Carey v. Home Insurance
66 N.W. 920
Iowa
1896
Check Treatment
Given, J.

I. Appellee contends that appellant’s abstract fails to show that the evidence was properly preserved, and that all the evidence is before this court. We will not consume space to discuss this contention, further than to say, that while it is true that appellant’s abstract is somewhat confused, and difficult to understand, we think it sufficiently appears therefrom, that the evidence before us was duly certified, and is all the evidence offered or introduced on the trial. Appellee filed an additional abstract, which appellant denies, and moves to tax the costs of the transcript to appellee. Since it is largely by the aid of the transcript that we are able to understand appellant’s abstract, this motion is overruled.

II. There is no question but that the dwelling house intended to be insured, and that was destroyed by fire, was situated on the south half of the section 10 named, instead of the north half, as written in the policy. Plaintiff asks that the policy be reformed, and *622made to conform to the intention of the parties. “Before a written instrument can be reformed on the ground that there was a mistake in the drafting of it, the evidence that there was a mistake should be clear, satisfactory, and free from reasonable doubt.” Wachendorf v. Lancaster, 61 Iowa, 509 (14 N. W. Rep. 316, 16 N. W. Rep. 538). We will not set out the evidence on this branch of the case. It is sufficient to say that it shows, beyond doubt, that the error in the description of the land in the policy occurred by mutual mistake of the parties, and that the description intended was the south half of the section named, and not the north half, as written. The plaintiff has established his right to a reformation of the policy, in this respect, beyond a reasonable doubt.

1 *6232 *622III. The policy contains this provision: “If the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the assured, it must be so represented to the company, and so expressed in the written part of this policy; otherwise the policy shall be void.” The facts are that the title to the property was formerly in the plaintiff, and that during that time appellant issued to him a policy of insurance thereon against loss by fire. The property was the homestead of plaintiff and his wife, and they continued to so occupy it until the house was destroyed. Prior to the issuance of the policy sued on, the plaintiff conveyed said property to his wife. Appellant contends that, because of this conveyance, the policy is void, under the clause quoted above. The policy sued upon was issued on the verbal request of Mrs. Carey, at the instance of the mortgage company, and in renewal of the former policy, which had expired. Three witnesses testify positively that, at the time the request was made, appellant’s agent was informed that the *623title was theh in Mrs. Carey, while the two agents present say they have no recollection of such a statement. It was certainly reasonable .that the fact should be stated, and we think the evidence shows that it was. The draftsman, no doubt, referred to the former policy, in drawing this, and, overlooking this information, did not state the fact as to the title as it then was. It is not questioned but'that “knowledge of the agent writing the insurance is the knowledge of the company, in so far as to conform the application to the truth.” It is conceded that the agent is bound to state the truth in the application, and, if he does not, the truth may be shown. Siltz v. Insurance Co., 71 Iowa, 710 (29 N. W. Rep. 605); Key v. Insurance Co., 71 Iowa, 174 (41 N. W. Rep. 614). The rule is alike applicable to a policy as to an application. The application becomes a part of the contract, and the rule applies to the writing of the contract, whether in the form of an application, or of a policy. The policy must be taken to be as if written according to the facts concerning the title.' The property insured being the homestead of the plaintiff, he had an insur-

able interest therein. Reynolds v. Insurance Co., 80 Iowa, 563 (46 N. W. Rep. 659); Merrett v. Insurance Co., 42 Iowa, 13. Appellant, with knowledge, through its agent, of the true state of the title of the insured property, and that it was not entirely unconditional and sole, issued this policy to plaintiff, who had an insurable interest in the property. In Lamb v. Insurance Co., 70 Iowa, 238 (30 N. W. Rep. 497), it is said: ■ ‘The defendant knew, when issuing the policy, that the assured did not own the fee-simple title to the real estate; and it knew precisely what title he had, and, so knowing, issued the policy. If there was a false statement, the defendant so knew, and must be held to have waived the conditions of the policy in this respect” That policy contained the same condition *624as to title as this, and that case seems to us decisive of the question under consideration. In McMurray v. Insurance Co., 87 Iowa, 453 (54 N. W. Rep. 354), it is said: “The failure of the policy to state correctly the title of the plaintiff was due wholly to the fault of the defendant, and it will not be permitted to escape liability on account of it.” Such are the facts in this case, and they lead to the same conclusion. The plaintiff had an insurable interest in the property, which the appellant insured to him, and his right to recover will not be defeated by the fault of the defendant to state the title correctly.

