facts is such that reasonable men may fair- | wanted the insurance for speculation and to aid it in a stock-jobbing scheme, it was is equally clear that the lower court committed no error against the defendant when it submitted the question to the jury, under an instruction which was a correct statement of the law. There was a condition of the policy that, unless otherwise provided by agreement indorsed thereon or added thereto, the policy should be void, if the interest of the insured be other than unconditional and sole ownership, or if the subject of the insurance be a building on ground not owned by the insured in fee simple. The defendant says that a verdict should have been directed in its favor, for the reason that no agreement was indorsed on or added to the policy, and the undisputed evidence is that the interest of the plaintiff in the premises insured was chase and hence not a fee simple, and that there was a lien for the purchase price and an outstanding tax sale certificate against the property, which rendered plaintiff's ownership other than unconditional and sole. If this contract of purchase is examined, it is found that the vendor sold the land and mill thereon to the vendee, and that she agreed to convey it to the vendee, free and clear from all liens and incumbrances within fifteen days or sooner if practicable. The vendee agreed that within 30 days after the presentation or tender of the deed to him he would pay the balance of the purchase price. No reservation of any lien for the purchase money was made, nor was the conveyance dependent on the payment of the balance. The vendor had at most 15 days from the date of the contract within which to convey the property to the vendee, clear and free from all liens and incumbrances, and the vendee had at least 30 days from that date to pay the balance. It is difficult to conceive how the vendor had a lien under such a contract. The facts with reference to the tax certificate were that it had issued, but it was transferred to the plaintiff. When the certificate was transferred to the plaintiff, it was no longer outstanding against the plaintiff. The defendant proved that the certificate was transferred to the plaintiff at or before the delivery of the deed on July 6th. Under this proof, the plaintiff may have been the holder of the certificate on May 27th, when the policy was issued. [5] The defendant, after proving that the plaintiff may have been the holder, failed to prove that the plaintiff was not the holder when the policy was issued, and thus failed to prove that this tax certificate was outstanding against the plaintiff, at the time the insurance was effected. It therefore failed to prove facts sufficient to maintain its position with reference to this matter. It would have to and did allege facts in defense that would present the issue. Loyal Mut. Co. v. Brown Co., 47 Colo. 467, 475, 107 Pac. 1098. It is elementary that whatever must be pleaded must also be proven. For the purposes of this case, however, it may be assumed, as contended by the defendant, that the vendor had a lien upon the land for the balance of the purchase money merely because the balance was unpaid, and it may be assumed that the tax certificate was outstanding in the hands of another party at the time of the issuance of the policy. [6] This contract of sale and purchase was at once assigned to the plaintiff by Andrews, and the plaintiff succeeded to all rights and liabilities thereunder. The relation of a vendor with a lien for the purchase money to the vendee in possession is the same as that of a mortgagee to a mortgagor in possession. Loventhal v. Home Ins. Co., 112 Ala. 108, 20 South. 419, 33 L. R. A. 258, 57 Am. St. Rep. 17. That case holds that a mortgage upon the land is not violative of such a condition in a policy, and refers to many cases supporting the position, quoting from Dolliver v. St. Jos. Ins. Co., 128 Mass. 315, 35 Am. Rep. 378, as furnishing a key to the rulings in all the cases referred to. Besides, as will be seen hereafter, there are many cases holding that a vendee in possession under such a contract of purchase is the unconditional and sole owner, notwithstanding that the purchase money has not been paid in full. [7] The tax sale had not changed the interest of the owner. The certificate was, at most, a lien. The tax was a lien before the sale and before it became delinquent. The sale merely changed the form of the lien and transferred it from