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 a violation of a condition that the policy shall be void if the property be sold or transferred, or any change take place in the title or possession.

Elliott, Ins. § 281; 3 Joyce, Ins. §. 2258; 1 May, Ins. 4th ed. § 273a; Rumsey v. Phœniz Ins. Co. 17 Blatchf. 527, 1 Fed. 398; Smith v. Phænix Ins. Co. 91 Cal. 323, 13 L. R. A. 475, 25 Am. St. Rep. 191, 27 Pac. 738; Planters' Mut. Ins. Co. v. Rowland, 66 Md. 236, 7 Atl. 257; Grable v. German Ins. Co. 32 Neb. 645, 49 N. W. 713.

9 Am. & Eng. Enc. Law, pp. 150-154; Home F. Ins. Co. v. Collins, 61 Neb. 199, 85 N. W. 54; Allen v. Ayer, 26 Or. 589, 39 Pac. 1; Everts v. Agnes, 4 Wis. 356, 65 Am. Dec. 314; Daggett v. Daggett, 143 Mass. 516, 10 N. E. 313; Curry v. Colburn, 99 Wis. 319, 67 Am. St. Rep. 860, 74 N. W. 778.

The presumption of delivery raised by such recording may be rebutted.

9 Am. & Eng. Enc. Law, p. 160; Home F. Ins. Co. v. Collins, 61 Neb. 202, 85 N. W. 54; Koppelmann v. Koppelmann, 94 Tex. 40, 57 S. W. 570; Walsh v. Vermont Mut. F. Ins. Co. 54 Vt. 351.

A condition in a contract of insurance which prohibits a sale, transfer, or any change in the title or possession of the insured property without the consent of the insurer has no application to a sale or trans-nent fer by one partner to another of his interest in the partnership property.

The word "void" as used in insurance contracts does not necessarily imply the permaavoidance of a policy which has once begun to run, and a change in the title or condition of the insured premises in violation of the provisions of the policy will not prevent a recovery where such premises and the title thereto were restored to their original condition before the loss occurred.

The above rule of construction has been applied to a temporary violation of many different conditions in insurance policies, providing that a breach of such conditions. should render the policies void.

Hinckley v. Germania F. Ins. Co. 140 Mass..

Phenix Ins. Co. v. Holcombe, 57 Neb. 622, 73 Am. St. Rep. 532, 78 N. W. 300; 1 May, Ins. 3d ed. § 279; Angell, Ins. § 200a; 1 Wood, Fire Ins. 2d ed. 744, 745, 748; Elliott, Ins. § 274; 3 Joyce, Ins. § 2295; Parsons, Partn. 4th ed. § 180; Burnett v. Eufaula Home Ins. Co. 46 Ala. 11, 7 Am. Rep. 581; Sun Fire Office v. Wich, 6 Colo. App. 103, 39 Pac. 587; Lockwood v. Middlesex Mut. Assur. Co. 47 Conn. 553; Georgia Home Ins. 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. 863; Allemania F. Ins. Co. v. Peck, 133 Ill. 220, 23 Am. St. Rep. 610, 24 N. E. 538; Dermani v. Home Mut. Ins. Co. 26 La. Ann. 69, 21 Am. Rep. 544; Powers v. Guardian Fire & L. Ins. Co. 136 Mass. 108, 49 Am. Rep. 20; New Orleans Ins. Asso. v. Holberg 64 Miss. 51, 8 So. 175; Pierce v. Nashua F. Ins. Co. 50 N. H. 297, 9 Am. Rep. 235; Hoffman v. Elna F. Ins. Co. 32 N. Y. 405, 88 Am. Dec. 337; Germania F. Ins. Co. v. Home Ins. Co. 144 N. Y. 195, 26 L. R. A. 591, 43 Am. St. Rep. 749, 39 N. E. 77; Wood v. American F. Ins. Co. 149 N. Y. 382, 52 Am. St.

Rep. 733, 44 N. E. 80; West v. Citizens' Ins. Co. 27 Ohio St. 1, 22 Am. Rep. 294; Hobbs v. Memphis Ins. Co. 1 Sneed, 444; Texas Bkg. & Ins. Co. v. Cohen, 47 Tex. 406, 26 Am. Rep. 298; Drennen v. London Assur. Corp. 20 Fed. 657; Virginia F. & M. Ins. Co. v. Vaughan, 88 Va. 832, 14 S. E. 754; Lockwood v. Middlesex Mut. Assur. Co. 47 Conn. 553; Pierce v. Nashua F. Ins. Co. 50 N. H. 297, 9 Am. Rep. 235; Fidelity Mut. F. Ins. Co. v. Lowe (Neb.) 93 N. W. 749.

