to the latter parties for the respective sums following: $315.04, $622.42, and $203.99, each bearing date the twenty-fifth day of February, 1882, and payable 90 days therefrom, with interest at the rate of 10 per cent. per annum; and contained a provision for the payment of a reasonable attorney's fee in case suit was instituted to collect it; and that both of said mortgages were, at the date of the execution of said contract, and had ever since been, wholly unsatisfied. Other issues were tendered by the answer, but it is unnecessary to notice them. The respondent, in his reply to said matter, in the answer averred that said appellant had, at the time the contract was executed, actual and personal notice of said incumbrances; that he conferred with the mortgagees, and that they assured him that they would interpose no objection to the said sale, and that each of the incumbrances could, by the decree of the court in the suit, be discharged and paid out of the agreed purchase price, which the appellant should be decreed to pay for the premises. The reply contained denials of other portions of the answer, but there was no other issue upon said matter of incumbrance than above mentioned. Testimony was taken in the case tending to prove and disprove the various issues between the parties. The circuit court heard the proofs and allegations, and decreed that the appellant pay into court immediately the sum of $3,000, and that execution issue therefor, and that said sum of money be applied by the clerk of the court to the satisfaction of the said mortgages in the order in which they were mentioned in the answer, and that the deed executed by the respondent and wife, a deed prepared and signed after the commencement of the suit, upon the payment into court of said $3,000, be delivered to the appellant; which is the decree appealed from. The only question of importance to be decided by this court is whether the appellant could equitably be compelled to accept the deed above referred to, and required to pay the sum stipulated. It was suggested at the hearing before this court that the vendor of real property could not enforce the payment of the purchase price in equity; but the rule seems to be otherwise. It proceeds upon the ground of a mutuality of remedies, the vendor in such cases having a right to compel the execution and delivery of the deed. The vendor may also enforce the undertaking of the vendee, although the substantial part of his relief is the recovery of money. Pom. Spec. Perf. Cont. § 6.

The authorities on the subject are very numerous and uniform except where the remedy has been limited by statute. The remedy of the vendor, however, like that of the vendee, depends upon the peculiar circumstances of the case. A court of equity ought not to interfere and compel the acceptance of a deed, and payment of the purchase money, where it would operate as a hardship upon the party, unless in strict conformity with his contract. In the case under consideration the appellant had agreed by the terms of the contract to purchase the half lot of land and pay for it $3,000,-$1,500 thereof

upon the execution of the deed, April 22, 1882, and the balance within. one year from the date of the contract, April 8, 1882,-and the respondent was to convey to him by a good and sufficient warranty deed of release and quitclaim, free from all incumbrances, the said half lot. The covenants in the agreement were mutual and dependent; neither party could compel the other to perform until he had performed upon his part. The property was incumbered t the time, and the deed first prepared by respondent was incomplete, but the latter difficulty was remedied immediately after the suit was commenced, and the former would not probably have prevented an enforcement of the payment of the money in accordance with the terms of the contract, if the court could have so applied it as to discharge the incumbrances. But the contract only provided for the payment of $1,500 at that time, which was entirely insufficient to pay off the first mortgage. The court decreed that the appellant pay the whole $3,000, but it had no right to do that. There is no power known to the law that could compel it. The deferred payment of $1,500 did not mature till April 8, 1883, nearly a year after the deed was required to be executed, and to compel the appellant to pay it at once imposed an obligation upon him he never stipulated to perform. He was to have a year in which to make that payment, without interest. The court, however, said he should pay it immediately, and this would not only be a hardship and loss, but it might be ruinous to a person of limited credit. Equity recognizes no such arbitrary authority as that. The great difficulty in the case arose out of the fact that the purchase price was inadequate to discharge the incumbrances. Had the $1,500 to be paid in hand been applied to the discharge of the incumbrances, it would have left about $300 still due and payable upon the first mortgage, and the second mortgage would have matured within a little more than a month thereafter; and when the second $1,500 was to become due by the terms of the contract, it would not have been sufficient by about a hundred dollars, as the appellant's counsel figures it, to discharge both incumbrances. Courts of equity may be willing and anxious in such cases to give relief, although the literal and exact terms of the contract have not been complied with by the party who seeks their aid, but they certainly will not advance money for such party, nor impose a severe hardship upon his adversary party. It was the duty of the respondent to have attended to that matter before he called upon the appellant to pay the money. He had covenanted to give a deed to the land, free from incumbrances, though his counsel says he was only to covenant against. incumbrances; but in either case good faith and fair dealing required that he should have paid off the incumbrances, or have reduced them to the amount of the purchase price to be paid for the land, and obtained such an extension of time for their payment that such purchase price would have discharged them when paid, in accordance with the terms of contract, before he began his suit.

