ful child of decedent, will recognize her statutory rights as a pretermitted heir. Section 4611, Rev. St. 1899 (Ann. St. 1906, p. 2505). JOHNSON, J. This is an action in equity, | and, treating her as though she were a lawthe object of which is to obtain a decree that plaintiff is a pretermitted heir of Basley W. Malone who died testate in Howard county, and is entitled to share in his estate. Defendant demurred to the petition on the ground that the facts alleged therein fail to constitute a cause of action. The demurrer was sustained, and plaintiff, refusing to plead further, brought the cause here by appeal. Briefly stated, the facts alleged in the petition are as follows: Plaintiff, the daughter of Alex and Caroline Malone and niece of Basley W. Malone, was born in 1859. Her parents had a large family and were poor. Her uncle, who had been married five or six years, had no children and was in good pecuniary circumstances. Plaintiff's mother survived her birth only two weeks, and in contemplation of death besought Basley and his wife to adopt her newborn child. They consented on condition that Alex, the father, would renounce all claims to his child. Alex made the required promise, and Basley and his wife agreed with the dying woman to adopt plaintiff. The statutory requirements necessary to a legal adoption were not performed, but immediately following the death of plaintiff's mother Basley and his wife took plaintiff to their home, and thereafter cared for and treated her as their child. They reared her in the belief that she was their child, and it was not until she reached the age of 12 years that she learned from others the true facts about her parentage. Basley and his wife then assured her that she was their adopted child, and that they would always consider and treat her as their own daughter. They told her-and she believed the statement-that they had legally adopted her. The father of plaintiff observed his promise not to assert any parental rights over her, and she lived with her foster parents until she was 25 years of age, rendering to them the filial love and duty a daughter owes her natural parents. Then she married, and thereafter lived with her husband. Plaintiff's foster mother died childless in 1890 leaving her estate to her husband. He remarried, and his second wife died childless in 1900. Afterward he married the defendant, and some years later died without issue. He left a will in which he gave all of his property to defendant, his widow, and failed to mention plaintiff. Though the petition alleges that Basley Malone and his wife agreed that they would legally adopt plaintiff, it does not specifically state they agreed to make plaintiff their heir. Doubtless the absence of such promise was what prompted the trial court to sustain the demurrer to the petition. Plaintiff argues that since she fully performed the contract made for her benefit by her dying mother, equity will enforce that contract though it falls short of meeting the statutory require The courts of this state, under certain circumstances, have enforced oral contracts of adoption, and may be considered as settled that equity will decree an adoption and its resultant rights in cases where no statutory adoption exists when to do otherwise would result in palpable injustice. Adoption was unknown to the common law, and statutes in derogation of the common law are to be strictly construed. But the rule of strict construction is not extended to the act of adoption itself. Hockaday v. Lynn, 200 Mo. 464, 98 S. W. 585, 8 L. R. A. (N. S.) 117, 118 Am. St. Rep. 672. And "since the statute has made the adoption of a child lawful, the law, for the same reasons that it sometimes enforces oral contracts affecting real estate, will not allow the mere failure of one party to do his duty to work an irreparable wrong to one who has fully performed his part. This court, for that reason, has not only held an oral contract for adoption valid, but has also required fulfillment of a collateral agreement of the adopting parent to leave the adopted child his estate at his death." Lynn v. Hockaday, 162 Mo., loc. cit. 125, 61 S. W. 888, 85 Am. St. Rep. 480; Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270. The contract for the benefit of plaintiff made by her mother was valid in equity, and when plaintiff performed it and her foster parents received the benefit of her performance she became, in equity, their adopted child. Equity will treat as done that which ought to have been done, and as Basley in his lifetime would not be heard to repudiate the obligation of a contract of which he had received the full benefit, neither will his executor be allowed to stand on