Hammel v. Queen Insurance Co. of London & Liverpool

6 N.W. 805, 50 Wis. 240, 1880 Wisc. LEXIS 215

• Court: Wisconsin Supreme Court
• Decided: October 12, 1880
• Status: Published

Opinions

Byab, O. J.

1. The jurisdiction of equity to reform a'' written instrument, on the ground of mistake, is exclusive. Story’s Eq., §§ 154-157; Follett v. Heath, 15 Wis., 601; Harrison v. Bank, 17 Wis., 340. The counsel for the appellant-referred to two cases in this court—Parker v. Ins. Co., 34 Wis., 363, and Roberts v. Ins. Co., 41 Wis., 327—in support' of the position that courts of law now possess concurrent jurisdiction. But neither of these cases, nor, so far as is known, any others, support him. And it is hardly necessary to remark that such a rule would open the door wide for parol evidence to modify written contracts, of which' courts of law have such an abhorrence. The rule is familiar that a'court of equity, having taken jurisdiction of the subject matter of- liti--gation for one purpose, will, retain it for all purposes between’ the parties. Prescott v. Evarts, 4 Wis., 314; Akerly v. Vilas, 15 Wis., 401; Hamilton v. Fond du Lac, 25 Wis., 490.

The averment in the complaint of a mistake in the policy of’ insurance, and'the prayer for its reformation, give jurisdiction in equity. If the policy should be reformed, the court will retain jurisdiction for the determination of all issues which may be made upon it; and all issues of fact will, if required; be tried by a jury. Harrison v. Bank, supra.

2. The legal title to the policy of insurance was as effectually in the plaintiff as if it had been assigned to him. Appleton Iron Co. v. Ins. Co., 46 Wis., 23. He was’ mortgagee of the premises insured, and the loss, if any, was made payable to him as his interest might appear. His mortgage debt is averred to be greater than the sum insured. Thus his interest appears to be the whole interest in the policy. In these circumstances it is difficult to pereeive why the mortgagor is a necessary party. It has been held in this court that where the legal.title of the policy is in the creditor, he may maintain an’ action oil tlie' policy in his own name. Northwestern M. L. Ins. Co. v. Germania F. Ins. Co., 40 Wis., 446. Elsewhere, the great current of authority is to the same effect. Grosvenor v. Ins. Co., 17 N. Y., 391; Cone v. Ins. Co., 60 N. Y., 619; Ennis v. Ins. Co., 3 Bosworth, 516; Chamberlain v. Ins. Co., 55 N. H., 249. Both may undoubtedly join as plaintiffs, as has been often held in this court. Appleton Iron Co. v. Ins. Co., supra. If the mortgagee alone sue, and recover more than his debt, he will hold the surplus as trustee for his debtor. May on Insurance, § 449; Cone v. Ins. Co., supra.

It was contended that this rule affords no adequate protection to the mortgagor. The answer to this position is, that the demurrer admits that the mortgagor has no interest. It is competent for the defendant to suggest, by affidavit or answer, that the mortgagor is a necessary plaintiff. R. S., secs. 2610-2611. But he can raise the question by demurrer only when the interest in the mortgagor is patent in the complaint. Where the mortgagor is not made a party, there is, perhaps, a risk that his interest may not be properly protected. But this may happen to assignors in all actions by assignees. Indeed, it may happen in any litigation where there is an outstanding, unapparent interest in one not a party. This is an infirmity of human-justice. All that courts can do is to require those to be made parties whose interest is apparent; and sometimes, when this cannot be done, to do justice to the parties before them as far as they may be able. Du Pont v. Davis, 35 Wis., 631.

The order overruling the demurrer must be affirmed.