DE ARMAND .,. HOKE INS. 00.
w: D. Michigan.
FIRE INSURANCE-INTEREST OF AsSURED-OWNERSHIP.
A clause in a policy of fire insurance avoiding the policy if the "interest of the assured in the property" is not truly stated, must be construed as referring to the substantial ownership, and to the bare legal title.
Motion to Set Aside Verdict, and to enter judgment for defendant. The opinion states the facts. Edward Bacon, for plaintiff. L. D. Norris, for defendant. SEVERENS, J. The plaintiff in this case, being the owner of certain real estate at Buchanan, in Berrien county, whereon was situated a building, executed to one Reynolds a mortgage, in the form common in this state, to secure a debt he owed to the latter, and afterwards, having become a resident of Kansas, he executed a warranty deed, likewise in usual form, to the mortgagee, who resided at Buchanan, the deed containing an exception of the mortgage in the covenant of warranty. There was an attempt, by parol, to impress upon this deed a trust to sell, and there is no doubt that, in point of fact, the deed was made with the intent to enable the grantee to sell the land, realize the mortgage debt, and turn over the surplus to the grantor. Reynolds was all the while renting the property as agent of the plain. tiff, his original mortgagor. In this condition of affairs Reynolds, acting professedly as agent for the plaintiff in the transaction, ef· fected the insurance in question. The policy runs to the plaintiff, and describes the property insured as his, and contains a clause de· claring that "if the interest of the assured be any other than the en· tire, unconditional, and sole ownership of the property, for the use and benefit of the assured, it must be so represented to the company, and so expressed in the written part of the policy, otherwise the pol. icy shall be void;" and also declares that "if the interest of the assured in the property, whether as owner, mortgagor, or otherwise, be not truly stated, the policy shall be void." The los8, if any, was made payable to "Reynolds, as mortgagee, or as his interest may appear." The situation of the title was stated by Reynolds to the defendant's local agent at Buchanan, who negotiated the insurance at the time it was made. The building having been lost by fire, this action was brought, and on the trial my predecessor, the district judge, directed a verdict for the plaintiff for the amount of the loss, reserving leave to the defendant to move for a new trial, or to enter a verdict for the defendant. Some other matters, not stated, furnished the basis of some minor points disposed of on the hearing of the present motion, and need not now be repeated. This motion, which is upon an agreed
statement of facte, ie to eet aside the verdict, and to enter the verdict and judgment for the defendant. Upon the hearing two questions were reserved for consideration: (1) Whether the def:lcription in the policy of the interest of the plaintiff in the property thereby insured was true, and in conformity with the requirements thereof, in respect to accuracy of statement in thai particular; and (2) if not, whether the defendant was estopped from relying on such misdescription by reason of the fact that the truth was made' known to its local agent at the time of the insurance. What was the condition of the title at the date of the insurance? The parol trust was inoperative. The deed, having no independent consideration, operated simply to pass the legal title. The effect of the mortgage and deed was equivalent to that of a common-law mortgage. Once a mortgage always a mortgage, until some new transaction occurs founded upon an independent consideration, is a maxim of equity. At law the mortgagor had become entirely divested of the title before the insurance,and at that time it waS in Reynolds, the mortgagee. On the argument I was strongly impressed that this was fatal to the description of the interest insured, bnt further consideration has led to a different conclusion. In equity the property remained unaffected by the deed, and in all substantial particulars it remained that of the mortgagor. He was entitled to its value, sub· ject to the mortgage. l'his particular loss was his, and not that of Reynolds. In the then state of things the property could not have been insured by Reynolds as his. The case of Clay Fire Ins. Co. v. Huron Salt d; Lumber Co., 31 Mich. 346, is an express authority to that effect. In strictly technical language, having reference to the legal title, this property was not that of the insured, but in every real and substantial view it was his, and in the common acceptation would be so regarded. The question is, then, to what kind of interest does the policy refer in exacting a correct statement thereof? Is it to the strictly legal title, or is it to the substantialownership,the absolute right in the property? The authorities are clear to the effect that it is to the essential, rather than to the technical, interest that such language in the policy relates. Farmers' Mut. Fire Ins. Co. v. Fogelman, 35 Mich. 481; Clay Fire, etc., Co. v. Huron Salt, etc., Co., 31 Mich. 346; Wood, Ins. § 151; Hough v. City Fire Ins. Co., 29 Conn. 10. I am of the opinion, therefore, that the policy correctly describes the insured property as that of the plaintiff, that the verdict was properly directed in his favor, and that the motion must be denied.
WITTEMORE V. MALCOMSON.
and others v.
(OVrcuit Oourt, IJ. New JeJr8ey, September 13, 1886.)
