*329The opinion of the court was delivered by
Thompson, J.All theassignments of error present, substantially, but two questions. First, to the admission of, and rulings of the court upon, the record from the Circuit Court of Illinois; and secondly, their instructions relative to the condition in the policy limiting the time within which an action may be brought for a loss, including their views in regard to the alleged waiver by the agent of the company.
The record of the proceedings in equity in the Circuit Court of Illinois, was received, not on the footing of a decree, or judgment between the parties, but as the proceedings in a mode of assurance well known in chancery. They all converged to a point with a view to, and resulting in, a conveyance by order of the chancellor, of the legal title of the plaintiff, he having shown that he was the owner of the equitable title, for a long period of time anterior to instituting the proceedings. The whole was but the formula in such an assurance, and it was all evidence, if any part was.
The decree for a deed, a step in the process, was, as must always be the case, founded on facts proved or admitted, deemed sufficient to establish the right of the plaintiff to the interposition of the court. Amongst them were the facts, that the plaintiff in the case had advanced to Coursin & Wilson, the equitable owners, all the money to build the property, and taken their notes, secured by a trust-deed, for their payment; that, being wholly unable to pay, they sold the property to the plaintiff, delivering to him full possession, which he held thereafter, together with their muniments of title, in consideration of a surrender to them of the evidences of their indebtedness. That this was done with the consent of the trustee, of course rendered unnecessary a sale by him. This arrangement was some two years before the insurance. It appearing thus, that the plaintiff was the rightful owner of the equitable estate in the premises, the court decreed that a deed should be made to him of the legal title, and accordingly decreed it to be done.
The objection to this record is, that it is res inter alios acta. But it was no more obnoxious to such an objection than would be a sheriff’s deed, where the judgment, fi. fa., inquisition, venditioni and return are evidence to support it. Many of these steps may be, and often are, by arrangement between the parties, such as confession of judgment, waiver of inquisition, and sometimes of both inquisition and venditioni, assenting to a sale on the fi. fa. Yet all these things are evidence. 'The same objection might be made to articles of agreement, ordinary deeds, Orphans’ Court sales, treasurers’ sales, and the like, but we know that such objections are never made when they are offered to prove title. A party may often go behind his deed, to his article of *330agreement, to fix the commencement of his title. Here the commencement of the plaintiff’s title was an element in the proceedings, and they show it, and it is primá facie established by the decree. The defendants were not precluded from showing the contrary, notwithstanding the decree. If the plaintiff had held a written transfer of the equitable interest of Coursin & Wilson, of the date of the actual transfer of possession, I presume no one would have thought of objecting to it as incompetent evidence. It would, however, have been but another mode of showing that the equitable owners had transferred the property to him, but not the only one. The whole proceedings were evidence of title, and given in evidence as title, with no more effect than title derived in any other way, .and they show, and were evidence for that purpose, the whole title, when it began and when consummated. The other side might have controverted any step in it if they could. It clearly established the plaintiff’s equitable ownership of the property at and before the insurance was effected. The case of Lentz v. Wallace, 5 Harris 412, cited by the plaintiffs in error, is not in point. In that case the record of a former judgment between the same parties (but for a different cause of action) was offered to establish the fact that in a former suit the plaintiff had recovered against him on a claim for necessaries furnished his wife, the same plaintiff having sued again for a similar claim. It becoming necessary to establish that the defendant had turned his wife out of doors, the former judgment in a suit for necessaries was offered to establish it. It was rejected, because it did not necessarily tend to prove the allegationLewis, O. J., saying, “ The husband is liable for necessaries furnished his wife, whether he cohabits with her, or turns her out of doors without cause, and the record of the former judgment does not show upon what ground the recovery was obtained.” This case, therefore, bears no resemblance to the case in hand. We think there ivas no error in admitting this record in evidence,- nor in the effect allowed to it by the learned judge in his charge.
As to the second question involved, we need say but little. The limitation contained in the 16th Article of the Conditions of Insurance, as was remarked by the learned judge below, was inserted by and for the benefit of the company, and could be waived by it. This is undoubtedly true, and for it no citation of law is needed. The only question, then, on this branch of the case, was a question of fact, to wit, was the condition waived, and waived by competent authority ? The testimony touching this point of inquiry was fairly submitted to the jury, accompanied by pertinent and appropriate remarks* by the judge. This was all that could properly be done by him. Indeed, I presume there was but little doubt about the existence of the agency, the *331acts and declarations of which were given in evidence, or the extent of its powers, for I noticed that the agent was examined as a witness, and did not controvert either, but only the acts and declarations attributed to him. The jury found with the plaintiff on the facts, and whether rightly, or not is not our province to judge. As to the law of the case, we think it was rightly administered.
If the company did not intend to rely on the condition, why did it not say so, and relieve the party from further anxiety and trouble about it ? If it acted and promised, after the action was legally barred, as if it did not intend to insist on the limitation, and put the party to trouble, expense, and anxiety, in regard to his claim, they need not complain of a jury finding that they did waive it. Under such circumstances, juries will be very likely to do so,-and sometimes probably on pretty slight evidence. As we see nothing wrong in this record,
The judgment is affirmed.