erally given the same meaning, and, when applied to a building or structure, do not require that the materials of which it is composed shall be utterly destroyed or obliterated, but only that the building, though some part of it remains standing, shall have lost its identity and specific character and have become a broken mass, so that it can no longer, with propriety, be designated as a building: Commercial etc. Co. v. Meyer, 9 Tex. Civ. App. 7; Oshkosh etc. Co. v. Mer cantile Ins. Co., 31 Fed. Rep. 200. If the subject of insurance is a building or structure consisting partly of brick or other substances not destructible by fire, it is evident that there cannot be a total loss or a complete destruction in the physical sense of those terms, and that something must always remain and may often be of such ap preciable value that it must be taken into consideration in estimating the amount of loss which has been suffered. This, however, does not show that the property has not been "wholly destroyed" or is not "a total loss" within the meaning of the policy, if it can no longer, with propriety, be regarded as a building. The question is not, whether all the parts and materials composing the building are absolutely and physically destroyed, but whether, after the fire, what remains has lost its identity and specific character as a building: Williams v. Hartford Ins. Co., 54 Cal. 443; 35 Am. Rep. 77; Barnard v. National etc. Ins. Co., 38 Mo. App. 106. Though the brick walls, or the greater portion of them, remain, yet, from the destruction of the roof and the interior portion of the building, it may have lost its character as such, and may properly be regarded as a "total loss" or as "wholly destroyed," especially if that which remains is liable to fall and must, therefore, be regarded as dangerous to the inbabitants of the city, who have a right to walk and be in such close proximity to the ruins as to be exposed to peril therefrom: Hamburg etc. Ins. Co. v. Garlington, 66 Tex. 103; 59 Am. Rep. 613. Though the foundations and cellar of an insured building remain entire, together with a great portion of the sills standing on top of the stonework, there is no error in instructing a jury that there has been a total loss of such building: Lindner v. St. Paul etc. Co., 93 Wis. 526. Undoubtedly, no matter how great a portion of the building may remain unconsumed, yet if it is so injured that it must be torn down or that what remains cannot be utilized in reconstructing the building without incurring greater expense than if it were not so utilized, the property must be regarded as having been "wholly destroyed": O'Keefe v. Liverpool etc. Ins. Co. (Mo.), 41 S. W. Rep. 922; Germania Ins. Co. v. Eddy, 36 Neb. 461; Harriam v. Queen Ins. Co., 49 Wis. 71; Seyk v. Millers Ins. Co., 74 Wis. 67. A mill and the machinery therein were insured for a sum specified, and the statutes of the state in which they were situated provided that, if the property insured should be wholly destroyed without the criminal fault of the Insured or his assigns, the amount of the insurance written in the policy should be taken to be the true value of the property when insured and the true amount of loss and measure of damages, when destroyed. A small part of the machinery was afterward removed for the purpose of repairs. Thereafter the building and the remain

der of the machinery were destroyed by fire, and it was claimed by the insurer that the removal and nondestruction of this small amount of machinery prevented the property from being "wholly destroyed" within the meaning of the statute. The court held that such was not the case, because "all the property covered by the policy at the time of the fire was wholly destroyed. The property insured was a mill, and the fire destroyed its identity and specific character as Buch. The words 'wholly destroyed' have been placed in statutes like this in many of the states of the Union, and, so far as we have been able to find, the construction appears to be uniform that, as applied to buildings, they mean totally destroyed as a building, although there is not an absolute extinction of all its parts. It matters not that some debris remains which may be useful or valuable for some purposes": Havens v. Germania Ins. Co., 123 Mo. 403; 45 Am. St. Rep. 570.

