band's name, to which she asserted and acquired title during coverture.
Central Land Co. v. Laidley, 797.
14. DEED OF MARRIED WOMAN — DefectivE ACKNOWLEDGMENT-LIABILITY
OF SECOND PURCHASER TO REFUND FIRST PURCHASE-MONEY. — Where
a married woman's deed is void because defectively acknowledged, and
she conveys to a second purchaser after her husband's death, his title is
perfect. He cannot be compelled to refund the purchase-money paid by
the first purchaser, nor can it be charged on the land. Central Land
Co. v. Laidley, 797.
15. DEED OF MARRIED WOMAN - DEFECTIVE ACKNOWLEDGMENT - STATUTE
OF LIMITATIONS AGAINST WIFE. — Where, in land conveyed directly to
the wife, her husband is thereby vested with a life estate therein, and
the husband and wife convey it to a party by deed which is void as
to the wife, because defectively acknowledged, the purchaser is entitled
to the possession until the death of the husband, and until then the wife
or her grantee has no right of action to recover the possession; conse.
quently the statute of limitations does not begin to run against them
until his death. Central Land Co. v. Laidley, 797.
See DOWER; EJECTMENT, 3; MARRIAGE AND DIVORCE; PARENT AND CHILD.
IMPROVEMENTS.
See LANDLORD AND TENANT, 1.
IMPUTED NEGLIGENCE.
See NEGLIGENCE, 9.
1. DUPLICITY. An information which charges in a single count the larceny
of two distinct articles of personal property belonging to two different
persons, without alleging that the property of the two owners was
stolen at the same time and by the same act, is bad for duplicity.
Joslyn v. State, 425.
2. INDICTMENT NOT BAD FOR DUPLICITY WHEN. - An indictment is not
bad for duplicity because it charges an accessary before the fact as a
principal. Rhodes v. State, 429.
See ABORTION, 1; FALSE PRETENSES, 6-12; FORGERY, 4
INFANT'S DEED WITHOUT CONSIDERATION VOID.-An infant's deed of
land, made without consideration, or for a merely nominal considera-
tion, is absolutely void, and vests no title in the grantee. Robinson v.
Coulter, 708.
See COVENANTS, 1; NEGLIGENCE, 5-8; PARENT AND CHILD,
1. ELECTIONS - JURISDICTION. — An injunction will not issue to restrain
county commissioners or other proper officers from certifying to the
governor the result of their canvass of the county vote for a repre-
sentative in Congress. Alderson v. Commissioners, 840.
2. INJUNCTION AGAINST PERFORMANCE OF AN OFFICIAL DUTY IS VOID. — An
injunction will not lie to restrain the secretary of state from delivering
to the speaker of the house of representatives the sealed election returns
for governor properly transmitted to him, and if granted, will be treated
as a nullity. Consequently a writ of prohibition will not lie in such
case against a mandamus proceeding under a writ improperly granted
to compel the delivery of such returns, when the only ground relied
upon by the petitioner for the writ of prohibition is the fact that he is
the plaintiff in the injunction which has been disregarded. Fleming v.
Guthrie, 792.
8. WRIT OF POSSESSION
An injunction will lie
to restrain the execution of a writ of possession as to a wife's separate
estate, when such writ issued in an action in ejectment against her
husband to which she was not a party. Bushong v. Rector, 817.
See LIBEL; TRADE-MARKS, 8.
MORTGAGE - POWER OF GUARDIAN OF INSANE Person to MAKE - Under
the statutes of Massachusetts, a guardian of an insane person has au
thority to make any election or waiver, and to do any other act which
his ward might have done but for his insanity, and may therefore ex-
ercise a power to mortgage conferred by a will on such ward. Kent v.
Morrison, 616.
See APPEAL AND ERROR, 10-14; HOMICIDE, 7-9; SEDUCTION, 3; SLANDER,
4; TRIAL, 6.
