206
FEDERAL' 'lUllPORTEB' ·. vol. :53.
that in ·1887the.y became l of their t uncle's: alleged' frau,d.; and yet: they. waited until November 1, 1892,.a;ipemod of five years andupwillrds,JPerbaps, before'1Jhis bill was filed. When the original deedwaB':clliJeovered it furnished the e'Vidence of its registration. Diligence: :w(JUld have plainly: indicated that the registration books in ChaWt'ntlogabe examined to show how. the title appeared Tho deed of Pressly-tO Whitley would have at once. been discovered., and the refl.ectITo:n of complainants,. which they say produced investiga· tion", was 'unnecessary. Their; want of diligence in this is a circumstance wei may:look to for what preceded. It is apparent that the statum oflim!imtions, according to complainants' own theory, began to run in 18441, and continued to run until the death of Fuller, two years. '. His children were' mi:rwrs and had three years after arrivinj:{ at their majority to bring suit. Suppose that they were fraudulently kept in ignorance of theirrigh.ts until 1887. 'l'hey would have three years from time to bring suit before ,the bar of the statute would haYe been completl3: . But they waited for more than five years. But suppose everYthing up to 1887 was as complainants imdst; It was a want of diligence on then'>! part, in such a claim, to wait for five years and more ,to assert theiJlclaim. It seems clear that compUl.inants have been ,guilty of such laches that 'they cannot recover,and that they are.barred., also, by the statuhlof'limitations, and that these facts appear on the face of the bUt The demurrers andmotiona to dismiss ,will be sustained, and the' bill :dismissed. 1
FULLER
et'at v. MONTAGUE et oJ.
(Circuit Court, So D.Tennessee,' Eo D. December 14, 1892.)
1 ACTION ,IN FORMA OA'I'H. Where Jl. suit prosectIted :In forma pauperis luis been dismissed on demurrer to' the bill, defendant cannot, pending an application for the allowance of an appeal, susts!1l11.p1otion to dismiss the case because the oath for ,leave to prosecute lnfOXXlla pauperis was defective both in form and substnJUle. , ' , " ·, . ' , .
2. SAME,-ApPltALs":"ApPlui'
Act July 20, 1892; 'providing that any citizen entitled to bring any suit in the' federal courtll· may "commence and prosecute to conclusion" such suit 'wltllout or costs, 01' giving security therefor, embraces t1).e right to appeal qircuit court of appeals; and, when the proper oath bils been filed, no appeal bond cali be. required.
In Equity. Bill by John P. Fuller and others, heirs at law of Simeon FUller, Jr., against'T. H. Montague and others to establish an interest in lands, and to haYe the same partitioned. The bill was heretofore dismissedori:idemurrer. See 53 Fed. Rep. 204, where a full statement of the, Mse' will be found Plaintiffs having prayed an appeal' to the circuit of appeals, defendants now move to dismiSs the case becaUile'the cause of action is frivolous, and because the oath in forma pauperis; under which they brought the suit, is i l1sttftieient. Motion denied, and appeal allowed on the filing of ther' affidavits.
v.
MONTAGUE.
207
Wells & Body, for complainants. Wheeler & McDermott, Eakin & Dickey, W. G. M. Thomas, and W. H. De Witt, for defendants. KEY, District Judge. In this case defendants move to dismiss the cause. (1) Because the alleged cause of action is frivolous,. and, for the same reason, that the court refuse to allow complainants to further prosecute the suit, by appeal or otherwise, under the oath in forma pauperis. (2) Because the statement under oath, in writing, heretofore filed by complainants, is insufficient to support a right to sue or prosecute a suit as poor persons. Before this motion was made, complainants prayed an appeal to the circuit court of appeals from the decree rendered against them in this cause, dismissing their bill upon filing the oath prescribed for poor persons. Although the oath under which the suit was instituted is not such, in substance or in form, as the statute requires, yet no objection was interposed upon that account until since the suit was dismissed upon the heAring of the ·demurrer filed therein. So that there is nothing in this court to dilfl:tniss, and this branch of the motion comes too late.. :Nor does the suit appear to be frivolous or malicious. Acts Congo July 20, 1892, c. 209, § 1, (page 252, U. S. 8t. 1891-92,) is as follows: "That any citizen of the .Unltfd States entit1('d to commence any suit or action in any court of the United States may commence and prosecute to conclusion any sUch suit or action without being required to prepay fees or costs, or giving security therefor, before or after bringing llUit 1)1.' 1Lction, upon. filing in said couft a stuternent under oath, in that because of his poverty he is unable to pay the costs of said suit or action which he Is about to (JOmmence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or actioD; and setting forth briefly the nature of his alleged cause of action. Sec. 2. '.l'hat after any such suit 01' action shall have been brought, or that is now pending, the plaintiff lllay answer and avoid a demand for fees, or security for the costs, by filing a like affidavit."
