27 S.E.2d 596 | W. Va. | 1943
This is an action on a fire insurance policy instituted in the Circuit Court of Boone County by L. C. Kirk, Jr., Emerson Kirk, infants, L. C. Kirk and Myrtle Kirk against Queen Insurance Company of America. At the close of the plaintiff's case, no evidence being offered by defendant, plaintiffs and defendant moved the court for a directed verdict in their favor. The trial court overruled the defendant's motion, sustained the plaintiff's *214 motion, directed a verdict for the plaintiffs in the sum of one thousand five hundred dollars, the face amount of the policy, overruled a motion to set it aside, entered judgment thereon, and defendant brings the case here on writ of error.
In the year 1937 J. B. Pauley and S. J. Pauley, his wife, conveyed three tracts of land to plaintiffs, on one of which the insured building was located, the deed of conveyance reading in part as follows:
*215"The said parties of the first part hereby reserve unto themselves a life estate in said lands for the life of each, to be used and possessed by them for and during the natural life of each, and it is understood and agreed that there is a dwelling house and also a store house or business building on said lands, and it is agreed that in the event the said party of the second part desires to and does move on said premises and to use the said store house for a mercantile business at any time he shall have this privilege and without liability for rent of same, however, it is agreed that there is a post office in said building, and that the parties of the first part shall have the rent on said post office building while used for a post office.
"It is further agreed that the party of the second part may use the farm as he may desire, except that the parties of the first part shall have the right to use the garden and truck patches around the house, above and below, during their joint lives. It is further agreed that the said party of the second part shall have the right to build a dwelling house or other houses on said land during the lives of the parties of the first part, and shall have the right to occupy the same free from rent.
"It is further agreed that the said party of the second part and his wife and family may have the right to move into the same dwelling house now occupied by the parties of the first part, and repair the same and that all may live and dwell together, in the event the said second party so desires.
"It is further agreed that at any time the parties of the first part cease to use said store building for mercantile purposes, the second part may take and use the same as he may desire".
S. J. Pauley, one of the grantors in the deed hereinabove mentioned, died on or about June 16, 1938. J. B. Pauley, the other grantor is still living, and occupied the insured building until May, 1939, when he moved elsewhere.
The defendant issued a fire insurance policy on August 4, 1941, in the amount of one thousand five hundred dollars covering the building situate on the real estate conveyed by the Pauleys to plaintiffs, no written application for such insurance being made. The policy contains among others the following provision: "This entire policy shall be void, unless otherwise provided in agreement in writing added hereto, (a) if the interest of the insured be other than unconditional and sole ownership; or (b) if the subject of insurance be a building on ground not owned by the insured in fee simple; * * *". The insured building was totally destroyed by fire on August 20, 1941, and was at the time of the issuance of the policy and the date of the fire occupied by tenants who rented the premises from the adult plaintiffs.
Defendant filed specifications of defense, alleging breaches of the provisions of the policy above quoted, and plaintiffs filed a verified written statement that the policy was issued by a duly authorized agent of defendant on oral application; that the agent was informed by L. C. Kirk, Sr., that plaintiffs had a deed for the insured premises; that L. C. Kirk was not questioned relative to the title and made no false statements in regard thereto; and that the policy was a renewal of former policies issued by defendant.
Defendant contends that the policy is void because the reservation in the deed from the Pauleys to plaintiffs constitutes a breach of the provisions thereof hereinabove quoted, and that plaintiffs' evidence was not sufficient to *216 show waiver of such provisions. Plaintiffs' contention is that the stipulations contained in the deed from the Pauleys to the plaintiff, hereinbefore quoted, virtually eliminated the reservation of the life estate made therein; that there was no such estate owned by J. B. Pauley at the time of the fire as constituted a violation of the policy provisions; and that if there was such violation the same had been waived by defendant.
An adequate disposition of the controversy requires discussion of the estate owned by plaintiffs in the insured building at the time of its destruction. A life estate may be created by reservation in a deed of conveyance.McDougal v. Musgrave,
The estate of the life tenant in the insured building may have been of little value to him, as he had gone elsewhere to live when the fire occurred; but the action of the life tenant was not sufficient to divest him of his life estate, nor was it sufficient to invest plaintiffs with one in fee simple. Where an insured has not sustained the entire loss, his interest is not unconditional and sole ownership. Scott Callaway v.Insurance Co.,
The interest and ownership of plaintiffs in the insured building were not such as are defined above. The conditions of the policy, relating to fee simple ownership of the land by insureds and requiring that their interest be sole and unconditional ownership, have been approved and enforced.Tyree v. Insurance Co.,
The policy provisions here pleaded by the defendant may be waived when the insured has knowledge of the title at or prior to making the insurance contract. Hamlet v. Insurance Co.,
Consistent with the foregoing, we reverse the judgment of the Circuit Court of Boone County, set aside the verdict, and award defendant a new trial.
Judgment reversed; verdict set aside; new trial awarded.