afterwards by Hogan to the trustees of both | a reservation of such a condition, or make it the Monte Atla and Claremont estates, and in the slightest degree important? Where does their subsequent accounting with him, that the necessity exist for such a technical conHogan had become financially embarrassed struction? and had sought this equitable mode of settling Here the grantors of the legal title had no with his creditors. But, when the trustees interest in creating a reverter to themselves, carried out the agreement which Hogan had for they were mere trustees. Their grantor, made with Mark, and deeded the Monte Alta whatever his beneficial interest in the trust, property to Mark, they incorporated in their had no apparent interest to subserve, which is deed the restriction which had been agreed to pointed out or which is discoverable, in planin the contract as to the use of the property. ning a reverter of the estate for a breach of Now the obvious and only purpose which condition. There was no interest which was Hogan could have had in view, when the con- not adequately met by the creation of a covetract was made, was to protect the adjacent nant, or limitation in trust that the property property, which he then owned, from being should not be used for the one certain purpose injured by the vicinity of an undesirable struc- mentioned. I think it more agreeable to reature or business. I think we all will agree that son, as it is to the conscience, and it well comthe presumption here, as in every other case ports with the character and origin of this deed, where a restriction is inserted in a deed against if we say that the office of this clause was simundesirable structures or trades, is that the in-ply to restrain the generality of the preceding sertion was for the purpose of protecting rights clause. See Chapin v. Harris, 8 Allen, 594. which the grantor had in adjacent property. The words "provided always, and these In this case the clause obviously was for the presents are upon this express condition," seem benefit of the Claremont estate. This view is to me to serve the purpose of restricting that reinforced by the fact that when the trustees use of the premises which was, of course, gencame to sell the Claremont property no such eral and unrestricted under the grant. They condition was inserted in that deed. When the do not import any new and separate idea; and trustees disposed of the Monte Alta property I think the rule is a safe one that words alone Hogan had ceased to have any interest in it, or should not be deemed to create a condition subother than in having it bring all that could be sequent and to be capable of importing possible obtained from a sale of the properties, in order future forfeiture of estate, except where they to free himself from his embarrassments. do introduce some new clause, the sense of When the legal estate became vested in the which is not referable to and in qualification of trustees their duty was to make the sales yield some preceding clause, and evidences some all that was possible. They had no interest to part of the consideration for the grant of the subserve by conveying the property subject to property by the imposition of an obligation any condition subsequent. The effect, how-upon the grantee. Looking at these words ever, of a covenant in the deed to Mark, covering a restriction like that in the agreement of the parties, would be to enhance the market value of the other property, by preserving to the whole an eligible character. An intention that the re-think we cannot, in reason. strictive clause should operate as a condition subsequent seems hardly supposable, under the circumstances. Except we take the words literally, no reason suggests itself for that construction. Hogan had no legal interest in the property at the time of the conveyance. What interest could he then have which his trustees might be supposed to subserve, or which he might be supposed to insist upon, in securing a reverter of the one Monte Alta estate to himself or his heirs? None is apparent, and I say, therefore, that the reason and the sense of the thing indicate that the clause is to be read as a

covenant.

In construing a clause which imports into an instrument a restriction, or imposes an obligation not to do something, reliance should be placed upon the known or supposable aim of the grantor, or upon the sense of his act. So long as technical words are to be deemed unavailing to control interpretation, we should disregard them and have resort to what may furnish some evidence of the underlying intention. In speaking of the sense of the act, I refer as well to the apparent object to be attained, as to the mode resorted to in order to effect it. What reason have we to justify us in attaching to these particular words so technical a meaning and to freight them with such serious consequences, when it appears that no such interest exists in the grantors as demands

may we say, as they stand in the deed, that they are conditional in sense, when they in reality serve to qualify the generality of the grant in the language which precedes them? I

In Avery v. N. Y. Cent. & H. R. R. Co. 106 N. Y. 142, 7 Cent. Rep. 795, we have a late exposition of the views of this court upon the effect to be given to language in deeds purporting to convey upon express conditions. In that case it was sought to enjoin the defendant from maintaining a fence upon a strip of land dividing its depot premises from the plaintiff's hotel premises and from thus blocking up a passageway between the hotel and depot. The land upon which defendant built the fence was conveyed by deeds which contained the following provisions: "This conveyance is upon the express condition that the said railroad company, its successors or assigns, shall at all times maintain an opening into the premises hereby conveyed opposite to the Exchange Hotel so called" (being the plaintiff's premises) "adjacent to the premises hereby conveyed," etc. The grantors in these deeds had acquired title under a will to the hotel property, and their testator had been the grantor of the property used by the defendant for its depot. The defendant denied the right of plaintiff, to whom the hotel property had been leased by the devisees, to maintain the action, alleging that the language of the provision in the deeds created a condition subsequent, which could only be taken advantage of by the grantors and their heirs. The plaintiff claimed that it must be construed as a covenant. Judge Peckham, delivering the

119 [18 L. ed. 502]; Countryman v. Deck, 13 Abb. N. C. 110.

