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Vol. I.)


(No. 5.

it. The judgment is regular on its face. It does not of itself affirmatively show any want of authority in Haynes. The judgment is conclusive and cannot be collaterally questioned. Hahn v. Kelly, 34 Cal. 391; Sharp v. Lumley, 34 Cal. 615, 616; Ryder v. Cohn, 37 Cal. 89; Quivey v. Porter, 37 Cal. 462 ; Eitel v. Foote, 39 Cal. 440 ; Mahony v. Middleton, 41 Cal. 41; Blasdel v. Kean, 8 Nev. 308; Galpin v. Page, 1 Saw. 309.

A point is made and pressed with some earnestness, that, if the object of the transaction by which the decree in Freanor v. Lee was permitted to be taken, and the property conveyed by Freanor to Haynes, was to get the title out of complainant in order to protect it from confiscation, the proceedings were all void, because complainant was, at the time, an alien enemy, and the act on that ground unlawful.

This may have been an additional motive in the mind of the counsel of complainant to assent to the arrangement contemplated. But, if so, it was merely incidental to the main object, which undoubtedly was, to secure the money due to complainant, which was in imminent danger of being lost otherwise than by confiscation. Besides there is nothing to show that Freanor was, in any way, influenced by such considerations. The title conveyed, and the trusts imposed by him, at least as to parties other than complainant, cannot be affected by the secret motives which actuated the representatives of the latter in consenting to the decree.

It is further claimed, that a valid judgment could not be obtained removing the cloud upon Freanor's title, even if the court could get a service of process in any mode recognized by law, or acquire jurisdiction by means of an appearance made by an attorney duly authorized. The decisions of the supreme court settle that question. In United States v. Grossmayer, 9 Wal. 75, it seems to be conceded, that “a resident in the territory of one of the belligerents may have in time of war an agent residing in the territory of the other, to whom his debtor could pay his debt in money, or deliver to him property in discharge of it, but in such case the agency must have been created before the war began.” Now, that is the case in hand. Coffee was the judgment debtor of complainant, whose power of attorney to Haynes, and all whose subsequent instructions, verbal and by letter, relating to this business, were given before the war broke out. If Haynes had power to receive the debt or property in discharge of the debt, he must have had power notwithstanding the war to enter into these arrangements by means of which the money or property could be received. Besides, at the present term, the supreme court of the United States has held, in the Washington University of Missouri v. Finch, that a sale of real estate under a power contained in a trust deed given to secure a debt executed before the late late civil war is valid, notwithstanding the fact that the grantors in the trust deed were citizens and residents of the States in insurrection at the time of the sale made while the war was flagrant; and the court say : “ But this court has never decided, nor intentionally given expression to the idea, that the property of citizens of the Rebel States located in the Loyal States was, by the mere existence of the war, exempted from judicial process for debts due to citizens of the Loyal States contracted before the war. A proposition like this, which gives an immunity to rebels against the government not accorded to the soldier who is fighting for that government, in the very locality where the other


Vol. I.)


(No. 5.

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resides, must receive the gravest consideration, and be supported by unquestioned weight of authority before it receives our assent. Its tendency is to make the very debts which the citizens of one section may owe to another an inducement to revolution and insurrection, and it rewards the man who lifts his hands against his government by protection to his property, which it would not otherwise possess if he can raise his efforts to the dignity of a civil war."

So, also, at the present term, in the case of Masterson v. Howard, the court say, that the existence of war “ does not prevent citizens of one bel

ligerent from taking proceedings for the protection of their own property in their own courts against the citizens of the other, whenever the latter can be reached by proce88,"

In McVeigh v. The United States, 11 Wal. 267, the court holds that an alien enemy may be sued, though he may not have a right to bring suits in our courts, and that when he is sued he has a right to appear and defend, and

say: “Whatever may be the extent of the disability of an alien enemy to sue in the courts of the hostile country, it is clear that he is liable to be sueà." These decisions cover this case. If the citizen may sue to recover a debt in his own courts due from an alien enemy, he

may sue to enforce any other right. Freanor having a right of action, as he claims, against Lee to remove a cloud upon his title, filed his bill in equity for that purpose. The statute of California provided for procuring service against non-residents in such cases by publication of summons, so that service could have been had in a mode provided by law as well against an alien enemy as against other non-residents. Section twenty-two of the California Code of Procedure at the time provided, that, " after the filing of the complaint a defendant in an action may appear, answer, or demur, whether summons be issued or not, and such appearance, answer, or demurrer shall be deemed a waiver of summons. Before the commencement of the war, complainant, Lee, had empowered Haynes to employ counsel in

matters of litigation that might arise touching his interests in California, as we have seen, and upon the filing of Freanor's complaint, Colonel Crockett was employed to appear in the case, which he did. This gave the court jurisdiction even though complainant, at the time, was an alien enemy. The other questions have been already discussed.

