The Saint Paul globe., 1896-07-14
BANK WINS ITS SUIT
INSURANCE COMPANIES MUST PAY
THEIR RISKS ON THE BURNED
ELEVATOR.
n P. CLARKE CASE MODIFIED.
SWIFT COUNTY COURTS DECISION
is CHANGED BY THE HIGHER
TRIBUNAL.
TWO OTHERS ARE REVERSED.
The Appellate Court Continues to
Overturn the Conclusions of
the District Judiciary.

Judge Canty, in the Supreme court
yesterday, handed down number of
decisions. One covers the two suits of
the bank of Devils Lake against the
Lancashire and Home Insurance COM
panies. A grain elevator burned, and
the loss was adjusted and the salvage
sold by the adjusters Of the majority
of the companies carrying the risk.
The companies u these suits sent an
adjuster later, and he acquiesced, at
least, il. the action taken before his ar
rival. The companies, however, re-
fused to pay. The court holds, how
ever, that the adjuster practically rat
ified the action of the other adjusters,
and that his action binds the compa-
MES The syllabi of the decisions are
as follows:
First National Bank Of Devils Lake, re-
spondent, VS.. Lancashire Insurance Com
pany appellant, First National Bank Of
Devils Lake, respondent, VS.. Home lnsur-
ance Company, appellant.
The insured held policies issued by num-
Der of different insurers; loss by hre oc-
CURED; the adjusters of two Of these in
surers came upon the scene and by the
consent of the insured, sold the savage; the
next day the adjuster of the defendant in
surer came also upon the scene and had
conversations with the insured; in actions
on the policies of the latter insurers, held
from the evidence as to these conversations
and the other evidence in the case, the jury
was justified in finding that the latter ad-
juster ratified the acts of the other ad1us-
ters in selling the salvage; that under the
terms of the policy he is presumed to have
had authority to make arrangements for the
sale of such salvage, and consequently to
ratfy the sale already made, and that (fol-
lowing First National Bank Insurance
Company, &C N. w. r. 1867, retaining the
proceeds Of such sale or neglecting to see
that such proceeds were promptly returned
to the insured after the discovery by defend
ants that the policies in suit had been for
feited before the fire, waived such forfeiture.
Orders affirmed. -Canty, j.
Sam R. Eide, respondent, VS.. Nehemiah P.
Clarke, appellant.
The plaintiff, at the commencement of the
first action to determine adverse claims under
the statute, h-ld lien on the land in queS ion
which he claimed had at that time ripened
into a title but which in fact had not; the
case was tried the court so found and or
dered his complaint TO be dismissed; there
upon he moved for additional findings setting
out the facts out of which his lien arose and
declaring the same valid lien on the prem
1ses, which findings were allowed and judg
ment ordered accordingly; in the judgment
entered it was adjudged that he had valid
lien on the land, but no other interest in 1t;
between the time of trial and the time of the
application for additional findings, his lien
ripened into title, which cut off the inferior
lien Of defendant, but this lien was by the
Judgment adjudged to be valid and subsequent
to plaintiffs lien.
In subsequent action brought by plaintiff
to determine defendants adverse claims
Held the plaintiffs lien having given him
no right to possession and having failed to
prove title, any further question as to it's
legality or priority wholly foreign to the
first action, but injected into it and voluntar-
lily litgated by the parties, it was also a
question to determine which no independent
action could be maintained between the par
ties; 1t was therefore not in the nature of an
amendment which related back to the COM
mencement of the action thus prematurely
he nTcfdn rnd
ceeding commenced at the time the application
was made for additional findings (at which
time plaintiff had no lien, but had the title
In It's stead, the Judgment is valid, though
irregular and proceeding commenced at the
time the APPLICATION made for additional
findings lat which plaintiff had no lien, but
had the title in its stead. the judgment is
valid. though irregular, and whether 1t speaks
from the date of Its entry or only from the
time OF such application, it is in either case
an adjudication that plaintiff had no title to
The land, and estops him from claiming that
he had such title that defendants lien is
cut off by the same.
2. Plaintiff being in possession at the time
the first action was commenced had right
under the statute, though he had no title to
maintain the action for the purpose of deter
mining the validity of defendants claim of
Hen, but 1t was foreign to the action to 90
further and determine the priority of the liens
on a title under which plaintiff did not hold
or claim to hold. Order modified. Canty j
Rochester Lodge No. 21, Ancient Free and
w. Graham, Edward A. Schwartz ct al.
appellants. '
A. was the owner OF q life estate in a city
lot, and B. was the owner of the reversion.
they were erecting the first and second
stories of a building on the lote and c. nm
der a license from them, was erecting the
third story; thereupon A. and B. Joined In
q conveyance in fee to C. of such third story
In the conveyance, B. covenanted to build
and maintain forever the roof of the build
Ing, and y covenanted to pay perpetual
rent of $25 per annum: B. built the roof
and thereafter A. and B. Joined in a con-
yeyance in fee of the rest of the premises
except the third story, to certain of the de-
PENDANTS; in time the roof became decaved
and G. was compelled to erect a new one
and brought this action to have the whole
cost Of the same declared a lien on the in
terest Of such defendants in the buiIdinp
and lot; A. is still living.
Held, A. not having Joined in the cove
nant to maintain the roof the covenant of
B. to do so, does not run with the life as
tate of A. or incumber the same either IN
law or equity, with the whole burden of
maintaining the roof, that such defendants
are still enjoying possession under that life
estate and not under the reversion and SO
fes as plaintiffs present claim is concerned
It can only compel contribution from sucb
defendants of their equitable share of tha
cost OF maintaining the roof
Distinction noted between convevanoe a.,