Southwick v. Atlantic Fire & Marine Ins. Co.
| Decision Date | 20 October 1882 |
| Citation | 133 Mass. 457 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Thomas Southwick v. Atlantic Fire & Marine Insurance Company |
Worcester.
Exceptions overruled.
B. W Potter, for the plaintiff.
F. P Goulding, for the defendant.
This is an action on a policy of insurance, by which the defendant insured Margaret Hale against loss or damage by fire to the amount of four hundred dollars, "on her frame dwelling-house," in Worcester, payable in case of loss to the plaintiff, who was in fact the holder of a first mortgage on the house, although he is not described as such in the policy. The fourth clause of the policy provided that, "if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the benefit of the assured, the policy shall be void."
Upon the facts as they appeared as to Mrs. Hale's title and ownership of the property, the presiding judge ruled that the action could not be maintained on account of the erroneous statement thereof. Where one represents himself as the entire, unconditional and sole owner of property, and it is insured on that condition, it being clearly stipulated that, if he is not, the policy shall be void, the insurers can only be bound by their contract as they have made it. The inquiry is therefore presented whether the title or claim which Mrs. Hale had to this property was that of "entire, unconditional and sole ownership."
The policy was for a period of three years from November 28 1878. Nathan S. Hale owned this estate, subject to two mortgages, on January 18, 1876, and, having become bankrupt, Joel Knapp and Samuel Utley were regularly appointed his assignees in bankruptcy. On October 16, 1876, Knapp, who was not only one of the assignees in bankruptcy, but a second mortgagee by virtue of a mortgage which covered the property in question together with other property, made a quitclaim deed of this estate to Mrs. Hale. This deed did not by its terms convey or purport to convey the interest which Knapp had as co-assignee in bankruptcy. The power to sell vested in the assignees jointly, and was only to be exercised under the order and direction of the court. U.S. Rev. Sts. § 5066. Its only intent and effect were to convey the right which Knapp individually had in the property, and, although in form a quitclaim deed, it...
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