
    Baldwin et al. v. State Insurance Company.
    1. Insurance: fraudulent intent of the insured: reformation of policy. Where a son took a policy of insurance in his own name upon his father’s property, the father being privy thereto, so that, in case of loss, the proceeds thereof might be protected from garnishment by his father’s creditors, the'father and son joining as plaintiffs cannot ask that the policy be reformed, so as to make the loss (which has occurred) payable to the father, and he cannot recover thereon.
    2. -:-: insurable interest: parol to vary policy. Neither in such case can the son recover. He cannot recover for his own benefit, because he had no interest in the property; and he cannot recover for the benefit of his father, because the policy limited the right of recovery to himself; and it was not competent to prove a contemporaneous parol contract between the parties that the insurance was to be considered for the benefit of the father.
    
      Appeal from Van Burén District Court.
    
    Friday, March 23.
    Action in equity to reform a policy of fire insurance, and enforce payment for a loss alleged to have occurred under it. The building which the policy purports to cover is described as being on the southeast quarter of section 2, township 70, Yan Burén county. The building destroyed was on the southwest quarter of the section. The policy ran to the plaintiff, ~W. E. Baldwin. The building destroyed was owned, both at the time of the issuance of the policy and at the time of the loss, solely by the plaintiff, E. T. Baldwin. The plaintiffs ask that the policy “be reformed so as to insure and cover tbe pi’operty and interest of the plaintiff, E. T. Baldwin”, and “tbat tbe plaintiffs, or sucb one of them- as may be entitled thereto, have judgment.” Tbe court dismissed tbe plaintiffs’ petition and they appeal.
    
      Stiles <& Beaman, for appellants.
    
      Wright, Oummms (& Wright, for appellee.
   Adams, J.

Whether tbe plaintiffs were entitled to a reformation of tbe policy, so far as tbe description of tbe property is concerned, we need not determine. Tbe case will turn upon other questions. It appears to us tbat insuperable obstacles stand in tbe way of any recovery by either of tbe plaintiffs, and would, if tbe property destroyed bad been described in tbe policy as tbe property insured.

We proceed to inquire, first, whether E. T. Baldwin can recover. He certainly cannot, unless by a reformation of hhe policy be can be made a party to it. Now, perhaps, it would be sufficient to say tbat be does not specifically ask for sucb reformation, j£e qoes not, indeed, show with any precision upon what theory be expects to recover.

But waiving this objection, we have still to determine whether the facts are such as to entitle him, by reformation of the policy, to be made a party to it. If be contracted for tbe insurance, and tbe intention was to insert bis name in tbe policy as tbe insured, and by mistake tbe name of W. E. Baldwin was inserted, tbe way would seem to be clear to reform tbe policy by tbe insertion of E. T. Baldwin’s name as tbe insured, in tbe place of tbat of W. E. Baldwin, and give E. T. Baldwin a right of recovery. But tbe evidence shows conclusively tbat W. E. Baldwin contracted for tbe insurance, and paid for it, and tbat bis name was purposely inserted in tbe policy as tbe insured. There never was any understanding on the part of any one tbat E. T. Baldwin’s name was to be inserted in the policy. The policy was drawn precisely as the parties to it intended it should be, and, so far as E. T. Baldwin had any thing to say about it, precisely as he intended it should be. The facts were, as shown conclusively by the evidence, that E. T. Baldwin was financially embarrassed, and apprehended that, if the policy ran to him, his creditors, in case of loss, would, by garnishment or otherwise, reach the insurance, and subject it to the payment of their claims. It was to obviate this difficulty that his son, W. E. Baldwin, caused the property to be insured in his own name, and paid the premium himself. If now we reform the policy, so as to make it payable to E. T. Baldwin, we shall do so, not only in the absence of any mistake, but we shall make a contract in behalf of E. T. Baldwin which both he and his co-plaintiff took pains to avoid. It is manifest that to do so would be a most extraordinary exercise of equitable power, and for which the law affords no warrant.

We come then to inquire whether W. E. Baldwin can recover. He certainly cannot recover for his own benefit. It is conceded that he did not suffer by the loss, and has no beneficial interest in the policy.

Can he recover for the benefit of E. T. Baldwin? If we understand the plaintiffs, they maintain that he can. Their theory seems to be that, contemporaneously with the issuance of the policy, the parties to it and E. T. Baldwin entered into a parol agreement, whereby the policy was in effect to be deemed to be issued for the benefit of E. T. Baldwin, and payable in case of loss to W. E. Baldwin, for E. T. Baldwin’s use. To this position we think it sufficient to say, that the policy, by express terms, limits the right of recovery thereunder to W. E. Baldwin’s interest in the property. We cannot give it the effect contended for without first so reforming it as to eliminate this provision, and there is neither allegation nor proof that the provision was inserted by mistake. The most that can be said is that the parties purposely stipulated in writing that tbe right of recovery should be so limited, and by parol that it should not be so limited, and that the plaintiffs supposed that the parol agreement could be set up in equity in contravention of the written one. But this is not such mistake as a court of equity can relieve against. Equally fatal to the plaintiff’s position is another fact. The parol agreement set up in contravention of the unmistakable terms of the policy, if made, was made by the agent of the company who took the application, and it is shown by undisputed evidence that he had no authority to make any agreement whatever. The authorities cited by the plaintiffs for the purpose of showing that even such agent, when he undertakes to fill an application, is responsible for its correctness, if true answers are given by the applicant, are not in point. We think that the plaintiff’s petition was properly dismissed.

Affirmed.  