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*Lewis' Ex'ors v. Overby's Adm'or.

ab inconvenienti may sometimes throw light | 627
upon the construction of ambiguous or
doubtful words; but where, as here, the
language of the law makes it plain they are
out of place. Inconveniences in practice
will result, whichever way the question shall
be decided. The power to remedy them

is in the legislature, and not in the 625 *courts. Even as the law now stands, the party injured by the omission of the clerk is not without remedy, for he has his action against the clerk."

All that is here said is equally applicable to the case before us. Indeed it would be difficult to find an authority more directly in point. JUDGE SMITH further states, that the statutes of Vermont and Missouri are the same in many respects as those of New York, and he relies upon Curtis v. Lyman, 24 Vermont R. 338, and Bishop v. Schneider, 46 Missouri R. 472, in which the same questions arose, and the same doctrine was affirmed by a unanimous court. See also the recent case of Chatham v. Bradford, 50 Georgia R. 327, upon the construction of a statute similar in many of its provisions to the New York statute. These cases substantially assert that the index is no part of the record, but a means of easy reference to the record. If the clerk fails to make the index, he injures those who desire to make the search. The clerk's duty is therefore to the searcher and to the public, and not to the holder of the deed. When the latter has placed his deed upon the record book he has done all the law requires him to do. Any one who will take the trouble can examine this record. The time and labor expended in making this examination is merely a question of degree. If the party pursuing the search is content with looking at the index, without an examination of the record, and he is thereby misled, his remedy is against the clerk, whose duty it is to prepare the index for the benefit of the searcher, and not of the holder of the deed. These views are not only in conformity with the provisions of our statute, upon a fair and reasonable interpretation, but they are intrinsically just and sensible in themselves. All that is said with reference to the holder of a deed 626 admitted to *record, but not indexed, is equally applicable to a judgment creditor, whose judgment is docketed and not indexed. Upon the whole, we are of opinion there is no error in the decree of the chancery court, and the same must be affirmed. Before concluding this opinion, it is proper to state that the legislature has recently amended the statute on this subject. And it is now provided, every judgment shall so soon as it is docketed be indexed by the clerk in the name of each defendant thereon, and unless so indexed it shall not be regarded as docketed. With the wisdom or propriety of this amendment the courts have no concern. Being prospective necessarily in its operation, it can have no application to the present case.

MONCURE, P., and CHRISTIAN and BURKS, Js., concurred in the opinion of STAPLES, J. DECREE AFFIRMED.

March Term, 1877, Richmond. Sealed Instruments.*-A paper which in the body of it says, "as witness my hand and seal," has the word "seal" affixed to the signature of the maker. It is a sealed instrument within the meaning of the statute. Code of 1849. ch. 143, s. 2, p. 580.

This was an action of debt in the circuit court of Mecklenburg county, brought by Robert Y. Overby's executors, and afterwards revived in the name of his administrator de bonis non, &c., against the executors of John Lewis. The plaintiffs declared upon a writing obligatory for $1,800, executed by John Lewis and James E. Haskins. The defendants filed the pleas of "payment," and "non est factum."

The paper declared on was as follows:

Dolls. $1800. On demand with interest from the first of April next, we promise and bind ourselves, heirs, &c., to pay to Rob't Y. Overby eighteen hundred dollars, for value received. As witness our hands and seals this 24th day of March, 1853.

JAS. E. HASKINS, Seal.
JNO. LEWIS,

Seal.

On the trial of the cause the defendants objected to the introduction of this paper, because it had no scrolls by way of seals affixed opposite to the signatures with

which the paper writing is subscribed; 628 and *therefore was not a writing obligatory within the meaning of the law of Virginia. But the court overruled the objection, and admitted the paper as evidence; and the defendants excepted. There was a verdict and judgment for the plaintiff; and thereupon the defendant applied to one of the judges of this court for a supersedeas; which was awarded.

Jones & Bouldin, for the appellants.
Jno. A. & Alex. Coke, for the appellees.
MONCURE, P., delivered the opinion of the
court.

