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Neither the leasing of insured property, act or words or both, intends to devest himnor the possession of the same by lessees self of title, there is no delivery. under contract containing option to buy, is 9 Am. & Eng. Enc. Law, pp. 150–154; a violation of a condition that the policy Home F. Ins. Co. v. Collins, 61 Neb. 199, shall be void if the property be sold or 85 N. W. 54; Allen v. Ayer, 26 Or. 589, transferred, or any change take place in the 39 Pac. 1; Everts v. Agnes, 4 Wis. 356, 65 title or possession.
Am. Dec. 314; Daggett v. Daggett, 143 Mass. Elliott, Ins. $ 281; 3 Joyce, Ins. , 2258; 516, 10 N. E. 313; Curry v. Colburn, 99, 1 May, Ins. 4th ed. § 273a; Rumsey v. Pha-Wis. 319, 67 Am. St. Rep. 860, 74 N. W. niz Ins. Co. 17 Blatchf. 527, 1 Fed. 398; 778. Smith v. Phonix Ins. Co. 91 Cal. 323, 13 L. The presumption of delivery raised by R. A. 475, 25 Am. St. Rep. 191, 27 Pac. 738; such recording may be rebutted. Planters' Mut. Ins. Co. v. Rowland, 66 Md. 9 Am. & Eng. Enc. Law, p. 160; Home: 236, 7 Atl. 257; Grable v. German Ins. Co. F. Ins. Co. v. Collins, 61 Neb. 202, 85 N. W. 32 Neb. 645, 49 N. W. 713.
54; Koppelmann v. Koppelmann, 94 Tex. 40, A condition in a contract of insurance 57 S. W. 570; Walsh v. Vermont Mut. F. which prohibits a sale, transfer, or any Ins. Co. 54 Vt. 351. change in the title or possession of the in- The word "void" as used in insurance consared property without the consent of the tracts does not necessarily imply the permainsurer has no application to a sale or trans- nent avoidance of a policy which has once fer by one partner to another of his interest begun to run, and a change in the title or in the partnership property.
condition of thc insured premises in violaPhenix Ins. Co. v. Holcombe, 57 Neb. 622, tion of the provisions of the policy will not 73 Am. St. Rep. 532, 78 N. W. 300; 1 May, i prevent a recovery where such premises and Ins. 3d ed. § 279; Angell, Ins. $ 200a; 1 the title thereto were restored to their origiWood, Fire Ins. 2d ed. 744, 745, 748; Elliott, nal condition before the loss occurred. Ins. $ 274; 3 Joyce, Ins. § 2295; Parsons, The above rule of construction has been Partn. 4th ed. $ 180; Burnett v. Eufaula applied to a temporary violation of many Home Ins. Co. 46 Ala. 11, 7 Am. Rep. 581; different conditions in insurance policies, Sun Fire Office v. Wich, 6 Colo. App. 103, providing that a breach of such conditions, 39 Pac. 587; Lockwood v. Middlesex Mut. should render the policies void. Assur. Co. 47 Conn. 553; Georgia Home Ins.
Ilinckley v. Germania F. Ins. Co. 140 Mass.. Co. v. Hall, 94 Ga. 630, 21 S. E. 828; Han- | 38, 54 Am. Rep. 444, 1 N. E. 737; New over Ins. Co. v. Lewis, 23 Fla. 193, 1 So. England F. & 1. Ins. Co. v. Schettler, 38 863; Allemania F. Ins. Co. v. Peck, 133 11. Ill. 166; Obermeyer v. Globe Mut. Ins. Co.. 220, 23 Am. St. Rep. 610, 24 N. E. 538; Der. 43 Mo. 573; Schmidt v. Peoria M. & F. Ins.
