gage on the same land for $1,200, the balance due her. This new mortgage for $1,200 and plaintiff's mortgage for $2,500 were both dated the same day, and were executed and recorded at the same time, the former mortgage receiving the register No. 66,072, and the latter register No. 66,073. Subsequently plaintiff, acting through her attorney, Warren H. Mead, foreclosed both of her mortgages under the powers of sale contained therein. Before

the year to redeem expired, Collins conveyed the land to defendant Moran, who redeemed from both foreclosures by executing to plaintiff a new mortgage on the land for $3,400. At the same time Frances A. Mead executed a release of her mortgage for $1,200, and received from Moran a new mortgage on the land for the same amount. Those last two mortgages were also dated, executed, and recorded at the same time, plaintiff's mortgage receiving the prior register number. Warren H. Mead acted also as the agent of his wife. She stipulated on the trial that he "was her agent, authorized to conduct and carry forward the transactions on her behalf in the manner that he did."

Plaintiff knew that Frances A. Mead held the mortgage for $1,200; but the evidence tends strongly to prove that Warren H. Mead had always represented to plaintiff that her mortgage for $2,500 should be and was prior to his wife's mortgage. But we cannot hold that the evidence is conclusively in plaintiff's favor on this point. The evidence also tends strongly to prove that he committed a gross error of judgment or a gross breach of duty in loaning the $2,500 for plaintiff on this land without having his wife's mortgage wholly satisfied or made subsequent to plaintiff's mortgage. But his wife is not responsible for his failure to perform his duty to plaintiff as her agent in any of these respects, and his wife is not estopped by reason of such failure. The order appealed from is therefore affirmed.

John J. Davis. One of these judgments was for $190, and was rendered March 31, 1894. The other was for $240, of the same date. It was alleged in the petition that the foreclosure decrees, upon which the sales left due the sums alleged, were entered at the September term, 1892. There is in the record no information as to the nature or date of the original indebtedness secured by the mortgages upon which foreclosures were had. There was, therefore, no evidence which would serve to estop Mrs. Davis' assertion of whatever rights were hers, because of having permitted her husband to deal with her property, and obtain credit upon the faith of being its real owner. The property, through an intermediary trustee, was conveyed by the husband of Mrs. Davis to her between the date of the entry of the decrees and the rendition of the deficiency judgments. She based no claim of protection on any other fact than that the property had been acquired by her husband by the use of her means derived independently of him or his property. The title was taken in his name to enable him to handle it more readily in the frequent exchanges contemplated, but, as between the husband and wife, she was always recognized as entitled to the ownership. The property she sold to Mr. Allen, who in some matters had acted as her attorney with reference to the management of some cases in court. The trustee through whom she derived the title from her husband was also Mr. and Mrs. Davis' counsel in legal matters. There was no attempt to disguise the fact that the instrumentalities she employed were such as she would probably have used if she had intended to obtain title to the property of her husband to the prejudice of his creditors. Notwithstanding these unfavorable conditions, the evidence was direct and convincing that her equitable rights were such that the legal title she had acquired and conveyed were entitled to protection, and the district court properly so held. Its judgment is accordingly affirmed.

FISHER et al. v. DONOVAN et al. (Supreme Court of Nebraska. Jan. 5, 1899.) TRUST FUND-CREATION-BENEFIT SOCIETY-CERTIFICATE CHANGE OF BENEFICIARY - PROCEEDS OF CERTIFICATE RIGHTS OF CREDITORS-FOREIGN STATUTES.

1. To create a trust fund out of which a trustee may make disbursements, the trustor must have some present or future right to, or interest in, the fund directed to be set apart.

2. A member of a fraternal beneficiary society has no such interest or property in the proceeds of a certificate therein that he can impress such proceeds with a trust in favor of his creditors.

3. A certificate in a fraternal beneficiary society is a mere expectancy, and the beneficiary has no vested right therein.

4. A member holding a certificate in a fraternal beneficiary society may, at his option, change the beneficiary therein, so long as he complies with the laws of such society, and

keeps within its limitations, and those of the statute under which it is organized.

