Commercial Union Assurance Co. v. Scammon

102 Ill. 46, 1882 Ill. LEXIS 5

• Court: Illinois Supreme Court
• Decided: November 10, 1881
• Status: Published

Opinion

Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an action brought by J. Young Scammon, against the Commercial Union Assurance Company, upon a policy of insurance issued January 2, 1874, for the sum of $5000, for one year, on certain premises in Chicago.

The policy contains the following provision: “If the property be sold, or transferred, or any change takes place in the title or possession, whether by legal process or judicial decree, or voluntary transfer, or conveyance, * * * this policy shall be void. ”

In May, 1872, Scammon applied to the United States Mortgage Company, a foreign corporation created by the laws of the State of New York, for a loan of money. On May the 30th, 1872, a bond and mortgage were executed, ready for delivery, and on the 9th day of July the mortgage company paid to Scammon the amount agreed to be loaned, $200,000, received the bond and mortgage, and placed the mortgage upon record. In November, 1873, Scammon made default in the payment of interest, and the mortgage company elected to declare the whole debt due, as provided by the terms of the bond and mortgage, and advertised the property for sale on March 31, 1874. In pursuance of the notice the property was sold, and bid off by James H. Bees, for the sum of $100,000. On the 20th day of April, 1874, Bees conveyed the' property to Samuel D. Babcock. The property was destroyed by fire, July 14, 1874.

On the trial of the cause in the circuit court, the following instruction was asked by the defendant, and refused:

“12. The jury are instructed, as a matter of law, that the mortgage executed by the plaintiff to the United States Mortgage Company, the deed executed by the mortgage company to James H. Bees, and the deed executed by James H. Bees to Samuel D. Babcock, which have been given in evidence, operated as a change of title to the property described in the policy, within the meaning of the provision of the policy upon that subject, and they should find a verdict for the defendant.”

The decision of the court on this instruction is the only question which it will be necessary to consider, as the disposition of that question will settle the whole controversy involved in the case. The circuit court doubtless refused the instruction on the authority of The United States Mortgage Company v. Gross, 93 Ill. 483. This court, in the recent case of Stevens v. Pratt, opinion filed September 30, 1881, (101 Ill. 206,) had occasion to review the decision in the Gross case, and that opinion was overruled, in so far as it held a mortgage void which was executed to a foreign corporation after the adoption of the General Incorporation act of 1872.

The decision in Stevens v. Pratt, supra, is conclusive of the question involved in this case. It will not be necessary to repeat here the reasoning upon which that decision is based, but we content ourselves with a reference to that case for a full expression of the views of the court upon the question. In accordance with the decision in Stevens v. Pratt, the court erred in refusing the instruction.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Walker :

I hold the mortgage company had no power to take, hold or convey the title to this property, and therefore dissent.

Mr. Justice Dickey :

While the mortgage company may have been capable of taking and holding a lien upon real estate in this State, it was prevented by statute from taking title. Having no title, a deed made in its name to another conveyed no title. At law I think there was no change in the legal title, and hence the policy was not thereby avoided.