EMRY V. NAVIGATION CO. intruders, the proprietor is not liable for injury resulting to persons by reason of the condition in which the premises have been left, or from the prosecution of a business in which the owner had a right to engage. Evansville, etc., v. Griffin, 100 Ind., 221; Gillespie v. McGowan, 11 Pa., 144; Gramlich v. Wurst, 86 Pa., 74; Cauley v. Pittsburg, etc., 90 Pa., 398; McAlpine v. Powell, 70 N. Y., 126; Hargreaves v. Deacon, 25 Mich., 1; Burdick v. Cheadle, 26 Ohio, 393; Indianapolis v. Emmelmon, 6 West Repts., 569." The foregoing authorities, and many others that could be cited, abundantly sustain the proposition "that a trespasser or mere licensee who is injured by a dangerous machine or contrivance on the land or premises of another, cannot recover damages unless the contrivance is such that the owner may not lawfully erect or use, or when the injury is inflicted wilfully, wantonly or through the gross negligence of the owner or occupier of the premises." Galveston-Oil Co. v. Martin, 70 Texas, 400. In the leading case of Larmore v. Crown Point Iron Co., 101 N. Y., 291, it was held that where one goes upon the premises of another, without invitation, to obtain employment, and is there injured by a defective machine, he cannot recover. ANDREWS, J., in the course of a well reasoned opinion, uses the following language: "The precise question is whether the person, who goes upon the land of another without invitation to secure employment from the owner of the land, is entitled to indemnity from such owner for an injury happening from the operation of a defective machine on the premises, not obviously dangerous, which he passes in the course of his journey, if he can show that the owner might have ascertained by the exercise of reasonable care. We know of no case which goes to that extent." After speaking of the liability of a land-owner to an uninvited person for injuries caused by the setting of spring-guns or dangerous traps on his premises, and also the duty of railroad compa EMRY U. NAVIGATION Co. nies in running their trains to use proper care in respect to persons on the track, where it has been used by the public without objection, the learned Judge continues: "But in the case before us, there were no circumstances creating a duty on the part of the defendant to the plaintiff to keep the whimsey in repair, and consequently no obligation to remunerate the latter for his injury." It has also been held, where a sign of "No admittance" was placed on a door, that one who entered the room (being of the class meant to be excluded) cannot recover for injuries caused by the negli gence in the management of the room, even though no attempt was made to exclude him, nor any further warning given. Zoebisch v. Tarbell, 10 Allen, 385; Victory v. Baker, 67 N. Y., 366. So where a trespasser entered the defendant's abandoned freight-house and the wind blew the wall down. and injured him. Larry v. Railroad Co., 78 Ind., 323. To the same effect is the case of McDonald v. Railroad, 35 Fed. Rep., 38. There, the defendant corporation in working its coal mine threw out a pile of slack on its own land, the pile presenting the appearance of coal ashes. The land was not fenced, and a stranger in the neighborhood in passing over the slack was burned. It was held that he had no right of action against the corporation. In Batchelor v. Fortescue, 47 J. P., 308 (Eng.), the defendant had contracted to do certain work on a plat of ground where buildings were erected and excavations were being made. To carry out the work, he, by his men, worked a steam-winch and crane, with a chain and iron tub attached thereto. The deceased was employed by the owner of the ground to watch the materials and buildings. He had no duty to take part in the excavating, and it was no part of his business to stand under the tub as it was raised. While watching the men working, the tub fell on his head and he was killed. It was held that the defendant was not liable." "The deceased was there to watch the material and buildings. EMRY V. NAVIGATION CO. He had no business with the machinery, nor any duty to watch the defendant's men at work. He was thus in a place where he had no right to be, and was a mere licensee to whom the defendant owed no duty." ་ It is true that the general principles we have enunciated are subject to some qualifications, under possible circumstances, in favor of certain licensees, or purely technical trespassers, and of persons walking on a railroad track, as in Clark v. Railroad, 109 N. C., 430, and Deans v. Railroad, 107 N. C., 686. Here, on the border-land between the doctrine we have stated, and that of contributory negligence, there is some obscurity and conflict in the authorities. But however that may be, there is no difficulty in its application to a case like the present, where, in the eyes of the law, the plaintiffs must be regarded as