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the one class is stripped of this part of the withdrawal value of his shares, while the other class receives all the benefit, by the application of this value to the payment of its loans. The risk of losses by mismanagement is inherent in the character of the scheme, and, while such losses may protract the life of the series, they do not prove insolvency. A case of such rottenness in the affairs of the association should appear as to render it in the highest degree improbable that the shareholders, in the face of the discouraging condition of affairs, will continue to pay dues, and so bring the series to maturity. In connection with this observation, it may be remarked that there is much to be said in favor of the rule laid down in the case of Towle v. Society, 61 Fed. 446, in dealing with premiums in insolvent cases. rule announced in that case was that the borrowing member had the right to be credited only with the unearned portion of his premium; that is, the proportion which a withdrawing member would be entitled to. I will, however, adopt the rule sustained by the great weight of authority, and by the supreme court of New Hampshire, in advising Mr. Taggert in this matter, viz. that only the sum actually received by the complainant is to be charged against the borrower, which, as already remarked, amounts to actually the same thing as crediting him with the premium paid. He is also to be credited with that part of the interest paid on account of the amount so deducted.

The

The last question is whether he should be credited with all or any part of the dues paid by him. It has been held by some highly respectable courts that a mortgagor, when an association of this kind is prematurely wound up, is entitled to a credit for all the dues which he has paid. Other courts have held that he is not entitled to credit on the mortgage on account of dues paid, and that he must await the final distribution of the assets of the association, and then take what his shares are proved to be worth. The rule supported by the last class of cases, in my judgment, produces a more equitable-indeed, the only equitable-result. The payment of dues stands upon an entirely different footing from the payment of premiums. The latter are paid by shareholders, it is true, but not as shareholders, but as borrowing shareholders. It is paid as a part of their contract with the association, of which the mortgage is a part; and it can be said that, when the association fails to perform, then the debtor is relieved from paying what he agreed to pay in consideration of performance. But dues are paid by all the members. The fund accumulated by these payments belongs to all members alike. If by maladministration of the affairs of the association the fund is diminished, the losses should fall evenly upon all. The accuracy of this proposition seems to be too obvious for discussion. Now, if a borrowing member is per

mitted to set off all the money he has paid as dues, it is perceived that he receives the value of his shares, so far as that value is the result of dues; while the nonborrowing members are compelled to bear all the losses. The accuracy of this proposition seems also to be equally manifest. Now, what is equitable is that each member shall receive his proportionate share of the assets, which represents the remainder of dues accumulated. Inasmuch as this amount cannot be determined until the coming in of the final account of the receiver, and inasmuch as the amount due upon the mortgage must be settled at once, there can be no credit upon the mortgage debt on account of this, at present indeterminate, amount. As to it, the mortgagor must await the period of final distribution. The nonapplicability as an offset of the dues paid by the borrower is held in the following cases: Strohen v. Association, 115 Pa. St. 273, 8 Atl. 843; Rogers v. Hargo, 92 Tenn. 35, 20 S. W. 430; Curtis v. Association (Conn.) 36 Atl. 1023; Bank Com'rs v. Granite State Provident Ass'n (N. H.).1

The last case embodies the instructions given by the supreme court of New Hampshire to Mr. Taggert concerning the affairs of this corporation. The result in detail is therefore this: The complainant is to be charged with $360, with interest, and to be allowed the interest paid, including the portion of the interest paid on account of the premium as an overpayment. Interest should also be allowed upon the overpayment from the date of each payment.

GRAY v. BLUM et al.

(Court of Errors and Appeals of New Jersey. Oct. 30, 1897.)

RECEIVERS ALLOWANCE OF CLAIMS-ESTOPPELDEFECTS IN PROOF.

1. A receiver of a credit-system insurance company stands in the place of the company, as to the allowance or disallowance of the claims against it; and when he acquires knowledge of a loss while the company is solvent, and does some act that implies that he will not insist upon proper and correct proofs of loss being made, he cannot thereafter set up this omission against an allowance of the claims for pro rata distribution.

