Monnett v. C., S. & H. R. R. Co. et al.

[Vol. IV, N. S.

view of the difficulty of the question, it is therefore a matter of relief to recognize, and therefore to hold that in the present case it is a matter of no consequence whatever whether the language be held to create a covenant or a condition subsequent.

If it is a condition, the penalty for breach would be a forfeiture of the estate. It is elementary that a court of equity will never enforce a forfeiture by its affirmative action.

"A court of equity sometimes releases against forfeitures, but it is not the forum to which to resort to enforce them.

Justice v. Lowe, 26 O. S., 372. In this case it is urged by plaintiff that the Short Line deed should be canceled; not to enforce a forfeiture, but to quiet title of plaintiff to the lands in question or to remove a cloud from plaintiff's title. Plaintiff is not in possession of the lands described in the Short Line deed. He claims no estate in remainder or reversion in said lands, but an entire present estate in fee simple. Equity entertains jurisdiction of an action to quiet title by plaintiff in possession, because by reason of his possession he can not proceed at law against an adverse claimant. For similar reasons our statute gives to a plaintiff out of possession, and who has or claims an estate or interest in reversion or remainder, an action to remove a cloud or quiet title against an adverse claimant? (Section 5779, Revised Statutes). But this latter provision. does not extend to one out of possession who claims the entire estate or a present right of possession merely. Raymond v. Railway Company, 57 O. S., 271.

"As to whether possession by a plaintiff is necessary before he can resort to equity to remove a cloud, there appears to be some conflict of opinion, arising from loose statements of judges and an overlooking of the principles of equity in regard to exercise of its jurisdiction. Where the estate or interest to be protected is equitable, the jurisdiction should be exercised, whether plaintiff is in or out of possession, for under these circumstances legal remedies are not possible; but when the estate or interest is legal in its nature, the exercise of the jurisdiction depends upon the adequacy of legal remedies. Thus, for example, a plaintiff out of possession holding the legal title will be left to his remedy by ejectment under ordinary circum

1904.]

Marion County.

stances. 3 Pom. Equity Jurisprudence, Section 1399, note, citing cases.

In this case plaintiff's asserted title to the land, if the provision in the deed be a condition, is a legal estate; to cancel the Short Line deed as a cloud would be to lend the aid of equity to enforce a forfeiture; and if the estate was forfeited, a court of law would adjudge it upon the same evidence or even less evidence than would be required in a court of equity to cancel the deed if the case as one proper for that remedy. For all these reasons the remedy at law is adequate and the deed should not be canceled.

If the provision is a covenant, the remedies in the event of failure to perform are (1) at law for damages, and (2) in a proper case, in equity for specific performance. This is not an action for damages for breach of the covenant, and the evidence in the case makes it very clear that the plaintiff neither insists upon nor desires a specific performance of the covenant. Hence, in case the provision be a covenant, plaintiff can not have in this court the one relief and does not desire the other to which in the case he might be entitled.

Upon the whole case, we are of the opinion that plaintiff is entitled to have the writing of date September 21, 1897, reformed so as to be in form and substance a mere receipt for the pass then delivered, and to have said writing as a release. declared null and void and therefore canceled. This relief is ancillary to any proper action at law which plaintiff may see fit to commence. What that action shall be or whether plaintiff has any cause of action, this court at this time does not desire to either determine or intimate. All relief prayed for by plaintiff, except the reformation and cancellation indicated, is denied.

Scofield, Durfer & Scofield, for plaintiff.

J. F. McNeal & Sons and Lawrence Maxwell, for defendant.

Hammel v. Insurance Co.

[Vol. IV, N. S.

INCUMBRANCE ON INSURED PROPERTY.

[Circuit Court of Pickaway County.]

LEWIS C. HAMMEL V. INSURANCE CO. OF PENNSYLVANIA.

Decided, 1902.

Fire Insurance-Condition in Policy Against Incumbrances-Failure to Attach Policy to Bill of Exceptions or to Properly Identify ItEffect of Such Failure-Condition in Policy can not be Defeated by Parole Evidence.

1. A policy of fire insurance marked Exhibit "A" is not properly identified and can not be considered by the reviewing court, where it is not attached to the bill of exceptions and is referred to in the bill as Exhibit "B."

2. But such failure to properly identify or attach the exhibit does not require that the bill of exceptions be stricken from the files where it appears that questions are properly presented for review other than those involving the exhibit.

