38 Neb. 895 | Neb. | 1894
The New England Loan & Trust Company commenced an action in the district court of Lancaster county to foreclose two mortgages, one in the sum of $1,200, and one in the sum of $-, executed and delivered to it December 26, 1887, by James Kenneally and Eliza Kenneally, and covering the following property, situated in the county of Lancaster and state of Nebraska, to-wit: “Lot twelve (12), in block five (5), ‘Pleasant Hill’ subdivision of lots three (3), four (4), five (5), and six (6) of the northeast quarter of section thirty-six (36), township ten (10) north, of range six (6) east, of the sixth principal meridian, with all the appurtenances thereto belonging.” The petition contained the usual allegations of a petition in such actions and also a copy of the conditions of the mortgages, one of which provided that the Kenneallys should keep the buildings on said premises insured in some responsible and approved company or companies for the benefit of the mortgagee, in a sum not less than $2,000, and deliver the policies and renewal receipts to mortgagee. The petition also contained the following allegation: That Benjamin A. Gibson and Francis N. Gibson each agreed and assumed to pay this plaintiff the said mortgages made and executed by James Kenneally and wife to this plaintiff, and that said agreement was a part of the purchase price of said land from Kenneally to Gibson, and from Gibson to Gibson. There was a deed executed, as appears from the evidence, from the Kenneallys to Benjamin A. Gibson, and one from Benjamin A. Gibson to Francis N. Gibson, in each of which there was a clause whereby the grantee assumed and agreed to pay the $1,200 mortgage and the interest thereon. The prayer of the petition was for foreclosure of the mortgages and. de
“It is agreed that this insurance, as to the interests of the mortgagee, or beneficiary, or its assigns only, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupancy of the premises for purposes more hazardous than are permitted by the terms of this policy, nor by any change in title’ or possession, whether by legal process, voluntary transfer or conveyance of the premises, provided the mortgagee or beneficiary shall notify this company of-any change of*898 ownership or increase of hazard which shall come to the knowledge of such mortgagee or beneficiary, and shall have permission for such change of ownership or increase of hazard duly indorsed on the policy.”
There is a further averment that the policy was immediately forwarded by Kenneally to the plaintiff, and by plaintiff kept and retained; that defendants were not permitted to see and examine it, and were ignorant of its conditions until March, 1889. It is further alleged in the answers that the buildings on said premises, covered by the policy, were, on the 14th day of December, 1888, entirely destroyed by fire, and that due proofs- of loss were made. The answers further alleged that the plaintiff was notified immediately of the transfer and conveyance of the property by the Kenneallys to the Gibsons, and that plaintiff willfully, negligently, and carelessly omitted and refused to give notice to the Insurance Company of North America of such transfer, by reason of which negligence and failure on the part of plaintiff to so notify the insurance company, the said company refuses to pay the amount of the loss under the policy to the damage of defendants in the sum of $2,000. Defendants pray for a finding in their favor in the sum of $2,000, for a cancellation of the notes and mortgages, and a judgment against plaintiff for the balance, if any, of the $2,000, after deducting therefrom the amount of the notes and mortgages. The plaintiff filed replies to the answers, which were in effect general denials. A trial of the issues was had February 26,1892, in the lower court, and findings made by the court that there was due on the first mortgage the sum of $1,589.85; that the defendants Benjamin A. Gibson and Francis N. Gibson had assumed and agreed to pay the same, and that there was due the plaintiff upon said note and mortgage from the defendants James and Eliza Kenneally and Benjamin A. and Francis N. Gibson the sum of $1,589.85. There was a further finding that there was due plaintiff
The evidence shows: The execution and delivery of the notes and mortgages by James and Eliza Kenneally to plaintiff; the issuance of the policy of insurance to James Kenneally with mortgage clause attached, as set forth in the answers, and that the same was sent to plaintiff and retained by it until sent to defendants Benjamin A. and Francis N. Gibson at their request, during February or March, 1889; that plaintiff was notified or informed of the transfer or conveyance of the property to the Gibsons on or about July 31, 1888; that plaintiff did not notify the insurance company of the transfer of the property.to the Gibsons; that on December 14, 1888, the buildings on the premises and covered by the policy of insurance were totally destroyed by fire; that the policy of insurance was never assigned to the Gibsons or either of them; that the insurance had been obtained on the buildings by James Kenneally prior to the sale of the premises to Benjamin A. Gibson, but he had not paid the premium and same was paid by the Gibsons, but the evidence does not show to whom they paid it, or whether they paid it for Kenneally, as his indebtedness to the company, or its agent, or on their own account; that the policy contained the following condition as to change of ownership of the property insured, and assignment of the policy: “If the assured shall, by voluntary transfer or conveyance, dispose of the property covered by this policy, or of an undivided interest therein, or a change shall take place in the membership of the firm or copartnership for whose benefit the insurance
The controlling fact in this case as to the rights of the defendants Gibson in the proceeds of the policy of insurance, or its proper.enforcement, or its being kept alive and in force by the plaintiff, if any such rights could in any event be or accrue to Kenneally or to defendants as assignees of Kenneally, must clearly, it seems to me, depend upon whether or not the policy was ever assigned to the Gibsons, and it is unquestionably shown by the evidence that it never was. In this cáse the question is not left an open one, but by a condition of the policy it is made obligatory upon the party or parties receiving a conveyance or transfer of the property, to have the policy assigned and consent of the company to such assignment indorsed on the policy; if not, the insurance to cease. The general rule of law is, that a policy of fire insurance is a personal contract with the party insured and does not run with the land- or pass to the purchasers by a sale of the premises or property insured, and any assignment of the policy must be with the knowledge and consent of the insurer. (Ayres v. Hartford Fire Ins. Co., 17 Ia., 183, and cases cited; Simeral v. Dubuque Mutual Fire Ins. Co., 18 Ia., 319; Ætna Fire Ins. Co. v. Tyler, 30 Am. Dec. [N. Y.], 90; May, Insurance, sec. 6.) The defendants not having received any assignment of ttie policy, acquired no rights to the proceeds thereof, and clearly were in no position to require an enforcement of the policy at the hands of the mortgagee,! and were not damaged by his failure to give notice of the transfer to the insurance company and had no right to the-relief prayed for in their answers.
It may be claimed that as they paid the premiums, i hey thereby acquired a right to the proceeds of the policy
The appellee has asked in its petition in the lower court that the deficiency judgment be accorded it against the defendants Gibson as to both mortgages, and in its brief in this court it asks that the decree of the lower court be so modified as to give it such relief, the lower court not having allowed it as against the defendants Gibson
As the conclusion which we have reached as to the rights of the appellants fully disposes of them, the decision of the questions of what would have been their rights under the policy had they acquired any by proper assignment thereof, to have the notice of the transfer given by the mortgagee, and to recover damages if such notice was not given, is not necessary to a determination of the case as to them, and will not be discussed or decided. After thorough investigation of the record in the case, we are ■fully satisfied that the decree of the lower court was right, and it is
Affirmed.