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whether against real or personal estate, attaches only upon the debtor's actual interest, and is as much subject to a prior valid equitable lien or title as to a prior legal one. Averill v. Loucks, 6 Barb. 19, 27, and cases there cited (Paige, J.); Kiersted v. Avery, 4 Paige, 9; Lamont v. Cheshire, 65 N. Y. 30, 40; Frost v. Bank, 70 N. Y. 553-556; and see Sisson v. Hibbard, 75 N. Y. 542. Had the steamship company refused to give any supplementary mortgage at all, the rights of the bondholders under the original mortgage and the equitable hypothecation of the two vessels already contracted for and begun, would have been the same in a court of equity; and consequently those rights would prevail over mere execution creditors in the application for surplus moneys.

The other points referred to have been so satisfactorily treated by the commissioner, that I think it unnecessary to make further reference to them, and concur in what he has said. Exceptions overruled and report confirmed.


(Circuit Court, D. Maine. January 12, 1895.)

No. 409.


The proofs in this case do not bring it within the rule that to justify the reformation of a written contract, on the ground of mistake, the testimony must be clear, unequivocal, and convincing.

2. SAME.

A statement, made by a deceased beneficiary in an insurance policy issued two years before, as to his understanding of the terms of the policy, is not admissible to show mistake in the policy.


In a bill of this character it is sometimes permissible to charge fraud or mistake in the alternative.


In this case defective allegations as to citizenship in a petition for removal from a state court were made good by reference to other parts of the record.

This was a bill in equity by Walter T. Bowers, as administrator, and others, against the New York Life Insurance Company, to reform a policy of insurance.

Joseph W. Symonds, for complainants.
Charles F. Libby, for respondent.

PUTNAM, Circuit Judge.

This case was removed from the supreme court of Maine. The removal papers were not printed in the record, though they should have been. On an examination of them, it appears the petitioner makes proper allegations of the citizenship of the complainants. Touching the citizenship of the defendant corporation, the petition only alleges that it is a citizen of the state of New York, which alone is not a sufficient allegation; but the bill itself alleges that the defendant corporation was duly v.68F.no.8-50

organized under the laws of that state, so that, taking the record as a whole, jurisdiction is apparent.

There are occasional instances of such gross injustice happening under the forms of law that, except for the power of courts in equity, exercised under some circumstances, to cancel or reform written contracts or other instruments, and even legal proceedings, the common mind would be shocked, and the law would be brought into disrepute. On the other hand, if this power was practically made use of in such way as to cause a general unsettling of transactions done with apparent care and under solemn forms, the mischief resulting therefrom would be greater than the injustice which the power referred to is intended to relieve against. Therefore, the courts have said that the power is to be exercised only when the testimony on which its exercise is based is clear, unequivocal, and convincing; and they have further said that it cannot be exercised upon a bare preponderance of evidence, which leaves the issue in doubt. U. S. v. Budd, 144 U. S. 154, 161, 12 Sup. Ct. 575.

In Coal Co. v. Doran, 142 U. S. 417, 435, 12 Sup. Ct. 239, the proposition was put in another form, as follows:

"The jurisdiction of equity to reform written instruments where there is a mutual mistake, or mistake on one side, and fraud or inequitable conduct on the other, is undoubted; but, to justify such reformation, the evidence must be sufficiently cogent to thoroughly satisfy the mind of the court."

A striking expression of the practical rule in this particular, as well in equity as at common law, is given by Judge Walton in Connor v. Pushor, 86 Me. 300, 303, 29 Atl. 1083, as follows:

"A deed which can be seen and read is a wall of evidence against oral assaults, and cannot be battered down by such assaults, unless the evidence is clear and strong, satisfactory and convincing."

