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for the condemnation of the claimant's property rights. Such proceedings, as has been stated, were instituted by the United States in one of the courts of Maryland, in which the property rights of the claimant were expressly recognized. But they were abandoned. One reason, perhaps, for such abandonment was that, in the judgment of the officers of the United States, a fair assessment of damages could not be had in the mode prescribed by the Maryland statute. Be this as it may, it is clear, from the record, that the government did not assert title in itself to this property, at the time it was taken. Having abandoned the proceedings of condemnation, the proper officers of the government, in conformity with the acts of congress, constructed the dam from the Maryland shore to Conn's island, the doing of which necessarily involved the occupation and use of the property, as contemplated in what was called the fourth plan for bringing water from the Great falls to Washington and Georgetown. In such a case, it is difficult to perceive why the legal obligation of the United States to pay for what was thus taken pursuant to an act of congress, is not quite as strong as it would have been had formal proceedings for condemnation been resorted to for that purpose. If the claimant makes no objection to the particular mode in which the property has been taken, but substantially waives it, by asserting, as is done in the petition in this case, that the government took the property for the public uses designated, we do not perceive that the court is under any duty to make the objection in order to relieve the United States from the obligation to make just compensation. In reference to the title which the government will acquire, as the result of this suit, there would seem to be no difficulty. The finding of the court is that the claimant exhibited to the arbitrators a valid title to the lands in question. It does not appear that the company has ever parted with that title; and the finding is that no title except that of the claimant is asserted. What has been said is sufficient to dispose of the case, and requires an affirmance of the judgment. It is so ordered.
(112 U. S. 600)
MATTHEWS v. WARNER and another.
(December 22, 1884.)
1. ACTION FOR WIFE'S BONDS HYPOTHECATED BY HUSBAND-COLLUSION-FRAUD. The keeping of his mother's railroad bonds by son under suspicious circumstances, which warrant the inference of fraudulent intent on the part of both and the father, will defeat the efforts of the wife to regain by action such bonds from a third party with whom they have been hypothecated by a brother of the husband who occupies an office with him and the son.
2. SAME-SOLICITOR SWEARING TO BILL-MAY BE SUSPICIOUS CIRCUMSTANCE-FAILURE OF COMPLAINANT TO TESTIFY.
The bill being sworn to by complainant's solicitor on his belief, and the name of such complainant being signed to the same by him, and her failure to appear and testify to the facts alleged in her bill, are suspicious circumstances to be taken with others to defeat her action when fraud is suspected.
Appeal from the Circuit Court of the United States for the District of Massachusetts.
W. A. Abbott, for appellant. C. R. Hoar and Jos. B. Warner, for appellees. MILLER, J. This is an appeal from the circuit court for the district of Massachusetts, dismissing the bill of appellant, who was plaintiff below. The bill alleges that the plaintiff is the owner of 150 bonds of $1,000 each of the Memphis & Little Rock Railroad Company, and 50 similar bonds of the South Carolina Central Railroad Company, which have wrongfully come to the possession of defendants; that these bonds are negotiable by delivery, and that defendants are about to sell them at public auction, or otherwise, and she prays an injunction to prevent this sale and for other equitable relief. Tendants deny any ownership or interest of plaintiff in the bonds, and allege
that they are holders of them for a valuable consideration, and set out the transaction by which they obtained the bonds. This answer raises several questions which we do not think necessary to consider, and a large volume of testimony is found in the case which, for the same reason, we do not propose to review here.
