judgment ineffectual, a preliminary injunction will is · sue to restrain an insolvent defendant from removing hay from the land of plaintiff's testator and feeding it to his cattle.-ROHRER V. BABCOCK, Cal., 45 Pac, Rep. 1054.

29. INJUNCTION Trespass.-The foundation of the jurisdiction in a court of equity to issue an injunction in aid of a trespass is the probability of irreparable injury, the inadequacy of pecuniary compensation, or the prevention of a multiplicity of suits. It is not enough that the injury complained of is merely nom. inal, theoretical, or is apprehended, even though an action at law might be maintained; but, to justify the interposition of this summary power of injunction of a court of equity, there must be a cause to fear substantial, serious, and irreparable damage, for which courts of law would furnish no adequate relief, and the complaint should show facts to justify this conclusion.-MCGREGOR V. SILVER KING MIN. CO., Utah, 45 Pac. Rep. 1091.

30. INSOLVENCY - Execution Liens.-Where property is in the sheriff's custody under execution levy at the time of the adjudication of insolvency of the execution debtor and the appointment of a receiver, the lien thereon of the execution creditor, and his right to compel a sale thereof in satisfaction of his judgment, are not affected by the insolvency proceeding.-WARD V. HEALY, Cal., 45 Pac. Rep. 1065.

31. INSOLVENCY Trust Fund Doctrine.-The property of an insolvent, either person or partnership, is not a trust fund, in the hands of the debtor, in favor of creditors, in the true sense of the words "trust fund." The creditors do not, merely because of such relation to the debtor, have any recognizable or enforceable lien on the property of the debtor, nor is there any trust character attaching to it which interferes with a bona fide sale of it by the debtor.-CRITES V. HART, Neb., 68 N. W. Rep. 362.

32. INSURANCE - Rescission of Contract.-No consideration is essential to the rescission of a simple executory contract (that is, one which has not been acted upon), other than a mutual agreement of the parties that it shall no longer bind either of them. The consideration on the part of each is the other's renuncia. tion.-CRUTCHFIELD V. DAILEY, Ga., 25 S. E. Rep. 526.

33. LIFE INSURANCE — Rescission.-One who has insured his life for the benefit of another cannot, after the beneficiary has acquired a vested right by the delivery of the policy, rescind the policy and recover premium paid, without tender of release from the beneficiary, even where rescission can be compelled and does not require consent of the insurer.-JURGENS V. NEW YORK LIFE INS. Co., Cal., 45 Pac. Rep. 1054.

34. MASTER AND SERVANT Fellow-servants.-As a general rule, a conductor in charge of a regular passenger or freight train, and having, as such conductor, full control of its movements, is not, while in the performance of his usual and ordinary duties with reference thereto, a fellow-servant of an engineer. fireman, or brakeman working under his orders. Under such circumstances the conductor is the vice-principal of the railroad company or of receivers operating it under the orders of a court.-SPENCER V. BROOKS, Ga., 25 S. E. Rep. 480.

35. MASTER AND SERVANT-Injury-Negligence.-The negligence of a foreman and manager, under whose direction and superintendence a steam shovel was set un and put to work, in failing to have a key put in a pin to hold it in place, which defect he knew of, or should have known of, and by reason of which a bucket fell from it onto an employee working with the shovel, is the negligence of the master.-HIGGINS v. WILLIAMS, Cal., 45 Pac. Rep. 1041.

36. MASTER AND SERVANT- Payment for Services.An agreement to pay for services rendered and accepted is presumed unless the parties are members of the same family or near relatives.-HAY V. PETERSON, Wyo., 45 Pac. Rep. 1073.

37, MINES AND MINING-For Statutory Period.-In an action to quiet title to mineral lands, where plaintiff relies on a location by a certain person, he may prove, without having averred, that such person was a citizen of the United States, or had filed a declaration of intention to become such, and was therefore competent, under Rev. St. U. S. § 2319, to make the location. -ALTOONA QUICKSILVER MIN. Co. v. INTEGRAL QUICKSILVER MIN. Co., Cal., 45 Pac. Rep. 1047.

38. MORTGAGE FORECLOSURE-Receiver of Rents and Profits. A stipulation in a mortgage that, upon the institution of foreclosure proceedings, a receiver of the rents and profits may be appointed on the application of the mortgagee, is contrary to the public policy of Oregon, as shown by the statute which provides that a mortgage of real property shall not be deemed a conveyance, so as to enable the mortgagee to recover possession without a foreclosure and sale according to law. Therefore the appointment of a receiver under such a stipulation is void.-COUPER V. SHIRLEY, U. S. C. C. of App., 75 Fed. Rep. 169.

