Bruce v. Jennings

• Decision Date: 12 July 1940
• Docket Number: 13313.
• Parties: BRUCE v. JENNINGS.
• Court: Georgia Supreme Court

10 S.E.2d 56

190 Ga. 618

BRUCE v. JENNINGS.

No. 13313.

Supreme Court of Georgia

July 12, 1940

Rehearing Denied July 23, 1940.

Syllabus Opinion by the Court.

Where parties to an executory contract for sale of improved realty agreed that purchaser should have no interest of any kind or character in fire insurance maintained by vendor, purchaser in suit for specific performance was not entitled to claim any portion of insurance money which had been collected by vendor, on destruction of improvements by fire prior to transfer of legal title.

Jennings as administrator of the estate of Matthews, brought a petition for specific performance against Mrs. Bruce. It was alleged that in May, 1937, Mrs. Bruce had executed to the decedent a bond for title to convey improved real estate for the agreed price of $1,200; that $600 was paid in cash, and the balance was evidenced by a note due in one year with interest at 7 per cent.; that when the contract of sale was made, there was a frame dwelling on the land worth $900, which was insured in the name of the defendant vendor; that in March, 1938, the house was destroyed by a fire, in which the vendee lost his life; that the insurer paid to the vendor $642, which she has retained for her own use and benefit; that the amount due on the bond for title is approximately the same as these proceeds. The plaintiff tendered to the defendant vendor and paid into court the premiums paid by the vendor with interest. The petition sought the benefit of the insurance proceeds, or alternatively, an "abatement in the purchase-price in accordance with the amount of damage done by the fire." In her answer, the defendant claimed that under her agreement with the vendee (shown in the agreed facts), she alone was entitled to the insurance; and she prayed for a recovery of the $600 balance of purchase-money and interest, with a special judgment against the property.

The judge, trying the case without a jury, on an agreed statement of facts, found that the plaintiff was entitled to an abatement of the $642 owing on the purchase-price, which was the amount of the insurance proceeds; that the defendant was entitled to the tendered insurance premiums and interest; and that the defendant should execute a warranty deed to the plaintiff. The essential agreed facts are as follows: That a named witness would testify, and it was considered in evidence, that the defendant vendor had "insisted in connection with said contract [of purchase] that the said [vendee] take over a policy of fire and storm insurance which she had on the property with the [named] insurance company, or else take out a policy, and maké a loss payable clause to her. The said [vendee] positively refused to do this, telling [the vendor] that he had never taken insurance on any property, and would not do so now, and that she could take out such insurance in her own name as she saw fit, or hold the policy she already had, paying the premiums on the property herself, and that he would have no interest of any kind or character in the insurance." It was further agreed that "under this arrangement, the [vendor] continued her policy of $700 with the [said] company, she having given the company a complete statement of fact, making the said payments, and having continued the policy in her own name without any interest in the said [vendee] in any way, and without his paying any assessments on the insurance or being obligated therefor. The said dwelling-house had a market value of $900 and she had $700 insurance in her own name as above stated on the property. She paid [the said premiums], [and] received the $642 proceeds of insurance. *** Neither [the vendee] nor his administrator *** paid any consideration for the policy except that the administrator after the fire and before filing the suit tendered the amount of premiums and assessments, admitting that the estate was liable for the premiums. It was agreed...