guage is quite similar in meaning to the language of the clause of the policy now under consideration. The case of Hill v. Protection Co., 59 Pa. St. 474, is in the same line. In that case the policy contained a clause providing "that, if the in On or otherwise," and if it should "be transferred by any contract or change of partnership or ownership," the policy should be void. The property insured was a mill; policy for $3,000, dated March 9, 1865, running five years. On the 4th day of December following, the assured, by articles of agreement, contracted to sell the property insured to William D. Dook for $4,000, as follows: $1,500 on the 1st day of April, 1866, when possession was to be given, and the rest in three equal annual pay. ments. One thousand dollars on account of the first payment was paid January 1. 1866. The company had not consented to the contract of sale. On the 18th day of January, Hill being still in possession by his tenant, the mill was burned. Upon the trial the jury found for the plaintiff, but the trial court entered a judgment for the defendant non obstante veredicto. error, the supreme court reversed the judgment, and directed a judgment on the verdict for the plaintiff. The above authority and cases have been followed by those of Insurance Co. v. Kelly, 32 Md. 421; Kempton v. Insurance Co., (Iowa,) 17 N. W. Rep. 194,-and many others, cited by counsel for plaintiff in error. It is not to be denied that there are respectable authorities and cases holding the reverse view; notably the case of Davidson v. Insurance Co., (Iowa,) 32 N. W. Rep. 514. The opinion in this case is by a divided court, and, while it is ably argued, I do not think that it overturns the authority of the cases on the other side, above referred to. The principle governing the great majority of the cases is that, while the assured retains the policy and an interest in the property equal to its value, together with the legal title, when the property is destroyed he can recover for its loss against the insurance company, notwithstanding a clause in the policy providing that, upon the alienation of the insured property by the assured, the policy should be void. In many of these cases the possession of the property remained in the assured at the date of the loss, but in none of them has that fact been considered as of controlling importance. I am of the opinion that the district court erred in instructing the jury to find for the defendant. The judgment is therefore reversed, and the cause remanded for further proceedings in accordance with law. The other judges concur. unless it is accompanied by a transfer of the policy, which, when a fire insurance is the question, must, moreover, receive the assent or concurrence of the insurers. But most of the policies in use in this country prefer to guard against this contingency by an express stipulation, instead of rely-sured property should be alienated by sale ing solely on the rule of law, and accordingly provide that a sale or alienation of the property shall avoid the contract, unless sanctioned by the consent of the insurer. The courts have generally put a liberal construction on this proviso, by holding that the alienation must be com. plete of all the interest of the insured. Hence a contract of sale will not invalidate the insurance if the vendor retains the legal title, and continues to have an interest in the preservation of the premises, as a security for the payment of the purchase money, at all events until the terms of the sale are so far fulfilled as to invest the vendee with the full, equitable ownership, and entitle him to immediate possession of the property sold," etc. Citing authorities. Among the authorities thus cited is the case of Trumbull v. Insurance Co., 12 Ohio, 305. This case was tried upon an agreed state of facts, differing from those of the case at bar in two points only. There no payment whatever had been made on the contract of sale of the property, while here nearly one-eighth of the purchase money had been paid; there the actual possession of the insured property remained in the family of the assured at the time of the fire and loss, while here the purchaser of the property was in its actual possession at the time of the loss; and in that case there does not appear to have been a clause in the policy like that of the case at bar. The court, in the opinion, say: "This case turns mainly on the question whether the plaintiffs had an insurable interest in the premises insured at the time the loss occurred. From the facts stated in the agreed case it appeared that they had. The legal title was in them, coupled with an equity equal to the full value of the premises, that is, a lien for all the purchase money,-and they were in possession. They had entered into a contract to convey at a future day.. At law this contract did not transfer any right in the land; and in equity the purchaser can only enforce a transier