in the end it was to go to Mary, and with that he was satisfied." One of the errors assigned by the plaintiff is, the admission of this testimony. As it has an important bearing upon what followed in the disposition of the cause, it is necessary to examine the question raised by this exception. The plaintiff contends that the declarations of Stephen Jumel at that time were not competent evidence in the cause; that they were not against his interest; that he was not in possession of the property; that they were not contemporaneous with the acts to which they refer; and, if otherwise admissible, they could only be used as evidence against himself, or his privies in blood or estate. But what were the clear facts of the case as they then stood upon the evidence? The entire property in question had originally belonged to Stephen Jumel. By himself or by his family, his servants in charge or his tenants, he had the undisputed possession of the whole of it, at least down to 1825. Their possession was his possession. They had no pretense of possession except through or under him. The Homestead" had been conveyed by him in 1815 to trustees, for the benefit of himself for life, and after his death for the benefit of his wife for life. Her interest in it was subordinate to his. In 1825, he made another conveyance of "The Homestead" to trustees, for the separate use of his wife in fee. She never had any possession, even of this parcel, except through and under him by a voluntary convey. ance on his part. In 1826, he conveyed the Liberty Street property to trustees, for the separate use of his wife for life, remainder to himself and his heirs in fee. All the rest of the property remained in his actual or constructive possession until the conveyances made by virtue of his power of attorney in 1827. These conveyances were all voluntary on his part; and whatever he may have thought or believed, he retained the power of defeating them at any time by a sale to a bona fide purchaser. He returned home in 1828, and resided with his family on the property which he had thus voluntarily subjected to their use. One tract, the sixty-five acre lot now in question, so far as any evidence had yet appeared in the cause, still remained absolutely in him. It stood as it had always stood, in his possession, seisin, and control. Surely, as to this tract, if not as to the others, he was in a position in which his declarations were admissible. It is unnecessary to refer to authorities on this subject. They are discussed in Greenl. Ev., Vol. 1, sec. 109, and in Taylor, Ev., Vol. 2, sec. 617. Declarations contrary to the tenor of the deeds or documents which he had executed or authorized would not be admissible, it is true; but declarations in entire harmony therewith, and against his interest in reference to property not conveyed, or not shown to have been conveyed, were clearly admissible. The statement testified to by Caryl was of this sort; and according to this statement, the entire property had been settled so as to go to his adopted daughter in the end. There was no conflict of evidence on this subject. On the contrary, the conveyances which Madame Jumel procured to be made, after Mr. Jumel's death, to Hamilton and Philleppon, for the purpose of defeating her own appointment made in 1828, recited the fact that the sixty-five acre tract, as well as the others, had been conveyed by Mary Jumel Bownes to Werckmeister upon the same trusts as those were. The plaintiff put these deeds in evidence, and they corroborate Mr. Jumel's statement. The recitals in those deeds cannot be used against the defendant, it is true; but, as far as they go, they are corroborations, on the plaintiff's part, of the statement referred to. We think the evidence was admissible, and that there was no error in receiving it. This evidence serves to explain what took place at the close of the trial in giving the case to the jury. After the evidence was closed, the bill of exceptions proceeds to state what occurred, as follows: "The plaintiff made no claim for the lands on Seventh Avenue, mentioned in the declaration. As to all the other lands mentioned in the declaration, the defendant's counsel insisted that, on the undisputed facts in evidence, the defendant, as a matter of law, was entitled to a verdict, even if the jury should believe that the plaintiff was the heir at law of Eliza B. Jumel. The counsel on both sides agreed that, on this branch of the defense, there was no conflict of evidence, and that it was a matter for the court to determine." The presiding Judge then proceeded to charge the said jury, and after giving them directions as to the other issues in the cause, on the subject in question he directed them to find specially "That Eliza B. Jumel, at the time of her death, had no estate or interest in the lands claimed, which was descendible to her heirs.” To this charge the plaintiff excepted, and it is assigned for error here. Now if we lay out of view the declarations of Mr. Jumel, above referred to, there was not a particle of evidence in the case to show, as