was contemplated and an undue advantage taken title, and without notice of the claim that the without ignoring the real intent and purpose of plaintiff now sets up, that the assignment was imthe parties. The plaintiff had already divested properly procured. During the whole of this herself as effectually as she could of all interest in time she knew that if the policy was still in force the policy and transferred it to the bank to aid it was by reason of the payments made by the her husband in his business affairs, and this ar- bank, and for six years before her husband's death rangement did nothing more than carry out in she knew exactly what had been done in relation another form the agreement that the bank was to the policy and why it had been done, and she to have the policy as security, to which she had remained silent. To permit her now to take the expressly assented by signing the transfer. It whole fund would be grossly inequitable. It is was apparently the means adopted after the in- not the case of payment by a volunteer having surance company had refused to recognize the no claim or color of interest, nor by one who transfer or it had been found invalid for purely used his money in an attempt to carry out a legal reasons, to give effect to the intention of scheme of fraud and should be denied re-payment the parties. The bank got only what the plaintiff of the money so expended. It is the case of payhad agreed that it should have, and the insurance ments made in good faith under belief of ownercompany acted with liberality in doing what it ship of the policy as collateral and for the joint was not required to do, and what it could have benefit of the holder and the beneficiary. The no other motive for doing than to protect the equity of the bank is certainly as clear as was that interests of the insured. In looking back at this of the holder of the policy in McCutcheon's Aptransaction after twenty-four years it must be re- peal, 99 Pa. 133, who was held to be entitled to membered that at the time Matlack was bank- a return of the premiums paid by him. In rupt. He was unable to pay his notes or to pay Downey v. Hoffer, 110 Pa. 109, and Ruth v. Katthe premium on his policy, and neither the bank terman, 112 Pa. 251, the holders of wagering polnor the insurance company had the slightest no-icies were allowed to retain the amounts paid by tice of the claim now set up, that the assignment them to keep the policies alive. was procured by means of threats and coercion. We are of opinion that the learned master was When, however, the plaintiff's policy was for- correct in his first finding upon this subject, and feited for non-payment of the quarterly payment that the decree recommended in his first report due April 18, there was to the credit of the policy should be entered against both defendants, and an amount of reversionary insurance the cash that the costs should be borne equally by the value of which was more than sufficient to pay plaintiff and the defendants. With this modificathe premium then due. This reversionary inter- tion the decree is affirmed, and now, March 22, est had at her request or that of her husband been 1897, it is ordered, adjudged and decreed that the applied by the company to the payment of prem- Seventh National Bank of Philadelphia do pay to iums for the two years immediately preceding the Theodosia Matlack the sum of $5036, with interforfeiture. Under the ruling of this Court in est from March 16, 1893, less the sum of $1574.58 Girard Life Ins. Co. v. Mutual Life Ins. Co., 97 with interest thereon averaged during the periods Pa. 15, the insurance company could not under that this amount was paid by the said Seventh the circumstances forfeit the policy, and the for- National Bank as premiums; and that the Mufeiture cannot now be sustained. The assign- tual Life Insurance Company of New York pay ment, whether valid or not, was not used to di- to the said Theodosia Matlack, a like sum, this vest her interest, and the forfeiture was ineffect- decree to be marked satisfied upon the receipt ual to do so. The second policy bore the same by the plaintiff from either of the parties defendnumber and was for the same amount and at the ant of the sum herein named, the costs to be paid same rate of premium as the first, and it was in one-half by the plaintiff, and one-half by the depart purchased by the use of the reversionary in- fendants. surance that stood to the credit of the first policy. We agree with the learned master that this policy Eo die. MITCHELL, J., dissenting. The plainwas a substitute for the first policy, and that hav- tiff was not a competent witness against the bank. ing been received by the bank with knowledge of The latter represented the title of the husband that fact it was impressed with a trust in favor of who was dead and whose interest had passed to the plaintiff. the bank. It was moreover a creditor of the hus Is the