stable. How this horse which was injured escaped from the stable and came to the cesspool no witness attempts to explain. Plaintiff, supported by the testimony of the defendant, states positively that at no time during the tenancy had the front yard been used by animals for grazing or to be in. The nearest part of the cesspool to the alley, along which plaintiff took his horses to and from the barn, was several feet therefrom; besides, there was a fence between the cesspool and the alley. The front yard had no fence dividing it from the street. The only fence mentioned in the record is that running from the street along the alley back to the barn, and this fence divided the alley from the front and side yard in which the cesspool stood. There is no testimony as to the existence of any gate or passageway from the barn lot to the front or side yard. Nor is there any testimony that any horses or stock of any kind had ever been permitted to be in the front or side yard where the cesspool was situated. No guard or fence was built around the cesspool so as to prevent persons or animals walking thereon. So far as the record shows, the only way this horse could have reached the place where the cesspool stood was to go down the alley to the street and come back into the front yard, or to go over some neighboring property and then into the front yard.

[2] Under this state of facts we see no liability on the part of the defendant for this accident. And since the trial court in sustaining the motion for a new trial did so through a mistake in construing the law, it is our duty to reverse its order. Barr v. Hays, 155 S. W. 1095.

all inferences reasonably deducible, that it was never within the contemplation of the parties to the rental contract that that portion of the premises in which the cesspool stood would be subjected to the weight of a horse or that that part of the premises would be used by the tenant for horses to run on. Had the cesspool been located in the barn lot where horses could reasonably be expected to be kept, or had some member of the plaintiff's family in walking over the cesspool been injured by the breaking of the plank covering, a different case would be presented.

[7] The rule is well stated in the case of Christy v. Hughes, 24 Mo. App. 275. In that case a demurrer was sustained on a stronger showing than that made by the plaintiff in this record because the hogs which got under the house were running at large and were in a place where they had stayed and had ranged for some time, whereas in the present case the plaintiff testified he never allowed the horses to be in the front yard. The decision of that case, as summarized in the syllabus, is as follows: "In the action for consequential damages resulting from the negligence of the defendant, it devolves on the plaintiff to show that there was such connection between the negligent act and the injury as to bring it within the reasonable contemplation of the actor that such injury would naturally and probably result, from such act, and such as ought to have been foreseen by the defendant as likely to flow from his act." To the same effect are the cases of Boone v. Railway Co., 20 Mo. App. 232, and Gilliland v. Railroad, 19 Mo. App. 411, where the same question is discussed.

In the case of Fuchs v. City of St. Louis, 167 Mo. 620, 67 S. W. 610, 57 L. R. A. 136, this language is used: "It is not negligence not to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not reasonably have been anticipated and would not, except under exceptional circumstances, have happened. If the accident was possible, yet, according to ordinary and usual experience, not probable, it is not negligence not to take precautionary steps to forestall it."

[3-5] The action is founded on a tort, not on an express covenant to repair or to keep the premises in repair during the tenancy on the part of the landlord. The law is well settled in this state that, in the absence of a covenant to repair, the landlord cannot be held liable in damages for failure to keep the premises in repair while in the tenant's possession. Nor is there an implied covenant that the premises are in good repair when they are let; the landlord being liable only for acts of misfeasance. Roberts v. Cottey, 100 Mo. App. loc. cit. 503, 74 S. W. 886, and cases cited; Graff v. Brewing Co., 130 Mo. App. 618, 109 S. W. 1044, and cases cited; Marcheck v. Klute, 133 Mo. App. 280, 113 S. W. 654, and cases cited; Korach v. Loeffel, 168 Mo. App. 414, 151 S. W. 790, and cases cited. The landlord, however, would be liable for injuries to the tenant or hisputed, and the intervening agency is manifest, property by reason of hidden dangers, provided the hidden danger in a given case is such that the injury which ensues by reason of its existence is the natural and probable consequence of allowing such dangerous condition to exist. And this is the turning point in the case at bar.

[6] The evidence clearly shows, giving the plaintiff the full benefit of all its weight and

Again in the case of Hoag & Alger v. Railroad, 85 Pa. 293, 27 Am. Rep. 653, which has been cited with approval by our courts, the following holding is announced: "Where it is alleged that an injury arose from negligence, the question of the proximate cause is to be decided by the jury upon all the facts of the case; but where the facts are undis

it is not error for the court to withhold the evidence from the jury. In determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence, such a conse quence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act."

