(239 N. Y. 303, 146 N. E. 432.)

under the statute is also theft under the policy. We hold another view.

The problem before us is not one of statutory construction. It is one of the meaning of a contract. The legislature may affix to new combinations of events the name of an old crime. The conclusion does not follow that the same word, and still less another word which once was an equivalent, must suffer a like extension in the thought of parties to a contract. The way is thus pointed to the decision of the case before us. "Theft," though often used as synonymous with "larceny," the proper term of art in the penal statutes of New York, is none the less a looser term, and one more colloquial or popular. People ex rel. Jourdan v. Donohue, 84 N. Y. 438, 442. Neither has a single meaning at all times and in all contexts, nor is either always and in every setting the full equivalent of the other. Cf. Holmes, J., in Towne v. Eisner, 245 U. S. 418, 424, 62 L. ed. 372, 375, L.R.A.1918D, 254, 38 Sup. Ct. Rep.

158.

Larceny, in our law of crimes, includes the offense of obtaining property by false pretenses. Penal Law, § 1290; People v. Dumar, 106 N. Y. 502, 13 N. E. 325; People v. Miller, 169 N. Y. 339, 351, 88 Am. St. Rep. 546, 62 N. E. 418. If the plaintiff had sold his car on a credit fraudulently procured, he would be the victim of a larceny; yet, manifestly, the sale would not be theft under the provisions of this contract. Larceny under the statute was, therefore, something different from theft under the contract, even before larceny had been extended to include misuse of motor vehicles. We have no reason to believe that the statutory definition, if inapplicable before, has become applicable now. On the other hand, we do not say that theft is to be limited to what was larceny at common law. assume that larceny by a bailee or a fiduciary would be theft within the policy, though at common law it would be classified under the head

We

ing of embezzlement. Pollock & W. Possession, pp. 134, 135, 157, 191. The distinction, now largely obsolete, did not ever correspond to any essential difference in the character of the acts or in their effect upon the victim. The crimes are one today in the common speech of men, as they are in moral quality. When we have recourse to these standards for the solution of our problem, the conclusion is not doubtful. The very heading of the new statute, "Unauthorized Use of Motor Vehicles," prefigures an offense that is something less than theft as theft has commonly been known. We read on with a deepening impression of movement from the ancient moorings. Operation of a car without the consent of the owner will be a crime, and larceny, if it continues for a month or for a day, but so, also, will it be if it continues for an hour, or even a few minutes. Innovations such as these may persist and become general. In course of time they may sink into common thought and common speech. They have not done so yet. "Theft" under this contract is theft as common thought and common speech would now image and describe it.

One other consideration emphasizes the need for uniformity of meaning. The policy does not limit its protection to casualties suffered while the car is in New York. Theft, robbery, and pilferage in any other state are equally within its terms. This, without more, is sufficient to forbid a reading that would cause the risks to vary with the accidents of local laws. Neither insured nor insurer can have believed that the same act would be theft within the purview of the contract, if committed in New York, and a mere trespass or conversion if committed in Massachusetts or New Jersey. They spoke in terms so common, so responsive to realities, as to have a meaning everywhere. By this they must abide.

The judgment of the Appellate Division and that of the Trial Term

should be reversed, and the complaint dismissed, with costs in all courts.

Hiscock, Ch. J., and Pound, McLaughlin, Crane, Andrews, and Lehman, JJ., concur.

NOTE.

Insurance against theft of automobile is the subject of the annotation following OHIO FARMERS' INS. Co. v. TODINO, post, 1123, and the earlier annotation there referred to.

OHIO FARMERS' INSURANCE COMPANY, Plff. in Err.,

(— Ohio St. —, 145 N. E. 25.)

Insurance, § 862 automobile effect of nonregistry.

One who purchases from an insurance company a policy covering on an automobile, which policy contains a provision that the underwriter shall not be liable if the insured be not the sole and unconditional owner of the automobile, may not recover damages under such policy, when the owner, neither at the time of the procuring of the insurance nor at the time the liability was claimed to have arisen, had complied with the provisions of the act of the general assembly relating to the registration of automobiles, found in volume 109, p. 330, Ohio Laws.

[See note on this question beginning on page 1123.]

Headnote by CONN, J.

(Jones, J., dissents.)

ERROR to the Court of Appeals for Jefferson County to review a judg ment reversing a judgment of the Court of Common Pleas in favor of defendant in an action brought to recover on a fire and theft policy covering an automobile. Reversed.

The facts are stated in the opinion Messrs. Frank Taggart, Don McVay, and S. C. Kerr, for plaintiff in

error:

In the absence of a bill of sale under the Motor Sales Act no title passes without complying with its provisions, and the provisions are clear, unequivocal, and free from doubt in that regard.

