Ætna Insurance v. Jacobson , 1902 Ill. App. LEXIS 77 ( 1902 )

Mr. Presiding Justice Ball

delivered the opinion of the court.

Appellants contend that by the assignment of the policies Jacobson forfeited all rights thereunder. Forfeitures are not favored in the law. The burden is on him who claims the benefit of a forfeiture to clearly establish his right. The witness Kuhl, an employe of the holder of the trust deed indebtedness, who was called by appellants, and whose testimony stands uncontradicted, testifies that after the fire he took the policies to the office of Mr. Blum, and there the assignments were written upon the back of them; that he then carried them to the companies and asked them to consent to the assignments, which they refused to do. Each of the policies provides that it shall be void “ if this policy be assigned before a loss.” Here is no ground of forfeiture. The contention in this regard can not be sustained.

Appellants further assert that the making of the quitclaim deed from Jacobson to Bernstein rendered the policies void. Each policy provides that it shall be void “if any change otherwise than by death of an insured take place in the interest, title or possession of the subject of insurance.” The question then arises, is this instrument a deed, or was it intended as a mortgage ? The execution of a mortgage upon insured property is not a violation of the covenant against a change of title. A deed absolute in form, may be shown by parol to be a security only, if such be the fact. The intention of the parties governs. German Ins. Co. v. Gibe, 162 Ill. 251.

Appellants declare that in order to show that an instrument, a deed in form, is a mortgage in fact, the proof must be clear and convincing. The authorities cited to sustain this proposition are contests between grantor and grantee. It is doubtful if that rule applies to cases like the one at bar, where the question is mooted with a third party, and where, if defeated, both grantor and grantee lose substantial rights. Without, however, passing upon that question, we call attention to the fact that the direct evidence in the record tends strongly to prove that the deed was in fact a mortgage. Appellant Bernstein produced a note signed by Jacobson, which indicates a prior indebtedness from the latter to the former. Bernstein never took possession of the premises. After he received the deed, interest was paid to him upon the alleged indebtedness. On the other hand, after the premises were damaged by fire, Bernstein, in his own name-,' entered into a contract for the repair of the building; and there was an attempt by some one, presumably Jacobson, to assign the policies to Bernstein. A careful examination of the record convinces us that it contains sufficient evidence, if believed, to justify the master in his conclusion that this quit-claim deed, in fact and in equity, was a mortgage,

Appellants also contend that they are not liable upon these policies, because appellees filed no proofs of loss. Proofs of loss were filed by the trustee and accepted by the companies. Unless the duty of filing such proofs upon the part of appellees was waived by the acts or words of appellants, the right of Jacobson to recover upon the policies was lost. It is claimed by appellees that there is abundant evidence showing that appellants, within a few days after the loss, denied liability upon the policies .to Abraham Bernstein, the agent of appellee Jacobson. A distinct denial of liability, and refusal to pay on the ground that there is no liability, is a waiver of the condition requiring proof of loss. May on Ins., Sec. 469.

It appears from the evidence that appellants learned of the existence of the quit-claim deed immediately after the fire, and within a very few days thereafter denied liability upon that ground in a conference with the trustee and Abraham Bernstein. The witness Williams, called by appellees, who represented the Ætna Insurance Co., says that Abraham Bernstein said that he represented appellee Jacobson. But Williams did not represent the other appellant. Abraham Bernstein says that the wife of Jacobson, as soon as the loss occurred, wrote to her husband in Silver-ton, Colorado, and that the latter wrote to the witness to represent him and to settle the loss. - This letter is not produced. It could not have been received by February 8th, when the second interview between him and the appellants is said to have been had! Nothing was said about such a letter until after the first report of the master was announced, in which Jacobson was held to have forfeited his rights under the policies because of his failure to file proofs of loss, it not appearing that the denial of liability by the companies was brought either to his knowledge or to the knowledge of any one acting for him. But Bernstein did produce a letter, which is in evidence, from himself to appellee Jacobson, dated February 12th, in which he acknowledges the receipt of a letter from appellee authorizing the witness to see the insurance companies and to settle the loss.

There is much in this record that tends to discredit the witness Abraham Bernstein, and to throw doubt upon his assertion that he represented Jacobson at any time when the companies denied liability in his presence. The conflict upon this question is direct, and this is especially true as to the alleged denial by the English and American Under, writers. But even if we might have reached a different conclusion had the matter been submitted to us in limine, we can not reverse upon that ground alone, where the evidence fairly tends to establish a different conclusion which was reached by the master and concurred in by the chancellor.

“ The witnesses were before the master and heard by him, and when such is the case, due weight should be given, because of the advantage the master derived from seeing the witnesses, in judging of their credibility.” Hubbard v. Hubbard, 79 Ill. App. 217, and cases cited.

Where the finding of the master has been approved by the chancellor, an appellate tribunal will not disturb the finding, unless the weight of the evidence is manifestly and clearly against the finding. Siegel v. Andrews & Co., 181 Ill. 356.

Finding no reversible error in the record, we affirm the decree of the Superior Court.