4 and 5, and from the plaintiff's evidence this fence remained upon said line from 3870 +0 1912, at which time the appellees, who had in 1910 acquired an adjoining tract, moved the fence, so as to place it upon the center line of section 6, which was some 93 feet west of the fence line, and what appears under the plaintiff's testimony to have been the dividing line under the survey of "Money's Deadening." Some years after the survey of the "Money's Deadening" a partition was had in the chancery court between the different heirs of T. Money, and the respective parties went into separate possessions; the one who constitutes one of the grantors in Neill's chain of title occupying upon the east side of the fence up to the fence, and Mrs. Moore and her ancestors occupying on the west side up to the fence. All of the land on the west side of the fence was not in actual cultivation, but the fence remained on said line until 1911, when Neill went into possession of his tract of land. The fence not being exactly straight, Neill desired to place the fence straight and upon the line between him and Mrs. Moore, and caused a surveyor to make a survey, when it was discovered that the quarter section line dividing section 6 was some distance to the west of the feuce. Neill there upon went to the husband of Mrs. Moore and desired him to join in a survey, so as to determine the true line, which Moore refused to do. Thereupon Neill moved the fence to the quarter section line dividing section 6 that is, dividing the southwest quarter of section 6 from the southeast quarter-and proceeded to cultivate the strip between the quarter section line and the fence row as it formerly existed. Whereupon the plaintiff brought this suit. should have been a peremptory instruction, on the proof in this record, for the plaintiff, for the possession of the strip of land, and for rent to the amount of $50 per annum. There being no proof to show that the land rent was worth less than $50 per annum, the judgment will be reversed, and judgment entered here for the plaintiff for the strip in question, and $50 per annum for the years 1912, 1913, 1914, 1915, 1916, and 1917. Reversed, and judgment here. (117 Miss. 809) CARNEY V. SHARP. (No. 20201.) MORTGAGES 372(5) — SALE UNDER TRUST When sale was made under a trust deed providing that in event of sale the trustee would convey such title only as was vested in him, and the matter was terminated so far as the bene the beneficiary was repaid the money due him, ficiary was concerned; and where he had no connection with and derived no benefit from a the trust deed sale, he would not be liable for subsequent sale to plaintiff by the purchaser at any part of the consideration paid by plaintiff, although title was not good in plaintiff because of an erroneous description in the trust deed, and the sale was held void for failure to advertise the property as required by the trust deed. Appeal from Chancery Court, Lauderdale County; G. C. Tann, Chancellor. Suit by W. J. Sharp against G. H. Carney and others. From a decree against him, defendant named appeals. Reversed, and the decree entered for appellant. W. C. Sams, of Meridian, for appellant. F. V. Braham, of Meridian, for appellee. HOLDEN, J. G. H. Carney appeals from a decree against him for $450, based upon the following facts presented in the chancery court: There is no dispute of the fact that the lands were used by the respective parties up to the fence row as it formerly stood; but the appellees contend that there was no sufficient proof of claim of adverse ownership on the part of Mrs. Moore and her chain E. C. Breaux, in consideration of $150, of title, that the taxes had been assessed to executed a deed of trust to W. F. Collins, Mrs. Moore to the quarter section line, and trustee, upon certain real estate to secure that the strip in controversy had been assess- the payment of the $150 to the appellant, G. ed to and paid on by Neill and his grantors H. Carney. The deed of trust was in the during the entire period of time. There was regular form, and provided that in event of considerable evidence taken by the plaintiff sale the trustee would convey such title only in the suit, which we think established with- as was vested in him by virtue of said deed out controversy the fact of possession and of trust. Breaux having failed to pay the claim and recognition of ownership in Mrs. $150 to appellant, Carney, when due, the Moore as to her side of the fence, and as to trustee, Collins, proceeded under said deed Neill's grantors on their side of the fence, of trust to sell the property, and A. U. Flanfor more than 10 years; that is to say, from nigan purchased it at the trustee's sale, and 1910 back to and including at least as far the trustee, Collins, conveyed the property to back as the year 1888. It appears in evi- Flannigan by trustee's deed. About two dence that, after Neill took possession of this months after Flannigan purchased the proptract of land, Mrs. Moore was compelled to erty at the trustee's sale he conveyed it by abate the rent of her land on account of the warranty deed to the appellee, W. J. Sharp, loss of the strip to the extent of $50 per in consideration of $450. A few weeks afterannum, and that this was a reasonable rental wards it was discovered that the title to the of the strip in controversy from the 1st of property was not good in Sharp because of January, 1912, to date. We think there an erroneous description in the deed of trust from Breaux