the state, county, and municipality, or whoever held the lien, to the holder of the certificate. It might as well be said that if an owner takes out a policy with such a condition before he pays his taxes, whether delinquent or not, it will be void upon loss, because the property was incumbered with the lien of the taxes at the time the insurance was effected. At the time the policy was issued, the plaintiff Iwas the holder of the contract of purchase, in possession, using and improving the property and exercising all acts of full ownership. It had paid one-half or $5,000 of the purchase price. It was absolutely bound to pay the balance when due, though the mill burned down before that time. It was not in default. True, it did not have the legal title. [8] Its title was an equitable one, but it was an equitable title that contemplated and embraced full ownership. The estate owned may be in fee simple, though the title by which it is held be an equitable one. The plaintiff was the owner in fee simple by an equitable title. The vendor held the legal title in trust for the plaintiff. The plaintiff being in possession, the vendor could not convey this legal title to another, free from the trust impressed upon it. [9] The condition in the policy does not distinguish between a legal and equitable estate in fee. The latter responds to the condition. The plaintiff was the unconditional and sole owner in fee simple within the meaning of the policy. These views are fully sustained by the following authorities, in many of which the purchase price had not been paid in full: Loventhal v. Home Ins. Co., 112 Ala. 108, 20 South. 419, 33 L. R. A. 258, 57 Am. St. Rep. 17; Pa. F. Ins. Co. v. Hughes, 108 Fed. 497, 47 C. C. A. 459; Imp. F. Ins. Co. v. Dunham, 117 Pa. 469, 12 Ati. 668, 2 Am. St. Rep. 686; Elliott v. Ashland Mut. F. Ins. Co., 117 Pa. 548. 12 Atl. 676, 2 Am. St. Rep. 703; Lewis v. New England F. Ins. Co. (C. C.) 29 Fed. 496; Dupreau v. Hib. Ins. Co., 76 Mich. 615, 43 N. W. 585, 5 L. R. A. 671; Queen Ins. Co. v. May (Tex. Civ. App.) 35 S. W. 829. The reasoning in Baker v. State Ins. Co., 31 Or. 41, 48 Pac. 699, 65 Am. St. Rep. 807, is to the same effect, as is also that in Pelton v. Westchester F. Ins. Co., 77 N. Y. 605. The following authorities insured with all the foregoing require hold that such a vendee is the unconditional ments." It also provided that the loss and sole owner of the property purchased should not become payable until 60 days within the meaning of a clause in an insurance policy requiring such owership, and in some, if not in the most of these, the purchase price was not paid in full: Milwaukee Mechanics' Ins. Co. v. Rhea & Son, 123 Fed. 9, 60 C. C. A. 103; Phenix Ins. Co. v. Kerr, 129 Fed. 723, 64 C. C. A. 251, 66 L. R. A. 569; Knop v. Ins. Co., 101 Mich. 359, 59 N. W. 653; Chandler v. Com. F. Ins. Co., 88 Pa. 223; Martin v. State Ins. Co., 44 N. J. Law, 485, 43 Am. Rep. 397; Davis v. Pioneer Fur. Co., 102 Wis. 394, 78 N. W. 596; Matthews v. Cap. Ins. Co., 115 Wis. 272, 91 N. W. 675. In the case last cited the court, with reference to a vendee under a land contract, being the unconditional and sole owner, said: "It does not seem that we are called upon to reconsider or discuss a matter so well settled as the law on the subject in question." And in 123 Fed., 60 C. C. A., supra, a case where a part of the purchase money remained unpaid, Judge Lurton said: "That a vendee in possession under a written agreement for the sale and purchase of the property is the equitable owner thereof, and authorized to represent himself as the owner, or the 'sole and unconditional' owner, within the meaning of that term in fire policies, is hardly the subject of debate." The nearest expression there is on the subject in this state is in Wich v. Eq. F. & M. Ins. Co., 2 Colo. App. 484, 31 Pac. 389. In effect, that case decides that such a vendee is the equitable owner invested with the entire, unconditional and sole ownership. [10] The defendant says the court erred in refusing to admit in evidence an application for insurance made by the plaintiff to a company other than the defendant, and delivered to McCandless several days after the policy in this case was issued. That the application was inadmissible, even if made to the defendant, when it does not appear that the making of the application was a condition precedent to the policy taking effect, or that it was made under an agreement on the part of plaintiff to