(209 P.)

sale and certificate void, under the statute above cited, there is no provision whatever for a deed to the redemptioner, except that in section 6867, which provides that

"The said holder of such subsequent incumises sold, the same as if he had been the origibrance shall be entitled to a deed to said premnal purchaser thereof."

TELLER, J. Plaintiff in error failed in a f Section 6866 directs the trustee making suit to foreclose a mortgage and brings error. the sale to issue to the purchaser a certificate The facts out of which this cause arose, of sale on which the purchaser will be enand which are necessary to be considered, are titled to a deed unless the land is redeemed. as follows: One Burns, owning the land in- [3] Section 6873 authorizes the issue of a volved in this suit, executed a trust deed up- deed after the period of redemption has exon it to secure an indebtedness to one Wright.pired. When a redemption has rendered the He then conveyed the property to the plaintiff in error, Stryker, subject to the Wright incumbrance. Stryker sold and conveyed the land to one Dunn, who executed a deed of trust to secure a balance of the purchase price due to Stryker. Dunn thereafter executed a deed of trust on the premises to secure an indebtedness to the Page and Woodford Livestock Commission Company, subject to the two trust deeds above mentioned. Later Hutchison obtained a judgment against Dunn, which was made a lien upon said premises. Default having been made in the payment of the Wright indebtedness, the land was sold by the public trustee, and purchased by Wright. Thereafter Page and Woodford redeemed the land from said sale, and Hutchison later redeemed from them by paying the amount of the combined debt of Wright and Page and Woodford. A sheriff's deed was issued to him. Thereupon plaintiff in error sought to foreclose his lien. The trial court overruled a demurrer to Hutchison's answer, which set up his redemption, as a bar to the action.

In the determination of this question we must construe the statute which provides for redemptions in cases of foreclosure by public trustee sale. Section 6867 et seq. R. S. 1908. The grantor in a deed of trust, and subsequent incumbrancers, may redeem in six months after a sale by a trustee. A judgment creditor may redeem at any time after the expiration of six months, and before the expiration of nine months from such sale. The statute provides that the sum paid to redeem shall be added to the sum represented in the incumbrance, held by the person so redeeming, and shall be deemed to be secured thereby, etc..

[1] Thus an incumbrancer who redeems has made the sum paid in redemption a part of his incumbrance. That is to say, a mortgage or a deed of trust for his benefit will, after redemption, secure the total of his debt and the amount paid to redeem. There is nothing in the statute to show an intent to tack a redemptioner's debt to the debt from which he redeems, and thus move his lien forward. The incumbrance which is increased by the sum paid to redeem is affected only as to its amount, and not at all as to its rank.

[2] The final clause of section 6868 provides that a redemption shall render void the sale and the certificate issued thereon. In the absence of anything to indicate a contrary intent, it must be held that the subsequent liens, thus left in force, continue as before the sale.

This is clearly intended to cover the case of redemptioner as the other section covers the case of the holder of a certificate of purchase. It simply authorizes a deed, but in no sense determines the effect of such deed as the same concerns the order of lien.

[4] The theory of the defendant in error is that the sale for the benefit of Wright foreclosed all interest, subject only to relief by redemption; that Stryker, having failed to redeem, lost his lien when Page and Woodford redeemed. The sole question for determination is as to the correctness of that position. Were incumbrancers allowed different periods of redemption, and one failed to redeem, it would not be inequitable to allow a redemption by a subsequent incumbrancer to cut him out. But since there is but one period of redemption by incumbrancers, their rights may be determined in a race to redeem, if counsel's construction of the statute be accepted. If the junior incumbrancer succeeds in redeeming before his senior does so, the latter is cut off, or at least postponed to his junior in time and right. The junior has thus been placed in a better position than he voluntarily assumed when he took the land as security. This construction of the statute would make the law more drastic and inequitable than the much criticized rule of "tacking," where a mortgagee, by purchasing an earlier mortgage, was allowed to squeeze out intermediate mortgages or judgment liens, because that was allowed only when the later mortgagee took without notice of other incumbrances. By preserving the order of liens as they originally stood, the defendant in error is put in no worse position than he was when he obtained his judgment. If the trial court was right in holding that the answer was good, thus in effect cutting out the Stryker incumbrance, the statute gives the incumbrancers rights by which the order of liens may be changed, without any equitable ground therefor.

Counsel have discussed at some length the doctrine of subrogation, but we do not find it necessary to determine whether or not it is to be applied in this case.

The demurrer to the answer was wrongly

overruled, for which reason the judgment is one of the south-bound passenger trains of reversed.

SCOTT, C. J., not participating.

