Page images

was invested in the land. It did not at all change the real controversy, and should have been allowed. The decree is reversed, and cause remanded on the appeal of Kittie A. Jeffries and Mary A. Stewart; otherwise it is atfirmed.


(Supreme Court of Louisiana. November 19, 1888. 40 La. Ann.) PROHIBITIOS, WRIT OF_To COURT OF APPEALS JURISDICTION.

Prohibition lies to prevent the court of appeals from exercising jurisdiction over a controversy involving a right to servitude of light and view, valued at more than $1,000, and a claim for $1,000 damages, both exceeding $2,000, the upper jurisdic.

tional limit of said court. (Syllabus by the Court.)

Application for a writ of prohibition.

Application by Mrs. Millard for writ to prevent the court of appeals from exercising jurisdiction over a controversy involving more than $2,000.

J. 8. & J. T. Whitaker, for relator. Braughn, Buck, Dinkelspiel & Hart, for respondents.

BERMUDEZ, J. The relatrix complains that the court of appeals bas, over her objections, assumed jurisdiction over a controversy in volving more than $2,000. The respondent judges return that the court over which they preside has jurisdiction, the matters at issue being less than $2,000. The relatrix brought suit to compel the closing of a window opened in a wall built by an adjoining proprietor and overlooking her premises. The substantial averment of the relatrix is that the opening has materially impaired and diminished the value of her property to an extent exceeding $1,000, and that the enjoyment of the same by the defenılant has occasioned her injury, assessed at $1,000. The prayer is for a perpetual injunction, and for $1,000 damages. From a judgment decreeing the closing of the window, and reserving the claim for damages for future action, the defendant appealed to the court of appeals in this city. Relatrix objected to the jurisdiction of that court, but her objections were discarded; thereupon she sought reliet here.

It is apparent that the suit rests upon the fundamental assumptions that the relatrix is the owner of certain lots on which she resides which are free from all rights of servitude in favor of defendant's property; that in violation of the rights of relatrix, defendant has made an opening in his wall, overhanging her premises, in consequence of which the value of her property was materially impaired, and has decreased to an extent exceeding $1,000; that by the destruction thus occasioned of the privacy of her residence she had sustained damages assessed at $1,000 at the time of the bringing of her action, and that said damages are continuous, etc. The petition, therefore, contains two demands: one that the defendant be enjoined from enjoying the window, and another that the defendant be condemned to pay $1,000 for damages incurred. The questions at issue are, therefore, (1) the existence vel non of a right of servitude of light and view, involving a title to real estate, and (2) a money demand, put down, the former at more than $1,000, the latter at $1,000, which, together, surely exceed $2,000, the upper jurisdictional limit of the court of appeals. The depreciation of the property and the damages are not one and the same thing. They constitute two different objects and grounds of complaint. The depreciation does not constitute the damages claimed, and the damages asked do not represent the depreciation. It will not do to say that this is not so, because the prayer of the petition is narrowed down to a demand for $1,000 dainages; for the prayer is also for the perpetuation of the injunction, which means a judicial recognition that the property of the plaintitf owes no servitude to that of the defendant. If, instead of the suit having been brought by the plaintitf, it had been instituted by the de fendant to have her right to the window recognized, under a proper averment, it is undeniable that the case would have been appealable to this court. A germane question was decided in the case of State v. Judge, 25 La. Ann. 621, in which it was held that the question whether the relatrix had the right to build a wall on her property involves a larger interest than the amount claimed is damages, and concerns the right of property and its enjoyments, affecting the value of the property on which the wall is built. See Ealer v. Freret, 11 La. Ann. 455; Weill v. Baker, 39 La. Ann. 1102, 3 South. Rep. 361. The court subsequently passed on the merits of the suit. Parle v. D'Arcy, 28 La. Ann. 424. In an analogous case, the present court has ruled in a similar manner, (State v. Lapeyrollerie, 38 La. Ann. 913;) and the doctrine there announced was reiterated in a parallel controversy involving both a right to servitude and a clain for damages, (Russ v. Egan, 39 La. Ann. 917, 3 Southi. Rep. 85.) It is therefore ordered and decreed that the restraining order herein made be maintained, and the prohibition asked be made peremptory.



(Supreme Court of Alabama. December 4, 1888.) TAXATION-SALE-ERROXEOUS Taxation-Equitable RELIEF-INJUNCTION.

