it was the noise of the mill." On cross-examination she said the blow or "squeal" of the whistle, as she described it, was a moment or two before deceased was struck, and admits that she saw the train as it came around the curve of the hill, fully 135 yards above her; that she saw other persons on the track nearer the train than she or deceased were, who found out the train was coming, and got out of the way of it. When suggested to her that she might have told the deceased the train was coming, she said she had only time to holler "train" and fall out to one side, yet says that when she was up on the hillside, where she had to hold on to some weeds or grass to keep from being drawn under the train, she saw the man killed right opposite to her, and indicates just how he was carrying his umbrella in his hand, wrapped up, and just where the engine struck him on his shoulder and skull. This witness testifies with apparent sincerity as to the speed of the train, and the distance it was from deceased when the alarm whistle was sounded; still her story, accepted as true, discloses the fact that she, a woman nearly 69 years of age, had time to get off the track, and up on the embankment to a place of safety before the engine struck him, and in time to be able to state with particularity how he was carrying his umbrella, and where he was struck by the engine. It will thus be seen that, while others saw or heard the train coming, when nearer the sharp curve in the road than deceased, and Mrs. Irby made exclamations about the train coming within six or eight feet of him, deceased neither looked nor listened for the train nor paid any sort of attention to the exclamations or actions of Mrs. Irby, which he was bound to have heard and seen, had he not been so engrossed in thought upon other matters that he was oblivious of what was going on around him, and that, too, when he had needlessly placed himself in a position of danger by walking upon the railroad track when he could just as well have walked in the open space by it where he would have been safe. The track itself warned him of danger. He was conversant with the railroad track and its surroundings as far back as the point at which he came upon it, and must have observed the obstructions to the view of approaching trains from that direction. He heard the noise of the mills he was passing, and heard the roar of the waters over the falls in the river near by, which admonished him to look and listen more carefully for the trains constantly passing than would have been required under other conditions. Yet he pursues his journey upon the railroad track with his thoughts evidently fixed upon some other subject than that of his own safety, or the dangers of his surroundings. In Railroad Co. v. Wilson, supra, it was held that one crossing a railroad at a place where the public is licensed to cross. who, knowing that he is on one of the main tracks over which trains pass at all hours, fixes his attention upon a train on the other track, which he has changed his course to avoid, and takes no precautions in looking out for trains upon the track on which he is walking, is guilty of such negligence as defeats his recovery for injuries from being struck by such train. It was said by Lewis, P., in that case, that, as Wilson was licensed to cross the railroad track where he was injured, it was imposed upon the defendant company as a duty to exercise reasonable and ordinary care to avoid injuring pedestrians crossing at that point. But the plaintiff was, nevertheless, bound to take ordinary precautions for his own safety, and the necessity for his doing so was not relieved by negligence, if there was any, on the part of the company. It was his duty to listen and to keep a constant lookout for approaching trains, to make sure the track was safe; and, had he exercised the vigilance the rule in such a case requires, instead of fixing his attention on the west-bound train after he had changed his course to avoid it, he would not have been injured. It is unnecessary therefore, to decide whether or not the company was negligent, for, be that as it may, the negligence of the plaintiff defeats a recovery. The question whether or not the negligence of plaintiff's intestate contributed to the injury was, of course, to be submitted to the jury under proper instructions; but, if such negligence is disclosed by the plaintiff's evidence, or is clearly shown by all the circumstances of the case, a verdict for the plaintiff cannot be sustained. Kimball v. Friend's Adm'r, supra, and authorities cited. We are of opinion that the negligence of plaintiff's intestate contributing to his injury must not only be inferred from all the circumstances of the case, but such negligence is apparent from plaintiff's evidence. Therefore the judgment of the corporation court of the city of Danville must be reversed and annulled, the verdict of the jury set aside, and the cause remanded to that court for a new trial to be had in accordance with this opinion. COWAN V. NATIONAL MUT. BUILDING & FOREIGN BUILDING AND LOAN ASSOCIATION- A Virginia stockholder in a building and loan association, organized under the laws of New York, who has made a loan from it, is chargeable with premiums for the loan, which the statutes of New York expressly authorize and declare shall not be deemed a violation of any statute against usury. Appeal from circuit court, Washington county. Bill by Margaret A. Cowan against the National Mutual Building & Loan