66

Courts frequently, in arriving at the meaning of the words in a written instrument, construe that which is in form a condition, a breach of which forfeits the whole estate, into a covenant on which only the actual damage can be recovered. See Hilliard, Real Prop. 4th ed. p. 526, 13; 2 Washb. Real Prop. 3d ed. chap. 14, subd. 3, page 3 et seq."

opinion of the court, said: We incline to the construction contended for by the plaintiff. The fact that the deed uses the language 'upon condition,' when referring to the conveyance by the grantors, is not conclusive that the intention was to create an estate strictly upon condition. Construction may frequently be aided by reference to all the circumstances surrounding the parties at the time of the execution of the deeds, because the court is thus enabled to be placed exactly in their situation, and to view the case in the light of such surroundings." After referring to the facts, be continues: "All these facts would lead one to the unhesitating conclusion that the language used in those deeds in 1857 was for the benefit of the hotel property, and was not meant to create a condition subsequent. . . It was intended to be an agreement or covenant between the parties, running with the land, providing for this access or right of way, so as to continue or enhance the value of the hotel property by providing for such easy access to it from defendant's depot for passengers and bag- All concur (Andrews, J., in result), except gage. See Stanley v. Colt, 72 Ü. S. 5 Wall. | Ruger, Ch. J., not voting.

The avenue of reasoning by which the court reached their conclusion in that case is the one which ought to lead us to our conclusion now: that the clause in question, in the case at bar, was intended as a restriction created for the benefit of the adjoining property, expressed in the strongest terms, and which was enforceable as a covenant running with the land; and was not a condition subsequent imposed for the personal benefit of the grantors and their heirs. For the reasons stated, the judgment appealed from should be affirmed, with costs.

CALIFORNIA SUPREME COURT.

TAPPAN, Respt.,

v.

ALBANY BREWING CO., Appt.

(...... Cal.............)

A defendant in a partition suit must make known to the court and to his co-defendants any fact within his knowledge which will prevent a confirmation of the sale; hence an agreement by him, with knowledge that the property was sold for less than its real value, to refrain from objecting to the confirmation of the sale in consideration of the payment to him of an additional sum for his interest in the property, is a fraud upon the court and his co-defendants, is against public policy, and will not be enforced in favor of either party thereto.

NOTE.-Fraudulent concealment of a material fact. If either party to a transaction conceals some fact which is material, which is within his own knowledge, and which it is his duty to disclose, he is guilty of actual fraud. Livingston v. Peru Iron Co. 2 Paige, 390; Gibson v. D'Este, 2 Younge & C. Ch. 542; Wilde v. Gibson, 1 H. L. Cas. 605; Edwards v. McLeay, 2 Swanst. 287, Coop. Ch. 308; Fox v. Mackreth, 2 Bro. Ch. 400, 420; Phillips v. Homfray, L. R. 6 Ch. 770; Baskcomb v. Beckwith, L. R. 8 Eq. 100; Denny v. Hancock, L. R. 6 Ch. 1; Haywood v. Cope, 25 Beav. 140; Lucas v. James, 7 Hare, 410; Drysdale v. Mace, 5 DeG. M. & G. 103, 2 Sm. & Gif. 225; Dolman v. Nokes, 22 Beav. 402; Bowles v. Stewart, 1 Sch. & Lef. 209, 224; Roddy v. Williams, 3 Jones & LaT. 1: Gordon v. Gordon, 3 Swanst. 400; Leonard v. Leonard, 2 Ball & B. 171; Broderick v. Broderick, 1 P. Wms. 240; Rolt v. White, 3 De G. J. & S. 360; Mackay v. Douglas, L. R. 14 Eq. 106; Dicconson v. Talbot, L. R. 6 Ch. 32; Vane v. Vane, L. R. 8 Ch. 383; Stanley v. Stanley, L. R. 7 Ch. Div. 589;

(September 21, 1889.)

