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nominating himself the administrator of de- in different rights, and the damages are giv. ceased, and also that be failed to show his en upon different principles, to compensate official character by a proper profert of his different injuries. One is for the loss susletters of administration, should have been tained by the estate, and for the suffering made and insisted on by way of motion, from the personal injury in the lifetime of at an earlier stage of the proceedings, and the decedent, the recovery of which goes to are not available now. At common law, the benefit of the decedent's creditors, if no action lay for the death of a person,

there are any.

The other takes no account produced by the negligence or wrongful act of the wrongs done to the decedent, but is of another. Now, by statute (sections 5225 for the pecuniary loss to the [widow and] and 5226, Mansf. Dig.), an action lies for next of kin, occasioned by the death alone. damages growing out of the death, at the The death is the end of the period in the one instance of the administrator, for the benefit case, and the beginning in the other. In of the widow and next of kin, and, in the the one case the administrator sues as legal absence of an administrator, at the instance representative of the estate, for what beof the heirs at law, for the same purpose. longed to the deceased. In the other, he The suit authorized by these two sections is acts as trustee for those upon whom the act not for the benefit of the estate of deceased. confers the right of recovery for the pecuThe proceeds do not go into the hands of the niary loss inflicted upon them." The suit at legal representative, to be distributed to cred- bar must be regarded as an action by the itors and heirs and others entitled under the plaintiff as administrator for the benefit statute of administration, but to be distrib- of the estate of the deceased; and, viewing uted to the widow and next of kin "in the it as such, the complaint, which lays its proportion provided by law in relation to damages for the death of the deceased. the distribution oi personal property left by would be bad on demurrer, for damages for persons dying intestate;" and the damages the death of decedent, when recovered, are are to be such as the jury in the case “may no part of the assets of the estate, to be disdeem a fair and just compensation, with ref

tributed to creditors, and so forth. But as erence to pecuniary injuries resulting from no demurrer was interposed, and since the such death, to the wife and next of kin of manner of eliciting the testimony, the lansuch deceased person.” Again, a suit for guage of the instructions, the argument of damages to person or property, which might counsel, and the verdict of the jury and judgbe brought by the injured person, did not, ment of the court, all go to show that the at common law, survive to his legal repre- parties, the jury, and the court all treated sentative; and, if it had been instituted by the claim of the plaintiff as one for the inthe deceased in his lifetime, it abated at his jury to deceased in his lifetime,--that is to death. Now, by statute, however (section say, for the pain and suffering he endured 5223, Mansf. Dig.), an "action may be main. from the moment he was stricken until the tained against the wrongdoers, and such moment of his death,-which was legitimate, action may be brought by the person in- we will also treat the case in that way, and jured, or, after his death, by his executor consider the complaint as amended to coror administrator, against such wrongdoer, respond with the proof. or after his death (that of the wrongdoer), The court is of the opinion that the eviagainst the executor or administrator, in the dence of negligence on the part of the desame manner and with like effect in all re- fendant company and its servants and emspects as actions founded on contracts." ployés is sufficient to authorize the verdict In construing these several statutes togeth- of the jury, and that the evidence as to pain er (for they bear some relation to one an- and suffering is sufficient to justify the verother), this court, in the case of Davis v. dict for actual damages; and a majority is Railway, 53 Ark. 117, 13 S. W. 801, said: of the opinion that there is evidence of wan“The right of action given by the latter stat- ton disregard of the rights and safety of ute (as sections 5225 and 5226; Lord Camp- others on the part of the defendant's embell's act] to the personal representative of ployés, upon which the jury may have asone whose death has been caused by the de- sessed punitive damages, as they did. fault of another is created by the statute, As to the defence of contributory negliand is not a continuation of the right of ac- gence, a majority of the court is of the opintion which the deceased had in bis lifetime. ion that, whether or not the conduct of de

