When, then, may the circumstances and conditions of the two hauls be said to be dissimilar? Judge Cooley, in the same case, answers this question:
,"Among other things In cases where the circumstances and conditions of the traffic were affected by element of competition and where exceptions might be a necessity if the competition were to continue. And water competition was, beyond doubt, especially In view:'
In the case from 50 Fed. above cited, this is one of the rubrics:
"Los Angeles, CaL, is a point to which there is active competition In certain kinds of freight between several transcontinental railway lines, direct or b)' water, via Vancouver and San Francisco; alSO, by ocean freights via Aspin·" wall and the Straits of Magellan, from points east of the MisSouri river. And a through rate on the same kind of freight, lower than to San Bernal" dinQ, an Intermediate, noncompetitive point, 60 miles from Los Angeles, on one of the competing railroad lines, is llot prohibited by the act, since the circumstances and conditions were SUbstantIally dissimilar."
The circumstances of the case at bar are closely like those of the case quoted. Charleston is,a competitive point between all railroad routes, routes partly by rail and partly by water, and routes all water. If the defendants had not consented with each other to lowertherate, no hay whatever would come from the hay-producing territory tributary to Memphis, and all the Southeast Atlantic states would be compelled to rely on otp.er portions of the West, North, or Northeasf for hay. The evidence clearly shows that the rate to Ch:arl,eston was forced down by this competition. But this is an advantage to all the territory tributary to Charleston, and allstations share in it. No such competition exists at Summerville, a small inland town. If it, and others like it, were permitted to ,spare in the circumstances ,and conditions surroundingOharleston, and to get the benefit the competition which Charleston enjoys and they have not, then,e;x:uecessitate, the South Carolina Railway will be called between its through business and its local business, and upon to in this election to give up the former. Thus, all stations on the line of road will pay local freight on hay, and the market, to thl" extent of imports from Memphis, will be destroyed. The interstate commerce law was ,intended to promote trade. Such 'a construction as is now sought would destroy competition, the life of trade. The bill is dismissed.
MINERS' SAY. BANK v. SANDY et al. (CirCUit Court, D. Kansas. January 23, 1800.)
HOMESTEAD-RIGHTS OF WIFE-LAW OF KANSAS.
One S. induced his Wife, who was of unsound mind, to execute a mortgage on their homestead, situated in Kansas, the mortgagee being Ignorant of the wife's incapacity. Upon tht institution of a suit for foreclosure, to which S., his wife, and their children were made parties, S. set up such incapacity as a defense. Pending the suit, So's wife died, and the bill was dismissed as against the children, at plaintitI's request. Held, that as, under the laws of Kansas, the right of the wife in the homestead was only a right to be protected in its enjoyment during her life, the title remaining in the husband, S., could not, after his wife's death, resist the enforcement of the mortgage.
MINERS'SAV. BANK tI. SANDY.
TholL J. White,for defendant.
Basslngton, Smith & DalIas and Clifford Histed; for plaintiff.
WII"UAMS, Di&trict Judge. On the 1st day of July, 1886, Edwin Sandy was the owner of the northeast quarter of section 24, in township 4 S., range 3 E. of the sixth P. M., containing 160 acres of land, situated in the district of Kansas. He was a married man, and the bead of a famlIy, and occupied the 160 acres of land as a homestead. Upon that date he executed to the Equitable Mortgage Company a note in the sum of $2,000, and to secure the payment of the same he executed, in due form of law, a mortgage upon said 160 acres of land, his wife, Mary H. Sandy, joining with him in the execution of the note and mortgage. The said note and mortgage were afterwards assigned, for a valid consideration, before maturity,to the Miners' Savings Bank, the plaintiff in this action. Default having been made in the payment of the sum of money thus secured, this action is brought to foreclose the mortgage, and con· demn the property secured thereby to be sold for the payment of said debt. Edwin Sandy and the children of Edwin Sandy and Mary H. Sandy are made defendants in the original bill, and Edwin Sandy, as guardian of Mary H. Sandy, who had been, after the execution of the mortgage and before the commencement of this ac· tion, declared insane, was also made a party. A.fter the commence· ment of this action, Mary H. Sandy died, and, upon motion of the plaintiff, the cause against the other dPfendants, save and excepting Edwin Sandy, was dismissed without prejudice, permission so to do having been granted by this court at a term long since past. The defendant Edwin Sandy answers the complaint herein, as did the childrep. of Edwin Sandy and Mary H. Sandy, setting up and contending that the mortgage in this cause was upon the homestead of the defendants Sandy and wife, and that at the time of its execu· tion Mary H. Sandy was insane and incapable of consenting to the execution of the mortgage, and that therefore the mortgage is void. To support the contention that Mary H. Sandy was insane at the time much testimony has been taken, and is submitted in this cause. Upon a careful consideration of it, although much of it is utterly incompetent and without weight in this controversy, taken as a whole it may be admitted that it does show that, 'at the time of the execution of the mortgage, the said Mary H. Sandy was of unsound mind and incapable of making contracts or consenting thereto. It is further contended by the defendant that the person who acted as agent for the Equitable Mortgage Company in this transaction was awareofthe fact that said MaryH. Sandy, at the time of the execution of the mortgage, was of unsound mind. I am of the opinion that the testimony utterly fails to show either that the person claimed to be the agent of the Equitable Mortgage Company was such agent, or that he knew, at the time of the execution of the mortgage, or before that time, that Mary H. Sandy was of unsound mind. If it shows anythhig, it l'lhows that he did not know and was not aware of any such condition! 'of mInd in Mary H. Sandy. But, from the view that
