Imágenes de páginas
PDF
EPUB

one, and the real party in interest is the one aggrieved, because he is the real party, or where, since the commencement of the action, there has been by death or in some other way a devolution of the entire interest or property involved in the litigation to some other person, who has thus become the party aggrieved.

Under the same statute, it was held in Jones v. Woodin, 164 App. Div. 79, 149 N. Y. Supp. 377, that receivers of a corporation appointed by the court of another state to protect its property, not being entitled to be substituted for it as the defendant in the action, could not appeal from a judgment against it.

A receiver who is not a party cannot appeal as matter of right, under a statute allowing such an appeal only by one of the parties or his personal representative, from an order directing him to pay claims from the funds in his hands, of third persons not parties to the original suit. Dorsey v. Sibert, 93 Ala. 312, 9 So. 288.

A receiver appointed pending an action by the parties for whose property he was appointed receiver cannot enter an appeal in the action in his own name as receiver, without first having himself made a party thereto, since no one has a right to appeal except parties to the case in which the appeal is entered. Dupree v. Drake, 94 Ga. 456, 19 S. E. 242.

R. E. H.

[blocks in formation]

Statement by Beach, J.:

The plaintiff on November 13, 1911, brought from one Paladino the stock and fixtures of a barber shop known as No. 600 Bank street, in the city of Waterbury, and paid therefor $400, which he had borrowed for that purpose from one Criscitiello, his brother-in-law, who lived in New York city. The loan was made on the agreement that the lender should be secured by a bill of sale of the property, and, for the purpose

CONNECTICUT SUPREME COURT OF of securing Criscitiello, the plaintiff had

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]

As to vendor's lien as affecting sole and unconditional ownership, see note to Insurance Co. of N. A. v. Pitts, 7 L.R.A. (N.S.) 627.

Concerning vendee under executory contract as owner where vendor holds title, see note to Arkansas Ins. Co. v. Cox, 20 L.R.A. (N.S.) 775.

As to outstanding contract of sale of property as defeating sole and unconditional ownership by vendor, see notes to Insurance Co. of N. A. v. Erickson, 2 L.R.A. (N.S.) 512, and Sharman v. Continental Ins. Co. 52 L.R.A. (N.S.) 670.

It is held, in jurisdictions where the common-law theory is in force, under which the

the vendor make out a bill of sale directly to him. Plaintiff agreed to pay Criscitiello each week as much as he could spare after paying the expenses of conducting the shop. On May 2, 1912, when the policy in question was issued, the plaintiff had paid $250, and still owed the balance, and Criscitiello still held the bill of sale as security. At that time other fixtures and supplies had been bought by the plaintiff after the bill of sale was given and were not covered by it. The policy of insurance was in standtitle passes to the mortgagee, as well as in those where the lien theory is in force, that a mortgage or instrument given as security does not violate a clause in a policy providing that it shall be void if the interest of the insured is other than the sole and unconditional ownership, since the insured is considered to be the owner as to all the world except the mortgagee.

This result was reached in the following cases, although the mortgages executed by the insured passed the title to the property to the mortgagee: Hubbard v. Hartford F. Ins. Co. 33 Iowa, 325, 11 Am. Rep. 125 (chattel); Dolliver v. St. Joseph F. & M. Ins. Co. 128 Mass. 315, 35 Am. Rep. 378 (real estate); Judge v. Connecticut F. Ins. Co. 132 Mass. 521 (chattel).

The court in Dolliver v. St. Joseph F. & M. Ins. Co. supra, said: "It has long been settled in this commonwealth that, as to all the

ard form and placed $100 on the stock of
barber shop supplies and $400 on the furni-
ture and fixtures while contained in the
shop. The policy contained the usual pro-
visions that it should be void "if the in-
terest of the insured be other than uncondi-
tional and sole ownership,
or if
the subject of insurance be personal prop-
erty and be or become encumbered by a
chattel mortgage." Soon after the policy
was issued, Criscitiello demanded payment
of the balance due him, and the plaintiff
borrowed $150 for that purpose from an-
other brother-in-law, Copozzi, upon a simi-
lar agreement to secure the lender by a bill
of sale of the property, and for that pur-
pose caused Criscitiello to execute a bill
of sale to Copozzi. Neither Criscitiello nor
Copozzi took possession of any part of the
property covered by the bills of sale, but
the plaintiff remained in exclusive posses-
sion thereof until March 17, 1913, when all
the stock and fixtures in the shop, being
then of the value of $766, were destroyed
by fire. The bills of sale were recorded
in the town clerk's office of the town of
Waterbury.

