176 Mass. 486 | Mass. | 1900
By his deed to Forbes the plaintiff conveyed all his interest in the buildings insured except an estate for his life in the house. This life estate was carved out of the fee previously owned by him, and was held by the same title as before the conveyance. He sold his entire interest in the barn,, but only part of his interest in the house. The only question is whether the policy was thereby avoided as to his remaining interest in the house.
The defendant contends that the policy is thus avoided, and relies upon the clauses which provide that it shall be void if, without the consent of the defendant, “ the situation, or circumstances affecting the risk, shall, by or with the knowledge, advice, agency, or consent of the insured, be so altered as to cause an increase of such risks,” or “ the said property shall be sold.”
So far as respects the change of circumstances or situation, nothing appears except the deed to Forbes. The burden of proof to show a breach of condition of a policy which has once attached is on the defendant, Orrell v. Hampden Ins. Co. 13 Gray, 431; and even if the clause has reference to what are sometimes called the moral elements of the risk, we cannot say, upon the facts appearing before us, that the risk was increased by the sale, -or that the clause was intended to embrace the changes made by a sale, especially when there is an express provision in the policy relating to that subject. Powers v. Guardian Ins. Co. 136 Mass. 108. Compare also Oakes v. Manufacturers' Ins. Co. 131 Mass. 164.
The defence must, therefore, rest upon the clause as to alienation. Many of the earlier policies of fire insurance contained no condition against alienation. Inasmuch, however, as the contract of insurance is one of indemnity and not a wager, it is manifest that where, before the fire, the insured had parted with his entire interest in the property insured, he suffered no loss by its destruction and needed no indemnity. A total transfer of his interest, therefore, defeated the policy. But any change short of a complete transfer of his entire interest did not have that
In this state of the law insurers began to insert in the policies clauses relating to alienation. These clauses vary in language, and in the examination of the cases on this subject considerable care must be exercised in order to discriminate properly between those cases applicable and those not applicable to the clause which may be under consideration.
The clause in this policy is if “ the said property shall be sold.” Conditions of this kind are strictly construed against the insurer, and the general rule is that such a condition refers only to an absolute transfer of the entire interest of the insured, completely divesting him of his insurable interest. Any sale or transfer short of this is not within the scope of the condition. See, in addition to the cases above cited, Bryan v. Traders’ Ins. Co. 145 Mass. 389; Holbrook v. American Ins. Co. 1 Curtis C. C. 193; Power v. Ocean Ins. Co. 19 La. 28; and the cases collected in 13 Am. & Eng. Encyc. of Law, (2d ed.) 241, and notes.
If it be the intention of the insurers that the contract should be avoided by any partial sale, or by any change short of an absolute sale of the entire interest, there is no difficulty in
As an illustration of the different results arising from the difference in the language of the clauses as to alienation compare the case of Foote v. Hartford Ins. Co. 119 Mass. 259, and Bryan v. Traders' Ins. Co., ubi supra. In the former case, where the condition was that the policy should be void if any change should take place in the title or possession' of the property insured, whether by sale, transfer, or conveyance, legal process or judicial decree, it was held that a mortgage by way of an absolute deed and an unrecorded instrument of defeasance back was a violation of the condition, while in the latter case it was held that such a mortgage did not avoid the policy where the condition was that the policy should be avoided if “ the said property shall be sold.”
If, therefore, the house had been the only building named in the policy, or if the policy can be regarded as containing two separate and independent contracts, one applicable to the house alone, and one applicable to the barn alone, there was no breach of the condition of alienation so far as respects the house, and the policy was valid as to the life estate of the plaintiff therein at the time of the loss. Clark v. New England Ins. Co. 6 Cush. 342.
But it is contended by the defendant that the contract was entire, and that being void as to the barn it is void as to the house. And the counsel for the defendant argues that, in so far as the case of Clark v. New England Ins. Co., ubi supra, seems to support the doctrine that where the different articles are separately valued in a policy it is to be regarded as containing a separate, distinct, and independent contract as to each such article, as though each was insured in a separate policy, it is inconsistent with Brown v. People’s Ins. Co. 11 Cush. 280, and Thomas v. Commercial Union Assurance Co. 162 Mass. 29, and other similar cases decided here and elsewhere. We have not found it necessary, however, to consider whether or not the contract in this case is an entire contract, since we are of the
It is true that often the condition in a policy covering several buildings which is regarded as an entire contract is broken when trouble arises as to one building alone, or even a part of one. In Thomas v. Commercial Assurance Co., ubi supra, for instance, it was held that a misdescription as to one of the buildings covered by one entire contract was a misdescription of the property insured, and the policy was held void as to all the buildings. Of course the description of the whole property covered by the risk could not be correct, so long as it was incorrect as to any particular building; and the principle of this decision is of very general application in the law of insurance, whether the policy be avoided for a breach of a condition or for fraud, or other cause applicable to contracts in general. Brown v. People’s Ins. Co., ubi supra.
On the other hand, in McQueeny v. Phoenix Ins. Co. 52 Ark. 257, where the policy covered two buildings, and contained a provision that it should be void if the premises should become vacant or unoccupied, and it appeared that at the time of the fire one of the buildings only was occupied, it was held that the
These two classes of decisions are perfectly consistent with each other. The last case somewhat resembles in principle the case at bar. Since in this case there has been no breach of the condition of the policy, the plaintiff may recover the value of his life interest at the time of his loss, which by the agreement of the parties was $148.80, with interest from the date of the writ. Judgment for the plaintiff accordingly.