39. MORTGAGE Power of Sale.-Although a mere recital in a power of sale, contained in a mortgage given to secure the payment of money, that such power is coupled with an interest, would not of itself make it such a power, yet where the mortgagor plainly and unequivocally stipulated in the mortgage itself that the power of sale should be irrevocable, and thus, upon a valuable consideration, made the power a part of the contract given as security for a debt, and conferred it for the purpose of effectuating that security, he was bound by the terms of this contract, and could not himself revoke the power of sale. This is true, irrespective of the question whether, in the absence of such a stipulation, the power would be irrevocable by the mortgagor while in life, or whether it would, by his death, be ipso facto revoked.-RAY V. HEMPHILL, Ga., 25 S. E. Rep. 485.

Assessment

40. NATIONAL BANKS Insolvency against Shareholders.-A holder of stock in a national bank is not entitled to offset against an assessment ordered by the comptroller upon his stock the amount of his deposits at the time the bank became insolvent. -WINGATE V. ORCHARD, U. S. C. C. of App., 75 Fed. Rep. 241.

41. NEGOTIABLE INSTRUMENTS-Notice of Protest.All persons liable as indorsers upon a note or bill of exchange, as distinguished from mere sureties by indorsement, if the paper indorsed be payable, or intended to be negotiated, at a chartered bank, are entitled to protest and notice of non-payment. A person who merely writes his name on the back of such a paper to guaranty its payment, but whose indorsement is neither essential to nor proper in the due transmission of title in the course of negotiation, is a surety only, and is not entitled to notice as an indorser.-SIBLEY V. AMERICAN EXCH. NAT. BANK, Ga., 25 S. E. Rep. 470.

42. NEGOTIABLE INSTRUMENT-Payment by Note.The giving of his promissory note for a portion of an antecedent indebtedness of the maker will not be regarded as a payment or extinguishment of such indebtedness, in the absence of an understanding to that effect by the parties to such transaction.-BRADBURY V. VAN PELT, Kan., 45 Pac. Rep. 1105.

43. OFFICERS-Lieutenant Governor-Appointment to Vacancy.-Under Const. art. 5, § 15, providing that a lieutenant governor shall be elected at the same time and place as the governor, and Const. art. 5, § 8, authorizing the governor, when a vacancy occurs in any office for the filling of which no provision is made by the constitution, to fill such vacancy by granting a commission, which shall expire at the end of the next legislature, or at the "next election by the people," one appointed by the governor to fill a vacancy in the office of lieutenant governor for the filling of a vacancy in which there is no special constitutional provision will hold office till the next gubernatorial election. PEOPLE V. BUDD, Cal., 45 Pac. Rep. 1060.

44. PARTNERSHIP-Actions at Law Between Partners. -One partner cannot sue his copartner at law to recover an amount alleged to be due from defendant by reason of partnership transactions, until a final settlement has been effected, showing the amount due; the only remedy prior to such settlement being a suit in equity for a dissolution of the firm and for an accounting.-WILLEY V. RENNER, N. M., .45 Pac. Rep.

1132.

45. PARTNERSHIP DEBT-Payment by Note.-Where a partnership composed of two persons was indebted upon an open account, and on the day the partnership was dissolved one of the partners, with the knowledge and consent of the other, mailed his individual promissory note to the creditor for the purpose of settling the account, this, of itself, would not be a payment of the account, unless the note was accepted as such by the creditor.-NORTON V. PARAGON OIL CAN Co., Ga., 25 S. E. Rep. 501.

46. PARTNERSHIP-Mortgage of Partner's Interest.In pursuance of an agreement between M and S, partners, and T, that S should sell out his interest to T, who should thereupon form with M a new firm, the sale was made, the interest of 8 in partnership real estate conveyed to T by deed describing it as an undivided half of certain land, a mortgage given thereon by T to S to secure the purchase money, and thereaf ter, on the same day, a partnership formed between M & T, the latter contributing thereto the property thus acquired: Held, that there being no fraud in the transaction, it being known by M that the property contributed by T was burdened with such mortgage, and it being recorded, it could not be treated as a mortgage of the interest of T in the new firm, so as to be deferable to an ajustment of the accounts between M and T, as partners, or to the debts of the firm of M and T, though the latter were to a large extent for money used in paying the debts of the old firm.BEECHER V. STEVENS, U. S. D. C. (Conn.), 75 Fed. Rep. 125.

