text:
Charter Oak Life Insurance Company v. Rodel

ERROR to the Circuit Court of the United States for the Eastern District of Missouri.

This was an action on a policy, issued by the Charter Oak Life Insurance Company, upon the life of Emil G. Rodel, for the benefit of his wife, the plaintiff below. The policy was dated June 25, 1873, and contained a promise to pay to the plaintiff, 'for her sole and separate use and benefit, ninety days after due notice and satisfactory evidence of the death of the said Emil G. Rodel and of the just claim of the assured (or proof of interest, if assigned or held as security), under this policy, has been received and approved by the company.' It further contained, among other conditions, the following: that, in case the said Emil G. Rodel should 'die by his own hand,' the policy should be void. It was conceded that he died on the fifth day of December, 1873, from the effects of poison administered by his own hand; and this fact was set up in the answer, by way of defence: but the plaintiff in her replication averred that he was insane at the time, and not in possession of his mental faculties, and and not responsible, in consequence, for his act; and denied that he committed suicide or died by his own hand, within the meaning and intention of the policy. Whether the deceased was insane or not when he took the poison was the principal issue in the cause. The company, however, in its answer, made another issue, by denying that it had ever received due notice and satisfactory evidence of the death of Rodel and of the just claim of the plaintiff under the policy; averring that the only proof and notice it had received from the plaintiff of Rodel's death, and of her claim under the policy, had been and was to the effect that 'said Emil G. Rodel committed suicid at about 6.35 o'clock, P.M., Friday, Dec. 5, 1873, in a saloon on north-east corner of Eleventh and Market Streets, in the city and county of St. Louis., Mo., by taking poison,' as appeared from the certificate of the coroner accompanying and making part of said notice and proof received by the company, without any other proof of the death or of the circumstances thereof. The plaintiff in her replication averred, as she had done in her petition, that due notice and proof of his death and of her claim had been given, according to the terms of the policy.

On the trial, the plaintiff first put in evidence the policy, and the proofs of death which had been served on the company. The latter were in the usual form, but accompanied by the coroner's certificate, stating the cause of death as alleged in the answer. They were objected to as insufficient, the company contending that, by the policy itself, satisfactory notice and proof of death and of the just claim of the assured was a condition precedent to the right of demanding payment, and, consequently, to the right of bringing suit on the policy.

The court overruled the objection and admitted the evidence, and the company excepted.

There was a verdict and judgment for the plaintiff for $5,130; whereupon the company brought the case here.

The other facts in the case, and the instruction given and those refused, are set forth in the opinion of the court.

Mr. Samuel Knox for the plaintiff in error.

The proofs of death and of the claim of the plaintiff below, furnished the company, are wholly insufficient to charge it in this action. The requirements of the policy in that respect are a condition precedent, and must be strictly complied with. Bliss, Life Ins. (2d ed.), sect. 257; May, Ins., sect. 465; O'Reilly v. ''Guardian Mut. Life Insurance Co., 60 N. Y. 169; Taylor v. AEtna Life Insurance Co., 13 Gray (Mass.), 434; Woodfin v. Asheville Mut. Life Insurance Co., 6 Jones (N. C.), L. 558; Columbia Insurance Co. v. Lawrence'', 2 Pet. 25; Campbell v. Charter Oak Fire and Marine Insurance Co., 10 Allen (Mass.), 213; Edgerly v. Farmers' Insurance Co., 43 Iowa, 587; Johnson v. Phoenix Insurance Co., 112 Mass. 49.

The plaintiff herself notified the defendant that the insured died by his own hand; yet she failed to furnish with the preliminary proofs, as to her just claim under the policy, the slightest evidence that at the time of the suicide he was so far insane as to relieve his act from the consequences provided in the policy.

The company was therefore justified in refusing to pay, upon evidence neither satisfactory nor sufficient to show any thing except that the company was not liable upon the policy, and that the suit could not be maintained. Insurance Company v. Newton, 22 Wall. 32; Campbell v. Charter Oak Fire and Marine Insurance Co., supra; Braunstein v. Accidental Death Insurance Co., 1 B. & S. 782; 1 Greenl. Evid., sect. 2.

The court erred in refusing to direct a verdict for the defendant at the close of the plaintiff's case. 2 Greenl. Evid., sects. 372, 373; Bliss, Life Ins. (2d ed.), sect. 367; 2 Bishop, Cr. Proc. (2d ed.), sects. 669-673; Coffey v. Home Life Insurance Co., 35 N. Y. Sup. Ct. 314; Weed v. Mutual Benefit Life Insurance Co., id. 386; Knickerbocker Life Insurance Co. v. Peters, 42 Md. 414; Merritt v. Cotton States Life Insurance Co., 55 Ga. 103; McClure v. ''Mut. Life Insurance Co.'', 55 N. Y. 651; Ray, Med. Jur. of Ins. (5th ed.), sect. 488; 2 Taylor, Med. Jur. (2d ed.) 637; Phadenhauer v. Germania Life Insurance Co., 7 Heisk. (Tenn.) 567; Fowler v. ''Mut. Life Insurance Co.'', 4 Lans. (N. Y.) 202; Moore v. ''Connecticut Mut. Life Insurance Co.'', 4 Bigl. L. Ins. R. 138; Coverston v. ''Connecticut Mut. Life Insurance Co.'', id. 169; American Life Insurance Co. v. Isett's Adm'r, 74 Pa. St. 167; Borradaile v. Hunter, 5 Sco. N. R. 418; Dufaur v. Professional Life Assurance Co., 25 Beav. 599; State v. Stickley, 41 Iowa, 232; State v. Felter, 25 id. 67, ''Dean v. American Mut. Life Insurance Co., 4 Allen (Mass.), 96; De Gogorza v. Knickerbocker Life Insurance Co., 65 N. Y. 232; Gay v. Union Mut. Life Insurance Co.,'' 9 Blatchf. 142, Hathaway v. National Life Insurance Co., 48 Vt. 335; Equitable Life Assurance Society v. Paterson, 41 Ga. 338; Commonwealth v. Mosler, 4 Pa. St. 264; ''Cooper v. Massachusetts Mut. Life Insurance Co.,'' 102 Mass. 227; Terry v. Life Insurance Company, 1 Dill. 403; Van Zandt v. Mutual Benefit Life Insurance Company, 55 N. Y. 169; St. Louis Life Insurance Co. v. Graves, 6 Bush (Ky.), 268; Insurance Company v. Terry, 15 Wall. 580; Breasted v. Farmers' Loan and Trust Co., 4 Hill (N. Y.), 73; Easterbrook v. Union Mutual Life Co., 54 Me. 224.

Whether there is any evidence, or, if there is, whether it is sufficient to sustain the burden of proof on any issue, is always a question of law for the court. Pleasants v. Fant, 22 Wall. 116; Improvement Company v. Munson, 14 id. 442; Schuchardt v. Allens, 1 id. 359; Commissioners, &c. v. Clark, 94 U.S. 284.

The judgment should be reversed, because of the manifest error committed by the court in refusing the several instructions to the jury requested by the defendant. 1 Greenl. Evid., sect. 2; Insurance Company v. Newton, 22 Wall. 32; Campbell v. Charter Oak Fire and Marine Insurance Co., 10 Allen (Mass.), 213; Braunstein v. Accidental Death Insurance Co., 1 B. & S. 782; Van Zandt v. ''Mut. Benefit Life Insurance Co., 55 N. Y. 169; McClure v. Mut. Life Insurance Co.'', id. 651; Fowler v. Same, 4 Lans. (N. Y.) 202; Merritt v. Cotton States Life Insurance Co., 55 Ga. 103.

The charge of Mr. Justice Miller, in Terry v. Life Insurance Co., 1 Dill. 1, was sustained in 15 Wall. 580, on the ground that it was applicable to the case made by the evidence. But it will not be contended that this court held that such a charge would be proper in every case, or provide the full and complete test of the effect of suicide under all the changing circumstances of each particular case, on policies of life insurance, where, perhaps for the double purpose of rescuing the memory of the dead from obloquy, and of abstracting from the coffers of a corporation a part of its wealth, it is claimed that the deceased came to his death through insanity.

A charge, giving statements of law, however unexceptionable as abstract propositions, is erroneous, if they are not applicable to the case, as they tend to mislead the jury. Clarke v. Dutcher, 9 Cow. (N. Y.) 674; Wardell v. Hughes, 3 Wend. (N. Y.) 418; Beaver v. Taylor, 1 Wall. 637; United States v. Brietling, 20 How. 252; Goodman v. Simonds, id. 343; Dubois v. Lord, 5 Watts (Pa.), 49; Haines v. Stouffer, 10 Pa. St. 363.

Mr. John D. S. Dryden, contra.

The court below did not err in overruling the objection of the defendant to the proofs of death. The court was, in effect, asked to decide, as matter of law, that suicide absolutely avoided the liability of the company, thus determining the whole issue without evidence of the condition of the insured as to sanity or insanity at the time of his death. The court was also asked to decide that it rested with the defendant alone to determine its responsibility, by saying what was or what was not satisfactory proof of death.

No objection was made to the proofs of death other than that they showed that the insured had committed suicide.

