56 Ga. App. 742 | Ga. Ct. App. | 1937
Lead Opinion
Ful-Kalb Incorporated sued the Atlanta Title & Trust Company on a title policy insuring the plaintiff against all loss or damage not exceeding $350 which it might sustain by reason of defects in the title to premises therein described. The original suit was only for attorney’s fees and court costs. The petition alleged that plaintiff furnished defendant with a copy of the suit against it, attacking the title insured, but refused to permit the defendant to defend the action or to furnish counsel for the defense thereof, for the reason that it was contrary to law and against public policy. The policy sued on provides that defendant shall at its own cost and charges defend the party guaranteed in all actions of ejectment, etc.; that it shall be the duty of the
The Code, § 9-403, authorizes the title company to insure titles, and to employ attorneys to defend suits to which it is or may be a party. It was an interested party, and had such an interest in the suit as would entitle it to defend the case by counsel. This is true whether or not the contract amounts to an agreement by the defendant to vouch the title company into court. Eeasonably construed, the contract means that the title company shall be permitted to defend, by employing attorneys at law, suits brought against titles it insures; and that if not permitted to do so, it shall not be liable on the contract. The only purpose of a notice, of such a suit to the title company would be for an opportunity to prepare a defense and defend. We think that where the assured breaches the contract by refusing the company this right, it is precluded from a recovery on the contract, which was an entire contract. The general demurrer to the petition should have been sustained.
It is unnecessary to rule on the question whether an amendment filed after the bill of exceptions was filed will be considered, as the general demurrer would lie against the petition as amended. It was error to overrule the general demurrer.
Judgment reversed.
Concurrence Opinion
concurring specially. The title company issued a guarantee policy insuring, within limitations expressed therein, the title of the insured to certain described real estate. The policy provides that the title company “shall at its own cost and charges defend the party guaranteed in all actions of ejectment or other action or proceeding founded upon a claim of title, incumbrance, or defect which existed prior in date to this policy, and not excepted herein. . . In case such action or proceeding
In the petition in the present suit of the insured against the
The plaintiff in its original petition, before it was amended, which was on the date the bill of exceptions was signed, sued for, and alleged as his measure of damage, only the amount of court costs which accrued on the case in which the plaintiff defended the title to the property, and an amount representing the value of the services of the plaintiff’s attorney in that litigation. The only obligation resting upon the defendant to pay any expenses of any such litigation is contained in the provision of the policy that the defendant title company “shall at its own cost and charges defend the party guaranteed,” which is the plaintiff, in a litigation founded upon any claim of title to the land covered by the policy. The defendant is not liable for the court costs and charges incurred in such suit, where the defendant itself did not defend the suit, but was prevented from so doing by the action of the plaintiff, as alleged in the petition. The amount sued for is not recoverable. Therefore the petition failed to set out a cause of action, and the court erred in not sustaining the general demurrer.
The plaintiff’s amendment' to the petition, which appears of record, was allowed by order of the court on the same day on which the bill of exceptions was certified by the judge. It does not appear whether the amendment was allowed before or after