Insurance Company, and that, after the fire, agents of the three companies met, and sought to compromise the claims of plaintiff, and made an offer, which plaintiff rejected; and that afterwards, before the expiration of the six months, the defendant company promised him to pay him the full sum stipulated in the policy without suit, in case the Petersburg Company would pay him the full amount of its policy, on which promise he relied; and that the Petersburg Company did pay him the amount of its policy, but the defendant refused to pay the amount of its policy, and did not, until long after the expiration of said six months named in its policy as a contract limitation, refuse to pay or decline to do so, and did not notify him of any purpose not to pay. The circuit court rejected this replication, because it failed to show the date when the promise to pay ceased; that is, when the company notified plaintiff that it would not pay. This repllcation, as counsel for the company concedes, alleges that during the whole of the six months the company was promising to pay, and did not refuse to do so until after that period, and then did refuse. Then the position of the circuit court is not that the date of refusal to pay must be given, so we may see if a part of the six months remained which would afford a reasonable time for suit before its expiration, as held in Steel v. Insurance Co., 47 Fed. 863. But even if the whole six months had gone before a refusal to pay, the promise to pay would be no waiver of the limitation, but suit might be, and must be, brought within six months after refusal to pay, not later, and that the date of refusal should appear, so it would appear if suit was in six months thereafter. This depends upon whether the promise of payment is a waiver of the clause of limitation, eliminating it thereafter from the policy, and estopping the company from pleading it, or merely operates to suspend the running of time under it, so long as the promise lasts, until refusal to comply with it. Now, whether such promise continuing unexecuted for a time, and then ended by a refusal to perform it, leaving a part of the period reasonably sufficient for suit, would be a waiver of the clause, or merely suspend it from the promise to the refusal to fulfill it, I need notdo not-say. I do say, however, that where such promise stands for the whole period of the limitation, it is not a mere suspension, but a waiver of the clause of limitation. The mere pendency of negotiations for settlement is no waiver. ance Co., 6 W. Va. 425. ends controversy, and says: "You need not sue at all. I will pay without suit." It admits of no other interpretation. Thompson v. Insurance Co., 136 U. S. 287, 10 Sup. Ct. 1019, held that a promise to pay was a waiver, and barred the company from this defense. The court went further, saying that conduct of the company in

McFarland v. InsurBut a promise to pay by it the company

spiring a hope and expectation on the part of the insured party that the loss would be amicably adjusted would operate as such waiver and estoppel. The court held it an estoppel against the plea, not a mere suspension. It said delay to sue would, in such case, be attributable to the company. It said the waiver need not be in writing. Assurances of settlement, which reasonably throw the insured party off his guard, and lull him into security, will waive the limitation clause, and bar its use by the insurance company. Insurance Co. v. Peck, 133 Ill. 220, 24 N. E. 538; Bonnert v. Insurance Co., 129 Pa. St. 558, 18 Atl. 552; Insurance Co. v. McGregor, 63 Tex. 399; Bish v. Insurance Co., 69 Iowa, 184, 28 N. W. 553; Martin v. Insurance Co., 44 N. J. Law, 485; 2 May, Ins. § 488. Banking Co. v. Myer, 93 Ill. 271, holds a promise to pay a waiver. We must remember that this clause is for the benefit of the company, inserted by it to limit the period for suit shorter than the general law, and it would be unjust to allow it by its ac tion to cause delay in suit, and then plead this clause. Being for its benefit, it may waive it. In determining whether such promise of payment is a waiver or a mere suspension of running of time, we must reflect that the limitation clause is only a matter of contract, not like the statute of limitations. It either operates or is entirely gone by reason of waiver. The statutory limitation fixes a period as a bar, and then says that when there is obstruction to the prosecution of the suit by absence or other cause the time of the obstruction does not count. The running of time stops for a time and then begins again,-opens and expands,—because the statute says so; but not so with this contractual limitation. Semmes V. Insurance Co., 13 Wall. 158. But cases cited above treat the promise as a waiver of the clause, not a mere suspension.