47. PARTNERSHIP - Powers of Partner.-It being within the scope of legitimate business of a mercantile partnership to raise money by making and negotiating promissory notes, a member thereof has the power to exchange a promissory note of the partnership for the promissory note of another of like amount, the proceeds of which are intended for use in carrying on the partnership business.-MORRIS V. MADDOX, Ga., 25 S. E. Rep. 487.

48. PLEADING-Effect of Amendment.-Admissions in an original answer cannot be used against defendant after the filing of an amended answer omitting them. —RALPHS V. HENSLER, Cal., 45 Pac. Rep. 1062.

49. PLEADING-Motion to Require a Reply.-Usually a motion by defendant for the court to require plaintiff, under Comp. Laws, § 4918, to reply to new matter contained in the answer, should be granted, because the system of practice in use is designed to limit and define issues so far as practicable. MCKINNEY, S. Dak., 68 N. W. Rep. 333.

CORNWALL V.

50. PLEDGE OF MORTGAGE-Foreclosure.-A pledgee of mortgage notes as collateral security, under an assignment which gives him the right, on default, to realize on the same by sale, but does not restrict him to that method, may either sell them, or, under Civ. Code, § 3006, which gives a pledgee of any evidence of debt the right to realize on it only by collection, he may realize on them by foreclosing the mortgage securing them, which, incidentally with them, passed into pledge.-MCARTHUR V. MAGEE, Cal., 45 Pac. Rep. 1069.

51. REPUGNANT PROVISIONS IN CONTRACT.-Where the application provided that, în case of death by suicide, the contract should be "null and void," but the bylaws of the association, which were made a part of the contract, declared that in case of suicide "sane or insane," the certificate should be void, except that the beneficiary should be entitled to the amount paid in,

but that the board of directors might, at their option, waive this provision, and pay in full, held, that there was no such repugnancy between these provisions as to render the latter wholly nugatory, and that if both were construed to apply to a suicide while sane, the most that could be claimed for plaintiff was that the provision in the by-laws for liability for the amount paid in should prevail.-ZIMMERMAN V. MASONIC AIR ASS'N OF DAKOTA, U. S. C. C. (Neb.), 75 Fed. Rep. 23 52. RES JUDICATA. - A judgment upon the merits against the defendant, an overseer of highways, for the removal, under color of his office, of a fence situated on the plaintiff's land-the sole defense being the existence of an alleged public road at locus in quo, 18, in the absence of fraud, a bar to a subsequent proceed. ing by the successor in office of the former, in behalf of the public, to restrain the threatened obstruction of such alleged highway, in which the rights of the parties depend upon the facts put in issue in the former action.-HOLSWORTH V. O'CHANDER, Neb., 6 N. W. Rep. 334.

53. STATUTES Enactment - Constitutional Law.Where the legislative journals are silent as to the ob servance of any constitutional requirement in the passage of bills, it will not be presumed that such re quirement was disregarded.-HALE v. MCGETTIGAN, Cal., 45 Pac. Rep. 1049.

54. TELEGRAPH COMPANIES-Liability for-Nondeliv ery.-A telegraph company is liable for failure to de liver a message which it received, with the pay there for, to be delivered three miles beyond S, though the agent receiving it for transmission was mistaken in supposing the company had an office at S.-WESTERN UNION TEL. Co. v. HARGROVE, Tex., 36 S. W. Rep. 1077.

55. TENANCY IN COMMON-Recovery of Rents.-The right of a tenant in common to recover rents from his cotenant, who has excluded him from possession, is not affected by the fact that, but for the inclosure of the land by the tenant in possession, it would not have produced any rents.-STEPHENS V. TAYLOR, Tex., 368. W. Rep. 1083.

56. TROVER-Vendee of Cotenant.-While an action of trover will not, as a general rule, lie in favor of one of several tenants in common against a cotenant, for the reason that the possession of one is the possession of all, yet such an action will lie against the vendee of a cotenant who sold and delivered the entire property without the consent of the other common owners.→ KING V. NEEL, Ga., 25 S. E. Rep. 513.

57. USURY-Retention of Commission.-Although the maximum legal rate of interest was reserved upon a given loan, the mere fact that the lender's agent charged the borrower an additional sum as a comm's sion for making the loan did not render the transac tion usurious as to the lender, when he did not au thorize such charge, had no knowledge of the same. and did not share in the commission.-MCLEAN V. CAMAK, Ga., 25 S. E. Rep. 493.

