!'EDERAL: REFORTER ,vol.
the truth.. At.'thetime of thE! these were lji:posseSsion of the lands occupied by them under the possessory orl.ginally acquired by Banks, ltnd,althougb, they have no title from the government of the United States, they are in a position to show that they have a better right to the lands than plaintiff. 'If the defendants were simply in possession as mere naked trespassers,' without any question of tenancy being raised, they could, in defense of such possession, attack the validity of plaintiff's title; for it has been held by the supreme court of the United States that in cases of this character, as in all other cases of ejectment, the plaintiff must recover upon the strength of his own title, and not upon the weaJrn,ess of defendants. Reynolds v. Mining 00., 116 U. S. 688, 6 Sup. at. l,l.ep. 601; Doolan v. Carr, 125 U. S. 629, 8 Sup. Ct. Rep. 1228. The facts agreed upon with reference to the payment of taxes are irrelevant.andimmaterialras:they do not establish any title in either party.;, In pursuance of the stipulation and agreement of counsel, it follows from the conclusions reached, as to the law of the case, that in the case of Lakin v. Dolly the judgment heretofore entered in favor of theiplaintiff tnust be set aside, upon the payment by defenCfant of theoos1s of plaintiff inclwled in sald judgment, and judgnient, be entered.infavof of defendant for his costs ; and in Lakin v. Roberts et al. judgment must be entered in favor of· defendants for their costs. It iIJ so ordered.
WIGHT et al. v. ROYALWS. CO. (Circuit Court, E. D. Pennsylvania. November'29,1892.) No. 49.
FIRE INSURANOE-NoTICE OF CANCELLATION.
A fire insurance policy provided that the company coUld terminate the iWlIll'8nce,by giriug to the insured. or his representative," and refl1uQing a ratable proporti()n of the premium. Held, that the brokers who obtained the insurance were' not the insured's representatives to receive notice of cancellation. Gracev. Insurance Co., 3 Sup. Ct. H.ep. 207, 109 U. S. 278, followed.
At Law. Action by Wight & Lackey against the Royal Insurance Company to recover loss on a policy of fire insu:r,ance. On motion for judgment for want of.a sufficient affidavit of Rule absolute. . W. Willdlls Carr, for plaintiffs. Morton P. Henry, for defendant. Circuit . This is an action to enforce payment of loss undl'ir a policy of fire, insurance. The defense alleged by the affidavit is that the had been duly terminated 'before the loss occurred. . The policy contaiil$ a cltnceling clause as follows: '
"When, from any. cause, the company or its agents shall desire to terminate this insurance effected, it shall be lawful for the company or its agents so to do by notice to the insured 01' his representative, and to require this policy to be l."iven up for the purpose of being caneeled: provided, that in any such
IN RE DUNN.
caso the company shall refnnd to the insured a ratable proportion, for the un· expired time thereof, of the premium received for the iniurers."
It is not necessary to examine the affidavit of defense at length. This motion may be disposed of by accepting the statement upon defendant's brief, that"The facts in tbis case present but two points: (1) Were the brokers who obtained this insurance for plaintiff the proper parties to whom notice of can('ellation of the fisk should be given? (2) Was an actual tender of the return premium necessary'i"
I abstain from expression of any opinion upon the second of these points, because the conclusion which I have reached upon the first one is decisive of the case. In Grace v. Insurance Co., 109 U. S. 278, 3 Sup. Ct. Rep. 207, the clause of the policy, with respect to terminationof the insurance by the company, "on giving notice to that effect, and a ratable proportion of the premium," was substantially the same as in this case. Notice had been given to the person who had personally procured the insurance, and who, it was expressly Htipulated, should be deemed to be the agent of the assured "in any transaction relating to this insurance." The. supreme court viewed the question as one of interpretation of the contract, and held (reversing the court that notice to such person was not properly given. With respect to the construction of the similar clause contained in the policy upon which this action is based, counsel have not pointed out, nor do I perCeive. any difference in language which would justify a difference of interpretation, unless in the presence of the words, "or his representative," in the clause now under consideration, thus: "Notice to the insured or his representative!' This differp,nce does not, however, remove th.e present case from the authority of Grace v. Insurance Co. In my opinion, if-as that .case seems to me to decide-the brokers who obtained this insurance were nQt the plaintiff's agents to receive notice of cancellation, they were not his "representatives" for that purpose. I know of no ground upon which the brokers could be held to represent the plaintiff, unless as his agents. Rule absolute.
In re DUNNet a1.
AMOSKEAG NAT. BANK et
v. FAIRBANKS et
(District Court. D. New Hampshire.
BANKRUPTCy-COMPOSITION-VACATION FOR FRAUD-SETTING ASIDE DECREE -NOTICE TO CREDITORS.
Where a creditor of a bankrupt, without notice to, or a hearing of, creditors who had consented to a compromise. petitioned for and obtained an order vacating for frand orders of acceptance and confirmation. and for the recordation of the resolution of compromise. the bankrupt conrt. on petition of the creditors. will set aside such order as based in error resulting from lack of notice to interested parties, where the fact of such error does not fully ap·· pear of record. Where a bank. as one of the creditors consenting to the compromise. peti· tions to set aside the order for lack of notice. the fact that the depositions of two of the bank were taken in the bankruptcy proceedings seven
SAME-NOTICE TO CORPORATION-LACHES.