while the claim is that James Osborne was born in Morrisania. It is manifest that the incident which this witness relates as coming from her father concerning the second wife of Abraham Osborne cannot be reconciled with the other facts in the case. In the deposition of Miranda M. Osborne, the wife of S. Wallace Osborne, who was a son of Solomon E. Osborne, the witness testified that from information derived from statements made by Solomon E. Osborne and Lewis K. Osborne their father, Abraham Osborne, married a second time. Being asked how many children were born by the second marriage, she replied she never heard of more than one boy. She did not know his Christian name. Heard he ran away and went to sea. This witness resided at East Norwalk, Conn. In the deposition of Mrs. Henry T. Burtis, the daughter of James H. Burtis and the granddaughter of Horace Osborne, the witness testified that she had heard in her father's family that her grandfather, Abraham Osborne, married a second time, and had issue a boy named James, who ran away and went to sea. This witness resided at West Norwalk, Conn. In the deposition of Mrs. Elbert Brinckerhoff, a stepdaughter of James H. Osborne, the witness testified that she was acquainted with Rosalinda, the widow of Northrop Osborne. She was asked if she had heard from Rosalinda Osborne, or any of the direct members of the Osborne family, that Abraham Osborne married a second time. She replied that she had. She heard Rosalinda Osborne make such a remark, and relates the circumstances. She says: "The occasion of the conversation between mother and Rosalinda Osborne was the old lady's straitened circumstances, she having lost her property, and being dependent upon her own resources, and she wanted to know why some members of the family which she had reared, meaning the Osborne brothers, did not help her. Her own family were all girls, but Northrop Osborne brought up the boys and taught each one their trade. She said they were all well to do, and it seemed as though they could help her so that she would not have to work in her old age. Then there was another child, and she, speaking confidentially to my mother, wanted to know how he was situated. She had heard that he went west, and, if my brother knew where he was, she would like to know whether he was doing well." This witness lived at New Canaan, Conn. In the deposition of Mrs. Dena Osborne, the wife of William E. Osborne, who was the son of Solomon E. Osborne, the witness testified that she had heard her father-in-law say that his father had a second wife; heard him talk of a son of his father by this second marriage; heard him say his name was James. This witness resided in Brooklyn, N. Y. In the deposition of William E. Osborne, a son of Solomon E. Osborne, the witness testified that, from information obtained from his family, his grandfather, Abraham Osborne, married a second time. There was a child born from this second marriage, and he heard him spoken of as James. Heard his father say that his boy went away when he was about 16 years of age-between 16 and 17-and that nothing was heard of him from that time to the time he was telling the story. This witness resided at Brooklyn, N. Y. In the deposition of James R. Gray, who was not a member of the family, the witness testified that he formerly lived in Morrisania, and that he knew a Louis K. Osborne who lived in Morrisania during 1850 and 1860. He had a wife who was crippled by being scalded, and she could not get out of the bed without help. It was part of the duty of the witness to help lift her, and he used to go and help the husband lift her out of bed. This Louis K. Osborne had a brother named James, who traveled a good deal. Witness believed he went a number of times; but would come back and stay a while, and then go again. This witness was not certain that he had ever been introduced to him. Were the Osbornes referred to in the testimony of the witness Gray the same Osbornes referred to in the testimony of the witness Cauldwell? Both witnesses said that the Louis K. Osborne they knew lived in Morrisania between 1850 and 1860. But the Louis K. Osborne referred to in the testimony of the witness Gray had a wife who was crippled by being scalded so that she could not get out of bed without help, while the Louis K. Osborne referred to in the testimony of the witness Cauldwell was a young man of 25 or 26 years of age, and, the witness thought, was unmarried. The first Louis K. Osborne had a brother who traveled a great deal. The witness believed he went a number of times. He would come back, stay a while, and then go again. The second Louis K. Osborne had a relative whom the witness Cauldwell thought was a half-brother. This half-brother went away in 1852 and returned in 1857. He never made any other trips away from there but this one. He afterwards went away. Said he was going to California. In the testimony of William E. Osborne he referred to a James Osborne, 'who, his father said, went away when he was about 16 or 17 years of age, and nothing was heard of him from that time until the time his father was telling the story. Conceding that in a case of this character the law is most liberal in admitting and construing evidence of a reputation of marriage and kinship of decedents, nevertheless this evidence by reputation must be reasonably certain as to the identity of the individuals with respect to whom the reputation of kinship is sought to be established. In this case the testimony is clearly insufficient to establish the identity of the Lewis or Louis K. Osborne who was a relative of the complainants, or the identity of James