Clapp v. Farmers' Mutual Fire Insurance Ass'n of North Carolina

Douglas, J. This is an action upon an alleged contract of insurance to recover for the loss of property by fire. The defendant refused to pay any part of the loss on the ground that “the interest of the insured in the property was other than an unconditional, unincumbered and sole ownership of the property insured,” and that therefore the policy was void in accordance with its express provisions. It further alleged that the insured had failed to give the notice required by the policy, and that the property was overvalued. The plaintiff alleged that at the time the policy was issued he had fully divulged to the agent of the defendant the exact nature of his interest in the property, and that he notified the defendant of the loss immediately after the fire, whereupon the defendant absolutely refused to pay any part of the insurance. The following are the material parts of the case on appeal: “It was admitted by the plaintiff in his reply, and also in open court, that he held tire real estate upon which the building burned was situate at the time of the alleged contract of insurance was made, under a bond for title executed by Jacob Clapp to plaintiff and a brother’, Simeon Clapp, since deceased intestate, jointly, on the 21th of December, 1882, and that purchase money, $4,250.00, had not been paid, nor any part thereof except the sum of $2,250.00, paid by plaintiff soon after title bond was executed. It was in evidence that the estate of Simeon Clapp, co-obligee in the bond for title was insolvent, and that he left surviving several brothers, Iris heirs-at-law, and that am administrator of his estate had been duly qualified as such. It was further admitted in the course of the trial that the defendant association’s liability was threerfourths of the *391 value of the property destroyed at the time of its destruction, if liable at all. Upon return of the verdict tbe plaintiff moved for judgment, which, defendant met with a counter motion, that upon the verdict and admissions of fact plaintiff was not entitled to judgment, and insisted that the heirs-at-law and personal' representative of Simeon Olapp should be made parties and one-half of the recovery be for them. His Honor held that plaintiff was entitled to judgment. The defendant excepted. The defendant then insisted that if entitled to judgment the plaintiff was entitled to recover only pro rata his interest in the value of the property when destroyed, to-wit: one-half of three-fourths the value as found by the jury. The Court was of a different opinion and gave judgment accordingly. Defendant excepted and appealed, assigning as error: “The ruling of his Honor in not making the heirs-at-law and personal representatives of Simeon Clapp parties, and in not rendering judgment for them for one-half amount of recovery; and that plaintiff v?as entitled to judgment for three-fourths of the value off the property destroyed as found by the jury, and in giving-the judgment as set out in the record.” The jury found all the issues in favor of the plaintiff, whereupon the Court rendered judgment for three-fourths of the value of the property destroyed. There are no exceptions to the evidence or instructions, and therefore the facts are settled beyond question. The only exceptions relate to the rulings of his Honor on pure questions of law, and in them we see no error. The plaintiff, having bought the land jointly with his brother and having paid $2,250 of the purchase money, had an equitable interest in the property, and therefore an insurable interest. *392 This interest he stated, fully and correctly to the agent of the defendant, whose knowledge was the knowledge of his principal. There is no question as to the authority of the agent to issue the policy, and, as he issued it with full knowledge of the plaintiffs limited interest in the property, the defendant can not now be heard to dispute the validity of the policy on that ground alone. There was no contract, express or implied, between the defendant and Simeon O'lapp, and therefore the representatives of the latter have no interest whatever in the policy. The plaintiff did not profess to' be acting for anyone else, and insured only his own interest in the property. It is admitted that Simeon Clapp paid nothing on the land, and that his estate is insolvent. If, therefore^ he and the plaintiff gave their,joint notes for the purchase money, as is usual, the plaintiff would be personally liable for the unpaid balance. Surely he has an. insurable interest in property on which he has already paid a large sum, and the full value of which he may be called on to' pay. These questions have been so fully discussed in the recent case of Grabbs v. Insurance Co., 125 N. C., 389, that it is unnecessary to repeat the argument or the authorities therein cited. See also Horton v. Insurance Co., 122 N. C., 498. The jury found that there was a waiver of the notice and proof of loss required by the terms of the policy, and we find no exception involving the question, nor does anything appear impeaching the propriety of the finding. The judgment is Affirmed.