Niagara Fire Insurance v. Scammon

Citations

• 144 Ill. 490

Syllabus

<p>1. Insurance—condition against alienation of the property insured— invalid sale will not avoid policy. Under a clause in a policy of insurance of a building against loss by fire, that any sale, transfer or change of title in the property, or foreclosure of a mortgage, shall avoid the insurance, a merely voidable sale will not constitute such an alienation or change of title as will defeat a recovery of a loss accruing before the sale is set aside, when the assured has done nothing to ratify such sale.</p> <p>2. A voidable deed made by direction of a court, or by a master in chancery, or under a power, where the insured still retains possession, and has the same interest in the property that he had before the malting of such deed, does not constitute an alienation of the property within the meaning of a clause in a policy of insurance against any sale or change in the title of the property insured.</p> <p>8. A trustee under a mortgage containing a power of sale can not become a purchaser at his own sale, either directly or indirectly, by procuring another to purchase for his benefit, and-if he does so become the purchaser, the rights of the mortgagor will remain precisely the same as though no sale had been made, and such sale will not defeat his rights under a policy of insurance against loss of the mortgaged premises by fire, which declares that any sale, etc., shall defeat the insurance.</p> <p>4. Same — alienation that will avoid policy. An alienation or change of title that is made without the act or consent of the insured will not create a breach of a condition in a policy against a sale or change of title, unless there has been an actual sale or alienation of the property that is valid against the insured.</p> <p>5. Same — right to insist on a forfeiture — burden of proof. The right of the insurer to insist upon a forfeiture under a clause in the policy against alienation or change of title is stricti juris, and such right must be brought clearly within the