covenant was inserted, and that the equitable relief awarded in the circuit court is not available because of the habitual disregard of the covenant by the defendant in error and others owning lots which are subject to it. The finding of the circuit court being general, we must take the facts to be as favorable to the prevailing party as any view of the evidence would warrant. Most of the violations of the covenant are upon portions of the street remote from the premises of Caskey, and some of them are upon the opposite side of the street. There appears to be neither reason nor authority for the conclusion that the plaintiff's submission to such encroachments upon the space devoted to light, air, and view as did not substantially affect his enjoyment of his own property should operate as a waiver of his right to object to other encroachments by which such enjoyment would be materially impaired. The more definite proposition of the plaintiff in error is that his adversary should not have prevailed because of his own violation of the covenant. The facts in that regard are that Caskey and others, having built their residences upon their prescribed line 50 feet from the street line, subsequently and by common consent built in front of their residences, and within the space reserved for light, air, and view, narrow porches; that of Caskey being between 5 and 6 feet in width. These porches are not otherwise described, nor is it shown that they offer any obstruction to the easements of neighboring proprietors for light, air, and view. The purpose for which the covenant was made is not left to conjecture. It is defined by its terms to be "increasing the beauty of said avenue, and enhancing the value of lots along the same for the purpose of private residence." It is not shown by any evidence, nor can it be inferred from anything which appears in the case, that the porch is to any extent whatever subversive of that purpose. As Caskey had not, in any substantial way, violated the covenant by which both of the parties were affected, he was entitled to the aid of equity to prevent its substantial violation by the plaintiff in error. This conclusion is in ac cordance with the decided cases which relate to the subject. Western v. Macdermott, 2 Ch. App. 72; Peck v. Conway, 119 Mass. 546; Tobey v. Moore, 130 Mass. 448; Lattimer v. Livermore, 72 N. Y. 174. Judgment affirmed.

(62 Ohio St. 401)

ROBINSON et al. v. WILLIAMS et al. SAME v. LOVEGROVE et al. (Supreme Court of Ohio. April 10, 1900.) MORTGAGE FORECLOSURE COURTS JURISDICTION-ASSIGNMENT OF MORTGAGOR FOR CREDITORS-EFFECT.

1. The court of common pleas has jurisdiction in the foreclosure of a mortgage, notwithstanding a previous assignment of the mortgagor for the benefit of creditors, in all cases where the remedy in the probate court is inadequate.

And this is so where the assignment does not include all the property covered by the mortgage; or, as in this case, the mortgagor, after making the mortgage, has platted the land into lots and streets, and made of it an addition to a city, without the assent of the mortgagee, and disposed of some of the lots.

2. Where a suit to foreclose a mortgage is rightly commenced in the common pleas pending an assignment in the probate court made by the mortgagor, the subsequent commencement in the same court of a suit by the assignee for the purpose of obtaining an order to sell the land as assigned property cannot be sustained against the objection of the mortgagee.

(Syllabus by the Court.)

Error to circuit court, Franklin county.

Actions by Aaron Robinson and others against David E. Williams and others and against Lovegrove and others. Judgment for plaintiffs was affirmed in the circuit court, and defendants bring error. Affirmed.

Arnold, Morton & Irvine, Robinson & Woodburn, and Robert W. McCoy, for plaintiffs in error. B. Woodbury, for defendants

in error.

MINSHALL, J. These two cases are so connected that the disposition of one necessarily disposes of the other, as will hereafter appear. In Robinson et al. v. Williams et al. the original suit was commenced January 28, 1897, in the common pleas of Franklin county, by Williams against De Witt C. Postle, assignee, and others, to foreclose a mortgage on the property described in the petition, and to enjoin its sale by the assignee under an order made by the probate court of the county in the matter of the assignment of Lewis F. Postle that had been made in Union county, the residence of the assignor, August 15, 1895. The mortgage had been made January 12, 1891, by Lovegrove and wife, then owners of the land, to one Keim, to secure a note of $2,000 and interest, and by him assigned for a valuable consideration to Williams. The principal and part of the interest was due at the commencement of the suit. No question is made as to the validity of the mortgage, or as to the priority of its lien on

the land. After the execution of the mortgage, the mortgagors, Lovegrove and wife, on August 17, 1894, sold and conveyed the land to Lewis F. Postle, who assumed the mortgage, and shortly afterwards platted the land into lots and streets, and made of it two additions to the city of Columbus. In the second addition a one-fourth of an acre was reserved. The land embraced in the streets amounted to some three acres. He was unable to sell any of the lots, except two, became embarrassed, and made an assignment to De Witt C. Postle. He (the assignor) being at the time a resident of Union county, the assignee filed the same in the probate court of that county on August 15, 1895, and on the same day filed a duplicate thereof in the probate court of Franklin county. Postle, assignee, obtained an order from the probate court of Franklin county, and was about to

