Bowman v. Franklin Fire Insurance, 40 Md. 620

Bowman v. Franklin Fire Insurance

40 Md. 620 | Md. | 1874

Auvey, J.,

delivered the opinion of the Court.

1. In regard to the first question presented on this appeal, we can have no doubt. There would have been no *630reason for the agreement, dispensing with due and formal authentication of the records of the several judgments given in evidence, if the objection now urged could he maintained. It was expressly agreed, that the abstracts of judgments then made and filed with the commissioner, might he offered in evidence, as records of the Court therein styled, with the same effect as if the judgments onid records had been duly authenticated as such, according to the Act of Congress, and the laws of Maryland; the plaintiff reserving the right to object to such records as evidence, on other grounds than the want of due authentication ; and with the same reservation of right to object, the facts stated in the certificates accompanying the abstracts were admitted to be true. Under this agreement, the short abstracts of the judgments were to he received and have allowed to them the same force and effect as if formal and duly authenticated records of those judgments had been produced; and by virtue of the agreement, in connection with the sections of the Code of Virginia, which, were produced and admitted to he in force in that State, where the property was situate and the judgments were rendered, the abstract of the judgment of McCoy, use of Barksdale, vs. Keen and Walker, referred to in the Court’s instruction, was not only conclusive evidence of the existence of the judgment, hut of the lien created thereby.

2. The 19th clause of the conditions of the policy sued on provides, that “Any incumbrance on the property hereby insured, whether existing at the time of issuing this policy, or imposed subsequently thereto, must he assented to by the company, otherwise the policy shall he void; ’ ’ and the second question presented is, whether a judgment lien is an incumbrance within the meaning of this provision of the policy ?

It is conceded that judgment liens on the property insured existed at the date of the policy, and that the fact of their existence was not disclosed to the insurance *631company, and consequently were never assented to by it. Does the failure to disclose the existence of the liens render the policy void? If a judgment lien constitutes an incumbrance, within the meaning of the policy, there can be but one answer to the question, and that in the affirmative.

According to the well understood meaning of the word incumbrance, it lias always been supposed to embrace judgment liens. Indeed no incumbrance is more common than that created by the liens of judgments. It has been repeatedly held, if judicial decisions could he required on such a question, that the term incumbrance does embrace judgment liens. Jenkins vs. Hopkins, 8 Pick., 346; Smith vs. McCampbell, 1 Blackf., 100; Hall vs. Dean, 13 John., 105; and we have not been able to find anything in any of the numerous conditions and stipulations of the policy, which, by any fair construction, will justify the restricted meaning- attempted to he assigned to the term by the plaintiff in this case.

The condition in the policy is a substantia] and important one for the protection of the company, and there is no good reason to suppose that judgment lien's were not as much within the object of the provision as any other incumbrance. The great purpose of all such provisions in policies of insurance is to enable the insurer to determine the extent of the risk, and the nature and extent of the interest of the. insured in the premises. If the property to be insured is incumbered by judgments, mortgages, or liens for unpaid purchase money, it is always of importance for the insurance company to he informed of the fact, as upon the existence or non-existence of real interest and motive on the part of the insured to protect and preserve the property, the premium for insurance may justly be regulated. This is a substantial element in the contract of insurance; and there is no good reason for the restricted construction of the clause contended for by the counsel of the plaintiff. Clauses of a similar im*632port to the one under consideration, have heen construed by the Supreme Court of Pennsylvania, and that Court has held, without the slightest hesitation, that judgment liens are incumbrances within the meaning of the condition. Brown vs. Com. Mid. Ins. Co., 41 Penn., 187 ; Penn. Ins. Co. vs. Gottman, 48 Penn., 151; Gottman vs. Penn. Ins. Co., 56 Penn., 210.

As to what would be the effect on the policy of a judgment rendered against the insured in invitum, it is not now necessary to determine; hut as to judgments in existence at the date of the policy, and such as are thereafter rendered against the insured, by his consent or confession, and which constitute liens on the property insured, we think they are clearly within the meaning of the condition. And as the plaintiff wholly failed to make known the existence of the judgment liens, on the property at the time he applied for and obtained the policy sued on, it follows from what we have said, that the policy is void, according to the express stipulation of the parties.

3. The third and last question presented is, whether, as part of the insurance was on the building, and part on the machinery therein, it was competent to the plaintiff to recover on the policy such amount as was apportioned to the machinery, notwithstanding the policy is void as to the building?

In regard to this question, the difficulty in the plaintiff’s way is, that the contract is entire. The consideration for it was entire; and in such case the contract is held to be entire, although its subjects may consist of several distinct and wholly independent items. Moreover, the stipulation in regard to the forfeiture, applies to the policy as an entirety. This question is settled in this State, as it is in many of the other States, adversely to the right claimed by the plaintiff here. Assum vs. Asso. Fire Ins. Co., 5 Md., 165; Gottman vs. Penn. Ins. Co., 56 Penn., 210; Friesmuth vs. Agawam Ins. Co., 10 *633Cush., 570; Brown vs. People’s Mut. Ins. Co., 11 Cush., 280 ; Lee vs. The Howard Ins. Co., 3 Gray, 583 ; 2 Parsons on Contracts, 31.

(Decided 25th June, 1874.)

Finding no error in the rulings of the Court below, its judgment will be affirmed.

Judgment affirmed.