Conrad executed and delivered to Moore a land contract, by which he agreed to sell to Moore an undivided onesixth interest in the 2,484 acres of land subsequently deeded to McIntire. On the 22d of June, 1888, Conrad and wife conveyed to McIntire the land covered by the contract previously executed to Moore, and McIntire afterwards conveyed to Moore. We are satisfied that the reason why this conveyance was made to McIntire was that Mr. Conrad thought it might affect his title in some way to deed direct to Moore, by reason of the fact that Moore had sold the land to him as assignee in bankruptcy; but we are satisfied that the circuit judge was right in holding that there was not sufficient evidence of fraud, and in disallowing the claim asserted by Conrad to the purchase price of this land. It would serve no good purpose to review at length the testimony given upon this subject, but a careful examination of the record has convinced us that the circuit judge could have reached no other conclusion than he did.

2. It is claimed by the appellant that the execution of the discharge by Conrad relieved the mortgaged premises from the incumbrance, or that at least one-half the mortgage was discharged, and therefore the decree should have been against an undivided one-twelfth interest, instead of one authorizing the sale of the undivided one-sixth interest.

The assignment of the interest in the mortgage from complainant to Conrad was an assignment of "the undivided one-half of a certain indenture of mortgage, bearing date the 25th day of August, 1873, made by Charles F. Conrad and Mary E. Conrad to Arnold McIntire, * * with all and singular the premises therein men. tioned and described, together with one-half of the note or obligation therein also mentioned, and one-half of the moneys now due and one-half of the interest that may hereafter grow due thereon," and contained the usual power of

attorney, appointing the party of the second part (Conrad) true and lawful attorney of the party of the first part,

"To take all lawful ways and means for the recovery of the sum or sums of money now due and owing, or hereafter to become due and owing, upon the said note and mortgage, and, in case of payment, to give acquittance or other sufficient discharge as fully as I might or could do if these presents were not made."

As Conrad was himself the maker of the note and mortgage, the only payment that could be referred to by this provision was a payment which he (Conrad) should make to the person entitled to receive the same; and, as no payment was made to the holder of the remaining interest in the mortgage, it follows that the condition precedent for the authority to discharge was not fulfilled. Nor do we think that the effect of this assignment was to relieve any portion of the mortgaged property from the burden of the incumbrance. Page v. Pierce, 26 N. H. 317; American Wheel Co. v. Buggy Co., 89 Mich. 15. If interests had intervened after the giving of this mortgage, so that it might be equitable for Conrad to enforce the interest in the mortgage assigned to him, he would undoubtedly have had that right, but this he never saw fit to exercise. The mortgage was but a security for the debt, and it remained, as well after as before the assignment, a security for the entire debt, not divisible, but entire; and in any foreclosure proceeding both Conrad and McIntire, being holders of separate interests in the mortgage, would be necessary parties.

3. It is contended that this foreclosure is barred as to the two payments of interest due August 25, 1874, and August 25, 1875, by section 8709, How. Stat., which reads:

"No suit or proceeding shall be maintained to foreclose a mortgage on real estate, either at law or in equity, unless commenced within fifteen years from and after such mortgage shall become due and payable, or within fifteen years

after the last payment was made on said mortgage: Provided, however, that this act shall not be construed to apply to mortgages which have been due fifteen years or more, or the last payment upon which was made fifteen years or more, prior to the passage of this act; but in all such cases no suit or proceedings shall be maintained to foreclose the same unless commenced within five years after this act shall take effect."

When the act of 1879 took effect 15 years had not elapsed after the maturity of these claims for interest, hence the proviso of the statute is not applicable. It was held in McKisson v. Davenport, 83 Mich. 211, that, except in cases coming within the proviso of the statute, mortgages given before the act of 1879 took effect are controlled by the 20-year limitation theretofore in force. See, also, Highstone v. Franks, 93 Mich. 52.

4. Does the statute of limitations bar the right to a personal decree against defendant on the note? Under section 8722, How. Stat., if the person entitled to bring the action should die before the expiration of the time limited, or within 30 days after the expiration of the time, the action might be commenced by the executor or administrator of the deceased person at any time within two years after granting letters testamentary or of administration, and not afterwards, if barred by the provisions of law. A similar statute has been held to apply to a grant of ancillary letters of administration, and to extend the statute for two years from the date of their issue. Gallup v. Gallup, 11 Metc. 445. It is suggested, however, that the bill avers that the note and mortgage in question were assigned to complainant by the foreign executor; but, as to securities of this nature, such an assignment was ineffectual,' as was held in Reynolds v. McMullen, 55 Mich. 568.

1 After his appointment as executor by the probate court of Marquette county, complainant assigned the mortgage and note to himself as residuary legatee.

The personal decree, however, includes the amount of the interest payment due the 25th of August, 1874, against which the statute of limitations had run prior to the decease of McIntire. This is an error, and the decree this extent. In all other respects

should be modified to the decree will stand affirmed. But, as this point does not seem to have been distinctly made, we think that complainant should recover costs of both courts.

MCGRATH, C. J., LONG and DURAND, JJ., concurred. GRANT, J., did not sit.

FRED ROBISON AND LORA ROBISON V. THE OHIO FARMERS' INSURANCE COMPANY.

Fire insurance-Title to property-Misrepresentation in application-Knowledge of agent-Estoppel.

A nephew and his aunt were the joint owners of 50 acres of land, subject to an outstanding life-estate in his grandmother. The nephew and grandmother insured a barn standing on the land, and its contents, which belonged to the nephew, and stated in the application that they were the absolute owners of the real estate, that the deed was in their name, and that they were the absolute owners of the personal property insured. The agent who took the application and issued the policy was fully cognizant of the true state of the title, and after a full statement to him, and under his advice, the policy was accepted by the insured. And it is held:

a-That the insured had an insurable interest in the property.

b-That the company is estopped from asserting that it was misled by the statements contained in the application; citing Crouse v. Insurance Co., 79 Mich. 249; Kitchen v. Insurance Co., 57 Id. 135; Insurance Co. v. Earle, 33 Id. 143; Beebe v. Insurance Co., 93 Id. 514.

Error to Washtenaw. (Kinne, J.) Argued October Decided December 2, 1892.

11, 1892.

Assumpsit. Defendant brings error.

Affirmed. The

facts are stated in the opinion, and in head-note.

T. E. Barkworth, for appellant.

Thompson & Harriman, for plaintiffs.

MONTGOMERY, J. This is an action upon a policy of insurance issued to the plaintiffs.

The only defense interposed in this Court is an alleged misrepresentation in regard to the title. The application upon which the policy was written contains the following questions and answers:

"Q. Are you the absolute owner of the real estate? Number of acres in farm?

"A. Yes. One hundred and seventy acres.

"Q. Is the deed in your name?

"A. Yes.

"Q. Are you the absolute owner of the personal property to be insured?

That the insured had an insurable interest in the property is not questioned. It is also found as a fact that the company, by its agent who issued the policy and who took the application, was fully cognizant of the true state of the title, and after a full statement to him, and under his advice, the plaintiffs accepted the policy. Under these circumstances, the company is estopped from asserting that it was misled by the statements contained in the application. Crouse v. Insurance Co., 79 Mich. 249; Kitchen v. Insurance Co., 57 Id. 135; Westchester Fire Ins. Co. v. Earle, 33 Id. 143.

It is claimed, however, that as the application contained the statement that "the applicant hereby declares and warrants that the above answers and statements are true,