least, as between these parties--until the transaction has been completed. While the note and mortgage were signed, and the mortgage filed for record, they were not delivered in exchange for money; and until that time there was no liability against Parks and wife, nor any lien against their property. The note is said to be an evidence of debt, and the mortgage given in security an incident of the same; but there was no debt until the money was obtained, and the mortgage had no legal inception, between mortgagors and the mortgagee, until it had been delivered as security for money actually loaned by the mortgagee. The lapse of a few hours or a few days between the execution of the note and mortgage is immaterial, providing that their execution was with reference to each other, and as a part of a single negotiation or transaction. If within a few minutes after the note and mortgage were executed, but before the loan was completed, it had been ascertained that a word used in the note was incorrectly spelled, and the note was therefore torn up, and another substituted, which, except for the correction, was identical in every particular with the first, would it be contended that because of the substitution another mortgage must be executed? It cannot be said that the lien was extinguished by the destruction of the first note, or revived by the execution of the second. The mortgage, as we have seen, did not amount to a lien until the loan was completed by the payment of the money and the delivery of both note and mortgage. The mortgage given to secure a loan of $1,000. It was the same loan which was in the minds of all the parties throughout the negotiations. The substitution of one note for another did not change the character of the proposed loan, nor affect the relations of the parties. In the second note that was negotiated, there was an express declaration that it was secured by the mortgage, duly recorded, so that there was no misapprehension. Nor was there any prejudice by reason of the delay of 20 days in completing the loan and in closing the transaction. The judgment of the district court will be affirmed. All the justices concurring.

(54 Kan. 645)

was

WEYERHAEUSER et al. v. FRAIM et al. (Supreme Court of Kansas. Feb. 9, 1895.) MECHANIC'S LIEN-FILING STATEMENT OF SUB

CONTRACTOR.

A subcontractor, who furnished materials under contract with an original contractor, who contracted with the owner of city lots for the partial completion of a building thereon, had 60 days after the completion of the building in which to file his statement for a lien under chapter 141 of the Laws of 1872.

(Syllabus by the Court.)

Error from district court, Reno county; L. Houk, Judge.

Action by I. P. Weyerhaeuser and others, under the firm name of F. McCullam & Co., against Archie Fraim and others, to establish a mechanic's lien for labor and materials furnished. From a judgment against defendants for the amount of the claim, but denying the lien, plaintiffs bring error. Modified.

I. P. Weyerhaeuser and others, under the firm name of F. McCullam & Co., brought suit in the district court of Reno county against Archie Fraim, George A. Woodard et al., alleging in their petition that the defendant Archie Fraim entered into a contract with defendant George A. Woodard to furnish certain materials and perform certain labor in the erection of a three-story building on certain lots in Hutchinson belonging to said Woodard, and that the plaintiffs under a subcontract with said Fraim furnished lumber and other materials for said building, and claiming a lien for the balance due. The Halstead Lumber Company, which was made a party defendant, answered, also claiming a lien on the same property for building material furnished by them for the same building under a subcontract with said Fraim. The case was tried by the court, and the following special findings of fact were made:

(1) That on the day of August, 1887, the defendant George A. Woodard, who was then, and still is, the owner of lots Nos. 1, 3, and 5, on First avenue east in the city of Hutchinson, in the county of Reno, in the state of Kansas, entered into a written contract with the defendant Archie Fraim, whereby it was agreed that said Fraim should do all the carpenter work, and furnish all the lumber and materials for the same, for the erection of a three-story brick building on the above-described premises, and said Woodard was to pay said Fraim for said work and materials the sum of $8.211.30. (2) That on the 10th day of September, 1887, the plaintiff made a verbal contract to furnish the lumber and materials required by said Fraim to comply with his said contract with said Woodard as aforesaid, and under said contract did furnish the materials set forth in plaintiffs' petition, and said materials were incorporated into said building on said premises, and that there remains due and unpaid to plaintiffs a balance for said materials in the sum of $2.174.89 debt, and interest $271.86,-in the total sum of $2,446.75,-from the said Archie Fraim to plaintiffs herein. (3) That the said Archie Fraim completed his said contract on the 20th day of April, 1888. (4) That the last work was done on said building on the 25th day of June, 1888, which was a job of painting, and that said building was not entirely completed until said 25th day of June, 1888. (5) That on the 23d day of August, 1888, the plaintiffs filed their lien statement, duly verified, in the office of the clerk of the district court of said county of Reno, and on said day delivered a

copy thereof to the defendant George A. Woodard.

