JONES AND ABBOTT V. INSURANCE COMPANY.

[90 TENNESSEE, 604.]

FIRE INSURANCE-PREMIUM MUST BE PAID BACK

RISK NEVER AT

TACHED.— Where no risk has ever attached under a policy of fire insurance, the insurer must return the premium paid, provided the assured has been guilty of no fraud.

THE opinion states the case.

Webb and McClung, for the complainants.

Washburn and Templeton, for the respondent.

LURTON, J. The fire policy issued by the defendant company on lumber owned by the complainants contained in its written part a warranty that a continuous clear space of 150 feet should be maintained between the lumber insured and the saw-mill, dry-kiln, or any wood-working or manufacturing establishment, and that said space should not be used for the handling or piling of lumber thereon. This warranty was untrue when made, and untrue when the insured property was burned, by fire communicated from a saw-mill within the space provided for. The contract of insurance is a conditional one. If no risk attaches, no premium, in the absence of fraud, is earned. Where the risk never attached, and no risk was ever run, the premium is to be returned, in case it has been paid, and the assured was guilty of no fraud: May on Insurance, sec. 4.

The language of Lord Mansfield, in Tyree v. Fletcher, Cowp. 668, was, that "where the risk had not been run, whether its not having been run was owing to the fault, pleasure, or will of the insured, or to any other cause, the premium shall be returned."

The facts of this case show no intentional fraud on part of assured, and his premium, never having been earned, must be returned.

Other points in the case were disposed of orally.

FIRE INSURANCE - RESCISSION Of Contract — REPAYMENT OF PREMIUM. Where any of the material representations in a fire insurance policy are false, the insurer can cancel the same by a tender of the premium and notice of cancellation: Rankin v. Amazon Ins. Co., 89 Cal. 203; 23 Am. St. Rep. 460. Unless the premium is returned, the policy will remain in effect: Scott v. Sun Fire Office, 133 Pa. St. 322; Quong Tue Sing v. Anglo-Nevada Ass. Corp., 86 Cal. 566; Pangborn v. Continental Ins. Co., 67 Mich. 683.

GAY V. STATE.

[90 TENNESSEE, 645,]

NUISANCE-PARTY LIABLE ONLY FOR SUCH, AS RESULTS FROM HIS OWN Аст. A nuisance, to be indictable, must be the natural and direct cause of the act of the party charged with maintaining it. It is therefore error, upon the trial of an indictment for maintaining a nuisance in keeping a hog-pen in a filthy condition, for the court to charge that "if the jury find that the smell created by the defendant's pen was not sufficient within itself to constitute a nuisance, yet it contributed, with other pens in the neighborhood, to forming a nuisance, the defendant would be guilty."

THE opinion states the case.

W. C. Cain, for Gay.

Attorney-General Pickle, for the state.

LEA, J. The plaintiff in error was indicted and convicted of a nuisance in keeping and maintaining a hog-pen in a filthy condition. There were several witnesses who proved it was a nuisance. There were several who proved that the pen was kept remarkably clean, and was no nuisance; and several proved that if there was a nuisance, it was caused by a number of hog-pens in the neighborhood.

His honor, among other things, charged the jury: "If the jury find that the smell created by the defendant's pen was. not sufficient within itself to constitute a nuisance, yet it contributed, with other pens in the neighborhood, to forming a nuisance, the defendant would be guilty."

This was error. The defendant can only be held liable for the consequences which his act produced. The nuisance complained of must be the natural and direct cause of his own act.

NUISANCE BY SEVERAL LIABILITY OF EACH. Where a nuisance is maintained by several persons acting independently, each is liable only for the separate injury committed by him: Chipman v. Palmer, 77 N. Y. 51; 33 Am. Rep. 566, and note; Simpson v. Seavey, 8 Greenl. 138; 22 Am. Dec. 228, and note. So a landlord is not liable for a nuisance maintained by a tenant: Commonwealth v. Wentworth, 146 Mass. 36. Compare Simmons v. Everson, 124 N. Y. 319; 21 Am. St. Rep. 676, and note.

ROBINSON V. COULTER.

[90 TENNESSEE, 705.]

INFANT'S DEED WITHOUT CONSIDERATION VOID. - An infant's deed of land, made without consideration, or for a merely nominal consideration, is absolutely void, and vests no title in the grantee.

COVENANT OF SEISIN IN DEED, WHEN BROKEN. A covenant of seisin in a deed of land is broken as soon as made, where the vendor, at the time of the conveyance, had no other title to the land than that acquired by him through the deed of an infant, made for a merely nominal consid. eration.

Covenant of Seisin, Grantee may Treat, as WHOLLY BROKEN WHEN. - Where a deed with covenant of seisin purports to convey the entire estate, and the title fails as to an undivided interest therein, the grantee may elect to treat this as an entire failure of title, and is entitled to recover the full value of the property.

SUIT for breach of covenant. The opinion states the case. Lewis Shepherd, and Spurlock and Latimore, for Robinson. Barr and McAdoo, for Coulter.

SNODGRASS, J. Complainant sold to defendant a tract of land containing 640 acres at the price of ten thousand dol lars, taking in payment therefor property at an agreed valuation. Among the property so taken was a lot in the city of Chattanooga, on Magazine Street, valued at four thousand dollars. The defendant executed to complainant a warranty deed for this lot, covenanting that he was seised in fee thereof, and had a good right to convey it. The deed was executed February 23, 1888.