Mr. William J. McKenna for appellant.

.

Mr. John H. Cassidy, for appellee: Plaintiff's interest in the insured property was that of unconditional and sole ownership.

Hough v. City F. Ins. Co. 29 Conn. 10, 76 Am. Dec. 581; Security Ins. Co. v. Kuhn, 207 Ill. 166, 69 N. E. 822; Imperial F. Ins. Co. v. Dunham, 117 Pa. 460, 2 Am. St. Rep. 686, 12 Atl. 668; Dupreau v. Hibernia Ins. Co. 76 Mich. 615, 5 L.R.A. 671, 43 N. W. 585; Hartford F. Ins. Co. v. Keating, 86 Md. 130, 63 Am. St. Rep. 499, 38 Atl. 29; Kronk v. Birmingham F. Ins. Co. 91 Pa. 300; Miller v. Alliance Ins. Co. 19 Blatchf. 308, 7 Fed. 649; Sprigg v. American Cent. Ins. Co. 101 Ky. 185, 40 S. W. 575; Wainer v. Milford Mut. F. Ins. Co. 153 Mass. 335, 11 L.R.A. 598, 26 N. E. 877; Milwaukee Mechanics' Ins. Co. v. Rhea, 60 C. C. A. 103, 123 Fed. 9; Clay F. & M. Stock Ins. Co. v. Beck, 43 Md. 358; Friezen v. Allemania F. Ins. Co. 30 Fed. 352; Forward v. Continental Ins. Co. 142 N. Y. 382, 25 L.R.A. 637, 37 N. E. 615; Norton v. Doolittle, 32 Conn. 405; State v. Hurlburt, 82 Conn. 235, 72 Atl. 1079; Sinclair, Scott Co. v. Miller, 80 Conn. 303; 68 Atl. 257; Morin v. Newbury, 79 Conn. 338, 65 Atl. 156.

To effect a breach of condition against encumbrances, the mortgage must be both

world except the mortgagee, a mortgagor | public F. Ins. Co. 32 Hun, 365 (real is the owner of the mortgaged lands; at estate, but see infra, as to this case); least till the mortgagee has entered for Huff v. Jewett, 20 Misc. 35, 44 N. possession. This being the law, and Y. Supp. 311 (real estate); Omaha F. Ins. the mortgagees not being in possession of Co. v. Thompson, 50 Neb. 580, 70 N. W. 30 the premises, the plaintiff's assignor might (chattel); Kronk v. Birmingham F. Ins. Co. well be described in a policy of insurance 91 Pa. 300 (bill of sale of chattels); Buras the owner of the property insured: and, lington F. Ins. Co. v. Coffman, 13 Tex. Civ. inasmuch as his estate was in fee simple, App. 439, 35 S. W. 406 (real estate); Alamo not an estate for life, and not a base, qual- F. Ins. Co. v. Lancaster, 7 Tex. Civ. App. ified, or conditional fee, it might well be described as the entire and unconditional 677, 28 S. W. 126 (real estate); Friezen v. ownership; and, as he had no joint tenant Allemania F. Ins. Co. 30 Fed. 352 (chattel); nor tenant in common, his estate was well Union Assur. Soc. v. Nalls, 101 Va. 613, 99 described as the sole ownership. As be- Am. St. Rep. 923, 44 S. E. 896 (chattel); tween him and the defendant, the mortgages Western Assur. Co. v. Temple, 31 Can. S. C. and the lease were mere encumbrances 373 (real estate). See also the decision in on his title, not affecting its char- PETELLO V. TEUTONIA F. INS. Co. acter as entire, and not changing it from an absolute to a conditional estate ownership. Even as between him and the mortgagees, the mortgagees' estate was the conditional one, determinable by satisfaction of the condition set out in the mortgage deed. There was no joint tenancy or tenancy in common of the mortgagor and the mortgagees."

