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mortgage back, under the circumstances, con- | accepted, which are the evidence of the constituted such an alienation as to affect the in

surance.

Hitchcock v. North Western Ins. Co. 26 N. Y. 68; Sanders v. Hillsborough Ins. Co. 44 N. H. 238; Washington Ins. Co. v. Hayes, 17 Ohio St. 432; Stetson v. Mass. Mut. F. Ins. Co. 4 Mass. 336; Howard F. Ins. Co. v. Bruner, 23 Pa. 50; Tittemore v. Vermont Mut. F. Ins. Co. 20 Vt. 546; Ayers v. Hartford F. Ins. Co. 17 Iowa, 176; Kyte v. Commercial Union Assur. Co. 3 New Eng. Rep. 884, 144 Mass. 43.

After the indorsement is made then the doctrine of estoppel applies, and the defendant is precluded from averring want of consideration or insisting upon previous forfeiture.

Pratt v. New York Cent. Ins. Co. 55 N. Y. 505; Frost v. Saratoga Mut. Ins. Co. 5 Denio, 154, and cases cited; Wolfe v. Security F. Ins. Co. 39 N. Y. 52; Atlantic Ins. Co. v. Goodall, 35 N. H. 328; Green Bay & M. Canal Co. v. Hewitt, 62 Wis. 334; Hill v. Millville Mut. M. & F. Ins. Co. 39 N. J. Eq. 75; Bailey v. American Cent. Ins. Co. (Iowa) 13 Fed. Rep. 250.

Lyon, J., delivered the opinion of the court: The conveyance of the insured property by the plaintiffs to Lindner, without the consent of the defendant Company, would have invalidated the policy had the Company insisted upon a forfeiture. But the assignment thereof to Lindner with the consent of the Company, although after the conveyance was executed, was an effectual waiver of such forfeiture by the Company. The stipulation indorsed upon the policy, making any loss payable to plaintiffs as their interest might appear, constituted them the beneficiaries of the whole amount of insurance, for their interest under their mortgage greatly exceeded the insurance. If the contract expressed in the indorsement on the policy of April 27, 1886, is allowed to stand, the plaintiffs are entitled to all money the Company is liable to pay under the policy, for no part of the mortgage debt has been paid. But in such case all the conditions, stipulations and causes of forfeiture expressed in the policy remain intact. If any act or omission of plaintiffs would have defeated a recovery on the policy, had the same occurred before the conveyance to Lindner, the same act or omission of Lindner since the conveyance will also defeat it. But the contract which the plaintiffs seek to establish by a reformation of the policy, or rather of the indorsements of April 27, is a very different one. Such contract would practically give the plaintiffs absolute indemnity against loss of the insured property by fire. A violation of its terms and conditions by Lindner, without their consent, would not defeat the policy. He might convey the property away, or cover it with mortgages; he might obtain additional insurance upon it; he might use the dwelling-house for prohibited purposes, or fill it with probibited combustibles; he might, in short, disregard every requirement of the policy inserted for the reasonable protection of the insurer, and still the plaintiffs would recover on the reformed policy.

The question we are to determine is, Which of these two widely different contracts did the parties to this action make on April 27, 1886? The writings which were then executed and

tract until reformed, show the contract to have been that the Company would continue the insurance in favor of Lindner, and that, if the policy should remain valid, the plaintiffs should be entitled to the insurance money in case of loss until their mortgage debt should be paid. The incidents of such a contract have already been stated. In place of the contract thus expressed and accepted by them the plaintiffs seek to substitute another, far more favorable to themselves, by showing that they did not in fact make the contract with the agent expressed in the indorsements of April 27, but that they made the other and more favorable contract above mentioned. They do not deny that they knew the terms and contents of such indorsements, or that they accepted them as written, and acquiesced in them for many months, and until after the insured property was burned. But they claim that the agent of the Company led them to believe that the indorsements operated to give them an insurance of their mortgage interest, entirely independent of Lindner and entirely unaffected by his acts or omissions, and that they confided in his statements, while the agent was himself mistaken as to the legal effect of the indorsements, or fraudulently deceived them as to their effect. The circuit court found from the testimony, substantially, that the contract actually made was as the plaintiffs claim it to have been, and that they were misled by the agent, either innocently or fraudulently, into the belief that the same was expressed in the indorsements. Are these findings supported by the testimony?

