Blanchard v. Lambert.

because the deceased, Nathaniel, at the time of his marriage with Susan, had a wife living, which fact was known to Susan, the defendant. It was proved that Nathaniel had been separated from his former wife about eight years, and that she had married again more than two years prior to the marriage between Susan and Nathaniel. There was no evidence that the first wife of deceased had obtained a divorce prior to her second marriage. But it was held that the law in favor of innocence would raise a presumption that such a divorce had been obtained. That case is, in principle, in all respects like the one at bar. There are other cases which illustrate the force of the presumption of innocence, and show how it overrides opposing presumptions. In the case of The King v. Inhabitants of Twyning, 2 B. & Ald. 387, it was held that the law always presumes against the commission of crime, and that a woman who married within twelve months after her husband left the country, would be presumed to be innocent of bigamy, the presumption of innocence preponderating over that of the life of the husband.

In Yates v. Houston, 3 Tex. 433 (449), where the husband and former wife separated in 1818, and he cohabited with another woman, as his wife, from 1822 to the time of his death, his former wife not having been heard of during the four years preceding the commencement of the cohabitation, it was held that the ordinary presumption in favor of the continuance of human life should not, under the facts of the case, outweigh the presumption in favor of the innocence of their cohabitation, and that there was no legal impediment to their contracting the matrimonial relation. In Lockhart v. White, 18 Tex. 102, the same doctrine was announced. These decisions are in entire harmony with the spirit and policy of the law, and they fully sustain the action of the court below.

II. Musgrave died in June, 1871. The plaintiff and Blanchard after this time continued to live together as husband and wife, until his death in August, 1872. During this time Blanchard introduced the plaintiff as his wife; he called her "ma," when speaking to one of the family; when speaking to strangers he called her "his wife." They lived happily together, and treated each other with mutual respect. During the last illness of deceased, which lasted about ten months, the plaintiff sat up with and waited on him, and in all respects treated him as a lady would her husband. She was treated in the community with respect, and was recog

Blanchard v. Lambert.

nized as the wife of deceased. Blanchard made a will in which he mentions plaintiff as his wife, and bequeaths to her the homestead of 200 acres, and 40 acres of timber contiguous thereto, during her natural life, provided she remains his widow.

Under these circumstances, even if the marriage were originally void, a subsequent marriage will be presumed to have occurred after the removal of all legal impediments by the death of Musgrave in June, 1871. It is a settled rule of the common law that any mutual agreement between the parties to be husband and wife, in presenti, followed by cohabitation, constitute a valid and binding marriage, if there is no legal disability on the part of either to contract matrimony. Rose v. Clark, 8 Paige's Ch. 574–579. Chapter 102 of the Revision provides the manner of solemnizing marriages in this State. Section 2526 provides that marriage solemnized, with the consent of parties, in any other manner than as prescribed in that chapter are valid; but the parties themselves, and all other persons aiding or abetting, shall forfeit to the school fund the sum of fifty dollars each. So that in this State no express form is necessary, more than at common law, to constitute a valid marriage.

In the case of Fenton v. Reed, 4 Johns. 51, it appeared that the party claiming to be the widow of William Reed, deceased, was in the year 1785 the lawful wife of John Guest. In that year Guest left the State for foreign parts, and continued absent until the year 1792, and it was reported and generally believed that he had died in foreign parts. In 1792 the wife of Guest married Reed. In that year, but subsequent to the marriage, Guest returned to the State and continued to reside therein until the year 1800, when he died. Reed and defendant continued to cohabit together and maintained a good reputation in society until 1806, when Reed died. No solemnization of marriage was proved to have taken place subsequently to the death of Guest. Upon these facts it was held the court below was warranted in presuming a marriage after the death of Guest. In Rose v. Clark, 8 Paige's Ch. 573, it was held that a subsequent marriage may be inferred from acts of recognition, continued matrimonial cohabitation and general reputation, even where the parties originally came together under a void contract of marriage.

In Jackson v. Claw, 18 Johns. 347, the same doctrine was announced. See, also, Starr v. Peck, 1 Hill, 270.

McCluer v. Girard Fire and Marine Insurance Company

The case of Wilkinson v. Payne, 4 Durn. & East, 468, went still further in the doctrine of presumption. In that case the husband was under age at the time the ceremony was performed; his parents were dead and he had no legal guardian to consent to the marriage; and under the English marriage acts, the marriage was absolutely void. When he became of age his wife was upon her death-bed, and she died in three weeks from that time. But upon proof that the father of the wife, who was the defendant in the suit, and the rest of his family had always treated them as husband and wife, it was left to the jury to presume a legal marriage after the husband was of age, and they did so. The Court of King's Bench refused to disturb their verdict.

In addition to all this, section 1, chapter 151, Laws of 1862, which is an amendment of section 2477 of the Revision, and was in force at the time of the death of Blanchard and of the commencement of this action, provides that continuous cohabitation as husband and wife is presumptive evidence of marriage, for the purpose of giving the right of dower. The judgment of the court below is affirmed. Judgment affirmed.

