52 Ga. App. 112 | Ga. Ct. App. | 1935
1. An alienation of the property insured, without the consent of the insurer, voids the policy. Code of 1910, § 2484; Code of 1933, § 56-825. Where a policy of fire insurance contains what is known as the sole and unconditional ownership clause and prohibits a sale, change, or transfer of the title, interest, or ownership of the insured property without the written consent of the insurer endorsed thereon, and provides that upon a breach thereof the policy shall be void, such condition is violated by sale of the personal property insured. National Ben Franklin Fire Ins. Co. v. Hurley, 49 Ga. App. 815 (176 S. E. 780); Athens Mutual Ins. Co. v. Evans, 132 Ga. 703 (64 S. E. 993). Where such a condition is breached (unless there is some valid reason taking the case out of the general rule), the insured can not recover in, case the property is thereafter destroyed by fire, and an action by such insured should be dismissed on general demurrer. Aronoff v. U. S. Fire Ins. Co., 178 Ga. 97 (172 S. E. 59).
2. “In order to transfer the legal title to a policy of fire insurance from the person to whom the policy was issued to another, the assignment thereof must be in writing, and one other than the one to whom it was issued can not, in his own name, maintain an action thereon, unless the policy has been duly assigned to him in writing.” National Fire Ins. Co. v. Grace, 106 Ga. 264 (32 S. E. 100); Steele v. Gatlin, 115 Ga. 929 (42 S. E. 253, 59 L. R. A. 129); Sprouse v. Skinner, 155 Ga. 119 (116 S. E. 606); Fields v. Continental Ins. Co., 170 Ga. 28 (152 S. E. 60); Code of 1910, § 2470, Code of 1933, § 56-801.
4. Still, where the policy provided that there could be no waiver of such condition as to sole and unconditional ownership by an agent of the insurer “unless such waiver shall be written upon or attached” to the policy, “nor shall any privilege or permission affecting the insurance under this policy exist, or be claimed by the insured, unless so written or attached;” and where the insurer was notified of the sale of the property insured, and its agent promised to procure the necessary assignment or transfer of the policy to the purchaser, providing therein for protection to the seller, in the event of loss, for the balance due her on the purchase-money, and later such agent informed the purchaser and the insured that this endorsement had been obtained and the policy transferred, and pursuant thereto the purchaser paid to such agent the premium due on the policy, which was accepted by him for the insurer, there was a waiver of the forfeiture of the policy, or, rather, the insurer was estopped from insisting on the forfeiture provision in a suit by the original insured for the use of the purchaser. Corporation of Royal Exchange Assurance v. Franklin, 158 Ga. 644 (124 S. E. 172, 38 A. L. R. 626), et seq.; Farmers Mutual &c. Ins. Co. v. Kilgore, 39 Ga. App. 528 (147 S. E. 725). While it is not specifically alleged that such agent had possession of the policy for the purpose of having the endorsement entered, the natural presumption is that such was the fact, it being alleged that upon request the agent promised to obtain this endorsement, and thereafter, upon inquiry, stated that he had procured the endorsement
5. It follows that the trial court did not err in refusing to dismiss the petition, as amended, on defendant’s motion to strike in the nature of a general demurrer.
Judgment affirmed.