1. Plaintiff undertook to cross the back yard of the city hall while lawfully on the premises, as a legislator, at night. He strayed from the path leading directly from the back door to an outhouse, fell into a hatchway, and was injured. It appeared that the defendant had been negligent in not providing the usual light for the yard, and had taken no precautions to warn persons going into the yard, and provided no means to prevent persons from falling into said hatchway. Held, that the defendant was liable. Held, further, that if a person who has been injured through the negligence of defendant, while committing a trespass, shows that he did not know he was trespassing, or that the trespass was purely technical, and only such as he might reasonably suppose defendant would permit without objection, recovery will not be prevented by reason of such trespass.

2. The trial judge may refuse to grant a nonsuit unless he can assume as true all facts which could properly be found by a jury from the evidence, and then, after giving the plaintiff the benefit of every fair and legitimate inference and intendment which can arise from the evidence, say that the plaintiff has still failed to prove his case.

3. Exceptions to a charge given by the court to the jury, to avail in an appellate court, in a case where any portion of the charge is correct, should be strictly confined to the objectionable matter, and the judge's attention called thereto at the time of the delivery of the charge. The case of People v. Berlin, 36 Pac. 199, 10 Utah, 39, so far as it is in conflict herewith, is disapproved.

(Syllabus by the Court.)

Appeal from district court, Salt Lake county; S. A. Merritt, Judge.

Action by William Lowe against Salt Lake City. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

E. D. Hoge, for appellant. Miner & Hiles and Twomey & Twomey, for respondent.

BARTCH, J. This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff because of the negligence of the defendant. It is admitted in the record that the defendant rented a portion of the city hall to the legislature, as a legislative chamber, for the purpose of holding its session in 1889 therein, and received rent for the same, and that the legislature was rightfully there. The material facts shown by the evidence are, in substance, that the defendant was the owner and occupant of the premises in question, at the time in question; that the plaintiff was a member of the legislature, and was rightfully on the premises, attending a session thereof, on the night of the 10th of March, 1890, when the accident happened; that there was an outhouse in the rear of the premises, back of the city jail; that said outhouse, at the time of the accident, was

in a very filthy condition, unfit for use, and was locked up, and the key kept in some office in said hall, but the plaintiff did not look for it; that plank steps led from the hallway of the city hall building to the ground in the jail yard; that there was a light in the hallway, but none in the jail yard, although it was the duty of the city jailer to light one on the northwest corner of the jail, and because of his failure to do so it was dark in said yard; that the hatchway was 10 to 14 feet west of said steps, was connected with the building, was about 5 feet deep, 4 feet wide, and extended south from the main building about 12 feet, having capstones on top of the edges, which were on a level with the ground, and was entirely unprotected by railing, cover, or otherwise; that on the night in question it was dark, and the plaintiff had occasion to go into said yard to urinate; that he went out by said steps, turned west, fell into said hatchway, and was seriously injured. There is no evidence to show that the defendant notified the plaintiff of the existence of the hatchway, or that the plaintiff knew of its existence before the accident. The jury returned a verdict in favor of the plaintiff in the sum of $500. A motion for a new trial having been overruled, and judgment on the verdict entered, the defendant appealed from both the order overruling its motion for a new trial and from the judgment.

Counsel for the appellant, in their brief, concede that the respondent had the right to pass from the city hall building into the rear yard, but limit said right to a path leading from the hall to the outhouse, and insist that when he turned away from the path he became a trespasser, and therefore could not recover. There is, however, nothing in the pleadings or evidence which shows such a limitation of the respondent's right to use said yard. It is admitted that the legislature was rightfully holding its sessions in the building, having rented it for that purpose from the defendant, and the respondent was a member of the legislature, and in the performance of his public duties, at the time of the accident. The yard was appurtenant to the hall, and, in the absence of any restrictions, the members of the legislature had a right to make a proper use thereof; and, from the circumstances surrounding this case, we cannot say that the respondent was attempting to make an unlawful use of it, and was a trespasser. Nor can we say that he was at the time of the accident where he had no legal right to be, as is contended by counsel. The authorities cited in support of this contention are not applicable to the facts and circumstances of this case. We think that the leaving of the hatchway in an unguarded and unprotected condition by the defendant, as shown by the evidence, and the failure to have any light in the yard by which its condition could be seen, was such negligence as rendered it lia

