required to pay the taxes and mechanic's lien upon the homestead, which were paid off by the bank. On the same day the bank took two renewal notes, of $4,434. 10 each, for the balance due it upon the old debt of $10.000, contracted previous to 1890, and upon which payments had been made, and these two renewal notes, together with the notes for the $3.200, and twelve notes for $50.00 each, for the amount which the bank agreed to loan in the future, were all included in the new mortgage, which covered the homestead alone, while the two notes of $4.434.10 each remained secured by the deed previously given to Auld in trust for the bank as renewals of the original debt. On the 21st day of March, 1896, the bank brought a suit in foreclosure case No. 7,907 against Price and wife to foreclose the mortgage last given, to-wit, upon the homestead, and in said action took a personal judgment upon all of said notes against Price and wife for $16,348.44, and an order for the sale of the homestead and application of the proceeds. After bringing said action, the bank brought another action, No. 7,908, based upon the two renewal notes of $4,434.10 each, to recover a personal judgment against Price and wife thereon, and to foreclose the deed given to Auld as a mortgage to secure the same; and after the rendition of said judgment of $16,348.44, in said action No. 7,908, the bank recovered judgment in the other action brought subsequently upon said two notes, and the interest thereon, which last judgment amounted to $11,674.86, against Price and his wife, and in said action a foreclosure of said deed was decreed, and the property therein described was ordered sold, and the proceeds applied to said last-named judgment. Soon after the rendition of the last judgment a stipulation was entered into between the bank and Price and wife, in which it was agreed as follows: "(1) That execution shall be stayed on such judgment of foreclosure in said cause No. 7.907 for ten months from the rendition thereof; (2) that in case the said John M. Price and Eliza J. Price shall fail to keep the taxes promptly paid on the real estate herein before described in said first entitled cause No. 7,907, and to keep said premises well and adequately insured for the benefit of the said plaintiff bank, then, and in such event or failure, said bank may pay all such taxes and insurance, and keep the said property free and clear of all taxes and liens, and adequately insured, up to the time of the sale of such property on execution under such judgment." It was therein further agreed that said bank was to retain in its possession said policies of insurance upon the life of said John M. Price as collateral security, and, if the said policies should mature and payment of death losses thereon be made before the sale of said homestead under execution, the proceeds of the policies should be applied on said judgment in said case No. 7,907; and in case of sale thereof before the said policies should mature, and if the proceeds of the sale should be insuffi

cient to satisfy such judgment in case No. 7,907, then said policies of insurance were still to be retained by the bank, "to secure whatever deficiency there may then remain unpaid on such judgment 7,907, until such deficiency is fully paid, or until the said life policies mature."

ELLIS, J. (after stating the facts): The insurance policy in the New York Life Insurance Company had been paid up since 1874. It was the property of Eliza J. Price, the beneficiary named therein. The unconditional assignment to the bank of January 19, 1894, was void because such bank could not have an insurable interest in the life of John M. Price. Insurance Co. v. Sturges, 18 Kan. 93. Parol evidence was admissible for the purpose of showing that, although such assignment was absolute on its face, the real intent of the parties was that the insurance policy should be turned over to the bank, under such assignment for the purpose of collateral security merely. To show such an intention, it was necessary to prove an agreement to that effect between the bank and the owner of the policy, Eliza J. Price; for there was no evidence in the case that John M. Price had authority to act as her agent in that behalf, and his agency could not be presumed from the mere fact that he was her husband. The only evidence in the record showing any agreement other than an unconditional assignment on the part of Mrs. Price is the stipulation bearing date May 21, 1897, and entered into some time after that date. That stipulation, if based upon a sufficient consideration, might be held to be a ratification of a former agreement which seems to have been entered into with John M. Price, to the effect that the bank should hold the policy as collateral security, subject, however, to the reservation that it should only be held as collateral security for the payment of whatever should be justly and legally due on the judgment rendered in action No. 7,907; for such were the express terms of the stipulation. The court holds in this case that at the time of the execution of such stipulation that judgment was extinguished; that the debt thereby evidenced had been merged in judgment 7.908. rendered later by the district court of Atchison county, in an action between the same parties. For the reasons for such decision and the authorities upon which the same is based, reference is hereby made to the opinion of Mr. Justice Greene in the case of Price v. Bank (No. 11.887, rendered at the present term of this court) 64 Pac. Rep. 637.