to Collins, trustee. It also ap pears that the sale by Collins, trustee, to Flannigan was held to be void by the chancellor on account of failure to advertise the property as provided by the terms of the deed of trust. The appellee, Sharp, then filed this suit in the chancery court against appellant, Carney, and others to recover the $450 paid by him to Flannigan for the property, and for which Flannigan had executed to appellee, Sharp, a warranty deed; Flannigan, as we have already said, having purchased the property at the trustee's sale from Collins, trustee. The chancellor seems to have held in his decree that a fraud was practiced upon Sharp by Flannigan and Collins, and that since Carney happened to be the beneficiary in the original deed of trust, that this fact "made possible the fraud on Sharp, whether intentional or not," and that Collins was acting as the agent of Carney. However, the record shows conclusively that Collins was not the agent of Carney in the sale by Flannigan to Sharp, nor was Collins connected with appellant, Carney, in any manner, except as trustee in the original deed of trust; in other words, appellant, Carney, The lower court granted a decree against was not concerned or in any manner conthe appellant, Carney, on the ground, it nected with the subsequent transactions beseems, that Sharp, appellee, should recover tween Collins, Flannigan, and Sharp, and is his money paid out to Flannigan, and that not, therefore, liable to the appellee, Sharp, as Carney was the original beneficiary in the in any amount. Of course, appellee, Sharp, deed of trust, that he, too, should be held has his remedy, and it appears, in fact, that liable for the $450 paid by appellee, Sharp, he has a decree against Flannigan and Colto Flannigan, the subsequent purchaser at lins for the amount paid out by him in conthe trustee's sale. It does not appear, how-sideration of the execution of the warranty ever, that appellant, Carney, received any part of the $450 paid by appellee, Sharp, nor does this record disclose that Carney had any connection whatever with the transaction between Flannigan and Sharp; in fact, it does not appear anywhere that Carney had any connection with appellee, Sharp, at any time with reference to the sale of the property. The record shows that appellant, Carney, was appealed to, after it was discovered that the deed of trust contained a void description, and he refused to have anything to do with the subsequent transactions between any of the parties. It appears simply and clear to us that no obligatory or contractual relations ever existed between appellant, Carney, and appellee, Sharp, either express or implied. Appellant, Carney, was merely the cestui que trust in the deed of trust given to secure the payment of the $150 advanced by him to Breaux, and after the deed of trust was foreclosed by the trustee, Collins, and the beneficiary, Carney, was repaid the money due him, the whole matter was closed and terminated so far as the beneficiary, Carney, was concerned; therefore there can be no rule or reason for holding appellant, Carney, in the sum of $450, the amount paid by appellee, Sharp, to Flannigan, who was a subsequent purchaser at the trustee's sale made by Collins, trustee, in foreclosing the deed of trust executed in the first instance for the benefit of the appellant Carney. deed to him by Flannigan. The decree of the court below is reversed, and decree entered here for the appellant Carney. (117 Miss. 814) TEN MILE LUMBER CO. v. GARNER.* (No. 20179.) (Supreme Court of Mississippi, Division B. June 3, 1918.) 1. MASTER AND SERVANT. 128-INJURY TO SERVANT-TOOLS AND APPLIANCES-WRONGFUL USE. Where one of employés, attempting to straighten a cant hook by placing it on a defective steel maul and striking it with an axe, is injured by a piece of steel flying from maul, maul were improperly used; neither being inemployer is not liable, where both axe and tended for such use. 2. MASTER AND SERVANT 125(1)—INJURY TO SERVANT-DEFECTIVE TOOLS AND APPLIANCES KNOWLEDGE OF MASTER. Where an employé is injured by steel flying from a defective steel maul while attempting to straighten a cant hook by placing it on the maul and striking it with an axe, both axe and maul being improperly used for such purpose, the employer is not negligent in not having cant hook properly repaired, where it had no knowledge that it had been bent. Appeal from Circuit Court, Stone County; J. H. Neville, Judge. Action by Ester Garner against the Ten Mile Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause dismissed. Tally & Mayson, of Hattiesburg, for appellant. Mize & Mize and J. C. Ross, all of Gulfport, for appellee. There was no express or implied obligation on the part of the appellant, Carney, to refund or make good to appellee, Sharp, the amount paid by Sharp to Flannigan for the warranty deed to the property. Carney is ETHRIDGE, J. Ester Garner, a minor of not shown by this record to have had any 19 years of age, was employed by the Ten connection with, nor benefit from, this sub-Mile Lumber Company, a corporation, and sequent sale, by agency, or otherwise; and was engaged with a track and bridge crew of no fraud whatever appears, in fact or in law, the said company with his father, who was so far as appellant, Carney, is concerned. also an employé of the company. In the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The judgment is reversed, and the cause dismissed. (117- Miss. 825) BARRETT v. PICKETT. (No. 