the life of her husband continues valid, although her interest in his life has ceased in consequence of a divorce. Bliss Life Ins., § 30.

In Sides v. Knickerbocker Life Ins. Co., 16 Fed. Rep'r, 650; S. C., 28 Alb. L. J. 518, the Circuit Court held that a tenant of a landlord who had only a life estate had an insurable interest in the landlord's life; that the amount of recovery could not be limited by the value of his leasehold at the time of taking out the policy, but that the tenant could recover the full face of the policy; and that his interest in the policy was not destroyed by the failure of his interest in the life of the landlord because of the termination of the lease.

In Conn. Mut. Life Ins. Co. v. Schaefer, supra, in which a subsequent divorce was held not to invalidate the policy, the court said: "We do not hesitate to say however that a policy taken out in good faith and valid at its inception is not avoided by the cessation of insurable interest unless such be the necessary effect of the provisions of the policy itself." The remaining question to be considered is as to the validity of an assignment of an insurance policy, legal and binding in its inception to one having no interest in the life insured. The majority of the cases hold that such an assignment is valid. Valton v. Nat. Fund Life Assoc., 20 N. Y. 32; St. John v. Am. Mut. Life Ins. Co., 13 id. 31; Fairchild v. Northeastern Mut. Life Assoc., 51 Vt. 625; Clark v. Allen, 15 Alb. L. J. 409; S. C., 11 R. I. 439, and 23 Am. Rep. 496; Ashley v. Ashley, 3 Sim. 149; Mut. Life Ins. Co. of New York v. Allen (Mass. S. C.), 30 Alb. L. J. 363; Olmsted v. Keyes, 85 N. Y. 593; Cannon v. N. W. Mut. Life Ins. Co., 29 Hun, 470.

In Clark v. Allen, the court in replying to the argument against sustaining an assignment of a life insurance to one having no interest in the life insured, said: "But finally it is urged that the purchaser or assignee subjects himself to the temptation to shorten the life insured, and that this the policy of the law does not countenance. The law permits the purchase of an estate in remainder after a life estate, which exposes the purchaser to a similar temptation. It has been decided too that a policy effected by a creditor on the life of his debtor does not expire when the debt is paid, though the holder then ceases to be interested in the continuance of the life, and is thereafter exposed to the same temptation which is supposed to beset the assignee without interest to bring it to an end." It must be confessed that the answer of the court is not very satisfactory. It is certainly far from being conclusive. The argument based upon the assignability of a remainder is exceedingly weak. It would be the height of folly to prohibit the transfer of a remainder on the ground that the assignee would be interested in accelerating the death of the life tenant, because the original remainderman himself has precisely the same interest. But the original holder of a life insurance policy must as a rule have no such interest. On the contrary he must have an interest in the continuance of the life. It is thus seen that the cases are entirely dissimilar, and the right to purchase in the one case furnishes no argument for the right to purchase in the other.

In Olmsted v. Keyes, the court declared "that if the policy be valid in its inception the party taking it may assign it to any person as he could assign any other chose in action, and that the policy will continue valid in the hands of the assignee, although he has no interest whatever in the life insured."

There are several respectable authorities opposed to this doctrine. Franklin Life Ins. Co. v. Hazzard, 41 Ind. 116; Franklin Life Ins. Co. v. Sefton, 53 id. 380; Missouri Valley Life Ins. Co. v. Sturges (Kans. S. C.), 15 Alb. L. J. 496; May Ins., § 398; Cammack v. Lewis, 15 Wall. 643; Warnock v. Davis, 104 U. S. 775.

