104 Tenn. 93 | Tenn. | 1900
This suit grows out of the issuance by the complainant to the defendant of a policy of insurance, which undertook for a round sum or entire premium, to indemnify the defendant against loss by fire, first, ' of her dwelling house, valued at $500, and, second, of its contents, consisting of household and kitchen furniture, valued at $400. While the policy was in force, a fire occurred destroying the building and all it contained. In due time the assured made out hex-proofs of loss, and having made affidavit to their correctness, submitted them to the complainant and demanded payment, which was refused, upon the ground that the defendant was seeking to perpetrate a fraud upon the insurer, by claiming for a xnuch larger amount of personal property than was destroyed.
Meeting with this refusal, the assured instituted a common law action to recover on the policy the value of the loss which she alleged had been sustained by her. Thereupon the complainant filed this bill charging fraud on the part of the assured and asking that the Chancery Court call in and cancel the policy. The defendant answered the bill, denying all fraud, and with her answer filed a cross bill setting up her policy, averring
The policy upon which, in the face of her admission of a purpose to defraud the insurer, the cross complainant seeks to recover in a court of ¡conscience, contains the following unambiguous clause: “This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof, whether before - or after the loss.”
The cross complainant through counsel concedes that under this condition her effort at fraud, accompanied by false swearing with regard to the. personal property, precludes a recovery for its. loss, but insists that as she dealt honestly with the company so far as the building was concerned,, she is entitled to a decree for its value. This; contention is made upon the theory that the policy
But it does not follow that because such a policy is severable, that it is to be taken as if separate and distinct policies, covering each a separate piece of property, were issued at the same time. While it is an apportionable contract, yet that it is not two distinct and separate contracts is certain not only from the fact that the premium paid is entire, but also from this consideration, that separate suits could not be maintained where all the property insured had been destroyed by one and the same fire. In such an event a recovery for the loss of one of the subjects of insurance there can be no doubt would bar a recovery in an independent suit for the loss of another subject of the same insurance, upon the principle that a plaintiff cannot split a single cause of action . into parts. Hartford Fire Insurance Co. v. Davenport, 37 Mich., 609.
But beyond this, to permit the cross complainant, coming as she .does with a confession of fraud and false swearing, to recover, would be in disregard of that fundamental maxim of equity, that “he that doeth inequity shall not have equity.” It is true that this maxim has its proper limitation. It does not extend to any misconduct, however gross,, which is unconnected with the matter of litigation, and with which the opposite party has
It is proper to say that the cases of Hobbs, etc., v. Insurance Co., 1 Sneed, 444, and Insurance Co. v. Scales, 101 Tenn., 629, give no support to the present contention of the cross complainant.
It follows that the decree of the Court of Chancery Appeals, dismissing the cross bill and maldiig perpetual the injunction as prayed for in the original bill, is affirmed.