MCCLUER V. GIRARD FIRE AND MARINE INSURANCE COMPANY.

(43 Iowa, 349.)

Fire insurance description of location of insured property -- warranty · "contained in."

A policy of insurance was issued on a carriage described as "contained in a frame barn." The carriage was destroyed by fire while at a carriage shop undergoing repairs. Held, that the loss was covered by the policy. (See note, p. 253.)

А проп

CTION on a policy of fire insurance issued by the defendants upon a phaeton described in the policy as "contained in a frame barn, situated," etc. The property was destroyed while at a carriage shop undergoing repairs. Judgment was rendered for the plaintiff, and the defendant appealed.

Dewitt C. Cram, for appellant. The risk was restricted to such times as the property insured should be at the place mentioned in the policy. Annapolis R. Co. v. Baltimore Ins. Co., 32 Md. 37; VOL. XXII.—32

McCluer v. Girard Fire and Marine Insurance Company.

S. C., 3 Am. Rep. 112; Ins. Co. v. Throop, 22 Mich. 146; S. C., 7 Am. Rep. 638; Liebenstein v. Ætna Ins. Co., 45 Ill. 303; Ellmaker v. Franklin Ins. Co., 5 Penn. St. 183. Defendant's liability for the property, when away from the premises named, should be limited to such times as it is being used by the assured in the ordinary course of business. Mills v. Farmers' Ins. Co., 37 Iowa, 400.

Fouke & Lyon, for appellee. The liability of the company was not restricted to the use of the property at the place specified, but extended to the ordinary. use of it, when temporarily away from the location mentioned in the policy. Peterson v. Miss. Valley Ins. Co., 24 Iowa, 497; Mills v. Farmers' Ins. Co., 37 id. 400. When there is any doubt in the condition restricting the liability of the company, the construction should be adopted most beneficial to the promisee. Hoffman v. Ins. Co., 32 N. Y. 405. The finding of the court having the same force as the verdict of a jury, it will not be disturbed if there is any evidence to support it. Savery v. Sypher, 39 Iowa, 675.

ADAMS, J. It is claimed by the defendant that it is not liable because the phaeton at the time of the loss was not contained in the frame barn, but had been removed to a carriage shop for repairs, and because the risk had been increased.

on the face of the Wood v. The Hart

It is true that any statement or description policy which relates to the risk is a warranty. ford Fire Ins. Co., 13 Conn. 544. And where goods are described as being in a building occupied in a certain way, the words describing the occupancy must be regarded as employed to express a fact relating to the risk. Wall v. The East River Mut. Ins. Co., 7 N.

Y. 370.

Representations in regard to circumstances affecting the risk amount to a stipulation that no change will take place whereby the risk will be increased. Houghton et al. v. The Manufacturers' Fire Ins. Co., 8 Metc. 114.

Where, therefore, as appellant claims, the place in which the insured property is situated is made a part of the description for the purpose of defining the risk, and a removal takes place not contemplated by the policy, the property is no longer covered by the policy. This doctrine is distinctly held in Boynton v. Clinton and Essex Mut. Ins. Co., 16 Barb. 254, and Annapolis and Elkridge

McCluer v. Girard Fire and Marine Insurance Company.

R. R. Co. v. Baltimore Fire Ins. Co., 32 Md. 37; S. C., 3 Am. Rep. 112. In the former case goods were insured as "in the store part" of the building, which was on the lower floor, but were at the time of the loss in an office room in the second story. It was held that no recovery could be had. In the latter case the policy was upon certain railroad buildings, including car-houses, and upon cars "contained in car-house No. 1," among which were specified two Murphy and Allison passenger cars. One of them, while in use on the line of the road, was destroyed by fire. It was held that no recovery could be had because at the time of the loss it was not in the carhouse.

It is claimed by appellant that these cases are in point, and decisive of the case at bar. It may be conceded that the situation of the property is mentioned in the policy as a fact affecting the risk. The words describing the situation must then be regarded as a warranty not only that the property was contained in the barn, but would continue so; and if, at the time of the loss, the carriage was not contained in the barn within the meaning of the policy, we do not see how the plaintiff can recover. This leads us to consider what is meant by the words "contained in a barn," when used in a policy of insurance and applied to a carriage. Suppose at the time the policy was signed and delivered the carriage was standing in the street in front of the defendant's insurance office, where possibly it was; would it be competent now to show such fact to defeat the policy? We think not. The words "contained in a barn were not used to describe its situation at that moment. That was not the material fact in regard to which the company desired a stipulation. The material fact was that the carriage when not in use was kept in the barn, described as its ordinary place of deposit.

If the plaintiff signed an application, and was asked where he kept the carriage, his answer was, if he made a true one, that he kept it in the barn described, notwithstanding it might at that moment have been in use and not in the barn.

In one sense it would not have been true that he at that moment kept it in the barn, but it would have been true within the meaning of the inquiry. If the word kept had been used in the policy instead of the word contained, we think the meaning would have been the same.

The words which are used must be construed with reference to