the question as to whether there was notice of a change of address given to either of these agents, and instructed that, if there was, then there was no forfeiture. We think there was ample evidence to sustain the instructions. The notice to Hall is not denied, but it is claimed that it was given to him upon the street in a casual conversation, and therefore, was not binding upon the company. There was evidence tending to show that Hall was a general agent, and uncontradicted evidence that he received the notice. And we think it was given to him in such a manner as to bind his principal. The place where the notice is given is entirely immaterial, if it was conveyed to him as agent of the company, and for the purpose of having it act thereon. According to the evidence, Hall was directed to change the address from Fifteenth and Harney to the general delivery. On the thirteenth day of July, 1891, Mrs. Goodwin wrote a letter to the Commercial National Bank, which bank was then collecting premiums for defendant, to forward all notices of assessments under her husband's policy to 57 Twenty-third street, Chicago, Illinois. This letter was received by the bank July 15th, and on the 16th it notified the defendant to send notice as requested. This notice was received by the company July 20, 1891. The only question with reference to this notice of July 13, 241 1891, is, whether it was binding upon the defendant. Appellant contends that notice to the bank was not notice to it, for the reason that it had no authority whatever, except to collect and receive premiums, and to deliver receipts to the assured. It seems that this question has heretofore been decided by this court adversely to appellant, in the cases of Mayer v. Mutual Life Ins. Co., 38 Iowa, 304; 18 Am. Rep. 34; Loughridge v. Iowa Life etc. Assn., 84 Iowa, 141, and authorities cited. The authorities cited by appellant's counsel are not in point.

5. It is also insisted that there was evidence to show that the assured received the notice, although it may have been incorrectly addressed; that it in fact went to the general delivery, where the assured directed it should go, and, as it was never returned to the defendant company, the presumption obtains that it was delivered. It is sufficient to say, in answer to this contention, that no such issue was made in the pleading. The claim was, that a notice was sent, as required by the New York statutes, to the last known postoffice address of the assured, and, as payment was not made within the time allowed thereby, that the policy was forfeited. The defendant did not, in any of its pleadings, aver that the assured had actual notice of the maturity of the premium. But, aside from all this, the notice was not addressed to the city or town where the assured at the

time resided. He was then living in Chicago, and it seems to be a well-established rule that, under such circumstances, no presumption arises that the addressee received the notice: Sce Henderson v. Carbondale etc. Coke Co., 140 U. S. 25; 2 Wharton on Evidence, sec. 1323; Carter v. Brooklyn Life Ins. Co., 110 N. Y. 15; Garretson v. Equitable etc. Assn., 74 Iowa, 419; Garbutt v. Citizens' etc. Assn., 84 Iowa, 294; 242 Phelan v. Northwestern etc. Jns. Co., 113 N. Y. 147; 10 Am. St. Rep. 441. The court did not err in refusing to submit the question as to the actual receipt of the notice by the assured, or in refusing to give the instructions asked by defendant upon this subject,

6. Complaint is made of the fifth paragraph of the court's charge, which required the defendant to show that the sum claimed as premium, i. e., eighteen dollars and sixty-five cents, was the correct amount which was due in August, 1891, after awarding and deducting return premiums for that quarter, etc. No valid objection can be lodged against this instruction, in view of the terms of the policy, which provide that the premium which could be required, was "less the return premiums awarded," and that "maximum quarterly premiums were to be reduced in each case by surplus portion of preceding payments not needed for the death fund and quarterly fund." It appears that in every instance these return premiums had been deducted from premiums previously paid, and that they varied in amount. Knowledge as to the amount of the return premiums was solely in the possession of defendant, and, under well-known rules, the burden was upon it to prove the amount thereof. Plaintiff could not do it, as she had no data upon which to act. This is merely stating a general rule-that where the amount of the premium to be paid is variable, and knowledge as to the amount rests peculiarly with the company, that it must show that the amount demanded was the correct sum: Tobin v. Western Mut. Aid Soc., 72 Iowa, 261; Underwood v. Iowa Legion of Honor, 66 Iowa, 134; 2 May on Insurance, sec. 345 a. The instructions given by the court with reference to this subject were correct, and those asked by defendant, in so far as they embodied correct rules of law, were given by the court.