ble for any injury which was caused thereby. While the owner or occupant of premises is not an insurer of them against accidents from their condition, still, so far as he is able to do so by the exercise of ordinary care and vigilance, he is bound to keep them in such a condition that persons who are rightfully using them will not be injured by any insecurity or insufficiency for the purpose to which they are put. If such owner or occupant fails in his duty in these regards, he becomes a wrongdoer, and as such will be liable for any injury which results as a natural consequence from his misconduct, and which might reasonably have been anticipated as likely to occur as a natural and probable result thereof. 2 Shear. & R. Neg. $702; Ryder v. Kinsey (Minn.) 64 N. W. 94; Ransier v. Railway Co., 32 Minn. 331, 20 N. W. 332; Mullen v. St. John, 57 N. Y. 567. So the law is well settled that the owner or occupant of premises is liable in damages to persons coming thereon, using due care, at his invitation or inducement, express or implied, on business to be transacted with or permitted by him, for an injury caused by the unsafe condition of such premises, known to him, and not to them, and which, through negligence, he suffered to exist without notice to them. Bennett v. Railroad Co., 102 U. S. 577; Carleton v. Steel Co., 99 Mass. 216; Davis v. Congregational Soc., 129 Mass. 367; Beck v. Carter, 68 N. Y. 283; Nickerson v. Tirrell, 127 Mass. 236; Hayward v. Merrill, 94 Ill. 349. In the case at bar the defendant, by invitation, and leasing of the premises, induced the respondent to come upon them for a legitimate purpose, knowing their dangerous condition, without giving him notice thereof. It was therefore liable to him for the injury, in the absence of contributory negligence on his part.

Even if the contention of counsel for the appellant that at the time the respondent received the injury he was a trespasser, and xas where he had no legal right to be, were conceded, that fact alone would not defeat his action, as matter of law, especially if he was not guilty of negligence which contributed to the injury. If a person who has been injured, through the negligence of the defendant, while committing a trespass, shows that he did not know that he was trespassing, or that the trespass was purely technical, and only such as he might reasonably suppose the defendant would permit without objection, and that in fact it did not cause any appreciable annoyance or injury to the defendant, then his recovery will not be prevented by reason of such trespass. Nor although it may be a circumstance tending to show want of proper care, will it, in itself, be sufficient to convict him of contributory negligence. In such case, after the presence of such person is known to the defendant, he is bound to exercise ordinary care to avoid injury to him. Shear. & R. Neg. §§ 97, 98; Marble v. Ross, 124 Mass. 44;

Daley v. Railroad Co., 26 Conn. 591; Brown v. Lynn, 31 Pa. St. 510.

We think the error assigned on the admission of evidence is not well taken. Nor do we think the court erred in refusing to grant the motion for a nonsuit. It is clear that the evidence of the plaintiff was of such a character that the court could not say that the defendant was not guilty of negligence which caused the injury. When a motion for nonsuit is interposed, it becomes the duty of the court to assume as true all facts which could be properly found by a jury from the evidence, and then, after giving the plaintiff the benefit of every fair and legitimate inference and intendment which can arise from the evidence, in order that the court may grant the motion it must appear that the plaintiff still has failed to prove his case. Before the question of negligence becomes one of law, for the court, the facts shown by the evidence must be such that all reasonable men must draw the same conclusions from them. If the facts proven are such that reasonable men may fairly differ as to whether or not there was negligence, the question is one for the jury to consider. Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Railroad Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569; Wines v. Railway Co., 9 Utah, 228, 33 Pac. 1042; Wallace v. Railroad Co. (Or.) 37 Pac. 477; Smith v. Railway Co., 9 Utah, 141, 33 Pac. 626. In this case the admission in the pleadings, and the testimony of the plaintiff, tend to establish the facts above set forth. Assuming them to be true, in accordance with the principles stated, they clearly present such a question of negligence that reasonable men might differ in their conclusions drawn from them. The determination of the question was therefore one for the jury, and the court properly denied the motion for a nonsuit.

