195 Mo. App. 138 | Mo. Ct. App. | 1916
This is an action on a fire insurance policy covering $500 on a dwelling house and $200 on household furniture ^herein. The judgment is for plaintiff and defendant appeals.
The written application for the policy was signed by plaintiff, forwarded, to the company’s office in Chicago, and the policy issued thereon. In this application plaintiff warranted he was the sole and absolute owner of the property and the policy provided that it would he void if the insured was not the sole and unconditional owner in fee of said property. The application also warranted that no stove pipe passed through the roof of the building. The defenses are that plaintiff was not the fee simple or absolute owner of the real estate, and that a stove pipe did pass through the roof of the building insured at the time of the fire.
This policy is a severable one as to the insurance on the house and on the household furniture and a violation of the warranty as to the title of the real estate would not defeat a recovery for the value of the personal property. [Trabue v. Insurance Co.,121 Mo. 75, 85, 25 S. W. 848; Holloway v. Insurance Co., 48 Mo. App. 1, 121 Mo. 87, 25 S. W. 850.] ’ '
The evidence shows that at the time of the fire there was a' stove pipe extending through the roof from the cook stove in the kitchen. It is not contended hut that this would defeat the policy and plaintiff relies on a waiver of this condition. The court gave the following instruction: “The court declares the law to he that if the plaintiff signed an application, to the defendant, for insurance on the property covered by the policy sued upon, and said application showed and contained
As to the insurance on the house, we have had more-difficulty. It is conceded that the -deed to the property conveys same to plaintiff W. M. Turner and his wife, Ella Turner, thus making them tenants by the entirety. The policy provides that it shall be void if the assured shall not be the sole and unconditional owner in fee of said property and the application contained a similar representation. There is considerable authority holding that where the assured’s title is under a deed making him only a tenant by the entirety with his wife he is not the sole and unconditional owner. [Schroedel v. Ins. Co., 158 Penn. 459, 27 Atl. 1077; Aetna Ins. Co. v. Resh, 40 Mich. 241; Genesee Falls Permanent Savings & Loan Ass’n v. Fire Ins. Co., 44 N. Y. Supp. 979; 2 Cooley’s Briefs on Insurance, 1381.] If this had been all that was shown in this case as to the title we would be inclined to hold the policy void in view of what the Supreme Court held as to the wife having a substantial interest when holding as a tenant by the entirety in Holmes v. Kansas City, 209 Mo. 513, 108 S. W. 9, 1134. But this is not all that is shown in this case. The plaintiff testified, and his evidence stands uncontradicted, that he bought this property for himself and paid for it with his own money; that he directed the deed to be made to himself and supposed it was so made until after the fire; that he then first learned that his wife’s name had been inserted as one of the grantees. The trial court found that the name of the wife was inserted by mistake and that this was unknown to the plaintiff when he effected this insurance.
It is the settled law in this State and other jurisdictions that it is sufficient to satisfy the requirements of sole and unconditional ownership in insurance policies that the insured is the sole equitable owner and has the full equitable title. [Gaylord v. Insurance Co., 40 Mo. 1; Lingenfelter v. Ins. Co., 19 Mo. App. 252, 268;
We conclude, therefore, that the learned trial judge came to the correct conclusion, and the judgment will be affirmed.