apparent that its beregarde'das pad' and p'ared of the execution of the trust expressed therein. We are, therefore, of the opinion that the railroad' company was authorized to retain out of the proceeds of' the sitle"of the lands embraced in the mortgage its reasonable expenditures incurred making such sales. The bill does not aver that the expenditures 01 the raill'oad were unnecessary orlmreasonable; and it must, therefore, be considered as only raising the question whether the railroad' company was entitled to make any charge for selling the land, and to deduct the same from the proceeds of the sales. . The bill further alleges that a large sum has been paid by the company, out of the proceeds of sales of land, for taxes upon the same. As legal taxes were liens upon the land prior and paramount to any claim under the mortgage, it is difficult to see upon what ground their payment can be regarded as an expenditure outside of the trust. " The railroad company, by the terms of the mortgage, was to be suffered and permitted to possess, manage, use,' and enjoy the lands in the same manner and with the same effect as if the deed of trust and mortgage had not been made, except as in the instrument etherwise provided; and it was, as we have already seen, to be allowed to manage the matter of selling the lands. The control, management, and sale of the lands by tha railroad company was, therefore, provided for as part of the contract and of the trust. 'rhe payment of the taxes accruing from year to year was plainly a part of the proper management of the estate. If it had been neglected, the whole prop'erty would have been lost, and the bondholders would have been the chief sufferers. If the land had been sold subject to the taxes, the price received for it would have been correspondingly less, and therefore no damage has resulted to any of the parties interested by reason of their payment. We are, therefore, clearly of the opinion that the payment of the taxes was properly within the duties devolved upon the company in the management and sale of the lands. If we were in doubt as to either of the questions raised by the demurrer, the fact that the parties themselves who made the contract at once adopted the construction above suggested, and have for many years acquiesced in and acted upon it, would lead us, without hesitation, to resolve our doubts against the claims of the complainants. The trustees, acting upon the theory that the company was entitled to retain the expenses in question, including sums paid for taxes, have from time to time received the net proceeds of sales ascertained upon basis, and have voluntari,ly executed releases in. accordance WIth. the terms of the mortgage. It is not necessary to determine whether such action, continued for so long a. period, is an absoestoppel, which deprives them of the privilege of now being heara to assert that'this construction was erroneolis. !tis :enough to suy
that thec"onstrfIction which the parties themselves own contract; and, upon which they have so long acted, is:the pne which the court pught to adopt. The demurrer to the bill is, sllstained. FOSTER, J., concurs.
LUNT and others v. BOSTON MARINE INs. Co.
(Circuit Court, S. D. Nelo York.
'l\!ARINE INSUllAN('E-REPRESENTATIONS-REPAIRS TO VESSEL-SEAWORTIIINESS, BURDEN OF PnOOF, '
'Where a vessel had put into Shelburne, Nova Scotia; leaking and in distress, and repairs were recommended after a survey, and the vessel sailed for Yarmouth for repairs, and a memorandum of in'surance was effected upon the cargo before hcr arrival at Yarmouth, the application for the insurance containing a statement that the vessel was to be repaired at Yarmouth, lteld, in an action on the contract .of insur:'lI1ce, that the requirement was only that such repairs as were necessary should be made, and if none were necessary none need be made; and that, although in ordinal'}' Cases the burden of proof in cases of defense of unseaworthiness of the vessel rests upon the defendant, in this ease, with statement that the vessel was to be repaired at Yarmolith, in the application, the burelen rested upon the plaintiJI, Lunt v, Boston Marine Uo. 6 FED. HEP, 562, followed.
Motion for New Trial. TVelcollll' U. Beebe, for plaintiffs. Robert D. Benedict and Enos N. Taft,for defendant. WHEELER, J. This suit i'l brought upon a contract of marine in,surance on a cargo of potatoes on board the schooner Lacon from .Yarmouth, Nova Scotia, to New York. It was tried, and there was ,ll verdict for the plaintiffs, 'which waR set aside on motion of the defendant. G FED. REP. 5fi2. It has now been again tried with a like result, and been heard upon a, similar motion. The vessel had put into Shelburne, Nova Scotia, leaking and in distress. The master :had. made a protest against her to the consular agent, stating her .condition and asking for a survey, which was had, recommending repairs. She sailed toYarD1outh for repairs. The insurance was effected before her ani..-al there, on an application by the owners, signed by and on behalf of them, in due form. A short ,memorall·dum of the insurance was made' and delivered to the insured, and no . policy was written,ont. The application was produced on the trial, 'and contained tue statement that the "esse) was to be repaired at 'Yarmouth.' The plaintiffs' evidence tended to show that this state-ment "'usnot' in the application: when made, but was inserted after'wards, without,theirknQwledge or consent; and that the vessel was "examined at: Yarmonth, :and was not le.aking, anddjcl not: need.any