The court is of opinion that the word "seal" has the same force and effect as a "scroll" in the true intent and meaning of the Code, which declares, that "any writing to which the person making it shall affix a scroll by way of seal, shall be of the same force as if it were actually sealed." Code of 1849, ch. 143, § 2. p. 580. And the persons making the writing on which this action is founded, having severally annexed to their names subscribed to the said writing the said word "seal;" and having clearly indicated in the body of the said writing, their intention to make it a sealed instrument, by using therein the words: "as witness our hands and seals." &c.; the court is of opinion that the said writing is a sealed instrument accordingly. See 2 Rob. Pract., ch. 1, pp. 2-8, and cases therein cited.

Therefore it is considered by the court *Sealed Instruments.-See Dinwiddie County v. Stuart, Buchanan & Co., 28 Gratt. 526, and note; Bartons' Law Pr. (2nd Ed.) 95.

629

that there is no error in the said judgment; | 8. Foreign Insurance Companies—Right to that the same be affirmed; and that the Plead Statute of Limitations.-An insurance plaintiffs in error, John T. Lewis and Rich- company chartered by another state, but doing busiard B. Lewis, executors of John Lewis, out ness in this state in compliance with the statutes of of the estate of their said testator in 1855-'6, is to be considered, for the purpose of being their hands to be administered, *do sued, as domiciled in this state, and is entitled to pay to John A. Coke administrator de rely on the statute of limitations just as if it were a bonis non with the will annexed of Robert Y. company which had been chartered by the legis lature of this state. Overby, dec'd, damages according to law and his costs by him about his defence in this court expended.

Which is ordered to be certified to the circuit court of Mecklenburg.

JUDGMENT AFFIRMED.

630

*Connecticut Mut. Life Ins. Co. v.
Duerson's Ex'or.

July Term, 1877, Wythe ville.

1. Contracts of Insurance-Effect of War.
-Contracts of insurance entered into before the late
war, between parties afterwards separated in domicil
by the belligerent lines, were not abrogated, but
only suspended, by the war. Acc. Ins. Co. v.
Hendren, 24 Gratt. 546, and cases there cited.
2. Same-Same-Extent of Suspension. This
suspension extends to the stipulation requiring pay-
ment of premiums at dates falling within the period
of such separation.

3. Same-Same-Tender of Premium.-Nor
in such case is it material whether tender of such
payment was made at the day or not, even though
the insurer's agent, resident in the state of the
domicil of the insured prior to the war, continued to
reside there on the same side with the insured whilst
the insurer and insured were so separated.
4. Same-Same-Same-Acts of Company's
Agent.-If such tender would in any case be ma-
terial, it will at any rate not be when before the
premium in question became due such agent had
publicly proclaimed his purpose not to receive any
more premiums, which declaration was propably
made known to the insured and was the cause of
the failure to tender, and especially when insurer
after the war refused to ratify the act of said agent
in receiving payment of a premium from another
person as much as a month before the premium in
question was due.

5. Same-Same—Same—Time for Making.
In such case, however, it is the duty of the insured
to tender payment within a reasonable time after
the war, if living; and his failure so to do will
occasion a forfeiture of the policy.
6. Same Same-Same-Duty of Personal
Representative. But in case of the death of
the insured pending the war, his personal repre-
sentative would be under no obligation to make such
a tender, for then there would be in the hands of
the insurer a fund of the insured out of which he
could deduct the unpaid premium. Nothing more
would then be necessary on the part of the insured
than that the insurer should within a reasonable
time from the ending of the war be informed of
such death and of its date.

631 7. Same-Same-Sufficiency of Notice
of Death. Such information will be suffi-
cient though unaccompanied by any formal demand
of payment or assertion of right to it.