Now, the only consideration for such stipulation is the agreement on the part of the bank to forbear to issue execution upon said judgment 7,907 for the period of 10 months from the date of its rendition. Because the judgment was extinguished, because it no longer existed, the plaintiff had no right to cause an execution to issue upon it within 10 months or at any other time. An agreement to forbear to do an act which a party has no legal right to do cannot

constitute a sufficient consideration for a promise and undertaking on the part of another. "In order to constitute forbearance a valuable consideration, there must be a subsisting legal right in the claimant which he agrees to forbear; for, if the claim be invalid or illegal, the forbearance is ineffectual. 6 Am. & Eng. Enc. Law (2d Ed.), 742, and cases cited. See, also, Gould v. Armstrong, 2 Hall, 266; Chit. Cont. 35, 36; Bates v. Sandy, 27 Ill. App. 552, and cases cited; Haynes v. Thom, 8 Fost. 386; May v. Coffin, 4 Mass. 341, 347; Warder v. Tucker. 7 Mass. 449; Robinson v. Jewett, 116 N. Y. 40, 22 N. E. Rep. 224; Widiman v. Brown, 83 Mich. 241, 47 N. W. Rep. 231; Cowper v. Green, 7 Mees. & W、 633; McDonald v. Neilson, 2 Cow. 140; Crosby v. Wood, 6 N. Y. 369; Cline v. Templeton, 78 Ky. 550; Schroeder v. Fink, 60 Md. 436; Gunning v. Royal, 59 Miss. 45; Davisson v. Ford, 23 W. Va. 617; Appeal of Lukens (Pa.), 22 Atl. Rep. 892, 13 L. R. A. 581.

In the case of Wade v. Simeon, 2 C. B. 548, the declaration averred that the plaintiff bad brought an action, and in consideration of the new promise had forborne to prosecute the case thus commenced. The court held that the previous action could not have been maintained, and in the opinion Chief Justice Tindal said: "In order to constitute a binding promise, the plaintiff must show a good consideration,-something beneficial to the defendant, or detrimental to the plaintiff. Detrimental to the plaintiff it cannot be, if he has no cause of action; and beneficial to the defendant it cannot be, for, in contemplation of law, the defense, upon such an admitted state of facts, must be successful."

In the case of Graham v. Johnson, L. R. 8 Eq. 36, the defendant held a bond executed by the plaintiff, which the latter was entitled to have canceled as being voluntary. At the plaintiff's request the defendant forbore suit on the bond, the plaintiff agreeing to pay from an expected inheritance. It was held, nevertheless, that the plaintiff was entitled to a decree of cancellation, and that the promise to pay the defendant was not binding. Lord Romilly, M. R., in rendering the opinion, said: "The question I have to consider is whether, assuming, as I must assume, that the plaintiff when he made the promise was ignorant that the court of chancery would restrain an action on the bond without requiring him to pay off what had been paid by Barlow to the obligee, his promise, made in consideration of Barlow's forbearance to sue, is binding on him. I think it is not." And, following, the court expressly held that, because the action could not have been maintained, the agreement to forbear would not be a consideration for a promise of the defendant to pay.

We have examined the case of Callisher v. Bischoffsheim, L. R. 5 Q. B. 449, and Ockford v. Barellis, 25 Law T. (N. S.) 504, which are sometimes quoted as antagonizing, though they do not overrule, Wade v. Simeon, supra, and Graham v. Johnson, supra. They were considered and

decided as cases of compromise, and are clearly distinguishable from the case at bar.

In Bank v. Colcord, 15 N. H. 119, the court held that forbearance to sue is not a good consideration for a promise where there is no debt in existence.

In Gould v. Armstrong, supra, the court held: "A promise to forbear from prosecuting a suit which could not be maintained would, of course, be without consideration, and so not binding." In Chit. Cont., supra, the rule is laid down that, in order to render the agreement to forbear and the forbearance of a claim a sufficient consideration for a new promise, it is essential that the demand forborne should be sustainable at law or in equity, and the consideration will fail if the demand is without foundation.

