| Miss. | Dec 15, 1899
delivered the opinion of the court.
That the insured were not the unconditional and sole owners of the property when the application for insurance was made, and the policy of insurance was issued, is perfectly plain on the evidence offered by the plaintiff himself. They were the owners of an undivided half interest in the property, and they had neither the legal nor equitable title to the other undivided half interest.
Whatever opinion the person who made the application may have sincerely entertained, the verbal agreement, whereby the owners of the other undivided half interest undertook to convey their interest to their other two co-owners on repayment by the latter to the former of whatever sums had been paid by the former to their vendors, conferred no title, legal or equitable, the conditional agreement never having been executed by the parties to it beyond the mere cessation of the co-owners to use and occupy the property.
While it is true that in construing contracts of this character, courts will not scrutinize with critical nicety the mere question of title, yet where it clearly and indisputably appears that the insured owned only an undivided half interest in the property sought to be insured, while in their application for insurance it vras stated by them that they were the sole and unconditional owners of the property, courts will not, and cannot, shut their eyes to so glaring a misstatement of an essential fact, however sincerely made.
Entertaining this opinion on this point, we think it unnecessary to go further into the case. The verdict should have been for the defendants, as no other could have, properly, been allowed to stand on the transcript before us. The court, therefore, might and should have given a peremptory charge for the defendant, if the same had been asked.
Reversed and remanded.