* The right which accrued to the de- ceased, in handling the broken wires, was ceased survives to his administrator by virtue careless, somewhat depends upon the object of the former statute. (Section 5223, Mansf. he had in so doing, and also upon his knowlDig.) The newly-created right (by section edge or ignorance of all the elements of dan5225] results from, and accrues on, the death ger connected therewith, and that the jury of the injured party. Both actions are pros- may have found from the evidence that he ecuted in the name of the personal represent- was not guilty of contributory negligence, ative, where there is one, and may proceed notwiwstanding the warnings that were girpari passu, without a recovery in the one en him. Thus having in view the prerogahaving the effect of barring a recovery in tive of the jury, we do not feel justified in the other, because the suits are prosecuted disturbing their verdict.

The instructions of the court, as "given, county, and, omitting the caption, is as folwhen taken all together, we think, fairly and lows: "On this day come the parties to this substantially declared the law to the jury. cause, the plaintiff, by his attorney, J. C. The judgment is therefore affirmed.

Hawthorne, and defendant, by attorneys, F. G. Taylor and W. H. Cate, and, by consent of all parties, it is ordered, decreed, and ad

judged that the contract and trade in which ALEXANDER V. BRIDGFORD.

the notes herein sued on by plaintiff were

executed and given be in all things rescinded, (Supreme Court of Arkansas. June 2, 1894.)

and each party restored to all the rights, inCOVENAXT-AGAINST INCUMBRASCES-EVIDENCE

terests, and property, or its equivalent, which DAMAGES.

he had at the time said contract was made 1. Tax deeds regular on their face are competent as evidence, without preliminary proof of

and entered into. It is therefore considered, the forfeitures and of the legality of the sales. ordered, and decreed by the court, by and

2. In an action for breach of warranty with the consent of both parties to this cause, against incumbrances, where defendant sets up

that defendant, S. W Alexander, convey to that the land had been already lost to plaintiff by a sale under his own mortgage, before it

the plaintiff, Jefferson Bridgford, by proper was sold for the taxes which defendant had deed, all the lands, mill machinery, and other left delinquent, but the decree foreclosing the

property, real and personal, which he may mortgage provides for the redemption, plaintiff may show a satisfaction of the mortgage en

have acquired of said Jefferson Bridgford, tered pending the trial.

by reason of contract or trade, which is the 3. A warranty against incumbrances in a

subject-matter of this suit; that plaintiff, deed made in pursuance of a consent decree

Bridgford, convey to the defendant, s. W. may be sued on by the grantee in respect of an incumbrance of record at the time of the de- Alexander, by proper deed, the lands in the cree, which should have been included in the state of Iowa which he acquired of said deaccount taken thereunder, but of which the

fendant in and by virtue of the contract, grantee then had no actual notice. 4. Where the covenantee's title is entirely

which was the subject of controversy in this defeated by the incumbrance's change into an suit, and put the defendant in possession absolute adverse title, he is entitled to recover thereof; also, that he cancel and return to what he paid for the land, with interest.

the defendant the promissory notes herein Appeal from circuit court, Clay county; sued on; also, that plaintiff pay the defendJames E. Biddick, Judge.

ant the value of all personal property he reAction by Jefferson Bridgford against S. ceived by reason of this said contract. The W. Alexander for damages for breach of a

conveyances herein decreed to be made by special warranty against incumbrances. the respective parties to be executed in due Judgment for plaintiff. Defendant appeals. form, according to the laws of the state Affirmed.