Osborne, who was the half-brother of Lewis or Louis K. Osborne, the relative of the complainants; and the testimony is equally insufficient if it does not positively refute the claim of the complainants that their ancestor, Abraham Osborne, was by a second wife the father of James Osborne who was born in Morrisania in 1835 and died in Seattle in 1881. We know nothing whatever of this second wife. Her name is not given, and there is no information concerning her marriage to Abraham Osborne, nor is there any evidence of cohabitation or a reputation in the community where they resided or had their home that they were husband and wife, or that they were generally recognized and received as such by their neighbors and acquaintances. What there is at most is a mere tradition that Abraham Osborne was married a second time, and that by this second marriage there was issue a boy named James. In Stein v. Bowman, 13 Pet. 209, 10 L. Ed. 129, the Supreme Court of the United States had before it a question as to the admission of testimony concerning such a tradition. The court said: "It is not every statement or tradition in a family that can be admitted as evidence; the tradition must be from persons having such a connection with the party to whom it relates that it is natural and likely, from their domestic habits and connections, that they are speaking the truth, and that they could not be mistaken." In this case we are asked to give credence to a tradition without any substantial identity as to the person who is supposed to have become the second wife, and there are no facts stated from which we can infer that the tradition comes from persons who could not be mistaken. In any view of the testimony, we are of the opinion that the complainants have failed to establish their right to be adjudged the legal heirs to the estate of James Osborne herein. The decree of the Circuit Court is therefore affirmed. PERRY v. LONDON ASSUR. CORPORATION. (Circuit Court of Appeals, Ninth Circuit. No. 1,621. February 1, 1909.) INSURANCE (§ 282*)—AVOIDANCE OF POLICY FOR BREACH OF CONDITIONS-MISREPRESENTATION AS TO TITLE AND INCUMBRANCES. Policies of insurance on sawmill property, machinery, etc., contained the usual provision that they should be void if any misrepresentation was made as to the title or ownership of the property, if it should be incumbered by any mortgage, or if there should be any fraud or false swearing either before or after any loss. The insured represented the property to be free of incumbrance, and in proofs made after a loss swore that there had been no change in the title or possession of the property since the issuance of the policies. In fact there had been a decree foreclosing a chattel mortgage on the property, and an order of sale, under which the master had taken possession of the property, and the insured had taken an appeal from such decree, and had given a supersedeas bond, in which he stipulated that the property should be held by him subject to the order of the appellate court, which subsequently affirmed the decree of foreclosure. Held, that the policies were avoided by a breach of their conditions. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 601-635; Dec. Dig. § 282.*] In Error to the Circuit Court of the United States for the Western Division of the Western District of Washington. The pleadings of the parties present the questions to be decided. From those pleadings these, among other, facts appear: The action was upon three certain policies of insurance, all of which were issued in pursuance of an arrangement made between the parties in the month of June, 1904, when the first of the policies was issued. Each of the policies contain, among others, these conditions: "This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes * * * * * thereof, or if the interest of the insured in the property be not truly stated therein, or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. * * This entire policy shall be void if the hazard be increased by any means within the control or knowledge of the insured, * or if the interest of the insured be other than unconditional and sole ownership, or if the insurance be personal property and be or become incumbered by a chattel mortgage, or if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed, or if any change other than by the death of an [the] insured take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured, or otherwise." Each of the policies also contain this clause: "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this corporation shall have power to waive provision of condition of this policy, except such as by terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provision or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached." The plaintiff paid the defendant a premium of $390 on the first policy, and a premium of $150 on each of the other two, all of which were issued upon the representation of the plaintiff that the property covered by them was not mortgaged. The property insured consisted of a certain sawmill, with the appurtenant and incidental buildings, tramways, engines, boilers, and other machinery and fixtures, all of which property was involved in a certain suit brought in the court below in the year 1903. by the Tacoma Mill Company, a corporation, against the plaintiff in the present action, wherein the Tacoma Mill Company sought to foreclose a certain chattel mortgage executed to that company on the 14th day of May, 1900, by one George Lawler, in which foreclosure suit Perry appeared and answered, and set up in defense that the property upon which he subsequently obtained the