vania, municipalities have the authority to offer rewards in such emergencies. Shaub v. City of Lancaster, 156 Pa. St. 366, 26 Atl. Rep. 1067; Borough of York v. Forscht, 23 Pa. St. 391. 2 Bac. Abr. 147, supports the doctrine that the power to prevent fires is incidental to all municipalities; while Mr. Dillon says: The governing body of a municipal corporation (which has express power to protect the property and promote the welfare of its inhabitants) may, it has been held, ' offer a reward for the detection of offenders against the general safety of the people, as, for instance, those guilty of the crime of arson within its corporate limits. The contrary doctrine has also been held.' The California supreme court is said to uphold the power, but we are unable to verify it from the citation given. Some of the States deny it. The latest case seems that of City of Winchester v. Redmond (Va.), 25 S. E. Rep. 1001, where authorities supporting it are collected. Of these some apply to other offenses, the commission of which affects the inhabitants of the city only in common with those of the State outside of the city. Thus, in Baker v. City of Washington; 7 D. C. 134, it was held that defendant had not authority to offer a reward for the capture of the slayer of President Lincoln. A similar case, involving a reward for murder, is that of Gale v. Inhabitants of South Berwick, 51 Me. 174. Patton v. Stephens, 14 Bush, 326, applied the same rule to a leward offered for the apprehension of one who, through forgery, had embezzled the city funds. The case of Hanger v. City of Des Moines, 52 Iowa, 193, 2 N. W. Rep. 1105, was another case of reward for the detection of a murderer. Butler v. City of Milwaukee, 15 Wis. 551, was not a case of arson, and seems to be within the principle of the preceding cases. The rewards in all of these cases are open to the criticism that they were not offered to preserve the welfare of the inhabitants of the municipality, as contradistinguished from those of the general public. The case of Murphy v. City of Jacksonville, 18 Fla. 318, is not in point, because governed by a prohibitive statute, which, in the absence of a 'general welfare clause' (which does not appear), is a sufficient reason for the decision. Crofut v. City of Danbury, 65 Conn. 298, 32 Atl. Rep. 365, is in point, and supports City of Winchester v. Redmond. "The danger of conflagration in cities and villages necessitates preventive measures that are not common in sparsely-settled districts, and such municipalities are authorized to expend large sums for apparatus to extinguish them. But these only serve to prevent the spread of fires. A determined incendiary in a city is a menace which cannot be safely disregarded, and may call for more than the ordinary methods to guard against his acts. We think the 'general welfare clause' is sufficiently broad to cover the employment of private detectives, through rewards, in such emergencies. We consider its exercise as 'contravening no provision of the constitution, and made in the exercise of the police power necessary to the safety of the city,' and, we may add, impliedly conferred upon it. See Baumgartner v. Hasty, 100 Ind. 580." DIVORCE ADULTERY -CONNIVANCE.-It is decided by the Supreme Court of Iowa, in May v. May, that adultery of a wife committed with a spy employed by the husband to test the wife's virtue, does not entitle him to a divorce. "On the one hand," says the court, "it is contended that defendant committed adultery with Blanchard, alias Brown, in the hotel, on the night in question; while on the other it is stoutly contended that, while the defendant may have been indiscreet, yet that she did not have any illicit relations with Blanchard, and that whatever was done was with the husband's connivance and consent. We do not find it necessary to determine which is right in this contention, although we may say that defendant's conduct was, to say the least, very injudicious. But, if it be conceded that the act of adultery was in fact committed, plaintiff is in no position to take advantage of it. The evidence very clearly establishes the fact that plaintiff induced Blanchard to go to his home, to act as a spy, to see if he could not discover the wife in the act of adultery. He lived there in that capacity for some time before he induced the defendant to go to McGregor, and she went on the false pretense that she was to go to Elkader to visit friends. Not only Blanchard was invited into plaintiff's home for the purpose of procuring evidence against his wife, but we are also satisfied that he was employed by plaintiff for the purpose of having intercourse with the defendant, if he found it possible to do so. If, then, Blanchard did have intercourse with defendant, it was with plaintiff's consent, and through his connivance, and he cannot be heard to complain. Cane v. Cane, 39 N. J. Eq. 148. That to which a party consents is not esteemed, in law, an injury,' is an old maxim, which is especially applicable to such a case as this. From the fact that