Nickerson v. Nickerson

• Decision Date: 28 January 1888
• Citation: 12 A. 880,80 Me. 100
• Parties: NICKERSON v. NICKERSON et al.
• Court: Maine Supreme Court

12 A. 880

80 Me. 100

NICKERSON

v. NICKERSON et al.¹

Supreme Judicial Court of Maine.

January 28, 1888.

Exceptions from supreme judicial court, Waldo county.

Trustee process brought by a mortgagee to enforce a lien upon a policy of insurance, under Rev. St. c. 49, § 53, which provides that in case a mortgagor of insured real estate does not consent that the amount received on the policy shall be paid towards the mortgage, "the mortgagee may, at any time within sixty days after a loss, enforce his lien by a suit against the mortgagor and the company as his trustee." The presiding judge ruled that sufficient proofs of loss had neither been furnished nor waived, and the plaintiff alleged exceptions. The trustee also filed motion for new trial, because findings of the jury were not sustained by the evidence.

Thompson & Dunton, for plaintiff. J. S. Harriman and D. C. Robinson, for trustee.

HASKELL, J. Trustee process under Rev. St. c. 49, § 53, by a mortgagee of real estate, to enforce a lien upon a policy of insurance against fire procured by the mortgagor, brought within 60 days after the loss. The insurance company disclosed a burning of the property insured, and that the policy was void by reason of a false representation of title by the assured in that he concealed a mortgage thereon to the plaintiff conditioned to secure the support of herself and husband during their natural lives, and that no proof of loss had been furnished, and that the property was feloniously fired by the assured, whereby all claim under the policy became barred. The plaintiff answered the disclosure by averring that, if false representations of title were made, the risk was not increased by reason of the mortgage concealed, and that formal proof of loss had been waived, and that the property was not fired by the assured. These issues of fact were submitted to a jury that found in substance, by direction of the court, that no sufficient proof of loss had been furnished or waived; and upon the evidence, that the risk, by reason of the mortgage concealed, was not increased, and that the fire was not the fraudulent act of the assured. The principal defendant neither appears to have answered to the suit nor to have testified at the trial. To the ruling of the court directing the jury to find that sufficient proofs of loss had neither been furnished nor waived, the plaintiff has excepted. This ruling is expressly based upon the statement that evidence was adduced tending to prove that "one Richardson, a duly-authorized agent of said company, and sent by said company, went to Knox, and held an interview with the plaintiff and her husband; that said agent was informed by said plaintiff and her husband about the fire, the property burned, and the value thereof; that said Richardson wrote what they said to him in a book, and stated to them that "that was all that was required." Rev. St. c. 49, § 21, requires the assured, within a reasonable time after notice to the company of the loss, to furnish it with "as particular account of the loss and damage as the nature of the case will admit, stating therein his interest in the property, what other insurance, if any, exists thereon, in what manner the building insured was occupied at the time of the fire, and by whom and when and how the fire occurred, so far as he knows or believes, to be sworn to before some disinterested magistrate, who shall certify that he has examined the circumstances attending the loss, and has reason to and does believe such statement to be true. The assured shall, if requested, * * * submit to an examination under oath in the place of his residence. No other preliminary proof of any kind shall be required before commencing an action against the company. * * * All contracts of insurance made, renewed, or extended, or on property within the state, are subject to the provisions hereof." It is not pretended that the preliminary proofs of loss prescribed by the statute had been furnished, but it is contended that they were waived. Rev. St. c. 49, § 52, gives a mortgagee of real estate a lien upon the policy insuring the mortgaged property, after notice to the company of his mortgage and the amount due thereon. Section 53 gives such mortgagee a right to collect his mortgage debt by trustee process against the assured, and the insurance company as trustee, commenced within 60 days after the loss. Rev. St. c. 86, § 55, provides that "no person shall be adjudged trustee * * * by reason of money or other thing due from him to the principal defendant, unless at the time of the service of the writ upon him it is due absolutely, and not upon any contingency." The insurance company can neither be subjected to a suit upon the...