Dornblaser v. Sugar Valley Mutual Fire Insurance

20 Pa. Super. 536 | Pa. Super. Ct. | 1902

Opinion by

Rice, P. J.,

This case as presented to us by the appellant’s counsel, turns upon the construction of a policy of fire insurance issued to Peter Dornblaser, wherein it was recited that the insured “ obligated himself, his heirs, executors and administrators to pay all such” assessments as might be made by the board of directors, and whereby the defendant promised and agreed “ to make good unto the said insured, his heirs, executors, administrators and assigns all such loss or damage, not exceeding the sum insured,” as should happen by fire to the property insured between the date of the policy and the date when the policy should be annulled, and which provided that “ if the title to the hereby insured property be sold, transferred or changed, or if said property be levied upon or taken into possession or custody under any legal proceeding, this policy shall forthwith cease and become void.”

Peter Dornblaser died in 1897, having made a will whereby he devised one fifth of all his property to his daughter Puella, this appellant, one fifth to each of his three other children and one fifth to the children of a deceased daughter.

Subsequently upon proceedings in partition in the orphans’ court, the whole real estate of the testator, including the insured buildings, was allotted to the appellant, upon her bid, who, pursuant to the decree of the court, duly entered into recognizance to pay the other parties in interest their proportionate shares. This was followed by a distribution made by an auditor of the money secured by the recognizance and also of the personal estate in the hands of the executors, which was duly confirmed. These proceedings, are fully recited in the opinion filed by the learned president judge of the court below, and, therefore, need not be recited at greater length by us. He was clearly right in holding that when she entered into this recognizance, the full legal title to the real estate upon which the insured building was situated became vested in her: Robisson v. Miller, 158 Pa. 177.

It is unnecessary to discuss the question whether the change of title caused by the death and will of Peter Dornblaser was such as was contemplated by the condition of the policy above quoted. For present purposes it may be conceded that it was not, but it must also be conceded that, if his rights under the policy passed to his devisees, they took subject to the same conditions which bound him. Viewing tire case in the most favorable light for them which is possible, they were as fully subject to all the terms and conditions of the policy as if it had been issued to them after Peter Dornblaser’s death. This gives full effect to any implication winch arises from the fact that the policy runs to the insured, “ his heirs, executors, administrators and assigns.” Notwithstanding this feature of the contract and the fact that it was called a perpetual policy, it is too plain for argument, that, as the appellee’s counsel well says, it was not so fastened upon or related to the title of the property insured as to make it run with the title through all alienations or changes thereof. To hold that it would, would be to nullify the condition above quoted, as well as the provision that “ the interest of the insured in the policy is not assignable unless by consent of the company, in writing, and indorsed on the policy,” and the by-law of the company, which was expressly made a part of the policy, and which provides: “ The sale of property insured by this company cancels the policy, and the purchaser must make application anew, if he desires insurance.” The question then arises whether the completed proceedings in partition whereby Puella Dornblaser, the appellant, became owner of the entire title, instead of the undivided one fifth devised to her by the insured, worked such a change of the title as to render the policy void. The case of Finley v. Lycoming County Mutual Ins. Co., 30 Pa. 311, is directly in point. It was there held that a condition in a policy of fire insurance issued to a firm, that alienation of the insured property, by sale or otherwise, shall avoid the policy, applies to a transfer by one of the partners, on his withdrawal from the firm, to the remaining partner. The language of Mr. Justice Thompson, who delivered the opinion of the court, may be pertinently quoted as an answer to some portions of the argument of appellant’s counsel in this case. He said: “It is said by the defendants in error, that this was not a case to which these conditions attached ; that the property insured was partnership property; that it remained in original hands ; and that the transfer of Finley was but a release of his interest to Stanley. This is neither a sound legal nor practical view of the question. The stipulation regards alienation by ‘ sale or otherwise.’ If what took place between Finley and Stanley passed the interest in the property of the former to the latter, then it was within the terms of the condition, it was alienation by sale. But if not, it was alienation ‘otherwise.’ It was against alienation the prohibition was leveled, and the mere use of terms will not defeat the intent. That a sale by one partner to another is within the prohibition cannot be doubted ; there is no exception in its favor in the instrument, and the terms used gave no room to imply any. By the transaction the one parted with all his interest, and the other acquired double what he previously possessed. This is a legitimate consequence of sale and purchase, and no substitution of terms will make it anything else.” In Buckley v. Garrett, 47 Pa. 204, Mr. Justice Agnew said: “Since the case of Finley v. Lycoming County Mutual Ins. Co., 30 Pa. 311, it is not to be doubted that a transfer of a tenant in common to his cotenant, or from one partner to another, is within the prohibition of a policy which declares that alienation by sale or otherwise shall forfeit the policy.” In Girard Fire and Marine Ins. Co. v. Hebard, 95 Pa. 45, a clause in a policy which provided that “ if the property be sold, or transferred or any change takes place in the title or possession . ... by voluntary transfer or conveyance,” applied where one of the partners to whom the policy issued sold his interest in the firm to the other members. No later Pennsylvania decision has been called to our attention which modifies these rulings. The language of the contract in question is very plain and comprehensive. By its unambiguous terms the condition applies whether the title be “ sold,” or be “ transferred,” or be “ changed.” We do not see how the conclusion can be avoided that the title was changed. As the change of title and ownership was complete and perfect before the loss, and as it is not pretended that the company assented thereto, or even knew of it, the policy forthwith ceased and became void.

The judgment is affirmed.