5. Upon the death of a member holding a certificate in a fraternal beneficiary society, the money arising from such certificate vests absolutely in the beneficiary properly designated by the member.

6. Creditors have no right to, or interest in, a certificate in a fraternal beneficiary society, either before or after the death of the member, and they cannot participate in the fund derived therefrom.

7. The contrary not appearing, the statute of a sister state will be presumed to be similar to

our own.

8. The rules and regulations of fraternal beneficiary societies for the creation and payment of their funds to the properly designated beneficiaries should receive such liberal construction as to carry out the benevolent purposes sought to be accomplished.

9. The promise of one party to pay the debt of another cannot be enforced unless such promise be in writing, signed by the party to be charged.

(Syllabus by the Court.)

Appeal from district court, Fillmore county; Hastings, Judge.

Action by Levi L. Fisher, assignee of John Fisher, and others, against Lillian Donovan and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

John D. Carson, for appellants. Charles H. Sloan and F. B. Donisthorpe, for appellees.

SULLIVAN, J. This action was brought to restrain the defendant Lillian Donovan, widow of Jere Donovan, deceased, from converting to her own use the proceeds of two certificates of life insurance issued to her late husband by fraternal beneficiary societies, and to impress such proceeds with a trust in favor of the plaintiffs as creditors of the insured. From a decree in favor of defendants, the plaintiffs have appealed.

Jere Donovan was postmaster at Geneva, in Fillmore county. He was indebted to the plaintiffs and others for borrowed money. He represented to his creditors that in case of his death they would be paid out of the moneys to be derived from insurance upon his life. The insurance carried by him was as follows: In the Knights of Pythias, $1,000, payable to his two infant children; in the Ancient Order of United Workmen, $2,000, of which sum $1,000 was payable to his widow and $500 to each of his children; in the Modern Woodmen of America, $2,000, of which half was payable to his widow and half to his children. September 4, 1894, Mr. Donovan was taken sick. His sickness continued until October 25th of that year, when he died. At times during his illness he was troubled and anxious about his debts, and expressed a desire that, in case he did not recover, they be paid out of his life insurance. On one occasion he asked Mr. Carson, an attorney, to call, and to him he gave a list of his liabilities. On another occasion, while his physician was present, he called his wife into the sick room, and said to her: "I want you to pay my debts. Will you do it?" to

which she responded, "Yes." He also said, "Doctor, you hear this, don't you?" to which the doctor replied, "Yes." Nothing else was said or done. It is asserted by appellants that these facts and circumstances constituted Lillian Donovan a trustee of the fund afterwards received by her in satisfaction of the benefit certificates, and that she should be now compelled to execute the trust. Mrs. Donovan was appointed administratrix of her deceased husband's estate. After setting off to her the exemptions provided by law for the widow, there remained nothing for distribution among creditors. However, she voluntarily paid several claims against the estate, and the appellants, asserting that she did this in partial execution of the trust, earnestly insist that she be now required to carry out completely the wishes expressed by her husband in his last illness. To create a trust fund out of which a trustee may make disbursements, the trustor must have some present or future right to, or interest in, the property directed to be set apart; in other words, to constitute a valid trust there must be (1) a competent trustor, (2) a transfer to a competent person, (3) a fund or object capable of being transferred, and (4) a cestui que trust capable of taking or participating in the fund. Commissioners v. Walker, 6 How. (Miss.) 143. Had Jere Donovan such a right or interest in the certificates in question, and have his creditors, the appellants here, the right to participate in the fund? We think not. The purposes and objects of these beneficiary organizations are vastly different from those of ordinary life insurance companies. The so-called "old line" life insurance companies immediately on the issuance of a policy confer on the beneficiary a valuable right, which cannot be devested without the consent of such beneficiary. Such policies may be pledged or assigned by the beneficiary as security for debts of the insured. policies often by law have a marketable or cash surrender value, making them a form of property. But not so with certificates in fraternal beneficiary societies. They are mere expectancies. The beneficiary has no vested rights in them, and the insured may at any time, at his option, change the beneficiary, provided only he keeps within the limitations established by the rules of the society, and complies with the laws respecting a change of beneficiary. Neither have these certificates a cash surrender value. The supreme court of Pennsylvania, in construing a certificate similar to those in question here, say: "The testator had no property in the fund. The fund in fact was never his property. He had power of appointment only, and such power did not create any property in him. The purpose of these certificates excludes the claim that there was any property in him." Association v. Jones, 154 Pa. St. 99, 26 Atl. 253. The insured member of such societies has шmself no interest in the fund. He possesses only

