KELLY, J.
This case is presented upon the pleadings and a stipulation of facts. On the 18th day of May, 1932, during the pendency of this action in the circuit court, the defendant, Annie L. O’Brien, died intestate. On the 25th day of April, 1933, the parties hereto entered into a stipulation, which was also made a part of the stipulation of facts, wherein it was agreed that this action should continue against defendant, J. P. O’Brien, only, and that he waived any and all objections to the continuance and prosecution of said action against him alone without the substitution of the administrator of the estate of said Annie L. O’Brien, deceased, as a defendant in this case. In our discussion of the case we will, therefore, refer to but one defendant.
By stipulation, it is admitted that on July 27, 1925, Coe A. McKenna was the owner of lots 1, 2, 3, 4 and 5 in block 1, Good Morning Addition to East Portland, now within the corporate limits of the city of Portland and on said date Coe A. McKenna and his wife con
veyed said real property to the defendant, J. P. O’Brien, who owned the same at all times thereafter until he executed a conveyance thereof to plaintiff on August 2, 1926. That on August 2, 1926, said J. P. O’Brien and Annie L. O’Brien, his wife, for a consideration exceeding in amount the sum for which plaintiff prays judgment herein, made, executed and delivered to the plaintiff a warranty deed conveying to plaintiff the real property above described, and ever since that time plaintiff has been and is now the owner of said property.
That said deed contained, among other provisions, the following to wit:
“And the grantors above named do covenant to and with the above named grantee, his heirs and assigns, that they are lawfully seized in fee simple of the above granted premises, that the above granted premises are free from all encumbrances, no exceptions, and they will and their heirs, executors and administrators, shall warrant and forever defend the above granted premises and every part and parcel thereof against the lawful claims and demands of all persons whomsoever.”
That on November 5, 1924, in a cause then pending in the circuit court of the state of Oregon for the county of Multnomah, wherein E. B. Stark and Martha Stark were plaintiffs and Coe A. McKenna and others were defendants, there was made and entered a judgment in favor of the plaintiffs in said cause and against said Coe A. McKenna, in the sum of $4,500 and the costs and disbursements in said action; that on the said 5th day of November, 1924, said judgment was duly docketed and entered in judgment docket No. 20, at page 209, in said Multnomah county, at which time said Coe A. McKenna was the owner of said real property first hereinabove described.
That on the 3d day of January, 1925, said Coe A. McKenna served and filed in said cause a notice of appeal to the supreme court of Oregon, from said judgment; and on the 9th day of January, 1925, served and filed his undertaking on appeal wherein said Coe A. McKenna and his surety jointly and severally agreed that they would pay all damages, costs and disbursements which should be awarded against said McKenna on said appeal, and that if said judgment or any part thereof should be affirmed said McKenna would satisfy it so far as affirmed; that upon March 6, 1928, said judgment against said Coe A. McKenna was in all things affirmed by the supreme court.
That on March 12,1928, said surety upon the appeal bond of said McKenna paid to the owner of said judgment the full amount due thereon and in consideration thereof said judgment and the lien thereof were thereupon transferred and assigned to Harry L. Raffety as agent and trustee of said surety, and said Harry L. Raffety in such capacity has remained the owner thereof at all times thereafter. That said judgment has not been satisfied, paid or discharged except to the extent hereinafter stated.
That on November 5, 1924, and at all times thereafter until August 3,1926, said Coe A. McKenna owned, and was shown by the records of Multnomah county, Oregon, to own a number of parcels of land and lots in said county other than the five lots first hereinabove described, one of which said parcels of land said Coe A. McKenna still so owns, and the remaining parcels were sold and conveyed by said Coe A. McKenna to different parties at various dates after July 27, 1925; that during all of said times said other parcels of land and lots had a fair market value over and above encumbrances against the same in excess of the amount
of the judgment against said Coe A. McKenna as affirmed as heretofore stated; but no one of the other parcels, of land so owned by Coe A. McKenna, which were free of encumbrances, during the period mentioned in said stipulation had a value equal to the amount of said judgment and the costs which would have accrued upon the sale of same under execution on said judgment, and that no one of the unencumbered parcels of land so owned by Coe A. McKenna, during the period mentioned, had a value as great as the value of said five lots first hereinabove described.
