52 Vt. 123 | Vt. | 1879
The opinion of the court was delivered by
The contract of insurance counted upon was made October 11, 1871, by Norman Hudson with the defendant. Hudson then owned the fee of the insured premises, subject to a mortgage to one Perkins for $400 and some interest. On the 7th of. J'unp, 1872, he sold said premises to Remington, with covenants of title, and assumed expressly the Perkins mortgage. In •this deed was the following proviso, or condition: “ Provided, however, that if the said Remington shall fail to pay me, the said Hudson, fifteen hundred dollars and interest annually from this date, so soon as he shall dispose of and deed away said land, and at all events within five years from this date, then this deed is to become null and void ; I, the said Hudson, fulfilling at the same time my above assumed obligation to provide for said mortgage to said Perkins, and I, the said Hudson, to still retain my insurance against fire on said premises, for security of said sum of fifteen hundred dollars, and any other insurance proper to be had
Was this policy avoided by the conveyance of the premises from Allen and Drew to Perkins and wife, and by the several mesne conveyances to Patrick Murphy ? It is claimed by the plaintiff that in the conveyance by Hudson to Remington the fee of the premises remained in Hudson, and that he conveyed the fee to the plaintiff, and that this case should be controlled by Tittemore v. Vt. Mutual Fire Insurance Co. 20 Vt. 546. In that case the plaintiff conveyed to Yan D’Waters, and took back a re-conveyance at the same time, with the condition that if the grantor should pay the plaintiff $2,000 within three years, the deed should be void. Van D’Waters never paid anything, and never promised to pay anything ; the three years had expired and Tittemore had remained in possession all the while. In this case, Remington paid part of the consideration at the time of purchase,. took the possession of the premises, and was subject to the condition that his title would be defeated if he failed to pay a fixed sum within five years. Van D’Waters could obtain title by paying $2,000 within three years. Remington would lose title if he failed to pay $1,500 within five years. Van D’Waters had neither title, possession, nor the right of possession. Remington had actual possession and the right of possession against the world, and title, subject to defeasance. And we do not see how the relation between Hudson and Remington differs in form or legal character from the ordinary case of the conveyance of the absolute title, with mortgage back to secure a portion of the purchase-money. In this case a portion of the consideration was paid, and the defeasance was inserted in the deed of conveyance. In the ordinary case of conveyance and mortgage, the defeasance is inserted in the latter, but both instruments are construed together as one and the same contract, and effectuate the conveyance of a defeasible title to the purchaser. In the Tittemore case Van D’Waters was bound to comply with a condition precedent before he obtained title ; in this case Remington
The plaintiff’s counsel concede in their brief that Remington became the owner of the equity of redemption in the premises, and was the owner of an insurable interest. It is certain that
The equity of redemption would seem, from the deeds, to be a valuable property, and a property insured by this policy ; and the deed from Hudson to Remington conveyed, by its own operation, the title in fee subject to defeasance, if the residue of the purchase-money was not paid within five years; and though the condition, or proviso, was inserted in the deed of conveyance, it vested in Hudson, the grantor, the same right and interest in the
We need not discuss whether the case would be in anywise different if the plaintiff, holding the assignment for collateral security for a debt, had guaranteed the payment of the future premiums, and thereby became by new and independent contract a member, or quasi member, of the defendant company. No such fact is in this case. The plaintiff had a debt secured by mortgage — a chattel interest, and this policy, assigned to him as further and collateral security ; he was under no duty or contract to perform all those duties necessary to be performed to keep the insurance in life and continuing force. The plaintiff had no right of possession or control of the premises. If the contract becomes void by act of the insured, it must be held void as to all persons incidentally or collaterally interested in the policy. If otherwise, then Remington or Allen and Drew might have converted this dwelling-house into a match factory, or powder-house, or even
As we have seen that the insurance was of the house and premises of which the mortgagor and his grantees were the general owners, the alienation of such title avoided this policy. The title of Allen and Drew, by several mesne conveyances was vested in Patrick Murphy, subject to a mortgage to Robert Moulthrop of $1500, which said Murphy assumed. Murphy then took out a policy in another company for $3000 on the same property ; and it is said in argument (we have no copy of the policy) that it is expressed in the policy to be for the benefit of this plaintiff to the extent of his mortgage. There is no reason suggested or apparent why this is not a valid subsisting policy. It is quite apparent that Murphy supposed that his new policy was the only insurance on the premises. Although the policy assigned to the plaintiff lapsed when Allen and Drew conveyed away the title, and was never assigned to Murphy, yet, Murphy, for greater caution, had the old policy cancelled with the defendant, and then procured one in another company for twice the amount and for like protection of the plaintiff’s mortgage, which he had assumed. Such new policy must have been intended by the parties as an enlarged insurance in substitution for the old policy, which had then come to an end ; and being a valid insurance, that act would have avoided the policy in suit, if it had riot ceased to be a binding contract long before.
There are some matters of a technical character that suggest themselves, which we need not discuss. When insured premises are conveyed, and policy assigned to the grantee .and confirmed by the insurer, and the grantee assumes the payment of the premiums, it is a new contract, and the right of action is in the assignee. But when the policy states that, in case of loss, it is for
Judgment reversed, and cause remanded.