written upon the back of the policy were to be taken as part of it, as fully as if they were set forth at length on its face, and signed by the parties. One of them was article 2, which reads as follows:

The alleged failure to comply with the terms of the section consists in prefixing the words, "the conditions of your policy provide," to the notice required by the statute, which provides that the notice shall "In case of nonpayment of any annual state that "unless such premium . premium or instalment thereof within thir- then due shall be paid. by or before ty days after the same shall fall due, this the day it falls due" (March 5, 1897),[178] policy shall be null and void, subject, how- "the policy and all payments thereon will ever, to provisions as to cash surrender and become forfeited and void," etc., whereas, paid-up policy values. The company will, by reference to the policy, article 2, indorsed however, as a matter of favor, and not of on the back thereof, it will be seen that right, mail notice to the insured or the as- if the premium is not paid within thirty signee, at the last address furnished by him days after the same shall fall due, the polor them to the company, to the effect that icy shall be null and void. The notice thus the policy may be re-established by the pay-mistakenly states that the policy "by its ment of the annual premium or instalment conditions" will become void, etc., while in thereof still due, within ten days after truth it is the language of the statute mailing notice." which the notice uses.

The application for the insurance, which, by agreement, was also made part of the contract, provided that "this application shall be governed by the laws of the state of New York, the place of said contract to be the principal office in the United States of said company, in the city of New York."

Mr. John L. Cadwalader argued the cause, and, with Messrs. George Coggill and George W. Wickersham, filed a brief for petitioner.

Mr. G. K. Denton argued the cause, and, with Messrs. Larz. A. Whitcomb and Albert J. Beveridge, filed a brief for respondent.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion

of the court:

The judgment in favor of the plaintiff below for the recovery of the amount found due upon the policy in question is based on the above-mentioned facts, the courts holding that the policy was not forfeited, but was in [177]full force because of the *alleged failure of the company to comply with the law of New York in relation to giving the notice provided for therein. The provision in question is found in § 92, chapter 690, of the Laws of New York for 1892. The section is set forth in the margin.†

Laws of New York, chap. 690, § 92. 92. No forfeiture of policy without notice. "No life insurance corporation doing business in this state shall declare forfeited or lapsed any policy hereafter issued or renewed, and not issued upon the payment of monthly or weekly premiums, or unless the same is a term insurance contract for one year or less, nor shall any such policy be forfeited or lapsed by reason of nonpayment when due of any premium, interest, or instalment, or any portion thereof required by the terms of the policy to be paid, unless a written or printed notice stating the amount of such premium, interest,

The company contends that the law of New York does not, for the reasons stated in the brief of counsel, apply to the particular facts set forth herein, and it also contends that the notice which was in fact given fully complied with the terms of the law. We pass over the first contention without discussion, because we are of opinion that, assuming the New York statute to apply, the notice given by the company was sufficient, and the policy was forfeited long before the death of the plaintiff's husband.

Referring to the statute, it is seen that, by omitting the above-mentioned words, "the conditions of your policy provide," the rest of the notice actually given does comply with the terms of the statute. The notice informed the assured that, unless the premium which would fall due on the 5th of March, 1897, if the policy was then in force, should be paid by or before that date, the policy and all payments thereon would become forfeited and void, except as to the right to a cash surrender value or paid-up policy. This is exactly what the statute required the notice to state. The statute does not require the notice to state that the policy would become forfeited only after the expiration of thirty days after the payment became due, or notice was mailed, in case such payment were not made, but it says distinctly that the notice shall state that

|

instalment, or portion thereof, due on such
policy, the place where it should be paid, and
the person to whom the same is payable, shall
be duly addressed and mailed to the person
whose life is insured, or the assignee of the
policy, if notice of the assignment has been
given to the corporation, at his or her last
known postoffice address, postage paid by the
corporation or by an officer thereof, or person
appointed by it to collect such premium, at
least fifteen, and not
than forty-five,
days prior to the day when the same is pay-
able.

more

failure to pay the premium by or before the date it falls due will forfeit the policy and all payments thereon.