insurance here in question was not covered by the mortgage executed by Lawler to the Tacoma Mill Company. But the court below, in the foreclosure suit, adjudged that it was, and entered a decree directing the sale of the said property to satisfy the said mortgage, attorney's fees, and costs. and further directed such sale to be made by and under the supervision of its master in chancery, in pursuance of which decree, and of an order of sale issued by virtue of it, on the 3d day of October, 1904, the said master levied upon the property covered by the insurance policies here in question, dispossessed the said A. P. Perry thereof, and as such master took actual and physical possession of the property, and placed it in charge of a custodian by him appointed, and gave due notice that he would, in pursuance of the said decree and order of sale, on the 7th day of November, 1904, at the hour of 11 o'clock a. m., sell the said property at public auction to the highest bidder. Subsequently, to wit, October 7, 1904, Perry took an appeal from the aforesaid decree of foreclosure to this court, filing, among other things, in the court below, a supersedeas bond, wherein he agreed, among other things, as follows: "Now, therefore, if the said A. P. Perry, principal herein, shall well and truly prosecute the said appeal, and shall pay all costs and damages that may be adjudged against him by reason of said appeal, or the dismissal thereof, and if the said A. P. Perry, principal herein, shall hold all of the property levied on and seized by the United States marshal and the master in chancery under and pursuant to said decree subject to the proper order and decree that may be entered finally in said cause by said Circuit Court of Appeals of the United States, and shall not waste or destroy any part thereof, but shall hold the same, as above stated, subject to the order and disposition of this court, or of the said Circuit Court of Appeals, then this obligation shall be null and void, otherwise it shall have full force and effect." While the said appeal was pending, and the said supersedeas bond was in full force and effect, all of the property covered by the policies of insurance was destroyed by fire. In November, 1904, Perry represented to one Thornton, an adjuster of the defendant company, that there was no mortgage or incumbrance upon the insured property at the time of its destruction, and in his proofs of loss, which were delivered to the defendant, and which proofs were duly verified by Perry on November 26, 1904, he stated, among other things, this: "That there had been no changes in the title, use, occupation, location, possession, or exposures of said property since the issuance of said policies, and that no incumbrances existed on any portion of the premises or property at the date of said fire." On or about December 19, 1904, and prior to the commencement of the present action, a writ of garnishment was issued out of the court below in the foreclosure suit of the Tacoma Mill Company against Perry, and served upon the defendant insurance company, which writ recited that the Tacoma Mill Company had recovered a judgment against Perry in the sum of $1,000, besides interest and costs, and which said writ of garnishment required the defendant company to appear in the court below and there answer upon oath what, if anything, it owed Perry when the said writ was served upon it, and what personal property or effects, if any, of the said Perry, it had in its possession or under its control, which garnishment proceedings are still pending, and the judgment upon which they are based is still unpaid. The defendant company, contending that the policies in suit were void from the beginning by reason of the representations made by the insured to it, and by reason of the breach of their conditions, admits and concedes that Perry is entitled to receive back the $520 paid to it as premiums upon the first and third policies issued, and avers that it would have tendered the same to him. and would have brought the said premiums into court, but for the aforesaid garnishment proceedings, and is ready, and willing, and able to pay the same "to the said A. P. Perry, or to the said Tacoma Mill Company under said garnishment for the said A. P. Perry, as the facts, and the law, and the rights of the parties, respectively, may be determined." Vance & Mitchell and J. W. Robinson, for plaintiff in error. Before GILBERT, ROSS, and MORROW, Circuit Judges. ROSS, Circuit Judge (after stating the facts as above). Although the plaintiff in error, in his reply to the defendant's answer filed in the court below, denied that the property insured was covered by the mortgage foreclosed in the suit of the Tacoma Mill Company against Perry, his pleading admitted that the property covered by the policies in suit was taken from him under and by virtue of the process of the court in the foreclosure suit as property embraced by the decree of foreclosure, and that he recovered possession from the court's officer by giving a supersedeas bond in connection with an appeal to this court from the decree, by which bond he obligated himself, among other things, to hold the property "subject to the proper order and decree that many be entered finally in said cause." He so held it at the time of its destruction by fire. It was adjudged by the court below and by this court, in the foreclosure suit, that the bond so given by Perry was a forthcoming bond. 152 Fed. 115, 81 C. C. A. 333. By its execution Perry subjected the insured property to the satisfaction of the mortgage there in suit, in the event it should be finally adjudged |