Thompson v. Gearheart

• Decision Date: 20 September 1923
• Citation: 119 S.E. 67
• Parties: THOMPSON, Sheriff, et al. v. GEARHEART.
• Court: Virginia Supreme Court

119 S.E. 67

THOMPSON, Sheriff, et al.

v.GEARHEART.

Supreme Court of Appeals of Virginia.

Sept. 20, 1923.

Appeal from Circuit Court, Giles County.

Action by F. W. Gearheart against W. H. Thompson, Sheriff and Administrator, and others. From a judgment for complainant, defendants appeal. Affirmed.

W. B. Snidow, of Pearisburg, for appellants.

Jackson & Henson, of Roanoke, and Williams & Farrier, of Pearisburg, for appellee.

WEST, J. F. W. Gearheart sued W. H. Thompson, sheriff of Giles county, and, as such, administrator of George W. and Carrie Champ, deceased, L. J. Thorne, R. T. Thorne, and Thomas B. Champ, and Willie Champ, the last two being infants under the age of 21 years, and recovered $800 against W. H. Thompson, sheriff, and administrator of Geo. W. and Carrie Champ, deceased. The case is here upon an appeal from that decree.

The parties will be designated as complainant and defendants with respect to their positions in the trial court.

By her last will Nancy Champ devised to her son, Geo. W. Champ, for his life, a house and lot in the town of Narrows, Va., and at his death to his children. On April 21, 1903, George W. Champ and wife sold and conveyed this lot to F. W. Gearheart in fee simple with covenants of general warranty. George W. Champ died on March 1. 1914, leaving two children, Thomas B. Champ and Willie Champ. Upon demand Gearheart refused to deliver possession of the property to the remaindermen, and they recovered it from him in an action of ejectment. Gearheart had the buildings on the lot insured in his own name, and during the pendency of the action in ejectment they were totally destroyed by fire. Gearheart collected the insurance.

After Gearheart was ousted, an action of assumpsit was instituted against him by the two children for rent for the property from the death of George W. Champ, the life tenant, and they recovered, at the rate of $10 per month, in the sum of $216.66. The complainant contends that the last-mentioned suit was also prosecuted for the recovery of the insurance collected by him. The defendants assert that the case was submitted simply upon the question of the amount of the rent due.

The pending suit was brought to recover on the warranty in the deed from George W. Champ and wife to F. W. Gearheart. The defendants set up in their answer their claim to the insurance money collected by Gearheart, after the title to the property was vested in the remaindermen. The court, without allowing any credit on account of the insurance, adjudged and decreed that Gearheart was entitled to have refunded to him the purchase price paid by him, withinterest from the death of George W. Champ, the life tenant, and that Gearheart recover the same, to wit, $800, with interest from March 1, 1914, until paid, of W. H. Thompson, sheriff, and, as such, administrator of George W. Champ and Carrie Champ, deceased.

The defendants rely upon four assignments of error. The first, third, and fourth assignments are not urged by the defendants, and we deem it unnecessary to discuss them, as we find no merit in them.

The second assignment of error on which defendants confidently rely, is that the court erred in not decreeing the money collected as fire insurance to Thomas B. Champ and Willie Champ.

By consent the record in the case in assumpsit was filed as a part of the evidence in this case. It appears therefrom that the bill of particulars filed with the declaration was as follows:

"This action is brought to recover an amount of insurance on the buildings on lots owned by said Thomas B. Champ and William Champ, who are infants, in the amount which was collected by the defendant in this case, and which ought to have been paid to the plaintiffs, $750; and for the recovery of rent due for the use and occupancy of said land and buildings thereon situated, from March, 1914, to December 22, 1915, at the rate of $10 per month."

The record further shows that the case was submitted to the court on an agreed statement of facts, from which it appears that the defendant had collected $750 insurance on the property, and that the buildings were burned after the death of George W. Champ. Besides, the judgment of the court recites that the case was submitted upon the agreed statement of facts, which involved the right of the plaintiffs to recover the insurance in that suit, and the judgment being for rent only, it is clear that the court rejected their claim for the insurance.

The plaintiff contends that the agreed statement of facts constitutes a part of the record" while the defendants insist that the "record" consists only of the declaration, bill of particulars, and the judgment; that the agreed statement of facts not being a part of the "record, " and the answer denying the allegation in the bill that the question of the right of the infants to the insurance money was adjudicated in the action at law, it cannot be said that the "record" here shows that question is res adjudicata.

We need not pass upon this question, for if it be admitted, as contended by the defendants, that the right of the infants to the insurance has not been heretofore adjudicated, and must be determined in this case, we are of the opinion that they cannot recover any portion of the insurance collected by Gearheart.

The life tenant was under no obligation to insure the property for the benefit of the remaindermen. Each of them had an insurable interest in the property, but a policy in the name of one could not cover the interest of the other. The nature and effect of an insurance contract is to indemnify the insured against loss or damage, and not some one else who is not a party to the contract; nor has such other party any lawful claim upon the amount realized by the assured under the policy.

If, as seems probable, Gearheart succeeded in collecting from the insurer money which he was not entitled to demand under his policy contract, the remaindermen were not entitled to any portion thereof.

In the case of Harrison v. Pepper. 166 Mass. 288, 44 N. E. 222, 33 L. R. A. 239, 55 Am. St. Rep. 404, the Supreme Judicial Court of Massachusetts, considering a...