Walsh v. Fire Ass'n of Philadelphia

127 Mass. 383, 1879 Mass. LEXIS 99

Opinion

Colt, J.

The plaintiff had an insurable interest in the building at the time the policy was issued, which continued until the property was destroyed by fire. Williams v. Roger Williams Ins. Co. 107 Mass. 377. He remained the equitable owner of the whole estate after the conveyances to Campbell and to Dev creux, and retained the evidence of such ownership in the written instruments of defeasance, which were delivered to him as part of each transaction. The title of both Campbell and Devereux in equity was that of mortgagees, under mortgages conditioned to secure them from liability as sureties in a criminal recognizance.

The rights of the parties under this contract of insurance are to be settled according to the relations which were in fact created between the parties to these conveyances, although the defeasances were never recorded. It is not a question between the plaintiff and attaching creditors and purchasers without notice.

In the absence of any specific inquiry by the insurers, or any special stipulation in the policy, the interest of the plaintiff as equitable owner, upon whom the whole loss by fire must fall, was sufficiently described in the policy by the words “ his dwelling-house.” Strong v. Manufacturers’ Ins. Co. 10 Pick. 40. Fowle v. Springfield Ins. Co. 122 Mass. 191. Little v. Phœnix Ins. Co. 123 Mass. 380.

The policy in this case contained no provision requiring the interest of the assured, if other than entire, unconditional, sole ownership, to be so expressed; no provision forbidding a mortgage of the property; and no requirement that the interest of the assured should be particularly described in the proofs of loss. The question is not like that presented in Foote v. Hartford Ins. Co. 119 Mass. 259. There the policy contained a provision by which it was to become void if any change should take place in the title or possession of the property, “ whether by sale, transfer or conveyance, legal process or judicial decree.” After the policy was issued, the plaintiff conveyed his equity of redemption to the mortgagee,.., and took back a bond for a reconveyance of the same to him, on payment of a sum named, which was the amount due on the mortgage. The bond was not recorded, and the question was as to the effect of the transaction upon the plaintiff’s rights under a policy containing such a clause. It was decided that the deed effected a change of title and possession within the meaning of the clause; not that the plaintiff might not still have an equitable title which might constitute an insurable interest which would be covered by a policy like the one issued to the plaintiff in this case, nor that the unrecorded defeasance was not admissible in evidence against the defendant. Here the question is whether the plaintiff had an insurable interest at the time the policy was issued.

The policy appears to have been issued without any formal application, or any representation by the plaintiff. And upon the case stated in the bill of exceptions, there is nothing to show that the findings of the court, that the plaintiff, in procuring the policy in his own name, and in making the representations contained in the proofs of loss, were not warranted by the evidence.

Exceptions overruled.