Why should the mistaken statement as to the conditions of the policy prove fatal, when the exact language of the statute as to the contents of the notice is used? The [179]error of fact as to the consequence of a failure to pay, as contained in the notice, would be exactly the same if the words above referred to had been omitted; because the statute provides that the assured shall, nevertheless, have thirty days after mailing the notice before a forfeiture can be asserted. There can be no doubt that the premium did become due on the 5th of March, and the thirty days' extension simply permitted a payment within that time to save a forfeiture.

probable. A spark of intelligence on the
part of the assured would prompt him to
refer to his policy, and he would then see
the mistake of fact made in the notice as to
the length of the time he had in which to
pay in order to prevent a forfeiture. If he
thought the notice rightly stated the fact
as *to forfeiture, the natural result would be[180]
greater care to pay, or some application to
extend the time of payment on or before
the day when the payment became due. Of
that day he had the ample notice provided
in the statute. It is scarcely possible to
imagine any injury resulting from this er-
ror, although extraordinary and wonderful
things do sometimes occur. Courts, how-
ever, cannot proceed upon the theory that
policy holders are non compotes mentis, and
that the natural result of such a mistake
of fact upon a person of ordinary intelli-
gence cannot be assumed in the case of a
holder of a policy of insurance. It cannot
reasonably be assumed that the assured
might be betrayed into not doing at all
what the notice tells him must be done on
or before a certain day in order to save a
forfeiture, because the notice omits to tell
him of the extended time before the for-
feiture can really be enforced, nor can such
failure be anticipated as the result of the
mistake. So long as the assured has in
fact the notice required by law, we are of
opinion that such a mistake as was made
in this case is immaterial.

The cases from the New York courts do
not decide contrary to our decision herein.
In Phelan v. Northwestern Mut. L. Ins. Co.

Now, whether the statement in the notice were incorrect because of a failure to state accurately the conditions of the policy, or because of a failure to tell the assured the subsequent provisions in the statute as to forfeiture, is not in either case material, so long as the notice follows the statute; and if it do that, it is good, even though it contains such a mistake as is set forth herein. The purpose of the statute was to prevent a forfeiture by the nonpayment of the premium when due, because of inadvertence or forgetfulness; and when the assured receives the very notice required by the statute, its purpose is fulfilled, although the notice contains in another respect such a mistake as does this notice. It is most unreasonable to hold that a statement of the consequence of the failure to pay the premi-113 N. Y. 147, 10 Am. St. Rep. 441, 20 N. um when due, mistakenly attributed in the notice to a provision in the policy, should be held fatal, when the same statement, without attributing it to a provision in the policy, would be a fulfilment of the requirements of the statute. In either case there would be an error as to the time of forfeiture, but there would also be a correct statement, in the very words of the statute, of the time the premium was payable, its amount, and where it could be paid. such case to assume that an injury might follow is, as we think, to assume an ignorance or carelessness on the part of the as-hensive to those versed in the language of sured which is unreasonable as well as im

In

such premium, interest, instalment, or portion thereof, then due, shall be paid to the corporation, or to a duly appointed agent or person authorized to collect such premium, by or before the day it falls due, the policy and all payments thereon will become forfeited and void except as to the right to a surrender value or paid-up policy, as in this chapter provided.

"If the payment demanded by such notice shall be made within its time limited therefor, It shall be taken to be in full compliance with

E. 827, the notice was not like the one in
this case. The notice spoken of there, it
was held, did not comply with the statute,
because it was not given in its words, and
the language actually used was held by the
majority of the court to be so far from com-
plying with the statute in a material man-
ner as to render it of no use. The court
said that the notice, instead of saying that
the policy would become forfeited and void,
said that "members neglecting so to pay
are carrying their own risks;" and that the
latter words, while they might be compre-

insurers, and accustomed to their phrase

the requirements of the policy in respect to the
time of such payment; and no such policy
shall, in any case, be forfeited or declared
forfeited, or lapsed, until the expiration of
thirty days after the mailing of such notice.

"The affidavit of any officer, clerk, or agent
of the corporation, or of anyone authorized
to mail such notice, that the notice required
by this section has been duly addressed and
mailed by the corporation issuing such policy,
shall be presumptive evidence that snch no
tice has been duly given."

ology, were not the language of the statute, | complied with and that the forfeiture was and did not embody the notice which the legal. statute required.

