Nease v. Ins. Co. *(Judge Green
| Decision Date | 04 March 1889 |
| Citation | 32 W.Va. 283 |
| Parties | Nease v. Insurance Co.*(Judge Green, absent.) |
| Court | West Virginia Supreme Court |
A doubtful or partial remedy at law does not exclude the injured party from relief in equity.
A suit may be maintained in a court of ecuity by or in the name of the sheriff, under Code 1887, c. 141, s. 15, where there is a conflict between two or more execution-creditors in respect to the same fund or property, and where such suit will avoid a multiplicity of suits.
Where a policy of fire-insurance provides, that the policy shall be void in any case of a transfer or change of title in the property insured or the foreclosure of a mortgage thereon, the execution of a trust-deed on the property, after the insurance was made, under which no sale had been made at the time of the loss, will not avoid the policy.
An assignment of a fire-insurance policy subsequent to the loss is valid regardless of the conditions of the po: icy.
When the requirements of the policy make it the duty of the insured to submit with the proof of loss a certificate of the nearest magistrate, and a certificate is furnished, to which no objection is made within a reasonable time, the insurer will be estopped from making objections, on the ground that it was not made by the nearest magistrate.
Tomlinson & Wiley for appellant.
Simpson $ Howard and Garni $ Gibbons for appellees.
Snyder, President:
The ^Etna Insurance Company, a foreign corporation, in July, 1878, issued a fire insurance policy to C. M. Moore, for $2,000.00. Of this amount f1, 000.00 was on the dwell- ing-house of said Moore situate on his farm in Mason county, $700.00 on his household furniture and other personal effects in said house, and $300 00 on a piano. By renewals from time to time this policy was continued in force, until after the said property was destroyed by fire as hereinafter stated. Tn October, 1878, said Moore executed a trust-deed upon the land, on which said house was situated to secure debts due from him, and between that date and the time the fire occurred said Moore executed several other trust-deeds upon said land, and a number of judgments and decrees for money were recovered against him. In the fall of 1885, a suit in equity was brought in the Circuit Court of Mason county by Caroline Long against said Moore and others, to ascertain the liens on the lands of said Moore and to subject the same to the satisfaction of said liens. On Febreary 18, 1886, by a consent-decree entered in said cause the liens and their priorities were fixed, the lands ordered to be sold, and a receiver appointed to take possession of the lands and rent the same until January 1, 1887. The receiver at once took possession of the lands, but Moore continued to occupy and reside in the dwelling-house until after March 19, 1886, on which day the said house and a large portion of the insured property therein were consumed by fire. On the same day, but after the fire occurred, the said Moore assigned his policy and claim for insurance to A. A. Hanly, who in payment thereof drew his check for $1,500.00 on the Ohio Valley Bank at Gallipolis and placed the same in said bank together with an agreement between him and Moore to the effect, that said check was not to be delivered to Moore or paid by the bank, until Hanly should notify the bank, that the Etna Insurance Company had paid to him the amouut of said insuranee. On March 22, 1886, four executions were issued from the clerk's office of the Circuit Court of Mason county and placed in the hands of II. G. Nease, the sheriff of said county. These executions were against said Moore and in favor of C. P. T. Moore, the executors of John MacCulloch, deceased, and others. On the same day suggestions were sued out on said executions, two of which were served on said A. A. Hanly as garnishee, and the other two on the ^Etna Insurance Company as garnishee.
On May 19, 1886, the said H. G. Nease, as sheriff, suing at the relation and costs of said C. P. T. Moore and the executors of John MacCulloch filed his bill in the Circuit Court of Mason county against said C. M. Moore, the Etna Insurance Company, the said A. A. Hanly and the other execution-creditors of said C. M. Moore, in which he sets forth the foregoing facts, and charged, that said executions were liens on the said insurance-fund in the order of their respective priorities, either in the hands of said insurance company or of the said A. A. Hanly as the assignee thereof; and praying that an injunction might issue to restrain the payment of said fund to either said C. M. Moore or said Hanly; and that the rights and priorities of the liens of said execution-creditors be ascertained, and that the amount due from said garnishees or either of them be fixed, and the same applied to the payment of said creditors according to their respective rights. An injunction was awarded, and issued according to the prayer of the bill.
The insurance company demurred to said bill and filed its answer thereto, in which it denied that any considerable portion of the household property insured by it was in said house at the time of the fire and destroyed thereby, or that the piano was the property of said Moore. Said answer averred, that by reason of the acts and transactions of the insured the said policy had become forfeited and void according to the provisions contained therein, and that the company was not liable to the said Moore or the plaintiff for any part of said insurance. The prayer is that said policy may be declared void, and all relief denied to the plaintiff.
Depositions and other proofs were taken and filed, the demurrer to the bill overruled, and on February 25, 1888, the cause was heard, and a decree entered therein, by which it was found and decided, that the Etna Insurance Company was liable on said policy for $1,700.00 with interest thereon from May 20, 1886, that being the whole amount of the insurance less the insurance on the piano; and having ascertained the aggregate of said amount as of. the date of the decree to be $1,878.50 the court ordered the insurance company to pay...
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Carney v. Barnes.
...the law remedy must be as complete as that afforded by chancery. Rich v. Braxton, 158 U. S. p. 407; Hogg Eq. Principles, 5; Nease v. Ins. Co., 32 W. Va. 283. Here is a deed passing a present estate, a vested estate, containing a condition subsequent to defeat the deed upon the contingency o......
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