against the defendants, that the sixty-five acre lot had ever been conveyed by Mr. Jumel, or that Madame Jumel had ever acquired any interest therein, except her estate in dower as his widow. There is no evidence of any adverse possession by her under any other claim of title than that which she asserted to the rest of the property. If, therefore, the declarations of Mr. Jumel are to be laid out of view entirely, the charge of the judge was clearly right. The evidence, however, was admitted, and went to the court and the jury together with the other evidence in the case respecting Madame Jumel's title to the land in question; and both parties agreed that, on this branch of the defense, there was no conflict of evidence, and that it was a matter for the court to determine. Now, they either meant to leave it to the Judge, on the whole evidence in the case, including the declarations of Mr. Jumel, as well as the conveyances which were produced, to determine the matter as a question of fact, whether Madame Jumel, at the time of her death, had or had not any descendible interest in the property, or they meant to leave it to him as a ques tion of law, whether upon the whole evidence as it stood (in which they admitted there was no conflict) she had any such descendible interest. If they meant the former, the Judge did determine the question in the only manner in which, by the New York practice, he could do so, by directing the jury to find that she had not such interest. In this view of the case, the decision of the Judge, though given by way of a peremptory direction to the jury, was in the nature of a finding of fact made at the request of the parties, which we cannot review, any more than we could review the finding of a jury on a question of fact fairly submitted to them. But if the parties meant to leave the question to the determination of the Judge as matter of law, assuming that the declarations of Mr. Jumel were to be received as true (which must have been what they intended when they agreed that there was no conflict in the evidence on that branch of the defense), then we are still of opinion that the decision was right. If it was true, as stated by Jumel, that, under the power of attorney made by him, his wife had sold all the property, but that they had had a compromise or settlement, by which the estate owed him a support as long as he lived, and in the end, at his decease and Madame's, it was to go to Mary-if that statement was true, how could the Judge have decided otherwise than he did? That language, in a will or any other document, could never be construed to give Madame Jumel a descendible interest. It is in exact conformity with the known facts of the case as evinced by the documents themselves, so far as the documents go. But there is another aspect of the case as to what the parties meant in their conference with the court, which leads to the same conclusion. It is to be remembered that at the trial of the cause the entire property was in controversy, and as to most of the parcels there was no question as to the deeds and conveyances which had passed. The parties undoubtedly desired the opinion of the court upon the legal effect of these conveyances, and it is quite apparent (though not expressly so stated) that when both sides made the concession or agreement referred to, and requested the court to determine the question, they assumed or intended to assume that all the property had been limited upon the like trusts and appointment. If this was so, the decision called for from the Judge was really as to the effect of the trust-deed execut ed to Werckmeister, and of the several appoint meats made thereunder by Madame Jumel. As in this view of the matter the decision was in conformity with the views of this court in the former case, we hold it to be correct. Where the question presented to the court by a bill in equity is merely an abstract one, and the bill shows no equity in the complainant, it must be dismissed. [No. 26.] Argued Oct. 21, 22, 1878. Decided Nov. 4, 1878. APPEAL from the Circuit Court of the Unit ed States for the District of South Carolina. The case, which arose in the court below, is fully stated in the opinion. Messrs. Dennis McMahon, A. G. Magrath, D. T. Corbin, Jas. Lowndes and J. K. Herbert, for appellant. Messrs. Leroy F. Youmans, Atty-Gen., of S. C., and James Conner, for appellees. Mr. Justice Strong delivered the opinion of the court: This is a bill in equity against the Comptroller-General of the State of South Carolina, the County Treasurer of Charleston County, in said State, and the assignees in bankruptcy of the Blue Ridge Railroad Company, in which the relief sought is an injunction commanding the Comptroller "to cease from refusing to levy a tax for retiring" certain certificates of the state indebtedness, and commanding the County Treasurer "to cease from refusing to receive the same for taxes and dues to the State, except to pay interest on the public debt." The facts of the case, so far as they are exhibited by the bill and so far as they are material for