an incorrect application was held chargeable to the insurer, and not to the insured, notwithstanding the insertion of an agency clause in the policy.

In Planters' Ins. Co. v. Myers, 55 Miss. 479, 30 Am. Rep. 521, an agency clause in a policy of insurance was held to be void, as involving a legal contradiction. The appli

cant made truthful answers to certain inter-
rogatories propounded by the agent, who
stated certain things that were not true.
They were held not to be binding upon the
insured. Speaking of the agency clause, it
is said: "The verbiage of this condition is
not candid; it seems to have been used with
studied design to obscure the real purpose.
It is a snare, set in an obscure place, well
calculated to escape notice. It is not writ-
ten or printed on the face of the policy. It
is not so much as alluded to in the applica-
tion; nor is the agent in his printed instruc-
tions enjoined to inform those with whom he
treats of it.
Its inevitable effect is
to greatly weaken the indemnity on which
the assured rely. It is inconsistent with the
acts and conduct of the insurance companies
in sending abroad all over the land their
agents and representatives to canvass for
risks. It is an effort by covenant to get the
benefits and profits which these agents bring
them, and at the same time repudiate the
relation they sustain to them; and to set
up that relationship with the assured, and
that, too, without their knowledge and con-
sent. It is not a limitation or restriction
of power, but the dissolution of the relation-
ship with themselves and the establishment
of it between other parties."

The case of Schunck v. Gegenseitiger Wittwen und Waisen Fond, 44 Wis. 369, is almost precisely like the instant case. The constitution of the defendant corporation, whose governing body or directory was elected by the several "groves" (corresponding to the sections in this case) of the United Ancient Order of Druids, declared that every member whose assessment was not paid by his grove to the directory within thirty days after demand made forfeited his claim to have a certain sum in the nature of life [274]insurance paid to his widow, or heirs, *after nis death. It was held that, in view of all the provisions of such constitution, the benevolent object of the corporation, and the fact that the several groves are, at least, as much its agents to collect and pay over the dues of their members, as they are agents of the latter, in case of a member whose dues have been fully paid to his grove at the time of his death, the amount of insurance might be recovered, notwithstanding a default of the grove in paying over such dues to the defendant.

The agency clause was also once before this court in the case of Grace v. American C. Ins. Co. 109 U. S. 278, 27 L. ed. 932, 3 Sup. Ct. Rep. 207, in which a clause in the policy that the person procuring the insurance to be taken should be deemed the agent of the assured and not of the company, was held to import nothing more than that the person obtaining the insurance was to be

deemed the agent of the insured in the mat-
ters immediately connected with the pro-
curement of the policy, and that, where his
employment did not extend beyond the pro-
curement of the insurance, his agency ceased
upon the execution of the policy, and subse-
quent notice to him of its termination by
the company was not notice to the insured.
In the following cases the officers of the
subordinate lodge, or conclave, were treated
as the agents of the Supreme Conclave in the
matter of granting extensions of time for
Whiteside v.
the payment of assessments:
Supreme Conclave 1. O. of H. 82 Fed. Rep.
275; Knights of Pythias of the World v.
Bridges, 15 Tex. Civ. App. 196, 39 S. W. 333.