Swetland v. Miles, 101 Ohio St. 501, 130 N. E. 22; Slingluff v. Weaver, 66 Ohio St. 621, 64 N. E. 574; State ex rel. Nimberger v. Bushnell, 95 Ohio St. 203, 116 N. E. 464; Sipe v. State, 86 Ohio St. 80, 99 N. E. 208; King v. Greenwood Cemetery Asso. 67 Ohio St. 240, 65 N. E. 882; Hough v. Dayton Mfg. Co. 66 Ohio St. 427, 64 N. E. 521; Smith Bridge Co. v. Bowman, 41 Ohio

of the court

St. 37, 52 Am. Rep. 67; Moore v. Given, 39 Ohio St. 661; Wehrle v. Wehrle, 39 Ohio St. 365; Woodbury v. Berry, 18 Ohio St. 456; Buckman v. State, 81 Ohio St. 171, 90 N. E. 158; State ex rel. Harness v. Roney, 82 Ohio St. 376. 92 N. E. 486, 19 Ann. Cas. 918; State ex rel. Toledo v. Lynch, 88 Ohio St. 71. 48 L.R.A. (N.S.) 720, 102 N. E. 670, Ann. Cas. 1914D, 949; Etna Ins. Co. v. Harvey, 11 Wis. 394; Simon v. State, 125 Wis. 439, 103 N. W. 1100; 13 C. J. 421; Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406, 54 N. E. 372; Lancaster v. Miller, 58 Ohio St. 558, 51 N. E. 52; Mad River Twp. v. AustinWestern Road Machinery Co. 5 Ohio App. 298; Bellaire Goblet Co. v. Findlay, 5 Ohio C. C. 418, 3 Ohio C. D. 205;

(Ohio St., 145 N. E. 25.)

Croneis Bros. v. Toledo Computing Scale Co. 89 Ohio St. 168, 106 N. E. 5.

An illegal sale is a void sale.

6 R. C. L. p. 699, § 105; Arkansas Stave Co. v. State, 94 Ark. 27, 27 L.R.A. (N.S.) 255, 140 Am. St. Rep. 103, 125 S. W. 1001; Berka v. Woodward, 125 Cal. 119, 45 L.R.A. 420, 73 Am. St. Rep. 31, 57 Pac. 777; Cheney v. Unroe, 166 Ind. 550, 117 Am. St. Rep. 391, 77 N. E. 1041; State v. Edwards, 86 Me. 102, 25 L.R.A. 504, 41 Am. St. Rep. 528, 29 Atl. 947; Erickson v. Robertson, 116 Minn. 90, 37 L.R.A. (N.S.) 1133, 133 N. W. 164, Ann. Cas. 1913A, 493; Tarbell v. Rutland R. Co. 73 Vt. 347, 56 L.R.A. 656, 87 Am. St. Rep. 734, 51 Atl. 6; Wilson v. Beach, 11 Ky. L. Rep. 1001; 6 R. C. L. p. 701, § 107; Hancock v. Yaden, 121 Ind. 366, 6 L.R.A. 576, 16 Am. St. Rep. 396, 23 N. E. 253; Douthart v. Congdon, 197 Ill. 349, 90 Am. St. Rep. 167, 64 N. E. 348; Miller v. Ammon, 145 U. S. 421, 36 L. ed. 759, 12 Sup. Ct. Rep. 884; Sandage v. Studabaker Bros. Mfg. Co. 142 Ind. 148, 34 L.R.A. 363, 51 Am. St. Rep. 165, 41 N. E. 380; Mason v. McLeod, 57 Kan. 105, 41 L.R.A. 548, 57 Am. St. Rep. 327, 45 Pac. 76; Cashin v. Pliter, 168 Mich. 386, 134 N. W. 482, Ann. Cas. 1913C, 697; Brackett v. Hoyt, 29 N. H. 264; Smith v. Arnold, 106 Mass. 269; Woods v. Armstrong, 54 Ala. 150, 25 Am. Rep. 671; Bisbee v. McAllen, 39 Minn. 143, 39 N. W. 299; Duperier v. Flanders, 21 La. Ann. 719; Vining v. Bricker, 14 Ohio St. 331; Goode v. Martinez, Tex. Civ. App., 237 S. W. 576.

A gift in contravention of law is illegal and void.

28 C. J. 625, § 12; Cross v. Carstens, 49 Ohio St. 548, 31 N. E. 506; Boyer v. Howland, 11 Ohio C. C. N. S. 564; National Cash Register Co. v. Closs, 12 Ohio C. C. N. S. 15; Richards, Ins. Law, p. 27; 14 R. C. L. p. 905.

Messrs. Gardner & Bigger for defendant in error.