sell the land as assignee, when this suit was commenced by Williams. It may be observed that this order was of no avail, as the probate court of Franklin county had no jurisdiction of the matter of the assignment. For the purpose of obtaining an injunction, the plaintiff averred, in addition to the fact that the assignment did not and could not include all the property covered by the mortgage, that the property is ordered and advertised to be sold in lots as platted; that there is now no market for the premises as subdivided into lots, and that, as platted, the lots are not desirable, having but a short frontage on High street; that two years have elapsed since the additions were made, and only two of the lots had been sold, having been conveyed back to the Lovegroves in part payment of the purchase money, but that, if they are offered for sale under the mortgage as an entirety, there will be a much better chance to find a purchaser; and that great and irreparable injury will be done him by a sale by the assignee under the circumstances. An injunction was allowed as prayed for. Afterwards,

on May 8, 1897, Postle, assignee, having been removed, and Robinson and McCoy appointed trustees, the latter entered their appearance to the action, and moved to dissolve the injunction on the ground that the court, had no jurisdiction. This motion was overruled. They afterwards, on July 7, 1897, filed an answer averring that the court had no jurisdiction; and that on May 5, 1897, they had commenced an action in this court, the Franklin county common pleas, asking for an order of sale of the land by themselves as trustees, and prayed that the action of the plaintiff be dismissed. A demurrer to this answer was sustained. The trustees excepted, and, not desiring to plead further, the court ascertained the amount due the plaintiff on his mortgage, and made the usual order of sale to be executed by the sheriff, and requiring him to report his proceedings to the court for its further order. On error to the circuit court this judgment was affirmed, and error is prosecuted here to reverse the judgment on the ground that the court had no juris diction.

The case presents this question: Whether the common pleas had jurisdiction of the suit to foreclose the mortgage, it having been commenced after the assignment had been made in Union county. Quite general powers are conferred by section 6351, Rev. St., in connection with sections 6350f and 6350g, on probate courts in administering assignments for the benefit of creditors, where they have jurisdiction of the matter of the assignment. But, general as they are, they do not preclude the common pleas, in proper cases, from exercising any of its power as a court of general jurisdiction at law and in equity, when necessary to afford relief to a party that cannot be afforded in a proceeding in the probate court, or so fully and amply as right and justice requires. Dwyer v. Gar

lough, 31 Ohio St. 158. It is supposed that the rule of this decision has been abrogated by the act of March 24, 1891 (88 Ohio Laws, 181). It will be observed, however, that section 6350f only empowers the court to order a sale of the assigned land free of dower, where the wife, on being made a party, "elects" to take the value of her contingent right of dower in money. There is no power to compel her to do so in invitum. And it will be further observed that section 6350g applies to a case only where the assignor and his wife have jointly executed a mortgage upon any of the real estate assigned, or the husband has executed a purchase-money mortgage. Whether, under the latter section, the wife's contingent right of dower can be devested against her consent by a proceeding in the probate court (as it might be to her interest to redeem), need not be considered here, as no such question is presented in this case. It thus appears that the principle of the above decision remains unimpaired, and applies to this case. The probate court is one of limited jurisdiction. It has such powers, and such only, as the statute confers on it. No general power is conferred on it to cause the sale of lands not the property of the assignor. Here certain of the lots covered by the mortgage, as well as the streets of the additions, were not included in the assignment, and could not have been, as they did not belong to the assignor at the time of the assignment. Justice does not require that the mortgagee should, in such case, wait until so much of his security as is included in the assignment has been disposed of, before resorting to that not contained in the assignment; nor that he should be compelled to divide up his remedy by becoming a suitor in two courts instead of one. He had the right, therefore, to resort to the court that could give him a full and complete remedy in one suit. It follows that the judgment in both cases should be affirmed. For, conceding that in the suit subsequently commenced by the trustees in the common pleas the mortgagee might have obtained an order for the sale of all the land, including the streets, covered by his mortgage, by filing a cross petition, and asking for a sale under his mortgage, still, as his suit had been rightly commenced, the commencement of another suit by the trustees in the same court, however adequate the remedy as to him might have been, could not affect the jurisdiction of the court in the suit previously commenced by himself. The view taken of the case renders it unnecessary to consider the question at what time the probate court acquires jurisdiction in the matter of an assignment to the exclusion of all other courts,-whether it is from the filing of the deed of assignment or from the qualification of the assignor as required by statute; for, in any case where the relief that may be had in the probate court is not adequate, the common pleas has jurisdiction.