In the case under consideration it may
be immaterial, except as bearing upon the
equities of the case, that the agency clause
was introduced into the general laws of the
order in January, 1894, eleven years after
the first certificate was issued to the assured,
and nearly nine years after the certificate
was issued upon which suit was brought.
There is no evidence that it was ever called
to Withers's attention, or that he had actual
knowledge of it. If he were bound at all,
it could only be by the stipulation in his
original application, and by the terms of his
certificate that "he would be bound by the
rules and regulations of the order, now in
force or that may hereafter be enacted."
All that is required of him is a full compli-
ance with such laws, and there is not the
slighest evidence that he failed *personally[275]
in any particular to comply with any laws
of the order, present or future. The only
failure was that of the secretary of the sec-
tion, who, to say the least, was as much the
agent of the order as he was of Withers, al-
though the latter is sought to be charged
with his dereliction by a clause inserted in
the general laws, long after the certificate
was issued. The decisive consideration is
this: Chadwick was the agent of the de-
fendant, and of the defendant only, after the
receipt of the money from Withers. Under
section 10 he then became responsible for it
to the board of control. In rendering his
monthly accounts and paying over the money
he acted solely for the defendant. From the
time he paid the money to Chadwick the in-
sured had no control over him, and was not
interested in its disposition. Unless we are
to hold the insured responsible for a default
of this agent, which he could not possibly
prevent, we are bound to say that his pay
ment to this agent discharged his full obli-
gation to the defendant. That it should
have the power of declaring that the default
of Chadwick, by so much as one day (and
it did not exceed four days in this case), to
pay over this money, should cause a for-
feiture of every certificate within his juris-
diction, is a practical injustice too gross to
be tolerated.

Without indorsing everything that is said in the cases above cited, we should be running counter to an overwhelming weight of authority were we to hold that the agency clause should be given full effect regardless of other clauses in the certificate or the by177 U. S.

he took them; and the fact that the personal
property on the farm is assessed in the name
of the son,-do not give him title to such per-
sonalty so as to subject it to levy on execu-
tion against him.

[No. 183.]

laws, indicative of an intention to make the
officers of subordinate lodges agents of the
supreme or central authority. We should
rather seek to avoid, as far as possible, any
injustice arising from a too literal inter-
pretation, and only give the clause such ef-
fect as is consistent with the other by-laws
and with the manifest equities of the case. Argued March 14, 1900. Decided April 9,
We are therefore of opinion that in this case
the secretary of the section was in reality
the agent of the Supreme Lodge from the
time he received the monthly payments, and
that the insured was not responsible for his
failure to remit immediately after the tenth

of the month.

We have not overlooked in this connection

[216]the case of Campbell v. *Supreme Lodge K. of P. of the World, 168 Mass. 397, 47 N. E. 109 in which a different conclusion was reached,

1900.

Court of Appeals for the Seventh Circuit to review a decision affirming a judgment for a claimant of property levied upon as that of another person. Affirmed.

N ERROR to the United States Circuit

See same case below, 60 U. S. App. 659, 89

Fed. Rep. 1013, 32 C. C. A. 602.

Statement by Mr. Justice Brown:
defendant in error, *Lewis Hatch, filed in the [277]
This was an intervening petition by the
district court for the northern district of Il-
linois, in the case of Joseph G. Heim, Receiv

upon a similar state of facts. In that case
plaintiff put his right to recover upon the
theory that the mailing of the remittance
was a compliance with the requirement of
section 6 that such payments and dues, V. Frank W. Hatch, praying for the re-
should be received on or before the last day
of the month. This position was held by
the court to be untenable. It was said that
the money must have been actually received

at the office of the board of control before the end of the month. The question of agency was not considered, and the trend of the argument is so different that the case cannot be considered an authority upon the propositions here discussed. The cases of Peet v. Great Camp of K. of M. of the World, 83 Mich. 92, 47 N. W. 119, and McClure v. Supreme Lodge K. of H. 41 App. Div. 131, 59 N. Y. Supp. 764, are not in point.

The judgments of the Circuit Court and of the Court of Appeals were right, and they are therefore affirmed.

JOHN W. ARNOLD, Plff. in Err.,

v.

LEWIS HATCH.

(See S. C. Reporter's ed. 276-281.) Ownership of property levied upon title to personal property on farm-effect of contract to manage farm and return or replace personalty.