The reasoning of the court in Missouri Valley Life Ins. Co. v. Sturges is very powerful, and demonstrates in the most unanswerable manner the evils and anomaly of the doctrine of assignability to a person who has no insurable interest in the life insured. The court said: "On May 8, 1872, Haynes assigned said policy to the present plaintiff, Arthur D. Sturges, who had no interest in the life of Haynes. The insurance company assented to said assignment. The plaintiff, Sturges, afterward paid the premiums on said policy. On January 30, 1873, Haynes died and Sturges then commenced this action to recover the amount of said insurance policy. Can he recover? We think not. Sturges never had any interest in the life of Haynes, but on the contrary his whole interest, after said assignment, was in the death of Haynes. Each year that Haynes lived Sturges was compelled to pay out $150.32 without the slightest hope of ever recovering any thing in return therefor. He was compelled to pay that amount in order to preserve the life of his insurance policy; but no payment that he could make would ever increase the amount of the benefit which he expected finally to receive. The policy in case of death was worth just as much on the day of assignment as it ever could be afterward. If Haynes had died on the very day on which said assignment was made, the holder of the policy would have been entitled to receive just $2,000, and no payment of premiums for any length of time afterward could ever increase that amount. Nor was Haynes bound to ever refund any thing to Sturges. * Nor was there even the slightest tie of kindred or relationship, or even of friendship binding them together and making it de-· sirable to Sturges for Haynes to live, and as soon as that event should take place Sturges expected to receive from the insurance company the sum of $2,000, and of course all his expenditures on said policy and on Haynes' life would then cease. Hence it will be perceived that Sturges, after said assignment, bad a vast interest in procuring the death, but had no interest whatever in preserving his life. Haynes' life cost Sturges $150.32 each year without the slightest benefit in return, while Haynes' death would be worth to Sturges $2,000 without the slightest loss or inconvenience whatever. Now can such a state of things be tolerated by the laws of any civilized country? * If any person should desire to know what men may do when they are strongly interested in procuring the death of another person for the purpose of obtaining the benefit of a life insurance policy, he may read the case of the State of Kansas v. Winner, 17 Kans. 298-300."

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The two cases in the United States Supreme Court are not express authorities in favor of this doctrine. In both cases it appeared that the assignment was only a device to cover up the real transaction which was an insurance in favor of one having no interest in the life insured. The original scheme was the procuring of an insurance which would be void as a wagering contract were it taken out in the name of the party who intended to effect the insurance and derive the benefit from it. To conceal the true nature of of the transaction from the condemnation of the law, the plan of au assignment was resorted to. And it has been held in several cases that where the original procuring of the policy and the subsequent assignment are but parts of the same scheme, and the object of the parties from the inception of the transaction, is to enable one having no insurable interest to hold a life policy in contravention of the common-law rule condemning such policies, the insurance is void. Swick v. Home Ins. Co., 2 Dill. 160; Brockway v. Mut. Benefit Life Ins. Co., 9 Fed. Rep'r, 249; Stevens v. Warren, 101 Mass. 566.

In Olmsted v. Keyes, this principle is recognized. The court after enunciating the general rule of the validity of the assignment, even in favor of one having

no interest in the life insured, attach to it the condition that the policy "was not procured, or the assignment made as a contrivance against betting, gaming and wagering policies."

Whether the burden is on the plaintiff to show that he had an insurable interest in the life of the insured or not, is not definitely settled.

In Ruse v. Mut. Benefit Life Ins. Co., 23 N. Y. 516; and Guard. Mut. Life Ins. Co. v. Hogan, 80 Ill. 35, the court decided that the plaintiff must affirmatively establish that he had such insurable interest. In the first case the judgment was reversed on the ground that the plaintiff had not shown an insurable interest in the life insured, the court saying: "It is said that the defendants by issuing the policy upon the representation of the plaintiff that he had an interest have admitted his interest and that the production of `the policy is at least prima facie evidence of such interest. This position cannot be sustained. All the older authorities show that even in actions upon marine policies not containing the clause interest or no interest,' it was necessary to aver and of course to prove the interest of the plaintiff. It is an indispensable part of the plaintiff's case to be made out affirmatively at the trial. Upon this ground therefore as well as that before considered the judgment of the Supreme Court must be reversed, and there must be a new trial with costs to abide the event. All the judges except Davies and Mason, JJ., concurred that the plaintiff must show an interest in the life insurance." This reasoning is undoubtedly sound if we assume that every policy is void unless the plaintiff has an insurable interest. But that, as we have already see. is not the law. A policy will be valid even without an insurable interest in the person to whom the amount is made payable provided it is not a merely wagering contract. Therefore as a valid insurance may be effected without an insurable interest in the life insured, it would be extremely illogical to make it incumbent on the plaintiff to show such insurable interest as a condition precedent to his right to recover. It would be requiring him to establish a fact the existence of which is not indispensable to the maintenance of his action; and if rigidly enforced it would absolutely annul the rule above referred to sustaining a policy where the person insured has no interest in the life insured, for in many cases the plaintiff would be unable to show an insurable interest for the simple reason that he has none, and yet the policy might fall directly within the protection of the rule which declares valid insurances without any interest in the life insured. The more logical doctrine is that which has been finally established by the New York Court of Appeals in Goodwin v. Mass. Mut. Life Ins. Co., 73 N. Y. 480, in which the court say: It is also insisted that the policy in question was a wager policy, and as such was absolutely void by the Revised Statutes. We think that the defendant to avail itself of any such defense should have set it up by answer, and thus give the plaintiff an opportunity to meet such an issue. In Valton v. National Fund Life Assurance Co., 20 N. Y. 32, a motion was made upon the trial for a nonsuit upon this ground among others, and it was held that the fact that the answer did not set up as a defense that the policy was made in contravention of the statute was a sufficient answer to the point made. If the objection had been raised by answer or on motion to dismiss the complaint, it is not apparent but that it might have been proved that the policy was issued upon the application of the insured or that he insured his own life and the objection thus have been obviated. The defense is an affirmative one and should have been presented on the trial and not afterward." See also Forbes v. American Mut. Life Ins. Co., 15 Gray, 249.