3 IV. Appellant contends that as no reformation of the policy is asked, as to ownership of the insured property, parol evidence is not admissible, to change terms of the policy, under the familiar rule that parol evidence is not admissible to vary or contradict a contemporaneous written contract. By introducing the policy in evidence, and proving the loss, and that notice and proofs of loss had been made as required, the plaintiff made out his case. Defendant seeks to defeat recovery by showing that plaintiff had not “tbe entire, unconditional and sole ownership of the property,” for that the title was in his wife. The plaintiff, in reply, shows that the defendant was correctly informed as to the title, but failed to write it in the policy according to the fact, and correctly claims that appellant is therefore estopped from,, asserting this defense. Surely appellant should not be permitted to profit by its own fault, in not writing the policy according to the fact as it was known to it.

*6254 *624V. In connection with said provision as to title, the policy contains the following: “When property has been sold and delivered, or otherwise disposed of, so that all interest or liability on the part of the assured herein named has ceased, this insurance on *625such property shall immediately terminate. * * In case the use or occupation of the above-mentioned premises, at any time during the period for which this policy would otherwise continue in force, shall be so changed as to increase the risk thereon, except as may hereafter be agreed to by this corporation in writing upon this policy, from henceforth, so long as the same shall be so used, this policy shall be of no force or effect.” On the twenty-third day of February, 1891, plaintiff and his wife signed a title bond to Gr. E. Baker, conditioned that, upon payments by Baker as specified, they would convey to him the land described, including that upon which the insured house stood. The bond provides, “possession to be given on the 1st day of March, 1891, excepting twenty acres of farm land on the east side of the road right south of the house and the hog pasture.” This transaction was without notice to, or consent of, the appellant, and it is contended that because thereof the insurance then terminated. The dwelling house was situated on the twenty acres, and, with the twenty acres, remained in the possession of the plaintiff and his wife until the fire. If it may be said that the house and twenty acres were sold, they were surely not delivered, “so that all interest or liability on the part of the assured herein named had ceased,” nor had there been any such change of occupation as to increase the risk. The evidence shows that, after said bond was signed, Baker, without the consent of Carey or his wife, interlined therein these words: “Possession of the farm land and hog pasture to be given March 1, 1892.” Even if this was with the consent of Mr. and Mrs. Carey, it left to them the possession of the. insured property. We will not discuss the evidence relating to this bond. It is sufficient to say that we are satisfied that the parties to it never regarded it as binding between them, and *626that there was no such sale and delivery, or change of occupation, of the insured property, as to have terminated this insurance.

5 VI. This policy provides that “all fraud or attempted fraud, by false swearing or otherwise, shall ’ cause a forfeiture of all claim on this company under this policy.” Appellant contends that, in his .proofs of loss, plaintiff swore falsely that “he was the owner of the property, when he was not,” and that thereby he forfeited all claim on appellant. The forfeiture here provided is not for false swearing, but for fraud by false swearing or otherwise. Even if plaintiff had sworn that he was the owner of the property when he was not, it would not follow, under the facts, that a fraud was intended, or would have resulted. The facts are that the proofs were made upon a printed blank furnished by appellant, which contained this inquiry: “If the loss' is on building, state whether real estate is owned in fee-simple, or held on lease.” To this plaintiff answered: “The building was owned in fee-simple, and was the homestead of Aden Carey and wife.” We do not think it can be fairly said that, in so stating, plaintiff intended to commit a fraud on appellant. Our conclusion upon the whole record is that the decree of the district court should be affirmed.