bank entitled to credit for the prem- band and held the policy only to secure its debt, iums paid? For twenty-four years it paid the and to the extent necessary for that purpose. If premiums and preserved the policy. These pre- any balance remained (as this Court holds that miums were paid in good faith, in reliance on its there did) it prima facie belonged to the hus band's estate and his creditors. By her own evi- knowledge or notice of the first policy's having dence the wife is now allowed to take it away been improperly forfeited or of anything irrefrom them. If the policy had been on the en- gular in the issue of the second. I am unable dowment plan and had become due and payable to see any ground in law or equity on which the to the husband in his lifetime it cannot be pre-bank can be held liable except for a possible tended that the wife would have been a compe- residue after payment of its debt in full with intent witness against him to draw the money on terest, and no such residue is even claimed to exthe ground that the policy was a substitute for ist in the case. one wrongfully obtained from her. The bank is his assignee for value and represents his interest, and as against it she is not a competent witness under the plain letter of the statute. Eo die. WILLIAMS, J. I agree with my brother MITCHELL in the views expressed by him, and dissent from the judgment rendered for both the But I would go farther and not only reverse reasons he has given. this decree but dismiss the bill, first for laches, and secondly as to the bank, on the merits. The laches, involving a delay with full knowledge of H. B. Supreme Court. February 8, 1897. Stover v. Stover. Tenants in common-Deeds, conclusiveness of Lien of individual creditor-Priority of, over firm creditor. When two or more persons, who are partners, take title to land as tenants in common, the presumption arising from the deed is that they hold the title as tenants in While the deed is not conclucommon in equal shares. sive as between themselves, yet as to purchasers and creditors they hold in accordance with the recorded title. In a distribution of the proceeds of a sale of land so held, the individual creditor of a co-tenant will have priinsur- ority over the firm, claiming by its title and in contradic the facts for twenty-four years and until all the Jan. '96, 192. parties charged as at fault in the original transaction were dead, is too clear to need enlargement upon. As to the merits it is now practically conceded that on the ground on which the decree was rested by the master and the Court below it cannot be sustained and the plaintiff has no claim to any part of the money from either defendant. But this Court finds that as there were accumulated dividends on the first policy, the cash value of which was sufficient to pay the premium due April 18, 1869, the forfeiture of the policy by the insurance company was unauthorized. Accepting this concession as to the ance company, on the authority of the very tion of the deed. unsatisfactory case of Girard Co. v. Mutual Co., 97 Pa. 15, there still remains the entire absence of knowledge on the part of the bank of any such reserved dividends, or the other circumstances of the cancellation or forfeiture of the first policy. Of such knowledge there is not a scintilla of evidence. The only facts that the master finds, with any relevancy to this point, are the cashier's letters of April 14 and April 17, 1869, and the endorsement "premiums on former policy, same number, paid in full to April 18, 1869." But the most strained construction cannot make any more March 22, 1897. WILLIAMS, J. In April, 1864, out of these than a knowledge on the part of the the plaintiff and defendant entered into a verbal bank which is admitted that there was a policy contract of co-partnership. This partnership was in favor of Mrs. Matlack, which she had assign- dissolved in April, 1879. During its continuance, ed to the bank by a transfer which the insurance the partners purchased several parcels of real escompany for technical reasons refused to approve, tate and took title thereto as tenants in common. and a subsequent accomplishment of the same re- These deeds were duly recorded soon after the sult in due form, acceptable to that company. lands were purchased. In 1888, the plaintiff filed The master finds expressly that the bank had no a bill praying for an account of the partnership knowledge of any circumstances of coercion or transactions and a partition of the land so held fraud by her husband against Mrs. Matlack; the by the partners as tenants in common. The defirst transfer was not used solely because not sat- fendant did not deny any of the allegations of the isfactory to the insurance company; and when bill except that which charged that he was indebtthat objection was overcome and the second pol-ed to the firm. The account was taken and a icy was issued, the bank took it without