not made out. The contention is not supported by any evidence, and the court directs you that you need not give that matter any consideration." In this action, as appears by the record, the plaintiff alleged the performance of all conditions precedent generally, and the plaintiff in error pleaded the general issue, and pleaded specially only the alleged misrepresentation as to age. At the trial, the defense was also made of the nonpayment of a death assessment within the time prescribed by the constitution and laws of the society. Section 126 of the practice act of this State requires such a defense to be specially pleaded. It has also been held in many cases that, unless the claim of forfeiture is specially pleaded, no such defense can be maintained at the trial: Bittinger vs. Insurance Co; Gray vs. Supreme Lodge, 118 Ind., 293. But, leaving out of consideration any technical questions, it appears by the record that this part of the defense was based entirely upon some entries made in a book belonging to John McDonald, and purporting to be payments of assessments to the defendant corporation. There are twelve such payments recorded in the book, only one of which, the first, is alleged to have been made after the expiration of the time when due. But that the assessment was overdue is not proved by this book, for the same column which shows this one assessment to have been paid some eight days too late also shows two others to have been paid before they had been called. One assessment entered in this book as called October 15th, is entered paid October 14th; and another called November 15th, and paid November 6th. The book, therefore, failed entirely to prove the actual dates of assessments and payments. All the payments were received by one L. D. Kay, but by what authority does not appear. Law 3, § 1, of the constitution of the supreme assembly directs that each member shall pay his assessment to the subordinate assembly, and this one in question may have been paid to the assembly in due time. It further appears by this book that, within five months after this alleged default, eleven other assessments were paid by McDonald and received by the plaintiff in error. Law 7, § 1, of the constitution of the supreme assembly provides for the reinstatement of any member suspended for nonpayment of an assessment; and, if there had been sufficient proof of the nonpayment in due time of this one, the receipt of eleven subsequent assessments would create the legal presumption of reinstatement to membership, there being no evidence to the contrary: Hoffman vs. Supreme Council, 35 Fed., 252; Supreme Lodge vs. Johnson, 78 Ind., 110. There was no book or record or officer of either the supreme or subordinate assembly produced to show that all the payments recorded in this book were not legally made

and duly received by the plaintiff in error, and, if not so made and received, the evidence to the contrary was in their possession.

Another fatal defect in this defense on the ground of forfeiture for the nonpayment of a death assessment within the required time is the failure to prove that the defaulting member had notice that it was due. Proof of notice is essential to sustain such a defense: Bac. Ben. Soc., § 379; Supreme Lodge vs. Johnson, 78 Ind., 110; Aid Soc. vs. Helburn, 85 Ky., 1. The form of notice and the manner of giving it may be determined by the rules of the society, but some form of notice must be given, or there can be no default. The constitution and laws of the supreme assembly recognize this right to a notice of each assessment; and section 2 of law 3 provides that

Each subordinate assembly may, at its option, provide for notification of its members of the assessment calls, which may be by written or printed notice, or by a newspaper containing the supreme secretary's notice, and may be mailed or personally delivered to the members of the assembly.

But there is no evidence whatever that notice of this assessment, default in the payment of which is alleged, was ever given to McDonald, either in writing or by printed notice, or that a newspaper containing the supreme secretary's notice was either mailed or personally delivered to him. There is no allegation of default by McDonald in the payment in due time of any other assessment than the one in question during the almost seven years of his membership in this society, and at the time of his death he continued to hold the benefit certificate originally issued to him by the supreme assembly. In Tobin vs. Aid Soc. (72 Iowa, 261), the court held that "in an action upon a certificate of membership in a mutual aid society, where the society sought to avoid liability on the ground that the member failed to pay an assessment stipulated in the contract, the society had the burden to establish such failure, notwithstanding the plaintiff in general terms had alleged compliance with the contract." The same rule is also stated in Hodsdon vs. Insurance Co., 97 Mass., 144.

There was no error in directing the jury that the defense that McDonald was not in good standing at the time of his death was not made out, and that the contention was not supported by any evidence, and that they need not give the matter any consideration. Having reached this conclusion, it is not necessary to review the remaining assignments of error, for they are only the corollaries of the one last considered, and must fall with it. We find no error in the record, and the judgment should be affirmed.

SUPREME COURT OF OREGON.

BAKER

V8.

STATE INS. CO.*

The property was described in the complaint as lots 27 and 28, block 8, in Harlington addition to Mt. Tabor. There was no such place, but according to the proof they were as numbered in Harlem addition to East Portland.

Held, That the variance was not fatal.

The insured held possession under a contract for a deed which had been fully performed up to date.

Held, That the insured was the sole owner, and the title was in her name within the meaning of the policy.

An erroneous statement as to value of the property unless fraudulent will not vitiate the policy.

W. T. SLATER, for Appellant.

GEO. H. WILLIAMS, for Respondent.

WOLVERTON, J.

