Hartford Fire Ins. Co. v. McCain

*398 Coon, J., delivered the opinion of the court. The appellee, John F'. McCain, instituted this suit ag’ainst the appellant in the circuit court of W'ebster county for the loss by fire of a tenant house, which was covered by a policy of insurance issued by the appellant company, and, from a verdict for the sum sued for, this appeal was prosecuted. The appellant filed a plea of the general issue, and also four special pleas, but the. conclusion we have reached makes it unnecessary to consider the several very interesting* questions which arose under the first, second, and fourth of these pleas, and which are so ably and exhaustively argued by counsel for the respective parties. *399 The third special plea averred that the contract of insurance had been breached, by reason of the fact that by the terms of the contract it was agreed and warranted that the assured was the sole and absolute owner of the property proposed to be insured and for which the contract of insurance was issued, and that the assured was and would continue to be, during the life of said policy, the sole and unconditional owner in fee of said property, and that said contract was issued upon said warranties, and that said warranties were false, in that the assured, at the time of the issuance of said policy, was not the sole and unconditional owner of said property, and did not own a fee-simple title thereto, and that, for this reason, the said contract of insurance was null and void from its inception. The replication to this plea averred that, at the time of the execution of the policy of insurance, the- assured was the sole and absolute owner of said tenant house, within the provisions of said contract, and that the title to said land upon which the house was located was in the said assured, he claiming and owning the same by deed of conveyance conveying and warranting the title thereto to him in fee simple, and that he so owned said land at the time of the loss and destruction of said house. The replication concluded with a verification, and there • upon issue was joined by the defendant. The policy of insurance contained the following’ stipulations : “This indemnity contract is based upon the valuations and representations contained in the assured’s application and diagram of even number herewith, which the assured has signed and permitted to be submitted to the company, and which are hereby made a warranty and a part hereof, and it is stipulated and agreed that if any false statements are made in said application or otherwise; ... or in case any change shall take place in title or interest or possession (except by succession by reason of the death of the assured) of the property *400 herein named; or if the assured shall not be the sole and unconditional owner in fee of said property; . . . then in each and every one of the above cases this policy shall be null and void.” Pretermitting any discussion of the controversy between counsel for the respective parties as to whether the form of the pleading’s shifted the burden of proof on the issue as to whether the insured was the sole and unconditional owner in fee- of the property insured, but assuming that the burden remained upon the appellant to establish this affirmative defense, we will consider the evidence bearing’ upon this issue. The appellee testified to the issuance of the insurance policy and the total destruction by fire of the tenant house, and to its value, and that he was the sole owner of the property. As the sole evidence of his title to the property, he identified and introduced in, evidence a deed from his wife, Mrs. Florence 'Estell McCain, which upon its face purported to convey to him a fee-simple title to the land upon which the insured property was located. He testified that he and his wife, Mrs. Florence Estell McCain, had four children then living, and that his wife wás a daughter of T. J. Pogue and Mrs. S. K. Pogue, and on cross-examination he identified and read in evidence, as an exhibit to his testimony, a deed from the said T. J. Pogue and his wife, Mrs. S. K. Pogue, conveying the land in question to their daughter, Mrs. Florence Estell McCain, “during her natural life and at her death to her children in equal parts. ’ ’ The appellant introduced in evidence this deed from T. J. Pogue and wife to Mrs. McCain, and rested. One of the conditions on which the policy is given any validity by the contract of insurance is that the insured is the sole and unconditional owner in fee of the property insured, and it has been repeatedly held by this court that this clause is reasonable and valid, and that a breach of such stipulation, unless waived by the company, will relieve the company of liability. Rosenstock *401 v. Insurance Co., 82 Miss. 674, 35 So. 309; Groce v. Phœnix Ins. Co., 94 Miss. 201, 48 So. 298, 22 L. R. A. (N. S.) 732; Bacot v. Insurance Co., 96 Miss. 223, 50 So. 729, 25 L. R. A. (N. S.) 1226, Ann. Cas. 1912B, 262; Insurance Co. v. Pittman, 111 Miss. 420, 71 So. 739. In the Bosenstock' case, supra, the court approved, as a correct statement of the law, a quotation from the language of Sanborn, J., in the case of Syndicate Insurance Co. v. Bohn, 65 F. 165, 12 C. C. A. 531, 27 L. R. A. 614: That “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 truly stated in the policy, or if it was not the sole and unconditional ownership of the property described, and their silence and acceptance of the policies was the answer. ’ ’ Likewise, it was held in the Pittman case, supra: That, “where a fire insurance policy has been for a long* time in the possession of insured, he is bound by its terms," though he did not read it. He cannot lay the policy aside and contend that he does not know the provisions in the policy that are contrary to his interest while claiming’ his rights under the provisions therein contained that are favorable to him.” The meaning' of the words “sole and unconditional ownership in fee” is well established. The ownership of an insured is sole and unconditional when no other person has any interest in the property as owner, and the quality of the estate is not limited or affected by any condition. 26 C. J., p. 172. In the Bacot case, supra, the court quoted with approval a definition of sole and unconditional ownership found in 2 Clement on Insurance, p. 152, as follows: ‘ ‘ An insurance ownership is sole when no one else has any interest in the property as owner, and is uncon *402 ditional when the quality of the estate is not limited or affected by any condition. ’ ’ In the case at bar the appellee claimed title under a deed which on its face purported to convey sole and unconditional ownership in fee, but he was met with a deed showing that his grantor had only a limited interest in the property, and, of course, his grantor could convey no greater interest than she owned. Under these deeds the insured could only acquire an estate for the life of his wife, with remainder at her death to her children. It is true that this court has held that the niceties of title will not be inquired into and that “ parties applying fox insurance are not called upon to settle questions of title with very great precision,” but the proof in the case at bar does not present any questions of title to be inquired into or settled. The introduction of these duly executed and recorded deeds, under which the insured could only acquire a. limited interest in the property, constituted at least a prima facie showing of the ownership of only a limited interest therein. The introduction of the deed conveying to the insured’s grantor only a life estate swept the foundation from under appellee’s claim of sole and unconditional ownership in fee, and was a prima facie showing of a breach of the condition of the policy contract, and, in the absence of other proof, entitled the appellant to the peremptory instruction requested by it. The judgment of the court below will therefore be reversed, and judgment entered here for appellant. Reversed, and jiodgment for appellant.