That at the time of the execution of the conveyance from the defendant, J. P. O’Brien, to the plaintiff, Frank De Carli, of said five lots first hereinabove described, said J. P. 0 ’Brien, at his expense, and as a part of the consideration for such conveyance, furnished to plaintiff a title insurance policy issued by the Title & Trust Company, which policy insured plaintiff against loss or damage on account of any defect in the title to said premises, and also against any loss on account of any and all liens and encumbrances existing on or against said premises at the time of said conveyance.
That on or about the 4th day of February, 1927, plaintiff asserted a claim against said Title & Trust Company by reason of the existence of said judgment as a lien upon said premises, and thereupon said claim was compromised and settled by the payment of $300 to plaintiff by said Title & Trust Company at which time plaintiff executed a release in substantially the following form to wit:
“In consideration of the payment to me of $300.00 by Title and Trust Company, of Portland, Oregon, the receipt of which is hereby acknowledged, I, the undersigned Frank Decarli, do hereby release said Title and Trust Company from all liabilities, claims, and demands
now existing or hereafter to accrue under their policy of Title Insurance, No. 90907, insuring the title to Lots 1, 2, 3, 4, and 5, Block 1, Goodmorning Addition to East Portland, in the City of Portland, County of Multnomah and State of Oregon, and upon any policies hereafter to he issued on said premises or any portion thereof; hut this release is expressly limited to such liabilities, claims or demands as may arise under claim of unmarketability of the title to said premises or any portion thereof, by reason of the existence of the judgment in the Circuit Court of the State of Oregon for Multnomah County against Coe A. McKenna doing business as Coe A. McKenna & Co. in favor of E. R. Stark and Martha Stark in the sum of $4500.00 with interest and costs, which judgment was entered 5 November 1924 in Docket 20 of the judgment Lien Dockets of said Court on page 209.
Dated 4 February 1927.
Frank Decarli”
At the time this action was commenced plaintiff had not paid any sum on account of the judgment herein-before mentioned; that after the commencement of this action and on or about January 30, 1929, and before the plaintiff had paid anything on account of said judgment, the defendants J. P. O’Brien and Annie L. O’Brien served upon plaintiff and his attorney of record in this cause a notice of which the following is substantially a true copy:
“Registered Portland, Ore., January 30,1929.
Mr. Frank DeCarli
Portland, Oregon
Dear Sir:
About January 11, 1929, you commenced an action against the undersigned in the Circuit Court of the
State of Oregon for Multnomah County, Case No. 1810, in which you seek to recover damages for an alleged breach of a warranty against incumbrances contained in a deed dated on or about August 2,1926, executed by the undersigned, conveying to you Lots 1 to 5, inclusive, in Block 1, Good Morning Addition to East Portland, Multnomah County, Oregon.
The alleged incumbrance which you claim to have been a lien on said property at the date of said deed is a certain judgment recovered in the Circuit Court of the State of Oregon for Multnomah County, by E. A. Stark and Martha Stark, against Coe A. McKenna.
The purpose of this letter is to inform you that the holder of said judgment cannot enforce payment of said judgment by levying upon the lots, or any thereof, above mentioned. This is so for several reasons, some-of which involve facts as to which I have not completed by investigation. When I have obtained the further information desired I will furnish it to you if you desire that I shall do so.
Because of the facts stated, if you pay said judgment or any part of thereof you wih do so at your own peril insofar as any alleged liability against the undersigned is concerned. In making such statement we are not admitting that there is or has been any such liability on our part.
232y2
Washington Street
Very truly yours,
(Sgd) J. P. O’Brien
(Sgd) Annie L. O’Brien”
That thereafter and on or about February 13,1929, defendants filed in this cause their answer to plaintiff’s first amended complaint; that on or about the 2d day of December, 1929, defendants served upon plaintiff
and his attorney of record herein a further notice of which the following is substantially a true copy, to wit:
“Registered Portland, Oregon
December 2,1929
Mr. Prank DeCarli
232% Washington Street
Portland, Oregon
Dear Sir:
On January 30, 1929, we wrote you concerning the action which you had commenced against us in the Circuit Court, of the State of Oregon for Multnomah County, Case No. N1810, in which you seek to recover judgment for an alleged breach of a warranty contained in a deed executed by us to you on or about August 2, 1926.
