O. B. B., etc., 94 N. Y. 580; Ballou v. Gile, 50 Wis. 614, 7 N. W. 561; Gentry v. Supreme Lodge, 20 Cent. Law J. 393; Masonic Mut. Ben. Soc. v. Burkhart, 10 N. E. Rep. 79; Swift v. Railway Passsenger & F. C. Ben. Ass'n, 96 Ill. 309. However well founded this distinction may be, it is clear that the beneficiary can only be changed, and the benefit transferred to another, in the manner prescribed by the rules and regulations of the society, and in accordance with the terms of the contract. The contract in this case specifically provided that the benefit should be paid to the wife of the member, or to her legal representatives. The addition of the words "legal representatives" clearly imports that, in case of her death, the benefit should be paid to her heirs or next of kin who fall within the classes mentioned in the charter to whom aid may be given. Thus the contract fixed and limited the persons who might receive the benefit. If we assume, as the authorities appear to hold, that a member of a co-operative society retains the power to change the beneficiary, still he cannot exercise his power except with the consent of the society, and in conformity with the rules and regulations of the society. Aid Soc. v. Lupold, 101 Pa. St. 111; Vollman's Appeal, 92 Pa. St. 50; Eastman v. Relief Ass'n, 20 Cent. Law J. 266; Hellenberg v. I. O. B. B., etc., 94 N. Y. 580; Presbyterian Fund v. Allen, 106 Ind. 593, 7 N. E. Rep. 317; Insurance Co. v. Miller, 13 Bush, 489; Gentry v. Supreme Lodge, 20 Cent. Law J. 393. No provision was made in the certificate of membership for a change in the beneficiary, and the record does not show what rules, if any, the society had made respecting such change. It is admitted that no new designation was made by the assured prior to the death of his wife, nor was any change afterwards made except as attempted by the will. Section 76, c. 93, Laws 1871, provides that "in case any life insurance company organized under the laws of this state shall have issued, or may hereafter issue, any policy of insurance upon the life of any person or persons for another's benefit, and such beneficiary dies during the life-time of the person or persons whose life or lives are assured by said insurance policy or policies, then it shall be lawful for such company to receive from the person or persons whose lives are assured an affidavit setting forth the facts in the case; and, if it shall appear from such affidavit that the affiants have theretofore paid the annual premium on such policy or policies, and intended thereby to insure for the benefit of the person or persons named in such policy or policies as beneficiary, that such person or persons are dead, and that said policy or policies have not been assigned or transferred to any person or persons, and nominating or appointing some other person or persons as beneficiary in place of the said deceased in said policy or policies named, it shall then be the duty of said insurance company to take up and cancel said policies, at the request of said assured, and issue in like terms another policy or policies upon the life or lives of said insured for the benefit of the beneficiary in said affidavit nominated." This statute applies to the defendant society. It was enacted prior to the making of the contract in question, and the parties must be held to have contracted with reference to it. It prescribes the manner by which the member may designate a beneficiary where the one first appointed has deceased; and it appears to be the only mode prescribed. We think the maxim, expressio unius est exclusio alterius, applies; and, as the prescribed mode has not been followed, no change was actually made, and therefore the benefit must be paid according to the terms of the contract. The assured has no interest in the benefit resulting from his membership. In no event was it payable to him, nor could it become a part of his estate; and having no interest in the fund, what was there for him to bequeath? We think the will was ineffectual to change the beneficiary, or divert the fund from the persons named in the certificate, to-wit, the representatives of Jennett Olmstead. It follows that the judgment of the district court must be reversed, and the cause remanded, with instruction to enter judgment in favor of the plaintiffs in error. (All the justices concurring.) (37 Kan. 32) FOSTER V. MARKLAND and others. 1. WRIT-SERVICE. (Supreme Court of Kansas. July 9, 1887.) A summons in an action before a justice of the peace, issued and served on the thirty-first day of October, to appear at 2:30 P. M. of the third day of November, is served three days before the time of appearance. 2. SAME. To contest such a service, the proper motion is to set aside the service, not to dismiss the action. (Syllabus by Simpson, C.) Error from district court, Saline county. J. G. Mohler, for defendants in error. SIMPSON, C. This action was commenced before a justice of the peace in the city of Salina, Saline county. Bill of particulars filed, and summons issued on the thirty-first day of October, 1884, returnable on the third day of November, at 2 o'clock P. M. The summons was served on the thirty-first day of October, the day it was issued. The defendant below, plaintiff in error here, made a special appearance on that day before the justice, and filed a motion to dismiss the action, for the reason that the court had no jurisdiction of the person or the subject-matter, and for the additional reason "that the summons issued in this case was not served on the defendant three days before the time of his appearance, as named in the summons in this case." This motion was overruled and excepted to, the evidence heard, and a judgment rendered for the plaintiff for $113.50 and costs. A bill of exceptions was presented and signed, and the case taken to the district court on error, and affirmed. The case is here on petition in error from the district court; the plaintiff in error claiming that it ought to be reversed for error apparent on the face of the record. The question discussed in the briefs of counsel on both sides is as to whether there was sufficient time given by the summons. The plaintiff in error is bound by the terms of his motion, and that was to dismiss the case; and, even