Virginia Fire & Marine Insurance v. Feagin Bros.

Jackson, Justice. 1. Is the instrument such an alienation of the property as, under our Code, section 2807, defeats the recovery under the policy? We' think that it is not. Probably, for certain purposes, the title passed — the mere legal title — but it passed to a trustee for the use of certain parties, and among them the assured; really to secure a debt of his and account to him. Whilst, therefore, there might have been a recovery in ejectment by the trustee for the purposes of a trust, as ruled on a somewhat similar paper in 60 Ga., 434, still the equitable title — the real title — and the possession, with rents and profits, remained in the assured, who still held an insurable interest in the property. Substantially the conveyance amounted to a security by the assured to pay a debt of theirs, and then the balance to them, and a reconveyance was to be made to them if they paid the debt. It is not such an absolute alienation as voids the policy. The Code declares that an alienation voids it, but the “ creating a lien on the property does not void.” In one sense, every mortgage is an alienation, and we have held that upon an equitable mortgage, or papers _ which make-it, there may be recovery in ejectment; yet in truth and at the bottom it is but creating a lien. The spirit and reason of the law in respect to insurance is, that the assured must not so alienate the property as to make the insurer trust to another to take care of the property instead of the man with whom he bargained and whom he was willing to trust. Code, §2807. 2. We think it immaterial that suit was brought in the name of the assured for the use of the person to whom the policy, by consent of the insurer, was to be paid. If improperly brought, it was amendable, and could have proceeded in the name of the real party to whom by the transfer it was made payable. See Wilson vs. First Presbyterian Church of Savannah, 56 Ga., 554. 3. Proof of loss was also made by the original assured and to this there is also objection; but the fact is that he [520] was still in possession, and it matters little whether it was done by the party to whom the loss was payable, or his agent in possession of the property. 4. It seems to ns also that there is sufficient prima facie evidence of the relative value of each tenement in that the agent of the company inspected both tenements, and agreed to the value of each — one at one thousand and the other at fifteen hundred dollars. So that there seems to be no real merit in the ground that there was no evidence how much each tenement was worth as compared with the other. 5. It is true that the record shows that some apartments were occupied as bar-rooms, and for other immoral purposes, at the time of the fire. Undoubtedly such use, if unknown to the assured, and unprovided for in the rate of insurance, would vitiate the policy; but it seems clear, from the evidence, that the apartments were so used when the agent of the company first inspected them, and when the policy was annually renewed afterwards; and further, that the rate charged was four per cent., whereas for ordinary property it would have been one and a half. Evidently the agent knew the dangers of the risk, and' charged proportionately. 6. In view of all the facts, we are of the opinion that substantial justice has been done — that the verdict is supported by evidence and law — -that no legal quibbles should be allowed to defeat a recovery against these companies when no substantial defense is put up by them — that in this case no such defense has been set up and sustained, and the verdict ought to stand. Judgment affirmed.