same by the administrator thereof, and were thereby, as well as by the advertisement of the commissioner to whom reference was had to audit claims, called on to file their claims, if they desired to avail themselves of the benefit of the action. They failed to file their claims, without excuse or explanation, till after the commissioner had reported all claims ascertainable, and till after two judgments of sale of land had been rendered in the action, and the last sale to pay debts of decedent and the costs of the suit and of administration had been confirmed. Two years after they should have set up their claims, they sought to enforce them against the residue of the land sold by the heirs to an innocent purchaser for value, after deducting what was necessary to discharge the known liabilities of the estate. Held, that they were guilty of laches precluding their recovery.

Appeal from Circuit Court, Nelson County. "To be officially reported."

Suit by Jacob Culver's administrator to settle the estate. From a judgment subjecting to creditors' claims certain land sold by the heirs to John S. Kelley, Kelley appeals. Reversed.

John S. Kelley and Geo. S. & John A. Fulton, for appellant. Nat W. Halstead, for appellee.

O'REAR, J. This suit was begun in 1896 by Jacob Culver's administrator to settle his estate. There was not enough personalty to pay the debts of the decedent, and his lands were described in the petition with the view to selling enough of them to pay the indebtedness. The heirs at law and certain creditors, including appellees Bowling & Greenwell, were made defendants, and had actual notice of the pendency and nature of the suit. A reference was had to the master commissioner November 14, 1896, to audit the claims against the estate. On the 29th day of May, 1897, the commissioner, who had previously publicly advertised for claimants, filed his report, showing all claims presented. There were no exceptions to this report. The court decreed a sale of enough of the land, after the allotment of a homestead to the widow, to satisfy the claims reported by the commissioner. The land was sold in August, 1897, and reported to the court at the following October term. Upon exceptions filed to the sale by certain of the heirs, it was set aside, as was the former judgment of sale, for a misprision. A resale was adjudged to pay the indebtedness allowed. That judgment was entered March, 1898. The sale was made under it May 9, 1898, and was confirmed, without exception, May 28, 1898. It was not necessary, as developed by this sale, to sell all the decedent's land to pay the indebtedness presented against the estate. On the 5th day of October, 1898, appellant bought the remainder of the land from the heirs at law, paid them the purchase money-an adequate price therefor-and took their deed of conveyance. On November 11, 1898, a claim for $117.84 was filed in court on this action by Bowling & Greenwell. They sought to have enough of 75 S.W.-18

the remaining land-that sold and conveyed to appellant by the heirs October 5, 1898sold to satisfy their claim. Appellant resisted the application on the ground that he was an innocent purchaser for value, and with out notice of Bowling & Greenwell's claim. He also pleaded their silence and delay in presenting their claim against the estate as an estoppel. The circuit court subjected the land to the payment of the claim. Bowling & Greenwell resided and did business in the county where the land lay, and in which the suit was pending. It is insisted by appellee that appellant was a lis pendens purchaser, and took the title of the heirs subject to the right of the creditors of their ancestor to subject his property in this action to pay his debts. Section 2087, Ky. St. 1899, is relied on. It is: "When the heir or devisee shall alien, before suit is brought, the estate descended or devised, he shall be liable for the value thereof, with legal interest from the time of alienation to the creditors of the decedent or testator; but the estate so aliened shall not be liable to the creditors in the hands of a bona fide purchaser for a valuable considération, unless action is instituted within six months after the estate is devised or descended, to subject same." This section was not intended to create a lien upon the lands descended or devised, for the payment of the ancestor's debts, for a longer period than for six months after an action might have been begun to settle the estate and subject the land. It merely held the estate subject to the decedent's debts until a reasonable time-six months-within which a lis pendens lien might be created against it. to the validity and effect of the lis pendens after it was begun, the section did not change the common-law rule. Whether the creditor of the estate was made a party to the petition in the settlement suit, or not, cannot affect the validity of the lis pendens, for the suit was brought for his benefit, in part, and by statute (section 432, Civ. Code Prac.) his merely filing his claim therein made him a party. Then the allegations of the petition favorable to his proceeding became adopted as allegations on his behalf. That he was made a party to the petition, in fact, merely brought actual notice to him, earlier than the commissioner's advertisement could, of the pendency and nature of the suit, of its privi leges to him, and of the necessity of his availing himself of it if he would share in the distribution of its assets, and become entitled to all the other benefits that might flow from the lis pendens. His rights and his duties, as well, were those of an actual party to the suit. To obtain the benefits of a lis pendens, the party asserting it must have not only a suit in which a relief in rem is sought against specific property sufficiently identified by the record, to which the other claimant or title holder must be a party in fact, but he must prosecute his suit with reasonable diligence. Concerning this rule,