The court did not err in overruling the defendant's request to take from the jury the evidence on the question of the insanity of the insured. If there is any evidence, it must go to the jury. Brown v. Lozalere, 44 Mo. 383; Routsong v. Pacific R ilroad Company, 45 id. 236; McFarland v. Bellows, 49 id. 311.

Nor was there error in the refusal of the court to charge as requested by the defendant, or in the charge as given. Life Insurance Company v. Terry, 15 Wall. 580.

MR. JUSTICE BRADLEY, after stating the case, delivered the opinion of the court.


text: Talk:Charter Oak Life Insurance Company v. Rodel

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text:
Charter Oak Life Insurance Company v. Rodel/Opinion of the Court

We think there was no error in the ruling of the court below admitting evidence of the proofs of death, which had been served on the defendant. Of course, the company could not justly contend that it might arbitrarily object to the sufficiency of the proofs; but it had an undoubted right to demand and insist upon such proofs as the law would adjudge to be reasonable and satisfactory. The objection to those furnished was, that, whilst otherwise sufficient as proofs of the death of the insured, they disclosed at the same time a cause of death which exempted the company from liability; and hence could not be said to be sufficient proof of 'the just claim of the assured' as well as of the death of Rodel. It requires but a moment's inspection of the policy to perceive that the clause in question, so far as it requires notice 'of the just claim of the assured,' had reference to her claim or title to the policy, and not to the justness of her cause of action thereon. This is the fair and natural interpretation of the words; but it is placed beyond question by the superadded words which follow in parenthesis.

The entire clause is, 'due notice and satisfactory evidence of the death of the said Emil G. Rodel, and of the just claim of the assured (or proof of interest, if assigned or held as security).' As the question of interest in the policy is not now at issue, it only remains to inquire whether the proofs were sufficient in regard to the death of the insured. Of this, it seems to us, there can be no doubt. Proof of death was all that was required. This was given, and does not appear to have been objected to. If the proofs also disclosed facts of which the defendant could avail itself as a defence to an action on the policy, this would not derogate from the sufficiency of the proofs as proofs of death. But whilst the disclosure of such facts might well suggest to the company the propriety of refusing payment and standing suit, it would be no bar to the bringing of a suit; otherwise, no suit could ever be brought until the parties had gone through an extra-judicial investigation resulting favorably to the assured.

The plaintiff next proceeded to examine witnesses respecting the condition of the deceased's mind at the time of his death; and the evidence is all spread upon the record. When the plaintiff rested, the defendant moved that the jury be instructed to render a verdict for the defendant on the ground that the evidence of the plaintiff was insufficient to sustain a recovery. This motion was also overruled, and an exception was taken. It is hardly necessary to say, that, if there was any evidence tending to prove that the deceased was insane when he took the poison which caused his death, the judge was not bound to, and indeed could not properly, take the evidence from the jury. The weight of the evidence is for them, and not for the judge, to pass upon. The judge may express his opinion on the subject, and in cases where the jury are likely to be influenced by their prejudices, it is well for him to do so; but it is entirely in his discretion. Drakely v. Gregg, 8 Wall. 242; Hickman v. Jones, 9 id. 197; Barney v. Schmeider, id. 248; Brown v. Lozalere, 44 Mo. 383; Roustong v. Railroad Company, 45 id. 236; McFarland v. Bellows, 49 id. 311; Consequa's Case, Pet. C. C. 225; M'Lanahan v. Universal Insurance Co., 1 Pet. 170; Tracy v. Swartwout, 10 id. 80; Gaines v. Dunn, 14 id. 322; Mitchell v. Harmony, 13 How. 131; 9 Pet. 541; 2 id. 137.

Whatever may be our opinion as to the weight of the evidence given by the plaintiff in this case, it cannot be disputed that there was at least some evidence of Rodel's insanity. Besides the tedious and painful details of his conduct, manner, and looks given by his wife and others, evincing great strangeness and total change in his manner, there is this positive testimony of his sister-in-law, Emma Millentz. To the question put to her by the court, 'How did he look and act the last week?' she answered, 'Well, I thought he looked like he was insane.' The court asked her what she meant by that, why she thought so; to which she replied, 'Because he used always to be so kind; when a person came he would get up; he was always gallant and polite, and toward the last he looked straight before him,-staring straight before him; before, he was very pleasant and polite, but towards the last he would not notice anybody when they came in at all; also, he walked entirely different. He looked as if confused in his mind. He did not seem to know what to answer if any person asked him a question.' And on cross-examination she said: 'I mean by insane that he was crazy, and that he always looked straight before him, staring, and before that he had always been happy and joyful. I do not know what to say that I mean by 'crazy.' The other symptoms of being insane or crazy which he manifested were that his whole appearance seemed to be changed, and in his personal habits he seemed to neglect himself. His hair was unkempt, standing on end, and in his attire he was untidy, whereas before he was very accurate in every thing. These are the only reasons I have for for supposing that he was not in his right mind, and because he always looked so straight before him, staring.'

Lewis Baum, another witness, a notary public, who saw Rodel almost every day, testifies that he came into his office about two o'clock of the day on which he died; and he adds: 'The very moment he stepped in I was surprised in seeing him, having known him long before, and knowing that he had always been a very jovial and lively young man; good associate in company. He came in like he was in a great state of excitement. I did not know what it was, though. He had a little business with me, and then he left. Well, he looked to me a different man altogether; he was in a great state of excitement. His eyes looked-well, I cannot describe it now exactly, but he looked like a man who is out of his mind altogether.' And on a rigid cross-examination he adhered to this view: 'the impression he made on me was such that I said to myself,-the impression on me was that that man was not in his right mind.'

Although such testimony from ordinary witnesses may not have great weight with experts, yet it was competent testimony, and expressed in an inartificial way the impressions which are usually made by insane persons upon people of ordinary understanding.

We think there was no error in the refusal of the judge to give the instruction requested.

When the evidence was closed, the defendant's counsel proposed various instructions to the jury. We will pass over those which relate to the alleged insufficiency of notice and proof of death, which have been already considered, and those which were substantially adopted by the judge, or on which no errors have been assigned. The following request and another of substantially the same purport were refused; namely, that the plaintiff could not recover if the assured knew that the act which he committed would result in death, and deliberately did it for that purpose. An additional request was made to charge that a certain letter, written evidently under great excitement by Rodel to his wife on the day of his death, apprising her of his intention to destroy himself, and his reasons for so doing, based upon his pecuniary troubles and anticipated exposures, bore evidence of coolness and deliberation, and, of itself, afforded presumptive evidence of sanity at the time when it was written. This request was also refused.

The judge, after stating that the burden of proving the insanity of the deceased was on the plaintiff, charged the jury as foll ws:--

'It is not every kind or degree of insanity which will so far excuse the party taking his own life as to make the company insuring liable; to do this, the act of self-destruction must have been the consequence of insanity, and the mind of the deceased must have been so far deranged as to have made him incapable of using a rational judgment in regard to the act which he was committing. If he was impelled to the act by an insane impulse, which the reason that was left him did not enable him to resist, or if his reasoning powers were so far overthrown by his mental condition that he could not exercise his reasoning faculties on the act which he was about to do, the company is liable. On the other hand, there is no presumption of law, prima facie or otherwise, that self-destruction arises from insanity; and you will remember a great many jurors were excused from the panel because they thought the law was otherwise; therefore, you will bear in mind that there is no presumption, prima facie or otherwise, that self-destruction arises from insanity; and if you believe from the evidence that the deceased, although excited or angry or disturbed in mind, formed a determination to take his own life, because in the exercise of his usual reasoning faculties he preferred death to life, then the company is not liable, because he died by his own hand within the meaning of the policy.

'If the insured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery; that is, he did die by his own act. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, and when his reasoning faculties are so far impaired that he shall not be able to understand the moral character or the general nature, consequence, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse which he has not the power to resist, such death is not in the contemplation of the parties to the contract, and the insurer is liable.'

The defendant's counsel excepted to the charge thus given.

This charge is in the very words of the charge sanctioned and approved by this court in the case of Life Insurance Company v. Terry, 15 Wall. 580, including an explanatory clause of the opinion of the court in that case. We see no reason to modify the views expressed by us on that occasion. We think, therefore, that there was no error in the charge as given. It follows that the judge properly refused the request to charge that the plaintiff could not recover if the insured knew that the act which he committed would result in death, and deliberately did it for that purpose. Such knowledge and deliberation are entirely consistent with his being, in the language of the charge, 'impelled by an insane impulse, which the reason that was left him did not enable him to resist;' and are, therefore, not conclusive as to his responsibility or power to control his actions.

The omission to charge as requested, with regard to the letter written by Rodel, is subject to the same considerations, and may be dismissed with only this further remark: that persons of most decided insanity often exhibit consistency of purpose, coolness, and even great ingenuity in the pursuit of some insane object to which they are impelled by the diseased condition of mind with which they are afflicted. An inspection of the letter, however, shows that it is pervaded by a very abonormal degree of excitement; and we think the judge did quite right, even on this ground, to decline the unqualified instruction which was requested in relation to it.

This disposes of all the errors assigned by the plaintiffs in error, and our conclusion, therefore, is, that the judgment of the Circuit Court must be affirmed; and it is

So ordered.


text: Talk:Charter Oak Life Insurance Company v. Rodel/Opinion of the Court


text:
Insurance Company v. Have

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. Lawrence Proudfoot for the plaintiff in error.