The superior excellence of a court of general jurisdiction, like our common pleas, resides in the fact that, whatever the case may be, there will not, in general, be a failure of justice from the want of power in the court to hear and determine. Its jurisdiction is in all cases easily determined. It possesses all the powers of a court of justice that are not expressly denied to it, or exclusively given to some other tribunal, and in all questions of doubt jurisdiction is resolved in its favor. Judgment in both cases affirmed.

(62 Ohio St. 368)

EUREKA FIRE & MARINE INS. CO. et al. V. BALDWIN.

(Supreme Court of Ohio. April 10, 1900.) FIRE INSURANCE POLICY-PERFORMANCE OF CONDITIONS-OCCUPANCY BY TENANTVACANCY-INCREASE OF RISK.

1. Where a party avers that he has performed all the conditions of a contract to be by him performed, his proofs upon the trial must show. such performance, in order to entitle him to a recovery. Under such an averment it is not competent to prove a waiver of such conditions. If the waiver of conditions is relied upon, such waiver must be averred in the pleadings.

2. The condition in a fire insurance policy was that the property is "occupied and to be occupied by tenant as a private dwelling," and to be void if the property should become unoccupied without the assent of the company. The tenant moved out, and the son of the owner slept in the house during the day, and worked nights; having only a cot, a chair, and an alarm clock in the house. The family of the owner resided next door, and obtained their rain water from a cistern in the kitchen of this house, and the owner went through the house every day; the fire occurring late at night. Held, that in legal effect the house was unoccupied, and the court should have so instructed the jury, and then left the question to the jury as to whether the risk was thereby increased. 3. The power of an agent to waive conditions in a policy of fire insurance is not different from the same power in life insurance. As to such power, Insurance Co. v. Hook, 56 N. E. 906, 62 Ohio St. is followed and approved. Syllabus by the Court.)

Error to circuit court, Cuyahoga county. Action by J. L. Baldwin against the Eureka Fire & Marine Insurance Company and the Security Fire Insurance Company. A judgment for plaintiff was affirmed in the cir cuit court, and defendants brings error. versed.

Re

The pleadings in the common pleas, omitting the captions and signatures, are as follows:

Petition: "Plaintiff says: That each of defendants is a corporation duly incorporated under the laws of the state of Ohio. On the 20th day of April, 1893, plaintiff, being the owner of a house on North Depot street, in Nottingham, Cuyahoga county, Ohio, in consideration of the premium of three and 20/100 dollars paid, the defendants, by their policy of insurance, a copy of which is hereto annexed, insured plaintiff against loss or damage by fire to the amount of four hundred

dollars on said property, from the 20th day of April, 1893, at noon, until the 20th day of April, 1896, at noon. Plaintiff has duly performed all the conditions on his part to be performed, and on the 16th day of May, 1894, said house was totally destroyed by fire. Plaintiff immediately thereafter, on said 16th day of May, notified defendants of said loss, and afterwards, on January 31, 1895, gave them due proofs of said loss. Each of said defendants, for the consideration of onehalf of said premium paid. in one joint and several policy, insured plaintiff to the amount of one-half of said four hundred dollars. No part of said loss has been paid. Wherefore plaintiff asks judgment in the sum of four hundred dollars,-two hundred dollars against each defendant,-with interest from said May 16, 1894."

Answer: "Now come the defendants, the Eureka Fire & Marine Insurance Company and the Security Fire Insurance Company, and for answer to the petition of plaintiff, J. L. Baldwin, say that they admit that each of the defendants is a corporation duly incorporated under the laws of the state of Ohio; that on or about April 20, 1893, the defendants issued to the plaintiff the policy of insurance, a copy of which is attached to the petition herein, and that plaintiff paid defendants therefor a premium of three dollars and twenty cents; that on or about May 16, 1894, plaintiff notified the defendants' agent that a fire had occurred in or about the house mentioned in said policy; and that defendants have paid plaintiff nothing on account of the claim set up in his petition herein. Defendants deny each and every allegation in said petition contained which is not by this answer expressly admitted to be true."

