58 Neb. 504 | Neb. | 1899
Rebecca N. Newman brought this action against the Farmers & Merchants Insurance Company to recover on a policy of fire insurance covering a dwelling-house owned by John M. and Angeline Crain. The court directed the jury to find for the plaintiff, and from a judgment rendered on the verdict the defendant prosecutes error.
Mrs. Newman had a mortgage on the insured property to secure an indebtedness of $750, and for her benefit the company had attached to the policy a slip in the usual form, malting the loss, if any, payable to the mortgagee as her interest might appear. The action was defended mainly on the ground that the property, before its destruction, ' had become involved in litigation, and that the right to indemnity had been thereby lost under the operation of the following condition of the contract: “If the assured shall have, or shall hereafter take, any other insurance on the property hereby insured, or any part thereof, without the consent of the company, written hereon; or if the property above mentioned, or any part thereof, be, or hereafter become, mortgaged or otherwise incumbered, or if the same be, or shall hereafter become, involved 'in litigation without notice to and consent of this company indorsed hereon, * * * then and in every such case this policy shall be void.” It appears from the record that Mrs. Newman’s mortgage was a second lien on the property in question; that she had been made a party defendant in an action brought to foreclose the first mortgage; that she had answered therein asserting her lien; that a decree of foreclosure had been rendered on both mortgages, and that a stay had been taken and was effective at the time of the fire.
It is also urged on behalf of the defendant that the policy was forfeited by reason of an unauthorized increase in the amount of the plaintiff’s mortgage. This alleged increase consisted merely in a change in the form of the security. The incumbrance was not in fact augmented.
A further and final contention is that the owners of the property obtained additional insurance in violation of the terms of the policy. In regard to this defense it need only be said that it was not established on the trial. It
Affirmed.