The rule of evidence in such cases is stated by the Supreme Court of the United States as follows: "In each case the burden rests upon the moving party of overcoming the strong presumption arising from the terms of a writ ten instrument. If the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and convincing, beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. A judgment of the court, a deliberate deed or writing, are of too much solemnity to be brushed away by loose and inconclusive evidence." Howland v. Blake, 97 U. S. 624 [24 L. ed. 1027].

Har

The rule thus laid down has been affirmed and applied several times by this court. ter v. Christoph, 32 Wis. 245, and cases cited. Indeed, the rule seems to prevail in all or most of the courts in this country. See cases cited in brief of appellant.

Some of the courts say the alleged mistake must be proved beyond a reasonable doubt, or no reformation of the deed or writing will be decreed. It was held in Ledyard v. Hartford F. Ins. Co. 24 Wis. 496, and reaffirmed in Harter v. Christoph, supra, that a written instrument will not be reformed unless the correction asked for expresses the understanding of both parties thereto at the time it was executed. Furthermore, in Ledyard v. Hartford F. Ins. Co., and again in Kent v. Lasley, 24 Wis. 654, it was queried whether, as a general rule, a writing should be reformed on the unsupported testimony of the party asking its refor mation; and in Harter v. Christoph it is said: "It would be an extreme case which would

justify the court in reforming or defeating a | agree to refund the unearned premium after written instrument, for a mistake therein, up- the indemnity had ceased, when the Company on the uncorroborated testimony of a party to would have been under no legal obligation to it, although such testimony were uncontra- do so. dicted."

Having thus ascertained the rules of evidence which must govern the case, brief reference will be made to the testimony. The only witnesses to the transactions of April 27, who testified on the trial, were the three plaintiffs and the agent Hunkel. The plaintiffs severally testified, in a variety of forms, that they requested Hunkel to put the policy in a shape which would fully protect them, and he agreed to do so, and said to them, after the indorsements were made, "I have insured you, and not Mr. Lindner, and all you have to do in case of fire is to come to my office and let me know, and you get your money." This is the strongest testimony we find in the record of anything said by Hunkel which tends to support the plaintiffs' contention. The mortgage debt was to become due in six months, and the plaintiffs expected it would be then paid. They obtained an express promise from Hunkel that, when it was paid, the policy should be canceled, and the unearned premium returned to them. It also appeared that Lindner said he would have nothing to do with the policy; that it belonged to the plaintiffs, and that he intended to obtain other and cheaper insurance. We find no testimony that the plaintiffs expressly told Hunkel they desired an independent contract insuring their mortgage interest alone, which would eliminate from the policy all the numerous conditions and specifications of acts, omissions and causes, which would work a forfeiture of the contract, thus making it a contract for absolute indemnity. Neither do we find any sufficient testimony showing that Hunkel had any idea that they desired to make, or supposed they had made, such a contract. When it is remembered that the policy covered only a little more than one third of the mortgage debt, and hence that the entire legal title thereto was in plaintiffs (Hammel v. Queen Ins. Co. 50 Wis. 240), Lindner might well say that it belonged to plaintiffs, and he would have nothing to do with it. Although Hunkel said he had insured the plaintiffs, and not Lindner, it is unreasonable to believe he meant that he made a contract in behalf of his Company so radically different from that expressed in the writings a contract, too, which it was proved on the trial he had no authority to make. The whole conversation is entirely consistent with the theory that Hunkel only meant that Lindner could not get the insurance in case of loss, but the same would be paid to the plaintiffs. He testified that is what he said. He also denied that he made the contract the plaintiffs claim he did, and testified that nothing was said about issuing a policy direct to the plain tiffs to insure their mortgage interest alone. The agreement for the cancellation of the policy, and the return of the unearned premium when the mortgage should be paid, is against the contention of the plaintiffs. The payment of the mortgage would have canceled the policy if it only covered the mortgage interest, and there was no necessity for any agreement to cancel it. Moreover, Hunkel would hardly