Under act Ala. Feb. 17, 1855, providing for the sale of land in the city of Montgomery for unpaid municipal taxes by decree of the recorder after notice to the owner, objections that an assessment for sidewalk repairs was illegal, being made by the clerk instead of the council, and for purposes not municipal, must be made before the recorder, and equity will not enjoin a sale on those grounds. Appeal from chancery court, Montgomery county; Thomas W. COLEMAN, Chancellor.

Bill by Matthew Strenna against the city council of Montgomery to restrain the sale of his land under a decree of the recorder for an unpaid assessment levied to pay for sidewalk repairs made adjacent to his premises. From a decree dismissing the bill complainant appeals.

Watts & Son, for appellant. Jones & Falkner, for appellee.

STONE, C. J. Following a very strong array of authorities, it has long been settled in this state tirat equity will not interfere by injunction with the collection of taxes, unless, in addition to illegality, hardship, or irregularity, the case is brought within some one or more of the recognized heads of equity jurisdiction; and in no case will it interfere for mere errors or excess of val. uation, hardship, or injustice of the law, or which can be redressed in a law forum. Insurance Co. v. Lott, 54 Ala. 499. Illegality of the tax, of itself, furnishes no ground for equitable interference. Land Co. v. Ayres, 62 Ala. 413; Stone v. Mayor, 57 Ala. 61; Cooley, Tax'n, (20 Ed.) 760; 2 Dill. Mun. Corp. $ 906 et seq.; Mayor v. Meserole, 26 Wend. 132; Mooers v. Smedley, 6 Johns. Ch. 28; Heywood v. City of Buffalo, 14 N. Y. 534; Bank v. Superdisor, 25 N. Y. 312; Douglass v. Town of Harrisville, 9 W. Va. 162; Railroad Co. v. Siders, 88 Ill. 320; Sayre v. Tompkins, 23 Mo. 443; Barrow v. Davis, 46 Mo. 394; McCormack v. Patchin, 53 Mo.33, 14 Amer. Rep. 410, and note; Ve Donald v. Murphree, 45 Miss. 705; Cross v. Mayor, 18 N. J. Eq. 305; 1 Pom. Eg. Jur. § 265. In 1 High, Inj. (24 Ed.) $ 587, it is said: “The jurisdiction of equity in restraint of the action of municipal corporations in regulating streets and highways is exercised with much caution, and is not regarded as a favorite jurisdiction with the courts. In the absence of allegations of irreparable injury, equity will hesitate to interfere where the effect of an injunciion would be to review the action of such inferior political tribunals, and thus practically constitute a court of equity a court of errors to sit in review of the proceedings of other tribunals." And with the control of matters Testing largely in the discretion of municipal authorities equity will not or

dinarily interfere.” The proceedings necessary to be taken in cases like the present are all prescribed either by the statutes or by ordinance. The ordinances are not charged to have been in excess of the authority conferred on the mayor and aldermen if the act be constitutional. The sum of the legislation, then, was and is that after the enactment of the several ordinances it was declared that, within certain defined limits within the city of Montgomery, (appellant's property is within those limits,) no repairs should be made in any sidewalk pavement, except with stone, artificial stone, or concrete; that when such paved sidewalks became out of repair, it was made the duty of the owner of the property abutting such sidewalk to repair the same with materials aforesaid within 10 days after notice to do so; that, failing so to repair, the city itself would make the necessary repairs, and tax the same against the owner of the property, which tax was declared to be a lien on the property in front of which the repairs were made, for the cost of repairs so assessed as taxes.

In the bill before us it is not denied that all these proceedings were had, but certain alleged irregularities and unauthorized agencies are charged to have occurred and been employed in each and every step taken. It is admitted that said assessment had never been paid; and it is not averred that it is in excess of the proper and reasonable cost of the repairs. The assessment not having been paid, proceedings were had to assert the lien and enforce the payment, under the act “to regulate the sale of real estate for unpaid municipal taxes in the city of Montgoinery," approved February 17, 1885. Sess. Acts, 767. It is not denied that this act was strictly conformed to; and that after 30 days' notice, given as the statute requires, the recorder made an order and decrre directing the lot to be sold in payment of the assessment. No irregularity is charged in this proceeding, and it is not claimed that any objection was interposed or defense made to this proceeding. Nor was any appeal taken or claimed as provided by the fourth section of that act. A single exception is urged to the validity of the proceedings before the recorder. The statute only authorized the sale of real property when the taxes have been "assessed for municipal purposes," and it is contended that the present assessment was not for municipal purposes. We think the interpretation contended for is too technical and narrow. The authority to have the improvement made was manifestly for municipal purposes; and the assessment and collection of the taxes are only instrumentalities for carrying that purpose into effect.