The rule is thus declared in Am. & Eng. | gotten away and strayed into the yard where Ency. Law. vol. 8, p. 601: "An individual, this cesspool was located, because it was not however, is not presumed to contemplate the contemplated by either of the parties at coincidence of events having no probable or any time that the place where the cesspool natural connection in the mind and which was located would be put to any such use. cannot by prudence, circumspection, and ordinary thoughtfulness be foreseen as likely to happen in consequence of the act in which he is engaged."

Thompson in his work on Negligence, vol. 1, § 956, states the rule in these words: "In taking care to use his own property so as not to injure his neighbor, one is not bound to look beyond the natural and probable consequences of the act he is about to perform. Thus, if a man, in clearing his uninclosed land of timber, in a new country, sets a tree on fire and then leaves it to burn down and fall, he will not be liable to pay damages if it fall on his neighbor's horse, happening to stray there."

The case of Teis v. Smuggler Mining Co., 158 Fed. 260, 85 C. C. A. 478, 15 L. R. A. (N. S.) 893 (opinion by Judge John F. Philips), reviews many decisions and text-writers on the subject of proximate and remote causes and the interposition of independent forces and agencies. The logic of that opinion is unanswerable and declares the correct principles of law, and the reader who desires to examine this subject in greater detail than is attempted here would do well to read

that case.

The case of Marcheck v. Klute, supra, turns on the question of the duty of the landlord to keep the floor safe where the chute was located for the use to which it was put in that case, namely, as a place for the tenant's children to play. In the course of the opinion it is said: "Defendants were under no duty to keep the floor safe for their use in that manner."

So, in the present case, there was no legal duty upon the defendant to keep the front or side yard and the top of the cesspool safe to guard against the use to which the yard

happened to be put by plaintiff's horse.

[8] It is within the knowledge of every one that front yards in cities are not to be used as stable lots and places in which live stock will be expected to roam. The evidence of the plaintiff wholly fails to account for the manner in which the horse reached the cesspool. That plaintiff did not expect the horse to be in the yard is shown by his testimony that he never let the horses in the front yard, and that on the night before the horse was injured he went to the barn about 9 o'clock and saw that this particular horse was securely fastened in the stable. Under this state of facts, the landlord owed the tenant no greater duty concerning this horse than he owed every other horse owner in the city of Springfield whose horse might have

[9] The law is well settled in this and many other jurisdictions that the owner of uninclosed land is under no obligation to make it safe for pasturage, and, if stock stray upon it and sustain injuries by falling in a well or other excavation, there is no liability resting on the landowner for such loss. Hughes v. Railroad, 66 Mo. 325; Turner v. Thomas, 71 Mo. 596; Peek v. Western Union Tel. Co., 159 Mo. App. 148, 140 S. W. 638; Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74, 3 Am. St. Rep. 557; Witte v. Stifel, 126 Mo. 295, 28 S. W. 891, 47 Am. St. Rep. 668; Grindley v. McKechnie, 163 Mass. 494, 40 N. E. 764; Knight v. Abert, 6 Pa. 472, 47 Am. Dec. 478.

The evidence in this case is that the cesspool was not situated close enough to the alley to make the use of the alley, in an ordinarily prudent manner, dangerous; besides, the undisputed evidence is that between the cesspool and the alley there was a fence. Thompson on Negligence, vol. 1, § 945, states the general doctrines applicable to the subject in hand, saying, among other things: "The owner or occupier of land is under no obligation to make it safe for the benefit of the owners of domestic animals which are permitted to run at large, and this irrespective of the question whether the rule of law in the particular jurisdiction requires the owners of animals to restrain them, or whether it permits them to run at large and requires the owners of cultivated fields to fence their cultivations." The author just quoted also gives the two exceptions to this rule, one of which is that, if it is an attractive nuisance, he must pay damages, and the other is that, if it is near enough to a pathway or highway such highway might tumble in, the owner so that a person or animal lawfully using

would be liable. The facts as stated in this opinion fail to bring this case within either exception.

At the close of the evidence the court

should have sustained defendant's motion for a directed verdict.

As the case was put to

the jury and they found for the defendant, it was error to disturb their finding, and the judgment first rendered was the proper one in this case.

It is therefore ordered that this cause be remanded, and that the trial court set aside its order granting plaintiff a new trial and enter a judgment on the verdict.

ROBERTSON, P. J., and STURGIS, J.,

concur.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 896, 929-938; Dec. Dig. § 267.*]

3. PARTITION (§ 55*)-PETITION.

Under the direct provisions of Rev. Civ. St. 1911, art. 6097, subd. 3, a petition for statutory partition is insufficient when not giving an estimate of the value of the premises.