Association. From a decree in favor of defendant, plaintiff appeals. Affirmed. A. H. Blanchard and J. S. Ashworth, for appellant. Rhea & Peters, for appellee. HARRISON, J. On the 23d day of May, 1892, Margaret A. Cowan conveyed a certain house and lot to George J. Peet, trustee, to secure a bond executed by her to the National Mutual Building & Loan Association of New York. The bill in this case is filed by Margaret A. Cowan, and her prayer is that an injunction be granted to restrain the trustee and the association from selling the house and lot, and from otherwise attempting to collect the amount due on the bond secured by the deed of trust, and that the said bond and deed of trust be declared void, and the cloud thereof removed from her title. The complainant then asks, in case she is not entitled to the relief already prayed for, that the transaction may be declared usurious and void, except as to the amount of principal due, after allowing credit for all sums which have been paid thereon by her. As ground for the relief asked, the bill alleges that the complainant was induced to enter into the contract by the following representations made to her by the association, all of which she declares were untrue: First, that the association was duly incorporated under the laws of New York. Second, that it was authorized, under the laws of New York, to take subscriptions to its stock, and grant or make loans of its funds to its members. Third, that complainant could lawfully become a stockholder in the association and become a borrower of its funds. Fourth, that it was authorized to do business in this state under and by virtue of having complied with the laws thereof. Fifth, that the rate of interest on her loan should not exceed 6 per centum per annum. Sixth, that it had an authorized capital of $50,000,000. As a further ground in support of her prayer that the contract should be canceled, complainant alleges that, being a married woman, "the association knew that she could neither take nor hold stock, unless the cost thereof should be defrayed from her personal earnings, or from the personal earnings of her children, voluntarily bestowed for the purpose, or from the property bequeathed or given to her by persons other than her husband, and that the association further knew that she had no other source of revenue than from her husband, and that, as she had no other source of means except what she gets from her husband, she is entitled to have said contract canceled." The complainant has not adduced a word of evidence in support of an allegation of the bill, except in respect to the rate of interest charged, but has contented herself with technical objections to the proof offered by the company in support of its legal organization and right to do the business of a building and loan association under the laws of the state of New York, and its lawful right to do business in the state of Virginia. These objections were all overruled by the lower court, and the cause referred to a commissioner, to ascertain the true amount due from complainant under her contract. Upon the filing of this report but two exceptions were taken thereto on behalf of complainant, viz.: First, because it is not supported by, but is contrary to, the evidence and the law. Second, because the commissioner las charged complainant with $145 of premium from July, 1894, to December 1, 1896, during which time she had no stock, and could receive no benefit from said premium payments. The first exception is addressed to no specified error in the report, and was too vague and indefinite to be considered. The second exception was also properly overruled. The appellee association was organized under and by virtue of the statute law of the state of New York, which expressly authorizes the association to make all the charges of interest, prèmiums, dues, etc., that it has made in this case, and expressly declares that the imposition of fines for nonpayment of dues or fees, or other violation of the articles of association, nor the making of the monthly payment required by the articles of association, or of any premium for loans made to members, shall not be deemed to be a violation of the provisions of any statute against usury. It does not appear that the association has ever declared appellant's stock forfeited, but she had voluntarily ceased to pay, and has sought to be relieved from her contract, and in ascertaining the amount due from her she has been credited by the withdrawal value of her stock. There is no error in the decree appealed from, and it is affirmed. RIELY, J., absent. (97 Va. 118) VIRGINIA M. R. CO. v. BARBOUR et al. (Supreme Court of Appeals of Virginia. June 15, 1899.) ADVERSE POSSESSION-EVIDENCE. In an action by a railroad for possession of land, it appeared that H. was in possession of an inclosed tract; that in 1878 it was sold by his assignee in bankruptcy, and a deed executed to the company; that during the same year its agent demanded possession of H.; that H. denied its title, and drove its agent from the prem ises with a gun; that H. and his family remained in possession, cultivating the land and claiming title, until his death, in 1887; that after his death his widow and son remained in possession, kept it inclosed and cultivated, and treated it in all respects as their own; that the son died in 1890, leaving his mother as sole heir; and that she built a substantial house on the premises. and lived there up to the time of the commencement