make one after the issuance of the policy, is settled by this court in Loyal Mutual Co. v. Brown Co., 47 Colo. 467, 107 Pac. 1098, and, when made to an entirely different company than the defendant, there is much more reason for not admitting it. The defendant at no time before or after the issuance of the policy asked for any representations from the plaintiff. The policy contained the following provisions: "If fire occur the insured within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or after notice, ascertainment, estimate, and satisfactory proofs of loss required had been received by the company, and that suit upon the policy must be commenced within 12 months after the fire. As a matter of fact, the required statement was sent after the expiration of the 60 days, and was ever after retained by the defendant without objection thereto, on any ground, until it filed its answer in this case. The question of waiver, however, will not be considered. It is not provided that there shall be a forfeiture, or that the company will not be liable in case the statement is not rendered within 60 days after the fire. There are a number of clauses in the policy expressly beginning with the words "this entire policy shall be void," or "this company shall not be liable," and stating the particular instances in which the policy shall be void or the company not liable. At least 16 contingencies are named in which the policy shall be void, and at least 13 in which the company shall not be liable. The failure to furnish the statement within 60 days is not among these contingencies. The matter referring to the statement is in a different clause from any of those contingencies, and the clause in which it occurs does not contain any words of nonliability or avoidance. If the policy was to be avoided or the company not liable in case of failure to furnish the statement in 60 days, why did not the policy so state. when it did so state in so many other contingencies? [11] This court and many others have stated that in case of doubtful meaning a policy should be construed in favor of the insured. [12] Forfeitures are not favored, and courts do not declare one by implication. [13] The policy does not expressly provide that the loss shall not be payable unless the statement is furnished within 60 days, but it does provide that the loss shall not become payable until 60 days after the statement or proofs of loss are received. In view of all the foregoing considerations, it must be held, in accordance with what seems to be the rule under the weight of recent authority, that the failure to furnish the statement within 60 days merely postponed the time of payment to the specified time after it was furnished and did not defeat recovery; the action having been commenced after 60 days after the statement was furnished and within 12 months after the fire. Insurance Co. v. Whitaker, 112 Tenn. 151, 79 S. W. 119, 64 L. R. A. 451, 105 Am. St. Rep. 916; Indian, etc., Bank v. Hartford F. Ins. Co., 46 Fla. 283, 35 South. 228; Steele v. German Ins. Co., 93 Mich. 81, 53 N. W. 514, 18 L. R. A. 85; Mason v. St. Paul, etc., Ins. Co., 82 Minn. 336, 85 N. Phoenix Ins. Co., 95 Wis. 618, 70 N. W. 828; [ court, and between the date of its submis Welch v. Fire Ass'n, 120 Wis. 456, 98 N. W. sion and decision, to wit, on August 13, 227; So. F. Ins. Co. v. Knight, 111 Ga. 622, 1908, the defendant Robert Hewitt had died. 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. Said fact appearing to this court, and that 216; Gerringer v. N. C. Home Ins. Co., 133 plaintiff in error did not desire a revivor N. C. 407, 45 S. E. 773; Rheims v. Stand. against the administrator and heirs of said F. Ins. Co., 39 W. Va. 672, 20 S. E. 670; Hewitt, and had withdrawn in this court all Munson v. Ger. Ins. Co., 55 W. Va. 423, 47 claim for use and occupation of the premS. E. 160; Taber v. Royal Ins. Co., 124 Ala. ises recovered, and desired only to be pos681, 26 South. 252; Allen v. Mil., etc., Ins. sessed of his homestead, it was ordered that Co., 106 Mich. 204, 64 N. W. 15; Insurance said judgment be and the same was set Co. v. Owens, 69 Kan. 602, 77 Pac. 544. It aside, and said opinion and mandate recalled, is a fact that respectable authorities have with directions to the clerk to refile said announced a different rule. The weight of opinion and enter the judgment in said cause recent authority, however, supports the rule nunc pro tunc as of the date when said as announced. 