either balance of over four thousand dollars was found Appeal of Jacob Stover, plaintiff, from the decree of the Common Pleas of Bucks County, in a proceeding in equity against Isaac S. Stover. In this case a bill was filed praying a partition of certain land. The facts are stated in the opinion of the Supreme Court, infra. E. O. Michener, (Hugh C. Stover with him), for appellant. Henry Lear, (E. Wesley Keeler with him), for appellee. due from the defendant, and for want of any evi- nership funds and for partnership purposes the dence showing how the real estate could be di- general rule is that it is thereby made partnervided, a sale of it was recommended by the mas- ship assets: Meason v. Kaine, 63 Pa. 335; Warter, and made under the direction of the Court. riner v. Mitchell, 128 Pa. 153; Collner v. Greig, The proceeds of this sale were referred to an 137 Pa. 606; Hayes et al. v. Treat et al., trustees, auditor for distribution. The rival claimants be- heard in October last. But it is equally well fore the Court below and in this Court are the settled that as to purchasers and creditors the plaintiff whose claim rests on the decree showing deed will control: Ebbert's Appeal, supra; Apthe defendant to be indebted to the firm, and the peal of the Second National Bank of Titusville, land to be as between the parties partnership as- 83 Pa. 203; Geddes' Appeal, 84 Pa. 482; for the sets, and a judgment creditor of the defendant parties will be presumed to have put their title whose judgment was originally entered on April on record in accordance with the fact, and those 7, 1885, but was not revived until April 10, 1891. who deal with them have a right to act upon this The position of the plaintiff is that if it be con- presumption. When it comes to a question of disceded that the creditor had priority over him by tribution of the proceeds of a sale of land so held, virtue of his judgment entered in 1885, yet this the individual creditor of a co-tenant will have priority was lost by the failure to revive within priority over the firm, claiming by virtue of its five years; and his claim under the decree of Feb- title and in contradiction of the deed. The plainruary, 1892, took precedence because the pend- tiff in this case is responsible for the manner in ency of the cause in equity resulting in that decree which the deed was taken and recorded. He was notice of the plaintiff's demands as a lis pen- gave his brother credit thereby as half owner of dens. The judgment creditor replied that this these lands as a tenant in common, and as to one pendency of the lis was not notice because it was who acted upon his assurance, and extended not indexed as required by the Act of June 15, credit to him, it would be inequitable now to 1871, P. L. 387; and because his status depended permit the plaintiff to deny his brother's title. It not upon the lien of his judgment but upon his is not as between him and the creditor a quesposition as a creditor who became such after the tion of lien but a question of good conscience. recording of the several deeds in which Isaac S. If a loss must be suffered by one of them, upon Stover appeared as a tenant in common with which of them ought it to fall? Clearly upon that Jacob Stover, the plaintiff. The learned auditor one whose conduct has made the loss possible. and the Court below appear to have sustained After having induced the defendant to trust the contention of the creditor on both grounds. his brother by representing him to be a half We are not ready at present to adopt the view owner in these lands, he ought to be held estopof the learned Court as to the effect of the Act ped from now denying his brother's title, or asof 1871. It is not necessary to the decision of serting it to be less than, or different from, what this case. The phraseology of the Act is some- the deed represented it as being. what peculiar and we prefer to consider this question when it becomes necessary to do so, and not until then. This ground of decision fully justifies the decree made by the Court below and we prefer to place our affirmance of that decree upon this distinct ground. This case was well decided upon the other ground. It is settled that when two or more per- The assignments of error are overruled and the sons who are partners take title to land as ten- decree affirmed. Superior Court. Superior Court. W. C. S. November 18, 1896. ants in common, the presumption arising from the deed is that they hold the title as tenants in common in equal shares. As between themselves, the deed is not conclusive but they hold in accordance with the facts. As to purchasers and creditors, they hold in accordance with the re- Nov. '96, 75. corded title: Ebbert's Appeal, 70 Pa. 79. Taking Showalter, and recording a deed as tenants in common gives character to the title of the several holders upon which the public may safely rely. They are bound to take notice of what appears