Although it may be regarded as practically settled that a person may effect a valid insurance on his own life in favor of one who has no insurable interest, the question whether such insurance when once effected vests in the beneficiary an absolute and indefeasible title to the policy, or whether such interest is subject to the control of the person taking out the policy, is a question on which the authorities are in a state of irreconcilable conflict. The following authorities hold that the beneficiary has only an inchoate interest in the policy, and that his ultimate enjoyment of its proceeds is dependent on the will of the person effecting the insurance. Clark v. Durand, 12 Wis. 223; Gambs v. Conn. Mut. Life Ins. Co., 50 Mo. 44; Swift v. R. P., etc., Association, 96 II. 309; Landrum v. Knowles, 22 N. J. Eq. 594; Union Mut. Life Ins. Co. v. Stevens, 19 Fed. Rep. 671; Foster v. Gile, 50 Wis. 603; Kerman v. Howard, 23 Wis. 108; Bickerton v. Jaques, 28 Hun, 119; Garner v. Germania Life Ins. Co., 32 Alb. L. J. 91. See also Valley Mut. Life Ins. Co. v. Burke (Virginia), 15 Rep. 572; S. C., 12 Ius. L. J. 337; Richardson v. Kentucky Grangers' Benefit Soc., 1 Ky. L. Rep. & J. 735. There is much force in the arguments by which the courts have sustained and justified this doctrine.

In Garner v. Germania Life Ins. Co., the New York Common Pleas supported its decision that the rights of the beneficiary were not absolute by the following very cogent argument: "There may be many reasons why the right to transfer such an insurance from one beneficiary to another even in the case of children should exist. In the course of years this pecuniary condition may be materially improved by marriage, success in business or other causes, so that it may be more desirable and just that others who have claims upon the insurer and who are in greater need, should have the benefit of the sum secured by the insurance instead of those for whom it was originally intended. When therefore the insurer keeps the policy entirely in his own possession he alone paying the premiums, he should with the consent of the insurance company have the same right to revoke, alter, or change it, that he would have in respect to a will; for like the provisions in a will it is a gift that is to take effect upon his death. He may of course put an end to it by ceasing to pay the annual premium; but there is no reason why his right should be limited to this, and that where for reasons satisfactory to him, he desires to transfer the benefit of it to another, he should have to lose all the premiums he may have paid over a long course of years, and be compelled to pay for a new policy the increased premium consequent upon his increase of years.'

In Bickerton v. Jaques, and Gambs v. Conn. Mut. Life Ins. Co., it appeared that the change was made after the death of the beneficiary; but this fact does not render these two cases any the less authoritative on this point, because it would inevitably follow that the representatives of the beneficiary would take his interest were the policy irrevocable, and it would therefore not be competent for the person taking out the insurance to destroy their interest in the policy, any more thau the interest of the beneficiary himself.

In Hutson v. Merrifield, 51 Ind. 24, the court decided that the representatives would take the interest of the beneficiary where the policy was not cancelled by the person procuring it, during his life-time.