or

In Lancashire Ins. Co. v. Monroe, 101 Ky. 12, 39 S. W. 434, the court said: "It is insisted, first, that this mortgage affected the ownership of the property, and the appellees, on account of it, were not its sole and unconditional owners. This is not now the law. When the legal title was regarded as in the mortgagee there might have been some reason for the contention that the And a like result was reached in the fol- mortgagor was not the sole and unconditional owner; but even then the mortlowing cases where the mortgages apparently created only a lien upon the insured gagor the owner in fact, and the property: Lancashire Ins. Co. v. Monroe, title was in the mortgagee only as a fic101 Ky. 12, 39 S. W. 434 (chattel); Mc- tion, to the end that he might foreclose. Clelland v. Greenwich Ins. Co. 107 La. 124, Now the legal title is held to be in the 31 So. 691 (chattel); Standard Leather Co. mortgagor, and he is truly the sole and unv. Mercantile Town Mut. Ins. Co. 131 Mo. conditional owner. And such must have been App. 701, 111 S. W. 631 (real estate); the intent of the draftsman of the polHare v. Headley, 54 N. J. Eq. 545, icy, for if by the words, 'sole and un35 Atl. 445 (real estate); Woodward v. Re-conditional owner' the rights of mortgagors

was

valid and operative as an encumbrance. It | must be technically a mortgage.

Fitchner v. Fidelity Mut. F. Asso. 103 Iowa, 276, 68 N. W. 710, 72 N. W. 530; Insurance Co. of N. A. v. Wicker, 93 Tex. 390, 55 S. W. 740; Watertown F. Ins. Co. v. Grover & B. Sewing Mach. Co. 41 Mich. 131, 32 Am. Rep. 146, 1 N. W. 961; Hanscom v. Home Ins. Co. 90 Me. 333, 38 Atl. 324; Morin v. Newbury, 79 Conn. 338, 65 Atl. 156; Patchin v. Rowell, 86 Conn. 372, 85 Atl. 511; State v. Hurlburt, 82 Conn. 235, 72 Atl. 1079; Sinclair, Scott Co. v. Miller, 80 Conn. 303, 68 Atl. 257; Kronk v. Birmingham F. Ins. Co. 91 Pa. 300; Pennsylvania F. Ins. Co. v. Hughes, 47 C. C. A. 459, 108 Fed. 497; Caplis v. American F. Ins. Co. 60 Minn. 376, 62 N. W. 440.

and mortgagees were intended to be af-, fected, the additional words if the property be or become encumbered by a chattel mortgage,' would have been wholly useless."

The view has been taken in some cases that a clause providing that "if the interest of the insured be other than unconditional and sole ownership" the policy shall be void refers to the interest, and not to the title of the insured, and that the existence of a mortgage does not violate such provision. Dumas v. Northwestern Nat. Ins. Co. 12 App. D. C. 245, 40 L.R.A. 358 (chattel); Citizens' Mut. F. Ins. Co. v. Conowingo Bridge Co. 113 Md. 430, 77 Atl. 378 (real estate); Clay F. & M. Stock Ins. Co. v. Beck, 43 Md. 358 (real estate); Westchester F. Ins. Co. v. Weaver, 70 Md. 536, 5 L.R.A. 478, 17 Atl. 401, 18 Atl. 1034 (chattel); Morotock Ins. Co. v. Rodefer Bros. 92 Va. 747, 53 Am. St. Rep. 848, 24 S. E. 393 (chattel); Manhattan F. Ins. Co. v. Weill, 28 Gratt. 389, 26 Am. Rep. 364 (real estate); Wolpert v. Northern Assur. Co. 44 W. Va. 734, 29 S. E. 1024 (chattel); Teter v. Franklin F. Ins. Co. W. Va., 82 S. E. 40 (real estate).

