62 Mich. 638 | Mich. | 1886
The plaintiff declared upon a policy of insurance issued by the defendant.
The defense was the general issue, and notice that in the application upon which the policy was issued the plaintiff represented that he was the owner in fee simple of the property on which the buildings insured were situated, and that they were only incumbered to the amount of $500; whereas, in truth and in fact, said plaintiff did not own the property in fee simple, and had no ownership of said property, and the same was incumbered to the amount of $700 and upwards, as was well known by plaintiff.
Upon the trial no question was made respecting the loss by fire of the subjects insured, and no contest was made over their value. The issue was confined to a very narrow compass, and related solely to that raised by the notice.
To show the representations made, the defendant introduced the application upon which the policy was issued. The questions and answers were as follows:
“ Q. Have you the fee simple title?
“A. Yes.
“ Q. Is the property incumbered ?
“A. Yes.
“Q. If so, in what amount?
“A. $500.
“ Q. When due ?
“A. 1SS3.
“ Q. Cash value of the land and buildings ?
“A. $1,500.
“Q. Number of acres?
“A. 160.
“ Q. How long have you owned the premises?
“A. Five years.”
Buildings permanently annexed to the freehold are regarded as real estate, and the representations contained in the application unquestionably constituted a warranty that plaintiff was the owner in feo simple of the land upon which the building insured was situated. If he did have the title in fee simple to such land, there were no false representations with respect to such ownership.
If the representation of quantity was relied upon as a warranty, and its falsity as a defense, defendant should have set it up in its notice. Under the rules established by this Court, the defendant must confine himself to the fraud or falsehood alleged in his notice. It was therefore immaterial whether plaintiff was or was not the owner of other land than the forty acres upon which the building insured stood.
After the plaintiff had introduced evidence tending to prove the execution and delivery of the deed from Barbara Pangborn to him, the defendant, to rebut such evidence and
Barbara Pangborn and her husband wore living with plaintiff at the time the insurance was effected, and at the time of the loss. It was competent for the defendant to-show, if it could, that Barbara Pangborn delivered the deed to Henry Pangborn to hold until performance by plaintiff of some condition, and then to be delivered to him. If the-defendant could establish this fact, and show the condition had not been performed, the defense of want of title in fee* simple would bo established. It was therefore proper for counsel for defendant to inquire of plaintiff on cross-examination what the deed was put into his brother’s hands for.. It was proper cross-examination.
The evidence showed that when the adjuster called upon-the plaintiff to adjust the loss he requested to be shown the. deed from plaintiff’s mother to him, and that plaintiff told! the adjuster that it was held by his brother, and that he held: his brother’s receipt therefor, which he showed to the adjuster ; and he made a written memorandum of its contents.
Notice had been served upon plaintiff’s counsel to produce this paper, and during the cross-examination of plaintiff-defendant’s counsel called for the production of the paper. Counsel for plaintiff did not produce such paper, and disclaimed all knowledge of any such paper. Counsel for defendant then asked this question of the plaintiff :
“Now, Mr. Pangborn, did you on that occasion show to Mr. Millard a paper signed by Barbara Pangborn, your mother, bearing date the fifteenth day of March, 1882, the-*642 same as this deed, providing that Ilenry Pangborn was to hold this deed, and it was to be delivered to you at the death of Barbara Pangborn, your mother, and her husband, provided you supported and cared for them during their natural lives according to the satisfaction of Henry Pangborn
The question was objected to by plaintiff’s counsel as not proper cross-examination. The objection was sustained by ■the court, and the question vras excluded.
This ruling was erroneous, within repeated decisions of this Court. Chandler v. Allison, 10 Mich. 460; Dann v. Cudney, 13 Id. 239; Detroit & M. R. R. Co. v. Van Steinburg, 17 Id. 99; Stearns v. Vincent, 50 Id. 221.
'The defendant attempted to show by parol testimony the contents of the paper Held by plaintiff from his brother concerning his custody of the deed, and the condition upon which he held it, but such testimony was excluded as being incompetent. The original was admitted to have been in the possession of the plaintiff, and we think the notice was sufficiently certain to call upon the plaintiff to produce the paper, and upon his neglect or refusal to do so it was competent to show its contents by parol.
The controversy was over the delivery of the deed. This involved the intention of the grantor, and all testimony bearing upon that question should have been admitted.
For these errors there must be a new trial.
¥e discover no error upon the question of incumbrances. It was properly submitted to the jury under the evidence.
The judgment will be reversed, with costs, and anew trial ordered.