13 Am. & Eng. Ency. of cause was submitted. It was further orLaw (2d Ed.) 329; 4 Cooley, Briefs on Ins. dered that, before filing said opinion, the p. 3369; 1 Clement, Fire Ins. p. 201, rule 9; same be and it was corrected in so far that 4 Joyce on Ins. § 3282. the cause was remanded, not for new trial, but with directions to the trial court to set aside the deed complained of, put plaintiff in possession of his homestead by proper process, and quiet his title thereto as prayed. On the coming down of the mandate to this effect the same was spread of record in the trial court, and judgment entered according There are other errors briefly referred to by defendant. It would not be profitable to discuss these. The main contentions have been answered, and, finding no error, the judgment is affirmed. Judgment affirmed. CAMPBELL, C. J., and GARRIGUES, J., ly, save and except that no process issued or concur. (28 Okl. 718) STATE ex rel. GOLDSBOROUGH v. HUSTON, District Judge. (Supreme Court of Oklahoma. May 9, 1911.) (Syllabus by the Court.) APPEAL AND ERROR (§ 1194*)-MANDAMUS (§ 4*)-REVIEW-REMAND-ACTION OF LOWER COURT. The district court may hear and determine any matters left open by the mandate of this court, and judgment rendered and entered thereon can be reviewed in this court by a new proceeding in error only. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4651; Dec. Dig. § 1194 Mandamus, Cent. Dig. §§ 9-34; Dec. Dig. § 4.*] Application by the State, on the relation of W. H. Goldsborough, for a writ of mandamus to A. H. Huston, Judge of the District Court of Kingfisher County. Denied. See, also, 26 Okl. 861, 110 Pac. 907. F. W. Jacobs, for plaintiff. Pat Nagle, C. G. Horner, and Devereux & Hildreth, for defendant. TURNER, C. J. In Goldsborough et al. v. Hewitt, 23 Okl. 66, 99 Pac. 907, this court held the deed from Wm. H. Goldsborough to Robert Hewitt, dated February 18, 1897, to the homestead in controversy, without consideration and void; that Louise Caldwell, the divorced wife of Goldsborough, had no interest therein; and reversed and remanded the cause. On the coming down of the mandate the trial court spread the same of record, but refused to proceed further it appearing that pending said cause in this was directed to issue to put plaintiff in possession. This is an original proceeding in mandamus to require respondent, as judge of said court, so to do in obedience to said mandate. Showing cause, as ordered by the alternative writ, respondent pleaded, in effect, that at the time of entering said judgment on the mandate the heirs of said Hewitt (naming them) filed in his court, with notice to said Goldsborough, in effect, a petition in intervention, pursuant to article 24 of the Code of Civil Procedure of the state of Oklahoma, commonly known as the "Occupying Claimant's Act," setting up that their father, said Hewitt, had been in quiet possession of said land for 15 years, up to the time of his death, since which time, about 2 years, they had remained in quiet possession thereof; that said Hewitt was holding said land under the deed set aside, and had made lasting and permanent improvements thereon, consisting of buildings, fences, and the clearing of 60 acres of timber land thereon, and prayed that an entry be made upon the journal, and a date set for the trial of their rights as occupying claimants under said act; that, after hearing said petition, the application for relief under said act was denied, and judgment rendered accordingly and as stated; that petitioners thereupon prayed an appeal to this court, where their proceeding in error is now pending, in which said Goldsborough is defendant in error, to review said judgment, with supersedeas bond filed in his court fixed at $400; that he is informed and believes that said appeal is in good faith, and not for the purpose of delay, and that For other casos see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 116 P.