Bowman v. Franklin Fire Ins. Co.

• Decision Date: 25 June 1874
• Parties: SAMUEL M. BOWMAN v. THE FRANKLIN FIRE INSURANCE COMPANY OF THE CITY OF BALTIMORE.
• Court: Maryland Court of Appeals

40 Md. 620

SAMUEL M. BOWMAN v. THE FRANKLIN FIRE INSURANCE COMPANY OF THE CITY OF BALTIMORE.

Court of Appeals of Maryland

June 25, 1874

APPEAL from the Superior Court of Baltimore City.

This suit was brought by the appellant against the appellee upon a policy of insurance effected upon buildings which had been used as a distillery, and upon the boilers, engines and other machinery fixed and moveable, &c., contained in the buildings. The property was located in the county of Pittsylvania in the State of Virginia. The 19th clause of the policy provides that, "any incumbrance on the property hereby insured, whether existing at the time of issuing this policy or imposed subsequent thereto, must be assented to by this company, otherwise the policy shall be void" A commission to take testimony was issued to the State of Virginia, under which the abstracts of certain judgments rendered in that State, were filed with an agreement that they might be offered in evidence as records of the Court therein styled, with the same effect as if the said judgments and records had been duly authenticated as such according to the Act of Congress and the laws of Maryland; the plaintiff reserving the right to object to such records, as evidence upon all other grounds except the want of due authentication as records, and with the same reservation, the facts set forth in the certificates accompanying said abstracts were admitted to be true. One of the judgments according to the abstracts furnished, appeared to have been rendered on the 24th of August, 1867, in the county Court of Pittsylvania, in favor of Wm. R. McCoy, for the benefit of Elisha Barksdale Jr., against W. M. Keen and J. M. Walker for $5250 with interest and costs; and to have been entered on the lien docket November 9th, 1867. On the 13th of November, 1867, J M. Walker conveyed to the plaintiff certain land situated in Pittsylvania county, upon which is located the property insured under the policy now in suit. The following extracts from the Code of Virginia, were also filed with an agreement that they were in full force as part of the laws of Virginia in the month of November, 1867, when the deed from Walker to Bowman was executed and recorded, viz:

Ch 186, sec. 3. "In the following section the word 'judgment' shall include any bond or recognizance which has the force of a judgment.

Sect 4. The clerk of each county and corporation Court shall keep in his office, in a well bound book, a judgment docket, in which he shall docket without delay, any judgment in this State, when he shall be required to do so by any person interested, on such persons delivering him, if the judgment be not in his Court or office, an authenticated abstract of it. In such docket there shall be stated in separate columns the date and amount of judgment, the date of docketing it the alternate value of any specific property recovered by it, and the amount and date of any credits on the judgment, with the names, description and residence of the parties so far as they appear in his office, or in such abstract. Every judgment shall so soon as it is docketed be indexed in the name of each defendant therein. If a clerk fail to do anything required of him by this section, he shall pay a fine of not less than thirty, nor more than three hundred dollars, to any person who will prosecute therefor.

Sec. 6. Every judgment for money rendered in this State heretofore or hereafter against any person, shall be a lien on all the real estate of, or to which such person shall be possessed or entitled, at or after the date of such judgment, or if it was rendered in Court, at or after the commencement of the term at which it was so rendered, except as follows:

Sec. 8. No judgment shall be a lien on real estate as against a purchaser thereof for valuable consideration without notice, unless it be docketed according to the third and fourth sections of this chapter, in the county or corporation wherein such real estate is, either within a year next after the date of such judgment, or ninety days before the conveyance of said estate to such purchaser."

It was admitted that the existence of the judgment liens offered in evidence, was not made known to the defendant.

