Wells v. Riley. that can be established on this subject. She had a patent from the United States, and had it for eight or ten years before this action was brought. She had been a settler upon the land and made a showing to the satisfaction of the land office, and received a certificate that she was entitled to pre-emption—the pre-emption commencing thirteen or fourteen years ago. That she has color of title, therefore, there cannot be a doubt. It seems to be supposed that the question of good faith is precluded by the conclusion that she must have known that the title would be controverted. It cannot be contended, I think, that she did not make the improvements in good faith, believing that she had title. It may be questioned whether such notice as this suit, is, under the circumstances, sufficient evidence to convince a reasonable person that his title may be defective. Throughout all this contest, up to the time that the case of Wells against Riley was decided in the United States supreme court, I think the fair, reasonable view of it was that she was the owner of this property. Certainly up to the time of that decision, or to 1861, plaintiff had no title to the property. He claims under the land grant of the Des Moines navigation company, and the supreme court of the United States has decided that the act of 1846 conveyed no lands to the state above the Raccoon Forks. The plaintiffs here in this action, according to the words of the decision, "must evidently rest their claim to title on the joint resolution of 1861." They cannot claim title previous to the time the company took its title in 1861 or 1862. Some of the parties claim that rents should be allowed from 1857, and prior. I do not know how many cases of this character there may be, but if there is to be a contest about improvements before the court, some questions will arise which cannot be settled in this case. Wilkinson v. Union Mutual Ins. Co. As it is, my own conviction is that the defendant is entitled to pay for the improvements she has made. As to the valuation of the improvements in this case, I must say that I have no doubt but that they are fair and just. As to the value of the timber cut, and the taxes paid, there is no controversy. The value of rents presents a question difficult always to determine. The books are full of decisions of judges modifying and varying the rules by which the value of improvements and rents are to be estimated in cases of this kind, and to deduce a rule which would be applicable to all cases is impossible. My own judgment is that in this case it is probable that enough has been allowed for rent. The commissioners were selected by the parties and appointed by the court, and I have no doubt they have undertaken to do what was right in the matter. I do not think there is cause for the court to set aside the report. I shall, therefore, overrule all the exceptions. EXCEPTIONS Overruled. WILKINSON V. UNION MUTUAL LIFE INSURANCE COMPANY, of Maine. 1. Where a life insurance policy contains a condition that if the statements in the application shall be found in any respect untrue, it shall be void, untrue answers to specific questions avoid the policy, although relating to matters not materially affecting the risk, and not made with a view to deceive the company. [See Swick v. Home Insurance Company, ante, 160.] 2. The local agent of a foreign company in taking and filling up blank applications entrusted to him is ordinarily to be taken as the agent of the company, and not of the assured, and the company, if true answers to the questions in the application be made by the applicant, will be estopped to take advantage of the mistakes and omissions of the agent in reducing the answers to writing, if the applicant is without fault. THIS was an action on a policy of life insurance. The defense was the alleged falsity of certain answers in the application for the insurance. The jury found a special verdict, the general nature of which appears in the opinion. A report of the same case in the supreme court of the United States, more in detail, will be found in 13 Wall. 222. The defendant moved for a new trial, in overruling which the following opinion was given. Geo. W. McCrary, John H. Craig, and W. J. Cochrane, for the plaintiff. Gillmore & Anderson, for the defendant. DILLON, Circuit Judge.-I think the motion for a new trial ought to be overruled. The special findings of the jury dispose of every defense on its merits against the company, except the one relating to the age of the mother of the assured at the time of her death. The special verdict on that subject is fully warranted by the evidence, and being so, the company is justly estopped to make the defense that the applicant misrepresented or untruly stated the age at which her mother had died. In propounding the questions to the applicant, and in taking down her answers, the local agent acted for his company, and if the applicant made truthful answers, as found by the jury, and the agent wrote down the answers on that subject, which appear in the application, without the knowledge of the applicant, and without being misled by her, acting upon his own judgment, why should not the mistake of the company's agent be visited on the company, rather than on the plaiutiff? I am aware of the conflicting views Wilkinson v. Union Mutual Ins. Co. which different courts have held on this subject, but the one above indicated is well supported by adjudged cases, and is the one towards which, as it seems to me, the judicial sentiment of the country is rapidly tending. Rowley v. Insurance Company, 36 N. Y. 550; Viele v. Insurance Company, 26 Iowa, 9; Miller v. Insurance Company, 3 Iowa, 216, S. C. 7 Am. Rep. 122, and cases cited in note; Geib v. Insurance Company, 1 Dillon, C. C. 443, 449; Wilkinson v. Conn. Life Insurance Company, 30 Iowa, 119, which was an action by the present plaintiff on another policy. JUDGMENT FOR PLAINTIFF. Nore.-In Hiatt, admr. &c. v. The Mutual Life Insurance Company of N. Y. tried at the May term, 1873, the defense was suicide, to which the plaintiff replied, insanity. The court ruled: 1. That it was good cause of challenge to a juror that he considered the fact of suicide as conclusive evidence of insanity. 2. That the burden of proof to establish the insanity was upon the plaintiff. [See Swick v. Home Insurance Company, ante, 160, 166, and cases cited]. 3. As to the kind and degree of insanity necessary to be shown to entitle the plaintiff to recover where the assured took his own life, the court followed Terry v. Insurance Company, 1 Dillon, C. C. R. 403, affirmed, 15 Wall. 580. There was a verdict and judgment for the defendant. I. N. Kidder, and Gatch & Wright, for the plaintiff. Holmes & Reynolds, and Polk, Hubbell, & Goode, for the defendant. INDEX. ACCOMMODATION INDORSER. See Bankrupt Law. 534, 538. Dower. Defective may be validated by legislative action. Wright v. Tay- lor, ACTION. See Various Heads. 23. 1. Against owner of steamboat for loss of cargo by fire caused by negli- 14. 64, 259, 269, 270. 2. By servant against the proprietor of dangerous machinery, 3. Under bankrupt act. See Bankrupt Law. 4. Against municipal corporations. See Counties; Municipal Corpora- 5. Against railroad companies. See Railroads. ACTS OF CONGRESS. See Statutes. ADJOURNMENT. See Bail. ADMIRALTY. 1. JURISDICTION OF DISTRICT COURT.-The district court, as a court of Same. The respondent held to be in fault for failing to keep such 3. FOG.-DUTY OF VESSEL NAVIGATING IN.- The duty of vessels nav- 146. |