-11 (Okl Error from District Court, Caddo County; Frank M. Bailey, Judge. the judgment appealed from was rendered and entered prior to the application for the alternative writ in this cause; that in Action by William H. Masterson against his opinion said heirs have a right under the First National Bank of Anadarko. Judg. said act to petition as they did, and appeal ment for plaintiff, and defendant brings from his judgment denying their petition, | error. Affirmed. and invoke the opinion and decision of this court thereon; and asks to be discharged, H. Carswell, for defendant in error. A. J. Morris, for plaintiff in error. C. etc. KANE, J. This was an action commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover the sum of $1,000 alleged to have been deposited with the defendant in the ordinary course of business. The de On the coming down of the mandate, obedience to which is sought to be enforced by our peremptory writ of mandamus, while it commanded the trial court to put plaintiff in possession, for the reason that it did not contemplate the rights of these interveners as occupying claimants of said land, that fendant answered, in substance admitting the question was left open by the mandate. It deposit, but alleging that plaintiff, at the is well settled that the trial court may de- time the deposit was made, was indebted cide any matters left open, and its decision to the bank on an overdraft, which was thereon is subject to be reviewed by a new reduced to a note and afterwards reduced to proceeding in error. 13 Ency. Pl. & Pr. p. a judgment. To this answer the plaintiff 593, note 1; Francis E. Hinkley v. Levi P. replied, admitting the judgment, but that Morton et al., 103 U. S. 764, 26 L. Ed. 458; it has been extinguished by a discharge in Magwire v. Tyler et al., 17 Wall. 253, 21 L. bankruptcy. Upon the issues thus joined Ed. 576; Mason et al. v. Pewabic Co. et al., there was judgment for the plaintiff, to re153 U. S. 361, 10 Sup. Ct. 224, 33 L. Ed. 524. verse which this proceeding in error was In the case last cited the Supreme Court sent commenced. its mandate to the Circuit Court, and ordered that one of the parties recover cost. On the coming down of the mandate the Circuit Court considered an application for an extra allowance of cost out of the funds in court to the counsel of such party. The petition was denied, and judgment rendered accordingly. On appeal the Supreme Court held that the remedy of the appellant lay in an appeal to the Circuit Court of Appeals for the Sixth Circuit. Nothing more being sought by the heirs of Hewitt in their proceeding in error, which is cause No. 2,223, J. A. Hewitt et al. v. W. H. Goldsborough et al., 119 Pac. 983, now pending in this court, the peremptory writ of mandamus prayed for in this cause will not issue. All the Justices concur. A discharge in bankruptcy, until set aside or reversed in a direct proceeding, is conclusive upon all parties to the proceedings, and cannot be attacked collaterally. [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. §§ 843-852; Dec. Dig. § 419.*] [1] It is admitted that there was a discharge in bankruptcy by a court of competent jurisdiction, which would extinguish the judgment against the plaintiff if it were not for the fact, as contended for by counsel for defendant, that the bankruptcy court failed to enter an order showing that the plaintiff had been adjudicated a bankrupt. We do not believe this contention can be sustained. Bankruptcy courts are on the same footing as courts of general jurisdiction, respecting the finality and conclusiveness of their records and judgments; and when judgments are rendered by them upon questions arising in bankruptcy proceedings, they possess all the incidents of finality and conclusiveness appertaining to courts of general jurisdiction. Their judgments, unless reversed on appeal or writ of error, import absolute verity. Edelstein v. United States, 149 Fed. 636, 79 C. C. A. 328, 9 L. R. A. (N. S.) 236. Collier on Bankruptcy, p. 12, says: "Such courts are not inferior courts in the sense that essential jurisdictional facts must affirmatively appear on the record." Brandenburg on Bankruptcy (3d Ed.) p. 856, states the rule as follows: "A certificate of discharge in bankruptcy, signed by the judge, and attested by the clerk under the seal of the court, is the means by which the bankrupt is to prove and have the benefit of his discharge, and is conclusive evidence of the jurisdiction of the court, and of the fact 2. BANKRUPTCY ( 23*)—JurISDICTION-WHEN and the regularity of the discharge, but is ATTACHES. For jurisdictional purposes, bankruptcy proceedings are commenced by the filing of the original petition. [Ed. Note.-For other cases. see Bankruptcy, Cent. Dig. § 25; Dec. Dig. § 23.*] not conclusive evidence in favor of other parties seeking to use it. Since it is conclusive of the regularity of the proceedings, it can only be attacked in the court granting it upon proper proceedings." On page 261 the |