Second defense: "For their second defense, defendants refer to the admissions and denials of their foregoing first defense, making the same a part hereof, as though herein fully pleaded at length, and say that said policy of insurance contained, among others, the following provisions: That the building insured thereby was at the time of the issuance of said policy, and should during the term thereof continue to be, occupied by a tenant as a private dwelling, and that if said building should become unoccupied, without the assent of the defendants indorsed on said policy, then and in such case said policy should be and become void. And defendants say that long prior to May 16, 1894, the plaintiff's tenant and his family, who had theretofore occupied the building insured by said policy, vacated the same; that said building thereafter remained vacant and unoccupied, as a private dwelling or otherwise, up to the time of the fire mentioned in the petition herein, and that at the time of said fire, and for a long time previous thereto, said building had been vacant and unoccupied as a private dwelling or otherwise; that the leaving of said building so unoccupied and vacant greatly increased the risk thereon, and en

hanced the danger of loss or damage thereto by fire; that assent of the defendants to such vacancy was never indorsed upon said policy; | and that neither one of the defendants, through any one of their agents or representatives, or in any manner, ever assented to said building being left unoccupied as a private dwelling, or had notice or knowledge of its being so unoccupied. Wherefore defendants pray that they may be hence dismissed, with their costs."

Reply: "The plaintiff, for reply to defendants' second defense, says that he denies that said premises were vacant and unoccupied at the time of said fire, or for a long time prior thereto, and denies that the risk thereon was increased or the danger of loss by fire was enhanced in any way over that assumed by the defendants at the time said policy was issued. And, further replying, plaintiff says that it is the custom, in this community, of these defendants, and of insurance companies generally here, to issue and give assents and permits for insured buildings to remain unoccupied temporarily, and for short periods, during changes of tenants, and that these defendants gave plaintiff a like permit for an unoccupied dwelling much more exposed to risks and danger than the dwelling that burned; and plaintiff alleges that the fire which consumed his house originated outside of said building, and said loss was in no way affected by the question of occupancy or vacancy of said building. And, as to all other allegations contained in said answer, plaintiff denies each and all of them."

A copy of the policy was attached to the petition, and on the trial the policy was offered in evidence by the plaintiff below, as were also the proofs of loss. The policy contains the following conditions: That if the premises should at any time be occupied or used so as to increase the risk, or should become unoccupied without the assent of the companies indorsed on the policy, then in every such case the policy should be void. The premises "occupied and to be occupied by tenant as a private dwelling." "The description of the property herein insured, referred to in this policy, shall be considered a part of this contract, and a warranty by the assured during the time this policy is kept in force." "Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the companies, in the city of Cincinnati, and, as soon after as possible, render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property and their interest therein, for what purpose and by whom the building insured, or containing the property insured, and the several parts thereof, were used at the time of the loss, when and how the fire originated, and shall also produce a certificate under the hand

and seal of a magistrate or notary public." The loss or damage "to be paid sixty days after due notice and proofs of the same, made by the assured, and received at the office of the companies, in the city of Cincinnati, Ohio, in accordance with the terms of this policy." "It is further understood, and made part of this contract, that the agent of the companies has no authority to waive, modify, or strike from this policy any of the printed conditions; nor is his assent to an increase of risk binding upon the companies until the same is indorsed in writing on the policy, and the increased premium paid; nor is his assent to a change of interest or transfer of property to another location binding upon the companies until the same is indorsed in writing on the policy; nor, in case this policy shall become void by reason of the violation of any of the conditions thereof, has the agent power to revive the same; and that a new policy intended to replace any policy so made void shall be of no effect until its actual issue and delivery thereof to the assured, any contract by parol or understanding with the agent to the contrary notwithstanding." As the fire occurred on May 16, 1894, and the proofs of loss were not furnished until January 31, 1895, the plaintiff claimed upon the trial that the proofs of loss had been waived; and he was allowed to introduce evidence, over the objection and exception of the defendant companies, for the purpose of proving such waiver. The plaintiff claimed that the companies, after the fire, examined as to the loss, and denied liability because the premises were not occupied at and before the fire; and the court charged the jury, in effect, that such denial, if established, would constitute a waiver of proofs of loss, to which charge the companies excepted.

Upon the trial the plaintiff testified that his tenant moved out of the premises not later than April 19, 1894, and that thereafter he had no other tenant in the house, but that his son, who was a night brakeman, slept in a bedroom of the house upstairs during the daytime, getting his meals at the residence of his parents, and sleeping in the house that was burned, which was next door to that of his parents, from about 9 o'clock in the forenoon until about 5 o'clock in the afternoon, and that he had only a cot, a chair, and an alarm clock in the house, and that he paid no rent, and was not expected to pay any; that he, with his family, resided next door to the burned property, and obtained all their rain water from a cistern in the kitchen of the property; that he went through the property every day; and that the fire occurred late at night. From this evidence, the companies claimed that the house was not occupied by a tenant, and asked the court to so instruct the jury, and then submit the question to the jury as to whether the risk was thereby increased. The court submitted the question as to whether

the house was unoccupied, and, if so, whether the risk was thereby increased, to the jury, to which the defendants excepted. The jury returned a verdict for the plaintiff. The court overruled the motion for a new trial, and entered judgment upon the verdict, to all of which the defendants excepted. The circuit court affirmed the judgment. Thereupon the plaintiff's in error filed their petition in this court, seeking to reverse the judgments of the courts below.

