Imágenes de páginas

confederated tribes settled upon the Umatilla reservation. Ordinarily, the husband is the head of the family, and the allotment is to him; none is to the wife, though the children are entitled to their allotments. So that at the death of the husband the wife is left without the benefit of any allotment, unless she is to have her dower, which will secure to her the measurable possession and enjoyment of the permanent home. Otherwise, she is left homeless and remediless, dependent wholly upon the charity of relatives and friends, with the government discharged of its guardianship. True, it may and does happen that Indian women marry white men, or Indians not of the confederated tribes, and the allotment is then to the wife as the head of the family. Hy-yu-tse-milkin v. Smith, 194 U. S. 401, 24 Sup. Ct. 676, 48 L. Ed. 1039. In such cases, under the rule here adopted, the husband becomes entitled to the curtesy. But these are exceptions, for the general rule is that intermarriage is with members of the confederated tribes, and it was the latter condition that was in view in casting the treaty and in the adoption of the legislation relative to the allotment of these Indian lands upon the Umatilla reservation to the members of the confederated tribes in severalty.

Since, therefore, the motion to strike out includes relevant and material matter with other that is impertinent, it must be overruled, and such will be the order of the court.

(Circuit Court, D. Oregon. May 6, 1907.)

No. 3,057.

The widow of an Indian to whom an allotment of lands in severalty had been made from the Grande Ronde Indian reservation, as authorized by the treaty of January 22, 1855, and Act Cong. 1887, C. 119, 24 Stat. 388, is entitled to dower in such lands. On Demurrer to Complaint. The complainant, who is an Indian woman, brings this suit to determine ber right to dower in certain lands situate upon the Grand Ronde Indian reservation, in the state and district of Oregon, formerly allotted to Henry Winshow, a full-blood Indian. From the allegations of the bill of complaint, it fears that the complainant intermarried with Henry Winslow in the year 1881. Subsequently, under and by virtue of the provisions of the act of Conpress entitled “An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the territories over the Indians, and for other purpuses." approved February 8, 1887 (24 Stat. 388, c. 119), there were allotted to Winslow the lands alluded to. Two daughters were born to Henry Winslow and the complainant, the issue of their said marriage, who are now living. and known as Tillie Quenel, née Winslow, and Rosa Winslow. Some time during the year 1890, Winslow, without being separated or divorced from the complainant, married the defendant Annie Petite, and the issue of this marriage is one son, namely, Augustus Winslow. Winslow died in the year 1896, leaving the defendant Annie Petite and their son Augustus Winslow in posNession of the allotment. Annie Petite acquired her present name, subse. greatly to the decease of Winslow, by intermarriage with one Petite, with ahom she is now living. The complainant claims a right of dower in the Bald premises, as the lawful widow of Henry Winslow, and the right to pos

icagoss'n, 175°ill Queen Ins. In

“This means that, in order that they become applicable to the interest of the mortgagee, the manner thereof must be indicated by an indorsement or some writing attached to the policy. Nothing of the kind was indorsed on or appended thereto, and for tbis reason the conditions do not apply."

Other cases to the same purpose are Senor & Muntz v. Fire Insurance Co., 181 Mo. 104, 79 S. W. 687; East v. New Orleans Insurance Association, 76 Miss. 697, 23 South. 358; Queen Ins. Co. v. Dearborn Sav., Loan & Building Ass'n, 175 Ill. 115, 51 N. E. 717 ; Northern Assurance Co. v. Chicago Mut. B. & L. Ass'n, 98 Ill. App. 152; Boyd v. Thuringia Ins. Co., 65 Pac. 785, 25 Wash. 447, 55 L. R. A. 165. Opposed to this view is a case in the United States Court of Appeals for the Eighth Circuit, before Caldwell, Sanborn, and Thayer, Circuit Judges. The opinion is by Mr. Justice Sanborn. After stating the contention of counsel for the defendant in error, which is the same as that made by counsel for plaintiff here, he says:

"But the clause which these parties selected and attached to the policy had a known, definite, and adjudicated meaning. It had a settled legal effect when they chose and appended it to the contract. The meaning and effect that the indemnity thereby secured to the mortgagees was subject to the risk of every act and neglect of the mortgagor which would avoid the original policy in his hands. No form of words could have been devised or adopted, relating to the insurance of these mortgagees, which would so clearly and conclusively have expressed the intention of the parties to this contract to subject the indemnity secured by the mortgagees to the risk of the acts and omissions of the mortgagor as the clause which they selected and attached to the policy, because a long line of adjudications, covering more than 40 years. had established the fact that this was its true meaning and effect."