2. Where the notice and proof of loss are defective, and the insured negotiates as to proper notice and proof, and the proofs are offered, and unobjected to by the receiver, and the insured is led to believe by some act of the receiver that no defect exists, or that an existing defect is immaterial, the defect is waived, and the claim must be allowed.

(Syllabus by the Court.)

Appeal from court of chancery; Reed, Vice Chancellor.

George R. Gray was appointed a receiver of the United States Credit-System Company. From an order disallowing a claim, Alfred Blum and Lucas Toch appeal to the court of chancery, and from a judgment allowing the claim the receiver appeals. Affirmed.

1 Opinion had not been filed Jan. 24, 1898.

Hayes & Lambert, for appellant. Chas. E. failure blanks of the company, with the quesHill, for respondents.

LIPPINCOTT, J. On the 15th day of June, 1894, the United States Credit-System Company issued a certificate of guaranty to the respondents, by which the credit-system company agreed to pay to them such sum, not exceeding $5,000, according to the conditions of the certificate, on the total gross sales and shipments of merchandise which they might make between March 15, 1894, and March 14, 1895, to their customers, as they might actually lose on such shipments to legally ascertained insolvent debtors, of whom the United States Credit-System Company had been notified on its notice of failure blanks, with all questions thereon answered, within 10 days after information to them of such insolvency. The other provisions of the certificate need not be referred to, as they are immaterial to the decision of this case. The respondents, during the period of the insurance, had made sales and shipments of merchandise to the Saloon-Fixture Company of the City of Chicago to the amount of $2,414.46. On this sum there was a credit to the fixture company of the sum of $198.96, leaving a balance due of $2,215.50. The saloon-fixture company failed on August 13, 1894, with this balance still due the respondents, and on the same day they received notice of such failure. According to the terms of the certificate, the respondents' own loss would be $1,000, and therefore the insurance held good only for $1,215.50, an allowance of which is sought against the receiver in the distribution of the assets of the United States Credit-System Company. The respondents received notice of the insolvency of their debtor, the saloonfixture company, on August 13, 1894. Mr. Blum testifies that on that day he mailed to the United States Credit-System Company notice of this insolvency, along with statement of the loss sustained. Some time between that date and August 24th, the United States Credit-System Company failed, and on August 23d a temporary receiver of that concern was appointed. The claim was presented to the receiver, and on November 15, 1894, he disallowed the same, on the ground that, according to the conditions of the certificate, notice of loss had not been sent to the company within the 10 days. From that disallowance an appeal was taken to the court of chancery. In that court an order was made that the claim be allowed by the receiver, as duly proved, and entitled to a pro rata payment with the other debts of the United States Credit-System Company, with costs of appeal. The learned vice chancellor founded this order upon the finding of the fact that the notice of insolvency, with statement of loss, was on August 13, 1894, mailed to the company. Whether the notice mailed was a sufficient proof of loss, under the conditions of the certificate, is exceedingly doubtful. The certificate required that the notice should be on the

tions thereon answered. This letter and statement were not on such failure blanks, and neither the letter nor statement contained the items of information required. There exists much doubt, also, whether the letter and statement, such as they were, were ever mailed or received by the company.

