Luther v. Kinion. ' his mortgagor in a suit to try title to the mortgaged property which suit was instituted subsequent to the giving of the mortgage, the mortgagee not being made a party thereto. The facts are that in 1912 Mrs. Bartholemew, wife of J. A. Bartholemew, living on a farm in Howell county on which was certain live stock, executed a note to the plaintiff, Luther, on account of an indebtedness she owed him. On the back of the note there was written a pledge, pleading the live stock for the payment of the note. The matter stood in this way until sometime in 1914 when J. A. Bartholemew brought a suit for divorce against Mrs. Bartholemew in which the title to the farm of real estate and the title to the personal property covered in the pledge was tried, and a judgment was rendered in favor of Bartholemew and against his wife. The pledge (or, as it is termed in the record before us, the chattel mortgage) was never recorded, but before there was a levy made under the Bartholemew judgment the plaintiff took possession of the live stock and it was taken out of his hands under the execution, he thereupon instituting this suit in replevin. There is evidence tending to show that Bartholemew knew of the existence of the pledge or chattel mortgage before he instituted his suit to determine the title in the divorce proceeding, and, as stated, he did not make the pledgee or mortgagee (plaintiff herein) a party. In the trial of the replevin suit the plaintiff was not permitted to make any showing that the property belonged to Mrs. Bartholemew at the time she gave the chattel mortgage or pledge, and the trial court decided the case on the theory that the plaintiff herein was bound by the former judgment in the divorce proceeding between Bartholemew and his wife and was estopped to deny Bartholemew's title. The court over the objection of the plaintiff permitted to be introduced in evidence the petition, answer and judgment rendered in the Bartholemew trial, and at the close of the evidence directed a verdict for the defendant Kinion. It should be stated that Kinion, the Luther v. Kinion. defendant in this suit, is the purchaser of the property under the Bartholemew judgment. A declaration of law approved in the case of Wommack v. St. Joseph, 201 Mo. 1. c. 477, 478, 100 S. W. 443, is that "In the law of estoppel one person becomes privy of another, first, by succeeding to the position of that other as regards the subject of the estoppel, and, second, by holding in subordination to that other" and that "To make a man a privy to an action he must have acquired an interest in the subject-matter of the action either by inheritance, succession, or purchase from a party subsequent to the action, or he must hold property subordinately." 23 Cyc. 1260 lays down the rule that a mortgagee is not bound by any proceedings against his mortgagor which were not begun until after the execution of the mortgage, unless he was made a party thereto, and that the assignee is not bound by a judgment against his assignor where his rights vested prior to the commencement of the action against his assignor. [See, Bigelow on Estoppel (6 Ed.), pp. 158, 159.] The Supreme Court of the United States in the case of The Keokuk and Western R. Co. v. State of Missouri, 152 U. S. 301, 38 L. Ed. 450, holds that a mortgagee is not bound by judgments or decrees against the mortgagor in suits begun subsequent to the execution of the mortgage unless he be made a party or some one representing him be made a party. In the case of Vincent v. Hansen (Mich.), N. W. 488, it is held that where a vendor of chattels replevins the same for fraud of the vendee and recovers a judgment, such judgment is not res judicata as to a mortgagee of the goods where the mortgage was given before the claim of fraud was made. [See also: Tyres v. Kennedy (Ind.), 26 N. E. 394; Yorks v. Steele, 50 Barb. (N. Y.) 397; Campbell v. Hall, 16 N. Y. 575; Old Colony Trust Co. v. City of Omaha, 230 U. S. 100, 57 L. Ed. 1410; 15 R. C. L. secs. 502, 503; Nashua Trust Co. v. Edwards Mfg. Co., 99 Ia. 109, 61 Am. St. Rep. 226; Illinois Trust & Saving Bank v. City of Des 200 M. A.-11 71 Harnden v. Southern Surety Co. Moines, 224 Fed. 620.] From the principle announced in the foregoing authorities the ruling of the trial court to the effect that the plaintiff in this case was bound by the judgment in the Bartholemew case was erroneous. All that is before us in this case is the abstract prepared by the appellant and the appellant's brief; nothing was filed on behalf of the respondent to aid the court in determining the matter presented. Appellate courts are kept busy in deciding cases which are briefed on both sides and should not be required to take the time necessary to look up the respondent's side of the case unaided. The judgment is reversed and the cause remanded. Sturgis, P. J., and Bradley, J., concur. SAM HARNDEN, et al., Respondents, v. SOUTHERN SURETY COMPANY, Appellant. Springfield Court of Appeals, April 20, 1918. 