It follows that the judgment of the court below must be reversed, and the cause of action dismissed.

WARD et al. v. WARD. (No. 175.)

existing against the property, and charged that the notes were obtained by such fraudulent and false representations. They alleged, further, that the appellee was in possession of the lands, enjoying the rents, and had remained so since the execution of the notes, and collected rents amounting to more than $500, and converted timber from the lands of the value of $250, and had failed to pay the taxes of $150 due thereon, and asked judgment for the difference between the amount of the notes sued on and the amounts alleged in their cross-complaint. The testimony tends to show that Josephine Ward died in 1900, the owner of the lands, and that appellee became the administrator of the estate; that there were debts amounting to about $450 and assets of the value of $250

REMEDIES OF PUR

CURTESY 12-SALE -
CHASER-DEFECTS IN TITLE.

Where remaindermen, who took after the expiration of plaintiff's estate by the curtesy, recognized his title and purchased his interest without investigating whether the taxes had been paid, and there were no misrepresentations by plaintiff, who was an aged man, payment of the purchase price cannot be avoided on the ground that, the property having been sold for taxes, the estate by the curtesy was forfeited under Kirby's Dig. § 7132.

[Ed. Note.-For other cases, see Curtesy, Cent. Dig. §§ 43-64; Dec. Dig. 12.]

Appeal from Clay Chancery Court; Edward D. Robertson, Chancellor.

Suit by T. J. Ward against J. J. Ward and others. From a decree for plaintiff, defendants appeal. Affirmed.

Appellee brought this suit upon two purchase-money notes, to foreclose a vendor's lien retained in a deed conveying certain lands to appellants. The complaint alleges that appellants inherited the lands from their mother, Josephine Ward, wife of appellee, upon her death, and that he, the father of appellants, paid off judgment liens and purchase-money notes, by which the lands were incumbered, amounting to the sum for which the notes sued on were executed, and that he also sold to them his curtesy interest in the lands for said sum. Appellants answered, and admitted the execution of the notes, and that they had refused to pay same, but denied that there were any judgment liens or purchase-money notes outstanding against the lands that had been paid by their father, appellee; that he was entitled to a lien against the property on account of any such payment, or for the payment of the notes executed by them, and alleged that the consideration for the notes had failed. They alleged by cross-complaint that appellee had fraudulently and falsely represented to them that judgment and purchase-money liens existed against the land for the sum of $450, and induced them to execute the notes sued on to relieve the lands from such liens, de

He

children, the appellants, conveying his curtesy interest in the lands in consideration of the notes sued on, which also covered the amount the estate was due him for judgments paid off and liens discharged. There was some testimony about improvements upon the place made by him, for which appellants had agreed to pay $200, and also for the clearing of some lands which had not been paid. His final settlement as administrator showed a balance due him of $444, and that the taxes had been charged against the estate in each settlement. said he had charged himself in the settlements for the rents collected from the lands, and when he sold them to appellants, it was agreed that they would pay the delinquent taxes and make no claim for the timber cut. The fences and house built by appellee were worth about $375. Appellants admitted the execution of the notes, that appellee had a life estate in the lands, and insisted that they were entitled to the rents for the year of 1911, the deed having been made to them in June, and that appellee had forfeited the life estate by failure to pay the taxes and a sale therefor not redeemed from by him within a year thereafter, and that his right was forfeited on this account before and at the time of the conveyance, of which appellants had no knowledge, and that the notes were therefore without consideration. They also denied that there was any judgment alleged against the land that had been discharged by appellee before the execution of the notes sued on. From the decree foreclosing the lien, appellants appeal.

R. H. Dudley, of Piggott, for appellants.

KIRBY, J. (after stating the facts as above). The chancellor's findings, in appellee's favor, that there was no failure of consideration of the notes sued on is supported by the testimony, which tends to show that the estate was indebted to appellee, as administrator, in a sum equal to the amount for

residence which was destroyed by fire on the 29th of December, 1913, and that the contractors had offered to rebuild the house for the amounts set out, and that it cost him more than $6,000 to build the said dwelling house.