It seems very clear to our minds that the judgment of the circuit court, reforming this written contract of insurance, violates every rule of evidence above stated. The proof is not clear and convincing, beyond reasonable controversy, that the plaintiffs asked the agent of the defendant Company to contract with them to insure their mortgage interest alone,that is, for absolute indemnity against loss by fire,-which would abrogate so many conditions of the policy inserted for the protection of the insurer. Although they may have been seeking to obtain such a contract, they said nothing to the agent which necessarily communicated that desire to him. All they said to him, and all he said in reply, is entirely consistent with the theory that the agent had no thought of so changing the contract as to insure their mortgage interest alone, or that they desired him to do so. Hence it is not sufficiently proved, within the above rule, that the reformed contract expresses the understanding of both parties. Moreover, the same was reformed on the uncorroborated testimony of the parties asking for such reformation, which testimony is disputed in most vital points by that of Hunkel.

In Gillett v. Liverpool & L. & G. Ins. Co. 73 Wis. 203, the plaintiff, a mortgagee of the insured property, claimed, as the plaintiffs do here, that he applied for insurance on his mortgage interest alone, but that by mistake the policy was issued to the mortgagor, loss payable to the mortgagee, as his interest might appear. He did not pray a reformation of the policy in terms, but the case is discussed as though he had done so. It appeared that he applied for an insurance on the mortgaged property to secure his mortgage interest therein, without any agreement or reservation as to its forms, or the stipulations it should contain. He accepted the policy as issued, and retained it several months without objection. The proof was held insufficient to authorize a reformation of the policy, and the plaintiff was held estopped by his laches to deny that the writing expressed the true contract. That is fully as strong a case for reformation as the present case. A valuable note to this case, prepared by J. R. Berryman, Esq. (the state librarian), will be found in the American Law Register for April, 1889 (2d Series, vol. 28, No. 4), in which many cases are collected, some of which bear upon the principles and rules above laid down.

For the reasons above stated, we are impelled to the conclusion that the plaintifis have failed to show themselves entitled to a reformation of the contract of insurance, and that the circuit court erred in granting them such relief. We have considered and determined the case on the hypothesis that the agent Hunkel had authority to bind the defendant Company by the contract which the plaintiffs claim he entered into with them. It should be observed that we do not decide this proposition. There are stipulations in the policy which may bring the case within the rule of Hankins v. Rockford

Ins. Co. 70 Wis. 1. But we leave that ques tion open.

Another very valuable note by Mr. Berryman to the case last cited will be found in 27 Am. Law Reg. (N. S.) 194, in which many

cases bearing on the powers of insurance agents, and the limitations thereto, are collated. The judgment of the Circuit Court must be reversed, and the cause will be remanded for further proceedings according to law.

MICHIGAN SUPREME COURT.

JOHN SPRY LUMBER CO., Appt.,

v.

SAULT SAVINGS BANK, LOAN &
TRUST CO. et al.

(.... Mich.......)

A statute which provides that the lien of a laborer or furnisher of materials of a building erected by a contractor shall not be defeated by any agreement between the owner and the contractor or sub-contractor, or by any payment made to either of them, or by failure to perform the contract, in case the laborer or furnisher complies with the provisions of the Act, is an unconstitutional attempt to subject property to sale for obligations to which the owner never became bound, and strikes at the foundation of all property in land.

(October 25, 1889.)

APPEAL by plaintiff from a judgment of the Circuit Court for Chippewa County, deny ing the existence of a mechanics' lien which it sought to enforce against the defendant corporation. Affirmed.

The facts sufficiently appear in the opinion. Messrs. Shepard & Lyon, with Mr. E. S. B. Sutton, for plaintiff, appellant:

Statutes giving liens to laborers and mechanics are to be liberally construed.

Flagstaff Silver Min. Co. v. Cullins, 104 U. S. 176 (26 L. ed. 704).

The provision of the Statute that if a husband purports to act for his wife in the erection of a building, or in making improvements upon property in which she has an interest, she shall be considered to have sanctioned the erection of that building by the mere fact that the improvements were done in an open and notorious manner, was a valid and proper one.

