Rice v. Tower

67 Mass. 426

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1854
• Status: Published

Opinion

Metcalf, J.

1. The mortgage of the insured goods to Peter G. Tower, who did not take possession of them, was not such an alienation as vacated the policy. So the law has been held in regard to real estate that is mortgaged after it is insured. Jackson v. Massachusetts Mutual Fire Ins. Co. 23 Pick. 418. And we see no reason for a distinction, on this point, between real and personal property.

2. Nor was the seizure of the insured goods on execution without removing them, an alienation that avoided the policy. There are obiter dicta in the books, that by seizure on afi.fa. the debtor’s property in the goods is lost; that the sheriff acquires a special property, but that the general property of the debtor is devested and is in abeyance. See 1 Lev. 282; 1 Vent. 53; 6 Mod. 293; Holt, 647; 4 Mass. 403; 2 Mass. 517. But the law never was so. The general property in goods seized on execution remains in the debtor until they are sold. Shelton’s case, Dyer, 67 b, note. Dunnal v. Giles, 1 Brownl. 41. Lowthal v. Tonkins, 2 Eq. Cas. Ab. 381. Blake v. Shaw, 7 Mass. 506 Ludden v. Leavitt, 9 Mass. 105. Churchill v. Warren, 2 N. H. 298. Folsom v. Chesley, 2 N. H. 432. The King v. Wells, 16 East, 278, 282. Payne v. Drewe, 4 East, 523.

3. Nor can the court decide, upon the answer of the underwriters, that the use of the building, for the auction sale on execution, enhanced the risk of fire, so as to avoid the policy. Boardman v. Merrimack Mutual Fire Ins. Co. 8 Cush. 583. Franklin Fire Ins. Co. v. Findlay, 6 Whart. 483. In a suit against them, on the policy, this question of enhanced risk would properly be left to the decision of the jury. But we cannot, in this trustee process, look beyond the facts stated in the answer.

The plaintiffs suggested, in argument, that if the risk was enhanced by the auction, yet that it was enhanced “ by means not within the control of the insured; ” and therefore that under the 17th article of the company’s by-laws the policy was not thereby avoided. We cannot yield to this suggestion. For we know of no law which authorizes an officer to keep attached goods, or to sell goods seized on execution, in the debtor’s building, without his consent.. And for aught that appears in the case, the execution debtor might have prevented the use of the building for the sheriff’s auction.

The company must be charged on their answers. To what extent, beyond the value of the goods that had not been sold by the sheriff before the fire, if at all beyond that value, we do not now decide; not having before us sufficient facts as to the sale., to enable us to determine the legal effect thereof on the company’s liability. If the parties do not adjust the matter, out of court, the question, as to the amount for which the company are chargeable, must be settled on a scire facias against them.

Trustees chcvrged.