ground so inequitable. Defendant argues: "An agreement for the adoption of a child and to leave property to it when fully performed by the child may be enforced in equity. This is not on the ground that the child has been legally adopted, but because a contract to leave property to the child, when fully performed on its part, may be enforced in equity." Citing 1 Encyc. of Law (2d Ed.) 728, which refers to Healey v. Simpson, 113 Mo. 340, 20 S. W. 881. In that case the contract, by which it was proposed to adopt the child, provided "that they (the adopting parents) will govern, educate, maintain, and in all respects treat said child as though she were their own natural offspring; and it is further agreed that said Evangeline Brewster shall have and inherit from the estate of said parties of the second part in the same manner and to the same extent that a child born of their union would inherit." In effect, this meant that in adopting the child they would give it the status of less. A statutory deed of adoption would have conferred on the child these precise rights and nothing more. Chapter 90, Rev. St. 1899 (Ann. St. 1906, pp. 2728-2730). Without any specific agreement to that effect, a child legally adopted will inherit from its adoptive parents in like manner as their lawful issue. Moran v. Stewart, 122 Mo. 295, 26 S. W. 962; Moran v. Stewart, 132 Mo. 73, 33 S. W. 443. This being true, a contract to adopt carries the incidental right of heirship which, as in the case of a natural child, may be cut off only by the will of the adoptive parent in which the adopted child is mentioned. ing_within Rev. St. 1899, § 746 (Ann. St. 1906, P. 731), providing that, when any pleading is founded on any instrument in writing, its execution shall be adjudged confessed, unless denied by a verified pleading, and section 643 (Ann. St. 1906, p. 662), declaring that, when a pleading is founded on any written instrument, it shall be filed with the pleading, and hence, such instrument having been properly pleaded in the answer and plaintiff not having denied its execution under oath, he was not entitled to prove that it was a forgery. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 861-879; Dec. Dig. § 291.* For other definitions, see Words and Phrases, vol. 8, pp. 7544-7547.] 3. PLEADING (§ 291*)-WRITTEN INSTRUMENTS -STATUTES. It follows from what we have said that the controlling consideration in Healey v. Simpson, supra, was not, as we have shown, the incidental promise that the adopted child would inherit as though she had been born of her adoptive parents, but was the agreement to adopt the child, and the sub-4. sequent performance by the child of her part of the agreement. In the later case of Lynn v. Hockaday, 162 Mo. 111, 61 S. W. 885, 85 Am. St. Rep. 480, the oral contract to adopt did not mention the rights of the child as an heir, and still that contract was enforced. So the contract in the present case should be enforced. The blessings which only a child can bring to a home were bestowed on a childless couple by plaintiff's performance of the contract made by her mother for her benefit. Plaintiff is entitled to her reward, and since she was forgotten in her adoptive father's will, she must be accorded the rights given by law to a pretermitted heir. The demurrer to the petition should have been overruled. On proof of the facts alleged in her petition, plaintiff should have a decree declaring her status as an heir. The judgment is reversed and the cause Cent. Dig. §§ 802-816; Dec. Dig. § 259.*] 6. RAILROADS (§ 259*)-LEASES-LIABILITY OF LESSOR. LESSOR. The general rule that an incorporated railroad company may not lease its property and franchises to another, and escape liability resulting from the operation of its road, does not obtain when legislative authority is obtained for the railroad lease without reserving the liability of the lessor. [Ed. Note. For other cases, see Railroads, remanded. All concur. Rev. St. 1899, § 746 (Ann. St. 1906, p. 731), providing that a written instrument plead- APPEAL AND ERROR (§ 1050*)—HARMLESS Where, notwithstanding plaintiff failed to deny in his answer the execution of a release properly pleaded, and therefore admitted its execution, as provided by Rev. St. 1899, § 746 (Ann. St. 1906, p. 731), the court erroneously admitted evidence showing that the words of release were written on defendant's pay roll after plaintiff had signed it, and that the release was in fact a forgery, a judgment for plaintiff will be reversed, and the cause remanded in the interests of justice. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 1050.