On the other hand the cases which hold that the beneficiary has an indestructible interest in the policy are quite numerous. Lemon v. Phoenix Life Ins. Co., 38 Conn. 294; Ricker v. Charter Oak Life Ins. Co., 27 Minu. 193; Pilcher v. N. Y. Life Ins. Co., 33 La. Ann. 332; Bliss Life Ins., §§ 317-337; Brockhaus v. Kemna, 7 Fed. Rep. 609; Wilmaser v. Continental Life Ins. Co.

(Iowa Sup. Ct.), 23 N. W. Rep. 903; Stilwell v. Mut. Life Ins. Co., 72 N. Y. 385, 391; Weston v. Richardson, 47 L. T. R. (N. S.) 514; Valley Mut. Life Ins. Co. v. Burke, 7 Vir. L. J. 173; Glanz v. Gloeckler, 16 Cent. L. J. 268; Crittenden v. Phoenix Life Ins. Co., 41 Mich. 442.

Some of these cases were decided on the ground that the circumstances of the transaction constituted a valid executed gift of the policy, and that the title to the policy was thus vested in the beneficiary as irrevocably as the title to any other personal property would have been under the same circumstances. In the following cases the decisions were made upon that ground: Lemon v. Phoenix Life Ins. Co.; Pilcher v. N. Y. Life Ins. Co. In these cases it appeared that the policy was delivered to the beneficiary who paid the premiums. But in Ricker v. Charter Oak Life Ins. Co., and Weston v. Richardson, the rights of the beneficiary were held to be indefeasible, even though the person whose life was insured paid the premiums and kept possession of the policy. The rule established by the majority of the cases that the interest of the beneficiary is not absolute is undoubtedly sound. The beneficiary is not a party to the contract; he pays no portion of the premium; the policy is not in his possession; it has never been given to him because delivery is essential to the validity of gift. On what principle can he claim a vested, irrevocable title to it? Neither law nor equity supports such claim. But when the beneficiary has possession of the policy and pays the premiums, the title to the policy may very properly be held to be vested irrevocably in him. The proposition that the moment a policy is issued the beneficiary acquires an absolute and indestructible interest in it without possession of the policy or payment of premiums is too untenable to require argument to refute it. However the case of Stilwell v. Mut. Life Ins. Co., already cited seems to sustain it. The action was to procure the restoration of a policy which had been taken out by a husband on his own life in favor of his wife, and the premiums on which had been paid by him, but which had been surrendered by the husband. It does not expressly appear whether the husband kept possession of the policy, but there is nothing in the case to indicate that he even delivered it to his wife or to any one for her. From the fact that he himself surrendered it to the company without the knowledge or consent of his wife, it is quite certain that he then had possession of it, and the natural inference therefore is that he always retained possession of it from its inception. The court below granted the relief prayed for on two grounds: First, that the surrender was obtained through duress. Second, that the husband had no power to surrender it because it was the property of the wife. On appeal the court said: "If the policy had been his own property and in his own name as before stated we should have some difficulty in sustaining the judgment on the ground of coercion, restraint or duress; but it is unnecessary to determine this point definitely. The other ground of action I regard as more formidable, viz., a want of power to make the surrender without the consent of the plaintiff" (the wife). "When this policy was taken by the husband although he paid the premium from his own means, and even regarding it as a provision for the wife, it was irrevocable so far as he was concerned."

The court decided that the husband had no right to surrender the policy and thus expressly adjudged her interest in it to be absolute and subject to no other control than her own. It cannot be said that the case was decided on the statute which makes provision for the issuing of policies on the lives of husband in favor of wives because the statute was in no manner referred to in the opinion. GUY C. H. CORLISS.

To constitute a bona fide purchaser or mortgagee there must not only be an absence of notice, but also a payment of or fixed liability for the consideration.

