assumed on the part of Hatheway that the burden was upon the Lashbrooks to show payment of the mortgage debt; and the general rule is undoubtedly in accord with this assumption. The mortgagors have taken upon themselves this burden, and endeavored to make this proof, and counsel for Hatheway insist that their showing is vague, inconclusive, unsatisfactory and in some particulars inconsistent with itself and with some of the allegations in the original bill. There is foundation for the criticisms made, and they have not been overlooked by us in coming to our conclusions. But, on the other hand, we cannot overlook some circumstances which not only bear strongly against the claim set up under the mortgage, but tend to excuse the defects in the showing made against it, or at least to entitle it to be viewed with more than ordinary liberality. After ten years' delay, during which it does not appear that any claim was being made under the mortgage, or, on the other hand, that the mortgagors were recognizing it as an existing security, we find it suddenly, without warning, put in process of foreclosure, and a sum claimed under it which is not only more than five times the amount of the original debt, but is large enough, apparently, to require the sale of all the land to satisfy it. In the mean time John K. Hatheway and Gilbert Hatheway have both deceased, and any light which either of them might throw upon their dealings with the Lashbrooks has become impossible of attainment. Among the papers of Gilbert Hatheway were the various securities he had taken from Aaron J. Lashbrooks besides the mortgage in the suit, and there was a memorandum in his handwriting indicating that some of these were to be delivered up to Lashbrooks, but it was impossible to determine clearly what ones were intended. It is very plain that the Lashbrooks had confided in Gilbert Hatheway, and placed themselves to a considerable extent in his hands; and it would be both unjust and illogical to require of them, under the circumstances, the same full and complete showing of their equities that would be expected if the transactions were recent, and if the parties had apparently dealt with each other on a footing of equality and without special trust. If there were no mortgage all remedy on these demands would have been lost by lapse of time, and the mortgage does not keep alive the personal obligation, which was barred some years ago. Mich. Ins. Co. v. Brown 11 Mich. 265; Appeal of Goodrich 18 Mich. 110; Powell v. Smith 30 Mich. 452. It is, of course, possible for an entirely just claim to be suffered to lie along in this manner without the notice of either creditor or debtor, but it is so unusual that the cir cumstance is not to be overlooked in a case standing upon uncertain or conflicting evidence. The evidence in this case is both uncertain and conflicting, but there is testimony from impartial witnesses which, if believed, makes out a prima facie case of complete payment of the mortgage note. We are of opinion that it has not been overthrown by any evidence given on behalf of Hatheway, and that it must be accepted as conclusive. The next question is whether the mortgage can be held to cover any other demand. We have seen that by its terms it purported to secure any claims the mortgagee might have against the mortgagors either before or at the time of foreclosure; and it seems to be thought that the mortgagee might buy up demands at discretion and thereby extend the mortgage indefinitely. But this would be so extraordinary an arrangement that the intent to provide for it ought to be too clear for doubt before a court could be justified in enforcing it. We do not think it is to be found in this mortThe farthest this stipulation can be understood to go is to cover demands directly arising out of the dealings between the mortgagors and the mortgagee, and its terms will be fully answered if they are limited to such demands. gage. But, as has been said, this mortgage was written upon a blank form, and this very unusual clause was contained in the printed part, and might very naturally have been overlooked in filling out or in signing it. There is some reason to believe that such was the case here. The mortgage was given while the federal laws requiring securities to be stamped in proportion to their amount were in force, and 52 MICH.