It ought to be added, that I find no offer on the part of the complainant in his bill to return the money he has received under the arrangements which he now seeks to set aside. If he demands the lands after the large increase in value which has accrued during the ten years' growth of the city of Oakland, before the commencement of this action, also enhanced by the improvements put upon them by the parties since the transactions set out have occurred, he, certainly, ought to offer to return the amount of the debt received by him in lieu of the lands. But aside from this defect in the bill by failing to offer to do equity, I find no ground for equitable relief. On the contrary, I think, under the circumstances shown, the complainant has abundant reason to be satisfied with the acts of his agents and attorneys, and to congratulate himself, that in his efforts to obtain an undue advantage over prior lien holders, he did not ultimately lose the advantage to which he was justly entitled.


Vol. I.]

McCann v. Ætna Ins. Co.

(No. 5.

The bill must be dismissed with costs, and it is so ordered.
B. S. Brooks, for complainant.
Rogers, Williams, Irving, Crane, Barstow f others, for defendants.

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Held, that in an action against an insurance company ta compel it to issue a policy

upon an alleged contract of insurance, there must be conclusive proof that such contract was actually made. Held, that due notice of loss, and statements supported by affidavits, are conditions

precedent to recovery.
APPEAL from district court of Otoe County.
Shambaugh g Richardson, for plaintiffs.
S. H. Calhoun, for defendants.

GANTT, Assoc. J. The plaintiffs claim that on the 11th day of October, 1865, they made a verbal application to the agent of defendants for an insurance on the one half of the steamboat Sunset, and that the defendant by its agent, James Sweet, accepted such application and agreed to take the risk. The defendant denies the alleged contract of insurance on the steamboat, and makes several other defences. Considerable testimony was taken in the case, but the substance of all the testimony in respect to the alleged contract is that of McCann, one of the plaintiffs, that on the day above stated he went to the office of James Sweet, the agent, and by verbal agreement with him as the agent, he effected an insurance on the one half of the steamboat in the Ætna Insurance Company, and that this conversation was the only one in which he made a direct application for such insurance. Also that of James Sweet, the agent, that no such contract of insurance was made ; that he told Mr. McCann he could not issue such policy, but that he could take his application and send it to the office of the general agent, and that McCann quickly left his office, without leaving a written application. And that of S. H. Calhoun, stating that he was in the office of Sweet at the time the conversation occurred between McCann and Sweet, and that Sweet formally told McCann he would write to the company, and see if they would take the risk ; that he expressly said he could not issue a policy on the hull of the boat, but it must be done by the home office, and that McCann left the office within five minutes after he entered it. It seems that Calhoun was the only person present at the time of the conversation between McCann and Sweet, and therefore all the testimony in regard to the conversation and

1 Opinion filed January 15th, 1874. To appear in Vol. 3, Nebraska Reports.



. I.)


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the alleged contract of insurance is that of these three persons. We think the testimony is not sufficient to maintain the allegations of the petition. That of McCann stands without any support whatever, while that of Sweet is corroborated by that of Calhoun. And the most favorable construction which can possibly be put upon all this testimony for the plaintiff still leaves the matter in very great doubt. In Suydam v. The Columbus Ins. Co. 18 Ohio, 459, the rule is laid down that in an action against an insurance company to compel it to issue a policy upon an alleged contract of insurance, such action cannot be sustained unless there is conclusive proof that such contract was actually made. If the matter is left in doubt upon the whole evidence, the suit must be dismissed. Neville et al. v. The Merchants' and Manufacturing Ins. Co. 19 Ohio, 452; 2 Parsons on Con. 351. But suppose the evidence were sufficient to establish a parol contract of insurance between the parties, have the plaintiffs placed themselves in a position to secure a right of action and to maintain their suit to recover damages for the loss sustained by the sinking of the boat? The assured, sustaining loss, is required forthwith to give notice to the company or its agent, and as soon as possible thereafter to make and deliver in a particular account of such loss, signed and sworn to by him, together with a statement of the whole value of the subject insured, his interest therein, and when and how the loss originated so far as he knows or believes. All these requirements are conditions precedent to be

