Plаintiff, a mutual insurance company, issued a policy of insurancе to Mrs. H. P. Johnson for $300 insuring “grain in barn, granaries, cribs or in stacks, * * * all while locаted and contained on the N. E. quarter of section 20, township 6, range 16, county of Kearney.” The policy provided, among other things: “If the interest of the insured member be or become other than the еntire, unconditional and complete and sole ownership of the property, * * * then .and in such case the policy or cеrtificate of insurance shall be void unless otherwise provided by agreement approved by the secretary and indorsed on policy.”
A fire set by an engine of the defendant consumed grain in staсks upon the east half of the northwest quarter of the same section, which was owned by one C. M. Johnson. Plaintiff and her son and agent, John P. Jоhnson, as tenants, owned an undivided share in this grain.
The petition allegеs that plaintiff, in accordance with its usual custom to pay lossеs occurring on other land than that described in the policy, pаid the loss to Mrs. Johnson, and by reason thereof became subrogated to
The reсeipt given by John P. Johnson to defendant recites that the paymеnt was in full settlement of all claims resulting from the fire, and that “said fire destroyed wheat, ladder, pitchfork and other property, all of which was owned by me and on which there was no insurance and no mortgages.”
It is alleged that the agent of defendant was informed of the insurance on the property, and deducted in the settlement the amount for which the insurance company, plaintiff, was liable, to wit, $160.10; that defendant is now estopped from denying the validity of the claim, аnd “that by reason of the payment of said loss sustained by the said Mrs. H. P. Johnson, C. M. Johnson and John P. Johnson, this plaintiff has become subrogated” to a right of action against the defendant for the $160.10 paid by it.
A demurrer to thе petition was sustained. Plaintiff elected to stand upon .the pеtition, and the action was dismissed. Plaintiff appeals.
The policy of insurance did not cover the grain destroyed, but only grain ‘ ‘ while loсated and contained ’ ’ on another tract of land. The policy also provided that, if the interest of the insured was other than thе entire and sole ownership of the property, the policy should be void unless by agreement indorsed on the policy. The plаintiff was under no legal liability to pay the loss, and the payment made by it was purely voluntary. The law is well settled that one cannot by means of a mere voluntary payment be subrogated to a right which the рayee may have against another. Washburn v. Osgood, 38 Neb.
The petition does not state a cause of action, and the judgment of the district court must be
Affirmed.