143 So. 571 | Ala. | 1932
The cause was tried upon an agreed statement of facts, the salient features of which appear in the report of the case.
The policy of insurance issued to J. C. Roney contained a warranty to the effect that it should be void if the interest of the insured be other than unconditional or sole ownership, or if the subject of the insurance be a building on ground not owned by the insured in fee simple.
It is not controverted that at the time of the issuance of the policy and at the time of the fire the fee-simple title to the property was in Mattie Roney, the wife of J. C. Roney, and under this proof, without more, the insurer could have established a complete defense to a suit upon the policy. Gunn v. Palatine Ins. Co.,
Counsel for insured seeks to avoid the effect of the above-noted breach of warranty upon the doctrine of waiver or estoppel (American Equitable Assur. Co. v. Powderly C. L. Co. (Ala. Sup.)
The insurer, having paid the money in ignorance of this complete defense, and in reliance upon the sworn proof of loss affirming the nonexistence of the policy violation, may recover it back. Jasper Trust Co. v. K. C., M. B. R. R. Co.,
"It is elementary law that if one, through mistake of fact, false representation, or fraud, obtain money from another, an action lies to recover it back, on the simple principle that the one has money which ex aequo et bono belongs to another." Jasper Trust Co. v. K. C., M. B. R. R. Co., supra.
Mattie Roney had no contract of insurance either verbal or written, and therefore no valid claim to the funds.
What has been here said, in connection with the authorities noted, suffices to answer appellants' contentions without further discussion.
The decree is free from error, and will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.