wherein the property to be conveyed is situThis is an appeal from a judgment for ated, and to convey to grantee, all and in full, damages awarded for breach of warranty the entire right and interest and property against incumbrances in the deed of convey- which he had or held in the property at the ance of land by the appellant and wife to date of original conveyance mentioned in the appellee, which covenant is as follows: pleadings in this suit, and free from all in"To have and to hold said lands as above cumbrances and taxes except such as existed conveyed to the said Jefferson Bridgford, and at date of original contract between the parto his heirs and assigns, hereby warranting ties herein. The form and sufficiency of said and defending the title to said premises conveyances to be subject to the approval of against any and all incumbrances done or this court. It is further considered, decreed, suffered by us, and against none others what- and adjudged by the court that an account ever.” This deed was executed by the appel- be taken by G. B. Oliver, special commissionlant and his wife in pursuance of, and in er, between the parties, in which the parties accordance with, a decree in chancery, ren- hereto shall be charged with the amount of dered by consent, and between the parties any incumbrances and taxes which may have to rescind a sale of lands, a mill, and ma- been permitted to accumulate against any chinery, made by the appellee to the appel- of the property held by either party or his lant, for the consideration of $10,000, to be vendee since the date of original trade, also paid by the appellant as follows, to wit: with any wanton or willful destruction of im$1,600 to James Guthrie, in satisfaction of a provements, or any forfeiture of any rights balance due on a mortgage Guthrie held upon or easements, or any depreciation of imprethe lands; $4,500 in deferred payments; and, ments except ordinary wear of usage, also for the remainder, to convey to appellee some any timber used, and all rents and profits lands in lowa. There were about 1,050 acres which might properly arise from the proper of the lands sold by Bridgford to the appel- use of the lands mutually traded by the parlee. Alexander, the appellant, failed to pay ties; it being intended by this decree that the notes, and Bridgford sued on them. The both parties shall be restored to their respetcause was transferred to equity, where the tive rights, and, on the account thus taken, a consent decree for partition was rendered. balance will be struck, and judgment renThis decree was rendered August term, 1887, dered in favor of the party in whose favor, of the circult court, western district of Clay and for the amount, the balance may be


found; and in case the plaintiff, Jefferson terms and provisions of said decree; that Bridgford, should in any event fail to make said decree, by its terms and provisions, setrestitution to the defendant, as herein agreed tled and expressly adjudicated all incumand decreed, or in any respect fail to perform brance, by way of taxes or otherwise, which what is herein required of him, or to make to at the date of said decree was upon or in any defendant all his rights herein decreed, on way affected said lands, in so far as defendthe account to be stated, then a decree will ant had suffered them to be affected; and be rendered against him for such sum said decree expressly directed that, in pursumay make defendant secure in all his rights ance to said decree, all taxes on or against herein; and, to properly secure said defend- said lands, which it was the duty of the deant in the payment of such a decree, a lien fendant to pay, should be ascertained by the is and will be retained on all the property, special commissioner appointed by the court real and personal, which defendant is herem in said cause, and charged upon a statement decreed to convey to plaintiff, to wit: [Same of account between the parties, whereby such lands as described in amended complaint, and amounts due for taxes was duly estimated, other lands.] It is further ordered that both or, if not, it was through the failure or negparties take proof as to the account to be lect and refusal of plaintiff to present the stated, and that on the compliance of both same to the special commissioner appointed, parties with the findings of this decree, ac- and this action is hereby barred. (3) That cording to approval of this court, that each said decree fully settled and adjudicated all party put the other in possession herein de claims, matters, liens, taxes, and incumbrancreed and to be conveyed; it being further

ces of every kind between the parties thereto ordered and decreed, however, that if said in any way affecting said lands; and all such plaintiff, Jefferson Bridgford, shall in good matters in relation to and growing out of faith deliver possession of the land herein

said land transaction have been fully adjudidecreed and agreed to be conveyed to de- cated and finally disposed of by this court." fendant by plaintiff, to the defendant or to

There was testimony tending to show that his agent, the defendant shall forth with de- Bridgford had no knowledge of the tax sale liver possession of the lands and mill herein

until after the time for redemption had exdescribed to plaintiff; and in case plaintiff pired, and evidence, also, to the reverse. shall make or tender possession as here

There was evidence, also, to show that the in ordered, or defendant shall refuse or

land was lost to Bridgford, by reason of the fail to take possession of the lands in Ar

tax sale, or so much of it as was finally in kansas, and the mill thereon, on the filing

controversy here. There was evidence tend

ing to show the value of the land sold at the of an affidavit by plaintiff, he shall have

tax sale, the value of the amount of that an order of possession at once, provided, further, no such writ of possession shall