Co. 41 III. 295; Insurance Co. v. McDowell, mani v. Honie Mut. Ins. Co. 26 La. Ann. 69, 50 I11. 120, 99 Am. Dec. 497; Trumbull v. 21 Am. Rep. 544; Powers v. Guardian Fire Portage County Mut. Ins. Co. 12 Ohio, 305; & L. Ins. Co. 136 Mass. 108, 49 Am. Rep. State Ins. Co. v. Schreck, 27 Neb. 527, 6. 20; New Orleans Ins. Asso. v. Holberg 64 L. R. A. 524, 20 Am. St. Rep. 696, 43 N. W. Miss. 51, 8 So. 175; Pierce v. Nashua F. Ins. 340; Omaha F. Ins. Co. v. Dierks, 43 Neb. Co. 50 N. H. 297, 9 Am. Rep. 235; Hoffman 473, 61 N. W. 740; Home F. Ins. Co. v. V. Ælna F. Ins. Co. 32 N. Y. 405, 88 Am. Johansen, 59 Neb. 349, 80 N. W. 1047; Dec. 337; Germania F. Ins. Co. v. Home Ins. Pouer v. Ocean Ins. Co. 19 La. 28, 36 Am. Co. 144 N. Y. 195, 26 L. R. A. 591, 43 Am. Dec. 665; Lane v. Maine Mut. F. Ins. Co. 12 St. Rep. 749, 39 N. E. 77; Wood v. Ameri- Me. 47, 28 Am. Dec. 150. can F. Ins. Co. 149 N. Y. 382, 52 Am. St.
Although the giving of a mortgage renders. Rep. 733, 44 N. E. 80; West v. Citizens' Ins. the policy void, the release of the same beCo. 27 Ohio St. 1, 22 Am. Rep. 294; Hobbs fore a loss occurs will revive it. v. Memphis Ins. Co. 1 Sneed, 444; Texas
Home F. Ins. Co. v. Johansen, 59 Neb. Bkg. & Ins. Co. v. Cohen, 47 Tex. 406, 26 352, 80 N. W. 1047. Am. Rep. 298; Drennen v. London Assur. Corp. 20 Fed. 657; Virginia F. & M. Ins. Co. Hastings, C., filed the following opinion: v. Vaughan, 88 Va. 832, 14 S. E. 754; Lock- Four errors in the judgment rendered in wood v. Middlesex Mut. Assur. Co. 47 Conn. this action upon an insurance policy for the 553; Pierce v. Nashua F. Ins. Co. 50 N. H. loss of a barn are asserted by the defend297, 9 Am. Rep. 235; Fidelity Mut. F. Ins. ant: First. That the court erred in refusCo. v. Lowe (Neb.) 93 N. W. 749.
ing to instruct the jury to return a verdict A deed is not complete, and no title passes for the defendant insurance company. This thereby, until the same is delivered. Deliv. on the ground that the undisputed evidence ery depends upon intent, which is a ques. showed there had been a change of ownertion of fact; and, unless the grantor, by his ship contrary to the terms of the policy between the time of its issuance and the oc- | the survivor; that about February 14, 1901, currence of the fire. Second. Complaint is Estabrook became dangerously ill, and for also made of instructions numbered 7, 8, the purpose of carrying out this agreement and 9, as not properly submitting the ques. executed a deed for his undivided one-half tions as to the delivery of the insured's deed without any consideration whatever except to the property, and as to ownership of the the partnership agreement, and under the property at the time of the issuance of the agreement that the deed should have no policy. To the first question the insurance force and effect until Estabrook's death; company's counsel devote 26 pages out of that Estabrook did not die, and the deed 33 contained in their brief. Of course, its took no effect. Plaintiffs admit that on decision in their favor would preclude the March 5, 1902, Fox signed and acknowledged necessity of any examination of the others. a warranty deed of the premises to Forbes The cause of the action was loss of a livery and McClain. They say that no considera. stable insured for $1,000 in a policy issued tion was paid for this deed, and that it was by the defendant company to Fox & Esta- never delivered, and that no sale, convey. brook June 24, 1899. The barn was totally ance, or transfer of the property was effected destroyed by fire June 16, 1902. The an- by it; that through inadvertence the deed swer alleged that the facts stated in the was placed on record without ever having plaintiffs' petition were not sufficient to con- been delivered, and without any intention stitute a cause of action, admitted its own that it should be, and did not in any manincorporation, admitted that plaintiffs were ner transfer the title to the property from the owners of the property when insured, Fox to Forbes and McClain, or either of admitted that it was destroyed by fire on them. They admit that on March 29, 1902, June 16, 1902, admitted that notice was Forbes and McClain executed and delivered given, and admitted the denial of all liabil. to Fox a quitelaim deed, but say that it was ity on the company's part and refusal to done solely for the purpose of removing a pay, and denied