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to, vary, or contradict the same, except upon proper allegations of fraud, accident, or mistake. Following Southard vs. A. V. & W. Ry Co. 24 Okla. 498.
3. A promisory note or obligation, payable to a rail. road company in aid of the construction of its line between two given points, is not void as against public policy.-Following Guss vs. Federal Trust Company, 19 Okla. 138; Guthrie & Western Ry Co. vs. Rhodes, 19 Okla. 21; Cooper vs. Ft. Smith & Western Ry Co. 23 Okla. 139, (Vol. 7 Okla. Law Journal p. 48,); Cobb vs. Wm. Kenefick Construc. Co., 23 Okla, 449, 100 Pac. 551
4. In the absence of proper allegations of fraud, duress, accident or mistake, testimony which tends to contradict, change, vary or add to the conditions or consideration plainly incorporated in a written contract is not admissible.
DAVID KRAUSS et ux, Plaintiff in Error,
No. 2412 JAMES M. POTTS, et al., Defendants in Error.
(Rendered September 9th, 1913.) Error from District Court of Tillman County. Hon. J. T. Johnson, trial Judge.
Reversed and remanded.
1. (a) An instrument purporting to be an absolute conveyanoe of real estate but intended to be defeasible or as security for the payment of money is deemed a mortgage and must be recorded and foreclosed as such.
b. The holder of a deed, absolute, taken as a security for a debt, can only acquire title by a foreclosure of his mortgage, and any agreement of forfeiture is void.
c. Any person having an interest in the mortgaged real estate may redeem from such deed.
2. Every instrument explanatory of any deod or other writing purporting to be a conveyance, but intended to be defeasible or as security for the payment of money, shall be deemed a part thereof, and must be filed and recorded therewith; and unless such instruments are so filed and recorded together, they and each of them shall have no other effect than an unrecorded mortgage, and the recording of the principal instrument shall secure no rights to the holder thereof.
3. Any person purchasing or taking any security a. gainst real estate in good faith and without notice from one holder under an instrument purporting to be a conveyance, but intended as security for the payment of money, which instrument has been duly recorded without any other instrument explanatory thereof, shall be protected to the extent of the purchase price paid or aotual outlay occasioned, with lawful interest against all persons except those in actual possession at the time of such purchase or outlay.
4. Any conveyance, other than as above provided, by one holding under an instrument purporting to be a conveyance, but intended as security, shall be deemed and treated as an assignment and transfer of the mortgage rights of any indebtedness due the maker thereof.
BOARD OF COUNTY COMMISSIONERS of Delaware
No. 3551 T. J. WILLIAMS, Defendant in Error.
(Rendered September 9th, 1913.) Error from District Court of Delaware County.. T. L. Brown, trial Judge.
Affirmed A county treasurer who was inducted into office on November 16, 1907. was, by reason of sections 3024 and 3028 of Wilson's Rev. & Ann. Statutes, and by reason of aot of the Legislature approved April 8, 1908 (Soss. Laws, 1907-8 p. 165), entitled to receive after July 1, 1908 for the remainder of his term where the population of his county was shown by the census taken and returned by the assessors of property in June, 1908, to be more than 10,000 inhabitants and less than 15,000 inhabitants, a salary of $1.500 per year.
CHICAGO, ROCK-ISLAND & PAC. RY. Company, Plaintiff in Error. vs.
No. 2870 J. A. McALESTER, Defendant in Error.
(Rendered August 12th, 1913.) Error from District Court of Stephens County. Hon. Frank M. Bailey trial Judge.
1. Where a person, with the knowledge and consent of the servant of a common carrier, has entered its train for the purpose of assisting a passenger, the carrier is under obligation to permit him, in the exercise of due diligence, to accomplish his purpose and alight from the train before it is set in motion.
