Macomber v. Minneapolis Fire & Marine Ins. Co.

• Decision Date: 22 June 1925
• Court: Wisconsin Supreme Court
• Parties: MACOMBER v. MINNEAPOLIS FIRE & MARINE INS. CO. ET AL.

187 Wis. 432

204 N.W. 331

MACOMBER

v.MINNEAPOLIS FIRE & MARINE INS. CO. ET AL.

Supreme Court of Wisconsin.

June 22, 1925.

Appeal from Circuit Court, Marathon County; A. H. Reid, Judge.

Action by George Macomber against the Minneapolis Fire & Marine Insurance Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.

This was an action brought on three fire insurance policies, aggregating $2,100, tried before the court and a jury. At the conclusion of the evidence the court directed a verdict for the defendants. A verdict was also directed in favor of Mary Latsch, mortgagee, to the amount of $1,000, and judgment entered thereon. Thereafter, on motion of the defendants, said defendants were subrogated to the rights of Mary Latsch, mortgagee.

The facts established by plaintiff's evidence, which must be taken as true for the purposes of this appeal, are in substance as follows: The plaintiff, George Macomber, and his wife, Emma Macomber, lived in a dwelling house on certain lands, the legal title to which was in Emma Macomber. The property was purchased with money furnished by the husband, and the wife had no property of her own prior thereto. The insurance policies in question were taken out in the name of Emma Macomber. Thereafter Emma Macomber transferred the property to Anna M. Stockum, who in turn deeded the property back to George Macomber and Emma Macomber as joint tenants. Shortly after these transfers the insurance companies' agent was told of the transfers, but no request was made to change the insurance policies. Thereafter Emma Macomber died, and George Macomber, by operation of law, became the sole owner of the property. The insurance companies' agent knew of the death of Emma Macomber, but the policies were allowed to continue as first issued. Thereafter the dwelling house burned, and George Macomber made claim for the amount of the insurance. Negotiations were had by the insurance companies and the plaintiff with reference thereto. The insurance companies did not deny liability, but, because of other insurance taken out in the name of George Macomber after he became the sole owner of the property, the defendants contended they were entitled to pro rate the loss. An agent of the companies, having knowledge of the facts, called upon the plaintiff and requested that proofs of loss be furnished, and discussed the possibility of the companies rebuilding. The plaintiff thereupon furnished proofs of loss at a considerable inconvenience to himself and at some expense for attorney's fees. The negotiations for settlement fell through and the action was commenced, whereupon the defendants denied liability.

The plaintiff seeks to recover on the ground that he was the equitable owner of the premises in the first instance, and that the insurance was taken out for his benefit. He also claims that the insurance companies waived forfeiture because of the transfer of title, and cannot be heard to object thereto. He further claims that the companies are estopped from denying liability because of their actions in failing to deny liability after the loss, in negotiating settlement, and in requiring proofs of loss.

Brown, Pradt & Genrich, of Wausau, for appellant.

Bird, Okoneski & Puchner, of Wausau, and Snyder, Gale & Richards, of Minneapolis, Minn., for respondents.

CROWNHART, J. (after stating the facts as above).

The trial court directed judgment in favor of the defendants on the theory that a contract of insurance is personal between the parties, and that the insurance companies, defendants, never entered into any contract of insurance with the plaintiff. The plaintiff, on the other hand, contends that he was the equitable owner of the premises, and as such was entitled to insure the same, and that the insurance policy issued on the premises was for his benefit.

[1] The policy contains a provision of forfeiture if the title to the property shall be other than “unconditional and sole ownership.” This court held in the case of Matthews v. Capital Insurance Co., 115 Wis. 272, 91 N. W. 675, that equitable ownership of property was “unconditional and sole ownership,” within the language of the standard policy, but here the trial court held that payment of the consideration for the premises by the plaintiff did not constitute him the equitable owner, and this would seem to be a correct view of the law. The deed conveyed the property to the plaintiff's wife, in fee simple. Section 2077, Stats., provides:

“When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment is made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.”

[2] The next section refers to conveyances in fraud of creditors. But, assuming that the plaintiff had the equitable title, when the wife conveyed to the third party for the purpose of creating a joint tenancy, and the third party conveyed back to...