. performed on the part of the assured, and until such statements and proofs are produced, the loss shall not be deemed payable. It is said that the " assured cannot be presumed ignorant of the usages of the office to which he applies for insurance,” and the law will not permit him on the ground of ignorance to claim exemption from producing the notice, statements, or preliminary proof, so indispensable to his demand of payment; at least all such proofs as may be in his knowledge or possession touching the nature and extent of the loss. And it seems to be the well settled doctrine in this country that the notice and statements supported by oath are conditions precedent, and must be performed before the assured is entitled to receive payment or to sue for the loss, unless the company, by some act on its part, waives the performance of said condition. Angeil on Ins. sec. 226; Columbia Ins. Co. v. Lawrence, 2 Peters, 53; Same v. Same, 10 Peters, 513; Haff v. Marine Ins. Co. 4 John. 135.

In the case at bar, it appears from the proofs that the plaintiffs did not comply with these conditions precedent, except that a copy of protest was either left with or shown to the agent. If in law the plaintiff could, on the ground of ignorance, claim exemption from producing the preliminary proofs

, yet in this case they could not be permitted to plead ignorance, for the proofs show that they were fully notified to produce such statements.

J. B. Bennett, general agent of the company, testifies that McCann called at his office, in Cincinnati, Ohio, and in their conversation he distinctly requested him to submit the proofs of his loss, to reduce his statements of facts to writing and verify them by oath, to produce a pro, test, and submit any facts bearing directly or indirectly on his claim.” McCann in his testimony fully corroborates this testimony of Bennett; says

Bennett informed him that no statement of the facts or proofs had been received by him, and that he could not settle the matter; that



Vol. I.]

PERRY v. Smoot.

(No. 5.

there were many questions arising from the peculiar facts of the case,” &c. ; that he “ returned to Nebraska City, called on Mr. Sweet, and asked him if he was prepared to pay the loss. He said he was not, and I brought the suit against the defendants.” The statements, &c., were demanded of McCann, and he refused to furnish them, and therefore the loss alleged to have been sustained by the sinking of the boat was not payable; and without the production of these proofs, certainly, the agent might well say he was not prepared to pay the loss.

The failure of the plaintiffs to produce those preliminary proofs we think are sufficiently pleaded in the answer. It is true the defendants plead other defences in their answer, but that does not relieve the plaintiffs from the performance of the conditions precedent. • Good faith and fair dealing is of the essence of the contract of insurance,” but the evidence shows that the plaintiffs have not so acted in the premises. They failed to produce the preliminary proofs, and when requested so to do, they refused and brought their suit; and as the alleged loss is not payable until these conditions precedent are performed, they cannot maintain their action.

Judgment affirmed. MAXWELL, J., concurs.


[MARCH TERM, 1873.]



PERRY V. SMOOT et als.

S. made his will in 1858, and died in July, 1867. He gave to his daughters S. and

C. each ten thousand dollars, to be realized out of his estate by sale or otherwise, as early as practicable after his decease ; and directed his executors to invest the said legacies in the bonds of the State of Virginia, in the names of S. and C. The residue of his estate he gave to his two sons, who were his partners in business, and who he appointed executors. When S. died his daughter C. was over twentyone years of age, and capable of understanding her rights. The executors did not invest the $10,000 left to her, but retained it in their hands with her knowledge, and as they aver, by express agreement with her, and

paid her the interest regularly upon it. Held, in the condition of the country from 1867 to 1870, the execulors were well justified in not investing the money in state bonds.

CHARLES C. SMOOT, a citizen of Alexandria, died in July, 1867, leaving a will which was executed in 1858. For years before the date of his will and until his death he was engaged in a mercantile business with his two sons, Charles C. Smoot, Jr., and John B. Smoot, as partners. By his will he gave two houses and lots in the city of Alexandria to his daughter Mary Ann, the wife of John Perry, and he gave to his two unmarried daughters, Susannah Adelaide, and Catherine Florence Smoot, each the sum of ten thousand dollars, to be realized out of his estate by sale or otherwise, as early as practicable after his decease; and he directs his ex

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