58. WILL-Constructions.-Testator gave property to his wife "for the remainder of her life. Then it is to be sold, and the proceeds divided between my surviv ing brothers and sisters:" Held, that the division was to be, not among the brothers and sisters surviving at the death of testator, but at the time for distribution. -IN RE WINTER'S ESTATE, Cal., 45 Pac. Rep. 1063.

59. WILLS-Execution-Attestation.-Section 127, ch. 23, Comp. St., construed and held: (1) Not to require the words composing the name of an illiterate testato" to be written at the end of his will, either by himself. or by some person by his direction. (2) If the testa tor, being of sound mind, and with the intention of making a will, voluntarily made an X mark, cross, or other character which he intended and adopted as and for his signature, it satisfied the statute as to signing. (3) Not to require the witnesses to a will to subscribe it at the express request of the testator.THOMPSON V. THOMPSON, Neb., 68 N. W. Rep. 372.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 30, 1896.

The case of Kijek v. Goldman, recently decided by the Court of Appeals of New York, is a real novelty in the law. No precedent for its conclusion appears to have been found, and the decision therefore was the result of logical deduction from well settled principles. The point decided was that one who has been induced to enter into a marriage contract by the misrepresentations of another that the woman was virtuous and respectable, when in fact she was pregnant at the time by the party inducing the marriage, may maintain an action against him for the damages thereby sustained, and that in such a case exemplary damages may be awarded. While no precedent was found for such an action, it does not follow that there is no remedy for the wrong, because every form of action when brought for the first time must have been without a precedent to support it. Courts sometimes of necessity abandon their search for precedents, and yet sustain a recovery upon legal principles clearly applicable to the new state of facts, although there is no direct precedent for it because there has never been an occasion to make one. For instance, the action for enticing away a man's wife, now well established, was at first earnestly resisted upon the ground that no such action had ever been brought.

The question in such case as Kijek v. Goldman is not whether there is any precedent for the action, but whether the defendant inflicted such a wrong upon the plaintiff as resulted in lawful damages. As the court says, the defendant by deceit induced the plaintiff to enter into a marriage contract whereby he assumed certain obligations and became entitled to certain rights. His obligation was to support and maintain her, and the right acquired by him was the right to her services, companionship and society. By the fraudulent conduct of defendant he was not only compelled to sup

moral turpitude also, in accordance with the analogies of the law upon the subject, the jury had the right to make the damages exemplary. By thus applying well settled principles upon which somewhat similar actions are founded, this action can be sustained, because there was a wrongful act in the fraud, that was followed by lawful damages in the loss of money and services. The fact that the corruption of the plaintiff's wife was before he married her does not affect the right of action, as the wrong done to him was not by her defilement, but by the representation of the defendant that she was pure when he knew that she was impure, in order to bring about the marriage. It is difficult to see why a fraud, which, if practiced with reference to a contract relating to property merely, would support an action, should not be given the same effect when it involves a contract affecting not only property rights, but also the most sacred relation of life.

Though the right of action was thus considered as resting upon some pecuniary and tangible loss, the court went further and held that the action can be maintained upon the broader ground of loss of consortium or the right of the husband to the conjugal fellowship and society of his wife. The loss of consortium through the misconduct of a third person has long been held an actionable injury without proof of any pecuniary loss. "The damages," says the court, "are caused by the wrongful deprivation of that to which the husband or wife is entitled by virtue of the marriage contract. They rest upon the loss of a right which the marriage relation gives and of which it is an essential feature. Whether that right is wrongfully taken away after it is acquired, or the person entitled to it is wrongfully prevented from acquiring it, does not change the effect or lessen the injury. While the plaintiff has not been actually deprived of the society of his wife, he has been deprived of that which made her society of any value, the same as if she had been seduced after marriage. Although the

defendant that right never came to him. He has never enjoyed the chief benefit springing from the contract of marriage, which is the comfort, founded upon affection and respect, derived from conjugal society. If the defendant had deprived the plaintiff of his right to consortium after marriage, the law would have afforded a remedy by the award of damages. Yet, the plaintiff, through the fault of the defendant, has suffered a loss of the same nature and to the same extent, except that instead of losing what he once had, he has been prevented from getting it when he was entitled to it. This is a difference in form only and is without substantial foundation. The injury, although effected by fraud before marriage instead of by seduction after marriage, was the same, and why should not the remedy be the same?"