[Ed. Note. For other cases, see Partition, Cent. Dig. 88 148-159, 182; Dec. Dig. § 55.*1 4. PARTITION (§ 34*)-STATUTORY PARTITION

EFFECT.

Rev. Civ. St. 1911, art. 6097, providing a statutory mode of partition, is not exclusive and does not deprive the courts of their equitable power of partition.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 88, 90; Dec. Dig. § 34.*]

5. PARTITION ( 55*) - PROCEEDINGS - PETI

TION.

A petition for equitable partition need not state the estimated value of the property.

[Ed. Note. For other cases, see Partition, Cent. Dig. §§ 148-159, 182; Dec. Dig. § 55.*1 6. APPEAL AND ERROR (§ 882*)-PERSONS ENTITLED TO ALLEGE ERROR.

Where defendants by their answer sought partition of the land in suit, they cannot on appeal attack their own pleadings, as insufficient to warrant partition.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]

7. PARTITION (§ 63*) - PROCEEDINGS EVIDENCE-SUFFICIENCY.

In a proceeding for the partition of real estate, the question of value should govern more than the item of quantity, and a judgment rendered without any evidence of value cannot be supported.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 183-185; Dec. Dig. § 63.*] 8. APPEAL AND ERROR (§ 1172*)-DETERMINATION-REVERSAL IN PART.

which erroneously granted partition without evidence of the value of the land.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4555-4561; Dec. Dig. § 1172.*]

9. HUSBAND AND WIFE (§ 249*)-COMMUNITY PROPERTY-WHAT CONSTITUTES.

Property acquired by a husband before his wife secured a divorce is community property, even if at the time of the acquisition she was living apart from him because obliged to do so to make her own living.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. 88 887, 889-892; Dec. Dig. § 249.*]

On Motion for Rehearing.

10. HUSBAND AND WIFE (§ 267*)—COMMUNITY PROPERTY-CONVEYANCE BY HUSBAND.

A conveyance by a husband of the comas to his interest in the property and should not munity property of himself and wife is good be canceled at the suit of the wife except as to her share.

Wife, Cent. Dig. §§ 896, 929-938; Dec. Dig. [Ed. Note.-For other cases, see Husband and § 267.*]

11. JUDGMENT (§ 252*) - CONFORMITY

PLEADING-RELIEF.

ΤΟ

If defendant prays for relief and shows himself entitled thereto by the evidence, the court may grant it notwithstanding the pleadings of the plaintiff do not request it.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 441, 442; Dec. Dig. § 252.*]

Appeal from District Court, Collingsworth County; D. E. Decker, Judge.

Action by Alice Gutheridge against R. W. Gutheridge and others. From a judgment for plaintiff, defendants appeal. Affirmed in part, and in part reversed and remanded. See, also, 159 S. W. 452.

R. H. Templeton, of Wellington, and Crudgington & Works, of Amarillo, for appellants. J. L. Lackey, of Wellington, and Presler & Thorne, of Memphis, for appellee.

HALL, J. Alice Gutheridge, formerly the wife of R. W. Gutheridge, of Green county, Okl., instituted this suit against R. W. Gutheridge (her divorced husband), C. B. Boverie, and J. M. Poff, residents of Texas, for the cancellation of certain deeds and title to the N. E. 4 of section No. 28, block No. 15, H. & G. N. Ry. Co. survey in Collingsworth county, Tex. The allegations of the petition, in substance, are: That plaintiff was formerly the wife of R. W. Gutheridge, and Lawrence Gutheridge, a son, was born of that wedlock. That plaintiff and her said husband were separated in August, 1908. That they owned as community property the N. W. 4 of section 32, block 15, and the N. E. 4 of section 28, block 15, of the H. & G. N. Ry. Co. surveys in Collingsworth county, Tex. That on September 21, 1910, her said husband conveyed the east of the N. E. 4 of said section 28 to their infant son, Lawrence, and at the same time conveyed the W. 1⁄2 of said 4 to Lee Brown. That Lee Brown thereafter conveyed said

Under rule 62a for Courts of Civil Appeals (149 S. W. x), providing that, if it should ap; pear that an error committed by the trial court affects only a part of the controversy and that the issues are severable, the judgment shall be reversed only in part, the appellate court may, in an action by a woman to set aside her former husband's deeds to their community property, reverse only that part of the judgment W. 1⁄2 to C. B. Boverie, and afterwards C. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

prayer is as follows: "Wherefore defendant prays judgment of the court that plaintiff take nothing by this suit except a partition of his land in Gray county, Tex., and that all interest in said land be perfected in the present owners of the same, that the W. 2 be perfected in J. M. Poff and the E. 2 be partitioned between C. B. Boverie and plaintiff, and for all further relief, both special and general, in law and in equity, that he may be entitled to under the law."