The complainants in this case do not desire to rescind the contract, but to reform it. The whole tenor of the bill, and its prayers, bring forward nothing else for our action. else for our action. Therefore, the discussions which were had at the bar touching the alleged waiver by the defendant corporation of the strict terms of its policy as to the time of payment of premiums, like the points lately under consideration in Insurance Co. v. Unsell, 144 U. S. 439, 12 Sup. Ct. 671, and to which the mass of proofs taken seems to relate, and touching whether this policy was completed as a contract in the state of Maine or in the state of New York, like those lately under consideration in Society v. Clements, 140 U. S. 226, 11 Sup. Ct. 822, and touching the statutory authority of certain alleged agents, like those lately discussed in Insurance Co. v. Chamberlain, 132 U. S. 304, 10 Sup. Ct. 87, need not be considered in the view which we take of this case. It was said at the bar that the facts offered in evidence touching the first of these three questions threw some reflected light upon the substantial issue; but, if it does, it is so faint as not to assist the court. It is all quite as consistent with the proposition that the defendant corporation did not intend to insist on a strict performance of the provision as to the time of payment found in its policy, as with the proposition that the omission of any express allowance of grace was for any of the reasons alleged in

the bill. Indeed, it more naturally comes in line with the first hypothesis than with the second.

The bill fails to charge fraud on the defendant corporation with the positiveness or with the detail which the rules of equity pleading ordinarily require therefor. Indeed, all the allegations touching fraud are in the alternative. However, we do not find it necessary to criticise them, and perhaps we cannot justly do so. The citation we have already made from Coal Co. v. Doran, ubi supra, shows that relief in reforming written instruments may be granted, not only for mutual mistake, but where there is a mistake on one side and fraud on the other, or, indeed, where there is a mistake on one side and inequitable conduct on the other. Moreover, as is said in Wasatch Min. Co. v. Crescent Min. Co., 148 U. S. 293, 298, 13 Sup. Ct. 600, fraud, especially legal fraud, and inadvertence or mistake, sometimes run into each other; so that it might be difficult, under the precise circumstances of this case, for the complainants to allege, in the particular to which we have referred, more specifically than they have.

Here follows a discussion of the facts, which, by direction of the judge who delivered the opinion, is not reported.

Let there be a decree to dismiss the bill, with costs.


(Circuit Court of Appeals, Eighth Circuit. June 17, 1895.)

No. 603.


Rev. St. Mo. 1889, § 3195, providing that county warrants not presented for payment within five years of their date, or, being presented within that time, and protested for want of funds, and not presented again within five years after funds are set apart for payment thereof, shall be barred, prescribes a special limitation for actions on such warrants, within section 6791, providing that the limitation of 10 years prescribed by section 6774 for action on any writing for the payment of money shall not extend to any action which shall be otherwise limited by any statute.

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

This was an action by William H. Morton against Knox county upon a county warrant. The defendant, in its answer, set up the general statute of limitations. The circuit court sustained a demurrer to this defense. 65 Fed. 369. Defendant brings error. Knox county, in the state of Missouri, the plaintiff in error, sued out this writ to reverse a judgment against it upon a county warrant. In his complaint in this action, William H. Morton, the defendant in error, alleged that on August 9, 1879, the county issued and delivered to him the warrant in suit on account of certain judgments he had obtained against the county; that on August 12, 1879, on December 26, 1888, on January 6, 1892, and on October 9, 1894, he presented this warrant to the county treasurer of Knox county, and demanded its payment; that on each occasion payment was refused by the county treasurer, and the warrant was protested by the treasurer for want

of funds to pay it, and that there never were any funds of the county set apart for, or applicable to, the payment of this warrant prior to January 1, 1892. He made the jurisdictional and the other necessary allegations in his complaint to entitle him to judgment if the defense of the statute of limitations, pleaded in the answer, cannot be sustained. The county, in its answer, pleaded for its fourth defense that the cause of action was barred by the general statute of limitations of 10 years found in section 6774 of the Revised Statutes of Missouri of 1889; and, for its sixth defense, that it was barred by the special statute of limitations found in section 3195 of the Revised Statutes of Missouri of 1889. The defendant in error demurred to these defenses, and his demurrer was sustained. In this court the county has waived the sixth defense, but insists that the court erred in sustaining the demurrer to the fourth.

Charles D. Stewart, for plaintiff in error.

W. C. Hollister and F. L. Schofield filed brief for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the facts as above, delivered the opinion of the court.

