carefully read the opinion of Haight, J., in Hoffman v. King, 160 N. Y. 618, 55 N. E. 401, 46 L. R. A. 672, as well as the opinion of the two dissenting justices, and regard the dissenting opinion as much the more accurate statement of the law. In that case the fire had burned two days, and passed over more than two miles of country, before reaching the plaintiff's land. We do not mention these facts, however, as determinative; for, in the true logical view, neither time nor distance nor both are conclusive of the remoteness of the damages, but are proper elements to be looked to, in the particular circumstances of each case, in arriving at a conclusion as to whether the damages are, in any given case, the proximate or remote consequence of the defendant's act. Affirmed.

(78 Miss. 91)

ROOKS v. ALABAMA & V. RY. CO. (Supreme Court of Mississippi. Oct. 29, 1900.) INJURY TO STOCK-NOXIOUS LIQUIDS-RAILROAD WRECK-PROXIMATE CAUSE. Defendant operated a railroad having a switch in an open field, where plaintiff had the right and was accustomed to pasture his cows. While a train was on the switch some cars containing cotton-seed oil broke loose, and were wrecked, and the oil spilled on the ground, filling holes and low places, where it remained several days. Defendant made no effort to drain off the oil, or prevent cattle from having free access to it. Plaintiff, not knowing of the accident, permitted his cows to graze as usual, and they licked up the oil, and from its effects died. Held, that the acts of the railroad company were not the proximate cause of the damage, and a judgment against it was erroneous. Appeal from circuit court, Warren county; W. K. McLaurin, Judge.

"To be officially reported."

Action by H. Rooks against the Alabama & Vicksburg Railway Company for damages for the death of two cows. Judgment for plaintiff. Defendant appeals. Reversed.

Appellee, who was plaintiff in the court below, brought this suit against appellant, defendant below, in the circuit court of Warren county, to recover the value of two cows averred to have been killed by drinking cottonseed oil which had escaped from the company's cars. The case was tried upon the following agreed statement of facts: "That the defendant owned and operated a railroad in said state and county; that defendant owned and used a switch track of said railroad, located in the Second supervisor's district of said county; that said switch track extended several hundred yards through an open unfenced field or common, on which for the past twenty or thirty years the cattle of those citizens living in that section of the county had been accustomed to graze, without the objection of any one; that the plaintiff had been accustomed to use said field for grazing his cattle for several years past, and had the right so to do; that the employés of defendant, knowing that plaintiff's and other cattle were grazing on said lands on the day of —, were pulling, by means of a locomotive, a train of cars, at the end of which were several tank cars filled with cotton-seed oil, each tank containing about five thousand gallons of oil; that, while said train was being moved over said switch track, several of said cars broke loose from said train, and ran back, down and along said switch track, to the end thereof, where was situated a large post or bumper; that said cars ran into said bumper, and two of the oil tanks were broken and smashed so that the oil in the said tanks was spilled out upon the ground, and ran over the adjoining lands, not owned by defendant, and filled up the water holes and low places for several hundred yards adjoining; that the defendant made no effort to remove or drain off said oil, or to prevent cattle from having free access to it, and said oll remained on said lands for four days, without the actual knowledge of defendant; that the said oil had so accumulated on the ground, and in the holes and low places, but defendant knew that said tank was smashed, and that the oil was running out, and took no steps to ascertain if the oil was accumulated in said holes and low places; that plaintiff, not knowing of said accident, allowed his cattle, as usual, to graze on said lands, and they licked up, swallowed, or drank some of said oil, and were made sick thereby, from which sickness the said cows died." The trial resulted in a verdict and judgment for plaintiff, and defendant appeals.

McWillie & Thompson, for appellant. VolJer & Mounger, for appellee.

CALHOON, J. We cannot hold that the damage in this case can be referred to the railway company as the proximate cause. Meyer v. King, 72 Miss. 1, 16 South. 245, 35

1. Under a policy of fire insurance issued at the request of the mortgagee of the property, and payable to such mortgagee as interest may appear, balance to assured, the mortgage having been paid, the assured may maintain an action at law in her own name for any balance.