Fuquay testified that he mailed these estimates, together with his affidavit, to Mr. T. R. Smallwood, at his address at the Marion Hotel in Little Rock, Ark., and that he stamped the letter and placed it in the post office himself. Mr. Smallwood denied that he directed Fuquay to make out these estimates, and denied that he entered into any agreement whatever with him looking to the adjustment of the loss on his dwelling house. He also denied that he received the estimates which Fuquay testified he had mailed to him. He admitted, however, that the Marion Hotel was the place where he lived and where his mail was sent. Other facts will be referred to in the opinion. The jury returned a verdict for the plaintiff, and the defendants have appealed.

W. L. & D. D. Terry and Mehaffy, Reid & Mehaffy, all of Little Rock, for appellants. E. E. Hopson, of Arkansas City, and J. W. House, Jr., of Little Rock, for appellee.

HART, J. (after stating the facts above). [1] Henry Thane was agent for both companies, with authority to make contracts for insuring property and to write policies of insurance. He wrote and issued the policies of insurance on which these acAt the time he was president of the Desha Bank & Trust Company, which held a mortgage for $840 on the insured property. The mortgage clause made the loss, if any, payable to the mortgagee as his interest might appear. It was not shown that the insurance company had notice that Thane was president of the mortgagee bank at the time he wrote the policies.

Under these circumstances it is contended by counsel for the defendants that, as it was neither alleged nor proved that they had notice that their agent Henry Thane was acting for the bank and its benefit in issuing the policies, they are not bound by his acts. They invoke the rule that no man can faithfully serve two masters whose interests are in conflict. In support of the rule they cite a line of cases which hold that an insurance agent, by writing a policy for the company, cannot bind it where he himself is the applicant for insurance, unless the policy be approved by the company, and also cases to the effect that an agent cannot bind his principal by issuing, without notice to his principal, a policy upon the property of a corporation in which he is an officer. See case note to Arispe Mercantile Co. v. Capital Insurance Co. of Des Moines, 9 L. R. A. (N. S.) 1084.

The facts do not bring the present case

had no interest whatever in the insured property. The property was insured for $5,000, and it is not claimed that that was an excessive amount. The property was only mortgaged to the bank for $840. The fact that the insurance agent who issued the policy was the president of the bank which held a mortgage for $840 did not prevent the agent from acting with fidelity to the insurance company, and there is no reason whatever to think that the company would have refused the risk had it known that the bank held a mortgage on the insured property.

On the other hand, the amount of the mortgage, as compared with the value of the insured property, was so small that the insurance company might, with justice, have complained had its agent permitted the business to go elsewhere. So far as the record discloses, Thane acted fairly with the insurance company and with the insurer, and did precisely what one, under those circumstances, would have done with the approval of his principal. No fraud in connection with the matter has been alleged or proved, and there are numerous decisions to the effect that the law will never presume fraud where none is shown. Such was the effect of the holding of the Supreme Court of Kan

sas in Citizens' Bank of Chautauqua et al. v. Shawnee Fire Insurance Co., 91 Kán. 18, 137 Pac. 78, 49 L. R. A. (N. S.) 972. In that case this precise question was before the court, and the court held:

"An agent of an insurance company, with power to issue policies, insured a property, on which the bank of which he was cashier held a mortgage, for about one-half the amount of loss, if any, payable to the mortgagee as its inthe insurance, attaching a clause making the terest should appear. Held that, in the absence of fraud or collusion, the company could not deny liability on account of its agent's relation to such mortgagee."

See, also, Fiske v. Royal Exchange Assurance Co., 100 Mo. App. 545, 75. S. W. 382.

Therefore we are of the opinion that Thane rightfully acted for the insurance companies, and that the policies sued on were valid.

[2] It is also contended that the judgment must be reversed because no proof of loss was filed within the time fixed by the policy, and that there was no waiver of the same by the insurance company. We think there is testimony from which the jury might have found that the proof of loss was waived. Smallwood was the adjuster of the insurance company, and was thereby vested with authority to ascertain the nature, extent, and cause of the loss, and to agree with Fuquay as to the amount that should be paid as an indemnity for the same. German Insurance Co. v. Gibson, 53 Ark. 494, 14 S. W. 672; Lord v. Des Moines Fire Insurance Co., 99. Ark. 476, 138 S. W. 1008.