But the conclusion reached is that the order of the court of chancery should be affirmed, and the claim allowed by the receiver, for a pro rata distribution, upon the ground that the receiver has waived the want of presentation to the company during its solvency of the formal proof of loss, as required by the certificate. The facts, as they appear to be, in the case, are that at the time of the information of the failure of the saloon-fixture company to the respondents, on August 13, 1894, the United States Credit-System Company was on the eve of insolvency itself. The fact, also, may be taken as found by the vice chancellor, that some sort of notice and statement of loss were sent by the respondents to the creditsystem company on that day, and at the same time the respondents issued an attachment for their claim, so that it was in a state of litigation. The exact date of actual failure of the credit-system company does not appear. The respondents say that it was about August 13, 1894. The receiver was appointed August 23, 1894, just 10 days after the information of the failure of the saloon-fixture company had been received by the respondents. There is also evidence that the respondents, after notice that their proof of loss was informal, sent, on August 24, 1894, to the company and to the receiver, a formal statement of loss, on the failure blanks, in accordance with the condition of the certificate. The secretary of the credit-system company, who remained in the service of the receiver, claims that no such letter and statement were received; but the fact is that on September 5, 1894, the respondents mailed to the receiver a letter inclosing the account of the respondents against the saloon-fixture company. This was noted by the secretary as having been received on September 7, 1894, and so marked on the notice. They were notified by the receiver that their proof of loss was informal,-apparently, by postal card, from the receiver. Again, on September 26, 1894, they inclosed a certified copy of their statement of loss to the receiver. On September 28, 1894, this statement was returned because it was wrongly made out, and directions were given the respondents by the receiver that they must make out and verify their claim under oath, stating the amount they claimed the saloon-fixture company owed them. In accordance with these directions, the respondents sent to the receiver a statement, under oath, of their claim against the saloon-fixture company. On October 17, 1894, the receiver again informed them that their affidavit was faulty, and directed them to send in the claim against the saloon-fixture company, under oath. On October 18, 1894,

such statement was sent to the receiver. These facts fully appear by the correspondence between the receiver and the respondents. On November 15, 1894, the receiver disallowed the claim, upon the ground that the respondents never filed any notice of loss with the United States Credit-System Company while it was solvent, and that no notice was filed with him until September 7, 1894, and claiming that the condition of the policy which required such notice within 10 days after information of failure of the debtor had not been complied with, and that, therefore, the respondents had no claim for an excess loss against the credit-system company. We think it was entirely too late for the receiver to disallow this claim. Under the facts and circumstances in proof in this matter, and which were before the receiver, there was a clear waiver of this condition of the certificate. It is manifest here that the deficient notices were taken by the receiver, and explicit instructions given by him to the respondents for their correction. Under the circumstances the respondents were led to believe that the receiver had dispensed with this condition of the contract, and upon the faith of that they went on dealing with him. It was very easy, on the 5th or 7th of September, to have said to the respondents that their claim could not be entertained, and that this condition would be insisted upon; but the continued negotiations for the correction of the proofs of loss reveal a state of facts which is only consistent with a waiver of that condition. As was said in City Bank of Louisiana v. First Nat. Bank, 6 H. L. C. 360, the law will not allow one to take up the inconsistent position of at once "approbating and reprobating"; and in this view it is quite immaterial what the real intention of the receiver may have been, for he will be estopped from denying the fact of waiver. His conduct raised a belief in the minds of the respondents that he intended to waive one of the terms of the contract, and it would be quite immaterial what his intention may have been. Roby v. Insurance Co., 120 N. Y. 510, 24 N. E. 808; Armstrong v. Insurance Co., 130 N. Y. 560, 29 N. E. 991; Ronald v. Association, 132 N. Y. 378, 30 N. E. 739; Everett v. Insurance Co., 142 Pa. St. 332, 21 Atl. 817; Insurance Co. v. Wolff, 95 U. S. 326, 333. In this as in kindred cases, the receiver stands in the place of the company, as to the allowance or disallowance of claims of this character under the statute which confers this power and imposes this duty upon him. At least, no question of this character was made in the argument; and therefore it is presented the same as if the act of waiver, if any existed, was that of a duly-authorized agent or officer, having full power to waive this condition of the certificate. The waiver of notice of loss, or defects in proof of loss, or in due time, of their presentation, are common instances of the application of the general doctrine, and instances are so numerous as to make citation of authorities tedious. When