present consideration, are as follows: By an Act of the Legislature of the State, enacted March 2, 1872, reciting in its preamble that, in pursuance of a former Act, the guaranty of the faith and credit of the State had been indorsed on $4,000,000 of bonds issued by the Blue Ridge Railroad Company, and that it was desired to recover and destroy the bonds issued, and relieve the State from the liability incurred by its indorsement and guaranty thereof, the State Treasurer was directed, with the written consent of the railroad company, to require the financial agent of the State to deliver to him for cancellation all the bonds of the company indorsed and guarantied as aforesaid, then in the agent's possession and held by him as collateral security for advances. The 2d section of the Act enacted that, upon the surrender by the company to the State Treasury of the balance of the said $4,000,000 of bonds thus guarantied by the State, the State Treasurer should be authorized and required to deliver to the president of the railroad company treasury certificates of indebtedness (styled rev In every aspect, therefore, in which this branch of the case may be viewed, we think that no error was committed by the court below. The disposal of this question determines the cause. The other errors assigned become entirely immaterial, if Madame Jumel had no descendible interest in the property for the plaint-enue bond scrip) to the amount of $1,800,000, iff to inherit. executed in a manner directed afterwards in the Act. And if the company should not be able to deliver all of said bonds at one time, the Act required the treasurer to deliver to the said president such amount of the treasury certificates as should be proportioned to the amount of bonds delivered. The 3d section made it the duty of the State the Act, to have treasury certificates of indebtTreasurer, in order to carry out the purposes of edness prepared, to be known and designated as Revenue Bond Scrip of the State of South Carolina,' which should be signed by the Treasurer, and which should express that the sum mentioned therein is due by the State of South Carolina to the bearer thereof, and that the himself in a position to invoke our judgment. same would be received in payment of taxes and | all other dues to the State, except special tax levied to pay interest on the public debt. The 4th section pledged the faith and funds of the State for the ultimate redemption of the scrip, and required county treasurers to receive it in payment of all taxes levied by the State, except in payment of special tax levied to pay interest on the public debt. It also required the State Treasurer and all other public officers to receive the same in payment of all dues to the State; and, still further to provide for its redemption, the section levied an annual tax of three mills on the dollar in addition to all other taxes on the assessed value of all taxable prop-ied to pay the interest on the state debt. It does erty in the State, to be collected in the same manner and at the same time as might be provided by law for the levy and collection of the regular annual taxes of the State. And the State Treasurer was required to retire, at the end of each year from their date, one fourth of the amount of the treasury scrip authorized to be issued, and to apply to such purpose exclu- | sively the taxes by the Act required to be levied. The 6th section required the guarantied bonds to be canceled and destroyed on their delivery to the treasurer. In obedience to this Act, the revenue bond scrip was prepared and signed by the State Treasurer. When this was done, a large part of the $4,000,000 of bonds of the railroad company, indorsed and guarantied by the State, had been sold or were pledged as securities for money borrowed by the company. The complainant was a purchaser for value of $417,000 thereof, and he was the bona fide owner and holder of them when the Act of March 2, 1872, was passed. Relying upon the faith of the State as pledged in the said Act of its Legislature, and in the said certificates of indebtedness, he consented to exchange the bonds, amounting to $417,000, for said treasury certificates, amounting to $166,000; and the exchange was made. His bonds, guarantied as above stated, were delivered to the State Treasurer, and they have been canceled. The railroad company and the State have thus been discharged from all obligation to pay the bonds, and the complainant holds in lieu thereof only the certificates of indebtedness to the extent of $166,000. After this exchange had been effected, the bill charges, and it appears, that the State, in various ways, legislated in such a manner as practically to deny the obligation apparently as sumed in the certificates of indebtedness, or revenue bond scrip. By an Act approved October 22, 1873, the Legislature repealed the 4th section of the Act of March 2, 1872, by which a tax was levied for the redemption of the scrip, and forbade the Comptroller-General to levy any tax, for any purpose, unless expressly thereafter authorized therefor. By