1. CONTRACTS: Public Policy: Validity. A contract by a mining company lessee, to indemnify lessor of machinery for damages by reason of injuries to employees, although caused by the negligence of the lessor, is valid. 2. INSURANCE: Indemnity Insurance: Liability on Policy. Where a mining company carrying liability insurance had contracted to hold the lessor of machinery free from loss from injuries to em. ployees, and the attorney for the insurance company and the lessor settled actions against the mining company and the lessor, each paying half, the insurer was liable to the mining company for money which it was compelled to pay to the lessor under its contract. 3. : : Test of Liability. An indemnity insurance company, whose policy provides that it shall have the right to defend against all claims for damages and be liable only in case of judg ment in a court of last resort, actually paid by the insured, cannot be held liable for any settlement of a claim or judgment not yet final unless it was accorded the right to contest such claim or judgment to such a final judgment. 4. Harnden v. Southern Surety Co. : Settlement of Claim: Waiver. Evidence held to sustain a finding that insurer against employer's liability for injuries to employees consented to a settlement, and waived its right to continue the defense to a judgment in the court of last resort. Appeal from Jasper Circuit Court.-Hon. 1. D. Perkins, Judge. AFFIRMED. R. M. Sheppard for appellant.. George Farris and A. G. Young for respondents. STURGIS, P. J.-The plaintiffs as beneficiaries in an Employers Liability Insurance Policy issued by defendant recovered judgment in the trial court on account of an alleged loss suffered by them and covered by such policy. The plaintiffs were engaged in mining, having a large number of employees engaged in that work, and by the policy in question defendant agreed to indemnify the plaintiff against all law costs, loss and damages by reason of the legal liability of the assured (plaintiffs) for and on account of bodily injuries or death suffered through an accident by any employee of the assured while working for plaintiffs in their mine. It is conceded that an accident happened during the life of the policy by which two employees of plaintiffs lost their lives. The mine and machinery being used and operated by plaintiffs were owned by the American Lead and Zinc Company (called herein the American company) under a contract or lease from that company. The wives of the two deceased employees brought separate suits for damages for the loss of their respective husbands against the plaintiffs and the American company jointly, alleging joint negligence and joint liability. The plaintiff, as required by the indemnity policy in question, notified the defendant company and, as was its duty, the defendant undertook the defense of the two damage suits on behalf of Harnden v. Southern Surety Co. the plaintiffs. The American company participated in the defense but there is no complaint that defendant was not given a free hand in conducting the defense unless it be in the matter of a final settlement to be noticed later. One of the damage suits, called the Koonts case from the name of the plaintiff therein, went to trial in the circuit court resulting in a judgment against these plaintiffs and the American company in the sum of $5250. All the steps necessary for an appeal of this case were then taken. The amount sued for in each of the damage suits was $10,000. The limit of defendant's liability was $5000 in each case other than the costs. At this stage of the damage suits, negotiations were had resulting in a settlement of both cases for $3000, one-half or $1500 being paid to each widow. The present controversy grows out of such settlement. As the settlement of the damage suits was actually made the defendant company paid one-half thereof, or $750 in each case, and took a full release from each widow (plaintiffs in the damage cases) on behalf of these plaintiffs. The American company ostensibly paid the other half. The gist of the present case arises from the fact that under the contract by which the plaintiffs were operating the mine and machinery of the American company, they had agreed to assume all the liability for accidents to workmen and agreed to indemnify and hold harmless the American company in case of injury or death of all employees. By virtue of this contract the American company compelled the plaintiffs to reimburse and pay to it the amount $1500 so paid by it in the settlement of the two damage cases. In the present suit the plaintiffs seek to recover from defendant the loss so sustained by them. It is settled we think in the case of Kansas City, etc., Railroad v. Southern News Co., 151 Mo. 373, 52 S. W. 205, that the contract is a valid one by which these plaintiffs agreed to indemnify and save harmless the American Company from any loss which it might |