Mr. Robert Hervey, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Insurance Company v. Have


text: Talk:Insurance Company v. Have

title: Talk:Insurance Company v. Have


text:
Insurance Company v. Have/Opinion of the Court

Policies of fire insurance are contracts whereby the insurers undertake for a stipulated sum to indemnify the insured against loss or damage by fire, in respect to the property covered by the policy, during the prescribed period of time, to an amount not exceeding the sum specified in the written contract. Angell, Fire and Life Ins. 43.

Insurance was effected by the plaintiffs, on the 9th of May, 1870, in the company of the corporation defendant for the term of one year, against loss or damage by fire, to the amount of $3,000, covering the ten buildings therein described, each of which being insured in the sum of $300.

It appears by the bill of exceptions that the policy was in the usual form of policies issued by the defendant, and that it provided that 'if the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property for the use and benefit of the assured, or if the buildings insured stand on leased ground, it must be so represented to the company, and be so expressed in the written part of the policy, otherwise the policy shall be void.'

Two other stipulations are contained in the policy, which it is important to notice: 1. That 'the use of general terms, or any thing less than a distinct specific agreement clearly expressed and indorsed on the policy, shall not be construed as a waiver of any printed or written condition or restriction therein.' 2. That the policy is made and accepted in reference to the foregoing terms and conditions, which are declared to be a part of the contract, and may be used and resorted to in order to determine the rights and obligations of the parties to the policy.

Nothing was expressed in the written part of the policy indicating or tending to indicate that the interest of the insured in the property purporting to be insured was any other than the entire, unconditional, and sole ownership of such property for the use and benefit of the insured, or indicating or tending to indicate that the buildings insured stood on leased ground.

Payment of the alleged loss being refused, the plaintiffs instituted the present suit in the State court, which was subsequently removed into the Circuit Court of the same district, the parties agreeing that the plaintiffs might prove any claim they have under the common counts as if they should add special counts, and that the defendants might prove any defence they have to the action under the general issue the same as if it was set up in a special plea.

Pursuant to that stipulation, the parties went to trial; and the verdict and judgment were for the plaintiffs in the sum of $3,730 damages, with costs of suit. Exceptions were taken by the defendants to the charge of the court; and they sued out a writ of error, and removed the cause into this court.

Neither title-deeds nor evidence of the same was introduced by the plaintiffs; but the defendant admitted at the trial that 'the plaintiffs were owners in fee of the land on which the buildings insured stood' at the time of the fire, as appears by the bill of exceptions. Proofs were introduced by the plaintiffs, admitted by the defendant to be in due form, which showed that the buildings described in the policy were, on Dec. 31, 1870, destroyed by fire, and that the property insured belonged to the plaintiffs, subject to the lease mentioned in the proofs so introduced, to which more particular reference will presently be made. Other evidence was introduced by the plaintiffs, but the defendant offered no evidence; and the court directed the jury to return a verdict in favor of the plaintiffs for the amount of the policy, with interest from the expiration of sixty d ys subsequent to the time the proof of loss was exhibited.

Seasonable exceptions were filed to the charge of the court, upon the ground that the lease mentioned in the proofs of loss show that the plaintiffs were not at the time of the loss the entire, unconditional, and sole owners of the property for their own use and benefit.

Sufficient appears to show that the fee-simple title of the land was in the plaintiffs, and that they were the entire owners of the property destroyed, subject to the lease mentioned in the proofs of loss; and it was admitted by the defendant that the fire caused a total loss of the property, and that the value of the buildings exceeded the amount of the insurance.

By the terms of the lease, referred to in the proofs of loss, it appears that the instrument was for a term of ten years, from May 1, 1868, to May 1, 1878, and that it covered the land on which the insured buildings stood, and the buildings and improvements to be built thereon, having been executed before the buildings were erected, at a rental of $3,500 per annum for the first five years, and $5,976 per annum for the second five years.

Ten buildings were to be erected, to cost not less than $24,000; and the lessor was to pay one-half the amount in instalments, each instalment to be $1,000, and to be paid when the lessee had expended twice that amount in the prosecution of the work. Arrangements of a contingent character are also prescribed in case the lease is continued or determined, and for the basis of adjustment in either event and for payment or repayment as the case may be, which it is not necessary to reproduce in the present case.

Errors assigned material to be noticed are as follows: 1. That be noticed are as follows: 1. That jury to return a verdict in favor of the plaintiffs for the amount of the policy and interest. 2. That the court should have directed the jury to return a verdict the other way, as the law of the case was with the defendant. 3. That the court erred in not submitting the questions of fact to the jury whether the plaintiffs were so far the sole, entire, and unconditional owners of the property insured as to be entitled to recover in view of the evidence.

Authorities to prove that a fee-simple estate is the highest tenure known to the law are quite unnecessary, as the principle is elementary and needs no support; nor is any argument necessary to show that the title of the plaintiffs to the land where the buildings stood was of that character, as that is admitted in the bill of exceptions, which constitutes a part of the record.

Concede that, and it follows that the plaintiffs were, within the meaning of the policy, the entire, unconditional, and sole owners of the land where the buildings stood, for their own use and benefit, at the time of the fire; and, if so, the prima facie presumption must be that they held the title of the buildings by the same fee-simple title, in the absence of any evidence in the case to controvert that conclusion. None certainly was introduced by the defendant, and it is not pretended that there is any thing in the proofs introduced by the plaintiffs so support any different theory, except the lease referred to in the evidence offered to prove the loss.

Land-owners under a fee-simple title, in the absence of any proof to the contrary, are certainly presumed to be the owners of the buildings erected and standing on the premises; the rule being that the buildings and the lands together are known as real estate, and the buildings, where nothing is shown to the contrary, are presumed to be held by the fee-simple owner of the land by the same title as the land on which the buildings are situated, from which it follows that the plaintiffs, being the owners in fee of the same, are also the owners in fee of the buildings, unless there is something in the terms of the lease to disprove that theory; and it is equally clear, that, if they are the entire, unconditional, and sole owners of the buildings as well as of the land, the assignment of erro must be overruled.

Nor is any thing contained in the lease to support any different theory. Instead of that, the lease shows that the plaintiffs were the owners of the land, and that the contractor agreed to erect the ten buildings on the land for the owners; nor does it make any difference that the owners of the land contracted with the builder that they, when the buildings were erected, would lease the same to him for the term of ten years.

Buildings of every kind are frequently erected by land-owners to be rented; nor is it any thing uncommon that the contract for lease should be made before the buildings are erected, or that the contract for a lease should be blended with the contract for erecting the building, as in this case. Leases of the kind are not uncommon; nor is there any thing in the terms of the instrument to countenance the theory that the title of the plaintiffs did not remain as before,-a fee-simple title, as described in the admission of the defendant.

In the words of the contract, the lessee agreed to proceed at once to erect ten buildings on the land therein described, to cost not less than $24,000 for the other party to the instrument, and 'to receive payment for the same at the times and in the manner therein described,' which of itself shows to a demonstration that the buildings when erected became the property of the plaintiffs, as the terms of the instrument called a lease show that the buildings were erected for the plaintiffs on their land, and that they paid the agreed price for their erection. Decided support to that theory is also derived from another clause of the lease, by which the lessee bound himself to insure the buildings during the time employed in their erection, in the name and for the benefit of the plaintiffs, and to deposit the policies in their keeping and possession. Policies were to be taken out and kept in force in the sum of $13,000, in the name and for the benefit of the lessors, during the continuance of the lease, in companies to be approved by the plaintiffs; and the stipulation was that the policies should be deposited with lessors of the property. Other evidence to support the theory of the defendant is entirely wanting, the record showing that they offered no evidence at the trial; and inasmuch as the terms of the lease show that the plaintiffs owned the land in fee-simple, and that they contracted to have the buildings erected and paid for their erection, and caused them to be insured in their own name and for their own benefit, it is clear that the supposed defence that the plaintiffs were not the entire, unconditional, and sole owners of the buildings utterly fails, and that the charge of the court directing a verdict for the plaintiffs is correct.

Attempt is made in this case to maintain the theory that the plalaintiffs are not the entire owners of the property, because it was under lease both when the policy was issued and at the time of the loss, but it is clear that the theory has no foundation in law or justice. Nor can the theory be sustained which attempts to separate the ownership of the buildings from the land, which, it i admitted, is vested in the plaintiffs by a fee-simple title. Such an assumption is contrary to the facts exhibited in the record, and can no more be supported than that the lessees of stores, tenement-houses, or other buildings in our large cities own the same by mere possession or occupancy of the particular store, tenement, or building included in the lease they hold from the owner.

Thousands of cases arise where dwelling-houses, stores, and other buildings of every kind are leased to occupants, for longer or shorter periods of time, and upon still more varying conditions and stipulations, and yet the owners procure insurance upon the same without mentioning the names of the lessees in the policies, or ever suspecting that they have omitted any duty, or been guilty of any concealment or neglect. Insurance companies set up no such pretence; and, if they should do so, they would fi d no support to such a theory in the courts of justice.