the husband appeared upon the scene at the time he did, it is quite evident that he knew of the whole plan, and, in effect, consented to it. A court of equity will not grant relief under such circumstances. Pierce v. Pierce, 3 Pick. 299; Hedden v. Hedden, 21 N. J Eq. 61; Myers v. Myers, 41 Barb. 114. Plaintiff has no right to complain of his wife's conduct at McGregor." PURCHASE OF INCUMBERED LANDRIGHTS AND LIABILITIES OF PARTIES. It is not intended to present anything like a full discussion of all the points naturally within the scope of the above title. The purpose is to present some authorities upon some of the most difficult questions to be met with in the exhaustive study of the subject. There is little controversy upon certain questions involved, for instance: No matter how many sales of incumbered lands may be made, the land still remains the primary fund out of which the incumbrance must be discharged; always providing that the requirements of the recording acts be observed. Again, the acceptance of a deed by a grantee, contain. ing a recital that the grantee assumes and agrees to pay the incumbrance, constitutes a valid contract. But the courts are not in agreement as to the rights and remedies of all parties concerned under such contract. There is, likewise, a conflict in the decisions as to the rights and remedies of the parties, when a tract of land has been purchased, either at private or public sale, subject to an incumbrance; so this discussion will be confined to a consideration of those questions concerning which the courts are not in accord. a judgment lien, the amount thereof being deducted from the purchase money, and it was held that he could not question the validity of the judgment although it was not in fact a lien upon the land. This was approved in Skinner v. Reynick,2 in the case of a mortgage incumbrance on a government homestead, executed after the final proof and before patent. Forgy v. Merryman" was also, a case of a mortgage on a government homestead, which, on foreclosure, was contested by the mortgagor's grantee, who held under a quitclaim deed, consideration stated at one dollar; but the court held he had no right to question the mortgage. The case of Bond v. Dolby is distinguished from others, in this, that the agreement of the purchaser to pay the incumbrance was not contained in the deed, but rested in parol. The court upon conflicting evidence found there was such an agreement, and that the purchaser retained $200 out of the purchase money; and held that it was immaterial whether or not the grantor had a mortgagable interest in the premises when he executed the mortgage. In Jones on Mortgages," the rule is stated that when incumbrances are merely excepted from the warranties of the grantor to protect him upon his covenants the grantee may dispute the validity of the lien, when he had only bought subject to it. The rule stated is supported by a few cases there cited; but the writer doubts if the rule has any application or is followed in more modern conveyancing, for the reason that it is so generally true that the incumbrances are deducted from the purchase money, thus furnishing the controlling reason why the grantee should be held in all cases liable to pay them.7 I. Purchase Subject to Incumbrance.-The consideration of this question naturally divides into two heads: 1. Purchase at private sale. 2. Purchase at public sale. Of course when a purchaser agrees to pay a prior incumbrance bis liability is fixed and determined by the agreement. Furthermore, as a general thing his agreement is made in consideration of a deduction from the purchase money paid to the vendor, of a sum equal to the incumbrance assumed. Hence when the purchaser pays the incumbrance he only completes paying the full consideration contemplated when he made the contract. But when there is no agreement on the part of the purchaser to pay the prior incumbrance, different questions sometimes arise. In the first case the liability of the purchaser rests upon express contract, the purchaser's covenant in the deed, so to speak. In the second-Upon the question whether the purchaser case the liability rests upon the purchaser by operation of law as the result of the situation he has placed himself in. It cannot be said to rest upon contract. It is sometimes said that after he accepts a deed conveying the title subject to the incumbrance, the grantee is estopped thereby from questioning the incumbrance. First, then, we will consider the question in cases of: Private Sale.-In Kruger v. Harvester Co.,' plaintiff had purchased lands subject to 19 Neb. 526. Public Sale, Judicial or Upon Execution. of land at an execution or a judicial sale can contest the validity of prior, incumbrances, there appears to be a dearth of authorities. Jones states a rule held in Massachusetts to 2 10 Neb. 323. 3 Neb., 16 N. W. Rep. 836. 6 Williams v. Thurlow, 31 Me. 392; Weed Sew. Mach. Co. v. Emerson, 115 Mass. 554. 7 Bristol Sav. Bank v. Stiger (Iowa), 53 N. W. Rep. 265. 