JANE JOHNSON, Plff. in Err., v.

NEW YORK LIFE INSURANCE COM¬ PANY.

(See S. C. Reporter’s ed. 491-496.)

Error to state court — Federal question — when raised in time — full faith and cred¬ it.

and credit to a statute of another state is not raised in time to bring the case within the appellate jurisdiction of the Supreme Court of the United States, where it first ap-

Note. — On writs of error from United, States Supreme Court to state courts — see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267 ; Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998 ; and Re Buchanan, 39 L. ed. U. S.

ty, as were inhabited and cultivated under the Spanish government, ought to be confirmed. (Signed) William Crawford,

Commissioner.

(Page 400.)

No. 9.

Report on the conflicting claims of Joseph Mc- Candless and Regis Bernody, both of whom claim the same tract of land, and in relation to whose claims the former commissioner re¬ ported favorably.

Former Commis.’s Report.

No. of report, 10.

No. of claim, 11.

By whom claimed, Regis Bernody.

Original claimant, Joseph S. Murona.

Nature of claim and from what authority derived, spa. pert, or cert, from commandant ; grant lost by time or accident.

Date of claim, 3 March, 1792.

Quantity claimed, area in arpens, 600. Where situated, Mobile river.

By whom issued, Carondelet.

Surveyed, no survey.

Cultivation and Inhabitation, from 1809 to

#•••••

Report 10, claim 11. — The claim of Regis Bernody Is founded on a conveyance made to him by Joseph Gaspar Munora, at Pensacola, which passed through the office of the com¬ mandant, as all authentic conveyances must 187 U. S. U. S., Book 47.

pears in the petition for a writ of error from that court to the state court.

construes a statute of another state as inap¬ plicable to the case before it, and does not deny the validity of such statute, is not re- viewable in the Supreme Court of the United States as a decision denying full faith and credit to such statute.

[No. 87.]

Argued and Submitted November 12, 1902. Decided January 5, 1903.

IN ERROR to the Supreme Court of the State of Iowa to review a judgment which affirmed a judgment of the trial court in favor of defendant in an action on a pol¬ icy of life insurance. Dismissed.

See same case below, 109 Iowa, 708, 50 L.

R. A. 99, 78 N. W. 905.

Statement by Mr. Justice Brown:

*This was an action upon a policy of in-

surance upon the life of Frank C. Johnson, dated December 27, 1890, whereby the de¬ fendant insured his life in the sum of $25,- 000 for the benefit of liis executors, adminis¬ trators, or assigns. This policy was as¬ signed to the plaintiff in 1895, and on Sep¬ tember 28, 1896, Johnson died. The annual premium was fixed at $1,060, payable in ad¬ vance on November 11 of each year. There was the usual provision for forfeiture in case of nonpayment of premiums. The pre¬ mium was paid on November 11, 1892, but no payments were made thereafter. After Johnson’s death, and on February 20, 1897, plaintiff tendered the past-due premiums with interest thereon, which defendant re¬ fused to accept, and this action was begun.

The insurance company was incorporated under the laws of the state of New York,

have done in the Spanish posts of the intend¬

ancy, and recognizes the original grant or con¬ cession of the same made by the Baron de Car¬ ondelet in favor of said Munora on the 3d March, 1792, which grant was produced by Munora on the day of the execution of the con¬ veyance to Bernody. The proof of the inhabi¬ tation and cultivation by Bernody (until forci¬ bly expelled by McCandless) is complete, and the inference is strong that Munora, the grantee, did comply with the essential condi¬ tions of the grant, inasmuch as the instruc¬ tions of Morales expressly charge the “notaries and commandants not to pass any conveyance of lands where the conditions of the grant were not previously proven to have been com¬ plied with ; and, independently of this consid¬ eration, the declaration of Munora, in the con¬ veyance to Bernody, that It was ‘the same land that Antonio Espejo worked with his permis¬ sion,’ made, too, at a time when it could not be imagined that any rival claim would arise, furnishes a violent presumption that the land was inhabited or cultivated by or for Munora agreeably to the Spanish regulations. A full report of all the evidence presented by the con¬ flicting claimants is herewith presented. Upon the best view we have been able to take of the relative merits of these claims, we are decided¬ ly of opinion that the claim of Joseph Mc¬ Candless ought to be rejected, and that of Regis Bernody confirmed.’’

W. Barton, Register.

18 273

492-495

Supreme Court of the United States.

Oct. Term,

the policy was issued in that state, and the application contained an agreement that the contract contained in such policy and in the application should be construed according to the laws of the state of New York,— the place of said contract being agreed to be the home office of the company in the city of New York.

