57 Ga. App. 739 | Ga. Ct. App. | 1938
Lead Opinion
A. W. Sawyer brought this action on a contract of insurance issued to him by the Norwich Union Fire Insurance Society Limited on a certain house alleged to have been destroyed by fire. The policy was issued August 26, 1936, and the house was destroyed December 17, 1936. To his petition the plaintiff attached a copy of the policy, which, among other stipulations and agreements, contained the following: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto shall be void, — if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.” The question presented is whether the interest of the insured in the property is, under the allegations of the petition, that of sole and unconditional ownership in fee simple. The allegations of the petition as amended which are pertinent in this connection are substantially, that in 1925 plaintiff’s father became the owner of a described tract of land containing 37% acres; that the plaintiff’s father and his (father’s) family occupied the house on this tract as a family residence; that plaintiff had two brothers and four sisters; that in 1929 plaintiff’s father “told his children that it was his idea to give each of them a lot carved out of the tract which he had bought . . , and to build a house for each
The question above stated should be answered in the negative. “An absolute ownership is said to exist when the interest is so completely vested in the insured that he can not be deprived of it without his own consent.” 3 Cooley’s Briefs on Insurance, 2142 (c). In this State a mere equitable interest in the property is not sufficient to answer the condition of the policy above quoted. Liverpool &c. Ins. Co. v. Hughes, 145 Ga. 716 (89 S. E. 817); Springfield Fire & Marine Ins. Co. v. Chero-Cola Bottling Co., 22 Ga. App. 503 (96 S. E. 332); Peoples Credit Clothing Co. v. Old Colony Ins. Co., 47 Ga. App. 819 (171 S. E. 587). The earlier case of Southern Insurance & Trust Co. v. Lewis, 42 Ga. 587, is not contrary to the ruling made in 145 Ga., and the cases therein cited. In the Southern Ins. & Trust Co. case the policy did not contain a condition providing that “if the interest of the insured was other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in
It is true that a parol gift of land based on a meritorious consideration, accompanied with possession, and the erection of valuable improvements thereon upon the faith of the gift, will not vest legal title in the donee (Doe v. Newton, 171 Ga. 418, 156 S. E. 25; Thaggard v. Crawford, 112 Ga. 326, 37 S. E. 367); yet, as pointed out above, to fulfill the requirements of the policy, the plaintiff (donee, insured), need only establish a perfect equity in the property. The defendant takes the position that a specific performance is necessary in order for the plaintiff to meet the conditions of the policy as to interest in the property insured and the ground upon which this house rested. To sustain this proposition the cases of Howell v. Ellsberry, 79 Ga. 475 (supra), and Bell v. Mention, 152 Ga. 625 (110 S. E. 883), are cited. Those cases held that legal title in the ejector was necessary to sustain an action in ejectment. (This rule does not apply when the donee is in possession, under a perfect equity, and is being sued in ejectment. Ogden case, supra.) To vest legal title in the ejector claiming under a parol gift, specific performance is necessary either before or contemporaneously with the action of ejectment. These eases are therefore not authority for the position taken. In the case at bar, the plaintiff needed only a perfect equity to maintain an action on the policy, and if this be true, it follows that no decree of specific performance was necessary. It only remains to be decided whether, under the allegations of the present petition, the plaintiff would be entitled to a decree of specific performance, in a suit brought for that purpose against his father, the donor, so as to prevent an ejectment under such an action brought by his father. In Poullain v. Poullain, 76 Ga. 420, 442 (4 S. E. 92), a case in which this question was involved, the court approved the following charge of the -court: “If the minds of the jury are satisfied, beyond a reasonable doubt, by clear, satisfactory and unequivocal evidence that a gift . . was made by the father to the son, that the son took possession of the property given and improved it as his own, then, although the improvements made or caused to be made by him were slight and of small value, provided they were substantial and permanent in their nature, beneficial to the free
There is no question in the present case but that substantial and valuable improvements have been made upon the lot given to the plaintiff by his father; but the question is, does it appear that the improvements were made by the donee within the meaning of the rule above set out? The allegations of the petition in this connection are to the effect that the father, prior to the gift of the lot to the plaintiff, had given several other of his children lots upon which he had erected for each' of them a house; that instead of erecting a house for the plaintiff he placed a sum of money at his disposal to be used for this purpose, and that with this money and additional funds of his (plaintiff’s) own, the plaintiff erected a house which was insured by the defendant. In so far as the petition sets up that the plaintiff erected the house with money given to him by his father, the donor, for that purpose, we think it insufficient to meet the requirements of the rule. The reason underlying the rule, authorizing a specific performance against the donor where the donee has made valuable and permanent improvements, is that the plaintiff donee has laid out or expended something, which would render a revocation of the gift unjust, inequitable, and a fraud upon the donee. It can not be said that a donee who has expended money of the donor for the erection of valuable improvements, which were given to him for that purpose, stands in this position. The petition, however, further alleges that the plaintiff (insured) expended some of his own funds in the erection of the house. In this connection it is not alleged that the amount so expended was a substantial amount as would render the revocation of the gift unjust, inequitable, and a fraud as against the
Judgment reversed.
Rehearing
ON MOTION ROE REHEARING.
On motion for rehearing the plaintiff in error takes issue with the ruling of the court that where a donor (father) orally gives to a donee (son) a tract of land, and gives to him a sum of money for the expressed purpose of erecting a permanent and substantial improvement thereon, to wit, a house, and where it is alleged that the donee used the funds so given him “together with other funds, also his' own,” that in order for the donee in such case to have a perfect equity his contribution exclusive of that given him by the donor must be a substantial amount such as would render a revocation unjust, inequitable, and a fraud upon the donee. The three eases principally relied upon as being contrary to this ruling are Hughes v. Hughes, 72 Ga. 173, Poullain v. Poullain, 76 Ga. 420 (supra), and Porter v. Allen, 54 Ga. 623. Those eases announced the doctrine that “though a specific performance will not be decreed on a mere voluntary agreement or gratuitous promise, yet if possession be given under such agreement or gift, upon a meritorious consideration, such as blood or close relationship by affinity, and valuable improvements be made
Rehearmg denied.