Opinion of the court. Mr. Justice SWAYNE delivered the opinion of the court. We have not found it necessary to consider the doctrine of subsequent conditions broken, upon which the case has been elaborately argued. Another ground of decision is disclosed which we think free from difficulty, and upon which we are satisfied to place our judgment. It appears that the trust deed to Martin and Lynch was executed on the 9th of January, 1863. By its terms it was to become void if the railroad was not completed within one year from its date. This suit was begun on the 30th of November, 1872, more than eight years after the time limited when the deed, upon the contingency mentioned, was to lose its efficacy. The court found that the road had not been begun, and that the company had not been incorporated. There is nothing in the record indicating that either event will ever occur. It was found that the plaintiff had a perfect title when the trust deed was executed. The grantees, therefore, took their entire title from him. It is a corollary that the other grantors had nothing to convey. Their joining in the deed, so far as the title was concerned, was matter of form and not of substance. Without incorporation, the railroad company could not share in the appointment of the committee under whose direction the lots were to be sold and the proceeds were to be distributed. Hence there could be no sale, and the trustees were powerless to do anything but remain passive and hold the title. The object of the conveyance had wholly failed, and the trust was impossible to be performed. The trust thus became barren. One more dry and naked could not exist. It was the plain duty of the trustees to reconvey to their grantor. He was the sole cestui que trust, and had the exclusive beneficial right to the property. A court of equity, if applied to, could not have hesitated to compel a reconveyance. Under these circumstances such reconveyance will be presumed in equity and at law as well. In Lade v. Holford et al.,* Lord Mansfield said that when trustees ought to convey to the beneficial owner he * Buller's Nisi Prius, 110. Opinion of the court. would leave t to the jury to presume, where such presumption might reasonably be made, that they had conveyed accordingly, "in order to prevent a just title from being defeated by a matter of form." This case was approved, and the doctrine applied by Lord Kenyon in England v. Slade.* Three things must concur to warrant the presumption(1) It must have been the duty of the trustee to convey. (2) There must be sufficient reason for the presumption. (3) The object of the presumption must be the support of a just title. The case must be clearly such that a court of equity, if called upon, would decree a reconveyance. The present case is within these categories. The trustees being bound to reconvey, it is to be presumed they discharged that duty, rather than that they violated it by continuing to hold on to the title. The trust was executory. When its execution became impossible, common honesty, their duty, and the law required that they should at once give back to the donor the legal title which he had given to them. It is not necessary that the presumption should rest upon a basis of proof or conviction that the conveyance had in fact been executed. It is made because right and justice require it. It never arises where the actual conveyance would involve a breach of duty by the trustee or wrong to others. Like the doctrine of relation it is applied only to promote the ends of justice, never to defeat them. The rule is firmly established in the English law.§ It is equally well settled in American jurisprudence. Properly guarded in its application, the principle is a salutary one. It prevents circuity of action, with its delays and expense, quiets possessions, and gives repose and security to titles. Sir William Grant said: “Otherwise * 4 Term, 682. † Hill on Trustees, by Bispham, 894. Hillary v. Waller, 12 Vesey, 252; Best on Presumptions, 112. Langley v. Sneyd, 1 Simon & Stuart, 55; Hillary v. Waller, supra, Goodson v. Ellisson, 8 Russell, 588; Doe v. Sybourn, 7 Term, 3; Angier v. Stanard, 3 Mylne & Keen, 571; Carteret v. Paschal, 8 Peere Williams, 198. || Doe v. Campbell, 10 Johnson, 475; Jackson v. Moore, 13 Id. 513; Moore v. Jackson, 4 Wendell, 62; Aiken v. Smith, 1 Sneed, 804; Washburn on Beal Property 415 and note. Opinion of the court. titles must forever remain imperfect, and in many respects unavailable, when, from length of time, it has become impossible to discover in whom the legal estate, if outstanding, is actually vested. . . . What ought to have been done, should be presumed to have been done. When the purpose is answered for which the legal estate is conveyed, it ought to be reconveyed."