APPEAL by defendant from a judgment of

the Superior Court of Alameda County overruling a demurrer to the complaint in an action to recover money alleged to be due under a certain contract. Reversed.

The facts sufficiently appear in the opinion.
Mr. D. N. Anderson for appellant.
Mr. Thomas H. Smith for respondent.

Works, J., delivered the opinion of the court:

The complaint in this case alleges in substance that, an action for partition of certain real estate having been brought, judgment was rendered, decree for the sale of the property

People's Bank v. Bogart, 81 N. Y. 101; Brown v.

Montgomery, 20 N. Y. 287; Bench v. Sheldon, 14
Barb. 66; Nichols v. Pinner, 18 N. Y. 295; Nichols v.
Michael, 23 N. Y. 264; Hennequin v. Naylor, 24 N.
Y. 139; Hall v. Naylor, 18 N. Y. 588; Allen v. Adling-
ton, 7 Wend. 9, 20; Bank of Republic v. Baxter, 31
Vt. 101; Paddock v. Strobridge, 29 Vt. 470; Roseman
v. Canovan, 43 Cal. 110, 117; Drake v. Collins, 5 How.
(Miss.) 253; Bowman v. Bates, 2 Bibb, 47; Rawdon v.
Blatchford, 1 Sandf. Ch. 344; Holmes' App. 77 Pa.
50; Swimm v. Bush, 23 Mich. 99; Snelson v. Frank-
lin, 6 Munf. 219; McNiel v. Baird, Id. 316; Emmons
v. Moore, 85 Ill. 304; Dameron v. Jamison, 4 Mo.
App. 299; Connelly v. Fisher, 3 Tenn. Ch. 382; Young
v. Hughes, 32 N. J. Eq. 372; Howard v. Gould, 28 Vt.
523; Fitzsimmons.v. Joslin, 21 Vt. 129; Hanson v.
Edgerly, 29 N. H. 343; Schiffer v. Dietz, 83 N. Y. 300;
McMichael v. Kilmer, 76 N. Y. 36, 44; Dambmann v.
Schulting, 75 N. Y. 55, 61; Hadley v. Clinton Co. Im-
porting Co. 13 Ohio St. 502; Goninan v. Stephenson,
24 Wis. 75; Hastings v. O'Donnell, 40 Cal. 148; 2 Pom.
Eq. Jur. 389.

entered, and the property sold to the defend- | court, whose duty it was to pass upon and conant; that the property was sold for much less firm, or set aside, the sale, but upon the parthan its real value; that the plaintiff's assignor, ties in the action of partition. It was the plain who was one of the defendants and a tenant in duty of the plaintiff's assignor, if she knew of common of the real estate, being dissatisfied any valid reason why the sale should have been with the price at which the property was sold, set aside, or not confirmed, to make it known was about to commence proceedings to prevent to the court and her co-defendants. the confirmation of the sale by the court; that the defendants, to induce her not to make such objections, agreed to pay her $1,000 additional for her interest in the property immediately upon the sale being confirmed; and that she, relying upon such promise, and in consideration thereof, refrained from making objections to the confirmation of said sale, and that, no objection being made, the sale was duly confirmed.

The defendant paid $100 of the amount, and this action is to recover the balance of $900.

The court below overruled a demurrer to the complaint, and, the defendant failing to answer, judgment was entered against it, and it appeals.

The demurrer should have been sustained. The contract was a fraud, not only upon the

It is contended by the respondent that this was nothing more than the payment of a sum of money by way of a compromise of litigation and that such contracts have been upheld. We do not so construe the agreement. It was a promise to pay a consideration for the concealment of a fact from the court and the parties, material to the rights of said parties, and which it was her duty to make known. Such a contract was against public policy and neither party should receive the aid of the courts to enforce it. Beard v. Beard, 65 Cal. 356.

The judgment is reversed, with instructions to the court below to sustain the demurrer to the complaint.

We concur:

Fox, J., Paterson, J.

ARKANSAS SUPREME COURT.

MEMPHIS & LITTLE ROCK R. CO., Appt., Henson, 39 Ark. 413; Little Rock & Ft. S. R•

v.

E. M. KERR.

(....Ark.....)

1. The extent of the duty which a railroad company owes to the owner of stock upon its track is that the engineer in charge of the train shall use ordinary or reasonable care after the stock is discovered by him to prevent injury to it; and this negatives the idea that the engineer is bound to keep a lookout for stock. 2. The presumption that a watchful lookout, which railroad companies, in their obligations to others than owners of stock, should keep while running trains, would see stock on or near the track, may be considered in determining whether the persons in charge of the train exercised ordinary care to prevent killing stock.