After citing authorities, he continues: "The true construction of the clause 'Loss, if any, payable to mortgagee, as his interest may appear,' or of words of similar import, when attached to policies of fire insurance, is, and has been for more than 40 years, that the mortgagee is thereby made the simple appointee of the mortgagor. and that his indemnity is at the risk of the acts and omissions of the latter which would avoid, terminate, or affect the mortgagor's insurance under the original policy." Delaware Ins. Co. of Philadelphia v. Greer, 120 Fed. 916, 57 C. C. A. 188, 61 L. R. A. 137.

A later case by the same court, composed of Circuit Judges Sanborn, Van Devanter, and Hook, has this to say on the subject:

"But the question under consideration is not solved by merely ascertaining the meaning of the words 'as their interest may appear. They do not stand alone, and are not controlling. By the plain terms of the indorsement the consent to pay the loss to Dodge and Stevenson was made 'subject to all the conditions of the policy. This qualifying clause means that the consent was given upon the express condition that the conditions of the policy were not thereby abrogated or waived, but that they should have effect and be respected in like manner as if the indorsement had not been made. It means that a loss. to be payable to Dodge and Stevenson under the indorsement, must be one which, under the conditions of the policy, would be payable to the insured, and that whatever, under those conditions, would defeat the insured's right to payment in the absence of the indorsement, will equally defeat it in the presence of the indorsement." Atlas Reduction Co. v. New Zealand Ins. Co.. 138 Fed. 497, 504, 71 C. C. A. 21.

Franklin Ins. Co. v. Wolff, 54 N. E. 772, 23 Ind. App. 549, decided by the Court of Appeals of Indiana, is to the same purpose.

These latter authorities appear to me as announcing the better doctrine. The paragraph in question reads:

"If * * * an interest * * shall exist in favor of a mortgagee, ..the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto."

"Conditions hereinbefore contained” unquestionably refers to preceding conditions set out in the policy of insurance, or contained on the back thereof. Now, it is stipulated that they shall apply where there is an interest in favor of a mortgagee, which has been assented to or recognized by the company. If nothing further had been said, no question or confusion could arise. But it is significant, as a premise, that the agreement is that they shall apply. Now we inquire how, or in what manner, shall they apply, for in all events they are to have application, unless it be further stipulated, by reasonable intendment, that they shall not apply notwithstanding the agreement that they shall. They “shall apply in the manner expressed in such provisions and conditions * * * as shall be written upon, attached, or appended hereto"; that is, written upon, attached, or appended to the policy. Here is a plain recognition that they shall apply in some manner, and the manner pointed out is, as is expressed in the provisions and conditions, written upon, attached, etc. The slip appended in the present case contains an additional paragraph, as follows: "Permission granted to make additions, alterations and repairs”-and a warranty by the insured that, when the sawmill is idle, competent watchmen shall be employed, and that, if it remains idle for a period of more than 30 days without the written consent of the company, the policy shall become void. These are concluded by a stipulation that:

This slip is attached to and made part of policy No. 1328999 issued to the George W. Cone Lumber Company by the Law, Union & Crown Insurance Company."

The permission to make additions, etc., is an enlargement, in a manner, of the assured's rights, and the warranty may be considered a restriction thereof. These are provisions and conditions appended to the policy, but they do not appear to relate to the interest in favor of the bank any further than they modify the general provisions contained elsewhere in the policy; so that there are no provisions or conditions expressing the manner of application of the conditions contained in the policy, or on the back thereof, preceding the clause under discussion. Does this mean that the preceding conditions shall not apply at all, or, in other words, was it necessary, to give them application, that they should have been repeated or set out again upon the slip, or an appropriate affirmative provision written thereon, saying in effect that such preceding conditions shall apply when it had been as plainly stipulated as could be that they should apply? Any other answer but one, namely, that they were intended to apply in connection with such provisions and conditions as should be written upon the slip, and as modified thereby, would lead to a palpable absurdity, and hence it may be reasonably concluded that the conditions were intended to apply in all events, but as modified by whatever might be written upon the

[ocr errors]