9. Statute of Limitations-Suspension dur-
ing War-Validity of Acts.-The several acts
of the government of Virginia during the war, sus-
pending the statutes of limitations, were valid to
prevent the running of said statutes to 3d March
1866. Acc. Johnston v. Gill, 27 Gratt. 587. And the
time from 2d March 1866 to 1s; January 1869 is to
be left out of the computation under said statutes
by virtue of the seventh section of the act of March
2d, 1866, commonly known as the stay law. Acc.
Danville Bank v. Waddill, 27 Gratt. 448.
10. Foreign Corporations-Revocation of
Agency-Service of Process.-Though such
company had after the war expressly revoked the
powers of the resident agent it had before the war,
and had never afterwards, appointed another in his
place, service of process on such agent will never-
theless be effectual under the statutes in that behalf
to give jurisdiction of an action against such com-

pany.

11. Same-Acceptance of Conditions of Doing Business in State. The provisions of said statutes of 1855-'6 were amendatory of the previous law, and extended as well to policies previously issued as to policies thereafter issued; and a foreign compary doing business in the state under the same at the time said amendments were enacted, and continuing to do business afterwards in compliance with all said statutes, must be taken to have accepted said provisions and to be bound by them.

This case was heard at Richmond, but was decided at Wytheville. It was an action of assumpsit in the circuit court of Spottsylvania county, brought in December 1873, by William R. Duerson, executor of Robert C. Duerson, deceased, against the Connecticut Mutual life insurance company, to recover the amount of two policies of insurance upon the life of the said Robert Duerson issued by the said company. The process was served on A. A. Little, who had been

the general agent of the company. 632 *Upon the calling of the cause in

September 1874, the defendant, by counsel, moved the court to quash the process in the cause, on the ground that the defendant had, in 1861, revoked the agency of A. A. Little in Virginia, and declined to reinstate it after the war, on account of the change in the legislation in Virginia by the act of February 1866, affecting foreign insurance companies.

It appeared from the evidence, that A. A. Little was an agent of the company from 1850 to some time in 1861, when the war breaking out, communication was cut off with Hartford, Connecticut, the home of said company, and he ceased to act as agent; and his agency was formally revoked by the comSee McLean v. Piedmont & Arlington Life Ins. Co., pany in March 1866; that he had done no act 29 Gratt. 361, and note. as agent of said company since; and no

agent of the company had since been appointed in Virginia.

of the annual premiums named, to be paid on or before the 9th and 10th days of June The company further insisted in behalf of respectively in every year during the consaid motion, that these contracts of insur- tinuance of said policies, assure the life of said ance were made in 1850 and 1851, before the Duerson in the said respective amounts of act of 1855-'56, which first required foreign | $2,000 and $1,300 "for the term of the whole insurance companies in Virginia to appoint continuance of his life." And said company an attorney to accept service of process in promise and agree to pay said sums within any suit against said company; and said act ninety days after due notice and proof of was therefore no part of the contract of in- the death of said Duerson, deducting theresurance in these cases, and the company from all notes taken for premiums unpaid could not be required to retain an attorney at that date. There are numerous provisos in Virginia to accept service of process in and conditions, as usual, contained in said this case. And second, that the act of 1855-'56 policies, none of which are material to this had been repealed by the act of February case, or necessary to be adverted to, ex3rd, 1866, inaugurating an entirely new pol- cept the clause which provides, that in case icy, and requiring new regulations, licenses the assured shall not pay the said annual and deposits of foreign insurance companies premiums on or before the several days doing business in Virginia; and the defend- therein before mentioned for payment ant declining to continue its business in thereof, then and in every such case the Virginia, because of said legislation, has said company shall not be liable to the paynow no agent in Virginia, and no party ment of the sum insured, or any part thereupon whom process against said company of, and the policies shall cease and deterin this case can be legally served. mine, and all interest shall be forfeited. 633 *But it was shewn in evidence, that in April 1856, the company executed a power of attorney, appointing Little their agent in Virginia, to accept service of all lawful processes against the company in the state of Virginia, and to cause an appearance to be entered in any action, in like manner as if the company had existed and been duly served with process within said state. And this power of attorney was filed in the office of the auditor of the state. It appeared further, that Little made his returns to the auditor, and paid the tax on the premiums received by him from May 1st, 1859, to May 1st. 1861.

