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Keffe v. Milwaukee and St. Paul Railway Co.

table, when left unfastened, was easily revolved; that, when left unfastened, it was very attractive and, when put in motion by them, dangerous to young children; and knew also that many children were in the habit of going upon it to play. The defendant therefore knew that, by leaving this turn-table unfastened and unguarded, it was not merely inviting young children to come upon the turn-table, but was holding out an allurement, which, acting upon the natural instincts by which such children are controlled, drew them by those instincts into a hidden danger; and having thus knowingly allured them into a place of danger, without their fault (for it cannot blame them for not resisting the temptation it has set before them), it was bound to use care to protect them from the danger into which they were thus led, and from which they could not be expected to protect themselves.

We agree with the defendant's counsel that a railroad company is not required to make its land a safe playground for children. It has the same right to maintain and use its turn-table that any land owner has to use his property. It is not an insurer of the lives or limbs of young children who play upon its premises. We merely decide that when it sets before young children a temptation which it has reason to believe will lead them into danger, it must use ordinary care to protect them from harm. What would be proper care in any case must, in general, be a question for the jury, upon all the circumstances of the case.

The position we have taken is fully sustained by the following cases, some of which go much farther in imposing upon the owner of dangerous articles the duty of using care to protect from injury children who may be tempted to play near or meddle with them, than it is necessary to go in this case. Lynch v. Nurdin, 1 Q. B. 29; Birge v. Gardiner, 19 Conn. 507; Whirley v. Whiteman, 1 Head, 610.

It is true that, in the cases cited, the principal question discussed is, not whether the defendant owed the plaintiff the duty of care, but whether the defendant was absolved from liability for breach of duty, by reason of the fact that the plaintiff was a trespasser, who, by his own act, contributed to the injury; and the distinction is not sharply drawn between the effect of the plaintiff's trespass, as a bar to his right to require care, and the plaintiff's contributory negligence, as a bar to his right to recover for the defendant's failure to exercise such care as it was his duty to use. But as a

Keffe v. Milwaukee and St. Paul Railway Co.

young child, whom the defendant knowingly tempts to come upon his land, if any thing more than a technical trespasser, is led into the commission of the trespass by the defendant himself, and thus occupies a position widely different from that of an ordinary trespasser, the fact that the courts, in the cases referred to, assumed, instead of proving, that the defendant owed to a young child, under such circumstances, a duty he would not owe to an ordinary trespasser, for whose trespass he was not in any way responsible, does not weaken the authority in those cases. And in Railroad Co. v. Stout, 17 Wall. 657 (a case in all respects similar to the present), the distinction insisted on by counsel is taken by Mr. Justice HUNT, and the circumstance that the plaintiff was in some sense a trespasser is held not to exempt the defendant from the duty of care. In the charge of the learned circuit judge at the trial of the last-named case (reported under the title of Stout v. Sioux City and Pacific R. Co., 2 Dill. 294), the elements which must concur to render the defendant liable, in a case like the present, are clearly stated.

In Hughes v. Macfie, 2 Hurlst. & Coltm. 744, and Mangan v. Atterton, L. R., 1 Exch. 239, cited by defendant's counsel, there was nothing to show that the defendants knew or had reason to apprehend that the cellar lid in the one case, or the crushing machine in the other, would be likely to attract young children into danger. It must be conceded that Hughes v. Macfie is not easily to be reconciled with Birge v. Gardiner, and that Mangan v. Atterton seems to conflict with Lynch v. Nurdin; but whether correctly decided or otherwise, they do not necessarily conflict with our decision in this case.

Much reliance is placed by defendant on Phila. & Reading R. Co. v. Hummell, 44 Penn. St. 375, and Gillis v. Penn. R. Co., 59 id. 129. In the first of these cases, the plaintiff, a young child, was injured by coming upon the track while the cars were in motion. The only negligence charged upon the defendant was the omission to give any signal at or after the starting of the train. If the plaintiff had been crossing the track, through one of the openings which the company had suffered the people in the neighborhood to make in the train while standing on the track, and the cars had then been run together upon him, without any warning, the case would more nearly resemble the present; but the facts, as they appear, show that the company used abundant care, and that

Banning v. Bradford.

it had no reason to suppose that the plaintiff was exposed to danger; and the decision is put upon the latter ground, although STRONG, J., delivering the opinion of the court, uses language which lends some support to the defendant's contention in this case. Gillis v. Penn. R. Co. was properly decided, on the ground that the company did nothing to invite the plaintiff upon the platform, by the fall of which he was injured, and that the platform was strong enough to bear the weight of any crowd of people which the company might reasonably expect would come upon it. Neither of these cases is an authority against, while a later case in the same court (Kay v. Penn. R. Co., 65 Penn. St. 269; S. C., 3 Am. Rep. 628), tends strongly to support, the plaintiff's right of action in this case; and the recent case of Pittsburg A. & M. Passenger R. Co. v. Caldwell, 74 Penn. St. 421, points in the same direction.