The court in Manhattan F. Ins. Co. v. Weill, 28 Gratt. 389. 26 Am. Rep. 364, said: "The question then in this case turns upon the construction to be given to the condition in the policy above quoted. Can that be construed to be a warranty on the part of the assured that there was no encumbrance on the property insured? This condition does not refer to the legal title, but to the interest of the assured in the property; that he warranted to be no other than the entire unconditional and sole ownership of the property.' This was no warranty against liens and encumbrances. His interest was the sole ownership. The fact that he had mortgaged the property did not make the mortgagee a joint owner with him. The fact that he may have encumbered it with a deed of trust does not make the cestui que trust a joint owner. The fact that there may have been liens for taxes, or liens by judgment, did not affect his ownership. He is still the sole owner, though he may have encumbered it, or liens

Mr. Francis J. Hogan also for appellee.

Beach, J., delivered the opinion of the court:

The first assignment of error raises the question whether the bills of sale given under the circumstances stated in the finding avoid the policy as a breach of the condition that the interest of the insured should be that of sole and unconditional ownership.

As between the parties, the transaction was one to which a court of equity might give the effect of a mortgage, although the bill of sale was absolute in form. It could have no other effect. Morin v. Newbury, 79 Conn. 340, 65 Atl. 156; Lovell v. Hammond Co. 66 Conn. 500, 510, 34 Atl. 511.

may exist against it, and the existence of such is no breach of a condition declaring sole ownership."

In Ellis v. Insurance Co. of N. A. 32 Fed. 646, a policy on realty containing a provision that it should be void if the insured was not the sole, absolute, and unconditional owner was claimed to be avoided by reason of an existing mortgage; but it was held that the provision referred not to the matter of encumbrances, but to the character and quality of the title, whether that of a fee simple or leasehold, etc., and that the policy was therefore not vitiated by reason of the existing mortgage.

And in American Artistic Gold Stamping Co. v. Glens Falls Ins. Co. 1 Misc. 114, 20 N. Y. Supp. 646, it was held that the fact that a chattel mortgage existed on the insured property did not violate a condition as to sole and unconditional ownership, the court holding that this provision had reference only to the quality of the insured's title, not to liens and encumbrances on the property.

But in Woodward v. Republic F. Ins. Co. 32 Hun, 365, there was held to be a breach of the condition against sole, entire, and unconditional ownership as to certain personal property on which a chattel mortgage existed, the court holding that the effect of a chattel mortgage was to convey the title to the mortgagee so that the mortgagor's interest was that of an equity of redemption, and nothing more.

The position has been taken by the United States Supreme Court that the intention of the insurer in inserting a provision for the unconditional and sole ownership was to protect itself against all conditional transfers.

Thus, in Hunt v. Springfield F. & M. Ins. Co. 196 U. S. 47, 49 L. ed. 381, 25 Sup. Ct. Rep. 179, a condition for the uncondi tional and sole ownership of the insured property and for the nonexistence of any chattel mortgage thereon was held to be broken where certain trust deeds of the property had been executed to secure pay ment of money, the legal effect of which was practically the same as a chattel mort

It is generally held that outstanding | Mut. F. Ins. Co. 115 Wis. 402, 91 N. W. mortgages and liens do not constitute a 1014; Dolliver v. St. Joseph F. & M. Ins. breach of a condition in a fire insurance Co. 128 Mass. 315, 35 Am. Rep. 378; Union policy that the interest of the insured is Assur. Soc. v. Nalls, 101 Va. 613, 99 Am. that of sole and unconditional ownership. St. Rep. 923, 44 S. E. 896; Phoenix Ins. Co. Cooley speaks of this as the well-settled v. Public Parks Amusement Co. 63 Ark. rule, and it seems to be followed, not only 187, 37 S. W. 959; Hartford F. Ins. Co. v. in states where the effect of a mortgage is Enoch, 72 Ark, 47, 77 S. W. 899. The merely to create a lien, but also in states same rule is applied to a vendor's lien on where the mortgage is treated as a convey-land not wholly paid for. Insurance Co. of ance of the title. 2 Cooley, Briefs on Ins. N. A. v. Pitts, 88 Miss. 587, 41 So. 5, 7 p. 1378; 19 Cyc. 694; Carson v. Jersey City | L.R.A. (N.S.) 627, 117 Am. St. Rep. 756, 9 Ins. Co. 43 N. J. L. 300, 39 Am. Rep. 584; Ann. Cas. 54, and cases cited in note. Hare v. Headley, 54 N. J. Eq. 545, 35 Atl. 445; Clay F. & M. Stock Ins. Co. v. Beck, 43 Md. 358; Westchester F. Ins. Co. v. Weaver, 70 Md. 536, 5 L.R.A. 478, 17 Atl. 401, 18 Atl. 1034; Wolf v. Theresa Village gage with power of sale. The court said: "In passing upon the identity of the two instruments in this case we may properly refer to the further provision of the policy that the interest of the insured must be an unconditional and sole ownership. While the breach of this condition is not specifically urged in the briefs, we may treat it as explanatory of the other condition against the existence of chattel mortgage. The company evidently intended by this provision to protect itself against conditional transfers of every kind. The contract of the company is a personal one with the insured, and it is not bound to accept any other person to whom the latter may transfer the property."