upon the records Fire insurance-Destruction of building by inand they have a right to act upon the faith of what they find there. Between the partners themselves While a contract of insurance is a contract of indemthe records cannot mislead, nor can they change nity against loss by fire, and a direct burning of the buildthe fact. If real estate is purchased with part- ing by a willful act of the insured is not one of the risks Committee of Eaby v. Mutual Fire Insurance Company of Chester County. sured-Insanity as a defence. "Counsel for plaintiff ask me to say: within the contemplation of the parties to the contract, it not be safe to say that he had burned this barn is well settled that mere carelessness and negligence of during a lucid interval, on the testimony of two the insured, or his tenants or servants, not amounting to fraud, though the direct cause of the fire, are covered by witnesses who had seen him the day before. When the policy unless specially excepted. a man is a lunatic, his paroxysms come on sudWhen an insane person burns his own building, he denly; there is no telling when they will come certainly does not commit any legal wrong for which he on, or how long they will last. He may have been is punishable criminally or any for which he is responsi-sane the day before, and he might have been inble civilly unless it be a breach of duty arising out of consane on the day of the fire. If the testimony had tract, and if a person when insane sets fire to his property, the loss ensuing is within the terms of a policy of come down to a closer period there might have fire insurance unless expressly excepted. been something for the consideration of the jury. "We say to you as a legal proposition, that in Appeal of the Mutual Fire Insurance Company our opinion if this man was insane at the time he of Chester County, defendant, from the judgment set this barn on fire, then it did not relieve this of the Common Pleas of Chester County, in an company from its contract; from its liability to action upon an insurance policy by Samuel W. him or his estate. Thus you see there is very Showalter, committee of the person and estate little left for your consideration, and [for the purof Edward S. Eaby, a lunatic. poses of this trial we will say to you that in our The facts appearing on the trial are stated in judgment your verdict should be for the plaintiff, the charge of the Court, WADDELL, P. J., as fol- for the amount due under the policy of insurlows: ance.] (Third assignment of error.) If we are "There is very little for you to do, save and wrong in this conclusion we will have an opporexcept to render the verdict which it seems to tunity, probably, hereafter, when we have more me you will be called upon to give in this case. time, and better opportunity to consider the legal The plaintiff here is the committee of Mr. Eaby, question involved; an opportunity to consider all who had his property insured in the Chester these questions involved, and if we have comCounty Mutual Insurance Company. It is al-mitted an error we will correct it by granting anleged, and established by undoubted proof that other trial. cannot be gainsaid, that he did set fire to his barn| and burn it. But it is established by just as posi- "1. Even if the jury believe that Edward S. tive proof that at the time of that burning he was Eaby burned the barn in question, if they also a lunatic. This Court has passed upon that ques- believe that he was a lunatic at the time of the tion in a former proceeding. Proceedings were burning, the verdict must be for the plaintiff for instituted by his friends, after this occurrence, to the amount of the insurance. Answer.-That ascertain his mental condition, and upon an in-point I affirm. (First assignment of error.) quisition held, and a decree entered by this "Counsel for defendant ask me to say: Court, he was found to be insane at the time of "2. That if the jury believe that Edward S. this burning, and for eighteen months before it, Eaby set fire to the buildings covered by the polwhich would carry us back until the middle of icy of insurance on which this suit was brought, 1893. But that inquisition found at the same time by which they were destroyed, there can be no rethat he had lucid intervals; that is, there were covery by the plaintiff in this case, even if the said periods of time when he was not insane; he was not constantly insane; but he was an insane man who had lucid intervals. And you will see from the testimony which has been introduced on the trial that such would seem to be the indications. Now he may have burned his barn during one of these lucid intervals, and if so, then his insanity would not protect him. But it is for the defence to show you that it was burned during one of these lucid intervals. Now there is, in the estimation of the Court, not sufficient evidence to establish that fact. The only evidence that has been introduced