243 7. Certain errors are assigned in the admission and rejection of testimony. We need not set them out. It is sufficient to say that we discover no error. The questions presented are unimportant, and this opinion has already grown too long.

8. Some claim is made that the policy in suit, being a renewable one, from quarter to quarter, is not governed by the ordinary principles applicable to life insurance contracts. Suffice it to say, in answer to this claim, that we see no merit in it. The

policy in suit is a continuing one. It gave the assured and his bcneficiary the right to make it incontestable as to certain matters, and this they did by the payment of premiums for more than two years. It also gave them the right to deductions for return premiums, as before stated, and promised them an additional credit at the end of ten years. Construed with such of the provisions of the New York statutes as we have, it clearly appears that it should have no other effect than an ordinary life policy, which could be forfeited for nonpayment of premiums the same as other insurance policies. The contract was one of insurance, pure and simple; and the ingenuity of the author should not be allowed to work a fraud or injustice upon those who confided in the belief that upon payment of premiums after notice, as required by the statutes of New York, they, after the expiration of two years, had an incontestable policy. We have patiently considered the whole case, and examined a long line of authorities cited by counsel on either side, and have also made an independent search for cases which would aid us in disposing of the questions presented; and, while we have not discussed every proposition presented, we have considered those matters which we believe to be controlling, and are of the opinion that the judgment should be affirmed.

CONCERNING.

LAWS OF OTHER STATE-PRESUMPTION If there is no proof of the law of another state, nor judicial knowledge of the origin of such state, such as raises the presumption that the common law prevails there, it is presumed that the law of the forum in which the issue is being tried is the law of that state on the question under consideration: Peet v. Hatcher, 112 Ala. 514; 57 Am. St. Rep. 45, and note; Schultz v. Howard, 63 Minn. 196; 56 Am. St. Rep. 470, and note.

INSURANCE-CONSTRUCTION OF POLICY.-If there is doubt or uncertainty as to the meaning of terms employed in a policy of insurance, the language must be liberally construed in favor of the assured so as not to defeat, without a plain necessity, his claim to indemnity, which in effecting the insurance it was his object to se. cure: Traveler's Ins. Co. v. Dunlap, 160 Ill. 642; 52 Am. St. Rep. 355, and note. But construction must not make a new contract for the parties: Schuermann v. Dwelling House Ins. Co., 161 Ill. 437; 52 Am. St. Rep. 377, and note.

INSURANCE PLACE OF CONTRACT. A contract of insurance, where the insurer and the assured reside in different states, inay adopt the law of either state by express provisions contained in such contract, and, when such is the case, it will be deemed a contract of the state thus adopted: Monographic note to McGarry v. Nicklin, 55 Am. St. Rep. 51. See Daggs v. Orient Ins. Co., 136 Mo. 382; 58 Am. St. Rep. 638, and noté.

INSURANCE CONSTRUCTION OF POLICY-INCONTESTABLE CLAUSE-SUICIDE OF INSURED.-A life assurance assoclation issuing a policy providing that it does not assume the risk of the death of the insured if caused by his own hand, but that such condition may be waived in writing, and then providing that after five

years from the date of the policy it shall be "incontestable from any cause" except Bonpayment of dues or mortuary assessments, if the age of the applicant is correctly stated, is liable for the full amount of the policy if the insured commits suicide or dies by his own hand more than five years after the policy is issued, provided the insured has stated his age correctly, and all dues and mortuary assessments have been paid up to the time of his death: Mareck v. Mutual etc. Assn., 62 Minu. 39; 54 Am. St. Rep. 613, and note.

INSURANCE-ASSESSMENTS-FORFEITURE FOR NONPAYMENT.-No presumption arises in favor of the regularity or legality of the assessments of a mutual benefit society: American etc. Aid Soc. v. Helburn, 85 Ky. 1; 7 Am. St. Rep. 571. Assessments not legally made need not be paid, and no rights are lost by nonpayment: Note to Bankers' etc. Assn. v. Stapp, 19 Am. St. Rep. 784. To make a member liable for an assessment, notice must reach him. Notice sent by mail is effectual if actually received, but the association takes the risk of its reaching him. Until it does, he is not chargeable therewith: Monographic note to Lake v. Minnesota etc. Assn., 52 Am. St. Rep. 574.