another Act, approved December 22, 1873, the county auditors and county treasurers of the State were forbidden to collect, or cause to be collected, any tax other than such as were levied by that Act, unless expressly authorized thereafter so to do. The legislation was manifestly inconsistent with the undertaking of the State expressed in the Act of March 2, 1872, and in the revenue bond scrip issued thereunder, and its constitutionality and obligatory force would be a legitimate subject for consideration if the complainant had placed not aver any demand from the state treasury, or any tender to the County Treasurer. Its object is plainly to obtain from this court a declaration that the legislative Acts of October 22 and December 22, 1873, are unconstitutional, because impairing the obligation of the contract made by the Act of 1872, and the certificates thereby authorized and thereunder issued, and this without any averment that the complainant will be injured by them. The question presented to the court is, therefore, merely an abstract one; such an one as no court can be called upon to decide, and the bill shows no equity in the complainant. Hence it was properly dismissed in the court below, and it must be dismissed here, but without prejudice to the complainant's right to bring and prosecute another suit, when he shall be in a condition to exhibit any equity in himself. It is so ordered. THOMAS SNELL, SAMUEL L. KEITH AND V. THE ATLANTIC FIRE AND MARINE (See S. C., 8 Otto, 85-98.) 1. A bill may be maintained to reform a written policy, after loss has actually happened, upon the ground that it does not express the intent of the contracting parties. 2. Parol proof in such cases should never be made the foundation of a decree, variant from the written contracts, except it be of the clearest and most satisfactory character. 3. Relief should not be granted where the party seeking it has unreasonably delayed bringing suit, nor where he acquiesced in the written agreement after becoming aware of the mistake. 4. A mere mistake of law, without other circumstances, constitutes no ground for the reformation of written contracts. 5. It is only when the change in the surrounding circumstances increases the hazard that the assured is under an obligation to inform the company thereof. [No. 24.] Argued Oct. 21, 1878. Decided Nov. 4, 1878. Messrs. Leonard Swett, H. H. Blackburn & W. H. Lamon, for appellants: In the case of Ells v. Tousley, 1 Paige, Ch.. 280, it was decided that a court of equity will correct mistakes in policies; and the acceptance of an erroneous policy by a party does not preclude him from having the error corrected. In the case of the F. Ins. Co. v. Hewitt, 3 B. Mon., 231, the following is the syllabus of the case: "Where the policy delivered to assured differed in its terms from the agreement for in surance, and it appeared that the clerk received the policy, placed it in the safe without any examination on the part of the assured then or afterwards, until the occurrence of the loss: held, that there was no such acceptance of the policy by the assured as would prove that they had waived the original contract or taken this policy as a confirmation of it; and as they still held the original agreement in writing, they might enforce it in equity." In the case of Harris v. Ins. Co., 18 Ohio, 121, the court says: "Harris applies to the agent of the company to effect an insurance on his mill; he tells him the true situation of his title; the agent (the company having previously instructed him to that effect) informs him that he considers such property unincumbered; he writes it down as such in the application, and hands it to Harris to sign, who signs it as it has been drawn up by the agent. The application is handed over to the company, who are informed of the situation of the title, and they afterward treat the policy as valid, by making and collecting assessments on it. * * * And the complainant being by such mistake deprived of his remedy at law, we think he has a right to resort to a court of chancery for relief." 10; Iron Works v. Ins. Co., 25 Conn., 465; Mr. Justice Harlan delivered the opinion of the court: This suit in equity was instituted by Thomas Snell, Saml. L. Keith and Abner Taylor, partners under the firm name of Snell, Taylor & Co., to reform a certain policy of insurance issued by the Atlantic Fire and Marine Insurance Company of Providence, and insuring Samuel L. Keith, from December 6, 1865; at noon, to January 7, 1866, at noon, against loss or damage by fire, in the sum of $8,000 on 220 bales of cotton, described as "stored in open shed at West Point, Miss.; loss, if any, payable to Messrs. Keith, Snell & Taylor." The material allegations in the bill are as follows: that said firm, on December 6, 1865, were the owners of 220 bales of cotton, worth more than $50,000, stored at West Point, Miss., awaiting transportation to some northern market; that Keith applied in behalf of his firm to Holmes & Bro., general insurance agents at Chicago, representing several companies, including the