In that letter we stated that the property so conveyed to you could not be levied upon for the satisfaction of the judgment which you alleged to be an encumbrance upon said property. The reasons for this statement are fully explained in the answer which we have filed to your complaint in that action.
Recently your attorneys have advised our attorneys that you expected voluntarily to pay said judgment and then recover from us the amount so paid by you. We reiterate our notice to you not to pay said judgment or any part thereof. We hereby offer to defend, at our expense, you and the said property against any liability for the satisfaction of said judgment, or any part thereof, and we hereby assert the right and demand the privilege of thus defending you and said property against any such alleged liability on account of said judgment.
We are sending a duplicate of this letter to your attorneys Messrs. Joseph, Haney and Littlefield and John C. Veateh.
Messrs. Joseph, Haney & Littlefield and John C. Veatch
Very truly yours,
(Sgd) J. P. 0 ’Brien
(Sgd) Annie L. 0 ’Brien
Yeon Building,
Portland, Oregon.”
The allegations of the answer to the first amended complaint, referred to in said notice are the same in substance as the allegations in defendant’s answer to the second amended complaint. Plaintiff made no reply to the notices above set forth and did not offer or tender to the defendants the privilege of defending the plaintiff and/or his said property against liability for the satisfaction of said judgment or any part thereof, and did not file or cause to be filed any suit, action or proceeding to determine whether plaintiff or his said property was liable for the satisfaction of said judgment or any part thereof.
On February 5, 1930, plaintiff paid to Harry L. Raffety the sum of $2,500, and in consideration thereof said Harry L. Raffety executed a release which (omitting acknowledgment) read as follows:
“Partial Release of Judgments
“Know all Men by These Presents that Harry L. Raffety, the undersigned, in consideration of the sum of $2500.00 to him paid by Frank DeCarli, does hereby release the following described property in Multnomah County, State of Oregon:
‘ ‘Lots 1, 2, 3, 4, and 5, Block 1, Goodmorning Addition to East Portland, in the City of Portland from the lien of the certain judgments docketed in the State Circuit Court on the 5th day of November, 1924, and on the 6th day of March, 1932, in Docket 20 page 209 and Docket 24 page 132, respectively, in an action entitled E. R. Stark, et al vs. Coe A. McKenna, et al., one for $4500.00 $165.35 costs and one for $4666.35,6% from 6 November, 1924. $486.60 Supreme Court costs, which said judgments were duly assigned to Harry L. Raffety. “In Witness Whereof, the said Harry L. Raffety has herewith set his hand and seal this 5th day of February, 1930.
Harry L. Raffety.”
That prior to the payment of said $2,500 and the execution of said release, said Harry L. Eaffety had threatened that he would cause execution upon said judgments to be issued and levied upon the premises described in said release, but no levy was in fact made upon said premises or any part thereof. That the payment of said sum of $2,500 was made by plaintiff on February 5,1930, and after receipt of the notices mentioned in paragraph 9 of this stipulation. On October 18, 1930, said Harry L. Eaffety received and acknowledged full satisfaction of the balance then due upon the judgment assigned to him as aforesaid.
That neither the defendants J. P. O ’Brien and Annie L. O’Brien or either of them have paid the judgments herein mentioned or any part thereof, although plaintiff has requested the defendants to pay said judgments and to remove said encumbrance, nor have said defendants, or either of them, paid to plaintiff any sum whatever on account of said judgments although plaintiff has requested defendants to reimburse him for the sums expended by him.
In plaintiff’s second amended complaint damages are sought in said sum of $2,500 and interest thereon from the 5th day of February, 1930.
Defendants’ answer presents the defense of alleged failure by plaintiff to minimize his damages, and the defense that the release of the title insurance company released defendant from liability on his covenant.
It is also urged by defendant that in order to warrant a recovery of substantial as distinguished from nominal damages it must be shown that payment by-plaintiff to remove the encumbrance was made under compulsion and that this is not shown herein.
Defendant invokes the rule that where land subject to a general judgment is conveyed by the judgment debtor in separate tracts and to different persons, the judgment creditor, if he is obliged to resort to an execution, must satisfy his judgment by a sale of the tracts conveyed in the inverse order of their alienation:
Knott v. Shaw,
5 Or. 482;
State of Oregon v. Munds, 7
Or. 80, 82;
Oliver v. Wright,
47 Or. 322 (83 P. 870);
National Savings Bank v. Creswell,
100 U. S. 630, 640 (25 L. Ed. 713).
Based upon this rule, defendant urges that plaintiff failed to minimize his damages by failing to institute proceedings to require the assignee of the judgment creditor to realize the amount of his judgment from other property than the property in suit in the inverse order of its alienation.
