Copelin v. The Phoenix Insurance Company.

Morse herzer, and Lackland, Martin & Lackland, for appellant.

Ger&Shepley, and Rankin, for respondent.

WAGNER, J. Without particularly or in detail noticing the nstructions given for the respondent, we will simply state the law, as we understand it, in regard to the question of abandonment.

In Norton v. Lexington Fire, Life and Marine Insurance Co., 16 Ill. 235, the court, after a very free discussion of the subject, say, that the right to abandon must be determined by the judgment of experts, applied to the condition of the vessel at the time of abandonment; and although the cost of saving and repairing the vessel after her abandonment may be less than fifty per cent, yet if, at the time, the facts apparently justified an abandonment, it will be good. I Ruckman v. Merchants' Louisville Insurance Co., 5 Duer, 36, DUER, J., a very high authority on the law of insurance, declares in the opinion that "the true principle upon which the whole doctrine of abandonment may be said to rest, and by which alone its application, in converting a partial into a total loss, can be justified, is that which, in the leading case of Anderson v. Wallis, 2 M. & S. 240, is stated by Lord ELLENBOROUGH with his accustomed brevity and force. It is, that an abandonment is never to be authorized except when, at the time, the loss was actually total, or in the highest degree probable; and if we analyze the cases that have settled the law as it now prevails in England, we shall find that it is this principle that runs through, explains and justifies them all. To select an example from each class of cases: When the vessel insured is captured, there is an actual total loss; but, as she may be recap. tured or restored, an abandoment is necessary to warrant its recovery; a title must be vested in the insurers to give them the benefit of the spes recuperandi. But when the vessel is stranded, the question whether the loss shall be deemed partial, or so far total as to warrant an abandonment, will depend upon the nature and extent of the peril in which the vessel is involved, and the probable difficulty, hazard and expense of attempting to deliver and repair her. When it appears that by proper exertions she might have been gotten off, and fully repaired at a moderate cost, the abandonment is void, and a partial loss only can be recovered; and to warrant the recovery of a total loss, it must be proved that the delivery of the vessel from peril was, upon reasonable grounds, judged to be

Copelin v. The Phoenix Insurance Company

impracticable, or not to be effected unless at an expense that would absorb all her value. In other words, it must be proved that a loss actually total was in the highest degree probable." Fontaine v. Phoenix Insurance Co., 11 Johns. 295; The Sarah Ann, 2 Sum. 255. The learned judge then continues to notice the fact, that in the United States we have departed widely from the sound doctrine of abandonment, by extending to the vessel that moiety rule which, in its original application, was confined to the goods, and which, thus confined, had itself no other foundation than the existing probability of the eventual total loss.

Judge STORY distinctly announces the rule, that, in case of strand ing, the course that an owner uninsured, in the exercise of his best judgment, would have followed, furnishes the correct test of the right of the assured to abandon. The Sarah Ann, 2 Sum., supra.

Chancellor WALWORTH, in the case of The American Ins. Co. v. Ogden, 20 Wend. 302, holds the same doctrine; and there would seem to be no reason why the same test might not, with equal justice, be applied to every case in which an absolute right to abandon is not established by conclusive proof that the cost of repairs would have exceeded half the value.

The matter resolves itself into a question of fact, and must be determined by the jury from the evidence before them. By the application of these principles we cannot say that there was suificient error in the first of the instructions given to justify a reversal. Although they are subject to some verbal criticism, yet they are substantially correct.

But the greater objection is made to the instructions given by the court, which, in effect, declared that if the defendant, on or about the 21st day of November, 1865, took possession of said boat with a view of raising and repairing her, and retained her till the 9th day of May, 1866, before offering to return her to the plaintiff, and if she never was repaired as required by the terms of the policy, and if the defendant and its agents knew that she was not so repaired, and it would have required a large additional sum of money to have been expended upon her to have put her in such repair, and if the written notice of abandonment given by plaintiff was served on the defendant on the 22d day of November, 1865, then the plaintiff was entitled to recover.

Another instruction in substance told the jury that if the repairs could have been reasonably made in a much shorter time, and if

Copelin v. The Phoenix Insurance Company.

the boat was not repaired and tendered in a reasonable time, then the verdict should be for the plaintiff.

It seems to be well settled that the owners of a vessel are not bound to receive her from the underwriters if there is any material deficiency in her repairs. She must be made as good as she was before.

As to the return of the vessel within a reasonable time, the cases lay down a uniform rule. I have seen but one authority denying the proposition, and that is an adjudication of an inferior court.

