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rendered by the justice of the peace in favor of Schwartz was filed in the office of the clerk of the district court. At the later date the judgment, by virtue of the statute, became a lien on the real estate, and by virtue of the statute it expired five years from that date.

Respondent's counsel, however, further contend that the levy, on Dec. 5, 1895, of the execution issued on the Schwartz judgment, created a lien on said real estate which was independent of and supplementary to the judg ment and which continued after the expiration of the judgment lien and until the day of sale on the 24th day of June, 1897. Two liens at the same time, on the same thing, for the same sum, due on the same cause of action, would be a strange anomaly.

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nor does Bagly v.

It is well settled by the authorities that "the levy of an execution upon real estate, during the time that the judg ment upon which the execution issued was a lien same, neither extends the lien of the judgment, it create a new lien upon the property." Wood, 37 Cal., 121; Sanders v. Russell, 86 Cal., 119; Edy v. Foster, 61 Cal., 287; Tenney v. Hemenway, 53 Ill., 98; Gridley v. Watson, 53 Ill., 186; Cornwell v. Watkins, 71 Ill., 488; Pierce v. Fuller, 36 Hun., 179; Roe v. Swart, 5 Cow., 294; Tufts, Admr., v. Tufts, 8 Wend., 621; 1 Freeman on Judg. Sec. 383; 1 Freeman on Executions, Sec. 205 and Note; Davis v. Ehrman, 20 Pa. St., 258.

The sale of said real estate was not made to Schwartz on the levy made Dec. 5, 1895, of the execution issued on the judgment in his favor by the justice of the peace, but under an execution issued upon another judgment of the district court which was not rendered until the expiration of more than five years from the date of filing the abstract of the judgment of the justice of the peace.

The judgment of the district court was for a different sum than the former judgment. It included the costs of the suit in the district court, also the interest on the former judgment from its rendition up to the date of the second judgment, and as this judgment drew interest from its rendition up to the date of the sale to Schwartz, compound interest accumulated, as also interest on the amount of said costs. Neither said costs nor compound interest were covered by said lien. Therefore the first judgment was different from the second in its material elements, and being different, and the appellant not being a party to the action in which it was rendered, the rights of the appellant were, in no wise, affected thereby.

In Woolston v. Gale, 4 Halstead (N. J. L.), 32, the chief justice in the opinion, said: "It has more than once been determined that on scire facias the justice is to render judgment, that execution issue, and for costs, and can not render a new judgment for the amount of the original judgment and interest and costs thereon.'

"If after judgment and levy on lands, the judgment debtor executes a mortgage, and the judgment becomes dormant, the revival of the judgment does not operate to the prejudice of the mortgage lien; but in such case the mortgage lien becomes perfect, and the judgment lien on the mortgaged premises is lost." Tracy v. Tracy, et al., 5 Mc Leans, C. C. Rep., 456; Norton v. Beaver, 5 Ohio Rep., 178; Miner v. Wallace, 10 Ohio, 404; Denegre v. Haun, 13 Ia., 240, 244; Freeman on Executions, Sec. 205, and n. 1; Freeman on Judgments, Secs. 383, 388, 394.

"A judgment lien on land constitutes no property or right in the land itself. It confers, only, a right to levy on the same to the exclusion of other adverse interests subsequent to the judgment, *** and subject to

this right the defendant may convey the land."

on Judgments, Sec. 338.

Freeman

The conveyance to the appellant, as purchaser, at the sale of said real estate, under her trust deed, passed to her the title subject to the prior lien of the judgment rendered by the justice of the peace; and when by operation of law this lien was extinguished, it ceased to be an incumbrance, and the title of the appellant thereupon became absolute; and, as at the date of the rendition of the judgment by the district court, and at the time the execution was issued thereon, and the sale thereunder made, the said Gardiner had no title to the premises, and no lien thereon existed, the sheriff's deed to the purchaser at said sale passed no title to the premises. Therefore the respondents' claim of title under the deed from said. purchaser is without foundation and constitutes a cloud upon appellant's title, which she is entitled to have removed, and is not estopped from maintaining this action.

It is ordered that the decree of the court below be set aside, and the case remanded with directions to enter a decree quieting the title of appellant, as prayed for in her complaint, and that the respondents pay the costs. MINER, J., concurs.

BARTCH, C. J., dissents.