the it is not JIlaterial whether Mary H. Sandy, at the time of the 'execution of the JIlortgage, WlUl. :or was not insane. Mary H. Sandy is dead, and all her rights and interThe children of Mary H. ests have passed out of this have passed out of this case, because the Sandy Ilnd Edwin bill ia dismissed., If Mary H. Sandy were alive at this time, then the contention made by the able counsel for the defendant in thia. Cll-se would be readily considered by the court to be correct, in the main. True it is that the organic law and the acts of .the .legislaturE! of the state of Kansas protect the homestead of the of. tlj.e state against the claims of anyone, except it be for the. purchase money, for taxes, for improvements, and special liens created by the joint consent of the husband and wife. And this court very cheerfully follo}Vs the adjudications of the highest courts in the Kansas 'upon the question of homesteads. And when it does this, it is convinced that the doctrine laid down in Jenness v. Cutler, 12 Kan. 515, is a clear statement of the rights of the wife in the homestead. The court in that case uses the following . language:
"We suppose it may also be said that the wife has, In one sense, an estate in the homestead occupied by perself and husband, although the title to the same may be in her husband. But still, If It Is an estate, It is such an estate as has never been defined by law, an' estate unknown to the common law,technically, no estate at all. The whole estate In such a case Is, In fact, wholly In the husband, with simply a restriction for the benefit of his family upon his power to alienate the same. It Is true the wife has an Interest In the homestead,-a llresent and existing interest, an Interest that will be protected by the courts; but it Is simply an interest growing out of the marriage relation, and has no other or different foundation than the marriage relation and occupancy. It requires no instrument In writing to create such an Interest. nor does it reqUire any Instrullfent in writing to defeat it; ,and if the wife occupying the premises as a homestead, she would have nothshould die ing that would descend to her heirs or go to her executors or administrators, and nothing thilt she could devise or bequeath. The whole estate would continue to belong to her husband, and after her death he could sell and convey the same by lJ. deed executed by himself alone. As we have said, the wife has a present and existing Interest In the homestead, such as will be protected by the courts, but so she has in: all the other property of her husband."
In the case of Jenkins v. Simmons, 37 Kan. 496,15 Pac. 522, which is relied upon with much force by the learned counsel for the defendant, the court says that "it holds strictly to the rule that nothing but the consent of the wife to the alienation or mortgage upon the homestead, in the exact manner prescribed by law, can bind her." In view of these adjudications by the supreme court of the state of Kansas, and of, the fact that Mary H. Sandy, the wife, is dead, and that all the other defendants but Edwin Sandy have passed out of this case by proper orders, ,shall Edwin Sandy be allowed to set up as against the claim of the plaintiff here, the invalidity of the because of the fact that, as he contends, his wife was insane at the time of its execution? By the testin;lOny in this case, he himself prevailed upon the wife to go to the proper officer, acknowledge the mortgage, and execute the notes. It. was done at his instigation, and if anyone knew of the insane condition of Mary
MUTUAL LIFE INS. CO. V. LEUBIUE.
R. Sandy, it was Edwin Sandy. The plaintiff in this case did not know it. When Mary H. Sandy, the wife, no longer needs the protection of the law in order to secure to her her homestead, shall Edwin Sandy be allowed to reap a benefit of his own wrong? There is no contention but what the money was honestly paid over to Edwin Sandy, and some of it used by him to pay prior incumbrances and taxes, and for the general betterment of the place. The equities of this case are very strong against Edwin Sandy's defense. The mortgage is not void, but so long as Mary H. Sandy lived it not be enforced. Upon her death, there is no reason why it should not be enforced. In my opinion the plaintiff is entitled to recover the full amount of the note and interest coupons that remain unpaid, and to have a decree of foreclosure against the land for the payment of the same. Let such decree be entered.
MUTUAL LIFE INS. CO,. OF NEW YORK v. LEUBRIE. (Circuit Court of Appeals, Second Circuit. January 8, 1896.) No. 46. 1.
SUicide of the insured is not a breach of a warranty in his application that he wlll not "die by his own hand," if, at the time of taking his ute, his reasoning faculties are so far impaired that he is not able to understand the moral character, general nature, consequences, and efrect ot his act, or when he is impelled thereto by an insane impulse which he has not the power to resist. Insurance 00. v. Terry, 15 Wall. 580, followed. 1
A. warranty in the application that the insured will not die by his own hand has the same efrect as a condition in the policy that the same shall be void it the insured shall die by his own hand.
2. SAME-WARRANTIES AND CONDITIONS.
Where the policy is issued upon an application warranting that the insured will not die by his own hand, it is not necessary, in New York, for the plaintifr to allege the fact that the insured died by suicide, and to aver that he was insane at the time. It is not necessary to state the facts constituting performance of a condition precedent, but it is enough to aver generally that it was duly performed. Code eiv. Proc. N. Y. § 533. Upon the question as to the sanity of an insured person who has committed suicide, the testimony of nonprofessional witnesses, who were acquainted with him, in respect to his actions and apparent mental condition just prior to death, and their impressions as to his sanity, is admissible evidence. Insurance Co. v. Lathrop, 4 Sup. Ct. 533, 111 U. S. 612, and Insurance Co. v. Rodel, 95 U. S. 232, followed. same efrect as a previous instruction already given in the general charge.
4. SAME-EVIDENCE OF INSANITy-NoNEXPERT TESTIMONY.
5. TRIAL-INSTRUCTIONS. It is not error for the court to refuse a requested instruction to the
In Error to the Circuit Court of the United States for the Southern District of New York.
1 As to thll efrect of the self-destruction of the insured while insane, under policies containing conditions against SUicide, see note to Insurance Co. v. Florida, 16 C. C. A.. 618, 69 Fed. 932, where all the American authorities are collated.