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Appellee, in reply to these averments in the answer, alleges "that the property was not sold or transferred to Tinkle and Black by Brady Brothers, but that it was simply leased to them, and that Tinkle and Black did not claim to own any interest in said property; that the appellant, at the time of the transfer of the policy to appellee, and before, had full notice and knowledge of the fact of such lease, and consented to the assignment thereof with full knowledge of the lease.”
The court below rendered judgment in favor of appellee for the full amount of the policy.
The first assignment of errors complains of the following charge given by the trial court: “But if you shall believe from the evidence that the defendant, or its agents, C. H. Wood & Co., knew of the terms of said agreement or contract between Brady Brothers and Tinkle and Black, and made no objection to the same, but permitted Brady Brothers and the plaintiff to continue said policy in force, and did any act calculated to induce the belief that it consented to such change, then the defendant would not be permitted to claim an avoidance of the policy sued on,' --because the said charge is not applicable to the evidence before the jury, there being no evi. dence whatever that the defendant or its agents had any notice of the terms of said contract, or that it did any act calculated to induce a belief that it consented to a change in the title of the insured property."
It appears from the evidence that on the thirty-first day of January, 1888, Brady Brothers and Tinkle and Black entered into a written contract, in consideration of four hundred dol. lars paid to Brady Brothers, and other payments to be made by Tinkle and Black, whereby Brady Brothers leased to Tinkle and Black, for the term of three years coinmencing February 1, 1888, all the property covered by the policy. The agreement states the time and amount of each subsequent payment, and contains this stipulation: “It is further hereby expressly understood and agreed by and between the parties to this contract, that should the party of the second part, on or before November 3, 1888, pay to the party of the first part an additional sum of $26.85, then and in that case the party of the first part doth hereby sell, transfer, and convey unto the party of the second part the absolute title and ownership of all of said furniture and property."
By the terms of the policy it is provided "that if any change takes place in the title, interest, or possession of the property,
except in case of succession by reason of the death of the assured, whether by sale, transfer, or conveyance, in whole or in part," etc., it shall become void.
The court instructed the jury that the contract between Brady Brothers and Tinkle and Black created a change in the title to the property. We think this a proper construction of the contract: East Texas F. Ins. Co. v. Clarke, 79 Tex. 24; Smith v. Phoenix Ins. Co., Cal., March 10, 1890; 23 Pac. Rep. 384. Although the contract rendered the policy void, the appellee contends that appellant is estopped from asserting such fact, because it knew of the change of possession of the property and the terms of the contract when it assented to the transfer of the policy to appellee.
The evidence shows that the contract was not recorded; and it further appears that at the time the policy was assigned to appellee, and consented thereto by appellant, it, through its agents, had notice and knowledge of the fact that there was a change in the possession of the property, and that the same was in the possession of Tinkle and Black, and it had been informed that Tinkle and Black held the property under a lease from Brady Brothers. The instrument creating the lease was never exhibited to any of the agents of appellant, nor were the terms and conditions stated to them. The evidence does not show that any such agents knew of the terms of the contract creating a conditional sale of the property to Tinkle and Black. They received no information as to this stipulation in the contract. Appellee seeks to avoid the effect of the want of notice upon the part of the agents of appellant of that part of the contract that creates a conditional sale, by contending, - 1. That the evidence shows that the parties to the contract simply intended it to operate as a lease, and that it was not intended that any title to the property should pass by virtue of the contract, and that appellant having notice of the lease, the estoppel would operate; 2. That although the contract may in part create a conditional sale of the property, the appellant, having notice that the property was held under a contract of lease, is chargeable with notice of all the terms and conditions of the contract entered into between the parties; that notice of the existence of the contract of lease puts appellant upon inquiry as to the stipulations creating the conditional Bale.
We think that neither of these positions is tenable. There is not, about this contract, any ambiguity or uncertainty that requires explanation. It, in unequivocal terms, transfers the property therein described to Tinkle and Black, upon their complying with certain conditions concerning the terms of sale. The legal effect of this instrument declares its purpose; and in a controversy between the parties to the contract, were its terms sought to be enforced, the law would not permit parol evidence to give it a different effect than its terms import. Further, upon this point, we think the evidence shows that the parties understood that if Tinkle and Black complied with the contract and made the payments agreed upon, they would become the owners of the property. This, we think, is a fair construction of the entire evidence offered by the witnesses upon this subject.
The fact that the appellant was informed of the existence of the lease would not put it upon inquiry to ascertain the existence of another right or interest that the lessees may have in the property. The only effect of this information would be to put appellant upon notice of the existence of the lease, and of all the terms and conditions necessary and usual contained in instruments creating such estates. He would not be expected to examine such an instrument to ascertain it it passed fee-simple or conditional title to the property described. Where the party states and names the right under which he holds, such information will not excite inquiry as to any other or different right: Dickey v. Henarie, 15 Or. 351. We do not believe that the facts justified the charge complained of, and for this reason we reverse and remand the case.
Appellee insists that the consent, by appellant, to the trangfer of the policy was a waiver of any prior forfeiture of the policy by reason of the contract between Brady Brothers and Tinkle and Black, and that such consent created a new obligation to the assignee.
