Citation Numbers: 35 A.2d 766, 154 Pa. Super. 171
Judges: OPINION BY RENO, J., January 27, 1944:
Filed Date: 11/9/1943
Status: Precedential
Modified Date: 1/13/2023
Argued November 9, 1943. In this action of assumpsit upon a fire insurance policy the court below dismissed the appellant's motion for judgment n.o.v. and entered judgment on the verdict for appellee.
The policy was issued on April 14, 1942, to Joseph Kanefsky, trading as the Amber Paper Stock Company, and covered a building occupied by the insured as a junk dealer. It contained, inter alia, the following provisions: "This entire policy shall be void, unless otherwise provided by agreement in writing added hereto, — Ownership, etc. (a) if the interest of the insured be other than unconditional and sole ownership; or (b) if the subject of insurance be a building on ground not owned by the insured in fee simple."
On the date when the policy of insurance was issued, record title to the real estate upon which the insured building was erected was in Kanefsky's wife. Kanefsky purchased the property with his own funds in 1934, but by a deed dated May 29, 1936, he conveyed it and other property to his wife. She testified that the conveyance was a gift and both testified that they had orally agreed that whenever he requested her to do so, she would reconvey the property to him. Meanwhile, he continued to occupy the premises, paid the taxes, repairs, insurance and the monthly instalments upon a mortgage thereon out of his own funds. He was the sole owner of the business he conducted there; he paid *Page 173 no rent to his wife; and she exercised no control over the property or the business.
Thus, giving appellee the full benefit of all the facts and inferences favorable to him, his case comes to this: He was in possession of the property; title was in his wife; and there was a parol agreement between them that upon his request she would convey the property to him. He did not take possession under the parol agreement; he had possession before the agreement was made; and he paid no consideration for the agreement. At most he had a parol agreement with his wife that she would make a gift of the property to him at his request. In these circumstances, can he recover upon the policy?
The case is on all fours with, and the question is completely answered by, Prospect Dye Works v. Federal Ins. Co.,
That the parol agreement upon which appellee stands is not enforceable scarcely needs demonstration. Assuming that he should file a bill in equity against his wife for specific performance upon her parol promise to convey the land without consideration, he would still be obliged to hurdle at least two insurmountable obstacles: (a) he did not take possession after the agreement was made; he had possession before and remained in possession; "evidence of possession taken before the alleged parol contract, is not sufficient to establish part performance": Wright v.Nulton,
For reasons fully explained in our cases, the clauses relating to unconditional and sole ownership and title are enforced. They have been enforced and recovery has been denied in many factual situations. The following cases are typical instances: Porobenskiv. American Alliance Ins. Co.,
The court below relied upon authorities which are based upon facts not present in this case. For example in Livingstone v.Boston Ins. Co.,
The judgment is reversed and here entered for appellant.
Schroedel v. Humboldt Fire Ins. , 158 Pa. 459 ( 1893 )
Diffenbaugh v. Union Fire Ins. , 150 Pa. 270 ( 1892 )
Porobenski v. Amer. Alliance Ins. Co. , 317 Pa. 410 ( 1934 )
Rader v. Keiper , 285 Pa. 579 ( 1926 )
Bateman v. Lumbermen's Insurance , 189 Pa. 465 ( 1899 )
Clymer Opera Co. v. Flood City Mutual Fire Ins. , 238 Pa. 137 ( 1913 )
Duda v. Home Insurance , 20 Pa. Super. 244 ( 1902 )
Elliott v. Teutonia Insurance , 20 Pa. Super. 359 ( 1902 )
Chaney v. Farmers' Fire Insurance , 32 Pa. Super. 479 ( 1907 )
Prospect Dye Works v. Federal Insurance , 33 Pa. Super. 223 ( 1907 )
Schiavoni v. Dubuque Fire & Marine Insurance , 48 Pa. Super. 252 ( 1911 )
Enyeart v. Farmers Fire Insurance , 65 Pa. Super. 425 ( 1917 )
Wright v. Nulton , 219 Pa. 253 ( 1908 )
Livingstone v. Boston Insurance , 255 Pa. 1 ( 1916 )
Holmes v. Allemannia Fire Insurance , 77 Pa. Super. 337 ( 1921 )
Schloss v. Importers Exp. Ins. Co. , 83 Pa. Super. 426 ( 1924 )
Goldberg v. Knickerbocker Ins. Co. of N.Y. , 82 Pa. Super. 302 ( 1923 )