benefit of a condition for her support joins with the grantee in conveying the property to a purchaser, for full value and with covenants for quiet enjoyment and against encumbrances, a case is presented where equity will interfere to prevent insistence by the heirs of the grantor on nonperformance of the condition. Huntley v. McBrayer (1916) 172 N. C. 642, 90 S. E. 754. In Vaughan v. Langford (1908) 81 S. C. 282, 128 Am. St. Rep. 912, 62 S. E. 116, 16 Ann. Cas. 91, the court, without deciding the point, expressed the opinion that a release of the tenant in fee conditional cannot be made effective by will, for the reason that a will can have no legal effect until the death of the testator, at which moment the possibility of reverter passes from the testator and beyond his control, to his heirs. Where a condition imposed for the benefit of adjoining property is released by the grantor, a grantee who has conveyed property with the same condition, and who has no interest in any of the property for the benefit of which the condition was imposed, may not enforce it, since the condition contained in the deed of such grantee was not potent of itself to affect the sort of fee conveyed, but had the effect to continue to impose, for the benefit of adjacent property owned by the original grantor, the prevention of the prescribed use of the property, and becomes a nudum pactum upon the subsequent release of all contiguous property from its burden. McArdle v. Hurley (N. Y.) supra. It may be also noted in this connection that, wherever the point has directly arisen, it has been held that the effect of a subsequent conveyance by the grantor of the property, sub New York. Underhill v. Saratoga & W. R. Co. (1855) 25 Barb. 455; Tinkham v. Erie R. Co. (1866) 53 Barb. 393; Berenbroick v. St. Luke's Hospital (1897) 23 App. Div. 339, 48 N. Y. Supp. 363, appeal dismissed in (1898) 155 N. Y. 655, 49 N. E. 1093. Ohio. Branch v. Wesleyan Cemetery (1893) 29 Ohio L. J. 398. Oregon.-Wagner v. Wallowa County (1915) 76 Or. 453, L.R.A.1916F, 303, 148 Pac. 1140. Tennessee.-Board of Education v. Baker (1911) 124 Tenn. 39, 134 S. W. 863. Texas. Stevens v. Galveston, H. & S. A. R. Co. (1914) Tex. Civ. App. It has, however, been held that the rule that a possibility of reverter is extinguished by an attempt to convey it does not extend to an assignment by one heir at law to another. Southwick v. New York Christian Missionary Soc. (1912) 151 App. Div. 116, 135 N. Y. Supp. 392, affirmed without opinion in (1914) 211 N. Y. 515, 105 S. E. 204, which had reargument denied in (1914) 212 N. Y. 564, 106 N. E. 1043. The doctrine that a possibility of reverter upon breach of condition subsequent is destroyed by an attempted conveyance of the property by the original grantor is examined and adversely criticized, in an annotation in L.R.A.1916F, 311. E. S. 0. (117 Kan. 240, 230 Pac. 1030.) CHARLES E. MILLER, Appt., V. COLONIAL UNDERWRITERS INSURANCE COMPANY of Hartford, Connecticut, et al. Kansas Supreme Court · - December 6, 1924. (117 Kan. 240, 230 Pac. 1030.) Sale, § 7-insurance - omission of statutory requirements title. 1. The owner of an automobile, living in Missouri, undertook to sell it to a resident of Kansas, receiving the agreed price and delivering the car to the buyer, who brought it to Kansas. The Missouri statute requires an indorsement and transfer of the registration certificate, and other steps, where an automobile is sold, and provides that without them a sale shall be fraudulent and void. None of these requirements were complied with. Just after the expiration of the five days allowed by the statute for a record of the sale with the secretary of state, the seller asserted that the car had been stolen, and later collected its value from an insurance company. The car having been seized as a stolen one, the purchaser brought replevin for it, making the insurance company, which held an assignment of the rights of the insured, one of the defendants. It is held that the insurance company could invoke the protection of the statute referred to, inasmuch as the deceit practised upon it was facilitated by the plaintiff's failure to obey the law. [See note on this question beginning on page 1123.] Conflict of laws, § 8 foreign regula tion of automobile sale. 2. It is not a valid objection to the insurance company's invoking of the statute referred to in the foregoing Headnotes by MASON, J. paragraph that it contains penal provisions, or that the plaintiff is a resiIdent of Kansas. [See 5 R. C. L. 911; 1 R. C. L. Supp. 1549; 5 R. C. L. 1033; 1 R. C. L. Supp. 1577; 5 R. C. L. Supp. 310.] APPEAL by plaintiff from an order of the District Court for Wyandotte County (Fischer, J.) setting aside a verdict in his favor and granting a new trial in an action brought to recover possession of a Ford automobile. Affirmed. The facts are stated in the opinion of the court. lees. Mason, J., delivered the opinion of the court: Charles E. Miller brought replevin against the Colonial Underwriters Insurance Company and others for the possession of a Ford automobile. A verdict for the plaintiff