After finishing this opinion, I meet with the case of Insurance Co. v. Baker, 153 IПl. 240, 38 N. E. 627, meeting the point squarely, holding that "hopes of payment held out to a plaintiff by an insurance company as an inducement not to sue within the time limited in the policy operate as a waiver of the limitation clause," and that, "when once so waived, the clause will not, after any substantial part of the time is lost, be revived by a statement to the insured that the company is insolvent, and he can make nothing by suit," and that "after such waiver the case rests upon the regular statutory limitation." Of course, if a lapse of part of the six months would be a waiver, all of it would. The leaning of the opinion is that it is a waiver regardless of time.

It is proper that I should allude to cases cited in the circuit court's opinion to sustain the contention that such promise only a suspension of time. Black v. Insurance Co., 31 Wis. 74, seems to hold it a suspension. Steel v. Insurance Co., 47 Fed. 863, was where there were assurances of settlement for a

time, but then repudiated, and seven months remained before the end of the period for suit, which the court held a reasonable time for suit. It admitted that, if all the time had gone, it would prevent the company from pleading the limitation. Barnum v. Insurance Co., 97 N. Y. 188, not in point. There were proofs of loss, then negotiations as to amended proofs, and under all the cases the contract limitation could not start till proof of loss or time thereafter given for payment, and the court held that cause of action did not accrue until close of negotiations for amended proofs. It did not hold that promise of payment, after accrual of action, and within the period, would be a mere suspension. Insurance Co. v. Fish, 71 Ill. 621, does not decide this point. It decides that, pending negotiations, suit need not be brought; thus sustaining the proposition that conduct indicating adjustment will be a waiver, rather than holding it a mere suspension. It cites Insurance Co. v. Chestnut, 50 Ill. 116, which holds that an adjustment and promise to pay would waive the limitation clause,an authority to sustain me. And it cites a case in 25 Ill. 466 (Insurance Co. v. Whitehill), holding the same. So the 71 Ill. case is no authority on the point, and, if it were, is overborne by older and later Illinois declsions.

By reason of the rejection of replication 4, we reverse and remand for further proceedings.

1. If an answer presents no bar to the bill, or contains some matter not material, exception should be made to it, pointing out defects, and not a mere general objection should be made.

2. A purchaser who has accepted a deed of general warranty must generally pay the purchase money, and look to the warranty for indemnity against bad title; but if the grantor is insolvent, or the warranty not binding, he will not be compelled to pay, if the title is defective, though he has not yet lost from its defect.

3. A deed for land by a married woman alone, as one living separate and apart from her husband, must recite that fact, as also the fact that the land is her sole and separate estate; otherwise, the deed is void.

4. A certificate of acknowledgment of a deed for real estate made by a married woman alone, as one living separate and apart from her husband, must state that it has been proven to the satisfaction of the officer that the real estate is the sole and separate property of the woman, and that she was at the date of the deed, and still is, at the date of the certificate, living separate and apart from her husband; otherwise, the deed is void.

(Syllabus by the Court.)

Appeal from circuit court, Barbour county; John H. Holt, Judge.

J. Hop Woods, for appellant. Dayton t Dayton and Mr. Blue, for appellees.

BRANNON, P. This suit was in equity, in the circuit court of Barbour county, to sell a tract of land for purchase money, for which a lien was reserved in a deed from Maggie Bennett, the plaintiff, to W. N. Pierce, defendant, resulting in a decree of sale, from which Pierce appeals.