20007.) (Supreme Court of Mississippi, Division B. June 3, 1918.) course of the work on a bridge on one of tool under these circumstances, was not enthe lines of the company a peavey, or cant titled to recover from the master, and the hook, was bent to an extent that it needed peremptory instruction should have been straightening or repairing. Some of the em- given. ployés of the company and the appellee undertook to repair the cant hook by laying the hook upon a steel maul and striking the hook, to straighten it, with an axe. While this was being done, the appellee held the cant hook in position, and a piece of the steel from the maul struck appellee in the eye, inflicting a permanent injury, for which the appellee sued the appellant and recovered Under Code 1906, § 92 (Hemingway's Code, judgment. It appears in the evidence that the steel maul was used for the purpose of court, if a bond be defective, a new one may be § 74), providing that in appeal to the circuit driving spikes in railroad cross-ties to hold given, the bond on appeal from a justice, being rails in position, and also in driving bolts to blank as to penalty, may be amended. hold the rails in position where they were 2. JUSTICES OF THE PEACE 164(5)—REVIEW -CERTIORARI. joined together and connected. The crew The justice of the peace, on appeal to the having this maul, and it having become dam-circuit court, refusing to approve the appeal aged and unfit for use for that purpose, bond and send up the record, it may be brought came to the crew of which appellee was a up by certiorari. member and borrowed a steel maul which they had, they being at the time engaged in work on a bridge. The steel maul was not used in the work in the present case as a maul, but was used to place the hook upon while it was being struck with an axe. It appears in the evidence that the company maintained a blacksmith shop for the repair of tools, and that the appellee and his witnesses testified that the proper place to repair the peavey, or cant hook, was at the blacksmith shop. The appellant requested a peremptory instruction, and assigns for error the refusal of the court below to grant this instruction. [1] It appears that the defect was not in the axe or in the cant hook, but that it was in the maul, and that the maul was not be ing used for the purpose for which it was assigned for use by the company, and that the axe was not a proper instrument to use in repairing a peavey, or cant hook. This case is governed by the case of Illinois Central R. R. Co. v. Daniels, 73 Miss. 258, 19 South. 830, where the court laid down the following rule: "An employer is not liable in damages to one of its employés where the injury resulted from putting one of the appliances supplied to a use for which it was not intended in an improper manner. 1. JUSTICES OF THE PEACE 159(12) APPEAL-AMENDING APPEAL BOND. Appeal from Circuit Court, Yazoo County; W. H. Potter, Judge. Action by W. A. Pickett against Jesse Barrett. From judgment of the circuit court, dismissing appeal from judgment of a justice of the peace for plaintiff, defendant appeals. Reversed and remanded. A. S. Coody, of Jackson, for appellant. M. B. Montgomery, of Yazoo City, for appellee. ETHRIDGE, J. W. A. Pickett sued Jesse Barrett before a justice of the peace for $200 for rent on land. Judgment was ren dered in the justice court for the plaintiff in the sum of $200 and costs. The defendant and the justice of the peace gave the attorney there desired an appeal to the circuit court, for the defendant a blank appeal bond. The attorney returned to his home, and, recollecting the amount of the judgment as being $200, wrote up the bond describing the judg the penalty of the bond blank, being under ment as being a judgment for $200, but left the impression that the penalty had to be twice the amount of the judgment and costs, and not knowing the amount of the costs, he explained to the sureties on the bond the fact, and the sureties agreed that the bond might be filled in so as to make the penalty the proper amount. The attorney thereupon sent the bond to the justice of the peace before whom the judgment was taken, with instructions to fill in or make the necessary changes in the bond to conform to the necessities of the case. The justice of the peace refused to do that, believing he had no right [2] It further appears that whatever de- to fill in the bond, and thereupon wrote out fect there was in the cant hook was caused a bond with the penalty of $450, and returnby its being bent in the course of work, and ed to the attorney of the defendant; but it does not appear that there was any notice this was received on the last day on which of this defect brought to the attention of the the bond might be filed, and said attorney master, or any neglect on the part of the lived some 20 miles from the residence of the master in having it properly repaired. The justice of the peace, and no effort was made appellant, having undertaken to repair this to secure a new bond. The justice declined See, also, Vicksburg, etc., Co. v. Vaughn, 27 South. 599; Capital City Oilworks V. Black, 70 Miss. 8, 12 South. 26; Hatter v. Railroad Co., 69 Miss. 642, 13 South. 827; Railroad Co. v. Bennett, 111 Miss. 163, 71 South. 