Hicks v. Farmers' Ins.

71 Iowa 119 | Iowa | 1887

Beck, J.

The policy in suit contains a condition that it shall become void “ if the property insured be sold, or any change tahe place in the title thereof, or if the property or any part thereof, hereafter in any manner whatever incumbered.” The answer alleges that plaintiff, after the execution of the policy, and before the fire, incumbered the property insured by executing on his interest therein, which was one-third, a mortgage, etc., and that it was incumbered during the same time by a judgment against plaintiff, which became and has remained a lien on the property. It is shown by the pleadings that the policy was issued to a firm of which plaintiff is a partner, and that the policy, after the loss, was assigned to him. The plaintiff demurs to the answer, on the ground that the mortgage and judgment, having been executed and rendered while plaintiff was one of the partners to whom the policy was issued, do not constitute a breach of the condition of the policy. The property insured was an office building and furniture therein. The .answer alleges that plaintiff held a one-third interest therein, and that it was incumbered by the mortgage and judgment. Surely, under these allegations, defendant would be permitted to show both a mortgage and judgment incumbrance upon plaintiff ’s interest in the property. And that the mortgage and judgment, as they are set out in the answer, would incumber plaintiff ’s interest in the property, there can be no doubt. The petition alleges that plaintiff owned one-third of the property, and that the mortgage was executed upon that interest, and the judgment was rendered while he owned it. That liens were created as against the realty is very plain. Their extent or the manner of their enforcement need not be a subject of inquiry.

The case, in our opinion, was rightly decided by the court below.

Affirmed.