the filing of the bill it had conveyed all the lands in question and ceased to have any interest in the subject-matter in controversy. Not a person who had any interest in the matters in controversy when the bill was filed has been made a party to this suit. The court is asked to vacate patents to large quantities of land held by numerous parties under these patents without anybody having an interest in the lands being a party to the suit. The parties in interest are not only proper but indispensable parties. No decree can be rendered annulling or affecting the title of parties to land without their presence. They are entitled to their day in court. Shields v. Barrow, 17 How; 130; Coiron v. Millandon, 19 How. 113; Barney v. Baltirrwre City, 6 Wall. 285; Ribon v. Railroad Co. 16 Wall. 450; Railroad Co. v. Orr, 18 Wall..475. The defendant in this suit, having no interest in the subject-matter involved, is not even a necessary, if a proper, party to the bill to annul the patents. To vacate the patents on this bill would be very much like foreclosing a mortgage upon lands, in a suit against a mortgagor not personally liable for tp.e debt secured, after he has conveyed the mortgaged lands, without making the owner of the lands a party. All the indispensable parties are omitted from the bill, and those not necessary to be made parties are sued. The bill must be dismissed on this ground, U on no other, and it is so ordered.
NATIONAL LIFE INS.
(Circuit Oourt, D. Massachusetts.
LIFE INSURANCE-ENDOWMENT POLICY.
April 14, 1882.)
A person holding an endowment policy, upon which he must pay annual premiulIIB, is entitled to notice of change of agency of the ·c company before it can insist on payment of the annual premium on thc vcry day it becomes due.
On demurrer ,.to bill.
Thomas Weston, Jr., for complainant. R. D. Smi.th, for defendant.
LOWELL, C. J. The plaintiff's bill shows that he procured an endowment policy for $2,000, payable in 15 years from April 21, 1877, one of the conditions of which was that he should pay annual premiums of $113.60 on the twenty-first of April in each year; that he paid the premiums for 1877, 1878, and 1879; that the company has its domicile at Washington, but had a general agent and office
BRIGGS' V.NATIONAL LIFE INS. CO.
in Massachusetts; that the three premiums 'were paid to the agent and were countersigned as coming from the Massachusetts that some time in April, 1880, before the fourth premium came due, the plaintiff was informed and believed that the company had ceased to do business in Massachusetts, and had given up its office; that he made many inquiries as to where and to whom he was to pay the premium, but was unable to learn; that on or about April 18, 1880, he was informed that the premium was to be paid to a certain bank in Taunton; that he immediately called on the company's former agent to inquire whether it was safe to pay to the bank, and was informed by said agent that the company had taken the collections out of the hands of their agents here without their knowledge, but that he would ascertain where and to whom he should pay said premium; that the agent informed him, April 30th, that he could pay a bank in Taunton, and he tendered the amount accordingly, which was kept a few days and then returned with a statement that the policy was forfeited; that he was always ready and willing to pay, but had not sufficient notice, etc. The bill prays a reinstatement, or certain other relief. The defendant demurs. The only question argued is whether the bill, upon its face, brings the plaintiff within the principle of Ins. Co. v. Eggleston, 96 U. S. 572. Both counsel agree that if the assured had been in the habit of paying the premiums to a local agent, the company have no absolute right to change the agency without notice to the assured, and still to insist on payment at the very day; but the defendant insists that the failure to notify must be fraudulent, in order to give the assured an excuse for not paying at the day. They cite Thompson v. Knickerbocker Life Ins. 00. 2 Woods, 547, but that was a case in which the company had been accustomed to give notice to the assured that his own note was about to become due,--a fact equally within the knowledge of the assured; and it ought certainly to require very strong evidence to erect such a custom into an estoppel, especially as the policy provided that notice should not be required. Undoubtedly, an actual promise to notify one who had not equal means of information would be binding. Leslie v. Knickerbocker Life Ins. Co. 63 N. Y. 27. And in Iowa a custom to notify was held to have the same effect. Mayer v. Ins. Co. of Chicago, 38 Iowa, 304. I understand the case in 96 U. S. not to turn upon a question of actual fraud at all, but on fair and reasonable business conduct, by which one party shall not be misled to his injury by a change of place by the other. It is precisely as if the company itself should