It is objected and urged before us that proper steps were not taken to ascertain and determine that the pavement or sidewalk needed repairs, and the extent of thein; and that the assessment was improperly made by the clerk instead of the city council. Possibly the proper time for raising the question of the necessity for repairs is within the 10 days after notice to the owner to make repairs. Intendant v. Pippin, 31 Ala. 542; Irwin v. Mayor, 57 Ala. 6. But whether this is so or not, we hold that all the objections which have been urged before us should have been raised on the trial and proceedings before the recorder; and, if necessary, an appeal should bàve been taken. The defenses being all legal in form, and the defendant having had ample opportunity to make them, which he neglected to do, he has no standing in a chancery coirt. Headley v. Bell, 84 Ala. 346, 4 South. Rep. 391, and citations. Affirmed.


(Supreme Court of Alabama. December 5, 1888.) 1. HUSBAND AND WIFE-CONTRACTS BY WIFE-SEPARATE ESTATE.

A plea to an action on an insurance policy averring that when plaintiff purchased the goods insured, (a stock of merchandise,) she was, and still remained, a married woman; that she purchased them on credit, had not pairl, and refused to pay, for them, and denied her liability; and that hence she had no insurable interest therein, with no allegation that she had no separate estate which she could and did bind for the payment of the goods, or that her husband dissented from the purchase,-is in.

sufficient, as in either case she could make a purchase valid as to third parties. 2. INSURANCE-INSTRUCTIONS TO AGENTS.

Such a policy is valid though defendant's agents were instructed to take no risks

on merchandise of married women, of which plaintiff was ignorant. 3. SAME_WAIVER OF CONDITIONS-ADDITIONAL INSURANCE.

The omission by defendant to notify plaintiff that it claimed a forfeiture of the policy for the breach of a clause against additional insurance is no waiver of the for

feiture, when defendant only learned of the breach after the loss. 4. SAME-WAITER BY AGENT.

A local soliciting agent of the insurance company cannot, without express au

thority, waive such a forfeiture after the destruction of the goods. 5. SAME- APPOINTMENT OF ARBITRATORS—WAIVER OF FORFEITURE.

Under a provision in tbe policy that an appraisement of the damage by arbitrators shall neither determine the validity of the contract, the company's liability, nor any question but the amount of the loss, an agreement by an adjuster, who represents both defendant and the company taking the additional risk, agreeing upon the appointment of arbitrators to appraise, with the stipulation that no other question shall be thereby affected, is no waiver of the forfeiture. Appeal from circuit court, Montgomery county; John P. HUBBARD, Judge.

Action by Ettie Young against the Queen Insurance Company of Liverpool upon a fire insurance policy. Judgment for plamtiff, and defendant appeals. Tompkins, London & Troy, for appellant.' Watts & Son, for appellee.

CLOPTON, J. The action is brought by appellee on a policy insuring a stock of goods against loss or damage by fire. On the evidence, there can be no controversy as to the destruction of the goods or their value. It is only necessary to consider the questions arising on the special defenses. These are: (1) Want of insurable interest; (2) concealment of a fact material to the risk, and (3) forfeiture of the policy. The averments of the plea, setting up want of insurable interest, are- —that plaintiff was a married woman, under the disabilities of coverture at the time of the issuance of the policy, and has continuously remained such; that she purchased the insured goods on a credit, for the purpose of carrying on a mercantile business, and asserts that no interest or title passed to her by the purchase, and has repudiated, and still repudiates and denies, her liability to pay for the goods. It is contended that The contract of purchase is absolutely void and inoperative to pass an insurable interest. The statutes creating the separate estates of married women, in force at the time of the issuance of the policy, having been construed not to confer capacity, nor to enlarge the common-law capacity of the wife to acquire property by purchase on credit, the character and operation of such .contract of purchase must be determined by the principles of the common-law. * The authorities are in conflict on the question of the wife's power to purchase -on credit, when she has no separate estate which she cán bind; but they hold

