Clapp v. Union Mut. Fire Ins.

By the policy of insurance and the application to which it refers, Lorrin Miller became a member of the Union Mutual Fire Insurance Company, bound to conform to the requirements of its by-laws, and to pay certain assessments made, or to be made, upon his premium note. In consideration of this, the company undertook to indemnify him, to the extent set forth in the policy, against casualties by fire.

Among the requirements of the by-laws, are those contained in articles 17 and 18, which are as follows:—

“ The applicant for insurance shall make a true representation of the situation of the property on which he requests insurance, so far as concerns the risk and value thereof, and of his title and interest therein. And in case the application is made through an agent, shall be held liable for the representation of that agent.”

*146“ Any mortgagee may insure his interest in any property in his own name, without reference to the mortgagor, in the same manner as insurance is effected on other property; provided the said mortgagee shall procure a certificate from the mortgagor that said property is not insured at any other office.”

The contract is one of indemnity, and the assured must have an interest in the property, or the contract is of course entirely void, as a mere wager. 3 Kent Com. 371.

And the by-laws of the company, and the representations in the application made in pursuance of those by-laws, are part of the contract on the part of the assured, a breach of which exempts the company from their undertaking. Holmes v. Mut. F. Ins. Co., 10 Met. 211. And the defendants have accordingly founded a defence in the present action, upon an alleged non-compliance on the part of the assured, with this agreement to represent truly his title and interest in the property.

The alleged misrepresentation consists in his answer to the inquiry propounded in the application, namely, “ Whose is the property insured ?” To which his answer was “ Lorrin Miller’s.” And in his omission to state, in answer to the question, “ Is the property incumbered ?” that his title was under an execution, and that the right of the judgment debtor to redeem, had not expired.

What were the laws of Vermont, where the property lay,' in regard to the manner and effect of setting off land ori execution, does not appear in the case, but it has been decided there, that the levy of an execution upon an equity of redemption, and a set-off of the same to a creditor of the mortgagor, subject to the incumbrances, will pass his title to such execution creditor, who upon redemption will have the whole title. Collins & a. v. Gibson & a., 5 Vt. Rep. 343.

In Massachusetts, where the interest of a creditor under an extent has been a topic of frequent discussion, it is well settled that upon the completion of the levy, all the defend*147ant’s interest in the land is transferred to and becomes the property of the plaintiff. The creditor is purchaser of the estate for the full value. He has the possession and seizin of it, and may maintain, at his election, either a real action, counting upon his own seizin, or trespass against the defendant, who shall continue his possession after the levy, without the plaintiff’s consent. Langdon v. Potter, 3 Mass. Rep. 215; Gove v. Bazier, 3 Mass. Rep. 523; Wyman v. Brigden, 4 Mass. Rep. 150. And it has there been further decided, that a debtor, after such levy, has not any interest or estate in the land. He is not a free-holder. He has only a possibility or right to an estate, on payment of a certain sum of money. Kelly v. Beers, 12 Mass. Rep. 388. He has no interest that a creditor can attach, although he has an equitable interest that he may assign by way of mortgage. Kelly v. Beers, ub. sup.; Reed v. Bigelow, 5 Pick. 281.

By our revised statutes, indeed, his interest may be attached, in which respect it is like a mere right to receive a conveyance by any contract. Rev. Stat. ch. 184 § 5. Still the character of the estate acquired by the levy is a fee simple ; and its liability to be defeated by a condition subsequent, does not, according to Judge Blackstone, derogate from its quality as a free-hold. 2 Bl. Com. 156.

There can be no doubt, then, that the representation that the premises were “ Lorrin Miller’s,” taken in connection with the additional fact represented, that the same were incumbered with the mortgages to Royee and Carpenter, was “ a true representation of the situation of the property, so far as concerned the risk and value thereof, and of his title and interest therein,” unless his omission to set forth the right of the debtor to redeem the estate from the levy, can be regarded as an omission of a fact material to the risk, and as making the representation, in a legal sense, false. And we think it cannot be so regarded. It surely could not be considered as a misrepresentation in the owner of lands, *148who had incumbered the same himself by mortgages, and who should represent them as being his own property, while at the same time he should state truly the fact of the existence of the incumbrances ; and it would not be the more a misrepresentation, merely for the reason that the premises were incumbered by another, who was at the time the owner, but who had since conveyed the premises to the applicant for insurance, subject to the incumbrances.

The effect of the levy of the execution of Lorrin Miller upon the equity of redemption of John Miller, if valid, was to give to Lorrin.Miller the right to redeem from the mortgages of Royce and Carpenter, and upon such redemption being made, to vest the whole title to the estate in him. Collins & a. v. Gibson & a., before cited. The language of the court in that case is thus: “But as the debt of the plaintiffs took all Gibson’s (the mortgagor’s) right, and as the plaintiffs could not hold at all against Stewart, (the mortgagee,) but their levy gave them the right to redeem from Stewart’s mortgage, when such redemption was made, the whole title would be in the plaintiffs.”

In the present ease, no exception is taken to the validity or sufficiency of the levy, to vest in Lorrin Miller all the title which John Miller had at the date of the levy. Lorrin Miller had, then, according to all the authorities, all the title, subject to the two mortgages.

The right of John Miller to pay the debt and re-vest the title in himself, was in no sense an incumbrance. In point of fact he never exercised it. If he had, no other result could have ensued, as regards the defendants, than the avoidance of the policy, as in cases of alienation of the property insured. The omission to represent the right of John Miller to pay the debt and re-possess himself of the title to the land could work no mischief to the insurance company. The happening of the event could only operate to relieve them of their undertaking of indemnity.

As there is no evidence from which it is necessary to infer *149fraud in this case, the suppression or misrepresentation relied upon must, in order to vitiate the policy, be shown to relate to a matter material to the risk. No attempt is made to point out the materiality of the concealment, and it was evidently not material.

According to the agreement contained in the case, therefore, there must be—

Judgment for the plaintiff.