74 Ind. App. 449 | Ind. Ct. App. | 1920
This action was by appellee against appellant on a Farmers Mutual Fire Insurance policy to recover damages for loss by reason of the destruction by fire of a frame farm residence and household goods therein. There was a trial by jury, and a verdict of $450 in favor of appellee; a judgment followed the verdict from which, after motion for a new trial was overruled, this appeal is prosecuted.
The only error relied upon for reversal that is properly assigned is the action of the court in overruling the motion for a new trial.
By §20 of the by-laws of appellant that were made a part of the contract of insurance, which contract was made a part of the complaint and was also, read in evidence, it is provided:
“If without the consent of the company in writing the property insured shall be sold or conveyed,*451 or the interest of the parties therein be changed in any manner, whether by act of the parties or by the operation of law, then in every such case and in either of said events the policy shall cease to be in force and effect.”
It is claimed by appellant that after the policy was issued appellee sold the property to one Meyer and placed such purchaser in possession thereof,, and that thereby the policy ceased and became of no force and effect.
It appears by the undisputed evidence in this case that on March 12, 1917, appellee’s wife and Henry C. Meyer and wife met at the Peoples Trust and Savings Bank of Laporte, Indiana, at which time H. H. Keller, secretary-treasurer of that institution, wrote for them a contract for the sale of the real estate upon which the building involved in this controversy was located, the consideration therefor being $3,800. This contract is not in evidence, though it was made in duplicate and left in the control of the parties involved in the real estate deal, one copy being made for the Olsons and one for the Meyers. It appears that one of the copies, or another copy, was kept with Keller in the bank. It does not appear by the direct evidence that this contract was signed by appellee. It does appear, however, that such contract was accepted by appellee, for at the time that the same was prepared a deed of conveyance was prepared, and, having been signed by appellee’s wife, it was sent to appellee for execution, and on April 9, in a letter inclosing it to Mr. Keller, who was acting for both parties, he stated that he understood that the interest on the deferred payments started from the date that the contract was made or date of sale. On said March 12, 1917, Mr. Meyer, appellee’s grantee in the deed, stated that “after we come to an agreement I left $600 for good faith.” The $600 referred to was
It seems that an abstract was furnished by appellee to the purchasers, and that it was in their possession at the time of the fire and was destroyed by fire. It does not appear that this abstract in any way figured further in the deal. It will be observed that the deed and mortgage, both duly executed and acknowledged, and the $1,800 subj ect to the order of appellee, were all in the hands of the common agent before the time of the fire. There was nothing further to be done, and nothing further was done, except to deliver the papers and money, to the respective parties entitled thereto.
Keeping before us the provision of the policy that, if the property insured be sold or conveyed, or if the interest of the parties therein be changed in any manner, the policy should become void and of no effect, we proceed to determine whether the transaction hereinbefore set out constituted such a change of interest of the parties as to make the policy without force and effect.
In the case of Brickell v. Atlas Assurance Co. (1909), 10 Cal. App. 17, 101 Pac. 16, it was held that where under a policy of fire insurance providing that the policy shall be void if any change takes place in the interest, title, or possession of the subject of insurance, the contract for the sale and purchase of the insured premises transferring possession to the purchaser under fixed terms of payment, without any transfer or assignment of the insurance policy, or without the consent of the insured, vitiates the policy and no recovery can be had thereon. The court in its discussion of the case says that there is a distinction between the word “interest” and the word “title,” the word “interest” being broader and more comprehensive.
In Fire Assn., etc. v. Perry (1916), (Tex. Civ. App.) 185 S. W. 374, it was held that under a policy of fire
The case of Wiley v. London, etc., Ins. Co. (1914), 89 Conn. 35, 92 Atl. 678, holds that a provision avoiding a policy in case of change of the insured’s interest is valid, being reasonable because affecting the moral hazard.
Phoenix Ins. Co. v. Quinette (1912), 36 Okla. 384, 128 Pac. 722, holds that a conditional sale of an insured stock of merchandise reserving the title until the price is paid is a change of interest within the provision avoiding the policy in case of such change.
In the case of Gibb v. Philadelphia Fire Ins. Co. (1894), 59 Minn. 267, 61 N. W. 137, 50 Am. St. 405, there was a provision in the policy as follows: “ ‘This entire policy, * * * shall be void * * * if any change other than by the death of an insured take place in the interest, title, or possession of the subject of insurance * * In that case appellant by the contract of sale in writing sold the premises involved to one Kelly for $2,500 subject to a mortgage of $1,200, $300 cash, and the remainder in installments of $50 every sixty days.until paid, said Kelly to.have possession of the premises with an agreement that in the event of any default appellant should have possession at his option. Kelly entered into the possession of the building and premises and occupied the same until the time of the fire without default in payment. It was. held by the court that there was a breach of the condition of the policy and therefore no right of recovery thereon. The court held in substance that, where the condition is against any change in the title, there is no breach unless there is a change in the legal title; that, as long as the insured retains the legal title and the insurable interest in the premises, the policy is not voided by
In the last case cited the same provision is found as in the case of Gibb v. Philadelphia Fire Ins. Co., supra. By the contract of sale it was provided that: “ ‘The first party is to furnish said second party a complete abstract of title to said property showing a perfect title in said first party, which title is to be passed upon and approved by the attorney of said second party. * * * Said first party is to have not to exceed sixty days to complete said abstract and perfect said title and prepare and furnish said warranty deed and bill of sale. When said first party perfects his title and makes and delivers a good and sufficient warranty deed of said real estate and a bill of sale conveying and transferring all of said property to said second party free from all in
The rule is stated as follows in 14 R. C. L., §297: “In the absence of any provision on the subject the execution by the insured of an executory contract for the sale of the insured premises does not void the policy. Even under the usual provision voiding the policy for an alienation, or change of title or interest, the delivery of the deed in escrow, or the execution of a contract of sale, possession being retained by the vendor, does not, according to the prevailing view, avoid the policy, though authority may be found to the contrary. Where, however, possession is -delivered to the vendee under such a contract there is a change of title or interest.” Numerous authorities are cited sustaining the principles above quoted.
In 10 R. C. L. §20, the following statement as to when an instrument such as a deed in this case becomes operative is stated: “Some courts hold that an escrow does not take effect as a fully executed deed until there has been a rightful delivery to the grantee; but the more logical position * * * is that upon the happening of the event or the performance of the condition upon which manual delivery should be made by the depositary to the grantee, although not in fact a physical delivery to him, a deed theretofore in escrow becomes ipso facto the deed of the grantee in whom the title vests, and that thenceforth the depositary or holder is regarded as the mere agent or trustee of the grantee.” Numerous authorities are cited. Applying these principles to the case before us, we must hold that after the policy was written and before the fire there was such a change not only of the interest but of the title and of the possession of the real estate, including the dwelling house involved, as invalidated the policy.
The judgment is reversed, with instructions to the trial court to grant a new trial.