As

and the limitations just adverted to, this court, in Clarkson v. Morgan's Devisees, 6 B. Mon. 447, said: "It has ever been regarded as a harsh and rigorous rule in its operation upon the rights of bona fide purchasers. The rule was dictated by necessity, as indispensable to the rights of litigants, and as the means of terminating litigation about the matter in contest. But being a hard rule, and operating with great severity, in many instances, upon the rights of innocent purchasers, it should never be carried, in favor of a complainant asking its enforcement, beyond the purpose and reason of its creation. To entitle him to enforce it against bona fide purchasers, he has been held to reasonable diligence in the prosecution of his suit, and should be guilty of no palpable slips for gross irregularities in the management of the same, by which injury may accrue to the rights of others who are not parties." Also, see, Watson v. Wilson, 2 Dana, 406, 26 Am. Dec. 459; Erhman v. Kendrick, 1 Metc. 146; Debell v. Foxworthy's Heirs, 9 B. Mon. 228. The doctrine as announced in Clarkson v. Morgan's Devisees, supra, is approved by the text in Freeman on Judgments, § 208, and sustained by the authorities there cited. It is founded in part upon the idea that a stranger to a suit should not intermeddle with its subject-matter, except upon pain that he be bound by its conclusion; that he must take notice of its existence, and to that end he is required, at his peril, to exercise due diligence in informing himself as to its existence and nature. It would be an anomalous rule, indeed, that would require diligence of the innocent stranger, while condoning the most culpable negligence of the controlling party to the suit. The doctrine of lis pendens does not depend at all upon, nor is it affected by, the actual knowledge of the stranger as to the purposes of the suit, or the specific facts to be gathered from its record. He is bound, if bound at all, by the sufficiency of the record alone. So that if the suit be permitted to abate, or revivor be not had for unreasonable length of time (Watson v. Wilson, 2 Dana, 406), or if it is not presented with reasonable diligence, it is the same as if the suit had never been brought, so far as the doctrine under discussion is concerned.

In the case at bar, the creditors, Bowling & Greenwell, were named and joined in the suit as creditors, and thereby, as well as by the advertisement of the commissioner, were called upon to file their claim as creditors, if they had any, and desired to avail themselves of the benefit of the action. They, without excuse or explanation, failed to do so till after the commissioner had reported all claims ascertainable, till after two judg ments of sale had been rendered in the action, till after the last sale to pay the debts of the decedent and the costs of the suit and of the administration had been confirmed, and till after the heirs had sold and conveyed

to an innocent purchaser for value the residue of the land, after deducting all that was necessary to discharge the known liabilities of the estate; and not till more than two years after they might and should have set up their claim do they attempt to assert it against this land. By their prolonged silence under circumstances ordinarily calculated to produce action, they not unreasonably produced the impression upon any one investigating the record that they were not in fact creditors, or that they elected not to avail themselves of the purposes of the suit. It is equivalent to their having said to intending purchasers from the heirs at law: "I have no claim against this land." For silence may be as potent a disclaimer, under conditions calling for action, as would be a positive declaration. "No one is permitted to keep silent when he should speak, and thereby mislead another to his injury." 2 Herman on Estoppel, p. 1069. The admirably clear text of 1 Herman on Estoppel & Res Adjudicata, § 6, thus epitomizes this branch of estoppel: "If a man has led others into the belief of a certain state of facts by conduct of culpable negligence, calculated to have that result, and they have acted on that belief to their prejudice, he shall not be heard afterwards, as against such persons, to show that state of facts did not exist. A man is not permitted to charge the consequences of his own fault on others, and complain of that which he has himself brought about."

It is very earnestly claimed that the allegations of the petition filed by the administrator brought to settle the estate were enough to put appellant upon notice as to the existence of Bowling & Greenwell's claim, as if his knowing of it affected him in the least. The language of the petition that is referred to is this very vague and indefinite averment: "The defendant Mary Culver holds a mortgage on a part of the land hereinafter described, and which was a debt against said decedent amounting to about $450, and which is due and unpaid. And the defendants Bowling & Greenwell and Dr. James Muir and said Mary Culver are the only creditors of said decedent known to plaintiff." It is to be observed that the section of the statute before referred to (section 2087), affecting purchasers for value from the heir at law or devisee, does not require that the purchaser shall have been an "innocent" purchaser, or one without notice of the ancestor's indebtedness. It merely requires that he be a purchaser in good faith and for value. If, after the six months mentioned, one becomes such purchaser, it does not matter how much he knows about who were the creditors of the decedent. The only thing that can at that time affect the land as a lien is a valid lis pendens.