Pierce tendered an answer, which was rejected. The court went on to decree on the bill as confessed. The appellant assigns the rejection of this answer as error. The answer was rejected on mere general objection, no cause of objection being specified. I suppose it was intended as, in effect, a demurrer, asserting that the answer presented no bar. I question whether, under strict equity praetice, an answer can be thus rejected without exception. Likely, if the answer presents no bar to the bill, its rejection on a general objection would be good on appeal. It would be dangerous if the answer contained some good, some bad, matters, as the overruling of a general objection would not then be error. There is no demurrer to an answer. Objec tion must be made by exception. Exceptions are not formal, but must be written and point out grounds of exception. It is better praetice to use them, though I think the practice is loose with all of us in this state under this head. We let answers go in for what they are worth, and go on to proof on both sides, and spend much time and cost, and at last the whole answer, or parts of it, are held to present no bar. The court would, at the start, have rejected the whole or parts of the answer if called on by exceptions, and thus saved much cost and delay. By exceptions, we eliminate from the case answers presenting no bar in law, or such parts as do not, and shorten the case. 1 Enc. Pl. & Prac. 895; Richardson v. Donehoo, 16 W. Va. 685. And I just notice that Judge Lucas entertained the same doubt I entertain, whether such an objection can avail a plaintiff, in Arnold v. Slaughter, 36 W. Va. 589, 15 S. E. 250. Such general objection may, under the liberal rules of equity practice, be good where it goes to the whole answer as presenting no bar, but will not avail where only some matters are objectionable.

Let us, then, see whether this answer presents a bar. It alleges that Mrs. Bennett derived title through certain deeds from parties who were heirs of John Dalton, some of them married women, and it points out that certificates of their privy examination were defective. One of these deeds, dated Feb. ruary 18, 1880, is fatally defective, in the fact that the certificate as to four married women omits the requisite statement, "and having the writing aforesaid fully explained to them." Watson v. Michael, 21 W. Va. 568. The deed of December 7, 1882, is bad because the justice certifies that Phebe Male and husband appeared together, and made a joint acknowl

I

edgment,-bad under McMullen v. Egan, 21 W. Va. 233. And it is bad because in the second clause of the certificate it says: "And the said wi of the said, being at the time," etc., not giving name of husband or wife; rendering this second part, containing essentials, nugatory. The deed of February 6, 1881, is void as to Ary J. Barnes, as it does not show on its face that the land is her separate estate, and she living separate and apart from her husband. No authority is cited for this position, save section 3, c. 66, Code 1868; but that seems all-sufficient. have not met with any case. It is not necessary to give authority to show that at common law a married woman cannot convey land, and can now convey only as statute allows. Under our statute, a wife cannot convey even her separate land without her husband in some way uniting in the deed, except that, if she is living separate and apart from him, she may alone convey; but she must do so in the mode pointed out, and that is that the deed shall recite that the land is her sole and separate property, and that she is living separate and apart from her husband; and, further, the certificate of acknowledgment must show that it was proven to the satisfaction of the officer making it that such were the facts. These matters are not recited in this deed. I think, too, the certificate is defective in not stating that it was proven "to his satisfaction" that the property was her sole and separate property, and that she was living separate and apart from her husband; and the Code says that the certificate must state that "all of said facts were shown to the satisfaction" of the officer. It requires him to say that the proof showed these facts to his satisfaction. It requires his finding on the evidence. Strictness is required, because it may turn out otherwise, and the deed be overthrown. The certificate merely says that Mrs. Barnes made affidavit that the land was her sole and separate estate, and hardly that she was living separate. As a married woman can only convey as statute points out, and the cases require close compliance with their requirements, I think this is a fatal defect. Every material fact must be stated in the certificate, to make a deed valid. 1 Am. & Eng. Enc. Law, 538. These are material facts. Deeds are not good if they do not exist. The justice must find them. These defects make these deeds null and void as to the married women. They never conferred their estates in the land.

Next comes the question, shall Pierce be compelled to pay the balance of purchase money with these grave defects in the title of his grantor? Heavner v. Morgan, 30 W. Va. 335, 4 S. E. 406, and Id., 41 W. Va. 428, 23 S. E. 874, would answer "No," as those cases say that equity will not force a purchaser to complete an executory contract, and pay purchase money, when there is a defect of title. But that was a case of an executory contract; this is a case of a deed with general warranty.