A deed is not complete, and no title passes thereby, until the same is delivered. Delivery depends upon intent, which is a question of fact; and, unless the grantor, by his

England F. & M. Ins. Co. v. Schettler, 38 Ill. 166; Obermeyer v. Globe Mut. Ins. Co. 43 Mo. 573; Schmidt v. Peoria M. & F. Ins.. 50 Ill. 120, 99 Am. Dec. 497; Trumbull v. Co. 41 111. 295; Insurance Co. v. McDowell, State Ins. Co. v. Schreck, 27 Neb. 527, Portage County Mut. Ins. Co. 12 Ohio, 305; L. R. A. 524, 20 Am. St. Rep. 696, 43 N. W. 340; Omaha F. Ins. Co. v. Dierks, 43 Neb. 473, 61 N. W. 740; Home F. Ins. Co. v. Johansen, 59 Neb. 349, 80 N. W. 1047;

6.

Dec. 665; Lane v. Maine Mut. F. Ins. Co. 12

Power v. Ocean Ins. Co. 19 La. 28, 36 Am.

Me. 47, 28 Am. Dec. 150.

Although the giving of a mortgage renders. the policy void, the release of the same before a loss occurs will revive it.

Home F. Ins. Co. v. Johansen, 59 Neb. 352, 80 N. W. 1047.

Hastings, C., filed the following opinion: Four errors in the judgment rendered in this action upon an insurance policy for the loss of a barn are asserted by the defendant: First. That the court erred in refusing to instruct the jury to return a verdict for the defendant insurance company. This on the ground that the undisputed evidence showed there had been a change of ownership 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 considerastable 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, conveybrook 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 quitclaim 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 alinterest in the property to Fox, and that legation in the petition that this is the latter, on March 5, 1902, conveyed the partnership property. This seems 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 plaintiff's 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. Dierks, 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

of the title by the latter to the time of the fire, constituted no defense. We are also of the opinion that the conveyance by Fox to Forbes and McClain of this property, which was reconveyed to Fox nearly three months before the fire, would not constitute any ground for forfeiture at the time the loss occurred. The claim that the actual ownership of the property was in the firm of Fox & Estabrook at the time of the trial seems amply sustained by the evidence, and is uncontradicted. In view of this holding it seems hardly necessary to examine the claims of error in the instructions. No other defense was attempted to be made.

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 the evidence as to the delivery of the deed made to Forbes and McClain. As to the effect to be given to the deed from Estabrook to Fox, this court is committed to the proposition that a sale made by a partner of partnership property to his partner is not a conveyance within the terms of this forfeiture clause. Phenix Ins. Co. v. Holcombe, 57 Neb. 622, 73 Am. St. Rep. 532, 78 N. W. 300. It is true that the holding in that case was with regard to personal property, and counsel for the company claim that it can have no application to real estate, and that in any event there is no claim in the petition that this is a partnership property. They, however, cite no case holding the distinction between transfers of personalty and those of real property such as they seek to make. None is indicated in the cases which we have examined, and it seems unimportant, also, whether the property is held in partnership or merely in cotenancy. A transfer between the assured owners is not held to be a violation of the policy, the entire property being insured to each of them. The reply in this case alleged in very express terms that the property belonged to the partnership, and no objection was made at the trial, so far as appears, to this formı of pleading. We think, as is held in Allemania F. Ins. Co. v. Peck, 133 Ill. 220, 24 N. E. 538, 23 Am. St. Rep. 610: "The condition 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 will result in a right decision of the cause, it is ordered that the judgment of the District Court be affirmed.

actions between the assured and third parties, and it can have no application to contracts between the assured themselves for

There seems no occasion to discuss the claim in counsel's brief that the evidence, at all events, shows a change of possession of the property, and that this would work a forfeiture. No such defense is pleaded, and the evidence seems to indicate only a change of tenants, and that Forbes and McClain held, besides their lease, an option to purchase, which they never exercised. A mere change of tenants is not generally held to be ground of foreiture under this clause of the policy, and is not claimed in the answer. It is recommended that the judgment of the district court be affirmed.

Ames and Oldham, CC., concur.

Per Curiam:

NEVADA SUPREME COURT.

W. L. WALLACE, Petitioner,

υ.

Mayor, etc., of RENO.

(........ Nev....... .)

*1. The people, and through them the

Headnotes by TALBOT, J.

NOTE. AS to revocation of license to sell Intoxicating liquors, see also, in this series, State ex rel. Getchel v. Bradish, 37 L. R. A. 289, and Voight v. Excise Comrs. 37 L. R. A. 292.