quite uniformly that she may make a valid purchase of other property on credit, when she is possessed of a separate estate which she can charge by the contract of purchase, and such property, when purchased, becomes her separate estate. Wilder v. Abernethy, 54 Ala. 644, is not inconsistent with this doctrine. That case was a trial of the right of property between a creditor of the husband, and the wife, as claimant, in which the legal title only was involved. The goods were purchased on credit by the husband for the purpose of trade in the name of his wife, passed into and continued in his possession until they were seized by the sheriff under an execution against him, and were unpaid for at the time of the levy. It is said: “The goods having been pur.chased only on credit of the wife, and the contract of purchase not being a .charge upon the separate estate created by the deposit by her father with her husband, (the only separate estate she is shown to have had,) no legal title to the goods passed to her.” Manifestly, the decision would have been otherwise had Mrs. Abernethy possessed a separate estate on which the contract of purchase was a charge. The omission of the plea to aver that the plaintiff did not possess such separate estate an answer to its sufficiency if there were no other.

The capacity of a married woman to purchase property on credit with the assent of lier husband, though she may have no separate estate, must be regarded as settled in this state. It has been repeatedly held that at common law the wife may make, during coverture, a valid purchase on credit of real estate with the assent of the husband, or, if without his consent, subject to his disaffirmance, and if he does not dissent such purchase creates in the wife a legal or equitable interest, as may be the nature and effect of the transaction, which becomes her separate estate. Marks v. Cowles, 53 Ala. 499; Prout v. Hoge, 57 Ala. 28; Sharp v. Sharp, 76 Ala. 312. There is nothing in the character or qualities of personal property which calls for the application of a different rule. Though a married woman cannot, at common law, bind her person by a contract of purchase, if the vendor is willing to risk her voluntary payment, his transfer will be valid against all persons, unless it may be the creditors of the husband. Knapp v. Smith, 27 N. Y. 277; Kelly, Cont. Mar. Wom. 160.

The second plea avers, in addition to the foregoing facts, that the plaintiff concealed the fact of her coverture, and that the agents of defendant were forbidden to issue policies of insurance on stocks of merchandise in the hands of married women. It follows from what we have said that the coverture of plaintiff is not a fact material to the risk. The agents of defendant were apparently clothed with general powers to solicit and take applications for insurance from any and all persons. Private instructions to such agent, uncommunicated to the plaintiff, will not affect her rights. The policy of insurance contains the condition that it shall be and become void in case the assured “shall now have, or hereafter make or accept, any other insurance, whether valid or not, on any of the property above described, without the written consent of the company indorsed hereon." The evidence indisputably shows that the plaintiff subsequently accepted a valid policy of insurance on the same stock of goods from the Hibernia Insurance Company. The agent. of the latter company who issued the policy was informed of the first insurance, and embodied in the policy a permit for additional insurance, and informed the plaintiff that she had to give defendant notice of the second in

The amount due on this policy has been paid. The second insurance being valid, we are relieverl of the necessity of considering the ques-tion so elaborately argued by counsel, whether accepting invalid additional insurance would avoid the contract. The court held, and properly held, that. procuring additional valid insurance without the consent of defendant was a breach of the condition of the policy. Such additional insurance having been taken and accepted without notice to the defendant, the contract is avoided, unless the company has waived the right to claim the forfeiture, which the plaintiff insists has been done. On breach of the condition and forfeiture of insurance, the defendant had the election to avoid the policy, or waive its right to claim the forfeiture. Conditions in a policy of insurance limiting or avoiding liability are strictly construed against the insurer, and liberally in favor of the assured. Though a waiver may be in the nature of an estoppel, and maintained on similar principles, they are not convertible terms. The courts not favoring forfeitures are usually inclined to take hold of any circumstances which indicate an election to waive a forfeiture. A waiver may be created by acts, conduct, or declarations insufficient to create a technical estoppel. If the company, after knowledge of the breach, enters into. negotiations or transactions with the assured which recognize and treat the policy as still in force, or induces the assured to incur trouble or expense, it will be regarded as having waived the right to claim the forfeiture; but notice pr knowledge of the breach is essential to a waiver. If the defendant did not


« PreviousContinue »