Plaintiff, in reply to the defense of non¬ payment of premiums, relied upon the stat¬ ute of 1877 of the state of New York, which we have heretofore had occasion to consider in several cases, and which provided that [chap. 321] “no life insurance company doing busi¬ ness in the state of New York shall have pow¬ er to declare forfeited or lapsed any policy hereafter issued or renewed, by reason of nonpayment of any annual premium or in¬ terest, or any portion thereof,” except upon a written notice to the insured stating the amount of the premium due on the policy,

the *place where it should be paid, and the person to whom the same was payable, with the further proviso that “no such policy shall in any case be forfeited ... or lapsed, until the expiration of thirty days after the mailing of such notice.”

There was, however, in the state of New York another statute, commonly known as the net reserve law, giving to holders of life insurance which had been in force three full years the benefit of the net reserve on their lapsed or forfeited policies, by extending the life of the policy beyond the time of the de fault.

The policy in question contained a stipu¬ lation that “if this policy shall lapse, or be¬ come forfeited for the nonpayment of any premium, after there have been paid thereon three full premiums, ... a paid-up policy will be issued, on demand made, with¬ in six months after such lapse with surren¬ der of this policy, under the same conditions as this policy, except as to payment of pre¬ miums . . . for such an amount as the

net reserve on this policy at the time of lapse, computed by the American table of mortality, and interest at 4\ per cent, after deducting all indebtedness to the company, will purchase as a single premium, at the present published rates of the company, at the age of the insured, at the time of lapse ”

On December 10, 1892, about two years after the policy was issued, Johnson re¬ quested the defendant, in writing, to extend to his policy “the benefits of its accumula¬ tion policy.” In reply, the company issued a policy or certificate, extending to his pol¬ icy the benefits of the accumulation policy plan, and providing that “after this policy shall have been in force three full years, in case of nonpayment of any premium subse¬ quently due, and upon the payment within thirty days thereafter to the company of any indebtedness to the company on account of this policy: 1, the insurance will be ex¬ tended for the face amount, as provided in the table below; or, 2, on demand made within six months after such nonpayment of such premium dues with surrender of this policy, paid-up insurance will be issued for the reduced amount provided in said table; or, 3, the policy will be reinstated within the 274

said six months upon payment of the over¬ due premium, with interest at the rate of *5

per cent per annum, if th6 insured is shown to the company to be in good health, by a letter from a physician in good standing.”

By the “table” above mentioned it was pro¬ vided that if the premiums were paid to No¬ vember 11, 1893, the insurance would be ex¬ tended to May 11, 1890.

In this connection, the company insisted that the thirty days’ notice law of New York had no application to the contract in¬ volved, because the policy sued upon was, at the request of the assured, converted into a paid-up policy for a fixed term, which term expired before the assured died.

Construing the certificate which extended to the original policy the benefits of the ac¬ cumulation policy plan of the company, the supreme court held “that the clause of the original policy providing for its forfeiture for the nonpayment of premiums was so far modified and changed that upon such fail¬ ure the policy became a paid-up contract for the amount of the original insurance for a certain and definite time. On demand of the assured within a fixed period after de¬ fault, he was given certain other options; but in default of such demand the term in¬ surance, as stated, took effect. No such de¬ mand was made by Johnson. There was no forfeiture of Johnson’s life contract, as ap¬ pellee insists. By the terms of the agree¬ ment which he made, his life contract, upon his default in the payment of the premium due November 11, 1S93, “became transmuted into a paid up policy for a term ending May 11, 1890. . . . The benefits of that stat¬

ute” (for thirty days’ notice) “were given only to policies which had lapsed or been forfeited for nonpayment of premium, debt or interest; and the notice had to be given, to effect this forfeiture or fix such lapse.

Afer the default the life contract continued in force until it was determined according to the statute. ... In the case at bar, under the modified contract, immediately on default in payment of the premium of 1S93, the policy became a paid-up contract for a term ; and, if the assured had died within such term, plaintiff could recover without payment of the defaulted premiums. Here the life contract did not run beyond the de¬ fault day. No act of the company was nec¬ essary to put the term insurance in force.

It went into effect by reason of the contract.

. . . “Adopting an illustration of the

learned trial judge, if Johnson had died on May 10, 1896, plaintiff could have recovered the full face of this policy without any fur¬ ther payment being required of her. . . .

The notice is required only when it is sought to declare the contract forfeited or lapsed.

Our conclusion is that this was a policy for a term that expired before Johnson’s death, and therefore plaintiff has no right of recov¬ ery.” 109 Iowa, 708, 50 L. R. A. 99, 78 N.

