tee was no stranger to, but in privity of estate with, Grissom & Suggs, with all the rights they had. Besides, there could be no disposition of this cause on a mere motion, but only on appropriate pleadings. Reversed and remanded.

PACKWOOD v. WM. ATKINSON & FOXWORTH CO.

(Supreme Court of Mississippi. Feb. 10, 1902.) CHATTEL MORTGAGES-INCREASE OF LIVE STOCK-REPLEVIN-EVIDENCE-IN

NOCENT PURCHASER.

A chattel mortgage on live stock and increase being valid, it is error, in replevin by the mortgagee to recover from the purchaser of the mortgagor a grown horse claimed to be covered by the mortgage, as a colt of a mare included therein, to reject evidence showing that the purchaser had knowledge that the horse was included in the mortgage.

Appeal from circuit court, Marion county; J. R. Enochs, Judge.

Replevin by S. E. Packwood against the Wm. Atkinson & Foxworth Company to recover mortgaged property. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Action of replevin by appellant against appellees to recover one horse. On the trial in the circuit court, plaintiff (appellant) offered in evidence a deed of trust given by one Welda to plaintiff on one bay mare and other property, and "any increase of property, real or personal, that may be hereafter acquired by purchase or otherwise." This deed of trust was duly acknowledged and recorded. Plaintiff offered said deed of trust as a link in his chain of title to the horse, and then offered to show that plaintiff acquired title to the horse by virtue of the provisions of the deed of trust, and by virtue of said horse being a colt of the mare acknowledged to be included in the deed of trust, and that the colt was born during the time the deed of trust was in force, and that the deed of trust was foreclosed according to its terms at a public sale, and that plaintiff purchased him at that sale, and the debt secured by the deed of trust was credited with the price. Plaintiff then offered to show that the defendants had actual knowledge of plaintiff's lien on the horse. Defendants objected to the introduction of the deed of trust: (1) Because it is void as to defendants, who are third parties; (2) because plaintiff has no right to property that is not embraced in the deed of trust. The court sustained defendants' objections to all this testimony, and plaintiff excepted. There was judgment for defendants, from which the plaintiff appealed.

Mounger & Mounger, for appellant. Weathersby & Maynard, for appellees.

trust deed, which contained a clause expressly covering increase of personalty, proof that appellees had actual notice that this horse was subject to the lien of this trust deed. Under all the authorities, if appellees had such actual notice, the appellant should have prevailed. The trust deed, and the proof offered with it, should have been received. The court below manifestly held the clauses as to "increase of personalty and realty" and "after-acquired property" void, under its view of Williams v. Crook, 63 Miss. 9. But that was a wholly different case. That was the case of an alleged title to a mule that had been attempted to be substituted for a horse covered by a trust deed. The case which controls here is Mississippi Val. Co. v. Chicago, St. L. & N. O. R. Co., 58 Miss., at page 904, where it is distinctly held that a mortgage of animals, with their increase, as of "a flock of sheep and its natural increase and future-grown wool," is valid at law. The court there said: "A distinction is made by some of the authorities between mortgages of future acquisitions executed by railroad companies, and similar instruments made by natural persons. It is said that a mortgage of a railroad and its future property will carry all after-acquired property appurtenant to, and necessary for building and operating, the road, and carrying out the purposes for which it was created, while a similar instrument will be inoperative if executed by a private person. This is true if the mortgage executed by the private person is upon a specified piece of property, without reference to any accretions or additions to it, because there can be no accretions of property appurtenant to the person of the mortgagor; but it is untrue if the individual has mortgaged his business, and the property then appurtenant to, or afterwards to grow out of, and to be added by accretion to, the particular business that is pledged. Thus, a natural person, equally with a corporation, can execute a valid mortgage of a ship and the profits of its voyage, or of a factory and the machinery then in it and to be placed in it, or of a farm and the products to be produced upon it, or of a flock of sheep and its natural increase and future-grown wool; and so a railroad company can execute, in general terms, a valid mortgage of its roadbed and franchises, and all of its real and personal property then owned or thereafter acquired, provided the future acquisitions be such as belong naturally to the business of constructing and maintaining the road, and performing its primary end as a common carrier of passengers and freights. The things which may be deemed essential or useful, and therefore appurtenant, to the great work of building and operating a railroad, will frequently be more extensive and varied in their character than those which can properly be regarded as accretions to the

prosecution, instituted in vindication of public justice, and a private prosecution, conducted from private motives and from personal feelings,-a purpose worthily enthroned in the organic law; and these provisions should be strictly observed both in their letter and in their spirit. The form of the charge here made was so defective that it would not have supported a conviction, if had, and a verdict was properly given for appellee on this ground, also.

