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terms of the policy, was not ground of forfeiture. The land contract was forfeited, and the vendee therein quitclaimed to the plaintiff. The doctrine that a sale or conveyance of property which increases the interest of the insured is not a change in the interest, title or possession of the subject of insurance within the meaning of the policy was applied. In Excelsior Foundry Co. v. Assurance Co., 135 Mich. 467 (98 N. W. 9, 3 Am. & Eng. Ann. Cas. 707), the insured buildings were upon land held by the insured under land contract. No other interest than that of the insured was mentioned in the policy. One Frank W. Wheeler held the legal title to the premises. To him the insured contracted to sell its interest in the premises and personal property. Something was paid in consideration, but the bill of sale had not been delivered, and there was testimony to the effect that title was not to pass until the bill of sale should be delivered. It was held that, while the authorities are in conflict:
“The weight of authority is that, under a policy like the Michigan standard policy, any material change in the interest of the insured in the property insured will avoid the policy.”
This court in that case repudiated the doctrine that the whole interest of the insured must pass in order to avoid the policy, although in Justice MOORE'S opinion in the case at bar this repudiated doctrine is restated in a quotation from the opinion in Excelsior Foundry Co. v. Assurance Co. apparently with approval.
There is a manifest distinction between the cases in which the question is upon the title of the assured at the time the policy was issued—whether it is, within the meaning of the policy, the unconditional, sole, title-and cases where a change in interest, title, or possession is the ground of forfeiture relied upon. The insuring company may be satisfied with the risk it assumes in its policy, and may yet insist, and in the Michigan standard policy does insist, that with a change of interest or title or possession its liability shall cease. Being satisfied with the risk originally assumed, it may reasonably be held that, if the interest of the assured in the property insured increases, the moral hazard is lessened, rather than increased, and that a policy is not avoided because the assured has acquired an interest in the property which was outstanding when the policy was issued. It is in pursuance of the plain terms of the contract, and is logical to hold (it would be illogical to hold otherwise), that when the assured loses such interest in the property as he had when the policy was issued the policy is avoided. One has only to examine our own decisions and the authorities cited and approved in Excelsior Foundry Co. v. Assurance Co. to appreciate the reason for the condition in the policy and for its enforcement.
It is clear that in the case at bar as to the assured the policy was avoided when he divested himself of all interest in the insured property. He could thereafter assign to plaintiffs no actionable interest in the contract, either before or after the fire occurred.
It is said, however, that the plaintiffs are unaffected by the change of title of the assured because the conditions in the policy are not binding upon them. The clause in the Michigan standard policy relied upon is not free from ambiguity. The cases cited in the opinion of Mr. Justice MOORE hold, in effect, that by virtue of the mortgage clause in the body of the policy the interest of the mortgagee is free from all conditions, except such as are repeated, directly or indirectly, in specifying the mortgagee's interest. The conditions in the policy which, under a similar contract, have been held to be binding upon the assured but not on the mortgagee, are conditions relating to the time for proving loss and beginning suit (Queen's Ins. Co. v. Building Ass'n, 175 Ill. 115 [51 N. E. 717]); relating to the commencement of foreclosure proceedings (Christenson v. Insurance Co., 117 Iowa, 77 (90 N. W. 495, 94 Am. St. Rep. 286]); relating to additional insurance (Boyd v. Insurance Co., 25 Wash. 447 [65 Pac. 785, 55 L. R. A. 165]; Senor v. Insurance Co., 181 Mo. 115 [79 S. W. 687]); relating to alienation of the property without consent of the insurer (East v. Insurance Ass'n, 76 Miss. 697 [26 South. 691]; Oakland Home Ins. Co. v. Bank of Commerce, 47 Neb. 717 [66 N. W. 646, 36 L. R. A. 673, 58 Am. St. Rep. 663]; Edge v. Insurance Co., 20 S. D. 190 (105 N. W. 281]; Welch v. Assurance Co., 148 Cal. 223 [82 Pac. 964, 113 Am. St. Rep. 223, 7 Am. & Eng. Ann. Cas. 396]); relating to state of title of the insured when policy was issued, under a somewhat different provision as to the mortgagee (Bacot v. Insurance Co., 96 Miss. 223 [50 South. 729, Ann. Cas. 1912B, 262]). In Massachusetts the form of standard policy relating to mortgagees is:
"If this policy shall be made payable to a mortgagee of the insured real estate, no act or default of any person other than such mortgagee or his agents, or those claiming under him, shall affect such mortgagee's right to recover in case of loss on such real estate.”
