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Opinion of the Court.

out of its provisions may be sustained. While the validity of such a stipulation cannot be disputed, Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386, 389, we do not doubt that it may be waived by the company. And such waiver need not be in writing. It may arise from such a course of conduct upon its part as will equitably estop it from pleading the prescribed limitation in bar of a suit by the insured. It is to be observed that, by the terms of the policy, the company is not obliged to pay any claim until after the expiration of sixty days from the receipt of the proofs of loss at its office in Chicago, and the ascertainment of the loss in accordance with the terms of the policy. A suit, therefore, within the sixty days after the loss is so ascertained would, upon the theory of the company, be of no avail to compel payment if it chose to plead the above clause in bar of the action. So that, practically, the assured is limited to ten months within which he may sue as of right. And yet the twelve months within which suit must be brought is made to commence at “the date of the fire," not from the date when the loss is payable. There are, it is said, adjudged cases that would authorize such a construction of this policy as would give the insured the whole term of twelve months from the date when he could demand, as of right, that his claim for loss be satisfied. Vette v. Clinton Fire Ins. Co., 30 Fed. Rep. 668; Steen v. Niagara Fire Ins. Co., 89 N. Y. 315, 322; Spare v. Home Mut. Ins. Co., 17 Fed. Rep. 568, 570; Mayor &c. v. Hamilton Fire Ins. Co., 39 N. Y. 45, 48; Hay v. Star Fire Ins. Co., 77 N. Y. 235, 244; Chandler v. St. Paul Fire & Marine Ins. Co., 21 Minnesota, 85; May on Insurance, $ 479, notes 2d ed. We waive, however, any expression of opinion, in the present attitude of the case, as to the view announced in those cases, for its disposition only requires us to hold, as we do, that the allegations of the amended bill, bearing upon this point, sustain the right of the plaintiff to bring this action, although it was not commenced until after the expiration of twelve months from the date of the fire. Those allegations are to the effect that the company, by its duly authorized agents, assured the plaintiff about thirty days after the fire

Opinion of the Court.

and after the acceptance of the proofs of loss, that no question was made as to the loss or its payment, except that the company was considering the fact of the change in the receivership, and that it would undoubtedly pay the loss claimed; that as late as June 27, 1884, the premium of three hundred dollars was paid to the company, which, by its agents, again assured the plaintiff that the loss would be paid as soon as action could be taken; that after sixty days had elapsed from the delivery of the proofs of loss, the company, by its agents, repeatedly gave the same assurances ; and that, by reason of such promises and assurances, he neglected, for some time after sixty days from the delivery of proofs of loss to bring suit for the recovery of the loss sustained. We need not stop to consider the suggestion that the agents referred to had no authority to give those assurances or to make those promises. No such question can arise upon the amended bill, for it alleges that the company, by its duly authorized agents, made the promises and gave the assurances. What the fact may be, in respect to the authority of the agents, or whether the plaintiff had the right to rely upon those assurances and promises, and, if he did, whether the company's rights were thereby affected, are questions not now to be decided. Their determination will depend upon the answer and the evidence at the trial. If, as the allegations of the amended bill imply, the failure of the plaintiff to sue within the time prescribed by the policy, computing the time from the date of the fire, was due to the conduct of the company, it cannot avail itself of the limitation of twelve months. Curtis v. Home Ins. Co., 1 Bissell, 484, 487; Ide v. Phænix Ins. Co., 2 Bissell, 333; Grant v. Lexington Ins. Co., 5 Indiana, 23, 25; Mickey v. Burlington Ins. Co., 35 Iowa, 174, 180. In the case last cited it was properly said that it would be contrary to justice for the insurance company to hold out the hope of an amicable adjustment of the loss, and thus delay the action of the insured, and then be permitted to plead this very delay, caused by its course of conduct, as a defence to the action when brought.


We are of opinion that the court erred in sustaining the demurrer to the amended bill. The decree is reversed with directions for such further pro

ceedings as may be consistent with this opinion.

