[Alabama Great Southern Railroad Co. v. Burgess.] or with a knowledge of which he was chargeable, the inevitable or probable consequences of his conduct would be to inflict injury, and with reckless disregard of the consequences of such conduct, he committed the act or omitted to do his duty to avoid the threatened injury.—A. G. S. R. R. Co. v. Hall, 105 Ala. 599. There must be evidence tending to show such negligence "as implies a willingness or a purpose to inflict the injury complained of-a consciousness that the unwarranted conduct will inevitably or probably lead to wrong and injury.”—K. C., M. &. B. R. R. Co. v. Crocker, 95 Ala. 433; L. & N. R. R. Co. v. Markee, 103 Ala. 160; Ga. Pac. Ry. Co. v. Lee, 92 Ala. 262. DORTCH & MARTIN, contra.-The demurrer to the 5th count was well taked.-Oxford Lake Line v. Stedham, 101 Ala. 378; Ga. Pac. R. Co. v. Davis, 92 Ala. 307; Mary L. C. & R. Co. v. Chambliss, 97 Ala. 174; Ensley R. Co. v. Chewning, 93 Ala. 24; L. & N. R. R. Co. v. Hawkins, 92 Ala. 244; M. & O. R. R. Co. v. George, 94 Ala. 214. The charges given at the request of plaintiff asserted correct propositions.-L. & N. R. R. Co. v. Markee, 103 Ala. 160; L. & N. R. R. Co. v. Black, 89 Ala. 317. COLEMAN, J.-The complaint upon which the cause was finally submitted to the jury contained four counts, numbered two, three, four and five. The second and fourth counts aver that the injury which caused the death of plaintiff's intestate was willfully or wantonly inflicted. The third and fifth counts aver no more than simple negligence. We declared what constitutes willful injury, and its legal equivalent, wanton injury, in the cases of Ga. Pac. R. R. Co. v. Lee, 92 Ala. 262; K. C., M. & B. R. R. Co. v. Crocker, 95 Ala. 433; L. & N. R. R. Co. v. Markee, 103 Ala. 160; A. G. S. R. R. Co. v. Hall, 105 Ala. 599; L. & N. R. R. Co. v. Anchors, 114 Ala. 492; A. G. S. R. R. Co. v. Burgess, 114 Ala. 587. We think it unnecessary to do more than to cite these authorities. The third and fifth counts would more clearly show simple negligence, if instead of averring that such "care and diligence might have avoided her injury," the pleader had charged that such care and diligence would have avoided the injury. The trial court proceeded on the assumption, that the third and fifth counts averred [Alabama Great Southern Railroad Co. v. Burgess.] a willful and wanton injury. The definition of "wanton, willful or intentional negligence" given to the jury by the court in charges numbered six and seven, was not in accordance with the decisions we have cited, and was erroneous; the phraseology of the seventh was calculated to mislead the jury in this respect. The correction of this error will enable the court to avoid others on another trial. A trial court is not required to give charges which have been given, and a mere immaterial variation of words does not change the rule. Many of the rulings of the court assigned as error were disposed of in the cause of the A. G. S. R. R. Co. v. Burgess, recently decided (114 Ala. 587), the plaintiff having been injured at the same time and by the same cause which gave rise to the present action, and we need not repeat here what was there said. Damages recoverable under section 2589 are entirely punitive and to prevent homicides. Evidence of loss of services, or mere pecuniary loss, and evidence of mental suffering on the part of the parents of the deceased child, are immaterial and irrelevant.-Buckalew v. Tenn. Coal, Iron & R. R. Co., 112 Ala. 146; K. C., M. & B. R. R. Co. v. Sanders, 98 Ala. 293; Richmond & Danville R. R. Co. v. Freeman, 97 Ala. 289; Savannah & Memphis R. R. Co. v. Shearer, 58 Ala. 672. The deceased was an infant about three years of age. If death had not resulted and the action had been brought by the infant, neither the contributory negligence of the infant, nor that of her parents, would have been available as a defense to the action.-Pratt Company v. Brawley, 83 Ala. 371; Government Street Railroad Co. v. Hanlon, 53 Ala. 70; M. & M. R. Co. v. Crenshaw, 65 Ala. 566. The rule is otherwise as to the contributory negligence of the parent where the action is brought under section 2588 by the parent to recover pecuniary compensation.-Williams v. S. & N. A. R. R. Co., 91 Ala. 635; A. G. S. R. R. Co. v. Dobbs, 101 Ala. 219. That the plaintiff may have been guilty in exposing himself to danger can not be pleaded as a defense to a complaint which counts on the negligence of the defendant in not observing due care after the discovery of the peril of plaintiff. To such a complaint there must be subsequent contributory negligence. The plea of the [Flowers, et al. v. Jernigan.] general issue puts in issue the alleged negligence of such complaint. For the errors noted, the case must be reversed and remanded. Reversed and remanded. Flowers, et al. v. Jernigan. Statutory Action of Ejectment. 1. Tax deed; must be acknowledged by probate judge before it he comes operative as a conveyance.-A tax deed to land sold for taxes and executed in 1884, before it is operative as a conveyance of title, it must, in accordance with section 460 of the Code of 1876, which was then in force, have been acknowledged by the probate judge and recorded in the proper record of titles to real property. 2. Same; same; admissibility of such deed in evidence.-Before a deed of a probate judge executed in 1884 to the purchaser of lands sold for delinquent taxes is prima facie evidence of the facts therein recited, as provided by section 460 of the Code of 1876, which was then in effect, it must have been executed by the probate judge and acknowledged and then recorded; and a deed executed by the probate judge and recorded without the acknowledgment, is not rendered valid by being acknowledged after its registration, and not again recorded, and such deed is not admissible in evidence as a conveyance of title to the lands described therein. 