Warner v. Middlesex Mutual Assurance Co.

| Conn. | Jun 15, 1852

Hinman, J.

Several questions are raised upon this motion, which we think it unnecessary to decide, as there is an objection to the plaintiff’s recovery, which must, we think, be fatal to bis case, in any aspect in which it can be presented to a court of law.

The 13th section of the defendant’s charter provides, that no insurance effected on any property, shall be good and valid to the insured, unless he has a good and perfect unincumbered title thereto, at the time of effecting such insurance; or unless the true title of the insured to the same, and the incumbrances, if any, be fully disclosed and expressed in the proposals for insurance, and be also specified in the policy. The plaintiff had knowledge of this provision of the charter. His policy refers to the charter, as annexed, and made a part of the contract; and in the proposals, made for the purpose of effecting his insurance, he also refers to the charter, and asks for a policy, according to its provisions. Besides, the company is one of those mutual insurance companies, in which the insured become members of the corporation, and, with their associates, are insurers of their own property. As a member of such a corporation, therefore, an insurer, as well as the insured, he must be deemed to have had knowledge of the charter, which alone authorized the association.

Had then the plaintiff such a title to the property insured, as is contemplated in the section referred to? We think it very clear, that he had not; and as it is not claimed, that he made any disclosure of the true state of his title, he must fail in this action. It is admitted, that before the plaintiff acquired any title to the property, the former owner mortgaged it to E. Brandigee, and that that mortgage had not been released, when this insurance was effected. It also appeared, that, if the mortgage debt to Brandigee was ever paid, it was not until after the law day had expired. Now, admitting that the mortgage debt had been paid, after the law day, still, Brandigee had, according to our decisions, a title which he could set up as a defence to an action of ejectment. Smith v. Vincent, 16 Conn. R. 1. As this title was outstanding in Brandigee, it is obvious, that the plaintiff could not have a perfect title, at the same time; for a perfect title cannot mean a title which is liable to be defeated, by any outstanding title in another.

But it is said, that Brandigee would be estopped from setting up his satisfied mortgage title, in consequence of his declaration to the plaintiff, before he levied his execution, that he claimed no interest in the premises. If it was in consequence of such a declaration by Brandigee, that the plaintiff was induced to levy his execution, no doubt Brandigee would be estopped from making any subsequent claim to the property, as against the plaintiff, or any one claiming under him. Still, the question is not, whether the plaintiff had a good title in equity to the property, but whether he had a perfect title. Now, a perfect title can mean nothing less than a title which is good, both at law and in equity; and such a title ought not to rest upon a parol estoppel. Our statute concerning lands requires all conveyances to be in writing; and we do not think a perfect title, derived from another, and not adversely, can be acquired, unless it is by writing, or matter of record. It is certain, that Brandigee once had such an incumbrance upon this property, as prevented any other person from having a perfect title to it. This incumbrance has never been removed, in any other way, than by paying his mortgage debt, after the expiration of the law day. It was claimed, that after this, he made a declaration, that he claimed no interest in the land. True, this would estop him from afterwards claiming any interest n it, if the plaintiff’s levy was made in consequence of that declaration. But the evidence was very slight, to prove, that such was the case; and the court did not put that question the jury. The defendants, therefore, upon this ground, would be entitled to a new trial; and we think it unnecessary to consider the effect of the estoppel, had it been expressly found by the jury.

It is proper, however, to say, that the evidence in favour of the estoppel is so slight as hardly to be sufficient to justify the submission of the point to the jury. All that the plaintiff offered to prove, was, that shortly before his levy, he enquired of Brandigee whether he claimed any interest in the premises; and he was informed by Brandigee, that he did not. This might have been, and probably was, intended as a mere acknowledgment that his debt was paid. If so, it had no reference to the legal title, which his mortgage deed gave him, and amounts to no more than proof of the payment of the mortgage debt, in any other way; which, we have seen, is not sufficient to destroy, at law, the title which the deed originally conveyed to him. Nor was there any other evidence that the levy was made in consequence of this declaration of Brandigee, than the mere fact, that it was made a short time before the levy was made. We have not, therefore, thought it necessary to determine definitely the effect of the estoppel claimed, being satisfied that a new trial must be granted, on the ground suggested; and believing also, that the evidence was not sufficient to raise the question of the estoppel.

This may be a hard case for the plaintiff, but we think it conclusive upon him, in a court of law; and whether he has any remedy in chancery, it is not for us now to determine. The point is not an immaterial one, when it is considered, that the company has a lien upon all the property they insure, for the purpose of paying losses that may be assessed upon its members; and it is very obvious, that, if they were seeking to make their lien available, they might meet with difficulties, in regard to the proof of the payment of the Brandigee debt, as well as of the matter of estoppel, which the plaintiff can more easily avoid. It was to guard against the necessity of being driven to resort to such proof, that the 13th section of the charter was drawn up, in such clear and unequivocal language.

We advise the superior court, that the defendants are entitled to a new trial.

In this opinion the other judges concurred.

New trial granted.