1. FIRE INSURANCE-CONDITION IN A POLICY OF INSURANGE EXEMPTING
THE INSURER FROM LIABILITY IF ANY CHANGE TAKES PLACE IN THE
TITLE OR POSSESSION is not violated by a lease of the property and a
taking possession by a tenant, when the application for insurance states
that the property is to be occupied by a tenant for hotel purposes, and
the insurer had full knowledge, before issuing the policy, of the purpose
for which the building was being constructed, and that it was to be
occupied by a tenant. No particular tenant being named in the appli
cation, the issuing of the policy was a consent to the occupancy of any
tenant whom the assured should select. Smith v. Phoenix Ins. Co., 191.
2. A CONDITION IN A POLICY OF INSURANCE AGAINST ANY CHANGE IN
THE TITLE OR POSSESSION of property is not broken by an agreement
between its lessor and lessee that the former will sell and the latter will
buy the property at the expiration of the lease. Smith v. Phoenix Ins.
Co., 191.
3. PREMIUM MUST BE PAID BACK IF RISK NEVER ATTACHED.
- Where no
risk has ever attached under a policy of fire insurance, the insurer must
return the premium paid, provided the assured has been guilty of no
fraud. Jones v. Insurance Co., 706.
4. EVIDENCE THAT THE PLAINTIFF WAS VERY POOR AND NEEDY should not
be admitted to support an inference that his poverty might have led
him to comit arson to obtain the amount for which his property was in-
sured. Deitz v. Providence etc. Ins. Co., 908.
5. A BREACH OF CONDITION OCCURRING AFTER THE COMMENCEMENT OF AN
ACTION on a policy of insurance, such, for instance, as false swearing, oan.
not operate to defeat the action. Deilz v. Providence etc. Ins. Co., 908.
6. CONDITION AGAINST CHANGE IN Exposure. If a policy of insurance,
issued upon ear-corn in two cribs, contains a condition declaring that it
AM. ST. REP., VOL. XXV. — 62
shall be void "if there be any change in the exposure by the erection
or occupation of adjacent buildings, or by any means whatever in the
control or knowledge of the assured," such condition is violated and the
policy avoided if he caused a sheller, operated by steam, and an engine
and boiler, furnishing the power, to be brought quite near the cribs,
and the corn was destroyed by fire caused by the proximity of the en.
gine to the cribs. Davis v. Western Home Ins. Co., 509.
7. DEFINITION.
- THE WORD "EXPOSURE," as used in policies of insurance,
indicates danger of destruction or injury to the property insured from
external sources not inherent in the property itself. Davis v. Western
Home Ins. Co., 509.
8. FALSE STATEMENT CONCERNING OCCUPATION OF PREMISES AVOIDS POLICY.
-The holder of a policy of insurance on a dwelling-house described in
the policy as occupied by good tenants cannot recover for a loss, if such
house was in fact vacant when the policy was issued. Such statement
is a warranty; and to entitle the insured to recover, it must have been
true, although it was made in ignorance, and without any desire to
misrepresent any of the facts. Boyd v. Insurance Co., 676.
9. WAIVER OF WARRANTY OF OCCUPATION OF INSURED PREMISES, WHAT
NECESSARY TO CONSTITUTE. — If a policy of insurance is void at its in-
ception because it contains a warranty that the premises insured were
occupied, when in fact they were vacant, a subsequent notice to the in-
surer that they were vacant at the time of the giving of the notice can.
not give life to the policy; and the consent of the insurer to the vacancy
will not constitute a waiver by him of the forfeiture caused by the
premises not being occupied when the policy was issued, unless such
consent was given with full notice of all the facts. Boyd v. Insurance
Co., 676.
10. REQUIREMENT OF PROOFS OF LOSS NOT WAIVER OF OTHER Defenses
An insurer, by requiring proofs of loss stipulated for in the policy, does
not waive his right to set up other defenses, although the insured may
have incurred expense in furnishing the required proofs. Boyd v. Insur-
ance Co., 676.
