55 W. Va. 565 | W. Va. | 1904
By deed dated the 28th day of March, 1896, Mary A. Neall and Janies A. Neall, her husband, of Philadelphia, Pennsylvania, by J. S. Ncall, their attorney in fact, convoyed to A. C. Dunbraek certain parcels of land therein described, being in the town of Parsons in Tucker county, in consideration of $2,-500, of which $625 was paid in cash and throe notes signed by A. C. Dunbraek bearing even date with the deed for $625, payable respectively on or before the 28th days of March, 1897, 1898, and 1899, and being the deferred installments of purchase money on said property. On the same day said Dunbraek executed a deed of trust to J. S. Neall, trustee, on the same property, to secure the payment of said notes. While the deeds boar date on the 28th day of March, the transaction was not really consummated and the deeds delivered until the 29th day of June, 1896. On the -1th day of June, 1896, before the transaction had been completed in writing, Mary A. Neall insured the building on the property so conveyed in the Scottish Union and National Insurance Company for $2,000.° After the execution of said deed of conveyance and trust deed, on the 27th of July, 1896, she endorsed on said policy an assignment of the same to A. C. Dunbraek subject to the consent of the Insurance Company, and on the 7th of August following the Insurance Company, by its agent, endorsed its consent to said assignment and at the same time entered thereon the further endorsement “This policy is hercb3r transferred and assigned.to A. C. Dun-brack with loss, if any, payable to J. S. Ncall, trustee for Mary A. Neall, as his interest may appear.” On the 18th day of May, 1897, the insured building was burned. The trustee, Neall, gave notice to sell the property conveyed by said deed of trust, to be sold on the 18th day of August, 1897. On the 12th day of August, 1897, Dunbraek presented his bill of complaint
Plaintiff in his bill alleges the -assignment by Mrs. Neall to plaintiff with the knowledge and assent of said. company and his own assignment thereof to trustee Neall as security for said purchase money; that the said policy was delivered by plaintiff to the trustee rvlio was a non-resident of the State of West Virginia and a resident of Colorado, and alleged that said insurance policy was necessarily a primary security for said trust debt, and by every construction of law and equity and the understanding of parties in case of destruction of property by fire the same was to be immediately collected and paid upon said debt and to the relief of the land, and there was no good reason why such collection and application should not be made by the trustee, and that no just defense could be made by the company to making such payment; that by reason of said $3,000 insurance, plaintiff “Was stopped from taking further insurance on said building;” that said trustee, acting through his local attorney, had not collected said policy nor taken any steps to do so, nor produced the policy, nor allowed plaintiff in his behalf to take legal steps for its collection, but on the contrary had advertised said land for sale under said trust deed, and that unless this Court of equity would intervene to prevent, the property would be sold at great loss and detriment to plaintiff;
The Scottish Union and National Insurance Company filed its answer admitting that it had issued the policy to Mary A. Neall; that Mary A. Neall offered plaintiff to have said policy assigned to him if he would repay her the premium which she had paid therefor but he flatly and positively refused to do so and she did not assign said policy to him; that she then set about to devise some plan whereby she could derive some benefit and advantage from said policy which by the terms of a condition therein became void when she sold said property, accordingly she, by her agent, informed respondent through its agents that she had sold the property, taking a trust deed to secure the un
The defendants tendered a bill of review on the 28th of November, 1898, which was rejected. The commissioner filed his report dated the 7th day of March, 1898, to which report Mary A. Ñeall and J. S. Neall, trustee, filed their six several exceptions. First, “Because no report whatever, should be made In this cause;” because the insurance policy became mortgagee’s insurance after the sale, to Dunbrack and the assignment of the policy and payable to Neall, trustee, as his interest should appear, as was clearly shown by the evidence taken before the commissioner and that Dunbrack was not entitled to have the benefit thereof, but that the insurance company was entitled to be substituted to the lien of Mary A. Neall to the extent of the payment made by it to her on said policy; because by the evidence of Dunbrack himself, ho was not entitled to any benefit of said policy because he never paid for the same, never had it in possession and was not entitled to it until he had repaid the premium and not having repaid the premium at the time of the loss was not entitled to have the possession of, or receive any of the benefit thereof; because the proposed assignment of said insurance policy to Dunbrack was entirely conditional and contingent upon his repayment of the premium to Mrs. Neall, which he never did, and because the commissioner allowed no compensation whatever, to the trustee, Neall, for his services.