The other case (Schad v. Security Mut. Life Asso. 155 N. Y. 640, 49 N. E. 1104) affirmed, without any opinion, the decision of [181]the appellate division of the supreme court, reported in 11 App. Div. 487, 42 N. Y. Supp. 314, where it was held that a statement that in case of the nonpayment of the premium when it became due the policy would cease to be in force did not comply with the notice required by the statute, that if the premium was not paid when due the policy and all payments thereon would become forfeited and void.

In McDougall v. Provident Sav. Life Assur. Soc. 135 N. Y. 551, 32 N. E. 251, it was held that where the policy was out of the ordinary form, a notice which did not follow literally the words of the statute, but contained a statement reminding the assured of the time and place when and where to make any payments required by the terms of the contract, the amount thereof, and the effect of nonpayment, was sufficient.

A statute of this kind should not be construed so as to make it a trap for either side. Forfeitures, though generally not regarded with favor by courts of equity, yet are necessary, and should be fairly enforced, in cases of life insurance. Promptness of payment is essential in such business. New York L. Ins Co. v. Statham, 93 U. S. 24-30, 23 L. ed. 789-791.

Where, therefore, the assured has in truth received notice (as provided by statute) of the time of payment of the premium, its amount, and where it can be paid, and a statement is made in the words of the statute itself as to the effect of nonpayment, a mistaken additional statement like the one made here ought not to be held a failure to comply with the terms of the statute, and thus prevent a forfeiture which the assured evidently contemplated.

We are aware of the case of New York L. Ins. Co. v. Dingley, 35 C. C. A. 245, 93 Fed. 153. but we cannot agree with the views therein expressed.

The case before us shows no evidence of any injury to the assured on account of the notice. He received, as the record shows, another notice on the 5th of April, informing him that his policy was forfeited, but that it could be reinstated by the simple payment of the premium within ten days [182] thereafter. *He made no acknowledgment of the receipt of the notice, failed to pay the premium, and asked no extension of time. Finally, on the 22d day of April, the

forfeiture was noted on the books of the
company. We think that the statute was

The judgments of the Circuit Court of Appeals and the Circuit Court for the District of Indiana must be reversed and the cause remanded to the latter court, with instructions to enter judgment for the defendant.

Reversed.

CORKRAN OIL & DEVELOPMENT COM-
PANY, Plff. in Err.,

v.

LAURENT ARNAUDET, Arthur Latreille,
Eugene Houssiere, et al.

(See S. C. Reporter's ed. 182-194.)

1. Error to state court-Federal question-when raised in time.-Counsel's inadvertence in relying in the state court on the 5th Amendment to the Federal Constitution as invalidating a provision of the state Constitution is not corrected in time to sustain a writ of error from the Supreme Court of the United States by alleging a violation of the 14th Amendment in a petition for rehearing in the highest state court, which was denied without opinion.

2.

Error to state court-the record for jurisdictional purposes.-The petition for writ of error from the Supreme Court of the United States to a state court, and the assignment of errors therein, form no part of the record on which to determine whether a Federal question was decided by the state court.

3. Error to state court-Federal ques

NOTE. On the general subject of writs of error from United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Kipley v. Illinois, 42 L. ed. U. S. 998, and Re Buchanan, 39 L. ed. U. S. 884.

On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513.

On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33.

Federal

On what the record must show respecting the presentation and decision of a question in order to confer jurisdiction on the Supreme Court of the United States on a wris of error to a state court-see note to Hooker

v. Los Angeles, 63 L.R.A. 471.

As to what is the record for this purposesee note to Home for Incurables v. New York, 63 L.R.A. 329.

As to when Federal question is raised in

time to sustain the appellate jurisdiction of

the Federal Supreme Court over state courtssee note to Chicago, I. & L. R. Co. v. McGuire, 49 L. ed. U. S. 413.

tion-decision on non-Federal ground. | session with Respect to Certain Unconfirmed
-The judgment of a state court denying the and Located Private Land Claims in the
right of possession of real property under a
State of Louisiana.
title founded on an act of Congress, which
rests upon the ground that the title of the ad-
verse party under a tax deed was made good
by prescription under the state Constitution,
involves no Federal question which will sus-
tain a writ of error from the Supreme Court

of the United States.