The defendants are trustees under an assignment made by Thomas Upham for the benefit of his creditors. There passed to them by the assignment a bond for $250,000, made by Edward Matthews, the husband of plaintiff, and a mortgage on valuable real estate in the city of New York, to secure it. These were made payable to Nathan Matthews, brother of Edward, and by him assigned to Upham as security for a loan or loans made by Upham to Nathan Matthews. It seems to be clear that this assignment was made by the consent of Edward, or by his directions. This was in May, 1875. Some time prior to March, 1877, Edward Matthews, who had become embarrassed, desired to take up this mortgage, and entered into negotiations for that purpose with defendants, who agreed to an exchange of the bond and mortgage for the railroad bonds which are the subject of this suit. They accordingly sent Joseph B. Warner, their legal adviser, from Boston, where they resided, with the bond and mortgage, and the exchange was made by him as their agent, receiving the bonds in question at Mr. Matthews' office in the city of New York. This exchange took place on the sixth day of March, 1877. It appears that the 150 Memphis & Little Rock Company bonds were on that day, and had been for some time previous, in possession of Morton, Bliss & Co., bankers, as collateral security for the debt of Edward Matthews, who had placed them there. From the very vague and unsatisfactory testimony of Mr. Brander Matthews, son of plaintiff, and of her husband, Edward Matthews, it appears that at some time prior to the date of this transaction, but whether a month or a year he cannot say, Brander Matthews went with his mother to the office of the Safe Deposit Company, and secured a box for his *mother's use, of which she took one key and he another. On this sixth day' of March, without consulting his mother, he went to this box and took out 200 bonds of the South Carolina Central Railroad Company, and, going from thence to the office of Morton, Bliss & Co., he exchanged 150 of these bonds for the Memphis & Little Rock Company's bonds, and brought them, with the remaining 50 bonds of the South Carolina Company, to his father's office, and in his presence delivered them to Mr. Warner. An instrument in writing was here drawn up, showing the terms of the exchange and the purpose for which the bonds were pledged. This instrument is signed Caleb H. Warner and Charles F. Smith, by Joseph B. Warner, their attorney; Nathan Matthews, by W. H. Williams, his attorney, and by Edward Matthews.
Mr. Brander Matthews testifies that he had no authority from his mother for the use he made of the bonds, nor does he believe she knew anything about it. Mr. Edward Matthews supports him in this. It is, however, ap parent that in regard to these bonds, and to others placed in the box and removed from it from time to time, that the mother was rarely, if ever, consulted. Mr. Edward Matthews testifies that these bonds had at one time been his bonds, and he says they became his wife's property by virtue of assignments which he had made of them to Watson Matthews, his brother, in trust for Mrs. Matthews. Two papers are produced which purport to assign to Watson Matthews the equity of redemption and right and interest of Edward Matthews to a large list of bonds and other securities held by parties to whom Edward Matthews had pledged them for his own debts. One of them is dated April 22, 1876, and the other May 13, 1876. There is no satisfactory evidence of the delivery of either of these papers to Mrs. Matthews or to Watson Matthews. Edward Matthews says they were placed with other papers in Mrs. Matthews' box in the safe deposit vault. There is no evidence that Mrs. Matthews ever had either of these papers, or any of the bonds described
in them, in her manual possession. No evidence that she ever went to the box or opened it herself to put anything in it or take anything*out. The instruments speak of the assignments as security for a debt owing by Edward Matthews to his wife. No evidence is given of the origin of this debt; nor that Mrs. Matthews ever had any separate estate of her own, or anything to loan her husband. They must have been married a long time, as Brander Matthews, the son, was over 23 years old at the time of these transactions.
It also appears that Watson Matthews was the brother of Edward Matthews, and both he and Brander Matthews occupied as offices the same rooms in which Edward Matthews did business. It is significant, also, that the bill in this case is sworn to by one of the solicitors on his behalf, and her name is signed by them and not by herself. The only act which she is ever said to have done or performed in person, asserting a claim to these bonds, is a notice to which her name is appended, to the defendants, some six months after the exchange of the bond and mortgage for the railroad bonds, in which she says they are her bonds, and forbids them to sell them. A witness, the clerk of Matthews, says the signature, he thinks, was written by Mr. Matthews; and it is admitted that the letter was dictated by him and written in his office. The plaintiff, who, if she had any just claim to these bonds, could best have explained how that claim originated, who could have told what money or property she loaned her husband, or how he became her debtor, is not sworn as a witness in the case. It looks very much to us as if the box at the safe deposit vault, with a key in the possession of the son, who occupied the same office with the father, and in the light of other evidence in the case, was a contrivance by which the husband could use the bonds as his own when he desired, and assert them to be the property of the wife when that was more desirable. We are of opinion that plaintiff never had any real ownership or actual control, or any lawful right, to the bonds in suit. The decree of the circuit court dismissing the bill is affirmed for this reason, without examining other grounds of defense to the suit.