8 Jones on Mort., sec. 747, citing Stebbins v. Miller, 12 Allen, 591, and Russell v. Dudley, 3 Met. 147, 151. the effect, that where there was an execution sale of land incumbered by a prior mortgage, the purchaser was estopped to deny the mortgage, for the reason that he bought only an equity of redemption (under the rule that the legal title passed by the mortgage), and if there was no mortgage there was no equity of redemption. Also, that if there are several mortgages the purchaser at execution sale may contest those that are fraudulent and void or paid, and may redeem from the others; which appears to be an extraordinary rule, to say nothing more of it. Under the appraisement laws of Nebraska, where prior incumbrances are deducted by the sheriff at execution or judicial sales, it is held that a purchaser who takes advantage of such deduction and buys subject to the incumbrances deducted cannot afterwards question the validity of the incumbrance.9 In the first case cited the wife of the execution defendant held a mortgage which the sheriff deducted from the gross appraisal. Plaintiff, in a subsequent attachment suit, at the execution sale upon his judgment obtained in the attachment suit, bought the premises for two-thirds of the net appraisal (the least he could get it for under the law) after the mortgage was deducted. He was held estopped to contest the mortgage. In the second case cited there was a mortgage foreclosure, but a failure to make the holder of a subsequent mechanic's lien a defendant. At the sale the sheriff erroneously deducted the amount of the mechanic's lien from the gross appraisal, thus treating it as a prior lien. The plaintiff in the foreclosure suit bid the property in at two-thirds of the net appraisal, thus recognizing the mechanic's lien as prior to his mortgage; held, that he was estopped to deny its priority afterwards, citing Skinner v. Reynick and Forgy v. Merryman, supra, and other cases of private sale, in support of the principle involved, viz: That where a purchaser is permitted to buy land at a price reduced by the amount of a seeming prior incumbrance he gets the direct benefit of the deduction of that incumbrance, and, therefore, it would be inequitable for him to be permitted to afterwards question it. This rule has also been held by the New York Court of Appeals.10 9 Kock v. Losch, 48 N. W. Rep. 471; Nye v. Fahren holz, 68 N. W. Rep. 498. 10 Horton v. Davis, 26 N. Y. 496; Porter v. Parmley, But where a prior mortgage, which was deducted by the appraisers as a prior incumbrance, was afterwards declared fraudulent and set aside by the court at the suit of creditors, the title of the purchaser at the execution sale on a judgment, where the mortgage was deducted, although such title was obtained for a merely nominal consideration, will be upheld." Whether in such case the execution defendant, whose land was taken from him for almost nothing, could recover anything from the purchaser at the execution sale is not considered in that case; but inasmuch as he had executed the fraudulent mortgage and placed it on record it is likely that he would have to abide the consequences; and as this act resulted in the deduction of the mortgage from the gross appraisal being made by the sheriff, and the consequent purchase of the premises for a merely nominal sum, he is in no position to complain. Doubtless there are other cases bearing upon this question, but a pretty careful search on my part has not discovered them. An interesting question occurs, or is suggested, in the study of this subject, viz: Suppose an execution plaintiff is obliged to bid in the property at the sale for want of other bidders; suppose he knows of a pretended prior incumbrance, seeming to be all right upon the record, but such plaintiff has knowledge of matters which he thinks will enable him to have the court cancel the incumbrance, yet the sheriff, over whom the plaintiff has no control, proceeds to deduct the incumbrance from the gross appraisal thereby treating it as prior. Now, what shall the plaintiff do to protect himself? Can he make such a bid at the sale as will not operate as an estoppel upon his right to contest the incumbrance. Suppose, for instance, there are invalid taxes against the property? If the plaintiff should expressly ignore the deduction of the invalid taxes, made by the sheriff and make his bid for at least twothirds of the gross appraisal, would he not be in position to contest the taxes? II. When Grantee Assumes the Incumbrance. When the grantee accepts a deed containing the agreement on his part to pay the incumbrance, he is directly liable to his 52 N. Y. 185. See, also, Clute v. Emmerick, 99 N. Y. 342; Youmans v. Loxley, 56 Mich. 197. 