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by fire under policies of insurance, are binding in law, and, indeed, highly favored by the courts." Hall v. Insurance Co., 57 Conn. 105, 17 Atl. 356.
The doctrine of this case is approved by the supreme court of Maine in Bangor Sav. Bank v. Niagara Fire Ins. Co., supra.
Counsel for the plaintiff in error cite us to the case of Boyle v. Insurance Co. (Pa. Sup.) 32 Atl. 553. That case is in entire harmony with the views here expressed. The policy in that case is identical with the one here in suit. One of the questions in that case was whether the action was prematurely brought in view of the arbitration clause in the policy. The insurance company, being dissatis. fied with the proofs of loss, demanded the appointment of appraisers without first making an effort to agree with the insured upon the amount of their loss, and thereupon the insured brought their action. The court held that the arbitration clause of the policy "con. templates an actual effort to agree” by the parties themselves, and that the insurer could not demand the appointment of appraisers until it had made an effort to agree with the insured upon the amount of the loss, and that, having demanded an appraisement without first making such effort, the insured had a right to bring their action on the policy. The court said: "Neither can insist on the second, who has not shown himself ready and willing to enter upon the first, because these remedies are not optional to either. They are successive, unless both agree to the contrary.” It will be observed that the court say the successive steps leading up to the appraisement provided for by the policy are obligatory on the parties "unless both agree to the contrary." 1 In this case the action of the insurer and the insured in appointing appraisers before making any effort to agree between themselves on the amount of the loss was a waiver of the first requirement of the arbitration clause of the policy, and the court below should have so told the jury. And it should have further told them that the appraisement fixed the value of the property at the time it was burned, and that their verdict should be arrived at upon that basis. The court did not do this, but told the jury that the parties had “chosen to rely,—the plaintiff upon this paper, as stating the real value of the premises at the time they were destroyed; and the defendant insisting, apparently, that he is not bound to pay until there shall be some formal appraisement according to the terms of this policy.” This was a correct statement of the issue between the parties, but it was not followed up, as it should have been, by a statement that the appraisement, upon the evidence, was binding on the parties. Whether there was or was not a valid appraisement was the only contested issue at the trial, and, upon the un. disputed evidence, that was clearly one of law for the court. If the appraisement was binding on the parties, the insured was entitled to recover; otherwise not, for the reason that his action, so far as related to the value of the property, was grounded solely upon the appraisement. No evidence as to the value of the property other than the appraisement was introduced by either party, or could have been, under the issue made by the pleadings. But the court told the jury that, if the appraisement did not show the value of the property, they should ascertain its value from the evidence. Under the issue in the case this was undoubtedly an error, but it was an error in favor of the defendant, and of which it cannot complain. Under the charge the jury were at liberty to find the value of the property was less than that fixed by the appraisers, but, under the pleadings, they could not find tbat it was greater, and they did find that it was of the value fixed by the appraisers; or, in other words, they opheld the appraisement.
1 Construing this same arbitration clause, the court in Insurance Co. v. Alvord, 21 U. S. App. 228, 9 C. C. A. 623, 61 Fed. 752, held that it was “a collateral and independent agreement, a breach of which, while it will support a separate action, cannot be pleaded in bar to an action on the principal contract."
In Boyle v. Insurance Co. (Pa. Sup.) 32 Atl. 553, the court say: "The contract contains the undertaking of the company to insure the general stock of merchandise of John D. Boyle's Sons against all direct loss or damage by fire' to the extent of $2,500, in consideration of the payment of a cash premium of $25. Arranged around this contract is a line of defensive 'stipulations, exceptions, conditions, and provisions.' Some of these are not numbered, but, with others, numbered from 1 to 112, inclusive, they stand bristling like armed sentinels around the contract, and the liability of the company thereunder, ready to impale even an honest claimant on a bare technicality."
The answer in this case alleges that the insured failed to comply with a number of these stipulations and conditions, touching which it is only necessary to say that they were of such a character that they were waived when the parties left the ascertainment of the loss to the appraisers. “By joining in the proceedings to fix the amount of the loss, the company manifested its intention to dispense with preliminary formalities. The assured had a right to rely upon this manifestation of intention.” Carroll v. Insurance Co., 72 Cal. 297, 13 Pac. 863.
The judgment of the circuit court is affirmed.
WARD V. COCHRAN. 1
L ADVERSE POSSESSION-PAROL CONTRACT OF SALE.
A vendee of land in possession under a parol contract of sale holds ad. versely to his vendor from the time that the contract is executed by the
payment of the purchase money. 1 CONTRACT OF SALE-ESTOPPEL OF VENDOR.