[3] Smallwood and Fuquay visited the place where the house had stood. Fuquay

estimates of the cost of rebuilding the house, and that, pursuant to his direction, he employed two firms of contractors to make such estimates, and paid them for it, and that he mailed these estimates, together with his own affidavit as to the amount which the house had cost him and the date of the fire, to the adjuster. It is true the adjuster denied this, but, as we have already seen, he had the power to waive the proof of loss, and the question of whether he had done so was fairly presented to the jury under proper instructions given by the court..

[4] In the case of Bluthenthal v. Atkinson, 93 Ark. 252, 124 S. W. 510, we held that where a letter has been properly mailed, there is a presumption that it was duly received by the person to whom it was addressed, but that such presumption may be rebutted. Here Fuquay testified that he mailed the estimates to the adjuster at his proper address before the time for filing the proof of loss had expired, and, under the decision just referred to, the question of whether or not it was received by the adjuster was one of fact for the jury.

[5] It is next contended that the policy was void because the property insured was a dwelling house and the plaintiff used it as a boarding house. The testimony on this point shows that the plaintiff did not keep a public boarding house, but that he did keep private boarders from time to time as he saw fit. The keeping of a boarding house is not prohibited by the policy in express terms. There is no reference to a boarding house in the trades or businesses denominated hazardous or extrahazardous. If the insurance companies have not seen fit to classify boarding houses as exposed to greater risks than ordinary dwelling houses, they cannot ask to avoid the policy on this ground. Rafferty v. New Brunswick Fire Insurance Co., 18 N. J. Law, 480, 38 Am. Dec. 525. See, also, Birmingham Waterworks Co. v. Truss, 135 Ala. 530, 33 South. 657...

The undisputed evidence in the case before us showed that the property insured was the plaintiff's dwelling, and the fact that he sometimes kept boarders does not destroy its character as a dwelling.

ready concluded that Thane rightfully acted as agent for the insurance companies. The record shows that he made demand of the company for the amount due under the policies, and that the insurer himself made demand therefor by sending in the estimates as requested by the adjuster, and that the company absolutely refused payment of the policies.

Other assignments of error are pressed upon us for a reversal of the judgment; but, without discussing them in detail, we deem it sufficient to say that instructions embodying the principles of law above announced were given to the jury which fully and fairly submitted the respective theories of the parties.

The judgment will be affirmed.

Where, in an action in which a reformation of a bond given to secure the return of mortgaged property removed from the state by congagor testified that it was the agreement that sent was sought, certain officers of the mortthe property was to be returned within 70 days after demand, and that by mutual mistake the bond provided that it should be returned within 70 days after the date of the instrument, and that before the return of the machinery plaintiffs entered into negotiations looking to a sale of the property, while the mortgagee's admintive terms that the bond as written constituted istrator and one of the heirs testified in posithe agreement entered into and that no mistake was made in writing it and denied that they had demanded a return after the expiration of the 70 days or that they had entered into negotiations with the mortgagor's officers for the sale of the machinery, a reformation was properly denied, as the evidence was too nearly evenly balanced and was not of that clear, unequivocal, and decisive character required.

[Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. §§ 157-193; Dec. Dig. 45.]

2. REFORMATION OF INSTRUMENTS IDENCE SUFFICIENCY.

45-Ev

To justify or authorize the reformation of a written instrument for fraud or mistake, the evidence of such fraud or mistake must be clear, unequivocal, and decisive.

[Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. §§ 157-193; Dec. Dig. 45.]

3. MORTGAGES 319-PAYMENT EVIDENCE. Where, in an action on a bond given to secure the return of mortgaged machinery removed from the state by agreement, it appeared machinery executed a deed to the mortgagee's that the mortgagor after the removal of the heirs to real estate and other personal prop