Barry v. Hamburg-Bremen Fire Ins. Co.
| Decision Date | 05 June 1888 |
| Citation | 17 N.E. 405,110 N.Y. 1 |
| Parties | BARRY v. HAMBURG-BREMEN FIRE INS. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action on a policy of insurance by Anna Barry against the Hamburg-Bremen Fire Insurance Company. From an order granting a nonsuit plaintiff appeals.
W. E. Osborn, for appellant.
Edward Salomon, for respondent.
It was assumed upon the trial that the property described in the insurance policy, upon which this action was brought, had been destroyed by fire, and the policy had become payable by its terms to the plaintiff, except for the alleged breach of a condition of the policy set up as an affirmative defense by the answer. The condition referred to was a clause reciting, substantially, that ‘if the property shall be sold or transferred, or any change take place in the title or possession, whether by legal process, judicial decree, or voluntary transfer or conveyance, * * * without the consent of this company written hereon, * * * then * * * this policy shall be void.’ The property referred to consisted of real estate, and it was admitted on the trial that no change of possession thereof had taken place within the meaning of the above condition. It was alleged, however, that the property had been sold or transferred, and a change of title had been effected, which it was claimed avoided the policy. To support this issue, the defendant gave in evidence two deeds, both absolute in terms, and each purporting to convey the property,-one from Maria Sleight, the owner, to one Michael McLoughney, Jr., and another from McLoughney to John H. Corwin,-which were each executed subsequent to the date of the policy, and were respectively duly recorded in the clerk's office of the county where the property was situated. This evidence established a prima facie case for the defendant. To obviate the effect of this evidence, the plaintiff offered to prove that the deed to McLoughney was given under a parol agreement to secure an existing indebtedness from Mrs. Sleight to McLoughney, and that a subsequent agreement was made between Mrs. Sleight and McLoughney whereby McLoughney relinquished his security, and conveyed the property to Corwin as security for a debt owing by Mrs. Sleight to the latter. The defendant's counsel, for the purposes of the motion, admitted the truth of the facts stated in the plaintiff's offer, and thereupon moved the court to nonsuit the plaintiff, and the court granted the motion; to which ruling the plaintiff duly excepted. The general term, upon appeal to that court, affirmed the judgment, and the plaintiff appeals to this court. For the purpose of our decision, it must therefore be assumed that the deeds in question were given as security. We are of the opinion that the courts below have erred in their views of this case, and that the question presented by the exception has been repeatedly adjudged in favor of the plaintiff by the courts of this state. There is no ambiguity in the terms of the condition of the policy, and no question of construction arises over the true meaning and intent of the provision. If the property has in fact been sold or transferred, or any change has taken place in the title or possession, then the policy by its terms becomes void. In determining this question, we can only inquire whether any transfer has been made which in law transferred the title of the property. The parties must be assumed to have contracted with full knowledge of the law, and to have used the terms employed in the policy with reference to the character which the law attaches to them. It is not contended by the defendant that the giving of a mortgage by Mrs. Sleight upon the property would have effected a sale or transfer thereof, or a change of title, within the meaning of the condition; but it is claimed that, because the defeasance was not written in the deeds put in evidence, they operated as a legal transfer of the title so far as the defendant was concerned, and thus came within the terms of the policy.
The precise and only question in the case is, what effect does the law give to a deed, absolute in form, but which in fact is given as security for a debt? Is it a conveyance of title,...
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