Must the purchaser pay, and wait till he is attacked, and then resort to his warranty? There is a difference, but the subject is so trite that I will not rediscuss it, but simply refer to opinion in McClaugherty v. Croft, 43 W. Va. 270, 272, 27 S. E. 246, showing that, where one accepts a deed with general warranty, he will not be compelled to pay purchase money, and thus lose a fund in his own hands for indemnity, where the grantor is insolvent, and title defective. There are two reasons why that law should be applied in this case. The answer alleges Maggie Bennett's insolvency. Under the general objection to the answer, it must, as if on demurrer, be taken as true. But it alleges, and it is shown by the deed, that Maggie Bennett is a married woman, and therefore her warranty does not bind her to the personal covenant of warranty, but only to pass her estate in the land. Code 1891, c. 73, § 6; Sine v. Fox, 33 W. Va. 521, 11 S. E. 218. Counsel would here draw a distinction, saying that this rule does not apply where the land is separate estate, and that in such case the covenant does bind the woman as if single, and that Sine v. Fox was not the case of a deed of separate estate. But there is the positive provision that such covenant shall not bind the wife personally, and there is no exception of a deed for separate estate, though that section provides as to conveyance by a wife living alone, of her separate estate. Only the legislature can put such an exception in the statute. Here we must remember that by common law a married woman cannot contract. Whether, by law at the date of this deed (June 27, 1895), this covenant would bind her, if it were not for section 6, c. 73, limiting its effect, it is not necessary to say; but as to this particular contract that limitation stands in the Code unchanged.

Counsel argue that Pierce must wait till his title is attacked. Not so. He is a defendant seeking to keep in his pocket a fund for his indemnity.

Counsel for Mrs. Bennett also say that it has been 17 years since these defective deeds were made, and that the rights of these married women were barred by limitation and laches. As to limitation: If this land was not separate estate, limitation would not operate against the married women until the death of their husbands; otherwise, if it was separate estate. Code, c. 104, § 3; Randolph v. Casey, 43 W. Va. 289, 27 S. E. 231. The record does not tell us when John Dalton died, and the land vested in his children; whether it was before or after April 1, 1869. The hus bands are presumed to be yet living. Moreover, there is nothing to show that Rolley C. Bennett, grantee in the defective deeds, or Pierce, grantee of Maggie Bennett, ever had actual possession. Deeds confer constructive possession; but, under the statute, actual pos session must be shown by him asserting it. Industrial Co. v. Schultz, 43 W. Va. 470, 27 S. E. 255; Koiner v. Rankin's Heirs, 11 Grat

420; Overton's Heirs v. Davisson, 1 Grat. 211; Busw. Lim. § 236. It is unquestionable that where a purchaser takes actual possession under a deed purporting to convey legal title, and not under an executory contract, the possession of grantee is adverse to the vendor (Core v. Faupel, 24 W. Va. 238). Even if the deed is void (Randolph v. Casey, 43 W. Va. 289, 27 S. E. 231; Swann v. Thayer, 36 W. Va. 46, 14 S. E. 423; Mullen's Adm'r v. Carper, 37 W. Va. 215, 16 S. E. 527). So, if it should appear that John Dalton died after April 1, 1869, descent casting on his daughters a separate estate, and that Rolley C. Bennett and Pierce, taking their actual possession, had such possession for 10 years, the married women would be barred, and time would cure the vice in said deeds; but the facts on which this proposition rests are not before us. It is not necessary to discuss laches of these married women, as it is a question of statutory limitation. If the statute does not bar out their title, laches will not; and, if the statute applies, it is useless to consider laches. This rejected answer presented a good bar to the bill until it was repelled, and it was error to reject it. We therefore reverse the decree, and remand the case, with direction to allow the answer to be filed.

(45 W. Va. 731)

SHUFFLIN v. HOUSE et al. (Supreme Court of Appeals of West Virginia. Dec. 17, 1898.)

LEASE BY LIFE TENANT-DURATION-DEATH OF LIFE TENANT.

1. The word "land" in section 1, c. 94, Code, is used in a restricted sense to denote agricultural or farming land, and not town lots used for building purposes alone.

2. All unexpired leases given by a life tenant on town lots used for building purposes alone terminate with the death of such life tenant, and do not continue in force until the end of the current year.

(Syllabus by the Court.)

Error to circuit court, Tyler county; R. H. Freer, Judge.

Suit by M. B. Shufflin against House & Hermann and others. Judgment for plaintiff, and defendants bring error. Reversed.