If the vendee has not been in possession so long as to render the statute of limitations available, he may likely plead the contract of sale and the payment of the purchase money by way of estoppel in bar of an action in ejectment by the vendor. ADVERSE POSSEBBION.
The possession of one taking land in payment for a debt is adverse as against all the world.
1 Rehearing denied January 20, 1896.
4. INSTRUCTIONS-SPECIAL VERDICT.
When the jury are required by the court to return a special verdict, it is unnecessary and improper to give instructions upon general principles
of law applicable to the case. 5. SAME-HARMLESS ERROR.
When the verdict returned is a special one, error in instructions given relative to general rules of law is not ground for reversal if the judgment
actually rendered is clearly warranted by the verdict. 6. EVIDENCE-DECLARATIONS AS TO TITLE.
Declarations made by one in possession of land as to the nature of his claim to the land are admissible to show the character of his possession,
whether they are in disparagement of his title or otherwise. 7. INADMISSIBLE EVIDENCE-FAILURE TO OBJECT
There can be no review of the admissibility of evidence given in response to questions propounded by appellant's counsel, to exclude which
no motion was made. 8. EVIDENCE-DECLARATIONS AGAINST INTEREST.
Where plaintiff claims under the foreclosure of a mortgage given by a former owner, and defendant claims title by adverse possession, declarations by such former owner, since deceased; made before the making of the mortgage, that he owed defendant some money, and that, not being able to pay it, he had given him some land in a certain section of a city, in which section the land in dispute lies, are admissible, as being against the interest of the party who made them, to show that defendant took possession of the property as owner under a parol contract of sale.
In Error to the Circuit Court of the United States for the District of Nebraska.
Seth E. Ward, the plaintiff in error, brought an action of ejectment against Elmer G. Cochran, the defendant in error, to recover the possession of 20 acres of land now situated in the city of Omaha, state of Nebraska, which was described in the complaint as being the W. 12 of the N. E. 14 of the S. W. 14 of section 4, township 15, range 13 E. Both parties to the suit claimed title to the property in controversy from a common source, to wit, under E. B. Taylor, in whom the title to the property appears to have been well vested prior to the year 1865. The plaintiff purchased the property in June, 1876, at a judicial sale under a decree foreclosing a mortgage upon the property which was executed by E. B. Taylor on July 28, 1871. The defendant deraigned title from the common source in the following manner; that is to say: He claimed that John Flannagan, his immediate grantor, went into possession of the property in controversy some time during the year 1805 under and in pursuance of a verbal contract with said E. B. Taylor, whereby Flannagan agreed to take the property in payment of a certain debt which Taylor then owed Flannagan; that Flannagan thereafter occupied the premises continuously under an open and notorious claim of ownership for about 20 years, and until some time in the year 1885, when he sold and conveyed the property and transferred his possession to Elmer G. Cochran, the present defendant, There was no controversy at the trial with respect to the merits of the plaintiff's title. On the contrary, it was conceded that the plaintiff held the paper title, and that he was entitled to recover the possession of the premises, un-, less it appeared that John Flannagan had entered into possession of the same under a parol contract of sale, prior to the date of the mortgage under which the plaintiff deraigned title, and had thereafter held possession of the property in such manner and form, and for such length of time, as was necessary, under the statute of limitations of the state of Nebraska, to create a legal title by adverse possession. In the state of Nebraska an action for the recovery of the possession of lands, tenements, or hereditaments can only be brought within 10 years after the cause of action shall have accrued. Consol. St. Neb. 1891, & 4512.
The jury returned a special verdict in the following form: “We, the jury, duly impaneled and sworn to try the issues joined in the above-entitled cause, do find and say, that one John Flannagan, in the year 1865, entered into the
possession of the west one-half of the northeast quarter of the southwest quarter of section 4, in township 15 north, of range 13 east of the sixth principal meridian, in Douglas county, Nebraska, being the land in controversy in this case, under a claim of ownership thereto; and that he remained under such claim of ownership in the open, actual, continuous, notorious, hostile, exclusive, and adverse possession thereof for the period of twenty years thereafter, and until he sold and transferred the same to the defendant in this case. We further find that John Flannagan and Julia Flannagan, his wife, by good and lawful deed of conveyance, conveyed said premises to the defendant in this suit in 1885, and thereupon surrendered his said possession to said defendant; and that said defendant has remained in the open, actual, continuous, notorious, hostile, exclusive, and adverse possession of said land described, under claim of ownership, down to the present time. We further find that at the commencement of this suit the said defendant was the owner of and entitled to the possession of said above-described land, and upon the issues joined in this cause we find for the said defendant.” On the rendition of the said verdict the circuit court rendered a judgment in favor of the defendant, Cochran. To reverse that judgment the plaintiff below brought the case to this court by a writ of error,
John L Webster and Hugh C. Ward, for plaintiff in error.
THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court.
It is contended, in the first place, that, in view of all the evidence, the trial court should have directed the jury to return a verdict in favor of the plaintiff, and that it erred in refusing to give an instruction to that effect, which it was requested to give. While advocating this view, counsel for the plaintiff admit that the evidence showed that John Flannagan entered into possession of the premises in controversy some time in the year 1865, and that he held possession thereof continuously until some time in the year 1870. They insist, however, that Flannagan's possession was interrupted at the latter date, and that he did not resume or regain possession of the property until the year 1874, and that in the meantime the property was vacant and unoccupied, and that it was so vacant and unoccupied when the mortgage of July 28, 1871, was executed, under which the plaintiff claims title. It is further insisted that during the year 1878 Flannagan occupied the property under a lease which was granted by the plaintiff, and that from the year 1879 until some time in the year 1885 he also occupied the premises as a subtenant of one Jacob Elton, who had rented the land during those years from the plaintiff. In other words, the plaintiff contends that he succeeded in defeating the defendant's alleged title by conclusive evidence that the defendant's possession was broken from 1870 to 1874, and again from 1878 to 1885, and that, in view of such proof, the trial court should have directed a verdict for the plaintiff. After a careful examination of the testimony preserved in the bill of exceptions, we have not been able to assent to that view of the case. Although the plaintiff offered considerable evidence which tended to show that Flannagan's possession was interrupted for some time be. tween the years 1870 and 1874, and while it is true that some tes. timony was offered which tended strongly to show that Flannagan
attorned to the owner of the paper title about the year 1878, and that bis possession of the property after the year 1878 was not exclusive, yet it cannot be said, we think, that the plaintiff succeeded in disproving the claim of adverse possession by such a conclusive array of facts and circumstances as would have warranted the court in withdrawing that issue from the jury. It would subserve no useful purpose to review all the testimony bearing upon the question whether Flannagan's possession of the property was interrupted for a time between the years 1870 and 1874, as claimed by the plaintiff, or whether he voluntarily attorned to the plaintiff at any time thereafter prior to the year 1885. These were disputed and hotly-contested issues of fact. Flannagan himself stoutly maintained that he settled upon the property in dispute about the year 1865, that he built a cabin thereon, tilled the soil from year to year thereafter, and that he made the place his home until he sold the premises to the defendant in the year 1885. He denied that he had ever abandoned the possession of the property, or attorned to the plaintiff or to his agents; but insisted, to the contrary, that he had at all times defended his possession to the best of his ability against all intruders. It is important to observe, in this connection, that Flannagan was an illiterate colored man, who had been a slave, and who had emigrated to the North, and had settled in the city of Omaha, during the early years of the war. He was, doubtless, ignorant of the manner in which the title to real estate is ordinarily conveyed, and most likely believed that he could rest secure on Taylor's verbal promise to give him the property, especially after he had taken possession of it, and had built a cabin on the land. His conduct, therefore, in taking possession of the property, and in holding it for years without a deed, and without demanding any written evidence of his title, cannot be judged by the ordinary standard; and such conduct on his part does not warrant the same inference against the validity of the claim which he now makes that might reasonably be drawn if he was a more intelligent man, and was better versed in business affairs. Moreover, other witnesses were called by the defendant, who gave testimony which corroborated Flannagan's statements, and which also tended to show that his possession was not broken between the years 1870 and 1874, but that he in fact made his home on the property, and cultivated the soil, during all of that period; and that his occupation of the property was practically continuous from the date of his first entry until some time in the year 1885, when he sold the premises to the defendant. Under these circumstances, our conclusion is that the issue as to the extent, duration, and character of Flannagan's possession was properly left to the jury. It is conceded that he occupied the land froin 1865 to 1870. It is equally indisputable that he was the sole occupant of the property from 1874 to 1878; and there was some evidence, sufficient, we think, for the consideration of the jury, that he neither abandoned the property between the years 1870 and 1874, nor attorned to the plaintiff in the year 1878 or at any time thereafter.
It is insisted by the plaintiff that the peremptory instruction to return a verdict for the plaintiff should have been given for an.