liability. Defendant alleged cloud from the title of the premises, and that the policy contained a provision that it that neither Forbes nor McClain ever had should become entirely void if the property any interest in the property. The case seems were sold, transferred, or became encumbered to turn upon the question as to whether or by mortgage or trust deed without the writ- not Estabrook's deed to his partner, Fox, ten consent of the company indorsed on the in 1901, is a violation of the conditions of policy. It alleged that on February 14, the policy. It is alleged in plaintiff 1901, plaintiff Estabrook sold his one-half in error's brief that there is
no al interest in the property to Fox, and that i legation in the petition that this is the latter, on March 5, 1902, conveyed the partnership property. This
to premises by warranty deed to James H. be true, but it is alleged in the Forbes and Wm. T. McClain, and after-petition that it was the joint property of wards, on March 29, 1902, Forbes and Mc Fox and Estabrook, and it is alleged in the Clain conveyed to Fox; that these transfers reply, and no exception taken to such pleadwere without the knowledge or consent of ing, that they are still partners, and this is, the company, or indorsement of consent upon and always has been since the issuance of the policy; that it had no knowledge of the the policy, firm property. So far as the transfers until after the loss, when it de- deed of Fox to Forbes and McClain is conclared the policy void, and denied liability. cerned, it is undisputed that in March prior Plaintiff replied by general denial, except to the fire the title of Forbes and McClain, as to matters admitted, and then admitted whatever it was, was reconveyed to Fox, and the making of the deed by Estabrook to was in Fox at the time the fire occurred. Fox in February, 1901, but said that Fox This would seem to render unimportant any was a member of the firm of Fox & Esta- question relating to the deed of Fox to brook, one of the plaintiffs; that when the Forbes and McClain. Where the title may policy was issued the plaintiffs were, and have been during the term of the policy for a long time had been, partners, and still would be unimportant if, prior to the loss, are, under the name of Fox & Estabrook; it had been reconveyed to the parties for that when the policy was issued the title whom it was originally insured, or to one to the property stood in Daniel Fox and properly holding it under the terms of the Oscar A. Estabrook jointly; that the prop- policy. Home F. Ins. Co. v. Johansen, 59 erty was then, and ever since has been, the Neb. 352, 80 N. W. 1047; State Ins. Co. v. property of the firm, each partner owning Schreck, 27 Neb. 527, 6 L. R. A. 524, 20 Am. an undivided one half; that at the time of St. Rep. 696, 43 N. W. 340; Omaha F. Ins. entering into the partnership it was agreed Co. v. Dicrks, 43 Neb. 473, 61 N. W. 740; that on the death of either partner the Johansen v. Home F. Ins. Co. 54 Neb. 548, whole partnership property should belong to '74 N. W. 866. It is true that all of the above cases relate to conveyances by mort. | the transfer of their respective interests as gage, but we do not see why the same doc- partners or joint owners.” Mr. Freeman, trine is not applicable to an absolute deed; in his notes to this case (23 Am. St. Rep. and it was so applied in Power v. Ocean Ins. 618), says that the weight of authority is Co. 19 La. 28, 36 Am. Dec. 665, and Lane v. decidedly in favor of this rule. We are, Maine Mut. F. Ins. Co. 12 Me. 47, 28 Am. therefore, of the opinion that the conveyDec. 150. This being the situation, it be- ance of Estabrook to Fox, and the retention comes unnecessary to consider the state of of the title by the latter to the time of the evidence as to the delivery of the deed the fire, constituted no defense. We are also made to Forbes and McClain. As to the of the opinion that the conveyance by Fox effect to be given to the deed from Estabrook to Forbes and McClain of this property, to Fox, this court is committed to the propo- which was reconveyed to Fox nearly three sition that a sale made by a partner of part- months before the fire, would not constinership property to his partner is not a con- tute any ground for forfeiture at the time veyance within the terms of this forfeiture the loss occurred. The claim that the actual