Heath v. Solles, 73 Wis. 217; North v. La Flesh, 73 Wis. 520.

The parties must be held to contract with reference to the law as it exists and incorporate it in and as a part of their contract.

gage or alienation. Without delivery, how can such an instrument, not bearing any seal or any appearances of an intention to authenticate it as an alienation, be held to exempt the transaction from the provisions of the constitutional prohibition upon the sale of homesteads on execution?

See Meyer v. Berlandi, 39 Minn. 438. The Constitution ($ 5, art. 16) prohibits the incumbrance of the wife's property for the husband's debt.

No presumption can arise, that because a wife knows of her husband's act she therefore consents to that act so as to bind herself and her separate estate.

Fecheimer v. Peirce 70 Mich.-14 West. Rep. 648; Willard v. Magoon, 30 Mich. 273; Newcomb v. Andrews, 41 Mich. 518; Morrison v. Berry, 42 Mich. 389.

Any statute or rule which should in any way deliver a sub-contractor or any under workman

or materialman from the obligation undertaken by his superior would at once violate the constitutional provisions against laws which impair the obligations of contracts A person making a subcontract is presumed to make it knowing the agreement of the principal contractor, and to make it in strict subordination thereto.

Overton, Mechanics' Liens, 578; Cooley, Const. Lim. 285; Meyer v. Berlandi, 39 Minn. 438; Shaver v. Murdock, 36 Cal. 293; Pike v. Irwin, 1 Sandf. 14; Stewart v. Wright, 52 Iowa, 335; Phill. Mechanics' Liens, p. 65; Donahy v. Clapp, 12 Cush. 440; Parker v. Bell, 7 Gray, 429.

The provision of section 2, which gives the owner the right to pay any lien claimant upon an ex parte affidavit all he asks in his itemized bill, without notice thereof to the contractor, and thereby absolutely to discharge himself from his obligation to the contractor, to the amount of such payment, and giving to the contractor, as his only remedy for the fraud or false statement of the person obtaining the money, the barren prospect of a prosecution against an irresponsible person for perjury, is an adjudication of a contract right without giving to the contractor his day in court, is a capricious determination of the legality of a debt, No alienation can be effected of a homestead and deprives the contractor of property rights ―a property right so sacredly regarded as to be without due process of law. It is clearly withthe subject of special constitutional provision-in the constitutional inhibition of such legislawithout at least a delivery of the instrument for the very purpose of that alienation, such delivery to be intended by the parties as an alienation.

Reilly v. Stephenson, 62 Mich. 509.
Messrs. Hayden & Young, with Mr. H.
M. Oren, for defendant, appellee, the Savings
Bank, Loan & Trust Co.:

Heffron v. Flanigan, 37 Mich. 274; Thatcher v. St. Andrew's Church, Id. 264; Eaton v. Trowbridge, 38 Mich. 454.

The memorandum required by this Statute need not contain a single word of devise, mort

tion.

Parsons v. Russell, 11 Mich. 113; Bidwell v. Whitaker, 1 Mich. 469; Rockwell v. Nearing, 35 N. Y. 306; Reeve v. Elmendorf, 38 N. J. L. 125. The law is a menace to land titles which ought to deprive it of favor.

Willard v. Magoon, 30 Mich. 273; Clark v. Raymond, 27 Mich. 456.

The radical provisions of this Statute, but for

which the Act would probably not have been passed, being unconstitutional, the entire Statute should be disregarded.

Cooley, Const. Lim.; Meyer v. Berlandi, supra; Western U. Teleg. Co. v. Texas, 13 Am. & Eng. Corp. Cas. 386; State v. Pugh, 1 West. Rep. 36, 43 Ohio St. 98.

Mr. John H. Goff for defendants Myers, appellees.