W. 905.

Mr. Constantine J. Smyth submitted the cause for plaintiff in error :

A right or immunity set up or claimed under the Constitution or laws of the United

187 TJ. S.

Downs v. United States.

495, 496

States may be denied as well by evading a direct decision thereon as by positive action.

Des Moines Nav. d R. Go. v. Iowa Home¬ stead Co. 123 U. S. 555, 31 L. ed. 203, 8 Sup. Ct. Rep. 217; Chapman v. Goodnow, 123 U. S. 548, sub nom. Chapman v. Crane , 31 L. ed. 238, 8 Sup. Ct. Rep. 211.

Where a foreign statute has been given an explicit interpretation and construction by the courts of the state from whence it came, and such construction is pleaded and proved, then, whether or not the state court gave the foreign statute that faith and credit which it was thus shown to have in the courts of the state from whence it came pre¬ sents a Federal question for review here.

Mr. James H. McIntosh argued the cause, and, with Mr. George W. Hubbell, filed a brief for defendant in error:

This court does not acquire jurisdiction on writ of error to the highest court of a state, for the purpose of passing upon the ques¬ tion as to whether or not the state court correctly construed the laws of another state.

Cook County v. Calumet d C. Canal d Dock Co. 138 U. S. 635, 34 L. ed. 1110, 11 Sup. Ct. Rep. 435 ; Glenn v. Garth, 147 U. S. 360, 37 L. ed. 203, 13 Sup. Ct. Rep. 350; Lloyd v. Matthews, 155 U. S. 222, 39 L. ed. 128, 15 Sup. Ct. Rep. 70; Banholzer v. New York L. Ins. Co. 178 U. S. 402, 44 L. ed. 1124, 20 Sup. Ct. Rep. 972; Yazoo d M. Val¬ ley R. Co. v. Adams, 180 U. S. 41, 45 L. ed. 4 i5, 21 Sup. Ct. Rep. 256.

Messrs. George W. Hubbell, James H. McIntosh, and Frederic D. McKenney filed a brief for defendant in error on the merits.

Mr. Justice Brown delivered the opinion of the court:

This case must be dismissed for two rea¬ sons.

fact that full faith and credit was not given to the law of the state of New York requir¬ ing a notice of thirty days before the for¬ feiture of any insurance policy, which was pleaded in the case. This, however, is a title, right, privilege, or immunity claimed under the Constitution of the United States, within the 3d clause of Rev. Stat. § 709 [U. S. Comp. Stat. 1901, p. 575], which must be “specially set up and claimed” by the party seeking to take advantage of it. Conceding that it was unnecessary to set it up in any pleading anterior to the trial, since it could not be claimed that the right had been de¬ nied to her until the trial took place, it was clearly her duty to make the claim either on the motion for a new trial, or in the assign¬ ments of error filed in the supreme court of the state. In neither does it appear, nor is there any allusion to it in the opinion of the supreme court. It first appears in the peti¬ tion for a writ of error from this court. This is clearly insufficient.

to give due faith and credit to the notice

law- of New York, since it was fully Con¬ sidered, and the decision of the state courts of New York were called to its attention and cited in its opinion. The court held that 187 V. S.

notice is required by that statute only as a basis for declaring a forfeiture or lapse of a policy for nonpayment of premium or in¬ terest, and that the law had no application, because it was a non forfeitable policy of term insurance, which .had expired by limi¬ tation before the insured died. Whether the supreme court of Iowa was correct in its construction of the applicability of the New York notice statute to this policy was immaterial, since it did not deny the full faith and credit due to the New York law, but construed it as not applying to the pol¬ icy in this case. The case is covered by that of Banholzer v. New York L. Ins. Co. 178 U. S. 402, 44 L. ed. 1124, 20 Sup. Ct. Rep. 972, and in principle by Glenn v. Garth, 147 U. S. 360, 37 L. ed. 203, 13 Sup. Ct.. Rep. 350; Lloyd v. Matthews, 155 U. S. 222, 39 L. ed. 128, 15 Sup. Ct. Rep. 70. To hold other¬ wise would render it possible to bring to this court every case wherein the defeated party claimed that the statute of another state had been construed to his detriment.

The validity of the New York statute was not called in question. The case turned upon its construction. This was not a Federal question. Commercial Bank v. Bucking¬ ham, 5 How. 317, 12 L. ed. 169; Baltimore dy P. It. Co. v. Hopkins, 130 U. S. 210, 32 L. ed. 908, 9 Sup. Ct. Rep. 503.

The writ of error is dismissed.

Mr. Justice White and Mr. Justice Mc¬ Kenna dissented.