(112 U. S. 696)
KNICKERBOCKER LIFE INS. Co. v. PENDLETON and others.1
(January 5, 1885.)
1. LIFE INSURANCE-PAYMENT OF PREMIUMS-FOREIGN Bill.
Policy of life insurance being conditioned to be void if the annual premium, or any obligation given in payment thereof, should not be paid at maturity; and the annual premium being paid by a foreign bill drawn by the party insured, with a condition that if not paid at maturity the policy should be void, held, that the forfeiture was incurred by non-payment of the bill, on presentment, at maturity, without protest for non-payment, although protest might be necessary to fix the liabil ity of the drawer. Semble, if it had been the bill of a stranger, protest would have been necessary for the forfeiture also.
2. SAME-PRESENTMENT FOR PAYMENT.
Presentment and non-acceptance of the bill before maturity, without protest, did not dispense with presentment for payment, in order to produce the forfeiture. 8. SAME-WANT OF FUNDS IN HANDS OF DRAWEE.
Want of funds in the hands of the drawee was no excuse for not presenting the bill, if the drawer had reasonable expectation to believe that it would be accepted and paid.
4. SAME-PRELIMINARY PROOF OF DEATH.
Preliminary proof of death not required, if the insurer, on being notified thereof. denies his liability altogether, and declares that the insurance will not be paid.
In error to the Circuit Court of the United States for the Western District of Tennessee.
'S. C. 5 Fed. Rep. 238, and 7 Fed. Rep. 169.
Leslie W. Russell, for plaintiff in error. D. H. Poston and W. K. Poston, for defendant in error.
BRADLEY, J. This action was brought in the First circuit court of Shelby county, Tennessee, by the defendants in error, Pleasant H. Pendleton and others, against the plaintiff in error, the Knickerbocker Life Insurance Company, to recover the amount of a policy of life insurance on the life of Samuel H. Pendleton. After declaration filed, the case was removed into the circuit court of the United States, and the defendant then pleaded no indebtedness; failure to pay the stipulated annual premium; failure to pay a draft given for premium; and failure to give notice and proof of death. A replication put the cause at issue, and it was tried at Memphis in November term, 1880, and a verdict rendered for the plaintiff. Judgment being entered upon this verdict, the case is brought here by writ of error. The matters for our consideration are exhibited in a bill of exceptions taken at the trial, from which it appears that the plaintiff introduced in evidence the policy sued on, dated July 14, 1870, issued for the benefit of the plaintiffs, as the children of Samuel H. Pendleton, for the sum of $10,000 on his life, in consideration of $364.60 then paid, and of the annual premium of a like sum to be paid on or before the fourteenth day of July in every year during the continuance of the policy. The company agreed to pay the sum insured within three months after due notice and satisfactory proof of the death of the person whose life was insured; but the policy contained the following condition, to-wit: "The omission to pay the said annual premium on or before twelve o'clock, noon, on the day or days above designated for the payment thereof, or failure to pay at maturity any note, obligation, or indebtedness, (other than the annual credit or loan,) for premium or interest hereon, shall then and thereafter cause this policy to be void, without notice to any party or parties interested herein."
The plaintiffs next introduced in evidence the renewal receipt, in the words and figures following, viz.:
Office of the Knickerbocker Life Insurance
"Mississippi Valley Branch Company at Memphis, Tenn. newal No. 94,597.
"NEW YORK, July 14, 1871.
"Received of Pleasant H. Pendleton, etc., three hundred & sixty-four 65100 dollars, being the premium on policy No. 2,346, which is hereby continued in force until the fourteenth day of July, 1872, at noon.
"Not valid until countersigned by the managers of the Mississippi Valley Branch office at Memphis, Tenn.
"ERASTUS LYMAN, President.