(2) That on the 8th day of February, 1888, the defendant Halstead Lumber Co., a corporation, entered into a contract with said Archie Fraim, whereby it was contracted and agreed that said Halstead Lumber Co. should furnish certain material to be used in the construction of said building; that said materials set forth in said defendants' cross petition were used and incorporated into said building; and that there is due and owing from the said Archie Fraim to said Halstead Lumber Co. for said materials the sum of $169 debt, and $20.25 interest, making the total sum of $189.25.

(3) That on the 5th day of July, 1888, the defendant Halstead Lumber Co. filed its lien statement in due' form, duly verified, in the office of the district court of said county of Reno, and on said day delivered a copy thereof to the defendant George A. Woodard.

As conclusions of law the court found that the plaintiffs were entitled to a judgment against Fraim for $2,446.75 and costs, and that the Halstead Lumber Company should recover judgment against Fraim for $189.25 and costs, but denied them a lien on the property.

William Carey, for plaintiffs in error. F. L. Martin, for defendants in error.

ALLEN, J. (after stating the facts). The sole question presented by the record in this case is whether the plaintiffs in error, who were subcontractors under Archie Fraim, who had a contract to perform the carpenter work and furnish lumber and materials for the erection of a three-story brick building on lots belonging to the defendant Woodard, having furnished lumber and materials under such subcontract, were required, in order to preserve a lien on the premises, to file the statement required by law within 60 days after the completion of Fraim's contract, or had 60 days after the completion of the building in which to file it. No brief has been filed on behalf of the defendants in error, but it is said in the brief of plaintiffs in error that the trial court understood the opinion in Crawford v. Blackman, 30 Kan. 527, 1 Pac. 136, as holding that the statement must be filed within 60 days after the completion of Fraim's contract. That case merely holds that, where there was an independent contract for the stonework of a building, the subcontractor, for the purpose of filing his statement, might regard the building as completed when the portion of the work contracted for was finished. The question was not presented as to whether he must do so. This case is controlled by the mechanic's lien law of 1872. In the case of Cunningham v. Barr, 45 Kan. 158, 25 Pac. 583, it was held: "Where, under the mechanic's lien law of 1872, a statement for a

subcontractor's lien for materials furnished was filed with the clerk of the district court within sixty days after the contractor had completed the building, but not within sixty days after the subcontractor had fulfilled his contract with the contractor, held, that the statement was filed in time." In the opinion in that case it was said, after citing the provision of the statute: "Now, the statement in the present case was certainly filed within sixty days after the completion of the building, and this, we think, was sufficient." The statute, by its terms, plainly gives 60 days after the completion of the building in which to file the statement. No reason is apparent for attempting by construction to vary the literal terms of the law. The case will be remanded, with direction to enter judgment sustaining the liens of the plaintiffs in error on the premises described in the findings for the amount of their respective judgments, and for a foreclosure and sale of said property in satisfaction of the same. All the justices concurring.

(54 Kan. 663)

NORTHWESTERN MUT. LIFE INS. CO. v. WOODS.

(Supreme Court of Kansas. Feb. 9, 1895.) LIFE INSURANCE POLICY STATEMENTS IN APPLICATION WHEN CONSTRUED AS WARRANTIESRELEASE AND DISCHARGE-FRAUD.

1. The statements contained in an application for a policy of life insurance will not be construed as warranties, which, if untrue in any particular, would avoid the policy, unless the provisions of the application and policy, taken together, leave no room for any other construction.

2. While in the application for the policy, in this case, it is declared that all the statements written on the application are warranted to be true, inasmuch as the policy refers to the aLswers to the questions contained in the application as statements, and not as warranties, the court will construe them merely as statements; and therefore holds that the insured was bound only to the exercise of good faith, and to answer truthfully as to all matters within his knowledge, and an omission to state a fact which he honestly deemed immaterial will not vitiate the policy.

