(after stating the facts.)
The Circuit Judge erred in sustaining the defendant’s demuiTer' and in dismissing the bill. The allegations of the bill, if sustained by proof, make a case entitling the complainants to a recovery as prayed. That there could not properly be a recovery at law upon the contract of insurance in its present foam as made to Eudora O. Taylor, deceased, she being dead at the time of its execution, without a reformation ¡(hereof in equity, is ¡sustained by the authorities. Sun Insurance Company v. Greenville Building and Loan Association, 58 N. J. L. 367, 33 Atl. Rep. 962; Oliver v. Mutual Commercial Marine Ins. Co., 2 Curtis, 277; Phœnix Fire Ins. Co. v. Hoffheimer Bros. & Co., 46 Miss. 645; Hartford Ins. Co. v Haas, 87 Ky. 531, 9 S. W. Rep. 720; Balen v. Hanover Fire Ins. Co., 67 Mich. 179, 34 N. W. Rep. 654; Globe Ins. Co. v. Boyle, 21 Ohio St. 119. The case as made by the bill entitles the com*285plainants to a reformation of the policy. No specific instructions were given by J. D. Taylor, acting as the agent of the owners in procuring the insurance, as to whom] the policy should be made; his sole instruction on that subject being that he desired the insurance renewed, and he relied upon the agent of the defendant company, who had been for years insuring the property, to prepare and execute a valid policy that would effectually bind the ■company and insure the property. The agent had knowledge of the fact that Eudora O. Taylor, the former owner of the property, was dead at the time of the issuance of the policy, yet, from momentary forgetfulness of the fact at the time, inadvertently miadle it out directly in her name, as previous policies on the isame property issued by him had been iso made. Indeed the next preceding policy on the property issued by the same defendant company through the: same agent, that ran its full time and had expired, and for which the defendant received and retained full premium, was likewise through inadvertence made directly to the said Eudora O.. Taylor, she being dead ait the time of its issuance. J. D. Taylor, the buband, acted all along as the agent for his wife Eudora during her life in procuring the: insurance of the property he lived upon it with her and their children up to the time of her death, and afterwards continued to reside there with his children from the time of her death until its destruction by fire, there being no change in the occupancy, control and possession thereof. The same agent of the same defendant had always prior to Eudora’s death diealt personally with him1 in effecting insurance upon the property, so that there can be no just claim of objection on the part of the defendant company in making the contract of insurance as to the personnel of the owner or own*286ers of the property. At the time of the issuance of the policy in question and of previous policies thereon tin., property was in the possession, 'Control and occupancy of the husband and father, J. D. Taylor, and of his children, and continued to remain soi until its destruction by fire. The defendant’s agent, with knowledge of these facts and. of the death of Eudora, its former owner, and of the descent by law of the title and ownership of the property to her husband and children on her death, consented to renew the insurance thereof, and retained the money consideration foil’ such insurance. Under these circumstances no other just of equitable construction can be placed upon the mtention of the defendant company in making this contract of insurance than that its intention was to eff'ectually and legally bind and obligate itself to pay to tbei legal owners of the property, whosoever they might be, the sum of money contracted for in case of destruction by fire of the specified property. This intention it could not legally or effectually carry out by making a void contract with a party deceased at the time of its execution, and it does not justly or equitably lie in its mouth, after the destruction of the property insured, and after its- ..eceipt and retention of the consideration paid to it for a valid and binding contract of insurance, to say that it is true I got your money, but I issued to you a void contract for it by which I am not bound or obligated in any way. Oliver v. Mutual Commercial Ins. Co., 2 Curtis, 277; Cook v. Westchester Fire Ins. Co., 60 Neb. 127, 82 N. W. Rep. 315; German Fire Ins. Co. v. Gueck, 130 Ill. 345, 23 N. E. Rep. 112; Fitchner v. Fidelity Mut. Fire Asso., 103 Iowa, 276, 72 N. W. Rep. 530. And failure of the insured t.o read a policy, even where he had opportunity for so doing, does not amount to such laches on his *287part as will debar birui from.1 having such policy reformed for mistake therein. See last authority supra. The policy piwiüjtiá' that no recovery should be had thereon unless suit thereon, wais brought within a year from the destruottion of the property and the bill was filed subsequently to the expiration of this year, buit the bill effectually avoids this bar by snowing; that the complainants in ignorance of the mistake in the name of the insured in the policy brought their suit at law within the year upon the policy, and at (he trial of that suit for the first time discovered such mistake through the pleadings therein of the1 defendant company, by which they were forced to take a non suit in such action at law, and that they at once, upon such discovery, filed their bill for the double purpose of reformation of the policy and recovery thereon- as reformed ; that the defendant’s agent, without their knowledge or consen (. a few days- before the destruction of the property by file, obi a !nt*d’possession of the policy from a mortgas. e or iht- property in whose possession, it was, and unauthorizedly canceled it without -the knowledge or consent of the true beneficiaries of such policy, returning the then unearned pro rata part of the premium to such mortgagee, who had no authority to receive it, and without giving the five days notice of the intended cancellation of such policy as stipulated for .in such policy, and that the defendant company withheld the possession of such policy thus obtained and refused to deliver it or a copy thereof to complainants until after the. suit at law thereon was begun, and withheld from complainants all information relative to the terms and conditions of such policy. Under these circumstances if true, there was no bar by the limitation expressed in the policy. Union Cent. Life Ins. Co. v. Phillips, 41 C. C. A. *288263, 102 Fed. Rep. 19; Doughtery v. Metropolitan Life Ins. Co., 3 Hun. App. Div. 313. The defendant company by unconditionally denying .any liability upon the policy waived the proofs of loss proyided for in the policy. German Fire Ins. Co, v. Gueck, 130 Ill. 345. 23 N. E. Rep. 112.
The attempted! cancellation of the policy under the circumstances charged i.n the bill, if true, was a nullity and did not release the defendant company from obligation to pay the subsequent loss
There is nd merit in the ground of the demurrer asserting a misjoinder of parties complainant. The bill shows that the policy of insured in question was made payable to Eudora 0. Taylor, loss if any, conditionally payable to Eliza Kimibrough, a mortgagee. The bill shews also that the policy was for $1,250, and the mortgage for only $400. Undc-r these circumstances the personal representative of the mortgagee, ishé being dead, was not only a proper, but a necessary, party complainant conjointly with the heirs at law of Eudora O. Taylor, deceased, and the decree in the case may adjust, and provide for their respective interests in the recovery on- the policy. Williamson v. Michigan Fire and Marine Ins. Co., 86 Wis. 393; Home Ins. Co. v. Gilman, 112 Ind. 7, 13 N. E. Rep. 118; Proctor v. Georgia Home Ins. Co., 124 N. C. 265, 32 S. E. Rep. 716; Franklin Ins. Co. v. Wolff, 23 Ind. App. 549, 54 N. E. Rep. 772; Ennis v. Harmony Fire Ins. Co., 3 Bosw. (N. Y.) 516; Lasher v. North Western Nat Ins. Co., 18 Hun, 98; Sun Mutual Ins. Co. v. Tufts, 20 Tex. Civ. App. 147, 50 S. W. Rep. 180.
The decree of the court below is reversed with directions to overrule the defendant’s demurrer to the bill, a.nd for such further proceedings in the cause as may be conformable to equity practice.