Affirmed.

KLYCE v. STATE.

(Supreme Court of Mississippi. Feb. 10, 1902.) CRIMINAL LAW-JUROR-COMPETENCY-OPINION OF VENIREMAN-APPEAL.

1. Code, 2355, providing that any person otherwise competent who will make oath that he is impartial shall be competent as a juror iu a criminal case, though he has an impression or opinion as to the guilt of the accused, if he has no bias or prejudice, and no desire to reach any result except that to which the evidence may conduct, but that any juror may be excluded if the court believes he cannot try the case impartially, and that such exclusion shall not be assigned as error, does not render a venireman competent as a juror who testifies on his voir dire that he has heard witnesses for the state talk about the case, and believes what they told him, and that he has formed and expressed an opinion, which he still retains, though what he has heard will not prevent him from rendering a fair and impartial verdict.

2. The venireman is incompetent as a juror under Const. § 26, guarantying a trial by an impartial jury of the county where the offense is committed.

3. A defendant in a criminal case who exhausts his peremptory challenges is in a position to complain of error in overruling a challenge for cause interposed by him.

Appeal from circuit court, Alcorn county; E. O. Sykes, Judge.

Bowen Klyce was convicted of manslaughter, and he appeals. Reversed.

Defendant assigns as error the action of the court below in overruling the challenge of the juror Raper for cause by defendant. The examination of Mr. Raper, as shown by the record, is as follows: “Q. by Mr. Lamb, attorney for defense: Mr. Raper, where do you live? A. I live at Jacinto. Q. Where were you living when this killing took place? A. At Kendrick. Q. How far did you live at that time from Jeff McAfee? A. I suppose, about four or four and a half miles. Q. Have you ever heard anybody talk about this case? A. Yes, sir. Q. Have you heard any of the witnesses talk about this case? A. Yes, sir. Q. Have you heard the witnesses testify, or tell what they would testify to, about how this killing took place? Α. Ι heard some of them talking about it. Q. Telling about what the facts were about the killing? A. Not in court, but outside. Q. Who did you hear talking about it? A. I heard Mr. John Lamb, for one. Q. Who else? A. I don't know whether I can tell any other witness' name. Q. Did you hear

Eli and Sydney Whitehurst talking about it? A. I don't think I ever did. Q. From what you heard, did you form and express an opinion? A. I have formed and expressed an opinion, I suppose. Q. Is John Lamb one of the witnesses for the state? A. Yes, sir. (Here the counsel for the state submitted that the juror was incompetent.) Q. by the Court: You say you know you have formed one. But I don't know whether you have expressed it or not. A. Yes, sir; I think I have expressed it. Q. Notwithstanding you have and expressed an opinion, could you go into the jury box and give the defendant a fair and impartial trial. A. Yes, sir. Q. Notwithstanding the fact you have formed and expressed an opinion, would that opinion readily yield to the testimony in the case? A. Yes, sir. Q. Have you any bias or prejudice against the defendant? A. No, sir. Q. Or against the state? A. No, sir. Q. Or for the state? A. No, sir. Q. Do you know any reason, after hearing the testimony and the law as given by the court, that would prevent you from rendering a fair and impartial verdict? A. No, sir, nothing at all, except what I stated,-that I have heard rumor, and some of the state witnesses talk about the case. Q. Would that prevent you from rendering a fair and impartial verdict after hearing the testimony and the law? A. No, sir; it would not. Q. By Mr. Lamb: When John Lamb was talking to you about the facts in this case, did you believe what he said? A. Yes, sir; I believed that that was what he testified to about it in the court. Q. And what he would testify? A. Yes, sir. Q. From what he told you, is that from what you formed an opinion? A. Well, not within itself. I heard others speak about it. From that and from what I have heard others say about it. Q. Is that opinion a fixed opinion, that would require testimony to remove that opinion? A. Well, that was my opinion about it. Of course, I had formed an opinion; but, as I said, law and testimony would have effect on my deciding the case. Q. That opinion you formed from what John Lamb told you and from others,-would it take testimony to remove that opinion? A. Well, I don't know, hardly, how to answer that question. Q. Would it require testimony to make you change that opinion? A. I have that opinion. Q. Would it take testimony to change that opinion? A. I suppose so. I just formed the opinion from what I heard of it, and I suppose that was the way. I believed it, from what I heard of it, and I suppose it would. My opinion is not a fixed opinion, so far as giving in a verdict. Q. You say it would take testimony to change the opinion you formed from what you heard John Lamb and others state? A. I suppose it would." The defense here challenged Mr. Raper for cause. The court held he was competent, to which defendant excepted.

meaning of the constitution, whatever may be his own idea of his own power to try impartially. We hold this, and nothing more, and think it will not require much psychological investigation to sustain this conclusion. Appellant exhausted his peremptory challenges, and is in position to complain.

