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tracts under seal. The same rule applies to the stipulations in the application which provide that the contract shall not take effect till the first payment shall have been made during continuance in good health. The application recites that the agent has given the insured a binding receipt "signed by the secretary of the company, making the insurance in force from this date, provided this application shall be approved and the policy signed by the secretary at the Head Office of the Company and issued." It was agreed thereby that if the application was accepted and the policy issued the insurance began from the date of the application. Everything counted from that date, which is the anniversary on which future premiums must be paid or the policy forfeited for non-payment. The risk of illness accruing after said date was upon the company from its acceptance of the application and "issuance" of the policy, but the company reserved to itself the advantage of a provision that the contract shall not go into effect "till payment of premium during the applicant's continuance in good health," thus giving itself a locus penitentiae and making the insured bear his own risk till payment of premium and issuance of policy. But when the policy is not only issued but delivered, its delivery (in the absence of fraud) is conclusive that the contract is completed (Ray v. Ins. Co., 126 N. C., 166) and is an acknowledgment of payment during continuance in good health. If the agent had not delivered the policy, whether the circumstances would have justified the withholding of the delivery so as to release the company from responsibility is not a matter before us. He did deliver it, and with full opportunity to see the insured and with a suggestion that he do so, and there is no allegation of fraud and collusion, as in Sprinkle v. Indemnity Co., 124 N. C., 405. The delivery of the policy closed the contract like the delivery of any other deed, and the preliminary provisions in the application for


withholding thereof ceased to be of any force. In Kendrick's case supra, the money was not paid till after a lingering illness and on the very day of the death, and then by a friend, but it was held that the delivery of the policy was conclusive as to the contract being complete.

Numerous authorities can be cited in support of what is here said, but the matter has been sufficiently elaborated in Kendrick v. Insurance Co., 124 N. C., 315; 70 Am. St. Rep., 592. To same purport Life Asso. v. Findley, (Texas) 68 S. W., 695; Indemnity Asso. v. Grogan, (Ky.) 52 S. W., 959; Insurance Co. v. Koehlar, 63 Ill. App., 188; Ins. Co. v. Schlink, 175 Ill., 284; Ins. Co. v. Quinn, 41 N. Y. Supp., 1060; McElroy v. Ins. Co., 94 Fed. Rep., 990. In Life Asso. v. Findley and Indemnity Co. v. Grogan, the facts were identical almost with those in this case.

There is no stipulation that the policy shall not be delivered unless the insured is in good health, for that would unjustifiably shift off upon the insured any mortal illness accruing after the application and during the time for which he has paid. But the agreement is that the first premium must be paid during good health, and, in the absence of fraud, the delivery of the policy is conclusive of that fact.

It was contemplated by the parties that the payment should be made with the application and that the receipt then given should protect the insured from that date, if the application were accepted. The issuance of the policy is acceptance of the application and should be based upon the status at the time the application is made, and is not affected by a subsequent change of health, for that is part of the risk the company assumed and for which it was paid. When the premium is not paid with the application, the company reserves the right not to complete the contract till payment of the premium, while the insured is in good health. But, as already said, the actual delivery of the policy concludes the


contract in the absence of fraud. If the local agent were the agent of the insured, the mailing the acceptance-the policy -directed to him would close the contract. Adams v. Lindsell, 1 B. & Ald., 68; Benj. on Sales, Sec. 44. Certainly, as he is the agent of the company, the delivery of the policy by him is its delivery.

No Error.

Walker, J., having been of counsel did not sit on the hearing of this case.


(Filed May 5, 1903.)

1. JURISDICTION-Superior Court-Clerk Superior Court-Appeal. Where an action is wrongfully brought before the clerk of the superior court and is taken to the superior court by appeal, the superior court having original jurisdiction, it will be retained for hearing.

2. PARTITION-Sale-Remainders-Estates.

The court bas the power to order the sale of real estate limited to a tenant for life, with remainder to children or issue, upon failure thereof, over to persons all or some of whom are not in esse, when one of the class being first in remainder after the expiration of the life estate is in esse, and a party to the proceeding, to represent the class, and that upon decree passed, and sale and title made pursuant thereto, the purchaser acquires a perfect title as against all persons in esse or in posse.

3. PARTITION — Sale-Remainders-Contingent Remainders—Trusts and


Where an estate is vested in a trustee to preserve contingent remainders and limitations, the court may, upon petition of the life tenant and the trustee, with such of the remaindermen as may be in esse, proceed to order the sale, and bind all persons either in esse or in posse.


4. PARTITION—Sale—Remainders— Vested Interests—Acts 1903, Ch. 99. Since Acts 1903, ch. 99, the court has the power, when there is a vested interest in real estate and a contingent remainder over to persons who are not in being, or when the contingency has not yet happened which will determine who the remaindermen are, to order the sale by conforming to the procedure prescribed by the act. The act is constitutional, and applies to estates created prior to its enactment.

5. PARTITION-Sale-Remainders-Investments-Judicia! Sales. Where real estate is sold under order of the court, the decree must provide for investment of the fund in such way as the court may deem best for the protection of all persons who have or may have remote or contingent interests.

ACTION by E. B. Springs and others against J. M. Scott and others, heard by Judge Thomas J. Shaw, at March Term, 1903, of the Superior Court of MECKLENBURG County. From a judgment overruling the demurrer, the defendants appealed.

Jones & Tillett, for the plaintiff.

Burwell & Cansler, for the defendant.

CONNOR, J. This is a special proceeding instituted in the Superior Court of Mecklenburg County for the purpose of obtaining an order for the sale of the land described in the petition for partition. The plaintiff and the feme defendant are the children and devisees of Julia Springs, deceasedthe plaintiff, E. B. Springs, appearing in his own behalf and as trustee of Alva C. Springs. The petitioners aver that they together with the feme defendant are seized as tenants in common of a lot in the city of Charlotte under the provisions of Item 5 of the will of their mother, the late Julia B. Springs, which is in the following language: "I give and bequeath unto my son Alva C. Springs one hundred dollars. I also wish his expenses paid here and back to his home when


I die. I also give him equal with the rest of the children, but he can only receive the interest during his life; at his death the interest will be paid to his children until they are of age, and if no children or heirs of his body, it must be equally divided among his brothers and sisters or their heirs. I appoint Eli Springs his trustee." Alva C. Springs has no children, and the said parties desire to have partition of the land; that it is for the best interest of all concerned that the partition be made, and owing to the number of shares and the character of the property, actual partition can not be made, and it is necessary to have a sale for partition. The defendants demur to the petition and for cause of demurrer say:

"1. That it appearing from the plaintiff's complaint and particularly from the will of said Julia B. Springs that the interest therein devised to Alva C. Springs is for his life only, and that after the death of Alva C. Springs there is a limitation over to his children until they are of age, and if no children or heirs of his body, to his brothers and sisters or their heirs, and it can not now be known who the heirs are who will be entitled to take upon the death of said Alva C. Springs.

2. That the heirs of said Alva C. Springs are not made parties to this action and that the said heirs are necessary parties.

3. That this court has no jurisdiction to order a sale of the land described in the complaint."

The court overruled the demurrer and directed a sale of the land. The defendant appealed to the judge who affirmed the judgment of the clerk and directed that the cause be retained for further hearing upon the coming in of the report. From this judgment the defendants appealed to this court.

The only question therefore is whether, in the absence of any child of the said Alva to represent those next in remain

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