310. missed. Fred M. Bush, of New Hebron, for appel- lant. pellee. to send up the papers, and a writ of certio- | Limited. Decree for complainant, and derari was taken from the circuit court, com- fendant appeals. Reversed, and bill dismanding the papers to be sent up. In the meantime the papers had been lost, but the justice made up duplicate copies and re-established the papers under proper proceedings, and sent the papers to the circuit court. In the circuit court the defendant applied for leave to amend the appeal bond, so as to write in the proper amount, and substitute the bond thus amended for the original bond. The court disallowed this motion, and dismissed the appeal, from which judgment appellant appeals here. [1, 2] We think the learned court below was in error in dismissing the appeal. The bond could be amended in the circuit court by filling in the proper amount under section 92 of the Code of 1906 (section 74 of Hemingway's Code), which reads as follows: "In all appeals and in proceedings of certiorari to the circuit court, the said court, on motion of the appellee or obligee, may inquire into the sufficiency of the amount of the bond, and of the security thereon, and may at any time require a new bond, or additional security, on pain of dismissal; and if any bond be defective. the principal therein may give a new one, which shall have the same effect as if given originally." This court decided in Denton v. Denton, 77 Miss. 375, 27 South. 383, that an appeal bond in a penalty less than the minimum sum required by law is not void, but may be amended under section 92, authorizing the perfecting of such bonds in the circuit court. In that case the bond was less than the $100 minimum provided by statute. In Redus v. Gamble, 85 Miss. 165, 37 South. 1010, the court held that certiorari might be resorted to, to bring up a record in a case where a bond had been filed, in that case in a proper penalty, but deemed insufficient by the justice of the peace, who refused to approve it. The case is reversed and remanded. (117 Miss. 834) GENERAL ACCIDENT, FIRE & LIFE AS- (Supreme Court of Mississippi, Division A. INSURANCE 579-FUTURE RECOVERY-MIS SYKES, J. The appellee, Cecil A. Harris, sustained an injury to his left thigh on December 24, 1913. This injury is described in the surgeon's statement of it, as a "disloca. tion and fracture of left thigh (hip joint)." At the time of this injury he had an accident policy in the appellant insurance company, which provided, among other things, that for a total disability resulting from an accident of this character the company would pay the insured at the rate of $20 a month for a period not exceeding 24 months. Under the terms and provisions of this policy this premium or amount was not due until after the final proofs of disability had been submitted to the company, and the company had had a reasonable time to investigate and pay the same. Mr. Harris during his disability was treated by a physician of his own selection, who was in no way connected with the appellant insurance company. On April 2, 1914, Mr. Harris submitted his final report of his accident under the policy. As a part of this report was a statement signed by his physician or surgeon describing his injuries as above set out. This statement of the surgeon further says that he (appellee) was able to resume part of his work on March 25th, and all of his work on April 1st. In other words, he was partially recovered on March 25th, and entirely recovered on April 1st, the day the statement was signed. This surgeon's certificate is signed, "W. H. Williams, M. D., Attending Surgeon," and dated April 1, 1914. Mr. Harris in his individual statement described his injury as "dislocated hip," and that that leg is three-fourths of an inch shorter than the other. He further states that he has done nothing but light work, which he commenced to do on March 25, 1914. Upon this final proof of disability the appellant insurance company made a settlement in full with Mr. Harris for the injury sustained by him above mentioned for the Under an accident policy providing that for amount of $60. Mr. Harris duly signed a total disability insured was to be paid at a release to this effect. After this settlement certain rate per month, but that payment was was made Mr. Harris did not improve as not due until final proof of total disability, rapidly as he had expected from the injury; where insured thought that he had practically recovered from the injury, and he and his physi- in fact, was unable to do any work, or any cian so reported to the company, which accept-appreciable amount of work, for about 2 ed the report and settled according to the claim years, and is probably permanently disabled in full, and insured signed a release to that from the injury. After the final settlement was made with the company, no further reports showing how he was getting along, which are required to be made under the terms of the policy, were made to the company. In fact, Mr. Harris, as well as the Bill by Cecil A. Harris against the General company, for some time acted as if he had Accident, Fire & Life Assurance Corporation, made a settlement in full for all his injuries effect, there could be no recovery for future consequences of the injury; the only mistake being as to the extent and duration of the insured's disability. Appeal from Chancery Court, Lawrence County; D. M. Russell, Chancellor. accepted by the company as being correct, and a settlement made with him according to his claim. In the statement of his surgeon, the nature and extent of his injuries are described as a fracture and dislocation. This the appellee certainly knew. The only mistake at all was as to the extent of the duration of his