As a general rule, it is the duty of one injured, because of a breach of contract, to minimize the damages as far as he may reasonably do so. This rule, however, is not applicable to every case:
Phelps v. Connellee,
285 S. W. 1047;
Cameron Co. Water Imp. Dist. v. Gregory,
291 S. W. 938, 939;
Montgomery Bank & Co. v. Kelly,
202 Ala. 656 (81 So. 612);
Pratt Consol. Goal Co. v. Vintson,
204 Ala. 185 (85 So. 502, 503) ;
Reichert v. Spiess,
203 App. Div. 134 (196 N. Y. S. 466, 470).
A covenant against encumbrances is a contract of indemnity. Where one, who is bound to indemnify another, points out to the latter how he may avoid the loss, such other is not bound to resort to such means where the indemnitor had an equal opportunity to avail himself of them:
Dubois v. Hermance,
1 N. Y. Sup. Ct. 293 (Thompson & Cook) affirmed in 56 N. Y. 673. It is obvious that if the defendant has a right and an oppor
tunity to perform Ms contract, lie cannot be heard to say that plaintiff might have performed for him: 17 C. J., Subject, Damages, p. 774, § 99, note 46, citing
Ash. v. Soo Sing Lung,
177 Cal. 356 (170 P. 843);
Louisville & Etc. Ry. Co. v. Moore,
106 Ind. 600 (5 N. E. 413).
It is urged by defendant that defendant could not maintain the requisite proceeding to require the assignee of the judgment creditor to realize the amount of Ms judgment from the various parcels of property affected by its lien in the inverse order of alienation, because defendant had parted with all interest in the property.
The weight of authority, and the better reasoning, support the principle that the vendor, who has conveyed land with covenants of warranty may secure injunctive relief against a sale upon execution where such sale would create a cloud on the purchaser’s title: 23 C. J. 571, § 480, note 59, citing
McCulloch v. Hollingsworth,
27 Ind. 115;
Bach v. Goodrich,
9 Rob. (La.) 391;
San Bernardo Townsite Co. v. Hocker,
176 S. W. 644;
S. K. McCall Co. v. Page,
155 S. W. 655;
Huggins v. White,
7 Tex. Civ. App. 563 (27 S. W. 1066);
Jackson Milling Co. v. Scott,
130 Wis. 267 (110 N. W. 184);
May v. Granger,
224 Ala. 208 (139 So. 569);
Chamblin v. Slichter,
12 Minn. 276;
Ely v. Wilcox,
26 Wis. 97;
Pier v. Fond du Lac Co.,
53 Wis. 421 (10 N. W. 686);
Hartford v. Chipman,
21 Conn. 488;
Sutliff v. Smith,
58 Kan. 562 (50 P. 455);
Jackson v. Kittle,
34 W. Va. 207 (12 S. E. 484);
Remer v. Mackay,
35 Fed. 86.
TMs court has recognized that the rules which govern common law must govern as to the admimstration of tMs equitable jurisdiction in our courts:
O’Hara v. Parker,
27 Or. 156, 170, 171 (39 P. 1004).
The following cases announce a contrary doctrine:
Howard v. Walsh, 28
La. Ann. 847, 848;
Kelly v. Wiseman & Hinson,
15 La. Ann. 661, 662;
Townsend v. Goelet,
11 Abb. Pr. (N. Y.) 187;
Bissell & Adams v. Kellogg,
60
(N.
Y.) Barb. 617. These four eases last cited and others are reviewed in
Pier v. Fond du Lae County,
supra.
Townsend v. Goelet,
supra, is not one in which the plaintiff was a covenantor under general warranty against encumbrances.
The proceeding, which, under the foregoing authorities was available to defendant, is in the nature of a bill quia timet (“hence he fears”).
“Bills quia timet are in the nature of writs known at the common law as brevia anticipantia, or writs of prevention, to accomplish the ends of precautionary justice. They are ordinarily applied to prevent wrongs or anticipated mischief, and not merely to redress them when done. The party asks the aid of the court because he fears some future probable injury to his rights or interests, and not because an injury has already occurred which requires compensation or other relief.”