"GEO. F. GRIFFIN, Secretary.
"Countersigned at Memphis this day of GREENE & LUCAS, Managers.'
The plaintiff then introduced evidence tending to show that Samuel H. Pendleton died at his home, near Auburn, Arkansas, on the twenty-sixth day of March, 1872; that his children, the plaintiffs, were then under age; and that their uncles, A. O. Douglass and W. F. Douglass, on their behalf, wrote from Auburn to Greene & Lucas, the agents of the defendants at Memphis, the former on the twenty-ninth of March, and the latter on the second of April, 1872, giving them notice of Pendleton's death. A. O. Douglass in his letter requested Greene & Lucas to advise him what steps were necessary to be taken in the matter of the policy, and Greene & Lucas at once answered, by letter dated April 2d, that the policy became forfeited on the fourteenth
of October, 1871, by failure to pay the premium, explaining that when the premium became due they took the draft of Dr. S. H. Pendleton on Moses Greenwood & Son, of New Orleans, at three months, in lieu of the cash, conditioned that failure to pay the draft would forfeit the policy, and that Greenwood & Son refused to accept the draft, and refused to pay it at maturity. The correspondence was continued by an additional letter from W. F. Douglass to the agents, dated April 9th, and a reply to the same, by the latter, dated April 15, 1872, repeating their position that the policy was forfeited and void, and that there was no legal claim to the insurance.
The defendants below, after an unsuccessful motion for a nonsuit, put in evidence the following draft, given by Samuel H. Pendleton in part payment of the premium which became due July 14, 1871:
AUBURN, ARK., July 14, 1871.
"Three months after date, without grace, pay to the order of the Knickerbocker Life Insurance Co. three hundred and twenty-five dollars, value received, for premium on policy No. 2,346, which policy shall become void if this draft is not paid at maturity.
"S. H. PENDLETON.
"To Moses Greenwood & Son, New Orleans, La."
Evidence was then introduced by the defendants tending to show that the draft was transmitted by the agents of the company, through the Union & Planters' Bank, of Memphis, to the Louisiana National Bank, of New Orleans, to be presented for acceptance, and was received by the latter bank, and presented on the twenty-ninth of September, 1871; that acceptance was refused by Moses Greenwood & Son, the drawees, assigning as the reason of their refusal that they had no advice; that no protest of the draft for non-acceptance was made, because it was marked “no protest;” but that it was returned, on the thirtieth of September, to the Union & Planters' Bank, of Memphis; that it was again transmitted to the Louisiana National Bank, on the fifth of October, 1871, for collection, but was not paid when it became due, and for the same reason as before no protest for non-payment was made, and it was returned to the Union & Planters' Bank on the seventeenth of November, 1871. No direct evidence of presentment to the drawees for payment was given; but the cashier of the Louisiana National Bank testified that, according to their rules and custom of doing business, it must have been presented for payment when due. Evidence was further introduced tending to show that, on or about the third of October, 1871, when the draft was first returned from New Orleans, the agents, Greene & Lucas, informed S. H. Pendleton, by letter, of its nonacceptance; and again, on or about the twentieth of November, 1871, they informed him in the same way of its non-payment; that in the latter part of November, or early in December, 1871, he (Pendleton) called on said agents, and expressed surprise that Greenwood & Co. did not pay his draft, but said that they were then prepared to pay it; that the said agents informed him that, as the policy was lapsed by reason of the non-payment of the draft, it would be necessary, in order to reopen the same, that he should be re-examined; and that he promised to call again, but never did; also, that the dealings of the insurance company in reference to the issue of the policy and the payments of premiums thereon were solely with the said S. H. Pendleton.
Moses Greenwood, of the firm of Moses Greenwood & Son, a witness on the part of the plaintiffs, testified to the effect that his firm were cotton factors and commission merchants, and acted as such for S. H. Pendleton, in 1869, 1870, and 1871, furnishing him supplies for his plantation, and selling his cotton crops; and kept a running account with him; and were accustomed to accept and pay his drafts even when he had no money or property in their bands, so that he had good reason to believe that the draft in question would