11 McDonald v. Johnson, 38 Iowa, 72. grantor for the debt. 12 And it is not required of the mortgagor and grantor to first pay the debt before he can maintain an action against his grantee, who has assumed and agreed to pay the mortgage given by him.13 It seems clear that by the weight of authority, the grantee who assumes and agrees to pay an incumbrance is directly liable to the creditor of the grantor who has the lien.14 In the Wisconsin case the court says: "It is well settled by a long line of decisions in this State and elsewhere, that the person who engages another, on a sufficient consideration, to do some act for the benefit of some third person, is liable to the latter in an action for a breach of that engagement. The rule is of general application. It applies equally to specialties and to simple contract engagements; to written and to oral promises." Here a number of Wisconsin cases are cited and the court adds: "The case where the grantee of mortgaged premises assumes the mortgage debt constitutes no exception to the rule. His liability rests on the rule and is a logical consequence of the rule itself. If he undertakes to pay the debt he is liable for it as for his own debt. His undertaking in that case is absolute, to pay the whole debt, not limited to the payment of a contingent deficiency. He takes the place of the original debtor and makes the debt his own. His is the primary liability." In support of this proposition the court cites many decisions.15 And after sale of the premises a judgment for a deficiency may be taken against the grantee ;16 but this depends on whether 12 Stickter v. Cox (Neb.), 72 N. W. Rep. 848; Fisk v. Stevens (Utah), 33 Pac. Rep. 248; Stout v. Folger, 34 Iowa, 71; Schlatre v. Greund, 19 La. Ann. 125; Rubens v. Prindle, 44 Barb. 336; Wilson v. Stillwell, 9 Ohio St. 467; Rawson v. Copland, 2 Sandf. Ch. 278; Furnas v. Dargin, 119 Mass. 500; Locke v. Homer, 131 Mass. 93; Gage v. Lewis, 68 Ill. 604; Churchill v. Hunt, 3 Denio, 321; Thomas v. Allen, 1 Hill, 145; Jones v. Parks, 78 Ind. 537. 13 Stickter v. Cox (Neb.), 72 N. W. Rep. 848. 14 Gibson v. Hambleton (Neb:), 72 N. W. Rep. 1033; Stites v. Thompson (Wis.), 73 N. W. Rep. 774. 15 Jones on Mort., secs. 758-762 and cases; Boone v. Clark (Ill. Supp.), 5 L. R. A. 279, and cases cited in note, 21 N. E. Rep. 850; Gifford v. Corrigan (N. Y. App.), 6 L. R. A. 610, 22 N. E. Rep. 756; Rice v. Sanders (Mass.), 8 L. R. A. 315, 24 N. E. Rep. 1079; Jefferson v. Asch (Minn.), 55 N. W. Rep. 604; Hare v. Murphy (Neb.), 64 N. W. Rep. 211. See, also, Lowe v. Hamilton (Ind.), 31 N. E. Rep. 1117; Dodds v. Lannaux (La.), 12 South. Rep. 345. 16 Hand v. Kennedy, 83 N. Y. 149. his grantor was personally liable or not.17 In this Vrooman case there is an interesting discussion of the principles involved, but I am not satisfied with the conclusions of that learned court. It is there held that because the grantor was not personally bound to pay the debt the grantee could not be held by the mortgagee, there being a want of privity between the grantor and the mortgagee. it is almost universally held that such a promise by the grantee is really for the benefit of the mortgagee, and hence there is no need of any privity between him and the grantor of the promisor. But While to my mind this seems the better rule, yet there are many decisions holding to the contrary, and that the grantee cannot be held by the creditor and incumbrancer, except the grantor was personally liable.18 The case of Hare v. Murhpy, above cited, was brought on promissory notes, secured by the mortgage which the grantee (defendant) had assumed and agreed to pay, and a number of Nebraska cases are cited in support of the rule; and the court expressly says that the grantee is liable to the mortgagee whether his grantor was liable or not, for the reason that the promise was made for the benefit of the mortgagee, citing a number of cases. 19 In Bay v. Williams, supra, there was an attempt made by one of the grantors to release the grantee from his contract to pay the incumbrance, but the majority of the court held that the agreement was for the benefit of the creditor and could not be released by the grantor and debtor. Schofield, C. J., dissented from this view. To the same effect is Fisk v. Stevens.20 But upon this question there appears to be an irreconcilable conflict in the decisions; at least I shall not undertake, in this article, to harmonize the seeming conflict. Many cases seem to hold that after delivery of the deed containing the agreement to pay an outstanding incumbrance, a new deal may be made between the grantor and his grantee whereby the contract may be extinguished and cancelled. On the other hand many cases are cited, mostly in New York, which hold that 17 Vrooman v. Turner, 69 N. Y. 280.1 18 15 Am. & Eng. Encyc. of Law, 841. 19 Merriman v. Moore, 90 Pa. St. 78; Dean v. Walker, 107 Ill. 540; Bay v. Williams (Ill.), 1 N. E. Rep. 340. 20 Utah, 33 Pac. Rep. 248. 21 15 Am. & Eng. Encyc. of Law, 340, and cases cited. the agreement is irrevocable because for the benefit of the mortgagee or other lienholder.22 III. Suretyship.