On January 3, 1883, A. borrowed $750 of B., and gave him his note therefor, secured by chattel mortgage on certain property, including "six milch cows," and B. duly recorded his mortgage. Four of the cows dropped calves in April, 1883, and the cows and calves remained in A.'s possession till March, 1884. A. being indebted to C. on a note given in January, 1883, and due January, 1884, to secure payment thereof executed to him another mortgage on October 8, 1883, on certain property, including "five spring calves," embracing four of the afore-mentioned calves, which had been separated from the cows after the expiration of the usual period required for their nurture, and were kept by A. in another field, and C. duly recorded this mortgage. Other mortgages on A.'s property were subsequently executed to other creditors, and on foreclosure and sale both B. and C. claimed the amount realized from the sale of the four calves, amounting to $66. Held, that B. was entitled to the proceeds of the sale of the four calves as against C., although had C. been a bona fide purchaser or mortgagee without notice he would have been protected.

The following facts appear from the record: January 3, 1883, one Peter Gleim borrowed of the defendant $750, and gave to him therefor his note for the amount, due in one year, secured by chattel mortgage on certain personal property therein described, including "six (6) milch cows" in Gleim's possession, on his farm, by that description, and no other. That mortgage was duly filed in the proper office on the day it was given. Four of the cows were with calf, and dropped their calves in April, 1883. These four cows and their four calves remained in Gleim's possession until in March, 1884. Gleim being indebted to the plaintiff on a note for $225, given in January, 1883, and due in January, 1884, to secure the same, and at the plaintiff's request, did, October 8, 1883, execute and de liver to the plaintiff a chattel mortgage on certain personal property therein described, including "five spring calves" in the possession and on the farm of Gleim, and these calves included the four calves above mentioned, which mortgage was duly filed in the proper office on the day it was given; and the only consideration therefor was the prior indebtedness on said note, and that was a bona fide indebtedness. In March, 1884, Gleim having given two other chattel mortgages, which were duly filed, to other parties, upon his personal property, upon some of which they were first liens and upon the balance subsequent lieus, ran away, leaving the property on his farm; that thereupon a constable, acting as agent for all the mortgagees, took possession of all the property then on the farm covered by any of the mortgages, and after having advertised the same, sold all the property at public sale; that at such sale, by an arrangement made by all the mortgagees, the defendant acted as treasurer, and received all the moneys and proceeds of the property sold; that after the sale the mortga. gees came together, and after paying from the proceeds the expeuses of sale, settled among themselves *S. C., 24 N. W. Rep. 419.

the fractional shares of such moneys and proceeds to which they were severally and of right entitled, and such shares were severally paid over to them respectively by the defendant, except that both the defendant and the plaintiff claimed the net proceeds of the four calves mentioned, amounting to $66, which sum the defendant refused to pay over to the plaintiff, but claimed it as his own under his chattel mortgage; that all the moneys and property retained by the defendant, including the $66, were insufficient to pay up the amount due on his note and mortgage; that it was not necessary for a calf to follow a cow for nurture more than four months, and that these calves, shortly after they were dropped, were kept by Gleim in a lot by themselves, separate from the cows, after the plaintiff's mortgage was given; and that the plaintiff, at the time of taking his mortgage, had no actual no. tice of any prior mortgage. To recover the $66 so retained by the defendant this action was brought. In the justice's court the plaintiff obtained judgment, but on appeal the Circuit Court, upon the facts stated, gave judgment for the defendant. From that judgment the plaintiff brings this appeal.

C. M. & F. M. Scanlon, for appellant, William Funk. Norcross & Dunwiddie, for respondent, Lemuel Paul.

CASSODAY, J. It has long been settled that "a grant of that which a grantor has potentially, though not actually, is good." Grantham v. Hawley, Hob. (132) 286; Fonville v. Casey, 1 Murph. 389; S. C., 4 Am. Dec. 559; McCarty v. Blevins, 5 Yerg. 195; S. C., 26 Am. Dec. 262. In this State a chattel mortgage given upon a crop of grain at or about the time it is sown, and before it is up, or has any appearance of a growing crop, is wholly inoperative upon such crop when grown. Comstock v. Scales, 7 Wis. 159; Lamson v. Moffat, 61 id. 153. But where such chattel mortgage has been given after the seed sown has sprouted and made its appearauce above the ground as a growing crop, there can be no doubt but what it is operative, and covers the grain when it comes into existence as the product or as an accession to what was growing when the mortgage was given and covered by it. Bryant v. Pennell, 61 Me. 108; Conderman v. Smith, 41 Barb. 404. On the same principle, where the owner of a domestic animal gives a mortgage thereon during the period of gestation, the mortgagee will, as against the mortgagor, be entitled to the offspring when born. McCarty v. Blevins, supra; Conderman v. Smith, supra; Hughes v. Graves, 1 Litt. (Ky.) 317; Evans v. Merriken, 8 Gill. & J. 39; Forman v. Proctor, 9 B. Mon. 124; Fowler v. Merrill, 11 How. 375, 396; Kellogg v. Lovely, 46 Mich. 131.