Roman Catholic Archbishop v. Shipman,
69 Cal. 586 (11 P. 343) ; Story Equity Jurisprudence 826; Willard Equity Jurisprudence 393.
While the greater number of these authorities deal with cases wherein an execution has issued, certainly, in equity, there is no distinction between the actual issuance thereof and a threat to cause an execution to issue. Such a threat is shown in the case at bar. Moreover, the removal of a cloud upon title is sanctioned:
Ely v. Wilcox,
supra;
Pier v. Fond du Lac County,
supra;
Hartford v. Chipman,
supra.
“Courts of equity have inherent jurisdiction of actions to prevent or remove clouds on title to land, and have constantly exercised it from a very early period. But unless it was made to appear that the cloud com
plained of was an apparent incumbrance of the land, rendering resort to evidence aliunde the record necessary to show that it was invalid, the court would refuse relief. Moore v. Cord, 14 Wis. 213; Gamble v. Loop, id, 465.
The remedies given in such actions are broad and ample. To give effectual relief, the court will decree the reformation, surrender or cancellation of deeds and other instruments affecting the title, or the reformation or cancellation of records and the execution of deeds or releases; in short, it possesses power to decree adequate relief, and to enforce full execution of its judgment.”
Pier v. Fond du Lac,
38 Wis. 470, 479, 480.
In principle there is no distinction between the remedy under consideration in the case at bar, namely an equitable proceeding requiring the owner of the judgment to recover thereon from other tracts in the inverse order of alienation and enjoining him from levying upon plaintiff’s tract until such other means of recovery have been exhausted; and a suit to protect a homestead to the extent of $2,000 from a levy by a judgment creditor. In the latter case, neither the issuance of an execution nor a threat to do so is an essential prerequisite to such a cause of suit:
Corey v. Schuster,
44 Neb. 269 (62 N. W. 470);
Birles v. Globe International Protective Bureau,
56 N. D. 613 (218 N. W. 864);
Klemmens v. First Nat. Bank of Cassopolis,
22 N. D. 304 (133 N. W. 1044).
As stated, defendant urges that the payment by the title insurance company of $300 to plaintiff and the release of said insurance company by plaintiff, as evidenced by the written release above set out, had the effect to release defendant from liability upon his covenant of warranty.
This case must be distinguished from those cases where an agreement is shown between the beneficiary
named in the policy of insurance and the person paying the premium to the effect that the latter shall have the benefit of the indemnity given by the insurer. There is no such agreement shown herein. The “policy insured plaintiff against loss or damage on account of any defect in the title to said premises and also insured plaintiff against any loss on account of any and all liens and encumbrances existing on or against said premises at the time of said conveyance”.
“Where the liability of a party is fixed by contract or by statute, courts will not resort to equity to either enlarge or defeat them.”
S. W. Ins. Co. v. Pac. Coast Casualty. Co.,
92 Wash. 654 (159 P. 788).
In this state of the record, the settlement by the insured with the insurer did not release defendant from liability because of the breach of defendant’s covenant against encumbrances.
Defendant calls attention to the case of
Barnes v. Mott,
64 N. Y. 398 (21 Am. Rep. 625), and suggests that there the court held that by analogy the rules of surety-ship should have been applied as between the judgment debtor’s grantee and the surety on the appeal bond, although they were not co-obligors and their liabilities arose from wholly dissimilar relationships; and hence, by analogy, we should apply the rules of suretyship as between the judgment debtors’grantee and the insurance company whose policy is in favor of plaintiff only.
In the ease of
Barnes v. Mott,
supra, the judgment was secondary to a mortgage upon the demised premises, the grantee in ignorance of the judgment, discharged the mortgage; an appeal from the judgment was prosecuted and, after affirmance, the holder of the judgment released the sureties upon the appeal bond from the lien of said judgment. The court restored the
mortgage and reinstated it as a lien on the mortgaged premises prior and paramount to the lien of the judgment. The court also held that the discharge of the sureties on appeal was in equity a discharge of the grantees’ (plaintiffs’) property from the lien of the judgment. We quote from the opinion in that case:
“The sureties upon the appeal intervened as volunteers, and by their interposition got time for the principal debtor to the prejudice of the prior sureties and of the plaintiffs, whose lands were bound for the judgment, and they must be considered in equity as in the same condition as any other sureties, voluntarily undertaking for the payment of the judgment. Their obligation inured to the benefit not only of the creditors, but of any and all who had become before them in any way sureties for the payment of the debt.”