It is error to instruct the jury that there has not been a total loss if any substantial or considerable portion of the walls of the building remain, so that they can be used in its reconstruction or repair. It is sufficient that the building has been so destroyed that no part of it remains intact or substantially uninjured, so that it cannot be utilized in effectually restoring the structure to its entirety. If walls, though standing, are rendered substantially unfit for use in a new structure, the building must be regarded as "wholly destroyed": Ampleman v. Citizens' Ins. Co., 35 Mo. App. 308; Ampleman v. North British Ins. Co., 35 Mo. App. 317. "What is the meaning of the words 'totally destroyed' when applied to a building? If the building was constructed of brick or other noncombustible material, fire could not destroy that. Therefore, the brick or other material not destroyed would have some value which the party retaining should pay for. From the nature of the case, therefore, the words referred to do not mean the debris from a building destroyed. This may have some value, and, if so, the insurance company, if it pays the loss, is entitled to compensation therefor. The words, when applied to a building, mean totally destroyed as a building; that is, that the walls, although standing, are unsafe to use for the purpose of rebuilding, and must be torn down, and a new building erected throughout": German Ins. Co. v. Eddy, 36 Neb. 461, 466.

In all of the cases coming within our observation other than the principal case either the court or the jury had determined that the loss or destruction was total or complete. As already suggested, the question is often one of fact for the determination of the jury, and its verdict will not be set aside, unless influenced by incorrect Instructions or manifestly against the weight of the evidence: Corbett v. Springgarden Ins. Co., 85 Hun, 250. In the principal case, however, the facts were probably such as to have justifled a finding that the loss had not been a total one. The defendant offered to prove by experts what would be the cost of repairing and restoring the building to its original usefulness, strength, and utility, and that such cost bore so slight a proportion to the value of the building when repaired as to amply justify such repairs. For the exclusion of evi

dence of this character the judgment of the trial court was reversed, and the court, after fully considering the authorities upon the subject, formulated the following test, which seems to us to be the most practical and well-considered that has been advanced in any of the opinions. It is as follows: "We are of opinion that there can be no total loss of a building so long as the rest of the structure standing is reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the injury; that vhether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as that in question was before the injury, would, in proceeding to restore the building to its original condition, utilize such remnant as such basis; that upon such issue the character of evidence offered and rejected in the case is competent; that our statute providing that ‘a fire insurance policy in case of a total loss by fire of property insured shall be held and considered to be a liquidated demand against the company for the full amount of such policy, provided that the provisions of the article shall not apply to personal property,' does not affect the character of evidence admissible on the issue as to whether the loss is total, but merely affects the rights of the parties in case of total loss": Royal Ins. Co. v. McIntyre, 90 Tex. 170; ante, p. 797.

The right to repair a building or other structure which has been partially destroyed by fire may be rendered impossible of exercise either by the fact that the condition of the building before its destruction was imperfect, so that after it has received further damage from the fire it cannot safely be repaired, or there may be some municipal ordinance or other law existing at the time when the insurance was effected, as well as at the time when the loss was suffered, forbidding the repairing of the property. The question then arises whether either of these conditions of affairs will justify a court in declaring the loss to be total or the property to be wholly destroyed. The few cases which have arisen involving this subject have resulted in favor of the assured and affirmed his right to recover. In Louisiana, a building which was old and out of condition at the time it was insured afterward was damaged by a fire, leaving much of the building undestroyed, but, nevertheless, in such a condition that it could not be repaired so as to furnish a safe building. The court said: "Irrespective of all considerations of the public safety, is not the assured entitled, under any consideration of the policy, to some other and better indemnity for a loss by fire than the costs by repairs on the building that cannot be made safe by any repairs? A total loss may be claimed though the walls of a building stand, and the elements that composed it are not entirely consumed. It is the same, we think, when the insured building cannot be made safe by repairs. Nor will it make any difference in such cases of constructive total loss that the condition after the fire is due in part to causes arising before. Such causes are deemed the remote, not the proximate, cause of the loss. The insurer taking a risk on an old, and in this instance an insecure, building incurs the obligation to pay for a total loss, if the injuries by fire, combined with antecedent defects,

make repairs impracticable": Monteleone v. Insurance Co., 47 La. Ann. 1563.

