The opinion of the court was delivered by
Taft, J.
This is an action to recover for a loss by fire, under a policy of insurance issued by the defendant, dated the 13th of February, 1878. The property was destroyed by fire on the 28th day of April, 1879. Several objections are now urged by the defendant against a recovery.
I. That the proof of loss was not signed by the assured’s own hand, and verified by his oath. The proof of loss was furnished the company on the 17th day of May, 1879, signed and sworn to by the wife of the assured. It was the duty of the defendant if liable, to adjust the same within three months from that date. Within that time, on the 18th day of July, the plaintiff was notified, in effect, that the claim was not allowed, as the defendant did “ not find the title satisfactory,” and making no objection as to the defects in the proof of loss that are now complained of. We think that the reception of the proof of loss and placing their refusal to pay upon a specific, substantive ground, not connected with the proof of loss, and having before that accepted similar proofs from the plaintiff in a like case, was in fact a waiver of any defect in the preliminary proof. We think in this case, upon the facts reported, that it should be so held ; that as a matter of fact they did waive any defect in the statement. It is law in this State that a company has the right to reject a claim for a loss giving to the assured no reason therefor, and defend upon any and all grounds that would defeat a recovery; or, in other words, the rejection of a claim without assigning any reason, is not a waiver, as matter of law, of any of their rights. Spooner v. Ins. Co., 53 Vt. 156. The company has power to waive the production of the proofs ; and it is always a question of fact to be submitted to the triers whether it did do so. In the case cited to there was no evidence tending to show that the com *359pany did waive the defect in the statement; and, therefore, it was error for the court below to hold that there was a waiver. There are cases that hold that the assured in some instances, is excused from furnishing any statement, as where the company deny the existence of the contract. Tayloe v. Ins. Co., 9 How. 390. The fact that the assured was not in the country, and probably could not have furnished the statement, had it been called for, does not affect the question ; for if an agent could not make the proof, which we do not decide, and there was no remedy at law, it is possible that equity might grant suitable relief, as in case of accident.
II. The referees find that the value of the property was not truly represented to the company ; that it was over-estimated, and in consequence thereof, over-insured. The assured agreed that the application was a true exposition of the value of the property ; and (it being a matter material to the risk) if it was misrepresented, the policy should be void. This is a matter of contract, made by the parties; and unless its effect is obviated by what subsequently took place, rendered the policy null. Boutelle v. Westchester Fire Ins. Co., 51 Vt. 4. The agent of the company knew these facts as to value, or ought to have known them; and so they are affected with like knowledge. The defence was matter of contract, not one by force of the charter ; and the company had power to waive it; and we think the defence must be as matter of fact held waived. They knowingly over-insured the property ; and not repudiating the contract because it was over-insured, placed their refusal to pay upon the distinct ground that the title was defective, and upon that ground alone. They leviéd assessments upon the policy both before and after the loss, and as there was no fraud on, the part of the plaintiff, he was misled by the defendant into the belief that his policy was valid. The assessments levied after the loss, were not made in ignorance, or through mistake of any fact, but inadvertently, and as it would seem from mere negligence. The facts reported amount to a waiver of this defence.
*360III. The charter of the defendant provides that the policy should be void unless the true title of the assured, in case the assured has a less estate than a title in fee simple, was expressed therein, and, in the application ; and the applicant agreed in the application that in case any matter material to the risk was not fully stated, or in any material thing was misrepresented, the policy should be void. The state of the title was material, and should have been correctly stated. Under the above provision of the charter, and agreement in the application, the defendant insists that the policy was void for the reason that the title was not truly expressed in the policy and application. On the 11th day of November, 1863, the assured was the owner of the property, and on that day conveyed it to one Proctor in trust. There was no proof before the referees that the deed was ever delivered, or that Proctor ever knew it was executed, although he consented that it might be. He never acted under the deed ; never took possession of the property conveyed by it; never saw it, and it had never been set in the list to him for taxation, and he never expected to take control of it; and all parties had treated it as the property of the insured, or as the referees say in “ precisely the same manner as before ” the execution of the deed. The controlling question in this case is, whether the deed ever became operative by a delivery. Before we declare the contract void,this fact should plainly appear. There is no evidence in the case tending to show it, save the fact that it is on record, and this is only prima facie evidence of a delivery which may be rebutted. A* deed does not take effect until it is delivered. In Elmore v. Marks et al, 39 Vt. 539, Piebpoint, Oh. J., says: “ What amounts to a delivery is a question that has been much discussed, each case standing mainly upon its own peculiar facts ; but all the authorities seem to agree that to constitute a delivery, the grantor must part with the custody and control of the instrument, permanently, with the intention of having it take effect as a transfer of the title, and must part with his right to the instrument, as well as with the possession. So long as he retains the control of the deed, he retains the title.” Applying this rule to the case at bar, *361we think that upon an examination of the facts reported, the presumption arising from the record is fully rebutted, and that the requisite facts to constitute a valid delivery as stated above, are wholly wanting. The facts that Proctor never knew that the deed was executed ; that he never acted under it, and never expected to ; and that all the parties treated the property as though the deed had never been executed, and Walsh continued to occupy it as his own, and claimed it as his own, for a long series of years ; that the deed is not among the papers of Proctor, conclusively rebut the prima facie presumption of delivery. The facts reported fail to show that the assured ever parted with the custody and control of the instrument, permanently, with the intention of having it take effect as a transfer of the title, or that he ever parted with his right to, or possession of the instrument, which is the rule so ably laid down by the late learned Chief Justice ; the defence as to the defect in the title fails. This disposes of the questions raised in the argument. We make no reference to the questions, of the effect of the homestead upon the deed to Proctor, and waiver by defendant by having assessed the policy.
Judgment affirmed.
Redfield, J., being an officer of the company, did not sit.