Page:Harvard Law Review Volume 10.djvu/275

RECENT CASES. 249 Equity — Jurisdiction in Case of Mental Disability. — ^^/o', that equity will entertain a suit by the next friend of a person of weak mind, incapacitated by age or infirmity, though not in such condition as to be adjudged a lunatic by the special tri- bunal provided for such purpose, to set aside conveyances obtained from such person by the undue influence and fraud of others, although the nominal plaintiff denies the incapacity and repudiates the acts of those bringing the suit. Edwards v. Edwards, 36 S. W. Rep. 1080 (Tex.). The jurisdiction of equity to protect the property of persons of weak mind, who have not been found to be non compotes mentis, is well established. Li^ht v. Light, 25 Beav. 248. The chancellor will reinstate a bill by next friend, to set aside a convey- ance obtained by fraud from one of weak mind, although the grantor has caused the bill originally filed for that purpose by him to be dismissed. Oruing's Case, i Bland Ch. 370. The principal case seems to have carried this wholesome doctrine of equity to its fullest extent by applying it to a case where there has been a distant adjudication against the mental unsoundness of the grantor. Insolvency — National Banks — Effect of Collateral held by Credi- lORS. — A creditor of an insolvent national bank, whose claim was secured by col- lateral, made proof against the bank to the full amount of his claim. Held, that subsequent collections made by the creditor on his collateral need not be deducted from the amount of his claim previously proved against the bank. Merrill . First National Bajik of Jacksonville, 75 Fed. Rep. 148. Except where the matter is regulated by bankruptcy statutes, this case represents the general law. The court follow the case of Chemical National Bank v. Armstrongs 59 Fed. Rep. 372, where it was held that it made no difference whether collection on the collateral took place before or after proof of the claim. Although there is a con- flict of authority on collections made before proof, the result seems correct. See 8 Harvard Law Review, 6r, and Allen v. Danielson, 15 R. I. 480. There seems to be an analogy between the principal case, and cases like In re Souther^ 2 Lowell, 320, and Ex parte de Tastet, i Rose, 10, where it is held that full proof may be made against a party primarily liable on a bill or note, although there has been part payment by one secondarily liable. In the last cases the security is personal, while in the principal case the security is real. Insurance — Change of Ownership. — Held, that the purchase of the fee by a mortgagee is not such an alienation as will invalidate an insurance policy taken out by the mortgagor for the benefit of the mortgagee with condition against "change of ownership." Dodge v. Hamburg- Bremen Fire Ins. Co., 46 Pac. Rep. 25 (Kan.). In general a mortgage is not considered an alienation within the meaning of such conditions. May on Ins., § 269. It is evidently considered that the question whether the mortgagor or the mortgagee has the title is immaterial in applying the condition. But when the mortgagee takes possession, or acquires full ownership under foreclosure, it is generally thought that an alienation is effected. Macomber v. Cambrid^^e Ins. Co., 8 Cush. 133. This seems the correct view. In Bragg v. Ins. Co., 25 N. H. 289, where the mortgagor insured for the benefit of the mortgagees, as here, it was held that as the interest remained with the party liable for the premiums, a foreclosure was not an alienation ; but that decision seems as unsatisfactory as that in the principal case. Insurance — Interpretation of Conditions. — A fidelity insurance policy re- quired that particulars of loss be furnished within three months, and that any action be brought within twelve months from discovery of loss. A defalcation was discov- ered while the assured, a national bank, was in the hands of a receiver, and the accounts were being taken by the comptroller. When the bank was restored, the time of limita- tion under the policy had elapsed. Held, that the omission of the receiver to sue would not be imputed to the bank; and that the failure to perform the condition, having been caused by the receivership and resulting from the very event insured against, would not prevent recovery. Jackson v. Fidelity Co., 75 Fed. Rep. 359. Throughout the receivership, the corporate entity existed as before (High on Re- ceivers, 3d ed., § 358) ; so whoever may have been the officer to sue, an action was ])ossible from the discovery of the defalcation. And as full particulars mean only the best under the circumstances (Porter on Ins., 2d ed., 191), both conditions could have been complied with notwithstanding the receivership. If, however, full particu- lars were necessary, and to obtain them within the time became impossible, while it has been held that an express time must give way to a reasonable time (May, Ins., 2d ed., § 217 ; Tripp v. Society, 140 N. Y. 23), it must be remembered that the contract was made by the parties and not by the court, and recovery was contemplated for such damage alone as might not be excluded by the conditions. Routledge v. Bitrwell, i H. Bl. 254; Johnson v. Ins. Co., 112 Mass. 49.