But it is urged that notwithstanding the mortgage may cover the calves, as between the parties, yet that as they are not described nor in any way referred to in the defendant's mortgage, the filing of it was not constructive notice to the plaintiff, and hence that his mortgage gives him the superior right. Had the defendant, upon obtaining his mortgage, taken possession of the cows, and retained them, and the calves, when dropped, until after the plaintiff obtained his mortgage, then he undoubtedly could have heid them as against the plaintiff. By reason of such possession the plaintiff and the world would have been conclusively presumed to know the defendant's interest in and right to the calves. Our statute authorizes the fil. ing of the mortgage in lieu of such possession, and as equivalent to it. § 2313. Such filing is constructive notice to third parties, subsequently dealing with the property, as to the rights and interests of the mortgagee in the property mortgaged. Such constructive notice is of course co-extensive with the coutents of the mortgage so filed. But from the very na

ture of things it cannot be constructive notice of facts existing dehors the mortgage, and in no manner referred to in it, unless the contents of the mortgage, together with the facts and circumstances connected with the mortgaged property or its possession, are such as to give actual or constructive notice of the rights of the mortgagee to those subsequently dealing with the property; or at least sufficient to put them upon the inquiry. While the calves were following the cows for nurture, it may be that a person acquiring an interest in them by purchase or mortgage would be presumed to know that the mortgage was given during the period of pregnancy.

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In Forman v. Proctor, supra, it was held "that the first mortgage ** * must be regarded as covering and including, for a reasonable time, the produce or descendants of the female animals conveyed by the mortgage, these being incident to the legal title, and the right of immediate possession vested in the mortgagee, for whom the mortgagor holds the possession." The "reasonable time" mentioned manifestly meant the period during which the young followed their mothers for nurture.

In Winter v. Landphere, 42 Iowa, 471, the mortgagor sold the calves when they were eighteen months old, and the court said "the time had passed when it was necessary for their nurture to permit them to follow the cows. At such time it is unnatural to separate the calf from its dam, when it is not taken to the butcher. The two are then usually disposed of together. It may be that during that time the law would regard the calf as covered by a mortgage upon the cow. * * * A description which will enable third persons, aided by remedies which the instrument itself suggests, to identify the property conveyed is sufficient. Nothing short of this will import notice to purchasers. To the same effect is Thorpe v. Cowles, 55 lowa, 408.

The case of Winter v. Landphere, supra, is cited approvingly in Darling v. Wilson, 60 N. H. 59; S. C., 49 Am. Rep. 305. But the court in this last case goes further, and declares that "there being nothing in the mortgage showing an intention to create a lien upon the increase of stock mortgaged, the lien existing only as an incident to the mortgage, would, as between the parties, continue so long only as is necessary for the suitable nurture of the increase. This view is supported upon sound principles." To our minds this view cannot be sustained upon sound principles. The lien was created by the mortgage, and so far as the mortgagor is concerned was entirely independent of the nurture. The mortgage was a valid lien upon the increase as against the mortgagor in possession, and he necessarily knew, when the mortgage was given, the young dropped, and the period of gestation, and hence there would seem to be no valid reason for terminating the lien, as against the mortgagor, merely because the period of "suitable nurture" had passed. Such nurture did not give the lien, and its termination could not take it away as against the mortgagor. As to such mortgagor the question of notice or insufficiency of description is not involved, for he had actual notice that such increase was in fact covered by the mortgage. But as to subsequent bona fide purchasers and mortgagees without notice the question is different. As to them, the period of nurture being passed, and the young being entirely separated from the mother, and not being mentioned in the mortgage, nor any longer connected with the mother covered by the mortgage, they have neither actual nor constructive notice of the mortgagor's rights and interests, nor any thing to put them upon inquiry.

In the case before us the period of nurture had passed, and the calves were kept by the mortgagor in