| Mich. | Jun 10, 1879
Counsel for plaintiff in error very properly arranged the questions raised in this case under-three heads, and we will follow that arrangement.
I. The notice. The provision in the policy requiring notice to be given is as follows: “In case of loss the-assured shall give immediate notice, stating the number of the policy and the name of the agent.” It was not claimed that any notice whatever was given by Colby, the owner of the premises, and the person to whom the policy was issued. The policy was made payable, in.
We are of opinion that the notice was sufficient within the letter and spirit of the policy, when given by these parties. No matter what the intention of the parties may have been as to the time the assignment to Dobbins, made after the fire, should be considered as of an earlier date, it could only take effect and operate as •at the time of the delivery after the fire, and as an assignment of a money demand against the company. •Colby thereupon having no longer any interest in the policy, or the claim thereunder, except as might be applied in payment of his debts, could not, by a neglect ■or refusal to notify the company of a loss, deprive the mortgagee or the assignee of their rights. They had a direct interest in the matter, and a notice from them would be equally good and available to the company as would a notice from Colby. The mortgagee was one of the parties “assured” within the meaning of the policy, and a notice given by him would enure to the benefit of all other interested parties, and such notice need not be in writing. This notice is distinct from proofs of loss. The whole object is that the company may know that a loss has in fact occurred, so that it might take such action as it considered proper to protect its interests.
II. Whether the plaintiff, defendant in error, could bring this action in its own name. Jagger and Dobbins assigned all their claim to the sewing machine company. This we think clearly gave the company a
III. The third and most important question relates to the mortgage given to Dobbins. The premises in question were and constituted the homestead of Colby. Mrs. Colby, at the time this mortgage was given, was absent in New Hampshire, but it is not claimed that there was any abandonment of the premises, or that they were not, in fact, at the time the mortgage was executed, exempt as a homestead. Mrs. Colby did not join with her husband in giving this mortgage, and under the constitution and statutes of this state, the mortgage was invalid, and no process of reasoning could well be adopted that would give any force or effect whatever to such an instrument. That such a mortgage is wholly void was conceded on the argument, and correctly.
Was then this mortgage an incumbrance upon the property which would vitiate the policy, according to the terms thereof? We are all clearly of opinion that it would not. The policy has reference to a valid incumbrance ; a void mortgage is no incumbrance at all. Conditions in a policy, rendering it void in case of subsequent insurance without consent, have frequently been held not to be avoided, unless such subsequent insurance was valid and enforceable. The principle here is the same. What the parties may have supposed, would be wholly immaterial. A valid incumbrance would render void the policy, ' irrespective of what opinion the assured might entertain in reference thereto. The legality or illegality of the incumbrance, and not the intention of the assured, must govern. Sutherland v. Old Dominion Insurance Co., (Va.) 7 Rep., 446; Hubbard vs. Hartford F. Ins. Co., 11 Am., 125; Thomas v. Builders’ Fire Ins.
The judgment must be affirmed, with costs.