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A and B intermarried in Arkansas in 1859, during which year a child was

born to them alive, capable of inheriting, and died in 1862. In 1864, C died, the owner of estate, real and personal in Arkansas, leaving as sole heirs at law, his father, D, his brother, A, and a sister, E. The two latter became the owners in common of decedent's realty, subject to a life estate in D, their father. In 1870, D died, after which in 1871, A and E agreed upon a partition. A desiring to vest the title to his share in his wife – he being then solvent — conveyed (his wife uniting with him to relinquish dower) to his sister, E, all his interest in the lands inherited from his brother. By deed of date January 2, 1871, E (her husband joining her) conveyed to A's wife what was regarded as one-half in value of the lands formerly owned by C, including those in dispute in this suit. This deed was recorded May 24, 1875, in the county where A's wife then and ever since resided. No other schedule of it, nor other record nor intention to claim the lands in dispute as her separate property was ever filed by her. After the date of the deed to A's wife, the lands in dispute were cultivated by him as agent of his wife, and in her name, for her and not in his own right. In 1884, his creditors obtained a judgment against him, and another on a debt contracted in 1881, sued out execution, and caused it to be levied upon the lands in dispute, and advertised them to be sold. A's wife brought a suit in equity to enjoin the sale upon the ground that the lands were not subject to her husband's debts, and that a sale would create a cloud upon her title; Ileld, (1) The constitution of Arkansas of 1868 placed property thereafter

acquired by a married woman, whether by gift, grant, inheritance or otherwise, as between herself and her husband, under her exclusive control, with power to dispose of it or its proceeds, as she

pleased; (2) The deed by E and her husband to A's wife was subject to the con

stitution of 1868, which made any property acquired by the wife, Opinion of the Court.

after it went into operation, her separate estate, free from his

control; (3) When the deed of 1871 was recorded in 1875, if not before, the

lands in dispute became free from the debts of A, and therefore

were not liable for the debt contracted in 1881; (4) Neither the constitution of 1868 nor that of 1874 could take from

the husband any rights vested in him prior to the adoption of either instrument. But when the constitution of 1868 was adopted A had no estate by the curtesy in these lands in virtue of his marriage; for his wife had then no interest in them. In Arkansas, as at common law, except when from the nature and circumstances of the real property of the wife she may be regarded as constructively in possession, marriage, actual scisin, issue and

death of the wife are all requisite to create an estate by the curtesy ; (5) It is competent for a State, in its fundamental law or by statute, to

provide that all property thereafter acquired by or coming to a married woman, shall constitute her separate estate, not subject

to the control, nor liable for the debts, of the husband; (6) It is the right of those who have a clear, legal and equitable title

to land, connected with possession, to claim the interference of a court of equity to give them peace or dissipate a cloud on the title.

IN EQUITY. The case is stated in the opinion.

Mr. Jacob Trieber for appellants.

Mr. James C. Tappan and Mr. John J. Hornor for appellee.

MR. JUSTICE HARLAN delivered the opinion of the court.

This suit involves the title to certain lands in Arkansas, which the appellee, a married woman, claims to constitute her separate estate, and, as such, not liable for the debts of her husband, James M. Hanks.

By the laws of Arkansas in force when the appellee and her husband were married, (Rev. Stat. Ark. 1858; Gould's Dig. 765, c. 111,) it was provided that ($ 1) “any married woman may become seized and possessed of any property, real and personal, by direct bequest, devise, gift or distribution in her own right and name and as of her own property: Provided, The same does not come from the husband after coverture;" that (8 7) “ before any married woman shall be entitled to the

Opinion of the Court.

privileges and benefits of the provisions of this chapter, she shall cause to be filed in the recorder's office, in the county where she lives, a schedule of the property derived through her, and no property belonging to any married woman shall be exempt from the payment of any debts contracted by her husband previous to the filing of the schedule aforesaid," and that ($ 8) “ whenever the deed, bequest, grant, decree or other transfer of property of any kind to any married woman shall expressly set forth that the same is designed to be held exempt from the liabilities of her husband, such property with the natural increase thereof shall be deemed and considered as belonging exclusively to such married woman, under the provisions of this chapter, and shall not be liable to execution or sale for the payment of debts of her husband, whether contracted before or after the accruing of the title of the wife: Provided, That no conveyance from any married man to his wife, either directly or indirectly, shall entitle her to any benefits or privileges of this act.”

In 1868 a new constitution was adopted, and among its provisions was one declaring: “The real and personal property of any female in this State, acquired either before or after marriage, whether by gift, grant, inheritance, devise or otherwise, shall, so long as she may choose, be and remain the separate estate and property of such female, and may be devised or bequeathed by her, the same as if she were a feme sole. Laws shall be passed providing for the registration of the wife's separate property, and when so registered, and so long as it is not entrusted to the management or control of the husband otherwise than as an agent, it shall not be liable for any of his debts, engagements or obligations.” Art. XII, $ 6.

This was followed in 1873 by an act providing that (Gantt's Dig. Stat. Ark. 1874, $ 4193, p. 756)“ the property, both real and personal, which any married woman now owns or has had conveyed to her by any person in good faith and without prejudice to existing creditors, or which she may have acquired as her sole and separate property; that which comes to her by gift, bequest, descent, grant or conveyance from any person ;

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