A contract between the owner of a farm and his son, by which the latter is given the management of the farm, farm implements, and live stock, with full liberty to sell and dispose of them, replace old stock and implements with new, and appropriate the net proceeds to himself, and is charged with the duty to make all repairs, pay all taxes and other expenses, replace all implements as they are worn out, and keep up all live stock, and is given as his own the net profits, but without fixing any purchase price or providing for payment by the son for the property, while either party is at liberty to terminate the arrangement at any time, upon which the son is required to turn back the farm with its implements, stock, and other personalty of the same kind and amount as was on the farm when he took charge of it, and in as good condition as when

tioner of a large amount of cattle and other
lease by the marshal and a return to peti-
farm property alleged to belong to him, and
levied upon by the marshal as the property
of Frank W. Hatch.

in the district court for the northern district
The cause originated in an action begun
of Illinois, by Joseph G. Heim, as receiver
of the First National Bank of Southbend,
Washington, against Frank W. Hatch, to en-
force against the defendant an individual
liability as a stockholder of the bank, which
had become insolvent. Defendant having
made default, a judgment was rendered
against him in the sum of $4,351.09 and

costs, for which an execution was issued and

levied upon the cattle and other farm property in dispute. Whereupon Lewis Hatch, the father of Frank W. Hatch, filed this petition, to which the plaintiff in error. John W. Arnold, marshal for the northern district of Illinois, made answer, denying the petitioner's ownership of the property, and admitting his levy upon it as the property of Frank W. Hatch.

The case came on for trial before a jury, and resulted in a verdict for the petitioner, upon which judgment was entered. On writ of error from the circuit court of appeals this judgment was affirmed. 60 U. S. App. 659, 89 Fed. Rep. 1013, 32 C. C. A. 602. Whereupon plaintiff in error, Arnold, sued out a writ of error from this court.

Mr. Kenesaw M. Landis argued the cause and filed a brief for plaintiff in error. Mr. George A. Dupuy argued the cause and filed a brief for defendant in error.

*Mr. Justice Brown delivered the opinion[277] of the court:

This case presents the frequent question of the title and ownership of personal property levied upon as the property of an execution debtor, and claimed by another party. The undisputed facts are that, in 1883, the petitioner, Lewis Hatch, who then and for about twenty-five years prior thereto, had resided *upon and worked a large farm in Mc-[278]

278-280

Ilatch, gave up the arrangement, moved
with his family to Texas, and settled there
with the intention of making it his home.
Upon going there he left all the stock upon
the farm just as he had received it from his
father. He subsequently became dissatis-
the same arrangement. He continued under
this arrangement until 1892, when he went
to the state of Washington for the purpose
of locating there; invested in real estate
and apparently in bank stock, in which he
appears to have been unfortunate. Again
returning to Illinois, he resumed the man-
agement of the farm.

Henry county, Illinois, made a contract with
his son, Frank W. Hatch, a young man just
out of school, under which it was agreed
that the latter should undertake the man-
agement of the farm, farm implements, and
live stock, make all repairs, pay all taxes
and other expenses, replace all implementsfied, and returned to his father's farm under
as they were worn out, keep up all live
stock, and have as his own the net profits.
It was further stipulated that each party
should be at liberty to terminate the ar
rangement at any time, and that the son
should turn back to his father the farm with
its implements, stock, and other personalty.
of the same kind and amount as was on the
farm when the father retired, and in as good
condition as when he took them.

As all questions connected with the veracity of witnesses, the bona fides of this arrangement, and its exact terms, are forestalled by the verdict of the jury, we are bound to consider the case as if the arrangement had been reduced to writing, and such writing were the only evidence bearing upon the subject. As the only testimony in the case was that of the father and the son, and as their statements were entirely harmonious, we are simply to inquire as to the correctness of the charge of the court to the jury, that, if they believed the arrangement was substantially such as was stated by the petitioner and his son, it did not have the effect in law to vest the title to any of the property or proceeds of the farm in Frank W. Hatch, although he may have had power to sell the same to others without any further authority from his father. There was evidence showing, not only that the son assumed the entire management of the farm, but that he was at full liberty to sell and dispose of its products, to replace old stock and implements with new, and to appropriate the net proceeds to himself; and that his only obligation was to return the property on demand, or substituted property of the same kind and amount, whenever either party should see fit to terminate the arrange

ment.