NOTES OF RECENT DECISIONS.

DEVISE-FIXTURES-TAPESTRY ON WALLS. -A recent English case, Norton v. Dashwood, 2 Chan. 497, holds that tapestry which had been cut and pieced so as to cover the walls of a room and the space left by the doors and mantelpiece, and was hung by being nailed to wooden buttons let into the plaster and nailed to the brickwork, passed as a fixture under a devise of the mansion house. This decision was based upon D'Eyncourt v. Gregory, 3 L. R. Eq. 382 (1866), where a testator, who was tenant for life of settled estates, on which he had erected, fitted up, and furnished a mansion house (an old one having fallen into decay), bequeathed all the tapestry, marbles, statues, pictures with their frames and glasses, which should be in or about the house at the time of his death, and of which he had power to dispose, to be enjoyed as heir-looms by the person who, under the limitations in his will, would be entitled to his own estates thereby devised in strict settlement, being the same as those entitled to the settled estates, subject to a condition, with a shifting clause in case the condition was not fulfilled. After the testator's death, A became tenant for life of both the settled and devised estates, and on his death the settled estates devolved on B; but, as the condition was not fulfilled, C became entitled to the devised estate, and to

the heir-looms under the shifting clause in the testator's will. The question arose, as between B and C, which of the articles passed under the will; and it was held, that tapestry, pictures in frames, frames filled with satin, and attached to the walls, and also statues, figures, vases and stone garden seats, purchased and set in place by the testator, which were essentially part of the house, or of the architectural design of the building or grounds, however fastened, were fixtures, and could not be removed; but that glasses and pictures not in panels, not being part of the building, and articles purchased by the testator, but fixed in place by A after his death, were not fixtures, and passed to C, under the will.

PROCESS SUMMONS ERROR IN NAME.— One of the points decided by the Supreme Court of Minnesota in Bradley v. Sandilands, 68 N. W. Rep. 321, is that a judgment by default against the defendants in an action is valid, notwithstanding a mistake in the summons in the Christian name of one of the plaintiffs. The court says:

It is unquestioned that the Elys made the note upon which the action was brought; that there was no, fraud, mistake, or want of consideration in the making of the note; and that it had never been paid. It clearly appears that Arthur Farrar and Samuel H. Wheeler actually owned the note at the time when the complaint was filed, and that, as such owners, they were the real parties plaintiff in the action. And it also clearly appears that the summons was personally served upon both of the defendants Ely. Neither of them appeared in the action, nor in any manner suggested that there was a misnomer in the summons or complaint, or in any proceedings on the part of the plaintiffs. It is expressly found by the trial court that there was such a person as Arthur Farrar, and that he and Samuel H. Wheeler purchased the note of Oscar Farrar prior to the commencement of this action. There is no dispute as to the name of the other plaintiff being given truly, viz: Samuel H. Wheeler. The Elys permitted the judg ment to be taken against them more than 25 years ago, and the defendant holds title derived from the purchaser at the execution sale, having purchased in good faith, for a valuable consideration. Upon all these facts appearing, can it be said that the judg ment was a nullity? We cannot so regard it. The cases where there is a defect in the name of the defendant in the summons or notice have but little, if any, application to the one at bar. The proper par ties defendant having been designated in the sum mons and complaint, and the complaint correctly entitled in the name of the real parties in interest, the misnomer in the summons, of the Christian name of one of the plaintiffs, while the others were given correctly, and all parties were the identical and real parties in interest, would not render a judgment entered in such proceeding, in the true name of all the parties to the action, a nullity. A summons and

