Broyles v. Scottish Union & National Ins. Co.

• Decision Date: 25 February 1933
• Citation: 64 S.W.2d 517
• Parties: BROYLES et al. v. SCOTTISH UNION & NATIONAL INS. CO. et al.
• Court: Tennessee Supreme Court

Page 517

64 S.W.2d 517

BROYLES et al. v. SCOTTISH UNION & NATIONAL INS. CO. et al.

Court of Appeals of Tennessee, Eastern Section.

February 25, 1933.

Certiorari Denied by Supreme Court June 24, 1933.

Appeal from Chancery Court, Unicoi County; S. E. Miller, Chancellor.

Suit by Frank E. Broyles and others against the Scottish Union & National Insurance Company and others. Judgment for complainants, and defendants appeal.

Affirmed.

Barnes & Lewis, of Johnson City, for appellants.

Cox, Taylor & Epps, of Johnson City, and James G. Bare, of Erwin, for appellees.

PORTRUM, Judge.

This suit was instituted to collect $1,500 on a fire insurance policy issued by the Scottish Union & National Insurance Company, and payable to the insured, R. M. Barry, trustee. The company resists payment and seeks a forfeiture of the policy on the ground that R. M. Barry, trustee, was not the "sole and unconditional owner of said property." The policy provides for a forfeiture in case the insured is not the sole and unconditional owner of the property. As an additional defense, the company relies upon an equitable estoppel, alleging that at the time of the fire there were two policies of insurance upon the property, one payable to Frank E. Broyles, sole and unconditional owner of the said property, and the other, which is the policy in suit, to R. M. Barry, trustee. The Broyles policy was written by the Automobile Insurance Company, and after the fire, both companies placed the adjustment in the hands of an adjustment agent, Mr. Charles Murphy, for settlement with the insured. This adjuster made inquiry first of Mr. Barry as to who was the owner of this property, and was informed by Barry that he was the person to make settlement with, and it was not necessary to see Mr. Broyles. However, at a later date the adjuster did see Mr. Broyles, and a proof of loss was made out by the adjuster and sent to Mr. Broyles for execution, to be accompanied with a certified copy of the deed to the property which shows the title to the property was in the name of Frank E. Broyles. In Mr. Murphy's communication Mr. Broyles was directed to sign this proof of loss at the place marked by an "X," and he did sign the proof of loss at the designated place, without reading the proof, and swore to it, sending the paper, accompanied by the copy of the deed, to the adjuster, Mr. Murphy, who then paid, or advised the company to pay, the claim standing against the Automobile Insurance Company, but the adjuster declined to pay the claim against the Scottish Union & National Insurance Company, for the asserted reason that Frank E. Broyles was the sole and unconditional owner of the property, and that R. M. Barry, trustee, had no interest in the property either individually or as trustee. It is now pleaded that Frank E. Broyles, who is a party complainant in this suit, is estopped to assert a claim under the policy made payable to R. M. Barry, trustee, since he had taken a contrary position and had induced the Automobile Insurance Company to act upon this previous representation.

The bill alleges that R. M. Barry, James G. Bare, and Frank E. Broyles purchased the property as tenants in common, but for reasons explained the legal title was taken in the name of Frank E. Broyles, with the understanding that, after certain debts had been satisfied, Broyles would deed a one-third interest in the property to each of his cotenants; that, under these facts, Bare and Barry were the equitable owners of two-thirds of this property, while Frank E. Broyles was the legal owner of one-third of the property, and the holder of the balance of the legal title as trustee for his cotenants. The defendants deny this fact, and assert that Barry and Bare have no title, legal or equitable, to the property. And that the policy is forfeited under the forfeiture clause above referred to. The chancellor in an exhaustive opinion attached to the record disposed of these defenses in favor of the complainant, and granted a recovery, from which the defendant has appealed to this court.

The defense asserted in the lower court, i. e., that Barry and Bare had no interest either legal or equitable in the property, was not sustained by the proof; the chancellor found that Broyles, Barry, and Bare were the owners of the property as tenants in common, and that Broyles held the legal title in trust to the extent of his cotenant interest for them. These facts are satisfactorily established by the proof, and we concur in the finding of the chancellor in respect to them.

Since the facts are not as asserted by the defendant in the lower court, then it has become necessary that the defendant abandon its defense upon the facts and assert a technical defense in respect to the forfeiture. Therefore it is contended in this court that R. M. Barry was not in law the trustee (for, if any one was, it was Frank E. Broyles), and that he as the trustee was not the sole and unconditional owner.

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