It has been held that the mortgagor's conveyance of his equity of redemption does not affect the right of the mortgagee to recover under such a policy. Whiting v. Burkhardt, 178 Mass. 535 (60 N. E. 1, 52 L. R. A. 788, 86 Am. St. Rep. 503). But it is held (Union Institution for Savings v. Insurance Co., 196 Mass. 230 [14 L. R. A. (N. S.) 459, 13 Am. & Eng. Ann. Cas. 433]), that the policy creates a liability of the insurer dependent in part upon the performance of certain acts by the owner of the property, after the fire, in reference to the claim. The insurer has an option to rebuild or repair structures, and does not undertake to pay until the amount of the loss is determined by arbitration unless agreed upon or arbitration is waived. By implication the mortgagee, the mortgagor failing, has a right to make a statement of loss and ask for an arbitration. Failing to do so, he has no right to sue upon the policy, which is construed to preserve to the insurer certain rights notwithstanding the mortgagee clause in the policy.
According to its provisions, the Michigan standard policy may be canceled at the request of the insured. It provides for paying a proportion only of a loss where there is concurrent insurance; that the insurer shall not be liable for a loss occasioned by invasion, insurrection, riot, or civil war, or by theft, or by neglect of the insured to use all reasonable means to save and preserve the property; that if a fire occur the insured shall give immediate notice in writing, etc., for arbitration in case of disagreement as to the amount of the loss; that no suit or action on this policy for the recovery of any claim shall be sustainable in any court until after full compliance by the assured with certain requirements, nor unless begun within 12 months next after the fire. I have mentioned some of the provisions of the contract which must be interpreted and construed as a whole, and, in this case, must be interpreted and construed also with reference to the mortgagee or "loss payable" indorsement. Its proper construction, as affecting the questions here involved, seems to me to be that, when no conditions are directly coupled with the loss payable rider or indorsement, the policy will not be avoided, as to the mortgagee or other lienor, by any breach of its conditions on the part of the insured. On the other hand, the liability of the insurer will not be increased or changed because the loss is made payable to some one other than the insured. It does not become obligated to pay the mortgagee a sum of money in the event of a loss. The undertaking of the insurer must still be measured by the terms of the policy. It may restore the destroyed property, insist upon notice of the fire and proofs of loss, in so far as the mortgagee can comply with the conditions of the policy, may insist upon arbitration and that suit upon the policy shall be begun within one year next after the loss. It is not intended to here state inclusively and exclusively the rights of either the insured or the mortgagee, but to illustrate only. The construction indicated is in line with the authorities which have been referred to. If the case presented was one where the insured had sold his property to a third person, the construction indicated would sustain the theory that the policy as to the plaintiffs is not avoided, and that they may sue upon it. The facts are, however, that the insured did not sell the property to a third person, but in his breach of the conditions of the policy, a breach which avoided it as to him, he dealt with the plaintiffs. Plaintiffs are in the position of saying that, because not repeated in the indorsement made in their interest, they are unaffected by certain conditions of the policy or by breaches of those conditions; that therefore those conditions may be breached in their favor, by their aid. I think they cannot maintain this position, and that, having assisted in rendering the policy void as between the insured and the insurer, it cannot be held valid as to them. I appreciate that this ruling would apply in case an insured mortgagor, without the assent of the insurer, conveyed his equity of redemption to the mortgagee, whose interest was protected by the policy. I know of no good reason why it should not so apply. He is no longer a mortgagee, but has become an owner of the property. If he insured it as owner, he would be bound by the conditions in his policy. No reasonable construction of the con