This is an action upon a policy of insurance, to recover a fire loss of $400 on a dwelling and $200 on household furniture. The defense interposed is: That plaintiff, by her written application, and as an inducement for the issuance of the policy of insurance, made answers to certain inquiries touching the value of the building and land upon which it is situate, and the ownership and title of the land, in substance as follows:

Question. What is the actual cash value of your land and the buildings thereon? Answer. One thousand dollars. Q. Are you the sole and undisputed owner of said lands and property to be insured? A. Yes. Q. Is the title to the land on which said buildings are situated in your name. A. Yes.

That by the terms of the application the plaintiff agreed that each of said questions was correctly answered, and that such valuations and statements were true, and a warranty upon her part, and that the acceptance of the risk and the issuance of the policy should be based solely upon such application, but that she answered falsely, in disregard of such conditions, whereby she has suffered a breach of the warranty, and thus rendered the policy void. The property insured is described in the policy as "situated on and confined to the premises now actually owned and occupied by the assured, to wit, lots 27 and 28, block 8, in Harlington addition to Mt. Tabor, Multnomah County, Oregon," and it is described in substantially the

* Decision rendered, May 1, 1897.

same manner in the complaint; but the evidence shows that the premises upon which the dwelling was located are correctly described as lots 27 and 28 in block 8, Harlem addition to East Portland, and it was further shown, over the objection of defendant,. that there was no such place as "Harlington addition to Mt.

Tabor."

Upon this state of the record, it is first contended that there is a complete and fatal variance between the pleadings and the proof, touching the description of the property covered by the policy of insurance, by reason whereof plaintiff is not entitled to recover. The objection goes to the identification of the locus in quo of the dwelling, and it is not a question whether the description is sufficient to carry title, or to identify property conveyed or transferred. It is never necessary, in insuring property, that the locality be fixed or established by such technical legal descriptions as are usually employed in conveyances of title; and it is not infrequently the case that insurance companies employ maps, for convenience in the designation and location of buildings and property for insurance purposes, which have no sort of reference to any public or legal surveys or plats, and descriptions by reference thereto are accounted sufficient. As it pertains to the location, and the question whether the loss is within the policy, the evident intention of the parties, to be gathered from the language used, in connection with the nature of the property and the uses and purposes to which it is devoted, will prevail 1 Wood, Ins., § 47. And it has been held in California that, if enough of the description is true to identify the property, other portions of it which are false may be disregarded, when the question is merely what property was insured: Hatch vs. Insurance Co., 67 Cal., 122, 2 May, Ins., § 420a. Omitting and disregarding all reference to "Harlington addition to Mt. Tabor," or to any subdivision thereof, we think there is enough left to identify the property insured; and it was pertinent to show that there was no such addition, but that Harlem addition to East Portland was the one to which reference should have been made. There would be left the following description, viz.: "A frame dwelling house situated on and confined to premises now actually owned and occupied by the assured;" and this is sufficient for the purposes of the insurance, and for a recovery in case of loss. There was a latent ambiguity, and the evidence offered was competent to explain it. It appeared from the testimony that plaintiff was not the owner in fee of the land upon which the dwelling was situated at the time the insurance was effected, but that she held a contract with the owners of the legal title for a conveyance by good and sufficient

deed, conditioned upon her completing payment therefor in certain installments and at designated dates; and it is contended that this discloses a state of affairs inimical to plaintiff's warranty touching the ownership and title. The warranty is, in substance, that plaintiff is the sole and undisputed owner of the lands and property insured, and that the title to the land is in her name. It goes to the ownership and title to the land, and the question is, do the record and proof show the warranty to be false? For, if they do, the plaintiff cannot recover. In Insurance Co. vs. Staats (102 Pa. St., 529), a purchaser at sheriff's sale subsequent to the purchase, but prior to the delivery of the sheriff's deed, represented to the company that the land was "owned by the applicant," and it was held that there was no such absence of title in the assured as that the representation would affect the validity of the policy. In Insurance Co. vs. Dougherty (id., 568), the assured purchased from executors a lot of ground upon which there was a building, paid the purchase money, received a receipt, and had gone into possession, but prior to the execution of the deed she had the building insured. By her application she represented that the title to the house and lot was in her name, and by the terms of the contract of insurance the answers and representations made in the application were taken as part of the contract and were warranted to be true; and the court held that, as the equitable title to the property was vested, it was, for all the purposes of the suit, equivalent to a fee. In Insurance Co. vs. Erb (112 Pa. St. 149), it was held that it was not essential that the assured should have been invested with the legal title, if he was the sole, absolute, and beneficial owner in equity; and this under a condition in the policy as follows: "If the property to be insured be held in trust or on commission, or be leasehold or other interest not amounting to absolute or sole ownership, * it must be so represented to the company, and expressed in the policy in writing; otherwise the insurance, as to such property, shall be void." In Insurance Co. vs. Dyches (56 Tex., 573), it was held that where the entire equitable right in or to the land is in the assured, and he is in a condition to enforce specific performance, there is no breach of the warranty. In Hough vs. Insurance Co. (29 Conn., 10), the assured represented by his application that the property insured was "his house," and the policy contained a condition that, "if the interest in the property to be insured is not absolute, it must be so represented to the company, and expressed in the policy in writing; otherwise the insurance shall be void." The legal title was, however, in another person, with whom he had at the time a parol contract for its purchase for an agreed price, part of which

* *