Stores and other buildings are sometimes erected upon leased lands by parties who have no title other than what is derived from their lease, which is a very different thing from the case where the owner, both of the land and the building, leases the estate to the occupant for a term of years, without parting with the fee-simple title to the land or the building. Fee-simple ownership in such a case is matter of importance to the insurer, especially if the company is a mutual one, as such companies usually have a lien on the premises for the payment of the premium; nor is the ownership of the land an immaterial matter, even if no such lien arises, as it furnishes an important element to enable the company to determine whether it is expedient to take the risk.

Considerations of the kind, it may be presumed, induced the defendant to insert the condition in the policy of the plaintiffs, 'that, if the buildings stand on leased ground, it must be so represented to the company, and must be so expressed in the written part of the policy, otherwise the policy shall be void.' Nothing of the kind is pretended in this case; and, if it were, it could not be sustained for a moment, as it is admitted in the record that the plaintiffs were the owners in fee of the land where the buildings stood at the time of the fire.

Adjudged cases are invoked to sustain the theory of the defence; but none of those cited support the proposition involved in the theory. Examples of the kind are Gahagan v. Mutual Insurance Co., 43 N. H. 176, and Warner v. Middlesex Insurance Co., 21 Conn. 444, both of which are cases where the insured represented that the property covered by the policy was free and unincumbered, when, in fact, it was incumbered by mortgage. May, Ins., sect. 290; Towne v. Mutual Insurance Co., 7 Allen (Mass.), 51.

Cases are also cited where the insured had only a bond for a deed, or only a leasehold interest, and where the insured procured a policy as the absolute owner of the property in the face of those facts. Atlantic Insurance Co. v. Wright, 22 Ill. 474; Smith v. Mutual Insurance Co., 6 Cush. (Mass.) 448; Brown v. Williams, 28 Me. 252; Hinman v. Hartford Insurance Co., 36 Wis. 167.

Much discussion of such authorities is not required, as it is clear they do not favor the theory of the defendants. Nor does the case of Smith v. Colombia Insurance Co., 17 Pa. St. 253, aid the defendants, as it is clear that, if a mortgagee insures his interest in the premises, he is bound, under a provision calling for incumbrances affecting his interest, to state prior mortgages on the same premises. May, Ins., sect. 293.

Misrepresentations of material facts, of course, avoid a policy; but there were none such in the case before the court. Colombia Insurance Co. v. Lawrence, 10 Pet. 507, cited by the defendant.

Where the policy contained the provision that if the property to be insured is held in trust, or on commission, or is a leasehold interest, or an equity of redemption, or if the interest of the insured in the property is any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the insured, it must be so represented to the company, and be so expressed in the written part of the policy, otherwise the policy shall be void, the Supreme Court of Illinois held, in a case where it appeared that the property had been sold under judgment and execution against the insured, that the non-disclosure of the sale and purchase avoided the policy, though the period allowed for redemption had not expired. Reaper City Insurance Co. v. Brennan, 58 Ill. 158.

By the sale and purchase in that case, nothing was left in the insured but the right of redemption, which would expire in one year from the sale; and it was well held by the court that, the paramount title being in a third person, it could not be truthfully said that the nsured had, at the date of the insurance, 'the entire, unconditional, and sole ownership of the property.'

Beyond all doubt, the property in the case under consideration vested in the lessors; and, if so, the two cases cited by the defendant of Mayor v. Hamilton Insurance Co., 10 Bosw. (N. Y.) 537, and Mayor v. Insurance Company, 9 id. 366, are authorities in favor of the plaintiffs, as the facts in this case show that the property, in the true sense of insurance law, belonged to the insured at the date of the policy. Washington & Atlantic Insurance Co. v. Kelly, 32 Md. 438; Hubbard v. Hartford Insurance Co., 33 Iowa, 333.

Unless the true ownership or interest in the property is required by the conditions of the policy to be specifically and with particularity and accuracy set forth, it will in general be sufficient if the insured has an insurable interest under any status of ownership of possession, in cases where no inquiries are made at the time the application is presented or the policy executed. May, Ins., sect. 284.

No inquiry was made in this case, although it appears that the agent of the company who took the insurance resided in Chicago, where the buildings were situated; nor did the defendant offer any evidence at the trial to show that the unincumbered fee-simple title was not in the plaintiffs at the time the buildings were destroyed by the fire; nor did the defendant request the court at the trial to give the jury any instructions upon the subject. On the contrary, it admitted at the trial that the plaintiffs were the owners in fee of the land on which the buildings insured stood, leaving it to be inferred by the jury that the plaintiffs were also the owners in fee of the buildings.

Enough appears in the terms of the instrument called the lease to show that both the lessee and lessors treated the buildings 'during the process of erection' as the property of the plaintiffs, and to show beyond controversy that the buildings when completed vested in the plaintiffs as their absolute property, subject only to the right of the builder to occupy and use the same, just as in the ordinary case where the owners of property agree to lease the same to be used by the lessee for a stipulated rent.

Lessees holding under an ordinary parol lease do not acquire such an interest in real estate so leased as to avoid a policy issued to the lessor, even though the insured failed to represent the matter to the company in a case where no inquiries were made of the applicant, at the time the policy was issued, as to the true character of the title or occupancy of the insured premises, and where no pretence is shown that the insured has been guilty of any fraud or misrepresentation.

Such a lease is a mere chattel interest, being reckoned as part of the personal estate of the lessee, and in case of the death of the lessee goes to his executors, and not to the heirs-at-law, as appears by all the authorities. 2 Bl. Com. (Cooley's ed.) 143; Ex parte Gay, 5 Mass. 419; Brewster v. Hill, 1 N. H. 351; Bisbee v. Hall, 3 Ohio, 463; Dillingham v. Jenkins, 7 Smed. & M. (Miss.) Ch. 487; Spangler v. Stanler, 1 Md. Ch. 36.

Leases for years, says Taylor, are considered chattel interests arising out of a contract between the parties, and pass only a transient interest in the land, which is not a freehold, and might originally be made at common law by parol for any certain period. Taylor, L. & T. (6th ed.) 22; Moshier v. Reding, 12 Me. 482; Maverick v. Lewis, 3 McCord (S.C..), 211; Carwell v. Dietrich, 15 Wend. (N. Y.) 379; Chapman v. Bluck, 5 Scott, 533; Waller v. Morgan, 18 B. Mon. (Ky.) 141.

Two requisites, says Blackstone, were necessary to make a fief or feud,-1. Duration as to time; 2. Immobility as to place: and he adds, that whatever was not a feud was accounted a chattel.

Chattels real, says the same commentator, are such as concern or savor of the realty, including terms for years, and are called real chattels, as being interests arising out of or being annexed to real estate, of which they have one quality, to wit, immobility, but want the quality of indeterminate duration, the want of which constitutes them chattels. 2 Bl. Com. 386; 2 Kent, Com. (12th ed.) 342; 5 Bac. Abr. (Bouvier ed.) 434; 2 Com. Dig., Biens, a; 1 Chitt. Gen. Pr. 244; Co. Litt. 46, 118 b.

Terms of years belonging to a testator or intestate vest in his executor or administrator without any entry, for the reason that in contemplation of law such interests are chattels. Woodfall, L. & T. (9th ed.) 239; Wollaston v. Hakewell, 3 Man. & G. 297; Atkinson v. Humphrey, 2 C. B. 654; Insurance Company v. Kelly, 32 Md. 421.

Insurers, if they desire to object to such a risk, should make inquiries of the applicant, and should not admit at the trial, without qualification, that the insured was the owner in fee of the land, in a case where they offer no evidence in defence.

Judgment affirmed.


text: Talk:Insurance Company v. Have/Opinion of the Court


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Milner v. Meek

APPEAL from the Circuit Court of the United States for the Southern District of Ohio.

The case presented by this record is in substance as follows:

On the 17th of November, 1870, Abram A. Moore conveyed certain lands in Clinton County, Ohio, to John Milner, Jr. This conveyance, it is claimed, was made to hinder and delay creditors, and is therefore, as to them, void. Dec. 20, 1870, C. M. Walker commenced suit against Moore in the Court of Common Pleas of Clinton County, upon a contract made June 28, 1870; and at the same time caused an order of attachment to be issued under the laws of Ohio, by virtue of which he claimed to have attached as the property of Moore the lands conveyed to Milner. On the 2d of January, 1871, Thomas H. Long sued Moore in the same court, and claimed also to have attached the lands on the 10th of the same month. Jan. 19, 1872, Milner reconveyed the lands to Moore, who thereupon mortgaged them to Milner to secure the payment of a note for $8,295.89, payable, with interest, Dec. 25, 1872, and also to save him harmless against certain specified liabilities which he, as surety for Moore, had incurred. This mortgage was recorded in Clinton County Jan. 22, 1872. Subsequently to this time, sundry judgments were rendered against Moore which are liens upon his equity of redemption in the lands, and, July 13, 1870, he executed a mortgage on them to one Shepherd.

Nov. 23, 1872, Moore was adjudged a bankrupt in the District Court of the United States for the Southern District of Ohio, and, Dec. 23, 1872, William M. Meek was duly appointed his assignee. On the 7th of December, 1872, leave was granted by the bankrupt court to Walker and Long, to proceed to judgment in their suits in the State court, for the purpose of ascertaining the amount which might be proven against the estate. Dec. 31, 1872, the assignee was, on his own application, made a party defendant to each of these suits; and, after trials, judgments were rendered against Moore in both actions.