Robt. McEldouney, George W. McCoy, and Howard & Handlan, for plaintiffs in error. T. P. Jacobs and F. D. Young, for defendant in error.

DENT, J. S. Stephens and Amanda Stephens, holding a life tenancy in a certain lot in the town of Sistersville, Tyler county, W. Va., with remainder in Clara E. Jones, leased the same to M. B. Shufflin for the period of from one to five years, ending on the 12th day of May, 1897. This lease was afterwards extended to the 1st day of April, 1900. Clara E. Jones did not consent to or join in either of the leases. Amanda Stephens, the surviving life tenant, died the 2d day of Jannary, 1897. In the meantime M. B. Shufflin

sublet the property to House & Hermann at the rate of $150. House & Hermann paid Shufflin up to including the date of the death of Mrs. Stephens, and then released the property from Mrs. Jones. Shufflin, claiming the rent from Mrs. Stephens' death up to the end of the current year, to wit, 12th May, 1897, levied two distress warrants on the property of House & Hermann. They gave forthcoming bonds, and this suit is on such bonds to recover the balance of such rent. The cir cuit court gave judgment against the defendants for the sum of $360, and they come to this court.

The only question presented is as to whether M. B. Shufflin or Clara E. Jones is entitled to the rent from the 2d day of January, 1897, to the 12th day of May, 1897, being from the date of the death of Mrs. Stephens to the end of the current year of the leasehold. All unexpired leases made by a life tenant terminate at his death, except as otherwise provided by statute. Gear, Landl. & Ten. § 21; 1 Tayl. Landl. & Ten. p. 121, § 112; 12 Am. & Eng. Enc. Law. p. 758, note 1. Code, c. 94, § 1, provides that, "If there be tenant for life or other uncertain interest in land which is let to another, the lessee may hold the land to the end of the current year of the tenancy, paying rent therefor; the rent if it be reserved in money shall be apportioned between the tenant for life or other uncertain interest, or his personal representative, and those who succeed to the land." This provision the plaintiff insists governs in this case, while the defendants insist that it only applies to lands used for agricultural purposes, and not to town lots or other real estate where the rent is payable monthly in money. The word "land" in this section was no doubt used in a restricted sense to denote agricultural land rented for an annual rental, for the purpose of encouraging agriculture and securing to the tenant the harvest that he might sow. 2 Minor, Inst. pp. 101, 102. Where the reason of the law fails, the law itself is at an end. "The word 'land' has two senses, one general and one restricted. If it occurs accompanied with other words which either in whole or in part supply the difference between the two senses, that is a reason for taking it in its less general sense; e. g. in a grant of lands, meadows, and pastures, the former word is held to mean only arable land. Burt, Real Prop. 183; Cro. Eliz. 476, 659; 2 And. 123; Van Gorden v. Jackson, 5 Johns. 440." Bouv. Law Dict. The reason for taking the word "land" in its less general sense as farming or agricultural land is from the context and the true purpose of the enactment, being to secure to the person who sows and cultivates the right to reap and enjoy. In the case of town property no such necessity exists. If the statute was applicable, all the tenant could do, even thereunder, would be to collect the rent and pay it over to the remainder-man. He is only entitled to the rent up

to the date of the death of the life tenant. Why, then, permit him to collect rent which belongs to another, or retain control of property in which he has no possible interest? With agricultural land it is different. A yearly rental or a portion of the crop is usually reserved, and according to common law the subtenant, in case of the death of the life tenant, was entitled to the emblements. The object of the statute was to declare the common law and make it effective, and was in no sense to apply to town property rented for a monthly rental, of whatever term.

As

to such property its provisions have no application, and are wholly unnecessary and useless. Therefore the circuit court erred in rendering judgment for the plaintiff, and the same is reversed, and judgment is entered for the defendants.

(45 W. Va. 729)

JONES v. SHUFFLIN.

(Supreme Court of Appeals of West Virginia. Dec. 17, 1898.)

