National Ben Franklin Fire Insurance v. Hurley

Sutton, J.

This is the second appearance of this case in this court. Hurley v. National Ben Franklin Fire Ins. Co., 46 Ga. App. 515 (167 S. E. 917). For a statement of the facts see the report of the case when it was here before. On the second trial of the case the evidence authorized a finding that the security deed executed by the wife of John Hurley was made with his knowledge and consent. This deed was made to Barnett, a creditor of Hurley and his wife. The contention of the insurance company is that this deed voids the policy, which contained a change-of-title or interest and a sale-and-unconditional-ownership clause, and that even though the wife was without authority to make the deed, the husband was estopped to deny its validity, by having consented to its execution and having received the benefits thereof. The court directed a verdict for the plaintiffs. The defendant insurance company moved for a new trial, the motion was overruled, and to this judgment it excepted.

An alienation of the insured property without the consent of the insurer voids the policy. Civil Code (1910), § 2484. Where a policy of fire-insurance contains a condition that the policy shall be void if the property be sold, or the title or possession of the property transferred or changed, and the property is conveyed by a deed to secure a debt, this constitutes such a change of title or interest as to constitute a breach of the above conditions in the policy, so as to void the policy. Phœnix Ins. Co. v. Asberry, 95 Ga. 792 (22 S. E. 717); Athens Mutual Ins. Co. v. Evans, 132 Ga. 703 (64 S. E. 993). This is true although the security deed was executed by the wife, who had only an equitable interest in the premises. Watts v. Phenix Ins. Co., 134 Ga. 717 (68 S. E. 479). The security deed in this case was executed with the knowledge and consent of the husband and purported to convey all of the property insured; and therefore could have been enforced by the grantee therein against the property conveyed thereby. Georgia Pacific Ry. Co. v. Strickland, 80 Ga. 776 (6 S. E. 27, 12 Am. St. R. 282); Watkins v. Gilmore, 130 Ga. 797 (62 S. E. 32). In these circumstances the evidence demanded a finding that the insurance policy sued on in this case was void and unenforceable, and it was therefore error for the court to direct a verdict for the plaintiffs.

Judgment reversed.

Jenkins, P. J., concurs. Stephens, J., dissents.