Campbell, J., delivered the opinion of the

court:

Plaintiff sued, counting expressly on the Lien Law (No. 270, Gen. Laws 1887), claiming a lien on the banking house of the principal defendant for lumber furnished the defendants Myers, and used in its construction. The Savings Bank, Loan & Trust Company made a written contract with the defendants Myers, June 27, 1887, to begin by July 1, 1887, and finish by November 1, for $27,000, the building in question, payable on monthly estimates, with the usual draw back of 20 per cent to be held till completion. The court below held the Lien Law of 1887 to be unconstitutional, and gave judgment on the personal debt against defendants Myers, who do not appeal. Plaintiff appeals on account of the denial of the lien. The Law of 1887 repeals all previous laws on the subject, and only saves pending proceedings. But it is assumed, and correctly, to apply to all material furnished after the law took effect, whether under old or new contracts. It changes the old law chiefly in regard to the cases under which liens may be created, and does so in such a way that it must stand or fall together. The machinery is merely secondary and incidental. The new law varies from the old law in these important particulars: First. It allows a homestead to become bound to the persons claiming a lien, where a building contract is executed with the original contractor, signed by husband and wife. Second. It binds a married woman's land, where the articles or labor are furnished to a contractor or sub-contractor of the husband with her knowledge or consent, express or implied, as if by her own express authority; and furnishing labor or materials "in an open and public manner" is made sufficient evidence of knowledge and consent. Third. The building contract made with any person, whether man or woman, has no effect on the lien, whether fully performed by the landowner or not; and the laborer or furnisher may enforce his lien for any material or labor furnished under any

contract, express or implied, written or unwritten, whether conforming to the original contract or not. In short, this law makes the mere fact that a building contract exists, or has existed, a sufficient reason for binding the land for any act or omission of the building contractor or his sub-contractor, whether within the range of the contract or not, or whether or not in harmony with its terms.

The law says, in so many words: "Such lien shall not be defeated by any contract, agreement or understanding between the owner, part owner, or lessee of the real estate upon which such improvements are made, or for which such materials are furnished, and the original, or any sub-contractor, by any payment made by such owner, part owner or lessees to such contractor or sub-contractor for the contract price of such labor or material, or any part thereof, in case the person performing such labor or furnishing such material shall comply with the provisions of this Act.'

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This Statute is made for the express, and, so far as differing from former laws, for the only, purpose of enabling strangers to the title to subject it to sale for obligations to which the owner never became bound, and in which he has no part whatever. It strikes at the foundations of all property in land. There is no constitutional way for devesting a man's title except by his own act or default. Here his own act is not required, and his freedom from default is no defense. He may pay in full, in advance or otherwise, for all he has contracted for. He may contract for a house built in a certain way, and of certain materials, and may have to pay for what he never bargained for, and what his building contractor had no right to put off upon him. The original contract plays no part in the matter, except as a fact which binds no one, and has no significance. Such a gross perversion of all the essential rights of property is so plain that no explanation can make it plainer; and, as this purpose forms the only apparent reason for it, the Statute, and all its parts, must fall together, leaving the law of the State where it was before the Law of 1887 was passed.

In Hanes v. Wadey, 73 Mich., 41 N. W. Rep. 222, the validity of the law was not discussed, as it has not been in any other case hitherto.

The judgment must be affirmed, with costs. Sherwood, Ch. J., and Morse and Long, JJ., concurred; Champlin, J., did not sit.

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Prior to 1857, one John Snyder died seised of the lot in question. During that year Washington R. Snyder, his son, acting for himself, and, as plaintiff contended, for the remaining heirs of John Snyder, entered into a parol contract with one John Anderson to sell said lot to him. The consideration for this sale was $300, of which $150 was paid. Anderson took possession of the lot, erected a dwelling-house thereon, and continued to live therein.

In 1858 the heirs of Snyder conveyed the same lot to J. Hoffman Hershey. Plaintiffs claimed that this conveyance was made to Hershey at the request of Anderson. The consideration of the deed was $150, being the amount remaining unpaid of the purchase money due by Anderson, and plaintiffs claimed that the transaction was simply an advance by Hershey of the unpaid purchase money, and that the conveyance of the land to him was as security therefor.

In 1875 a lease at will of the lot was executed by Hershey to Anderson at the rent of $2 per month, after which Anderson remained in possession, occasionally paying rent. Subsequently Anderson died and his heirs remained in possession of the lot.

In 1884 Hershey executed a deed of the lot to one Brinser and he brought an action of ejectment and recovered possession of the same. Thereafter the heirs of Anderson brought ejectment to recover back the lot.

