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instrument, the grantee municipality did not acquire an absolute title to the fee in the premises. The court says: "It is not incumbent upon us at this time to determine the precise nature of the estate conveyed by this instrument, whether a new easement was acquired by the village, or an estate on condition or in trust. But we are obliged to consider the clause in connection with the remainder of the deed and to give it the effect intended, if that can be discovered and is reconcilable with the main purpose of the parties."

This court has held that "riparian rights being incident to land abutting on navigable waters can not be conveyed without a conveyance of such land, and such lands covered by navigable waters are subject to entry only by the owner of land abutting thereon." Zimmerman v. Robinson, 114 N. C., 39.

We are of the opinion that the grant to Morehead and Arendell of Square 83 operated to give to them an exclusive right or easement therein as riparian owners and proprietors to erect wharves, etc.; that when they ceased to be the owners of the land, by conveyance to the Shepard's Point Land Company, such easement passed as appurtenant thereto, and that it has passed by the several conveyances of the land as appurtenant to Square No. 1; that such easement passed to the defendant company, and the plaintiff has no such title to the soil under the navigable water as entitles it to maintain this action.

We are aware that this opinion is in conflict with many cases cited from other States, but we have given them careful consideration, and, in the absence of any controlling authority in this State, we think the conclusion to which we have arrived is consistent with the terms of the grant and the well settled policy of this State.

There must be a

New Trial.



1. INSUBANCE-Life Insurance-Premiums - Payment-Contracts



The acknowledgement in a policy of insurance of the receipt of a premium estops the company to test the validity of the policy on the ground of the non-payment of the premium.

2. INSURANCE-Life Insurance-Premiums-Payment Contracts—Application.

Where a policy of insurance is delivered, its delivery, in the absence of fraud, is conclusive that the contract is completed and is an acknowledgement that the premium was paid during the good health of the insured

Burwell & Cansler, for the plaintiff.
Jones & Tillett, for the defendant.

3. INSURANCE-Life Insurance-Application.

Where a policy of insurance is delivered it is based on the status of the insured at the time of the application and the insurance company assumes the risk of subsequent ill health of the insured.

ACTION by J. M. Grier against the Mutual Life Insurance Company of New York, heard by Judge Thomas J. Shaw and a jury, at January Term, 1903, of the Superior Court of MECKLENBURG County. From a judgment for the plaintiff, the defendant appealed.

CLARK, C. J. On 26 February, 1901, the plaintiff's intestate made out an application for a policy of insurance upon his life, which was sent to the home office of the defendant, where it was accepted and a policy thereupon was duly executed 9 March and is dated 26 February. This policy was sent to defendant's agent for delivery, who delivered the same on 14 March. In the meantime the insured had been


taken on 6 March with a chill from exposure, which was followed by fever; on 12 and 13 March he was free from fever, and the attending physician (witness for defendant) says his condition was not so good the next day (14th) and on the 15th he developed catarrhal pneumonia and died 18 March. At the time the policy was applied for, the insured said he preferred to pay the premium ($23.30) in cash, and in presence of the defendant's agent told Mr. Lee, who had money of the insured in hand, to pay that sum to the defendant's agent. On 14 March the defendant agent told Lee he had the policy, who told him, as the said agent testifies, that the insured was not well, that he had a cold, or the grippe, and was up at his house, and suggested that agent go up to his house to see him, but the agent did not do So, and delivered the policy to Lee, who offered the money to the said agent, who told him that he would get it when he collected the other premiums at that point, and on 16 March the said agent paid the premium on this policy to the district agent at Charlotte. On hearing of the death, the company sent out blanks for proofs of loss, and no offer to return the premium was made till 8 July (after this suit began), though on 26 June the district agent wrote to the plaintiff that "the amount of premium, with interest, paid on 14 March, 1901," had been returned to him by the company, who had declined to pay the loss. There was no averments in the answer of fraud in the application, or in the suppression of facts, or misrepresentation as to the condition of health of the insured 14 March, when the policy was delivered.

The defendant excepts because the court instructed the jury that if they believed there was a material change in the health of the insured between the time of the application and the delivery of the policy, to answer the issue in favor of the defendant "unless you further find from the evidence


that the defendant company, before the delivery of the said policy, received notice of the said changed condition in the health of said Davidson and waived its right to avoid the policy for this reason.' And the defendant further excepted because the court charged that if the company accepted the application on 9 March and executed its policy and sent the same to its local agent for delivery, and, "if you further find from the evidence that on 14 March and before the delivery of the policy to said Davidson (the insured) the said Gordon (defendant's agent) received notice of the material change in the condition of the health of said Davidson, if you find there was such a change, and the said Gordon notwithstanding such notice delivered said policy to Lee with instructions to deliver it to Davidson at once, and for the purpose of making it a binding contract on the defendant company, and that Lee did so, and that Lee offered to pay Gordon the premium upon the policy for Davidson pursuant to instructions from said Davidson, if you find there ever were such instructions; but that Gordon for his own convenience requested that the plaintiff's premium be not paid then, but that the same should be paid him in accordance with the usual course of dealing between himself and said Lee, and that this was agreed to between said parties, and that on the 16th of said month Gordon sent the company's part of said premium in the usual course of business to the defendant, and, upon the death of said Davidson, notice thereof was given to the defendant, and that the defendant sent to the administrator of the deceased blank applications for proving the death of said Davidson with instructions to make out said proofs, then the court instructs you to find that the defendant company before delivering said policy had notice that there had been a material change in the condition of the health of said Davidson since making his application and

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before the delivery of the policy, and had waived its right to have the policy avoided for this reason."

There is nothing in these instructions of which the defendant could complain, and our disposition of them renders it unnecessary to discuss the other exceptions.

All the points herein raised were considered and decided by a unanimous court in the recent case of Kendrick v. Insurance Co., 124 N. C., 315; 70 Am. St. Rep., 592. The policy as well as the application provides that if the application is approved and a policy is issued, it shall be in force from the date of the application. When therefore the application was accepted and the policy was issued 9 March, it dated back to 26 February. In fact the policy certifies that it was signed 26 February. There only remained the delivery of the policy to complete the contract. The provision in the application that the contract shall not take effect until the first premium shall have been paid, during the applicant's continuance in good health, is only a provisional agreement authorizing the company to withhold the delivery of the policy until such payment in good health; but when the company actually delivers the policy, then it is estopped, in the absence always of fraud, to assert that its solemn contract is void either on account of non-payment of premium or of ill health, which stipulations were asserted in the application as conditions to excuse it from such delivery, and are not grounds to invalidate the policy after it has been delivered.

If the premium in fact is not paid, the acknowledgement of payment, so far as it is a receipt for money, is only prima facie and the amount can be recovered; but so far as the acknowledgment is contractual, it cannot be contradicted so as to invalidate the contract. See Kendrick v. Ins. Co., 124 N. C., 315; 70 Am. St. Rep., 592, and cases there cited. The same principle is there shown to apply to deeds and all other con

Vol. 132-35

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