And the decision in this case was followed in Shoucair v. North British & M. Ins. Co. 16 N. M. 563, 120 Pac. 328, where a clause providing that a policy should be void if the interest of the insured should be other than unconditional and sole was held to be violated because of the existence of a chattel mortgage on the insured property.

It has been held that the interest of one who has executed a deed in fee simple, although as security for a debt, is "other than unconditional and sole ownership," as the effect of such a deed is to convey the legal title to the grantee. Orient Ins. Co. v. Williamson, 98 Ga. 464, 25 S. E. 560, subsequent appeal in 100 Ga. 791, 28 S. E. 914. See, however, the decision in PETELLO V. TEUTONIA F. INS. Co. and the reference therein to the above cases.

And in O'Connor v. Decker, 30 Pa. Super. Ct. 579, it was held that a policy providing that it should be void if the interest of the insured be other than the unconditional and sole ownership, was avoided by the execution of a deed absolute in form under a parol agreement that the deed should be held as collateral security for the payment of a debt, since the revesting of title depended wholly upon the will of the grantee.

In Fireman's Fund Ins. Co. v. Barker, 6 Colo. App. 535, 41 Pac. 513, where the policy contained a provision among others that

The defendant has pointed out but one case in which this condition that the interest of the insured should be that of sole and unconditional ownership has been held to be broken solely because the interest of it should be void if the interest of the insured be other than unconditional and sole ownership, the policy was held to be avoided because of the existence of two mortgages, one of which was executed before and one after the issuance of the policy. The decision in the case, however, apparently rested principally upon a provision against concealment and a change of interest.

In the abstract in Home Ins. Co. v. Allen, 13 Ky. L. Rep. 95, it is stated that where a policy provides "that if the interest of the assured in the property be other than the entire, unconditional, and sole ownership thereof for the use and benefit of the assured, the policy shall be void," a lien upon the property created by the voluntary act of the parties will invalidate the policy. The nature of the encumbrance under consideration does not appear.

In United Firemen's Ins. Co. v. Kukral, 7 Ohio C. C. 356, 4 Ohio C. D. 633, the trial court refused to charge that if the insured property was encumbered by a mortgage at the time the policy was issued the interest of the insured was not the entire, unconditional, and sole ownership within the requirement of the policy, and it was held that although there might have been a mortgage on the property, and in that sense the ownership might not have been entire, unconditional, and sole, yet the insured might be entitled to recover under § 3643, Rev. Stat. (the terms of which do not appear), unless there was fraud on his part.

In Hawley v. Liverpool, L. & G. Ins. Co. 102 Cal. 651, the insured was held not precluded from recovering on a policy containing a condition that it should be void if the interest of the insured in the property was other than that of sole and unconditional ownership where she stated in her application that the insured property was encumbered, although the mortgagee, being unable to reach the mortgagor, brought a suit to prevent his mortgage from outlawing, but subsequently withdrew it and canceled the mortgage and took a deed from the insured which the evidence showed was intended as a mortgage. J. T. W.

