The policy of insurance, with the written indorsement thereon, was at the time of its execution delivered to Mrs. C. M. Parker, who paid a valuable consideration therefor. On November 14, 1883, Daniel Snyder died. After the death of Daniel Snyder, and prior to August 2, 1884, Mrs. Parker wrote the word "Canceled" across the face of said assignment, on the back of the policy, and signed the same: "Canceled. C. M. PARKER.” Mrs. Parker then delivered the policy to Elizabeth Snyder and Desylvia Kinsey nee Snyder. On August 2, 1884, Elizabeth Snyder and Desylvia Kinsey executed another written instrument of assignment on the back of the policy, as follows: "For value received, we hereby sell and assign to Joseph McCrum the within policy, and authorize him to collect the same.

“August 2, 1884.”

"ELIZABETH SNYDER.
"DESYLVIA KINSEY.

At said time Elizabeth Snyder and Desylvia Kinsey delivered the policy of insurance, with all the indorsements thereon, to Joseph McCrum, who commenced this action to recover the amount of the insurance policy in the court below. Mrs. Parker was not in any way related to nor a creditor of Daniel Snyder. The proof of death of Daniel Snyder was presented on behalf of Mrs. Parker about December 26, 1883, and this embraced the affidavits of Elizabeth Snyder and Desylvia Kinsey, and also the certificate of the physician who attended Daniel Snyder to the time of his death.

Under the circumstances, we do not think that McCrum can recover upon the policy. It was decided in Insurance Co. v. Sturges, 18 Kan. 93, that “a person who has no interest in another's life cannot purchase or take by assignment an insurance policy on such life. Such a thing would be clearly against public policy, and is not authorized by law." To the same effect are Warnock v. Davis, 104 U. S. 775; Gilbert v. Moose, 104 Pa. St. 74: Ruth v. Katterman, 112 Pa. St. 251; S. C. 3 Atl. Rep. 833; May, Ins. (2d Ed.) § 74. The exact question now at issue was not passed upon in Insurance Co. v. Sturges, because in that case the insurance company only claimed the assignment was void. Mrs. Parker, who accepted the assignment and paid for the policy, had no insurable interest in the life of the insured. Therefore the policy was not assignable to her. She took the policy solely for the purpose of speculation. The speculation was upon the life of the insured, and the sooner that was determined the better the speculation. The policy so obtained was a mere wager, and void. The sale and transfer thereof to Mrs. Parker by Elizabeth and Desylvia Snyder, the beneficiaries, was an attempted fraud upon the insurance company by which it was issued. After Mrs. Parker took the policy, if she could collect anything thereon, she was thereby directly interested in the early death of the insured. The insurance company issuing the policy did not intend it should reach or belong to any one directly interested in his death. The law will not permit a person thus interested to enforce a policy of insurance. All such speculation or traffic in human life, independent of any statute, is condemned as being against public policy, and therefore not to be tolerated.

All the time Mrs. Parker had possession of the policy she believed that upon the death of the insured she would be paid the full amount thereof. All this time she was directly interested in the speedy death of the insured. This policy was placed in her possession, not only with the written consent of the beneficiaries, but upon a valuable consideration paid to them for the same. They therefore aided in creating in the mind of Mrs. Parker a desire for the early death of the insured. They held out to her the temptation to bring about the event insured against. Mrs. Parker was not successful in obtaining any money upon the policy, because she ascertained after the service of proof of death by her that it could not be collected in her hands, and

therefore handed the same back to the beneficiaries. The law does not tolerate attempted frauds any more than it does those that are consummated. In making the transfer and assignment, and in receiving the money therefor, the beneficiaries, Elizabeth and Desylvia Snyder, were participants with Mrs. Parker in the attempted fraud upon the insurance company. The whole transaction between the beneficiaries and Mrs. Parker contravenes public policy, and the law leaves the parties as it found them. As Mrs. Parker cannot enforce the policy, and as the transfer and assignment of the policy to Mrs. Parker by the beneficiaries is against public policy, and under the ban of the law, the beneficiaries ought not to be permitted to enforce the policy. Their assignee (McCrum) stands in their shoes, and is entitled to no greater rights or privileges than they are.