When the case reached the supreme court it held that the contract had been sufficiently proved and so far performed as to take the case out of the Statute of Frauds, but ruled that the burden of proof was upon the plaintiff to prove the authority of Washington R. Snyder to represent the other heirs, and sent the case back for another trial.

At such trial the authority of said Snyder was shown, and also it was proven that Brinser had knowledge of the lease under which the Anderson heirs held possession.

The further facts appear in the opinion.
Mr. J. C. McAlarney for plaintiffs in er-

ror.

Mr. S. J. M. McCarrell for defendants in

error.

Clark, J., delivered the opinion of the

court:

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When this case was here before (10 Cent. Rep. 776) we said there was abundant proof of a contract for the sale of the lot in dispute by Washington R. Snyder to John Anderson in the year 1857. The receipt, dated October 22, 1857," we then said, "taken with the other evidence in the cause, was full and complete upon this point. The terms of the contract are, we think, sufficiently shown. The lot is described as 'No. 258 in the Borough of Middletown;' which may be regarded, perhaps, as a proper designation of the boundaries. The consideration was $300, a considerable part, if not all, of which, was shown to have been paid. Possession was taken immediately after and in pursuance of the purchase, and a dwelling-house was erected upon it. The possession was open and notorious, and was continuously maintained for many years, and until legal proceedings were instituted to test the title." The testimony at this trial, on that branch

of the case, is substantially the same as before; and we adhere to the opinion we expressed on that point at the former hearing.

The testimony at the former trial has been supplemented, however, with satisfactory proof that Washington R. Snyder, in this transac tion, acted not only for himself, but in the behalf of his sisters, who were the heirs of John Snyder, deceased; and that not only the purchase money paid by Anderson, but the money advanced by Hershey, was divided between the brother and sisters according to their respective interests. There was abundant evidence of the most satisfactory character to this effect, and the fact has been found by the jury. We are of opinion, also, that there was evidence from which the jury might fairly infer that the deed to Hershey was only a security for the money advanced by him to pay out the purchase money; and that the writing, denominated a "lease," which, it is alleged, was subsequently executed between Hershey and Anderson, was a contract on part of the defaulting vendee for the continuance of the possession on terms agreed upon,-the rent, as it was paid, being applicable to the principal and interest of the purchase money. In view of what was said in our former opinion, we think it is not necessary to enter into any further discussion on this branch of the case.

The only remaining question for our consideration is whether or not Jonas Brinser is to be regarded as an innocent purchaser, and entitled to protection as such. Anderson died in 1882, and the conveyance by Hershey to Brinser was in 1884. Anderson's heirs were in the actual possession of the premises in dispute at the time of the conveyance, and it is contended that their possession put Brinser upon inquiry as to the title in virtue of which that possession was maintained, and that, having failed in this respect, he is affected with notice of that which a proper inquiry would have developed.

The rule of law which is thus invoked is settled in a long line of cases, including Jaques v. Weeks, 7 Watts, 261; Maul v. Rider, 59 Pa. 167; Hottenstein v. Lerch, 104 Pa. 454; Roe v. Ream, 105 Pa. 543. But it is said that Detwiler, who was the agent of Hershey in the transaction between him and Brinser, exhibited to Brinser the writing in form of a lease by Hershey to Anderson; that the so-called "lease" was in itself explanatory of the possession, and Brinser was thereby relieved from further inquiry. Leach v. Ansbacher, 55 Pa. 85, is cited in support of this position.

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When this case was here before, we said: "Anderson was at the time in possession, under the terms of the paper which has been denominated a 'lease;' and if Brinser had actual knowledge of the lease, and had no knowledge of the facts relating to its execution, it is prob able, under the ruling of this court in Leach v. Ansbacher, 55 Pa. 85, he might be regarded as an innocent purchaser." Nothing in the transaction," says Mr. Justice Thompson in the case last cited, "gave the least sign to put the purchaser on inquiry. The possession will, it is admitted. But, when the party is in possession under a lease, the knowledge of the lease dispenses with the inquiry of how the possession is held. That knowledge the agent had, and of the very terms of the lease. That

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