*] 5. RAILROADS (§ 259*)-LEASES-LIABILITY OF It is only where a domestic railroad company leases its road to foreign corporation that Rev. St. 1899, § 1060 (Ann. St. 1906, p. 915), continues a liability against the lessor for the negligence of the lessee in the operation of the HAHS v. CAPE GIRARDEAU & C. R. CO. 1. EVIDENCE (§ 408*)-PAROL EVIDENCE-RE- Where the words "in full release of all damages sustained March 31, 1906," were written on a pay roll above plaintiff's signature, and plaintiff, in consideration thereof, was paid a sum of money, such writing was not only a receipt, but also a release of plaintiff's right of action; and, in the absence of pleadings properly repudiating its execution, could not be contradicted by parol. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1829-1842; Dec. Dig. § 408.*] 2. PLEADING (§ 291*) - VERIFICATION "INSTRUMENT IN WRITING"- EXECUTION-DENIAL. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 802-816; Dec. Dig. § 259.*] 7. RAILROADS (§ 259*)-"LEASE"-NATURE OF LEASE. The word "lease," as used in Rev. St. 1899, § 1060 (Ann. St. 1906, p. 915), authorizing railroad leases, contemplates such an instrument as divests the lessor of possession and control and places the same in the lessee to the exclusion of the lessor, possessing all the qualities and incidents of a lease at common law between landlord and tenant. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 802-816; Dec. Dig. § 259.* For other definitions, see Words and Phrases, vol. 5, pp. 4043-4049; vol. 8, p. 7702, 7703.] 8. LANDLORD AND TENANT (§ 150*)-REPAIRS -LANDLORD'S LIABILITY. Where plaintiff signed a pay roll, and over his signature appeared the words "in full re- At common law, in the absence of a covelease of all damages sustained March 31, 1906," nant in a lease, the landlord, having delivered such writing constituted an instrument in writ-the demised property in a sound state of repair, was neither liable to make repairs during the term nor entitled to enter the premises for that purpose. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 536-557; Dec. Dig. 150.*] 9. RAILROADS (§ 259*)-LEASES-DISREPAIR-ing transported homeward by his employLANDLORD'S LIABILITY. er, the defendant Chester, Perryville & Ste. Genevieve Railway Company, over a portion of the tracks owned by the other defendant, the lessor company. The men were all in an empty box car being propelled backwards by a locomotive engine owned by his employer, the lessee company. Upon approaching a trestle over a ravine on the road of the Cape Girardeau & Chester Railroad Company, the lessor, the box car was derailAppeal from Circuit Court, Cape Girar-ed because of a defect in the lessor's tracks deau County; Henry C. Riley, Judge. The rule that a landlord, in the absence of a covenant to do so, is under no obligation to make repairs, is applicable to leases of railroads; so that the lessor, in the absence of a covenant to repair, is not liable for injuries sustained by employés of the lessee company by the latter's negligence in failing to keep the track in proper repair. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 802-816; Dec. Dig. § 259.*] Action by Theodore J. Hahs against the Cape Girardeau & Chester Railroad Company and another. Judgment for plaintiff, and defendants appeal. Reversed as to the Cape Girardeau & Chester Railroad Company and such company discharged, and reversed and remanded as to the Chester, Perryville & Ste. Genevieve Railway Com pany. Giboney Houck, R. G. Ranney, and Benson C. Hardesty, for appellants. Edw. D. Hays, for respondent. had been engaged during the day in work extra of their regular employment at a point on the railroad several miles distant from the section on which he was employed, and, having finished the day's labor, was be NORTONI, J. This is a suit for damages accrued to the plaintiff through the alleged negligence of the defendants. Plaintiff recovered, and both defendants appeal. | adjacent to the trestle. As a result of the derailment, plaintiff was precipitated against the side of the car, which resulted in dislocating his shoulder and inflicting some other slight bruises. The particular negligence relied upon for a recovery relates to the defective track mentioned. The proof shows that the roadbed had settled considerably at the point where the railroad dump abuts the north end of the trestle, and that within a space of about 5 feet the incline from the railroad dump to the end of the trestle was about 14 inches. Besides, on one side of the track at this point there was a joint in the rails, which appears to have been sunken more than the rail on the opposite side. The box car, moving at the rate of about eight miles an hour, upon reaching the point mentioned, was derailed