after he shall have laid a proper basis by paying the purchase money. This being the case, there was no alienation of the property which renders the defense of a want of interest in the thing insured valid. The plaintiffs have sustained a loss covered by the policy, and it is equal to the amount insured. The judgment was for the plaintiffs. The case of Insurance Co. v. Stewart, 19 Pa. St. 45, also cited in the notes, is strictly in line with the last above case. So, also, is the case of Masters v. Insurance Co., 11 Barb. 624, also cited, with this addition that in the latter case it appears in the opinion that the seventh section of the act incorporating the defendant provided that, "when any property insured with this corporation shall be aliened by sale or otherwise, the policy shall thereupon be void," etc. This lan Sept. 15, 1891.) GOTTSCHALK v. Becher, Treasurer. 1. Sections 95 and 99 of chapter 14, Comp. St. 1891, are not in pari materia to be construed as exempting from taxation for pre-existing debts adjacent territory annexed by municipal corporations under section 99. 2. The annexation of adjacent territory under section 99 is a judicial proceeding, in which the land-owner is entitled to all the rights of contravention and of appeal. (Syllabus by the Court.) Error to district court, Platte county; POST, Judge. Action by Margaret Gottschalk to enjoin Gus. S. Becher, treasurer of Platte county, from collecting certain taxes. Demurrer sustained. Plaintiff brings error. Affirmed. S. S. McAllister, for plaintiff_in_error. J. M. Gondring and Sullivan & Reeder, for defendant in error. COBB, C. J. In June, 1890, the plaintiff in error commenced her action against the treasurer of said county, praying for a perpetual injunction against the collection of certain taxes, and setting up that she is the owner of certain real estate, beginning at a point 728 feet north of the S. W. corner of the N. E. quarter of section 19, township 17 north, range least, of the 6th P. M., in said county; running thence east 568 feet; thence S. 364 feet; thence east on a line parallel with the south line of the N. E. quarter of said section 19 to a point directly north of the N. E. corner of lot No. 3, in block No. 40, in the original plat of the town of Columbus; thence south to the south line of the N. W. quarter of section 20, in said township and range. (2) Plaintiff alleges that by a decree of this court, duly made and entered on the 15th day of August, 1888, said tract of land was annexed to the city of Columbus as a part thereof. (3) Plaintiff alleges that said city of Columbus, after said land was annexed thereto, without the consent and against the wish of this said plaintiff, platted and laid said land out into lots and blocks, with streets and alleys, as shown by the county records of said Platte county, in a book kept in the county clerk's office of said county, known as the 'PlatBook,' said plat being found at page 51 of said book, a copy of which page and plat | is hereto attached, marked Exhibit A,' and made a part of this petition. That by reason of the platting and surveying of said land by said city, as aforesaid, it appears upon the books of said defendant as lots and blocks, and is assessed as such, whereas in truth and in fact said land has never been laid out into lots and blocks or platted by this plaintiff, and should not so appear upon the tax records or books of said defendant. (4) Plaintiff alleges that a portion of said tract of land, and all thereof that belongs to said plaintiff, is mentioned and described on said plat as blocks 5, 6, 7, and 8, and the west half of blocks 9 and 11, and that said land contained in said blocks is assessed on the tax books and records of said defendant at the total amount of $160.22 for the year 1889, which said amount said defendant claims and alleges to be a lien and incumbrance on said land, as lots and blocks, as provided by the revenue laws of Nebraska. (5) Plaintiff alleges that the total amount of the tax levied on said land for all purposes for 1889 is equal to six cents and one-half mill on each dollar in valuation; that a large amount of said tax is illegal and void, as follows, to-wit: Long prior to the annexation of said land to said city, said city voted and granted certain bonds to the O. N. & B. H. Ry. Co. for the payment of which said bonds and the interest thereon said blocks are assessed and taxed at the sum of two and one-half mills on each dollar of valuation. That long prior to the annexation of said land to said city said city voted and granted bonds to construct water-works within the then limits of said city, and that a tax of seven mills on each dollar in valuation is levied and assessed on said blocks to pay said water-bonds and the interest thereon. That long prior to the annexation of said land to said city, said city voted and issued certain bonds to aid in the construction of certain bridges known as the 'Loup' and 