The Amazon Insurance Company v. Wall. THE AMAZON INSURANCE COMPANY V. WALL. (31 Ohio St. 628.) Insurance - knowledge of agent- estoppel. A policy of insurance issued to a mortgagee contained a stipulation that if any change took place in the title or possession, the policy should be void. Without the knowledge of the company, the owner sold and conveyed the property and satisfied the mortgage. Held, that a subsequent assignment of the policy by the mortgagee to the purchaser, and a verbal agreement between the latter and an agent of the company, having power to make contracts and issue policies, that such assigned policy shall have the force and effect of a new policy to the purchaser, will bind the company. MOT OTION for leave to file petition in error. Action on policy of Parker was agent of the Amazon Insurance Company, with full power to receive proposals for insurance against loss or damage by fire or lightning, and to make insurance by policies of the company, countersigned by himself as such agent, and to renew the same, assent to assignments or transfers, and in all other matters and things to attend to the business and duties of the agency, in manner and form prescribed by the company. As such agent he issued a policy to Gillespie, as mortgagee of said property. Hamilton afterward conveyed the property to Wall, and received in exchange a farm in Champaign county, Ohio. Wall desiring to have the property unincumbered, induced Gillespie to take in lieu of his mortgage, a mortgage on the Champaign county farm, and assign his policy to Wall. Subsequently the insured property was burned. The opinion states the other facts. Wall had judgment. Long, Kramer & Kramer, for the motion. The assignment by Gillespie to Wall, and the consent of Parker thereto, does not make a new policy, nor change the original memorandum of the insurance. Bates v. Equitable Ins. Co., 10 Wall. 33; Eastman v. Carroll County Ins. Co., 45 Me. 307; Smith v. Saratoga Co. Ins. Co., 3 Hill, 510; Fogg v. Middlesex Ins. Co., 10 Cush. 337. Lipman Levy, contra. OKEY, J. [Omitting a minor question.] The strongest objec The Amazon Insurance Company v. Wall. tion to a recovery, no doubt, is, that the property was sold and conveyed to Wall; that Gillespie accepted a mortgage from Hamilton, on a farm in Champaign county, in lieu of his mortgage on the mill; that this was done without the knowledge or assent of the insurance company or its agent; that by the terms of the policy it became void when there was a change in the title or possession of the property; and that where a policy is terminated in this way without notice to the insurer, and without his fault, such insurer may retain the unearned premium; so that there would be no consideration for the agreement with Wall. We need not decide how tenable, under other circumstances, this position might be; for, as we have seen, Wall desired insurance on the property, and it was quite immaterial to him whether he obtained it through a new policy or by an assignment of the policy issued to Gillespie. The exact condition of the property - the conveyance to Wall and the new mortgage to. Gillespie - was fully explained to Parker, the agent, and with such knowledge he agreed that Gillespie's policy, when assigned to Wall, should have the force and effect of a new policy. Wall, believing Parker's statement that this was the proper course, relied and acted on it. Under such circumstances, however the transaction may be viewed, it is very clear that the company is estopped to deny such act of its agent. Wood on Ins., § 407; Pratt v. New York Central Ins. Co., 55 N. Y. 505; 14 Am. Rep. 304; Etna Ins. Co. v. Olmstead, 21 Mich. 246; 4 Am. Rep. 483. This, of course, is opposed to Cockerill v. Cincinnati Mut. Ins. Co., 16 Ohio, 148. But that case, holding that verbal agreements with respect to insurance are invalid, is virtually overruled in the Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; 15 Am. Rep. 612. And see Relief Fire Ins. Co. v. Shaw, 94 U. S. 574; Wood on Ins. 10; May on Ins. 41; Flanders on Ins. 118. [Omitting a minor question.] Motion overruled. CASES IN THE SUPREME COURT OF ог WEST VIRGINIA. MARLING V. MARLING. (9 W. Va. 79.) Seal-gift of land by unsealed instrument — power of equity to effectuate. A court of equity will effectuate a gift of lands by a father to his child, evi. denced only by an unsealed instrument delivered to the child. SUIT UIT to compel a conveyance of land. The opinion states the facts. William P. Hubbard, for appellant. Joseph H. Pendleton, for appellees. GREEN, J. Mary Marling and Elizabeth Marling brought a suit, in chancery, in the Circuit Court of Ohio county, in 1873, against their father, Elijah Marling, to compel him to convey to them a certain farm, in that county. It appears that in 1845, Elijah Marling bought this farm of Hardesty, and it was conveyed to him; that, shortly thereafter, he put his said daughters in possession thereof and they have ever since lived upon this farm. On May 3, 1863, in consideration, only, of his love and affection to them, he executed and delivered to them this paper: "I sine all my interest and claim unto Mary Marling and Elizbeth Marling, the farm they now live on, coled the Harsty farm, as witness my hand and sel. ELIJAH