7 S.D. 410 | S.D. | 1895
This is an action upon a fire insurance policy bearing date October 13, 1887. Judgment for plaintiff, and defendant appeals.
The policy was issued for “$1,500, on machinery, shafting, belting, pulleys, elevator, and fixtures, while contained in a tlireestory, iron clad building situated in Grand street, near Seventh street, Pittsburgh, Pa.” The policy contained the following clause: “This policy shall be void and of no effect, unless consent in writing is indorsed by the company hereon, in each of the following cases, viz.: (1) If the assured is not the sole and unconditional owner of the property, or if the property or any part thereof, be or become mortgaged, or otherwise incumbered.” The defendant, in its answer, set out the breach of said policy as follows: Defendant further avers that at the time said policy was issued, and up to and including the date of the fire alleged in plaintiff’s complaint, the property insured and described in said policy was mortgaged and incumbered by an instrument in writing given by the insured, James M. Peet to one Mary E. Schenley, bearing-date of the 21st of December, A. D. 1886, whereby he, the said insured, mortgaged and incumbered the improvements and other
It was admitted that the lease was a valid and subsisting lease between Mary F. Schenley and the said plaintiff, for the property described, at the date of said fire, and that plaintiff held under said lease. And it may be added that the undisputed evidence shows that the plaintiff was holding under this lease at the time the policy was issued. Upon the defendant’s counsel offering to read the lease in evidence, the counsel for plaintiff interposed the following objection: “Plaintiff’s counsel thereupon objects to reading said exhibit, as the same is incompetent and immaterial. It shows upon its face as not being an incumbrance or mortgage. There is no evidence whatever of any indebtedness existing be
It will thus be seen that only two questions are presented for our decision: (1) Does the lease in question, by its terms, create a lien or incurñbrance upon the buildings and improvements placed upon the land by the lessee? (2) If the lease in question does, by its terms, create an incumbrance upon the buildings and improvements placed upon the land by the lessee, is the policy of insurance upon which this action is based forfeited by reason of said incumbrance?
This case was before this court at a former term, and the decision is reported in 1 S. D. 462, 47 N. W. 532. The learned counsel for respondent contends that that decision is stare decisis or the law of the case, upon the questions involved in this appeal. Undoubtedly, that decision is the law of this case, as to all questions properly raised and decided on that appeal, in all its subsequent stages. Bank v. Gilman, 3 S. D. 170, 52 N. W. 869. But the questions presented by this record were not involved or decided on the former appeal. The questions then presented are stated by Judge Bennett, who wrote the opinion, as follows: “The questions presented by the record are: (1) Was the direction of the verdict for the plaintiff within the province of the court? (2) Were the notice and proofs of loss furnished by the plaintiff such as were required by the policy? (3) Did the fact that the building in which the property insured was situated stood upon leased ground make the policy void? (4) Was> the ownership of the property changed after the policy was issued, and before the fire occasioning the loss? (5) Did the subleasing of the building in w'hich the property insured was situated vitiate the terms of the policy?” It will thus be seen that the condition in the policy and
This brings us to the consideration of the stipulations in the lease, and the construction to be given them. The first and most important rule in construing a written instrument is to ascertain from the language used in the instrument the intention of the parties, if that intention can be ascertained from the language itself. The lease in this case provides for the payment by the lessee of the sum of $800 per annum rent, payable quarterly, for the period of three years and nine months from July 1, 1886, and also for the payment by the lessee of taxes, etc. The amount of rent to be paid is fixed and certain, and the lessee covenants to pay said rent on the days and tim.es limited and appointed for the payment thereof. The lease also contains the other covenants usual m such leases. The lease then provides that: /'And in case of violating these covenants, or any of them, said lessee and his assigns shall forfeit eaid lease and improvements, and lessors, without, notice,
It is contended by the counsel for the respondent that the power to distrain for rent is not given by our statute, and hence these clauses in the lease providing for such distraint of the property cannot be given effect. But a power to distrain is a mere form of remedy, If, q,s we have said, the right tp hake and sell the
The counsel for the respondent further contends that, as no rent was shown to be due when the policy was issued, there was no violation of the condition. But this position is not tenable. A mortgage is not the less a mortgage or incumbrance upon the property because the money which the mortgage was given to secure is not due. The lien given by the stipulations in the lease was for all rent that might accrue during the term of the lease, which at the date of the policy had more than two years yet to run. This point was made in Wright v. Bircher, supra, but the supreme court of Missouri thus disposes of it: “The position that the lien was only for rent that might at any time be in arrear, and, there being none in arrear when the mortgages to Nannie M. Wright were executed, there was no lien in favor of Bircher at that time, cannot be maintained. By a fair construction of the lease, the lien reserved was for the full amount of the rents which, by its provisions, would accrue within the term for which the house was let. It was not to secure the first installment of rent which the lessee might fail to meet, only, as counsel contend, but each installment, and it created a lien as well for the last as for any preceding installment.” A similar proposition was urged upon the court in the case of Insurance Co. v. Vanlue, supra. But the supreme court of Indiana, speaking through Mr. Justice Elliott, says: “It is true that when the assured received his policy, and when the loss occurred, he was not in default; but, although not in default, his engagement continued, and the security for its performance in the future remained unannulled. In every instance where a valid mortgage is executed, it constitutes an incumbrance, and remains an incumbrance'until the engagement for which it stands as a security is performed. It seems her
It is further contended that the condition in the policy must be construed to apply to such changes as should arise after the policy was delivered, and Hoose v. Insurance Co. (Mich.) 47 N. W. 587, and Hall v. Insurance Co. (Mich.) 53 N. W. 727, are cited to support the proposition. But these cases do not, in our opinion, apply to such a condition as is contained in the policy now before us, But in Insurance Co. v. Yanlue, supra, this precise condition was before the court, and the court felt compelled to reverse the judgment of the court below, which was in favor of the plaintiff.
The counsel for respondent further contends that the description of the property in the lease hypothecated or mortgaged for the payment of rent, etc., does not refer to the property described in the policy of insurance. But in our opinion that question is not properly before us for review on this appeal. It is sufficient for the purposes of this decision that we find tfie language used in