The remaining error assigned relates to the instructions of the court to the jury. No exception was taken to the charge at the time of its rendition, nor is there any shown by the transcript. The first time that any exception appears is in the abstract, and then only to large portions of the charge, without reference to the particular matter which is the subject of complaint. Under these circumstances the error here assigned presents no question for review on appeal. An exception, to be of avail in an appellate court, should, in a case where any portion of the charge is correct, be strictly confined to the objectionable matter, and the judge's attention called thereto, at the time of the delivery of the charge, so that an opportunity may be afforded him to make a correction. The writer of this opinion cited numerous authorities on this subject in his dissenting opinion in the case of People v. Berlin, 10 Utah, 39, 41, 36 Pac. 199; and on this question the case of People v. Hart, 10 Utah, 204, 37 Pac. 330, wherein said dissenting opinion was referred to and adopted as a correct

statement of the law on this point, is reaffirmed. The majority opinion in People v. Berlin, so far as it is in conflict herein, is disapproved. See, also, Marks v. Tompkins, 7 Utah, 425, 27 Pac. 6.

We think there is no reversible error in the record of this case. The judgment is affirmed.

ZANE, C. J., concurs.

CRIPPEN et al. v. FREELAND et al. (No. 8,102.)

(Supreme Court of Kansas. May 9, 1896.) APPEAL-NECESSARY PARTIES.

In an action against a mortgagor and first mortgagees to foreclose a second mortgage, the second mortgagee was a necessary party to an appeal by the first mortgagees from a judgment on a cross petition of the mortga gors against them declaring their mortgage extinguished.

Error from district court, Pawnee county; S. W. Vandivert, Judge.

Action by Kate E. Rand against N. B. Freeland and Alice A. Freeland, his wife, and first mortgagees, to foreclose a second mortgage. From a judgment on the answer and cross complaint of the mortgagors declaring the first mortgage extinguished, the first mortgagees, H. J. and H. F. Crippen, bring error. Dismissed.

Beardsley, Gregory & Flannelly, for plaintiffs in error. F. Dumont Smith and J. W. Rose, for defendants in error.

PER CURIAM. Kate E. Rand brought an action to foreclose a mortgage for $600, executed by the Freelands upon real property in Larned. Some of the parties who claimed an interest in the property were made defendants. The mortgage was second and subject to another mortgage given by the Freelands at the same time to Crippen, Lawrence & Co. for $6,000. In an answer and cross petition the Freelands alleged that the making of the two mortgages was a single transaction, and both were given for the same loan, and that Kate E. Rand was not an innocent purchaser of the $600 note. They further alleged that the mortgagees had agreed to accept partial payments of the mortgage debt from time to time, and in pursuance of such agreement had accepted a partial payment of $900; that the Freelands had negotiated a sale of a portion of the mortgaged property, intending, when the sale was consummated, to apply the proceeds of the sale, together with any other amount found necessary, to make full payment of the notes and mortgages, but that Crippen, Lawrence & Co. refused to release the property, or to accept the offer so made, and that the lien of the mortgages had thereby become extinguished. There was a further averment that | Henry J. Crippen and H. Francis Crippen constituted the firm of Crippen, Lawrence &