'Platte' river bridges. That there is a tax of eight mills on each dollar in valuation assessed and levied on said blocks to pay said bridge bonds and the interest thereon. That said taxes of seventeen and one-half mills levied on said land as aforesaid is levied and assessed wholly without authority of law, and is no lien or incumbrance on said land. (6) Plaintiff alleges that by reason of the division of said land into lots and blocks as aforesaid it has been taxed and assessed beyond its real value, in proportion to the assessment and taxation of other property similarly situated. (7) Plaintiff alleges that said defendant now threatens and proposes to collect said taxes, and that said taxes, and all of them, appear to be a cloud and a lien on said land in the office and on the records of said defendant, whereas, in truth and in fact, said tax of seventeen and one-half mills is no lien on said land. (8) Plaintiff alleges that she is now able and willing to pay all just taxes taxable on or to said land so soon as the amount thereof is ascertained and declared by this court. Said plaintiff therefore prays that this court may ascertain and declare the true amount of taxes due on said land, to the end that it may be adjusted and paid; that said land may be assessed at its true taxable value as acre property; that said tax of seventeen and one-half mills aforesaid may be declared to be illegal and void, and the collection thereof prohibited and restrained forever; and for such other and further relief as may be just and equitable." Second count: "Said plaintiff for a second and further cause of action refers to the facts stated and set forth in her first count of this petition, and makes them a part of her second count or cause of action so far as they are material or applicable thereto. She alleges that the surveying and platting of said land and laying it out into lots and blocks, streets and alleys, was wholly without her consent and against her will and wish. That she has never received or been tendered any compensation for taking or appropriating her said land for streets and alleys. That she has never dedicated any of the said land to the public for public uses as streets or alleys. That that portion of said land designated on said plat as blocks 5, 6, 7, and 8, and the territory contiguous thereto, designated on said plat as streets and alleys, now is, and for a long time past has been, fenced in by this plaintiff, and used as a pasture. That no part of the territory contiguous to said blocks 5, 6, 7, or 8, indicated on said plat as streets or alleys, has ever been used by the public as such, and it is not necessary for the public convenience, or for the convenience of any private individual, that they should be used as such. She alleges that the surveying and platting and pretended laying out of said land into lots and blocks, streets and alleys, by said city, was and is wholly void, and without authority of law; that a pretended sale of said land by lots or blocks, to pay or satisfy said pretended tax, would convey no title to the purchaser, but would cast a cloud on the title of this plaintiff to her said lands. She therefore asks and prays that a sale of said land or any part thereof may be forever prohibited and restrained for the pretended purpose of paying said tax, on the ground and for the reason that said pretended sale would cast a cloud on the title of this plaintiff; that the purchaser would acquire no valid title; and that said pretended surveying, platting, and laying out of said land into lots and blocks, streets and alleys, by said city, is wholly void and without authority of law." On August 6, 1890, the defendant demurred to the petition because the facts stated in either count did not constitute a cause of action. On the 8th of August following, the court, upon hearing, sustained the demurrer, to which the plaintiff excepted, and, electing to stand on her petition without further plea, the action was dismissed at plaintiff's costs. The error presented is that the demurrer ought to have been overruled. The plaintiff in error claims that her land is not taxable" for any indebtedness of the city existing prior to the date of the completion of such annexation." This language for that purpose being a proviso to section 95 of chapter 14, for the voluntary annexation of adjacent territory to cities of the second class and villages of the population of Columbus, it is claimed by counsel to be applicable to the involuntary and forcible annexations provided for under the succeeding section, 99. Under this section, by the corporate authorities of the city, and under the legal process and judicial forms provided, her land was annexed. There is no provision of taxation for the existing and antecedent debts of the city, nor is there any exemption. The court below sustained the demurrer on the ground that the annexed ground, not being exempt by law, as in that of