*

These

a mere power of appointment. Rollins v. McHatton, 16 Colo. 203, 27 Pac. 254; Hellenberg v. District No. 1, 94 N. Y. 580. Jere Donovan had no property in the certificates. He had no right or interest therein upon which he could impress a trust. Upon his death the money arising from the certificates became absolutely the property of the beneficiaries, to do with as they saw fit. The widow could use the money to pay such of her husband's debts as she wished to pay, or she might retain it all for her individual use. The societies paying the money were organized to "issue certificates of indemnity calling for the payment of a certain sum, known and defined, in case of death, *

to the widow, orphan or orphans, or other persons dependent upon such members." Comp. St. 1895, c. 16, § 198. The constitution of the Ancient Order of United Workmen provides that "each member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall, in every instance, be one or more members of his family, or some one related to him by blood, or who shall be dependent upon him." Const. A. O. U. W. art. 6, § 4. The by-laws of the Modern Woodmen of America provide that "the objects of this fraternity are to promote true neighborly regard and fraternal love, to bestow substantial benefits upon the family, widow, heirs, blood relations, affianced wife, or person dependent upon the member, and such others as may be permitted by the laws of the state of Illinois." By-Laws M. W. A. div. 1, § B. None of these designations include creditors, so that the insured did not have the right, even, to make a formal change designating his creditors as beneficiaries. The laws of this state governing such societies preclude creditors of a member from participation in the fund so created. The statutes of the states in which these societies were organized not being pleaded, we presume they are similar to our own. The statute or charter of the order designating beneficiaries controls. Britton v. Supreme Council, 46 N. J. Eq. 102, 18 Atl. 675; Association v. Gonser, 43 Ohio St. 1, 1 N. E. 11; Caudell v. Woodward, 96 Ky. 646, 29 S. W. 614. A person not of the class for whose benefit a mutual benefit association is organized cannot be a beneficiary. Wolf v. District Grand Lodge, 102 Mich. 23, 60 N. W. 445; Britton v. Supreme Council, supra; Alexander v. Parker, 144 Ill. 355, 33 N. E. 183; Society v. Willson (Ill. Sup.) 52 N. E. 41. The beneficiaries which may be designated are but few, and creditors of the member are not among them. Even though Jere Donovan had complied with all the provisions and forms required by the societies respecting a change of beneficiary, plaintiffs could not have been named, since creditors are not within the limitations either of the statute or of the by-laws of either society. Either the statutes of the state or the charter or bylaws of mutual benefit societies usually pro

vide that the fund is established for the benefit of the widow, children, orphans, relatives, or dependents of the deceased member; and, where such provision is made, the beneficiary designated must be in one of the classes mentioned. Elsey v. Association, 142 Mass. 224, 7 N. E. 844; Presbyterian Mut. Assur. Fund v. Allen, 106 Ind. 593, 7 N. E. 317; Supreme Council v. Perry, 140 Mass. 580, 5 N. E. 634; Skillings v. Association, 146 Mass. 217, 15 N. E. 566. In Skillings v. Association the court says: "A person whose only relation to the deceased member is that of a creditor is not a person dependent upon him within the meaning of these statutes, and the promise to pay the plaintiff is void. Such a promise is beyond the powers of the association, and contravenes the intention of the statute under which the association was organized. The plaintiff, therefore, cannot maintain an action on this promise, either for his own use or for that of any other person." These fraternal beneficiary societies, in their present form, are comparatively recent creations. They respond to a popular demand for protection to dependents at reasonable cost. They provide what is often called the "poor man's insurance." In most, if not all, the primary object is to provide substantial benefits, in case of the death of the member, to the widow, orphans, or dependents of such member; to provide means for the family when the main support is gone. Their purposes are laudable. They provide means to maintain the widow, and feed, clothe, and educate the orphans, and thereby relieve the state of burdens which otherwise might fall upon it. The provisions for the creation and payment of these sacred funds to the properly designated beneficiaries should receive such liberal construction that the widow, the orphan, or other dependent may receive the intended benefit.