March 10, 1873, Meek, the assignee, filed in the District Court of the United States for the Southern District of Ohio a petition, as follows:--

'In the District Court of the United States for the Southern District of Ohio.

'In the Matter of ABRAM A. MOORE, Bankrupt. In Bankruptcy.

'William M. Meek, assignee of the estate of Abram A. Moore, a bankrupt, respectfully represents that the said Abram A. Moore was declared a bankrupt Nov. 23, 1872;. . . that the assets of said estate consist of the following described real estate:' (here follows a description of the lands conveyed by the bankrupt to Milner and reconveyed by Milner); 'that upon certain parcels of the land [describing them] the following liens are claimed to exist.'

The liens as claimed are then set out specifically, as follows:

'1. Taxes.

2. Walker's attachment and judgment.

3. Shepherd's mortgage.

4. Long's attachment and judgment.

5. Mil er's mortgage.

6. Judgment in favor of Silas Routh.

7. Judgment in favor of Samuel J. Moore.

8. Judgment in favor of William W. Moore, Jr.

9. An agreement in favor of William Moore, Sen.

10. Judgment in favor of Thomas C. Moore.

11. Judgment in favor of James Patton.'

A statement is then given of the general creditors who have proven their claims, and the whole concludes with a prayer, as follows:--

'Your petitioner, therefore, prays that C. M. Walker, H. A. Shepherd, T. H. Long, John Milner, Jr., J. Silas Routh, Samuel J. Moore, William W. Moore, Jr., William Moore, Sen., Thomas C. Moore, James Patton,. . . [and all the general creditors, naming them], may be made defendants hereto, and that the defendants may be called upon to answer, and that your Honor will order proper steps to be taken for the adjustment of the liens, and that your petitioner may be ordered to sell real estate upon such terms as in the judgment of your Honor seem best for all creditors, and such other relief as may be proper.'

Process in the form of a subpoena was thereupon issued, and served upon all the parties named as defendants; and, April 8, 1873, the court ordered that the petition be referred to one of the registers of the court, with instructions, among other things, 'to hear the testimony adduced by the parties and arguments of counsel, and to determine the priority of liens among the creditors of said bankrupt, and to make a full report to the court of all his findings, together with the evidence produced by the parties on the hearing, and of all such matters transpiring in the premises as might seem to him proper for the investigation of the court.'

April 21, 1873, Walker filed his answer, setting up his claim, and praying that his lien might be established and his judgment paid out of the proceeds of the sale when made. To this answer Meek replied, in substance, denying the lien. On the same 21st April, 1873, Long filed his answer, setting up his claim and judgment, and asserting his lien. He also prayed that his lien might be established and his judgment paid. To this answer Meek replied, denying the lien. Milner also filed an answer and cross-petition in the cause, in which he denied the liens of Long and Walker, set up his mortgage as the first lien, and asked that he might be paid from the proceeds of the sale in preference to any other creditor. To this answer and cross-petition Meek answered, setting forth the conveyance from Moore of Milner Nov. 17, 1870, and averring that it was made upon no consideration, and was void as to creditors. He then set forth the reconveyance and the mortgage, but alleged that there was nothing due upon the mortgage, and that it, too, was fraudulent as against creditors. Walker, Long, and other lien creditors filed answers to the answer and cross-petition of Milner, setting forth substantially the same defences that were contained in that of Meek. To these answers Milner replied. Other lien creditors filed answers to the original petition of the assignee, setting up their respective claims, and asking appropriate relief.

Testimony was taken before the register, who, on the 26th of February, 1874, made his report to the court, transmitting all the testimony taken. He reported against the mortgage of Milner, on the ground that it was fraudulent and void as to creditors. He also reported against the liens of Walker and Long, on the ground that both the attachments and levies were void. He then reported the amounts due the other lien creditors, with their respective priorities, and recommended that the property be sold by the assignee, and the proceeds distributed in the order of precedence as stated by him.

Exceptions were taken to this report by Milner and Long and Walker; and thereupon the cause came on to be heard before the court 'on the petition of the assignee, filed in this court, and the answers and pleadings of all the defendants, filed before James H. Thompson, register, acting as master commissioner, under an order of reference made to him. . . the eighth day of April, 1873,. . . and also upon all the evidence and exhibits produced by all the parties upon the hearing. . . before the register, acting as master commissioner,. . . and also upon the written report. . . of said register acting as said master commissioner; and thereupon all parties interested in the cause appeared,. . . and waived all objections to all informality and irregularity of pleadings and proceedings before said register, except John Milner, Jr., who, in waiving said objections, expressly reserved whatever rights he might have to take additional testimony in his behalf in the event of the register's report, being not confirmed by the court on account of any such informality or irregularity.' Upon this hearing the court decided adversely to the exceptions of Long, Walker, and Milner, and entered a decree, substantially confirming the report. Long, Walker, and Milner were thereupon allowed an appeal to the Circuit Court; and they each in due time perfected their appeals by executing the necessary bond.

Nov. 18, 1874, the following entry in the cause appears upon the journal of the Circuit Court:--

'Now come the several parties in interest,. . . and, waiving any irregularity which might exist in this proceeding by reason of not having been brought on a petition for review instead of by appeal, hereby consent that the transcript of the record of the District Court herein filed be treated as such bill of review, in case it should be held to be necessary.'

The cause was thereupon heard in the Circuit Court, and, Nov. 19, 1874, a decree was entered in that court, as follows:--

'This day this cause came on to be heard on the transcript of the record of the District Court of the United States for the Southern District of Ohio, which was brought into the Circuit Court of the United States for said district upon an appeal from the findings and decrees of the District Court, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged, and decreed that the decree of the said District Court in this cause be, and the same is, in all respects hereby affirmed. And it is further ordered that this cause be, and the same is hereby, remanded to the said District Court for further proceedings to be had therein, in conformity with the opinion of this court. And thereupon the said John Milner, Jr.,. . . prays an appeal to the Supreme Court of the United States, which is allowed by the court.'

The case is now here upon this appeal, and the assignee moves to dismiss—

1. Because no appeal lies to this court from the decrees and orders of the Circuit Court while exercising its supervisory jurisdiction under the bankrupt law; and,

2. Because the other lien creditors who were parties to the proceeding below are not parties to the appeal.

Mr. Stanley Matthews and Mr. J. B. Foraker for the appellant.

Mr. Henry L. Dickey, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Milner v. Meek


text: Talk:Milner v. Meek

title: Talk:Milner v. Meek


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Milner v. Meek/Opinion of the Court

The validity of the first objection to this appeal depends upon whether the proceeding in the District Court is to be treated as a suit in equity or as part of the suit in bankruptcy. If the former, the appeal lies; but if the latter, it does not.

The pleading filed by the assignee was appropriate in form for a petition in the bankrupt suit, but it was equally good in substance as a bill in equity. It contained a complete statement of a cause of action cognizable in equity, and a sufficient prayer for relief. There was no formal prayer for a subpoena, but process was issued and served. All the parties interested appeared, and presented their respective claims by answers, or answers and cross-petitions, with appropriate prayers for relief.

In Stickney v. Wilt, 23 Wall. 150, the petition was in all its essential features like the one in this case. It was filed by an assignee in bankruptcy against lien creditors, entitled as of the bankrupt suit, and addressed to the dis rict judge. Like that in the present case, it contained no formal prayer for subpoena; but there was a prayer for relief, much like the one here.

The several lien claimants appeared, and presented their respective claims by answer. The District Court having directed a sale of the property free of an incumbrance set up by Wilt, he filed in the Circuit Court a petition for review under its supervisory jurisdiction. The Circuit Court reversed the order of the District Court, and sent the case back, with instructions to allow the claim of Wilt, and proceed accordingly. From this action of the Circuit Court the assignee took an appeal to this court, where it was decided that, notwithstanding the form of the petition filed in the District Court, it contained all the essential ingredients of a bill in equity; and, as the subject-matter of the action was one cognizable by the District Court, under that provision of the bankrupt law which gives it jurisdiction of suits at law and in equity in respect to the property of the bankrupt, that court must be presumed, in the absence of any thing appearing to the contrary, to have acted under that jurisdiction when it granted the relief complained of. For this reason, we held that the remedy of Wilt was by appeal to the Circuit Court, and not by petition for review under the supervisory jurisdiction; and that the action of the Circuit Court was irregular and of no effect, because of a want of power to proceed in that way in such a case. As, however, what the court did do was under an assumed supervisory jurisdiction, we did not dismiss the appeal, but sent the case back, with instructions to the Circuit Court to dismiss the petition for review for want of jurisdiction, and suggesting to the District Court the propriety of entertaining a bill of review in equity to correct the errors in the original decree, if any were found to exist.