voluntary annexation, it was subject to taxation, and that an injunction would not lie against an officer charged with its collec-⠀ tion, and that no relief could be found in a bill exhibited against the ministerial officer; that, if the legislature had intended to exclude the land forcibly annexed from any part of the existing burdens of taxation, it would have so provided, as in the previous section. Counsel argues that this conclusion of the court below is inconsistent with the rules of statutory construction, and is repugnant to equity; that the intent, not expressed, is doubtful, and will be construed as most convenient and equitable; that property forced into the city limits, without the consent of the owner, should be taxed for antecedent debts, while that voluntarily annexed should escape this taxation, is inconsistent and inequitable; that these two sections in pari materia are to be construed together as if but one section, explanatory of each other, where the intent of the legislature is obscure, or the words of the act are doubtful. Counsel holds that by the proviso of section 95 the legislature intended to establish a rule for the taxation of all property annexed to a city; and that it is inequitable, illogical, and unreasonable that it should apply only to property voluntarily brought into corporate limits, unless it is inevitable, from an overwhelming weight of judicial authority holding to that construction of the act. Counsel admits the general rule to be, where there is no statute to the contrary, that property annexed to a city becomes liable for all taxes, just the same as the original corporation; that it was to change this rule that the proviso was added to section 95, and that this addition created a general rule, as no motive seems apparent for tax. ing one and not the other, if the tax were reversed. Omitting the tax on property forced into the corporation, it might be assumed that property voluntarily annexed was not exempt. It is further argued that the provisions of section 99, forcing property within the corporate limits of a city or village, are unconstitutional in the process of taking private property for public use without compensation, and without due process of law, as the property is used for pastoral purposes only, and is taxed about three cents on the dollar valuation. What compensation has the plaintiff, then, for the privilege of being taxed by the corporation? And what has she for the confiscation of onethird of it, under section 113 of the same chapter, for the public use as streets and alleys? That the land for the year 1889 was assessed as lots and blocks, and, in default of the taxes being paid, will be advertised and sold as such, casting a cloud upon the plaintiff's title, but conveying none to the purchaser. If an assessment of the land as lots and blocks is void, the assessment is void, and the court should restrain the defendant from further steps towards the collection of it. We differ from all the conclusions of the counsel's ingenious and plausible argument. do not think that the question of the validity of the law under which the plaintiff's land was brought within the city limits and under the jurisdiction of the corporate authorities, subject to the uniform process of taxation of like property for the equal payment of all existing indebtedness of the city, is now open for consideration. The plaintiff alleges “that by a decree of the district court, duly made and entered on August 15, 1888, her land was annexed to the city of Columbus as a part thereof." In that proceeding she was required to be summoned to answer as a respondent. She had then the same rights to be pleaded, to be defended, and to be We . considered as any party has to a judicial proceeding. If the decree of the court was not considered to be to the material benefit of her property, or if justice and equity did not require the annexation of it, she had the privilege of appealing from the decree to this court. Under that decree it was competent, from the provisions of section 113 of chapter 14, to subdivide the annexed property into lots and blocks, with corresponding streets and alleys, upon her failure to subdivide and plat her property as required by section 104 of the act. The assessment for taxes complained of would properly follow; but for that grievance her remedy was found in the provisions of section 148, authorizing the city council to equalize and adjust the assessment of her taxes. In considering the argument that the proviso of section 95 enacted a rule as to the taxation of all property annexed to a municipal corporation of that class, and that the succeeding section was to be governed by it as acts in pari materia, we are satisfied that the legal maxim made use of has no application to the proposition. It is not our office to amend the section, nor to improvise a more convenient construction of its meaning than its words import. The plain