107 Ga. 541 | Ga. | 1899
The following statement sufficiently sets forth all the facts material to an understanding of the rulings made in this case: In June, 1895, the Continental Insurance Company issued a policy to EL A. Cannon, insuring “his” dwelling-house against loss by fire for a term of three years. This policy, among other things, stipulated that it was to be void, “if any change, other than by the death of the insured, take place in the interest, title, or possession of the subject of the insurance (except change of occupancy without change of hazard).” Before the issuance of this policy, EL A. Cannon had conveyed the property therein described to the Southern Mutual Building and Loan Association to secure a debt due by him to it. Attached to the policy and forming a part thereof, was a clause known as the “New York Standard Mortgage Clause,” which stipulated that “loss or damage, if any, under this policy, shall be payable to” this association “as its mortgagee (or trustee) interest may appear,” and that “ the insurance, as to the mortgagee (or trustee) only therein, shall not be invalidated by . . any change in the title or ownership of the property; . . provided . . that the mortgagee (or trustee) shall notify this company of any change of ownership or occupancy . . which shall come to the knowledge of said mortgagee (or trustee); . . otherwise this policy shall be null and void. ” On May 26, 1897, the property insured was destroyed by fire, and the receivers of the building and loan association brought an action against the insurance company for the amount of the policy, and also for damages and attorney’s fees.
After one of the paragraphs of the defendant’s answer had been stricken on demurrer, the court allowed it to file an
No point was made when this amendment was allowed that it was not offered in due time. It was, however, on motion of plaintiffs’ counsel, stricken ; and the question is properly made in the record whether or not it set up a good defense to the plaintiffs’ action. The trial resulted in a verdict for the plaintiffs, and the case is here for review. As the court by striking the amendment to the defendant’s answer, which embraced the only specific defense it set up, committed an error which was: fatal to that defense and deprived the defendant thereof, all which occurred subsequently was, of course, nugatory. We accordingly limit our remarks on the law of the case to a discussion of the merits of that amendment. An examination of it-will show that the defendant distinctly made the point that because of the association’s failure to notify the company of the-change of ownership in the insured property, effectuated by the conveyance from H. A. Cannon to R. C. Cannon, it being aware of such change before the loss occurred, the plaintiffs-were precluded from recovering, either under the policy or the “ mortgage clause ” thereto attached. The court therefore erred in striking this amendment, if the deed from the one Cannon to the other as matter of law effected a material change in the-title or ownership of the property. We have no doubt that such a change did result from the execution and delivery of this deed. A security-deed has in view a single purpose, namely, the securing of a debt. Undoubtedly the maker of such a deed retains in himself a substantial interest in the property. Certainly he has the equity of redemption, and to-that extent may be regarded as having some “ownership” in the subject-matter of the conveyance. On the other hand, an absolute deed of bargain and sale leaves no interest nor any semblance of ownership in the maker. Until after the making of the deed to ■ R. C. Cannon, H. A. Cannon surely had some interest in the property. Though the legal title was in the-building and loan association, it was at last merely a qualified title, and left an interest of greater or less value in H. A. Can
Judgment reversed.