He may commence his action and prosecute it to a conclusion by filing the affidavit required, or, if his suit or action has been com· menced or is pending, he may avoid costs or security therefor by making the affidavit. The plaintiff can hardly be said "to prosecute his suit to a conclusion" unless he be allowed to take it by appeal to the court of appeals. I think a just interpretation of the terms of the act gives the right to the complainants to take their case to the circuit court of appeals upon their filing the affidavit required by the statute. Only such of the complainants as file the affidavit will be allowed to appeal under the provisions of the act. Another per· son cannot make the affidavit for him. The complainants having :filed their petition for appeal, and along with it their assignment of errors, the appeal will be granted, upon the timely filing of the affior execution of the usual bond for costs.
20$
REPORTER I
vol. 53.
WEINFELD v. MUTUAL RESERVE FUND LIFE ASS'N. (Circuit Court, E. D. Tennessee,' S. D. December 3, 1.892.) L1lI'E INSURANCE-CONDITION OF POLICy-'-WHEN BECOMES BINDING.
An applicant for in a mutnal life compally paid the admission fee, and took a receipt thE'refor, which expressly provided that the policy should not go into effect until the application had been accepted and approved. The warranty paragraph in the application provided that the poli(Jyshould not be in force until the actual payment to and acceptance qf ,t4e annual duel\, and the actual delivery of the policY· to the applicant. was not accepted, nOr were the annual dues paid. Hel.d. that no binding contract was created.
InEquity. Bill by Rosa against the Mutual Reserve Fund Life Association. Dismissed. .& Barton, for complajnani ll4c;lpmond, Chambers & Head, fox: defendant. Judge. On the 20thQt Weinfeld .made application fpr, insurance :With the defendant iIl the sum of $3,OO@,for the benefit of his wife, Rosi Weinfeld. He Paid $15 as an admission fee. No policy ever issued,' and he died March 12, 1890, in an in,sane asylum, and the bill is. filed to recover the insurance. Complainant insists tJ;lat by the terms of the receipt for the admission fee the contract formsurance was complete, and was in force, until thee0tnpany should notify the assured that the application had been,;l,'ejected; .and it is insisted that no such notice was given. I do not believe that the Position of complainant's can "be maintained suecessfullyunder this record. The receipt is as follows: "Received of John Weinfeld. of Chattanoog'R, Tennessee, fifteen dollars for the admissioJl fee upon an application to the MutUal Reserve Fund Life Assa('.lation, for a policy of insUrance for $3,000.00, subject to its provisions and constitution or by-laws,. rules, and regulations of the association. It is herHby expressly understood and agreed tbllt, if the application be not approved and accepted by till' officers at the home office of the' association, in the city of New York, it Shall be held that no benefits have eyer been created or acquired under tWs receipt, and the amount paid hereon will be refunded by me on return of this receipt." .
Certainly, language could hardly be used which would more clearly stipulate that the insurance should not go into effect until the application had been accepted and approved by the home office. This receipt refers to the provisions of the application as being a part of the contract, andlet us see what these are. In the warranty paragraph of the application it is stipulated thus: "And ilie applicant further agrees that under no circumstances shall the certificate· 011 policy hereby applied for be in force until the actual· payment to, and acceptance of the' aunual dues ;by,," ·tile associatiqn, and actual delivery of the certificate or policy to the applicant, with a receipt for the payrnent of the first annual dues, signed by the presillent, secretary, or treasurer of the association, during the lifetime and good health of the applicant."
The applieation shows that $3 annually on each $1,000, payable in advance, is to be paid as annual dues, and, in the warranty paragraph referred to, the applicant agrees "to pay dues annually, in advance, at