if there was not sufficient time given by the summons for the appearance and answer, it would not be a cause for dismissal of the action. In such a case the summons ought to be set aside, and a new one issued, giving the defendant the benefit of the statutory requirement in this respect; but it constitutes no reason for the dismissal of the action. We think the service was good, and that sufficient time was given for the appearance of the defendant. Excluding the day of service, there were three days before the time of appearance. We see no error, and therefore recommend that the ruling of the district court of Saline county be affirmed. BY THE COURT. It is so ordered; all the justices concurring. (37 Kan. 87) MCGANNEN v. STRAIGHTLEDGE. PUBLIC LANDS-INDIAN TITLE. So much of section 2, c. 79, Laws 1874, of the "Act to protect bona fide purchasers of Indian lands," which provides that a person purchasing land from an Indian, allotted under a treaty, cannot be evicted by any other person who has obtained the legal title to the same, until such subsequent purchaser has repaid the prior purchase money, with interest, is inoperative until the Indian title is extinguished, as violative of a paramount federal law. (Syllabus by the Court.) Error from district court, Miami county. Baryman & Sheldon, for plaintiff in error. Thomas M. Carroll, for defendant in error. HORTON, C. J. This action was before this court at its July session, in 1884, upon the question whether the plaintiff's title was barred by any statute of limitations. 32 Kan. 524, 4 Pac. Rep. 1042. It was then held that as the land continued to be Indian land, and the title an Indian title, up to the time it was conveyed by Harriett Sky, or No-me-co-se-quah, sole heir of Pakan-giah, and her husband, to the plaintiff, no statute of limitation could operate. Upon the new trial, judgment was rendered for the plaintiff. The defendant then made application to the court for the payment of his purchase money, and the value of his improvements upon the land, before the plaintiff should be let into possession of the same, under the provisions of section 2, c. 79, Laws 1874, and section 601, Civil Code. The plaintiff admitted that the defendant was entitled to the value of his lasting and valuable improvements, less rents and profits, but denied that he was entitled to reimbursement for his purchase money under "the act to protect bona fide purchasers of Indian, lands," upon the ground that so much of said act as provides that a person purchasing land from an Indian, allotted under a treaty, cannot be evicted by any other person who has subsequently acquired title to the same, until such subsequent purchaser has repaid the purchase money, is inoperative and void, as in violation of the act admitting the state into the Union, and also of the treaty with the Kaskaskia, Peoria, Piankeshaw, and Wea tribes of Indians, of May 30, 1854. The district court decided that the plaintiff should pay to the defendant his purchase money, with interest, in addition to the value of his lasting and valuable improvements, less rents and profits, before the defendant should be required to deliver up the possession of the premises. To this ruling the plaintiff excepted. The question for our determination is whether the defendant can recover his purchase money, with interest, as provided in section 2, c. 79, Laws 1874, before he can be required to surrender possession of the premises owned by the plaintiff. The act of admission of January 29, 1861, among other things, provides "that nothing contained in the said constitution, [of Kansas,] respecting the boundary of said state, shall be construed to impair the rights of person or property now pertaining to the Indians of said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which, by treaty with such Indian tribe, is not, without the consent of such tribe, to be included within the territorial limits or jurisdiction of any state or territory; but all such territory shall be excepted out of the boundaries, and constitute no part of the state of Kansas, until said tribe shall signify their assent to the president of the United States to be included within said state, or to affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to make if this act had never passed.” Article 3 of said treaty reads: "* * * All selections in this article provided for shall be made in conformity with the legal subdivisions of the United States lands, and shall be reported immediately in writing, with apt descriptions of the same to the agent for the tribe. Patents for the lands selected by or for individuals or families may be issued, subject to such restrictions re specting leases and alienations as the president or congress of the United States may prescribe." 10 St. U. S. 1082, 1083. The land being Indian, and the title thereto being Indian title up to the date of the conveyance to the plaintiff, in our opinion, under the foregoing provisions, the legislature has no right to impose the lien, charge, or incumbrance upon the land now asserted, and therefore the act cannot have the effect to require the plaintiff to pay to the defendant any purchase money. To compel the plaintiff to pay such purchase money would violate a paramount federal law. So much of said chapter 79, Laws 1874, as requires the second purchaser, under such circumstances as appear in this case, to pay any purchase money to the first purchaser, is wholly void. Vickroy v. Pratt, 7 Kan. 238; Lemert v. Barnes, 18 Kan. 9; Maynes v. Veale, 20 Kan. 374; Brown v. Steele, 23 Kan. 672; Wilcox v. Jackson, 13 Pet. 517. If the legislature has the power to impose a lien for two or three hundred dollars upon this land, without benefiting in any manner the purchaser, and without the consent of the United States, or of the Indian to whom it was allotted, as the district court seems to have decided, then the legislature would have the power to prescribe under what rules and regulations Indian lands might be sold or conveyed, and would also have the absolute power to deprive the United States and the Indian to whom the land was allotted of all power of alienation. This, of course, the legislature could not do. Counsel for the defendant refers to Krause v. Means, 12 Kan. 