was set aside and a new trial was granted on motion of the insurance company, on the sole ground that error had been committed in refusing to allow it to introduce in evidence a Missouri statute, requiring certain steps to be taken to effect a valid sale of a car. The evidence tended to show these facts: J. Cohen, of Kansas City, Missouri, owned a Ford coupé, which on August 29, 1921, he sold to Miller, a resident of Kansas City, Kansas, for $600. The Missouri statute referred to was not complied with. Thereafter Cohen made a claim to the insurance company, which had insured him against theft, that the car had been stolen from him on September 5, 1921. The claim (for $563) was paid on November 5, 1921, Cohen giving the company an assignment of his right, title, and interest in all that remained of the automobile. In May, 1922, the car was taken possession of as stolen property, and Miller brought this action, only the insurance company making a defense. The Missouri statute provides: "In order to make valid or legal a sale or transfer of any motor vehicle registered in accordance with the provisions of this chapter, the vendor shall, in the presence of an officer qualified to take acknowledgments to deeds, indorse his name on back of said certificate of registration described in § 7555, and the vendee shall also, in the presence of such officer and underneath the name of the vendor, write his own name, and to both of said names the said officer shall sign his name as a witness and receive the sum of twenty-five cents therefor; and thereupon the vendor shall deliver to the vendee or transfer the said certificate of registration and which shall be the evidence of the vendee or transferee of his ownership of said motor vehicle, and it shall be the duty of such vendee or transferee, upon request of any peace officer, to exhibit to such officer the said certificate of registration. Upon such sale of a motor vehicle, the vendor shall give notice thereof with the name and address of the vendee to the secretary of state, and the vendee shall, within five days after such sale, give notice to the secretary of state of such sale, also the business address of the previous owner, if known, the number under which the motor vehicle is registered and the name, county and business address of the vendee, and upon the payment by the vendee of a fee of fifty cents the secretary of state shall note upon the registration or index such change in ownership. Any sale or transfer of such motor vehicle without complying with the provisions of this section shall be fraudulent and void, and the vendor and vendee shall each be subject to a penalty not exceeding fifty dol lars." Missouri Rev. Stat. 1919, § 7561. 1. According to the evidence, Cohen gave the plaintiff a bill of sale of the car, acknowledging payment of the price, but the certificate of registration was not indorsed or delivered, and no notice of the transfer was given to the secretary of state. It is doubtless true, as the plaintiff suggests, that Cohen himself, after taking his money for the car, could not assert a valid claim for its return, because of the noncompliance with the statute. The plaintiff further contends that the insurance company is in no better situation than Cohen, because it derived from him whatever right it has to the car. In support of this contention he cites authorities to the effect that neither assignment nor subrogation can give an insurance company a cause of action against a wrongdoer whose negligence has subjected it to a liability, unless such a right existed in favor of the insured. Cooley, Briefs on Ins. p. 3894. That rule applies where a loss to an insurance company is caused by the negligence of a third party in setting fire to insured property, but it does not fit the situation here presented. The failure to conform to the statute prevented the plaintiff from obtaining the legal title to the car through his deal with Cohen. Assuming that, as against Cohen, the plaintiff could assert an equitable title to the car, the question whether such a title could be asserted against the insurance company depends upon the relative equities of the claimants. The plaintiff has not merely omitted some formal requirement of the statute. If he had obtained the registration certificate when he got the car, Cohen would have lacked the means of convincing the insurance company that he still owned it. If he had caused a record of the transfer to be made with the secretary of (117 Kan. 240, 230 Pac. 1030.) state inside of five days, the insurance company would have had opportunity to protect itself against Cohen's fraud. One purpose of the statute is obviously to make it difficult for a thief to dispose of a stolen car, but it has other beneficial effects, one of them being to prevent the tricking of a would-be purchaser into paying for a car, after his supposed vendor has parted with the title. If, as the evidence tends to show, the insurance company was tricked out of its money by Cohen through a device which was made available to him because of the failure of the plaintiff to take the