* If it had been one of the facts found by the court below, that the title was still in the trustees, the case would have presented a different aspect. It is stated only as a conclusion of law, arising upon the facts found. Such findings of facts are regarded in this court in the light of special verdicts. "If a special verdict on a mixed question of fact and law, find facts from which the court can draw clear conclusions, it is no objection to the verdict that the jury themselves have not drawn such conclusions, and stated them as facts in the case." The presumption of the reconveyance arises here, with the same effect upon the specific findings, as if it had been expressly set forth as one of the facts found. The conclusion of law that the title was still in the trus tees, was, therefore, a manifest error. On the contrary, it should have been presumed that Martin and Edwards had reconveyed, and that the title had thus become reinvested in the plaintiff, and the court should have adjudged accordingly. JUDGMENT REVERSED, and the case remanded, with directions to proceed IN CONFORMITY TO THIS OPINION. * Hillary v. Waller, 12 Vesey, supra. Goodtitle v. Jones et al., 7 Term, 43; Roe v. Read, 8 Id. 122; Matthews • Wood's Lessee, 10 Gill & Johnson, 456. Monkhouse et al. v. Hay et al., 8 Price, 256. Statement of the case. INSURANCE COMPANY v. MAHONE. 1. The answer to a question put by an insurance company to an applicant for insurance, on a matter going to affect the risk, as written down by the agent of the company, when he takes the application for insurance, and which is signed by the applicant, may be proved by the evidence of persons who were present, not to have been the answer given by the applicant. Insurance Company v. Wilkinson (18 Wallace, 222), affirmed. 2. The opinion of a medical witness that a person was not worthy of insurance, in June of one year, is not competent evidence in a suit on a policy issued on the 30th of August of the same year; there being n issue made in the pleadings as to the health of the assured prior to the date of the policy. 8. Under a stipulation that "all original papers filed in the case" (a suit against a life insurance company, on a policy of life insurance), and "which were competent evidence for either side," may be read in evidence, the written opinions of the medical examiner of the company, and of its agent appointed to examine risks, both made at the time of the application for insurance and appended to the proposals for insurance, and both certifying that the risk was a first-class risk, are competent evidence on an issue of fraudulent representation to the company, to show that the company was not deceived. 4. Evidence that the general agent of an insurance company, sent by it to examine into the circumstances, connected with the death of a person insured, after so examining, expressed the opinion that it would "be best for the company to accept the situation and pay the amount of the policy," is not competent on a suit by the holders of the policy against the company. ERROR to the Circuit Court for the Southern District of Mississippi. Mahone and wife brought debt on a policy of life insurance issued by the American Life Insurance Company, August 30th, 1870, for $5000, on the life of one Dillard. The policy was issued to him, but to be paid to Mrs. Malone, one of the plaintiffs, his sister, within sixty days after notice of his death, with proviso, that it should be void "if he shall become so far intemperate as to impair his health." Dillard died November 4th, 1870, at a place called Edwards's Depot. The general nature of the defence was that the policy had Statement of the case. been issued on the faith of false and fraudulent representations made by Dillard, whose life was insured, and that those representations were by the express agreement of the parties declared to be warranties. Among the questions propounded to Dillard, and answered in the "proposals for insurance," was the following: "Is the party temperate and regular in his habits?" To which the answer "yes" was appended. This was question and answer No. 5. Question No. 16 was: "Is the applicant aware that any untrue or fraudulent answer to the above queries, or any suppression of facts in regard to health, habits, or circumstances, will vitiate the policy?" To this the answer "yes" was also appended. One issue was whether Dillard had falsely and fraudulently answered "yes" to the question No. 5. None of the answers were written by Dillard, though he signed his name at the foot of them all. They were written by one Yeiser, the agent of the company, and, as he testified, read over to Dillard, who then signed them, and immediately afterwards signed a declaration filled up by the agent, which was, in effect, an agreement that if the said proposals, answers, and declarations returned to the company should be found fraudulent or untrue in any respect, or if there should be any wilful misrepresentation or concealment in the said declaration, the policy should be void. Evidence of all this was introduced by the defendants, and after its introduction the plaintiffs were permitted, against the objection of the defendants, to call a witness, one Cox, and to prove by him that he was present when Yeiser propounded question No. 5 to Dillard, and that Dillard's answer was not "yes," but that "I never refuse to take a drink," or "I always take my drinks," and that the answer "yes" was improperly written down without the knowledge or consent of Dillard. The reception of this testimony of Cox constituted the basis of the first assignment of error. |