PLEADma-NuL TIEL RECORD-CoNCLUSION-ERROR OF FORM.
A plea of nul tiel record should conclude with a "verification," and not "to the country;" but such an error is one of form, and is therefore, under the present practice. amendable. A plea to the jurisdiction is a plea in abatement; and where the defendant has admitted the jurisdiction or waived it by a plea in bar to the action, he cannot subsequently plead in abatement. Such a plea must be supported by a special affidavit. There can be no averment in pleading against the validity of a judgment; and therefore no matter of defense can be pleaded which existed prior to its recovery.
SAME-PLEA TO JURISDICTION-ORDER OF PLEADING-AFFIDAVIT,
SAME-AcTION ON JUDGMENT,
Debt. Motion to strike out pleas. W. H. Bradley, for plaintiffs. Joseph A. McCreery, for defendant.
WALES, J. This is an action of debt on a judgment recovered by the plaintiffs, citizens of New York, against the defendant, a citizen of New Jersey, in the circuit court of the United States for the Southern district of New York. The pleas are (1) nul tiel record; (2) that one or both of the plaintiffs are not citizens of New York, but are l'esidents and citizens of New Jersey; and (3) that this court ought aot to take cognizance, etc., because "the alleged claim sued upon in the said action in the Southern district of New York was a void and invalid claim under the laws of the state of New Jersey, and such I:suit was commenced in the state of New York to evade the laws of the state of New Jersey. and deprive one of her citizens of the benefit of such laws by obtaining a judgment in a foreign court." The defendant makes affidavit that these "pleas are not intended for the 'purpose of delay, and he verily believes he has a just and legal defense." The pleas are objected to as being hregular in form, insufficient, frivolous, and void. The first plea erroneously concludes to the country, instead of with a verification. The issue tendered by this plea is whether there is such a record as the one declared on, and this is an issue to be determined by the court on inspection, and not by the jury. By section 1 of article 4 of the constitution of the United States full faith and credit must be given, in each state, to the judicial proceedings of every other state. Congress has, by the power conferred on it by the same article, prescribed the manner in which such proceedings shall be proved, (Rev. St. § 905,) and it is the province of the court, and not that of the jury, to decide when that proof is sufficient. The error, however, being a matter of form, and subject formerly to a special demurrer, is, under the present practice, amendable.
The objections to the second plea are more substantial. This in effect is a plea. in abatement denying the jurisdiction of the court. and should have been pleaded first in order. The defendant, having ad. mitted jurisdiction or waived it by a plea in bar to the action, cannot subsequently plead in abatement. This would, if allowed, violate the established order of pleading, and produce confusion. 1 Chit. PI. 425; Gould, PI. 226; Evans v. Davenport, 4 McLean, 574; Smith v. Kernochen, 7 How. 216; Sheppard v. Graves, 14 How. 509; Spencer v. Lapsley, 20 How. 267; Gause v. City of Clarksville, 1 Fed. Rep. 359. The opinion of the court in Sheppard v. Graves gives a striking illustration of the mischiefs that would be caused by a departure from the orderly method of pleading. In the case at bar the plea is unsupported by a special affidavit of the facts on which it is drawn. Such affidavit is necessary to enable the court to judge of the probable truth of the plea, and to ascertain whether it is made in good faith, or only for the purpose of delay. 1 Chit. PI. 452; 2 Chit. PI. 459. The question of jurisdiction must be first tried and disposed of before considerIng the other pleas. The third plea is inadmissible. A judgment rendered by a court having jurisdiction of the cause of action, and of the parties to it, cannot be impeached by evidence of facts or circumstances relating to the transactions on which such judgment is founded. It is a maxim in law that there can be no averment in pleading against the validityof a judgment, and therefore no matter of defense can be pleaded which existed prior to its recovery. 1 Chit. PI. 354, 481. The effect of this plea would be to open the judgment, and retry the original cause of action on its merits, and thus lead to indefinite litigation, which it is the policy of the law to prevent. Such pleading wrong, and incapable of amendment. But this cause not being at issue, and it being ,!ithin the discretion of the .court to allow amendments in pleading for the ance of justice, the defendant may have leave to amend the first two pleas, both as to order and averment, on payment of the costs of this motion. See Evans v. Davenport, supra, and Eberly v. Moore, 24 How. 157.
POSTON and others.
PAR'n OR COUNSEL WRITING ANSWERS. While it is, perhaps, not a ground to entirely suppress a deposition that the party or counsel taking it has written the answers for adoption by the witness it so discredits the evidence that it is not entitled to much weight; and this is so, although the deposition is not used, but another is taken without that objection.