INSURANCE-LIFE-REINSTATEMENT-EFFECT OF.-The effect of the reinstatement of the assured after his policy has been forfeited is to revive the original contract: Monographic note to Lake v. Minnesota etc. Assn., 52 Am. St. Rep. 577.

MORTGAGE,

COOK V. PRindle.

[97 IOWA, 464.] AFTER-ACQUIRED

TITLE, WHEN

NOT

AFFECTED BY.-If the mortgagors own an undivided interest only, and they intend to give, and the mortgagee to receive, a mortgage restricted to that interest, but, by mistake, the mortgage describes an Interest in severalty, title subsequently acquired by the mortgagors is not subject to the mortgage, though the code provides that, when a deed purports to convey a greater interest than the grantor was at the time possessed of, any subsequent interest inures to the benefit of the grantee.

MORTGAGE, REVIVING AFTER BARRED BY THE STATUTE OF LIMITATIONS.-A mortgagor who has parted with the title to land cannot afterward revive the mortgage debt if it has become barred by the statute of limitations, so as to continue the lien of the mortgage as against one who purchased when the mortgage appeared to be barred and without notice of the attempted revivor.

Suit in equity for the foreclosure of a mortgage. The decree entered granted part of the relief asked by the plaintiffs, but denied them other relief, and they thereupon appealed.

P. Henry Smythe, for the appellants.

A. M. Antrobus, C. L. Poor, and Seerley & Clark, for the appellees.

A. H. Stutsman and W. W. Dodge, for the intervenors.

465 KINNE, J. 1. A rehearing was granted in this cause, and it has been again submitted to us for determination. The original opinion may be found in C3 N. W. Rep. 187.

April 1, 1870, Abial Prindle, Cordelia Prindle, Sarah A. Prindle, and Catherine Prindle, executed to David W. Grimes their promissory note for eleven hundred and thirty dollars and forty cents, due two years after date, and drawing ten per cent interest, payable annually. August 1, 1870, the same defendants executed a mortgage, to secure the payment of said note, upon certain real estate. Said mortgage was duly recorded. This suit is brought for a judgment on said note, and for the foreclosure of said mortgage. February 15, 1882, the makers of said note and mortgage indorsed upon the back of said note the following: "We do hereby admit that this note, with interest, is unpaid, and renew the promise therein contained to pay the same, and the mortgage given to secure the same is to stand and continue in force for the security thereof." This was signed by all of the makers of the note. January 25, 1876, said Prindles conveyed to the defendant, Lukenbill, forty acres of the land, which was embraced in their mortgage to Grimes. Lukenbill took immediate possession of said land, and continued to occupy it until September 17, 1888, when he conveyed the same to intervenor Sackrison, who has ever since been in possession of it. April 16, 1886, said Prindles executed their note to E. Rabb, for three thousand dollars, and secured the same by a mortgage, embracing all the land included within plaintiff's mortgage, and other lands, except that the Lukenbill forty acres was not embraced therein. Afterward, the Rabb note and mortgage were assigned to the defendant, J. J. Seerley, and by him to his wife, L. L. Seerley. April 28, 466 1887, said Prindles executed their note to L. L. Seerley, for one thousand dollars, and secured the same by a mortgage upon the lands in controversy, except the Lukenbill forty and other lands. March 20, 1888, said Prindles executed their note to L. L. Seerley, for seventeen hundred and fifty dollars, and secured the same by mortgage upon the same lands. November 5, 1891, defendant Worthington obtained three judgments in the district court of Des Moines county against the defendant A. H. Prindle. At the tax sale, on December 2, 1889, C. C. Clark purchased the real estate in question, except the forty acres, for the taxes of 1888, and thereafter assigned the certificates to the defendant J. J. Seerley, who received the tax deeds for the land after the commencement of this action, to wit, December 17, 1892. Defendants Prindle answered, averring that at the time they executed the mortgage io Grimes, they only owned four undivided sevenths of the land described in the mortgage, and that, by mistake, said mortgage was so drawn as to cover the full title to said land. They asked that the mortgage be reformed. They also pleaded that, at the