Zenor v. Hayes

• Decision Date: 23 October 1907
• Citation: 81 N.E. 1144,228 Ill. 626
• Parties: ZENOR v. HAYES.
• Court: Illinois Supreme Court

228 Ill. 626

81 N.E. 1144

ZENOR

v.HAYES.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Circuit Court, McLean County; C. D. Myers, Judge.

Bill by Elijah Zenor against J. Fremont Hayes and the Old Town Mutual Fire Insurance Company, praying that the proceeds of a policy be paid to complainant or expended in the erection of new buildings on the premises. From a judgment of the Appellate Court, Third District, affirming a decree of the circuit court dismissing the bill for want of equity, complainant appeals. Affirmed.

Welty, Sterling & Whitmore, for appellant.

Stone & Oglevee, for appellee.

VICKERS, J.

This is an appeal from a judgment of the Appellate Court for the Third District affirming a decree of the circuit court of McLean county. On the 1st day of April, 1905, Elijah Zenor entered into a written contract for the sale of certain real estate located in McLean county to J. Fremont Hayes, whereby Zenor agreed to conver to Hayes certain real estate upon the payment of $7,000, $500 of which was paid in cash and the balance was to be paid February 1, 1910, with interest at the rate of 5 per cent. per annum. The contract provided that Hayes should have the option of paying $100, or any multiple thereof, at any interest-paying time, and it was also agreed that, if the principal debt should be reduced to $4,000 by payments at any time before February 1, 1910, Zenor should make Hayes a deed and take a mortgage back for the unexpired term to secure the remainder of the purchase money. The instrument contained provisions as to forfeiture for nonpayment of interest and taxes, but there was no provision in it respecting insurance on the buildings. The buildings on the premises, consisting of a barn, house and carriage house, were worth about $3,000, and were protected by an insurance policy in the Old Town Mutual Fire Insurance Company in the sum of $1,100, which had been taken out by appellant, Zenor. The policy was assigned by Zenor to Hayes, and on September 1, 1905, all of said buildings were destroyed by fire. Zenor filed a bill in equity against Hayes and the insurance company, reciting the above facts, together with the averment that Hayes was insolvent, and that the premises without the buildings were scant security for the unpaid purchase money, and prayed for a decree that the $1,100 insurance money be paid to Zenor, or that the same be expended, under the direction of the court, in the erection of new buildings on the premises. The circuit court sustained the demurrer to the bill, and, Zenor electing to stand by his bill, it was dismissed for the want of equity, and that decree has been affirmed by the Appellate Court, and by his further appeal Zenor brings the record to this court for review.

The only question to be considered by this court is whether, under the facts stated in the bill, appellant is entitled to the proceeds of the fire insurance policy or whether they belong to appellee. After appellee made a contract of purchase, paid $500 of the purchase price, and entered into possession of the premises, he thereby acquired an insurable interest in the property. Wood on Fire Insurance, § 317, and cases there cited. Having an insurable interest in the premises, when appellant assigned the policy to appellee, the policy thereafter protected the interest of ...