There is no question of fraud involved in this suit. Upon the facts recited, we are of the opinion that the pendency of the action

ceased to constitute a lis pendens lien upon the land, by reason of Bowling & Greenwell's negligence in failing for so long to present their claim, and to prosecute it with reasonable diligence.

The judgment of the circuit court is reversed, and the cause is remanded for proceedings not inconsistent herewith.

EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. WARREN DEPOSIT BANK et al.

(Court of Appeals of Kentucky. June 10, 1903.)

INSURANCE-LAPSE-PAID-UP POLICY-RIGHT TO ISSUAL-LACHES IN APPLICATION. 1. A life insurance policy, lapsed for nonpayment of premiums, entitled insured, certain payments having been made, to have issued to him in lieu thereof a new, paid-up, nonparticipating policy, on condition, however, that the lapsed policy should be surrendered, duly receipted, within six months of his default. Held, that although, notwithstanding the condition of the policy, insured was entitled to a reasonable time in which to demand an issual of the paid-up policy, a failure of insured to make application therefor for over five years from the date of default was laches, such as to bar his right.

Appeal from Circuit Court, Warren County.

"Not to be officially reported."

Action by the Warren Deposit Bank and another against the Equitable Life Assurance Society of the United States. From judgment for plaintiffs, defendant appeals. Reversed.

Humphrey, Burnett & Humphrey and Mitchell & Du Bose, for appellant. John M. Galloway, John B. Rodes, and W. B. Gaines, for appellees.

O'REAR, J. A life policy in appellant society, issued upon the life of E. A. Porter, and assigned by him to appellee Warren Deposit Bank, lapsed for nonpayment of premium due August 6, 1896. By reason of certain payments having been made under a provision of the contract of insurance, the assured (Porter) was entitled to have issued to him, on August 6, 1896, in lieu of the policy, a new paid-up policy, without participation in the profits, for the entire amount which the full reserve, according to the legal standard of the state of New York, would then purchase as a single premium, calculated by the legal table for single-premium policies then in use by the society. But it was provided, however, "that this policy shall be surrendered, duly receipted, within six months of the date of such default in payment of premium as mentioned above." More than five years after the policy had lapsed this action was begun by the assured and his assignee to compel the issual to them of the new paid-up policy provided for and above mentioned. Appellant pleaded the laches of appellee in making the application, as well as the statute of limitations.

In Mutual Life Ins. Co. v. Jarboe, 102 Ky. 80, 42 S. W. 1097, 39 L. R. A. 504, 80 Am. St. Rep. 343, it was held, in construing the terms of a policy substantially the same as the one sued on, that the insured was entitled to have the new paid-up policy issued to him, although he did not make the application within the six months named, provided the application therefor was made within a reasonable time. The cases of Hexter v. U. S. Life Insurance Co., 91 Ky. 357, 15 S. W. 863, and Northwestern Mut. Life Ins. Co. v. Barbour, 92 Ky. 429, 17 S. W. 796, 15 L. R. A. 449, which had restricted the right of the insured to demand such policy to the contract time of six months, were expressly overruled. The Jarboe Case was followed and approved in Manhattan Life Ins. Co. v. Patterson (Ky.) 60 S. W. 383, 53 L. R. A. 378, and again in Washington Life Ins. Co. v. Miles (Ky.) 66 S. W. 740. In the last-named case the court, all concurring, after full and careful consideration of the matter, announced the rule that should be applied generally, as to the time within which the application should be made by the insured, that such time should not be longer than five years from the day when the insured might first have demanded the issual of such policy. The failure of the insured to make the demand within that time was conclusively deemed by the court to be such laches as would bar his right of action upon the policy. There is nothing in this case that should relieve appellee of the operation of this rule.

The action of the special circuit judge in sustaining the demurrer to appellant's answer, pleading the laches, was error. The judgment is reversed, and cause remanded, with directions to overrule the demurrer, and for proceedings not inconsistent herewith.

1. A compliance by a foreign railroad corporation with Const. § 211, and Ky. St. 1899, § 841, the former providing that such corporations shall not be entitled to the right of eminent domain, or have power to acquire a right of way or real estate, until they shall have become bodies corporate in accordance with the laws of the commonwealth, and the latter prescribing the manner of such incorporation, does not render the corporation a citizen of the state in such sense as to deprive it of the right to remove to the federal court actious instituted against it by a citizen of the state.

2. In an action against a foreign railroad corporation, an amended petition, tendered after

the filing by defendant of a petition for removal of the cause to the federal court, making a domestic corporation, original defendant's lessor, a party, came too late to prevent the removal.