APPEAL

LIFE

OBJECTIONS NOT MADE Below TENANCY-RIGHTS OF REMAINDER-MAN. 1. An objection to a bill in chancery, made for the first time in this court, for the reason that it is not signed by counsel, will not be entertained.

2. After the expiration of a life tenancy in a town lot by death, and the termination of a lease thereunder, the lessee cannot remove buildings put on such lot during the continuance of such tenancy. Such buildings become a part of the realty, and go to the person entitled to the remainder.

(Syllabus by the Court.)

Appeal from circuit court, Tyler county; R. H. Freer, Judge.

Bill by Clark E. Jones against M. B. Shufflin. Decree for plaintiff. Defendant appeals. Affirmed.

Thos. P. Jacobs and F. D. Young, for appellant. Robert McEldowney and G. M. McCoy, for appellee.

DENT, J. S. Stephens and Amanda Stephens, holding a life tenancy in a certain lot in the town of Sistersville, Tyler county, W. Va., with remainder in Clara E. Jones, leased the same to M. B. Shufflin for a period of years extending to the 1st day of April, 1900. Clara E. Jones did not consent to or join in either of these leases (there being two of them), but, on being applied to, positively refused to do so. To the first lease Mrs. J. S. Jones (now Mrs. Shufflin) was a party, but she was not made a party to this suit. These leases were terminated by the death of the surviving life tenant, Mrs. Amanda Stephens, the 2d day of January, 1897. See Shufflin v. House (decided at this term) 31 S. E. 974. During their existence M. B. Shufflin erected a large frame building on the lot which he leased to House & Herman, who were in the occupancy thereof at the time the leases terminated. This building was constructed on a good, firm foundation, and was connected

with the street sewerage, at the expense of the life tenancy. Defendant Shufflin undertook, after the termination of his lease aforesaid, to remove the building from the lot. Clara E. Jones, plaintiff, enjoined such removal, and, at the hearing of the cause on bill and answer, general replication, and depositions, the injunction was perpetuated. The defendant appeals, and claims: First. That the bill was not signed by an attorney. This is an objection that should have been taken in the circuit court, and cannot be taken for the first time in this court. Second. That Mrs. J. S. Jones was not made a party, while she is a party to the leases, or one of them. There is nothing to show that she was attempting to remove the building, and it will be time enough to enjoin her when she does undertake to do so. She was not a necessary party, as no relief is sought against her.

Defendant insists he had a right to remove the building-First, because his tenancy had not terminated; and, second, it remained his by virtue of the law of fixtures. The first of these questions is settled adversely to defendant's claim in the case of Shufflin v. House, before cited. As to the second question, the law is well settled that the remainder-man is entitled to the property with all improvements thereon at the expiration of the life tenancy. In the case of White v. Arndt, 1 Whart. 91, it is held: "(1) Even as between landlord and tenant, fixtures erected by the latter, and which he is entitled to remove, must be removed during the term; after the expiration of the term the tenant can neither remove them nor recover their value from the landlord. (2) This rule prevails more strictly between tenant for life or his lessee and the remainder-man, the latter of whom is not bound by any agreement between the tenant for life and his lessee under which the lessee may have erected buildings on the land." Haflick v. Stober, 11 Ohio St. 482; Austell v. Swann, 74 Ga. 278; Dean v. Feely, 69 Ga. 804. The plaintiff, being entitled to the remainder, and not having consented to the lease, is in no wise bound thereby, and the improvements come to her as though they had been placed thereon by a stranger. If a building is erected on land against the will of the landowner, or without his consent, it becomes realty, and cannot be removed therefrom without the commission of waste. Bonney v. Foss, 62 Me. 248; Cannon v. Copeland, 43 Ala. 252; Dart v. Hercules, 57 Ill. 446; Honzik v. Delaglise, 65 Wis. 494, 27 N. W. 171. The defendant in this case acted

with open eyes. He erected the building against the consent and against the known will of the plaintiff. He allowed it to remain until after the expiration of the life tenancy and the termination of his lease, and thereby, if he might have done so before, he cannot remove the same. It has become a part of the realty, and belongs to the plaintiff. The court did right to perpetuate the injunction, and its decree is affirmed.