287 S.W. 896 | Ky. Ct. App. | 1926
Affirming.
This is the second appeal of this case. The opinion in the first one is reported in
The answer as amended contained two defenses, as will be seen from the excerpts therefrom contained in the opinion on the first appeal supra, and they were: (1) That the insured, appellee Cummins, concealed from appellant at the time it issued the policy sued on material facts affecting the risk, which was a mortgage for $2,000.00, and did not state his true interest in the property; and (2), that he suffered a mechanic's lien for $425.11 to be filed against the property after the insurance took effect without notifying appellant thereof, and which was in violation of certain language in the policy, thereby rendering it void from and after that time. A demurrer was sustained to the defensive pleadings, and upon the insurance company failing to plead further, judgment was rendered against it, from which it appealed, resulting in the opinion supra, an examination of which will show that the judgment was reversed upon the theory that "it must be taken as true that when this policy was written, there was on this property a $2,000.00 mortgage to Eversole and a $1,200.00 mortgage to the bank," but the latter lien was disclosed and its existence could not and did not affect the merits of the case, and it was so held in the former opinion.
1. Upon the second trial it developed that what was referred to in the pleadings and the former opinion as *331 the "Eversole mortgage" was nothing more than the levy of an attachment to recover an amount between $200.00 and $400.00, and that it was afterwards discharged and no lien was ever adjudged. The trial court held that as compared with the value of the property the lien was immaterial, which we hold was correct, as will be seen from some of the cases cited in the former opinion. However, it was proven at the last trial by the agent who issued the policy, that had he known of that lien he would not have regarded it as material and would have issued the policy, notwithstanding the attachment. We, therefore, conclude that the court properly held defense (1) to be without merit.
2. Defense (2) was rested upon a clause in the policy saying: "If any change, other than by the death of the insured, takes place in the interest, title or possession of the subject of the insurance, except change of occupants without increase of hazard, whether by legal process or a judgment or by voluntary act of the insured, or otherwise, said policy shall be void." It was urged that the filing of the mechanic's lien for $425.11 (incurred while improving the property just immediately before the issuing of the policy but not filed until after its issual) effected a change in the interest and title of the insured in the property so as to render it void under the above inserted excerpt and that the court should have rendered judgment in favor of appellant by dismissing the pleading seeking a recovery on the policy.
We had practically the direct question before us in the recent case of Niagara Insurance Company v. Jeffrey,
Wherefore, the judgment is affirmed.