On the 28th day of November the cause, was brought on to be heard upon the papers, orders, decrees and report of the commissioner and the exceptions thereto, the depositions of witnesses and exception of the plaintiff to the reading of the deposition of F. C. Carroll, when all exceptions to the report were overruled and the exception to the reading and excluding of the deposition of F. C. Carroll was sustained and the commissioner’s report in all other respects confirmed, and it appearing from the report of the commissioner, Conley, that there was a balance due Mary A. Neall on account of her vendor’s lien from the plaintiff Dun-brack, the sum of $31.30 after giving Dunbrack credit as in the report set forth, which report shows that he was credited with
Was the decree of December 15, 1897, appealable? This decree failed to adjudicate the principal issue made by the allegations of the bill, viz: the liability of the Insurance Company on the policy for $2,000, the prayer of the bill being that the said company be required to pay the amount of the policy with interest thereon into court, and that the same be paid to the defendant Mary Neall upon her said trust debt. In Hill v. Als, 27 W. Va. 215, the syllabus is as follows:
"1. The provision of the statute authorizing appeals to this Court in chancery causes, wherein there is a decree ‘adjudicating the principles of the cause,’ authorizes such appeal, only where the decree appealed from adjudicates all the controversies between the parties raised by the pleadings or otherwise in the cause.” “2. Where the record in a cause shows that the pleadings present two or more controversies between the plaintiff and the different defendants, only one of -which was passed upon by the circuit court, and the others left undecided, this Court will dismiss the appeal as having been improvidently awarded.” The case of Shirey v. Musgrave, 29 W. Va. 131, is to the same effect. See also Hinchman v. Morris, 29 W. Va. 273, and m case of Kanawha Lodge v. Swann, 37 W. Va. 176, syllabus point throe, it is held, “Interlocutory decrees cannot be appealed from except in cases provided for in section 1, chapter 135, of the Code, and an order referring the cause to a commissioner in chancery to make an account is, in general not an appealable decree.” The decree of December 15, 1897, being an interlocutory decree the rejection of the bill of review tendered by defendant becomes immaterial. The exception taken by plaintiff to the deposition of F. O. Carroll as being irrelevant and improper under section 35, chapter 130, Code, was improperly sustained by the court and should have been overruled and the deposition read. The deposition was taken before the commissioner before the making of*573 his report and was concerning a matter not adjudicated in said decree of December 15, and did not come witbin the purview .of said section 35. Plaintiffs own deposition fails to support the allegations of his bill; he states that he thinks it was in July, 1897, he and Mr. Scott were talking over the matter and Scott calculated the interest and principal of the notes due Mrs. Neall to amount to $2,018, and some cents; that he went over and got Mr. Maxwell to count it up and he made it $2,022.80; that he then offered Maxwell the $2,000 policy or what interest witness had in it and counted him out the $22.80, the amount claimed by Mr. Maxwell that was due to'Mrs. Neall. On cross examination he stated that he didn’t remember of ever seeing the insurance policy, never had possession of it; that he knew nothing of Mrs. Neall assigning the same to him only what Mr. Maxwell and Mr. Koim (the agent of the company) told him; that Mr. Tveim told him that it was made over to him in his favor and witness told Mr. Maxwell what Keim said, and Maxwell said ho didn’t think it was any use unless witness hold the policy and paid for it; lliat he had not the money then to pay for it and told Maxwell he would try and raise the money and sent for it but failed, to do so; he states also that he executed the deed of trust and made the cash payment, he thinks on the same day. The date of the acknowledgment of the deed of trust is the 29th day of June, 1896. Witness F. C. Carroll testifies that ho was the adjuster of the Scottish Union & National Insurance Company employed to adjust the loss; that Dunbrack told witness that Maxwell had asked him to pay this premium but that he refused to do it as he did not feel able to carry any insurance; that he also said that if he wanted any insurance he would take it out himself, or something to that effect; that Maxwell had told him that unless he paid the premium he was to receive no benefits from the insurance, and that he told witness in the same conversation that he had nothing to do with witness, that his attorney had advised him that he could make Neall put his building back and he should look to Mr. Neall and not the Insurance Company; that he did not intimate to witness during all the conversation that he had any contract with Mrs. Neall or J. S. Neall, trustee, by which he was to have any benefit from the said insurance policy. Witness states that at two different times, after the loss occurred he was at Parsons and on both occasions visited Mr. Dunbrack and had*574 quite a long conversation with him and that during the whole of either conversation he made no claim or intimation that he had any claim against the Scottish Union & National Insurance Company, on the contrary he admitted that he did not know that the policy was in force at the time of the fire and stated to others after the fire that he had no insurance, repeatedly saying that he had nothing whatever to do with witness o.r the company that he represented.
W. B. Maxwell testified that he acted as agent for Mrs. Neall in selling the property to Dunbrack; that on or about the 28th of March, he had a verbal contract with Dunbrack to soil him the property on the terms set out in the deed, but that he failed to make the cash payment until about the 29th of June; that on the 4th of June he secured for Mrs. Neall the insurance policj'- in controversy; that some days afterwards by the direction of either Mr. or Mrs. Neal he offered Dunbrack to have the said insurance policy assigned to him if he would repay Mrs. Neall the premium paid by her; he flatly refused to pay this premium and said the matter did not affect him; that he then said to him if hé did not repay her the premium that he would have the policy so assigned as to operate for Mrs. Neall’s benefit in case of loss and he would not get any benefit from it and accordingly at his advice the policy was assigned as he told Dun-brack it would be;’that Dunbrack never at any time offered or promised to pay the premium, on the contrary he refused to do so.
Mr. Dunbrack was again put on the stand and contradicted what Mr. Maxwell said about his refusing to pay for the policy and says he went' to Mr. ICeim to have the property insured and he informed him that Mrs. Neall had the property insured and wouldn’t give two policies on the same property. “When I came back I told Mr. Maxwell about it and he told me, yes, that was right, he had, but said if I would raise him the money he would have it turned over to me. I told him then I hadn’t the money to spare but as soon as I could I would do so. He at this time promised to have it assigned over to me as so ota. as I raised him the money.” At the time the insurance policy was taken out by Mrs. Neall the contract between her and plaintiff had not been consummated and she took out the insurance purely on her own account in her own name and after the contract
The decrees of the circuit court must be reversed and this Court proceeding to make such decree as the circuit court should have rendered, will reverse the decree, dissolve the injunction and dismiss the plaintiff’s bill.
Reversed.