steps required by the statute in order that his purchase should be valid, the superior equities are clearly with the insurance company; it is within the protection of the statute, and the provision that a sale of a car made without an indorsement and delivery of the registration certificate, and without a record of the change of ownership with the secretary of state, shall be fraudulent, operates in its favor against the plaintiff. Sale-insur- 2. A further objection to the admission of the Missouri statute in evidence is that it is penal, and therefore has no extraterritorial force. The $50 penalty, of course, could not be enforced in this state. Conflict of laws But the provision that the valid sale bile sale. The order granting a new trial is affirmed. NOTE. Insurance against theft of automobile is the subject of the annotation following OHIO FARMERS' INS. Co. v. TODINO, post, 1123, and the earlier annotations there referred to. FREDERICK R. VAN VECHTEN, Respt., V. AMERICAN EAGLE FIRE INSURANCE COMPANY, Appt. New York Court of Appeals — January 21, 1925. (239 N. Y. 303, 146 N. E. 432.) Insurance, § 862 against automobile theft use of car by garage keeper. A policy insuring the owner of an automobile against theft does not cover the wrongful use of the car by the keeper of a garage where it was left for repair, although such use is by statute declared to be larceny. [See note on this question beginning on page 1123.] APPEAL by defendant from a judgment of the Appellate Division of the Supreme Court, Fourth Department, affirming a judgment of a Trial Term for Herkimer County (Callaghan, J.) in favor of plaintiff, and from an order denying a motion for new trial in an action brought to recover on a policy insuring against automobile theft. Reversed. The facts are stated in the opinion Mr. Edward M. Brown for appellant. Messrs. Bronner & Ward, for respondent: The jury was warranted in finding from the evidence submitted that the plaintiff's automobile had been stolen, within the meaning of the policy of insurance. Callahan v. London & L. F. Ins. Co. 98 Misc. 589, 163 N. Y. Supp. 322, affirmed in 179 App. Div. 890, 165 N. Y. Supp. 1079; Litts v. Risley Lumber Co. 224 N. Y. 321, 19 A.L.R. 1147, 120 N. E. 730; Huddy, Auto. 6th ed. §§ 840, 842; Chepakoff v. National Ben Franklin F. Ins. Co. 97 Misc. 330, 161 N. Y. Supp. 283. The words used in defendant's policy, "theft, robbery, and pilferage," include the form of larceny created and defined by § 1293-a of the penal law. Huddy, Auto. 6th ed. § 769; Schumacher v. Great Eastern Casualty & Indemnity Co. 197 N. Y. 58, 27 L.R.A. (N.S.) 480, 90 N. E. 353; Thompson v. Phenix Ins. Co. 136 U. S. 287, 34 L. ed. 408, 10 Sup. Ct. Rep. 1019; Callahan v. London & L. F. Ins. Co. supra; Neal, C. & N. Co. v. Liverpool & L. & G. Ins. Co. 178 App. Div. 730, 165 N. Y. Supp. 204; Chepakoff v. National Ben Franklin F. Ins. Co. supra; People v. Fish, 125 N. Y. 136, 26 N. E. 319; Haas v. Fidelity & D. Co. 97 Misc. 4, 160 N. Y. Supp. 1101. Cardozo, J., delivered the opinion of the court: Defendant's policy of insurance covering plaintiff's automobile insures against stated perils, among them, "theft, robbery, or pilferage," with exceptions not now material. Plaintiff left his automobile at a garage and repair shop with instructions to the proprietor to make specified repairs. The proprietor took the car on a trip for his own purposes, and on the homeward journey ran it against a pole. Plaintiff, returning to the garage and receiving back his damaged car, makes claim of the court. against the insurance company that it reimburse him for his loss. The question is whether there was "theft" within the meaning of the policy. By Penal Law (Consol. Laws, chap. 40) § 1293-a (as it stood when this loss was suffered), "any chauffeur or other person who without the consent of the owner shall take, use, operate or remove, or cause to be taken, used, operated or removed from a garage, stable, or other building or place, tomobile or motor vehicle, and operate or drive or cause the same to be operated or driven for his own profit, use or purpose, steals the same and is guilty of larceny and shall be punishable accordingly." Laws 1910, chap. 621. an au Apart from this statute, the misuse of plaintiff's car by the proprietor of the garage would not constitute a larceny, since there was lacking the felonious intent to appropriate another's property permanently and wholly. Parr v. Loder, 97 App. Div. 218, 220, 89 N. Y. Supp. 823; Ledvinka v. Home Ins. Co. 139 Md. 434, 19 A.L.R. 167, 115 Atl. 596; Michigan Commercial Ins. Co. v. Wills, 57 Ind. App. 256, 106 N. E. 725; Phoenix Assur. Co. v. Eppstein, 73 Fla. 991, L.R.A.1917F. 540, 75 So. 537; Valley Mercantile Co. v. St. Paul F. & M. Ins. Co. 49 Mont. 430, L.R.A.1915B, 327, 143 Pac. 559, Ann. Cas. 1916A, 1126; State v. South, 28 N. J. L. 28, 75 Am. Dec. 250; Reg. v. Trebilcock, 7 Cox, C. C. 408; Pollock & W. Possession, p. 225. Indeed, the very purpose of the statute was to bring within the definition acts outside of it be- Insurance- have held keeper. the innovation, what is now larceny |