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interpretation of the policy this word is important. The form of the policy was intended to cover two classes of risks. There are large interests in real estate owned by persons who have neither title nor possession. The form of this policy is adapted to the insurance of such interests, as well as to the insurance of property where the insured is the owner of the title. Where the insured is the owner of only an interest in the estate the word "interest” used in the forfeiture clause has force, and any change in such interest would forfeit the policy; but where the insured is the owner of the title the word "interest" has no application. In the latter case, if any change take 131 place in the title the policy would become forfeited.

The insurance in the present case was procured by one owning the title; as to him only a change in the title would forfeit the policy. We do not feel inclined to follow the decision of Gibb v. Philadelphia Fire Ins. Co., 59 Minn. 267, 50 Am. St. Rep. 405, 61 N. W. 137, because we do not believe that the word "interest" as used in the policy in that case, which was the same as the one we are considering, is broader than, and inclusive of, title; and because in that case it was wholly unnecessary to define "interest." After Gibb had procured the insurance he sold the insured property by a written contract, and gave possession to the purchaser, who remained in possession until the property was destroyed. This of itself was such a violation of the express terms of the policy against change of title or possession as would render the policy void.

The main contention of defendant is that the contract between Baker and Garner for the sale of the insured property, having been fully performed by Baker, is enforceable in equity against Garner; therefore, it operated as a present change of interest in the property, within the forfeiture clause of the contract. A party pleading a forfeiture must make it clear that a forfeiture has taken place; he cannot speculate upon what a court of equity would do in a given case, or anticipate its decrees, and upon an assumption that his forecast is correct ask a court to declare a forfeiture. For the purpose of finding grounds for a forfeiture courts of law will not go so far afield as to determine the enforceability of a contract in equity between parties not before it. If, however, this court should believe that specific performance of that contract could be decreed, the relief asked

for by defendant would not be granted. It has been held that an executory contract to convey insured real estate does not operate as a forfeiture of the policy under a provision that it should be void “if the interest of the 132 assured be or become other than the entire, unconditional, unencumbered and sole ownership of the property" (Arkansas Fire Ins. Co. v. Wilson, 67 Ark. 553, 77 Am. St. Rep. 129, 55 S. W. 933, 48 L. R. A. 510; Franklin Ins. Co. v. Feist, 31 Ind. App. 390, 68 N. E. 188), or where the condition of the policy is that it shall be void in case "the property be sold or transferred, or any change take place in title or possession" (Browning v. Home Ins. Co., 71 N. Y. 508, 27 Am. Rep. 86), or "if any change take place in the interest, title, or possession of the subject of insurance": Erb v. GermanAmerican Ins. Co., 98 Iowa, 606, 67 N. W. 583, 40 L. R. A. 845; Home Mutual Ins. Co. v. Tompkies & Co., 30 Tex. Civ. App. 404, 71 S. W. 812.

The judgment is reversed, and the cause remanded.

All the justices concurring.

Conditions in Policies of Insurance against alienation of the property insured are construed strictly, courts having in view the object of the insurer in inserting them. The change in title contemplated is such a change as is likely to induce the insured to be less watchful in guarding the property against fire, or as to offer a temptation to burn it: Commercial Union Ins. Co. v. Scammon, 126 Ill. 355, 9 Am. St. Rep. 607; Schloss v. Westchester Fire Ins. Co., 141 Ala 566, 109 Am. St. Rep. 58. A transfer by the insured of less than his entire interest in the property does not avoid the policy: Clinton v. Norfolk etc. Ins. Co., 176 Mass. 486, 79 Am. St. Rep. 325; neither does a sale of the premises which is not fully consummated: Magoun v. Firemen's Fund Ins. Co., 86 Minn. 486, 91 Am. St. Rep. 370; Hanover etc. Ins. Co. v. Brown, 77 Md. 64, 39 Am. St. Rep. 386; International Wood Co. v. National Assur. Co., 99 Me. 415, 105 Am. St. Rep. 288. A mere executory contract of sale does not work a forfeiture: Arkansas Fire Ins. Co. v. Wilson, 67 Ark. 553, 77 Am. St. Rep. 129. Compare Skinner Shipbuilding etc. Co. v. Houghton, 92 Md. 68, 84 Am. St. Rep. 485.


[73 Kan. 229, 84 Pac. 1024.]

SURETY'S Accountability to Principal and Cosureties.-Where a surety converts into a judgment notes assigned to himself and cosureties as security for the indebtedness of their principal, and at the execution sale thereunder purchases in his own name the land levied upon, and thereafter he and a cosurety buy notes secured by a trust deed on the land, and purchase the land at the sheriff's sale under such deed, and then rent and finally sell the land to an innocent purchaser, they must account for the profits of the entire transaction to the principal and another surety, such surety having paid part of the principal indebtedness and both he and the surety having been ignorant of the transactions of the other sureties. (p. 467.)

Sapp & Wilson, for the plaintiff in error.

