17 La. 365 | La. | 1841
delivered the opinion of the court.
The plaintiff seeks to recover $2,300 on a policy of insux-ance, in the usual form against loss and damage by fire. On the 19th of May, 1836, he caused insurance to be effected on a house and kitchen for the space of one year; within that time, the buildings were totally destroyed by fire, but before this loss occurred, the insured had made a donation inter vivos of the property to one Eugenie Adelaide Gomez, and had transferred to her all his title and interest in and to the same in the most unqualified terms; the only restriction imposed on the donee’s absolute right of ownership was that she could not alienate or dispose of the property, except by last will and testament. The question is whether at the time of the loss there remained in the donor such an interest in the property insu'red as should entitle him to recover.
It is said that this donation is void for want of the appraisement required by article 1525 of the Louisiana Oode; and we have been referred to the case of Williams & al. v. Horton's curator, in 4 Martin, N. S. 464. Admitting that a party can be permitted to impugn his own deed in order to recover [368] rights which he might have'lost by executing the same, the ground assumed is untenable. Tlxe decision alluded to relates to a donation of slaves
It is next contended that as this donation is liable to be revoked or dissolved on account of ingratitude on the part of the donee or the birth of children to the donor, there was a contingent right or interest in the property subsisting in plaintiff at the time of the loss. If this be true, it is difficult to imagine a case in which a vendor of insured property destroyed by fire could not with as much reason set up a similar claim; he might always be said to have a contingent interést in the property sold, because a sale is liable to be cancelled for lesion, fraud, error, non-payment of the price, &c. And so may every contract be annulled for some cause known to the law, if such cause of nullity should be shown to exist. A vendor’s interest would not be more remote or unsubstantial than that now supposed to have existed iu plaintiff; La. Code, arts. 1546, 1547,1548, 1556. The bare possibility that a right to property might hereafter arise cannot be considered as an insurable interest; there must surely be something at risk in which the insured'is actually interested and for which in case of loss he can claim indemnity. ' The general rule is that in order to have an insurable interest in any subject, a person must be-liable to a direct and immediate loss by its damage or destruction. 1 Philips-on Ins., p. 68, ed. of 1840. The loss of the property in this case fell on thedonee who had become the absolute owner of it by a title translative of property; and had the policy been assigned to her with the consent of the underwriters, she was clearly entitled to recover. It could not have been objected to her that her title was defeasible by the happening of those contingencies upon which plaintiff attempts to show an interest in himself. Had any [369] of the causes occurred which in law would give rise to plaintiff’s right of revocation or to a legal reversion of the property to him, his interest in the same might perhaps be said to have revived, but when none of these causes existed at the time of the loss, when it is not even .made probable that they ever will exist, how can the plaintiff be supposed to have- suffered a loss for which he must be indemnified ? Having parted with all his interest in the property before its destruction, plaintiff cannot recover. Massachusetts Hep. 515.
In order to establish an actual and subsisting interest in himself at the time of the loss, the plaintiff has offered testimony to prove that previous to and at the time of this donation, there was an understanding and agreement between the donee and Mm that notwithstanding the donation he was to continue to receive and enjoy the rents of the house during Ms lifetime, and that pursuant to such agreement he did receive the rents and pay all repairs, taxes, &c. up to the time of the fire. The introduction of this testimony was resisted as inadmissible under the article 2256 of the Louisiana Code; it appears to us that it should not have been received; it goes to show between the-parties a donation causa mortis instead of one inter vivos as evidenced by the-deed. But even were this agreement legally proved, we do not think it could: avail the plaintiff under the evidence in the record before us.
It is therefore ordered that the judgment of the district court be affirmed, with costs.