-In the Wisconsin case of Stites v. Thompson, the court also says, in speaking of the liability of the grantee and his grantor: "As between himself and the original debtor he becomes the primary debtor, and the original debtor becomes his surety." In a South Dakota case23 there had been several extensions of the debt without the knowledge or consent of the grantors and mortgagors, and the question was, could they be held for a deficiency judgment. The court said: "The rule predicated upon the doctrine of suretyship and almost uniformly invoked by courts of equity, seems to be that mortgagors are released from liability for a deficiency by such agreements, between mortgagees and those assuming and agreeing to pay the mortgage indebtedness;" citing a number of cases, declaring the familiar principle that extensions of payment by agreement between a principal debtor and the creditor, without the consent of the surety, discharges the latter. The court applied the rule and held that no deficiency judgment could be taken against the mortgagor, but only against his grantee. Some authorities hold, however, that the mortgagee may treat both the grantor and his grantee who has assumed the debt as principals.25 Kearney, Neb. WILLIS L. HAND. 22 15 Am. & Eng. Encyc. of Law, 341, 342; Gilbert v. Sanderson (Iowa), 9 N. W. Rep. 293; Durham v. Bishop, 47 Ind. 211. 23 Dillaway v. Peterson, 76 N. W. Rep. 926. 24 Mills v. Watson, 1 Sweeney (N. Y.), 374; Harris v. Jex, 66 Barb. 232; Calvo v. Davis, 73 N. Y. 211; Latimer v. Latimer (S. Car.), 16 S. E. Rep. 995; Merriman v. Miles (Neb.), 74 N. W. Rep. 860; Moses v. Clerk of Court, 12 Iowa, 139; Wood v. Smith, 51 Iowa, 156. 25 15 Am. & Eng. Encyc. of Law, 839 and note. INSURANCE-FOREIGN CORPORATIONS-CONDITIONS-DOING BUSINESS. SWING v. MUNSON. Supreme Court of Pennsylvania, May 23, 1899. 1. A contract of insurance on property in Pennsyl vania, with a foreign insurance company, irrespective of where made, is an attempt to do business in Pennsylvania, so as to be forbidden by the statutes, unless certain conditions are complied with. 2. A contract of insurance with a foreign corporation, though valid in the foreign State where made, cannot be enforced in Pennsylvania, where the in sured property is located, in an action for assessments on premium notes given by the insured, where the company has never complied with any of the conditions prescribed by the Pennsylvania statutes as essential to the making of a lawful contract of insurance; and it is immaterial that the insured has received the benefits of the contract, and that it would be inequitable to permit him to escape payment of his share of the losses. DEAN, J.: The appellant fire insurance company was a mutual company, organized under the laws of the State of Ohio. The defendant, Edgar Munson, a member of the company, is a resident of Williamsport, and a citizen of Pennsylvania. Immediately after the articles of incorporation were filed, on 27 May, 1887, in the office of the secretary of the state of Ohio, the company commenced to issue policies of insurance against fire, not only in Ohio, but in other States. Before the final certificate, dated 1st October, 1888, authorizing it to do business, was issued, Munson made application for insurance upon property in Pennsylvania, and, in response, policies were issued to him on deposit of the proper premium notes. The application and notes were executed at Williamsport, and transmitted by mail to the office of the company at Cincinnati, from whence was mailed to him the policy. Ostensibly, there was no agent of the company in this State, but, before Munson made out and transmitted his application-before he even knew of the existence of the company-one Hotchkin, a resident of Elmira, called upon him in Williamsport, and suggested that he take out policies in the company. It was denied that Hotchkin was an agent for the company. He was called an "inspector," but the testimony of Munson, and the correspondence between him and Williams, the secretary, establishes the fact, beyond dispute, that he acted for the company in procuring the insurance of Munson's property in Pennsylvania, although the contract was consummated by direct correspondence between Munson at Williamsport and the officers of the company in Cincinnati. On the 18th of December, 1890, by a judgment of the Supreme Court of Ohio, the corporation was dissolved, and James B. Swing, this appellant, appointed trustee for creditors and members to wind up its affairs. In consequence, there came into his hands nine notes of Munson. Three of them were deposit or stock notes, deposited before the certificate of organization was issued, and three of them ordinary premium notes, delivered after the complete organization of the company. All of them, under the statute of Ohio, were subject to assessment for debts of the company. An assessment was regularly made by the trustee. Munson refused to pay, and this suit was brought. At the trial, this agreement was filed by counsel: "It is hereby agreed, by and between the plaintiff and defendant in the above entitled case, that the following facts are admitted, with the force, effect and validity as if the same had been established upon the trial of the cause by competent evidence, viz: That the Union Mutual Fire |