Moeller v. American Fire Insurance , 52 Minn. 336 ( 1893 )

Gilfillan, C. J.

Action to reform a policy of insurance, and to recover upon it as reformed. The policy, as executed, insured one Wait (who at the time was the owner of the property) against loss by fire. It contained this clause: “Loss or damage, if any, under this policy shall be payable to Mary E. Webster, as mortgagee, (or trustee,) as interest may appear;” the plaintiff’s name notappearing in the policy. The reformation of this clause by inserting the name ■of plaintiff in the place of the name of Mary E. Webster is sought. Without being thus reformed, of course the plaintiff cannot recover upon it; and, if plaintiff is not entitled to have it so reformed, that ■disposes of the case, and all other questions are immaterial. The findings of fact upon which the right to a reformation must be determined are not claimed to be erroneous, and must therefore be taken as the basis of decision. Wait had executed a mortgage to Mrs. Webster, and she and plaintiff applied to one Ames, the agent of the company, for a policy of fire insurance in such form as he ■considered safé and proper, Mrs. Webster paying the premium therefor; and, as the court finds, “at the time said policy of insurance was applied for the plaintiff and said defendant Webster informed the said Ames that said mortgage made by said Wait and his wife to ■said Webster had been assigned by said Webster to the plaintiff herein; that said assignment was made for convenience of foreclosure only; that said defendant Webster was in fact the sole owner of said mortgage and the indebtedness secured thereby.”

The proposition on which the claim to reformation is based is that it was through the mistake of the agent that Mary B. Webster’s instead of plaintiff’s name was inserted in the policy as the holder of the mortgage interest. That it was his mistake can be argued only by assuming that he knew the only agreement between plaintiff and Mrs. Webster, by which the latter retained her interest in the debt and mortgage notwithstanding the assignment inform, was by parol, and that he ought thereupon to have known as a matter of law that under the statute of uses and trusts a parol trust in personal property is void, and that consequently Mrs. Webster could not be the owner of the mortgage, or any interest therein.

Without assuming to determine whether, by laying before him the evidences of their agreements, they could have constituted him, as defendant’s agent, the judge of the legal effect of the agreements, and of what their respective rights were under them, it is enough to say they did not attempt to do so. They stated to him what their rights with respect to the mortgage were, and it was his duty to assume their rights to be just as they stated them, and to draw the poliey accordingly, which he did.

Judgment affirmed.

(Opinion published 54 N. W. Rep. 189.)