That case seems to us to be decisive of this, which is clearly one of equitable jurisdiction. The parties expressly waived all errors of form, and asked the court to proceed to a final hearing of all the questions in which they were interested. The court did proceed, and did enter a decree, from which an appeal was allowed and taken to the Circuit Court. In the Circuit Court the parties again stipulated that the court might proceed as upon an appeal, with the understanding, however, that the appeal should be turned into a petition for review in case it appeared to be necessary. It is evident, therefore, that the case in the courts below was not only in substance a suit in equity, but that both the parties and the court treated it as such, and acted accordingly. The proceeding is full of irregularities; but these have all been waived, and both courts below were asked to hear and decide the case upon its merits, without regard to mere form.

We are clearly of the opinion that, under the practice as finally established in this court in furtherance of justice, the case was properly brought here by the appeal.

As to the second objection, it is sufficient to say that the appeal was allowed in open court during the term at which the decree was rendered. No citation was, therefore, necessary. Brockett v. Brockett, 2 How. 241. Milner alone appealed; but his appeal brings up so much of the case and such of the parties as are necessary for the determination of his rights.

The motion to dismiss the appeal is, therefore, denied, and we are brought to a consideration of the case upon its merits. This presents only questions of fact. It is unnecessary to recapitulate the testimony; but, after a careful examination of the whole record, we are satisfied that the conveyance executed by the bankrupt to Milner, Nov. 17, 1870, was void as against creditors, but that the mortgage of the 19th of January, 1872, was executed for a good and valuable consideration, and without fraud, and that it constitutes a valid and subsisting lien upon the property mortgaged as of the date of its record, to secure the payment of such an amount § may appear to be due upon the indebtedness and liability secured thereby.

The decree of the Circuit Court, in so far as it affirms the decree of the District Court declaring the mortgage in favor of Milner fraudulent and void, will be reversed, and the cause remanded to the Circuit Court, with instructions to reverse the decree of the District Court rejecting the lien of that mortgage, and to remand the cause to the District Court with instructions to establish that lien, and to proceed further with the cause as law and justice may seem to require; and it is

So ordered.

title: Milner v. Meek/Opinion of the Court


text: Talk:Milner v. Meek/Opinion of the Court


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Colorado Company v. Commissioners

ERROR to the Supreme Court of the Territory of Colorado.

This suit was brought by the plaintiff in error in the District Court within and for the county of Pueblo, to recover taxes paid by it under protest, July 1, 1874, which had been assessed for the year 1873, on certain lands situate in that county. The judgment rendered in its favor by that court having been reversed by the Supreme Court of the Territory, the cause was removed here by writ of error.

Manuel Armijo, governor of New Mexico, granted, Dec. 1, 1843, to Gervacio Nolan, lands in a part of that province, now constituting Pueblo County, Colorado, which cover by estimate five hundred thousand acres, bounded by mountains and natural objects.

Congress passed an act, approved July 1, 1870, 16 Stat. 646, entitled 'An Act to confirm the title of the heirs of Gervacio Nolan, deceased, to certain lands in the Territory of Colorado.' The first section confirmed the grant to the extent of eleven square leagues. The remaining sections are as follows:--

'SECT. 2. That the exterior lines of said claim of eleven leagues, as confirmed by this act, shall be adjusted according to the lines of the public surveys as near as practicable, but in a compact form, and the claims of all actual settlers falling within the limits of the located claim above referred to shall be adjusted to the extent which will embrace their several settlements upon their several claims being established either as pre-emptions or homesteads according to law, and for the aggregate of the arears [areas] of claims so established under the pre-emption or homestead acts, the heirs of said Nolan, or their legal representatives, shall be entitled to locate a like quantity of public lands, not mineral, according to the lines of the public surveys, and not to exceed one hundred and sixty acres in one section: Provided, that such location shall be made within the bounds of the original grant by the order of Cornelio Vigil to Gervacio Nolan.

'SECT. 3. That it shall be the duty of the Commissioner of the General Land-Office to cause the lines of the public surveys to be run in the regions where a proper location would place the said Nolan claim, and the expense of the same shall be paid out of any moneys in the treasury not otherwise appropriated; but, before the confirmation provided for by this act shall become legally effective, the heirs of the said Gervacio Nolan, or their legal representatives, shall pay the cost of so much of said surveys as inures to their benefit respectively, and that all actual settlers whose claims may be adjusted as valid shall have a right to enter their improvements by a strict compliance with the pre-emption or homestead laws.

'SECT. 4. That upon the adjustment of said claim of the heirs of Gervacio Nolan, according to the provision of this act, it shall be the duty of the surveyor-general of the district to furnish properly approved plats to said claimants, or their legal representatives, which shall be evidence of title, the same to be done according to such instructions as may be given by the Commissioner of the General Land-Office: Provided, however, that when said lands are so confirmed, surveyed, and patented, they shall be held and taken to be in full satisfaction of all further claims or demands against the United States.

'SECT. 5. That, immediately pon running the lines provided for in the second of this act, the surveyor-general of the district shall notify the said heirs of Gervacio Nolan, or their legal representatives, of the fact of such survey being made; and said claimants shall, within three months after notice of such survey, select and locate their said claims according to the provisions of this act, and shall, within said time, furnish the surveyor-general with a description of such location, specifying the lines of the same; and the party failing to make such selection and location, in such manner and within such time, shall be deemed and held to have abandoned their claim, and their rights and equities under this act shall cease and terminate.'

The plaintiff in error acquired all the rights and title of the confirmees to the lands, and, a survey of them having been made pursuant to the act, selected them within the required time and in due form, to the extent, as was then believed, of eleven square leagues. A plat and descriptive list, subject to the revision of the Land Department at Washington, were prepared, and on April 27, 1872, delivered to the surveyor-general of the Territory. Entries of portions of the selected lands by claimants under the homestead and the pre-emption laws, amounting to six thousand five hundred and sixty-five acres, were subsequently approved by the Secretary of the Interior; and the plaintiff was allowed by the Commissioner of the General Land-Office to select, by way of indemnity, other lands within the limits of the original grant. An error was also committed by including nine hundred and twenty acres in excess of eleven square leagues, as, owing to the fact that at the time the plat and list were made the meander line had not been run along the south bank of the Arkansas River, where a portion of the lands were situate, it was impossible to ascertain the exact area of the selected tract. The nine hundred and twenty acres were withdrawn March 9, 1874. On the 30th of January of that year, other lands were selected in lieu of those taken by homestead and pre-emption claimants, and a descriptive list of them delivered to the surveyor-general; but that officer has not furnished either a statement of the cost of the survey or the approved plats required by the act, and the plaintiff in error has not paid any part of such cost.

The taxes in question were duly assessed, if the lands embraced within the preliminary selection of eleven square leagues, after deducting therefrom the nine hundred and twenty acres so withdrawn, and the six thousand five hundred and sixty-five acres so entered, were on the first day of May, 1873, subject to taxation.

Mr. John D. McPherson for the plaintiff in error.

1. The act of Governor Armijo was ultra vires. He had no authority, under the act of the Mexican Congress of 1824 and the regulations of 1828, to grant to one person more than eleven square leagues of public land. United States v. Hartnell's Executors, 22 How. 286; United States v. Vigil, 13 Wall. 450; United States v. Vallejo, 1 Black, 451. The grant of a tract with ascertained boundaries which contains more than ten times that quantity was therefore a nullity, and the title of the plaintiff must be derived from the United States.

2. But the grant, if in any aspect of the case valid pro tanto, did not vest a title to any specific tract of eleven square leagues. Some further official act, severing that quantity of land from the public domain, and subjecting it to the operation of the grant, was indispensable. This was not done by Mexico; and the grantee had, under the treaty or the law of nations, nothing beyond an equitable claim upon our government that eleven square leagues should be set apart to him within the limits of a larger tract. The United States might annex certain conditions precedent to the passing of the title to the lands. In this view, it is perhaps immaterial whether the act be construed as making a grant de novo, o as giving a partial confirmation to an existing but void grant.

3. Payment by the heirs of Nolan or by their representatives of a proportionate part of the expenses of the survey was imposed as a previous and indispensable condition to the enjoyment of the benefits conferred by Congress. Until it was performed, the title to the lands abided in the United States, and they were not subject to taxation by Colorado. Railway Company v. Prescott, 16 Wall. 608; Same v. McShane et al., 22 id. 444.

4. The 'approved plats' have never been tendered to the plaintiff by the surveyor-general, and the act declares that they shall be 'evidence of title.'

5. The organic law of the Territory, 12 Stat. 172, declares that no tax shall be imposed on the property of the United States. The tax in question was assessed, not upon the interest or claim of the plaintiff, but upon the lands themselves. If they were subject to the taxing power of the Territory, they might have been offered to satisfy the tax; and the purchaser at a public sale, held in strict pursuance of law, would have acquired a valid title to them, free from all pre-existing claims of the United States.

Mr. Allen A. Bradford, contra.

1. Congress acted upon the assumption that the grant to Nolan was good for eleven square leagues, to be located within the boundaries of the original claim. The act of 1870 is a distinct recognition of his vested interest in that quantity of lands under an older and paramount title, although they were not specifically described. When the plaintiff made the authorized location, and gave the surveyor-general the requisite descriptive list, the lands were identified as the subject of the grant, and his title relates back to the date of the grant. United States v. Percheman, 7 Pet. 51; Same v. Arredondo, 6 id. 691; Garcia v. Lee, 12 id. 511.