In Norton et al. v. Lexington Fire, Life and Marine Ins. Co., supra, it is held, that if, after an abandonment, the underwriter takes possession of the vessel, although he does it under protest, and gets her off and repairs her, no matter at how small or great a cost, it is an acceptance of the abandonment if he does not return her in a reasonable time. This principle is first announced in Peel v. Suffolk Ins. Co., 7 Pick. 254, where it was explicitly adjudged that unless the repairs are made within a reasonable time, the insurer forfeits his right to return the vessel, and he must be considered as having accepted the abandonment. In this last case the reason for the rule is thus stated by PARKER, C. J.: "But the underwriter has his duties as well as his rights. If he took the vessel into his possesaion to repair her, he must do it as expeditionsly as possible, in order that the voyage, if it be not completed, may not be destroyed. If he delay the repairs beyond a reasonable time, he forfeits his right to return the ship, and must be considered as taking her to himself under the offer to abandon. This principle cannot well be contested. Without it the underwriters may keep the assured entirely uncertain in regard to his rights and interests, and put his property in jeopardy. The right of the insurer to take into his custody the vessel of the assured without his consent, except under the abandonment, cannot exist without the correlative duty to keep her as short a time as possible under the circumstances in which she may be placed."

The same principle is again affirmed in Reynolds v. Ocean Ins. Co,, 1 Met. 160, and in the case between the same parties in 22 Pick. 191. We are also informed by the counsel for the respondent that the principle has recently been examined and approved in the supreme court of the United States, but the decision has not been published, and we have not yet seen it.

The only case we have seen that controverts the above author

Youngblood v. Vastine.

ities, is The Marine, Dock and Mut. Ins. Co. v. Goodman, decided in the Mobile court of chancery, and published in 4 Am. Law Reg. 481. This case is not sufficient to overcome the great weight of authority arrayed against it, and its reasoning does not commend itself to our approbation We see nothing objectionable in the action of the court in the matter of giving and refusing instructions on behalf of the appellant.

Our conclusion is that the judgment should be affirmed.

YOUNGBLOOD, appellant, v. VASTINE.

(46 Mo. 239.)

Conveyance - Recorded deed from heir has preference to an unrecorded deed from ancestor.

Where a person conveyed land by a deed, which was not recorded, and his heir, after his death, conveyed the same land, by a deed which was duly recorded, to an innocent purchaser, for value, held, that the recorded deed from the heir operated to divest the title of the grantee in the unrecorded deed from the ancestor.

SARAH G. WRIGHT, deceased, by herself and her trustee, on the 20th day of July, 1859, executed to E. J. Xaupi, in trust, to secure the payment of a promissory note of same date for $3,700, given to Joseph Tuley, then living, a deed of certain real estate, her separate property, situate on the corner of Pine and Eighth streets, in St. Louis, which deed was not put upon record until the 19th of October, 1866. The said Joseph Tuley and Sarah G. Wright died in 1860 and 1861, and, on the 1st of October, 1865, D. Robert Barclay, as trustee for Mrs. Ann A. Macdonald, and with her funds, purchased said property of the heirs of said Sarah G. Wright, and received a warranty deed of the same, which was recorded April 28, 1866. It appears, from the evidence, that neither Barclay nor Mrs. Macdonald had any knowledge of the trust deed to Xaupi; that the records were examined before the purchase, to see if there were any incumbrances upon the property; that a full consideration was paid for it; that the estate of Mrs. Wright had been settled by the public administrator, and that all debts presented had been paid, but this note was not among them.

Youngblood v. Vastine.

Garesche, for appellant.

Ewing & Holliday, for respondent.

BLISS, J. This suit was brought by the administrator of Tuley to foreclose his trust deed, and the contest arises in consequence of the failure on the part of Xaupi, to whom it was made, to place it upon record. Had the second deed been executed by Mrs. Wright while living, there would be no question that it would hold against the unrecorded deed. But, in some of the reported cases upon the subject, it is held that the same preference cannot be given to the second deed if made by the heirs of the first grantor. I confess I am not struck with the force of the reasoning upon which the distinction is made, for it is based upon the idea that the second deed is inoperative because nothing descended to the heirs, and hence they had nothing to convey. If that be so, it was because nothing was left in the ancestor that could descend; that his whole estate was divested by the first deed. If his whole estate was so divested, how could a second deed, if made by himself, be operative? Yet it is not disputed that such second deed would convey the estate, notwithstanding the first.

Yet the distinction is made by some of our most respectable courts, and it is apparently recognized by this court. In Hill et al. v. Meeker, 24 Conn. 211, the majority of the court held that the unrecorded deed from the ancestor so divested him of his title that his son and heir "took nothing by inheritance that he could convey or mortgage to a bona fide purchaser who had no knowledge of the deeds." The case is a much harder one than the one at bar, and the decision is based upon "a clear distinction between a purchaser from him (the ancestor) and one from his heir, Arza. In relation to a purchase from Arza, the difficulty is that he never had any title." The same distinction was made in Hancock v. Beverly's Heirs, in 6 B. Monr. (Ky.) 531. The judge delivering the opinion acknowl edges the question to be a doubtful and difficult one, and, in reasoning upon the subject, says: "It has always been held that a deed, though never recorded, is good between the parties and as to all the world, except creditors and innocent purchasers for value. The grantor in such deed can pass no title to his subsequent donee or devisee, and the law will pass none to his heir, because there was none in him, after his conveyance, to be passed, but in favor of a