because of the low joint and the sharp and extensive incline in the track adjacent to the trestle. There is no complaint whatever as to a defective car or as to the mode or manner which the car or locomotive was being operated. The charge of negligence relates solely to the defect in the track of the lessor, and it appears that the track had thus become defective while in the possession and under the control of the lessee. While the lease itself is not before us, there is nothing in the record indicating that the lessor company covenanted to maintain or repair the tracks or roadway. All that appears as to this matter is to the effect that the lessee had been operating the road for a considerable period of time under the lease, and that it had from time to time been making repairs on the leased road as though the obligation to do so rested upon it and not upon the lessor. The defendants are domestic corporations; that is to say, they are each railroad companies incorporated and existing under the laws of this state. They own connecting lines of railroads in southeast Missouri. The defendant Cape Girardeau & Chester Railroad Company owned the railroad on which the plaintiff received his injury. It was being operated, however, at the time by the other defendant, the Chester, Perryville & Ste. Genevieve Railway Company, in whose employ the plaintiff was engaged as a laborer on its section. It is conceded throughout the case that the Chester, Perryville & Ste. Genevieve Railway Company, lessee, was operating over the tracks of the Cape Girardeau & Chester Railroad Company, lessor, under a competent lease authorized by the statutes of the state, which in no manner reserved a liability against the lessor company for the torts of the lessee. While the plaintiff was in the employ of The defendants answered separately. the defendant Chester, Perryville & Ste. Among other things, the Chester, Perryville Genevieve Railway Company, the lessee, as & Ste. Genevieve Railway Company-that is, a section hand, he was injured through the the lessee, or operating company-admitted derailment of a box car in which he and oth- the plaintiff's injury, and pleaded an accord er sectionmen were being transported by and satisfaction of the cause of action stated that company over the tracks of the other in the petition. In other words, it pleaded defendant, the Cape Girardeau & Chester a full acquittance and release executed by Railroad Company, lessor. The plaintiff and the plaintiff in writing on the 19th day of his companions in charge of their foreman | May, 1906, wherein it is recited plaintiff ac cepted $12.50 from defendant, and, in con- of all damages sustained March 31, 1906," sideration thereof, executed a release on its were written opposite his signature at some pay roll of the cause of action sued on as time after he signed the receipt. Several follows: "In full release of all damages sus- other witnesses who were present when the tained March 31, 1906,"-and signed and pay roll was signed by the plaintiff and delivered the same to the defendant by affix- who signed a receipt on the same page for ing his signature to line 16 of its pay roll their wages said that they did not observe opposite the words quoted. This defendant the words, "In full release of all damages also filed the original page of its pay roll re- sustained March 31, 1906," opposite plainlied upon, containing the release of the plain- tiff's name at the time. Some of these wittiff's cause of action mentioned, which page nesses affixed their signatures to the pay and line 16 thereof evinced in writing that roll immediately before and some immediateplaintiff had received on the date mentioned ly after the plaintiff. This testimony was $12.50 "in full release of all damages sus-all received over defendants' exception. It tained March 31, 1906. [Signed] Theodore appears, too, the words, "In full release of Hahs." The defendant Cape Girardeau & all damages sustained March 31, 1906," were Chester Railroad Company, the lessor, an- written on the pay roll in small legible letswered by a general denial, specially de- ters in red ink, and the fact that red ink nied that plaintiff was in its service at the was used is a circumstance likely to attract time he was injured, and pleaded, further, attention. One witness besides the plaintiff that it had long prior to that date leased says positively that he looked over the pay its railroad to the other defendant, the Ches- roll at the time it was signed, and knows ter, Perryville & Ste. Genevieve Railway the words of release in red ink were not then Company, who was in full possession of and present. operating the same at the time plaintiff