2. The right and title of Nolan were secured and protected by the treaty of Guadalupe Hidalgo. Henshaw v. Bissell, 18 Wall. 255. The grant of Amijo for more than eleven square leagues being void as to the excess, the United States became the owner of part of the lands within it, claiming, as Nolan did, under Mexico. By the selection in the mode prescribed by the act, his representative and the United States were mutually bound and respectively estopped. That selection was perfected before the assessment complained of was made.

3. The fact that some of the selected lands were withdrawn, and others entered by pre-emption and homestead claimants, cannot affect this case. The tax in question was only assessed upon the remainder, reserved with the approval of the Commissioner of the General Land-Office to the plaintiff, which thence-forth ceased to be public land. Wilcox v. Jackson, 13 Pet. 498.

4. The approved plats, which the surveyor-general is required to make out, are only evidence of a prior title. Even a patent, when issued upon the claim of a previously existing title, is only documentary evidence of the existence of that title, or of such equities respecting the claim as justify its confirmation. Langdeau v. Hanes, 21 Wall. 529. A confirmatory act of Congress makes a good title without a patent, Grignom's Lessee v. Astor, 2 How. 319; but, were it otherwise, the laws of Colorado subject to taxation lands entered at private sale or otherwise, 'whether a patent has been issued or not.'

5. The surveyor-general has not transmitted a statement of the expenses of the survey nor 'approved plats.' His laches cannot work a forfeiture of the plaintiff's title, nor arrest the operation of the revenue laws of the Territory. According to the argument on the other side, if payment of those expenses be never exacted, the lands would be perpetually exempt from taxation, although the plaintiff should remain in possession and exercise acts of ownership over them.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Colorado Company v. Commissioners


text: Talk:Colorado Company v. Commissioners

title: Talk:Colorado Company v. Commissioners


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Colorado Company v. Commissioners/Opinion of the Court

This is a writ of error to the upreme Court of the Territory of Colorado, to bring up a judgment holding a large body of real estate owned by plaintiffs liable to taxation under the laws of that Territory.

The ground on which the exemption from taxation is asserted is that the United States retains such an interest in the land that it cannot be taxed under the authority of that Territory; and we are of opinion that the claim is well founded.

In the year 1843, Governor Armijo, of New Mexico, made a grant of land to Gervacio Nolan, bounded by monuments and natural objects, containing about five hundred thousand acres.

Upon a report made to Congress after the United States acquired the country in which this land was situated, that body was of opinion that the grant was good only to the extent of Governor Armijo's power under the laws of Mexico, namely, eleven square leagues; and it passed the act of July 1, 1870, 16 Stat. 646, confirming the grant to that extent.

But as there was no particular designation of these eleven leagues by which to determine their precise location, and as many persons had settled on lands within the boundary of the original grant, Congress declared in that act that the eleven leagues should be adjusted in a compact form, as near as possible within said boundary, and according to the lines of the public surveys. That the claims of all actual settlers falling within the eleven leagues so selected should be allowed, and that for the deficiency thus made in the eleven leagues the grantees might select other lands within the bounds of the original grant.

It was made the duty of the Commissioner of the General Land-Office to have all the necessary surveys to carry these provisions into effect made at the expense of the government in the first instance; 'but,' it is added, 'before the confirmation provided for by this act shall become legally effective, the heirs of said Gervacio Nolan, or their legal representatives, shall pay the cost of such surveys as inure to their benefit respectively.'

And, by the next section, it is provided that, when all this is done, the surveyor-general shall furnish approved plats to the claimants, which shall be their evidence of title. The plats had not been made nor the expenses paid when this tax was assessed.

We are of opinion that the clause above quoted suspends the vesting of title in the claimants, or of any perfect equitable right to the title, until the expenses of the surveys are paid; and that this was done intentionally, to secure that payment. If not paid after a reasonable time subsequent to the perfecting of the surveys and plats, there remains in Congress the power to enforce that payment by a sale of the lands, a resumption of the grant, or any other appropriate mode.

A sale of the land under territorial authority, held by this court to be a sale on a valid tax, might very seriously embarrass the assertion of the rights of the government in the premises. If the tax had been levied on the equitable claim of these holders under Nolan, whatever that is, the case might be different. But this case shows that it is the land which is taxed, and the sale would convey the title, or nothing.

We are of opinion that Railway Company v. Prescott, 16 Wall. 603, and Railway Company v. McShane et al., 22 id. 444, govern this case, and that the learned judge who delivered the opinion in the Supreme Court of the Territory, in holding otherwise, overlooked the express provision in the act of Congress, supra, that the confirmation was not to be effective until these expenses should be paid.

We agree with what he has said, that the title when perfected relates back to and is founded on the grant by Mexico; but since it was imperfect, and no particular land passed under the grant until selections were made under that act, Congress had a right to annex to the confirmation the condition above recited.

Judgment reversed, with directions to the Supreme Court of the State of Colorado, to whose jurisdiction the case is now emitted, to affirm the judgment of the District Court for the county of Pueblo.


text: Talk:Colorado Company v. Commissioners/Opinion of the Court


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Nimick v. Coleman

MOTION to dismiss an appeal from the Circuit Court of the United States for the Western District of Pennsylvania.

Zug & Co., a partnership firm composed of Christopher Zug and Charles H. Zug, were adjudicated bankrupts by the District Court of the United States for the Western District of Pennsylvania, March 13, 1876. The creditors determined that it was for the interest of the general body of the creditors that the estate should be settled and distributed by trustees under the inspection and direction of a committee, as provided by sect. 43 of the Bankrupt Act. Rev. Stat., sect. 5103. The District Court confirmed this action of the creditors; and accordingly the estate was conveyed to trustees, to be dealt with in the manner contemplated by that section. The trustees, having converted both the partnership property and that of the individual partners into money, filed their accounts with the committee for settlement, and an order for distribution. The committee approved the accounts, and declared what seemed to them to be a proper dividend of the assets among the partnership and individual creditors.

The court granted the bankrupts their discharge Oct. 14, 1876.

Notice of the dividend declared having been served upon the creditors, William Coleman and others, individual creditors of Christopher Zug, filed their petition in the bankrupt court, Jan. 5, 1877, excepting to the account as settled by the committee, and asking the court to resume jurisdiction of the bankruptcy proceedings, and order the trustees to file their accounts in court, to the end that the same might be duly audited and the estate of the bankrupts marshalled and distributed according to law. To this petition the trustees appeared and answered, setting forth the action of the committee, and claiming that the court had no jurisdiction to control their proceedings. Jan. 20, 1877, the creditors amended their petition so as to bring in the committee. This committee having answered, the court made an order, April 2, 1877, directing both the committee and the trustees to file in court 'an account of the estate, joint and several, of the bankrupts, also setting forth the different properties of the bankrupts and the moneys derived therefrom, respectively, with the report of distribution.'

The trustees and committee thereupon filed a petition in the Circuit Court for a review of this order; and, May 23, that court affirmed the action of the District Court, except so far as it related to the committee, as to whom it was reversed and the petition dismissed. The direction to report distribution was also stricken out as premature. May 28, the trustees filed their accounts, with a statement of the action of the committee thereon. May 29, certain individual creditors of Christopher Zug, and also certain individual creditors of Charles H. Zug, filed exceptions to the account, upon the ground that individual property had been, as they claimed, improperly included in the partnership assets. Testimony was taken in support of and in opposition to these exceptions; and, July 13, the exceptions were sustained and the accounts modified. From this order certain of the partnership creditors took an appeal to the Circuit Court, July 21, which the individual creditors moved in that court, Aug. 4, to dismiss. Certain other of the partnership creditors filed in the Circuit Court, July 20, a petition for review under the supervisory jurisdiction of that court. Sept. 22, the Circuit Court made an order dismissing the appeal, for the reason that the case was one for review and not appeal, and at the same time, under the petition for review, affirmed the order of the District Court complained of.

Sept. 29, Nimick and the other partnership creditors took an appeal to this court from the order of the Circuit Court dismissing their appeal. The cause having been docketed upon this appeal, the individual creditors now move to dismiss, for the reason that the order appealed from is not reviewable in this court.

Mr. George Shiras, Jr., in support of the motion.

Mr. J. F. Slagle and Mr. John Dalzell in opposition thereto.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Nimick v. Coleman


text: Talk:Nimick v. Coleman

title: Talk:Nimick v. Coleman


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Nimick v. Coleman/Opinion of the Court

We think the motion to dismiss in this case must be granted. The record shows affirmatively that the Circuit Court refused to take jurisdiction upon the appeal, and did proceed under its supervisory jurisdiction alone. The case is thus brought directly within our decision in Stickney v. Wilt, 23 Wall. 150; and, as the order of the District Court has been affirmed, we are not called upon to determine whether we should set aside the action of the Circuit Court for want of jurisdiction, as we did in that case, because there was a reversal. If, as is claimed, the District Court acted without jurisdiction, or in a manner not to bind the parties, its decree as made was void; and the aggrieved partnership creditors may very properly consider whether they cannot proceed in equity to call the trustees to a proper accounting and distribution. Upon that question, however, we express no opinion. We are clear that no appeal lies to this court from the action of the Circuit Court in respect to what has been done; and the suit is accordingly

Dismissed.

title: Nimick v. Coleman/Opinion of the Court


text: Talk:Nimick v. Coleman/Opinion of the Court


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Brooklyn Insurance Company v. Dutcher

APPEAL from the Circuit Court of the United States for the Eastern District of Missouri.