remove its principal office, without notice, to some other city than Washington, and try to forfeit the policies of all those who were misled by the change. The other question is whether the bill, rightly construed, alleges that the plaintiff was misled to his injury bJ' the change of agency. The narrative is somewhat minute, and not sharply and technically affirmative or negative in its allegations. I agree that all pleadings are to be taken most strongly against the pleader, as was ably and learnedly shown by the defendant's counsel; but I add that a bill in equity is to be read reasonably. I do not find that it can fairly be inferred from this bill that the information, which the plaintiff admits he had three days before April 21st, came from an authorized sour0e, and therefore was notice to him that the bank in Taunton had power to receive the premium. On the contrary, the allegation is that he knew of no one but the former agent, and that he applied to him as Eloon as he heard about the bank in Taunton. No doubt it would have been easier to apply to the bank itself; but that raises the question whether the supreme court mean to say that the insurance company ought to give notice to their policy-holders, or that the assured are themselves bound to exercise their best diligence. This is not a question to be decided upon this demurrer, because the facts are not sufficiently developed to enable me to decide it understandingly. On the face of the decision in 96 U. S. I understand that the defendant should have notified tpe plaintiff. When and under what circumstances notice may be excused, or what sort of notice must be given, or what information on the part of the assured wilUdispense with notice, are as yet undecided. There is nothing in the bill which authorizes me to say that the plfl.intiff any notice from the defendant concerning its change of agency. If I could have ende.d the case here, there was the temptation to do so, that the costs of a. suit must bear a very large proportion to the amotlnt in controversy; but I find· in this bill, fairly construed, sufficient equity to put the defendant com-pany to its answer. Demurrer overruled.
COLEMAN, Assignee, etc.,
(Di8trict Oourt, W. D. Penn8ylvania. March, 1882.)
'PRACTICF: IN EQUITY-AMENDMENT OF FINAL DECHEB.
After the lapse of more than four years an amicable final decree in equity, in a suit between an assignee in bankruptcy and an assig-nee under a deed of voluntary assignment, which left the latter liable to account to the creditors of the assignor in a state court for the portion of the assets he had collected, will Dot be amended upon his petition, on the ground of an alleged mistake in its terms, although the assignee in bankruptcy consents, where the amendment would prejudice the creditors, and they object to its allowance.
In Equity. Petition to amend decree. This case was upon a petition to amend the final decree entered in the suit October 18, 1877. Roger Sherman, for assignee in bankruptcy. I. B. Brawley and Neill <t Heywang, for assignee under the state laws. All these for rule. Guthrie <t Byles and J. J. Hender8on, for creditors. Against the rule. ACHESON, D. J. If the decree ·of October 18, 1877, is in anywise anomalous, the explanation is to be found in the fact that it was made by consent, and at the instance of all the parties then before the court. The original decree, which that of October 18,1877, snperseded, was quite different, and was open to no such criticism. After the lapse of more than four years the defendant has applied to the court by petition, asking that the decree of October 18,1877, be essentially modi" fled, for the correction of an allQged mistake in its terms. Moses 1. Coleman has flIed his assent; and, if he and the defendant were alone interested, there would be no reason to deny the application. ·But the fact is that the amendment sought will seriously affect· certairi creditors of the bankrupt copartnership, the Titusville Savings Bank, and is intended so to operate. These creditors are before the court by their counsel protesting against the allowance of the amendment, and the real question is whether as against them the decree should be rn:odifled. Claiming that they are entitled to pro rata shares of the assets which the defendant "collected and converted into 'money in his capacity of assignee of said copartnership under state law," and which were excepted. out of the operation of the decree, these creditors are pursuing their remedy in th'e state court. As to them,there. fore, the present application must be considered as adverse.