335, as decisive that the successful litigant must pay the defeated claimant his purchase money. That decision, which was only concurred in by two members of this court, gave the defeated party the benefit of the occupying claimant's act. It was said: "He is within the spirit of the law which aims to secure compensation to him who, in a mistaken conviction of ownership, meliorates the land he occupies with lasting and valuable improvements." We have no inclination to criticise or question that decision, so far as it is based upon the equitable doctrine that a person receiving the benefits of improvements shall make compensation therefor. Further than that we are unwilling to go. The order of the district court granting the application of the defendant for his purchase money will be reversed. The cause will be remanded for further proceedings in accordance with views herein expressed. (All the justices concurring.) (37 Kan. 73) KANSAS FARMERS' MUT. FIRE INS. Co. v. AMICK. (Supreme Court of Kansas. July 9, 1887.) PLEADING AMENDMENT-Delay. Where an action is brought against a fire insurance company to recover damages alleged to have been sustained by fire, and the defendant is in default for want of an answer for several months, and afterwards, on leave of the court, files an answer, and afterwards the trial of the case is had, and had nearly two years after the fire occurred, and after the plaintiff has introduced the principal portion of her testimony, but before she has rested, the defendant asks leave of the court to amend its answer by setting up new matter, and what it claims to be a new, independent, and complete defense to the plaintiff's action, but makes no showing with reference to the delay, or as to whether the defense is true, and the court refuses to permit the amendment to be made, held not error. (Syllabus by the Court.) Error from district court, Franklin county. Stambaugh, Hurd & Dewey and J. R. Burton, for plaintiff in error. Alonzo Dishman, for defendant in error. VALENTINE, J. This was an action brought in the district court of Franklin county by Lydia A. Amick against the Kansas Farmers' Mutual Fire Insurance Company, on a fire insurance policy, to recover damages alleged to have been sustained by fire. The case was tried before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendant for $1,326 and costs; and the defendant, as plaintiff in error, brings the case to this court for review. The fire occurred on December 27, 1883. The action was commenced on December 23, 1884. The defendant demurred to the plaintiff's petition on January 31, 1885. The demurrer was overruled on June 6, 1885, and 20 days were given the defendant within which to file an answer. The defendant did not file any answer within that time, but on September 14, 1885, without leave of the court, and for the first time, filed an answer. This answer was stricken from the files on September 28, 1885, and on the same day the defendant, with leave of the court, filed another answer, setting forth substantially all that was set forth in the first answer, and more too. On October 6, 1885, the trial was commenced. On October 7, 1885, after the plaintiff had introduced the principal portion of her testimony, but before she had rested, the defendant asked leave of the court to amend its answer by setting up new matter, and what it claimed to be a new, independent, and complete defense to the plaintiff's action, but the court refused; and this refusal is the first ruling of the court below of which the defendant (plaintiff in error) now complains. We do not think that the court below committed any error in making this ruling. Why the defendant did not set up this defense sooner is not shown; nor is it shown whether the defendant had any reasonable grounds to believe that the defense was true. No affidavit concerning the matter was filed, nor was any other evidence in support of the defendant's application submitted to the court. Of course, under section 139 of the Civil Code, the court may in any case, in furtherance of justice, and on such terms as may be proper, permit a party to amend his pleadings by inserting other allegations material to the case, when such amendment does not change substantially the claim or defense; but the amendment, in any case and at any time, can be made only "in furtherance of justice," and it must be affirmatively shown that the amendment is in furtherance of justice. No such showing was made in the present case. The proposed amendment was that a city ordinance prohibited all persons from putting a stove-pipe through the roof of a building, and that the plaintiff in this case violated such ordinance, and that the fire was caused by reason of such violation. Now, if this were true, the defendant could have known it long before this action was commenced, and could have set it up in an answer as soon as the action was commenced. It is probable that the defendant knew, when the insurance policy was issued, just how the stove-pipe was arranged in this building; for the stove-pipe and the building were in the same condition before the insurance was effected as they were at the time when the fire occurred. And the defendant did unquestionably know, more than two weeks before the trial, just how the stove-pipe was arranged in the building. In all probability the defendant could not have proved that the fire originated by reason of the stove-pipe's running through the roof. But, whatever it might have proved, still it is clear that the defendant might have known, by the exercise of reasonable diligence, at least 20 months before the trial, just what it knew with regard to this subject on the day of the trial. The trial court, in the exercise of its discretion, might, perhaps, upon proper terms, have permitted the amendment to be made; but still, under the circumstances of the case, we do not think that it committed any error in refusing the same. The defendant (plaintiff in error) also claims that the judgment is excessive. It is useless to discuss this question. There was sufficient evidence to warrant the verdict of the jury; and their verdict, as now presented to us, must be held to be conclusive. The judgment of the court below will be affirmed. (All the justices concurring.) |