61 W. Va. 169 | W. Va. | 1906
Lena Kantorowitz borrowed from the Baltimore Building & Loan Association upon four shares of stock the sum of $400.00, and together with Harry-Kantorowitz, her husband, conveyed to C. O. Strieby, trustee,. lot No. 108 in the town of Thomas in Tucker county, to secure the payment of said sum of money according to the terms of such loan. Said loan and deed of trust were made and executed on the 18th
The defendant Insurance Company filed its demurrer which was overruled and tendered its answer to which the plaintiff replied generally. Defendant filed with its answer a copy of the policy issued by it dated the 31st of August, 1901, upon the property in question in. the name of Lena Kantorowitz for $400.00, which policy contained the following provision:
Depositions were taken and filed in the cause by the plaintiff and the defendant.' Plaintiff with his depositions filed two letters from Bird M. Robinson, co-receiver of the Baltimore Building & Loan Association, to himself concerning the loss. The first letter dated March 18, 1902, informing plaintiff that the debt of Lena Kantorowitz to the association amounted then to $384.46, that the receivers had insurance on the property, but that the Insurance Company claimed that
The case was heard on the 16th of June, 1905, when the court held that the Building & Loan Association through its receivers by the letter of April 7, 1902, proposed and offered to accept from the plaintiff $100.00 in settlement for and in satisfaction of its claim and deed of trust lien on the lot in question, and that before he had an opportunity to accept or reject said offer the said association undertook to assign its
The principal question in the case is, whether the plaintiff, C. 1). Gillespie, had any interest in the insurance. The
-Counsel for appellee cite in support of the decrees 27 A. & E. E. L. 263, the text of which is: “It has been held repeatedly that where a mortgagee, at his own expense, pro-1
In the case at bar the insurance policy does contain an express stipulation that the insurer shall be subrogated and it is conceded, at least not questioned, that the policy was forfeited as to the mortgagor, not only by reason of the change of title without notice, but also by reasoii of the fact that the mortgagor failed to fulfill any of the requirements of the policy after the fire. It is true some of the cases cited under the. quotation made from 27 A. & E. E. L. 263, would seem to. have a tendency to support the contention of the appellee,, but in such cases it is not clear as to the stipulations in the-policy or whether the same had become forfeited as to the-, mortgagor and remained good as to the mortgagee. The. great weight of authority is in support of the stipulations in, the policy, that while it may be forfeited as to the mortgagor’ it will be good as to the mortgagee. The policy was clearly void as to both Lena Kantorowitz and O. D. Gillespie. It is very clear that the plaintiff never paid any premiums directly and it does not appear from the record that they were even charged up to him as against the property.
As to the provision in the decree enforcing the proposition made by the Insurance company through the receivers of the. Building & Loan Association, the proposition made as a compromise was received by the plaintiff, according to his own testimony, about the 7th of April and he failed to avail himself of it by accepting it within a reasonable time, as it appears that the assignment was not made until the 12th of May,, more than a month afterwards, and he does not pretend that, he even wrote a letter in reply, and the parties making the. proposition had a right to. withdraw the proposition at any '
For the reasons herein given the decrees complained of ■will be reversed and the plaintiff’s bill dismissed.
Reversed. Bill Dismissed.