Monroe v. Southern Mutual Insurance , 63 Ga. 669 ( 1879 )

Jackson, Justice.

We think that the facts of this case make it clear that. •there ought to be no recovery. At the time of the fire, there could be no loss to the administrator, Mr. Monroe, because all title in the property had been decided against him by the superior court, and that judgment had been affirmed by the supreme court, and the remittitur had been returned and made the judgment of the superior court.

Mr. Stewart testified that 'the remittitur was returned in November and then entered on the minutes of the superior court. So that at the time of the fire in December there was no title in the administrator. Nor was there then any possession ; but the tenant had abandoned the house and left it open.

Besides, when he insured he did not have full and complete title, but only the contingent interest dependent on a recovery; and the value of that interest nowhere appears. Nor even if he had a sort of right of possession until actual ouster by the sheriff — if the abandonment by his tenant was unknown to him and as to him might be considered temporary — and he' could re-enter, still there is no proof that he did; nor is there any loss he sustained thereby, either mesne profits, or rents, or otherwise. So that in any view of the case the verdict is right. The whole insurance system rests on indemnity for loss to the insured, and where there is no loss of course there is no need of indemnity; and therefore there must be some interest in the premises burnt at the time of the fire, otherwise there can be no recovery. Indemnity presupposes loss; if no loss to the insured there can be. no indemnity to him, and the corner stone crumbles beneath his case and it falls. Such, too, is authority. Phillips on Ins., §§185,1, 2, 3, etc.; Flanders Ins., pp. 17,345; 8 Mass., 515; 3 Denio, 301; Mees. & W., 390 ; 2 Coms., 210; 6 Pick., 198.

Judgment affirmed.