48 Neb. 743 | Neb. | 1896
September 1, 1888, William G-. and Conrad Bohn were tbe owners in fee-simple of a lot in tbe city of Ornaba on wbicb was situated a tbree-story building. On that date they were indebted to tbe National Life Insurance Company of Montpelier, Vermont, hereinafter called tbe “Life Insurance Company,” in tbe sum of $25,000, and to secure
1. The alleged errors relied on for a reversal of this judgment may all be considered under the proposition whether under the proved and admitted facts the judgment is contrary to the law of the case. Prior to the date of the issuance of the policy in suit the Bohns sold and conveyed the real estate on which was situate the
A question almost identical with the one under consideration was before this court in Phenix Ins. Co. of Brooklyn v. Omaha Loan & Trust Co., 41 Neb., 834. The policy in that case provided that if the property should be sold or transferred without the written permission of the fire insurance company indorsed on the policy, then that the policy should become void. There was attached to the ])olic;y a “mortgage clause” like the one in the case at bar. Before the loss occurred the mortgagor sold and transferred the property, the consent of the fire insurance company thereto not having been obtained. The insured property was destroyed by fire, and the mortgagee sued the fire insurance company for the amount of the loss. It was insisted by the fire insurance company that as the mortgagor had sold and conveyed the insured property prior to the loss, that at the date of the loss the policy was not in force; but the count held that the sale and conveyance of the mortgaged property by the mortgagor without the consent of the insurance company did not avoid the policy as against the mortgagee. We have reexamined that case and the authorities therein cited, and are satisfied that the decision is correct, both upon prin
The provision in the policy, that it should be void if the subject of the insurance was a building on ground not owned by the assured in fee-simple, was not one that was. binding or intended to be binding on the Life Insurance Company, mortgagee. The Eire Insurance Companies must have known when they issued the policy in suit with the mortgage clause attached thereto that the Life Insurance Company did not own the fee-simple title of the real estate on which the insured building was situate. The Life Insurance Company was not attempting to insure a fee-simple interest in the mortgaged property, nor did the Fire Insurance Companies understand that the former was attempting to insure anything further than the interest it had in the property by virtue of its mortgage. All the authorities agree that a mortgagee of real estate has an insurable interest therein which he may insure on his own account, and when he effects such insurance he is insuring not the real estate, but insuring his interest or lien therein. The terms “interest” and “title” are not synonymous terms in insurance policies, and the provisions in the policy under consideration, that it should be void if the interest of the assured should be other than the entire unconditional and sole ownership of the property, meant and means, not that the Life Insurance Company should be the owner of the legal title to the real estate on which the insured building was situate, but that the interest which it insured, namely, its mortgage lien upon the property, should be and was an unconditional interest belonging to it, not a contingent or speculative one.
2. After September 1,1888, and before the issuance of the policy in suit, without the knowledge or consent
3. But it is insisted that the policy sued upon was never in force because the Bohns at the date of its issuance were not the unconditional and sole owners of the insured property and that the insured building was not situated on ground to which the Bohns had a fee-simple title. This contention involves the assumption that the Bohns at the date of the issuance of the policy in suit had no insurable interest in the insured property. Is this contention correct? What is an insurable interest? In German Ins. Co. of Freeport, Ill., v. Hyman, 34 Neb., 704, Post, J., speaking to this question, said: “An interest, to be insurable, does not depend necessarily upon the ownership of the property. It may be a special or limited interest disconnected from any title, lien, or possession. If the holder of an interest in property will suffer loss by its destruction he may indemnify himself therefrom by a contract of insurance. If, by the loss, the holder of the interest is deprived of the possession, enjoyment, or profit of the property, or a security or lien arising thereon, or other certain benefits growing out of or depending upon it, he has an insurable interest.” To the same effect see Merrett v. Farmers Ins. Co., 42 Ia., 11; Rochester Loan & Banking Co. v. Liberty Ins. Co., 44 Neb., 537. In Warren v. Davenport Fire Ins. Co., 31 Ia., 464, it was held: “The-owner of stock in a corporation organized for pecuniary profit has, by reason of such ownership, an insurable interest in the corporate property.” In Williams v. Roger Williams Ins. Co., 107 Mass., 377, it was held that a mortgagee who had indorsed the note secured by his mortgage and become liable as an indorser on said note had an insurable interest in the mortgaged property. The court said: “It is now well established that even one who has no title, legal or equitable, in the property, and no present possession or right of possession thereof, yet has
Was the policy in suit never in force because at the date of its issuance the Bohns were not the owners of the legal title to the real estate upon which were situated the insured building? It has already been stated that the Bohns owned the fee-simple title to this real estate when the policy was first issued, September, 1888; that the application for the insurance and the renewals of the insurance were oral; that no questions as to the title of the Bohns were ever propounded to them by the Fire Insurance Companies or their agents; that neither of the Bohns ever made any representations to the Fire Insurance Companies as to what title they had or held; that the Bohns were not actuated by any sinister motives whatever in not disclosing the nature of the interest they had in the insured property; that no fraud was attempted by any one, and that the failure of the Bohns in September, 1890, to disclose the exact nature of their interest in the insured property resulted either from their not thinking about it, or from the failure of the Fire In
4. As already stated, the loss sued for in this action
Counsel for plaintiff in error indulges in certain criticisms upon some of the instructions of the trial court, but these call for no special notice. The judgment of the district court is right and is in all things
AFFIRMED.