received his injury. To each of these answers the plaintiff filed a general denial only without verification. The case coming on for trial, defendants objected to the introduction of any testimony by plaintiff for the reason the answer of the Chester, Perryville & Ste. Genevieve Railway Company pleaded a full release and acquittance of the cause of action, executed by plaintiff to it in consideration of $12.50 which stood confessed in the case for the reason plaintiff had failed to plead non est factum thereto by denying the same under oath, as is required by our statutes. Section 746, Rev. St. 1899 (section 746, Ann. St. 1906). The court overruled the objection, and expressed the opinion that the release pleaded in and filed with the answer was not such an instrument in writing as is contemplated by that statute, to which ruling the defendants excepted. The same objection and the same ruling were repeated upon several occasions throughout the trial. Notwithstanding the fact that the execution of the release pleaded in the answer was not denied under oath by the plaintiff, the court permitted evidence to be adduced tending to prove the release mentioned to be a forgery. Plaintiff himself testified that the defendant paid him $12.50, as recited in the pay roll, and that he had performed no labor at the time for which he had not been paid. Over defendants' exception plaintiff said the defendant carried his name on the pay roll as a cripple, and paid him the $12.50 as a donation during the time he was disabled; that he signed the pay roll on the date mentioned, and received a check for the amount referred to as a gift. He insists, however, that at the time of signing the pay roll the words of release therein appearing at the time of the trial were not then It is argued by the plaintiff that the instiument relied upon as a release amounts only to a receipt, and that as the penalty imposed by section 746, Rev. St. 1899, for not denying its execution under oath is a confession of the instrument, he is not precluded thereby from contradicting the same by parol. The court proceeded on this theory and instructed the jury that, although a receipt may, of itself indicate a settlement, yet it is not conclusive evidence of such settlement, but may be explained or rebutted by verbal testimony. The theory of the instruction is unsound in its application to the instrument in evidence, for it contains a contract as well as a receipt. It is very true that a mere receipt is not conclusive against an attack by parol. The law affords no special sanctity to a receipt as such. A receipt is merely the evidence of a fact, and is therefore open to parol explanation and modification. Aull V. St. Louis Trust Co., 149 Mo. 1, 17, 50 S. W. 289; Dawson v. Wombles, 111 Mo. App. 532, 86 S. W. 271; 23 Am. & Eng. Ency. Law (2d Ed.) 978, 979; 24 Am. & Eng. Ency. Law (2d Ed.) 283. However this may be, the law affords immunity from parol attack to contractual obligations reduced to writing by the parties when supported by a sufficient consideration. And, although a writing may be in part a receipt and as such disputable to that extent, if it contains a contract as well, so much of it as imports the contractual obligation may not be contradicted or overthrown by parol testimony. Carpenter v. Jamison, 6 Mo. App. 216; Carpenter v. Jamison, 75 Mo. 285; Randall v. Reynolds, 52 N. Y. Super. Ct. 145; 24 Am. & Eng. Ency. Law (2d Ed.) 283; 23 Am. & Eng. Ency. Law (2d Ed.) 978; Davison v. Davis, 125 U. S. 90, 8 Sup. Ct. 825, 31 L. Ed. 635; Slattery v. Bates, 8 Mo. App. 595. The writing relied upon as a release and tiff, as it was, by the failure to deny its ex-ing shall be founded upon any instrument in ecution under oath in the reply, certainly writing, charged to have been executed by the amounts to more than a mere receipt for the other party and not alleged therein to be lost $12.50, which the plaintiff conceded he re- or destroyed, the execution of such instrument ceived, and for which he says he performed shall be adjudged confessed, unless the party no labor. It contains besides an admission charged to have executed the same deny the that he received that amount, a contractual execution thereof, by answer or replication, stipulation to the effect that, in considera- verified by affidavit." Although the plaintion of its receipt, he released the defendant tiff's replication amounted to a general defrom all damages accrued to him on account nial, it was not verified by affidavit, as reof the injury complained of in the petition. quired by the statute. By omitting a verifiIt reads: "In full release of all damages cation by affidavit, the plaintiff confessed the sustained March 