of the action, in 1898, plaintiff during this time having maintained a fence between its adjoining land and the premises occupied by H. Held, that H. and those claiming under him had acquired title by adverse possession. Appeal from circuit court, Culpeper county. Action by the Virginia Midland Railroad Company against Barbour and Jeffries, as trustees. From a decree in favor of defendants, plaintiff appeals. Affirmed. Eppa Hunton, Jr., for appellant. Barbour & Rixey, for appellees. BUCHANAN, J. The only question involved in this appeal is whether the appellees and those under whom they claim had been in actual adversary possession of the land in controversy under a claim of title for more than 15 years prior to the institution of the suit. The facts in the case were agreed, and are as follows: "That the lot of land in the bill and proceedings mentioned was conveyed to John T. Hicks by E. B. Hill by deed dated March 9, 1868. That at this time Hicks was in possession of the lot, and continued to be in possession until his death, in 1887. That under proceedings in the bankrupt court, regularly and legally held, said land was regularly sold and purchased by the Washington City, Virginia Midland & Great Southern Railroad Company, under an order of said court regularly entered, and L. L. Lewis, assignee in bankruptcy, by deed dated June 13, 1878, undertook to convey said lot to the Washington City, Virginia Midland & Great Southern Railroad Company. That John T. Hicks at that time had possession of the said lot, and had it inclosed, and that, shortly after the date of the said deed, B. F. Nalle, the agent of the railroad company, came to Culpeper, and demanded possession of the said lot from the said Hicks. Hicks, with a shotgun in his hand, ordered Nalle and two hands he had with him off the place, and told them that the lot did not belong to the Virginia Midland Railroad Company, that they had no title to it, and that it belonged to him, and that he would shoot him unless he got off. That Nalle did leave the property in the possession of Hicks. That Hicks lived until the year 1887, when he died, leaving a widow, Kate Hicks, and an only son, C. W. Hicks. That after the death of John T. Hicks his widow and son remained in possession of the said property, kept it inclosed with a substantial fence, cultivated it and rented it out, and treated it in all respects as their own, and paid taxes thereon. That C. W. Hicks died about 1890, leaving his mother as his only heir, and that she, two years thereafter, built a substantial frame house on the said lot, and resides thereon at present with her husband. That the station and depot lot of the railroad company bounds the lot in controversy on one side, and the right of way of the company bounds it on another. That, from the time that John T. Hicks ordered the agent of the company off the premises down to the present time, the railroad company has made no further demand or attempt to get possession of the said lot, but has maintained a wire fence between its depot lot and the lot in question. That John T. Hicks during his life, and his son and wife after his death, and down to the present time, have been in actual possession of the property. It has been actually inclosed by them, and in their actual possession. They have cultivated it, pastured it, and rented it out throughout that period without interruption. They have paid the taxes thereon, and have openly and notoriously claimed it as their own, and denied the right of the railroad company thereto, notwithstanding their deed to the said lot." It is insisted that upon this state of facts the possession of the appellees and those under whom they claim has never been adverse to the title of the appellant. This contention is based upon two grounds: First, that Hicks, after the sale of the land in the proceedings in bankruptcy, was a mere tenant by suffrance, holding in subordination to the title of the appellant; and, second, that when he denied the title of the appellant, and claimed ownership in himself, he was a mere squatter, without a scintilla of title. It is true that, where the grantor of land remains in possession of it after conveyance, he holds in subordination to the title of the grantee; and in the earlier decisions this court inclined very strongly to the view that, where one was in possession of land in subordination to another's title, he could not assert an adverse title without first surrendering the possession of the premises. This question was carefully considered in the case of Creekmur v. Creekmur, 75 Va. 430, 436. In that case, Judge Staples, who delivered the opinion of the court, after commenting upon the earlier cases, says that: "Notwithstanding the doubt expressed in those cases, it is now settled by a great weight of authority that, although a party may enter into the possession in privity with the true owner, he may, without first surrendering it, dissever such relation, and claim by adverse title. * * The only distinction between this class of cases and those in which no privity existed is in the degree of proof required to establish the adverse character of the possession. The rule now is that, where the possession is originally taken or held under the true owner, a clear, positive, and continued disclaimer and disavowal of title, and the assertion of an adverse right, to be brought home to the knowledge of the party, are indispensable, before any foundation can be laid for the operation of the statute of