clause. Phenix Ins. Co. v. Holcombe, 57 ownership of the property was in the firmi Neb. 622, 73 Am. St. Rep. 532, 78 N. W. of Fox & Estabrook at the time of the trial 300. It is true that the holding in that case seems amply sustained by the evidence, and was with regard to personal property, and is uncontradicted. In view of this holding counsel for the company claim that it can it seems hardly necessary to examine the have no application to real estate, and that claims of error in the instructions. No in any event there is no claim in the peti- other defense was attempted to be made. tion that this is a partnership property. There seems no occasion to discuss the They, however, cite no case holding the claim in counsel's brief that the evidence, at distinction between transfers of personalty all events, shows a change of possession of and those of real property such as they seek the property, and that this would work a to make. None is indicated in the cases forfeiture. No such defense is pleaded, and which we have examined, and it seems un- the evidence seems to indicate only a change important, also, whether the property is of tenants, and that Forbes and McClain held in partnership or merely in cotenancy. held, besides their lease, an option to purA transfer between the assured owners is not chase, which they never exercised. A mere held to be a violation of the policy, the en- change of tenants is not generally held to tire property being insured to each of them. be ground of foreiture under this clause of The reply in this case alleged in very ex- the policy, and is not claimed in the answer. press terms that the property belonged to It is recommended that the judgment of the partnership, and no ovjection was made the district court be affirmed. at the trial, so far as appears, to this forni of pleading. We think, as is held in Alle- Ames and Oldham, CC., concur. mania F. Ins. Co. v. Peck, 133 Ill. 220, 24 N. E. 538, 23 Am. St. Rep. 610: “The con- Per Curiam: dition requiring notice to the insurance com- The conclusions reached by the Commispany of any contract to sell the property sioners are approved, and, it appearing that
must be held to apply only to trans- | the adoption of the recommendations made actions between the assured and third par- will result in a right decision of the cause, ties, and it can have no application to con- it is ordered that the judgment of the Distracts between the assured themselves for trict Court be affirined.
legislature, have supreme power in all matters of government, where not restrict
ed by constitutional limitations. 2. Section 20, subd. 8, of the act incorporating the town of Reno, approved March 16, 1903, and $1 and 3 of the act empowering city and other boards to revoke and discontinue business licenses, approved March 10, 1903, are not repugnant to any provision of our state or Federal Con
•1. The people, and through them the
*Headnotes by TALBOT, J.
NOTE.-As to revocation of license to sell Newson v. Galveston, 7 L. R. A. 797 ; Child Intoxicating 'iquors, see also, in this series, v. Bemus, 12 L. R. A. 57; American Rapid State ea rel. Getchel v. Bradish, 37 L. 8. A. Teleg. Co. v. Hess, 13 L. R. A. 454 ; Augusta 209, and Voight v. Excise Comrs. 37 L. R. A. v. Burum, 26 L. R. A. 340; Belleville v. Citi292.
zens' Horse R. Co. 26 L. R. A. 681 ; Grand As to right to revoke license generally, see Rapids v. Bruady, 32 L. R. A. 116; State
stitutions; and under them, at the instance People ex rel. Davis v. Truman, 4 Mise. of a member and by unanimous consent of the 247, 23 N. Y. Supp. 913; People ex rel. board, a license may be revoked without no- Funke v. Board of Excise, 24 Hun, 195; tice to the licensee, where there is reason to believe that the business is a nuisance, à Peabody v. Buentillo, 18 Tex. 313. menace to public health, or detrimental to The petitioner should show that the appeace or morals.
plicant has rights, or a valid defense of
which he has been deprived by the er(August 1, 1903.)
roneous action of the inferior court, or that ON DEMURRER to an application for a without fault
, or want of diligence on his writ of review and stay of proceedings part, he has been unable to present his for the purpose of nullifying the action of rights or defenses. defendant in revoking the petitioner’s liquor
Gulf, C. & S. F. R. Co. v. Odom (Tex. license. Demurrer sustained.