disability. with the company. Some time after he dis- disability. At the time he made the settlecovered that he was more severely injured ment he thought he had practically recovthan he thought at the time he made the ered. In this he was evidently mistaken. settlement; he was examined by other physi- There was no fraud or misrepresentations cians and an X-ray was made of his injury, whatever to him on the part of the appellant which showed a more severe injury than company. In fact, he was never examined perhaps Mr. Harris thought at the time he by a surgeon of the company. The reports made the settlement. After this examination, of himself and his attending surgeon were Mr. Harris reported the fact to the local agent of the company in his home town. Nothing further was done by him until he filed his bill of complaint in the chancery court of Lawrence county in December, 1915. In this bill he states that at the time he made the settlement he was mistaken as to the character, nature, and extent of his injury; that he had been informed by his physician that his disability would not extend beyond a period of 3 months. He asks that this release be rescinded and canceled, and that he be allowed to recover for a total disability of 24 months at the rate of $20 a month. Upon the foregoing facts the chancellor sustained the prayer of the bill and rendered a decree in complainant's favor accordingly, from which decree this appeal is prosecuted. It is contended by the appellee, Harris, that he is entitled to have the release set aside because at the time it was executed, first, there was a mutual mistake of fact upon his part and that of the company as to the nature, character, and extent of his injury; second, if not a mutual mistake, it was at least a mistake upon his part; third, that at the time of making the settlement under the policy he was already entitled to the $60 for which he settled, consequently there was no consideration for a release in full by him under the policy, but that the consideration only related to the three months he had already been totally disabled. The policy in this case provides that for total disability the insured is to be paid at the rate of $20 per month, but this payment is not due untu final proof of total disability has been made. In other words, no amount whatever was due Mr. Harris under the policy until the final proof of total disability was made. Had he desired to wait until he was sure of the extent of his injuries under this policy, he would have waited for a period of 24 months, when he would have been entitled to a settlement at the rate of $20 a month for 24 months. He evidently thought, however, that he had practically recovered at the end of 3 months, and be and his physician so reported the fact to the company, and made a claim for only $60 for the injury. It is his contention that at this time he was mistaken as to the nature and extent of his injuries; that he thought his hip was only dislocated. The accompanying statement of his surgeon, however, shows that his hip was both dislocated and fractured, and this appears to have been the true state of the case. He must have been We have examined carefully the authorities cited in the briefs of the appellant and appellee, and we find no well-considered cases that support the contention of appellee that under this statement of facts a court of equity should set aside a settlement duly entered into between the parties. The appellee, among other authorities, cites 6 Thompson on Negligence, par. 7378, as sustaining his contention that the release should be set aside because of a mistake of fact as to the nature and extent of the injuries of the appellee. It will be found from an examination of this section, however, and the authorities cited thereunder, that when the mistake is a mere matter of opinion, as it was in this case, as to the length of time the injured party would be disabled, and no fraud or misrepresentations were practiced upon him by the other party, the release will not be set aside. The contentions of the appellee in this case have already been adversely decided in the case of Railway Co. v. Turnbull, 71 Miss. 1029, 16 South. 346. In the Turnbull Case the settlement was made upon the representations of the attending physician, who was a surgeon of the railway company. These representations were made in good faith as to the extent of Turnbull's injuries, but the physician was honestly mistaken in them. Acting upon these representations Turnbull settled for a very small amount, not at all commensurate with the injury. The court in that case in part says: "It was, however, the expression of an opinion only-an opinion, in our judgment, reasonably founded upon the then existing conditions. It turns out that the unhappy man's injuries were lasting and very much more serious than was then supposed; but we are not to pass upon the then apparent state of the hurt in the light of the after developments of the case. The most learned and accomplished man in the medical and surgical ranks makes no pretense to pierce the darkness of futurity and foretell its secrets. He looks at what is before him and judges for the present, just as do all others. The opinion of the physician in this instance was an honest one, a reasonable one, a just one as the case then stood. Hard as the appellee's case appears to be, we cannot open the door to unsettle the faith of men dealing with each other in the binding force of contracts solemnly entered into, by |