MaCtier v. Osborn
| Decision Date | 06 March 1888 |
| Citation | 146 Mass. 399,15 N.E. 641 |
| Parties | MACTIER v. OSBORN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John C. Gray and Augustus P. Loring, for demandant.
There was a forfeiture of the tenant's estate at law. The condition for reentry in the lease, on the breach of any of the covenants therein, gave the demandant a right of entry on the breach of the covenant to insure. If the buildings were uninsured at any one time, the covenant was broken. Doe v. Peck, 1 Barn. & Adol. 428. Bringing the action operates as an entry. Pub.St., c. 173,§ 3; Austin v Cambridgeport Parish, 21 Pick. 215, 224; Stearns v Harris, 8 Allen, 597, 598. Therefore, in this action the demandant may take advantage of any breach of condition prior to the entry on September 20th, or between September 20th and October 12th, the date of the writ. The covenant to insure was broken prior to the entry, on September 20th. In Doe v. Gladwin, 6 Q.B. 953, insurance in the name of the lessee was held to be an "unquestionable" breach of condition requiring the lessee to insure in the joint names of the lessor and lessee. In Penniall v. Harborne, 11 Q.B. 368, insurance in the name of the lessor and lessee was held a breach of condition to insure in the name of the lessor. Equity will not relieve from the forfeiture. Equity will not interfere with the legal rights of the parties as established by their contract, in the absence of accident, mistake, fraud, or surprise. Courts of equity have uniformly held that there is no relief in equity from a forfeiture by breach of condition to insure. Rolfe v. Harris, 2 Price, 206n; Reynolds v. Pitt, 19 Ves. 134; White v. Warner, 2 Mer. 459; Green v. Bridges, 4 Sim. 96; Thompson v. Guyon, 5 Sim. 65; Gregory v. Wilson, 9 Hare, 683; Nokes v. Gibbon, 3 Drew. 681; Job v. Bannister, 2 Kay & J. 374. See, also, Elliott v. Turner, 13 Sim. 477, 485. It is believed that there are no authorities in conflict with these. The exception to the general rule of equity, in the case of relief from forfeiture on account of non-payment of a certain sum of money, at a fixed day, has never been extended to breaches of other conditions. Peachy v. Somerset, 1 Strange, 447; Hill v. Barclay, 18 Ves. 56; Bracebridge v. Buckley, 2 Price, 200; Elliott v. Turner, ut supra. The exception will not be extended to cases of money payment where time is of the essence. Klein v. Insurance Co., 104 U.S. 88. This court has refused to extend the exception to a forfeiture by breach of condition to indemnify. Hancock v. Carlton, 6 Gray, 39. In Vermont the court refused to extend the exception to a forfeiture by breach of condition to keep a horse for the use of the obligee. Dunklee v. Adams, 20 Vt. 415. It has been expressly held that the exception cannot extend to a breach of condition in a lease to insure. See authorities cited above. No notice is required on breach of covenant to repair. Hayden v. Bradley, 6 Gray, 425. See, also, Bracebridge v. Buckley, 2 Price, 200, 213. Supposing the tenant meant that the insurance should have been taken out in the proper form, i.e., the form in which it stood before the assignment to her, she is not entitled to relief. She is responsible for the acts and defaults of her agents. See Nokes v. Gibbon, 3 Drew, 681, 693. See, also, Elliott v. Turner, 13 Sim. 477, 487; Klein v. Insurance Co., 104 U.S. 88. There was neither surprise nor fraud, as the demandant did nothing, and had nothing to do, in the matter. She did not mislead the tenant, nor fail to perform any duty that the tenant had a right to expect. All the facts were peculiarly within the tenant's knowledge, and she alone had any duty to perform, and she alone did anything. Relief, then, must be granted on the ground either of mistake or of accident. Equity will never, on the ground of mistake, deprive A. of his legal rights under a contract with B., by reason of a mistake of B. which A. has neither caused nor shared. Iron Co. v. Iron Co., 102 Mass. 45, 48; Insurance Co. v. Davis, 131 Mass. 316; Graves v. Insurance Co., 2 Cranch, 419, 442 et seq. Any relief, then, must be on the ground of accident, and the question is whether the facts which the tenant offers to prove amount to such an accident that equity will relieve against it. What does and what does not amount to such accident is shown by the authorities. SHADWELL, V.C., in Elliott v. Turner, 13 Sim. 477, 485, 487. See Eaton v. Lyon, 3 Ves. 690, 692, 693; Gregory v. Wilson, 9 Hare, 683; 1 Story, Eq.Jur. (11th Ed.) § 89. The facts objected to in the eleventh clause are incompetent. Bracebridge v. Buckley, 2 Price, 200; Rolfe v. Harris, 2 Price, 206n; Hill v. Barclay, 18 Ves. 56, 63. The tenant is not entitled to any consideration in a court of equity. She does not come into equity with clean hands. Equity will not relieve against a perverse and willful breach of covenant. Peachy v. Somerset, 1 Strange, 447; Descarlet v. Dennett, 9 Mod. 22; Hill v. Barclay, 18 Ves. 56, 63; Rolfe v. Harris, 2 Price, 206n; 1 Story, Eq.Jur. (11th Ed.) § 105; Gregory v. Wilson, 9 Hare, 683.