(November 2, 1889.)

Co. v. Holland, 40 Ark. 336; Little Rock & Ft.
S. R. Co. v. Turner, 41 Ark. 161..
Mr. J. S. Thomas for appellee.

Hughes, J., delivered the opinion of the court:

This is an action to recover damages for the killing of a mule by the appellant's engine.

The evidence for appellee tended to show that the mule was grazing upon the railroad track, and that the train approached within about 150 feet of it; it ran down the track about seventy-five yards, and was struck by the enwhistle was sounded several times, but that the gine and killed; that before it was struck the speed of the train was not checked. The evidence for the appellant tended to show that the engineer first saw the mule as it came on the track about 150 feet ahead of the engine; that the engineer, upon first seeing it, sounded the whistle and called for brakes, and that he was

APPEAL from a 'judgment of the Prairie unable to check the train, after he first saw it,

Circuit Court in favor of plaintiff in an action for damages for the killing of a mule. Reversed.

The facts are stated in the opinion. Messrs. U. M. & G. B. Rose, for appellant:

The railroad's duty to guard against injuries to animals first arises when the animals get upon the track. This principle was settled in Kansas City, S. & M. R. Co. v. Kirksey, 48 Ark. 370, a case very similar to this, where the court says: "This measure of vigilance does not require a lookout over the entire breadth of the right of way, and an apprehension of danger whenever an animal is discovered upon

it."

See also Hot Springs R. Co. v. Newman, 36 Ark. 607; Little Rock & Ft. S. R. Co. v. Trotter, 37 Ark. 593; Little Rock & Ft. S. R. Co. v.

so as to prevent the engine striking the mule; that he was keeping a close lookout at the time. Verdict was given for plaintiff; a motion for a new trial was overruled, and the railroad company excepted and appealed.

The court, by modifications of the instructions asked for by the appellant, charged the jury, in effect, that if the proof showed that the servants of the company, in charge of the train at the time, were negligent in keeping a careful lookout, the company was liable.

In Little Rock & Ft. S. R. Co. v. Holland, 40 Ark. 336, this court, by Judge Smith, said, that "ordinary care in the management of their trains is the measure of vigilance which the law exacts of railroad companies to avoid injury to domestic animals; and this means, practically, that the company's servants are to use all reasonable efforts to avoid harming an ani

mal after it is discovered, or might by proper | The extent of the duty which a railroad comwatchfulness be discovered, on or near the track."

INDIANA SUPREME COURT.

APPEAL from a judgment in favor of plain-sonal property covered by the policy was in the

NOTE.-Assignee of chose in action may sue in his | legal title, and entitled to sue in his own name, as

The rule requiring the assignee of a chose in ac-43 Ohio St. 284. tion to sue in the name of the assignor is one of those old technical doctrines the reason for which has long since ceased, and it has been a subject of regret in modern times that so narrow a rule of law should ever have been established. Glenn v. Dodge, (D. C.) 3 Cent. Rep. 285.

The good sense of that rule seems to me to be very questionable; and in early as well as in modern times it has been so explained away that it remains, at most, only an objection to the form of action in any Masters v. Miller, 4 T. R. 340; Glenn v. Dodge, (D. C.) 3 Cent. Rep. 286.

It is abundantly settled that upon a sale and transfer of property covered by a policy of insurance, and an assignment of the policy to the purchaser, duly assented to by the company, a new and original contract of insurance arises between the insurance company and the assignee, which the latter may enforce without regard to what may have occurred prior to the assignment. The policy, it is said in such a case, expires with the transfer of the estate, so far as it relates to the original holder; but the assignment and assent of the company thereto constitutes an independent contract with the purchaser and assignee, the same in effect as if the policy had been reissued to him upon the terms and conditions therein expressed. Wilson v. Hill, 3 Met. 66; Fogg v. Middlesex Mut. F. Ins. Co. 10 Cush. 337; Flanagan v. Camden Mut. Ins. Co. 25 N. J. L. 506; Cummings v. Cheshire Co. Mut. F. Ins. Co. 55 N. H. 457; Steen v. Niagara F. Ins. Co. 89 N. Y. 315; Shearman v. Niagara F. Ins. Co. 46 N. Y. 527; Hooper v. Hudson River F. Ins. Co. 17 N. Y. 424; Ellis v. Council Bluffs Ins. Co. 64 lowa, 507; Wood, Ins. SS 110, 366.