In determining who is entitled to receive the benefits of the provisions of societies of this kind, it is the duty of the court to construe the statute and their rules and regulations liberally, and in such manner as to carry out the beneficent purposes sought to be accomplished. Ballou v. Gile, 50 Wis. 614, 7 N. W. 561; Supreme Council v. Perry, supra. It is true, Mrs. Donovan did assent to her husband's request to pay his creditors, but, since he failed to provide the trust fund out of which payment might be made, the plaintiffs cannot recover from her as trustee. After her husband's death, there being no proper change of beneficiary, half the proceeds of the certificates in question became absolutely the money of Mrs. Donovan, and the promise she made was at most but a promise to pay her husband's debts out of her own property. There is no claim that the promise was in writing, and it is a familiar doctrine that a promise to answer for the debt, default, or misdoings of another is within the statute of frauds, and, to be binding, must be in writing, signed by the

party to be charged therewith. Comp. St. e. 32, § 8. Mrs. Donovan cannot be held in this action, either as trustee or individually, for plaintiffs' demands. The decree of the trial court is therefore affirmed.

TROXELL v. STEVENS et al. (Supreme Court of Nebraska. Jan. 5, 1899.) DEED AFTER-ACQUIRED INTEREST - ACTION ON COVENANT-OCCUPYING CLAIMANTS-EVICTION. 1. By virtue of section 51, c. 73, Comp. St., an after-acquired interest in real estate by a grantor inures to the benefit of the grantee when the deed purports to convey a greater interest or estate than the grantor owns at the time of the conveyance.

2. A grantee in a quitclaim deed takes only the grantor's existing interest, and the afteracquired title of his grantor in the property does not pass to him.

3. An after-acquired title does not inure to the benefit of the grantee, where the deed of conveyance under which he claims has been canceled and annulled by a decree of court.

4. An action cannot be maintained on a covenant of warranty of title, where it appears there has been no actual eviction or surrender of possession of the granted premises by reason of a paramount title.

5. A decree canceling a deed under which a grantee asserted title, the appointment of appraisers, under the act for the relief of occupying claimants (chapter 63, Comp. St.), to assess the value of the lasting improvements of the grantee, and the confirmation of the report of the appraisers by the court, alone do not amount to an eviction, where the owner of the paramount title has neither elected to accept the value of the land, nor to pay the occupant the value of his improvements, and the physical possession of the latter has not been disturbed.

6. Covenants of warranty in a deed for the conveyance of real estate, not broken when made, pass with the title, even though the subsequent conveyances are by quitclaim deeds.

7. Where the appraisement has been made under said act, the unsuccessful occupant cannot be ousted of possession of the premises until the successful owner has elected to pay, and has paid, the appraised value of the improvements, or elected to accept the value of the land, and the occupant has refused to pay the

same.

8. The occupant may not have the land and improvements sold to pay the parties the value of their respective interests,-at least, not until a time has been fixed by the court within which the successful owner may elect whether he will accept the value of the land without the improvements, or to pay the value of the improvements, and he has refused to make such election.

(Syllabus by the Court.)

Appeal from district court, Douglas county; Duffie, Judge.

Action by Benjamin F. Troxell against William J. Stevens and others. Judgment for defendants, and plaintiff appeals. Reversed.

