30 Pa. Super. 435 | Pa. Super. Ct. | 1906
Opinion by
The assignments of error which refer to the allowance of the amendment of plaintiff’s statement are not well founded. The statement as originally filed claimed of the defendant, “ the sum of eleven hundred dollars, according to a certain policy of insurance, in writing .... a copy of said policy is hereto attached and made part hereof.” Under the provisions of the
The policy of insurance was dated and issued August 28,
The plaintiff and his wife, Mary Chulek, by deed dated December 2, 1902, and recorded on January 2, 1908, conveyed the lot of land and the building insured, which stood upon it, to Michael Kawash; who by deed dated January 2, 1903, and recorded February 18,1903, conveyed the same to Mary Chulek, the wife of plaintiff. The record title was, by force of these deeds, vested in Mary Chulek and so continued until after the fire, on November 14, 1903, and down until the time of the trial in the court below, the plaintiff having taken no steps to set aside those conveyances. The defendant company offered these deeds in evidence and contended that there had been a change in the “ interest and title of the subject of insurance,” within the meaning of the covenant of the policy above recited,
The ease with which the solemn covenants of a contract may be swept away is illustrated in this case. The only testimony tending to establish the fraudulent character of the deed was that of the plaintiff who made it and that of his wife and Kawash who are alleged to have perpetrated the fraud which induced its execution. The plaintiff testifies he was deceived and his wife and his friend Kawash, brazenly testify that they were guilty of a fraud, and as a consequence the insurance company, which was no party to the fraud, is deprived of the benefit of a condition upon which its liability was by its contract made to depend. The whole fabric of the allegation of fraud is founded upon the assertion that the plaintiff was ignorant of the English language, and did not know that he was signing a deed, yet he has lived in this country for eighteen years and
The fraudulent acts which are alleged to have induced the conveyance by plaintiff affected individual interests only; the deed was not void but voidable only as to Chulek, who must exercise his election to reclaim the property within a limited time, or the title which passed under the deed will, by virtue of the Act of April 22, 1856, sec. 6, P. L. 532, become indefeasible. As against a bona fide purchaser for value and without notice of the fraud, the right of Chulek to set aside the deed could not even now prevail. Such transactions are only relatively void, not so void as to prevent the party intended to be injured by the fraud from renouncing the privilege which the law allows him of rejecting the transaction altogether, or from ratifying it, and thus making it his own: “ And not so void as to make the wrongdoing party a trespasser for acting under it, or as to be no inconvenience or obstruction to the party seeking to be restored to his rights, especially if it has been in whole or in part performed: ” Pearsoll v. Chapin, 44 Pa. 9; Negley v. Lindsay, 67 Pa. 217; Christy v. Sill, 95 Pa. 380; Lyon v. Phillips, 106 Pa. 57; Inlow v. Christy, 187 Pa. 186.
Chulek was, prior to the execution of the conveyances which vested the legal title in his wife, the “ unconditional and sole owner ” of the building, which was “ on ground owned by the insured in fee simple; ” and it was necessary that he should be so in order to comply with one of the conditions of the policy above recited. Did the conveyances which vested the title in his wife work any change in the interest, title or possession of the insured in the subject-matter of the insurance, within the meaning of the above recited covenants of the policy ? Assuming that the conveyances were procured through the fraud of the wife of the insured and Kawash, what was their effect upon the interest of the insured in the property? :The convey
There, had been a change of interest in and title to the property, within the meaning of the contract. It was the privilege of the company to decline to issue the policy, unless the insured agreed that his right to indemnity should be subject to the stipulated condition. The parties were competent to contract, and, in the absence of proof of waiver or grounds of estoppel, the policy is the law of the relation of the insurer and insured. That terminated if the condition was broken, and could not be restored without the express or implied assent of the insurer. Unless, therefore, the plaintiff is relieved from responsibility because he was ignorant of the effect of the instrument which he had executed, he is not entitled to recover. In, the recent case of McCurdy v. Insurance Company, ante, p. 77, our Brother Henderson said, in discussing a condition which avoided a policy: “ The question is not one of good faith on the part of the insured, but one of contract, of absolute obligation, under a mutually understood state of facts.” The defendant had no power to determine what leases, agreements or deeds the plaintiff might execute, but it had the right to protect itself by its contract against the results of his acts, whether he intended. those results or not, so long as the insurer did not induce the acts. The covenant of the policy incorporated for this purpose- was in these words: “ This entire
The lien of the Mendelssohn judgment had expired shortly before the day upon which the deed in question bears date, and proceedings to revive it were not commenced until after
The judgment is reversed and a venire facias de novo awarded.
Hendekson, J., dissents.