[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 173
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 174
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 175 The relief sought in this action against the infant defendant, Jack, need not be considered, because there was no demurrer on her behalf, and she has died since the commencement of the action.
It is somewhat uncertain whether the defendant, Gleavey, was made a party on account of some supposed personal obligation which she owed to the plaintiff, or simply as general guardian of the infant defendant. But we will consider her a defendant in both aspects.
She executed the mortgage mentioned in the complaint, and in that covenanted to keep the building erected upon the mortgaged premises insured, and to assign the policy to the plaintiff, as collateral and further security, and that in default of so doing, the plaintiff might make such insurance at her expense. There is no allegation in the complaint that she made such default, or that because of her default the plaintiff procured the insurance now in question.
After she had conveyed the premises, and while the infant Jack owned them, the plaintiff of his own motion procured this insurance; insuring Jack as owner and himself as mortgagee, loss payable to him as mortgagee. This insurance was a contract made by him with the insurance company, and it was taken in the form agreed upon between it and him. She had nothing to do with it. It does not provide that she was to furnish any proofs of loss, but that they should be furnished by the assured. She is not legally bound to furnish any proofs; and as she is not the assured, she could not furnish any in her own name. If she could furnish any, it would be a neighborly act to do so; but she *Page 177 would be under no obligation which the law would enforce.
As the general guardian of the infant Jack, she is certainly under no greater obligation than her ward would be if an adult. Jack had nothing to do with the insurance, was under no obligation to pay the mortgage or to procure any insurance for plaintiff's benefit. He could not, by his contract with the insurance company, bind her to furnish any proofs. It may be very embarrassing, or difficult, or perhaps impossible, for plaintiff to furnish the proofs and comply with the condition in his policy. But that is a dilemma in which he has voluntarily placed himself, and he cannot compel one to relieve him therefrom who is under no legal obligation to do so.
The answer to the complaint, so far as it seeks relief against Mrs. Gleavey and her ward, is that it does not show that either of them is under any obligation to aid the plaintiff about his proofs. If there is any obligation at all, it is simply a moral obligation — one of that imperfect kind of which the law does not take cognizance.
If we are right so far, it cannot be claimed that any cause of action is stated against the insurance company. The main groundwork of the action for equitable relief fails. The action cannot be maintained to cut off or destroy its defense, based upon the short limitation of time for the commencement of an action upon the policy. If such defense does not exist, this action is not needed for that purpose. If it does exist, it cannot be taken away by a judgment in this action. Whether it exists or not, must be determined in an action upon the policy; and when such an action is commenced, the plaintiff may avail himself of any answer to such defense which the law and the facts may give him.
Nor can this action be maintained against the insurance company to recover upon the policy; because such an action would be one at law. Besides this action is based upon the assumption that the condition as to furnishing proofs has been neither complied with nor nullified, and hence, such action could not be maintained. *Page 178
We are, therefore, of opinion that this complaint does not state facts sufficient to constitute a cause of action against any of the defendants, and the judgment must be affirmed, with costs to the insurance company. But as the defendant, Gleavey, did not appear in this court, the affirmance as to her must be without costs.
All concur.
Judgment affirmed.