The court overruled the motion to quash the process; and the defendant excepted. The cause came on for trial on the 12th of December 1874, upon the general issue, with leave to the defendants to prove anything under that issue that they might prove under any special pleas; and when all the testimony had been introduced before the jury, the defendant demurred to the evidence, and the plaintiff joined in the demurrer. There was a verdict for the plaintiff for $3,500, with interest from, &c., subject to the demurrer; and the court holding that the evidence was sufficient to sustain the plaintiff's action, rendered a judgment upon the verdict in his favor for the amount. And thereupon the defendant applied to a judge of this court for a writ of error and supersedeas; which was allowed.

The premiums upon these policies were regularly and promptly paid or settled for by Duerson with said Little up to and including the premiums falling due on the 9th and 10th days of June respectively, 1860, by which said policies were continued in force for the years following said dates. Before the next premiums fell due, to wit: the 9th and 10th days of June 1861, the great war between the Confederate States, of which Virginia was one, and the United States, of which Connecticut was one, had intervened. All intercourse with the north, the home 635 of the company, had ceased, and the agent who, as well as the insured, resided in Fredericksburg, had publicly and freely proclaimed in the town-there being a number of policy holders therein-before said dates, that he would not receive any premiums from any policy holders. And after the war the company refused to allow a credit for the amount of a premium which had been paid to Little on the 4th of May 1861 to another person holding a policy of the company, which he wished to have reinstated.

ser

Little, who was examined as a witness by the defendant, states that Duerson at this time resided in Fredericksburg, was geant of the corporation; he was a prompt business man, prompt in paying his premiums, had abundant means, and said agent "supposes Duerson would have paid his premiums during the war had not he heard that said Little would not receive them, as R. C. Duerson, of Spotsylvania county, he was prompt and punctual, and had paid Virginia, effected with the said company, a the others promptly," though said Little corporation chartered by the state of Con- cannot recollect whether he had any connecticut, and having their home office inversation with Duerson on the subject of Hartford, through their agent in and for Virginia, A. A. Little, of Fredericksburg, two policies of insurance upon his life. dated respectively 10th June 1850, and 634 9th June 1851, one for $2,000. *and the other for $1,500, and numbered 9,990 and 14,678 respectively.

By these policies, the company in consideration of the payment of the respective sums named therein by said Duerson, and

the premiums and policies after the war begun. But said Little would not say he had not conversed with said Duerson during this time, and that the premiums were not tendered. And "it was generally known in town that Mr. Little was not receiving any premiums?"

Duerson died on the 17th day of March, 1863, in Fredericksburg, Va., of pneumonia his disease not having been induced by any military service, as he never was en

gaged as either soldier or sailor during the late war, and he died a natural death.

At the time of his death there were remaining unpaid the premiums for 1861 and 1862, and four notes given for premiums, &c. In August, 1863, Mrs. Duerson qualified as executrix of said R. C. Duerson. 636 She having died in June, *1865, and the executor named in the will being under age, J. C. Cammack qualified as administrator d. b. n. c. t. a., on the 12th October, 1865. On the 31st January, 1866, Cammack wrote to the company, informing them of the death of R. C. Duerson during the war, from natural causes, and stating that Duerson "was prevented from making further payments by the then existing war."

He says: If Duerson could have made one more payment his family, now in very reduced circumstances, would have been en-, titled to the full amount of the premiums. I do not know what has been your custom in such cases, but having heard that you were very liberal in the renewal of policies that had expired under similar circumstances, I thought it probable you might pay something on account of these policies. I administered upon Duerson's estate, besides which he married my sister.

I am, very respect'y,

JOHN C. CAM MACK.

To this letter the company reply:

HARTFORD, June 15, 1866.

er, and calling upon them for settlement. To this letter no reply was made.