2. Where plaintiff, not a passenger, with the assurance of defendant's conductor that he will have time to do so, in the night time, without having had much experience in getting on and off trains, goes onto its train in the act and for the purpose of assisting his wife and four small children, all passengers, with handgrip, to a seat thereon, where the train is not hold a minute nor near as long as usual, but starts before he has time to accomplish said purpose, where, when he has found a seat for such passengers, he, without taking time to say goodbye, hurriedly goes to the vestibule door at which he ontered for the purpose of alighting, but is prevented by the act of defendant's breakeman in closing the door at the time he approches it, where he then asks the breakeman if the train is "going”, and, upon being informed it is, asks that it be stopped to permit him to alight, where the breakeman thereupon, without heeding his request, directs him to go to the next vestibule door and get off, where in accord with such direction, he alights about two hundred yards from the station from which the train started, where he sustains bodily injuries in so alighting and where there are no lights in the darkness outside the train, and where he has exercised due diligenoe in point of time in accomplishing his purpose on the train and a. lighting therefrom, it cannot be said as a matter of law that the negligence of defendant was not the proximate cause of his injuries.
3. Under $ 6. Article 23 ($. 355 William's) Constitution, the verdict of the jury for plaintiff, where the facts are as stated in the second paragraph of the syllabus, is conclusive as against the defense of contributory negligence.
4. It is not error to refuse requested instructions substantially embodied in others given the jury by the court.
THE CITY OF SHAWNEE, Plaintiff in Error, vs.
No. 2841 FANNIE W. CHEEK, Administratrix, Def't in Error.
(Rendered August 12, 1913.) Error from District Court of Pottawatomie County. Chas, B. Wilson trial Judge.
1. A land owner owes a trespasser a duty in respect 10 safety from dangerous artificial conditions of premiae, to not injure him intentionally or wantonly.
2. A mere omission although superficially characterized by mere thoughtlessness or heedlessness, but in its deeper explanation, involving reckless disregard for the safety of merely technical and reasonably anticipated trespassers, such as children of tender years, especially if unconscious trespassers in respect to obviously and seriously dangerously artificial condition of premises may amount to wantonness in the land owner: but the attractiveness and accessibility of the place or thing in. volving such danger to and the probability of such tros. passers, the gravity of the danger in such condition, the length of time such condition has existed, the smallness of cost and of deprivation of beneficial use in. volved in eliminating the same, and the reasonablenees of the inference that the land owner, a person of ordina. ry sensibilities and prudence, knew or should have known of and under all the facts and circumstances in the case should have eliminated such danger are proper considerations in determining whether there was such reokless disregard for the safety of such trespassers.
3. A child under seven years of age, or in the absence of evidence of capacity, bewteen seven and fourteen years of age, is presumed to be incapable of guilt of more than technical trespass, as affecting question of duty of owner in respect to dangerous condition of prem ises; and the character of the trespass may be a circumstance to be considered by the jury in ascertaining whether there is contributory negligence
4. Where there is no evideuce of reasonable expectanoy in next of kin that she would receive pecuniary benefits from the continuation of life of a deceased minor son beyond the period of his majority there can be no recovery therefor; and recovery must be limited to pecuniary loss within the period of minority.
5. Where the petition does not allege facts showing a reckless disregard for the safety of reasonably anticipated technical, if not unconscious trespassers, nor allege wantonness in the omission of the landowner to eliminate danger in artificial condition of premises, in an action for death of such trespasser, a general demurer to the petition should be sustained.
6. The cause of action given by section 4:313 and 4314 Stat 1893 for the benefit of next of kin on account of death resulting from wrongful act or omission is indivisible; and where one next of kin sues alone, without objection, and recovers in such action, euch one is a trustee as to the share of the beneficiary not joining in the amount recovered
7. Where one of two beneficiaries under Sec. 4313 and 4314 Stat. 1893, if next of kin dies the entire right of action survives; and where he had commenced action in his lifetime his estate is entitled to his share of the amount recoverable.
8. The reasonable expectancy of pecuniary benefit from the original decedent during the contemporaneous lives of the two beneficiaries under Sec. 4313 and 4314, Stat. 1893 before the death of one of them, together with