If Mrs. Parker, before the death of the insured, had demanded from the beneficiaries the money that she had paid for the assignment, upon the ground that the sale to her was void, she could not have recovered. If the beneficiaries can now recover, they are doubly benefited by the questionable transaction in which they were engaged-First, by receiving the value of the policy from Mrs. Parker; and, second, by receiving the value of the policy again from McCrum. It was said in the case of Gilbert v. Moose, supra, that "so fraught with dishonesty and disaster, and so dangerous to even human life, has this life insurance gambling become, that its toleration in a court of justice ought not for a moment to be thought of." If the party who attempts to speculate in human life cannot enforce the policy which he has purchased on the life of another, in whose life he has no insurable interest, the beneficiaries, who knowingly and purposely sell and assign to such a person the policy on the life of another for a valuable consideration, ought not thereafter to be permitted to enforce the same for their own benefit. If, under all the facts of this case, the beneficiaries, or their assignee, could recover, the law forbidding the assignment of policies of insurance to parties who have no insurable interest might be readily avoided. If Mrs. Parker had been a creditor of the insured for any sum, the assignment would have been a valid contract, as security for the same. And, upon the death of the insured, the assignee could have collected any sum lent to or owed by the insured, and the balance would have belonged to the beneficiaries or their assignee. Such a case is not presented.

The

Frank v. Mutual Life Ins. Co., 6 N. E. Rep. 667, (New York court of appeals,) is referred to as an authority that the beneficiaries can maintain an action upon the policy notwithstanding the assignment to Mrs. Parker. courts of New York hold that a valid policy of insurance, effected by a person upon his own life, is assignable like an ordinary chose in action, and that the assignee is entitled, upon the death of the insured, to the full sum payable, without regard to the consideration given by him for the assignment, or to his possession of any insurable interest in the life of the insured. St. John v. Insurance Co., 13 N. Y. 31; Valton v. Assurance Co., 20 N. Y. 32. This court refused to follow the decisions of New York in Insurance Co. v. Sturges. The decision in Frank v. Insurance Co., supra, was rendered under a statute making a policy procured on the husband's life, for the benefit of the wife, unassignable. The validity of an assignment of a policy to one having no insurable interest in the life of the insured did not enter into the case. There was a want of power to assign. Therefore that case has no affinity with the one under consideration.

Finally, it is insisted, as there is no claim in the answer of the insurance company that the assignment of the policy to Mrs. Parker was invalid, the insurance company had no right subsequently to urge that the assignment was worthless, or the policy non-enforceable on account of such assignment. The issues of a case are made up from all of the pleadings. The amended reply of the plaintiff below stated that Mrs. Parker "had no insurable interest in

the life of Daniel Snyder, and that the assignment to her was void." The question is whether, upon the whole case as presented, the plaintiff is entitled to recover. It is not for the sake of the insurance company that the transactions between the beneficiaries and Mrs. Parker are held wrongful, but such rule is founded on general principles of public policy forbidding speculative contracts upon human life. In all such cases the courts ought not to lend their aid to assist parties engaged in the perpetration, or attempted perpetration, of such wrongful speculations. Hinnen v. Newman, 35 Kan. 709; S. C. 12 Pac. Rep. 144; Insurance Co. v. Sturges, supra.

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. (All the justices concurring.)

(36 Kan. 165)

WARDEN v. SABINS and others.

(Supreme Court of Kansas. January 7, 1887.) MECHANIC'S LIEN-PRIORITY-OTHER INCUMBRANCES-Deed.

Under the provisions of article 27, c. 80, Comp. Laws 1879, the lien of a mechanic or material-man for work done or material furnished, has preference to "all other liens and incumbrances" which may attach to or upon the lands or buildings subsequent to the commencement of the building or the making of the repairs, or the furnishing of the material; and the words of the statute "of all other liens and incumbrances " also embrace conveyances.

(Syllabus by the Court.)

Error from Marshall county.