31, 1906." The express execution of the instrument pleaded, if it be words of release quoted import a contract one contemplated by the statute. The conwhereby the defendant surrendered his right fession thus involved goes to the manual exof action, and under the state of the plead- ecution of the instrument only. By the later ings confessing its execution this contract decisions of our Supreme Court this includes may not be contradicted by parol. Squires v. a confession to the extent of both signing Amherst, 145 Mass. 192, 13 N. E. 609; Ran- and delivering the instrument pleaded. Hart dall v. Reynolds,, 52 N. Y. Super. Ct. 145; v. Harrison Wire Co., 91 Mo. 414, 4 S. W. Carpenter v. Jamison, 6 Mo. App. 216; Car- 123. See, also, Johnson v. Sovereign Camp penter v. Jamison, 75 Mo. 285; Rowland v. of W., 119 Mo. App. 98, 95 S. W. 951; State, St. L. & S. F. R. R. Co., 124. Mo. App. 605, to the Use, v. Chamberlin, 54 Mo. 338; Thom102 S. W. 19; 24 Am. & Eng. Ency. Law as v. Life Ass'n, 73 Mo. App. 371; Love v. (2d Ed.) 283, 284; 23 Am. & Eng. Ency. Law Central Life Ins. Co., 92 Mo. App. 192; Camp(24 Ed.) 979. There was testimony introduc-bell v. Harrington, 93 Mo. App. 315; Bates v. ed which tended to enlighten the court as to Scheik, 47 Mo. App. 642; McGill v. Wallace, the situation of the parties at the time of 22 Mo. App. 675; Smith v. Rembaugh, 21 Mo. the execution of the release and the circum-App. 390. stance under which it was given. From this As to the suggestion that the release pleadit appears the plaintiff had performed no la- ed is not an instrument in writing contembor for the defendant for which he had not plated by the statute quoted, it may be said been paid theretofore; that his only claim that it falls within the very words of the statagainst the defendant for damages sustained utory provision, for it is clear that the ́deMarch 31, 1906, related to the cause of action | fense pleaded in the answer is founded therestated in the petition. To this extent, and on. It is true the cases we have examined this extent only, the parol evidence, with re- deal with instruments where affirmative respect to the release, was competent under the lief has been sought thereon, and none seem state of the pleadings, as it tended to endue to present the identical question where the the court with the situation of the parties instrument of writing such as a release is and the subject-matter to which the words pleaded in bar as here. However the statute employed in the writing related. All other above referred to is but the counterpart of testimony tending to contradict the contract another to be found in section 643, Rev. St. contained in the release was incompetent and 1899 (Ann. St. 1906, § 643). That statute, so should have been rejected as the pleadings far as is material, is couched in the identical were, for the law renders the instrument thus language as section 746, above quoted. It imconfessed immune from parol contradiction. poses the duty on the pleader of filing with Kessler v. Clayes, 125 S. W. 799. Generally his petition, or other pleading, the instrument speaking, it may be shown under the general of writing on which the cause of action or dedenial that no contract whatever was made fense is founded in those cases wherein it is (1 Ency. Pl. & Pr. 818), but such certainly charged to have been executed by the other may not be allowed when the contract is one party. So far as is essential to show that of those confessed as a matter of law by a section 746 is its counterpart, section 643 failure to plead non est factum under oath. may be quoted as follows: "When any petiDefendant having pleaded the release in its tion, or other pleading, shall be founded upon answer, as executed by the plaintiff, and filed any instrument of writing, charged to have a copy therewith, it is insisted the court been executed by the other party. * ***** should have directed a verdict for it on the and not therein alleged to have been lost or theory that, by failing to deny its execution destroyed the same * * Ishall be filed under oath, the plaintiff confessed it as plead- with said petition or other pleading." It ed. We are entirely clear as to the proposi- will be observed so much of the statute just tion that the release pleaded in the answer as quoted is in identical language with the proit was is an instrument in writing within the visions of section 746, and it certainly imcontemplation of our statute. Section 746, poses the duty upon the defendant in this Rev. St. 1899 (section 746, Ann. St. 1906). So case, relying upon the release in bar of the much of that statute as is pertinent here is as plaintiff's action, to file the same as it did 1 * |