Memorandum in the right of the mortgagee to retain insurance money. The insurance, as affected by the policies, covers the interest of Mrs. Osborn as owner of the fee. Mrs. Osborn was insured by them on the building. This covers her insurable interest in the fee. Oliver v. Greene, 3 Mass. 133; Bartlet v. Walter, 13 Mass. 267; Finney v. Insurance Co., 1 Metc. 16. It would not be competent in any such suit, by any evidence outside a policy, to show that it did not cover her interest in the fee. Pearson v. Lord, 6 Mass. 81. If Mrs. Osborn has assigned her interest in the lease, retaining her interest in the fee, she, or in this case the mortgagee, would have been entitled to recover on the policies to the extent of her interest in the fee. Even more than this, as between the insurance companies, Mrs. Osborn, and the lessee, the insurance money was appropriated to the mortgagees. If Mrs. Osborn had a mortgaged, insurable interest as owner of the fee, on account of which any money would have been payable, she could not have diverted from the mortgagee any portion of that money so payable, on the ground that she had also an insurable interest as lessee; she would not be allowed to say that she chose to consider any portion of that money as payable on account of her interest as lessee. King v. Insurance Co., 7 Cush. 1, 5, 6; Ames v. Richardson, 29 Minn. 330, 13 N.W. 137, and cases cited. Particularly will this be so when she has covenanted, as in this mortgage, that her mortgaged interest was free from incumbrances. The insurance money so payable to the mortgagees is not affected, by reason of any constructive notice of the covenant, with a claim of priority in favor of the covenant. George v. Wood, 9 Allen, 80. The mortgagees were under no duty from anything in the policies to guess that Mrs. Osborn had any obligation to other persons; a fortiori, not to guess that she had any unfulfilled obligation. It was no concern of theirs. Dunlop v. Avery, 89 N.Y. 592.
Robert M. Morse and William P. Blake, for tenant.
The sole object of the provision for making the insurance money payable to the parties of the first part was to secure a fund to be used in rebuilding; and therefore payment to any one of the tenants in common, who subsequently acquired the title of the original lessors, would have been a complete protection for the other owners, as the money could only be used to repair or rebuild the building which they owned in common. It was no breach of the condition of the lease for the tenant in this action to assign her one-third interest in the policies, in 1885, to the Suffolk Savings Bank as mortgagee. On the contrary, the mortgagee, claiming title under the original lessors, had the same right to an assignment of the policies that the demandant had. Willoughby v. Lawrence, 4 N.E.Rep. 356. Courts of equity are only closed against a tenant where the forfeiture is incurred by his willful and culpable neglect to fulfill the terms of his covenant. 2 Tayl.Landl. & Ten. § 496; Sanders v. Pope, 12 Ves. 282; Baxter v. Lansing, 7 Paige, 350; Skinner v. Dayton, 2 Johns.Ch. 526; Livingston v. Tompkins, 4 Johns.Ch. 415; Henry v. Tupper, 29 Vt. 358; Atkins v. Chilson, 11 Metc. 117. It was not a case of neglect or refusal to insure, in which courts of equity have, under certain circumstances, refused to interfere, but the whole building was covered by insurance amply sufficient in amount. There can be no doubt that Hannah Osborn, trustee, as lessee had an insurable interest in the whole building. By the law of insurance any person has an insurable interest in property by the existence of which he receives a benefit, or by the destruction of which he will suffer a loss, whether he has or has not any title in, or lien upon, or possession of, the property itself. 3 Kent, Comm. *275. Railroad Co. v. Insurance Co., 98 Mass. 420, 423; Williams v. Insurance Co., 107 Mass. 377. There has been no loss by fire, and the demandant has suffered no damage. If the insurance policies had been made payable to her, she could in no way have availed herself of them. Her claim is simply an effort to get possession of a valuable building before the same has been paid for, and expiration of the lease, under a technical claim of breach of condition. It is clearly a case where the tenant, if there has been a breach, is entitled to the relief of a court of equity. 2 Tayl.Landl. &. Ten. §§ 495, 496, and cases cited. Strictly speaking, there could be no breach of this covenant unless there should be a loss by fire, and the insurance companies or the other parties interested should refuse to pay over the insurance money as aforesaid, neither of which had happened.
OPINION
This is a writ...
To continue reading
Request your trial