11. NOTICE OF CONCURRENT INSURANCE. IF THE AGENT OF THE INSURER
KNOWS when he receives the application for insurance that the assured
is desiring and applying for concurrent insurance in excess of that
permitted by the policy, this knowledge is imputed to the insurer, and
precludes it from maintaining a defense founded upon the fact that
additional insurance was finally obtained. Hagan v. Merchants' etc. Ins.
Co., 493.
12. INSURANCE CORPORATION IS BOUND BY THE KNOWLEDGE OBTAINED BY
ITS AGENTS. Hagan v. Merchants' etc. Ins. Co., 493.
13. MISTAKE IN WRITING NAME OF PARTY WHOSE PROPERTY IS INSURED.
-If a policy of insurance is written in the name of the husband,
through a mistake of an agent of the insurer, or of his clerk, who in-
tended to write it in the name of the wife, whom he knew to be the
owner of the property, an action may be sustained thereon by the hus
band for the use of the wife, though the policy contains a provision de-
claring that if the property is held in trust, or by leasehold or other
interest not amounting to absolute or sole ownership, it must be so rep-
resented to the company and expressed in the policy in writing, and
that the company will not be bound by any act or any statement made
to or by any agent or other person which is not contained either in the
policy or in the written application on which the insurance was based.
Deitz v. Providence etc. Ins. Co., 908.
14. WAIVER OF PROOFS OF Loss.
- If an insurance company, without
making any objection to the absence of proofs of loss, writes to the as-
sured that, "We don't intend to look any further into the matter, and
we don't deny our liability, nor do we admit it," the proof of loss is
waived. Deitz v. Providence etc. Ins. Co., 908.
- MISTAKE OF A CLERK of an agent of the in-
surer in transcribing the policy is a mistake of the agent himself, and
the obligations of the insured are the same as if the agent had made the
mistake. Deitz v. Providence etc. Ins. Co., 908.
16. CLERK OF AGENT. - Insurance agents are not bound to attend to all
the details of their business in person. They may authorize their
clerks to contract for risks, deliver policies, collect premiums, take
payments of premiums in cash or security, and to give credit or de
mand cash. Deitz v. Providence etc. Ins. Co., 908.
17. PLEADING. THE EXECUTION OF A POLICY OF INSURANCE IS NOT PUT IN
ISSUE by an answer denying that the policy as set out in the complaint
is the policy issued by the defendants, "for that the same has been
changed and altered, without their knowledge and consent, since its
delivery," and further specifying the respects in which it has been so
altered. Such policy is therefore receivable in evidence on behalf of
the plaintiff without proving its execution, and without evidence con-
cerning the alleged alterations. Hagan v. Merchants' etc. Ins. Co., 493.
18. PAROL EVIDENCE that proof of loss was prepared and sent to the insurer
is admissible, and if there is no issue as to the form or sufficiency of the
notice or proof, there is no necessity of evidence of the contents of either,
and the admission of an alleged copy cannot prejudice the insurer, nor
afford him any ground for reversal. Hagan v. Merchants' etc. Ins. Co.,
493.
19. COUNTERCLAIM BASED UPON A PREMIUM NOTE is not sustainable when
the promise in the note is to pay a designated sum "in such portions
and at such times as the directors of such company, agreeably to their
act of incorporation and by-laws, may require," unless the directors
have declared such notes or some portion thereof due and payable. Ha-
gan v. Merchants' etc. Ins. Co., 493.
20. LIFE INSURANCE - INSURABLE INTEREST - DEBT, THOUGH BARRED BY
STATUTE OF LIMITATIONS, GIVES, IN LIFE OF Debtor.
A debt, even
though not legally collectible, by reason of the bar of the statute of limi
tations, gives to the creditor an insurable interest in the life of his debtor.
Curtiss v. Etna Life Ins. Co., 114.
