Gettelman v. Commercial Union Assur. Co.

• Decision Date: 22 October 1897
• Parties: GETTELMAN ET AL. v. COMMERCIAL UNION ASSUR. CO. ET AL.
• Court: Wisconsin Supreme Court

97 Wis. 237

72 N.W. 627

GETTELMAN ET AL.

v.COMMERCIAL UNION ASSUR. CO. ET AL.

Supreme Court of Wisconsin.

Oct. 22, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Adam Gettelman and another against the Commercial Union Assurance Company and two other insurance companies. From separate judgments against defendants, they appeal. Reversed.

It appears from the record: That April 29, 1893, the plaintiff Durbin owned the premises in question. That on that day he and his wife made a contract with one Mrs. Mary Ann Lynds, whereby they agreed to convey said premises to Mrs. Lynds upon the payment of $7,461.40 within five years, as therein prescribed. That Mrs. Lynds thereupon entered into the possession of the premises, and has continued in such possession ever since. That November 17, 1893, Mrs. Lynds transferred the land contract to Gettelman by an assignment, absolute in form, to secure the repayment of moneys then loaned and thereafter to be loaned by Gettelman to Mrs. Lynds. That such assignment was so made (according to Gettelman) upon an agreement that he should keep up the payments to Mr. Durbin on the land contract, and Mrs. Lynds was to pay him a certain amount per month, and that, if she failed, then the property was to be his. That according to Mrs. Lynds, at the time of so assigning the contract, Gettelman advanced $600, and agreed to make other advancements up to the aggregate sum of $1,622.28. That, in the spring of 1894, Gettelman, claiming that Mrs. Lynds was in default, commenced an action of wrongful detainer to put her and her husband out of possession. That thereupon Mrs. Lynds tendered to Gettelman $1,730, being, as she claimed, the whole amount due him, and kept such tender good. That Mrs. Lynds then commenced a suit in equity to compel Gettelman to accept the amount so tendered in full payment, and to reassign the contract to her. That October 29, 1894, Gettelman received the $1,730, which had been so tendered and paid into court, pursuant to an order of the court that such acceptance should be without prejudice. That on or about November 26, 1894, Gettelman paid the three several premiums, and procured from each of the three several defendants a policy of insurance of $1,000 “on the two story and stone basement frame building and frame pavilion thereto attached, including plumbing and all permanent fixtures therein, occupied by tenant as saloon and dwelling, situated” as therein described, and which policy contained the following provision, to wit: “It is understood that the assured holds title to the property herein described under land contract, and loss, if any, payable to John Durbin, as his interest may appear. * * * This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if * * * the interest of the assured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple. * * * This entire policy shall be void in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.” That May 1, 1895, it was held in the equity suit mentioned that the assignment to Gettelman was executed and given as security for money by him loaned and other sums to be advanced to Mrs. Lynds, and awarded him a lien upon the premises for the payment of the sums remaining unpaid, with interest. That July 10, 1895, the property so insured was totally destroyed by fire. That August 31, 1895, Gettelman furnished to the defendants, respectively, proofs of loss, as required by such policies. That July 27, 1896, the plaintiffs commenced this action against the three insurance companies, as provided by chapter 235, Laws 1893. That upon the issues made by the complaint of the plaintiffs and the answers of the three several defendants the cause was tried; and upon the trial it was admitted by the plaintiffs that the amount unpaid and owing to Gettelman on such debt so secured by the assignment of the contract at the time of the fire, and on August 23, 1895, being the day on which such proofs were made, was only $303.66, together with interest thereon at 6 per cent. per annum from November 15, 1894, and costs. That, except as thus stated, Gettelman had no further or other interest in the premises described in the policy of insurance. That at the close of the trial the court directed the jury to return a verdict in favor of the plaintiffs in the sum of $3,240, and such verdict was so returned accordingly. That thereupon the court ordered such verdict to stand, and directed a judgment for the plaintiffs against each defendant for the sum of $1,080 upon the verdict. From the three several judgments entered thereon accordingly, the three several defendants have, respectively, appealed.Quarles, Spence & Quarles, for appellants.

K. Shawvan, for respondents.

CASSODAY, C. J. (after stating the facts).

From the facts stated, it is very manifest that neither at the time of procuring the policies, nor at any time thereafter, did Gettelman have any right, title, or interest in or to the land contract, except that he held it as a pledge from Mrs. Lynds to secure him for the repayment of $303.66,...