[No. 22.]

Argued October 24, 25, 1905. vember 13, 1905.

IN

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all States in and to the lands situated in the the right, title, and interest of the United state of Louisiana, known as the located but unconfirmed private land claims therein, aggregating about eighty thousand acres, and Decided No- specifically described in the list or tabular statement accompanying the report, dated February nineteenth, eighteen hundred and eighty, made by the surveyor general of Louisiana to the Commissioner of the General Land Office, under a resolution of the United States Senate of December second, eighteen hundred and seventy-nine, and which report and list were communicated to the Senate by the Secretary of the Interior on March eighth, eighteen hundred and eighty, as Senate Executive Document numbered one hundred and eleven, Forty-sixth Congress, second session, shall be, and the same are hereby, directed to be granted, released, and relinquished by the United [184] States, in fee simple, to the respective owners of the equitable titles thereto, and to their respective heirs and assigns forever, as fully and completely, in every respect whatever, as could be done by patents issued therefor according to law.

N ERROR to the Supreme Court of the State of Louisiana to review a judgment affirming a judgment of the Eighteenth Judicial District Court for the Parish of Acadia, in that state, in favor of defendants in a petitory action to recover possession of real property. Dismissed for want of jurisdiction.

See same case below, 111 La. 563, 35 So.

747.

Statement by Mr. Chief Justice Fuller: This was a petitory action commenced by the Corkran Oil & Development Company in the eighteenth judicial district court for the parish of Acadia, Louisiana, on the 6th day of December, A. D. 1901, against Laurent Arnaudet and others, to recover possession of certain real property. Plaintiff alleged that the land was claimed by Anthony Corkran during his lifetime, and by his heirs and legal representatives after his death, and that said claim, known as the "Corkran grant," was finally confirmed to Corkran's [183] heirs and legal representatives by an act of Congress of February 10, 1897, and a patent was issued to them in accordance with the act. That Corkran died in about the year 1819, and his succession was duly opened in St. Landry parish, where he resided, and where the property was situated, and that petitioner acquired title to said property from Corkran's heirs and descendants by acts of sale on various dates specified, said dates being subsequent to November 10, 1901. That neither Corkran and wife, nor any of his heirs, legal representatives, or descendants, ever sold or disposed of their rights, title, or interests in the land before the sales to petitioner, and petitioner was now the just, true, and legal owner of the prop erty. Notwithstanding which, defendants, without legal right or title, and against petitioner's rights, had entered upon, and now possessed and held, said property, and refused to deliver the same to petitioner as of right.

The act of Congress referred to is as follows (29 Stat. at L. 517, chap. 213): "Chap. 213. An Act to Quiet Title and Pos

"Sec. 2. That nothing contained in this
act shall in any manner abridge, devest, im-
pair, injure, or prejudice any valid right,
title, or interest of any person or persons
in or to any portion or part of the lands
mentioned in said first section, the true in-
tent of this act being to relinquish and
abandon, grant, give, and concede, any and
all right, interest, and estate, in law or
equity, which the United States is or is
supposed to be entitled to in said lands, in
favor of all persons, estates, firms, or cor-
porations who would be the true and law-
ful owners of the same under the laws of
Louisiana, including the laws of prescrip-
tion, in the absence of the said interest and
estate of the United States.

"Sec. 3. That the Department of the In-
terior shall cause patents to issue for such
lands, and such patents shall issue in the
name of the original claimant as appears
in the list or schedule aforesaid, and when
issued shall be held to be for the use and
benefit of the true and lawful owners as
provided in sections one and two of this act.”
The patent is as follows:
"The United States of America to all to
whom these presents shall come, Greet-
ing:

"Whereas, by the act of Congress approved
February 10th, A. D. one thousand eight hun-

dred and ninety-seven, entitled 'An Act to | aforesaid patent, and was held in full and Quiet Title and Possession with Respect to Certain Unconfirmed and Located Private Land Claims in the State of Louisiana,' it is provided

[Here follows the act of February 10, 1897, in full.]

complete ownership long prior to the date of said patent by the authors of defendants and by defendants, under valid and perfect titles, by and under the laws of Louisiana, including the laws of prescription."

