The times. [volume] (Richmond, Va.) 1890-1903, 1897-03-19

Va. 10.
BURDEN or PROOF.
Morotock ms Co. VS.. Tostoria Novelty
Company. Affirmed. opinion by taui-
son. j.
This was fire insurance case. and the
dcfenccs GnallD relied on were fraudu-
lent representations in procuring policy
and excessive and fraudulent valuations
Of property in application.
The controlling question is upon whom
does the burden OF proof lie 20 estto-
lish the truth or falsity OF the represen-
tai!ous
Held While the plaintiff iu am action
on u contract must aliege and prove per
Torrance OF conditions precedent 10 the
existence OF the contract dt there are
any. and must alese an exception In
The body OF the contract and exclude IL
from the assignment of the breach OF the
contract. be is not required 10 aliege
conditions subsequent. and prove perfor-
nance OF them. Ncr Is De required 10
aliege mere warrantics made by him Of
cNiNs'ins conditions. and negative
breach OF such varrautics. These are
not conditions precedent in legal mean
ing. 4 condition precedent calls FOR the
performance OF some act on the hap
peuing OF some event after the terms OF
the contract nave been agreed upon. be
fore tine contract shall take effect The
contract il made in form but does not
become operative until some future speci-
fed act is performed. or subsequent event
occurs. Piedmont Life Insurance Com
plny US. Ewing. - l.. ). 3l1: Rcdman vs..
Insurance Company. 80. Wise. il.
warranty is different and mo- case is re-
called which holds directly that a war
rauty Of the existence of a certain state
of facts az the time OF making con-
tract Is "a condition precedent 10 the con-
tract. nor amy rule OF law upon which
such au adjudication could bee upheld.
Though the breach of such "A warranty
forfeis the contract thc contract by its
terms takes effect in praesenti. subject
To bee defeated hy proof of breach Of tie
warranty Unless the application contain
conditions precedent. u IS not incumbent
ON the plaintiff &c set out and prove
IFS contents. nor 10 prove performance
OF amy of its conditions or the truth OF
its statements.
o. The ends of justice will boz best pro-
NOTED by requiring the plaintiff 10 show
afiirmatively the performance of condi-
items precedent proper leaving II TO the
defendant 90 aver and prove breaches OF
mere warrlnties and conditions subse-
quent. Certainly the practice will be
in accord with the settled rules OF plead
ing and evidence. u would be- intolera-
bic 90 require the plaintiff 10 prove ar
nrmativciy. Zoo the first instance. the
truth Of every statement usually con-
tanned in AN application for insurance
~ the situation and cOn".lon e. the
property insured. May ys. Buckeye ms
Co.. % Wise 81.
O. To avoid The policy. the over-valua-
zion must be- intentional and fraudulent
and not give fair expression az the
honest judgment of the assured The
fact that the property is considerably
over-vaued does not of itself establish
fraud Opinions differ widely as 20 the
value 4 the same property. and 20 hold
that am 0ver-valuation. innocenty made
VIII work q forfeiture Of the policy would
ha pregnant Of mischief and ahhcrront 20
every right-thirklng mind. Lynchburg
Fire Insurance Co. VS.. West. ~ Va. SO.
ALLOWANCE FOR IMPROVEMENTS
Hallou, &c., vs.. Ballou. Reversed.
Opinion by Judge Harrison.
o.. Ballou and his nephew became joint
owners of lot in Lynchburg improve
ments were made on part OF the l0t
aud occupied by both parties tin 1891
when the uncle died.
PARTITION suit between nephew and
other heirs # G.. Bail0u. Dispositions
taken and commissioners report that $500
OF improvements had been put on the lo;
OF which nephew paid only $50, that e.
Ballou's estate was entitled TO credit
for excess. and i'm the same proportion
10 the rents since his death. Trial court
dtd not sustain this view but held that
the estate took nothing for improvements.
and the nephew WAS entitled to one-hau
the Joint property. including improve
ments. and one-half the rents, and de-
creed sale Of the property. because not
susceptible Of division boz kind.
Held. The decided prcpondegance %
authorities holds that where one tenant
iu common lays out money iu improve
ments on the estate. though 30 does nat I'D
strictness constitute Zen thereon, ye'
equity VIII not grant partition without
FIRST directing an account and a suitable
compensation. It is not necessary Tor
him % show the assent OF his co-tenants
20 such improvements. or promise 70
contribute 10 the expense nor Pre-
ylous request % Join IN The improvements
and refusal The allowance Is made NOT
matter or lrall il-Atf NN[ pAiftf
from the desire of the court 20 do Jus
tce. and therefore the compensation
VIII De estimated as 20 inhict no in
Jury on the co-tenant against whom the
improvements are charged. Robinson -.
Mcdonald. 81 Amer Decis.. 4s2. and cases
cited.
2 The contention that the claim for i'm
provements is merely a personal debt. and
that I'm the absence Of a contract or any
agreement FOR 4 lien. the only ground
~ recovery j. an implied contract. barred
al law. which equity follows. Is rot tena-
bic. There T. no Obligation on CO.
tenant TO contribute. nor can CO.
tenant recover from his fellow tenants
share OF the cost Of improvements In the
absence Of express assent or such cir
crmstances or dealings between them as
will convince the court OF an understand
ing 10 that effect. The right TO compen
satlon does not exist until the suit for
o,rtition is brought. and the right 10
nartifion arises whenever the parties
choose 10 exercise II. Statutes OF llmita'
lion have no application TO suits for par
tition. nor TO the equity for. compensa-
ton which arises only when partition Is
asked for.
The rule as 10 repairs IS different.
When repair OF joint property Is neces-
xarr Tn its use and preservation. one joint