CHICAGO, R. I. & P. RY. CO. v. SHARP.

(No. 10838.)

the Chicago, Rock Island & Pacific Railway Company at Enid, and went into the middle compartment of the forward coach, which was set apart for negroes. Shortly afterwards, desiring to smoke, he went forward into the compartment usually used as a negro smoker. In this compartment there were four or five white men. Upon discovering Sharp riding in the compartment with these

(Supreme Court of Oklahoma. Sept. 26, 1922.) white men, the conductor requested him to go

(Syllabus by the Court.,

Carriers 352-Carrier held liable for conductor's forcible ejection of negro passenger from coach designated for use of his race on account of presence of white men.

Where S., a negro passenger on one of the trains of the C., R. I. & P. Ry. Co., entered the compartment of the forward coach of said train used and designated as the negro smoker, but in which several white men were riding, and where the conductor in charge of said train, because of the presence of said white men therein, ordered S. to leave said compartment, and, upon the refusal of S. so to do, forcibly ejected him therefrom, held, that S. was rightfully in said compartment; his removal therefrom was unlawful, and the railroad company is not exempt from damages for said unlawful ejection by the provisions of sections 860-870, Rev. Laws 1910, known as the "Coach Law." Held, further, that the conductor in charge of said train was without authority to deprive S. of the comforts and conveniences provided for members of his race, in order to accommodate members of the white race.

Appeal from District Court, Garfield County; James B. Cullison, Judge.

Action by J. E. Sharp against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. O. Blake, W. R. Bleakmore, and Kent W. Shartel, all of El Reno, for plaintiff in

error.

H. J. Sturgis, of Enid, for defendant in

error.

NICHOLSON, J. J. E. Sharp brought this action against the Chicago, Rock Island & Pacific Railway Company to recover damages in the sum of $2,000 on account of his ejection from the smoking compartment of one of the defendant's coaches. At the trial the parties entered into a stipulation substituting Walker D. Hines, Director General of Railroads for the Chicago, Rock Island & P. Ry. Company, as defendant. A verdict was returned for the plaintiff in the sum of $200, upon which judgment was rendered, and to review which this proceeding in error is prosecuted. After the case was lodged in this court, the plaintiff died, and the cause has been revived in the name of H. J. Sturgis, administrator of his estate.

to the other compartment. Sharp stated that he was smoking and refused to leave the smoking compartment, whereupon the conductor forcibly ejected him therefrom and compelled him to continue his journey in the middle compartment. There is some conflict in the evidence as to whether the forward compartment contained a sign designating it as for negroes. Sharp testified that it was so designated, while the conductor and train porter both testified that there was no sign in that compartment, but there was a sign in the middle compartment designating it for negroes. Sharp testified that before he entered the compartment from which he was ejected he asked the train porter where he could smoke, and the porter replied that said compartment was the proper place for him to go if he desired to smoke. The porter admits this conversation, but says that it took place after Sharp had been removed from such compartment. This coach was divided into three compartments, the rear compartment being used as the smoker for white men.

The plaintiff in his petition alleged that, while he was rightfully in said compartment used as a negro smoker, the conductor in charge of said train, in a coarse, rude, and insulting manner, ordered plaintiff to get out of said compartment, and, when plaintiff protested against such insult and claimed that he was rightfully in said compartment, the conductor unlawfully, maliciously, wantonly, and oppressively assaulted plaintiff and with force and violence ejected him from said compartment, causing him to suffer great physical and mental pain, and insulted and humiliated him in the presence of the other passengers, both white and negro, who were in said car.

Complaint is made of the action of the trial court in refusing to give instructions No. 3, 4, and 5 requested by the defendant, and in giving the court's instructions No. 5, 6, 7, and 8. The court's instruction No. 9 is practically the same as defendant's requested instruction No. 3, so the defendant was not prejudiced by the court's failure to give such instruction.

Requested instruction No. 4 charged the jury that if the plaintiff, desiring to smoke, entered a compartment of a passenger coach which was being occupied by members of the white race, and after his entrance into said The facts are that Sharp, a negro, boarded compartment he was notified by the conducFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(209 P.)

tor in charge of said train to depart there- authority contended for by the plaintiff in from and that he had no right to remain therein, and after said warnings, the plaintiff, a negro, refused to obey said warnings, that said conductor thereupon, by reason of the authority vested in him by the statutes of the state of Oklahoma, was authorized, in case of plaintiff's refusal to depart from said compartment in which sajd white passengers were then riding, to use such physical force as was necessary to remove the plaintiff, a negro, from said compartment, and that said conductor in so doing, if he used no more force than necessary to accomplish said ejectment, would not be liable in damages to said plaintiff.