3. The answer in this case sets up that the insured, in answer to the questions, "How long since you consulted any physician? For what disease? Give name and residence of such physician," stated, "Three years ago. Typhoid fever. Good recovery. Dr. Batinff, Ashtabula, Ohio"; that in fact the insured was, at the time of making such application, diseased with catarrh and consumption, of which he afterwards died, and did not allege that he was or had been afflicted with any other disease. Held that, under the pleadings, it was immaterial whether he had any other disease or not, especially in view of the fact that all the testimony shows that he had fully recovered from such previous complaints, if any.

4. Where a widow in whose favor a policy of life insurance was issued by the defendant company was induced by the agent of the company, shortly after the death of her husband, to accept a return of $71.17 in satisfaction of a policy for $1,000, but promptly, and almost

immediately thereafter, disavowed such settlement, and offered to return the sum received, a court of equity ought to relieve her from the consequences of such settlement, if she has been unduly influenced or overreached. Proof of legal duress or actual fraud need not be required. The jury in this case having found in favor of the plaintiff, their action will not be disturbed.

(Syllabus by the Court.)

Error from district court, Pawnee county; S. W. Vandivert, Judge.

Action by Mary M. Woods against the Northwestern Mutual Life Insurance Company. From a judgment for plaintiff, de fendant brings error. Affirmed.

This action was brought by Mary M. Woods on a policy of insurance issued by the defendant on the life of Charles H. Woods, her husband, who died at Hutchinson on March 15, 1888. The execution of the policy and the fact of the death of the assured were admitted, but the answer of the defendant alleges that the policy was based on an application made by the deceased, in which certain untruthful statements were made by him, as follows: "Ques. 19. How long since you consulted any physician? For what disease? Give name and residence of such physician. Ans. Three years ago. Typhoid fever. Good recovery. Dr. Batinff, Ashtabula, Ohio." "Ques. 25. Is there anything, or has there ever been anything, in your physical condition, family, or personal history, or habits, tending to shorten your life, which is not distinctly set forth above? Ans. No." The policy contained the following provisions: "Third. If any statement made in the application for this policy shall be found incorrect, this policy shall be void: provided, that if the age has been given correctly, and death shall occur later than three years from the date hereof, and if this policy shall not have been declared void by the company prior to such death, the liability of the company shall not, after such death, be disputed on account of such statement, except in case of fraud." The application and policy bear date August 17, 1886. The answer alleges that the said Charles H. Woods had on January 1, 1886, contracted a severe cold, which settled on his lungs; that he gradually grew worse from said date un til his death, March 15, 1888, which resulted from consumption caused by said cold. It is also alleged that at the time of the execution of said policy said Charles H. Woods was sick with catarrh and consumption, and continued so until his death. As a further defense, the answer states that on the 15th day of May, 1888, the defendant settled said loss with the plaintiff, and paid her the sum of $71.17; that in consideration thereof she surrendered and canceled the policy. The plaintiff replied, alleging that the policy and the receipt indorsed thereon were obtained from her by the agent of the insurance company through fraud and imposition, and by

means of false statements. The plaintiff brought into court, and tendered a return of, the check which had been given to her at the time of the alleged settlement. The jury rendered a general verdict in favor of the plaintiff for the amount of the policy.

J. B. Johnson and Keeler & Welch, for plaintiff in error. Houk & Whitelaw, for defendant in error.

ALLEN, J. (after stating the facts). It is urged on behalf of the insurance company that the statements contained in the application are warranties, and that, in case such statements were not strictly and literally true, the policy may be avoided. In support of this contention, the cases of Linz v. Insurance Co., 8 Mo. App. 363, and Association v. Parks (Me.) 16 Atl. 339, are cited. The first case named cites no authorities on this question, and gave it apparently but slight consideration, as the decision turned on a question of evidence. The other case, decided by the supreme court of Maine, was an action brought to annul a policy before the death of the assured. This case can hardly be said to support the contention of the plaintiff in error. On the other hand, we have the decision of the supreme court of the United States in the case of Moulor v. Insurance Co., 111 U. S. 335, 4 Sup. Ct. 466, which was an action on a policy of insurance which contained the following provision! "It is hereby declared and warranted that the above are fair and true answers to the foregoing questions, and it is acknowledged and agreed by the undersigned that this application shall form part of the contract of insurance, and that if there be in any of the answers herein made any untrue or evasive statements, or any misrepresentation or concealment of facts, then any policy granted upon this application shall be null and void." In the application on which the policy was issued, the seventh question asked was whether the assured had ever been afflicted with any of the diseases therein named, among which were included scrofula, asthma, and consumption. There was evidence tending to show that at or prior to the date of the application the insured was afflicted with said diseases, or some of them. The court held that the statements in the application were not warranties, and that "it was an erroneous construction of the contract to hold, as the court below did, that the company was relieved from liability if it appeared that the insured was in fact afflicted with the diseases, or any of them, mentioned in the charge of the court. The jury should have been instructed, so far as the matters here under examination are concerned, that the plaintiff was not precluded from recovery on the policy unless it appeared from all the circumstances, including the nature of