3. Sale of land for delinquent taxes; limitations of action.-The limitation prescribed as a bar to actions for the recovery of lands sold for delinquent taxes, does not begin to run until the deed to the purchaser by the probate judge is legally executed and recorded. 4. Same; effect of quit-claim deed.-Where a purchaser of land sold for delinquent taxes obtains the tax collector's certificate of purchase, which he afterwards assigns to another to whom is executed by the probate judge a void deed, a quit-claim deed from the original purchaser to the holder of the tax deed is ineffective to convey any title to him; it being shown that the grantor in the quit-claim deed had no other title or connection with the land, except that he was the bidder and purchaser at the tax sale. APPEAL from the Circuit Court of Coffee. Tried before the Hon. J. M. CARMICHAEL. This was a statutory action of ejectment, brought originally by the appellee, H. R. Jernigan, against the [Flowers, et al. v. Jernigan.] appellant, Luke Flowers, to recover the possession of certain lands specifically described in the complaint. The appellant, A. J. Arnold, was, on his own motion, made a party defendant as the landlord of Luke Flowers. The plaintiff, to establish title to the land sued for, relied upon a tax sale of the land to one George P. Roberts, a transfer of the certificate of the tax collector, a quit-claim deed from Roberts to D. W. Jernigan, a tax deed from the judge of probate to D. W. Jernigan, and a deed from D. W. Jernigan and wife to the plaintiff. The tax sale was made by the collector on April 3, 1876, for the taxes due for the year 1875. The quitclaim deed from George P. Roberts to D. W. Jernigan was executed on August 8, 1881. After Roberts transferred his certificate of purchase at the tax sale to D. W. Jernigan, the judge of probate of the county executed a deed to said Jernigan conveying the lands sued for, which deed bore date March 31, 1884. This deed as filed was recorded on the day of its execution. The plaintiff offered to introduce this deed in evidence, and there was attached thereto the certificate of acknowledgment given by the justice of the peace, which certificate bore date August 17, 1885. The defendants objected to the introduction of this deed in evidence, upon the ground that it was not witnessed, and there was no certificate upon it that relieved it of the necessity of being witnessed, and because the certificate of acknowledgment does not show that it was acknowledged by the judge of probate as required by law. The deed was not filed for record after the certificate of acknowledgment was made by the justice of the peace. The court overruled the defendants' objection to the introduction of said deed in evidence, and to this ruling the defendants duly excepted. The plaintiff introduced in evidence the quit-claim deed from D. W. Jernigan and wife to himself conveying the lands sued for, which deed was executed October 9, 1889. D. W. Jernigan, as a witness, testified that when he bought the land from George P. Roberts there was no other person in possession of the land, and that Roberts put him in possession thereof. This witness further testified, upon cross-examination, that he did not know that Roberts was ever in actual possession of the land, VOL. 116, [Flowers, et al. v. Jernigan.] The plaintiff, as a witness, testified that if George P. Roberts was ever upon the land he did not know it. The defendant, A. J. Arnold, based his right of possession to the land upon a conveyance which was executed by one John Cockron to Allen Arnold in the year 1857, and upon a deed which was executed by Allen Arnold to the defendant on May 26, 1886, in both of which conveyances was included the lands here sued for. The testimony for the defendants tended to show that immediately after the execution of the conveyance from Cockron, who was then in possession of the land, to Allen Arnold, the latter went into possession thereof and so remained until the execution of the deed to the defendant, who had ever since been in possession of the land. Among the charges requested by the defendants, and to the refusal to give each of which the defendants separately excepted, was the following: "If the jury believe the evidence in this case they should find for the defendants." There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved. P. N. HICKMAN, for appellant, cited Code of 1876, § 460; Bolling v. Smith, 79 Ala. 535. R. L. HARMON, contra, cited Driggers v. Cassady, 71 Ala. 529; Pugh v. Youngblood, 69 Ala. 296. HEAD, J.-We are constrained to hold that the tax deed of the judge of probate to D. W. Jernigan, dated March 31, 1884, purporting to have been executed in pursuance of a sale of the land by the tax collector on the first Monday in April, 1876, for the payment of taxes for the year 1875, was improperly admitted in evidence. The deed, as we have said, bears date of execution March 31, 1884; it was recorded the same day; but, it was not acknowledged at all until August 17, 1885, and was not thereafter recorded. Its legal effect, as a conveyance, is governed by section 460 of the Code of 1876, then in operation. That section provides as follows: "The deed shall be signed by the probate judge in his official capacity, and acknowledged by him before some officer |