the insurer acquires knowledge of loss, and does some act that implies that he will not insist upon notice being given, he cannot thereafter set up the omission to notify, or at least his conduct is evidence of waiver. Weed v. Insurance Co., 133 N. Y. 394, 31 N. E. 231. Where, on death blanks, forms for proofs are given, and the insured advises and negotiates as to proper proof (Insurance Co. v. Edwards, 122 U. S. 457, 7 Sup. Ct. 1249), it has been held that when the proofs offered are unobjected to, and the insurer leads the insured, by some overt act, to believe no defect exists, or that an existing defect is immaterial, the defect is waived. Keenan v. Insurance Co., 12 Iowa, 126. It has also been held that a waiver may be inferred when the insurer is the cause of the delay of the insured in presenting proofs of loss, as where the proofs are sent back by the insurer for correction, and again sent back after the time has expired. Insurance Co. v. Grunert, 112 Ill. 68; Insurance Co. v. Edwards, 122 U. S. 457, 7 Sup. Ct. 1249. The insurer's furnishing blanks to the insured, after the time, has been considered evidence of waiver. Goodwin v. Insurance Co., 73 N. Y. 480. Instances of waiver are so numerous that it can well be stated that each case depends upon its own circumstances for a determination of the question. Upon the ground of implied waiver, I vote to affirm the order of the court of chancery directing the allowance of this claim by the receiver.

DAVIS v. LOWDEN. (Court of Chancery of New Jersey. Oct. 30, 1897.)

DOWER QUARANTINE - WHEN RIGHT EXISTS POSSESSION OF HUSBAND-WAIVER.

1. Revision, p. 320, § 2 (P. L. 1870, p. 22), provides that, until dower be assigned to her, "it shall be lawful for the widow to remain in and to hold and enjoy the mansion house of her husband, and the messuage or plantation thereto belonging, without being liable to pay any rent for the same." Deceased, with his family, occupied part of his building as a dwelling, and rented the remainder as a store to a firm of which he was a member, and as a dwelling for his co-partner. Held, that deceased had not been in such possession of the portion of the building so rented as would enable the widow to "remain" in possession thereof under the statute.

2. Where a widow has signed a lease to a third person for premises belonging to deceased's estate, under which the tenant has taken possession, and remains in possession, she is estopped from claiming quarantine in said premises, although the lease was never executed by the executor or by the guardian of the minor heirs, it having been acquiesced in by them.

Bill by Grace E. Davis against John J. Lowden, as guardian of Lester Roscoe Davis. Heard on pleadings and proof. Decree for defendant.

P. H. Gilhooly, for complainant. Joseph Cross and John J. Lowden, for defendant.

PITNEY, V. C. This is a bill by a widow against the heir at law of her husband ask

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ing that dower be set off to her; also asking for rents and profits of premises, in which she claims a quarantine, until dower shall be set off. The facts are as follows: The husband, Lester Davis, died on the 23d of June, 1896, testate of a will in which he gave to the complainant $2,000 in addition to her right of dower in his real estate. He devised all the rest of his estate, real and personal, to his son Lester Roscoe Davis, an infant under the age of 14 years, the issue of a prior marriage. The testator died seised of several pieces of real estate, none of which, as appears from the evidence and statements of counsel, was of any considerable value, except a lot of land on the corner of Third and Fulton streets, in the city of Elizabeth, upon which stood a large building, 50 feet front by feet deep, 3 stories high. The main floor, to the full width of 50 feet, was designed and used as a mercantile store and salesroom; the second and third floors were designed and used mainly for dwellings; but one or two rooms on each floor were used for storage of goods in connection with the store below. The dwellings were reached by two routes; one an open stairway from the center of the open storeroom, and another a private stairway leading from Fulton street at the side, furnished with two doorbells,-one for the second, and one for the third, floor. The dwelling rooms on the second floor and two of those on the third floor were occupied by Mr. Davis and his family, and the remaining dwelling rooms on the third floor were occupied by Mr. Jayne (his business partner) and family. Mr. Davis erected this building about the year 1890 or 1891 for his own use, and designed and arranged it as above stated, and about that time he entered into a contract of partnership with Mr. Jayne for the carrying on of a hardware and paint business. The whole building, with stable, etc., in the rear, was rented to the firm of Davis & Co., composed of Mr. Davis and Mr. Jayne, at $1,000 a year, with the understanding that each partner was to have the privilege of living in the dwelling rooms over the store in the manner above stated. At the death of Mr. Davis, in June, 1896, his partner, as survivor, continued the business, and arranged with the executor to purchase all of Mr. Davis' interest in the business, and by a contract with the executor rented the premises (except the living rooms that had been occupied by Mr. and Mrs. Davis) for five years at $750 a year. Mr. Lowden was at that time the counsel for the executor, and, under the mistaken notion that the executor had power to execute a lease for the premises, he prepared a lease from the executor and Mrs. Davis, the complainant, as widow, to Mr. Jayne, for the whole premises, "excepting the nine rooms on the second floor and the two rooms on the third floor which are now in the use and occupation of the widow and family of the said deceased," for the term of five years from the 11th of Au