3. Evidence that at the time a policy covering personal property was written the assured informed the agent that the property was incumbent is inadmissible for the purpose of varying a provision of the policy rendering it void in case the property is covered by chattel mortgage, unless otherwise provided by agreement indorsed thereon.

JONES, J. (orally); CHERRINGTON, J., and SIBLEY, J., concur. Heard on error.

The petition in the court below was upon a policy of insurance issued by the defendant company to L. C. Hammel & Co., upon certain chattels owned by the defendant, L. C. Hammel. The petition, after setting forth the description of the chattels, avers that at the time of the issuing of the policy in the name of L. C. Hammel & Co. there was a chattel mortgage on the goods and chattels described in the policy, but that the defendant had notice and knowledge of the fact of the existence of that chattel mortgage; it avers the loss and proof of loss and asks judgment for the plaintiff.

The third defense alleges that said policy of insurance, issued to said L. C. Hammel & Company, contained a provision that said policy, unless otherwise provided by agreement in

dorsed thereon, or added thereto, should be void if the subject of insurance be personal property and be or become incumbered by chattel mortgage, and the defendant then alleges that prior to and at the time of the issuing of said policy of insurance to said L. C. Hammel & Company, by this defendant, said property, goods and chattels insured by said policy of insurance were covered by a chattel mortgage in the sum of $911.50; that there was no agreement indorsed upon said policy or added thereto, consenting to or permitting the lien of said chattel mortgage upon said property so insured by this defendant. Defendant further alleges that at the time it issued said policy of insurance it had no knowledge or notice of the existence of said chattel mortgage.

To obviate the effect of that defense, the plaintiff filed a reply wherein he denies the allegation in said answer that at the time said policy of insurance was issued, said defendant had no knowledge or notice of the existence of said chattel mortgage, and he denies the allegation that the defendant has in no manner waived said condition and provision contained in said policy of insurance; and sets up the fact that the defendant company's agent had notice of the incumbrance upon the chattel property by way of mortgage, and that he, the plaintiff, had no knowledge of any provision in said policy of the character, manner and description set forth in said third defense at the time said policy was issued and delivered to him, and that said agent did not advise or inform him of said provisions, nor that it was necessary that any endorsement should be made upon said policy or added thereto, consenting to or permitting the existence of said chattel mortgage upon said property.

The plaintiff offered his evidence, and at the conclusion of that evidence the defendant moved the court to direct a verdict in its behalf; this the court did, and the verdict was returned by the jury for the defendant. A motion for a new trial was filed; that motion was overruled and a petition in error was filed in this court.

A motion was made by the defendant in error to strike this bill of exceptions from the files. That motion will be overruled,

Hammer v. Insurance Co.

[Vol. IV, N. S.

but in so far as the bill of exceptions does not contain a copy of the insurance policy pleaded in this case, we will disregard the policy itself. In other words, the court holds that we are not permitted to consider the alleged copy of the policy in this case as being in evidence before this court (although it was before the court of common pleas), for this reason: the bill of exceptions refers to a policy of insurance as having been offered in evidence, but the policy is not in the bill of exceptions; it refers to a policy marked Exhibit "B," and the alleged policy is marked Exhibit "A," and is not in any way attached to the bill of exceptions, offering us no particular way of identifying this policy as the policy offered in evidence; so that in passing upon this case we will pass simply upon the effect of the evidence, as to whether or not it has a tendency to prove a case for the plaintiff below.

While there are a number of questions and answers objected to by the defendant below, a large number of which were properly objected to and properly excluded by the court, the main contention arises as to the action of the court in ruling upon questions and answers found in the bill, relating to the fact whether or not the defendant company, through its agent, had notice of the fact that there was an incumbrance by way of a chattel mortgage upon the property described in the policy of insurance.

It seems from the evidence that one Harry Van Hyde was the agent of the defendant company, and the agent of other insurance companies as well; that some time in 1898 (the plaintiff offered evidence to prove, which was rejected by the court), this agent was told at that time, when attempting to negotiate insurance in another company, for which he was agent, that there was an incumbrance upon this chattel property; and later, when this agent, Van Hyde, did negotiate insurance for plaintiff in the defendant company, testimony was offered to show that, at that time, the plaintiff told the agent that there was a lien by way of a chattel mortgage upon his property. All of this evidence was excluded by the court upon the theory, no doubt, that it was incompetent to introduce any evidence which