Roger M. Lee, for plaintiffs in error. J. F. Herrick, F. P. McClure, and R. C. Hartshorne, for defendant in error.

BURKET, J. (after stating the facts). The plaintiff below did not concede upon the trial that the house was unoccupied by a tenant, in the sense in which that "term" is used in the policy; but he conceded facts which, when applied to the terms of the policy, in legal effect showed that the house was unoccupied by a tenant from April 19 to May 16, 1894. The son's sleeping in the house, as stated in the evidence, was not an occupancy by tenant; and the family residing next door, and getting rain water at this house, and the owner visiting the house each day, and like acts, did not aid the matter. The court should, therefore, have charged the jury that under the conceded facts the house was unoccupied at and before the fire, and then left the question to the jury as to whether the risk was thereby increased. If increased, there could be no recovery; and, if not increased, there could be recovery, unless prevented by some other question in the case. Insurance Co. v. Wells,

42 Ohio St. 519.

It cannot be said, as a matter of law, that proofs of loss which are furnished on the 31st day of January next after a fire which occurred on the 16th day of May were furnished as soon as possible after the fire. "As soon as possible," in such a case. means as soon as reasonably practicable under the circumstances; that is, within a reasonable time. There might be cases in which proofs of loss could not be furnished sooner than was done in this case, but, if such should be the case, the facts which caused the delay should be pleaded. It was urged below, and also here, that the delay was caused by the denial of liability on the part of the insurance companies. If that caused the delay, the facts should have been set out in the petition. It is also urged that the denial of liability waived all proofs of loss, and that it was not necessary to furnish any proofs of loss in this case; and this was the view taken by the courts below. There are many respectable authorities which hold that a denial of all liability on a policy after a fire is a waiver of all proofs of loss, and that a recovery may be had in such cases without such proofs. Conceding the law to be so for the purposes of this case, without a full ex

amination of the question, still the question remains as to whether that principle of law could be invoked by the plaintiff under the pleadings in this case. The plaintiff did not plead that the defendants had denied liability on the policies, and thereby waived proofs of loss. There was no averment of waiver of any of the conditions of the policies, but, on the contrary, the averment in the petition is that the plaintiff had duly performed all the conditions on his part to be performed. He relied, not upon a waiver of conditions, but upon his performance of them, including the conditions of proofs of loss. That he did not rely upon a waiver of proofs of loss is shown by his averment in his petition that he gave the companies due proofs of loss on the 31st day of January, 1895. A waiver of a condition is the opposite of performance. It is a good excuse for nonperformance. True, there might be a performance of a condition by one party after the other had waived performance. In an insurance case there might be a waiver of proofs of loss, and yet a furnishing of such proofs, notwithstanding the waiver, and in such a case it would be proper to aver both performance and waiver. But, as a rule of pleading, if a party avers the performance of conditions only, he must prove performance upon the trial, and cannot succeed by proving waiver instead of performance. If he intends to rely upon and prove waiver, he must plead it. In this respect an action upon a contract of insurance is not different from an action upon other contracts. The law as laid down in Mehurin v. Stone, 37 Ohio St. 49, is applicable to insurance cases as well as to actions on building contracts.

It is urged that in actions against indorsers of negotiable paper there can be a recovery against an indorser under an averment of due notice to him, although the proof fails to show notice, but shows waiver of notice, and the following cases are cited: Bank v. Richardson, 5 Pick. 444; Blakely v. Grant, 6 Mass. 388; Camp v. Bates, 11 Conn. 492; Bank v. Norton, 22 Conn. 219; and Spann v. Baltzell, 1 Fla. 327. These cases may have been correctly decided under the system of pleading and rules of decision in those states; but in this state our Code of Procedure requires parties to state the facts constituting their cause of action or ground of defense, and, if the fact relied upon in the pleading is notice, that fact should be supplied in the proof, and, if the fact is waiver of notice, that fact should be averred and then proven. This is the plain provision of pleading, and it should be followed, so that parties may be advised by the pleadings as to what they must be prepared to meet on the trial. The power of an agent to waive conditions in a policy of fire insurance is not different from the same power in a case of life insurance, and, as to that question raised in this case, reference is made with approval to what is said on that subject in the case