A. L. Majors and Sapp & Brown, for defendants in error.

229 SMITH, J. In 1893, defendant in error, W. L. Harper, who is also a cross-petitioner in error, became the agent of the Aetna Powder Company at Galena, Kansas, probably to sell the goods of the company on commission. At any rate Harper gave a bond, with Page, Leeman and Prehm as his sureties, conditioned that he would pay the company all the moneys which might become due to it from him as agent. About two years thereafter Harper had become indebted to the company in the sum of three thousand seven hundred and ninety-one dollars and forty cents, and the company called upon his sureties to settle the debt, which they did on July 25, 230 1895, by giving their four joint promissory notes for nine hundred and forty-seven dollars and eightyfive cents each, to become due in six, twelve, eighteen and twenty-four months, respectively, and bearing interest at six per cent from date.

To indemnify his sureties Harper assigned to one of them (Leeman) a large number of notes and accounts, under an agreement that the same were to be collected by Leeman as far as possible and the proceeds applied to the payment of Harper's debt to the powder company, the remainder, if any, to be returned to Harper. Harper also secured the indebtedness by a real estate mortgage to Page, another of the sureties. The mortgaged land was afterward sold and the proceeds properly applied, as to which there is no controversy. Am. St. Rep., Vol. 117-30

Leeman was able to make but slow progress in the collection of the notes and accounts, and the sureties had in the first instance to pay the greater part of the indebtedness, which was afterward repaid, in part, from the proceeds of the sale of the mortgaged land. Page was unable to meet his portion of some of the notes as they became due, but later he paid to Leeman and Prehm the portion they had advanced for him.

Among the claims assigned by Harper to Leeman to indemnify the sureties were some notes against one Harden, who resided in Missouri, and these were sued upon by Leeman and judgment was procured against Harden for something over one thousand dollars. Leeman caused execution to be issued thereon and to be levied on a business lot and building in Carterville, Missouri. At the sheriff's sale Leeman bought the property for ten dollars, and took the sheriff's deed in his own name. Leeman then took his cosurety Prehm into the deal, and together they bought some notes for about fifteen hundred dollars which were secured by a trust deed on this property, caused the property to be advertised and sold under the trust deed, bid it in, and took a sheriff's deed in their own names jointly. Thereafter they rented the property, receiving, 231 it is claimed, about seven hundred dollars as rent, and then sold it for about five thousand three hundred dollars.

This suit was brought by Page against his cosureties, Leeman and Prehm, for an accounting of the proceeds of the Harden judgment and the Carterville property. Harper, being made a party defendant, filed a cross-petition for the same purpose.

The case was tried without a jury and judgment was rendered in favor of Page for fifty-nine dollars and seven cents, being his portion of three hundred dollars, less some costs or expenses, which had been received by Leeman and Prehm from the sale of the balance of the Harden judgment to Mrs. Harden. Judgment was rendered against Harper, and the costs were divided. Page brings the case here, and Harper files a cross-petition in error.

Eleven assignments of error are made by the plaintiff in error, Page, and thirteen by the cross-petitioner in error, Harper. There is, however, practically only one question presented for consideration, viz., Should Leeman and Prehm account to Harper and Page for the profits received from

the Harden property, including the rents and the amount received from the sale of the property, deducting expenses and amounts paid in perfecting title? The issue on this question was fairly presented by the petition and cross-petition, which alleged the facts as above recited. To these pleadings the defendants, Leeman and Prehm, answered by general denial only.

The relation of the several parties as above recited is established by uncontroverted evidence, and is admitted by the brief of defendants in error, but they say there was no evidence that Leeman agreed to act 232 as trustee for Harper and Page in the purchase at the execution sale, or that Leeman and Prehm agreed to act as such trustees in the purchase of the trust deed and the notes secured thereby or in purchasing the property at the sale had thereunder. No such agreement was necessary. Their admitted former relation to their principal and cosurety, and to the judgment debt, on which it was their duty to realize as much as possible, made Leeman, at least, such trustee, and Prehm also if, as it is to be presumed, he knew all the facts.

When the owner of a judgment or mortgage lien on land, or one who represents such owner, bids at a sale ordered to satisfy such lien, the very fact that the one who makes such bid may raise it to the entire amount of such lien without the investment of an additional dollar often gives such bidder a decided advantage over other bidders, who must back their bids with their cash; especially is this true where the lien or the lien and prior liens approximate or exceed the value of the property. Thus other bidders are deterred from competing in the uneven contest and often refuse to bid at all. It is unconscionable that one who stands in the place of the owner, as Leeman did in this case, the judgment being in his name, should be allowed to take such advantage of his position to the detriment of his principal, and probably to the detriment of the judgment debtor also: Case v. Carroll, 35 N. Y. 385; 1 Beach on Trusts and Trustees, sec. 100.

That Leeman held the lien in trust for himself, his cosureties and Harper will not be questioned. He held the property, which he acquired to an advantage, through his relation to such lien, and must hold the same in the same way he held the lien: Winkfield v. Brinkman, 21 Kan. 682. The trust in the land arises by implication of law from the facts and circumstances of the case: Bank v. Woodrum, 60

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