-9 it was stamped for two thousand dollars only. This raises. a strong presumption that it was not understood to be operative further as a security; and it is manifest that it could not have been, while the stamp laws remained in force, without further stamping. But it is not necessary to consider this clause further than to determine that it does not extend beyond the dealings between the mortgagee and the mortgagors. Upon those dealings we are not satisfied by the evidence that anything now remains unpaid. The conclusion is that the cross-bill must be dismissed with costs of both courts. As James S. P. Hatheway insists upon his ownership of the mortgage in suit, complainant in the original suit may have as against him a perpetual injunction to restrain foreclosure, and will recover costs. The other Justices concurred. After the foregoing opinion was filed attention was called by counsel to the fact that in the deed from John K. Hatheway and wife to James S. P. Hatheway a clause subsequent to the one recited in the opinion purports to "convey and deed unto the said James S. P. Hatheway all other real and personal estate and property of whatever name or nature that they or either of them have any right, title or interest in and to, situate in the aforesaid Macomb and St. Clair counties, or elsewhere in the State of Michigan." At the time of giving this deed the grantors resided in Massachusetts. Whether a debt due to one of them is to be deemed "situate" in the State of Michigan because secured upon property there, is a question upon which an opinion seems not to be called for, in view of what is above said on the merits. C. JOHN O'BRIEN V. OHIO INSURANCE COMPANY. Insurance-Statement of incumbrances-Proofs of loss. 1. Where an insurance agent himself fills out a policy upon a mere oral application for insurance, and the applicant is not asked the amount of incumbrances, and does not know that it should be stated, his omission to state it is no defense to the payment of a loss, unless in cases involving unusual risk not likely to be contemplated by the insurer. 2. An insured person who is notified by an agent of the insurance company that the company absolutely refuses to pay a loss, is excused from furnishing proof of the loss or demanding payment before bringing suit on the policy, especially if an agent of the company has made investigation. 3. The stipulation in an insurance policy that any application, survey, plan or description of the property referred to therein shall be considered part of the policy, does not apply where the application &c. is not in writing. 52 131 326 4. An insurer who has absolutely denied liability for a loss is estopped 128 5. The restrictions in policies of insurance upon the power of agents to Error to Muskegon. (Russell, J.) Oct. 25.-Dec. 20. ASSUMPSIT. Defendant brings error. Norris & Ull for appellant. Affirmed. Campbell & Allen for appellee. Where a policy is issued on verbal application without any representation, all information as to the risk is waived unless the risk is unusual: Wood on Ins. § 162; Com. v. Hide & L. Ins Co. 112 Mass. 136; Bahringer v. Empire &c. Ins. Co. 2 Thomp. 152 131 150 473 131 152 & C. 610; Kernochan v. N. Y. &c. Ins. Co. 17 N. Y. 428; Emery v. P. &c. Ins. Co. 52 Me. 322; and this is so when the policy is issued on the agent's knowledge: Wood on Ins. §§ 203-205; Bartholomew v. Merchants' Ins. Co. 25 Ia. 507; see N. A. Ins. Co. v. Throop 22 Mich. 146; Peoria Ins. Co. v. Hall 12 Mich 202; Mich. State Ins. Co. v. Lewis 30 Mich. 41; Aurora Ins. Co. v. Kranich 36 Mich. 289; Am. Ins. Co. v. Gilbert 27 Mich. 430; Lorillard Ins. Co. v. McCulloch 21 Ohio St. 176; a policy is not avoided even if oral statements made are false, if they were made honestly: Alexander v. Germ. &c. Ins. Co. 5 Thomp. & C. 208; Plumb v. Cattaraugus County Ins. Co. 18 N. Y. 392; in cases of fire insurance the insured may be silent as to all matters open to observation if the insurer makes examination for himself: Wood on Ins. § 81 n. 6; Green v. Merch. Ins. Co. 10 Pick. 402; Fish v. Cottenet 44 N. Y. 538; and when the insurer makes no inquiry it is presumable that no information is desired: Clark v. Manuf's Ins. Co. 8 How. 249; see generally Norwich & N. Y. Transp. Co. v. W. Mass. Ins. Co. 34 Conn. 561; N. & N. Y. Trans. Co. v. How. Fire Ins. Co. 12 Wall. 194; Tayloe v. M. &c. Co. 9 How. 396; Noyes v. W. &c. Ins. Co. 30 Vt. 659; Martin v. F. Ins. Co. 20 Pick. 389; Security Ins. Co. v. Fay 22 Mich. 467; Hibernia Ins. Co. v. O'Connor 29 Mich. 241; Merc. Ins. Co. v. Holthaus 43 Mich. 423; Kernochan v. N. Y. &c. Ins. Co. 17 N. Y. 428. GRAVES, C. J. The plaintiff recovered on one of defendant's policies and error is alleged. First. We think the declaration was sufficient under the rule of court, [Circuit Court Rule 104] and that the contract of insurance was properly admitted. The objection of variance was not tenable.' Second. At the date of this policy and down to the occurrence of the fire an incumbrance by mortgage of from three 'Circuit Court Rule 104 provides that in declaring upon printed policies of insurance it shall not be necessary to set forth specifically any more than the date and amount of the policy; the premium paid or to be paid; the property or risk insured; and the loss. |