On November 16, 1884, W. H. Sabins commenced his action in the district court of Marshall county to enforce a mechanic's lien, amounting to $19.50, with interest, upon the premises described as lots 49 and 50, in block 25, in the town of Irving, in that county. James S. Warden, B. Smith, William Murphy, Jr., and J. Armstrong were named defendants. William Murphy, Jr., made default, and the other defendants filed answers and cross-petitions. On March 25, 1885, the following agreed statement of facts, omitting court and title, was filed in the case, with the clerk of the district court:

"It is hereby stipulated and agreed, by and between the plaintiff, William H. Sabins, and the defendants James S. Warden, B. Smith, and Joe Armstrong, that the matters herein in controversy be submitted to the court upon this agreed statement of facts, which are all the facts in the case:

"First, that all the allegations, statements, and averments made and contained in petition of plaintiff, William H. Sabins, and in the answers and cross-petitions of the defendants B. Smith and Joe Armstrong, are true, and that the said plaintiff and the said defendants, B. Smith and Joe Armstrong, are entitled to judgment as prayed for in the petition of plaintiff, and in the answers and cross-petitions of B. Smith and Joe Armstrong, unless defeated by the facts contained in statement No. 2 herein.

"No. 2. That on the twenty-fifth day of April, A. D. 1884, the defendant, James S. Warden, purchased from William Murphy, Jr., for the consideration of $300, lots 49, 50, in block 25, Irving, Kansas, described in the petition of plaintiff, and in the answers and cross-petitions of B. Smith and Joe Armstrong, and on said day received from said Murphy a deed duly executed, with full covenants of warranty, and which said deed was duly filed for record in the office of register of deeds of this county, on the twenty-ninth day of April, 1884, and was duly recorded in the office of the register of deeds of said county. "WILLIAM H. SABINS,

"B. SMITH, and

"JOE ARMSTRONG,

“By J. N. BROUGHTON, their Attorney.
"JAMES S. WARDEN,

"By GEORGE C. BROWNWELL, his Attorney."

Trial had at the March term for 1885, a jury being waived, and the issues being submitted, by the parties appearing, to the court, upon the agreed statement of facts.

After argument, and consideration thereof, the court found generally in favor of the plaintiff, W. H. Sabins, and also in favor of B. Smith and Joe Armstrong, and against William Murphy, Jr., and James S. Warden. Judgment was rendered thereon for W. H. Sabins against William Murphy, Jr., for $20.50, and in favor of B. Smith, against William Murphy, Jr., for $31.75, and in favor of J. Armstrong against William Murphy, Jr., for $95. The court decreed that said judgments were concurrent liens upon the premises described in the petition, and that the parties recovering the judgments were entitled to have their respective liens enforced against said real estate. The court further decreed that the rights and interests of James S. Warden were subject to and inferior to the said liens of W. H. Sabins, B. Smith, and J. Armstrong. James S. Warden filed and presented his motion for a new trial, which was overruled. He excepted, and brings the case to this court.

A. E. Park and Brownell & Gregg, for plaintiff in error. John A. Broughton, for defendants in error.

HORTON, C. J. The mechanics' liens allowed by the trial court were as follows: W. H. Sabins, $20.50, for work and labor performed April 15, 16, and 17, 1884; B. Smith, $31.75, for material furnished from March 22, 1884, to April 16, 1884; and J. Armstrong, $95, for material delivered between February 1, 1884, and April 17, 1884. The first lien was filed May 10, 1884; the second lien, May 13, 1884; and the third lien, May 17, 1884. Warden purchased the premises from William Murphy, Jr., the owner thereof, April 12, 1884, for the consideration of $300, and received a warranty deed, which was duly filed for record April 29 of that year. Hence the question for our determination is whether the sale of the premises, in good faith, by Murphy to Warden, before the mechanics' liens were filed, prevented the acquisition of any lien, where Warden had no actual notice of the amount thereof.

