32 Neb. 645 | Neb. | 1891
This aption was brought in the district court by the plaintiff as trustee for the owners, otherwise called “the syndicate,” of Highland Park addition to the city of Beatrice, against the insurance company, upon a policy, of insurance issued by the defendant company upon a dwelling house. The petition is in the usual form. The answer sets up several defenses; among the rest, and the only one deemed necessary to particularly refer to here, is, that “ in violation of article or section twelve (12) of the policy, plaintiff sold the said property to George and Francis Johnson without obtaining consent to such sale, indorsed on the said policy in writing, contrary to article fifth (5)
Plaintiff, by reply, denied that he alienated the property insured contrary to the provisions of the article five (5) of said policy, but that the plaintiff did enter into a written agreement in which plaintiff contracted to sell said property to one George Johnson.” A copy of the said agreement is set out in the replication, which I herewith copy.
“Articles of agreement made this 22d day of February, 1888, between J. S. Grable, trustee, of the first part, and George Johnson and Francis Johnson, of the second part, witnesseth: That the said party of the first part has this day bargained and sold to the said party of the second part, the following described real estate, situate in the county of Gage, and state of Nebraska, to-wit: (describing the property), for the sum of eight hundred and fifty dollars, one hundred dollars of which has been paid in hand, the receipt whereof is hereby acknowledged. The remaining principal, with accruing interest at the rate of ten per cent per annum, payable annually, shall be paid at the office of Grable & Davis, Beatrice, Nebraska, at the times and in the manner following, that is to say:
*648 “Now, if the said party of the second part shall pay the same as above set forth, time being of the essence of this contract, and shall pay all taxes and. assessments, whether special or general, which may become due on said real estate for the year 1888, and thereafter until the above payments are all made, then said party of the first part shall, at his own cost, execute and deliver to the said party of the second part, or his assigns, upon the surrender of this contract, a warranty deed to the above described premises.
“And it is further agreed, that in case any payment, either of principal or interest, remaining unpaid for the space of thirty days after the same shall become due, then and in that case the whole amount unpaid on this contract shall become due and payable, without further notice; and such delinquency in payment, or the -failure in other inspects by the party of the second part to perform the stipu-t lations of this contract, or any of them, shall entitle the said party of the first part to the immediate possession of the premises described herein, and the party of the second part shall forfeit all payments made under this contract.”
Signed by the parties and witnessed.
There was evidence at the trial, given by the plaintiff himself when on the stand as a witness on his own behalf, upon his cross-examination without objection, that Johnson went into the possession of the property under the said contract and was in possession at the time of the fire and loss.
The policy upon which the action was brought and which was introduced in evidence upon the trial contains the following clause : “Y. When property insured by this policy, or any part thereof, shall be alienated, or incumbered, or in case of any transfer or change of title to the property insured, or any part thereof} or of any interest therein, without the consent of the company indorsed hereon, or if the property hereby insured be levied upon, or taken in possession or custody under any legal process, or if the
At the trial the court upon its own motion charged the jury as follows :
“ 1. This defendant has no defense to this action except upon that clause of the policy wherein it is provided that ' where property insured by this policy, or any part thereof, shall be alienated or incumbered, or in case of any transfer or change of title to the property insured, or any part thereof, or any interest therein, without the consent of the company indorsed thereon, * * * this policy shall at once cease to be binding upon the company/
“ The evidence is uncontradicted that the contract, a copy of which is attached to the reply, was made by plaintiff with the second party therein named, to whom the possession of the property was transferred, and who held possession until- the fire and at that time was not in default under his contract, and that no consent was given by defendant or. indorsed on the policy. In short, there is no conflict of evidence on this branch of this action wherein defendant founds a defense upon the above mentioned provisions of the policy. The court being of the opinion that the uncontradicted evidence on this subject shows a transfer or change of title to the property insured, or an interest therein, without the consent of the company indorsed thereon, there is nothing for you to do, but to return a verdict for the defendant, and you are so instructed.”
Under this instruction there was a verdict for the defendant, which being followed by a judgment for defendant, the cause is brought to this court on error by the' plaintiff, and the giving of the above instruction is the principal error assigned.
The case of Mill v. The Cumberland Valley Mutual Protection Co., 59 Pa. St., 474, is in the same line. In that case the policy contained a clause providing “that if the insured property should be alienated by sale or otherwise,” and if it should “be transferred by any contract or change of partnership or ownership,” the policy should be void.
The above authority and cases have been followed by those of The Washington Fire Ins. Co. and Atlantic F. & M. Ins. Co. v. Kelly, 32 Md., 421; Kempton v. State Ins. Co., 17 N. W. Rep. [Ia.], 194, and many others cited by counsel for plaintiff in error.
It is not to be denied that there are respectable authorities and cases holding the reverse view, notably the case of Davidson v. Hawkeye Ins. Co., 32 N. W. Rep. [Ia.], 514. The opinion in this case is by a divided court, and while it is ably argued, I do not think that it overturns the authority of the cases on the other side above referred to. The principle governing the great majority of the cases is, that while the assured retains the policy and an interest in the property equal to its value, together with the legal title, when the property is destroyed he can recover for its loss against the insurance company, notwithstanding a clause in the policy providing that upon the alienation of the insured property by the assured, the policy should be void. In many of these cases the possession of the property remained in the assured at the date of the loss, but in none of them has that fact been considered of controlling importance.
Reversed and remanded.