The instant case is an action at law and the insurance company cannot be considered as in the same condition as any other sureties. Its liability, under the statement of facts, was confined to plaintiff’s claim of loss, and no claim in favor of defendant or any other person except plaintiff’s upon the policy, as described in said stipulation of facts, could be maintained.
A contract guaranteeing a title is one of insurance rather than of suretyship, so that it is governed for purposes of construction by the rules applicable to other insurance contracts: Yol. 1, Cyc. of Ins. Law (Couch), §49, note 5, citing
Minn. T. I. & Tr. Co. v. Drexel,
17 C. C. A. 56 (36 U. S. App. 50, 70 Fed. 194);
Stensgaard v. St. Paul Beal Estate Title Ins. Co.,
50
Minn.
429 (52 N. W. 910, 17 L. R. A. 575);
N. Y. Trenton Potteries Co. v. Title G & Tr. Co.,
50 App. Div. 490 (64 N. Y. Supp. 116) (see, also, 176 N. Y. 65, 68 N. E. 132);
Wheeler v. Beal Estate T. Ins. & Tr. Co.,
160 Pa. 408 (28 Atl. 849).
It is a settled principle of procedural law in this state that where an insurer pays a loss under a policy of insurance in a less amount than the insured’s loss, the insurer and insured jointly may maintain an action at law against a wrongdoer, who negligently caused the loss:
Firemen’s Ins. Co. v. Oregon Railroad Co.,
45 Or. 53 (76 P. 1075, 67 L. R. A. 161, 2 Ann. Cas. 360);
Rorvik v. North Pac. Lum. Co.,
99 Or. 58, 84 (190 P. 331, 195 P. 163);
Olds v. Von der Hellen,
127 Or. 276, 293 (263 P. 907, 270 P. 497);
Salzwedel v. Pinkley,
140 Or. 671, 673 (15 P. (2d) 718).
Defendant did not object to the omission to make the insurance company a party and thereby waived his right so to do:
Olds v. Von der Hellen,
supra; section 1-609, Oregon Code 1930.
It is urged that in order to warrant a recovery of substantial, as distinguished from nominal damages, it must be shown that the payment to remove the encumbrances was made under compulsion.
To this point, defendant cites note 44 A. L. R. 410. There, the general rule is stated as follows:
“Though a covenant against encumbrances is said to be a covenant in praesenti, breached as soon as made if breached at all, it is a uniform rule at law (though not in equity, see infra III b), that if the breach is the existence of a mortgage, judgment or other money lien against the premises, nominal damages only are recoverable, as for a technical breach, so long as the encumbrance remains undischarged and unenforced; in other words, no actual damages arise in favor of the covenantee merely because of the existence of such an encumbrance, until he has actually paid it off, either voluntarily or under compulsion, to save the property from forced sale, or been evicted because of it.”
This clearly indicates that a voluntary payment will support a recovery of the amount paid.
Moreover, the foregoing stipulation of facts discloses that the holder of the judgment threatened to issue execution thereon and in the foregoing letter of January 30,1929, defendant expressly declined to admit a liability because of the existence of said judgment.
The payment by the insurance company to plaintiff of $300 is an admitted fact in the case. By admitting the payment and failing to join the insurer as co-plaintiff, plaintiff waived the right to recover in this action the amount thus paid by the insurer. Plaintiff is bound by his admission respecting insurance, and the court should not deny defendant the benefit thereof:
Olds v. Von der Eellen,
supra. In awarding damages to plaintiff, the sum thus paid to plaintiff by the insurance company should be deducted from the amount plaintiff paid to remove the encumbrance upon his title.
It is ordered that the judgment of the circuit court be reversed and that this cause be remanded to said court with instructions to enter a judgment in favor of plaintiff against defendant, J. P. O’Brien, in the sum of $2,200 with interest thereon from the 5th day of February, 1930, at the rate of 6 per centum per annum and for plaintiff’s costs and disbursements in the circuit court and in this court.
Campbell, C. J., and Bailey, Belt and Rossman, JJ., concur.
Rand and Bean, JJ., dissent.