Bridgford lost, etc. The tax deeds were in

troduced in evidence, to which the defendant issue until after 60 days from this date." The plaintiff (appellee), in his complaint, set

objected, because no foundation was laid by

proof that tax sales were legal, regular, etc. out the above facts, made exhibits of copies

The defendant, over objection of the plaintiff, of the deed and the decree, and a verred “that after the date of the original conveyance of

read in evidence mortgage by plaintiff and

wife, dated March 26, 1883, to James Guthsaid land by plaintiff to defendant, as set out

rie, to secure $2,389.25, and the record, showin said decree, and before the date of said

ing foreclosure against all the land in the decree, to wit, on the 11th day of August, 1887, which fact was entirely unknown to

plaintiff's complaint. The defendant then of

fered in evidence, and was allowed to read this plaintiff, said defendant permitted said

to the jury, over objections of the plaintiff, lands to be sold for taxes; that he failed to

the master's report of sale of lands under the redeem said lands from the purchaser there

Guthrie mortgage, the order for same, the of, and, they being wild and unoccupied, by

record of confirmation of the sale, the deed virtue thereof entered upon said lands, and

of the master for the lands sold under the took possession thereof, to the damage of this

decree, and the record of its approval. The plaintiff in the sum of five thousand dollars;" defendant then read in evidence, over the and prayed judgment. Defendant answered objection of the plaintiff, the deed of J. A. as follows: “And now comes the defendant, McNeil, as sheriff of Clay county, dated 21st and by leave of the court here, for that pur

of July, 1882, conveying to McMillen and Ebpose, first had and obtained, in vacation, and

bart lands described in a deed of trust from answering plaintiff's complaint, here says:

M. L. Watts, which had been previously of(1) By way of demurrer, that said complaint fered and read in evidence, over objection of does not state facts sufficient to constitute a

the defendant, and which was a deed from W. cause of action. (2) Further answering, de- H. Shirk to M. L. Watts, purporting to convey fendant states that he admits the decree was all the lands described in plaintiff's comrendered as alleged; also that it directed plaint. On the introduction of the said deed defendant to convey said lands to the plain- of trust, the plaintiff withdrew his cause of tiff; that said deed was executed to plaintiff action, so far as it related to the mill tract by defendant for the consideration of one of 25 acres, and the E. fractional 42, section dollar, and the further consideration of the | 1, township 21 N., range 5 E., containing 374 acres, leaving in controversy in this case by an examination of the tax sale record, or only N. 4, S. 12, section 6, lots 4 and 5 in otherwise, or by ordinary diligence and inX. E. 14, and lots 4 and 5 in N. W. 14, of quiry that a prudent business man would section 6, township 21 N., range 6 E., and use in the transaction of his own business, all of fractional sections 31 and 32 in town- then if, under the evidence, you believe the ship 22 N., range 6 E., in Clay county, Ark. plaintiff has shown a right to recover, your After the defendant closed his testimony, the verdict should be only for th amount it plaintiff's attorney, over the objection of the would have taken to redeem said land from defendant, was permitted to enter satisfac- the tax sale, together with legal interest tion on the record of the judgment of fore- thereon to this date. (4) The court instructs closure, in case of James Guthrie v. Jeffer- the jury that if, from the evidence, they son Bridgford, as to section 6, township 21 believe the deed sued on in this action was N., range 6 E., and sections 31 and 32, town. made in obedience to a decree in equity of ship 22 N., range 6 E., which entry was this court, and not as a matter of purchase signed, “James Guthrie, by J. C. Hawthorne, and sale between the parties, and was deHis Attorney." This redemption, it appears, livered to the plaintiff as such deed, then the was made in pursuance of a previous under- | plaintiff cannot recover on the covenant of standing between Guthrie and Bridgford, and warranty in the deed, and your verdict of a provision in the decree of foreclosure, should be for the defendant. (5) The court and was made upon payment, as it recites, instructs the jury for the defendant that a of $1,000, and is of date June 8, 1892. The final judgment at law or a decree in equity only objection to this entry by the defendant is conclusive between the parties thereto, was that it came too late, and while the case and neither party can go behind said judgwas on trial, and after the defendant had ment or decree to sue or recover for any closed his case.

