Continental Ins. Co. v. Brown

106 So. 633 | Miss. | 1926

^* Corpus Juris-Cyc. References: Appeal and Error, 4 CJ., p. 809, n. 32, 33; Granting or refusal of continuance rests in discretion of court, see 6 R.C.L. 544; 2 R.C.L. Supp. 153; 4 R.C.L. Supp. 425; 5 R.C.L. Supp., 354; Continuance, 13 CJ., p. 123, n. 14; p. 149, n. 56; Fire Insurance, 26 CJ., p. 240, n. 54; Levy of execution, attachment, or other process upon insured property as change in interest, title or possession, see note in 24 L.R.A. (N.S.) 803; 14 R.C.L., 1124, 3 R.C.L., Supp., 345. The Continental Insurance Company of the city of New York appeals here from a judgment based upon a fire insurance policy issued by it in favor of Albert Brown covering a certain house against loss by fire, the policy being made an exhibit to the declaration. The defendant company pleaded the general issue, and gave notice under the issue, first, that they would show that the plaintiff was not entitled to recover because the following provision of the policy had been breached, to-wit, "This entire policy, unless otherwise provided by agreement indorsed herein or added hereto, shall be void if . . . if the hazard be increased by any means within the control or knowledge of the insured, . . . or if the interest of the insured be other than unconditional or sole ownership," and charged that the house, for the loss of which by fire suit was brought, had been sold for taxes due the Indianola separate school district for 1923, said sale having taken place on June 2, 1924; that by said sale Albert Brown was divested of his fee-simple title to said property, and was not the sole and unconditional owner of said property at the time of the issuance of the policy sued on.

Notice was further given that said tax sale increased the hazard and thereby violated this condition of the policy, which is as follows:

"This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void . . . or if change other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise."

They further gave notice that they would show that the following clause of the policy sued on had been violated, to-wit:

"This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void . . . or if change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise."

They said this clause was violated because the plaintiff, some months before the fire, moved his family out of said house, together with his goods, to the state of Kansas, and shortly thereafter moved tenants into the said house, said tenants occupying the same until the time of said fire.

Upon the trial it developed that the tax sale above referred to was on June 2, 1924, and that the agent had been writing insurance policies on this particular house before the date of the policy here involved, and that this policy was a renewal policy, dated September 23, 1924, some three months after the tax sale. However, the father of Albert Brown testified that he attended to the matter of insuring the house with an insurance agent, a Mr. Robb, and that Mr. Robb knew in September, 1923, that Albert Brown, the plaintiff, lived in Kansas City, and that he paid the premiums for Albert Brown and mailed the policy, which had been delivered to the witness by Mr. Robb, to his son; and that he told Robb that Albert had gone to Kansas City, and that the house was rented out.

The record of the tax sale was also offered in evidence.

The appellant, the insurance company, assigns as error: First, the refusal of the court to grant it a continuance on account of the absence of the witness Robb. We again repeat that the granting or refusal of continuances are matters within the sound discretion of the trial court; unless it is clear that this discretion has been abused, we will not reverse for that cause, and in this cause we do not think the trial court abused its discretion in overruling the motion for a continuance. In this same connection, as there was no testimony offered to contradict the father of the plaintiff as to a waiver by the agent, and that testimony standing uncontradicted in the record and not being seriously urged in the briefs, we will not consider that assignment of error further. Second, it is strenuously urged by counsel that the clause of the policy quoted above, as to the interest of the insured being other than sole or unconditional, is binding on the plaintiff because of the tax sale, and, therefore, that a peremptory instruction should have been given the defendant.

Counsel cites a number of cases from other states, and especially calls our attention to the case of Imperial FireInsurance Co. of London v. Coos County, 151 U.S. 452, 14 S.Ct. 379, 38 L.Ed. 231. It is sufficient to say that this case, in the light of our own decisions, would not be considered as being in point, because it involves an increase of the hazard because of the employment of mechanics without notice to or permission by the insurance company to so have mechanics make repairs, and we do not think this case is in point in view of the decisions of our own court.

The counsel also urges, with great zeal, the case of Perrin v. Stuyvesant Insurance Co., 140 La. 812, 74 So. 110, dealing expressly with a tax sale of property covered by fire insurance with reference to this particular clause of the policy, and this case and other Louisiana cases are authority for counsel's position that a tax sale will void the policy where the loss occurs during the period of redemption. And the Louisiana court held that under such state of facts the title was conveyed, but we agree with that court when they say that these grounds for voiding the policy "appear narrow," and the cases cited do not convince us that we should overrule the general policy and tendency of this court as outlined in practically all of our insurance decisions, and the established rule announced by this court in the case of Mechanics' Traders' Insurance Co. v.Boyce, 114 Miss. 165, 74 So. 821, L.R.A. 1917E, 328, wherein the court on this subject, said:

"We do not think, under the facts of this case, a sale of the premises for taxes was a breach of the covenants of the policy. The two years within which the property might be redeemed had not expired, and the inchoate right or title of the tax purchaser had not ripened into a good title. . . . He would not be entitled to possession, and would in fact own no title, until the time for redemption under our revenue laws had expired."

This decision is in point as we see it, and the fact that there was a mortgage clause involved in that case does not present any different state of case from the case here presented, and the court there correctly held that the purchaser at the tax sale during the period of redemption had obtained no title, and his title only ripened after the expiration of the two-year period of redemption.

The rule is well stated in 14 R.C.L., p. 1124, as follows:

"Levy or sale under legal process. A condition avoiding the policy in case of the sale of the insured property is not violated by a judicial sale of the property and its confirmation, if payment of the purchase price is not made and no bill of sale is executed, or where a sale has not been confirmed, which is necessary to pass title. The fact that insured goods are levied on does not avoid a policy containing no provision on the subject, nor is such a levy without change of possession a violation of a provision against alienation so long as the debtor has a right of redemption, or where the sale is void, for it is a well-established rule of law that a judicial sale of insured property is no such change in title, interest or possession as will defeat a recovery on a policy of insurance which provides that it shall be avoided if such change occur, where there is left in the owner of the property an equity of redemption, and the loss occurs before the expiration of the period of redemption. Policies frequently provide that a forfeiture shall follow any change in the interest, title, or possession, whether by legal process or judgment or by the voluntary act of the insured. Such a provision applies to an involuntary change of possession by legal process as well as to a voluntary change, resulting from the action of the assured himself, and a writ of attachment is `process,' within such a provision. Even under such a provision, however, where the debtor remains in possession of the property and has a right of redemption there is no breach, nor does a levy without change of possession violate such a provision."

We decline to overrule the Boyce case, and find no reversible error in this record.

Affirmed.