Conn, J., delivered the opinion of the court:

The facts in this case disclose that one Todino, husband of the plaintiff, on April 29, 1921, procured of the Ohio Farmers' Insurance Company, hereinafter referred to as defendant, a fire and theft policy covering on an automobile; that on October 27, 1921, the husband visited the

agent of the company and stated that he wanted the policy "corrected" by having it run in favor of his wife, hereinafter referred to as plaintiff; that pursuant to such direction the agent of the company made an indorsement, substituting the plaintiff instead of the husband as the insured.

Subsequently suit was entered in the full amount of the policy, and defendant answered with a denial of liability, averring that no bill of sale was executed by the husband to the plaintiff, in accordance with the act of the general assembly found in volume 109, pages 330 et seq., of the Ohio Laws, and that the policy contained a provision exempting the company from liability, in the event the insured was not the sole and unconditional owner of the property covered by the policy.

Plaintiff and her husband testified that on October 27, 1921, the husband gave the car to the plaintiff; that the car was stolen within a day or two thereafter, and proofs of loss were made to the defendant company, which rejected the claim. It was conceded or fully proven at the trial that no bill of sale was executed, and that the policy contained the clause as pleaded by the defendant. The common pleas directed a verdict for defendant and entered judgment thereon, which judgment the court of appeals reversed, and the case is here for our construction of that statute, in so far as it is applicable to the precise facts.

It is unnecessary at this time to determine what rights, if any, plaintiff might have against her husband and all the world, if the issue were as to her right of possession of this car. The issue, and the only issue, in this case, is, What right has plaintiff, in view of the sole and unconditional ownership clause, to recover from defendant for the loss of the car, it appearing that no bill of sale had been issued to plaintiff for the automobile prior to or at the time she claimed to acquire title to the car, or at the time the indorsement was placed on the policy, or,

(- Ohio St., 145 N. E. 25.)

ministrators, guardians, or other trustees.

Insurance contracts, as a rule, are plain. They follow standard forms. In some states policy forms are settled by statute. While Ohio has not provided a statutory form of policy, practically all policy forms in use in this state are in line with the accepted forms of other states. The one in suit is the standard form. Plaintiff under the law was required to know the contents of her policy. If in doubt as to its scope and extent, it was her duty to consult someone who could advise her. An explanation to the agent of the company of her so-called ownership at the time he was directed by the husband to change the name of the insured would have resulted either in the cancelation of the policy, or in an accurate indorsement being made thereon. If the latter had been made, the company would have been estopped to plead the ownership clause. Thus, both parties would have been protected, and the loss of this car, which was stolen the next day after the indorsement was placed on the policy, would have been sustained by the party who, having full knowledge of the facts, assumed the risk. No fraud on the part of the company or its agent is pleaded, nor could any be set up under the conceded facts, and, this being so, the policy conditions must be respected.

As bearing upon the question of what is necessary to pass title, attention is called to the case of Home Bldg. & D. Asso. v. Clark, 43 Ohio St. 427, 2 N. E. 846, in which it was held that the purchaser from the mortgagor of lands encumbered by an unrecorded mortgage takes title thereto free of such encumbrance, even if such purchaser had full knowledge and notice of the exist ence of the mortgage. This is so because the statute relating to the recording of such instruments provides that a mortgage shall take effect from the time it is delivered to the recorder of the proper county for record, and, until delivered, it is

38 A.L.R.-71.

invalid to all the world, except the parties to it.

In the case of Holliday v. Franklin Bank, 16 Ohio, 533, it was held that a mortgage has no effect, either in law or equity, until it is delivered to the recorder of the county for record. Statutes relating to conveyancing are designed to settle the title to real estate, so that individuals having to do with lands may be protected, and were passed primarily to prevent crime, not to raise revenue. How can the statute in question be waived or disregarded, in the face of the construction given by this court to the statutes relating to conveyancing?

This transaction is not like unto that of one who in good faith buys a car from another believed to be the owner, but who, in fact, is not the owner; for instance, a thief. In such case, the courts have allowed a recovery. A recent case of that type is Norris v. Alliance Ins. Co. - N. J. L., 123 Atl. 762. The court there says: "The plaintiff did not, knowingly, make any false representation to defendant as to his ownership; he supposed he was the unconditional and sole owner, without any fact known to him to the contrary, and, so far as this record shows, was, and is, the only person claiming ownership."

The case at bar is quite a different one, because plaintiff here knew, or was bound as a matter of law to know, that she had no title. She is not in position to assert her good faith, in view of the fact that she disobeyed the statute. In effect, she misrepresented her ownership of the car to the defendant. In the last above-cited case the purchaser violated no law and was allowed a recovery. In the case at bar, the plaintiff disobeyed the law, and therefore should not have a recovery. It is inconceivable that a person at one moment may defy the state, and in the next invoke its protecting arm. One may not disobey a statute and thereafter ask the courts to give him the benefit conferred by such statute,