limitations. The statute does not begin to operate until the possession, before in privity with the title of the true owner, becomes tortious and wrongful by the disloyal acts of the occupying tenant, which must be open, continued, and notorious, so as to preclude every doubt as to the character of the holding, or the fact of knowledge on the part of the owner." See, also, Whitlock v. Johnson, 87 Va. 323, 327, 12 S. E. 614; Reusens v. Lawson, 91 Va. 226, 21 S. E. 347; Chapman v. Chapman, 91 Va. 397, 21 S. E. 813; Hulvey v. Hulvey, 92 Va. 182, 23 S. E. 233,-where the rule as laid down in Creekmur v. Creekmur has been substantially reiterated and approved. The facts agreed clearly show that in the year 1878 John T. Hicks denied the title of the appellant to the lot in controversy, refused to surrender possession to its agent, drove him from the premises, and claimed the land as his own, and that of all these facts the appellant was then fully informed; that Hicks and those who claim under him had been in the actual and uninterrupted possession and occupation of the land, cultivating, building upon, paying taxes on, and claiming it as their own from that time to the institution of this suit. It may be true, as contended, that Hicks, when he denied the title of the appellant, and asserted ownership in himself, did not have a scintilla of title to the land. The question in cases of adverse possession is not whether the claim asserted is good or bad, but whether there has been a hostile claim of title, and continuous possession under it for the statutory period. Neither is it necessary that such hostile claim should be under color of title; that is, under a deed or other writing. But, where it is a mere claim (that is, a mere assertion of a right, without any paper title), the adverse holding is limited to the actual Inclosure of the claimant. Kincheloe V. Tracewells, 11 Grat. 605; Creekmur v. Creekmur, supra; Mines Co. v. Thompson's Heirs, 93 Va. 319, 320, 25 S. E. 232; Hutch. Land Titles,390. It clearly appears that he did claim the land as his own, and continued in possession and occupation of it under that claim from the year 1878 until his death, in the year 1887; that since his death his widow and son kept the lot inclosed, and continued in possession of it, paying taxes thereon, claiming and using it as their own, until the son's death, in the year 1890; that since that time his mother, as his sole heir, has built a substantial frame house upon it, in which she and her present husband reside; and that during the whole period from the year 1878 to the institution of this suit, in the year 1898, the said Hicks and those who claim under him have been in the actual possession and occupation of the lot, paying the taxes thereon, denying the title of the appellant, and using and claiming it as their own. further appears that from the year 1878, when Hicks ordered the agents of the appellant from the lot, denied its title, and asserted his ownership to it, the appellant made no further demand or attempt to obtain pos It session of the lot, but maintained a fence between its depot lot and the lot in question, and thus acquiesced in the adverse claim asserted by the appellees and those under whom they claim. The record in this case shows that the possession of the appellees and those under whom they claim was inconsistent with the title of the appellant; that it was accompanied by a claim of title exclusive of the rights of all others, was definite, notorious, and continued for more than the statutory period. It also shows that the land was actually inclosed during that period. Under the authorities, this was sufficient to bar the right of the appellant to the land in controversy, however good its title may have been originally. Thomas v. Jones, 28 Grat. 383, 387; Creekmur v. Creekmur, supra; Judge Baldwin in Taylor's Devisees v. Burnsides, 1 Grat., at side pages 190-192; Humbert v. Rector, etc., 24 Wend. 587, 604; Wood, St. Lim. § 259, at pages 530, 531; Hutch. Land Titles, §§ 390, 391; Newell, Ej. pp. 706, 707. We are of opinion, therefore, that there is no error in the decree appealed from, and that it must be affirmed. 1. In Act Feb. 27, 1894 (Acts 1893-94, p. 489), amended by Act Feb. 26, 1896 (Acts 1895-96, p. 453, c. 423), providing that in case of misjoinder of parties, the court "may" order the action to abate as to the party improperly joined, and proceed against the others, the word "may" means "shall," and hence misjoinder of defendants is not ground of demurrer to the declaration. 2. A notice by a mutual insurance company that it will declare a policy forfeited if a certain assessment, alleged by insured to be illegal, is not paid by a certain time, is not an absolute repudiation of the contract, authorizing insured to sue on his policy, especially as, when insured sued, the time had elapsed, and the policy had not been forfeited. 3. An attempt by the company to coerce out of the assessment class all the young and good risks, thus leaving the burdens of the assessment class to fall on those least able to bear them, is not such an absolute repudiation of the policy as will authorize an action by the insured. 4. Fraudulent misappropriation by the officers of the company of large sums belonging to it as trustee of its members, and making assessments in bad faith, and not to meet expenses, but to compel policy holders above 60 to abandon their policies, and forfeit all payments made, is not such an absolute repudiation of the policy as will justify an action by the insured. 