11 Pa. Super. 280 | Pa. Super. Ct. | 1899
Lead Opinion
Opinion by
In December, 1891, plaintiff insured his house and barn in the defendant company by a policy to run for five years. Sec-
The language of the act of June 8, 1881, is no more general than is that of the statute of frauds and perjuries of March 21, 1772,1 Sm. L. 389, sec. 1, nor than that of the Act of April 22, 1856, P. L. 532, sec. 4, requiring deeds of trust of land to be in writing. These acts of assembly were passed to prevent the compulsory transfer of title to real estate for breach of contracts unless such contracts were evidenced by writings.
If the plaintiff can show that the transaction was as Ms offer of proof would indicate it to be, it is clear that such a transfer would not be a violation of the 13th section of the policy: Barry v. Hamburg-Bremen Fire Ins. Co., 110 N. Y. 1; Howard v. Ins. Co., 23 Pa. 50; Biddle on Insurance, sec. 213. This being so we conclude that it was error for the court to have excluded this evidence.
Judgment reversed and venire facias de novo awarded.
Dissenting Opinion
dissenting:
Tbe deed from Burkhart to Miller was regular and absolute on its face. Under the act of 1881 the alleged parol defeasance was ineffectual to reduce it to a mortgage. The grantor could not enforce it specifically, nor could he maintain an action for damages for the breach of the parol agreement. It is “ the reduction itself which is forbidden by the act, and this must apply to every means, direct or indirect, by which that result is sought to be reached: ” Molly v. Ulrich, 133 Pa. 41. Whether or not the grantee would reconvey the premises and revest in the grantor tbe estate, depended wholly upon the will qí the former. In the meantime the title and the estate, both at law and in equity, were in him. The deed, therefore, was not a mortgage. To hold that it was would be to give effect to that which the statute says shall have no effect, and which, as Chief Justice Gobodost said in Sankey v. Hawley, 118 Pa. 30, the legislature intended to “abolish utterly,” the oral defeasance. Grant that the execution and delivery of a formal mortgage would not be a breach of the condition of the policy, does it follow that an absolute transfer of the whole title, the estate vesting under it being determinable at the mere will of the grantee (which would have been the entire legal effect of the rejected evidence), is not? Is there anything in the context or in the principle upon which the condition is founded to lead us to suppose that the parties to the policy did not intend to include such a conveyance ? I am unable to find any reasonable ground upon which the policy can be so construed. The deed was what it purported to be, a conveyance in fee simple — a “'transfer of such property,” within the true spirit and intent, as well as the letter of the condition. The contention that the protection of the policy was merely suspended while the title remained out of Burkhart, and was revived when the premises were reconveyed to him, cannot be sustained. By the express terms of ■the policy it became “ null and void, from the date of such .... assignment or transfer.” This was the contract of the parties, and, in the absence of proof of waiver or grounds of estoppel, the law of the relation of insurer and insured. That terminated when the condition was broken by the voluntary act of the insured, and could not be restored without the express or implied assent of the insurer. All of the questions raised