3. An allegation in a petition that plaintiff's intestate was killed "at or near" a private crossing should be construed to mean that she was killed at a place on the track other than the crossing.

4. A failure to slacken the speed of a train, or to give signals at an approach to private crossings, is not negligence.

5. In an action against a railroad for injuries at a private crossing, near a public crossing, where there was no averment that signals usually given on the approach of trains to the public crossing could have been heard at the private crossing, and the distance between the crossings was not given, but a bare statement that they were "near" together, the question of defendant's negligence in failing to give signals at the public crossing, on which plaintiff could rely, was not raised.

6. Those in charge of a train owe a trespasser on the tracks of the railroad no duty, except to use reasonable care to save him after discovering his peril, and, if injured, he cannot rely for a recovery against the railroad on alleged negligence in failing to give signals on approach to either a private or public crossing.

7. In order to prevent a removal of an action for injuries against a foreign railroad company to the federal court, by joining as defendants resident servants of the railroad in charge of the train causing the injury, the petition must state a good cause of action against the servants so joined.

Nunn, J., dissenting in part.

"To be officially reported."

On rehearing. Rehearing granted, and former opinion withdrawn.

For former opinion, see 70 S. W. 857.

PAYNTER, J. This is an action to recover damages for the loss of the life of the intestate by the alleged negligence of the Chesapeake & Ohio Railway Company. It presented its petition and asked for the removal of the case to the federal court, and the motion was sustained. Owing to our duplex system of government, perplexing and delicate questions as to the respective jurisdiction of the federal and state courts arise; and the judiciary should meet and dispose of them with fairness and in the orderly manner which should characterize the proceedings of courts of justice. It will not be our purpose to discuss the questions considered by the Supreme Court of the United States, but to state its conclusions and follow them, as that court has jurisdiction to adjudicate the question involved.

Section 1, art. 3, of the Constitution of the United States provides that "the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish." Section 2 of the same article provides that, "the judicial power shall extend to all cases in law and equity, arising under this Constitution, to controversies

between citizens of

4. See Railroads, vol. 41, Cent. Dig. § 994.

different states." When a case decided by a supreme court of a state involves the question of diverse citizenship, the Supreme Court of the United States has held in many cases that it will review the judgments of those courts on the question. That court having adjudged the precise question here involved, and adversely to the view of this court, expressed in the former opinion delivered herein, we feel that the petition for a rehearing should be granted, and the opinion withdrawn, which is done.

The appellant is a citizen of Kentucky. It is substantially averred in the petition that the Chesapeake & Ohio Railway Company is a corporation organized under the laws of Virginia, and became a corporation, citizen, and resident of this state by filing in the office of the Secretary of State and in the office of the Railroad Commission, pursuant to section 211 of the Constitution and section 841 of Kentucky Statutes of 1899 copies of its articles of incorporation. The Chesapeake & Ohio Railway Company is a Virginia corporation. It complied with section 841, Ky. St. 1899, which reads as follows: "No company, association or corporation created by, or organized under, the laws or authority of any state or country other than this state, shall possess, control, maintain or operate any railway, or part thereof, in this state until, by incorporation under the laws of this state, the same shall have become a corporation, citizen and resident of this state. Any such company, association or corporation may, for the purpose of possessing, controlling, maintaining or operating a railway or part thereof in this state, become a corporation, citizen and resident of this state by being incorporated in the manner following, namely: By filing in the office of the Secretary of State, and in the office of the Railroad Commission, a copy of the charter or articles of incorporation of such company, association or corporation, authenticated by its seal and by the attestation of its president and secretary, and thereupon, and by virtue thereof, such company, association or corporation shall at once become and be a corporation, citizen and resident of this state. The Secretary of State shall issue to such corporation a certificate of such incorporation." This section of the statute was based upon section 211 of the Constitution of the state, which reads as follows: "No railroad corporation organized under the laws of any other state, or of the United States, and doing business, or proposing to do business, in this state, shall be entitled to the benefit of the right of eminent domain or have power to acquire the right of way or real estate for depot or other uses, until it shall have become a body corporate pursuant to and in accordance with the laws of this commonwealth." When the Chesapeake & Ohio Railway Company complied with the terms of this section of the statute, it at once became "a corporation, citizen and resi

dent of this state," for it is therein so provided.