It further appeared from the tax schedules of personal property in that school district, that the property in question was assessed in the name of Frank W. Hatch. While this testimony was doubtless entitled to consideration, the jury evidently did not give it great weight, as it was part of the agreement between the father and son that the latter should pay the taxes.

There was also evidence that, in the spring of 1897, the son sold to his father for $1,000 a quantity of wool produced on the farm; but as it was also a part of the agree ment that the son should have the product of the farm there was nothing inconsistent with it in this sale of the wool.

It is very evident from this testimony that no sale of the farm property was intended. There was no purchase price agreed upon, no time fixed for the payment; and the reservation that the arrangement might be terminated the day after it was made, as well as(280) that it might indefinitely continue, is wholly inconsistent with the theory of a sale. Indeed, the only indicium of a sale is the provision that the identical property received need not be returned, but that other property of a similar kind might be substituted. Plaintiff in error relies in this connection upon a line of cases which hold that, where a man turns over personal property to another, under an arrangement by which the latter is not obliged to restore the specific articles of property, but is at liberty to de

We do not know that it is necessary to fix an exact definition to the relations be-liver other property of the same kind and tween these parties, or to determine whether the law of master and servant, landlord and tenant, or bailor and bailee governed the [279]transaction. The main object is to *ascertain the intent of the parties with respect to the ownership of the property. There is no doubt that the title to the farm remained in the father, who continued to occupy the homestead, and provided accommodations for certain of the farm hands; that the arrangement was made with his son soon after he left school, and apparently for the pose of starting him in business. He was then unmarried, and lived in the same house with his father, who furnished the board of the hired men until after the son was married, when, after living some time with his wife in the homestead, he built at his own expense a small house for his own use about 20 or 30 rods distant from that of his father, although some of the hired men still lodged with the latter. In 1887 the son, Frank W.

pur

value, the receiver becomes the owner of the
property; as, where wheat is delivered to an
elevator with the understanding that the
obligation to return it shall be discharged by
the delivery of other like wheat (Story,
Bailments, § 439; Lonergan v. Stewart, 55
Ill. 49: Bretz v. Diehl, 117 Pa. 589, 11 Atl.
893; Smith v. Clark, 21 Wend. 83, 34 Am.
Dec. 213: Johnston v. Browne, 37 Iowa,
200), although even then a usage to re
Erwin V.
into
bailment.
a
turn substituted property may turn the
transaction
Clark, 13 Mich. 10. But these authorities
have no application to the case under con
sideration. Here there was no provision for
a substituted property beyond that required
by the nature of the property delivered.
The arrangement was to be indefinite in its
continuance. The property was mostly ani-
mals which would necessarily die, be sold, or
slaughtered in a few years, and a gradual
substitution of their progeny or other simi-

177 U. S.

lar cattle and a renewal of worn-out implements was all that was contemplated. The stipulation that this might be done was a mere incident of the main agreement by which the property was to be returned in like good order and condition as received.

The son was undoubtedly intrusted with extensive powers, but no greater than the management of a large farm would necessarily require. The father had become an old man, and naturally wished to rid himself of the responsibility, even of supervision, and to put his son upon the footing of an independent farmer. It is possible that he contemplated leaving the property to his son upon his death; but it was clearly his intention to reserve the power of revoking the arrangement in case it did not prove satisfactory to him. As the father remained in possession of the farm, there was nothing in the [281]mere fact that he *intrusted his son with the management that was necessarily calculated to mislead creditors into the belief that the latter was the owner of the property. Apparently the receiver was unable to produce evidence manifestly inconsistent with the agreement as sworn to by both father and son, and their testimony authorized the jury to find the ownership of the property to be in the former.

