The appellant insurance company issued to appellee individually a policy of insurance on a building owned by appellee and his wife as tenants by the еntirety for the sum of $1,500. The policy contained, a provision limiting the concurrent insurance on the building to $4,000. Additional insurance on the building was taken out by appellee, so that, at the time of the fire which destroyed the building, there was $5,500 insurance oq it. The policy contained a clause which provided ,that it should be void if the total concurrent insurance, exceeded $4,000. The policy also contained a provision that it should be void “if the interest of the insured be other than unconditional and sole ownership.”
Thе insurance company denied liability upon two grounds: first, because insurance in excess of the concurrent insurance allowed by the policy sued on had been taken out; second, because appellant was not the sole and unconditional owner of the building.
There was a verdict and judgment for the owner, and the insurance сompany has appealed.
The .validity of a clause in an insurance policy limiting, the total concurrent insurance and invalidating the policy if that amount is exceeded has been frequently recognized by this court; indeed, it is recognized and enforced universally, but it has been held by this and all other courts that, while the clause is valid, it may bе' waived. That such a provision may be waived was declared by this court in the case of German-American Ins. Co. v. Harper,
Without setting out the testimony showing knowledge of the Excess of insurance, it may be said that the testimony warranted the jury in finding that the agent of the appellant company had such knowledge of this fact, and that its conduct was thereafter such as to reasonably imply a purpose not to insist upon a forfeiture of the policy on that account, and, this being true, the' verdict. of the jury finding that there was a waiver of this provision .is conclusive of that fact. Ark. Mutual Fire Ins. Co. v. Claiborne,
Upon the second question, it may be said that the undisputed testimony shows that appellаnt and his wiféwere the owners of the insured property as tenants by the entirety, ánd there was.no testimony charging the insurance company, or its agent, with knowledge of that fact,, so that it cannot be contended, in fact it is not insisted, that there was any waiver of the provision of the policy that it should be void “if the interest' of the’ insured be other than unconditional and solé ownership. ’ ’ On the contrary, the insistence is that appellant, as a tenant by the entirety, was the sole and. unconditional owner.
We do not agree with counsel in this insistence. - If being a tenant by the entirety made appellant the sole and unconditional owner, then his wife, the other tenant by the entirety, would also be the solе and unconditional owner, and we would have the anomalous condition of two persons each being the sole and unconditional owner, for her interest is as great as his, and she has the same right to the use and possession of the property and the same right to' share in the rents and profits thereof. In the recent case of Moоre v. Denson,
This holding followed from the prior holding of this court in the cаse of Branch v. Polk,
The learned justice there also said: “The rational construction of these provisions of our Constitution and statute, which ‘uprooted principles of the common law hoary with .age, ’ swept away the marital rights of the husband during the life of the wife, and gave enlarged powers to married women, is, not that they lessen the pоwer of the husband over his own interest in an estate by entirety, but, that they deprive him of the control over the interest of the wife which he formerly exercised jure uxoris, and confer upon the wife the control of her own interest. The right of the wife to control and convey her interest, we think, is now equal to the right of the' husband over his interest. They each are' entitled "to one half of the rents and profits during coverture, withpower to each to dispose of or charge his or her interest, subject to the right of survivorship existing in the other. Hiles v. Fisher,
It follows therefore 'that the husband has no longer, as at common law, control over the interest' of his wife in an estate by the entirety, but she has the right jo" аn equal and separate enjoyment of the proceeds derived from such an'estate.
The language, ‘ ‘ unconditional, and sole ownership, ’ ’ appearing in the policy sued on, has 'been many times defined'in the textbooks on insurance and in the reported cases as follows;' “An insurance ownership is sole when no. one elsе has any interest in the property,.as owner, and is unconditional when the. quality of the estate is not limited. or affected by any condition.” Royal Ins. Co. Ltd., v. Shirley, 106 Sou. (Miss.) 884.
Under this definition a tenant by the entirety does not qualify- as a sole owner. Indeed, we -have found no ease holding, that a tenant by the entirety was a' sole owner and entitled to recover a,s such, where the policy of insurance required that the insured be the sole owner. The rule is stated to the contrary in 26 C. J., chapter Fire Insurance, § 219, page 180, where it is sаid: “When the title is in husband and wife jointly, the husband cannot insure as sole and unconditional or absolute owner.” We have examined the cases cited in the note to the text quоted and we -find they fully sustain the text.
The case of Turner v. Home Ins. Co.,
- But that court said that the undisputed testimony' in that ease showed that the husband had purchased and paid for* the property without any intention that any interest in, it be conveyed to his wife, and that therefore there was a resulting trust in the husband’s favor, and he-was'therefore the equitable owner of the property. It thеrefore appears that this case is not in fact out of. line with other cases on the subject.
We conclude therefore that appellee was not thе sole and unconditional owner of the property, and, as it Was not shown that the insurance company had waived this provision of the policy, it follows that a right to rеcover on the-policy-was not shown. 2 Joyce on Insurance, § 1048A; 6 Cooley’s Briefs on Insurance, § 1382 (J); Clawson v. Citizens’ Mutual Fire Ins. Co.,
The judgment-of the court- below will-therefore be reversed, and the cause remanded.