41 So. 5 | Miss. | 1906
delivered the opinion of the court.
The insurance company sought to defeat recovery of a fire loss because of two clauses in the policy, declaring that it should be void: (1)’ “If the interest of the insured be other than unconditional and sole ownership;” (2) if the building “be or become' vacant or unoccupied, and so remain for ten days.”
As to the first, the facts are that at the date of the policy Pitts was in possession under a conveyance of title in fee simple. But the conveyance recites a cash payment of $200 and four deferred annual payments of $200 each. It does not expressly reserve a vendor’s lien to secure the deferred payments, but our law gives that. It is to be noted in this record that there was no written application for the insurance, nor any representations made. The policy was issued pursuant to telephonic request to an agent, and so-the reliance of the company is on the terms of the policy itself, with no pretense of any misrepresentations. We have no
• On the second contention the facts are that, pending the policy, the premises were at one time vacant for more than ten days, but actual possession was resumed, and some time afterwards, and while occupied, the fire occurred. If the loss had occurred during the prohibited vacancy, there could be no recovery. This is everywhere held, and so decided by our own court in Insurance Co. v. Scales, 71 Miss., 975 (15 South. Rep., 134). Authorities are not wanting to sustain the views of learned counsel for appellant, and they are sustained also by Mr. Ostrander on Fire Insurance (2d ed., 1897), sec. 145, and the numerical weight of..the decisions he cites in note 5. We prefer to stand on the manifest
Affirmed.