driver when the truck was at least fifty feet from the crossing. Under these circumstances, it was for the jury to say whether the driver exercised such care and caution the surroundings and conditions before him plainly demanded.

[3] The case is not within the scope of the decisions holding there can be no recovery for injuries to a child which suddenly darts from a place of safety into a danger defendant was without opportunity to avoid. Here the driver was aware of the presence of chil

dren coasting on the hill, and that fact called for unusual care and watchfulness on his part. Notwithstanding this he was not aware an accident had happened until his attention was called to it by his helper. Under the evidence submitted on behalf of plaintiffs it was for the jury to say whether the exercise of proper care would have enabled him to see the child and either stop or turn aside the truck in time to avoid a collision. Tatarewicz v. United Traction Co., 220 Pa. 560, 69 Atl. 995; Mulhern v. Phila- | delphia Homemade Bread Co., 257 Pa. 22, 101 Atl. 74. Although the case is somewhat similar to Eastburn v. United States Express Co., 225 Pa. 33, 73 Atl. 977, there are points of distinction as stated by the court below, as follows:

"First, the vehicle was a wagon which ordinarily contained no apparatus for advance warning of its approach, and, second, there appears to have been no evidence in that case that the driver had reason to believe that children would be on the street in the neighborhood of the accident."

[4] Other assignments of error relate to rulings on evidence and the charge of the court below; appellant, however, apparently did not deem them worthy of consideration, as the questions they raise are not included in the statement of questions involved, and need not be considered. Yeager v. Anthracite Brewing Co., 259 Pa. 123, 130, 102 Atl. 418; McClintock & Irwin Co. v. Etna Explosives

Co., 260 Pa. 191, 103 Atl. 622, Ann. Cas. 1918E, 1078; Loeb v. Davidson, 261 Pa. 418, 104 Atl. 681.

The judgment is affirmed.

(262 Pa. 530)

REISINGER v. GARRETT SMOKELESS COAL CO. et al.

(Supreme Court of Pennsylvania. Jan. 4, 1919.)

1. MINES AND MINERALS 542, New, vol. 6A Key-No. Series-MORTGAGES-FORECLOSURE-TITLE OF PURCHASER-INTERVENING INTERESTS.

Where owner of mortgaged coal land conveyed it to one who executed a royalty lease

signee of mortgage with assignee of lease to waive his priority was recorded in deed book, but not in mortgage book, and owner of the land recorded a repudiation of agreement in deed book, and assignee foreclosed against entire property, title acquired at sheriff's sale on the levari facias related to date of record of mortgage and cut out all intervening interests and estates.

2.

MINES AND MINERALS 542, New, vol. 6A Key-No. Series-FORECLOSURE OF MORTGAGE-POSSESSION OF PURCHASER.

veyed it to one who executed a royalty lease of Where owner of mortgaged coal land conthe coal, and agreement by assignee of mortgage with assignee of lease to waive his priority was recorded in deed book, but not in mortgage book, and assignee foreclosed against entire property, the lessee, who permitted sale without protest on notice at the sale, could not interpose the agreement to defeat purchaser's possession.

3. MINES AND MINERALS 542, New, vol. 6A Key-No. Series-MORTGAGES-RECORDCONSTRUCTIVE NOTICE.

Where owner mortgaged coal land and conveyed it to one who executed a lease of the coal therein, and agreement by assignee of mortgage with assignee of lease to waive his priority was and where owner of land recorded a repudiation recorded in deed book, but not in mortgage book, of agreement in deed book, and assignee foreclosed against entire property, the agreement was not constructive notice to any one.

4. MINES AND MINERALS 54%, New, vol. 6A Key-No. Series-MORTGAGES-FORECLOSURE-PURCHASER'S KNowledge-BID.

Where owner mortgaged coal land and conveyed it to one who executed a lease of the coal therein, and agreement by assignee of mortgage with assignee of lease to waive his priority was recorded in deed book, but not in mortgage book, and where owner of the land recorded a repudiation of agreement in deed book, and assignee foreclosed against entire property, the purchaser's actual knowledge of agreement was immaterial, as it did not preclude him from bidding at sale.

Appeal from Court of Common Pleas, Somerset County.

