68 Tex. 144 | Tex. | 1887
H. O. Gordon brought this suit for the use of Theodore Keller against the appellant, to recover seven hundred dollars for the loss by fire of a store house insured by the latter; the policy having been assigned by Gordon to Keller after the fire occurred.
It seems that the policy was issued August 3, 1884, and contained among others the following provisions: “If the property be sold or transferred, or-any change take place in the title or possession (except by succession by reason of the death of the assured), whether by legal process or judicial decree or voluntary transfer or conveyance, this policy shall be void.” * * * “If the interest of the assured in the property be any- other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured; or, if the building insured stands on leased ground, it must be so represented to the company and so expressed in the written part of the policy, otherwise the policy shall be void.”
About three days previous to the issuance of the policy, viz., on July 31, 1884, Gordon had made to Keller a deed for the property insured, which deed was acknowledged and recorded on August 6, 1884, subsequent to the date of the policy. This deed was made for the purpose of enabling Gordon to obtain a loan of money for Keller from the Houston Homestead and Loan Association. Gordon could not do this directly because he was not a shareholder in .the company. Keller was; and the company, with knowledge of the purpose for which the deed was made, were willing to loan the money; but upon examination Gordon’s title was found to be defective, and so the loan failed. Gordon, however, thought he might remedy the defects in his title, and for that reason let the deed to Keller stand, so that, if he should, succeed, the loan could be effected. The defects,
Keller seems to have had no recollection as to having possession of the deed until he went with Gordon to the Homestead Association to procure the loan. When the policy was offered in evidence it was objected to, because it had been fully assigned so as to place the legal title in Keller, and was not evidence of any right in Gordon to bring this suit or to recover the insurance money. This objection was overruled by the court. Judgment was rendered for the plaintiff.
Upon the state of case made by the evidence the defendant claims that the policy was avoided, whether the deed to Keller was made before or after the execution of the policy. It is very true that, if the deed conveyed any interest or ownership in the land, or burdened the title of Gordon with conditions within the meaning of the policy, it would be in violation of one or the •other of the clauses of the policy which we have recited, and be violative of its provisions, no matter which of the two instruments was first in taking effect"
The main argument of the appellant to support its position that the deed did have this effect rests upon the assumption that it was in the nature of a mortgage to secure an indebtedness of Gordon to Keller. The evidence of Keller is to the contrary. He shows nothing but a mere hope or supposition that Gordon would pay him some of the money borrowed from the association. It will certainly not be necessary to produce argument or authority to prove that this was not a binding obligation, and created no lein upon the property. It is true that there was testimony tending to show that there was an undefined agreement between Gordon and Keller as to the latter’s having some sort of claim upon the borrowed money; but it was too indefinite to create a lien.
The rule is directly to the contrary. The language of the policy being the language of the insurers, is to be construed most strongly against them, so as to give to the assured the-indemnity for which he has bargained. When the policy required entire and sole ownership, it must have meant an ownership in which no one else shared, and against which no one else could claim an interest. When it required that ownership to be unconditional, it must have meant an ownership which depended upon the performance of no condition whatever. When it required that this should be for the use and benefit of the-assured, it must have meant that the full equitable title should exist in the assured. When it required that the property should ■not be sold or transferred or any change take place in the title or possession by conveyance, it certainly did not mean that a conveyance which did not transfer the title or work any change in it whatever, should defeat the policy. Gordon’s title after the deed was made was substantially, if not literally, such a one as was required by the policy.
If his ownership after its execution was not as great as before, then the deed must have conveyed to the grantee some interest
“ The object of providing against a transfer or change of title is to guard agninst a diminution in the strength of the motive which the insured may have to be vigilant in the care of his property.” (May on Ins., sec. 273.) That vigilance in the care of the property is not likely to be diminished when the assured is the only one who can possibly suffer by its destruction. “If there is no change in the fact of title, but only in the evidence •of it, and if this latter is merely nominal and not of a nature •calculated to increase the motive to burn, .or diminish the motive to guard the property from loss by fire, the policy is not violated.” (Ayers v. H. Ins. Co., 17 Iowa, 185.)
There is a vast difference between having a deed and having title to land. The former is evidence of the latter, but may exist without it; and here, whilst Keller had a deed to the property, the title remained in Gordon for all purposes, and especially for every purpose connected with its insurance against fire. Numerous authorities could be cited to sustain these positions, but it will not be necessary, as it is believed that none can be found to hold that such a conveyance changes the title. Those cases which hold that a deed not intended to convey title does pass any interest out of the grantor, in violation of a policy such as the present, are either cases where the deed was intended as a gift, a mortgage, or some similar instrument; and even as to some of these there is a conflict of decision. (Insurance Company v. Ricker, 10 Michigan, 279; Savage v. Insurance Company, 52 New York, 502; Shepherd v. Insurance Company, 38 New Hampshire, 232.)
We think the entire interest in the property and its full ownership, as contemplated by the policy, remained in Gordon after delivery of the deed, and that it was not in violation of any of the provisions of the policy, and there was no error in th'e judgment in so declaring.
For was there error in overruling defendant’s objections to the admission of the policy in evidence. The proof showed that it was transferred to Keller as collateral security for á debt due him from Gordon, and that the plaintiff thereupon had an interest in its proceeds. Whilst the suit might have been brought by
There is no error in the judgment, and it is affirmed.
Affirmed.