This suit is to recover damages to the amount of the value of the lot on account of breach of covenant of seisin. The chancellor decreed in favor of complainant, and defendant appealed.

The only error assigned material to be noticed is that respecting this covenant. It is insisted that it was not broken. The facts on this point are these: Coulter's title was derived through one Cady, who had purchased the lot of Mrs. Julia Bradt in 1882. At the time of this purchase by Cady and conveyance by Mrs. Bradt, the legal title was in her children, by descent from Morris Bradt, her deceased husband. There were six of these children, all minors. On December 16, 1887, these children joined their mother in another deed to Cady. In this, they recited the former deed of Mrs. Bradt; that it was a warranty deed, and that her vendee had conveyed, and that they are desirous of protecting their

mother; and add that, in consideration of the premises, and the sum of one dollar paid, they quitclaim the property to Cady.

Five of the children joining in this deed were minors. One of these has since, on coming of age, conveyed to Coulter. The other four have made no other conveyance, and unless the deed of December 16, 1887, conveyed their interest, they still own four sixths of the lot in controversy. The material question, therefore, is the legal effect of this deed. If it is a voidable deed merely, as insisted by defendant, one which no one has a right to avoid but the minors after arrival at age, it vested their interest in their vendee, Cady, and that interest subsequently passed to the defendant. In this event, the covenant of seisin was not broken when made, because a voidable deed is one which passes the title of the vendor, and while it remains in force, is a valid conveyance, and vests in the vendee a title in fee the character of estate of which he covenants that he is seised: Pollard v. Dwight, 4 Cranch, 431; White v. Flora, 2 Over. 431.

If the deed was void, it passed no title, and therefore, as to two thirds of the land, the defendant was never seised in fee, and the covenant was breached as soon as made.

The question in this state is settled. The rule governing the contracts of minors, long established, is, that they are either void, voidable, or valid, according as they shall appear prejudicial, uncertain, or beneficial. If to his benefit, -as for necessaries, they are valid; if of an uncertain. character as to benefit or prejudice, they are voidable only, at his election after coming of age: Wheaton v. East, 5 Yerg. 41; 26 Am. Dec. 251; McMinn v. Richmonds, 6 Yerg. 9; McGan v. Marshall, 7 Humph. 121; Langford v. Frey, 8 Humph. 446; Scott v. Buchanan, 11 Humph. 468.

The cases above referred to in 5 Yerger, 7 Humphreys, and 11 Humphreys were cases of conveyance of land, absolutely and in mortgage, for a valuable consideration, and these and all such deeds held to be voidable only, at the minor's election after arrival at age.

To the same effect is Barker v. Wilson, 4 Heisk. 268.

In Scott v. Buchanan, 11 Humph. 473, it was shown that this was the rule as to the minor's conveyance of land; but that a different rule prevailed as to his voidable conveyance of personalty, which he might avoid during infancy. And in the case of McGan v. Marshall, 7 Humph. 125, 126, it was

said that the court cannot look outside the face of the deed to determine whether the deed was void or voidable, but the question must be settled as it there appeared.

These were instances where a valuable consideration appeared to have passed, and the deeds were held voidable only.

The question came collaterally in issue in Langford v. Frey, 8 Humph. 446. There a witness had released his interest in an estate in order to remove objection to his competency. In the testimony it was disclosed that he was a minor, and the court held the release absolutely void, and the witness was held to be incompetent.

Finally the direct question arose on a void deed, and the court held that a deed where minors, without consideration, quitclaimed their interest in the land of a deceased sister to her surviving husband - who had paid for the land and given it to her was absolutely void; and they were permitted to release it during infancy, a right which would have been denied them had the deed been merely voidable: Swafford v. Ferguson, 3 Lea, 292; 31 Am. Rep. 639. This case was cited and approved, and the rule again asserted, in Scobey v. Waters, 10 Lea, 557. It is therefore settled by a long line of decisions in this state that such a deed as that we are considering a minor's release and quitclaim without consideration-is absolutely void.

It follows, of course, their deed being void, their title to four sixths of this land had not been conveyed to Cady, and never passed to defendant in subsequent conveyance.

The complainant had the right to elect to treat this as an entire failure of title, and is entitled to recover the full value of the lot, the effect of such decree revesting title in the defendant, who will also be entitled to restoration of possession and reconveyance: Kincaid v. Brittain, 5 Sneed, 121– 125.

The decree is affirmed, with cost.

VOID. - An infant's voidable: Swafford v.

INFANTS-DEED OF, WITHOUT CONSIDERATION, deed without consideration is void, aud not simply Ferguson, 3 Lea, 292; 31 Am. Rep. 639, and note. An infant cannot be bound by a transfer of his property which is not for his benefit: Blooming dale v. Chittenden, 74 Mich. 698. The plaintiff who seeks to set aside a deed made during infancy must establish his infancy and that no consideration passed: Wade v. Love, 69 Tex. 522.

COVENANT OF SEISIN IN A DEED. WHEN BROKEN. A covenant of seisin in a deed is broken if the grantor did not have a good title to the