Bemis v. Harborcreek Mutual Fire Insurance Company of Erie
| Decision Date | 17 July 1901 |
| Docket Number | 285 |
| Citation | 49 A. 769,200 Pa. 340 |
| Parties | Bemis v. The Harborcreek Mutual Fire Insurance Company of Erie, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 29, 1901
Appeal, No. 285, Jan. T., 1900, by defendants, from judgment of Superior Court, April T., 1900, affirming judgment of C.P Erie Co., Sept. T., 1897, No. 68, on verdict for plaintiff in case of E.L. Bemis v. The Harborcreek Mutual Fire Insurance Company of Erie. Reversed.
Assumpsit on a policy of fire insurance.
Appeal from Superior Court.
The facts appear by the opinion of the Supreme Court.
Error assigned was the judgment of the Superior Court.
The first and second assignments of error are sustained, and the judgment is reversed.
Frank Gunnison, for appellant. -- The decision of the Superior Court is contrary to that of the courts of many other states Foote v. Hartford Fire Ins. Co., 119 Mass. 259.
The Supreme Court of this state has gone further than the courts of some of the states, in declaring policies void for breach of the conditions forbidding alienation: Finley v. Lycoming County Mutual Ins. Co., 30 Pa. 311; Buckley v. Garrett, 47 Pa. 204; Girard Fire & Marine Ins. Co. v. Hebard, 95 Pa. 45; Barnes v. Union Mutual Fire Ins. Co., 51 Me. 110.
George H. Higgins, for appellee. -- The deed in this case being entirely without consideration, executed and delivered under a verbal agreement to re-convey at any time, was without any force or effect whatsoever, and did not even accomplish what the parties were endeavoring to do, that is, cut off the wife's dower in the real estate described in the deed: 1 Scribner on Dower, 401; 2 Scribner on Dower, 313; Boardman v. Dean, 34 Pa. 252; Hill v. Cumberland Valley Mutual Protection Co., 59 Pa. 474; Richards on Insurance, 157; Barry v. Hamburg-Bremen Fire Ins. Co., 110 N.Y. 1; Burkhart v. Farmers' Union Assn. & Fire Ins. Co., 11 Pa.Super. 280.
A mere nominal transfer, the actual interest remaining is not a breach of the condition.
Before McCOLLUM, C.J., MITCHELL, FELL, BROWN and POTTER, JJ.
This action was brought by the plaintiff on a policy of insurance issued by the defendant company, July 11, 1896, for the term of five years, from June 30, 1896, insuring the personal property and the buildings of the plaintiff. A condition of the policy, printed in the body thereof, was as follows:
"This entire policy, unless otherwise provided by agreement endorsed hereon, or added thereto, shall be void if any change, other than by the death of the insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants, without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured or otherwise."
On September 16, 1896, the plaintiff and his wife conveyed the land and buildings which were insured, to John Morse, by a warranty deed in the usual form. This was without notice to the defendant company, and without its consent. The deed was placed on record January 13, 1897. The property was subsequently re-conveyed by John Morse and wife to the plaintiff, Edwin L. Bemis, by deed dated February 20, 1897, and not recorded until April 27, 1897, twenty-four days after the loss by fire had occurred.
If the conveyance of the property by the insured, as above stated, during the term covered by the policy, was a violation of its terms, then the policy was void.
"The law of the relation...
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