MARLING." Marling v. Marling. The Circuit Court of Ohio county ordered Elijah Marling to execute, with special warranty of title, a deed of said farm to them. From this decree, Elijah Marling has appealed to this court. The question presented to this court for the first time is, whether a court of equity should furnish its aid in making effective a gift, of land, by a father to his child where the gift is evidenced by an unsealed instrument, executed by the father, and formally delivered to the child. Where there is no consideration of any kind, the courts have decided that where a trust is actually created, and the relation of trustee and cestui que trust established, a court of equity will, in favor of a volunteer, enforce the execution of the trust; although it will not create a trust, or establish the relation of trustee and cestui que trust, by giving effect to an imperfect conveyance in favor of a volunteer. Ellison v. Ellison, 6 Ves. Jr. 656; 1 Lead. Cas. in Eq. 199. It has also been held that a declaration, by a party, that property shall be held, in trust, for the objects of his bounty, though unaccompanied by any deed or other act divesting himself of the legal estate, is an executive trust, and will be enforced; and if the property is personal, such declaration may be by parol, without any writing. Pye & Dubost, ex parte, 18 Ves. Jr. 140; McFadden v. Jenkyns, 1 Hare, 458; s. c., 1 Ph. 153. A court of equity, in such cases, not being governed by the analogy of uses, for a use could not arise by parol agreement, without a deed, except where the consideration is valuable. Jones v. Morley, 12 Mod. 161. When the consideration is meritorious, such as the obligation of a parent to provide for his child, will a court of equity establish the relation of trustee and the cestui que trust, by giving effect to an imperfect conveyance, or by enforcing the specific performance of an executory agreement? There are expressions in the opinion of Lord ELDON, in the case of Ellison v. Ellison, and of Lord THURLOW, in the case of Colman v. Sarrell, 1 Ves. Jr. 50, which show that they supposed a court of equity would, in such case, afford aid, if the consideration was meritorious; though this question was not before the court in these cases. And in the case of Ellis v. Nimmo, L. & G. temp. Sugd. 333; 10 Cond. Eng. Ch. 534, Lord SUGDEN decided this question in the affirmative, after the most mature consideration. In that case the father, John Nimmo, agreed with his son in law, Brabazon Ellis, that he would settle upon his daughter, Mrs. Ellis, £50 a year, during her life, to be raised out of a certain Marling v. Marling. estate owned by him. The agreement was reduced to writing and signed by John Nimmo, but not sealed. The Lord Chancellor says: "In this case the question is, whether the consideration is sufficient to support a post-nuptial agreement in writing, entered into by a father in favor of his child. I should say the agreement ought to be specifically executed, if we look back we shall find what was the consideration necessary to raise a use before and after the statute." In Gilbert on Uses, 92, it is laid down, "if a man, in consideration of natural love and affection, covenants to stand seized to the use of his son or brother, nephew or cousin, this is a good use." Upon a covenant to stand seized for the benefit of a wife or child, equity held such a consideration sufficient to bind the estate. That was a use before the statute; that use the statute executed and turned into a possession; still it rested upon the original equity. A covenant to stand seized was merely an agreement founded on a good or meritorious consideration, and the statute executed the agreement. But though covenants to stand seized, before the statute, were mere contracts, which equity, specifically, enforced, yet as the statute operated upon them, they were, at once, distinguished from mere agreements or contracts, resting in fieri, to settle an estate, just as bargains and sales, which, before the statute, were contracts to sell, became actual conveyances by force of the statute, and were not confounded, after the statute, with simple contracts to sell; and which, from their nature, could not be deemed executed. How far the consideration, which, before the statute, was sufficient to support a covenant to stand scized, or a bargain and sale, could sustain a contract, to sell or settle an estate, since the statute, so as to enable equity to specifically enforce it, has been the subject of much judicial investigation. In Fothergill v. Fothergill, Freem. Ch. 256, it was held "that whenever a conveyance was made upon a good consideration, if there be any defect in the execution of it, that this court hath always supplied the defect; and though provisions for a wife and children after marriage are not valuable considerations, yet they are good considerations, and were always helped in this court." In Chapman v. Gibson, 3 Bro. C. C. 229, a surrender was supplied in favor of the wife against the heir at law, Lord ALVANLEY saying, that he thought the execution of a power and a surrender of a copyhold go hand in hand, precisely on the same ground. Now equity always assists a defective execution of VOL. 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