matter that was settled in or by said judgment Instruction asked by defendant: Where- or decree, or matter that, under the terms of upon the defendant prayed the court to in- said judgment or decree, should have been adstruct the jury as follows: "(1) The court justed or settled between the parties to said deinstructs the jury that the measure of dam- cree; and if, from the evidence in this case, you ages on the covenants of warranty, when the believe that the decree in controversy in title wholly fails, is the consideration paid this case was a final and full settlement of for the land; and the consideration stated in the controversy between the parties to this the deed is the evidence of that amount, un- suit, and that the said plaintiff could have less, from the evidence, you find that the con- presented to the special commissioner in that sideration actually paid was more or less case, under the decree, his claim for taxes than stated in the deed, in which case the and incumbrances upon said land, permitted measure of damages is the actual considera- or suffered to remain by the defendant, and tion paid, with legal interest thereon to date; had the same adjusted in that proceeding, yet if, from the evidence, you find that the then the plaintiff is estopped from bringing only incumbrance on the land was a tax cer- any action on matters that said decree protificate of purchase, and that the time of vided for the settlement of, and your verdict redemption had not expired at the time of should be for the defendant.” Which instructhe making and delivering of the deed, then tions the court refused to give. To the rethe measure of damages is only the amount fusal to give the instructions asked by the necessary and requisite to redeem said land defendant the defendant then and there exfrom tax lien with legal interest; and that cepted at the time. the plaintiff, under the law, could not sit still Instructions given by the court: The court, and permit the land to be lost by his neglect of its own motion, gave the following into redeem, and then recover on the cove- structions to the jury, to wit: "(1) In this nants of warranty, the entire consideration action the plaintiff sues defendant on a covepaid for the land. (2) And the court in- nant against incumbrances done or suffered structs the jury that the record of tax sales by defendant. Plaintiff alleges that defendis a public record, and imports public notice ant executed a deed to him for certain lands, to all persons of sales made for delinquent described in complaint, with a covenant taxes, and all persons buying lands are against incumbrances done or suffered by charged with the knowledge of what they defendant; that, at the time said deed was could have seen and known by an inspection executed, said defendant had, unknown to of these records. (3) The court instructs the plaintiff, permitted said lands to be sold for jury that all persons are bound to take no- taxes, and failed to redeem the same, and tice of the public records, and all other mat- the purchaser obtained a deed to said land, ters, affecting the title of lands purchased by to plaintiff's damage. (2) The deed introthem, that can be obtained by inquiring and duced in evidence from defendant to plainordinary business diligence; and if you, from tiff contains a covenant against incumthe evidence, believe that the plaintiff in this brances permitted by defendant, and if the cause knew that the land conveyed to him jury believe from the evidence that at the hy defendant had been sold for taxes, and time said deed was executed, that defendant that the time for redemption had not ex- had permitted said land to be sold for nonpired, that he could have known such facts payment of taxes, and that, without the knowledge or fault of plaintiff, said for- After giving the above Instructions, and feiture became final, and that plaintiff lost after the case was being submitted to the said land by reason of said incumbrance, jury on the evidence and instructions of the they will find for the plaintiff, and assess court, and in the middle of the last argument his damage at the value of the land at the to the jury on behalf of the defendant, which time said deed was executed; provided, that said argument was limited to 25 minutes, said damages can in no event exceed the the court, of its own motion gave the folvalue of the consideration given by the lowing instructions, namely: “The jury have plaintiff to the defendant for said land, and been told that it is for them to determine the interest thereon at 6 per cent. from date of amount or value of the consideration paid deed; and the amount of the consideration or given by plaintiff for the land in question, paid for the land by plaintiff is for the jury which he alleges to have lost by reason of to determine, from the facts and circum- incumbrances suffered by defendant. In arstances in proof in the case. In other words, riving at their conclusion on that question, if the consideration given by the plaintiff to they may look, not only to the statements the defendant for said land, with interest of the deed, but to any other consideration from date of deed, be less than the value of shown by the proof. If it be shown that the land, the jury, instead of assessing the plaintiff gave up, surrendered, and conveyed damages at the value of the land, will allow to defendant notes, lands, or other property only the amount of the consideration paid as a consideration for said conveyance, they by the plaintiff to defendant for said land, may take the value of such property, if the with 6 per cent. from date of deed. (3) If, same be proved, into consideration in arrivbefore the execution of the deed from de- ing at their conclusion as to what considerafendant to plaintiff, the title of the land, or tion was given by plaintiff to defendant for any portion thereof, had already been lost, said land.” To the giving of which lastby virtue of the foreclosure under a mort- mentioned instruction the defendant objectgage executed by plaintiff to a third party, ed, and then and there excepted at the time. then plaintiff cannot recover for loss of such Under the instructions of the court, the jury portion of land, for the reason that the cove- found a verdict for the plaintiff, and the jury nant of defendant is only for incumbrances also returned into court the said special done or suffered by himself; but if the prop- questions, with their answers, as follows, erty in question has been redeemed by the to wit: "Whole tract of 672 acres. What do plaintiff by a tender of the amount of sale, the jury find the value of the whole tract of and 10 per cent. interest thereon, then the land to have been in 1888, at the time the mere fact that the land had been sold wound deed from defendant to plaintiff was exe not prevent a recovery by plaintiff after its cuted? Answer: Two dollars and thirty-one redemption. (4) In order to redeem land cents per acre. What do the jury find the sold under mortgage, the mortgagee must value of the 24914 acres, included in the morttender to the purchaser the amount for which gage to James Guthrie, to have been in 1888, the land sold, with 10 per cent. interest; and at the time the deed was executed? an. if there be more than one tract of land sold, swer: Two dollars and thirty-one cents per and the mortgagee desires to redeem only acre. Louis Oliver, Foreman.” The jury reone of them, he must tender to the purchaser turned a verdict for the plaintiff in the sum the amount of which said tract sold, with a of $1,416. Motion for new trial was overstatement or notification that he tenders the ruled, and the defendant appealed same to redeem that particular tract.” To