Without deciding whether the consent by the insurance company to the transfer of the policy constitutes within itself a sufficient consideration for a promise creating a new obligation, and without deciding what would be the effect of the consent to the assignment of the policy in creating a new obligation upon the part of the insurance company, we do not think that the facts bring this case within the reason of the rule announced in those cases that regard such consent as creating a new obligation upon the part of the insurance com. pany. Ellis v. Insurance Co., 32 Fed. Rep. 646, and other cases
that hold that such consent to the transfer of the policy created a now obligation with the insurance company, where there has been a previous forfeiture, rest upon the ground that the agsignee was ignorant of the forfeiture or the facts from which the forfeiture resulted. Such is not the case here. It appears that Brady Brothers, at the time the policy was assigned, also transferred to appellee, by a written indorsement on the contract, all his right and interest in the contract. This transfer of the contract and property therein described to appellee was effected by Tinkle as the agent of appellee. Tinkle also, as the agent of appellee, obtained a transfer of the policy to appellee and the consent of the insurance company thereto. Tinkle, when acting as the agent of appellee in these matters, had actual knowledge of the tenor of the contract between Brady Brothers and Tinkle and Black, and of the forfeiture and acts that occasioned it. The knowledge and notice of Tinkle, under the circumstances, is chargeable to appellee.
We conclude the case should be reversed and remanded, and 80 report it.
INSURANCE – CHANGE OF TITLE UNDER CONDITIONAL SALE. – A conditional sale of insured property suspends the risk during the existence of the condition, under a policy which provides against a transfer of title: Power v. Ocean Ins. Co., 19 La. 28; 36 Am. Dec. 665, and note. A fire insurance policy conditioned to be void upon a sale of the premises is avoided by • contract of sale under which the proposed purchaser takes possession: Davidson v. Hawkeye Ins. Co., 71 Iowa, 532; 60 Am. Rep. 818. But in Wash ington etc. Ins. Co. v. Kelly, 32 Md. 421, 3 Am. Rep. 149, it was held that an executory contract for the sale of the premises did not violate a prohibition in the policy against sale or assignment. As to what are violations of con: ditions against change of title in insurance policies, see extended note to Morrison v. Tennessee etc. Ins. Co., 59 Am. Deo. 304; and extended note to Lane V. Maine etc. Ins Co., 28 Am. Dec. 154.
INSURANCE – ASSIGNMENT OF POLICY Riouts of ASSIGNEE UNDER VOID POLICY. - The mere assent of the insurers to the assignment of a policy of insurance gives no force and vitality to the policy which was void before in the hands of the assignors: Citizens' etc. Ins. Co. v. Doll, 35 Md. 89; 6 Am. Rep. 360. When a policy has been rendered voidable by the en. sambrance of the property, and the company, without knowledge of the encumbrance, consents to an assignment, the assignee cannot recover: Ellis v. State Ins. Co., 68 Iowa, 578; 56 Am. Rep. 865. The assignee of an insur. ance policy, under an assignmeut made after a loss has occurred, stands in the shoes of the assignor, and takes it subject to any forfeiture incurred by a violation of its conditions by the assignors: Bonefant v. American etc. Ins. Co., 76 Mich. 653; Pupke v. Resolute etc. Ins. Co., 17 Wis. 378; 84 Am. Deo 754; Hale v. Mechanics' elc. Ins. Co., 6 Gray, 169; 66 Am. Dec. 410, and note. See extended note to Nero York etc. Ing. Co. v. Flack, 56 Am. Dec. 747, die cussing assignments of insurance policies
IN BE WRIGHT.
[8 WYOMING, 478 ) CONFLIOT OF LAWS – PROSECUTIONS, UNDER WHICH LAW TO BE CONDUCTED.
- A statuto declaring that no grand jury shall hereafter be summoned or required to attend the sittings of any district court, unless ordered by the judge thereof, and providing for prosecutions by indictment, applies to the prosecution of crimes alleged to have been committed prior to its
enactment, CONSTITUTIONAL LAW. – PROSECUTION BY INFORMATION, instead of by in.
dictment, is not a denial of due process of law. LAWS ARE EX Post Facto if they make an act criminal which, when it was
committed, was innocent, or aggravate a crime and make it greater than when committed, or change the punishment and make it greater than that annexed to the crime when committed, or alter the rules of evi. dence so as to receive less or different testiinony than that required at time of the commission of the offense charged, or otherwise alter the
situation of the accused to his disadvantage. Laws, Ex Post Facto. - So Far As Mere MODES OF PROCEDURE are con
cerned, a party has no more right in a criminal than in a civil action to insist that his cause be disposed of under the law in force when the act
to be investigated is charged to have taken place. CONSTITUTIONAL LAW - Ex Post Facto LAWS. -- A statute changing the
number of the grand jury in all cases, and authorizing a prosecution by information as well as by indictment, does not alter the situation of an accused to his disadvantage, and therefore is applicable to the prosecne tion of a crime alleged to have been committed before its passage, if the constitution of the state, adopted before the doing of the criminal act, declared that the legislature may change, regulate, or abolish the grand jury system, and that, until otherwise provided for by law, no person shall, for a felony, be proceeded against criminally otherwise than by
indictment HABEAS CORPUS — UNCONSTITUTIONALITY OF Statute. — If a prisoner claims
that the statute under which he was convicted was unconstitutional, and therefore void, that question may be considered and determined upon