Exception.--The plaintiff offered the following prayers:

1st. That if the jury find from the evidence, that the plaintiff, in the month of November, 1867, purchased of James M. Walker, the property mentioned in the deed of Walker, which has been offered in evidence, and that the said deed was executed and delivered by Walker and wife to the plaintiff, and the consideration for said purchase was paid or secured by the plaintiff, and that the said deed was recorded, as shown by the certificates thereon, and that the plaintiff took possession of said property, and was in possession, bona fide claiming title thereunder as absolute owner, and that he effected the insurance by the policy of the defendant offered in evidence, of the building and machinery, on the part of said property stated in the policy; and shall further find, that after the execution and delivery of said policy, the said building and machinery, or any part thereof, were consumed or damaged by fire in the month of May, 1868, and the notice of said loss was communicated by the plaintiff to the defendant, with due and reasonable diligence on his part, after the said fire, under all the circumstances of the case, and that the proofs of loss offered in evidence were furnished the defendant by the witness, Clark, and that the same were furnished with reasonable diligence after said fire, and that the defendant refused payment, upon the ground that it was not liable, then their verdict must be for the plaintiff for such loss, as they may find from the evidence the plaintiff sustained by reason of damage to said property by said fire, to the extent of the insurance stated in the policy, with interest, in the discretion of the jury from the time of such refusal to pay.

2nd. That the judgments and other evidence of incumbrances proved in the case do not prevent the plaintiff's recovery as to the machinery and fixtures, &c., insured in the policy, under the style of $1,500 on all boilers, machinery, &c.

3rd. That under the agreement of counsel offered in evidence, as to the laws of Virginia, and the judgments offered in evidence, the existence of said judgments did not constitute a lien or incumbrance upon the part of the property insured in the policy as machinery and fixtures, except as to such part of the same, as the jury may find to be affixed to the building, so as not to be removed therefrom, without injury to the freehold; and that said judgments do not prevent the plaintiff's recovery for such loss by fire, as they may find to be sustained, as to the machinery and fixtures so found by them attached to the freehold.

4th. That the existence and record of judgments against Walker, the plaintiff's vendor, which have been proved by the evidence, do not constitute evidence of incumbrances on the insured premises, under the meaning of the policy.

And the defendant prayed the Court to instruct the jury as follows:

That under the agreement of counsel returned with the Danville commission in this case, with reference to the effect to be given to the certificates of the judgments mentioned in said agreement, the certificate of the judgment of Wm. R. McCoy for the benefit of Elisha Barksdale, Jr. vs. W. W. Keen and J. M. Walker, dated August 24th, 1867, for $5250, with interest from 1st January, 1864, is conclusive evidence of the existence of the judgment therein referred to in the County Court of Pittsylvania county, and the jury cannot find that there was not such a judgment in said County Court of Pittsylvania county, and there being no evidence that the existence of said judgment was made known to the Insurance Company at the time of the insurance, or assented to by said company, the plaintiff is not entitled to recover, provided the jury believe the evidence as to the law of the State of Virginia with reference to the lien of judgments.

The Court, (DOBBIN, J.,) granted the plaintiff's first prayer with the following modification:

Unless the jury shall find the facts stated in the defendant's prayer, in which event they will find for the defendant; and rejected all the other prayers of the plaintiff, and granted the prayer of the defendant. The plaintiff excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before STEWART, GRASON, MILLER, ALVEY and ROBINSON, J.

George C. Maund and A. Stirling, Jr., for the appellant.

Judgments are not incumbrances within the meaning of the 19th clause of the policy; the word improve, and the word assent, alike import such an incumbrance as results from the voluntary agency of the party insured--these words refer only to the sort of incumbrances which the insured may create or not, at his election, and to such only as he may, at his election, abstain from creating, if he should fail to obtain the company's assent. This clause seems necessarily to be intended as a warning to the insured, that if he place incumbrances upon the insured property without first obtaining the assent of the company, he will avoid his policy, and (unless it be mockery) gives to him the right of choosing whether he will avoid his policy or not.

But a judgment is not an incumbrance of this character. So far from being imposed by the insured, it may be, and generally is, imposed upon him in spite of his strenuous resistance.

The seventh condition of the policy, provides that "when the interest of the assured in the property insured is impaired or conveyed away by sale, gift, or otherwise, this insurance to the extent of such impairment of interest,...