In Haynes v. Thom, supra, the court held: “A promissory note, given to discharge a merely supposed liability, or to avoid an ideal danger. which has no foundation in fact or in law, is without consideration." And in the same case the court said: "If the note was given under a misapprehension of the defendant's liability, and with no valid consideration passing between the parties, he is not bound to pay it. An ideal danger, which has no foundation tn fact or in law, can form no consideration for a note."

In Appeal of Lukens, supra, the Supreme Court of Pennsylvania held: “Abandonment of legal proceedings, which are without merit, is no consideration for the revocation of a valid and binding contract."

The case of Prout v. Fire Dist., 154 Mass. 450, 28 N. E. Rep. 679, was purely one of compromise. The court said: "The plaintiff's claim, whether on a final determination it might or might not be found to be valid. was sufficiently substantial to furnish a good consideration for the promise." In the same opinion occurs the following: "The case of Palfrey v. Railroad Co., 4 Allen, 55 is to be distinguished on the ground that there it was plain that the plaintiff had no real claim to be compromised, and Wade v. Simeon, 2 C. B. 548, rests on the same ground."

In Robinson v. Jewett, supra, it was decided that the performance of an act which the party is under a legal obligation to perform cannot constitute a consideration for a new promise.

In Moon v. Martin, 122 Ind. 211, 23 N. E. Rep. 668, the court sustained a compromise of a suit actually commenced, and held that the discontinuance of the suit was a sufficient consideration for a promise to pay money. But in the same case the court held: "A promise to give something for the compromise of a claim, about which there is merely a dispute and controversy, and for which there is no legal foundation whatever, is not sufficient to sustain a suit at law. Jarvis v. Sutton. 3 Ind. 289; Mortgage Co. v. Henderson, 111 Ind. 24, 12 N. E. Rep. 88, and cases cited. Emery v. Royal, 117 Ind. 290, 20 N. E. Rep. 150, and cases cited."

In Cline v. Templeton, supra, the court said:

"It is laid down, both in Parsons on Contracts and in Chitty on Contracts, that an agreement to forbear to prosecute a claim which is wholly and certainly unsustainable at law or in equity is no consideration for a promise. * * * This proposition appears to be so well established that further citation of authorities seems to us unnecessary."

In Schroeder v. Fink, supra, defendant's father died owing plaintiff, and the latter threatened suit. In consideration of his forbearance, defendants gave their note in compromise of the claim. The estate of deceased was insolvent, and plaintiff could have no action against defendants. In the action upon the new note the court said: "There was no consideration for the new promise. * * * Defendants could not be held liable to pay."

In Gunning v. Royal, supra, it was held that "the existence of a dispute or controversy between parties is not a sufficient consideration to support a promise to pay money in settlement of it, where no valid demand for anything whatever exists in favor of the promisee."

66

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In Davisson v. Ford, supra the syllabus reads: If there is no foundation for such claim of liability, then the promise made to settle this assumed liability has no sufficient consideration to sustain it, and no suit can be based on such promise." And at page 627 the court said: "But, to make such consideration good, it is not only necessary that the dispute should be one in which one party sets up that there was a liability on the other, but if it be assumed that such liability exists, when in fact or law there is no foundation for such liability, a promise made by the party who is thus claimed to be liable, but who clearly is not liable, either in law or equity, would be a promise made on no valuable or sufficient consideration, and it could not be enforced by suit." "As the consideration must have some value and reality, the assumption of a supposed danger or liability, which has no foundation in law or in fact, is not a valuable or sufficient consideration, nor is the performence of that which the party was under a previous valid legal obligation to do; and where one, through mistake of the law acknowledges himself under an obligation which the law does not impose, he is not bound by such promise." 1 Pars. Cont. 437, 439, and cases cited. See, also, Warder v. Tucker, supra.

Now, in the case at bar, the bank did not stipulate to refrain from doing any act which it had a legal right to do. Mrs. Price, supposing herself liable to pay the judgment rendered in 7,907, agreed to turn over to the bahk the insurance policy in controversy in this case, with the understanding that the proceeds of such policy should be applied by the bank in satisfaction of such extinguished judgment. As the judgment itself had no legal existence, the funds could not have been so applied, and it is certain that she did acknowledge herself "under no obligation which the law does not impose," for which reason she "is not

bound by such promise." For these reasons the judgment of the district court will be reversed, and the case remanded, with directions to enter judgment in the court below in favor of Eliza J. Price and against the defendant, the First National Bank of Atchison, Kansas, in accordance with this opinion. All the justices concurring.

NOTE.-Recent Cases on the Validity as a Valuable Consideration to Support a Contract of an Agreement to Forbear.-Forbearance is a valuable consideration to support a contract whenever there is a legal or doubtful right in the claimant which is enforceable at the time of the agreement, but which he agrees to forbear. For instance a promise in writing to pay the debt of another, in consideration of forbearance to sue is founded on sufficient consideration and is valid in law. But if the creditor has not the legal right to sue at any time during which he promises to forbear suit, the promise to pay in consideration of such forbearance is without consideration, and consequently void. Martin v. Black, 20 Ala. 309. It is no objection to the validity of the defendant's agreement that there was no particular time specified as the period of forbearance. The law presumes that it shall be for a reasonable time. Hakes v. Hotchkiss, 23 Vt. 231; Moore v. Kenney, 83 Me. 80; Strong v. Sheffield, 144 N. Y. 392; Howe v. Taggart, 133 Mass. 284. It must be borne in mind, however, that a promise of forbearance, in order to constitute a sufficient consideration for a promise must be for a reasonable time. A "short time," for instance, would not be a good consideration as the promisor might bring suit in an hour after the promise was made. Gates v. Hackethal, 57 Ill. 534.

The exact limits of this subject will be suggested by the following carefully selected cases. We shall confine the citation of authorities, however, to cases involving the forbearance of legal remedies. For instance, forbearance to eject a tenant at will for nonpayment of rent is a good consideration to a guarantor of past and future rent. Vinal v. Richardson, 95 Mass. 521. A agreed to pay what he owed to B, and also the debt of another, the money to be sent by express within a week. B agreed to wait for a week. Held, that B's promise was upon a good consideration, and that a suit brought by him was prematurely brought. Leslie v. Conway, 59 Cal. 442; Morgan v. Bank, 44 Ill. App. 582. There must of course be an agreement to forbear, not a mere forbearanee. Thus a mere forbearance by a creditor of a deceased person to pursue his claim against the estate, there being no agreement on his part to that effect, is not a sufficient consideration to support a promise by the widow of deceased to pay the claim. Shadburne v. Daly, 76 Cal. 355. When a creditor, as surety of an insolvent debtor, having in his hands property of the debtor, which he desires to retain or have applied on his claim, promises another creditor that, if he will not institute legal proceedings against the common debtor, he will pay the debt, the promise is founded on a sufficient consideration and, if accepted, will constitute a valid contract. Mathews v. Seaver, 34 Neb. 592. Forbearance of execution on a judgment is a sufficient consideration for the surrender of a right of action for an alleged breach of contract. Oldham v. Kirchner, 79 N. C. 106. A promise by a third mortgagee to forbear foreclosing is sufficient to support a promise by a second mortgagee to keep the interest on all senior mortgages paid. Burke v. Dillon,

92 Iowa, 557. Where in consideration of the holder of a junior trust deed agreeing to pay the interest on a prior trust deed, the holder of the latter agrees not to foreclose until the junior incumbrancer has had time to sell of certain nursery stock on the premises in the ordinary course of business, the forbearance will be construed to be for a reasonable time, and will support the contract. Chiles v. Wallace, 83 Mo. 84. One who has made a contract in consideration that another will forbear to enforce a legal right which he is pursuing cannot have relief from his contract on the ground that the motives of the second person in pursuing his right were blame worthy. BenLer v. Van Norden, 27 La. Ann. 473.

We now note the exception announced in the prin. cipal case that an agreement to forbear from doing what one has no legal right to do or a promise to do what one is already under legal obligation to do, is not a valuable consideration to support a contract to do something in return. For instance, an agreement not to sue on a note, which is due, in consideration of the payment at the end of each year of interest not exceeding the rate provided for by the note, is with. out consideration. Holmes v. Boyd, 90 Ind. 332. A contact between a city contractor, for the construction of a sewer in a street, and a railway company having a right of way over the street, that the contractor will pay the company for supporting its tracks while he builds the sewer is without consideration and void, since the railroad right of way is subject to the paramout right of the city to build the sewer, and it is incumbent on the company to protect its own tracks. Kansas City, etc. Ry. Co. v. Morley, 45 Mo. App. 304. A promise made by the owner of property in order to obtain possession thereof from one wrongfully withholding it is without consideration, though the party withho.ding it did not know of the ownership. Fink v. Smith, 170 Pa. St. 124. The court in this case said: "A promise made by the owner to obtain possession of his goods which at the time are wrongfully withheld from him, is without consideration. The learned judge below, however, assumes that there is no evidence that Fink knew the property to belong to Smith, and therefore the contract should be treated as a compromise of doubtful litigation, which is a good consideration to support a contract. But the error in this view is, that Fink's wrongful possession did not depend on what he knew, but on the fact, was it Smith's property? Had he demanded it from him who wrongfully detained it? If these were the facts, and they are not denied. then, there was no consideration for Smith's promise, for no benefit passed to Smith, and Fink sustained no loss by the contract; to hold that the abandonment of a wholly wrongful detention of another's property can form the basis of a compromise contract with the owner is direct encouragement to the commission of wrong for profit, and for this very reason the law holds the contract to be without consideration." An agreement by cestui que trust to pay the trustee commissions on the income received and paid out by him, by which no duties are imposed on the trustee other than such as he is bound to perform by virtue of his office, is without consideration. Wildey v. Robinson, 85 Hun, 362. A contract between the guardian of an insane husband and the wife that the latter shall care for the husband and receive a certain sum for her services, is without consideration and void. She owes the services independently of contract. Grant v. Green, 41 Iowa, 88. A parol contract by which a father agreed to convey to his infant son certain

land if the son would remain with the father and assist him until the son's marriage, was not without consideration or obligation on the father because of the minority of the son. Lafollett v. Kyle, 51 Ind. 446. Where defendants had contracted to store and care for the property in controversy for one year and had agreed to deliver the same on demand to plaintiff, without claiming a lien thereon, a further agreement to so store and care for such property for a lien for such services is without consideration. Esterly Machine Co. v. Pringle, 41 Neb. 265. Where a party gave to a constable his written obligation to pay a sum of money, the mere consideration of which was the forbearance on the part of the officer from levying a writ of attachment on the property of a third person, and the evidence showed that there was no intention on the part of the officer to make the levy, the property being exempt from execution, it was held that the contract was void. Hennesey v. Hill, 52 Ill. 281. An agreement by a debtor not to go into bankruptcy and thereby be discharged from a certain debt, or at least imperil its collection, furnishes a sufficient consideration to support a contract by the creditor to take less for the debt than the full amount thereof. Dawson v. Beall, 68 Ga. 328.

Cases on this subject might be cited ad infinitum, but while they all evidence a wide diversity of facts, yet they all come within the principles announced in the cases already cited. If one has a right which he can legally enforce, his forbearance to enforce it is a valuable consideration to support a contract. There must of course be the agreement to forbear and the right of the promisor must be clear and free from doubt; but in every such ease, whatever may be the statement of facts, the agreement to forbear will support a contract.

JETSAM AND FLOTSAM.

SEMI-ANNUAL BANKRUPTCY REPORT. There is, perhaps, no better barometer of business conditions prevailing throughout the United States than disclosed in the reports of the practical operation of the bankruptcy law, made by the referees and clerks of the federal courts. The summary of the semi annual reports of this business for the period ending March 31, 1901, recently submitted to the attorney general by E. C. Brandenburg, the well. known author and expert, in charge of bankruptcy matters in the department of justice, discloses some interesting facts. It appears that during this period 9,516 voluntary petitions were filed, as against 8,000 for the preceding six months, 12,120 for the six months ending March 31, 1900, 10,124 for the six months ending September 30, 1899, and 9,052 for the six months ending March 31, 1899, thus showing no appreciable variation from the average number of petitions filed since the law went into operation, though it is over 2,600 less than for the correspond. ing period of last year. The report shows furthermore that a large percentage of those taking advan tage of the voluntary feature of the law are old insolvents, who are seeking this means of resuscitating themselves in the business world, though it is practi cally impossible to definitely state the exact number. Mr. Brandenburg, by reason of his intimate relations with the subject has kept in close touch with the business interests, and states that it may be safely said that with one or two exceptions, for which congress will doubtless make provision at an early date, the law is meeting with almost universal approba

tion. As time passes its superiority over many of the State insolvency and assignment laws in reducing the expense of administration to a minimum, with the resultant of maximum dividends, together with the disappearance of preferences, either through legal proceedings or fraud, is redounding to the advantage of the business world. Nearly every feature of any consequence in the law has now been interpreted by the federal courts throughout the country, while the United States Supreme Court has passed upon several fundamental questions, thus placing congress in a position to act advisedly upon the question of amendments when suggested to that body at its coming session. The experience gained by the commercial interests under the present law has afforded a keener insight into its practical advantages than was expected or could have been anticipated, and while the existence of the present law is no guaranty against fraud, or that the dishonest debtor will not endeavor to use its machinery to his advantage, and to the detriment of the creditor whenever possible, yet the opportunities under the various State assignment and insolvency laws were so much greater and the frauds frequently so much more flagrant, that the federal law has come to be looked upon as one of the most beneficent and advantageous to the business world that has been placed upon our statute books for many years.

Mr. Brandenburg adds, that as a rule the number of petitions in bankruptcy vary with the States having the greatest population and amount of business. Thus the States owing the greatest number of voluntary petitions filed during the last six months are: Illinois 1,312, New York 1,263, Massachusetts 1,000, Iowa 460, Ohio 439, and Alabama 422; while the lowest number are shown in the State of Nevada where none were filed. Arizona and Hawaii 2 each, Delaware 5, New Mexico 8 and Idaho 10. Of the involuntary petitions the greatest number were filed in the following States: New York 230, Pennsylvania 132, Illinois 70, Massachusetts 52, Kentucky 50, and Georgia and Texas 48 each; while in the States of Kansas and Nevada no petitions were filed, and in Hawaii and New Mexico 1 each, and Delaware, In dian Territory, North Dakota and Oregon 2 each.

BOOK REVIEWS.

AMERICAN DIGEST.

Vol. 1900 B of the American Digest covering the period from April 1st to September 30, 1900, has just come to our attention. The change from one volume to two volumes a year of this publication was made in 1899 because of the extremely unwieldy size into which they were growing. The semi-annual volume, however, is fast approaching the same size of the annual volumes of a few years ago. This certainly speaks volumes" for the marvelous increase of litigation in the United States, and furnishes a final argument against the oft repeated assertion that litigation is decreasing and the legall business

by the West Publishing Company in the prepara tion of this digest. The Century edition of the American Digest with its annual continuations are undoubtedly the most valuable tools of the American lawyer. Published by the West Publishing Company, St. Paul, Minn.

BOOKS RECEIVED.

The Tax Law of the State of New York, being L, 1896, ch. 908, entitled "An Act in Relation to Taxation, Constituting ch. 24, of the General Laws," with Amendments of 1897, 1898, 1899, 1900 and 1901. Annotated with all the decisions since the passage of such Act to and including Vol. 166 N. With Y. 494, 59 App. Div. 288, and 34 Misc. 432. forms for lawyers, assessors, collectors and other officers. By H. Noyes Greene, of the Troy Bar, with a chapter on the powers and duties of assessors, by J. Newton Fiero, Counsel for the State Board of Tax Commissioners; author of "Special Actions and Special Proceedings." Second Edition. Albany, N. Y. Matthew Bender, 1901. Sheep, pp. 349. Price, $3.00. Review will fol low.

The American State Reports, containing the cases of general value and authority subsequent to those contained in the "American Decisions" and the "American Reports," derided in the courts of last resort of the several States. Selected, reported, and annotated, by A/C. Freeman, and the associate editors of the "American Decisions." Vol. 78. San Francisco. Bancroft. Whitney Company, Law Publishers and Law Booksellers, 1901.

The Civil Service Law of the State of New York. A treatise upon the law as to appointments to office, removals from office, and tenure in office, as embodied in the New York Civil Service Law and the "Veteran" Laws, with citations to all adjudicated cases in New York, and Copious References to Analogous Statutes and to Decisions by the Federal Courts, and Courts of other States, and containing the New York State Civil Service Rules and Classification. By William Miller Collier, President of the New York State Civil Service Commission; author of "Collier on Bankruptcy;" editor of "The American Bankruptcy Reports," etc. Albany, N. Y. Matthew Bender 1901. Buckram, pp. 440, price $4.50. Review will follow.