Hodges v. . the Tennessee Marine and Fire Insurance Company

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 418 The determination of the judge in allowing the amendment of the pleadings was within his discretionary power, and is not the subject of review in this court. *Page 419 The remaining question in the cause relates to the existence of an insurable interest in Slamm at the time of the assignment of the policy to Hodges and of the loss. If such an interest existed, then the plaintiff's recovery can not be disturbed. Upon the evidence there is no doubt of the following facts: that at the time when the insurance was effected, September 1, 1848, Slamm was the owner in fee of the premises insured: that on the 4th of September, 1848, he conveyed the premises to Hodges by a deed absolute upon its face, but intended to operate as a mortgage, and that upon the same day he transferred the policy to Hodges as collateral security; and that this transfer was made by the assent of the company. If there is no rule of law forbidding us to take notice of the fact that the deed was intended as a mortgage, then beyond all question, Slamm as the owner of the equity of redemption in the premises had an interest in the insurance which had been effected by him as the owner of the fee, and the assignment with the company's assent transferred this interest to Hodges as collateral security, and he may upon the ground of the same interest sustain the recovery which has been had in this case. The question then, taking it most strongly against the plaintiff, is, whether in equity Slamm might have a bill to redeem against Hodges, notwithstanding the deed was absolute upon its face. Webb v. Rice, 6 Hill, 219, does not conflict with the proposition that such a bill might be maintained. It only professes to decide that at law unwritten evidence is inadmissible to show that a deed was intended as a mortgage. From an early day in this state the admissibility of such evidence had been established as the law of our courts of equity, and it is not fitting that the question should now be re-examined. Upon the authority of Strong v. Stewart, 4 J.C. 167; Clark v.Henry, 2 Cow. 332; Whittick v. Kane, 1 Paige, 206; VanBuren v. Olmsted, 5 Paige, 10; McIntyre v. Humphrey's 1Hoff. 34, with which *Page 420 agree Taylor v. Little, 2 Sumner, 228, Jenkins v.Eldredge, 3 Story, 293, in all which cases except Clark v.Henry, the point was directly before the court, we think that the plaintiff's recovery in this case ought to be sustained.