After waiting for some time to hear from the company, the executor of Duerson placed the matter in the hands of attorneys to procure a settlement by suit or otherwise, and there was some correspondence between the attorneys and the company. In the letter of the assistant secretary of the company, under date of August 8th, 1873, directed to the attorney of Duerson's executor, he says: "We have your favor of the 5th ultimo, relating to policies Nos. 9,990 and 14,678, on the life of R. C. Duerson, forfeited for non-payment of premiums in 1861. For reasons satisfactory to us and, as we believe, con638 clusive in law, we recognize *no claim on these forfeited policies and acknowledge no liability by virtue thereof." William A. Little, for the appellant. Marye & Fitzhugh, J. T. Goolrick and J. G. Mason, for the appellee.

ANDERSON, J., delivered the opinion of the court.

It must be regarded as settled law, at least in Virginia, that contracts of life insurance entered into before the late war, by parties who were separated by the belligerent lines, are not abrogated, but only suspended, by the war. The New York Life Ins. Co. v. Hendren, 24 Gratt. 536; citing Manhattan Life Ins. Co. v. Warwick, 20 Gratt. 614; Mutual Benefit Life Ins. Co. v. Atwood's adm'x, 24 Gratt. 497; and New York Life Ins. Co. v. White-special Journal for December 1873, p. 917. These court of appeals of Virginia-Insurance Law decisions of the supreme courts of the states Virginia decisions are in accord with the of Kentucky, New York, New Jersey and Mississippi, and the Federal circuit courts for the southern district of New York, J. Blatchford, and for the eastern district of Virginia, J. Bond.

Jno. C. Cammack, Esq., Louisa C. H. Va., Dear Sir-An answer to your letter of January 31st, 1866, has been delayed by the great demands upon my time. It has not been our custom, nor is it usual with other companies, to give any consideration in the case of the decease of persons that have allowed their policies to lapse. This being a mutual company, the right of each member to its benefits is based upon the fulfillment of his or her contract. The case you state policies of insurance was issued by the In the case under judgment one of the is a somewhat peculiar one, and is per-plaintiff in error on the 10th day of June 637 haps entitled to more *consideration 1850, for the insurance of the life of Robert C. Duerson, of Spotsylvania county, in the state of Virginia, in the amount of $2,000, his life, in consideration of the sum of $70.20 to the said company in hand paid by the said Robert C. Duerson, and of the annual

than most cases, where whole or partial payment is desired after the forfeiture of the policy and the death of the insured: but the question will arise, if payment is made in this case, why not pay upon policies that lapsed in 1860, and if payment is made upon policies that lapsed in 1860, why not upon policies that lapsed in 1855, and so on. The practice once commenced, there is no point at which to stop. We are compelled, for the reasons stated above, to decline making partial payments upon policies Nos. 9,990 and 14,678.

Very respectfully yours,
GUY R. PHELPS, Pres't,

Per. Howard. Cammack having died, and the executor named in the will, said W. R. Duerson, son of the assured, having come of age, he qualified as executor on the 12th June, 1873. And on the 1st July. 1873, he wrote to the company, reminding them of Cammack's previous application, and the death of his fath

for the term of the whole continuance of

premium of $70.20 to be paid on the 639 10th of June in every year during the continuance of the policy. The other policy, which is also an insurance for the term of the whole continuance of his life, is dated June 9th, 1851, and is for $1,500, in consideration of $54.45 in hand paid and of the annual premium of same amount to be paid on the 9th of June of every year during the continuance of the policy.

The plaintiff in error was an incorporated company of the state of Connecticut. and had an agent. A. Alexander Little, at Fredericksburg, Virginia. The testator of the defendant in error, R. C. Duerson, was a resident citizen of Virginia. The premiums on both policies were regularly and

punctually paid to the agent, in the mode prescribed by the policies, by the insured, in fulfillment of his contracts up to the 9th and 10th of June 1861. At those dates the next premiums were due. They were not paid. The late war between the states, at those dates and prior thereto, was flagrant, and separated the home office and domicil of the company from its agent at Fredericksburg, and from the insured, R. C. Duerson, by the belligerent lines. The contract was thereby suspended, the agent of the company having resolved to receive no further premiums after the preceding 4th day of May, which he made known to the public. There is no direct proof that the premiums then due were tendered by Duerson to the agent. I think the presumptions is they were tendered; or, if not tendered, it was because Duerson knew they would not be received, as the agent had stated publicly he would receive no more premiums; and he now testifies that if they had been tendered he would not have received them.