As to right to revoke license generally, see

legislature, have supreme power in all matters of government, where not restricted 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 ConNewson v. Galveston, 7 L. R. A. 797; Child v. Bemus, 12 L. R. A. 57; American Rapid Teleg. Co. v. Hess, 13 L. R. A. 454; Augusta v. Burum, 26 L. R. A. 340; Belleville v. Citizens' Horse R. Co. 26 L. R. A. 681; Grand Rapids v. Bruady, 32 L. R. A. 116; State

The powers of city councils are confined to Court, 60 Cal. 578. those expressed in their charter.

Leavenworth v. Norton, 1 Kan. 432; Low v. Marysville, 5 Cal. 214; Kyle v. Malin, 8 Ind. 34.

Bradley v. Superior Court (Cal.) 8 Pac. 617; Gager v. Chippewa County, 47 Mich. Or by necessary intendment or implica- 167, 10 N. W. 186; Davis v. Randall, 26 tion.

Where the lower court or tribunal has jurisdiction of the proceedings any error in its conclusions as to facts not affecting its

are to be strictly con- jurisdiction is not reviewable on certiorari.

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.

not suggest any notice to the licensee, and, so far as the statute is concerned, it is apparent that none is necessary when the license is revoked on the motion of a member and by unanimous vote of the board, and that they may act ex parte and arbitrarily, and the only protection to the innocent holder of a license lies in the unanimity required for its revocation, and in the honesty, confidence, and efficiency of the members of the board as public officials, and the probability that it would be restored upon a showing that it had been unjustly or improperly annulled. Regardless of the requirements and validity of the statute, it is fairer and better that notice be given as was done in this case. By appearing the petitioner waived notice, but, as he objects to the sufficiency of the citation, we prefer to treat the case on the merits, and as if there had been no notice or appearance.

public peace or morals; that he complied unanimous consent." This language does. with this request, and stated he would do all he could to protect his patrons; that later, and on or about the 3d day of June, he was served with a citation issued by the respondents, ordering him to appear before the council on the 4th day of June, and show cause why his license should not be revoked; that the citation did not state the grounds upon which it was proposed to revoke the license; that no due and legal proceedings or investigation were had, and no evidence relevant, competent, or material was introduced tending to prove the truth of the charge; that the council then adjourned until June 6th, at 6 P. M., when, on motion, the license of petitioner was revoked, withdrawn, and discontinued; that during the investigation respondent Luke stated that he had received information relative to the charge at a time other than their regular open meeting, but when sworn as a witness on behalf of petitioner he refused to divulge the names of his informants. is further asserted in the petition that respondents acted in excess of their jurisdiction because their proceedings were arbitrary, and petitioner did not have an opportunity to make a fair, full, legal, and complete defense to the charge; and, further, that they had no legal power or authority to conduct such investigation, or to issue citation to petitioner, or to revoke his license, unless upon a complaint or petition being first filed with them.

It

Respondents demur to the petition on the ground that it fails to state sufficient facts in different respects.

We deem it necessary to consider only one of the objections raised, as that goes to the merits and is conclusive. It may be assumed from the allegations of the petition, and it was conceded on the argument, that the city council voted unanimously in favor of revoking the license.

Section 2 of the act last mentioned provides another method of revocation, and for an investigation by the board, on the petition of a taxpayer, supported by 10 per cent of the freeholders, but is also silent regarding notice to the licensee.

It becomes pertinent to determine whether the petitioner has a vested or contract right in his license, of which he cannot be deprived without formal process of law by the legislature, or the city council through those statutory enactments, under the 5th Amendment to the Constitution of the United States, providing that no person shall be deprived of life, liberty, or property without due process of law, or under the limitations of our state Constitution. In the latter document, § 2 of article 1 proclaims the fundamental truth that all political power is inherent in the people, that government is instituted for their protection, security, and benefit, and that they 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 legisla specifies 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 conducted within the corporate limits, and to license, regulate, prohibit, or prescribe the location of saloons or barrooms." Sections 1 and 3 of an act approved March 10, last (Stat. 1903, p. 81), authorizes all city councils and licensing boards "to revoke, with draw, and discontinue any business license, where there is reason to believe that such business is a nuisance, a menace to public health, or detrimental to the peace or morals: Provided, that such revocation, with drawal, or discontinuance shall, when the action is taken on motion of, or at the instance of, a member of the board, be by

article 10 requires the legislature to provide for a uniform and equal rate of assessment and taxation and for a just valuation of all property. As held by this court in Ex parte Robinson, 12 Nev. 263, 28 Am. Rep. 794, and Ex parte Cohn, 13 Nev. 427, these limitations apply to taxes, and not to licenses, leaving the legislature to regulate the latter with a free hand where they do not encroach and discriminate in relation to taxes as properly and ordinarily understood, and without other restraint except the responsibility of the legislators to their constituents.

Questions kindred to the main one here