34 Neb. 704 | Neb. | 1892
This was an action on a policy of insurance issued by the plaintiff in error to the defendant in error on a stock
From the bill of exceptions it appears that for about three years prior to 1881 the said Louis Hyman had been engaged in the mercantile business in his own name at Mt. Yernon, Ohio. In that year he made an assignment for the benefit of creditors. From the time of his assignment until about the time they located in Seward, in 1884, both husband and wife were employed in clerking for the brother of the husband in Mt. Yernon. They testify that all the earnings of both were given to defendant in error, and it was with the money thus acquired that she commenced business in Seward. From April or March, 1884, until the store was destroyed by fire, March 24, 1889, the business was conducted in the name of the defendant in error. There is no evidence that Louis Hyman was owing any debts at the time the money aforesaid was given by him to his wife, nor is there any evidence tending to prove that he was at any time insolvent, except the fact that he made an assignment in 1881. The following special findings were returned by the jury at the trial in the district court.
“No. 1. Where did the plaintiff get the money with which she purchased the goods to start into business? Answer — Partly her own earnings, and balance given to her by her husband. L. A. Weldon, Foreman.
“No. 2. Did not plaintiff’s husband make and earn the money with which the goods to start into business were bought? Answer — Partly.
“L. A. Weldon, Foreman.
*707 “No. 3. Did not the husband of the plaintiff give her the money with which the goods to start into business at Seward were bought, and was he not at the time he gave it to her indebted to certain parties from whom he had purchased goods while in business at Mt. Yernon, Ohio? Answer — No. L. A. Weldon, Foreman.
“No. 4. Is not the plaintiff’s husband still indebted for goods that he purchased while in business in Mt. Yernon, Ohio? Answer — No. L. A. Weldon, Foreman.
“No. 5. At the time plaintiff’s husband (Louis Hyman) gave her the money with which to purchase the-goods to start into business at Seward (if he did give it to her) was he owing her anything, and if he was owing her, state how much and what for? Answer — No.
“L. A. Weldon, Foreman.
“No. 6. Did the plaintiff or her agent at any time since the fire make out an inventory or list of the damaged property, and in said inventory give the cost of each kind? If she did, state when. Answer — Yes; on the 5th day of April, 1889. L. A. Weldon, Foreman.”
There is no merit in the claim of plaintiff in error. The title of defendant in error to the property insured was complete and perfect. There is nothing in the evidence even suggestive of fraud. Had Louis Hyman been involved financially to any considerable amount at the time he gave the money or property to his wife, or if he had contracted debts about that time or subsequent thereto, there might have been some foundation for the charge of fraud. It does not follow', however, that fraud on the part of Louis Hyman would have been available as a defense in this case. It is only as against creditors and those entitled to the equities of creditors that voluntary conveyances are held to be fraudulent and void. (Wait on Fraud. Conv., sec. 197; 8 Am. & Eng. Encyc. of Law, p. 774, and note.) It is said in May on Fraudulent Conveyances, marginal page 364: “A voluntary settlement made by a person in
The cases cited by plaintiff in error do not sustain the proposition contended for. They are mostly cases in which the rights of creditors only were involved. The only exception is Baldwin v. State Insurance Co., 60 Ia., 497. In that case the party to whom the policy was issued did not claim any interest whatever in the property. Suppose plaintiff in error were a trespasser instead of an insurer and was called upon to answer for a conversion of the property. Would it be heard in defense to say that the title of the insured had been acquired in fraud of the rights of a third party? Certainly not. Nor is there any rule of law or morals which will sanction such a defense in this action. It is said that had the plaintiff in error known of the business record of Louis Hyman, that is, the fact that he had once made an assignment, it would have refused to insure the property. It is a sufficient answer to this claim that there is no rule of law which imposes upon the owner of property the duty to volunteer such information to an insurance company. An interest, to be insurable, does not depend necessarily upon the ownership of the property. It may be a special or limited interest disconnected from any title, lien, or possession. If the holder of an interest in property will suffer loss by its destruction he may indemnify himself therefrom by a contract of insurance. If, by the loss, the holder of the interest is deprived of the possession, enjoyment, or profit of the property, or a security or lien resting thereon, or other certain benefits growing out of or depending upon it, he has an insurable interest. (Merrett v. Farmers Ins. Co., 452 Ia., 11; Phillips, Ins., secs. 175, 342, 346; Flanders, Ins., p. 342.) And in Pettigrew’s Case, 28 U. C., 70, it is held that a purchaser has an insurable interest in properly, although the sale was in fraud of
Affirmed.