It was not urged upon the argument that the plaintiff was guilty of contributory negligence, and we have assumed that the plaintiff exercised, as he was bound to do, such reasonable care as a child of his age and understanding was capable of using, and that there was no negligence on the part of his parents or guardians contributing to his injury.

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Judgment reversed.

BANNING, appellant, v. BRADford.

(21 Mina. 308.)

one holding adversely to mortgagor not party to foreclosure of mort

gage.

A person holding lands adversely to one mortgaging them cannot be made a party to a foreclosure of the mortgage; neither can such person maintain an action to have such mortgage declared void.

A

CTION to foreclose a mortgage by William L. Banning against John F. Bradford and others, among whom was one Goodrich, who defended the action. The mortgage in question was executed by defendant Bradford. The defense of Goodrich, who was in possession of part of the premises described in the mortgage,

Banning v. Bradford.

was that at the time such mortgage was executed, the mortgagor had no title to or interest in the premises, but the title was in his own grantor. He asked judgment that the mortgage be as to the premises in his possession declared void, and be discharged from the record. Other defendants set up a like defense as to other premises described in the mortgage. The court before whom the action was tried decided that the title of the mortgagor was not valid as against Goodrich and the other defendants setting up the same answer, but that those defendants and Goodrich were entitled to judgment. From an order denying a new trial, plaintiff appealed.

H. J. Horn, for appellant.

Cooley & Lowry, for respondents.

YOUNG, J. It is unnecessary to consider the grounds upon which this application for a new trial is based, or those on which it is opposed, for we are of opinion that upon the admitted facts of this case, neither party to this appeal has any cause of action against the other.

The appellant's mortgage, upon which this action is founded, was not a conveyance of any estate or interest in the land in question. It was merely an executed contract between the appellant and Bradford, the mortgagor, whereby the former obtained a lien upon the estate of the latter, but no estate or interest in the land itself. By the mortgage, the appellant could acquire no rights as against any one except the mortgagor, and those claiming, through him, rights and interests in his estate. As against the respondents, who were not parties to the contract, and claim no rights under it, and no rights or interests in the estate mortgaged, but who claim a legal estate in fee in the land, by a title adverse and, if valid, paramount to that of Bradford, the appellant could acquire by his mortgage no rights whatever. They are strangers to him and his mortgage, as much so as if they claimed no estate of any kind in the land; their estate and title, whether valid or invalid, can be in no way affected by a transaction which, as to them, is wholly res inter alios acta.

As the appellant's mortgage affected only the estate of Bradford, the respondents can have no interest in the suit brought to foreclose

Banning v. Bradford.

it. The proper object of such an action is to subject the mortgaged estate to the payment of the mortgage debt. The only proper parties are the mortgagor and the mortgagee, and those who have acquired rights or interests under them in the mortgagor's estate; for these are the only persons having any rights or obligations growing out of the mortgage, or interested in any manner in the subject-matter of the action. A stranger claiming adversely to the title of the mortgagor, as he is not affected by the mortgage, is in no way interested in the foreclosure suit. It can make no difference to him whether the mortgage is valid or invalid, whether it be discharged or foreclosed, whether the estate mortgaged, the only estate which can be affected by the decree, remains in the mortgagor, or is transferred to another. As such adverse claimant is a stranger to the mortgage and to the mortgaged estate, he has no interest in the subject-matter of the action, there is no privity between him and the plaintiff, and the plaintiff has no right to make him a party defendant, for the purpose of trying his adverse title in the foreclosure suit. Story's Eq. Pl., §§ 226, 227, 230, 231, 262, 513, 517, 519; 1 Dan. Ch. Pr. (3d Am. ed.) 239, 330, 331, 582, 605; Eagle Insurance Co. v. Lent, 6 Paige, 635; Holcomb v. Holcomb, 2 Barb. 20; Corning v. Smith, 6 N. Y. 82; Lewis v. Smith, 9 id. 502; Frost v. Koon, 30 id. 428, 444; San Francisco v. Lawton, 18 Cal. 465; Pelton v. Farmin, 18 Wis. 222; Chamberlain v. Lyell, 3 Mich. 448; Wright v. Dudley, 8 id. 115; and see Newman v. Home Insurance Co., 20 Minn. 422.

There is even less ground for allowing the plaintiff to make a person claiming an adverse title a party defendant, in a suit by mortgagee against mortgagor for the foreclosure of a mortgage, than in a suit by purchaser against vendor for specific performance, or by grantee against grantor for the reformation of a deed. In each of these cases, the plaintiff has an estate in the land, legal or equitable, while a mortgagee has no estate or interest, but only a lien upon the land. But it is perfectly well settled that in neither. of these can a stranger, claiming adversely to the vendor or grantor, be made a party, for the plaintiff has no cause of action against him growing out of the contract or conveyance sought to be enforced or reformed. Lange v. Jones, 5 Leigh, 192; Stuart's Heirs v. Coalter, 4 Randolph, 74.

In the case at bar, the complaint alleges that the respondents "claim some estate or interest in said mortgaged premises, accru

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