Page:Harvard Law Review Volume 12.djvu/589

RECENT CASES. 5^9 Evidence — Malice — Testimony of Party. — In an action on an attachment bond for maliciously suing out an attachment, defendant was not allowed to testify that in suing out the attachment he had no ill will or malice. Held, that the testimony was rightly excluded. Hamilton v. Maxwell, 24 S. Rep. 679 (Ala.). Although " malice in law " is merely the negation of justification or excuse, yet even if the defendant acted without probable cause, he still has an excuse if he did not act in bad faith. Mitchell . Jenkins, 5 B. & Ad. 588; 14 Law Quarterly Review, 130. It is therefore material to determine whether he entertained ill will at the time of the attachment. Alabama has held that parties should not be allowed to testify to uncom- municated motives of their own conduct. Heninsf v. Skaggs, 62 Ala. 180. However, the general doctrine in such cases is that direct testimony of intention should be re- ceived. Jefferds v. Alvard, 151 Mass. 94. It is true that the evidence is subject to grave suspicion, but this should go simply to determine its weight and not its admissibility. Now that parties to an action are allowed to testify, none of the excluding rules forbid the introduction of such testimony, and it would seem better to admit it and leave its worth to be determined by the jury. Life Insurance — Assignment of Policy — Insurable Interest. — Held, that a valid policy of life insurance may be assigned to a person having no insurable inter- est in the life of the insured. Steiiiback v. Diepenhrock, 52 N. E. Rep. 662 (N. Y.). Contracts of insurance entered into by persons who have no insurable interest in the life of the insured are regarded as wagering contracts and therefore void on grounds of public policy. But the authorities generally support the principal case and hold that a policy valid in its inception may be assigned to one without such interest. Mutual Life Ins. Co. v. Allen, 13S Mass. 24. Some jurisdictions have held that the same pub- lic policy that invalidates a contract of insurance made by one who has no insurable interest invalidates the assignment of a policy to such person. Carpenter v. U. S. Life Ins. Co., 161 Pa. 9; Price v. Supreme Lodge K. of II., 68 Tex. 361. And these cases have the support of a dictum of the Supreme Court of the United States in Wamock V. Davis, 104 U. S. 775. The tendency of the recent decisions in these States, how- ever, is to hold the assignment valid, but to consider it, whenever possible, as having been made for purposes of security merely, thus compelling the assignee, after satisfy- ing his claim, to hand over the proceeds of the policy to the representatives of the insured. Schovfield v. Turner, 75 Tex. 324. Troperty — Adverse Holding — Interruption of Possession. — During the occupancy of a tenant in adverse possession of land the premises were sold at a tax pa^j and conveyed by the vendee to the demandant, but the actual possession was un- disturbed. Held, that this was not an interruption of the adverse holding. Harrison V. Dolan, t^2 N. E. Rep. 513 (Mass.). Though there are few decisions as to the effect of tax sales upon the continuity of adverse possession, the better view seems to be that they act as an interruption. Daveis v. Collins, 43 Fed. Rep. 31. The present case suggests the other view, that a mere change of title without interruption of actual possession, in order to break the continuity, must be one that puts it where it is above the Statute of Limitations, as in the sovereign. For example, forfeiture to the State, for taxes or otherwise, of land held in adverse possession is an interruption of the adverse holding, although the actual possession is undisturbed. This is because the Statutes of Limitations do not generally run against the State, and, therefore, the moment the State obtains its legal title, there is a breach in the continuity of possession. Armstrong v. Morril, 14 Wall. 120; Braxton v. Rich, 47 Fed. Rep. 178. The present case is undoubtedly correct, however, as by the old rule of the common law, in force at that time in Massachusetts, but since changed by statute, the purchaser at the tax sale, not being in possession, could convey no valid title to the demandant as against the tenant. McMahan v. Bowe, 114 Mass. 140. Property — Assignment of Lease — Covenants. — A lessee for years of real estate agreed to convey his interest to the plaintiff, who entered on the land and paid rent directly to the lessor. Held, that the plaintiff is not entitled to enforce a covenant made by the lessor to the lessee, his executors, administrators and assigns. Friary, &*c. Breweries v. Singleton, [1899] ^ ^^- ^- ^^• The ]3ropriety of the above decision can scarcely be questioned. The situation of the parties is, however, a novel one, and there appears to be very little authority on point. It has been decided that an equitable assignee of a lease is not liable to the lessor on the lessee's covenants. Cox v. Bishop, 8 De G. M. & G.815. The plaintiff in fact cannot stand in the relation of a tenant to the defendant although he has been paying him rent, for there is still an unexpired term in the original lessee. While there is no legal relation between the parties, the plaintiff is justly entitled to the bene- fit of the lessor's covenant. His appropriate remedy is in equity by obtaining an actual assignment of the lease.