Treadway v. Hamilton Mutual Insurance

Sanford, J. The defendant is a mutual insurance company, incorporated by the legislature of Massachusetts. By the reception of his policy the plaintiff became a member of that corporation, and, as such member, was bound to take notice of and observe its by-laws. Angell on Ins., § 10. Upon the face of the policy also, the conditions and regulations of the charter and by-laws of the company are declared to be a part of the contract of insurance. The sixth article of the by-laws, provides that the application upon which a policy is founded shall be held to be a warranty on the part of the insured, and as absolutely a part of said policy and of the contract of insurance as if it were actually incorporated therein in full. The twelfth provides that “ any policy issued by this company shall be void, unless the true title and interest of the assured be expressed in the proposal or application for. insurance, and unless all incumbrances and the amount and nature thereof be therein disclosed.” And the thirteenth further provides that “ unless the applicant for insurance shall make a correct de [70] scription and statement of all facts required, or enquired- for, in the application, and also all other facts material in reference to the insurance or to the risk or the value of the property, the policy issued thereon shall be void.” In view of these explicit provisions of the policy and of the by-laws, it is clear that the nonsuit was rightly ordered by the superior court. To the first inquiry contained in the plaintiff’s application— to wit: “ Whose is the property tobe insured, and where situated ? — the plaintiff replied: “A brick building on W ater street in the city of Norwich owned by me.” To the fourteenth inquiry — to wit: “ If the property is incumbered, state for how much, and to whom; state the true title and interest;” the plaintiff replied: “To several; about six thousand dollars.” The testimony detailed in the motion shows that before the making of his application the plaintiff had incumbered the property to the amount of thirteen thousand two hundred and thirty-one dollars; and then had conveyed all his remaining interest in it to his brother, J. W. Treadway, by an absolute deed. So far therefore from having in his application made a correct description and statement of all facts required or enquired for therein, so far from having stated his true title to and interest in the property, as required by the conditions of the policy and the by-laws of the company, the plaintiff’s answers were absolutely false, and he had no insurable interest in the property which a court of justice could recognize or protect. It is true that the mortgages, beyond the $6000, as well as ' the absolute deed, appear to have been given without consideration, and with intent to defraud the plaintiff’s creditors. But, as between the parties, those conveyances were valid, and none but creditors and bona fide purchasers could avoid them. The plaintiff had no right to the property which he could enforce, either in equity or at law. He had conveyed the last vestige of his interest to his brother. The plaintiff’s explicit statement in regard to this important fact, expressly inquired for by the defendant, was false; a misrepresentation which was agreed in the policy, and declared by the by-laws, to be material, and an adequate cause to avoid the policy.- [71] . The deed to J. W. Treadway was indeed made and placed on record without his knowledge, and consequently without his express assent, but the law presumes his assent, because the conveyance was prima facie beneficial to him ; and the plaintiff’s attempt to prove his dissent clearly failed. The evidence discloses the grantee’s reluctance to participate in the plaintiff’s fraudulent attempt, but unfortunately it evinces also the fact that that reluctance, so creditable to the grantee, was finally overcome, and that he ultimately assented to receive and hold the title to the property, and reconvey it when the plaintiff should desire. We need not decide whether the defendants, (being a foreign corporation,) had, like our own mutual insurance companies, a lien upon the property insured for the unpaid premium or not, because, as already observed, we think that, under the explicit stipulations of the contract between these parties, the misrepresentation above mentioned rendered the policy void; and because, upon the plaintiff’s own showing, he had not, either at the time of the issuing of the policy or of the occurrence of the loss, any legal or equitable interest in the property insured; either of which objections is fatal to his claim. Upon these points we prefer to place our determination of the cause, leaving for future consideration, when the occasion shall require it, all the other questions so elaborately and ably argued at our bar. The judgment of the superior court must be affirmed. In this opinion the other judges concurred. Judgment affirmed.