complaint such as appear in this case offered the defendants an opportunity to appear and make a defense before judgment; and, if they declined to do so, a judgment in favor of the plaintiffs necessarily established their right to the relief given, as against the defendants who were actually served. Such a judg ment would bar Arthur Farrar and Samuel H. Wheeler, as the real parties in interest, from recovering another judgment upon the cause of action stated in this complaint, although the summons was entitled "Oscar Farrar and Samuel N. Wheeler, plaintiff." Freem. Judgm. § 175; McGaughey v. Woods, 106 Ind. 380, 7 N. E. Rep. 7. The plaintiffs would be bound by such a judgment, because they, as the identical and real persons in interest, voluntarily prosecuted such a proceeding to a final judgment; and the defendants would be bound thereby, because they suffered the judgment to go against them upon notice of such demand, and who was claiming the real interest therein. It seems like trifling with judicial proceedings to remain silent for so many years, with such knowledge, and then seek, upon such a flimsy pretext, to nullify a meritorious judgment thus rendered. Van Fleet, in his work upon Collateral Attack (section 367), says: "In respect to the name of the plaintiff, it does not seem to me that any mistake in that renders the judgment void. If the creditor's real name is John Smith, and he bring suit in the name of George Jones, the defendant has the opportunity to contest and correct that matter, if he cares to do so. And if the person who sues is a stranger, to whom he owes nothing, he has an opportunity to show those facts." Certainly the misnomer of the Christian name of one of the plaintiffs did not affect or change the cause of action against the defendants, and a correction of this name would have left the same cause of action, and the real parties in interest as plainiiffs. The whole record shows that the writing of the word "Oscar" for "Arthur" was a mere clerical error or misnomer, which, upon application to the court, would have been amended; and the omission to do so did not af fect the jurisdiction of the court to render judgment binding upon the defendants. See McGaughey v. Woods, 106 Ind. 380, 7 N. E. Rep. 7; Cain v. Rockwell, 132 Mass. 193. We do not attach any importance to the fact that the name of one of the plaintiffs in the title of the action in the judgment attached to the judgment roll was originally written "Oscar Farrar," and that the same was at some time changed to "Arthur Farrar." It does not appear when, or who made the change. It might have been changed before the judgment roll was finally completed, and, in the absence of any evidence upon the question, such would doubtless be the presumption; and thus the judgment would be valid on its face, under the view we take of the law.

CHANGE OF TITLE.-In Dodge v. Bremen Fire Ins. Co., 46 Pac. Rep. 25, decided by the Court of Appeals of Kansas, it was held when a loss of insured property occurs according to the terms of the policy, and the insurance policy has attached to it a subrogation contract which stipulates that the loss, if any, is payable to a mortgagee, or his assigns, as his interest may appear, the owner of the mortgage is the insured, to the extent

of his interest, and a change of title which increases his interest in the insured property even to absolute ownership, will not release. the insurance company from its liability to pay the loss, and that a change in the title of insured property, which increases the interest of the insured from a lienholder to absolute ownership, is not such a change of ownership as requires notice to be given to the insurance company, under the terms of a subrogation contract which stipulates that the mortgagee shall notify the insurance company of any change of ownership. The following is from the opinion of the court:

The real question in this case is, should the plaintiff recover, upon the agreed statement of facts and the pleadings? In Insurance Co. v. Coverdale, 48 Kan. 446, 29 Pac. Rep. 682, it was decided that the mort. gagor could not maintain an action upon a policy of insurance which contained a similar subrogation contract, unless the mortgage was paid, but that the mortgagee only could maintain the action, unless he authorized the owner so to do. By the subrogation contract, the insurance company entered into a contract with the mortgage company, or its assigns, by the terms of which the amount of the policy, in case of loss, is to be paid to it, so far as its interest shall appear. It therefore follows that, so far as his interest appears, John L. Dodge is the assured. The subrogation contract must be construed the same as though it read, "Loss, if any, under this policy, payable to John L. Dodge, mortgagee, as his interest may appear." The policy is to run five years, and the premium for the full time has been paid. No one can collect the money, in case of loss, but Dodge. The insurance company takes the risk, and collects the full premium, knowing that, while Mrs. Cowley holds the fee title, Dodge holds a lien upon the property, which may in time be transferred into a title. It must have anticipated that Dodge was likely to take steps to foreclose the lien which was insured. When an insurance company insures a mortgage lien, it must anticipate that upon default the lienholder will begin foreclosure proceedings, obtain judgment and secure a sale of the mortgaged property. There can be no question but that the mortgagee is protected by the terms of the contract with the insurance company until the sale is confirmed, and the money or dered by the court to be paid to the mortgagee. Is the purchaser also protected by the terms of the contract, and does it make any difference whether the mortgagee or a stranger is the purchaser? If a stranger is the purchaser, there is a change of ownership. If the mortgagee is the purchaser, his interest is changed from a lienholder to an owner in fee. Counsel for defendant in error contends that the interest of John L. Dodge, mortgagee, was insured, and not the interest of John L. Dodge, owner, and that, in order to have held the insurance in force, Dodge should have notified the company of the change of the fee title, and obtained the consent of the company to the change. They argue that the company might have been willing to have insured the property if Mrs. Cowley was the owner, but not if Dodge was the owner. The property was occupied by a tenant as a dwelling when it was insured, and when it burned. It cannot be said that the hazard was increased by the