2. A provision in a policy of fire insurance that no action shall be maintainable thereon unless commenced within 12 months after the fire is waived by representations of an agent that the company will pay without suit, and requesting plaintiff not to sue.

3. Under Pamph. Acts 1894, p. 51, providing that insurers cannot deny that the value of the property is that on which the insurance is calculated, nor that the amount of the policy is but three-fourths the valuation, a foreign insurance company issuing a policy at the request of the mortgagee residing in another state cannot deny that the amount of the policy was but three-fourths of the value of the property, since such law binds both foreign and domestic companies.

Appeal from circuit court, Washington county; F. A. Montgomery, Judge.

"To be officially reported."

Action by Bridgett Enslie against the Scottish Union & National Insurance Company to recover for a loss by fire. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellant (defendant in the court below) is a corporation domiciled in Connecticut, and is engaged in the insurance business. In July, 1895, appellant issued a policy at the instance and request of the Southern Home Building & Loan Association of Atlanta, Ga., thereby insuring against loss by fire a building, the property of appellee, in Greenville, Washington county, Miss. Appellee was a resident of Greenville, Miss., and was indebted to the above-named association, and had conveyed said building in trust to secure the payment of said indebtedness. The policy provides for the payment of three-fourths of the value of the property described, not to exceed $1,750, and has embodied therein the usual clause for the benefit of the mortgagee. The policy also contains the following clause: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire." On the 2d day of November, 1895, the house described in the policy was destroyed by fire, and on November 13, 1896, appellee filed her declaration in this suit against the Scottish Union & National Insurance Company for the amount of the policy. Appellant had a

valuation of the house made, and paid to the loan association of Atlanta $1,020.27; that being three-fourths of the estimated value, and the interest of the association in the building being equal to or exceeding the sum so paid. To the declaration the defendant pleaded the general issue, and gave notice of special matter; the chief defenses relied on by appellant in the trial court being that proof of loss was not made within the time required by the conditions of the policy, and that the suit was not brought within the period required by the terms of the policy, and was therefore barred; that the contract was a Georgia contract, and governed by the laws of that state; that appellant was liable for only three-fourths of the value of the property, which sum had been paid to the loan association. Plaintiff replied to the special matter, seeking to avoid the effect of the clause of the policy as to the time of bringing the suit by a verbal waiver of this condition by W. E. Metzer, an agent and adjuster of appellant, made to the husband and agent of plaintiff. There were verdict and judgment in favor of plaintiff for the face of the policy and interest, less what had been paid the building and loan association, and defendant appeals.

Griffin & Larkin, for appellant. Jayne & Watson, for appellee.

CALHOON, J. The policy of fire insurance here is payable, in case of loss, "to Southern Home Building and Loan Association of Atlanta, Ga., as interest may appear; balance to assured." The interest of this association, the mortgagee of Enslie, having been paid, she had a right of action in her own name at law for any balance. It has been repeatedly and very recently held that the cause in policies limiting the time for suit may be waived by representing that the company will pay without suit, and requests not to sue. Galloway v. Insurance Co., 45 W. Va. 237, 31 S. E. 969, and cases cited; Metcalf v. Insurance Co., 21 R. I. 307, 43 Atl. 541. Such clauses are for the insurer's benefit, and are strictly construed, to prevent forfeiture. We approve the doctrine of these cases, and, as this record shows evidence of such waiver, we will not disturb the finding of the jury.

The policy was issued after the act of 1894 (Pamph. Acts 1894, p. 51), and insurers cannot deny that the value of the property was that upon which the insurance is calculated, nor can they deny that the amount of the policy was but three-fourths the valuation; and all companies, foreign and domestic, are bound by it. If they take a risk in Mississippi, her laws and public policy for the protection of her people must govern; and it is not to be tolerated that they may escape by any law of the place of the issuance of the policy the law of this state as to the threequarter clause. This law is to protect our citizens. Affirmed.