defendant in error, to procure insurance upon all the cotton, for the benefit of the firm, in the sum of $49.500, during such time as it remained at West Point, which time was uncertain, in view of the difficulties of transportation; that Holmes & Bro., the duly accredited and authorized agents, among others, of the defendant Company did agree with Keith, acting for and in behalf of his firm, to make, grant, and secure insurance in the companies by them represented on this cotton in the sum of $49,500, while it was stored at West Point and until shipped to a northern market, and to receive a premium of one per cent. on the total amount insured, to wit, $495, which sum Keith agreed to pay Holmes & Bro., provided the time for the insurance did not exceed one month, but to have a decreased rate if the time exceeded one month, the agreed rate to be paid by Keith when the cotton was removed from West Point, when the extent of the inDecember, 1865, Holmes & Bro., with intent to carry this agreement into effect, caused to be made several policies in different companies, among them the policy sued on, making an aggregate insurance of $49,500, and after the loss occurred notified Keith to pay, and he did pay, the sum of $495, the premium on the whole amount insured, $80 of which was paid to and received by the defendant in error for and on account of his firm and in pursuance of the agreement with Holmes & Bro.; that the policy sued on remained in the possession of Holmes & Bro. until some time after the loss; that after the loss, and before any application to adjust the same was made, Holmes & Bro. with the intent to carry out the agreement that the cotton should be insured until its shipment from West Point filled up the policy so that by the terms thereof the insurance extended from December 6, 1865, until January 7, 1866, at noon; that Keith was assured by Holmes & Bro., when the insurance was taken, that it was not necessary that the policy should state in terms that the insurance was for and on account of Snell, Taylor & Co., In the case of the Ice Co. v. Ins. Co., 23 N. Y.. 359, the court says: "I confess myself unable to see why the plaintiffs were not entitled to a reformation of the contract. The learned Justice who tried the case, in the opinion given by him, after referring to the evidence, observes: The only conclusion I can adopt on this evidence is, that there was a mut-surance could be definitely fixed; that on 6th ual mistake as to the description of the premises, arising from a misunderstanding of the parties in the original negotiation of the contract, and that the defendant's agent, in making the policy, made it as he intended it should be when he agreed to insure the property. The policy was made according to his description, entered by him in the books of the company,' etc. In the case of the Bk. v. Ins. Co., 31 Conn., 526, the court says: It was well remarked by Ellsworth, J., 25 Conn., 427, there is great danger that injustice will be done to persons obtaining insurance, who are inexperienced in the business and place full confidence in the word of an insurance agent, accredited as he is by his public appoint ment. This court have therefore, by a series of decisions, held companies bound by the acts of local agents whenever it could be done consistently with the evidence and rules of law." Beebe v. Ins. Co., 25 Conn., 51; Bouton v. Ins. Co., 25 Conn., 542; Sheldon v. Ins. Co., 25 Conn., 207; Hough v. Ins. Co., 29 Conn., way. The prayer of the bill is that the Company be decreed and ordered to correct and reform the policy by inserting therein the stipulation that the insurance was made for the benefit or for the account of Snell, Taylor & Co., and that the firm have a decree for the sum so intended to be insured on the cotton. The Insurance Company filed an elaborate answer, embracing, in the form of express denials and affirmative statements, almost every defense which the ingenuity and skill of able counsel could suggest. But in view of the points to which the evidence seems to have been mainly directed, it is only necessary to consider certain grounds of defense, which will sufficiently appear in the progress of this opinion. and that the firm would be as fully protected | preceded the preparation and delivery of the and the loss would be as promptly paid, as if policy, and this is demonstrated by legal and exthe policy had expressly stated that the insur- act evidence, which removes all doubt as to the ance was for and on its account; that, relying sense and understanding of the parties. In the upon those assurances, and ignorant that, by attempt to embody the contract in a written the terms and legal effect of the terms em- agreement there has been a mutual mistake, ployed, no other interest in the cotton was in- caused chiefly by that contracting party who sured except his, Keith took the policy into his now seeks to limit the insurance to an interest possession in the full belief that it covered the in the property less than that agreed to be inentire interest of the firm; that soon