The Clay Fire v. Wusterhausen
| Decision Date | 30 September 1874 |
| Citation | 1874 WL 9239,75 Ill. 285 |
| Parties | THE CLAY FIRE AND MARINE INSURANCE COMPANYv.ERNST WUSTERHAUSEN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. THEODORE D. MURPHY, Judge, presiding.
Messrs. BRANDT & HOFFMANN, for the appellant.
Mr. PHILLIP STEIN, for the appellees.
This was covenant, by appellees against appellant, on a policy of insurance.
The policy contains this condition: “If any change takes place in the title or possession of the property, whether by sale, legal process, judicial decree, voluntary transfer, or conveyance, or the policy is assigned, without consent of the company indorsed hereon, or if the assured is not the sole and unconditional owner of the property insured, then, and in every such case, this policy shall be null and void.”
Appellant pleaded, among other pleas, “that after the making and delivery of said policy of insurance, set out in the declaration, and before the happening of the loss therein set out, to wit, on September 1, A. D. 1873, to wit, at the county aforesaid, a change took place in the title of the property thereby insured, by voluntary transfer, and without the consent of the defendant, and said policy of insurance thereby then and there became and was, and has ever since been, and now is, null and void,” etc.
Appellees interposed a demurrer to the plea, which was sustained by the court, and this is the first error insisted on in the argument.
We think the plea was clearly defective, and the demurrer properly sustained. It is an elementary rule of pleading that “every plea should be so pleaded as to be capable of trial, and, therefore, must consist of matter of fact, the existence of which may be tried by a jury on an issue, or the sufficiency of which, as a defense, may be determined by the court upon demurrer or matter of record, which is triable by the record itself.” 1 Chitty's Pleadings (7th Am. ed.), 573.
What constitutes “change of title by voluntary transfer?” The law does not affix such definite and precise meaning to these words that there can be no question as to the steps by which the transfer was effected, or the character of the title vested in the transferee; and it is manifest they are merely the expression of a conclusion, involving both questions of fact and of law, and an issue thereon could not, therefore, be submitted to a jury.
In reply to the suggestion that appellees, in their declaration, alleged, in the language of the policy, that no change in the title had...
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