slip attached to the policy. If the “hereinbefore" conditions were not
intended to have application, how easy it would have been to have said
so bluntly and pointedly--that such conditions shall not apply except
so far as they are reiterated upon the slip. The so-called union policies,
which have received a settled construction, do this. Syndicate Ins. Co.
v. Bohn et al., 65 Fed. 165, 12 C. C. A. 531, 27 L. R. A. 614; Hastings
et al. v. Westchester Fire Ins. Co., 73 N. Y. 141; Magoun v. Fireman's
Fund Ins. Co., 86 Minn. 486, 91 N. W. 5. The policy not having ex-
pressed it in that way, it is incumbent upon the court to seek for an-
other meaning. The slip is made part of the policy, and, being so made
part, all the conditions on the policy, contained both upon the back and
upon the face of it, together with those contained upon the slip, should
be construed together as one entire instrument, and all given effect,
if possible; and, when so construed, the plain intendment becomes
manifest that it was not designed that there should be one agreement
with the insured and another with the mortgagee, or other person hay-
ing an interest in the property. I am aware of the rule that, if con-
tracts of the kind manifested by policies of insurance contain ambigu-
ous or incongruous conditions, the construction most favorable to the
insured should be adopted. I am sure the paragraph in question is
ambiguous enough, and why it should be retained and acted upon by
men of clear business judgment is a mystery; but the rule does not go
to the extent of according to the court a free hand to write into the
contract a condition that was plainly never intended by the parties
to be there, and such, it seems to me, would be the result of counsel's
contention, were it adopted. As a further reason for the construction
I have given the policy, it is stipulated at the foot thereof that "this
policy is made and accepted subject to the following stipulations and
conditions, printed on the back hereof, together with such other pro-
visions, agreements or conditions as may be indorsed hereon or added
hereto”, so that the plain intendment from the whole contract is that
all these conditions, including those contained upon the slip, should
be construed together, and harmonized, if possible, and this I have
endeavored to do. But, if I am wrong about this, and if the cases
last cited are unsound upon principle, I am nevertheless firmly of the
opinion that the cases in the state courts cited and relied upon by coun-
sel for plaintiff are without application here, because in the present
matter there is no interest existing in the creditor—that is, the Van-
couver National Bank—with the consent of the insurance company.
In other words, the insurance company has not agreed or stipulated
that the bank has any interest, insurable or otherwise, in the property
covered by the policy. Loss, if any, is made payable flatly to the bank,
and not in so far as its interest may appear. So that in any event the
conditions and provisions of insurance relating to such interest cannot
apply here, because no such interest exists by agreement of the parties.
The bank is simply the appointee of the insured, to receive whatever
loss he may sustain by reason of fire from the insurance company,
under the conditions of the policy by which insurance was guarantied.

The next question involved is whether the contract of sale entered into between George W. Cone Lumber Company and the Oregon Fir Lumber Company rendered the policy void, so that recovery cannot be




had in this action. The contract was made and entered into between George W. Cone, of the first part, and the Oregon Fir Lumber Company, of the second part, and it stipulates that the first party “has and does hereby sell and deliver to said second party all the property bereinafter described upon the following conditions, to wit: The second party is to pay said first party the sum of fifty thousand dollars $50,000) for said property, twenty-five thousand dollars ($25,000) of which is to be paid for the real estate and twenty-five thousand dollars ($25,000) for all the other property. Said second party is to pay said first party the sum of ten thousand dollars ($10,000) upon the signing and delivery of this contract and the possession of said property, the receipt of which is hereby acknowledged by said first party. The balance is to be paid as hereinafter set forth. Said first party is to transter and convey said real estate by a good and sufficient warranty deed and all the other property by a good and sufficient bill of sale.”

Then, after describing the property in detail, the contract proceeds: "The first party is to furnish said second party a complete abstract of title to said property showing a perfect title in said first party, which title is to be passed upon and approved by the attorney of said second party. He is also to perfect and complete his title to said property and clear up all taxes and

cumbrances against the same except a certain mortgage to E. Quackenbush, to wbich there is a balance of some fifty-eight hundred dollars ($5,800), and a mortgage held by Georgiana Jackson for one thousand dollars ($1,000). Said irst party is to have not to exceed sixty days to complete said abstract and perfect said title and prepare and furnish said warranty deed and bill of sale. When said first party perfects his title and makes and delivers a good and sufficient warranty deed of said real estate and a bill of sale conveying and transferring all of said property to said second party free from all in(umbrances except the two mortgages above described, then said second party is to inmediately pay said first party the balance of said purchase price of forty thousand dollars ($40,000), after deducting the amount of the mortgages amite described therefrom. The said second party is to have full possession and control of said property from this date and is to conduct and carry on vid business."

It is contended on the one part that, by virtue of this contract or agreement, a change was effected in the interest and title of the subject of the insurance, and that thereafter the unconditional and sole ownership was not in the George W. Cone Lumber Company, and thus that there was a violation of the stipulations of the policy, rendering it void. This position is challenged as unsound upon the other part. It is a settled rule of law that, under a contract which portends a present sale of realty, an equitable conversion takes place, and that the property will henceforth be treated in legal consequence as if the legal title had actually passed; the most important incident attending such a contract, which may be mentioned, being that the property will descend to the heirs of the vendee, while the purchase money will go to the personal representatives of the vendor. This proceeds under the maxim that “equity regards that as done which ought to have been done." As is said by Mr. Pomeroy in his work on Equity Jurisprudence (section 368):

"The vendee is looked upon and treated as the owner of the land. An equi. table estate has vested in him commensurate with that provided for by the contract, whether in fee, for life, or for years. Although the vendor remains owner of the legal estate, he holds it as a trustee for the vendee to whom all

« AnteriorContinuar »