gust, 1896, at the rent of $750 a year, in monthly payments of $62.50 on the 11th day of each and every month. The lease provided that the widow and family of the deceased should have the right and privilege of keeping coal and wood in the cellar for their household use, and a right of way and the use of the stairway. It further provided that the apartments of the widow should be heated as theretofore by the steam-heating apparatus then in the said building, without expense to the widow and family of the deceased. There was a further provision that, in case the widow and family chose to vacate the premises reserved for them, the lessee, Jayne, would take them at the rent of $250 a year. Then follows this: "It is hereby understood, by and between the parties hereto, that the rents hereby reserved and made payable to the said Mack, executor as aforesaid, shall be divided, after payment of lawful charges against the same, between the parties of the first part, in the proportions to which they may be entitled by law, and that payment to the executor shall operate as a release of all liability on the part of the party of the second part for division of payment." This lease was executed by Mrs. Davis, the complainant, and delivered to Mr. Lowden for the signature of the executor and Mr. Jayne. Then, upon consideration, Mr. Lowden concluded that the executor had no power to make such a lease, and himself afterwards took out from the orphans' court letters of guardianship of the infant; and, without any formal lease being executed, he has, as such guardian, acquiesced in and approved the lease just referred to. One month's rent of the premises ($83) was paid by the executor to the complainant; and after that various sums were paid to her monthly, up to and including November, 1896, aggregating, with the first payment of $83, $318. For this sum the complainant receipted, with this clause added: "I also agree that if my dower interest should not amount to said sum of $318, or such sum and such other subsequent payments as may be made to me, that the excess over my dower interest, thus received shall be paid out of the legacy to me in the last will of said Lester Davis, deceased." The widow now claims by her bill that she is entitled to the whole of the rents of the store and dwelling until dower is actually admeasured and set off to her, basing her claim upon the second section of the dower act, which provides: "That until such dower be assigned to her, it shall be lawful for the widow to remain in, and to hold and enjoy the mansion house of her husband and the messuage or plantation thereto belonging, without being liable to pay any rent for the same." Revision, p. 320.

Three questions arise upon the case, and were discussed by counsel: First. Did the first floor and the stable and building in the rear, which were occupied by the firm of L. Davis & Co. for mercantile purposes, form a

part of the dwelling? Are they included in | of its import. The best writers, however, repthe language "mansion house of her husband," or in the language "messuage thereto belonging"? Second. If so, then was the husband in such possession of them that the widow could be said to "remain" in possession thereof, and thereby bring herself within the terms of the act? Third. What effect does her signature of the lease above recited have upon her right under the second section of the dower act above quoted?