understanding of both sections has been that the law makers granted the exemption in the one case and withheld it in the other. It is admitted by counsel that taxation is the rule of law as to all property, and exemption is the statutory exception; but it is claimed that these sections in pari materia, relating to the same subject, and one object, the annexation of adjacent territory to cities of the second class and villages,are to be construed together, and that the proviso of one is the proviso of the other. We shall hold, however, that the sections are not in pari materia, but are distinct and irrelevant to each other; that one is a provision for the intervention of the land-owner, and the other for his contravention and contention against the annexation of his property. Acts conferring distinct rights upon different individuals, which are separate statutes and separate parts of a system, are not to be interpreted together as in pari materia. Between the two sections 95 and 99 of chapter 14 there is a substantial difference to be observed. Territory annexed voluntarily under the first section may be so situated that it would be against equity to compel it to share prior burdens. The policy of the statute encourages annexation and municipal accretion and wealth. Territory can only be annexed in the second instance when the court shall find that it "would receive material benefit," or "that justice and equity require it." Before this annexation by the decree of the district court, the court must have found the statutory condition required, and must have found from evidence that the territory was materially benefited by the system of water-works, the bridges, and the railroad constructed by the aid of municipal bonds, for the redemption of which the plaintiff complains that her land is taxed. We find no relief, under this bill, from this complaint. It is a con. The questions presented are not new to the court. In the case of Wahoo v. Dickinson, 23 Neb. 426, 36 N. W. Rep. 813, the city council, by a two-thirds vote, resolved to annex certain adjacent territory, and petitioned the district court, exhibiting a plat of the ground, stating the requirements of the statute. Section 99. c. 14. Objection being made that the power conferred was legislative, and not judicial, it was held that as a condition of such annexation the court was required to find the allegations of the petition to be true; that such territory, or a part thereof, would receive material benefit from its annexation, and to decree accordingly; that the questions are so far of a judicial character that the courts may be invested with jurisdiction to determine them. Prior to that decision the South Platte Land Company had brought its action against the county of Buffalo to enjoin the collection of taxes on land annexed to the town of Kearney in contravention of the plaintiff, on the ground that the territory annexed had not been platted at the time of the incorporation of the town. It was held that the action could not be maintained. 15 Neb. 605, 19 N. W. Rep. 711. In the case of McClay v. City of Lincoln, 49 N. W. Rep. 282, (at the present term,) the same opinion was expressed under like conditions. The same rule has been held in New York and Michigan, cited in the last reference, and in Ohio, “that such annexation might be ordered without the consent and against the remonstrance of a majority of the persons residing on the annexed territory. Lands thus annexed are liable to local taxation on account of pre-existing city debts." Blanchard v. Bissell, 11 Ohio St. 96. We have no doubt that the county treasurer's demurrer in this case was well taken. The judgment of the district court is affirmed. The other judges concur. HILL, Sheriff, v. PALMER. (Supreme Court of Nebraska. Sept. 15, 1891.) TAXATION-LIEN ON PERSONAL PROPERTY SALB BEFORE WARRANT-BONA FIDE PURCHASERS. 1. Taxes assessed under section 139, c. 77, Comp. St., held a lien on all the personal property of the tax-payer from the delivery of the tax-books to the collector and his demand for payment, without regard to the property assessed. 2. Personal property, sold and transferred, without notice of taxes due, prior to warrant and levy, and without evidence of the statutory requirements creating the lien, held not subject to sale for prior taxes against vendor. (Syllabus by the Court.) Error to district court, Kearney county; GASLIN, Judge. Action by replevin by Rush H. Palmer against Isaac A. Hill, sheriff. Judgment for plaintiff. Defendant brings error. Affirmed. St. Clair & McPheely, for plaintiff in er -Of the value of $100.95, alleging that he wrongfully and unlawfully detained the same for 18 days, to his damage, $▬▬▬ ; and that the same were not taken in execution, or any order, or judgment against the plaintiff, or for the payment of any tax, tine, or amercement assessed against him, or by virtue of any order of delivery issued under the chapter of the Code