On the 27th day of June, 1885, Bittle, without notice to the company, and without its knowledge or consent, mortgaged the farm upon which the house, barn and other buildings insured were situate, to the Provident Life & Trust Company of Philadelphia to secure a loan of $5,000. In the month of September following he sold and conveyed the land, with the buildings thereon, to William Munns for the consideration of $12,000, and in a few days thereafter, without any new consideration, transferred the policy of insurance to the purchaser. The latter soon afterwards presented the policy to the company's general superintendent, who indorsed its consent thereon that the policy might be assigned to he purchaser, subject to all the terms and conditions mentioned or referred to therein. The company had no notice or knowledge of the existence of the mortgage at the time it gave its consent to the transfer of the policy. On July 27, 1886, the barn, shed and granary and their contents were consumed by fire, entailing a loss amounting to $1,700. After the destruction of the property the company learned of the mortgage executed by Bittle, when it refused payment of the loss, on the ground that placing the in-ferred to the purchaser, and, upon notice to the cumbrance above mentioned on the property was a violation of the condition of the policy which rendered it null and void.

Where an estate is sold and the policy trans

insurer, he assents to it, a new and original contract of indemnity arises to the assignee, which he may enforce in his own name. The policy in such case expires with the transfer of the title to the estate, but the assent of the insurer to the assignment of the policy constitutes a new contract. Pratt v. New York Cent. Ins. Co. 64 Barb. 589; Fland. Ins. 412, 484; Foster v. Equitable Mut. F. Ins. Co. 2 Gray, 219.

Aside from the prohibitory clause, policies of insurance, prior to any loss, are not in their nature assignable from one person to another without the express consent of the insurance company issuing them. They are therefore subject to the common-law rule, the effect of which is that where the assignee of a contract gives notice of the assignment to the other party to the instrument, and the latter assents to it. the transaction constitutes a new engagement between one of the parties to the contract and the assignee of the other, the terms of which are regulated and fixed by the original contract. Fogg v. Middlesex Mut. F. Ins. Co., Wilson v. Hill, and Hooper v. Hudson River F Ins. Co. supra; Fland. Ins. 484.

Whether the judgment shall be affirmed or or reversed depends upon whether or not the company can avail itself of the default of Bittle in an action on the policy by the plaintiff. It must be assumed as a matter of course that the latter, when he purchased the farm and took an assignment of the insurance policy, had knowledge of the mortgage on the land and of the condition relating to incumbrances in the policy. Imputing to him knowledge of these facts, the question remains, Did he take the property strictly as assignee, subject to all the infirmities, defenses, or any forfeiture which the laches or default of the assignor may have imposed upon it, or did the assignment, with the consent of the company, constitute the policy in effect a new and original contract between the latter and the assignee, unaffected by any previous forfeiture that may have occurred? If the transfer of the policy simply substituted the assignee to the rights which the assignor then had in the contract, it may well be said that if the latter had no rights by reason of the forfeiture, which occurred prior to the assign- In order that a policy of insurance may be ment, the next transfer conferred no new rights effectual, the insured must have an interest in on the assignee. If, on the other hand, the as- the property covered by the contract of insursignment of the policy, with the assent of the ance, not only when the contract is entered company, constitutes a new, original and in- into, but when the loss occurs. If the interest dependent contract between the assignee and in the property and the interest in the policy the insurer, then it is quite clear that no act of become separated, the operation of the policy forfeiture committed by the assignor before the becomes suspended; and if a loss occurs while sale, assignment and consent is available against the policy is thus suspended, no recovery can the policy in the hands of the purchaser newly be had. An assignment of an insurance insured. A contract of insurance is purely a policy, without a transfer of the property inpersonal engagement, by which the insurer, for sured, would be an idle ceremony so far as a consideration paid, agrees to indemnify the transferring to the assignee any beneficial inperson insured against loss arising from dam-terest in the contract. On the other hand, the age to his property. The contract appertains to the person with whom it is made, and does not run with the property insured. Nordyke & M. Co. v. Gery, 112 Ind. 535, 11 West. Rep. 346; Cummings v. Cheshire County M. F. Ins. Co. 55 N. H. 457.

trensfer of the property insured suspends the operation of the policy, which becomes inoperative for want of a subject matter to act upon, until, by the assignment and assent of the company, a new contract of insurance, embodying the same terms and conditions as the old, arises