R. T. MAJOR AND NELLIE MAJOR, HUSBAND
AND WIFE, APPELLANTS, v. OREGON SHORT
LINE RAILROAD CO., RESPONDENT.

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PERSONAL INJURIES INSTRUCTIONS PARTICULAR INSTRUCTION
"NEGLIGENCE IS NEVER PRESUMED"- WHEN NOT ERRONEOUS.
FURTHER OF INSTRUCTIONS DEFENDANT NOT AN INSURER".
WHEN NOT ERRONEOUS. CHARGE OF TRIAL COURT TO BE
CONSIDERED AS A WHOLE.

21 141 26 215

21 141 27 525

Instructions

Personal Injuries
Particular Instruction.
gence Is Never Presumed"— When Not Erroneous.

"Negli

Where in an action for damages for personal injuries, the trial court charged the jury that negligence was never presumed, and, at the same time, and in the same sentence, explained to them that, before they could find for the plaintiffs, they must find that one or more of the causes of negligence, alleged in the complaint, had been shown by a preponderance of the testimony, it was equivalent to charging that negligence was never presumed without proof, and that the proof to warrant a recovery, must show the existence of the facts set up as the cause of complaint- of circumstances from which negligence might be inferred, and the expression "negligence is never presumed," as used, could not have misled the jury, and no reversible error was committed.

Further of Instructions" Defendant Not an Insurer "— When Not Erroneous..

In such a case, while an instruction that "the defendant was not the insurer of the safety of the passengers upon its train; and unless you find that the accident resulting in the injury complained of by the plaintiff, resulted from one of the defects alleged in the complaint, and which the defendant could not prior thereto have discovered by the usual and ordinary methods of inspection adopted and exercised by railroad companies as ordinarily operated, then your verdict should be for the defendant" considered in the abstract is objectionable, yet when taken in connection with that portion of the charge immediately following where it is said that "it was the duty of the defendant to use the utmost care and skill which prudent men" in the same kind of business would use under similar circumstances, the instruction is not misleading.

Charge of Trial Court To Be Considered as a Whole.

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When the charge of the trial court, as a whole, appears to state the law fairly and correctly, there is no reversible error, even if one portion of the charge, considered alone, is faulty. (Decided December 11, 1899.)

Appeal from the Second District Court, Weber County, Hon. H. H. Rolapp, Judge.

Action by plaintiff to recover damages for personal injuries alleged to have been caused by the negligence of defendant company. From a judgment for defendant, Affirmed.

plaintiff appealed.

J. D. Murphy, Esq., and T. D. Johnson, Esq., for appellant.

"According to the weight of authority in this country negligence is presumed when an injury results from the breaking or defective condition of any of the appliances of a railway used in the carrying of passengers or in the method of their use."

In support of this rule we cite: Sayer v. Hannibal & C. R. R. Co., 37 Mo., 240; Bowen v. N. Y. & C. Ry Co., 18 N. Y., 408; Curtis v. Rochester & C. Ry Co., 18 N. Y., 534; Ware v. Gray, 11 Pick. (Mass.), 106; McLean v. Burbank, 11 Minn., 277; Phila., etc., Ry. Co. v. Anderson, 94 Pa. St., 351; S. C., 39 Am. Dec., 787; Brehm v. Gt. Western Ry. Co., 34 Barb. (N. Y.), 256; Sullivan v. Phila., etc., Ry. Co., 30 Pa. St., 234; Toledo, etc., Ry. Co. v. Beggs, 85 Ill., 80; Pittsburg, etc., Ry. Co. v. Thompson, 56 Ill., 138; Edgarton v. N. Y. & C. Ry. Co., 35 Barb. (N. Y.), 389; Caldwell v. N. J. Steamboat Co., 47 N. Y., 236; Holbrook v. Utica, etc., Ry. Co., 12 N. Y., 236; Roberts v. Johnson, 58 N. Y., 613; C. & A. Ry. Co. v. Pittsburg, 123 Ill., 9 (5 A. S. Rep. and notes); Fairchild v. Cal. Stage Co., 13 Cal., 599.

"The giving of contradictory instructions on a vital issue is ground for reversal." Bluler v. Moore, 69 N. W., 164; Brown v. McAllister, 39 Cal., 573; Mc Creery v. Everding, 44 Cal., 246; Creighton v. Evans, 53 Id.,

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