This was a bill in equity filed by Clinton O. Dutcher and wife against the Brooklyn Insurance Company of New York, claiming that Mrs. Dutcher, under her contract with the company, and by reason of her payment of certain annual premiums, was entitled to a paid-up policy of insurance upon the life of her husband for $4,000, and praying for a specific performance. A decree was rendered for the complainants, and the company appealed here.

The facts are stated in the opinion of the court.

Submitted by Mr. J. O. Broadhead, for the appellant.

There was no opposing counsel.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Brooklyn Insurance Company v. Dutcher


text: Talk:Brooklyn Insurance Company v. Dutcher


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Brooklyn Insurance Company v. Dutcher/Opinion of the Court

In order to reach the proper solution of the question to be decided, it is necessary at the outset carefully to analyze so much of the policy as bears upon the subject.

It was there stipulated, that, in consideration of the payment of the sum of $615.40, and the payment of that sum annually thereafter on the twenty-eighth day of February, until ten years' premiums should be paid, the life of Clinton O. Dutcher was assured for the term of his natural life in the sum of $10,000, with participation in the profits of the company.

The insurance money, upon his death, was to be paid to Annie C. Dutcher, his wife, or her legal representatives, the balance of the year's premium, if any, and all indebtedness to the company, to be first deducted.

If the stipulated premium should not be paid on the day fixed upon for its payment, or any note given to the company in part payment of any premium should not be paid on the day when the same became due, then the company was not to be liable for any part of the sum assured, and the policy was to become void.

The dividends of profits declared were to be applied towards the payment of the note taken for 'part premiums.'

If the policy should become void, Annie C. Dutcher or her legal representatives were to be liable to pay to the company the amount of all notes taken for premiums which should remain unpaid, except the balance remaining unpaid on the note taken for part premium, and made payable twelve months from date, and the last-mentioned note was to be cancelled upon the surrender of the policy.

After two annual payments, should it be desired to discontinue the policy, the company was to issue 'a paid-up policy for as many tenths of the amount originally assured as there had been annual premiums paid in cash.'

Such being the policy, we are next to consider the admitted facts, as shown by the agreement of the parties.

At the time of the execution and delivery of the policy, the parties agreed that the annual premium of $615.40 should be paid each year, as follows: $369.24 in money, and $246.16 in the promissory note of Annie C. Dutcher, payable twelve months from date, with interest at the rate of seven per cent.

On the payment of the money and the delivery of the note a receipt for $615.40, the amount of the premium for a year, was to be delivered to Annie C. Dutcher, the amount of the note to be a permanent loan to her, bearing interest at the rate of seven per cent per annum, until paid by dividends of profits.

At the maturity of the note, a new note, bearing the same rate of interest and covering the amount of the prior note (except as reduced by dividends), and the amount of $246.40 of premium for the current year, was to be given; and so on from year to year during the existence of the original policy.

Annie C. Dutcher did, accordingly, on the 29th of February, 1868, pay the company $369.24 in money, and $246.16 in her promissory note drawn as aforesaid.

The company thereupon gave her a receipt, specifying the payment of $615.40, in full of the premium for the ensuing year, and that $246.16 of the premium had been loaned to her. This arrangement was carried out also with reference to the premiums due Feb. 28, 1869, Feb. 28, 1870, and Feb. 28, 1871. This continued the original policy in force until Feb. 28, 1872. The amount due to the company after the adjustment of the premium of 1871 was, including the amount due upon the prior notes so given, $793.64.

Annie C. Dutcher thereupon, after due notice, demanded a paid-up policy. The company refused to issue it unless she would first pay the $793.64 so due from her, which was a lien against the existing policy. She declined to comply with this demand.

It is further agreed, that from the time the company began business to the 20th of January, 1871, it was the course of business of the company to issue paid-up policies to policy-holders on demand, without reference to their indebtedness to the company, arising as before stated, and to hold such indebtedness in each case as a lien against the paid-up policy, but that on and after that date the company refused to give a paid-up policy to any policy-holder, without the payment first by the policy-holder of the amount owing to the company.

In this condition of things the appellees instituted this suit to compel the delivery of a paid-up policy. The court below decreed in their favor. The decree was conditioned that the sum of $793.64, and interest at the rate of seven per cent, owing to the company, less the accruing dividends of profits, should be a lien against the new policy, and that the amount due to the company at the death of Clinton O. Dutcher should be deducted from the sum then to be paid to the assured upon the policy. The company removed the case to this court by appeal. It is thus brought before us for consideration.

We think the decree is right.

The agreement set out in the admitted facts supplemented the policy. It had all the elements of validity. It was made by parties competent to contract. There was the requisite meeting and assent of minds. No canon of the law was violated. It stipulated expressly that the amount of the note given for the designated part of the annual premium was to be 'a permanent loan from the company to Annie C. Dutcher, bearing interest at the rate of seven per cent, until paid by dividends.' The receipt was for 'six hundred and fifteen 40/100 dollars, which continues in force the policy,' &c. The part of the premium for which the note was given each year was described as 'amount of premium loaned this year.' The policy provides that the amount of the note unpaid, if any, when the sum secured by the policy became payable, was to be deducted from the amount of the insurance money to be paid. This was the stipulation upon the subject. Beyond this here was no condition or qualification touching the note. The rights of the parties are thus clearly defined. Nothing is said in this connection as to any payment or discharge of the note in any other way than those thus prescribed. The note was to be renewed every year for the proper amount, and credited regularly with the accruing dividends during the life of the policy.

But it is said the policy declares that the amount of the paid-up policy should be determined by the sum of the premiums 'paid in cash.'

To this there is an obvious, and, we think, a conclusive answer. The part of the annual premium for which a note was to be given was in substance and effect a loan of so much money by the company to the assured. It was so described in the receipt of the company for the premium, and in the contract of the parties. If the money had been actually paid to the company, and the next moment loaned back, and the note then taken, there would not have been room even for a quibble upon the subject. Why go through such a ceremony? Why not go directly, as was done, to the end in view? The intent which animated the conduct of the parties determines its character. The receipt and contract both show that the transaction was regarded by both parties as a payment of money to one and a loan back to the other, for which the note was taken. The receipt was for the full amount of the premium. The note and loan were mentioned by way of memorandum, as a distinct matter. The law never requires an idle thing to be done. It would clearly have been this, and nothing else, if the assured had actually handed over the money and note with one hand, and eo instanti, with the other taken back the money. The company had the power to waive the actual production and payment of the money, and to receive a note bearing interest as the same thing. It has exercised this power, and is estopped to deny the consequence. Where a surety, by giving his note, extinguishes the liability of his co-surety, he can maintain an action against the co-surety for money paid; because the effect is the same that would have been wrought by the actual payment of the money.

The agreed fact must not be overlooked, that the company, from the time it commenced business, until the year 1871,-more than two years after entering into the contract with the assured, always issued paid-up policies upon the basis of the full amount of premiums paid as they were paid by the assured appellee, making no distinction between the notes and money received by the company for the premiums.

The practical interpretation of an agreement by a party to it is always a consideration of great weight. The construction of a contract is as much a part of it as any thing else. There is no surer way to find out what parties meant, than to see what they have done. Self-interest stimulates the mind to activity, and sharpens its perspicacity. Parties in such cases often claim more, but rarely less, than they are entitled to. The probabilities are largely in the direction of the former. In considering the question before us, it is difficult to resist the cogency of this uniform practice during the period mentioned, as a factor in the case.

It was competent for the company, under proper circumstances, at any time to change its rule with respect to the future; but it could not affect vested rights acquired in the past, while a different rule prevailed.

Prior contracts must be carried out as they were when they were entered into. Neither party, in invitum as respects the other, can make any change. When it was proposed by the assurer to apply the new rule and practice in this case, the assured might well say, 'non in hoec federa veni,' and insist upon the interpretation which prevailed in other like cases when the parties became bound to each other, and continuously, for two years later. The proper way to make the change was to employ such language for that purpose as would create certainty and exclude doubt. It appears from a passage in the opinion of one of the learned udges below that this was done in subsequent cases by expressly excluding the notes from the basis of the computation, and confining it to the cash payments.

But, irrespective of this, we entertain no doubt upon the point in question.

The conclusion to which we have come will involve neither hardship nor hazard to the appellant. The note bears seven per cent interest. The debt will be a lien against the new policy, and nothing can be collected upon it until the entire amount due to the company shall have been first deducted. The security will, therefore, be perfect.

Decree affirmed.

MR. JUSTICE BRADLEY dissented.


text: Talk:Brooklyn Insurance Company v. Dutcher/Opinion of the Court


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Keystone Bridge Company v. Phoenix Iron Company

APPEAL from the Circuit Court of the United States for the Eastern District of Pennsylvania.

The facts are stated in the opinion of the court.

The case was argued by Mr. Henry Baldwin, Jr., for the appellant, and by Mr. George Harding for the appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.


text: Talk:Keystone Bridge Company v. Phoenix Iron Company