Perry v. Mechanics' Mut. Ins. Co.

• Decision Date: 11 March 1882
• Citation: 11 F. 478
• Court: U.S. District Court — District of Rhode Island
• Parties: PERRY and others v. MECHANICS' MUTUAL INS. CO.

11 F. 478

PERRY and others v. MECHANICS' MUTUAL INS. CO.

United States Circuit Court, D. Rhode Island.

March 11, 1882

Thomas A. Jenckes, Charles A. Wilson, Francis W. Miner, and Wm. G Roelker, for plaintiffs.

Beach &amp Allen and Henry B. Hyde, for defendant.

COLT D.J.

This is an action upon a policy of fire insurance, and the case was heard by the court, jury trial having been waived. The policy insures Ellathea Perry and A. J. Perry in the sum of $500 on a barn upon their farm in Barrington, Rhode Island. It is dated January 21, 1880, and runs five years. It is in evidence that the fire occurred September 24, 1880, and that the building was totally destroyed. It further appears from the testimony that in 1877, when the title to the whole farm was in Ellathea Perry, she and her husband, John A. Perry made a verbal agreement with their son, Adelbert J. Perry, to convey to him one-half of the estate; the understanding being that he was to live upon the farm and erect a house and barn upon his portion. The son entered into possession. A cottage was built on the land called his. The barn covered by this policy of insurance was also built, one-half being situated on the land considered as his, and the other half on the land of his mother, Ellathea Perry. The son, according to the evidence, paid for the cottage and one-half the barn. He first advanced $1,000 and then from $400 to $500. He afterwards built an addition to the house. From 1877 until the summer of 1880 he remained in possession of the premises including the house and one-half of the barn. Then it was decided and agreed that he should give up his interest in the estate to Ellathea Perry, in exchange for some property in Providence.

As part of this transaction we find, under date of September 3, 1880 as assignment on the back of the policy, by A. J. Perry, of all his right, title, and interest in the policy to Ellathea Perry; and an indorsement of assent by the company through Snow & Barker, agents. The company now resists payment on several grounds. It is contended that the parol agreement or contract to convey being made by a married woman, even with the husband's consent, and though the person pays the purchase money, enters into possession, and makes improvements, is absolutely void under the laws of Rhode Island, which provide that a married woman may convey real estate by deed in which her husband joins; and that consequently A. J. Perry, at the time the policy was taken out, had no insurable interest in the property, and that therefore the policy is void, at least to the extent of this claim under it. But admitting that this agreement is void, as it appears to be, (Bishop, Married Women, vol. 1, Sec. 601, and vol. 2, Sec. 180; Pitcher v. Smith, 2 Head, 208; Lane v. McKeen, 15 Me. 304; Warner v. Sickles, Wright, 81; Miller v. Hine, 13 Ohio St. 565;) and admitting further that no insurable interest can exist under a contract which is ab initio void, and not enforceable in law or equity, as it seems is the law, (May, Ins. Sec. 96; Stockdale v. Dunlop, 6 M. & W. 224; Steinback v. Fenning, 6 Eng.L. & Eq. 41; Tuckerman v. Home Ins. Co. 9 R.I. 414; Columbian Ins. Co. v. Lawrence, 2 Pet. 25, 47,)-- still it does not follow that because one of the parties to a policy has no insurable interest it thereby becomes invalid.

Insurance without interest, if included in the same policy with interests which are insurable, does not vitiate the policy except as to the non-existent interest. It remains valid for so much as constitutes a legitimate insurable interest. May, Ins. Sec. 74; Peck v. New London Ins. Co. 22 Conn. 575.

If A J. Perry, therefore, had no insurable interest, Ellathea Perry could still recover to the extent of her interest; and in this case it so happens that if no interest in the land or buildings passed to A. J. Perry under the agreement and subsequent proceeding, all right and title to the whole premises, and so to the whole of the barn insured,...