wilful trespassers. The authorities are practically unanimous in holding that, in favor of trespassers of this character, the land-owner owes no duty to exercise ordinary care in the use of his premises or in the conduct of lawful operations thereon. If no such duty existed in the foregoing cases, which have been cited by way of illustration, and in which the lives of human beings were imperiled, it would be difficult, indeed, to understand how it could be imposed upon the defendant in this action. It would be a strange result if one who is involuntarily made the custodian of another's property by the coercive power of a shotgun, should be held liable for an accident to such property because of his failure to take all of the precautions which would commend themselves to a prudent man. It is fully settled by the authorities above mentioned that the duty of a land-owner, under such circumstances, can be no greater than to abstain from what is very generally called “wanton or wilful negligence." The defendant had a right to improve its property, and, in blasting for that purpose, it was engaged in a lawful occupation. There is nothing to show that its servants acted wilfully, wantonly or recklessly, and there is WALLACE v. COHEN. no testimony tending to prove that after they discovered the accident, they could, by ordinary care, have prevented the destruction of the building. Certainly there is nothing to indicate the same indifference on their part as that shown by the plaintiff's agent, who, although he had his hands present, made no effort to arrest the flames, and, indeed, stated that, as he did not cause the fire, he would not assist in putting it out and "that it might burn." The defendant, therefore, having been guilty of no "wilful or wanton negligence" (the abstaining from which constituted its only duty under the circumstances), it must follow that it cannot be held liable for the accidental destruction of the plaintiff's property. We have carefully considered the other exceptions, and are of the opinion that they are without merit. The judgment must be Affirmed. WALLACE, ELLIOTT & CO. v. W. H. COHEN et al. Fraud-Contract-Rescission-Innocent Purchaser-Trusts- Mortgages-Registration-Notice. 1. Where a contract of sale has been induced by the fraud of the vendee, it is voidable at the election of the vendor, who has a right, upon the discovery of the fraud, to rescind the contract and recover the property delivered under it. 2. An innocent purchaser for a valuable consideration, from the fraudulent vendee, will, however, be protected against the vendor. 3. While the mortgagee or trustee of land conveyed to secure pre-existing debts is a purchaser for value, yet he takes the property sub- ject to any equity or other right attached to it in the hands of the debtor. (Brem v. Lockhart, 93 N. C., 191, commented upon.) 4. While an unregistered mortgage is good inter partes, actual notice of its existence will not affect the rights of a junior registered mortgage. WALLACE v. COHEN. CIVIL ACTION, tried upon demurrer at Spring Term, 1892, of CRAVEN Superior Court, Brown, J., presiding. The material parts of the complaint and record are as follows: - 2. That the defendant W. H. Chen, on the day of ---purchased from the plaintiffs the goods, wares and merchandise fully described and set out in the affidavit of plaintiff filed in the action for the recovery of said property, which said affidavit is referred to for a full and definite description of the same, and hereby made a part and parcel of this complaint for a description of the property aforesaid. - 3. That at the time of the purchase of the goods aforesaid, as plaintiffs are informed and believe, the said W. H. Cohen was insolvent, and well knew of his insolvency at the time of his purchase, and fraudulently concealed his said insolvency from plaintiffs by falsely representing to them his financial condition to be largely in excess of all liabilities existing at the time of such representation, and at such time. not having the intention of paying for the goods so purchased. 4. That shortly after the time of the purchase aforesaid, to-wit, on the day of April, 1891, the defendant W. H. Cohen made an assignment of all his property of every nature and kind to his co-defendant, J. W. Moore, for the benefit of his creditors, with certain preferences therein. named, though the entire value of the property so assigned was not sufficient to pay off in full even the amount of the indebtedness of defendant due at that time to the creditors preferred in the assignment aforesaid. The assignment or deed of trust referred to being duly recorded in the records of Craven County, and are hereby made a part and parcel of this complaint. 5. That the plaintiffs are the owners and entitled to the possession of the goods as above described, and the defendant J. W. Moore, assignee, is in possession thereof. |