the diseases with which the insured was alleged to have been afflicted, that he knew, or had reason to believe, at the time of his application, that he was or had been so afflicted." It will be observed in this case that in the third condition of the policy, copied in the statement of the case, the answers of the deceased in the application are referred to as statements, and we think the policy under consideration in this case no stronger in its provisions than that under consideration in the case last above cited. See, also, National Bank v. Insurance Co., 95 U. S. 673; Insurance Co. v. Rundell (Ind. App.) 34 N. E. 588. Mamie Woods, a daughter of the deceased, testified that she was present when her father made the application on which the policy was based; that "the agent told papa any slight cold or little pain, he did not expect him to tell of; he did not expect him to recite every slight pain, and everything in that line."

Complaint is made of the instructions of the court, because, in their general scope, they do not treat the statements in the application as warranties, but directed the jury, in substance, that the applicant was only held to good faith in his answers, and that the policy could only be avoided if he died from a continuance of the identical disease or diseases for which he had been treated before his death. We need not trouble ourselves with the question which was before the supreme court of Maine in the case of Association v. Park, supra, whether a misrepresentation as to whether the assured was afflicted with a disease named, when death resulted from another and different disease, is a material misrepresentation, which will avoid the policy, because the pleadings in this case charge only that he had the disease of which he afterwards died, and no mention is made of any other or different disease. It is alleged in the answer that he was afflicted with catarrh and consumption, and it is claimed by counsel that the consumption of which he died was superinduced by the cold and catarrh contracted prior to the issuance of the policy. The proofs of death furnished in this case state that the remote cause of death was contracting a severe cold at a revival meeting about January 1, 1886, with gradual loss of flesh and strength until he died. The proof signed by the plaintiff gives the duration of his last illness about two months, and that he gradually grew worse every day until he died. If the statements contained in the proofs had been correct, of course, the insurance company would have had a good defense; but it was very clearly shown at the trial that the date given was a mistake, and that January 1, 1887, was intended instead of January 1, 1886.

There was abundant evidence

to show that Mr. Woods was in usual health, and was very actively employed as a Baptist preacher, up till January, 1887, when he

contracted a severe cold at a revival held at Burton. The only testimony in the case tending to show that he had any ailment between the 1st of January and the 17th of August, 1886, is that of Dr. J. G. Malcom. He testified that he had called on the deceased professionally several times during that period; that on July 17th the deceased called on him for treatment for a catarrhal affection of the throat and nasal passages, and that he treated him for the same on July 20th, 22d, 26th, August 12th, and 21st; that he made an examination of his lung some time in July, 1886; that he found no evidence of any physical change of the lungs, but could not say there was no such change; that he did not think there was any relation between catarrh and consumption, nor that catarrh of the throat would produce consumption, unless a person has tubercles of the throat or larnyx. On cross-examination the witness stated that his first treatment of Mr. Woods for catarrh was on July 17, 1886, and that he recovered from the disease with which he was afflicted, calling for visits from January 25, 1886, to July 17, 1886. As the jury were told that if the deceased was being treated for a disease of which he afterwards died, and knowingly gave false answers in his application concerning the same, that they should find for the defendant, we think the defendant was give at the trial the full benefit of the testimony of the doctor. It appears from all the evidence that Mr. Woods was never a robust man. Conceding that he was afflicted with catarrh at the time of his application, it does not necessarily follow, nor indeed would it generally be re-. garded as probable, that an ordinary case of catarrh would develop into consumption. We think most people are inclined to regard ordinary colds and ordinary cases of catarrh as ailments furnishing no serious cause for alarm, and that under the testimony in this case the jury was abundantly warranted in finding that the statements of the deceased were made in good faith; and especially so when he was told by the agent of the company that he need not tell of any slight cold or pain. Insurance Co. v. Pearce, 39 Kan. 396, 18 Pac. 291; Insurance Co. v. Barnes, 41 Kan. 161, 21 Pac. 165; Protective Union v. Gardner, 41 Kan. 397, 21 Pac. 233.

