30 Me. 414 | Me. | 1849
— The ninth article of the by-laws of the company, provides among other things, that if the assured shall have sold or alienated the property in whole or in part, without having transferred the policy to the purchaser or the alienee, with the consent of the company, then the policy shall be void and the whole amount of the premium shall be forfeited to the company. The case agreed by the parties does not show, that in the sale or alienation made, (if any was made,) by the plaintiff, of the property insured, he had in any manner the consent of the company. The question upon this branch of She case then is, whether there was such a sale or alienation of the property insured, or any part thereof, as contemplated by the parties in the policy.
Immediately before the transaction, relied upon in the defence as an alienation, the wife of the plaintiff, under the will of her former husband, had a life estate in one undivided
The deed from the plaintiff and his wife, passed to the grantee a freehold estate, subject to be defeated by a breach of the condition. By well established principles of law, an estate of freehold which has vested cannot fail by the omission of the grantee to perform the condition, without an entry for the breach of such condition. This rule however is not universally true. An exception is where the person, who is to be benefited by the condition, already has the possession. Co. Litt. 218, a. The time had not arrived on the event of the loss, when Cartland was bound to perform the condition ; and he being in possession, the exception to the general rule mentioned could not apply. The deed of the two-thirds of the land from the plaintiff passed to the grantee, all the interest which the grantor had in the land and the buildings attached thereto; the two deeds therefore conveyed to Cartland a title to the land and the buildings. It cannot be denied that this taken by itself constituted an alienation, which is defined
The right to enter upon one third of the property conveyed by the plaintiff and his wife, after a breach of the condition, would be for a failure in the grantee to do what was for the wife’s benefit alone, and so far at least as she was the exclusive owner, the husband could exercise no control without her consent. Statutes of 1844, chap. 117, and of 1847, chap. 27. After her death no interest would exist in the husband, so far as the land, in which she had a life estate is concerned, if he survived her, according to the facts in the case.
By the mortgage the fee in the land passed to the plaintiff, as between the parties thereto, and he had the right to enter as well before as after the breach of the condition. But his estate in the house and the whole of the premises was essentially changed by the entire transaction. The taking of the mortgage did not restore him to the situation in which he stood before the conveyance. He has by the mortgage an interest in all the land, whereas he had none whatever before, in two-thirds thereof, and none in the remainder, excepting the right of his wife. If the plaintiff had no title to the house before the conveyance, he was not possessed of any insurable interest. If the house was built by him, under such authority as gave any right thereto, he had in it, the entire title. By the transaction of the 17th of September, 1844, Cartland acquired
In Eaton v. Whitney, 3 Pick. 484, the Court say, “ the mortgage is in fact but a chose in action, at least until entry to foreclose, and although the legal effect of the mortgage is to give an immediate right of entry, or of an action to the mortgagee, yet the estate does not become his in fact, till he does some act to divest the mortgager, who to all intents and purposes, remains the owner of the land, till the mortgagee chooses to assert his rights under the mortgage.” Again, “ the equity of redemption, is considered to be the real and beneficial estate, tantamount to the fee at law, and it is accordingly held to be descendible, by inheritance, devisable by will and alienable by deed, precisely as if it were an absolute estate at law.” 4 Kent’s Com. Lecture 57, page 153. This interest of the mortgager continues till foreclosure; the entry for that purpose is merely to fix the time, when the three years, which is to cause it, shall commence. Smith v. People’s Bank, 24 Maine, 185.
The interest of a mortgager in property in the situation in which this was at the time of its destruction, is an insurable interest ; and in Massachusetts, it has been held, that where a house insured against fire, had been mortgaged by the assured, and his right to redeem had been seized on execution at the time of effecting the policy, and he did not state this at the time he applied for the policy, it was not a material concealment.
To constitute an alienation of property, it is not necessary, that there should be an absolute transfer, of the whole or any distinct portion of it. But if there has been such disposition of it, that any property therein has been passed to another, it
In the policy given to the plaintiff, as is usual in such cases, the defendants took care, that it should not become a wagering policy, and provided, that the assured should hold the interest until it should be changed by their own consent. “ Mutual offices should have the power of exercising a discretion, in the selection of persons, whom they may admit to membership, and whose property they may insure. The character of the person, insured may be a subject of importance. If by conveyance of the estate and the assignment of the policy, the purchaser would stand in the place of the insured, and be entitled to indemnity under the policy, the office might be defeated of this right of selection.” Lane v. M. M. Fire Insurance Co. 3 Fairf. 44.
It-may perhaps be fairly inferred, that the mortgage given by Cartland was- for security of money due on account of the house, and the life estate of the plaintiff’s wife ; but whether the sum was regarded as the whole of the consideration for the house or not; or whether any payment was made therefor at the time of the conveyance does not appear. The mortgager had it in his power by the payment of the sum secured to take away entirely the interest of the plaintiff; and that such was his design, must be presumed. In no event could the plaintiff’s interest at any given time, be greater than the sum which should then be due, if redemption should ever take place. As thé sum should be reduced, the interest would diminish in the same proportion. “ Generally speaking,” says C. J. Makshali,, in Peter’s S. C. Rep. vol. 2, page 25, “ insurances against fire are made in the confidence, that the assured will use all the precáutions, to avoid the calamity insured against, which would be suggested by his interest. The extent of his interest, must always influence the underwriters in taking or rejecting the risk, and in estimating the premium.”
We cannot doubt that there was such an alienation as to make void the policy.
Several other points were raised and discussed in argument;