Similar agreements have been sustained as against creditors in a number of cases. Chatard v. O'Donovan, 80 Ind. 20, 41 Am. Rep. 782; Wilber v. Sisson, 53 Barb. 259; Bowman v. Bradley, 151 Pa. 351, 17 L. R. A. 213, 24 Atl. 1062; Kerrains v. People, 60 N. Y. 221, 19 Am. Rep. 158; Haywood v. Miller, 3 Hill, 90; Brown v. Scott, 7 Vt. 60; Peters v. Smith, 42 Ill. 422; State v. Curtis, 20 N. C. (4 Dev. & B. L.) 226.

There was no error in the judgment of the court of appeals, and it is therefore affirmed.

THOMAS W. HYDE, Piff. in Err.,

v.

BISHOP IRON COMPANY et al.

(See S. C. Reporter's ed. 281-290.)

Statement by Mr. Justice Brewer: On April 3, 1895, the Bishop Iron Company, one of the defendants in error, filed in the district court of the eleventh judicial district of Minnesota, in and for the county of St. Louis, its complaint in ejectment, alleging that it was the absolute owner in fee simple and entitled to the immediate possession of the undivided of the following described land, situate in the county of St. Louis, to wit: The N. E. 4 of the S. W. of section 30, township 63 north, range 11[282] west of the fourth principal meridian, and that it was the lessee of the remaining undivided of said land under a lease in writ ing from and executed by the owners in fee simple of said remaining undivided, by the terms of which lease plaintiff was entitled to the immediate, sole, and exclusive possession of said undivided; that the defendant, the present plaintiff in error, on January 1, 1895, wrongfully and unlawfully entered into and took possession of said tract, and had ever since kept possession thereof. The prayer of the complainant was for possession, for costs and disbursements. The defendant answered and filed a cross petition, and on his application certain parties were made defendants to that cross petition. He subsequently filed an amended answer and cross petition.

In the latter these facts are alleged: That ever since August 20, 1884, the petitioner has been in the actual, open, and exclusive possession of the tract in controversy; that at the time of his taking possession it was unoccupied and unsurveyed land of the United States; that prior to July 20, 1885. the lands in that district were duly surveyed land office at Duluth, Minn., that being the and an approved plat thereof filed in the land office of the district in which those lands are situated; that on July 20, 1885, he duly offered to the local land office and made application to file his declaratory statement for said tract and lots 5 and 6 and the S.E. 1/4 of the N.W. 14 of said section 30, and tendered the fees required by law to be paid on said application and filing; that he was informed by the local land officers that they would reject such application unless limited

Public lands-application to enter land to the tract in controversy; that he then and partly for benefit of others.

A single application to enter 160 acres of land by a person who has made a contract to divide a quarter thereof, when obtained, with another person, in violation of U. S. Rev. Stat. § 2262, cannot be sustained as to any part of the land, but is invalid even as to the part which he had not agreed to divide.

[No. 126.]

there notified said local land officers that his
house and the land he cultivated was upon
and within said tract, and that he desired
and intended to claim the same as a pre-emp-
tion, whether or not he was successful in a
contest which he had in reference to the oth-
er tracts in the application; that he was told
by them that if he was a settler in good faith
his rights would be protected; that on the
same day, but without his knowledge, the
register made this indorsement upon the ap-

Argued January 29, 30, 1900. Decided April plication: 9, 1900.

IN

N ERROR to the Supreme Court of the State of Minnesota to review a decision affirming a judgment in an action of eject ment. Affirmed.

See same case below, 72 Minn. 16, 74 N.

W. 1016.

"Land Office, Duluth, Minn., July 20th, 1885. The within *application to file D. S.[283] on the within described land is refused as to the S. E. 4 of the N. W. 14 and lots 5 and 6 of Sec. 30, T. 63, R. 11 W. for the reason that the date of settlement alleged herein does not antedate the unadjusted location of Sioux half-breed scrip No. 19 E. in the name