the personal representative of the insured to make a tender of the unpaid premiums after the termination of the war. The insurer had in his own hands money due from him to the assured, out of which he was entitled to retain the unpaid premiums, and a tender of them by the personal representative would have been unnecessary if not improper. But the insurer should have been informed in a reasonable time after the war ended of the death of the insured, that he might know what his liabilities were. The non-payment of premiums pending the war, and by reason of its existence, were facts within his knowledge, and need not have been communicated to him by the personal representative, because not necessary to inform him of his liability or its extent.

In this case the insured died March 17, 1863, pendente bello. His wife qualified as his executrix, and died in June 1865, soon after the termination of the war. Letters of administration d. b. n., c. t. a., were granted to her brother, J. C. Cammack, on the 12th of October following; and he wrote to the secretary of the company in January following, informing him of the death of R. C. Duerson from disease. He also informed him of the date of his death, and of whatever it was necessary for the company to learn from him to form a conclusion as to its liability. I do not regard this letter as conceding that there was no legal liability on the company to pay the policy as contended for by its counsel. On the contrary, it seems to me that, according to its natural import, the writer was of opinion that the assured had a claim upon the company, but to what extent, or whether it could be legally enforced or not, he was not informed, and wished to have the views of

the company with regard to it. Rely642 ing upon what he had heard as to its

But I do not think it material whether they were tendered or not, inasmuch as the war suspended the contract, and if they had been tendered they would 640 *not have been received. In the Manhattan Life Ins. Co. v. Warwick, supra, it is true we held that a payment tendered to the agent in July 1861, and received by him, was valid and binding on the company, and that the insured should be credited with it, although the company never received it. But in that case it was shown that the agent had received it in compliance with express instructions from the company, which was therefore charged with it. But in this case there is no special authority given to the agent by the company to receive any premiums during the war, and after the war it refused to ratify his act in receiving payment of a premium liability in other cases, he hoped it from Gordon on the 4th of May 1861. If it would come to just conclusions. I do not had been competent for the agent to receive think it can be regarded as a surrender in premiums without special authority, he re- any manner of any just or legal claim, solved not to receive them, and it would not be which, as the personal representative of R. right to hold the assured to a forfeiture of his C. Duerson, he had upon the company, policies in this case for not tendering them, in though it is not a positive assertion of any asmuch as if they had been tendered, the agent legal claim. The company replied through declares they would not have been received, its president, after a delay of some five and if they had been tendered and received months, declining to pay anything, and for its the company would have refused to ratify it, conclusion assigns reasons which absolutely igas is inferrable from the fact, that they dis-nore the only fact, the existence of the war, claimed the authority of their said agent in another case to receive payment of a premium, even at an earlier stage of the war, and refused to ratify it.

But the contract being suspended by the war, all acts which were to be done in its execution were suspended; and the stipulations that the insured should pay the premiums of the 9th and 10th of June 1861, as the conditions of the policies, were suspended.

But this being so, it was obligatory on the insured, if living, to have tendered payment in a reasonable time after the termination of the war. But if the insured had not survived the war, but had died pendente bello, the case, it seems to me, is different, and the 641 assured *is not liable to a forfeiture of the policy by reason of the failure of

which might relieve the insured from a forfeiture on account of the non-payment of premiums, but puts its refusal to pay anything upon the ground of the non-payment of premiums, and upon that ground alone. No objection is made upon the ground of the delay in communicating the death of the insured, or for the want of a more formal notice of his death, or for the non-compliance with any formal requirement of the policies, but only on the ground of the non-payment of premiums, which may therefore be regarded as a waiver of such requirements if not strictly observed. It does not appear that Cammack made any response to the said letter.

On the 12th of June 1873. William R. Duerson, son of decedent, qualified as his executor, and on the 1st July following he wrote

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