Complaint is made of certain rulings of the court concerning the admission of testimony. We have examined all of the matters referred to in the brief, and find no error in the rulings of the court, nor anything worthy of particular mention here.

With reference to the third defense, it appears that on the 15th of May, 1888, E. W. Poindexter, the company's agent for the state of Kansas, called on the plaintiff with a letter from the president of the insurance company to him, which he read to the plaintiff. In this letter question 19 and the answer

thereto were quoted, and attention was called to the statements in the proof of death that the disease was caused by consumption caused by taking a cold at a revival meeting January 1, 1886. The letter further stated that the case had been fully considered by the committee on insurance, who had decided against the claim, and directed that the premiums paid on the policy with interest, be refunded, and directing the agent to make a tender of this sum. The plaintiff testified that she then told him that there must be a mistake with reference to the dates, and she asked him to see Dr. Malcom; that in the afternoon he returned, said he had seen Dr. Malcom, and that Dr. Malcom thought there was no other way,-that she had better accept the proposition; that Poindexter also offered to make a liberal donation out of his own pocket; that he seemed to want to help her, and gave her $73 only, in a check, which was the amount of the premium and interest. The plaintiff further testified that she signed the receipt on the policy, relying on Poindexter's statement that she could not recover, and that Dr. Malcom had advised her to take it. Very soon after this transaction, Poindexter was arrested, and the policy was left at the Bank of Hutchinson under an agreement, so that the plaintiff might have access to it, to make copies, if she desired to sue on it. Poindexter was then discharged, and the check was tendered back to him. The jury were instructed that if they found that the plaintiff accepted $71.17 in full satisfaction of her claim against the insurance company, and that her acceptance was upon a full and complete and fair knowledge of her rights of recovery, then the jury should find for the defendant, but unless they should find that the plaintiff was fully apprised of all her rights with reference to recovery, and that the plaintiff was in no manner overreached or deceived by the defendant, or induced to engage in any settlement that she would not have engaged in had she been fully apprised of her rights, then the jury should find that there was no settlement made. This instruction is subject to criticism for using the word "rights," rather than the words, "facts affecting her rights." argued that the plaintiff had as good an opportunity to be, and was in fact, as fully informed with reference to all the facts as the defendant, and that she is presumed to know her legal rights as well as the defendant

It is

knew them. The facts in this case do not show anything like duress, but legal duress is not always necessary to entitle a party to relief in equity. In Pomeroy's Equity Jurisprudence (section 950), it is said, "Courts of equity undoubtedly grant relief in many classes of instances where there is no legal duress, and where the wronged party would perhaps be remediless at the common law, but these cases properly belong to the head of 'undue influence.' 99 In Story's Equity Jurisprudence (section 239), the author says: "Cases of an analogous nature may easily be put, where the party is subjected to undue influence, although in other respects of competent understanding. * Circumstances also of extreme necessity and distress of the party, although not accompanied by any direct restraint of duress, may, in like manner, so entirely overcome his free agency as to justify the court in setting aside a contract made by him, on account of some oppression or fraudulent advantage or imposition attendant upon it." We do not think that in this case it was necessary for the plaintiff, in order to avoid this settlement, to prove either strict legal duress, or actual fraud. The facts of the case were that she had a claim against the insurance company for a thousand dollars. A mistake of a year had been made, in stating in the proofs of death the date when her husband contracted the disease which resulted in his death. The letter of the president of the defendant company charged her deceased husband with falsehood and misrepresentation in the application for insurance. This charge, coming so recently after his death, when backed up by Poindexter's statement that he had learned from Dr. Malcom that the statements in the proofs of death were correct, were well calculated to influence the plaintiff's action. Expressions of friendly interest by the company's agent, and the promise of a donation from his own pocket, may have had some influence on her, and she was induced to accept the small sum of about seventy dollars in discharge of a thousand. In such a case this court would be very loth to set aside the findings of a jury, where there were any circumstances at all fairly tending to show that she was overreached by artifice, or subjected to any undue influence, in obtaining the settlement. We find no error in the record warranting a reversal of the judgment, and it is therefore affirmed. All the justices concurring.