B. Boverie conveyed the land to J. M. Poff, | the money theretofore paid by him. His and later her said husband conveyed the entire N. E. 4 of said section 28 to the said Boverie, who in turn again conveyed the same to J. M. Poff. That on the 3d day of January, 1911, appellee obtained a decree of divorce from her husband in the district court of Kingfisher county, Okl., and that said judgment decreed to her the custody of the infant son, Lawrence, and that said son soon thereafter died. It is alleged that the deeds above mentioned were all made for the purpose of defrauding plaintiff, and that the grantees thereunder took with notice of her rights, and prayed that she be decreed to have said quarter section with damages and for an injunction.

Defendants Boverie and Poff, by special answer set up that they were innocent purchasers without notice, and in addition thereto substantially the facts plead by R. W. Gutheridge. The prayer as contained in Each of the defendants answered separate- the answer of Poff is as follows: "Wherely, the substance of R. W. Gutheridge's spe- fore defendant prays that plaintiff take nothcial answer being as follows: That the ing by this suit, and that said W. 1⁄2 of said quarter section was the community S. E. 4 of section 28, block 15, in said Colproperty of himself and wife. That in the lingsworth county, Tex., be decreed to him spring of 1908 they abandoned the land and free from all claims of plaintiff; that he never again resided thereon. That they sep- go hence without day with his costs and for arated in 1908 and never again lived to- damages and for rent of said land for the gether as husband and wife, at which sep- year 1912, and for such other and further aration appellee abandoned him and moved relief, special and general in law and in to the state of Oklahoma, and has so re-equity, as he may be entitled to." The praysided in said state continuously, and now er of C. B. Boverie is as follows: "Whereso resides in said state. That in January, 1911, she obtained a decree of divorce. That during the time plaintiff and defendant lived together they contracted community debts, which he was unable to pay, and he sold the W. 1⁄2 of the N. E. 4 of said section 28 to pay said indebtedness. That he had no other property out of which said debts could be paid. That in 1909 he removed to Gray county, Tex., and acquired a new homestead, which he had occupied since said date and which he was occupying prior to and at the time he sold said N. E. 4 of section 28 to defendant Brown, and prior to said sale had made and filed a written designation of his homestead, stating the same to be in Pampa, Gray county, Tex. That he sold the W. 2 of the N. E. 14 while his wife was separated from him and residing in another state, with which to pay community debts, and conveyed the E. 1⁄2 of said quarter to his son, Lawrence, who had since died, and that he and plaintiff were the only heirs of the said Lawrence. Since the death of his said son, he had again conveyed the entire N. E. 4 to the said Boverie, and so had parted with every interest of every kind and character in said quarter and disclaimed any interest in the land in controversy. That his said home in Pampa was acquired during the marriage and was subject to partition. That the N. E. 4 of section 32, referred to by appellee, was purchased and vendor's lien notes given therefor, and that by reason of his wife abandoning him he was unable to pay therefor, and foreclosure was had in the district court of Collingsworth county, under which he lost said land and

fore defendant prays judgment of the court that plaintiff take nothing by this suit as to the W. 2 of the N. E. 4 of section 28, block 15, and that he have his costs in this behalf expended; that the E. 1⁄2 of the N. E. 4 of section 28, block 15, in said Collingsworth county, Tex., be partitioned between plaintiff and this defendant; that appraisers be appointed by the court to appraise and divide the said E. 1⁄2 equally, according to value, between this defendant and plaintiff; and that each be placed in possession of his part within 30 days from date of partition; and that, if the court should hold that deeds from R. W. Gutheridge to Lee Brown and Lawrence Gutheridge were invalid for any cause, the court have the entire N. E. 4 of section 28, block 15, partitioned according to the respective interests of claimants to same; and that the same be duly and legally partitioned; and that all equities involved in the suit and premises be adjusted in this suit; and for all other and further orders and relief, both special and general, in law and in equity, as each may be entitled to, and in duty bound this defendant will ever pray."

