ij'Jhe course was taken there CGuld have beenlloqW;lcu.lty. despite the acts of the schooner, in keeping clear of pier 45 a half a mile above, had seasonable Ineasures been taken to do SQ. The libelant is entitled to a decree,with costs." !j
EARNMOOR t1. CALIFORNIA
(Df8tnict;UCYlWt, S. D. New Y<Wk. .January6,1890.)
LlIABnqB IN8Ul\ANOB-AcTIOlII OlllPOLIcy-PAllTIESo,
Upon: a 'marine insurance policy issued to "A. E., lIpon account of whom it may concern, in case' of' loss; t.o 00 paid, to 'him or order," where the insurance was effor the QWJ;ler at the time, held, that, the W;loS , in the naweof the libelant, who was the maured .The !l*lIel ahould show, ports to ti\ke effect. .
at the time the policy pur.. '
, , '.'
:It belng'eettled in thlsclrouit thateeaworthinessls presumed, a libel on a marine policy IJ.otalllWeseaworthiness. What need not be .proved,nee d notbe . ThisrUre'DrOmotessimpUcity as 'to real' tssue' intended to'bettred. ThepleBlbfl1nseaworthinesa,,if that issnels 'desired to be raised, comes more properly defell-se.
. :In ,Wing,
&: Putnam,. for
. . ,
'fJie ,lpsunng "Alfred Earnshaw, on account of whom It may concern, lD case of loss, to be paid to bim or order." Exceptions are taken that the libel does not allege (1) any order or transfer from Earnshaw; nor (2) that the libelant had any interest in the policy when issued; nor (3) that the vessel was seaworthy. 1. The libel alleges tbat the libelant, at all times hereinafter mentioned, was the owner of the ship, and that "said insurance was made for and on behalf of the libelant." As the policy is expressed to be isaued "on account of whom it may concern," the libelant, under that allegation of the libel, is the real party assured, if he was then the owner. Earnshaw is but the agent; and the action, in such case, may be brought in the name of the principal, without any written transfer, as was long since adjudged. Sargent v. Morris, 3 Barn. & Ald. 277, 280; Farraw v. , Insurance Co., 18 Pick. 53, and cases there cited. 1 Phil. Ins. 199. Subsequent provisions in this policy, moreover, expressly state that payments are to be made to the "assured;" and the assured, under a policy in this form, is the person for whom the insurance was effected, i. e., the person who is the real party in interest. The word "him," in the phrase "him or order," includes the "assured" as well as Earnshaw; and no written order or transfer is needed, except to enable some third party
. to claim payment. The principal may sue on such an' insurance con'tract, made for his benefit. Story, Ag. §§ 160, 160a, 394. ." 2. I think the libel should show that the assured had an interest in the vessel when the policy was issued and purported to take effect. The word "hereinafter" does not strictly cover this point; doubtless by inadvertence. 3. It is the rule, in this circuit, at least, that in actions on marine policies of insurance the presumption is bf the seaworthiness of the vessel, and that the onus of;the defense of !1nseaworthiness is upon the un· derwriter. Luntv. Insurance Co., 6 Fed. Rep. 562, and cases cited; Batchelder v. Insurance 00., 30 Fed. Rep. 469. See Pickwp v. Insurance 00., L. R. 3 Q. B. Div. 594. The primary rule in pleading is that what must and,conversely, that what the law presumes be averreg,In\lst be and need not be proved, need not be averred; also, that the plaintiff need notayerwhat more properly comes from the other side; 1 Chit. PI. *221, >1'<222. When, then, it is determined that no proofofseaworthi. ness need'be given, all·reason.for· requiring an Of seaworthiness in the libel disappears. The defendant, if he issue, can do 'so by his anSW8f with equal convenience, and more properly; and this rple;jqadtiliraltypractice, tj:lnds to simplify th'l .. pleadings, to . ;dispense. w.Ith needJesstechnicalities; and to promote certainty as to the real issues intended to be tried. All the references in'adjudged cases to the need of averring sel),\Vorthiness proceed upon the supposed need of supplying some primajacie evidence of it. When' the legal presumption dispenses with such proof, it should De held to dispense with the lJ,verment also; and, as I have said, this trite is a desirable and blmeficial one in Guy v. l'l1.8urance 00., 30 Fed. Rep. 695. The first and .. third exceptions are therefore overruled; the second, sustained. . ,
BROWN t>. CRANBERRY IRON & COAL CO.
'11. CRANBERRY IRON
(Of,rcuit Oourt, W. D.Nf.'YT'th OaroZma.
November Term, 1889.)
PA.RTITION-DISPUTED TITLE-SUY OJ!' PROCEEDINGS.
Where defendant in partition denies complainant's title, it is proper to stay proceedings in the suit for a year, so that complainant may establish his title by an action in ejectment.
In Equity. On motion to stay proceedings. Suit by John E. Brown and W. B. Carter against the Cranberry Iron & Coal Company. . Moore« Merrick, for complainants. W. A. Hoke and J. W. Buwrnan, for defendant. DICK, J; This suit in equity was instituted for the purpose of obtaining partition of the mineral interests in the lands described in the bill of complaint. The plaintiffs assert a legal title to such minerals, as tenants in common with the defendant company. In its answer the defendant company denies the title of the plaintiffS, and avers that for many years it has hads01e ownership and seisin of the soil and of the mil'leralsof the landEl mentioned in the bill of complaint; .and further insists that, if the plaintiffs ever had any legal or equitable claimed, they have lost their right to institute this suit by lapse of time; and they are also bound by the matter of equitable estoppel set up in the answer. Replication was filed, and proofs have been taken by the parties on both sides. On the rule-day in November, 1889, a motion was duly entered on the order-book in the clerk?s office by the counsel of the defendant, to set down this case for hearing upon the pleadings and the proofs. Objections to this motion were entered by the counsel of the plaintiffs, and they also entered a motion Jor an order to suspend further proceedings in this suit, and to allow the plaintiffs a reasonable time to estabJish their legal title, and regain joint possession by an action at law in the nature of an action of ejectment.-and that the defendant be required to admit an ouster on the trial at law. These motions are now before me for hearing. There can be no doubt that minerals in place in the earth may be owned and conveyed as real estate, and the owner have a freehold in the same·. Such interest may be held by different persons as tenants in common, even if one of them had a fee-simple title to the soil in which the minerals are imbedded. If the plaintiffs had commenced special proceedings for partition in a court of this state, they could have had a speedy and adequate remedy, as such court has ample jurisdiction to adjust and determine all questions at law and equity in one proceeding. As the plaintiffs are non-residents, they have an undoubted right to institute.their suit in this: court, and are under no obligation to seek remedy and relief in a state court. They could not, on the law side of this ODUrt,avail themselves of the proceedings for partition provided for by v.40F.no.15-54