Co., who still owned the $6,000 mortgage. They were made defendants, and service of the summons was obtained upon each of them. A reply was filed by Kate E. Rand, but the record does not show that the Crippens filed any reply. On the first day of the succeeding term of court judgment was rendered, without the introduction of evidence, upon the answer and cross petition, in which it was adjudged that the $6,000 mortgage to Crippen, Lawrence & Co. had been extinguished, and should be canceled and satisfied. No appearance was made for the Crippens or Crippen, Lawrence & Co. until about a week later, when a motion or petition to vacate the judgment upon various grounds was filed. This petition was overruled, and subsequently another motion was made to vacate the judgment for mistake, neglect, and omission of the clerk, and irregularity in obtaining the judgment. Testimony was offered tending to show that a reply to the answer of the Freelands had been sent to and received by the clerk of the court, but for some reason it was misplaced, and was not brought to the attention of the court until after the judgment had been rendered. The proof also tended to show that the only member of the firm of Crippen, Lawrence & Co. upon whom service had been obtained was H. J. Crippen, and that two members of the firm, J. J. Crippen and H. J. Putnam, had never been served; and, further, that the $6,000 note had been sold and transferred shortly after it was obtained, and that the firm of Crippen, Lawrence & Co., or any member thereof, had no interest or ownership in the same when the action was brought. Another ground for vacating the judgment is that no such tender was pleaded or shown as would furnish a basis for equitable relief. The first petition to vacate was denied, as was also the later motion, filed for the same purpose. The motion was overruled upon the ground that it was not shown that the Crippens had any interest in the subject of complaint. Complaint is made of these rulings by the Crippens, but the only parties which they bring into this court are the Freelands. Kate E. Rand, who was the plaintiff below, is a necessary party to a proper disposition of the case. By the judgment that was rendered her mortgage becomes a first lien upon the premises, and a reversal will necessarily affect her. The proof shows that the court has found that the plaintiffs in error are not the owners of the $6,000 mortgage, and, that being true, the judgment that was rendered will not affect the real owners, nor operate to cancel the mortgage. The only interest which the Crippens have in this controversy, and the only amount involved, are the costs, which are insufficient to vest the court with jurisdiction to review the appeal. For this reason, as well as the absence of Kate E. Rand, a necessary party, the proceeding must be dismissed. The proceeding will be dismissed.

Error from district court, Pawnee county; S. W. Vandivert, Judge.

Action by Kate E. Rand against N. B. Freeland and Alice A. Freeland, his wife, and first mortgagees, to foreclose a second mortgage. From a judgment on the answer and cross complaint of the mortgagors declaring the first mortgage extinguished, the first mortgagees, H. J. and H. F. Crippen, bring error. Dismissed.

Beardsley, Gregory & Flannelly, for plaintiffs in error. F. Dumont Smith and J. Ŵ. Rose, for defendants in error.

PER CURIAM. This proceeding is based upon a transcript of the record of the district court. The certificate attached to the record fails to show that it is a complete transcript of the proceedings in the district court. This is essential to a review. The proceeding will be dismissed.

ABBEY v. MCPHERSON.

(Supreme Court of Kansas. May 9, 1896.) Error from court of appeals, Northern department, Eastern division.

Action by Robert McPherson against Elmer Abbey. From a judgment of the court of appeals (41 Pac. 978) affirming a judgment for plaintiff, defendant brings error. Affirmed.

Albert Perry and F. H. Drenning, for plaintiff in error. S. L. Ryan and W. I. Stuart, for defendant in error.

PER CURIAM. The law applicable to the facts in this case is correctly stated in the opinion of the court of appeals, reported in 1 Kan. App. 177, 41 Pac. 978.

HARTWELL v. FIRST NAT. BANK OF CONCORDIA. (No. 8,403.) PULSIFER et al. v. SAME. (No. 8,404.) (Supreme Court of Kansas. May 9, 1896.) APPEAL NECESSARY PARTIES - RECORD REFERENCE TO RECORD IN ANOTHER PROCEEDING.

1. On appeal from a judgment against A., on a note, a defendant who claimed on the trial that he transferred the note to plaintiff merely as collateral security, which transfer A. alleged to have been without consideration, is a necessary party.

