Wiley v. London & Lancashire Fire Ins. Co.

• Citation: 89 Conn. 35,92 A. 678
• Court: Supreme Court of Connecticut
• Decision Date: 21 December 1914
• Parties: WILEY v. LONDON & LANCASHIRE FIRE INS. CO.

92 A. 678

89 Conn. 35

WILEY

v. LONDON & LANCASHIRE FIRE INS. CO.

Supreme Court of Errors of Connecticut.

Dec. 21, 1914.

Appeal from Superior. Court, Fairfield County; Howard J. Curtis, Judge.

Action by Anna C. Wiley against the London & Lancashire Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles Welles Gross, of Hartford, for appellant.

Charles D. Lockwood, of Stamford, for appellee.

WHEELER, J. This action is brought upon a policy of fire insurance of the standard form.

Aside from one of the corrections of the finding asked for, the main question in the case is raised by the defendant's special defense, which alleges that after the making of the contract, and before the fire, the plaintiff transferred by deed the subject of the insurance in violation of the provision of the policy reading:

"The entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured or otherwise."

The burden of proving the breach alleged —a condition subsequent—was on the defendant. Benanti v. Delaware Ins. Co., 86 Conn. 15, 17, 84 Atl. 109, Ann. Cas. 1913D, 826. And the construction of this provision must be made under a rule favorable to the assured. Richards on Ins. (3d Ed.) p. 347.

The plaintiff had made an apparent alienation by deed, and she met the defendant's defense of alienation by claiming: (1) That there had never been a delivery of the deed; (2) that, simultaneously with the execution of the deed by the plaintiff, the grantee named therein had executed a deed back to the plaintiff, and hence the alienation was nominal, not real, and did not constitute a violation of the alienation clause.

In order to determine whether the finding by the court that there had been no delivery of the deed from the plaintiff to Miss Shaw should be corrected, and to decide the legal questions raised by the reply, we must have before us the salient facts surrounding the execution of this deed. The plaintiff, Mrs. Wiley, owned a lot of land in Greenwich, with a valuable dwelling thereon, upon which the policy in suit was issued. She then, and up to the fire, owned personal property in this dwelling of the value of $20,000. She was harassed for the payment of a bill of $354, which the creditor, on September 8, 1911, agreed to reduce to $279, provided a monthly payment of $50 was made. Mrs. Wiley paid $50 on September 8th, and in December the creditor demanded the entire bill and threatened to sue if it was not paid. Mrs. Wiley paid on December 7th $50, and, fearing that her place would be attached, she consulted an attorney, and he advised that she procure a third party to whom to deed the place so as to avoid an attachment. She left the matter to him to act according to his discretion. On December 21st she sent the creditor $50, leaving a balance unpaid of about $129. Her attorney, in pursuance of the advice given and the plan adopted, prepared a quitclaim deed from Mrs. Wiley to an unnamed grantee and a quitclaim deed from this unnamed grantor to Mrs. Wiley, with the intention of having them executed, and the first forthwith recorded, and the second held for subsequent record. Upon his advice Mrs. Wiley brought to his office a Miss Shaw, to whom he explained the transaction and its purpose, and requested her to act as grantee in the first-named deed and grantor in the second. Upon his assurance that no liability would accrue to her, she assented to his request. Both deeds were executed and were practically simultaneous transactions, although the deed from Mrs. Wiley to Miss Shaw was executed first. No consideration passed for either deed. Miss Shaw never entered into possession of the premises and the plaintiff continued in their possession until after March 8, 1912. The plaintiff did not intend to dispose of or convey her title, and Miss Shaw did not desire to acquire any title or interest to the property described in the quitclaim deed. The intention of the attorney was to make it appear that the plaintiff did not own the property, and thus to prevent the creditor attaching, and it was his purpose and that of Mrs. Wiley to withhold from record the deed from Miss Shaw to Mrs. Wiley until the transaction between the creditor and Mrs. Wiley was settled. The attorney, pursuing his own plan, caused the deed from Mrs. Wiley to Miss Shaw to be forthwith recorded. He placed the other deed in his safe and forgot about it until March 4, 1912, and on the next day he caused it to be placed on record. On December 28, 1911, the plaintiff's dwelling burned. The defendant subsequently tendered to the plaintiff the premiums paid, and notified her that the policy issued by it to her had been rendered void prior to the fire for breach of its alienation clause.

The trial court found that there had never been a delivery of the deed from Mrs. Wiley to Miss Shaw, but found that there had been a delivery of the deed from Miss Shaw to Mrs. Wiley.

1. Our first question is to determine the correctness of the finding of a nondelivery of the first-named deed. We regard this finding as a conclusion of fact from the subordinate facts found. The delivery of the deed to, and its acceptance by, the grantee are essentials of every valid conveyance of real estate. Alsop v. Swathel, 7 Conn. 500, 502. Delivery is a matter of intention proved by act or word. Similarly, proof of acceptance may be by any act or expression which shows an intention on the part of the grantee to assent or consent to the grant. Moore v. Giles, 49 Conn. 570, 573. Mrs. Wiley's sole purpose in this entire transaction was to make a colorable transfer of the title of record, and so make it appear that Miss Shaw, and not she, was the record owner in order to prevent attachment of her property by the creditor. Her intention was not to vest a permanent title in Miss Shaw, but merely a title sufficient to prevent an attachment. To this end she purposed to have Miss Shaw give a deed back of the property Mrs. Wiley deeded her. Miss Shaw assented to the plan, and the scrivener carries out the plan by recording the one deed and retaining the other. That the scrivener was the attorney of Mrs. Wiley did not prevent his acting in relation to these deeds as the agent of both grantor and grantee. As such agent, his possession and control of the executed deeds for the purposes named in the plan was the possession and control of the respective grantees in the deeds. These circumstances unmistakably establish an intention on the part of Mrs. Wiley to deliver the deed to Miss Shaw. The subsequent recording of the deed is not conclusive, but is prima facie proof of Mrs. Wiley's intention to deliver the deed to Miss Shaw. Devlin on Deeds, § 292.

This case is not left to rest upon an unrebutted presumption; the finding is that the recording was in pursuance of Mrs. Wiley's predetermined intention. The recording of the deed with the intent to vest in Miss Shaw the record title was a legal delivery of the deed by Mrs. Wiley. Moore v. Giles, supra. When the deed went into the possession of the scrivener for the purpose of putting it upon record, and the grantee assented to this, it passed out of Mrs. Wiley's control. And when it was placed on record there were only two ways in which she might again secure the record title—by conveyance from Miss Shaw, or by a judgment. When Miss Shaw, assented to the plan, a part of which was the leaving of the deed to her with the scrivener for record, she manifested a clear intention to accept the deed. So, in the execution and delivery of the deed back to Mrs. Wiley, she by this act manifested an intention to accept the deed to herself (Gould v. Day, 94 U. S. 405, 412, 24 L. Ed. 232; Creeden v. Mahoney, 193 Mass. 402,...