of Civil Procedure for the replevin of property, or on any other mesne or final process issued against him; praying judgment for the return of the property, or for the value, and damages for the detention of the property. The defendant answered, admitting the plaintiff's allegations, and setting up that he took the property by virtue of a tax-warrant issued by the treasurer of Lincoln township, of said county, for the collection of taxes duly levied on the property, and other personal property of Peter P. Swanson. That at the time of the levy, and after the tax-books for said township were received by the treasurer, the property was owned by and in possession of Swanson, and was subject to levy and seizure, as exemplified by a copy of the warrant. That on April 23, 1889, Swanson sold the property to the plaintiff for value, and he was in possession at the time the tax-warrant was levied. "Warrant. To the sheriff of Kearney County: Whereas taxes to the amount of $64.52, for 1888, against Peter P. Swanson, with interest at 10 % per ann. from February 1, 1889, are due to Kearney county, and unpaid, you are commanded to collect the same, with the penalties and costs, as provided by law, out of the goods and chattels of Swanson, and pay the same to the treasurer of said county, and to return this writ within thirty days, with the manner you have executed the same. Witness my hand this 25 April, 1889. W. F. CHRISLER, Tp. Treasurer, Lincoln Tp. School-Dist. No. 10, Kearney county, Neb." The plaintiff replied that the property was a part of a stock of goods of a shoestore in Minden, Neb., held for sale by Swanson; that there was no proof that the property in controversy was owned by him at the time of the levy of the tax; and the plaintiff denied the same. The issue was submitted to the court without a jury on the stipulations: (1) That on April 1, 1888, to April 1, 1889, Swanson was the owner and in possession of the following part of the goods and chattels in controversy: Eleven prs. Walker boots @ $1.75.... Ten prs. Nelson & Sons @ $3.60 ....... Eleven prs. Nelson & Sons @ $2.20... $ 19 75 36.00 24 20 $ 79.95 (2) That the tax assessed against Swanson for 1888 (still unpaid) was $64. (3) That on April 23, 1889, the plaintiff purchased all of the goods replevied, without actual notice of the lien for taxes. (4) On April 25, 1889, the tax-warrant was issued and levy made by defendant on the property, and possession taken by defendant. (5) The value of the property is stated by the plaintiff The court found the right of property and the right of possession thereto in the plaintiff, with judgment of one cent damages for the wrongful detention thereof, and costs of suit. The defendant's motion for a new trial having been overruled, the following error is assigned for review: “The judgment is contrary to law and to the evidence. Section 139 of chapter 77 (Wheel. St. 701) provides that "taxes assessed upon personal property shall be a lien upon the personal property of the person assessed from and after the time the tax-books are received by the collector." By the provis ions of section 89 of the same revenue law, "in counties under township organization, the town collector shall, as soon as he receives the tax-books, call at least once on the person taxed at his place of residence or business, if in town, city, or village, and shall demand payment of the taxes charged to him on his property. And if any person shall neglect or refuse, after being called upon by the collector, until the first day of January next after such taxes become due, the treasurer, or his deputy, or the sheriff of the county when directed by distress warrant issued by the treasurer, is directed to levy and collect the same, together with the penalty and costs, by distress and sale of personal property belonging to such person, in the manner provided for the levy and sale, on execution. While section 89 of the law requires the town collector, as soon as he receives the tax-book, to call at least once on the tax-payer at his place of residence or business, if in town, city, or village, and demand payment of the taxes charged to him on his property, it does not appear, from any evidence in the case, the date of the receipt of the tax-books, or that any demand was made for payment as required. Section 95 of the law, entitled "Collections, How Made," also provides that the tax-payer shall be called upon at least once at his place of residence or business, if in the town, city, or village of the collector, and demand shall be made for the payment of the taxes charged to him on his property. It does appear from the evidence that the goods in controversy, distrained for the taxes of Swanson on April 25, 1889, were the property of the defendant in error on the 23d of April previous, without actual notice of the tax-lien. The warrant is dated on April 25th, and the levy followed. It was a warrant to collect the taxes, with |