170 So. 424 | La. Ct. App. | 1936
The defendant answered, admitting the issuance of the policy, the destruction of the property by fire, and defended on the ground that the plaintiff was not the sole and unconditional owner of the property as warranted by her in the policy, with the result that there was an increase in the moral and physical hazard to the insurer rendering the policy sued on null and void.
There was judgment below in plaintiff's favor, as prayed for, and defendant has appealed. Plaintiff has answered the appeal, invoking the provisions of Act No.
Pending this appeal, the plaintiff died, and her heirs have been made parties by proper motion.
The record shows that Louis R. Galatas, the husband of plaintiff's sister, bought from the City Investment Company four lots of ground on Music street in the city of New Orleans for a consideration of *425 $900, payable in monthly installments, and spent $2,400 in the erection of a building of which amount he borrowed $950 from his sister-in-law and $1,200 from the Union Homestead. He was unable to keep up his payments to the homestead and was threatened with foreclosure. Apparently, by mutual agreement, the property was transferred to the homestead and by the homestead to plaintiff for $2,200, wholly on credit. Thereafter Miss France obtained from the Excelsior Homestead a loan of $2,700 with the proceeds of which she paid the Union Homestead. Galatas and his wife lived in the premises with plaintiff under an arrangement whereby she paid board and he paid the monthly installments to the homestead in lieu of rent.
The policy sued on was issued by the defendant company to the plaintiff on January 27, 1931, and the property was destroyed by fire on the 20th of March, 1933. Subsequent to the fire, an employee of the fire marshal's office, Mr. Fitzmorris, interrogated plaintiff concerning the origin of the fire and the ownership of the property. According to his testimony, Miss France informed him that the property belonged to Galatas, the title having been placed in her name merely as a convenience. Miss France, however, who lived long enough to testify upon the trial of the case below, denied that she had told Fitzmorris that she did not own the property and stated that what she said to him was that she did not own the furniture. Galatas testified that he had no interest in the property since 1924, when he conveyed it to the Union Homestead.
Galatas, who had insured his furniture with defendant, was paid for its loss, but the claim of Miss France was resisted. During the time that the title stood in Miss France's name certain improvements were made and paid for by her, though all of the arrangements with the contractor were made by Galatas, who appears to have transacted all business matters relative to the property, such as taking out of insurance, payment of taxes, and handling of money. On one occasion when the loan was increased from $2,200 to $2,700, about $400 was received in a check from the Excelsior Homestead. This check was indorsed by Miss France and delivered to Galatas, who cashed it at D.H. Holmes Company, a local department store, paying his personal account of about $40 and using the remainder to make repairs upon the premises.
Upon the facts which we have narrated, defendant insists that Galatas is the real owner of the property.
Counsel for plaintiff directs our attention to Act No.
We do not find it necessary to construe the provisions of the act of 1928 because, in our opinion, the defendant has failed to prove that Miss France was not the sole and unconditional owner of the property. The legal title was in her. Her title was good as against Galatas, who is not shown to have any interest whatever since his conveyance to the Union Homestead, from which corporation plaintiff acquired the property and it was good against the world. She was the sole owner because there was no other person who could claim any share of the title. Her ownership was absolute and unconditional. Whatever she said to Fitzmorris about her title could not affect her ownership.
We believe that plaintiff acquired the property for a valuable consideration and that there has been no proof of holding it as a convenience to Galatas. But let us suppose the case to be as counsel for defendant contends and not as we find it. Assuming, therefore, that no consideration flowed to Galatas from Miss France and that the property was put in her name for the purpose of avoiding the claims of his (Galatas) creditors, in our opinion Miss France would still be the sole *426 and unconditional owner of the property so far as this clause in her policy is concerned. The fact that her title would be voidable at the instance of Galatas' creditors is a matter with which the defendant would have no concern.
In Phoenix Insurance Co. v. Mitchell,
In National Union Fire Insurance Co. of Pittsburg v. Short et al.,
In 14 R.C.L., page 1053, we find the following supported by marginal citations of a number of cases: "Although the insured premises have been conveyed to the insured without consideration, and for the fraudulent purpose of placing them beyond the reach of the grantor's creditors, and the creditors of the grantor have been adjudged to have the right to avoid to the extent of selling the property so far as may be necessary to discharge their obligations, the grantee's title has been considered sole and unconditional."
The authorities cited by counsel for defendant — Adema v. Lafayette Fire Insurance Co., 36 La.Ann. 660 and Perrin v. Stuyvesant Insurance Co.,
Our conclusion is that the plaintiff should recover.
Plaintiff's claim, in his answer to the appeal, for penalties and attorney's fees is based upon section 3 of Act No.
For the reasons assigned the judgment appealed from is amended in so far as to run in favor of Louis Galatas, Jr., and George Galatas, legal heirs of Miss Marie France. In all other respects the judgment appealed from is affirmed.
Amended and affirmed.
JANVIER, J., concurs.