thereafter, sured. The written agreement did not effect that upon being advised to the contrary by his at- which the parties intended. That a court of torney, he demanded of the insurance agents equity can afford relief in such a case, is, we that the policy be corrected so as to conform to think, well settled by the authorities. In Simpthe real contract and agreement, but Holmes & son v. Vaughan, 2 Atk., case 21, p. 33, Lord Bro. refused to correct or alter the same in any Hardwicke said that a mistake was "a head of equity on which the court always relieves." In Henkle v. Ins. Co., 1 Ves., case 156, p. 318, the bill sought to reform a written policy after loss had actually happened, upon the ground that it did not express the intent of the contracting parties, Lord Hardwicke said: "No doubt but this court has jurisdiction to relieve in respect of a plain mistake in contracts in writing as well as against frauds in contracts, so that if reduced to writing contrary to the intent of the parties, on proper proof, it would be rectified." In Gillespie v. Moon, 2 Johns. Ch., 593, Chancellor Kent examined the question both upon principle and authority, and said: "I have looked into most, if not all, of the cases in this branch of equity jurisdiction, and it appears to me established, and on great and essential grounds of justice, that relief can be had against any deed or contract in writing founded in mistake or fraud. The mistake may be shown by parol proof, and the relief granted to the injured party, whether he sets up the mistake, affirmatively by bill, or as a defense." In the same case he said: "It appears to be the steady language of the English chancery for the last seventy years, and of all the compilers of the doctrines of that court, that a party may be admitted to show, by parol proof, a mistake, as well as fraud, in the execution of a deed or other writing." And such is the settled law of this court. Graves v. Ins. Co., 2 Cranch, 443; Ins. Co. v. Wilkinson, 13 Wall., 231 [80 U. S., XX., 621]; Bradford v. Bk., 13 How., 57; Hearne v. Ins. Co., 20 Wall., 488 [87 U. S., XXII., 395]. It would be a serious defect in the jurisdiction of courts of equity if they did not have the power to grant relief against mutual mistakes or fraud in the execution of written instruments. Of course parol proof, in all such cases, is to be received with great caution and, where the mistake is denied, should never be made the foundation of a decree, variant from the written contract, except it be of the clearest and most satisfactory character. Nor should relief be granted where the party seeking it has unreasonably delayed application for redress, or where the circumstances raise the presumption that he acquiesced in the written agreement after becoming aware of the mistake. Hence, in Graves v. Ins. Co., 2 Cranch, 419, this court declined to grant relief against an alleged mistake in the execution of a policy, partly because We have before us a contract from which, the plaintiff's agent had possession of the policy by mistake, material stipulations have been long enough to ascertain its contents, and reomitted, whereby the true intent and meaning tained it several months before alleging any misof the parties are not fully or accurately ex- take in its reduction to writing. But no such pressed. There was a definite concluded agree-state of case exists here. The policy in quesment as to insurance, which, in point of time, tion was retained for Keith by the insurance The bill upon final hearing was dismissed and from that final order this appeal is prosecuted. 1. We are satisfied that a valid contract of insurance was entered into, on the 6th December, 1865, between Keith, representing Snell, Taylor & Co., and Holmes & Bro., representing the defendant and other insurance companies, and we entertain no serious doubt as to its terms or scope. Although there is some conflict in the testimony as to what occurred at the time the contract was concluded, it is shown, to our entire satisfaction, not only that the agreed insurance covered the 220 bales of cotton, but that Holmes & Bro., with knowledge or information that the cotton was owned by Snell, Taylor & Co., and not by Keith individually, in tended to insure and, by direct statements, induced him to believe that they were giving insurance in his name, upon the interest of the firm. He assented to the insurance being so taken in his name, because of the distinct representation and agreement that the interest of his firm in the cotton would be thereby fully protected against loss by fire so long as it remained at West Point. But according to the technical import of the words employed in the policy which the Company subsequently issued and delivered, only Keith's interest in the cotton is insured. Such is the construction which the Company now insists should be put upon the policy, in the event the court decides there was a binding contract of insurance. The fundamental inquiry, therefore, is, whether Snell, Taylor & Co. are entitled to have the policy reformed so as to cover their interest. |