32 W. Va. 283 | W. Va. | 1889
' The JEtna Insurance Company, a foreign corporation, in July, 1878, issued a fire insurance policy to C. M. Moore, for $2,000.00. Of this amount $1,000.00 was on the dwell
The insurance company demurred to said bill and filed its answer thereto, in which it denied that any considerable portion of the household property insured' by it was in said house at the time of the fire and destroyed thereby, or that the piano was the property of said Moore. Said answer averred, that by reason of the acts and transactions of the insured the said policy had become forfeited and void according to the provisions contained therein, and that the company was not liable to the said Moore or the plaintiff’ for any part of said insurance. The prayer is that said policy may be declared void, and all relief denied to the plaintiff’.
Depositions and other proofs were taken and filed, the demurrer to the bill overruled, and on February 25, 1888, the cause was heard, and a decree entered therein, by which it was found and decided, that the .¿Etna Insurance Company was liable on said policy for $1,700.00 with interest thereon from May 20, 1886, that being the whole amount of the insurance less the insurance on the piano; and having ascertained the aggregate 'of said amount as of the date of the decree to be $1,878.50 the court ordered the insurance company to pay said amount and the- costs of this suit to ■ the plaintiff, and referred the cause to a commissioner to report the amounts and priorities of the liens on said fund.
The first question is as to the demurrer to the bill. Our statute provides-: “ For the recovery of any estate, real or personal, on which a writ oí fieri, facias is a lien under this chapter, or on which the judgment on which such writ issues is a lien, or the-enforcemen-t of .any liability in respect to any such estate, a suit may be maintained either at law or in equity, as the case may require, in the name of the officer to whom such writ was delivered. * * * But any person interested may bring such suit .at his own costs, and in the officer’s name.” Acts 1882, c. 127, s. 15; Code 1887, c. 141, s, 15. This statute plainly authorizes a suit of this character to be instituted or prosecuted in the name of a sheriff. The only question-is whether it should be at law or in equity. The well-settled general rule, that equity has no jurisdiction,-where there is a plain .and adequate remedy at .law, does not of itself afl'ord a sufficient test of the jurisdiction ; for it is also true, that a doubtful or partial remedy at law-does'not exclude an injured party from relief in equity; and hence a/ just discrmiuation becomes frequently a subject of doubt and perplexity. The application of the principle to a particular case must depend altogether upon the character of the case as disclosed by the pleadings. It is safé to say however, that, where it is doubtful, whether or not there is-, an adequate and complete remedy at law, a court of equity will take .jurisdiction. 1 Bart. Chy. Pr. 65, 67; Spotswood v. Higgenbotham, 6 Munf. 313; Swann v. Summers, 19 W. Va. 115, Jurisdiction in equity is sustained where it will avoid a multiplicity :of suits; and it has also been .-sustained, where there was a conflict between two execution-creditors. Watson v. Sutherland, 5 Wall. 78. It seems to me, that these authorities and others, which might be cited, fully sustain the jurisdiction of a court of equity in a suit such as the one* at bar.
Here we have four execution-creditors claiming the same fund; a dispute about that fund, — Hanley, one of the garnishees, claiming that he owed'the debtor nothing, until the fund was paid to him by the insurance company, and the insurance company, the other garnishee, claiming, that it owed neither the debtor nor Hanly; and besides the fund was likely
It is contended by the-appellant, that there is no liability upon it because of the several trust-deeds executed by C. M. Moore on the land, upon which the insured property was located, and the decree orderiug the sale of said land and placing it in the possession of a reeiver. This contention is based upon that provision of the policy, which declares, that, “in case of any transfer or change of-title in the property insured by this company, or any undivided interest therein, or foreclosure of a mortgage thereon, such insurance shall be void and cease.” This objection,--is fully answered by the decision of this Court in Quarrier v. Insurance Co., 10 W. Va. 507. In that case, on page 539, the-Court says: “If the deed of trust was executed after the policy, it did not violate the provisions of the policy; for it was not a sale of the property, or any change of the title, within the true-meaning of this provision. For it has often been decided that a mortgage or deed of trust, before its foreclosure,'is no alienation or-change of title, according to the true interpretation " of these words, when used in-a policy of insurance.”:
In the ease at bar the proof is, that no sale of the insured property had been rnade'at the time of the fire,- and that Moore, the insured; was then-residing.in it with his family.
The policy provides, that it shall not be assignable without the consent of the company expressed by- an indorsement made thereon. The policy in this instance \yas not assigned,1 until after the loss had occurred, and the «liability of the company had been fixed. An assignment subsequent tó the loss is valid regardless of the conditions of the policy. Wood, Ins. § 94; Franklin v. Insarance Co., 43 Mo. 491; May on Ins. 468. This is the law, supposing the assignment of the policy by Moore tó Ilanly tobe- valid and binding; but it was not, because the-assi-gnment was not only fraudulent bul conditional, and the condition never was and' never will be performed.
It is further contended for the appellant, that there was no competent evidence of the loss of the furniture and effects or
It is further claimed, that the proof of loss was not certified by the magistrate or notary public living most contiguous to the place of loss, as provided for in the policy. As before stated, there was no objection by the company to the proof of loss or to the certificate attached thereto. In order to take advantage of a certificate of the notary public of this character, the company must seasonably object thereto specifically denominating the grounds of objection. Wood, Ins. § 417; McMasters v. Insurance Co., 25 Wend. 379. Where a certificate was furnished, but not of the nearest magistrate, and no objection was made on that ground, it was held, that the insurer was estopped from proving, that the magistrate was not the nearest. Taylor v. Insurance Co., 51 N. H. 50; Wood on Ins. § 416, p. 713, note.
Upon the whole record, I have been unable to discover any error to the prejudice of the appellant and am therefore of opinion to affirm the decree of the Circuit Court.
Aeeikmed.