Douglas Hopson and J. Perry Johnson, for the giving of which the defendant then and

appellant. G. B. Oliver and J. C. Hawthere excepted at the time.

thorne, for appellee. And the court submitted to the jury the following special questions, to be answered by them, and returned with their general HUGHES, J. (after stating the facts). The verdict, viz.: "Whole tract, 672 acres. What objections of the appellant to the admission do the jury find the value of the whole tract in evidence by the circuit court of the various of land to have been in 1888, at the time tax deeds showing the sale of the lands for deed from defendant to plaintiff was exe- taxes, on the ground that no foundation was cuted? What do the jury find the value of laid, showing forfeitures and the legality of the 31914 acres, included in the mortgage to tax sales, is not tenable, as the deeds themJames Guthrie, to have been in 1888, at selves make a prima facie case of compli. the time the deed was executed ?" To the ance with the law in all steps taken by the asking of which questions by the court the officers of the law, prior to and including the defendant objected, as tending to mislead sales, unless the deeds were void on their the jury as to what their general verdict faces, which is not contended. should be, which objection was overruled by There was no error in the court's permitthe court, and the said questions given to the ting satisfaction of the Guthrie mortgage, as jury, to which action of the court in requir- the decree of foreclosure provided for the reing the jury to answer said special questions demption of the lands sold thereunder, and it the defendant then and there excepted at the was doubtless understood between the par. time.

ties that they could be redeemed.

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