2. A case-made in one proceeding in the supreme court cannot be made a part of the record in another proceeding by a mere reference. Parkhurst y. Bank, 39 Pac. 1027, 55 Kan. 100, followed.

Error from district court, Cloud county; F. W. Sturges, Judge.

Actions by the First National Bank of Concordia against John G. Hartwell and against Pulsifer & Alexander. From a judgment for plaintiff in both cases, defendants bring error. Dismissed.

Pulsifer & Alexander, for plaintiffs in error. Theo. Laing, for defendant in error.

PER CURIAM. These cases must be dismissed for want of necessary parties. Under the pleadings, as well as under the state

ment of the case-made by Mr. Alexander, Thomas Wrong appears to be a necessary party in this court; it being claimed in his answer that the notes sued on were transferred by him to the bank only as collateral security for his indebtedness to the bank, and it being claimed by the plaintiff in error that the transfer by Wrong to the bank was merely colorable, and without consideration. No. 8,404 would have to be dismissed for another reason: No case-made is attached to the petition in error, but an attempt is made to use the case in 8,403 merely by reference, which, it has been held, cannot be done. Parkhurst v. Bank, 55 Kan. 100, 39 Pac. 1027. Dismissed.

1. G. held a mortgage on city lots owned by R., and which were numbered 8 and 9. Lot 8 was improved, and worth nearly as much as the mortgage debt. R. began the construction of a house on lot 9, but had not paid for the lumber and material used therein; and, desiring to use that lot as security to obtain a further loan, he applied to G. to release the mortgage on lot 8 for that purpose, and she directed her agent to examine lot 9, and, if he found it to be good security for the mortgage debt, to discharge the mortgage on lot 8. Upon examination, the agent deemed lot 9 to be sufficient security, and executed a release of the mortgage upon lot 8, upon the margin of the record, to which he signed his principal's name. who had agreed with R. to loan him money on the security of lot 8 if the mortgage was released, upon being informed that the release had been executed, made the loan, taking a mortgage upon the lot. Some months afterwards, and in a foreclosure proceeding, G. de nied that her agent was duly authorized to execute the release. Held, under the circumstances, that G. is estopped from questioning the authority of her agent, or from denying that the release is effectual.

B.,

2. Those who furnished lumber and material for the improvements on lot 9 had a lien claim upon the lot when the mortgage was released, which was subsequently perfected. G. had knowledge of the improvements, and that there were unsatisfied claims for the material used in making them. Under the doctrine of marshaling securities, she must be held to have made the release at a sacrifice of her own security, and not of the existing equities of those who had furnished the material and made the improvements. The lien claimants are entitled to occupy the position they would have held if no release had been made.

(Syllabus by the Court.)

Error from district court, Atchison county; Robt. M. Eaton, Judge.

Action by Harriet A. Gore against Frank Royse, Nannie A. Royse, Martin Baker, and G. C. Hixon & Co. to foreclose a mortgage. From the judgment rendered, plaintiff and defendants G. C. Hixon & Co. bring error. Modified.

Chas. J. Conlon, for plaintiff. J. T. Allensworth and W. L. Bailey, for defendants G.