But the question then arises whether it remained a citizen of the state where it was organized in the meaning of section 2, art. 3, of the Constitution of the United States. In Bank v. Deveaux, 5 Cranch, 86, 3 L. Ed. 38, Chief Justice Marshall said: "That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen, and consequently cannot sue or be sued in the courts of the United States, unless the rights of members in this respect can be exercised in their corporate capacity." In Covington Drawbridge Co. v. Shepherd, 20 How. 227, 15 L. Ed. 896, it was said: "No one, we presume, ever supposed that the artificial being, created by an act of incorporation, could be a citizen of a state in the sense in which that word is used in the Constitution of the United States." In Muller v. Dows, 94 U. S. 444, 24 L. Ed. 207, the court said: "A corporation itself can be a citizen of no state, in the sense in which the word 'citizen' is used in the Constitution of the United States. A suit may be brought in the federal courts by or against a corporation, but in such a case it is regarded as a suit brought by or against the stockholders of the corporation; and for the purpose of jurisdiction it is conclusively presumed that all the stockholders are citizens of the state which by its laws created the corporation." At first the Supreme Court held that, in order to give federal courts jurisdiction of an action by or against corporations, it was necessary to aver citizenship of the incorporators. Subsequently it held that the individuals composing a corporation were conclusively presumed to be citizens of the state creating the corporation.

There is no averment in the petition that the individuals composing the Chesapeake & Ohio Railway Company were associated together for the purpose of organizing a corporation of the same name in this state. The corporation which they organized in another state is, by an act of the General Assembly, declared to be a citizen and corporation of Kentucky, by reason of its compliance with certain constitutional and statutory regulations. In St. Louis R. Co. v. James, 161 U. S. 545, 16 Sup. Ct. 621, 40 L. Ed. 802, it appeared that the St. Louis Railroad Company had been incorporated by the state of Missouri, and had subsequently filed its articles of incorporation with the Secretary of State of the state of Arkansas, under a statute like the one under consideration. A citizen of Missouri sued it in Arkansas, alleging it was a citizen of Arkansas. The court held that it was not a citizen of Arkansas, and was entitled to have its case removed to the federal court. The precise question involved in this case was decided in Walters v. Chicago R. Co., 186 U. S. 479, 22 Sup. Ct. 941, 47 L. Ed. the court holding that the case should be removed to the federal court; and as au

thority for the decision cited St. Louis R. Co. v. James, and Louisville R. Co. v. Louisville Trust Co., 174 U. S. 552, 19 Sup. Ct. 817, 43 L. Ed. 1081. On November 3, 1902, the same court, in Calvert, Administrator, v. Southern Railway Co., 23 Sup. Ct. 844, 47 L. Ed. —, decided the same question here involved and in the Walters Case, and ruled the same way it did in the latter case. Southern Railway Company v. Allison, 23 Sup. Ct. 713, 47 L. Ed.- decided May 18, 1903, by the Supreme Court, involved precisely the same question we have under consideration. The Southern Railway Company, a Virginia corporation, accepted the provisions of the statute of North Carolina, which is similar to our statute. The question was whether it was by virtue thereof a citizen of North Carolina, and thereby lost its citizenship of Virginia, in the meaning of the federal Constitution; and the court held that it had not, and that it was entitled to have the action removed to the federal court. In that case the court reviewed the cases to which attention has been called and held them to be authority for its conclusion. The court also said it had "read with respectful consideration" the case of Debnam v. Southern Bell Telephone Co., 126 N. C. 831, 36 S. E. 269, in which the Supreme Court of that state reached the same conclusion that this court reached in the opinion which has been withdrawn, but said it could not concur therewith. The Debnam Case was cited in the withdrawn opinion as authority therefor.

After the petition for removal had been filed, the appellant tendered an amended petition, making the Maysville & Big Sandy Railroad Company, a domestic corporation and appellee's lessor, a defendant. It came too late to prevent a removal of the case. Therefore it was not within the rule of the McCabe Case (Ky.) 66 S. W. 1054, and Person v. Illinois Central Railroad Co. (C. C.) 118 Fed. 342.

Before the petition for removal was filed, the plaintiff filed an amended petition, making Bracken, Lewis, and Inskip defendants, who were the conductor, engineer, and fireman, respectively, and who are alleged to have been in charge of the train when the accident happened. A recovery is sought against them, as well as the Chesapeake & Ohio Railway Company.

It is alleged that the intestate was run over and killed "at or near" a private crossing over the railroad track between her house and garden; that it was "not far" from public crossings to the east and west of her. The alleged negligent acts are that the train ran over the crossing at the rate of 50 miles per hour, which was a dangerous speed; that they failed to keep a lookout for travelers upon or at the crossing; that they failed to give signals of the approach of the train to the crossings. These are the acts of negligence averred in the petition. The averment that she was killed "at or near" the private