Section 630, art. 27, c. 80, Comp. Laws 1879, reads as follows: "Any mechanic or other person who shall, under contract with the owner of any tract or piece of land, his agent or trustee, or under contract with the husband or wife of such owner, perform labor, or furnish material for erecting, altering, or repairing any building, or the appurtenances of any building, or any erection or improvement, or shall furnish or perform labor in putting up any fixtures or machinery in or attachment to any such building or improvement, or plant or grow any trees, vines, and plants, or hedge or hedge fence, or shall build a stone fence, or shall perform labor or furnish material for erecting, altering, or repairing any fence on any tract or piece of land, shall have a lien upon the whole tract or piece of land, the buildings and appurtenances, in the manner herein provided, for the amount due to him for such labor or material, fixtures or machinery. Such liens shall be preferred to all other liens and incumbrances which may attach to or upon such lands, buildings, or improvements, or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, or planting or growing of such trees, vines, or plants, or hedge or hedge fence or stone fence, or the making of any such repairs or improvement; and if any promissory note, bearing not exceeding 12 per cent. interest per annum, shall have been taken for any such labor or material, it shall be sufficient to file a copy of such note, with a sworn statement that said note, or any part thereof, was given for such labor or material used in the construction of any such building or improvement, in the office of the district clerk; and it shall be necessary to file a list of items used, and the lien shall be for the principal and interest aforesaid, as specified in said note."

The section quoted expressly provides that "such liens shall be preferred to

all other liens and incumbrances which may attach to or upon such lands, buildings, or improvements, or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, * * * or the making of any such repairs or improvement." Therefore it is clear, from the language adopted, that the lien of the contractor or material-men must be preferred to all other liens and incumbrances upon the premises subsequent to the commencement of the building, the making of the repairs, or the furnishing of the material. The time when the lien is to be considered as acquired depends upon the provisions of the statute, as, independent of the statute, no such lien exists. The claims of mechanics and material-men are better protected if the commencement of the work, and the furnishing of the material, is the period from which the liens should date. The question arises, upon the statute, whether a conveyance is included in the words "all other liens and incumbrances."

The word "incumbrance" is a broader term than "lien," and yet, when the statute of Indiana only provided that "the liens created shall relate to the time when the persons furnishing materials began to furnish the same, and shall have priority over all liens suffered or created thereafter," etc., the supreme court of that state decided the lien of the mechanic related to the time when the work commenced, or the materials began to be furnished, as to "subsequent conveyances" as well as to other liens. Fleming v. Bumgarner, 29 Ind. 424. The same question was before the Indiana court in Kellenberger v. Boyer, 37 Ind. 188. The court followed the decision in Fleming v. Bumgarner, and said the construction given to the statute in that case did not extend the operation of the act beyond its evident spirit and the legislative intention. An incumbrancer is one who has a legal claim upon an estate, and the purchaser of premises under a conveyance is the holder of the legal estate. An absolute conveyance is an incumbrance in the fullest sense of that term. We do not think, therefore, that the preference given to the lien of the contractor or material-man, which operates "over all other liens and incumbrances," is confined solely to subsequent liens or mortgages, but also embraces "conveyances." In adopting this rule, no injustice is done to

the purchaser, as the work itself, or the material furnished, is notice to all of the mechanics' or material-men's claims. Phil. Mech. Liens, (2d Ed.) 380, § 227; Austin v. Wohler, 5 Bradw. 330; Gault v. Deming, 3 Phila. 337; Hahn's Appeal, 39 Pa. St. 409.

The cases cited from New York by counsel for defendant below are not applicable, as the statute in that case makes the filing of the notice of the mechanic's lien the time when the lien is to commence. In this state the statute is different. Noyes v. Burton, 17 How. Pr. 449; S. C. 29 Barb. 631. The judgment of the district court will be affirmed. (All the justices concurring.)

(36 Kan. 106)

SNAVELY V. ABBOTT BUGGY CO.

(Supreme Court of Kansas. January 7, 1887.)

1. REPORT AND CASE MADE-AMENDMENT.

A case made for the supreme court cannot be amended or supplemented in the supreme court by inserting anything therein, or attaching anything thereto, which did not belong to the "case made," and constitute a part thereof, when it was originally settled and signed by the judge, and attested by the clerk of the court below.

2. ERROR-ATTACHMENT-FINAL JUDGMENT.

An order of the district court overruling a motion to discharge an attachment is not reviewable in the supreme court until a final judgment has been rendered in

the case.

(Syllabus by the Court.)