The rule in Hinckley v. Smith, 51 N. Y. 21, is the correct one upon that subject. But the respondent's counsel claims that the appellant was cognizant of the fact of the incumbrances when he entered into the contract. The evidence is conflicting upon that subject; but suppose it preponderates in favor of the respondent, and that he only stipulated to give a deed containing a covenant against incumbrances, that would not relieve him from the obligation to convey a pure title to the property. His agreement to make a deed containing such a covenant was in effect an agreement that the property should be disincumbered. A covenant against incumbrance is an assurance that the property, at the time of the ensealing and delivery of the deed, is then free therefrom. That character of covenant is personal, and relates to the time of the execution of the conveyance, and is immedi ately broken if any incumbrance exists. The fact that the appellant knew of the existence of the mortgages may have been, as suggested by his counsel upon the argument, the reason and object of the stipulation in the agreement, that the respondent should give a deed free from all incumbrances. There is no pretense that the appellant assured the payment of the mortgages. The writing contradicts any intention of that kind. The respondent's counsel also claimed upon the argument that it did not appear that the full amount of the debts secured by the mortgages was unpaid, and that the burden of proof was on the appellant to show that it had not been paid; but it is enough to say, in answer to that position, that the allegations of the answer, averring that both of said mortgages were wholly unsatisfied, is not denied in the reply. Besides, the circuit judge who heard the case finds especially, in his fourth finding of fact, "that no part of either of said notes had been paid up to this date," which was June 19, 1884. I see no possible way to help the respondent out in this case. The difficulty is that he has not done equity. It would clearly be unjust to compel the appellant to accept the deed and pay the $3,000, in the condition in which the property was on said twenty-second day of April, 1882, with reference to the said incumbrances. The pretended parol understanding between the parties at the time the agreement was entered into, in the most favorable light, is very inconclusive. If there had been any understanding that the purchase price was to be applied to the discharge of the said mortgages, it ought to have been pleaded; but even then it is quite doubtful whether the court could, in view of the fact that the bargain between the parties was in writing, have attached any importance to it. Chancellor KENT once said that a contract could not rest partly in writing and partly in parol, and the experience of mankind has shown that the rule is a very good one indeed. I am of the opinion that the decree appealed from should be reversed, and the complaint dismissed.

WALDO, J., absent.

MISCONDUCT OF JURY DRINKING INTOXICATING LIQUORS.

Question not one to be heard on appeal.

Appeal from Multnomah county.
Alfred F. Sears, for appellant.

John M. Gearin, Dist. Atty., for respondent.

Bon.

BY THE COURT. The appellant was convicted of the crime of arA motion was made for a new trial, on the ground that one of the jurors had drank intoxicating liquors during the trial, and also on the ground of the insufficiency of the evidence to justify the verdict. The motion was denied, hence this appeal. The questions raised are not the subject of an appeal, as has just been shown in the case of Kearney v. Snodgrass, ante, 309, and the authorities there cited.

(12 Or. 40)

BENEO and others v. YESLER and others.

Filed February 17, 1885.

LIFE INSURANCE - FOREIGN COMPANY-STATUTE OF WASHINGTON TERRITORY"DOING BUSINESS"-EFFECT OF ACCEPTING PROMISSORY NOTE BY INSURANCE AGENT.

