Rosenstock v. Mississippi Home Insurance
82 Miss. 674
Miss.
1903
Check Treatment
Whitfield, O. J.,

delivered the opinion of the court.

M. Rosenberg, appellant’s testator, on the 26th of December, 1900, executed a contract of sale for the storehouse, and the lot on which it stood, to Ben Tee for $1,000, a copy of which the reporter will set out. The purchaser paid $200 in cash, and went into possession under the contract in June, 1901, and subsequently paid $425 before the fire, which occurred on the 28th of December, 1902, The purchaser had thus paid $625 of the $1,000 before the fire. He continued in possession under the contract of sale until the fire, and is still in possession. On the 3d day of September, 1902, after the death of M. Rosenberg, appellee issued the policy of insurance in this case, making the loss payable to “the estate of M. Rosenberg.” The contract of insurance provides that, “if the insured is not the sole and unconditional owner of the property, the policy shall be void.” Counsel agreed that “the issues are as raised by the pleadings; that no notice of any kind was given appellee of the execution *686of the contract for the sale of the land; that it had no notice of any kind of the existence of the contract, or of the possession of the property by Ben Tee under the contract, until after the fire.” The court gave a peremptory instruction for the defendant upon the ground that the insured was not, at the time of the execution of the policy, the sole and unconditional owner of the property. Upon this state of case, we say:

1. That the vendor in a written land contract, who has admitted the vendee into possession, and received from him large payments on the purchase money, is not “the sole and unconditional owner,” within the meaning of that clause in this policy, although he retains the legal title. In Strickland v. Kirk, 51 Miss., 795, it is said: “The vendor'is treated by the courts as mortgagee, and his retention of the title operates as an equitable mortgage.” The case of Hamilton v. Ins. Co. (Mich.), 57 N. W., 735, 22 L. R. A., 527, is decisive of this point and of this case. Ben Tee was the equitable owner of this property destroyed by fire. The vendor was a mere trustee of the legal title, to be conveyed upon the payment of the purchase money. See L., L. & G. Ins. Co. v. Cochran, 77 Miss., 348, 26 South., 932, 78 Am. St. Rep., 524, and also the careful collection of authorities in the very able brief of counsel for appellee, which we direct the reporter to publish in full on account of its excellence. In the ease of Hamilton v. Ins. Co., supra, the authorities are very fully collected and very carefully, reviewed. The cases of Hoose v. Ins. Co., 84 Mich., 309, 47 N. W., 587, 11 L. R. A., 340, and of Hall v. Niagara Falls Ins. Co., 93 Mich., 184, 53 N. W., 727, 38 L. R. A., 135, 32 Am. St. Rep., 497, are accurately differentiated. It is pointed out that in the Hoose Case the language of the policy was “to insure Mrs. Margaret Hoose to the amount of one thousand dollars on the two-story building,” etc., and that it was clearly the intention to insure only the interest of the applicant, whatever it *687might be. Here the clause expressly stipulates that the insured is the sole and unconditional owner.

2. This condition relates to ownership when the policy was issued. We decided this in L. L. & G. Ins Co. v. Cochran, 77 Miss., 348, 26 South., 932, 78 Am. St. Rep., 524, and this is undoubtedly the correct rule. See 28 Cent. Dig., p. 1223, sec. 692, pars, “m,” “q.” The case cited by learned counsel for appellant • do not support his contention on this proposition. Even if reference be had to the fact that Rosenberg had taken out other policies of insurance on this property for other years in his lifetime, and that this one was taken out after his death, and even if it be true that no application was ever made, nevertheless the fact that this policy contains this clause expressly, on its face, makes this policy void, under the facts in evidence. In Syndicate Ins. Co. v. Bohn, 65 Fed., 165, 12 C. C. A., 531, 27 L. R. A., 614, Sanborn, J., speaking for the court, said: “It is contended that the contracts in these policies which exclude the Bohns from insurance under them upon any interest but that of unconditional ownership are without binding force, because no inquiry respecting their title was made by the company, and no statement concerning it was made by the Bohns when these policies were issued. But neither inquiry nor statement, before the issue of the policies, was requisite to the validity of these contracts. The contracts containing, as they did, the stipulations that they should be void if the interest of the assured had not been truly stated to the company, or if it was not truly stated in the policy, or if it was not the sole and unconditional ownership of the property described, and their silence and aceptance of the policies was the answer,” citing many authorities. We approve this as a correct statement of the law. See, also, 1 May, Ins. (4th ed.), secs. 2, 3, 87a.

Affirmed.