Warren Switzler, for appellant. H. L. Day, J. Q. Burgner, Meikle & Gaines, Silas Cobb, Bartlett, Baldrige & De Bord, W. H. De France, E. W. & Wm. Simeral, Wright & Thomas, and Montgomery & Hall, for appellees.

NORVAL, J. This is a suit by Benjamin F. Troxell to foreclose a mortgage on lot 1 of

Troxell's subdivision of lot 3 of Geise's addition to the city of Omaha, executed by William Stevens, one of the defendants. Several judgment creditors of Stevens were made defendants, who appeared in the cause and set up their judgments. The Somerset Trust Company presented an answer and cross petition, praying the foreclosure of a tax-sale certificate. William J. Stevens filed an answer, pleading a counterclaim for damages for breach of the covenant of warranty in a deed to the mortgaged premises made by plaintiff to Richard S. Maulsby, said Stevens' immediate grantor. Jennie E. Stevens answered, asserting a lien upon the premises by reason of the assignment to her by said William J. Stevens of his rights and interests in a decree rendered in his favor, under the statute, in the case of Englebert against Troxell et al., in the district court of Douglas county, for lasting improvements placed on the lots covered by the Troxell mortgage. Upon the trial the court below found, inter alia, that William J. Stevens had sustained damages by reason of the breach of plaintiff's covenant of warranty in the sum of $1,614.67, from which amount was deducted $1,342.71 due on the mortgage, and a decree was rendered against Troxell in favor of William J. Stevens for $1,281.96. The court also awarded Jennie E. Stevens a lien on the premises for lasting improvements in the sum of $1,613. There are other provisions in the decree, which need not now be stated. Plaintiff has appealed. The sole controversy in this court is between Troxell and William J. and Jennie E. Stevens.

It is disclosed that one Francis Leon Englebert, a minor, was the former owner of the lot described in the mortgage; and while remaining such owner he executed a deed conveying the same and other real estate to one George E. Pritchett, who conveyed the property to Adolph Meyer. The latter sold and conveyed to John I. Reddick, who executed a deed to the premises to Troxell, the plaintiff and appellant herein. On November 10, 1887, by deed of general warranty he conveyed to one Richard S. Maulsby, who, with covenants of warranty, deeded the lot to Peter Ulrich, and the latter subsequently quitclaimed his interest in the property to his said grantor. Afterwards Maulsby executed a conveyance to the premises to William J. Stevens, and the latter subsequently gave the mortgage in suit. On August 17, 1893, William J. Stevens, by deed of quitclaim, conveyed said lot 1 to Jennie E. Stevens. On November 14, 1889, shortly after Francis Leon Englebert had reached his majority, he instituted in the district court of Douglas county a suit against said George E. Pritchett and the other persons named to whom the lot had been conveyed, down to and including William J. Stevens, to cancel and set aside his deed to Pritchett, and the other conveyances, because of his minority at the time his deed was executed. The district

court rendered a decree canceling all the deeds, and ordered an appraisement of the real estate and lasting improvements, in accordance with the statute enacted for the benefit of occupying claimants. The appraisal was made in accordance with the decree, which the district court confirmed. Troxell prosecuted an appeal, and the decree was affirmed by this court. Englebert v. Troxell, 40 Neb. 195, 58 N. W. 852. Shortly after said decision, on May 7, 1894, said Francis Leon Englebert, by his attorney in fact, conveyed the mortgaged premises to one William A. Reddick, who on October 26th of the same year executed a deed for the same to Troxell. Subsequently the present suit was instituted in the court below.