Proceedings by Daniel M. Reisinger against the Garrett Smokeless Coal Company and others, brought under Act April 20, 1905 (P. L. 239) § 12, to secure possession of coal sold at a sheriff's sale under a mortgage foreclosure. From an order awarding possession of coal, the named defendant ap peals. Affirmed.

Argued before BROWN, C. J., and STEWART, WALLING, SIMPSON, and FOX, JJ.

M. W. Acheson, Jr., of Pittsburgh, and C. W. Walker, Ross R. Scott, and Jos. Levy, all of Somerset, for appellant.

WALLING, J. This is a statutory proceeding to obtain possession of land purchased at sheriff's sale. In 1910 the Kenneth Coal Company gave the Milford Coal Company a first mortgage on certain coal lands in Somerset county. Later the land was conveyed to the Mountain Smokeless Coal Company, who, in 1913, executed a royalty lease to Wm. G. Hocking for all the coal therein. The lease was duly recorded and in 1916 assigned by Hocking to the Garrett Smokeless Coal Company, the appellant. By sundry assignments Henry T. Hocking became the owner of the mortgage, and on February 5, 1917, executed an agreement with the Garrett Smokeless Coal Company, stipulating that in consideration of $5 and the making within one year of certain permanent improvements on the lands, to cost not less than $5,000, he agreed "to recognize said lease and to perform and abide by all the covenants of the Mountain Smokeless Coal Company in the said lease in the same manner and to the same extent as if the said Henry T. Hocking had been made a party to the said lease," and waiving his rights as mortgagee so far as the same might impair the rights of the Garrett Smokeless Coal Company as lessee. In May, 1917, this agreement was recorded in a deed book of said county, but not in a mortgage or miscellaneous book, nor was any reference thereto made on the record of the mortgage. Thereafter, on August 31, 1917, the Mountain Smokeless Coal Company made and executed a repudiation of said agreement, stating, inter alia, "that the said Mountain Smokeless Coal Company does hereby repudiate and refuse to assent to the said agreement between the said Henry T. Hocking and the said Garrett Smokeless Coal Company, and does declare the same absolutely null and void, so far as the said agree ment affects the rights of the said Mountain Smokeless Coal Company," which repudiation was also recorded in a deed book of said county. On the day that said agree ment was recorded (May 18, 1917) the mortgage was assigned to Elizabeth M. Hocking; and, default having been made thereon, she caused a writ of scire facias sur mortgage to be issued on June 28, 1917. This writ followed the description, etc., of the mortgage, and was served on the Mountain Smokeless Coal Company, the real owner of the real estate, and also upon the Garrett Smokeless Coal Company, the tenant found in possession of the property. Judgment was duly entered against the Mountain Smokeless Coal Company in default of an affidavit of defense, and later against the Kenneth Coal Company, the original mortgagor on two returns of nihil habet. A

ment upon which the lands therein described were duly sold by the sheriff to Daniel M. Reisinger, the appellee, for a sum sufficient to pay the judgment and return a small balance to the Mountain Smokeless Coal Company as owner of the property. Reisinger purchased with knowledge of the agreement and repudiation above mentioned, but the foreclosure proceedings contained no reference to either, nor was any notice given thereof at the sheriff's sale. Said agreement was wholly ignored in the foreclosure proceedings and sale of the property; and the lessee, appellant, took no steps to protect its interest or to limit the judgment or sale of the property, although it had made expenditures in the development thereof. The sheriff's deed to Reisinger followed the mortgage and included the entire property, without reservation of the coal embraced in appellant's lease. Thereafter Reisinger presented his petition to the court, pursuant to the act of April 20, 1905 (P. L. 239; Purdon's Digest [13th Ed.] vol. 5, p. 6100), to obtain possession of the premises. To this appellant filed an answer, and the court below, concluding that the case turned on questions of law, entered judgment for the petitioner, from which the Garrett Smokeless Coal Company took this appeal.

