Cardwell v. Virginia State Insurance, 73 So. 466

Cardwell v. Virginia State Insurance

73 So. 466 | Ala. | 1916

ANDERSON, C. J.—

(1) It is generally held that an execu-tory contract of sale does not constitute a breach of a provision in an insurance policy against “a change of' interest, title or possession,” where there has been no conveyance of the legal title or delivery of the possession of the property. Where, however, under a contract for the sale of the insured property, the vendee is placed in possession, it is held that this constitutes a breach of such a provision.—Pomeroy v. Ætna Insurance Co., 86 Kan. 214, 120 Pac. 344, 38 L. R. A. (N. S.) 142, Ann. Cas. 1913C, 173, and note. Indeed, our own court seems to attach considerable importance to the fact that the vendee was not put in possession in the cases of Schloss & Kahn v. Westchester Insurance Co., 141 Ala. 566, 37 South. 701, 109 Am. St. Rep. 58, and Jones v. Capital City Insurance Co., 122 Ala. 421, 25 South. 790.

(2) We think, however, that the contract between W. D. and W. M. Cardwell of January 11, 1911 (which will be set out by the Reporter), is an unconditional contract of sale, which could be enforced by either party thereto. It is true it speaks, of rent and authorizes the same to be credited upon the first, purchase-money installment, but there is nothing in said contract abrogating or authorizing a forfeiture of the contract of sale in case the vendee fails to meet the purchase-money installments, or for a refunding of the cash payment. We therefore agree with the chancery court in holding that there had been a forfeiture by the complainant of the anti-alienation clause of the policy contract. See Com. U. A. Co. v. Ryalls, 169 Ala. 517, 53 South. 754.

(3, 4) Neither are we persuaded that the complainant can escape the forfeiture upon the theory that the land in question was the complainant’s homestead and that the contract of sale was void because not properly joined in by the wife. It may *214Rave been the homestead prior to the sale, but the evidence shows •that it had been abandoned as such prior to the execution of the contract. The complainant stated that he moved away about Christmas in the fall of 1910, and the contract was made January 18, 1911. Moreover, the contract itself recites a renting of the premises to W. M. Cardwell on or before the 18th of January, 1911, which would of itself be an abandonment of the homestead unless followed up by a declaration under section 4192 of the Code of 1907.—Land v. Boykin, 122 Ala. 627, 25 South. 172; Boyle v. Shulman, 59 Ala. 566; Murphy v. Hunt, 75 Ala. 438; Beckert v. Whitlock, 83 Ala. 123, 3 South. 545; Turner v. Turner, 107 Ala. 465, 18 South. 210, 54 Am. St. Rep. 110; Bland v. Putman, 132 Ala. 613, 32 South. 616.

We think that the answer sufficiently sets up the forfeiture by the complainant of the policy contract, and the decree of the ■chancery court is affirmed.

Affirmed.

Mayfield, Somerville, and Thomas, JJ., concur.