In England, an insurer of a building against loss from damage by fire reserved to himself the right of reinstating the property, instead of paying the amount of damages. After a fire, the commissioners of sewers, acting under the metropolitan building act, caused the remaining building to be taken down as in a dangerous condition, and would not permit its reinstatement. The insurance company pleaded these facts as a defense in an action brought against it. The plea was, however, overruled, for the reason that, having undertaken either to reinstate the building or to pay the amount of the damages, the insurer could not defend upon the ground that he was unable to reinstate because of the act of the commissioners of sewers and their refusal to permit the repairing of the building: Brown v. Royal Ins. Co., 1 El. & E. 853. Questions somewhat similar have arisen in this country where wooden buildings have been insured which were within the fire limits of a municipal corporation, an ordinance of which forbade the repairing or reconstructing of such buildings. When a loss had been incurred from the peril insured against to such an extent that the repairing or reconstructing could not proceed without a violation of the ordinance, it was held that such ordinance must be regarded as a part of the contract of insurance, because it was an existing law at the time when the insurance was effected and applicable to the property insured, and, therefore, that the assured must be deemed as having suffered a total loss of the property insured, and entitled to recover, though doubtless the insurer would be entitled to have considered, as in mitigation of damages, the actual value of what remained of the building after taking into consideration the fact that it could not be repaired and that the materials thereof must be taken down and removed: Brady v. Northwestern Ins. Co., 11 Mich. 425; Hamburg etc. Ins. Co. v. Garlington, 60 Ter. 103; 59 Am. Rep. 613.

INSURANCE-MARINE--TOTAL LOSS-WHAT IS.-It seems that the proper rule to ascertain whether there has been a total loss of a vessel is to determine whether the injury is to more than half the value of the vessel when repaired. Such an injury is a total loss: Dickey v. American Ins. Co., 3 Wend. 658; 20 Am. Dec. 763. See Abbott v. Sebor, 3 Johns. 39; 2 Am. Dec. 139; Aranzamendi v. Louisiana Ins. Co., 2 La. 432; 22 Am. Dec. 136, and note.

DANIEL v. MASON.

[90 TEXAS, 240.]

MARRIED WOMAN, ESTOPPEL AGAINST.-The execution and delivery of a conveyance as a feme sole by a married woman to a person having no knowledge of her coverture, and her receiving and retaining the purchase price, cannot estop her nor her heirs from urging that she was married at the execution of such conveyance, and that it is void because her husband did not join therein A BONA FIDE PURCHASER FROM A MARRIED WOMAN having no knowledge of her coverture and her consequent inability to convey without her husband joining with her is not protected either as against her or her heirs; and she and they may therefore recover of such purchaser or his successor in interest the property so conveyed, though the purchase price was paid to, and retained by, her, and there is no offer to restore it to the purchaser.

Sidney L. Samuels, for the plaintiffs in error.

Seth W. Stewart, for the defendant in error.

212 DENMAN, A. J. It appears from the findings of fact by the trial court in this cause that James Coffey, common source of title, on the eleventh day of November, 1881, conveyed to Nora Daniels, the then wife of Thomas J. Daniels, the land in controversy, situated in Tarrant county, Texas, the deed reciting a consideration paid of five hundred dollars, with no word or expression therein indicating that the same was conveyed to her as her separate estate; that Nora Daniels, on the second day of August, 1882, conveyed said land by general warranty deed to John T. Mason, who paid a valuable consideration therefor, said Mason purchasing in good faith, believing that Nora Daniels had a right to convey said land, said deed being acknowledged in the ordinary form required by statutes of Texas for a single person or feme sole, there being nothing in the deed to indicate whether Nora Daniels was single or married, beyond the fact that the acknowledgment was as above indicated and her husband did not join ber in its execution; that said Mason, in consideration of nine hundred and fifty dollars, on the thirteenth day of May, 1834, executed and delivered to Rowena M. Mason a general warranty deed for said land, which consideration was then paid in good faith by said Rowena M. Mason without notice of the fact of coverture of said Nora Daniels; that Nora Daniels died in 1892, 243 leaving her said husband and following children, to wit, Nora, Thomas, and Marie Daniels, surviving her; that each of the deeds aforesaid was, immediately after execution, duly recorded in the county where the land was situated; that there was no evidence of any deception or misrepresentation on the part of ora Daniels in executing said deed, other than such as might