the insured was that of a mortgagor in possession. With that exception the cases relied on are either cases where the interest of the insured was that of a conditional vendee, or cases where the policy was avoided for the breach of some other condition. In Williamson v. Orient Ins. Co. 100 Ga. 791, 28 S. E. 914; Orient Ins. Co. v. Williamson, 98 Ga. 464, 25 S. E. 560, a distinction was drawn between an ordinary mortgage, which, under the state Code, created merely a lien on the property, and an absolute conveyance of title intended as a security; the latter being held to avoid the policy as a breach of the condition. We think, however, that this distinction is not well taken, for, as pointed out in Imperial F. Ins. Co. v. Dunham, 117 Pa. 460, 2 Am. St. Rep. 686, 12 Atl. 668, the parties might have contracted with reference to the state of the title, but preferred to use the word "interest;" and so the condition is to be understood as referring to actual or equitable ownership, and not as requiring the insured to hold an absolute legal title. In accordance with this view, it is generally held that one in possession of real estate under an obligatory contract to buy, who has not paid in full, and therefore has not yet become the legal owner, is nevertheless a sole and unconditional owner within the meaning of the standard form of policy. Arkansas Ins. Co. v. Cox, 20 L.R.A. (N.S.) 775, and note (21 Okla. 873, 129 Am. St. Rep. 808, 98 Pac. 552).

The rule appears to be otherwise in the case of conditional vendees of personal property bought on the instalment plan when the title remains in the seller. Arkansas Ins. Co. v. Cox, supra; Dumas v. Northwestern Nat. Ins. Co. 12 App. D. C. 245, 40 L.R.A. 358; Dow v. National Ins. Co. 26 R. I. 379, 67 L.R.A. 479, 106 Am. St. Rep. 728, 58 Atl. 999; Lasher v. St. Joseph F. & M. Ins. Co. 86 N. Y. 423; McWilliams v. Cascade F. & M. Ins. Co. 7 Wash. 48, 34 Pac. 140.

So far as the authorities attempt to lay down any general rule, it is that if the interest of the insured is conditional or contingent, or if it is for years only or for life, or in common, it is not that of sole and unconditional ownership; but where the entire loss, if the property is destroyed by fire, must fall upon the party insured, the reason and purpose of this provision does not seem to exist.

We find but one case exactly in point. In that case, as in this, a bill of sale had been given, absolute in form, but really intended

to secure the lender for the loan of the purchase money with which the property was bought, and it was held, assuming that the bill of sale was delivered before the policy was issued, that the latter was not void under the condition as to sole and unconditional ownership. Kronk v. Birmingham F. Ins. Co. 91 Pa. 300.

The second assignment of error raises the question whether the policy was avoided for a breach of the condition that the property should not be or become encumbered by a chattel mortgage. The term "chattel mortgage" is a term of art, and is to be construed, as it was doubtless intended to be understood, as referred to that particular kind of an encumbrance having the known legal effect of a chattel mortgage. The delivery and record of a bill of sale absolute in form, but intended as security, without change of possession, does not have the legal effect of a chattel mortgage. As was said in Morin v. Newbury, 79 Conn. 340, 65 Atl. 156, of such a transaction: "The instrument is neither in form nor name a mortgage. It is not one to which the law attaches any peculiar virtue when recorded. It had no place upon the records and could serve no legal purpose there. Its execution and delivery accomplished nothing, aside from its value as proof, which a parol agreement would not."

If the insurance company intended that the policy should be avoided in case the property was subjected to any kind of a lien which a court of equity might enforce, the language used is not appropriate to that end. Having regard to the rule that provisions for forfeitures contained in insurance policies are to be construed with reasonable strictness in favor of the insured, we think that these bills of sale, given under the circumstances stated in the finding, are not chattel mortgages within the meaning of the policy. Newbury, 79 Conn. 338, 65 Atl. 156; State v. Hurlburt, 82 Conn. 232, 236, 72 Atl. 1079; Rowland v. Home Ins. Co. 82 Kan. 220, 136 Am. St. Rep. 104, 108 Pac. 118; Humboldt F. Ins. Co. v. W. H. Ashley Silk Co. 107 C. C. A. 274, 185 Fed. 54; Phoenix Ins. Co. v. Fleenor, 104 Ark. 119, 148 S. W. 650; Monongahela Ins. Co. v. Batson, 111 Ark. 167, 163 S. W. 510.

Morin v.

The other assignments of error are dependent on the conclusions already stated, and do not require separate discussion. There is no error.

In this opinion the other judges concur.

« AnteriorContinuar »