21. INSURANCE POLICY ASSIGNMENT AS COLLATERAL SECURITY TO ONE
HAVING NO INSURABLE INTEREST. A policy of life insurance issued
to a creditor of the assured may be assigned by such creditor as collat-
eral security, and the assignee may enforce payment of the policy, al-
though at the time of the assignment he had no insurable interest in the
life of the assured, and notwithstanding the policy expressly provides
that any claim made by an assignee shall be subject to proof of interest.
An assignment as collateral security does not come within the meaning
of such provision. The assignee in such case is a mere trustee for the
assured. Curtiss v. Etna Life Ins. Co., 114.
22. INSURABLE INTEREST - WHETHER ASSIGNEE HAS, IMMATERIAL AFTER
Loss. -- After a loss and fixed liability have attached upon a policy of
life insurance, it is of no concern whatever whether an assignee has or
has not an interest in the life insured. Curtiss v. Etna Life Ins. Co.,
114.
· CONTRACT TO ADVANCE MONEY TO PERSON
GIVES, IN HIS LIFE. A binding contract by one person to advance
money to another on demand gives to the former an insurable interest
in the life of the latter. And if such an agreement, to be valid, must be
in writing, an allegation in a pleading that alleges that it was so agreed
must be held to imply that it was so agreed in writing. Curtiss v. Ætna
Life Ins. Co., 114.
24. INSURANCE POLICY IS INSTRUMENT IN WRITING EXECUTED IN THIS
STATE WHEN. A policy of life insurance issued by an insurance com-
pany of another state, which expressly provides that it shall not be
operative until countersigned by the general agent of the company in
this state, and which is so countersigned, is a written contract executed
in this state within the meaning of the statute of limitations. Curtiss v.
Etna Life Ins. Co., 114.
25. INSURANCE COMPANY ESTOPPED FROM ALLEGING MISREPRESENTATION
AS TO INSURABLE INTEREST WHEN. - Although it does not appear that
the creditor of a person whose life is insured was, at the date of the
policy, bound by a written contract to advance the amount of the policy,
if it does appear that future advances were promised, that the person
whose life was insured had made a written acknowledgment of a consid-
erable subsisting indebtedness, that a full and correct statement of all
the facts as they existed was made to the company's agent, that the
company continued to receive the premiums with knowledge of the facts,
and that the full amount of the policy was finally advanced by the cred-
itor, the company will be estopped from alleging a misrepresentation of
an insurable interest to the full amount of the policy. Curtiss v. Etna
Life Ins. Co., 114.
26. CONSTRUCTION OF POLICY. - A contract of insurance is to be construed
as a whole, so as to receive a reasonable interpretation, and the risk is
not to be extended beyond what is fairly within the terms of the policy.
All conditions involving forfeitures or exemptions are, however, to be
construed strictly against the insurer, and most favorably for the insured.
Duran v. Standard etc. Ins. Co., 773.
87. QUESTIONS RELATING TO POLICY IN ANOTHER COMPANY NOT RELE
VANT WHEN. In an action by the administratrix of the insured upon
a life insurance policy, the defendant company cannot properly question
the plaintiff as to another policy in another company held by the deceased,
and as to the payment of premiums thereon. Murray v. Home Ben. L.
Ass'n, 133.
28. PRESUMPTION AGAINST SUICIDE AND MURDER IN CASE OF VIOLENT DEATH
OF INSURED. — In an action on a policy of life insurance, where the vio
lent death of the insured is proved, but there is no direct proof of the
manner of his death, the presumption of law is, that he did not commit
suicide, and was not murdered; but either of these presumptions may
be overcome by facts and circumstances which establish the contrary.
Insurance Co. v. Bennett, 685.
29. LIFE INSURANCE POLICY, CLAUSE IN, EXEMPTING FROM LIABILITY FOR
INJURY FROM UNLAWFUL ACT, HOW CONstrued. A provision in a pol-
icy of life insurance exempting the insurer from liability for injuries to
the insured while engaged in or in consequence of some unlawful act
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