Pinkham v. Morang, & Monmouth Mutual Fire Insurance

40 Me. 587

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1885
• Status: Published

Opinion

Appleton, J.

By the charter of the Monmouth Mutual Eire Insurance Co., it is provided, that “ the company shall have a lien against the assured on all buildings insured by them” to the amount of his or her deposit note. It is material, therefore, that the party should truly represent his title to the premises insured. It has been held, that when a mutual company is entitled to a lien on all property insured by them, and when one of the conditions is, that if the representation made by the applicant is materially false, the policy should not cover the loss; it will operate as a fraud upon the members of the company, if the applicant calls the property proposed to be insured his own, when it is not or when his title is defective, and, thereupon, obtains an insurance upon it. Angell on Fire and Life Insurance, § 188; Brown v. Williams, 28 Maine, 252; Smith v. Bowditch Mutual Fire Ins. Co., 6 Cush. 448.

The applicant for insurance, in the present case, called the property his own, in his application, and upon the faith of this, his policy was issued.

An attempt is made to show title to have been in the assured, at the date of the policy, in two ways. —

Eirst, by a tax title. The Act of March 6, 1826, c. 337, § 8, requires the collector to make a “return of his particular doings in the sale, within thirty days after it was made.” His return is not before us. His testimony does not show when it was made. It is not shown to have been done within the time prescribed by the statute. The tax title must be regarded as fatally defective. Shimmin v. Inman, 26 Maine, 228 ; Andrews v. Senter, 32 Maine, 394.

Second, by the foreclosure of a mortgage. It would seem that Goodale & Nason, at one time, had a mortgage upon the premisos; that Nason assigned his interest therein to one Emerson, who entered and claimed to have foreclosed the mortgage. The assured dervies his title from Emerson after his foreclosure. But there is no evidence that Goodale has ever parted with his interest in the mortgage. The title, therefore, of the assured, fails as to one-half of the premises, and, in accordance with the authorities already cited, we must regard the insurance as void.

Trustees discharged.