[1-4] In our opinion the case was rightly decided. The coal lease, being subsequent to the mortgage, was subject thereto; and the judgment entered on the scire facias prima facie bound the entire estate, including the coal. The title acquired at sheriff's sale on the levari facias related back to the date of the record of the mortgage and cut out all intervening estates and interests. Lance v. Gorman, 136 Pa. 200, 20 Atl. 792, 20 Am. St. Rep. 914; Saunders v. Gould, 124 Pa. 237, 16 Atl. 807; Levan et al. v. Millholland et al., 114 Pa. 49, 7 Atl. 194; Coyne v. Souther et al., 61 Pa. 455; Magaw v. Garrett et al., 25 Pa. 319; McCormick v. McMurtrie, 4 Watts, 192. Those principles are unquestioned, but appellant contends, do not control this case, because of the agreement of the mortgagee assuming to give priority to the lease. However, the assignee of the mortgage ignored that agreement and foreclosed against the entire property, and although the scire facias was served on appellant, as tenant in possession, it interposed no defense, and permitted judgment to be entered by default. The coal in place was a part of the real estate covered by the mortgage, and any claim of its release or exemption should have been made in answer to the scire facias, for the mortgage merged in the judgment. Shryock v. Buckman, 121 Pa. 248, 15 Atl. 480, 1 L. R. A. 533; Michælis v. Brawley, 109 Pa. 7; Hartman v. Ogborn, 54 Pa. 120, 93 Am. Dec. 679. The parties served are concluded by the judgment, Lyle v.

entered for defendant.

MOSCHZISKER, J. [1] James L. Riddell, an employé of the Pennsylvania Railroad Company, on June 4, 1912, when but 18% years of age, made written application for membership in the latter's relief association,

and was duly accepted. November 8, 1912, while engaged in the performance of his regular duties, he was seriously injured. October 24, 1914, suit was brought in the court below, plaintiff alleging that his injuries were due to negligence by defendant. Upon the trial, Riddell expressly elected to proceed at common law and not under the federal statutes. Defendant proved, by documentary evidence, plaintiff's contract of membership with its relief association and that, after the accident, he had accepted benefits therefrom, in accordance with the rules and regulations thereof, for a period covering almost two years, amounting in the aggregate to $527. On this proof defendant requested binding instructions in its favor, which were declined. Plaintiff recovered a substantial verdict upon which judgment was entered. Defendant moved for judgment n. o. v., and, upon its refusal, took this appeal. Young Riddell was over 18 and under 21 years of age when he joined defendant's beneficial association, also at the time of the accident and during the period of his acceptance of benefits; but the Act of June 24, 1897, P. L. 204, provides:

"It shall be lawful for minors, who have attained the age of eighteen years, to make all needful contracts to become members of fraternal and beneficial societies lawfully organized and doing business under the laws of this commonwealth."

Defendant's association is such a society. Had plaintiff been of full age when he accepted the relief benefits, under the then established law of Pennsylvania, this would have released his right to recover damages, and effectually barred his action; but the court below decided that, since he was then still a minor, notwithstanding the act of 1897, supra, and the terms of his contract of membership in defendant's relief association, his acceptance of such benefits could not have that effect. The correctness of this conclusion is the controlling question for decision on the present appeal.

to the one executed by the plaintiff in this case, and this contract expressly provides that the acceptance of benefits from such

association, "for injury or death, shall operate as a release of all claims for damages against said company, arising from such injury or death, which could be made by or through" the member; but the court below

decided, in substance, that, since the contract here in question did not pretend to, and could not validly, release damages for prospective personal injury, and since the act of 1897 did not expressly authorize minors to execute a release of damages at any time, even after an accident, the release depended upon in the present case could not prevail.

The conclusion of the court below practically deprives the act of 1897, supra, of its real purpose, which is to give legal capacity to minors, over 18 years of age, to make contracts required of them in becoming members of fraternal and beneficial societies; in other words, the plain intent of the act is to put such minors on a par with adults in respect to the class of contracts therein contemplated.

Long prior to the date of the statute under consideration, we had passed upon the effect of contracts such as the one we are now dealing with, and held that there was nothing illegal or against public policy either in their terms or operation; moreover, we had especially sustained the validity of the provision as to the acceptance of benefits releasing damages, and determined, when in any suit it was shown that such benefits had been paid to and accepted by an injured plaintiff, the defendant would be entitled to binding instructions in its favor (see Johnson v. P. & R. R. R. Co., 163 Pa. 127, 29 Atl. 854; Ringle v. Penna. R. R. Co., 164 Pa. 529, 30 Atl. 492, 44 Am. St. Rep. 628), all of which matters of law we must assume were known to the Legislature when it passed the enabling act of 1897, supra.

106 A.-6