Reversed and remanded.

TERRAL, J., does not concur.

DUNBAR et al. v. ALDRICH et al. (Supreme Court of Mississippi. Feb. 10, 1902.) DEEDS-RECITALS-GRANTING CLAUSE-CONSTRUCTION-LIMITATION OF ACTIONS.

1. Where a deed recites that it is the purpose of the grantor to give a life estate to the grantee, with remainder in fee to his children, but in the granting part of the deed a conveyauce is made to the grantee and his heirs in fee simple, the granting part controls, and the grantee takes an estate in fee simple.

2. Where, in 1860, land was in the possession of one claiming title thereto, as against all persons, and in 1868, a mortgage made by such person was foreclosed, and the land subsequently possessed by the mortgagee and his devisees, a claim to the land by one whose rights were acquired prior to 1860, but who did not sue until 1897, was barred by the 10-years statute of limitation.

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

Suit by Beatrice Dunbar and others against L. G. Aldrich and others. From a decree in favor of defendants, plaintiffs appeal. Affirmed.

Wade R. Young, for appellants. Reed & Brandon, for appellees.

TERRAL, J. The original bill in this case sought to have set off to complainants a one-seventh part of Rustic Lawn plantation, in Jefferson county, to which they claimed a legal title. The original bill was filed the 2d day of July, 1897, and it was amended September 28, 1897, by introducing additional matter and other parties to the suit, and it was finally dismissed; but before its dismissal, and on the day thereof, further leave to amend the bill by making new parties was requested of the court, and by it denied. Neither by the original bill nor by it as amended were all necessary parties brought before the court as to the relief finally claimed, but at the time of the dismissal of the case the names of all the parties necessary to adjudicate the entire title to the property, in any view of the facts, were named in the bill, and might have been readily brought before the court by the amendment proposed. From the record it appears that the Rustic Lawn plantation was, in 1844, the property of John W. Dunbar, who in that year made his last will and testament, by which he devised said plantation to his brother William H. Dunbar for his life, and after his death to his children. But because said will was attested by two

witnesses only it was inoperative to pass real estate, whereupon the brothers and sisters of William H. Dunbar, except Mrs. Martha D. Claiborne, to whom said land descended, out of respect to the wishes of their deceased brother as expressed in his last will and testament, executed their several deeds of conveyance of said Rustic Lawn plantation to said William H. Dunbar, and each of them in the recital part of the conveyance declared his purpose to give validity or effect to the will of John W. Dunbar by conveying said plantation to said William H. Dunbar for life, with remainder in fee to his children; but in the granting or operative part of each and all of said deeds a conveyance of said plantation was made to William H. Dunbar and his heirs in fee simple. The contention of appellants that by construction of law William H. Dunbar took only a life estate cannot be maintained. It is true, as is said by appellants, that a deed is to be construed ex antecedentibus,et consequentibus; but it is also a settled rule of construction that the meaning or intention of the grantor is not the object sought, but what is the meaning of the words used by him in making the grant. And especially is it a rule of interpretation of a deed that an intention manifested in the recitals of a conveyance will be controlled by the terms of the granting part of the deed. In Monypenny v. Monypenny, 9 H. L. Cas. 146, Lord Wensleydale said: "The question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed,-a most important distinction in all classes of construction, and the disregard of which often leads to erroneous conclusions." In Bailey v. Lloyd, 5 Russ. 344, Sir John Leach, M. R., said: "If the operative part of a deed be doubtfully expressed, there the recital may safely be referred to as a key to the intention of the parties; but, where the operative part of the deed uses language which admits of no doubt, it cannot be controlled by the recital." Romilly, M. R., in Young v. Smith, 35 Beav. 90, said: "It is of the greatest consequence to keep distinct the different parts of deeds, and to give to recitals and to the operative part their proper effects. I have always held that, where the recitals and operative part of a deed are at variance, the operative part must be officious, and the recitals inofficious. I do not say inoperative, for the recitals may be useful in explaining ambiguities." In Walsh v. Trevanion, Patteson, J., said: "When the words in the operative part of a deed of conveyance are clear and unambiguous, they cannot be controlled by the recitals or other parts of the deed." 69 E. C. L. 750. From a consideration of these authorities-and we know of none contradicting them-it must be clear that the several deeds of the brothers and sisters or of their descendants conveyed to William H.