App.) 16 S. W. 541; Brandon v. Superior The facts are stated in the opinion. Court (Cal.) 11 Pac. 128; Cunningham v.
Messrs. Leishman & Hummel, for peti- Superior Court, 60 Cal. 577; • Wratten v. tioner:
Wilson, 22 Cal. 468; Johnson v. Superior The powers of city councils are confined to Court, 60 Cal. 578. those expressed in their charter.
Ordinarily a petition for certiorari must Leavenworth v. Norton, 1 Kan. 432; Low show merits. v. Marysville, 5 Cal. 214; Kyle v. Malin, 8 Bradley v. Superior Court (Cal.) 8 Pac. Ind. 34.
617; Gager v. Chippewa County, 47 Mich. Or by necessary intendment or implica- 167, 10 N. W. 186; Davis v. Randall, 26 tion.
Ill. 243. Glass v. Ashbury, 49 Cal. 571; Zottman Where the lower court or tribunal has v. San Francisco, 20 Cal. 96, 81 Am. Dec. jurisdiction of the proceedings any error in 96.
its conclusions as to facts not affecting its City charters to be strictly con- jurisdiction is not reviewable on certiorari. strued.
Barber v. San Francisco, 42 Cal. 630; Re Leonard v. Canton, 35 Miss. 189.
West Bath, 36 Me. 74; Tucker v. Burlington Municipal corporations, in the exercise of County, 1 N. J. Eq. 282; Lees v. Drainage these powers, must act either by resolution Comrs. 125 Ill. 47, 16 N. E. 915, Affirming or by ordinance.
24 Ill. App. 487. 1 Beach, Pub. Corp. pp. 551-553; Ridge
Certiorari will not lie to review the way v. West, 60 Ind. 371.
action of the district court in revoking a The city council cannot make that a nui- permit to sell liquor, as any error comsance which is not one per se.
mitted can be corrected by an appeal. Ward v. Little Rock, 41 Ark. 526, 48 Am. State v. Schmidtz, 65 Iowa, 556, 22 N. Rep. 46; Harmon v. Chicago, 110 Ill. 400, W. 673. 51 Am. Rep. 698; Denver v. Mullen, 7 Colo. The license was properly revoked. 345, 3 Pac. 693; Everett v. Council Bluffs, Schwuchow v. Chicago, 68 Ill. 444; Calder 46 Iowa, 66.
v. Kurby, 5 Gray, 597; Com. v. Brennan, By due process of law is meant such gen-103 Mass. 70; Baker v. Boston, 12 Pick. eral legal forms and course of proceedings 184, 22 Am. Dec. 421; People v. Morris, 13 as were either known to the common law or Wend. 325; People ex rel. Presmeyer v. as were generally recognized in this country i'olice & Excise Comrs. 59 N. Y. 92. at the time of the adoption of the Constitution.
Talbot, J., delivered the opinion of the Gibson v. Mason, 5 Nev. 284.
court: The facts upon which a revocation of Among other things the petitioner alleges petitioner's license was based must appear that on the 15th day of May, 1903, he paid by the record, and must be embodied in the for and received a license from the city of motion or resolution revoking the same. Reno to conduct the business of retail liquor State v. Duyer, 21 Minn. 512.
dealer for the period of three months; that Mr. E. L. Williams, for respondent: on or about the 3d day of last June he re
The dernurrer to the petition for a writ ceived a request from the respondents to of certiorari should be sustained.
attend a meeting on the same evening, and 1f the board of city council had no legal to give them all the information he posexistence, and only pretended to act, your sessed relative to an alleged charge that he honorable court would have no jurisdiction was conducting his business in such a man. to review the proceedings of such a board. ner as to be a nuisance, or detrimental to er rel. National Life Asso. v. Matthews, 40 L. claring saloon a nuisance and ordering it R. A. 418; and Travelers' Ins. Co. v. Fricke, closed, see De Blanc v. New Iberia, 56 L. R. A. 41 L. R. A, 557.