JOHNSTON, J. In 1885, Frank Royse borrowed from Harriet A. Gore the sum of $2,500, and, to secure the payment of the same, he and his wife executed to her a mortgage upon lots 8 and 9, in block 96, in the city of Atchison. There were a house and other improvements on lot 8, but lot 9 was vacant and unimproved until 1889. In March, 1889, Royse began the erection of a house on lot 9, and obtained material for that purpose of the value of $776.72, from G. C. Hixon & Co. Royse did not pay for the material when it was purchased, and had not sufficient funds to complete the house; and in July, 1889, he undertook to borrow a further sum of money. He notified Harriet A. Gore, who held the mortgage on both lots, that he had erected a new two-story house on lot 9, which he claimed was good security for the amount owing to her; and he requested her to release lot 8 from the lien of her mortgage, so that he might use it as security to obtain a further loan. She sent her son, Charles J. Gore, who attended to business of this character for her, with authority, oral and by letter, to release lot 8 from the lien of the mortgage, if, in his judgment, he found lot 9, with the improvements thereon, was sufficient security for her debt. In the meantime, Royse had spoken to J. H. Talbott to obtain a loan of $1,800 on lot 8, providing it could be released from the Gore mortgage; and Talbott, learning that Martin Baker had money to loan, suggested a loan upon this property, and Baker told Talbott that, if the lot was released from the lien of the Gore mortgage, Royse could obtain the money, by securing him with a mortgage on lot 8. On July 10, 1889, Charles J. Gore examined the house erected on lot 9; and, upon determining it to be sufficient security, he went to the office of the register of deeds, and, on the margin of the record where the Gore mortgage was recorded, the following release was written, to which he signed his mother's name: "This mortgage upon lot S, block 96, Old Atchison, herein described, is released, so as to make a mortgage this day executed by Frank Royce and wife to Martin Baker, for the sum of $1,800, the first and prior lien thereon; the mortgage to H. A. Gore remaining a second mortgage lien upon said lot. H. A. Gore. July 10, 1889. Attest: D. J. Clifford, per J. I. N., Deputy." Talbott at once reported to Martin Baker that the Gore mortgage had been released or postponed, and he at once paid Royse the sum of $1,800, who, with his wife, executed and delivered to him a first mortgage upon lot 8, which was duly recorded. The interest due upon the Gore loan was paid when due until 1889, after which default was made; and Harriet A. Gore brought this action to recover the amount of her debt, and also to foreclose

originally included in her mortgage. Martin Baker, who held the mortgage on lot 8, was made a party defendant; also G. C. Hixon & Co., who had furnished material for the house erected on lot 9. Baker answered, claiming a first lien upon lot 8, and G. C. Hixon & Co. set up their claim, and asked that it be declared a first lien upon lot 9.

In addition to the facts stated, the trial court found from the testimony that Harriet A. Gore never signed and acknowledged any instrument in writing authorizing Charles J. Gore to release lot 8 from the lien of her mortgage; that, after he had executed the release, he reported to his mother what he had done in the matter; and that she made no objection to the release further than to say that she thought her security was diminished. She took no steps to rescind or set aside the release, or to question it, until the foreclosure proceeding was begun, on June 25, 1890. It was found that the lumber and material were furnished by Hixon & Co. between the 26th of March, 1889, and the 12th of October of the same year, and that the building was finally completed on November 10, 1889. It was further found that, in due time, G. C. Hixon & Co. filed a statement for a lien in due form, the amount of the claim being $776.72. There was a finding that on March 26, 1889, lot 8, with the house upon it, was of the value of $2,500. Lot 9, at that time being vacant, was of the value of $1,000. On July 10, 1889, when the release was executed, lot 8 was of the value of $2,500, and lot 9 of the value of $2,500. Judgment was given in favor of Harriet A. Gore for the amount of her claim, and it was decreed to be a first lien upon lot 9, and a second lien upon lot 8, while the judgment awarded Martin Baker was decreed to be a first lien upon lot 8. It was further held that G. C. Hixon & Co. were entitled to a second lien upon lot 9. Harriet A. Gore complains of the ruling making her lien upon lot 8 inferior to that of Martin Baker, while G. C. Hixon & Co. complain of the ruling making the lien of their judgment inferior and second to that of the Gore judgment. A case made was prepared and served in behalf of both of the complaining parties, and separate petitions in error, under different titles and numbers, have been filed by them in this court. There was no necessity for separate titles and numbers, as there is in fact but a single proceeding here, and the rulings will be reviewed in a single opinion.

The point of contention between Gore and Baker is as to the effect of the release. A mortgage may be released by a marginal entry on the record, duly signed; but it is contended that Charles J. Gore was not the agent of Harriet A. Gore in executing the release, and, further, that it cannot be released by an agent unless a written appointment, duly signed and acknowledged by the