The act of insuring a man's life in Washington Territory by a Kansas company, the name, etc., of the man being sent into the home office by the soliciting agent of the company, and the policy thereupon issued there and sent out to Seattle, would not be "doing business" within the meaning of the statute of Washington Territory, but the subsequent accepting by such agent from the assured of a promissory note in payment of premium, would be "doing business" within said meaning. THAYER, J., dissenting.

Appeal from Multnomah county.

W. B. Gilbert, for appellant.

Henry Ach, for respondent.

LORD, J. This was an action upon a promissory note made at Seattle, Washington Territory, to one A. B. Covalt, and assigned after due to the plaintiff.

The defense set up is that the note was made in payment of a premium on a life insurance held by the defendant Yesler in a Kansas life insurance company; that the company had an agent at Seattle, Washington Territory, who solicited the insurance in January, 1876, and the note in question was given in August, 1876, at Seattle, in payment of the second semi-annual premium on the policy, and that the note was void, for the reason that the said insurance company was a foreign insurance company, and had not complied with the laws of Washington Territory in regard to foreign insurance companies doing business in the territory.

It appears by the bill of exceptions that the said Covalt, mentioned in the note, and one Guion, were agents of Alliance Mutual Life Assurance Society, a corporation organized and existing under the laws of

the state of Kansas, and were engaged in soliciting life insurance for said company at Seattle, Washington Territory, and in making and taking applications therefor, and in collecting and receipting for premiums thereon. That in January, 1876, at Seattle, in said territory, the said Guion, as agent of said company, received the application of the defendant Yesler, together with $671, the amount of the first premium, for which he gave the said Yesler a receipt, and then turned over said application, and the money so received, to the said Covalt, as agent of the said company, who forwarded the same to Leavenworth, Kansas, for examination and acceptance by the company. That the said company accepted the same, and thereupon issued a policy, which was sent by mail; whether to the defendant Yesler, or to their agent, Covalt, to deliver to Yesler, the evidence is conflicting. That when the second semi-annual premium of $671 became due and payable on the said policy, in August, 1876, the said Covalt called upon the said Yesler for the payment of said premium, who, not having the requisite funds on hand at that time to pay the same, thereupon executed and delivered to the said Covalt the promissory note in ques tion. That the said note was sent to the company, and retained by them until it became due and payable, and then forwarded to Seattle for collection; and, upon default of payment being made, the company charged the amount of the same to the account of the said Covalt.

Upon this state of facts the court below instructed the jury that the taking of this note was doing insurance business within the territory, and the result was a verdict and judgment for the defendant.

The contention of the plaintiff is that the taking of a promissory note in payment of a premium on an insurance policy is not "doing insurance business." Upon the facts as presented by this record, it would seem that the agent was not authorized to make a binding contract of insurance. As between him and the company, he was em powered to solicit and receive applications for insurance, and receipt for the premium money therefor, and to forward them to the company for their approval or rejection.

In Armstrong v. State Ins. Co. 61 Iowa, 215, S. C. 16 N. W. Rep. 94, it was held that the agent of an insurance company, who was authorized to take applications for insurance, and receive and receipt for premiums, and forward applications and premiums, and receive from the company policies of insurance when issued, and deliver them to the assured, that such agent had no powers or authority to bind the company by a contract of insurance. Dickinson Co. v. Mississippi Valley Ins. Co. 41 Iowa, 286; Critchett v. American Ins. Co. 53 Iowa, 404; S. C. 5 N. W. Rep. 543; Ayres v. Hartford Ins. Co. 17 Iowa, 176; Reynolds v. Continental Ins. Co. 36 Mich. 131; Morse v. St. Paul F. & M. Ins. Co. 21 Minn. 407.

When the defendant Yesler presented and delivered his application, and the premium money therefor, to the agent, to be by him for warded to the company for its acceptance or rejection, he knew and