285; Laugel v. Bushnell, 58 L. R. A. 266. As to validity of ordinance arbitrarily de.
public peace or morals; that he complied | unanimous consent." This language does . with this request, and stated he would do not suggest any notice to the licensee, and, all he could to protect his patrons; that so far as the statute is concerned, it is aplater, and on or about the 3d day of June, parent that none is necessary when the lihe was served with a citation issued by the cense is revoked on the motion of a member respondents, ordering him to appear before and by unanimous vote of the board, and the council on the 4th day of June, and that they may act ex parte and arbitrarily, show cause why his license should not be re- and the only protection to the innocent voked; that the citation did not state the holder of a license lies in the unanimity regrounds upon which it was proposed to required for its revocation, and in the honvoke the license; that no due and legal pro- esty, confidence, and efficiency of the memceedings or investigation were had, and no bers of the board as public officials, and the evidence relevant, competent, or material probability that it would be restored upon was introduced tending to prove the truth a showing that it had been unjustly or imof the charge; that the council then ad- properly annulled. Regardless of the rejourned until June 6th, at 6 P. M., when, quirements and validity of the statute, it on motion, the license of petitioner was re- is fairer and better that notice be given as voked, withdrawn, and discontinued; that was done in this case. By appearing the peduring the investigation respondent Luke titioner waived notice, but, as he objects to stated that he had received information rela- the sufficiency of the citation, we prefer to tive to the charge at a time other than their treat the case on the merits, and as if there regular open meeting, but when sworn as a had been no notice or appearance. witness on behalf of petitioner he refused Section 2 of the act last mentioned proto divulge the names of his informants. It vides another method of revocation, and for is further asserted in the petition that re- an investigation by the board, on the petispondents acted in excess of their jurisdiction of a taxpayer, supported by 10 per cent tion because their proceedings were arbi- of the freeholders, but is also silent regardtrary, and petitioner did not have an op- ing notice to the licensee. portunity to make a fair, full, legal, and It becomes pertinent to determine whether complete defense to the charge; and, fur- the petitioner has a vested or contract right ther, that they had no legal power or au- in his license, of which he cannot be dethority to conduct such investigation, or to prived without formal process of law by issue citation to petitioner, or to revoke his the legislature, or the city council through license, unless upon a complaint or peti- those statutory enactments, under the 5th tion being first filed with them.
Amendment to the Constitution of the Respondents demur to the petition on the United States, providing that no person ground that it fails to state sufficient facts shall be deprived of life, liberty, or property in different respects.
without due process of law, or under the We deem it necessary to consider only limitations of our state Constitution. In one of the objections raised, as that goes to the latter document, § 2 of article 1 prothe merits and is conclusive. It may be as claims the fundamental truth that all posumed from the allegations of the petition, litical power is inherent in the people, that and it was conceded on the argument, that government is instituted for their protecthe city council voted unanimously in favor tion, security, and benefit, and that they of revoking the license.
have the right to alter and reform the same Section 20, subd. 8, of the act incorporat- whenever the public good may require. Secing the city of Reno (Stat. 1903, p. 189) |tion 20 of article 4 prohibits the legislaspecifies that the city council shall have ture from passing local or special laws for power "to fix and regulate a license upon, the assessment and collection of taxes, and and regulate all characters of business con article 10 requires the legislature to producted within the corporate limits, and to vide for a uniform and equal rate of assesslicense, regulate, prohibit, or prescribe the ment and taxation and for a just valuation location of saloons or barrooms." Sections of all property. As held by this court in Ex 1 and 3 of an act approved March 10, last parte Robinson, 12 Nev. 263, 28 Am. Rep. (Stat. 1903, p. 81), authorizes all city coun-| 794, and Ex parte Cohn, 13 Nev. 427, these cils and licensing boards "to revoke, with limitations apply to taxes, and not to lidraw, and discontinue any business license, censes, leaving the legislature to regulate where there is reason to believe that such the latter with a free hand where they do business is a nuisance, a menace to public not encroach and discriminate in relation health, or detrimental to the peace or mor- to taxes as properly and ordinarily underals: Provided, that such revocation, with stood, and without other restraint except drawal, or discontinuance shall, when the the responsibility of the legislators to their action is taken on motion of, or at the in-constituents. stance of, a member of the board, be by Questions kindred to the main one here