This instruction did not correctly state the law, in that it based the right of the conductor to eject the plaintiff from the compartment upon the fact that white passen- not designated for his race, after having gers were riding in said compartment, regardless of the fact that said compartment had been set aside for negroes. By this instruction the court was asked to tell the jury, in effect, that the plaintiff had no right to ride in the compartment provided for negroes, if there happened to be white passengers riding therein. The trial court properly refused such instruction.

therefrom.

By this instruction the court [ We are not unmindful of the holding of the was asked to direct the jury that the con- Supreme Court of Arkansas in Bradford v. ductor acted within his rights in so doing. St. Louis, I. M. & S. Ry. Co., 93 Ark. 244, 124 By the provisions of the coach law, the ac- S. W. 516, wherein it was held that under commodations shall be equal in all points of the provisions of Kirby's Digest, §§ 6622-6632, comfort and convenience. The railroad com- requiring the railroad company to provide pany had provided a smoker for members of equal but separate accommodations for the the white race, and, following the mandate white and colored races, a company may of the statute, had likewise provided a smok- make reasonable regulations as to the time ing compartment for members of the colored and manner of designating the separate comrace. The conductor in charge of the train | partments of the races, and, where there was without authority to set aside the provisions of the statute and deprive a member of either race of the comforts and conveniences to which he was entitled. The trial court did not err in refusing such requested instruction.

By the court's instruction No. 5, the jury were told that, under the statutes of this state, it is a misdemeanor for a negro to ride in a white coach, or a white person to ride in a negro coach, and if the jury should find from the evidence that plaintiff was riding in a coach or an apartment of a coach designated, set aside and generally used for the accommodation of negro passengers, and that white persons were permitted to use the compartment so designated, then, under those

circumstances, the railway company or its officers had no right to remove the plaintiff from said car.

Instruction No. 6 instructed the jury that if the plaintiff was riding in a separate railway coach which had been duly designated as a railway coach in which negro passengers were carried, and that plaintiff was conducting himself in a civil manner, and if the jury found that the plaintiff was wrongfully ejected or removed from a coach in which he was permitted to ride, then the jury should find for the plaintiff in such amount as he had shown he was damaged by reason of the unlawful or wrongful ejectment.

Instruction No. 7 told the jury that, if it found from the evidence that the railway company failed to furnish accommodations as described in the court's instructions, their verdict should be for the plaintiff in such amount as he had shown himself entitled to. By instruction No. 8, the jury was told that, before the plaintiff could recover, he must establish: First, his right to ride in the compartment of the coach in which he was at the time of the wrongful ejectment therefrom by the defendant's conductor; second, the unlawful ejection from said compartment by said conductor as agent of the defendant railway; and, third, that as a direct result thereof, he suffered damages therefrom, and if the plaintiff failed to establish any one of these facts by a fair preponderance of the evidence, their verdict should be for the defendant.

In our opinion, these instructions fairly state the law applicable to the facts, and the court did not err in giving the same to the jury.

were more colored passengers than the end of the smoker set apart for them would accommodate, the conductor could order white passengers to take seats in a pullman coach in the rear, and, if a white passenger in a smoker refused to change his seat, could use such force as was necessary to eject him from the smoker and compel him to go to the coach designated for white passengers. This case hinged upon certain rules of the company whereby, under certain circumstances the conductor was authorized to seat passengers in the Pullman, and it was in compliance with these rules that the conductor directed the passengers to go to the Pullman. In that case the passenger was not be

ing deprived of equal accommodations.

In the case at bar, no rules of the company were shown, and in our opinion neither the company nor conductor could by rule, or otherwise, deprive the plaintiff of the ac commodations provided for him by the stat

ute.

The plaintiff in error relies upon the case of Stratford v. Midland Valley R. Co., 36 Okl 127, 128 Pac. 98, and insists that upon the authority of that case a recovery cannot be had. With this we cannot agree. In that case the plaintiff violated the statutes, in that he refused to ride in the negro compartment, and the conductor ejected him from the train, and filed a criminal complaint against him for violating the separate coach law, and in an action against the railroad company for malicious prosecution the court held that the company was relieved of liability by the provisions of the statute. In the case at bar, the plaintiff was where he had a right to be. If the law was violated, it was by the white passengers who were riding in the negro compartment and the conductor who permitted them to ride there.

It is only where the passenger is not entitled to ride in a compartment from which he is ejected that the conductor is authorized to remove him, and it is only for a lawful removal of a passenger that the conductor and company are not held liable for damages.