goes to show that on the day before the fire he had a conversation with two parties, and at that time, on that day, twenty-four hours probably before the fire, they saw nothing icy. wrong with him. But in our opinion it would| Edward S. Eaby were insane at the time of causing the fire. Answer. That point I disaffirm." (Second assignment of error.) Verdict and judgment for plaintiff. The defendant took this appeal and filed the assignments of error above indicated. Arthur T. Parke, (Thomas W. Pierce with him), for appellant. It is a maxim of our insurance law, and of the insurance law of all commercial nations, that the insured cannot seek indemnity for a loss produced by their own wrongful act. Thompson v. Hopper, 6 Ellis & Blackburn, 191. Loss by misconduct is not covered by the pol May on Insurance, section 407. Conn. Mut. Life Ins. Co v. Groom, 86 Pa. 92. This is true (1) on the principle that no one can lay the foundation of a claim for insurance on his own wrong, as well as (2) on the theory that the burning of the subject of insurance by the assured, was not within the contemplation of the parties to the insurance contract, and, thereBiddle on Insurance, secs. 830 and 833. fore, not a case of loss by fire covered by the Another analogy to the case of the destruction policy. of the property by the insured while insane, is The law will read into every contract of fire the case of its destruction by fire caused by the insurance, an undertaking that the assured will negligence of the insured. In that case it has observe the ordinary legal duty of good faith to- been uniformly held the company is liable in the wards the insurer, and his neglect of that duty absence of fraud. A fire policy is a protection Mut. Prot Soc. v. Douglas, 58 Pa. 419. would be a tort founded upon contract. The against fire caused by the assured's own neglilegal duty which the insurance contract imposed gence, unless the negligence amounts to fraud. upon the assured in this case, was that he should not himself destroy by fire the property insured; for such destruction would be a wrong commited by himself upon the insurer. I Addison on Torts, sec. 27. I Hilliard on Torts, p. 146. The plaintiff's insanity in face of his own wrong, cannot avail him in this action. Insane persons have always been held liable for their. wrongs to others. Beals v. See, 10 Pa. 61. Lancaster Co. National Bank v. Moore, 78 Pa. 413. Haycraft Creasy, 2 East, 92. Krom v. Schoonmaker, 3 Barbour, 650. St. John v. Am. Mut. Life Ins. Co., 13 N. Y. 31. The insured, although insane, is not protected against his failure to pay the premium due. Wheeler v. Conn. Life Ins. Co., 82 N. Y. 543. J. Carroll Hayes, (William M. Hayes with him), for appellee. The wording and terms of the contract are those of the insurance company, and a construction must be put upon them in favor of the insured, rather than the insurer. Conn. Mut. Life Ins. Co. v. Groom, 86 Pa. 96. 11 Am. & Eng. Enc. of Law, 348. 7 Id. 1040. Ins. Co. v. Kepler, 106 Id. 34. cause When the proximate cause of the loss was one of the perils insured against, although the remote was the negligence of the insured, his agents or servants, the underwriters are liable. Phoenix Fire Ins. Co. v. Cochran, 51 Pa. 149. Lebanon Ins. Co. v. Kepler, 106 Id. 34. The object of the contract of insurance, as the Courts hold, being indemnity against loss by fire, in case of possible doubt they always incline in favor of the insured. As the object of a contract of insurance is indemnity against loss by fire, if the provisions of the contract are susceptible of two or more inwill make the contract effective for the protecterpretations, that one should be adopted that tion of the insured. Machine Co. v. Ins. Co., 173 Pa. 53 (1896). with the necessity for furnishing proofs of loss. February 16, 1897. RICE, P. J. The question Karow v. Continental Ins. Co., 57 Wis. 56. of law raised in this and the next succeeding In complete analogy to the case of destruction case do not appear to have been decided by the of the property insured caused by the insured Supreme Court of our State, at least not in the while insane, is the case of suicide while insane precise form in which they are now presented. of one who holds an insurance policy upon his The question in this case is, whether it is a delife. fence to an action on a fire insurance policy to The Supreme Court of Pennsylvania has gone allege and prove that the building was burned even to the extent of deciding that this will not by the insured while insane. The position of the avoid the life policy, although the policy express- defendant's counsel is well stated in their own ly stipulate against suicide. Suicide in such a language thus: "The law will read into every case they construe as meaning self-destruction contract of fire insurance, an undertaking that consciously and intentionally brought about. the assured will observe the ordinary legal duty |