5. An action will not lie for anticipatory breach of a policy before death of an insured under Code 1887, § 3251, as amended by Act March 3, 1896, to simplify pleadings in actions on insurance policies, and requiring the complaint to set forth the loss or death relied on as grounds of recovery. BUCHANAN, J. This is a writ of error to a judgment of the law and equity court of the city of Richmond, sustaining a demurrer to the plaintiff's declaration or complaint, and dismissing the case. One of the grounds of demurrer relied on is that the female plaintiff had no cause of action, her right in the policy sued on being merely a contingent, and not a vested, right, and there was, therefore, a misjoinder of parties. If it be true, as contended, that Mrs. Lee had no cause of action, and was improperly joined with her husband, it was no ground for sustaining the demurrer to the declaration and dismissing the case. Misjoinder of parties is no longer a fatal defect. By the express terms of the act of assembly approved February 27, 1894 (Acts 1893-94, p. 489), as amended and re-enacted by the act approved February 26, 1896 (Acts 1895-96, p. 453, c. 423), it is provided that "whenever it shall appear in any action at law or suit in equity, heretofore or hereafter Instituted, by the pleadings or otherwise, that there has been a misjoinder of parties, plaintiff or defendant, the court may order the action or suit, to abate as to any party improperly joined and to proceed by or against the others as if such misjoinder had not been made." The word "may" in a statute of this kind which is in furtherance of justice means the same as "shall." Potter's Dwar. St. p. 220. Another ground of demurrer is that the action was brought for an anticipatory breach or renunciation of the contract, and that the declaration does not aver, as is required in such cases, a distinct, unequivocal, and absolute refusal to perform the contract on the part of the defendant. This proceeding is based upon or grows out of an alleged violation of the provisions of a certificate of membership or policy of insurance issued to A. S. Lee, one of the plaintiffs, by the defendant, which is a mutual beneficial assessment company chartered under the laws of the state of New York. The certificate or policy provides, among other things, in consideration of certain things done and to be done by A. S. Lee, one of the plaintiffs, that within 90 days after the receipt of satisfactory evidence to the defendant association of the death of the said Lee during the continuance of the certificate of membership there shall be pay able to Mary E. Lee (his wife), if then living, or, if she is then dead, to the heirs or legal representatives of said member, the sum of $5,000 from the death fund of the association at the time of his death, or from any moneys that shall be realized to that fund from the next assessment made by the association upon its members. A. S. Lee is still living, so that by the terms of the certificate or policy no cause of action upon it has yet accrued. But the plaintiffs claim that, notwithstanding this fact, they can maintain this action, because the association has renounced and repudiated the contract, and given notice that it will no longer be bound by it. In England and in a number of the states of this country, including Virginia, it has been held that where there has been a total refusal on the part of one of the contracting parties to perform the contract on his part the other may elect to sue at once without waiting for the time of performance to arrive. James v. Kibler's Adm'r, 94 Va. 165, 26 S. E. 417; Hochster v. De La Tour, 2 Ellis & B. 678. But, in order to do this, there must be a distinct, unequivocal, and absolute refusal to perform the contract. Johnstone v. Milling, 16 Q. B. Div. 460, 467; Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850; Benj. Sales (2d Ed.) § 568; James v. Kibler's Adm'r, supra. The acts of the association relied on in the first count to show a repudiation or renunciation of the contract of membership or insurance are the following: That the association, on the 1st day of February, 1898, made a new assessment upon all of its members, and increased the bimonthly assessment upon the insured from $5 to $30 on each $1,000 of his policy, in plain violation of the provisions of the contract, and notified him that, unless that assessment was paid on or before the 3d day of March following, it would declare his policy and all payments made thereon forfeited, and his membership in the association ended, and that it persists in that statement. This action was not instituted until some time in the following April, after the time fixed for declaring the certificate or policy lapsed or forfeited for the nonpayment of that assessment. If it be true, as alleged, that the February assessment was an illegal one, and that the association had declared the contract forfeited for its nonpayment, the insured would have the right, as he claims, to elect to treat the contract at an end, and bring an action to recover the just value of the policy. But the averment that the association had given notice that it would declare the policy or certificate forfeited or lapsed if the February assessment was not paid was a conditional, and not an absolute, repudiation of the contract, and is plainly insufficient under the authorities, and especially as this action was not brought until after the time des |