That the authors of defendants and de"And whereas, the private land claim of fendants themselves had acquired by true Anthony Corkran appears in the list of and valid title all the right, title, interest, claims embraced in the aforesaid Senate Ex- and estate at law or in equity in the lands ecutive Document numbered one hundred patented to Anthony Corkran and his heirs [185] and eleven, *and, therefore, stands confirmed prior to the issue of the patent, by virtue and entitled to (a patent under the terms of the laws of Louisiana providing for the of the) act of Congress hereinbefore recited. sale of all lands situated within its borders "And whereas, the aforesaid claim has for nonpayment of taxes, by mesne conbeen regularly surveyed as section forty-veyances of said lands from the purchaser seven in township nine, south of range two at a tax sale December 2, 1882, for unpaid west in the southwestern district of Louisi- taxes assessed on said realty for the year ana, containing five hundred and eighty│1881; and that since said tax sale the real acres and ninety hundredths of an acre, as appears by the plat and descriptive notes thereof on file in the General Land Office of the United States, duly approved by Chas. F. Dickinson, U. S. surveyor general for the state of Louisiana, on the thirtieth day of October, one thousand eight hundred and ninety-seven, which said plat and descriptive note are herein inserted and made a part of these presents, and are in the words and figures following, to wit:

.

[Plat and descriptive note.]

"Now know ye, that the United States of America, in consideration of the premises herein set forth, and in conformity with the provisions contained in sections two and three of the aforesaid act of the tenth day of February, one thousand and eight hun dred and ninety-seven, has given and granted, and by these presents does give and grant, unto the said Anthony Cockran and to his heirs and assigns, the tract of land embraced and described in the foregoing survey.

"To have and to hold the said tract of land with the appurtenances unto the said Anthony Cockran his heirs, assigns, and successors in interest forever."

Dated November 22, 1897.

The defendants filed exceptions, and also answered, admitting that Anthony Corkran, or Cochran, claimed the land in question, and that it was patented to Corkran and his heirs under and according to the act of February 10, 1897, which was fully set forth in the preamble to the patent; and they asserted that the true intent of said act of Congress fully appeared from the 2d sec tion of the act, and that "under and by virtue of the laws of Louisiana, all the right, title, and interest of Anthony Corkran and his heirs in and to the land claimed by plaintiff, and patented as aforesaid to An[186]thony Corkran and his heirs, had been devested long prior to the issuance of the

estate in question has always been in the
possession of the purchaser at that sale and
the authors of defendants and the defend-
ants themselves, and been occupied by them
as owners in undisturbed and quiet posses-
sion. Defendants further pleaded in bar of
the action and in support of their title "the
prescription of three, five, and ten years,
and that the prescription of three years es-
tablished by article 233 of the Louisiana
Constitution of 1898 is a complete bar to
this action." Defendants also asserted that
they had paid taxes on said property dur-
ing the time of their possession, and had
placed thereon valuable improvements,
amounting in the aggregate to upwards of
$20,000. The trial court decided the case
on the merits, and found that defendants
claimed title to the land in controversy
through Henry Gellert, who purchased the
land at a tax sale in 1882, for taxes assessed
against said land in the name of Anthony
Corkran or his heirs, and set forth the facts
on which the court held that the land in
controversy was subject to such assessment
and sale. The trial court held that the de-
fendants were protected by the prescription
of three years, provided in article 233 of the
Constitution of 1898, as well as the prescrip-
tion of three and five years pleaded, *and[187]
entered judgment for defendants. On ap-
peal, the judgment was affirmed by the su-
preme court of Louisiana, the case being
reported 111 La. 563, 35 So. 747.

That court found as facts that, under the act of February 10, 1897, a patent issued on November 22, 1897, to Anthony Corkran and his heirs and assigns for the lands in controversy in this suit; that there was not in the record any previous application for the land or entry thereof by Anthony Corkran, but that the records of the Land Department showed that, in 1816, the land was surveyed by Deputy United States Surveyor Aborn, by virtue of "an order from the