The jury found for the plaintiff, and, as the evidence reasonably tends to support the verdict, the judgment of the trial court will not be disturbed, but is affirmed.

JOHNSON, KANE, MCNEILL, MILLER, and KENNAMER, JJ., concur.

(209 P.)

NEARY et al. v. ETENBURN et al.
(No. 11836.)

(Supreme Court of Oklahoma. July 11, 1922.
Rehearing Denied Sept. 26, 1922. Second
Petition for Rehearing Denied Oct. 24, 1922.)

(Syllabus by the Court.)

I. Fraud 64(1)-Evidence held to make a case for jury.

Evidence examined, and held the court did not err in overruling the demurrer to the evidence nor in failing to instruct the jury to return a verdict for the defendant.

done, and Phillips then sold the Arkansas land, and plaintiff was completely defrauded out of her land.

On the first trial of the case the court sustained a demurrer to plaintiff's evidence, and Upon this court reversed the trial court. the second trial of the case, the case was tried to a jury, and resulted in a verdict in favor of plaintiff and against the administrator of George W. Neary, deceased, Karl Fressel, John H. Bergman, and George R. Yoakum for the sum of $3,000. From said judgment the defendants have appealed. For reversal the plaintiffs in error assign numerous assignments of error, but in brief

2. Appeal and error 1001 (1)-Finding by jury, supported by competent evidence, noting the case they rely upon two propositions: disturbed on appeal in absence of prejudicial

error of law.

In a civil action, triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial error of law is shown in the instruction of the court, the verdict and finding of the jury will not be disturbed on appeal.

Appeal from District Court, Oklahoma County; James I. Phelps, Judge.

Action by Sarah Etenburn and others against E. R. Neary, administrator of the estate of George W. Neary, deceased, and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

First, they contend there is no evidence to support the judgment of the court, and the court erred in overruling the demurrer of defendants to the evidence of plaintiff, and in refusing to instruct the jury to return a verdict for the defendants.

[1, 2] Plaintiffs in error first contend that there is no evidence in the record regarding the false representations made by Phillips regarding the value of the Arkansas land, and the evidence is not sufficient to bring the case within the rule announced in the case of Wingate v. Render, 58 Okl. 656, 160 Pac. 614. It is also contended that the representations made regarding the value were not such representations as could be relied upon by plaintiff, and there is no evidence re John W. Scothorn and Homer N. Board-garding the falsity of any of the statements man, both of Oklahoma City, and Claude Du-made, and the further fact that the plaintiff val, of Newkirk, for plaintiffs in error. in making said trade made an independent Wm. A. Smith, of Oklahoma City, for de- investigation of the facts and circumstances. fendant in error Etenburn. We do not think the questions raised or argued are material in the case, nor was the case submitted to the jury upon that theory.

MCNEILL, J. This is the second appeal in this case, the former appeal being report- The court instructed the jury, if the deed Etenburn v. Neary et al., 77 Okl. 69, 186 fendants had entered into a conspiracy to Pac. 457. The action was commenced by cheat and defraud the plaintiff out of her Sarah Etenburn against the plaintiffs in er- land, and thereafter defraud her out of her ror and a part of the defendants in error. land, and that she never received anything The petition alleged that plaintiff was the for the same, then they should find for the owner of certain land in Oklahoma county, plaintiff. There is no contention that plainand the defendants entered into a conspir- tiff ever received anything for her land. acy to cheat and defraud the plaintiff out The evidence of the plaintiff was that she of her land, and by false and fraudulent rep- was a widow, with four small, children, and resentations induced plaintiff to trade her with but very little business experience, and land for certain land in Arkansas, represent- she had told some of these defendants that ing that the land in Arkansas was worth fact, and would rely upon their judgment. $8,000 and incumbered by a mortgage in the It is not denied that Phillips defrauded sum of $2,000, which was not due for three plaintiff out of her property. The only quesyears, and the interest on the mortgage was tion for consideration is whether there is paid up, and nothing would be due for about any evidence to connect the defendants with one year. That plaintiff made an exchange the deal that would make them liable. The of her land for the land in Arkansas, and defendants Bergman and Yoakum were took possession of the land at once, and agents of the plaintiff, and engaged in the about 12 days thereafter suit was filed real estate business, and plaintiff testified against her to foreclose the mortgage on ac- they advised the plaintiff they had a concount of default in the interest. She was tract with Phillips which required him to induced by Phillips to redeed the land to deal with her fairly and squarely. The dehim, and he was to have her land in this fendants Neary and Fresell accepted the county reconveyed to her, which was not deed from plaintiff, paying Phillips about

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes