Sterling v. Lodge.

construction would also take away one of the safeguards by which the order is enabled to place each candidate upon his honor at the very time he is being introduced, and require from him a statement respecting the condition of his health, and thereby enable candidates who file applications for a renewal of membership to avoid this test; and in case any candidate of this class becomes ineligible through sickness, or otherwise, between the time his written application is signed and his certificate is ready for delivery, he might, notwithstanding such ineligibilty, become a member, and that, too, without any dissembling on his part. Whereas, construing section 110 as we have, all the provisions of the constitution, the written application, and the benefit certificate are harmonized and given effect. And this construction does not impose upon the applicants for renewal of membership any greater expense, burden, or inconvenience than the construction contended for by plaintiff, unless the mere taking of the obligation by a member is an inconvenience, which we do not think will be seriously contended.

In conclusion, we will say that the reason why a recovery cannot be had in this case, as the record now stands, may be briefly summed up as follows: First. Sterling voluntarily and of his own volition permitted his first certificate to lapse, and he thereby became suspended from the order; and the trial court instructed the jury, and properly so, that all rights under said certificate were forfeited, and a recovery could not be had upon it. Second. When the second certificate was received by the local camp, and Sterling notified to appear at the next ensuing lodge meeting of camp 53 for the purpose of taking the obligation and receiving the certificate, he failed to respond to the notice. Nor did he thereafter, even according to plaintiff's theory of the facts in the case, place himself in a position or make it possible for the officers of the camp to accept his money and deliver him the certificate, without a most flagrant violation of the rules and regulations of the or

Sterling v. Lodge.

der. Third. When Sterling died he was not, in fact, in law, nor in equity, a member of the order, for the reason that for more than 11 months he had not paid or tendered any dues and assessments, except the introduction fee of $5 paid on his application for renewal of membership. Nor had he up to the time of his death done anything, after the receipt of the certificate by the local camp, to relieve him from the payment of dues and assessments. Fourth. At the time of his death more than five months had elapsed since the certificate was received by the local camp, during which time Sterling failed to present himself at any of the lodge meetings to take the obligation and receive his certificate, as required by section 117, which provides that under no circumstances can a candidate defer taking the obligation for more than three months from date of certificate. And, fifth, because the second certificate had not become and was not an operative or completed contract, because not signed by the local consul commander or by Sterling, the applicant, and was not delivered, all of which were conditions precedent to give it effect.

For the reasons herein stated, the petition for a rehearing is overruled and denied.

STRAUP, J., concurs.

BARTCH, C. J.

(dissenting).-Notwithstanding

this second elaborate opinion, the fact still remains that the lodge has the money for dues, etc., paid it by the deceased in an honest endeavor to obtain insurance for the object of his bounty, while the beneficiary is deprived of it through mere technicalities resulting from the insured having been misled by the agent of the insurer. Upon an examination of all the evidence, and of other provisions of the constitution of the lodge than those referred to in this opinion of my brethren, I am convinced that a rehearing ought to be granted, and therefore dissent from denying the same.

INDEX.

ABANDONMENT. See PLEADING, 4; WATER and Water Courses,1, 2.

ACTION. See EXECUTORS AND ADMINISTRATORS.

ACTS OF BANKRUPTCY.

See BANKRUPTCY.

ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS.

ADVERSE POSSESSION:

1. Burden of Proof. Under Revised Statutes, section 2861, provid-
ing that in every action for the recovery of real property or the
possession thereof the person establishing a legal title shall be pre-
sumed to have been possessed thereof within the time required by
law, etc., the burden is on one claiming title by adverse possession
to prove the same, and not on the defendant to establish that he
was in possession under his legal title for the statutory period.
English v. Openshaw, 241.

2. Evidence-Deed. Where a warranty deed in favor of defendant
was regular on its face, it was admissible in an action to quiet title
without evidence being first introduced showing possession there-
under. English v. Openshaw, 241.

3.

4.

Letter. Where in an action to quiet title, plaintiff
claimed title by adverse possession, a letter written to defendant,
in which plaintiff recognized his interest in the land, was admis-
sible. English v. Openshaw, 241.

Sufficiency. Evidence reviewed, and held insufficient to
establish that plaintiff's possession of certain land in controversy
was adverse to defendant. English v. Openshaw, 241.

AGENCY. See PRINCIPAL AND AGENT.

AIDERS AND ABETTORS. See CRIMINAL LAW, 2, 3.

ALIMONY. See DIVORCE.

ALLOWANCE. See DIVORCE.

APPEAL. See PRACTICE, SUPREME COURT.

APPEARANCE.

Under Rev. St. 1898, section 3334, providing that a defendant appears
in action when he answers, demurs, or gives the plaintiff written
notice of his appearance, and which is substantially the provision
28 Utah-35]

(545)

APPEARANCE.-Continued

of the Illinois statute, where a corporation domiciled in Utah and
sued in Illinois appeared and filed a pleading asserting that it
had been sued by a wrong name, without challenging the court's
jurisdiction, it submitted to the jurisdiction of the Illinois court,
precluding it from assailing the judgment in an action thereon in
Utah. Richardson & Boynton Co. v. Hardware Co., 85.

BALLOTS. See ELECTIONS.

BANKRUPTCY.

In an action by a trustee in bankruptcy to recover a perference, a charge
that plaintiff must establish that the bankruptcy was insolvent at
the time of the transactions complained of; that the result of the
preference was to give defendants a greater percentage of their
claim than any other creditor of the same class; that defendants
had reasonable cause to believe that such was intended and that
such transactions occurred within four months of the filing of the
petition in bankruptcy; and that all such facts must be established
by preponderance of the evidence (which phrase was explained);
together with a further instruction defining “insolvency" in the
language of Bankruptcy Act July 1, 1898, c. 541, section 1, subd.
15, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3419), as insufficiency
of the debtor's property to pay his debts-fairly covered the entire
case, and properly submitted it to the jury. Wilkinson v. Ander-
son-Taylor Co., 346.

BENEFICIAL ASSOCIATIONS.

1. Action-Parties. Where a complainant, naming as defendants the
individual members of an unincorporated beneficial association al-
leged, and the evidence showed, that the association as such had
trust funds in its possession, which were collected from its mem-
bers to pay obligations of the character of the one in suit, and it
was sought to subject those funds to the payment of such obliga-
tion and the judgment as entered could only be satisfied out of the
property of the association, the proceedings were not subject to the
objection of attempting to hold the members of the association per-
sonally liable for the association's debts. Pearson v. Anderburg,
495.

2.

3.

A voluntary association cannot be sued in its name as
such, but can be brought into court in the name of its mem-
bers, or, if they are too numerous, a few of them may be made de-
fendants to represent the interests of all. Id. 495.

Survivorship. A cause of action in favor of a member
of a beneficial association to recover sick benefits payable to him
during his lifetime survives his death, and may be brought by
his administrator. Id. 495.

BENEFICIAL ASSOCIATIONS.-Continued.

5.

6.

An administrator of a deceased member of a bene-

ficial association may recover an allowance for funeral expenses
provided for by the laws of the association, but which are not de-
clared payable to any particular person. Id. 495.

Tribunals of Order. While members of a voluntary as-
sociation may restrict themselves as to matters incidental to the
operation of the association to remedies before tribunals created by
the association, such restriction cannot extend to the right to bene-
fits due the members under contract with the association, so as
to require them to exhaust the remedy provided by the tribunals
of the association as a condition precedent to suing for such bene-
fits. Id. 495.

The action of a beneficial association, which knew
of the illness and mental derangement of a member, in dropping
such member from its rolls without his knowledge or consent, and
without representation or hearing, because of his failure to pay
dues during a time when it failed to pay the sick benefits to which
he was entitled, was so irregular as to be grossly unjust, and did
not preclude the member's personal representative from suing to
recover the benefits notwithstanding a stipulation of the contract
of membership requiring the member to submit his grievances to
the tribunals of the association without resorting to the courts.
Id. 495.

7. Forfeiture-Estoppel. A beneficial association, which, with
knowledge of the sickness and mental derangement of a member, ac-
cepted arrearages of dues which placed him in good financial
standing, and received monthly dues for six months thereafter, was
estopped to insist on a forfeiture on account of such arrearages.
Id. 495.

BILLS AND NOTES. See PLEADING, 2.

A note secured by mortgage provided for payment of interest in quar-
terly installments at a certain bank, and that on default in such
payment the principal and all interest should become due at the
option of the holder. On transferring the note to plaintiff he re-
quested the obligors not to pay the interest at said bank, stating
that he would call for it. Held, that on plaintiff's failing to call
for the interest he was estopped from enforcing the terms of the
note. Lawrance v. Ward, 129.

BRIEFS. See PRACTICE, SUPREME COURT, 7.

BURDEN OF PROOF. See ADVERSE POSSESSION, 1; LIMITATIONS OF
ACTIONS, 3.