The court's findings of fact and conclusions of law are in substance as follows:

First. That the land in controversy is the community property of plaintiff and her former husband and is their homestead. That it has never been abandoned as a homestead, but that plaintiff was forced to leave the same temporarily in order to secure work for the support of herself and infant son, and that she left with the intention of returning at any time appellant Gutheridge

would provide her with a living, and so notified him when she went away.

essary for a party to be an actual bona fide resident, inhabitant of Oklahoma in order to institute divorce proceedings in that state, but only necessary that they reside in the

Second. That appellee did not leave appellant Gutheridge with the intention of separation, but only for the purpose of se-state for 12 months. curing work, and never knew that he regarded her leaving as a separation until she was notified by his attorney that he was going to sue her for a divorce.

Third. That he did file suit in the district court of Collingsworth county, for a divorce and division of property, and when the court convened dismissed the same at his own cost.

Fourth. That plaintiff had never abandoned the land as her homestead, and the personal effects which she had were there on the land when she left and were thereafter carried away by her mother, who lived near, for the purpose of taking care of the same during her absence.

Fifth. That defendant R. W. Gutheridge utterly failed to support his family in any way or manner for several months before his wife went away to her work. That she was compelled to work and pay all the family expenses for several months prior to that time.

Sixth. That none of the deeds made by R. W. Gutheridge to any of the defendants, and none of the deeds made by said defendants to each other, purporting to convey or attempting to convey the land, were made in good faith for valuable consideration, but that all of said deeds were made with full knowledge by said parties of appellee's claim and right in the premises and that appellee had possession of said land and was paying taxes and interest thereon during that time. Seventh. That at the time of plaintiff and defendant R. W. Gutheridge's separation, they owned and possessed other property which was community property, and which he disposed of and gave none of the proceeds to plaintiff or their son, and he also owned and held other property in Gray county, Tex.

Based upon said findings of fact, the court concluded as a matter of law that plaintiff ought to recover the land in controversy as her part of the community estate of herself and R. W. Gutheridge, and that all deeds made by Gutheridge or the other defendants herein, attempting to convey said land, ought to be canceled and held for naught, and plaintiff quieted in her title thereby. The judgment of the trial court is rendered in accordance with the findings and conclusions outlined above.

[1] The appellant's brief submits the case under a multitude of assignments and propositions, the majority of which go to the sufficiency of the evidence to sustain the court's findings of fact and conclusions of law. We have read the statement of facts and think that the evidence is sufficient to sustain all of the court's findings, except perhaps the latter part of the eighth, in which the court finds that the property in Gray county, held by R. W. Gutheridge, exceeded in value what would be his part of the land in controversy. It is not necessary for us to set out the facts in detail, or even in substance; but the following excerpts from the testimony of the plaintiff will serve to show that the court's findings, with the exception above noted, are amply sustained: “I did not know that myself and husband had separated until his attorney wrote me, asking me if I would file a suit for divorce, over there at Enid. I had left our home (the land in question), temporarily prior to that time and had gone to Chillicothe, Tex., where my husband and I lived for about six months. We did not acquire any home there. He was in the insurance business. I came back up to our home in the fall. I think that was in 1907. He came back in the summer. When he returned here in the fall, he went Eighth. That the community property dis- out to my mother's place close to where we posed of by said appellant Gutheridge, and lived in Collingsworth county, just a fence the other community property held by him between us. At the time he left me in in Gray county, Tex., exceeded in value what Chillicothe, he made no provisions for me to would be his part in the land in controversy. live-no money for any groceries. We had That appellee has had to care for and pay been living in a rented house there. He did all the expenses incident to raising their not pay the house rent nor any of the grocery said infant son since and before their separa- bills. I paid it. I did some sewing down tion, and that said child died some time in there. Went from there to Vernon and pickthe year 1912, and that appellee was forced ed cotton for two months. When I left to pay the doctor's bills and all funeral there, I shipped my household goods to expenses incident to the sickness and death Memphis and paid the freight on them and of said child, amounting to something over went back up to my mother's place in this $200. That plaintiff sued defendant Guthe-county. When I arrived there, my husband ridge for divorce in the state of Oklahoma had gone. My father got my things from and was decreed a divorce, together with the care and custody of their said child, and that such decree was entered after the said R. W. Gutheridge had conveyed all the lands in this controversy, and that it was not nec

Memphis for me. I remained at my mother's about six months-perhaps not so long-and went away again. I returned there in the fall and left there the 1st of February, at which time my husband was there. He