In

The first question is not without difficulty. The word "messuage," as used in Magna Charta and all the older authorities, meant simply a mansion house. It has been extended It has been extended by later use to include other structures; but, so far as I am able to find, the structures which may be properly included within its meaning are such only as are useful in making the occupation of the mansion house itself more comfortable and beneficial. See Jac. Law Dict. and Bouv. Law Dict. tit "Messuage." the Encyclopedia Dictionary the definition is: "A dwelling house with the adjacent buildings and curtilage appropriated to the use of the household; a manor house." To the same effect is the Century Dictionary. The language of our statute is broader than that of Magna Charta, in that it gives the right to "remain in, hold and enjoy the mansion house of her husband, and the messuage or plantation thereto belonging." In the older cases it was held that under the term "messuage" a small quantity of land might be included. In our statute the word is used in the alternative, "messuage or plantation," indicating that the legislature had in mind a small piece of land, such as a garden or yard, rather than a building. In Indiana (Williamson v. Ash, 7 Ind. 495) it was held, in a case precisely like the one in hand, that the widow was not entitled to quarantine in a storeroom. The report states that Isaac Ash owned a building, erected and used in parts, for two purposes,-one part for a dwelling, and one for a mercantile storeroom. After his death his wife continued to occupy the dwelling house. The heirs took possession of and rented the storeroom. After a year or more the dwelling and storeroom were set off to her as dower. Then she sued Williamson, who had been the tenant of the heirs, to recover the rent of the storeroom from the time of her husband's death. The quarantine act in force in Indiana at that time was this: "Until such dower shall be assigned, it shall be lawful for her to remain and continue in the mansion house and messuage thereto belonging, without being chargeable to pay the heir any rent for the same." The court held that: "The right to occupy the dwelling did not extend to the storeroom. It was not appropriated to, nor in any way necessary for the use or convenience of, the dwelling house,"-citing Grimes v. Wilson, 4 Blackf. 331, where the court used this sensible language: "It is difficult to define with precision the signification of the legal term 'messuage.' Authors have differed in their understanding

resent it as synonymous with house, and as embracing within its meaning an orchard, garden, curtilage, adjoining buildings, and other appendages of a dwelling house." By this I understand is meant something which renders the occupation of the dwelling, as such, more comfortable and beneficial. This definition excludes a store and salesroom. The report of Williamson v. Ash does not state whether the storeroom in that case was under or adjoining the dwelling rooms, but I am unable to perceive that the relative location of the rooms under the same roof makes any difference, since it is well settled that there may be separate ownership as well as tenancy of different floors of the same building.

But I do not find it necessary to determine this question, as I conclude that the complainant must fail upon the second question, the resolution of which against her is fatal to her claim. The first floor was clearly in the possession of Mr. Davis and his partner, Jayne, as partners, and such possession was held by them, not as ordinary tenants in common, but as joint tenants, with right of survivorship in trust for the purposes of the partnership. So that when Mr. Davis died his partner had an actual right, as his survivor, to the possession of those premises for some considerable period; the only question is for how long. The case shows that there was no written lease between the parties, and the evidence does not disclose that there was any particular term fixed. There were written articles of partnership, which, however, were not produced. The presumption from the facts as shown would be that the term would continue at least during the term of the partnership. In the absence of the element of partnership, the presumption would be that the holding was from year to year, to be terminated on three months' notice. And it seems to me that this presumption is not necessarily overcome by the fact that the partnership was liable to be dissolved by the death of one partner, and, in fact, was so dissolved during the term. dissolution was only to the extent of preventing the surviving partner from making new contracts which should bind the firm. He still had the right, as surviving partner, to the possession of the partnership assets for the purpose of winding up the partnership affairs, and among those assets was the right of possession of this store; and it seems to me that, as a matter of necessity, that right of possession must continue long enough at least to enable him to wind up the business, he, of course, continuing to pay the rent. I find it quite impossible to hold that the heir at law had the right to the actual possession of the premises immediately upon the death of his father, since the right on the part of the surviving partner must be held to be exclusive of the right of the heir at law, and also of the widow. I am unable to see how the testator can be said to have had such a possession of the storeroom floor as that his

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