It is argued on behalf of plaintiff that there has been no breach of his covenant of warranty, because he defended the title to the lot in the district court, as well as here on appeal, as he agreed to do by the covenant of his deed, and when defeated in the court of last resort he purchased the Englebert title; thereby preventing an ouster of William J. Stevens and his grantee, Jennie E. Stevens. Section 51, c. 73, of the Compiled Statutes is invoked to support this line of argument, which section declares: "When a deed purports to convey a greater interest than the grantor was at the time possessed of, any after acquired interest of such grantor to the extent of that which the deed purports to convey, shall accrue to the benefit of the grantee: provided, however, that such after acquired interest shall not inure to the benefit of the original grantor, or his heirs or assigns, if the deed conveying said real estate was either a quitclaim or special warranty," etc. This piece of legislation makes an after-acquired interest in real estate by a grantor inure to the benefit of the grantee only where the deed purports to convey a greater interest or estate than the grantor at the time owned. If he merely conveys a present title or interest, then the title which he subsequently obtains to the property does not pass to the grantee. Manifestly the statute has no application where the transfer is by a deed of quitclaim. Pleasants v. Blodgett, 39 Neb. 741, 58 N. W. 423. If the provision quoted has any bearing on the present controversy, it is obvious that it did not have the effect to vest in either William J. Stevens or Jennie E. Stevens the subsequently obtained interest of Englebert in the property, since all the conveyances through which they claimed title did not purport to transfer the fee. The record shows that Jennie E. Stevens asserts title through a quitclaim deed from William J. Stevens, and also that one Peter Ulrich, a grantor in one of the conveyances in his claim of title, on November 8, 1888, made a quitclaim deed to the lot to Maulsby; so that, under the statute, the after-obtained Englebert title did not reach to Jennie E. Stevens, or inure to her benefit. This after-acquired title did not pass either to her or William J. Stevens for anoth

er reason. All the deeds constituting their claim of title, beginning from the one to Pritchett, and all the subsequent mesne conveyances down to and including the deed to William J. Stevens, were canceled and annulled by the decree in the case of Englebert v. Troxell, supra. The several deeds, therefore, were no longer in existence for the purpose of conveying or supporting title, and hence were wholly insufficient to transmit the after-acquired estate to the Stevenses. The deeds subsequent to the decree in the case above mentioned, from Englebert to Reddick, and from Reddick to Troxell, vested the paramount title in the latter, in whom, so far as this record shows, it still remains. The procuring of the Englebert title by this plaintiff was alone insufficient to defeat an action for a breach of his covenant of warranty. plaintiff desires to invest the title to the lot in William J. Stevens, and make good his covenant, he can effectuate such purpose by an appropriate conveyance.

If

It is insisted that the covenant has not been broken, inasmuch as neither William J. Stevens nor Jennie E. Stevens has been evicted by, nor have they surrendered possession of the premises to, the owner of the paramount title. This court is unalterably committed to the doctrine that no recovery can be had on the covenant of warranty, unless there has been an actual eviction, surrender, or attorning by reason of the paramount title. Real v. Hollister, 20 Neb. 112, 29 N. W. 189; Cheney v. Straube, 35 Neb. 521, 53 N. W. 479; Troxell v. Johnson, 52 Neb. 46, 71 N. W. 968; Hampton v. Webster (Neb.) 77 N. W. 50. The wisdom and soundness of this rule may well be doubted, but it has been so often announced and applied by this court as to become a settled rule of property, and should be adhered to by the court until the rule is changed by appropriate legislation. In the case in which we are dealing there is an entire failure of proof of actual eviction or surrender of possession. William J. Stevens or Jennie E. Stevens has been, and now is, in the actual occupancy of the lot. The owner of the paramount title since the decree in Englebert v. Troxell has asked neither of them to vacate the property or attorn to him. They have not pleaded an actual eviction or surrender, unless said decree amounts to that. The averments in the answer upon that subject follow: "That by virtue of the said paramount title of the said Francis Leon Englebert, and contrary to said deed and covenants of the deed as aforesaid, this defendant, after his entry into possession of said premises under his said deed of conveyance as aforesaid, was ousted and dispossessed of said premises, and evicted from the same, by due course of law, by virtue of certain proceedings duly instituted in the district court of Douglas county, state of Nebraska, wherein the said Francis Leon Englebert was plaintiff and Benjamin F. Troxell and others were defendants, wherein it was ad