Is the time within which an action may be maintained upon a county warrant issued by a county in the state of Missouri limited by section 6774 or by section 3195 of the Revised Statutes of Missouri of 1889? This is the only question that requires consideration in this case. Section 6774 is a part of the general statute of limitations of the state of Missouri, and is found in chapter 103 of the revision of 1889, which is entitled "Limitations of Actions." The provisions of that chapter that are material to the decision of this question are:

"Sec. 6773. Period of Limitation Prescribed.-Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued.

"Sec. 6774. What Actions shall be Commenced within Ten Years.-Within ten years: First, an action upon any writing, whether sealed or unsealed, for the payment of money or property; *** third, actions for relief, not herein otherwise provided for."

"Sec. 6791. Actions Otherwise Limited.-The provisions of this chapter shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute."

Section 3195 is a part of chapter 45 of the revision of 1889, which is entitled "Counties," and it is found under article 4 of that chapter, which is entitled "County Treasurers and County Warrants." The provisions of this section that are pertinent to the question at issue are as follows:

"Sec. 3195. When Canceled-Barred by Lapse of Time, When. *** And whenever any such warrant, being delivered, shall not be presented to the county treasurer for payment within five years after the date thereof, or, being presented within that time and protested for want of funds to pay it, shall not be again presented for payment within five years after funds shall have been set apart for the payment thereof, such warrant shall be barred and shall not be paid, nor shall it be received in payment of any taxes or other dues."

The legal effect of the provisions of chapter 103 is to limit the time within which actions can be maintained upon writings for the pay

ment of money to 10 years, except in cases in which the time for the maintenance of such actions is limited by some other statute; and they expressly provide that in the latter cases the actions shall be brought within the time limited by such statute. The legal effect of section 3195 is to limit the time within which an action can be maintained upon a county warrant to five years after the date thereof, when it is not presented and protested within that time, and in the latter case to five years after funds have been set apart for the payment thereof, unless it is again presented. Attempted judicial construction of the unequivocal language of a statute serves only to create doubt and to confuse the judgment. Where the meaning of statutes is plain and clear on their face, arguments drawn from the history of the legislation and the possible motives or purposes of legislators are entitled to very little consideration. They often serve rather to obscure than to elucidate the meaning of the laws, and, where the signification of the language is certain, the legislature must ordinarily be presumed to have meant what they have expressed. It is only when the terms of the statute are ambiguous, or their signification is doubtful, that the history of the laws and the probable purpose of the legislators can aid in their construction. The statutes we have quoted have been in force in the state of Missouri from a time anterior to the issue of the warrant in question, and their language seems to us so certain, and its signification so plain, that we are compelled to refuse to follow counsel for plaintiff in error into the consideration of matters that are not disclosed by their terms. There is no safer or better settled canon for the interpretation of a statute than that, when its language is plain and unambiguous, it should be held to mean what it plainly expresses, and no room is left for construction. U. S. v. Fisher, 2 Cranch, 358, 399; Railway Co. v. Phelps, 137 U. S. 528, 536, 11 Sup. Ct. 168; Bedsworth v. Bowman, 104 Mo. 44, 49, 15 S. W. 990; Warren v. Paving Co., 115 Mo. 572, 576, 22 S. W. 490; Davenport v. City of Hannibal, 120 Mo. 150, 25 S. W. 364.

In his discussion of the language of these statutes, counsel for the plaintiff in error insists that actions upon county warrants cannot be limited by section 3195, because the effect of such a holding would be to repeal by implication the limitation of 10 years, prescribed by chapter 103. But section 6791 expressly provides that the limitation of 10 years prescribed by section 6774 of that chapter shall not extend to any action limited by any other statute, but that in such a case the limitation prescribed by the latter statute shall govern. Actions upon county warrants have been expressly limited by another statute, which is embodied in section 3195. A decision that actions upon county warrants are limited and governed by the latter statute is not a holding that any of the provisions of sections 6774 and 6791 have been repealed by implication. It is a decision that all of their provisions are in force, and that they must be applied. On the other hand, a decision that actions upon county warrants are not limited by section 3195 is, in effect, a repeal by judicial construction of both section 3195, the statute which limits the action, and section 6791, the statute which provides that in such cases the

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