85 Neb. 85 | Neb. | 1909
In 1902 John W. Bassett, plaintiff herein, purchased a farm in Otoe county and procured the conveyance therefor to be made to his wife. In 1904 defendant insured plaintiff for five years against loss by fire of the dwelling house on said farm. In 1906 the house was totally destroyed by fire. Defendant denied liability upon its policy, and returned the premium received by it from plaintiff, which he retained some months, and then sent back to defendant. Defendant tenders plaintiff the amount of said premium.
1. The most important question raised by the defense is that under the facts plaintiff did not have an insurable interest in the property destroyed, and for that reason cannot recover. Without an insurable interest plaintiff ought not to prevail. Stanisics v. Hartford Fire Ins. Co., 83 Neb. 768. At the time the policy was issued, excepting only her homestead, a married woman in Nebraska could dispose of her real estate without her husband’s assent, and by her sole deed convey title thereto freed from his interest inchoate or otherwise therein. The farm under consideration was not a homestead. Not only may the wife thus convey her real estate, but during her lifetime the husband has no right to its possession or control, nor to any part of the rents and profits issuing therefrom. Cases may be cited to sustain the proposition that the husband’s estate by the curtesy initiate is an insurable interest; but an examination of those cases will disclose that they are based upon laws giving the husband more than a mere expectancy in the wife’s land. In jurisdic
2. For the reasons just stated, the case must be reversed, and it is not necessary to examine the defense of a forfeiture because of the alleged concealment and misrepresentations by plaintiff concerning the title, nor to go into the alleged fact that defendant’s agent was cognizant of the facts when he solicited the insurance and took plaintiff’s application therefor. The agent did not testify in the case, and it may be doubted whether proof of his statements and admissions made subsequent to taking the aplication will bind defendant. Furthermore, the court would be greatly assisted in a solution of the differences between the parties upon this point if it were made clear whether or not, when Mr. Butt, defendant’s agent, acted as an intermediary between Mrs. Bassett’s vendor and herself, he was then defendant’s agent, and whether or not at the time he took plaintiff’s application he had in mind the facts incident to the transfer of said title, and, if so, whether by oversight or otherwise he failed to correctly fill out the application.
There is not a scintilla of evidence to indicate that the fire was of incendiary origin, and we dislike very much to reverse the judgment before us, but the failure of proof
Reversed.